There’s no clear need for Peter Dutton’s new bill excluding citizens from Australia


Sangeetha Pillai, UNSW

Yesterday, the government introduced a bill into Parliament that, if passed, would allow the home affairs minister Peter Dutton to temporarily exclude some Australian citizens – including children – from returning to Australia.

The bill is aimed at mitigating threats posed by foreign fighters coming back to Australia from conflicts in Syria and Iraq. It was first put before Parliament in February, and has now been reintroduced with some amendments.




Read more:
Why is it so difficult to prosecute returning fighters?


The bill draws on similar legislation in the UK and, if passed, would add to an arsenal of around 75 pieces of anti-terrorism legislation currently operating in Australia.

National security laws must continue to adapt to changing circumstances. But the government has not made it clear how the bill would fill an identified gap in Australia’s already extensive national security regime.

How would the bill work?

If passed, the bill will allow the minister to issue a Temporary Exclusion Order (TEO) preventing an Australian citizen who is overseas from re-entering Australia. These exclusion orders aren’t designed to exclude citizens from Australia forever, but rather to provide a system that manages their return.

A TEO can be imposed on a citizen outside Australia if they are at least 14 years old, and:

  • the minister reasonably suspects that issuing the TEO would substantially help prevent terrorism-related acts, or

  • ASIO has assessed the person to be a direct or indirect risk to security, for reasons related to political violence. ASIO doesn’t need to be satisfied to any standard of proof when making this assessment.

But neither of these criteria actually requires a TEO candidate to have engaged in any wrongdoing.

A person may not enter Australia while a TEO is in force against them. If they do, they can face up to two years behind bars. A TEO may also require the person to surrender their Australian passport.

Each TEO can be issued for a maximum of two years, but a person may have multiple TEOs issued against them. This means the actual period of exclusion from Australia can be much longer.

So how does a return to Australia work?

The return of citizens with TEOs against them is managed through “return permits”. This is designed to allow the government to monitor and control foreign fighters’ entry and presence in Australia. A return permit must be issued if the person applies for one, or if a foreign country moves to deport them to Australia.




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A return permit may prescribe various conditions. Significantly, it doesn’t guarantee an immediate right to return to Australia – a person may be prohibited from entering Australia for up to 12 months after the permit is issued.

Once in Australia, a range of post-entry conditions may also be imposed. These can include passport surrender, and requirements to report changes to residence or employment, contact with particular individuals and technology use.

Breaching the conditions of a return permit is an offence, punishable by up to two years in prison.

Are the proposed laws constitutional and compatible with international law?

The right to return to one’s country is commonly regarded as a core aspect of citizenship. And some experts have argued that a citizen’s right to return home is constitutionally protected in Australia.

But the High Court has never ruled on the question of whether a constitutional right of this nature exists, so it’s impossible to say for certain whether the bill, if passed, would be unconstitutional. Still, it’s likely to face constitutional challenge.

In any case, international law protects an individual’s right to voluntarily return to their country of citizenship. The government acknowledges that TEOs restrict a person’s capacity to do this, but says the bill is justified because it’s “reasonable, necessary and proportionate”. This, however, isn’t clear.

Does the bill contain adequate safeguards?

In April, when reviewing the original bill, the Parliamentary Joint Committee on Intelligence and Security recommended 18 changes, aimed at improving safeguards.

But the new bill only took on seven changes in full, including requiring the minister to consider specific criteria when imposing a TEO on a child, and providing independent oversight of decisions to issue TEOs.




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Importantly, some of the committee’s most significant recommendations have been ignored, such as narrowing the criteria for issuing a TEO. And others have only been partially implemented.

Given the significant impact a TEO has on a person, the bill should adopt the committee’s recommendations in full.

Is the bill even necessary?

In parliament, Dutton said national security agencies advise that many Australians who have travelled to conflict zones in Syria and Iraq to support extremist groups are “likely to seek return to Australia in the very near future”, and the bill is needed to keep Australians safe.

But the government hasn’t explained why Australia’s extensive suite of existing anti-terrorism mechanisms doesn’t already adequately protect against threats posed by Australians returning from conflict zones.

Australia’s 75 pieces of legislation provide for criminal penalties, civil alternatives to prosecution, expanded police and intelligence powers, and citizenship revocation.

And they protect Australia from the risks posed by returning foreign fighters in a variety of ways.

For example, a person who returns to Australia as a known member of a terrorist organisation can be charged with an offence punishable by up to 10 years’ imprisonment. Where the person has done more – such as fight, resource or train with the organisation – penalties of up to 25 years each apply.

Although gathering sufficient evidence to prosecute returning foreign fighters can prove challenging, there are mechanisms in our legislation that already account for this.

For instance, a control order may be imposed on a person in cases where they are deemed a risk but there is not enough evidence to prosecute. This restricts the person’s actions through measures such as curfews and monitoring requirements.




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Evidence shows the existing measures work effectively. Police and intelligence agencies have successfully disrupted a significant number of terror plots using existing laws, most recently just days ago.

Arguably, this suggests Australia has not only the capacity, but also the responsibility to use the full force of our laws to bring foreign fighters to justice in Australia, rather than leave them stranded in conflict zones where their only connections may be to terrorist groups, thereby weakening global security.

Of course, if it’s to remain fit for purpose, Australia’s national security framework must continue to adapt to changing circumstances. But with extensive, demonstrably effective mechanisms in place, the government must clearly explain what gap this bill would fill. This has not been done.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.

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New livestreaming legislation fails to take into account how the internet actually works


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The new laws could mean internet service providers could end up being forced to surveil the activities of users.
from www.shutterstock.com

Andre Oboler, La Trobe University

In response to the live streamed terror attack in New Zealand last month, new laws have just been passed by the Australian Parliament.

These laws amend the Commonwealth Criminal Code, adding two substantive new criminal offences.

