The media bargaining code has passed Parliament, but don't rule out another Facebook news ban yet
The highly contentious media bargaining bill, formally titled Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021, passed both houses of Parliament. That means a radical piece of media reform — the bargaining code — will come into effect.
A joint statement from Treasurer Josh Frydenberg and Communications Minister Paul Fletcher says the code "provides a framework for good faith negotiations between the parties and a fair and balanced arbitration process to resolve outstanding disputes".
They argue it will be good for journalism. "The Code will ensure that news media businesses are fairly remunerated for the content they generate, helping to sustain public interest journalism in Australia."
But before that happens — or indeed ever does — there are a few steps on the path.
News businesses that want to be paid for content that appears on search engines or social media can sign up (provided they meet some conditions, including earning $150,000 per year in revenue).
At the same time, Treasurer Josh Frydenberg must consider the question of "designating" digital platforms like Google and Facebook and the services they offer, like search or news feed.
This means he contemplates whether they hold a significant power imbalance over publishers.
If he does decide to designate one, he needs to provide it with 30 days' notice.
After that ends, the platform will be designated, meaning it must start negotiating with news businesses about how much to pay them for content through mediation, or if that fails, arbitration.
That leaves Facebook and Google powerless to an arbitrator telling them how much they should pay — a risky proposition.
At the time, Mr Frydenberg said "none of these deals would be happening if we didn't have the legislation before the Parliament".
That is, according to the Treasurer, the threat of the law prompted Google to sign deals.
Not long after, Facebook indicated it wasn't happy with the way the law was drafted by blocking news content for Australians.
It has come around this week, reversing its decision to pull news from the platform.
After discussions with Facebook, including between Mr Frydenberg and founder Mark Zuckerberg himself, the government amended the law.
The announcement coincided with an about-face from Facebook, which committed to reinstating news for Australian users.
There was even a reported deal between Facebook and Seven West Media — an indication the social media giant may be committed to the new environment.
******************************* Fight erupts over Defence moves to sack special forces whistleblowers Whistleblowers are never popular and those who apply civilan standards to wartime are particularly reviled
A small number of special forces soldiers who blew the whistle on alleged war crimes at an official inquiry have been issued termination notices against the advice of the military watchdog.
The notices have set up a clash between the military hierarchy and the Inspector-General of the Australian Defence Force, whose most senior war crimes investigator, Justice Paul Brereton, recommended in his recent report that whistleblowers who had done nothing wrong should be promoted while witnesses who had honestly disclosed their own wrongdoing should not necessarily be sacked.
“It is crucial that their careers be seen to prosper,” Justice Brereton wrote last November of key witnesses who had engaged in no wrongdoing.
Others who had committed alleged war crimes themselves but had later helped the truth come out by giving truthful testimony to the inquiry, should be given special consideration, he wrote.
As the Defence Force continues to deal with the fallout of the Inspector-General’s report, delegates of the Chief of the Army Rick Burr have moved to sack at least three whistleblowers from the Special Air Service Regiment and commandos.
Asked about this process, a Defence spokesperson said: “The fact that some individuals assisted the inquiry is not disputed and regardless of any recommendation the inquiry made, it is ultimately a matter for Defence as to what if any administrative action is taken.”
The spokesperson also said that while termination notices had been issued, the responses from soldiers threatened with sacking would be considered before any final decisions were made.
Defence sources in Canberra, who were not authorised to speak publicly, confirmed that the office of the Inspector-General had been forced to issue “support” letters to help a small number of soldiers who were issued termination notices.
Multiple Defence sources aware of behind-the-scenes efforts to protect whistleblowers said at least two of the soldiers who were issued termination notices allegedly engaged in war crimes on the orders of more senior soldiers, and in both cases, these alleged crimes would never have been discovered without the disclosures, the sources said.
Some soldiers suspected of repeatedly lying about their own involvement in war crimes have also been issued termination notices, but were given no support from the Inspector-General. The Age and The Sydney Morning Herald have confirmed this by speaking to more than a dozen serving and former special forces insiders.
In November, General Burr and Defence Force Chief Angus Campbell both publicly praised the role of special forces soldiers who disclosed alleged war crimes to Justice Brereton, who led the Inspector-General’s inquiry.
