Category: Article

Zaky Mallah, Q&A, and the media at its worst

http://www.abc.net.au/news/2015-06-25/green-zaky-mallah-qa-and-the-media-at-its-worst/6571576

 

Zaky Mallah, Q&A, and the media at its worst

OPINION

By ABC’s Jonathan Green

Posted Thu at 7:17am

Zaky Mallah in the Q&A audiencePHOTO: Zaky Mallah should have been a no-go zone for Q&A.(ABC Q&A)

This week in politics and media was a wreck: beginning with Zaky Mallah and the troll casting on Q&A, to the inflated hypocrisy of the tabloid response and the blustering outrage of government, writes Jonathan Green.

Omnishambles: ˈɒmnɪʃamb(ə)lz/ noun Britishinformal

  1. a situation that has been comprehensively mismanaged, characterised by a string of blunders and miscalculations.

… or any given week in the Australian media and politics. Actually not just any week, this week: this rolling, muddy scuffle of buffoonery, self-interest, score settling and fear.

Yes the whole Zaky Mallah farrago, from thoughtless Q&A troll casting, to the grotesquely inflated hypocrisy of the tabloid response and the censorious, red-cheeked, blustering outrage of government. A week that has shown the media class at its worst: reactive and self-absorbed, simultaneously inconsequential and self-important. Or worse: driven by petty vindictiveness over public interest.

The public interest here is simple: freedom of speech, pluralism. And maybe Q&A has done some harm to that cause through accident, overconfidence and misadventure, but the thrust of its endeavour was right. Here is a young man, once radicalised, now reformed, whose central message is disdain for the “wankers” of Islamic State.

That’s a voice that has a place in our conversation about the promotion of terror, but not if politics has anything to do with it.

A complex human reality of cause and complicated effect might muddle the binary simplicity promoted by the Government in its prosecution of a domestic front in the War on Terror. It was all pretty clear to the Prime Minister:

I think many, many millions of Australians would feel betrayed by our national broadcaster right now, and I think that the ABC does have to have a long, hard look at itself, and to answer a question which I have posed before: whose side are you on?

Betrayed by an admission of complexity? Betrayed by an attempt to consider the full range of the conversation? This is the sort of freedom that surely our war should defend.

To call it a betrayal is to protest too much, is to reveal the thinness of the politically self-serving construct of “us” against some nameless but omnipresent “them”, a construct remote from reality, but one that the ABC is seemingly bound to defend.

Us and them meant something rather different by the time the tabloids got their hands on the story, and here it became just another shot in a vicious culture war, a culture war with the added edge of deep commercial self-interest and simple spite.

It takes a special kind of dulled self-awareness to produce front page images of Mallah in every major capital outside Perth and then complain, with heated outrage, of how the ABC had given this demon “publicity”. Never mind equating the entire staff of the public broadcaster with IS, that’s just offensive hyperbolic groupthink; the hypocrisy is the real killer.

And as good a demonstration as you might hope for of how profoundly self-regarding and fundamentally broken mass media is in this country: that one corporation’s sense of indignation and outrage can somehow become a strangely confected, stable-wide news event. It’s too easy to imagine that the real intent of Wednesday’s ubiquitous News Corp covers was to do harm to a public broadcaster whose presence in the Australian media is the last remaining coherent check on the ubiquity of its readily manipulated media message.

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This is a lesson in how media can operate: not reflecting with an objective sense of significance and priority on the events of the world it claims to report with fairness and good faith, but here, as so often, devoting every resource to a vendetta.

Here was our moment: politics trading on fear and hoping for little short of acquiescent propaganda from media, media responding with an unseemly readiness to betray its public’s reasonable interest in the simple truth.

And after all of that the thing that should have kept Mallah off the TV were not his views on terror, or jihad, or his loathing of Islamic State.

Mallah should have been a no-go zone after he tweeted threats of sexual violence against columnistsMiranda Devine and Rita Panahi a few months past, threats repeated with idiotic zeal after this fuss blew up, threats that should have been known to the producers who scheduled a question from him to add ginger to Monday’s program.

It’s all of a piece in this muddle of media and politics, that violence against women plays second fiddle in this saga to Mallah’s alleged, and for the most part imagined, links to terror.

We know the numbers by heart now, two women a week killed in this country in acts of violent loathing. The figures for those killed in acts of domestic terror…

Yet in pursuit of one we are prepared to surrender liberties, democratic process and perhaps even chip away at the rule of law. Never mind the dedication of billions to schemes only likely to inflame the very radicals they seek to imprison, banish or deter.

And for the other? The real killer, the true source of so much domestic terror? The usual political routine of penny-pinching, platitudes and lip service.

Put it all together and you might just give way to despair.

Jonathan Green is presenter of RN Sunday Extra. He has recently been appointed editor of the literary journal Meanjin. This will be his last regular column for The Drum.

Losing your citizenship

http://www.abc.net.au/news/2015-06-25/bradley-how-you-could-lose-your-citizenship/6572382

 

You may be surprised by how you could lose your citizenship

OPINION

By Michael Bradley

Posted Thu at 2:35pm

You have no right to be heard before the Immigration Minister makes his decision.PHOTO: You have no right to be heard before the Immigration Minister makes his decision. (AAP: Dave Hunt)

Allegiance will soon be a necessary condition of citizenship, under a new law designed by the Government to get around the constitutional problem that it can’t declare someone guilty of a crime, writes Michael Bradley.

.  .  .  .  .   .

3. Acting inconsistently with your allegiance to Australia

This one is the kicker. I’m about 60 per cent convinced it’s constitutionally invalid, but assume it stands up. It’s been designed to avoid the constitutional problem that the Government can’t declare you guilty of a crime. Instead, it says that, if a dual citizen or a foreign national “acts inconsistently with their allegiance to Australia” by engaging in certain conduct, they will renounce their Australian citizenship. So, it’s like saying “I’m not Australian anymore”, except by actions instead of words.

Funny, I didn’t know that allegiance was a necessary condition of citizenship. Nobody’s ever asked me to declare it.

The list of conduct is very long: engaging in terrorist acts, financing terrorism, recruiting or training for a terrorist organisation, blowing things up overseas, and those “hostile activities” in foreign countries again. These are borrowed over from the Criminal Code, the critical distinction being that you don’t have to have been convicted, or even accused, of committing an actual offence.

You renounce your citizenship by doing the act, whatever it is, as soon as you do it. It’s automatic and self-inflicted.

So you’re no longer a citizen, according to the Act. Who will know? Obviously, it has no practical consequence until somebody notices and acts on it. That means the Government saying “hey, we’ve noticed you’re not a citizen anymore, so we’re deporting you”. What the bill says is that, when the Immigration Minister notices that you’ve renounced your citizenship by your actions, he has to give written notice of it to whoever he thinks he should. Presumably his own department, so it can track you down and kick you out of Australia or refuse you re-entry.

And there’s the problem. How does the Minister notice that you’ve renounced your citizenship? By noticing that you’ve done a particular thing. To illustrate by random example: say ASIO tells the Minister that you’ve been doing some public fundraising for a charity based in Syria. ASIO thinks the charity is a front for IS, and it thinks you’ve been reckless as to whether the funds will end up in terrorist hands. That’s the definition of financing terrorism in the Criminal Code, and if ASIO is right then you have renounced your citizenship.

The Minister says “thanks ASIO”, and deports you. To do that, he has to accept that the factual allegations are correct. You have no right to be heard before he does so. You can take your case to the courts where you’ll have the onus of proving that you honestly thought the Syrian charity was legitimate, which might not be of all that much comfort if you’re already on a plane to Damascus.

I’m not very comfortable with that.

Michael Bradley’s firm Marque Lawyers is presently advising Amnesty International Australia on the legal validity and effect of the bill referred to in this article.

Michael Bradley is the managing partner of Marque Lawyers, a Sydney law firm.

According to Orwell, what were the Workers struggling for?

I noticed the following today in an essay that George Orwell wrote in 1942:
” . . . .  What are the workers struggling for? Simply for the decent life which they are more and more aware is now technically possible. Their consciousness of this aim ebbs and flows.
All that the working man demands is what these others would consider the indispensable minimum without which human life cannot be lived at all. Enough to eat, freedom from the haunting terror of unemployment, the knowledge that your children will get a fair chance, a bath once a day, clean linen reasonably often, a roof that doesn’t leak, and short enough working hours to leave you with a little energy when the day is done.”
More than seventy years have passed since Orwell wrote this. Have things changed? Speaking about conditions in Australia, I remember when we arrived in Australia in 1959 pretty much all this was available to the worker, and I mean to every worker. Today not all this is still available to every worker, and the workers who still have jobs that pay enough for a decent living, well a lot of these workers do constantly have to live in fear of losing their job and not being able to get another job. And how many working hours are the norm these days in Australia?
Orwell calls it “the indispensable minimum without which human life cannot be lived at all”. He is talking here about a ‘decent life’ for the workers. During the so called ‘cold war’ period, our governments were able to guarantee workers that much. What has changed?

