Striking in al-Ándalus: why Islamic State attacked Spain



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Spain plays a relatively inconsequential role in the fight against Islamic State.
Reuters/Sergio Perez

Ben Rich, Curtin University

Despite its (relatively) low body count and primitive execution, Thursday’s terrorist attack in Barcelona shocked many local and international onlookers. The Islamic State (IS) group was quick to claim responsibility for the attack, in which a van was deliberately driven into pedestrians on Barcelona’s famed Las Ramblas strip. At least 13 people are dead, and around 100 have been left injured.

The location and targeting of the attack deviates from IS’s previous efforts. These have typically focused on punishing countries directly involved in military operations against it in Syria and Iraq.

But how reliable are its claims of responsibility? And why was Spain chosen, given its relatively inconsequential role in the fight against IS?


Further reading: Barcelona attack: a long war against Islamic terrorism is our reality


The validity of IS’s claims

Verifying the culpability of terror attacks can traditionally be a tricky affair. Given that organisations that engage in terrorism are doing so from a position of weakness, there is always an incentive to lie in order to bolster mystique and inflate the image of threat.

But in this regard, IS seems to differ from previous groups. It has typically been reliably truthful in what it claims to have been its actions.

One Australian example of this can be found in the 2014 Lindt Cafe siege. The perpetrator, Man Haron Monis, proclaimed he was acting under IS auspices. But despite this declaration, and the potential propaganda victory it could bring, IS resisted such advances and distanced itself from the incident.

While IS would go on to posthumously praise Monis’ actions, it never made any explicit claims to having organised or directed them. No pre-existing relationship was found in the subsequent inquest.

This incident, along with many others, seems to indicate that while IS claims a butcher’s bill of heinous activities, it doesn’t tend to overtly lie about them.

Such a policy, while initially appearing counter-intuitive, maintains IS’s perception as a trustworthy source of information. This is particularly important in recruitment efforts, and makes it difficult for governments to challenge the IS’s claims in counter-propaganda.

For IS, maintaining a twisted sense of chivalrous virtue remains paramount.

Spain and the clash of civilisations

The Barcelona attack also reflects IS’s view of the world as a civilisational clash.

Described as a “reluctant partner” in the anti-IS coalition, Spain has resisted entreaties to join military efforts. Instead, it has opted for what it sees as a less risky role – providing logistical aid and training to local Iraqi forces, as well as preventing homegrown attempts to support IS abroad.

Spain’s limited role in the fight, particularly in contrast to other terror victims such as France and the US, might lead one to expect it to be relatively low on IS’s hit list.

But in terms of IS’s conflict narrative, Spain represents just another manifestation of a hostile Western civilisation in a state of war against the Islamic community. This leaves it more than open for reprisals.

At a spiritual level, Spain also holds a special place in IS’s mythology. Once a part of the Islamic empire, al-Ándalus, as it is known in Arabic, is seen by many IS ideologues as a natural territorial part of the end-state caliphate and currently under direct occupation by infidels.

Shock and bore

Terrorist reprisals like this attack are likely to intensify temporarily against Western targets throughout Europe and further abroad over the coming months and years, as the IS is systematically deconstructed on its home turf in Iraq and Syria.

IS remains heavily dependant on an image of defiant dynamism and a commitment to challenge the international status quo, which it claims subjugates the chosen community. As its ability to function as a “state” continues to decline, it will increasingly seek to maintain such a mystique through acts of spite against those that have prevented it from achieving its goal of a “caliphate”.

Despite a likely future increase in terrorist attacks, IS also risks a growing public disinterest and apathy toward its activities.

The ConversationAs one commentator has written, the banality and nontheatrical nature of IS’s approach to terrorism – particularly in contrast to al-Qaeda’s keen eye for spectacular symbology – has left many onlookers less than impressed and far from terrified.

Ben Rich, Lecturer in International Relations and Security Studies, Curtin University

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

Barcelona attack: a long war against Islamic terrorism is our reality



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At least 16 people have died, and scores more have been injured, in a terror attack on Barcelona’s Las Ramblas strip.
Reuters

Tony Walker, La Trobe University

Barcelona 2017, London 2017, Berlin 2016, Nice 2016.

In all of these cases the weapon of choice was a vehicle, driven at speed, into crowds innocently going about their daily business. Barcelona is just the latest in a series of targets of Islamic terrorism over the past year in which a vehicle has been used to mow down those in its path indiscriminately.

In all of these cases Islamic State (IS) has claimed responsibility.

These sorts of terrorist attacks – like the 2001 al-Qaeda plane attacks on targets in New York and Washington – have elevated threats to the civilian population in urban areas to a new level.

In the latest – on Barcelona’s famous tourist precinct near Plaça de Catalunya and Las Ramblas in the heart of the city – at least 16 people have died and scores more have been injured. The death toll is likely to rise.

IS, in a statement on one of its outlets, claimed responsibility for the attack, telling its supporters in Arabic:

Terror is filling the hearts of the Crusader in the land of Andalusia.

