Will the government save in a fuel security emergency? After a long FOI fight, the Federal Government’s plan has been made public, and it’s not comforting, Rex Patrick reports.

After a year-long $150K Freedom of Information (FOI) fight to keep secret their plans for dealing with a fuel security emergency, the Australian Government has been forced to come clean and hand them over. Should we be reassured or alarmed?

There’s no single fuel emergency scenario. Australian Governments rightly ‘wargame’ all sorts of possibilities to see how they, the Australian economy and people might cope with a major disruption of liquid fuel supplies. Australia still predominantly runs on petroleum products, without which our nation would come to a crashing halt.

State-based fuel emergency

If the pipeline between the Gore Bay Marine Terminal, west of the Sydney Harbour Bridge, and the storage tanks at Clyde near Parramatta that feed the nearby road tanker loading facilities were to fail, there would be fuel disruption across the greater Sydney metropolitan area and the State.

This would be an emergency that would engage the NSW Minister for Energy, who has extensive powers under the Energy and Utilities Administrative Act (NSW), and the NSW Department of Planning and Environment, keepers of the Petroleum Supply Disruption Response Plan. The Commonwealth Government might keep a watching brief on the State’s response, and offer assistance where required, but would not formally get involved.

Each State and Territory has their own fuel security legislation and response plans.

National fuel emergency

Only if there was a pending or actual nationwide shortage would the Federal Government step up and take charge.

A range of scenarios exist, mostly external, that could cause a national issue. A scenario in the 2019 Fuel Security emergency report the Government wanted kept from us gave a plausible scenario: a developing conflict in the Middle East where ships were being attacked in the Straits of Hormuz – at the end of an intense Australian bushfire season at which domestic fuel stocks were depleted.

A read of the 82-page ‘National Liquid Fuel Emergency Response Plan’, which is now finally public, tells the planned response story.

Empty tanks and bare shelves. Australia’s fuel and supply security exposed

Light handed measures

At the outset of a crisis, the public would start to hear of an unfamiliar new acronym – NOSEC.  The National Oil Supplies Emergency Committee, chaired by the Commonwealth but including State government officials and large fuel suppliers such as Ampol, BP, Viva (formerly Shell) and ExxonMobil, would meet up and make an initial assessment of the situation.

The response may start off in a light-handed manner. Officials and their political masters would likely seek information on the supply situation and try to avoid startling the horses. Let’s not start a panic would be the mantra.

Rising prices caused by reduced supply will cause a market response whereby less fuel is used. The Government estimates this may cause a 4-6% reduction in consumption.

The Government may also start eco-driving (website information on reducing fuel usage), car-pooling and public transport campaigns.

The ACCC may authorise fuel companies to co-ordinate activities and to give priority to certain customers (normally a breach of the Trade Practices Act, until an emergency has been declared). They would also commence intense monitoring of retail fuel prices against international prices to discourage and, if necessary, prevent price gouging.

Alert phase

Whilst the Government’s preference would be to let industry respond, it may eventually be necessary to invoke powers under the Commonwealth’s Liquid Fuel Emergency (LFE) Act.

Quiet preparation will take place to do this. Consultation with stakeholders will occur. It may be that the states, coordinated through NOSEC to ensure an integrated approach, invoke their own fuel emergency powers first.

The Federal government will watch to see how light-handed market measures and any state responses are working and how the international circumstances that caused the supply issues are playing out. Oficials will advise and prepare for LFE implementation, allocating and placing resources on standby while preparing necessary legal documents and media releases.

State ministers must be consulted (a legal requirement under the LFE Act) before a fuel emergency can be declared.

If Australia experienced a decline in fuel supplies of more than 7 per cent and this decline was not global (e.g. a significant natural disaster), Australia may also consider the merit of drawing on its rights as a member of the International Energy Agency (IEA) to seek additional petroleum supplies from other IEA member countries, if available and feasible.

Hard measures

Once an emergency is declared and announced through the media, other measures may kick in. 

The LFE Act overrides any State measures in play to the extent that they are inconsistent with national measures. The LFE Act allows the government to direct fuel refinery products and quantity outputs. That may have only limited effect as we have only two refineries now. 

All participants in the fuel supply chain may have minimum stock requirements placed on them and be required to provide the government with near-real-time fuel stock data. This would be used to prevent excessive drawdowns.

A temporary reduction in fuel standards to assist with supply may also be considered.

Fuel distribution would be controlled by the Federal Government to ensure even distribution and to direct fuels to certain priority customers. It would likely invoke fuel rationing, e.g. $40 of fuel per customer per day, or odd licence plates one day, evens the next. This would involve an associated media campaign to ensure consumers understood the rules, as per example below.

If the situation worsens, fuels could be directed to particular users: Defence, ships, transport vehicles, police/ambulance/fire, corrective services, public transport, state emergency services and health.

The government co-ordination requirements would be considerable: intra-government (Attorney Generals, ACCC, Agriculture and Water, Communications, Industry, jobs and small business, Defence, Home Affairs, Social Security, DFAT, PM&C, Treasury and Finance), inter-government and with industry.

Media will be engaged to announce the declaration and to keep the nation informed of measures.

There is a plan, but…

The Government has a plan in place. It’s now public, which means it’s available to the media in the event of a looming crisis (to assist in informing the public), and for others to scrutinise. The response to a fuel security emergency requires advanced planning and coordination. The Government has good planning documentation in place.

But the release of the documents, including a 2019 fuel emergency exercise report, reveals some concerning issues that the Government does not seem to have got on top of.

In a 2019 exercise report, it was revealed that it might take 21 days to declare an emergency.

That concern has to be understood in the context of typical in-country diesel supplies of 24 to 26 days. It’s not clear how the government estimated that period, but it’s hugely problematic.

It may be an accumulation of the need to approach a crisis in an iterative manner, determined by legislative requirements, the number of Federal agencies involved, the number of stakeholders beyond the Federal government, a lack of clear understanding of the roles and responsibilities of the various players, the lack of clear guidance on the order things ought to be done and a lack of clear thresholds for steps to be taken.

In April 2019, the Morrison Government announced a review of the LFE Act to address the issues with the LFE Act. However, the review of the LFE Act did not proceed beyond scoping and planning because it was overtaken by events, mainly the COVID-19 pandemic. Nothing seems to have happened under the Albanese government. It’s quite focussed on AUKUS, it would seem.

One must presume this 21-day implementation timeframe still exists and that’s a big vulnerability while our national fuel stocks remain so low.

Panic stations?

Another deficiency in planning is the presumption that Australians will act rationally if a fuel emergency commences. COVID toilet paper hoarding showed us that citizens acting rationally is not to a given.

If diesel were to run out, food would quickly run out. We have just over a week of dry goods consumption available at our supermarkets and about a week for chilled and frozen foods. Pharmacies will start running out of medicine in about a week.

The thought of not having food in cupboards and fridges or prescription medicines would likely exercise people’s minds a lot more than not having toilet paper.

The planning needs to consider this and clearly doesn’t.

Fuel security is an important national security issue. The most recent forced release of information under our FOI laws shows that on top of the limited supplies we have in-country at any time, we’re likely to have a three-week delay before full response measures can be put in place.

But by that time, the bulk of our national buffer may already be depleted. Things could turn ugly fast and rapidly move beyond the scenarios the Federal and State governments have war-gamed.  

But it’s not obvious anyone cares. It’s not just a muck-up; it’s an inexcusable national security failure for which we could all pay a heavy price in troubled and uncertain times.

Forget toilet paper — try no food, fuel or medicine. Why Canberra needs to act on fuel security

 

This post was originally published on Michael West.

On Thursday 32 Bills passed in the Senate in an abrogation of the chamber’s role of scrutiny – and in an attack on democratic process. Rex Patrick provides a former insider’s perspective on what happened and who has democracy’s blood and follower betrayal on their hands.

Proper Process

Parliament is nothing without procedure. It might be mainly of interest to political junkies, but it’s a critical part of our democracy. Parliament makes laws and the processes of the Parliament are intended to ensure the democratic, orderly and transparent consideration of those laws. Let’s start with proper process for the passage of a Bill through the Senate.

Step 1: When a Bill is first introduced, along with an explanatory memorandum, it’s “read a first time”. At this point the Bill can be referred to a Senate Committee for detailed examination; stakeholders and members of the public can have their say via submissions and senators can ask all sorts of questions of officials and subject matter experts.

Step 2: The next stage is the second reading debate. During this stage, senators can choose to make a 15-minute speech to express their opinions about the Bill. The speech might persuade some senators to change their own views, especially independents. It’s also useful for putting a particular position on the record for later consideration by voters. 

The second reading is an important democratic step. At the conclusion of the debate, a vote is taken on the question “that this bill be read a second time“. The Bill can be killed at this stage if the Government doesn’t have support for it.

Step 3: The third reading, or ‘committee stage’, is a Q and A session around the Senate chamber. Senators ask questions of the minister on how the Government intends the Bill will work, and answers can even be used by Courts to later resolve any ambiguity in the law. The committee stage is also where amendments are moved and senators point out the purpose and benefits of them.

Once the Bill leaves the ‘committee stage’, a vote is taken on the question, “that this bill be read a third time” If agreed to, the bill has passed all stages and assuming the House of Representative is willing to accept any Senate amendments, will go on to become law.

A parliamentary ‘guillotine’

A physical guillotine is an apparatus designed for cutting off a person’s head. A parliamentary guillotine is a procedure designed to cut off debate on a Bill. 

The guillotine can be used legitimately for an urgent Bill, or if senators are filibustering in debate. It’s not supposed to serve as a way to abrogate scrutiny and prevent advocacy for amendments.

A guillotine can occur with majority approval of the Senate. That’s important, because Labor doesn’t have a majority in the Senate; Labor’s guillotine on 32 Bills on Thursday needed support from either the Liberals or the Greens.

The lead-up to this week’s Guillotine

With Prime Minister Albanese desperate to get movement on legislation, a guillotine this week was as predictable as taxes. MMW did exactly this on Tuesday.

To guillotine, or not to guillotine? Labor’s tactical nightmare in last Parliament week

On Wednesday evening, around 7:30 PM, the Government circulated a guillotine motion. At 8:30 PM independent senator Jacqui Lambie posted on BlueSky, alerting political die-hards that the Government had signalled ‘game on’, saying:

The mother of guillotines – this is not democracy

The dealing commenced.

Senators’ advisors, who were struggling through the end of a long sitting fortnight went on alert. A furious Lambie was to stand up in the Senate the following morning to rightfully hit out at the Leader of the Government in the Senate, Senator Wong.

“Last night Minister Wong said all people in this place deserve a safe workplace, and, just an hour later, they sent a guillotine through like that. How is it safe for the employees in my office to go through 41 bills in a matter of about 12 hours? How is that safe? How bloody hypocritical. What about the right to disconnect?” 

Morning disruption

Thursday morning would have seen deals being close to settled.

At 9:03 AM, after morning prayers, Lambie stood in the Chamber and sought permission of senators to move a motion to scold the Government for their persistent guillotining of Bills – Labor had already dropped the guillotine blade on no less than 160 Bill thus far in this Parliament and was about to add to that tally. Permission was denied (any single senator can deny permission).

Lambie then sought to ’suspend standing orders’ to ask the entire Senate if she could move her motion. Debate occurred. The interesting thing was – the Greens sat silently – and when it came to the vote that would allow Lambie to admonish Labor for their excessive guillotines, the Greens voted with the Government to stop her in her tracks.

Greens’ opposition to Guillotines

The Greens have long expressed strident opposition to the use of the guillotine. They understand it chops up democracy. 

This was expressed strongly through Greens Senator Mehreen Faruqi on 28 October, a month prior. 

“The Senate is a place where a huge diversity of political views are heard and it is important that the Senate is facilitated by people who can also represent that plurality. But what we see again and again is a stitch-up between the two major parties, the Liberals and the Labor Party, and we see it again today. This is not the first time it has happened. We talk about democracy here—this is the chamber of review—but again and again democracy is shut down. How many times have we seen, just in the last couple of years, debate being shut down by guillotine motions? …”

So, back to last Thursday, one might have been surprised at what happened next. 

At 9:46 AM Labor’s Senator Gallagher rose to set up a guillotine. And the Greens supported it!

The Government lost the vote 33 (yes) and 34 (no). The business of the Senate would, at least for a short while, take its ordinary course.

If at First You Don’t Succeed

At 12:20 PM Wong rose to her feet in the Senate to again seek to set up a guillotine. After 30 minutes of proposals and counterproposals across the chamber, a 30 Bill guillotine was put in place. The vote was won 34 (yes) to 32 (no).

The Greens again supported the guillotine.

But before putting the guillotine motion to the vote Wong foreshadowed adding two more Bills to the guillotine, one of which was the Online Safety Amendment (Social Media Minimum Age) Bill 2024 – a Bill that the Greens purportedly bitterly opposed.

Further principles abandoned

Wong then acted to include the further two Bills. The Greens knew that the Government, with Coalition support, had the numbers to pass the Social Media Minimum Age Bill, but supported it being included in the guillotine.

That was despite the earlier words of Senator Sarah Hanson-Young on the Social Media Minimum Age Bill. 

Firstly, let me say what a disgrace it is that this bill, only tabled in the House of Representatives last Thursday, has been railroaded and rushed through the process here across the parliament.

It was tabled in the House Thursday, sent to a Senate inquiry that sat for only three hours on Monday. Submissions from stakeholders and interested parties were open for less than 24 hours on Friday—talk about putting out the bins, taking out the rubbish! That’s exactly how this whole bill has been treated by the major parties.

The reason that this bill is being rushed without scrutiny and without appropriate review is both the Leader of the Opposition, Mr Dutton, and the Prime Minister are worried that if people really knew about what the consequences of this piece of legislation meant, they wouldn’t support it.

The Government’s deal with the Greens must have been a good one to flush away Hanson-Young’s concerns. And that includes the concern she had express about young and vulnerable children.

They’ll be pushed into the darkest parts of the web and they won’t want to tell their parents what’s going on because they’ll be worried their phone will be taken away, so they will spiral further and further into isolation from their friends, their family, medical experts who may be able to help them, school counsellors and teachers. They’ll become even more isolated and vulnerable.

