Former SAS officers referred to national corruption watchdog over $230 million in government contracts to private security and intelligence “front company” Omni Executive. A Stuart McCarthy investigation.

Three former senior Australian SAS officers have been referred to the National Anti-Corruption Commission (NACC) over a series of multi-million dollar federal government security and intelligence contracts awarded to the private security company Omni Executive Pty Ltd.

According to the company’s website, Omni was established in 2012 and focuses on “delivering innovative national security, intelligence and critical infrastructure solutions to further our national interests.”

Since 2015, Omni has been awarded more than $230 million in security and intelligence related contracts by the departments of Defence, Foreign Affairs and Trade, Home Affairs, Prime Minister and Cabinet, the Australian Signals Directorate, the Australian Federal Police and the Australian Criminal Intelligence Commission.

Omni contracts hidden

More than $100 million in contracts appear to have been awarded to the company through limited or non-competitive tender. Contract notices for government contracts awarded to the company from 2012 to 2015 are not publicly available, although some sources suggest Omni may have initially been engaged as a subcontractor by another defence and security consulting firm. In a written statement, an Omni spokesperson told MWM:

“Due to the sensitive nature of some of the contracts and tenders, some details are not made public in accordance with standard government practice.”

Speaking to MWM on condition of anonymity, several former Australian Defence Force officers who served in Special Operations Command and the Australian Special Operations Task Group in Afghanistan during the period when Omni was established from late-2012 have also raised concerns about conflicts of interest, a lack of public oversight and the questionable legality of some of the taxpayer-funded activities undertaken by Omni.

The question of conflicts of interest was raised by one former officer who says that Omni employs a former permanent Air Force senior intelligence officer, now a currently serving Air Force reservist.

SAS regiment compromised?

These former officers, other independent sources and the NACC referral suggest that Omni was created after the SAS regiment’s secretive 4 Squadron was compromised when classified details of its activities in Africa were leaked to Fairfax Media in 2012.

The squadron was raised in 2005 under the Howard Government. In late 2010 Defence Minister Stephen Smith reportedly authorised 4 Squadron’s covert deployments to Nigeria, Kenya and Zimbabwe, responding to the growing threat from the Al Qaeda affiliated Al Shabaab terrorist group in Africa.

The Fairfax stories reported that Smith and Defence chief David Hurley thwarted a 2011 proposal from then Foreign Affairs Minister Kevin Rudd to deploy elements of 4 Squadron to Libya to support the NATO-led military intervention which saw the demise of the Muammar Gaddafi regime.

The CIA had been covertly supporting Libyan forces opposed to Gaddafi and identifying targets for NATO airstrikes. A team of British SAS soldiers and MI6 officers performing a similar role in Libya were captured.

Rudd had publicly called for Gaddafi to be referred to the International Criminal Court, saying of the UN Security Council’s reluctance to support his calls: “I presume it’s the concern, on the part of some, about precedents set in the future for references to the International Criminal Court for other countries in the world.” According to the Sydney Morning Herald in March 2011:

“Behind the scenes, [Prime Minister] Gillard’s office has been in despair at Mr Rudd’s public comments, saying his repeated interventions on Libya have come without the knowledge or approval of the Prime Minister.”

Smith, Hurley and Gillard were told

Stephen Smith was Minister for Defence in the Rudd-Gillard Government from 2010 to 2013. Last year he co-authored the Defence Strategic Review for the Albanese Government, before commencing his current appointment as the Australian High Commissioner to the UK. Former Prime Minister Rudd is now the Australian Ambassador to the US. In 2012 Smith, Hurley and Gillard were also informed by Afghan President Hamid Karzai, of apparent SAS war crimes in Afghanistan.

The former special forces officers we spoke to have described a “murky arrangement” that transpired between senior officers in headquarters Special Operations Command and senior Omni staff, from the company’s inception in late-2012 until it became fully operational in mid-2015. One source says:

“The lines seemed very blurry. And they seemed to have cracked some sort of code – [Omni] does dodgy stuff for Defence so they can pretend it’s not them, even though they provide [Omni] with everything [they] need. A win-win arrangement.”

Details of the funding sources for Omni’s establishment and initial operating costs remain unclear, however another former special forces officer says, “They pretty much came in and bought 4 Squadron off the shelf as a going concern.”

Signals intelligence, electronic warfare and secure communications equipment was transferred to Omni. Most of the civilian logistics and procurement staff and some of the 4 Squadron military personnel became Omni employees.

Military 4 Squadron personnel who attended high level government mission briefings in Canberra were excluded from discussions between Omni staff and senior government officials, despite having the necessary security clearances. One source says:

“It was like a corporate raid, only in this case ‘national security’ was the pretext for keeping uniformed special forces people out of the room and away from the Omni corporate raiders.”

A copy of the NACC referral obtained by MWM says explicitly that Omni was established as a “front company” in 2012 to enable Special Operations Command or other government intelligence activities in South East Asia or elsewhere, without a compromising ADF military signature.

Off the books

According to the complaint, SAS surveillance and communications equipment was purchased by Omni “so it wasn’t on the Department of Defence’s books.” The complaint alleges “senior SOCOMD officers gave preferential treatment to [Omni CEO] Jon Hawkins,” and “there were clear conflicts of interest and breaches of Commonwealth procurement guidelines.”

The NACC referral also raises concerns Omni may be conducting domestic surveillance on behalf of Australian Government national security and law enforcement agencies without proper oversight. Omni says the company “is not aware of any investigation by the NACC” and declined to answer questions on any previous or current surveillance activities.

Omni now has offices in Canberra, Brisbane and Perth, and operates aircraft from Jandakot airport in Western Australia, as well as Caboolture and Roma airports in Queensland. A current federal government directory lists the Omni general manager’s work address at Defence headquarters in Russell Offices, Canberra.

And medals too

MWM can confirm that at least two of the former SAS officers named in the NACC referral were awarded the Distinguished Service Cross – one of Australia’s highest military decorations – for command and leadership in Afghanistan.

One of these two led the 2001 SAS boarding of the Norwegian container ship MV Tampa, which had rescued 433 mainly Hazara asylum seekers en route to Christmas Island after they had fled Afghanistan from the resurgent Taliban.

The following year, this officer served in a command role during a 2002 incident reported in Time magazine, in which an SAS patrol allegedly killed 11 innocent Afghan tribesmen and wounded 16 others. That incident took place in Khost province during a US-led operation against Al Qaeda and Taliban fighters in eastern Afghanistan in the early phases of the war.

The officer later served in a senior command appointment at headquarters Special Operations Command when Omni was established by one of his SAS officer colleagues. He is now a senior public servant in the Department of Prime Minister and Cabinet.

The David McBride connection

Another former SAS officer named in the NACC complaint served in a senior command role in the Australian Special Operations Task Group deployment to Afghanistan in 2012. According to an ABC story, during this deployment his SAS soldiers allegedly killed unarmed civilians in a raid targeting a suspected Taliban bomb maker in Uruzgan province.

An internal ADF investigation found that the dead locals were combatants, however an investigation by the Afghan Independent Human Rights Commission found that the local civilians were wrongfully killed. Classified documents relating to the internal ADF investigation were among the ‘Afghan Files’ leaked by whistleblower David McBride to ABC investigative reporter Dan Oakes.

Marking the ten year anniversary of Omni’s establishment, the company’s CEO Jon Hawkins wrote in 2022:

“Omni has built a reputation as a trusted partner to Government and the private sector, providing solutions across land, air, sea, space and cyber domains to protect individuals, corporates and the national interest from an ever-growing list of traditional and non-traditional threats.”

Former military legal officer turned international lawyer and defence analyst Dr Glenn Kolomeitz, who also served with the SOTG in Afghanistan, says of the NACC referral:

“In general terms and without referring to any particular company, the NACC referral raises broader concerns as to the possibility that the government, in awarding contracts to private companies undertaking national security activities, might enable such companies to be established free from the the normal channels of parliamentary scrutiny applicable to [those] activities.”

Brereton fail

Kolomeitz, who authored last year’s referral of senior ADF commanders to the International Criminal Court prosecutor over higher command responsibility for alleged SOTG war crimes in Afghanistan, further says of this complaint:

“This also highlights the festering sore of the Albanese government’s abject failure to address command impunity for the Afghanistan war crimes documented in the Brereton Report. The findings of that report regarding command responsibility lack credibility.”

The 2020 Brereton Report found evidence of 39 murders of civilians and detainees by Australian special forces during the war in Afghanistan, but absolved all senior officers of any criminal culpability for their command failures. Retired Major General Paul Brereton is now the National Anti-Corruption Commissioner.

Responding to questions about this referral citing the referral number, a NACC spokesperson said the commission “does not provide information to third parties about the receipt, status or existence of individual referrals.”

This story does not allege any wrongdoing on the part of the former SAS officers named in the complaint, Omni employees, Smith or other government officials.

However Kolomeitz says “serious questions need to be asked about government probity and the continued prosecution of David McBride.”

McBride is due to face sentencing in the ACT Supreme Court next week, for offences similar to the 2012 classified information leaks from Rudd-Gillard government officials to Fairfax on 4 Squadron’s activities in Africa.

The individuals responsible for those leaks appear not to have been subjected to any disciplinary action. When asked by MWM about the 2012 classified information leaks and the establishment of Omni, spokespersons for Ambassador Rudd and High Commissioner Smith declined to comment.

Behind the McBride prosecution

A Defence official who spoke to MWM on condition of anonymity, says that Omni “seems desperate for people with positively vetted security clearances.” Positive vetting is required for access to the most highly classified government intelligence information, in order to protect top secret signals intelligence, electronic warfare and human intelligence sources and capabilities.

This information is often shared between the ‘five eyes’ agencies of the US, UK, Canada, Australia and New Zealand. Omni is currently advertising “TSPV [top secret – positively vetted] Opportunities” open to the end of this year on its careers portal.

Concern over the potential compromise of classified 5-eyes material is believed to be one of the motivations behind the government’s prosecution of McBride, however the Court proceedings in this case have been held under secrecy provisions invoked by the Attorney-General.

Key evidence has also been removed from McBride’s defence lawyers on the grounds the evidence had the potential to jeopardise “the security and defence of Australia” if released.

The positive security vetting process includes personal and sensitive aspects of an applicant’s life such as relationships, finances, associations and psychological assessments. In July 2021, Defence awarded an open tender, three-year $16 million contract to Omni for security and personal safety vetting services.

This contract was increased by $14 million in August 2022, then increased by a further $12 million in August last year.

According to the company’s website, Omni’s small fleet of helicopters and light fixed-wing aircraft offer “real time situational awareness through manned and unmanned intelligence, surveillance and reconnaissance (ISR) solutions.” The aircraft are “fully equipped with advanced aerial surveillance equipment, including daylight and infra-red full motion video, augmented reality systems and contemporary technology to exploit the information environment.”

Another contract cited in the NACC referral is a $675,000 limited tender contract awarded to Omni by Defence in June last year, for the provision of powered fixed wing aircraft for “project support” over a ten month period. This amount was increased by $608,000 in February this year. Limited tender procurement was used by Defence “due to an absence of competition for technical reasons.”

Omni currently operates two registered Cessna C208 ‘Caravan’ fixed wing aircraft. MWM can reveal that at least one of these aircraft – registration VH-OEZ – was fitted with signals intelligence equipment capable of geolocating communications devices transmitting cellular or WiFi signals, in addition to the full motion video and communications capabilities outlined on the company’s website and promotional videos.

MWM also approached former signals intelligence operator Braden Chapman, who served in 4 Squadron for five years including two deployments to Afghanistan with SOTG. “All I can confirm,” said Chapman, “is that Omni was active in 4 Squadron before 2015 because I remember a specific incident while flying on that aircraft in 2014.”

Flying beneath the radar

Although this aircraft is registered to undertake “aerial work” under Civil Aviation Safety Regulations part 138, MWM can reveal there are no records of any flights held by the Civil Aviation Safety Authority and Omni has never been subjected to a CASA audit. This lack of audit history suggests CASA has not regularly reviewed the company’s maintenance release or flight log details as part of the air safety regulator’s national oversight plan. Omni says the company “strictly adheres to government compliance and regulation obligations.”

One of the former special forces officers who spoke to MWM says that the titles of the government contracts awarded to Omni suggest most if not all are likely to have been for domestic Australian protective security and intelligence activities. However he added:

“Some of the company’s aircraft are certainly capable of supporting surveillance or clandestine operations in places like Papua New Guinea or Indonesia, under the pretext of natural resource or infrastructure surveys, international aid or training activities.”

Another of the former Special Operations Command officers MWM spoke to says of the relationship that emerged between Omni and senior government officials:

“These quasi-renegade elements on the inside think they’re doing the right thing, justified by preferring known or trusted entities. This arrangement is based on service loyalties rather than Commonwealth value for money requirements for the expenditure of public monies.”

In 2004 the Australian Secret Intelligence Service planted covert listening devices in a room adjacent to the East Timor Prime Minister’s office, during sensitive negotiations with the Australian Government over the Timor Sea oil and gas treaty, under the cover of a DFAT-funded international aid project.

Human rights organisations have also historically criticised Defence for SAS involvement in training Indonesia’s Kopassus special forces unit, which has been accused of atrocities in East Timor, Irian Jaya and elsewhere.

Former Prime Minister Gillard and the departments who have awarded $230 million in government security and intelligence related contracts to Omni since 2015 have also been asked for comment, including the office of Prime Minister Albanese. A spokesperson for the AFP says it has “no comment,” while DFAT says “we are unable to provide a response to your query.”

______________________________

Full statement from Omni Executive Pty Ltd

“Omni is an Australian-owned business delivering innovative defence, national security, intelligence and critical infrastructure solutions to further Australia’s national interest. Omni delivers cutting-edge technology and pioneering solutions in support of Australia’s sovereign capability. Omni is a proud veteran employer, providing the highest levels of professional services to our clients. Omni’s contractual work is secured via approved government procurement processes. This information can be found on the AusTender website. Due to the sensitive nature of some of the contracts and tenders, some details are not made public in accordance with standard government practice. This is consistent with other defence services organisations and service providers. Omni strictly adheres to government compliance and regulation obligations. Omni is not aware of any investigation by the National Anti-Corruption Commission.”

They didn’t know, really? Pursue top brass over alleged war crimes in Afghanistan, says veteran

This post was originally published on Michael West.

Gold swords and diamond encrusted daggers. New documents reveal the pomp behind outgoing Governor General David Hurley’s charity and royal regatta exploits. Jommy Tee with the story.

In 2119, a centennial will take place. As part of the ceremony a hand-written note will be taken out from a secret compartment in an engraved silver sword. No doubt the note – penned by Australia’s Governor-General, David Hurley – will be read aloud and historians will shake their heads trying to make sense of it all.

The note will be the century-long legacy of the G-G, instigated at the behest of Sydney businessman and Henley Royal Regatta and Leander Club member, Chris Hartley.

It will be immortalised moreover not only by the people of Australia but also the burghers of the UK’s Leander Club – the most prestigious and decorated rowing club in the world.

The close association between the G-G David Hurley and the Royal Family-connected Chris Hartley culminated in the 2019 King’s Cup military rowing extravaganza, held at the Henley Royal Regatta, and the subsequent and peculiar demise of the GG’s charity, the Australian Future Leaders Foundation.

Hurley’s term as G-G can be defined by his relationship with Hartley. One of secrecy, military vanity, and paying lip service to open and accountable administration.

The (dis)honour roll of the G-G’s controversies included not blinking an eye when appointing Scott Morrison to multiple ministries, starring in a promotional video for his builder, allowing Government House to be used a wedding reception venue for his daughter, as well as being a willing and powerful advocate to turn Chris Hartley’s pipe dreams into reality.

Before the G-G lobbied then Prime Minister Scott Morrison for $18 million of government funding for the ill-fated Australian Future Leaders Foundation, they had occasion to be involved with the 2019 King’s Cup military rowing. The grant was rescinded by the Albanese government after pressure from the cross-bench.

All the way with FOIA

An FOI – sourced from Australia’s closest ally the US – reveals a much more close relationship between the G-G and Chris Hartley than previously publicly claimed.

All of our previous attempts at obtaining documents associated with King’s Cup via FOI requests lodged with G-G’s Office have been knocked back.

The American FOI documents add considerable weight to previous evidence that Hurley and Hartley were very well acquainted and their association pre-dated Hurley’s advocacy for the Hartley-conceived Australian Future Leaders Foundation.

