Same-Sex Marriage: When Did Dissent Become Discrimination?

The politics of gay marriage have shifted radically in a very short space of time. Until 2011, the Labor Party was firmly opposed to gay marriage. The Coalition was firmly opposed just four months ago.

So it’s remarkable that a Catholic archbishop in Tasmania is being dragged to a government anti-discrimination authority for opposing same-sex marriage – the position that was until very recently, shared by both parties.

Last September, Martine Delaney, the Greens candidate for the federal seat of Franklin, took a complaint to the Tasmanian Anti-Discrimination Commissioner that the Catholic Church had produced and distributed a booklet which “does immeasurable harm to the wellbeing of same-sex couples and their families across Tasmania”.

This Tasmanian case has Australia-wide significance. We’ve just had a sustained national debate about free speech, and are about to go into a national debate about gay marriage.

Polls show that about 70 per cent of Australians support gay marriage, so you might think the plebiscite is an assured success. Indeed, Tasmania’s Liberal-led lower house last week became the third state to agree to a motion supporting legislation of same-sex marriage. But that success is not at all certain if gay marriage is perceived as the thin end of the wedge for a more general attack on the liberties of religious communities and freedom of conscience.

The booklet in question, Don’t Mess With Marriage, offers the basic Christian case against gay marriage: families are the founding blocks of society and children need a mother and father.

It’s hard to overstate how moderate this booklet is. It offers no fire or brimstone. It’s gentle and Christian, of the suburban pastoral variety. There’s much expression of sympathy for same-sex attracted people who also want to follow religious teachings that preclude their sexuality. It is a calm explanation of a major position on a prominent political policy issue.

To be offended by the booklet is to be offended by what was, until very recently, the mainstream view on gay marriage, and one still shared by a large minority of the population.

For this reason if nothing else, the complaint ought to have been dismissed as laughably frivolous. But this month the commission decided that the Catholic Church has a case to answer under Tasmania’s Anti-Discrimination Act.

The Tasmanian law almost exactly parallels the controversial section 18C of the Racial Discrimination Act that the conservative commentator Andrew Bolt was found to have breached in 2011, and which Tony Abbott (in opposition) promised to repeal.

There are, however, two revealing differences between the Tasmanian and the federal legislation.

The first is that the Tasmanian law prohibits offensive and insulting speech not only on race and ethnicity, but on 20 different areas from sexuality to religious belief to political affiliation.

In this sense the Tasmanian act resembles the Human Rights and Anti-Discrimination Bill which the Gillard government failed to push through parliament in 2012, which would have made it unlawful to offend someone on virtually everything (including their political opinion!) in the workplace.

It is symptomatic of the spread of no-go areas in Australian public discourse. Governments increasingly believe that protecting us from being offended – on whatever spurious grounds – is more important than allowing us to speak our mind.

The second difference is that there is no caveat in the Tasmanian act that even purports to protect free expression. Defenders of the federal Racial Discrimination Act often point out that section 18C is followed by section 18D which provides protection for speech made in good faith on matters of public interest. This protection is weak. The court decided in the Bolt case that something could not be considered in good faith if, in the view of a judge, it was too sarcastic and had errors.

However, the Tasmanian legislation doesn’t even offer that token concession to basic liberties. In a parliamentary debate in 2013, the Attorney-General dismissed concerns by insisting the bill “does not impinge on free speech; it provides protection from bullying”. All words are cheap. The words of politicians – even when they’re interpreting their own legislation – are junk.

Both supporters and opponents of gay marriage should be very unhappy with the Tasmanian case. Even if the Catholic Church successfully defends against the anti-discrimination complaint, damage has been done. Free-speech theorists talk about the “chilling effect” when the cost of defending oneself against baseless claims hampers the open expression of views.

And in the event that the plebiscite fails, it will be because voters feel that expanding marriage freedom to one group means limiting the freedom of another. The date of the vote hasn’t even been set, but the debate about gay marriage has already moved from the realm of public discourse to legal sanction.

The Tasmanian legislation also tells us something about the ongoing political contest over free speech in Australia.

All those human rights bodies – such as the government’s Australian Human Rights Commission – that flaunt the vital protections of section 18D did not lift a finger to protest the lack of such protections in the Tasmanian legislation. Just as they fully supported the Gillard government’s 2012 bill until its absurdities became politically controversial.

When the Abbott government broke its promise to repeal section 18C in August 2014, many commentators believed a line had been drawn under the arguments over free speech and offensive speech. Not at all. Watch Tasmania. This is the debate we are all about to have.

Tax Reform A False Start In Pursuit Of Economic Growth

The new Turnbull government should stop talking about tax reform.

Tax reform is a poor use of its political capital. It is a waste of the goodwill Malcolm Turnbull brings to the prime ministership. The challenge Turnbull faces is not to make our tax system slightly more efficient. The challenge he faces is how to make the economy grow.

