Posts tagged ‘law’
I was coming from Roma St Station towards Kurilpa Bridge to the Queensland State Library yesterday thinking about my aboriginal studies with a final assignment due on Monday. I was trying to figure out how crucial dignity was to three Indigenous ambassadors from different times, Bennelong, Bussamarai and Noel Pearson. Suddenly, out of nowhere appeared two men with an Aboriginal flag.
The timing seemed extraordinary and they were heading the same way as me. I followed them to the Commonwealth law courts in front of Kurilpa bridge. Some Indigenous people were putting up signs and waiting outside the court, while others still got ready to do a traditional dance. There were television and other media present. There was the promise of a peaceful protest and street theatre. The State Library could wait, I thought, this was a media event and I was media. This was also Indigenous people acting out their own dignity. This was important, to them, and to me.
Across the forecourt, young men put up banners while others handed out kits to waiting media. I asked for a kit and read their story. The High Court case was about sand mining rights on “Straddie”. Straddie is North Stradbroke Island, or Minjerribah, to its Indigenous people. They were here to appeal to Canberra to stop Brisbane from making laws about their island without their permission. It is also political. Labor’s law in 2o11 permits mining to 2019 – with Indigenous consent – but the LNP introduced a new law in 2013 to push the end of mining to 2035 and also increase its size. But federal law says they should have consulted with the traditional owners and this is something the Queensland government didn’t do.
The constitution says that when State and Federal law clash, the latter should prevail. But not for the moment, and the unconsulted Straddie Aboriginal people had to take it to the highest court in the land. It was blatant lack of regard, something my reading of the history told me happened time and time again across the country since 1788. Straddie is close to Brisbane but bridgeless, much to the delight of most of its residents black and white plus most of the visitors that make the ferry. Visitors are not new. Straddie has been home to humans for over 20,000 years.
We don’t know their original name but their descendants became the Quandamooka people. The Quandamooka maintain a presence on the island to this day. Straddie was annexed by Cook in 1770 and again by Phillip in 1788 as part of New South Wales but the islanders remained blissfully ignorant of British rule for another 36 years. Reality struck when another penal colony was needed to punish the ones already here that needed further punishing. Moreton Bay (Brisbane) fit the bill.
The British felt no permission was necessary to establish this colony, enforced at the butt of a carbine. They first landed on Straddie, the same year – 1824 – as they landed in Brisbane. At a place the islanders called Pulan, they built a pilot station overlooking the strategic exit to the ocean. Whites later renamed it to Amity Point. By then Moreton Bay was opened to free labour and from 1859, Straddie would by ruled by Brisbane, not London or Sydney. An early church mission named Myora failed to win converts. And though Australia was formed in 1901, here as elsewhere, the Quandamooka people were not counted and at the mercy of their colonial government. The earliest Brisbane rulers were pasturalists who had good financial reason to support “the opening up” of territory for agriculture. Later regimes were heavily paternal, locking up Aborigines in concentration camps across the state where they could be kept under control. Many Stradbroke Islanders were sent to Cherbourg or Woorabinda or Palm Island.
It was Brisbane that decided the first sandmining on Straddie would take place in the 1950s. There was no consultation with Quandamooka or any other local peoples or no profits to them either. Mining came and nothing much changed until two groundbreaking events in 1993. The first was Mabo v Queensland (no 2) where, on the second attempt Mer man Eddie Mabo and his friends proved to the High Court they had customary title to the Murray Islands in Torres Strait. In response later that year Paul Keating pushed through a Native Title Act, a brave move that cost him much political capital (giving things to blacks remains electorally unpopular in Australia). Keating’s Act provided for a national system which would recognise and protect native title, but needed to co-exist with the “land management system”. For Straddie that meant co-existing with sand mining. Mabo had got them a seat at the negotiating table, and also overrode Queensland law.
The Quandamooka people lodged their land claims in two phases between 1995 and 1999. The Native Native Title tribunal registered both claims in 2000 (the second one three months before the first). The claims were slowed up by boundary disputes, needing a 2006 workshop of elders, lawyers and anthropologists to resolve the disputes. In the meantime, the main mining lessees expired in October 2007. Two days after the close date, Lessee Stradbroke Rutile Ltd (owned by Consolidated Rutile) applied for a 21 continuation of lease. In 2009 both companies were gobbled up by Belgian company Sibelco, a “raw material producer” for the world manufacturing market.
In January 2010, the Federal Court asked the National Native Title Tribunal to facilitate negotiations with the State Government, local government and other interested parties to finalise an Indigenous Land Use Agreement (ILUA). Sibelco nominated its subsidiary Unimin to negotiate a separate ILUA with the Quandamooka. In mid 2010 Unamin’s “offer” to the Quandamooka involved the long-term operation of the mines until 2035 and another in 2050 and they also wanted their support in their lease negotiations with the state government.