Both are aimed not at terrorists but at technology companies. And how that’s done is where some of the new measures fall down.




Read more:
Livestreaming terror is abhorrent – but is more rushed legislation the answer?


The legislation was rushed through with neither consultation nor sufficient discussion.

The laws focus on abhorrent violent material, capturing the terrorist incident in New Zealand, but also online content created by a person carrying out a murder, attempted murder, torture, rape or violent kidnapping.

The laws do not cover material captured by third parties who witness a crime, only content from an attacker, their accomplice, or someone who attempts to join the violence.

The aim is to prevent perpetrators of extreme violence from using the internet to glorify or publicise what they have done. This will reduce terrorists’ ability to spread panic and fear. It will reduce criminals’ ability to intimidate. This is about taking away the tools harmful actors use to damage society.

What the legislation aims to do

Section 474.33 of the Criminal Code makes it a criminal offence for any internet service provider, content service or hosting service to fail to notify the Australian Federal Police, within a reasonable time, once they become aware their service is being used to access abhorrent violent material that occurred or is occurring in Australia. Failing to comply can result in a fine of 800 penalty units (currently $128,952).

Section 474.34 makes it a criminal offence for a content service or hosting service, whether inside or outside Australia, to fail to expeditiously take down material made available through their service and accessible in Australia.

The criminal element of fault is not that the service provider deliberately makes the material available, but rather that they are reckless with regards to identifying such content or providing access to it. Reckless, however, has been given a rather special meaning.

What we’ve got right

There is a clear need for new laws.

Focusing on regulating technology services is the right approach. Back in 2010 when I first raised this idea it was considered radical; today even Mark Zuckerberg supports government regulation.




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We’ve moved away from the idea of technology companies of all types being part of a safe harbour that keeps the internet unregulated. That’s to be welcomed.

Penalties for companies that behave recklessly – failing to build suitable mechanisms to find and remove abhorrent violent material – are also to be welcomed. Such systems should indeed be expanded to cover credible threats of violence and major interference in a country’s sovereignty, such as efforts to manipulate elections or cause mass panics through fake news.

Recklessness as it is ordinarily understood – that is, failing to take the steps a reasonable person in the same position would take – allows the standard to slowly rise as technology and systems for responding to such incidents improve.

Also to be welcomed is the new ability for the eSafety Commissioner to issue a notice to a company identifying an item of abhorrent violent material and to demand its removal. When the government is aware of such content, there must be a way to require rapid action. The law does this.

Where we’ve fallen down

One potential problem with the legislation is the requirement for internet service providers (ISPs) to notify the Australian Federal Police if they are aware their service can be used to access any particular abhorrent violent material.

As ISPs provide access for consumers to everything on the internet, this seeks to turn ISPs into a national surveillance network. It has the potential to move us from an already problematic meta-data retention scheme into an expectation for ISPs to apply deep packet inspection monitoring of everything that is said.




Read more:
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Content services (including social media platforms such as Facebook, YouTube and Twitter, and regular websites) and hosting services (provided by companies such as Telsta, Microsoft and Amazon through to companies like Servers Australia and Synergy Wholesale) have a more serious problem.

Under the new laws, if content is online at the time a notice is issued by the eSafety Commissioner, the legal presumption will be that the company was behaving recklessly at that time. The notice is not a demand to respond, but rather a finding that the response is already too slow. The relevant section (s 474.35(5)) states (emphasis added) that if a notice has been correctly issued:

…then, in that prosecution, it must be presumed that the person was reckless as to whether the content service could be used to access the specified material at the time the notice was issued

While the presumption can be rebutted, this is still quite different from what the Attorney General’s press release (dated 4 April 2019) claimed:

… the e-Safety Commissioner will have the power to issue notices that bring this type of material to the attention of social media companies. As soon as they receive a notice, they will be deemed to be aware of the material, meaning the clock starts ticking for the platform to remove the material or face extremely serious criminal penalties.

As the law is written, the notice is more of a notification that the clock has already run out of time. It’s like arguing that the occurrence of a terrorist act means “it must be presumed” the government was reckless with regards to prevention. That’s not a fair standard. The idea of the notice starting the clock would in fact be much fairer.

Under this law, a content service provider can be found to have been reckless and to have failed to expeditiously remove content even if no notice was ever issued. In some cases that may be a good thing, but what was passed as law, and what they say they intended, don’t appear to match.




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Hosting services have the worse of it. They provide the space on servers that allows content to appear on the internet. It’s a little like the arrangement between a landlord and a tenant. With hosting plans starting from around $50 a year, there’s no margin to cover monitoring and complaints management.

The new laws suggest hosting services will be acting recklessly if they don’t monitor their clients so they can take action before the eSafety Commissioner issues a notice. They just aren’t in a position to do that.

A lot still needs to be done

As it stands, only the expeditious removal of content or suspension of a client’s account can avoid the new offence. The legislation does not define what expeditious removal means. There is nothing to suggest the clock would start only after the service provider becomes aware of the content, and the notice from the eSafety Commissioner doesn’t start a clock but says a response is already over due.

This law is designed to apply pressure on companies so they improve their response times and take preemptive action.

What’s missing too is a target with safe harbour protections, that is, a clear standard and a rule that says if companies can meet that standard they can enjoy an immunity from prosecution under this law. That would give companies both a goal and an incentive to reach it.




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Technology and regulation must work in concert to combat hate speech online


Also missing is a way to measure response times. If we can’t measure it, we can’t push for it to be continually improved.

Rapid removal should be required after a notice from the eSafety Commissioner, perhaps removal within an hour. Fast removal, for example within 24 hours, should be required when reports come from the public.

The exact time lines that are possible should be the subject of consultation with both industry and civil society. They need to be achievable, not merely aspirational.

Working together, government, industry and civil society can create systems to monitor and continually improve efforts to tackle online hate and extremism.

That includes the most serious content such as abhorrent violence and incitement to violent extremism.

