"Bad actor" Facebook Inc given £500,000 maximum fine - any future breach may cost up to £1.4bn

The Guardian, 11 July 20018:

Facebook is to be fined £500,000, the maximum amount possible, for its part in the Cambridge Analytica scandal, the information commissioner has announced.

The fine is for two breaches of the Data Protection Act. The Information Commissioner’s Office (ICO) concluded that Facebook failed to safeguard its users’ information and that it failed to be transparent about how that data was harvested by others.

 “Facebook has failed to provide the kind of protections they are required to under the Data Protection Act,” said Elizabeth Denham, the information commissioner. “Fines and prosecutions punish the bad actors, but my real goal is to effect change and restore trust and confidence in our democratic system.”

In the first quarter of 2018, Facebook took £500,000 in revenue every five and a half minutes. Because of the timing of the breaches, the ICO said it was unable to levy the penalties introduced by the European General Data Protection (GDPR), which caps fines at the higher level of €20m (£17m) or 4% of global turnover – in Facebook’s case, $1.9bn (£1.4bn). The £500,000 cap was set by the Data Protection Act 1998.

As one of the IT whistleblowers described the situation...

Just to sum up. 1) Facebook broke the law. 2) Cambridge Analytica broke the law. 3) Vote Leave broke the law. 4) LeaveEU broke the law. 5) Brexit and Trump were both won through breaking the law. 6) Facebook let it all happen and covered it up. https://t.co/CAOrP5rKry

— Christopher Wylie 🏳️🌈 (@chrisinsilico) July 11, 2018

Five to face Brisbane court over serious breaches of environmental law

It is thought that up to 320 square kilometres of agricultural land around Chinchilla may be at risk from contamination by chemicals and gases, due to alleged mismanagement of underground burning by Linc Energy Limited.

In November  2016 former Linc Energy chief executive Peter Bond along with four former staff members – Donald Schofield (managing director), Stephen Dumble (chief operations officer), Jacobus Terblanche (chief operations manager) and Darryl Rattai (former general manager) – were summonsed for breaching environmental law.

However their matters were adjoined until after The Queen v. Linc Energy Ltd was concluded and are all five are now due to face a committal hearing in the Brisbane Magistrates Court this month.

BRIEF BACKGROUND

ABC News, 11 May 2018:

A gas company has been fined a record $4.5 million for causing serious environmental harm at its underground coal gasification plant on Queensland's western Darling Downs.

Linc Energy was found guilty by a District Court jury in Brisbane last month after a 10-week trial.

The company was charged with five counts of wilfully and unlawfully causing serious environmental harm between 2007 and 2013 at Hopeland near Chinchilla.

Linc Energy mismanaged the underground burning of coal seams, which caused rock to fracture and allowed the escape of toxic gases which contaminated the air, soil and water on site.

The court heard the highest fine imposed upon a company so far in Queensland for similar offending was $500,000.

Linc Energy did not defend itself during the trial because it is now in liquidation.

Five executive directors have been charged with failing to ensure compliance of the company and are due to face a committal hearing in the Brisbane Magistrates Court in July.

Prosecutor Ralph Devlin told the court the company knew it was causing damage but pressed ahead with operations, and described its offending as "serious".

"The defendant acted in devious and cavalier way … its motivation was commercial gain," he said.

"It pursued commercial interests over environmental safeguards."

The court heard there would be monitoring and remediation of the site for decades to come, and it will take potentially between 10 to 20 years for groundwater to recover.

The Sydney Morning Herald, 10 April 2018:

“It was an undefended case, the liquidators chose not to defend it, so, of course, there is going to be a guilty verdict,’’ he [Peter Bond] told The Australian of Monday's court ruling.

“It means nothing; there was no one in court to call bullshit and there was a lot of bullshit to that case."

Excerpt from THE QUEEN v. LINC ENERGY LTD (IN LIQUIDATION), 11 May 2018, Sentence:

HIS HONOUR: On the 9th of April 2018, Linc Energy Limited in liquidation was found guilty by a jury of five counts of wilfully and unlawfully causing serious environmental harm. That followed a 10-week trial, and the offence is contained in the Environmental Protection Act. There was no appearance by the defendant in in  liquidation pursuant to an order of the Supreme Court under the Corporations Law. The liquidators did not have to appear. That caused particular difficulties during the trial and also has an impact on sentence proceedings as I have not been assisted by any submissions on behalf of the defendant in relation to penalty.

