Why News Limited is too embarrassed to properly cover new counter-terrorism laws

Democracy is threatened by the constraints on the media.

I can't claim ownership of this sanctimonious motherhood statement.  It was the opening line of an editorial in The Australian on 6 November 2007 just before the Federal election of that year.

It went on to proclaim: "When it comes to media freedom, it should be second to none."

No qualifications. No caveats. Media freedom trumps everything else.

Now some may disagree with this proposition. This Government does. The last Government did. The security agencies do and so do many public servants. So do I as it happens; in western democracies no rights are absolute. A balancing of rights is required when they come into competition, as they often do. Similarly, in limited situations, the public interest in good government decision making and public safety may take precedence over the public interest in full transparency.

However, it is not the purpose of this piece to have an academic argument about press freedom. Rather, it is to highlight the rank hypocrisy of News Limited papers in recent weeks in the debate over new national security laws and also the breadth of those laws in relation to the press.

Between 2007 and 2013, News Limited papers used the club of press freedom to batter Labor governments: freedom of Information, privacy laws, media regulation, court suppression orders, journalist shield etc etc.

So I was surprised to read the editorial of The Australian this week with the headline "Terror laws protect unity rather than undermine it".

"GNASHING of teeth about anti-terror measures disrupting social cohesion is often misplaced and overblown.....  As reported today, we now know Islamic State spokesman Abu Mohammed al-Adnani has called on followers to unleash violence against this nation. We need not be apologetic that thwarting this goal should remain our top priority.

How times have changed. Seven years ago, media freedom was second to none. Now preventing "violence against this nation" trumps everything. In another editorial by the paper last week it became clear that The Australian was now on board with the Prime Minister’s argument that certain rights had to be traded off to keep the community safe.

"So far the extended powers proposed by the Abbott government seem to strike a reasonable balance between its obligations to keep the community safe and preserve its freedoms."

Of course, times change; not least the view of News Limited papers about who the real enemies are. In this case, it is not supporters of ISIL. Rather, the Australian has in its sights those on the left that are critical with the scope of the laws. Just like everything else in recent years, this debate gets transformed into the one-dimensional culture war that fascinates News Ltd, particularly in the offices of the editors in Holt Street in Sydney and Bowen Hills in Brisbane, but no-one else.  In this culture war - on the left and right - critical thought goes out the window. That becomes much clearer from the editorial last week in the Daily Tele - "Denial won't stop this evil madness".

"MANY on the political Left, particularly from the ABC, have either dismissed or downplayed the threat of terrorism since Australia’s terror alert level was increased in recent weeks."

"To give one example, former ABC Media Watch host Jonathan Holmes complained t this week about “more and more laws to stop terrorists” while there were “fewer and fewer measures to limit greenhouse gas emissions. And of course, no carbon price”."

In three sentences, the paper managed to pull together their culture war hobby-horses: the ABC, climate change, the political left and terrorism.

I won't bore readers any more with this predictable diatribe; in most part because I will lose most of you who will have already have switched to something more interesting.

However, there is an interesting back story to these new laws that I was a part of that not only help explain their provisions but also make the acquiescence of News Limited papers even more galling.

Let me take you back to July 2009 and the high profile anti-terrorism operation Operation Neath that captured headlines at the time. At that time I was working as an adviser for the then Attorney-General Robert McClelland. Our attention had been consumed by the National Labor Conference - Kevin Rudd had gone AWOL  and the Labor delegates at Darling Harbour were at each others throats over gay marriage and parallel import arrangements for books. 

Mid-afternoon during one of the days of the conference a call through from McClelland's media advisor informing us that a journalist from The Australian had found out that raids would be conducted in coming days on suspects houses as part of Operation Neath. The journalist had called him and was proposing to go to press the next day. I am not breaking any confidences or committing any offence in telling this story because the events were subsequently canvassed in the Melbourne Magistrates Court.

The concern of the AFP and McClelland at the time was that the publication of the information about the raids ahead of time would compromise them by tipping off the suspects. Over the coming hours, the media advisor and other government officials begged, cajoled and pleaded with the journalist to hold off from publishing the story. But he wouldn't be swayed, nor would his pugilistic editor Paul "Boris" Whittaker - now editor of the Daily Telegraph - who aggressively asserted the right of the free press to publish the story.

Late that evening, it was only after Boris and Chris Mitchell demanded and received a commitment from McClelland that his paper be given the exclusive about the details of the raid after it was conducted, that he agreed to hold the story. Security and law enforcement agencies were furious but they had little choice but to agree in order to prevent the publication of the story. And so The Australian got its inside story.

So it is no surprise that those agencies pushed hard for new provisions in the Australian Security Intelligence Organisation Act 1979 to prevent such an incident occurring again. Yet with the Daily Telegraph and Boris Whittaker on the morphine drip of stories from the Abbott Government, it is also no surprise their tune has changed. Or maybe they are just embarrassed they are the cause of the new laws.

