High stakes for Turnbull government as High Court hears MPs’ citizenship cases


Michelle Grattan, University of Canberra

Barnaby Joyce is on tenterhooks. Despite Malcolm Turnbull’s confidence that the High Court will find for him, Joyce’s parliamentary eligibility is a key to how the government finishes the year.

From Tuesday to Thursday, the court will consider what is surely one of the most extraordinary set of cases to come before it – the constitutional position of seven current and former MPs who were dual citizens.

All but Joyce are or were senators, which means that the only potential byelection that could be caused is for Joyce’s seat of New England. Three are Nationals: Joyce, Fiona Nash and Matt Canavan. Canavan quit the ministry (but not the parliament) when his issue arose; Joyce and Nash remain on the frontbench.

The two Greens, Scott Ludlam and Larissa Waters, resigned from parliament when they discovered their dual nationality. It was Ludlam’s departure that started the dominoes falling, as others checked their positions. Both Greens argue they were ineligible to sit – although the Commonwealth is actually saying Waters was eligible.

The remaining two are One Nation’s Malcolm Roberts, and Nick Xenophon.

Roberts, Ludlam and Waters were born overseas. The rest had foreign citizenship by descent. Joyce and Ludlam were New Zealanders; Nash, Xenophon and Roberts had British citizenship; Waters found herself a Canadian because she was born there during her parents’ brief stay; Canavan was Italian.

There have been some bizarre twists. Canavan said initially his mother had signed him up to Italian citizenship without his knowledge; later it was found she hadn’t had to – he already had it.

This latter fact is important for the Commonwealth’s legal argument. It is contending the constitutional provision about citizenship was only intended to exclude those who acted positively to obtain foreign citizenship or knowingly kept it. If Canavan’s Italian citizenship was gained by positive action, he wouldn’t be protected by that argument, as he would be if he were Italian by descent.

Xenophon had a very weak form of British citizenship, via his father, who had emigrated from Cyprus, which was a British territory.

The court has already declared that Roberts, who sent questions about his status to defunct email addresses, was a British citizen when elected, although it has not yet ruled on his eligibility.

Section 44 (i) of the Constitution reads clearly enough, on the face of it.

A person cannot be chosen for or sit in federal parliament if he or she:

… is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power.

To clear themselves of this potential problem, an aspiring parliamentarian has to take proper steps to renounce a foreign citizenship.

It’s notable the major parties, which have good vetting, aren’t caught up in this case, although there have been allegations against some of their MPs.

The government is arguing that if the MP was Australian at birth (whether born here, or abroad to Australian parents) and wasn’t aware of their dual citizenship, they should not be found ineligible – in other words, that ignorance is a defence.

But if the MP was born overseas and later naturalised, the government argues, they were on notice about potentially being a foreign citizen, regardless of what they thought was the case. In this instance, according to the government’s argument, ignorance is not a defence.

If the court clears most of the MPs, it would be an effective rewrite, through interpretation, of the literal wording of this section.

The potential implications of the court’s decisions are wide and varied.

With Ludlam and Waters already out of parliament, the issue is just how they are replaced. If the court agrees with their own assessments that they were ineligible, their replacements will be the next candidates on the Greens 2016 tickets in Western Australia and Queensland, respectively Jordon Steele-John and Andrew Bartlett (a one-time Australian Democrats senator and leader).

If the court upheld the eligibility of one or both, the replacement or replacements would be chosen by the party. Ludlam has indicated he would not seek nomination; Waters, anxious to return to parliament, would be expected to do so.

It’s always possible, incidentally, for someone elected via a countback to then resign, leaving the way for the party to choose the replacement.

If Roberts is knocked out, the next on the One Nation ticket is Fraser Anning, who recently avoided another constitutional impediment: bankruptcy.

Disqualification of Xenophon would see Tim Storer of the Nick Xenophon Team (NXT) installed. But if Xenophon’s eligibility is upheld, he will leave the Senate anyway, to contest the South Australian election. In that circumstance, his party would choose who followed him.

The disqualification of Nash and Canavan would lead to candidates down their respective 2016 New South Wales and Queensland tickets replacing them. That would create some internal complications regarding the numbers between the Coalition parties.

Professor Anne Twomey, from the University of Sydney Law School, noted that if Nash were disqualified and a recount held, she would most likely by replaced by the Liberal who was next on the joint ticket. She said:

Even if that Liberal then resigned in an effort to pass the seat back to the Nationals, the constitution requires that the person who fills the seat is a member of the same party as the senator who was ‘chosen by the people’.

This would not have been Nash, as she was disqualified, and therefore never validly chosen. It would be the Liberal who won the seat on the recount. This would mean that she would have to be replaced by a Liberal, upsetting the balance in the Coalition.

The loss of one or both National senators would also mean a reshuffle of portfolios. This would fit with Turnbull’s desire for an end-of-year reshuffle, but test the Nationals’ talent pool. (Canavan is out of the ministry but Joyce is acting in his roles.)

But it is the finding on Joyce that has the big implications. If he were forced to a byelection, it would rock the government – even though he would almost certainly retain his seat.

The first issue would be whether he stood down from the ministry.

Twomey noted that while the constitution allows a person to be a minister for three months without holding a seat, the problem would be that Joyce had not validly held a seat since July last year – “which suggests that his three-month grace period is well and truly over. On that basis he would have to stop acting as a minister immediately.”

