Australian media regulators face the challenge of dealing with global platforms Google and Facebook



‘Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.’
Shutterstock/Roman Pyshchyk

Terry Flew, Queensland University of Technology

With concerns growing worldwide about the economic power of digital technology giants such as Google and Facebook, there was plenty of interest internationally in Australia’s Digital Platforms Inquiry.

The Australian Competition and Consumer Commission (ACCC) inquiry was seen as undertaking a forensic account of market dominance by digital platforms, and the implications for Australian media and the rights of citizens around privacy and data protection.

The inquiry’s final report, released last month, has been analysed from perspectives such as competition policy, consumer protection and the future of journalism.




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But the major limitation facing the ACCC, and the Australian government, in developing new regulations for digital platforms is jurisdictional authority – given these companies are headquartered in the United States.

More ‘platform neutral’ approach

Among the ACCC’s 23 recommendations is a proposal to reform media regulations to move from the current platform-specific approaches (different rules for television, radio, and print media) towards a “platform-neutral” approach.

This will ensure comparable functions are effectively and consistently regulated:

Digitalisation and the increase in online sources of news and media content highlight inconsistencies in the current sector-specific approach to media regulation in Australia […]

Digital platforms increasingly perform similar functions to media businesses, such as selecting and curating content, evaluating content, and ranking and arranging content online. Despite this, virtually no media regulation applies to digital platforms.

The ACCC’s recommendations to harmonise regulations across different types of media draw on major Australian public enquiries from the early 2010s, such as the Convergence Review and the Australian Law Reform Commission’s review of the national media classification system. These reports identified the inappropriateness of “silo-ised” media laws and regulations in an age of digital convergence.




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The ACCC also questions the continued appropriateness of the distinction between platforms and publishers in an age where the largest digital platforms are not simply the carriers of messages circulated among their users.

The report observes that such platforms are increasingly at the centre of digital content distribution. Online consumers increasingly access social news through platforms such as Facebook and Google, as well as video content through YouTube.

The advertising dollar

While the ACCC inquiry focused on the impact of digital platforms on news, we can see how they have transformed the media landscape more generally, and where issues of the wider public good arise.

Their dominance over advertising has undercut traditional media business models. Online now accounts for about 50% of total advertising spend, and the ACCC estimates that 71 cents of every dollar spent on digital advertising in Australia goes to Google or Facebook.

All media are now facing the implications of a more general migration to online advertising, as platforms can better micro-target consumers rather than relying on the broad brush approach of mass media advertising.

The larger issue facing potential competitors to the digital giants is the accumulation of user data. This includes the lack of transparency around algorithmic sorting of such data, and the capacity to use machine learning to apply powerful predictive analytics to “big data”.

In line with recent critiques of platform capitalism, the ACCC is concerned about the lack of information consumers have about what data the platforms hold and how it’s being used.

It’s also concerned the “winner-takes-most” nature of digital markets creates a long term structural crisis for media businesses, with particularly severe implications for public interest journalism.

Digital diversity

Digital platform companies do not sit easily within a recognisable industry sector as they branch across information technology, content media, and advertising.

They’re also not alike. While all rely on the capacity to generate and make use of consumer data, their business models differ significantly.

The ACCC chose to focus only on Google and Facebook, but they are quite different entities.

Google dominates search advertising and is largely a content aggregator, whereas Facebook for the most part provides display advertising that accompanies user-generated social media. This presents its own challenges in crafting a regulatory response to the rise of these digital platform giants.

A threshold issue is whether digital platforms should be understood to be media businesses, or businesses in a more generic sense.

Communications policy in the 1990s and 2000s commonly differentiated digital platforms as carriers. This indemnified them from laws and regulations relating to content that users uploaded onto their sites.

But this carriage/content distinction has always coexisted with active measures on the part of the platform companies to manage content that is hosted on their sites. Controversies around content moderation, and the legal and ethical obligations of platform providers, have accelerated greatly in recent years.

To the degree that companies such as Google and Facebook increasingly operate as media businesses, this would bring aspects of their activities within the regulatory purview of the Australian Communication and Media Authority (ACMA).

The ACCC recommended ACMA should be responsible for brokering a code of conduct governing commercial relationships between the digital platforms and news providers.




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This would give it powers related to copyright enforcement, allow it to monitor how platforms are acting to guarantee the trustworthiness and reliability of news content, and minimise the circulation of “fake news” on their sites.

Overseas, but over here

Companies such as Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.

The capacity to address competition and market dominance issues is limited by the fact real action could only meaningfully occur in their home market of the US.

Australian regulators are going to need to work closely with their counterparts in other countries and regions: the US and the European Union are the two most significant in this regard.The Conversation

Terry Flew, Professor of Communication and Creative Industries, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

High Court challenge to Treasurer Josh Frydenberg under section 44


Michelle Grattan, University of Canberra

The citizenship provision of the Constitution’s section 44 has raised its head again, with the eligibility of Treasurer Josh Frydenberg being challenged by an elector in his Kooyong seat.

Michaal Staindl has filed a petition with the High Court, which sits as the Court of Disputed Returns, alleging Frydenberg is ineligible “because he is a citizen of the Republic of Hungary”.

The petition says

The respondent’s mother arrived in Australia in 1950 in possession of a valid passport, inferred to be a valid Hungarian passport. This indicates that she continued to be a citizen of Hungary after 1948.

Pursuant to the law of Hungary, all children born to the respondent’s mother are a citizen of Hungary from the time of their birth and in the premise, the respondent is a citizen of Hungary

Staindl told Guardian Australia he was pursuing the action against Frydenberg, whom he knew, because “he’s consistently betrayed me, the electorate and the country on climate change”.

The Guardian reported that Staindl “said if Frydenberg shows evidence he is not Hungarian he could drop the case”; otherwise, he said, he would “see it through”.

Under Section 44, a person cannot sit in the 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”.

