tag:theconversation.com,2011:/global/topics/fiona-nash-9037/articlesFiona Nash – The Conversation2017-10-30T19:03:30Ztag:theconversation.com,2011:article/865402017-10-30T19:03:30Z2017-10-30T19:03:30ZThree reasons why the decisions of Joyce and Nash may be difficult to challenge<figure><img src="https://images.theconversation.com/files/192388/original/file-20171030-17711-1p8hzgp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged?</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Now that Barnaby Joyce, Fiona Nash and three other senators have been <a href="https://theconversation.com/high-court-knocks-barnaby-joyce-out-in-dual-citizenship-case-as-byelection-looms-in-new-england-86470">declared invalidly elected</a>, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.</p>
<p>As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.</p>
<h2>Parliamentary votes</h2>
<p>Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.</p>
<p>The only Australian authority is the 1907 case of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1907/69.html">Vardon v O’Loghlin</a>. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.</p>
<p>Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”. </p>
<p>Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.</p>
<p>This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.</p>
<p>If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.</p>
<h2>Ministerial decisions</h2>
<p>Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.</p>
<p>During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015. </p>
<p>When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly. </p>
<hr>
<p><strong><em>Further reading: <a href="https://theconversation.com/if-high-court-decides-against-ministers-with-dual-citizenship-could-their-decisions-in-office-be-challenged-82688">If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?</a></em></strong></p>
<hr>
<p>Does this mean that the decisions they made during this period could be challenged? There are three important factors at play. </p>
<h2>Standing</h2>
<p>First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter. </p>
<p>For example, if the property or financial interests of a person are affected by a decision, then they may have standing. </p>
<p>There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2017/40.html">postal survey on same-sex marriage</a>, but the High Court did not need to resolve it because the challenge failed anyway. </p>
<p>So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.</p>
<h2>The source of the decision-making power</h2>
<p>Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source. </p>
<p>The waters <a href="https://theconversation.com/george-brandis-suggests-joyce-and-nash-didnt-really-make-their-ministerial-decisions-86524">have been muddied</a> by statements concerning the fact that ministerial decisions are often approved by cabinet. </p>
<p>The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council. </p>
<p>It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.</p>
<h2>Timing and the de facto officer doctrine</h2>
<p>The third issue concerns timing and the possible application of the “de facto officer” doctrine. </p>
<p>This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it. </p>
<p>If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.</p>
<hr>
<p><strong><em>Further reading: <a href="https://theconversation.com/the-high-court-sticks-to-the-letter-of-the-law-on-the-citizenship-seven-85324">The High Court sticks to the letter of the law on the ‘citizenship seven’</a></em></strong></p>
<hr>
<p>The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.</p>
<p>For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the <a href="http://www.paclii.org/sb/cases/SBHC/1989/26.html">High Court of the Solomon Islands</a> relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.</p>
<p>In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.</p>
<p>In 2000, the High Court unanimously held in <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2000/13.html">Bond v The Queen</a> that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”. </p>
<p>The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.</p>
<p>Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cea1918233/s354.html">Court of Disputed Returns</a>, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.</p>
<h2>Where does this leave us?</h2>
<p>It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.</p>
<p>There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).</p>
<p>It would also depend on the extent to which the de facto officers doctrine applied.</p>
<p>It may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.</p><img src="https://counter.theconversation.com/content/86540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received grants from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>Laws passed by MPs while under a citizenship cloud are unlikely to be contested; decisions made by ministers after doubts about their dual citizenship was announced are more complicated matters.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/853242017-10-27T07:24:54Z2017-10-27T07:24:54ZThe High Court sticks to the letter of the law on the ‘citizenship seven’<figure><img src="https://images.theconversation.com/files/192169/original/file-20171027-13355-8drbd7.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.</span> <span class="attribution"><span class="source">AAP/Shutterstock/The Conversation</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>Today, the High Court <a href="https://theconversation.com/high-court-knocks-barnaby-joyce-out-in-dual-citizenship-case-as-byelection-looms-in-new-england-86470">announced</a> the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime <a href="https://theconversation.com/nick-xenophon-set-to-go-back-to-where-he-came-from-85338">announced</a> his resignation from the Senate to return to state politics in South Australia).</p>
<p>In <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2017/45.html">the case</a>, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.</p>
<p>The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a byelection on December 2, which Joyce will contest. </p>
<p>In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.</p>
<p>Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?</p>
<h2>The possible interpretations of Section 44</h2>
<p>The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:</p>
<blockquote>
<p>Any person who … is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.</p>
</blockquote>
<p>Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.</p>
<p>The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid. </p>
<p>However, <a href="https://theconversation.com/if-high-court-decides-against-ministers-with-dual-citizenship-could-their-decisions-in-office-be-challenged-82688">questions have been raised</a> as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.</p>
<p>Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.</p>
<p>None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.</p>
<p>The real argument in the case, then, was how much flexibility could be read into the section.</p>
