Beyond bollards: protecting crowded places means not letting the exceptional become the norm


Jon Coaffee, University of Warwick

The Australian government’s new strategy for protecting crowded places from terrorism draws heavily on other countries’ experiences of implementing similar strategies as part of a broader national counter-terrorism agenda.

The US and UK have had similar crowded places policies for a number of years due to persistently high threat levels. Places such as Abu Dhabi have adopted versions of such approaches and embedded security within large buildings and place-promotion programs.

Terrorists have significantly changed their modus operandi in the new millennium. Until 2001, vehicle-borne devices targeting major financial or political centres used to be the hallmarks of international urban terrorism. These have more recently been superseded by person-borne devices – especially suicide attacks – and subsequently Fedayeen-style mass shootings, targeting of crowds with fast-moving vehicles, as well as low-tech, difficult-to-defend knife attacks.

Consequently, traditional counter-terrorism approaches – the construction of defensive cordons to protect valuable and vulnerable assets – are seen as largely inadequate. Our defences have had to be rethought. Terror groups are adopting increasingly innovative methods and tactics aimed at soft targets and more generally crowded places, which cannot be altered without radically changing how citizens experience the city.

Like similar strategies elsewhere, the Australian government strongly emphasises partnerships between a range of stakeholders in providing protective security. Countering terrorism, the strategy notes, is “a responsibility shared by all Australian governments, the community and the private sector”.

A resilient crowded place has trusted relationships with government, other crowded places, and the public. It has access to accurate, contemporary threat information and has a means of translating this threat information into effective, proportionate protective security measures commensurate with the level of risk they face.

Learning from elsewhere – bollards are not enough

Given the nature of the areas being defended, authorities have had to consider issues that previous attempts have paid limited attention to. Security stakeholders in Australia should bear these issues in mind as their program is rolled out.

First, traditional security approaches may be of limited use against many types of possible attack and offer false comfort.

Many have advocated the use of crime-prevention ideas for dealing with the terrorist threat. These manipulate the built environment to reduce the attractiveness and physical access to target places while increasing the likelihood of being caught. In essence this means the mass use of security bollards and high-visibility policing.

While this might reassure many citizens, the emphasis on structures and deterrence models has limited use. Terrorists seeking martyrdom could simply move to other locations that are not as well defended.

Second, issues of risk and timing are really important. Here the Australian guidance has done something that other guidance often fails to do. It has provided a self-assessment tool.

This tool enables owners and managers of public spaces to assess their own risk (or pay a security consultant to do so). This is broadly a positive development, although it does raise the issue of whether or not such non-trained stakeholders feel comfortable doing this or have adequate skills and experience to do it effectively. Appropriate training courses and public awareness campaigns will be vital.

Third, a clear implementation gap is emerging in many countries in the prioritisation of locations that are protected. It is incredibly difficult to cost accurately for designed-in security. Hence a business case for measures that are solely associated with terrorism can be hard to build.

Developers are, in most cases, not legally obliged to adopt counter-terrorism measures. More often than not they will do so immediately after an attack. The cost and who pays for it is a huge issue.

Equally, who is responsible for implementation can be politically sensitive. Is it the government? Is it the owners of the crowded place? Is it the planning and urban design community?

The fourth issue relates to aesthetics. Over recent decades, urban revitalisation has increasingly emphasised inclusivity, liveability and accessibility. These “quality of life” values sit uneasily beside concerns to “design out terrorism” as security becomes part of the design process.

In the aftermath of attacks, or amid fear of imminent attack, obtrusive security features – notably temporary concrete or steel blocks – are commonly “thrown” around key sites to stop vehicle attacks. These are not necessarily aesthetically pleasing.

In the last decade the initial swathe of security bollards and defensive barriers that littered the landscape of many cities after 9/11 has slowly given way to subtler landscape alteration, although in many cases bollard-type solutions still prevail. The predominant view is that security features should be as unobtrusive as possible. This has led to security features being increasingly camouflaged and subtlety embedded within the cityscape.

What can we live with?

How our public places are designed tells us a lot about the type of society we are and the one we wish to live in. In this sense, providing guidelines on protecting against terrorism in crowded places is a difficult task, especially in societies that value freedom of movement and expression but are seen as under threat of attack.

In Melbourne in June, concrete blocks were artistically decorated in the #bollart protest against what many saw as an unnecessary eyesore. The temporary security measures were put in place to prevent vehicle attacks following the Bourke Street incident and the London Bridge terror attack. In time, permanent steel barriers will replace the blocks.