As the defendant is a corporation, the only penalties that are open are financial: either a fine or compensation. The provision in relation to the imposition of fines is covered by sections 45 to 48 of the Penalties and Sentences Act. The first aspect of that is that, pursuant to section 48(1)(a) and (b) and subsection (2) of that Penalties and Sentences Act, the Court must take into account:

 …so far as is practicable, the financial circumstances of the offender and the nature of the burden the imposition of the fine would have on the offender.

Section 48, subsection (2) provides the Court may fine if it is unable to find out the  matters referred to in subsection (1). There is no information before me as to the circumstances of the liquidation of the corporation. I am unaware of any of its assets or liabilities, or whether it will have the capacity to pay fines. As to the utility of imposing a financial penalty on a corporation in liquidation, there are no restrictions in law as to that. Indeed, the cases referred to me demonstrate it is appropriate, 25 whether as a need for denunciation or general deterrence of specific criminal conduct…..

In relation to counts 1 to 3, a combination of section 437 of the Environmental Protection Act 1994 and 45 section 181B of the Penalties and Sentences Act 1992 provides a maximum penalty of five times the 4165 penalty units, that is, a total of 1,561,875 thousand dollars for each of the offences covered in counts 1 to 3……

In my view, the defendant put its commercial interests well above its duty to conduct its processes in a way that safeguarded the environment. This is shown by its continued efforts to be seen as a successful Gas to Liquid producer on a commercial scale, where it operated gasifiers clearly above hydrostatic pressure to produce suitable gas for the GTL process, well knowing that contaminants were escaping widely and that damage to the land structure was occurring. As I have noted during the course of argument, there are varying degrees of wilfulness, which is an element of each offence.

The Prosecution have submitted that the appropriate way to approach the quantum is 45 by assessing the maximum and then reaching an appropriate proportion to address each offence. In terms of the section I earlier quoted in relation to the quantum of  fines, it seems to me the damage occasioned by each of these offences is significant and needs to be taken into account in the calculation of a quantum. In relation to each of counts 1 to 3, I accept the Prosecution’s submission that it is appropriate to impose 50 per cent of the maximum in relation to those.

In relation to each of counts 4 and 5, as I have noted, there are aggravating features. The defendant was well aware of the problems with the site and proceeded in disregard of its own experts. They had clearly advised the site was unsuitable because of the earlier gasifier operations; however, the defendant persisted simply 10 on a commercial basis.

In relation to the final count, the defendant purposely hid the issue of groundwater contamination from the regulator. I accept the Prosecution’s submission that fines in relation to each of those later offences should be at 75 per cent of the maximum.

I intend to reduce each of those fines to recognise the totality issues that I have spoken about, including the interplay between each offence and the damage that has actually been occasioned. On each of counts 1, 2 and 3, I fine the defendant the sum of $700,000. On each of counts 4 and 5, I fine the defendant the sum of $1,200,000. Convictions are recorded. The Prosecution does not seek its costs in relation to this Prosecution.

Adani Group At Work: using backroom political deals & big money to make fools of us all

The Wangan and Jagalingou Peoples registered a Native Title application on 5 July 2004 and their interests are often presented to the media via the Wangan and Jagalingou Family Council. 

According to ORIC Kyburra Munda Yalga Aboriginal Corporation RNTBC was originally registered on 5 July 2011 as Kyburra Munda Yalga Aboriginal Corporation and its name changed on 6 March 2013 and, according to ASIC Juru Enterprises Limited was registered on 23 April 2012.  

On 11 July 2014 and 26 June 2015 the Juru People were granted Native Title by the Federal Court over land in north Queensland.

Then foreign multinational resources and energy corporation, the Adani Group, went to work...... 

The Sydney Morning Herald, 4 July 2015:

The Wangan and Jagalingou people gathered two weeks ago at a convention centre in Carseldine north of Brisbane.

They were there to vote on a proposal to make sure those responsible for their native title claim were truly representative of the Wangan and Jagalingou people. These are the traditional owners of the land in the Galilee Basin, precisely where Indian company Adani aims to build Australia's biggest coal mine, the controversial $16 billion Carmichael project.

Twice in three years, the Wangan and Jagalingou (W&J) had rejected Adani's advances to sign a land deal for the mine, and twice Adani had dragged them off to the Native Title Tribunal and sought approval for the state to override their opposition to the mine.