<p>The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/60.html">Sykes v Cleary</a>. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.</p>
<p>Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.</p>
<p>In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.</p>
<p>Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.</p>
<h2>The High Court opts for certainty</h2>
<p>The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.</p>
<p>In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.</p>
<p>The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.</p>
<h2>The application to the ‘citizenship seven’</h2>
<p>Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found <em>not</em> to have fallen foul of this strict reading were Xenophon and Canavan.</p>
<p>Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.</p>
<p>Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.</p>
<p>Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.</p>
<h2>Is this the end of the parliament’s Section 44 dramas?</h2>
<p>In the immediate aftermath of the High Court’s decision, the government has <a href="http://www.pm.gov.au/media/2017-10-27/media-statement">announced</a> it will refer the decision to the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters">Joint Standing Committee on Electoral Matters</a> to discuss, among other things, possible amendments to Section 44.</p>
<p>The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.</p>
<p>Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.</p>
<p>Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty. </p>
<p>Many might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.</p><img src="https://counter.theconversation.com/content/85324/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council. She is a constitutional consultant to the Clerk of the Commonwealth House of Representatives. </span></em></p>The question will now be whether Section 44 of the Constitution needs reform to enable dual citizens who may have a lot to offer to become MPs.Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/830432017-08-25T05:41:56Z2017-08-25T05:41:56ZVIDEO: Michelle Grattan on the dual citizenship cases in the High Court<figure><img src="https://images.theconversation.com/files/183418/original/file-20170825-18715-lc739d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/ho7kRYaN3Oc?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
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<p>The University of Canberra’s Michelle Grattan and Michael de Percy discuss the week in politics, including the High Court date for the dual citizenship cases, whether Barnaby Joyce and Fiona Nash should stand aside from their ministerial duties, the early signs for the same-sex marriage postal vote, Labor’s campaign on inequality, Bill Shorten being targeted as a socialist, and whether Australia would assist the US in Afghanistan.</p><img src="https://counter.theconversation.com/content/83043/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The University of Canberra’s Michelle Grattan and Michael de Percy discuss the week in politics.Michelle Grattan, Professorial Fellow, University of CanberraMichael de Percy, Senior Lecturer in Political Science, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/826612017-08-17T13:42:18Z2017-08-17T13:42:18ZGrattan on Friday: Malcolm Turnbull’s government has finally defied fiction<figure><img src="https://images.theconversation.com/files/182433/original/file-20170817-28151-1bx73jn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">With the eligibility of the Nationals' leadership under question, Malcolm Turnbull has had a nightmarish week.</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p>In a week belonging more appropriately to Shaun Micallef comedy than parliamentary reality, it’s arguable Pauline Hanson’s <a href="https://theconversation.com/unrepentant-hanson-hopes-burqa-stunt-will-create-debate-82652?utm_source=twitter&utm_medium=twitterbutton">burqa stunt</a> wasn’t the most extraordinary thing that happened in Canberra.</p>
<p>Hanson has extreme beliefs and therefore it mightn’t be so surprising – though it is appalling – that she’s willing to use the parliament as a stage for extremely bad behaviour.</p>
<p>In donning the burqa purchased on eBay and entering the Senate chamber, she was as attention-seeking as the streaker who races naked across the football ground, though her motive was darker. Let’s call out her action, but not play into her cynical pursuit of mega publicity.</p>
<p>Entirely beyond imagination was the week being bookended by the Nationals leader, <a href="https://theconversation.com/new-zealand-claims-barnaby-joyce-as-one-of-its-own-in-new-dramatic-citizenship-turmoil-82463">Barnaby Joyce</a>, and his deputy, senator <a href="https://theconversation.com/new-shock-rocks-government-nationals-deputy-fiona-nash-a-dual-british-citizen-82656">Fiona Nash</a>, standing up in their respective houses to announce they were dual citizens (he a Kiwi, she a Brit).</p>
<p>Joyce and Nash are remaining in cabinet – unlike their Nationals colleague <a href="https://theconversation.com/nationals-matt-canavan-quits-as-resources-minister-in-latest-citizenship-blow-81570">Matt Canavan</a> – and in their leadership roles while the High Court determines the fate of all three, among the batch of cases involving dual citizenship. At issue is their eligibility under the Constitution’s Section 44, which bans dual nationals standing for parliament.</p>
<p>Australian Conservatives’ senator Cory Bernardi, formerly a Liberal, <a href="http://www.smh.com.au/federal-politics/political-news/bernardi-calls-for-parliament-to-be-suspended-as-citizenship-scandal-deepens-20170816-gxy0ae.html">suggested on Thursday</a> that parliament should be <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2016/March/Proroguing_Parliament">prorogued</a> – that is, suspended – until citizenship questions and any subsequent byelections are sorted.</p>
<p>But suspending parliament would disrupt the normal course of government business, delaying legislation and, crucially in political terms, signalling panic.</p>
<p>Joyce continues to participate in parliamentary votes, so the government retains its one-seat majority in the House of Representatives. By its own lights, what credible story could it advance to put parliament on hold? It would look the ultimate in desperation.</p>
<p>There is no doubt the Joyce affair presented the government with a crisis. It then became a matter of management and this was seriously bungled.</p>
<p>Once it took the decision to keep Joyce in cabinet and in the deputy prime ministership, the government was always destined to be vulnerable to a ferocious Labor attack.</p>
<p>But its shock and awe response, with the absurd notion of a “treacherous” Bill Shorten and a Labor <a href="https://theconversation.com/no-it-wasnt-a-conspiracy-that-caused-barnabys-problem-it-was-himself-82525">conspiracy across the Tasman</a> with New Zealand Labour, was deluded from the start.</p>
