Australia’s asylum seeker policy history: a story of blunders and shame


Carolyn Holbrook, Deakin University

This article was developed from a series of interviews with politicians, officials and other key players, including former Immigration minister Chris Evans and former Victorian premier Steve Bracks. Others preferred to remain anonymous.


We know very little about the kind of government Scott Morrison runs. After beating Peter Dutton and Julie Bishop to the prime ministership in August last year, most commentators assumed Morrison was keeping the chair warm until Labor’s Bill Shorten won the 2019 election.

Following the Coalition’s unexpected victory, it’s time to ask more searching questions, not only about Scott Morrison’s political values and policy aspirations, but about his prime ministerial style.

Recent history suggests processes of policy decision-making can make or break governments.




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Labor’s shambolic attempts to create asylum seeker policy during the Rudd-Gillard years are emblematic of the dire consequences when tried-and-tested processes of policy advice fail.

In the face of internal dissent, thousands of asylum seekers arriving by boat and a marauding opposition leader, the government rejected its most vital source of advice, the public service.

It began in 2009

In mid-October 2009, Prime Minister Kevin Rudd was informed that a vessel carrying 78 Sri Lankan asylum seekers was in danger of sinking in Indonesian waters. Rudd negotiated directly with the Indonesian president Susilo Bambang Yudhoyono and decided to dispatch a Customs vessel, the Oceanic Viking, to rescue the asylum seekers and return them to Indonesia.

The then immigration minister Chris Evans first heard of the plan when he received a phone call from Rudd’s chief of staff, Alister Jordan.

Jordan was not consulting the immigration minister, but rather informing him of a plan that had been enacted. Evans rang his departmental secretary, Andrew Metcalfe, who told him the plan would not work because the asylum seekers would refuse to disembark.

As Metcalfe had foreseen, the asylum seekers refused to leave the Australian boat at Bintan. Australian voice surveillance revealed there was talk of mass suicide.




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The standoff lasted four weeks, until a deal was struck that saw the Sri Lankans resettled in countries including New Zealand.

Officials in the Immigration Department were dumbfounded. One told me:

The Oceanic Viking was a thought bubble from Rudd … It was an absolute debacle. It was crazy. It had nothing to do with immigration but we were asked to go in and fix it up. And that scuttled any possibility of us doing anything with Indonesia for a long time.

The boats kept coming. There were 6,555 boat arrivals in 2010. On the night he lost the prime ministership to Julia Gillard, Rudd told the Labor caucus that if he won the leadership vote, he would “not be lurching to the right on question of asylum seekers”.

What Rudd didn’t mention was that the government had been actively exploring offshore options for some time.

The Immigration Department had prepared a list of possible sites for offshore detention that included Malaysia, Pakistan, Thailand, Indonesia, and East Timor.

Sounding out the East Timorese government

Evans was focused on pursuing a multilateral solution. His officials consulted with members of the refugee lobby, including the prominent lawyer David Manne, about being part of a broader regional arrangement that had the approval of the United Nations High Commissioner for Refugees (UNHCR).

Evans and his department worked on an offshore deal that would meet with the approval of Australian stakeholders, neighbouring countries, and the UNHCR. But meanwhile, a small group of ministers focused on East Timor.




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The former Victorian premier, Steve Bracks, was approached at an airport and asked to sound out the East Timorese government about a processing centre. Bracks reported back that Prime Minister Xanana Gusmao was interested, but he would need some time to win support within his government.

Gusmao wanted negotiations to be done through the president, Jose Ramos Horta. This process was in train when Kevin Rudd was overthrown as prime minister on June 24, 2010.

In a speech to the Lowy Institute on July 5, the new prime minister, Gillard, announced she had discussed with Horta the possibility of establishing a regional processing centre in East Timor. But in going public, she had pre-empted the internal East Timorese process. Gusmao distanced himself from the plan and it quickly fizzled.

Meanwhile, the public servants who had been working on the multilateral solution were left scratching their heads. One official told me:

I have no idea where [East Timor] sprang from.

We were working on arrangements … and one of the really difficult things was thought bubbles kept coming from funny quarters and then you’d have the media onto it, laughing at it or making a joke of it.

Failed Malaysia initiative

After the 2010 election, the new immigration minister Chris Bowen secured an offshore processing arrangement with Malaysia. Immigration Department officials had encouraged Bowen to bring refugee stakeholders and the UNCHR on board.