In his “statement of member’s qualifications relating to section 44 and 45 of the constitution”, posted on Wednesday, Frydenberg records that his mother – who arrived in Australia as a refugee – was a Hungarian citizen between 1943 and 1948.

Frydenberg said “I have clear legal advice that I do not hold citizenship of another country.”

Section 44, which has several prohibitions, cut a swathe through the last parliament, overwhelmingly on citizenship grounds, hitting Coalition, Labor, and crossbench parliamentarians and triggering multiple byelections.

Although Frydenberg’s situation was canvassed during the previous term Labor backed off, given his mother had escaped the Holocaust.

Frydenberg, in comments in the last term, said his mother had arrived stateless. “It is absolutely absurd to think that I could involuntarily acquire Hungarian citizenship by rule of a country that rendered my mother stateless,” he said then.

Separately, Frydenberg’s eligibility is being challenged under the Electoral Act over Liberal party Chinese-language signs. This challenge is being brought by Oliver Yates, who ran as an independent against Frydenberg. It is claimed the signs were likely to have misled voters into thinking that to cast a valid vote they had to put the figure 1 beside the Liberal candidate.

A similar challenge over Chinese-language signs has been brought by a Chisholm voter against the new Liberal MP for Chisholm, Gladys Liu.

The ALP is not involved in the challenges.

The ALP’s acting national secretary Paul Erickson said in a statement that Labor was “disappointed by the tactics employed by the Liberal Party at the election, which went well beyond the accepted bounds of a vigorously contested campaign – especially in the divisions of Chisholm and Kooyong.

“The Chinese-language signs used by the Liberal Party in those contests were clearly designed to look like official Australian Electoral Commission voting instructions using the AEC colours, for the clear purpose of misleading Mandarin and Cantonese-speaking voters into voting for the Liberal Party,” he said.

But while there was a strong case that the signs breached the Electoral Act Labor was not seeking to overturn the results in Chisholm and Kooyong, given the cost and time involved, Erickson said.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: what are the media companies’ challenges to the AFP raids about?


Rebecca Ananian-Welsh, The University of Queensland

In the first week of June, the AFP raided the home of News Corp journalist Annika Smethurst and the ABC’s Sydney headquarters.

The raids concerned stories published over a year earlier, based on documents leaked from the Department of Defence. This week, the ABC and News Corp launched separate legal challenges to those raids. As David Anderson explained, the ABC is challenging the warrant “on several technical grounds that underline the fundamental importance of investigative journalism and protection of confidential sources”.




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The ABC commenced proceedings in the federal court, whereas News Corp took its challenge directly to the High Court. Nonetheless, both cases will raise similar legal issues, with press freedom at the heart of each challenge.

Both the ABC and News Corp are arguing that the AFP warrants infringe the “implied freedom of political communication” protected by the Australian Constitution. This challenge sets national security and press freedom against one another and could lead to groundbreaking developments in constitutional law.

But a closer look reveals the thinness of the implied freedom as a true protection for press freedom and the need for clearer protections.

The Australian First Amendment? The implied freedom of political communication

The Australian Constitution contains very few rights. None resemble the US Constitution’s First Amendment which protects, among other things, free speech and a free press.

In 1992, the High Court read between the lines of our Constitution to hold that it protects the free flow of political communication. This implication was justified as necessary to protect our system of representative and responsible government and, specifically, to enable voters to make an informed choice at elections.

The implied freedom is not a right to free speech. First, it only protects political communication, not speech generally. Secondly, it is not a personal right that may be wielded against the government. Instead, the implied freedom is a limit on legislative power, and not an absolute one at that. This means the Constitution only prohibits Commonwealth, state and territory governments from passing legislation that unjustifiably limits political communication.

In recent High Court decisions, safe access zones around abortion clinics were upheld as justified restrictions on political communication, and in NSW, caps on third party political donations were struck down as unjustified restrictions.

The courts will consider three questions when they determine whether the law that supported the AFP raids violates the implied freedom. It is far from clear whether the media organisations’ challenges will pass this three-stage test.

Step 1: A burden on political communication?

The first question is whether the law burdens (restricts) political communication. In this case, the burden is unclear. The warrants were issued to further investigations into government leaks and the handling of classified information, but the leaks had happened and the stories published over a year earlier. In this sense, the political communication had run its course unhindered. If no burden on political communication is established then the challenge will fail.

On the other hand, the execution of the warrants is almost certain to stifle public interest reporting. The raids may deter journalists from investigating and publishing stories based on classified materials, even where they reveal corruption or misconduct.

Even more seriously, the raids will deter potential whistleblowers from speaking out. This impact may be too vague for the High Court to engage with – after all, how could a lawyer present evidence of a general chilling effect? Nonetheless, it is a serious and severe consequence of police crackdowns on media, with a direct impact on each voters’ capacity to make a true and informed choice at the ballot box.

Step 2: A legitimate purpose?

If there is a burden on political communication, the second stage of the test will ask whether the burden is for legitimate purpose – that is, a purpose compatible with our system of government.

While some may criticise the AFP raids as reflecting an illegitimate purpose of targeting journalism critical of the government, the warrants also undoubtedly had a legitimate aim: the maintenance of national security by ensuring the integrity of government secrets.

Step 3: A proportionate measure?

This third stage of the test is the trickiest. It asks whether the restriction on political communication is justified and proportionate in light of its legitimate purpose. Is it tailored to that purpose? Were there alternative, less-restrictive measures that could have been adopted? In this kind of balancing exercise, reasonable minds can, and will, differ.

National security is a serious concern that goes to the very existence of the nation. It is universally accepted that some rights and freedoms must bend to the security of the nation.

Press freedom, on the other hand, including source confidentiality and the capacity to report on government misconduct, is critical to the rule of law and our democratic system. The courts will be faced with the question of when national security justifies the erosion of press freedom, and when it does not. This is no easy or predictable task.

In the context of the AFP raids, the present threat to national security posed by the published articles appears to be weak. On one view, the burden on political communication was severe and arguably unjustified, provided the court accepts the chilling effect that the raids will have on journalists and whistleblowers.

