Mabo and 25 years of Native Title

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Bryan Keon-Cohen (suited) with the Mabo case plaintiffs in 1989.

With Native Title changes in the news again, it seems timely to look back on the 25th anniversary of the Mabo High Court case that started it all. In 1992 a High Court case was heard for a group of remote Torres Strait Islanders that would have profound impact on land law in Australia, indeed in all settler nations.  The case, known as Mabo for its most well-known plaintiff, built on a rich judicial heritage to establish native title in Australia. The story that follows is a greatly condensed summary of Bryan Keon-Cohen’s A Mabo Memoir” with the author being one of the lawyers for Mabo and his fellow plaintiffs in a case that lasted 10 years.

The landmark decisions of US Chief Justice John Marshall in the 1820s and 1830s established the modern doctrines followed in New Zealand and Canada that recognise native title but no case in Australia succeeded until Mabo. Mabo was built on the Gove case of 1971 which was a legal failure but a pioneering case never appealed to the High Court. The 1836 New South Wales Supreme Court proposition that no law existed in the colony before 1788 was upheld by the Privy Council in 1889 (a decision Justice Lionel Murphy called a “convenient falsehood” in 1979) and was never debated or challenged in the constitutional debates of the 1890s.

In the Gove case (Milirrpum v Nabalco) the Yolgnu people of Arnhem Land argued the common law recognised pre-existing traditional rights to land founded on prior occupation, customs and traditions, enforceable even after British colonisation. Justice Blackburn decided no such doctrine was known to Australian law “for want of authority to support it” though he admitted customary laws were a recognisable system of law. The case did eventually lead to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which recognised traditional rights to land in the Territory.

However in Queensland the Bjelke-Petersen government went in the opposite direction proposing to remove the minimal protection of Aboriginals and Islanders to reside on lands gazetted as “reserves” under the Land Act 1910 (Qld) and it was the Torres Strait Islanders who led the charge against that move.

About four to five thousand people live in the Torres with less than 500 on the western island of Mer (renamed Murray Island by the white newcomers). Rich volcanic soil allowed Meriam residents to do gardening with associated customs and traditions, which became the core of the Mabo case. Cultivation of bananas and yams was associated with a local cult called “Bomai-Malo” which featured prominently in evidence.

Mer was not included in Cook’s 1770 claim of possession of eastern Australia. Christianity arrived with the London Missionary Society one hundred years later and over 30 years their violent evangelical Christianity profoundly impacted Meriam practices. The LMS arrival “The Coming of the Light” is still celebrated every July 1, a fact Queensland used to argue Meriam customs had vanished along with traditional rights to land.

Between 1872 and 1879 the Torres Strait Islands were annexed to Queensland through instruments issued by Whitehall and Brisbane, administered through Thursday Island. This late arrival meant Islanders were subject to fewer destructive influences than the mainland though the Queensland system soon affected all aspects of Islanders’ life. The first Government Resident John Douglas was appointed in 1886 and when he died in 1904 control passed to the Aboriginal Chief Protector whose powers were established under the 1897 Protection Act making islanders subject to the same extensive and restrictive controls as those on mainland Aboriginal reserves.

After a three-year strike on Mer in the 1930s was ended by the arrest of island ringleaders a new Torres Strait Islanders Act 1939 vested some local control in councils but maintained the repression of prior laws and Queensland departmental control. By-laws established offenses such as fornication, adultery, “message-carrying” and domestic squabbling, with fines, imprisonment and banishment from the island for “offenders”. The Department established “birth-to-death” cards which contained an ongoing record of most aspects of person’s life, cards which were used to great effect to attack Eddie Mabo in the court case.

In 1980-81 the Bjelke-Petersen government decided to repeal the 1939 act, revoke island reserves and introduce Deeds of Grant in Trust (DOGITs) in their place. This was Joh’s attempt to head off land rights, but this decision helped trigger the Mabo case. 

Eddie Mabo was born on Mer on 29 June 1936 but his mother died just five days later. Mabo claimed he was eventually adopted by her brother Bennie Mabo. When Bennie and his wife died without producing offspring of their own, Mabo claimed to inherit his land under Meriam custom and tradition, a claim hotly contested by his cousin and adoptive sister and eventually denied at the trial. Mabo was educated in Meriam lore, traditional land management, Christianity and traditional beliefs. In 1956 Mabo pleaded guilty to an offence against the community by-laws which contributed to his alienation from Meriam leaders and he left the island first to Thursday Island and then to the mainland. In 1959 then a 23-year-old labourer at Halifax he married 16-year-old Bonita, a descendant of Kanakas from Vanuatu.

