Who’s Liberal? What’s Labor? New bill to give established parties control of their names is full of holes

Wikicommons/Shutterstock/The Conversation

Graeme Orr, The University of QueenslandAre the Liberals liberal? Does the Labor Party stand chiefly for those who labour? Electoral politics is nothing if not about wrapping ideas – about values and power – in words.

On Friday, the Morrison government introduced a Party Registration Integrity Bill to the Commonwealth parliament. The bill would let established parties veto the use of words like “Liberal”, “Labor” or “Democrats” in the names of newer, rival parties. It will also make it harder to register – or keep registered – parties, by tripling the number of members required to 1,500, unless the party has an MP.

What is going on? Is this about democratic values, or is it a power play?

People may differ about the bill’s justification. But one thing is clear to a lawyer: as drafted, the bill is cooked. It overreaches and is not well drafted.

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To take an obvious example, the bill will let the Liberal Party control the word “Liberal”, if “contained” in the name of any other registered party. That includes the Liberal Democratic Party of ex-senator David Leyonhjelm and potential-senator Campbell Newman fame.

The Liberal Party is also upset by the emergence of the New Liberals. But “Liberals” is not the same as “Liberal”. Indeed it’s a noun, not an adjective. So perhaps the bill won’t cure that upset.

Mere “function words”, like “the” or “of” don’t count. Nor is any “collective noun for people” protected. Think “party” or “Australians”. Linguists will be left to argue whether collective nouns like “Liberals” or “Greens” are off-limits. Can “Indigenous” be bagsed? Your guess is as good as mine.

“Frivolous and vexatious” names will also be struck out. So no Australian version of the UK’s Monster Raving Loony Party. Oh, the shame; if Brits can take a joke, why can’t we?

Australia’s most colourful political figure is currently seeking to remove his own name from his Clive Palmer United Australia Party. But if he doesn’t, he could forever veto anyone else called “Clive” or “Palmer” naming a party after themselves. Real names are not “function words”.

More seriously, handing one party squatter’s rights over everyday words is troublesome. It creates a virtual intellectual property right. That is fine for trademarking commercial goods; it’s another thing altogether in politics, where language is dynamic and fundamental. Worryingly, it gives leverage to established parties. They could ask a newer party for its support (with legislation or electorally) in return for permission to use the overlapping word in their name.

The government argues the bill is needed to minimise voter confusion. But there’s still plenty of confusion within the bill’s language.
AAP/Dan Himbrechts

The government argues the bill is needed to minimise confusion among electors. After all, compulsory and preferential voting means identifiable names on ballot papers are crucial, as most electors vote for parties, and some only decide their full preferences when mulling the ballot itself.

Why does party registration, and names, matter? Anyone can form a political group. But to have your group’s name on the ballot paper, and control public funding for garnering 4% of the vote, you need to register as a “party”.

Before registration systems arose in the 1980s, Australian politics was largely a battle between Labor and the Liberal-Country Party Coalition. Other forces came and went, often via splits in the major groupings.

The Liberal Movement was a progressive liberalist party in the 1970s, while the Democratic Labor Party (DLP) had success as a socially conservative, but union-oriented, party in the 1950s-70s. Their names were natural enough.

Australian parties today are electoral machines more than social movements. Each, understandably, wants to guard its “brand”. Infamously, the Liberal Democratic Party won a Senate seat in 2013 when it lucked the first place on a huge ballot paper while the Liberal Party was hidden in the middle.

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In response, laws were passed to allow visual cues on ballot papers, via party logos. And the independent Australian Electoral Commission (AEC) and courts can already rule whether a name can be confused with another party, or implies a false association.

In recent decades, registered parties have proliferated, partly due to opportunists wanting a ticket in the lottery of the final Senate seat up for grabs. That gambit has been significantly nullified by making voters choose where their preferences go (if anywhere) in the Senate.

That leaves the long-term decline in voter base of both major parties as the chief driver of the creation of new parties. For national elections, there are 46 registered parties. In Queensland, without a state Senate, there are barely a dozen. Is too much potential choice a bad thing?

Forty-six is a lot, but some will die naturally. Others will be wiped away by the increased, 1,500-member rule. Which is fair enough, unless you are a regional party focused only on the Senate in a small state or territory. The 1,500-member rule also won’t deter parties formed by wealthy interests, if the party can afford a zero-dollar membership “fee”.

Ultimately, this bill is dubious not because of mathematics, but linguistics. It gives established parties control over language. Not even the Académie Française, much lampooned for its elite rulings over how French should be used, has that kind of power.

