Thursday 25th of July 2024

overkill of whistleblowers and journalists is still in the pipeline...

First phase

At 6.04pm on December 7, 2017, two hours before the Australian Parliament rose for its two-month Christmas-New Year break, Prime Minister Malcolm Turnbull — a former journalist — introduced a Bill that provided jail terms of up to 20 years for journalists reporting in the public interest.

The legislation, the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, applied the penalty to anyone who “communicates” and “deals” with certain information provided by a Commonwealth officer.

The new penalty for “deals” with information would include anyone who receives, possesses, communicates or records the information. In short, the Espionage Bill punishes people for handling information as well as disclosing information in a news story. It means that journalists, as well editorial, production and office support staff and even a media outlet’s legal advisers would be at significant risk of jail time as a result of merely having certain information in their possession in the course of legitimate reporting matters in the public interest.

Even receipt of unsolicited information would put a person in automatic breach. Indeed, if the journalist did receive such information, how could they to know the material was in breach of the law without first possessing, communicating, and dealing with it?

So broad was the Bill that a discussion of unsighted material might place a journalist in breach even without being in possession of a document.

Under the proposed amendments the penalties were increased from the range of six months to seven years jail to a new maximum of 15 years jail for the communicating offence, and a maximum of five years for the dealing offence. But certain security classifications carry an additional five year penalty for each offence.

That wasn’t the only Bill introduced that would harm the media. In another breathtaking example of poor drafting, the Foreign Influence Transparency Scheme Bill 2017 would have an adverse effect on the day-to-day operations of foreign-owned media with Australian operations as well as media outlets that reproduce foreign sourced news, information and entertainment. It would also capture industry bodies making representations to government on behalf of any company in their membership base (and it could be just one member of their membership) that was a company with a foreign principal operating in Australia.

The sweep of this Foreign Influence Bill captures documentary channels on pay television, online newspaper websites and commercial radio stations. It requires them to undertake registration, continuous disclosure of activities that could influence government policy and/or politics, lodging of any documentation in a central register, and subject them to criminal sanctions for noncompliance.

(During January through to March the Joint Media Organisations including MEAA made several submissions and appearances at inquiry public hearings regarding the Foreign Influence Bill — the submissions can be found here:

The dual assault of both bills led to condemnation from a variety of civil society groups including law societies and human rights bodies. Even Government agencies such as the Office of the Inspector-General of Intelligence and Security (IGIS), were blind-sided by the Espionage Bill, unaware of what it contained until it was tabled in the Senate. Indeed, the IGIS wasn’t even able to discuss the Bill with the Attorney-General’s Department until January 30 2018, the day before the IGIS appeared before a Senate hearing into the Bill.

On February 15, three United Nations’ special rapporteurs for human rights issued a joint communique condemning the Espionage Bill legislation[i]. David Kaye, the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Fionnuala D. Ní Aoláin, UN special rapporteur on the promotion and protection of human rights while countering terrorism, and Michel Forst, UN special rapporteur on the situation of human rights defender noted that the Bill was “inconsistent with Australia’s obligations under article 19 of the International Covenant on Civil and Political Rights and related human rights standards.” Australia ratified the Covenant in 1980.

In particular, the UN said, “We are gravely concerned that the Bill would impose draconian criminal penalties on expression and access to information that is central to public debate and accountability in a democratic society. For example, several offences under the Bill would not only penalise disclosures of government information in the public interest, but also expose journalists, activists, and academics that merely receive such information to criminal liability.

“Such extensive criminal prohibitions, coupled with the threat of lengthy custodial sentences and the lack of meaningful defences, are likely to have a disproportionate chilling effect on the work of journalists, whistleblowers, and activists seeking to hold the government accountable to the public. We urge the Committee to reconsider the Bill in line with the human rights standards…”