Mabo became involved with Indigenous organisations in Townsville and established a Black Community School there in 1971. Working as a gardener at James Cook University he began researching his background and discovered that under Australian law he did not own his traditional land at Mer.

As the Bjelke-Petersen rammed through its DOGIT legislation it was opposed by Aboriginal and Islander groups who contested the autonomy of trustees to lease DOGIT areas to outsiders. Eddie Mabo and Noel Loos organised a lands rights conference in Townsville in 1981 where Mabo spoke about traditional land ownership on Mer. Reverend Dave Passi also spoke of his ownership of Meriam land which he said was threatened by the DOGIT system. The conference discussed a possible High Court challenge which Barbara Hocking of the Melbourne Bar said might prompt political action even if unsuccessful. A group of Mer delegates decided they would take a Gove-type case to the High Court.  This was purely about land rights and not an issue of independence or sovereignty. Other court cases had found sovereignty not justiciable in an Australian court. 

In 1982 five plaintiffs representing the Meriam group (Mabo, his elderly aunt Celuia Mapo Salee, brothers Dave and Sam Passi and Councillor James Rice) handed a 32-page statement of claim to the High Court based on relevant facts, law and the detailed testimony about their gardening and fishing activities with proceedings served against Queensland and the Commonwealth. A fact-finding trip to Mer uncovered records of a 1913 sale of a block of land by an Islander to Queenslander for use as “Jail House, Court House and Recreation Reserve” and also a Murray Island Community Council and Court which operated from the 1890s.

In August 1982 Queensland issued a summons to strike out the claim as not worthy of consideration accompanied by an affidavit sworn by Patrick Killoran, Director of Queensland’s Aboriginal Affairs department. Killoran claimed the “former modes of life” of Meriam people was “fundamentally and irrevocably modified by outsiders”. The plaintiffs counter-applied to have the case heard immediately referred to the full High Court for hearing. Neither application succeeded in court and the parties compromised on an agreed statement of facts and questions of law to be presented to a single High Court judge. After two years however, Queensland agreed to none of the facts making a complex and lengthy trial inevitable.

A 1984 directions hearing achieved little other than a Queensland request for the plaintiffs to amend the statement of claim, an attempt to bury them in paperwork. But with Queensland’s legal options dwindling the Bjelke-Petersen government decided to pass legislation to stop it dead. Claiming the case challenged Queensland’s annexation of Mer (it didn’t), the government passed the Queensland Coast Islands Declaratory Bill 1985 to vest the island in the Crown and free it from “any right, interest or claim that the occupants of the land may have claimed to have existed prior to annexation”. Once passed, Queensland’s lawyers amended their case with new material which relied on the new act as a complete defence to the action.

In response the plaintiffs issued a “demurrer”proceeding designed to have the High Court declare the Act unconstitutional. Their grounds were that the 1985 parliament could not retrospectively change the meaning of the 1879 law, Queensland did not have the power to pass laws to extinguish traditional land rights, and it did not address the Commonwealth-controlled “reefs and seas”. However in the end they succeeded only because the law was inconsistent with the Racial Discrimination Act 1975. Remaining under High Court jurisdiction, the matter was referred to the Queensland Supreme Court in 1986 to establish findings of fact.

The first phase of the trial under Justice Martin Moynihan came in late 1986 with the plaintiffs suffering blows of illness of judge and lawyers, and the withdrawal of the Passi brothers from the case (with Mabo’s aunt now dead that left just him and Rice as plaintiffs). Queensland’s objections to Mabo’s testimony as hearsay  were so frequent it broke the flow of evidence and the judge decided defer all rulings on admissibility until the end of the evidence. Moynihan ruled Mabo’s witness statement inadmissible meaning his lawyers had to rely solely on oral evidence. Mabo did describe the legend of octopus-shaped Malo who designated the eight tribes into eight distinct parts of the island with inheritance passing down the eldest male line.

The court adjourned until early 1987 but was abandoned when the plaintiffs convinced Toohey J to hear the demurrer in the High Court in what would become known as Mabo (No 1).  There was another directions hearing which left the matter of evidence in Moynihan’s hands but established that some traditional evidence was valid. Ten days later Moynihan decided to “let it all in and rule at the end”, in other words let High Court decide on admissibility, a decision the plaintiffs supported and Queensland did not appeal.

Mabo (No 1) was served in the High Court in March 1987 with a directions hearing in April. The parties agreed that if the demurrer failed the case would be over but if they did strike down the Declaratory Act the trial must continue. A full High Court was scheduled to hear the demurrer case in 1988. That allowed enough time to study the case history of “terra nullius”. Australian law was based on the Privy Council 1889 case Cooper v Stuart about English law relating to estates and had nothing to do with Indigenous people in colonies. The question did English common law recognise pre-existing traditional land rights when introduced into the Straits in 1879 would be the core question in Mabo (No 2).

