MPs Who Do Not Have Citizesnhip Of New Zeland

Now would I misspell a title twice?  Read on and all will be revealed ...

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Scott Morrison (Liberal, Cook)

Today there was a curious development in the long-running Section 44 citizenship farce.  Margaret Simons in the Guardian reported that Prime Minister Scott Morrison appears to have given incomplete/incorrect citizenship declarations that fail to address a manner in which he could in theory have become a citizen of New Zealand.  That is not to say he is a citizen of New Zealand, but that his explanation of why he is not is apparently wrong, or as Dr Anna Hood puts it in Simons' article, "problematic".

Simons has published that fine print in a change in New Zealand law, passed in 1948 and effective 1/1/1949, conferred full citizenship on then-living females (but not males) who were the offspring of British subject fathers born in New Zealand.  That full citizenship then allowed the offspring of those females to be potentially registered as New Zealand citizens by virtue of being "the minor child of a New Zealand citizen".  If so registered, they would now be ineligible to sit in the Australian parliament under Section 44, unless they had subsequently renounced.  (The British Nationality and New Zealand Citizenship Act 1948 was repealed effective 1 Jan 1978 by the Citizenship Act 1977, but those who were citizens under the former Act at that stage remained so. For this reason as well as Morrison no longer being a "minor child", there is no issue of an existing entitlement to become a citizen.)

Submission To Tasmanian Electoral Act Review

Initial submissions to the review of the Tasmanian Electoral Act close today.  The review was mainly prompted by issues raised (mostly during the state election, but also during previous state elections) concerning:

* authorisations for social media posts

* restrictions preventing naming candidates without their permission in certain kinds of material

* restrictions preventing newspaper coverage on election day

* lack of state-specific donation requirements

* issues with involvement of non-party actors in the electoral process (the call for submissions singles out unions, though in 2018 there was far more concern about gambling interests)

A Free Speech Problem With Marriage Law Survey Safeguards

Advance Summary

1. This article raises concerns about specific "hate speech" prohibitions in the Government's Marriage Law Survey (Additional Safeguards) Bill 2017.

2. This article argues that Sections 15(1)(a) and (b) place unreasonable constraints on free speech by making political opinions attributes that are protected from "vilification", contrary to the normal practice of anti-vilification laws.

3.The ability to express strong criticism of people who present offensive or unfactual opinions serves as an important deterrent against expressing such opinions in the first place.

4. Many aspects of the proposed Sections and the limited exemptions available are insufficiently clear to a lay reader and involve a novel area of Australian anti-discrimination law.

5. Sections 15(1)(a) and (b) should be amended so that they apply only to intimidation and threats and not to "vilification". 

6. If this does not occur, then the debate surrounding the postal survey is not an adequately and clearly free and fair environment for the frank exchange of opinions and criticism.

Will "Hate Speech" Be Illegal In The "Plebiscite"?

Things are moving fast in the Government's attempt to conduct a national voluntary postal vote on same-sex marriage.  Although we won't get to the High Court challenge against the "survey" until September 5-6 - meaning we might be a month away from knowing if the thing is on at all - a lot of questions are being raised and in cases answered about how exactly the plebiscite will be conducted, if it does proceed.  A major problem with the exercise has been that since it is not an Australian Electoral Commission process authorised by an act of Parliament, normal election requirements (authorisation, fraud and vote-buying protections and challenges) do not exist unless separately provided for.  In Thursday's instalment (Electoral Process, But Not As We Know It: Postal Plebiscite V2) I mentioned that at least regulation would be needed to get around these problems.  However the regulations available under legislation concerning the ABS are very limited concerning penalties.

In a welcome move, acting Special Minister of State Mathias Cormann has flagged the stronger possibility of special legislation to impose AEC-election-like conditions for the, er, whatever it's called.  This would create the really strange situation of the Senate approving laws governing a postal vote that the Senate had itself not approved and would have blocked if asked to approve it.  Such laws might themselves be subject to challenge.  The most important aspect of this debate for me, though, is the incorrect impressions of the impact of such possible laws that we are seeing in the media.  The SMH and ABC have referred to them as "ground rules for a fair and respectful debate on same-sex marriage", rules that would "stop hateful advertising material being distributed" and as protections against "malicious publications".  It isn't so.

Proposed Anti-Discrimination Changes And "Don't Mess With Marriage"

The Tasmanian Government has introduced the Anti-Discrimination Amendment Bill 2016.  This differs little from a draft version that was circulated for public comment, but a notable change is that the proposed addition of a reasonableness clause has been dropped.

This is the second consecutive government to try to amend the fabric of free speech in the state.  The previous Labor/Green government introduced particularly extreme changes which were fortunately thrown out by the Legislative Council.  The latest proposals are nowhere near as concerning but they still raise some serious issues about the fair and clear application of the law to a range of differing beliefs.

