New foreign interference laws will compound risks to whistleblowers and journalists


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

Keiran Hardy, Griffith University

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

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

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

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


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


Espionage

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

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

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

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

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

Foreign interference

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

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

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

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

  • serve the intelligence purposes of a foreign actor

  • harm Australia’s national security

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

  • influence a government or political process.

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

Are the new offences needed?

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

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

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

What are the risks?

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

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

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


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


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

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

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

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

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

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

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

Keiran Hardy, Lecturer, School of Criminology and Criminal Justice and Member, Griffith Criminology Institute, Griffith University

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

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Ten things Australia can do to be a human rights hero



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Effective leadership requires leading by example, but Australia’s human rights record has drawn increasing criticism at home and abroad.
Andrew Hill/flickr, CC BY-ND

Carolien van Ham, UNSW; Lisa Hill, University of Adelaide, and Louise Chappell, UNSW

This article is part of the Democracy Futures project, a joint global initiative between The Conversation and the Sydney Democracy Network. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.


Sunday is Human Rights Day. December 10 marks 69 years since the United Nations General Assembly adopted the Universal Declaration of Human Rights on December 10, 1948. With the 70th anniversary coming up in 2018, the UN has launched Stand Up 4 Human Rights, a year-long campaign to bring the ideals of the declaration closer to reality.

As a leader in the framing of the UN declaration and one of the world’s oldest democracies, Australia prides itself on its commitment to democracy and human rights. The Australian government has an excellent opportunity to show leadership in promoting these values at home and abroad when it takes up a seat on the UN Human Rights Council from 2018.

In this role, Australia has pledged to be “an international human rights leader” and to advance human rights with “active, practical advocacy, sensitivity and fairness, and a willingness to speak out against human rights violations and abuses”.

However, effective leadership requires leading by example, and Australia’s human rights record has drawn increasing criticism in recent years.

What can we do to strengthen our human rights framework?

We recently brought together Australian human rights scholars to answer this question. Our collection of articles in the Australian Journal of Human Rights, entitled Vanguard or laggard? Democracy and human rights in Australia, details the relationship between democracy and human rights, and provides a roadmap for improving Australia’s democratic and human rights record.

Democracy should generate protection for human rights through accountability mechanisms that work across three axes:

  • horizontal accountability refers to the role of the judiciary and integrity institutions such as the ombudsman and human rights commission

  • vertical accountability refers to elections and the participatory role of citizens

  • diagonal accountability denotes the role of free speech, media and civil society organisations in holding governments to account.

There is no clear-cut nexus between Australian democracy and human rights across these areas of accountability. And the conditions necessary for each form of accountability to operate successfully are not as strong as is generally assumed.

Accountability mechanisms are often overshadowed by parliamentary supremacy in our version of Westminster democracy. This leaves many citizens vulnerable to rights infringements.

A core weakness in Australia’s vertical accountability is the lack of an entrenched or statutory bill of rights. This leaves the executive and legislature with primary control over human rights determinations.

Voters decide who these legislators are and can change them at elections if they are unhappy with their decisions on rights issues. History suggests voters have indeed punished governments that fail to act on majority rights concerns.

However, protection for minority rights, and the rights of Indigenous Australians and refugees in particular, do not attract sufficient support at the ballot box. Not surprisingly, government policies reflect this electoral reality.

Without a bill of rights, minorities and others whose rights are threatened also have limited capacity to trigger horizontal accountability mechanisms for protection. Aside from some exceptional rulings, such as the High Court’s implied rights determinations, Australian judges have generally been reluctant to read the law broadly to incorporate rights.

Further, the Australian Human Rights Commission has a limited mandate. It is also vulnerable to funding cuts and political attacks when government perceives the commission to have overstepped its mark. These deficiencies have become more obvious in recent years with the rise of the “security state”.

Diagonal accountability mechanisms, including a free press and civil society, have been able to flourish in Australia. Even so, there are major limitations to their ability to pursue rights concerns. We have seen increasing media concentration, funding cuts to public broadcasters and the extension of legislative restrictions on civil society.

Such developments reduce the potential for these democratic actors to bring problems to light and inform governments and voters about rights issues.

Unless or until Australians decide to support greater rights protections, whether through constitutional or legislative action, these problems are likely to remain.

Fixing these problems is important. This is not only because human rights are important in themselves, but also because democracy requires a basic level of respect for human rights to function properly.

Ten things Australia can do to protect rights

With Australia becoming a member of the UN Human Rights Council, it is more important than ever that we get our own house in order, if we want to be a model for good democratic practice underpinned by a strong human rights framework.

Having secured a seat at the UN Human Rights Council, Australia needs to get its own house in order.
UN Geneva/flickr

Here’s a start: these ten broad steps are eminently doable. While not covering all the gaps, these will get us a long way toward more robust human rights protection in Australia.

1. Adopt a bill of rights

  • A bill of rights will increase the capacity of minorities and others whose rights are threatened to seek protection from the courts, if and when parliament fails to do so.

2. Protect freedom of speech

  • Reverse funding cuts to public media outlets.

  • Achieve a better balance between security laws and freedom of speech by adding public interest disclosure protections to national security laws.

3. Protect the rule of law and integrity institutions

  • Strengthen the independence of integrity institutions such as statutory officeholders (information commissioners, human rights commissioners). This includes mandating transparent, arm’s length and merit-based selection criteria for appointments to these offices. Stronger statutory guarantees of adequate funding are also needed.

4. Protect the right to vote

  • Strengthen our compulsory voting laws because of their beneficial (yet generally unrecognised) effects on human rights protection, particularly their demonstrated capacity to protect rights such as equality before the law, freedom from discrimination and equal voting power.

  • Continue to support electoral commissions in their efforts to achieve universal or near-universal electoral participation.

5. Protect freedom of association

  • Support the flourishing of civil society organisations by removing restrictive protest laws.

  • Ensure a fair and nonpartisan regulatory framework for funding civil society organisations.

6. Strengthen rights protections for Indigenous Australians

  • Dismantle the intellectual and legal framework that creates barriers to recognising and respecting Indigenous Australians.

  • Be open to Indigenous perspectives and realities and make a genuine effort to right historical wrongs.

  • Strengthen racial discrimination laws to prevent the abuse of the special measures provisions of the Racial Discrimination Act to the detriment of Indigenous Australians.

Australia must not forget that seeking asylum is a human right.
Takver/flick

7. Strengthen rights protections for asylum seekers

  • Uphold human right obligations that are owed to asylum seekers on the presumption that they may well be genuine refugees (as the 1951 Convention on Refugees that Australia has signed requires). This includes closing all offshore processing and detention centres.

  • Promote the human rights of all migrants and their families as Australia’s representatives have promised at UN meetings such as the Global Compact for Refugees and Migrants.