The relationship between the pair as part of the King’s Cup is worth revisiting. It highlights a case of the Hartley tail wagging the Hurley dog.

“No existing relationship”

Chris Hartley’s name first sprung to prominence as the man behind the mysterious Australian Future Leaders Foundation and the scandalous $18 million grant it was awarded by the Morrison government.

David Hurley’s arms need a ruler: how the Governor-General’s favourite charity got “top of the pile” treatment

At the time, the GG’s chief bureaucrat, Paul Singer, released a statement.

“The Governor-General does not have a relationship with Mr Hartley (other than discussions about the Australian Future Leaders Program and briefly meeting in 2019 around the 100th anniversary of the Peace Rowing Regatta),”

Later, at Senate estimates, the G-G’s official secretary added:

“there is no existing relationship”.

The relationship was described as “tangential, peripheral” through the King’s Cup.

A pictorial “how-to” guide

The American FOI documents point to the G-G being used as a pictorial guinea pig in Hartley’s legacy experiment that would be revisited in 100 years’ time.

In an email entitled, Sealed message in Annapolis Sword, Hartley wrote to the US Naval Academy in February 2020 – several months after the King’s Cup event – seeking a handwritten note from the winning US King’s Cup crew, coaches and the military hierarchy which would be time-capsuled and opened in 2119.

The one-page set of instructions was accompanied by several photos of Australia’s G-G sitting at his desk, Australian and Commonwealth of Australian flags draped in the background, penning a similar note.

It is of course one thing for the G-G to write the note; it’s another thing to be photographed writing and signing it, and yet another thing to have the sealed note in its archival packaging laid upon on the G-G’s official letterhead.

It does strike us at MWM that Hartley’s capacity to organise and obtain access to the photos, taken in the G-G’s office as going well beyond the oft-stated “no relationship” status between the pair.

Hartley referred to the photos in his email simply as “See various photos below”, and wanted to collect similar proofs from the US hierarchy.

It beggars belief the compliant Hurley so readily acquiesced to having these photos provided to Chris Hartley and then having Hartley use them as an embarrassing footnote to a how-to set of instructions. Perhaps this was the “tangential, peripheral” relationship the G-G’s Mandarin, Paul Singer, referred to at Senate estimates?

M Kingdom for a sword (or two, or three)

An earlier email – subject heading: The King’s Cup and POTUS – sent by Hartley in January 2020 alerts the Americans to the fact that Hartley had commissioned a “one-metre solid silver sword with a gold river on the side plus a diamond marking the location of Henley.”

The email lets slip there’s not one sword, no – not two, but in fact three swords.

Hartley also divulged the news of Australia’s vice-regal involvement with one of the swords:

“the Australian Governor-General and Commander-in-Chief has already agreed to present one to Leander Club and has written a message sealed in a secret compartment for the next one hundred years.”

The photos of the G-G signing his hand-written ode to the Leander Club subsequently became an appendage to the how-to-guide signing instructions for the Americans.

The email also details attempts to get Her Majesty The Queen to sign a similar note for sealing inside the sword designated to be presented to Henley Royal Regatta.

Her Majesty, however, would only write a note on the proviso that the President of the US (POTUS) also penned a similar note.

MWM has been unable to confirm whether the Queen and POTUS did write notes.

We can, however, say that Australia’s GG and Commander-in-Chief and Head of State, David Hurley, had no compunction and was the first, and perhaps only, Head of State to do so.

A dagger for the Commander-in-Chief

The email also let on that the countries that raced at the King’s Cup but did not win the event, would receive a “prize”.

Well, not quite the countries, but the respective Commander-in-Chiefs would receive a dagger fashioned by no less than the Royal Jewellers, Cleave & Co.

MWM has previously detailed how one of the King’s Cup daggers was presented to the New Zealand Governor-General and Commander-in-Chief, Cindy Kiro, in August 2023.

According to the Leander Club, which wrote a news update about the NZ presentation, the dagger was constructed of “silver, gold and diamond with hand-enamelled New Zealand colours”.

We await news from our own G-G about his very own dagger.

The Leander Club dinner

As MWM has previously exposed, the relationship was, in fact, much deeper and goes back to at least 2018 when Hurley was NSW Governor.

Over a slap-up dinner in March 2018 at the Royal Sydney Yacht Squadron, organised by Chris Hartley, to honour the 200th anniversary of the UK’s Leander Club, the star guest was then NSW Governor David Hurley.

Hurley, who sat beside the host, Chris Hartley, other assembled Australian and international military top brass, and rowing and Leander Club officials announced to the world the “Australian Defence Force would defend their King’s Cup title at the 2019 Henley Royal Regatta.”

Apparently, the King’s Cup relationship between Hartley and Hurley was claimed to be non-existent, yet without the “tangential” interactions, one doubts the Hartley/Hurley team would get together again to promulgate the infamous fiasco of the Australian Future Leaders Foundation (AFLF).

This is serious, Ma’am

There is, of course, a serious side to the Hartley/Hurley relationship, and it goes to accountability and whether the G-G’s involvement with Hartley in the King’s Cup clouded his judgement regarding subsequent advocacy for the AFLF.

MWM put multiple questions to the G-G in relation to why the Australian public weren’t told about the pre-existing relationship when the Morrison government granted $18 million to the Australian Future Leaders Foundation.

Royal Favours: pipe and slippers time for David Hurley and Scott Morrison

Crikey previously reported on the conflict of interest aspects of the grant.  The G-G was ultimately in the position of signing into law two legislative amendments that had been passed specifically for the benefit of the AFLF. One to enable the payment of $18 million (with a guarantee of more) and the other for conferring Deductible Gift Recipient tax status.

Despite us posing the question, It is still unclear whether the G-G even divulged his relationship with Hartley through the King’s Cup to the Prime Minister when he sought Government support funding for the Foundation that was headed by Hartley.

It really points to the lack of an effective institutional mechanism to hold the G-G and his Office accountable.

In relation to the King’s Cup, everything has been brushed aside via disingenuous public statements from the G-G’s office, obfuscation at Senate estimates hearings, and refusal of FOI requests because of specific in-built exemptions in the FOI Act.

MWM has lodged several FOI requests with the G-G’s office and they have all been denied due to the section 6A provision in the Act.

Basically, the FOI Act only has a restricted application to the G-G’s Office, being relevant only in respect of requests for access to documents relating to “matters of an administrative nature.”

The G-G’s website adds,

The Act does not apply to requests for access to documents that relate to the Governor-General’s discharge of official functions conferred by the Constitution or an enactment.

MWM has long held the view the G-G’s Office categorises anything embarrassing as being exempt from FOI.

For instance, our request for all correspondence associated with King’s Cup – which we naively thought constituted an administrative matter – were ruled as being “a substantive power and function” of the G-G and hence exempt from FOI.

We also put direct questions in relation to the dagger to the G-G – whether he had received it, whether he would keep it and saw it has a perk of office or whether he would donate it to a national institution?

We also queried why the G-G’s handwritten note to the Leander Club and photoshoot were not diarised and publicised and whether correct protocol had been followed regarding the retention of documents under the Archives Act.

The National Archives informed MWM that “if a note is created in Governor-General’s official capacity, a copy should be created for their official records.” These will be managed in compliance with the Archives Act.

In the meantime, the silence of the G-G persists.

ADF minions

Having played and landed the G-G like one would lure a trophy trout, Hartley reached his bag limit by capturing various international military officers, defence attachés, and diplomats using the seductive lure of social engagements as bait.

The FOI documents expose in painstaking detail and, at times, comical fashion, the rarefied world of Sydney businessman Hartley, who ingratiated himself with the military top brass of the King’s Cup participants (Australia, UK, US, New Zealand, Canada, France, the Netherlands, and Germany).

When the idea for the King’s Cup was still forming in Hartley’s mind, he was laying the groundwork for seeking high level government support, including in Australia’s case hosting the Australian defence minister in July 2018.

In one email to the American Navy’s rowing coach, Hartley recounts his time at the 2018 Henley Royal Regatta, stating:

“…France and the UK have formally confirmed. The Australian Defence Minister was my personal guest on Saturday, and the Kiwis flew over their coach for the recce.”

There was no mention of the hospitality listed in then-Defence Minister Senator Marise Payne’s register of interests. We do, however, note that the Defence Minister Payne had attended a Chris Hartley-organised event – the Gurkha Challenge – in Sydney the year prior.

The room with a view

In effort to entice countries to participate in the Kings Cup, and move it from concept to reality he organised a dinner in Sydney on October 19, 2018.

The venue for dining would be the Rothschild & Co Boardroom – a suitably prestigious location for the gathered military officers and officials. Rothschild & Co. is one of the world’s largest independent financial advisory groups.

In an email, Hartley described the venue as:

….34 floors above Sydney overlooking the Opera House and the Harbour, and I will raid the cellar.

MWM has never been to the Rothschild Boardroom, but we are reliably informed that it does have commanding views, and we can only assume that the top military brass enjoyed the magnificent views and top tipples.

The dinner would also double as a briefing session for the gathered senior military figures from around the world.

The gathered (male) military top brass would “collectively discuss the gender balance in the crews, review the trophies, be briefed on Regatta logistics and protocol, fund-raising and presentations, and watch a number of videos, including footage of Henley Royal Regatta and the 1919 crews and event.”

Hartley gathered and received acceptances from the UK Vice Chief of Defence Services, (VCDS), the Canadian VCDS, defence attachés from New Zealand and Italy. An Australian Major General and Air Vice Marshall accepted. Other invited guests included the Chief of the Australian Defence Forces, Angus Campbell, UK’s Major General  Ivan Jones and Air Vice Marshall Tunnicliffe.

It is believed the US embassy in Australia also sent a representative after Hartley had sent out his invitation to General Paul Selva too late.

In that email, Hartley also flagged that he would contact the US military in order to assist with his trip to Washington.

Hartley added, “I will brief the British and Australian defence attachés in Washington, not least as I want one of them to host a Kings Cup event for me.”

Diplomatic panel beating

The lead-up to King’s Cup and its post-event activities were a travelling circus of functions, events, and photo opportunities, all of which involved Hartley hobnobbing with the military’s finest and the diplomatic corp.

Nothing epitomises the sheer scale of the ludicrousness more than an event Hartley planned to curry favour with various London-based Ambassadors and High Commissioners from the competing King’s Cup countries.

The event would show off the trophies and sword Hartley had commissioned to the no doubt bedazzled throng he would invite.

Hartley stated:

“…and will outline the diplomatic engagements, including permission to use Henry VIII’s wine cellar (underneath Ministry of Defence HQ in London) to bring the cup and sword to manufacture. This will allow the Ambassadors/High Commissioners to physically contribute (a little bit) to the manufacturing process and wield a hammer or two.”

If anyone has photos of the diplomatic corp, ditching their finery and livery, for a spot of trophy panel beating and sheet metal work please forward them to us.

It is unclear whether the intended guest had to BYO Tudor goblets.

As a footnote, the trophies were constructed from molten-down military memorabilia, including from the Australian War Memorial – a topic MWM previously covered in-depth.

GG David Hurley and his beloved foundation, a secret priority yet at ‘arms length’?

Weapons manufacturers sponsorship

The funding from the King’s Cup extravaganza was to be underwritten by sponsorship from the defence industry.

The FOI material shows that a key objective of the King’s Cup media strategy was

to generate publicity to support fund-raising for the event.”

Hartley took every opportunity to press his military contacts for the names of potential sponsors as significant funding was required.

“Within the constraints of Henley Royal Regatta and all eight military organisations, we continue to vigorously pursue funding from likely supporters. Your leads and contacts are appreciated, and time is of the essence. Where direct contact with potential supporters is to be avoided, consider nominating a Defence Industry Association lead. Please contact me for further detail.”

Hartley added that his structure corporate package would provide:

“Exceptional exclusive access and impact in return for support of all eight nations starts at approximately the cost of a single Javelin missile or one Back Hornet UAV.”

Helpfully, Hartley directed sponsors to

channel funding through their Australian subsidiaries to derive tax advantages.

“Financial support will flow through a registered charitable entity, audited and partnered by an Australian Federal Government organisation. This has the added incentive of tax deductibility if funds flow through an Australian subsidiary”.

At the official launch of the King’s Cup held in New Zealand House in London – the launch was originally slated for Australia House but could not be accommodated due to logistical reasons – Hartley was given a platform to:

“…cover the inevitable costs involved, charitable status and government audit assurance as well as critical dates, political and diplomatic invitations, and opportunities for involvement and media”.

A reminder that the King’s Cup was run through a charity registered in Australia – the King’s Cup Organising Committee – which was controlled by Chris Hartley. The charity advised the charity regulator that its the program location was Government House, Dunrossil Drive, Yarralumla.

ADF resource (th)rowing

The newly released documents also identify the previously unknown strong hand the Australian Defence Force played in assisting Hartley in organising the King’s Cup, including having defence personnel involved in the event’s logistics, public relations, and media output.

The resources the ADF threw at the event included having a Commander operating out of Australia House in London and providing logistical support with regard to sourcing boats. The contact point for the Commander was via a @kingscup.org email address.

Hartley advised in an email about the staffing arrangement:

…running this exercises out of Australia House in London by kind permission of the ADF chain of command…

That would be the same structural ADF chain of command that had little knowledge of war crimes committed under its watch but was quite prepared to sufficiently inform themselves to delegate resources to a boat race.

Additionally, the ADF made available a Flight Officer and Sergeant to the King’s Cup media team from late June 2019 through to the conclusion of the event. The role of the ADF personnel was to provide photographic pool coverage of the event and its lead-up and to develop content (including video) for inclusion on the King’s Cup web page.

We asked the ADF a number of questions in relation to the extent of resources dedicated to the King’s Cup and who in the chain of command gave approval. They did not respond.

The G-G, the Leander Club and the Royal Jewellers (Cleave & Co) also did not respond to our questions.

The King’s Cup charity, run by Chris Hartley, no longer exists, having voluntarily revoked its charity status in 2022.  Previously submitted questions to both the charity and Chris Hartley remain unanswered.

The AFLF, a registered charity again run by Hartley, and the pet project of the G-G David Hurley disappeared off the charity register on 1 February 2024.

The Hartley/Hurley relationship should have been openly declared by the G-G rather than being swept under the Axminster carpet. It is a case study of how not to handle a real conflict of interest and really should have seen the G-G dismissed.

Soon, the G-G will leave Government House, having dutifully served the Australian people and, in particular, the interests of Chris Hartley.

All the King’s Horses: GG’s mysterious Australian Leaders’ charity vanishes like the King’s Cup itself

This post was originally published on Michael West.

An internal report that Defence tried to keep secret highlights the high risks involved in growing a civilian workforce to maintain naval nuclear reactors for AUKUS submarines. Rex Patrick reports.

Defence has surrounded the AUKUS submarine project with a blanket of secrecy – everything’s Top Secret so far as they are concerned.

But that’s never been true. Not everything about AUKUS should be security classified, and last week, the Department lost a round in its fight for total secrecy when the Administrative Appeals Tribunal ordered the release of documents that relate to the civilian workforce that Defence will need to take care of the naval reactors on our planned nuclear submarines.

The documents tell a worrying story, highlighting critical risks Defence faces in building the workforce required to safely operate naval nuclear reactors. Defence, an organisation currently some 4,400 workers short of meeting its own uniformed workforce targets, will be asked to grow a civilian workforce to safely install, commission, operate, and sustain six submarine nuclear reactors in the most challenging circumstances.

And while the alarm bells have been rung loudly in the reports, neither Prime Minister Anthony Albanese nor Defence Minister Richard Marles show much sign they’ve heard them. It’s all full steam ahead, and damn the torpedoes!

Reactor care is just an annoying detail, it would seem.

This latest release of information, extracted through FOI from a most reluctant and secretive department, reveals another risk to add to the already risk-overloaded AUKUS project.

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

Nuclear workforce composition

In order to operate eight nuclear reactors, a civilian nuclear workforce of between 1,400 and 2,500 is needed. That includes developing highly skilled jobs in the areas of governance and regulations, management, production and sustainment, safety and assurance, science and health, test and evaluation, and training and education.

That breaks down further into specific jobs: managers and workers, cyber security specialists, solicitors, inspectors, engineers, chemists, metallurgists, medical practitioners, crane operators, electrical and mechanical fitters, nuclear welders and pipe fitters – just to name a few.

They need to have specialist nuclear qualifications, competencies and relevant industry experience.