Another outlet warned that Spain was now grouped with the UK and France as terrorist targets.

The use of vehicles in relatively vulnerable locations where crowds gather, to inflict maximum harm on innocent people, will add significantly to unease across Europe. This anxiety will now reach new levels of intensity, with German elections due on September 24, and and a Catalan independence vote on October 1.

This latest attack will cast a shadow over events that will require people to gather in crowds either to participate in political campaigning, or to vote in the election itself.

More broadly, the use of vehicles as weapons against urban populations will add to security concerns in Western capitals – including in Australia.

What’s likely to come as a result are further security measures to combat the risk of vehicular attacks in crowded locations. But we know how difficult it is to prevent such attacks.

In Melbourne, Australia, for example, authorities have installed bollards around the city to guard against these sorts of acts. But ensuring people’s safety in free and open societies represents a huge challenge.

World leaders have condemned the Barcelona attack, but beyond pro-forma statements of support the reality is that the scourge of Islamic-inspired terrorism is here to stay for the time being.

These acts of violence, each one encouraging another, are part of a terrorist landscape. They will remain so especially at a moment when IS is under enormous pressure in its stronghold in Syria.

The expulsion of IS from Raqqa in eastern Syria will not lessen threats of terrorist violence in the West. Instead, it will probably heighten the risk.

What the Barcelona attack reminds us is that the West is embroiled in a long war against Islamic terrorism. Enhanced counter-terrorism strategies, making use of sophisticated technology, will lessen risks, but cannot entirely eliminate the threat in open societies.

The ConversationThis is the reality.

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

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

If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?



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It’d be better for ministers like Barnaby Joyce to have any potentially contentious decisions made by an acting minister until their citizenship issues are resolved.
AAP/Mick Tsikas

Anne Twomey, University of Sydney

What would happen if the High Court found that ministers Barnaby Joyce, Fiona Nash and Matthew Canavan had not been validly elected at the last federal election in July 2016?

In the case of the senators (Nash and Canavan), the High Court, sitting as the Court of Disputed Returns, would most likely order a special recount of the votes, as it did in relation to senators Bob Day and Rod Culleton, with the seat then most likely going to the next person on the Coalition ticket.

This may disrupt the balance between the National Party and the Liberal Party in the Senate, as those most likely to replace the two National Party senators would be from the Liberal Party.

Joyce’s seat, being in the lower house, would most likely go to a byelection, as previously occurred in the cases of Jackie Kelly and Phil Cleary. Like Kelly and Cleary, Joyce could stand for his seat at the byelection, as he has now renounced his New Zealand citizenship.

A bigger question arises, however, as to the validity of decisions that they made as ministers since the last election. If they were not validly elected in July 2016, then Section 64 of the Constitution becomes relevant. It says:

… no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

That three months ran out a long time ago. So, for a considerable time they would have been exercising powers conferred upon ministers by statute, without actually being ministers. Were those decisions valid? Could they be challenged?

This brings into play the “de-facto officer” doctrine. This is a common law doctrine that protects people who rely on acts done in the apparent execution of their office by an officer who appears to be “clothed with official authority”, even though they may not validly hold that office.

It is not aimed at protecting those who invalidly exercise power, but rather those who rely in good faith on the apparent authority of those who publicly exercise power. The doctrine is also relied on to give certainty concerning the validity of acts of persons whose appointment or election may later be challenged.

The public policy behind the doctrine is to avoid the chaos that would ensue if decisions of public officials were automatically rendered invalid because of a later discovered defect in their election or appointment. For example, the decisions of a Western Australian magistrate were upheld, even though they were taken after she had reached the compulsory age for retirement.

The application of the doctrine, however, is uncertain. It does not necessarily apply to all decisions of an invalidly appointed officer, and therefore is likely to lead to litigation if decisions are contentious.

Its application has also been doubted in relation to matters that concern a breach of the Constitution. For example, High Court Justice Michael Kirby observed in a 2006 case about the constitutional validity of acting judges that:

It is difficult to reconcile the [de facto officer] doctrine with the fundamental role of the federal Constitution as the ultimate source of other laws. Constitutional rulings can occasionally be unsettling, at least for a period. However, this is inherent in the arrangements of a nation that lives by the rule of law and accords a special status to the federal Constitution as its fundamental law.

Moreover, the doctrine ceases to protect the actions of the purported official at the point when they lose the cloak of authority, such as when the validity of their appointment is contested, or their lack of qualification to hold office is “notorious”.

It is quite possible that point arises when, in the case of a Commonwealth minister, they admit to being a dual national and refer to the High Court the question of their qualification to sit in the parliament, especially if the invalidity to hold parliamentary office exceeds three months.

For this reason, it would be prudent for those ministers who are currently under a cloud concerning their lawful occupation of office to cease to make decisions which are contentious or might give rise to legal challenges with significant consequences.

The ConversationInstead, such actions, if they need to be taken before the question of the status of these ministers is resolved by the High Court, could be taken by acting ministers to ensure their validity and avoid the financial and social costs of further litigation and uncertainty.