Wolfowitz Doctrine

Wolfowitz Doctrine
From Wikipedia, the free encyclopedia

Paul Wolfowitz, co-author of the doctrine.
Wolfowitz Doctrine is an unofficial name given to the initial version of the Defense Planning Guidance for the 1994–99 fiscal years (dated February 18, 1992) authored by Under Secretary of Defense for Policy Paul Wolfowitz and his deputy Scooter Libby. Not intended for public release, it was leaked to the New York Times on March 7, 1992,[1] and sparked a public controversy about U.S. foreign and defense policy. The document was widely criticized as imperialist as the document outlined a policy of unilateralism and pre-emptive military action to suppress potential threats from other nations and prevent any other nation from rising to superpower status.
Such was the outcry that the document was hastily re-written under the close supervision of U.S. Secretary of Defense Dick Cheney and Chairman of the Joint Chiefs of Staff Colin Powell before being officially released on April 16, 1992. Many of its tenets re-emerged in the Bush Doctrine,[2] which was described by Senator Edward M. Kennedy as “a call for 21st century American imperialism that no other nation can or should accept.”
Although Wolfowitz was ultimately responsible for the Defense Planning Guidance, as it was released through his office and was reflective of his overall outlook, he did not participate in its drafting, nor saw it before it was publicly released.[4] The task of preparing the document fell to Libby, who delegated the process of writing the new strategy to Zalmay Khalizad, a member of Libby’s staff and longtime aide to Wolfowitz. In the initial phase of drafting the document, Khalizad solicited the opinions of a wide cross-section of Pentagon insiders and outsiders, including Andrew Marshall, Richard Perle, and Wolfowitz’s University of Chicago mentor, the nuclear strategist Albert Wohlstetter.[5] Completing the draft in March of 1992, Khalizad requested permission from Libby to circulate it to other officials within the Pentagon. Libby assented and within three days Khalizad’s draft was released to the New York Times by “an official who believ[ed] this post-cold war strategy debate should be carried out in the public domain.”

There is more on Superpower status, U.S. primacy, Unilateralism, Pre-emptive intervention, Russian threat, Middle East and Southwest Asia:

https://en.wikipedia.org/wiki/Wolfowitz_Doctrine

Here is what it says on Russian threat:
The doctrine highlighted the possible threat posed by a resurgent Russia.
We continue to recognize that collectively the conventional forces of the states formerly comprising the Soviet Union retain the most military potential in all of Eurasia; and we do not dismiss the risks to stability in Europe from a nationalist backlash in Russia or efforts to reincorporate into Russia the newly independent republics of Ukraine, Belarus, and possibly others….We must, however, be mindful that democratic change in Russia is not irreversible, and that despite its current travails, Russia will remain the strongest military power in Eurasia and the only power in the world with the capability of destroying the United States.
This was removed from the April 16 release in favour of a more diplomatic approach.
The U.S. has a significant stake in promoting democratic consolidation and peaceful relations between Russia, Ukraine and the other republics of the former Soviet Union.

14 Years After Decriminalizing All Drugs, Here’s What Portugal Looks Like

I COPIED THIS ARTICLE By Zeeshan Aleem February 11, 2015 (I COULD NOT COPY THE PICTURES AND CHARTS)

http://mic.com/articles/110344/14-years-after-portugal-decriminalized-all-drugs-here-s-what-s-happening

14 Years After Decriminalizing All Drugs, Here’s What Portugal Looks Like

By Zeeshan Aleem February 11, 2015

In 2001, the Portuguese government did something that the United States would find entirely alien. After many years of waging a fierce war on drugs, it decided to flip its strategy entirely: It decriminalized them all.

If someone is found in the possession of less than a 10-day supply of anything from marijuana to heroin, he or she is sent to a three-person Commission for the Dissuasion of Drug Addiction, typically made up of a lawyer, a doctor and a social worker. The commission recommends treatment or a minor fine; otherwise, the person is sent off without any penalty. A vast majority of the time, there is no penalty.

Fourteen years after decriminalization, Portugal has not been run into the ground by a nation of drug addicts. In fact, by many measures, it’s doing far better than it was before.

The background: In 1974, the dictatorship that had isolated Portugal from the rest of the world for nearly half a century came to an end. The Carnation Revolution was a bloodless military-led coup that sparked a tumultuous transition from authoritarianism to democracy and a society-wide struggle to define a new Portuguese nation.

The newfound freedom led to a raucous attitude of experimentalism toward politics and economy and, as it turned out, hard drugs.

Portugal’s dictatorship had insulated it from the drug culture that had swept much of the Western world earlier in the 20th century, but the coup changed everything. After the revolution, Portugal gave up its colonies, and colonists and soldiers returned to the country with a variety of drugs. Borders opened up and travel and exchange were made far easier. Located on the westernmost tip of the continent, the country was a natural gateway for trafficking across the continent. Drug use became part of the culture of liberation, and the use of hard narcotics became popular. Eventually, it got out of hand, and drug use became a crisis.

At first, the government responded to it as the United States is all too familiar with: a conservative cultural backlash that vilified drug use and a harsh, punitive set of policies led by the criminal justice system. Throughout the 1980s, Portugal tried this approach, but to no avail: By 1999, nearly 1% of the population was addicted to heroin, and drug-related AIDS deaths in the country were the highest in the European Union, according to the New Yorker.

But by 2001, the country decided to decriminalize possession and use of drugs, and the results have been remarkable.

What’s gotten better? In terms of usage rate and health, the data show that Portugal has by no means plunged into a drug crisis.

Drug use has declined overall among the 15- to 24-year-old population, those most at risk of initiating drug use, according to Transform.

There has also been a decline in the percentage of the population who have ever used a drug and then continue to do so:

Drug-induced deaths have decreased steeply, as this Transform chart shows:

Source: Transform
HIV infection rates among injecting drug users have been reduced at a steady pace, and has become a more manageable problem in the context of other countries with high rates, as can be seen in this chart from a 2014 report by the European Monitoring Center for Drugs and Drug Addiction Policy:

Source: European Drug Report 2014: Trends and developments/EMCDDA
And a widely cited study published in 2010 in the British Journal of Criminology found that after decriminalization, Portugal saw a decrease in imprisonment on drug-related charges alongside a surge in visits to health clinics that deal with addiction and disease.

Not a cure but certainly not a disaster: Many advocates for decriminalizing or legalizing illicit drugs around the world have gloried in Portugal’s success. They point to its effectiveness as an unambiguous sign that decriminalization works.

But some social scientists have cautioned against attributing all the numbers to decriminalization itself, as there are other factors at play in the national decrease in overdoses, disease and usage.

At the turn of the millennium, Portugal shifted drug control from the Justice Department to the Ministry of Health and instituted a robust public health model for treating hard drug addiction. It also expanded the welfare system in the form of a guaranteed minimum income. Changes in the material and health resources for at-risk populations for the past decade are a major factor in evaluating the evolution of Portugal’s drug situation.

Alex Stevens, a professor of criminal justice at the University of Kent and co-author of the aforementioned criminology article, thinks the global community should be measured in its takeaways from Portugal.

“The main lesson to learn decriminalizing drugs doesn’t necessarily lead to disaster, and it does free up resources for more effective responses to drug-related problems,” Stevens told Mic.

The road ahead: As Portugal faces a precarious financial situation, there are risks that the country could divest from its health services that are so vital in keeping the addicted community as healthy as possible and more likely to re-enter sobriety.

That would be a shame for a country that has illustrated so effectively that treating drug addiction as a moral problem — rather than a health problem — is a dead end.

In a 2011 New Yorker article discussing how Portugal has fared since decriminalizing, the author spoke with a doctor who discussed the vans that patrol cities with chemical alternatives to the hard drugs that addicts are trying to wean themselves off of. The doctor reflected on the spectacle of people lining up at the van, still slaves of addiction, but defended the act: “Perhaps it is a national failing, but I prefer moderate hope and some likelihood of success to the dream of perfection and the promise of failure.”

Zeeshan Aleem
Zeeshan is a Politics staff writer at Mic. He has experience at The Huffington Post, Politico, The Atlantic Wire, and BBC News. He was educated at the Sidwell Friends School, Oxford University, George Washington, and the University of Chicago.

