Why NZ needs to follow weapons ban with broad review of security laws


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Within a week of the Christchurch terror attacks, Prime Minister Jacinda Ardern has announced a ban on semi-automatic weapons.
AAP/David Alexander, CC BY-SA

John Battersby, Massey University

Up until Prime Minister Jacinda Ardern’s announcement of a ban on military-style weapons yesterday, New Zealand had a system of licensing firearms holders and used a process of application, vetting, reference checks and attendance at firearms safety lectures.

Knowledge of the Firearms Code was required and tested. A firearms license holder was able to then legally acquire any number of firearms. New Zealand has not set up an arms register since the Arms Act was enacted in 1983.

There is no tally of how many firearms are in New Zealand, and no log of how many firearms any individual may have. There is an estimated 1.3 million firearms legally owned in New Zealand, and nothing beyond speculation about how many illegal weapons have found their way in.

New Zealand Prime Minister Jacinda Ardern announces a ban on military style semi-automatic weapons and assault firearms.



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Will the New Zealand gun law changes prevent future mass shootings?


Loop holes in gun laws

With a certain class of license, military style semi-automatic weapons (in unlimited numbers) could be acquired legally. Some 14,000 of these weapons are thought to be legally owned in New Zealand.

Loop holes in current legislation abound. These make it possible to modify weapons and obtain large magazines, and even to buy armour-piercing bullets. Why, in a peaceful, democratic and open society, does anyone need a military-style automatic weapon and armour piercing ammunition?

Prime Minister Ardern has shown the decisive leadership we should see from a leader who genuinely cares about the people she leads. She has finally grasped the nettle, exploiting the current situation to drive through the changes New Zealand should have made 23 years ago following the Port Arthur massacre. She has outwitted those who might oppose her move, because there is no argument that anybody could muster now that would in any way resonate with the vast majority of New Zealanders.

Ardern has announced the ban on a number of weapons, signalled changes to the firearms licensing regime and the need to keep tabs on the national recreational arsenal. But there is a tough road ahead.




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Rural, recreational use of firearms

Politicians have an unquestioning faith that legislation is sufficient, but it is largely impotent without adequate resourcing for the enforcement of new rules. With only an estimate to work on, New Zealand Police (the administrators of firearms regulations) will have to identify and locate the owners of these weapons and implement the buy-back and amnesty that will be required.

Many owners will give them up. Their humanity will outdo their desire to have them, but the shocking reality of panic buying of semi-automatics since the Christchurch tragedy signals that clearly there are those who will seek to subvert the government’s intent. Police will have to investigate those who fail to cooperate, safely seize the weapons and prosecute the offenders.

Most firearms license holders in New Zealand do not own military style semi-automatic weapons. Many are rural, recreational hunters or use their weapons on ranges. They look after their weapons responsibly, secure them safely, own them legally and use them at no risk to the general public.

Most who own semi-automatic weapons are no different. We should not demonise a section of society simply because of the horrific, obscene and brutally inhuman actions of one lonely individual who no more represents gun owners than he does any other group of New Zealanders.

Illegal weapon imports

But this is not the issue. The issue is that the privilege of owning a certain class of weapons is not worth the terrible cost of 50 people being gunned down in prayer. New Zealand is already seeing the steady illegal importation of firearms, often tied to the increasing movement of illicit narcotics. Banning semi-automatics will increase the demand for the importation of these weapons illegally, adding extra pressure on law enforcement agencies.




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Why overhauling NZ’s gun and terrorism laws alone can’t stop terrorist attacks


For a ban on military style semi-automatics to have meaning, New Zealand’s long coast line, its airports and sea ports, through which illegal commodities are moving, will need resources that allow fit-for-purpose enforcement powers, people and tactics.

The changes New Zealand will now make will not guarantee it will be free of terrorism in the future. Other countries have much stricter firearms regulations, having taken far stronger measures years ago, but they have still suffered terrorist attacks. Firearms reform is one small step for a country that will need to address a plethora of gaps in its security approach.

New Zealand’s terrorism legislation is inadequate. It was found wanting when police attempted to apply it in 2007 during the “Urewera raids”, but charges could not be laid then. New Zealand’s then Solicitor General David Collins described the Terrorism Suppression Act then as incoherent and unworkable. How New Zealand manages social media needs review, and the traditional minimalist approach to national security will no longer suffice.

New Zealand has faced security crises before during the Russian scare in the 1880s and the second world war in the 1940s. It has often been caught out doing “too little, too late” to be saved only by its distance from any potential threat. The internet has extinguished that distance. It has brought the ills of the rest of the world to us. It is already too late. We must ensure that what we do now, is not too little.The Conversation

John Battersby, Police Teaching Fellow, Massey University

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

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Will the New Zealand gun law changes prevent future mass shootings?



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New Zealand Prime Minister Jacinda Ardern has announced a ban on certain military-style weapons.
AAP/David Alexander

Rick Sarre, University of South Australia

As she foreshadowed in the aftermath of the Christchurch massacre last Friday, New Zealand Prime Minister Jacinda Ardern has just announced a ban in that country on specific military-style firearms. It will soon become an offence to own or possess semi-automatic firearms and shotguns with detachable magazines capable of firing more than five cartridges.