8. Strengthen rights protections for women

  • Improve women’s social and economic rights to enable them to participate fully and equally in Australian society. This includes closing the gender pay gap, increasing access to affordable child care and tackling the poverty facing disadvantaged women including single mothers, Indigenous women, older women, women and girls with disabilities, and women facing domestic violence and sexual harassment in the workplace and community.

9. Strengthen rights protections for poor Australians

  • Implement a policy framework to better uphold our international commitments to protect the economic and social rights of vulnerable Australians. This includes acting on housing affordability and homelessness, protecting vulnerable workers, reducing unemployment and underemployment, and increasing support for the poorest households.

10. Implement marriage equality

  • Honour the outcome of the Marriage Law Postal Survey by legalising marriage equality.

The ConversationHappy Human Rights Day everyone.

Carolien van Ham, Lecturer in Comparative Politics, UNSW; Lisa Hill, Professor of Politics, University of Adelaide, and Louise Chappell, Director of the Australian Human Rights Institute, Professor Law, UNSW

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

Brexit deal breaks deadlock – experts react


Katy Hayward, Queen’s University Belfast; Alan Wager, King’s College London; Brendan Ciarán Browne, Trinity College Dublin; David Phinnemore, Queen’s University Belfast; Feargal Cochrane, University of Kent; Gavin Barrett, University College Dublin; Patricia Hogwood, University of Westminster, and Stijn Smismans, Cardiff University

EU negotiators announced on December 8 that enough progress has been achieved in Brexit negotiations for talks to move on to a second phase – the nature of the future relationship between the UK and the EU. A deal on the Irish border, a major sticking point in the talks, was given the go-ahead by both the EU and UK. Here academic experts explain aspects of the agreement.

The Irish border

Katy Hayward, Reader in Sociology, Queen’s University Belfast

The UK government still seeks a future deal with the EU that brings the benefits of single market and customs union membership without the obligations. This goal set alarm bells ringing in Brussels and Dublin long ago. Its sheer impossibility meant hurtling towards either a “no deal” scenario (in which case the Irish border would become a hard border) or an “ignore the problem” scenario, in which case the border would be a dangerously gaping hole in the top left corner of the single market.

The joint agreement between the UK and EU secures against both these risks. It asserts that the UK seeks to realise its aims of avoiding a hard border between Ireland and Northern Ireland “through the overall EU-UK relationship”. But it then allows that “should this not be possible”, it will propose “specific solutions” to tie up the loose ends.

In the event that there is a failure to find such agreed solutions, the UK will “maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.”

This is such a major concession, of the tail-wags-dog type, that efforts will be concentrated on finding those “agreed solutions” for Northern Ireland – which we can safely assume will be necessary. The Irish question is far from resolved and there are laborious and detailed negotiations to come.

As such, the joint agreement wisely allows for a special strand of the phase two discussions between the EU and the UK to be dedicated to the “detailed arrangements” necessary to give effect to the ambitious commitments to Northern Ireland/Ireland contained here.


Feargal Cochrane, Professor of International Conflict Analysis, School of Politics and International Relations, University of Kent

So there we have it – more constructive ambiguity, which is fitting in terms of the Good Friday Agreement and broader peace process. This agreement can, and is, being read differently by the Irish government and the DUP, which is hardly surprising.

However, the Irish government position is unequivocal and the deal is essentially much the same as the one rejected by the DUP just days previously, certainly in terms of the implications for trade harmonisation in the two parts of Ireland.

The Irish government is clearly convinced that this means there will, in practice, be no need for border checks between the two jurisdictions after the UK leaves the EU.

The DUP, for its part, is reassured that Northern Ireland will be constitutionally aligned with the rest of the UK after Brexit and there will be no air-lock at Great Britain that differentiates Northern Ireland from the rest of the UK. However, the DUP has, at the same time, admitted that the details of how full alignment will work in practice while maintaining NI’s alignment with the rest of the UK require more detailed explanation.

The implication of the wording is that the UK will have to harmonise with Ireland (which, by the way, means the EU). So it’s not entirely clear how the UK is leaving the customs union and single market, other than saying it has left but in practical terms not actually leaving. This might put the wind up some of prime minister Theresa May’s colleagues, who thought Brexit was going to give them their country back.

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It seems like the Irish government has received the guarantee it needed that there will be no visible border in Ireland after Brexit. The UK government and DUP have also bought some time to unscramble how to do this in the next phase of the process.

In essence, while the DUP may choose to dress it up in red, white and blue, it looks like Northern Ireland will be clad in blue and gold for the foreseeable future following this agreement.


Brendan Ciarán Browne, Assistant Professor & Course Coordinator MPhil Conflict Resolution, Trinity College Dublin

Beyond practical realities, symbolically the deal is important. In explicitly dismissing the notion of a hard border on the island of Ireland the negotiating teams have been sensitive to what this could lead to in terms of further political instability in Northern Ireland and the potential for a return to violence.

The hard fought strand in the 1998 Good Friday Agreement focusing on self-determination, that affords citizens born in the north the right to determine as Irish, has undoubtedly been safeguarded as a result of the deal. This allows those in the north who identity as Irish to also remain as European citizens.

By placing the Irish question at the heart of this phase of the negotiations, the EU negotiators realised the symbolic importance of the right to self-determination for citizens in the north. They have also further demonstrated their commitment to upholding the values that are enshrined in the Good Friday Agreement.


David Phinnemore, Professor of European Politics, Queen’s University Belfast

The Irish dimension of Brexit has at last gained the profile it deserves in UK political debate. The assumption that you can leave the EU, its customs union and its single market and avoid any hardening of the Irish border has been exposed as folly.

This is made abundantly clear in the text agreed by the UK and the EU. It commits the UK to regulatory alignment with those EU rules regarding the single market and the customs union that support not just north-south cooperation on the island of the Ireland, but also the “all-island economy” and the protection of the 1998 Good Friday Agreement.

How this is to be achieved has still to be worked out. The same goes for the range of regulations where alignment would be required. Ultimately, if the UK and EU don’t reach agreement on all this when striking a trade deal, the UK has committed to maintaining the “full alignment” necessary. Given the EU’s insistence on respecting the integrity of its own legal order and the UK pledge not to impose a border between Northern Ireland and the rest of the UK, that could in effect mean the whole of the UK staying in the single market and a customs union arrangement with the EU.

The autonomous alignment this entails does not sit well with the “take back control” mantra of many Brexiteers, and that’s before its decided who oversees the eventual arrangement. Whether London can and will deliver remains to be seen.


Gavin Barrett, Professor at the Sutherland School of Law, University College Dublin

With this joint agreement, an unfamiliar concept has found its way into the world’s political lexicon: regulatory alignment. It seem innocuous but don’t be fooled. Regulatory alignment will be the terrain on which Brexit’s ultimate shape will be determined.