Nuclear workforce risks

The problem is that Australia just doesn’t have the talent pool with the required mix of qualifications, skills, experience and behaviour to meet the needs. Already we are seeing knowledge and expertise inside our existing small nuclear agencies, ANSTO and ARPANSA, being drained to assist the Australia Submarine Agency – meaning those workers are not performing their regular tasks.

Defence’s internal report, which is very comprehensive, lays out the tasks to fulfil the roles in the context of competition for the workforce from across industries, including space, shipbuilding, mining, and construction.

The report also examines the social challenges, recognising that

workers will need to live in reasonable proximity to nuclear facilities, something their families may not be too keen to do.

And it suggests that the availability of experienced workers in the United States and United Kingdom, the only international jurisdictions Defence can draw workers from on account of AUKUS security clearance requirements, will be limited (and no doubt poaching of experts from these jurisdictions will cause relationship issues).

On the security clearance front, the report mentions a nine-month delay in getting positive vetting outcomes (at an average cost of $15,280 per person) from its own organisation; this is an example of a long-standing problem that Defence has been quite unable to fix.

Other risks range from lack of available skilled workers, difficulties in developing experience (which will require personnel to be embedded in US or UK reactor operators and their workforce) and much uncertainty and lack of detail in the AUKUS program itself.

Nuclear workforce mix

The civilian nuclear workforce requires more people who are vocationally qualified (65%) than qualified through higher education (35%). That presents a mismatch with trends in the Australian workforce where there has been significant growth in the bachelor’s degree or higher category and where enrolments in vocational training have declined.

The geography of AUKUS also presents a problem. The AUKUS submarines will be built in SA and supported from WA, the mainland states with the lowest number of mechanical, electrical, mining, industrial and production engineers in their workforce.

The risk paradox

The report does identify a number of risk management strategies that the Senate and Auditor General can examine moving forward, but the fact is:

Defence is simply no good at risk management.

Dumb Ways to Buy: Defence “shambles” unveiled – former submariner and senator Rex Patrick

The paradox is that the test of whether Defence has the necessary appreciation for risk is whether it would be silly enough to proceed with an extremely risky project like AUKUS in the first place. They have already failed that test.

Professional project managers would most likely not have recommended proceeding with AUKUS.

Vice Admiral Mead heads the AUKUS project. He was a great ship captain, but just as a sane person wouldn’t take a project manager and anoint them ‘ship captain’, no sane person would take a ship captain and anoint them ‘project manager’ – and certainly not for Australia’s biggest project of all time.

To be fair, Defence has initiated some bureaucratic processes to address the concerns raised, but the magnitude of the issue brings likely certainty they will fail.

Who’s to blame?

In some sense, you can’t blame the Navy, they just want to buy their ‘Ferrari’ submarine.

The problem is the political leadership that approves and backs these crazy budget-draining plans.

But the politicians won’t be held accountable. By the time we get to a point, if indeed we do get to a point where we are operating a Virginia Class submarine without an experienced civilian workforce supporting Defence, Albanese and Marles will be well and truly gone.

Albanese will be gone because he will have served his time and moved on. Marles will be gone because no one will want anything to do with the political ineptitude that he’s demonstrated in backing the AUKUS program.

It will be a $368B poorer community that will be left to suffer the half-baked AUKUS program and hopefully not an overcooked submarine nuclear reactor.

I just want a Ferrari, sorry, a nuclear submarine, no matter the cost

 

This post was originally published on Michael West.

Defence Minister Richard Marles rolled out some glossy new brochures this week spelling out the composition of the Australian Defence Force in the decades ahead. As media quibbled about this equipment purchase or that one, former Senator and submariner Rex Patrick explains the sovereignty sell-out hidden in plain sight.

Washington Syndrome

It’s confirmed. All the evidence points to the Defence Minister suffering from Stockholm Syndrome (or more accurately Washington Syndrome), except that he hasn’t just formed a bond with his Defence Department, where he won’t challenge them. He’s swallowed the whole kit and caboodle; adopting Defence lingo and lines as his own.

Marles has expressed Defence’s wishes beautifully, without revealing explicitly what that wish is. But it’s sitting there in plain sight. 

National Defence Strategy

The use of smokescreens is a longstanding battlefield tactic, and it’s often employed by bureaucrats too. To get a clear and truthful picture from the National Defence Strategy released this week, you have to peer through a dense cloud of verbiage to get a clear sense of what’s really going on. 

Early in the document the strategic framework is laid out.

Our Alliance with the US remains fundamental to Australia’s national security. We will continue to deepen and expand our defence engagement with the US, including by pursuing greater scientific, technological and industrial cooperation, as well as enhancing our own cooperation under force posture initiatives.

So, we’re joined at the hip to the United States, and we intend to stay that way.  

The document spells out why Defence thinks we need to do that.

The optimism at the end of the Cold War has been replaced by uncertainty and tension of entrenched and strategic competition between the US and China.

…

It is accompanied by an unprecedented conventional and non-conventional build-up in our region, taking place without strategic reassurance or transparency.

…

This build up is also increasing the risk of military escalation or miscalculation that could lead to a major conflict in the region.

Indeed, it zooms in with on the specifics.

The risk of a crisis in the Taiwan Strait is increasing, as well as other flashpoints, including disputes in the South and East China Seas and on the border with India.

It then lays out how Australia and the US will jointly prepare to face our enemy – China.

The Government will continue to strengthen its defence engagement with the US to:

• ensure joint exercises and capability rotations with the US are focused on enhancing collective deterrence and force posture cooperation.

• Acquire the technology and capability required to enhance deterrence, including through increasing collaboration on defence innovation, science and technology.

• Drive interoperability and interchangeability in the development of the of the ADF’s force structure and enable Australian access to US systems and capabilities, including through technology transfer, information sharing, innovation, co-development, co-production and co-sustainment programs;

• Leverage Australia’s strong partnership with Japan in its trilateral context, including opportunities for Japan to participate in Australia-US force posture cooperation activities, to enable interoperability and contribute to deterrence; and

• Progress enabling reforms to export controls, procurement policy and information sharing to deliver a more integrated industrial base.

Meanwhile, the US is increasing its military footprint in Australia in terms of facilities in the north (mission briefing/intelligence centre and aircraft parking aprons) at RAAF Darwin, fuel storage at Darwin Port, infrastructure at RAAF Tindal near Katherine and logistics storage in both Victoria and Queensland). 

This is on top of the long established top secret signals intelligence base, the Joint Defence Facility Pine Gap, and Australian support for US naval communications through the very low-frequency receiving and transmission facility at North West Cap. As far as American strategists are concerned, Australia has long been “a suitable piece of real estate”.

But now there’s a new dimension to the alliance with Australian taxpayers are sharing the alliance love by pouring billions into the US submarine industrial base.

Join our Team! AUKUS foreign expenditure sinkhole blows out to $12B … already

US Seventh and a Half Fleet

Of course, it’s hard to fight a conflict in Taiwan Straights with an army. That’s reflected in the distribution of future expenditure outline in the Integrated Investment Program, released alongside the National Defence Strategy.

The Navy will receive almost 40% of all Defence expenditure. The Royal Australian Navy will become the seventh and a half fleet of the US Navy, supported by what are being referred to as the expeditionary air operations by the Royal Australian Air Force.

Again, hidden in plain sight. 

Taiwan

Taiwan is a democracy of 22 million people. I might like to think we would come to their aid in the event their democracy was threatened.

But sending our sons and daughters to engage in a northern hemisphere conflict is a matter which should be decided upon by our Parliament at some future time.

We should seek to have a balanced and flexible Defence Force optimised first for Defence of Australia and second for near regional security (a deployment to Taiwan, if approved by our elected members, should draw from an order-of-battle optimised for Defence of Australia).

Sovereignty Stolen

But that’s not what’s happening.

It’s all too tempting to suggest that the sovereignty sell-out started at with AUKUS, announced by Scott Morrison on 16 September 2021 and adopted by Anthony Albanese at the Kabuki show in San Diego on 15 March 2023. But it didn’t.

For those astute enough to have picked up and read a copy of Professor Clinton Fernandes’ book “Sub-Imperial Power: Australia in the International Arena”, they’ll know AUKUS is just natural and obvious. So too is the even greater embedding of the ADF into the US military to serve the needs of Washington that has been announced this week, albeit without announcement.

The process is almost complete. The Australian Defence Force’s integration into the US military to serve the needs of Washington has been announced, albeit without announcement, this week.

Arguably the only thing left to do is to adopt American spelling and replace the letter ‘c’ with the letter ‘s’ in ‘Department of Defence’.

History repeats

We have been down this road before. 

In the 1920s and 1930s conservative Australian Governments saw Australian security as part of that of the British Empire as a whole. As a consequence, they implemented defence programs that were designed to produce forces, especially the Royal Australian Navy, that were hopelessly unbalanced and only made sense as a subset of British forces. Imperial Defence was prioritised ahead of national defence in a ‘strategy’, if you can call it that, that compromised Australia’s then very new national sovereignty and almost came to disaster in 1942.  

Now, decades later, Australia’s defence force is being integrated into that of a great and powerful friend as tightly as when we were part of the British Empire. Ironically this is now happening under the party which, when it was led by Labor icon John Curtin, expressed scepticism about imperial defence and urged a focus on defence of Australia.  

Bureaucratic and political self-interest

Australia’s new “National Defence Strategy” really is nothing of the sort. It’s a sub-set of strategic planning made in Washington, not an Australian national perspective.  

AUKUS has devoured whatever vestiges of independent strategic thought that might have been lingering in our Defence Department.  

But don’t imagine that there’s any dissent about this in Defence Headquarters.

Those in Defence bureaucracy guiding our politicians are be happy, uproariously happy, because they’ll personally benefit from the arrangement. 

AUKUS and this latest steerage will serve as a tremendous career and institutional opportunity for them. They’ve cemented their position in an alliance arrangement that involves important meetings and conferences, important decisions, trips overseas, and, for some, exchange postings. For them, they’ve got ringside seats and the opportunity to be occasional players in the big league.

Which brings me back to Defence Minister Marles, who can’t really be blamed for the sell-out. 

Marles is, and never was, the sort of political figure that could develop much of an understanding of what is going on around him, let alone be the one to lead with strategic vision and agenda forward. He’s too busy learning the lingo, enjoying the photo opportunities, and impressing upon his ‘sub-ordinates’ in Defence Headquarters that he’s not to be referred to as the Defence Minister, but rather as the Deputy Prime Minister. Surely he deserves that courtesy!

Marles Mauled: Rex Patrick demolishes Defence sophistry on AUKUS, submarines, nuclear

This post was originally published on Michael West.

Digital care platforms like Mable are seeking to bring higher levels of efficiency, choice and control to the National Disability Insurance Scheme (NDIS). But are they striking the right balance between those principles and client safety? Zacharias Szumer investigates.

The NDIS is a model built around giving choice and control to people with disability. This means allowing clients to manage their own funding and hire their own staff.

They can do this through placing ads on Gumtree or Facebook or through platforms like Mable, a digital marketplace connecting clients and independent workers.

Companies like Mable offer clients a higher level of safety thanks to a “strict on-boarding process”  – “reference and qualification checks, police checks, working with children checks” – and quality control to weed out workers who are found to have put clients at risk.

These safeguards are, among other things, why Mable requests a commission of roughly 18% for its services.

However, several anecdotes recently shared with MWM raise questions about how seriously the company takes client safety.

An unwelcome delivery

James hired Marian* via Mable for “general support work,” such as helping with attending medical appointments, social activities, and grocery shopping.

However, before too long, red flags started appearing, said James, a 45-year-old man who is on the autism spectrum and experiences anxiety, agoraphobia and post-traumatic stress disorder, along with other health issues such as fibromyalgia and chronic fatigue.

Marian would show up unannounced, having made plans on his behalf. She also billed him for things he “hadn’t explicitly agreed to.”

“She did not seem to respect or understand about anxiety or autism spectrum sensory issues – key things she had claimed she had experience supporting,” James said.

Eventually, he wrote her an email asking her to respect professional boundaries. He says that she then went silent and so he eventually terminated her contract.

A few weeks later, Marian left an “aggressive letter” in his letterbox. He informed Mable that, if she made any further contact, he would be referring the matter to the police.

One section of the letter reads:

For any person to say i do things with intention and without thought to bring harm to any of my clients to cause them harm is unforgivable.

“To have a letter sent to me in this way has re-triggered trauma and made me feel very unsafe in my own home,” James wrote to Mable in a subsequent complaint. “I initially felt she just needed more training/experience, but after this letter today, I think she is a danger to both herself and vulnerable people like myself.”

Left alone, miles from home

Marley* – a 34-year-old on the NDIS for a degenerative, neurological condition – connected with Eric* after putting an ad on Mable seeking a driver to take her to a doctor’s appointment.

In the ad, Marley mentioned being immunocompromised and requested that the worker wear a mask. However, according to a subsequent complaint Marley made to Mable, Eric arrived unmasked and told her he couldn’t find any masks.

According to Marley, Eric also said: “Don’t worry about it, I’m vaccinated”.

After a quick search, Marley located a “loose, lone mask” under the passenger’s seat, which she suspects had already been used. Nonetheless, Eric put it on, and they set off.

Eric had arrived 15 minutes late, Marley said, and so she was quite irked when, shortly thereafter, she was informed that they needed to stop for petrol.

After pulling into a petrol station, Marley told Eric she was already running late for her appointment and said he should have filled up his car before starting the job.

According to correspondence seen by MWM, Eric told Mable that Marley became angry and was swearing and pointing her finger at him – a version of events that Marley denies.

Marley says she asked Eric to take her home, which Eric refused, telling her that he felt unsafe and asking her to leave his car. Eric reportedly called the police.

Marley said she was disabled and could not walk back to where he was staying.

Eric then ‘sneered’ at her and said: “you’re not disabled,” according to Marley. She wrote to Mable that:

I am absolutely disgusted that Eric is in the community, working with disabled people, yet has not learnt about invisible disabilities.

Eric told Mable that Marley kicked his door when she finally exited the vehicle, which Marley claims didn’t happen.

“This incident has left me really shaken … to the point where I feel unsafe in public,” Marley said. “I’ve been suffering panic attacks since the incident.”

Complaint outcomes

In both James’ and Marley’s cases, a client and support worker gave Mable a different version of events – a situation the company seemed unable to resolve.

Mable later told Marley that, in a situation “involving wide-ranging allegations by either party, and where there are two differing explanations of the events which have taken place, Mable has a limited ability to investigate”. It was thus “unable to mandate both parties to agree on an outcome.”

The response disappointed Marley, who says that Mable could have sought footage from Eric, who had started recording on his phone at the service station or requested to see footage from the service station.

Neither support worker had their accounts cancelled. The company told Marley it had “addressed this matter with the support worker and noted this feedback against their file.”

A similar message was received by James, who was told the matter had “been communicated to the support provider and will be noted on her account.”

“If any future reports come through, this will assist Mable in determining her suitability for the platform”, the company said. James told MWM:

Essentially, Mable did not do anything.

Mable’s response

When asked by MWM what “addressing” or “communicating” a matter with a support worker meant, Mable said its strict privacy policy prevented it from clarifying what had happened in either case and directed us to its incidents and complaints handling policy.

The company “takes the reporting of any incident, allegation or complaint against clients or support workers with the utmost seriousness, reviewing all such reports and investigating and taking action where appropriate to do so,” a Mable spokesperson said.

“We operate in highly regulated areas of the sector and with people who can be extremely vulnerable. Therefore, it is our top priority to ensure everyone is appropriately safeguarded while providing or receiving services via the Mable platform.”

“With a platform that has existed for 10 years and which operates at a significant scale, people’s safety is not something we can afford to take lightly.”

Registration and transparency

Negative incidents and complaint processes that leave clients dissatisfied aren’t unique to digital platforms like Mable. Throughout the public hearings of the disability royal commission, many witnesses spoke of “negative experiences and poor outcomes when complaining to organisations”. The commission’s report also stated:

Only in a few cases were these experiences positive with appropriate action taken.

However, Dr Fiona Macdonald, industrial and social policy director at the Centre for Future Work, believes digital platforms add an additional element of risk.

“There doesn’t appear to be any transparency or information to show that real accountability is taken for safety. That’s the problem with the way the platforms operate, particularly where they’re not registered providers, and they’re not held responsible within the NDIS system,” said Macdonald, who has long been critical of the “gigification” of care work.

The system, in enabling unregistered workers and unregistered providers to operate, doesn’t actually acknowledge the significance of the support or the importance of safety, and how critical that might be to somebody’s wellbeing.