Politicians must stop using language to strip refugees of their humanity

http://www.smh.com.au/comment/politicians-must-stop-using-language-to-strip-refugees-of-their-humanity-20150610-ghknq7.html

 

Politicians must stop using language to strip refugees of their humanity

June 11, 2015

Thomas Keneally
Instead of using the English language to support cruel policies and scapegoat victims, we should commit to finding an international solution to the refugee puzzle.

Hundreds of migrants from sub-Saharan Africa arrive at Augusta port in Sicily, Italy.

Technology cannot always change who we are. Each of us remains a peculiar kind of gifted animal and angel. Since our brain volume increased and our voice boxes evolved, we have been the kings of language. There is a wonderful theory that language began with young mothers putting their babies down because, through lack of fur, they had no capacity to carry them continuously, and thus language began as a mode of reassurance to the baby that having been put down it would be picked up again. A form of “motherese” might have been the first language. In any case I am grateful for a wonderful life being a sort of valet or gardener of language.

But like many other and better writers, I have made stories of love and animosity towards the despised people of the earth, about those who are ignored, and about people stuck on racial, religious and cultural faultlines. As an Australian redneck I’d always been engrossed in the question of why there was so much hate in Europe, and why it’s still found there, all crammed into such a small space. Since my father was an Australian soldier in North Africa, and regularly sent me home what I saw as souvenirs – German corporal’s stripes, Nazi pistol holsters and Very pistols and other items – I was always enthralled by the way European hatred emerged in World War II, stoked by the demagogue Hitler and by others.

Let me rush to say that writers do not use this sort of material because we’re noble people – many of us are terrible to live with, and my wife is willing to be interviewed on the matter after this! We write about race and other divisions because they are full of high drama. I have been fascinated by racial division ever since, as a little kid in a country town in the White Australia of the early 1940s, I saw Aboriginals from the local Greenhill settlement walk past our gate in Kempsey. It was not a moral fascination. But I could tell in a primitive, intrigued way of my own that these were a people bewildered by loss of land, loss of validity as a people, by loss of culture; and also that having had misery imposed on them, they were being blamed for being unable to escape it.

What a tribute it will be to our community if, with support of all parties, we acknowledge that ancient culture, and those towering millennia of occupation of Australia before settlement, in our constitution, as proposed by the Prime Minister and Opposition Leader. That will bring about the employment of language, of the ultimate “motherese”, to make peace with ourselves.

 

I cannot hope in obvious futility and because of my love of language, which is still my wonderful daily power tool that never needs recharging, that I might see the departure from our national discourse of some of the more outrageous and wilful mis-usages of English language with which, in both major parties, the Australian polity is afflicted. I am not the first to mention it – Paul Keating’s former adviser Don Watson, now a fine writer, wrote a bestseller on the use of what he called “weasel words”. But there is a further twist. Our leaders are not only so often misusers of language, but also deniers of our access to its better angels, its more humane colorations.

An example of what I think of as misuse: I know a young writer, Mark Isaacs, who was working on Nauru at a time when inmates were looking forward to a visit by the Labor government Immigration Minister, Chris Bowen. Knowing the desperate hopes that were harboured by fellow human beings in the tents and huts of Nauru, he was disheartened when he overheard an aide to the minister refer to the people they had come to deal with as “the undesirables”.

Now, the refugee problem is inconvenient for the world, though western governments sometimes help create it by our foreign policies and tyrants account for the rest. The refugee problem is a puzzle for the world, a test of policy and compassion. And there is the undeniable further problem of the criminality, brutality and, indeed, the poverty of the people smugglers, and the terrible perils of drowning for those who believe we are a beacon they must reach. But I ask, does any group of humans who have committed no crime deserve to be verballed as opening gambit on the enormous world refugee problem by the representative of a party, admittedly not the Minister, which has always declared its solidarity with the rest of us? Why do we have to kill them with words even before we confront them? What are we trying to justify?

May I set you an alternate scene. Recently, an Australian journalist took a camera crew aboard an Italian search aircraft looking for survivors among the vessels plying between North Africa and the Italian island of Lampedusa.

There, by the way, and elsewhere in Italy, 40 times the number of vessels that have landed on our north coast have come ashore, and even before the turn-back-the-boats policy, were high by comparison with Australia.

Back to the Australian journalist in Lampedusa: he asked a member of the aircrew about the exhaustion of looking through sectors of sea for boats and survivors. He said it was a wearisome search: an honest answer. And then the Italian crewmember said, “One has always to remember — they are human beings down there.”

Shipwrecked asylum seekers are rescued, aboard 20 miles north of Libya, by a frigate of the Italian navy on June last year. Photo: Massimo Sestini/AP

This is a scene not permitted to occur in an Australian context. An Australian journalist would be unable to get aboard an Australian search plane. He would be unable to ask our defence forces what they think, even though we know that they possess the same honourable impulses as the Italian crewmember.

I cherish the fact that I have an inherited right to say this without fear of arrest, facing no greater sanction than being considered dewy-eyed. I do not say I have an answer, though I will sketch out a possible one derived from wise sources. I just know that what we are doing is not the answer, and that using language to position our more baleful instincts is not the answer.

We have reacted to a genuine world crisis with verbal meanness and subsequent cruelty. The Italians have reacted with a reckless and, according to many, ill-advised humanity that may in the end cause of us all to look at the disease instead of persecuting the symptoms – and among the symptoms, the children that we continue to imprison with the approval of our major parties.

I wish devoutly that instead of pressing the English language into its more brutal gears and scapegoating victims, instead of enlisting our support in policies that are cruel and win the applause overseas only of the extreme right wing, we too could address ourselves not to international denial but to an international solution. This solution would involve more countries gathered together in goodwill – because the goodwill has to start somewhere. Let us forget the ridiculous proposition of writing everyone off as economic refugees. Let us lead a world crusade to enable, through the co-operation of all liberal democracies, accredited refugees to be absorbed into our populations. Fanciful? No, this was the position taken by our government after World War II when a forgotten Australian, Sir Robert Jackson, logistical genius and UN official, persuaded the entire world to resettle, according to reasonable shares, the 8 million displaced persons of Europe. It was the only policy that worked then. Let us not forget the conditions that create genuine refugees will continue to drive people onto the roads, across the borders and the seas, and cruelty will not stem that tide.

When Ben Chifley, our prime minister, took 170,000 displaced persons from the camps of Europe, a decision he made without convening a single focus group, the Age newspaper ran a 1947 poll on what immigrants Australians wanted. People said they wanted, above all, people from the British Isles, and if necessary, other northern Europeans. Germans were to be preferred to Jews. The Greeks and Italians, it was believed, would not make good citizens.

If Chifley had read that poll and been rendered as impotent as modern politicians are by such indicators, what a narrow and shrunken little place Australia would be now!

Remember too Malcolm Fraser was PM in the days when Vietnamese asylum seeker boats landed in great numbers in Northern Australia. He processed these people humanely. There was no long-term mandatory detention involved. The newcomers were not depicted as sinister invaders. Then, after the Tiananmen Square massacre, Bob Hawke announced that all 43,000 Chinese students then in Australia would be offered residency and could stay here if they wished. Language was not misused and neither were human souls.

So let’s use mandatory detention only for health, identity and security checks that do not take years, but weeks. Let’s have accommodation centres – not prisons. And for God’s own sweet sake, let’s release all children from mandatory detention. Let’s have an independent commission to decide on asylum seeker policy to stop politicians using it to improve their vote.

History warns us to be suspicious of politicians of any party, who try to concentrate our passion upon a small minority, and depict them as a bigger threat than they are. When we see this kind of trick played upon us, instead of succumbing to the race frenzy we all potentially carry inside us, we should ask, “Who is benefitting from this? Are our taxes validly being spent upon it? And who is being harmed in the name of getting a better percentage of the vote?” We should be suspicious of frenzy too, as Oskar Schindler was suspicious of Nazi ideology, because it means that leaders may be distracting us from some more important issue – like a conjurer who makes us concentrate on his right hand as he performs the trick with his left.

Citizens have always to ask questions about public hysteria over race and minorities and culture – over matters of “them” and “us”. Because, again, my lifelong experience of Australia is that the “them” can quickly become the “us”. And our freedoms are not set in stone. We know that liberties that go unguarded will be abolished for governmental convenience.

This is an edited abstract of a speech given at a graduation ceremony at University of NSW on Wednesday night, where Tom Keneally was given an honorary doctorate.

