25 March 2017

March in March 2017, Armidale

This afternoon I had the honour of addressing Armidale's "March in March" community gathering, on the subjects of asylum seekers and war powers. My notes follow.

Speech notes for Armidale Rural Australians for Refugees Vigil,
Central Park, Armidale
Saturday 25 May 2017

Foreign Minister Julie Bishop is fond of extolling the virtues of a “rules-based international order”. She is particularly inclined to do that when other countries do things that don’t suit us, such as China building military installations on disputed reefs in the South China Sea and claiming sovereignty over them.

She is right in principle of course. We all have an interest in a rules-based international order. It’s either that or the law of the jungle. For a country such as Australia, the rules-based international order suits us very well. We are not powerful enough to get our way by force of arms or through economic power, but we are important enough to be listened to when the rules are being made, and we have a creditable track record in the development of international treaties and conventions that help to make the world a better and safer place.

The problem is in recent years our governments have become very selective about the rules they abide by. The ones I want to talk about this afternoon are those which bear on the treatment of refugees and asylum seekers, and those which bear on how we go to war.

In our treatment of refugees and asylum seekers we routinely ignore the provisions of the Refugee Convention which we willingly and proudly helped to negotiate in 1951. I am sure you are all familiar with the many ways we flout the provisions of the Convention: describing and treating those who arrive by sea as “illegal”; mandatory detention rather than a short period of detention to conduct health and identity checks; interminable delays in processing asylum claims; denial of access to the Australian courts; transfers to third countries with associated claims that the asylum seekers are not our responsibility; failing to make adequate provision for the health, safety and welfare of people in detention; and more recently, refoulement – returning refugees to their countries of origin without due regard to the dangers they may face.

You may be less familiar with the disturbing behaviour our Government has shown in relation to our obligations under the Convention on the Safety of Life at Sea (SOLAS), as recounted in Tony Kevin’s excellent 2012 book Reluctant Rescuers, and I would argue that our placing turned back asylum seekers in a lifeboat under the control of someone with no seamanship or navigation qualifications is in violation of that convention.

In addition, some of the turn-back operations have seen Australian military vessels violate Indonesian territorial waters, in violation of the U Convention on the Law of the Sea, and of course our interception of boats on the high seas is highly questionable in relation to that same Convention.

In considering our approach to the refugee issue we must also consider the contribution we make, through our military actions, to the fracturing of societies and the displacement of people. We go to war too readily, and we go to war too easily. Under the Australian Constitution the power to deploy the Australian Defence Force into international armed conflict rests with the Governor-General, acting on the advice of the Prime Minister and the Executive Council. There is no requirement for Parliamentary involvement in the decision-making process.

This means that the power is effectively in the hands of the Prime Minister; as former Prime Minister Malcolm Fraser wrote, strong-willed Prime Ministers always get their way in Cabinet.

In 2003 John Howard took Australia into an illegal invasion of Iraq. Under the United Nations Convention, there are only two grounds for military action against another state: authorisation by the UN Security Council, or an immediate threat to the nation’s territory. Neither of those conditions was satisfied in 2003.

To make matters worse, the Howard Government sent the troops to war without obtaining the authorisation of the Governor-General, the only person who has the Constitutional power to authorise a deployment. Instead, an order was given by the Defence Minister under Section 8 of the Defence Act, a section which merely gives the Minister control of the administration of the Department and the Defence Force. It is not a power to make war.

In so doing, the Howard Government placed the soldiers, sailors and airmen and –women at risk. In the event of a claim that any of them had committed an illegal act under the Laws of Armed Conflict, the first question that would arise in front of a tribunal would be whether the individuals concerned were lawfully in the theatre of conflict, and without the Governor-General’s authorisation they could not argue that they were.

We deserve better than this. A decision as great as going to war - the biggest decision a country can make, and one on which the fate of millions of people will depend - must be subject to the most exhaustive scrutiny. Australia’s Parliament should be a vital part of that process and not simply a rubber stamp. Governments proposing a particular military deployment should be required to explain to Parliament why it is proposed, what it will achieve, and how the predictable costs will be met, including looking after its victims.

