Christian Porter quits cabinet, refusing to find out who gave him money for legal costs


AAP/Lukas Coch

Michelle Grattan, University of CanberraIndustry Minister Christian Porter has been forced to resign from cabinet after declining to seek and provide to Scott Morrison the names of the anonymous benefactors who have helped fund his legal costs.

Morrison has appointed energy minister Angus Taylor acting industry minister and sources say he is likely to continue in the dual role.

Porter’s resignation comes as Newspoll shows the government slightly reducing Labor’s two-party lead, from 54-46% to 53-47%. Labor’s primary vote fell 2 points to 38%; the Coalition rose a point to 37%.

Both leaders took hits in approval: Morrison is on a net negative of minus 4, while Anthony Albanese is on a net negative of minus 11. Morrison’s lead as better PM has fallen to 47-35%, from 50-34% three weeks ago – this is the closest since March last year.

In a three-page statement, Porter renewed his attack on the ABC and said a statement provided by the now-deceased woman who accused him of historical rape – which he denies – showed the allegation lacked credibility and was written by someone “very unwell”.

Porter is keeping the funds donated to a “blind trust”, the amount of which is unknown. He also says he will seek to run again in his Western Australian seat of Pearce, which is on a 5.2% margin.

Last week, Porter updated his parliamentary register of interests to reveal a “part contribution” to his legal bills for his (now settled) defamation case against the ABC from “a blind trust known as the Legal Services Trust”. Porter said he did not know the names of donors.

Morrison asked his department to advise whether the arrangement breached ministerial standards.

But Morrison indicated at a news conference on Sunday he and Porter had finalised his future ahead of the advice.

Morrison was clearly anxious to have it settled before his trip to the United States, so it would not be a distraction during what he hopes will be a time of positive news following last week’s announcement of the AUKUS security agreement.

Bad publicity around Porter has been a running sore for the government for much of the year.

The historical rape allegation surfaced publicly in February, when the ABC reported material about it had been sent to several politicians, including the prime minister. Porter was not named but later identified himself, declaring the alleged assault had never happened.

Initially, he hoped to retain his position as attorney-general, but this was politically untenable and he was moved to the industry job in a reshuffle.

With an outcry over the “blind trust” and an election approaching next year, Morrison could not afford another prolonged scandal around Porter. He indicated Porter’s future was in doubt when he said last week he was taking the matter very seriously.

Morrison said on Sunday that in their discussions, Porter had been unable to “practically provide further information because of the nature of those [trust] arrangements”.

That Porter couldn’t provide the information meant he could not conclusively rule out a perceived conflict of interest.

Morrison said Porter was upholding the ministerial standards by resigning.

Porter said in his statement that while he had no right of access to the trust’s funding or conduct, he had asked the trustee for an assurance, which he received, “that none of the contributors were lobbyists or prohibited foreign entities.

“This additional information was provided as part of my Ministerial disclosure,” he said.

He said no doubt the desire of some or many of the donors to remain anonymous was driven by wanting to avoid “trial by mob”.

Porter said he believed that he had provided the information required under the Members’ Register of Interests, and that the additional disclosures he provided under the Ministerial Standards were in accord with its additional requirements.

“However, after discussing the matter with the Prime Minister I accept that any uncertainty on this point provides a very unhelpful distraction for the Government in its work.”

He said to the extent the uncertainty might be resolved by seeking further information about donors’ identities, “this would require me to put pressure on the Trust to provide me with information to which I am not entitled.

“I am not prepared to seek to break the confidentiality of those people who contributed to my legal fees under what are well-known and regular legal structures, including the confidentiality attached to the Trust contribution,” Porter said.

He had explained he “could not assist any process that would ultimately allow people who have done nothing wrong to become targets of the social media mob.”

“Ultimately, I decided that if I have to make a choice between seeking to pressure the Trust to break individuals’ confidentiality in order to remain in Cabinet, or alternatively forego my Cabinet position, there is only one choice I could, in all conscience, make.”

In his renewed attack on the ABC, Porter said that “seemingly with great care and effort – [it] has reported only those parts of the information that it has in its possession which feeds into its narrative of guilt.

“I have recently been provided from a source outside the ABC with a copy of the only signed document that the person who made and subsequently withdrew the complaint ever made.

“Many parts of that 88-page document are such that any reasonable person would conclude that they show an allegation that lacks credibility; was based on repressed memory (which has been completely rejected by courts as unreliable and dangerous); which relied on diaries said to be drafted in 1990/91 but which were actually words composed in 2019; and, was written by someone who was, sadly, very unwell.”

Albanese said Porter needed to answer where the money had come from. He also said Morrison had not sacked Porter – Porter had resigned.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.

The plight of Afghan security contractors highlights the legal and moral risks of outsourcing war


Anna Powles, Massey UniversityBy first denying and then granting visas to more than 100 Afghan contractors who guarded its embassy in Kabul, Australia has shone a light on the murky world of the private security industry.

According to the lawyer and former army officer representing the security guards, his clients had yet to receive the humanitarian visas and the about-face was merely an attempt by Australian officials “to look like they have done their job when they sat on their hands for so long”.

The Australian case mirrors the British government’s policy reversal concerning 125 Afghan security guards at its Kabul embassy.

They, too, were initially informed they were ineligible for emergency evacuation due to being employed by Canadian private security firm GardaWorld, only for the decision to be overruled late last week.

In both cases, these Afghan contractors have fallen into the shady legal gap between the private security company that employed them locally and the governments that contracted their employers.

As one GardaWorld employee said when he was told his contract would be terminated:

No one asked whether we are safe or not. No one asked whether our lives are in danger or not.

Privatising and outsourcing war

Afghanistan, famously known as “the graveyard of empires”, has been a gravy train for the global private security industry for the past two decades, as the war was increasingly privatised and outsourced.

