Articles – Page 30

War on Democracy

In 1953 a bitter Bertolt Brecht wrote, ‘Would it not be easier / In that case for the government / To dissolve the people / And elect another?’

With these lines, Brecht brilliantly captured the dripping contempt that some purportedly ‘democratic’ leaders have for those below them.

This contempt has only become more acute in recent decades. Brecht’s words were rich in irony. He was a citizen of the German Democratic Republic — a state democratic in name only — and wrote his poem in the aftermath of the Uprising of 1953, which was crushed by Soviet forces stationed in Germany.

By contrast, in 21st century Australia we enjoy all the trappings of a mature, well-functioning democracy. But our liberty makes the persistence of such contempt starker.

That contempt is a thread joining a huge number of recent debates. It ties the Gillard government’s proposed anti-discrimination changes with the brief furore over compulsory voting and paternalistic controls over what we eat and drink. The belief — widespread but never stated boldly — is that it is the job of democratic politicians to change the character of the people they govern.

In the 21st century, with all the cutting edge findings of behavioural economics, public health and organisational psychology, politicians no longer dream of electing a new people. They can just change them. With the judicious application of legislation and rule-making, Australians can be made better.

It’s hard to think of anything more undemocratic than that.

Changing the way we are

On 20 March 2013, the government finally admitted that its draft Human Rights and Anti-Discrimination Bill was bunk. The new Commonwealth Attorney General, Mark Dreyfus, announced that he had sent the bill back to his department for a rethink — effectively shelving it until after the next election, which, given the dire state of Labor’s prospects in March, is pretty much abandoning the entire project. The bill was toxic. Labor would not spend any more political capital on it.

But this was all the end of a long story. For the two months after the draft Bill was released in November 2012, the then Attorney General Nicola Roxon, other government ministers, and the taxpayer-funded human rights lobby were staunchly supportive of the bill as it stood. They wanted it to pass. They wanted its restrictions on our personal interactions and relationships to be given the force of Commonwealth law. The bill might be dead. But its profound consequences remain important: this is what the government, and its supporters in obscure lobby groups, actually wanted to do to the Australian public.

The draft anti-discrimination bill was truly radical. At its worst it would have made it unlawful to offend somebody because of their political opinions in any work-related area. It does other things (for instance, it reverses the burden of proof onto the defendant) but this is the most significant. The consequences would have been devastating for our interpersonal relations. It would have opened almost unlimited opportunities for lawsuits based on an individual’s opinions.

The legislation was so broadly, absurdly drafted that somebody could claim they were offended by anything as long as it was hypothetically possible that they could, in the future, be associated with somebody who had a ‘protected attribute’ — like a political opinion. This sounds ridiculous but that’s what the draft legislation said.

Most people do not expect to be sued by their colleagues. And the human rights lobby claimed that absurdities would be stopped by the Australian Human Rights Commission, which ‘conciliates’ each anti-discrimination claim before it goes off to court.

But risk management doesn’twork like that. We can only obey the law as it is written, not the arbitrary judgments of bureaucrats and courts. Had the legislation been introduced in its original form, every prudent human resources team would shut down controversial — that is, potentially offensive and unlawful — speech in the workplace. They just couldn’t risk it.

This, it seems, was the point. It was clear before the furious public reaction that this was intended to be a substantial and new era of litigation in the name of anti-discrimination; that the government and its supporters hoped to massively increase the number of anti-discrimination claims. In other words, they believed Australians should have more ways to take each other to court, more grounds on which to do so, and more chances at being successful.

The bill would have made litigation a central element in our interpersonal relationships. The constant threat of court action would hang over every Australian workplace — or anywhere that could conceivably be ‘work-related’. This would be a particularly insidious way to corrupt a society.

The bill, as written, presented to the public, and defended by Nicola Roxon for two months, was not a bill about protecting vulnerable people from discrimination. Anti-discrimination is a settled area of law. No, the draft bill created a new body of law. By fudging a crucial distinction between discrimination and harassment it created an entirely original offence: being disagreeable.

The terms offend and insult come from section 18C of the Racial Discrimination Act, the section which the Federal Court decided that Andrew Bolt breached in November 2011. This has the advantage of interpretative convenience (courts have already considered in detail what ‘offend’ means) but it also suggests a larger strategy.

When section 18C was added to the Racial Discrimination Act in 1995 the purpose was not merely to punish hate speech but to change attitudes. As an approving Senate Committee report argued, the section would ‘set a social standard for the community’. So section 18C is significant for more reasons than simply that it restricts freedom of expression.

In my book In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt, I argued that freedom of speech is merely the outward function of a deeper freedom: freedom of thought. Our ancestors described this liberty as freedom of conscience. The goal of legislation like the Racial Discrimination Act or the Human Rights and Anti-Discrimination Bill isn’t to restrict speech per se, it is to alter thoughts.

Indeed, these pieces of legislation are not aimed at simply changing the way we relate to each other, but changing the way we are.

John Stuart Mill made the point that to censor something wasn’t merely to infringe the liberty of a speaker, but the liberty of those who would like to listen. That is, those who might be convinced.

No one disagrees that racism is despicable. Discrimination on the basis of prejudice is despicable. But, in the words of Australia’s diplomats who opposed some of the international law that requires elaborate anti-speech laws, ‘people [cannot] be legislated into morality’. Law must reflect moral truths, certainly — it must protect life, liberty, and property — but if the law tries to impose its vision of an ideal virtuous citizen, it will inevitably overreach. Indeed, deliberately trying to manipulate the behaviour or beliefs or attitudes of a citizenry is outside the legitimate realm of action of a democratic government.

To see why, we need to look at another illustration of the contempt democratic politicians have for those who put them into power: compulsory voting.

Government as educator

When the Newman government in Queensland floated the idea of Queensland ending the compulsory voting system that was introduced there for the first time in Australia in 1915, the reactions were predictable. Labor luminaries from Prime Minister Gillard on down condemned it. In their view, to make the act of voting a matter of personal choice would be an assault on democracy.

This is obviously absurd. We are one of the very few countries in the world that have compulsory voting. Would Gillard describe the United Kingdom, or France, or Germany as undemocratic?