There have been some fine pieces recently written by Katherine Murphy in The Guardian and Laurie Oakes (notably in the News Limited papers) about the failure of most of the media to cast a critical eye over the laws. They are strong reminders that it is not the role of journalists to be a cheer squad for government, opposition or any other cause. It is to question, probe and challenge those in authority. I like Murphy's analysis of part of the problem-

"Any objective look at the week would present a report card that said: running too fast, filing too much, revealing too little."

Among Murphy's and Oakes' principal concerns is Schedule 3 of National Security Legislation Amendment Bill (No. 1) 2014 dealing with so-called "special intelligence operations". Authority to launch such operations can be granted if the Attorney-General (originally the Director-General or deputy D-G of ASIO but the Government amended their Bill in the Senate) is satisfied on reasonable grounds of a number of factors including:

·       the special intelligence operation will assist the Organisation in the performance of one or more special intelligence functions;

·       the circumstances are such as to justify the conduct of a special intelligence operation;

·       any unlawful conduct involved in conducting the special  intelligence operation will be limited to the maximum extent consistent with conducting an effective special intelligence operation.

Clearly, it’s all pretty general and vague, leaving a great deal of discretion to the decision maker. And once permission has been given for such an operation the new laws provide for heightened protection of the special intelligence operation, including a new offence of "Unauthorised disclosure of information". Under a new s. 35P of the ASIO Act a journalist would commit an offence if they disclose information and the information “relates” to a special intelligence operation.

Again it is the broadness of the provision that is problematic. The offence simply requires that the disclosed information relates to a special intelligence operation. The conduct giving rise to the offence it is not time limited and indeed could occur after an operation has finished. It also extends to operations conducted overseas. Further, those found guilty under the provision face higher jail terms of up to 10 years if "the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation".

The meaning of the term "prejudice the effective conduct" is in the eye of the beholder and the journalist bears the onus of proving that they fall within one of the exceptions to the offence provision. 

Once again, the actions of News Limited have made it harder for all journalists.

Dispatch from the national wind farm battleground

Just over one hour's drive outside Canberra is the heart of the national battleground against wind farms.

While the anti-windfarm movement had its origins further south in Victoria, the epicentre of the battle are now the ridge lines and green rolling paddocks of the Upper Lachlan and Southern Highland regions.

This is prime agricultural country where farming families live side by side with the wealthy weekend Sydney hobby farmers, joined together by a distrust of their new neighbours.

It may appear an eccentric protest group of right-wing warriors and sceptical farmers but supporters of wind energy and clean energy companies have underestimated the strength of the campaign against them on the ground. As a result, those companies are now  behind the eight ball.

The opposition is small but they carry enormous clout through the involvement of high-profile individuals  who own properties in the region like Alan Jones and Maurice Newman - close confidants of Tony Abbott.

A grassroots opposition movement is reinforced through the national press by these high-profile individuals with megaphones.

At the Federal election, the region elected another high profile opponent of windfarms, former management consultant and member of one of the region's landed gentry, Angus Fraser. During the campaign, while Tony Abbott was promising to stop the boats, Taylor promised locals he would help stop the turbines.

The Coalition Government is now set to move on the Renewable Energy Target and the introduction of real-time noise monitoring for windfarms, and renewable energy companies are increasingly fighting an uphill battle in the paddocks and hills of the Yass Valley and Upper Lachlan.

It is no coincidence that in giving the clearest sign yet that his government intended to water down the RET, Tony Abbott cited the turbines reaching to the sky at Canberra's gateway, Lake George.

“If you drive down the Federal Highway from Goulburn to Canberra and you look at Lake George, yes there’s an absolute forest of these things on the other side of the lake near Bungendore,” he said.

“I absolutely understand why people are anxious about these things that are sprouting like mushrooms all over the fields of our country. I absolutely understand the concerns that people have.
Newman - chairman of Abbott's Business Advisory Council -  also got out of the blocks early this year to soften the political ground for a move on the RET.

"Where is the media scrutiny?" hyper-ventilated Newman in a national newspaper.

Anecdotally, at least there are signs the anti-windfarm campaign has won traction in the region among locals.

A trip to the Gunning windfarm owned and operated by Spanish company Acciona last year highlighted to me the problems clean energy companies and their supporters now face. Wind farm companies are desperately trying to win hearts and minds and open days are a key part of their strategy. But if some of the locals on the bus out from Gunning last weekend for one such open day are any guide there is still much work to be done in counter-acting a grassroots campaign with a real head start.

The introduction of exclusion zones in Victoria and low wholesale prices in South Australia restricting the ability to build new wind farms means that NSW is where wind companies are directing much of their attention.

