tag:theconversation.com,2011:/us/topics/george-brandis-7898/articlesGeorge Brandis – The Conversation2023-09-25T10:40:27Ztag:theconversation.com,2011:article/2142622023-09-25T10:40:27Z2023-09-25T10:40:27ZView from The Hill: ‘Player’ Mike Pezzullo undone by power play<p>Mike Pezzullo, one of Canberra’s most powerful and certainly most controversial public servants, cannot survive the revelation of the trove of text messages showing him blatantly inserting himself into the political process. </p>
<p>Pezzullo, the secretary of the Department of Home Affairs, has been stood aside while his extraordinary behaviour, <a href="https://www.smh.com.au/national/power-player-20230925-p5e7fq.html">exposed by Nine Entertainment</a>, is scrutinised by a former public service commissioner, Lynelle Briggs. But the end of the story is predictable. </p>
<p>In the tsunami of encrypted texts, running over five years and sent to Scott Briggs (no relation to Lynelle Briggs), a Liberal insider and confidant of prime ministers Malcolm Turnbull and Scott Morrison, Pezzullo repeatedly lobbied for his departmental interests and his views. </p>
<p>He dissed ministers in the way of these interests or those (and other people) he didn’t rate. He used Briggs to seek leverage with the then PMs, asking for his opinions to be passed on. Briggs was happy to comply.</p>
<p>Nine <a href="https://www.9now.com.au/60-minutes/2023/episode-34">says it learned of the messages</a> “via a third party who obtained lawful access to them”. </p>
<p>Pezzullo is a one-off in today’s public service. He can perhaps be partly understood by referring back to the so-called bureaucratic “mandarins” of decades ago. They ran their departments with iron grips, and in some cases were, or tried to be, as powerful as ministers, or more so. They gave no quarter in bureaucratic battles.</p>
<p>The mandarins were “players”. Pezzullo is a “player”. </p>
<p>He’s tough and polarising, with supporters and bitter enemies. Critics have long questioned his judgement. On security matters, he’s the hawks’ hawk. While at first blush his texts appear highly partisan, that is too simplistic an interpretation. He fights bureaucratic and policy/ideological battles, rather than being directly party-political.</p>
<p>His addiction to texting is certainly bipartisan. Within the Albanese government they joke about it starting first thing in the morning and running well into the night. </p>
<p>As a public servant, Pezzullo has served both sides of politics. When in the defence department, he was lead author of the Rudd government’s 2009 defence white paper, which raised the hackles of China. Earlier, he was a senior staffer to Kim Beazley when Beazley was opposition leader. His primary interest is defence – he would have liked nothing better than to head the defence department.</p>
<p>When Anthony Albanese won government, some in Labor wanted Pezzullo gone. He survived not least because the new home affairs minister, Clare O'Neil, in charge of this huge, sprawling empire, needed an experienced hand. </p>
<p>In some ways, Pezzullo is a stickler for process – as we saw when Morrison was trying to make political use of a boat headed for Australia on election day – which makes these texts all the more shocking. But he portrayed himself as acting in broader interests, telling Briggs at one point during the 2018 battle over the prime ministership, “I say that from a policy perspective and not from a Liberal leadership perspective”. </p>
<p>Pezzullo lobbied relentlessly for the creation of the home affairs “super” department, which Turnbull set up in December 2017 to placate the ambitious Peter Dutton. </p>
<p>Those who resisted its establishment, particularly then attorney-general George Brandis, became Pezzullo’s targets. He accused Brandis of “lawyering” public servants “into a state of befuddlement”. </p>
<p>Pezzullo is particularly fond of military imagery. During the struggle to get home affairs up, he texted Briggs, “I am running deep and silent. Won’t come up to periscope depth for a while”. In another message he said the attorney-general’s department needed to be “put to the sword” on a matter, then “we can break out of the Normandy beachhead”. (In a 2021 Anzac Day message to staff Pezzullo caused a public ruckus when he wrote of “the drums of war” beating.)</p>
<p>Moderates were an all-round worry in the Pezzullo texts. Marise Payne, in the defence portfolio, was “completely ineffectual”, “a problem” and “doesn’t have a clear view of the national interest”. Julie Bishop received short shrift; he “almost had a heart attack” when she put her hand up as a candidate in the 2018 upheaval. He was sarcastically relieved when Briggs assured him she had few numbers.</p>
<p>In that battle, in which Dutton (Pezzullo’s minister) challenged Turnbull and Morrison ultimately emerged as prime minister, Pezzullo was concerned about who would end up his minister. </p>
<p>“You need a right winger in there – people smugglers will be watching”, he texted Briggs. </p>
<p>“Any suggestion of a moderate going in would be potentially lethal viz” for Operation Sovereign Borders, he said. </p>
<p>Pezzullo had little time for the head of the prime minister’s department, Martin Parkinson: he was not up to the job and “entirely lacking in self awareness”. In one of those nice ironies of politics, Parkinson was commissioned by the Labor government to lead O'Neil’s migration review.</p>
<p>Pezzullo, whose tug-of-war appearances at Senate estimates hearings are often compulsory viewing, complained to Briggs in 2020, after enduring a very long session, that the hearings were “actually a concern for our democracy”. But he boasted that “in batting terms we are 0-400”.</p>
<p>Free speech came well behind security in Pezzullo’s priorities. After an awkward story by reporter Annika Smethurst, who was subjected to a police raid, Pezzullo reportedly argued for a revival of the D-notice system, under which editors were requested not to publish certain information affecting defence or national security. It didn’t happen.</p>
<p>Pezzullo in one text asked Briggs, “Please keep our conversations confidential. Tricky tight rope for me”. Tricky indeed. The player obsessed by security has been undone by some unidentified power play that has left him totally exposed.</p><img src="https://counter.theconversation.com/content/214262/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>Pezzullo is a one-off in the today’s public service. He can perhaps be best understood by referring back to the so-called bureaucratic “mandarins” of decades ago.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1453972020-09-02T05:23:57Z2020-09-02T05:23:57ZToo little, too late, too confusing? The funding criteria for the arts COVID package is a mess<p>On Tuesday, seven months after the sector closed down in March, applications opened for the government’s COVID-19 arts relief package, named “<a href="https://www.arts.gov.au/funding-and-support/rise-fund">Restart Investment to Sustain and Expand</a>”, or RISE.</p>
<p>A$75 million will be allocated between 2020 and 2021, but a close read of the criteria for this new funding program raises more questions than it answers. </p>
<p>The recipients will be selected by department officials. Their proposals must be “efficient, effective, economical and ethical”. </p>
<p>And, perhaps most crucially, in the shadow of the “<a href="https://theconversation.com/more-sports-rort-questions-for-morrison-after-bridget-mckenzie-speaks-out-133160">sports rorts</a>”, the NSW “<a href="https://twitter.com/JodiMcKayMP/status/1265118495009673217">arts rorts</a>”, and the pain felt by the sector during <a href="https://theconversation.com/after-the-catalyst-arts-funding-mess-many-questions-remain-74848">the Brandis era</a>, the final say on where the grants go will be placed in the hands of the federal minister for the arts, Paul Fletcher.</p>
<h2>An opaque process</h2>
<p>The standard mode for delivering arts funding in Australia is through arms length funding judged by artform peers. </p>
<p>It has been <a href="http://www.compilerpress.ca/Cultural%20Economics/Works/Arm%201%201989.htm">long recognised</a> government arts support should be kept separate from political processes, and arts knowledge – as in fields such as science, medicine or education – is a <a href="https://canadacouncil.ca/funding/funding-decisions/decision-making-process">prerequisite</a> for determining the quality of arts funding applications. </p>
<p>The RISE <a href="https://www.arts.gov.au/sites/default/files/restart-investment-to-sustain-and-expand-rise-fund.pdf">funding guidelines</a> applications will be assessed by “experienced assessors” from the Department of Infrastructure, Transport, Regional Development and Communications – a department that dropped “arts” from its name <a href="https://mumbrella.com.au/scott-morrison-abolishes-department-of-communications-and-arts-as-part-of-public-service-restructure-609366">this Feburary</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1265439990831407104"}"></div></p>
<p>Will these “experienced assessors” have any artform knowledge or experience, or simply be experienced in assessing grants?</p>
<p>The document states the government assessment officials are allowed to consult more widely, including with the Australia Council or State government entities – but this does not imply any peers will be involved in the process.</p>
<p>Further, the officials will only be making “recommendations”, and the minister “decides which grants to approve.”</p>
<p>The arts have an uneasy recent history with arts ministers deciding funding. </p>
<p>In 2015, then minister George Brandis reallocated <a href="https://www.theguardian.com/culture/2015/jul/04/australias-arts-funding-crisis-george-brandis-one-man-show">A$104.7 million</a> from the Australia Council’s funding to fund his own scheme for “excellence”, later named Catalyst. </p>
<p>This did not end well for either the minister or the arts. Brandis <a href="https://www.smh.com.au/politics/federal/turnbull-government-overhauls-george-brandis-arts-slush-fund-20151119-gl35nc.html">lost his job</a> under a new prime minister and Catalyst <a href="https://theconversation.com/after-the-catalyst-arts-funding-mess-many-questions-remain-74848">was retired</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/after-the-catalyst-arts-funding-mess-many-questions-remain-74848">After the Catalyst arts funding mess, many questions remain</a>
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</em>
</p>
<hr>
<p>The Australia Council <a href="https://theconversation.com/after-the-catalyst-arts-funding-mess-many-questions-remain-74848">never returned</a> to its pre-Brandis funding allocation.</p>
<p>In New South Wales in 2018, the <a href="https://www.abc.net.au/news/2018-09-26/arts-groups-miss-out-as-minister-funds-special-project/10298452">ABC reported</a> the minister for the arts had interfered in the funding decision process, overruling recommendations and redirecting money to his own favoured projects. And in the lead up to the last NSW state election, more reporting found arts grants were <a href="https://www.abc.net.au/news/2019-03-14/nsw-ministers-accused-of-pork-barrelling-over-regional-arts-fund/10898154?nw=0">selectively targeted</a> to organisations in Coalition-held seats.</p>
<h2>Efficient, effective, economical and ethical</h2>
<p>The funding guidelines say projects must represent “value for relevant money”, defined as “an efficient, effective, economical and ethical use of public resources”.</p>
<p>What is “value for money” in the context of the arts? It could be the amount of money requested, the intent of the project, the quality of the people involved, the numbers in a potential audience, or the amount of money that may be earned.</p>
<p>How do you determine “efficiency”? Is a play with a cast of two deemed more “efficient” than a play with a cast of four? Or is a project more “efficient” if it involves no people at all and only involves technical effects? </p>
<p>Is performance “effective” if it can occur over several platforms – live, in audio and in video – and so it has a broader audience impact? Or perhaps that makes it “economical”.</p>
<p>The meaning of “effective” here could be that a performance moves one to tears or to laughter. It has an emotional “effect” on the audience. </p>
<p>The term “ethical” might suggest no animals are hurt during the production – or maybe it is just another way of describing high moral values.</p>
<h2>‘Contributing to government objectives’</h2>
<p>The conditions for funding note:</p>
<blockquote>
<p>Activities must demonstrate that there is a funding need, contribute to job creation, support Australian artists or performers (or their work), provide experiences to audiences, be of a nature that is likely to be popular with Australian audiences, and financial viability.</p>
</blockquote>
<p>These are all factors which are hard to argue in an arts grant proposal. There isn’t a formula for producing popular art.</p>
<p>Perhaps of most concern though is that any proposal should be “contributing to government objectives”.</p>
<p>Many arts projects are <a href="https://www.abc.net.au/news/2020-02-22/indigenous-australian-artist-vernon-ah-kee-the-island-exhibition/11985958">critical</a> of government objectives and policies. That is the nature of arts practice which takes a critical or different view of the world we live in. </p>
<p>This potential for public criticism by artists has a chequered recent history in Australia. In 2014, Brandis threatened to withdraw government funding from the Sydney Biennale for <a href="https://www.theguardian.com/world/2014/mar/13/george-brandis-threatens-sydney-biennale-transfield-blackballing">refusing sponsorship</a> from Transfield due to their work in immigration detention.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-should-value-the-biennale-protest-not-threaten-arts-funding-24333">We should value the Biennale protest, not threaten arts funding</a>
</strong>
</em>
</p>
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<h2>Welcome, with lingering concerns</h2>
<p>Given the impact of the pandemic, the arts in Australia are in a dire situation and the sector needs all the help it can get. But it is important the process for making decisions in arts funding is transparent, ethical, and not subject to any political preferencing or rorting. </p>
<p>While this package is welcome – if not long overdue – the selection criteria suggests an approach that does not serve arts practice well and in fact suggests that, once again, a minister for the arts is exercising his personal largesse and judgement.</p>
<p>The Brandis era resulted in a <a href="https://www.smh.com.au/entertainment/art-and-design/thousands-lodge-submissions-to-the-senate-inquiry-into-arts-cuts-20150721-gih4e7.html">senate inquiry</a>, a divided arts sector and a significant loss in arts funding. </p>
<p>Let’s hope history isn’t doomed to repeat.</p>
<hr>
<p><em>Correction: an earlier version of this article misnamed the refused sponsor of the 2014 Sydney Biennale, the sponsor was Transfield.</em></p><img src="https://counter.theconversation.com/content/145397/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo Caust has received funding from the Australia Council. She is a member of NAVA and the Arts Industry Council (SA).</span></em></p>After seven months of waiting for a support package, artists can finally apply for funding. But with ministerial sign-off, the guidelines don’t instil hope.Jo Caust, Associate Professor and Principal Fellow (Hon), School of Culture and Communication, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/893912017-12-19T10:45:32Z2017-12-19T10:45:32ZA reshuffle that’s come with plenty of pain and questionable gain<figure><img src="https://images.theconversation.com/files/199901/original/file-20171219-27544-13jdw2k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malcolm Turnbull pressed Attorney-General George Brandis to take the London high commissioner job.</span> <span class="attribution"><span class="source">AAP/Daniel Munoz</span></span></figcaption></figure><p>There is not a great deal to be said for Malcolm Turnbull’s reshuffle, and quite a lot to be said against it.</p>
<p>The immediate concentration has been on the angst it’s caused – and that is due to Deputy Prime Minister Barnaby Joyce, who has the right to nominate his party’s ministers.</p>
<p>Joyce’s decision to axe Victorian National Darren Chester from his cabinet line-up in favour of a first-term Queenslander, David Littleproud, trashes the notion of merit and calls into question the Nationals leader’s judgement, to say nothing of his loyalty to colleagues.</p>
<p>A competent minister who came through as a measured voice for the Nationals when Joyce was away on his byelection trail, Chester has been unceremoniously pushed out on the ground that his retention would make for one Victorian National too many in the cabinet.</p>
<p>To an extent, Chester invited his own execution. He successfully advocated fellow Victorian Bridget McKenzie for deputy leader, believing – as he put it after his demotion – that “our party needs to connect more with younger voters, with female voters, and Bridget speaks in a way on issues that perhaps not all National Party members speak about”.</p>
<p>Joyce would have preferred Queensland senator and fellow cabinet member Matt Canavan as deputy, although sources say he didn’t canvass in the contest. Joyce and Canavan are close – Canavan previously was his chief-of-staff. Canavan is also deeply conservative on social issues, and he and Chester were on opposite sides of the marriage debate.</p>
<p>Only Joyce can know whether these factors counted against Chester as well as his being from Victoria – he’s certainly not going to admit they did.</p>
<p>If Joyce wanted to deal with his Victorian excess in a much less disruptive way he could have swapped Chester with Michael McCormack. McCormack is a member of the outer ministry and from New South Wales, as was Fiona Nash, the previous Nationals deputy who was turfed from parliament by the High Court. That would have retained the old state balances.</p>
<p>But Joyce felt he had a Queensland problem – the Nationals from the north have been vociferous about wanting to boost their presence in the higher reaches of the government.</p>
<p>The intention was to demote Chester to an assistant ministry, opening a vacancy for him by sacking Queenslander Keith Pitt, with whom Joyce doesn’t get on.</p>
<p>But Chester declined the assistant minister offer. Meanwhile, Pitt – who believed he should be promoted – was furious. When an assistant ministry was offered back to him, he said no. The position went to Damian Drum – a Victorian.</p>
<p>Littleproud, who holds the outback Queensland seat of Maranoa, is spoken well of as a future talent. But he’s been in Canberra for the parliamentary equivalent of five minutes, and has had no frontbench role before now.</p>
<p>A cabinet minister has not just their own portfolio to think about, but they need to be strong contributors across government, which requires time to acquire skills and knowledge. Disgruntled Nationals say Pitt would have been a more obvious choice if it hadn’t been for the serious personality clash between Joyce and him.</p>
<p>So Joyce can boast that he has delivered a Queensland National into cabinet, but the cost has been creating resentment in his ranks and a bad vibe around the reshuffle generally. Turnbull appeared dismayed, distancing himself from the decision, describing Chester as an “outstanding” minister, and regretting his loss.</p>
<p>It is not just the axing of Chester that is a problem in this reshuffle.</p>
<p>Turnbull pressed Attorney-General George Brandis to take the London high commissioner job, despite Brandis recently warning Turnbull that his departure would diminish the Liberal voice from Brisbane. As it happens, Brandis’ Liberal replacement in cabinet, John McVeigh, represents Groom, based on Toowoomba.</p>
<p>Losing Brandis from cabinet will also weaken the voice of the moderates at the senior level of the government.</p>
<p>It will likely mean there will be less of a check on Peter Dutton and his new home affairs super-portfolio.</p>
<p>Incoming attorney-general Christian Porter has plenty of qualifications for the job – he was attorney-general in Western Australia. But he will probably be less inclined to be a tough watchdog on home affairs and its highly assertive minister than Brandis would have been.</p>
<p>The move is a prestigious one for Porter. But for a man who has been seen as a possible future leadership contender, it is one that takes him into something of a political cul-de-sac. It is not a portfolio that gives its occupant the exposure or sort of experience useful for climbing the greasy pole.</p>
<p>Brandis’ replacement as Senate leader, Mathias Cormann, is one of the most competent ministers, and a skilled negotiator with the crossbench. He will do a good job.</p>
<p>Michaelia Cash, who has been under criticism for the way she and her office handled what was a political pursuit of Bill Shorten’s union past, has been given expanded responsibilities.</p>
<p>Several changes are deck-shuffling, or unremarkable steps up.</p>
<p>And notably, the reshuffle has not increased the number of women in cabinet. All that’s happened on this front is one woman Nationals deputy has slid into the place of another.</p><img src="https://counter.theconversation.com/content/89391/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>There is not a great deal to be said for Malcolm Turnbull’s reshuffle, and quite a lot to be said against it.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/875942017-12-07T22:49:12Z2017-12-07T22:49:12ZFrom postal survey to parliament: how Australia legalised same-sex marriage<figure><img src="https://images.theconversation.com/files/198124/original/file-20171207-28939-uvvxmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Just four lower house MPs voted against legalising same-sex marriage.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Australian parliament has <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1099">passed legislation</a> to permit same-sex marriage. </p>