Too bad, so sad kids!

Air thick with betrayal

Hypocrisy and betrayal was thick in the air. Those watching the Chamber though would have seen the Greens opposing the Social Media Minimum Age Bill at the third reading stage – looking like they were fighting the good fight. But the reality was, they passed the Bill the moment they voted for the guillotine. What happened visually after that was just a swindle.

Social Media Minimum Age Bill final vote

For the Greens, as with Labor and the Coalition, commitment to democratic process all too often falls by the wayside as partisan interests prevail.  

This post was originally published on Michael West.

Hundreds of climate protestors disrupted the last sitting week of the Federal Parliament on Wednesday, with 24 of them arrested, two spent the night in custody, the rest released on condition they stay away for two years. Wendy Bacon reports.

Rising Tide travelled from Newcastle to Canberra on Monday and set up camp at the invitation of the Aboriginal Tent Embassy, which is supporting the climate activists. Their forty-eight-hour vigil ends today. Protesters are demanding an end to new or expanded fossil fuel projects and a 78% tax on fossil fuel profits to support communities that are currently dependent on fossil fuel jobs.

Protesters are already bitterly disappointed with what they see as a Labor betrayal of a promise to improve climate policy. Instead of decreasing, coal exports will rise back over 200 million tonnes per annum in the next two years, while gas exports have settled at levels 60% higher than in 2016.

The Australian taxpayer also continues to subsidise the fossil fuel industry while the Labor government actively entertains the illusion of carbon capture and storage.

Labor’s hat-trick: three coal mine approvals in one day

On Wednesday, Rising Tide protesters occupied the foyer and also the road in front of Parliament House, chanting: “Flood, fires famine, we are terrified. But we will overcome, like the Rising Tide.” They held up a large banner that said, “Albo: Stop new coal and gas, or we will.” Police ejected protestors one by one.

One protester, Sally Novak, a primary school teacher from Newcastle, said:

I’m here to take action because our government haven’t done what they promised they would when they were elected.

Twenty-four people were arrested, and two spent the night in custody; others were released on the condition that they do not go near the Australian parliamentary precinct for two years, is bound to be challenged in court as anti-democratic and amounting to extra-judicial punishment.

The Canberra protest followed Australia’s largest climate civil disobedience protest in which the Port of Newcastle was disrupted for several days, and 173 people were arrested.

Climate protests to continue despite 170 charged in Newcastle ‘protestival’

Many of them have been charged under the draconian anti-protest section of the NSW Crimes Act. A large alliance of civil and human rights groups are campaigning to have the section repealed.

The anti-protest laws have already been found to be partly unconstitutional by the NSW Supreme Court, so some of these cases are likely to be strongly fought by a team of pro bono lawyers who support civil liberties.

A protest for the age and for all ages

Two of the under-18-year-olds arrested in Newcastle marched defiantly back into the Rising Tide camp after their arrests, and 16-year-old student Niamh Cush told the rally in Canberra that before the Rising Tide event, she wrote to Prime Minister Albanese asking him to meet her on the lawns. “I asked him to explain why he has approved 28 new coal and gas projects on stolen land since coming into power. I’ve heard nothing. His silence says it all.”

Young people demand to know when Albanese is going to stop jeopardising the future of our generation by approving new coal and gas projects.

“Governments have been warned about the danger of the climate crisis for long before I was born. It’s unforgivable that those who swore to protect are choosing to betray the youth of Australia by continuing to prioritise the profits of coal and gas billionaires. The Government is burning my future by allowing new fossil fuels – when is it going to stop?”

Thirteen-year-old Han, also arrested on Sunday, told other protesters, “I was one of 31,000 people who lost their homes in the 2022 Northern Rivers flooding. I’m here today because I’m really, really angry that our government is sitting in their air-conditioned board rooms watching our future burn and doing nothing about it.”

Rising Tide has a grassroots model for growth that involves local groups conducting many meetings in community centres and churches to build support and momentum. This enabled them to escalate and grow between 2023 and 2024: protest numbers in Newcastle almost tripled, and arrests increased by 60%.

As Rising Tide volunteer teams wrap up their Canberra camp, they are warning that they plan to further escalate civil disobedience actions on climate, coal and gas in the lead-up to the Federal Election and beyond.

Older people who feel they have failed younger generations are also joining the movement in significant numbers. After several failed attempts in Newcastle, June Norman, 84-year-old great-grandmother from the Noosa Hinterlands, QLD, was also arrested on Wednesday,

I fear so much for the future of my 8 grandchildren and 5 great grandchildren and their generation who are facing great hardships as we grapple with sea level rise, floods, fires and droughts.

“I have a duty to protect the environment so that my grandchildren and great-grandchildren can live in peace with a healthy environment. I became an activist at 65. I want my grandchildren to know that I did everything that I could so that they could live in peace with a healthy environment.”

Labor looks the other way

Labor is not visible at the climate protests. But the Greens have seized this opportunity.

“We are with the Rising Tide,” Deputy Leader Mehreen Faruqi declared in the Senate yesterday. “And the greens are with the rising tide. It was a real privilege to join the rising tide with 1000s of courageous climate warriors in Newcastle on the weekend. Right there, we saw the best example of people power.”

No amount of over-policing or cracking down on our right to dissent will stop these climate defenders from showing up to protect our planet and our future.

Greens politicians, from leader Adam Bandt to Greens Councillors from around Australia, were out on Newcastle Harbour at the weekend. As it heads for the end of this term of parliament, Labor is completely absent from the Rising Tide movement. It offered promise on climate but has bitterly disappointed many as it continues to new and expanded coal mines and gas fields.

If all that was not enough, the WA Premier boasted yesterday that he had personally lobbied Prime Minister Albanese not to pass the Nature Postive bills in this term of parliament. As this news broke, protesters were occupying parliament.

Protesters v Carbon scammers | The West Report

This post was originally published on Michael West.

Australia’s supply security in the event of a crisis goes way beyond toilet paper hoarding. And the Government doesn’t want us to know about it. Rex Patrick in another battle for transparency.

The Department of Climate Change, Energy, the Environment and Water (DCCEEW) went in hard to defend secrecy around Australia’s preparedness to deal with a fuel security emergency. But they’ve been dealt a total defeat in the Administrative Review Tribunal, sadly at your expense.

In 2013, retired Air Vice Marshal John Blackburn produced a report into Australia’s Liquid Fuel Security for the NRMA. The report spelt out what would happen if Australian freight operations and logistics were shut down due to a lack of fuel.

Food would quickly run out. We have just over a week of dry goods consumption available at our supermarkets and about a week for chilled and frozen foods. Pharmacies will start running out of medicine in about a week.

And that’s if there isn’t panic buying, which COVID shows us would be highly likely. The thought of not having food in cupboards and fridges or prescription medicines would likely exercise people’s minds a lot more than not having toilet paper.

For hospitals, it’s even worse. Hospitals typically hold a three-day reserve. Local petrol stations would run out of fuel in three days.

Putting food and medicine aside, this would cripple the country economically.

Our “just in time” economy and society is absolutely dependent on uninterrupted fuel supplies. And yet Australia has only 26 days of in-country supply of diesel.

Scrutiny required

In May 2023, I requested access to fuel security emergency documents. To be honest, I did it because I was preparing to write a fuel security article for MWM. My request entailed three documents:

1. A report from a 2019 national fuel security exercise
2. The minutes of two (then recent) meetings of the National Oil Supply Emergency Committee (NOSEC)
3. The National Liquid Fuel Emergency Response Plan (NLFERP) Manuals

With fuel security being such an important issue, I wanted to see how well the Federal and State Governments fared on their most recent fuel security exercise and what was being discussed at the national gathering dealing with fuel security.

I also wanted to be able to see how the Government might react to a fuel supply emergency.

DCCEEW refused me access to everything. Not a single word was to be released to me.

I appealed their decision to the Administrative Review Tribunal. Throughout the year-long battle, the Department trickle-released a few and then more of the documents. It was like a slow-motion strip tease. But even then, the Department said the sky would fall in if some documents were released.

The Tribunal has now handed down its decision. Everything – except the names and contact details of officials, which I did not press for – is to be released to me.

The cost of secrecy

Answers to Senate questions-on-notice by Senator Lambie show that the Department has spent $110,000 in their failed secrecy fight. That cost does not include the commercial counsel and two lawyers present for the hearing and the work in the immediate lead up to the hearing, A more reasonable estimate of the final bill to the unfortunate taxpayers will be closer to $150,000.

The arguments the Department and their lawyers adopted had more holes in them than a fuel strainer.

In relation to the fuel security report (Document 3) the Department argued that it might reveal vulnerabilities in our fuel security. The Tribunal did not agree, particularly noting the age of the report.

When it came to to the minutes of the National Oil Supply Emergency Committee meetings, the Department argued that State officials might abandon their statutory duties to best represent their State if there was a risk of transparency. The Tribunal rejected that shrinking violet proposition.

Regarding the National Liquid Fuel Emergency Response Plan Manuals, DCCEEW argued that releasing them would enable a foreign state actor to interfere with the national response to a fuel security emergency. The Tribunal was highly critical of the Department advancing this just on a vibe.

In response to my submission that the cause of toilet paper panic during COVID was the result of a lack of public appreciation that toilet paper is actually made in Australia, the Tribunal recognised the benefit of the plan being publicly available, including to the media.

All up, DCCEEW has faced a humiliating defeat that has sadly cost the taxpayers significant money in commercial legal fees.

The largest frustration in all of this, and perhaps the biggest scam in the story, is that there will be no consequences for the erroneous decision made, the high cost to the taxpayer of the proceedings and the year long delay that’s been experienced in the release of the documents to the public.

There really needs to be some accountability here.

Bureaucrats who are found to have wilfully obstructed the release of information under the Freedom of Information regime and have had their decisions overturned should be subject to penalties including suspension without pay, demotion or other financial penalties.

A few heads on pikes might encourage a more positive culture of openness and transparency in the Australian Government.

Forget toilet paper — try no food, fuel or medicine. Why Canberra needs to act on fuel security

 

 

This post was originally published on Michael West.

Despite draconian anti-protest laws, the world’s biggest coal port was closed for four hours, 170 protestors were charged and climate demonstrations will continue. Wendy Bacon reports.

Newcastle port, the world’s biggest coal port, was closed for four hours on Sunday when hundreds of Rising Tide protesters in kayaks refused to leave its shipping channel. 

Over two days of protest, 170 protesters have been charged. Some others who entered the channel were arrested but released without charge. Hundreds more took to the water in support. 

Thousands on the beach chanted, danced and created a huge human sign demanding ‘no new coal and gas’ projects. Rising Tide is campaigning for a 78% tax on fossil fuel profits to be used for a “just transition” for workers and communities, including in the Hunter Valley where the Albanese government has approved three massive new coal mine extensions since 2022. 

Labor’s hat-trick: three coal mine approvals in one day

Bleeding the 5,000 as protest size doubles

The NSW Labor government made two court attempts to block the protest from going ahead. But the ten day Rising Tide protest doubled in size from 2023 with 5000 people participating so far and more people arrested in civil disobedience actions than last year.

The ‘protestival’ continued in Newcastle on Monday and a new wave will start in Canberra at the Australian Parliament on Wednesday. Here Rising Tide will stage an overnight occupation of the lawn outside Parliament House and a demonstration at which they will demand to meet with Prime Minister Anthony Albanese.

News of the ‘protestival’ has spread around the world with campaigners in Rotterdam in The Netherlands blocking a coal train in solidarity with this year’s Rising Tide protest.  

138 of those arrested have been charged under S214A of the NSW Crimes Act for disrupting a major facility, which carries up to two years in prison and $22,000 maximum fines. This section is part of the NSW government regime of ‘anti-protest’ laws designed to deter movements such as Rising Tide. 

The rest of the protesters have been charged under the Marine Safety Act which police used against 109 protesters arrested last year. Even if found guilty, these people are likely to only receive minor penalties.Those arrested in 2023 mostly received small fines, good behaviour bonds and had no conviction recorded. 

Executive gives bird to judiciary

The use of the Crimes Act will focus more attention on the anti-protest laws which the NSW government has been extending and strengthening in recent weeks. The NSW Supreme Court has already found the laws to be partly unconstitutional but despite huge opposition from civil society and human rights organisations, the NSW government has not reformed them. 

Two protesters were targeted for special treatment: Naomi Hodgson, a key Rising Tide organiser, and Andrew George who has previous protest convictions.

George was led into court in handcuffs on Monday morning but was released on bail on condition that he not return to the port area. Hodgson also has a record of peaceful protest. She is one of the Rising Tide leaders who have always stressed the importance of safe and peaceful action.

The police prosecutor argued that she should remain in custody. The magistrate released her with the extraordinary requirement that she report to police daily and not go nearer than 2 kilometres from the port.  

Planning for this year’s protest has been underway for 12 months with groups forming in Brisbane, Adelaide, Melbourne and the Northern Rivers as well as Newcastle. There was an intensive program of meetings and briefings of potential participants on the motivation for protesting, principles of civil disobedience and the experience of being arrested. Those who attended last year recruited a whole new cohort of protesters.

Last year, the NSW police authorised a protest involved a 48 hour blockade which protesters extended by two hours. Earlier this year, a similar application was made by Rising Tide. The first indication that the police would refuse to authorise a protest came earlier this month when the NSW police successfully applied to the NSW Supreme Court for the protest to be declared “an unauthorised protest.”

But Justice Desmond Fagan also made it clear that Rising Tide had a “responsible approach to on-water safety” and that he was not giving a direction that the protest should be terminated. Newcastle Council agreed that Rising Tide could camp at Horseshoe Bay. 

Minns’ bid to crush protest

The Minns government showed that its goal was to crush the protest altogether when the Minister for Transport Jo Haylen declared a blanket 97 hour exclusion zone making it unlawful to enter the Hunter River mouth and beaches under the Marine Safety Act last week.