Mabo (No 1) was almost undone on Day 1 when J Gerard Brennan admitted his son Jesuit priest Frank Brennan was an adviser to Aboriginal people but the plaintiffs breathed a sigh of relief when he was not asked to disqualify himself. The plaintiffs argued the Queensland Act was inconsistent with Commonwealth laws especially the 1975 Racial Discrimination Act. Queensland argued native title was extinguished in 1879 when, according to Queensland’s Solicitor General, “there was a peaceful annexation of people who were, at the time, thought to be uncivilised and who were thought not to have an organised society with an established system of law.” However the court did not accept Queensland’s assertion it could not be re-examined by re-assessing historical facts.

Queensland’s lawyers told the court “they were instructed” (which was code for “they would rather not say this”) there was no record of any by-law approving the island courts. The plaintiffs replied the court did exist and it made decisions which were signed off by the government. The hearing lasted three days and then there was a nine month delay for the outcome.

The case succeeded 4-3 with Justices Brennan, Deane, Toohey and Gaudron agreeing the Declaratory Act was racially discriminatory. The Mabo (No 1) decision meant the claim could continue though whether it would succeed remained open. It was also an important decision for native title as it meant those interests must be dealt with on an equal footing as all other equivalent property rights. 

Preparation for Mabo (No 2) helped by another development, a successful Indian rights case Guerin, handed down by the Canadian Supreme Court in 1984. However having done little for seven years the Commonwealth now hardened its interest in the case’s offshore claims and threatened another demurrer case about proprietary rights on the high seas. After two and a half years the Brisbane Supreme Court trial resumed in front of Moynihan J in May 1989. Queensland used its detailed and intrusive knowledge of Islander family details to undermine Mabo’s testimony especially about claimed inheritance and adoption. 

Mabo disputed records that showed him returned to his birth father in 1947 however Moynihan J preferred the written record over Mabo’s evidence. Queensland undermined his testimony to be a descendent of traditional leaders or “Aiet” which the state showed was a personal name, a fact that contributed to the judge disbelieving Mabo’s testimony about his own interests. But while Mabo’s personal claim was jeopardised his evidence on the system was untarnished and compelling.  For the plaintiffs’ case it was the recognition of the system upon which rights and interests were founded that was the critical question for the High Court.

On May 22, the court moved from Brisbane to Mer so Mabo could point out the boundary-markers. They arrived in the middle of an industrial dispute with island municipal garbage collectors on strike forcing Mabo and his supporters to cart rubbish away on a Sunday so the judge would not see the mess. On the first day Mabo showed a mound of rocks to the court which he said were boundary markers and the court visited the nearby island of Dawar which had an area of claim of plaintiff James Rice.

The following morning Moynihan J opened court at the community hall calling it an “historic occasion” and he said sitting there helped him understand the evidence about Murray Island, its people and culture. The court heard 11 witnesses and then moved to Thursday Island where another five witnesses were heard. Meriam evidence touched on aspects of customs and traditions of land and sea, ownership and stewardship, and boundaries and Island Court disputes. It also revealed islander opposition to plaintiff claims, especially Mabo’s on account of him leaving the island many years ago. However encouraged by events in Mer, Dave Passi applied to be re-admitted as plaintiff though brother Sam stayed out due to fear of costs. Dave Passi’s readmittance was critical as Moynihan’s Determination would later show, because only his claims had a factual foundation solid enough to proceed to the High Court.

Another significant moment came in July 1989 when the plaintiffs dropped the claim against the “outer seas” outside the jurisdiction of Queensland which dismissed the Commonwealth from the proceedings. Evidence concluded in Brisbane with the testimony of Rice and Passi. Rice was a retired school teacher, an island councillor and an Assembly of God official who supported Mabo’s territorial claim but denied Mabo was an island leader. Queensland claimed Rice was subject to a tenancy agreement but Rice could not recall ever paying anything to anyone. Anglican minister Dave Passi was the final witness. Passi said his ministry was influenced by traditional custom “Malo’s Law” which he said was a “law of preservation of land, soil, trees”. Passi said he could see God sending Malo to the island “to prepare the place for the Coming of the Gospel.” For Passi the ancient Bomai-Malo cult with its laws of Malo and the LMS Coming of the Light in 1871 fused together in one philosophy. His oral testimony of how land was transferred by the Passi clan was the clearest display of traditional landholding arrangements and when asked how he “inherited interests” to his land, he replied “I am a Passi. I am born into it, and I am born into the ownership of the land.” That ownership did not extend to the women. “If my sister wants to use the land, she may use it, but will not own it.” It was patriarchal but it did establish to the court it was a recognisable system of law.