With Joyce out of parliament, the government would lose its majority on the floor of the House of Representatives. The result of particular votes would depend on the issue, the crossbenchers and – if it came to that – the Speaker’s casting vote.

Fighting a byelection would be distracting and disruptive for a government struggling in the polls.

The former independent member for New England, Tony Windsor, who is maintaining in the High Court that Joyce should be disqualified, has not ruled out running in a byelection. One Nation could be in the field, as could the Shooters, Fishers and Farmers Party, whose support will be tested in the NSW byelections this weekend.

The Newspoll quarterly breakdown, published this week, has found the government under pressure in regional areas. But a ReachTEL poll done last month for the Australia Institute found the Nationals polling 44.6% in New England, Windsor 26.5% and One Nation 9.8%, Labor 8.4%, and the Greens 2.4%.

The Queensland election, expected to be announced very soon, would be another dynamic in a byelection situation.

If, on the other hand, Joyce’s eligibility is upheld, Turnbull’s end-of-year reshuffle becomes much easier, especially with a strong win for the “yes” case now expected in the marriage ballot.

That still leaves the challenge of energy policy. Energy Minister Josh Frydenberg on Monday signalled the government was turning its back on a clean energy target, a reflection of the strength of the conservative voices within Coalition ranks – a combination of right-wing Liberals and the Nationals.

On the present timetable, the government is likely to take the broad outlines of its energy policy to the Coalition partyroom when parliament resumes next week.

The ConversationBut the situation is fluid, with the outcome in the High Court the known unknown. While the timing isn’t precise, the court is expected to be quick with its decision. It is obviously not driven by politics, but it is alert to the need to provide political certainly as soon as possible.

Michelle Grattan, Professorial Fellow, University of Canberra

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

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What should Australian companies be doing right now to protect our privacy


David Glance, University of Western Australia

Australians are increasingly concerned about how companies handle their personal data, especially online.

Faced with the increasing likelihood that this data will be compromised, either through cyber attacks or mishandling, companies are now being forced into a more comprehensive approach to collecting and protecting customers’ personal data. The question remains – what is the best approach to achieving this goal?

The Organisation for Economic Co-operation and Development (OECD) has proposed that instead of talking about cybersecurity – companies, organisations and nations should be viewing the problem from a digital security risk management perspective.

Cybersecurity often overlooks risks to data that have nothing to do with a “cyber” element, even if people could agree on a definition of that term. In the case of Edward Snowden for example, he used a colleague’s credentials to access the system and copied files to a USB drive.

Digital security risk management involves getting everyone in an organisation to see digital risk as part of the overall risks that the organisation faces. The extent of risk any organisation is willing to take in any particular activity depends on the activities value. The aim is to manage the risk to a level that is acceptable to all parties.

What do you do about the weak link: humans?

It is worth remembering that in the case of the Equifax breach in which the personal details of up to 143 million customers in the US were leaked, it was largely human errors that were to blame.

Put simply, the person who was responsible for applying the patch (a piece of software designed to update a computer program or its supporting data, to fix or improve it) simply didn’t do their job. The software that was supposed to check whether the patch had been applied also failed to pick this up.

Until humans can be taken out of the equation entirely, it is almost impossible to remain entirely secure, or to avoid the inadvertent disclosure of personal and private information. Insider threat (as this type of risk is known) is difficult to combat and companies have tried various approaches to managing this risk including predictions based on psychological profiling of staff.

Automation and artificial intelligence may be a way of achieving this in the future. This works by minimising the amount of sensitive information staff have direct access to and surfacing only the analysis or interpretation of that data.

A litany of recent breaches

If you needed convincing about the vulnerability of personal data on the Internet, you only need look at Gemalto’s data breach website or DataBreaches.net.

The breaches of private and personal information don’t recognise national boundaries with hacks of companies like Yahoo having affected 3 billion users, including millions of Australians.

Of course, Australian companies and organisations have also been involved with spectacular data breaches. Last year saw the Australian Red Cross expose 555,000 customer records online.

Of more concern was the Australian Department of Health had published online what they believed were de-identified records of Medicare and pharmaceutical claims of more than 3 million patients. Researchers at the University of Melbourne discovered that the “encrypted” doctor provider numbers could be decrypted.

Are we looking at it in the wrong way?

Whilst there are practical steps companies can take to protect digital systems and data, there are more fundamental questions companies should be asking from a risk perspective. In order to navigate these questions, companies need to understand the data they collect and perhaps surprisingly, this is something most companies struggle to do.

The 13 Australian Privacy Principles from the Office of the Australian Information Commissioner outline the basics of how organisations and agencies should handle personal information. The practical application of these principles involves an approach called Privacy By Design for all applications and services companies offer.

Enter confidential computing

For CSIRO’s Data61, the answer to breaches of this sort is “confidential computing”. Data61 is tasked with data innovation and commercialisation of its research ideas. Confidential computing is the remit of Data61’s latest spin-off, N1 Analytics.

The main aspect of confidential computing involves keeping data encrypted at all times and using special techniques to be able to query data that is still encrypted and only decrypting the answer.

This can even allow others outside an organisation to query internal data directly or link to it with their own data without revealing the actual underlying data to either party.

Aside from the case of allowing the use of sensitive data in research, this approach would allow a company with financial information say, to share this data with an insurance company without handing over sensitive information but theoretically letting the insurance company carry out extensive data analytics.

What companies should do now to protect your data

As a starting point, Australian companies should only collect the minimum of personal information that the business actually needs. This means not collecting extra information simply for marketing purposes at some later date for example.