The Upper Lachlan and Goulburn has a great wind resource, which whips over the ridges with a dull roar and powers the 81 metre turbines.

In close proximity to the Acciona wind farm are Origin's 30Mw Cullerin and Goldwind  Gullen Range project, which is under construction and will have 73 turbines when completed. It's not quite a forest of wind turbines but it is getting crowded.

"I don't mind one or two, but there are so many of these windfarms that they all become one," said one local farmer surveying the countryside out of the bus window as we drive out to the Acciona facility. When not remarking on the turbines she and her husband spent the time identifying the owners of the properties we passed and those who had been unable to get compensation for windfarms on their properties.

Not everyone on the tour is so indisposed to wind-farms. Some university students from the Australian National University spend the trip out discussing heady topics of consumerism and environmentalism, pausing sometimes to glance out the window to look at the sentinels of the ridges.

"They're pretty cool. Funny how people find them unpleasing ya ?" says one student.

Another is Labor senator, Doug Cameron. Cameron has chaired two Senate inquiries into wind power and his views have been heavily influenced by witnesses like Simon Chapman at the University of Sydney who have identified the "nocebo" effect.

Despite conducting the "Stop the world I want to get off" inquiries, it is Cameron's first trip to a wind farm and he is keen to see for himself an operating wind farm.

"In English speaking countries there are problems but in non-English speaking countries nothing. If you tell people they are going to get sick and tell them again and again they will," he says.

"We got a lot of evidence of the farmers who have turbines on their properties and are getting paid having no problems. But those next door - who are not getting paid - complain. People up to 10km say they can hear it!"

The Gunning windfarm has 31 turbines and produces double the energy needs of Goulburn - the region's largest town.

When we arrive, site manager Craig Simon jumps on the bus to give his spiel. A former control room operator at a coal fire power station for 20 years, Simon says he wants to make amends for his past.

"I look at it and see I have a due to pay for burning literally thousands of tonnes of coal. I love my job and I am very proud to show you my workplace," he announces.

Landowner Alan McCormack is also on hand to meet the arriving bus. His sheep gather in clumps in the shadows of the turbines and Simon explains they appear to have a "turbine fetish". Simon won't disclose what McCormack is paid for the use of his property but says it has effectively "drought proofed" the farm.

"This isn't our property, it's Alan's. It's his backyard," he says.

"The income does assist in the management of the property and it is a large property - 1000 hectares."

Another tour bus is already on site and one of those on it is former NSW Labor flack and now lobbyist, Michael Gleeson. Gleeson recognises an industry with a PR problem.

"Yes, it has a PR problem and it is called Alan Jones," he says.

The local Lions club is helping out with lunches at the open day. A long line has formed in the shadow of a wind turbine in front of a caravan in which three elderly country women serve up sausage and steak rolls. On the counter is  an apt offering at a windfarm - a pile of fruit cakes; nutty with a hint of bitterness.

Most on the bus are keen to get their photo taken in front of the large pylons and rush of the buses with iPhones at the ready. But it is clear some have come with a sceptical attitude.  One asks Simon about lightning strikes and another wants to know what happens when over 100km winds arrive.

"A great wind spread for production is 10-20 metres per second but at 25 the turbines cut out, which is around 100 km/h," says Simon.

Another local collars Cameron to ask if he has seen a recent documentary on nuclear power.

"The total contribution to energy needs of these things worldwide is only 1 percent. Coal is 80 percent," he explains.

"It's clear we'll need baseload and something has to provide the power when the sun goes down and the wind stops blowing."

Maybe, but it would be interesting to hear the views of locals when they discovered that rather than building a wind farm, a nuclear power plant was going to be built instead. Good luck with that idea.

Simon is also quizzed on what will happen to the wind turbines when Acciona's lease runs out.

"Who pays to pull them down?" asks one local farmer.

Simon assures him Acciona will do the land remediation.

"We leave it the way we find it," he says.

The questioner remains unconvinced.

"We were told it was the landowners...we get told a lot of things."

Another wants to know about whether the 80 metre high turbines have lights on the top of them, like occurred at one wind farms in Victoria, to alert low flying planes.

"If you are going to have a light air plane that low you are in trouble," interjects another attendee.

Undeterred the skeptics then ask about the cost of wind power.

"So when are our power bills going to go down from all this because they haven't gone down yet mate."

Not all are sceptical. AGL has proposed a gas plant in the region and one person wants to know if rural communities can get their own turbines. Another proudly discloses she has just installed solar panels on her roof.

Eventually, Simon suggests that people should judge for themselves and get out to a turbine on a nearby ridge.

"Let's go and see what it's all about," says Simon.

"Good idea mate," responds one local sceptically.