Alternatively, the limit on communication may be nonexistent, as the raids didn’t prevent the stories from being published. There are likely to be further interests and facts that weigh into this balance.

On available information, it is only clear the ABC and News Corp will face a number of complex and unpredictable hurdles in convincing a court that the warrant powers violate the Constitution.

The protection of press freedom

The implied freedom of political communication serves an important purpose in protecting political speech from unjustified infringement. Its capacity to protect press freedom remains untested before the High Court, and this challenge presents a golden opportunity for the court to recognise the place of the fourth estate within our constitutional framework.

But the implied freedom is not a right to free speech or a free press. It hinges on the concept of “justification”, and when national security is placed on the scales it is difficult to find a counterweight to meet it. Hence national security is regularly invoked to justify infringements of our basic rights and freedoms, and it is difficult to know how and when these infringements are unnecessary.




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Robust protection of press freedom in Australia is unlikely to be achieved through the interpretation of a Constitution that makes no reference to the fourth estate, freedom of speech, the rule of law, or other basic rights or freedoms. Clearer protections are needed. This could take the form of legislative recognition of press freedom.

Charters of Rights such as those in Victoria, the ACT and Queensland also operate to ensure basic freedoms are taken into account, not just in court but in parliament and across all public sector decision-making. This approach has clear advantages over the technical and unpredictable application of implied constitutional freedoms months after the event.

In the absence of these kinds of reforms at a national level, we wait to see if the High Court will once again read between the lines of our Constitution and recognise a central place for the free press in Australia.The Conversation

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How to challenge racism by listening to those who experience it


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People across the world paid their respects to those who lost their lives during the terror attack in Christchurch.
Andy Rain/EPA, CC BY-SA

Mohan Jyoti Dutta, Massey University

The terrorist attack in Christchurch was an expression of racist hatred that is being disseminated systematically across the globe by some media, think tanks and grassroots groups.

To actively challenge and dismantle racism, we need to create communication platforms for people who experience it. At the Center for Culture-centered Approach to Research and Evaluation (CARE), we have developed an activist-in-residence programme as a framework for moving voices from the margins to the centre.

This month, Māori activist Tame Iti completed his residency.




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Global network of racist Islamophobia

The Christchurch terror attack is a manifestation of Islamophobia, cultivated by images, disinformation and false narratives that are anchored in the portrayal of a Muslim threat to civilisations, especially western civilisations.

An entire industry has built up to manufacture and amplify hate. It is funded by a small network of foundations, political interests and private donors. They profit from the circulation of hate and propel Islamophobia for political and economic gains.

Hate generates ratings. It captures viewers, justifies neocolonial policies and spawns an entire industry of hate products such as video games and music videos. Individual acts of racist violence have to be seen within this wider context.

Manufacturing a threat

The attack is part of a global network of racist terror that is often legitimised by the structures of the state. We need to examine the close relationship between donors and political parties and grassroots right-wing groups that circulate hatred toward Muslims.

Media images are rife with racist narratives of the Muslim threat, often juxtaposed with narratives of threats posed by migrants and refugees.

The alleged perpetrator of the Christchurch attack referred to US President Donald Trump as an inspiration for the fight to protect white supremacy. This offers an insight into the global reach of the Islamophobia industry. In several speeches on his campaign trail, Trump amplified the trope of Sharia law, stating that Muslims would have to denounce their commitment to Sharia before being granted immigration visas to the US.




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Similarly, politicians of various right-wing parties across western democracies have routinely circulated the image of the Muslim migrant threatening western civilisation. In the US, groups such as ACT for America, led by Brigette Gabriel with over 750,000 members, manufacture the threat of the Muslim “other” to organise communities around hatred of Islam. The group positions itself as a national security organisation, drawing up accounts of unwed Muslim migrant and refugee men who threaten white purity and exaggerating links between the influx of Muslim refugees and the threat of rape. Similarly, the image of the Muslim terrorist is often deployed as a heuristic for cultivating the fear of Muslims.

The effects of hatred

The effects of racism are documented in a substantive body of research. A study comparing reliance on media versus personal contact for information about Muslims found that media spread stereotypes, negative emotions and support for harmful policies. The opposite was found for those who relied on personal contact to learn about Muslims.

The study also observed that perceptions of Muslims as aggressive were associated with support for public policies harming Muslims, including military action in Muslim countries and restricting civil liberties of Muslims. Similar studies have observed that white Americans who rely on media as the primary source of information about African Americans – as opposed to personal contact – are more likely to express stereotypical beliefs and hold prejudicial attitudes.

In our own ethnographic work with African Americans in Gary, Indiana, we have documented the effects of racist attitudes and behaviours on the well-being of communities of colour. Racist discourse not only creates continued stress for people of colour, but has a direct impact through threats of violence. The colonial context of New Zealand is embedded in racist ideology that has an impact on the health and well-being of Māori.

Images of the Muslim “other” help sell entertainment programmes and video games, political campaigns cultivating the narrative of “white genocide” and weapons and new technologies sold by the arms industry.

Transforming Islamophobia through voice

Our research suggests that giving voice to people who experience racism forms the basis for a transformation of racist and colonialist structures. A commitment to challenging the industry of hatred targeting Muslims requires regulation and democratic processes. Everyday forms of normalised Islamophobia need to be challenged as much as extremist articulations of “white genocide”.

Acknowledging racism is the first step toward countering hate. New Zealand’s Prime Minister Jacinda Ardern responded to the attacks by saying “this is not us”. But we can only have a conversation about racism if we acknowledge the white privilege that enables and upholds it.

We need to create opportunities for face-to-face interactions with Muslims in societies that often normalise racism. This means listening to voices that express the uncomfortable experiences of racism.