On Friday, Rising Tide organiser and  2020 Newcastle Young Citizen of the year, Alexa Stuart took successful action in the Supreme Court to have the exclusion zone declared an invalid use of power. 

An hour before the exclusion zone was due to come into effect at 5 pm, the Rising Tide flotilla had been launched off Horseshoe Bay. At 4 pm, Supreme Court Justice Sarah McNaughton quashed the exclusion zone notice, declaring that it was an invalid use of power under the Marine Safety Act because the object of the Act is to facilitate events, not to stop them happening altogether. 

When news of the judge’s decision reached the beach, a big cheer erupted. The drama-packed weekend was off to a good start. 

Friday morning began with a First Nations welcome and speeches and a SchoolStrike4Climate protest. Kayakers held their position on the harbour with an overnight vigil on Friday night. 

Midnight Oil performs

On Saturday, Midnight Oil front singer Peter Garrett, who served as Environment Minister in a previous Labor government, performed in support of Rising Tide protest. He expressed his concern about government overreach in policing protests, especially in the light of all the evidence of the impacts of climate change.

Ships continued to go through the channel, protected by the NSW police. When kayakers entered the channel while it was empty, nine were arrested.

84 year old great-gran not charged

By late Saturday, three had been charged and the other six were towed back to the beach. This included June Norman, an 84 year old great-grandmother from Queensland, who entered the shipping channel at least 6 times over the weekend in a peaceful acts of peaceful civil disobedience.

 

She told Michael West Media that she felt a duty to act to protect her own grandchildren and all other children due to a failure by the Albanese and other governments to take action on climate change. The police repeatedly declined to charge her.   

On Sunday morning a decision was made for kayakers “to take the channel”. At about 10.15, a coal boat, turned away before entering the port. 

Port closed, job done

Although the period of stoppage was shorter than last year, civil disobedience had now achieved what the authorised protest achieved last year. The port was officially closed and remained so for four hours. By now, 60 people had been charged and far more police resources expended than in 2023, including hours of police helicopters and drones. 

On Sunday afternoon, hundreds of kayakers again occupied the channel. A ship was due. Now in a massive display of force involving scores of police in black rubber zodiacs, police on jet skis, and a huge police launch, kayakers were either arrested or herded back from the channel. When the channel was clear, a huge ship then came through the channel, signalling the reopening of the port. 

On Monday night, ABC national news reported that protesters were within metres of the ship. MWM closely observed the events. When the ship began to move towards the harbour, all kayaks were inside the buoys marking the channel. Police occupied the area between the protesters and the ship. No kayaker moved forward.

A powerful visual message had been sent that the forces of the NSW state would be used to defend the interests of the big coal companies such as Whitehaven and Glencore rather than the NSW public.  

By now police on horses were on the beach and watched as small squads of police marched through the crowd grabbing paddles. A little later this reporter was carrying a paddle through a car park well off the beach when a constable roughly seized it without warning from my hand.

When asked, Constable Pacey explained that I had breached the peace by being on water. I had not entered the water over the weekend.  

Kids arrested too in mass civil disobedience

Those charged included 14 people under 18. After being released, they marched chanting back into the camp. 16 year old Newcastle student Niamh Cush told a crowd of fellow protesters before her arrest that as a young person, she would rather not be arrested but that the betrayal of the Albanese government left her with no choice.

“I’m here to voice the anger of my generation. The Albanese Government claims they’re taking climate change seriously but they are completely and utterly failing us by approving polluting new coal and gas mines.See you out on the water today to block the coal ships!”

Each of those who chose to get arrested has their own story. They include environmental scientists, engineers, TAFE teachers, students, nurses and doctors, hospitality and retail workers, designers and media workers, activists who have retired, unionists, a mediator and a coal miner.

They came from across Australia – more than 200 came from Adelaide alone – and from many different backgrounds. 

Behind those arrested stand volunteer groups of legal observers, arrestee support, lawyers, community care workers and a media team. Beside them stand hundreds of other volunteers who have cleaned portaloos, prepared three meals a day, washed dishes, welcomed and registered participants, organised camping spots and acted as marshals at pedestrian crossings. Each and every one of them is playing an essential role in this campaign of mass civil disobedience.

Many participants said this huge collaborative effort is what inspired them and gave them hope, as much as did the protest itself. 

Threat to democracy

Today, the President of NSW Civil Liberties Tim Roberts said, “Paddling a kayak in the Port of Newcastle is not an offence, people do it every day safely without hundreds of police officers. A decision was made to protect the safe passage of the vessels over the protection of people exercising their democratic rights to protest. 

“We are living in extraordinary times. Our democracy will not irrevocably be damaged in one fell swoop – it will be a slow bleed, a death by a thousand tranches of repressive legislation, and by thousands of arrests of people standing up in defence of their civil liberties.”

Australian Institute research shows that most Australians agree with the Council for Civil Liberties – with 71% polled including a majority of all parties believing that the right to protest should be enshrined in Federal legislation, including a majority across all ages and political parties. 

It is hard to avoid the conclusion that it is a fear of accelerating mass civil disobedience in the face of a climate crisis that frightens both the Federal and State government and the police. 

As temperatures rise

Many of those protesting have already been directly affected by climbing temperatures in sweltering suburbs, raging bushfires and intense smoke, roaring floods and a loss of housing which has not been replaced, devastated forests, polluting coal mines and gas fields or rising seas in the Torres Strait in Northern Australia and Pacific Island countries.

Others have become profoundly concerned as they come to grips with climate science predictions and public health warnings.

In these circumstances and as long as governments continue to enable the fossil fuel industry by approving more coal and gas projects that will add to the climate crisis, the number of people who decide they are morally obliged to take civil disobedience action  will grow.

Rather than being impressed by politicians who caste them as disrupters, they will heed the call of Pacific leaders who this week declared the Cop 29 talks to be a “catastrophic failure” exposing their people to “escalating risks”. 

Wendy Bacon is a Rising Tide supporter 

Draconian: South Australia just topped NSW, Tas, Victoria, Queensland with new laws penalising peaceful protesters

This post was originally published on Michael West.

It’s the biggest and most controversial Defence project in the country’s history with $368B worth of eggs put in the one basket. The Government would have you believe it’s all going well. Former project manager and submariner Rex Patrick serves up the truth.

In April 2024, MWM set out the high-level risks associated with the AUKUS nuclear submarine program; political, economic, technical and management, with the article delving into some of the risks already in play.

AUKUS risks unveiled – is Australia sleepwalking into a submarines disaster?

But with the project having passed its third birthday, it’s worth looking at the various stages of the plan on record to see how things are unfolding.

Housing US submarines from 2027

The first stage of the AUKUS sub program is the forward deployment of four US Navy submarines to operate out of HMAS Stirling in WA. This is likely to happen, but not without some considerable community pain.

In terms of infrastructure at HMAS Stirling to support the deployment, in June Assistant Minister Andrew Leigh referred a $738M HMAS Stirling upgrade project to the Federal Parliament’s Joint Committee on Public Works including upgraded berthing facilities, dredging for nuclear-powered submarines, construction of a Radiological Controls Technical Field Office, a radioactive waste facility, power stations (including for nuclear sub shore supplies) and a pure water processing plant.

This work was rubber-stamped by the Labor-Coalition controlled joint committee and will commence in 2026 and complete in 2027. It’ll proceed without significant risk.

But there’s a huge problem which will only end up in pain and suffering. 

Defence estimates 700 new Australian AUKUS related positions will be established over the coming few years and an additional 700 US military personnel will move to WA. Defence has estimated an additional 500 houses will be required to meet US personnel needs.

Perth, like other major cities across Australia, is facing a housing crisis. In the last 12 months 15,000 new dwellings were constructed in Perth while the population increased by 94,000 – resulting in severe undersupply conditions.

Defence doesn’t seem to have a plan on record of how they intend to address these needs. The cash loaded AUKUS project team will likely solve this problem by simply outbidding the locals, denying everyday West Australians housing opportunities. Suffer the people.

HMS Phantom from 2027

The optimal pathway also has the United Kingdom operating one of the Royal Navy’s Astute Class nuclear subs out of HMAS Stirling from 2027.

Whatever advice Defence Minister Richard Marles is getting on this aspect of AUKUS, if it’s honest it’ll start with the idiom, “tell ‘em they’re dreaming”.

There’s been periods over the last year where the Royal Navy has been unable to put any of its Astute subs to sea. The situation has improved over the past month, but there’s some very challenging problems arising from the run-down of the UK’s defence industrial base meaning low availability is likely to be a feature moving forward.

In the last week we’ve also heard the UK Government is considering mothballing the Royal Navy’s aircraft carriers to ease their budget pressures.

Britannia once ruled the waves, but that’s not been true for a century. Today’s Royal Navy is a shadow of its former self, barely hanging on to middle power status with little sustainable global power projection. One would have to bet against any consistent and sustained UK sub presence at HMAS Stirling in the years to come.

Virginia Class hopes

From around 2035 and beyond the Australian Government hopes that the US Navy will transfer between three and five Virginia class submarines to the Royal Australian Navy (RAN). Laws passed in the US Congress a year ago prohibit such transfers if they would have a negative outcome on US national security or foreign policy.

The US Navy currently has 49 nuclear attack submarines in service (with actual availability of subs in the low 30s). To meet their national needs, they need 66 subs by 2054. To meet that need, and the higher priority nuclear ballistic submarine requirements, and Australia’s AUKUS needs, they must have a production rate of at least 2.3 subs per annum.

They’re nowhere near that target – since 2022 they’ve only been building somewhere between 1.1 and 1.4 boats per annum. This has resulted in a backlog.

To address their submarine industrial capacity shortfall the US Government is investing $US14.7B. Australia agreed to pour (a non-refundable) $US3B subsidy into US industry as well. But that total still falls well short of the $US28.4B the US Administration deemed was required for the work.

The construction dial is not moving. Talk of building a third US shipyard has evaporated and the US Navy is only seeking funding for one Virginia class sub next year, recognising the impossibility of building two. 

US priorities

Meanwhile, the US Government Audit Office has assessed the Columbia ballistic missile submarine program as running at least 12 months behind schedule and the US Navy is already planning and scheduling extension programs for a number of the Ohio Class submarines the Columbias are to replace.

That nuclear deterrent program will get priority over AUKUS and US Virginia Class subs. And there’s talk that the US Navy might call for more ballistic missile subs, increasing pressure further.

abandon any nuclear submarine ambitions and instead purchase other defence capabilities

The US Congress is being advised that a more realistic proposition for Australia and AUKUS moving forward is for the number of US Navy subs based at HMAS Stirling to be increased from four to eight, with none transferred to the RAN. The highly respected Congressional Research Service is proposing we abandon any nuclear submarine ambitions and instead purchase other defence capabilities.

Vice Admiral Mead, the head of the Australian Submarine Agency, has buried his head in the sand in respect of the US not reaching 2.3 subs per annum, purporting to know more about US submarine construction than the US Navy itself. His blind faith, some say arrogance, on the issue has been apparent to all who watch Senate Estimates.

Submarine crewing

The crew of a Collins Class submarine is about 50. A force of six submarines means we need a theoretical 300 submariners, but in reality (considering training pipelines, sea-shore rosters, medical issues) we need about 800 submariners.

The crew of a nuclear-powered sub is about 140. Eight submarines would require a theoretical 1,120 submariners, but in reality, we’d need 3000 submariners; an increase of 2200 from current numbers.

But ADF numbers have been going down (they were about 4,400 below authorised levels mid-year) with no real sign Defence has any solid plan to get the numbers up generally, let alone to fill the more challenging roles such as submariner.

Nuclear workforce

Documents released to MWM under FOI show that there are also problems building up the civilian nuclear workforce required for AUKUS. That’s another challenge for the Defence Department.

Secret Defence docs: we need a large civilian workforce for AUKUS nuclear submarine reactors

 

Nuclear weapon proliferation risk

The Government spent $35M last financial year trying to negotiate a change to Article 14 of our Comprehensive Safeguards Agreement to the Nuclear (weapon) Non-proliferation Treaty to allow us to take possession of nuclear-powered subs. $40M was allocated for FY 2024/5.

But there is resistance among the member countries of the International Atomic Energy Agency, with China stridently against Australia securing modification of Article 14.

Many non-aligned members have little inclination to do Australia and the US any favours. Arms control and non-proliferation experts warn modifying nuclear safeguards to accommodate AUKUS would create a dangerous precedent whereby nuclear weapon States could transfer weapon grade uranium to another country (e.g. Russia to Iran) via a submarine program.

There’s no guarantee that agreement will be reached and a failure to do so will bring the entire project crumbling down – neither the US or UK are prepared to transfer nuclear material to Australia without agreement being reached.

The Government seems, at least from the outside, to be oblivious to the risks. They’re adopting a ‘she’ll be right’ view.

SSN-AUKUS delivery

I won’t bury the lede on the final item. The chance of the UK delivering its own SSN-AUKUS submarine to the Royal Navy on time is zero, nil, zilch. And that means the chance of an Australian built SSN-AUKUS submarine being delivered on time is zero, nil, zilch.

The Royal Navy’s current order of battle would have Horatio Nelson turning in his grave and a generous description of the UK’s naval shipbuilding industry would be ”a basket case” – a national endeavour infested with delays and cost overruns.

Choosing the UK to design a next generation submarine for Australia has to be the dumbest move by Australian Defence in recent memory. 

One might have thought the Government would have looked to the UK Hunter class frigate program we signed up to. It went from a very expensive $30B for 9 frigates, to $45B for 9 frigates, to $45B for 6 frigates. On top of which the program is several years behind its original schedule resulting in the Navy running a separate off-the-shelf construction program (called SEA 3000) with an undisclosed (but more likely unknown) 

The chance of an SSN-AUKUS project being continued by a future government must realistically be close to zero.

Adult supervision required

Risk, cost, loss of sovereign control; AUKUS is a mess.

But as far as the major party politicians in Canberra are concerned, it’s a project too big to fail. The Liberal/National Coalition came up with the idea and then the Labor Party swallowed it, hook, line and sinker.

No-one in Canberra, with the exception of Senator Shoebridge and Senator Lambie, are conducting any oversight of the project. There are very few adults in the room, but none with a real understanding of submarines. And that should have every Australian worried. 