Later this month, the government will consider further changes to the law that will tighten licensing requirements and impose limits on certain types of ammunition. There will be a gun buy-back scheme in place in due course that will provide compensation to those who possess soon-to-be-illegal guns. Preliminary advice suggests that might cost the country between NZ$100 million and NZ$200 million.




Read more:
Why overhauling NZ’s gun and terrorism laws alone can’t stop terrorist attacks


Thoughts immediately go to the aftermath of the 1996 Port Arthur tragedy in Australia. Then-Prime Minister John Howard had been elected only six weeks before the Tasmanian horror unfolded. He immediately set in train the gun control measures that no previous government, conservative or progressive, would ever have thought possible.

The government placed a ban on the sale, transfer, possession, manufacture, and importation of all automatic and most semi-automatic rifles and shotguns (and their parts, including magazines). More than 640,000 such weapons were thereupon surrendered and later destroyed at a cost to the taxpayer of around A$250 million.

In Australia today, there continues to be bipartisan political consensus and broad community support for what was titled the National Firearms Agreement (NFA). In 2017, it was reaffirmed by the Council of Australian Governments (COAG).

There has been some criticism that certain aspects of the original agreement have been watered down in some jurisdictions in recent years, but the requirements outlined by the agreement generally remain intact.

Did the Australian gun ban and buy-back scheme make inroads into the rate of firearm-related deaths? Did it prevent mass shootings? Jacinda Ardern appears to be convinced that answers to both questions are in the affirmative. Let’s look at the evidence from the past 23 years in this country to test her assumptions.




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No massacres and an accelerating decline in overall gun deaths: the impact of Australia’s major 1996 gun law reforms


Gun violence in Australia since the buy-back

It is unequivocal that gun death rates in Australia have been falling consistently since 1996. Some commentators object to the connection between this trend and the NFA, saying the downturn was simply a continuation of a long-term decline in gun violence generally.

But recent research found that, compared with the trend before 1997, there was a more rapid decline in firearm deaths after the implementation of the NFA.

However, this conclusion was quickly challenged by another researcher, who argued these findings were simply a consequence of the rarity of these events, and that the data were thus skewed.

The researchers on the first paper then set out to test the null hypothesis: that is, that the rate of mass shootings would remain unchanged after the introduction of the NFA. They concluded that while a definitive causal connection between this legislation and the 22-year absence of mass firearm homicides was not possible, there was nevertheless evidence that before 1996, approximately three mass shootings took place every four years. Had they continued at that rate, 16 incidents would have been expected by February 2018, but that pattern did not play out.

The evidence from the National Homicide Monitoring Program, collated by the Australian Institute of Criminology, concurs with the evidence provided by these authors. Its data indicate that the share of murders committed with firearms dropped significantly around the time of the buyback scheme. Indeed, the number of homicide incidents involving a firearm decreased by 57% between 1989-90 and 2013-14.

In 1989-90, firearms were used in 24% of homicides. In 2013-14, the figure was 13%.

Incidentally, in the United States, 60% of homicides are committed by firearms. To the extent that correlations are useful, there should be no surprises here. The US gun ownership rate (guns per 100 people) is more than five times the Australian rate.

Reducing access to firearms lowers the risk of gun deaths

The evidence that countries with higher levels of gun ownership have higher gun homicide, gun suicide, and gun injury rates is convincing. Anyone advocating gun ownership as a means of lowering levels of violence and crime is arguing against the weight of research.




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Christchurch attacks are a stark warning of toxic political environment that allows hate to flourish


Jacinda Ardern’s initiative cannot do her country any harm. Twenty-three years after Port Arthur and the NFA, firearm involvement in homicide incidents in Australia, including the involvement of handguns, remains at an historic low.

While it would draw too long a bow to assert conclusively that the downturn in firearm deaths in Australia can be attributed to the gun law reforms alone, the implementation of the NFA can be closely associated with the reductions in mass shootings and firearm deaths.

The choices made by the Ardern government to eliminate certain firearms from New Zealand to improve community safety are consistent with the long-term evidence from Australia.The Conversation

Rick Sarre, Professor of Law and Criminal Justice, University of South Australia

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

Why overhauling NZ’s gun and terrorism laws alone can’t stop terrorist attacks



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Grieving members of the public following a shooting at the Masjid Al Noor in Christchurch.
EPA/Martin Hunter, CC BY-SA

John Battersby, Massey University

My research focuses on terrorism in or affecting New Zealand. Until yesterday, my phone didn’t ring that often because few were interested in anything I had to say. Since yesterday, it has not stopped.

There is no understating the horrific nature of the Christchurch tragedy. Forty nine people have been killed, and more than 40 are being treated for injuries at Christchurch hospital.

Three people have been arrested in relation to the mosque shootings. One Australian citizen has appeared in court today charged with murder.

New Zealanders will need to come to terms with this tragedy, vent emotions and frustrations, and they will want to know why this could not be stopped. These are valid questions.

New Zealand is a small country, geographically distant from the rest of the world. It has been happy in the assumption that the violent extremism that has showed itself on multiple occasions on five continents over the last 20 years had never happened here. Many New Zealanders believed that because it hadn’t, it couldn’t.