And if a war is worth fighting, it is worth the trouble to look after the victims, as we did after World War II, to the enormous enrichment of our society.

So by all means let us have a rules-based international order. But to show that we are serious about that, let us demand of our governments that they obey all of the rules, all of the time.

20 March 2017

Australia21 media release re drug law reform

Senior police and prison officers stand side-by-side with drug users to
call for law reform

Media release
Embargoed until 00:01 on March 20, 2017

Senior police and prison officers are today standing side-by-side with drug users calling for law reform, to bring an end to killing and criminalising young Australians.

Drug-related deaths, diseases, injuries, crimes and social costs continue to rise despite more than 80,000 consumer arrests in Australia each year.

So now four former Police Commissioners and Assistant Commissioners, two former heads of Corrective Services, a former Supreme Court Judge and a former Director of Public Prosecutions have made history, putting their names to a report that says it is time for decriminalisation.

‘Can Australia respond to drugs more effectively and safely?’ is being launched by Jeff Kennett, founder of BeyondBlue and former Liberal Premier of Victoria, and Bob Carr, former Labor Minister for Foreign Affairs and former Premier of New South Wales.

This remarkable Australia21 report does something that has never been done before: it tables solutions backed by the very people who were enforcing drug laws until recently.

It comes out of an unprecedented Roundtable convened by Mick Palmer, who has served as Commissioner of both the Australian Federal Police and Northern Territory Police.

“What we now have is badly broken, ineffective and even counterproductive to the harm minimisation aims of Australia’s national illicit drugs policy,” said Mr Palmer.

“We must be courageous enough to consider a new and different approach.”

Drug users and their families have welcomed the stand.

“If I had been given support instead of being jailed I would have spent 20 years as a productive member of the community instead of succumbing to my heroin habit that repeatedly ended me up in prison,” said Kat Armstrong, who has finally gone straight, cleaned up and founded the Women’s Justice Network to support other offenders trying to do the same.

“I don’t want more kids or anyone to die, or to ruin their lives like I did – we must intervene and help them now, before it’s too late,” she said. “I know, because I lived it.”

‘Can Australia respond to drugs more effectively and safely?’ recognises the weight of evidence from Australia and overseas that proves policing is singularly unsuccessful in reducing harms or changing drug use habits.

“The threshold step is to redefine drugs as primarily a health and social issue rather than one of criminal justice,” said Dr Alex Wodak, Director of the Alcohol and Drug Service at St Vincent’s Hospital Sydney from 1982 to 2012 and current President of the Australian Drug Law Reform Foundation.

The Australia21 report makes 13 key recommendations, aimed at:
  • minimising harms for drug users and those around them,
  • reducing the use of untested, unregulated drugs in unsafe environments,
  • providing health and social programs to reduce drug-related problems,
  • reducing and even eliminating criminal control of the drug market,
  • reducing the prison population and its associated progress to hard drug use,
  • supporting police and the judicial system to focus law enforcement more usefully.

The Australia21 report calls for an approach that distinguishes between high-end production and trafficking on the one hand, and personal use and possession on the other.

It does not recommend open-slather legalisation of all drugs; instead, it supports incremental, robustly evaluated steps towards a national policy of decriminalisation, standardising the discretionary approach to personal use and possession of cannabis and other substances that is already being adopted by front line law enforcers at the State and Territory level.

Advertising of any legalised and regulated drugs would not be permitted and some harder substances would require stringent controls, such as prescription by a doctor.

Recognition of the disconnect between harm minimisation and arrests for use or possession has already led to decriminalisation in many countries, including the USA (11 states), Netherlands, Switzerland, France, Germany, Austria, Spain, Portugal, Belgium, Italy, the Czech Republic, Denmark, Estonia, Ecuador, Armenia, India, Brazil, Peru, Colombia, Argentina, Mexico, Paraguay, Uruguay, Costa Rica and Jamaica.