Under the Trump administration, private security companies with Pentagon contracts numbered nearly 6,000, costing US$2.3 billion (A$3.1 billion) in 2019. When the US military withdrawal began, these private contractors dropped to about 1,400 by July.




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Until now, however, private security firms were such a critical element of the war effort that their departure was considered a key factor in the collapse of the Afghan army.

The appeal of these private security contractors lies in their arms-length advantage — they are relatively disposable and carry little political cost. This allows the industry to operate opaquely, with little oversight and even less accountability.

In the case of the Australian embassy guards, it would appear their direct employers have done little to secure their safety. How, then, can these companies and the governments that employ them be held accountable?

Little binding protection

The Montreux Document on Private Military and Security Companies – which reflects inter-governmental consensus that international law applies to private security companies in war zones – requires private security companies “to respect and ensure the welfare of their personnel”. Unfortunately, this is not a binding agreement.

The International Code of Conduct for Private Security Service Providers (ICoCA) – known as “the code” — lays out the responsibilities of private security under international law. It requires signatory companies to:

[…]provide a safe and healthy working environment, recognising the possible inherent dangers and limitations presented by the local environment [and to] ensure that reasonable precautions are taken to protect relevant staff in high-risk or life-threatening operations.




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The Taliban may have access to the biometric data of civilians who helped the U.S. military


Australia is a signatory to the ICoCA, as are private security companies Gardaworld, Hart International Australia and Hart Security Limited, all of which operate in Afghanistan and have at various times been contracted by the Australian government.

But again, like the Montreux Document, the ICoC is non-binding. However, ICoC Executive Director Jamie Williamson has said:

The situation in Afghanistan is shining a spotlight on the duty of care clients of private security companies have towards local staff and their families […] We expect to see both our government and corporate members ensure the safety and well-being of all private security personnel working on government and other contracts, whatever their nationality.

Still no guarantee of safety

This duty of care now appears to have been extended to those guards who worked for the Australian and British governments in Afghanistan — albeit at the last minute. As one contractor told Australian media, he and his colleagues first applied for protection visas in 2012.

But their safety remains uncertain. The visas do not guarantee safe passage to Kabul’s international airport where evacuation efforts are chaotic. In the past weekend alone, 14 civilians were killed trying to flee the Taliban takeover.

There are also concerns about safe passage through Taliban checkpoints not being properly coordinated by US and NATO
allies, leaving dangerous alternative routes the only option.




Read more:
Where do Afghanistan’s refugees go?


Sheltering until they can safely travel to the airport is also fraught. As one guard explained:

Every day there is news that the Taliban will start a search for each house […] looking for people who have served the army and those who have served the foreign army.

Australia has made a legal and moral commitment to provide refuge to these people. But with the Taliban’s so-called red line of August 31 looming, the window to evacuate them and their families is closing.

And while the global private security companies may have shut up shop in Afghanistan for now, the consequences and human costs associated with outsourcing war linger on.The Conversation

Anna Powles, Senior Lecturer in Security Studies, Massey University

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

Doctors do not face a greater legal risk if they give AstraZeneca to younger Australians — here’s why


Simon Santi/AAP

Cameron Stewart, University of SydneyLast week, the federal government changed its recommendation for COVID-19 vaccines. The Pfizer vaccine is now the “preferred” jab for adults under 50.

Amid the political fallout and worries about what it means for Australia’s COVID recovery, doctors have expressed concern about their liability. Some said they would even stop giving the AstraZeneca jab until they were more certain of their position.




Read more:
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Are they at greater legal risk if they give AstraZeneca to younger Australians? The government insists they are not. This is correct — here’s why.

Proving fault

In Australia, medical liability is, for the most part, fault-based. This means patients who are injured by medicines, medical devices and medical interventions must prove the doctors who used them were to blame for any injury they suffered before any compensation will be paid.

Australian liability laws are state-based, but generally speaking, fault can only be proven when the doctor has acted outside of the professional standard of care in a way that is not supported widely in Australia by professional peers.

What is the standard of care?

The standard of care for diagnosis and treatment is effectively set by the medical profession. In cases — such as COVID vaccines — where the treatment is new and knowledge about the treatment is emerging, the standard of care is also developing.

Importantly, doctors are judged by measuring their behaviour against the standard of care at the time the treatment was given. This means that if, in 2020 a doctor administers a COVID vaccine in a way that was supported by their peers at that time, they will not be found to have breached the standard of care if, years later, other side effects become known.

Prime Minister Scott Morrison inspecting AstraZeneca production.
Last week the Morrison government changed its advice around the AstraZeneca vaccine.
David Caird/AAP

We should also be careful not to automatically equate the government’s advice concerning the AstraZeneca vaccine with what the standard of care should be at the individual level.

The government’s advice is concerned with the big picture and with risks across a population. Doctors have the task of treating individuals. So, the government’s advice should be considered by doctors when working out which vaccines to offer to patients, but there may well be situations where the AstraZeneca is the best option for individual adult patients under 50.

Giving advice and accepting risks

Doctors also have a duty to inform individual patients about material risks of the treatments they provide. Every intervention comes with a set of risks but only the material ones need to be disclosed.

Material risks include those the profession would usually notify patients of (objective material risks), as well as risks the individual patient may have a particular concern about (subjective material risks).

The classic example of this is the 1993 case of Rogers v Whitaker where a woman who was blind in one eye was considering cosmetic surgery on that eye. She was concerned about any risk (no matter how remote) of going blind in her “good eye”. Later, she became blind from a complication of her treatment, which was known but very rare. The doctor’s failure to inform her was considered a breach of the duty to inform — even though it was not a risk normally disclosed — because the risk was subjectively material to her.