Anne Twomey, Professor of Constitutional Law, University of Sydney

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

Grattan on Friday: Malcolm Turnbull’s government has finally defied fiction



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With the eligibility of the Nationals’ leadership under question, Malcolm Turnbull has had a nightmarish week.
Mick Tsikas/AAP

Michelle Grattan, University of Canberra

In a week belonging more appropriately to Shaun Micallef comedy than parliamentary reality, it’s arguable Pauline Hanson’s burqa stunt wasn’t the most extraordinary thing that happened in Canberra.

Hanson has extreme beliefs and therefore it mightn’t be so surprising – though it is appalling – that she’s willing to use the parliament as a stage for extremely bad behaviour.

In donning the burqa purchased on eBay and entering the Senate chamber, she was as attention-seeking as the streaker who races naked across the football ground, though her motive was darker. Let’s call out her action, but not play into her cynical pursuit of mega publicity.

Entirely beyond imagination was the week being bookended by the Nationals leader, Barnaby Joyce, and his deputy, senator Fiona Nash, standing up in their respective houses to announce they were dual citizens (he a Kiwi, she a Brit).

Joyce and Nash are remaining in cabinet – unlike their Nationals colleague Matt Canavan – and in their leadership roles while the High Court determines the fate of all three, among the batch of cases involving dual citizenship. At issue is their eligibility under the Constitution’s Section 44, which bans dual nationals standing for parliament.

Australian Conservatives’ senator Cory Bernardi, formerly a Liberal, suggested on Thursday that parliament should be prorogued – that is, suspended – until citizenship questions and any subsequent byelections are sorted.

But suspending parliament would disrupt the normal course of government business, delaying legislation and, crucially in political terms, signalling panic.

Joyce continues to participate in parliamentary votes, so the government retains its one-seat majority in the House of Representatives. By its own lights, what credible story could it advance to put parliament on hold? It would look the ultimate in desperation.

There is no doubt the Joyce affair presented the government with a crisis. It then became a matter of management and this was seriously bungled.

Once it took the decision to keep Joyce in cabinet and in the deputy prime ministership, the government was always destined to be vulnerable to a ferocious Labor attack.

But its shock and awe response, with the absurd notion of a “treacherous” Bill Shorten and a Labor conspiracy across the Tasman with New Zealand Labour, was deluded from the start.

First, it was a try-on. Both Labor here and Labour in NZ were somewhat apologetic for their roles in the affair, understandable at least for NZ Labour which is facing an election. But what exactly was the wrongdoing by Labor here? Is there anything inherently “treacherous” about a Labor staffer using contacts to check in NZ who is eligible to be a citizen of that country?

Second the tactic, played in stereo, opened the government to ridicule. In particular, her exaggerated performance raised questions about the judgement of the usually astute Foreign Minister Julie Bishop, just days after a laudatory article had asked why she wasn’t mentioned more often as a possible future leader.

Although the circumstances are different, the hyperbolic accusation of “treachery” carries a remote echo from Turnbull’s book The Spy Catcher Trial, about the British government’s attempt to stop the Australian publication of a book by a former UK intelligence officer.

Turnbull, whose successful appearance in the high profile case gave an early boost to his reputation, wrote that then UK opposition leader Neil Kinnock – whom he pressed to “humiliate” the UK attorney-general in the British parliament – “was vigorously attacked in the House of Commons for ‘treacherous’ conduct”, in discussing the case with him.

If Turnbull were prone to bad dreams, his nightmares for the next few months would go something like this.

The government would lose the High Court case challenging the postal ballot on same-sex marriage, or win it and the ballot would return a “no” result.

It would lose Joyce’s citizenship case – and Nash and Canavan would be knocked out as well.

It would then lose the byelection in Joyce’s New England seat, with goodness knows what consequences in the resulting hung parliament.

Oh, and there would be a bruising battle within the government over energy policy, resulting in a much-criticised, wishy-washy outcome that gave no certainty for future investment.

But Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.

He’s predicted in the most unequivocal terms that Joyce will be vindicated in the High Court.

If things went well, the postal vote would sail through the legal challenge, and return a yes vote by a convincing margin with a substantial turnout, making the ballot beyond reasonable reproach, whatever the gripes of the losers. That would lead to parliament changing the law to deliver same-sex marriage by Christmas.

Energy policy would be hard fought within the government’s ranks, but the resulting compromise would be one that was seen as credible and welcomed by business.

The optimistic scenario – we might as well include in it at least one 50-50 Newspoll – would leave the government with a hope of regrouping, after an end-of-year ministerial reshuffle.

Which scenario, or what mixture of them, will come to pass is unforeseeable. But given how life goes for this government, some might regard the prospects for anything like the optimistic one as being in near-miracle territory.

Meanwhile, things are presently so grim they recall vividly some of the blackest times of the Gillard government.