Justice Brereton ultimately found that Australian special forces soldiers allegedly committed up to 39 murders and recommended that up to 19 current or former soldiers should face criminal investigation, possible prosecution and be stripped of their medals.
Justice Brereton warned in his November report that “too often ... have the careers of whistle-blowers been adversely affected”. He urged the Defence Force to promote “cleanskin” whistleblowers – those who had observed or disclosed alleged war crimes but not participated in any alleged summary executions. Chief of the Defence Force Angus Campbell is yet to act on that recommendation.
Justice Brereton also urged General Campbell and General Burr to consider special treatment for those “whose conduct is such that they cannot be rewarded by promotion, but who, having made disclosures to the Inquiry in protected circumstances when they reasonably believed they would not be used against them, and whose evidence was ultimately of considerable assistance to the Inquiry, ought not fairly be the subject of adverse administrative action”.
“Again, it will be an important signal that they have not been disadvantaged for having ultimately assisted to uncover misconduct, even though implicating themselves.”
When he announced Justice Brereton’s findings in November, General Campbell described being “deeply appreciative of people who came forward to speak with concern of what they had seen, in some cases of what they had participated in”.
“It was a very brave thing for them to do, because in the climate and the culture I have described, they would have been very concerned for doing so,” he said in comments which suggested General Campbell was aware that key whistleblowers had also disclosed their own wrongdoing.
But since then, senior officers working under General Burr’s ultimate command have, in at least three cases, disregarded the advice from the Inspector-General and issued termination notices that inform a soldier they will be sacked unless they provide mitigating circumstances.
The question of how to deal with special forces veterans who have admitted to egregious acts is not simple. Even considering their assistance to the inquiry, their alleged conduct may be so serious that it warrants dismissal. However, that is the same workplace penalty suffered by SAS and commando soldiers who have been found to have repeatedly lied about their own role in war crimes only to have it disclosed by others.
The tension comes amid confusion about how the federal police and Commonwealth Director of Public Prosecutions will work with the new Office of the Special Investigator, which was announced by Prime Minister Scott Morrison in November to help prosecute those accused of war crimes. The Office of the Special Investigator (OSI), led by former Victorian judge Mark Weinberg, is analysing what information from the Brereton inquiry can be used in criminal prosecutions and what must be withheld because it was obtained under a special power that gives immunity to those who confess to wrongdoing.
However, the OSI is at risk of replicating steps already taken by the Australian Federal Police, which was referred war crimes allegations by Justice Brereton in 2018. Federal police agents have spent almost three years investigating former special forces soldier and Victoria Cross recipient Ben Roberts-Smith, who is accused of multiple war crimes, and are also investigating serious allegations against another soldier known as “Soldier C”.
Shifting these investigations to a newly created bureaucracy is potentially fraught if it causes delays, as witnesses’ memories fade or suspects find opportunities to collude. It may also leave some already traumatised witnesses dealing with new investigators with whom they have no prior relationship or who have no corporate investigation knowledge.
Former SAS soldiers said federal police agents had taken statements and built rapport with key witnesses in 2018 and 2019. Official sources in Canberra said it was unclear how many federal agents would be seconded to the new office, although it would involve at least some of the AFP taskforces set up in 2018 to probe war crimes.
*************************************** TGA bans Pfizer, AstraZeneca brand mentions in COVID-19 vaccine advertising
Pharmacies, GPs and healthcare organisations will be banned from displaying advertisements identifying whether they are using the Pfizer or AstraZeneca product in the national COVID-19 vaccine rollout.
The Therapeutic Goods Administration, the federal body that regulates medical drugs and devices, has released strict guidelines stopping organisations from developing their own ads for coronavirus vaccines.
Businesses involved in the rollout are welcome to use government-approved materials to inform the public of vaccine availability but must be careful not to add “the tradename and/or active ingredient of the specific vaccine or other information that might enable consumers to identify the particular vaccine or the manufacturer of the vaccine”.
Individuals receiving vaccines will be able to get information on the brand of vaccine they are receiving, but providers will not be able to promote that they are using a particular brand, or compare one product over another.
It comes as the nation’s COVID-19 vaccine rollout begins, with the most vulnerable groups including front-line healthcare workers starting to receive doses of imported Pfizer vaccines this week.
Australia is taking a “portfolio approach” to vaccinating the nation, with doses set to come from a range of companies including Pfizer, AstraZeneca, and Novavax should that vaccine be successful.