More broadly, counter-terrorism measures deployed in crowded public places must seek to balance security effectiveness with social and political acceptability. We live in dangerous times, but how we react to the risk of terrorism will have impacts on our public realm for many years. In many ways the threat to cities comes as much from our policy responses as the actual act of terrorism. Both have the potential to harm the freedom of movement and expression that define a vibrant city.

The ConversationExperience tells us that, once permitted, hyper-security tends to become permanent. If we want a humane and accessible public realm and a genuinely open society, we should not let the exceptional become the norm as we seek more adaptable and effective ways of coping, in a calm and measured way, with urban terrorism.

Jon Coaffee, Professor of Urban Geography, University of Warwick

This article was originally published on The Conversation. Read the original article.

North Korea tells Australia it is acting suicidally by joining war games


Michelle Grattan, University of Canberra

The North Korean regime has lashed out at Australia, describing its participation in current military exercises with the US and South Korea as “a suicidal act of inviting disaster”.

The North Koreans also targeted Malcolm Turnbull’s recent statements when he said that if the US came under attack from North Korea, Australia would be involved in its defence under ANZUS.

Turnbull hit back on Monday at the Pyongyang statement, saying North Korea had no regard for the welfare of its own population, the security and good relations with its neighbours, or international law.

Australia has about 25 Defence Force personnel involved in this week’s regular Ulchi-Freedom Guardian war games. The Australians have command-and-control responsibilities.

The North Korean statement from a spokesman for the ministry of foreign affairs, reported by the state news agency KCNA, described Turnbull’s remarks about ANZUS as “reckless”.

Meanwhile, it said, Australia’s defence minister and “the military brass hat” had officially announced Australian troops would participate in the joint military exercises.

“Not long after the Australian prime minister had stated that they would join in the aggressive moves of the US, even referring to ANZUS which exists in name only, the Australian military announced that they would dispatch their troops to the aggressive nuclear exercises of the US.

“This is a suicidal act of inviting disaster as it is an illustration of political immaturity unaware of the seriousness of the current situation,” the statement said.

It said the “great irony is that the Australian premier, who had once condemned the military option for confrontation of Trump that it will have destructive consequences, made U turn in his stand at the admonition of the US, taking no account of Australia’s own interests”.

Australia had followed America into the Korean War, the Vietnam War and the “war on terrorism”. “But heavy loss of lives and assets were all that it got in return”, the statement said.

“The Australian government had better devote time and energy to maintaining peace of its own country, instead of forgetting the lessons learned in the past and joining the US in the moves for nuclear war.

“Countries like Australia that join the military adventure against the DPRK [Democratic People’s Republic of Korea], blindly following the US, will never avoid the counter-measures of justice by the DPRK,” it said.

Turnbull said Australia called on all countries “to redouble their efforts”, including through implementing Security Council resolutions, “to bring North Korea to its senses and end its reckless and dangerous threats to the peace of our region and the world”.

Australia’s defence minister, Marise Payne, last week said Australia had played a small role in the exercises since 2010 and “given their regularity and history, they should not be seen in any way as a provocative exercise”.

The exercises, which date from the 1970s, have perennially roused North Korean anger. They come this year amid the extremely high tension between the US and Pyongyang. North Korea has said that with the current drill the US is “pouring gasoline on fire”.

The drills, involving land, sea and air, run from Monday until August 31, with tens of thousands of defence personnel from the US and South Korea participating.

US Defence Secretary Jim Mattis has said “this right now is an exercise to make certain that we’re ready to defend South Korea and our allies over there. And because of the specific circumstance, we want it to be a … heavy command post exercise.”

The ConversationHe said North Korea knew it was a fully defensive exercise “whatever they may say for public consumption”. “We’re very transparent in what we’re doing just to avoid miscalculation.”

https://www.podbean.com/media/player/8ppnw-6fcd65?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Coalition position worsens in Newspoll to trail 46-54%


Michelle Grattan, University of Canberra

The government has lost further ground in Newspoll, now trailing Labor 46-54% in two-party terms, in the wake of the crisis over citizenship.

This is the 18th consecutive Newspoll in which the government has been behind. The two-party fall comes after several polls in which the Coalition trailed 47-53%.