<p>First, it was a try-on. Both Labor here and Labour in NZ were somewhat apologetic for their roles in the affair, understandable at least for NZ Labour which is facing an election. But what exactly was the wrongdoing by Labor here? Is there anything inherently “treacherous” about a Labor staffer using contacts to check in NZ who is eligible to be a citizen of that country?</p>
<p>Second the tactic, played in stereo, opened the government to ridicule. In particular, her exaggerated performance raised questions about the judgement of the usually astute Foreign Minister Julie Bishop, just days after a <a href="http://www.smh.com.au/comment/capable-and-hardworking-dont-discount-julie-bishops-leadership-potential-20170811-gxugzp.html">laudatory article</a> had asked why she wasn’t mentioned more often as a possible future leader.</p>
<p>Although the circumstances are different, the hyperbolic accusation of “treachery” carries a remote echo from Turnbull’s book The Spy Catcher Trial, about the British government’s attempt to stop the Australian publication of a book by a former UK intelligence officer.</p>
<p>Turnbull, whose successful appearance in the high profile case gave an early boost to his reputation, wrote that then UK opposition leader Neil Kinnock – whom he pressed to “humiliate” the UK attorney-general in the British parliament – “was vigorously attacked in the House of Commons for ‘treacherous’ conduct”, in discussing the case with him.</p>
<p>If Turnbull were prone to bad dreams, his nightmares for the next few months would go something like this.</p>
<p>The government would lose the High Court case challenging the postal ballot on same-sex marriage, or win it and the ballot would return a “no” result.</p>
<p>It would lose Joyce’s citizenship case – and Nash and Canavan would be knocked out as well.</p>
<p>It would then lose the byelection in Joyce’s New England seat, with goodness knows what consequences in the resulting hung parliament.</p>
<p>Oh, and there would be a bruising battle within the government over energy policy, resulting in a much-criticised, wishy-washy outcome that gave no certainty for future investment.</p>
<p>But Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.</p>
<p>He’s predicted in the most unequivocal terms that Joyce will be vindicated in the High Court.</p>
<p>If things went well, the postal vote would sail through the legal challenge, and return a yes vote by a convincing margin with a substantial turnout, making the ballot beyond reasonable reproach, whatever the gripes of the losers. That would lead to parliament changing the law to deliver same-sex marriage by Christmas.</p>
<p>Energy policy would be hard fought within the government’s ranks, but the resulting compromise would be one that was seen as credible and welcomed by business.</p>
<p>The optimistic scenario – we might as well include in it at least one 50-50 Newspoll – would leave the government with a hope of regrouping, after an end-of-year ministerial reshuffle.</p>
<p>Which scenario, or what mixture of them, will come to pass is unforeseeable. But given how life goes for this government, some might regard the prospects for anything like the optimistic one as being in near-miracle territory. </p>
<p>Meanwhile, things are presently so grim they recall vividly some of the blackest times of the Gillard government.</p>
<p>Monday’s Joyce bombshell drove the same-sex marriage battle somewhat into the background, while both sides gear up for intense campaigns and questions remain about the postal ballot.</p>
<p>One of these is, I think, particularly interesting – that is, the argument that the result won’t be a true one because young people especially will be under-represented. The young are, collectively, more in favour of same-sex marriage than older people but less likely to be on the roll, to have a fixed address, or to be familiar with the post.</p>
<p>While this is a problem, I will be a bit contrarian. I think this both demeans the young and lets them off too lightly. They are supposed to enrol for elections anyway; if they have a view on the marriage issue there is both the incentive and opportunity to do so for this ballot. </p>
<p>A week is left – the rolls close August 24. The mobility challenge applies for general elections – it’s a hassle, but not insurmountable.</p>
<p>As for not using the post – well, that is like saying older people weren’t brought up with computers. Sorry, but one has to move with the times – even if, in this case, it’s moving backwards. </p>
<p>Young people are highly savvy with technology – I just don’t accept they can’t come to grips with posting a letter. If in doubt, they can always ask their grandmothers.</p>
<p>The nation is considering an important social issue – young Australians should <a href="https://check.aec.gov.au/">get on the roll</a> and vote.</p>
<iframe src="https://www.podbean.com/media/player/8ppnw-6fcd65?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/82661/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Malcolm Turnbull is an optimist, or so he always tells us, and he’ll be looking at how things could all work out for the best in the best of worlds.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/606172016-06-07T20:22:56Z2016-06-07T20:22:56ZThe f-word enters the campaign and trips up both major parties<figure><img src="https://images.theconversation.com/files/125480/original/image-20160607-31951-19a32qi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bill Shorten, launching Labor's childcare policy, inadvertently set off a debate about the major party leaders' respective feminist credentials.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>The “f” word has made an unexpected entrance into the election campaign – and that “f” word is of course “feminist”.</p>
<p>The launch of Labor’s childcare policy in turn raised questions of who could call themselves a feminist, with Prime Minister Malcolm Turnbull <a href="http://www.theage.com.au/federal-politics/federal-election-2016/election-2016-malcolm-turnbull-declares-himself-a-feminist-and-chokes-up-over-his-family-history-20160606-gpcp73.html">readily claiming the moniker</a> on Monday. </p>
<p>The debate started when Labor offered to <a href="https://theconversation.com/policycheck-labors-3-billion-child-care-plan-60523">bring on new subsidies</a> plus some eligibility changes 18 months earlier than those offered by the government. </p>
<p>Bill Shorten unintentionally fired the feminism debate by saying the changes were targeted at women, both as the major users and household organisers of childcare. <a href="http://www.9news.com.au/national/2016/06/06/12/27/bill-shorten-defends-women-doing-childcare-comments">Nationals deputy Fiona Nash and Today show host Lisa Wilkinson</a> branded this statement “prehistoric”, so Shorten then had to defend his stance by saying men rely on women to handle childcare arrangements.</p>
<p>Nash and Wilkinson’s comments suggested they were taking a much more radical view of the correct allocation of family responsibilities than they believed Shorten to be espousing. Nash went on to say:</p>
<blockquote>
<p>I’m extremely surprised that (deputy Labor leader) Tanya Plibersek and other Labor women haven’t come out and condemned Bill Shorten for making those comments.</p>
