When Does Mission Creep Become Censorship?

The Australian Securities and Investments Commission is completely out of control.

The corporate regulator is an independent government agency. It is not directly accountable to a minister. It is only partially accountable to parliament.

And over the past nine months ASIC has been ordering internet service providers to censor websites it suspected of hosting fraudulent investment material.

To do this, ASIC has been utilising an obscure section of the Telecommunications Act usually used to prohibit extreme cases of child pornography.

The outrage only came to light because 1,200 other websites were accidentally censored as well.

Renai LeMay at the technology website Delimiter has the full story. In the Drum last week,the convenors of Melbourne Free University – one of those innocent websites taken down by ASIC’s actions – explained what happened when
they were blocked.

It’s an almost perfect illustration of regulatory mission creep.

Legislative provisions designed to only deal with the most extreme crimes are eventually used to pursue lesser offences. Given that this involved full-blown censorship – and censorship without oversight or appeal – ASIC’s actions are incredibly reckless.

Censoring the internet is a gross abuse of its status as an independent regulator.

Perhaps we could forgive an abuse of power if it was a one-time thing. But it’s part of a pattern.

In September and October last year the federal government was pushing hard for a data retention scheme to govern the internet. Such a law would have compelled internet service providers to retain the browsing habits of their customers for two years, on the off-chance law enforcement agencies wanted to have a look at them later.

The data retention proposal was both vague and authoritarian. Senior ministers claimed the policy was to protect us against the worst of the worst: terrorists, paedophiles, the most terrifying cyber-criminals.

When an IPA colleague and I appeared in front of the Parliamentary Joint Committee on Intelligence and Security to oppose data retention, we were informed by one Labor backbencher, Michael Danby, that “extreme civil liberties” placed Australia at risk of another terror attack.

But as the hearings progressed it was revealed that one of the biggest advocates within Canberra for data retention wasn’t the security agencies or the Federal Police, but ASIC.

And not only did ASIC want the internet metadata to be retained – information like date and timestamps – but the corporate regulator even wanted our content to be retained too. That is, it wanted internet providers to store every single word in our emails, and every website we’ve ever visited.

Such an extreme breach of our privacy was not to protect us against terrorists, but insider trading. (The details, such as they are, are on pages 26 and 27 here.)

It’s not like ASIC doesn’t have any draconian powers already.

Judges have repeatedly slapped ASIC down for its approach to regulatory enforcement. In one case ASIC was condemned for being oppressive, for abusing process, and bringing the administration of justice into disrepute.

In another, the judge admonished ASIC’s lawyers for alleging dishonesty without any basis in evidence.

Judges often question ASIC’s motives.

One of the key insights of the public choice school of economics is that bureaucracies often act in their own interest. They want a bigger share of the government budget, more public profile, and greater powers.

ASIC is hardly the only example of a rogue agency. Under Allan Fels, the Australian Competition and Consumer Commission was similarly unchecked.

At Catallaxy Files, Sinclair Davidson has pointed out that ultimately the federal parliament is responsible for ASIC’s actions. Politicians write the laws under which the regulator operates. Politicians grant them their powers. But by deliberately setting them outside the political process – by giving them statutory independence – they’ve made them unaccountable, and allowed them to get out of control.

So politicians have to reign ASIC in. But there’s a more fundamental problem. The sort of abuse of power we are seeing out of ASIC is endemic to the regulatory state.

The logic is as follows.

The relationship between a regulator and a regulated organisation (let’s say a company operating in a marketplace) is like a continuous game of cat and mouse. A regulator makes a rule. A company changes its behaviour to comply with the rule. But, assuming the rule imposes some sort of cost on the company, the company will look for loop-holes to minimise the cost.

The frustrated regulator will write another rule to close off the loop-hole. The cycle continues.

The economist Edward Kane calls this relationship the regulatory dialectic. ASIC is a perfect case study.

Caught up in its never-ending battle with the companies it regulates, it has been lobbying for powers which no free society ought to grant even to its national security services. It has been trying its hand at censorship. And it’s launched legal crusades to raise its profile and its political and financial support.