An NDIS review recommendation that all providers be registered – and thus required to undertake compliance and auditing processes – has encountered significant backlash. Some say the requirement would violate the core NDIS principles of choice and freedom.

Macdonald said it’s important that regulation was “proportionate to risk”.

“I don’t think it’s feasible for the system to run on public funding and ensure quality and safety without some kind of oversight and regulation in all circumstances. Some people may be well and truly able to manage that themselves, but it’s in a system that has to uphold a standard.”

* Some names have been changed to protect people’s identities, and some details have been left out for brevity. Both incidents occurred in 2022.

Mable, the Uber of care work. Innovation or a race to the bottom?

 

This post was originally published on Michael West.

Joe Biden says he’s “considering” an end to the prosecution of Julian Assange. Anthony Albanese says, “enough is enough,” but not much else. Rex Patrick and Philip Dorling discuss the latest developments in the Assange case.

Supporters of Julian Assange were encouraged on Thursday by US President Joe Biden’s off-the-cuff- remark that his administration was “considering” an Australian request to end the espionage prosecution of the WikiLeaks founder.

Assange’s spouse, Stella Assange, called on Biden to “do the right thing” and “drop the charges”. Prime Minister Anthony Albanese said Australia was using “diplomatic efforts at every level to communicate that it is time that this was brought to a close, enough is enough.”

However, getting to the bottom of what governments do in the secretive world of diplomacy can often be akin to investigating a murder mystery. The clues are elusive and fragmentary. In the case of imprisoned Australian journalist Julian Assange, it’s a case of a dog that didn’t bark.

Parliamentary action

Media reports attributed the apparent shift in the US position to Albanese’s support for a parliamentary motion moved by independent MP Andrew Wilkie on February 14 that declared the Assange extradition proceedings have “gone on for too long” and “underline[d] the importance of the UK and USA bringing the matter to a close so that Mr Assange can return home to his family in Australia”.

Albanese said his government had supported the motion “because it is the right thing to do.” He added that he had raised the Assange case “at the highest levels” with the US and UK with “a calibrated and deliberate approach” that included discussions with Assange’s lawyers. In that context, the parliamentary resolution was “important… it’s important to send that message.”

Quiet diplomacy

It’s one thing to express support for “bringing the matter to a close”; but what does that mean in practice? For Assange supporters, it means the US dropping the prosecution and Assange returning to Australia as a free man.

However, the Albanese Government’s understanding and expectations are likely rather different.

FOI inquiries by Rex Patrick over the past eighteen months have shown that the Albanese Government’s track record on the Assange case has been patchy at best. The government’s “quiet diplomacy” has been minimalist. FOI applications directed toward the Department of Foreign Affairs and Trade, including Australia’s Embassy in Washington,

have revealed little evidence of concerted diplomatic activity, indeed quite the contrary.

Documents show no sign Albanese government lobbied the US to bring Julian Assange home

This isn’t to say that Albanese hasn’t raised the Assange case at the “highest levels.” He undoubtedly has, but it’s likely involved mentioning it as a politically awkward problem rather than a push to secure Assange’s freedom.

In response Secretary of State Antony Blinken made it publicly clear the US Government was most reluctant to intervene in the Justice Department’s prosecutorial process – an issue of obvious political sensitivity given the criminal charges brought against former president Donald Trump.

FOI inquiries also unearthed briefings for Attorney-General Mark Dreyfus that revealed a clear Australian Government policy to limit direct engagement on the Assange case until after he has been extradited to the United States, put to trial, convicted, sentenced and exhausted all appeal rights. Only then could Assange apply under the International Transfer of Prisoners scheme to serve a sentence of imprisonment in Australia. Only then would the Attorney-General formally consider that possibility.

Jail, then jail, and more jail. Labor’s Assange strategy revealed.

That’s the position behind the Government’s careful words about bringing the matter to a close.

At no point has the Australian Government called publicly for the espionage charges to be dropped and the extradition process to be ended.

A plea deal?

Last month, the Wall Street Journal reported the US Justice Department has been considering a proposed plea deal with Assange, dropping the espionage charges and allowing him to admit to a misdemeanour concerning the mishandling of classified documents.

According to the Journal the Justice Department was exploring ways to end the long London court battle as Assange continues to fight against extradition. It isn’t clear whether the move for a plea deal has come from Justice or Assange’s legal team. In any case, Assange’s lawyers said they’d been “given no indication” of any change in the US position.

President Biden may have been referring to the question of a plea deal as much as any representations from the Australian Parliament.

A plea deal might well be under consideration, but it’s clearly not a done deal yet, and a radical reduction in the charges, with Assange walking free in London and his time in His Majesty’s Prison Belmarsh taken into account, sounds like a big ask.

That dog ain’t barking…

One thing’s clear, however, Albanese hasn’t followed up on the parliamentary resolution with any personal diplomatic push on the Assange case.

One might have thought that Albanese would have directly engaged President Biden or else directed new representations across the top levels of the US Administration.

If that were the case, one would expect Albanese’s own Department to be closely engaged, working with DFAT and the Australian Embassy in Washington. Albanese is a careful, process-driven prime minister, so one would expect there to be PM&C briefing papers and correspondence. If absolutely nothing else one would expect there to be a Parliamentary Question Time Brief.

With such expectations, on March 7, 2024, Rex Patrick submitted a new FOI application for access to “PM&C submissions, talking points or other documents provided to Prime Minister Albanese between 1 February 2024 and 29 February 2024 that refer or relate to Julian Assange”.

Yesterday, the same day as Albanese’s latest comments that his government was using “all of our diplomatic efforts at every level”, PM&C provided their FOI response.

Dave Titheridge, head of the Department’s Global Interests Branch, advised: “I am refusing your request for access … as the documents you have requested do not exist”.

PM&C conducted an extensive search, including through its email system, Parliamentary Document Management System and electronic records repository and turned up nothing.

Nothing happening here – either before or after the parliamentary resolution.

Zero, zip, zilch, nada.

What’s next?

So, where does this leave Assange? His appeal options in London are nearly at an end. Perhaps his lawyers will finally get lucky. Perhaps President Biden is “considering” his case. Perhaps there will be a plea deal.

But Assange may well be extradited and spend decades rotting in a US maximum security prison. He might die there. He could also eventually come home, but as a prisoner in shackles, not as a free man.

Whatever happens, however, it won’t be down to a big effort – or barking – from the Albanese Government.

This post was originally published on Michael West.

Government officials are using disappearing text messages to circumvent scrutiny, threatening transparency and risking democracy. Rex Patrick exposes a dangerous practice ignored by the PM.

In his dystopian novel 1984, George Orwell popularised the concept of the ‘memory hole’ of censorship and destruction, which enabled a totalitarian government’s ‘Ministry of Truth’ to erase embarrassing information and clear the slate for new propaganda.

In a time long before today’s electronic age, Orwell’s ‘memory hole’ was a chute leading to a hungry furnace, ready to incinerate the paper record of past decisions, events or indeed lives without a trace.

In today’s world, ‘memory holes’ are part of the very fabric of communications and record keeping. Electronic documents, emails, and text messages can all be deleted at the touch of a button.

From a Freedom of Information (FOI) perspective, deleting means just that – instant erasure. And with messaging apps such as WhatsApp, Signal, Wickr, and Microsoft Communicator, recovering deleted data is very difficult, if not impossible. In the case of Wickr, encrypted messages are automatically destroyed if both users are on the service – the memory hole is integral to the information system itself.

Avoiding scrutiny

It’s no surprise that these messaging apps are much favoured by politicians and their staff, who value secret communication and avoid scrutiny of their thinking and decisions.

Privacy is desirable for ordinary citizens and, indeed, for political activists. But when those people hold public office, such as ministers do, transparency and accountability must trump privacy.

If electronic messaging systems are used for the conduct of government business, then they fall within the scope of our Freedom of Information law and must be accessible and, unless some specific exemption applies, open to the public.

That is indeed the unequivocal ruling of the Office of the Australian Commissioner (OAIC) who has advised federal government agencies that “Text messages and social media such as instant messaging (IM) that support the business of an agency fall within the definition of ‘document’” as set out in the FOI Act. That also goes for Ministers and their staff.”

However, as a recently released Information Commissioner Senate Estimates brief says, that “does not mean that the use of WhatsApp and other apps is unproblematic from the perspective of FOI.”

If the FOI Act is to operate effectively, WhatsApp messages must be filed in such a way that they can readily be searched and retrieved.

Unfortunately, however, while a number of government reviews and agency inquiries have recognised the requirement to properly manage and retain messages on mobile devices, including via apps, little has been done to stop official communications from disappearing down the electronic ‘memory hole’.

The desire to keep many things off the record is a strong one within ministerial offices and, indeed, at the increasingly politicised top levels of the public service.

Convenience over transparency

With the convenience of electronic messaging and the security provided by encrypted systems such as WhatsApp and Signal, it’s no surprise that more and more government business is being transacted via these channels. This has led to a decline in the retention and accessibility of information about government decision-making.

The use of encrypted messaging apps by ministers and their political staff accelerated and, indeed, was encouraged during the former Coalition Government.

The convenience of instantaneous, hand-held communications is pretty much irresistible, and moving sensitive discussions outside more formal channels undoubtedly had its attractions for secrecy-obsessed Prime Minister Scott Morrison.

It certainly facilitated unaccountable, secret back channel communications such as those exposed in the subsequent downfall of former Home Affairs supremo Mike Pezzullo.

Effects on FOI

In a system that is already broken, the embracing of encrypted messaging apps has further affected transparency.

As the recently released OAIC briefing notes show, a growing number of Information Commissioner FOI reviews are encountering Wickr, WhatsApp and other social media in which “documents cannot be found or do not exist.”

And this is only for the FOI applications that have so far made their way through the OAIC’s massive case backlog. But the trend is plain.

Appeal for Transparency: Rex Patrick takes secrecy fight to the Full Federal Court

The Information Commissioner’s review decisions, mostly relating to the Ministers in the former Morrison Government, make sorry reading. Ministerial offices are unable or unwilling to retrieve messages, or else they advise that in the case of Wickr, the automatic deletion function had presumably destroyed any relevant messages, whether or not they had existed.

More and more information has thus been disappearing down the electronic ‘memory hole’.

Ministerial immunity

The Information Commissioner is empowered to investigate complaints and make recommendations for process improvements to support government agency compliance with the FOI Act.

That includes developing departmental guidelines and procedures for the efficient storage and retrieval of information held on mobile devices. However, the OAIC emphasises that this regulatory oversight and reform role does not extend to the operations of ministers or their offices.

Talking points prepared for the Information Commissioner flatly state:

“My power to investigate complaints about action taken under the FOI Act is in relation to agencies only; I have no power under Part VIIB of the FOI Act or s8 of the Australian Information Commissioner Act 2010 to investigate the actions of ministers.”

So Ministers and their political staff are left to their own devices – literally.

Mandatory document retention

However, there is another principle now established that overrides this ambiguity. In the recent FOI win in Patrick v Attorney-General (Cth) a judicial command was given to Ministers to preserve information so as not to stand in the way of an FOI applicant’s rights.

In the context of a case where documents did not make it from an outgoing minister’s office to an incoming minister’s office, Justice Charlesworth commented,

“I accept that there may be very strong political resistance to an outgoing Minister transferring documents forming the subject of a pending FOI request to a new incumbent, particularly on a change of Government.”

“This Court was told that it was common practice for documents not to be transferred. But the FOI Act is not concerned with party-political matters other than to the extent provided for in respect of documents correctly described as falling within certain exemptions.

“To the contrary, it is a regime devised to enlarge scrutiny of Government activities in accordance with its terms, including in cases where scrutiny is not wanted. If there be a common practice of the kind suggested to this Court in submissions, it is not one that is authorised or contemplated by the FOI Act, and it should stop.”

There is little difference between a document not transferred and a message not retained.

The judgement translates directly to disappearing messages, and it must stop.

Rex Patrick’s Federal Court win a victory for transparency and a loss for government secrecy

Transparency memory hole

Anthony Albanese came to office with a promise of greater transparency. We’re now well past halfway into the first term of his Government, and nothing has been done.

There still exists a culture of secrecy in government, aided by a completely under-resourced FOI machinery. In respect of disappearing messages, things are likely getting worse. According to recent press reports, the use of encrypted messaging apps is “rampant” among Labor ministerial staff, with the use of self-erasing messages common.

Given Labor’s much-trumpeted commitment to greater transparency and integrity in government, one might have hoped for some FOI reform action during the current parliament.

But one wouldn’t want to hold one’s breath. After all, the temptation to hit the delete button or just let a messaging app do that automatically is all too strong for politicians who are dealing with inconvenient truths.

Maybe Labor’s commitment to transparency is another one of those things that’s gone down the memory hole.

Albo’s Diary revealed: who’s influencing the PM?

This post was originally published on Michael West.

Defence boss turned weapons company director Mark Binskin led the ‘Keystone Cops’ task-force associated with Afghan war crimes cover-ups. The Albanese Government has now appointed him to “scrutinise” the Israeli Defence Force “investigation” into the killings of Australian aid worker Zomi Frankcom and her World Central Kitchen colleagues in Gaza last week. Former army officer Stuart McCarthy reports.

Renowned Australian investigative reporter Chris Masters often reminds his profession that “our job is to hold truth to power.” According to the ABC’s advertising pitch for Grace Tobin’s recent Four Corners’ piece Rules of Engagement, the documentary was intended to be “the full David McBride story for the first time.”

The lead-up ads included a grab from Tobin’s colleague Dan Oakes, who eight years ago asked McBride to provide him with the documents that became known as the Afghan Files, “its a much greyer and murkier and messier story than people appreciate,” said Oakes.

So grey, murky and messy is this story that even with hundreds of pages of classified documents, the resources of the ABC Investigations unit, eight years and a freshly minted OAM at his disposal, he’s only managed to tell half of it. But the story has now come full circle and its up to the independent media to do the real telling. Jobs, truth and power are certainly what the real story is about, but not in the same sense as that quote from Masters.

At the heart of it lies abuse of power, patronage and arse-covering at the highest levels of Defence and government, where the truth counted for nothing.

One of the central figures is Mark Binskin, who on Monday was appointed by the Albanese government to “scrutinise” the Israeli Defence Force “investigation” into their killings of Australian aid worker Zomi Frankcom and her World Central Kitchen colleagues in Gaza last week.

Over recent months, chair of the Royal Commission into Defence and Veteran Suicide Nick Kaldas has frequently referred to “a catastrophic leadership failure” in our own defence force, where the consequences have also been “a senseless loss of life.”

Military justice not that just

One of the Defence institutions under the spotlight at this Royal Commission is something called the military justice system. Two components of this system caught in the beam of that spotlight are the Australian Defence Force Investigative Service (ADFIS) and the Inspector General of the Australian Defence Force (IGADF).

ADFIS has similar investigative powers to a police force, although its jurisdiction is obviously limited to those in military uniform. They answer to the Vice Chief of the Defence Force (VCDF).

The role of the IGADF, which answers directly to the Chief of the Defence Force (CDF), is to “oversee the quality and fairness of Australia’s military justice system.” The Royal Commission has uncovered widespread abuses of administrative law as a proxy for criminal proceedings, while the IGADF was also grilled over serious oversight failures.

‘Keystone Cops’

ADFIS is widely regarded as the defence force”s Keystone Cops. This is a law enforcement agency so incompetent that of the 1,751 plausible cases of rape, sexual assault, cover-ups or other abuse acknowledged by the 2016 Defence Abuse Response Taskforce report, the total number of those taken to successful prosecution closely resembles a goose egg, These include cases where the alleged perpetrators were officers up to the rank of Colonel.

Over the years the media has occasionally exposed scandalous examples of catastrophic leadership failures involving the abuse of military justice. Among them was the so-called ‘Jedi Council’ sex scandal in 2013. An Army reservist boasted of his sexual exploits using the Defence email system, sharing non consensual images of his sexual partners to groups of email addresses, many of whom he didn’t even know. According to Robert Ovadia’s Walkley Award winning story,

Army chief David Morrison did nothing when alerted to the initial complaints, leaping into action only nine months later when the NSW Police became involved, then over-reacting, then scapegoating. A completely innocent Lieutenant Colonel was unfairly dismissed from the defence force, slandered by Morrison in his famous “standards you walk past” speech, traumatised to the point of suicide when Morrison was awarded  Australian of the Year. He was cleared of any wrongdoing five years later.

