Posts tagged ‘law’

Fifty-five pieces of legislation

THE thing politics has over policy is that it is a sport.  When The Age tried to call this out in its editorial asking for the head of Julia Gillard, it was roundly condemned for not setting the agenda of policy themselves instead of focussing on palace politics. But would The Age have sold as many copies if it focussed too much on the what when the who is infinitely more interesting?

We all profess to be tired of the Gillard-Rudd business but you can be sure the hashtag spill would go ballistic if and when the long drawn-out battle actually ever takes place.  Everyone would want to know the result.  The Age know the personal drama is infinitely more interesting than the 55 or so pieces of legislation yet to pass in the final week of the 43rd parliament of Australia.

But here where I don’t have to pander to profit or personal drama, I can take the time to look at all 55 remaining bills, in alphabetical order.  They cover a full gamut of legislative issues such as environment, the world economy, employment, education, tax reform and agriculture.

You may or may not find these interesting reading and they are mostly ignored by the media.

But this is what parliament is for: to change and enact law. Each of the 55 bills is important to someone or something; a truth the independent members of parliament (who raised most of them) know all too well. I’m hoping you’ll feel a little more informed if you read them; I did for writing them down.

1. African development bank Bill 2013 

Enables Australia to become a member of the African Development Bank Group by authorising the payments required to subscribe to membership shares in the African Development Bank and meet membership and ongoing subscriptions to the African Development Fund.

According to Bernie Ripoll (Lab) the bank promotes sustainable economic growth to reduce poverty in Africa. The bank currently has 78 member countries, comprising 54 African and 24 non-African countries. In 2011, the Independent Review of Aid Effectiveness recommended that Australia join the group as it would represent value for money, and be a high-level indication of Australia’s commitment to development in Africa.

2. Australian Jobs Bill 2013 

The far-reaching bill would require private and public projects of half a billion dollars or more to develop an Australian Industry Participation plan. A new quango, the Australian Industry Participation Authority would be set up to administer and monitor compliance of the plan reporting back to parliament. In the first debate, Liberal backbencher Craig Kelly  saw an obvious problem: The measure would see government officers embedded in business, “just like it used to be in the Soviet Union”.

The planning regime itself will cost $1 billion dollars to implement, so I wonder if it will be subject to an Australian Industry Participation plan if it passes.

3 Australian Ownership Bill 2013

This Katterbill wants to limit foreign investment in Australian agribusiness and agricultural land. It would do this requiring the Foreign Investment Review Board to take “the national interest” (a contested concept if ever there was one) into account in foreign investment and also prevent non-Australians from owing half or more of an agribusiness or land more than four hectares.

4 Aviation Laws Amendment (Australian Ownership and Operation) Bill 2013

Another Katterbill to amend air acts to ensure Australian international and domestic air services are at least 51% Australian owned and operated, do at least 80% maintenance in Australia and use only Aussie crews.

5.  Broadcasting Services Amendment (Advertising for Sports Betting) Bill 2013 [No. 2]

Greens bill to amend the 1992 broadcasting act to prohibit ads on odds, restrict betting ads to after 9pm, and prohibit “non-ad ads” and freeze betting ads before sports broadcasts. Given the 1992 act is ludicrously pre-Internet, this seems papering over some enormous cracks.

6. Competition and Consumer Amendment (Australian Food Labelling) Bill 2012

This one from the Greens wants to amend the Competition and Consumer Act 2010 to: specify country of origin on food with labelling based on the weight of the ingredients.

7.  Competition and Consumer Amendment (Strengthening Rules About Misuse of Market Power) Bill 2013 is an adjunct of 6 to strengthen the act to protect people in complicated supply chains eg where a $1 litre of milk to the customer is a net cost to the producer.

8. Customs Amendment (Prohibition of Certain Coal Exports) Bill 2013

Amends the Customs Act 1901 to prohibit the export of coal mined in the water catchment valleys and district of Wyong (NSW) and enable the minister to prohibit the export of coal mined “in other areas”. This is Craig Thomson’s attempt to shut down a possible Wallarah Two underground mine despite no politician ruling it in at the moment. “People in electorates trust the laws, they don’t necessarily trust the politicians,” Thomson said. “And that’s why I tabled a bill today that looks to restrict the export licences of miners in the Wyong Shire in particular, but more broadly any other area that the minister by legislative means, deems to be appropriate.”

9 Dairy Industry (Drinking Milk) Bill 2013

Katter’s call to register dairy regional representative bodies and Fair Work Australia to determine a modern award for dairy farmers with dairy farmers and processors to establish enterprise agreements and collective negotiations.

10 Early Years Quality Fund Special Account Bill 2013

This one from Peter Garrett. Establishes the Early Years Quality Fund Special Account to provide $300m over two years to long day care services to pay employees wages, costs and expenses and is an early pay off for Gonski in an attempt to make kindy-teaching a better paying job.

11 Environment Protection and Biodiversity Conservation Amendment (Making Marine Parks Accountable) Bill 2012 [No. 2]

Townsville LNP’s George Christiansen’s “Making Marine Parks Accountable” bill amends the Environment Protection and Biodiversity Conservation Act 1999 to allow Government to set an area of sea, or land and sea, as a Commonwealth reserve with the help of an independent scientific reference panel and a stakeholder advisory group. Christiansen wants to protect his fishing constituents access to marine parks.

12 Environment Protection and Biodiversity Conservation Amendment (Moratorium on Aquifer Drilling Connected with Coal Seam Gas Extraction) Bill 2013

Amends the Environment Protection and Biodiversity Conservation Act 1999 to place a two year moratorium on aquifer drilling connected with coal seam gas extraction; and impose penalties for any contravention. Katter wants to ban CSG mining for 24 months.

13 Fair Indexation of Military Superannuation Entitlements Bill 2012

Katterbill to index military retirement benefits the same way as Australian age and service pensions, currently based on a higher-end consumer price index.

14 Fair Work (Job Security and Fairer Bargaining) Amendment Bill 2012

This Greens bill amends the Fair Work Act 2009 to expand enterprise agreements, settle disputes, and make provisions on industrial action. The object is to consider items of job security, full employment and work/life balance when the full bench makes a workplace determination.

15 Fair Work Amendment (Arbitration) Bill 2013

Katterbill to remove the restriction of Fair Work Australia dealing with disputes by arbitration, mediation or conciliation, or by making a recommendation or expressing an opinion.

16 Foreign Acquisitions and Takeovers Amendment (Cubbie Station) Bill 2012

Katterbill to stop the foreign takeover of Cubbie cotton station near Dirranbandi, Qld.

17 Grape and Wine Legislation Amendment (Australian Grape and Wine Authority) Bill 2013

Ag Minister Joe Ludwig’s bill to create a new Grape and Wine Authority by merging Grape and Wine Research and Development Corporation (GWRDC) and the Wine Australia Corporation. The merger would align strategy and achieve efficiency gains.

18 Homelessness (Consequential Amendments) Bill 2013

Social inclusion minister Mark Butler’s bill introduced with the Homelessness Bill 2013, to repeal the Supported Accommodation Assistance Act 1994 and makes an amendment to the Commonwealth Electoral Act 1918. The bill ensures homeless people can still vote in elections.

19 Homelessness Bill 2013

Butler’s main bill which provides for the recognition of homeless people and those at risk of homelessness. There is a recognition of homelessness and an aspiration everyone should have a home. The aim is to remove barriers in social inclusion and improve service delivery.

20 Imported Food Warning Labels Bill 2013

This Katterbill imposes penalties on those who don’t label imported food properly.

21 Income Tax Rates Amendment (Unlawful Payments from Regulated Superannuation Funds) Bill 2012

Bill Shorten’s bill – Combined with the Superannuation Legislation Amendment, the bill amends the Income Tax Rates Act 1986 to impose a 45 per cent tax on superannuation benefits that are illegally released early. See also 50.

22 Infrastructure (Priority Funding) Amendment Bill 2013

Greens bill to amend the Infrastructure Australia Act 2008 to prioritise Commonwealth rail funding over roads, with the exception of road projects designed to fix an urgent road safety issue or on which construction has already begun.

23 Intellectual Property Laws Amendment Bill 2013

Greg Combet’s bill to tighten IP laws on crown use, implement a TRIPS protocol to supply developing countries with generic versions of patented medicines, protect plant breeder IP and bring in joint patent regime for Australia and New Zealand.  Despite its international importance, this huge bill affecting several acts of parliament has got zero attention in local media as far as I can tell. It features in International Business Times which said the law would enable Australian companies to respond to future health crises in less developed nations.

24 International Organisations (Privileges and Immunities) Amendment Bill 2013

Bob Carr’s bill to amend the International Organisations (Privileges and Immunities) Act 1963 to give privileges and immunities to the International Committee for the Red Cross and the International Criminal Court. The first part is required because Australia has signed an MOU with the Red Cross making it a legal entity while the second provides support for victims in ICC trials and removed a roadblock to Australia’s accession to the ICC Agreement on Privileges and Immunities.