Support for compulsory voting is deeply felt: in the rare times that it is debated it quickly becomes emotive. We have always been forced to vote in Australia — at least for most in living memory — so it feels somehow intrinsic to democracy. To abandon it would be to move towards a non-democracy. Debates over voting tend to feature words like ‘tyranny’ and ‘dictatorship’.

But more than this, almost all debates about compulsory voting in Australia quickly move to the merits of democracy in the United States. America is seen as a society where a) extremists are in control, and b) the majority of the citizens are completely disengaged. In this view, compulsory voting is a legal mechanism to force people to be interested — a life-long version of compulsory education.

In this way, compulsory voting is seen as a form of mandatory engagement. If we weren’t forced to vote, so the argument goes, we wouldn’t care. We wouldn’t pay attention to politics, we wouldn’t inform ourselves of the best candidate, and many of us wouldn’t vote at all. As the Australian Electoral Commission puts it, by forcing us to vote we are taught the ‘benefits of political participation’.

This is a somewhat circular piece of logic. All compulsory voting does is paper over political disengagement; it merely obscures the phenomenon rather than eliminates it. (Political disengagement is typically measured by voter turnout, but if you make turnout compulsory then it is no longer a measure of disengagement.)

People have fought and died for universal suffrage over centuries. There was much blood split to win the right to vote. Australia took that right and turned it into a requirement. This was a very Australian thing to do. Our government has given us the right to vote but doesn’t trust us to use it.

In other words, we have failed the government, rather than the government has failed us.

Democracy

Compulsory voting upends the most basic principle of democratic government. All governments need legitimacy. In the case of modern totalitarianism, that legitimacy is brute force. Theocracies claim to take their legitimacy from God or Allah. Democracies, by contrast, draw their legitimacy from the consent of the governed.

Democratic governments are subordinate to the choices of those they rule — indeed, ‘rule’ is a somewhat archaic concept in democratic theory, considering that the wishes of the people are seen as superior to that of the executive government.

So, given that democratic legitimacy is founded on the consent of the governed, what right does a democratic government have to change the behaviour, or seek to control the speech, or thoughts of those that put it in power?

Brecht’s great irony — that governments wish the people could be dissolved like a parliament and replaced — is that it reverses the conceit of democracy. The East German democracy he lived under was a sham. Ours is real. But our political authorities nonetheless seem to believe that the people who elect them are incompetent and incapable.

Nanny State policies — those regulations which control what we eat or drink or whether we have food handling certificates at school fetes — epitomise this reversal of authority. There are many obnoxious Nanny State measures in modern Australia but think briefly about the inherent logic of the most recent and high profile one: are Australians so easily manipulated, so lacking in autonomy, that they are unable to handle the way a cigarette packet is coloured or decorated? The Federal government spent a great deal of time choosing the right shade of greenish brown to maximise the ugliness of its new plain packaging for tobacco products.

The assumption that a corporation could convince somebody to take up an unhealthy habit simply because of a shiny packet speaks poorly for the beliefs of our politicians about the Australian citizenry. If they can’t be trusted with colour, then how can they be trusted with the vote? How can a government, elected by these easily manipulated dimwits, ever consider itself to be a fully legitimate one?

There’s a basic philosophy at the heart of a democratic system. It’s a sort of political egalitarianism. All citizens, no matter what their opinions, what their intelligence or knowledge, have a right to contribute to the decision about who governs them. All citizens may not be equal in ability but they are equal morally and politically. The ignorant have as many rights as the informed. The intelligent have as many rights as the foolish. The modern contempt of the average citizen — the average voter — attacks the very heart of this philosophy.

Right of centre thinkers have conceived many critiques of modern democracy. Classical thinkers like the American founders worried that the majority can impose their preferences on the minority. Modern liberals worry that an increasing proportion of the population are dependent on state welfare benefits, and will unsustainably vote to increase their share.

But if we see democracy as a manifestation of the principle of political equality — that the ruled are superior to the rulers — then the problem with modern governments isn’t that they’re too democratic. It’s that they’re not democratic enough.

Anything You Don’t Say May Be Used Against You

The first sentence of the press release announcing the New South Wales Government’s changes to the right to silence read: “The scales of justice will be tilted towards common sense.”

Yes, “common sense”.

We should be terrified when professional politicians start talking about common sense. Rights are always undermined by euphemism.

The O’Farrell Government’s right to silence changes passed the NSW Parliament last Thursday. From now on, NSW Police will qualify their standard police caution “you are not obliged to say or do anything unless you wish to do so” with this sentence: “But it may harm your defence if you do not mention when questioned something you later rely on in court.”

In other words, you’re welcome to stay silent, but you might regret it.

Juries will be allowed to “draw an unfavourable inference” from the fact that somebody decided to remain silent before a case got to court.

Courts have identified two parts of the right to silence. The first is your right to say nothing when being questioned by the police. The NSW reforms do not directly remove the right in this first sense.

The second part is the right not to have that silence used against you at trial. And it is this right that has been comprehensively trounced by the changes.

What good is a right if you are told you could well be punished for using it? The second part of the right to silence gives substance to the first part. It is disingenuous to suggest otherwise.

Most serious analyses of the right to silence are done by legal academics. Understandably, they focus on how judges and courts understand the right. So we get a lot of discussion about famous cases and High Court appeals and jury instructions.

But much of this misses the point. The Government has been transparent about what it believes the purpose of its reforms are – not to alter the way courts think about the right to silence, but how accused people think about it.

A police interrogation is presumably an uncomfortable occasion, whether you are guilty or innocent. When the facts of a case are unclear, the accusation is unclear, the accused may be confused, intimidated, and off-balance, the new standard police caution becomes little more than bullying. How are they supposed to know what they will later rely on in court? How specific will they have to be?

What was originally an unambiguous protection for people accused of a crime – if you are unsure of yourself or out of your depth, stay silent until you can fully consider your legal position – is now vague and imprecise and threatening. The fact that a lawyer must be present is no comfort.