The UN communique went on to note that: “Although article 19(3) [of the Covenant] recognises ‘national security’ as a legitimate aim, the [UN] Human Rights Council has stressed ‘the need to ensure that invocation of national security, including counter-terrorism, is not used unjustifiably or arbitrarily to restrict the right to freedom of opinion and expression.’ In this regard, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has concluded that national security considerations should be ‘limited in application to situations in which the interest of the whole nation is at stake, which would thereby exclude restrictions in the sole interest of a Government, regime, or power group.’ Additionally, States should “demonstrate the risk that specific expression poses to a definite interest in national security or public order, that the measure chosen complies with necessity and proportionality and is the least restrictive means to protect the interest, and that any restriction is subject to independent oversight.”[ii]

In summary, the communique stated: “We are particularly concerned that these restrictions will disproportionately chill the work of media outlets and journalists, particularly those focused on reporting or investigating government affairs. The lack of clarity concerning these restrictions, coupled with the extreme penalties, may also create an environment that unduly deters and penalizes whistleblowers and the reporting of government wrongdoing more generally.

MEAA together with Joint Media Organisations that form Australia’s Right to Know industry lobbying group, quickly responded with a submission to the Parliamentary Joint Committee on Intelligence and Security inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.[iii] The organisations and MEAA also appeared at the inquiry’s public hearings. The submission said:

We note at the outset of this submission that national security amendment laws continue to undermine the ability of the news media to report in the public interest and keep Australians informed about their environment and communities. This Bill is the latest national security Bill that does this and we again bring these important issues to the attention of the Committee.

The proposed legislation criminalises all steps of news reporting, from gathering and researching of information to publication/communication, and applies criminal risk to journalists, other editorial staff and support staff that knows of the information that is now an offence to ‘deal’ with, hold and communicate.

The Bill is a significant step beyond the existing legislation that applies to Commonwealth officers. This is particularly when it has not been demonstrated that there are “problems” that need to be “fixed”. The result is that fair scrutiny and public interest reporting is increasingly difficult and there is a real risk that journalists could go to jail for doing their jobs.

We recommend that a general public interest/news reporting defence be available for all of the relevant provisions in both the secrecy and espionage elements of the Bill. This is the only way to ensure public interest reporting can continue and Australians are informed of what is going on in their country.

The Espionage Bill establishes a range of new secrecy provisions via new definitions (s90.1(1)) and a new Part 5.6 to be inserted into the Criminal Code Act. These new offences replace current crimes under section 70 (disclosure of information by Commonwealth officers) and section 79 (official secrets) of the Crimes Act 1914.

The submission noted that the new offences apply to all persons, not just Commonwealth officers. This is a significant broadening of the application of the law beyond that encompassed in the legislation that the Bill replaces. Anyone who “communicates” or “deals” with certain information provided by a Commonwealth officer will be in breach of the legislation.


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welcome to the machine...

Welcome to the machine

Even before the Espionage Bill was introduced to Parliament, Australia was already well down the path of legislating prison terms for journalists reporting in the public interest, as Andrew Fowler explains in this edited extract from his book “Shooting the Messenger: Criminalising Journalism”


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flying the flag...

A Nazi swastika has been photographed flying over the vehicle of Australian Defence personnel in Afghanistan.

The photo, obtained exclusively by the ABC, was taken in August 2007.

The photograph shows the large swastika emblem hoisted over an Australian military vehicle.


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flying the flag

liberals in leafy quiet arncliffe...

A New South Wales Liberal Party meeting has seen one man hospitalised after a brawl broke out at a cafe in Sydney's south.

A senior Liberal Party source said the clash was "unprecedented" and a "tragic internal shit fight brought about by the pettiness of politics".

Numerous people were seen running from Naji's Cafe on Firth Street in Arncliffe after police were called just before 7:00pm.

Police have confirmed the cafe is owned by Liberal councillor Michael Nagi. He is one of three councillors who represent the Mascot ward on Bayside Council.


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All's well in Trumble's party... Read from top.


shut up and enjoy the lies...


We used to believe that official lies and propaganda were what Hitler, Stalin, and Mao did, while in democracies like ours people were free to debate and public servants to advise. Ministers took responsibility for their decisions and resigned for misleading us or the Parliament. The trend is now the other way. As the American founding fathers knew, a well-informed public is essential for a functioning democracy. But with unprecedented access to information, we are adrift in a flood of opinion – some of it factual, some false – and we can fish out of it what suits us, or others want us to believe.