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.

Towards a post-privacy world: proposed bill would encourage agencies to widely share your data

Bruce Baer Arnold, University of Canberra

The federal government has announced a plan to increase the sharing of citizen data across the public sector.

This would include data sitting with agencies such as Centrelink, the Australian Tax Office, the Department of Home Affairs, the Bureau of Statistics and potentially other external “accredited” parties such as universities and businesses.

The draft Data Availability and Transparency Bill released today will not fix ongoing problems in public administration. It won’t solve many problems in public health. It is a worrying shift to a post-privacy society.

It’s a matter of arrogance, rather than effectiveness. It highlights deficiencies in Australian law that need fixing.

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Making sense of the plan

Australian governments on all levels have built huge silos of information about us all. We supply the data for these silos each time we deal with government.

It’s difficult to exercise your rights and responsibilities without providing data. If you’re a voter, a director, a doctor, a gun owner, on welfare, pay tax, have a driver’s licence or Medicare card – our governments have data about you.

Much of this is supplied on a legally mandatory basis. It allows the federal, state, territory and local governments to provide pensions, elections, parks, courts and hospitals, and to collect rates, fees and taxes.

The proposed Data Availability and Transparency Bill will authorise large-scale sharing of data about citizens and non-citizens across the public sector, between both public and private bodies. Previously called the “Data Sharing and Release” legislation, the word “transparency” has now replaced “release” to allay public fears.

The legislation would allow sharing between Commonwealth government agencies that are currently constrained by a range of acts overseen (weakly) by the under-resourced Australian Information Commissioner (OAIC).

The acts often only apply to specific agencies or data. Overall we have a threadbare patchwork of law that is supposed to respect our privacy but often isn’t effective. It hasn’t kept pace with law in Europe and elsewhere in the world.

The plan also envisages sharing data with trusted third parties. They might be universities or other research institutions. In future, the sharing could extend to include state or territory agencies and the private sector, too.

Any public or private bodies that receive data can then share it forward. Irrespective of whether one has anything to hide, this plan is worrying.

Why will there be sharing?

Sharing isn’t necessarily a bad thing. But it should be done accountably and appropriately.

Consultations over the past two years have highlighted the value of inter-agency sharing for law enforcement and for research into health and welfare. Universities have identified a range of uses regarding urban planning, environment protection, crime, education, employment, investment, disease control and medical treatment.

Many researchers will be delighted by the prospect of accessing data more cheaply than doing onerous small-scale surveys. IT people have also been enthusiastic about money that could be made helping the databases of different agencies talk to each other.

However, the reality is more complicated, as researchers and civil society advocates have pointed out.

In a July speech to the Australian Society for Computers and Law, former High Court Justice Michael Kirby highlighted a growing need to fight for privacy, rather than let it slip away.
Shutterstock

Why should you be worried?

The plan for comprehensive data sharing is founded on the premise of accreditation of data recipients (entities deemed trustworthy) and oversight by the Office of the National Data Commissioner, under the proposed act.

The draft bill announced today is open for a short period of public comment before it goes to parliament. It features a consultation paper alongside a disquieting consultants’ report about the bill. In this report, the consultants refer to concerns and “high inherent risk”, but unsurprisingly appear to assume things will work out.

Federal Minister for Government Services Stuart Roberts, who presided over the tragedy known as the RoboDebt scheme, is optimistic about the bill. He dismissed critics’ concerns by stating consent is implied when someone uses a government service. This seems disingenuous, given people typically don’t have a choice.

However, the bill does exclude some data sharing. If you’re a criminologist researching law enforcement, for example, you won’t have an open sesame. Experience with the national Privacy Act and other Commonwealth and state legislation tells us such exclusions weaken over time

Outside the narrow exclusions centred on law enforcement and national security, the bill’s default position is to share widely and often. That’s because the accreditation requirements for agencies aren’t onerous and the bases for sharing are very broad.

This proposal exacerbates ongoing questions about day-to-day privacy protection. Who’s responsible, with what framework and what resources?

Responsibility is crucial, as national and state agencies recurrently experience data breaches. Although as RoboDebt revealed, they often stick to denial. Universities are also often wide open to data breaches.

Proponents of the plan argue privacy can be protected through robust de-identification, in other words removing the ability to identify specific individuals. However, research has recurrently shown “de-identification” is no silver bullet.

Most bodies don’t recognise the scope for re-identification of de-identified personal information and lots of sharing will emphasise data matching.

