Tuesday, July 18, 2017

Senators Ludlum, Waters and the emerging Section 44(i) mess

The sudden resignation from the Australia Senate of first Scott Ludlum and then Larissa Waters has further opened a constitutional can of worms. The two were joint deputy leaders of the Australian Greens in the Federal Parliament, both were young seasoned performers with considerable promise. Their resignations came about because they were found to be dual citizens and thus precluded from membership of the Australian Parliament under Section 44(i) of the Australian Constitution.

Born in New Zealand in 1970, Senator Ludlum came to Australia with his family when he was three. He became a naturalised Australian citizen in his teens and assumed that his New Zealand citizenship had lapsed as a consequence. It was Perth barrister Dr John Cameron who investigated New Zealand official records who found that Mr Ludlum was also still officially classified in New Zealand as a New Zealand citizen.

Born in Canada in 1977 to Australian parents, Larissa Waters came to Australia as a baby. When she found out about Sentaor Ludlum's status, she checked her own position only to find out that she, too, was technically a dual citizen and hence not eligible to serve in the Senate. She resigned as a consequence.

Section 44(i) of the Australian Constitution reads:
44. Any person who -
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power:
....................
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
The Constitution was passed as an Act of the British Parliament in 1900. This was a very different world, one of Empire and emerging Commonwealth. As you can see from the Wikipedia article on Australian nationality law, concepts of citizenship have evolved, as has the definition of a foreign power. In 1900, it would have been seen as inconceivable that Canada or New Zealand could or would be classified as foreign powers for the purpose of Section 44(i) as compared to, say, the United States or Germany. When Canberra founder King O'Malley, for example, wanted to run for Parliament, he appears to have changed his birthplace from the US to Canada so that he was not precluded by Section 44(i).

The problem now can be simply put: something like 28% of the Australian population was born overseas, while almost 50% of the Australian population has one parent born overseas. Perhaps as many as 4.5 million Australians are or may be eligible for dual citizenship depending on the laws in the other country and hence not be eligible to stand for the Australian Parliament on a strict interpretation of the wording of Section 44(i).
.
Consider my own case as someone who has run for preselection for Federal Parliament. At the time I ran, I was eligible to apply for both British and New Zealand passports, to become a citizen of those countries. Indeed, my family later pushed me to apply for a British passport while I still could because of then EU access. Was I therefore ineligible to stand for Parliament?
    
One of the arguments in the current debate is that people should renounce their alternative citizenships and that they have only themselves to blame if they have not done so. There are a number of problems with this argument. You have to know exactly what your position is. Further, you have to be able to do so in some meaningful way given the laws of the other country. This actually makes membership of the Australian Parliament dependent on other countries' changing laws, something of an absurdity.

To take an extreme case, say the Irish Parliament changed its laws so that every person of Irish ancestry had an automatic right to apply for and be awarded Irish citizenship. On a strict reading of 44(i), that could immediately disqualify many of our current Parliamentarians. Perhaps a more relevant example is Israel's Law of Return that gives Jewish people an automatic right to Israeli citizenship. Are we therefore to exclude all Jews from the Australian Parliament?

A fair bit of point scoring from all sides has gone on around  the question of  Section 44 as they seek to use it for immediate political advantage. At a low level, this includes Mr Turnbull's comment on Senator Ludlum:
 "Obviously Senator Ludlam's oversight is a pretty remarkable one when you think about it - he's been in the Senate for so long," Mr Turnbull said. 
"Anyway, there it is, he's ineligible, and so there'll have to be, I assume, a countback ordered by the High Court to produce a replacement for him."  .
Maybe that's fair, but it ignores the way this issue has been developing and the implications it has for the operations of Parliament. Do we really want to place ourselves in the position that more than 25% of the Australian electorate may be excluded from running for Parliament?

In the end, it comes back to the High Court and the way it might interpret Section 44(i) in the light of current events. Perhaps Dr Cameron as a concerned citizen who has already brought down two Senators might consider doing a Bryan Pape and taking a citizen's case to the High Court. I, for one, would like to know just how that clause might be interpreted so that we know who is actually eligible to run.  