The British prime minister, Theresa May, effectively needed Ireland’s assent to move to phase two of Brexit negotiations. Ireland wanted protection against any prospect of renewed controls on the Northern Irish frontier. The result was article 49 of the agreement, promising Ireland that the UK will “maintain full alignment” with the customs union and those internal market rules supporting Ireland’s all-island economy, cooperation and the 1998 Good Friday Agreement. But to please the DUP, article 50 of the agreement nonetheless promises Northern Irish businesses “unfettered access” to the UK single market.

For hardline eurosceptics such as Jacob Rees-Mogg, the ability to diverge from EU regulations in pursuit of international trade deals is an “indelible” red line in Brexit talks. Pleasing them, May still insists the UK will leave both the customs union and the single European market.

These three commitments seem impossible to square – unless the UK does one of three things, each of which anger somebody. First, it angers Eurosceptics by recreating the present EU customs union with another similar EU-UK customs arrangement and by mirroring most single European market rules. Second, it angers the DUP by introducing customs controls on Northern Ireland, while keeping Northern Ireland in the UK’s single market, like a little Norway to the EU’s single market. Or, third, it angers Ireland by giving “full alignment” much less significance than Ireland thinks it has.

It is an impossible trilemma. Something has to give. But that is for another day. For now May’s government, and the truly lunatic escapade that is Brexit, hurtle onwards.


Citizens’ rights

Stijn Smismans, Professor of European Law, Director of the Centre for European Law and Governance, Cardiff University

EU citizens in the UK and British citizens in Europe remain in a lot of uncertainty following the deal on the first stage of Brexit negotiations.

There is some progress in the Joint Agreement on the status and rights people will hold once they have obtained what’s called “settled status”, particularly in relation to family reunion and their acquired social security rights. However, this is far from a guarantee protecting their current rights.

Settled status will not be as protective as the current status of permanent residence. Even people who already hold permanent residence could be deported more easily on grounds of criminality, which goes beyond the restrictive criteria on when EU citizens can be deported that the EU currently allows.

The main problem is that the criteria and checks for registration to get “settled status” remain unclear. Neither is it clear which documents people will need to provide as proof. The previous application system for permanent residence for EU citizens led to nearly 30% of applications being rejected. If similar criteria are applied, such as applicants needing to prove being in work or having sufficient resources to live on, the consequences would be dramatic.

The agreement promises a simplified registration system but does not explain how this will be organised. Neither the criteria for application nor the way in which the online system could reach those most vulnerable are explained.

EU citizens have been promised to have their status guaranteed for life – but the proposal that the EU Court of Justice would lose its control powers over this after eight years undermines that principle.


How Europe reacted

Patricia Hogwood, Reader in European Politics, University of Westminster

The first reactions from Europe to the deal were predictably anodyne. Donald Tusk, president of the European Council, gave all the credit for the breakthrough to Theresa May. While this flatters the prime minister, it also serves the main aim of the European institutions and leading member states – to prop up May’s failing government long enough to conclude a viable Brexit deal.

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The Dutch prime minister has declared that he is “happy” that the talks can move on. Only a few have dared to prod the gap between the constructive ambiguity of the statement and the problems that will arise in translating it into an acceptable political compromise in practice. Sven Giegold, a German MEP, has branded the deal a “fake compromise” and claimed that regulatory alignment won’t be enough to avoid a hard border.


What happens now?

Alan Wager, Research Associate, The UK in a Changing Europe at King’s College London

This agreement looks like a political fudge that tells us very little, but keeps the show on the road. In fact, it’s the opposite. We now have a much clearer idea of what Brexit will look like. But, as a result, its political shelf life is limited.

Brexit means “full alignment” – putting the UK firmly in the EU’s sphere of influence when it comes to rules on trade. The Brexit choice at this stage can be boiled down to two different paths: one that continued to hug the EU27 close and remain in their trading sphere of influence, and another that returned “British laws” to the UK and facilitated expansive global trade deals. The first path is looking a lot more likely.

The key issue – how to leave the EU’s frameworks, while not hardening the Irish border – remains unresolved. This is because it is an intractable logical problem that cannot be meaningfully resolved. So the UK will, in any meaningful sense, remain subject to these rules and regulations. The question is, once all this comes out in the wash, whether this softer form of Brexit will still be sellable to Theresa May’s party.

The ConversationLeading Brexit figures such as Boris Johnson and Michael Gove, sensing in the lead up to this crunch point that the Brexit process could have stalled, have rediscovered the joys of collective cabinet responsibility. But, in the new year, this could come to look less like a fudge, and more like one of those leftover stale mince pies: no one wants it, and harder than it looks.

Katy Hayward, Reader in Sociology, Queen’s University Belfast; Alan Wager, Research Associate, The UK in a Changing Europe at King’s College London, King’s College London; Brendan Ciarán Browne, Assistant Professor & Course Coordinator MPhil Conflict Resolution, Trinity College Dublin; David Phinnemore, Professor of European Politics, Queen’s University Belfast; Feargal Cochrane, Professor of International Conflict Analysis, School of Politics and International Relations, University of Kent; Gavin Barrett, Professor at the Sutherland School of Law, University College Dublin; Patricia Hogwood, Reader in European Politics, University of Westminster, and Stijn Smismans, Professor of European Law, Director of the Centre for European Law and Governance, Cardiff University

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

What Migingo, the world’s tiniest disputed island, tells us about international law



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Ugandan fishermen pull in their nets at dawn in Lake Victoria, which is shared between Uganda, Kenya and Tanzania.
Reuters/Euan Denholm

Christopher R. Rossi, University of Iowa

For as far back as anyone could remember, Migingo was nothing more than an uninhabited pinprick on Lake Victoria. One of three small islands in the eastern waters that make up an island chain, Migingo is barely the size of half a football pitch. It measures about one-half acre or about two thousand square metres.

In 2001 resourceful fishermen began using Migingo as an offshore weigh station. The islet just happened to be more habitable than the steeply sloped adjoining islets. And because the fishermen earned three to four times in a day what shore-based fishermen could earn in a month, word soon spread that Migingo’s geographic location made it ideally suitable to hunt the Nile perch.

The Nile perch, locally known as mbuta, is one of the most invasive and best studied species in history. This devastating piscavore, probably introduced by Uganda in the 1950s, is rapidly turning Lake Victoria into an Anthropogenic problem. But there is no doubting the economic value it generates as a much sought-after dinner item in European restaurants and in expanding worldwide markets.

The islet quickly became a micro slum, housing hundreds of people, including pirates and smugglers. It also sparked for the first time competing claims by Uganda and Kenya over who owns Migingo. Both countries claim it is theirs.

The debate about Migingo’s fate has been fuelled by the perceived imbalance in the Nile perch trade – Kenya owns 6% of Lake Victoria but dominates the perch trade while Uganda owns 43% but harvests less than half of Kenya’s catch. An added complication was the 2006 discovery of commercially viable oil deposits across the East African Rift System. An oil find could potentially straddle the disputed demarcation line.