Among the other witnesses in Brisbane was Meriam elder Henry Kabere, a close friend and supporter of Rice and a huge source of traditional knowledge. Kabere described a story his grandmother told him of a gunship that landed with the LMS in 1879, which fitted the narrative of the plaintiffs that the area was colonised by conquest not settlement. Kabere also testified the Island Courts used Malo law in their decision-making, including island adoption of extended families members. Expert witness Dr Jeremy Beckett, who studied on Mer, agreed most social interaction on the island was based on kinship. Dr Beckett also agreed the Malo precepts were a system with “fairly simple principles” but it was “in the majority of cases, effective”. It was also the only thing the LMS did not try to suppress or affect the rules and regulations.

On July 3, the plaintiffs withdrew part of its claim for Eddie Mabo based in the fact they could not prove he was a leader, the same day as Queensland began its defence. Queensland denied the existence of traditional rights to land, and even if they did exist they were extinguished by the extension of sovereignty in 1879. Nor, they said, was Mabo adopted by Benny Mabo and had no right to Benny’s land. Their historical evidence included the infamous exhibit 80, 42 massive bound volumes of archival records and the whole of the Island Courts record, (which suited the plaintiffs but the judge called it “terrifying”.

Queensland’s most significant witness was former DAIA director (1964-1985) Patrick Killoran.  Reportedly close to Bjelke-Petersen, his Department ran as a secretive and defensive government agency exercising almost total control of Indigenous lives in the state. Killoran spoke extensively of the paternalistic administration of island life and tendered the social history cards that governed all aspects of islander lives.  The thrust of his evidence under questioning was to avoid any concessions that might preserve native-title rights using obfuscation and irrelevancies. Killoran dismissed the Island Court as dealing with “minor stuff” and would not conceded it fixed land disputes on traditional island principles. Even where evidence was found of a government land payment for a kindergarten in 1968, Queensland claimed this was an ex-gratia payment to keep Islanders quiet and comfortable. Killoran said it was Crown land and the word “purchase” in the correspondence was merely “intended by my Department to be a convenient shorthand method of referring to those persons’ loss of use of the land concerned.” Killoran also dismissed Mabo’s adoption calling it “shuffling of kiddies” to get the maximum child benefit payment.

On completion of the evidence Moynihan J asked for written submissions on “the crunch issues” – the existence and nature of “the system”. The plaintiffs submitted 150 pages drawing an analogy with the common law system as it evolved over 500 years. “Few of its details are the same… Yet we have no difficulty in dealing with the system as a continuity over such a vast period, and despite such vast changes”. Queensland produced a lengthy document in reply disputing the facts of the case which had to be replied to before the judge produced his own fourth version of each numbered fact in his Determination.

Oral submission then began in September 1989. Queensland argued the island court records showed little about a system with no reference to Malo’s Law. It said Britain did not recognise native custom in the Torres Strait Islanders in 1879 because there was no system in place “to deal with the problems of administration”.

Justice Martin Moynihan’s 497-page Determination of Facts was handed down in Brisbane on November 16, 1990. The key chapter was on Murray Islands Society and Land which the High Court focussed on rather than the individual claims. Moynihan J acknowledged the islanders strong sense of relationship to their islands saying “they have no doubt that the Murray Islands are theirs” which was later relied on by one of the High Court judges. Moynihan noted the knowledge of boundaries and the shame of trespass were cultural attitudes “rooted in the pre-contact past”. He rejected the plaintiff rights to the reefs and reef flats ruling out the tidal zone from the high-water mark. He also rejected Mabo’s claim of adoption and therefore his personal land claim.  However he agreed the plaintiffs’ traditional rights and interest in land founded on Meriam customs and traditions had survived in legally recognisable form.

Neither side appealed the Determination and the case proceeded to the High Court for final appeal. The common law precedent standing against the plaintiffs was a Privy Council decision on 1889 Cooper v Stuart which purported to confirm the legal assumption underpinning colonisation: Australian colonies were settled not conquered by Britain and the doctrine of terra nullius (land belonging to no one) applied. However while terra nullius provided legal and policy context, it was rarely mentioned in court. Mabo was set for a three-day hearing in May 1991 (and took four), a lengthy time for the High Court and an indication of its importance as a test case. The key issue would be what happened to traditional rights on annexation.