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But Bowen, who was facing immense political pressure from opposition leader Tony Abbott, preferred to deal unilaterally with his Malaysian counterpart, Hishamuddin Hussein, with whom he had developed a strong rapport.

Hours before the first 16 asylum seekers were due to be transported to Malaysia, Manne obtained an injunction against their removal from Australia, pending a challenge to the legality of the government’s agreement with Malaysia.

In September 2011, the High Court decided in a six-to-one decision that the Malaysia agreement contravened the Migration Act because the refugees would not be given the protection required by the Australian legislation.

According to a key player, the High Court ruling was the product of a profound failure of process:

the government did a very bad job at … going to the organisations who would be part of any solution. And, instead, pissed them off so comprehensively they went to the High Court.




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After the failure of the Malaysia initiative, the Gillard government hurriedly reopened the Nauru and Manus Island processing centres.

In 2013, then Prime Minister Kevin Rudd and Opposition Leader Tony Abbott debate about asylum seeker policy, and the ‘PNG solution’.

When Rudd replaced Gillard in June 2013, he announced that no one who arrived by boat would ever be settled in Australia. The boats slowed, but it was the institution of boat turnbacks under the Abbott government’s Operation Sovereign Borders that stopped them altogether.

The consequences of the Rudd and Gillard governments’ blundered handling of asylum seeker policy were considerable. Indonesia and East Timor were unnecessarily offended, the government’s political fortunes suffered and, most significantly, asylum seekers were again subjected to processing on Nauru and Manus Island.




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It is conceivable that Manus and Nauru would have remained closed and Operation Sovereign Borders rendered unnecessary had the Rudd and Gillard governments heeded the advice of the Immigration Department to bring key refugee stakeholders and UNHCR on board into the process.

The institution of rigorous decision-making processes will not guarantee Scott Morrison’s success, but they could help him avoid many of the pitfalls that contributed to the downfall of the Rudd and Gillard governments.


Carolyn Holbrook is presenting a talk on this topic at the Australian Policy and History ‘History and the Hill’ Conference at Deakin University on Thursday, June 13The Conversation

Carolyn Holbrook, ARC DECRA Fellow at Deakin University, Deakin University

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

Vital Signs. If we fall into a recession (and we might) we’ll have ourselves to blame



The Reserve Bank and government have the means to keep us from recession. They’ll need the will.
Shutterstock

Richard Holden, UNSW

The facts are not in dispute.

Annual GDP growth has fallen to 1.8%. On a per-capita basis we have had three consecutive quarters of negative growth. The last time that happened was during the drought and recession of 1982, almost four decades years ago.

The most recent inflation reading was literally zero. Real wage growth has been stagnant for six years. Household debt is nearly double disposable income. And underemployment is more than 8%, on top of a 5.2% rate of unemployment.

What is in dispute is what to do about it.

We’ve entered secular stagnation

After being been told for years that the economy is in good shape and that we are “transitioning away from the mining boom”, it’s time to face the reality that, like most advanced economies, we are in a low-growth, low-interest rate, low-inflation trap.

Former US Treasury Secretary Larry Summers has argued for some time that advanced economies, almost universally, are suffering from what he calls “secular stagnation” — a protracted period of low growth caused by too much savings chasing too few productive investment opportunities.

If the description applies to us, and it does, there are only two ways to escape it.

We’ve two options

One is unconventional monetary policy: measures that have the effect that pushing interest rates below zero would have.

The other is aggressive fiscal policy: either big (and if necessary, repeated) tax cuts or a big (and if necessary, repeated) boost in government spending, each of which would put the surplus at risk.

What would an aggressive-enough monetary policy look like?

The starting point is a concept known as the “equilibrium real interest rate”. It’s the real (inflation-adjusted) rate of interest consistent with stable macroeconomic performance (which means full employment without financial bubbles).

1: Aggressive monetary policy

There is compelling evidence that in advanced economies such as Australia the equilibrium real interest rate is negative.

But getting there in a low-inflation environment is hard. The Reserve Bank can, if it chooses, set the cash rate as low as 0% (this week it cut it to 1.25%) but it can’t safely move it much lower than zero. If it did, if people and firms found themselves having to pay money in order to keep money in banks, they might simply take their money out, giving the Reserve Bank even less control.

This problem is known as the “zero lower bound”. It means that if the bank needs to cut rates beyond than zero it’ll probably have to do something else that has a similar effect.