Again, the doctor will always be judged by what the profession knew at the time regarding these risks. If a patient is told about the material risks of the treatment and decides to go ahead with the treatment, the doctor has satisfied their legal duty to advise and cannot be held liable for subsequent injuries.

What now for GPs and AstraZeneca?

As long as doctors consider the government advice, keep up with professional news about best practice and communicate material risks to patients, they face no greater liability for providing COVID vaccines than they do for any other treatment.

The reality is the risks of people being injured by vaccines, and of doctors being sued for vaccine-related injury, is incredibly low.

At the weekend, the Australian Medical Association also said if a patient makes an informed decision to receive the AstraZeneca vaccine, GPs are protected under professional indemnity insurance.

Of course, the reality of low risk may not match the fear practitioners experience. So, are there things we can do to reduce the anxiety practitioners feel regarding liability?




Read more:
Bad reactions to the COVID vaccine will be rare, but Australians deserve a proper compensation scheme


One obvious measure is to move to no-fault systems of compensation. Many countries including the United States and New Zealand have no-fault compensation schemes for vaccine-related injury. Putting such a scheme in place may very well help doctors get over the fear of being sued. It might also give patients confidence knowing that in an extremely rare case of injury, they will be covered.

This could be done either with a one-off scheme or by expanding the National Injury Insurance Scheme, which covers personal injuries from motor vehicle accidents.

Without such schemes, Australian patients will only have access to compensation for vaccine-related injury if they can prove it was caused by a failure to act according to medical standards of care or a failure to properly inform the patient of material risks.The Conversation

Cameron Stewart, Professor at Sydney Law School, University of Sydney

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

High Court rules Indigenous people cannot be deported as aliens, but the fight for legal recognition remains



Mick Tsikas/AAP

Kate Galloway, Griffith University and Melissa Castan, Monash University

The High Court made an important decision today about whether it is possible for Aboriginal Australians to be deported from the country if they are not citizens.

By a majority of 4:3, the court decided that

Aboriginal Australians … are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution.

The outcome of the decision is clear for one of the men, Brendan Thoms, who is a registered native title holder. As such, it is beyond the power of the Commonwealth to deport him.

However, the majority was divided on the question of whether the other plaintiff, Daniel Love, was an Aboriginal person as a question of fact, and so did not make a finding about whether or not he was an “alien”.

This case is significant. In some regards, it is about questions of deportation and immigration. But, crucially, it is a constitutional law case grappling with the deeper question of whether Aboriginal and Torres Strait Islander Australians can be aliens and therefore excluded from the Australian state.

Although the decision applies to only a small number of people – Indigenous Australians who are not citizens – it has a broader impact in recognising the special status of Indigenous Australians in Australia.

Background of the case

The case involved two Aboriginal men born overseas who were ordered to be deported from Australia because they each had a criminal conviction. Both men appealed to the High Court and their cases were heard together late last year.

Love, a Kamileroi man, was born in Papua New Guinea to an Aboriginal father and PNG mother. He moved to Australia in 1984 when he was five years old, but never applied for citizenship. After serving a 12-month sentence for assault occasioning bodily harm, his permanent residency visa was cancelled by the government. He was in detention but was released in 2018 pending the High Court’s decision.




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Can Indigenous Australians be deported as ‘aliens’? A High Court decision will show us the strength of modern colonial power


Thoms, a Gunggari man and declared native title holder, was born in New Zealand to an Aboriginal mother and New Zealand father. He has lived in Australia since 1994. Like Love, his visa was cancelled after he served part of an 18-month sentence for a domestic violence assault. He has remained in immigration detention pending the court’s decision.

The Commonwealth has maintained that since the men are not citizens of Australia, the minister for Home Affairs has the power to cancel their visas and deport them. Under Section 51 (xix) of the Constitution, the Commonwealth has the power to make laws relating to “naturalisation and aliens”.

However, lawyers for the two men argued that although they are not citizens, they cannot be aliens – and therefore cannot be deported.

As a question of law, an alien is a person who owes allegiance to another country because they were born there. For people recognised as Aboriginal Australians, with longstanding connections to community, culture and traditional land, this implies they do not belong in their own country.

As Love’s lawyers argued to the court,

as a member of the Aboriginal race of Australia and the child of an Australian citizen … [he] is not an alien.

This argument suggests a new category of person described as “non-citizen non-aliens”. And under this special category, the lawyers argued, the minister would not have the constitutional right to deport them.




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The conflict in this case arises because it seems contradictory for Aboriginal people to be thought of as strangers in their own land. This is especially so for registered native title holders, such as Thoms. As a native title holder, the law recognises his connection to the land.

The basis of the men’s argument, therefore, rests on the connection of Aboriginal and Torres Strait Islander people to their country and the obvious implication of belonging.

Impact for Indigenous Australians

The court’s decision is good news for Indigenous Australians, as it expresses a new form of relationship between Indigenous people and the state – that of a “non-citizen, non-alien”.

The category will protect Aboriginal and Torres Strait Islander Australians born overseas, ensuring they will not lose their right to traditional lands because of an accident of birth. The decision upholds the law’s recognition of the importance of Indigenous Australians’ connection to, and rights over, their lands.

But it does mean that a person must be able to prove their Aboriginality before the court as a question of fact.




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Because Thoms is a native title holder, his circumstances were clear. The majority was divided, however, on Love’s status as an Aboriginal person, as he is not a native title holder. And there was ultimately no finding as to whether he qualifies as an alien under the law.

The case also highlights the ongoing challenges for Indigenous Australians in their fight for proper legal recognition in relations with the state.

The minister ignored the implications of these men’s Aboriginality in seeking to deport them. And the Commonwealth argued before the High Court that these men did not belong in Australia – that they were aliens. Further, three of the seven judges agreed with that argument and decided there was no special category for “non-citizen, non-aliens”.