Monday’s Joyce bombshell drove the same-sex marriage battle somewhat into the background, while both sides gear up for intense campaigns and questions remain about the postal ballot.

One of these is, I think, particularly interesting – that is, the argument that the result won’t be a true one because young people especially will be under-represented. The young are, collectively, more in favour of same-sex marriage than older people but less likely to be on the roll, to have a fixed address, or to be familiar with the post.

While this is a problem, I will be a bit contrarian. I think this both demeans the young and lets them off too lightly. They are supposed to enrol for elections anyway; if they have a view on the marriage issue there is both the incentive and opportunity to do so for this ballot.

A week is left – the rolls close August 24. The mobility challenge applies for general elections – it’s a hassle, but not insurmountable.

As for not using the post – well, that is like saying older people weren’t brought up with computers. Sorry, but one has to move with the times – even if, in this case, it’s moving backwards.

Young people are highly savvy with technology – I just don’t accept they can’t come to grips with posting a letter. If in doubt, they can always ask their grandmothers.

The ConversationThe nation is considering an important social issue – young Australians should get on the roll and vote.

Michelle Grattan, Professorial Fellow, University of Canberra

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

New shock rocks government: Nationals’ deputy Fiona Nash a dual British citizen



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Fiona Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

The government has been hit with another bombshell in the citizenship crisis, with the deputy leader of the Nationals, Fiona Nash, found to have dual British nationality.

Nash made a statement to the Senate just before it rose on Thursday night for a fornight’s break. Her case will be referred to the High Court when parliament resumes on September 4.

This means that both the Nationals’ leader, Barnaby Joyce, and his deputy will be before the High Court to determine whether they are ineligible to sit under Section 44 (i) of the Constitution, as will the Nationals’ former cabinet minister Matt Canavan. The section bans people with dual citizenship being elected.

Coming as soon as parliament met on Monday and just as it adjourned on Thursday, the Joyce and Nash statements respectively bookended a disastrous week for the Turnbull government.

Like Joyce and unlike Canavan, Nash, who is minister for regional development, will stay in cabinet, and will also remain deputy leader, while the court considers her position.

Nash told the Senate that after Joyce’s statement on his dual New Zealand citizenship, she sought advice from the UK Home Office. By Monday evening she was told a caseworker there believed she was a British citizen by descent through her Scottish-born father.

Her mother was born in Australia and was an Australian citizen; her father was born in Scotland in 1927. Her father died nine years ago, and her mother five years ago.

“I was born in Sydney in 1965. My parents divorced when I was eight and my mother raised me. I had very little contact with my father throughout his life,” Nash said.

“Growing up, my parents always told me that I was not a dual citizen. My understanding since early childhood was that in order to be a dual British citizen, I would need to apply for it.”

She said an internet search revealed a host of websites saying that having a Scottish-born father allowed a person to apply for citizenship, while mentioning nothing about automatic citizenship by descent.

She said the government had sought legal advice from the UK about her situation. This had been received on Thursday, and had been considered by a committee of cabinet late Thursday. Advice had been received from the solicitor-general shortly before she spoke.

“I have just met with the prime minister and am taking this opportunity to make the Senate aware at the earliest possible opportunity of the position,” Nash said.

She said that on the basis of the solicitor-general’s advice, Malcolm Turnbull “has indicated to me that he sees no reason for me to stand aside from my portfolio responsibilities.”

Labor greeted Nash’s stated timeframe with some scepticism.

Senator Katy Gallagher, manager of opposition business in the Senate, said as Nash had admitted, she’d “known since Monday that she was a dual citizen, yet waited until one minute before the Senate rose for a two-week break to inform the parliament. This is simply not good enough.”

The ConversationShe said Turnbull needed to explain why he was holding Joyce and now Nash to a lesser standard than Canavan, and not requiring them to stand down.

https://www.podbean.com/media/player/hu9ay-6f0803?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.

Unrepentant Hanson hopes burqa stunt will create debate


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Senators were shocked when Pauline Hanson appeared in the chamber shrouded in the voluminous black garment.
Lukas Coch/AAP

Michelle Grattan, University of Canberra

Pauline Hanson’s stunt of wearing a burqa into the Senate on Thursday drew a swingeing attack from Attorney-General George Brandis, amid widespread condemnation.

But an unrepentant Hanson – who admitted her action, which she’s been considering for months, was “extreme” – told 2GB she hoped it was “creating debate”.

Brandis’ denunciation, delivered with emotion, was greeted with a standing ovation from Labor and the Greens, and more limited and hesitant clapping on his own side.

Education Minister Simon Birmingham tweeted:

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Senators were shocked when Hanson – who has called for a ban on Muslim immigration – appeared in the chamber shrouded in the voluminous black garment. She removed it as she rose to ask Brandis whether he would work to ban the burqa, citing foiled and actual terrorist incidents. “There has been a large majority of Australians [who] wish to see the banning of the burqa,” she said.

“Senator Hanson, no, we will not be banning the burqa,” Brandis said.
He said he was not going to pretend to ignore her stunt – and warned of the damage such behaviour could do.