Trust, consultation and goodwill are needed to keep people safe.The Conversation

Andre Oboler, Senior Lecturer, Master of Cyber-Security Program (Law), La Trobe University

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

Livestreaming terror is abhorrent – but is more rushed legislation the answer?



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The perpetrator of the Christchurch attacks livestreamed his killings on Facebook.
Shutterstock

Robert Merkel, Monash University

In the wake of the Christchurch attack, the Australian government has announced its intention to create new criminal offences relating to the livestreaming of violence on social media platforms.

The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill will create two new crimes:

It will be a criminal offence for social media platforms not to remove abhorrent violent material expeditiously. This will be punishable by 3 years’ imprisonment or fines that can reach up to 10% of the platform’s annual turnover.

Platforms anywhere in the world must notify the Australian Federal Police if they become aware their service is streaming abhorrent violent conduct that is happening in Australia. A failure to do this will be punishable by fines of up to A$168,000 for an individual or A$840,000 for a corporation.

The government is reportedly seeking to pass the legislation in the current sitting week of Parliament. This could be the last of the current parliament before an election is called. Labor, or some group of crossbenchers, will need to vote with the government if the legislation is to pass. But the draft bill was only made available to the Labor Party last night.

This is not the first time that legislation relating to the intersection of technology and law enforcement has been raced through parliament to the consternation of parts of the technology industry, and other groups. Ongoing concerns around the Access and Assistance bill demonstrate the risks of such rushed legislation.




Read more:
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Major social networks already moderate violence

The government has defined “abhorrent violent material” as:

[…] material produced by a perpetrator, and which plays or livestreams the very worst types of offences. It will capture the playing or streaming of terrorism, murder, attempted murder, torture, rape and kidnapping on social media.

The major social media platforms already devote considerable resources to content moderation. They are often criticised for their moderation policies, and the inconsistent application of those policies. But content fitting the government’s definition is already clearly prohibited by Twitter, Facebook, and Snapchat.

Social media companies rely on a combination of technology, and thousands of people employed as content moderators to remove graphic content. Moderators (usually contractors, often on low wages) are routinely called on to remove a torrent of abhorrent material, including footage of murders and other violent crimes.




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Technology is helpful, but not a solution

Technologies developed to assist with content moderation are less advanced than one might hope – particularly for videos. Facebook’s own moderation tools are mostly proprietary. But we can get an idea of the state of the commercial art from Microsoft’s Content Moderator API.

The Content Moderator API is an online service designed to be integrated by programmers into consumer-facing communication systems. Microsoft’s tools can automatically recognise “racy or adult content”. They can also identify images similar to ones in a list. This kind of technology is used by Facebook, in cooperation with the office of the eSafety Comissioner, to help track and block image-based abuse – commonly but erroneously described as “revenge porn”.

The Content Moderator API cannot automatically classify an image, let alone a video, as “abhorrent violent content”. Nor can it automatically identify videos similar to another video.

Technology that could match videos is under development. For example, Microsoft is currently trialling a matching system specifically for video-based child exploitation material.

As well as developing new technologies themselves, the tech giants are enthusiastic adopters of methods and ideas devised by academic researchers. But they are some distance from being able to automatically identify re-uploads of videos that violate their terms of service, particularly when uploaders modify the video to evade moderators. The ability to automatically flag these videos as they are uploaded or streamed is even more challenging.

Important questions, few answers so far

Evaluating the government’s proposed legislative amendments is difficult given that details are scant. I’m a technologist, not a legal academic, but the scope and application of the legislation is currently unclear. Before any legislation is passed, a number of questions need to be addressed – too many to list here, but for instance:

Does the requirement to remove “abhorrent violent material” apply only to material created or uploaded by Australians? Does it only apply to events occurring within Australia? Or could foreign social media companies be liable for massive fines if videos created in a foreign country, and uploaded by a foreigner, were viewed within Australia?

Would attempts to render such material inaccessible from within Australia suffice (even though workarounds are easy)? Or would removal from access anywhere in the world be required? Would Australians be comfortable with a foreign law that required Australian websites to delete content displayed to Australians based on the decisions of a foreign government?




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Complex legislation needs time

The proposed legislation does nothing to address the broader issues surrounding promotion of the violent white supremacist ideology that apparently motivated the Christchurch attacker. While that does not necessarily mean it’s a bad idea, it would seem very far from a full governmental response to the monstrous crime an Australian citizen allegedly committed.

It may well be that the scope and definitional issues are dealt with appropriately in the text of the legislation. But considering the government seems set on passing the bill in the next few days, it’s unlikely lawmakers will have the time to carefully consider the complexities involved.

While the desire to prevent further circulation of perpetrator-generated footage of terrorist attacks is noble, taking effective action is not straightforward. Yet again, the federal government’s inclination seems to be to legislate first and discuss later.The Conversation

Robert Merkel, Lecturer in Software Engineering, Monash University

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

Labor leads 53-47% in Newspoll as Shorten struggles with medical transfer bill


Michelle Grattan, University of Canberra

The government goes into the resumption of parliament this week
trailing Labor 47-53% on the two-party vote in Newspoll, unchanged
from a fortnight ago.

The poll comes as Labor’s stand on the legislation to facilitate
medical evacuations hangs in the balance, with Bill Shorten having
indicated he would like to find a compromise and speculation about a Labor retreat from its earlier support.

Shorten receives a briefing on the implications of the bill from the secretary of the Home Affairs Department, Mike Pezzullo on Monday. Shadow cabinet and caucus will discuss Labor’s position.

The opposition has been under concerted attack from the government
over its backing for the legislation, which passed the Senate last
year with ALP support.

Shorten is worried about Labor being wedged, because border protection is always a politically vulnerable area for the ALP.

Scott Morrison says the government will not shift from outright
opposition to the bill, which is based on a proposal originally coming from independent Kerryn Phelps but subsequently refined.