<p>The Marriage Amendment (Definition and Religious Freedoms) Bill <a href="https://theconversation.com/marriage-bill-clears-senate-now-for-the-lower-house-88311">passed the Senate</a> on November 28. It was then passed in the House of Representatives on Thursday by an <a href="http://www.smh.com.au/federal-politics/political-news/samesex-marriage-legalised-in-australia-as-parliament-passes-historic-law-20171206-h00cdj.html">overwhelming majority</a>: around 130 MPs voted in favour, just four voted against, and a small number abstained.</p>
<p>To confirm the new statute as law, it <a href="https://twitter.com/SkyNewsAust/status/938891852048199681">went to the governor-general</a> for royal assent. This formality made the bill an <a href="https://www.peo.gov.au/learning/fact-sheets/making-a-law.html">act of parliament</a>.</p>
<p>Attorney-General George Brandis has said that same-sex marriages will be permitted <a href="http://www.abc.net.au/news/2017-12-08/same-sex-marriage-legal-after-gg-approval/9239334">from January 9</a>, taking into account the one-month notice period required under the Marriage Act.</p>
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<p><em><strong>Further reading: <a href="https://theconversation.com/flood-of-same-sex-weddings-in-january-after-historic-parliamentary-vote-88785">Flood of same-sex weddings in January, after historic parliamentary vote</a></strong></em></p>
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<h2>Origins of the reform</h2>
<p>Thursday’s lower house vote followed a drawn-out debate in parliament. But prior to the bill being introduced to parliament, the government arranged for the Australian Bureau of Statistics to conduct the Australian Marriage Law Postal Survey.</p>
<p>This voluntary, non-binding expression of opinion came at a cost of around A$100 million. The survey results, released on November 15, <a href="https://marriagesurvey.abs.gov.au/">showed 61.6%</a> of respondents supported changing the law to allow same-sex marriage.</p>
<p>That evening, Brandis moved a <a href="http://www.abc.net.au/news/2017-11-15/same-sex-marriage-bill-dean-smith-introduced/9153918">private member’s bill</a> in the Senate to begin the necessary legislative reform. </p>
<p>Liberal senator <a href="http://www.abc.net.au/news/2017-11-15/dean-smith-introduces-same-sex-marriage-legislation/9154328">Dean Smith</a> was the key proponent of this <a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s1099_third-senate/toc_pdf/1725720.pdf;fileType=application%2Fpdf">bill</a>. It emerged from a cross-party <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Same_Sex_Marriage/SameSexMarriage/Report">Senate inquiry</a> which concluded that legislation to permit same-sex marriage should also ensure some protection for religious freedoms. </p>
<h2>The substance of the act</h2>
<p>The new law changes the definition of marriage in the <a href="https://www.legislation.gov.au/Details/C2016C00938">Marriage Act</a> by removing the words “a man and a woman” and replacing them with “2 people”. This was the minimum required reform to enable same-sex marriage.</p>
<p>However, the bill goes beyond that minimalist change. It will insert a section into the act that reads:</p>
<blockquote>
<p>It is an object of this act to create a legal framework:</p>
<p>a) to allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and</p>
<p>b) to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; and</p>
<p>c) to allow equal access to marriage while protecting religious freedom in relation to marriage.</p>
</blockquote>
<p>There are three main features of the marriage reform law that attempt to balance marriage equality with religious freedoms. </p>
<p>First, some gain the capacity to be identified as “religious marriage celebrants”. To meet this definition, a person must be both a registered marriage celebrant and a minister of religion. This category covers people who are not ministers of religion of a recognised denomination, but regardless identify as ministers of religion. </p>
<p>An exceptional case is also permitted for people to identify as religious marriage celebrants even if they are not ministers of religion. The criteria for this case require a person to:</p>
<ul>
<li><p>be already registered as a marriage celebrant;</p></li>
<li><p>give notice within 90 days of the new law’s assent that they wish to be identified as a religious marriage celebrant;</p></li>
<li><p>confirm that this wish is based on their religious beliefs. </p></li>
</ul>
<p>Second, the law sets out circumstances in which ministers of religion and religious marriage celebrants can refuse to solemnise marriages. Although the grounds for refusal are not limited to same-sex marriages, these provisions have been included in the bill so that ministers and religious celebrants cannot be required to solemnise same-sex marriages. </p>
<p>Ministers of religion may refuse to solemnise a marriage where any of the following conditions apply: </p>
<blockquote>
<p>a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;</p>
<p>b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;</p>
<p>c) the minister’s religious beliefs do not allow the minister to solemnise the marriage.</p>
</blockquote>
<p>Religious marriage celebrants may refuse to solemnise a marriage “if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage”.</p>
<p>There is a parallel exception for armed forces officers who are authorised to conduct marriage ceremonies. </p>
<p>Third, the law permits bodies established for religious purposes to refuse to make facilities available or provide goods and services in relation to the solemnisation of marriages. The circumstances in which this applies are if the refusal: </p>
<blockquote>
<p>a) conforms to the doctrines, tenets or beliefs of the religion of the body; or </p>
<p>b) is necessary to avoid injury to the religious susceptibilities of
adherents of that religion.</p>
</blockquote>
<p>So, for example, a same-sex couple could be refused the use of a church or church hall for their wedding ceremony, if that refusal meets the above conditions.</p>
<p>The marriage reform law also makes amendments to the <a href="https://www.legislation.gov.au/Details/C2014C00002">Sex Discrimination Act</a>. These changes ensure that no complaints of unlawful discrimination can be made in relation to refusals to solemnise marriages that are permitted under the Marriage Act. </p>
<h2>Amendments defeated</h2>
<p>Soon after the survey results were announced, Treasurer Scott Morrison <a href="http://www.abc.net.au/news/2017-11-19/split-in-turnbull-government-over-religious-amendments-to-ssm-l/9166360?pfmredir=sm&sf173655147=1&smid=Page">said</a> that more than 4 million “no” voters were coming to terms with being a minority on the question of same-sex marriage. But, as parliament has recognised, a law serving all Australians did not require elevating the rights of a minority over the rights of all. </p>
<p>A state-recognised institution – marriage – was closed to some members of the population on discriminatory grounds. In attending to that problem, there was <a href="http://www.huffingtonpost.com.au/anja-hilkemeijer/paterson-s-quest-to-water-down-marriage-equality-is-not-dead-yet_a_23278822/">no sense</a> in arguing for multiple new forms of discrimination.</p>
<p>It was fortunate that parliament had a well-established bill to consider following the postal survey outcome. This meant that various amendments seeking to extend “protections” for religious freedom did not gain majority support, because most MPs were already satisfied with the Smith bill. </p>
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<p><em><strong>Further reading: <a href="https://theconversation.com/labor-is-right-to-block-religious-freedom-amendments-to-protect-same-sex-marriage-bill-88235">Labor is right to block ‘religious freedom’ amendments to protect same-sex marriage bill</a></strong></em></p>
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<p>As it is, the new law already goes well beyond what was necessary to permit same-sex marriage. It <a href="https://theconversation.com/as-australians-say-yes-to-marriage-equality-the-legal-stoush-over-human-rights-takes-centre-stage-87337">would have been unconscionable</a> to amend the bill in ways that privileged religious freedom over rights to equality and non-discrimination. </p>
<p>Nevertheless, the debate about the protection of religious freedom will persist. Prior to the passage of the marriage reform bill, Prime Minister Malcolm Turnbull <a href="https://theconversation.com/protecting-religious-freedoms-is-a-matter-of-balance-says-head-of-turnbulls-inquiry-87933">announced an inquiry</a> into “religious freedom protection in Australia”. Chaired by former MP Philip Ruddock, the inquiry is due to report by March 31 next year. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"938668660469612544"}"></div></p><img src="https://counter.theconversation.com/content/87594/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a Co-Chair of the Indigenous Rights Subcommittee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p>The drawn-out process of Australia legalising marriage equality has finally come to a close, with a bill passing the lower house by an overwhelming majority on Thursday.Amy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/886412017-12-06T01:03:47Z2017-12-06T01:03:47ZGreen groups and charities could be collateral damage in government’s foreign donation ban<p>The federal government is seeking to introduce sweeping new laws that would outlaw foreign donations to political parties and compel lobbyists for foreign powers to register themselves. </p>
<p>The new rules would also significantly impede some mainstream charities and environment groups that receive overseas funding – if their work is deemed to be political in nature. </p>
<p>The <a href="https://www.pm.gov.au/media/protecting-australia-foreign-interference">proposed amendment</a> to the existing Commonwealth Electoral Act will see to prohibit foreign-sourced donations of more than A$1000 to a political party or campaign group. </p>
<p>Controversially, the government is <a href="http://www.smh.com.au/federal-politics/political-news/chilling-effect-charities-slam-foreign-donations-ban-20171205-gzyyc0.html">expected</a> to expand an already broad definition of “political party” which is likely include interest and advocacy groups that spend significant amounts of money in seeking to influence voters.</p>
<h2>Political campaigners targeted</h2>
<p>The new laws have been justified in response to public concerns about large foreign donations on Australian political parties and candidates, and to bring Australia into line with international best practice.</p>
<p>They follow a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/2016Election/Report">2016 Parliamentary Commission Report</a>, which noted that 68% of OECD countries have banned donations from foreign interests to political parties.</p>
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<a href="https://theconversation.com/turnbull-government-must-find-a-way-to-rid-australia-of-foreign-donations-79562">Turnbull government must find a way to rid Australia of foreign donations</a>
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<p>The report argued that the public needs to be confident that electoral donations are regulated effectively, through timely and accessible disclosure of donations and visible compliance by political actors. </p>
<p>Furthermore, the existing Electoral Act fails to distinguish between Australian and foreign donors, and fails to provide any requirement for the donor to state whether they are an Australian citizen. </p>
<p>In contrast, the <a href="https://www.fara.gov">US Foreign Agents Registration Act</a>, implemented in 1938, requires people acting as agents of foreign principals in either a political or quasi-political capacity to disclose their relationship with the foreign principal. They must also declare their activities, receipts and spending. The penalty for a breach ranges from US$5,000 to five years in jail.</p>
<p>In <a href="http://www.smh.com.au/federal-politics/political-news/foreign-spies-lobbyists-and-donations-targeted-in-new-interference-laws-20171114-gzkzzu.html">outlining</a> the proposed laws, the Attorney-General George Brandis noted that political donations will be banned from foreign bank accounts, non-citizens and foreign entities. Acting covertly on behalf of a foreign actor in a manner that harms Australia’s national security or that seeks to influence a government decision or a political process will be criminalised. </p>
<p>From this perspective, one of the primary rationales for the implementation of the new law is to prevent inappropriate foreign interference in Australia’s democratic process. As <a href="http://www.ibtimes.com.au/turnbull-unveils-anti-espionage-laws-what-it-means-australian-politics-businesses-organisations">outlined by Finance Minister Mathias Cormann</a>, the new laws mean that only Australian organisations and businesses can influence elections in Australia through donations. </p>
<h2>Green groups “devastated”</h2>
<p>However, one potential knock-on effect of the proposed laws is the indirect impact they are likely to have on environmental and charitable organisations. Many of these groups will come within the expanded definition of political campaigners, given their advocacy for social and environmental causes. </p>
<p>But many of these groups have a global, as well as domestic, focus. For example, the mandate of Australian environment groups necessarily includes encouraging Australia to meet its international climate commitments. </p>
<p>It is not unusual for donations to Australian environmental groups to come from international philanthropic sources, given the fact that climate change is a profound global concern. This crucial funding would be illegal under the proposed laws.</p>
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<a href="https://theconversation.com/why-are-we-still-pursuing-the-adani-carmichael-mine-85100">Why are we still pursuing the Adani Carmichael mine?</a>
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<p>As such, international donations that help Australian environmental groups to challenge development and progression of projects such as the <a href="https://theconversation.com/infographic-heres-exactly-what-adanis-carmichael-mine-means-for-queensland-87684">Adani Carmichael Coalmine</a> would potentially be illegal. This will make it much harder for environmental groups to continue their valuable public benefit activities. </p>
<p>The government has stated that environmental organisations will be exempted from the foreign donation ban, but only in cases where the donations are for non-political activities. This excludes many important social and environmental activities these groups were established to pursue. </p>
<p>Environmental and charitable organisations are reportedly <a href="http://www.smh.com.au/federal-politics/political-news/chilling-effect-charities-slam-foreign-donations-ban-20171205-gzyyc0.html">devastated</a> at the potential implications.</p>
<p><a href="http://www.communitycouncil.com.au">Communities Council for Australia</a> chief executive David Crosbie said that similar laws in the UK and Canada have had a “chilling effect” on the capacity of charitable organisations to act on behalf of communities. </p>
<p>The <a href="https://acfid.asn.au">Australian Council for International Development</a> (Acfid), the peak body of Australia’s international development and aid charities, recently passed a <a href="https://www.theguardian.com/australia-news/2017/nov/01/charities-fight-coalitions-attempt-to-limit-advocacy">unanimous motion</a> calling upon the government to exempt charities from the foreign donation ban. </p>
<p>In a <a href="https://acfid.asn.au/sites/site.acfid/files/resource_document/Charities%20and%20International%20Philanthropy%20Position%20Paper%20v1.0%20Aug2017.pdf">submission paper</a> issued in August this year, Acfid argued that all charities should be entitled to receive international philanthropic aid. They argued this based on the sectors vital importance to high public value charitable work in diverse fields including indigenous advancement, marine conservation, education and poverty alleviation.</p>
<h2>Environmental and charity work transcends domestic borders</h2>
<p>The work of environmental groups and charities is clearly in the public interest. Australians both want and expect these groups to have the financial capacity to continue this advocacy in order to represent those who do not have the capacity to influence policies. </p>
<p>This mandate is crucial in a robust democracy. It is also vital for the global community, as issues such as climate change transcend strict domestic perspectives.</p>
<p>The government is acting opportunistically by using the regulation of foreign electoral donations, a matter of national significance, to effectively nobble the funding sources and activities of vital Australian environmental and charitable organisations.</p><img src="https://counter.theconversation.com/content/88641/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samantha Hepburn 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>The new foreign donations laws announced this week will potentially stifle the work of foreign funded charities and environment groups working in Australia.Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/882352017-11-28T01:32:54Z2017-11-28T01:32:54ZLabor is right to block ‘religious freedom’ amendments to protect same-sex marriage bill<figure><img src="https://images.theconversation.com/files/196599/original/file-20171128-2077-jmwn5n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Labor has announced it will vote down all amendments to Dean Smith's same-sex marriage bill, including those proposed by George Brandis.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>The federal Labor caucus has agreed to <a href="https://www.theguardian.com/australia-news/live/2017/nov/28/banking-inquiry-looks-certain-as-nationals-break-ranks-politics-live?page=with:block-5a1c9e5e7e54bf066ccdce49#block-5a1c9e5e7e54bf066ccdce49">vote collectively</a> to defeat all substantive amendments proposed to Liberal senator Dean Smith’s <a href="https://www.theguardian.com/australia-news/2017/nov/28/labor-to-vote-against-amendments-to-same-sex-marriage-bill?CMP=soc_567">same-sex marriage bill</a>.</p>
<p>Labor’s move makes redundant the amendments proposed by <a href="http://www.sbs.com.au/news/article/2017/11/28/conservatives-prepare-same-sex-marriage-amendments">conservatives</a> and the <a href="https://www.theguardian.com/australia-news/2017/nov/27/labor-pours-cold-water-on-greens-amendments-to-same-sex-marriage-bill">Greens</a>. Substantive amendments to add additional “protections” for religious freedom into the bill <a href="https://www.theguardian.com/australia-news/2017/nov/27/marriage-equality-coalition-conservatives-chances-fade-before-senate-debate">could only pass</a> with the support of about six Labor senators. </p>
<p>An examination of yesterday’s proposed amendment from Attorney-General George Brandis demonstrates why today’s outcome should be welcomed.</p>
<h2>The Brandis amendment – a green light for discrimination</h2>
<p>During yesterday’s debate, Brandis tabled an <a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/amend/s1099_amend_83314c3d-1495-48b8-85da-6f1236281dce/upload_pdf/8333%20CW%20Marriage%20Amendment%20(Definition%20and%20Religious%20Freedoms)%20Bill%202017%20Brandis.pdf;fileType=application%2Fpdf">amendment</a> to incorporate an absolute right to religious freedom into Australian law. This amendment would have added to the marriage reform bill an element of the right to freedom of religion:</p>
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<p>Nothing in this act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching.</p>
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<p>This proposed provision is drawn from <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx">Article 18(1)</a> of the International Covenant on Civil and Political Rights (ICCPR).</p>
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Read more:
<a href="https://theconversation.com/as-australians-say-yes-to-marriage-equality-the-legal-stoush-over-human-rights-takes-centre-stage-87337">As Australians say 'yes' to marriage equality, the legal stoush over human rights takes centre stage</a>
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<p>Enacting this provision into legislation would turn a limited right to freedom of religion under international law into an absolute right under Australian law. Notably, the proposal omits the content of Article 18(3) of the ICCPR:</p>
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<p>Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.</p>
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<p>The limitation on freedom of religion expressed in Article 18(3) is an essential check on the capacity of one human right to disproportionately limit the exercise of other rights. </p>
<p>In the context of marriage reform, any concessions for freedom of religion must be <a href="https://theconversation.com/as-australians-say-yes-to-marriage-equality-the-legal-stoush-over-human-rights-takes-centre-stage-87337">balanced</a> against rights to equality and nondiscrimination. </p>
