Month: May 2019

Bravo Prime Minister Scott Morrison! How many of those very few who predicted his re-election also foresaw that he would announce shortly after that he is “committed” to constitutional recognition? Good. None of you. And yet for the Prime Minister it is brilliant politics.

As he is all but solely being credited with the election victory, how impressive if he can use his unchallenged authority to wrong-foot his critics and steer a bipartisan push – that would help heal the national divide – towards something important that is so long overdue? Yes, an actual legacy!

Would the hard right of media and politics bitterly criticise the Prime Minister, if he pushed it hard? Perhaps, a very little. But he would get support, and respect, from broad swathes of those to the left of him who could never have imagined him being so wise.

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For at issue are some deep truths in our national story. The central point of the First Peoples is that they never ceded sovereignty in the first place, and that the Australian Constitution is therefore built on a false premise is simply irrefutable. The aspect that particularly interests me – as one now finishing the final draft of a book on Captain Cook – is the first claim of British sovereignty on these lands. Given the importance of the current debate for both recognition and the coming Australian republic, I have gone deeply into what happened.

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In the last half of August 1770, Captain Cook is just coming to the northern end of the east coast of “New Holland” – Australia – whereupon the plan is to turn west, ideally to go across the top of the continent and get to the Dutch outpost of Batavia before heading home.

But before leaving these climes, there is something he must do, which is why the Endeavour drops anchor beside an island just to the west of the tip of “Cape York”, as he names it.

Shortly after he is rowed ashore by 12 marines, in the company of botanist Joseph Banks among others. After climbing a hill on the island to determine the best way through the many shoals, Cook descends to rejoin the marines, all glittering in their red coats, white breeches and tricorn hats. They have been ordered to dress in the most formal of their finery. It is time to perform a particular ceremony.

First the Union Jack is taken from its pack, attached to a pole, and lifted high. Now taking the Letters Patent from his inside pocket, Captain Cook makes a statement whereby in the name of King George III, Captain Cook does hereby claim for Great Britain “the Eastern Coast [of New Holland] from the Latitude of 38 degrees South . . . to this place”.

At the conclusion of his words, the marines, with their muskets pointed to the sky fire off three volleys. Within a minute the reply is answered with three joyous volleys of muskets from the ship.

It is done. From the point of view of Great Britain at least, this ancient land is now the sovereign territory of Great Britain. The ancient land itself does not blink, just as her ancient people have not the tiniest awareness of the significance of what has occurred.

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This act of claiming possession by Captain Cook – he subsequently calls the place “Possession Island” and marks it on his map – will of course, resonate through the ages, with every era interpreting it differently, according to the mores of the time. For imperial Britain, it was just another act of appropriation, of no more particular significance at the time, than the other. As ever, Cook was eager to follow orders and this was simply a matter of following his instructions from Admiralty to “with the Consent of the Natives . . . take Possession of Convenient Situations in the Country in the Name of the King of Great Britain”.

What is more, “if you find the Country uninhabited take Possession for his Majesty by setting up Proper Marks and Inscriptions, as first discoverers and possessors.”

Now, under the circumstances, claiming possession “with the Consent of the Natives”, is simply not possible. This is first because on this island here are none to be found who could consent, second because even if there were the Indigenous did not have a concept of themselves owning a land that could be ceded, so much as themselves being of the land. And finally because even if a few tribal elders could have been found to agree to hand over land on which their people had lived since the Dreamtime, there is no way they could be speaking for the other 750,000 Indigenous people living in Australia at a time, speaking more than 700 different languages and dialects.

The act was a sham, a British conceit which an enlightened age must concede did not establish British sovereignty.

Of course righting so many ancient wrongs of history is not possible. But giving recognition in the constitution to the First Peoples via a Voice to Parliament is a good start, and if Scott Morrison – with no doubt the full support of Anthony Albanese – can push that through in this term of Parliament, both will be on the right side of history, will be remembered for it and we, as a people, will be stronger.