Simon calls the Melbourne Acciona control room to turn off one of the 31 turbines. It's a beautiful day and people pile off the bus to see the now dormant wind turbine and catch a great view over the Upper Lachlan. A door at the bottom of the turbine pylon has been opened to allow people peer into its guts.

I strike up a conversation with one of the other people on the bus. He turns out to be the unsuccessful Labor candidate for Hume, Michael Pilbrow, who was defeated by Angus Taylor. He isn't terribly complementary about Taylor saying the Liberal's candidate followed Graham Richardson's maxim of "whatever it takes".

Taylor's family property is next door to one of the local wind-farms but he has long had a Met Mast - installed by renewable energy companies to determine whether there is a sufficient wind resource to construct a project.

"I thought internal Labor politics were bad," says Pilbrow.

"Taylor made a lot of promises to people around here. He effectively promised to close things down."

But Pilbrow concedes the wind farms were a big factor in the local election.

"They have caused collateral damage. Speak to real estate agents and they'll tell you they have affected prices of surrounding properties.

Taylor - along with senior figures both sides of politics - was invited to the open day but did not respond to the invitation.

While talking I listen carefully to see what noise I can detect from other turbines around. There does seem to a kind of dull roar. As a former resident of Sydney's inner west, it reminds me of the sound that used to alert me of the impending arrival of a jumbo jet landing at the nearby airport.

When I ask Simon about the sound, he says it is the sound of the wind whipping over the ridge and through the trees.

"The wind makes more wind going past your ears [than the turbines]," he explains.

Simon then announces he is going to get the control room to restart the wind turbine so people can judge for themselves the noise it makes.

There is not much to hear from the turbine except from a soft "Phwp. Phwp. Phwp. Phwp" but as you move away the dull roar earlier identified can again be heard from the surrounding turbines. Others notice it as well, particularly when the wind periodically picks up.

"It's not the wind you can hear, it's the bloody turbines," says one local.

It's clear companies like Acciona have much more work to do to in their growing public relations battle.

High Court on gay marriage - two steps forward, one step back

Two steps forward, one step back. It's a cliche but in the case of this week's decision in the High Court striking down ACT same-sex marriage legislation it is most apposite.

The irony of the decision is that while it struck down ACT same-sex marriage legislation it also was a further step on the way to true marriage equality.

Undoubtedly, those couples that rushed to wed in the period between the hearing of the case and the decision are distraught at having the legal recognition of their relationship stripped from them.

However, the great weakness of the ACT legislation was that in order to get around the prohibition on same-sex marriage in the Commonwealth Marriage Act, lawyers needed to argue that an Act entitled Marriage Equality (Same Sex) Act did nothing of the sort. Rather, they argued it established a legal relationship that wasn't in fact marriage and was different.

In their unanimous decision, High Court judges identified this as a key weakness in the ACT case.

"The Territory submitted that the Marriage Act and the ACT Act "do not regulate the same status of 'marriage," judges said.

"As both the short title and the long title to the ACT Act show, the Act is intended to provide for marriage equality.... By providing for marriage equality, the ACT Act seeks to operate within the same domain of juristic classification as the Marriage Act."

But in finding that the Commonwealth has the constitutional power to make laws in relation to marriage, the Court also went out of its way to highlight that the power was not limited to wedlock between a man and a woman.

This is the real significance of the High Court's decision. The Commonwealth Solicitor-General in arguments before the Court went out of his way to avoid the issue of whether the constitutional power - s51 (xxi) - was limited by the understanding of its marriage at the time of federation.

That is, the understanding of the scope of the power at federation was informed by a number of 19th Century English cases that marriage was only between a man and a woman. The Commonwealth Solicitor-General argued there was no need to address this issue in order to find the ACT legislation invalid.

But the Court was not to be dissuaded by the Commonwealth from addressing the scope of the marital power. Instead, it went out of its way to stress the content of the power was one that had changed as Australian society changed. And it was prepared to give a broad ambit to the scope of the constitutional power -  as the modern High Court is prepared to do in relation to other heads of power - defining it without reference to religion, history or sexuality.

Somewhat provocatively, the Court even suggested the marriage power could encompass could include polygamous relationships, as it is in some other countries.

"Marriage" is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations," the Court said.

The real power of the court's decision then is that it is no longer possible for groups like the Australian Christian Lobby to claim that marriage is only between a man and a woman or that it is fixed by reference to out-dated values.

As the Court makes clear, it is not possible to limit the legal concept of marriage "by confining attention to the marriage law of only those countries which provide for forms of marriage which accord with a preconceived notion of what marriage 'should be'".

In the rarefied world of this High Court, this goes as close to a slap-down of the religious right as you get.

In doing so the High Court hand-balled the issue of marriage equality back to Federal parliamentarians and reminded those seeking real marriage equality that it can only occur if the artificial constraint on the scope of s. 51(xxi) is removed in the place it was created in 2004. It is not achieved through state or territory level legislation creating a legal artifice to get around a federal discriminatory law.