<p>This understanding of the need to balance rights claims has influenced courts in Australia and overseas. Efforts to discriminate against same-sex couples on the basis of religious belief – for example in the provision of <a href="http://www.bailii.org/uk/cases/UKSC/2013/73.html">accommodation</a> or other services – have been ruled invalid.</p>
<p>The Brandis amendment could have permitted divisive litigation initiated by opponents of same-sex marriage. Previous such actions overseas have seen conservative Christians arguing that providing <a href="http://www.bailii.org/uk/cases/UKET/2017/2302433_2016_Full.pdf">adoption</a> and <a href="http://www.bailii.org/uk/cases/UKSC/2013/73.html">accommodation services</a> to same-sex couples or selling <a href="http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2016/%5B2016%5D%20NICA%2039/j_j_MOR10086Final.htm">cakes</a> and <a href="https://www.cbsnews.com/news/washington-supreme-court-florist-same-sex-wedding-case/">flowers</a> for same-sex weddings interferes with their free practice of religion. </p>
<p>The justification for such arguments is that discrimination in the provision of goods and services should be permissible <a href="https://freedomforfaith.org.au/library/not-even-in-america-fighting-for-religious-freedom-in-australia">to avoid complicity</a> in something that, according to their faith, is “sinful”.</p>
<h2>Freedom of religion as a legislative Trojan horse</h2>
<p>Passage of the Brandis amendment would support an argument that freedom to discriminate on the basis of belief is absolute. This could easily extend from the commercial sector to the welfare sector, and create new instances of discrimination in relation to same-sex family relationships. </p>
<p>The Trojan horse effect of the proposal is amplified by the increasingly wide interpretation of the words “worship, observance, practice and teaching” among conservative Christians. In this conception, faith extends to every aspect of a person’s life, including their dealings with others in the public sphere.</p>
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Read more:
<a href="https://theconversation.com/going-overboard-on-religious-protections-could-come-back-to-bite-in-multicultural-australia-87741">Going overboard on religious protections could come back to bite in multicultural Australia</a>
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<p>This is at odds with religious freedom under international law. The right to religious freedom does not protect every act <a href="http://www.bailii.org/eu/cases/ECHR/2013/37.html">inspired or motivated</a> by a belief. Instead, there must be an <a href="http://www.bailii.org/uk/cases/UKHL/2005/15.html">“intimate link”</a> between the action taken and the belief.</p>
<p>In practice, a refusal to sell cakes or provide other services would not fit within this restricted protection. </p>
<p>Brandis’ suggestion that his proposed amendment is a mere “declaratory statement” is misleading. The right to religion, like most other rights, is not protected by Australian legislation. </p>
<p>Australia has an international obligation to protect the full range of human rights. However, most of these are not implemented in Australian law. Some human rights protection is offered under the <a href="https://www.alrc.gov.au/publications/freedoms-alrc129">common law</a>. But this is subject to contrary legislation. </p>
<p>Since freedom of religion is currently not legislated for in Australia, the Brandis amendment is not declaratory at all. Rather, it would convert a common law right into a statutory one. This would privilege religious freedom over other rights. </p>
<p>Freedom of religion is a shield to protect religious minorities from discrimination. It is not, and never has been, a sword to justify discrimination against others. </p>
<h2>Next steps for marriage equality and religious freedom</h2>
<p>The likely passage of the Smith bill, unamended, does not end discussion of how marriage equality and religious freedom will interact under Australian law. Conservatives will maintain this debate in coming months as the government’s <a href="https://www.pm.gov.au/media/ruddock-examine-religious-freedom-protection-australia">panel</a> on religious freedom commences its work. </p>
<p>At the same time, a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/Freedomofreligion">parliamentary committee</a> is due to report. It has examined freedom of religion issues for the past year. The chair of that committee, senator David Fawcett, has indicated a likely recommendation for <a href="https://www.theguardian.com/australia-news/2017/nov/15/religious-protection-fight-looms-over-same-sex-marriage-bill">positive protection</a> of religious freedom.</p>
<p>The marriage reform bill is not the only element of this process that will require continued human rights scrutiny. As shown above, partial implementation of religious freedom makes no sense in the context of international law. </p>
<p>Australia seems set for a debate about the domestic protection of human rights. The appropriate way to achieve this is to incorporate the full range of Australia’s obligations. Rights claims may then be assessed in balance with each other.</p><img src="https://counter.theconversation.com/content/88235/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a Co-Chair of the Indigenous Rights Subcommittee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p><p class="fine-print"><em><span>Anja Hilkemeijer 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>Labor has announced it will not support any amendments to the Dean Smith same-sex marriage bill, including an amendment proposed by George Brandis. Here’s why it is right to do so.Anja Hilkemeijer, Lecturer in Law, University of TasmaniaAmy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/859942017-10-23T04:58:48Z2017-10-23T04:58:48ZSenate crossbenchers take the first steps on lobbying reform – now to ensure it succeeds<figure><img src="https://images.theconversation.com/files/191288/original/file-20171022-13961-1w88rqr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jacqui Lambie has released a policy on lobbying that has become the starting point for negotiations on the issue.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>The suite of codes, statements and laws governing lobbying are failing Australian voters. Yet, for decades, the two major parties have been unwilling to meaningfully improve them.</p>
<p>But, having recognised the seriousness of the problems with lobbying and corruption in Australia, <a href="http://www.smh.com.au/federal-politics/political-news/crossbench-senators-consider-throwing-a-spanner-in-lobbying-revolving-door-20171013-gz0pk4.html">the Senate crossbenchers</a> – along with <a href="http://www.cathymcgowan.com.au/time_to_restore_trust_support_for_lobbyist_reforms">lower house independents</a> – have finally begun the process of deciding how lobbying reform should occur.</p>
<p>Into this space, the Jacqui Lambie Network has released <a href="https://d3n8a8pro7vhmx.cloudfront.net/lambienetwork/pages/41/attachments/original/1508277821/Cleaning_Up_Canberra.pdf?1508277821">a policy</a> that has become the <a href="http://www.theage.com.au/comment/australias-unrestricted-political-lobbyists-20171018-gz3ajg">starting point for negotiations</a> on one of Australia’s most important policy challenges.</p>
<h2>A ‘federal ICAC’?</h2>
<p><a href="http://www.smh.com.au/federal-politics/political-news/bill-shorten-throws-support-behind-federal-icac-following-sussan-ley-scandal-20170116-gts397.html">Labor</a> and the <a href="https://www.aph.gov.au/DocumentStore.ashx?id=5e2f2fa5-2d64-411f-b6a3-798c4a8867c5&subId=412992">trade unions</a> have signalled a willingness to tackle lobbying at some point. However, there are meaningful obstacles to the crossbench’s current plan.</p>
<p>Given its control of the lower house, the Coalition would need to be brought on side for legislation to pass anytime soon. However, citing Australia’s performance on Transparency International’s corruption index, Attorney-General George Brandis <a href="https://www.aph.gov.au/DocumentStore.ashx?id=f8267077-982e-4a53-b1cf-fdd1346f541f&subId=412861">is against</a> a federal regulator to police anti-corruption. </p>
<p>Similarly, the Institute of Public Affairs – a Liberal Party ideological ally – rejects the idea because such an agency <a href="https://www.aph.gov.au/DocumentStore.ashx?id=99716645-081d-4037-992f-82c7df9cfb28&subId=412814">might abuse its power</a>.</p>
<p>However, the crossbench has been more impressed by New South Wales’ <a href="https://www.icac.nsw.gov.au">Independent Commission Against Corruption</a> (ICAC), where the true “abuses of power” have been those <a href="http://www.smh.com.au/nsw/eddie-obeid-loses-appeal-over-misconduct-conviction-20170912-gyg9wd.html">uncovered by the commission</a>.</p>
<h2>Enter the crossbench</h2>
<p>Given the resistance from the Coalition, hope for changes to lobbying laws currently rest with the Senate crossbench and the lower house independents. They are negotiating a unified policy based on Lambie’s proposal.</p>
<p>The policy acknowledges that new lobbying laws need to be legislated; have meaningful enforcement provisions (including the possibility of fines or imprisonment for serious offences; and have an independent regulator to oversee them. </p>
<p>Having an independent regulator is critical. As it stands, when a minister leaves office, their eligibility to work as a lobbyist, and whether they have breached any lobbying regulations, <a href="https://www.theguardian.com/australia-news/2016/sep/27/ian-macfarlane-says-he-cleared-new-mining-industry-job-with-pms-office">is determined by</a> those who directly work with – or for – the prime minister.</p>
<p>The problems of the revolving door <a href="https://theconversation.com/the-revolving-door-why-politicians-become-lobbyists-and-lobbyists-become-politicians-64237">are significant, and growing</a>. It is now commonplace for former ministers to go on to work for companies directly related to their former portfolios – be it on their boards or as lobbyists. </p>
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<p><em><strong>Further reading: <a href="https://theconversation.com/the-revolving-door-why-politicians-become-lobbyists-and-lobbyists-become-politicians-64237">The revolving door: why politicians become lobbyists, and lobbyists become politicians</a></strong></em></p>
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<p>This creates a clear conflict of interest for those ministers when they are in power. Their decisions while in power have the potential to affect the possibility of a job when they leave office. It also allows them far greater access to, and creates conflicts of interest for, the government decision-makers they meet. These are people they often worked with, for, or above.</p>
<p>As a result, Lambie’s plan would ban ministers and senior public servants from taking up lobbying positions within five years of leaving office. This is increased from the current, poorly-enforced 18-month ban.</p>
<p>This move would bring Australia’s prohibition on post-separation employment in line with <a href="https://lobbycanada.gc.ca/eic/site/012.nsf/eng/h_00008.html">Canada</a> and the <a href="https://www.whitehouse.gov/the-press-office/2017/01/28/executive-order-ethics-commitments-executive-branch-appointees">US</a>. Extending the exemption period of post-separation employment, and having an independent regulator to oversee it, would mean the potential for the aforementioned conflicts of interest and advantageous access are reduced.</p>
<p>Beyond the revolving door provisions, Lambie’s plan centres around the ideal of “levelling the playing field” for interest groups. This in turn is based on the problems that arise when some get <a href="http://transparencyinternational.eu.s3-website-eu-west-1.amazonaws.com/wp-content/uploads/2015/04/Lobbying_web.pdf">better access than others</a>. </p>
<p>As such, Lambie’s plan borrows <a href="https://theconversation.com/australias-lobbying-laws-are-inadequate-but-other-countries-are-getting-it-right-78550">heavily from the overseas examples</a>. It calls for more transparency in lobbying, incentives to join a register of lobbyists, and expanding the definition of “lobbyists” to include those who operate in-house (Australia’s register currently only captures third-party lobbyists).</p>
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<p><em><strong>Further reading: <a href="https://theconversation.com/australias-lobbying-laws-are-inadequate-but-other-countries-are-getting-it-right-78550">Australia’s lobbying laws are inadequate, but other countries are getting it right</a></strong></em></p>
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<p>These goals may be in-part fulfilled by changing the access rules to the highly desired “orange passes” of Parliament House. Under Lambie’s plan, lobbyists are given incentives to join the register for better access to parliamentary offices. </p>
<p>This is an interesting idea, and is focused more on reward than punishment. If coupled with other monitoring conditions, it may improve the transparency of lobbying in Canberra – if only by increasing the likelihood that lobbyists will join the register.</p>
<p>The orange pass concept would be augmented by an expansion of the definition of “lobbyist” to include those who directly represent their organisation, regardless of what it does. This would mean the professional representatives of unions and not-for-profit organisations are treated the same as those from corporations.</p>
<h2>At stake: our democracy</h2>
<p>Ideally, a representative democracy supports “good lobbying”, where individuals and groups present their ideas, needs and wants on a level playing field. But the status quo in Australia acts to undermine this ideal.</p>
<p>While its benefits are clear, democracy is a fragile system. Its strength is fundamentally reliant on institutional and legal supports, as well as an engaged and informed electorate.</p>
<p>This is where “bad lobbying” presents a significant threat: it uses weak laws and institutions to create an unfair playing field for a few to the detriment of the many, and undermines trust in the system. </p>
<p>In turn, the electorate becomes cynical and disengaged. Democracy collapses when bad lobbying takes hold, and Australia’s bad lobbying has been steadily getting worse – and more pervasive.</p>
<p>In that critical sense, giving Australia’s lobbying laws teeth, and a sizeable regulatory jaw to occasionally brandish them, is a major step in the right direction.</p><img src="https://counter.theconversation.com/content/85994/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>George Rennie has played an unpaid advisory role to Senator Lambie's office on its lobbying policy. He is otherwise politically unaffiliated.</span></em></p>Giving Australia’s lobbying laws teeth, and a sizeable regulatory jaw to occasionally brandish them, is a major step in the right direction.George Rennie, Lecturer in American Politics and Lobbying Strategies, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/860092017-10-19T11:16:31Z2017-10-19T11:16:31ZGrattan on Friday: The rift between Brandis and Dutton deepens as the behemoth of Home Affairs rises<p>Immigration Minister Peter Dutton got a towelling from the Senate this week when he couldn’t reach a deal with the crossbench on his legislation to toughen requirements for people seeking Australian citizenship.</p>
<p>The bill was to impose a harder – many would say a ridiculously difficult – English test on those wanting to become Australians, and to require a longer waiting period.</p>
<p>The Senate gave Dutton a Wednesday night deadline to muster support or lose the bill from the notice paper. He offered some concessions but without success, and the bill dropped off – to return only if and when the numbers change. The minister says he’ll fight on.</p>
<p>Dutton had been sent a fresh message about the limits on his power. He doesn’t like such reminders. We know this from his attacks on court and tribunal rulings against his ministerial decisions, and his vitriol about lawyers who represent refugees and asylum seekers.</p>
<p>After he agreed with broadcaster <a href="http://www.2gb.com/podcast/peter-dutton-10/">Alan Jones</a> about the “un-Australian” behaviour of lawyers who frustrate government efforts to return people to Manus Island and Nauru following medical treatment, the ongoing deep rift between Dutton and Attorney-General George Brandis flared publicly earlier this month.</p>
<p>In a speech to the <a href="https://www.ibanet.org/Conferences/237358776.aspx">International Bar Association</a> Brandis said pointedly that “those who exercise executive power must always accept that they are subject to, and must always be respectful of, the supremacy of the law. And in that process, as the custodians of the rule of law, the role of lawyers is essential.”</p>
<p>Brandis didn’t name Dutton, but his target was clear.</p>
<p>Colleagues observe the palpable hostility between the two ministers, both from Queensland, as Brandis has recently been increasingly willing to assert small-l liberal positions (slapping down <a href="https://www.youtube.com/watch?v=XExggl6Q-vo">Pauline Hanson</a> and <a href="http://www.abc.net.au/news/2017-09-28/ssm-macklemore-nrl-grannd-final-abbott-brandis/8995490">Tony Abbott</a> as well as Dutton), and has in turn been the object of apparently antagonistic briefings to the tabloids.</p>
<p>As the new Home Affairs department that Dutton will head is being sewn together – including immigration and bringing under its umbrella ASIO, the Australian Federal Police, Border Force, the Criminal Intelligence Commission and AUSTRAC – it’s an open secret that Brandis (who loses ASIO but retains the power to sign its warrants), his department and some officials within the agencies are deeply apprehensive about it.</p>
<p>Some of their concerns may be reinforced by the picture painted a week ago by the new department’s secretary-designate, and current immigration secretary, Mike Pezzullo who, like Dutton, is seen as an empire builder who takes no prisoners.</p>
<p>Pezzullo, speaking to the Trans-Tasman Business Circle, spelled out Home Affairs’ “philosophical context”, and sent the message that it would be activist, intrusive (often secretly) and have long tentacles.</p>
<p>Pezzullo’s starting point was the “duality of good and evil” at the heart of globalisation.</p>
<p>On the “evil” side – the “dark universe” – “terror has become de-territorialised”, and global networks of crime and exploitation are becoming more apparent.</p>
<p>“There are global dark markets for hacking, money laundering, cryptocurrency movement, assumed identities for criminals, terrorists, child exploitation perpetrators and others,” he said.</p>
<p>In this context the security power, designed to protect the home front, “is being organised into a single enterprise to deal with the interconnected and globalised threats that we face at home”, in an era when “home” and “outside” blur.</p>
<p>“To protect and secure home, we have to be prepared to act globally and to develop networks with like-minded actors, including industry.”</p>
<p>The task requires wide and deep reach, with the department’s “facilitation” functions (migration, passenger services and the like) and security being the flip sides of the one coin.</p>
<p>“The state has to increasingly embed itself – not majestically, sitting at the apex of society dispensing justice – but the state has to embed itself invisibly into global networks and supply chains, and the virtual realm, in a seamless and largely invisible fashion, intervening on the basis of intelligence and risk settings. Increasingly, at super scale and at very high volumes,” Pezzullo said.</p>
<p>“Sometimes we’ll embed in a way that will be invisible to you [in business], because we’ll take data and we’ll put it with other data sources and then see, we’ll wash it and then we’ll come back with an intervention decision which might be ‘no one on that plane needs to be questioned’ or maybe ‘everyone does’, and you’ll go ‘yep, OK, whichever we have to do, we do’.”</p>
<p>The facilitation model requires “a public-private partnership model between Home Affairs and its component agencies and virtually every sector … whether it’s the banking system and talking to them about the active defence of their networks, whether it’s the infrastructure sector … utilities, power, water, etc, the air traffic control system,” he said.</p>
<p>“Home Affairs is going to be sort of the centre of excellence of figuring out how does Australia work. And we have to be careful about how we write this down, because when you then write the manual, how you take Australia down, there’ll be like one copy of that, and I’m not going to tell you where I’m going to keep that, because that’s going to be a very dangerous book!”</p>
<p>When the Home Affairs department was announced Malcolm Turnbull emphasised the checks on its power, which will be located especially in the attorney-general’s department.</p>
<p>But in government and administration, culture and attitudes can often be as important as formal restraints and oversight, and Pezzullo’s critics point to what happened to the culture after the integration of customs and immigration.</p>
<p>The old immigration department used to focus on the nation-building aspects of the people flow to Australia. Now, the dominant culture of the Immigration and Border Protection department is one focused on security, with a very disciplined, somewhat military overlay. </p>
<p>(Pezzullo has an intense interest in things military and was disappointed to miss out on the job of secretary of defence, for which he was well qualified, when it was recently up for grabs.)</p>