25 Live Animal Export Restriction and Prohibition Bill 2013

Andrew Wilkie’s bill calls for the end to live animal export by 2017 and in the interim ensure “satisfactory treatment” before slaughter.

26 Malabar Headland Protection Bill 2012

Minister for State Gary Gray’s bill provides for the protection of Malabar Headland following divestment to New South Wales. Malabar Headland is in south-east Sydney and was declared a 70 hectare national park in 2010. It was transferred to NSW in 2012 after remediation of the site. The bill ensures Commonwealth oversight of the site.

27 Marine Engineers Qualifications Bill 2013

Andrew Wilkie’s bill to amend marine regulations to ensure Australian standards are followed despite the rundown of Australia’s merchant fleet.

28 Marriage Equality Amendment Bill 2012

Greens bill to allow gay marriage. Likely to fail due to Liberal block of conscience vote. We may have to wait a few years yet for parliament to catch up with public opinion on this.

29 Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013

The Coalition’s Scott Morrisons’ bill to restore two new temporary protection visa classes lasting three years. One is the offshore entry TPV for refugees entering at an “excised offshore place” (eg Christmas Island) but who meet Australian protection obligations, the other a “secondary movement” offshore visa which is the same as above except the person is a non-citizen who transited in a country other than Australia where the person could have sought protection.

30 Migration Amendment (Temporary Sponsored Visas) Bill 2013

Immigration Minister Brendan O’Connor’s variation on the TPV bill and one of the few bills gathering media attention due to the furore over 457 visas which are a subclass of TPVs.  It require sponsors in the TPV program to do Australian labour marketing testing with Fair Work inspectors oversight before employing someone on these visas.

31 Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

and 32 Military Court of Australia Bill 2012

Nicola Roxon’s bill (from her time as A-G) to establish the Military Court of Australia as part of the Federal Court to overcome the High Court challenge to the 2007 Military Court to deal with widespread military abuse. Interestingly, the court case Lane v Morrison that sank the previous court came out of a recruitment drive here in Roma in 2005. After a round of golf and drinks, Lane supposedly ”tea-bagged” an army sergeant but denied the charge before the military court. Lane successfully argued the court was unconstitutional.

33 Minerals Resource Rent Tax Amendment (Protecting Revenue) Bill 2013

Greens amendment to the ill-fated Minerals Resource Rent Tax Act 2012 to disregard increases in state royalties after 1 July 2011 when calculating royalty credits for the tax.  Adam Bandt’s objective is to protect tax revenue from being eroded by increased State Government royalties.

34 National Electricity Bill 2012

Rob Oakeshott’s bill to make the national electricity law a Commonwealth law rather than state law. Oakeshott said the states electricity networks have seen the biggest increases in electricity prices  and still have the biggest say in how the pricing rules are set.
“There’s a clear conflict of interest in states owning monopolies and regulating monopolies at the same time,” he said.

35 National Health Reform Amendment (Definitions) Bill 2013

Amend definitions in the 2011 National Health Reform Act to allow the new National Health Performance Authority report on the performance of hospitals and primary health care organisations.

36 Native Title Amendment Bill 2012

Nicola Roxon’s A-G bill to amend the Native Title Act 1993 to disregard some historical extinguishment of native title and broaden the scope for voluntary indigenous land use agreements. 

37 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011

Families Minister Jenny Macklin’s bill to clarify provisions related to ‘keeping in touch’ days. This means that they can come to work for up to 10 days during their parental leave, without it affecting their unpaid parental leave entitlements.

38 Pay As You Go Withholding Non-compliance Tax Bill 2011

Wayne Swan’s bill imposes a pay as you go (PAYG) withholding non-compliance tax on directors and some associates where their company has a PAYG withholding liability for an income year and the director or associate is entitled to a credit for amounts withheld by the company during the income year.  These amendments reduce the scope for companies to engage in fraudulent phoenix activity or escape liabilities and payments of employee entitlements.

39 Primary Industries (Customs) Charges Amendment (Australian Grape and Wine Authority) Bill 2013

Joe Ludwig’s bill amends three acts to form the new Australian Grape and Wine Authority (see 17).

40 Primary Industries (Customs) Charges Amendment Bill 2013

Ludwig’s bill removes product specific maximum rates for R&D charges and marketing charges as changing them is difficult, slow and expensive. See also 42 and 48.

41 Primary Industries (Excise) Levies Amendment (Australian Grape and Wine Authority) Bill 2013

Another Ludwig bill changing three acts to form the new Australian Grape and Wine Authority (see 17 and 39).

42 Primary Industries (Excise) Levies Amendment Bill 2013

Another Ludwig bill to implement the government’s rural R&D policy, to remove product specific maximum levy rates for R&D levies and marketing levies. See 40 and 48.

43 Public Interest Disclosure (Whistleblower Protection) (Consequential Amendments) Bill 2012

Wilkie bill and companion to number 44 with consequential amendments to four acts.

44 Public Interest Disclosure (Whistleblower Protection) Bill 2012

Wilkie’s bill provides a comprehensive definition of public interest disclosure and provides protections to public officials to make such disclosures. 

45 Reducing Supermarket Dominance Bill 2013

Katterbill to reduce market share to 20% by enforced divestiture over six years and establish a Commissioner for Food Retailing.

46 Renewable Fuel Bill 2013

Katterbill to regulate renewable fuel and mandate 5% ethanol by 2017 and 10% by 2020.

47 Reserve Bank Amendment (Australian Reconstruction and Development Board) Bill 2013

Katterbill to establish an Australian Reconstruction and Development Board to fix financial arrangements of stressed Australian agriculture businesses and associated industries.

48 Rural Research and Development Legislation Amendment Bill 2013

Ludwig’s third R&D bill affecting 8 acts. See 40 and 42.

49 Student Identifiers Bill 2013

Tertiary Education Minister Chris Bowen’s bill to introduce a national student id from 2014. Needed because there is no single repository of records for vocational education and training.

50 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures) Bill 2012

In conjunction with 21, Bill Shorten’s complex bill to ensure civil and criminal penalties for promoters illegal early release of superannuation benefits, part of his “stronger super”  reforms.

51 Tax Laws Amendment (Disclosure of MRRT Information) Bill 2013

Joe Hockey’s bill to provide an exception to the prohibition imposed on taxation officers about the disclosure of information regarding the tax affairs of a taxpayer. Hockey wants to remove doubt tax officers can provide information about the MRRT when the Minister wants to make it publicly available. The intention is to reveal how much the mining tax has raised, without breaching tax privacy laws.

52 Tax Laws Amendment (Special Conditions for Not-for-profit Concessions) Bill 2012

Treasurer Swan’s bill to amend taxation legislation to restate the ‘in Australia’ special conditions for income tax exempt entities. The bill is raised after the High Court found charities are considered to be pursuing their objectives principally ‘in Australia’ if they merely operate to pass funds within Australia to another charity that conducts its activities overseas.

53 Telecommunications Legislation Amendment (Consumer Protection) Bill 2013

Communications Minister Stephen Conroy’s bill amends the Do Not Call Register Act to clarify who is responsible for making telemarketing calls and faxes where third parties are involved, vary industry codes and tighten the ombudsman standards.

54 Veterans’ Entitlements Amendment (Claims for Travel Expenses) Bill 2010

Julia Gillard’s own bill to amend the Veterans’ Entitlements Act 1986  to extend the time period for lodging a claim for non-treatment related travel expenses from 3 to 12 months and enable further extensions of time in exceptional circumstances.

55 Voice for Animals (Independent Office of Animal Welfare) Bill 2013

Greens bill to establish the Office of Animal Welfare as an independent statutory authority which was originally planned by Labor. Bandt said the Office would be a centre of excellence for animal welfare science and law and work to harmonise and improve animal welfare laws across the country. He also said  it would give animals a voice in parliament, independent of the Agriculture Department and Ministry, to reduce animal cruelty.

June 25, 2013 at 12:34 am Leave a comment

America spying on the rest of the world

Malcolm Turnbull is one of the few Australian politicians to go on the attack after revelations about US spying on oversees citizens through its internet and telecommunications services. The spying by the program called PRISM was revealed by the Guardian and the Washington Post on Thursday. Turnbull said Australians would be troubled by “large scale, covert surveillance of private data belonging to non-US citizens” held by Google, Facebook, Apple, Microsoft and Amazon.

Turnbull said he thought Australians had always understood data housed on US servers was subject to US laws such as the Patriot Act.  “But (PRISM) suggests there is extensive surveillance and interception of foreign citizens’ data without a court order and indeed without the knowledge of the internet companies themselves,” he said. Leaving aside his use of “Australians” to mean his own view, Turnbull is right and with the move to cloud computing, the issue has increasingly profound implications for international relations.