Postscript later on 18 July

Interesting piece by Amy Remeikis and Eryk Bagshawin the Brisbane Times: Greens senator Larissa Waters resignation triggers wave of MPs declaring Australian allegiance. Settled one issue to begin with. Tony Abbott renounced his British citizenship before entering Parliament. On Ms Waters:
Senator Waters, who was born to Australian parents studying in Winnipeg, said she had been assured as a teenager that she needed to "opt-in" for Canadian citizenship by her 21st birthday, an option she declined after not visiting the country since she was 11 months old. 
But her lawyers this week revealed that while Canada had changed its citizenship laws to the opt-in model in 1977, the year Senator Waters was born, it did not take effect until the week after her birth and she was automatically a citizen. 
An update too on ABC, including information that it cost Senator Sam Dastyari $25,000 giving up his Iranian citizenship cost $25,000 and involved two teams of lawyers — one from Australia and one in Iran.

It all remains a bit of a mess.

Postscript still later 18 July

I had not seen this High Court Decision that bears upon the application of Section 44. Recorded for later reference.
  

Wednesday, July 12, 2017

Reflections triggered by Mr Turnbull's London speech

Australian Prime Minister Turnbull's speech in London accepting the Disraeli Prize has been much reported. It has also been much misreported. This piece by John Lyons in the Australian, Not the time to pick this fight,  is an example of the second. I do wonder if Mr Lyons undertook more than a very quick and rough scan before writing. 
The tenor of our times is change and at a pace and scale utterly unprecedented in human history.
In a way, this line set the tenor for Mr Turnbull's speech, a justification for some of what was to follow.

Mr Turnbull went on to attack labels. "The truth is", Mr Turnbull said,  that political labels "have lost almost all meaning in the furious outrage cycle of social media politics, long cast adrift to be appropriated, often cynically, by one politician or another as it suits their purpose." This provided an opportunity to restate what he perceived to be the key principle espoused by the UK Conservatives and the Liberal Party:
respect for humanity not in the mass, as the Left like to see us, but as individuals and families, Edmond Burke’s small platoons, Robert Menzies “forgotten people”.  
So what we admire about our distinguished predecessors, from Churchill to Thatcher, from Menzies to Howard, is not their label but their dogged devotion to the principles of a free society under the law.
From here Mr Turnbull went on to discuss the issue that attracted so much attention in Australia:
In 1944 Menzies went to great pains not to call his new political party, consolidating the centre right of Australian politics, “conservative” - but rather the Liberal Party, which he firmly anchored in the centre of Australian politics. 
He wanted to stand apart from the big money, business establishment politics of traditional “conservative” parties so styled of the right, as well as from the socialist tradition of the Australian Labor Party - the political wing of the union movement. Menzies said at the time: 
“We took the name ‘Liberal’ because we were determined to be a progressive party, willing to make experiments, in no sense reactionary but believing in the individual, his right and his enterprise, and rejecting the socialist panacea.”
He then stated that the "sensible centre, to use my predecessor Tony Abbott’s phrase, was the place to be and it remains the place to be now."
Sovereignty. Law. Security. Liberty.
This line came a little earlier in the speech, but I have included it here because it captures the rest of the speech. Context is everything,. Mr Turnbull suggested. What Disraeli or Churchill or Menzies said had to be seen in the context of their time:
But a strong thread of principle, of value, connects our party, the Liberal Party, to that of Menzies - one that combines both the liberal and conservative traditions - John Howard’s broad church. 
And it is best summed up in this way. 
From its foundation more than sixty years ago, the Liberal Party has stood for freedom.     
From this point, the Prime Minister attempts to mount a case linking the Government's approach to terrorism,  internet control and border protection. One quote will capture the flavour:
Terrorism is the starkest and most urgent enemy of freedom. Terrorists seek to disrupt our freedoms and disable our societies based on trust through fear. They seek to create a society in which people are neither free nor secure. 
It is in the very pursuit of freedom that we seek a stronger role for the State in protecting citizens against the terrorist threat. By fighting terrorism - with proportionate means - we are defending liberal values. 
In order to be free a person must first be safe. 
The reality is that individual freedom, liberty, the rule of law, and indeed national sovereignty, are under threat. 
In a world of rapid change, we must constantly review and improve the policies and laws that will best keep us safe.  To set and forget would be easy, but it would not be right.
 I will leave you to read the whole speech to determine whether my reporting is accurate.

