Submission to the Acting Independent National Security Legislation Monitor Inquiry into section 35P of the ASIO Act

With Simon Breheny

Introduction: This submission has been drafted in response to an invitation to the Institute of Public Affairs to make a submission to the Acting Independent National Security Legislation Monitor’s Inquiry into section 35P of the ASIO Act.

Our submission recommends the repeal of section 35P. We contend that there are three key problems with section 35P:

  • Individuals can engage in illegal conduct without being aware they are breaking the law
  • Restrictions on disclosure about special intelligence operations last forever
  • Any exemption will provide only limited protection for journalists but journalism is an ambiguous term, and the exemption will not protect freedom of speech

Available in PDF here.

A Submission to the Senate Inquiry into Corporate Tax Avoidance

With Sinclair Davidson

Introduction: In October 2014 the Australian Senate agreed to an inquiry into corporate tax avoidance. This comes after a wave of media comment about apparent tax “minimisation” strategies practiced by large multinational firms, particularly firms operating in the technology space.

The debate over company tax avoidance at home and abroad is a highly politically charged one, but the evidence suggests it offers far more heat than light.

The debate has exposed that the mechanics of Australia’s company tax is poorly understood. Even basic aspects of the company tax – such as the distinction between accounting profit and taxable profit – have been misinterpreted and those misinterpretations repeated.

Such misunderstandings and confusions multiply when the debate turns to the interrelation between company tax in different countries and the international corporate tax regime. Further complications are the growing significance of intellectual property and “border-less” commerce in the digital age. This makes the existence of confusion about the company tax burden understandable. But that confusion is no basis on which to alter the structure of the tax system, nor impose new regulatory controls or privacy-limiting information sharing policies, which could undermine the value of Australia as a business friendly economy.

Furthermore, the overarching public policy goal for Parliament must be the ultimate health of the economy, and the prosperity of the Australian people. We value multinational activity in Australia not because they provide revenue for the government budget, but because they create economic activity: provide jobs, services, and enhance our wellbeing.

Parliament must avoid introducing policy settings which purport to protect the stability of public revenue but at the same time cool the investment climate and push multinational economic activity outside of Australia.

The debate over corporate tax avoidance resembles another controversial and complex tax debate in recent years – that surrounding the mining tax. As we argued in The Australian in in January 2015:

The government should tread carefully. This obsession with multinationals and corporate tax looks like the Rudd government’s mining tax debacle. In 2010, Wayne Swan said foreign-owned mining companies were paying only 13 per cent tax in Australia. Tax office data told a different story but the government ploughed ahead. As we learned, populism made for poor policy …

There’s another reason for [the government] to be careful. When all the dust had settled from Swan’s tax crusade, the mining tax raised almost no money anyway.

Available in PDF here.

Submission to Parliamentary Joint Committee on Intelligence and Security Inquiry into the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014

Introduction: Recent terrorist attacks have emphasised the need for counter-terrorism and law enforcement policy to be flexible, robust, and up-to-date. The rise of Islamic State is a significant threat, materially changing the foreign fighter problem. Many of the government’s recent anti-terror law changes have been welcome and necessary. As I argued in December 2014, the “knee-jerk reaction against any and all national security changes is not merely wrong, it’s dangerous. There is no more basic responsibility of government than security.”

However, The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (“data retention bill”) will mandate the creation of large databases of information about the activities of all Australian internet users, not just those suspected of criminal activity.

The information contained in these databases will be sufficient to reconstruct extremely deep profiles of the activities of internet users. The information within the databases will be potentially available in any court proceeding, including, for instance, as the result of a subpoena in civil litigation. The government has made a decision not to limit access to this information to national security purposes. The creation of these databases manifests substantial new privacy risks to Australians, both from lawful and unlawful access.

The government has not demonstrated that the risks and consequences of mandatory data retention outweigh the benefits to law enforcement, nor has it demonstrated that the existing legal framework – which was substantially revised in 2012 – is insufficient to tackle the security challenges which the government has identified.

Available in PDF here.

The sharing economy: How over-regulation could destroy an economic revolution

With Darcy Allen

Executive Summary: The sharing economy describes a rise of new business models (‘platforms’) that uproot traditional markets, break down industry categories, and maximise the use of scarce resources. The best known services are the ridesharing system Uber and the accommodation service Airbnb. However, the sharing economy extends much further into finance, home tools, investment, and everyday tasks.

The ‘sharing economy’ emerged from dramatically falling transaction costs that had prevented certain markets from developing. The sharing economy coordinates exchanges between individuals in much the same way as a traditional market, but does so in a flexible, self-governing, and potentially revolutionary way.

These burgeoning benefits are profound: more sustainable use of idle and underutilised resources; flexible employment options for contractors; bottom-up self-regulating mechanisms; lower overheads leading to lower prices for consumers; and more closely tailored and customised products for users.

These sharing economy platforms are only in their embryonic stage of development. The benefits to the Australian economy as the market becomes more efficient are likely to expand. This expansion will only occur if Australia’s entrepreneurs are left to experiment and innovate.