Twitter: @Peter_Fitz

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Gas, not coal, was the fossil fuel that would take the traditional energy industry into the future, a national industry conference has been told.

The annual Australian Petroleum Production and Exploration Association (APPEA) conference is being held in Brisbane this week, with the result of the recent federal election front of many delegate’s minds.

APPEA chair and Shell Australia chief Zoe Yujnovich said in the wake of the election result, which saw the Coalition returned to power, the industry had an opportunity to “plant the seeds of positive public debate” around energy.

“In the wake of the election, when armchair experts are hoarse from shouting, we have a real opportunity to drive real change,” she said.

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“What we can do now is assist this Coalition government to overcome the tumult that has surrounded energy and resources policy in Australia for too long.”

Ms Yujnovich said natural gas was the way forward for the traditional energy sector, because it enabled investment in renewables by providing the baseline power which coal currently does.

She said getting the message out that natural gas was an ally, not an enemy, of renewable energy was key if the sector wanted to move forward with the support of the general public.

“Armed with megaphones or iPhones, an increasing number of professional activists and increasing numbers of ideologically driven volunteers are waging a virtual war with religious zealotry,” she said.

“What the industry needs to avoid is being drawn into the trap of either/or debates.

“These opposition constructs … create face-offs between mutually beneficial technologies.

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As Ms Yujnovich spoke there was an environmental demonstration outside the convention centre, protesting the industry in general and the process of fracking to extract gas.

Philip Winzer from the Seed Indigenous Youth Climate Network said the environmental downside to the gas production industry outweighed its benefit as a transitional energy source.

“Opening up new areas to dangerous gas and oil fracking and drilling will unleash a massive carbon bomb on our communities and the world, and poses an unacceptable risk to health of country and communities,” Mr Winzer said.

“APPEA are not acting in our best interests and need to be called out for their destructive projects that devastate local communities and the climate.”

The high-profile example environmental campaigners point to is that of Linc Energy, which was charged in 2014 with serious environmental breaches at its underground coal gasification plant at Chinchilla.

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That process of extraction has now been banned after local groundwater was severely contaminated, with companies using different methods to extract gas.

Despite that, Queensland Natural Resources Minister Anthony Lynham said gas was important to the Queensland economy and would be a way forward as they transitioned to renewable power generation.

“Fracking remains a sensitive issue, and there is much work for us to do in dispelling the fear and providing the community with more information on this practise,” Dr Lynham said.

“There is much for this industry to be proud of, for what it has done in this state.”

Dr Lynham used the opportunity to announce that energy company Senex had been awarded the contract to explored 153 square kilometres near Miles in regional Queensland for gas.

The gas produced would be earmarked for Australian supply only.

Queensland supplies about a quarter of the current east coast demand for gas, and that demand was expected to increase in the coming years.

Contentious laws such as council mergers or the greyhound ban would be put to community focus groups to stop "half-baked policies" being rushed through NSW Parliament under a "revolutionary proposal" to be considered on Tuesday.

One Nation MP Mark Latham will move a motion to overhaul law-making in the upper house following lobbying from former NSW Treasury secretary Percy Allan.

A long-time public servant and now an academic, Mr Allan has been urging Premier Gladys Berejiklian, the Labor opposition and crossbench MPs to consider a new approach to controversial laws.

Mr Allan said the upper house could be the most "informed house of review in the country" if it changed how it developed critical policies.

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"The crossbench and the opposition are supportive of the proposal and the government is open to it, so I hope everyone will look past any differences they may have with One Nation and support it," Mr Allan said.

"This is about divulging all the information about a problem, putting it on the table and testing it with the community and stakeholder groups before it goes ahead."

Mr Latham said the most problematic NSW laws in recent times had been "rushed, ill-considered legislation and decision-making", such as the greyhound racing ban, lockout laws and council mergers.

"In a sense, this will save the government from itself," Mr Latham said.