President Barack Obama blithely skipped over those concerns when he admitted yesterday the Guardian and Washington Post stories were broadly accurate. Quizzed yesterday by US journalists on the extraordinary revelations of the last few days, Obama denied they were using tech companies’ information to spy on US citizens and people living in the US.  But he did not deny they used the data from outside America. It was a short press conference with one question and one follow-up and the American journalists preferred to use the follow-up to ask him was it okay to leak rather than ask the larger question of whether it was okay to spy on all foreigners.

There were actually two separate revelations wrapped up in the one. On Thursday the news broke the FBI had a secret court order gaining access to all of phone company Verizon’s logs on a daily basis according to Patriot Act (2001), 50 USC section 1861.  Under 50 USC § 1861 the FBI can request “any tangible things” to get foreign intelligence terrorism information against non US citizens or indeed against US citizens if it doesn’t infringe their first amendment rights.

The FBI then handed the data over to the National Security Agency.  The NSA doesn’t get the calls themselves but they get all the IT metadata which records details such as who made the call, where and when and for how long they called.  This is arguably defensible as being a non-too-intrusive invasion of privacy. And it only affects the US. Obama dealt with it easily enough yesterday. “Nobody is listening to your telephone calls,” he said. The gathering of metadata was just a “modest encroachments on privacy.”

But Obama was on less firmer ground with the second part of the revelation, which has more profound consequences worldwide. This is the NSA program PRISM “a covert collaboration between the NSA, FBI, and nearly every tech company you rely on daily.”  Starting in 2007 under President Bush and recently renewed by Obama using another section of the Patriot Act, the law allows for the targeting of any customers of participating firms who live outside the US and also those Americans who communicate with people outside the US.

The FBI’s Data Intercept Technology Unit program has been gradually extended to direct access the servers of Facebook, Google, Microsoft, Yahoo, YouTube, Skype, AOL, Apple and video chat company Paltalk.   Just as in the Verizon case, the FBI passed on the information to NSA.  According to WaPo, PRISM can “literally watch your ideas form as you type.”  The difference with Verizon is that this deal gives the NSA full access not just to the fact that an email or chat happened, but they also get the contents.

In the press conference, Obama refused to mention PRISM by name.  These were classified operations overseen by Congress and the Foreign Intelligence Surveillance (FISA) Court, “With respect to the Internet and emails, this does not apply to US citizens, and it does not apply to people living in the US,” he said.

Facebook and Google have both denied involvement in the program.  Steve Zuckerberg said they never received a blanket request or court order from any government agency asking for information or metadata in bulk and would fight it aggressively if they did. Google boss Larry Page’s response was “WTF”. He said they never heard of Prism and like Facebook had never authorised large scale direct access to their information. Zuckerberg and Page have plausible deniability but someone in these organisations would have been aware of the court orders.  The one notable absentee from the list was Twitter which has a history of data request non-compliance, though its data is also publicly available.

Obama began his defence yesterday by reminding journalists of  the “two biggest commitments” of his presidency: “to keep the American people safe; and… to uphold the Constitution.” Obama repeated his call for the US to end its “perpetual war mindset” (a comment that caused Wonkblog to ask if Obama himself was the leaker) but a balance would remain between privacy concerns and the need to keep Americans safe, because, “there are some trade-offs involved.”

Obama is finding those trade-offs difficult to deal with, like Bush before him. Keeping 21st century Americans safe with an 18th century constitution is an impossible task. But at least Americans have some safeguards against their government. The rest of us, as Malcolm Turnbull reminds us, have none.

June 9, 2013 at 12:22 am Leave a comment

Why Sally Bercow deserved to lose the defamation case and why it won’t chill Twitter

While it seems absurd at first glance, the words “*innocent face*” were correctly ruled defamatory by the England and Wales High Court this week. It doesn’t matter they appeared in a tweet as Twitter is publishing, nor is there any freedom of speech issue as the right to express a reasonable opinion remains – as long as it is obviously opinion. The UK Telegraph gleefully identified the tweeter Sally Bercow as a “Labour activist” but this case has nothing to do with her politics.

The full text of Bercow’s offending tweet was “Why is Lord McAlpine trending? *Innocent face*” which she wrote on the night of November 2, 2012. These terse smart-assed bon mots are common on Twitter and rely on sardonic humour to carry across their meaning. The problem was there was a lot of meaning in Bercow’s tweet, particularly at that time. The BBC had just aired its flagship current affairs program Newsnight with explosive allegations of a 1980s-era Tory sexually abusing boys in North Wales in the 1970s and 80s. Though the BBC didn’t name the Thatcher era adviser, it didn’t take long for people on Internet to publicly identify Alistair McAlpine as the suspect.

Many of these people took to Twitter to voice their opinion. So many in fact, that Lord McAlpine started to list among the trending subjects in Twitter. If Sally Bercow had just asked “Why is Lord McAlpine trending?”, there would have been no case to answer. Bercow could simply have said she was genuinely bewildered. With plausible deniability, no one could have accused her of defamation and it would have been lost in the growing traffic of comments. But the “*innocent face*” complete with emotion-defining asterisks undermined that argument. Then-regular Twitter user Bercow (she has since left her spot abandoned) knew full well why Lord McAlpine was trending and was deliberately stirring the pot with her 56,000 followers. Unfortunately for Bercow, McAlpine was innocent of the charges.

The BBC had commissioned the Newsnight story from an independent not-for-profit news organisation called the Bureau of Investigative Journalism (BIJ). BIJ’s Angus Stickler pitched the child abuse story to acting Newsnight editor Liz Gibbons. Stickler was accusing McAlpine in his piece but did not have enough evidence to name him. Stickler’s centrepiece interview was with sexual abuse victim Steve Messham, at his Wrexham care home. Messham said he had been taken in a car to a local hotel and abused more than a dozen times. Newsnight said the abuser was “a prominent Thatcher-era Tory figure”.  In editorial conferences, Gibbons did consider offering McAlpine a right of reply in the story but felt that was not appropriate as he was not named.

Stickler’s story was based on mistaken identity. The Waterhouse Inquiry of 1997 into child abuse in Bryn Estyn Children’s Home in north Wales  had previously examined Messham’s claims. Rumour had gone out from Wrexham jail it was McAlpine’s cousin, prominent local businessman Jimmie McAlpine who had attacked him. There was a brief media frenzy in 1998 after this rumour had changed Jimmie’s name to his more famous cousin Alistair.  In the end Waterhouse’s report in 2000 found Messham’s story had no solid evidence to back it up.

There the matter rested for 12 years until Stickler re-heated it in the wake of the Jimmy Saville revelations of late 2012. A year after his death, Saville was accused of 214 acts of child sexual abuse over 50 years, many at BBC studios.  The BBC was aware of rumours of dodgy behaviour for most of that time but did nothing. Even after he died in 2011, Newsnight prepared a report on Savile’s sexual antics but shelved it for reasons still not entirely clear.

A year later with the Savile allegations in the open, the BBC was anxious to get back on the front foot and agreed to commission the BIJ piece. But they failed to heed the warning signs. A day before the show went to air, BIJ boss Iain Overton added fuel to the fire at Oxford University. There at a debate on the media’s influence on politics, he mentions a major expose airing on the BBC the day after. After the Chatham House rules debate, Channel 4 News’s political correspondent Michael Crick asked him  in front of others was the program about McAlpine. Overton replied with the classic non-denial denial “Well you said it”.  Crick then did what the BIJ and BBC didn’t and contacted McAlpine, who promptly denied the allegations.

On the morning of the airing, it didn’t take long for the Overton-Crick conversation to do the rounds but Overton didn’t stop there. He took to Twitter and said “If all goes well we’ve got a Newsnight out tonight about a very senior political figure who is a paedophile.” While the BBC was alarmed about Overton’s tweet and got him to apologise, it decided to go ahead with the airing. Its defence was the pool of people mentioned was large enough to avoid individual identification.

Meanwhile the alarms continued to ring. Crick also took to Twitter to say “the ‘senior political figure’ due to be accused by BBC of being paedophile denies allegations “+ tells me he’ll issue libel writ agst BBC.” Without naming McAlpine, Crick went to air on Channel 4 News at 7pm saying a “former senior Conservative official” denies any abuse. The BBC Show aired three and a half hours later. It did not use those final hours to offer a right of reply, despite Crick’s warning McAlpine would sue them. Ironically it was handicapped by its own processes in the wake of a child sex scandal with the regular experienced Newsnight editor suspended for his role in the Jimmy Saville story.

As soon as Newsnight aired, those who knew what Overton told Crick, aired their views online.  The Guardian’s George Monbiot wrote: “I looked up Lord #McAlpine on t’internet. It says the strangest things.” Monbiot could have used deniability too but the slightly mocking tone of “t’internet” undermined him. He later apologised to McAlpine and made a legal settlement, where Monbiot would carry out work amounting to £25,000 on behalf of three charities.