Lawyers and economists like to talk about the content of regulation. What does a regulation permit? What does it prohibit? Nobody wants to legalise fraud or theft.

But ASIC’s extraordinary abuses of power reveal how regulation plays out in the real world – not on the clean page of legislation, or the tight confines of an economists’ model, but when self-interested bureaucrats are asked to enforce uncertain laws against an unwilling private sector.

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.

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.

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.

Anti-Discrimination Laws: An Act Of Confusion

Even when discussing complex pieces of legislation, it’s worth trying to get basic concepts right.

The Gillard Government’s proposed anti-discrimination changes fail this test. They artlessly try to blend two concepts together – discrimination and harassment.

But to harass someone and to discriminate against someone are different things.

If a person misses out on a job in favour of a less-qualified person because of their skin colour, then that’s discrimination. Harassment is different. You harass someone when you intentionally disturb or upset another person.

They’re both bad, certainly. But they’re conceptually distinct, and have been that way since the first federal anti-discrimination law was passed in Australia in 1975.

The Government wants to “consolidate” a whole bunch of bills concerning discrimination – including the Racial Discrimination Act and the Sex Discrimination Act – into a grand Human Rights and Anti-Discrimination Bill.

Simplifying law is a usually good idea. Yet what comes out is an incoherent mess. And it’s hard for citizens to obey an incoherent mess.

For example, if the bill goes through the Parliament, it will be unlawful to treat someone unfavourably by offending or insulting them because of their political opinions, industrial history, or social origin in any work-related area.

The concepts of “offend or insult” come from existing harassment law. Unfavourable treatment is the mainstay of discrimination law. Fusing the two together may superficially seem like a good idea, but read the previous paragraph again. What wouldn’t be captured by this new omnibus bill?

All political opinions are offensive in some fashion – politics is about controversy. Almost everywhere is “work-related” for someone. Offence is in the eye of the receiver, not the giver. And what on earth is “social origin”?

These anti-discrimination changes have a long and sad history.

Way back in 2008, Kevin Rudd and his Attorney-General Robert McClelland announced a broad inquiry into Australian human rights protection.

They put Father Frank Brennan in charge of this National Human Rights Consultation. That year was the 60th anniversary of the United Nations Universal Declaration of Human Rights – a document which Labor’s HV Evatt helped draft. McClelland used the Evatt Foundation as his platform to kick it all off. There was a big song and dance about the whole thing. The committee received tens of thousands of submissions.

But the ambitions of 2008 disappeared. Kevin Rudd’s hyperactivity became nervousness and uncertainty. In 2010 the government rejected the committee’s major proposal – to implement a national charter of rights.

Rudd was dumped. McClelland was jettisoned from the Attorney-General position in 2011.

But one minor government response to the consultation was a promise to consolidate all existing anti-discrimination laws to reduce “uncertainty”. And once started bureaucratic process does not stop.

This is one reason the anti-discrimination bill has “human rights” in the title. It’s a grand phrase for something that is purportedly only designed to merge a few acts together. It’s good public relations as well. Who could oppose human rights?

Yet the consolidation of anti-discrimination law was barely mentioned in the final report of the Rudd-era consultation. And the report did not explain why it was necessary. Last year, a discussion paper about the potential consolidation took the need for legislative consolidation as a given. We seem to have skipped a step. Why is this all so urgent?

In The Australian earlier this month Roxon suggested we need consolidation because “the community at large, including lawyers, is unsure or confused about what might already be discriminatory”.

No doubt many people are confused. That’s what happens when governments pass a lot of laws.

But rather than clarifying existing prohibitions, Roxon’s department have chosen a brute-force approach – they plan to make everything discrimination. They haven’t just consolidated existing law. By mixing harassment and hurt feelings with discrimination they’ve dramatically expanded it, opening up vast new opportunities for litigation. The draft bill eliminates confusion, sure, but replaces it with chaos.

Lost in all this is any recognition of the importance of freedom of association.

Free association is one of our least defended liberties. It is just as much a human right as any protection against discrimination. It appears in both the American Bill of Rights and HV Evatt’s Universal Declaration of Human Rights. But anti-discrimination law – a passion of the human rights lobby – has steadily eroded it.