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Geographic isolation no protection

There was a definite realisation by those in the security sector that this assumption was not safe. The spread of extremism through social media simply obliterates geographical distance and there is really nothing to prevent overseas events being replicated here.

The emphasis was on monitoring and detecting extremism – in whatever form it took. The few arrests for possession and distribution of ISIS related propaganda exhibit that fact. It was not confined – as some commentators have suggested – to just those engaging with violent jihadism.

Another key problem is hindsight. Now that the culmination of a sequence of activities has become so painfully clear, it will be inevitable that several points will be picked out that security sector operators perhaps did see, or could have seen. A retrospective case will be made that therefore they should have seen this coming.

But any sign there was, would have occurred in the context of the day before yesterday. Trying to convince the average New Zealander that anything like this could ever happen here would have been no easy endeavour.

Review of gun and terrorism laws

There will be questions over the resourcing and powers of law enforcement and intelligence agencies, and rightfully so. But we must be mature and evidence-based in the conclusions we take from all this.

New Zealand’s Prime Minister Jacinda Ardern has announced a review of gun laws. New Zealand doesn’t have a gun register, but there are an estimated 1.3 million legally owned firearms, with illegal firearms a significant problem.

It is not just the law that needs a review. Gun control, monitoring and enforcement will need to be tightened, but changes need to be considered calmly and focus on the individuals that are not likely to abide by any new law. The vast majority of licensed gun owners are not a problem, but they will need to accept that military-style automatic weapons will likely be banned and a national register will become a reality.

New Zealand’s Terrorism Suppression Act was found wanting in 2007, following the “Urewera raids”. Police relied on the act to spy on and arrest activists who allegedly trained to use semi-automatic weapons in military-style camps in the Urewera forest. Then Solicitor-General David Collins QC described the act as “incoherent and unworkable”. Nothing meaningful has been done with it since.

Social media to blame

New Zealand is a democratic country in which freedom of expression, conscience, religious freedom and free speech are valued. Any legislative change will need to impinge on these as little as possible, but people need to be safe here.




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Regardless of how big and well-resourced security agencies are, overseas experience has shown that individual actors, or small tightly integrated groups can slip through any security filter. It is simply impossible to monitor people’s thoughts, intentions, sayings and social media accounts so closely that every signal that someone might be planning to carry out an attack is seen.

Australian media suggestions of an “intelligence failure” are useful to a point. But the fact that at least one of the Christchurch offenders left Australia a short time ago and was not on any watch-list of concern in Australia, where police and intelligence powers are much more comprehensive, demonstrates this is a very difficult failure to guard against.

This attack was enabled by, and certainly comprised a strong element of, social media. Social media has been wilfully and readily adopted across modern societies. This has happened without much thought being given to its usefulness to organised criminals or extremists to spread their toxic views, or its ready use as a means of sourcing an audience for terror attacks.

As a society perhaps we should take pause to consider the broader implications before rushing to adopt every new piece of communications technology. It’s all very well to ask the security sector what could they have done to stop this attack, when we could ask ourselves the same – what could we have done?The Conversation

John Battersby, Police Teaching Fellow, Massey University

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

Why Australia’s anti-vilification laws matter



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High-profile conservatives such as former PM Tony Abbott and commentator Alan Jones often complain that freedom of speech is being stifled, but the research does not support that view.
AAP/David Moir

Katharine Gelber, The University of Queensland and Luke McNamara, UNSW

This piece is part of a series on race and racism in Australia. The series examines this complex and incendiary topic, and the role it plays in contemporary Australia. You can read the rest of the series here.


Nearly 30 years ago, Australians made a decision to start implementing anti-vilification laws. They now exist federally, in every state, and in the ACT.

But unlike many countries around the world, the focus here is on civil laws. Although many states have criminal laws prohibiting serious vilification (such as NSW and Queensland), there are no criminal “hate speech” laws at the federal level. In practice, the vast majority of vilification complaints in Australia are dealt with under the civil law.

The basic idea is pretty simple. In a society that aspires to embrace diversity and support the human rights of all, it is not OK to vilify someone (that is, denigrate or defame them) because of who they are, as opposed to something they might have done.




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We have been researching anti-vilification laws for more than two decades. So, how well do these kinds of laws work? Do they provide redress and remedies to targets of hate speech? Do they stifle free speech? And, perhaps most importantly, do they reduce the incidence of hate speech?

First, let’s look at whether hate speech laws provide redress and remedies to targets of hate speech. If a person feels that an incident of unlawful vilification has occurred, they can lodge a complaint by contacting the relevant state authority (for example, the NSW Anti-Discrimination Board) or the Australian Human Rights Commission.

There are procedural difficulties in lodging a complaint. For example, the person complaining needs to be from the group that was targeted and has to be able to identify the person about whom they are complaining (which is difficult when vilification happens in public places and the perpetrator is a stranger). The process can also take a long time. This can discourage people from lodging complaints or cause them to give up before the matter is resolved.

After a person lodges a complaint, the authority will assess whether the allegation falls within the definition of unlawful vilification. If so, the authority will investigate and attempt to mediate a resolution.