Companies then need to explain in simple, clear, terms why information is being collected, what it is being used for and get users to consent to giving that information.

Companies then need to secure the data that is collected. Security involves dedicated staff understanding the data that is kept by a company and taking responsibility for its physical security and for controlling who has access, when they have access and what form they can access the data.

The ConversationLastly, they need to understand and enact a risk management approach to all digital data. This means that this is part of the overall culture of the company for every employee.

David Glance, Director of UWA Centre for Software Practice, University of Western Australia

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

The Hanson effect: how hate seeps in and damages us all



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A client whose hair she had been cutting for 20 years came in as usual, and then, without any prompting or preamble, launched into a tirade against Muslims.
Shutterstock

Denis Muller, University of Melbourne

Such hair as I have is cut from time to time by Mrs E, who runs a one-chair salon in my neighbourhood.

She has been in business there for 40 years. She knows all about the history of the street and many of her clients have been coming to her for half a lifetime. The salon is shut on Mondays, when she cuts the hair of the elderly and disabled in various local institutions.

Mrs E is a petite woman with a cloud of brown hair, a bright smile and that empathetic personality that fits so many hairdressers for their parallel occupation of informal counsellor. Under her hairdresser’s smock she wears a dress or a blouse and trousers.

She came to Australia as a child from the Balkans, grew up, married, had two sons. Australia is home and a place where she says she has always felt welcome, until the other day.

A client whose hair she had been cutting for 20 years came in as usual, and then, without any prompting or preamble, launched into a tirade against Muslims.

Mrs E heard her out. As a rule, like most sensible businesspeople, she resists being drawn into conversations about sex, religion or politics.

But eventually it became too much. “I’m a Muslim,” she told the client, “and I very much regret that after 20 years I must tell you I will no longer cut your hair”.

The salon contains no outward sign of her faith: nothing in her appearance or in the room itself gives it away. For her, it is something private; nothing to do with her professional life.

It happened that I came in about a week later. Mrs E and I often talk in general terms about what’s going on in the world. She knows I am a journalist and academic and I think she feels safe pushing her conversational boundaries slightly.

She told me this story and as she did so, the hurt was written all over her face.

And after nearly a lifetime in Australia, she said she felt just that little bit less welcome.

So this is how it goes.

Hate speech becomes part of the currency of national debate and is exploited for political purposes. In 1996, Pauline Hanson delivers her notorious maiden speech in which she says Australia is being “swamped by Asians”. John Howard, as prime minister, dog-whistles that this is all about free speech.

In 2001, the so-called Tampa election occurs. Boat people – overwhelmingly Muslim – become the butt of Howard’s assertion of national sovereignty:

We will decide who comes to this country and the circumstances in which they come.

There are votes in this and both sides of politics pile on. In the midst of the 2013 election, Labor’s Kevin Rudd – the same man who claims Dietrich Bonhoeffer as an inspiration – slams the door on asylum seekers by striking deals with Nauru and Papua New Guinea that Australia is still living with.

In 2014, the federal government tries to weaken the Racial Discrimination Act in what is said to be the interests of free speech. Attorney-General George Brandis asserts that “people have a right to be bigots”.

In 2015, research conducted for the Melbourne Social Equity Institute finds that the single most important driver of negative attitudes toward asylum seekers is religious prejudice, sometimes expressed as concern about the “Islamisation” of Australia.

In August 2017, Hanson wears a burqa into Senate question time. Brandis discovers where bigotry can lead and assails her for an “appalling stunt” disrespectful of the Muslim faith.

The ConversationEventually, the political licensing of racism and religious intolerance seeps into the fabric of society. It might take a generation or it might take longer. But when it does it stains and rots that fabric, eating away at people’s sense of belonging, undermining the Australian multicultural project, and in a small suburban hair salon, a middle-aged woman feels emboldened to vent her prejudice, doing harm and hurt to someone who has been tending her person for 20 years.

Denis Muller, Senior Research Fellow in the Centre for Advancing Journalism, University of Melbourne

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

Xenophon’s shock resignation from Senate to run for state seat



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Nick Xenophon will resign from the Senate to pursue a career in South Australian politics.
AAP/David Mariuz

Michelle Grattan, University of Canberra

Key crossbencher Nick Xenophon, whose party commands three crucial Senate votes, has announced he will quit federal parliament to run for a state seat in the March South Australian election.

Xenophon’s shock announcement comes ahead of the High Court judging whether he is entitled to sit in parliament, because he is a dual Australian-British citizen by descent. The case will be in court next week, and a quick decision is expected after that.

His departure won’t change the numbers in the upper house. If he loses the court case, he will be replaced by the next candidate on the Nick Xenophon Team (NXT) ticket. If he wins, his party will fill the casual vacancy he creates. Either way, the NXT will have three senators. It also has a House of Representative member, Rebekha Sharkie.

But Xenophon’s exit could substantially affect the dynamics in negotiations with the government. He has been a tough, canny but pragmatic bargainer, extracting concessions in return for supporting legislation. The two other senators in the NXT, Stirling Griff and Skye Kakoschke-Moore, only entered parliament at the 2016 election.

Xenophon said he would remain in the Senate until the High Court handed down its decision. He denied his decision to quit had been made because of the threat to his position.

Xenophon, heading a team of state SA-BEST candidates, said he would run in the electorate of Hartley, where he lives. It is a marginal seat held by the Liberals.

He hopes the party can gain the balance of power, but ruled out serving as a minister in a SA government. “Once you do that, you’re in the tent”, and then “you can’t be a fearless watchdog,” he said.