Too big to fail? Folk once said something like that about a ship called ‘Titanic’.  

This post was originally published on Michael West.

Stealth and surprise are related tactical characteristics that are key to a submarine’s success in battle. They are also, it seems, key tactical characteristics for the Government advancing a highly controversial AUKUS submarine program. Ex-submariner Rex Patrick explains.

Those familiar with the classic work of Douglas Adams, Hitchhiker’s Guide to the Galaxy, will remember the scene where Arthur Dent lies in front of a bulldozer to stop his house being demolished to make way for a new freeway bypass. Arthur complains that he has only just learned of the project. Mr Prosser, the manager in charge of progressing the bypass, points out that the plans have been available for Dent to examine for several months:

Mr Prosser: But, Mr Dent, the plans have been available in the local planning office for the last nine months.

Arthur: Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean like actually telling anybody or anything.

Mr Prosser: But the plans were on display…

Arthur: On display? I eventually had to go down to the cellar to find them.

Mr Prosser: That’s the display department.

Arthur: With a torch.

Mr Prosser: The lights had probably gone out.

Arthur: So had the stairs.

Mr Prosser: But look, you found the notice, didn’t you?

Arthur: Yes, yes, I did. It was on display at the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying beware of the leopard.

The arrangements for public consultation on AUKUS-related developments bear a great deal of resemblance to this.

Low-level waste in Perth and Adelaide

It would be unfair to suggest that the Albanese Government wasn’t up-front in its plans to base nuclear submarines at HMAS Stirling on Garden Island, near Perth, from 2027 and to build nuclear submarines at Osborne, in the Adelaide metropolitan area in the late 2030s.

But it is fair to say that the communities of Perth and Adelaide weren’t engaged on the issue, and certainly not on details that may have direct impacts on them. The first revelation to the public that Garden Island would become the home for the storage of low-level nuclear waste was after an FOI was released to me in December 2023.

Marles is wrong – Australia is taking US and UK nuclear waste!

After a very short consultation a license to store waste in a facility to be built on Garden Island was approved by the Australian Radiation Protection and Nuclear Safety Agency.

And it’s only just breaking news in Adelaide this week that low level radioactive waste will also be stored at the naval shipyard at Osborne. The media only became aware of the issue after the passage of the Australian Naval Nuclear Power Safety Bill 2023 brought out some protest by local interest groups and a nearby council.

Adelaide nuclear environmental checks

As might be expected, before a nuclear submarine construction yard can be built, the Australian Submarine Agency needs to jump though federal environmental hoops in relation to protected matters. Protected matters include; World heritage, wetlands, threatened species, marine environment, migratory species and nuclear actions.

The Submarine Agency initiated a process to address legislated environmental requirements in November 2023. They started a public consultation as part of that process. In January 2024 the Port Adelaide Residents Environment Protection Group made a submission highlighting the fact that there were no plans to address ‘nuclear actions’.

However, on 22 June 2023, the Parliament passed the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill. Most were oblivious to the fact that the Bill created a carve-out for naval nuclear propulsion plants from regular environmental approval and regulation.

The parliamentary library was alert to the potential implications, warning senators:

It is also unclear to what extent existing exemption provisions in the ARPANSA Act and the EPBC Act exempting declared activities from approval requirements could be utilised at the discretion of the relevant decision-makers at some future point in time on the grounds of defence or national security. This would exempt SSNs and associated infrastructure and facilities from the approval requirements under these Acts, leaving the yet-to-be-established ANPSSR as the principal regulator of SSNs and their supporting infrastructure and facilities.

We now understand there will be no EPBC Act nuclear action approvals for the new Osbourne Site. Rather, environmental issues will be handled by the Director-General of the Australian Naval Nuclear Power Safety Regulator – a bureaucrat sitting inside the Defence portfolio.

Nuclear reactors in Perth and Adelaide

Along with the lack of consultation on low-level waste, perhaps of greater significance is the lack of consultation on the fact that nuclear reactors will be operating not far from Rockingham in WA and the Adelaide metropolitan area.

Parliament formalised that fact with the passage of the Australian Naval Nuclear Power Safety Bill 2023.

The Government cast the Australian Naval Nuclear Power Safety Bill 2023 as “a Bill that establishes a framework to regulate the nuclear safety aspects of Australia’s nuclear-powered submarine enterprise”. It sounds a little innocuous, but the Bill did a lot more than that.

Section 10 of the Bill declared both HMAS Stirling and Osborne designated zones for naval nuclear production facilities. In 15 years, when nuclear reactors go critical for the first time at Osborne, residents will have to look back to the afternoon of Thursday, 10 November 2024, when the Bill was passed in the Senate.

And if they look hard they’ll see that the Bill was passed in a blitzkrieg Labor guillotine manoeuvre, supported by the Coalition, which saw it go through the Senate without any debate. Thirty amendments were put to the vote without any senator being allowed to explain or speak to their amendments.

Perfect for a decision that would otherwise have invoked considerable public debate.

For those in opposition to AUKUS, the show is effectively already over.

East Coast nuclear submarine base

Stealth and surprise are the preferred modus operandi of a Prime Minister whose constituent base opposes the $368 billion AUKUS nuclear project.

So, it’s little wonder the Government has not moved to reveal the East Coast basing location for future nuclear submarines. Port Kembla is the likely location, but no one is saying anything definitive and certainly won’t do so before next year’s federal election.

Prime Minister Albanese was quite insistent on opposition leader Peter Dutton revealing his future plans for seven nuclear power station sites,

but he’s utterly unwilling to apply the same transparency upon himself.

In some sense, the arrival of enough nuclear submarines to warrant a second base is decades away (as are Peter Dutton’s power reactors). Hence, there’s only political harm in announcing a base. That will likely be left to some future government after Albanese has left the Parliament.

High-level nuclear waste facility

This week, I had a first direction hearing in the new Administrative Review Tribunal as I challenged the Albanese Government’s secrecy around a report on how a future high-level nuclear facility site will be selected. It was refused to me under FOI.

The Government refused to release the report on the basis that it is a cabinet document. However, now that we’re in the big FOI league they’re backing up their claim with other exemptions, including national security exemptions. While we’ll have to see how the Government’s legal arguments play out, in some sense, it might be all moot.

When the Parliament declared HMAS Stirling and Osborne designated zones for nuclear submarine activities, it also passed into law the ability for a Minister to declare any other area a designated zone – for example, to store high-level waste.

There is no requirement for public consultation about a High-Level Nuclear Waste Facility location. As the selection of Kimba as the site of a low-level National Radioactive Waste Management Facility at Kimba proved, that might all be a bit too hard. Better then, at least as far as the Government is concerned, to have an unconstrained selection power tucked away for when the need arises.

Surprise and stealth is the AUKUS way.

Nuclear waste. Fifty years of searching, still nowhere to dump it.

The big picture obscured

On 5 April 2023, I made an FOI request for the “Analysis of likely/necessary legislative change associated with the AUKUS program”. The idea was to get access to the big picture of the new legal measures the Government might want to enact to push AUKUS through.

Access was refused and an appeal of the decision is currently buried in the Office of the Australian Information Commissioner. It will, as the Government would understand, take another few years before a decision on the appeal is made. By that time, it will be of historical interest only.

That suits the Government just fine. Imagine the big picture being available to the public up-front. On a contentious project like this, transparency would just be a little too dangerous.

The Defence Department and its nominal political masters rely on a broken FOI system to preserve their options for surprise and secrecy. They might as well have requested a sign to put on that FOI file: Beware of the Leopard.

AUKUS ‘JobGiver’: a non-recourse handout to overseas companies and workers

 

 

This post was originally published on Michael West.

An alleged plot involving firearms and threatening the life of New Zealand pilot Philip Mehrtens when held hostage in Papua this year is being investigated by the Australian Federal Police. Duncan Graham reports.

An alleged plot involving firearms and threatening the life of Kiwi pilot Philip Mehrtens when held hostage in Papua this year is being investigated by the AFP.

The case involves “advancing a political cause by the separation of West Papua from Indonesia … with the intention of coercing by intimidation the governments of New Zealand and Indonesia.”

Named in the AFP search warrant seen by MWM is research scholar Julian King, 63. He’s told others his home in Coffs Harbour, Queensland, was raided violently earlier this month by police using a stun grenade and smashing a door.

During the search, the police seized phones, computers and documents on contacts with the West Papua rebel group Organisasi Papua Merdeka, OPM (Free Papua Organisation), and to seek weapons and ammunition.

So far it is believed that no arrests have been made or charges laid.

King, a former geologist and now a PhD student at Wollongong University, has been studying Papuan reaction to the Indonesian takeover since 1963. He has written that West Papuans

live under a military dictatorship described by legal scholars and human rights advocates as systemic terror and alleged genocide.”

Also named in the warrant alongside King is Amatus Dounemee Douw, confirmed by MWM contacts to be Australian citizen Akouboo Amatus Douw, who chairs the West Papua Diplomatic and Foreign Affairs Council, an NGO that states it wants to settle disputes peacefully.

Risk to Australia-Indonesia relations

The allegations threaten to fragment relations between Indonesia and Australia; it’s widely believed that human rights activists and church organisations are helping Papuan dissidents despite Canberra’s regular insistence that it officially backs Jakarta.

Earlier this year, Deputy PM Richard Marles publicly stressed: “We, Australia, fully recognise Indonesia’s territorial sovereignty. We do not endorse any independence movement.”

In August this year, Douw grabbed headlines for alleging Indonesian troops shot Kiwi Glen Conning on August 5 in Central Papua. The government version is that the pilot was killed by “an armed criminal group” after landing his helicopter, ferrying local people who fled unharmed.

When seized by armed OPM operatives in February last year, Mehrtens was flying a light plane for an Indonesian transport company.

He was released unharmed this September after being held for 593 days by the West Papua National Liberation Army (Tentara Pembebasan Nasional Papua Barat – TPNPB), the military wing of the OPM.

The shameful Australian silence on human rights atrocities next door

Terrorist group?

OPM is designated as a terrorist organisation in Indonesia but isn’t on the Australian list of proscribed groups. Jakarta bans foreign journalists from Papua, so little impartial information gets out.

After Mehrtens was freed, TPNPB spokesman Sebby Sambom alleged that a local politician had paid a bribe, a charge furiously denied by the NZ Government.

However, West Papua Action Aotearoa (NZ) spokesperson Catherine Delahunty told Radio NZ the bribe was “an internal political situation that has nothing to do with our government’s negotiations.”

Sambom, who has spent time in Indonesian jails for taking part in demos, now operates out of adjacent Papua New Guinea – a separate independent country.

Australia was largely absent from the talks to free Mehrtens that were handled by NZ diplomats and the Indonesian military. The AFP’s current involvement raises the worry that information garnered under the warrants will show the Indonesian government where the Kiwi was hidden so the locations can be attacked from the air.

At one stage during his captivity, Mehrtens appealed to the Indonesian military not to bomb villages.

It’s believed Mehrtens was held in Nduga, a district with the lowest development index in the Republic, a measure of how citizens can access education, health, and income. Yet Papua is the richest province in the archipelago; the Grasberg mine is the world’s biggest deposit of gold and copper.

OPM was founded in December 1963 as a spiritual movement rejecting development while blending traditional and Christian beliefs. It then started working with international human rights agencies for support.

The indigenous Papuans are mainly Christian, while almost 90% of Indonesians follow Islam.

Chief independence lobbyist Benny Wenda lives in exile in Oxford. In 2003 he was given political asylum by the UK government after fleeing from an Indonesian jail.  He has addressed the UN and European and British Parliaments, but Jakarta has so far resisted international pressure to allow any form of self-determination.

Questions for new President Prabowo

Indonesian President Prabowo Subianto is in the UK this week, where Papuans have been trying to stir opposition to the official visit. In a statement, Wenda said:

Prabowo has also restarted the transmigration settlement programme that has made us a minority in our own land.

“For West Papuans, the ghost of (second president) Suharto has returned — (his) New Order regime still exists, it has just changed its clothes.”

Pleas for recognition of Papuan’s concerns get minimal backing in Indonesia; fears of balkanisation and Western nations taking over a splintered country are well entrenched in the 17,000-island archipelago of 1,300 ethnic groups where ‘unity’ is considered the Republic’s foundation stone.

US President beware. Indonesia embraces Russia, BRICS to build trade … and military

This post was originally published on Michael West.

The Albanese Government is already pouring $9.1B of taxpayers’ money into the US and UK submarine industrial base. Yet a new FOI release from Washington reveals a secret deal that means there’s even more money to be dispatched. Rex Patrick reports.

Make Australia Make Again?

The future of Whyalla’s steelworks is of vital national importance and should matter to all of us. It is critical to Australia’s manufacturing, construction and national security and resilience. 

Being frank, the steelworks are in dire straits. They are 60 years old and have been on a rocky road for well over a decade. Its blast furnace has been out of action for over six months now, and whilst there is some optimism that they will get it back up and running it will not change the fact that the steelworks have been in operation for some six decades.

In 2016 when the previous owner, Arrium, went into administration with $4 billion in debts, UK billionaire Sanjeev Gupta’s GFG Alliance bought the steelworks making lots of big promises for a bright future, but it was not to be. At the turn of the decade Greensill Capital, GFG’s financier, collapsed and there’s been trouble ever since.

As it stands, the future of the steelworks, and Whyalla, is in the hands of a court entangled foreign billionaire with a gaping chasm between his promises and delivery. Those promises of a 21st century industrial transformation look very much like ever receding mirages

The Federal Government needs to have the SA Government bring matters to a head by putting GFG’s South Australian operations into administration (by calling for unpaid and overdue mining royalties), taking an equity stake in the steelworks alongside someone like BlueScope Steel, and investing the necessary billions to build a new green steel industry for Australia. 

It would be a part of Make Australia Make Again.

But that’s not happening. Instead, it’s

Make America Great Again!

Prime Minister Albanese’s focus is on investment in US industry, not Australian industry.