When he became Treasurer, Scott Morrison stated that the Commonwealth has a spending problem, not a revenue problem. That is, the government wants to focus on spending cuts rather than tax increases.

This is excellent, as far as it goes. But in truth our real problem is growth.

The International Monetary Fund estimates that the Australian economy is going to grow just 2.5 per cent this year. Back in the Howard years, growth averaged 3.7 per cent a year. The Reserve Bank governor has publicly speculated that our lower growth might be the new normal.

If you want to blame the stubborn budget deficit on anything, blame it on this. John Howard, Kevin Rudd, Julia Gillard, Tony Abbott, Malcolm Turnbull: they’ve all been riding the waves of our growth figures.

Some governments have made the problem better and some have made it worse, but the simple fact is that policymakers can no longer rely on the same level of growth that once delivered windfalls to the Commonwealth budget.

The focus on tax is a distraction. Ever since Kevin Rudd commissioned his own Treasury Secretary to conduct a “root and branch” investigation of Australia’s tax system in 2008, tax reform has been an obsession of governments. Joe Hockey was only following Labor’s lead when he launched the Coalition’s tax reform process.

It is true that the tax system could be made more economically efficient. It would be more efficient for taxes on income to be further replaced by taxes on consumption. This is why many economists have said that the GST should be raised and personal and company tax reduced. Morrison has been talking about this possible trade-off already.

But it’s hard to see why this is a national priority. Efficiency isn’t the only thing we want from a tax system. Indeed, a theoretical insistence on efficiency was what gave us the Rudd government’s mining tax; a tax which was understood by a tiny fraction of the population but was the inexplicable and unhappy centrepiece of Labor’s economic agenda.

And while efficiency makes it easier for governments to extract more money out of us, is that really such a virtue? We ought to know when we are being taxed. Voters need to know what their government is doing. They need to know how taxes are raising the prices of the goods they buy and reducing the money they have to buy those goods.

A budget emergency is the worst time to conduct tax reform. There’s not a person in the country who believes the economy will escape this round of tax reform with a lower total tax burden.

Every incentive in the Treasury department is to edge taxes up. That’s why Joe Hockey cracked down on so-called corporate tax “avoidance”. That’s why the GST is now to be levied on online purchases. And anybody who thinks eliminating superannuation “concessions” will help the economy has rocks in their head.

It’s all incredibly counterproductive because the fixation on revenue and tax increases actually holds back the growth we need to encourage. Taxes take money out of the productive parts of the economy. Perhaps the government thinks it might be able to use its revenue to lay the foundations of growth – by investing in infrastructure and private education. In practice, too much of this investment goes to white elephants and degree mills.

Governments – directed as they are by professional politicians with their eyes on marginal seats and swinging voters – aren’t that good at spending our money wisely. Turnbull needs to be careful his interest in innovation doesn’t become a stream of taxpayer-funded boondoggles. Much better to revitalise the Coalition’s flagging deregulation agenda, refocus on industrial relations, and eliminate any regulatory burdens holding back employment and production.

Even the constant drumbeat of tax reform is likely to be harming growth. We’ve been talking about tax reform for nearly a decade. Uncertainty about Australia’s future tax regime makes companies less eager to invest. They know the tax system is probably going to change. They don’t know when, or how.

But there’s a deeper reason Turnbull should fixate on growth rather than taxes. Higher growth means increased living standards. Higher growth means a more prosperous Australia and more prosperous Australians. This – not spending, not revenue – should be what keeps Malcolm Turnbull and Scott Morrison awake at night.

Why We Value The Old School Tie

It’s a very Melbourne thing to be horrified by school fees – and there is much to be horrified about. The fees at Melbourne’s most expensive schools are pushing $30,000 per child.

But take a step back. These big fees are a positive sign of the financial seriousness that society takes educating the next generation. Before we get to discussing equality or standards or choice, let us agree, please, that spending money on education is good.

There’s a real sense in which anti-private school hostility has nothing to do with education, per se, in that some people are richer than others.

What is the hypothetical alternative to wealthy parents investing in their children’s education? That they splurge on holidays and cars? Hand the money over as inheritance? Buy property? Surely we can welcome the money being used to develop human capital.

The returns on education are vast. A better secondary education experience leads to more choice of tertiary education, which in turn can translate into higher earnings over a lifetime.

No wonder parents want to buy as much schooling as they can possibly afford.

Individual students reap most of the benefits from their education. But as education advocates constantly point out, society benefits too. A more educated population is a more innovative, productive, and ultimately prosperous population.

Thus some investment by wealthy parents on private education – over and above what is churned back to them through the taxation system – flows through to society as a whole.

All this makes the hyperventilating about private schooling that forms such a fundamental part of Melbourne’s intellectual life more than a little ridiculous.