The early part of the poll fortnight was dominated by the issue of the postal vote on same-sex marriage. Then the declaration of Deputy Prime Minister Barnaby Joyce that he had been informed he was a New Zealand citizen began a horror week for the government which ended with Fiona Nash, the deputy Nationals leader, announcing she had British citizenship.

Labor increased its primary vote by two points to 38%, while the Coalition fell one point to 35%. One Nation rose one point to 9%, equal with the Greens, who lost two points over the fortnight.

Malcolm Turnbull’s net satisfaction rating has plunged from minus 12 to minus 20 in the poll, published in Monday’s Australian. Bill Shorten’s net satisfaction also took a hit, deteriorating from minus 15 to minus 20.

Turnbull still has a significant lead as better prime minister – 43-33% – although the gap narrowed from the previous 46-31%.

The poll contains encouraging news for the “yes” case in the postal ballot, with 63% saying they would vote yes to the plebiscite question, compared with 30% who would vote no. More than two-thirds of people (67%) said they definitely intended to vote; another 15% said they probably would.

Nearly half (49%) said they were in favour of the postal plebiscite while 43% were opposed.

Asked whether parliament should provide guarantees in law for freedom of conscience, belief and religion if it legislated for same-sex marriage, 62% said yes and 18% said no.

The support for same sex marriage is strongest among younger voters, with 70% of those aged 18-34 in favour. It is lowest among those aged over 65, with only 49% supporting it.

The ConversationThe poll was of 1,675 people and taken between Thursday and Sunday.

https://www.podbean.com/media/player/8ppnw-6fcd65?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Dry winter primes Sydney Basin for early start of bushfire season


Matthias Boer, Western Sydney University; Rachael Helene Nolan, University of Technology Sydney, and Ross Bradstock, University of Wollongong

It might feel like the depths of winter, but Australian fire services are preparing for an early start to the bushfire season. Sydney has been covered with smoke from hazard reduction burns, and the New South Wales Rural Fire Service has forecast a “horrific” season.

Predicting the severity of a bushfire season isn’t easy, and – much like the near-annual announcements of the “worst flu season on record” – repeated warnings can diminish their urgency.

However, new modelling that combines Bureau of Meteorology data with NASA satellite imaging has found that record-setting July warmth and low rainfall have created conditions very similar to 2013, when highly destructive bushfires burned across NSW and Victoria.

Crucially, this research has found we’re approaching a crucial dryness threshold, past which fires are historically far more dangerous.


Read more: Climate change to blame for Australia’s July heat


How to measure bushfire fuel

On September 10, 2013 several bushfires in Sydney’s West caused havoc well before the official start of the bushfire season. These were a precursor to fires that destroyed more than 200 properties a month later. Warm, dry winter weather had dried out the fuels in Sydney’s forests and bush reserves beyond “normal” levels for the time of year.

The timing and severity of those preseason fires were a reminder that the region’s forests are flammable all year round; they can burn whenever the fuel they contain dries out past a certain threshold.

In most forests, there is an abundance of fuel in the form of leaf litter, dead twigs, branches and logs, lower vegetation such as shrubs and grasses, as well as higher foliage and branches.

The flammability of all these different kinds of fuel depends largely on their moisture content. Leaf litter and fine dead branches on the soil surface can dry out in a matter of days, whereas logs may take weeks or months to lose their moisture. The moisture content of shrubs and tree canopies varies depending on the amount of water in the soil, so they reflect the overall rainfall and temperatures across a whole season.

The flammability of an entire forest is therefore a complex calculation of all these different kinds of fuel (both alive and dead) and their different moisture levels.

Mapping Sydney’s forests

In a recent collaborative study, we combined data from a Bureau of Meteorology project that maps water availability levels across Australia with satellite imagery to develop new tools for mapping and monitoring moisture levels of different fuels in forests and woodlands.

We checked these tools by modelling fuel moisture levels during fires in NSW, Victoria and the ACT between 2000 and 2014, and comparing our predictions to historical bushfires.

Our research has identified critical dryness thresholds associated with significant increases in fire area. Rather than a gradual increase in flammability as forests dry out, when dead fuel moisture drops below 15% subsequent bushfires are larger. Another jump occurs when dead fuel moisture levels fall below 10%. We found similar thresholds in growing plants, although their moisture content is measured differently.

These dryness thresholds are pivotal, because they may represent the breakdown of moist natural barriers in landscapes that prevent fires from spreading. Understanding these mechanisms makes it possible to predict fire risk much more accurately.