"This will slow down some legislation but doing things in haste can just entrench unpopular policies that will linger well into the future. This process can get contentious matters right from the outset."

Last year, Mr Allan chaired a project for the newDemocracy Foundation with two ideologically opposed think tanks that rated how 20 state and federal government policies were developed.

The traditionally left-leaning Per Capita and free market think tank the Institute of Public Affairs singled out four policies as having an "unacceptable" level of rigour, including NSW's local council mergers policy and the federal government's same-sex marriage postal survey.

"Governments lose support because of half-baked policies foisted onto an unwitting public which provokes a backlash," Mr Allan said.

But Mr Allan said ministers could avoid "damage to their reputations" if they involved the community before a potentially unpopular policy was passed as law.

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Under the process, all the relevant facts and figures about the social, economic, environmental or other problems that contentious legislation is meant to address would be detailed in a green paper.

Mr Allan said there would also be alternative solutions to fixing the problem, and the "pros and cons" and costs and benefits for all the policy options would be outlined.

The green paper would then be put to "impartial community groups" as well as stakeholders, with their responses and the government's decision contained in a final white paper.

"There is no parliament in Australia that insists on a ministerial bill being preceded by a document that captures the evidence and public views on a particular issue," Mr Allan said.

Ms Berejiklian has signalled she wants a significant shake-up of both houses of NSW Parliament to make it a place for "modern and progressive debate".

The Premier has asked that the president of Legislative Council, John Ajaka, and the Speaker of the Legislative Assembly, Jonathan O'Dea, report back to her by June 30, with changes to be made for the spring session of Parliament.

Mr O'Dea said the standing order and procedures committee was very keen to improve they way the lower house operated.

"We want to make the lower house more accountable, more efficient, more engaging for the public and more respectful," Mr O'Dea said.

David Pocock's Super Rugby career is over effective immediately, the world's best openside flanker declaring: "It's time to finish in Australia, this is it".

Pocock will announce his Australian domestic rugby retirement on Tuesday morning after it was decided to rule him out for the rest of the Super Rugby season.

The 31-year-old, however, still hopes he can recover from a torn calf in time to play for the Wallabies at the World Cup after being limited to just three games in the past seven months.

Pocock has playing commitments in Japan after the World Cup, but it is likely he will use the tournament as an international swan song and retire fully when his Panasonic Wild Knights deal ends.

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Pocock met with Brumbies and Wallabies medical staff last week to decide the best action for recovery. All parties agreed it was best to make the World Cup a priority to avoid being a distraction for the Brumbies' charge to the finals.

"It's the tough call, but it's the right call," Pocock said. "Often the right call is the harder one to make. It gives us all a bit of clarity going forward … Everyone has been talking to each other trying to come up with a plan to get back [on the field].

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"I think it's starting to sink in [I won't play again for the Brumbies]. But it's been so good to watch how well the Brumbies have been going and the hard work pay off, I'm so proud of what the group's been doing.

"To not be a part of that is very disappointing, but I'll keep contributing and doing what I can to help out."

Pocock will now train in Canberra with the sole purpose of being fit for the Wallabies.

"The goal is to get to the World Cup, I'll be doing absolutely everything I can to get there," he said.

His on-field absence is a cruel blow for the Brumbies, who are trying to force their way back into the finals by winning their remaining three games of the regular season.

It's also a frustrating and brutal way for Pocock to finish his injury-plagued tenure in Canberra after leaving the Western Force to join the Brumbies at the end of 2012.

Pocock has played just 43 of 100 games since becoming arguably the biggest recruit in the franchise's history. He had two knee reconstructions in 2013 and 2014, ruling him out for those entire seasons.

Pocock hasn't played a game since he felt a strain in his calf on March 8 after initially tearing the muscle at a Wallabies pre-season camp in January.

He will finish his Super Rugby career after 112 games, while he still has a chance to add to his 77 Test caps for Australia.

