Tag Archives: FactCheck

FactCheck: can native title ‘only exist if Australia was settled, not invaded’?

The Conversation
Kate Galloway

… there is a fundamental point which goes to the heart of this debate that literally no one, to date, seems to have picked up on …

Native title can only exist if Australia was settled, not invaded.

– Excerpt from an opinion piece written by Sherry Sufi, chairman of the WA Liberal Party policy committee, published by Fairfax Media, January 20, 2018

Every January, the debate about the date of Australia’s national day intensifies.

The current date of Australia Day – January 26 – marks the anniversary of the 1788 arrival of Europeans in Australia. To some Australians, this date is known as Invasion Day, or Survival Day.

The Australian Greens party has renewed its campaign to change the date of Australia Day. Greens leader Richard di Natale has lent his voice to the argument that January 26 marks “the beginning of an invasion”.

In an opinion piece, WA Liberal Party policy committee chairman Sherry Sufi said Di Natale was “attempting to undermine native title by implying that Australia was invaded and conquered”.

Sufi argued that “native title can only exist if Australia was settled, not invaded”.

Let’s look at the law.

Checking the source

When asked for sources and comment to support his statement, Sherry Sufi provided this response:

Disclaimer: My article in Fairfax Media and the correspondence with The Conversation are not statements on behalf of the WA Liberal Party or any of its constituent bodies. The views expressed are my own.

As one of the 193 member states of the United Nations, Australia exists as part of a rules-based world order. Land conquests through war of aggression were only criminalised after World War II.

This prohibition does not apply retroactively. Doing so would throw the entire world map into turmoil.

It applies on future attempts to conquer. The status quo of international borders at the time was deemed ‘frozen’. Lands conquered before the Kellogg-Briand Pact (1928) are deemed lawful conquests.

So it follows that if Australia was invaded, then it has been conquered. This would technically negate claims to separate land rights for descendants of native populations.

Yet the Mabo decision rested on the presumption that Australia was settled, not invaded. Therefore, native title is safe.

You can read Sufi’s full response and references cited here.


Verdict

Sherry Sufi’s claim that “native title can only exist if Australia was settled, not invaded” is incorrect.

Native title is the legal recognition of Aboriginal and Torres Strait Islander peoples’ property rights to Australian land that existed when the English took possession of the territory in 1788. Native title was recognised by the Australian High Court in the 1992 Mabo case.

Had Australia originally been deemed to be conquered – or “invaded” – rather than settled, native title would indeed have existed.

Under English law, if Aboriginal and Torres Strait Islander peoples were conquered, they would have retained their interests in land – or native title – under their own laws, until those laws were overturned by the English.


Responding to Sufi’s argument

As to whether the law deems Australia to have been settled, not invaded, the sources Sufi has cited in his full response to The Conversation are correct.

However, Sufi’s response contains the reason that his claim that “native title can only exist if Australia was settled not invaded” is incorrect.

As Sufi has cited from the 1992 Mabo decision, “the acquisition of property [native title] is chiefly the province of the common law”. Following this, Sufi does not examine the common law rules about land ownership that would apply if Australia had been deemed conquered.

This is the missing link in his original argument, and why the claim is incorrect.

In his article, Sufi justified his claim, in part, on the grounds that “international law recognises all territories acquired through invasion and annexation by force, prior to World War II, as lawful conquests”.

Whether or not that statement in itself is accurate is a matter for an international law expert to determine.

Because even if this is now the status of international law, it concerns the basis of sovereignty in modern times. To the extent that the means of acquiring sovereignty is relevant to native title law, it is sovereignty in 1788 that is relevant.

The High Court of Australia in the 1992 Mabo decision found that an Australian court does not have the power to challenge the basis on which the English claimed sovereignty in 1788.

The status of Australian land law, including native title, is a different matter: it is determined under domestic law, not international law. Australian courts do have the power to alter domestic law, which is what the Court did in Mabo.