The Australia21 recommendations have not been made lightly. They have been carefully considered after rigorous debate among the diverse group of Roundtable participants and it has taken more than a year to reach consensus on the details and sign off the text.

‘Can Australia respond to drugs more effectively and safely?’ is the third in a series of Australia21 reports examining drug law reform. The others are:

This latest report is being launched at 10:45am Monday 20th March, in the Jubilee Room at NSW Parliament House.

YouTube link to social video: https://youtu.be/cXrpNoXbQNE

For further information:
Director Deborah Rice: 0414 746648 deborah.rice@australia21.org.au
Executive Officer Anne Quinn: 02 62880823 anne.quinn@australia21.org.au
‘Can Australia respond to drugs more effectively and safely?’  

Summary of Recommendations

1.     The overriding objective of Australia’s national policy on drugs should be the minimisation of harm to users and those around them.

2.     The policy should include substantially reducing the size of (or eliminating) the criminal supply, by incrementally moving psychoactive drugs from the black market.

3.     More proportionate funding should be directed into harm minimisation and away from ineffective drug law enforcement.

4.     It should be recognised that criminal and antisocial behaviour resulting from drug use is largely a result of the high costs of maintaining a drug habit and only in some cases the specific effect of the drug.

5.     Users should be able to submit drugs for testing in a controlled environment to prevent avoidable deaths and overdoses.

6.     Current practices to test drivers for the presence of psychoactive substances should be to ascertain whether the driver is unsafe or unfit to drive, especially as new laws governing use of medicinal cannabis come into effect.

7.     Key Performance Indicators (KPIs) that include arrest rates for use and possession of psychoactive substances should be considered only partial measures of ‘success’, unless they also include harm reduction measures.

8.     Savings made from cutting back unproductive law enforcement activities
should be re-allocated within law enforcement to areas of greater benefit to the community.

9.     Opioid Substitution Treatment (OST), including methadone and buprenorphine, should be available for all heroin-dependent prisoners, sentenced and remanded, and should continue to be available following release at reduced cost.

10.  The potential for an expanded OST service to substantially reduce the Australian prison population and associated costs should be explored by state and federal taskforces and warrants serious attention by the Australian Productivity Commission and the Australian Law Reform Commission.

11.  In view of the long and successful operation of the medically supervised injecting centre in Sydney, serious consideration should be given to the establishment of controlled drug consumption rooms in other parts of Australia.

12.  Australian authorities should review the effectiveness of the 2013 New Zealand Psychoactive Substances Act.

13.  Two pilot projects to trial and evaluate the health and social programs recommended in this report should be conducted — one in a remote disadvantaged community and another in an urban community with substantial social and drug related problems.

‘Can Australia respond to drugs more effectively and safely?’  

Roundtable participants

Mr Bill Bush
International Lawyer and Drug Law Reform Advocate

Mr Nicholas Cowdery AM
Director of Public Prosecutions NSW 1994–2011

Mr Keith Hamburger AM
Former Director General Qld Corrective Services Commission

Superintendent (Ret’d) Frank Hansen APM
Former NSW Police Force

Dr Stephen Jiggins AM
Professional Communicator

Mr Jack Johnston
Former Commissioner of Tasmania Police

Professor Desmond Manderson
Social Historian Australian National University

Mr Denis McDermott AM APM SIM
Assistant Commissioner Australian Federal Police

Mr Ken Moroney AO APM
Commissioner NSW Police Force 1965–2007

Dr Anne Marie Martin
Assistant Commissioner Offender Management and Policy Corrective Services NSW

Ms Vivienne Moxham-Hall
Secretary Australian Drug Reform Foundation

Mr Matt Noffs
CEO of the Noffs Foundation

Mr Mick Palmer AO APM
Vice President Australia21 and former Commissioner Australian Federal Police and Northern Territory Police

Professor Alison Ritter
UNSW and former President International Society for the Study of Drug Policy

Ret’d Justice Hal Sperling
Former Judge of the NSW Supreme Court and member of NSW Law Reform Commission

Mr Gino Vumbaca
Former National Director of the Australian National Council on Drugs

Dr Alex Wodak AM
Director Australia21 and President of the Australian Drug Law Reform Foundation

The Roundtable was held under Chatham House rules, allowing comments to be recorded but without identification of the individuals who made them.