Newspoll, published in The Australian, has Labor’s primary vote up a point to 39%; the Coalition’s vote remains on 37%. The Greens are on 9%; One Nation is polling 5%, down a point.

Morrison has increased his lead over Shorten as better prime minister by 2 points to 44-35%.

Morrison’s satisfaction rating is up 3 points to 43%; his
dissatisfaction rating has fallen 2 points to 45%. Shorten has a net approval rating of minus 15, a worsening by 2 points.

The tactical battle over the medical transfer amendments will dominate the run up to Tuesday’s first day of the sitting. On another front, the opposition is trying to muster the numbers for extra sitting days to consider measures from the banking royal commission.

In comments on the medical transfer bill Opposition spokesman Shayne Neumann said on Sunday: “Labor has always had two clear objectives – making sure sick people can get medical care, and making sure the minister has final discretion over medical transfers.”

The bill provides that where there a dispute between the two doctors recommending a transfer and the minister, the final say on medical grounds would be in the hands of a medical panel.

The minister could override medical decisions only on security grounds (“security” is as defined in the ASIO act).

Passage of the legislation, which would require support from Labor and all but one of the crossbench, would be a big rebuff for the
Coalition.

But the government has managed to turn the heat onto Labor, claiming the legislation would undermine Australia’s border protection.

The briefing Shorten will receive will put more pressure on the
opposition, because Home Affairs will presumably reinforce the
argument it advanced in advice to the government.

The government has now declassified this advice – which last week it provided more informally to The Australian.

The advice, which has some sections blacked out, says: “The
effect of the Bill will undermine the Australian Government’s regional processing arrangements.

“Conduct which would come within the security exception to transfer
based on the minister’s reasonable belief that the transfer would be prejudicial to security, does not include all criminal conduct”.

“Ultimately, the amendments provide that the approximate 1000
transferees currently located in Papua New Guinea (PNG) and Nauru
could have access to a transfer to Australia within weeks of any Royal Assent,” the advice says.

“It is not expected that the Minister’s ability to refuse transfer on security grounds will significantly reduce the number of potential transfers”.

Neumann said on Sunday: “Labor has great respect for our national
security agencies and we’ve always worked cooperatively with them.”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.

Why a government would be mad to advise the refusal of royal assent to a bill passed against its will


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With the Morrison government now in minority, it is possible a bill for the transfer of asylum seekers from Nauru could pass against the government’s wishes.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

In both the United Kingdom and Australia there is speculation that controversial bills may be passed against the will of the government. If so, could the government advise that the bill be refused royal assent – the last formal step in turning a bill into a law?

This raises questions about whose advice the Queen or governor-general acts upon when giving royal assent, and whether it is constitutionally permissible or wise for ministers to advise that assent not be given to a bill that has validly passed both houses of parliament.

Could it happen with Brexit and Nauru?

In the UK, internal parliamentary dissent about the management of Brexit has led some cross-party parliamentarians to suggest they might support a bill that would require the deferral of Brexit, rather than allow Britain to crash out of the European Union without an agreement.

This has given rise to speculation in both the British popular press and academic blogs about whether the Queen could refuse assent to such a bill, acting on the advice of government ministers.




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In Australia, the issue has arisen because the Morrison government has slipped into a parliamentary minority. This creates the potential for a bill, such as one concerning the transfer of asylum seekers from Nauru to Australia for medical care, to pass the House of Representatives and the Senate without government support.

In both the UK and Australia, the standing orders of the relevant houses of parliament impose impediments to the passage of bills without government support. This is done by giving the government effective control over parliamentary business. Other parliamentary tactics, such as filibustering, may also be used to prevent the passage of such bills.

But if such impediments are overcome and a bill passes both houses against the wishes of the government, can it advise the Queen or the governor-general (described here collectively as the “head of state”) to refuse royal assent, and what should the head of state do if so advised?

Royal assent

In both the UK and Australia, parliament is defined as having three constituent parts – the lower house, the upper house and the Queen. A bill does not become a law until it has been passed by both houses (subject to special procedures for certain bills that may not need to be passed by the upper house) and has received royal assent. Royal assent is therefore a critical part of the legislative process. It has not been refused in the United Kingdom since 1707.

Royal assent is a critical part of the legislative process.
AAP/EPA/Neil Hall

In practice, in neither country is the head of state given ministerial advice to assent to bills. While there is a common belief that assent is advised in meetings of the Privy Council or the Federal Executive Council as the case may be, this is not so. It is done separately by the head of state as part of his or her normal paperwork, once the houses have passed the bills.

Indeed, in the UK, the formal words of enactment of a bill state that it is:

enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same.

In Australia the more succinct phrase is: “The Parliament of Australia enacts”.

The position is nicely illustrated by the controversy concerning Britain’s entry in 1972 into what later became the European Union. A British subject, Alan McWhirter, argued that the Queen should refuse assent to the European Communities Bill as it would fetter the powers of parliament.

The first draft reply prepared by the British government explained it was a constitutional convention that the Queen cannot refuse assent to bills passed by both houses, and which ministers advise should receive assent.

After legal advice from the Lord Chancellor’s Office that ministerial advice is not tendered in relation to royal assent, the draft letter was corrected to say that it is an established constitutional convention that:

the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament.

The relevant principles

If ministers were to advise the head of state to refuse assent to a bill that both houses had validly passed, it would potentially raise a clash between the principles of representative and responsible government. The principle of representative government requires the head of state to act in accordance with the will of the democratically elected parliament by giving assent to bills the houses have validly passed.

The principle of responsible government ordinarily requires the head of state to act on the advice of ministers who are responsible to parliament because they hold the confidence of the lower house. The corollary of this principle is that the head of state is not obliged to act on the advice of ministers who have ceased to hold the confidence of the house.