Recognising the links between racism toward Muslims, immigrants and indigenous peoples is the first step toward dismantling it and beginning a process of decolonising anti-racist interventions.The Conversation

Mohan Jyoti Dutta, Dean’s Chair Professor, Massey University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Everyday racism fuels prejudice and hate. But we can challenge it



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Establishing relationships with people who are different from ourselves is one of the best approaches to reducing prejudice.
(AAP/Jono Searle, CC BY-ND

Kumar Yogeeswaran; Chris G. Sibley, University of Auckland; Danny Osborne, University of Auckland; Marc Wilson, Victoria University of Wellington, and Mike Grimshaw

In the aftermath of the Christchurch terror attacks a month ago, New Zealanders are grappling with difficult, albeit necessary, questions about discrimination and casual racism.

The response to the horrific attack has been heartwarming. Tens of thousands of people from different backgrounds offered support to the Muslim community and paid their respects to those senselessly killed and wounded. The response of Prime Minister Jacinda Ardern has been similarly refreshing, and has become a global talking point. This gives us hope for a better future.

But lurking behind news articles and commentary proclaiming that this is “not us”, debate is growing about what this atrocity also tells us that we have been reticent to acknowledge.




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Everyday racism links to extremism

In some ways, both of these narratives ring true. On the one hand, we have bought into New Zealand’s high global ranking for tolerance and inclusion. On the other hand, New Zealand’s Human Rights Commission (HRC) and those of us who research prejudice and bigotry routinely find evidence for everyday experiences of casual racism. These experiences give extremism the space it needs to breathe.

One in three of the complaints received by the HRC in New Zealand is about racial discrimination. In 2017, the commission launched a Give Nothing to Racism campaign fronted by acclaimed film director Taika Waititi.

The New Zealand Human Rights Commission launched a campaign in 2017 to highlight everyday racism.

Everyday, or “casual” racism and bigotry can appear relatively subtle or blatant. It may include comments such as complimenting someone who doesn’t fit the dominant group for being “well-spoken”, calling someone a “good” Muslim/Māori/Asian, excusing race-based jokes or comparisons as “just joking”. These seemingly benign comments are often accompanied with more blatant experiences of ethnic slurs, being told to go back to one’s country, or managers admitting they do not hire people with “foreign” sounding names (a violation of New Zealand law).

Compounded with such day-to-day experiences is research spanning decades and using a variety of tools (including neuroscience methods, reaction-time measures, and behavioural measures) to show bigotry lies on a continuum from blatant to subtle.

It’s worth mentioning, even subtle biases contribute to negative outcomes for minority groups’ health, well-being and participation in wider society. And even subconsciously perceiving minorities as “less civilised” can fuel intergroup conflict and violence towards minority groups, as shown by decades of research

While terrorism may represent the actions by a small number of extremists, they are fuelled by social norms that allow these ideologies to take root and propagate. As acclaimed French theorist Jean Baudrillard observed in The Spirit of Terrorism:

terrorism merely crystallizes all the ingredients in suspension.

Social norms shape attitudes

This does not imply that communities themselves are responsible for acts of terrorism, but rather that terrorism reflects what circulates in geopolitics, national politics, normative beliefs of those around us, the media and the influence of other ideological and social forces. Global context is, of course, important, but New Zealand now needs to reflect on how social norms within our own community can inadvertently promote hate and prejudice.

In Christchurch, and New Zealand more generally, extremist groups have been omnipresent for decades. Just last year, there was a white supremacist march down a main street in Christchurch that received numerous car horn toots of support. Students in Auckland have reported an increase in extremist group messaging on campus, even after the disbanding of a controversial European student association.




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More broadly, data from the New Zealand Attitudes and Values Survey (NZAVS) show that 28% of New Zealanders are willing to express negative feelings toward Muslims. Fortunately, this is where all of us may be able to contribute to reinforcing the inclusive and tolerant society we tout in international rankings.

Where to from here

Well-intentioned and fair-minded people are often unaware of everyday experiences of members of minority groups. They often dismiss them as unrepresentative because the majority has a psychological investment in believing it “doesn’t happen here”. But such experiences do happen here as empirical research consistently finds, and these experiences cannot be undone simply through a similar number of positive experiences. People have a “negativity bias”, which means that negative events are weighed more heavily than positive ones. And if we have limited opportunities to forge meaningful close connections with people from other groups, then all it takes is a handful of negative experiences to wash away the benefits of other positive interactions and create distrust and social distancing between groups. Research shows although positive experiences are more common, negative experiences influence our attitudes more strongly.

Even as we work in increasingly diverse workplaces, our social circles tend to be fairly homogenous. Data from the NZAVS show that as recently as 2017, 64% of White New Zealanders report that they did not spend any time in the last week socialising with someone Māori. Some 83% say the same about socialising with someone Pasifika, and 77% report spending no time with someone Asian, suggesting that for many of us, our social networks are largely homogenous.

While this is similar to patterns elsewhere in the world, these homogenous networks create psychological distance between “us” and “them”. This also insulates us from hearing differing perspectives because minorities often fear that they will be seen as complainers if they share negative experiences in casual settings.

Instead, establishing relationships with people who are different from ourselves promotes positive intergroup contact, which is one of the most well-established approaches to reducing prejudice. Similarly, promoting social environments that encourage dialogue and cooperation, establishing common goals and providing opportunities for multicultural experiences offer some starting points for how to move forward.

At a time when the UN estimates more than 250 million people live outside of their country of birth, cultural diversity is an inevitable reality. It means we must learn to live and work together, and at the very least tolerate our differences. If each of us works to remove everyday bigotry within our immediate environment, we make it that much harder for extremist ideologies to take hold.The Conversation

Kumar Yogeeswaran, Senior Lecturer in Social Psychology; Chris G. Sibley, Professor, University of Auckland; Danny Osborne, Associate Professor of Political Psychology, University of Auckland; Marc Wilson, Professor of Psychology, Victoria University of Wellington, and Mike Grimshaw, Associate Professor of Sociology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge


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Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison unveiling tough new proposals to strip extremists of their Australian citizenship.
Joel Carrett/AAP

Sangeetha Pillai, UNSW

This week, Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton announced the federal government’s intention to introduce changes to Australia’s citizenship-stripping laws. The proposed changes would likely make Australia’s regime for citizenship-stripping the most expansive in the world. I’ll outline how the proposal would change the current law, and analyse its key elements.