The many options have prompted community comparisons of the vaccines, with Pfizer’s phase 3 data suggesting 95 per cent effectiveness, while AstraZeneca’s data showed effectiveness of around 70.4 per cent.
Health minister Greg Hunt has been clear that the two vaccines currently approved for use in Australia are both safe and effective, however.
“With both the two initial vaccines, the Pfizer and the AstraZeneca vaccine, the international evidence is that the safety impact for prevention of serious illness, hospitalisation, death has been determined to be up to 100 per cent,” he told the ABC on Sunday.
***************************************** Geelong police officer Sergeant David Magher found guilty on two counts of assault
A Geelong police officer has been found guilty of assault after kicking a man in custody three times to the side of his body.
Sergeant David Phillip Magher was charged with three counts of assault and suspended in 2018 by Professional Standards Command after kicking Andrew Birch as he was being transferred from a divisional van to a holding cell at Corio Police Station.
After a six-day contested hearing in the Geelong Magistrates' Court, Magistrate John Lesser found Sergeant Magher guilty of two counts of assault and dismissed a third count.
Magistrate Lesser said while in his view the first kick was "unnecessary", he could "not be satisfied beyond reasonable doubt the kicking action was not proportionate and reasonable".
"The second and third kicks stand out as of a completely different character to the first," Magistrate Lesser told the court.
"The level of force inflicted on Mr Birch [was] entirely inconsistent with the other members at the time, who had apparently obtained a measure of control of Mr Birch.
"They stood out as gratuitous and unnecessary and could not be justified as reasonable and proportionate use of force. As a result, there can be no justification for the use of force in those two kicks … which were delivered with considerable force.
"In the heat of the moment, Sergeant Magher crossed the line from the reasonable and proportionate … to the excessive and disproportionate and unjustifiable and therefore unlawful use of force on Mr Birch."
On September 21, 2018, then 36-year-old Mr Birch was arrested outside Corio Village Shopping Centre over a suspected armed robbery involving a knife and taken to Corio Police Station.
Security footage from the police station, played to the court, showed Mr Birch lunging towards Senior Sergeant Ian Kerin as he exited a police divisional van.
Sergeant Magher, who has been a police officer for more than 20 years, then kicked Mr Birch as he and Senior Sergeant Kerin pulled Mr Birch to the ground.
Mr Birch received two more kicks from Sergeant Magher as he was lying on the ground on his stomach with his handcuffed wrists pulled straight out in front of him and legs straight out behind him.
Magistrate Lesser dismissed the first kick on the grounds it could have been used as a tactic to make Mr Birch comply but ruled the two other kicks were excessive and unjustified.
Ten police witnesses were cross-examined during the hearing. All officers involved in Mr Birch's arrest agreed he resisted arrest, spat at officers, and screamed profanities.
Defence lawyer Stewart Bayles argued the kicks were "reasonable" and "proportionate" and were used by Sergeant Magher to protect the officers and himself from Mr Birch kicking out and spitting and to stop him from escaping.
In his closing remarks, Mr Bayles told the court a reasonable use of force "should not be equated with perfect or even best practice".
Crown prosecutor Sarah Thomas argued the kicks were an "excessive use of force that was not needed to seek compliance" and were instead used to punish Mr Birch for resisting arrest.
"When you view the video the inescapable conclusion is that these were three acts of gratuitous violence … toward someone who had given the police officers arresting him a hard time," she told the court.
Ms Thomas argued Mr Birch had stopped struggling "many seconds before" Sergeant Magher kicked him the second and third time.
She said all the officers, including Sergeant Magher, appeared relaxed on the CCTV as they prepared to move Mr Birch to a cell.
"The suggestion Mr Birch was on the ground for a lengthy period of time because he continued to be non-compliant, the suggestion by Mr Magher [Mr Birch] was kicking throughout, that was simply not correct," she said.
The court was told Superintendent Craig Gillard and Acting Inspector Michael Ryan reported Sergeant Magher to Professional Standards Command after Sergeant Magher admitted he used capsicum spray on Mr Birch twice during the arrest and told Acting Inspector Ryan: "I just wish I could delete the CCTV."
Mr Bayles argued his client never said that and accused Acting Inspector Ryan of lying.
Sergeant Magher will return to court later this week for sentencing.
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