The principle of responsible government serves that of representative government by ensuring that the executive government is responsible to, and derived from, the representatives of the people in parliament. Both principles require that parliament prevails over the executive, and the executive can only function as long as it holds the support of the lower (representative) house.

As Nick Barber has argued, it would therefore be inappropriate to rely on the principle of responsible government to undermine parliamentary representative government by allowing ministers to defeat the will of the houses of parliament.

The consequences of advising refusal of assent

The defeat of a government on a bill, whether it be defeat of a bill proposed by the government or the passage of a bill opposed by the government, will not necessarily indicate a loss of confidence and require the government to resign or seek an election. But it will do so when the bill is one of major importance to the government.

There is therefore a strong argument that if a government regards a bill to be of such critical importance that it is prepared to advise the head of state to refuse assent to it, then the government’s defeat indicated by the passage of that bill amounts to a loss of confidence in the government.




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This is why it would be madness for a government to advise the head of state to refuse assent to a bill that has been passed against its wishes. Such action would not only raise a serious question about whether it can continue governing, but it would place the head of state in an invidious position by forcing him or her to reject either the advice of the houses of parliament or of ministers.

Added to this would be enormous public controversy about the constitutional propriety of the government’s action. This would undoubtedly be damaging for a government in a subsequent election.

There is a reason why there is no precedent of a government in the UK or Australia advising the refusal of assent in such circumstances. It would not only be a constitutionally dubious thing to do, but would also be politically stupid.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

How a proposed new bill would make it easier to strip Australian citizenship



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The proposed amendments also remove protections against rendering a person stateless.
Shutterstock

Rayner Thwaites, University of Sydney

Last month, the federal government introduced a bill into parliament that, if passed, will make it easier to strip an Australian of citizenship by:

  • making lesser offences a trigger for deprivation
  • dropping the requirement that, to trigger deprivation, a conviction or convictions result in a term of imprisonment of at least six years
  • weakening and complicating protections against the creation of statelessness.

These amendments are directly contrary to bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security, contained in its report of September 2015. Those recommendations were followed when parliament inserted the current citizenship stripping provisions into the Australian Citizenship Act 2007 in December 2015.

Expanding the scope, and lowering the threshold, for deprivation

The proposed amendments address what an earlier Conversation piece referred to as “conviction-based citizenship deprivation”, one of three mechanisms for deprivation introduced into the Act in 2015.




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


Of the offences currently listed as potential triggers for deprivation, some are directed at terrorism and some are without that connection (for example sabotage and espionage). All carry a maximum sentence of ten years or more: for example treason (life); espionage (life); directing the activities of a terrorist organisation (ten years) or; membership of a terrorist organisation (ten years).

This enacts the view of the parliamentary committee that ten years served to mark out the offences sufficiently serious to warrant deprivation. Further, the parliamentary committee determined that even when convicted of such an offence:

there will still be degrees of seriousness of conduct and degrees to which conduct demonstrates a repudiation of allegiance to Australia.

The committee also insisted on an additional requirement that the relevant convictions result in a sentence of at least six years imprisonment in total.

These two important existing limitations on the deprivation power are breached by the government’s proposed amendments:

  • the offence of “associating with terrorist organisations” has been added to the terrorism offences that trigger deprivation. This is an offence with a maximum sentence of only three years, radically under the ten years previously required

  • the requirement that conviction carry a sentence of at least six years has been dropped in relation to all the nominated offences designated “terrorism offences”. However, it remains in place for “other offences” such as espionage, sabotage and foreign incursions

  • the new lower standards apply retrospectively to convictions from 12 December 2005 in relation to the relevant terrorism offences.

Weakening, and complicating, protections against statelessness

The proposed amendments also weaken the safeguards on the creation of statelessness. Currently, a person can only be deprived of citizenship under the provision if he or she “is a national or citizen of a country other than Australia” at the time when the minister strips him or her of citizenship. This is to ensure that the minister does not render the person stateless.

The proposed amendments replace that test, instead providing that the minister can deprive a person of Australian citizenship if:

the Minister is satisfied that the person would not […] become a person who is not a national or citizen of any country.

The proposed formulation substitutes the minister’s satisfaction for the facts of the matter. But under Australia’s international law commitments on statelessness, the minister’s opinion is irrelevant. What matters is whether the person is a citizen under the domestic law of the foreign country concerned.

If the minister’s view that a person is a citizen of country X diverges from the view held by the authorities in country X, there is a practical impasse. If country X determines the person is not one of its citizens and accordingly refuses to admit them, and Australia denies the newly minted non-citizen a visa, deprivation may result in the former Australian citizen being held in indefinite immigration detention.




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And the nature of the inquiry has changed. In context, the word “become” muddies the time at which the person must have another nationality. It invites the possibility that deprivation will render a person stateless, but that, over some unspecified period, they will become the national of another country.

These comments on statelessness should be understood in the context of Australia’s opaque process for determining a person’s foreign nationality or nationalities. In the United Kingdom, for example, a person has a statutory right to appeal a ministerial decision to strip them of citizenship.

In the exercise of these appeal rights, the most frequently litigated issue is whether a person has another nationality (the Pham case is a prominent example). Expert witnesses are called and cross-examined on difficult questions of foreign nationality law.

None of this institutional infrastructure is provided for under the Australian legislation. How these issues are resolved needs attention. If parliament has learned anything in the past few years, it should be that determining whether a person has a foreign citizenship is no simple matter.

The Parliamentary Joint Committee on Intelligence and Security has announced an inquiry into the Bill. Submissions close on January 11, 2019.The Conversation

Rayner Thwaites, Senior Lecturer, Sydney Law School, University of Sydney

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

Shorten would need non-Green crossbench to pass bills in Senate: Australia Institute


Michelle Grattan, University of Canberra

A Labor government would likely have to rely on at least one Senate
crossbencher besides the Greens to pass contested legislation, according to an analysis from The Australia Institute, a progressive think tank.