The TTIP Gap: How a Trans-Atlantic Trade Deal Can Still Be Fixed

This article was published in DER SPIEGEL, June 08, 2015

http://www.spiegel.de/international/world/how-ttip-and-an-eu-us-free-trade-deal-can-be-fixed-a-1036831.html

The European Commission is hoping that a major trade agreement with the US will stimulate the EU economy. But many in Europe fear adverse impacts on the environment and democracy. Negotiators ought to consider a third approach. By Spiegel Staff

The branch of Kaiser’s in Düsseldorf’s Vennhausen neighborhood is a supermarket like many others in Germany. It is open until 10 p.m. on weekdays, farmer’s ham sells for €1.49 a pound and Landliebe yogurt for 88 cents a cup.

Nevertheless, there is something special about the supermarket. Once a week, usually on Saturdays, Klaus Müller, the executive director of the Federation of German Consumer Organizations, essentially the top advocate for German consumers, buys a cart full of groceries at the Düsseldorf store.
More than anything else, Müller is currently concerned about the European Commission’s plan to conclude a major trade agreement with the United States. These days Müller, an economist, often strolls around his supermarket with a different look in his eyes: as if the agreement already existed.

If it did, Wiesenhof brand chickens from Lower Saxony would be displayed at the meat counter alongside chicken parts from South Carolina and beef from Iowa. The required European certification mark wouldn’t be affixed to a drill on sale, but rather a certificate from the applicable US agency. And Müller might even wonder, more often than he does today, whether the canned corn was genetically modified (GM) or the Black Forest ham might be from Virginia instead of Germany.

The negotiations currently underway in Brussels and Washington affect “a broad range of consumer products,” says Müller, noting that more competition could mean that “products become cheaper.” At the same time, he adds, it will make things more “confusing for the consumer.” Europe is about to see changes as serious as when the European Single Market was created more than 20 years ago.

Four letters are dividing Germany. The planned Transatlantic Trade and Investment Partnership with the United States, or TTIP, is intended to create a uniform economic zone for about 800 million consumers and eliminate many of the hurdles that obstruct trade across the Atlantic today. It sounds like a subject for association officials and standardization experts, but judging by the controversy the plan has unleashed, it could just as well involve the deployment of medium-range missiles or the construction of new nuclear power plants.
A Needed Counterweight to Asia?

On the one side are the lawmakers in Brussels, Berlin and Washington who see the deal as a chance to revive the economy and create a counterweight to nascent trade alliances in Asia. They face a powerful protest movement made up of environmental and social organizations, church representatives, lawyers and local politicians, who view the agreement as a giant fraud. The anti-TTIP network claims that free trade is being used as a cover to “facilitate privatization,” pave the way “for genetically modified food and meat laced with hormones” and “erode democracy.” Protests against TTIP were also planned to coincide with this week’s G7 meeting in Germany.

There is much at stake. Unlike earlier trade agreements, which consisted primarily of reducing tariffs, the goal of TTIP is to create a common market for European and American companies. The negotiators are discussing whether drugs licensed in the United States should be approved for sale in Europe, for example. The agreement would make it easier for companies that felt unfairly treated by laws in the United States or Europe to litigate against the regulations. A regulatory body that would enable governments to coordinate proposed legislation is also in the works. And for a large number of products, from car headlights to frozen pizzas, the same standards and rules would apply on both sides of the Atlantic in the future.

In many cases, what economists call “non-tariff trade barriers” are in fact regulations intended to protect health, the environment and consumer interests. Critics suspect that the seemingly harmless rhetoric about harmonization is nothing but a cover for a project that would weaken democratic decisions for the benefit of multinational corporations. Thilo Bode, the former director of Greenpeace Germany and the current head of the consumer organization Foodwatch, calls the agreement a “free trade lie.”

Economy Minister Sigmar Gabriel, on the other hand, says the deal will “influence world trade for the next 20 to 30 years.” If TTIP fails, he says, “consumer safety and workers’ rights will certainly garner less attention” in global markets in the future.

A War of Opinions

Opponents and supporters of the treaty are locked in a war of opinions made all the more acute by the fact that both sides see themselves as defenders of Western values. One side invokes economic common sense while the other insists on the primacy of the political sphere, and both sides are not afraid to use questionable figures and arguments to support their respective causes. Pro-trade industry associations, for example, say Europeans will enjoy growth effects that are not even anticipated by the economic opinions they commission. And in the anti-TTIP movement, many still capitalize on Germans’ fear of so-called “chlorine chickens,” or birds disinfected with chlorine, even though the European Commission has already made it clear that European hygiene rules will not be modified.

The only question is whether the highly emotional dispute is truly in the interest of consumers. Do Europeans really have to decide between free trade and democracy, or could an agreement be reached that does justice to both principles? Exactly how big are the economic benefits of the project, and how does it threaten health and consumer protection? And, finally, is Europe even in a position to assert its own ideas against the United States, with its improved economic position?

There is great skepticism among Germans. According to a recent poll conducted for SPIEGEL by the TNS Forschung research institute, only 18 percent of Germans support TTIP, while 33 percent are opposed to it. Of course, there is an even greater level of uncertainty, with close to 50 percent of respondents saying that they were “unable to evaluate” the project.

The machines that Carl Martin Welcker sells are true miracles of German engineering. They are the size of a truck trailer and cost several million euros apiece. Welcker opens a sliding door to demonstrate their inner workings: rotating bogies, mechanical gripper arms and a tangle of multicolored cables.

Welcker thrusts his hand into the complex interior and pulls out a spark plug. “The machine spits out one of these every 0.9 seconds,” says Welcker, a tall man with a youthful face and white hair.

Welcker is the owner of Alfred-H.-Schütte-Werke in Cologne, a medium-sized manufacturer of metal tools and objects located on the banks of the Rhine River. Spark plugs, injection pumps, artificial knee joins and dentures — all of these are items made in equipment developed by his company. The 600 employees manufacture machines most notable for their precision. “This socket,” says Welcker, “cannot exhibit a variance of more than a hundredth of a millimeter.”

Welcker sells his machines around the world, but an invisible boundary passes through his export markets. “Asia isn’t a problem,” says Welcker. We Germans serve as a barometer for them in every respect.” But things become more complicated in the United States where, for example, any safety-related threats in machines are dimensioned in inches, which means more work for his engineers. His machines must also undergo expensive testing to conform to the requirements of individual US states.

Eliminating Drawbacks

If the TTIP strategists have their way, these kinds of drawbacks will be eliminated in the future. The negotiators want to drastically simplify import regulations on both sides of the Atlantic, not just for machines. In virtually every industrial sector today, a large number of different test procedures, certification rules and documentation requirements complicate trans-Atlantic trade. European textile manufacturers often sew their labels into the side seam of shirts, while the “Made in” label has to be in the middle of the collar seam in the United States. Engineering firms that wish to offer their services in the United States must first register in each individual state. Piano makers are required to provide the authorities with detailed lists of the types of wood they use.

If the list of regulations and requirements were purged, promise TTIP proponents, it would be especially beneficial to small and medium-sized businesses. The smaller a production series, the greater the relative cost of adjusting it to conform to US regulations. “When we sell a machine in the United States,” says company owner Welcker, “it costs 15 to 20 percent more than it does here.”

Chlorine chickens? Chicken farmer Georg Heitlinger can only laugh. Chickens disinfected in a chlorine bath, as they are produced in the United States, represent the least of his fears over TTIP. The farmer from Eppingen in southwestern Germany takes us on a tour of his barns to demonstrate the real threat.

The barns, each 90 meters (295 feet) long, are swarming with 28,000 chickens, while another 12,000 birds have access to five hectares (12.4 acres) outside, complete with trees, grass and a lot of sand where they can scratch and peck at things. According to European Union regulations, there can be no more than nine hens per square meter on free-run or free-range chicken farms. In the United States, however, 95 percent of hens are kept in traditional laying batteries. With individual cages stacked up to the ceiling in giant buildings, 23 hens are crowded onto each square meter of space.

This translates into lower-cost production. “We can’t compete, given our livestock farming laws,” says Heitlinger. Another reason is that most German chicken farmers voluntarily refrain from using genetically modified feed, in contrast to the United States, where chickens are fed cheap, genetically modified soybeans.

Heitlinger isn’t worried about the market for fresh eggs at the moment, because German consumers reject eggs from caged chickens and genetically modified feed. Almost half of all eggs are used in the food business and industry, and EU law has no labeling requirements for these eggs. This could mean that German customers will unknowingly be eating pasta or cookies made with eggs from US factory farms, with their inhumane conditions.

