On Jonathan Moylan and the Whitehaven coal hoax

The latest in a long line of Aussie hoaxes was perpetrated to great effect this week though its creator might yet pay a penalty of ten years and half a million bucks. Anti-coal activist Jonathan Moylan is in the wars for putting out a press release in the name of ANZ Bank on Tuesday. The release said the bank was divesting its $1.2b loan to Whitehaven Coal for its Maules Creek Coal Project. It was an important announcement. In Whitehaven’s own words, Maules Creek is “one of only a few remaining tier 1 undeveloped coal assets in Australia. It is also one of the largest coal deposits in Australia with 362 Mt of recoverable reserves.”

Photo credit: ABC TV News

Before it could be exposed as a hoax, it triggered a stock market collapse for the coal company. While almost all of the losses were subsequently recovered before the day was out, Moylan’s actions raises serious political as well as ethical and legal issues. Using dubious means, he focussed attention on the important question about whether we should be investing in major coal projects in a time when fossil fuel emission is the biggest issue we face as a species.

Maules Creek is in the heart of the rich Gunnedah Basin in NSW. That state and Queensland produce 97 percent of Australia’s black coal. It is an industry in decline with Australia producing 405 million tonnes of raw black coal in 2010-11 down from 471 Mt. in 2009-10. Yet Australia remains the world’s fourth largest coal producer and the world’s leading exporter with markets in Japan, South Korea, China, India and Europe. Coal fired generators are leading contributors (20 percent) to a greenhouse effect as heavy-grade emitters of carbon dioxide and methane into the atmosphere.

The Centre for Climate and Energy Solutions acknowledges fixing the coal issue will be difficult. Coal is cheap, is important for meeting energy needs in the developing countries, and has good lobby groups in countries like the US, which is the “Saudi Arabia of coal.”  Coal-fired generators could still play a role if carbon capture and storage (CCS) technology ever takes off, possibly 10-15 years away.  There would also be a need for a carbon market, priced at around $30 a ton of CO2 and a way of retrofitting CCS into existing technology.  An ANZ that truly considered its customers interests, would ensure such boxes were being ticked. But it has no plans to do so and there is no scrutiny of whether such interests are considered.

Instead, the argument focussed on Moylan with those dividing into two sides on whether his hoax ends justified the means. Those that supported him like Bob Brown identified Moylan’s action as a necessary civil disobedience that brought out in the open ANZ’s investment in coal.  That brought out the coalition’s Eric Abetz saying the ends did not justify the means. He turned it into an attack on Lee Rhiannon and the Greens’ “extreme political tendencies.”

Whoever is right, there is one thing for certain - Moylan planned his attack well. He put together a fake ANZ press template, a website and dummy email inbox online. The press release was a remarkable use of managerial language to frame an argument that would be quite unusual and brave in an Australian business context. Moylan used the voice of ANZ Corporate Communications to announce the bank would not support the project. Toby Kent, “Group head of corporate sustainability” was quoted to say the company wouldn’t invest in coal projects that cause “significant dislocation of farmers, unacceptable damage to the environment, or social conflict." The decision was made after “a careful analysis of reputational risks and analysis of the returns on this mine in the current climate of high volatility in the coal export market.”  The released concluded with the statement ANZ was undertaking “a review of coal and gas investments on productive agricultural lands and areas of high biodiversity.”

Moylan’s fake ANZ release was quickly picked up by AAP Newswire who failed to conduct any of the basic identity checks that would have exposed the hoax. At the bottom of the emails are phone numbers for Toby Kent and Joanne McCulloch “Media Relations Advisor” which if anyone had bothering phoning would have quickly exposed this email as a hoax.  Either that or a quick check of ANZ’s database of media releases would have been enough to dispel, or at least doubt, the information.

Instead AAP swallowed the news whole and provided it directly to the markets. When traders in the Australian Stock Exchange saw the newswires shortly after midday Tuesday, they went ballistic. Whitehaven bore the brunt as 85% owners of Maules Creek Coal. Maules Creek is 18km north-east of Boggabri on the Kamilaroi Highway between Narrabri and Gunndah. It is also just 16km from the railway line servicing the coal terminals at the Port of Newcastle, 360km to the south-east. Maules Creek’s current resources are expected to support a large open cut mining operation for 30 years at an average saleable coal production rate of 10.8 million tonnes per annum (Mtpa). Subject to approvals, the first coal production will commence in mid 2013, with saleable production exceeding 10Mtpa from 2016 onwards.

But it was a dead duck without ANZ’s investment, and within minutes Whitehaven shares plunged almost 10 percent from $3.52 to $3.21. Whitehaven Coal lost more than $276 million in market value. It capped off a bad year for the company since it merged with Nathan Tinkler’s Aston last April giving him 19.4 percent ownership. The share price has lost over half its value since then with CEO Tony Haggarty and the board blaming it on uncertainty due to Tinkler’s financial woes  - they want him to divest to institutions. Tinkler was quick to return fire on Haggarty and the board saying he wanted to increase his holding not decrease it.

That plan may be in tatters after Tuesday. The price did not recover until the real ANZ responded with a media release (pdf) entitled “Fraudulent media release regarding Whitehaven Coal”. This release (which looked remarkably like the fraudulent one) said ANZ remained “fully supportive of Whitehaven Coal.”
At the end of trading, Whitehaven was just 2c down on the day reflecting the fact there were other issues with the project. The damage done to Tinkler, was variously estimated to be anywhere between $50m and $180m (assuming it wasn’t him who picked up the shares when they were on the rebound).

Whatever the damage to Tinkler or Whitehaven, Moylan will suffer significant collateral damage. There is a strong prima facie case his actions were illegal according to Section 1041E of the Corporations Act 2001 (Cth).  That act states it is an offence if a person makes a knowingly false statement that is likely to make people dispose of shares. The maximum jail term for individuals is 10 years, with fines of up to $495,000. Organisations face fines of up to $4.6 million.