Now the Government cannot hide behind the claim that it does not have the constitutional power to recognise same-sex marriage.

So while the Abbott Government may have won the day in the High Court, it is highly likely the battle will return to parliament, which will eventually come to the same decision as the High Court and many other countries have done. And it is highly likely that battle will not only divide the Coalition but also the Labor Party. But more about that in a future blog post.

The Canberra Feedback Loop

She would call four to five times a day. Maybe more. At times, pleading and begging. At other times, rude and bullying.

Then there were the emails - shorn of formal niceties and full of demands and threats.

Sure, it is never easy dealing with press gallery journalists when working in Government. But this particular journo took the cake for sheer rudeness and front.

Every day was a new demand to be spoon-fed an "exclusive" or "drop" or a rather transparent attempt to flush us out by claiming she had "government sources" on a story.

On one such occasion, in relation to a budget measure, she had her facts completely wrong but in the early days of the Rudd Government in 2008, it was worth more than our jobs were worth to deny it and in so doing give her the real story. However, as best he could the media advisor tried to steer her away from writing the story warning her she would look silly by writing it. But she was not to be swayed and swore she had a high-level source saying the Government had broken an election pledge to introduce the measure. 

Next morning,  she had her "exclusive", even though it was completely fictional. So when time came to make the announcement a week before the budget, it was decided there was no point giving the journo the story as she had already reported it was not going to happen. As a result, the brown stuff hit the fan - the journo in question rang first thing in the morning and then emailed making all sorts of dark threats. Soon after her paper started writing stories about Government "spin" and "media management".

I am not going to name the journalist. It serves no purpose. The reason I tell this story is to give some insight into the rather extreme tactics of some journos to get a story out of a new government. But also to give colour to a broader point about various government strategies to handle the media.

This incident was in the early days of the Rudd Government when few had any idea that things would end so badly. At that time, the strategy driven from Rudd's office was very much based on feeding the media beast and trying to control the agenda. In those days - unlike later in the life of the Government - control was tight. Stories didn't get out unless we wanted them to get out. In the first year of the Rudd Government there was only one real "leak" - details of Cabinet discussions on Fuelwatch - and that came from Godwin Grech, not from within Labor ranks.

However, while the media strategy seemed to have worked for Bob Carr and Tony Blair, journalists had become wise to it. Journos - particularly from News Ltd - who had become fat and lazy from the Howard Government culture of exclusive "drops" could be overheard down at Aussies Cafe whingeing about how hard it was to get stories out of ministers' offices. They quickly rebelled within months of Rudd coming to power. 

Quickly, the claim of the spin machine of Kevin Rudd's office became a widely accepted fact in the media and it worked against the Government. (From my point of view, if Rudd's media office had been proper spin doctors, they would have been a whole lot better than they actually were). 

Watching the Abbott Government recently has reminded me of those early days of the Rudd Government. Like the Coalition, Labor too was wary of the media and was convinced it could control it. But unlike the Coalition, Labor believed it could do this through regular announceables.

Abbott and his senior advisors clearly watched closely Rudd and Gillard's failed strategy to deal with the press gallery and the mayhem created by the ever-quickening catherine wheel of the 24-hour media cycle. To their credit, they have tried to lower the frenetic white noise of politics, realising that most people are thoroughly sick of politicians on their TV and radio every moment of the day.

However, it is clear there is more behind the Abbott Government strategy. From the recent weeks it is clear it is also driven by deeply ingrained disdain towards the Canberra press gallery.

The Coalition's disdain for the Canberra press gallery is by no means unique in Australian public life in recent times. However, it becomes dangerous when the barely concealed belief they can ignore the Canberra gallery and talk over their heads starts manifesting itself as belligerent arrogance and conceit at press conferences.

Prime Exhibit was Christopher Pyne on ABC Radio this week: ''It's not my fault if some people in the press gallery don't understand the complicated nature of the school funding model."

There can be no other explanation for the public performances of ministers like Christopher Pyne and Scott Morrison other than basic arrogance and conceit. Tony Abbott's ham-fisted initial response to revelations of spying on Indonesia's president seems similarly driven by  a belief that what matters is not the perspective of political journos but those of listeners to talkback radio. In so doing he completely missed the serious diplomatic implications of his actions. 

While many voters may dislike the Canberra press gallery, I reckon they hate even more the recent displays of belligerence by Pyne and Morrison. Not a great deal that fascinates the press gallery tends to filter through to average voters. But I bet they would have concluded two things this week - the Coalition has broken its promise on school funding and Pyne is an arrogant pillock. For a government elected on the promise of no surprises and a pledge to keep its election commitments, Pyne's efforts this week were just breathtaking, especially on an issue of such high importance to so many voters.