The Quandamooka came back with a counter offer. They split the ILUA in two, firstly a complex one that would deal with future mining and might take many years to agree on, called “a Future Acts ILUA”, and the secondly a simple one to have greement on the ground once the Federal Court judges on the native title claim. They also refused to be the meat in the sandwich on the leases and advised Unamin/Sibelco to sort it out with the government and come back to them for consent.
In April 2011 the Bligh Labor government passed the North Stradbroke Island Protection and Sustainability Act (NSIPSA Act) which gave effect to key elements of the ILUA between Queensland and the Quandamooka. It approved mining on Straddie until the end of 2019 at which time full native title rights would return to the Quandamooka.
The ILUA was signed almost three years ago to the day, 15 June 2011. In what was proving a historic year, the Federal Court handed down its Native Title judgment in July 2011. For the first time, a court had recognised that Quandamooka law and customs had survived colonisation. Judge Dowsett said the Quandamooka were a “pre-sovereign society” who had maintained connections with Straddie and the adjoining sea (though not with adjoining islands or the mainland). He also noted Sibelco, Telstra and other big stakeholders were adopting the state’s submissions. The National Native Tribunal ratified the claim on 11/11/11 making it the law of the land.
But Judge Dowsett was too sanguine about Sibelco’s intentions. With a state election coming up in 2012 and a likely change of government they did as all good mining companies do and ran a political scare campaign to get their original position back on the table. They focussed their campaign in the crucial seat of Ashgrove where Campbell Newman was running to become premier from outside parliament. Labor environment minister Kate Jones held the seat but it was Newman’s scalp they wanted. Newman duly proposed to extend sand mining to 2035 if the LNP took power. During the campaign Newman told the ABC Labor had acted in “a unilateral and capricious way” by bringing forward the end of mining in its 2011 law which was “all about green preferences”. Neither interviewer nor Newman made any mention of the traditional owners and Newman had no contact with the Quandamooka before his announcement.
Sibelco’s PR company Rowland would later win a PR state award for excellence demonstrating “achieving environmental and economic progress in an island community”. Rowland’s other reward was another fat contract after Newman’s landslide election win. Without changing any laws, the new Mining Minister ruled mining would stay to 2035. Still the government had not contacted the Quandamooka. In October 2013 the government brought in the North Stradbroke Island Protection and Sustainability and Another Act Amendment Bill 2013. The new NSIPSAAA Bill offered Sibelco security to 2035 with fewer environmental provisions.
When the bill went to the agriculture, resources and environment committee, the Quandamooka could finally respond as the native title holders. The committee report admitted the government had not consulted the Quandamooka on NSIPSAAA, which breached the Queensland Legislative Standards Act 1992. Despite this, the Bill became law in Queensland’s unicameral chamber on 20 November. Without consent, it had changed a range of matters previously agreed with the Quandamooka.
In March this year, the fight-back began. Elders gave their assent for the Quandamooka Yoolooburrabee Aboriginal Corporation to launch a High Court Challenge to Queensland’s 2013 Straddie law. They say the law overturning the 2011 law contravenes Keating’s Native Title Act 1993. The section of constitutional law is S109 which says if a state law is inconsistent with a Commonwealth law the latter shall prevail and the former “shall, to the extent of the inconsistency, be invalid”. The legal battle will surely be on the extent of the consistency between the two acts.
Whatever happens, the dignified Aboriginal elders outside the High Court yesterday won the moral battle. Their dancers performed a smoking ceremony where they blessed their own people and all other by-standers, including the media filming the ceremony. “It your job,” a Quandamooka dancer told them – us, me – “to tell the world”. These people are proving that dignity very much matters.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
Katterbill to index military retirement benefits the same way as Australian age and service pensions, currently based on a higher-end consumer price index.
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.
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.
Katterbill to stop the foreign takeover of Cubbie cotton station near Dirranbandi, Qld.
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.
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.
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.
This Katterbill imposes penalties on those who don’t label imported food properly.
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.
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.
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.
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.
Andrew Wilkie’s bill calls for the end to live animal export by 2017 and in the interim ensure “satisfactory treatment” before slaughter.
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.
Andrew Wilkie’s bill to amend marine regulations to ensure Australian standards are followed despite the rundown of Australia’s merchant fleet.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Joe Ludwig’s bill amends three acts to form the new Australian Grape and Wine Authority (see 17).
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.
Another Ludwig bill changing three acts to form the new Australian Grape and Wine Authority (see 17 and 39).
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.
Wilkie bill and companion to number 44 with consequential amendments to four acts.
Wilkie’s bill provides a comprehensive definition of public interest disclosure and provides protections to public officials to make such disclosures.
Katterbill to reduce market share to 20% by enforced divestiture over six years and establish a Commissioner for Food Retailing.
Katterbill to regulate renewable fuel and mandate 5% ethanol by 2017 and 10% by 2020.
Katterbill to establish an Australian Reconstruction and Development Board to fix financial arrangements of stressed Australian agriculture businesses and associated industries.
Ludwig’s third R&D bill affecting 8 acts. See 40 and 42.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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?”
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.