Our research has found that in about a third of complaints, a successful resolution is reached. This usually means that the person who made the comments agrees to stop making them or agrees to apologise, or the workplace where the comments occurred agrees to hold workshops to educate their staff about appropriate behaviour. These are all good outcomes.

The whole mediation process is confidential, so the public rarely gets to hear about these success stories. But they do show that the laws can provide redress and remedies to targets of hate speech.

The same research project showed that communities targeted by hate speech support the existence of the laws. Even if they never make a formal complaint, people appreciate that the government has legislated to tell everyone that racist, homophobic or other vilification is unacceptable. These laws help people to feel valued and supported.

Unfortunately, there are some gaps in current anti-vilification laws. Most laws don’t cover religious vilification and so, for example, little protection is offered to Muslims, even though we know they are one of the most vilified groups in Australia.

Do hate speech laws stifle free speech?

One of the most common arguments made by opponents of hate speech laws is that they stifle free speech. But our research does not support this claim.

Only a small number of complaints are lodged around the country each year (about 200), and less than 2% of those complaints end up in a court or tribunal. Of those that do, only half succeed. The most commonly ordered remedy is an apology or correction, or removal of the material from public view.

There is little evidence that people feel some topics are “off limits”. On the contrary – political debate in Australia is robust and wide open.

In fact, some of those who complain most vociferously about being silenced – like Andrew Bolt, Alan Jones and Tony Abbott – are amongst the loudest and most influential voices in Australia. They are prominent public commentators who enjoy wide media exposure.

Do hate speech laws reduce the incidence of hate speech?

This is perhaps the most difficult question to answer.

Our research has shown that there have been some changes in how controversial topics are discussed in outlets like newspapers. Overt racial and other vilification is less common now. Anti-vilification laws have played a part in effecting this change, but lots of other factors have been important, too, including changing social attitudes.




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Unfortunately, as our research confirms, there has been little to no change in the incidence of vilification in public places – on the street, on trains and buses, or in shopping centres, for example. The only shift that has occurred is in who is targeted, with more recent waves of migrants newly targeted. There has been a shift, for example, towards people of African heritage and from the Middle East.

On this level, anti-vilification laws do not seem to have reduced the overall incidence of hate speech.

Another way of measuring the success of anti-vilification laws is in public attitudes. Opinion polls show strong public support for the idea that governments should draw a line in the sand – one that says that racist hate speech and other forms of group vilification are unacceptable.

This is perhaps the most important legacy of 30 years of anti-vilification laws in Australia.The Conversation

Katharine Gelber, Professor of Politics and Public Policy, The University of Queensland and Luke McNamara, Professor of Law, UNSW

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

Government needs to slow down on changes to spying and foreign interference laws


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Attorney-General Christian Porter wants the legislation passed before the “Super Saturday” byelections on July 28.
AAP/Lukas Coch

Tony Walker, La Trobe University

What’s the rush? If you believe Federal Attorney-General Christian Porter, unless two pieces of security legislation are in place in the remaining two weeks of parliament before the winter recess, the country will be in peril.

This was the line Porter was taking yesterday on the release of the Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill.

His argument is nonsense. Labor should also be taken to task for being party to a hasty process that appears on the face of it to be expedient. Labor’s persistent concern is to avoid being wedged on security issues.

Under the proposed legislation, bodies such as Amnesty International that have been critical of Australian government policies may be vulnerable.

Porter wants two separate tranches of legislation – the Espionage and Foreign Interference Bill and a Foreign Influence Transparency Scheme Bill – to be passed before the Super Saturday byelections on July 28.




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Porter’s argument appears to be that unless the legislation passes in the concluding two weeks of the midyear session of parliament, those byelections will be conducted in a perilous atmosphere. He said:

There’s an unprecedented level of foreign intelligence activity in Australia and that means more foreign agents and more foreign power using more tradecraft and more technologies to engage in espionage and foreign interference and the attempted foreign influence of our democratic processes.

And that increase in volume is detectable even in the period of time that this piece of legislation has been under consideration by the committee.

No reasonable person would argue against the need for beefed-up legislation to deal with challenges to democratic processes such as those witnessed during the recent US election.

Russian cyber interference in the US political process is hardly in question, nor attempts by Russian agents of influence to suborn the system. The question is to what degree?

What is proposed in Australian legislation foreshadowed by Prime Minister Malcolm Turnbull late last year is a new and far-reaching suite of laws aimed at limiting foreign interference.

An initial version of the bill was poorly drafted. It represented an unreasonable threat to individual liberties and freedom of expression.

It was particularly antagonistic to journalists operating in the security space. Long jail terms for publication of unauthorised security material were incorporated.

The insertion of a public interest amendment has somewhat alleviated that risk.

Fairfax Media’s publication overnight of leaked documents dealing with alleged war crimes by members of the Special Air Service might have fallen foul of such provisions, and may still do so.

Media coverage of the draft amendments to the Espionage and Foreign Interference Bill has been relatively favourable. However, this might have less to do with the merits of the legislation than with relief the bill is less threatening to legitimate inquiry than an earlier draft.