</blockquote>
<p>This raises questions about whether these policies assume childcare is a “women’s issue”, or a feminist one. That is, one that is committed to raising the status of women to equality, however defined, rather than simply being <em>directed at</em> women. </p>
<p>For the purpose of this analysis, I am offering my definition of equality, which may be much more stringent that those popularly accepted. It is expressed in a 1970s slogan that stated “women who want equality with men lack ambition”. I believe feminist policies need to be about changing gender inequities and values, not just about women making it on male terms. </p>
<p>The use of the term “women’s issues” illustrates this difference, and probably underpins the concerns raised above about the Shorten approach. To some degree, it both accepts the lesser importance of these issues compared with, say, economic issues, and assumes that these have no universal value. Therefore, explicitly excluding men from childcare responsibilities lowers its status.</p>
<p>I understand that argument and agree with it. But it should also be noted that Nash ignores the flaws in her own Coalition’s policies that undermine its feminist credentials. </p>
<p>Maybe Nash’s term “prehistoric” is a useful starting point. In the early days of 1970s feminism, childcare was seen as an essential part of the liberation of women from the confines of the household, but not just to find jobs. We wanted more collective or communal ways of sharing the care of children as a means of changing gender-based family roles, allowing tasks and responsibilities to be more broadly shared by both sexes and beyond the parents. </p>
<p>We managed to get the first ever daycare funding and subsidies for community-based services. To do so we used arguments about the needs of both children and parents, and included the increased need for childcare because more women were choosing to take on paid work. But our ambitions remained broader. </p>
<p>The neoliberal shift in the 1980s saw our arguments becoming more economic, but we still hoped that changing female roles, and more women assuming positions of power, would continue feminist dreams of redrawing the roles of both men and women to remove gender inequality.</p>
<p>Instead, this change meant women’s groups too often assumed that adopting male roles was the best option on offer. So now we have children’s services that commodify, commercialise and marketise their services.</p>
<p>Fast forward to the current campaign and we have the government and opposition proposing some major changes to childcare policy, with questions being raised about the leaders’ feminist credentials.</p>
<p>This in turn created a wider debate. The Sydney Morning Herald <a href="http://www.smh.com.au/federal-politics/federal-election-2016/election-2016-malcolm-turnbull-declares-himself-a-feminist-and-chokes-up-over-his-family-history-20160606-gpcp73.html#ixzz4Aqk9ug00">reported</a>:</p>
<blockquote>
<p>Prime Minister Malcolm Turnbull has declared himself a feminist – something Foreign Minister Julie Bishop and Minister for Women Michaelia Cash have previously refused to do … “I am a feminist, yes,” Mr Turnbull proclaimed twice on Monday afternoon, saying his father ingrained in him a deep respect for women and he believes they are “taking the world by storm”, even in traditionally male-dominated fields. “Girls can do anything and in particular they can do engineering,” he told a Melbourne event celebrating women in science, technology, engineering and manufacturing.</p>
</blockquote>
<p>However, Turnbull has apparently failed to recognise that his party policy has serious feminist flaws built in, which are even lauded by his minister, Simon Birmingham. The flaw is the so-called activity test that excludes from any subsidy those families who have no work-related need for care, or defined disadvantaged.</p>
<p>Childcare is redefined as funded to increase women’s workforce participation. These changes therefore exclude the children of stay-at-home mothers, once the core constituency of the conservative parties and used to criticise “working mothers”.</p>
<p>Now the Coalition’s activity policy may exclude an estimated 149,000 families and leave them worse off, says <a href="https://theconversation.com/policycheck-labors-3-billion-child-care-plan-60523">the Australian National University’s Ben Phillips</a>, compared to the government’s estimate of just 37,000. Either way, the message is that these services are only for women who have paid jobs or do approved volunteering.</p>
<p>Yet Birmingham sees this as a valuable money-saving policy. <a href="http://www.abc.net.au/am/content/2016/s4476114.htm">On ABC AM he said</a>:</p>
<blockquote>
<p>We want to make sure that the families who are in the workforce, studying or volunteering, are the ones who are getting first priority in terms of government support for childcare places. Not people who are staying-at-home families. </p>
</blockquote>
<p>Labor has done the right thing by clearly saying it will not impose the activity test, so Shorten deserves a feminist thank you for that. Labor also receives credit for the decision to retain and extend the budget-based funding model, the last vestige of the old community-based direct-funded service that serves many Indigenous and remote communities. </p>
<p>The Coalition policy loses more feminist points by cutting this program, as it is non-market program funding that allows for the social role changes that market models don’t.</p>
<p>So Turnbull’s idea of feminism seems out of step with that of his colleagues, who are happy to stick with “women’s issues” and equality defined as success in male terms. Was Nash really showing a commitment to more serious gender equity, or just looking for a cheap shot at Labor? </p>
<p>What is clear is that acceptance of feminist goals – or at least ease with the term – is not widespread in the Coalition. Mathias Cormann’s failure to follow Turnbull’s acceptance of the feminist tag suggests caution, as did the earlier rejections of the term by Bishop and Cash.</p><img src="https://counter.theconversation.com/content/60617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eva Cox does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Talk of ‘women’s issues’, such as childcare, both accepts they are less important than other issues and assumes they have no universal value.Eva Cox, Professorial Fellow, Jumbunna IHL, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/498092015-11-02T00:11:42Z2015-11-02T00:11:42ZFactCheck Q&A: can medicinal cannabis oil be imported into Australia?<figure><img src="https://images.theconversation.com/files/100039/original/image-20151028-21130-gf595c.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rural Health Minister Fiona Nash (right), sitting next to singer Katie Noonan (left) on Q&A.</span> <span class="attribution"><span class="source">Q&A</span></span></figcaption></figure><p><strong>The Conversation is fact-checking claims made on Q&A, broadcast Mondays on the ABC at 9:35pm. Thank you to everyone who sent us quotes for checking via <a href="http://www.twitter.com/conversationEDU">Twitter</a> using hashtags #FactCheck and #QandA, on <a href="http://www.facebook.com/conversationEDU">Facebook</a> or by <a href="mailto:checkit@theconversation.edu.au">email</a>.</strong></p>