In an Age column on Thursday, Julie Szego suggested private schools seem a little like a “con” for those parents who are “bleeding money on private school fees on the assumption this buys their child a competitive advantage”.

Perhaps if you imagine modern Australia as a dog-eat-dog fight for prestige, then every attempt to increase human capital formation looks like a brutal feeding frenzy.

But it’s true: there’s a puzzle here. While private schools get better year 12 results, a whole host of evidence shows that once researchers control for things such as family background, the education level of parents, peer performance and so forth, many differences in results between private schools and public schools substantially decrease. Educated and engaged parents are likely to have educated and engaged kids, regardless of what school those kids are sent to.

So are parents being irrational when they send their kids to private schools? Of course not.

In many ways, by paying for private education, parents are buying their children friends. Who you go to school with matters. It is better have classes with peers that brag about doing too much study than too little. In his new book, Our Kids, social scientist Robert Putnam argues that in the United States peer effects cause a large part of education disparities.

Also, education is about more than test scores. All we know about why parents choose individual schools relates that choice to a school’s values, facilities, extracurricular activities, location, or how nurturing or driven the staff are. In other words, how good a fit it is for their child.

Rather than obsessing about the riches hidden behind the private-school fence, why not focus on how to make public schools more appealing?

Public schools would be more competitive against private schools if governments allowed more variation between schools, granted them more independence, and made it easier for more children to attend schools outside their geographic school zones. Remember, it isn’t just money and test scores driving demand for private education.

The obsession with the most expensive schools ignores those smaller, cheaper private schools blossoming around Melbourne, offering marginal improvements and more choice than that offered by the public system.

Funny how the debate about equality is always focused on the lifestyles of the rich, rather than the living standards of the poor.

The Age reported last week some private schools are taking legal action against families who fail to pay fees owed. But by all accounts private schools go out of their way to be lenient on payment. If you’re going to be in debt to anyone, you’d want it to be a school.

After all, it’s hard to imagine much sympathy for families that, for instance, did not pay a builder for a renovation and were subsequently taken to court.

Such is the moral baggage around private schooling that recouping debt fairly incurred is seen as some sort of ethical violation – yet another black mark against these malevolent institutions.

All that fury, all that outrage, directed towards what? Too much money spent on education?

Unelected Officials Are Stifling Our Democratic Freedoms

Finally there’s a serious conversation happening about the Australian Parliament’s scorn for democratic accountability and the rule of law.

It was always going to be a bit controversial to propose absolute ministerial discretion to strip citizenship from dual nationals on the 800th anniversary of Magna Carta, that great symbol against arbitrary power.

But we’ve had a rule of law problem for a very long time in Australia. Long before the Islamic State. Long before al-Qaeda. And that problem has gone largely unnoticed – whether due to a lack of awareness or a lack of interest – by those groups now furious about the Abbott government’s national security policies.

Let’s start with the most basic rule of law principle: that we all deserve legal protections when accused of an offence, whether that offence is terrorism or traffic violation.

Last year the Institute of Public Affairs conducted an audit of all Commonwealth legislation and found 262 provisions of federal law that violated fundamental legal rights. These either removed the right to silence, removed the privilege against self-incrimination, reversed the burden of proof, or did away with “natural justice” – the suite of rights like the right to a trial, to appeal judgments or to know what we are charged with.

These violations aren’t just found in the sorts of laws that the human rights community was talking about this week – anti-terror and immigration laws. They’re found in economic laws like the Australian Competition and Consumer Act 2010 (that regulates mergers and consumer protection) or the Navigation Act 2012 (which regulates shipping) or the Broadcasting Services Act 1992 (which regulates broadcast media). The Fair Work Act violates all four legal rights.

In other words, they’re targeted at people in business, not just people in terrorist organisations. The Tax Administration Act has nearly as many violations of the right to natural justice as the Migration Act does.

Shortly after the 2013 election, the new attorney-general George Brandis directed the Australian Law Reform Commission to look at laws which limit traditional rights and liberties with a particular focus on workplace, commercial and environmental law.

You’d have thought such an investigation would have been well covered already by the Australian Human Rights Commission. But the commission, along with Australia’s human rights community more generally, have utterly neglected limits on personal freedom when they are bundled up with limits on our freedom to trade, truck and barter.

In a recent speech, the commission’s head Gillian Triggs pointed to all the post-September 11 laws which limit rights in the name of anti-terrorism. What about those which limit rights in the name of market failure?

It’s only economists and the occasional corporate lawyer that have been talking about, for instance, the draconian powers of the Australian Securities and Investments Commission.

Of course, rule of law is about more than personal legal protections. It describes the principle that administrative decisions should be made by elected officials and according to due process.

Parliament should write the laws and control the purse strings. Many of these principles can be traced back to Magna Carta. These principles have come under sustained assault in recent decades.