The Australian Securities Investment Commission said it would be investigating whether there had been a breach of Corporations Act rules on false or misleading statements. According to dean of law at the University of Western Sydney Michael Adams the legislation that deals with corporate fraud imposes a high penalty on false or misleading statements about traded securities on the ASX. Adams believes a successful prosecution will hang on the difference between a public nuisance and civil disobedience. “A protest normally provides publicity for a cause and brings the matter to the general public’s attention, but causes little harm to the community,” Adams said. “A fraud – and in particular one that impacts on the share market – has huge consequences”.

Research fellow on ethics Edward Spence picked up on Abetz’s argument about the ends and the means. Spence said Moylan’s ethical failings were harmful to the “integrity of the digital informational environment”. This is the environment whose trustworthiness, Spence said “we all rely on to conduct our legitimate informational transactions.” We are not only biological beings, he said but also and increasingly informational beings. “When the informational environment is harmed we are also harmed.”

Spence may be exaggerating the harm here as it ignores the fact that checks and balances such as AAP did not do its job properly. Nor did any of the rest of the media use the hoax to expose ANZ's dealings with the coal industry. Why didn't anyone ask the bank if they would do "a review of coal and gas investments on productive agricultural lands and areas of high biodiversity".Why is it acceptable for the bank to continue to invest in projects that cause "significant dislocation of farmers, unacceptable damage to the environment, or social conflict?"

We're waiting.

Should people be free to bushwalk unprepared?

A Victorian bushwalker in NSW has been fined on charges of “lack of planning or preparation”. The 29-year-old man, name unknown, went off on a long walk last Saturday  in the Blue Mountains, west of Sydney. He was leaving from Newnes and heading east across the rugged Wollemi National Park to Colo Heights. He carried a kilo of potatoes and an unknown quantity of naan bread which he estimated would last him three days.

He told friends who dropped him off he would meet them at the other end on Wednesday at 3pm. When he didn’t rendezvous at the appointed time, his friends alerted authorities who mounted a search and rescue operation. With the help of two helicopters, they found him just four hours later on the track. The first helicopter spotted him and the second winched him out of the Wolgan Valley. According to Police, the man had suffered a minor ankle injury and declined treatment. Police took him to Katoomba station for questioning before giving him a $500 infringement notice.

None of the media covering the story stated why this was an offence (they were all too obsessed with the spuds and naan) but they did quote NSW Police Force Rescue commander Brenton Charlton who said the route through remote terrain was extremely difficult to complete safely and had taken much longer than estimated. "Getting the basics right with trekking is so easy - all people have to do is notify the police or other responsible person of their trip intention and carry a personal locator beacon," Charlton said. "Making use of available technology, together with some commonsense trip preparation, could mean the difference between life or death."

Whatever about that quantity of food being sufficient for three days,  it is clear the man was underprepared. Though some people on that bushwalk forum said the walk was possible in three days, even a modicum of research would have uncovered it was likely to take much longer. According to this site devoted to walks at Newnes, the track to Upper Colo is listed as a very hard grade walk that takes seven days. The walk “ is for experienced and well prepared walkers only! Country traversed is rugged and there are no tracks beyond Annie Rowan Creek.” Its advice is “Check with your local bushwalking club before attempting this one.”

Clearly the Victorian did not take this into account. But should that be an offence? And should all bushwalkers be forced to take a “personal locator beam”?  PLBs are distress radio beacons which transmit location information about individuals directly to Search and Rescue forces letting them know that the owner is in grave and imminent danger. They retail on Gumtree for around $225 second hand though Blue Mountains police apparently do give them out for free. When Briton Jamie Neale was found alive after being missing in 2009 for 12 nights, Blue Mountains police superintendent Tony McWhirter told media they have free PLB for bushwalkers so they can locate them. However since then, the law has changed.

The NSW police media release (which was the basis for all media stories - no journalist did original research) did state why the fine was activated. It was issued under the National Parks and Wildlife Regulations of 2009 for engaging "in activity that risks the safety of self/others". The relevant clause is 22(1)(d) which reads “Sporting, recreational and other activities
(1) A person must not in a park:
(d) engage in any activity or recreational pursuit that involves risking the safety of the person or the safety of other persons or damaging the environment.
Maximum penalty: 30 penalty units.”

As a contributor to a NSW buskwalk forum said, the fine was troubling. “Guy sounds like an idiot", said colinm, “but I don't see that it necessarily warrants a fine. Since he's a Victorian, I bet he doesn't contest the charge, so is a bit of a soft target.” So should bushwalkers be forced to be prepared or should anyone have the right to go out and do what they want? Was it necessary for an expensive search and rescue operation to be mounted when the man was just four hours late? And what equipment should be compulsory on any trip? These angles were not covered by media. In their efforts to make the trekker look like a fool, the naan bread proved more alluring than the nanny state.

Brian Leveson - media personality 2012

The 2012 Woolly Days media person of the year is Brian Leveson. Leveson is a jurist not a journalist but his impact on journalism and the world of media this year has been profound. 

The year 2012 will not go down as a great year for the world’s media. While the world’s business-as-usual pattern of production and consumption sees it barrelling down a path towards a 4 degree increase in temperature by 2100, the focus of most media attention is ever increasingly the deeply superficial.  

Commercial media have always fulfilled two purposes: to make money and to inform but it is the profit imperative which is winning clearly at the moment. The large multi-national conglomerates that own media stock look no further than the bottom line when it comes to meeting deadlines. Issues like news values and ethics are a poor second if there is no payback. Meanwhile shareholder disquiet of falling ratings or circulations can be managed quarter to quarter by cost cutting and doing more with less.  There is as a result according to Michael Mandel, a “shift in journalistic employment to non-traditional industries, an increased in the self-employed, a delayering of journalism, and perhaps lower pay.”

Brian Leveson admitted as much on his recent visit to Melbourne. The closure of a large number of newspapers has reduced the extent to which local government, health, education and the courts can be held to account. “Society will be less well served as a result”, he said. Yet Leveson was aware that even if journalism jobs are becoming diffused and of less value, the media they serve remain powerful players as editorialists, chroniclers, sensemakers, muckrakers and watchdogs. 