The dispute has become intractable, despite bilateral and multilateral discussions. A series of aggressive encounters between Ugandan marines and Kenyan police have brought the parties to the brink of violence while eight years ago Kenyan rioters uprooted landlocked Uganda’s rail link to the Kenyan port of Mombasa. This disruption in turn affected the commercial interests of, among others, Rwanda, Burundi and eastern Democratic Republic of Congo.

Characterisations of the dispute as small do no justice to the importance of the international legal issues at play. Migingo intertwines issues of ethnicity, nationality, and politics around the competing temptations of a resource. But it also serves as an example of the lingering effects of uti possidetis,

a principle of international law, which provides that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence.

This principle reinforced the work of British imperial line drawers who reshaped the landscape of this region through cartographic shortcuts and a 1926 British Order in Council.

A brutal principle

Uti possidetis has been described as an important building block of the state system. This is because it emphasises stability, finality, and respect for territorial borders. The World Court places it among the most important legal principles.

But it is a brutal principle. It requires that states emerging from decolonisation essentially inherit the borders they received at the time of independence. The presumption is that territorial title freezes, like a photographic snapshot, at the moment of independence, regardless of how arbitrary the borders may be.

Migingo’s problem boils down to a difference of opinion between Uganda and Kenya about the ‘snap shot’ used to draw the line demarcating the border. Add to this the fact that the British took the photo a long time ago, and its camera may have been out of focus.

Out of focus or not, the international doctrine aided the project of African statecraft by settling, or at least forestalling, disputes over porous borders. It allowed African elites to consolidate power. Indeed it has informed the Charter of the Organisation of African Unity, the African Union’s Constitutive Act, and the 1964 OAU Cairo Declaration.

But the costs associated with this blunt instrument of international law remain substantial. It leaves Africa with a forced coincidence of borders among many states. Africa’s tiniest border dispute of Migingo is a metaphor for the pressures now associated with areas of conflict affecting Africa’s great hydrographic catchments.

Colonial cartography, like the entire nineteenth century Scramble for Africa begun at the Berlin Conference, was done with little regard for human geographies or the overlapping realities.

Even more problematic was the decision taken later by the British to remove the Eastern Province of the Ugandan Protectorate to the East African Protectorate. This placed a huge portion of the Rift Valley in what would become Kenya. The rationale for this line drawing was to keep within one administrative jurisdiction the 960km railway connecting Mombasa on the Indian Ocean to the northeast corner of Lake Victoria. But inserting a geographic line of convenience to accommodate railroad administration created a human geographic chaos of its own.

Where the line falls

Some evidence suggests that Migingo was the generic name of the undifferentiated island chain which only later differentiated the two other islets. These are Ugingo, which lies 660 feet east of Migingo, and Pyramid Island, 2km south of Migingo. Ugandan surveyors claim that Ugingo is actually Pyramid Island, because it is shaped like a pyramid. This finding would put Migingo inside Uganda by a matter of meters.

Uganda’s President Yoweri Museveni was said to have suggested that Migingo was located in Kenya’s water but he claims he was misquoted. Even if this were indisputably so, much of the Kenyan catch of Nile perch may derive from illegal fishing activity in Ugandan waters.

Evidence suggests the perch breed off Kenya’s shallow littoral and migrate into deeper waters around Migingo. Where the line falls between Uganda and Kenya in Lake Victoria will have little effect on the need for a managed solution. This would necessarily also involve Tanzania, and require cooperation, which is lacking.

Problems facing the Lake Victoria catchment directly affect the livelihood of 30 million people. Efforts to promote the sustainable development of the lake now involve an array of international organisations, specialised institutions of the East African Community, and Rwanda and Burundi as part of a more sensitive environmental understanding of the lake catchment region.

The small geographic size of the Migingo dispute belies the grave political consequences of inaction, making Migingo a metaphor for African resolve in the Anthropocene.

The ConversationThe author’s in depth analysis of the Migingo dispute has just been published in the Brooklyn Journal of International Law

Christopher R. Rossi, Lecturer in international law, University of Iowa

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

Labor wins a majority in Queensland as polling in Victoria shows a tie



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Annastacia Palasczuk will be able to form majority government after the final results of the Queensland election were announced.
AAP/Jono Searle

Adrian Beaumont, University of Melbourne

At the Queensland election, held on November 25, the size of parliament was increased from 89 seats to 93. Comparing this result with 2015, Labor officially won 48 of the 93 seats (up four), the Liberal National Party 39 (down three), Katter’s Australian Party (KAP) three (up one), and One Nation, the Greens and an independent won one seat each.

With 45 seats held by parties other than Labor, Labor has won a three-seat majority.

Adjusted for the new boundaries and excluding defections, the 2015 results gave Labor 48 seats and the LNP 43. Using this interpretation, there was no net change for Labor, while the LNP lost four seats.

Labor gains from the LNP in Gaven, Aspley and Redlands were countered by losses in Bundaberg, Burdekin and Mirani (to One Nation). The LNP also lost Maiwar (to the Greens), Hinchinbrook (to KAP) and Noosa (to an independent). This is the first Greens elected MP in Queensland.

Townsville was expected to be very close, but Labor won it by 214 votes (50.4-49.6), clinching its 48th seat.

The LNP’s decision to recommend preferences to One Nation in 50 of the 61 seats it contested gave One Nation a win in Mirani, but cost independent candidate Margaret Strelow in Rockhampton. Had LNP preferences in Rockhampton flowed to Strelow instead of One Nation, Labor would have very probably lost, instead of retaining it 55-45 against One Nation.

Final primary votes were 35.4% Labor (down 2.1 since 2015), 33.7% LNP (down 7.6), 13.7% One Nation (up 12.8), 10.0% Greens (up 1.6), and 2.3% KAP. This is the Greens’ highest primary vote in a Queensland election.

One Nation contested 61 of the 93 seats, and won 13.7% of the statewide vote. Had it contested all seats, it would probably have won about 18%. Only the single member system stopped One Nation from winning much more than its one seat.

If the Queensland result were replicated at a half-Senate federal election, in which six senators are up for election, Labor would win two seats, the LNP two, One Nation one, and the last seat would probably go to the Greens.

Pauline Hanson received a long Senate term, which does not expire until June 2022. If Malcolm Roberts is the top One Nation candidate on its Queensland Senate ticket at the next federal election, he will probably win a six-year term starting July 2019.

Turnout was 87.5%, down 2.4 points since 2015. Automatic electoral enrolment has increased the size of the electoral roll, but many of those who are now enrolled do not vote, so the turnout falls.

The informal rate was 4.3%, up from 2.1% in 2015, owing to the change to compulsory preferential voting from optional preferential. The informal rate was below Queensland’s informal rate (4.7%) at the 2016 federal election.

Victorian Galaxy: 50-50 tie

A Victorian Galaxy poll for the Herald Sun (paywalled link), conducted on December 6 from a sample of 828, had a 50-50 tie, a three-point gain for Labor since a Galaxy in June for an unidentified source.