“I would caution you and counsel you, senator Hanson, with respect, to be very, very careful of the offence you may do to the religious sensibilities of other Australians.

“We have about half-a-million Australians in this country of the Islamic faith, and the vast majority of them are law-abiding, good Australians. Senator Hanson, it is absolutely consistent being a good, law-abiding Australian and being a strict-adherent Muslim.”

He said the advice of each director-general of security and each commissioner of the Australian Federal Police with whom he had worked was “that it is vital for their intelligence and law enforcement work that they work co-operatively with the Muslim community.

“To ridicule that community, to drive it into a corner, to mock its religious garments is an appalling thing to do, and I would ask you to reflect on what you have done.”

Hanson then asked whether the government would “ban the burqa in this house … as a security risk” and “also, the fact is the people of Australia have the right to see the face of a person that they elect to this parliament”.

Senate President Stephen Parry said this came within the purview of parliament’s presiding officers, not the attorney-general.

“The Speaker and I have made arrangements that anyone who enters these premises with their face covered by whatever means is clearly identified prior to entering the building.” He said he had ascertained when she entered who she was.

Shadow Attorney-General Mark Dreyfus tweeted praise for Brandis:

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Later Hanson moved a motion calling on “the government to ban full face coverings in public places on the grounds of social cohesion, the need to identify people seeking community support and for public safety”. It was defeated on the voices.

“Muslims determine the electoral outcomes in up to 15 lower house seats,” she told the Senate in her speech on the motion.

“The Muslim vote will continue to increase in importance because of the high birth rates in Australian Muslim communities. The number of Muslims in Australia doubled in the decade from 2006 to 2016 through immigration and high numbers of children born to Muslim families.

“If we do not draw a line in the sand against immigration from Islamic countries the influence of Muslims in this country will continue to grow and Australia will continue down the path of Islamisation.”

She told 2GB that just outside the Senate chamber she had passed Greens senator Peter Whish-Wilson. “He actually put out his hand to shake my hand. Now I shook it. He has never done that to me as Pauline Hanson. He did it to shake hands at a person completely covered up. It was a tokenism that he was shaking the hand of Islam.”

Crossbencher Jacqui Lambie said Hanson had diminished the chamber and was dividing the nation.

Anne Aly, a member of the House of Representatives, said Hanson had made a mockery of the parliament and her behaviour needed to be called out.

Crossbench senator Nick Xenophon said her action was offensive, “demeaning to people of other faiths”.

The Conversation“I wouldn’t even call this a stunt, this was just toxic,” Xenophon said.

https://www.podbean.com/media/player/hu9ay-6f0803?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 challenge to offshore immigration detention power fails



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The decision reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.
AAP/Eoin Blackwell

Amy Maguire, University of Newcastle

The High Court has today rejected a claim that the Australian government can only exercise its powers outside Australia for purposes that would be legal under the law of the relevant foreign country.

This means the Australian government had and has the power to establish and maintain its offshore immigration detention facility in Papua New Guinea, despite detention of asylum seekers there violating PNG law.

Background to the decision

The case commenced in May 2016. The initial application was a class action seeking relief on international, constitutional, administrative and civil law grounds. The court later permitted the plaintiff to file an amended application on more limited grounds.

The sole current plaintiff is an Iranian man, taken into Australian jurisdiction while on board an asylum-seeker vessel in July 2013. He was transported to Christmas Island, detained, and categorised as an “unlawful non-citizen”. In August 2013 the plaintiff was transferred to the offshore immigration detention facility on Manus Island.

The plaintiff claims to be a refugee but has not participated in the assessment process in PNG. He does not want to be settled there as a refugee due to fear of reprisals after giving eyewitness testimony at the trial of those convicted for the killing of Reza Barati. He has not been officially detained since around May 2016, but feels effectively detained due to the hostile environment outside the grounds of the detention centre.

The case decided today responded to the decision of the PNG Supreme Court in the Namah case. That court found that Australia’s detention of asylum seekers on Manus Island violated PNG law.

Unlike in Australia, PNG has constitutional human rights protections. These forbid the deprivation of personal liberty in most cases where a person has not committed a crime.

PNG announced the detention centre would close. Its prime minister, Peter O’Neill, asked Australia to make other arrangements for all asylum seekers still on Manus Island. No such arrangement has yet been made for the plaintiff in this case. He cannot be forcibly returned to Iran, as Iran refuses to accept involuntary returns.


Further reading: How a charter of rights could protect Australians’ fundamental freedoms


What was the High Court asked to determine?

The court was asked to determine whether the Australian government has power under the Constitution to do the things it has done to the plaintiff (and many others).

The Namah decision prompted most of the questions put to the court. They tested whether Australia could validly make and continue its arrangements for offshore processing and detention of asylum seekers on Manus Island, in light of the Supreme Court decision that those arrangements violate constitutional rights protections in PNG.