And what happens when you starve a pack of hungry wolves ? They gorged themselves on the piece of red meat, finding angry school teachers and state education ministers to fill the airwaves and column inches. While its influence is no longer what it used to be, the press gallery still has a large impact on the way many Australians understand and interpret federal politics. 

In some cases, like a bad circus mirror, the press gallery reflects back to politicians a distorted version of themselves that soon becomes reality. This feedback loop has a major influence on the way the political actors see themselves and act. In competing versions of reality, it is the press gallery's narrative normally - not always - becomes the accepted narrative. By the time it has been picked up by the ABC in the morning, repeated on talk back radio and again in the commercial nightly news, fiction often becomes reality.

The Abbott Government might think that in the end results will speak louder than words but they take the press gallery for granted at their peril. If a tree falls in the forest and no-one is there is to see it happen, did it really happen ? In contrast, those ministers who  assiduously court gallery journalists and do to the talk show show circuit of Sky News and Q&A will always be the ones feted as the strong performers, despite meagre policy records.

However, the more important lesson for the Coalition this week was that it takes Coalition state colleagues for granted at their peril. Pyne committed an A Grade newbie error this week in expecting Liberal education ministers in NSW and Victoria to meekly fall in behind him on education funding. This faux pas was made even worse by the fact he didn't even do state counterparts the courtesy of letting them know beforehand before dropping the story out in the media. Again, a sign of disregard of elementary political and diplomatic due process, something that seems to be an emerging hallmark of the Abbott Government

The Greens, Labor and a pack of matches

You really have to hand it to the Greens. They are just as capable of devious acts of political bastardry on Labor as ALP's best faceless men. If not more.

Now in writing this, I am fully aware of the Twitter shitstorm this may bring down on me and as a result nearly didn't post this item. But hell, someone has to say it. There needs to be a proper public discussion about how it all went so wrong over the last six years.

Let's just rewind the clock six years and trace back most major problems Labor now face.

Sure. Labor's sheer ham fistedness on most major policy issues has a lot do with their problems. But you'll probably also find the Greens sowed the seeds.

Watching the Greens deal with Labor over the last six years is like a watching someone giving a pack of matches to a pack of delinquent kids and then feigning horror when the house goes up in flames.

The most obvious example is the Greens refusal to pass the Carbon Pollution Reduction Scheme. Now I hear Greens supporters cry: "But the CPRS was crap and would have locked in failure. The carbon price scheme is a much better scheme."

There is a certain amount of truth in that:- even though the essential design features of the CPRS and carbonnprice are the same, the latter achieved an important independent governance framework through the Climate Change Authority; set aside a $10 billion fund for renewable energy; and put in place a review of industry assistance through the Productivity Commission.

But won't perfect policy look dandy by the middle of next year when the Coalition succeeds in gutting it ?

Let's take the sliding door moment in 2009 and imagine what would have happened if the Greens had supported the CPRS.

By now, there would have been in place a price on carbon for nearly four years; making it much harder to repeal. Yes, it would have been a very, very low price - around $1. However, it would have laid a foundation for much stronger action down the track, instead of the smouldering ruins of the carbon scheme that will soon come to pass.

Contrast the approach taken by the Greens in dealing with the GFC stimulus package to the CPRS. I'm not arguing the stimulus package was not an important factor in helping Australia ride out the GFC but it could have done so at a much lower cost.

If the Greens had taken a responsible balance of power party in the Senate they would have taken a bit more critical look at some of the stimulus package components.

The cost of the School Halls program alone - nearly $16 billion and well exceeding any benefit to the community - was around half the budget deficit when Labor left office, and it was delivered long after needed to respond to the GFC.

But what did the Greens do ? They waved it through after tacking on additional money for bike paths which as the Australian National Audit Office subsequently commented was not stimulus related and did not "seek to focus funding consideration on those projects that would maximise job creation and retention outcomes for the funding  awarded  in  the  areas  of  identified  greatest  need."

However, the much bigger consequence of the Greens action in the Senate, was to start the creation of a deeply divisive political environment in which it has become nearly impossible to get anything done in climate change policy. It sewed the seeds of Tony Abbott's rise to power and of Prime Minister's Kevin Rudd downfall and that of his predecessor Julia Gillard.

Faced with the rejection of the CPRS in the Senate, Rudd took a downward spiral - panicked, rejected the option of double dissolution, dumped the CPRS, and botched the introduction of the mining tax. It worked to the benefit of the Greens at the 2010 election with scores of disillusioned Labor voters flocking to the party.  However, in the long run it has been to their detriment. 

But that's the thing about the Greens; regardless of their claims to be different from the traditional parties, they too are focused on the short-term politics rather than the long-term. It looks great on a wrist band but isn't often doesn't work so well in practice.

But I digress. Back to 2010.