Primary votes were 41% Coalition (down three), 36% Labor (up three), 10% Greens (up two) and 6% One Nation (up one).

Premier Daniel Andrews had a 49% dissatisfied, 35% satisfied rating. Opposition Leader Matthew Guy had a 48% dissatisfied rating, with no satisfied rating given. Andrews led Guy 41-25 as better premier (41-29 in June).

By 58-20, voters favoured building the East West Link, and by 57-30, they thought the decision to cancel it was bad rather than good. The Liberals were thought better to manage the economy by 48-33 over Labor – an area of perceived Coalition strength.

77% of regional voters believed they are being dudded in favour of Melbourne on government spending.

Tasmanian EMRS: 34% Liberal, 34% Labor, 17% Greens, 8% Lambie Network

A Tasmanian EMRS poll, conducted between December 1 and December 5 from a sample of 1,000, gave the Liberals 34% (down three since August), Labor 34% (steady), the Greens 17% (up one) and the Jacqui Lambie Network (JLN) 8% (up three). The next Tasmanian election is likely to be held in March 2018.

As EMRS is skewed to the Greens and against Labor, Kevin Bonham interprets this poll as 37.5% Labor, 35.5% Liberal, 14% Greens and 8% JLN. The most likely seat outcome under Tasmania’s Hare-Clark system would be ten Labor, ten Liberals, four Greens and one JLN, out of 25 total seats.

Labor’s Rebecca White led incumbent Will Hodgman as better premier 48-35 in this poll (48-37 in August). White had a net +40 favourable rating, Hodgman a net +13, and Greens leader Casey O’Connor a net negative five.

Essential 55-45 to federal Labor

This week’s Essential moved a point to Labor, in contrast to Newspoll. Labor led 55-45, from primary votes of 38% Labor, 35% Coalition, 9% Greens, 8% One Nation and 2% Nick Xenophon Team. Essential uses a two-week sample of about 1,800, with additional questions based on one week.

64% thought there was a lot or some sexism in the media, 60% in both politics and advertising, 57% in workplaces, 56% in sport, and 48% in schools. Since January 2016, there have been one-to-four point falls in perception of sexism in politics, advertising, workplaces and sport, but a six-to-eight point increase in media and schools.

By 51-24, voters thought that MPs who defect from the party they were elected to represent should be forced to resign from parliament. By 54-25, voters preferred a government where one party has an overall majority to a coalition arrangement.

By 38-34, voters thought the Liberal and National parties should continue in coalition, rather than separate and become more independent; however, Coalition voters preferred the Coalition arrangement 73-13.

Essential’s Liberal leadership question had six choices: Malcolm Turnbull, Tony Abbott, Julie Bishop, Christopher Pyne, Scott Morrison and Peter Dutton. Turnbull had 21% (down four since August), Bishop 19% (down one), Abbott 10% (steady), Dutton 4% (up one) and Pyne and Morrison each had 2%.

Among Coalition voters Turnbull led Bishop 40-20, with 13% for Abbott.

Alabama Senate byelection next Wednesday (Melbourne time)

In February, Jeff Sessions resigned from the US Senate to become Donald Trump’s attorney-general, and the Alabama governor appointed Luther Strange to the Senate until the election was held. The election will be held on December 12, with results from 12 noon on December 13 Melbourne time.

I previously wrote about Republican candidate Roy Moore’s alleged sexual encounter with a 14 year-old girl when he was 32.

After this and other similar allegations were made, Democratic candidate Doug Jones took a poll lead. However, Moore appears to have recovered, and analyst Harry Enten says he leads by about three points. If the polls are overstating Moore by a modest margin, he could lose.

The ConversationAlabama is a very conservative state that Trump won by 28 points at the 2016 election. That this contest appears competitive is surprising.

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

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

Queensland finally has a government, but the path ahead for both major parties looks rocky



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This is not the clear-cut election result Annastacia Palaszczuk and Labor hoped for.
AAP/Glenn Hunt

Chris Salisbury, The University of Queensland

After going to the polls on November 25, Queenslanders finally have a state election result as Liberal National Party leader Tim Nicholls conceded defeat on Friday.

Following a four-week campaign, votes were counted for almost a fortnight until Annastacia Palaszczuk’s Labor Party was confirmed the victor. Palaszczuk is the first female premier to win back-to-back elections. In 2015, she’d become the first woman at state or federal level to lead her party to government from opposition.

But it’s not the clear-cut result Palaszczuk desired. Labor appears to have won 48 seats in the 93-member parliament to the LNP’s 39. This leaves Palaszczuk’s returned government with a slim majority and a diverse crossbench.

A complex contest

With a record field of candidates in an expanded number of electorates – many with redrawn boundaries – this shaped as a complicated election. Adding to its unpredictability was the reintroduction after 25 years of compulsory preferential voting.


Further reading: With One Nation on the march, a change to compulsory voting might backfire on Labor


While two-party-preferred swings were generally not as large as at the last two state elections, overall figures showed a fragmented statewide vote. More than 30% gave their first preferences to minor parties and independents. This exceeded the One Nation-driven protest vote in 1998.

This continues the trend of a declining primary vote for the major parties. Combined with compulsory preferencing, several electorate contests duly developed into three- or even four-horse races, extending the time needed to correctly distribute preferences and declare results. Some seats were decided only after the arrival of postal votes, up to ten days after the polling date.

Like the previous Queensland and federal elections, a close and protracted count left the government in extended caretaker mode. Voters in Queensland and the rest of Australia may need to accustom themselves to a new norm of tight, drawn-out contests, where party leaders’ election night speeches might be obsolete.

Winners and losers

Labor went into the election with a notional seat count of 48 following the redistribution. Despite a 2% decline in its statewide vote, it emerges with little change in its electoral stocks.

Gains in the state’s southeast corner at the LNP’s expense offset a few seat losses in central and north Queensland, where persistent unemployment has been a worry.

To the government’s relief, every cabinet member held their seat. Deputy Premier Jackie Trad survived one of the stronger challenges, a 10% two-party-preferred swing to the Greens in South Brisbane. Brisbane’s inner suburbs, as in other state capitals, are now highly vulnerable to a rising green tide.

The LNP suffered a negative swing of almost 8% – and even higher in parts of the southeast. High-profile casualties included shadow frontbenchers Scott Emerson, Ian Walker, Tracey Davis and Andrew Cripps in the north falling victim to erratic preference flows.

Emerson has the distinction of losing the newly created seat of Maiwar in inner Brisbane to Queensland’s first elected Greens MP, Michael Berkman.

In other firsts, Labor’s new member for Cook in far-north Queensland, Cynthia Liu, is the first Torres Strait Islander elected to any Australian parliament. Innovation Minister Leanne Enoch becomes the state’s first Indigenous MP to be returned at an election.

One Nation’s Stephen Andrew, who defeated veteran Labor MP Jim Pearce in Mirani in central Queensland, becomes the first descendent of South Sea Islander labourers to enter state parliament.