In all, parliament’s Joint Committee on Intelligence and Security made 60 recommended amendments to the Espionage and Foreign Interference Bill.

Most of these recommendations are cosmetic, except those relating to journalistic inquiry. They include the need for security certifications to be validated before proceedings could be initiated for an espionage or secrecy offence, and a review of the legislation by the National Security Legislation Monitor after three years.

Urging quick action on the Espionage and Foreign Interference Bill, Porter argued that a second bill, the Foreign Influence Transparency Scheme Bill, was required to complement the main piece of legislation.

This refers to legislation that sought to proscribe involvement in Australian political processes not just by foreign governments and their agents, but by entities like GetUp, which has drawn part of its funding from foreign sources.

The scope of this proposed legislation – which is yet to be agreed by the JCOIS – has now been limited to foreign governments, foreign-related entities, foreign political organisation and foreign government-directed individuals.

Foreign companies would be excluded from this provision unless it could be demonstrated they were closely connected to a foreign government or political organisation.

In such cases, government-dominated companies, even those associated with friendly nations, would be required to register under the proposed law.

In efforts to guard against interference by individuals or companies who might be connected with a foreign government, the Attorney-General’s Department would be empowered to issue “transparency notices” to identify such individuals or companies.




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New foreign interference laws will compound risks to whistleblowers and journalists


An appeals process against these findings would be available through the Administrative Appeals Tribunal. Porter said:

It’s vital that our national security legislation and framework reflects the modern challenges that we face … that framework remains dangerously incomplete while these two remaining and critical bills remain unlegislated.

As interested parties digest the provisions of the proposed amendments, it’s likely more objections will be raised, such as those by Claire O’Rourke, one of Amnesty’s Australian representatives.

O’Rourke told The Guardian that under the Foreign Influence Transparency Scheme Bill charities like Amnesty that hold the Australian government to account on its human rights record could face criminal charges. She said:

This is clear government overreach and a cynical exercise by both sides of politics to shield themselves from the scrutiny of Australian society, including charities.

The ConversationThe upshot of all this? Quite simply, more time is needed to review proposed amendments.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

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

New electoral law could still hobble charities



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Charities are unclear about how they can engage in democracy because the terms in the proposed bill are unclear.
Shutterstock

Krystian Seibert, Swinburne University of Technology

The Joint Standing Committee on Electoral Matters has released its report into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017.

The bill seeks to ban foreign donations to political parties and their “associated entities”. But it also seeks to capture organisations, including charities, that undertake public advocacy on policy issues.

While much of the media attention has focused on the foreign donation ban, the bill also introduces a new compliance framework for such actors. This applies irrespective of whether they receive foreign donations or not.

The inquiry received over 200 submissions from a diverse range of charities, not-for-profit organisations, think tanks and legal experts. Most expressed major concerns about the complex and burdensome nature of the proposed compliance framework, and the “chilling effect” it could have on advocacy by charities in particular.

The committee made 15 recommendations in its report, released on Monday. It provided in-principle support for the bill’s passage, subject to the recommendations being adopted.




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Ban on foreign political donations is both too broad and too narrow, and won’t fix our system


The recommendations are a step in the right direction, responding to many of the concerns raised in the inquiry. But they are light on detail, and much will depend on how the government responds to them.

Contrary to what the chair of the committee, Senator Linda Reynolds, has stated, a number of the recommended changes are complex. This is particularly the case with redefining “political expenditure”, a key term that underpins almost the entire bill.

What is ‘political expenditure’?

If a charity or other organisation incurs “political expenditure” above $13,500, then it becomes subject to the bill’s compliance framework. Additional requirements are imposed for those incurring more than $100,000, but the committee recommended this level be reviewed.

The definition of this term is unclear. It’s also potentially very broad. It includes any expenditure on the public expression of views on an issue that is “likely to be before electors in an election”, regardless of whether an election has been called. This could include activities such as publishing reports advocating for changes to government policies, media engagement, advertising and potentially even paying staff to do this work.

A big problem is that the bill provides no guidance on the specific types of activities that are captured, nor how a charity is meant to look into the future and predict whether an issue is “likely to be before electors in an election”.

This makes it almost impossible for a charity to know with any certainty whether it’s complying with the definition.

The Australian Electoral Commission provided a supplementary submission to the inquiry, setting out the seven steps it uses to interpret the definition.

But it’s complicated and unworkable, and involves looking at different party platforms to assess how topical an issue may be. A leading constitutional law expert, Professor Anne Twomey, has extensively critiqued it.

It’s therefore not surprising that the committee recommended the definition be amended to make it more precise. The aim would be to ensure it applies only to:

expenditure undertaken to influence voters to take specific action as voters, so as not to capture non-political issue advocacy.

However, this will be no simple task, as the line between the two is not clear.

For example, if a charity produces a document outlining the positions of different political parties on the issue of homelessness, how would that be defined? Arguably, it is just providing information to voters, rather than influencing them to “take specific action as voters”.

What should be done?

Although the committee made a laudable attempt to address the various flaws in the bill, there is no quick fix.

Given the key term underpinning the bill is flawed and cannot be easily redrafted, the best outcome would be for it to be withdrawn.