As part of this project we compared the fuel moisture in Sydney Basin’s forested areas in 2013 and 2017. As shown in the chart below, currently the live fuel moisture level is tracking well below the 2013 values, and is approaching a crucial threshold (indicated by the dotted line).

The moisture content of dead fuel has been more variable, but it has also dipped below the 2013 curve and, if warm dry weather continues, could reach critical levels before the end of August.


The median predicted dead fuel moisture content and live fuel moisture content in forest areas of the Sydney Basin Bioregion in 2013 and 2017. Black dashed horizontal lines indicate fuel moisture threshold values. The start dates of major fires in 2013 are indicated by orange vertical lines.
Author provided, Author provided

In another worrying sign, mapping shows critically dry live fuel is much more abundant in 2017 than it was in 2013.


Remotely sensed live fuel moisture content in forest areas of the Sydney Basin Bioregion in July 2013 (left) and July 2017 (right). Click to enlarge.
Author provided

It’s clear that much of the Sydney Basin is dangerously primed for major bushfires, at least until it receives major rainfall. Forecasts for windy but largely dry weather in coming weeks may exacerbate this problem.

These new insights into landscape-scale fuel dryness provide a powerful indicator of what might be expected. They also build our capacity for week by week monitoring of fire potential.

The ConversationPreparation by both fire management authorities and exposed homeowners is now an immediate priority, to cope with the strong likelihood of an early and severe fire season.

Matthias Boer, Associate Professor, Hawkesbury Institute for the Environment, Western Sydney University; Rachael Helene Nolan, Postdoctoral research fellow, University of Technology Sydney, and Ross Bradstock, Professor, Centre for Environmental Risk Management of Bushfires, University of Wollongong

This article was originally published on The Conversation. Read the original article.

Where to take refuge in your home during a bushfire



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Fire threatening a house in Pelican Bay in 2006. If you need to shelter from a fire in your house, know where your exits are and be aware of surrounding vegetation.
thinboyfatter/Flickr, CC BY-SA

Douglas Brown, University of Sydney

When you live in a bushfire-prone area you can’t ignore the danger. Most individuals and families address this necessity by preparing a bushfire survival plan. The best way to survive a bushfire is not to be there when it arrives.

For most Australian fire agencies the “leave early” policy has largely replaced the previous “stay and defend or leave early” one. This
reflects an emphasis on preserving human life during a bushfire event – an emphasis that has strengthened since the 2009 Black Saturday bushfires.


Read more: How to prepare your home for a bushfire – and when to leave


Even when planning to leave early, unexpected events can occur. Not being able to find a child or family pet may delay departure until it’s no longer safe to travel. Taking refuge in your home then becomes a last resort, a worst-case scenario. But this contingency is worth considering as part of your bushfire survival plan.

If you do need to take refuge inside your home during a bushfire, which parts are likely to be the safest? As part of my PhD research, I asked 252 residents living in bushfire-prone areas which parts of their houses they would shelter in during a bushfire, which parts they would avoid, and why. I then analysed the features of these locations against the known places where people died in their home during bushfires in Australia from 1901 to 2011.

Determining the safer places to shelter is further complicated as all houses are not the same. There are many different types, with large variations in design, construction materials, location and surrounding vegetation. It is therefore not possible to give absolute answers on where people should take shelter in their homes during a bushfire, but some general guidelines can be given.

Where are the safer spaces to shelter?

Upstairs is generally a more dangerous space to seek shelter during a bushfire. Upstairs levels are more difficult to escape from. Often they have large windows and sliding glass doors which are designed to capture views, but due to radiant heat and strong winds can crack and implode. Upper levels are often constructed of lightweight materials that are more flammable and vulnerable to direct flame contact from burning trees.

The ground floor is generally a safer space to shelter. The ground level usually has more external doors from which the occupant can escape. On a sloping block, however, the easiest level from which to exit may be the first floor. The ground level often has smaller windows (except those leading to entertainment areas). From the ground floor it is easier to get to the driveway and closer to an external water source such as a water tank.

People often suggest the bathroom as a good place to shelter during a bushfire. However, the bathroom can also be dangerous. During a bushfire, mains water is often cut or the pressure is reduced to a trickle. Despite having tiled walls, non-combustible fittings and a water supply, bathrooms like other rooms are vulnerable to the collapse of a burning ceiling when embers have ignited in the roof cavity.