At the hearing in May 2017, Chief Justice Susan Kiefel asked the plaintiff’s barrister how the Namah decision could bear on the court’s interpretation of the Australian government’s powers under the Migration Act. Those powers are defined by the act and must be interpreted according to the Australian Constitution.

The plaintiff argued the Constitution should be read to imply a limitation on governmental power. Specifically:

That the power is to be used for a legal purpose, meaning a purpose legal where it is exercised, where it has effect.

The PNG Supreme Court found it was illegal for Australia and PNG to bring in and detain asylum seekers on Manus Island. The plaintiff therefore argued that Australia was exercising its powers for an illegal purpose.

The plaintiff’s barrister, Tom Molomby, continued:

… it is somewhat internally contradictory to regard the Australian Constitution as establishing a rule of law for our nation, yet capable of giving power to committing acts in other countries which are contrary to the law of that nation.

The court was also asked to consider whether Australia’s statutory powers to do things necessary for regional processing of asylum seekers in PNG depend on whether those things are legal under PNG law.

The plaintiff argued that:

The agreements being beyond power in Papua New Guinea, they were also beyond power in Australia. There is no power to make an agreement with a party that does not itself have power to make the agreement. There can be no power to perform an impossibility.

The High Court’s reasons

The full bench of the court decided unanimously to reject the plaintiff’s application. The judgment noted that the plaintiff was not able to cite any authority in prior case law or the text or structure of the Constitution for the arguments made.

On this basis, the court concluded that:

… there should be no doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country.

The court further decided the plaintiff had misunderstood the significance of the Namah decision in the context of this application. According to the court, this decision said nothing about the PNG government’s capacity to enter into an arrangement with the Australian government to establish or maintain the detention centre.

The PNG Supreme Court decision found that the bringing in, detention and treatment of asylum seekers on Manus Island violated constitutional rights protections in PNG. But it did not mean the PNG government acted beyond power in agreeing its arrangement with Australia.

The High Court rejected the plaintiff’s claim that the Australian government’s statutory power, under the Migration Act, depended on whether relevant actions were legal under PNG law. The court relied on an earlier decision that related to offshore immigration detention in Nauru.

According to the court in that case:

The lawfulness or unlawfulness of executive government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.

The bigger picture

This judgment is one in a series that demonstrates the lack of human rights protections in Australian law. It again reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.

However, cracks continue to widen in Australia’s punitive system of mandatory offshore detention for asylum seekers who travel by boat. The agreement Australia had with the US to transfer refugees there from Manus Island remains in doubt.

The lack of interest in the people at the heart of the dilemma was starkly revealed in the leaked transcript of the now-infamous Donald Trump-Malcolm Turnbull phone call.


Further reading: Trump-Turnbull call: trading people like pawns undermines the goals of international co-operation


Earlier this week, Liberal MP Russell Broadbent broke ranks with the government, calling for Australia to take responsibility for detained refugees who do not find resettlement in the US. Broadbent spoke out against the prospect of indefinite detention for people who have not committed any crime.

The ConversationAfter today’s decision, the responsibility to bring Australian law and practice into line with international legal obligations remains squarely with the government. The High Court has not found justification to intervene.

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

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

Grooming the globe: denying fairness, complexity and humanity



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Donald Trump may not have been the 1%’s preferred candidate, but he embodied its message.
Reuters/Joshua Roberts

Julianne Schultz, Griffith University

This piece is republished with permission from Perils of Populism, the 57th edition of Griffith Review. Articles are a little longer than most published on The Conversation, presenting an in-depth analysis of the rise of populism across the world.


“I know it makes you sick to think of that word fairness,” Arthur C. Brooks, president of the American Enterprise Institute, told the Conservative Political Action Conference in March 2013. But he went on to tell the heads of Washington’s most influential right-wing think-tanks, who were still shocked by Barack Obama’s continuing appeal, that Americans “universally believe it’s right to help the vulnerable”.

He continued:

If you want to win, start fighting for people! Lead with vulnerable people. Lead with fairness … telling stories matters. By telling stories we can soften people.

New Yorker investigative journalist Jane Mayer paraphrased Brooks’ message in her magisterial book Dark Money. If the 1% wanted to win control of America, they needed to rebrand themselves as champions of the other 99%.

Donald Trump may not have been the 1%’s preferred candidate – his ego, ignorance and lack of discipline were well known – but he embodied the message. In the words of the Hannah Arendt scholar Roger Berkowitz, Trump:

… appeals to the need for constant distraction, destruction and entertainment.

It is tempting to think that this appeal, and its authoritarian consequences, is innate – a default setting of human societies across history and geography. But the swift counter-reaction to Trump at home, and subsequent elections in Europe, challenge this presumption.

Nonetheless, there is a long list of authoritarian leaders across the globe ready to deride the rule of law, circumvent checks and balances, undermine institutions, cultivate ignorance and encourage fear.

As Mayer painstakingly demonstrates, making self-interest seem normal and a commitment to fairness an elite aberration has been a long-term project.