<hr>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/NNwyW6SJE1A?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Excerpt from Q&A, October 26, 2015.</span></figcaption>
</figure>
<blockquote>
<p>RHONDA MILES: Our 15 year old epileptic son Lachlan has been on life support seven times. He has been hospitalised 95 times in the last four and a half years… We welcome the Federal Health Minister’s moves last week in her <a href="https://www.health.gov.au/internet/ministers/publishing.nsf/Content/546FB9EF48A2D570CA257EE1000B98F2/$File/SL-123.pdf">announcement</a> that she will set up a farm to pharmacy medical cannabis production system in Australia by 2018. That doesn’t help my son now. Why can’t we import through the special access scheme and TGA, quality-controlled medical cannabis oil from overseas now?</p>
<p>FIONA NASH: … The special access scheme that exists, if there is a clinician that wishes to bring in a product that is not on the register of therapeutic goods, the capacity does exist to do that. – Minister for Rural Health, Fiona Nash, speaking on Q&A on October 26, 2015.</p>
</blockquote>
<p>Minister Nash is correct. </p>
<p>It is possible to use the Therapeutic Goods Authority (TGA) to access unlicensed therapeutic goods such as cannabis-based medicines, which some people believe may help treat epilepsy. (The research on its efficacy is <a href="http://www.ncbi.nlm.nih.gov/pubmed/24595491">not conclusive</a>). An unlicensed product may be imported usually through one of two ways - a clinical trial approved through an ethics committee, or through the Special Access Scheme (SAS). </p>
<p>When asked for a source to support her assertion, a spokesman for Nash sent a response from a TGA official that said the Special Access Scheme (SAS) can be used for the importation of a cannabinoid product for a person, but there may be state-based rules too. You can read the full response <a href="https://theconversation.com/full-response-from-tga-50017">here</a>. </p>
<h2>The Special Access Scheme</h2>
<p>The SAS is for compassionate use of unlicensed products for individual patients. There are two ways the scheme is applied:</p>
<p><a href="https://www.tga.gov.au/form/special-access-scheme">Category A</a> is for patients with terminally ill conditions, and it could reasonably be argued that certain types of severe epilepsy meet the criteria for a terminal illness. </p>
<p>A doctor can provide an unapproved product by securing supply from a manufacturer, and registering the application with the TGA. Formal assessment by the TGA is not needed. </p>
<p>However, <a href="https://www.tga.gov.au/scheduling-basics">Schedule 9</a> drugs, such as cannabis, cannot be supplied under Category A, although certain cannabis based products are no longer listed as Schedule 9 drugs, such as cannabidiol (CBD, <a href="https://www.tga.gov.au/scheduling-basics">Schedule 4</a>), nabiximols (plant extracted THC/CBD, Schedule 8), or synthetic THC (e.g. <a href="https://www.nlm.nih.gov/medlineplus/druginfo/meds/a607054.html">dronabinol</a>) – and these could be within scope for a Category A application. </p>
<p>The other SAS category, <a href="https://www.tga.gov.au/form/special-access-scheme">Category B</a>, applies to all other patients, and there is no restriction to Schedule 9 drugs being used. </p>
<p>Category B applications undergo greater scrutiny by the TGA and are assessed on a case-by-case basis. </p>
<p>The TGA’s assessment balances a number of factors, including: </p>
<ul>
<li><p>The patient’s doctor must be able to justify using the product, demonstrating the seriousness of the patient’s condition and the history of other treatments. </p></li>
<li><p>Information about the route of administration, dose, active ingredients, proposed monitoring procedures, and any data on the safety and efficacy of the product.</p></li>
<li><p>The prescriber must have the relevant expertise appropriate to the condition being treated. </p></li>
</ul>
<p>Each case is assessed on an individual basis, and the process can take several weeks to months. A clinical trial model may be more appropriate for groups of patients with a particular condition seeking to use an unlicensed product. </p>
<h2>Clinical trials</h2>
<p>Unlicensed products can also be used under clinical trial conditions within the TGA framework using the <a href="https://www.tga.gov.au/form/ctn-scheme-forms">Clinical Trial Notification</a> (CTN) and <a href="https://www.tga.gov.au/form/ctx-scheme-forms">Clinical Trial Exemption</a> (CTX) schemes. </p>
<p>Clinical trials usually examine whether a medicine works (using a control group), but may focus more on safety (for example assessing side effects over an extended period of treatment). Safety studies are not uncommon as a means for enabling compassionate access to unlicensed medicines. </p>
<p>Investigational medicines must meet certain safety standards to be approved for clinical trials, and are assessed either by a human research ethics committee (CTN) or by the TGA (CTX). Cannabinoids (including plant matter) have previously been imported into Australia under these conditions, and there are several trials undertaking this process at present in Australia. </p>
<p>Whilst not commonly used, another mechanism for accessing unlicensed products through the TGA for compassionate use is the <a href="https://www.tga.gov.au/form/authorised-prescribers">Approved Prescriber</a> model, which requires many similar steps to establishing a clinical trial, with human research ethics committee approval.</p>
<h2>Importing cannabinoid medicines</h2>
<p>Both approaches require a high quality product that meets safety standards for use in humans. A range of existing cannabis based products meet these requirements, including pharmaceutical products (such as cannabidiol, dronabinol and nabiximols, although the latter two are THC-rich products unsuitable for pediatric epilepsy), and cannabis plant based products (including cannabis flower and cannabis extracted oils) manufactured under strict <a href="https://www.tga.gov.au/good-manufacturing-practice-overview">Good Manufacturing Practice</a> standards. There are trials underway in Australia using such products. </p>
<p>Other potential products are the hemp-based oils such as <a href="http://metro.co.uk/2015/08/11/first-legal-cannabis-oil-to-go-on-sale-in-the-uk-5336811/">Charlotte’s Web</a>® from Colorado, or <a href="https://www.endoca.com/">Endoca</a>® from Denmark, although these CBD rich products are usually registered internationally as foods rather than medicines, and it is unclear as to whether these meet TGA standards. </p>
<h2>Verdict</h2>
<p>Minister Nash is correct. An appropriately qualified doctor could apply to the TGA to import or supply a cannabinoid product for a patient under the Special Access Scheme. However, cannabis plant matter or cannabis extracts (excepting cannabidiol-rich products) can only be considered under Category B of the SAS, and these products must meet production standards. </p>