Be careful what you ask for

Sharing may result in social goods such as better cities, smarter government and healthier people by providing access to data (rather than just money) for service providers and researchers.

That said, our history of aspirational statements about privacy protection without meaningful enforcement by watchdogs should provoke some hard questions. It wasn’t long ago the government failed to prevent hackers from accessing sensitive data on more than 200,000 Australians.

It’s true this bill would ostensibly provide transparency, but it won’t provide genuine accountability. It shouldn’t be taken at face value.

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Bruce Baer Arnold, Assistant Professor, School of Law, University of Canberra

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

Morrison’s foreign relations bill should not pass parliament. Here’s why

Melissa Conley Tyler, University of Melbourne

The Morrison government wants sweeping new powers to cancel international arrangements by universities, councils and state governments.
After announcing its intentions in August, it introduced a bill to parliament last week.

The government argues the bill is needed to “ensure a consistent and strategic approach to Australia’s international engagement”. Prime Minister Scott Morrison has said Australia must “speak with one voice”.

But the bill should not pass parliament.

Not only has the government failed to identify any specific problem with the status quo, the bill rests on a fundamental misunderstanding of the nature of modern diplomacy.

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Modern diplomacy is about multiple voices

For decades, Australia has had international agreements beyond the federal level. A huge number of actors interact internationally and affect how Australia is viewed. This can’t be exclusively managed from Canberra.

Over the past year, I’ve been researching new diplomatic actors – including sister cities, think tanks, sports diplomacy, international education, student mobility and corporate diplomacy.

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There are 87 state trade and investment offices overseas and 500 sister cities, including more than 100 with China. Each university would have hundreds of international agreements, including for students to study abroad for a semester and for research collaboration.

The proposed legislation mistakenly rests on the idea that speaking with “one voice” in foreign policy is a positive thing, when the modern idea of diplomacy emphasises broad engagement.

Australia benefits when multiple actors across society engage internationally to balance the ups and downs in official relations. As American author Parag Khanna memorably described it, “diplomacy is no longer the stiff waltz of elites but the jazzy dance of the masses”.

This bill overreaches

The legislation badly overreaches by seeking to regulate activities across education, culture, research and trade.

For example, it treats a visual artist exchange between Victoria and Jiangsu or a library agreement between the City of Sydney and Guangzhou as issues of foreign policy.

Including universities is also a step too far. It was originally thought the legislation would only cover arrangements between universities and foreign agencies, but it also covers universities that do not have institutional autonomy, which is a large number of foreign universities. This vastly increases the scope of regulation.

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Meanwhile, the test for vetoing a foreign arrangement is far too wide. The foreign minister can declare an arrangement invalid if it is likely to adversely affect Australia’s foreign relations (undefined) or be inconsistent with Australia’s foreign policy (defined as whatever the minister says it is, whether or not written or publicly available). “Arrangements” include anything in writing, whether or not legally binding.

We don’t actually need this bill

In sounding the alarm, the government has failed to pinpoint a real problem.

For example, there is zero evidence that a non-binding, symbolic memorandum of understanding between Victoria and China on to the Belt and Road Initiative has hampered the Commonwealth in pursuing Australia’s foreign policy.

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It is important to note Australia already has the ability to protect itself, with existing laws on espionage, foreign interference and foreign investment and a University Foreign Interference Taskforce. We made it through the Cold War without needing this type of legislation.

What will happen if the bill passes?

Apart from being unnecessary over-regulation, the bill will also create problems for Australia if passed.

Firstly, the Department of Foreign Affairs and Trade will have to divert resources to this new function when its funding is the lowest in history.

This means diplomats, who could be pro-actively working to promote the national interest, must check potentially tens of thousands of overwhelmingly non-controversial arrangements like the City of Warrnambool’s local export bureau with Changchun or the City of Darwin’s student English language competition in Haikou.

Secondly, the bill is likely to reduce international linkages due to uncertainty about what will be approved. Educational or cultural exchanges are the most at risk.

State and local governments will continue to promote trade, but they will waste time filling in the prescribed form to take, say, a delegation of Australian start-ups to pitch to investors in Nanjing.

Beyond this, the legislation sends exactly the wrong message to the wider community: to be uneasy about international engagement.

And all of this at a time of economic recession, when we need to find new avenues for growth. Sister cities have been shown to have measurable direct economic benefits, while state government export and investment promotion brings local jobs.

What could we do instead?

There are better solutions: more information-sharing between different levels of government; a one-page bill banning state governments from the Belt and Road Initiative.