So Sufi’s statement about international law, whether correct or incorrect in itself, is not relevant to native title in Australia. The justification does not stand.

Let’s look at the relevant law.

Conquest or settlement?

To assess Sufi’s primary claim, we need to look at what happened when Europeans arrived in Australia in 1788, and at the 1992 Mabo case heard in the Australian High Court, which formed the basis of native title in Australia.

The Mabo case decision is the primary source document for this FactCheck.

In 1788, England sought to establish itself as sovereign – or the governing body – over Australian territory.

There are a number of ways to become sovereign under international law. In considering what happened in Australia in 1788, Justice Brennan – who wrote the leading judgment in Mabo – focused on the three most relevant. They were:

  • conquest – the acquisition of a territory by force,
  • cession – an existing state transfers sovereignty over its territory to another state, or
  • occupation – taking possession of a territory not under the control of an existing sovereign.

In his article, Sufi talks about the consequences of “invasion”. The international law described in Mabo refers to “conquest” rather than invasion. So that’s the term I’ll use in this FactCheck.

Fact or legal fiction?

Of those pathways to becoming sovereign over Australia, the English considered themselves to be ‘occupiers’.

The concept of ‘occupation’ relies on the land being ‘terra nullius’ – or belonging to no one. In its literal sense, this means there were no prior inhabitants in the territory.

Of course, that was not the case in Australia – Aboriginal and Torres Strait Islander peoples had been living in the country for at least 65,000 years before the First Fleet arrived.

But the arriving Europeans took the approach that Australia’s Indigenous peoples were “too low in the scale of social organisation to be acknowledged as possessing rights and interests in land”, and were deemed not to have laws, or to be sovereign over Australia.

This allowed for the application of what Justice Brennan described as an “enlarged notion of terra nullius”, and for the English to deem that they had occupied the land.

It’s important to note that in this case, terra nullius, and therefore occupation, is a ‘legal fiction’: an assertion of a state of affairs deemed by the law to be valid, even though it may not be factual.

Who owns the land?

Having established sovereignty, England needed to determine what law applied in the new colony – and in particular, what law applied to the ownership of land.

This was a question for English law, rather than international law.

Under English law, in territories that were conquered or ceded, the existing laws of the original inhabitants would continue to apply until they were overturned by the English.

Therefore, if Australia had been deemed to be conquered, or “invaded”, the existing laws of Aboriginal and Torres Strait Islander peoples, including laws about land ownership, would have continued to apply until the English repealed them.

However, for territory that had been occupied or settled – as was declared to be the case in Australia – English law would be imported, including English land law. Under that law, the Crown owned all land.

The Mabo decision

These concepts were challenged in the Mabo case in the Australian High Court in 1992.

In the Mabo decision, Justice Brennan stated that the concept of terra nullius ignored the reality of the existing inhabitants of the territory.

The Mabo decision found that the legal fiction that Australia was uninhabited could no longer stand. It acknowledged that Aboriginal and Torres Strait Islander peoples did have a recognised system of laws.

The Mabo decision did not change the international law position that Australia had been occupied. What the Court did do was create a new English law category for working out what law applied: the territory was settled, but inhabited.

Based on this new category, sovereignty and land ownership were separated. The Crown was no longer automatically the owner of all the land.

Instead, the original occupants of Australia – the Aboriginal and Torres Strait Islander peoples – remained the owners until the Crown extinguished their interests, or they were otherwise lost. This is native title.

Conclusion

So, what does that all mean for Sufi’s claim?

Sufi said “native title can only exist if Australia was settled, not invaded”.

In 1788 Australia was, under English law, deemed to be settled. In 1992, the Australian High Court deemed Australia to have been settled, but inhabited. Because of that decision, native title as we know it today does exist. Land law stopped being English land law, and became Australian land law.

Had Australia been deemed to be conquered (or “invaded”), the interests in the land – the native title – would also have existed. Aboriginal and Torres Strait Islander peoples would have continued to own the land until the Crown extinguished those interests.