Democratic governments foist on us propaganda about an endless "War on Terror" and a succession of enemies – from radical Islam, to Russian assassins, to Chinese spies – frightening citizens into accepting laws that allow unrestricted invigilation of every aspect of their lives. Paradoxically, while our leaders invoke an "international rules-based order", their laws resemble those of tyrannical regimes, preventing citizens from finding out what those in control are doing and making it unlawful even to ask. The more the authorities claim their secrecy is in the "national interest", the less it’s likely that what they are up to is in the public interest.

Such activities can go on for years before we find out about them. Egregious examples have recently emerged in Australia, thanks to two Royal Commissions and what remains of investigative reporting.

Here are some:

  • The release from 90 sites, including RAAF bases and numerous Fire Brigade stations, of carcinogenic chemicals (poly-fluoroalkyl, PFAS) used as fire retardants continued long after their danger to humans and the environment was known. Australia has not yet joined the 171 countries which have banned them. Class actions for compensation are being contested by the Government.
  • The SAS and senior military officers allegedly covered up serious misbehaviour, possibly including war crimes, that occurred in Afghanistan on at least four occasions between 2007 and 2012. Some of them were revealed by Chris Masters in No Front Line; some are still to be revealed after internal inquiries.
  • The abuse of children by clergy in Australian churches and religious institutions was known and concealed for decades, and many allegations remain unresolved by the Royal Commission into Institutional Responses to Child Sexual Abuse.
  • The fraudulent and illegal behaviour of Australian banks and insurance companies would not have been publicised without another Royal Commission (Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry), whose establishment conservative politicians sought to prevent. Its final report is still awaited.
  • Allegations of bribery in Malaysia involving the Reserve Bank’s Securency operation have not been resolved. In June 2015, the Victorian Supreme Court suppressed them. After WikiLeaks published the Court’s order in full in July, the suppression order was lifted (Ben Butler, ‘Bishop finally acknowledges “serious” Najib corruption scandal’, Australian, 29 July 2016).
  • Australian ministers have claimed the "Pacific Solution" sets an example to the world for dealing with asylum seekers. After a 26-year-old Iranian refugee apparently committed suicide, the Refugee Action Coalition reported that he was the 12th person to die in Australian offshore detention and the fifth in Nauru. Australian journalists are not allowed to report on Manus and Nauru and censorship of medical staff was lifted only when they threatened to leave.
  • Australia in 2013, helped in drafting and negotiating the UN Arms Trade Treaty aimed, as the Government announced, ‘to reduce the impact of armed violence on communities around the world’. Yet Australia now seeks to become a military exporter, with part of the defence industry in every state, subsidised by $200 billion of taxpayers’ money. At least that’s not a secret.


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rounding its awful media corners, with "tax lollies"...

When laws are made they become the new normal. They are fiendishly hard to repeal. That’s why it’s urgent we take a closer look at how the government’s proposed espionage and foreign interference bill restricts press freedom.

We should look again even if we accept the need to update espionage legislation to deal with current day threats, even though this bill is less disastrous for journalism than in its original version and is therefore generating less political heat. 

It’s only less controversial because the amended bill has now been accepted by the Labor party and so has the numbers to slide through parliament without registering among all the rest of the shouting. It’s also so complicated that legal experts are still assessing what it means. 

But we know it still definitely broadens the circumstances in which journalism can become a crime and therefore still threatens our ability to hold governments and security agencies to account. That’s not something that should be allowed to slide by.

This bill still expands the definition of “national security”to include not just what we would normally think of as security matters but also Australia’s “political, military and economic relations with other countries”, a definition so broad it could mean pretty much anything. So while the government always had some power to charge journalists under the Crimes Act, under the new laws that power extends to a far broader range of reporting.

The bill also increases potential penalties for journalists reporting such information to 10 years in jail. That certainly focuses the mind.

The government says it does not intend to stymie reporting on national security matters. If it really didn’t, it could have exempted journalism from the provisions of the new laws, as demanded by almost every media organisation in the country.

Instead, in a deal with Labor, it announced softening amendments, the most significant being the ability for journalists to use a reasonable belief that a story was in “the public interest” as a defence against prosecution. 