Even giving the foreign affairs minister the power to request information on, and then cancel, any specific arrangement would be better than the overkill regulatory burden proposed.

And if, as many believe, the bill is directed at China, the irony is that fighting the Chinese Community Party seems to bring out the Australian government’s authoritarian tendencies.

Speaking with one state-approved voice is not what a open democracy like Australia should aim to achieve.

Melissa Conley Tyler, Research Fellow, Asia Institute, University of Melbourne

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

View from The Hill: Barilaro keeps Nationals in the tent; koalas stay in limbo

Dean Lewins/AAP

Michelle Grattan, University of Canberra

Several premiers presently find themselves at war with the federal government. NSW Premier Gladys Berejiklian, by contrast, suddenly found herself locked in battle with her deputy premier, John Barilaro, and his bolshie band of Nationals.

The junior partner in the NSW coalition chose this week to pull on a stoush over a new regime the state government launched months ago to protect koalas, which have been devastated and displaced by fires and drought.

That a row over koalas could shake the Berejiklian government to its core during a pandemic is startling, at the least. The Nationals justify this by saying they’d long been told their concerns would be considered, and they hadn’t been.

They insist they’re not anti-koala — they’d like to see the population doubled, they say — but claim the new regime is too burdensome, including by extending the definition of core koala habitat and increasing the number of koala tree species.

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The Nationals are under pressure from farmers and, at a political level, from the Shooters, Fishers and Farmers party, which is always nipping at their heels.

Within the Nationals, pressure built with first one, then two, and several more MPs in revolt — and quickly the whole party. Efforts to get a special meeting to deal with the koala issue were unsuccessful – the premier had other things on her plate.

By Thursday, the Nationals had resolved that until the koala row was addressed they’d no longer attend joint party room or parliamentary leadership meetings and would abstain from voting on government bills. (They reserved the right to support bills and motions important to regional areas.)

“This effectively puts the entire party on the crossbench,” the party said in a statement.

Barilaro insisted the Nationals could take this stand while their ministers remained in cabinet.

This would have made them sort of “virtual” crossbenchers – a very strange notion indeed under the Westminster system.

A frustrated Berejiklian issued an ultimatum. “It is not possible to be the deputy premier or a minister of the Crown and sit on the crossbench,” she said in a statement.

She said she’d told Barilaro that he and his Nationals cabinet colleagues had until 9am Friday “to indicate to me whether they wish to remain in my Cabinet or else sit on the crossbench”.

By Friday morning, Barilaro had stepped his party back from the brink. After a meeting with Berejiklian, the two leaders said in the briefest of statements the coalition remained “in place”, as did “cabinet conventions and processes”.

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Meanwhile, koalas were to be dealt with at a coming cabinet meeting. The extraordinary upheaval may be over for now, but it leaves scars, questions, uncertainty and tension.

Most obviously, the substantive issue is still unresolved. If the Nationals don’t get their way on changes to the koala regime, there could easily be another explosion. If they do, many Liberals will be angry.

The Nationals’ constituency will be behind the party’s stand. But for numerous Liberal supporters, compromise on as emotive an issue as koalas will be an electoral no-no.

This week’s events have again brought into question Barilaro’s judgement.

He was caught between the strong feelings within his party and the need to maintain the coalition. He laid himself open to criticism of firstly overreaching and then failing to carry through his threat.

This is against the background of his behaviour before the Eden-Monaro byelection, when he as good as said he would run for the seat and then said he wouldn’t.

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Even some Nationals shake their heads, while the Liberals resent what Berejiklian has to put up with.

At one stage on Thursday, Barilaro asked his parliamentary party if they thought someone else would be better to lead them. The idea was dismissed. Nevertheless, the past few days have fanned doubts about his style of leadership.

Most serious in the immediate term, the trust between Berejiklian and Barilaro has been further eroded, after taking a knock from his conduct over Eden-Monaro. The NSW coalition remains intact, but no one can miss the crack that has been repaired by superglue. It is not as robust as it once was.

And Berejiklian has less patience with her volatile partner than she used to have.

Michelle Grattan, Professorial Fellow, University of Canberra

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

The NSW koala wars showed one thing: the Nationals appear ill-equipped to help rural Australia

JoelCarrett/AAP

Tanya M Howard, University of New England

This morning, NSW Nationals leader John Barilaro capitulated on a threat to tear apart the state government over new koala protections. For now, the government remains intact. However the Nats’ campaign to loosen environmental protections that affect farmers will continue to destabilise the Coalition in the longer term.