Fairly obviously,  "the tenor of our times is change and at a pace and scale utterly unprecedented in human history" is political hyperbole and is, in a factual sense, grossly incorrect. Equally, the idea that in "order to be free a person must first be safe' is both incorrect and dangerous. How much freedom must we give up in the name of safety?

All this said, the desire to restate the role of the Liberal Party as a party of the centre right strikes me as sensible, although just what constitutes the "sensible centre" is open to dispute. All organisations need to restate their culture and traditions as the world changes if they are to stay relevant. In his own way, Mr Abbott has been doing this as well. In doing so, they will reach back into their past to heroic figures, although coming from a Country Party tradition I am hardly likely to agree with the deification of Mr Menzies or indeed some of the Liberal Party assertions about being a broad universal church. There is too much history there.

At the same time, just being at the centre is not of itself a good thing. During the professionalisation of Australian politics, both Liberal and Labor moved to the centre, becoming in some ways indistinguishable apart from points of emphasis. In turn, this opened the way for new political movements. Now we see all the parties including the newer forces seeking to articulate approaches and differences, to reconcile internal conflicts of values, to restate their positions.

In the case of the Australian Greens, for example, the conflict over Lee Rhiannon is in part about ideology (watermelons versus tree huggers), in part about the desire to operate at a national level in an integrated and professional way to maximise the vote. It also reflects fundamentally different beliefs about the way the Party should organise itself. In the case of the National Party, there has been a drive to re-state the Party's separate identity and policies, most noticeably the renewed focus on decentralisation.

In all this, commentary has tended to focus on the immediate political conflicts, with an underlying message about the need for stability in Government. I just don't share this position. Disunity may damage individual parties, but in a practical sense Government is no more unstable than it has been in the past.

What is more interesting is the way the changes might work themselves out in shaping new political arrangements. Perhaps in all this, I should allow the last word to Mr Turnbull:
The genius of Australia is that we define our national identity not by race or religion or ethnicity but rather by a commitment to shared political values of freedom, democracy, the rule of law, equality of men and women, mutual respect - values accessible to all.
I agree.

Tuesday, July 11, 2017

The photography of Gregory Crewdson

Gregory Crewdson, Untitled, 2003
I hadn't heard of the American photographer Gregory Crewdson until I read CNN Nick Glass's piece Photographer Gregory Crewdson captures the dark side of rural America. The photos are really quite striking.

Wikipedia records that Crewdson was born on 26 September 1962. He grew up in New York and in a way drifted into photography, a hobby that became an obsession.

Crewdson's photographs usually take place in small-town America and are dramatic and cinematic, featuring often disturbing, surreal events. The photographs are elaborately staged and lit using crews familiar with motion picture production and lighting large scenes using motion picture film equipment and techniques.

Both the Nick Glass piece and the Wikipedia article cited above explore some of the influences on Crewdson's work. He is, I think, truly brilliant, creating a surreal world that remains somehow linked to the original reality. In a way, they capture the loneliness that lies at the heart of the human condition.

I leave it to you to explore his work. If you are in or will be in London soon, his latest exhibition  CATHEDRAL OF THE PINES is on at the Photographers' Gallery from 23 June to 8 October 2017.


Monday, July 10, 2017

Quis custodiet ipsos custodes? Malcolm Turnbull, Alastair MacGibbon and the latest proposed internet controls

The Latin phrase "quis custodiet ipsos custodes?",   "who will guard the guards themselves?", first appears in the Roman poet Juvenal's Satires (Satire VI, lines 347–348). According to Wikipedia, the original context deals with the problem of ensuring marital fidelity, though it is now commonly used more generally to refer to the problem of controlling the actions of persons in positions of power.