As in chicken farming, standards vary widely in all key areas of agriculture. US farmers are allowed to use pesticides that are banned in the EU. Hormones are administered to cattle and pigs in the United States to accelerate growth, a practice banned in Europe. In many areas of agriculture, Europe has stricter environmental regulations than the United States.

Disastrous Consequences?

Ingrid Jansen, head of the Dutch pig farmers’ association, predicts disastrous consequences for her industry if TTIP is approved. She suspects that the agreement will facilitate the export of US products to the EU that were not produced in accordance with legal requirements in Europe.

Despite all claims to the contrary, many experts fear the same thing if TTIP results in the “mutual recognition of equivalent standards,” and not just in agriculture. According to the EU mandate, the negotiators are mainly searching for “more compatible regulations” to allow industry to reduce costs.

Still, the negotiations have been much tougher than anticipated. In the latest round, held in April in New York, the two sides hardly came any closer to an agreement. The legal and cultural traditions on both sides of the Atlantic are simply too different. The biggest sticking point is what is known in Europe as the precautionary principle, whereby materials and processes can only be used once proven harmless.

What might be termed the aftercare principle applies in the United States: Any products can be placed on the market, as long as they pose no scientifically proven danger. If something goes wrong, producers face the prospect of paying substantial damages to injured parties.

For instance, the Americans feel that significant parts of the European food standard, such as the ban on GM technology, meat from animals injected with hormones, meat from cloned animals and the use of chlorine to sterilize poultry, are not scientifically supported and therefore an inadmissible barrier to trade. Animal welfare, according to the US negotiators, is a “moral issue” and “not scientifically supported.”

In other words, as long as the mistreated chicken that spends its life in laying batteries doesn’t commit suicide, there is no evidence that it is suffering.

A ‘Race to the Bottom?’

Dutch pig farmers’ association head Jansen puts it like this: The TTIP mechanism of mutual recognition creates incentives to enter EU production standards into a “race to the bottom.” This is the risk that TTIP critics see on the horizon in many sectors, from cosmetics to food to healthcare.

A report by the organization Corporate Europe Observatory, which is critical of industry, and by journalist Stephane Horel, shows how successful many industries are today in using TTIP as a political tool. According to the report, the European Parliament decided in 2009 that chemicals that disrupt human hormone balance (endocrine disruptors) needed to be regulated by the end of 2013.

But the industry lobby in question, which included chemical companies BASF and Bayer, managed to keep postponing the European Parliament’s orders, partly by applying the TTIP argument. European and US industry groups argued that the planned reform would jeopardize the talks.

The slapdash manner in which Brussels approved 17 genetically modified food and feed products for the European market in late April also seems suspicious, in light of TTIP. For Martin Häusling, a Green Party member of the European Parliament, it is a clear case of submission. “Apparently the European Commission feels it has to offer the Americans a few enticements in the ongoing TTIP negotiations.”

The case is also clear-cut for chicken farmer Heitlinger. “As a farmer, you can’t be in favor of TTIP,” he says. One reason, he explains, is because customers now value locally produced, high-quality products once again. “For that reason, it makes no sense to drag steaks across the big pond.”

Investor Protection

Judd Kessler, a lawyer, owes his job to a coincidence. In the early 1970s, Kessler was working for the US Agency for International Development in Chile when the country’s socialist president, Salvador Allende, nationalized copper mines and subsidiaries of US companies. “At the time, no one at the US Embassy knew anything about international law,” says Kessler.

Working on behalf of the US government, he tried to win damages for the expropriations — before Augusto Pinochet came to power, with help from the Americans, and reversed the expropriations.

Kessler’s office is in a darkened mansion in Washington. The 77-year-old partner in the prestigious law firm of Porter Wright Morris & Arthur works as an arbitrator for the International Center for Settlement of Investment Disputes (ICSID), which is part of the Washington-based World Bank. If the United States has its way, TTIP will enable lawyers like Kessler to monitor both European and American laws in the future.

No other issue has fueled the debate over the European-American trade agreement as much as the question of investor protection. Brussels and Washington want to grant foreign companies the right to resolve disputes in an international court of arbitration.

Whenever a country that is part of the planned Atlantic trade agreement enacts an environmental law or a consumer protection regulation, it will likely face litigation by private investors, which could assert their rights in private courts. The plan has been met with outrage, especially in Germany.

Ironically, it was the Germans who came up with the procedure in the first place. To safeguard exports and investments in developing countries without reliable legal systems, the German government has concluded close to 130 investor protection agreements with other countries since the 1960s. But the concept has long since turned against its creators. For instance, Swedish energy company Vattenfall is suing Germany for €4.7 billion in damages as a result of the German government’s decision to phase out nuclear energy. US companies and their subsidiaries are even more prone to litigation and, therefore, pose a greater threat. Philip Morris Asia appeared before an arbitration court after the Australian government tried to require tougher warnings on cigarette packages.

Arbitrator Kessler is also being kept busy. In an upcoming case, he will be one of three arbitrators who will decide whether Essen-based energy utility RWE is entitled to compensation after Spain’s recent decision to cancel planned subsidies for green energy.

A Chilling Effect

An international litigation industry has developed that sounds out national laws to determine whether they provide suitable ammunition to bring suits. The number of cases has multiplied, warns Canadian international law expert Gus van Harten. The wave of litigation has had a chilling effect in his country, even on politicians at the provincial level, who hardly dare to introduce new environmental laws anymore.

In addition, the arbitration courts usually meet behind closed doors. The public is kept in the dark when Kessler and his colleagues meet in a World Bank building in Washington to question witnesses or award damages. Even the court’s rulings remain confidential if this is requested by one of the parties. And appeals are usually not part of the process.

There was a significant outcry when it was revealed that the TTIP negotiators were trying to expand the ability to sue governments. Austrian Chancellor Werner Faymann described the plan as creating “dangerous special rights for corporations.”

Together with other social democratic party and national leaders, including Sigmar Gabriel, the chairman of Germany’s center-left Social Democratic Party (SPD), Faymann is demanding reforms to the controversial procedures under the principles of constitutional law. They are proposing the establishment of a bilateral commercial court with independent, professional judges. They also want the negotiations to be open to the public and to include the right to appeal the court’s decisions.

The European Commission reacted by releasing a reform document in early May. It states that appeals against rulings should be possible, and that all documents and proceedings should be public. The proposal also calls for a fixed list of arbitrators who would have to demonstrate certain qualifications and could not act as attorneys or arbitrators in multiple proceedings, as is the case today.

But this isn’t enough for the European Parliament, which will hold a debate on TTIP next week in Strasbourg. The lawmakers are only willing to approve the trade agreement if the Americans agree to the establishment of an international commercial court and the possibility of appeal. The judges presiding over this court would no longer be attorneys, who are often motivated by special interests, but professional judges.

If the members of the European Parliament and Gabriel’s supporters stick to their guns in the negotiations, a new standard could develop on both sides of the Atlantic that would be an improvement over the old standard in several ways. It would be a reform that would take investor protection back to its roots. “Countries can regulate,” says Kessler, “but they cannot disadvantage foreigners.”

A Threat Against Democracy?

The trade negotiators from Brussels and Washington have many adversaries, but the most formidable of them all is a soft-spoken, petite woman with short, dark hair. Pia Eberhardt is the face and brain of the anti-TTIP movement.

As the author of a highly respected study on investor protection in 2013, the 36-year-old political scientist with Corporate Europe Observatory shone a spotlight on the clandestine negotiations. She formed alliances with other non-governmental organizations and, together with her team, ensured that at least a few draft agreements or working documents from the negotiations reached the public. “A small group of unelected representatives of government agencies is being given enormous power to stop regulations even before they are submitted to parliaments for a vote,” she says. “This undermines the democratic system.”

The mechanism Eberhardt is attacking has an innocuous-sounding name: regulatory cooperation. It suggests an atmosphere of friendship, cooperation and reasonable agreement.

The plans call for a body that would include representatives of the US government and EU agencies. Draft legislation would be submitted to this so-called regulatory council before being put to a vote in national parliaments, to ensure that it is in conformity with TTIP. At first glance, this resembles the way laws are passed in Germany, with the involvement of a wide range of social forces, from environmental organizations to the pharmaceutical lobby. But the difference is that the regulatory council is not a body in which the interests of the public are weighed against those of industry. Its sole purpose is to eliminate existing trade barriers and avert the creation of new trade barriers.