There are two main backgrounds to the proposed changes.  The first is the complaint by Martine Delaney against the Catholic Church over the circulation of a booklet entitled Don't Mess With Marriage, a modestly worded but in places highly insulting defence of supposed church creed against same-sex marriage.  The complaint attracted high-profile attention and at times was frothed about in the opinion sections of the Australian on a more or less daily basis.  In fact, all that happened was the complaint was sent to conciliation as quite clearly required by the law, and we never found out whether the booklet actually breached the law because the complaint was dropped after the conciliation stage.

Nil-All On Anti-Protesting

Last night the new Tasmanian state Liberal government fulfilled one of its election promises by passing the Workplaces (Protection From Protestors) Bill 2014.  This bill was mainly inspired by a desire to crack down on anti-forestry protestors who obstruct lawful businesses.  We haven't seen that much of that sort of thing lately in Tasmania, but based on the new government's attempts to rip up what it can of the forestry "peace deal" passed during the last government's rule, we may be seeing more of it quite soon. Anti-forestry protests are considered a problem not just because of the obstruction to workers they create, but also because the ease of conducting illegal anti-forestry protests greatly assists activists to gain media coverage that helps in their attempts to damage the industry's brand.

The Anti-Wilkie Denison Billboard Stoush

What's all this about, then?

Denison independent Andrew Wilkie has taken exception to a billboard that shows him shaking hands with Tony Abbott, next to a slogan "IF ANDREW WILKIE WINS DENISON,  {big space} TONY ABBOTT IS ONE VOTE CLOSER TO BECOMING PRIME MINISTER" and above a slogan "VOTE WILKIE = GET ABBOTT".  See photo here.  Wilkie has claimed the billboard to be defamatory and misleading (here).  ALP national secretary George Wright replies here.

What does the billboard actually mean?

A billboard has a received meaning that goes beyond just the literal meaning of the words.  In this case, a handshake implies a deal, and the billboard therefore alleges that Andrew Wilkie either would deal with Tony Abbott, or has already dealt with Tony Abbott, in a way that could cause Abbott to become Prime Minister.   Lin Thorp's claim that there is no intent to imply a deal is irrelevant even if it is true, which it probably isn't.  The implication exists whether it is intended or not.

Is it true based on Wilkie's own statements that Wilkie winning Denison instead of Labor could cause Abbott to become Prime Minister?

Nothing To See Here, Just The Future Of Free Speech In Tasmania

(Update 27 Sep: This has been resolved now, see updates at bottom of article)

Today, or at least in the next few days, the Legislative Council may determine the future of free speech in Tasmania when the Anti-Discrimination Amendment Bill 2012, passed on party lines by Labor and the Greens late last year, finally makes it to the top of the pile.

Of particular concern is the proposed amendment to Section 17.  This amendment, which ostensibly deters bullying and redresses inconsistent aspects of existing legislation, would make it an offence to ridicule, insult, offend or humiliate (as well as "intimidate", which I have no problems with) someone on the basis of their political or religious beliefs, affiliations or activities, assuming that the person doing the offending (etc) could have reasonably known their comments might offend (etc).  There is not even any caveat to protect comments of such a sort if they are public acts done in good faith for the public interest.

What is an independent liberal?

This article could also have been called "What is an Independent Liberal?"  However, they are apparently not the same thing!

A revealing piece of campaign colour in the most exciting (but I'm not expecting it to be the closest) Legislative Council race, Nelson, involved the race's most obscure and recently announced candidate, Hans Willink.  Here is a Willink sign photographed at a well-known sign location at the city end of the Southern Outlet. 

The photo was taken with flash at night,  and the blue is actually quite a bit darker than it appears in this photo.  About halfway between the above and black.

Until today I'd seen no coverage of this one in the southern press, but Calla Wahlquist in The Examiner (April 22 page 4) thought it was interesting and so do I - mainly because it touches on two of my pet themes, namely (i) electoral law beat-ups and (ii) the Liberal Party's deceptive self-labelling.  What's happened here is that the Liberals have tried to get a bit heavy against the upstart minnow candidate.  Liberal Party state director Sam McQuestin is quoted as describing the combination of wording and colour of the signs as "a blatant attempt to deceive the voters of Nelson into supporting [Willink] as a member of the Liberal team".

LegCo Spending Limits Create Confusion

This site will have live election-night comments on all three electorates, from 6 pm 4 May.

(For election night, comments will still be subject to clearance but registration will not be required to post comments.)

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This is another in a series of articles about the 2013 Tasmanian Legislative Council elections.   Existing instalments include:

My Legislative Council Candidate Guide

Nelson LegCo Polling

I also have articles about the forestry peace deal, LegCo voting patterns and same-sex marriage.