Their contract with the public to perform these roles is based on trust. The one-to-many broadcast model of television and the major papers ensured they always had the microphone to drown dissent. The internet and web2.0 changed all that and disapproval can amplify virally if compelling enough. The web further undermined the media’s privileged modus operandi by allowing a multiplicity of blog voices harvesting free online content often with more sagacity and insight than the journalists. Social media has forced big media to become more humble in their dealings with the public they profess to “serve”.

There remains pockets of strong resistance, with Rupert Murdoch’s News Corp leading the counter-assault. This old fashioned news and entertainment empire (one of the few not owned by a non-news company) remains convinced it does not need to answer its critics. China is a rare failure but In the US, Fox News is highly successful while his 2011 plan to buy the 60.9 percent of British cable company BSkyB it did not own was just a whisker away from being successful when undone by fine journalism. 

Revelations by the Guardian journalist Nick Davies and his editor Alan Rusbridger brought the sordid hacking affair to light. The shadowy practices not only showed the need for profit greatly exceeded all other motives but described the contempt News had for its own audience. With the weight of evidence growing Prime Minister David Cameron appointed Justice Leveson in June 2011 to investigate the culture, practices and ethics of the British press as well as the dealings between the press, politicians and the police.

As testimony followed testimony, it was clear much was rotten in Murdoch’s hamlet.  It wasn’t just the attitude that privacy was for paedo’s as former News of the World journalist Paul McMullan espoused, it was the scene of serious crime. As November 2012, there had been 90 arrests on charges of interception of mobile phone messages, payment to public officials, data intrusion. The Inquiry would expose potentially corrupt dealings between senior members of the media, political parties and the police.

In nearly nine months of oral hearings, almost all available to transcript or watch online, involving 337 witnesses and 300 statements, the Inquiry became “the most public and most concentrated look at the press” Britain had ever seen. It enormous resonance not only in Britain but wherever British legal, ethical and press traditions operate, such as Australia. The numerous celebrities who portrayed themselves as “fair game” to an uncaring media, added to the notoriety of the charges. Australian media were quick to distance themselves from the phone hacking but there but for the grace of god go they at any lengths for a story. 

With such a wide ranging brief, Leveson’s Inquiry had important things to say about plurality of ownership, privacy laws, and regulation of the press, all of which got the media companies quivering in their boots. Leveson was at pains to stress his inquiry was not an attack on press freedom. However, he said, with rights came responsibilities and all too often the press has simply ignored them. Neither the press or the press council ever launched investigations into allegations of serious misdoings such as breaches of data protection or trade in private and confidential information. Indeed when the phone hacking issue was raised, police executing a warrant were driven off the News of the World premises while the Press Complaints Commission criticised the Guardian for publishing the results of their investigations into the cover-up. 

In November 2012 Leveson released his findings in a 2000 page report and 48-page executive summary.   Leveson proposed an independent replacement for the Press Complaints Commission which he said had no regulatory powers. It would have a dual role of promoting high standards of journalism while protecting the role of the individual. The new body would not include serving editors or politicians and it could impose fines and direct the appearance of corrections. 

Leveson said participation needed to be universal for the body to be properly funded and succeed in its purpose. Those that declined to be involved would forfeit the right to the in-built arbitration process and therefore could not claim costs of any civil action even if they won because they had refused the cheaper route to justice. Leveson said such a body would not regulate the press.  He did not advocate prior restraint (a point of honour with the British press since Milton’s Areopagitica in 1644). He acknowledged how the important role media plays in society “as a critical witness of events” and accepted that media and journalists have several necessary privileges under the law as “one of the true safeguards of our democracy”. Leveson said his legislation would in fact enshrine “for the first time, a legal duty on the Government to protect the freedom of the press”.

However, the media did not see it that way.  Every newspaper in Britain except the Guardian rushed to denounce Leveson’s key recommendation. Biggest selling paper The Sun said it was “deeply alarmed” by the prospect of “State control of newspapers.” “Such a law could allow State officials to walk into papers like The Sun and censor stories,” it said. The Express also worried about political aprons: “To put politicians in ultimate regulatory control of newspapers and then expect them never to seek to use that power to constrain criticism or scrutiny is to place in them a degree of trust they frankly do not deserve.” 

Prime Minister David Cameron – himself implicated by the evidence of the over-close relationship between press and politics – plumped for the press over Leveson. He expressed his reservations over the legislation for the independent process to recognise the new self-regulatory body.  “For the first time we would have crossed the Rubicon of writing elements of press regulation into the law of the land,” Cameron said. “We should I believe be wary of any legislation that has the potential to infringe free speech and a free press.”

High profile hacking victims such as JK Rowling expressed dismay at Cameron’s speech. “"Having taken David Cameron's assurances in good faith at the outset of the inquiry he set up, I am merely one among many who feel duped and angry in its wake," she said. The Hacked Off coalition gained 100,000 signatures calling on the government to comply with Leveson’s findings. Cameron’s coalition partners the Lib Dems are among them, so the matter rolls on, awaiting further political arbitration in the new year.

If Cameron didn’t reckon for the public outcry, then Leveson certainly did. He predicted the victims and the public would not accept the outcome “if the industry did not grasp the opportunity”. Following seven inquiries into the British press in 70 years, it “did not make sense to contemplate an eighth.” Whether short-term interest will prevail is a moot point, as is the longevity of the media’s powers of influence. What is not in doubt is that Brian Leveson has done us all a favour by pointing a strong light on its problems. Maybe then, the media can return to the problems that affect the rest of us. 

Previous Woolly Days media personalities of the year

2009 Mark Scott

2010 Julian Assange

2011 Nick Davies and Alan Rusbridger

Ukraine challenges Australia's cigarette plain packaging laws

While those who detest the loss of national power to international bodies usually blame the UN, it is a World Trade Organisation decision this week that is posing the most serious threat yet to Australian government policy. The high-stakes decision is about cigarettes smoking, a global pandemic that kills six million people a year. Accounting for one in every 10 adult deaths, smoking is the most widespread public health threat in the world and the single biggest preventable cause of cancer.  At least 15,000 people die a year in Australia from smoking related causes.