The regulatory council cannot directly obstruct national legislative power. But merely the threat that a law could potentially be used by companies as grounds for damage suits could lead to its being put on hold, fear TTIP opponents. The European Commission, on the other hand, stresses that will still be able to establish rules for business. According to the Commission, it is merely a question of “informing all interest groups.”

But the procedure isn’t nearly as harmless as Brussels is claiming. Even German Chancellor Angela Merkel has now conceded that the TTIP regulators’ role goes beyond simply reading draft legislation. The policy discretion of the EU and its member states could be “somewhat restricted” by the planned regulatory cooperation, according to a letter from Merkel’s office to Foodwatch.

The European Parliament also has its reservations. Its members insist on preserving the principle that European institutions alone have to right to enact laws and ordinances. “It must be clearly stated in the TTIP that legislative power cannot be undermined or delayed,” says Bernd Lange, chairman of the Committee on International Trade in the European Parliament.

‘I Try to Listen to the Opponents’

European Commissioner for Trade Cecilia Malmström, 47, isn’t easily flustered. Even when she is sharply attacked by TTIP opponents, the Swedish politician simply smiles and calms the waves, speaking in fluent English, French or Spanish. “I try to listen to the TTIP opponents,” she says. “Sometimes they are just worried that they will have to give up their European way of life.”

What a difference there is between Malmström and her crusty predecessor, Flemish politician Karel De Gucht, who had difficulty concealing his view of most TTIP opponents as misguided ideologues. Malmström is pursuing the same goals, but she does so with greater sensitivity and persuasiveness, especially in Germany, where her job of campaigning for the trade agreement is especially challenging. “If we don’t set the standards,” she says, “they will be set by others, who care less about consumer rights.”

The others she is referring to are the rising industrial powers in Asia and Latin America, which have fundamentally changed world trade in the last two decades. In the past, trade was shaped by global treaties in which well over 100 countries were involved. But since the mid-1990s, countries are increasingly forming regional economic blocs to promote trade.

The most successful of these alliances is the European Union, which has promoted its domestic market initiative for the last two decades. In Asia, countries like Indonesia, Thailand and Malaysia banded together to form the ASEAN group, and in the mid-1990s the United States, Mexico and Canada formed the NAFTA alliance. About two dozen extensive trade agreements have been added since the turn of the millennium, usually with positive results. Studies by economists show that the deals have promoted trade, led to more competition and lower prices, and increased the average income of citizens.

Undisputed Advantages for Companies

This is what most economists also expect from a TTIP agreement, even though their opinions differ on the extent of the benefits. The advantages for European companies, however, are undisputed. From Siemens to Volkswagen, the agreement would help many large industrial corporations to offset the potential disadvantages that threaten to emerge on the other side of the globe.

While Brussels and Washington negotiate a deal for the Atlantic, nations bordering the Pacific are planning even more powerful alliances. The United States and Japan, Australia and Vietnam are discussing a Trans-Pacific Partnership (TPP), a giant free trade zone for 800 million consumers. China has formed a trade bloc with the ASEAN nations and now wants to join the Pacific union.

If the agreements come about, Europe’s industry will be left with nothing. It would have to pay higher duties, while its competitors in large parts of Asia could deliver products at much lower costs. Italian leather producers, for example, would immediately be subject to a price differential of up to 18 percent when selling wallets or belts in Japan.

Europe’s chances of shaping the markets of the future would also fade. German industrial companies still dominate production in many parts of the world today. In the future, this will only be the case if Europe and the United States form an alliance, as they did in aircraft manufacturing four years ago. In an extensive agreement reached at the time, Brussels and Washington established technical norms that have become the standard for manufacturers from Canada, Brazil and China. If TTIP is a success, this could also be achieved in other industries.

A World of Trade Alliances

The world of the 21st century is a world of trade alliances. The countries that are members of the largest number of alliances and manage to align themselves with the strongest nations will enjoy the greatest benefits.

As such, the most important question is the direction in which the United States will turn in the future — toward the rising countries along the Pacific or its traditional allies on the old continent?

If Washington decides against Brussels, the “global equilibrium will tilt heavily toward Asia,” says former Swedish Prime Minister Carl Bildt. In contrast, Europe’s influence would diminish considerably.

Bildt’s fellow Swede, EU Trade Commissioner Malmström, holds a similar view. Last week, she traveled to Berlin to draw conclusions with American chief negotiator Michael Froman. The fact that they met in Berlin was ironic, because it was Chancellor Merkel who helped initiate the TTIP project in the first place. But with growing reservations among Germans, she is now passing the ball to Brussels.

The Swedish EU official sometimes feels abandoned by German politicians. “It isn’t my job to explain to the Germans why we need TTIP,” she says.

The Third Way

When consumer advocate Müller is asked how he feels about the United States, he thinks of ice cream. As a teenager, he spent two years in the US states of Indiana and Connecticut, and he was amazed by the 33 flavors available at a local ice cream parlor. “The United States is a great country for a young person,” he says.

This helps to explain why the head of the Federation of German Consumer Organizations has little understanding for the undercurrent of anti-Americanism some TTIP critics have injected into the current debate. A native of Wuppertal in western Germany, he has been a member of the Green Party for 25 years. He was also environment minister of the northern state of Schleswig-Holstein and shares many of the concerns of the anti-TTIP movement. “When it comes to food or chemicals,” says Müller, “cultures in the United States and Europe are simply too different to be able to harmonize quickly or for them to be able to recognize each other.”

But Müller is no opponent of free trade — on the contrary. “As a consumer advocate, I am in favor of freedom of choice and low prices,” he says. “But this requires that consumers can clearly and truthfully recognize what they are choosing.” The supreme advocate of the interests of the German consumer argues for a third approach in the TTIP debate.

Brussels and Washington should quickly reach a deal on the issues on which they can readily agree, such as industry standards and tariffs. In contrast, the negotiators should set aside issues of food safety and health protection, because the respective legal cultures in Europe and the United States are too different.

His argument coincides with the public mood. According to the TNS survey for SPIEGEL, 42 percent of TTIP critics oppose the treaty because it could water down European environmental and consumer laws, along with labor rights. Only 27 percent fear that it would give corporations too much power.

The numbers show that what Müller calls a “TTIP light” could indeed create a new basis for the negotiations. At the same time, it would offer the Brussels negotiators a way to correct their mistakes of recent months: the lack of transparency and the downplaying of the threats to democracy and constitutional law. Hence, this is what a new TTIP strategy could look like.

To ensure as much openness as possible, the EU needs to make all relevant documents accessible and include all social groups in the conversation.

The EU needs to create a two-sided commercial court for the controversial investor suits. It must also be possible to appeal rulings.

The regulatory cooperation currently envisioned is unnecessary. Mutual information about cooperation, as it exists in conventional trade agreements, is sufficient.

Reestablishing Trust

A TTIP process that is reformed in this manner could not only reestablish the trust the EU has gambled away with its current negotiating strategy. It would also secure the benefits of free trade without jeopardizing democracy.

The TTIP light idea has found many supporters in the professional world. One of them is Gabriel Felbermayr, a trade expert with the Munich-based Ifo Institute for Economic Research, who still believes that a slimmed down TTIP deal will provide substantial economic benefits. “A TTIP light would secure 80 to 90 percent of the expected benefits to trade,” he says.

European leaders are also flirting with the idea of a slimmed down agreement. Italian Prime Minister Matteo Renzi proposes an agreement that focuses on less controversial trade issues but is adopted as quickly as possible.
The anti-TTIP movement has achieved a great deal. It has made Europeans aware of the important issues that are being negotiated behind closed doors in Washington and Brussels. It has also shown how dangerous TTIP could become for consumer protection and civil liberties.

Many things have gone wrong, but there is still time to correct the mistakes.

By Christoph Pauly, Michael Sauga, Michaela Schiessl and Gerald Traufetter

Translated from the German by Christopher Sultan

An Article from the SATURDAY PAPER on Citizenship-Stripping

https://www.thesaturdaypaper.com.au/news/politics/2015/06/06/citizenship-stripping-and-abbotts-jihad-civil-rights/14335128001974#.VXNWR9Kqqko

JUN 6, 2015
Citizenship-stripping and Abbott’s jihad on civil rights

SOPHIE MORRIS
The practical results of revoking citizenship are yet to be seen, but the threat has already served its purpose in the party room.

In his final report last year as independent national security legislation monitor, Bret Walker, SC, recommended the government have the power to disown dual citizens involved in terrorism if it would not make them stateless.

Now the barrister and former president of the Law Council of Australia fears the government is going too far and is considering a regime that could be unconstitutional.

In particular, he is concerned that allowing the immigration minister, rather than the courts, to determine whether someone is a terrorist and revoking their citizenship on that basis leads to a very dark place.