I was reminded of this phrase listening to an interview with Australian Prime Minister Turnbull's National Cybersecurity Adviser Alastair MacGibbon on the need to crack down on encrypted technology in the fight against terrorism. In response to civil liberty questions. Mr MacGibbon used phrases such as "lawful access to information" and "the reality is" to assure us that action was necessary for our own security and that Government would not misuse the powers, that safeguards exist to prevent that misuse.

Two questions arise. First, can we trust the Australian Government not to misuse added powers? Secondly, even if we can, can we assume that our existing system of Government will survive, that a future Australian government might not take a different approach?

Many years ago, I was acting branch head in the Commonwealth Treasury's Foreign Investment Division. We were dealing with a foreign takeover application. The Australian Taxation Office (ATO) asked us to place a freeze on the takeover, but could not explain for confidentiality reasons beyond a broad statement that Australian taxation evasion might be involved. It was a slightly murky case involving possible loans and transfer payments. When I modelled it, I realised that the only way in which evasion might be relevant is if the Australian company and foreign company were in fact owned by the same Australian residents. The problem then was that if that was the case, a blocking order under the Foreign Takeovers Act would be invalid since the Act did not apply to takeovers by Australian owned entities. We therefore had to ignore the taxation issue and recommended that a blocking order not be issued.

Two points to note about this case. The first is the clear separation between Government functions and powers. We would not misuse one power to support another. The second is protection of taxpayer information, the consequent inability to provide taxpayer information to another agency. There were good practical reasons for this. ATO data was sacrosanct not just because ATO was bound by its Act but because this maximised revenue. In very simple terms, if you made money illegally, you were still expected to pay tax on it. The question of legality or otherwise of the activity was a matter for other agencies. If you broke this principle, then people would become even more reluctant to provide taxation information - and cash.

Both principles, separation and confidentiality, have been eroded in the years since. It is just too attractive for Government not to use one power to reinforce another or to seek the immediate benefits offered by big data consolidation and matching to achieve policy objectives. This provides an immediate sugar hit, a short term benefit, but has also resulted in growing mistrust within the community. I think most Australians would now believe that if they provide (or Government is able to access) information to government for one purpose, they will ultimately use it for another regardless of promises at the time.

That said, while more wary, most Australians still trust Australian governments in a general sense. There are protections built into our system, including the rule of law. That brings me to my second question, .can we assume that our existing system of Government will survive, that a future Australian government might not take a different approach?

The short answer has to be no. I don't think many Germans in the Weimar Republic foresaw the rise of Hitler nor the form the Nazi regime would take, none would have foreseen East Germany and the Stasi. Think how those regimes could have used big data and data matching. Could Oscar Schindler have survived if there was someone in Berlin monitoring his KPIs and every movement using modern computer technology?

In similar vein, the question of what determines a terrorist is really only decided after the event and by the winners. This really takes me down a different track. For the moment, I would just note to Alastair MacGibbon that the question of lawful access to information depends on the laws, on legal systems, that can be changed; that there is growing distrust of Government even in Australia: that we cannot assume that information and processes will not be misused; and that short term fixes often create long-term problems,

To use one of his phrases,  the reality is that quis custodiet ipsos custodes continues to apply and continues to be a problem. I think that we need a a lot more information on possible changes that will be used equally by the governments of Malcolm Turnbull and Vladimir Putin.  

Monday, July 03, 2017

ATSI aspects of the 2016 census

The release by the Australian Bureau of Statistics (ABS) of the 2016 census results provides a picture of continuing social and demographic change within Australia. This brief post deals with the Aboriginal and Torres Strait Islander (ATSI) population drawn especially from this ABS release.

This focus seems appropriate for this week is NAIDOC Week, an annual week falling in the first full week of July that celebrates the achievements of the Aboriginal and Torres Strait Islander peoples. You will find the history of NAIDOC Week here.  

A unifying theme is selected each year. This year the theme is "Our Languages Matter." Again appropriately, my current Armidale Express series focuses on the mystery around the the Aboriginal Anaiwan or Nganjaywana language found on the New England Tablelands.You will find the opening column here.