The prospect of ministerial discretion to strip citizenship without judicial review is just a tiny window into a much deeper problem.

For instance, Australian governments have vested more and more decision-making power outside Parliament and into “independent” bureaucratic agencies. These undemocratic, unelected officials have enough discretionary power to effectively make government policy.

Just last month the Tax Commissioner was granted the power to change tax law if he felt doing so would be in the interest of taxpayers. But it is Parliament’s job to make and amend the law of the land, not the bureaucracy’s. Other regulatory agencies have similar powers.

In many ways Australia is not a liberal democratic state, but a democratic-administrative state, where power is shared between elected representatives and a permanent network of independent bureaucracies who are only loosely answerable to Parliament, let alone voters. Some of the basic institutions of our government are undemocratic.

Gillian Triggs was right to say our democratic freedoms are under threat. Still, did she see any irony in the fact that the democratically elected Abbott government obviously wants to fire her but – since she commands an independent statutory agency – it cannot?

In 2012 Parliament passed a bill giving the government blanket authorisation to spend money on basically anything it wanted without having to ask Parliament’s permission first. The bill was rushed through with bipartisan support following the school chaplains case in the High Court. It was barely noticed by the press. Yet it was one of the most complete surrenders of parliamentary responsibility in the last half century.

There are serious problems with the Abbott government’s citizenship-stripping proposal. Coalition members might be happy with Peter Dutton holding such power. But all governments are temporary. Will they be just as happy when the next Labor immigration minister is able to wield the same powers?

This is the thing about the rule of law. Just as it protects good people and bad ones, it constrains good governments and bad governments alike. To abandon the rule of law is not just to abandon those protections, but to erode democracy itself.

Conservative Voters Blindsided By Coalition Tax Increases

What exactly is the point of a Coalition government if it offers the same sort of tax increases as voters expect from Labor and the Greens?

It’s disturbing how quickly the Abbott government has turned its attention to boosting government revenue rather than reducing government spending. It’s only been in power 18 months.

First, there’s the planned deposit tax, a levy imposed on all our bank accounts purportedly to pay for the deposit insurance introduced by Labor during the global financial crisis.

When Kevin Rudd proposed the deposit tax in August 2013, Joe Hockey, then shadow treasurer, said it showed how “Australians end up paying for Labor’s waste and mismanagement”. So what does it say now the tax is being mooted by the Coalition?

Then there are all the possible changes to the GST. The GST-free import threshold of $1000 might be lowered. The government is drawing up legislation to impose GST on digital downloads – the so-called Netflix tax. There’s even been discussion of broadening the GST base to include things like fresh food, health and education.

There’s also a Google tax on the horizon. Hockey said last month companies that do not pay the “legitimate level” of tax are “thieves”. But tax minimisation is perfectly lawful. We all do it when we fill out our tax forms. In fact, firms have an obligation to their shareholders to minimise tax.

To change corporate tax law as Hockey wants wouldn’t be recouping money that is rightfully the Treasury’s. It would be increasing the corporate tax burden, and increasing investment uncertainty while it’s at it.

Likewise, the government wants to tackle what is described as the superannuation tax “concession”. Here it is on a virtual unity ticket with Labor.

Don’t be fooled by the word concession. It is a euphemism. The issue here is that while income is taxed progressively – rich people pay proportionally more than poor – superannuation is taxed at a flat rate of 15 per cent. The government thinks wealthy people are putting too much money into super, avoiding high marginal income tax rates, and depriving Treasury of money. Let’s be blunt: to eliminate superannuation concessions would be just another tax increase.

But there is a more fundamental point. Superannuation is taxed at a lower rate to counterbalance the income tax system’s bias against savers. All those so-called loopholes and thresholds and concessions exist for a reason. Many of them exist to prevent perverse and unfair taxation, to treat different assets equally, to avoid double taxation, to encourage saving. And all of them were instituted as part of a democratic bargaining process. Eliminating a loophole is the same as raising a tax.

The Coalition should know this instinctively. Liberal parliamentarians campaigned under the slogan “Our Plan: Lower Taxes”. When he became leader Tony Abbott declared “there will not be any new taxes as part of the Coalition’s policies”. Now his team are lining up alongside Bill Shorten and Christine Milne to push for new and higher taxes. Let’s hope they’re embarrassed.

I haven’t even mentioned bracket creep, the process whereby inflation slowly pushes wage-earners into a higher tax bracket without making them wealthier.

The tax system is full of little revenue-scrounging tricks like that, tricks of language and mathematics and perspective that hide who pays and how much.

Funny how those tricks always work in Treasury’s favour. Bracket creep could be done away with once and for all by indexing income tax to inflation. Malcolm Fraser’s government experimented with such a policy, but abandoned it. It is in the government’s political interest to let bracket creep work its subtle expropriating magic.