<p>Alternatively, clinical trials could be established. <strong>– David Allsop and Nicholas Lintzeris.</strong></p>
<h2>Review</h2>
<p>This is a sound analysis. The use of medical cannabinoids for epilepsy is a subject of much current interest, although the evidence for this is mostly anecdotal. This article describes the path to such treatment in Australia at the current time. Clearly, it would be a major undertaking for an individual patient. Most epileptologists would support the trial option where experience can be concentrated in expert hands for a clearly defined group such as people with <a href="http://www.dravetfoundation.org/dravet-syndrome/what-is-dravet-syndrome">Dravet syndrome</a>. Only with quality evidence, properly collected, can the role of cannabinoids be established for general use in people with epilepsy. <strong>– Graeme Jackson</strong>.</p>
<hr>
<p><div class="callout"> Have you ever seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.</div></p><img src="https://counter.theconversation.com/content/49809/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David J. Allsop has consulted for GW Pharmaceuticals in the past but currently does not. He is funded by the NHMRC and by a philanthropic donation from the Lambert family, which was used to form the new Lambert Initiative for Cannabinoid Therapeutics.</span></em></p><p class="fine-print"><em><span>Nicholas Lintzeris has received funding from the NHMRC to conduct investigator-led clinical trials incorporating the medicine nabiximols.</span></em></p><p class="fine-print"><em><span>Graeme Jackson receives funding from NHMRC.</span></em></p>When asked about importing cannabis oil to treat child epilepsy, rural health minister Fiona Nash told Q&A that the TGA can allow importation of products not registered in Australia. Is that right?David J. Allsop, Associate Professor in Psychopharmacology and Addiction Medicine at the School of Psychology, University of SydneyNicholas Lintzeris, Clinical Professor and Addiction Medicine specialist, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/233202014-02-26T03:42:56Z2014-02-26T03:42:56ZFood labels are about informing choice, not some nanny state<figure><img src="https://images.theconversation.com/files/42522/original/d6ssry4t-1393379143.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Food labelling has been a central plank of the food regulatory system since it first emerged in the mid-1800s.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/tranpalitu/2362249322/sizes/o/">Marcos Pozo López/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Coalition MP Ewen Jones has <a href="http://www.abc.net.au/news/2014-02-26/ewen-jones-says-food-star-ratings-wont-work/5283940">spoken out against</a> reinstating the health star rating website controversially closed down by the assistant health minister. Jones says the government shouldn’t interfere with people’s lives, but food labelling requirements aren’t a manifestation of the nanny state, they’re there to provide accurate, easy-to-understand information. </p>
<p>Indeed, food labelling has been a central plank of the food regulatory system since it first emerged in the mid-1800s. Back then, it was not uncommon for products to be adulterated, or marketed with fraudulent claims.</p>
<p>There were reported cases of people being deceived about the weight of the food or its composition. One practice involved adding white colouring to water to create the appearance of milk. Labels provided an effective tool to help food regulators solve such problems.</p>
<h2>Things stay the same?</h2>
<p>The main issues confronting food regulators have now changed considerably, partly due to the availability of many more products. You might think this increased choice has provided increased opportunity to choose a healthy and varied diet, but that’s not necessarily the case.</p>
<p>Rather, what we have is a proliferation of high-energy, nutrient-poor “discretionary” or junk food constructed from the same basic highly-refined ingredients, such as corn, soy, sugar, fats and salt, typically coloured, flavoured, packaged and marketed in different ways. And the increased amount of information that has accompanied this proliferation often translates into increased confusion.</p>
<p>What’s more, many food products are still marketed with dubious claims. Highly-processed breakfast cereals containing a third of their weight in added sugar, for instance, are marketed as being healthy because they contain a number of added synthetic vitamins and minerals.</p>
<p>Food labels can now be the shopper’s ally by promoting informed choices for a healthy balanced diet, or adversary by promulgating misleading claims that create confusion and uncertainty.</p>
<p>Food regulators are supposed to use labels to help achieve two primary statutory objectives – to protect public health and safety and to provide adequate information relating to food to enable consumers to make informed choices. But there are many reasons why the current approach is inadequate.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=310&fit=crop&dpr=1 600w, https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=310&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=310&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=389&fit=crop&dpr=1 754w, https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=389&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/42519/original/hgtqs3k4-1393378511.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=389&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A screenshot from the health star rating food labelling website shut down by the government.</span>
<span class="attribution"><span class="source">Christina Pollard</span></span>
</figcaption>
</figure>
<h2>Health claims</h2>
<p>Marketing products with health claims, such as “This product helps reduce the risk of heart disease” provides a strong angle for generating increased sales. And the food industry has fought hard for permission to use such claims on food labels.</p>
<p><a href="http://www.ncbi.nlm.nih.gov/pubmed/18375217">Despite evidence</a> showing these claims have little, if any, benefit for the health of the population, in early 2013, Australian ministers permitted the use of health claims on food labels. </p>
<p>Public health and consumer groups expressed concern that such claims make a nonsense of the fundamental nutrition principle that the balance of the total diet shapes health outcomes, not individual foods. </p>
<p>They also pointed out that junk food manufacturers would take advantage of the marketing potential of such claims. And the <a href="http://www.foodstandards.gov.au/industry/labelling/Pages/Notified-food-health-relationships.aspx">first notification</a> the food regulator received was from the manufacturer of a highly-processed food claiming to have a “calorie burning effect”. </p>