<p>As the Home Affairs behemoth looms, sharpening questions about what should be the limits on state intrusions, this week saw a paradoxical juxtaposition in relation to Australia’s role in and performance on human rights.</p>
<p>Australia <a href="http://www.un.org/apps/news/story.asp?NewsID=57901#.WeiMIROCzVo">was elected</a> to the United Nations Human Rights Council, a body to protect and promote human rights globally. At the same time, it was <a href="https://www.theguardian.com/australia-news/2017/oct/19/unacceptable-un-committee-damns-australias-record-on-human-rights">robustly criticised</a> by the UN Human Rights Committee, a group of experts monitoring implementation of the International Covenant on Civil and Political Rights.</p>
<p>As the year’s end approaches, the speculation continues to be strong that Brandis will depart parliament in Turnbull’s summer reshuffle. There is no doubt that Turnbull – who is thick as thieves with Dutton – wants him out, not least to promote Mathias Cormann to Senate leader and (probably) Christian Porter to attorney-general.</p>
<p>The exit of Brandis would be one less frustration for Dutton. It’s ironic, but true, that the man who was lambasted for asserting the right for people to be bigots is at present the strongest voice in the cabinet for the protections of the rule of law.</p>
<iframe src="https://www.podbean.com/media/player/k27zv-7889f2?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/86009/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>It’s ironic, but true, that the man who was lambasted for asserting the right for people to be bigots is at present the strongest voice in the cabinet for the protections of the rule of law.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/849092017-10-04T02:19:23Z2017-10-04T02:19:23ZFirst act of the family law review should be using research we already have<figure><img src="https://images.theconversation.com/files/188454/original/file-20171002-12163-ickjgv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We already have a great deal of high-quality information about what works, and what doesn't, in our family law system.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>On September 27, Attorney-General George Brandis <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2017/ThirdQuarter/First-comprehensive-review-of-the-family-law-act-27-September-2017.aspx">commissioned</a> the Australian Law Reform Commission (ALRC) to undertake what he described as “the first comprehensive review of the family law system” since the commencement of the <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/">Family Law Act</a> in January 1976. </p>
<p>The terms of reference are extremely wide-ranging. Producing a report by March 31, 2019, seems overly ambitious.</p>
<p>There has been universal support for such a review from key players in family law, as well as those more on the periphery such as politicians espousing party-dictated views or representing individual (usually aggrieved) constituents.</p>
<p>As much as such a review will serve a valuable purpose, it is important to remember that our family law system has not remained static for the last four decades. There have been numerous significant reforms not only to the statute itself, but to the operation of courts determining family law cases, and allied areas such as family dispute resolution and counselling.</p>
<p>The Family Law Act initially introduced several revolutionary changes. For example, it established the <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home">Family Court of Australia</a>; introduced <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/family-law-in-australia/no-fault-divorce/">“no-fault” divorce</a>; and totally revamped laws about determining children’s cases and property settlement.</p>
<p>It also set up a new system of alternative dispute resolution and established the <a href="https://aifs.gov.au/">Australian Institute of Family Studies</a> (AIFS) as a dedicated research body, along with the <a href="https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Pages/default.aspx">Family Law Council</a> (FLC) as a representative body to monitor and advise the federal government on operational and policy matters.</p>
<p>Since then, various aspects of our family law system have been examined and changed.</p>
<hr>
<p><em><strong>Further reading: <a href="https://theconversation.com/no-simple-solution-when-families-meet-the-law-58641">No simple solution when families meet the law</a></strong></em></p>
<hr>
<p>Family law legislation has undergone significant expansion and reform. It now covers divorce, <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/separation-and-divorce/nullity/">nullity</a>, parental responsibilities and obligations in respect of all children, and children’s rights. </p>
<p>It covers de facto relationships (marriage is dealt with specifically by the Marriage Act), spousal maintenance, division of property binding financial agreements, and family violence. There are now two federal family law courts, but they are overburdened and have long waiting lists.</p>
<p>Researchers too have not been idle. For example, the 1980s and 1990s saw a plethora of reports by the ALRC about <a href="http://www.alrc.gov.au/inquiries/domestic-violence">domestic violence</a> (1986), <a href="http://www.alrc.gov.au/report-39">matrimonial property</a> (1987), <a href="http://www.alrc.gov.au/inquiries/contempt">contempt</a> (1987), <a href="http://www.alrc.gov.au/inquiries/multiculturalism-and-law">multiculturalism and family law</a> (1991), <a href="http://www.alrc.gov.au/inquiries/equality-law">justice for women</a> (1994), and <a href="http://www.alrc.gov.au/report-73">complex child contact cases</a> (1995).</p>
<p>More recently, the ALRC has produced two substantial reports on <a href="http://www.alrc.gov.au/inquiries/family-violence">family violence</a>. </p>
<p>In addition, the AIFS, the FLC and the family law courts have each produced numerous reports on a wide range of areas including child protection, parenting arrangements post-separation, and family violence.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/188447/original/file-20171002-12115-12p5apx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Family Law Act established the Family Court of Australia.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>There have also been important bipartisan state and federal parliamentary inquiries, most notably the federal inquiry into <a href="http://www.aphref.aph.gov.au-house-committee-fca-childcustody-media-030703-%20hull%20media%20(1).pdf">child custody arrangements in the event of family separation</a>. This in turn produced <a href="http://melbourneinstitute.unimelb.edu.au/assets/documents/hilda-bibliography/other-publications/pre2010/FCA_childcustody_report_fullreport.pdf">“Every picture tells a story”</a> in 2003 and the <a href="http://www.aph.gov.au/fvlawreform">parliamentary inquiry</a> into how family law can better support and protect those affected by family violence in 2017.</p>
<p>All these resources reflect a rich but largely unconnected tapestry of information about our family law system, which the ALRC can use to assess how best to reform the system.</p>
<p>Yes, the ALRC review of the Australian family law system is most welcome. However, it need not waste precious time or resources to remind us, as Leo Tolstoy wrote in Anna Karenina, that “all happy families resemble one another, each unhappy family is unhappy in its own way”. </p>
<p>Notwithstanding the wide terms of reference, some other areas merit attention. These include the use of “good” evidence-based social science in determining the best interests of children and crafting parenting orders. </p>
<p>Another area is access to justice. The high cost of legal representation and cuts to legal aid mean large numbers of self-represented litigants. Also there is the question of mandatory education for judges and legal professionals in areas such as family violence and child abuse, which comprise over half of the courts’ work loads.</p>
<p>We know that families are complex entities when intact. And it is equally complex and complicated catering to the needs of adults and children once those family structures break down. </p>
<p>It is hoped that at least as a preliminary task, the ALRC will traverse this vast archipelago of individual studies, reports and inquiries and produce one consolidated, cohesive and accessible resource base from which to conduct a well-informed, meaningful and far-reaching discourse and review.</p><img src="https://counter.theconversation.com/content/84909/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Renata Alexander 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>The review of the Australian family law system is welcome, but it should not waste precious time and resources on data that already exist.Renata Alexander, Senior Lecturer in Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/812182017-07-18T13:06:26Z2017-07-18T13:06:26ZPeter Dutton has his prize – now to see how he handles it<figure><img src="https://images.theconversation.com/files/178653/original/file-20170718-10283-5zn9is.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Peter Dutton comes to the job with, at best, a middling ministerial record.</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p>The mettle of the man who aspires to be a future Liberal leader is about to be severely tested, now that Malcolm Turnbull has handed Peter Dutton his dream home affairs ministry, overseeing a vast national security empire.</p>
<p>Dutton comes to the job with, at best, a middling ministerial record. His time in the health portfolio was a nightmare. In immigration he has been relentlessly political.</p>
<p>The former Queensland policeman is a natural political head kicker rather than a nuanced policy man.</p>
<p>It was Malcolm Turnbull who, among other ministers, tore shreds off a 2015 Dutton submission on removing citizenship from people involved with terrorism.</p>
<p>A recent initiative, revamping foreign worker visas, has brought problems for and complaints from business. The announced toughening of the citizenship requirements that makes the English test excessively difficult has been sharply criticised.</p>
<p>Dutton has not so far managed to secure the departure of any of the refugees from Manus Island and Nauru that the United States agreed to take.</p>
<p>When he became leader Turnbull wouldn’t have Dutton on cabinet’s national security committee. He fought his way back into that key group. He and Turnbull drew close. With Liberal conservatives coalescing around him as their factional heavyweight, Dutton made himself a guardsman for the Prime Minister.</p>
<p>Turnbull is understandably sensitive to suggestions that the planned home affairs ministry is all about Dutton, whose continued support is so vital to him.</p>
<p>Those around the Prime Minister insist Turnbull has long been committed to a shake up of national security arrangements, exploring the issues on overseas trips.</p>
<p>But you have to ask: if there were no Dutton would Turnbull be putting the government through what he is presenting as the biggest reorganisation in four decades, which is going to take many months and a vast amount of effort to implement? Wouldn’t it be a matter of fine tuning rather than root and branch change? After all, the evidence - and the mantra from the government - is that things are working well.</p>
<p>Whatever the motives, and regardless of their personal thoughts, ministers have to defend the new arrangements. This led Attorney-General George Brandis - a long-time opponent of the shift that will cost him responsibility for ASIO – into an unexpected and unconvincing argument at Tuesday’s press conference, which brought together with Turnbull the winner and losers (Dutton, Brandis and Justice Minister Michael Keenan, who cedes the Australian Federal Police).</p>
<p>Not only did Brandis speak enthusiastically about the new arrangements, but he pointed out that because of his multiple responsibilities he hadn’t been able to focus exclusively on his national security duties.</p>
<p>It sounded like the barrister making a case. If one had put to Brandis six months ago that the present arrangement was unsatisfactory, it’s a fair bet he’d have been dismissive.</p>
<p>But Brandis has retained his responsibility for issuing warrants under the ASIO Act, a power the attorney-general will share with Dutton. They will both have to approve warrants, except in cases where time is of the essence.</p>
<p>One-time ASIO head Dennis Richardson said on Tuesday: “It’s a good thing the attorney-general remains the approval authority for ASIO warrants.” But “it does mean ASIO is effectively responsible to two ministers not one”.</p>
<p>Richardson, in contrast to the government and many commentators, plays down the significance of the broad reorganisation, seeing much of it as presentational.</p>
<p>If Brandis had trouble with multi duties, Dutton is likely to have the problem in spades, given the breadth of his responsibilities, that will range from border security to oversight of ASIO, the AFP, Australian Criminal Intelligence Commission, and much else. The bundle labelled “national security” has varied components.</p>
<p>Most security experts have either challenged the need for change, or said that what is planned is undesirable. Neither Turnbull nor Dutton will be drawn on whether the heads of ASIO or the AFP advocated that they move ministers – because, on all we know, they didn’t.</p>
<p>Turnbull is aware of the dangers of excessively concentrated power – hence his effort to beef up the attorney-general’s scrutiny remit. The first law officer was “the minister for oversight and integrity and that role is being reinforced”, he said. How vigorously this responsibility will be exercised will depend on who occupies the portfolio - Brandis is expected to leave parliament in a few months.</p>
<p>While co-ordination is vital, one risk that has been raised is that too much centralisation can push out counter opinions. It will be up to Turnbull to stop that from happening.</p>
<p>The planned new Office of National Intelligence (ONI), which will subsume the present Office of National Assessments, will report directly to the Prime Minister.</p>
<p>The office was proposed by the L'Estrange/Merchant Independent Intelligence Review, in a <a href="https://pmc.gov.au/sites/default/files/publications/2017-Independent-Intelligence-Review.pdf">report released on Tuesday</a>. That review, incidentally, did not recommend a Home Affairs portfolio - although those in the prime ministerial circle stress that it did not recommend against one.</p>
<p>The review says the office “would be headed by a Director-General who would be the Prime Minister’s principal adviser on matters relating to the national intelligence community.”</p>
<p>Who gets this job and how much Turnbull listens to them will be absolutely critical in how the new centralised system under a highly assertive minister operates. Turnbull and the director of the ONI potentially could be the counterweight to Dutton and the Home Affairs department.</p><img src="https://counter.theconversation.com/content/81218/count.gif" alt="The Conversation" width="1" height="1" />
Turnbull is understandably sensitive to suggestions that the planned home affairs ministry is all about Dutton, whose continued support is so vital to him.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/811672017-07-18T03:48:07Z2017-07-18T03:48:07ZNew Home Affairs department should prompt review of Australia’s human rights performance<figure><img src="https://images.theconversation.com/files/178559/original/file-20170718-21784-ivgrgy.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><p>Prime Minister Malcolm Turnbull has just announced the creation of a new “<a href="http://www.abc.net.au/news/2017-07-17/government-to-propose-home-office-style-super-ministry/8716830">super-ministry</a>”, modelled on the UK <a href="https://www.gov.uk/government/organisations/home-office">Home Office</a>. By the end of 2018, Australia will have a new Department of Home Affairs.</p>
<p>This change consolidates responsibility for all security agencies within a single portfolio. Peter Dutton, currently immigration minister, will head the proposed department. </p>
<p>Dutton gains responsibility for the Australian Federal Police from Justice Minister Michael Keenan. He also adds responsibility for ASIO, previously under the portfolio of Attorney-General George Brandis. As home affairs minister, Dutton will retain responsibility for immigration and border protection. </p>
<p>Announcing the change, Turnbull and Brandis went to considerable effort to note the attorney-general’s continued significance, despite his loss of responsibility for intelligence. Both emphasised that the attorney-general would gain responsibility for some oversight bodies previously within the prime minister’s portfolio. </p>
<p>According to Turnbull, the new arrangements will ensure stronger oversight of security matters to balance protection for civil liberties and freedoms.</p>
<h2>What does this reform mean for people subject to Australia’s immigration system?</h2>
<p>The comments of the four ministers at today’s press conference were revealing in many ways. </p>
<p>One group of people – refugees and asylum seekers – were completely absent from the ministers’ remarks. This raises questions regarding the meaning of the changes for these particularly vulnerable people, who remain subject to the powers of the home affairs minister.</p>
<p>Brandis said the reforms are significant because, for the first time, a senior cabinet minister will have as his exclusive focus the national security of Australia. That is, the home affairs minister’s sole focus will be national security and border security.</p>
<p>Dutton, preparing to assume wide-ranging new powers, reflected on his ministry’s success in stopping and turning back boats. According to Dutton, without integrity in the immigration and border protection system, “we can’t keep our country safe”.</p>
<p>And Keenan celebrated the government’s novel use of the immigration system to further its national security priorities. </p>
<p>The sum of these propositions is a continued linking of people seeking asylum with the notion of <a href="https://theconversation.com/duttons-demonisation-of-refugees-is-the-latest-play-in-a-zero-sum-game-69043">a threat</a> to Australia’s integrity and security. Today’s announcement failed to show care or responsibility for the <a href="https://theconversation.com/fake-refugees-dutton-adopts-an-alternative-fact-to-justify-our-latest-human-rights-violation-78175">dehumanising impact</a> of this strategy. </p>
<p>Instead, Dutton takes on a considerably expanded portfolio, despite extensive <a href="http://www.smh.com.au/federal-politics/political-news/peter-dutton-seeks-stronger-powers-over-citizenship-decisions-20170611-gwp504.html">critique</a> regarding his <a href="http://www.abc.net.au/news/2017-02-09/peter-dutton-accused-of-seeking-trump-like-powers-visa-reviews/8253736">efforts</a> to expand already very <a href="https://theconversation.com/minister-to-get-unprecedented-power-if-australias-new-citizenship-bill-is-passed-79356">broad powers</a>. </p>
<h2>Australia’s bid for the UN Human Rights Council</h2>
<p>Foreign Minister Julie Bishop was absent from today’s announcement. She is <a href="http://foreignminister.gov.au/releases/Pages/2017/jb_mr_170717.aspx">currently visiting</a> India and Sri Lanka. </p>
<p><a href="http://www.skynews.com.au/news/top-stories/2017/07/18/need-for-security-super-department-questioned.html">Her opposition</a> to the creation of the new super-ministry has been widely reported. </p>
<p>Until today’s press conference, Brandis was also on record <a href="http://www.smh.com.au/federal-politics/political-news/plan-for-homeland-security-ministry-a-peter-dutton-power-grab-says-labor-20170427-gvtni3.html">as opposing</a> the creation of a super-ministry. This may explain the emphasis Turnbull placed on the oversight role of the attorney-general for “ensuring governments act lawfully and justly”. </p>
<p>Others will consider whether this change is called for in the sense of enhancing Australia’s security capacity or performance. But today’s announcement must also be assessed in the context of Australia’s human rights standing. </p>
<p>Bishop and Brandis have taken primary responsibility for promoting Australia’s current bid for election to the UN Human Rights Council. According to the Department of Foreign Affairs and Trade, Australia is the ideal candidate for a two-year term on the council, as it has been - and continues to be – an “<a href="http://dfat.gov.au/international-relations/international-organisations/pages/australias-candidacy-for-the-unhrc-2018-2020.aspx">international human rights leader</a>”. </p>
<p>The government has taken steps to demonstrate Australia’s commitment to human rights, in support of its campaign. </p>
<p>For example, in February, Brandis announced that Australia would <a href="http://www.abc.net.au/news/2017-02-09/australia-pledges-to-ratify-opcat-torture-treaty/8255782">adopt the Optional Protocol to the Convention Against Torture</a> (OPCAT). OPCAT aims to <a href="http://www.ohchr.org/EN/HRBodies/OPCAT/Pages/OPCATIndex.aspx">improve oversight</a> of international standards at the domestic level. Its adoption in Australia will enable access for independent inspection agencies to Australian prisons and detention centres. </p>