This piece in the Conversation on Friday makes it clear how devilishly complex removing the right to silence can be. The NSW changes are based on a similar reform in the United Kingdom back in 1994. The new doctrine has become a “notorious minefield”, yet has had no effect on conviction rates.

The right to silence is one of the more unloved rights. It is being slowly written out of the legal canon.

The police don’t like it. One paper published in 2000 in the Australian Federal Police magazine argues that the development of the right to silence was simply “an over-reaction to tyranny”. That tyranny was the early modern English star chamber, which used torture to coerce suspects to talk.

But then again, there’s probably loads of evidentiary rules and accountability requirements that some police think get in the way of speedy convictions. That a legal protection is often used is no reason to get rid of it.

And politicians don’t like it. Obviously, elected officials adore a good law and order crackdown. The upside gains are huge. Nobody likes crime. The downside risks are tiny. Civil libertarianism doesn’t swing elections. Even federal politicians are desperate to get in on the action. Julia Gillard told Western Sydney she wants to fight gangs. Tony Abbott wants to roll out CCTV surveillance.

The push against the right to silence isn’t limited to criminal procedure. There were no less than eight pieces of legislation passed in the Commonwealth Parliament last year that limited this crucial right. (I wrote about one of those – an anti-illegal immigrant bill – on the Drum in September.)

Earlier this month, the NSW Attorney-General Greg Smith said that the changes would make trials “more efficient”.

What a horrible thought. The entire English criminal system is designed to make it hard to convict someone. What Greg Smith calls inefficiency is better called protection of the innocent.

Beware Elite Technocrats And Their Open Disdain For Democracy

The draft of the proposed European Union constitution in 2003 included this quote, from ancient Greek historian Thucydides: “Our constitution … is called a democracy because power is in the hands not of a minority but of the greatest number.”

That quote didn’t make the final version of the constitution (which was rejected in 2005). A good thing too. It would have been cruelly ironic. The European Union is the exact opposite of Thucydides’ ideal.

Modern Europe shows just what happens when societies grant extraordinary power to elites and technocratic experts. Europe’s slow-burn sovereign debt crisis is exposing a massive chasm between the elite who run the European Union’s political and economic institutions, and the European citizens who have to live with their decisions.

Last weekend, citizens of Cyprus learnt all their bank accounts were going to be subject to a one-time tax of at least 6.7 per cent in return for an economic bailout.

The deal was presented as a fait accompli, negotiated between a new Cyprus president (he’d only been in the job a few weeks) and a bevy of banking officials and European bureaucrats. Approval by the Cypriot Parliament was to be a mere formality. It had all been decided.

But the bailout deal fell apart last week in the face of a massive popular backlash. People in Cyprus are like people all over the world. They don’t like it when the government steals their money without warning. One of the chants heard outside the Parliament was: “They’re drinking our blood.”

It has long been understood that the European Union has a democratic deficit. But that deficit is cripplingly obvious now that the continent is deep in economic crisis.

Indeed, much of the original idea for the European Union itself was fundamentally anti-democratic. After World War II, European statesmen worried that voters were too easily manipulated. This was a reasonable feeling at the time; Adolf Hitler did very well at the ballot box.

So the structure of European governance was explicitly designed to be full of unelected positions, as far removed from actual voters as possible. But operating out of sterile tower blocks in Brussels, Eurocrats have developed an active disdain for democracy.

As the president of the European Commission, Jose Manuel Barroso, has said: “Decisions taken by the most democratic institutions in the world are very often wrong.”

Of course, nobody has suggested otherwise – but so what? The choice isn’t between making the right decisions or wrong decisions. It’s whether the citizens run the government or a cadre of elites do.

Anyway, the most tragic mistake made by Europe in recent decades wasn’t a national one. It was the euro currency – narrowly pushed through a series of referendums in 1992.

The euro has trapped 17 countries together in a spiral of doom. Some will survive the landing. Rich and prosperous states such as Germany will be fine. Others, such as Cyprus, Italy and Greece, have learnt that by joining the eurozone they’ve handed over their sovereignty to Brussels and their economic policy to Frankfurt.

And when the global financial crisis hit, these latter countries discovered that European authorities held extraordinary power over them.

In 2011, Greek prime minister George Papandreou proposed a referendum on a bailout package his country had been offered. He was quickly forced to step down and replaced by a former president of the European Central Bank; in other words, a European bureaucrat from central casting. According to British politician Daniel Hannan, this was nothing less than a coup d’etat. Recall that Greece is the cradle of democracy.

Of course, it was always obviously absurd that such economically disparate countries would be able to share a currency. The euro was condemned from left to right. Both Milton Friedman and Paul Krugman were vehemently opposed. But whether it would work wasn’t the point. There has always been a belief in Brussels that European integration is the most important political goal imaginable. European integration is an ideological project pretending to be an inevitability. Few can be more ideological than technocrats.

You can understand why people think handing power over to experts and political elites sounds appealing. We tend to talk about public policy as if it is merely a question of matching a problem to its best solution – the only challenge is finding that solution.

You hear such sentiments in the business community all the time. If only we could get politicians out of the way and just get things done.

That’s the theory behind all these supposedly independent government agencies we have in Australia.

But if you want to see what happens when you hand too much political power to experts, have a look at Europe. It’s not pretty.

Media Reform And A Missed Opportunity

Has Stephen Conroy forgotten why he began this media debate?

It wasn’t because of the phone hacking scandal in the United Kingdom. Nor was it Bob Brown describing News Limited papers as the “hate media”.

And it certainly wasn’t any discernible community unhappiness about the Australian Press Council. (Media Watch might be obsessed with newspaper codes of ethics but please try to remember that Media Watch is not a representative sample of the population.)

No, none of that. In 2010, Conroy launched an inquiry that the communications and media sector had long been desperate for – the Convergence Review.

This review was meant to take a holistic look at the way the technological change was undermining the regulations that govern media, telecommunications, and broadcasting. It was quite an undertaking. We’ve more than a century of built-up regulatory frameworks which limit what media we can enjoy and the circumstances in which we can enjoy it. It is universally agreed these frameworks are out of date and counter-productive. I covered some of the issues in the Drum in 2011.