Either way, whether Australia was deemed to be “invaded” or settled, Australian land law would recognise Indigenous interests in land – that is, it would recognise native title. – Kate Galloway

Blind review

The verdict is clearly correct.

It is not the case that “native title can only exist if Australia was settled, not invaded”.

As this FactCheck points out, it is to the contrary. It has long been a rule of English law that in a colony acquired by conquest the former laws continue to apply until altered by the conqueror, and rights to land continue until they are extinguished.

Some elements of the Mabo decision have been contested by scholars. This is not one of them. It is very clear that native title could exist if Australia were characterised as conquered. – Leon Terrill


The Conversation FactCheck is accredited by the International Fact-Checking Network.

The Conversation’s FactCheck unit is the first fact-checking team in Australia and one of the first worldwide to be accredited by the International Fact-Checking Network, an alliance of fact-checkers hosted at the Poynter Institute in the US. Read more here.

The ConversationHave you seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.

Kate Galloway, Associate Professor of Law

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

Leave a comment

Filed under Reblogs

And then there were two: welcome back ABC Fact Check

The Conversation

Sunanda Creagh, The Conversation

Here at The Conversation, we are committed to publishing evidence-based journalism that aims to inform rather than persuade. In a world flooded with opinions based on alternative versions of reality, we think it’s vital that someone does the heavy lifting of sorting truth from fiction.

It’s one reason why we have been commissioning FactCheck articles written by academics since 2013. And it is why we are so pleased to see the return of the ABC Fact Check unit, which was closed in May 2016 and relaunched today as RMIT ABC Fact Check. In a time of slippery weasel words and “alternative facts”, Australia needs fact checking more than ever and it’s not something we think should be left to just one organisation.

The ABC’s return to fact checking, in collaboration with RMIT, will hopefully get the nation talking about facts, evidence and how we can all become more critical media consumers. It also reminds us of the importance of trust in journalism, and the need for media outlets to be transparent about how we work.

The Conversation’s unique FactCheck process, has been praised as a “unique and fascinating model” by the Poynter Institute in the US. It involves commissioning academic experts from across Australia to pen short articles testing statements by politicians and other public figures against the evidence. We always offer right of reply to the person whose factual claims we are checking.

We then ask a second academic expert to blind review the FactCheck draft. That means they read it without knowing the original author’s identity to check that it really is correct and impartial. The blind review is a crucial step and has helped weed out inaccuracies many times in the past. Our FactCheck Editors challenge both author and blind reviewer to support their own arguments with sourcing and high quality evidence.

Above all, we want our FactChecks to be accurate and fair, and help hold our community and political leaders to account. Our FactChecks have been mentioned in parliament, republished widely and cited by advisers helping to craft policy.

In 2017, we are continuing our collaboration with ABC TV’s Q&A program, in which we ask for viewers to send us panellist statements they’d like to see fact-checked using the hashtags #factcheck #qanda. We’re hoping that the new RMIT ABC Fact Check team will be joining us in this work soon. In the meantime we are hoping to publish more FactChecks than ever, following the expansion of our FactCheck editorial team late last year.

It’s our hope that a healthy fact-check culture in Australia will have us all listening to our public figures with a more critical ear, and asking ourselves: “Hang on, is that really true?”

So far The Conversation has published nearly 200 FactCheck articles and you can read them here. You can also request a new FactCheck at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.

Thanks again for reading The Conversation and for caring about the facts.

The ConversationSunanda Creagh, Editor, The Conversation

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

Leave a comment

Filed under Reblogs

FactCheck: Are Australians paying twice as much for electricity as Americans?

The Conversation

Dylan McConnell, University of Melbourne

Business here and households here, already we’re paying twice the cost of the US for electricity. – Craig Kelly MP, chair of the backbench environment and energy committee, ABC Radio National Breakfast interview, December 6, 2016. (Listen from 7.38)

Environment and energy minister Josh Frydenberg recently left open the possibility of some form of carbon trading in the electricity sector. He later ruled out that option, saying he wanted to keep electricity prices down.