The biggest difficulty the plaintiffs had in trial was in determining whether the claims were individual or communal which encouraged Queensland to claim Moynihan J’s findings were inadequate to allow legal argument to proceed. However Queensland had problems too, its argument no ordered system of land tenure survived annexation did not impress the judges. They accepted Moynihan’s Determination that possession did exist under an identifiable system.  Deane J asked Queensland’s team if the Islanders’ status was trespassers after annexation. And after some squirming they admitted Gaudron J’s point “the native population could have lawfully been driven into the sea”. This was not a good look for Queensland which had stressed the state had protected the Islanders on a reserve created for their benefit.

Queensland mentioned the Irish case of Tanistry, where land held under the Tanistry tenure was inherited by the deceased eldest son. The state argued this custom was abolished by the introduction of the English Common Law to Ireland, as were the customs and traditions of Mer in 1879. Queensland also attempted to show that Marshall’s American judgement in Johnson v McIntosh gave the sovereign power free right to terminate right of occupancy.  When challenged by Brennan J this was not an “enabling doctrine” for the common law, Queensland’s solicitor-general Geoff Davies reluctantly agreed that “unfortunately the position seems to have been very much in those days that might was right and that those who controlled the country determined what the rights were”.

Following the hearing Eddie Mabo was diagnosed with cancer and his health declined rapidly. He died in Townsville on January 21, 1992. After his grave was vandalised by unknown offenders his family eventually re-buried him on Mer. His death left just two plaintiffs Dave Passi and James Rice to face the High Court judgement on June 3, 1992. Five judgements were delivered, two joint decisions, two separate decisions by Brennan and Toohey JJ (all supporting the plaintiff) and a dissenting decision by Dawson J. Brennan J’s was regarded as the most comprehensive and influential judgement. The six assenting judges agreed the common law recognised an enforceable traditional property right based on provable customs and traditions – native title – which was not extinguished by British sovereignty in Australia or the introduction of British common law in each of the colonies. However being a subsidiary of the ultimate title of lands vested in the Crown at the time of colonisation, native title could be extinguished or impaired by subsequent Crown acts especially in the granting of fee simple titles or commercial leases to settlers. At a stroke this decision saved the commonwealth, states and grantees from Indigenous claims of invalidity and compensation.

Mason CJ later said the doctrine of terra nullius was not central to the decision nor was there any challenge to British sovereignty. He also denied the court was influenced by writings of Henry Reynolds, especially in his 1987 book The Law of the Land. The central question was whether native title was recognised by the common law at the colonisation of a “settled” country to which the answer was “yes”. He said settlement was appropriate, because “the indigenous inhabitants were regarded as barbarous or unsettled, and without a settled law.” However Brennan, Deane and Gaudron JJ rejected terra nullius as outmoded and unacceptable. Brennan J said it was unjust to characterise pre-colonial Australian inhabitants as “people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.”

It was this judgement that made Mabo so important not just for Torres Strait Islanders but also Australia’s Aboriginal people. Any group who exhibited systems of custom and tradition had rights and interests in their traditional country. Deane and Gaudron JJ reached into Australian colonial history to describe Governor King’s 1804 actions on the Hawkesbury River as the “first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame”.

While the Australian’s editorial (January 26, 1993) applauded the decision as common sense saying “European settlers did not occupy a country free of inhabitants”, others were less measured. Historian Geoffrey Blainey claimed the decision could “turn Australia in two separate nations” while Victorian premier Jeff Kennett said “back yards were at risk” (they weren’t). Most hysterical was Western Mining chairman Hugh Morgan who claimed the High Court pandered to “the guilt industry” and gave substance to the “Bolshevik left for a separate Aboriginal state”.

Historian Bain Attwood argued the sense of national crisis provoked by Mabo arose from the challenge some saw the decision posed to Australia’s sense of self. But its enduring legacy was the Keating government’s legislative response. The Native Title Bill 1993 initially had three elements; native title legislation, an Indigenous land acquisition and management fund, and a “social justice” package which never saw the light of day. The land acquisition fund was operated by the Indigenous Land Corporation and by 2009 had acquired 222 properties in a land area of 5.7 million hectares.

States followed with their own legislation but the Native Title Act was substantially amended by the Howard government’s Ten Point Plan in 1998 following the Wik decision. Deputy prime minister Tim Fischer infamously claimed those changes provided “bucket loads of extinguishment” and indeed validly extinguished native title for thousands of land interests granted by the Crown since 1788. It also restricted the “future act” regime stopping claimants from negotiating terms with miners on claimed land prior to resolution of the claim.

From 1994 to 2010 indigenous groups made 1556 applications for native title covering 13% of Australia’s land mass with 458 of those claims still before the court as of 2010. The real success of the legislation has been agreement-making with 470 Indigenous Land Use Agreements signed off by 2010, using native title for community purposes such as energy facilities, health care centres and gas pipelines. The people of Mer negotiated an ILUA in 2010 to permit the building of a new primary school and associated roads and services.