In September 2023 the Federal Government announced it was pouring $4.7 billion ($US3B) into the US submarine industrial base to assist the largest economy in the world get their submarine production rate up to 2.3 subs per annum (from the current rate of 1.4 subs).

Some $1.5 billion will be paid to the US this financial year, and $1.8 billion next financial year. The remaining $1.4B will follow thereafter.

The geniuses in the Department of Defence have set up a regime where, if for any reason the US can’t deliver (it is highly unlikely they will ever make the 2.3 subs required) or won’t deliver (more on that possibility below), we get exactly none of the money back.

The Government is shy on spending money on a steel works which they would have complete control over, in terms of success, but are happy to recklessly throw money at US shipyards.

Go figure!

Make Great Britain Great Again Too!

That’s not the end of the story though.

The British are in on this deal of a lifetime too. They’ve managed to pull $4.4B (£2.4 billion) over the next decade from Australian consolidated revenue.

There is no clawback on payment to the United Kingdom either.

Everyone must be feeling pretty chuffed in Groton, Connecticut, and Barrow-in-Furness, England.

But Wait, There’s More!

Whilst the Federal Government has been open about the totals, albeit with a little ‘encouragement’ from Green’s Senator David Shoebridge at Senate Estimates, there’s a dark secret being withheld from the Parliament and the public.

There’s more ‘shared’ cost to come.

FOI returns from the US Department of the Navy reveal that behind the scenes the three AUKUS government participants have been negotiating trilateral cost sharing principles to guide future cost sharing negotiations.

The principles were worked up by the AUKUS Submarine Executive Group and presented to Defence Minister Richard Marles earlier this year. It’s been all strictly hush hush. Noting how naïve Australia’s approach has been to date to date, these cost sharing principles really ought to be subject to scrutiny.

Senator David Shoebridge backed this in telling MWM, “Why on earth do cost-sharing principles need to be secret? Of course they should be made public.”

He went on to comment, “Once again, we get more transparency on AUKUS out of the US than Australia.“

“The one-sided secrecy is because the US has a whole lot less to be embarrassed about than Australia. They are the ones getting all our money after all.”

Transactional Trump

The approved appropriations in the US for enhancing their submarine industrial base through upgrades as well as recruitment and training of thousands of additional workers amount to $US14.7B. Australia adds another $US3B to that. But the total the US administration is seeking for this work is in the order of $US28.4B.

Of course, there is some quid quo pro in all of this with the Australia Government having committed to spending $8 billion upgrading HMAS Stirling near Rockingham to support the operations of UK and US nuclear powered submarines from 2027, and possibly Australian nuclear submarines from 2035.

There is a danger under the incoming Trump administration that the President will seek a greater contribution from Australia – just as he has demanded that members of NATO pull their weight. And it will be a case of having no choice but to pay, no matter the cost sharing principles negotiated, because our Defence Department simply has no Plan B.

They have literally bet our national security future on one, single, vastly expensive project to acquire just eight conventionally armed submarines.  

Senator Shoebridge commented, “The AUKUS submarine deal is a non-refundable $368 billion gamble on the goodwill of some future US President, and the US just elected Donald Trump. You only need to put these two facts side by side to realize what a disaster the whole thing is.”

Ships and Steel

Meanwhile, as Australian money is being tossed around the US and UK like it’s free, Albanese is sitting on his hand on the issue of green steel manufacturing in Whyalla.

As steel workers in Whyalla worry over their future, and for very good reason, shipbuilders in the United States are like pigs in gravy, wallowing in cash and looking forward to a lot more of that coming their way from Australian taxpayers.

Anthony Albanese says he wants to revitalise manufacturing and Make Australia Make Again. But in this topsy-turvey world, he’s instead working to deliver on Donald Trump’s slogan to Make America Great Again.

Studious Ambassador Rudd and his “big careful” AUKUS shipyard cost study

This post was originally published on Michael West.

The PwC multinational tax avoidance scandal has led to a slew of parliamentary inquiries, reports and much handwringing. The latest includes no less than 40 recommendations. But will anything change? Kim Wingerei reports.

The Parliamentary Joint Committee on Corporations and Financial Services has published its report. That committee’s remit is ASIC and the operation of corporate legislation.

Back in June, the Senate’s Standing Committee on Finance and Public Administration’s reported from its “Inquiry into Management and Assurance of Integrity by Consulting Services Management.”

PWC – a slap on the Wrist | The West Report

Both reports go wider than the scandal that precipitated them. Neither do much to address the core issues of how the Government has made itself dependent on consultancies, reduced the public service to contract management functionaries while outsourcing competencies to rent-seekers, and failed to put in place appropriate checks and balances.

According to a 2024 Parliamentary report, “In 2022–23, the Australian Government published 83,625 procurement contracts with a combined value of $74.8 billion. Management Advisory Services, typically provided by consulting firms, had a value of $3.272 billion in 2022–23, which represents 4.37 per cent of the total value of procurement contracts.”

The vast majority of the consulting contracts go to the ‘Big 4’ consultancies, EY, Deloitte, KPMG and PwC, who are all large donors to both Liberals and Labor.

The Morrison Government spent $20.8B on consultants. Labor claims to have reduced that spending by $624m a year since coming to power.

The Corporations and Financial Services Committee commenced its inquiry “ethics and professional accountability” in June 2023, receiving 83 submissions plus follow-up questions and met 12 times between October 2023 and September 2024. The resulting report includes 40 recommendations, the first being that PwC should continue to be banned from tendering for government work until all the other investigations into its practices have been concluded.

So far, so good. Except, of course, that PwC “spun off” its government practices to new company Scyne Advisory, who, according to the AFR ($), quickly clawed back a third of the contract revenue that PwC lost. Former PwC CEO Luke Sayer, one of the senior partners deeply mired in the scandal, is also known to continue to benefit from government contracts at the consultancy he now runs, the Sayer Group, which in June has 28 contracts with the federal government and its agencies, according to the Austender portal.

Partnership or corporation?

Another recommendation is that the number of partners in partnerships be limited to 400 to align with legal partnerships. That would cause some pain for PwC, which has over 900 partners in Australia, especially for the 22 new partners admitted in July this year. EY has 738 partners, KPMG ‘over’ 600, with Deloitte the only one under the proposed new bar with 360. They’ll have five years to comply and be “subject to review”, so we’re guessing that nobody’s partners have been losing sleep at the prospect of a demotion just yet.

The Opposition members of the committee, Alex Hawke and Paul Scarr, dissented strongly from this recommendation, noting that “a cut in the number of partners would cause great disruption to those firms which currently have more than 400 partners.”

The Greens representative, on the other hand, wanted to go further, suggesting a cap of 100 partners, citing Mr Adam Powick, CEO of Deloitte (who) has acknowledged that “once a partnership gets above 100 equity partners, it becomes too complex to manage.”

The partnership model has many benefits. In particular, they are exempt from the governance and accountability requirements of the Corporations Act. Recommendation 5 suggests that this ‘should’ change for partnerships with over 3,000 staff. But only if it’s OK by ASIC, who, as we know, has so many other complicated matters to attend to, including the fending-off of government reports calling for it to be abolished.

ASIC obfuscates, dithers and delays at Senate Estimates. What’s the scam?

There are several other recommendations along the same lines of making the ‘Big 4’ subject to disclosure, transparency and audit requirements similar to those applying to large corporates and other government contractors. Why they are not already has long been a point of conjecture here at MWM.

The most obvious recommendation of all is that “the Australian Government consider requiring audit firms, or the audit section of multidisciplinary firms, to incorporate.” ‘Big 4’ lobbyists are no doubt ready to take that fight to Canberra.

Structural or operational separation

One of the major issues laid bare by the PwC scandal was the muddled lines between the company’s divisions of audit, tax advice and consultancy.

Recommendations 8 and 9 suggest that “multi-disciplinary large accounting firms should not be permitted to supply both audit and non-audit/consultancy services to the same client” and that they “should be required to implement operational separation of their audit practice from their non-audit practice.”

The firms themselves, of course, will insist that this is not necessary because that is already their practice. As is the flying of pigs.

Other recommendations expand on this theme, with suggestions for better audit practices (sic) and more transparency, while the Greens stressed the importance of structural over just operational separation, with Barbara Pocock stating, “structural separation is an alternative, firmer way to ensure the integrity of the audit system and guarantee that audits are not compromised by non-audit services, creating conflicts of interest.”

The problem with PWC and the Big 4 – treason is the business model

Fragmented oversight

The fragmented regime of corporate regulation and oversight in Australia is on display in the report in recommendation 22:

“The committee recommends that the Australian Government consider additional mechanisms to ensure the Financial Reporting Council and any related standards boards, the Companies Auditors Disciplinary Board, the Australian Securities and Investments Commission, the Tax Practitioners Board, and the Australian Taxation Office and other government regulatory bodies are independent and are seen to be independent, including by ensuring that the bodies do not include individuals with a current financial interest in entities under the direct governance of the body.”

That’s a lot of bodies with overlapping interests and people to control not to mention their ability to claim “not in our purview” – and the list doesn’t even include the Professional Standards Council and its cousin, the Accounting Professional and Ethics Standards Board.

The Committee even suggest that there should be another such body, “creating a consultancy code and associated consultancy code compliance body (with sufficient powers to ensure compliance with the code).”

They’ll need more consultants to sort it all out!

Or maybe that’s the reason for recommendation 33, that the “Australian Government and professional bodies develop mechanisms to enhance the transfer of misconduct information between regulators and all relevant professional bodies.”

Whistleblower protections

The PwC scandal took many years to surface and only came to light when journalists got wind of a determination made by the Tax Practitioners Board, censuring PwC tax partner Peter Collins. Collins turned out to be just one of many who knew about PwC providing advice to clients based on confidential material from the ATO.

The committee recognises that there were a large number of people who were either involved or who knew what happened long before it became public, suggesting that a stronger whistleblower regime is paramount.

It recommends greater alignment of whistleblower protections across public and private sectors, applies to audit, accounting and consulting firms, and offers greater protection and support for whistleblowers.

We second that and wait with bated breath…

Lendlease whistleblower and lawyer Tony Watson – the law is failing to protect whistleblowers

 

This post was originally published on Michael West.

The world knows, the Timorese know, and all Australians know we spied on the Timorese to steal their oil and gas, yet DFAT is denying official history because that history alleges Australia spied on its neighbour. Rex Patrick on the endless cover-ups.

In 2015, the Australian Government commissioned the Australian War Memorial (AWM) to produce the official history of Australian operations in Iraq and Afghanistan and Australian Peacekeeping Operations in East Timor. In 2016, UNSW history professor Craig Stockings was engaged as AWM’s official historian, and work commenced, first up, on two volumes covering Australia’s East Timor Operations.

Despite the title, the official histories are not the Government’s view of events; the Official Historian is independent, free to research, write and give their historical account as they see fit. The official histories are not government publications; they are published by UNSW Press.

The “official” part of the official history refers to access to government records, many of them still secret.

Access to classified information means that the official history has to go through a formalised clearance process. It goes to Defence, who forward relevant parts to Department of Foreign Affairs and Trade (DFAT) and the intelligence organisations, and then finally the Department of Prime Minister and Cabinet, the Inspector General of Intelligence and Security and the Australian Federal Police.

The clearance is supposed to take six months and makes it clear that any editorial comment provided by government agencies involved is ‘advice’, not required changes.

East Timor – Volume One

Volume One of the Timor History took two years to write but became a hugely controversial affair when it then took three years to ‘clear’.

DFAT didn’t like the history as written. Letters revealed under a previous FOI show that DFAT was uncomfortable with the first nine chapters of the book – they thought that these focussed “inordinately” on the events leading up to the 1999 Timorese independence vote.

DFAT’s agitation arose from the fact that the Department was the lead agency in determining Australia’s controversial East Timor policy over nearly half a century, with successive generations of senior diplomats deeply involved in orchestrating Australia’s acquiescence to Indonesia’s invasion of Timor in 1975.

It turned a blind eye to a quarter of a century of Indonesian military atrocities and human rights abuses, refusing to support East Timorese self-determination, delaying and foot-dragging on Australia’s intervention following Timor’s independence vote in 1999.

It then engaged in bad faith negotiations through the 2000s as DFAT worked with Woodside and other energy giants to rob Timor-Leste of their share of the energy resources under the Timor Sea.

This was a shameful record that DFAT had no desire to have documented in detail, indeed a story they had no wish to publish at all.

In order to broker a compromise, former Defence Minister Brendan Nelson, then head of the AWM, proposed the first nine chapters be truncated to just two chapters. DFAT liked the idea, but Nelson quickly retreated from his unsustainable position.

Then head of DFAT and now Governor of South Australia, Francis Adamson, wrote to Professor Stockings emphasising that an “honest history” of Australia’s peacekeeping role in Timor would touch “raw nerves”.

From DFAT’s perspective, it was best if history was twisted to suit their narrative and should be censored when the topic was just too hot for them.

The AWM stood its ground.

UNSW Professor of International and Political Studies Clinton Fernandes paid tribute to Professor Stockings. “It would have been easy to have given in and just written a whole book full of stories about larrikin diggers and ruminate on our national character – bronzed ANZACs, all of that stuff. He has taken his task as an official historian seriously, and a lesser person would easily have not only gone along with it but then justified the action.”

Volume One was published in December 2022. The publication was also mired in controversy after the launch of the book was abruptly cancelled after invitations had been issued. Instead, a more discreet “in conversation” event was held, featuring AWM board chairman Kim Beazley interviewing Stockings.

DFAT were no doubt pleased that publicity was minimised.

East Timor – Volume Two

A similar controversy has now arisen over Volume Two.

Newly obtained FOI documents, reluctantly released after the AWM capitulated when I appealed another access refusal decision to the Administrative Review Tribunal, show that DFAT doesn’t want Volume Two making any mention of the spying that ASIS did on the Timor Sea boundary negotiating team.

The official history team are drawing the spying information from public sources, and DFAT has wanted to remove even that in the clearance process!

Neither Confirm Nor Deny

The spying is an established fact.