Now organisations have freedom of association only if they meet one of the exemptions specified in law. It is the responsibility of religious organisations to justify why they should be allowed to choose employees according to religious doctrine, rather than the government to justify why those organisations should be prevented from doing so.

We have had anti-discrimination laws for nearly 40 years. They’ve taken on a life of their own. The Government is now putting more effort into specifying what is permitted, rather than what is prohibited.

It’s hard to think of anything more contrary to the principle of human rights than that.

Memo To Government: Having An Opinion Is Not A Crime

By now we ought to have learnt this lesson: don’t let lawyers write law. At first glance, the Gillard government’s proposed changes to federal anti-discrimination law seem pretty benign. The expressed goal is to merge a bunch of acts into one omnibus act, reducing red tape and duplication. But this impression lasts for exactly as long as it takes to read the draft Human Rights and Anti-Discrimination Bill 2012. Then it becomes clear the goal is something else entirely – to politicise civil society and tangle our interpersonal relationships in litigation.

It is an extraordinarily broad, excessive, vague and dangerous piece of legislation. To take one of the bill’s most revolutionary provisions: it would become unlawful to offend someone in a work or any work-related environment because of their political opinion. Yes, the bill actually says “political opinion”. If it became law, our beliefs would become sacrosanct. It would be against the law to insult them. The idea is absurd. Politics – the winner-take-all contest for power – is always going to be offensive to someone.

”Work-related area” could mean almost anything as well. The government says it intends to take a broad view of what counts as work-related. Even volunteering would be covered.

So, did a colleague say something disparaging against the Greens? Sue them. Not amused by a cartoon on a co-worker’s Facebook wall? Sue them. Didn’t get invited back to the bake sale after you called the Prime Minister “Juliar”? Probably discrimination – sue them all. Don’t be shy. If you disagree with someone’s politics, you can just take them to court.

Has the government really not thought this all through? Or do they genuinely want to bury society in an avalanche of lawsuits and legal threats?

Let’s give them the benefit of the doubt. Sure, oppositions are sometimes pressed for time, but governments bother to read their own legislation. It seems there are lawyers within the Attorney-General’s Department who believe Australians should be encouraged to take each other to court for trivial slights.

Australia’s political classes have long made a hobby of suing each other. Now the government wants the hoi polloi to share the fun.

The draft bill even reverses the burden of proof in favour of the persons saying they were offended, and ensures that they won’t be penalised if they lose. These provisions are all designed to make the process easier; to ensure more lawsuits are launched.

On Wednesday, the president of the Australian Human Rights Commission, Professor Gillian Triggs, conceded the bill perhaps goes too far. “Maybe there’s wisdom,” she said, in raising the threshold for legal action above offence.

Wisdom, yes, but wisdom her organisation does not share. The Human Rights Commission’s official recommendation to government was not to ease back but to double down – to make it unlawful to politically offend anybody in any area of “public life”. This would include “access to public places”.

Still, that argument has a perverse logic. If the government thinks of workplaces as part of public life (that’s what the draft bill says) why should the ban against political offence be limited to the office or factory?

But it’s hard to think of anything more undemocratic than the exclusion of controversial political opinion from public life. Free debate is a pillar of liberal democracy. We should be resolving our political disagreements in public, not through lawyers.

The Australian Human Rights Commission has a brief to promote and protect human rights. And it’s been pushing for these changes for years. There’s no surprise there. The commission faces a specific set of incentives. Discrimination complaints go to the commission for “conciliation” before they head to court. And the more human rights problems there are, the more human rights problems the commission will be asked to conciliate.

In a 2009 paper, one Human Rights Commissioner even said the government should “moderate” the expression of religion in public. In his view, religions needed to be tamed by “the hand of government, even if gentle and gloved”.

Freedom of religion and expression are our oldest liberties. Yet in the mind of the government’s chief human rights body they ought to take a back seat to new rights such as the right not to be offended.