Most bathrooms do not have an external door that residents can use to exit the house. In a bathroom it can be difficult to see the progress of a fire. And as bathrooms are small enclosed spaces they may be more vulnerable to carbon monoxide poisoning.


Read more: Low flammability plants could help our homes survive bushfires


My advice is to look at all the external ground floor doors (while remembering that glass doors can be dangerous because of their vulnerability to radiant heat), and determine which of them provide access to adjoining outside paved, gravel, concrete or other non-combustible areas. You should also see if there is a small window from which you can observe the progress of the bushfire, and if there is a sink close by to store water. Where possible consider installing a fire alarm that has a carbon monoxide sensor with audible and visual alerts.

When you have identified the most suitable place in the house to actively shelter during a bushfire, follow the bushfire preparation activities provided by fire authorities. Some of these will include looking out of a window to follow the progress of the fire and being aware of current bushfire updates on the radio and via mobile phone. There is no such thing as passive sheltering.

Being inside your home as the fire passes offers more protection than being outside. But it should be seen as a last resort, with leaving early the preferred action. Fire agencies work hard to inform residents of days when bushfires are likely, and to provide updates on fires that do break out. Residents in bushfire-prone areas should take these warnings and updates seriously and leave their properties when advised to do so, especially when catastrophic fires are expected.

The ConversationThe advice given in this article is general and may not suit every circumstance.

Douglas Brown, PhD candidate (approved), University of Sydney

This article was originally published on The Conversation. Read the original article.

No legal doubt over decisions Joyce and Nash take: Brandis



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George Brandis said the government would ask the court to deal with the citizenship issue urgently.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

Attorney-General George Brandis has insisted there will be no legal doubt over decisions taken by Deputy Prime Minister Barnaby Joyce and Regional Development Minister Fiona Nash while the High Court determines their eligibility to sit in parliament.

This comes as crossbencher Nick Xenophon has announced he will refer himself to the High Court after being advised he has British overseas citizenship through his father Theodoros Xenophou, who came from Cyprus, a British colony at the time. Xenophon will continue to vote in the Senate.

Meanwhile, cabinet minister Arthur Sinodinos has suggested that perhaps the Constitution’s citizenship section will eventually need to be addressed.

“Down the track after we have sorted this all out and the High Court have had a chance to look at this, maybe we need to go back to some of the reports of the parliament itself about the status of parts of Section 44 in the light of what happened in our society,” he told the ABC.

Joyce and Nash are under pressure from the crossbenchers and the opposition to stand down from the ministry while their status is determined. A third National whose parliamentary eligibility is before the court, Matt Canavan, resigned from the ministry.

All three were dual citizens when elected, and so could be ruled out under Section 44 of the Constitution, which prohibits dual nationals being eligible for parliament. The government, however, has said repeatedly it is confident the court judgment will be in their favour.

Brandis pointed to Section 64 of the Constitution, which allows a person to be a minister for three months without being in the parliament.

“I do not think there is a problem and I don’t think there’s any doubt,” he said.

Professor of constitutional law at Sydney University, Anne Twomey, in an article for The Conversation, wrote that the ministers’ decisions could come into legal doubt from when “they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

“For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences,” Twomey wrote.

Brandis said the government would ask the court to deal with the citizenship issue urgently. “I think realistically that may be in the first fortnight of October,” he told Sky. The court now has the citizenship circumstances of seven current and former MPs to consider. The government has confirmed they are all paying their own legal costs.

The Nick Xenophon Team made it clear at the weekend that its House of Representatives member, Rebekha Sharkie, would not vote against the government on matters of confidence or supply. This followed Sharkie being reported in Fairfax Media saying she had decided she would no longer support the government on these. She said she was “quite frustrated with the prime minister” for retaining the ministers in cabinet.

In the weekend statement, Sharkie continued to call for Joyce to stand aside as minister pending the High Court decision. But the statement said: “NXT has made it clear that until the High Court decision, they expect to support the government on matters of confidence and supply”.

Xenophon said on Saturday: “Overnight I have received advice from the United Kingdom Home Office that they consider I am a British Overseas Citizen (a historical category of citizenship formerly known as a Citizen of the United Kingdom and Colonies).

“The UK Home Office has advised this on the basis that my father, Theo, was born in Cyprus when it was under British occupation, and migrated to Australia in 1951 – over 66 years ago.