• Timor was confident enough to institute proceedings in the Permanent Court of Arbitration (PCA) in relation to the 2006 treaty, which was the subject of the spying. 
• The Australian Security Intelligence Organisation, on national security grounds, raided the offices of the lawyers who represented Timor-Leste in the Arbitration and the home of a material witness in the proceedings for security-related reasons, giving credibility to the fact that the spying took place.
• The Australian Government welcomed the PCA proceedings being discontinued.
• The Australian Government’s negotiation of a new maritime boundary treaty with Timor-Leste subsequent to the disclosure of the spying operation was more favourable to Timor-Leste than the earlier treaty, showing that the disclosure of the spying affected Australia’s approach to the negotiation of the second treaty.
• Witness K was sentenced for his role in disclosing the spying operation.
• The Australian Government also brought charges against lawyer Bernard Collaery for disclosing the spying operation.

Yet DFAT, in an approach everyone can see through, neither confirms nor denies the spying took place.

But in relation to Volume Two of the history, they don’t even want the fact of an allegation of spying to be mentioned.

No resolution

As the official history team work to resolve the issue, the FOI release shows that a DFAT censorship wand is still being waved around. On the 15th of April this year Professor Stockings met with DFAT where officials added two more request to remove information about the Timor Sea boundary negotiations. Stockings stated:

“The argument is that [the official history team] are not qualified to make judgements in this regard as insufficient evidence exists. We respectfully disagree. The quality of the history is up to us. It is not a clearance issue.”

Stockings then goes on to state of the unresolved issues:

“We cannot make these changes on the basis that to do so would fundamentally risk the credibility of the volume. No serial was described as a problem of [security] classification (indeed most only have unclassified sources) but rather that their inclusion may cause some degree of offence to former and/or current East Timor politicians/leaders. Given nothing that is said is not already in the public domain, and given the necessity of this context for the volume to make sense to a reader, we do not agree.”

The released FOI documents show that the Volume Two clearance process is now at an impasse.

In May this year the impasse was escalated to the Department of the Prime Minister and Cabinet in a supposed effort to resolve differences.  This may not help much. Historically, PM&C and DFAT have been joined at the hip regarding Timor policy. Most of PM&C’s international experts have come from DFAT and have been just as complicit in Australia’s shameful behaviour towards our neighbour as their diplomatic colleagues. Unsurprisingly, the Prime Minister’s Department failed to respond to questions from MWM.

Time to come clean

Most Australians are highly embarrassed about our general conduct towards Timor-Leste. The spying on Timor-Leste for the purpose of stealing their oil and gas is the centre-piece of that embarrassment.

The official historian is not trying to put on the record the actuality of the spying, just that allegations were made. A failure to include this in the history of the two countries would stand out like a sore thumb.

The history must tell the truth. Indeed, the Australian Government should tell the truth and apologise for what it did.

The continued desire of DFAT to blot out the Howard government’s conspiracy to defraud the newest and one of the poorest countries in the world is pointless and just picks at the scab of shame and embarrassment. DFAT need to own their history, apologise to all and reflect on their immoral and unethical legacy, so that we can all move on.

This post was originally published on Michael West.

The NSW Supreme Court has issued orders prohibiting a major climate protest that would blockade ships entering the world’s largest coal port in Newcastle for 30 hours. Despite the court ruling, Wendy Bacon reports that the protest will still go ahead.

In a decision delivered on Thursday, Justice Fagan ruled in favour of NSW police who applied to have the Rising Tide ‘Protestival’ planned from November 22 to 24 declared an ‘unauthorised assembly’.

Rising Tide has vowed to continue its protest. The grassroots movement is calling for an end to new coal and gas approvals and imposing a 78% tax on coal and gas export profits to fund and support Australian workers during the energy transition.

The group submitted what is known as a “Form 1” to the police for approval for a 30-hour blockade of the port and a four-day camp on the foreshore. If approved, the protest could go ahead without police being able to use powers of arrest for offences such as ‘failure to move on’ during the protest.

Rising Tide organisers expect thousands to attend of whom hundreds would enter the water in kayaks and other vessels to block the harbour. Last year, a similar 24-hour blockade protest was conducted safely and in cooperation with police, after which 109 people refused to leave the water in an act of peaceful civil disobedience. They were then arrested without incident. Most were later given good behaviour bonds with no conviction recorded.

The price of peaceful protest: 109 arrests, but the Newcastle Port blockade will be on again

Following the judgement, Rising Tide organiser Zack Schofield said that although the group was disappointed, “the protestival will go ahead within our rights to peaceful assembly on land and water, which is legal in NSW with or without a Form 1.”

“The main public safety issue here is the climate pollution caused by the continued expansion of the coal and gas industries. That’s why we are protesting in our own backyard: the Newcastle coal port, scene of Australia’s single biggest contribution to climate change.”

In his judgement, Justice Desmond Fagan affirmed that protesting without a permit is lawful.

In refusing the application, he described the planned action as “excessive”. “A 30-hour interruption to the operations of a busy port is an imposition on the lawful activities of others that goes far beyond what the people affected should be expected to tolerate in order to facilitate public expression of protest and opinion on the important issues with which the organisers are concerned,” he said.

During the case, Rising Tide’s barrister Neal Funnell argued that in weighing the impacts, the court should take into account “a vast body of evidence as to the cost of the economic impact of global warming and particularly the role the fossil fuel industry plays in that.“

But while agreeing that coal is “extremely detrimental to the atmosphere and biosphere and our future, Justice Fagan indicated that his decision would only take into account the immediate impacts of the protest, not “the economic effect of the activity of burning coal in power plants in whatever countries this coal is freighted to from the port of Newcastle.”

NSW Police argued that the risks to safety outweighed the right to protest. Rising Tide barrister Neal Funnell told the court that the group did not deny that there were inherent risks in protests on water but pointed to evidence that showed police logs revealed no safety concerns or incidents during the 2023 protest.

Although he accepted the police argument about safety risks, Justice Fagan acknowledged that the “organisers of Rising Tide have taken a responsible approach to on-water safety by preparing very thorough plans and protocols, by engaging members of supportive organisations to attend with outboard motor driven rescue craft and by enlisting the assistance of trained lifeguards.

The Court’s reasons are not to be understood as a direction to terminate the protest.

Student protests echo Vietnam as pro-war lobby cracks down on peaceful protests

NSW government opposition

Overshadowing the case were statements by NSW Premier Chris Minns, who recently threatened to make costs of policing a reason why permits to protest could be refused.

Last week, Minns said the protest was opposed because it was dangerous and would impact the economy, suggesting further government action could follow to protect coal infrastructure. “I think the government’s going to have to make some decisions in the next few weeks about protecting that coal line and ensuring the economy doesn’t close down as a result of this protest activity,” he said.

Greens MP and spokesperson for Climate Change and Justice Sue Higginson, who attended last year’s Rising Tide protest, said, “ It’s the second time in the past few weeks that Police have sought to use the Court to prohibit a public protest event with the full support of the Premier of this State…”

Higginson hit back at Premier Chris Minns. “Under the laws of NSW, it’s not the job of the Premier or the Police to say where, when and how people can protest. It is the job of the Police and the Premier to serve the people and work with organisers to facilitate a safe and effective event. Today, the Premier and the Police have thrown this obligation back in our faces. What we have seen are the tactics of authoritarian politics attempting to silence the people,”

“It is telling that the NSW Government would rather seek to silence the community and protect their profits from exporting the climate crisis straight through the Port of Newcastle rather than support our grassroots communities, embrace the right to protest, take firm action to end coal exports and transition our economy.”

Limits of police authorised protests

Hundreds of protests take place in NSW each year using Form 1s. Many other assemblies happen without a Form 1 application. But the process places the power over protests in the hands of police and the courts. In a situation in which NSW has no charter of human rights that protects the right to protest, Justice Fagan’s decision exposes the limits of the Form 1 approach to protests.

NSW Council for Civil Liberties is one of more than twenty organisations that supported the Rising Tide case.

In response to the prohibition order, its Vice-President Lidia Shelly said, “Rising Tide submitted a Form 1 application so that NSW Police could work with the organisers to ensure the safety of the public. The organisers did everything right in accordance with the law. It’s responsible and peaceful protesting. Instead, the police dragged the organisers to Court and furthered the public’s perception that they’re acting under political pressure to protect the interests of the fossil fuel industry.”

Ms Shelly said, “In denying the Form 1, NSW Police have created a perfect environment for mass arrests of peaceful protestors to occur ….The right to peaceful assembly is a core human right protected under international law. NSW desperately needs a state-based charter of human rights that protects the right to protest.”

“The current Form 1 regime in New South Wales is designed to repress the public from exercising their democratic rights to protest. We reiterate our call to the NSW Government to repeal the draconian anti-protest laws, abolish the Form 1 regime, protect independent legal observers, and introduce a Human Rights Act that enshrines the right to protest.”

 

This post was originally published on Michael West.

The Foreign Investment Review Board (FIRB) has operated under a veil of secrecy since it was established in 1975, with its deliberations kept from public view, distorting markets and benefitting multinationals. That secret vault has just been cracked open. Transparency Warrior Rex Patrick reports.

The Foreign Investment Review Board (FIRB) was established in 1975 to advise the Treasurer on foreign investment matters. It is a non-statutory body that examines certain proposed investments subject to the Foreign Acquisition and Takeover Act 1975 (FATA) to determine whether they would be in the national interest.

The FIRB makes recommendations to the Treasurer, although some less important decisions are delegated to senior FIRB officers. Some applications are also decided by other Treasury portfolio ministers.

The Act permits the Treasurer to impose conditions on an investment, but the conditions can only be imposed if required to ensure the investment is not contrary to Australia’s national interest.

Of the 1,310 commercial applications (worth $171.5B) that were approved in 2022/23, 760 of those ($131.6B) were approved with conditions attached.

Josh and Scott deliver Goldman Sachs the giant vampire squid a giant quid

No sunlight, please

In a report of the 2019 to 2021 Senate inquiry into foreign investment, the Economics Committee observed in its report:

In comparison to foreign investment regimes elsewhere, Australia’s foreign investment regime is secretive.

The FATA Act defines a class of “protected information” as information obtained under, in accordance with or for the purposes of this Act. That is, information that is supplied to it externally from government (e.g. information from the prospective foreign buyer) is to be secret.

But FIRB has taken that secrecy inch and tried to turn it into a secrecy mile.

Again, the Senate observed, “This

definition is taken by Treasury officials to cover all information on foreign investment proposals, conditions and compliance, beyond the anonymised statistical reporting of the Foreign Investment Review Board (FIRB).”

And if an Australian citizen wants to peer into the process, the FIRB threatens to use taxpayer’s money against them to defend its secrecy in the courts. Noting the test for foreign acquisition is national interest, FIRB’s insistence on functioning in total secrecy is quite incredible.

A Royal Commission into Scott Morrison? He sold off the farm, in secret

Treasury’s loss

In 2020, I thought I’d take on this most unreasonable secrecy.

Imagine the idea that officials get to decide on whether something is in the national interest, but for that decision-making process to be above and beyond any scrutiny. How odd!

In May 2020, I requested access to the documents comprising the full decision and conditions imposed by the then Treasurer in relation to the approval for China Mengniu Dairy Company Limited to acquire baby food company Bellamy’s Australia Ltd.

Treasury refused outright, but after a long delay has had their decision overturned. At the objection of Treasury and the new owners of Bellamy’s, the FOI Commissioner, Toni Pirani, has granted full access to the Treasurer’s decision (and conditions) letter.

This precedent opens up the public’s access to foreign investment decisions of all Treasurers and their delegates. It’s a significant transparency victory.

FOI Commissioner succumbs

In addition to the Treasurer’s decision letter, another document fell within the scope of my request: the FIRB’s decision minutes provided to the Treasurer.

This is an important document because it would contain the national interest analysis associated with the acquisition. This is the nuts-and-bolts document that most deserves scrutiny. The FOI Commissioner only granted partial access to this, however.

The FOI Commissioner found, as a matter of fact, that the FIRB decision minute was not ‘obtained’ by the FIRB, rather it was generated by them and as such was not “protected information’.

She found that it comprised of analysis, advice and recommendations provided by the Department to the then Treasurer to assist him in his consideration of the China Mengniu Dairy Company’s application, and went on to determine that “some of the analysis and advice includes information obtained by the Department from various sources (including information provided by [China Mengniu Dairy Company] as part of their application) that are not publicly available”.

To the extent that that information came from third parties, it should properly be withheld from the public.

Legal error

The FOI Commissioner fell into legal error. She somehow found that releasing information (analysis, advice and recommendations) generated by FIRB would cause harm because the Parliament had somehow placed a ‘secrecy aroma’ around the process when it made information obtained from a company secret.

In doing so, she betrayed her role as the FOI guardian. The FATA Act goes no further than classifying information received from outside government as secret. That does not mean that the Parliament meant anything more than that, and she was wrong to conclude that.

Treasury doesn’t want their operations to be ‘infected’ with transparency and scrutiny, and the FOI Commissioner seems content with that proposition. Her own transparency failure will have to be dealt with separately.

Transparency fight to continue

Thus far the Albanese Government has spent a million dollars losing to me in transparency fights.

Noting the obstructive nature of the FIRB in protecting the secrecy of its operations – secrecy for the sake of it – I’m expecting an appeal will be lodged.

FIRB arrogantly have no desire to allow the public to see how well or poorly they are discharging their public duties.

And besides, it’ll be your money paying for an appeal to stop government information from being made available to you. So, as far as they’re concerned, who cares?

There’s a long way to go yet in the fight for greater transparency in our all too often dysfunctional Australian government. Only with much more transparency will we get better public policy, more efficient administration and better outcomes for all.

So, it’s a fight very much worth having, whatever the obstruction from the FIRB and so many other self-interested bureaucrats and their political masters.

Housing Crisis: Peter Dutton on the right track with foreign buyers ban

 

This post was originally published on Michael West.

NACC Commissioner Paul Brereton’s “in office misconduct” has met and exceeded the NACC’s own “exceptional circumstances” criteria to justify a public hearing into Brereton’s “misconduct”. Shane Dowling reports.