I have written a fair bit on the language question because it interests me and I have thought it important. With so many Aboriginal languages each with different dialects, retention and revival is a significant problem. We missed a huge opportunity in the sixties and early seventies to record many languages still spoken in at least some form by elderly men and women. Sadly, the then strong interest dissipated in the absence of funding.  

Returning to the census, it records that 649,171 people identified as being of ATSI origin in 2016. This represented 2.8% of the population in the 2016  – up from 2.5% in 2011, and 2.3% in 2006.

The number and proportion of Aboriginal and Torres Strait Islander peoples in each state/territory, and  within that state/territory.The rise in the proportion is due partly to a higher birth rate, more I think to growing identification of people as Aboriginal or Torres Strait Islander. As a simple example of this process, children with one ATSI parent may choose to identify as ATSI, compounding numbers..

The ATSI population is dominated by Aboriginal people.  Of the 649,1710 people who identified as being of Aboriginal and/or Torres Strait Islander origin in 2016, 91% were of Aboriginal origin, 5.0% were of Torres Strait Islander origin and 4.1% identified as being of both Aboriginal and Torres Strait Islander origin.

Many Australians think that the ATSI population is predominantly to be found in Northern Territory. In fact, NSW with 33.3% of the ATSI population remains, as it has done for many years, the state or territory with the largest ATSI population. However, expressed as a percentage of the total population, the proportion is highest in the Northern Territory (25.5%) followed surprisingly by Tasmania (4.6%) and then Queensland (4.0%) and WA (3.1%).  

Number and proportion of Aboriginal and Torres Strait Islander people within each capital city in 2016.Unlike the majority of other Australians, most ATSI people live outside outside the capital cities. Only Canberra (99.5%), Adelaide (53.8%) and Melbourne (50.4%) hold more than half their state or territory ATSI population.

Greater Sydney has the largest absolute number of ATSI residents by a considerable margin, more than the total ATSI population in the Northern territory, but only 32.4% of the NSW ATSI population.  

One side effect of this is that as the regional and especially the inland populations stagnates or even declines, the proportion of the ATSI population increases through a combination of natural increases and migration on the Aboriginal side, emmigration on the non-Aboriginal side. . .

While I have looked at this trend in the past, I don't presently have access to my previous NSW spreadsheets, my impression is that the trend is accelerating.

As a snapshot, Tamworth Regional Council has 6,031 ATSI residents out of a total population of 59,63 or 10.1%; Moree Plains Shire has 2,945 ATSI residents out of a population of 13,195 or 21.6%; Armidale Regional Council has 2,174 ATSI residents out of a population of 29,449 or 7.4%; Kempsey has 3,353 ATSI residents out of a population of 28 885 or 11.6%. I haven't checked properly the numbers for Dubbo, there is some form of statistical definition problem there, but I think the ATSI numbers are over 10,000 now. In Barnaby Joyce's New England electorate, the ATSI population is now 12,946 or 8.4%. In the huge Parkes electorate, the ATSI population is 24,506 or 15.9%.

Just to put these numbers in perspective, the City of Sydney which includes the inner city areas such as Redfern long regarded as Aboriginal centres has 2, 413 ATSI residents out of a population of 200, 374 or 1.2%.

These types of changes have significant statistical, political and policy implications.

As recently as ten years ago, the common policy assumption was that Aboriginal people should and were moving to the city because of employment opportunities. The 2006 census showed out-migration from at least Sydney and especially from places like Blactown within Sydney because there were no jobs. Conditions on the social housing estates in which many Aboriginal people lived were also deteriorating, while others found themselves socially isolated as the estates were broken up in an attempt to alleviate the social problems that had emerged. Many Aboriginal people and especially those with families began to move back to home country.

There was also migration to the bigger regional centres where market rents were lower, social housing more readily available, with at least some jobs.This created another set of difficulties.

These trends seem to have accelerated, although I have not done the detailed analysis required to really support that conclusion. The problem with evidence based policy is that if you ask the wrong questions, if you select the wrong evidence you are going to get the wrong conclusions. If I'm right on the trends, a fair bit of current policy requires a fundamental rethink.