Canberra arse-covering

A decade into Australia’s military campaign in Afghanistan, this Canberra arse-covering and scapegoating mentality extended all the way to the Australian special forces deployed to the battlefields of Uruzgan and its neighbouring provinces.

Defence Minister Stephen Smith had already been publicly informed of apparent war crimes in 2012 by the president of Afghanistan, the rules of engagement had been tweaked to create a perception that the problems were fixed, and the generals were jostling for the Defence chief’s job on David Hurley’s impending retirement in 2014.

These included his vice chief Mark Binskin. The key to becoming Hurley’s successor was demonstrated performance as the minister’s Praetorian Guard, protecting him from a threat even more dangerous than a Taliban bomb maker – political scandal.

Enter David McBride

This was the minefield McBride landed in when he deployed to Uruzgan in 2013 as the Special Operations Task Group’s legal officer. As a lawyer, McBride’s main ethical obligation was to uphold the rule of law, including the rules of evidence, natural justice and due process. As a military lawyer specifically, someone with a post graduate Oxford degree in the laws of armed conflict, those professional obligations extended into the application of the laws of war and adherence to rules of engagement.

In April 2013, the SOTG conducted a raid targeting a senior insurgent commander in Zabul province. Four suspected insurgents were killed. Standard procedure after engagements like this was to gather forensic evidence from the deceased, including fingerprints.

This was a crucial part of the coalition forces’ efforts to counter the threat of improvised explosive devices including suicide bombs used to target schools and hospitals. ADFIS staff were attached to SOTG in order to assist with the forensics.

Because there wasn’t sufficient space on the helicopters returning the troops to Uruzgan, an SAS Corporal reportedly removed the right hands from two of the insurgents’ bodies using a surgical scalpel, taking the forensic evidence back to base for the forensics team. As awful as this incident may sound, given the operational imperative it was debatable whether the incident constituted a war crime. However, it was promptly reported up the chain of command. An ADFIS team was dispatched to Uruzgan to investigate, while initial reports were leaked to the ABC from Canberra.

Legally permissible to chop of hands?

One of the disputes that emerged during the investigation was a claim from an SAS soldier that one of the attached ADFIS forensic staff had advised him it would be legally permissible to remove a hand from a corpse if it was absolutely imperative to do so.

The investigation; conducted by ADFIS into an incident involving ADFIS, did not support that claim. The conduct of the ADFIS investigation, including the interviewing of witnesses and the gathering of evidence, was one of the complaints McBride raised back uo through the chain of command.

His concerns were vindicated. The federal police conducted a two-year criminal investigation and the soldier was cleared.

Team America

One thing that’s striking about Canberra’s “we didn’t know” and “rogue soldiers” narratives now is that even the first story on this incident filed by the ABC in May 2013 noted “the allegation of misconduct was raised through internal channels”.

Enlisted soldiers and junior officers including then Captain Andrew Hastie, now the Shadow Minister for Defence, did exactly the right thing. They reported the incident to their superiors. Where the chain of command actually broke down was in Canberra, a capital infested by a toxic culture of scapegoating the very soldiers they’d dispatched to a brutal war of insurgency. giving them the vague mission “support the U.S. alliance”.

Another striking thing is that nobody has ever been investigated, much less prosecuted, for the classified document leak that created the scandal in the first place.

Hurley dead-bat

The only reason the public knows anything about the severed hand incident among others, beyond those apparent political leaks to the ABC in 2013, is that the classified ADFIS investigation reports and related documents were included in the Afghan Files given to Oakes by McBride several years later.

The only reason we don’t know the full story is that the actual documents were never published by the ABC. Anyone who discloses them further would face the same criminal prosecution as McBride. The captured ABC’s version of events is protected by the national security apparatus, under the threat of secret trials then jail,

Nonetheless, so concerned was McBride about the legal consequences of botched ADFIS investigations and politicised rules of engagement, he complained to his chain of command, then to the IGADF, then to the federal police, then to Hurley.

David Hurley’s arms need a ruler: how the Governor-General’s favourite charity got “top of the pile” treatment

No action was taken. Eventually, he went to the media. When the media backgrounded the leaked documents to Defence, the generals needed a plausible deniability narrative. Hence came the Crompvoets “culture review” to uncover rumours of war crimes, then Brereton’s IGADF administrative inquiry which found no evidence of criminal culpability above the rank of Sergeant.

Brereton whitewash and Binskin

The use of administrative rather than criminal investigative procedures in the Brereton Inquiry tainted the evidence so badly that criminal proceedings against the worst of all the alleged perpetrators were abandoned by the Commonwealth Director of Public Prosecutions last year, after a five year federal police investigation.

Neither Smith nor Hurley were ever called to give evidence at the Brereton Inquiry. Nor was Binskin, the man in charge of the Keystone Cops, who also bungled their “investigations” so badly that dozens of potential war criminals and their victims may never receive justice. Binskin replaced Hurley as the CDF in 2014, then waltzed out the revolving door into the defence and aerospace industry in 2018.

Within hours of the “horrific and shameful” Brereton Report’s delivery to a packed Canberra media conference two years later, Smith told the ABC’s Linda Mottram:

“I was always confident in the run up to the report that there would be nothing that would indicate that either I or any of my ministerial colleagues of whatever political persuasion were ever alerted to anything which they should have taken any action on. [The report] makes it clear that the rumours started to emerge after the tempo had finished in about 2015-2016 …”

Albo dusts off Smith

After a nine year hiatus as an academic, Smith was brought back onto the public teat by Albanese in 2022 to co-author a defence strategic review paper heralded in April last year as “the missile age,” then was appointed Australian High Commissioner to the UK.

For McBride’s commitment to upholding the rule of law during this “horrific and shameful” war crime scandal, he was thrown under the bus by several of Australia’s leading “investigative journalists,” now faces the prospect of 50 years imprisonment as a “national security threat,” and has become the slander target-de-jour for an incestuous national press gallery intent only on currying favour for the next political leak from their true masters.

Had McBride not been check-mated into pleading guilty by an executive government intervention in his case last October, it’s plausible that Smith, Hurley and Binskin may have been subpoenaed to the ACT Supreme Court during the trial proceedings, giving evidence that may have freed McBride.

Yet even if those proceedings had taken place they would have been kept secret from the public under a clause of the National Security Information Act intended for the prosecution of terrorists and invoked by the Attorney-General. The same Attorney-General who has refused to exercise his ministerial power to drop the unjust prosecution.

Welcome to the Albanese Government’s new era of transparency and accountability, and good luck to anyone seeking justice for war crimes against Australian humanitarian aid workers or their colleagues in Gaza.

Propaganda Blitzkrieg: Israel followed Australia’s textbook on how to respond to war crimes allegations

This post was originally published on Michael West.

“The IDF three-day information operation had the same precision, tempo and effectiveness as the initial kinetic attack” of Australian aid worker Zomi Frankcom and her 6 World Central Kitchen colleagues, writes Stuart McCarthy, and it channels the ADF propaganda model in Afghanistan.

An old English saying “as ye sow, so shall ye reap” has its origins in the Hebrew Book of Hosea. The King James English Bible version of this tale says that when God found the Israelites worshipping a false idol, “They sow the wind, and they reap the whirlwind.” 

The Albanese government is now adrift in the whirlwind of Australia’s abject failure to hold its top generals to account for alleged war crimes in Afghanistan.

Last Monday night’s deadly Israeli Defence Force attack on Australian citizen Zomi Frankcom and her six World Central Kitchen colleagues in Gaza brought the total number of aid worker deaths in that conflict to more than 200.

Having complied with IDF deconfliction procedures and while travelling along a designated humanitarian aid route, the three clearly marked WCK vehicles were struck one after the other by precision guided missiles fired from an IDF drone named after Hermes, messenger of the gods.

israel has killed more aid workers in the tiny gaza strip than have died in all of the countries in the rest of the world combined in any of the last 30 years pic.twitter.com/v3IgprToYI

— Nathan J Robinson (@NathanJRobinson) April 3, 2024

Former International Criminal Court trial lawyer Regina Weiss told the ABC:

“What happened there was a war crime. Not only was it an intentional attack on civilians, but we can go further and say this was a war crime of intentionally using starvation as a method of warfare.”

The ensuing IDF three-day information operation achieved the same precision, tempo and effectiveness as the initial kinetic attack. On Tuesday IDF sources told Israeli newspaper Haaretz that the attack was launched because the unit responsible for securing the aid route “had identified an armed man on the truck and suspected that he was a terrorist.”

Senior IDF officers told the same paper later that day the killings occurred because “IDF officers on the ground do what they want.” On Wednesday, IDF Chief of the General Staff Lieutenant General Herzi Halevi released a video statement saying he had “completed a preliminary debrief” on the incident, apologised to the families of the deceased WCK aid workers “from the bottom of our hearts”, and announced an investigation by “an independent body”, its findings to be shared “with full transparency”.

The IDF Joint Chiefs of Staff Fact Finding and Assessment Mechanism (FFAM) report, by an IDF reserve Major General answerable directly to Halevi, was completed on Thursday.

Wong way

Taking out the trash on Friday, IDF Headquarters completed its war crime staff response drill by briefing international governments and selected journalists on the findings of the FFAM report. Three senior officers were reprimanded, two mid-ranking officers were dismissed from their positions and condolences were again offered to all those concerned.

An “unsatisfied” Foreign Affairs Minister Penny Wong was left rummaging through the scraps on the Sabbath, to announce she had “signalled our intention to appoint a Special Advisor to the Australian Government” on the completed IDF FFAM investigation.

With 96 hours of blitzkrieg information warfare, the Israelis surpassed a response to Afghan war crimes allegations that took their Australian counterparts almost a decade. What most Australians are yet to appreciate, however, is that the IDF’s key messaging was taken straight from the Australian textbook. As ye sow, so shall ye reap.

Everyone should watch this video. The killing of Zomi Frankcom and her WCK colleagues was no accident. pic.twitter.com/SBH0dPcK5K

— JON DEE (JonDee.com) (@JonDeeOz) April 2, 2024

On 31 August 2012, Haji Raz Mohammad and Abdul Jalil were allegedly dragged from their mosque and summarily executed at Sola, Afghanistan; by members of the Australian Special Operations Task Group.

When the President of Afghanistan complained to the Australian Government days later, Defence Minister Stephen Smith announced the civilians were “confirmed as insurgents.”

As details of these and similar killings by the same alleged perpetrator emerged in the media in the years that followed, Australian Army chief Lieutenant General Angus Campbell commissioned the “independent” Afghanistan Inquiry, conducted by Army Reserve Major General Paul Brereton “at arms length from the ADF chain of command.”

The Brereton Report found evidence of 39 murders of civilians or detainees, recommending 25 soldiers be referred for criminal investigation, with only one charge laid to this date. No evidence of criminal culpability was found above the rank of Sergeant. When the redacted report was published in 2020, now Chief of the Defence Force General Campbell said:

“To the people of Afghanistan … I sincerely and unreservedly apologise for any wrongdoing by Australian soldiers.”

The government’s refusal to initiate criminal proceedings against any senior ADF officer provided the basis for last year’s referral to the International Criminal Court.

For however long the Albanese government’s head remains stuck in the sand of command impunity from Australia’s war crimes in Afghanistan, its proverbial arse will remain exposed to the whirlwind of Israel’s impunity in Gaza. With heartfelt condolences, of course, from Tel Aviv.

Future Fund falls mute on financing Elbit weapons reportedly used to murder Gaza aid workers

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Postscript: Binskin was VCDF (responsible for ADFIS) during Act II of the ADF command responsibility failures in Afghanistan

This is absolutely hilarious. https://t.co/mrjZFfQkwt

— Stuart McCarthy (@StuartMcCarthy_) April 7, 2024

 

This post was originally published on Michael West.

Two decades after the Howard Government spied on Timor-Leste’s seabed boundary negotiating team, for oil company Woodside, the Albanese Government is still fighting against the truth coming out. Reporting on the biggest cover-up in Australia’s history, Rex Patrick explains why.

DFAT submissions found in the long-running FOI battle reveal how the commercial interests of Australian fossil fuel companies still take precedence.

In March 2002, three months before Timor-Leste (Timor) became an independent state, Australia’s then foreign minister, Alexander Downer, withdrew Australia from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. He did this to ensure there would be no umpire to go to when Australia rejected Timor’s claim for a maritime boundary halfway between the two countries.

On 20 September 2002, the Howard Government awarded an exploration contract for an area partly on Timor’s side of the median line. Timor protested.

In November 2002, Mr Downer warned Timor’s then Prime Minister Mari Alkatiri that Australia could hold up the flow of gas from the Timor Sea for decades. According to a transcript of the negotiating records, Downer said, “We don’t have to exploit the resources. They can stay there for 20, 40, 50 years.”

We are very tough. We will not care if you give information to the media. Let me give you a tutorial in politics – not a chance.

In December 2002, the Sunrise project partners, Woodside, ConocoPhillips, Shell and Osaka Gas, announced the indefinite delay of the project, an obvious tactic to pressure Timor to accept Mr Downer’s demands.

The Howard Government wanted to force Timor, one of the poorest countries in the world, to surrender to Australia most of the revenue from a number of Timor Sea oil and gas fields.

I spy with my greedy eyes

Despite Australia having agreed to negotiate in good faith with Timor, Downer ordered the Australian Secret Intelligence Service (ASIS) to bug Timor’s negotiators. ASIS installed listening devices inside Timor’s cabinet room under the cover of a foreign aid program, piling cynicism onto callousness.

In 2006, a sea boundary treaty, highly favourable to Australia, was signed by Timor.

Only after former ASIS officer Witness K and his lawyer, Bernard Collaery, blew the whistle did the Timorese understand that the Australian Government had engaged in a conspiracy to defraud them.

The Timorese spent the next decade trying to have the treaty declared invalid, with actions taken in the Permanent Court of Arbitration and the International Court of Justice. Almost a decade after the treaty was signed, Timor-Leste initiated compulsory conciliation proceedings against Australia. Despite Australia unsuccessfully challenging the jurisdiction of the Conciliation Commission, a new treaty was signed in 2018.

The will of Timor

Despite the signing of the new treaty, there’s been little progress over the extraction of oil and gas from Greater Sunrise.

Xanana Gusmao, a former independence fighter and heroic figure in Timor, has had a long-standing vision to establish, in association with the development of Greater Sunrise, an onshore petroleum industry on the South Coast.

His vision, known as “Tase Mane”, involves building a supply base, refinery, petrochemical industry, and LNG plant on the country’s southern plateau. As part of a 2011 Strategic Development Plan (written when Gusmao was Prime Minister), Tase Mane would be the catalyst for uplifting skills and economic activity across the country and providing long-term economic prosperity.

As part of the implementation plan for Tase Mane, in 2019, the Timor Government purchased ConocoPhillips’ 30% interest and Shell Australia’s 26.56% interest in the Greater Sunrise Fields, giving ‘Timor Gap’, the national oil company of Timor-Leste, a 56.6% interest in the fields.

The remaining stakeholders are Osaka Gas, at 10% and Woodside, at 33.4%.

Since the signing of the new treaty in 2018, progress on Tase Mane has been slow.

However, renewed impetus to move forward came with the inauguration of a new government in July 2023, headed by Prime Minister Gusmao on his second term in office. He’s pledged publicly he’ll reach a deal in 2024. Accordingly, technical negotiations involving Australia, Timor and the Sunrise Joint Venture partners have been building momentum.

The will of Woodside

There’s just one problem.

Woodside does not agree with the Tase Mane plans and wants Greater Sunrise gas to be processed at the existing Santos LNG plant in Darwin.

Whilst feigning support for the Timorese, with Foreign Minister Penny Wong telling Timor that Australia was “listening carefully to your interest and priorities”, the Albanese Government seems to be backing Woodside.

In 2019, wondering why things were not progressing, I requested under FOI all briefs the Department of Foreign Affairs and Trade (DFAT) had prepared for the Minister for Foreign Affairs in the financial years 2016/2017 through 2018/2019 that discussed oil/gas processing options for Greater Sunrise. I wanted to see if the Australian Government was still hell-bent on processing Timor’s gas back in Darwin.

At the time the Morrison Government refused me access to all documents. In 2022 DFAT revisited the decision and gave some documents to me; media talking points and material that was already available on the internet.

DFAT thwarts FOI ‘progress’

As my FOI has made it through the four-year wait it takes to get to the front of the Information Commissioner’s FOI queue, DFAT’s response to inquiries from the Commissioner has been extraordinary.

Normally, information grows less sensitive over time. But in new submissions made to the Commissioner, DFAT has claimed the opposite.