Pocock made his Super Rugby debut as a teenager in 2006 and was picked for his first Wallabies Test in 2008, forging a career as one of the best on-ballers in world rugby.

His presence off the field was just as influential, leading conversations for social change by campaigning for action on climate change and same-sex marriage.

Rugby was always one of his passions, but the game has taken a massive toll on his body in recent years after being targeted by opponents trying to curb his impact at the breakdown.

The main concern going into this year was his neck, but the pre-season injury has had a far greater impact in forcing Pocock to call time on his playing days.

He considered playing on given his minimal game time this year, but decided this season should be his last.

The Wallabies, however, are keen for Pocock to leave the door ajar for 2020 and beyond given he will be eligible for selection even if he is playing abroad.

"But I think this is it. I haven't put anything in stone, but I think that's it," Pocock said. "I feel like I've put a lot into my rugby, I've got a huge amount out of it and I'm very grateful for the opportunities I've had.

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"But there's plenty of other stuff out there to do, and it's time to start stepping into whatever that's going to be.

"There's some excitement about the future … it's also pretty scary in other ways. Like every professional athlete who gets to the end, there are a lot of unknowns. It's all about seeing what opportunities are out there and going for it."

Pocock thanked the Brumbies and the club's fans for sticking by him even when he was unable to play.

"The Brumbies have given me a home for the last seven years. They've supported me through injury and given me the opportunity to work on my game and my leadership as part of an incredible group of men," Pocock said. "After 13 years of professional rugby, I'm looking forward to the challenges the rest of this year holds and also thinking about what comes next.

"The Brumbies and all supporters have been very good to me since my move to Canberra in 2013. I am grateful for their support."

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When Uncle Jack Charles talks people listen.

In part that’s because it can be hard to get a word in edgeways once the self-confessed “loudmouth” is in full flow.

But mostly it’s because of the credibility that comes not only from the veteran Indigenous actor’s successful stage and screen career but also from his many years of homelessness, heroin addiction, thievery and prison time.

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Since 2005, having kicked his habit for good, he has wielded that credibility and authority to increasing effect, working with Indigenous prisoners and taking a leading role among his own Boon Wurrung people.

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Now a fit and sprightly 75, Charles on Monday received the National Indigenous Arts Awards Red Ochre Award for outstanding lifetime achievement. The other recipient is Tasmanian shell artist Aunty Lola Greeno.

Charles' acting career spans six decades, from The Chant of Jimmie Blacksmith to the hugely successful autobiographical play Jack Charles V The Crown and more recent TV roles in Cleverman and Wolf Creek.

He modestly calls his award "a testament to my longevity". However, he is also clearly delighted by the recognition, as well as the wider platform it gives him to advocate on behalf of Indigenous communities.

"I've always been an activist even in my addictive days," he says. "But I really knew underneath it that I couldn't be taken seriously because I was talking under the lens of addiction."

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For 20 years Charles, a survivor of the Stolen Generation, "wilted under the pulling power of the white powder" until he turned it all around with a healing program called Marumali that he completed in jail.

"It was designed to tweak our consciences, entice us into getting back to basics and to understand our heritage," he says. "It worked."

Charles is receiving his award two years after the Uluru Statement from the Heart called for an agreement between the government and Australia's First Nations and "truth-telling" about Indigenous history. The significance of the timing is not lost on him.

"Treaty is a filthy word in Australia," he says. "Everybody, black and white, has different notions of a treaty. The point is we do have to have a pact. We do have to talk. No one has offered me another way forward. So treaty it is.

"Australia is uniquely and peculiarly racist against Aboriginal people. They are denying Indigenous history. Australia has to go through its own kind of truth and reconciliation commission like all other countries that had wars fought on their lands."

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Charles remains frustrated by some in the Indigenous community, who he says have become rich from government programs at the expense of those they were designed to help.