<p>If health claims are to genuinely be about protecting public health and not marketing, food labelling regulations might mandate them and link products’ added sugar with dental cavities, for instance, or their salt content with hypertension.</p>
<h2>Spreading confusion</h2>
<p>People are frequently confused about the information appearing on food labels. And this confusion isn’t helped by the use of words such as “natural” or “real”, which are undefined in labelling law but imply some kind of benefit.</p>
<p>Some products imply they’re made with fruit when, in fact, they contain little fruit and are very high in sugar. Following a complaint from the Obesity Policy Coalition about the potential misrepresentation of a “65% real fruit” claim on Uncle Tobys Roll-Ups, for instance, the <a href="http://registers.accc.gov.au/content/item.phtml?itemId=762395&nodeId=f4a5abbb563d78fb3dcd2d66b01a2313&fn=d06_62453.pdf">Australian Competition and Consumer Commission</a> took the view that the claim was potentially misleading and deceptive.</p>
<p>Confusion can also be created by what’s implied but not explicitly said. A claim such as “97% fat free”, for instance, might be displayed on products that wouldn’t usually contain fat anyway but have added sugar, such as confectionery.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=445&fit=crop&dpr=1 600w, https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=445&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=445&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=560&fit=crop&dpr=1 754w, https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=560&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/42518/original/f9nmfbbw-1393378427.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=560&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A screenshot from the health star rating food labelling website showing what the system would look like.</span>
<span class="attribution"><span class="source">Christina Pollard</span></span>
</figcaption>
</figure>
<p>Endorsement schemes displayed on food labels are another source of consumer confusion because the criteria used to endorse food products can vary among schemes and with nutrition policy recommendations. Concern has been expressed about the <a href="https://www.mja.com.au/insight/2011/7/rosemary-stanton-tick-program-misguides-consumers?0=ip_login_no_cache%3Da40209ecb0470c4aaba6c2788225e84b">National Heart Foundation’s “Tick” scheme</a>, for instance, because it’s not always consistent with Dietary Guideline recommendations.</p>
<p>The emphasis on most food labels is placed on persuading people to buy the product rather than informing them about it. That’s why the way information is framed on labels imply benefit.</p>
<p>Labels range from “information only” to information with an element of persuasion – “5% fat” is information only whereas “95% fat-free” is information plus persuasion. And people already interested in low-fat products <a href="http://www.ipcommunications.com.au/ipsocm.html">will be persuaded to choose</a> the 95% fat-free product.</p>
<h2>Protecting public health and promoting informed choice</h2>
<p>Clearly, there are problems with the current food labelling regime. But why does something that promotes informed choice have to be so difficult? </p>
<p>Why would Jones and the assistant health minister Fiona Nash want to maintain an information asymmetry in favour of the food industry and at the expense of the people they’re elected to represent? </p>
<p>At least seven years in the making, with the involvement of food ministers, government food regulation advisors, food industry representatives, consumer advocates, public health organisations, and an independent public health nutrition advisor, the Star Rating labelling system was a good start to positive change. </p>
<p>The approach is informative, easy to understand and targeted at helping correct dietary imbalances that are one of the major public health problems confronting food regulators.</p>
<p>But as the debacle with the website showing the system has illustrated, the challenge with developing and implementing informative food labelling is often less about evidence and more about the political will to stand up to the interests of the food industry to whom clear labels may not always be palatable.</p><img src="https://counter.theconversation.com/content/23320/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Lawrence is the Principal Investigator for an ARC-linkage funded project modelling policy interventions for food security and sustainability and a Chief Investigator with the NHMRC Centre for Research Excellence in Obesity Policy and Food Systems based at Deakin University. He does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article.</span></em></p><p class="fine-print"><em><span>Christina Pollard is the Principal Investigator on Curtin University’s Healthway funded Food Law, Policy and Communications to Protect Public Health. Curtin University has received 5 years of funding to assist the translation of research into practice through the FLPC project.
She works part-time for the Department of Health in Western Australia as a Nutrition Policy Advisor for the Chronic Disease Prevention Directorate. She has co-written this article as an academic and not as a public servant and not representing the views of the Department.</span></em></p>Coalition MP Ewen Jones has spoken out against reinstating the health star rating website controversially closed down by the assistant health minister. Jones says the government shouldn’t interfere with…Mark Lawrence, Professor of Public Health Nutrition, Deakin UniversityChristina Mary Pollard, Research Fellow, School of Public Health, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/232922014-02-18T03:33:37Z2014-02-18T03:33:37ZShould the food industry resign from the health department too?<figure><img src="https://images.theconversation.com/files/41767/original/bwd2mq6r-1392693149.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Assistant Minister for Health Fiona Nash's chief of staff has had to resign because of conflicts of interest.</span> <span class="attribution"><span class="source">Alan Porritt/AAP</span></span></figcaption></figure><p><a href="http://www.theguardian.com/world/2014/feb/14/fiona-nash-under-pressure-over-claims-she-misled-senate">Furore over links</a> between Assistant Minister for Health Fiona Nash’s office and industry continues today with <a href="http://www.smh.com.au/federal-politics/political-news/alcohol-lobby-link-to-dumping-health-body-20140217-32wft.html">revelations that her former chief of staff is connected to the alcohol</a>, as well as the food industry. </p>
<p><a href="http://www.smh.com.au/federal-politics/political-news/chief-of-staff-for-minister-fiona-nash-forced-to-resign-20140214-32rli.html">Alastair Furnival resigned last Friday</a> over his role in shutting down a website about the health star rating food labelling system and it’s now been revealed that he played a key role in cancelling the funding of the Alcohol and other Drugs Council of Australia. </p>