Decisive issues

Besides bread-and-butter issues of job creation, power prices and transport infrastructure, neither Palaszczuk nor Nicholls could escape the dominant themes of this election. The proposed Adani coal mine project animated voters in different parts of the state for different reasons, as did the spoiler role that Pauline Hanson’s One Nation was presumed to play.

Together, these factors reinforced an impression of “two Queenslands” in contention during the campaign.


Further reading: Adani aside, North Queensland voters care about crime and cost of living


Protests against the Adani mine’s environmental impact – and questions over its long-term economic benefit to regional communities – featured regularly once the election was called. Palaszczuk succeeded in defusing the issue to some extent early in the campaign with an abrupt declaration that she would veto federal infrastructure funding for the mine’s construction.


Further reading: Why Adani may still get its government loan


A feared backlash in places of regional discontent and high youth unemployment, like Townsville, didn’t entirely materialise, with Labor incumbents holding seats against expectations. But these concerns, in tandem with uncertainty over the Adani project, saw Labor lose Bundaberg and nearly lose the traditionally Labor-voting Rockhampton to independent candidate and former mayor Margaret Strelow.

The LNP’s position on supporting the Adani mine with public funds, and Nicholls’ prevarication over dealing with One Nation, appear to have hurt the party in Brisbane especially. But so too did Labor reminding voters of Nicholls’ role as treasurer in the Newman government.

As the election neared, Nicholls was swamped by constant questioning about cosying up to One Nation.

While always difficult to quantify, the federal Coalition government’s woes amid the same-sex marriage debate and citizenship fiasco likely did the LNP few favours.

Role of the minor parties

The Greens and One Nation capitalised on the dip in major party support, gaining significant vote shares of 10% and almost 14% respectively. However, each party won only a single seat.

Critically, both parties stripped valuable primary votes from Labor and the LNP, especially the latter’s vote in the regions. This will furrow the brows of federal Coalition MPs through this term of government. For good measure, One Nation preferences likely helped unseat some LNP MPs in the southeast.

The party’s state leader, Steve Dickson, lost out to the LNP in Buderim, while Senate outcast Malcolm Roberts didn’t present a serious threat to Labor in Ipswich.

Despite its failings, One Nation attracted more than 20% in the seats it contested and finished runner-up in two dozen of them, perhaps largely down to Hanson’s constant presence throughout the campaign.

Katter’s Australian Party (KAP), though standing candidates in only ten seats and not making much impact on the campaign, might have done best of all the minor parties. Its primary vote improved to more than 2%, gaining it another seat in Hinchinbrook on Labor and One Nation preferences.

KAP’s targeted approach might prove unwelcome news for the federal Coalition, which can expect similar levels of focused disaffection from conservative regional voters elsewhere. But a fragmenting primary vote spells trouble for all the major parties.

What next for Queensland?

Queensland now enters its first fixed-term period of government. The next election is due on October 31, 2020, with four-year terms following that.

Labor holds only 13 of 51 seats outside the Greater Brisbane area. With all seats decided, factional negotiations will now unfold to determine the make-up of Palaszczuk’s new cabinet. It’s fair to assume it will be Brisbane-centric.

With such a concentration of government MPs in the capital, Palaszczuk’s team will presumably clock up many kilometres – and spend some political capital – reassuring the regions they’re not forgotten.

In the wake of an underwhelming result for the LNP, Nicholls announced he is stepping down as party leader and won’t contest a leadership ballot early next week. The likes of David Crisafulli or Tim Mander, or potentially Deb Frecklington, loom as Nicholls’ likely successors.

Party insiders have complained that the election result proves the marriage between the formerly separate Liberal and National parties in Queensland has failed and should be broken up.


Further reading: Queensland Liberals and Nationals have long had an uneasy cohabitation, and now should consider divorce


The ConversationThe road ahead for both major parties will be anything but easy.

Chris Salisbury, Lecturer in Australian Studies, The University of Queensland

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

Grattan on Friday: Bill Shorten faces a summer of uncertainty


Michelle Grattan, University of Canberra

It is not impossible that the Greens, who started the citizenship crisis with the resignation of then-senator Scott Ludlam, could end up winners from this fiasco that has cut a swathe through the parliament and threatens more havoc.

Wednesday’s reference to the High Court of Labor’s David Feeney, who holds the Melbourne seat of Batman, has certainly put a gleam in the Greens’ eyes.

Feeney hasn’t been able to produce the documentation to confirm the renunciation of British citizenship which he says he made a decade ago.

Unless the paperwork turns up or the High Court shows a leniency that hasn’t been in its nature recently, a byelection in Batman would give the Greens a big chance of installing a second MP to keep Adam Bandt company in the House of Representatives.

Bill Shorten is understandably livid about Feeney, who before the last election overlooked declaring a A$2.3 million house, only narrowly held off the Greens in his seat, and now, if he triggers a byelection, could reduce the opposition’s numbers. No wonder there’s speculation he’d be ditched as Labor’s candidate.

And Feeney’s rank carelessness, to describe it most charitably, comes on top of the recent new revelations about Labor senator Sam Dastyari’s conduct, showing how deeply the New South Wales numbers man has been in the thrall of the Chinese, in particular of a Chinese business benefactor.

It’s made for a very uncomfortable end to the parliamentary year for Shorten, who in previous months had most things breaking his way.

The citizenship crisis had taken a heavy toll on the government, with a minister and the Senate president gone from parliament, and the deputy prime minister and a Liberal backbencher forced to byelections.

To put things in perspective: yes, they all failed to do due diligence, but none of them compromised themselves in the way Dastyari did.

Now it’s Labor in the crosshairs. The situation of several of Shorten’s MPs – leaving aside the egregious case of Feeney – is problematic, and Shorten’s boast about Labor vetting processes is being seen as hubristic.

It will be months before Labor will know what damage the citizenship crisis might do to it.

It will be more contained if the High Court, when it considers the case of ACT senator Katy Gallagher who was also referred this week, accepts the ALP argument that an MP is constitutionally eligible provided they took reasonable steps to renounce foreign citizenship before nominating, even though confirmation didn’t come through by then.

If, however, the court were to find that the candidate needs the confirmation before they nominate, that could trigger byelections in three ALP seats (Braddon in Tasmania, Longman in Queensland and Fremantle in Western Australia) as well as in Mayo, held by crossbencher Rebekha Sharkie.

The Gallagher case will set a precedent for the other MPs with similar circumstances (although if Gallagher were knocked out her Senate position would be filled by a countback, not a byelection).

While byelection swings usually go against governments (Saturday’s result in New England notwithstanding), the thought of having to fight in the marginal seats of Longman and Braddon would make Labor nervous.

Even if it turned out that the only byelection were in Feeney’s seat, the strong prospect of a loss there would sour and distract Shorten’s new year.