"Being an old thief I cry loudest when I see injustice, corruption and embezzlement," he says. "My job is to show by example. We need honesty and integrity."

Despite all the challenges, he remains positive about future for black and white Australia.

"I'm always hopeful. With addiction you become very much the pessimist but now I'm shot of addiction and seeing things in a new black light, as it were. I've become the great optimist."

When Kevin Walters threw decades of Queensland Origin tradition out the window by forgoing underdog status in favour of a bullish, ''expect to win'' mentality, it was a startling change in tack from the Maroons coach.

Now his motivations have become clearer: Walters has been working with Bradley Charles Stubbs, the famed 'Coach Whisperer' who has been a secret weapon behind at least two NRL premierships, an A-League crown and an ally of numerous high-profile national team mentors, including Michael Cheika, Eddie Jones and Graham Arnold.

Walters and Stubbs were pictured on the former's Twitter account on May 8 soon after Walters had completed one of Stubbs' 'Expect To Win' sessions, which cost $5500 for an hour of mind-coaching. The QRL has confirmed Walters sought out Stubbs for guidance as part of his annual professional development.

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'EXPECT TO WIN' blared the tweet and Walters echoed that time and again as he went on the front foot following the Maroons team announcement. He 'expects to win' game one and gave a glowing endorsement of the members of his 17-man squad that has been tasked with the job.

"We’re ready. This is war. This Queensland team is going to be so prepared for this match. We’re at home and are going to put on a performance everyone can be proud of. It’s on," Walters said.

"I’m here to talk about the Queensland team and how good a side … a great side … that we’ve picked for Origin I. The belief is there … I expect to win game one for the Maroons. With the team we’ve picked, I expect to win game one.

"The other team, they can do what they want. My focus is this Queensland side and getting the ultimate performance from them on Wednesday night and I expect that performance. If we get that performance, we will win. And I expect that to happen."

It was a press conference that had all the hallmarks of some of the Coach Whisperer's key messages. In an interview with the Herald in 2018, Stubbs said he put a huge emphasis on public statements from coaches. Like Yoda, he doesn't tolerate the word 'try'. Words like 'hope' and 'maybe' are fellow pariahs.

The 'other team' Walters was referring to was NSW. He steadfastly refused to comment on the Blues, or even say their name, which has been another Stubbs tactic in the past. He once instructed former Sydney FC coach Graham Arnold to drop the 'Victory' from rivals 'Melbourne' and had Cheika call the All Blacks simply 'New Zealand'.

Something must work. He was on board at stages with Trent Robinson and Michael Maguire when the Roosters and Souths won their most recent premierships and now wears a premiership ring Robinson gave him as a sign of gratitude.

He has clearly had an impact on Walters as well, who has wholeheartedly embraced some of his ideas as he tries to steal a march on the Blues in game one in Brisbane.

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There was the occasional slip-up when Walters caught himself going off-message. "We want to …" he said, before adjusting the sentence. "We will win game one and that's why we picked those players."

QRL managing director Rob Moore said Walters had run the idea past his employer and they endorsed his chosen personal development path for the year. Previously, he had gone to the UK to work with some leading rugby coaches.

"We had a couple of chats and he said he wouldn’t mind doing a bit of work with him, which is what happened," Moore said.

"That’s one of the good things about Kevvie, he’s looking to develop himself all the time as well. Each year he does one and when he rang me about this one, I had a bit of a look and he’s worked with some pretty impressive people in the past. So why not?

"We sign off on it and I thought it was a good thing to do, something a little bit different. I felt it was of really good benefit."

Stubbs replied to messages from the Herald but didn't elaborate on his work with Walters. He does relatively little media but provided some insights last year into his methods, which he said he had developed over three decades of study.

“It’s all about us: the next training session, the next weights session,” Stubbs said. "You never talk about the opposition. Because I’ve studied the human mind for over 30 years, there are such things as 'power words' that the subconscious mind reacts to."