The fact this case was brought at all indicates that the relationship between Indigenous Australians and the state remains unresolved.

Despite the majority decision, it seems First Nations peoples’ close connection with the land is still not enough on its own to guarantee their ongoing rights to be part of Australia, and to retain their ties to community and country.

This decision will be recognised as a milestone for Indigenous Australians. But the closeness of the decision and the qualified finding in relation to Love’s case means this question of belonging for non-citizen Indigenous people will likely be raised again.The Conversation

Kate Galloway, Associate Professor of Law, Griffith University and Melissa Castan, Associate Professor, Law Faculty, Monash University

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

What employers need to know: the legal risk of asking staff to work in smokey air


Elizabeth Shi, RMIT University

Amid thick bushfire smoke in cities including Canberra and Melbourne, employers need to consider their legal obligations.

Some have directed their workers not to turn up in order to avoid to occupational health and safety risks. Among them is the Commonwealth department of home affairs which last week asked most of its staff to stay away from its Canberra headquarters for 48 hours.

Other employers want to know where they stand.



Each state and territory has its own occupational health and safety laws.
However most line up with the so-called Model Act, a federal act of parliament intended to harmonise state laws.

Under section 17 it imposes on employers a duty to, so far as is reasonably practicable, ensure health and safety by eliminating or minimising risks.

This employer’s duty applies not only to its employees, but also to other types of workers including independent contractors.

Meaning of ‘reasonably practical”

Under the section 18 of the Model Act, “reasonably practicable” means

that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters

By themselves, these words aren’t much of a guide, so the Act includes examples of “relevant matters”, among them:

  • the likelihood of a hazard or risk occurring

  • the degree of harm that might result

  • what the employer knows or ought reasonably know about the hazard or risk, and ways of eliminating or minimising hazard or risk

  • the availability and suitability of ways to eliminate or reduce hazard or risk

  • the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk

Meaning of ‘likelihood’

Employers should make themselves aware of the risk of an air quality hazard.
This can be achieved by checking the most up to date air quality index in the location on an environment protection authority website:

NSW

Victoria

Queensland

South Australia

Western Australia

Tasmania

Northern Territory

Australian Capital Territory

Workers who work outdoors are more likely to be subject to harmful effects of bushfire smoke than indoor workers.

They are more likely to experience irritation to their airways, nose and eyes.

They might also experience low visibility which might make their work more dangerous.

The machines they operate could also be impacted by the smoke and dust in a way which would make operating them more dangerous.

Special measures should be taken to protect workers who work outdoors, such as providing them with face masks or rescheduling their work.

Smoke emissions from the Australian bushfires from 1 December 2019 to 4 January 2020.

Meaning of ‘degree of harm’

Asthma suffers might be at greater risk.

It is certainly arguable the likelihood of harm for indoor workers is much lower, especially if the air quality in their workplace is the same or even better than the air quality in their homes.

Employers should have up-to-date information about the health of their workers, especially those workers who have pre-existing conditions that might predispose them to harm from smoke.

Among these would be workers who have asthma or other respiratory disorders.

Special steps should be taken to protect them, taking into account their pre-existing conditions.

Meaning of ‘reasonably ought to know’

Employers should be checking up-to-date information on an environment protection authority website and on the website of Safe Work Australia which is the Commonwealth regulator for occupational health and safety laws.

It’s very likely law enforcers will presume the information on these websites constitute information the employer ought to have known in determining the appropriate action to take.

For example, it would be difficult for an employer to argue they didn’t know P2 rated face masks should be provided to workers when the Safe Work Australia website specifically mentions them as an appropriate way of eliminating or reducing air quality hazards.

Meaning of ‘availability of ways to reduce risk’

Safe Work Australia directs employers to have in place measures to manage the risks to health and safety of working outdoors when air quality is reduced, including:

  • working indoors (where possible)

  • rescheduling outdoor work until conditions improve

  • ensuring buildings and equipment are functioning correctly and have not been affected by dust or debris

  • cleaning dust and debris off outdoor surfaces

  • providing personal protective equipment such as eye protection and correctly fitted P2-rated face masks.

Meaning of ‘cost of minimising hazard’

The cost of elimination or minimising hazard will be higher for some measures than others.

For example, it might cost more to direct workers to stay home than to provide face masks.




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These costs need to be weighed up against the likelihood and degree of potential harm.

If the likelihood and degree of harm is high, it’s unlikely law enforcers will be particularly sympathetic to arguments about cost.The Conversation

Elizabeth Shi, Senior Lecturer, Graduate School of Business and Law, RMIT University

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

Government advertising may be legal, but it’s corrupting our electoral process


Joo-Cheong Tham, University of Melbourne

The Coalition government’s use of taxpayer money for political advertising – as much as A$136 million since January, according to Labor figures – is far from an aberration in Australia. It is part of a sordid history in which public resources have routinely been abused for electoral advantage.

For example, the Coalition governments of Tony Abbott and Malcolm Turnbull spent at least A$84.5 million on four major advertising campaigns to promote their policies and initiatives with voters. The ALP governments of Kevin Rudd and Julia Gillard spent A$20 million on advertising to promote the Gonski school funding changes and another A$70 million on a carbon tax campaign. Going further back, the Coalition government under John Howard spent A$100 million on its WorkChoices and GST campaigns.




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This is also a history in which hypocrisy is not hard to find.

When in opposition, Rudd condemned partisan government advertising as “a cancer on our democracy”. His government, however, exempted its A$38 million ad campaign on the mining super profits tax from the government guidelines put in place two years earlier.

In 2010, while an opposition MP, Scott Morrison decried such spending as “outrageous”. In 2019, his government may be presiding over the most expensive pre-election government advertising blitz in recent history.