Monbiot admitted he contributed to the “febrile atmosphere” and the redtop media went berserk after these hints from cyberspace. They laid immediate siege to the 70-year-old McAlpine’s house. McAlpine was photographed packing up and leaving home with his suitcase. Within 24 hours the Guardian proved the BBC Newsnight program was wrong.  It did the research into the Waterhouse Inquiry that Stickler did not. Within 24 hours Messham apologised for a case of mistaken identity and Newsnight and BIJ were in the poo. The BBC and ITV later paid out £310,000 in libel damages to McAlpine and dozens of Twitter users made donations to charity over the false claims.

Yesterday it was Sally Bercow’s turn to face the wrath of the court.  Britain’s most senior libel judge, Justice Tugendhat, ruled the tweet was defamatory and had falsely tarred McAlpine as a paedophile. “I find that the tweet meant, in its natural and ordinary defamatory meaning, that the claimant was a paedophile who was guilty of sexually abusing boys living in care,” Tugendat said. “If I were wrong about that, I would find that the tweet bore an innuendo meaning to the same effect.”

Tugendhat said “sensible readers” among her 56,000 followers would have understood the meaning of *innocent face* to be “insincere and ironical”. It was “the last piece in the jigsaw” linking McAlpine with the allegation of guilt of child sexual abuse. “I see no room on these facts for any less serious meaning,” Tugendhat concluded.  As media lawyer Gerard Cukier told the Guardian, anyone is entitled to comment freely on any matter of public interest as long as the comments can be recognised as such, not “statements of facts or imputations such as the judge held Bercow’s comments to be.”

Bercow had crossed the line further than Monbiot and ended up being just another high profile victim of publicly not getting their facts right. Despite the hoo-hah over “the most expensive tweet in history” (for now), she can afford the fine – McAlpine did not pursue the small fry. It is nonsense to suggest it will have a “chilling effect on social media”. Millions of users won’t suddenly be scared to voice opinions – but they might be more careful how they express them. Twitter is used in many different ways, often badly as many of the protagonists in this story showed, but not all of them end up in court.

May 26, 2013 at 1:14 am 1 comment

Operation SATOUR – Recollections on the impact of the 1971 Springbok riots in Brisbane

A few weeks ago I received an invite to attend a talk at the Queensland Police Museum in Brisbane. The two hour talk was on the riots in Brisbane during the 1971 visit of the South African Springbok rugby team.  I was invited because of an article I wrote two and a half years ago about the Springbok riots which was inspired by an article on the riot in the Courier-Mail that day and was based on my reading of a chapter in the book called Radical Brisbane.

As it happens, I was in Brisbane last Sunday, the day of the talk, so accepted the invite. I was intrigued that the Queensland Police Force (now renamed as Qld Police Service) would host a session on what was clearly not one of their finest hours. The man who emailed me the invite was Barry Krosch  a name I was unfamiliar with. Krosch, I would later find out was a former police officer who spend nine years in the special branch and later assisted the Fitzgerald Inquiry which blew the lid on Queensland’s political and police corruption during the 70s and 80s.

Now retired to Joh Bjelke-Petersen’s town of Kingaroy, he is doing his masters at Griffith Uni on the study of the special branch. It was he who organised the many speakers on the day at the Police Museum and gave his own insights to special branch activities, though he was not in the force at the time of the riots. Krosch spoke about their interactions with ASIO and shared examples of their filing system which bordered on the obsessive –  the Springbok tour was called “Operation SATOUR” and filed under “5K” for ‘visits and ships’ not to be confused with ‘7K’ which catalogued those deemed ‘mentally unbalanced and cranks’.

Those that came along to the Museum to hear Krosch and others weren’t cranks but they probably weren’t a typical police audience either.  The MC on the day was Brisbane News Ltd boss David Fagan. I am not the biggest fan of Fagan nor his flagship product the Courier-Mail but he was a smooth and perfect host on the day. Fagan noted the subject under discussion had a very profound effect on Queensland politics for two decades. It strengthened the power of a vulnerable new Premier who could “barely string a sentence together” under the badge of law and order with “unfortunate consequences” while it radicalised a generation on the left. One later speaker – Terry O’Gorman – would  tell us how that radicalisation occurred.  Another radical from the era, the now-journalism professor Alan Knight, gave his eye-witness account as well as outlining the failures of the media to expose what happened, earning the Courier-Mail the title of Brisbane’s Pravda.

But it was Krosch’s thesis supervisor Professor Mark Finnane who opened the session with a wider political context for the 1971 riots. The riots did not magically appear from nowhere, Finnane argued, but were rather a continuation of major political ideas and conflicts affecting sport across Australia and the world. By the 1960s, the South African apartheid system was fully fledged and an increasingly obvious anomaly in post-colonial Africa. The world pressure was intense and found voice in South Africa’s exclusion from the British Empire and Commonwealth Games in Perth in 1962 and the Tokyo Olympics two years later. They were also suspended from FIFA in 1964 though not formally kicked out until after the 1976 Soweto riots.

But the British codes of rugby and cricket held out. Teams from Australia toured South Africa and when the South Africans came to Australia they were confronted by protests wherever they went. When the Springboks came in 1971, thousands marched against them in Melbourne and Sydney. Conservative governments in Canberra and the states hated the ‘leftist tendencies’ of the protesters but it was Joh who opposed with ‘special fervour’, as Finnane put it.

Lawyer and Australian Council for Civil Liberties president Terry O’Gorman took the story onwards from this point. O’Gorman now sees Joh’s actions as an abuse of power compounded by Australia’s lack of a Bill of Rights. But the protests did not register  immediately to him at the time. O’Gorman was a deeply Catholic and conservative young man and was studying law at the University of Queensland, oblivious to the left-wing protests going on around him. He was not involved on that Thursday, July 22 when police charged on the protestors outside the Springboks’ motel at Tower Mill. With the aid of agent provocateurs in the mob, the crowd was sent fleeing down the hill resulting in many serious injuries.

A day later O’Gorman heard the stories of students involved. Reformist police boss Ray Whitrod had tried to keep order but many zealous country officers equated protesters as commies and disobeyed him. O’Gorman immediately realised there was a disconnect between what he was learning about the principles of law and the lack of theoretical restraint in the police upholding those laws. He agreed to join the legal observer group on the day of the game.

The day remains etched in his memory with its fearful tension and excessive use of force. O’Gorman became of one of those that Fagan said were radicalised by the riots and a fierce opponent of the regime. He would have his revenge by cross-questioning Joh at the Fitzgerald Inquiry to devastating results. But O’Gorman wasn’t thinking about 1971 or 1989 when he concluded his talk, but rather could it happen again. The G20 meeting in Brisbane next year and the Commonwealth Games in 2018 will be tests of whether governments cloak themselves in law and order and whether police again equate protests with terrorism, he said. “It behoves us to ensure all voices are heard, including protest voices, just as police do their difficult job of protecting heads of state.”

March 2, 2013 at 10:42 pm 2 comments

On Jonathan Moylan and the Whitehaven coal hoax

The latest in a long line of Aussie hoaxes was perpetrated to great effect this week though its creator might yet pay a penalty of ten years and half a million bucks. Anti-coal activist Jonathan Moylan is in the wars for putting out a press release in the name of ANZ Bank on Tuesday. The release said the bank was divesting its $1.2b loan to Whitehaven Coal for its Maules Creek Coal Project. It was an important announcement. In Whitehaven’s own words, Maules Creek is “one of only a few remaining tier 1 undeveloped coal assets in Australia. It is also one of the largest coal deposits in Australia with 362 Mt of recoverable reserves.”

Before it could be exposed as a hoax, it triggered a stock market collapse for the coal company. While almost all of the losses were subsequently recovered before the day was out, Moylan’s actions raises serious political as well as ethical and legal issues. Using dubious means, he focussed attention on the important question about whether we should be investing in major coal projects in a time when fossil fuel emission is the biggest issue we face as a species.Maules Creek is in the heart of the rich Gunnedah Basin in NSW. That state and Queensland produce 97 percent of Australia’s black coal. It is an industry in decline with Australia producing 405 million tonnes of raw black coal in 2010-11 down from 471 Mt. in 2009-10. Yet Australia remains the world’s fourth largest coal producer and the world’s leading exporter with markets in Japan, South Korea, China, India and Europe. Coal fired generators are leading contributors (20 percent) to a greenhouse effect as heavy-grade emitters of carbon dioxide and methane into the atmosphere.

The Centre for Climate and Energy Solutions acknowledges fixing the coal issue will be difficult. Coal is cheap, is important for meeting energy needs in the developing countries, and has good lobby groups in countries like the US, which is the “Saudi Arabia of coal.”  Coal-fired generators could still play a role if carbon capture and storage (CCS) technology ever takes off, possibly 10-15 years away.  There would also be a need for a carbon market, priced at around $30 a ton of CO2 and a way of retrofitting CCS into existing technology.  An ANZ that truly considered its customers interests, would ensure such boxes were being ticked. But it has no plans to do so and there is no scrutiny of whether such interests are considered.