Indeed, the Convergence Review was everything the Howard government’s 2006 media reform changes should have been. It was forward-thinking and technologically aware – rare qualities for government inquiries. Politicians like to talk about future-proofing but they’re always focused on the politics of the day.

(There was a smaller, now-forgotten review into converging media back in the days of Richard Alston. Nothing came of it. The government was mired in the grubby politics of the switch to digital television broadcasting.)

Sixty-nine separate organisations, from Skype to Blind Citizens Australia, gave submissions on the Convergence Review’s draft terms of reference alone.

The review released five comprehensive discussion papers and one interim report. There were hundreds of submissions along the way. There were public hearings in eight cities. The final report, published in March 2012, was 200 pages long.

I don’t want to be too complimentary. That final report had many problems. It had been given an impossible task. The Convergence Review had to a) radically overhaul the current regulatory framework to meet future challenges, and b) please all beneficiaries of the existing system. These two demands conflict. And then it tried to shoehorn itself into the debate about newspaper standards, exceeding its mandate and undermining its broader purpose.

Nevertheless, from a purely public policy perspective, dealing with the winds of change brought about by technological innovation was the main game. It still is.

We have to be much less generous about the Independent Inquiry into Media and Media Regulation, known as the Finkelstein Review. The end result – a 400-page report that traversed history, sociology, political science, psychology and media studies at a barely-undergraduate level – was in equal parts patronising and authoritarian. It recommended extraordinary government regulation of the free press.

Still, very little of all that effort comes out in the final media reform proposals. Last Tuesday Stephen Conroy supposedly announced his response to the Convergence Review and the Finkelstein review.

The Government wants a new Public Interest Media Advocate to regulate newspaper standards bodies (like the Australian Press Council) and to impose a public interest test on media mergers. He also wants to legislate a permanent cut in broadcasting licences, marginally increase Australian content requirements, and to tinker with the ABC’s charter.

Conroy says we’ve spent the last few years debating media regulation but these proposals are entirely new.

There’s no “Public Interest Media Advocate” in either the Convergence or Finkelstein review.

Admittedly, the idea of a “public interest test” did appear in the Convergence Review. But it was a tiny sliver of a much broader proposal to rationalise media regulation across all platforms. To rip three words out of the Convergence Review is to miss the point entirely. The purpose of the public interest test, as conceived in Convergence Review, is to completely remove “the old platform-specific media ownership rules”. Conroy doesn’t plan to do anything of the sort.

The Government has offered nothing – absolutely nothing – to deal with the issues raised by technological change.

For its part, the Finkelstein report inadvertently showed how far the media policy debate had moved from media reality.

The final Finkelstein report was released in March 2012. It had two jobs. The first was to investigate standards and media codes of practice. This received all the attention. But its second job was to look at technological change and how that affects media business models. Here’s an exact quote from the final report:

major newspaper publishers confidently presented a positive assessment of their future prospects.

Of course, just over three months later Fairfax media announced one of the single biggest restructurings in Australian media history, shedding nearly 2,000 staff. News Limited cut staff as well. Finkelstein was released in March. By June it was an anachronism.

And now we’re here. Conroy’s proposed Public Interest Media Advocate has serious freedom of the press problems. Those have been well-canvassed over the last week.

But of greater long-term importance is how a much-needed investigation into regulation and technological change turned into little more than a platform for politicians to express their feelings about Rupert Murdoch.

And what on earth is the use of that? All this sound and fury could achieve is just an extended exercise in political gamesmanship.

Another wildly missed opportunity. Another government distracted from necessary reform in the pursuit of its political agenda.

Tea Party Paul’s Stand For Civil Liberties

Rand Paul’s epic filibuster in the United States Senate last week wasn’t just an important moment in the debate over executive power and drone warfare. It’s an important moment in the history of the Tea Party, even the conservative movement.

Paul’s Tea Party credentials are impeccable. He wrote a book in 2011, The Tea Party Goes to Washington. The 54-member Tea Party Caucus – a congressional organisation for like-minded Tea-partiers – was apparently his idea. He gave the Tea Party’s response to Barack Obama’s latest State of the Union.

Our ideas of the Tea Party are pretty entrenched. Either you think that the Tea Party is a white, racist, gun-toting, revolt of the middle class, or… well… in Australia it’s not clear there is an alternative view.

The international press has been hopeless on the significance of the Tea Party. The same media outlets that romanticised the Occupy movement stereotyped and dismissed the Tea Party as some arch-conservative uprising.

So it’s a big deal that Tea Party Paul made international headlines by standing up to the Obama administration on a distinctly civil liberties issue.

Paul used the confirmation of John Brennan for Central Intelligence Agency director to demand a full explanation of the legal basis for using drones to kill citizens and non-combatants.

The complete transcript is here, if you feel like reading a lazy 68,000 words, but this Guardian piece has some of the highlights.

The most memorable hypothetical in his 13-hour filibuster was this: under the administration’s drone policy, Barack Obama could order that American citizens “be killed in a café in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky.”

Supporters of Obama have been quick to say this is an absurd scenario – there’s no way the president would do anything of the sort.

But Paul’s point was not that the hypothetical was likely, but that the administration does not appear to believe there is any legal impediment to sending a Hellfire missile into a San Francisco café.

Constitutional government should have strict limits on what it can and cannot do. Citizens shouldn’t have to count on their president being a good guy.

To see just how many people have wilfully missed Paul’s point, check out this self-satisfied “fact-check”, which has determined that the hypothetical is “False” but admits the White House hasn’t strictly ruled out that it has such power.

And the only reason this debate has been rekindled is because a Tea Party senator made a symbolic 13-hour stand.

The next day the Attorney General Eric Holder sent this sharp letter to Paul, saying the president does not have the authority to kill an American not engaged in combat on American soil. Paul quickly claimed victory. But Holder’s reply is more ambiguous than it first appears. And it doesn’t tackle the broader issue: there are few statutory checks on the drone program. Drones are the iconic example of the growth of executive power in the Obama age.