That gives some comfort, but for a public interest defence to truly protect public interest journalism we’d have to know how “public interest” would be interpreted and we would have to trust governments would not prosecute if there was a reasonable prospect of the defence succeeding, say for example to stop further publications in an investigation it didn’t like. 

Media companies would also need to have enough money to defend themselves if a government did lay charges.


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silencing the scribes...

At a time when journalists have never been more needed to explain the complexities of an increasingly integrated world, they have never been more under threat: jailed in increasing numbers by some of the more authoritarian administrations, threatened with prosecution in the countries which have democratic governments.

There is a real possibility that the overreach of national security laws in the west will damage the very commodity that heightened internet surveillance is supposedly designed to protect: security and liberty.

The ultimate absurdity is that the most extraordinarily liberating communications system invented since the printing press could bring the west down by being turned into a tool of oppression and censorship. Created originally as a way for signals between military commanders to withstand the destructive electromagnetic forces unleashed during a nuclear war, it became a beacon for democracy, encouraging an uninhibited flow of information around the planet.

From a San Francisco newspaper which provided the first online version in the early 1980s, the internet eventually allowed readers to subscribe to just about any newspaper, anywhere in the world. Television went online, transmitting its programs across international borders. Information stored in the world’s libraries was available at the click of mouse. 

But now the internet, which couldn’t be shut down by a nuclear attack, is subject to assault from within. The offices of government that played a role in its building want to take back the control they lost when the public gained access and embraced it as its own.


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Unfortunately, despite a few voices, too few scribes are batting for the truth. For example the reveals by Assange and Snowden have been used by the media in a voyeuristic manner, but these have quickly been diluted into a "ah-so-what attitude" by a bored biffo-loving media. Most media (and their embedded journos) are too comfortable and they are happy to promote the neoconservative agenda: presently it's bash Assad, blame Putin, Glory to the Dollar, down with Bitcoins,  make war, not diplomacy (and should you do diplomacy, make sure there is the threat of war at the end of the stick). The list is long.

As well, the duality between the Neo-cons and the Neo-democrats is fully staged managed between medias with the end result being that socialism is worse than terrorism and we need to be "liberal Nazis" in our dealings with them to protect the furniture.

As Snowden suggest, people are still powerless despite "having been made aware". This is because the governments and their embedded media have cleverly turned the tables and have promoted the concept that should we not do these bad things to defend "our freedom" to destroy other countries, your lives would be worse. Enjoy your sweet comfortable middle.

So in order to maintain the upper hand in a more disturbing "social media" — the social media being a mixed bag of inanity about semi-naked starlets with barge-arses and articles from half-wits like us here who go to the ultra-right or the ultra-left edges of the spectrum —  governments will "crack-down" on journalists.

The reality is that no journalist can have access to the full shitty spectrum contained in the cesspool of "liberal/conservative" governments which is a capitalistic hydra with two heads. That we vote, for one head or the other, is only "academic"— in the way we draw the same curtain across to the right or slightly to the left... as long as the rich dudes get richer, all is well, and our enemy is Mr Putin.


And not a peep in the "free-press" about getting Assange out of his hell-hole and be a free-man again.

One of the excuses used by (even decent) journalists is that Assange "published information that could endanger the lives of our glorious operatives doing shit in other other countries". Unforgivable of the media to say this, but that's their bread and butter coming from basically fascisticaloliberalconservative governments feeding crumbs to the chooks.

"trust us, we're the government"...

The Australian parliament is about to pass a complex package of national security laws aimed at strengthening Australia’s protections against espionage, sabotage, (covert) foreign interference and (overt) harmful foreign influence on Australian political life. The real target is China, but Russia makes a convenient public scapegoat drawing on current US/UK precedents. The draft laws which now appear to have bipartisan support are significantly improved from the first government drafts released for public comment in December 2017. Nevertheless they take Australia in an illiberal direction.