<p>And, fortunately for Australia, France recently withdrew as a candidate. Although an election will still be held in October this year, Bishop is <a href="https://www.theguardian.com/australia-news/2017/jul/16/julie-bishop-expects-australia-to-win-un-human-rights-council-seat-after-france-drops-out">now confident</a> that Australia and Spain will be elected unopposed to the two available seats for their regional grouping.</p>
<p>Regardless of the likelihood of its election, however, does today’s shift in the national security context support the legitimacy of Australia’s bid for election to the Human Rights Council?</p>
<p>In launching Australia’s bid, Bishop described human rights as “national values deeply embedded in Australian society”. Brandis described Australia’s candidacy as:</p>
<blockquote>
<p>… the most natural thing in the world for a country which – at its core – is a nation built on a belief in, and a commitment to, the human rights of all – the human rights of all Australians and the human rights of all the peoples of the world.</p>
</blockquote>
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<p>Such characterisations are widely disputed by <a href="https://www.humanrights.gov.au/sites/default/files/20160913_Pathways_to_Protection.pdf">domestic</a> and <a href="https://www.hrw.org/sites/default/files/world_report_download/wr2016_web.pdf">international</a> commentary, which tests <a href="https://www.upr-info.org/sites/default/files/document/australia/session_23_-_november_2015/a_hrc_wg.6_23_l.11.pdf">Australia’s performance</a> against its international legal obligations. </p>
<p>Notably, the people ignored in today’s announcement – those seeking asylum from persecution in their home countries – have suffered <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf">human rights abuses</a> in Australia’s immigration system. </p>
<p>It is difficult to see how the consolidation of <a href="http://www.austlii.edu.au/au/journals/JCULawRw/2006/6.html">far-reaching security powers</a> in a single ministry will promote human rights. Outgoing Human Rights Commission president Gillian Triggs has already identified expanding executive power <a href="http://www.smh.com.au/federal-politics/political-news/gillian-triggs-says-expansion-of-ministerial-powers-a-growing-threat-to-democracy-20150605-ghhvji.html">as a threat</a> to democracy and human rights. </p>
<p>While the protection of the Australian community from terror threats is an undeniable and legitimate priority for any government, lawyers must oversee the coming reforms to determine whether they <a href="http://www.smh.com.au/comment/george-brandis-new-antiterror-law-allows-asio-to-torture-20140917-10i9hv.html">further threaten</a> the <a href="https://www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws">delicate balance</a> between safety and security on one hand, and freedom and rights on the other. </p>
<p>Australia’s model for these reforms, the UK Home Office, hardly has a <a href="https://www.irishtimes.com/news/court-action-over-internment-1.881526">stellar human rights record</a>. It has been recently <a href="https://hrcessex.wordpress.com/2017/05/09/1310/">criticised</a> for “making border guards of doctors”. Its officials have been given incentives for reaching asylum seeker <a href="https://www.theguardian.com/uk-news/2014/jan/14/home-office-asylum-seekers-gift-vouchers">rejection targets</a>.</p>
<p>And in June this year, UK Prime Minister Theresa May demanded expanded anti-terror powers for government. <a href="https://www.theguardian.com/politics/2017/jun/06/theresa-may-rip-up-human-rights-laws-impede-new-terror-legislation">She said</a>: </p>
<blockquote>
<p>… if human rights laws stop us from doing it, we will change those laws so we can do it.</p>
</blockquote>
<p>The human rights implications of today’s announcement must be carefully monitored, particularly considering the lack of comprehensive human rights protection in Australian law.</p><img src="https://counter.theconversation.com/content/81167/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Amy Maguire is a Co-Chair of the Indigenous Rights Subcommittee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p>Prime Minister Malcolm Turnbull has just announced the creation of a new “super-ministry”, modelled on the UK Home Office. By the end of 2018, Australia will have a new Department of Home Affairs. This…Amy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/810282017-07-14T07:39:03Z2017-07-14T07:39:03ZAustralia’s planned decryption law would weaken cybersecurity<figure><img src="https://images.theconversation.com/files/178226/original/file-20170714-14267-1na2bn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The ability of authorities to access encrypted messages must be balanced with the security risks.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-march-29th-2017-whatsapp-611493284?src=t0zVNHHeSJecxr_hG04nig-1-38">Ink Drop/Shutterstock</a></span></figcaption></figure><p>The Australian government <a href="http://www.abc.net.au/news/2017-07-14/facebook-google-to-be-forced-to-decrypt-messages-fight-terrorism/8707748">plans to introduce</a> new legislation forcing companies such as Google and Facebook to de-crypt messages in the name of fighting terrorism and other crimes. But the move will have serious implications for cybersecurity.</p>
<p>In a press conference on Friday, Prime Minister Malcolm Turnbull said the law would impose an obligation on technology companies to be able to provide Australian security agencies with access to encrypted user communications.</p>
<p>Both he and Attorney-General George Brandis have insisted they are not asking for “<a href="https://theconversation.com/when-is-not-a-backdoor-just-a-backdoor-australias-struggle-with-encryption-79421">back doors</a>” to be built into encryption software. Yet they have not detailed how their goal can be achieved otherwise.</p>
<p>Take an end-to-end encrypted messaging service like Signal. A server scrambles the original message, and the text can be de-scrambled only by a “key” that exists on the recipient’s phone. The company never sees the plaintext.</p>
<p>The government’s message is that it’s only trying to keep the country safe, but this masks a great deal of complexity.</p>
<p>Cybersecurity is always a trade-off. Weakening security in one area to protect against terrorist attacks on the ground could increase the risk of cyberattacks by terrorists and hostile nations, and increase the likelihood of cybercrime. </p>
<h2>Can Australia follow the UK’s lead?</h2>
<p>The attorney-general indicated that Australia would follow the UK’s lead in the proposed law, and especially its <a href="http://services.parliament.uk/bills/2015-16/investigatorypowers.html">Investigatory Powers Act</a>, which became law in 2016. </p>
<p>Although the UK has been held up as an example to follow, it hasn’t managed to actually get its version of the law working yet, nor has it decided how decryption would be achieved. </p>
<p>Also known as the “<a href="https://www.theguardian.com/world/2016/nov/29/snoopers-charter-bill-becomes-law-extending-uk-state-surveillance">Snooper’s Charter</a>”, the law gives UK intelligence agencies and law enforcement the ability to carry out both targeted and bulk surveillance of communications data. </p>
<p>Most importantly, the UK act <a href="https://www.openrightsgroup.org/assets/files/pdfs/home_office/ANNEX_A_Draft_Investigatory_Powers_(Technical%20Capability)_Regulations.pdf">requires that</a> telecommunication operators “provide and maintain the capability to disclose, where practicable, the content of communications or secondary data in an intelligible form and to remove electronic protection”.</p>
<p>Despite the UK having passed the law, there has been little public discussion about how technology companies would actually do this, nor what would happen if they failed to comply. </p>
<h2>Could tech companies comply even if they wanted to?</h2>
<p>In 2015, a group of cybersecurity experts debated how technology companies could comply with laws such as those proposed in both the UK and Australia. </p>
<p>The academics and industry researchers <a href="https://www.schneier.com/academic/paperfiles/paper-keys-under-doormats-CSAIL.pdf">outlined the significant risks</a> of a number of approaches that would allow specific agencies access to unencrypted information.</p>
<p>One approach, for example, involves using special keys provided by a government agency to encrypt a copy of all messages. This would allow users to continue to use end-to-end encryption of messages, but government agencies could always access their own versions of the messages when necessary. </p>
<p>The obvious risk with this is that if the “master key” was lost or stolen, everyone’s communications would be compromised. </p>
<p>Creating individual keys and putting them in a “key escrow”, effectively a large database, would also be insecure and technically impractical. </p>
<p>Another approach would be to weaken the encryption to such an extent that it would be feasible for someone with a large enough computer to break if necessary. Again, this would give foreign governments and well resourced criminals the same capability, rendering the communication unsecured. </p>
<h2>Decreasing security increases risk in other areas</h2>
<p>The Australian government, like other nations, has a <a href="https://cybersecuritystrategy.pmc.gov.au/">Cyber Security Strategy</a> that lays out how it aims to protect the country, its critical infrastructure and its population. </p>
<p>Strong encryption and the ability to communicate securely is a fundamental part of this strategy. Undermining this capability by making all communications open to a large number of people and organisations within the government significantly increases the risks of compromise by hostile actors like foreign nation states and organised criminals. </p>
<p>These risks are not being discussed as part of the fight against terrorism but are real nonetheless. The leaking of secrets from US agencies like the <a href="https://www.theguardian.com/us-news/the-nsa-files">NSA</a> and <a href="https://www.theguardian.com/media/2017/mar/07/wikileaks-publishes-biggest-ever-leak-of-secret-cia-documents-hacking-surveillance">CIA</a> demonstrates that even the most powerful organisations are not able to guarantee the security of sensitive information. </p>
<p>The only thing stopping hostile actors from getting access to encrypted information and communications on a large scale currently is the fact that the keys are not held centrally. </p>
<h2>Terrorists will just shift the way they do things</h2>
<p>While it is clear that being able to read encrypted messages would be an advantage for law enforcement and security in the short term, terrorists and criminals would quickly shift to other non-regulated forms of encryption. </p>
<p>The open source Tor network, for example, is currently not controlled by a company or government and criminals and terrorists already use the <a href="https://theconversation.com/a-busy-week-on-the-dark-web-highlight-darknet-markets-increasing-role-in-crime-80637">dark web</a> to communicate and trade illegal goods and services.</p>
<p>Nothing was said about the dark web on Friday, although this is arguably a bigger problem from a security perspective than the use of social media messaging apps. </p>
<p>But even if Tor was blocked in some way, there is a raft of encryption software that can be easily deployed by those who want to protect their communications from the government.</p><img src="https://counter.theconversation.com/content/81028/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Glance 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>The Australian government’s proposed law that would force technology companies to decrypt messages could make Australians more vulnerable.David Glance, Director of UWA Centre for Software Practice, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/794212017-06-14T06:35:19Z2017-06-14T06:35:19ZWhen is ‘not a backdoor’ just a backdoor? Australia’s struggle with encryption<figure><img src="https://images.theconversation.com/files/173716/original/file-20170614-30067-fgt33f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government wants additional powers to access encrypted messages.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/96512180@N00/8252565572/in/album-72157632191745738/">Luis/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>The Australian government wants the ability to read messages kept secret by encryption in the name of aiding criminal investigations. But just how it proposes to do this is unclear.</p>
<p>As Australian Attorney-General George Brandis recently <a href="http://www.smh.com.au/federal-politics/political-news/how-the-turnbull-government-plans-to-access-encrypted-messages-20170609-gwoge0.html">told Fairfax</a>:</p>
<blockquote>
<p>At one point or more of that process, access to the encrypted communication is essential for intelligence and law enforcement. </p>
</blockquote>
<p>In <a href="https://twitter.com/SkyNewsAust/status/873671580659859456">an interview</a> with Sky News, he spoke favourably of controversial UK <a href="https://www.openrightsgroup.org/ourwork/reports/home-office-consultation:-investigatory-powers-(technical-capability)-regulations-2017">legal powers</a> that seek to impose on device makers and social media companies “a greater obligation to work with authorities where a notice is given to them to assist in ‘breaking’ a communication”.</p>
<p>Brandis has insisted the government doesn’t want a “backdoor” in secure messaging apps. How, then, he expects companies to “break” them is unclear. </p>
<p>As many have <a href="http://www.abc.net.au/radionational/programs/breakfast/government-wants-increased-access-to-encrypted-messages/8612102">pointed out</a>, it’s hard to see any tool that gives law enforcement privileged access to otherwise encrypted messages as anything else but a “backdoor”.</p>
<h2>How end-to-end encryption works</h2>
<p>Backdoor or not, it’s worth being sceptical of any mechanism aimed at accessing encrypted messages on platforms like WhatsApp. To explain why, you need to understand how end-to-end encrypted messaging services work.</p>
<p>Encrypted messaging servers scramble the original message, the “plaintext”, into something that looks like random gibberish, the “cyphertext”. </p>
<p>Translating it back to plaintext on the receiver’s phone depends on a “key” – a short string of text or numbers. Without access to the key, it isn’t feasible to get the plaintext back.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=137&fit=crop&dpr=1 600w, https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=137&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=137&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=172&fit=crop&dpr=1 754w, https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=172&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/173725/original/file-20170614-21338-g8aaja.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=172&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">How end-to-end encryption works.</span>
<span class="attribution"><span class="source">Elya/joshbressers/The Noun Project composite</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Keys are generated in pairs, a public key and a private key, of which only the private key must be kept secure. The sender of the secure message has the receiver’s public key, which is used to encrypt the plaintext. The public key cannot be used to unscramble the cyphertext, nor does possessing the public key help in obtaining the private key.</p>
<p>End-to-end encryption simply keeps the private key securely stored on the phones themselves, and converts the cyphertext to plaintext directly on the phone. Neither the private keys nor the plaintext are ever available to the operator of the messaging service. </p>
<h2>Compromising security</h2>
<p>An encrypted messaging app could hypothetically be modified in a number of ways to make it easier for authorities to access.</p>
<p>One would be to restrict the range of keys that the app can generate. That would make it possible for the government to check all possibilities. </p>
<p>The US government, which imposed <a href="https://www.digicert.com/blog/freak-attack-need-know/">regulations to this effect</a> for a brief period in the 1990s, may have once had computing resources far in excess of any other entity, but this is no longer the case. In fact, these old rules are themselves <a href="http://www.zdnet.com/article/how-to-protect-yourself-against-freak/">still causing security problems</a>, as some applications can be tricked into reverting to the insecure “export mode” encryption that is trivially crackable today.</p>
<p>Other national governments and well-funded private bodies would find “brute force” checking of all the possible keys well within their capabilities, compromising the security of legitimate users. </p>
<p>And while governments might believe they can keep their “backdoor” secure, such secrets have a nasty habit of leaking out, as did hacking techniques used by the <a href="https://theconversation.com/wikileaks-vault-7-reveals-staggering-breadth-of-cia-hacking-74236">CIA</a> and <a href="http://anonhq.com/nsa-hacking-tools-leaked/">NSA</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"873671580659859456"}"></div></p>
<p>Nor can governments simply make possessing encryption software a criminal offence. </p>
<p>Take the application Pretty Good Privacy (<a href="https://philzimmermann.com/EN/faq/index.html">PGP</a>) – or, more precisely, its open-source equivalent GNU Privacy Guard (<a href="https://www.gnupg.org/">GPG</a>). </p>
<p>Once used for securing email messages, it’s now more often used to ensure software updates on Linux systems are from the original authors and have not been tampered with. For instance, the <a href="https://help.ubuntu.com/community/SecureApt">system update tool in Ubuntu Linux</a> uses the GPG machinery for this. Without it, the Linux servers that run much of the internet would become much more vulnerable to hackers. </p>
<p>Similar mechanisms are used in Windows, iOS and Android to prevent compromised applications from being installed. As such, banning or undermining end-to-end encryption would seriously affect internet security. </p>
<h2>Endless workarounds</h2>
<p>In any case, creating backdoors in end-to-end encrypted messaging services would not achieve its goals. Once messaging app backdoors became known, savvy users would simply switch to another service, or make their own. </p>
<p>Most popular secure messaging apps, such as WhatsApp and Facebook’s secure messaging mode, use a system originally developed by <a href="https://whispersystems.org/">Open Whisper Systems</a> for the Signal secure messaging app. Anyone can download the source code and set up their own version. </p>
<p>But let us assume for a moment that the Australian government somehow forces users to use messaging apps that give the government access. While this would impose a minor inconvenience on those wishing to communicate securely, it would do little more.</p>
<p>It would be possible to develop a separate encryption app that encrypts the message. Using <a href="http://www.itworld.com/article/2826840/crash-course-digital-steganography.html">digital steganography</a>, the encrypted message could be hidden within a photo or video file; this could then be sent as an attachment. The government’s access to the messaging app would then be moot. </p>
<p>While they may – with some effort – be able to discover the existence of the hidden messages in media file attachments, they would still be unable to decrypt the message.</p>
<p>To date, the ideas floated by the Australian and British governments on end-to-end encryption could most charitably be described as vague.</p>
<p>They would be wise to consult experts to come up with proposals grounded in technical reality if they wish to be taken seriously by the technology industry.</p><img src="https://counter.theconversation.com/content/79421/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Merkel is a member of the Australian Greens.</span></em></p>The Australian government wants to access encrypted messages, but don’t call it a “backdoor”.Robert Merkel, Lecturer in Software Engineering, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746192017-03-21T23:38:55Z2017-03-21T23:38:55ZProposed changes may confuse rather than clarify the meaning of Section 18C<figure><img src="https://images.theconversation.com/files/161737/original/image-20170321-9136-10hesgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Turnbull government's objectives in seeking to change Section 18C are unclear.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Turnbull government <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">has announced</a> proposed changes to <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act: the law that makes it unlawful to engage in acts that are reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. </p>
<p>Under the proposals, the word “harass” will replace the words “offend, insult, humiliate”. A provision will also be included saying the test to be applied in deciding whether 18C has been breached is the objective standard of “the reasonable member of the Australian community”.</p>
<p>There are also proposed changes to the processes the Australian Human Rights Commission follows when someone lodges a complaint under 18C. For example, the commission will have to contact the people a complaint affects.</p>
<p>The changes to the commission’s processes are relatively uncontroversial; the commission supports many of them. They should also avoid a repeat of cases such as that involving <a href="http://www.abc.net.au/news/2016-11-04/18c-racial-vilification-case-facebook-qut-thrown-out/7996580">three Queensland University of Technology students</a>, who were not contacted until 14 months after the complaint was made.</p>