Australia is now in the vanguard of public health initiatives against this pandemic.  Last year the Government passed ground-breaking legislation for cigarette plain packaging through a hostile parliament and then a high court challenge in August this year. The legislation requires tobacco products to feature standard olive-coloured plain packaging with large health warnings.

Within hours of that court decision a challenge came from tobacco-producing country Ukraine in the WTO. Ukraine is not the first country that comes to mind when dealing with Australia trade. According to the Australian Department of Foreign Affairs and Trade, trade is “modest” and it favours Australia. In 2009 Australia exported $70m of goods and services to Ukraine while just half that amount went the other way mainly to pay for Ukrainian fertilisers and electrical circuits equipment. Ukraine exports a lot of cigarettes but little or none to Australia.

Nevertheless Ukraine requested a WTO Dispute Settlement Body (DSB) panel to look at the cigarette trademark restriction. After being deferred last month, the DSB agreed to form a panel last week. Now the DSB will determine if the measures “erode the protection of intellectual property rights” and “impose severe restrictions on the use of validly registered trademarks”. Ukraine explained why IP and trademarks trump public health policy. “Governments should pursue legitimate health policies through effective measures without unnecessarily restricting international trade and without nullifying intellectual property rights as guaranteed by international trade and investment rules," they said. In arguing international trade and property rights should be a factor in health policy, Ukraine said the measures were “clearly more restrictive than necessary to achieve the stated objectives” and  an “unnecessary obstacle to trade”.

With so little trade at stake, it seems an absurd argument but as ABC Lateline discovered, Ukraine's tobacco industry is especially powerful. After the collapse of the Soviet Union, production soared through conglomerates like Japan Tobacco International (JTI) and Philip Morris peaking at more than 130 billion cigarettes four years ago. Unsurprisingly JTI supports the challenge to Australia. “Put simply, if this measure is passed, Australia will be saying to the rest of the world, ‘we're not open for business’,” JTI said. Ukraine challenges two key Australian measures, the Tobacco Plain Packaging Act 2011 and its implementing Tobacco Plain Packaging Regulations 2011. Its case is that these Acts are inconsistent with several articles of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, some of the Technical Barriers to Trade (TBT) agreement and one of the 1994 GATT agreement.

Australia was furious with the interference. It said Ukraine had high death rates from tobacco and its actions were at odds with its own policies to comply with the WHO Framework Convention on Tobacco Control. Australia defended the tobacco plain packaging as a “sound, well-considered measure designed to achieve a legitimate objective — the protection of public health”. Australia said the WTO recognised public heath as a fundamental right of its members and the measure was non-discriminatory and not unnecessarily restrictive.

Unlike Ukraine, Uruguay understood Australian aims. Its WTO reps said Uruguay “could not remain silent in this fight against the most serious pandemic confronting humanity”. Uruguay said the Multilateral Trading System should not force members to allow a product that kills its citizens in large numbers “to be sold wrapped as candy to attract new victims.” New Zealand said that it is also considering plain packaging measures and Norway said that countries are under obligation to adopt measures to protect public health.

But other countries such as Zimbabwe, Honduras, Dominican Republic, Nicaragua and Indonesia have backed Ukraine. Zimbabwe relies on tobacco taxes and has not forgiven Australia for its anti-Mugabe stance. It said 200,000 farmers and their families in the country depend on tobacco. How many Australian lives should die for these farmers, they did not say. Central American nations Honduras and Nicaragua supported the Ukraine too. Honduras said that the WHO Framework Convention is” indicative and non-binding” while Nicaragua said tobacco was one of their most important exports.

Big Tobacco has been careful to cover their tracks but no-one is in any doubt who is behind the charade. Fairfax economic correspondent Peter Martin said a Philip Morris International briefing note for the US trade representative in the Trans-Pacific Partnership wants an investor-state dispute settlement mechanism, “including the right for investors to submit disputes to independent international tribunals.” Martin said the Howard Government FTA with the US resisted this notion but an Abbott Government might be more pliable.

Dear Minister (Redacted): Assange and FOI

On Thursday, the Australian Department of Foreign Affairs and Trade published their answer to a Fairfax Freedom of Information two-fold request on Julian Assange. The first part was for briefings to Foreign Minister Bob Carr about Wikileaks, Assange and Bradley Manning. The second was cable traffic (the kind made freely available by Wikileaks) between the embassy in Washington and the department on Wikileaks, Assange and Manning in the months February to April this year. The aim of the FOI was not to release Assange but to embarrass the government by proving Bob Carr a liar. Fairfax's gotcha today was DFAT’s long-held concern Assange would be extradited to the US was “at odds with Carr's repeated dismissal of such a prospect.” More importanly however, DFAT's heavily redacted response gives much insight into Australian concerns about Assange

The response started with a letter addressed to Carr on March 2. The letter was written by the department’s secretary Dennis Richardson who was also ambassador to the US for four years to 2009.  While this was before the period of Assange’s international infamy, Richardson presumably had some sage advice on how to deal with the Assange dilemma. “Dear Minister” it began followed by five pages all marked “redacted”.  Some tantalising notes were left on the last page. Consider, Stephenson wrote to Carr in note s22.1(a)(ii), on any given day, the department is dealing with around 1500 consular cases. The appendix s22.1(a)(ii) also deals with workload and said consular work was increasingly complex due to the travel behaviour of Australians and the number of cases raised to the media which require ministerial involvement. We don’t know where this was leading as the next page was redacted.

There followed a suggested response to possible questions on Assange lawyer Jennifer Robinson whose name was included on a Heathrow “inhibited travel” list.  This was to confirm events but to deny any Australian involvement or British restrictions on her travel. The problem was caused by “management of Ms Robinson’s check-in” and “inadvertent comments by airport security and other staff”. They said check-in staff eventually cleared Robinson to travel and she boarded the flight as planned. The talking point ended “I hope this will put all the conspiracy theories to rest.”