The government’s problem is spending, not revenue. The public spat this month between Hockey and Peter Costello was revealing. If you missed it, Costello criticised Hockey’s desire to raise tax. Hockey responded that he wished he had the sort of revenue Costello enjoyed in government.

But hold on: Hockey does have that sort of revenue. If we adjust the figures for inflation, Hockey has $18.6 billion more revenue than Costello received in his last budget. (The most recent reported figures appear in the December Mid-Year Economic and Fiscal Outlook.)

The government’s other budget excuse – that the iron-ore price is bottoming out – isn’t convincing either. Yes, iron ore could go as low as $US36 ($46) a tonne. It was nearly $US200 a few years ago. But that was under Labor. Costello hadn’t been so lucky. Iron ore only lurched above $36 after the Howard government left office.

Hockey said he was kicking off a national conversation about tax and efficiency when he launched his tax discussion paper last month. Economists – particularly the sort of economists that populate treasury departments – spend a lot of time thinking about what is the most efficient tax system. The discussion paper reflects a lot of that thought. It judges taxes on how much they distort our incentives to work and produce.

However, efficiency isn’t the only thing we want in a tax system. Too often politicians use the word efficiency as a synonym for ingenious. The 17th-century French finance minister Jean Baptiste Colbert famously described the art of taxation as “plucking the goose as to get the most feathers with the least hissing”. You can understand his view. For a treasurer the most important thing is maximising revenue.

But it’s not obvious why we should be pleased the government wants to pluck more of our feathers. A Coalition government, no less.

Curbing Free Speech Would Deprive Us Of Powerful Tool To Wield Against Islamist Radicalism

Tony Abbott was right about the significance of the massacre at the satirical magazine Charlie Hebdo when it happened in January.

“Freedom of expression is the cornerstone of a free society,” the Prime Minister said. “From time to time people will be upset, offended, insulted, humiliated … but it is all part of a free society”. He praised the cover illustration of the next Charlie Hebdo edition, which depicted Muhammad crying. “I believe in free speech. I absolutely believe in free speech.”

These were powerful, important sentiments. They were a recognition of the threat of Islamist terror to our basic liberties, a threat which we saw manifest in the Danish cartoons crisis of 2006, the murder of the Dutch filmmaker Theo van Gogh, and the fatwa which led to Salman Rushdie’s decade in hiding. Abbott offered them at a moment when they were most needed.

But fast-forward to last Monday, and a central part of the government’s national security strategy is to boost laws against speech that is “vilifying, intimidating or inciting hatred”. The government wants to crack down on hate preachers.

So is free speech inviolate, a liberty that needs to be defended as fundamental to civilisation and democracy? Or must it be restricted for the fight against terrorism?

To understand some of the ructions within the Liberal Party right now, look no further than the government’s back and forth on freedom of speech. The government is struggling with itself on the very idea of liberty.

The Coalition came to power declaring it would pursue a “freedom agenda”. It would be “freedom’s bulwark” against a Labor Party that, under Julia Gillard, had attempted to control and regulate the free press.

And the Coalition promised to repeal, at least in part, section 18C of the Racial Discrimination Act, the law which makes it unlawful to offend or insult someone on the basis of their ethnicity, and the law which Andrew Bolt was found to have breached in 2011.

Section 18C is hardly the only anti-speech law on the books, but it is an iconic one, and was used against the country’s most prominent conservative commentator. For many Liberals, Liberal MPs and those on the right of centre, the 18C promise became a symbol of a reinvigorated, confident liberalism.

Yet over the past six months the Prime Minister has been saying that, in the light of the real threat of terrorism, the balance between liberty and security must tilt further towards security.

This is a false choice.

None of have us the liberty to kill, plot to kill, or incite killing. Preventing and punishing murder is no restraint on freedom. The problem comes when the government proposes to do much more than just enforce the law. Like when it proposes to criminalise non-inciting speech. Like when it proposes to invade everybody’s privacy with mandatory data retention – not just the privacy of those suspected of a crime.

Much of the Abbott government’s earlier national security legislation was necessary and important, particularly the elements that cracked down on foreign fighters. The government now proposes to strip dual citizenship from those who go to fight for Islamic State.

At the same time those necessary legislative changes have been mixed in with some extraordinary overreach. A bill passed in October means journalists who report on “special intelligence operations” could go to jail for 10 years. Another bill passed that month made it a crime to advocate (“counsel, promote, encourage, or urge”) terrorism. But incitement to violence has always been illegal. And there have been laws against advocating terrorism on the books for a decade.

Any law that the government might write to target hate preachers will – almost inevitably – expand to encompass other speech. The government clearly wants to make it illegal to say things like “Osama bin Laden was a hero”. Any legislation that did so would also criminalise the other ideas too. One current darling of the academy, the shock philosopher Slavoj Žižek, praises the terrors of Mao, Lenin and Robespierre.