At the Atlantic, Conor Friedersdorf has an interesting piece about how the mainstream press got Rand Paul wrong from the start. They obsessed about his views on the 50-year-old Civil Rights Act while ignoring his civil libertarianism and foreign policy.

Compare Paul to the so-called “moderate” Republicans – those who stand against the wild-eyed Tea Party radicals holding the nation to ransom.

The doyen of moderation, John McCain, said Paul’s filibuster was merely a “stunt”. Lindsey Graham, another storied moderate in the Senate, addressed his colleagues mournfully: “to my party, I’m a bit disappointed that you no longer apparently think we’re at war.”

Graham later said Rand’s filibuster had persuaded him to support Brennan, as it had “become a referendum on the drone program”.

Yes, those moderates who are so admired in the Australian press used dissent against Obama’s war powers as a reason to support them. Just as a few years ago those moderates supported George W Bush’s extraordinary spending spree, foreign policy adventurism, and trouncing of civil liberties.

Yet we’re told it is the Tea Party which is dangerous.

Paul is not a prince of libertarian purity, by any means. He’s both more conservative and more mainstream than his father, Ron Paul. Nor is the Tea Party ideologically pure – it is part conservative and part libertarian.

Still, the rush of support from other congressional Republicans for Paul’s unambiguous stand on civil liberties is significant. He was even praised by the usually pro-war Rush Limbaugh for defending “the freedom and liberty of the people of the United States”. Limbaugh went on to mock John McCain.

Like everything that happens in politics we could dismiss this as partisan opportunism.

But since the Tea Party burst onto the scene to reject the bank bailouts, it has threatened a more general outbreak of libertarianism within the GOP.

Every Republican now believes Federal spending needs to be cut. Big government conservatism is completely discredited. That is in no small part because of the Tea Party. It’s easy to forget that more government spending at home was as much a part of the neo-conservative agenda as foreign interventionism was. Remember “compassionate conservatism”?

We know there is a Republican constituency for civil liberties and limiting executive power, even after a decade of anti-terror abuses. There were some promising hints of foreign policy modesty during the last Republican primary campaign. Rand Paul’s filibuster is an important moment. Let’s hope it is also a turning point too.

The Left Is Misguided When It Uses A Bill Of Rights To Distribute Wealth

How protected are our rights to free speech? Two rulings of the High Court last week have brought the question into focus.

The court upheld an Adelaide bylaw that bans preaching on a city street and a federal law that forbids offensive material being sent through the post. These rulings can be added to the Gillard government’s anti-discrimination bill (which would make it unlawful to offend someone’s political opinions at work) and the proposed regulation of newspapers and blogs.

All of these laws, existing and proposed, would be quickly slapped down in US courts as laughably unconstitutional. The American bill of rights is very powerful. The First Amendment unambiguously protects free speech, free press and religion.

Yet in Australia, bills of rights haven’t had much support by liberals and conservatives. The reason is simple. The First Amendment was written more than two centuries ago. Modern bills of rights tend to increase government power, rather than limit it. This is because our human rights advocates believe that to protect human rights we simply have to transpose United Nations treaties onto Australian law.

In recent inquiries, those advocates have called for a rights act to guarantee everything from free university to welfare – all because they’re in UN documents. The UN even thinks we have a human right to high speed internet.

Instead of protecting people from the government, these ”rights” are all about obligations – obliging taxpayers to give more money to the government so it can fund more stuff.

The distinction is important. America’s Bill of Rights starts bluntly: “Congress shall make no law” restraining speech or religion. It’s all about protecting people from their government. By contrast, the UN International Covenant on Economic, Social and Cultural Rights says governments must guarantee food, clothing, and housing; that governments have a responsibility “to improve methods of production, conservation and distribution of food”; that governments must ensure an “equitable distribution of world food supplies”.

In other words, governments should control more things, tax more things, redistribute more things.

If the left want to understand the reason their opponents are sceptical about modern human rights, well, there you have it.

What would a conservative or liberal bill of rights look like? It would have to be entrenched within the constitution. It would have to mean something.

Courts would be able to enforce it. Labor attorney-general Rob Hulls was very proud of introducing Victoria’s Charter of Rights in 2006 but the government can – and his government did – ignore that charter whenever convenient with no consequence. Why fill the statute books with motherhood statements? A bill of rights is a radical measure, not a tool for political self-congratulation.

Yet politicians don’t like the idea of a constitutionally entrenched bill of rights. It might prevent them from doing whatever they want. The Rudd government forbade the National Human Rights Consultation report (which received 35,000 submissions) from considering anything that would reduce Parliament’s “sovereignty”. But that’s the point – to stop Parliament from trampling our liberties. Anything less is a waste of time.

In Britain, Tories opposed to Tony Blair’s labyrinth Human Rights Act want to replace it with a minimalist British Bill of Rights. Their proposal would protect ”headline” liberties rather than a mishmash of economic and cultural aspirations. We could introduce something similar.

Such a bill would guarantee freedom of religion and association and protect people against incarceration without trial and all that good stuff. It could also have rigorous protection for property rights, for instance, and it would not dilute its right to free speech with a right not to be offended.

Yes: a bill of rights need not just be a wish list of the left. Let’s haggle.

Many conservatives object that a bill of rights would give unelected and unaccountable judges the ability to dictate public policy. Fair point. But that ship sailed a long time ago.

A century of High Court cases has taken our constitution in directions that would shock the founders. We no longer have any meaningful division of power between state and federal governments. The court has “discovered” rights in the constitution that are “implied” but not written down. Any conservative who believes we can restore a strict interpretation of the constitution is bizarrely optimistic.

So instituting a bill of rights wouldn’t be handing power to judges. They already have it. A bill of rights could take it back – allowing the Australian public to have a say on the fundamental rights with which Parliament may not tamper.

Immigration Election: We’ve Been Here Before

Prime Minister Julia Gillard will “put Aussie workers first”. Opposition spokesman for immigration Scott Morrison has called for “behaviour protocols” for asylum seekers in the community.

The 2013 election doesn’t just resemble the election of 2010. No, it looks like it will be an exact replica.