Other legal experts have described it as “Kafka-esque”.

“They mustn’t do this,” Walker tells The Saturday Paper. “I really would like them to draw back and make it clear that of course they’re not talking about a ministerial parallel to a criminal process.”

“The people we’re talking about are not deterred by blowing themselves up … so they’re not going to be deterred by being deprived of citizenship.”
It is indeed a bizarre turn of events, when Malcolm Turnbull and conservative Liberal senator Cory Bernardi find themselves on a unity ticket against counterterrorism proposals being pushed by Tony Abbott and most of his backbench.

This week the government was divided over an issue that goes to the core of the power of government and the role in a democracy of the rule of law.

In the latest counterterrorism frenzy, the government will introduce legislation within weeks allowing the immigration minister, Peter Dutton, to strip dual nationals of Australian citizenship if they are involved in terrorism.

Even without seeing details of the legislation, Opposition Leader Bill Shorten has been goaded into expressing “in-principle support” for this measure, which extends existing laws that revoke citizenship if dual nationals join a foreign army that is fighting Australia.

Abbott wanted to go further and apply the measures to Australians who have no other citizenship but who might be eligible to apply elsewhere. On this, he was rolled by his cabinet last week. In an extraordinarily detailed leak of cabinet debate, The Sydney Morning Herald’s political editor, Peter Hartcher, revealed that six cabinet ministers had risen up against the proposal, with some warning that it trashed the rule of law and could leave people stateless.

Turnbull denied he had any hand in the leak, as did Foreign Minister Julie Bishop, as Machiavellian theories circulated about the source and whether it was designed to damage the prime minister or his rivals.

Turnbull went on to publicly opine, at a press conference on Wednesday, about the importance of the rule of law and its role in restraining the actions of government. On questions of national security, he said: “It is not good enough that laws simply be tough, this is not a sort of a bravado issue, it is that they have got to be the right laws”.

Bernardi went further, saying the proposal to allow a sole national to be stripped of citizenship at the whim of a minister was “the sort of power creep that I think is very dangerous from any government”.

Abbott was more concerned with instinct than the rule of law. “We know, instinctively, that anyone who raises a gun or a knife to an Australian because of who we are has utterly forfeited any right to be considered one of us,” he said in parliament, before demanding Labor declare its hand.

Most of the backbench rallied to support him, including some who had sought in February to end his leadership. Forty-four Coalition MPs in the house of representatives signed a petition urging him to extend the measures “not only to dual nationals, but those eligible for the citizenship of another country”. If this were adopted, even Australians with no other citizenship could lose it and end up refused re-entry to Australia or detained here indefinitely.

When Liberal backbenchers handed around the petition in question time last Thursday, they did not bother to ask Philip Ruddock for his support. Ruddock, known as Father of the House because he is the longest-serving MP, would not have signed it anyway.

He argues it would be inappropriate, as he is supposed to be jointly leading a national conversation on these matters, in his new role as the PM’s special envoy for citizenship and community engagement. He says he does not come to this role with preconceived views.

However, he does believe that laws to revoke citizenship could deter some would-be terrorists.

“We’re making sure people understand, when they become Australians, there is a commitment to accept and honour the laws of Australia and there are consequences if you don’t,” he tells The Saturday Paper.

“Those consequences may be jail but they may also be, for some, deprivation [of citizenship]. And I’m saying, in my view, it is not unreasonable to assume that some people might be influenced by that and, if they are, I think that is a good thing.”

Ruddock invokes the rule of law, but rather than Turnbull’s notion of it as a limit on government power he characterises it as something that those who take Australian citizenship must respect. “I think deprivation is about focusing people’s minds on why it is undesirable to not observe the rule of law,” he says.

According to Hartcher’s detailed reports, several cabinet ministers felt the proposals pushed by Dutton, with Abbott’s backing, would undermine the rule of law.

He wrote that Barnaby Joyce, George Brandis, Christopher Pyne, Turnbull and Bishop all raised objections, and Kevin Andrews warned that targeting sole nationals would be even more controversial in the community than in cabinet.

Although Walker argues there are valid national security reasons for revoking dual citizenship, he rejects the suggestion it is a deterrent.

“We can put safely to one side all thought of deterrent value,” he says. “The people we’re talking about are not deterred by blowing themselves up or being shot down by jet fighters, so they’re not going to be deterred by being deprived of citizenship.”

Curtin University researcher and counterterrorism expert Anne Aly goes further, saying the measures play right into the hands of the terrorist movement, which entices people with the promise of citizenship of a new Islamic State.

“They want people to go there and become stateless,” she says. “That’s what they’re banking on. They are building their state with the lost souls of those who have been lured into their web and find no escape. Why we would want to give them that is beyond me.”

She also warns that the discourse around citizenship-stripping could risk inflaming tensions and fuelling feelings of isolation and disenchantment for some Australian Muslims.

“Hopefully the government will be smart about this and will not frame this in a way that only further contributes to an already tense and volatile relationship between the government and the Australian Muslim communities that they are also elected to represent,” says Aly.

The cabinet split forced Abbott to ditch plans to legislate that sole nationals could be targeted and instead incorporate this into a discussion paper. He has appointed Ruddock and parliamentary secretary Concetta Fierravanti-Wells to oversee consultation on the measures and on citizenship more broadly.

Ruddock, a former attorney-general and immigration minister, is a curious mix of national security hawk and champion of multiculturalism and inclusion. It was the more dovish side that surfaced in one debate this week.

Liberal MP Andrew Nikolic, who was promoted to the Coalition whips team when Ruddock was shafted from it in February, moved a rather bellicose motion supporting the government’s approach to national security, no doubt designed to pressure Labor. Ruddock seconded the motion. Some MPs who spoke on it gave in to the urge to thump their chests about the threat of terrorism, but Ruddock struck a different tone. He argued the numbers of people involved were relatively small and “we ought not to allow ourselves to demonise whole communities because of the actions of individuals”.

At this stage, Ruddock won’t say whether he considers stripping sole nationals of citizenship to be warranted or legal. But he does imply there are good arguments for it, suggesting terrorists might renounce claims to citizenship elsewhere if being a sole national ensures their Australian citizenship cannot be revoked.

He also tackles another controversial dimension of the proposals, mounting the case for the immigration minister, rather than the courts, having the power to decide if someone loses their citizenship.

“With terrorism, there is difficulty getting what I regard as normal admissible evidence,” he says. “Very often, you are reliant upon intelligence and the difficulty with intelligence is that, if you put it into the public arena, particularly even informing the individual about whom you have concerns, you are exposing the very people who might help inform you.”

This argument worries Walker.

“It’s just not good enough to say that conviction is difficult,” says Walker. “Well, yes, so it is, but why on earth would you say, ‘We are going to pass laws to permit people to be punished in advance of, indeed without even trying to, convict them’? What an extraordinary thing to say about the rule of law.”

Walker adds that giving the minister this power could be unconstitutional, as revoking citizenship would be punitive. Under the constitution, only a court can rule on punishable offences. Conviction for Commonwealth offences requires a judge and jury.

Kim Rubenstein, the director of the Australian National University’s centre for international and public law, says any citizenship revocation proposals, whether of dual or sole nationals, would certainly face legal challenge.

“There would be a very strong case that it’s beyond the power of the Commonwealth to strip individuals of their citizenship,” she says. “This potential change is a reversion back to a notion of subjectivity in terms of the power of the state, which I think is very unhealthy in terms of the rule of law democratic framework.”

Constitutional lawyers have also flagged that a compromise put forward by the minister for social services, Scott Morrison, to suspend certain citizenship rights, would clash with High Court rulings enshrining the rights of citizens to enter and remain in Australia.

Walker says the current debate about citizenship-stripping falls into a category of lawmaking he describes as primarily designed to “encourage a kind of mutual pretence between the government and some people and some commentators that something is being done about something which is deplorable”.

But he fears that the rhetoric could backfire. “It is glamorising and rendering more important than they really are the adherents to and supporters of these dreadful terrorist movements. You only have to follow the inquest into Monis [the Lindt cafe hostage-taker and murderer] to know how dangerous all that can be.”

Australia is not alone in considering banishing those who support IS. The model being pushed by backbenchers and by Abbott resembles a recently enacted British regime, with broad ministerial discretion. New laws in Canada give the minister power to revoke citizenship, but only on the basis of a conviction.

Professor of law at the University of Toronto Audrey Macklin writes in a recent publication that denationalisation has long been a tool used by states “to rid themselves of political dissidents, convicted criminals and ethnic, religious or racial minorities”.