Few restrictions on government advertising

All of this is perfectly legal.

The High Court in Combet v Commonwealth made clear that legislation authorising government spending (appropriation statutes) imposes virtually no legal control over spending for government advertising, because of its broad wording.

In the absence of effective statutory regulations, there are government guidelines that prohibit overtly partisan advertising with government funds, such as “negative” ads and advertising that mentions party slogans and names of political parties, candidates, ministers and parliamentarians.

These guidelines nevertheless provide ample room for promotion of government policies under the guise of information campaigns – what Justice Michael McHugh in Combet described as “feelgood” advertisements. They permit advertising campaigns such as the Coalition government’s “Building a better tax system for hardworking Australians” (which essentially promotes the government’s tax cuts) and “Small business, big future” (which burnishes its “small business” credentials).

The government advertising campaign spruiking its tax reform measures.

Crucially, the guidelines fail to address the proximity of such taxpayer-funded advertising campaigns to federal elections. They fail to recognise what is obvious – the closer we get to the elections, the stronger the governing party’s impulse to seek re-election, the greater the likelihood that “information” campaigns become the vehicle for reinforcing positive images of the incumbent party.

This risk is clearly recognised by the caretaker conventions, which mandate that once the “caretaker” period begins with the dissolution of the House of Representatives:

…campaigns that highlight the role of particular Ministers or address issues that are a matter of contention between the parties are normally discontinued, to avoid the use of Commonwealth resources in a manner to advantage a particular party

The conventions further state:

Agencies should avoid active distribution of material during the caretaker period if it promotes Government policies or emphasises the achievements of the Government or a Minister

The problem with these conventions, however, is that they kick in too late. By the time the House of Representatives is dissolved prior to an election, the major parties’ campaigns have usually been in high gear for months.




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A form of institutional corruption

A pseudo-notion of fairness tends to operate in the minds of incumbent political parties when it comes to taxpayer-funded advertising.

When she was prime minister, Gillard defended her use of government advertising by pointing that the Howard government had spent more. And now, the Morrison government has sought to deflect criticisms of its current campaign by drawing attention to ALP’s use of government advertising when it was last in power.

Our children are taught to be better than this – two wrongs do not make a right.

Indeed, government advertising for electioneering is a form of corruption. Corruption can be understood as the use of power for improper gain. It includes individual corruption where the improper gain is personal (for instance, bribery) but also what philosopher, Dennis Thompson, has described as institutional corruption, where the use of power results in a political gain.

Government advertising to reinforce positive impressions of the incumbent party is a form of institutional corruption – it is the use of public funds for the illegitimate purpose of electioneering. Its illegitimacy stems from the fact that it undermines the democratic ideal of fair elections by providing the incumbent party with an undue advantage.




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It is an instance of what the High Court in McCloy v NSW considered “war-chest” corruption – a form of corruption that arises when “the power of money … pose(s) a threat to the electoral process itself”.

A longer government advertising ban?

I propose a ban on federal government advertising in the period leading up to federal elections.

Such bans are already in place in NSW, which prohibits government advertising during roughly two months before state elections, and the ACT, which bans government advertising 37 days before territory elections. To take into account the longer campaign period at the federal level, a federal ban should operate for at least three months before each federal election.

The absence of fixed terms in the federal parliament is not a barrier to adopting such a ban. With an average of two and a half years between federal elections, a three-month ban of sorts could take effect from two years and three months after the previous election until polling day of the next election.

By dealing with government advertising for electioneering, this ban will improve the integrity of federal elections.The Conversation

Joo-Cheong Tham, Professor, Melbourne Law School, University of Melbourne

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

From robo calls to spam texts: annoying campaign tricks that are legal



File 20190116 152968 yjzfxg.jpg?ixlib=rb 1.1
Politicians are allowed to spam you with campaign texts.
from shutterstock.com

Graeme Orr, The University of Queensland

“Make Australia Great.” So began several million text messages, sent last week from Clive Palmer’s United Australia Party. Palmer’s bumptious campaign techniques actually predated those of Donald Trump.

But now he is aping Trump’s slogans and nationalism, if with a less reactionary, more third-way ethos. The chances of Palmer rising again, like the proverbial political soufflé, are remote. But what of his campaign methods?

Mass texting (I’ll dub it “mexting”) is nothing new in electoral politics. Fifteen years ago it proved controversial, during a local election on the Gold Coast. Late night texts were sent to target young voters while they were out on the town.

The message – which came from nightclubs, urging voters to keeping licensed venues open all hours – was lost in a backlash. In those days people paid not just per text they sent, but often to receive them as well.

Mobiles have since become more ubiquitous, intimate fixtures, and we no longer pay to receive messages, nor do many of us pay for individual texts.

Palmer’s party admits to receiving more than 3,000 complaints (which he claims were robo-calls by trade unions), and he says there’s more to come. But why risk alienating the very people you are reaching out to? And how, if at all, does the law regulate such in-your-face campaign techniques?

The law on ‘mexting’?

For once, the legal how is easier than the political why. The national Spam Act of 2003 regulates unsolicited electronic messages via telephone and email. But only commercial messages, about goods and services or investments, are prohibited.

Social and political advocacy is not treated as suspect. On the contrary, it is encouraged. The Privacy Act, in particular, lets MPs and parties collect data on citizens’ views, to better personalise their messages.

Exempting politicians from privacy laws is based on the philosophy that freedom of political communication is vital to Australia’s democratic process.




Read more:
Australia should strengthen its privacy laws and remove exemptions for politicians


Even when government agencies, charities or political parties offer services or solicit donations or membership, they are given a free hand. All they have to do is include a link about who authorised the message.