<p>However, the government’s objectives in seeking to change 18C are unclear. This may have the effect of confusing rather than clarifying what the law means.</p>
<h2>Why does the government want to change the wording?</h2>
<p>Much of the controversy surrounding 18C has focused on the words “offend” and “insult”. This is unsurprising: many people recognise these words are capable of applying to slights that should not be the concern of hate-speech laws. </p>
<p>Many also think that, in a democracy, there shouldn’t be a right not to be offended or insulted. The hate-speech laws of <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">most other democracies</a> don’t cover offensive and insulting acts.</p>
<p>The Federal Court has recognised the difficulties with 18C by <a href="http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1007.html">interpreting</a> it that so it applies only to:</p>
<blockquote>
<p>… profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>18C’s legal meaning is therefore different from its ordinary meaning. </p>
<p>However, this is not always well understood, either by critics of 18C and possibly by some people who have brought complaints under the provision. Many <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">have argued</a> there is a case for amending 18C to bring the law’s ordinary meaning into line with the Federal Court’s interpretation.</p>
<p>Against this, there have been concerns that any changes to 18C could send a <a href="http://www.abc.net.au/news/2017-03-21/ethnic-communities-react-to-proposed-18c-changes/8374494">problematic message</a> to minority groups and give a <a href="http://www.smh.com.au/national/scrapping-bolt-laws-would-be-a-green-light-to-racists-neil-brown-20140220-332wf.html">green light</a> to people who want to engage in racist behaviour. There have also been concerns about unintended effects upon a settled body of Federal Court decisions. </p>
<p>Clearly, any change to 18C would have to be carefully managed to clarify its meaning while avoiding these negative outcomes.</p>
<p>In this light, the government has not adequately explained what it is hoping to achieve by changing the wording of 18C. For example, why remove the word “humiliate” when controversy has focused on the words “offend” and “insult”? Why has the word “harass” been chosen instead of other options, like “vilify” or “degrade”? </p>
<p>It is also unclear if the government is seeking to bring 18C in line with the Federal Court’s interpretation, or if the government’s view is that the Federal Court’s current approach makes it too easy for race-hate complaints to succeed under 18C.</p>
<p>Unless the government adequately explains what it is seeking to achieve by changing 18C’s wording, it is unlikely to win broad support for its proposals, which look likely to be <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">blocked by the Senate</a>. It is also unlikely to achieve its stated aims of making the law clearer and more effective.</p>
<h2>Who is the reasonable person?</h2>
<p>Under the Federal Court’s interpretation of 18C, an “objective”, rather than “subjective” test is applied in deciding whether it has been breached. </p>
<p>The question is not whether the person making the complaint was subjectively “insulted, offended, humiliated or intimidated”, but whether the act was <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonably likely</a> to have “profound and serious effects”.</p>
<p>In this regard, the Federal Court will often apply a “<a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonable person</a>” test. This involves considering the conduct’s likely effect on a reasonable member of the racial or ethnic group that is the target of the alleged conduct.</p>
<p>The government’s proposal that the standard should be “the reasonable member of the Australian community” therefore clarifies that the test under 18C is objective as opposed to subjective. However, a crucial difference is that the reasonable person is no longer a member of the racial or ethnic group that has been targeted, but is instead a member of the broader Australian community.</p>
<p>The government has not adequately explained what it is seeking to achieve through this change. One possible concern is that “reasonable” Australians who are ignorant of what is likely to harass or intimidate minority groups should not inadvertently breach 18C. However, a clear danger of the new test is that a law meant to protect minorities will not adequately reflect their perspectives.</p>
<p>One way this problem could be avoided would be for the Human Rights Commission and the Federal Court to regard the “reasonable member of the Australian community” as sensitive to minority concerns. However, in the short term, the change is more likely to confuse rather than clarify 18C’s meaning.</p><img src="https://counter.theconversation.com/content/74619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson 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>The government has not adequately explained what it is hoping to achieve by changing the wording of Section 18C.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/739232017-03-02T11:41:05Z2017-03-02T11:41:05ZGrattan on Friday: The art of walking, forwards and backwards, and some thoughts on Brandis<p>Malcolm Turnbull will overfly Western Australia twice next week, when he makes a brief dash to Indonesia to attend a conference of Indian Ocean Rim leaders.</p>
<p>He has no plans to drop into Perth. <a href="https://thewest.com.au/politics/state-election-2017/second-visit-from-pm-off-libs-agenda-ng-b88395150z">It is reported</a> the local Liberals weren’t much impressed with his one brief sortie into the state campaign.</p>
<p>Is that Tony Abbott smiling through clenched teeth? Remembering how the Western Australian Liberals were cool about his visiting ahead of the 2015 Canning byelection? Turnbull terminated Abbott’s leadership just before those voters got to the polls.</p>
<p>Not that Turnbull’s leadership is under any short-term threat. But he has entered that unfortunate zone when the media read significance into the incidental.</p>
<p>Such as the photo of Peter Dutton, who is suddenly fashionable on the succession ladder, striding out for a morning walk with Finance Minister Mathias Cormann.</p>
<p>The accompanying Courier Mail report said that “key conservative powerbroker Mathias Cormann and Liberal leadership aspirant Peter Dutton have been meeting for secret talks most mornings this week”.</p>
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<p>The two were just trying to slim down, Dutton said; Cormann – who called out Abbott in strong language last week–- was decidedly snippy. “Secret talks? Is this a joke? Only in Canberra will some interpret a longstanding early morning (public) exercise routine as a conspiracy.”</p>
<p>Indeed. But in their pally perambulations the pair may lament the government’s bad situation.</p>
<p>Not least, how strips have been torn off it over the decision of the Fair Work Commission to cut Sunday penalty rates in the hospitality, retail, fast food and pharmacy industries.</p>
<p>So much so that Thursday saw Turnbull doing a quick step backwards, as he struggled desperately to neutralise the political damage.</p>
<p>It had become obvious that the government could not protect itself simply by trying to fit up Bill Shorten with the decision, or saying the umpire should be obeyed.</p>
<p>So Turnbull began talking about the “transitional arrangements” to be canvassed at a commission hearing later this month. It asked the government to make a submission, and one is being prepared.</p>
<p>Turnbull said: “We’re very supportive of the commission managing this transition in a way that ensures that take-home pay is, as far as possible, maintained”, while stressing that how the commission protected workers was a matter for it.</p>
<p>Employment Minister Michaelia Cash said: “Nobody in Australia wants to see anybody’s take home pay go backwards”.</p>
<p>If this was where it was going to end up, the government should have started there. It misjudged how deeply this decision, albeit made by the “umpire”, could harm it. Its obsession with Shorten had clouded its view.</p>
<p>Meanwhile Dutton tried to shore up the government’s jobs credentials by announcing a crackdown on the fast-food industry importing foreign workers on 457 visas. “Australian workers, particularly young Australians, must be given priority,” he said. Given that only several hundred workers had come in, the hype seemed a bit of politicking.</p>
<p>“Jobs and growth” has been the Turnbull mantra but this week’s good news on growth – 1.1% in the December quarter – hardly registered politically, drowned out by other issues.</p>
<p>While the penalty rates debate raged in the House of Representatives all week, senators were taken up with estimates hearings. At one of these, Attorney-General George Brandis’s role in the fracas between the federal and WA governments over litigation relating to the <a href="https://theconversation.com/new-inquiry-into-conduct-of-george-brandis-69566">liquidation of the Bell Group</a> was back in the spotlight. This followed a claim Brandis had been involved in the matter earlier than he’d said.</p>
<p>The Bell affair is subject of a Senate investigation – the second Senate inquiry in which Brandis has featured since the election – reporting on March 21.</p>
<p><a href="https://www.thesaturdaypaper.com.au/news/politics/2017/01/28/exclusive-brandis-bound-london-porter-take-attorney-general/14855220004168">Speculation has had it</a> that Brandis will be out of the parliament in coming months, sent as high commissioner to London, paving the way for a reshuffle that could install Christian Porter as attorney-general.</p>
<p>Despite the constant talk it is understood Brandis has not been approached, nor has Alexander Downer, whose London term is up in May, been told anything. It’s not clear that Brandis wants the job.</p>
<p>Whatever the status of the speculation, it would be a very bad idea for Turnbull to despatch Brandis to London.</p>
<p>Let’s deal with the supposed advantages. They are said to be that it would remove an accident-prone minister; that Cormann, close to Turnbull and an excellent negotiator with the crossbench, could be elevated to Senate leader; and that Turnbull could freshen his team.</p>
<p>The first point must be conceded. As for the second, the crossbenchers already deal extensively with Cormann, who is deputy Senate leader. On the reshuffle: if Porter were switched from social services, a complex and sensitive job, to attorney-general, he would be of less value to the government in political terms.</p>
<p>The risks and downsides of giving Brandis the high commission post are obvious.</p>
<p>It would bring Turnbull a storm of criticism. London is a job to which former politicians are, quite reasonably, often sent. But the public’s current mood is deeply cynical, and Brandis is a damaged figure. Labor would have yet another field day.</p>
<p>Brandis is from Queensland, which is vital to the Coalition federally and has an approaching state election with One Nation rampant. Losing Brandis would take a Queenslander out of the cabinet, and the replacement isn’t obvious.</p>
<p>The outer ministry contains no one from Queensland. So to elevate another Queenslander into cabinet, Turnbull would have to reach down into the ranks of the assistant ministers – James McGrath (a mate of Turnbull), Jane Prentice, Karen Andrews, and Keith Pitt (a National, ruling him out).</p>
<p>It would be a big jump for any of the three Liberals. But not to fill Brandis’s cabinet spot with a Queenslander would be seen as a downgrading for the state.</p>
<p>Brandis to London would only harm Turnbull. Anyway, it would be a poor fit – in the post-Brexit era the next high commissioner should have economic and trade skills. Turnbull would do best to leave Brandis where he is for the time being and hold off on a reshuffle while the government tries to get steady on its feet. If it can.</p>
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<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 will overfly Western Australia twice next week, when he makes a brief dash to Indonesia to attend a conference of Indian Ocean Rim leaders.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/701352016-12-12T23:09:14Z2016-12-12T23:09:14ZWe should follow other countries’ lead on hate speech by changing 18C<figure><img src="https://images.theconversation.com/files/149579/original/image-20161212-31379-nvux88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Section 18C goes further than the laws of many other democracies by applying to 'offensive' and 'insulting' speech.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Parliamentary Joint Committee on Human Rights has held the first public hearing of <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia">its inquiry</a> into <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act: the law that makes it unlawful to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity.</p>
<p>Although there has been a great deal of <a href="https://theconversation.com/au/topics/section-18c-7896">debate about 18C</a>, surprisingly little has been said about how other democratic countries deal with hate speech. Looking at the laws of other democracies can help us better understand our own – what is unusual, what works well, and what may need to be changed.</p>
<p>Most democracies recognise that hate speech laws are important to protect the dignity of minority groups and maintain a successful multicultural society. But 18C also goes further by applying to “offensive” and “insulting” speech.</p>
<p>Changing these words to “vilify”, as Human Rights Commission head Gillian Triggs <a href="https://www.theguardian.com/australia-news/2016/nov/08/gillian-triggs-says-replacing-insult-and-offend-could-strengthen-18c">has suggested</a>, would make 18C clearer and bring it more in line with the laws of other democracies. It would also be a minor change that would allow 18C to continue its important work in curbing hateful acts.</p>
<h2>Lessons from abroad</h2>
<p>Among other democracies, the US is unusual in allowing for very limited restrictions on hate speech. The <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a> to the US Constitution says:</p>
<blockquote>
<p>Congress shall make no law … abridging the freedom of speech. </p>
</blockquote>
<p>The US Supreme Court <a href="https://supreme.justia.com/cases/federal/us/315/568/case.html">has held</a> that the law may prohibit “fighting words” – or words that are likely to incite “imminent lawless action” – but can’t go further than that. This standard is far less restrictive of free expression than 18C.</p>
<p>The Supreme Court <a href="https://supreme.justia.com/cases/federal/us/505/377/case.html">has also held</a> that even where the law prohibits “fighting words”, it cannot discriminate between different viewpoints by protecting particular groups against “imminent lawless action”. </p>
<p>So, the law cannot – for example – prohibit racist fighting words without also prohibiting non-racist fighting words; either all fighting words should be prohibited or none at all. The state must remain neutral between competing ideas, even if some of these ideas are racist.</p>
<p>Applying this approach, the US Supreme Court <a href="https://supreme.justia.com/cases/federal/us/395/444/">overturned the conviction</a> of a Klu Klux Klan member who had called for the return of African-Americans to Africa and Jews to Israel, and the <a href="https://supreme.justia.com/cases/federal/us/505/377/case.html">conviction</a> of a group of teenagers who had placed a burning cross in the yard of an African-American family.</p>
<p>However, very few democracies have followed the lead of the US on this issue. Most democracies recognise that the state can take sides in the contest of ideas and promote the values of respect and tolerance through hate speech laws.</p>
<p>In Canada, for example, the <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-72.html#h-93">law</a> prohibits public statements that wilfully promote hatred towards identifiable groups – a standard that is also less restrictive of free expression than 18C. </p>
<p>Canada’s Supreme Court upheld this law in a <a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/695/index.do">case</a> where a school teacher had promoted hatred of Jews in his lessons. The court said the law’s purpose was to:</p>
<blockquote>
<p>… bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.</p>
</blockquote>
<p>Likewise, in the UK the <a href="http://www.legislation.gov.uk/ukpga/1986/64/part/III">law</a> prohibits “threatening, abusive, or insulting” words or behaviour. The reference to “insulting” words might sound like 18C, but the law also says the person must intend to “stir up racial hatred”, or it must be likely that “racial hatred” will be “stirred up”. These words make the law less restrictive of free expression than 18C.</p>
<p>Germany goes further than many democracies in limiting free expression by, for example, prohibiting the display of Nazi flags and badges. But even the German <a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1241">hate speech law</a> does not apply to expression that is merely offensive. Instead, it refers to attacks on the:</p>
<blockquote>
<p>… human dignity of others by insulting, maliciously degrading or defaming parts of the population …</p>
</blockquote>
<h2>Is 18C too broad?</h2>
<p>From this snapshot, it is clear 18C is an unusual provision. Most hate speech laws do not apply to “offensive” or even “insulting” expression.</p>
<p>But 18C is also unusual in dealing with hate speech through the civil law rather than the criminal law. This means someone who breaches the law may have to apologise or pay damages, but doesn’t commit a crime. </p>
<p>In contrast, the laws in comparable countries outlined above are criminal laws. There are also exceptions to 18C, in <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">Section 18D</a>.</p>
<p>The reason why hate speech laws don’t normally apply to “offensive” or even “insulting” speech is because democracies recognise that offence and insult are sometimes part of political debate. In a democracy, ideas should be open to challenge, even deeply-held ideas on sensitive issues. We should be concerned about laws that inhibit frank discussion, whether they are civil or criminal in nature.</p>
<p>Australia’s Federal Court has recognised this by <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">interpreting</a> 18C so that it applies only to:</p>
<blockquote>
<p>… profound and serious effects, not be likened to mere slights. </p>
</blockquote>
<p>This seems to strike to a good balance between free expression and the protection of minorities.</p>
<p>Some might say the Federal Court’s interpretation of 18C means that no change is necessary. But the law should be clear, especially when it is as controversial as 18C.</p>
<p>A minor change, substituting “vilify” for “offend” and “insult”, would bring 18C more in line with the laws in other democracies without undermining its effectiveness.</p><img src="https://counter.theconversation.com/content/70135/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson 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>A minor change, substituting ‘vilify’ for ‘offend’ and ‘insult’, would bring Section 18C more in line with similar laws in other democracies without undermining its effectiveness.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/686652016-11-11T02:42:48Z2016-11-11T02:42:48ZVIDEO: Michelle Grattan on Australia’s reaction to the Trump victory<figure>
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<p>Donald Trump’s triumph in the US presidential contest caught many off-guard, including Australia’s politicians. Michelle Grattan tells University of Canberra vice-chancellor Professor Deep Saini the predictions within the government were that Hillary Clinton would win.</p>
<p>“There was a feeling that they knew what was happening and they were basically across the coming agenda from the United States. Now of course the Trump victory has meant that there’s a great deal of re-thinking and uncertainty,” Grattan says.</p>
<p>“It’s interesting that Malcolm Turnbull was very quick to ring the president-elect, congratulate him, note that they were both former businessmen who’d gone into politics quite late in their careers and try to establish an early relationship. But behind this there is a good deal of uncertainty about knowing how this is going to affect the world and our region in particular.”</p><img src="https://counter.theconversation.com/content/68665/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>Donald Trump’s triumph in the US presidential contest caught many off-guard, including Australia’s politicians.Michelle Grattan, Professorial Fellow, University of CanberraPaddy Nixon, Vice-Chancellor and President, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/678462016-10-28T02:28:25Z2016-10-28T02:28:25ZVIDEO: Michelle Grattan on housing affordability<figure>
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<p>Treasurer Scott Morrison this week reignited the discussion about housing affordability in Australia. The question is: will the government be willing to bring about meaningful reform?</p>
<p>Michelle Grattan tells University of Canberra deputy vice-chancellor of education Nick Klomp that Scott Morrison is putting all the emphasis on the supply side of housing.</p>