This would allow for more public consultation and the preparation of a comprehensive regulatory impact statement. This would quantify compliance costs and consider alternative policy options.

If the government won’t withdraw the bill, it at least needs to act on each of the committee’s recommendations. In doing so, it should undertake public consultation on the detail of any amendments and seek a genuine outcome that ensures advocacy by charities and other organisations isn’t stifled.




Read more:
Federal government’s foreign donations bill is flawed and needs to be redrafted


More broadly, it’s arguable that the entire premise for increased regulation of non-political party actors such as charities and other organisations is flawed.

Few would argue against the need for some basic disclosure requirements regarding their direct electioneering activities, to provide transparency about the origin of the funds used for these activities. But these requirements already exist.

It’s not clear why a new compliance framework is needed to further burden these organisations, made up of people coming together to participate in our democratic processes. This is something explored in a US context in the book Unfree Speech. It argues against increased regulation because it restricts the free exchange of views, which is meant to be a cornerstone of democracy.

The argument for increased regulation of charities, including banning them from receiving donations from international philanthropy for use towards “political expenditure”, is particularly weak. By their very nature, charities exist for the public benefit. They are not permitted to have politically partisan purposes under the Charities Act 2013.

There is no evidence that international philanthropy is using Australian charities to subvert our democracy. On the contrary, the support it provides helps charities advocate on important issues such as the role of Australian aid.

The ConversationRegulation can have benefits, but it can also have costs. If this bill becomes law, the cost could be a less vibrant democracy, with fewer voices willing to debate the policies that will shape our nation’s future.

Krystian Seibert, Industry Fellow, Centre for Social Impact, Swinburne University of Technology

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

Shorten’s plan to triple anti-dumping penalties misunderstands the law


Weihuan Zhou, UNSW

Bill Shorten’s proposal to triple anti-dumping penalties demonstrates a misunderstanding of dumping and its impact on the economy. It also misunderstands when anti-dumping measures may be lawfully applied and to what extent.

Shorten’s proposal is purportedly to prevent Australia from becoming a “dumping ground for cheap foreign goods sent here by trade cheats”. The Opposition Leader says Labor is a strong believer in trade, but it should be conducted on a “level playing field”. He also wants to give the Anti-Dumping Commission 30 new staff and new responsibilities.




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Australia may be engaging in ‘free trade’ but it’s becoming more protectionist too


There are no existing penalties in the World Trade Organisation (WTO) anti-dumping regime, or in Australia’s anti-dumping regime – that would be in breach of WTO rules. Australia’s current regime involves the use of anti-dumping measures to counteract injury caused by dumped imports to domestic industries. These typically take the form of import tariffs.

Anti-dumping measures like duties are not “penalties” as such, but simply taxes in the form of a customs duty to remove the injury caused by dumping.

In recent years, the use of anti-dumping measures has been on the rise predominantly to protect the steel industry in Australia.

Current dumping rules

“Dumping” is when an exporter exports goods to another country at an export price less than what it sells the same like goods in its own country. Under WTO rules, this is neither illegal nor unlawful.

It is a perfectly legitimate commercial practice. In fact, in 2016 the Productivity Commission found there was no compelling economic rationale for a country like Australia to act against dumping.

Rather than prohibiting the practice of dumping, WTO anti-dumping rules only provide a remedy where the dumping causes material injury to a domestic industry in the country of import, for example reduced revenues and profits. The remedy is the imposition of dumping duties, or customs duties.

This should be equal to or less than the margin of dumping – the extent to which an exporter’s export price is lower than its home market price.

It’s not clear how the “triple penalties” proposed by Shorten could be imposed in line with the WTO rules.




Read more:
It’s time to drop Australia’s protectionist anti-dumping rules


Increasing penalties could hurt the economy

Mr Shorten’s anti-dumping penalties would have several effects – including to increase prices of imported goods and inputs for Australian produced goods. This price rise would be passed on to Australian companies and consumers. For example, this would increase the cost of steel for construction industries.

Shorten’s policy would benefit a small group of import-competing industries, such as those producing steel and A4 copy paper, including companies that are wholly owned by foreign companies. But such policy completely ignores the interest of Australian manufacturers using imported materials, their employees or consumers.

Increased dumping penalties could also stifle competition, increasing prices. This could also increase unemployment, as the imposition of the penalties would make the cost of business uneconomical.




Read more:
Consumers lose out to Australia’s protectionist anti-dumping laws


Shorten’s policy on dumping seems misguided and ill-informed and can only operate to Australia’s detriment. These observations are consistent with the findings of the Productivity Commission that Australia’s anti-dumping system has become increasingly more protectionist and damaging.

In the interests of fair trade, similar penalties would need to apply to Australian companies engaged in dumping, and to both export and domestic sales to ensure a “level playing field”.

More fundamentally, as the Productivity Commission has observed, “fairness” does not provide a justification for anti-dumping measures which fail to consider the impact of such measures on the community as a whole.

What’s more, Shorten’s “triple penalty” could drag Australia into the ongoing trade conflict and harm Australian consumers and industries using imports from China. If the “triple penalty” provokes China’s retaliation, that will hurt Australian goods and services exporters.