The analysis, based in part on polling but also on
historical data, suggests that, at best, after next year’s half-Senate
election the ALP and Greens combined could have 38 senators – although more likely they would have 37.

To pass legislation, 39 votes are needed.

Releasing the analysis, the institute’s director, Ben Oquist, said this
meant “the Centre Alliance, or independents like Derryn Hinch or a
potentially re-elected Jacqui Lambie, are likely to wield significant
power”.

The 2016 double dissolution produced a very large crossbench. The
larger quota required in a half-Senate election will make it harder
for micro parties and independents, as will some changes to the
electoral system made in 2016.

Most of the non-Green crossbenchers face election – and defeat.
Victorian senator Derryn Hinch, from the Justice Party, told The
Conversation’s podcast that he had got about 220,000 primary votes
last time but now would need about 400,000. It would be “very tough”,
said Hinch, who is campaigning on the slogan “unfinished business”.




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The Australia Institute says the Coalition and Labor are each likely
to pick up two seats in each state. The Greens are “well-placed” to
win a seat in each of NSW, Victoria, Queensland, Western Australia and
Tasmania, while One Nation is well-placed to win in Queensland.

“The remaining seat in NSW, Victoria, Western Australia and Tasmania,
and the remaining two seats in South Australia, are likely to be
highly contested,” the analysis says.

In detail, it says

…NSW – The Coalition, Labor and One Nation are competitive for the last seat.

… Victoria – Labor, the Coalition and Derryn Hinch are competitive for
the final seat.

…Western Australia – The Coalition and One Nation are competitive
for the last seat.

… South Australia – The Coalition, Greens, Centre Alliance and One
Nation are competitive for the final two seats.

… Tasmania – The Coalition and Lambie are competitive for the last seat.

“The polling by itself does not suggest that the Coalition will pick
up the third seat in any state, but our historical analysis suggests
that the Coalition is more competitive than the polls alone would
indicate”, the Australia Institute says.

“Another wild card is the high Independent/Other polling. Although
Jacqui Lambie and Derryn Hinch are contenders in their respective
states, there is also the outside but real possibility of independent
or minor party pick-ups in other states as well.”

The institute predicts a Senate after the election with the Coalition
having between 30 and 35, and the ALP 27-29. It predicts the Greens
having 8 or 9 seats, One Nation between 2 and 5, Centre Alliance 2-3,
Australian Conservatives one, and others between 0 and 2.

Since the last election the Senate has had many changes, in the wake
of the citizenship crisis and defections. The Morrison government
needs eight of the 10 non-Greens from the crossbench to pass
legislation opposed by Labor and the Greens.

Oquist stressed that predictions were harder than usual to make
because of the voting system changes and a volatile political climate.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

Explainer: what is a hung parliament and how would it affect the passage of legislation?



File 20181021 105782 vr1naa.jpg?ixlib=rb 1.1
A minority government is still possible to manage, but will make Prime Minister Scott Morrison’s job that bit tougher.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

If, as predicted, the Morrison government loses the Wentworth byelection, it will have a minority on the floor of the lower house. Although the Coalition would have 75 members and the non-government parties and independents would have 75 members, the Coalition supplies the Speaker (who only votes when a vote is tied). This would leave the Coalition with 74 on the floor of the house, with the possibility of 75 votes opposing it.

The Morrison government could offer the speakership to one of the cross-bench members or a disaffected opposition member in order to restore its majority on the floor. But given the Gillard government’s unhappy experience with making Peter Slipper as Speaker during its minority government, it would seem unlikely the Morrison government would take the same path. This is especially so given the relatively short period left until an election is expected in May.




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Does this mean there could be change of government without an election?

Technically, a government may fall on a vote of no-confidence and a new government can be formed, without an election occurring, if the incoming government can command the confidence of the lower house. However, on the current numbers, that appears to be inconceivable.

This is because the Australian Labor Party only holds 69 seats, which is significantly fewer than the Coalition’s numbers on the floor of the House. The rest of the non-government seats are, or are likely to be, held by three independents: Cathy McGowan, Andrew Wilkie and (subject to confirmation) Kerryn Phelps, along with Adam Bandt from the Australian Greens, Bob Katter from Katter’s Australian Party and Rebekha Sharkie from the Centre Alliance. They support views across the political spectrum and would be extremely unlikely, in a bloc, to support Labor to form government.

Moreover, even if it had the united support of the cross-bench, once Labor had to supply a Speaker, it would be in the same position as the Morrison government, having a minority on the floor of the House. So unless the numbers changed dramatically (for example, through MPs defecting from one party to another or changes in seats in other by-elections) this is not going to occur.

It is also in the Labor Party’s political interests to have the backing of the people in an election when it takes office. It would therefore be likely to bide its time until an election.

Does the government have to prove to the Governor-General that it has the confidence of the lower house?

As the Morrison government is already in office, it does not have to convince the Governor-General of anything. The Governor-General has no role to play unless Morrison resigns, or requests a dissolution, or unless extreme circumstances arise that call for the dismissal of the government.

Governments can continue to operate when in minority in the lower House, particularly where no other party has majority support. The Gillard minority government continued to function and pass legislation for a full term, despite being in minority in both Houses.

While Gillard had an agreement on “confidence and supply” with the cross-benchers in the House of Representatives (meaning that they agreed not to vote no-confidence in the government or block the supply of money to the government, except in particular extreme circumstances), it would not be necessary for a minority Morrison government to negotiate such an agreement. Minority governments can operate without such an agreement – which in any case is not in any way legally binding on the parties to it and has no more than “political” force.

What effect will this have on the passage of legislation?

The Morrison government already has to negotiate with a range of cross-benchers in the Senate, or get the support of Labor, to pass its legislation. If it falls into minority, it will have to achieve the support of at least one of the six cross-benchers or Labor in the House of Representatives as well. This does not seem to be a terribly difficult task, particularly as a number of the cross-benchers are generally supportive of a conservative philosophy.