What are Australia’s current citizenship-stripping laws?

In 2015, Australia introduced one of the most expansive regimes anywhere for citizenship deprivation on national security grounds. Under the current law, people can lose Australian citizenship against their will in two key ways:

  • Conduct-based citizenship deprivation: In certain circumstances, a citizen outside Australia can lose citizenship where the person has engaged in activities defined by reference to national security offences. A person does not need to be convicted of an offence to lose citizenship in this manner.

  • Conviction-based citizenship deprivation: The Minister for Home Affairs also has the power to revoke a person’s Australian citizenship where the person has been convicted of particular national security offences, and sentenced to at least six years’
    imprisonment. This is generally the only way in which people within Australia can be stripped of Australian citizenship against their will.




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Currently, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. This means that, at present, Australian law does not allow a person to be deprived of Australian citizenship if this would render them stateless.

Dutton has said that the existing citizenship-stripping laws have been used to deprive nine people of their Australian citizenship. Very little information on the circumstances of these deprivations is available. However, it is clear that at least six of these instances involved citizens outside Australia who lost their citizenship on the basis of conduct committed overseas. There has been no reported instance of a person within Australia being deprived of Australian citizenship, or of the conviction-based ground for citizenship deprivation having been used.

What changes would the proposed laws introduce?

The government’s new proposal would make it easier for people to be stripped of their Australian citizenship in two ways.

Changes to the dual citizenship requirement

If the proposed changes become law, it will no longer be necessary for a person to definitively hold dual citizenship before losing Australian citizenship. A joint media release from the offices of Morrison and Dutton states:

The Government will…change the threshold for determining dual citizenship. This change aims to improve the minister’s scope to determine a person’s foreign citizenship status.

A bill has yet to go before parliament, and it is not clear from this statement exactly what the government envisages. One possibility is the legislation will give the minister the power to decide whether or not a person is a foreign citizen. This is likely to raise constitutional difficulties. As the High Court has made clear on many occasions, whether a person is a foreign citizen is a question determined by the law of the foreign country concerned.

Another possibility is that the legislation will allow a person to be stripped of Australian citizenship where the minister thinks it is reasonably likely, but not certain, the person has dual citizenship. As the recent referrals of multiple federal parliamentarians to the High Court over potential foreign citizenship illustrate, it can often be difficult to conclusively determine when a person has foreign citizenship. However, many people – including those born in Australia to Australian parents – hold dual citizenship as a result of a familial connection to a foreign country.

A change of this nature could also raise constitutional problems. The High Court has not yet determined the extent of the Commonwealth’s power to deprive a person of Australian citizenship. There is a plausible argument that certain citizens, especially those who hold only Australian citizenship or who have no substantive connection to a foreign country, are part of the Australian constitutional community, and are protected against citizenship deprivation.




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On a practical level, enabling the minister to revoke a person’s Australian citizenship without it being clear the person has citizenship in a foreign country creates a very real risk of rendering the person stateless. This would place Australia in violation of its obligations under Article 8 of the 1961 Convention on the Reduction of Statelessness, which prevents signatory countries from depriving people of their nationality if it would render them stateless.

Australia has signed up to an international agreement not to render people stateless.
Shutterstock

Where a person inside Australia is deprived of Australian citizenship they become vulnerable to removal from Australia, and immigration detention until removal is possible. Where it is not clear that the person has citizenship in a foreign country, there is a likelihood of such detention being lengthy, or even indefinite.

Changes to the minimum sentence for conviction-based deprivation

The government’s media release also says:

The proposed changes would enable the minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.

Currently, the minister has power to revoke a person’s citizenship only on conviction-based grounds where a person is convicted of a select list of national security offences. It is not clear whether the government intends to retain or expand this select list of offences.

An anti-terrorism exercise at Cologne Bonn airport in Germany on November 20.
Marius Becker/dpa

Either way, the proposal is concerning. In 2015, before the current citizenship revocation laws were introduced, the Abbott government attempted to attach citizenship revocation to a much wider range of national security offences, with no requirement for a minimum sentence. A number of experts advised that this ran a risk of falling foul of the Constitution.

The more limited current legislation was ultimately arrived at following an inquiry by the Parliamentary Joint Committee on Intelligence and Security. It found that restricting the list of offences and requiring a minimum six year sentence was necessary to “appropriately target the most serious conduct that is closely linked to a terrorist threat”. Since 2015, the national threat level has not changed.

In this context, the government should clearly explain why removing the six year sentence threshold for conviction-based citizenship deprivation is necessary and proportionate. Given that the conviction-based citizenship-deprivation powers have not been used since their introduction, the need for a clear justification is particularly strong. The government’s media release states:

We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.

As the Law Council has stated, this justification is not nearly strong enough.The Conversation

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: A shocker performance, even by coup standards



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Scott Morrison is sworn in as the 30th prime minister of Australia by Governor-General Sir Peter Cosgrove.
AAP/Lukas Coch

Michelle Grattan, University of Canberra

When they turn nasty, politicians can be an extraordinarily ugly lot. This week, the Liberals looked hideous – feral, self-indulgent, thuggish and contemptuous of an electorate that would like to be able to have MPs respect its choice of the country’s prime minister.

No wonder ordinary people caught by the cameras in the vox pops were disgusted. This was a shocker performance, even by coup standards.

As Malcolm Turnbull said, an “insurgency” by the conservatives brought him down. But, in a sort of perverse justice, the insurgents were punished. Their reprehensible behaviour blasted out the leader they hated but failed to deliver them the prize they desired – installing their own man in the Lodge.




