George Brandis warns Liberals against rise of populist right


Michelle Grattan, University of Canberra

Former attorney-general George Brandis has warned of the challenge that right-wing populism poses to the Liberal Party, in his valedictory speech to the Senate ahead of taking up the post of high commissioner in London.

Brandis, a Liberal moderate, also strongly cautioned the Coalition against listening to those who said it should use national security as a political weapon against Labor, and criticised attacks on the judiciary from his own side.

With Prime Minister Malcolm Turnbull looking on, Brandis told the Senate that classical liberal values were under “greater challenge than at any time in my memory”.

“Increasingly, in recent years, powerful elements of right-wing politics have abandoned both liberalism’s concern for the rights of the individual and conservatism’s respect for institutions, in favour of a belligerent, intolerant populism which shows no respect for either the rights of individual citizens or the traditional institutions which protect them.”

Brandis was attorney-general throughout the Abbott and Turnbull governments, leaving the ministry in the December reshuffle.

He became increasingly outspoken as a voice of the moderate strand of the Liberal Party toward the end of his time in parliament. Within the government, he was critical of the hardline conservative Peter Dutton, now the home affairs minister.

In his speech Brandis targeted “right-wing postmodernism”. “A set of attitudes which had its origin in the authoritarian mind of the left has been translated right across the political spectrum,” he said.

“This presents a threat both to liberalism and conservatism, and a profound challenge to the Liberal Party as the custodian of these philosophic traditions.”

Brandis – who once set off a political storm by declaring that people had the right to be bigots – said being a liberal wasn’t easy.

“It means respecting the right of people to make choices which we ourselves would not make and of which may disapprove.

“It means respecting the right of people to express their opinions, even though others may find those opinions offensive.

“It means respecting the right of people to practice their religion, even though others may find the tenets of that religion irrational.

“It means, in a nation of many cultures, respecting the right of people to live according to their culture, even though, to others, that culture may seem alien.

“It means respecting the right of everyone to marry the person they love, even though others may find their understanding of marriage confronting.”

Brandis was a prominent figure pushing for same-sex marriage, which was legislated late last year.

In a pointed reference including some (unnamed) ministers who have criticised the judiciary, Brandis said he had not disguised his concerns at attacks on the institutions of the law – the courts and those who practised in them.

“To attack those institutions is to attack the rule of law itself. And it is for the attorney-general always to defend the rule of law – sometimes from political colleagues who fail to understand it, or are impatient of the limitations it may impose upon executive power – because although the attorney-general is a political official, as the first law officer he has a higher duty – a duty to the law itself.

“It is a duty which, as my cabinet colleagues know, on several robust occasions, I have always placed above political advantage.”

Brandis also was blunt in his rejection of those who want to see the government seek to inject more partisanship into national security.

He observed that eight tranches of national security legislation he had overseen were passed with opposition support after parliamentary committee scrutiny.

“It was a fine example of government and parliament working hand-in-hand to protect the national interest.

“I have heard some powerful voices argue that the Coalition should open a political front against the Labor Party on the issue of domestic national security.

“I could not disagree more strongly.

“One of the main reasons why the government has earned the confidence of the public on national security policy is that there has never been a credible suggestion that political motives have intruded.

“Were it to do so, confidence not just in the government’s handling of national security, but in the agencies themselves, would be damaged and their capacity to do their work compromised.

The Conversation“Nothing could be more irresponsible than to hazard the safety of the public by creating a confected dispute for political advantage. To his credit, the prime minister has always resisted such entreaties.”

https://www.podbean.com/media/player/99z29-862eb3?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

George Brandis suggests Joyce and Nash didn’t really make their ministerial decisions


Michelle Grattan, University of Canberra

Labor says decisions made by Barnaby Joyce and Fiona Nash are open to legal challenge but Attorney-General George Brandis suggests the two former ministers were not the ones who actually made them.

Joyce and Nash were disqualified from parliament by the High Court on Friday for having been dual citizens when elected.

The opposition says at least 20 executive decisions and 47 ministerial announcements made by Joyce could be open to challenge.

These include the controversial decision to relocate the Australian Pesticides and Veterinary Medicines Authority to Armidale in his New England electorate, various grants and appointments, and any decisions under the Water Act, where he had power to determine claims for payment to water access entitlement holders.