Both major parties made immigration central to their campaigns in 2010. Julia Gillard explicitly told the electorate that she did not believe in a “big Australia”. The Coalition went further.

The “stop the boats” chant has always been in part a proxy for more general concerns about population and infrastructure. The Opposition proposed to rename the Productivity Commission to the Productivity and Sustainability Commission, with a specific brief “to address population sustainability issues”.

(It’s hard to say what has become of this ludicrous proposal. The renaming appears in the Coalition policy notes leaked to Crikey mid last year, but not in the official, less detailed policy document in January this year. Perhaps we can expect it to be relaunched.)

So here we are back in Western Sydney talking about immigration. It’s as if no time has lapsed between the last election and today. We’re watching another game of rhetorical one-upmanship about foreigners.

Labor’s target is the 457 visa scheme. This class of visa allows businesses to bring in skilled workers temporarily where no local workers can be found. Launching her Rooty Hill week on Sunday night, the Prime Minister said she would stop “foreign workers being put at the front of the queue with Australian workers at the back”.

What nonsense. The Treasurer – who appeared with Gillard at Rooty Hill – is fond of reminding us that Australia is at nearly full employment.

Anyway, the idea that it is easier for a company to import workers on a 457 visa than hire readily available local ones is absurd. The 457 program is a complex regulatory process.

You can only hire a 457 worker for certain occupations. You have to satisfy the Immigration Department that you have spent a certain percentage of your payroll on approved training programs for Australian citizens. You have to demonstrate a strong commitment to hiring locals.

And, most importantly, if you hire someone on a 457 visa you have to offer them “no less than favourable” wages and conditions of employment as an Australian could expect. The program is specifically designed to stop businesses undercutting local wages with migrants.

With such complexity, 457 visas tend to be used only for higher-end jobs. Sixty-five per cent of all people who received a 457 visa in the last six months are either managers or professionals -the data is available here.

Their average 457 salary is $90,000 a year. In Western Australia, the 457 average is $104,000. (The average salary in Australia is around $72,000.)

On New Matilda yesterday, CFMEU boss Dave Noonan said his union is worried about workers being exploited on 457 visas. Employers sometimes try to skirt their legal obligations. This is a fair concern. Laws should be obeyed. Contracts should be honoured.

But that’s not the message Gillard was selling in Western Sydney. No, she was trying to stoke resentment. How else to describe a claim that foreigners have it better – are given better places in the queue – than locals?

The Coalition’s target is asylum seekers. They’re selling pretty much the same message. Scott Morrison’s claim that asylum seekers need “behaviour protocols… with clear negative sanctions for breaches” in light of an alleged sexual assault by a Sri Lankan asylum seeker. This is low and opportunistic.

Obviously, the only behaviour protocol in a liberal democracy is the law. Sexual assault is against the law. The clear negative sanction for breaching Australian laws against sexual assault is prosecution.

For the Coalition, Morrison’s comments are counterproductive in two ways. First, they undermine the argument that stopping the boats is solely about protecting the lives of refugees. Those who legitimately hold that view should be very annoyed by the Morrison proposals.

Second, they illustrate the Opposition doesn’t understand why it is in a winning lead. Julia Gillard’s Government is not terminal because it is too nice to asylum seekers. It’s terminal because of the fallout from the leadership spill, and the confusion and compromise which have crippled both policy and message. Gillard has a crisis of legitimacy she can’t shake. If a new Coalition government confuses what they campaigned on with why they won, Tony Abbott won’t last long in the Lodge.

On the Drum in February I argued the Government’s protectionist manufacturing policy isalmost entirely symbolic. The 2010 election was fought on these sorts of symbolic grounds. Julia Gillard may have declared her antipathy to big Australia but did nothing about it. Hers was a message for punters. It wasn’t instructions for legislators.

Both Gillard and Morrison’s comments are symbolic too. The only policy foundation behind Gillard’s claim that she plans to push Aussie workers to the front of the queue is a few tepid compliance adjustments to the 457 visa program. The Immigration Department thinks the scheme is working pretty well. The Rudd and Gillard governments have broken immigration records.

And the asylum seeker debate has been so fudged that it isn’t clear how much harder a Coalition could crack down on refugees. It certainly isn’t clear what policy goal that crackdown would achieve. What would be the purpose of imposing behaviour protocols, except as a political marketing tool?

You can almost forgive the 2010 election for its eccentricities – a new prime minister went to a quick election and everyone had to improvise. But the parties have had nearly three years to offer something more substantial than anti-immigration resentment.

Censorship Standards Come From A Personal Place

The United States Supreme Court Justice Potter Stewart gave this famously ambiguous definition for what constitutes pornography: “I know it when I see it.”

The director of the Classification Board, Lesley O’Brien, feels she has seen pornography in I Want Your Love, an American film that was due to be screened at the Melbourne Queer Film Festival next month.

The primary job of the Australian Classification Board is to give films their ranking of G, M, MA 15+, and R 18+, which allow them to be sold and exhibited.

Films shown at film festivals are exempt from the usual classification processes. But if the board’s director believes that a festival film might be rated X 18+ (pornographic, and therefore only available in Canberra or the Northern Territory) or RC (refused classification: available nowhere) the exemption is not granted. You can read the particulars here.

To give a film either of these classifications is censorship in every relevant way.

Yes, in 21st century Australia our government still censors “obscene” culture – we still employ a descendant of the system that banned James Joyce’s Ulysses and D.H. Lawrence’s Lady Chatterley’s Lover. We still have bureaucrats who decide what we can and cannot watch.

It has been decided we cannot watch I Want Your Love. The film features a “six-minute montage of friends, housemates and partygoers” having their intimate way with each other. Presumably it’s a pretty graphic six minutes, worthy of the X 18+ stamp.

But so what? It’s hard to see what public purpose banning a film that was to be shown only at a gay film festival achieves. You’d expect the audience at the Melbourne Queer Film Festival to have fairly specific tastes.

The film’s supporters say the six-minute scene is a critical part of the film’s narrative. The classification board says it serves no narrative purpose. The broader question of why we want a government bureaucracy doing contextual analysis of story structure is unclear.