The commission talks about trade-offs between competing rights. These trade-offs seem very one-sided. Inevitably, the government ends up with more power and civil society ends up subject to more legal control. This bill goes to a Senate committee over the Christmas holidays. It needs to die a quick death.

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.

Sent To Prison For Making An Ebook

In 2003, a man made an ebook. It was not a complex task.

Belal Khazaal downloaded some articles from the internet, excerpted his favourite bits, threw them all together, and wrote a 155 word introduction. In those brief comments, he prayed the ebook “would be of benefit to everyone working to support” Islam.

Khazaal called the book Provision in the Rules of Jihad. He uploaded it to a website that is either (depending on whose expert witnesses you prefer) a repository of texts on Islamic philosophy, or a repository of texts on Islamic philosophy including some written by terrorists.

For his efforts, Australian courts sentenced Khazaal to 12 years in prison. Late last week, the High Court affirmed Khazaal’s conviction.

Described like that, Khazaal’s actions are comically banal and his punishment bizarrely disproportionate.

Does that comic banality disappear if we add that according to the Australian law his ebook had “an obvious and direct connection with assistance” for terrorism? This form of written work was made illegal in 2002.

Or that one chapter was titled “Reasons for assassination”? It included recommended targets (“diplomats, ambassadors” and “holders of key positions” in “atheistic countries” like Australia) and recommended techniques (“wireless detonation, letter bombing, booby trapping”, “cake throwing” and “hitting with a hammer”).

Yes, “hitting with a hammer”.

Even with these extra details, Khazaal’s editing job doesn’t come across as a great threat to the Commonwealth. He took things he found on the internet and packaged them up as his own.
Khazaal complains and apologises throughout his short introduction, saying the ebook would be better if he had more time, if he was fully settled in his residence (sure it would be, Belal). No question, his professed beliefs about violent jihad are distasteful and hateful. But more than anything, he comes across as a bit pathetic.

The courts may have been correct to say that compiling this ebook constituted an offence under the Commonwealth’s Criminal Code. That does not mean these offences are good law.

Between September 11, 2001 and September 11, 2011 the federal government passed 54 new pieces of anti-terror law. The legislative output was extraordinary.

As George Williams notes, during the Howard years, the government was passing one new anti-terror law every 6.7 weeks. As soon as one bill was through the Parliament, it was onto the next.
Another commentator has called this “hyper-legislation”. By volume and impact, the new Australian anti-terror laws greatly exceeded those passed in the United Kingdom, Canada and even the United States.

The 2002 changes to the Criminal Code are, in fact, some of the more benign changes made in that decade of frenzied activity. More aggressive reforms in 2005 even reintroduced the long-dormant concept of sedition. (To its credit, the Rudd government relaxed those sedition laws in 2010.)

Yet that decade of hyper-activity has damaged our legal system. The boundaries between legal and illegal activity have dangerously faded.

And with all that new law, it has still taken nine years of police work, anti-terror intelligence, and legal argument to get to the Khazaal High Court decision last week. Are we safer? Khazaal’s source material is still online.

In a long and important paper from 2005, the American constitutional scholar Eugene Volokh asked whether “crime-facilitating” speech should be considered free speech. That category includes everything from the Anarchist Cookbook, which describes in detail how to make drugs and bombs, to a lookout yelling “run!” when police arrive to arrest his criminal friend.

Volokh concluded that much crime-facilitating speech is “dual-use”. Speech which can facilitate crime can also inform non-criminals about risks, about issues of public importance (such as the vulnerability of key Australians to hammers), or even just entertain.

A government should not ban speech that has a lawful and valuable use simply because it may also be used by criminals. Volokh argued that to the extent crime-facilitating speech has such value, it should be considered to be within the bounds of free speech.

Khazaal’s ebook would fall easily within those bounds. Does Islamic theology demand violent jihad, and against whom? Khazaal has published his view. Know your enemy.

And it’s hard to say there has been any great, compelling harm caused by his compilation. Words are cheap. The Anarchist Cookbook provides more technical detail than Khazaal offered, and is free to read across the internet.

Belal Khazaal may be a bad guy. He may deserve to be in prison. Australian courts decided he could not be regarded as “a person of good character” at sentencing because of convictions in Lebanon for donating to alleged terrorist organisations.