Similarly, the extent of the fallout from the Dastyari affair is not yet clear.

There is no defence for Dastyari’s action in warning his Chinese benefactor that his phone was likely tapped, so they should talk outside. That was the core of the latest revelations, which came on top of earlier ones about Dastyari receiving financial largesse and toeing China’s policy line on the South China Sea.

But from Shorten’s point of view, dealing with the Dastyari issue is fraught.

All Shorten has done this time is strip him of what minor responsibilities he had.

It’s fanciful to think Shorten would ever contemplate trying to throw him out of the Labor Party, which would mean taking on the NSW right, and would reduce Labor’s Senate numbers.

But while Dastyari stays, Shorten is open to Coalition attacks and hostage to anything further that may come out – just when the government is cracking down on attempts by foreign interests to influence Australian politics. Dastyari might face an inquiry by the Senate privileges committee.

It would be a gift for Shorten if Dastyari were to decide rehabilitation is too long a road and he should look for other career opportunities.

The problems that Shorten currently faces highlight certain weaknesses that his critics identify in his political approach.

The citizenship issue shows the way he plays the tactical game relentlessly, with insufficient appreciation of how things can come back to bite you.

Of course Labor would make the most of the government’s embarrassment over its dual citizens, but Shorten left himself little wriggle room when he insisted for so long Labor was fireproofed, despite warning signs it mightn’t be.

When its vulnerability was exposed this week, Shorten doubled down. After all MPs’ declarations became public, Shadow Attorney-General Mark Dreyfus produced a list of Coalition members who Labor said hadn’t supplied enough evidence that they were not dual citizens. One was Josh Frydenberg, whose mother had been fleeing persecution. Frydenberg’s inclusion in the Dreyfus list brought rebukes from two Labor MPs.

This was followed by Labor’s unsuccessful attempt to refer four Liberals (not including Frydenberg) to the High Court, as well as four of its own and Sharkie.

The move on the Liberals looked like seeking cover, especially when one of them, Nola Marino, produced a letter from Italian authorities saying she did not have Italian citizenship.

Surely it is adequate to rely on a country’s word that someone is not a citizen? Certainly Labor’s deputy leader Tanya Plibersek is using a letter from Slovenian authorities.

The Dastyari affair raises questions about how far Shorten is willing to go for those who are politically important to him.

Dastyari had to leave the front bench after the initial revelations about his Chinese links.

But within months he was given a partial leg up, becoming deputy opposition whip in the Senate. This seemed undue haste, and it raises concerns about Shorten appearing beholden to his allies. We see another example in his refusal to take a tougher line towards the Construction, Forestry, Mining and Energy Union.

Despite the setbacks, Shorten is still very well-placed, compared with Turnbull, as the end of 2017 approaches, although the December 16 Bennelong byelection will play into this balance.

The ConversationNevertheless, it is Shorten, rather than Turnbull, who appears to face the bigger uncertainties in the early part of 2018.

https://www.podbean.com/media/player/xac9s-7e77c6?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

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



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Australia is among the one-third of countries that allow foreign political donations.
AAP/Mick Tsikas

Yee-Fui Ng, RMIT University

The government has announced a suite of reforms targeting foreign interference and espionage in Australia’s political process. This will include a bill imposing a ban on political donations from foreign bank accounts, non-citizens and foreign entities.

The ban will apply broadly – not just to political parties and parliamentary candidates, but also to trade unions and advocacy groups such as GetUp!.

These proposed reforms follow revelations that Labor senator Sam Dastyari had warned Chinese Communist Party-linked donor Huang Xiangmo that his phone might be tapped by intelligence agencies. Both the Labor and Liberal parties have benefited from donations by Huang to the tune of almost A$3 million since 2012.

But it’s not just foreign donations that can skew the system. If the government is serious about restoring faith in our politics and politicians, there’s much more to be done.


Further reading: Green groups and charities could be collateral damage in government’s foreign donation ban


Why ban foreign donations?

The rationale for banning foreign donations is to stop the threat of foreign interests undermining Australian democracy. The concern is that foreign people or entities could exercise an unduly large influence on our politicians through generous donations.

Internationally, Australia is among the one-third of countries that allow foreign political donations. This is in contrast to comparable liberal democracies that ban foreign donations, such as the UK, US and Canada. New Zealand caps them at NZ$1,500.


Further reading: FactCheck Q&A: Is Australia one of the few countries worldwide to accept foreign political donations?


Banning foreign donations will certainly reduce the ability of foreign people and entities to influence Australian policy and decision-making. In turn, this will reduce both actual corruption and the perception of corruption in politics. Ultimately, this may improve public confidence in the Australian political system.

But is this ban too broad?

The proposed reforms follow the recommendations of a Senate committee majority that foreign citizens and entities be banned from making donations to political parties, associated entities (such as trade unions and dedicated fundraising bodies), and third parties (such as GetUp! and other campaign groups).

Labor and the Greens supported a ban on foreign political donations to political parties and their associated entities, but rejected extending it to third parties. They argued that banning foreign donations to third parties would restrict the capacity of NGOs to draw attention to their causes, and endanger robust public discourse by civil society.

There may be constitutional issues with such a broad ban on foreign political donations. For instance, banning donations to advocacy groups may be found to stifle the implied freedom of political communication protected by the Australian Constitution.


Further reading: Banning foreign political donations won’t fix all that ails our system


Advocacy groups are one step removed from being able to directly change government policies and decision-making. It may be disproportionate to ban these groups from raising funds to robustly debate controversial policies.

And will this fix the system?

If ruled constitutional, a ban will certainly reduce the impact of overseas interests on domestic policy.

But the proposed ban is both too broad and too narrow. It is too broad because it may stifle legitimate public debate by targeting activist groups. It is too narrow because it does not capture all donations that might corrupt our political system.

Foreign donations are but one element of influence in our political system. The rhetoric on donations to date has focused on the fear of foreigners – the Chinese, in this case – exercising undue influence on Australian politics.

Yet, in 2015-16, foreign donations were a paltry 2.6% of total donations to political parties. In the last seven election periods from 1998-99 to 2016, foreign donations have amounted to between 0.03% and 6.13% of all donations.

Donations from rich Australians, unions or corporations can also influence our politicians to behave in corrupt ways. There have been concerns over donations by big business influencing mining, alcohol or gambling policy. Large donations have been followed by government decision-making that benefited these industries.

Caps on political donations of, say, A$1,000 that apply to all individuals, unions and corporations would better level the playing field. New South Wales already has caps on political donations of A$5,800 per party and A$2,500 for candidates. The state also bans donations from property developers and those in the tobacco, liquor and gambling industries.

Victoria has announced that it will implement a cap on donations by individuals, unions and corporations of $4,000 over a four-year parliamentary term.


Further reading: Victoria gets serious on its political donations rules – now it’s the federal government’s turn


The ConversationThe Australian government has started to take action to reduce the pernicious influence of money on our democracy. But more needs to be done to restore faith in our political system.