It was just after 9am on Saturday, June 20, when two charter buses turned up at the Tavernetta Function Centre in Carseldine. Adani had bussed in 150 people in a sly bid to force consideration of a new memorandum of understanding they claimed to have with W&J, despite the previous 'no vote' from W&J. It was an Adani ambush, and it must have cost a fortune: three days of food, accommodation and transport for 150 people.

"We saw the buses turn up and we were wondering what was going on," says traditional owner and W&J lead spokesman Adrian Burragubba.

"They tried to organise their own meeting after ours in order to get the people to agree to their MoU - a kind of tricked ILUA [Indigenous Land Use Agreement] when they knew they didn't have one. Right now we're in the Federal Court precisely because we refused an ILUA and they have tried to override us."

But Adani's cunning stunt backfired. They hadn't counted on their 150 voters changing their minds after impassioned speeches from the likes of Burragubba. W&J tribal elders are deeply concerned about the effect of the mine on their cultural heritage and the risks it poses to water and wildlife.

By the end of the day, Adani's reps had been asked to leave the meeting. Of the W&J's 12 "new applicants", or claim representatives, at least seven were against Adani, despite all the money flying about to skew the vote, and three were in favour. The views of the other two appear in the balance….

Its latest public missive on the subject came three days before the W&J meeting: "Adani deepens partnership with Traditional Owners."

As far as W&J are concerned nothing could be further from the mark. While Adani has signed up ILUAs with other Indigenous groups – the Juru, Birriah and Jangga Aboriginal people – whose land lies either on the rail corridors from the Galilee or on the coast at Abbot Point where the coal is to be shipped to India, there is only a draft memorandum of understanding intended for the W&J, and one which is not representative of the majority of families at that.

It is getting messy. W&J now has a claim before the Federal Court alleging Adani misled the W&J people. The Native Title Tribunal and the state of Queensland are also listed as defendants for failing to properly follow process…..

NITV, 1 April 2016:

In a stunning video, traditional owners Aunty Carol Prior and Andrew Morrell call on the Queensland government to protect their cultural heritage from the Adani Carmichael coalmine in the Galilee Basin.

Juru country sits to the east of the proposed mine, but the existing Abbot Point coal port resides on the Juru coast. This means the proposed rail line linking the mine and Abbot Point will go right through Juru country.

Traditional owners say the rail line will block access to ancient rock art sites and ochre ground near Mount Roadback, and an expansion of Abbot Point will be built just five metres from sacred burial grounds.

They’ve created a petition calling on the Queensland government to register their cultural sites under the Queensland Cultural Heritage Act as ‘significant Aboriginal areas.’

Green Left Weekly, 16 February 2018:

The Wangan and Jagalingou (W&J) traditional owners of the land on which Adani has approval to build its Carmichael coalmine are concerned that the Queensland government will act to extinguish their native title rights prior to a Federal Court hearing scheduled for March 12–15.

This follows the decision by the Federal Court to not extend an interim injunction, which had been in place since December 18, restraining the Queensland government from extinguishing native title under the terms of the purported Indigenous Land Use Agreement (ILUA).

The W&J traditional owners have never consented to the mine going ahead. They say the group has voted four times since 2012 to reject an ILUA with Adani, most recently on 2 December.

On December 8 the Native Title Tribunal registered Adani’s ILUA documents. The validity of the purported ILUA is being challenged by W&J Traditional Owners in a Federal Court hearing scheduled for March. It will consider evidence that the meeting that is claimed to have authorised the ILUA was stacked with people who had no authority to authorise a deal and sign away W&J country.

Adrian Burragubba, Murrawah Johnson and Linda Bobongie for the Wangan and Jagalingou Traditional Owners Family Council said: “A substantial injustice may be done if we are denied an appeal and the interim injunction is lifted before the trial.

“Nothing can hide the facts that Adani has worked to divide our community, overturn our decisions, buy off individuals, split our claim group and engineer a sham meeting to ‘authorise’ a sham ILUA. And the Queensland government has aided and abetted them. This deal is illegitimate and should never have gone through.

“The Queensland Labor government has the power to do something about this, and it’s time they did!

“If we cannot restrain Adani with an injunction, then the Queensland Government must hear loud and clear that our land rights and culture cannot be surrendered for Adani’s profit.