The list comes from a paper Labor sought from the Parliamentary Library on the ministerial decision-making powers exercised by Joyce and Nash, and specific important decisions they made.

Joyce had ministerial responsibility for agriculture and water resources. Nash was minister for regional development and regional communications.

The opposition says at least eight executive decisions and 43 ministerial announcements made by Nash could be subject to challenge. These included elements of each of the regional NBN rollout, the mobile blackspots program and the rural decentralisation program, as well as grants under the Building Better Regions Fund.

Labor has as well released updated advice from senior silks Matt Albert QC and Matt Collins QC about the legal status of decisions made by the former ministers.

The Constitution allows a minister to hold office for three months while not being a member of parliament.

The legal advice says that any decision made by Joyce or Nash after three months had lapsed from their appointment as ministers was open to challenge.

“Any decisions made by Joyce and Nash, purportedly in their capacity as a minister, on and after October 20, 2016, are open to challenge.

“The likelihood of proceedings being brought to challenge such decisions is high, having regard to the significance and seniority of their relevant portfolios,” the advice says.

Brandis said the government was looking very carefully at the question of the validity of the former ministers’ decisions. But “I doubt that there are many if any decisions that would be relevant in any event”, he said on Sky.

“Most decisions that ministers make are in fact made by the cabinet on the recommendation of ministers. Appointments are made by the governor-general or the federal executive council on the recommendation of ministers. So I think you will find that there is no legal consequences here at all.”

Tony Burke, manager of opposition business, told the ABC there would be “vested interests” with an interest in challenging decisions of Joyce.

“When you’re in charge of Australia’s quarantine service, there’s importers and exporters who make or lose money depending on decisions you make.

“There’ll be a series of decisions there with vested interests now combing through, and there being a whole lot of legal doubt over those decisions on the simple basis that Barnaby Joyce didn’t do what Matt Canavan did,” Burke said.

“Matt Canavan turned out to have been legally in parliament. But at least he took the precaution to step aside so that there was no risk to there being illegitimacy to his decisions.

“Barnaby Joyce and Malcolm Turnbull decided, oh no, nothing to see here, let’s just ignore the last 25 years of how the High Court ruled on this and pretend that it’s all going to be different this time.”

The ConversationBurke said there was a reason why the government had not revealed the solicitor-general’s advice. “I don’t believe for a minute it was as strong as they were claiming,” he said.

https://www.podbean.com/media/player/g8gar-796795?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

Grattan on Friday: The rift between Brandis and Dutton deepens as the behemoth of Home Affairs rises


Michelle Grattan, University of Canberra

Immigration minister Peter Dutton got a towelling from the Senate this week when he couldn’t reach a deal with the crossbench on his legislation to toughen requirements for people seeking Australian citizenship.

The bill was to impose a harder – many would say a ridiculously difficult – English test on those wanting to become Australians, and to require a longer waiting period.

The Senate gave Dutton a Wednesday night deadline to muster support or lose the bill from the notice paper. He offered some concessions but without success, and the bill dropped off – to return only if and when the numbers change. The minister says he’ll fight on.

Dutton had been sent a fresh message about the limits on his power. He doesn’t like such reminders. We know this from his attacks on court and tribunal rulings against his ministerial decisions, and his vitriol about lawyers who represent refugees and asylum seekers.

After he agreed with broadcaster Alan Jones about the “un-Australian” behaviour of lawyers who frustrate government efforts to return people to Manus and Nauru following medical treatment, the ongoing deep rift between Dutton and Attorney-General George Brandis flared publicly earlier this month.

In a speech to the International Bar Association Brandis said pointedly that “those who exercise executive power must always accept that they are subject to, and must always be respectful of, the supremacy of the law. And in that process, as the custodians of the rule of law, the role of lawyers is essential”.

Brandis didn’t name Dutton, but his target was clear.

Colleagues observe the palpable hostility between the two ministers, both from Queensland, as Brandis has recently been increasingly willing to assert small-l liberal positions (slapping down Pauline Hanson and Tony Abbott as well as Dutton), and has in turn been the object of apparently antagonistic briefings to the tabloids.

As the new Home Affairs department that Dutton will head is being sewn together – including immigration and bringing under its umbrella ASIO, the Australian Federal Police, Border Force, the Criminal Intelligence Commission and AUSTRAC – it’s an open secret that Brandis (who loses ASIO but retains the power to sign its warrants), his department and some officials within the agencies are deeply apprehensive about it.