15 March 2017

Time for export controls on gas?

The Prime Minister will be meeting with east coast gas producers this afternoon to try to thrash out some sort of arrangement to ensure adequate gas supplies for the domestic market.

The fact is, the Commonwealth holds all the cards if it has the spine to play them. It could have export controls on gas in place by the time the meeting starts, simply by using the Customs Regulations to place gas under export controls. Gas would become a prohibited export, unless the exporter had permission in writing from the Minister. It would then be up to the relevant Minister to grant to each producer permission to export part or all of its gas. Permission could be given shipment by shipment, or yearly, or monthly, as the situation warrants. The intent would be to grandfather most if not all current arrangements, but the matter would be firmly and clearly under Commonwealth control.

The use of the trade and commerce power in this way is very flexible, and it has been thoroughly tested in the High Court (see Murphyores Pty Ltd vs Commonwealth 1976).

14 March 2017

Government abuses public servants at its peril

The 12 March 2017 edition of The Sydney Morning Herald carried an op-ed by economics writer Ross Gittins under the title Abused public servants help bring Turnbull down.
In this article, about “the Centrelink robo-debt stuff-up”, Gittings makes three points which have general validity for relationships between the Government and the public service; points which any government would be wise to consider:
  • making the department heads fear for their jobs should they do anything to annoy the government
  • while you can always bully the top public servants into covering for you, when you mistreat the servants they stop warning you about the hazards you face and, ultimately, indulge in schadenfreude when you fall over the cliff
  • limiting the ability of their departments to pass on unwelcome advice by interposing “a bunch of young punks and political wannabes” between them and their senior officials
How the once-fine Australian Public Service came to its current state has a long history. The fundamental change goes back to 1984 when the Public Service reforms introduced by John Dawkins, Minister assisting the Prime Minister in Public Service Matters in the Hawke Labor Government. It was from that time that what had once been known as Permanent Heads were placed on what were loosely described as 5-year contracts but which turned out not to be contracts at all – they were term appointments which the Government could terminate at will.

The insecure position in which this has placed Department Secretaries has been made abundantly clear first by John Howard and then by Tony Abbott, each of whom sacked several Department Heads on coming to office. More subtly, John Howard placed at least two Defence Secretaries on short term appointments (three years), neither of which was renewed. The message is plain: do what you are told, don’t make waves, don’t bring to light any inconvenient truths, or you will have your appointment terminated.

This situation has a chilling effect all the way down the command chain. A Department Secretary who does not want to be confronting the Minister with inconvenient realities will sideline Division Heads who they suspect will bring forward inconvenient information and analysis which they would have a duty to take up with the Minister. If we need yes-persons at the top, we need yes-persons all the way down the line. A fish rots from the head, as the old Chinese proverb would have it.

Read Gittins’ article in full here.

12 March 2017

Howard's War - a continuation of politics by other means

For the discerning reader the Palazzo Report, the classified internal report on how we got into Iraq and how we fared, prepared by Army Historian Dr Albert Palazzo and now released in redacted form, is a remarkable document. Although heavily redacted in places, it offers a rich store of information about how the Howard Government conducted itself in the lead up to the March 2003 invasion of Iraq, the Government’s intent, and the state of the Army it sent to war.

Having been prepared for internal consumption by a professional researcher with access to the key players and to classified documents, it is a very difficult document to dismiss as a source. It deserves to be taken seriously, very seriously indeed.

What the document shows is that John Howard’s decision to involve us in the illegal invasion of Iraq in March 2003 had very little to do with any threat to Australia’s national security, and had as its prime intent the winning of plaudits from the Americans.