That is all well and good but now Walters must hope he has sufficiently empowered his side enough to deliver against the current holders of the Origin shield. If not, it will only give NSW more mud to sling his way should they take out the series again.

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Coral and algae species subjected to more acidic seawater showed no acclimatisation to the new conditions for over a year, a new study has found, suggesting that vulnerable reefs may not be able adapt fast enough to cope with climate change.

With oceans absorbing about 22 million tonnes of carbon dioxide from the atmosphere a day, seas have already become about 30 per cent more acidic over the past two centuries.

Shell-forming creatures from oysters to types of plankton are increasingly at risk from the changes, which have been called the "evil twin" – along with higher temperatures – of climate change.

A team of scientists exposed four coral and two coralline, or calcifying algal, species to varying ocean acidity levels for a year at the Moorea reef in French Polynesia to test their responses.

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They found "completely no change over a year", said Christopher Cornwall, a researcher based at Victoria University in Wellington, and an author of the paper published in Nature Climate Change on Tuesday.

"We expected that over the course of the year they would slowly get acclimatised," Dr Cornwall said. "In reality they displayed the same responses at the start and the end of the experiment."

Since some coral species are known to be more tolerant of lower pH water than others, they would be expected to become more dominant over time as ocean acidification increases – provided they can cope with the marine heatwaves that trigger bleaching events.

The stability of the reefs themselves, though, could be undermined if the calcifying algae become less productive, Dr Cornwall said.

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"The reef itself will start to erode as all of those calcifying organisms are no longer producing that calcium carbonate," Dr Cornwall said. "Ocean acidification is kind of like the death blow after these warming events  have been happening … there's nowhere to get refuge from that."

Ken Anthony, principal research scientist at the Australian Institute of Marine Science, said ocean acidification was a "more precise indicator than temperature" of what's happening in the biosphere as CO2 levels rise.

On current emissions trajectories, global ocean pH levels could drop to as low as 7.8, Dr Anthony said. Even at 8, all sorts of physiological changes can be expected, including entire ocean food chains being placed at risk.

"Even fish larvae's nervous systems get affected [by more acidic water]," he said. "Macro algae also grows faster so that suddenly weedy algae are much more successful in over-growing corals."

Dr Anthony, who was not one of the paper's authors, said he was "not surprised by these results", adding it "would have been wonderful" if adaptation had happened so fast.

He noted the study had focused on adult corals and algae, and future studies could be extended to look at juvenile and larvae "that are often more susceptible". Longer studies would also be helpful.

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A separate study by AIMS researchers, meanwhile, has found the relatively pristine and remote coral reefs of Western Australia are increasingly being affected by heat stress and coral bleaching.

"For most (75 per cent) reef systems with long-term data (of five to 26 years), mean coral cover is currently at (or near) the lowest on record and a full recovery is unlikely if disturbances continue to intensify with climate change," the paper found.

Research should focus on identifying which reef systems are "least susceptible to future disturbances" and they should be preserved "through networks of protected areas", it said.

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If the first two days are any guide, Sydney's travelling public has spoken – they want more frequent and reliable train services.

A staggering 140,000 people travelled on a new 36-kilometre metro line between Chatswood and Rouse Hill in the city's north west on the opening day on Sunday, forcing the private operator to quickly put on more trains to clear crowds.

A day later, 21,000 commuters chose to hop on driverless trains on the $7.3 billion Metro Northwest line in the first five hours, significantly higher than the 15,000 to 17,000 forecast.

It left wide smiles on the faces of Premier Gladys Berejiklian and her closest transport advisers such as Rodd Staples, the NSW Transport Secretary and architect of the metro project.

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The new line finally offers an option to many people in the north west who have long relied on their cars or buses to get around.

But it does not alleviate many of the increasing stresses on the existing heavy rail network, nor parts of the city starved of public transport options.

With a fast-growing population, the public's response to the new line will embolden the Premier to accelerate ambitious plans for a mostly underground metro train line between the central city and Parramatta known as Sydney Metro West.