Is it facetious to ask what approach to narrative theory the board uses? Vladimir Propp’s? Tzvetan Todorov’s? Claude Levi-Strauss’s? Joseph Campbell’s? Christopher Vogler’s?

Now, I’m not going to pretend to have a deep understanding of narrative theory – I got that list of names here. But if narrative relevancy is being used to justify censorship then it would be nice to know more about the board’s thinking.

Either way, by bureaucratic decree, I Want Your Love is now banned in Australia.

The banning comes at a critical moment in Australian classification history.

Last February the Australian Law Reform Commission released a major report into classification. The ALRC had a brief to bring classification up to date with the wealth of media choice that has been unleashed by the internet. What does it mean to classify a film when in the age of YouTube? What is the point of banning a sex scene in a film when there are many lifetimes’ worth of pornography freely available online?

Indeed, the ALRC had a hopeless, even pointless task. No mandatory, centralised, bureaucratic classification system could ever hope to monitor all content available to Australians in 2013. Seventy-two hours of video are uploaded to YouTube every minute. An honest reform of classification in our era would begin by rethinking its purpose, and, perhaps, throwing it all away.

Instead, the ALRC did what every inquiry before now has done. In the report’s view, the Government should try to classify “any content with an appropriate Australian link”. This seems more like a cry for help than a policy principle – how on earth could it be achieved in practice? Although to be fair it’s a better attempt than what was recommended by a 2011 parliamentary report, as I wrote on the Drum at the time.

The only real outcome of ALRC process has been the introduction of an R18+ rating for videogames. For historical reasons – pretty much just hostility of policymakers towards gaming – video games have lacked this higher classification. The new rating came into effect in most states in January.

And yet an R18+ for video games is cosmetic at best. Australian gamers have been flouting the restrictions imposed by our archaic classification system for decades. Gamers tend to be a technologically literate bunch. They’ve been importing and downloading whatever they’d like. And video games can still be refused classification – that is, banned.

The video game classification issue became an iconic battle within the gaming community. It was the quintessential “politicians just don’t get technology” story.

Unfortunately, for all their passionate defences of free speech, too many of those gamers and game-focused technology journalists have vacated the field after their minor win. The Government’s sort-of abandonment of its internet filter hasn’t helped either.

But our classification board is still acting as a censorship board. It is still a sop to the self-appointed moral arbiters. Just because some video games have had a small reprieve doesn’t mean the broader problem has been resolved.

In his 1704 essay On Obscenities, the French philosopher Pierre Bayle argued against the arbitrary nature of deciding what offends society – that is, trying to define what we would call “community standards”.

For all the verbiage poured out about community standards, censors rarely make any attempt to determine what the community’s real standards are. If they did they would be confronted with a problem. Those who, in Bayle’s words, “compose wanton verses” are surely part of that community, and contribute to its standards. Those who would eagerly read wanton verses are part of the community too.

So how can any model of community standards exclude the opinions of the people who might go to the Melbourne Queer Film Festival?

Ultimately, any censorship that tries to test a cultural work by (in the words of the Classification Act) “the standards of morality, decency and propriety generally accepted by reasonable adults” will be built on sand – an unstable pile of assumptions and prejudices of the officials who make the final decision.

In other words, they’ll know pornography when they see it. And that’s all it takes for censorship to kick in.

An Assault On Diet

When the National Health and Medical Research Council released its official new dietary guidelines this week, they helpfully included a sample daily meal plan.

This was a mistake. The meal plan inadvertently demonstrates how ridiculously austere the NHMRC’s ideal diet is. It’s almost comic. We’re being recommended the culinary equivalent of sexual abstinence.

For an average man, the hypothetical day begins with toast (wholemeal, two slices), baked beans (half a can), a tomato (medium size), and a glass of milk (250ml, reduced fat).

Breakfast is as good as it gets. Lunch is a sandwich (wholemeal) with 65 grams of sliced roast beef, 20 grams of reduced fat cheese and some salad. Two small coffees may be consumed at your discretion. For dinner, look forward to a tiny piece of fish – 100 grams maximum – rice, and a small, boiled potato. End your day with a glass of water. (Dinner for women: a cup of pasta, 65 grams of beef mince, kidney beans and half an onion.)

Pity those who try to follow the government’s new diet. This is self-denial pretending to be cuisine.

According to the NHMRC you mustn’t even use salt – that mineral essential to the human practice of cooking. It’s no exaggeration to say the desire for salt has shaped civilisation. To eliminate salt is to reject thousands of years of food wisdom.

Official dietary guidelines have been steadily reducing any pleasure we might draw from food. The government-endorsed diet is getting worse; more ascetic, more brutal, more surreal. It’s entirely divorced from human taste.

The CSIRO’s bestselling 2005 Total Wellbeing Diet was positively decadent compared to the NHMRC’s new rules. Male dieters were permitted between 2½ and four times as much meat for their dinner. Salt was allowed, in moderation. And the entire point of the CSIRO’s recommended diet was to help people lose weight. The spartan new guidelines are for people who already have a healthy weight.

Dietary guidelines are highly political. There are many special interests with a special interest in what we eat. Industries that find their products downgraded protest loudly.

Meat and livestock producers don’t like the idea we should eat less meat. In the United States, dietary recommendations have been forever shaped by lobbyists. The subsidised sugar industry has political clout.

But there’s a deeper ideological battle going on around nutrition.

After all, what is the point of providing ”guidelines” that are so far removed from the experiences of Australian eaters? Surely health tips should not simply be scientifically accurate, but also socially plausible.

Advice is pointless if it’s going to be ignored. If our best medical minds have decided that drawing any pleasure from food is too risky, perhaps they should rethink their goals.

In 2008, the NHMRC decided any more than two glasses of wine in a single session constituted ”binge drinking”. This decision turned the previously benign cultural practice of sharing a bottle of wine into dangerous hedonism.

But ”binge” is a moral concept rather than a scientific one – it’s just a synonym for ”bad”. Since risky behaviour exists on a continuum, this redefinition was little more than an attempt to berate people into changing their behaviour.