Upending this commitment – expressed most simply in President Franklin D. Roosevelt’s four freedoms (of speech and religion, from want and fear) that were ultimately embodied in national and global institutions created at the end of the second world war – is not something that has happened by chance. It has been the result of a deliberate, well-funded, long-term strategy that has touched us all, whether we are aware of it or not.

As Mayer writes:

During the 1970s, a handful of the nation’s wealthiest corporate captains felt overtaxed and over-regulated and decided to fight back. Disenchanted with the direction of modern America, they launched an ambitious, privately financed war of ideas to radically change the country. They didn’t want to merely win elections; they wanted to change how Americans thought.

These well-lubricated ideas quickly spread through the world due to American global dominance.

It didn’t take long before institutions were accused of failing, experts gained the prefix “so-called”, and “elites” ceased to be the mega rich or those born with silver spoons, but were redefined as educated people who questioned the self-interest orthodoxy.

The globe was being groomed for a profoundly different settlement than the one that grew out of the conflagration of war, one that ignored complexity, challenged the rule of law, bred oligarchs, and undermined fairness.


Further reading: The restorationist impulse: why we hanker for the old ways


Understanding populism’s rise

Millions of words have been written in an attempt to make sense of the recent global political disruptions that are conveniently grouped under the banner of “populism”.

Although newspaper sales are at their lowest since 1945, the hunger for news, information and analysis, and the expectation that it can be found, remains. Explanations are sought in personal experience, in nostalgia, or by slicing and dicing the data from opinion polls and voting patterns.

Professor Pippa Norris of Harvard University calculates that the populist vote (both left and right) in Europe has doubled since the 1960s to reach double digits.

Pauline Hanson’s One Nation has demonstrated with remarkable effectiveness a broader global trend: the ability of a relatively small voting bloc to catalyse a response from political parties that do not share their same extreme values.

Old class-based accounts are no longer sufficient to explain political behaviour, as was sharply demonstrated in the recent UK and French elections. The emerging consensus among political scientists is that cultural factors provide a better predictor of electoral behaviour – particularly education, age, gender, religiosity and attitudes to diversity.

These values can find expression on the left and the right. But they tend to appeal mostly to an older cohort who feel they have lost power and influence, whose worlds have been upended by economic and social change. But, to put it crudely, their days are numbered.

The “war of ideas” has encouraged mistrust of experts and cynicism about institutions, undermined faith in a shared humanity irrespective of ethnicity or religion, and discouraged questioning of the neoliberal economic orthodoxy.

Meanwhile, the quiet post-materialist revolution that started in the 1970s has produced generations of people who are more open-minded, tolerant, trusting and accepting of diversity. The numbers suggest they are on the ascendancy.


Further reading: Discontents: identity, politics and institutions in a time of populism


Education and populism

It is not really surprising that education – rather than income, gender or class – is the strongest marker of populist appeal.

This is not simply because you learn stuff at school, college or university, but because education provides the tools for dealing with complexity, for weighing and evaluating arguments, for seeking and testing information, learning from history and those who went before.

It also embodies a social contract, valuing expertise, teasing out right and wrong, tolerating difference and learning respect.

The populist public sphere is a degraded, distracted place where might is right and simplicity and “common sense” the answer to complex, multifaceted questions; where little is learnt from history, and respect is in short supply.

Yale professor and Holocaust scholar Timothy Snyder in On Tyranny: Twenty Lessons from the 20th Century provides a wise compendium of caution and a few handy rules:

  • defend institutions;

  • remember professional ethics;

  • believe in truth; and

  • do not pre-emptively obey but be calm, patriotic and courageous.

In the “war of ideas” over the past few decades, incalculable amounts of money have been spent to undermine these hard-won values and undermine both institutions and checks and balances that, while not perfect, have produced unprecedented opportunities.

As those who turn up in large numbers to reclaim public spaces after terrorist attacks show, and those who demonstrate to demand equality illustrate, the appeal of authoritarianism is not necessarily innate, but is always ready to be challenged.


The ConversationYou can read other essays from Griffith Review’s latest edition here.

Julianne Schultz, Founding Editor of Griffith REVIEW; Professor, Griffith Centre for Creative Arts Research, Griffith University

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

To the High Court we go: six MPs under clouds in decisions that could undermine the government



File 20170815 12098 kghj4m
Deputy Prime Minister Barnaby Joyce is one of five MPs caught out in the ban in dual citizens holding seats.
AAP/Lukas Coch

Graeme Orr, The University of Queensland

Two green bottles and up to four blue ones. Falling from the parliamentary wall, unless the High Court saves them from the rules about MP qualifications. The six are now-resigned Greens senators Scott Ludlam and Larissa Waters, fellow upper house members Matt Canavan (LNP) and Malcolm Roberts (One Nation), and two government members of the lower house, Barnaby Joyce and David Gillespie (both Nationals).

At least that’s the latest count, as of Monday’s referral of Joyce to the court. I hesitate to file this piece lest the number rise again today.

What happens now?