“The latest target of denationalisation is the convicted terrorist, or the suspected terrorist, or the potential terrorist, or maybe the associate of a terrorist. He is virtually always Muslim and male,” writes Macklin.

“Citizenship-stripping is sometimes defended in the name of strengthening citizenship, but it does precisely the opposite. The defining feature of contemporary legal citizenship is that it is secure. Making legal citizenship contingent on performance demotes citizenship to another category of permanent residence. Citizenship revocation thus weakens citizenship itself. It is an illegitimate form of punishment and it serves no practical purpose.”

For Abbott, it may have already served its practical purpose. He has posed as “instinctively” tough on terrorism, tougher indeed than his leadership rivals. He has issued a veiled threat to cabinet ministers that leaking has “political and personal consequences”. He has rallied backbenchers around him and forced Labor to pre-emptively declare “in-principle” support for laws it is yet to see.

Talking terrorism makes Abbott feel secure and it’s a theme on which he will continue to focus. But he still has to deal with a deeply divided cabinet.

Our Fundamental Freedoms

THE GUARDIAN PUBLISHED THE FOLLOWING ARTICLE ON 6TH OF JUNE 2015:

http://www.theguardian.com/australia-news/2015/jun/06/gillian-triggs-slams-scores-of-laws-threatening-fundamental-freedoms

Gillian Triggs slams ‘scores of laws’ threatening fundamental freedoms

Human rights commissioner delivers forceful warning over counter-terrorism legislation and attacks on rule of law by parliaments across Australia

Gillian Triggs: ‘Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention.’
Gillian Triggs: ‘Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention.’

Last modified on Friday 5 June 2015 10.03

Australian parliaments have passed “scores of laws” that threaten fundamental rights and freedoms, Professor Gillian Triggs has said, pointedly warning MPs to uphold the rule of law as they prepare to debate extraordinary ministerial powers to revoke citizenship.

In a forceful speech, the president of the Australian Human Rights Commission argued parliaments had failed to protect democratic rights and many politicians were “breathtakingly inconsistent” in supporting the rule of law.

And she warned that counter-terrorism laws introduced with “unseemly haste” were likely to have a chilling effect on free speech and privacy.

Triggs’s intervention comes amid intense debate about executive overreach as the government prepares laws to give the immigration minister the power to strip dual nationals of their Australian citizenship if they are suspected of involvement in terrorism.

The speech is likely to inflame Triggs’s already strained relationship with the Abbott government, which has previously said it had lost confidence in the Human Rights Commission chief over her handling of an inquiry into children in immigration detention.

Triggs referred to the 800th anniversary of Magna Carta – which she said had “symbolic power” – as she raised concerns that the supremacy of the law over the executive government was “under threat in Australia’s contemporary democracy”.

“Over the last 15 years or so, the major political parties have agreed with each other to pass laws that threaten some of the most fundamental rights and freedoms that we have inherited from our common law tradition,” she told an audience at the Human Rights Law Centre in Melbourne on Friday evening.

These laws undermine democracy, especially in granting powers to the executive that aren’t subject to judicial scrutiny
“For, over the last decade, particularly since the attack in 2001 on the twin towers in America, Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention.

“These new laws undermine a healthy, robust democracy, especially if they grant discretionary powers to the executive government that are not subject to judicial scrutiny.”

Triggs said the expansion of ministerial powers represented a “growing threat to democracy” and she cited numerous examples of executive overreach including:

Powers to detain indefinitely various classes of individuals, including refugees and asylum seekers, those with infectious diseases, those subject to mandatory admission to drug and alcohol rehabilitation facilities and the mentally ill;
The holding of four Indigenous men with intellectual and cognitive disabilities for years in a maximum security prison in the Northern Territory even though “each complainant had been found unfit to stand trial or found not guilty by reason of insanity”;
The indefinite detention of asylum seekers and refugees including children because of adverse security assessments “without meaningful access to legal advice or judicial review”;
The reduction of freedom of association from Queensland’s “anti-bikie” laws;
Constraints on judicial power to assess individual circumstances due to “a spate of mandatory sentencing laws”.
Triggs also spoke at length about the significant expansion of counter-terrorism powers in Australia on the grounds of community safety, arguing the strength of the rule of law was “more truly tested when security is threatened than in times of peace”.

“To the extent that Australia is threatened by terrorism, the need to protect our traditional liberties and freedoms assumes an even greater urgency,” she said.

“Many laws introduced with unseemly haste before Christmas in the name of national security go well beyond what might be deemed to necessary, creating a chilling effect on freedom of speech and the press and breaching the right to privacy.”

A detention centre on Nauru. Triggs also used the speech to criticise the indefinite detention of asylum seekers and refugees because of adverse security assessments from Asio, without any course of meaningful appeal.
A detention centre on Nauru. Triggs also used the speech to criticise the indefinite detention of asylum seekers and refugees because of adverse security assessments from Asio, without any course of meaningful appeal.
Referring to the data retention laws passed with bipartisan support in March, Triggs said it was curious that a “journalist information warrant” was required to access the call logs of a reporter but such a warrant was not needed for agencies to look at other citizens’ metadata.

“As the metadata will be collected in respect of most of the 23 million Australians, and those involved in terrorism or paedophilia are very few, it might be said that the act employs a sledgehammer to crack a nut,” she said.

Triggs also raised concerns that accused persons would face an evidentiary burden to defend themselves against a 10-year prison sentence for entering “declared areas” listed by the foreign affairs minister under the Foreign Fighters Act.

She said the same act introduced a new offence of advocating terrorism, “an imprecise crime whose scope may cover, for example, opposing the Assad regime in Syria or supporting Palestinian efforts to gain statehood”.

Other national security laws passed last year created an offence punishable by up to 10 years in jail for disclosing information about a “special intelligence operation”, which was likely to “have a chilling effect on legitimate public debate about security operations”, Triggs said.

“The overreach of executive power is clear in the yet-to-be defined proposal that those accused of being jihadists fighting against Australian interests will be stripped of their citizenship if they are potentially dual nationals,” she said.

“This proposal strikes at the heart of Australia as a largely migrant nation. Not only may this idea violate Australia’s international obligation not to render a person stateless, but also the decision may be at the discretion of a minister, without recourse to judicial processes.

“This proposal is not new. It follows a bill introduced last year to give the minister discretion to revoke citizenship for fraud or misrepresentation, or where the minister is ‘satisfied’ that a person is not of good character, all without trial or conviction. The debate, it seems, is between the subjective suspicions of a minister, versus an evidence-based determination by a judge according to established rule of law.”

Gillian Triggs accused of ‘slur’ by linking Bali Nine deaths to asylum seeker policy

The Coalition has faced criticism from legal experts over its citizenship proposals, ahead of the introduction of a bill during the next sitting of parliament that would allow the immigration minister, Peter Dutton, to target dual nationals.

The government deferred a decision on a related proposal to allow the minister to also revoke the citizenship of sole nationals who might be able to apply for citizenship elsewhere, following a cabinet backlash.

The prime minister, Tony Abbott, said the government subscribed to the “very clear principle” that “anyone who raises a gun or a knife to an Australian because of who we are has utterly forfeited any right to be considered one of us”.

But the criteria and procedure for such ministerial determinations remains unclear because the legislation is yet to be released.

Dutton suggested on Friday that affected persons could apply for a judicial review on limited grounds.

Asked whether the review would apply only to the process rather than the substance of the claims against the person, Dutton said: “It relates to that part of the decision, you’re right, and the government’s not going to have the court second-guessing ministerial decisions.”

Before she delivered her speech on Friday about the need for parliaments to “meet their obligations as a check on executive government”, Triggs was strongly criticised by Dutton for earlier comments about “the consequences” of turning asylum-seeker boats back towards Indonesia.

She was reported by the Australian newspaper to have said: “Is it any wonder that Indonesia will not engage with us on other issues that we care about, like the death penalty?”

Triggs’s office said she was reflecting on the death penalty in the region broadly, rather than specific cases, but Dutton said it was an “outrageous slur” to link the death of two of the Bali Nine drug smugglers to Australia’s asylum seeker policy.

A URL to an Article by DW (Deutsche Welle) about Cultural Values in Germany

http://www.dw.de/chlorine-concerts-and-butter-books-ttip-tests-germanys-cultural-values/a-18462804

Chlorine concerts and butter books? TTIP tests Germany’s cultural values

Are literature and live music just banal trade goods? Germany’s creatives are concerned that TTIP will knock culture off its pedestal of protection. Here, culture is carefully shielded from the winds of the market.