After the election, buoyed by their success at Labor's expense, the Greens drove a hard bargain and demanded a coalition agreement with Gillard. As usual, it seemed like a great idea at the time but has had serious negative long-term consequences for both Labor and the Greens.

But the problems really began when they negotiated the carbon scheme. The problem was not so much the Greens demanded in return for supporting Labor - even though they should have supported the CPRS in 2009 - but rather the scheme's design features.

Unable to secure agreement from the Greens on a national emissions target, Labor had to agree to a compromise - a three-year fixed price. The Greens also set their sights on a high price - up to $40. With the talks set to collapse, Labor eventually agreed to $23. In hindsight, that high price along with the three year fixed price period made it much more difficult to sell publicly.

Now I hear the objections.

"But we need a high price on carbon, if we are to bring on more renewable energy, replace fossil fuels and urgently tackle climate change".

However, it is not the price today or next year or the year after  that which will determine investment in renewables in the long term. Rather, it is the long-term price trajectory and guess what ? We don't have one now.

A far smarter approach politically would have been to start with a much lower price and then leave it to the Climate Change Authority to set targets and a long-term emission trajectory.

But as usual, the Greens went for the policy perfect rather than make compromises that may have seen a more durable scheme. 

However, more importantly,  the Greens went for the short-term political win in order to wave around a high starting price for the gratification of ill-informed supporters.

As a result, we now have a scheme that goes from $24.15 to zero next July and a Coalition Government in power for the foreseeable future. Good job.

But not content with lumbering Labor with a carbon scheme that was electoral poison, the Greens then waited for the most politically opportune movement to shaft Gillard.

Sensing the political tsunami awaiting in September - that they helped create - the Greens then pulled then pin on the coalition agreement and sunk the boot into Labor, which was already lying in a battered foetal position on the floor.

Milne portrayed the decision as one of principle but her speech to the National Press Club couldn't disguise what was a deeply political strategy of brand differentiation to again win support from disaffected left Labor voters.

But it counted for little.  Voters didn't buy it - the Greens fell to their lowest vote since 2004. They achieved 342,000 fewer first preference votes in the lower house, a swing against it of 3.2 per cent. In the Senate, the national swing against it was 4.5 per cent – in the party’s homeland state, Tasmania, the Green vote fell by more than 8.5 per cent.

By a stroke of luck and a smelly preference deal with the very man who epitomises everything they profess to stand against, the Greens managed to scrape back with the loss of at most only one Senate seat. However, if the vote is replicated at the next election, they are likely to face a rout in the Senate.

In the wash up from the election, former Greens campaign manager Vincent McMahon put the Greens problem best.

"At issue is whether to be a party of protest or to have broader appeal. The former consigns the Greens to minor-party status," McMahon said.

"If the Greens broaden their appeal and display a maturity to move beyond being a party of protest, they can rebuild voter trust and become a third force."

On cue, McMahon's analysis met with howls of protest. But McMahon is spot on: every time the Greens define themselves by who they are not - Labor - they lose the opportunity to define their own agenda.

However, the Greens have not learned their lesson and they are back to their old tricks in parliament; playing the short-term political game and eschewing a smarter long-term agenda.

Last week, the Greens voted in the Senate with the Coalition to prevent an inquiry into the repeal of the carbon bills and force a vote much sooner on the legislation. Given the complex transitional issues for business associated with the repeal of the carbon price, an inquiry makes sense. But Milne is unmoved.

"The reason the Greens will not be supporting an inquiry into the current legislation is that we do not want to avoid a vote on this. It is time to take it straight up to the coalition government. It is time to say: this legislation is working. We are not going to cast doubt; there is going to be no equivocation on this."

To the barricades comrades and damn the logic ! Bringing the vote forward achieves nothing; even if Labor and the Greens block the legislation, it will still probably pass after June.

But the short-term political logic of the move is obvious - Labor is internally divided over whether to block the carbon repeal legislation and the Greens stategy is designed to embarrass Bill Shorten. If Shorten can prevent a vote being taken until after July 1, Labor's vote in the Senate will no longer be needed. However, Milne won't let the opportunity pass to score points and wedge Labor.

"Now is not the time to delay or equivocate," Milne said.

"Labor have back-flipped on global warming so many times already, and now they want a delay so they're not forced to vote down Mr Abbott's bad policy."

However, there is considerable risk in the Greens strategy. Labor could block the repeal legislation on the first occasion and then buckle under extreme pressure from business to pass the Bill before 1 July.  Alternatively, Labor could block the repeal bills twice and hand Abbott a Double Dissolution trigger. In the ensuing election, Labor and the Greens could then be wiped out and even more right-wing minor party senators elected

Either way, another classic Greens rat...k.

Labor's lot on carbon

One of the hardest things about going from the Government benches to the Opposition is losing all the resources that go with them.