“For us, this campaign has never just been about Adani. It has always been about protecting and conserving our land and culture so we can determine our own path forward for our people. One based on strong respect for our law and culture, the health of our Country and a resilient community — and clean enterprises and jobs in the new growth industries like solar energy generation.”

In a 24 May 2018 the Federal Court of Australia ruled that the Juru People themselves had not agreed that Kyburra Munda Yalga Aboriginal Corporation RNTBC should replace Juru Enterprises Limited as the nominated body negotiating an agreement with Adani Australia Pty Ltd. At time of judgment Kyburra Munda Yalga Aboriginal Corporation RNTBC was under administration.

The Guardian, 22 June 2018:

A north Queensland Indigenous organisation kept secret more than $2m in payments by the Adani mining company, federal court documents show.

Guardian Australia has obtained court documents that show the Kyburra Munda Yalga Aboriginal Corporation did not account for payments by Adani, then paid its own directors up to $1,000 a day cash-in-hand to conduct now-invalidated cultural heritage assessments for the Indian mining company.

The federal court last month delivered a ruling that may void the assessments, which are required to protect sacred sites from development.

It ruled that another Indigenous business, Juru Enterprises Limited, was the proper “nominated body” to represent traditional owners on a land-use agreement with Adani.

The impact of the decision could be wide-ranging. Traditional owners from near Bowen say they are “hugely worried” Adani has conducted work at its Abbot Point port based on improper or conflicted advice from the cultural assessment surveys.

Juru Enterprises could now demand Adani “redesign or reconfigure” any plans or works near sacred sites.

The court case has also exposed how Adani funding was central to alleged rorts conducted by Kyburra board members. Guardian Australia has seen letters, minutes of meetings, police reports, auditors reports and sworn affidavits that detail how Kyburra kept money paid by Adani off the books and then funnelled it to directors through “fees” and “loans”.

Kyburra declared only $50,000 total income in consecutive years: 2014/2015 and 2015/16. About $2m was paid to the organisation by Adani in 2014 and 2015, including an estimated $800,000 for cultural assessments. But none of it showed up in Kyburra’s annual financial statements.

Traditional owners said in a 2016 complaint letter they were suspicious about “secret payments by Adani”.

The issue before the federal court was whether Kyburra validly appointed itself as the Juru nominated body to represent traditional owners on a land-use agreement with Adani. The Indian company filed a notice submitting to any order the court might make, except as to costs.

Adani has rejected suggestions it should have been aware of mismanagement at Kyburra and alleged rorts by directors, and there is no suggestion the payments themselves were improper. The company said it was only made aware of “financial matters” through the court proceedings.

Guardian Australia can reveal that both the Office of the Registrar of Indigenous Corporations (Oric) and the Australian federal police were aware of concerns about Kyburra in 2015 and 2016….

In 2016, a lawyer representing disgruntled members of Kyburra wrote to Oric asking for an investigation into the organisation. The letter was also submitted to the court in the proceedings but not tendered at hearing.

It outlined what Oric later confirmed in an audit – that Kyburra failed to declare significant income each year from land-use agreements, including the lucrative deal with Adani. By declaring only $50,000 annual income, the organisation was exempted from having to provide audited financial statements. Money from Adani, notionally “for the benefit and use of the Juru people”, was not accounted for.

 “In our submission Kyburra actually received monies from Adani Mining Pty Ltd ... in the amount of $1,225,000. In addition ... Adani transferred $825,000 to Kyburra for cultural heritage survey activities,” the letter says.

“Further, our clients advise that the surveys are conducted by directors alone – about six directors would be present at any survey – with a daily rate of approximately $1,000 paid individually to them.

 “Our clients are suspicious of similar secret payments by Adani on behalf of Kyburra.”…..

Morrell[ traditional owner] told Guardian Australia on Monday he could not explain why Kyburra moved in 2015 to replace Juru Enterprises as the “nominated body” representing the Juru people on a land use agreement with Adani. He also questioned why Adani had simply accepted the switch.

 “I really could not tell you that one. That one really has me baffled.”

He said the court ruling meant any work carried out by Kyburra for Adani had “not been carried out under the agreements” and was voided.

“We’re happy to do the work again. Kyburra and Adani have never forwarded or allowed anyone to see any of the work being carried out, any of the reports on the work being carried out. That’s left all the Juru people wondering what was going on.