Following Frydenberg’s initial comments, Liberal MP Craig Kelly said businesses and households in Australia are already paying twice as much as Americans for their electricity.

Is that true?

Checking the source

When asked for sources to support his statement, Craig Kelly referred The Conversation to a range of sources, saying that:

… a report titled 2015 Residential Electricity Price Trends lists [on page 212] the average Australian price at 28.72 cents per kilowatt hour for 2014/2015.

In comparison, the US Energy Information Administration lists the average price for residential electricity [in the US] at 10.44 cents for 2014.

Converting 10.44 US cents at A$1/US$0.74 – is the equivalent of 14.11 cents Australia.

So using these sources (in Australian cents) we have 14.11 cents in the USA and 28.72 cents in Australia. Therefore I think to say that “we’re paying twice the cost of the US for electricity” (on average) is pretty much right on the money.

You can read Craig Kelly’s full response here.

Do Australians pay more?

It’s definitely true that Australians pay much more for their electricity than US citizens do (and Australian prices are set to rise even further, according to the Australian Energy Market Commission.

Using OECD data, there’s one measure that says it is twice as much – or at least it was twice as much as recently as 2014. Another measure – a better measure, in my view – shows Australians pay about 50% more than US citizens do for their electricity.

As Craig Kelly notes in his full response, there is significant variation in electricity prices across states and territories in Australia and in the United States, so comparing the two is not a simple matter. The Australian Energy Market Commission’s annual Electricity Price Trends report shows that retail prices in Australia vary from 18.44 c/kWh in the Australian Capital Territory to 29.75 c/KWh in South Australia.

But we can use Organisation for Economic Co-operation and Development (OECD) data on wholesale and retail indices energy prices to check Craig Kelly’s statement.

The wholesale price is the cost of generating the energy that is sent to the grid. Retail prices are what householders are more used to talking about. Retail prices factor in extra costs like transmission and distribution (“poles and wires”), retailer margins and other levies (such as Feed-in Tariff and Renewable Energy Target costs). In other words, it’s what we’re paying on our power bill.

Let’s examine the data.

A tale of two measures

The two measures I have used to compare prices in the US and Australia are called “market exchange rates” and “purchasing power parities”. Craig Kelly’s calculations rely on market exchange rates, so we will start with that one.

Market exchange rates simply means converting the price in one country’s currency to that of another country’s currency, as Kelly did. This measure of comparison is more volatile than purchasing power parity exchange rates.

Using market exchange rates, OECD data show that Australian electricity prices have, in recent years, been approximately twice as high as electricity prices in the US. Recently, the gap has narrowed. In 2015, using market exchange rates, electricity prices in Australia were about 70.3% higher than in the US.

The Australian Energy Market Commission projects that Australian prices will rise even further in coming years.

By converting Australian electricity prices into US dollars (market exchange rates), we can see Australian electricity prices have been an average of twice as high as in the US over the past four years – though the gap narrowed in 2015, down to a 70% difference. Chart provided by author, using data from the OECD.

That broadly supports what Kelly said. But if we use purchasing power parity exchange rates, the data show that Australia’s prices are approximately 50% higher than the US.

Purchasing power parity exchange rates, or PPP, factor in inflation and the cost of living in a particular country, and eliminate differences in price levels between countries. This measure allows a cleaner, less volatile comparison between the US and Australia.

The chart below compares the retail prices of electricity in Australia and the United States when adjusted for cost of living differences using purchasing power parity.

Using purchasing power parity exchange rates, OECD data shows household prices of electricity are approximately 50% higher in Australia than in the US. Chart by author, using data from the OECD.

As the above chart of the OECD data shows, household prices of electricity are about 50% higher in Australia than in the US when you use purchasing power parity data.

Why are the prices so different?

As this chart shows, data from OECD indicate there has been a substantial divergence between Australian and American electricity prices since about 2008.