First, a word on process. Gillespie’s case is different from the others, in two ways. He is not a dual citizen but faces claims about his “pecuniary interest” in a shop sub-leased to Australia Post. This is the constitutional rule that knocked out Family First senator Bob Day in April.

Also, Gillespie is being sued by his former Labor Party rival, acting as a “common informer” – a fancy term for an officious bystander who sues to enforce the law.

This avenue to challenge an MP has not been used before. It’s not entirely clear the court has power to declare Gillespie “not duly elected”. (As opposed to exacting a penalty from an MP, in the princely sum of A$200, for any day they sat while under a disqualification.)

The other five – facing dual citizenship claims – are not being sued at all. Rather, parliament has referred their positions to the court. A few things flow from that, aside from the Commonwealth almost certainly having to cover their legal costs.

One is that there is no belligerent plaintiff to argue against, say, Joyce. There will just be the solicitor-general, putting legal arguments for the Commonwealth, plus lawyers for whichever of the other four MPs or their parties choose to be represented.

Yet Joyce, Canavan and Roberts share a desire to convince the High Court that they are legitimate, arguing on related grounds that it might be unfair to unseat them.

Another is that while the election is long over, the High Court says it can undo an election on a reference from parliament. This is due to a quirky, 30-year-old ruling. I say quirky because, for more than a century, there’s been an absolutely strict time limit for challenging elections.

With electoral fraud, unlawful campaigning, or electoral commission stuff-up, a court case must begin within 40 days of the election. Yet the High Court says it can undo election results, long afterwards, over qualifications issues.

What will the MPs argue?

We must await the arguments, but it seems that Joyce, Canavan and Roberts will argue that they either took reasonable steps to renounce (Roberts) or that it was unreasonable to expect them to have known of their dual citizenship (Joyce and Canavan). In a 1992 case, the High Court softened the law against dual citizenship to allow a defence of “reasonable steps” of renunciation.

Roberts was born in India (after partition) to a Welsh father. He took some steps – three emails in one day on the eve of nominating, apparently – to renounce his UK inheritance. Was that enough, given the UK has a set application form and fee for renunciation? Roberts, some time after the election, received notice that his UK citizenship was expunged.

Canavan, Australian-born, asserts that his mother took out Italian citizenship on his behalf, without his knowledge.

Similarly, Joyce, also Australian-born, says he was blindsided to learn he had New Zealand citizenship via his NZ-born father. They want the court to inject a subjective element – actual or constructive knowledge of dual nationality – to avoid a finding that taking no steps to renounce does not meet the idea of “reasonable steps”.

It’s possible Joyce will also argue the details of NZ law. For example, whether it automatically bestowed citizenship on him, or whether he was merely guaranteed it if he applied to activate it.

The Greens pair, by resigning, seemed to admit they were disqualified. But MPs cannot declare themselves improperly elected. Only the court can do that.

Ludlam (New Zealand) and Waters (Canada) were each born overseas, but to Australian parents. They left their birth countries at the tender ages of three years and 11 months respectively.

At least in Waters’ case, her family lore (not law) was that her nationalisation as an Australian toddler terminated any Canadian status. In some countries, you lose your birth citizenship when you take out another nationality. This was the law in Australia until recently.

The logic of the Greens’ political position is to have their two Senate seats filled ASAP. Yet, in substance, their pair are hardly more blameworthy than the other MPs, who seek to fight on. They have hemmed themselves in, however, by resigning.

If the court found their disqualifications were OK, the Greens could reappoint them or any other Greens member, under the old rule for filling a “casual vacancy”.

Finally, to legal consequences. If a senator is declared “unduly elected”, the Australian Electoral Commission conducts a recount. Invariably, the next candidate in the party’s original electoral ticket inherits the seat.

That windfall beneficiary can keep it, or the party could cajole them to resign in favour of … the unelected MP. Because all of these MPs, with sufficient paperwork and knowledge, can fix up their qualifications.

Roberts and Waters say they’ve done that. Joyce and doubtless Canavan have that in train.

In a lower house seat, however, a recount would be crazy. The seat would go to the rival major party, robbing the electorate. Instead, the court effectively triggers a byelection.

In a worst-case scenario for Joyce (or Gillespie), he would recontest that fresh election. A lot would be at stake in New England (or Port Macquarie). But it’s hard to see the electors there treating now-ex-Kiwi Joyce as a fifth columnist.

The law is an unnecessary mess

All this is a law professor’s picnic.

Section 44, as it applies to elections, detracts from, rather than adds to, democracy. Its technicalities are a thicket, catching many a candidate. It sits oddly in a Constitution that never guaranteed a right to vote, leaving that small matter to the national parliament.

It’s time for reform. We inherited the dual citizenship rule, an old rule about fealty to one Crown, from our English forebears.

The ConversationThe founders struck it in stone in the Constitution. Yet state parliaments are fine with dual citizens being elected. So too is New Zealand. And, funnily enough, so nowadays is the UK.

Graeme Orr, Professor of Law, The University of Queensland

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