But the law remains, as Justice Michael Kirby said in 2002,  “an impenetrable jungle of legislation” that was difficult to navigate.  In 2008 Rudd minister Jenny Macklin delivered the Mabo lecture where she highlighted three areas for reform: the complex and slow claims processes, inadequate representation for claimants, and the flow of payments to claimants and native title holders. Political will remains lacking to make these necessary changes happen. It is unlikely current changes before parliament will in any way help the Indigenous cause.

Quandamooka versus Queensland: A tale of law, PR and Stradbroke Island

quandamookaI was coming from Roma St Station towards Kurilpa Bridge to the Queensland State Library yesterday thinking about my Aboriginal studies 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. Indigenous people were putting up signs and waiting outside the court, while others 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, this was a media event and I was media.

This was also Indigenous people acting out their own dignity. 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 Indigenous people. They were here to appeal to Canberra to stop Brisbane from making laws about their island without their permission. Labor’s law enacted in 2011 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. Federal law says they should have consulted with the traditional owners, something the Queensland government didn’t do. The constitution says that when State and Federal law clash, the latter prevails. But the unconsulted Straddie Aboriginal people had to take it to the highest court in the land. It was blatant lack of regard, something that has happened 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. 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. Straddie was annexed by Cook in 1770 and again by Phillip in 1788 as part of New South Wales but the islanders remained ignorant of British rule for another 36 years. When another penal colony was needed for those that needed further punishing, Moreton Bay 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 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. A church mission named Myora failed to win converts. The earliest Brisbane rulers were pastoralists who had 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, Woorabinda or Palm Island.

The first sandmining on Straddie took place in the 1950s. There was no consultation with Quandamooka and no profits to them either. Nothing much changed until two groundbreaking events in 1993. The first was Mabo v Queensland (no 2) where Mer man Eddie Mabo and his friends proved to the High Court they had customary title to the Murray Islands in the Torres Strait. 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 to recognise and protect native title, which would 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 National Native Title tribunal registered both claims in 2000 but the claims were slowed by boundary disputes, needing a 2006 workshop of elders, lawyers and anthropologists to resolve. The main mining lessees expired in October 2007 and two days later Lessee Stradbroke Rutile Ltd (owned by Consolidated Rutile) applied for a 21 year 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. Sibelco nominated 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 secondly a simple one to have agreement on the ground once the Federal Court judges the native title claim. They also advised Unamin/Sibelco to sort out the leases 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 a historic year, the Federal Court also handed down its Native Title judgment in July 2011. For the first time, a court had recognised 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 ran a political scare campaign to get their original position back on the table. They focused the campaign in Ashgrove where Campbell Newman was running to become premier from outside parliament. Newman duly proposed to extend sand mining to 2035 if the LNP took power. 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 a 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 fightback 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 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 the media, “to tell the world”. These people are proving dignity very much matters.

Fifty-five pieces of legislation

THE thing politics has over policy is that it is a sport. When The Age called this out in its editorial asking for the head of Julia Gillard, it was condemned for focusing on palace politics instead of setting the agenda of policy. The Age knows 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 wide-ranging issues of environment, the world economy, employment, education, tax reform and agriculture.

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 people feel more informed for reading 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 payments 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 has 78 member countries, comprising 54 African and 24 non-African countries. In 2011, the Independent Review of Aid Effectiveness recommended 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. The Australian Industry Participation Authority would administer and monitor compliance 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 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 Katter bill wants to limit foreign investment in Australian agribusiness and agricultural land. It would require the Foreign Investment Review Board to take “the national interest” (a contested concept) into account in foreign investment and 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 Katter bill 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]

A Greens bill to amend the 1992 broadcasting act to prohibit ads on odds, restrict betting ads to after 9pm, prohibit “non-ad ads” and freeze betting ads before sports broadcasts. Given the 1992 act is pre-Internet, this seems papering over 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 Wallarah Two underground mine despite no-one 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 farmers and processors to establish enterprise agreements and collective negotiations.

10 Early Years Quality Fund Special Account Bill 2013

Peter Garrett’s bill to establish the Early Years Quality Fund Special Account providing $300m over two years to long day care services to pay employee wages, costs and expenses and is an early pay off for Gonski 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 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 contravention. Katter wants to ban CSG mining for 24 months.

13 Fair Indexation of Military Superannuation Entitlements Bill 2012

Katter bill to index military retirement benefits the same way as Australian age and service pensions, 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

Katter bill 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

Katter bill 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 the Grape and Wine Research and Development Corporation 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 Katter bill 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 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 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 got little attention in local media. International Business Times 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 NSW. 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. The bill ensures Commonwealth oversight of the site.