There was no strategy, no end-state that the Australian Government wished the ADF to achieve – it was all about “being there”. In Dr Palazzo’s words, “From a political policy angle Australia’s participation was an alliance issue, not a military one”, and later, “From the Howard Government’s perspective … the war’s effect on the domestic political situation took precedence over the country’s international relationship with the United States”.

This shaped the Government’s attitude to the composition of the force, the assets it was prepared to release, the amount of money it was prepared to spend, and the extent to which it was prepared to risk incurring casualties.

The fact that the whole exercise was contoured around the political interests of the Howard Government meant that the preparations were conducted in extraordinary secrecy – presumably because the Government wanted to keep its political options open until the last moment. In pursuing its essentially domestic political intent the Government dealt less than honestly not only with the Australian public and the Parliament, but also with our American allies.

Right up to the eve of the invasion the Government maintained not only to the Australian public but to the Americans that the Government was not yet committed to join in the invasion – palpable nonsense because we had a significant contingent participating in the detailed planning at Central Command (CENTCOM) Headquarters in Tampa, Florida. Nevertheless, the Americans had to conduct themselves throughout on the basis of the fiction that we had yet to make a decision.

The politics of the situation meant we were unhelpful to the Americans in more substantive ways. One of the force elements that the ADF planners examined in the greatest depth was a reconnaissance battle group, apparently because it was one of the ADF assets that senior US officers and CENTCOM planners consistently expressed a keen interest in. US planners had identified a capability gap in their force structure – the security of the western flank of the 1st Marine Division during its drive on Baghdad – and they looked to the Australian Army to remedy the problem. This was a task for which our light cavalry had been designed, and Army Headquarters pushed for the deployment of an ASLAV-based contingent. This would have involved the deployment of about 2000 personnel.

CDF Cosgrove had formed the view, however, that in order to receive the Government’s assent the deployed establishment the unit’s establishment would have to be of the order of 600 soldiers. At this size the AHQ planners had concerns over the unit’s ability to protect itself, and we made our excuses to the Americans. We played hard ball on that, making it clear that if the Americans wanted the cavalry unit it would have to be the subject of a formal request from President Bush to Prime Minister Howard. We declined other requests that we could have fulfilled.

On the size of what we ultimately contributed to this exercise in saving humanity from Saddam Hussein’s supposed WMD, Dr Palazzo commented:

In the end, due to the political requirements of the Bush Administration, it probably did not matter what Australia brought to the table, which allowed Howard to offer only niche capabilities and to take steps to minimise the risk to the personnel the ADF did send to the [Middle East Area of Operations]. There were some consequences in the Australian attitude, however. Some US officers began to make the derisive comment that the ADF’s commitment was ‘a series of headquarters’.

Perhaps the greatest deceit was the way the Government misrepresented to the people and the Parliament the reasons for the deployment. In announcing Australia’s commitment to the war Howard highlighted Iraq’s WMD and the likelihood that these weapons would make their way into the hands of international terrorists, but did not commit to the objective of regime change. He knew, however, from a very early stage (I suspect as early as 1998 when Dick Cheney visited Canberra) that the Bush Administration was committed to the ouster of Saddam Hussein. Nevertheless, he committed such a small Australian force that it had necessarily to be integrated into the US force, with regime change a fundamental objective. As Palazzo put it:

Once the war began, ADF forces who engaged Iraqi forces did so under US operational command and by default in support of their ally’s desire to overthrow Saddam, no matter the sophistry of the more limited Australian intent.

Two key conclusions stand out from Dr Pallazo’s report. First, it strengthens the case for an independent inquiry, along the lines of the UK’s Chilcot Inquiry, into how we came to be involved in the invasion of Iraq. There is enough in the report to demonstrate that there were all sorts of goings on of which the Australian public should be made aware, but not enough to write the definitive history from which we can draw and benefit from the lessons to be learned.

Second, that we cannot afford to have Executive Government (Cabinet) play such games with us in the future. Going to war is a serious business, and we must reform the way we make our decisions so that our elected representatives in the Parliament are fully involved and fully accountable.

Note: This piece was first posted on the blog Pearls and Irritations on 10 March 2017 – view original here.