Retail price index: average power prices for householders in the US and Australia. The year 2000 is indexed to 100 (that is, 2000 = 100) Author provided, using data from the OECD
Wholesale price index: the average price the generators charge to the retailers (or distributors) for the power they put into the grid. The year 2000 is indexed to 100 (that is, 2000 = 100) Author provided, using data from the OECD.

As noted in the preliminary report of the Australian chief scientist Alan Finkel’s review of the National Electricity Market, household energy bills in Australia increased 61% on average between 2008 and 2014.

The main reason for this is the cost of maintaining the electricity network – essentially, the poles and wires that deliver the power. Network costs represent between 45% and 55% of a typical electricity bill. This has been the largest contributor to Australia’s increasing prices over the past six years.

Some observers have said that the “gold-plating” of the network came about because of a regulatory regime that encouraged over-investment in poles and wires. This was been partly driven by an effort to shore up electricity supply and an overestimation of demand.

The US shale gas revolution has also helped keep energy more affordable there than in Australia.

The Productivity Commission reported that, in New South Wales, network costs accounted for 80% of price rises in 2010-11 and 50% of price rises in 2011-12.

Is it really that simple?

Not really. Energy economics is far more complicated than can come across in Kelly’s quick quote or this short FactCheck.

While the Australian price is higher, this doesn’t necessarily mean the cost is higher: Australians use much less energy than Americans. This is because as prices increase, energy productivity and energy efficiency also tend to increase. In total, most countries actually spend a similar proportion of GDP on energy costs.

This holds surprisingly consistent across a range of countries. For example, Japan has high energy prices, but also has high energy efficiency and productivity. Consequently, it spends practically the same amount of GDP on energy cost as the US.

So prices may be higher for individuals, but that doesn’t mean the economy-wide costs are higher. All that said, Kelly was talking about the prices for individuals and business, so that’s what this FactCheck is focused on.

Verdict

If we compare Australian and American electricity prices using market exchange rates, Craig Kelly’s comment is correct: Australia’s electricity prices were essentially double those of the United States as recently as 2014. In 2015, using market exchange rates, the US prices were about 70.3% higher.

If we compare the prices using purchasing parity power exchange rates – which I’d argue is the more accurate reflection of the costs of living in each of the countries – Australia’s prices are about 50% higher than the US.

Overall, Craig Kelly’s broader point is correct: Australians pay a much higher price for their electricity than Americans do. – Dylan McConnell.


Review

I agree with the author’s position that purchasing power parity comparisons are less volatile and more representative of the relativity based on actual living costs. It is true Australian households pay a much higher electricity price than Americans.

There’s one important point I’d add. There is a baseline cost of having a house or business connected to electrical supply, regardless of how much electricity is used. This is called the fixed supply cost. The more electricity a household or business uses, the more the fixed supply cost is diluted in the overall electricity bill. This brings down the cost per kilowatt-hours (kWh).

American households use about twice as much electricity as Australian households. According to the US EIA, average US household electricity consumption in 2015 was 10,812 kWh. 2014 data for Australia shows average Australian household electricity consumption was 5,772 kWh (down from 6,819 kWh in 2008. At 25 cents/kWh that is a saving of $307 for Australians for using less electricity over time).

So we would expect Australian household electricity prices to be higher, because an average Australian household uses less electricity and the large fixed supply costs must be spread across a smaller amount of consumption. This raises the cost per kWh. But because Australians use less, their annual bill may be lower.

Further, in recent years, Australian energy retailers have been raising their fixed supply (or baseline) charges. So small users pay much more overall per unit of electricity they use.

Lastly, it’s worth noting that larger businesses often negotiate much better deals on their electricity prices than householders can. – Alan Pears.


Have you ever seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.

The ConversationDylan McConnell, Researcher at the Australian German Climate and Energy College & the Melbourne Energy Institute, University of Melbourne

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

Leave a comment

Filed under Reblogs