The ConversationThis article was co-authored by Andrew Percival, Principal at Percival Legal.

Weihuan Zhou, Senior Lecturer and member of China International Business and Economic Law (CIBEL) Initiative, Faculty of Law, UNSW Sydney, UNSW

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

Australia should strengthen its privacy laws and remove exemptions for politicians


David Vaile, UNSW

As revelations continue to unfold about the misuse of personal data by Cambridge Analytica, many Australians are only just learning that Australian politicians have given themselves a free kick to bypass privacy laws.

Indeed, Australian data privacy laws are generally weak when compared with those in the United States, the United Kingdom and the European Union. They fall short in both specific exemptions for politicians, and because individuals cannot enforce laws even where they do exist.




Read more:
Australia’s privacy laws gutted in court ruling on what is ‘personal information’


While Australia’s major political parties have denied using the services of Cambridge Analytica, they do engage in substantial data operations – including the Liberal Party’s use of the i360 app in the recent South Australian election. How well this microtargeting of voters works to sway political views is disputed, but the claims are credible enough to spur demand for these tools.

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Greens leader Richard di Natale told RN Breakfast this morning that political parties “shouldn’t be let off the hook”:

All political parties use databases to engage with voters, but they’re exempt from privacy laws so there’s no transparency about what anybody’s doing. And that’s why it’s really important that we go back, remove those exemptions, ensure that there’s some transparency, and allow people to decide whether they think it’s appropriate.

Why should politicians be exempt from privacy laws?

The exemption for politicians was introduced way back in the Privacy Amendment (Private Sector) Bill 2000. The Attorney-General at the time, Daryl Williams, justified the exemption on the basis that freedom of political communication was vital to Australia’s democratic process. He said the exemption was:

…designed to encourage that freedom and enhance the operation of the electoral and political process in Australia.

Malcolm Crompton, the then Privacy Commissioner, argued against the exemption, stating that political institutions:

…should follow the same practices and principles that are required in the wider community.

Other politicians from outside the two main parties, such as Senator Natasha Stott Despoja in 2006, have tried to remove the exemptions for similar reasons, but failed to gain support from the major parties.

What laws are politicians exempt from?

Privacy Act

The Privacy Act gives you control over the way your personal information is handled, including knowing why your personal information is being collected, how it will be used, and to whom it will be disclosed. It also allows to you to make a complaint (but not take legal action) if you think your personal information has been mishandled.

“Registered political parties” are exempt from the operation of the Privacy Act 1998, and so are the political “acts and practices” of certain entities, including:

  • political representatives — MPs and local government councillors;
  • contractors and subcontractors of registered political parties and political representatives; and
  • volunteers for registered political parties.

This means that if a company like Cambridge Analytica was contracted to a party or MP in Australia, their activities may well be exempt.




Read more:
Is there such a thing as online privacy? 7 essential reads


Spam Act

Under the Spam Act 2003, organisations cannot email you advertisements without your request or consent. They must also include an unsubscribe notice at the end of a spam message, which allows you to opt out of unwanted repeat messaging. However, the Act says that it has no effect on “implied freedom of political communication”.

Do Not Call Register

Even if you have your number listed on the Do Not Call Register, a political party or candidate can authorise a call to you, at home or at work, if one purpose is fundraising. It also permits other uses.

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How do Australian privacy laws fall short?

No right to sue

Citizens can sue for some version of a breach of privacy in the UK, EU, US, Canada and even New Zealand. But there is still no constitutional or legal right that an individual (or class) can enforce over intrusion of privacy in Australia.

After exhaustive consultations in 2008 and 2014, the Australian Law Reform Commission (ALRC) recommended a modest and carefully limited statutory tort – a right to dispute a serious breach of privacy in court. However, both major parties effectively rejected the ALRC recommendation.

No ‘legal standing’ in the US

Legal standing refers to the right to be a party to legal proceedings. As the tech giants that are most adept at gathering and using user data – Facebook, Google, Apple, Amazon – are based in the US, Australians generally do not have legal standing to bring action against them if they suspect a privacy violation. EU citizens, by contrast, have the benefit of the Judicial Redress Act 2015 (US) for some potential misuses of cloud-hosted data.

Poor policing of consent agreements

Consent agreements – such as the terms and conditions you agree to when you sign up for a service, such as Gmail or Messenger – waive rights that individuals might otherwise enjoy under privacy laws. In its response to the Cambridge Analytica debacle, Facebook claims that users consented to the use of their data.




Read more:
Consent and ethics in Facebook’s emotional manipulation study


But these broad user consent agreements are not policed strictly enough in Australia. It’s known as “bad consent” when protective features are absent from these agreements. By contrast, a “good consent” agreement should be simple, safe and precautionary by default. That means it should be clear about its terms and give users the ability to enforce them, should not be variable, and should allow users to revoke consent at any time.

New laws introduced by the EU – the General Data Protection Regulation – which come into effect on May 25, are an example of how countries can protect their citizens’ data offshore.

Major parties don’t want change

Privacy Commissioner Tim Pilgrim said today in The Guardian that the political exemption should be reconsidered. In the past, independents and minor party representatives have objected to the exemption, as well as the weakness of Australian privacy laws more generally. In 2001, the High Court said that there should be a right to sue for privacy breach.