“We’ll work with them, but everything that has been done will need to be revised and reviewed and we haven’t had the opportunity to do that yet……

“We’re hugely worried. Throughout the state development area at Abbot Point alone there’s numerous places where we have burial sites, rock art, rock carvings, sacred sites. If any of those areas are being impacted they need to have that impact removed from that area.

The Turnbull Government is about to decide what is in the "public interest" and what is "fair and accurate reporting"...

And how the Turnbull Government couches these definitions in relation to national security and classified information may decide if a whistleblower or journalist ends up spending two years in an Australian gaol.

Excerpts from National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 currently before the Parliament of Australia:

122.4 Unauthorised disclosure of information by Commonwealth officers and former Commonwealth officers

 (1) A person commits an offence if:

(a) the person communicates information; and

(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth  entity; and

(c) the person is under a duty not to disclose the information; and

(d) the duty arises under a law of the Commonwealth.

           Penalty: Imprisonment for 2 years.

(2) Absolute liability applies in relation to paragraph (1)(d)

Note: A defendant bears an evidential burden in relation to the matters in 10 this subsection (see subsection 13.3(3)).

122.5 Defences

Powers, functions and duties in a person’s capacity as a 4 Commonwealth officer etc. or under arrangement……

Information communicated in accordance with the Public Interest Disclosure Act 2013

(4) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information in accordance with the Public Interest Disclosure Act 2013.

Note: A defendant bears an evidential burden in relation to the matters in 24 this subsection (see subsection 13.3(3)).

Information communicated to a court or tribunal

(5) It is a defence to a prosecution for an offence by a person against this Division relating to the communication of information that the person communicated the information to a court or tribunal (whether or not as a result of a requirement).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Information dealt with or held for the purposes of fair and accurate reporting…

(6) It is a defence to a prosecution for an offence by a person against this Division relating to the dealing with or holding of information that the person dealt with or held the information:

(a) in the public interest (see subsection (7)); and

(b) in the person’s capacity as a journalist engaged in fair and accurate reporting. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3))......

Excerpts from Advisory Report On The National Security Legislation Amendment (Espionage And Foreign Interference) Bill 2017, 7 June 2018:

SECRECY OFFENCES - DEFENCES AND OTHER MATTERS

Recommendation 26

5.87 The Committee recommends that the following proposed defences be broadened to cover all dealings with information, rather than being limited to communication of information:

§ proposed section 122.5(3) – relating to the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Law Enforcement Integrity Commissioner,

§ proposed section 122.5(4) – relating to the Public Interest Disclosure Act 2013,

§ proposed section 122.5(5) – relating information provided to a court or tribunal, and

§ proposed section 122.5(8) – relating to information that has been previously communicated. 

Recommendation 27

5.90 The Committee recommends that the Attorney-General’s proposed amendments to the defence for journalists at proposed section 122.5(6), and the associated amendments at 122.5(7), be implemented. This includes expanding the defence to all persons engaged in reporting news, presenting current affairs or expressing editorial content in news media where the person reasonably believed that dealing with or holding the information was in the public interest.

The Committee also recommends that the Government consider further refinements to the proposed defence in order to

§ make explicit that editorial support staff are covered by the defence, including legal advisors and administrative staff,

§ ensure editorial staff and lawyers, who are engaging with the substance of the information, be required to hold a reasonable belief that their conduct is in the public interest, and

§ allow administrative support staff working at the direction of a journalist, editor or lawyer who holds the reasonable belief, to benefit from the defence.

The Australian Attorney-General and Liberal MP for Pearce Christian Porter sent out this media release on 7 June 2018:

Attorney-General, Christian Porter, welcomed the release today of the Parliamentary Joint Committee on Intelligence and Security on the Government’s National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

"This is a major step forward in securing passage of this critical legislation and protecting Australia’s democratic systems from Foreign Interference, and it is my expectation that the Bill will be considered and passed during the next sitting period later this month," the Attorney-General said.

"The Committee has made 60 recommendations, the large majority of which are minor changes to definitions and drafting clarifications. The most substantive changes are those that adopt the Government’s proposed amendments which I submitted to the Committee as part of its deliberations earlier this year.

"Those Government amendments expanded the public interest defence for journalists and created separate graduated offences for commonwealth officers and non-commonwealth officers. The amendments were designed to strike the best possible balance between keeping Australia safe and not impeding the ordinary and important work of journalists and media organisations.