“Unashamedly, we want the balance of power to drive deep and lasting reforms in our state’s political institutions and our processes because there is a lack of transparency and accountability,” he said.

“Having candidates that get elected to hold the balance of power will be a game changer for lasting reforms for the state. It is coming from the political centre, not the extreme right or left.”

He plans to keep a strong hand in with the federal party. “I will, of course, still have a very active and direct role in decisions made at a federal level with NXT,” he said.

“With SA-BEST and NXT holding the balance of power in both the state parliament and the federal Senate, we will work together as a united team under my leadership to drive real change to improve the lives of all South Australians.”

Xenophon started in state politics, elected on an anti-poker-machine platform and serving in state parliament between 1997 and 2007, before winning a Senate seat at the 2007 election.

He said SA politics was “broken, politically bankrupt”.

“I’ve decided that you can’t fix South Australia’s problems in Canberra without first fixing our broken political system back home.” He said since last year’s massive power blackout in SA and its record power prices, “I have concluded they are symptoms of a much bigger and deeper problem”.

The ConversationSA was at a crossroads, he said. The state had long been falling behind because it had been failed by its leaders, parties and institutions.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Nick Xenophon set to go back to where he came from



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Nick Xenophon is a tough dealmaker who demands concessions in return for his crucial numbers.
AAP/David Mariuz

Michelle Grattan, University of Canberra

Nick Xenophon, the master of the stunt, is about to indulge in one more before he leaves the Senate for a run at ruling the South Australian roost from its crossbench.

After his shock announcement that he’s about to quit federal parliament, Xenophon is off to the US where, early on Monday morning Australian time, he’ll appear with Australian Ugg boot manufacturer Eddie Oygur to protest outside Deckers Outdoor Corporation headquarters in Santa Barbara.

The small business of “Aussie battler” Oygur is being sued for an alleged breach of trademark of the word “Ugg” and the boot’s patent design.

They’ll have with them, according to the pre-publicity screed from Xenophon’s office, “a flock of sheep”. It’s all about pulling wool over consumers’ eyes and fleecing Eddie, you see.

It’s typical Xenophon, an extraordinarily popular and populist politician who specialises in the corny as well as the canny.

Xenophon insists his resignation is not influenced by the cloud over his parliamentary eligibility – the High Court next week considers his, and other MPs’, dual citizenship. If that went badly for him, he’d be out of the Senate anyway.

We can accept his word. Not only do colleagues say he’s been chewing over the possible change for months – although the actual decision is recent – but a source within the government ruefully admits there were hints that weren’t picked up at the time.

Regardless of the court outcome, the Nick Xenophon Team (NXT) numbers are safe. If he loses the case, Xenophon’s Senate spot would be filled by the next person on the 2016 election ticket – Tim Storer, who runs a trade consultancy. If his position is upheld his party will choose his replacement.

At last year’s election Xenophon went from a one-man band to having a team of three senators and one lower house member. NXT Senate support is needed to pass government legislation that is opposed by Labor and the Greens.

With a government that wants to get measures through, the NXT – like Pauline Hanson’s One Nation, with four Senate votes – is in an enormously powerful position. The difference between Xenophon and Hanson is that he usually extracts a price.

He’s a tough dealmaker, who demands concessions in return for his crucial numbers.

Government negotiators sometimes can’t quite believe what they are having to give him. Most recently he received a package worth more than A$60 million for backing the media reform bill.

Earlier, as part of a deal to pass company tax cuts, he secured a one-off payment to help with high power prices for people on aged and disability pensions or the parenting payment, costing the budget some $260 million.

Leading his SA-BEST party for the March election, Xenophon wants to extend that power to state politics – where he started, elected in 1997 on an anti-pokies crusade.

“With SA-BEST and NXT holding the balance of power in both the state parliament and the federal Senate, we will work together as a united team under my leadership to drive real change to improve the lives of all South Australians,” he said in his statement announcing his resignation, which will wait until after the High Court decision.

All the signs are SA-BEST will do well, harvesting people’s discontent with the major parties. Xenophon himself will contest the marginal Liberal seat of Hartley, where he lives.

His personal entry into the SA contest will give much more heft to SA-BEST – already with a strong vote in private polls – and strike more alarm into both Liberals and Labor. He is keeping his counsel on which side he would support in a hung parliament, so maximising uncertainty. The party will not issue preferences.

ABC analyst Antony Green predicts Xenophon’s party “will poll well enough to finish first or second in enough seats to make it very unlikely either side can win a majority in its own right”.

There will be a dozen electorates in which SA-BEST will be very competitive, according to Green. He says Xenophon’s entry will be better for the Labor Party than the Liberal Party, because “he’ll be more of a challenge in Liberal seats”.

Xenophon’s departure leaves his Canberra team with considerable uncertainty. While its numbers are preserved, it has no experienced person to step into Xenophon’s shoes.

And from what Xenophon said on Friday, he wants to keep his own feet in those shoes a good deal. “I will still be heavily involved in federal decisions,” he said. “I won’t be micromanaging but I will have a good idea of what is going on and I will be part of key decisions, particularly insofar as they affect South Australia.”

That might sound all right in theory. In practice it would be complicated, especially when there is complex legislation and difficult negotiations.

Even over the last year, there have been a few suggestions of differences between Xenophon and members of his team. The more time passes, the greater the chance of Xenophon losing touch with the federal nitty-gritty and the federal team resenting input from afar.