The real threat to the sharing economy is government regulation driven by the incumbent industries that are challenged. The danger of excessive legislation and regulation will absorb the gains yielded by technology improvements, preventing mutually beneficial trade and stifling economic growth.

This paper recommends new approaches to regulatory design that would encourage the growth of the sharing economy:

  • regulators should encourage bottom-up, organic, self-regulating institutions prior to introducing top-down government control;
  • occupational licensing needs to be reduced to allow private certification schemes and reputation mechanisms to evolve;
  • industry specific regulatory frameworks need to be avoided;
  • regulations making it harder for start-ups to compete for labour need to be reduced; and
  • the status of individual contractors needs to remain separate from highly restrictive employment law

Available in PDF here.

Submission to Australian government Online Copyright Infringement Discussion Paper

The law governing copyright infringement in Australia is characterised by uncertainty and complexity. Technological change has exacerbated these problems, enabling large scale copyright infringement, which in turn has exposed a lack of social agreement on the desirability of copyright protection.

This submission argues that the Commonwealth government’s proposed reforms to copyright law do nothing to tackle the underlying dynamics that have led to these developments. Instead, they seek to tip the balance in favour of copyright holders. The proposed reforms:

  • Will do little to prevent copyright infringement;
  • Have an unacceptable impact on freedom of speech;
  • Increase, rather than decrease, the underlying uncertainties of copyright law in Australia, particularly while Australia lacks a ‘fair use’ exception;
  • Give the government the power to create new copyright frameworks by regulation; and
  • Constitute an attempt to shift the costs of copyright protection from copyright holders to internet service providers.
  • Furthermore, while the proposal to extend the safe harbour provisions in the Copyright Act is welcome, it helps illustrate the underlying uncertainties of Australia’s copyright regime.

This submission first outlines the principles by which copyright law reform must be judged.

Copyright is not an unlimited right – it is granted by the government in order to provide incentives for the production of creative work. As such, copyright law has to strike a balance between the interests of monopoly rights-holders and other users of creative works. The political bargain sustaining copyright is inherently unstable, and the instability is further exacerbated by unpredictable technological change.

In Australia, the imbalance of copyright is represented most obviously by the lack of a fair use exception for copyright infringement. This creates a great deal of uncertainty in its own right, but in the context of the government’s proposed reforms, weighing the copyright balance further in favour of copyright holders without introducing a fair use exception will substantially increase that uncertainty.

The submission concludes by outlining specific problems with the government’s proposals.

Available in PDF here.

A social problem, not a technological problem: Bullying, cyberbullying and public policy

With Simon Breheny

Introduction: Bullying among children is a significant and serious issue. In recent years, thephenomenon described as “cyberbullying” has received a large amount of social, political, and academic attention.

The Commonwealth government has announced that it is seeking legislative change to deal with cyberbullying. The government plans to institute a Children’s e-Safety Commissioner with power to takedown harmful content directed at children from the social media sites.

The Children’s e-Safety Commissioner is a serious threat to freedom of speech.

The purpose of this paper is to outline the scope of the cyberbullying problem, the conceptual framework within it must be understood, and develop principles by which policymakers can address the cyberbullying problem. Without understanding the cyberbullying phenomenon it is impossible to devise effective policy that will not have unintended consequences and threaten basic liberties like freedom of speech. Unfortunately it is not clear that the government has clearly understood the causes, consequences, and characteristics of cyberbullying.

This paper argues that cyberbullying is a subset of bullying. It is bullying by electronic means. It is not a problem of a different kind from bullying in an offline environment. Cyberbullying is a social problem, not a technological one.

Available in PDF here.

Submission to the Department of Communications Discussion Paper ‘Enhancing Online Safety for Children’

With Simon Breheny

Executive summary: The government’s proposed Children’s e-Safety Commissioner represents a serious threat to freedom of speech and digital liberty. The proposed regime would create extraordinary new powers, which would be conferred on a government-appointed digital censor. The power to order certain material to be pulled down from large social media sites also gives discretionary power to a government bureaucrat.

The proposal misdiagnoses the problem of bullying on and offline. Bullying can be a significant and very harmful social problem – whether on or offline. Cyberbullying is not a special case demanding of specific laws. It should be dealt with using the same legal framework as bullying that takes place offline.

The existence of a Children’s e-Safety Commissioner will not prevent or protect young people against cyberbullying. There are many forms of harmful online activity that will not be caught by the government’s proposed regime. The regime may also drive cyberbullying to sites that are less easily monitored by parents and guardians. Smaller social media sites are less likely to have rigorously enforced community standards yet the government’s proposal is aimed only at large social media sites.

The proposal also ignores existing remedies. There are a variety of current laws that exist to catch the same conduct that the government seeks to proscribe. Legal remedies for stalking, harassment, intimidation and a range of other unacceptable behaviours are already available to victims of bullying.

