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.

The political endorsements of extinction by Turnbull, Berejiklian and Palaszczuk governments continue

The Sydney Morning Herald, 5 June 2018:

Wild fish stocks in Australian waters shrank by about a third in the decade to 2015, declining in all regions except strictly protected marine zones, according to data collected by scientists and public divers.

The research, based on underwater reef monitoring at 533 sites around the nation and published in the Aquatic Conservation journal, claims to be the first large-scale independent survey of fisheries. It found declining numbers tracked the drop in total reported catch for 213 Australian fisheries for the 1992-2014 period.

The biomass of larger fish fell 36 per cent on fished reefs during 2005-15 and dropped 18 per cent in marine park zones allowing limited fishing, the researchers said. There was a small increase in targeted fish species in zones that barred fishing altogether.

"Most of the numbers are pretty shocking," said David Booth, a marine ecologist at the University of Technology Sydney. “This paper really nails down the fact that fishing or the removal of large fish is one of the causes” of their decline.

Over-fished stocks include the eastern jackass morwong, eastern gemfish, greenlip abalone, school shark, warehou and the grey nurse shark. The morwong catch, once as common as flathead in the trawl fishery, dived about 95 per cent from the 1960s to 109 tonnes in the 2015-16 year to become basically a bycatch species……

…Peter Whish-Wilson, the Greens ocean spokesman, said the new research was largely based on actual underwater identification – including the Reef Life Survey using citizen scientists. It suggests fishing stocks "are not as rosy as the industry or government would like us all to think".

"This study also shows that marine parks can be successful fisheries management tools but we simply don’t have enough of them or enough protection within them to deliver widespread benefits," he said.

"The new Commonwealth Marine Reserves are woefully inadequate and won’t do anything to stop the continuing decline in the health of our oceans."

Environmental Defender's Office NSW, July 2017:

Humane Society International Australia (HSI), represented by EDO NSW, is seeking independent review of the Great Barrier Reef Marine Park Authority’s (GBRMPA) decision to approve a lethal shark control program in the Great Barrier Reef Marine Park.

HSI has lodged an appeal in the Administrative Appeals Tribunal (AAT) which will require a full reconsideration of the approval of the shark control program. The 10 year lethal control program targets 26 shark species in the Marine Park, including threatened and protected species. The appeal is based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park.....

As apex predators, sharks play a vital role in maintaining the health of the Great Barrier Reef. HSI is concerned about the ongoing impacts caused by the use of lethal drumlines which are known to impact not only on shark species but also dolphins, turtles and rays. HSI is calling for non-lethal alternatives for bather protection.

The Sydney Morning Herald, 27 May 2018:

Forest covering an area more than 50 times the size of the combined central business districts of Sydney and Melbourne is set to be bulldozed near the Great Barrier Reef, official data shows, triggering claims the Turnbull government is thwarting its $500 million reef survival package.

Figures provided to Fairfax Media by Queensland’s Department of Natural Resources, Mines and Energy show that 36,600 hectares of land in Great Barrier Reef water catchments has been approved for tree clearing and is awaiting destruction.

The office of Environment Minister Josh Frydenberg did not say if his government was comfortable with the extent of land clearing approved in Queensland, or if it would use its powers to cancel permits.

The approvals were granted by the Queensland government over the past five years. About 9000 hectares under those approvals has already been cleared.

Despite the dire consequences of land clearing for the Great Barrier Reef – and billions of dollars of public money spent over the years to tackle the problem – neither Labor nor the government would commit to intervening to stop the mass deforestation.

Environmental Defender's Office NSW, 25 May 2018:

Freedom of information laws are an important mechanism for making government decisions transparent and accountable. But the existence of such laws doesn’t mean access to information is easy.

It took a three-year legal process for the Humane Society International (HSI), represented by EDO NSW, to access documents about how the Australian Government came to accredit a NSW biodiversity offsets policy for major projects. 

The NSW policy in question allowed significant biodiversity trade-offs (that is, permitting developers to clear habitat in return for compensatory actions elsewhere) seemingly inconsistent with national biodiversity offset standards. HSI wanted to know how the national government could accredit a policy that didn’t meet its own standards.

Despite Australia being a signatory to important international environmental agreements and accepting international obligations to protect biodiversity, in recent years it has been proposed that the national government should delegate its environmental assessment and approval powers to the states, creating a ‘one stop shop’ for developers.