However, there is a small risk that a Labor-supported bill, which achieved the support of all the cross-benchers, could be passed against the wishes of a minority government. The type of bill that might attract the support of the cross-benchers would be likely to be one that increased government accountability. A bill to institute an anti-corruption body at the federal level, for example, might have some prospect of being passed by both houses. A bill to enhance accountability of political donations might also have some prospect of success.

But such a bill could not be passed if it involved the appropriation of money. This is because it requires a message from the Governor-General recommending it, and the Governor-General is advised in this regard by the government. This ensures that a government retains control over the budget, even when it is in minority.

Could the Morrison government advise the Governor-General to refuse to give assent to a bill passed by both houses of parliament against its will? Such action would be extremely unwise, for two reasons.

First, there is considerable controversy about whether the Governor-General, in exercising the role of assenting to bills, is fulfilling a legislative function, acting on the advice of the two houses, or an executive function, acting on ministerial advice. The Governor-General could legitimately take the view that the principle of representative government requires him to act on the advice of the houses in giving assent to a bill that has been validly passed by both houses.

Second, if the government acted in such a high-handed way as to reject the will of both houses, this might galvanise the cross-benchers in the House of Representatives to vote no-confidence in the government. It is therefore unlikely that the government would take such a risk.

What other impacts might a loss of a majority have?

The key consequence of a loss of the government’s majority in the lower house would be that it would no longer have complete control over motions concerning the business of the house. The government would be protected to some extent by a rule that a motion to suspend the standing orders of the House, without notice, requires the support of an absolute majority of members, being 76. However, standing orders can be suspended by an ordinary majority, being the majority of members who happen to vote on the motion, if notice is given. This means that parliamentary tactics will become of heightened importance.

It also means that the government may lose votes on motions on issues such as the referral of a Member to the Court of Disputed Returns for determination of whether or not the member is disqualified from sitting in parliament.




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Explainer: is Peter Dutton ineligible to sit in parliament?


It is possible, for example, that a majority of the house might refer Peter Dutton to the Court of Disputed Returns, given that a previous resolution to this effect was only lost by one vote last time. This may re-open the cavern of horrors that is section 44 of the Constitution.

Does the government have to resign if it loses a vote in the house?

A government does not have to resign if it loses a vote on the floor of the House of Representatives. It only has to act if a vote of no-confidence in the government is passed by the lower house. A vote of no-confidence is one that expressly states the house has no confidence in the government, or one that blocks a supply bill or symbolically reduces the amount of supply granted to the government. It may also include a vote to defeat a major government bill, which the government has declared to be an issue of confidence. The loss of a vote on an ordinary bill or a procedural motion will not usually be regarded as indicating a loss of confidence.

Further, if a no-confidence motion is passed by chance (for example, because a government member did not make it to the chamber in time for the vote or was away sick) there is no immediate requirement to act, as long as restored confidence can be shown within a reasonable time. Governments should not fall by accident.

Even if the government does lose confidence, it can seek to go to an election instead of resigning. Although the Governor-General formally has the power to reject a request for an election, he would only be likely to do so if that request came shortly after the previous election and there was another person who could form a stable government. That is not the case here. We are sufficiently close to the end of the government’s term that a dissolution and fresh election would almost certainly be granted by the Governor-General if the government suffered a loss of confidence. So the consequence of a successful vote of no confidence would be an election.

Governing just became a little harder

The Morrison government would certainly find it more difficult, but not impossible, to manage the House of Representatives if it is in minority. It would require great discipline from its MPs, good organisation and high level negotiating skills to ensure that the business of the house was completed without mishaps.

In the words of a former prime minister, it would need to be “agile” in its management of parliament for the rest of its term.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

States want the GST guarantee set in legislative stone


Michelle Grattan, University of Canberra

The government hoped to have the pressure on Labor over planned legislation for a new GST carve up but instead it has found itself on the back foot.

At a meeting of state and territory treasurers on Wednesday, there was a general demand across the political spectrum for the legislation to include a guarantee that no jurisdiction will be worse off.

NSW Liberal Treasurer Dominic Perrottet said after the meeting that “all states and territories put forward the strong view” the bill must include this.

“Unfortunately the Commonwealth indicated it would proceed with legislation without that guarantee,” he said.

He said that under the federal government proposal “there are a number of scenarios where NSW would lose substantial funding.

“That is not an acceptable outcome,” Perrottet said.

“In the weeks ahead I will be making every effort to ensure any Commonwealth legislation includes the guarantee the Prime Minister and the Treasurer have previously given – that our state will not be worse off.”

Federal Treasurer Josh Frydenberg said the legislation would be introduced in the next parliamentary sitting week. He reaffirmed that, “based on the Productivity Commission’s data”, the deal “will make every state and territory better off. This will guarantee an extra $9 billion in funding over the next 10 years”.

Frydenberg said the government was not including the guarantee in the legislation because “we don’t want to run two sets of books … the old system and the new system.”

If the government does not give way beforehand, the issue of the guarantee will likely become one for the Senate.

The new distribution for GST revenue is driven by the need to give Western Australia a fairer share. To win the support of the other jurisdictions the government announced the $9 billion in extra funding, to make for winners all round. But the states are concerned that if the guarantee is not in the legislation, unforeseen circumstances could arise that might disadvantage them.

Anxious to bed down the new GST arrangement without the need to get agreement from all jurisdictions, the government resorted to the unusual course of legislation – only to then run into Wednesday’s problems.

Victorian Labor Treasurer, Tim Pallas said the lobbying would continue to have the guarantee “enshrined in legislation”.

Queensland Labor Treasurer, Jackie Trad said that without the legal guarantee there was a “real risk” some jurisdictions could be worse off in certain circumstances. “We cannot prepare or forecast or model every single scenario.”