Upcoming articles include my comments on the Nelson debate (see Simon de Little's video here if you missed it or want to relive it) with a roundup of other Nelson issues, which may be released in the next week or so.  These were originally in this article but I have held them back because it was too long and the Nelson-specific remarks did not mesh well with this issue, which involves all the electorates.  I will also have detailed projection attempts for at least Nelson and Pembroke which will be released sometime during election week.  To save the suspense in the case of Pembroke, I expect Vanessa Goodwin to win, and that it won't be close.  In Nelson there is a strong modelling and polling based case that Jim Wilkinson should win easily, but the nature of the contest is distinctive, and I don't consider it to yet be cut and dried.  This article explores one of the reasons why the fight for this seat could yet be competitive. 

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Over the last fortnight, the lobby group Tasmanians United for Marriage Equality (TUME) has been letterboxing the Legislative Council electorates of Montgomery, Pembroke and Nelson with leaflets.  These leaflets, versions of which are currently available on the TUME website,implore voters to "vote for marriage equality".  The initial versions contained pictures and names of most of the then-known intending candidates and ticks and crosses indicating their perceived positions on the issue.  The current versions indicate the three candidates who are known to be opposed to state-based same-sex marriage (Jim Wilkinson (Ind, Nelson), Vanessa Goodwin (Lib, Pembroke) and Leonie Hiscutt (Lib, Montgomery)) simply with large red crosses and wording such as "The current representative" or "The Liberal Party candidate", as well as ticks for two supportive candidates in each electorate.

An Open Letter to Brian Wightman

Dear Tasmanian Attorney-General Wightman,
Recently I posted about my concerns about a proposed amendment to the Tasmanian Anti-Discrimination Act (Anti-Discrimination Change Requires More Scrutiny).  This amendment, ostensibly designed to control bullying, appears to go much further and potentially have a major impact on various forms of political speech in Tasmania.  I've now seen the Hansard transcript of the debate in which Elise Archer (Liberal, Denison), Michael Ferguson (Liberal, Bass), Brian Wightman (Labor, Bass) and briefly Kim Booth (Green, Bass) spoke (the amendment passed on party lines), and I've posted all the relevant excerpts up on Google Docs for anyone interested. It's notable that Ms Archer not only raised the same concern I raised about the lack of a proper free-speech exemption for the new Section 17, but also quoted from a long letter by the Hobart Community Legal Service Inc raising many concerns about the proposed change.

(As there have been problems for Liberal lawyers who interact with shady characters recently, I advise that I did not have any accidental coffees with Ms Archer prior to her quoting me.  Indeed, I did not know that she had seen the piece at all!)

I'm going to make some comments about my view of your speech and what I think it says about your political views, and then at the end I'm going to ask you a question.  And I'll ask it now too:  if your amendment is passed by the Legislative Council, will this open letter still be legal?  I ask this because nothing you have said so far has reassured me that it will be.  But I think that everything I say in it consists of the sorts of things that people should be allowed to say - and that it should be totally clear that people will be allowed to say.  It isn't.

Of course, I agree that the amendment, if passed by the LegCo, does not simply ban all communication someone finds offensive, and some of the criticisms may have overestimated the impact in this regard.  A person must be offended, humiliated, intimidated, insulted or ridiculed on the basis of their political or religious views or some other attribute, and it must be the case that a "reasonable person"  "would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed." 

But that's just not nearly as big an obstacle as you think it is, and I don't think you have any real idea of why.  Take this from your speech for instance:

Anti-Discrimination Change Requires More Scrutiny

(See also later article An Open Letter to Brian Wightman)

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Advance Summary:

1. A proposed amendment to Section 17 of the Tasmanian Anti-Discrimination Act, designed to address bullying, is flawed by appearing to carry unintended consequences for political speech and lacking appropriate, explicit and prominently-debated exemptions in this area.

2. The proposed amendment should not be passed by either House of Parliament in its present form.
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Skimming the Sunday Tasmanian, which I buy mainly for the TV guide, I came across a piece on pp. 74-5 (sigh) by Simon Breheny. (This is now online here.) The piece argued that proposed changes to the Anti-Discrimination Act will curtail free speech in Tasmania, mainly by greatly extending the grounds on which it is an offense to "offend, humiliate, intimidate, insult or ridicule" someone. 

This piece had many signs of something I should not expect to take too seriously.  It was headlined "Attacks on free speech" (the sort of headline that usually indicates simplistic and invalid tabloid melodrama.)  It was written by a law-student "lobbyist" for the Institute of Public Affairs (a self-described "free-market think-tank" with a dubious historic form guide), and worst of all it tried to curry sympathy for Andrew Bolt.