Those conspiracy theories had to wait for the next page which was redacted. The next point was a problem of Carr's own making. A month prior to becoming Foreign Minister, Carr used his own blog to decry the role of judges as prosecutors in the Swedish legal system as “an outrage by Australian standards”. The possible question was shouldn’t the Government do more to stop him from being extradited there. The answer was whatever his opinions as a blogger, as a representative of the Australian Government, he had to express “confidence in the integrity of judicial processes of Sweden”. 

The matter of a US indictment should only be discussed “if raised”. The response should be that while the US is investigating Wikileaks there was no announcement of any action against Assange and the US has not advised Australia of any such action though “the details of our conversations are confidential”.  Australia refuses to comment on the leaked emails from Stratfor which spoke of the sealed indictment.  Two other issues to discuss only "if raised" were the “temporary surrender” extradition mechanism and the likelihood of Australia extraditing him to the US if he returned here.

The briefing said Assange was welcome home “once international orders preventing his travel have been lifted”. Any extradition from here was a matter for the Attorney-General though Assange could fight such an order in Australian courts. There was also an ambiguous answer to avoid confirming Assange’s eligibility to run as an Australian Senator as “suggested on Twitter”. It was Wikileaks’ own suggestion and while the response was to be handballed to the A-G, Senator Carr’s own opinion was that “Assange has not been charged with an offence in Sweden or elsewhere”.

There follows background on the legal proceedings. British police issued Assange with a European Arrest Warrant in December 2010 which a court found valid two months later. Assange appealed to the High Court which upheld the decision in November 2011. However they allowed an appeal to the Supreme Court on the legal matter of whether a prosecutor was a “judicial authority” who could issue an EAW under UK law. After hearings in February, the Supreme Court has reserved its opinion. If the appeal is successful, Assange is free to walk. If it is unsuccessful, Assange still has one last legal avenue open, the European Court of Human Rights.

The Department said they had spoken to Assange twice by phone, twice in person, facilitated a visit by his mother and had attended all legal proceedings. If he ends up in Sweden, he would probably be kept in detention while any trial was pending. As for the US, there a Grand Jury was deliberating the Wikileaks cablegate affair in secret. Wikileaks was accused of providing a rainbow table to crack passwords in Manning’s pre-trial. After Wikileaks released the Stratfor email, Australia sought clarification on whether there was a sealed indictment for Assange. The request was denied due to the secrecy arrangements of the Grand Jury. 

The secrecy of DFAT files on Assange continued with 10 more redacted pages. There followed a cable from Washington marked “routine, information only”. The cable provided a summary of the Manning case which described in great detail the links to Assange and Wikileaks. These included file-sharing, contact details and on-line chat. Implicit in the cable was that prosecutors were building a case against Assange. 

This possibility was made explicit in another similarly undated “routine” cable which said the US has been investigating Assange for more than 12 months. An unconfirmed grand jury was empanelled in Virginia in 2010 but this has been a Kafkaesque black hole for information with no one involved allowed to talk about it and the US refusing to even confirm its existence. The cable also quotes commentary which suggests a successful US prosecution of Assange would be “challenging and complicated”. Possible charges could include accessing computers without authorisation, theft of US property, disclosing prohibited material or criminal conspiracy to “defraud the US”. Any prosecution would not tackle First Amendment rights even though as a non-American he may not be covered. 

A few more redacted pages occurred before more routine cables.They quoted a Wikileaks press release denouncing UNESCO for banning Wikileaks personnel from a conference about Wikileaks. They pointed out the conference was organised by “Washington insiders, cold war ideological allies (such as Freedom House and the disgraced IAPA) and U.S. mainstream media groups.” When media asked the US State Department, spokeswoman Victoria Nuland said given US’s state of “suspended animation” in UNESCO, she was “not sure we’re going to have much to say about it."

Another cable gave an update on the Manning arraignment. With the complexity of the case of 40,000 documents containing 400,000 pages, it would mean an August start date. Manning would be detained for 800 days by the time it starts. It reported a voice from the gallery shouting “Judge, isn’t a soldier required to report a war crime?” It also reported the president of the Center for Constitutional Rights Michael Ratner’s comment that prosecutors were “bludgeoning Manning to accept a plea where he would then implicate Assange”. 

Then it was back to the leaked Stratfor emails. On 27 February Wikileaks began publishing the Global Intelligence Files based on five million emails from a company called Stratfor which provides subscription-based analysis of geo-political issues. It was a private sector Cablegate which Wikileaks publicised with newspaper partners. The cable did not mention the “sealed indictment” but did say Australia was mentioned twice. The first, an East Asia Monitor Guidance, talked about Australia’s submarine crisis and the second from a “well connected former Senator” discussed Chinese mining interests. 

A cable followed that explicitly mentioned the Stratfor “sealed indictment” email. The email’s author Fred Burton was an ex-deputy chief of US counter-terrorism with “close ties” to the intelligence and government network. The email was not official confirmation and the cable author said Burton might be mistaken due to a draft indictment “commonly used by prosecutors to ‘game out’ possible charges.” Either way the silence of the Grand Jury made everything just speculation.

There was a long explanation why Grand Juries operate in secrecy. It was imported from English law, it protected witnesses, it would lessen the risk someone indicted would flee, and lastly it would prevent someone tried but exonerated from “being held up to public ridicule”. While Assange might have coped with the indignity, it is also designed to prevent “satellite litigation in advance of judgement”. 

More cables discussed new allegations in the Manning case. Firstly, that he provided material assistance to the enemy, Al Qaeda in the Arabian Peninsula (AQAP). It discussed in detail the legal arguments and the media commentary with many saying the case was weak and questioned the benefits to AQAP.  Another cable followed that talked about the “rainbow table” allegation. 

Another one discussed the UN Special Rapporteur on Torture’s report to the UN on Manning (Manning data starts page 74). Juan Mendez said Manning’s detention was punitive but he did not accept monitored access to the prisoner. It had a letter from the Department of Defense to Mendez saying they were satisfied with the detention and had placed him on death watch. 