The Children’s e-Safety Commissioner may provide a false sense of security among parents that cyberbullying has been dealt with. Some parents may not feel that their own efforts are still necessary when faced with the existence of the government’s cyberbullying program. Parents may fail to employ monitoring and security software believing it to be redundant. However, there will be cases of cyberbullying that are not caught by the government’s scheme but that would have been caught by parental vigilance.

Available in PDF here.

Coastal Shipping Reform: Industry Saviour or Regulatory Nightmare?

With Aaron Lane

Executive Summary: On July 1 2012, the Gillard Government passed the most extensive suite of changes to coastal trading since the Navigation Act 1912 in the form of the Coastal Trading (Revitalising Australian Shipping) Act 2012 and its associated Acts.

They come on top of the Fair Work Act 2009, which imposed Australian labour standards on foreignregistered ships operating with foreign crews in the Australian coastal shipping trade.

The combination of these changes have negative effects for the Australian economy and for Australian businesses and consumers.

  • These changes are intended to reduce the number of foreign vessels currently carrying coastal freight, and to make Australian ships more competitive. They do so by significantly increasing the regulatory burden on foreign-flagged ships.
  • Foreign-registered ships temporarily operating on the coastal trade must undertake at least five voyages in twelve months, and the loading dates, origin and destination, cargo types and volumes are specified at the start of that period.
  • Foreign-registered ships can only carry cargo if there are no Australian-flagged ships (or foreign-flagged ships transitioning to Australian flags) that can do so.
  • Foreign-flagged ships carrying foreign crews have to pay Australian award wages, which are far in excess of International Transport Workers’ Federation rates.

These changes are aimed at encouraging the use of vessels that employ solely Australian resident crews. In doing so, the changes have the effect of significantly reducing the flexibility in the coastal shipping trade, and squeezing foreign-flagged ships out of the market. As a result of the 2012 changes alone, the net present value of the coastal shipping industry’s net economic benefit to the Australian economy is between $76 million and $150 million less than it would be in the absence of these changes.

It is clear that the changes will increase transport costs. This could result in bulk commodities being sourced from cheaper overseas markets, thus negatively affecting Australian commodity producers.

Increased transport costs could also be passed downstream to consumers. This paper examines the broader economic effects that seem likely to arise as a result of these changes.

Finally, this paper asks what ought to be done about coastal shipping. It concludes that a marketdriven, open regulatory framework should instead govern Australian shipping, and it calls on the Abbott Government to implement changes as a matter of priority.

Available in PDF here.

The Biggest Vested Interest of All: How Government Lobbies to Restrict Individual Rights and Freedom

Introduction: The Federal Treasurer Wayne Swan wrote in The Monthly in March 2012 that:

Australia’s fair go is today under threat from a new source. To be blunt, the rising power of vested interests is undermining our equality and threatening our democracy.

But not all vested interests are private corporations. This paper draws attention to two statutory agencies of the Commonwealth Government that have an explicit, legislatively-defined functions to lobby and advocate for public policy change – the Australian National Preventive Health Agency and the Australian Human Rights Commission.

Available in PDF here.

Submission to Senate Legal and Constitutional Affairs Legislation Committee Exposure Draft of Human Rights and Anti-Discrimination Bill 2012

With Simon Breheny

Executive Summary: The exposure draft of the Human Rights and Anti-Discrimination Bill 2012 represents a dramatic and radical attack on Australians’ fundamental freedoms under the guise of reforming antidiscrimination law.

The draft Bill makes government the arbiter of behaviour within a substantial range of private political and personal activities. The draft Bill would politicise and regulate private interpersonal relationships in a way they never have been in Australia.

In a very real sense, these laws are not anti-discrimination laws. They are laws designed to give the government authority over our lives in completely new and unjustifiable arenas. This is an excessive and indefensible increase in state power.

The proposed laws give the government explicit power to interfere in almost all facets of human interaction including eighteen areas of public and private life, such as political opinion, religion and social origin. The government is also required to decide what falls into these categories, making the state the total and final arbiter on our most fundamental liberties.

By redefining discrimination to be anything which “offends, insults or humiliates” the proposed law will extend the infamous provisions of the Racial Discrimination Act that led to the Andrew Bolt case to almost every area of public and private life. By expanding the grounds on which people can claim to be discriminated against to include areas such as “political opinion” the law will stifle genuine discussion on almost every topic for fear of legal consequences.

This draft Bill has deservedly been criticised from across the political spectrum as a massive overreach and an unjustified curtailment of individual freedoms.

Democratic governments rely on the free exchange of opinion for their legitimacy. This draft Bill, if enacted, would dramatically limit freedom of speech in Australia.

This submission also raises other concerning elements of the draft Bill. The draft Bill substantially reverses the burden of proof onto the defendant. It introduces a large amount of uncertainty and ambiguity into anti-discrimination law.

The draft Bill introduces a subjective test for decisions about whether the law has been breached. Subjective tests are impossible to comply with and should never be used by the courts.

There is no justification for such a dramatic overhaul of anti-discrimination law, and no place for such extraordinary limits on freedom of speech.

Available in PDF here.