DFAT has advised the Commissioner that the 2022 revised decision will have to be revisited and that documents which then had an arguable public interest for disclosure

will now have to be bought under an exemption that does not allow public interest to be considered.

They argue that the documents are more sensitive because of “recent developments in Greater Sunrise, and particularly the fact that these negotiations are ongoing.”

DFAT argues that disclosure of the documents will undermine the Australian Government’s “ability to effectively co-operate and have open discussion with third party private enterprises, whose ongoing engagement is critical for the development of Greater Sunrise” and “prejudice the ability of Australian diplomats overseas to foster and maintain effective working relationships with foreign government officials which is a fundamental aspect of the Department’s functions.”

Such exquisite irony. On the twentieth anniversary of ASIS spying on the Timorese negotiating team,

DFAT has suddenly grown a conscience and an understanding of the need for confidentiality in negotiations.

Self-determination v embarrassment

We’d be the first to agree that, from a project management perspective, the processing of Greater Sunrise in Darwin would attract less project risk and be less expensive.

But that completely misses the point.

Timor, a close neighbour, wants to utilise their resources to uplift themselves and become economically independent.

They want to set up their future and we should be assisting them.

We haven’t been kind to Timor going all the way back to World War II when we landed on their shores without invitation, ultimately seeing between 40,000 and 70,000 Timorese killed by the Japanese during the war.

As we later sniffed around, finding oil and gas in their waters, we sought to rob them of it.

Our first approach was to encourage Indonesia to invade Timor in 1975 in the hope of extending the very favourable sea boundary we had with Indonesia across the Timor Gap, making the oil ours. When that didn’t work, we spied on the Timorese to ensure they got the worst possible oil and gas deal.

Rex Patrick on Timor spying: Albanese government’s first secret trial after only 67 days

The 2018 treaty was a reset opportunity that we don’t seem to have embraced. We owe nothing to Woodside and everything to a mistreated Timor-Leste.

Australia has to end the games, stop resisting Tase Mane, admit the bugging took place, stop the secrecy and, indeed, use the project as an opportunity to grow the relationship through technical and project management assistance to them.

Unfortunately, our foreign policy establishment won’t admit to generations of policy failure and commercially compromised diplomacy.

And for all their progressive pretensions, Prime Minister Albanese and Foreign Minister Wong are too craven, too timid, to challenge the DFAT orthodoxy. It seems beyond our leaders to be able to put political decency and our long-term national security ahead of Woodside’s wants.

 

Woodside and Santos super profits, energy bills still to shoot up. What’s the Scam?

 

This post was originally published on Michael West.

Should the government decide what news is appropriate and what is not for its people? “The sirens should be going off.” Binoy Kampmark on the Misinformation and Disinformation Bill.

The heralded arrival of the Internet caused flutters of enthusiasm, streaks of heart-felt hope. Unregulated, and supposedly all powerful, an information medium never before seen on such scale could be used to liberate mind and spirit. With almost disconcerting reliability, humankind would coddle and fawn over a technology which would as Langdon Winner writes, “bring universal wealth, enhanced freedom, revitalised politics, satisfying community, and personal fulfilment.”

Such high-street techno-utopianism was bound to have its day. The sceptics grumbled, the critiques flowed. Evgeny Morozov, in his relentlessly biting study The Net Delusion, warned of the misguided nature of the “excessive optimism and empty McKinsey-speak” of cyber-utopianism and the ostensibly democratising properties of the Internet. Governments, whatever their ideological mix, gave the same bark of suspicion. 

In Australia, we see the tech-utopians being butchered, metaphorically speaking, on our doorstep. Of concern here is the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2023. This nasty progeny arises from the 2019 Digital Platforms Inquiry conducted by the Australian Competition and Consumer Commission (ACCC). 

The final report notes how consumers accessing news placed on digital platforms “potentially risk exposure to unreliable news through ‘filter bubbles’ and the spread of disinformation, malinformation and misinformation (‘fake news’) online.”  And what of television? Radio? Community bulletin boards? The mind shrinks in anticipation.

In this state of knee-jerk control and paternal suspicion, the Commonwealth pressed digital platforms conducting business in Australia to develop a voluntary code of practice to address disinformation and the quality of news. 

ACMA empowered

The Australian Code of Practice on Disinformation and Misinformation was launched on February 22, 2021 by the Digital Industry Group Inc. Eight digital platforms adopted the code, including Google, Facebook, Microsoft, and Twitter. The acquiescence from the digital giants did little in terms of satisfying the wishes of the Morrison government. 

The Minister of Communications at the time, Paul Fletcher, duly announced that new laws would be drafted to arm the Australian Communications and Media Authority (ACMA) with the means “to combat online misinformation and disinformation.” He noted an ACMA report highlighting that “disinformation and misinformation are significant and ongoing issues.”

The resulting Bill proposes to make various functional amendments to the Broadcasting Services Act 1992 (Cth) as to the way digital platform services work. It also proposes to vest the ACMA with powers to target misinformation and disinformation. 

Digital platforms not in compliance with the directions of the ACMA risk facing hefty penalties, though the regulator will not have the power to request the removal of specific content from the digital platform services.

In its current form, the proposed instrument defines misinformation as “online content that is false, misleading or deceptive, that is shared or created without an intent to deceive but can cause and contribute to serious harm.” Disinformation is regarded as “misinformation that is intentionally disseminated with the intent to deceive or cause serious harm.”

Who decides what’s harmful?

Of concern regarding the Bill is the scope of the proposed ACMA powers regarding material it designates as “harmful online misinformation and disinformation”.  Digital platforms will be required to impose codes of conduct to enforce the interpretations made by the ACMA. The regulator can even “create and enforce an industry standard” (this standard is unworkably opaque, and again begs the question of how that can be defined) and register them. 

Those in breach will be liable for up to $7.8 million or 5% of global turnover for corporations. Individuals can be liable for fines up to $1.38 million.

A central notion in the proposal is that the information in question must be “reasonably likely […] to cause or contribute serious harm”. Examples of this hopelessly rubbery concept are provided in the Guidance Note to the Bill. These include hatred targeting a group based on ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability. 

It can also include disruption to public order or society. The example provided in the guidance suggests typical government paranoia about how the unruly, irascible populace might be incited: “Misinformation that encouraged or caused people to vandalise critical communications infrastructure.”

The proposed law will potentially enthrone the ACMA as an interventionist overseer of digital content. In doing so, it can decide what and which entity can be exempted from alleged misinformation practices. For instance, “excluded content for misinformation purposes” can be anything touching on entertainment, parody or satire, provided it is done in good faith. 

What is a ‘professional news provider’?

Professional news content is also excluded, but any number of news or critical sources may fall foul of the provisions, given the multiple, exacting codes the “news source” must abide by. The sense of that discretion is woefully wide.

chilling self-censorship it will inevitably bring about 

The submission from the Victorian Bar Association warns that “the Bill’s interference with the self-fulfilment of free expression will occur primarily by the chilling self-censorship it will inevitably bring about in the individual users of the relevant services (who may rationally wish to avoid any risk of being labelled a purveyor of misinformation or disinformation).” 

The VBA also wonders if such a bill is even warranted, given that the problem has been “effectively responded to by voluntary actions taken by the most important actors in this space.” 

Rage of the Right

Also critical, if less focused, is the stream of industrial rage coming from the Coalition benches and the corridors of Sky News. Shadow Communications Minister David Coleman called the draft “a very bad bill” giving the ACMA “extraordinary powers. It would lead to digital companies self-censoring the legitimately held views of Australians to avoid the risk of massive fines.” 

Sky News has even deigned to use the term “Orwellian”.

Misinformation, squawked Coleman, was defined so broadly as to potentially “capture many statements made by Australians in the context of political debate.”  Content from journalists “on their personal digital platforms” risked being removed as crudely mislabelled misinformation. This was fascinating, u-turning stuff, given the enthusiasm the Coalition had shown in 2022 for a similar muzzling of information. Once in opposition, the mind reverses, leaving the mind to breathe.

The proposed bill on assessing, parcelling and dictating information (mis-, dis-, mal-) is a nasty little experiment. When the state decides, through its agencies, to tell readers what is appropriate to read and what can be accessed, the sirens should be going off.  

Fake news or no news? The folly of the News Media Bargaining Code

This post was originally published on Michael West.

Meta’s declaration that Facebook will no longer pay (some) Australian publishers for their news content has again highlighted the folly of the News Media Bargaining Code. It’s a poor solution to the wrong problem, Kim Wingerei writes.

Facebook’s threat to jettison news puts the Government in a bind. If the Albanese Government decides to invoke the Code and force Facebook to the table, Meta may decide to do what it has already done in Canada and block news content on its platform. That will serve nobody, least of all smaller community outlets whose main mode of communicating with readers is a Facebook page.

And if the Government doesn’t, it emboldens Google when its agreements with media companies come up for renewal in a couple of years.

Another possible outcome is to revamp the Code or scrap it altogether and replace it with more effective regulation (a levy or a licensing regime, say), risking the loss of the revenue that Rupert Murdoch’s News Corp, Nine Entertainment, and the other legacy media presently enjoy. Hell has no fury like Murdoch, Nine Chairman Costello and Stokes out West missing out on their ill-gotten freebies. It is not a palliative prospect for Labor a year or so out from an election.

Although the mess is the making of the LNP Government, it is now for Communications Minister Michelle Rowland and Assistant Treasurer Stephen Jones to resolve.

Revenue redistribution

According to IBISWorld – a market analysis firm, the digital advertising market in Australia is estimated to be worth $15.3bn in 2024. Of that, Google’s share is $8.9B – 58.1%, and Facebook 2.7B – 17.6%. The rest battle over the 24.3% that’s left.

The Code was meant to help Australian media companies “level the power imbalance” between the social media and search behemoths and “support quality journalism.” The only thing it has achieved is redirecting around. 2.5% ($300M) of Facebook’s and Google’s advertising revenue to another global behemoth, News Corp, plus to Australia’s largest media companies and a few smaller ones.

And in the process, it has further reduced the tax paid in Australia by Meta and Google from very little to a mere pittance.

Google Australia pays pittance in tax, pays media moguls instead

It has also done very little to promote quality journalism. The ABC is the only recipient of this redistribution that has stated the money is used to employ more journalists. The money goes straight to revenue, can be spent on anything, and effectively subsidises a last-century industry.

Social media vs search engines

The Code treats all of the so-called Digital Media Platforms (DMPs) the same: Facebook, Twitter, and other social media on the one hand and Google, a search engine on the other.

The social media platforms are all based on users and content providers posting on their sites. Their algorithms are designed to maximise advertising revenue by serving up the ‘right’ posts to the ‘right’ users. The only interaction with the content providers is linking back to their sites. To their benefit.

But they are not the same.

Google, in contrast to Facebook, trawls every bit of content it finds, curates and rates it for its search engine and inserts ads to maximise its advertising revenue.

Both are useful services that consumers want. They offer their utility for free in return for users giving them their data, including their behaviours and preferences. Both are very good at what they do and demonstrably better at maximising their advertising revenue than ‘traditional’ media companies.

Yet, the Code does not differentiate between their very different functions.

Nor does the code do anything to address the real distortion of news and commentary dissemination of the platforms.

It does nothing to reduce misinformation, it doesn’t compel them to moderate or filter questionable content, such as fake news, hate speech and predatory exploitation of children and other vulnerable users.

It also does nothing to stop these companies from selling their data or stop that treasure trove of data from being used for surveillance or other nefarious purposes.

The Facebook conundrum

It is worth repeating that the Code was designed – following heavy-duty lobbying by Murdoch and Nine media – as a threat to ‘force’ Facebook and Google to negotiate, which they did. The Code’s key mechanism is to ‘declare’ a Digital Media Platform (DMP) and thus make such negotiations mandatory, with the Australian Communications and Media Authority (ACMA) having the power to appoint an arbitrator as a last resort. None of that has happened; the Code has remained a threat, but no DMP has yet been declared under the Code.

Such an outcome would trigger a visible, bureaucratic process, and open the claims up to other media – something neither the old media nor new media counterparties wanted. And it is a slippery slope; would Elon Musk’s X, or TikTok and Reddit be dragged in; and would all the platforms then come under pressure in other countries to pay?

Facebook owner Meta was a reluctant ‘participant’ when the Code was first introduced in 2021. It threatened to remove News altogether – and even did block news for a few days – but eventually caved in under pressure, doing deals that reportedly pay $70M annually to 13 media companies. The lion’s share of that money goes to News Corp, Nine Entertainment, Seven Media, the ABC and The Guardian.

Facebook pulls plug on ‘News Media Bargaining Code’ – what’s next?

At the time, Facebook did have a news pages section, which it has now abandoned. This is their argument for not paying for the news posts that news companies (and users) voluntarily place on the platform. Facebook claims this traffic is only 3% of its total content.

It has made it clear to the Government that if it were to force them to pay by declaring them under the Code, it would simply block all news content on its site. Or it might take the Government to court. That’d be ‘fun’, especially for the lawyers, having to fund an expensive lawsuit to protect Rupert Murdoch’s revenues.

The Canadian experience

The Canadian ‘Online News Act‘ was enacted in June 2023 and is quite similar in intent and scope to our News Media Bargaining Code. Both Google and Facebook initially rebelled against the act, threatening to withdraw news from their platforms. Google eventually relented and agreed to pay CAD100M ($112M) annually to a fund managed by the media industry.

Facebook stood by its threat and has blocked news on its platform in Canada.

The ban has been devastating for some. Not the major news outlets, though, but mainly for regional and niche news media companies. According to an article in Voice of America (VOA), a global independent news service, “small local news outlets that relied heavily on Facebook to attract audiences to their own websites say they are suffering”. Many claim to have lost significant chunks of their audience, including their print audience in some cases.

(It is worth noting that Canada is blessed by the absence of any Murdoch-run media companies.)

And it’s not just news coverage that has suffered. “One of the most immediate impacts of the Facebook ban came during record wildfires that raged across much of Canada last summer, just weeks after the Facebook action commenced.”

Residents found themselves unable to turn to the social media platform for the latest news on the spread of the fires and potential rescue efforts.

Google-power

Google – less reluctantly – entered into agreements with 12 out of the same 13 media companies that Facebook did a deal with, plus another 14 smaller and niche-oriented publishers. The annual value of these payments is believed to be between $150 to $250 million a year. The agreements are all confidential. (For the record, MWM decided not to put our hands out for Google or Facebook money.)

Google also played its hand quite cleverly by shuffling the news content it pays for into its ‘News Showcase’, an area that few people visit. It’s 0.4% of their global traffic in February 2024, according to SimilarWeb – a web analytics company. It doesn’t impact their algorithms and, thus, not their advertising revenue.

However, another oft-forgotten reason Google decided to ‘play ball’ is fear of having to divulge some of its innermost secrets.

Section 52S of the Code has a provision for Google to announce changes to its algorithm with fair warning to the media companies.

Even if ‘declared’, Google will no doubt resist that at all costs. The global repercussions of having to reveal some of its innermost secrets may well be too much for the executives in California to contemplate.

Zuck’s Cuck – Facebook v News Corp

Other solutions

Australian media regulations have not been fit for purpose for a very long time – if they ever were. Almost thirty years after the internet changed how news is distributed, found, and consumed, our laws have barely changed. As a result, we have some of the most concentrated traditional media ownership in the ‘free’ world while having no control over how ‘new media’ operates.

One somewhat piecemeal solution to the current quandary is to add a ‘must-carry’ provision to the Code. Will Hayward, CEO of Private Media, suggests that if Facebook does block news content, the Code could be updated to force them (and the other platforms) to carry news.

However, that still begs the question of why Facebook should pay for content placed on its platform by users and news companies. It also doesn’t solve the fundamental problem of the Code, a piece of legislation designed as a flimsy hammer with scant regard for the size of the nail or where it goes.

Another solution floated is to make the global behemoths pay a levy and use the proceeds to subsidise and facilitate media diversity. But if so, what determines who pays the levy? How much should Peter pay Paul, and why should Rupert not pay?

Licensing is another option. To broadcast TV and radio in Australia, you need a license. With that license comes responsibilities and accountability.

Why not consider a licensing regime for social media platforms, search engines and all the other different means of distributing content to users not yet invented?

A license should be freely granted to those who comply and pay a license fee – as well as tax on all profit earned in Australia. It would also enable legislation that compelled the licensees to manage and control their content based on criteria set by the Government, not by people in Menlo Park or Mountainview, California.