Read more:
How the hard right terminated Turnbull, only to see Scott Morrison become PM


Turnbull, by delaying the ballot, and getting the Solicitor-General to give an opinion on a question mark over Dutton’s eligibility to sit in parliament, helped to thwart them.

Dutton thought his prospects better than they were; Turnbull judged his own prospects to be worse than the reality.

The spill motion was carried 45-40, a tiny margin. In other words, 40 people wanted to keep Turnbull. Yet three cabinet ministers – Mathias Cormann, Mitch Fifield and Michaelia Cash – had previously insisted to Turnbull that he had lost the party room’s support and then resigned, ensuring his political death.

No wonder that after the spill numbers were given to the party room, Turnbull said “what a farce”.

In choosing Scott Morrison, the Liberals went for the safest option among the three candidates on offer. Dutton was seen as too risky and hardline; Julie Bishop started too far behind.

But while Morrison was the best of the trio, his elevation just further emphasised the bizarre nature of it all.

There is no compelling evidence to suggest Morrison will be much more competitive than his predecessor at the election. With some voters – Liberals on the progressive side – he might be less attractive.

And what about the gnashing of teeth over Queensland? After Longman, the Dutton people insisted he was needed to hold up the vote, because Turnbull was so unpopular.

In the new order, Queensland remains unrepresented in the leader/deputy team. And if Morrison has an advantage over Turnbull there, it would be a matter of degree, hardly worth ripping apart the party.

One vulnerable Queensland seat is Dickson, held by Dutton on a 2% margin. His actions may – and should – cost him votes, although they won’t cost him a position on the frontbench. Morrison has flagged Dutton will be in his cabinet.

Josh Frydenberg is a good choice as deputy leader, a unifying rather than a divisive figure, who’s done some heroic work on the National Energy Guarantee, the fate of which is up in the air.

Frydenberg becomes the new treasurer. He’s diligent and competent, but it will be a steep learning curve, facing a savvy and experienced opponent in Chris Bowen.

As he crafts his ministry, Morrison has to balance the factions and wrangle with the Nationals, out to get the most they can after the turbulence. Nationals leader Michael McCormack has every incentive to fight hard – he’s seen by his critics as not standing up strongly enough to the Liberals.

On the policy front, Morrison has an immense vacuum on energy, a major issue for the public, at the cutting edge of the ideological divide, and the catalyst for this week’s calamity.

Is he going to keep or reshape the NEG? He wouldn’t be drawn at his news conference. He said he’d talk to his cabinet.

Will he be able to get any sort of sensible energy policy through the party room? And will he want to?

Will he pursue an energy policy that is relatively bipartisan, as business desperately wants, to get investment certainty, or will he decide to go down the route of maximising the differences with Labor, in the hope of an electoral advantage and under pressure from the ideologues?

The energy wars will continue, one way or another.

A changing of the guard, especially in circumstances like these, is always disruptive – the ripples are felt through the administrative structure of government. New ministers have to learn new jobs. Initiatives in the pipeline must be paused and reviewed. All that alone is advantageous to an opposition that is already well organised.

Not surprisingly, Morrison flagged he doesn’t want an early election. But given Turnbull says he will leave Parliament “before too long”, he seems likely to face a byelection in Wentworth. It’s on a whopping 17.7% margin, but Turnbull had a strong personal vote, and a big swing would be a setback for the new leader.

Tony Abbott’s sister Christine Forster is being encouraged to seek Liberal preselection. Just another twist in this saga replete with dark irony.




Read more:
Memo Scott Morrison: don’t chase the ‘base’


How the disappointed conservatives behave will determine what internal trouble Morrison faces. One thing seems clear: they won’t be satisfied unless the change of personnel produces changes in policy, notable on climate and immigration.

Abbott seems unlikely to go silent. He harbours a deep resentment towards Morrison, accusing him of disloyalty in the 2015 coup.

It will be fascinating to watch Morrison construct his post-Treasury, pre-election persona. There are multiple Morrisons. The aggressive, shouty, attack dog tearing at Labor. The lower-key, more compromising negotiator. The knock-about bloke, always talking about “the (Sutherland) Shire” and the Sharks.

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Then there is the Morrison who is ambitious to leave his mark as a reformer – who’d hoped to reshape the GST until Turnbull pulled the pin on him. Now he has his chance to set his own direction. But he will be buffeted by cross winds and has little time to plot his course.

Michelle Grattan, Professorial Fellow, University of Canberra

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

The economics of Australia’s too-common leadership spills


Brendan Markey-Towler, The University of Queensland

At the end of another week of chaos in Canberra, we’re all asking why this keeps happening. Why are our leaders playing politics instead of governing?

A somewhat esoteric sub-field of economics known as Public Choice Theory suggests it really does come down to two things. First, the technological advances that have given politicians feedback in real time. Second, Australia’s comparatively small parliament.

Politicians aren’t mad or bad, they have an incentive to do what is necessary to hold their seat in parliament. They have no incentive to govern except insofar as it helps them keep their seat.




Read more:
Moment after moment of madness: Liberals manage the ugliest, messiest leadership challenge in history


The trouble is, the vast volumes of data we generate create a never-ending tsunami of information. It’s not just traditional opinion polls such as Newspoll, but also Twitter and Facebook “trending” feeds and hashtags, Google search data, YouTube, endless online polls and petitions.

All of this changes the incentives politicians face almost in real time. Of course they’d be changing leader more often! And with a comparatively small parliament, it is comparatively easy to do just that.

The irony then is that for all we say we wish the politicians would respect our say and get on with governing, our revolving door prime ministers are the result of the politicians being too responsive to what we think, and our having too few of them.

The perverted incentives of spills

Public Choice Theory starts from the presumption politicians aren’t principled heroes or evil dictators in waiting. They’re just regular people like you and me. They face incentives to which they try to respond as rationally as they can.