27 Marine Engineers Qualifications Bill 2013

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.

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

The Coalition’s Scott Morrison’s 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 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 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. Lane v Morrison 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 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 bill to amend the Native Title Act 1993 to disregard 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

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

46 Renewable Fuel Bill 2013

Katter bill 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

Katter bill to establish an Australian Reconstruction and Development Board to fix financial arrangements of stressed 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

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 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 three 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 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.

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 overseas citizens through 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. With the move to cloud computing, the issue has increasingly profound implications for international relations.

President Barack Obama skipped over those concerns when he admitted yesterday the Guardian and Washington Post stories were broadly accurate. 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 the American journalists used the follow-up to ask was it okay to leak rather than the larger question of whether it was okay to spy on foreigners.

There were two 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 against US citizens if it doesn’t infringe their first amendment rights.

The FBI gave the data to the National Security Agency. The NSA doesn’t get the calls 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 a non-too-intrusive invasion of privacy only affecting the US. “Nobody is listening to your telephone calls,” Obama said. The gathering of metadata was just a “modest encroachments on privacy.”

But the second part of the revelation 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 renewed by Obama using another section of the Patriot Act, the law permits the targeting of customers of participating firms who live outside the US and also Americans who communicate with people outside the US.

The FBI’s Data Intercept Technology Unit program has been extended to access the servers of Facebook, Google, Microsoft, Yahoo, YouTube, Skype, AOL, Apple and video chat company Paltalk. As with Verizon, the FBI passed on the information to NSA. According to WaPo, PRISM can “watch your ideas form as you type.” This deal gives the NSA full access – not just to the metadata but the message contents.

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 denied involvement in the program. Steve Zuckerberg said they never received a blanket request or court order from government agencies asking for information or metadata in bulk and would fight aggressively if they did. Google boss Larry Page’s response was “WTF”. He said they never heard of Prism and they 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. A notable absentee from the list was Twitter which has a history of data request non-compliance, though its data is also publicly available.

Obama reminded journalists of his “two biggest commitments”: 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 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. At least Americans have some safeguards against their government. The rest of us, as Malcolm Turnbull reminds us, have none.

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

The words “*innocent face*” were ruled defamatory by the England and Wales High Court this week. The words appeared in Twitter and 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 tweet was “Why is Lord McAlpine trending? *Innocent face*” which she wrote on November 2, 2012. Terse smart-assed bon mots are common on Twitter and rarely actionable. The problem was the meaning in Bercow’s tweet. The BBC Newsnight program had just aired explosive allegations of a 1980s-era Tory sexually abusing boys in North Wales in the 1970s and 80s. The BBC didn’t name the Thatcher era adviser, but many on Twitter identified Alistair McAlpine as the suspect.

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. But the “*innocent face*” complete with emotion-defining asterisks undermined that argument. Bercow knew full well why Lord McAlpine was trending and was stirring the pot with her 56,000 followers. Unfortunately for Bercow, McAlpine was innocent of the charges.

The BBC commissioned the Newsnight story from an independent not-for-profit news organisation called the Bureau of Investigative Journalism. 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 thought about 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 from Wrexham jail said 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. Waterhouse’s report in 2000 found Messham’s story had no solid evidence to back it up.

The matter rested for 12 years until Stickler re-heated it after 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 but did nothing. Even after Savile died in 2011, Newsnight prepared a report on his sexual antics but shelved it for reasons still not entirely clear.

A year later with the Savile allegations in the open, the BBC agreed to commission the BIJ piece. But they failed to heed warning signs. A day before the show went to air, BIJ boss Iain Overton added fuel to the fire. At an Oxford debate on the media’s influence on politics, he mentioned 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 was the program about McAlpine. Overton replied with a non-denial denial “Well you said it”. Crick did what the BIJ and BBC didn’t and contacted McAlpine, who denied the allegations.

On the morning of the airing, the Overton-Crick conversation did 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.

The alarms continued to ring. Crick took to Twitter to say “the ‘senior political figure’ due to be accused by BBC of being a paedophile denies allegations and “tells me he’ll issue libel writ agst BBC.” Crick went to air on Channel 4 News at 7pm saying a “former senior Conservative official” denies 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. An experienced Newsnight editor, who might have seen the problem, was unavailable having been suspended for his role in the Saville story.

As soon as Newsnight aired, those who knew what Overton told Crick, aired their views online. George Monbiot wrote: “I looked up Lord #McAlpine on t’internet. It says the strangest things.” Monbiot later apologised to McAlpine and made a legal settlement, to carry out work amounting to £25,000 for three charities.