Yet it is important that the existing heavy rail system is not forgotten in the rush for shiny new train lines. Sydney Trains' suburban rail network, some of which is about 160 years old, will carry the bulk of the city's rail commuters for decades to come.

It is under acute pressure from surging patronage, and will need all the care – and funding – it can get. And its success is as important, if not more, for much of the travelling public than new metro lines.

With the city's next metro line due to open by 2024, it is imperative that it and those that follow are integrated into the existing rail network in a way that results in improved services overall.

Commuters want a quick and reliable public transport system. Favouring one form of rail service over another will not achieve that outcome.

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Hong Kong's second-richest man, Lee Shau Kee, is stepping down as chairman of Henderson Land Development, joining the ranks of the city's aging tycoons handing the reins to the next generation.

The 91-year-old billionaire announced his retirement from the top post before the developer's annual meeting Tuesday. While he remains as an executive director at the firm he founded 46 years ago, his sons Peter Lee Ka Kit and Martin Lee Ka Shing will take over as co-chairmen and oversee its mainland and Hong Kong businesses respectively.

His imminent retirement, which he flagged in March because of his advanced age, comes as other tycoons hand the baton to the younger generation. Li Ka-shing, the city's richest man, last year put his son Victor in charge of the family businesses, while David Li of the Bank of East Asia last week stepped down after a 38-year tenure as CEO, the longest for a major Hong Kong-listed company.

In a farewell interview, Lee said he was positive about the outlook for the property market in Hong Kong.

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"The current market still enjoys substantial housing demand, mainly because interest rates are quite low, and also because Chinese people like to have their own properties," said the nonagenarian, who is worth an estimated $US25 billion ($36.1 billion) according to the Bloomberg Billionaires Index.

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"Therefore, investments tend to gear toward properties."

Home prices in the real-estate obsessed city are near record highs, having risen for the past three months. The rebound – fueled by low interest rates and the perennial shortage of housing – makes a sudden slide late last year look like a temporary blip in the relentless increase in property values.

Lee also cited close ties with mainland China as a favorable factor for the property market. UBS Group AG earlier this month forecast house prices will rise for another decade, helped by an influx of residents to the Greater Bay Area – a project that integrates a group of mainland Chinese cities with Hong Kong.

Known as 'Uncle Four' due to being the fourth child in his family, Lee is part of a generation of Chinese tycoons who immigrated to Hong Kong in the mid-20th century, a period of turmoil on the mainland, and built companies that have grown to dominate the local business scene.

He has left his mark on Hong Kong. Henderson Land was one of the developers of the International Finance Centre, the city's second-tallest skyscraper. Among more than 100 residential projects, the firm built the luxury 39 Conduit Rd. apartments, where in 2009 a unit sold for HK$439 million ($56 million), a then-record price per square foot in the city, according to the New York Times.

In 2017, the company paid a record $3 billion for a car park in Central, which is being developed into an office building.

Lee started his career in currency and gold trading before moving into property. In 1958, along with seven partners including prominent Chinese businessmen Kwok Tak Seng and Fung King Hey, Lee created a real estate business. Five years later, he founded Sun Hung Kai Properties – now the city's biggest developer – with Kwok and Fung but left in 1973 to start Henderson Land.

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The city he helped build is in good shape, Lee said.

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"Hong Kong still enjoys a good business environment. The tax system is simple and the tax rate is attractive," he said. "The comprehensive legal system and the cluster of talents enable Hong Kong to maintain its status as an international financial center.

"When I was young, I experienced the period of war and turmoil. Life was very hard back then, but I survived through the adversity and continued to build my career. Comparatively speaking, Hong Kong is already a paradise. I really have no fear nor worry," he said.

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The Australian Competition and Consumer Commission, in opposing the proposed merger of Vodafone and TPG Telecom, has focused on the implications for competition if TPG doesn’t build the fourth mobile network. Perhaps it should have paid more attention on the implications for Vodafone if it did.