But if he deserves to be in prison in Australia, he deserves to be there for a greater crime than making an ebook.

Offence Against Free Speech

No question: in the Western world, offence is gradually trumping free speech. Consider four separate incidents, all of which occurred in the last week.

Back in 2008, News Limited’s Perthnow.com.au published a series of articles covering the deaths of four Aboriginal boys, who had stolen a car and died in an accident shortly after. The mother of three of the boys took legal action over comments published below the articles.

The Australian Federal Court found last Tuesday a number of those comments breached the Racial Discrimination Act.

Absolutely, the comments were cruel. They should not have been posted. One read “if you’re hopeless at mothering, recognise you are hopeless and don’t breed”. Another told law makers to “get out of thier [sic] ivory towers and start dealing out real punishment… instead of the 5 star treatment they get in prison”.

News Limited was ordered to pay $12,000 compensation for “offence, insult and humiliation”.

There has been one report (published in Fairfax papers) about this trial. Compare that to the outpouring of commentary about the Andrew Bolt case late last year: Factiva counts 333 separate pieces in newspapers alone.

Yet the Perthnow finding draws heavily on precedents set by the Bolt case. Sure, the Racial Discrimination Act found its current language back in 1995. But the act’s substance is only now being tested, and that substance suggests that the limitations on freedom of speech which it sets are very broad indeed. This is an evolving – and expanding – area of law.

For instance, notice that nothing in the comments quoted above makes reference to the fact that the boys were Aboriginal. The Federal Court decided, given the context of the news stories, the comments should be considered racial hatred nonetheless.

Much more attention has been given to the Kyle Sandilands episode – not least because of the extraordinary outcry when Sandilands originally aired his bizarre rant against a critic of his television show in November 2011.

Many people have suggested the Australian Communications and Media Authority’s response to Sandilands has demonstrated how weak the regulator is. But obviously a regulatory agency does not have the power to sack an employee of a private company.

And the new license condition which ACMA intends to impose on Sandiland’s station 2DayFM is actually quite significant. These new conditions provide a pretext under which ACMA could take away the station’s licence.

The conditions stipulate that 2DayFM cannot broadcast material which “demeans or is reasonably likely to demean women or girls generally and/or any woman or girl in particular”. Read that last clause carefully. For a speaker to “demean” any person who happens to be female is now forbidden – at least if they speak on 2DayFM. Sure, “Juliar” is in bad taste, but is it something that really needs to be regulated?

This is a dangerously illiberal path we are walking. And it’s a path other Western countries have travelled further along.

The conviction last Tuesday of a 21-year-old student in England for a stream of racist tweets provides no better illustration. Liam Stacey has been sentenced to 56 days jail for the sort of obscene trolling which is unhappily common on Twitter.

What Stacey wrote was foul, but his is an extraordinary punishment. Stacey was apparently drunk, and hastily deleted his tweets.

Of particular importance is the law he was prosecuted under. The UK Public Order Act 1986 prohibits “threatening, abusive or insulting words or behaviour”, which it places under the heading “fear or provocation of violence”. That this has evolved to become the criminalisation of idiocy shows how apparently modest laws can become tyrannical ones.

Even further along the path is France, where the perfumer Jean-Paul Guerlain was fined 6,000 euros for saying in a TV interview that he “set to work like a Negro”. Guerlain got off lightly. The French court could have imposed a six month prison term.

Obviously, Perthnow should not have published the seriously hurtful comments. Kyle Sandilands should not be such an oaf. One ought not get drunk on Twitter and hurl racist insults.

But if we are to remain free we must keep alive the philosophical distinction between things which are unlawful, and things which morally wrong but still lawful.

As governments expand their regulatory reach, they appear unable to conceive of the latter. Perhaps that’s no surprise. Legislators, lawyers and judges see all social issues through the prism of law.

But this legalism means we are losing confidence in society to police itself; to maintain its own standards. 2DayFM saw its sponsors drain away and its audience shrink. Liam Stacey was shouted down by others on Twitter and recanted his hateful words.