The leadership within parliament would have to go to one of the two other current senators: Stirling Griff (most likely) or Skye Kakoschke-Moore.

There is some uncertainty about whether Xenophon would remain overall leader of the party, as well as the state leader. His comment, quoted above, referring to “under my leadership”, suggests he would. And Griff says “we still consider him the leader of the federal party” as well as of the state party.

Immediate future arrangements will be discussed when the NXT meets on parliament’s resumption the week after next.

The ConversationThe longer-term questions will remain. Among them will be the name of the party for the next federal election, and whether Xenophon – even if he stays overlord of the federal party – can retain as much of a national profile when his focus becomes South Australian politics.

Michelle Grattan, Professorial Fellow, University of Canberra

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

COAG meeting on counter-terrorism was more about politics than practice



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The key messages from Thursday’s COAG meeting were about co-operation and a nationally consistent approach to counter-terrorism.
AAP/Lukas Coch

Keiran Hardy, Griffith University

Given the persistent and serious threat of terrorism, national discussions about the direction of Australia’s counter-terrorism strategy should be encouraged.

However, such discussions require robust follow-up – not merely announcements about “getting tough” on terrorism – if they are to improve responses to terrorism in practice.

As might be expected, the key messages from Thursday’s special Council of Australian Governments (COAG) meeting were about co-operation and a nationally consistent approach to counter-terrorism. The COAG discussion also focused on facial recognition software, pre-charge detention, and new criminal offences for terrorism.


Further reading: Leaders agree to hand over driver licence data as part of COAG counter-terror package


‘Interoperability’

Interoperability means different government agencies should co-operate effectively, and be willing to share information openly and efficiently. It’s a political buzzword that’s difficult to say and even harder to achieve in practice.

In the case of a terrorist attack, this means police and security agencies need to share intelligence, evidence and administrative data in real time, as events unfold. The coronial inquest into the Sydney siege revealed the operational problems created when police and security agencies fail to share information on an offender quickly and openly.

The benefits of improving information-sharing may be obvious, but the success of any changes to law or policy will depend heavily on buy-in from the agencies.

Complex privacy law requirements can make agencies reluctant to share personal information about an offender. This is exacerbated if they remain culturally resistant to sharing their information.

Facial recognition

COAG revealed there will be greater sharing of biometric data and facial recognition technology across state boundaries.

Agencies in all jurisdictions will have access to facial recognition software that can match CCTV footage with passports and other identity documents.

The full capability of this technology is not yet clear. However, it is already raising concerns about increased scrutiny of Australian travellers and the possibility of criminals hacking biometric databases.

Pre-charge detention

Pre-charge detention is the amount of time police can detain a person following their arrest and before they must be charged and brought before a court. During that time, the arrested person may be questioned and the police may collect additional evidence.

Currently, the maximum limit of pre-charge detention for terrorism offences differs across Australia. Under federal law, the maximum is eight days (including so-called “dead time”, which can be excluded for administrative purposes). In New South Wales, it’s 14 days, while in other states it’s seven days or less.

The federal government is proposing to raise the limit in all jurisdictions to 14 days.

Consistency in pre-charge detention for terrorism is welcome. There is no reason why NSW Police should be able to detain a terrorist offender for more than twice as long as police in other states. However, the government has not made a strong case to justify why the longest period of pre-charge detention should be applied across the board.

Prime Minister Malcolm Turnbull offered the recent Sydney terror raids as an example of why the changes are needed. That case involved a more rushed police investigation following a tip-off from an overseas intelligence service, as well as complex physical evidence including explosives and chemicals.

Even in that complex case, it seems that nothing close to a 14-day limit was required. One man was released without charge after three days; two more were charged with terrorism offences within five days, and the fourth man was charged with a non-terrorism offence after eight days.

The appropriate upper limit on pre-charge detention is unclear, but the risks of lengthy pre-charge detention are evident. In 2007, Mohamed Haneef was detained for 12 days for an alleged connection to an attempted attack on Glasgow International Airport. He was released without charge and later received an undisclosed sum as compensation for the bungled investigation.

In response to the Haneef affair, the Rudd government placed a seven-day limit on the amount of dead time that could be claimed by police. This was done to prevent these kinds of mishaps from happening again.

New offences

Two new criminal offences have also been proposed: one for possessing terrorist instructional materials, and another to strengthen offences for “hoax” attacks.

It is not clear why an offence for possessing instructional materials is needed, as multiple similar offences have existed since 2002. Under the Commonwealth Criminal Code, it is a serious offence to collect or make documents likely to facilitate terrorism, to possess any “thing” connected with preparation for terrorism, or to train with a terrorist organisation.

Following the post-9/11 anthrax scares in the US, offences for “hoax” terror attacks were also introduced in Australia. These laws make it an offence to phone in a fake bomb threat or post a substance through the mail, where doing so would induce a false belief of terrorism.

And, by virtue of Australia’s broad statutory definition of terrorism, all terrorism offences apply to the “threat” of an attack.

The ConversationThese proposed changes have more to do with “getting tough” on terrorism than with filling gaps in the criminal law. After seeing Turnbull flanked by special forces soldiers and now tactical response police, one wonders whom he will pose with next.