The licence to advocate, provided it is not done anonymously, is an old one under electoral law in English-speaking democracies. The obligation to “tag” messages enables the speaker to be traced and helps us discount the source of political opinions.




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That is merely a rule about form, not manner or content. When it comes to manner, there are laws against offensive messages via mass media – whether broadcast or sent by post. (Good luck enforcing that rule in the back passages of the internet.)

There are also, famously, rules against discriminatory “hate” speech.

When it comes to content, you need to avoid defaming people. But there is no general requirement of truth, in the media or in politics, outside rules against misleading parliament, and a limited offence of materially false, paid, election-time ads in South Australia.

At the 2016 general election, the Labor Party dismayed the government and many observers, by mexting as part of its so-called “Mediscare” campaign. The texts looked like they came from Medicare itself. The trick led to a tightening of rules and a new offence of “impersonating” a Commonwealth body.

Other in-your-face campaign methods

Mexting sits in a long line of in-your-face campaign methods. The century old tradition of handing out flyers lives on, as letterboxes in marginal electorates will surely testify later this year.

Another was the “soap box” speech, trundled around shopping precincts via a loudspeaker on the back of a ute. In the middle of last century it was so typical that, as a young candidate, Gough Whitlam is said to have campaigned this way via a boat, to reach outlying suburbs not well serviced by roads.

Sound trucks show the ‘soap box’ method of campaigning is still used in Japan.
Wikimedia Commons

It is all but dead today in Australia, but lives on in the “sound trucks” of Japan.

More recent innovations are the ubiquitous “direct-mail” – a personalised if expensive variant of letterbox stuffing. Plus the “robo-call”, where a pre-recorded message is automatically dialled to thousands of telephones. I well recall picking up my landline, over dinner in 2007, to hear John Howard greet me. He happily ploughed on despite my unflattering response.

As for how, practically, a campaign assembles thousands of valid mobile numbers… well, Palmer’s party says it has no list. It may have hired a marketing firm to send out the texts. Commercial entities, notoriously, collect and trade files of phone numbers, postal and email addresses, and more.

Still, why? A cynic might say that for Palmer, any notoriety is good notoriety. His gambit has people talking about him again. Minor parties expect to alienate people: their goal is to attract a few percent of the vote.

Why major parties employ such tactics is another matter. They have to build broader coalitions of voters. But there is a cost-benefit analysis at work. Electronic messaging can reach swathes of people more cheaply than broadcast advertising, which in any event lacks the reach it once had. And negative advertising, like Mediscare, tends to work.

As it is, modern parties lack mass memberships and cannot rely primarily on organic influence or door-knocking by activists.

So while spamming, in text or audio, seems perverse – and is unlikely to be as effective as targeted or viral messaging on social media, or community-based campaigning – it won’t disappear.

For my part, I won’t grumble about a text from Mr Palmer popping up in my pocket. It beats his huge yellow billboards in terms of a blight on our public spaces.The Conversation

Graeme Orr, Professor of Law, The University of Queensland

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

Peter Dutton’s decisions on the au pairs are legal – but there are other considerations



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During his time as Minister for Immigration and Border Protection, Peter Dutton granted tourist visas to four foreign au pairs who were denied entry at the Australian border and detained, awaiting deportation.
AAP/Lukas Coch

Sangeetha Pillai, UNSW

Minister for Home Affairs Peter Dutton has come under scrutiny for exercising his personal powers during his time as Minister for Immigration and Border Protection to grant tourist visas to four foreign au pairs who were denied entry at the Australian border and detained, awaiting deportation.

Dutton made the decision to grant these visas at short notice and, in at least some cases, contrary to the advice of senior Border Force officials. Here I explain the scope of the minister’s legal power to grant visas in such instances, and the issues at play.




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Did Dutton have legal power to grant the visas?

In a nutshell, yes. Under section 195A of the Migration Act, the Minister for Immigration and Border Protection has the power to grant a visa to a person in detention if “the minister thinks that it is in the public interest to do so”. The minister has no obligation to grant a visa in this manner, but may do so at his or her discretion. A decision to intervene may only be made by the minister personally. This means the minister cannot delegate the power under section 195A to other Border Force personnel, although Border Force officials may provide advice and briefing information.

The minister’s power under section 195A is extremely broad. While the requirement that the power must be exercised in the “public interest” appears to impose some constraint on the minister, this is largely illusory. Courts have said that in migration matters, “public interest” is largely a matter of ministerial discretion. Section 195A drives this home by making it clear that it is up to the minister to decide whether granting a visa would be in the public interest.

Whenever the minister exercises the power under section 195, he or she must supply each House of Parliament with a statement that sets out the reasons for granting the visa. This includes the reasons for thinking that the grant is in the public interest.

The purpose of this is for transparency only: parliament has no power to overturn the minister’s decision. The transparency that can be achieved in this manner is limited by the fact that, to secure the privacy of individuals who are granted visas, identifying information must be excluded when a statement is laid before parliament. Visa decisions, including decisions under section 195A, are also excluded from administrative review.

Documents obtained via Freedom of Information request reveal that Dutton’s stated reasons for thinking that one of the visa grants was in the public interest were:

In the circumstances, I have decided that as a discretionary and humanitarian act to an individual with ongoing needs, it is in the interests of Australia as a humane and generous society to grant this person a Tourist visa.

If Dutton acted within the law, what’s the controversy?

There are two broad reasons why Dutton’s decisions to grant the au pair visas are controversial, despite falling within the scope of his ministerial power.

The first is that the breadth of ministerial discretion granted to the Minister for Immigration and Border Protection under the Migration Act is itself a subject of controversy. A 2017 Liberty Victoria report reveals that the minister for immigration has 47 personal national or public interest powers – many more than any other minister. Many of these powers – including the power in section 195A – are “non-delegable, non-compellable and non-reviewable”.