Monbiot admitted he contributed to the “febrile atmosphere” and the redtop media went berserk after these hints. They laid 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 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 Sally Bercow faced 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,” Tugendhat 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 Bercow’s 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 said, anyone can comment 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 crossed the line further than Monbiot. Despite the hoo-hah over “the most expensive tweet in history” 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 stop giving opinions – but they might be more careful how they express them. Twitter is used in many different ways, often badly, but not all end up in court.

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 riots inspired by a Courier Mail article and based on a chapter in the book “Radical Brisbane”.

I was intrigued the Queensland Police Service would host a session on what was not one of their finest hours. The man who invited me was Barry Krosch who had read my article. Krosch was a former police officer who spend nine years in the special branch. He 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. He organised the speakers 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 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 ‘mentally unbalanced and cranks’.

The MC was Brisbane News Ltd boss David Fagan. I am not the biggest fan of Fagan nor his Courier-Mail but he was a smooth and perfect host on the day. Fagan noted the riots had a 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. Another speaker lawyer Terry O’Gorman told us how that radicalisation occurred.  A radical from the era, 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.

Krosch’s thesis supervisor Professor Mark Finnane opened the session with a wider political context for the 1971 riots. The riots did not magically appear from nowhere, Finnane argued, but were a continuation of major political ideas and conflicts affecting sport across Australia and the world. By the 1960s, the South African apartheid system was an anomaly in post-colonial Africa. World pressure was intense and South Africa was excluded 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 rugby and cricket held out. Teams from Australia toured South Africa and when the South Africans came to Australia they were confronted by protests. In 1971, thousands marched against the Springboks in Melbourne and Sydney. Conservative governments in Canberra and the states hated the ‘leftist tendencies’ of the protesters and Joh opposed with ‘special fervour’, as Finnane put it.

Australian Council for Civil Liberties president Terry O’Gorman took the story onwards. O’Gorman 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. O’Gorman was a deeply Catholic and conservative young man and was studying law at the University of Queensland, oblivious to protests going on around him. He was not involved on 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 with many serious injuries.

A day later O’Gorman heard the stories of students involved. Reformist police boss Ray Whitrod tried to keep order but zealous country officers equated protesters as commies and disobeyed him. O’Gorman realised there was a gap between the principles of law and the lack of theoretical restraint in police upholding those laws. He joined 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 radicalised by the riots and a fierce opponent of the regime. He had his revenge 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 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.”

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 10 years and half a million bucks. Anti-coal activist Jonathan Moylan is in trouble 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. If true, it was an important announcement. In Whitehaven’s own words, Maules Creek was “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, the news triggered a stock market collapse for the coal company. While almost all losses were recovered before the day was out, Moylan’s actions raised 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 on the planet.
Maules Creek is in the heart of NSW’s rich Gunnedah Basin. NSW 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. 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, important for energy needs in 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 dividing people on whether his hoax ends justified the means. Supporters like Bob Brown called it necessary civil disobedience to expose ANZ’s investment in coal. The coalition’s Eric Abetz turned it into an attack on Lee Rhiannon and the Greens’ “extreme political tendencies.”

Moylan planned his attack well. He put together a fake ANZ press template, a website and dummy email inbox. The press release was perfect managerial language to frame an argument 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.” It concluded with the statement ANZ was undertaking “a review of coal and gas investments on productive agricultural lands and areas of high biodiversity.”

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

Instead AAP swallowed the news 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 Gunnadah. It is 16km from the railway line servicing the coal terminals at the Port of Newcastle, 360km 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.

It was a dead duck without ANZ’s investment, and within minutes Whitehaven shares plunged 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 with CEO Tony Haggarty and the board blaming it on Tinkler’s financial woes. Tinkler returned fire on Haggarty saying he wanted to increase his holding not decrease it.

That plan may now be in tatters. 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 2c down on the day reflecting other issues with the project. The damage to Tinkler was estimated between $50m and $180m (assuming it wasn’t him who picked up the shares when they were on the rebound).

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). It an offence if a person makes a knowingly false statement 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 to $4.6 million.

The Australian Securities Investment Commission said it would investigate 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 on 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 ends and means. Spence said Moylan’s ethical failings were harmful to the “integrity of the digital informational environment”. Its trustworthiness, Spence said “we all rely on to conduct our legitimate informational transactions.” We are not only biological beings, he said, but increasingly informational beings. “When the informational environment is harmed we are also harmed.”

Spence may be right but he doesn’t excuse AAP not doing its job properly. Nor did 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 invest in projects that cause “significant dislocation of farmers, unacceptable damage to the environment, or social conflict?”