Read more:
Why big data may be having a big effect on how our politics plays out


But both Liberal and Labor are often in tacit agreement to do nothing substantial about privacy rights. They have not taken up the debates around the collapse of IT security, nor the increase in abuse of the “consent” model, the dangers of so called “open data”, or the threats from artificial intelligence, Big Data, and metadata retention.

The ConversationOne might speculate that this is because they share a vested interest in making use of voter data for the purpose of campaigning and governing. It’s now time for a new discussion about the rules around privacy and politics in Australia – one in which the privacy interests of individuals are front and centre.

David Vaile, Teacher of cyberspace law, UNSW

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

New foreign interference laws will compound risks to whistleblowers and journalists


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Increasingly, the language of ‘national security’ is invoked to protect a government’s broader interests.
AAP/Mick Tsikas

Keiran Hardy, Griffith University

The Turnbull government has announced a crackdown on foreign interference in Australian politics and national security. Proposed laws include a ban on foreign political donations, new criminal offences, and a transparency register for those acting on behalf of foreign governments or organisations.

Prime Minister Malcolm Turnbull carefully emphasised that the proposals are not focused on China’s influence in Australia. But, as the Lowy Institute’s Euan Graham put it, there’s an “800-pound panda” in the room.

The proposed criminal offences will significantly expand the scope of existing laws against espionage and treason. This will make it easier to prosecute spies and other foreign nationals who seek undue influence over Australian business or politics.

However, the new laws pose risks to whistleblowers and journalists. They suggest the concept of “national security” is continually expanding.


Further reading: Ban on foreign political donations is both too broad and too narrow, and won’t fix our system


Espionage

The Criminal Code currently sets out an offence of espionage that is punishable by 25 years’ imprisonment.

The main offence applies where someone communicates or makes available information that concerns Australia’s security or defence. The person must intend to prejudice Australia’s security or defence, or advantage another country’s security or defence. Under the proposed changes, this offence will attract a maximum penalty of life imprisonment.

Where a person recklessly endangers Australia’s security or defence, this will be punishable by the current penalty.

The new espionage offences will apply to possessing or receiving information, in addition to communicating it. They will protect a broader range of information, including unclassified material.

Other new offences, punishable by 15 years’ imprisonment, will target preparation for espionage and the theft of trade secrets.

Foreign interference

Proposed offences for foreign interference will target conduct not ordinarily considered to be espionage or treason.

Currently, the federal offence of treason describes very rare and serious conduct, such as assassinating or capturing the Queen or prime minister.

These new offences will target covert, deceptive or undisclosed conduct that is directed, funded, supervised or undertaken on behalf of a foreign interest. The penalties will range between ten and 20 years’ imprisonment.

To constitute foreign interference, the conduct must be intended to:

  • serve the intelligence purposes of a foreign actor

  • harm Australia’s national security

  • influence the exercise or performance of a democratic or political right, or

  • influence a government or political process.

Other new offences will target the support or funding of foreign intelligence agencies. These will be similar to existing crimes for supporting or funding terrorist organisations.

Are the new offences needed?

The changes will make it easier to prosecute foreign nationals who intentionally interfere with Australia’s business, political or foreign policy interests.

Where such influence cannot strictly be described as impacting on security or defence, successful prosecution under the existing espionage or treason offences is very difficult.

The government’s other justifications are much weaker. The current espionage offences already extend beyond the communication of information to making, obtaining or copying sensitive records. The Crimes Act includes offences that are triggered when an Australian public official discloses official secrets or other information obtained in the course of their employment.

What are the risks?

The proposed offences will target some conduct that should clearly be a serious criminal offence, such as intentionally supporting a foreign intelligence agency.

However, the proposed laws go well beyond such clear cases to target a broad and vague range of conduct affecting Australian interests. This includes possessing unclassified information and any deceptive or undisclosed conduct that influences government processes.

Most importantly, the proposed changes pose risks to whistleblowers and Australian media organisations. These risks were compounded in 2014 by changes to national security legislation in response to the threat of foreign fighters.


Further reading: National security bills compound existing threats to media freedom


A journalist could face serious penalties under the proposed espionage offences for receiving information leaked by a government official or intelligence whistleblower, before they even decide to publish that information.

It seems the information need not even be classified for the penalties to apply, provided making the information available would benefit a foreign country or organisation.

The government needs to ensure that journalists publishing sensitive information in the public interest will not face criminal prosecution for espionage or other federal criminal offences. This should be done by drafting legal protections for journalists who act in a professional capacity in the public interest.

Assurances from Attorney-General George Brandis that journalists will not be prosecuted for doing their job are not enough.

The proposed laws should be viewed not only as a response to increasing Chinese influence in Australia, but also as symptomatic of a post-Snowden crackdown, in which all potentially embarrassing information about government is closely protected.

Similar debates about expanded espionage offences and press freedom have already taken place in the UK. These debates confirm that “national security” is no longer simply about physical threats like terrorism or traditional forms of spying.

The ConversationIncreasingly, the language of national security is invoked to protect a government’s broader interests – political, business and economic.

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.