The last significant cable was about Wikileaks’ request for the US to publicise details of Manning’s court martial. The Center for Constitutional Rights' Michael Ratner said the public had First Amendment and common law rights to access to criminal trials. Ratner quoted Circuit Judge Damon Keith’s dictum “democracies die behind closed doors”. He noted Mendez’s objections and said the public had a “compelling interest” in the Manning case. Particularly Assange had a “unique and obvious interest” and “it appears” federal prosecutors had a sealed indictment against him. 

The last cable in the document about Jennifer Robinson’s flight difficulty was completely redacted. By my counting 39 pages out of 125 were redacted showing Assange has been a major topic of discussion and concern for DFAT. Yet there is much revealing about what is left in. Australia almost certainly knows about the sealed indictment but is content to hide behind legal niceties from confirming it.  This was certainly the take of today’s Fairfax report on the material. The Department as ever played a straight bat. Fairfax concluded with DFAT’s non-response. “A spokesperson for Senator Carr said yesterday Assange's circumstances remained a matter for the UK, Ecuador and Sweden, with Australia's role limited to that of a consular observer.” Carr hopes the convenience of consular observation will keep Australia off the hook as this high-stakes game heads towards a spectacular climax.

Dark night rising

Photo: Barry Gutierrez/AP

It was impossible not to think of the Denver shootings as I attended the new Batman movie at the local cinema tonight. This latest random mass murder could have been scripted in the film itself, though it would have been the work of a cardboard-evil mastermind rather than just an unhinged student. While I'm a fan of the work of director Christopher Nolan, this latest effort was turgid twaddle. The plot was so predictable I left after an hour of tedious violence, with the hero in a bit of pickle but assured that the good guys would "win" in the end. 

I came away thinking it was folly to believe there is no connection between the film and the murders.  Guns and the power they confer are at the heart of the Batman movies – as they are at the heart of most Hollywood blockbusters. Guns are the ultimate deus ex machina plot device. Whoever is holding one, calls the shots. The drama moves towards the pivot where either the tables are turned or someone is shot. In the Dark Knight Rises, guns were everywhere and only “superhero” powers can overcome them. When the real murderer went loose in the cinema, many in the dark assumed the noise was from the film and paid no attention.  James Holmes called himself The Joker for the stock Batman villain. He painted his hair red and used tear gas before opening fire.  There was no superhero to stop him.

The film producers’ coy reaction showed they are part of the problem. Warner Bros said they took “the unprecedented step” of delaying revealing “eagerly awaited weekend box office figures for Dark Knight out of respect for the victims and their families."  How the box office news would affect grieving families is beyond immediate comprehension, though there was no sign any of the record takings would be used to compensate victims or be put to a campaign against weapons.

America’s “foremost defender of Second Amendment rights”, the National Rifle Association were as quick as I was to blame the culture.  The problem was caused, they said, by “violent imaginary movies", many of them like Batman having, perish the thought, “absolutely no patriotic value”.  As NRA’s Wayne Lapierre deadpanned when wheeled out to defend their position, "Guns don't kill -Batman kills.  Had someone in the audience been armed, this tragedy could have been averted."  Multiplexes, were according to Lapierre, death traps.  Lapierre may have preferred a good old fashioned saloon shoot out where everyone could have taken a pop at the dark knight.

Lapierre is of course right on the point of violent movies, though somewhat muddled about multiplexes and patriotism.  The culture promotes death and violence, as do the movies of many other countries  But there is one big difference about America compared to nearly every other first world country. There, guns and weapons are as easy to get as movie tickets and popcorn.  The major reason the unhinged Holmes had no difficulty in acting out his fantasy was because he was able to accumulate a formidable collection of weapons and 6,000 rounds of ammunition.  None of the journalists baying at Lapierre for answers picked him up on his glib lie: Guns do kill and the tragedy would have been averted had no one in the audience been armed.

As the New York Daily News said, Holmes did not act alone. Lapierre was at his side as were Obama and Romney both cowed into silence over gun control for fear of unleashing NRA’s mighty political wrath.  “(Also) Standing at Holmes’ side as he murdered 12 and wounded 59, were the millions of zealots who would sooner see blood flow and lives end than have to check a box on a gun registration form,” the Daily News said. It wasn’t just about the occasional newsworthy massacre but the “day-to-to-day mayhem of street-crime shootings, responsible for more deaths than all the mass carnage combined, (that only) makes it to the police blotter, the courts, the newspapers, the emergency rooms and the cemeteries.” 

The Daily Beast's Adam Winkler said mass shootings don’t lead to gun control. Colorado has some of the weakest laws in the land despite the Columbine High School massacre 13 years ago. Winkler said the radicalisation of the NRA in the 1970s stalled American gun reform. He quotes Bill Clinton as saying the Brady Bill (named for Reagan aide shot in the 1981 assassination attempt) cost the Democrats the control of the House of Reps in 1994 and neither party has mounted any gun control since, despite America having five murders for every 100,000 people. 

The NRA vigorously defends its stance at every opportunity against every perceived threat to its clout. This week they attacked Obama signing a UN Arms Treaties because they might “trample our Constitutional right to bear arms.”  The 18^th century need for a well-regulated militia remains a holy cow despite bearing arms now sounding as ridiculous as arming bears.  America deserves a referendum on the “right” but in the unlikely event it happened, the majority of Batman watchers across the land would probably vote against change. Violence is endemic in the culture. Unless one of the dead in Colorado had a well-connected senior operative in the Republican Party for a relative, this latest massacre won’t change anything after all the hand-wringing is completed. Superheroes are as thin on the ground in Washington as they are in Aurora.

Gunggari People get native title

It was a joyous day in Mitchell today. The Gunggari people, traditional owners of the land south and west of town celebrated a native victory yesterday with a march down the main street. “Who are we?” they chanted. “GUNGGARI” was the response. Loud and proud, they were celebrating the first native title determination on mainland Southern Queensland.