In 2008, the then immigration minister Chris Evans expressed discomfort with the scope of his own power:

In a general sense I have formed the view that I have too much power. The [Migration Act] is unlike any Act I have seen in terms of the power given to the Minister to make decisions about individual cases. I am uncomfortable with that not just because of a concern about playing God but also because of the lack of transparency and accountability for those ministerial decisions, the lack in some cases of any appeal rights against those decisions and the fact that what I thought was to be a power that was to be used in rare cases has become very much the norm.




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The second reason is that Dutton’s decision to intervene swiftly to grant visas to the au pairs on public interest grounds contrasts with the manner in which other migration-related decisions have been made. For example, the department has denied medical transfers to Australia to numerous asylum seekers detained offshore, including children at risk of death.

Recent reports state that an Afghan interpreter who claims his life is in danger after helping Australian troops has been denied a protection visa, and requests to meet with Dutton have gone unanswered. Departmental statistics indicate that, historically speaking, ministerial intervention to grant a tourist visa has been very rare.

Ultimately, the legal framework provided by the Migration Act allows for these variances. However Dutton, like all Ministers, is accountable to the parliament under the principle of responsible government. The Senate Committee on Legal and Constitutional Affairs is currently holding an inquiry into the appropriateness of Dutton’s decision to grant visas to two of the au pairs. It is due to report by September 11.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.

We’re drafting a legal guide to war in space. Hopefully we’ll never need to use it



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Nothing to stop high energy weapons being deployed in orbit around Earth.
Marc Ward/Shutterstock

Dale Stephens, University of Adelaide and Duncan Blake, University of Adelaide

A war in outer space sounds like the stuff of science fiction but it is something we need to consider.

Its impact on everybody on Earth and its implications for future human space exploration would be devastating.

Right now, there are laws that are relevant to the prospect of war in space, but currently it is unclear exactly how these might be applied.


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We and our colleagues from around the world – including experts from Australia, Canada, the United States, Russia and China – are undertaking a multi-year project to provide a definitive guide on how law applies to military uses of outer space.

The aim is to develop a Manual on International Law Applicable to Military uses of Outer Space (MILAMOS) that covers times of tension and outright hostility.

The ultimate goal is to help build transparency and confidence between space-faring states.

This should reduce the possibility of a war in space, or if it does happen, reduce the impact on the space infrastructure that we have all come to rely on so heavily.

The satellites we rely on

We rely on GPS signals for many things, including navigation, communication, banking, agriculture, travel and the internet itself. It’s estimated that 6-7% of GDP in Western countries depends on satellite navigation.

Communications satellites are applied not just for direct broadcast television, but also to enable many terrestrial networks. In remote areas of the world, they may be the only means of communication.

In the near future, communications satellites could provide the whole world with broadband internet.

Satellites help us get weather forecasts and improve agricultural production. They also help us to plan disaster relief, find and mine natural resources, monitor the health of the environment and many other applications.

‘Expect’ war in space

In the military context too, satellites have become essential. In June this year, US Secretary of the Air Force Heather Wilson said a future war in space is likely and the US is investing heavily in maintaining its military dominance in space. She commented:

We must expect that war, of any kind, will extend into space in any future conflict, and we have to change the way we think and prepare for that eventuality.

The first Gulf War in 1991 has often been called the first space war, though it wasn’t actually fought in outer space. Rather, the US and coalition forces relied heavily on GPS and other satellite technology to conduct that conflict.

Since then, space-based assets have enabled even greater capability for land, sea and air forces.

Given the dual use of many satellites, an armed conflict in space could be catastrophic to modern life.

Treaty on some weapons in space

There are only five global treaties specific to space. Chief among them is the 1967 Outer Space Treaty, but only one of its provisions (Article IV) directly deals with military activity – it prohibits the placement of weapons of mass destruction in space.

Other means and methods of destroying or interfering with a satellite are not prohibited, although other areas of law, like the Laws of Armed Conflict, regulate their use.

This includes things such as anti-satellite missiles, directed energy weapons (including lasers), electronic warfare, cyber warfare and dual-use technology, such as on-orbit servicing (“mechanic”) satellites.

A combined effort

The MILAMOS project is led by three universities: Adelaide here in Australia, McGill in Canada, and Exeter in the UK. It received some funding from the Australian and Canadian governments, as well as from private donors.

It relies on expertise from the International Committee of the Red Cross, the Union of Concerned Scientists and from the major space-faring states, principally the US and Russia, but also China and other countries.

They participate in a strictly personal (rather than representative) capacity to provide an authentic account of what the law is, not to negotiate what states would like the law to be.

Even so, reflecting a true consensus position on the law, in spite of the strongly held personal positions of individual experts, can be challenging. But that is what the project aims to achieve in nine workshops over three years.

So far meetings have been held in Montreal, Adelaide, New Delhi and Colorado Springs in the US.

Mind the legal gap

The alternate is for states to formally negotiate new international instruments to clarify or extend the law. Unfortunately, recent attempts to do so have not met with great success. This creates a legal gap that this manual seeks to fill.


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In this regard, it is similar to other manuals drafted in recent years on the law applicable to warfare in other domains: maritime (San Remo Manual), air and missile (Harvard Manual) and cyber (Tallinn Manual).

Even though these manuals are not formally endorsed by states, they are an essential reference for those who work in the field. This includes military practitioners, government lawyers and policy advisors, the media, public advocacy groups and other non-government organisations.

The ConversationFinal publication of the manual is expected in 2020. Paradoxically, the MILAMOS contributors earnestly hope that the manual will only ever remain on the shelf and never be used.