Indeed, the judge in the Stacey trial said something accidentally revealing while delivering his sentence: “I have no choice but to impose an immediate custodial sentence to reflect the public outrage at what you have done”. The power and effect of that public outrage goes unremarked here. Obviously, state regulation seems intent on supplanting society’s ability to ostracise and condemn.

And a society that drags people into the courts for nothing but offence is a deeply unhealthy society.

Free Press To Be Sacrificed For Political Retribution

Freedom of the media is too important to be controlled by government.

The Independent Media Inquiry has proposed just what was expected: an outrageous attack on freedom of speech and the press.

Its 470-page report, written by inquiry chairman Ray Finkelstein and released on Friday, concludes Australia needs a mandatory ”News Media Council” that would have coercive powers to regulate what it deems is ”fairness”, ”accuracy”, ”balance”, and ”quality” in the press.

This new independent regulator would have power to compel newspapers to publish responses from people who feel aggrieved. And it would have the power to censor: it could, for instance, force media organisations to delete stories from their websites that regulators feel aren’t up to standard.

But it wouldn’t just regulate newspapers. As if to emphasise just how radical his proposals are, Finkelstein says websites that get more than 15,000 hits a year should be brought under the council’s jurisdiction. That’s just 41 hits a day – in other words, pretty much every website publishing anything that could be described as ”news, information and opinion of current value”.

The new body would also regulate every magazine with a print-run above just 3000 copies. That would be the entire magazine industry, from the street press upwards. With such ambition, one might ask why Finkelstein excluded books, email newsletters, and Twitter from his regulatory web.

The specifics of Finkelstein’s proposals are bad enough. But they represent something more concerning: a reversal of the principle that it is not the role of governments to stand in judgment of public debate. The report may insist that this government-funded body will be independent, but in reality, it is a government body. And, when it comes to freedom of speech, the state should be subordinate to society – not the other way around.

This principle that has taken centuries to develop should not be abandoned just because some politicians don’t think they get a fair shake from newspapers. The media inquiry was obviously political retribution against critical journalism.

The Greens and the government have long believed newspapers report the carbon tax and the national broadband network unfairly (these issues are specifically raised in Finkelstein’s report). More broadly, they claim the press has an anti-government bias. Labor senator Doug Cameron said in November: ”The Murdoch press are an absolute disgrace, they are a threat to democracy in this country and we should absolutely be having a look at them.” Cameron was angry about leadership speculation printed in The Daily Telegraph. Of course the speculation turned out to be entirely true.

Recall that Bob Brown opportunistically used the News of the World phone hacking scandal in Britain to suggest that the Australian government should license journalists and newspapers. But to be fair to Brown, perhaps licensing was not as far-out an idea as it seemed at the time, given Finkelstein’s conclusions.

If Finkelstein’s proposals are adopted, all news websites, newspapers and magazines would have to sign up to and comply with the News Media Council’s standards of conduct. If they refuse, they would be taken to court and punished ”in the usual way”. This might not be called ”licensing” but it is virtually the same thing.

What happens if a blogger rejects the standards or refuses to delete something? Eventually, after contempt of court proceedings, they could be jailed. Nor are Finkelstein’s proposals unprecedented. The News Media Council would apply to newspapers, websites and magazines the same sort of regulations that at present oversee radio and television broadcasters. Problem is, those regulations are frequently used by political partisans as a weapon to attack controversial broadcasters.

Late last year Alan Jones was taken to the Australian Communications and Media Authority because he had described New South Wales bureaucrats as ”scumbags that run around preying on productive people”.

The authority, in its wisdom, decided Jones had not made ”reasonable efforts” to air other ”significant viewpoints”. And in response to a complaint by GetUp!, it is holding a formal investigation into whether Jones interviews too many climate sceptics. If we value free expression, these are not judgments any government body should be making for us.

Yes, there is good journalism and bad journalism. Newspapers should offer rights of reply and letters pages.

We should reject Finkelstein’s proposals, not to defend the media but to defend a fundamental liberal principle: no government should have power to decide what constitutes ”fair” or ”balanced” speech. Freedom of the press is just too important.