Keiran Hardy, Lecturer, School of Criminology and Criminal Justice and Member, Griffith Criminology Institute, Griffith University

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

The government’s new gas deal will ease the squeeze, but dodges the price issue



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The government has so far refrained from putting a legal limit on LNG leaving our shores.
Ken Hodges/Wikimedia Commons, CC BY

Samantha Hepburn, Deakin University

The deal signed this week by the federal government and the nation’s biggest three gas producers will ease Australia’s gas supply squeeze, but it will do nothing to address the current high prices.

Under the contract, Shell, Origin and Santos have agreed to supply more domestic gas to avert the predicted shortfall for 2018.

In so doing, the government seemingly sidestepped the need to trigger its own powers to forcibly restrict gas exports.

Sighs of relief all round, then. But here’s the thing: neither the new deal, nor the legislation that governs export controls, actually addresses the issue that is arguably most important to consumers – the high prices Australians are paying for their gas.


Read more: To avoid crisis, the gas market needs a steady steer, not an emergency swerve


Australia has vast gas resources, and yet somehow we find ourselves with rising prices and a forecast shortfall of up to one-sixth of demand in the east coast gas market in 2018.

This is partly understandable, given that rising global demand has fuelled a lucrative export market. The primary destination is Asia, which will assume more than 70% of global demand. In geographical terms this puts Australian exporters in a very strong position, and by 2019 Australia is forecast to supply 20% of the global market – up from 9% today.

However, the strong global demand for liquefied natural gas (LNG) does not in itself provide the full explanation for rising gas prices in Australia’s east coast gas market. This is caused by a weak regulatory environment.

Policy levers

The Australian Domestic Gas Security Mechanism, which took effect in July 2017, gives the federal resources minister the power to restrict exports of LNG in the event of a forecast shortfall for the domestic market in any given year.

This five-year provision was designed as a short-term measure to ensure domestic gas supply. If triggered, it would require LNG exporters either to limit their exports or to find new sources of gas to offset the impact on the domestic market.

To trigger the mechanism, the minister must follow three steps:

  1. formally declare that the forthcoming year has a domestic shortfall, by October 1 of the preceding year;

  2. consult relevant market bodies, government agencies, industry bodies and other stakeholders to determine their view on the existing and forecast market conditions; and

  3. make a determination by November 1 on whether to implement the measures.

Any export restriction implemented under the ADGSM would potentially apply to all LNG exports nationwide, including those from areas with no forecast gas shortage, such as Western Australia. The minister does have the ability to determine the type of export restriction that is imposed. An unlimited volume restriction does not impose a specific volumetric limitation and can be applied to LNG projects that are not connected to the market experiencing the shortfall. A limited volume restriction imposes specific limits on the amount of LNG that may be exported and may be applied to an LNG project that is connected to the market experiencing the shortfall.

Non-compliance with the export limits imposed on gas projects would have a range of potential consequences for gas companies. These include revocation of export licence, imposition of different conditions, or stricter transparency requirements.

The new deal

The agreement signed with the big three gas producers effectively relieves the government of the need to consider triggering the ADGSM. As such, 2018 has not been officially declared to be a domestic shortfall year.

But the agreement is not grounded upon any specific legislative provision. Therefore it is essentially only enforceable against the gas companies that are parties to it. And in accordance with the private terms and conditions that those companies agree to.

The broad agreement is that contractors will sell a minimum of 54 petajoules of gas into the east coast domestic market (the lower limit of the forecast shortfall) and keep more on standby in case the eventual shortfall turns out to be bigger.

But what about prices?

The deal contains no specific provision regarding domestic pricing. So, although there will be more gas in the domestic market, this does not necessarily mean that the current high prices will drop.

In the short term, the provision of additional supply may curtail dramatic increases in domestic gas prices. However, the gas deal does not address the core problem, which stems from our enormous commitment to LNG exports and the connection of domestic gas prices to the global energy market.

Indeed, the commitments are so great that many LNG operators have had to take conventional gas from South Australia and Victoria to fulfil their export contracts. This has put significant pressure on domestic prices.

The unequivocal truth is that gas prices were much cheaper before the LNG export boom. The only way to achieve some level of protection for domestic gas prices is to implement stronger regulatory controls on the export market. This should involve taking account of the public interest when assessing whether export restrictions should be imposed.

The ADGSM legislation does not incorporate any explicit public interest test, despite the fact that gas is a public resource in Australia and gas pricing is a strong public interest issue.

Compare that with the United States, where public interest is a key principle in assessing whether to approve any LNG exports to countries with no US free trade agreement (such as Japan). Public interest tests in the United States involve a careful determination of how exports will affect domestic supply and the potential impact that a strong export market will have upon domestic prices.


Read more: Want to boost the domestic gas industry? Put a price on carbon


The Australian government’s decision to broker a deal with gas suppliers, rather than extend the long arm of the law, means that regulators will need to keep a close eye on the gas companies to check that they are holding up their end of the bargain.

That job will fall to the Australian Competition and Consumer Commission (ACCC). ACCC chair Rod Simms this week warned gas suppliers to ensure that their “retail margins are appropriate”.

The ConversationIn the absence of any explicit rules compelling gas producers that signed the deal to provide clear and accurate information and adopt stronger transparency protocols, the ACCC may face a very onerous task.

Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University

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

When it comes to the NBN, we keep having the same conversations over and over



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Another day, another report. Will it change Australia’s NBN?
CommScope/Flickr, CC BY-NC-SA

David Glance, University of Western Australia

The Joint Standing Committee on the National Broadband Network (NBN) released its first report on Friday, just as most people on the east coast of Australia headed into a long weekend, complete with two sporting grand finals.