Such speech is distasteful and disgraceful, yes. It shouldn’t be illegal.

Legislative mission creep happens. For instance, when section 18C was first introduced in 1994, its advocates said it had a strict and narrow purpose. A piece published in The Age in November that year by Colin Rubenstein and Michael Kapel claimed it was only targeted at “the skinhead on the street yelling racist names and other insults at an Asian man, or a woman in traditional Islamic dress, not newspaper articles or anti-immigration pamphlets”. That has not turned out to be the case.

When he announced that they were abandoning section 18C reforms last year, the Prime Minister said it was because the whole thing had become “a complication” when dealing with Australia’s Muslim community. Labor’s fear campaign against the proposed changes had worked.

Yet last Monday Abbott criticised Australia’s Muslim leaders, wondering why they weren’t speaking up against terrorism themselves. He told them to police their own communities with the proposed anti-hate speech laws.

Which raises the question – does the government think the war against terror requires us to comfort or to confront the Muslim community?

Abbott’s instincts after the Charlie Hebdo atrocity were right. Free speech is a liberty we have to protect, and it is a powerful tool to wield against Islamist radicalism. Why does he now think it is a weakness?

Anti-Terrorism Law Reform Follows Legislate In Haste, Repeal At Leisure Approach

The national security debate over the past four months has been one of the most revealing about Australian political culture in a long time.

It’s exposed serious weaknesses in parliamentary oversight. It’s offered a case study of how big reform needs careful work. And it’s demonstrated how easily public debate slips into well-worn factions.

On August 5, the Abbott government launched its national security legislative agenda – three giant tranches of new anti-terror laws.

For good measure it also announced it was abandoning the proposed reforms of Section 18C of the Racial Discrimination Act. They were, apparently, a “complication”.

This was as complete a philosophical reversal as Australian politics has ever seen. One day the government was wholeheartedly dedicated to restoring freedom of speech. The next day Prime Minister Tony Abbott was saying that the delicate balance between liberty and security would have to shift, and not in favour of liberty.

But there were actually good reasons for the government to be in such a rush.

A 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.

It’s hard to believe now, but until the 9/11 attacks anti-terrorism policy was the responsibility of the states, not the federal government. The first proper Commonwealth anti-terror legislation was enacted in 2002.

Even after more than a decade, in 2014 there is still a strong case for national security law change. The security environment has materially changed over the past 12 months. The Islamic State has attracted more foreign fighters – Australians travelling to be militants for the caliphate – than any other conflict since the war on terror began.

This is a big problem. A study published in the American Political Science Review last year found that one in nine Islamist foreign fighters between 1990 and 2010 later attempted terrorist attacks in their home country.

So we need to be talking about passport control and how to prosecute somebody under the Crimes (Foreign Incursions and Recruitment) Act 1978. Many of the Abbott government’s legislative changes reflect recommendations along these lines by the Council of Australian Governments and the Independent National Security Legislation Monitor.

It’s all complicated stuff. It’s highly technical and legalistic. It concerns marginal changes to existing legal frameworks.

Yet the debate over anti-terror law changes has been dominated by that school of thought which believes that to offer anything less than uncritical support of government proposals is to downplay the threat of terrorism.

This is incredible considering the number of extra security changes the government has pushed through the parliament over and above those targeted at the foreign fighter problem – and over and above those recommended by the many inquiries into counter-terrorism law in recent years.

The government hasn’t explained why the particular threat of foreign fighters means we need to make it illegal for journalists to report on ASIO operations.

Nor has it explained why IS means we need mandatory internet data retention, a requirement that internet service providers store vast databases of information about their users for two years.

The government’s national security laws look more like a shopping list of security desires rather than a targeted response to the specific foreign fighter threat.

Indeed, if you add all the legislative tranches together, it constitutes a reform program of incredible size. It’s a much more ambitious reform program than anything else the government has pursued, even including the budget. It’s more ambitious than you’d expect from any government in its first year.

But pushing through a reform program of this size in such haste has created problems.

For instance, last week parliament passed a follow-up bill to a security bill that was passed in October, designed to fix problems identified in the earlier legislation.

The debate has exposed some remarkable ignorance of the details of the legislation being proposed.

Take Anthony Albanese’s objection that the security measures threaten freedom of the press. This only came after he had supported those measures in parliament. Labor is terrified of looking soft on security, but that’s no reason not to do due diligence.

Likewise, the Attorney-General George Brandis seems to have been caught off guard by the details of his own bill. First Brandis denied that the restrictions on releasing information about ASIO operations was targeted at the media, then he tried to assure journalists he wouldn’t personally approve the prosecution of one of their number.

These issues should have been resolved while the legislation was being drafted. Not weeks after it was passed.

Then there are the problems the national security reforms have caused for the government’s economic agenda.