Moreover, it is not the Government’s role to pick winners but to facilitate a controlled marketplace that benefits as many of us as possible.

Picking winners and losers?

Online media companies – including this masthead – benefit immensely from both Facebook and Google. Relevant quality content does ‘score’ better in search results, a point often conveniently ignored by those sharing the current spoils from Google and Facebook.

However, the global DMPs have immense sway over what content Australians share, read and don’t read; and an oligopoly level of dominance over online advertising revenue.

What about the other global social media platforms such as Telegram, WeChat, TikTok, Twitter, and – God forbid – Donald Trump’s Truth Social which may well come to Australia soon (and just announced a loss of more than $US58m on just $US4m million in revenue for 2023)? And let’s not forget that freedom fighter darling Reddit is now a public company and will soon have to find ways to monetise its 450 million users. And what about YouTube? And, and, and…

Google is also not the only search engine. It may enjoy over 90% share of search traffic overall, but Yahoo and Bing keep toiling away, as does nerd favourite and ad-free DuckDuckGo. In Russia, Yandex is much bigger than Google, with a 71% share, and Baidu dominates in China. Google will not dominate forever, and we are just seeing the very early days of the AI revolution.

The News Media Bargaining Code is a very poor solution whose singular effect was to squeeze some dollars out of a few companies to the benefit of (mostly) Australian mainstream media companies.

This post was originally published on Michael West.

The holocaust in Gaza has eclipsed the long-standing genocide of the Rohingya people of Myanmar, 569 of whom died at sea last year alone. Farah Abdurahman reports on the humanitarian disaster and the response of the Australian government.

More than seven years on from the genocide committed against the Rohingya by Myanmar’s military, the group is no closer to peace or freedom. 

A shortage of food and essential resources has forced many who sought refuge in the world’s largest refugee camp to flee the fishing city of Cox’s Bazaar in Bangladesh, where more than 1 million Rohingya are living in squalor.

In recent months, at least 2000 refugees fled to the ASEAN region in unsafe conditions, with an Australian bound boat carrying 151 passengers capsizing earlier this month, causing more than half of the passengers, mostly women and children, to drown. 

In 2023 alone, 569 Rohingya drowned at sea.

Within Myanmar’s Rakhine State, a new wave of killing by the Myanmar Military and crossfire by the Arakan Army has left countless Rohingya dead as their villages become fierce battle grounds between the junta and rebel forces. 

While Australian government officials claims to condemn the atrocities and ongoing discrimination against the Rohingya, foreign policy has done little to reflect the rhetoric.

Since 2017, Australia has granted only 470 special humanitarian visas to Rohingya refugees.

A brutal history

Although native to Myanmar, the Rohingya are a Muslim minority group from the Rakhine State who have been subjected to decades of state repression and ethnic cleansing which culminated in the 2017 genocide. 

Since August 2017, at least 24,000 Rohingya have been killed by Myanmar’s state forces, according to a report titled “Forced Migration of Rohingya: The Untold Experience” by the Ontario International Development Agency.

The report stated that more than 34,000 Rohingya were thrown into fires, while over 114,000 others were beaten and as many as 18,000 Rohingya women and girls were raped by Myanmar’s army and police. 

More than 115,000 Rohingya homes burned down while another 113,000 others were vandalised.

At least 1 million Rohingya continue to reside in the Cox’s Bazaar in Bangladesh, while a further 600,000 Rohingya who remained in Rakhine State, and close to 2 million Myanmar civilians, are estimated to be internally displaced.

Junta v Aung San Suu Kyi

Although the 2017 genocide was internationally defended by the democratically elected leader Aung San Suu Kyi, the same generals who committed the atrocities against the Rohingya staged a coup in 2021 to overthrow and imprison her. 

The junta also detained or exiled all of Myanmar’s elected civilian leaders. 

Demonstrations in protest were met by a campaign of mass killings, torture, arbitrary arrests, and indiscriminate attacks that amount to crimes against humanity.

Although various international communities including Australia imposed sanctions on Myanmar, and Gambia referred Myanmar to the International Court of Justice for Genocide, no one has yet been held accountable for the crimes committed against the Rohingya.

Apartheid and persecution

NSW Young Woman of the Year and Co-founder of the Australian Rohingya Maìyafuìnor Collaborative Network, Noor Azizah, told MWM the Rohingya who remain in Rakhine State face systematic abuses that amount to apartheid, persecution, and deprivation of liberty.

“The subsequent surge of violence that has raged since the civil war began in 2021 is part of a systematic endeavour towards the genocide and ethnic cleansing of the remaining Muslim population in Myanmar,” she said. 

“Access to information for the Rohingya is severely restricted due to internet shutdowns and bans on phones and mobiles. Families face grave risks, being warned that venturing outside their homes to procure essential supplies like grain or food could result in fatal consequences.

“Those who fled to bordering countries are confined to camps and villages without freedom of movement, cut off from access to adequate food, health care, education and livelihood, and are effectively denied citizenship rendering them stateless.”

Defection and conscription

Growing numbers of defectors and loss of morale has weakened the Myanmar military junta resulting in conscription. 

Thousands of young men of military age are now fleeing Myanmar to avoid forced military service. 

Human Rights Activist Maung Hla Myint who remains displaced in Cox’s Bazaar said despite their non-combatant status, the Rohingya in Rakhine State find themselves intentionally targeted.

“The Rohingya are enduring a renewed wave of genocide,” said Myint.

“We are calling upon the international community to establish an immediate and robust international safe zone for the Rohingya in Arakan and to support those remaining in Cox’s Bazar a passage for repatriation so we may return home.”

Myint said many individuals have been permanently disabled as a result of the ongoing violence and lack access to adequate health care for treatment.

He said those who speak out against the junta are targeted, and refusing to join the army leads to arrest and violence. “Those who flee by boat are often drowning or are being sent away by the receiving counties.

“Since the coup, security forces have arrested an estimated 2,000 Rohingya, hundreds of them children, for “unauthorised travel.

“This senseless war has exacted a devastating toll, resulting in the tragic loss of Rohingya lives, the destruction of villages, the incineration of homes, and the forced mass displacement of Rohingya from their homeland.”

Australia’s role in the Route to Repatriation

The Rohingya in Cox’s Bazar confront a daunting challenge in returning home amid ongoing persecution by Myanmar’s military junta. Ms Azizah said repatriation hinges on a stable political climate in Myanmar, ensuring Rohingya rights, and ending the violence against them.

“Achieving repatriation requires concerted efforts involving Myanmar, the global community, humanitarian agencies, and civil society to address root causes and safeguard Rohingya rights as native citizens,” said Noor Azizah.

“Post-repatriation support, including healthcare, education and livelihood opportunities is vital for successful reintegration, and to address the psychological impact of displacement.” 

A spokesperson for the Department of Foreign Affairs and Trade said Australia recognised Rohingyas’ right of return and continued to advocate for this in international forums and with the regime in Myanmar

“Australia condemns in the strongest terms the atrocities committed in Myanmar”. 

“Australia has urged Myanmar to create conditions conducive to return, including through the cessation of violence and ensuring safe and unimpeded humanitarian access.”

“Australia has committed to provide $235 million from 2023 to 2025 to meet the needs of Rohingya refugees in Bangladesh and their host communities, and for broader humanitarian assistance in Myanmar. This builds on $625 million provided since 2017.”

But thus far Australia still refuses to increase the number of humanitarian visas it grants to Rohingya refugees with the number sitting steady at 470.

Corporate sanctions

Australia last month imposed additional targeted sanctions on five entities with direct links to the Myanmar military regime.

This includes two banks that enable the regime’s activities – Myanma Foreign Trade Bank and Myanma Investment and Commercial Bank, and three entities that supply jet fuel to the Myanmar military, Asia Sun Group, Asia Sun Trading Co Ltd, and Cargo Link Petroleum Logistics Co Ltd.

In February 2023 sanctions were placed on 16 military regime members of the State Administration Council and two Myanmar military-controlled entities; and in 2018 against five members of the Myanmar military linked to atrocities in Rakhine. 

Australia also maintains a longstanding arms embargo on Myanmar. The sanctions imposed on Myanmar are in stark contrast to Australia’s position on Israel who was found by the International Court of Justice to be at plausible risk of committing genocide. 

The Myanmar genocide case remains before the International Court of Justice. 

Client State: Australia the “51st state of the US” for deadly weapons production

This post was originally published on Michael West.

Tensions between the US and Israel escalated overnight when the US abstained from voting for an immediate ceasefire resolution to stop the atrocities in Gaza. Farah Abdurahman reports.

The United Nations Security Council voted overnight for a ceasefire in Gaza. The resolution has come up three times previously since Israel started its war on Gaza, each time voted down by the US who, as one of the five permanent members of the UN Security Council, holds veto power.

This time however, the United States abstained from voting, allowing the resolution, which was proposed by 10 elected members and supported by 14 nations, to be passed in a round of applause by council members.

Once a resolution is passed, it becomes international law. Israeli Prime Minister Benjamin Netanyahu however rejected the ceasefire in a statement calling the US abstention “a clear threat from the consistent position of the US”.

In a show of protest, Netanyahu also cancelled an Israeli delegation to the US. 

US still bankrolling Israel’s onslaught

In response to Israeli criticism regarding the ceasefire, White House spokesman John Kirby said the US still supports Israel and is continuing to provide weapons systems and other capabilities for the country to defend itself.

In addition to financial and military aid, the United States also provides large-scale political support to Israel, having used its UN Security Council veto power 42 times against resolutions condemning Israel, out of a total 83 times in which its veto has ever been used.

In addition to an immediate ceasefire to extend for the duration of Ramadan, which thus far has not been upheld, the resolution calls for the release of all remaining 143 Israeli captives held by Hamas in the strip. 

It was a deal which the political arm of Hamas publicly welcomed stating they were ready to engage in an immediate swap of captives on both sides.

Israel’s Occupied Forces have taken thousands of Gazan men, women and children hostage over the course of recent months. They also dug up graveyards across the Gaza Strip and removed the bodies of Palestinians from their final resting places. 

There are also thousands of Palestinians held under administrative detention with no charges in the West Bank, many of whom are children and women. 

Footage along with witness accounts and victim testimony have revealed the extent of torture and humiliation to which the Palestinian hostages are subjected,  including being stripped, starved, beaten and raped. 

In the hours immediately after the ceasefire resolution was passed, civilians reported that Israel enacted another attack on Palestinians waiting for food aid in what has been labelled  the “Flour Massacres”.

More recent victim accounts from released Palestinian hostages detail the use of dogs to either attack Palestinians in areas under siege, as was the case at the Al-Shifa Hospital which was bombarded for the second time in recent months, or of dogs made to defecate on Palestinian hostages taken captive. 

Western media complicit in war crimes

In light of the failure of western media to report the atrocities, Dr Aliya Khan, Clinical Professor of Medicine at McMaster University in Canada and member of the Union of Medical Care and Relief Organisations, took to social media to detail the reports she has received from her colleagues who are volunteering at hospitals in Gaza.

“I’m receiving reports from my colleagues who are on the ground now and I just received a report that Al Kheir Hospital, which is next to Nasser Hospital has been attacked and the paramedics there informed the physician that a woman was raped for two days until she lost her ability to speak,” Dr Khan said.

“Women are being raped and this is not being publicised. No one is speaking about this in the western media. Political leaders are not talking about this.

“Another woman at the Nasser Hospital was stripped of her clothing in front of her husband and brother. When one of them took their clothes off to cover her, the Israeli soldiers killed both the brother and the husband. 

“We have the International Court of Justice saying that there is a plausible genocide happening and we have asked Israel and the United States to stop these attacks immediately but there has been a complete blind eye. A complete disregard of the words of the International Court of Justice.

“Not only are women being raped, children are being bombed to bits and pregnant women are being mowed over by bulldozers. These are unbelievable, horrific crimes, war crimes.”

Netanyahu intent on Rafah attack

Prime Minister Netanyahu has renewed his intentions to enter Rafah, a small parcel of land on the Egyptian border that Palestinians from across the strip were sent to as it was declared a safe zone.

Rafah has been under constant bombardment for months now despite the one million civilians taking refuge there. Israel intends a full-scale invasion into the densely populated civilian area with the invasion plan due to be presented to the US during the now cancelled delegation.

In response John Kirby said the withdrawal of the Israeli delegation was disappointing but also called for Israel to exercise restraint. 

“We don’t believe that a major ground operation in Rafah is the right course of action, particularly when you have a million and a half people there seeking refuge, and no conceived plan, no verifiable plan to take care of them,” Kirby said.

“We’ve been very consistent on that.”

UN Secretary-General Antonio Guterres said the long-awaited resolution must be implemented and that failure to do so would be “unforgivable.” 

On October 7, 2023, over a thousand Hamas gunmen launched attacks into Israeli army bases and neighbourhoods. @AJIunit investigated what really happened.

WATCH NOW https://t.co/HugkJ2CQoo pic.twitter.com/1Dpi240ja0

— Al Jazeera Investigations (@AJIunit) March 20, 2024

This post was originally published on Michael West.

Does a change to a new Minister kill an ongoing FOI to the old Minister? Can a replaced Minister’s dirt be swept under the carpet? The Information Commissioner and Attorney General Mark Dreyfus said ‘yes’. Rex Patrick said no, and today the Federal Court said ‘no’ too.

When the Auditor-General finalised his highly critical audit report into the Community Sports Infrastructure Grants Program on 15 January 2020, it generated a huge ‘Sports Rorts’ controversy that quickly began to damage the political prospects of Prime Minister Scott Morrison’s Coalition government.

Morrison instigated damage control. The Prime Minister asked Attorney-General Christian Porter to prepare advice on whether the former Sports Minister, Senator Bridget McKenzie, had acted lawfully in overriding Sports Australia’s grant recipient choices in preference to grant recipients located in seats the Liberal Party were targeting in an upcoming election.

Porter provided Morrison with his ‘Letter of Advice’ on 31 January 2020.  Morrison immediately grabbed onto this political lifeline, referring to the Attorney-General’s advice at a press conference on 02 February 2020, claiming that it supported the view that Sports Minister McKenzie did have legal authority to override Sports Australia.

A Perfect Slime: Scott Morrison’s slippery Sports Rorts report just the fix for Bridget McKenzie

FOI request

In March 2020, I made an FOI request for access to Porter’s Letter of Advice. Porter’s office refused to release it to me, and of course, I appealed the decision to the Information Commissioner.

When Senator Cash became the Attorney-General, in the wake of a rape allegation scandal (Christian Porter forcefully denied the allegation), the letter mysteriously went missing (even though it was claimed to be a Cabinet document), and the Information Commission ended the review in early 2023 on the basis that Cash’s successor, Mark Dreyfus KC MP, was not in possession of the Letter of Advice.

Federal Court appeal

I took a pretty dim view of the Information Commissioner’s decision.  In practice it meant that governments could sweep all manner of dirt under the carpet, evading FOI scrutiny, whenever a Minister leaves a portfolio.  I knew that couldn’t be right under the law.  I appealed it to the Federal Court.

Given that the Attorney General was the respondent in the appeal, I was hoping he would simply concede that the decision was wrong and that the Information Commissioner review be continued. He didn’t.

But Dreyfus decided otherwise and chose to fight tooth a nail to defend the proposition that changing ministers should allow governments to wipe the FOI slate clean. It’s a decision that reflects poorly on the Attorney-General and has caused a hit on the taxpayer in the vicinity of $300,000 in legal fees.

In the judgement handed down in Federal Court today, Justice Charlesworth said whether a document is an official document of a minister is to be assessed by reference to the facts and circumstances in existence at the time an FOI request is lodged, not some later review date after which the minister may have changed.

Further, Her Honour determined that there is an implied obligation under the FOI Act, imposed on those who receive an FOI request from any member of the public, to take such steps as are necessary not to frustrate access to a document or the applicant’s rights of review and appeal.

The dog ate my cabinet paper (or did it?)

As mentioned above, neither Senator Cash nor Mark Dreyfus could find the document that I had originally requested. That was a pretty strange situation given the document I was after was claimed to be a cabinet document and thus subject to rigorous control, custody and audit arrangements. How can the Government lose a cabinet document?

One of the interesting outcomes of this whole saga was that after the appeal was lodged in the Federal Court a proper look was had and the document was magically found. So, my appeal is not in vain.

The matter has now been remitted back to the Information Commissioner to determine my FOI review request in accordance with the law. With the document found, I will now continue his fight to get access to the documents. I have some confidence I’ll get it released so the public can see just what Prime Minister Morrison relied on when he claimed ‘sports rorts’ were all ok.