The release on a Friday afternoon, sometimes referred to by the media as the “Friday news dump”, is generally what governments do when they want the published report to gather dust.


Read More: The NBN needs subsidies if we all want to benefit from it


In fact, its hundreds of pages actually included two reports from the one committee. The dissenting report, supported by its Liberal Party members, including the committee’s chair Sussan Ley, contradict many of the conclusions of the first, which was backed by the Labor Party members and Australian Greens, among others.

One ironic benefit of the report is that whatever your political view, there will be something that you’re likely agree with. But is that the way to create good internet policy?

What did the report say?

The report is from the latest committee, formed in September 2016, to inquire and report on the rollout of the NBN. It replaced the Senate Select Committee on the NBN that operated between 2013 to early 2016.

The report makes 23 recommendations. These range from recommending that the NBN cost and plan for a switch for all remaining Fibre to the Node (FTTN) connections to use Fibre to the Curb (FTTC), through to recommending that the government measure and report on “digital inclusion”.

Many of these recommendations are dismissed or ignored in the Chair’s dissenting report.

As political and business commentator Alan Kohler summarised in The Australian:

Like so much of Australian public policy over the past 10 years, the NBN has been hopelessly politicised, so that anything that comes out of any politician’s mouth on the subject can be ignored as most likely unreliable twaddle.

The challenges of the process

Given the political nature of the process and the desired outcomes, in my view, there is a bias built into the process from the start.

This is both in how facts are interpreted and presented in the report, and how groups, companies and individuals with specific vested interests use committees as a means of stating their claims.

The report claims for example that FTTC is a “future-proofed technology” whereas FTTN is not, but little evidence is given to back up the claim.

It appears “future-proofing” is simply a term for the fact that FTTC would theoretically cost less to upgrade than FTTN, but complete data is not offered.

In another case, the report discusses complaints made to the Telecommunications Industry Ombudsman about connection delay issues, citing a “slight decrease” in the number of complaints relative to the number of activated premises.

The decrease is not entirely insignificant: for example, complaints made about 0.98% of total new connections in quarter three of 2015-16 dropped to 0.56% in quarter two of 2016-17.

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The rate of fault complaints about NBN services has also dropped slightly over time and is running at 0.15% of premises activated (2,460 complaints made out of 1,652,564 premises activated over time in quarter two of 2016-17).

Another key problem with committees of this sort is that during the time it takes to investigate, write and publish the report, events have overtaken the process.

The report recommends that the NBN cost a plan to substitute FTTC for FTTN. This has already happened after a fashion, with NBN Co presenting costing to the NBN Co board and to the government. The proposal was apparently rejected because it would have been too expensive and not kept NBN Co’s funding within the A$49 billion limit.

History repeating

Much of what is included in the report are issues that have been discussed by previous committees, but also more widely in the public sphere. We have seen the same topics, arguments, paucity of data and overreliance on anecdote time and again.

Given the government’s “Friday news dump”, a more general question to ask is whether making submissions to these committees is worth the time and effort?


Read More: Lack of internet affordability may worsen Australia’s digital divide: new report


I personally attended an expert session in Parliament held by the previous committee in early 2016. The same issues and questions were asked then and by and large the same types of responses were given. Nothing came of that and this report largely rehashes the same conversation.

As Alan Kohler remarked, public policy shaping the NBN has been marked by political motives and to a far lesser extent, economic or social ones. For that reason, data is not being given proper weight, and is often shaped to support a political perspective.

The ConversationGiven the situation, we are perhaps fortunate to have made the progress we have.

David Glance, Director of UWA Centre for Software Practice, University of Western Australia

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

Turnbull proposes tougher security measures


Michelle Grattan, University of Canberra

Malcolm Turnbull this week is pushing for a further toughening of national security laws, including to allow police to hold suspects for longer without charges.

Turnbull and state and territory leaders on Thursday will hold a special Council of Australian Governments (COAG) meeting on measures to counter terrorism.

The Commonwealth is proposing action on three fronts: ensuring nationally consistent pre-charge detention laws; new Commonwealth offences for people who possess “instructional” terrorist material; and strengthening laws against terrorism hoaxes.

On pre-charge detention, in New South Wales people can be held for 14 days but other states have a maximum of seven days or less.

South Australia only allows eight hours without charge. Western Australia allows six hours, before extensions of eight hours can be sought from a magistrate. Queensland allows eight hours and then magistrate approval for every eight hours after that.

The Australian Federal Police and state counterparts want longer questioning and detention time between a person being arrested and either charged or released.

The federal government is proposing to develop Commonwealth laws that can apply nationwide.

Previously, legal and constitutional issues have been a problem but the federal government believes legal concerns can be overcome, with additional safeguards.

The proposal would:

  • increase the initial investigation period from four to eight hours before a person had to be released or an extension of the detention period sought;

  • increase the maximum investigative detention time for Commonwealth terrorism offences to 14 days; and

  • remove some legal complexities, making the law less onerous for police as well as clearer.

The Commonwealth uses the example of the recent plot to blow up a plane in Sydney to show why pre-charge detention laws need to be consistent. Under NSW law, suspects could have been held for up to 14 days but elsewhere the maximum would have been seven.

The proposed new federal offence to criminalise the possession of instructional material of practical use for a terrorist act is designed to enable authorities to intervene “at the lower end of the risk spectrum”.

The government argues this would be a strong deterrent – and uses the comparison of the possession of child pornography, an offence even if a possessor doesn’t intend themselves to abuse a child.