The original FOI request in this case was submitted in early 2015, during a time when Federal and State and Territory Governments were actively in consultation on handing over federal approval powers under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This was to be done in the name of efficiency, with the assurance that national standards would be upheld by the states.

Over 60 documents finally accessed by HSI show this was a false promise. The documents reveal that federal bureaucrats in the environment department identified key areas of the NSW policy that differed from federal standards.

Despite this, the policy was accredited.

Accreditation meant that the NSW policy could be used when approving developments with impacts on nationally threatened species found in NSW, instead of applying the more rigorous national offsets policy.

In the time it took to argue for access to the documents, NSW developed a new biodiversity offsets policy as part of broader legislative reforms for biodiversity and land clearing. Unfortunately, the new NSW biodiversity offsets policy continues to entrench many of the weaker standards. For example, mine site rehabilitation decades in the future can count as an offset now; offset requirements may be discounted if other socio-economic factors are considered; and supplementary measures - such as research or paying cash - are an alternative to finding a direct offset (that is, protecting the actual plant or animal that has been impacted by a development).

While there have been some tweaks to the new policy for nationally listed threatened species, there is still a clear divergence in standards. The new policy, and the new NSW biodiversity laws, are now awaiting accreditation by the Australian Government.

How our unique and irreplaceable biodiversity is managed (and traded off) is clearly a matter of public interest. And on the eve of a hearing at the Administrative Appeals Tribunal, the federal environment department agreed and released over 60 documents. While it was a heartening win for transparency and the value of FOI laws, it was a depressing read when these documents revealed the political endorsement of extinction.

Just because it is beautiful.......(37)

Just your standard morning surf session for these #ByronBay locals 🐬 (Video: @CraigParryPhoto in @NewSouthWales) #seeaustralia pic.twitter.com/muH0TbGyU2

— Australia (@Australia) June 6, 2018

Quotes of the Week

‘A progressive tax system “discriminates against Australians by income….Other forms of discrimination, such as by skin colour, race, or ethnicity, are rightly abhorred, yet the income tax system openly discriminates against people by income”’  [Institute of Public Affairs (IPA) 
quoted  by Sam Longford in Junkee, 5 June 2018]

“just because he quacks like his misogynist homophobic predecessor while unequivocally cosying up to a deranged and ableist racist doesn't make him the milkshake duck of prime ministers cheesh fair go”  [Academic Ingrid Matthews on the subject of Australian Prime Minister Malcolm Bligh Turnbull and the Ramsey Centre for Western Civilisation’s attempt  to fund  a BA  university course,  Twitter, 7 June 2018]

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]

Whatever happened to what's his name?

It seems that mainstream media reports concerning the Barnaby Joyce soap opera have jogged a few memories in the Clarence Valley.

I have been asked recently about the current status of former Clarence Valley Council general manager Scott Greensill.

As far as I can tell after he left Clarence Valley Council in March 2017 he turned up as General Manager at Fire & Rescue NSW, followed by a stint as Governance Manager (Fixed Term) at Central Highlands Regional Council in Queensland and, then he became Director Corporate, Governance and Financial Services and sometime Acting Chief Executive Officer at Issac Regional Council in 2018.

And no, I don't know if any of those old rumours were true.

Only 39 days to go until concerned Australian citizens can opt out of the Turnbull Government's collection of personal health information for its national database

Apparently this email is currently being sent out to registered Australian citizens.

Australian Digital Health Agency, email, 5 June 2018:

Hello,

You are receiving this email because you registered your email address at myhealthrecord.gov.au to find out more information about how to opt-out of the My Health Record system.

If you do not want a My Health Record, you must register your choice between 16 July and 15 October 2018 during the opt-out period. It is not possible to opt-out of having a record before the opt-out period starts.

The opt-out period will not apply to individuals who have previously chosen to have a My Health Record, or were included in the Nepean Blue Mountains or North Queensland opt-out trials in 2016. Individuals who have an existing My Health Record can cancel their record at any time. Instructions on cancelling a record can be found on the My Health Record website.

Once the opt-out period starts you will receive another email letting you know that the opt-out period has started and what to do if you still want to opt-out.

A My Health Record is a secure online summary of an individual’s key health information. 1 in 5 Australians already have one. It’s an individual’s choice who sees their My Health Record, what’s in it and who it is shared with. My Health Record has safeguards in place to protect an individuals’ information including encryption, firewalls and secure login.

For further information about the My Health Record, please visit the My Health Record website.

Thank you,

The My Health Record System Operator
www.digitalhealth.gov.au

[my yellow highlighting]