Failure to have a public hearing will leave a stench of corruption hanging over the NACC until Commissioner Paul Brereton resigns and maybe long after and that I argue meets the NACC’s own “exceptional circumstances” criteria to justify a public hearing.

On Wednesday (30/10/24), the Inspector of the NACC, Gail Furness, SC, published a report into “an investigation into agency maladministration or officer misconduct in relation to the decision of the National Anti-Corruption Commission (NACC) not to investigate the referrals of six persons from the Royal Commission into the Robodebt Scheme.”

As it stands, the Inspector of the NACC made a finding that NACC Commissioner Paul Brereton engaged “in officer misconduct” by failing to properly recuse himself from the 6 Robodebt referrals matter.

But the Inspector of the NACC, Gail Furness, SC, also found that NACC Commissioner Paul Brereton’s conduct was

conduct that is not unlawful but arose from a mistake of law or fact.

The story so far

The National Anti-Corruption Commission (NACC) started operations on the 1st of July 2023.

On or about the 7th of July 2023, the NACC received a sealed section of the Robodebt Royal Commission Report, which had six names of people recommended for further investigation by the NACC.

On the 6th of June 2024, the National Anti-Corruption Commission (NACC) issued a press release saying they would not investigate nor take any action, including against NACC Commissioner Paul Brereton’s good friend Kathryn Campbell, after sitting on the referral for 11 months.

On the 13th of June 2024, the Inspector of the National Anti-Corruption Commission, Gail Furness SC, announced that she would investigate the NACC for alleged “corrupt conduct” regarding the Robodebt cover-up” because the NACC has refused the investigate the six people that the Robodebt Royal Commission referred to them for investigation.

It’s also worth noting that on the 20th of June 2024, Kangaroo Court of Australia published an article titled “Scott Morrison outed as one of the six referred to the NACC by the Robodebt RC – The prima facie case”.

On the 8th of August 2024, Twitter journalist Jommy Tee posted documents and emails he received via a Freedom of Information (FOI) request he made to the NACC about Commissioner Paul Brereton recusing himself from the Robodebt referrals.

THREAD: #Robodebt & #NACC

Four days (3 July 2023) before #Robodebt Royal Commissioner, Catherine Holmes, handed down her final report (7 July 2023), the #NACC knew it had a potential conflict of interest issue to deal with. pic.twitter.com/h9X385yxJy

— Jommy Tee 🌐 (@jommy_tee) August 7, 2024

The Guardian sent questions to the NACC and published an article on the 15th of August 2024 with the NACC’s response.

NACC response

The key new information in the NACC response was that Brereton “retained visibility of significant steps taken” in relation to the Robodebt Royal Commission referrals and

contributed his own views on some issues when requested or when he considered appropriate.

Every lawyer in Australia would not be able to stop laughing if they read a judge recused himself but then “retained visibility of significant steps taken” in relation to the matter and “contributed his own views on some issues when requested or when he considered appropriate”.

It was all over, bar the shouting, when The Guardian reported the above admissions by the NACC. Any police officer will tell you the best evidence is a confession, and the NACC admission is in effect a confession that Paul Brereton lied about recusing himself from the matter.

Why did NACC decline to pursue the Robodebt scandal? Conflict of interests revealed.

Brereton and Campbell’s relationship

The personal relationship that NACC Commissioner Paul Brereton has with Robodebt’s Kathryn Campbell and her husband, Paul Brennan, was reported in July 2023. They know each other from the Army Reserve.

How well they know each other does not seem to have been explored by the Inspector of the NACC, which is disturbing.

The cornerstone of all recusal judgments is that all the details of any personal conflict are detailed in the judgment. The fact that they are not adds weight to the need for a public hearing.

I should note it is not up to Kathryn Campbell, or her husband, to make Paul Brereton recuse himself and so there is no allegation she did anything wrong regarding Brereton’s fake recusal.

Gail Furness’ report

Some of the key details in the Executive Summary of the report are:

The main issue which emerged from the material gathered during the investigation, was the actions taken by the NACC Commissioner following his declaration of a conflict of interest in relation to one of the referred persons.

The NACC Commissioner made a number of declarations describing the interest in relation to that person as a person “he knows well”, “who is well known to me” and “with whom I have had a close association”.

The NACC Commissioner dealt with his declared conflict by delegating the decision as to whether to investigate the referrals, to a Deputy Commissioner.

I found that, in light of the conflict of interest, the NACC Commissioner should have not only designated a delegate but removed himself from related decision-making processes and limited his exposure to the relevant factual information. This was not done.

I found that the NACC Commissioner’s involvement in the decision-making was comprehensive, before, during and after the 19 October 2023 meeting at which the substantive decision was made not to investigate the referrals.

The NACC Commissioner contributed to the discussion at that meeting, settled the minutes of that meeting and was involved in formulating the reasons for decision and also the terms of the media statement.

I concluded that a third-party, fair-minded observer might reasonably apprehend that the NACC Commissioner involvement might have impinged on the impartiality of the decision-making of the delegated Deputy Commissioner. My conclusion is based on an apprehension of partiality rather than actual partiality. I make no finding against the delegated Deputy Commissioner.

I found that natural justice or procedural fairness required the NACC Commissioner not to participate in the decision-making with respect to the referred person. By participating in the decision-making in the way he did, the NACC Commissioner made a mistake of law or fact.

The mistake was as to the requirements of procedural fairness, which amounts to an error of judgement rather than a matter of mere procedure.

I concluded that the NACC Commissioner engaged in officer misconduct as defined in section 184(3) of the National Anti-Corruption Commission Act 2022 (Cth) (NACC Act), being conduct that is not unlawful but arose from a mistake of law or fact.

These findings about the declared conflict of interest are based on advice provided by the Hon Alan Robertson SC, former Federal Court judge, whom I engaged to assist me. His advice is contained in the Robertson Report which is attached to this Report.

Commissioner Paul Brereton only told Gail Furness that his personal interest was a person “he knows well”, “who is well known to me,” and “with whom I have had a close association”.

However, the NACC issued a statement this week, saying, “The Commissioner declared, immediately and repeatedly, that he had a perceived (not actual) conflict of interest, arising from a prior professional, not personal, relationship with one of the referred persons. The Commissioner and that individual have never socialised other than at official functions, nor visited each other’s homes.”

Paul Brereton and Gail Furness would both know that Paul Brereton should have supplied Gail Furness with a detailed list of all the times (when, where and for how long, etc) he met with Kathryn Campbell and her husband. That was clearly not done. What is Brereton hiding?

According to the SMH on 30 October ($), former NSW Supreme Court judge Anthony Whealy, who chairs the not-for-profit Centre for Public Integrity, said the inspector’s report showed misconduct by Brereton.

“I think we’ve got to draw a distinction between unlawful conduct by a commissioner and this type of misconduct, which is reprehensible but not necessarily [deserving] of termination,” he said.

I think it’s a joke for anyone in the legal fraternity or media to defend Paul Brereton as Anthony Whealy has done, but the SMH did go on to say:

Melbourne Law School associate professor William Partlett, who is a fellow at the Centre for Public Integrity, was more critical of Brereton for not removing himself entirely from the decision over the Robodebt referrals. “The commissioner of an anti-corruption commission should be completely above reproach, and the fact that the inspector has made that finding, I think, is not a good position for him to be in,” Partlett said.

I think he should resign for that reason.

Conclusion

The problem with NACC Inspector Gail Furness, SC, finding it was “a mistake of law or fact” is that not even a first-year law student would make that mistake, and if they did in an examination, they would fail.

Yet here we have NACC Inspector Gail Furness, SC, saying it was a “mistake”. Looks like the old Attorney-Attorney respect law kicking in where they all look after each other.

What Gail Furness should have said is:

NACC Commissioner Paul Brereton’s CV on the NACC website says: The Hon Paul Brereton AM RFD SC has been a solicitor, barrister, senior counsel, judge and judge of appeal of the Supreme Court of New South Wales, Deputy Chair of the NSW Law Reform Commission and Deputy President of the Defence Force Discipline Appeal Tribunal. He has extensive experience leading complex and sensitive investigations, including as Assistant Inspector-General of the Australian Defence Force when he delivered the Afghanistan Inquiry Report.

He has also held several senior leadership positions in the Australian Defence Force Reserves.

Based on that CV, it is not plausible that Commissioner Paul Brereton’s actions were a “mistake ” that even a first-year law student would not make and therefor I find Paul Brereton acted deliberately when he failed to recuse himself from the Robodebt 6 matter. 

Paul Brereton should be referred to the Commonwealth Director of Public Prosecutions for criminal charges to be commenced.

But as we know, NACC Inspector Gail Furness, SC, did not say that, which is a further reason why we need a public hearing.

Or does it just come to an end with Gail Furness’ findings it was a mistake?

Anything less than a public hearing into Paul Brereton’s “misconduct” is a cover-up.

The NACC and Commissioner Paul Brereton are not just under fire for the above scandal. They have failed right across the park, and once the dust settles, I think the government will realise Commissioner Paul Brereton is too big a liability of the government’s own making, and he will be tapped on the shoulder to resign.

Vindication for Robodebt victims elusive as NACC investigates itself

This post was originally published on Michael West.

This week, Health Minister Mark Butler cut through the lobbying and made a decision that (could) justify the entire spending on the My Health Record System. Dr James Freeman explains how and why.

In a recent speech at Victorian Healthcare Week, Health Minister Mark Butler highlighted some of the ancient practices and technologies still in use in our healthcare system, including fax machines and the dissemination of data using PDF files. “While the broader economy went through a digital revolution that reshaped industries, My Health Record just sat there, gathering dust.”

One consequence of that has been that pathology companies have not been uploading tests to MyHealth, leading to an enormous duplication of tests requested by doctors to the benefit of pathology companies. But thanks to Mark Butler and the Dept of Health, now they will have to, and they are.

Over the past four decades, our government has consistently funded over 90% of all pathology spending. Over the same period, GPs like me and other doctors have ordered not 1x, not 2x, not 3x, but rather 5x more pathology services, excluding the COVID blip when we got to 7x.

Why? Our ageing population is one reason. Why? Because we doctors are all terrified of missing something rare. Why? Because we, the people, and the no-win, no, no-fee lawyers insist that we do.

And we, the people, spent $3.72B on pathology in 2023/24. Although given a total health budget of $140+ billion, this must surely be down to the paperclip end of the spectrum?

Perhaps, but given that all GP services run to a little under $10B, all medications are a little over $10B, and all radiology is about $5B, pathology remains a big ticket item in the primary care arena.

So, let’s take a very quick look at the backstory before we get to how the pathology companies hoodwinked the government.

NEHTA

The National E-Health Transition Agency (NEHTA) was established by the Australian government in 2005 as part of an effort to create a cohesive national approach to health information technology and to streamline the healthcare system through electronic health services.
The key milestones were:

1. Formation and Early Development (2005-2011):
   1. NEHTA focused on building foundational digital health structures, such as standardized health information exchange protocols and unique healthcare identifiers (for patients, providers, and organizations).
2. Introduction of My Health Record (2012):
   1. In 2012, NEHTA helped launch the Personally Controlled Electronic Health Record (PCEHR), later renamed My Health Record (MyHR).
   2. This national digital health record system aimed to improve care coordination and reduce unnecessary duplication in the healthcare system.
   3. The initial uptake was slow due, in part, to privacy concerns, and adoption remained low.
   4. It was, in short, a gigantic white elephant.
3. Expansion and Transition to the Australian Digital Health Agency (2016-):
   1. In 2016, NEHTA it was replaced by the Australian Digital Health Agency (ADHA) who assumed responsibility for expanding the My Health Record initiative, making it opt-out in 2018.
   2. This increased the number of active digital health records from 10% to 90% of the population.

Back in the 2010s, I was busy establishing GP2U Telehealth, and part of that process included taking a million-dollar investment from Sonic Pathology. This made me privy to some of their internal banter, such as,  “When NEHTA asked us for atomic records, we said no, but we can do PDFs. We expected pushback, but it never came.”

It’s fair to say I was probably not the only person who reflected that NEHTA could not fight its way out of a wet paper bag.

So, what are “atomic records”? Why are they good, and why are PDFs bad?

Health Language

For the past 3 decades, pathology results have been presented to practice management software as atomic records in a format called Health Language 7 (HL7). Here is an example of HL7 dating back to 1987.

Fundamentally, one database spits out some HL7, which another database can then absorb. As you can see above, there is patient identification information, and then each result is a line item.

This is atomic data, and HL7 is designed to facilitate data transfer from one database to another. It predated NEHTA by two decades and was in routine daily use by every pathology company in Australia in 201x.

So, how do things work right now? Pathology providers dump data into buckets that are accessible by the requesting doctor.

Every 15 minutes, the practice management systems in Australia query the relevant pathology providers for data that relates to them and drain the data buckets.

That data then appears in the PMS for the doctor to mark off as received and take appropriate action. As new results are generated, the buckets are refilled, drained, etc.

Implementing this for MyHR use requires very little work. Pathology providers use their existing systems to dump ALL their result data in a bucket marked MyHR. Every 15 minutes or so, or during off-peak hours, the MyHR drains the bucket and puts it into the record.

There is work required, and that work is mostly at the MyHR end, where some knowledgeable people who understand the purpose of this data and how doctors need to see/use it should be engaged to help.

Very little work is required at the pathology end. I would hazard an educated guess it costs the pathology companies far more to implement the current broken PDF system rather than expand on the existing HL7 atomic record, data bucket, and data download system.

Why does it matter?

For pathology companies, the issue is simple. As things stand, it is cheaper for me (as a doctor) to reorder a test than to make 3+ phone calls trying to retrieve data from one of the 3+ local pathology service providers.

The underlying statistic is that 20% of all pathology tests done were already done in the prior 60 days by a different doctor. While many of these tests may well have been indicated due to a change in the patient’s condition, there is little doubt that it is faster for a GP/Specialist to order a test again than to see if there is a recent result available.

~20% of $3.72B is a ~$750m a year saving,

achieved by avoiding pointless duplication of pathology testing.