Whilst the matter is now one of history, Australians are entitled to the truth. We might also learn something that will assist in avoiding future political rorting of taxpayers’ money.

Information Commissioner failings

I can’t conclude this article without directing some criticism at the Information Commissioner.

In my submissions to the Information Commissioner, I argued exactly the points argued by Stephen McDonald SC, who represented me in the Federal Court Appeal. I concede McDonald argued it with greater eloquence and authority, but none the less, the Information Commissioner completely ignored my pleadings. McDonald did not use bold print or shout in his argument before Justice Charlesworth as I did, but our argument was essentially the same.

In a decision she made in February last year, a whooping two and half years after I asked her to fix the scam, she failed to address my emboldened legal points. She preferred to stick to previous flawed decisions and her own FOI guidelines based on those previous decisions, where my arguments had not been considered.

Justice Charlesworth had some advice for her. “Finally, I should confirm that to the extent that the Commissioner’s decision was based in part on the content of the [FOI] guidelines issued under or for the purpose of the FOI Act,”

those guidelines should not be followed to the extent that they are not consistent with the FOI Act on its proper construction.

No more secrecy for departing ministers

Most importantly, the Federal Court’s decision means governments, Labor or Coalition, can no longer sweep a departing minister’s dirt underneath the carpet. It’s a win for all Australians who want to see greater transparency and accountability restored to our political system.

As Jacinta Lewin, a Principal Lawyer at Maurice Blackburn Lawyers, put it, “This case is a win for democracy and open government. This decision makes it clear that a change in the minister’s portfolio cannot be used to stifle transparency and accountability. It closes a loophole in the law – access to information cannot be scuttled by a change in jobs. The decision returns some integrity to the FOI scheme.

A screen that encouraged secrecy and reduced government accountability has been lifted.

Dreyfus appeal?

There is some possibility that Dreyfus might appeal the decision to the Full Federal Court to maintain the secrecy blanket that has until now, shrouded the work, good or bad, carried out by past departing ministers.

Politics could come into play, but then he would be ignoring the very clear judicial pronouncement made in the decision handed down today.

The balance between maintenance of secrecy and public access is one that is struck by the Parliament. It is legislation, not political or administrative conventions, that is determinative of Mr Patrick’s rights in the present case.

It’s the rule of law that must prevail, not political expediency or convenience.

Sports rorts – the affair that just keeps on giving

 

This post was originally published on Michael West.

Australia is about to intervene in a legal case of global significance relating to the obligations of countries to protect the earth’s climate system. With Australia charging ahead with fossil fuel exports, Philip Dorling and Rex Patrick look at Attorney-General Mark Dreyfus’s forthcoming contribution to global climate (in)action.

An Advisory Opinion

A year ago, on March 23, 2023, the United Nations General Assembly adopted a resolution that requested the International Court of Justice (ICJ) to give an advisory opinion on the obligations of states to protect the global climate system from greenhouse gas emissions.  

The ICJ was asked to answer two questions on 1) the legal obligations of states to protect the global climate system and environment and 2) on the legal consequences when they have caused significant harm.  

It was a rare moment of international unanimity and a triumph of environmental activism. 

The resolution was adopted after a lengthy campaign initiated by university students in Vanuatu, a group now known as the Pacific Islands Students Fighting Climate Change. Greenpeace, the Climate Change Network, Amnesty International and NGOs joined the campaign and the Government of Vanuatu was persuaded to present a draft UN resolution and enlist other states to cosponsor it.  

In the words of Greenpeace, the purpose of the campaign was “to get the highest court in the world … to give a determination on what duties countries have to protect human rights of current and future generations from the climate crisis; and what should happen under international; law when countries breach these legal duties.  Wealthy nations, such as Australia, may become legally obliged to keep future generations safe from climate disaster.”  

An ICJ advisory opinion isn’t binding on governments, but it’s likely to influence future climate change negotiations and could be cited as a persuasive precedent in legal proceedings around the world.  

As Greenpeace argues, an ICJ opinion has the potential to “arm every lawyer around the world with a new sword to fight climate change by holding governments and big corporate polluters to account.”

March 22 is the deadline for governments to make submissions to the “Climate Change case”. At the moment Australia’s carefully drafted submission is secret.  

Pacific solidarity

Primary responsibility within the Albanese Government for handling ICJ matters rests with Attorney-General Mark Dreyfus, supported by his Department’s Office of International Law. Foreign Minister Penny Wong and Climate Change and Energy Minister Chris Bowen, together with their respective departments, are also interested in the climate change advisory opinion.  

The Office of International Law first briefed Dreyfus’s office on Vanuatu’s campaign for an ICJ advisory opinion in July 2022. A few months later they pointed out that if the Court were asked for an opinion “Australia will need to decide whether to intervene in the proceedings. This would be a matter for the Attorney-General, noting his responsibility for international litigation, in consultation with other relevant ministers”.  

Diplomatic considerations shaped the Labor Government’s initial response to Vanuatu’s initiative. 

Foreign Minister Wong was working to strengthen Australia’s ties with the South Pacific countries, seeking to counter growing Chinese activity and influence in a region traditionally regarded as ‘Australia’s backyard’.

This required a fulsome embrace of Pacific Island countries’ concerns about climate change and the growing risks of sea level rise and catastrophic weather events. In July 2022 Prime Minister Albanese joined other Pacific Island Forum (PIF) leaders in supporting Vanuatu’s campaign to get an ICJ opinion. Australia’s diplomats updated their talking points to declare “We commend Vanuatu’s leadership on this issue.” 

On 8 September 2022 Albanese reaffirmed Australia’s support to Vanuatu’s Prime Minister Bob Loughman.  In February 2023, PIF leaders including Albanese formally endorsed Vanuatu’s draft General Assembly resolution. Australia agreed to be a co-sponsor.

When the resolution was adopted by the General Assembly a month later, Australia’s national statement proclaimed solidarity with Pacific Island countries: “Climate change is an urgent global challenge and the single greatest threat to the livelihoods, security and wellbeing of the Pacific. That is why it is so important that Pacific voices are at the centre of international climate discussions.”

Dreyfus gets drafting

The ICJ has moved slowly on the Climate Change case and the deadline for written submissions has been extended. 

Some delay was expected; as the Office of International Law told Dreyfus back in January 2023, “The Court currently has an unprecedented caseload and Vanuatu’s resolution does not currently request an urgent opinion”. Moreover in recent months the ICJ has been focussed on other high profile matters, notably South Africa’s action concerning application of the Genocide Convention to Israel’s actions in the Gaza Strip.

So, the Australian Government has had plenty of time to determine its position and the Attorney-General’s Department has confirmed to MWM that they have prepared a submission for lodgement by the ICJ’s deadline next Friday.

The work has been largely done in-house, though it looks like some external advice has been obtained. Sydney-based barrister and international lawyer Callista Harris has picked up a $50,000 retainer to advise the Office of International Law on “climate change advisory opinions”.  

The Attorney-General’s Department says the Government “looks forward to engaging constructively through all stages of the ICJ advisory opinion.”  

However for the moment Australia’s submission remains secret. The Attorney-General’s Department doesn’t plan to take the initiative in releasing it, telling MWM that it will leave it to the ICJ’s “usual practice” of publishing submissions sometime after lodgement.

This is not about compensation

Although everything’s been kept under a tight lid so far, Attorney-General’s Department briefings and emails released under FOI provide some insight into the Government’s private concerns about the ICJ proceedings.

Media talking points prepared after the General Assembly’s resolution highlighted Australia’s support for our “Pacific family”, but quickly moved diminish the potential significance of an ICJ advisory opinion and defend Australia’s energy export industries.  

It’s clear the Albanese Government has strong concerns about the questions relating to compensation and impacts on Australian energy exports. Possible media questions listed in the Attorney-General’s briefing pack include “Won’t Australia end up having to pay compensation to Pacific Island countries as a result of this advisory opinion?” and “What are the potential implications of an adverse ICJ advisory opinion on Australia’s resources and heavy industry sectors?”  

The reference to an ‘adverse’ ICJ opinion is telling and the Department’s proposed responses are blunt and designed to downplay potential implications.

“This is not about compensation”, the talking points say. “Advisory opinions are not legally binding and are designed to contribute to the clarification and development of international law, [and] not to resolve specific disputes or enforce remedies between States.” 

The Department’s briefing also reveals Australia’s support for Vanuatu’s initiative was far from altruistic, noting that the General Assembly would have requested an advisory opinion “whether or not Australia co-sponsored the resolution”. Australia’s support was primarily designed to “put us in a better position to advocate for Australian interests”.  

Australia’s involvement with the ICJ climate change case is intended to serve both the needs of the Government’s Pacific diplomacy and support Australia’s energy and resources interests, including “working with our traditional energy export partners”, such as Japan.  

MWM has previously reported on the international drivers of Australia’s energy and climate change policies. So, it won’t be too surprising to find that the Government’s international legal strategy isn’t entirely in sync with its climate action rhetoric.

Climate Betrayal: how backroom deals with Japan locked Australia in for decades of gas

Keeping things narrow

Although Dreyfus’s submission is under wraps, an indication of its likely approach can be found in Australia’s little noticed submission in a parallel legal proceeding at the International Tribunal for the Law of the Sea.  

The Commission of Small Island States on Climate Change and International Law has asked the Tribunal for an advisory opinion on the obligations of states under the United Nations Convention on the Law of the Sea (UNCLOS) to protect the marine environment from damage caused by greenhouse gas generated climate change. The questions posed are narrower than those before the ICJ, but have allowed the Australian Government to rehearse its arguments before the main event.  

Australia’s submission to the Tribunal contains political “preliminary remarks” that assert Australia’s commitment to climate action and acknowledge the “longstanding leadership” of Pacific Island countries. After this, however, the Government’s primary concern is to minimise the scope of the proceedings to the “the specific obligations of States Parties to UNCLOS”, the law of the sea and nothing else.  

“The questions put to the Tribunal do not involve issues of liability, responsibility, or dispute resolution”, Australia’s submission states. “Nor do they invite the Tribunal to consider any legal consequences arising from the specific obligations of States. … Given the terms of the questions that have been put to the Tribunal, it has no jurisdiction to provide its opinion on issues of liability, responsibility, or dispute resolution.”

The primary thrust of Australia’s submission is to minimise the scope and significance of any advisory opinion, and especially keep out any talk of accountability, liability or compensation. That’s likely to be reflected in Australia’s approach to the ICJ.  

As Attorney-General in a government energetically approving new coal mines and promoting dodgy carbon-capture and storage projects to facilitate increased LNG sales to “traditional energy export partners”, Mark Dreyfus will be working to his clients’ brief. It will be a harder row to hoe given the broader scope of the questions referred to the ICJ, but Dreyfus KC will no doubt do his best.  

Last November Vanuatu’s Minister for Climate Change Ralph Regenvanu complained his country’s ability to adapt to climate change was being overtaken by “Australia’s hypocritical gas expansion plans.”  

The Albanese Government’s climate hypocrisy is likely to again be on display, this time argued by our first law officer to the ICJ.  The principle of “the polluter pays” is unlikely to appear in Australia’s carefully drafted submission.

Race of the Century: Australia is in the box seat on climate and finance, here is the blueprint for victory

This post was originally published on Michael West.

The reported suicide of Boeing whistleblower John Barnett in Charleston, South Carolina (US), is a reminder of the need for reform in Australia. Lendlease whistleblower Tony Watson proposes a Whistleblower Authority.

According to the BBC, John Barnett had died from a “self-inflicted” wound on 9 March, and police were investigating. In the days before his death, he had been giving evidence in a whistleblower lawsuit against Boeing, where he had worked for 30 years. Boeing’s production quality issues are well documented.

In Australia, following the PwC tax leaks scandal, the Government has introduced a Bill to extend whistleblower protections to cover disclosures made to the Tax Practitioner board. A comprehensive review of Australia’s tax and corporate whistleblower laws will commence in July.

Proposals for strengthening whistleblower protections will include extending its breadth – who and what is covered, at what stage, and on what basis. The review will weigh the introduction of a Whistleblower Authority or Commissioner, whether there should be a ‘duty’ to blow the whistle, and whether we should introduce a financial incentive or bounty system as is in use elsewhere, including in the US.

It is in our interest as a society that we protect whistleblowers. Professor AJ Brown, Australia’s renowned expert on whistleblowing, recently testified in Canberra: “Since I last appeared before this committee in 2017, we have certainly completed a lot more research which confirms that whistleblowing is the single most important and significant way in which wrongdoing comes to light … It does not matter which industry or which sector of the economy, or which institutions we are talking about.”

The best defence, and the best deterrent, against wrongdoing of all types, is the whistleblower.

Yet there has never been a successful whistleblower case in Australia.

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

I called the Lendlease double-dipping tax scandal for which Lendlease has belatedly raised a contingent liability in its most recent accounts. I commenced an action under our whistleblower laws against Lendlease and PwC in April 2022.

Why a Whistleblower Authority?

Having experienced first-hand the pursuit of whistleblower protection, I think it is imperative that we introduce a well-funded and well-resourced Whistleblower Authority. Here are 5 reasons:

1. The inequality of arms

In whistleblower cases, the wrongdoer is a big corporate or government. They are powerful opponents with deep pockets. Directors use shareholder money to defend themselves and crush the whistleblower. The expense, cost risk, and delays in seeking protection should not be left solely to the whistleblower.

2. A Whistleblower Authority would better protect the whistleblower

One goal of big corporates in disparaging the whistleblower is to deter others from speaking up. In China, this tactic is called killing chickens to show monkeys.

The other equally important goal is to intimidate and humiliate the whistleblower. When a whistleblower calls out a fraud or misconduct of a big corporate, the corporate responds by questioning the psychological stability and moral character of the whistleblower. C. Fred Alford, in his book Whistleblowers: Broken Lives and Organisational Power, calls this the “nuts and sluts strategy”:

The key organisational strategy is to transform an act of whistleblowing from an issue of policy to an act of private disobedience and psychological disturbance.

The tragic death of Boeing whistleblower John Barnett is evidence of the pressures brought to bear on whistleblowers. A Whistleblower Authority standing with the whistleblower will constrain such attacks.

3. Has the message been heard?

A considerable frustration for many whistleblowers is that they never know if the employer or regulator has effectively dealt with the disclosed crime or misconduct or if it has been swept under the carpet. A Whistleblower Authority should have powers to obtain information on the investigation of the wrongdoing and share that with the whistleblower.

Big companies who money launder, pollute our waterways, blow up sacred sites, or commit tax fraud should not be able to hide behind secrecy provisions.

4. Avoiding whimsical court decisions

The Federal Court’s decisions on our whistleblower laws are whimsical; a Whistleblower Authority would ensure protection is found and given, not undiscovered and denied.

The whistleblower protection in the Tax Administration Act applies to disclosures made at or after 1 July 2019. I made multiple disclosures after 1 July 2019, but I still have no protection.

With the greatest respect to the Federal Court justices, they have rewritten the statute. On the Federal Court reasoning, the application of the provisions is governed not by the timing of protected disclosures, which on the face of the legislation is the sole test, but by the timings of the retributions effected by Lendlease and PwC.

Consider this: Lisa and Linda are identical twins, working for BigBank. They become aware of a money laundering scheme. On 30 June 2019, they both tell their boss. Lisa is dismissed immediately. Linda is dismissed the following day (1 July 2019). They tell the ATO on 1 July 2019. In the Federal Court’s view, Linda is protected. But Lisa is not protected. The only difference between them is the date of dismissal. The timing of their disclosures doesn’t matter. Perhaps if a Whistleblower Authority had run this case, the outcome would have been more conventional.

5. The High Court rules in favour of the rich and powerful

Last November, the High Court revised its process for dealing with special leave applications. If you, as an applicant, are represented by a barrister, your application will be read by all seven High Court justices. If you make an application yourself, it will be read by two of the justices. Who engages barristers? Rich individuals and big corporations.

It is one rule for the rich and powerful and another rule for the rest of us.

I am left to wonder whether special leave would have been granted if all seven justices had read my application. A Whistleblower Authority will engage barristers and level the playing field.

A Whistleblower Authority would ensure that concerns raised by whistleblowers are acted upon; it would promote good corporate governance and discourage misconduct and malfeasance; it would protect the public purse; and it would ensure protection is genuinely available to all whistleblowers.

Whistleblowers and the Administration of Injustice | The West Report

 

This post was originally published on Michael West.