As it happens, TPG, after the federal government banned the use of Huawei’s equipment in 5G networks, ditched its plans and wrote off $228 million it had already invested.

It has essentially said that, without access to the cheapest technology for its original small-cell based 4G network and an upgrade path to 5G that only Huawei could have provided, there is no credible business case for it to realise its initial ambition.

The ACCC, however, opposed the merger on the basis that, if it blocked it, TPG might change its mind and reactivate the plan.

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On Friday, Vodafone filed a statement of claim with the Federal Court seeking a declaration that the merger would not have the effect, or be likely to have the effect, of substantially lessening competition in any market.

In essence, it is asking the Federal Court to over-rule the ACCC’s judgment and conclude that the combination of two businesses that don’t compete today won’t result in a substantial lessening of competition in future.

It raises another layer to the counter-factual to the ACCC’s position.

In making the case for the merger of Vodafone’s mobile business and TPG’s fixed line operations, the merger partners have argued that, givent TPG has abandoned its plan to build its own network, the combination would strengthen competition in both the wireless and fixed markets by creating a stronger competitor to Telstra (the dominant player in both markets) and Optus.

It would give the combined business a bigger customer base and a strengthened financial position to fund the increasing capital requirements in the mobile telecommunications sector as Telstra and Optus roll out 5G networks.

It would also generate economies of scale to offset the margin squeeze occurring for fixed line resellers like TPG as the national broadband network nears completion of its rollout.

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They haven’t previously argued that the merger might be not just an escape route for TPG from that squeeze on its existing fixed line business but the salvation of a Vodafone business that has been chronically unprofitable.

Friday’s filing doesn’t make that case explicitly but the factual base for it is laid out.

Vodafone has been operating in this market since 1993, initially alone. In 2009 it merged its Australian business with Hutchison Telecom’s.

It is doubtful that Vodafone Australia has ever been profitable but since 2015, at least, it has been technically insolvent –its total liabilities ($9.11 billion) exceed its total assets ($8.19 billion). It survives because its debts are either guaranteed or provided by its two shareholders.

Over the past five years, according to its filing, they have invested about $4.6 billion in the business while incurring losses totalling $1.63 billion. The ACCC appears to believe that, absent the merger, they would continue to fund those losses and guarantee Vodafone Australia’s debt indefinitely.

To remain competitive with Telstra and Optus, Vodafone will have to upgrade its network to 5G.

Its existing 4G network also uses Huawei technology and it had planned to use Huawei’s leading edge 5G equipment to upgrade the network to 5G.

The government’s ban on the Chinese vendor means the upgrade, supposed to start last year, has been significantly delayed and will cost materially more, even as the relentless increases in the volumes of data carried on its 4G network continue to increase congestion.

Over the past five years, the average data downloaded onto mobile phones has increased roughly five-fold and data inclusions in mobile plans have soared even as average revenues per user have fallen.

Vodafone needs to make very large investments in 5G to be competitive with Telstra and Optus but there is no meaningful incremental return on those investments in prospect, at least in the near term.

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With a co-parent, Vodafone Plc , whose share price is trading at its lowest levels for nearly a decade and which has been exiting some markets (most recently New Zealand, where it was the market leader in mobiles), to focus on its European operations there is no guarantee that Vodafone and Hutchison will keep writing large cheques for a business that doesn’t make money.

If the merger were allowed, not only would the merged entity have a bigger and stronger balance sheet , greater customer mass and some operational synergies, it could use TPG’s spectrum holdings and the small cells that it has deployed to ameliorate its network congestion and expand its coverage.

The Vodafone challenge is unlikely to be heard until late this year but will be a test of the ACCC’s ability to regulate market structures that don’t exist today but which it believes (despite, in this case, TPG’s strong assertions to the contrary and the commercial logic that underpins them) might exist in future.

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