<p>“He’s saying he’ll take up with state treasurers, when he meets them before the end of the year, the whole question of land planning regulation. Now of course that’s a state issue. He’s particularly anxious to keep the emphasis off the demand side, because of course there was the whole election debate about negative gearing. Labor had a strong policy to curb negative gearing. The government opposed that,” Grattan says.</p>
<p>“It will be quite difficult, I think, for Scott Morrison to contain this debate and stop it really spreading out into a whole lot of areas that he doesn’t want to go to.”</p><img src="https://counter.theconversation.com/content/67846/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>Treasurer Scott Morrison this week reignited the discussion about housing affordability in Australia. The question is: will the government be willing to bring forward meaningful reform?Michelle Grattan, Professorial Fellow, University of CanberraNicholas Klomp, Deputy Vice-Chancellor, Education, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/676372016-10-25T02:40:16Z2016-10-25T02:40:16ZBrandis mishandles a fight he should never have had<p>The dramatic break between the Attorney-General and the Solicitor-General – which culminated spectacularly in Justin Gleeson’s resignation on Monday – was a saga of misjudgments and mismanagement.</p>
<p>It has cost George Brandis reputation, lost the services to the Commonwealth of a highly respected law officer, and seen Gleeson out of the job he prized. </p>
<p>As Gleeson wrote in his trenchantly-worded resignation letter, there had been an irretrievable breakdown in the relationship between the first and second law officers.</p>
<p>The situation had gone beyond salvaging. Gleeson chose to quit while not retreating one iota from the case he had made against Brandis. </p>
<p>By so doing, he struck another blow against the Attorney, who is also likely to face sharp criticism from the non-government majority on the Senate inquiry into the affair, which is due to report by November 8. </p>
<p>The story started when Gleeson wrote to Brandis last November seeking clarification about the advisory process. </p>
<p>He put forward complaints. Brandis had used his advice on the draft stage of citizenship legislation - for the purpose of political argument – when he hadn’t been asked for advice on the final bill. </p>
<p>Also he was clearly unhappy that the government was looking more widely for advice – he instanced not being consulted to that point on marriage legislation. </p>
<p>Brandis convened a meeting, which canvassed a range of matters. Subsequently, Brandis decided to issue a formal “direction” that all requests for the Solicitor-General’s advice had to go through the Attorney-General’s office. </p>
<p>This sent Gleeson, obviously already concerned that he might be being sidelined, ballistic. </p>
<p>He hadn’t been warned before the direction was tabled; he believed he hadn’t been consulted as required; he thought the direction illegal. </p>
<p>Brandis, on the other hand, maintained he was simply bringing practice in line with how he read the law, and insisted the earlier discussion amounted to adequate consultation.</p>
<p>Brandis’s fundamental mistake was the direction, which he should have anticipated would be provocative and challenged in legal circles. He didn’t think through the wider consequences. </p>
<p>Brandis also made a serious lapse in not forewarning Gleeson, especially given his obvious sensitivity around his position. It would have been better to have had the argument ahead of the tabling rather than afterwards. </p>
<p>But then, damage done, Brandis failed to find a credible way out. </p>
<p>If, as he said, he thought he was doing nothing radical, Brandis should have negotiated a retreat or compromise when things began to blow up. </p>
<p>For example, if he believed the direction encompassed the process required by the law he could have proposed re-jigging that law. He hinted, when giving evidence to the Senate inquiry, that perhaps the Senate committee should look at the law. </p>
<p>Retreating might have been hard for someone with Brandis’s personality, but the final outcome has been worse. </p>
<p>For his part, Gleeson was not faultless. </p>
<p>When Brandis wrote to him in August inviting him to put his complaints, he didn’t take up the offer. </p>
<p>More importantly, when Labor’s Shadow Attorney-General Mark Dreyfus contacted Gleeson during the election, the Solicitor-General handled this badly.</p>
<p>Dreyfus asked whether Gleeson had been consulted about the direction and whether he agreed with it. </p>
<p>Gleeson answered no to both questions. </p>
<p>He should have either declined to engage with Dreyfus or if he chose to do so, he ought to have informed the government. </p>
<p>Whatever legal rationale Gleeson had, his action didn’t pass the common sense test. The caretaker period requires both abundant caution and maximum transparency from Commonwealth officers. </p>
<p>Unless he is a total political innocent, Gleeson must have known that Dreyfus was making a political call. </p>
<p>Some in the government might be glad to see the back of Gleeson – Coalition senators treated him with certain contempt when he appeared before them – but for Malcolm Turnbull the affair is another setback. </p>
<p>It’s a very bad look for the government when the second law officer has resigned on a point of principle with a full-on attack on the Attorney-General. It’s also yet another distraction from what the government wants to talk about. </p>
<p>As for Brandis, he ends up losing all round. The political assault on him will go on for some time and the Senate appears certain to quash the direction. The damage has been self-imposed. </p>
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The dramatic break between the Attorney-General and the Solicitor-General – which culminated spectacularly in Justin Gleeson’s resignation on Monday – was a saga of misjudgments and mismanagement. It has…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/675692016-10-24T22:15:01Z2016-10-24T22:15:01ZRole of Solicitor-General has been damaged and the government must work to fix it<figure><img src="https://images.theconversation.com/files/142988/original/image-20161024-28423-19sd9mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former Solicitor-General Justin Gleeson has resigned his post.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>On Monday night, over 250 people gathered to <a href="http://www.gtcentre.unsw.edu.au/events/celebrating-100-years-commonwealth-solicitor-general">celebrate</a> 100 years since the appointment of the first Commonwealth Solicitor-General, <a href="http://adb.anu.edu.au/biography/garran-sir-robert-randolph-410">Sir Robert Garran</a>. The event marked a century of an <a href="http://www.bloomsbury.com/au/role-of-the-solicitor-general-9781849467124/">office</a> that is widely accepted as being integral to government under the rule of law.</p>
<p>But just hours earlier, the Solicitor-General, Justin Gleeson SC, had <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Resignation-of-mr-justin-gleeson-sc.aspx">resigned</a>, citing irreconcilable differences with the Attorney-General, Senator George Brandis QC.</p>
<p>Gleeson is a <a href="http://www.smh.com.au/federal-politics/political-news/solicitorgeneral-justin-gleeson-the-man-at-war-with-george-brandis-20161005-grvxil.html">leading lawyer</a> from the Sydney Bar: a highly respected advocate and legal mind both in Australia and internationally. The government’s loss of his legal acumen and integrity is the first, immediate blow.</p>
<p>Less immediately, Gleeson’s resignation, and the events that preceded it, strike at the office itself. The government needs to take urgent but careful steps to restore confidence in the office, and heal the damage that has been caused over the last few months.</p>
<h2>Trust, respect and independence</h2>
<p>In his letter of resignation, Gleeson explained that:</p>
<blockquote>
<p>[T]he best interests of the Commonwealth can be served only when its first and second Law Officers enjoy each other’s complete trust and confidence within a mutually respectful relationship.</p>
</blockquote>
<p>He is undoubtedly correct. The statute that creates the Solicitor-General, the <a href="https://www.legislation.gov.au/Details/C2012C00303">Law Officers Act 1964</a>, offers some protection for the Second Law Officer’s independence in the form of a statutory guarantee of tenure. However, the proper functioning of the office requires the trust, confidence, respect and good faith of the government. These should be exemplified, championed, protected and defended by the first Law Officer, the Attorney-General.</p>
<p>What has been revealed through the <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/SolicitorGeneralOpinion">Senate’s Legal and Constitutional Affairs Committee </a> inquiry is that the relationship between Brandis and Gleeson now lacks these attributes.</p>
<p>It is difficult to determine when exactly that loss of trust occurred. On the public record there are now accusations from the Solicitor-General that the Attorney-General misrepresented his advice to Parliament. That the Attorney-General failed to seek his advice on important legal issues and instead took advice from elsewhere. That the Attorney-General issued a <a href="https://www.legislation.gov.au/Details/F2016L00645/Explanatory%20Statement/Text">direction</a> regarding the process for accessing the Solicitor-General’s advice that might be unlawful, and in any event radically changed and hindered the Solicitor-General’s ability to fulfil his role. And finally, that the Attorney-General lied about whether or not the Solicitor-General was consulted prior to the issue of that direction.</p>
<p>The Attorney-General, in turn, hotly disputed the accusations of the Solicitor-General. He raised his own concerns that the Solicitor-General had inappropriately revealed details of the legal advice he had provided, and had spoken to a member of the opposition during the caretaker period in the lead-up to the 2016 election.</p>
<p>The dysfunctional relationship between the two Law Officers was displayed when both men gave public evidence before the Senate Committee this month, which is investigating the circumstances surrounding the issue of the Attorney-General’s direction. The Committee is due to report on November 8.</p>
<p>As the Solicitor-General rightly identified, distrust and defensiveness between the Solicitor-General and the Attorney-General undermines the Solicitor-General’s ability to do his job.</p>
<p>As there is no statutory requirement to seek the advice of the Solicitor-General, where trust is eroded, a government may simply fail to consult a Solicitor-General. This concern is not new. In the US context, <a href="https://kansaspress.ku.edu/subjects/law/978-0-7006-0530-9.html">Professor Nancy Baker</a> has observed that neutral, or fiercely independent, officeholders may be isolated from policy development by government because of erosion of trust in the office’s commitment to the government’s agenda.</p>
<p>This trust and respect must exist so the government will seek out his or her advice before taking action, but also so that the government will follow and respect that advice. This is part of ensuring the government is not shopping around for legal opinions that supports its political agenda.</p>
<p>That is, of course, not to say that the Solicitor-General is invariably right on all legal questions. But no lawyer ever is. That is not the point. If there was no final and authoritative legal adviser within government – with an understanding of the historical legal position of government, the whole of government issues, and extensive expertise and experience in government law, and statutory guarantees of independence – the government could simply pick and chose its legal advice as convenient.</p>
<p>The Solicitor-General must give his or her legal view to the government with the utmost independence from the political desires of government. This is what gives the office its value. It is not enough to be a close and trusted adviser to the government unless that advice is provided independently. As Western Australian Solicitor-General Grant Donaldson QC explained:</p>
<blockquote>
<p>I can’t conceive of a circumstance if you have a good Attorney-General and a good government, where they want you to be anything other than independent. … [Governments] don’t want public servants or Solicitors-General to be giving them advice they want to hear. They’ve got political advisers who can do all of that sort of stuff.</p>
</blockquote>
<p>What becomes clear then is that the Solicitor-General treads a delicate path. He or she must be trusted and respected within government, so as to be sought out when significant legal issues arise. But the Solicitor-General must also provide robustly independent advice when it is sought.</p>
<p>There is an obvious fragility in the current arrangements, so heavily reliant as they are on properly functioning relationships. Given this, the Attorney-General’s treatment of the Solicitor-General, culminating in the resignation of the Solicitor-General yesterday, signals a dangerous precedent for the future.</p>
<h2>Where to from here?</h2>
<p>The government must now tread with both extreme urgency and extreme caution to ensure that it has, into the future, an independent, trusted and respected Solicitor-General.</p>
<p>First and foremost, this will only be achieved by the appointment of a highly respected, eminent and apolitical lawyer to the role. The government simply cannot play politics with this appointment.</p>
<p>Once appointed, that officeholder must work with the government to ensure the office is brought into the trust of government, ensuring that the advice of the office is sought when appropriate. But that officeholder must also work to ensure the government understands the role and respects the importance of its independence. This cannot be the task of the Solicitor-General alone. The Prime Minister, the Attorney-General, other Ministers, as well as the public servants and the other government lawyers working within the Attorney-General’s department must work to achieve this.</p>
<p>Part of this process must involve the revocation of the Attorney-General’s direction regarding the process for accessing the Solicitor-General’s advice. There remain serious concerns over its legality, which have now been expressed by a number of former Solicitors-General. Leaving that to one side, there is a real <a href="http://insidestory.org.au/a-fragile-relationship">danger</a> it will operate to discourage or even actively restrict those in government from accessing the Solicitor-General.</p>
<p>The Attorney-General should revoke the direction immediately. If he does not, it appears likely that the Senate will disallow it. Waiting for that, however, would be further and unnecessarily damaging to the office.</p>
<p>Finally, the government needs to consider other ways to reduce the possibility that similar tensions may arise in the future. This may include the reform of the current practice of refusing to release the Solicitor-General’s advice to the Parliament.</p>
<p>As has now been revealed, back in November last year, Gleeson wrote to Brandis raising his concerns that the current practice, particularly with respect to the advice he provided on the government’s citizenship-stripping proposal, may be resulting in statements to the Parliament that are possibly misleading as to the nature and content of his advice.</p>
<p><a href="https://theconversation.com/releasing-governments-advice-would-help-parliament-better-scrutinise-laws-50593">Reform of this practice</a> would have twin benefits. It would ensure Parliament is better informed in its consideration of proposed legislation. But, as we have now seen, it would reduce the possibility that the government is misrepresenting the Solicitor-General’s advice to further its own political agenda.</p><img src="https://counter.theconversation.com/content/67569/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council.</span></em></p>Justin Gleeson’s resignation strikes at the role of the Solicitor-General in Australia, and the government needs to take steps to restore confidence in the office.Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/673032016-10-19T00:53:42Z2016-10-19T00:53:42ZArts training is an essential part of an innovative nation<figure><img src="https://images.theconversation.com/files/142274/original/image-20161019-20336-3ok6c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">More than 50 arts training programs across the nation, including circus, may no longer be supported by the federal government. </span> <span class="attribution"><span class="source">Julian Smith/AAP</span></span></figcaption></figure><p>The past two years have not been happy ones for the arts sector in Australia. It all began in early 2014 with federal Ministers Brandis and Turnbull telling artists at the Sydney Biennale that they were ungrateful and selfish to protest about the role of Transfield in Nauru. </p>
<p>It then emerged that the Federal Minister for the Arts, George Brandis, believed he could do everything better in arts funding than the existing structures. He began his campaign by taking away a large portion of literature funding from the Australia Council in December 2014. </p>
<p>He then “trumped” this move by taking a third of the Council’s ongoing arts funding in May 2015 to set up his own ministerial fund for the arts naming it the National Program for Excellence in the Arts. Brandis’s concept of “excellence” though was tainted by a limited and élitist perspective of what constitutes the arts and by demonstrating overt favouritism and protectionism towards large arts organisations.</p>
<p>The arts sector protested and a Senate Inquiry was instituted. More than 3000 submissions were received by the Inquiry. The Coalition Government did not participate in the process and appeared to be ignoring the furore in the arts sector. However, with a new Prime Minister in place in late 2015, it was not long before a new Minster for the Arts emerged, Mitch Fifield. </p>
<p>In November 2015, Fifield announced he would give back a portion of the money taken from the Australia Council. However, he kept the rest and changed the name from Program of Excellence to Catalyst. Then there was an election in May 2016 and Minister Fifield’s Catalyst Fund played an interesting electoral role in allocating arts funding to some unusual recipients. </p>
<p>Further, with its reduced funding, the Australia Council cancelled project funding rounds for small groups and individuals in 2015 and then cut funding to over 60 arts organisations across the country in May 2016. There have been <a href="https://dailyreview.com.au/fifield-set-restore-raided-arts-funds-australia-council/50036/">recent rumours</a> that more of the Ministerial funds might be returned to the Australia Council but as yet there is no evidence of this.</p>
<p>But sadly this is not the only action that will harm and continue to damage the arts sector. The Federal Government is now considering cutting funding to students who wish to undertake creative arts training. Education Minister Simon Birmingham has said he believes <a href="http://www.senatorbirmingham.com.au/Media-Centre/Media-Releases/ID/3238/New-VET-Student-Loans-course-list-focussed-on-employment-outcomes">training in the creative arts is a ‘lifestyle’ choice</a> and cannot lead to a satisfactory career or any economic outcome. He says,</p>
<blockquote>
<p>VET Student Loans will only support legitimate students to undertake worthwhile and value-for-money courses at quality training providers.</p>
</blockquote>
<p>As the government’s priorities are related to demonstrating economic outcomes, they say that their preference is for technology programs and agricultural science courses related to the STEM educational model.</p>
<p>In this context creative arts training is perceived as irrelevant and Minister Birmingham intends to cut loan support for students to undertake this form of education and training. If this occurs, more than 50 arts training programs across the country will no longer be supported. These include programs in ceramics, photography, dance, acting, animation, all forms of design, circus, music, film, fashion and journalism.</p>
<p>To describe creative arts training as a “lifestyle” choice in my view demonstrates a lack of knowledge of what is involved and what is produced. There seems to be no understanding or recognition that artists/arts workers are trained professionals who are highly skilled, knowledgeable and adept. They are also highly employable in many industry sectors – not just the arts.</p>
<p>Australia talks constantly about supporting innovation and wanting to be seen as a “smart” country. Training people in the creative arts is a sure way of doing this. Confining education only to technology and the sciences does not create a nation that is necessarily clever or innovative.</p>
<p>Arts training provides the capacity to problem solve, think outside the square, be divergent and come up with new and untried solutions. These are skills that are essential for innovation and change. The arts are a basic foundation of the culture of this country. </p>
<p>Australia is presented internationally by its artists, by its films, by its literature - it is the soul of the country. If the arts training sectors are not funded by this Federal Government, there is a clear message that the government does not think that the arts matter in Australia and, ipso facto, Australian arts and culture does not matter to the world.</p><img src="https://counter.theconversation.com/content/67303/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Jo Caust has previously received funding from the Australia Council and the Australian Research Council. She is a member of the Arts Industry Council (SA) and NAVA.