The time the government spent negotiating with the crossbench on national security issues not directly related to the urgent foreign fighters threat was time not spent negotiating the $7 medical co-payment and the higher education changes.

Now politics has been reset to where it was left in August. Parliament’s focus is back on the budget and the economy.

The foreign fighter threat is likely to ebb when it becomes obvious to Western jihadis that a trip to the Islamic State is a trip to certain, pointless, death.

But the hurried security decisions made in the past few months will stay on the books for a very long time.

Election Campaign A Time For Politicians To Promise What They Can’t Deliver

Election campaigns are incredibly frustrating.

It’s not just that they consist almost entirely of promises that we, the voters, have no way of ensuring will be kept.

Elections are just a bunch of claims and counterclaims about what might happen in the future – claims which rely on opaque assumptions and are offered without detail.

Take, for instance, this week’s little infrastructure costing spat. Labor wants to extend the South Morang train line by eight kilometres so that it ends at Mernda. Labor says that “many aspects of the project are still to be finalised” but they estimate it will cost between $400 and $600 million.

The Coalition disagrees. Treasurer Michael O’Brien said this week the Department of Treasury and Finance has costed the extension at $700 million. Thus another Labor black hole.

What are voters supposed to make of this dispute? Yes, the Department of Treasury and Finance is a more reliable estimator of costs than whatever policy unit Labor has cobbled together in its backroom for the election campaign. But, then again, Labor’s plans are so vague that the track extension could really cost anything.

If Daniel Andrews becomes premier, the South Morang line will be Treasury’s problem. They’ll have to make it work – or get the new government to drop it.

The certainties of the campaign ebb away when faced with the responsibility of government. This is inevitable. It’s like a law of nature.

Andrews offered a rather spectacular illustration of the difference between campaigning and government on Friday. Labor proposes an independent body, Infrastructure Victoria, to advise on new projects. Andrews was asked what he would do if it recommended, say, building the East West Link. The answer was politic. Labor would consider it.

But recall that East West Link is the project whose contracts Labor says it will rip up, regardless of the extraordinary cost of doing so – both the cost to the budget, which will likely have to bear the penalty for contract cancellation, and the cost to Victoria’s reputation with future investors.

Now East West Link 2 is an option?

It’s funny how things can change once an opposition gets the big offices.

The Coalition is proud the budget is in balance. There’s a projected surplus of $1.3 billion in 2014-15. Labor would be secretly chuffed about this too. The healthy budget is how each side can justify their campaign spending sprees. But the government only has a budget surplus because it was conservative with spending over the last term. Voters like spending but they don’t like being taxed to pay for it.

Polls say Labor is ahead. This is not due to any Herculean effort on their part. If Denis Napthine loses next week it will be because any prudent government is vulnerable to being called “uninspiring”. In politics there are few more devastating epithets.

But reform is Canberra’s job now. The states deliver services and build infrastructure. Where’s the room for inspiration in that?

Victoria’s Transport Policies Ruled By The Heart, Not The Head

Possibly the most economically irrational and counterproductive policy of this state election was offered by Labor this week.

You won’t be surprised to learn it was a transport policy. On Tuesday Daniel Andrews’ team proposed a freeze on the Napthine government’s expansion of the number of new taxi licences.

Over the last few years, the release of new licences has seen the market price of a taxi plate plummet. Now there are more taxis on Melbourne’s streets (a win for consumers) and the drivers themselves are more able to afford them (a win for drivers). The only losers are investors who speculated on taxi plates hoping the government would keep them artificially scarce.

Incredibly, Labor also wants to establish a compensation fund for licence holders. (And to think Labor used to be opposed to “rentiers”.)

The Napthine government was only doing what scores of economists have recommended over decades: break the taxi-licence cartel.

But, then, transport policy is ruled by the heart, not the head.

The taxi announcement got little press. It’s not what the parties want us thinking about. It’s just another micro-policy for a micro-constituency.

The Napthine government is pinning its transport vision on one great big project to rule them all: East West Link. Andrews is going with everything but East West Link: most distinctively removing 50 level crossings.

It is fundamentally absurd that the connection between the Eastern freeway and Citylink involves a one-lane crawl through a park, past a zoo, and over a tram crossing. If we can’t fix these sorts of problems Victoria is going to stagnate.

Labor figures giant infrastructure projects are a little abstract, whereas every voter can think of a level crossing between home and their kid’s creche they’d like removed.

But that sort of retail politics cleverness is undermined by Labor calling its transport plan Project 10,000 – after the 10,000 construction jobs it will create. This is weird. You’d hope infrastructure plans were more about what was being constructed than how many people will do the constructing. And the label doesn’t do much to dispel the impression that Labor is doing the bidding of a militant construction union.