The marchers were happy a day after the Federal Court of Australia came all the way to Mitchell Shire Hall  to make a consent determination. Justice John Reeves announced the decision immediately shaking hands with Gunggari elder Wayne Saunders as many people cheered and wept. The determination recognises native title rights and interests over 13,600 sq km of land and waters in central southern Queensland. The area is broken up into parcels, the two biggest of which are in the middle of a triangle between Mitchell (east) Charleville (west) and Bollon (south).

In these areas, the Gunggari People negotiated Indigenous Land Use Arrangements (ILUA) with three local councils (Maranoa, Balonne and Murweh),  electricity supplier Ergon, telecommunications provider Telstra and five pastoral properties. Once the ILUAs are formalised, the Gunggari Native Title Aboriginal Corporation will be the prescribed body corporate to manage the native title rights. Their rights are non-exclusive but allow Gunggari people access to, travel, camp, hunt, teach, light fires and use water in the areas affected. They can also hold religious ceremonies and spiritual activities on the land.

The rights are a long time coming. Queensland South Native Title Services principal legal officer Tim Wishart handed up the list of documents to Justice Reeves on which the claim was based. Wishart made a powerful speech documenting the history of the Gunggari “from time beyond memory”. Wishart said the Gunggari land ran west from the Maranoa River and included the headwaters of the Nebine Creek, Mungallala Creek, Wallam Creek and Neabul Creek which together feed into the greater Murray-Darling basin.  They fought to protect those lands “probably before English developed as a language,” Wishart said.

They were uninclined to let the European invaders have free run of the place after Sir Thomas Mitchell first explored the area in 1840.  In 1855 an exasperated Crown Land Commissioner Wiseman wrote “No tribe will allow of the peaceable occupation of their country,” The whites fought back and with superior weaponry killed at least 75 Aboriginals along the Maranoa River up to 1862.  In 1880, George Thorn (who served as Queensland premier two years earlier) boasted the inland Queensland Aboriginals were “pretty well shot down and got rid of”.

Thorn was wrong. The Gunggari and other tribes hung on tenaciously even after losing the war to the colonials.  Monitored by the border and native police, They were tolerated as joint owners of the land until the twentieth century when the patriarchal attitudes of the new Commonwealth brought about the Aboriginal Protection and Restriction of Sale of Opium Acts 1901.  Under this act the camps that existed across the Maranoa were dismantled and hundreds of people were moved east and north into alien lands at government reserves and missions at Taroom, Purga, Barambah/Cherbourg, Palm Island and Woorabinda.

Most Gunggari ended up at Taroom settlement established in 1911. They stayed there until 1927 when the site was abandoned for a dam on the Dawson River.  Though the dam never went ahead, they were marched north to a site near Rockhampton called Woorabinda. Here they were among 17 different language groups under the control of the Chief Protector of Aboriginals, an Orwellian title who was supposed to “protect them from acts of cruelty, oppression and injustice.” Instead they turned a blind eye at best, or ran at worst, schemes to rob Aboriginals of what little they had. 

The few Gunggari that remained behind on country didn’t have it easy either. They mostly gravitated to Mitchell town and were housed on the Yumba (“camp”)  on the eastern edge of town near the Maranoa River. At the Yumba, Gunggari elders spoke their language but repressive white attitudes discouraged them from passing on their knowledge to the next generation.  They did pass on the cultural laws and customs and hunting traditions. Yumbas were often shantytowns and many towns such as Mitchell and Surat demolished theirs in the 1960s. The people moved into town and started meeting the whites in school when previously they would only ever meet on the rugby league or netball field.  

The 1967 referendum, the Keating Redfern speech and Mabo and Wik decisions slowly changed attitudes both of the white and black communities. Robert Munn for the Gunggari People first filed a native title application in March 1996 and followed it through despite no legal representation for 11 years. The application was modified in 1998 to reduce the covered areas and the application was split into two parts in 2001.  In 2007 Queensland South Native Title Services became the legal representative  and they registered an ILUA with the Queensland Government in 2008 for the first part which saw parcels of land change hands in the Dunkeld area south of Mitchell.  Friday’s decision was for the second half.  Munn did not live to see it. He died in July 2009 and five others continued the application in their name. 

In December 2010, the State of Queensland began substantive mediation. The applicant and respondents submitted their material to the Federal Court who announced their decision on Friday.  As well as the many Gunggari who celebrated in Mitchell, others celebrated from afar such as Queensland State of Origin star Johnathan Thurston and Opera Australia baritone Don Bemrose. “I am very proud to say I am a member of the Gunggari community,” Thurston said. “It is important that our history with this land, and our customs, have been observed in this way and I congratulate everyone who has fought for this recognition over the past 17 years – almost as long as I’ve been playing rugby league.” 

Bemrose, the first Aboriginal member of Opera Australia, said he was always proud and honoured to represent the Gunggari. “This moment is acknowledgement of our people’s continued bond with the Maranoa and the persistence, dedication and strength of a few to do all possible to again connect our land to all Gunggari past, present and future is amazing,” he said. As Wishart concluded in Court on Friday, the determination has confirmed what the Gunggari already knew: the land was theirs.

MEAA criticises stalled press freedom in Australia

The local journalist union MEAA has released its annual report card on the state of press freedom in Australia. Kicking at the Cornerstone of Democracy is a comprehensive survey of media law and Australian regulation as well as taking a look at the situation in New Zealand and Asia Pacific.  According to MEAA secretary Chris Warren, the title of the report reflects what the MEAA sees as a failure of government to fulfil its promises. He says five years after the promises were made the project appears to have stalled.

In regulation, the report reflects the disappointment the MEAA expressed at the recent Finkelstein Report which it said would stifle media freedom. While the MEAA is in favour of reform of the Press Council, it disagrees governments should impose self-regulation on the news industry by statute. Warren said Justice Finkelstein’s judgement was clouded by News Corp’s various scandals. With one eye on its membership numbers, Warren’s take was “Finkelstein talks of a reference to the Productivity Commission in two years time – will this be too late? Journalists are losing their jobs now.”