"In addition to minor drafting amendments and the adoption of the substantive Government amendments that I provided earlier this year, the additional substantive changes now recommended include that:

*There be a reduction to the maximum penalties for the proposed new secrecy offences, and to require the consent of the Attorney-General to any prosecution under these proposed new secrecy offences;

* That all secrecy offences in other Commonwealth legislation are reviewed; and

* Clarification that the journalism defence extends to all editorial, legal and administrative staff within the news organisation.

"Even in the time that it has taken to consider the Espionage and Foreign Interference Bill, the threat environment has changed and become more acute. As senior ASIO officials have said repeatedly in recent months, we now live in a time of unprecedented foreign intelligence activity against Australia with more foreign agents, from more foreign powers, using more tradecraft to engage in espionage and foreign interference than at any time since the Cold War."

"Given the rapid change in the threat environment it is the Government’s intention to consider the report and recommendations for amendments very quickly and my expectation is that the Bill, in essentially the form now recommend by the Committee, should be passed through Parliament during the next sitting period later this month; noting of course the primary and most significant recommendation of the report is that the Bill be passed."

The Attorney-General said this Bill and the Foreign Influence Transparency Scheme Bill were both critical to modernising our national security laws as part of the Turnbull Government’s commitment to keep Australians safe and the Attorney-General wanted to make particular note of the hard work of the Committee in the last two weeks to produce this most recent Report.

"Safeguarding Australia’s national security will always remain the Turnbull Government’s number one priority and the Committee’s role in considering and making amendments to national security legislation is at the centre of a process that has seen ten tranches of national security laws passed since 2014, with the Government accepting 128 recommendations of the Committee, resulting in 293 Government amendments," the Attorney-General said.

"This process was conducted squarely in the national interest and represented a real fulfilment of Australians expectations for cooperative bipartisan conduct when serious national security issues are at stake. On this point I would like to personally thank the Chair Andrew Hastie MP, the Shadow Attorney–General, the Hon Mark Dreyfus QC MP, and Deputy Chair, the Hon Anthony Byrne MP, for their skilled and good faith dealings with my office to deliver recommendations which ultimately improve the Bill."

It goes without saying that incorporated community organisations, grassroots activists and social media bloggers/commentators are not afforded the protection of any detailed set of defences set out in the bill or in report recommendations.

On 8 June 2018 this was how the Australian Conservation Foundation (ACF) and World Wildlife Fund - Australia saw their position under the provisions of this bill and review recommendations:

WWF-Australia and the Australian Conservation Foundation say charities who hold the Australian Government to account on its environmental record, could be charged under proposed foreign interference and espionage laws.

Both groups say changes recommended by a bipartisan committee, to address “overreach” concerns with the Bill, don’t go far enough.

“We could still be charged with espionage just for doing our job, which is a ridiculous situation,” said WWF-Australia CEO Dermot O’Gorman.

Charities such as WWF-Australia and ACF are often sought out by international bodies to provide independent analysis and a scientific assessment on the Australian Government’s environmental performance.

If either organisation briefed the International Union for the Conservation of Nature (IUCN) on failings to address threats to endangered species they could be charged with espionage. 

Or if they gave evidence to the Organisation for Economic Co-operation and Development (OECD) on shortfalls in Australia’s record on the environment they could face espionage charges. 

“Providing independent analysis is core business for environmental organisations trying to save Australia’s forests and threatened species,” Mr O’Gorman said.

“Would the 2050 Plan to save the Great Barrier Reef have happened without attention from UNESCO?”

ACF Acting Chief Executive Officer, Dr Paul Sinclair said: “Protests and advocacy may make some politicians uncomfortable, but they are essential ingredients of a vibrant democracy and healthy environment.

“Our security is of course important. But restricting civil society advocacy in its name is dangerous and would limit the community’s ability to hold the powerful to account for any damage they cause to our clean air, clean water and safe climate.

“All parties must work to rewrite this bill to strengthen protections for the public oversight, free expression and peaceful protest that makes our democracy strong.”

These conservation organisations have some reason to be concerned as committal for trial for an espionage or foreign interference offence is essentially a political decision taken by the Attorney-General, given s93.1 of National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 requires consent from the Attorney-General to proceed.