Labor has probably already worked that out but the first week of parliament will really bring that fact home. 

The Coalition will this week introduce legislation to repeal the carbon scheme and Labor has signalled its intention to try to amend it to introduce an emissions trading scheme.

Now that is easier said than done. The Government has all the resources of the Office of Parliamentary Counsel to work on its legislation; the word on the street is that the poor schmuck who drafted all the CPRS and Clean Energy Future bills was locked in the same dark room to draft the repealing legislation. 

With no such drafting resources it will be interesting to see how Labor goes about amending a Bill, which is pretty much one line; Schedule 1, Item reads - "Clean Energy Act 2011: The whole of the Act: Repeal the Act." 

The rest of the amendments are basically transitional arrangements for the phase out of the carbon scheme and consequential amendments to other pieces of legislation.

One option for Labor would be to cut and paste the amendments hurriedly drawn up before the caretaker period earlier this year. But that will face some procedural hurdles.

Despite these difficulties, it's a bit different from the course of events one ill-informed scribe was over-confidently predicting in his recent "Labor backflip" yarn. Word of advice: heed the lesson of the last three years- if you're going to rely on an unnamed Labor Right factional hack, make very sure you're not being used to fly a kite in caucus.

Not to be dissuaded the same scribe was ruminating this week that Abbott's achilles heel on his plan to repeal the carbon scheme was the weather. 

Well yes its true, public support for taking action to tackle climate change was highest during the Millennium drought. But as I argue here the recent bush fires in NSW don't mean there will be a resurgence of support. The argument that public support will return for putting a price on carbon when the weather turns foul conveniently overlooks that it didn't in 2009 after the Victorian bushfires nor did it in 2010 after the Queensland floods.

Nice idea. But I fear it's a bit of a pipe dream.

However, the prize for the most widely optimistic claims goes to the chair of the Australian Competition and Consumer Commission Rod Sims, who reckons that it will be a fairly easy task to strip carbon out of electricity prices.

"It's not a massively complicated process,'' Mr Sims said this week. ''Electricity prices went up fairly quickly on the way up and they will go down fairly immediately on the way down.''

That claim would have had a few energy market experts scratching their heads. Anyone who has taken any time looking at Australian energy markets knows one thing for sure and that is that they are "massively complicated".

And as is becoming increasingly clear, it is not a simple matter of going back to old energy prices come 1 July next year.

The biggest problem confronting energy companies is what happens if the carbon scheme is not repealed by 1 July next year. The Abbott Government has made clear even if the repeal bills are not passed until after 1 July they will take effect retrospectively.

But again, easier than it sounds. For a start, state energy regulators can't make pricing determinations for 2014-15 just on the basis of an "expectation" the carbon scheme will be repealed. As a result, they will  need to wait until after repeal to redo retail energy pricing and that will take at best 2-3 months.

During this time, the law is the law and generators will most likely still be passing through the cost of carbon to customers through the retailers. 

At the same time, customers will expect to be getting cheaper power and newspapers will be crying blue murder running story after story of pensioners doing it tough.

But it won't be a simple case of refunding retailers and customers 10 percent when the changes come through.

As explained by the Energy Supply Association of Australia, unlike the impact on goods and services of the introduction of the GST in 2001, there is no easy way to calculate what the carbon component is of energy prices.

"It is impossible to precisely quantify the extent to which the carbon price has increased wholesale energy prices, as they vary based on the changing mix of generation output. In a competitive market, price discovery is dynamic, and participants’ ability to recover carbon costs will vary. Renewable generators (wind, hydro) also benefit from those higher prices, even though their costs are not increased by a carbon price.

Further complicating this scenario is the inability to attribute to the carbon price a specific value at the time of trade."

Then there are all the forward contracts that have been entered into by retailers to hedge against the volatility of the wholesale market that have carbon factored in. Says ESAA:

"Forward contracts are based on expectations of wholesale spot prices over the period of the contract and can be bought and sold several years in advance.....

Where a carbon “pass-through” clause has been used in a bilateral contract, the arrangements differ. There is a standard form contract approved by the Australian Financial Markets Association (AFMA) that has a price ex-carbon and a formula for calculating a carbon component based on the prevailing price."

So it isn't as straight forward as Sims would have people believe. Nevertheless, the ACCC from 1 July will be running the fine tooth comb over energy prices to determine whether they are "unreasonably high"  using the new powers being conferred by the Abbott Government. These new powers go much further than the ACCC's powers when the carbon scheme was introduced, which merely addressed whether companies were making false or misleading claims about the price impact of carbon tax.

So that brings us back to Labor's lot. With the ACCC breathing down energy companies necks, you can bet they will start bringing pressure to bear on Labor to pass the repeal Bills before 1 July rather than roll the dice with Clive Palmer.