“The great irony here is that my father left Cyprus in order to escape British Colonial rule.

“At that time he appears to have travelled to Australia on British Colonial travel documents.

“I was born in Adelaide, South Australia … in 1959.

“It was obviously unknown to me or my family that I was deemed to be a Colonial UK Citizen by virtue of the 1948 British Nationality Act.

“Cyprus became independent of its colonial power on August 16, 1960. At the moment of independence, every Cypriot lost their colonial UK citizenship status.

“I would have lost that colonial status as well if my father was living in Cyprus at the time or in any other country in the world except, according to the then British Nationality Act, these nine countries: Canada, Ceylon (now Sri Lanka), India, New Zealand, Pakistan, Union of South Africa, Southern Rhodesia (now Zimbabwe), Newfoundland (then a separate dominion, now part of Canada) and Australia …

“The oral advice from the UK Home Office last night is that this whole scenario is a quote ‘rare peculiarity’.

“Citizens of the UK and Colonies – CUKCs – without the right of abode in the UK, were reclassified as British Overseas Citizens on the 1st of January, 1983, after British nationality legislation was modernised.

“The UK Home Office now believes I am a British Overseas Citizen.

“I have made inquiries of the Home Office and researched what it means to be a British Overseas Citizen.

The Conversation“The literature on this and oral advice from the UK Home Office is that this form of citizenship is quote ‘useless’, and indeed in many cases it confers fewer rights than an Australian citizen travelling on an Australian passport to the United Kingdom would have,” Xenophon said.

https://www.podbean.com/media/player/8ppnw-6fcd65?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?



File 20170818 28171 9k5vo1
It’d be better for ministers like Barnaby Joyce to have any potentially contentious decisions made by an acting minister until their citizenship issues are resolved.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

What would happen if the High Court found that ministers Barnaby Joyce, Fiona Nash and Matthew Canavan had not been validly elected at the last federal election in July 2016?

In the case of the senators (Nash and Canavan), the High Court, sitting as the Court of Disputed Returns, would most likely order a special recount of the votes, as it did in relation to senators Bob Day and Rod Culleton, with the seat then most likely going to the next person on the Coalition ticket.

This may disrupt the balance between the National Party and the Liberal Party in the Senate, as those most likely to replace the two National Party senators would be from the Liberal Party.

Joyce’s seat, being in the lower house, would most likely go to a byelection, as previously occurred in the cases of Jackie Kelly and Phil Cleary. Like Kelly and Cleary, Joyce could stand for his seat at the byelection, as he has now renounced his New Zealand citizenship.

A bigger question arises, however, as to the validity of decisions that they made as ministers since the last election. If they were not validly elected in July 2016, then Section 64 of the Constitution becomes relevant. It says:

… no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

That three months ran out a long time ago. So, for a considerable time they would have been exercising powers conferred upon ministers by statute, without actually being ministers. Were those decisions valid? Could they be challenged?

This brings into play the “de-facto officer” doctrine. This is a common law doctrine that protects people who rely on acts done in the apparent execution of their office by an officer who appears to be “clothed with official authority”, even though they may not validly hold that office.

It is not aimed at protecting those who invalidly exercise power, but rather those who rely in good faith on the apparent authority of those who publicly exercise power. The doctrine is also relied on to give certainty concerning the validity of acts of persons whose appointment or election may later be challenged.

The public policy behind the doctrine is to avoid the chaos that would ensue if decisions of public officials were automatically rendered invalid because of a later discovered defect in their election or appointment. For example, the decisions of a Western Australian magistrate were upheld, even though they were taken after she had reached the compulsory age for retirement.

The application of the doctrine, however, is uncertain. It does not necessarily apply to all decisions of an invalidly appointed officer, and therefore is likely to lead to litigation if decisions are contentious.

Its application has also been doubted in relation to matters that concern a breach of the Constitution. For example, High Court Justice Michael Kirby observed in a 2006 case about the constitutional validity of acting judges that:

It is difficult to reconcile the [de facto officer] doctrine with the fundamental role of the federal Constitution as the ultimate source of other laws. Constitutional rulings can occasionally be unsettling, at least for a period. However, this is inherent in the arrangements of a nation that lives by the rule of law and accords a special status to the federal Constitution as its fundamental law.

Moreover, the doctrine ceases to protect the actions of the purported official at the point when they lose the cloak of authority, such as when the validity of their appointment is contested, or their lack of qualification to hold office is “notorious”.