<p>Furnival is <a href="http://www.smh.com.au/federal-politics/political-news/chief-of-staff-for-minister-fiona-nash-forced-to-resign-20140214-32rli.html">co-owner of a lobbying firm</a> that has represented major food companies opposed to the new front-of-pack labelling system. According to Fairfax, he and his wife also co-own a company, which, in turn, owns another that lobbied for the alcohol industry in 2012. </p>
<p>Such <a href="http://www.nejm.org/doi/full/10.1056/NEJM199308193290812">conflicts of interest</a> place question marks over an individual’s capacity to judge a situation, perform a duty or make a decision in a fair and impartial manner. But what if a public institution, such as the Department of Health itself, has conflicted interests?</p>
<p>Furnival’s conflict of interest is worrying and should be thoroughly scrutinised. But the influence of the food and alcohol industries at the institutional-level precedes Furnival and will continue despite his resignation.</p>
<h2>A growing closeness</h2>
<p>The <a href="http://www.afgc.org.au/whoweare.html">Australian Food and Grocery Council</a> (AFGC) and the health department have developed close ties in recent years. Senior executives of the Council sat on the <a href="http://www.nhmrc.gov.au/your-health/nutrition/dietary-guidelines-working-committee">Dietary Guidelines Working Committee</a> and the <a>National Preventive Health Taskforce</a>.</p>
<p>It <a href="https://www.health.gov.au/internet/main/publishing.nsf/Content/phd-nutrition-childrens-survey">co-funded a major nutritional health research survey</a> with the health department in 2007, and is a prominent member of the <a href="http://www.foodhealthdialogue.gov.au/internet/foodandhealth/publishing.nsf">Food and Health Dialogue</a>.</p>
<p>At the 2009 AFGC annual dinner, Nicola Roxon, then-minister for health said these relationships weren’t cause for concern. <a href="http://web.archive.org/web/20100305011009/http://www.health.gov.au/internet/ministers/publishing.nsf/Content/sp-yr09-nr-nrsp281009.htm">Roxon</a> welcomed the industry’s partnership with health prevention strategies and research projects, adding that she “saw no reason for people to fear industry engagement – quite the opposite”. </p>
<p>Perhaps. But when the <a href="http://www.afgc.org.au/whatwedo.html">aim of the food and grocery council</a> is to “influence federal and state policies to ensure our members’ views are represented at the highest level”, legitimate questions arise about whether these partnerships conflict with the work of the health department. </p>
<p>Lawrence Lessig, professor of law and director of the <a href="http://www.ethics.harvard.edu/lab/about-us">Edmond J. Safra Center for Ethics</a> at Harvard University, warns that such partnerships can <a href="http://www.ethics.harvard.edu/lab/about-us">corrupt an institution</a> by creating:</p>
<blockquote>
<p>an economy of influence that illegitimately weakens the effectiveness of an institution especially by weakening the public trust of the institution. </p>
</blockquote>
<p>So does the health department’s relationship with the food and grocery council weaken its effectiveness and public trust of the institution? For many, the answer is yes.</p>
<h2>Keeping everyone happy?</h2>
<p>In 2011, the health department responded to the <a href="http://www.foodlabellingreview.gov.au/internet/foodlabelling/publishing.nsf/content/home">Blewett Review</a> of food labelling law and policy by rejecting the major recommendation of a traffic-light front-of-pack labelling system. <a href="http://www.smh.com.au/national/health/fat-chance-of-breaking-junk-food-grip-20111230-1pfgd.html">Journalists</a>, <a href="http://www.phaa.net.au/documents/111209%20Food%20Ministers%20too%20close%20to%20industry.pdf">public health researchers</a> and <a href="http://www.abc.net.au/lateline/content/2011/s3251022.htm">consumer groups</a> all believed the decision was due to the food and grocery council’s influence. </p>
<p>Catherine King, then-parliamentary secretary for health, defended the decision in an <a href="http://www.abc.net.au/radionational/programs/nationalinterest/stop2c-look2c-buy3a-traffic-lights-on-food/3710042#transcript">interview</a> with the ABC. King explained the traffic-light scheme would “be a fairly big change for industry” and decided that “we need to get public health and industry together to try and…look at another system”.</p>
<p>This led to the <a href="https://www.health.gov.au/internet/main/publishing.nsf/Content/frontofpackobjectives">Forum on Food Regulation</a>, a collaborative process involving the AFGC, public health researchers and health department officials. The Forum’s objective was to develop a front-of-pack food labelling system that “must strike a balance between seeking to ensure good public health outcomes and ensuring a strong and profitable food industry”.</p>
<p>But are these objectives compatible? If a profitable industry undermines public health, is a balance feasible? And does the attempt to reach a balance weaken the effectiveness of the health department, the institution that arbitrates this relationship?</p>
<p>A profitable food industry is certainly in the nation’s economic interest. But the idea that it should be a primary concern for the health department rubs against its more obvious objective of ensuring public health.</p>
<p>Individual conflicts of interest can cause <a href="http://en.wikipedia.org/wiki/Kids_for_cash_scandal">significant damage</a> – Furnival and those responsible for his appointment need to be fully investigated. But whether the increasing acceptance of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268079">public-private partnerships</a> is the best way to ensure public goods needs critical attention. These partnerships have the potential to undermine public trust and weaken the effectiveness of vital public institutions. </p>
<p>The public needs to be confident that public officials and public institutions are acting in their interest. Recent events at the individual and institutional level imply that such confidence is misplaced.</p>
<p><em>CORRECTION:</em> This article has been amended to reflect that the name of the health department recently changed from Department of Health and Ageing to Department of Health. The error was introduced during the editing process.</p><img src="https://counter.theconversation.com/content/23292/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The author would like to thank Associate Professor Jonathan H. Marks and Emeritus Professor Donald B. Thompson. This analysis partly draws on research undertaken as Postdoctoral Fellow on their collaborative project (<a href="http://rockethics.psu.edu/bioethics/food-ethics/research">http://rockethics.psu.edu/bioethics/food-ethics/research</a>) jointly funded by the Rock Ethics Institute at the Pennsylvania State University and the Edmond J. Safra Center for Ethics at Harvard University.</span></em></p>Furore over links between Assistant Minister for Health Fiona Nash’s office and industry continues today with revelations that her former chief of staff is connected to the alcohol, as well as the food…Christopher Mayes, Post-Doctoral Fellow in Bioethics, University of SydneyLicensed as Creative Commons – attribution, no derivatives.