Dale Stephens, Professor of Law, University of Adelaide and Duncan Blake, PhD candidate, law and military uses of outer space, University of Adelaide

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

Challenges persist for multiple legal actions regarding MH17



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Reuters/Michael Kooren

Amy Maguire, University of Newcastle

Multiple parallel actions are ongoing with the aim of achieving truth and justice for the 298 passengers and crew of Malaysian Airlines flight MH17. The flight was shot down over Ukraine on July 17, 2014. The Conversation

An investigative team, led by the Dutch aviation authority and endorsed by the Australian government, concluded that the aircraft was shot down by a BUK missile. More than 100 individuals were identified in the 2016 report as linked to the incident. The investigation is ongoing.

Australia’s foreign minister, Julie Bishop, advocated for a war crimes tribunal to apportion blame for the incident. However, this proposal was vetoed by Russia in the UN Security Council.

This week, focus has turned to an action lodged in the European Court of Human Rights by lawyer Jerry Skinner on behalf of 33 relatives of MH17 victims. Skinner claims that the application has reached the stage of “ready for judicial determination”.

As reported last year, each applicant is seeking A$10 million in compensation from Russia. The claim is that Russia is responsible for violating the right to life of those killed due to its alleged supply of the missile that was launched from Ukraine, bringing down the aircraft.

However, the case lodged by Skinner is not yet listed in the court’s database. It is unclear how far the application has progressed but it certainly faces a range of major obstacles. The status of “ready for judicial determination” does not appear to be an official stage of proceedings in the court.

The European Court of Human Rights

The European Court of Human Rights was established in 1959 and sits in Strasbourg. It has jurisdiction to hear complaints from individuals and countries, alleging violations by countries that are party to the European Convention on Human Rights.

The court has delivered more than 10,000 judgments, which are formally binding on the countries subject to them. It receives more than 50,000 applications each year.

The application from Ayler and others is not the first to be lodged in the court in relation to Flight MH17. The case of Ioppa v Ukraine was lodged with the court in 2016.

The four applicants in that case are family members of three of the passengers killed on board Flight MH17. They have complained against Ukraine, rather than Russia. Specifically, they argue Ukraine violated their relatives’ right to life by failing to close the airspace above the military conflict zone that was active in eastern Ukraine in 2014.

The applicants allege that Ukrainian authorities intentionally failed to close the airspace despite their knowledge of the dangers posed to civilians travelling over Ukraine in passenger aircraft.

The application is currently noted as a “communicated case”, meaning it is awaiting judgment. The court has asked the applicants to identify what they have done to exhaust any available domestic legal remedies before applying to the court – particularly any legal avenues available in Ukraine.

The court has not yet published a preliminary finding on the admissibility of the case. This is the necessary first step before notice will be given to Ukraine to respond to the application. The case is certainly a long way from any potential judgment by a chamber of the court.

The Council of Europe

The European Court of Human Rights is not a creature of the European Union, but rather of the Council of Europe. The Council of Europe is a human rights organisation of 47 members, 28 of which are also EU members. All Council of Europe members have signed the European Convention on Human Rights.

The Council of Europe seeks to promote goals central to the international human rights framework, including freedom of expression and of the press, minority rights, and the abolition of the death penalty.

As a Council of Europe member, Ukraine is subject to judgement by the European Court of Human Rights. The applicants in Ioppa v Ukraine are all nationals of Germany, another member. Other Council of Europe members central to the MH17 situation are the Netherlands – because the flight originated at Amsterdam’s Schiphol airport – and Russia.

Should the European Court of Human Rights find Ukraine liable for a breach of the convention, Ukraine will be bound by that judgment. The committee of ministers of the Council of Europe monitor the execution of judgments by countries subject to them, including compliance with any orders to pay damages to complainants.

However, the European Court of Human Rights and the Council of Europe both lack enforcement capacity within the domestic jurisdiction of members, and would rely on diplomatic pressure to compel compliance with a judgment. Such pressure may be more or less effective depending on the status, power and political stance of a given member.

Prospects of success

Skinner has called on Australia to support the Ayler application. Bishop has responded that such litigation is a private matter for the families involved and those they are taking action against.

Bishop’s position is that Australia’s role is to support the ongoing investigation into the causes of the incident and then to pursue a justice mechanism with other countries.

It is important to note that Australia has no standing to join any action before the European Court of Human Rights, as it is not a member of the Council of Europe. However, Skinner argues Australia could exert diplomatic and political pressure to support the action.

Unfortunately for the families engaged in the European Court of Human Rights applications, litigation before that court appears to be a very indirect and unreliable route to gain compensation for the loss of their loved ones.

In the case against Ukraine, beyond the as-yet-uncrossed jurisdictional barriers, it may be necessary to prove that Ukrainian authorities knew of a direct threat to those on board MH17. This is a much more difficult standard to prove than a general awareness of threat to any civilian aircraft.

In action against Russia, setting aside the considerable jurisdictional issues and matters of proof, there is a major added barrier to satisfaction for the applicants. Russia has passed a law permitting it to overrule the decisions of international courts.

The Russian Constitutional Court subsequently ruled that Russia is permitted to overrule international judicial decisions where these would conflict with the Russian Constitution.

Russia disputes the preliminary findings of the ongoing MH17 investigation and rejects suggestions of its responsibility for the atrocity. This suggests that Russia would not accept responsibility for any finding of human rights violations by the European Court of Human Rights.

Beyond the human rights context, yet another action has been launched in the International Court of Justice. In that application, Ukraine asks the International Court of Justice to find Russia responsible for the MH17 disaster and order reparations.

From an international law perspective, the stakes of such an action are higher for Russia than human rights litigation launched by victims’ families. However, Russia’s response is likely to be the same. While the International Court of Justice has progressed the case beyond the initial stage, a finding against Russia may well be disputed and any orders ignored.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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