It is quite possible that point arises when, in the case of a Commonwealth minister, they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences.

The ConversationInstead, such actions, if they need to be taken before the question of the status of these ministers is resolved by the High Court, could be taken by acting ministers to ensure their validity and avoid the financial and social costs of further litigation and uncertainty.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

Grattan on Friday: Malcolm Turnbull’s government has finally defied fiction



File 20170817 28151 1bx73jn
With the eligibility of the Nationals’ leadership under question, Malcolm Turnbull has had a nightmarish week.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

In a week belonging more appropriately to Shaun Micallef comedy than parliamentary reality, it’s arguable Pauline Hanson’s burqa stunt wasn’t the most extraordinary thing that happened in Canberra.

Hanson has extreme beliefs and therefore it mightn’t be so surprising – though it is appalling – that she’s willing to use the parliament as a stage for extremely bad behaviour.

In donning the burqa purchased on eBay and entering the Senate chamber, she was as attention-seeking as the streaker who races naked across the football ground, though her motive was darker. Let’s call out her action, but not play into her cynical pursuit of mega publicity.

Entirely beyond imagination was the week being bookended by the Nationals leader, Barnaby Joyce, and his deputy, senator Fiona Nash, standing up in their respective houses to announce they were dual citizens (he a Kiwi, she a Brit).

Joyce and Nash are remaining in cabinet – unlike their Nationals colleague Matt Canavan – and in their leadership roles while the High Court determines the fate of all three, among the batch of cases involving dual citizenship. At issue is their eligibility under the Constitution’s Section 44, which bans dual nationals standing for parliament.

Australian Conservatives’ senator Cory Bernardi, formerly a Liberal, suggested on Thursday that parliament should be prorogued – that is, suspended – until citizenship questions and any subsequent byelections are sorted.

But suspending parliament would disrupt the normal course of government business, delaying legislation and, crucially in political terms, signalling panic.

Joyce continues to participate in parliamentary votes, so the government retains its one-seat majority in the House of Representatives. By its own lights, what credible story could it advance to put parliament on hold? It would look the ultimate in desperation.

There is no doubt the Joyce affair presented the government with a crisis. It then became a matter of management and this was seriously bungled.

Once it took the decision to keep Joyce in cabinet and in the deputy prime ministership, the government was always destined to be vulnerable to a ferocious Labor attack.

But its shock and awe response, with the absurd notion of a “treacherous” Bill Shorten and a Labor conspiracy across the Tasman with New Zealand Labour, was deluded from the start.

First, it was a try-on. Both Labor here and Labour in NZ were somewhat apologetic for their roles in the affair, understandable at least for NZ Labour which is facing an election. But what exactly was the wrongdoing by Labor here? Is there anything inherently “treacherous” about a Labor staffer using contacts to check in NZ who is eligible to be a citizen of that country?

Second the tactic, played in stereo, opened the government to ridicule. In particular, her exaggerated performance raised questions about the judgement of the usually astute Foreign Minister Julie Bishop, just days after a laudatory article had asked why she wasn’t mentioned more often as a possible future leader.

Although the circumstances are different, the hyperbolic accusation of “treachery” carries a remote echo from Turnbull’s book The Spy Catcher Trial, about the British government’s attempt to stop the Australian publication of a book by a former UK intelligence officer.

Turnbull, whose successful appearance in the high profile case gave an early boost to his reputation, wrote that then UK opposition leader Neil Kinnock – whom he pressed to “humiliate” the UK attorney-general in the British parliament – “was vigorously attacked in the House of Commons for ‘treacherous’ conduct”, in discussing the case with him.

If Turnbull were prone to bad dreams, his nightmares for the next few months would go something like this.

The government would lose the High Court case challenging the postal ballot on same-sex marriage, or win it and the ballot would return a “no” result.

It would lose Joyce’s citizenship case – and Nash and Canavan would be knocked out as well.

It would then lose the byelection in Joyce’s New England seat, with goodness knows what consequences in the resulting hung parliament.

Oh, and there would be a bruising battle within the government over energy policy, resulting in a much-criticised, wishy-washy outcome that gave no certainty for future investment.

But Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.

He’s predicted in the most unequivocal terms that Joyce will be vindicated in the High Court.

If things went well, the postal vote would sail through the legal challenge, and return a yes vote by a convincing margin with a substantial turnout, making the ballot beyond reasonable reproach, whatever the gripes of the losers. That would lead to parliament changing the law to deliver same-sex marriage by Christmas.