The legislation is a defensive McCarthyist response by Australia’s security and mainstream media elites to the erosion of United States power and will to protect Australia. These groups cannot bear the thought that as Chinese and Russian global power grows, Australia must now radically review its great power and Asia-Pacific region relationships. Instead, Australia’s elites seek to intimidate Australia’s richly diverse plural society into docile obedience to the national security dogma of the day, whatever the cost to Australians’ traditional rights to free speech and free association with anybody they wish, wherever they wish.

The draft legislation presented to Parliament by the Turnbull government was fearfully Orwellian . It attracted a storm of critical complaint to the respected bipartisan Parliamentary Joint Committee on Intelligence and Security (PJCIS), tasked to review the bill – as to its opacity, sweeping coverage, and huge discretionary powers to Ministers. Over the next six months came a flood of critical submissions and oral testimonies expressing grave concerns about how the draft laws would impact on diverse individuals and groups in society: universities and independent researchers, finance, mainstream and online media, legal profession, charities and aid groups, particular diaspora communities like the 1.2 million strong Chinese Australian  communities , political and social activist  organisations like Get Up, religious organisations, and  human rights organisations.

This quiet rebellion, under-reported by Australian mainstream media, was a significant exercise in citizen democracy. It led finally to significant drafting improvements to legislation which initially seemed obsessively determined to ‘capture everything’ in its nets of activities that were either illegal or, even if legal, had to be reported on pain of severe fines or jail terms. Crucial definitions like ‘foreign principal’ and the range of lawful activities that would require registration as agents of foreign influence have been greatly tightened up.

These controversial laws are now set fair to be passed soon, after indications of Coalition and Labor parties’ agreement to support their latest improved versions.

To illustrate issues at stake, here is a revealing exchange in the final PJCIS public session on 18 June last week between Senator Eric Abetz, a senior member of the Liberal Government’s dominant hard right faction, and two witnesses from respected charities, Oxfam and Pew Charitable Trusts, which regularly deal with foreign governments and agencies close to foreign governments:  (18 June 2018, PJCIS draft Hansard, page 29)

The witnesses pleaded for better definition of what conduct would require organisations like theirs to register as agents of foreign influence, or face severe penalties ? Their comments apply well beyond their own specific areas. They were asking what was meant by the phrase used in the legislation of ‘arrangements’ entered into by Australian organisations with foreign principals? Mr O’Leary spoke of ‘a sense of uncertainty’ around this phrase. Abetz replied that the requirement to register would only apply ‘if an arrangement had been entered into’. There followed this extraordinary exchange:

MS BALL: Our concern is that, as it is drafted at the moment, there is not sufficient clarity that would allow us to rely on the fact that only arrangements where we were doing the bidding of a foreign principal were in fact caught. Given the severity of the penalties and the importance of our reputation in terms of our ability to pursue our mission, we wouldn’t be able to take that risk. So what we’re suggesting is that the bill be clarified so that it is certain that we are talking about circumstances where in Australia we’re doing the bidding of a foreign principal, as opposed to operating in partnership with them, learning from them, working together with them and then drawing on that when we come back and do advocacy in Australia.

MR O’LEARY: Or even just informing them of what we would be doing in Australia in the course of a normal set of discussions.

ABETZ:  The drafting of legislation does not take into account every conceivable exemption. It just talks about the evil that is sought to be overcome. You don’t have every exemption under the sun as to what is dangerous driving, for example. You can be prosecuted for dangerous driving, but we won’t consider this, this and this to be dangerous driving. You could get a list as long as you like.

Abetz concluded:

I think you guys are completely in the clear unless you were starting to do the bidding of a foreign agent or a foreign government

In other words: ‘Trust us, we are the government’. In a nutshell, this exchange symbolises what many groups in Australian society fear about this package of McCarthyist laws. Especially when it was admitted that resource constraints meant that the state would only pursue persons suspected of being agents of influence of the most important target countries, like China and Russia. Agents of US, UK or Israeli influence, could rest easy.

It still looks a bit like Henry VII’s Star Chamber – guilty till proved innocent.

Some remain deeply worried: former Greens Senator Scott Ludlum trenchantly criticised the bills’ erosion of civil liberties and freedom to dissent.

Get Up received legal advice that the Espionage and Foreign Interference Bill may breach the constitution’s implied freedom of political communication, and criminalise peaceful protest.