The most likely candidate is “quantitative easing” (QE), whereby the central bank buys long-term government bonds and other securities from investors that have them, effectively forcing cash into their hands, which the zero interest rate means they have little choice but to spend.

It shows up in lower longer-term interest rates (rates for borrowing 5, 10 or even 30 years into the future) and should boost spending and borrowing just as much as cutting short-term rates.




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There are at least three difficulties with QE in Australia.

The first is that because the Reserve Bank has never done it before, there are questions about how it would mechanically execute on it. The United States and European experience is helpful in providing a template.

The second difficulty is getting out. Nobody, including the US Federal Reserve, really knows what happens when QE is unwound.

Third, if secular stagnation persists, then QE needs to be a long-term strategy. But is it possible for a central bank to expand its balance sheet buying bonds and securities indefinitely, even if it was buying them at a modest pace? Again, nobody knows.

2: Aggressive fiscal policy

If nothing else, the headaches with monetary policy suggest that fiscal policy might be an attractive alternative. It might also be more effective.

As Reserve Bank governor Philip Lowe noted in a speech on Tuesday, done in a good way government spending on infrastructure could both boost the economy and boost longer term productivity, giving a double benefit. It could be complemented by “structural policies that support firms expanding, investing, innovating and employing people”.

It’s hard to argue with Lowe’s logic. So hard in fact that some of us have been saying exactly what he just said for some time.

A quicker way to boost the economy would be to splash cash, either as Kevin Rudd did in the form of cash payments during the global financial crisis, or in the form of tax offsets of the kind the Morrison government announced in the 2018 and 2019 budgets.




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Delivered straight into bank accounts, both have much the same effect, even though one is classified as spending and the other as cutting tax.

The obstacle to doing such things is this government’s – make that this country’s – obsession with balanced budgets.

The surplus can wait

I have argued strongly and still believe that debt and deficits do matter, but at the moment we are in serious danger of falling into recession. That makes it imperative to act.

Given the politics of budget deficits and the narratives around economic management, it might be that the burden of action falls on the organisation the least able to pull it off in the present circumstances. That’s the Reserve Bank.

If Australia does dip into recession in the next year or two it will be an unforced error.

Not only would the government be responsible for it by not having taken strong enough action on spending when it could, the bank would also be responsible by taking action too late and letting things get to the stage where it had to act while interest rates were near zero.




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The Conversation


Richard Holden, Professor of Economics, UNSW

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

The Section 44 soap opera: why more MPs could be in danger of being forced out


H. K. Colebatch, UNSW

One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.

Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.

Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.

To do that, we first need to address seven myths about Section 44.

1. Everyone knows their citizenship, they just need to do their paperwork

Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.

For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”

On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).

Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.




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2. It doesn’t affect many people

On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.

In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.

As a result, the Australian parliament becomes even less representative of the Australian people.

3. The constitution framers knew what they were doing

The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.

The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.




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4. The High Court has sorted it out

Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it’s advantageous to their party.

And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.

In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.

But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.

This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.

Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was ‘potential,’ not actual.
Mick Tsikas/AAP

5. But there are administrative checks now, too

Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.

But no action was taken on any of these cases. The register appears as a matter of record only.




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Enough is enough on section 44: it’s time for reform


Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.

6. We want our MPs to be unequivocally Australian

Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.

One case illustrates the ludicrous reach of the present wording.

After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.

While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.

Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
Mick Tsikas/AAP

7. It’s too hard to change the Constitution

The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.

The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.

Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.

If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.

So where does this leave us?

It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?

The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.The Conversation

H. K. Colebatch, Visiting Professorial Fellow, UNSW

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

Iran nuclear deal is hanging by a thread – so will Islamic Republic now develop a bomb?



Shutterstock

Annie Waqar, University of Westminster

The most ambitious effort to peacefully constrain the nuclear aspirations of a nation hangs by a thread. Eight years of patient and difficult negotiations to reach an agreement on Iran’s nuclear programme were cast aside when president Donald Trump withdrew US support for the deal in May 2018.

Since then, tensions between Iran and the US, a signatory to the 2015 Joint Comprehensive Plan of Action (JCPOA) – alongside the UK, Germany, France, Russia and China – have escalated. Last November, the US inflamed things further by re-imposing economic sanctions targeting both Iran and the states that trade with it.