Instead, the argument focussed on Moylan with those dividing into two sides on whether his hoax ends justified the means. Those that supported him like Bob Brown identified Moylan’s action as a necessary civil disobedience that brought out in the open ANZ’s investment in coal.  That brought out the coalition’s Eric Abetz saying the ends did not justify the means. He turned it into an attack on Lee Rhiannon and the Greens’ “extreme political tendencies.”

Whoever is right, there is one thing for certain – Moylan planned his attack well. He put together a fake ANZ press template, a website and dummy email inbox online. The press release was a remarkable use of managerial language to frame an argument that would be quite unusual and brave in an Australian business context. Moylan used the voice of ANZ Corporate Communications to announce the bank would not support the project. Toby Kent, “Group head of corporate sustainability” was quoted to say the company wouldn’t invest in coal projects that cause “significant dislocation of farmers, unacceptable damage to the environment, or social conflict.” The decision was made after “a careful analysis of reputational risks and analysis of the returns on this mine in the current climate of high volatility in the coal export market.”  The released concluded with the statement ANZ was undertaking “a review of coal and gas investments on productive agricultural lands and areas of high biodiversity.”

Moylan’s fake ANZ release was quickly picked up by AAP Newswire who failed to conduct any of the basic identity checks that would have exposed the hoax. At the bottom of the emails are phone numbers for Toby Kent and Joanne McCulloch “Media Relations Advisor” which if anyone had bothering phoning would have quickly exposed this email as a hoax.  Either that or a quick check of ANZ’s database of media releases would have been enough to dispel, or at least doubt, the information.

Instead AAP swallowed the news whole and provided it directly to the markets. When traders in the Australian Stock Exchange saw the newswires shortly after midday Tuesday, they went ballistic. Whitehaven bore the brunt as 85% owners of Maules Creek Coal. Maules Creek is 18km north-east of Boggabri on the Kamilaroi Highway between Narrabri and Gunndah. It is also just 16km from the railway line servicing the coal terminals at the Port of Newcastle, 360km to the south-east. Maules Creek’s current resources are expected to support a large open cut mining operation for 30 years at an average saleable coal production rate of 10.8 million tonnes per annum (Mtpa). Subject to approvals, the first coal production will commence in mid 2013, with saleable production exceeding 10Mtpa from 2016 onwards.

But it was a dead duck without ANZ’s investment, and within minutes Whitehaven shares plunged almost 10 percent from $3.52 to $3.21. Whitehaven Coal lost more than $276 million in market value. It capped off a bad year for the company since it merged with Nathan Tinkler’s Aston last April giving him 19.4 percent ownership. The share price has lost over half its value since then with CEO Tony Haggarty and the board blaming it on uncertainty due to Tinkler’s financial woes  - they want him to divest to institutions. Tinkler was quick to return fire on Haggarty and the board saying he wanted to increase his holding not decrease it.

That plan may be in tatters after Tuesday. The price did not recover until the real ANZ responded with a media release (pdf) entitled “Fraudulent media release regarding Whitehaven Coal”. This release (which looked remarkably like the fraudulent one) said ANZ remained “fully supportive of Whitehaven Coal.”
At the end of trading, Whitehaven was just 2c down on the day reflecting the fact there were other issues with the project. The damage done to Tinkler, was variously estimated to be anywhere between $50m and $180m (assuming it wasn’t him who picked up the shares when they were on the rebound).

Whatever the damage to Tinkler or Whitehaven, Moylan will suffer significant collateral damage. There is a strong prima facie case his actions were illegal according to Section 1041E of the Corporations Act 2001 (Cth).  That act states it is an offence if a person makes a knowingly false statement that is likely to make people dispose of shares. The maximum jail term for individuals is 10 years, with fines of up to $495,000. Organisations face fines of up to $4.6 million.

The Australian Securities Investment Commission said it would be investigating whether there had been a breach of Corporations Act rules on false or misleading statements. According to dean of law at the University of Western Sydney Michael Adams the legislation that deals with corporate fraud imposes a high penalty on false or misleading statements about traded securities on the ASX. Adams believes a successful prosecution will hang on the difference between a public nuisance and civil disobedience. “A protest normally provides publicity for a cause and brings the matter to the general public’s attention, but causes little harm to the community,” Adams said. “A fraud – and in particular one that impacts on the share market – has huge consequences”.

Research fellow on ethics Edward Spence picked up on Abetz’s argument about the ends and the means. Spence said Moylan’s ethical failings were harmful to the “integrity of the digital informational environment”. This is the environment whose trustworthiness, Spence said “we all rely on to conduct our legitimate informational transactions.” We are not only biological beings, he said but also and increasingly informational beings. “When the informational environment is harmed we are also harmed.”

Spence may be exaggerating the harm here as it ignores the fact that checks and balances such as AAP did not do its job properly. Nor did any of the rest of the media use the hoax to expose ANZ’s dealings with the coal industry. Why didn’t anyone ask the bank if they would do “a review of coal and gas investments on productive agricultural lands and areas of high biodiversity”.Why is it acceptable for the bank to continue to invest in projects that cause “significant dislocation of farmers, unacceptable damage to the environment, or social conflict?”

We’re waiting.

January 13, 2013 at 12:33 am 1 comment

Brian Leveson – media personality 2012

The 2012 Woolly Days media person of the year is Brian Leveson. Leveson is a jurist not a journalist but his impact on journalism and the world of media this year has been profound.
The year 2012 will not go down as a great year for the world’s media. While the world’s business-as-usual pattern of production and consumption sees it barrelling down a path towards a 4 degree increase in temperature by 2100, the focus of most media attention is ever increasingly the deeply superficial.
Commercial media have always fulfilled two purposes: to make money and to inform but it is the profit imperative which is winning clearly at the moment. The large multi-national conglomerates that own media stock look no further than the bottom line when it comes to meeting deadlines. Issues like news values and ethics are a poor second if there is no payback. Meanwhile shareholder disquiet of falling ratings or circulations can be managed quarter to quarter by cost cutting and doing more with less.  There is as a result according to Michael Mandel, a “shift in journalistic employment to non-traditional industries, an increased in the self-employed, a delayering of journalism, and perhaps lower pay.”
Brian Leveson admitted as much on his recent visit to Melbourne. The closure of a large number of newspapers has reduced the extent to which local government, health, education and the courts can be held to account. “Society will be less well served as a result”, he said. Yet Leveson was aware that even if journalism jobs are becoming diffused and of less value, the media they serve remain powerful players as editorialists, chroniclers, sensemakers, muckrakers and watchdogs.
Their contract with the public to perform these roles is based on trust. The one to many broadcast model of television and the major papers ensured they always had the microphone to drown dissent. The internet and web2.0 changed all that and disapproval can amplify virally if compelling enough. The web further undermining the media’s privileged modus operandi by allowing a multiplicity of blog voices harvesting free online content often with more sagacity and insight than the journalists. Social media has forced big media to become more humble in their dealings with the public they profess to “serve”.
There remains pockets of strong resistance, with Rupert Murdoch’s News Corp leading the counter-assault. This old fashioned News and Entertainment Empire (one of the few not owned by a non-news company) remains convinced it does not need to answer its critics. China is a rare failure but In the US, Fox News is highly successful while his 2011 plan to buy the 60.9 percent of British cable company BSkyB it did not own was just a whisker away from being successful when undone by fine journalism.
Revelations by the Guardian journalist Nick Davies and his editor Alan Rusbridger brought the sordid hacking affair to light. The shadowy practices not only showed the need for profit greatly exceeded all other motives but described the contempt News had for its own audience. With the weight of evidence growing Prime Minister David Cameron appointed Justice Leveson in June 2011 to investigate the culture, practices and ethics of the British press as well as the dealings between the press, politicians and the police.
As testimony followed testimony, it was clear much was rotten in Murdoch’s hamlet.  It wasn’t just the attitude that privacy was for paedo’s as former News of the World journalist Paul McMullan espoused, it was the scene of serious crime. As November 2012, there had been 90 arrests on charges of interception of mobile phone messages, payment to public officials, data intrusion. The Inquiry would expose potentially corrupt dealings between senior members of the media, political parties and the police.
In nearly nine months of oral hearings, almost all available to transcript or watch online, involving 337 witnesses and 300 statements, the Inquiry became “the most public and most concentrated look at the press” Britain had ever seen. It enormous resonance not only in Britain but wherever British legal, ethical and press traditions operate, such as Australia. The numerous celebrities who portrayed themselves as “fair game” to an uncaring media, added to the notoriety of the charges. Australian media were quick to distance themselves from the phone hacking but there but for the grace of god go they at any lengths for a story.
With such a wide ranging brief, Leveson’s Inquiry had important things to say about plurality of ownership, privacy laws, and regulation of the press, all of which got the media companies quivering in their boots. Leveson was at pains to stress his inquiry was not an attack on press freedom. However, he said, with rights come responsibilities and all too often the press has simply ignored them. Neither the press or the press council ever launched investigations into allegations of serious misdoings such as breaches of data protection or trade in private and confidential information. Indeed when the phone hacking issue was raised, police executing a warrant were driven off the News of the World premises while the Press Complaints Commission criticised the Guardian for publishing the results of their investigations into the cover-up.
In November 2012 Leveson released his findings in a 2000 page report and 48-page executive summary.   Leveson proposed an independent replacement for the Press Complaints Commission which he said had no regulatory powers. It would have a dual role of promoting high standards of journalism while protecting the role of the individual. The new body would not include serving editors or politicians and it could impose fines and direct the appearance of corrections.
Leveson said participation needed to be universal for the body to be properly funded and succeed in its purpose. Those that declined to be involved would forfeit the right to the in-built arbitration process and therefore could not claim costs of any civil action even if they won because they had refused the cheaper route to justice. Leveson said such a body would not regulate the press.  He did not advocate prior restraint (a point of honour with the British press since Milton’s Areopagitica in 1644). He acknowledged how the important role media plays in society “as a critical witness of events” and accepted that media and journalists have several necessary privileges under the law as “one of the true safeguards of our democracy”. Leveson said his legislation would in fact enshrine “for the first time, a legal duty on the Government to protect the freedom of the press”.
However, the media did not see it that way.  Every newspaper in Britain except the Guardian rushed to denounce Leveson’s key recommendation. Biggest selling paper The Sun said it was “deeply alarmed” by the prospect of “State control of newspapers.” “Such a law could allow State officials to walk into papers like The Sun and censor stories,” it said. The Express also worried about political aprons: “To put politicians in ultimate regulatory control of newspapers and then expect them never to seek to use that power to constrain criticism or scrutiny is to place in them a degree of trust they frankly do not deserve.”
Prime Minister David Cameron – himself implicated by the evidence of the over-close relationship between press and politics – plumped for the press over Leveson. He expressed his reservations over the legislation for the independent process to recognise the new self-regulatory body.  “For the first time we would have crossed the Rubicon of writing elements of press regulation into the law of the land,” Cameron said. “We should I believe be wary of any legislation that has the potential to infringe free speech and a free press.”
High profile hacking victims such as JK Rowling expressed dismay at Cameron’s speech. “”Having taken David Cameron’s assurances in good faith at the outset of the inquiry he set up, I am merely one among many who feel duped and angry in its wake,” she said. The Hacked Off coalition gained 100,000 signatures calling on the government to comply with Leveson’s findings. Cameron’s coalition partners the Lib Dems are among them, so the matter rolls on, awaiting further political arbitration in the new year.
If Cameron didn’t reckon for the public outcry, then Leveson certainly did. He predicted the victims and the public would not accept the outcome “if the industry did not grasp the opportunity”. Following seven inquiries into the British press in 70 years, it “did not make sense to contemplate an eighth.” Whether short-term interest will prevail is a moot point, as is the longevity of the media’s powers of influence. What is not in doubt is that Brian Leveson has done us all a favour by pointing a strong light on its problems. Maybe then, the media can return to the problems that affect the rest of us.
Previous Woolly Days media personalities of the year
2009 Mark Scott
2010 Julian Assange
2011 Nick Davies and Alan Rusbridger