Law enforcement agencies are concerned at the amount of extremist material available online which doesn’t just radicalise people but sometimes gives specific instructions about how to commit a terrorist act.

The government also wants a nationally consistent regime against hoaxes, replacing the present various state and territory offences. It says a new federal offence would keep pace with the “evolving methodology of terrorists”, including false claims about knife and vehicle attacks, as well as traditional hoaxes about explosives and the like.

It would also make for consistent jail terms across the country.

Turnbull said Thursday’s COAG meeting was about staying ahead of the terrorist threat.

The Coalition government has enacted nine tranches of national security legislation; 74 people have been charged as a result of 31 counter-terrorism operations in the last three years.

Since the threat level was raised in September 2014, there have been five attacks and 13 major counter-terrorism disruption operations.

About 110 Australians are presently fighting or engaged with terrorist groups in Syria and Iraq.

Since 2012, about 220 Australians have travelled to Syria or Iraq to fight or support the fighting. At least 65 Australians, and possibly up to 83, have been killed. More than 30 people have come back to Australia after travelling to Syria/Iraq – most before the caliphate was declared.

About 220 people in Australia are being investigated for providing support to the Syrian/Iraq conflict, including through money and other help, or are wanting to travel.

The ConversationSome 220 passports have been cancelled or refused in relation to the conflict.

Michelle Grattan, Professorial Fellow, University of Canberra

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

How the government and One Nation may use media reforms to clip the ABC’s wings


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It would be easy to set up an inquiry into the ABC – with the findings already known.
Shutterstock

Denis Muller, University of Melbourne

Among the four concessions concerning the ABC that senator Pauline Hanson extracted from the federal government in exchange for her support of its recent media ownership law changes, one in particular has the potential to do real damage to the national broadcaster.

This is the promised inquiry into the ABC’s competitive neutrality.

It has been on the agenda of News Corp for years to have the ABC’s wings clipped, for the obvious reason that it sees the ABC as a commercial rival. If News Corp had its way, the ABC’s big strategic move into digital broadcasting more than a decade ago would have been cut off at the pass.

So Hanson, whether she knew it or not, has played into the hands of New Corp on this, and given the government a political opportunity to do yet one more favour for Rupert Murdoch.

Since the government does not need a vote in parliament to set up an inquiry like this, it is easy to see how it might unfold.

An eminently well-qualified chairman could easily be found. To pick a name at random: Maurice Newman, former chairman of the stock exchange, former chairman of the ABC and now public ideologue opposed to public-sector broadcasting. He wrote a polemic in The Australian in April asserting that the ABC and SBS no longer served a public purpose.

The government could effortlessly craft terms of reference consistent with that axiom of politics – you never hold an inquiry without knowing the outcome.

A high-profile firm of economic consultants could be engaged to conduct an analysis of the impact of the ABC’s activities on private-sector media.

Using suitable assumptions, a selection of data and a fitting framework of economic theory, it might easily find that the ABC, despite manifold inefficiencies, was indeed using its public funding in an anti-competitive way to crowd out the private sector.

Recommendations would naturally ensue that the range of ABC activities had strayed well beyond the confines imagined by its founding fathers in the early 1930s. It would therefore follow that its funding should be cut in order to see it focus on outputs that no commercial broadcaster would touch with a barge pole.

Perfectly respectable.

Of the other three concessions to Hanson, the one likely to do the most mischief is the one requiring the ABC to publicly disclose the salaries and conditions of all staff whose packages amount to more than A$200,000 a year.

While in principle it seems reasonable that the salaries of people on the public payroll should be public, in fact the pay of individual public servants is generally a private matter.

This is the case not only because a person’s financial affairs are inherently private, but because it is a disincentive for good people to join the public sector if their private affairs are going to be trawled over in public for political purposes.

It has already happened with ABC salaries when they were inadvertently released under freedom-of-information laws a couple of years ago.

The combination of fame and their type of work magnifies the privacy issue for high-profile ABC journalists and presenters. No-one cares what some obscure under-secretary in the Department of Veterans Affairs gets paid, but politicians like Hanson salivate over the pay of people like Leigh Sales and Barrie Cassidy.

The remaining two concessions are not likely to have much impact on the ABC.

The one that got all the attention at the start was the insertion of “fair” and “balanced” into the ABC’s charter.

This is a sideshow. The ABC’s charter is contained within section six of the ABC Act, so amending it will require a parliamentary vote. Senator Nick Xenophon has said his team will not support it, and since his team’s support is likely to be necessary, it looks like an empty gesture by the government.

In any case, the requirements for fairness and balance are already built into the ABC’s editorial policies, which are binding on ABC journalists, so the practical effect would be nonexistent.

However, a parliamentary debate on the ABC’s impartiality would keep this matter bubbling along in the public mind and furnish an opportunity for reactionary politicians to further ventilate their suspicions.

Finally, there was a concession concerning provision of broadcasting services to regional areas. The ABC has already announced a A$50 million package
to enhance regional services. And anyway, this is a level of operational detail that generally lies beyond the reach of politicians.

A bit of cosmetic arm-wrestling between Communications Minister Mitch Fifield and the chair of the ABC, perhaps some pointed questions at Senate estimates, and a tweak of the ABC’s budget will probably satisfy this concession.

The ConversationTaken together, then, three of these concessions have considerable nuisance value. But the fourth contains the seeds of a serious challenge to the ABC’s future.

Denis Muller, Senior Research Fellow in the Centre for Advancing Journalism, University of Melbourne

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