There are a near infinite number of infrastructure projects governments could build. Figuring out which is the “best” project is a non-trivial problem. Market-based pricing systems like tolls would offer some guidance to policymakers but these mechanisms are politically unpopular.

The two parties have competing metro rail projects, and competing plans for new ports. On Friday they both committed to overhaul of the Frankston transport hub.

We’re at that end of the campaign.

The parties are honing in on just two or three marginal electorates.

So whose projects appeal most to you? With the exception of Labor’s surrender to taxi rent-seekers, there are few great matters of principle at stake here.

But this is transport. We’re used to that by now.

Security Bill Widens Government Surveillance Powers

The National Security Amendment Bill (No.1) 2014, introduced into federal Parliament last month, is 128 pages long. The bill’s explanatory memorandum is larger again – 167 pages.

It’s an absolute behemoth – complex, labyrinth, and, to outsiders, entirely opaque. In that sense, the bill is a great metaphor for the massive national security apparatus that has developed since the September 11, 2001 terror attacks.

It’s also the first major piece of Australian national security law reform since Edward Snowden a year ago revealed America’s program of global and indiscriminate mass surveillance.

Timing matters. The Snowden revelations demonstrated that not everything done in our name is done in our interest – and too often it is done without any democratic scrutiny, let alone the approval of voters.

So what should voters make of the Abbott government’s new national security bill?

It seems the three most significant elements are a new power to allow spies to plant software on targeted computers, new penalties for intelligence whistleblowing, and a prohibition on anybody releasing any information about “special intelligence operations”.

But it isn’t clear what the practical implications of these powers are. Are there any boundaries on what constitutes a special intelligence operation? Could journalists be prosecuted for reporting on national security leaks? Getting details out of the government is like pulling fingernails.

National security is a unique area of public policy. It’s one of the most important functions of government. Yet citizens have very little idea of what the government does under the guise of protecting them.

So the debate over national security powers is always held under a veil of ignorance. Usually serious public policy discussion requires evidence. But when we’re talking about security those evidentiary standards go out the window. The best we get is hand-waving about terrorism and, now, Australian residents fighting in Syria. We’re told to take the government on trust.

Given that a basic principle of democracy is that governments must justify themselves to the citizenry, this is a problem. Terrorism is a real threat. But it is not a blank cheque for legislative change.

The democratic accountability problem is enhanced even further by the fact that – as the Edward Snowden leaks have demonstrated – Western governments have repeatedly lied about their national security actions and have kept hidden evidence of their own wrongdoing.

In his recent book, Secrets and Leaks: the Dilemma of State Secrecy, Princeton academic Rahul Sagar argues there are no easy ways to impose democratic accountability on the national security state.

Blind trust isn’t an option. Democracies cannot rely on blind trust. Unfortunately radical openness isn’t an option either. We don’t want the bad guys to know everything about ongoing enforcement operations.

Institutional accountability mechanisms – like parliamentary committees and independent watchdogs – are good, but they tend to be captured by the agencies they are overseeing.

Sagars conclusion is that the best we can hope is that whistleblowers expose wrongdoings.

When America’s mass surveillance program was first revealed by Snowden last year, the Obama administration instinctively responded the program was necessary to prevent terrorism.

Yet in December, 2013 the administration’s own advisory panel concluded that bulk mass surveillance “was not essential to preventing attacks” and traditional, targeted surveillance methods was sufficient. This panel was no naive civil libertarian whitewash. One member was even a former CIA deputy director.

A study by the New America Foundation – a bipartisan thinktank partly funded by the US government – concluded mass surveillance “has had no discernible impact on preventing acts of terrorism”.

Australia is one of the members of America’s Five Eyes surveillance coalition, alongside Canada, the United Kingdom and New Zealand. Unfortunately our governments have been no more honest than American administrations about the need for new security powers.

For instance, the government claims its national security bill is mostly just a long-overdue update of 1970s-era telecommunications interception law. But this argument would be more plausible if the Telecommunications (Interception and Access) Act 1979 had not been updated more than 50 separate times in the past two decades.

The bill is apparently the first of a series. Attorney-General George Brandis said last week a second tranche of reform will make it easier to prosecute Australians fighting overseas, and make it illegal to “promote” terrorism. OK. But it’s already illegal to “incite” terrorism. Is that not enough? Will the government explain, specifically, why changes are needed? Don’t hold your breath.

A third tranche is likely to introduce mandatory data retention. That policy would require internet service providers to record almost everything every Australian does on the internet, just in case law enforcement agencies – from anti-terror spies to competition regulators – decide, in the future, to have a look. Mandatory data retention is both expensive and repressive.

There will probably be a fourth tranche. Tony Abbott wants to be a tough-on-terror prime minister.

The Snowden revelations should teach us one thing. Now, more than ever, the burden of proof rests on those who say we must trade off our liberty and privacy for security. That burden has not been met.