Concerns were expressed in PJCIS testimony that political protest actions causing temporary symbolic damage e.g. to detention centre premises, shale oil fracking sites, coal export railway lines or port facilities, may be heavily penalised by vengeful Ministers under the sabotage to national infrastructure provisions of these bills.

There are worries about new provisions that the Attorney-General may register as agents of foreign influence people who decline to so register but whom he thinks should have done so.

The Chinese Australian communities, whose demographic diversity makes it worryingly vulnerable to intimidation by nativist propaganda under these bills, will try to make the best of a bad situation.

There will undoubtedly be important test cases to come, which will test the scope of the amended laws. In this litigation, the searching interrogation over the past six months of the laws by Opposition members of the PJCIS will certainly be a resource for defendants’ lawyers.

Estimates of number of people likely to register as agents of foreign influence has steadily shrunk from thousands to hundreds down now to low tens.

The draft laws are not yet silk purses by a long shot. But they are better than they were in January.

I have declared that I will not register as an agent of foreign influence, because I am confident that in maintaining my past practice of writing and speaking freely on foreign policy issues of interest to me as an Australian citizen, and maintaining free associations with foreign persons of my choice including Russian and Chinese citizens, and travelling freely to countries of my choice including Russia or China, I will not be making myself liable to such registration.

This is because I am confident that I have not acted, and will not act, in ways that might raise questions about whether I am acting by arrangement with, in association with, on behalf of, or at the behest of, any foreign principal , as these  terms are defined in the legislation and accompanying explanatory memoranda.

This may seem obvious now, but it was by no means obvious at the beginning of the public examination and review process in January. Then, this draft legislation truly was a sow’s ear. Now, we do not quite know what it will turn out to be.

Tony Kevin, a former Australian senior diplomat, is an independent non-fiction author. His most recent book is ‘Return to Moscow’, a literary travel memoir published by UWA Publishing in 2017.




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why woud you become a journo is aussieland?...

New Australian bill introduces some of the toughest legislation anywhere in the world for refusing to hand over personal data, while other Western countries are scrambling for their own solutions.

Existing legislation already allows for imprisonment for up to two years for failing to give investigators access when serious crime is involved, but the new Assistance and Access bill, which has gone out for public consultation, before being voted on later on this year, raises the punishment to 10 years.

The Department of Home Affairs says the document is seeking a “reasonable and proportionate response” to such violations.

“Encryption and other forms of electronic protection… are being employed by terrorists, child sex offenders and criminal organisations to mask illegal conduct. The exploitation of modern communications technology for illicit ends is a significant obstacle to the lawful access of communications by Australia’s law enforcement and national security agencies,” says its intro.

To give weight to its proposal, the ministry gives an example of a pedophile rapist, who was using mobile messengers to offer drugs to underage teens in exchange for sex. 

“The suspect was arrested and his mobile phone was seized but despite legislative requirements he refused to provide his passcode. Due to an inability to access his phone as well as the fact that he used encrypted communication methods such as Snapchat and Facebook Messenger, Victoria Police was unable to access evidence which would have enabled them to secure a successful prosecution and identify further victims and offences,” goes the case study.

The US has no standard practice for such scenarios, and there has been legal debate whether such requests from the police – with or without a warrant – are a violation of constitutional rights. A Florida man was jailed for six months for contempt of court in July for failing to open his phone communication after a suspected drug arrest. The UK has also used contempt of court for similar instances, but the sentences have usually been measured in months, not years.


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Why woud you become a journo is Aussieland?... the pay is lousy, the bias is de rigour, booze and smokes have been banned at the office, the deadlines are murderous, you have to be an IT expert, a speed-writer and put your life on the line in such dangerous places you would not send your pet rat to, you need to do stand ups in front of fires and/or do cartwheels in Antarctica, deny global warming should you be working for Mr Murdoch, ignore the shenanigans of the government, lick Dutton's butt, and drive a clapped out car while your boss drives a Maserati (he sold it recently) and the police deflates your bicycle tyres every second day... And you could be shot at...

I understand why journos like Malcolm became politicians. It's safer and the pay is fantastic since you vote it yourself...