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.

Submission to Parliamentary Joint Committee on Intelligence and Security on ‘Equipping Australia against Emerging and Evolving Threats’

With Simon Breheny

Introduction: The Institute of Public Affairs believes many of the national security proposals contained in the Attorney-General’s Department’s Equipping Australia against Emerging and Evolving Threats Discussion Paper are unnecessary and excessive. Many of the proposals:

  • Curb civil liberties;
  • Systematically breach Australians’ right to privacy, and;
  • Breach basic rule of law principles.

The Discussion Paper offers at least 45 distinct proposals. This submission does not attempt to address each one. Instead, we focus on one particular proposal that the government is seeking views upon: the data retention policy that would require internet service providers to retain data on all users for up to two years.

The data retention proposal, along with a number of other proposals listed in the Discussion Paper,would be a significant increase in the power of security agencies and the Attorney-General’s Department.

Available in PDF here.

The Finkelstein Report into Media and Media Regulation: Licensing, censorship and accountability

Introduction: The proposed News Media Council recommended by the Finkelstein Report into the Media and Media Regulation represents a significant threat to freedom of speech.

  • The Council would be a de facto licensing scheme for printed and online media. Licensing over the printed press ended in the English-speaking world in 1695.
  • The Council would enable state censorship of controversial content.
  • The Council represents a reversal of democratic accountability: rather than state being accountable to the opinions of citizens, it would make citizens’ opinions accountable to the state.
  • The Council would not only regulate the speech of newspapers and television broadcasters, but it would regulate the activities of virtually every citizen who expresses opinions online or in print. Nearly every website, magazine, journal, and newsletter published in Australia would come under the News Media Council’s jurisdiction.

The extraordinary breadth of the proposed News Media Council’s jurisdiction suggests that, despite the Finkelstein report’s 400 pages of philosophy, history, economics, and public opinion research, it has not been properly thought through.

Available in PDF here.

Submission to the Independent Media Inquiry

Introduction: The Independent Inquiry into Media and Media Regulation raises troubling freedom of speech and freedom of the press issues. A free and independent press is an absolute necessity for a functioning democracy, and freedom of speech is one of the basic foundations of individual liberty.

Available in PDF here.

The Impact and Cost of Health Sector Regulation

With Mikayla Novak and Tim Wilson

Executive Summary

  • The demands on Australia’s health care sector will increase considerably as the Australian population ages.
  • The regulatory burden on health care professionals is increasing and is coming at the expense of fulfilling their primary purpose of providing health care services.
  • Health care providers may be required to liaise with up to 100 health care regulators with nearly 80 commonwealth regulators and between 15 and 20 in each state.
  • There are now more than 22,600 pages of combined state and federal legislation across 305 different Acts of Parliament covering the health sector.
  • There are unnecessary disparities in regulation for health care providers between States which cause confusion and increase the barriers to establishing new health care facilities.
  • The cost of regulation is rising rapidly. For example, the estimated compliance burden on general practice for enhanced primary care has grown by nearly 900 per cent between 2002-02 and 2007-08.
  • General Practitioners are becoming the interface for approval for Australians to access other government services such as welfare and support services draining their time to provide health care.
  • Licensing arrangements for different health care facilities from state to state add confusion to the capacity for new and existing health care providers to operate across the country.
  • The pharmaceuticals industry is one of the most heavily regulated industries in Australia and faces annual costs of at least $89 million to receive regulatory approval for sale. Much of this cost is duplicating work to seek regulatory approval already commenced or resolved overseas.
  • The average time frame for regulatory approval for a new medicine can be as high as 160 days resulting in the slower introduction of life saving or extending medicines.
  • The most effective way to decrease private health insurance premiums is not government regulation, but competition in health insurance products.
    Australia’s health care needs significant regulatory reform to ensure it can deliver the services expected of it with an ageing population.

Available in PDF here.

Over-ruled: How excessive regulation and legislation is holding back Western Australia

With Christopher Murn

Executive Summary: The global financial crisis and economic downturn makes a review of Western Australia’s regulatory burden urgent. Over the past decade, the amount of new legislation has increased by an average of 158 pages per year. This increase is substantially faster in Western Australia than in any other state, even after controlling for economic growth and population. Western Australia has developed an international reputation as the most over-regulated Australian state. Over-regulation has significance financial, social and indirect costs to Western Australians. There are also substantial hidden costs.

Available in PDF here.

Submission to the Preventative Health Taskforce’s Discussion Paper “Australia: the healthiest country by 2020”

Executive Summary: The National Preventative Health Taskforce’s Discussion Paper: a) downplays the positive role individual choices can play in the health sphere, b) pays little attention to the rights of individuals to consume legal products of their choosing, and for commercial vendors to provide consumers with those legal products, c) fails to interrogate the extent to which the management of individual risk should be appropriated by the state, d) neglects to properly assess the evidence base of its policy prescriptions, and e) presents policies that fail to live up to the framework of evidence-based public policy.

Available in PDF here.