Now it doesn’t really matter whether a politician has conviction, hunger for power or they’re simply a hack. They can’t do anything unless they win elections. Hence, as Anthony Downs realised in his seminal work on Public Choice Theory, they have an imperative incentive to do and say what they can to win elections.

What some might call slavish adherence to public opinion is actually, from the perspective of Public Choice Theory, perfectly reasonable behaviour. Politicians can’t do anything unless they can get the votes of the public first, so they need to know what to say and to do to get them.




Read more:
‘Balmain basket weavers’ strike again, tearing the Liberal Party apart


Our present trouble with “revolving door” prime ministers makes a lot of sense from this perspective.

In the internet age, politicians’ knowledge of what to do and what to say to get the votes and win the elections is changing almost in real time.

Release a National Energy Guarantee policy? You’ll find out within weeks what the public thinks about it. Make a statement about immigration? You’ll find out within hours how it’s playing with the kids on social media. You’ll find out day to day how your leader is performing relative to the other guy just by monitoring the news sites.

Now of course that’s not limited to Australia, and countries with similar systems haven’t had the same revolving door leadership as us.

What sets Australia apart is that our parliament is very small compared with other countries (because of an obscure part of the constitution known as the “nexus” provision). We have only 150 members of the lower house compared with, for instance, Canada (which has 338) and the UK (which has 650).

It’s therefore much easier in Australia to respond to changing incentives by building a faction in favour of changing the leader simply because there are fewer people to persuade.

Put that all together, and of course you’d have a revolving door prime minister! What else would you expect?

Can a stable majority exist?

So what’s to be done?

One possibility is to do as the ALP has done, and require a supermajority of the party room to spill the leadership. This (in theory) makes it much more difficult to change the leadership.

Another, probably unpleasant possibility, is to significantly increase the size of parliament. A larger parliament makes it much more difficult to build factions in favour of changing the leadership.

Another, more direct response is to simply break the cycle and for us to take responsibility for the state of our own democracy. That is, if we actually do care about stable government.




Read more:
Reporters or players? What is the media’s role in leadership struggles?


The politicians will always respond to their incentives. They’re people. It’s never going to change. So we need to stop changing the incentives they face in real time as much as we can.

You yourself can do something about that. Stop responding to pollsters. Stop “liking” and retweeting the political topics. Stop endlessly following the political clickbait. Ironically, stop paying attention to politics and get on with your life except where your civic duty absolutely demands it.

Public Choice Theory suggests our increasingly regular leadership spills are because politicians are, ironically, too responsive to what we think and there are too few of them. If we want stable government, we can tinker with party constitutions to disincentivise leadership spills: we can increase the size of parliament to make it harder to build factions for changing the leader.

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But the most direct way to achieve it is to stop telling them what we think incessantly, and deliver judgement only where it matters most – the ballot box.

Brendan Markey-Towler, Researcher, The University of Queensland

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

Moment after moment of madness: Liberals manage the ugliest, messiest leadership challenge in history



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Wes Mountain/The Conversation, CC BY-ND

Frank Bongiorno, Australian National University

Tolstoy’s famous remark in Anna Karenina may well apply to political parties: “Happy families are all alike; every unhappy family is unhappy in its own way.”

It certainly applies to spills. Each unhappy event is unique in its particular combination of ambition, rancour and absurdity. But the present debacle contains so many wheels within wheels that it is virtually impossible to imagine anyone being able to keep all of them in view at once.

Yesterday’s shutting down of the House of Representatives was one result. It is arguably the worst debauching of Australian parliamentary democracy since John Kerr refused to see the Speaker to receive the House’s no confidence motion in the Fraser Government on November 11, 1975.

The Liberal Party gained office, but would pay the price for its misdeeds. The Coalition’s decision to exploit its numbers yesterday to shut down the House because it had become an inconvenience is also likely to live on in infamy as the tawdry, desperate act of a failed government.




Read more:
‘Balmain basket weavers’ strike again, tearing the Liberal Party apart


The problem of the numbers in the House is an example one of the moving parts that have made this leadership contest the messiest in Australian history.

The Liberal Party has run the spill as if it were a political billionaire; in other words, as if it had a 30-seat majority in the House of Representatives. It doesn’t. It is already within a whisker of becoming a minority government, a prospect that is likely if Peter Dutton becomes prime minister and there is resulting movement from the government to the crossbenches. More than one National Party MP has already indicated they will, or might, go down this path.

The government prevented the referral of the matter of Dutton’s eligibility to sit in parliament under Section 44 of the Constitution by a single vote.

It won the subsequent division to adjourn the House by two votes. But as the government unravels, it is doubtful whether it can count on much of the crossbench in any vote on confidence and supply. And it will only take a couple of Coalition votes to peel away to bring down the government entirely. That, at least, would end our nightmare.

We have probably been closer, over the last 24 hours, to a government falling on the floor of the parliament than at any time since 1941, when two Independents combined with the Labor Party to put the Fadden government out of its – and Australia’s – misery.

Another of the moving parts of this leadership crisis was the subject of that first vote: the matter of whether Dutton should be disqualified on the grounds that his family trust has an interest in two childcare centres who benefit from millions of dollars in government subsidies. Like all of the Section 44 matters that have arisen over the last couple of years, it is impossible to predict which way it would go if the High Court deliberated on it.

But the fact the Liberal Party is seriously contemplating the elevation to prime minister of a parliamentarian over whom such a cloud exists is nothing short of a folly.

That the parliamentarian concerned is Peter Dutton is another of those wheels within wheels. Dutton is not an ordinary centre-right politician; not in the Australian political context, at any rate. The polls tell us that as preferred prime minister, he barely registers. He is in serious danger of defeat in his own marginal Queensland electorate.

Dutton was among the tiny number of MPs who thought it would be a beaut idea to boycott Kevin Rudd’s Apology to the Stolen Generations. He opposed same-sex marriage. And, in a country that, so far, has largely resisted the populist revolt that has afflicted so many other Western countries – a country where recognition of the benefits of immigration and the value of multiculturalism has been robust – he has recognised the political capital to be gained from tapping into the darker recesses of the Australian imaginary.