Some of their concerns may be reinforced by the picture painted a week ago by the new department’s secretary-designate, and current immigration secretary, Mike Pezzullo who, like Dutton, is seen as an empire builder who takes no prisoners.

Pezzullo, speaking to the Trans-Tasman Business Circle, spelled out Home Affairs’
“philosophical context”, and sent the message that it would be activist, intrusive (often secretly) and have long tentacles.

Pezzullo’s starting point was the “duality of good and evil” at the heart of globalisation.

On the “evil” side – the “dark universe” – “terror has become de-territorialised”, and global networks of crime and exploitation are becoming more apparent.

“There are global dark markets for hacking, money laundering, cryptocurrency movement, assumed identities for criminals, terrorists, child exploitation perpetrators and others,” he said.

In this context the security power, designed to protect the home front, “is being organised into a single enterprise to deal with the interconnected and globalised threats that we face at home”, in an era when “home” and “outside” blur.

“To protect and secure home, we have to be prepared to act globally and to develop networks with like-minded actors, including industry.”

The task requires wide and deep reach, with the department’s “facilitation” functions (migration, passenger services and the like) and security being the flip sides of the one coin.

“The state has to increasingly embed itself – not majestically, sitting at the apex of society dispensing justice – but the state has to embed itself invisibly into global networks and supply chains, and the virtual realm, in a seamless and largely invisible fashion, intervening on the basis of intelligence and risk settings. Increasingly, at super scale and at very high volumes”, Pezzullo said.

“Sometimes we’ll embed in a way that will be invisible to you [in business], because we’ll take data and we’ll put it with other data sources and then see, we’ll wash it and then we’ll come back with an intervention decision which might be ‘no one on that plane needs to be questioned’ or maybe ‘everyone does’, and you’ll go ‘yep, OK, whichever we have to do, we do’”.

The facilitation model requires “a public-private partnership model between Home Affairs and its component agencies and virtually every sector … whether it’s the banking system and talking to them about the active defence of their networks, whether it’s the infrastructure sector … utilities, power, water, etc, the air traffic control system,” he said.

“Home Affairs is going to be sort of the centre of excellence of figuring out how does Australia work. And we have to be careful about how we write this down, because when you then write the manual, how you take Australia down, there’ll be like one copy of that, and I’m not going to tell you where I’m going to keep that, because that’s going to be a very dangerous book!”

When the Home Affairs department was announced Malcolm Turnbull emphasised the checks on its power, which will be located especially in the Attorney-General’s department.

But in government and administration, culture and attitudes can often be an important as formal restraints and oversight, and Pezzullo’s critics point to what happened to the culture after the integration of customs and immigration.

The old immigration department used to focus on the nation building aspects of the people flow to Australia. Now, the dominant culture of the Immigration and Border Protection department is one focused on security, with a very disciplined, somewhat military overlay. (Pezzullo has an intense interest in things military and was disappointed to miss out on the job of secretary of defence, for which he was well qualified, when it was recently up for grabs.)

As the Home Affairs behemoth looms, sharpening questions about what should be the limits on state intrusions, this week saw a paradoxical juxtaposition in relation to Australia’s role in and performance on human rights.

Australia was elected to the United Nations Human Rights Council, a body to protect and promote human rights globally. At the same time, it was robustly criticised by the UN Human Rights Committee, a group of experts monitoring implementation of the International Covenant on Civil and Political Rights.

As the year’s end approaches, the speculation continues to be strong that Brandis will depart parliament in Turnbull’s summer reshuffle. There is no doubt that Turnbull – who is thick as thieves with Dutton – wants him out, not least to promote Mathias Cormann to Senate leader and (probably) Christian Porter to attorney-general.

The ConversationThe exit of Brandis would be one less frustration for Dutton. It’s ironic, but true, that the man who was lambasted for asserting the right for people to be bigots is at present the strongest voice in the cabinet for the protections of the rule of law.

https://www.podbean.com/media/player/k27zv-7889f2?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

No legal doubt over decisions Joyce and Nash take: Brandis



File 20170820 21088 mgnpzv
George Brandis said the government would ask the court to deal with the citizenship issue urgently.
AAP/Mick Tsikas

Michelle Grattan, University of Canberra

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Michelle Grattan, Professorial Fellow, University of Canberra

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