December 29, 2012 at 1:49 am 1 comment

Ukraine challenges Australia’s cigarette plain packaging laws

While those who detest the loss of national power to international bodies usually blame the UN, it is a World Trade Organisation decision this week that is posing the most serious threat yet to Australian government policy. The high-stakes decision is about cigarettes smoking, a global pandemic that kills six million people a year. Accounting for one in every 10 adult deaths, smoking is the most widespread public health threat in the world and the single biggest preventable cause of cancer.  At least 15,000 people die a year in Australia from smoking related causes.

Australia is now in the vanguard of public health initiatives against this pandemic.  Last year the Government passed ground-breaking legislation for cigarette plain packaging through a hostile parliament and then a high court challenge in August this year. The legislation requires tobacco products to feature standard olive-coloured plain packaging with large health warnings.

Within hours of that court decision a challenge came from tobacco-producing country Ukraine in the WTO. Ukraine is not the first country that comes to mind when dealing with Australia trade. According to the Australian Department of Foreign Affairs and Trade, trade is “modest” and it favours Australia. In 2009 Australia exported $70m of goods and services to Ukraine while just half that amount went the other way mainly to pay for Ukrainian fertilisers and electrical circuits equipment. Ukraine exports a lot of cigarettes but little or none to Australia.

Nevertheless Ukraine requested a WTO Dispute Settlement Body (DSB) panel to look at the cigarette trademark restriction. After being deferred last month, the DSB agreed to form a panel last week. Now the DSB will determine if the measures “erode the protection of intellectual property rights” and “impose severe restrictions on the use of validly registered trademarks”. Ukraine explained why IP and trademarks trump public health policy. “Governments should pursue legitimate health policies through effective measures without unnecessarily restricting international trade and without nullifying intellectual property rights as guaranteed by international trade and investment rules,” they said. In arguing international trade and property rights should be a factor in health policy, Ukraine said the measures were “clearly more restrictive than necessary to achieve the stated objectives” and  an “unnecessary obstacle to trade”.

With so little trade at stake, it seems an absurd argument but as ABC Lateline discovered, Ukraine’s tobacco industry is especially powerful. After the collapse of the Soviet Union, production soared through conglomerates like Japan Tobacco International (JTI) and Philip Morris peaking at more than 130 billion cigarettes four years ago. Unsurprisingly JTI supports the challenge to Australia. “Put simply, if this measure is passed, Australia will be saying to the rest of the world, ‘we’re not open for business’,” JTI said. Ukraine challenges two key Australian measures, the Tobacco Plain Packaging Act 2011 and its implementing Tobacco Plain Packaging Regulations 2011. Its case is that these Acts are inconsistent with several articles of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, some of the Technical Barriers to Trade (TBT) agreement and one of the 1994 GATT agreement.

Australia was furious with the interference. It said Ukraine had high death rates from tobacco and its actions were at odds with its own policies to comply with the WHO Framework Convention on Tobacco Control. Australia defended the tobacco plain packaging as a “sound, well-considered measure designed to achieve a legitimate objective — the protection of public health”. Australia said the WTO recognised public heath as a fundamental right of its members and the measure was non-discriminatory and not unnecessarily restrictive.

Unlike Ukraine, Uruguay understood Australian aims. Its WTO reps said Uruguay “could not remain silent in this fight against the most serious pandemic confronting humanity”. Uruguay said the Multilateral Trading System should not force members to allow a product that kills its citizens in large numbers “to be sold wrapped as candy to attract new victims.” New Zealand said that it is also considering plain packaging measures and Norway said that countries are under obligation to adopt measures to protect public health.

But other countries such as Zimbabwe, Honduras, Dominican Republic, Nicaragua and Indonesia have backed Ukraine. Zimbabwe relies on tobacco taxes and has not forgiven Australia for its anti-Mugabe stance. It said 200,000 farmers and their families in the country depend on tobacco. How many Australian lives should die for these farmers, they did not say. Central American nations Honduras and Nicaragua supported the Ukraine too. Honduras said that the WHO Framework Convention is” indicative and non-binding” while Nicaragua said tobacco was one of their most important exports.

Big Tobacco has been careful to cover their tracks but no-one is in any doubt who is behind the charade. Fairfax economic correspondent Peter Martin said a Philip Morris International briefing note for the US trade representative in the Trans-Pacific Partnership wants an investor-state dispute settlement mechanism, “including the right for investors to submit disputes to independent international tribunals.” Martin said the Howard Government FTA with the US resisted this notion but an Abbott Government might be more pliable.

October 3, 2012 at 1:55 am Leave a comment

Dear Minister (Redacted): Assange and FOI

On Thursday, the Australian Department of Foreign Affairs and Trade published their answer to a Fairfax two-fold Freedom of Information request on Julian Assange. The first part was for briefings to Foreign Minister Bob Carr about Wikileaks, Assange and Bradley Manning. The second was cable traffic (the kind made freely available by Wikileaks) between the embassy in Washington and the department on Wikileaks, Assange and Manning in the months February to April this year. The aim of the FOI was not to release Assange but to embarrass the government by proving Bob Carr a liar. Fairfax’s gotcha today was DFAT’s long-held concern Assange would be extradited to the US was “at odds with Carr’s repeated dismissal of such a prospect.” More importanly however, DFAT’s heavily redacted response  gives much insight into Australian concerns about Assange.