There is not a shred of evidence on the public record that a Dutton prime ministership would make the slightest difference to the slide in public opinion being suffered by the Coalition in Queensland, as reflected in the LNP’s ghastly result in the Longman byelection.

Rather, this is one for what the Americans call the “base” – the bloc of right-wing opinion you’ll find well-represented in many Liberal Party branches – the kind of opinion that passes resolutions calling for the privatisation of the ABC.

It is one for the op-ed columnists and the radio shock-jocks who, if they can’t have their hero Tony Abbott back, are hardly less pleased by the prospect of elevating the latest version of the conservative tough guy. It is one for those who hate Malcolm Turnbull with an intensity that far exceeds their attitude to any other political leader of the modern era – on any side of politics – except perhaps Julia Gillard. It is one for those who believe that Australia can have its Brexit and Trump moments, and that Dutton is the man to deliver. It is one for the political fantasists, who believe that Australian voters would be attracted to hard-right policies if only they really understood their own interests.




Read more:
Your time starts now: how leadership instability and revenge became woven into our political fabric


They might be right. But it is difficult not to harbour the same suspicion that has always clung to the removal of Kevin Rudd in 2010 – that Malcolm Turnbull, far from being unable to win the next election, had been showing every sign of being competitive, if the party had only been able to get its loathing of him under control.

The 45-55 result in the recent Fairfax Ipsos poll was bad for the coalition, but its Newspoll results had been competitive – usually 49-51. And Turnbull was streets ahead of anyone else in the parliament as preferred prime minister.

How long ago that all seems. Whatever happens next – whether we have a Prime Minister Turnbull, Dutton, Morrison or Bishop – we can be certain it will not be sweetness and light among those who find themselves at the “out-group” when the dust begins to settle.

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The government’s problem is not so much that it has produced yet another of Australia’s famous leadership crises. It is that it has looked like a government in an advanced state of political decay, and one that has largely forfeited its right to be taken seriously. It is hard to escape the conclusion that it is time the voters were given a say.

Frank Bongiorno, Professor of History, ANU College of Arts and Social Sciences, Australian National University

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

Solicitor-General’s advice on Dutton’s eligibility to come before Friday Liberal vote


Michelle Grattan, University of Canberra

Prime Minister Malcolm Turnbull will invite a leadership “spill” motion at midday Friday, once a majority of Liberals formally ask for a party meeting.

He will not contest the subsequent ballot if – as anticipated – the spill is carried, Turnbull announced to a lunchtime Thursday news conference.

Before the meeting, the Solicitor-General on Friday will provide an opinion on the constitutional eligibility to sit in parliament of challenger Peter Dutton.

Early Thursday afternoon, the final signatures for the party meeting request were being gathered.

The delay and the early provision of the Solicitor-General’s advice give Treasurer Scott Morrison extra opportunity to build support for his own bid for the leadership as an alternative to Dutton.

After a morning of chaos and multiple ministerial resignations, including that of Senate leader Mathias Cormann, Turnbull told his news conference that if he is ousted he will quit parliament – increasing the prospect of an early election.

He said he had “made it very clear that I believe former prime ministers are best out of the parliament”.

The government has a one seat of majority and his seat of Wentworth, although it has a strong margin, would be vulnerable in a byelection because Turnbull is personally very popular there. A byelection would not be needed if there were an early election.

Turnbull said that assuming the spill was carried, the new prime minister would “have to obviously satisfy the Governor-General that they can command a majority on the floor of the House of Representatives.

“In the case of Mr Dutton, I think he’ll have to establish that he is eligible to sit in the Parliament.”

Turnbull delivered a swingeing attack on those who have undermined him.

“A minority in the party room, supported by others outside the parliament, have sought to bully, intimidate others into making this change of leadership that they’re seeking.

“It’s been described by many people, including those who feel they cannot resist it as a form of madness,” he said.

“It is remarkable we’re at this point, where only a month ago we were [in the public polling] just little bit behind Labor and in our own polls a little bit ahead – but in any view thoroughly competitive.”

Turnbull has been under consistent assault not only from Tony Abbott and other Liberal critics over a range of issues, especially energy policy and immigration, but also from commentators in the Newscorp media, especially on Sky, and from shock jocks on 2GB.

Turnbull said that what was happening was “a very deliberate effort to pull the Liberal party further to the right.”

Stressing how vital it was to resolve the issue of Dutton’s eligibility, he said: “This is a very, very significant point. As we all know, section 44 has been a companion of this 45th parliament.

“I cannot underline too much how important it is that anyone who seeks to be prime minister of Australia is eligible to be a member of parliament – because a minister, let alone a prime minister, who is not eligible to sit in the House is not capable of validly being a minister or exercising any of the powers of a minister.”

Legal experts suggest Dutton could be ineligible under the constitution’s section 44 provision on pecuniary interests. This says a person is incapable of sitting if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”.

Dutton through a family trust has an interest in child care centres that receive Commonwealth funding. The key question is whether this involves an agreement with the public service.

Dutton’s legal advice is that he has no constitutional problem, and on Thursday he issued updated legal advice.

The government shut down the House of Representatives but does not command the numbers in the Senate so had to endure question time with senior ministers who had resigned on the backbench.

3:15pm

UPDATE: JULIE BISHOP JOINS THE RACE

Liberal deputy and Foreign Minister Julie Bishop will throw her hat into the leadership ring.

Bishop, from Western Australia, has been deputy Liberal leader since 2007 under multiple leaders. She is a moderate, rates well in the opinion polls, and has a high profile internationally as well as locally. She is in much demand from backbenchers to visit their seats and is a good fund raiser.

But she will go into the ballot with the disadvantage of having made many enemies in a long political history.

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Her entry into the field complicates the situation and makes the outcome even less certain.

Michelle Grattan, Professorial Fellow, University of Canberra

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