The US decision in early May to deploy an aircraft carrier strike force and B-52 bombers, in response to what Washington said was an imminent Iranian plan to attack US assets, has kept tensions at a boil.

Washington stated that the latest show of force was in response to a “campaign” of recent attacks, including a rocket launched into the Green Zone in Baghdad, explosive devices that damaged four tankers near the entrance to the Gulf, and drone attacks by Yemeni rebels on a key Saudi oil pipeline. Iran has denied any association with the incidents.

More recently, the US withdrew waivers which were part of the JCPOA deal with Iran. By revoking the waivers that enabled Iran to ship abroad excess supplies of enriched uranium and heavy water, the US has left the Islamic Republic pondering whether it should continue to comply with certain key parts of the deal.




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Iran’s foreign affairs minister, Javed Zarif, and Iraq’s foreign minister, Ali Alhakim, held a joint news conference in May, during which Zarif called on European states to do more to preserve the nuclear deal. Zarif also called the deployment of extra US troops to the Gulf region “extremely dangerous and a threat to international peace and security”.

A supportive Alhakim stated: “The sanctions against sisterly Iran are ineffective and we stand by its side.”

Certainly, sanctions have damaged Iran’s economy. The Iranian currency has hit a record low against the US dollar amid continued economic difficulties following the reimposition of sanctions, and the purchasing power of Iranians has dropped significantly. Indeed, Iran’s economy in 2019 is expected to fall deeper into recession, with estimated negative growth of 5.5% or higher.

Iran’s choice

Tehran has requested that the European signatories to the nuclear accord – France, Germany and the UK – keep the pact alive. The JCPOA sets a 3.67% limit on uranium enhancement (enough to fuel a commercial nuclear plant) and bars Iran from accumulating supplies of more than 300kg of low-enriched uranium and 130 tons of heavy water, a coolant used in nuclear reactors.

Tehran has rightly said the deal agreed to end Iran’s financial isolation in return for the strict limitations on its nuclear activities. But by bolstering sanctions, the US has scared organisations and banks into diminishing, ceasing or avoiding altogether business with Iranian partners, with serious repercussions for Iran’s economy.

Europe, by and large, has supported diplomacy with Iran. It has argued that Trump’s rejection of the deal compromises the pragmatic wing of Iran’s administration and plays into the hands of hardliners. The EU has long had questions about Tehran’s missile program, and its involvement in Lebanon, Iraq and Yemen, but it has viewed these as separate from the nuclear agreement.

Hassan Rouhani: under pressure.
Shutterstock

The economic sanctions have certainly put the moderate Iranian leader Hassan Rouhani under pressure, both internationally and domestically. Iranian hardliners argue that Iran surrendered too much in the agreement.

Rouhani has perhaps come up with a clever way of deflecting domestic criticism of him – at least for now – by suggesting that the Islamic Republic hold a referendum over its nuclear program. The official Islamic Republic News Agency (IRNA) stated that Rouhani, who recently was openly chastised by the nation’s supreme leader, Ayatollah Ali Khamenei, made the suggestion at a gathering of senior Iranian editors on May 25.

Khamenei, who has the last say on all issues of state in Iran, has not yet responded to Rouhani’s recent proposition. The Islamic Republic has seen just three referendums since 1979: one on its change from a monarchy to an Islamic republic, and two on its constitution.

A nuclear threat?

In the meantime, Iran has also threatened to quadruple its uranium-enrichment production limit, but stressed that even this uranium would not be enhanced beyond the 3.67% limit set by the JCPOA, making it unsuitable for developing a nuclear weapon. Rouhani has also said that Tehran will keep its excess enriched uranium and heavy water rather than exporting it.

If Europe fails to find a way for business and investors to work with Iran without being penalised by US sanctions, however, Rouhani has said that Iran will begin enriching uranium even further. In principle, this more highly-enriched uranium could be used as the fissile core of a nuclear weapon. This would send Iran back on its way towards making a bomb, and mark the end of the JCPOA.

According to the UN’s International Atomic Energy Agency (IAEA) most recent quarterly report, Iran’s enriched uranium and heavy water stocks have grown but have not exceeded the ceilings set in the nuclear agreement. This suggests that Iran continues to comply with the JCPOA – for now, at least.

So far, Iran has also abstained from getting entangled in military brinkmanship with the US. But Trump may soon face a tough choice: either engage in a military clash with Iran or return to the JCPOA. The latter may be a u-turn too far for the bellicose president.