Energy policy would be hard fought within the government’s ranks, but the resulting compromise would be one that was seen as credible and welcomed by business.

The optimistic scenario – we might as well include in it at least one 50-50 Newspoll – would leave the government with a hope of regrouping, after an end-of-year ministerial reshuffle.

Which scenario, or what mixture of them, will come to pass is unforeseeable. But given how life goes for this government, some might regard the prospects for anything like the optimistic one as being in near-miracle territory.

Meanwhile, things are presently so grim they recall vividly some of the blackest times of the Gillard government.

Monday’s Joyce bombshell drove the same-sex marriage battle somewhat into the background, while both sides gear up for intense campaigns and questions remain about the postal ballot.

One of these is, I think, particularly interesting – that is, the argument that the result won’t be a true one because young people especially will be under-represented. The young are, collectively, more in favour of same-sex marriage than older people but less likely to be on the roll, to have a fixed address, or to be familiar with the post.

While this is a problem, I will be a bit contrarian. I think this both demeans the young and lets them off too lightly. They are supposed to enrol for elections anyway; if they have a view on the marriage issue there is both the incentive and opportunity to do so for this ballot.

A week is left – the rolls close August 24. The mobility challenge applies for general elections – it’s a hassle, but not insurmountable.

As for not using the post – well, that is like saying older people weren’t brought up with computers. Sorry, but one has to move with the times – even if, in this case, it’s moving backwards.

Young people are highly savvy with technology – I just don’t accept they can’t come to grips with posting a letter. If in doubt, they can always ask their grandmothers.

The ConversationThe nation is considering an important social issue – young Australians should get on the roll and vote.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

New shock rocks government: Nationals’ deputy Fiona Nash a dual British citizen



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Fiona Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

The government has been hit with another bombshell in the citizenship crisis, with the deputy leader of the Nationals, Fiona Nash, found to have dual British nationality.

Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break. Her case will be referred to the High Court when parliament resumes on September 4.

This means that both the Nationals’ leader, Barnaby Joyce, and his deputy will be before the High Court to determine whether they are ineligible to sit under Section 44 (i) of the Constitution, as will the Nationals’ former cabinet minister Matt Canavan. The section bans people with dual citizenship being elected.

Coming as soon as parliament met on Monday and just as it adjourned on Thursday, the Joyce and Nash statements respectively bookended a disastrous week for the Turnbull government.

Like Joyce and unlike Canavan, Nash, who is minister for regional development, will stay in cabinet, and will also remain deputy leader, while the court considers her position.

Nash told the Senate that after Joyce’s statement on his dual New Zealand citizenship, she sought advice from the UK Home Office. By Monday evening she was told a caseworker there believed she was a British citizen by descent through her Scottish-born father.

Her mother was born in Australia and was an Australian citizen; her father was born in Scotland in 1927. Her father died nine years ago, and her mother five years ago.

“I was born in Sydney in 1965. My parents divorced when I was eight and my mother raised me. I had very little contact with my father throughout his life,” Nash said.

“Growing up, my parents always told me that I was not a dual citizen. My understanding since early childhood was that in order to be a dual British citizen, I would need to apply for it.”

She said an internet search revealed a host of websites saying that having a Scottish-born father allowed a person to apply for citizenship, while mentioning nothing about automatic citizenship by descent.

She said the government had sought legal advice from the UK about her situation. This had been received on Thursday, and had been considered by a committee of cabinet late Thursday. Advice had been received from the solicitor-general shortly before she spoke.

“I have just met with the prime minister and am taking this opportunity to make the Senate aware at the earliest possible opportunity of the position,” Nash said.

She said that on the basis of the solicitor-general’s advice, Malcolm Turnbull “has indicated to me that he sees no reason for me to stand aside from my portfolio responsibilities.”

Labor greeted Nash’s stated timeframe with some scepticism.

Senator Katy Gallagher, manager of opposition business in the Senate, said as Nash had admitted, she’d “known since Monday that she was a dual citizen, yet waited until one minute before the Senate rose for a two-week break to inform the parliament. This is simply not good enough.”

The ConversationShe said Turnbull needed to explain why he was holding Joyce and now Nash to a lesser standard than Canavan, and not requiring them to stand down.

https://www.podbean.com/media/player/hu9ay-6f0803?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.