Given the antipathy displayed by the Abbott and Turnbull Coalition Governments towards any form of organised political, social or environmental activism, it is not hard to imagine a scenario in which a federal government would act maliciously against those opposing its policy positions or actions and use the provisions in this bill to effect such an act.

Being political tzar of all one surveys does not always mean that the world will bow down before you

There is no disputing that since becoming the ministerial head of that new 'super' federal government department, the Department of Home Affairs, Minister for Immigration and Border Protection Peter Craig Dutton has enjoyed a level of political power not shared by his ministerial colleagues. 

However he is obviously not happy that this power does not intimidate Australian courts and tribunals.

Perhaps this is because his Migration and Refugee Division and Character Assessments and Cancellations Branch are not always winning Dutton's war against orphans, refugees and those under threat of torture.

Administrative Appeals Tribunal decisions¹ in 2018:

1615725 (Refugee) [2018] AATA 1255

The Department of Immigration and Border Protection refused the applicant’s Protection visa. The applicant claimed he could not return to Malaysia due to his homosexuality as he would be subject to discrimination and abuse. The Tribunal set aside the decision. 

1419288 (Refugee) [2018] AATA 282

An application made by a family of three for Protection visas was refused by a delegate of the Minister for Immigration and Border Protection. The applicant seeking protection claimed he was at risk of torture if returned to Pakistan. The Tribunal remitted the decision with the direction that the applicant satisfied section 36(2)(aa) of the Migration Act 1958.

Manash (Migration) [2018] AATA 180

The review applicant sought two Orphan Relative visas for his younger siblings on the basis that their only existing carer, their mother, was incapacitated and could not care for them. The applications were refused by a delegate under section 65 of the Migration Act 1958 and the Tribunal remitted the applications for reconsideration with the direction they met the criteria for the visas.

Sheikh (Migration) [2018] AATA 1056

The Department of Immigration and Border Protection refused the visa applicant's Student visa. The visa applicant was a child residing in Somalia and both of his parents were deceased. His maternal aunt, an Australian citizen, was his carer and was attempting to return home to Australia to her family with the child. The Tribunal set aside the decision. 

Footnote:

1. "The review of decisions to refuse or cancel a visa on character grounds is a small component of the broad range of decisions about visas reviewed by the AAT, and an even smaller component of the overall caseload managed by the AAT. 

To put these matters in context, in 2016–17, the Tribunal finalised 42,224 reviews, of which 168 decisions (or less than 0.4 per cent), related to visa cancellations and refusals on character grounds

In considering and deciding these matters, Tribunal members are bound to apply Ministerial Direction No. 65 which sets out three primary considerations which must be taken into account. These include protection of the Australian community; the best interests of minor children in Australia; and expectations of the Australian Community.  The Direction also sets out five ‘other considerations’ which must also be taken into account, including: international non-refoulement obligations; the strength, nature and duration of ties; impact on Australian business interests; impact on victims; and the extent of impediments if removed.  These decisions are routinely published and contain an explanation of the Members’ evaluation of each of these considerations." [AAT appearance at Senate Estimates, 25 May 2018]

Office of Environment and Heritage v Clarence Valley Council (2018)

Clarence Valley Local Government Area covers approximately 10,441 square kilometres with nine heritage conservation precincts and official heritage listings as long as your arm.

It processes up to $100.5 million worth of development applications in a financial year.

With so much environmentally sensitive land, so many nature reserves, large swathes of native title, state forests and national parks, ancient cultural sites, unlisted historical burials, heritage buildings/bridges/cemetaries, quarries and a good many planning decisions to make, there is also a possibility that something will go awry.

This entry in the NSW Online Registry - Court Lists indicates that all is not well:

Land and Environment Court, Sydney

Justice T Moore

Office of Environment and Heritage v Clarence Valley Council
Case Number: 2018/00119684

Jurisdiction: Criminal

Class 5 Directions Hearing on 25 May 2018.

According the NSW Office of Environment and Heritage website; Proceedings in Class 5 involve summary criminal enforcement proceedings, usually by government authorities prosecuting offences against planning or environmental laws and Class 5 prosecutions are heard by a judge without a jury.

This matter probably began its journey through the court in mid-April 2018 (or perhaps earlier) but it is unlikely council will tell the Clarence Valley electorate what event led to this court case anytime soon, as even a minimum degree of transparency concerning litigation is often missing in action.