Either way, it is difficult to convince nations to surrender nuclear weapons once they have them. In this case, everything peaceful should be done to ensure that Iran is prevented from acquiring one in the first place.The Conversation

Annie Waqar, Lecturer/Academic consultant, University of Westminster

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

Why the raids on Australian media present a clear threat to democracy



On Wednesday, the AFP raided the ABCs Sydney headquarters in relation to the 2017 “Afghan files” report.
AAP/David Gray

Rebecca Ananian-Welsh, The University of Queensland

The Australian Federal Police has this week conducted two high-profile raids on journalists who have exposed government secrets and their sources.

On Tuesday, seven AFP officers spent several hours searching News Corp journalist Annika Smethurst’s Canberra home, her mobile phone and computer. The AFP linked the raid to “the alleged publishing of information classified as an official secret”.

This stemmed from Smethurst’s 2018 article, which contained images of a “top secret” memo and reported that senior government officials were considering moves to empower the Australian Signals Directorate (ASD) to covertly monitor Australian citizens for the first time.

Soon after, 2GB Radio Presenter Ben Fordham revealed he had been notified by the Department of Home Affairs that he was the subject of a similar investigation, aimed at identifying the source of classified information he had reported regarding intercepted boat arrivals.

And then on Wednesday, the AFP raided the ABC’s Sydney headquarters. This dramatic development was in connection with the 2017 “Afghan files” report based on “hundreds of pages of secret defence force documents leaked to the ABC”. These documents revealed disturbing allegations of misconduct by Australian special forces.

The reaction to the raids was immediate and widespread.

The New York Times quoted News Corp’s description of the Smethurst raid as “a dangerous act of intimidation towards those committed to telling uncomfortable truths”. The Prime Minister was quick to distance his government from the AFP’s actions, while opposition leader Anthony Albanese condemned the raids.

But to those familiar with the ever-expanding field of Australian national security law, these developments were unlikely to surprise. In particular, enhanced data surveillance powers and a new suite of secrecy offences introduced in late 2018 had sparked widespread concern over the future of public interest journalism in Australia.

The crackdown of the past few days reveals that at least two of the core fears expressed by lawyers and the media industry were well-founded: first, the demise of source confidentiality and, secondly, a chilling effect on public interest journalism.

Source confidentiality

Upon finding out he was the subject of an investigation aimed at uncovering his sources of government information, Ben Fordham declared

The chances of me revealing my sources is zero. Not today, not tomorrow, next week or next month. There is not a hope in hell of that happening.

Source confidentiality is one of journalists’ most central ethical principles. It is recognised by the United Nations and is vital to a functioning democracy and free, independent, robust and effective media.

One of the greatest threats to source confidentiality is Australia’s uniquely broad data surveillance framework. The 2015 metadata retention scheme requires that all metadata (that is, data about a device or communication but not, say, the communication itself) be retained for two years. It may then be covertly accessed by a wide array of government agencies without a warrant. Some reports suggest that by late 2018, some 350,000 requests for access to metadata were being received by telecommunications service providers each year.




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The government was not blind to the potential impact of this scheme on source confidentiality. For example, obtaining metadata relating to a journalist’s mobile phone could reveal where they go and who they contact and easily point to their sources.

This led to the introduction of the “Journalist Information Warrant” (JIW). This warrant is required if an agency wishes to access retained metadata for the direct purpose of identifying a professional journalist’s source.

So, access to a professional journalist’s metadata in order to identify a confidential source is permitted, provided the access has a particular criminal investigation or enforcement purpose and the agency can show it is in the public interest and therefore obtain a JIW.

This week’s raids suggest that either JIWs could not be obtained in relation to Smethurst, Fordham or the ABC Journalists, or the journalists’ metadata did not reveal their sources, or the AFP did not attempt to access their metadata.

Alternatively, if metadata had identified the journalists’ sources, it is less clear why these dramatic developments took place.

After 2015, journalists were advised to avoid using their mobile devices in source communications. They were also encouraged, wherever possible, to encrypt communications.

But in 2018, the government went some way to closing down this option when it introduced the complex and highly controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.

As well as expanding computer access and network access warrants, the Act provided a means for government agencies to co-opt those in the telecommunications industry to assist agencies with their investigations. This could include covertly installing weaknesses and vulnerabilities in specific devices, circumventing passwords or allowing encrypted communications to be decrypted. A warrant would then be required to access the device and communication data.