</span></em></p>The past two years have not been happy ones for the arts sector in Australia. It all began in early 2014 with federal Ministers Brandis and Turnbull telling artists at the Sydney Biennale that they were…Jo Caust, Associate Professor and Principal Fellow (Hon), The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/670522016-10-14T01:51:42Z2016-10-14T01:51:42ZVIDEO: Michelle Grattan on Malcolm Turnbull’s trouble with marriage equality<figure>
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<p>Now that Labor has shot down the government’s proposed plebiscite on same-sex marriage, the issue of marriage equality threatens to haunt Malcolm Turnbull’s prime ministership. </p>
<p>Michelle Grattan tells University of Canberra senior lecturer in political science Michael de Percy that Turnbull is under pressure from Labor and same-sex marriage advocates to allow a free parliamentary vote. </p>
<p>“But the Liberal conservatives are making this really a bottom line issue. They will not tolerate a free vote letting the change to the law go through parliament and it would really blow the party up if Malcolm Turnbull did move to that position,” Grattan says.</p>
<p>“At the moment, the issue just simmers away there and maybe nothing will happen until the next election. Then of course the parties will have to put forward election policies and it’s really pretty untenable for the Liberal Party to go again to a poll with a plebiscite, which has become, although initially popular with the community, more unpopular as time has passed. </p>
<p>"So it’s just one of those real burrs under the saddle for Malcolm Turnbull.”</p><img src="https://counter.theconversation.com/content/67052/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>Now that Labor has shot down the government’s proposed plebiscite on same-sex marriage, the issue of marriage equality threatens to haunt Malcolm Turnbull’s prime ministership.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/670122016-10-13T12:49:20Z2016-10-13T12:49:20ZPolitics podcast: Mark Dreyfus on George Brandis’ solicitor-general controversy<p>A contentious move by Attorney-General George Brandis to restrict access to legal advice from the solicitor-general is continuing to raise controversy and questions about its legal validity. Shadow Attorney-General Mark Dreyfus tells Michelle Grattan that he sees this as “the most extraordinary power grab by the Attorney-General in the history of the office”.</p>
<p>“We already know that he’s held up requests. Why? I can’t say, but the deputy secretary of the department giving evidence to the Senate committee last week said that one of the requests had taken ten days. </p>
<p>"Now very often it’s urgent that you get legal advice. It’s never before been the position that secretaries of commonwealth departments, other ministers, the prime minister, the governor-general have been told that the written consent of the attorney-general is necessary before they get the advice of the solicitor-general,” he says.</p>
<p>The solicitor-general has to be the primary source of advice on the most important matters of the government, Dreyfus says. </p>
<p>“I’m not for a moment suggesting that in a complex, large government with 168,000 Australian public servants that every single legal question that the government comes into contact with has to go to the solicitor-general. </p>
<p>"Clearly that at a practical level couldn’t be the case but matters like the plebiscite bill, which the parliament is now dealing with, or the prorogation of parliament that occurred earlier this year or the citizenship bill – they are matters that the government should go to the solicitor-general [with] first.”</p>
<p>On the question of whether Labor should stick with its planned policy of enforcing a binding vote on marriage equality after the next election, Dreyfus says he thinks it is a “human rights matter”.</p>
<p>“That’s my own view and I argued in favour and voted in favour of the binding vote and that would remain my position … and let’s see if it’s the position that would give difficulty because by the time of the next Labor conference, this matter may well have been dealt with in the parliament.”</p>
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<p><em>Music credit: “Storytime” by Dlay on the Free Music Archive</em></p><img src="https://counter.theconversation.com/content/67012/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>A contentious move by George Brandis to restrict access to legal advice from the solicitor-general is continuing to raise controversy and questions about its legal validity.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/669792016-10-13T03:59:25Z2016-10-13T03:59:25ZThe new Australia Council Board has a chance to be better than the last<figure><img src="https://images.theconversation.com/files/141560/original/image-20161013-16246-1ge3jo7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A changing of the guard...will it make a difference?</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The organisation Senator George Brandis described as having an “iron wall” around it, is refreshing its sentinels. This week’s announcement of <a href="http://www.australiacouncil.gov.au/news/media-centre/media-releases/australia-council-board-appointments/">four new appointments</a> to the Australia Council Board represents a change of focus from last year when, you may recall, the agency had other things on its mind.</p>
<p>I once confided to a friend that I could tell the level of political pressure the Council was under by how closely the brow of Rupert Myer, its long-suffering Chair, matched the colour of his shirts. These days, I’m glad to say, it’s returned to its normal shade. </p>
<p>What happened with <a href="https://theconversation.com/out-with-the-npea-in-with-catalyst-expert-response-51026">Catalyst</a>, <em>nee</em> the <a href="https://theconversation.com/au/topics/national-programme-for-excellence-in-the-arts-17421">National Programme for Excellence in the Arts</a>, was neither rational nor right, but a misjudgement by an ill-informed Minister who did a deal of damage and made no lasting positive contribution to his portfolio.</p>
<p>With Senator Brandis now displaying as Attorney-General the same pachydermic egotism and semantic chicanery as he did with the arts, the cultural sector can be confirmed in its view that he is a Bad Egg.</p>
<p>What next for the Council? The new appointments come at a time when it confronts a flinty task of redefinition. While the changes that began with the <a href="http://creativeaustralia.arts.gov.au/assets/australia-council-review-report-survey-outcomes-20130419.pdf">2012 James and Trainor Review</a> and led to the abolition of its art form boards, have been rung through, the events of last year shook the perception and the self-perception of the sector. In brief: there’s not a lot of trust out there.</p>
<p>The Council plays piggy-in-the-middle between three sets of unforgiving forces. On the one hand, it represents the arts to the government. On the other, it represents the arts to the public. And on a third, perpetually smarting hand, it represents the government to the arts.</p>
<p>Making sense of these varied stakeholder needs is like a cultural version of the chicken/fox/sack-of-corn conundrum. It is the job of the Council to riddle the challenge. What happened last year must be inwardly digested and turned into lasting cognitive capital. The Council must grow a policy memory and the Board must be its best expression. Put simply, what happened under Senator Brandis must never happen again.</p>
<p>The Board is a round dozen of culture types from all over the country. Like most arts boards these days there is an abundance of “suits”. With the departure of Robin Archer as Deputy Chair, it leaves just one senior practising artist. Is that enough? No. You wouldn’t run a hospital board without working doctors on it, or a school board without full-time teachers.</p>
<p>No one would argue that such artists have superior insight into the cultural policy process, but presumably they shouldn’t be left out of it. It would be a good recruiting move, too, for a Council that has to regain the sector’s confidence.</p>
<p>With the old art form boards gone, the Council’s moral and intellectual leadership now lies with its Board. In the 1980s, with <a href="http://www.jamesmccaughey.com/bio/james/">James McCaughey</a> as chair of the Theatre Board, <a href="https://theconversation.com/profiles/gary-foley-8251">Gary Foley</a> as chair of the Aboriginal Arts Board and <a href="http://musicinaustralia.org.au/index.php?title=Letts,_Richard">Dick Letts</a> as chair of the Music Board, there was formidable policy activism at that level.</p>
<p>Today this is seen as a problem. It was seen that way then too – by the government. The art form boards were often autonomous in their opinions and actions, and if they could be erratic, they were also pugnacious. They were difficult for governments to intimidate. If the arm’s length independence of the Council had a hard edge to it, it was to be found in the attitude of these art form boards.</p>
<p>Responsibility for maintaining the arm’s length relationship is now the Board’s, and that means more than Friday night drinks with Liberal staffers and birthday cards to Senator Mitch Fifield (who is 50 next year, the same age as the Council).</p>
<p>It means a genuine vision for the sector – thoughtful, inclusive and operationally valid. It means addressing the locked-in funding problem around the <a href="http://www.australiacouncil.gov.au/symphony/extension/richtext_redactor/getfile/?name=c2da6fb09dc09b1bff708a93fa8e0a82.pdf">Major Performing Arts Framework</a> that Senator Brandis neither understood nor cared to. It is this Framework that ensured cuts from two successive federal budgets fell <a href="https://theconversation.com/carnage-in-the-arts-experts-respond-to-the-australia-council-cuts-59368">solely on smaller arts organisations</a>. It is this Framework the James and Trainor Review was supposed to open up.</p>
<p>Instead, after the election of a Liberal government in 2014, the opposite happened. The resentment and distrust this bred will continue to have a deleterious effect on relations in the sector until an effort is made to understand the problem on its own terms and not through witless buzz words, be they today’s “innovation” or yesterday’s “excellence”.</p>
<p>The Council has no Harry Potter spell to double its cash in the bank. Nor can it walk away from long-standing commitments to major institutions and programs. What it can do is display meaningful understanding of the systemic issues affecting cultural subsidy, and respond with a polite “—– off” if the government comes touting its own “priorities” and treating the agency like a doormat.</p>
<p>Not on. There’s no point in having an expert body unless you allow it to exercise its expert judgement.</p>
<p>As the Board decide how to react to the news that must come eventually that Catalyst funding is being handed back to them (weary resignation or subdued glee?), it should ponder the examples of past Council heads like <a href="http://www.smh.com.au/comment/obituaries/arts-patron-who-fought-bureaucracy-20090303-8nca.html">Jean Battersby</a>, <a href="http://oa.anu.edu.au/obituary/coombs-herbert-cole-nugget-246">Nugget Coombs</a>, <a href="http://www.vectorleadership.com/pages/bio">Timothy Pascoe</a> and <a href="http://www.australianbiography.gov.au/subjects/horne/">Donald Horne</a>.</p>
<p>One, possibly two of these people, were conservatives, so it’s not a question of Labor bias. It’s about getting the government out of the Council’s face, so it can pick up where it left off in 2014 and deal with the difficult job that awaits.</p>
<p>Money’s tight, tempers are frayed, and the future is gloomy, but stiff cheddar: when were they not?</p><img src="https://counter.theconversation.com/content/66979/count.gif" alt="The Conversation" width="1" height="1" />
The organisation Senator George Brandis described as having an “iron wall” around it, is refreshing its sentinels. This week’s announcement of four new appointments to the Australia Council Board represents…Julian Meyrick, Professor of Creative Arts, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/661192016-10-10T19:02:00Z2016-10-10T19:02:00ZHas social media really shifted the line between personal and private forever?<figure><img src="https://images.theconversation.com/files/140447/original/image-20161005-15903-1jz0hdk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The death of privacy and the erosion of the personal sphere is an internet meme, often attributed to social media.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p><em>Social media has revolutionised how we communicate. In this series, we look at how it has changed the media, politics, health, education and the law.</em></p>
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<p>In the past, so the story goes, we had privacy and dignity – but we kissed it goodbye with a few keystrokes on social media. Life is a bit more complicated than that.</p>
<p>The death of privacy and the erosion of the personal sphere is an internet meme. It is often attributed to social media – <a href="https://www.propublica.org/article/breaking-the-black-box-what-facebook-knows-about-you">Facebook</a>, Pinterest, Flickr, Growlr, Twitter. These are digital communication tools that allow everyone to be an author and connect for free. It is authorship without the burdens of reflection or responsibility, alongside unaccountable surveillance of those authors, friends and readers.</p>
<p>If we step back from our Twitter feeds, we can see that reality is more complicated. Social media does not eradicate the line between public and private. Instead, along with other technologies, it shifts the line in ways that require thought rather than unreflexive condemnation or celebration.</p>
<h2>Don’t rush to judge</h2>
<p>Few people throughout history have enjoyed much privacy. They were subject to surveillance by family and peers. </p>
<p>The village gossip or neighbourhood busybody spread the news – true or otherwise – as quickly as the people at Instagram or the Daily Telegraph. </p>
<p>The thin red line between personal and public was often a matter of shutting the door or trusting that governments simply lacked the administrative capacity to watch most people.</p>
<p>Social media provides opportunities for awareness about the powerful – governments, corporations and individuals who traditionally sheltered behind hedges, guard dogs and barristers. One example is the information – accurate or otherwise – the <a href="https://panamapapers.icij.org/the_power_players/">Panama Papers</a> on tax evasion provided.</p>
<h2>Resetting the line</h2>
<p>The world of social media is also one in which scandal, lies and defamation can sprint around the world overnight, with truth – like the law – limping in the rear. It is a world where a “public” sphere for many people is smaller, given they can choose to engage exclusively with the <a href="http://policyreview.info/articles/analysis/should-we-worry-about-filter-bubbles">like-minded</a> in a digital <a href="http://www.npr.org/sections/alltechconsidered/2016/07/24/486941582/the-reason-your-feed-became-an-echo-chamber-and-what-to-do-about-it">echo chamber</a>.</p>
<p>It is a world where we need personal responsibility, digital literacy and law reform. </p>
<p>We do not, for example, need to gift our attention to the purveyors of disinformation or abusers of someone else’s privacy. We need to be conscious that information shared through social media leaves our control, and the consequences now or in future may be serious.</p>
<p>We need to critique what we see rather than naively assuming it must be true because it comes from <a href="https://www.wired.com/2016/07/wikileaks-officially-lost-moral-high-ground/">Julian Assange</a> or <a href="http://www.nytimes.com/2016/10/01/us/politics/donald-trump-alicia-machado.html">Donald Trump</a> or is about a Kardashian. But we also need law reform and meaningful enforcement. </p>
<p>It is puzzling that Attorney-General George Brandis <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/ThirdQuarter/Amendment-to-the-Privacy-Act-to-further-protect-de-identified-data.aspx">proclaims</a> “the privacy of citizens is of paramount importance” but resolutely ignores a succession of practical recommendations from the <a href="http://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc-report-123">Australian Law Reform Commission</a> and other bodies. </p>
<p>If you are a victim of <a href="https://theconversation.com/ending-revenge-porn-how-can-we-stop-sexual-images-being-used-to-abuse-54733">revenge porn</a> you should not have to pray that you live in a state that <a href="http://www.abc.net.au/news/2016-09-05/criminalising-%27revenge-porn%27-in-nsw-a-step-closer/7813446">does</a> have relevant law. You should demand remedies if your <a href="http://www.cso.com.au/article/607712/telstra-defensive-reverse-engineering-medicare-data-highlights-healthcare-security-risks/">health</a>, financial, <a href="https://theconversation.com/a-tale-of-vigilante-justice-adulterers-hackers-and-the-ashley-madison-affair-46511">dating</a> or <a href="http://www.cnbc.com/2016/09/22/yahoo-data-breach-is-among-the-biggest-in-history.html">other</a> data goes AWOL. </p>
<p>In the absence of such remedies your private sphere is not going to be adequately protected, particularly by an egregiously under-resourced and timid <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2657959">Information Commissioner</a>.</p>
<p>Responsibility as citizens also means thinking hard about where we draw the line. Does the threat of terror mean we should all be suspects, all subject to undisclosed official access to our <a href="https://theconversation.com/crossed-wires-isps-are-already-struggling-to-retain-our-metadata-49043">metadata</a>?</p>
<p>If we have a life online using social media should we be restricting what the operators of each service can do with our data and when they can share, particularly if the sharing is not disclosed? </p>
<p>Should we have an opportunity to live down past embarrassments or even offences, through a <a href="https://groningenjil.files.wordpress.com/2015/04/grojil_vol2-issue2_rengel.pdf">right to obscurity</a>?</p>
<h2>Looking after yourself and others</h2>
<p>We know that marketers, employers and intelligence agencies mine data about our presence online, for example, profiling our friends by their affinity with us. We know that stalkers and other criminals on occasion misuse social media to track or harass.</p>
<p>One response has been <a href="http://firstmonday.org/article/view/5615/4346">pseudonymity</a>. People use spoof names and other identifiers. There are lots of 99-year-old residents of Antarctica with names such as Goldie Locks. People use multiple email addresses, assuming that some will be <a href="http://www.abc.net.au/news/2016-10-05/yahoo-secretly-scanned-customer-emails-for-us-intelligence-sour/7904074">mined</a> and some can be used as filters to quarantine spam. </p>
<p>Governments have responded by encouraging truth in social media profiles, for example, to criminalise adult predators who are pretending to be minors in grooming children.</p>
<p>Another response has been old-fashioned common sense. Some people don’t publish images of themselves or their children. They don’t “tag” people on Facebook. They publish trivial rather than sensitive information. They don’t disclose information about misdemeanours that might be sighted by a current or future employer.</p>
<p>A third response has been despair, encapsulated in the meme that “your privacy has gone, so get over it”. That defeatism is fostered by digital activists like Assange, whose response to the powerful’s lack of accountability is to be accountable only to themselves. </p>
<p>It is also fostered by theorists who <a href="http://www.theage.com.au/news/opinion/privacy-is-the-last-thing-we-need/2007/04/21/1176697146936.html">dismiss</a> privacy as something that only matters to the guilty and woolly minded. In practice, <a href="http://www.pewresearch.org/fact-tank/2016/09/21/the-state-of-privacy-in-america/">most people seem confused</a> rather than indifferent.</p>
<p>A more effective response is that we should both act responsibly and require others – businesses, individuals and governments – to act with respect. That requires law reform, for example mandatory reporting about <a href="https://www.ag.gov.au/consultations/pages/serious-data-breach-notification.aspx">data breaches</a>, <a href="http://www.smh.com.au/federal-politics/political-opinion/privacy-the-fix-should-not-be-left-to-judges-20130325-2gq4l.html">establishment</a> of the privacy tort, higher standards regarding corporate negligence, and a less permissive approach by underfed watchdogs such as the Information Commissioner. </p>
<p>A tort will allow people whose privacy has been disregarded to gain compensation and an apology, and deter further harm. It is a commonsense response that will not prevent police investigations, cripple e-commerce and employee vetting, or chill free speech.</p>
<p>There is a line between public and private online. It is one we shape through our practice and our law, not something best left to Mark Zuckerberg or George Brandis.</p><img src="https://counter.theconversation.com/content/66119/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bruce Baer Arnold 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>Social media does not eradicate the line between personal or private. Instead, it shifts the line in ways that require thought rather than unreflexive condemnation or celebration.Bruce Baer Arnold, Assistant Professor, School of Law, University of CanberraLicensed as Creative Commons – attribution, no derivatives.