 
The response started with a letter addressed to Carr on March 2. The letter was written by the department’s secretary Dennis Richardson who was also ambassador to the US for four years to 2009.  While this was before the period of Assange’s international infamy, Richardson presumably had sage advice of Carr on how to deal with the dilemma. We don’t get to see much of it. “Dear Minister”, the advice began, followed by five pages all marked “redacted”.  Some tantalising notes were left on the last page. Consider, Stephenson wrote to Carr in note s22.1(a)(ii), on any given day, the department is dealing with around 1500 consular cases. The appendix s22.1(a)(ii) also deals with the generalities of workload and said consular work was increasingly complex due to the travel behaviour of Australians and the number of cases raised to the media which require ministerial involvement. We don’t know where this was leading as the next page was redacted.
There followed a suggested response to possible questions on Assange lawyer Jennifer Robinson whose name was included on a Heathrow “inhibited travel” list.  This was to confirm events but to deny any Australian involvement or British restrictions on her travel. The problem was caused by “management of Ms Robinson’s check-in” and “inadvertent comments by airport security and other staff”. They said check-in staff eventually cleared Robinson to travel and she boarded the flight as planned.  The talking point ended “I hope this will put all the conspiracy theories to rest.”
The next page is redacted. The briefing sheet moved onto the possible question whether the Government should do more to stop him from being extradited to Sweden.  A month prior to becoming Foreign Minister, Carr used his own blog to slam the role of judges as prosecutors in the Swedish legal system as “an outrage by Australian standards”.  But whatever Carr’s opinions as a blogger, as a representative of the Australian Government he had to express “confidence in the integrity of judicial processes of Sweden”.
The likely US indictment should only be discussed “if raised”.  While the US is investigating Wikileaks there was no announcement of any action against Assange and the US has not advised Australia of any such action though “the details of our conversations are confidential”.  Australia also refuses to comment on the leaked emails from Stratfor saying there was a sealed indictment.  Carr should not talk about the “temporary surrender” extradition mechanism nor the likelihood of Australia extraditing him to the US if he returned here.
The briefing said Assange was welcome home “once international orders preventing his travel have been lifted”. Any extradition from here was a matter for the Attorney-General though Assange could fight such an order in Australian courts.  There was also an ambiguous avoiding agreeing with to question of Assange’s eligibility to run as an Australian Senator as “suggested on Twitter”.  It was Wikileaks’ own suggestion and while the response was to be handballed to the A-G, it was Senator Carr’s own opinion that “Assange has not been charged with an offence in Sweden or elsewhere”.
There follows background on the legal proceedings. British police issued Assange with a European Arrest Warrant in December 2010 which a court found valid two months later. Assange appealed to the High Court which upheld the decision in November 2011. However they allowed an appeal to the Supreme Court on the legal matter of whether a prosecutor was a “judicial authority” who could issue an EAW under UK law. After hearings in February, the Supreme Court has reserved its opinion. If the appeal is successful, Assange is free to walk. If it is unsuccessful, Assange still has one last legal avenue open, the European Court of Human Rights.
The Department said they had spoken to Assange twice by phone, twice in person, facilitated a visit by his mother and had attended all legal proceedings. If he ends up in Sweden, he would probably be kept in detention while any trial was pending. As for the US, the Grand Jury was deliberating the Wikileaks cablegate affair in secret. Wikileaks was accused of providing a rainbow table to crack passwords in Manning’s pre-trial. After Wikileaks released the Stratfor email from the US vice president intelligence on Leap Year Day, Australia sought clarification on whether there was a sealed indictment for Assange. The request was denied due to the secrecy arrangements of the Grand Jury.
The secrecy of the Department files on Assange continued with 10 more redacted pages. There followed a cable from Washington marked “routine, information only”. The cable provided a summary of the Manning case which described in great detail the links to Assange and Wikileaks. These included file-sharing, contact details and on-line chat. Though not explicitly stated in the cable, it was clear prosecutors were building a case against Assange.
This possibility was raised by another similarly undated “routine” cable which said the US has been investigating Assange for more than 12 months. An unconfirmed grand jury was empanelled in Virginia in 2010 but this has been a Kafkaesque black hole for information with no one involved allowed to talk about it and the US refusing to even confirm its existence.  The cable also quotes commentary which suggests a successful US prosecution of Assange would be “challenging and complicated”.  Possible charges could include accessing computers without authorisation, theft of US property, disclosing prohibited material or criminal conspiracy to “defraud the US”.  Any prosecution would not tackle First Amendment rights though as a non-American he may not be covered.
A few more redacted pages occurred before we see some more routine cables. They quoted a Wikileaks press release denouncing UNESCO for banning Wikileaks personnel from a conference about Wikileaks. They pointed out the conference was organised by “Washington insiders, cold war ideological allies (such as Freedom House and the disgraced IAPA) and U.S. mainstream media groups.” When media asked US State Department, their spokeswoman Victoria Nuland said given US’s state of “suspended animation” in UNESCO, she was “not sure we’re going to have much to say about it.
Another cable gave an update on the Manning arraignment. With the complexity of the case including 40,000 documents containing 400,000 pages, it would mean an August start date. This would mean Manning had been detained for 800 days. It reported a voice from the gallery shouting “Judge, isn’t a soldier required to report a war crime?” it also reported the president of the centre for constitutional rights Michael Ratner’s comment that prosecutors were “bludgeoning Manning to accept a plea where he would then implicate Assange”.
Another cable discussed the leaked Stratfor emails. On 27 February Wikileaks began publishing the Global Intelligence Files based on five million emails from Stratfor which provides subscription-based analysis of geo-political issues. It was a private sector Cablegate which Wikileaks publicised with newspaper partners. The cable did not mention the “sealed indictment” did say Australia was mentioned twice. The first an East Asia Monitor Guidance talked about Australia’s submarine crisis and the second from a “well connected former Senator” on Chinese mining interests.
A cable followed that explicitly mentioned the Stratfor “sealed indictment” email. The email’s author Fred Burton was an ex-deputy chief of US counter-terrorism with “close ties” to the intelligence and government network. The email was not official confirmation and the cable author was at pains to suggest Burton might be mistaken due to a draft indictment “commonly used by prosecutors to ‘game out’ possible charges.” Either way the silence of the Grand Jury made everything just speculation.
There was a long explanation why Grand Juries operate in secrecy. It was imported from English law, it protected witnesses, it would lessen the risk someone indicted would flee, and lastly it would prevent someone tried but exonerated from “being held up to public ridicule”. While Assange might have coped with the indignity, it is also designed to prevent “satellite litigation in advance of judgement”.
More cables discussed new allegations in the Manning case. Firstly, that he provided material assistance to the enemy, Al Qaeda in the Arabian Peninsula (AQAP). It discussed in detail the legal arguments and the media commentary with many saying the case was weak and questioned the benefits to AQAP.  Another cable followed that talked about the “rainbow table” allegation.
Another cable discussed the UN Special Rapporteur on Torture’s report to the UN on Manning (Manning data starts page 74). Juan Mendez said Manning’s detention was punitive but he did not accept monitored access to the prisoner. It had a letter from the Department of Defense to Mendez saying they were satisfied with the detention and had placed him on death watch.
The last significant cable was about Wikileaks’ request for the US to publicise details of Manning’s court martial. The Center for Constitutional Rights Michael Ratner said the public had First Amendment and common law rights to access to criminal trials. Ratner quoted Circuit Judge Damon Keith’s dictum “democracies die behind closed doors”. He noted Mendez’s objections and said the public had a “compelling interest” in the Manning case. Particularly Assange had a “unique and obvious interest” and “it appears” federal prosecutors had a sealed indictment against him.
The last cable in the document Jennifer Robinson’s flight difficulty was completely redacted. By my counting 39 pages out of 125 were redacted showing Assange has been a major topic of discussion and concern for DFAT. Yet there is much revealing about what is left in.  Australia almost certainly knows about the sealed indictment but is content to hide behind legal niceties from confirming it.  This was certainly the take of today’s Fairfax report on the material. The Department as ever played a straight bat. Fairfax concluded with DFAT’s non-response. “A spokesperson for Senator Carr said yesterday Assange’s circumstances remained a matter for the UK, Ecuador and Sweden, with Australia’s role limited to that of a consular observer.” Carr hopes the convenience of consular observation will keep Australia off the hook as this high-stakes game heads towards a spectacular stand-off.