Yee-Fui Ng, Lecturer, Graduate School of Business and Law, RMIT University

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

Nationals elect Bridget McKenzie as new deputy



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Bridget McKenzie beat several other candidates in the race for the Nationals’ deputy leadership.
AAP/Lukas Coch

Michelle Grattan, University of Canberra

The Nationals have elected Victorian senator Bridget McKenzie as deputy leader to replace Fiona Nash, who was disqualified from parliament by the High Court.

The win will propel McKenzie, 47, from the backbench into the cabinet when Malcolm Turnbull announces a ministerial reshuffle after the December 16 Bennelong byelection.

Promoted by cabinet minister Darren Chester, also from Victoria, McKenzie beat several other candidates, including Resources Minister Matt Canavan, a cabinet member.

This is the second consecutive time the party has chosen a female senator as deputy leader.

The Nationals have had five spots in cabinet and there has been some talk about whether the loss of Nash from the party’s parliamentary numbers will affect their entitlement, which is based on an arithmetic formula.

But Nationals sources say the arithmetic can be cut more than one way, depending on what date is used for comparison, and also that Malcolm Turnbull and Barnaby Joyce will not want to disturb the Coalition relationship.

Joyce’s strong win in the New England byelection on Saturday provided Turnbull with a fillip going into the final week of parliament. Joyce was sworn back into parliament on Wednesday and his vote ensured Labor failed to be able to refer a “job lot” of MPs, including four Liberals, to the High Court.

The euphoria surrounding the byelection win has soothed some Coalition tensions, including over the rebel Nationals forcing the government’s hand last week to set up a royal commission into the banks.

Much interest in the coming reshuffle will centre on George Brandis. After months of speculation that Brandis would leave parliament, the attorney-general, who has recently performed well after earlier political missteps, said this week he intended to stay.

It earlier had been an open secret that Turnbull saw the likely departure of Brandis as an opportunity to elevate Mathias Cormann, now deputy Senate leader and a conservative ally of Turnbull, to Brandis’ position of Senate leader.

The ConversationBrandis has recently been active in asserting the positions of the Liberal moderates; he has been a vocal backer of the same-sex marriage legislation, which is set to pass on Thursday.

https://www.podbean.com/media/player/xac9s-7e77c6?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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

High Court to rule on two Labor MPs, but partisan row protects others


Michelle Grattan, University of Canberra

A batch of MPs escaped being sent to the High Court on Wednesday thanks to a stalemate between the government and the opposition over who should be referred.

But the eligibility of two Labor MPs will be considered by the court – Victorian David Feeney and ACT senator Katy Gallagher.

The opposition failed in an attempt to get a “job lot” of MPs referred that included four Liberals, four from the ALP, and the Nick Xenophon Team’s Rebekha Sharkie.

The ALP motion was supported by all five crossbenchers, resulting in a tied vote of 73-73. The Speaker, Tony Smith, acting in line with parliamentary convention, used his casting vote to defeat the motion.

The government, insisting that none of its MPs should be referred, wanted the members considered individually.

But crossbenchers rejected that argument, seeing it as the government being partisan.

The government said it would continue to talk to the crossbenchers overnight but they are not likely to be swayed before parliament rises this week for the summer recess.

The Labor MPs in the opposition motion were Justine Keay, Josh Wilson, Susan Lamb and Feeney.

The case of Gallagher – who took action to renounce her British citizenship but did not get registration of her renunciation before she nominated for the 2016 election – should provide guidance in relation to the three other Labor MPs and Sharkie, who have similar circumstances.

Labor argues that those who had taken reasonable steps to renounce but did not receive their confirmations in time (or, in Lamb’s case, at all) are eligible.

Feeney is in a different category from the other Labor MPs – he has not been able to provide evidence that he renounced his British citizenship in 2007, as he says he did. He was referred after the job-lot motion’s defeat.

Both Gallagher and Feeney accepted they should be referred. Gallagher, while maintaining her eligibility, told the Senate she was standing aside from her frontbench positions and had asked to be referred to the court, saying her opponents would continue to use the issue.

Labor said the four Liberals – Jason Falinski, Julia Banks, Nola Marino and Alex Hawke – had not provided adequate documentation of their eligibility.

In the run up to the vote, Marino released advice from the Italian consulate saying she was not an Italian citizen.

Falinski produced advice saying that he was not a citizen of the UK, Poland, Russia or Kyrgyzstan. But the letter to Falinski was dated Wednesday and the law firm, Arnold Bloch Leibler, said that “as previously discussed, we cannot conclusively advise on foreign law and recommend that you seek independent advice from foreign law experts”.

The crossbenchers were lobbied hard over the motion, including on the floor of the chamber, by both the opposition and the government.

Labor made an unsuccessful attempt to get its motion dealt with before Barnaby Joyce, who has just faced a byelection after the High Court declared him ineligible to sit, returned to the lower house.

Labor had a temporary majority but did not have enough time. Joyce was sworn in at 1.15pm and his presence in the subsequent debate meant the numbers were tied.

Moving the motion, Manager of Opposition Business Tony Burke said: “The only appropriate way for us to deal with this is to make sure that, wherever there has been serious doubt across the chamber, the High Court becomes the decision-maker rather than the numbers on the floor of this house”.

Arguing for a case-by-case approach, Malcolm Turnbull said that Labor “with not a principle in sight, with not a skerrick of evidence … wants to send members of the House to the High Court … without making any case that they are, in fact, dual citizens”.

The Greens’ Adam Bandt said the approach must be “even-handed and non-partisan”. “We think there should be an agreed set of names that go forward from this house.”

Sharkie, appealing for unity, said: “We will hang individually if we don’t hang together”.

Crossbencher Bob Katter told the parliament that none of the MPs should be sent to the High Court.

Labor leader Bill Shorten revealed that he had known for just over a week that Feeney didn’t have the required documents.

“I informed him that he needed to tell the parliament what was happening, and I made it clear to him that there was a deadline of disclosure,” Shorten told reporters.

Feeney has said he is still trying to have the British authorities find documentation that he renounced UK citizenship.

If Feeney is disqualified, Labor would be at risk of losing his seat of Batman to the Greens. There is doubt over whether he would be the candidate in a byelection.

Shorten did not disguise how angry he is with Feeney. “I am deeply frustrated – that’s a polite way of putting it – that one of my 100 MPs can’t find some of the documents which, to be fair to him, [he] says exist and says he actioned,” Shorten said.

He admitted that if he had been aware of Feeney’s situation he would not have been so definite in his repeated confident statements about the eligibility of all his MPs.

The ConversationLabor was divided internally over whether it should pursue Josh Frydenberg, whose mother came to Australia stateless: the Burke motion did not include him. The ALP is also not at this point pursuing another of those it has named, Arthur Sinodinos, who is away on sick leave.

https://www.podbean.com/media/player/hdjfk-7dce11?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

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