Secrecy is another major concern of MEAA. The report says Australia has 500 secrecy provisions in 176 pieces of legislation across the country with 358 criminal offenses which attract a wide range of penalties up to 10 years in prison. This is despite the Australia Law Reform Commission releasing its report Secrecy Laws and Open Government  in Australia two years ago. That report called for 61 recommendations of reform, none of which have yet been acted on. The MEAA supports supported the ALRC's call for secrecy provisions in the Crimes Act to be replaced with a general secrecy offence limited to disclosures that clearly harmed the public interest.

Freedom of Information is another serious problem, one that anyone that has tried to access government data will find. The MEAA quotes an international FOI survey that puts Australia 39^th out of 85 countries. The Center for Law and Democracy  measured indicators such as right of access, scope, requesting procedures, exemptions, appeals, sanctions and promotional measures. Australia’s mediocre performance was put down to a lack of constitutional right of access to information as well as the numerous exemptions to FOI.

The MEAA said Shield Laws were getting bogged down in the issue of who was or wasn’t a journalist. The Commonwealth passed legislation in 2010 that protects anyone involved in the publication of news but the NSW legislation of 2011 narrowed it down to those in “the occupation of journalist in connection with the publication of information in a news medium”. Victoria and WA seem set to follow the NSW threshold.

Journalists are also under pressure from various “star chambers” to reveal their sources. These chambers are extra-judicial bodies in every state with power to investigate police and public service corruption. While the aims may be laudable, they have extraordinary coercive powers including the power to compel witnesses to produce evidence or other “things” (the definition at the discretion of the court) to help the investigation. Some can even deny witnesses their legal representation, a staple of all other courts. Journalists Linton Besser and Dylan Welch were served subpoenas to produce mobile phones and SIM cards after they wrote articles critical of the NSW Crime Commission. The Commission eventually backed down  from the request.

Other issues the MEAA looked at in their 2012 report include restrictive access to detention centres, the growing menace of spin and the “comment cycle” (which is replacing hard news), the growth in suppression orders, a review intocopyright exceptions  in the digital environment, the Convergence Review and concentrated media ownership and continued need for the public broadcasters ABC and SBS.  

Convergence Review review

The Convergence Review final report released today by the Federal Government is an intriguing document with a raft of new proposals aimed at solving a problem in our media legislation: communications law differing by type.  The fact print and internet journalism is the remit of a different independent inquiry shows politicians still like to make these distinctions.

Australia’s content services policy and regulatory framework is focussed on what was around in 1992: broadcasting and telecommunications. But in real life the networks of the way we communicate are extremely complex and interchangeable. Convergence of computers, televisions and telephones and the plethora of services afforded by digital technology have the left the law looking like an un-updated ass.  

Issues over ownership, regulation, promotion and standards cannot be resolved using existing media laws, most of which were bastard political compromises in the first place designed to suit Kerry Packer and Rupert Murdoch. Overregulation was rife and there were absurd contradictions about what was legal and what wasn’t depending on the technology used. 

The drafters of the Convergence Review (chaired by my former IBM Australia boss Glen Boreham) had a noble remit: "Citizens and organisations should be able to communicate freely,” they said “and, where regulation is required, it should be the minimum necessary to achieve a clear public purpose.”

Their libertarian conclusion: the licensing of broadcasters should stop and with it would go the cost of administering those licences. Instead broadcasting spectrum pricing would be brought in line with other types of radio-communications spectrum.  The so-called “sixth channel” would be allocated to a range of providers to maximise diversity.

The Review was less laissez faire about media ownership, content standards and local content protection. On ownership, the Review was well aware markets like Australia can (and have) become distorted. Some regulation is necessary, it said to maintain a diversity of views. They proposed abolishing a raft of rules such as the ‘75 per cent audience reach’ rule, the ‘2 out of 3’ rule, the ‘two-to-a-market’ rule and the ‘one-to-a-market’ rule by a  ‘minimum number of owners’ rule and a “public interest test.”

Diversity was also used as the reason to intervene in the area of local content “If left to the market alone, some culturally significant forms of Australian content, such as drama, documentary and children’s programs, would be under-produced,” it said.  Though it is questionable whether government should be picking winners this way, most taxpayers don’t seem to resent money going into organisations like the ABC.

Citizen standards were cited for the third area of government intervention in the media market. Media and Communication services, said the document, “should reflect community standards and the expectations of the Australian public. As an example, children should be protected from inappropriate content”. Again, this is something that most people see as an acceptable use of taxpayers’ money.

Geography rules have been a major problem of media legislation over the years and I am not sure the Review is fixing that with its solution to lack of media ownership. It suggests a ‘minimum number of owners’ rule to ensure that no media operator has a dominant influence in a local market for “news and commentary”.  But the  "local market" definition is to be abolished and the Reviewers have not stated what should replace other than leaving it to the regulator to define

It is also in danger of over-regulating in response to local content rules. The same rules for content across platforms is a good idea and a “new communications regulator” (replacing the Press Council and ACMA) who would conduct “a public interest test” seems laudable but the public interest is such a contested concept, I wonder how it will operate.  

Similarly the “‘uniform content scheme” to police local content production is beset with difficulties. The scheme will force “qualifying content service enterprises, with significant revenues from television-like content” to put dollars into Australian drama, documentary and children’s programs. I suspect the idea of “television-like content” will seem very dated in ten years and again, who is to say what is like television?

The qualification for this scheme will make many content providers nervous and anxious to fall just under the qualification mark for revenue. The “service” provisions may force borderline profitable operators in drama, documentary or children’s programs to get out of those markets entirely. If as the Review says, Australians prefer local content, then why not have faith in the market to provide a good product at profit? Everything else is just tariff walls. Nevertheless the document is a good addition to the debate on media regulation and will no doubt be chopped to pieces by politicians before any of its recommendations are adopted.

Certainly Stephen Conroy spoke in polished non-committal language announcing the Final Review today. “The release of the report provides an opportunity for stakeholders to engage with the Committee’s recommendations. I expect the recommendations will generate robust public debate,” Senator Conroy said. “The government will respond to the report in due course.”