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.

Policy without Parliament: the growth of regulation in Australia

Introduction: Regulation is a political activity. It sets the framework for the market economy by defining the boundaries between private action and government action. It is, since the failure of overtly socialist models of political economy, the primary method by which the government relates to individuals and communities.

Regulations, and the regulatory agencies which administer them, cast an increasingly large shadow over the freedom to interact, both economically and socially, in Australia.

The first part of this IPA Backgrounder looks at the rapid growth in regulation-making, and the recent institutional changes in Australia’s regulatory agencies. It charts the consolidation and expansion of the three major economic regulators — the Australian Competition and Consumer Commission (ACCC), the Australian Prudential Regulatory Authority (APRA) and the Australian Securities and Investment Commission (ASIC)—and examines the theoretical justifications for constructing such ‘mega-regulators’.

The second part attempts to explain how these mega-regulators are themselves able to encourage their own growth. It looks at the internal pressures towards regulatory and institutional expansion, as well as the political pressures which the agencies themselves are able to exert upon directly elected politicians.

Available here.

Thumping the Table: Key Questions for the Labor Party’s ‘Industry Policy’

With Sinclair Davidson

Introduction: Is industry, in particular manufacturing, characterised by market failure that demands government intervention? The recently appointed Shadow Minister for Industry, Innovation Science and Research, Kim Carr has argued it is:

Industry policy is about addressing market failure … Clearly the reliance on market fundamentalism is not working. In the last five years we’ve seen the loss of nearly 40,000 jobs in manufacturing.

The Leader of the Opposition has similarly argued that Australia risks being relegated to the positions of ‘China’s quarry’ and ‘Japan’s beach’. In other words, the majority of Australia’s prosperity may become dependent on as few as two industries, tourism and mining, with a single buyer for each. Such a situation, it is implied, will provide a poor base for Australia’s future economic prosperity. Australia therefore requires a ‘sustainable economy’ buttressed by a diverse range of industries (a ‘broad economic base.’)

The Shadow Minister has also targeted low-end service industries as an example of what ALP industry policy will avoid, arguing that Australian employment cannot be restricted to ‘burger flippers’ and ‘cappuccino makers’. This constitutes an extraordinary slight on those workers, and indeed on all low-skilled workers. This type of job-snobbery is entirely inappropriate for an elected representative. Such a view also ignores the fact that these jobs are typically entry-level positions, as employees go on to higher level, higher skilled and higher paid positions either internally or externally.

Reflecting on the claim that Australia’s extractive industries provide an unsustainable base for economic prosperity, the Opposition Leader and Shadow Minister for Industry have signalled their intention to rejuvenate Australia’s ability to ‘make things’. This call for ‘reindustrialisation’ is a return to leftist ideas of the 1980s.

The term ‘industry policy’ refers to any active assistance given to economic production by government. These forms of assistance can range from the relatively benign — for instance, the legal protection of intellectual property — to the strongly interventionist — for instance, the imposition of protectionist tariffs, subsidies, or direct government control.

Australia has a long and disgraceful history of protectionism; high tariffs, the ‘White Australia Policy’ and highly regulated labour markets were some of the tools employed as part of previous industry policies. The state socialism, which characterised Australia’s political economy for much of its history, drained the nation of much of its natural wealth.

Instead of these ‘old-fashioned’ measures of an industrial policy, the Federal Labor Party proposes a new brand of industry policy. The Shadow Treasurer Wayne Swan says ‘Industry policy means to me getting the basics right — skills, education, innovation, infrastructure and tax’. Senator Carr has indicated a more expansive program, including measures such as utilising government procurement policy to provide a ‘base level of demand’ for Australian products.

Available here.

Submission to the Inquiry into the Broadcasting Services Amendment (Media Ownership) Bill 2006 and related bills

Introduction: Reform to the regulatory framework of the Australian media should be unambiguously directed towards liberalisation of the sector. It is important to place the relatively recent, and highly publicised changes in production, distribution and consumption of media made possible by communications technology in a context of long term and continuous radical media change. Technological and commercial innovation have provided Australians with a multitude of choice over the content we consume, the way we receive and display it, and our capacity to store it for future consumption. Not only this, but the cost of production has rapidly dropped for seemingly mature industries like print, which has allowed niche and specialist publications to flourish. Never before have Australians had access to so much information packaged in so many formats.

Available in PDF here.