That was five years ago. Now public health activists are pushing the message ”there is no safe level of alcohol consumption”. Another banality pretending to be insight. There’s no totally safe level of doing anything. But expect to find ”no alcohol” on official recommendations soon.

Food and drink are deeply intertwined with cultural identity. No wonder our palate is a political plaything. Environmentalists are frustrated the NHMRC didn’t focus on sustainability. Social-justice types want more attention on equity and fairness.

In Bold Palates: Australia’s Gastronomic Heritage, the historian Barbara Santich relates the story of a Sydney doctor who in 1893 proposed a national dish in the lead-up to Federation: perhaps a ”vegetable curry”, he thought, ”or some well-concocted salad”. Such a delicate, health-focused dish was never likely to be embraced in a land of mutton, damper, and kangaroo-tail soup.

In 2013 we still don’t have a consensus national dish (why would we want one?) but the success of MasterChef and My Kitchen Rules suggests a cultural change in food and dining. Australia is the perfect combination: a rich, immigrant, and agricultural nation. Our cuisine is starting to reflect that holy trinity.

The government’s health guidelines are directly opposed to this new culinary culture. They would strip away the pleasure and meaning of food.

Indeed, there’s something symbolic in the way the NHMRC has offered different menus for men and women. Sharing a meal with the opposite sex is getting in the way of kilojoule management.

Our new health guidelines are more utopian than honest. They may be theoretically ideal – nutritionists can argue the details – but they’re also unrealistic, implausible, and unappealing.

Maybe culinary abstinence is the healthy choice. But replacing the joys of cooking and eating with a tightly engineered formula of self-denial is unlikely to be the happy choice.

Protectionism, Symbolism And Gillard’s Jobs Plan

Timing is everything. On Sunday, Prime Minister Julia Gillard announced her “plan for Australian jobs” at the Boeing factory in Melbourne: $1 billion “to make sure that we are a manufacturing nation”.

The next day, the nation’s largest manufacturing union assembled for its national conference on the Gold Coast. Australian Workers’ Union (AWU) chief Paul Howes announced he backed her leadership “110 per cent”.

This is as good a way to measure public policy success as any.

Gillard’s jobs plan (formally titled the Industry and Innovation Statement) is an obvious sop to the protectionist wing of the union movement.

You can read the plan yourself here. But it’s actually pretty uninspiring; a grab-bag of miscellaneous policies trying to form a cohesive whole.

Some of the policies are new. The 10 “Industry Innovation Precincts” are an attempt to cluster industries à la Silicon Valley. We’re throwing $238 million at this little idea.

Industry Innovation Precincts are no more likely to be successful than a similar Howard and Kennett joint venture: the Commonwealth Technology Port, sited in the Melbourne Docklands.
ComTechPort failed to attract digital entrepreneurs and was instead colonised by government departments. Now it’s been rebranded as an “inner urban community”. Let’s see what the Gillard precincts look like in a decade’s time.

Others policies in the jobs plan have already been announced. Legislation for the Anti-Dumping Authority is already squirrelling through parliament.

All up, the jobs plan is not really a new “$1 billion” package. It’s a $791 million one.

But the plan’s big ticket items are the worst of both worlds: they’re both administratively complex and completely unable to achieve their purported goals.

In other words, Julia Gillard’s jobs plan is protectionism as symbolism. It’s a “victory” that the old industrial unions can bring back to their members.

All large projects with a capital expenditure cost above $500 million will be required to submit Australian Industry Participation plans that detail how they intend to involve local firms in their project. Australian Industry Participation plans started back in the early 2000s but only applied to government-funded projects. The Gillard Government is extending them to independent private projects.

In practice, Australian Industry Participation plans end up being pointless red tape. Only the most reckless project manager would deliberately exclude cheaper local suppliers. The plans are mainly there to make local firms feel like they’re in with a chance.

Really large projects ($2 billion and above) that are receiving concessions to import goods tariff-free will have to “embed Australian Industry Opportunity officers within their procurement teams”. It’s not clear exactly what that means. It sounds like embedded public servants.

Now, embedding public servants in private enterprise sounds a bit creepy.

But plus a few increases to existing programs (the Government’s venture capital fund gets an extra $350 million) that’s all there is to the Government’s “jobs plan”. It’s a couple of tokenistic, bureaucratic measures presented as a great win for Aussie jobs and Labor values and the Asian Century.

The fact that union bosses have taken this thin gruel back to their members with such enthusiasm is revealing. They are as much in on the game as the politicians.

No doubt there are many in the AWU’s rank-and-file who want the Government to protect manufacturing and blue-collar jobs by major government intervention – protectionism and planning and government investment. If so, then they’ve been completely sold down the river by their union representatives.

Gillard’s Labor Party faces the same dilemma as many other labour parties around the world. The ALP has become entirely technocratic, as Tim Soutphommasane lamented in the Age recently. Managerialism has replaced ideology. Quite rightly, they’ve learned that open markets and free trade deliver higher living standards for the whole country. But this is hard on their old base. The winds of international competition have been tough on manufacturing unions.

So the protectionism we do get is tokenistic – little regulatory rules and futile programs. Nobody seriously believes these policies will have a substantial effect on the viability of manufacturing in Australia. If the Government really believed that the secret to national economic success was clustering firms geographically or forcing big projects to buy local, these policies would be 10 times as large.

In the case of anti-dumping law (which prohibits foreign manufacturers from selling products in Australia below their “normal” price) the Productivity Commission has explicitly said it exists for psychological reasons rather than economic ones.

We can see the same dynamic in the United States. The political scientist Dan Drezner noted the mercantilist theme running through Barack Obama’s recent State of the Union speech. Obama needs to signal to blue-collar manufacturing workers that he wants to protect them but at the same time the administration can’t abandon the free trade necessary for its long-term economic growth.

There was a great worry at the start of the global financial crisis that the world might take a turn towards protectionism. Politicians often respond to economic downturns by attacking trade.

But rather than demonstrating a lack of faith in free trade, symbolic protectionism does the opposite. Protectionism and state economic planning hasn’t just lost the intellectual debate. It’s completely lost the political one as well.