New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
TPP trade deal now racing towards vote
In a development with immense implications for Australia, Barack Obama pulled an iron out of the fire this week when the United States senate gave him fast-track negotiating authority to push the controversial Trans-Pacific Partnership trade agreement to an early conclusion.
Manoeuvring ahead of next year’s presidential election also played a part, with Republican aspirants Rand Paul and Ted Cruz coming out against the TPP, and Democrat frontrunner Hillary Clinton equivocating about what had been the key economic element of the “pivot” to Asia she claims to have authored while Obama’s secretary of state in his first term.
As Maureen Dowd wrote in The New York Times: “It’s hard being Elizabeth Warren. Especially when you’re not Elizabeth Warren.” She was referring to the senator from Massachusetts pushing Clinton from the left flank , along with labour unions, environmental groups and consumerists.
Australia is one of the 11 nations negotiating with the Americans on the TPP, with economies adding up to 40 per cent of global activity. The deal is almost as controversial here. Trade Minister Andrew Robb is insisting the deal is good for us, strengthening in particular trade in services and knowledge-based industries. Unlike the US, we don’t have much manufacturing at stake from opening access to the poorer TPP members such as Vietnam, thanks in part to the mining boom. But the enhanced protection for pharmaceuticals could cost the federal budget or consumers dearly. Inclusion of investor-state dispute settlement by commercial arbitration is also a worry.
The secrecy surrounding the negotiations, with US congressmen allowed a sighting of draft chapters but not allowed to talk about them while some 600 industrial “stakeholders” have privileged access not given to public-interest groups, has only added to the controversy. It’s been mainly thanks to WikiLeaks that the aura of mystery around this “modern” and “21st-century” trade pact has been penetrated.
The fast-track authority allows Obama to move to a final draft agreement, then bring it to congress for a yea-or-nay ratification. Effectively Tony Abbott’s cabinet has the same power here. The next hurdle for Obama may be just as hard: getting Japan’s Shinzō Abe to accept TPP market-opening measures in agriculture and services. This could be the key test of “Abenomics”, the prime minister’s strategy to revive Japan’s long stagnant economy. With fiscal spending and credit expansion already at the limit, the TPP has emerged as virtually the same as the “third arrow” of Abenomics: deep structural reform.
Abe is meanwhile taking it to the Chinese elsewhere in Asia. Earlier this week a Japanese navy patrol aircraft took a low-level spin around a part of the Spratly Islands that is claimed by both China and the Philippines, the first of what could be a series of patrols and transits in the region by Japan.
The Japanese P-3C Orion took off from a Philippine airfield on nearby Palawan Island and had three Filipino observers on board, so it was pretty clear which side of the Reed Bank dispute Tokyo is supporting. It was all just a “search-and-rescue” exercise, the Japanese said, while Beijing called it “meddling”.
Japan is also flashing money around Asia, to counter China’s offer of massive credits for infrastructure. A leader in Japan’s post-industrial business world, Masayoshi Son, was in Delhi this week to announce that his company SoftBank would join Taiwan’s electronics giant Foxconn and Indian telecom firm Bharti Enterprises to invest $US20 billion in solar and wind energy projects in India. (We are offering India more coal).
Abe’s transport minister has also just signed an agreement with Thai coup leader Prayuth Chan-ocha’s government to work on a bullet-train link between Bangkok and Chiang Mai, costing the equivalent of $A10 billion. Reports say Japanese finance is being offered at an interest rate of 1.5 per cent, a full point below the going Chinese rate.
With the Abbott government’s new legislation to remove the Australian citizenship of dual nationals fighting with terrorists hitting parliament this week, the question is surely becoming more moot about what comprises “fighting with” and who exactly are the terrorists.
Up to now the government has got away with declaring all insurgent groups to be as bad as each other, and making any travel to Islamic State-occupied regions such as al-Raqqa in Syria or Mosul in Iraq a terrorist offence. Yet public sympathy would be with some groups fighting IS, such as the Kurdish militias in Iraq, which after all are being helped by the Royal Australian Air Force, as well as those in Syria.
Several Westerners have volunteered to fight with the Syrian-based Kurdish People’s Protection (YPG) movement, including Canberra man Ashley Johnston, who was killed in fighting in February. The YPG has been pushing the IS back in recent weeks from a key border crossing into Iraq and from a military base near the main city of the proclaimed IS caliphate, al-Raqqa.
Now the US Defence Department is also moving to get some boots on the ground in Syria, just not American ones. Last month the US Special Forces began training Syrian volunteers at sites in Turkey and Jordan, with the aim of fielding 5400 fighters of a “moderate” tinge within a year. They will be paid $US250 to $US400 a month. So far about 6000 Syrians have applied, with 180 already making it through the screening. Whether they make any difference to the multisided conflict in Syria remains to be seen, but the US exercise makes it harder for Abbott to argue there are no “good guys” in the fight.