The big picture questions about privacy vs utility and do we trust the government with our data remain ever relevant. Still, they should be considered against the reality that Sonic Healthcare, Healius, and Australian Clinical Labs (ACL) already hold all this data and having it sent to me is as simple as a phone call.

Would patient care be better if doctors like me had oversight of all a patient’s pathology? I suggest the answer is yes and applaud the Minister for his courage in addressing this issue.

According to Butler, “A bit over a year after the announcement of $1.1 billion in funding, this quiet revolution in digital health is delivering more progress in a single year than in the previous ten years, combined.”

Like the Sony Walkman or Apple Macintosh, the fax machine will finally become little more than a museum relic.

The Gilead and the taxpayer Odyssey

This post was originally published on Michael West.

The Morrison Government fought long and hard to suppress early Robodebt policy documents, spending $250,000 in the process. But the Labor Government has spent another $650,000 in the same fight, Rex Patrick reveals.

Justin Warren, a well-educated technology analyst with a strong sense of ethics, was ahead of the game. It was back in December 2016 after journalist Asher Wolf brought RoboDebt to his attention.

She showed him an answer to a question on notice from then Labor Senator Cameron. It advised of comparisons of Tax Office data with Services Australia data that identified a debt to the government 85% of the time, with an average debt of $1,440.

Mr Warren smelt a technical rat, and wanted to know more. He told MWM that he wasn’t just motivated by a likely abuse of poor people but also by the idea that if the approach was accepted, it would then be rolled out more broadly, including on small businesses.

Mr Warren is one of these people who is not inclined to let lying dogs (inside government) sleep.

RoboDebt FOI Request

In January 2017, Warren submitted an FOI to Services Australia to get access to documents that would help him understand the program. Information is power in any fight with government.

But there was too much at stake for the Morrison government to let transparency get in the way of the RoboDebt program. It took five months for Services Australia to provide Mr Warren with a decision: access was refused in full to all 13 documents to which he requested access.

A seasoned FOI’er, in mid-May 2017, Mr Warren appealed the decision to the Information Commissioner. Services Australia probably did not mind too much; IC reviews can bury documents for years.

Meanwhile, collection under the RoboDebt continued. Commercial debt collectors were engaged. Financial and social distress mounted. Bureaucrats ignored debt appeal decisions of the Administrative Appeals Tribunal (AAT). Suicides started and continued.

Vindication for Robodebt victims elusive as NACC investigates itself

AAT Appeal

It took two and a half years, until November 2019, before the Information Commissioner made a decision. Ten of the 13 documents Mr Warren requested were ordered to be released.

But the Morrison Government wasn’t having any of that. They appealed the Information Commissioner’s decision to the AAT, burying the documents (as it turned out) until well after the cancellation of the RoboDebt program, a change of Government and even a Royal Commission.

Indeed, even though Mr Warren has since won in the Full Federal Court he still doesn’t have the documents.

A question on notice from Senator Jacqui Lambie has now revealed that the price paid by the Morrison Government for its lawyers in the AAT was $256,315. They no doubt thought the delay was worth the money (just taxpayers’ dollars, in any case), and they even won that round.

Mr Warren described his battle with the AAT on his blog. He explained how the AAT (Administrative Review Tribunal – ART – as of today) is supposed to be a relatively informal place to go to sort out a disagreement with the government. He then adds:

“In practice, if the government decides it wants to fight you, you will be massively outgunned and at a huge disadvantage. Not just on the legal reasoning but on all the legal process and admin stuff that surrounds the actual legal argument bits. There’s a whole bunch of insider knowledge here that makes a big differenCE to your odds of success, and that’s part of what you buy when you pay a lawyer. Pro tip.

“Yes, it’s massively unfair. Like everything else in society. Cui bono?”

Halfway through his AAT proceedings, Mr Warren found support from The Grata Fund who organised assistance from good Samaritan barristers Tom Brennan SC and Glyn Ayres, supported by Maurice Blackburn’s social justice team.

But even with a silk and barrister supporting Mr Warren, Service Australia didn’t behave.

After the AAT hearings had concluded and the Tribunal was considering its decision, Services Australia sought to reopen the proceedings using confidential evidence written by a senior official, Ms McGregor of Prime Minister and Cabinet, that contradicted her own open evidence. This was outrageous;

The Full Federal Court later found Services Australia caused a denial of procedural fairness to Mr Warren.

On 2 December 2022, the AAT overturned the IC decision. Only one of the 13 documents was to be released. Services Australia and Mr Warren’s legal team are now negotiating what should be released given the Federal Court’s decision.

Court secrecy pitch

It’s worth pointing out that whenever the Commonwealth is in the Federal Court, it is open to negotiating an outcome that narrows or ends the proceedings. In early 2020, Mr Warren appealed to the Full Court.

Despite the Federal Court determining in 2021 that RoboDebt was illegal, and despite the fact that when Mr Warren made his application to the Full Federal Court, the RoboDebt Royal Commission was in full swing (and had concluded months before the Full Court Hearings), the Albanese Government continued the fight against Mr Warren.

Why? Well, the proceeding involved something more important to the parties of Government. Both the Coalition and then Labor were absolutely determined to defend, much more than having poor people being subjected to bureaucratic abuse to the point of taking their own lives, that the really important thing was the ‘right’ of governments to operate in secrecy.

Mr Warren, who told MWM he absolutely respects Cabinet confidentiality, was encroaching on a secrecy claim that ministers and officials use all the time – Cabinet aroma.

The doctrine of Cabinet confidentiality protects Cabinet solidarity and collective responsibility. It protects the views of the Minister in written submissions to Cabinet or what he or she says in Cabinet deliberations. That’s it! A Department’s view doesn’t get the Cabinet protection, even if a minister later adopts the position. The Department’s view will be reformatted into a cabinet submission signed off by a minister, and only that submission will be protected.

Mr Warren was challenging the practice of sprinkling Cabinet ‘fairy dust’ on anything vaguely related to Cabinet.

The Labor Government enters the fray

In what must be seen as a remarkably politically inept decision, Prime Minister Albanese and Attorney-General Mark Dreyfus shovelled another $394,188 of taxpayer’s money to lawyers to try to protect the Cabinet ‘fairy dust’ practices of officials.

That’s Labor spending nearly $400,000 cash on the barrelhead to protect Scott Morrison’s dirty secrets.

And that’s not all.

Because the Government failed in the Federal Court, and because of the loss and the foul play by Services Australia in the Tribunal, taxpayers will be forking out another $200K to $300K to pay for the work of the good Samaritans who went into bat for Mr Warren. Let’s say $900K all up!

Morally bankrupt

RoboDebt was a shameful and massive failure of public administration for which it seems no-one will be held to account. The human casualties, social damage and the financial losses have been immense.

Some might also question the point of spending all that taxpayer’s money on a Royal Commission that results in no accountability. Prime Minister Albanese failed to complete the job. However, the Royal Commission is not the focus of this article.

Albanese came to government promising transparent and accountable government. The more than a million dollars he has spent on anti-transparency cases just against me is evidence of this. The $650K he spent defending an unsustainable Cabinet fairy dust is evidence of this.

Maybe I’m being a little harsh. The one real benefit to flow from the Full Court case of Warren v CEO of Services Australia is the locking of the fairy dust cupboard. Cabinet secrecy should no longer be so casually asserted. I’ve already taken advantage of this in some of my FOI fights.

The silver lining in the disgraceful behaviour displayed in this case across both Liberal and Labor governments is that a valuable precedent to help enforce greater transparency in the future has been established. It can involve a big fight and a lot of persistence, but that’s what it sometimes takes to force change for the better.

So, thank you, Justin Warren.

Cone of Silence. Government hides gas Cartel’s dirty secrets in Clayton Utz fee-fest

This post was originally published on Michael West.

The decision by National Anti-Corruption Commission (NACC) leadership not to investigate those found to be responsible for the Robodebt scandal is a slap in the face for victims, Sarah Russell writes.

Public disaffection with the National Anti-Corruption Commission’s (NACC) secrecy and failure to prosecute corruption is on the rise as the Government and Opposition voted against an amendment yesterday by senators Jacqui Lambie and David Pocock to lift the blanket secrecy over Commission hearings.

Adding fuel to the fire, the NACC’s finding that there was no corruption in its investigation of Paladin was described by independent MP Zali Steggall as “staggering”.

Yet the writing was plainly on the wall, as Freedom of Information disclosures, mostly ignored until now, show serious issues with the Commission’s integrity and processes, particularly in relation to its failure to investigate perhaps the greatest scandal which enveloped the last government, Robodebt.

Robodebt was a massive $1.8 billion failure of public administration. Its 500,000-plus victims and the broader public had a right to expect that the NACC consideration of the Royal Commission referrals would be beyond reproach.

Yet documents detailing NACC’s internal processes, which the NACC was forced to release under FOI, are damning. The documents, which question the NACC’s integrity, have been on its website for several weeks.

But where is the public outrage?

No surprise the Labor/Coalition duopoly just voted down @DavidPocock’s & Jacqui Lambie’s amendment to the #NACC Act to lift the secrecy blanket over hearings.

Why have the old parties again voted against public interest transparency? Permanent governing class interests! #auspol https://t.co/YnESq7PrzF pic.twitter.com/dahPTxQWsQ

— Rex Patrick (@MrRexPatrick) October 10, 2024

On June 6, the NACC released a two-page statement announcing it would not be pursuing the six public officials but would instead “focus on ensuring lessons learnt”.

The statement noted that ‘the conduct of the six public officials … had already been fully explored by the Robodebt Royal Commission’ and that ‘a further investigation’ was unlikely to produce ‘significant new evidence’.

However, the conduct had not been fully explored because

the Royal Commission’s terms of reference did not include the power to investigate corruption.

Limited terms of reference

Former NSW Supreme Court judge Anthony Whealy KC, now chair of the Centre for Public Integrity, said the Robodebt Royal Commissioner Catherine Holmes did not have the jurisdiction or capacity to make findings on whether persons referred to the NACC had engaged in corrupt conduct.

Whealy said that in refusing to act on the six referrals, the NACC had

betrayed its core obligation and failed to fulfil its primary statutory duty.

The NACC also said it was undesirable to conduct ‘multiple investigations’ into the ‘same matter’. The Australian Public Service Commission recently concluded its inquiry, but it could only investigate five of the six individuals. The sixth person is believed to be a politician, so he or she has not been subjected to ‘multiple investigations’.

The Inspector of the NACC, Gail Furness, recently announced an investigation into the NACC’s refusal to consider the referrals after receiving about 900 complaints, many of which alleged corrupt conduct or maladministration by the NACC itself.

The non-recusing recusal

According to ($) Jason Koutsoukis in The Saturday Paper, the NACC statement revealed that the Commissioner, Paul Brereton, had recused himself. However, the statement did not use the word ‘recuse’. The statement said ‘delegate’: ‘In order to avoid any possible perception of a conflict of interest, the Commissioner delegated (my italics) the decision in this matter to a Deputy Commissioner.’

Stephen Charles AO, former Victorian Court of Appeal judge and a previous board member of the Centre for Public Integrity, stated: “When a judge in court proceedings recuses himself because of such a conflict, that judge does not – must not – take any further part in the proceedings; otherwise any decision by the court is likely to be stained by his involvement and set aside for the judge’s bias.”

Brereton’s response was extraordinary. He claimed that the term ‘recuse’ doesn’t mean what it does at law or in common usage, but rather, that it means only that a conflicted person is not the ultimate ‘decision maker’ in a case.

Why did NACC decline to pursue the Robodebt scandal? Conflict of interests revealed.

Although Brereton did not declare the exact nature of his ‘conflict of interest’, it is widely believed to be his longstanding relationship with Kathryn Campbell, the former head of the Department of Human Services, who was heavily involved in establishing and implementing the unlawful Robodebt scheme. Brereton and Campbell served together over many years as senior officers in the Australian Army Reserve.

NACC integrity policy failures

NACC’s Integrity Policy outlines a number of strategies to ‘mitigate or manage risks’ relating to referrals of people with whom NACC employees have a close association. Two key strategies for managing such a conflict of interest include ‘limiting exposure to the relevant information’ and ‘removing the employee from related decision-making processes’.

By not doing either of these things, Commissioner Brereton failed to adhere to NACC’s guidelines for managing conflicts of interest.

The NACC meeting minutes show Brereton remained present throughout the majority of a senior assessment panel meeting. According to Stephen Charles, it appeared Brereton considered he was “entitled to be present” in the NACC’s Robodebt discussions. MWM understands that Brereton only left the room towards the end as the decision was made.

🚨NACC finds no corruption in Paladin investigation. Please read the facts. They are staggering. This finding highlights that the watering down of the NACC legislation between the Govt & Coalition has made it ineffective.Act clearly needs amending. #auspol https://t.co/atx2kzGf7O

— 🌏 Zali Steggall MP (@zalisteggall) October 10, 2024

The NACC has refused to disclose which Deputy Commissioner was delegated as the final decision-making, claiming that revealing the identity of the decision maker would likely place them at risk of being targeted and potentially subject them to abuse, harassment and threats.

Quite a statement, given how the victims of Robodebt were treated and the fact that Deputy Commissioners are paid more than $600,000 a year.

The extraordinary secrecy is also not something you’d expect from such highly paid staff at an independent agency tasked with exposing systemic corruption in the Commonwealth public sector.

NACC investigating itself

The NACC legislative setup includes the role of an Inspector, “independent of the NACC and whose role is to oversee the operations and conduct of the NACC to ensure it complies with the law and acts fairly.”

The Inspector of the NACC, Gail Furness SC, will be conducting an investigation into the matter of why and how the NACC decided not to pursue those responsible for Robodebt. To many, it seems absurd that the NACC launched what seems like an investigation into itself, and it provides no comfort to the victims of Robodebt.

The hope that the NACC would provide a mechanism for justice and holding power to account has been dashed. It seems transparency and accountability have again left the building.

The Robodebt victims deserve better.

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* Main pictured top row from left: Paul Brereton, Ben Gauntlett, Nicole Ross. Bottom row: Kylie Kilgour, Philip Reed, Gail Furness

kNACCered on its birthday | The West Report

This post was originally published on Michael West.