It is impossible to know whether Australian journalists have been targeted under the Act or had weaknesses or spyware installed on their personal devices. This week’s raids suggest the AFP would be prepared to target journalists under this framework in order to identify journalists’ confidential sources.

However, this could only be done for some purposes, including in the investigation of a secrecy offence.

Secrecy offences

In June 2018, the government introduced a suite of new espionage, foreign interference and secrecy offences. This included an offence of current or former Commonwealth officers communicating information, obtained by virtue of their position, likely to cause harm to Australia’s interests. This offence is punishable by imprisonment for seven years. If the information is security classified or the person held a security classification, then they may have committed an “aggravated offence” and be subject to ten years’ imprisonment.

This week’s raids reveal just how common it is for public interest journalism to rely on secret material and government sources.




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Government needs to slow down on changes to spying and foreign interference laws


But the journalists themselves may also be facing criminal prosecution. The 2018 changes include a “general secrecy offence”, whereby it is an offence (punishable by imprisonment for five years) to communicate classified information obtained from a Commonwealth public servant. Fordham’s radio broadcast about intercepted boat arrivals was, for example, a clear communication of classified information.

Again, journalists are offered some protection. If prosecuted, a journalist can seek to rely on the “journalism defence” by proving that they dealt with the information as a journalist, and that they reasonably believed the communication to be in the public interest. The meaning of “public interest” is unclear and, in this context, untested. However, it will take into account the public interest in national security and government integrity secrecy concerns as well as openness and accountability.

Protecting media freedom

Australia has more national security laws than any other nation. It is also the only liberal democracy lacking a Charter of Human Rights that would protect media freedom through, for example, rights to free speech and privacy.

In this context, journalists are in a precarious position – particularly journalists engaged in public interest journalism. This journalism is vital to government accountability and a vibrant democracy, but has a tense relationship with Australia’s national interests as conceived by government.

National security law has severely undercut source confidentiality by increasing and easing data surveillance. National security laws have also criminalised a wide array of conduct related to the handling of sensitive government information, both by government officers and the general public.

And these laws are just a few parts of a much larger national security framework that includes: control orders, preventative detention orders, ASIO questioning and detention warrants, secret evidence, and offences of espionage, foreign interference, advocating or supporting terrorism, and more.

JIWs, and the inclusion of a journalism defence to the secrecy offence, recognise the importance of a free press. However, each of these protections relies on a public interest test. When government claims of national security and the integrity of classifications is weighed into this balance, it is difficult to see how other interests might provide an effective counterbalance.

One of the most disturbing outcomes is not prosecutions or even the raids themselves, but the chilling of public interest journalism. Sources are less likely to come forward, facing risk to themselves and a high likelihood of identification by government agencies. And journalists are less likely to run stories, knowing the risks posed to their sources and perhaps even to themselves.

Against this background, the calls for a Media Freedom Act, such as by the Alliance for Journalists’ Freedom, have gained significant traction. It may take this kind of bold statement to cut across the complexities of individual laws and both recognise and protect the basic freedom of the press and the future of public interest journalism in Australia.The Conversation

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

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

Infographic: who’s who in Labor’s shadow ministry


Emil Jeyaratnam, The Conversation and Justin Bergman, The Conversation

There were a couple of big questions before the new Labor leader, Anthony Albanese, announced his shadow ministry on Sunday.

One of those was where would former leader Bill Shorten end up after the party’s humbling loss in last month’s federal election. (The answer: head of the NDIS and government services portfolio.)

One of the biggest beneficiaries of Albanese’s changes was Kristina Keneally, who was handed the powerful portfolio of home affairs – opposite an immediately dismissive Peter Dutton – in addition to immigration and citizenship. She will also be the deputy opposition leader in the Senate.

Our experts have already analysed the chief challenges faced by the new ministers in Prime Minister Scott Morrison’s cabinet – now, we’re asking them to look at Labor’s shadow ministers, as well.

In some cases, the shadow ministers hold more than one portfolio. To simplify the policy analysis, we’ve chosen a key policy area for which they’re responsible and asked our experts to analyse this.

The Conversation

Emil Jeyaratnam, Data + Interactives Editor, The Conversation and Justin Bergman, Deputy Editor: Politics + Society, The Conversation

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