August 19, 2012 at 12:12 am Leave a comment

Dark night rises

It was impossible not to think of the Denver shootings as I attended the new Batman movie at the local cinema tonight. This latest random mass murder could have been scripted in the film itself, though it would have been the work of a cardboard-evil mastermind rather than just an unhinged student. While I’m a fan of the work of director Christopher Nolan, this latest effort was turgid twaddle. The plot was so predictable I left after an hour of tedious violence, with the hero in a bit of pickle but assured that the good guys would “win” in the end.
  (Photo: Barry Gutierrez/AP)
I came away thinking it was folly to believe there is no connection between the film and the murders.  Guns and the power they confer are at the heart of the Batman movies – as they are at the heart of most Hollywood blockbusters. Guns are the ultimate deus ex machina plot device. Whoever is holding one, calls the shots. The drama moves towards the pivot where either the tables are turned or someone is shot. In the Dark Knight Rises, guns were everywhere and only “superhero” powers could overcome them. When the real murderer went berserk in the cinema, many in the dark assumed the noise was from the film and paid no attention.  James Holmes called himself The Joker for the stock Batman villain. He painted his hair red and used tear gas before opening fire.  There was no superhero to stop him.
The film producers’ coy reaction showed they are part of the problem. Warner Bros said they took “the unprecedented step” of delaying revealing “eagerly awaited weekend box office figures for  Dark Knight out of respect for the victims and their families.”  How the box office news would have affected grieving families is beyond immediate comprehension, though there was no sign any of the record takings would be used to compensate victims or be put to a campaign against weapons.
America’s “foremost defender of Second Amendment rights”, the National Rifle Association were as quick as I was to blame the culture.  The problem was caused, they said, by “violent imaginary movies”, many of them like Batman having, perish the thought, “absolutely no patriotic value”.  As NRA’s Wayne Lapierre deadpanned when wheeled out to defend their position, “Guns don’t kill -Batman kills.  Had someone in the audience been armed, this tragedy could have been averted.”  Multiplexes, were according to Lapierre, death traps.  Lapierre have preferred a good old fashioned saloon shoot out where everyone could have taken a pop at the dark knight.
Lapierre is right on the point of the violent movies, though muddled about multiplexes and patriotism.  The culture promotes death and violence, as do the movies of many other countries.  But there is one big difference about America compared to nearly every other first world country. There, guns and weapons are as easy to get as movie tickets and popcorn.  The major reason the unhinged Holmes could act out his fantasy was because he was easily able to accumulate a formidable collection of weapons and 6,000 rounds of ammunition.  None of the journalists baying at Lapierre for answers picked him up on his lie: Guns do kill and the tragedy would have been averted had no one  in the audience been armed.
As the New York Daily News said, Holmes did not act alone. Lapierre was at his side as were Obama and Romney cowed into quietness over gun control for fear of unleashing NRA’s mighty political wrath.  “(Also) Standing at Holmes’ side as he murdered 12 and wounded 59, were the millions of zealots who would sooner see blood flow and lives end than have to check a box on a gun registration form,” the Daily News said. It wasn’t just about the occasional newsworthy massacre but the “day-to-to-day mayhem of street-crime shootings, responsible for more deaths than all the mass carnage combined, (that only) makes it to the police blotter, the courts, the newspapers, the emergency rooms and the cemeteries.”
The Daily Beast’s Adam Winkler said mass shootings don’t lead to gun control. Colorado has some of the weakest laws in the land despite the Columbine High School massacre 13 years ago.  Winkler said the radicalisation of the NRA in the 1970s stalled American gun reform. He quotes Bill Clinton as saying the Brady Bill (named for Reagan aide shot in the 1981 assassination attempt) cost the Democrats the control of the House of Reps in 1994 and neither party has mounted any gun control since, despite America having five murders for every 100,000 people.
The NRA vigorously defends its stance at every opportunity against every perceived threat to its clout. This week they attacked Obama signing a UN Arms Treaties because they might “trample our Constitutional right to bear arms.”  The 18th century need for a well-regulated militia remains a holy cow despite bearing arms now sounding as ridiculous as arming bears.  America deserves a referendum on the “right” but even if it happened, the majority of Batman watchers across the land would probably vote against change. Violence is endemic in the culture. Unless one of the dead in Colorado had a well-connected senior operative in the Republican Party for a relative, this latest massacre won’t change anything after all the hand-wringing is completed. Superheroes are as thin on the ground in Washington as they are in Aurora.

July 22, 2012 at 12:00 am Leave a comment

Gunggari People get native title

It was a joyous day in Mitchell today. The Gunggari people, traditional owners of the land south and west of town celebrated a native victory yesterday with a march down the main street. “Who are we?” they chanted. “GUNGGARI” was the response. Loud and proud, they were celebrating the first native title determination on mainland Southern Queensland.

 

The marchers were happy a day after the Federal Court of Australia came all the way to Mitchell Shire Hall  to make a consent determination. Justice John Reeves announced the decision immediately shaking hands with Gunggari elder Wayne Saunders as many people cheered and wept. The determination recognises native title rights and interests over 13,600 sq km of land and waters in central southern Queensland. The area is broken up into parcels, the two biggest of which are in the middle of a triangle between Mitchell (east) Charleville (west) and Bollon (south).

 

In these areas, the Gunggari People negotiated IndigenousLand Use Arrangements (ILUA) with three local councils (Maranoa, Balonne and Murweh) ,  electricity supplier Ergon, telecommunications provider Telstra and five pastoral properties. Once the ILUAs are formalised, the Gunggari Native Title Aboriginal Corporation will be the prescribed body corporate to manage the native title rights. Their rights are non-exclusive but allow Gunggari people access to, travel, camp, hunt, teach, light fires and use water in the areas affected. They can also hold religious ceremonies and spiritual activities on the land.

 

The rights are a long time coming. Queensland South Native Title Services principal legal officer Tim Wishart handed up the list of documents to Justice Reeves on which the claim was based. Wishart made  powerful speech documenting the history of the Gunggari “from time beyond memory”. Wishart said the Gunggari land ran west from the Maranoa River and included the headwaters of the Nebine Creek, Mungallala Creek, Wallam Creek and Neabul Creek which together feed into the greater Murray-Darling basin.  They fought to protect those lands “probably before English developed as a language,” Wishart said.

 

They were uninclined to let the European invaders have free run of the place after Sir Thomas Mitchell first explored the area in 1840.  In 1855 an exasperated Crown Land Commissioner Wiseman wrote “No tribe will allow of the peaceable occupation of their country,” The whites fought back and with superior weaponry killed at least 75 Aboriginals along the Maranoa River up to 1862.  In 1880, George Thorn (who served as Queensland premier two years earlier) boasted the inland Queensland Aboriginals were “pretty well shot down and got rid of”.

 

Thorn was wrong. The Gunggari and other tribes hung on tenaciously even after losing the war to the colonials.  Monitored by the border and native police, They were tolerated as joint owners of the land until the twentieth century when the patriarchal attitudes of the new Commonwealth brought about the Aboriginal Protection and Restriction of Sale of Opium Acts 1901Under this act the camps that existed across the Maranoa were dismantled and hundreds of people were moved east and north into alien lands at government reserves and missions at Taroom, Purga, Barambah/Cherbourg, Palm Island and Woorabinda.

 

Most Gunggari ended up at Taroom settlement established in 1911. They stayed there until 1927 when the site was abandoned for a dam on the Dawson River.  Though the dam never went ahead, they were marched north to a site near Rockhampton called Woorabinda. Here they were among 17 different language groups under the control of the Chief Protector of Aboriginals, an Orwellian title who was supposed to “protect them from acts of cruelty, oppression and injustice.” Instead they turned a blind eye at best, or ran at worst, schemes to rob Aboriginals of what little they had. 

 

The few Gunggari that remained behind on country didn’t have it easy either. They mostly gravitated to Mitchell town and were housed on the Yumba (“camp”)  on the eastern edge of town near the Maranoa River. At the Yumba, Gunggari elders spoke their language but repressive white attitudes discouraged them from passing on their knowledge to the next generation.  They did pass on the cultural laws and customs and hunting traditions. Yumbas were often shantytowns and many towns such as Mitchell and Surat demolished theirs in the 1960s. The people moved into town and started meeting the whites in school when previously they would only ever meet on the rugby league or netball field.  

 

The 1967 referendum, the Keating Redfern speech and Mabo and Wik decisions slowly changed attitudes both of the white and black communities. Robert Munns for the Gunggari People first filed a native title application in March 1996 and followed it through despite no legal representation for 11 years. The application was modified in 1998 to reduce the covered areas and the application was split into two parts in 2001.  In 2007 Queensland South Native Title Services became the legal representative  and they registered an ILUA with the Queensland Government in 2008 for the first part which saw parcels of land change hands in the Dunkeld area south of Mitchell.  Friday’s decision was for the second half.  Applicant Munns did not live to see it. He died in July 2009 and five others continued the application in their name. 

 

In December 2010, the State of Queensland began substantive mediation. The applicant and respondents submitted their material to the Federal Court who announced their decision on Friday.  As well as the many Gunggari who celebrated in Mitchell, others celebrated from afar such as Queensland State of Origin star Johnathan Thurston and Opera Australia baritone Don Bemrose. “I am very proud to say I am a member of the Gunggari community,” Thurston said.

 

“It is important that our history with this land, and our customs, have been observed in this way and I congratulate everyone who has fought for this recognition over the past 17 years – almost as long as I’ve been playing rugby league.” Bemrose, the first Aboriginal member of Opera Australia, said he was always proud and honoured to represent the Gunggari. “This moment is acknowledgement of our people’s continued bond with the Maranoa and the persistence, dedication and strength of a few to do all possible to again connect our land to all Gunggari past, present and future is amazing,” he said. As Wishart concluded in Court on Friday, the determination has confirmed what the Gunggari already knew: the land was theirs.

June 24, 2012 at 1:57 am 1 comment

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