The dramatic events of the past 24 hours have cast doubt on whether such a blustering, short-sighted political party has what it takes to lead rural Australia. The NSW Nationals have been entrusted with seven ministerial portfolios – from agriculture to trade and early childhood. But they were willing to throw it away over the fine print of a single planning policy.

There’s no doubt many people in the bush, including farmers, are doing it tough. And many farmers feel environmental protections are hurting their livelihood.

But it’s in everyone’s interests – including farmers’ – to ensure our environment stays healthy. And the extreme summer bushfires shone new light on how close we are to losing vulnerable species such as koalas. It’s hard to understand what the National Party thought it had to gain from this damaging display of brinkmanship.

The Nationals objected to changes to koala protections that curtail their land management.
Joel Carrett/AAP

A long history of tension

Nationals MPs had been demanding the government change a state environmental planning policy that aims to make it easier to identify and protect koala habitat. The policy changed the way koala habitat is identified by increasing the number of protected tree species from ten to 65.

Barilaro branded the change a “land lockup policy”. He described the number of protected tree species as “excessive” and said farmers would be forced to conduct time-consuming and expensive surveys before any new development or farming on their land.

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NSW Liberal Planning Minister Rob Stokes rejected Barilaro’s claims that farmers can’t build a feed shed or a driveway without a koala study, and that noxious weeds are listed as core koala habitat.

Development pressures on the NSW north coast have likely fuelled this latest stoush. There, a move to different, more lucrative crops such as blueberries and the demand by “sea-changers” for residential real estate is prompting agricultural land to be sub-divided and sold. The new koala rules might slow this down.

Murdered compliance officer Glen Turner.
Supplied by family

Land clearing policy has always been a flashpoint for conflict in regional and rural NSW. Tensions tragically came to a head in 2014 when environment compliance officer Glen Turner was murdered by a disgruntled landholder found guilty of breaking native vegetation laws. In the days afterwards, rural politicians said Turner’s death was “brought about by bad legislation” on land clearing.

Since then the NSW government has relaxed native vegetation laws. As a result, land clearing in the state has risen almost 60%, according to government data.

And in August last year the government announced it would no longer investigate or prosecute those who cleared land illegally under the old laws.

A chain used for land clearing is dragged over a pile of burning wood on a rural property.
Dan Peled/AAP

The city-bush divide

The issue of environmental protection plays into a historical city-country divide that has long been an easy wedge for rural politicians.

This tension came to the fore over the koalas issue. Clarence MP Chris Gulaptis said this week:

I was elected to Parliament to represent my community and I get really annoyed when city-centric people preach to us, especially when people in Sydney have done nothing for their koalas.

But it’s worth remembering northwest NSW has some of the highest land clearing rates in the world. It has been identified as a deforestation hotspot, on par with Brazil and the palm oil plantations of Indonesia.

And environmental degradation is not just a concern for city people. Biodiversity underpins our agricultural systems; insects, birds and soil microbes all contribute to food security and regional prosperity.

Separately and just as importantly, in all this talk of what regional communities want, the National Party is virtually silent on the views of Indigenous Australians.

Biodiversity underpins farming systems.
Shutterstock

Farmers have bigger problems than koalas

Barilaro and his MPs suggested the amendment was the final “nail in the coffin” of rural and regional Australia. But the fact is, the rapidly dwindling NSW koala population already has one foot in the grave.

A recent NSW inquiry predicted the extinction of the species by 2050 unless protections and rehabilitation efforts were radically ramped up. And a World Wildlife Fund report this week found a 71% decline in koala numbers across bushfire-affected areas of northern NSW.

Koala protections are far from being the biggest threats to rural prosperity. Escalating tensions with China have led to recent bans on barley and beef. The rural community has been hit hard by the extreme drought, and there is growing discontent with the mismanagement of water in the Murray Darling Basin.

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What’s more, recent expansion of gas exploration and development in the state’s northwest has left locals worried about water contamination and over-extraction.

There is no doubt life in regional and rural Australia is different to the life lived in the city. In some areas there are poor internet connections, worse roads and great distances to travel for basic health services.

But these problems, like land clearing, are complex. And it seems the NSW Nationals are ill-equipped to deal with these challenges. This week’s display suggests the party only deals in wedge politics and blunt solutions – and with that approach, we all stand to lose.

Tanya M Howard, Senior Research Fellow, University of New England

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

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.

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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.

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.

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

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.

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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.

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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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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.

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?

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.

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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.

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.”

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

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.

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.