As a Middle East specialist with the Atlantic Council, Faysal Itani argued this month it won’t be the US or its allies that decide this conflict. “The main obstacle to the group’s expansion in Syria is the range of insurgent groups deriving their support and recruits from the Sunni Arab and Kurdish populations, almost all of whom are hostile to the Islamic State,” Itani notes in a recent essay on “The Limits of Islamic State Expansion”.
“It is these numerous brigades and coalitions, including the Syrian Revolutionaries Front, Islamic Front, Southern Front, and the Kurdish YPG, that inflicted the most significant defeats on the Islamic State and frequently blocked its efforts to expand beyond the sparsely populated provinces of Raqqa and Deir al-Zour.”
Last year’s 50-day war in Gaza came back into view this week with the issue of a report by a commission of the United Nations Human Rights Council that found “serious violations of international humanitarian law” possibly amounting to war crimes by both Israeli and Palestinian militants.
Both Israel and Hamas, which rules Gaza, rejected the parts of the report that implicate them. It seems unlikely to lead to any war crimes processes in the International Criminal Court, or domestic prosecutions by Israeli and Palestinian authorities. In the course of the conflict, 2251 Palestinians were killed (1462 of them civilians) and Gaza city bombed out. Israel’s casualties were 66 soldiers killed in fighting, and six civilians killed by rockets fired from Gaza. All this escalated from one horrific crime: the abduction and murder of three Israeli teenagers by two Hamas members.
Warning the tsar department. US Defence Secretary Ashton Carter started his European tour this week by calling Russian President Vladimir Putin a “malign influence” and indicating the US would station several thousand troops in Poland and place 250 tanks and other armoured vehicles around six worried countries of Eastern Europe.
His stop in Estonia included talks with all three Baltic states, and coincided with a naval exercise involving a US Navy amphibious landing ship.
Putin was not too rattled by what retired US general Mark Kimmitt admitted was a “symbolic” deployment. The armoured units add up to one combat brigade, which in the Cold War would have been stationed to defend just a part of then West Germany. “We are now talking about taking one brigade combat team and splitting it among these six countries,” Kimmitt told CNN. “That should hardly be seen as a threat to Russia.”
The Russian leader had already upped the ante by announcing Russia would add 40 new intercontinental missiles to its nuclear arsenal. But he tells everyone not to worry. “We are not aggressive,” Putin said at an economic forum in St Petersburg. “We are persistent in pursuing our interests.”
The running battle between the federal government and the intelligence official known as Witness K continues to develop, with potential collateral damage for some of the senior lawyers involved.
As we recounted two weeks ago, Witness K led a team from the Australian Secret Intelligence Service (ASIS) that bugged the cabinet room of the Timor-Leste government in October 2004, while Timor and Australia were negotiating the terms of petroleum development in the area straddling their temporary maritime boundaries. The negotiations led to an agreement in 2006.
Witness K was unhappy about this activity, then had an issue with ASIS when it later became clear his career prospects were limited by his chief’s professed wish for “generational change”. Correctly, he went to the spy world’s watchdog in Canberra, the inspector-general of intelligence (IGIS)and security, to find out avenues for redress. Along with internal appeal, the inspector-general suggested, “You could pursue private legal action”. So he took his case along to Bernard Collaery, a former ACT attorney-general whose clients have included many intelligence personnel.
Collaery was also acting for the Timor-Leste government. After careful study, he concluded the Dili bugging operation was outside the proper functions of ASIS and therefore illegal. As such it was not improper to inform the Timorese about the bugging − which Dili is now using in arbitration at The Hague to have the 2006 agreement nullified. Meanwhile, the Australian Security Intelligence Organisation (ASIO) raided Collaery’s office and seized his case documents, which have only recently been returned after a separate action in the International Court of Justice (ICJ).
An account of the saga by Collaery at the Australian National University’s law school (available on its website) earlier this month makes riveting reading. Collaery is particularly incensed at charges made at the ICJ by Solicitor-General Justin Gleeson and his team that Collaery and other Timor-Leste representatives were complicit in the breach of official secrecy laws by Witness K. Accused of criminal activity, Collaery felt obliged by legal convention to withdraw from his role with Timor-Leste.
“The grave accusation of concurrent wrongdoing by Witness K and myself, apparently on the instructions of [Attorney-General] Senator Brandis, without reference to the fact that Witness K and the author [Collaery] had authorisation from the [IGIS] to, among other matters, pursue private legal action, raises important issues concerning professional conduct,” Collaery said, helpfully pointing to New South Wales Bar Council rules against making misleading statements to a court and to precedent against accusing the other side of criminality.
Meanwhile, federal prosecutors are not rushing into court with an Australian Federal Police dossier, completed in February, on Witness K’s perceived breach of official secrecy. It remains to be seen whether concerned legal figures take up Collaery’s complaint against Brandis and Gleeson with the Bar Council. Possibly the council and the NSW Law Society could look at whether any of their members on Australia’s Timor Sea team saw and used transcripts from the ASIS bugging to help their negotiations.
This article was first published in the print edition of The Saturday Paper on Jun 27, 2015 as "TPP trade deal now racing towards vote".
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