The South Australian and Tasmanian Liberal treasurers also declared they wanted legislated protection.

Shadow treasurer Chris Bowen said: “It’s a particularly special day when Josh Frydenberg offers an additional $9 billion in GST top up payments and still manages to get every state and territory Treasurer united against him.”

Bowen said Morrison promised when treasurer that no state would be worse off under the changes. “But he’s been called out this week for the government’s legislation failing to match this guarantee”.

Labor’s position is that it supports legislating the new distribution but wants the guarantee included. Morrison has been challenging Bill Shorten to back the legislation.

While there was a fight over the GST distribution legislation, there was unity over removing the GST on tampons from the start of 2019, ending a battle that began when the tax was introduced.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.

Turnbull dumps emissions legislation to stop rebels crossing the floor


Michelle Grattan, University of Canberra

Prime Minister Malcolm Turnbull has done a backflip on his proposal to put the emission reduction target into legislation, in the face of rebel backbenchers threatening to cross the floor.

The new plan is for the energy target – a 26% reduction to carbon dioxide emissions for the electricity sector – to be set by an executive order of the minister. Such an order cannot be disallowed.

The stunning retreat emerged as the energy issue threatened to turn into a crisis for Turnbull’s leadership, and the government worked on measures to reduce power prices to meet the demands of Coalition dissidents.

Cabinet Minister Peter Dutton remained conspicuously silent on Friday in face of a report that conservatives in the Liberal party were urging him to challenge Malcolm Turnbull within weeks.




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A report in Sydney’s Daily Telegraph injected leadership speculation into the centre of Turnbull’s already highly difficult battle to curb a backbench rebellion over the government’s National Energy Guarantee (NEG).

The government has consistently refused a demand from the Victorian Labor government that the target should be set by regulation not legislation.




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Infographic: the National Energy Guarantee at a glance


The executive order would be accompanied by an Australian Competition and Consumer Commission report to parliament on the price impact of the target.

If Turnbull had gone ahead with legislation, and enough backbenchers had crossed the floor to defeat the bill, it would have amounted to an effective vote of no confidence in his leadership.

While some of the backbench rebels will be satisfied with the price package, it is not clear whether this will include Tony Abbott and his hardcore supporters, who want to bring Turnbull down and have smelled political blood.

Tuesday’s Coalition parties meeting will discuss the new proposals.

On another front, Nationals leader and Deputy Prime Minister Michael McCormack is facing mounting criticism of his performance, as the Nationals federal council meets in Canberra at the weekend. The energy issue is likely to be front and centre there.

Despite his public silence, it is understood that Dutton on Friday privately told Turnbull that he was comfortable with the government’s energy policy.

The backbench critics have had two major areas of concern. They did not think the NEG plan did enough to reduce electricity prices. And they were unhappy with the 26% target for reducing emissions in the electricity sector being legislated.

But the retreat from the target being enshrined in legislation will not be enough to satisfy those who want Australia to walk away from the target altogether and pull out of the Paris climate agreement.

Up to 10 backbenchers had threatened to cross the floor on the emissions reduction legislation.

The report about Dutton followed his interview with Ray Hadley on 2GB on Thursday in which Hadley challenged him over whether he was “blindly loyal” to Turnbull.

Dutton said he gave his views privately as a cabinet member and wasn’t going to bag out his colleagues or the Prime Minister publicly.

“If my position changes – that is, it gets to a point where I can’t accept what the government’s proposing or I don’t agree – then the Westminster system is very clear: you resign your commission,” he told Hadley.

The Telegraph report said Dutton was being urged to challenge Turnbull “on a policy platform of lower immigration levels and a new energy policy focusing on cheaper bills rather than lowering emissions.” Conservative MPs had told the Telegraph “a ‘torn’ Mr Dutton was considering his options,” the report said.

Asked on Nine whether Dutton was going to have a crack at the leadership, Defence Industry Minister Christopher Pyne said “absolutely not.”

Pyne also rejected the suggestion the government was on the ropes. In an obvious reference to Abbott and his supporters, Pyne said: “The polls are about 50-50 and there’s a lot of hyperventilating going on, and there’s a few people I think who are trying to put the band back together from the late 2000s, noughties.”




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Grattan on Friday: Malcolm Turnbull’s NEG remains in snake-infested territory


Finance minister Mathias Cormann said he had not heard any talk of some conservatives urging Dutton to challenge.

Cormann, a fellow conservative who is close to Dutton and said they had had four walks this week at 5.30 am, told Sky,: “We are both very committed to the success of the Turnbull Government and to winning the next election.

“We strongly support the Turnbull leadership of course and we want to see the Coalition government successfully re-elected early next year when the election is due.”




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The National Energy Guarantee is a flagship policy. So why hasn’t the modelling been made public?


The prices package would be based on recommendations made in the recent report of the Australian Competition and Consumer Commission.

The government has been briefing that Turnbull is willing to take a “big stick” to companies to ensure consumers get better deals.

The government is looking at cracking down on how companies bid into the wholesale electricity market and secret contracts between different players.

There would be closer scrutiny of energy companies buying and selling electricity internally between their own generation and retail companies at inflated prices.

This would put the contracts of “gentailers” under attention to ensure transfer prices did not disadvantage consumers. The ACCC said high transfer prices “raise concerns about the potential for substantial profit to be allocated to the wholesale businesses.”

The ACCC has also urged more transparency on direct contracts between retailers and individual generators, proposing these be put on a public register.

Among other changes being discusssed are:

  • providing the Australian Energy Regulator (AER) with powers to deal with manipulation of the wholesale market.

  • requiring the reporting and disclosing of over-the-counter trades (in a de-identified format) to make available important market information.

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    The Conversation

    expanding the AER wholesale market monitoring functions to include monitoring, analysing and reporting on the contract market.

Michelle Grattan, Professorial Fellow, University of Canberra

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