Chris Berg – Page 44

Iraq Stands As A Warning Against Foreign Intervention

Ten years after the invasion of Iraq and you’d think the only issue was whether John Howard “lied”.

Howard, you might recall, happened to be prime minister of Australia (in Canberra) when the president of the United States (in Washington DC) decided to overthrow Saddam Hussein.

The idea that Howard had any control over George Bush’s decision is ludicrous – almost as ludicrous as the idea his government would decline to support Australia’s closest ally 18 months after September 11.

So this interminable debate – which intelligence officer said what to who about weapons of mass destruction – is an indulgent smokescreen. It’s being used to obscure the significance of the Iraq War.

Iraq was an intellectual crisis for both left and right. In 2002, the academic Samantha Power influentially described foreign genocide as a “problem from hell” – surely we are morally obliged to prevent it, but how? Her answer was liberal interventionism: a call from the left to use the US military to protect human rights around the globe.

This was not an obscure doctrine. Liberal interventionism was intellectually prominent when the Clinton administration was trying to deal with Kosovo and Rwanda. Power has become an adviser to Barack Obama and urged him to act on Libya.

Bush’s plans for Iraq were a dilemma for liberal interventionists. Power opposed the war, but reluctantly: in her view the ideas were sound, but the Bush administration had squandered too much international political capital to make it work. Others on the left were supportive – Tony Blair, for one. This interesting 2008 piece by Blair’s former chief of staff tries to keep the liberal interventionist case alive.

Neoconservatism was liberal interventionism’s right-wing relative. It was more messianic and more ambitious. Rather than merely stopping genocide as it occurred, neoconservatives thought America could prevent such crimes; the US could actively create liberty abroad. Think of Christopher Hitchens as a crossover between these two camps.

Both these philosophies of foreign policy rejected the amoral calculations of national interest that had led America to tolerate, even support, dictatorships.

There was even an open debate among libertarians at the time about the justness of military intervention to expand individual liberty and human rights. In retrospect that seems bizarre. Government small enough to drown in a bathtub but big enough to invade, liberate and rebuild faraway countries? For what it’s worth, I supported the war at the time. This was a mistake, but we’ve forgotten how live those debates were.

The claim that Bush – or Howard – went to war in Iraq simply because of weapons of mass destruction is complete historical revision. Rightly or wrongly, they saw it as a moral cause. Ba’athist Iraq was one of the worst tyrannies on the planet, and the Iraqi people some of the least free. In 2003, it seemed like something could be done about that.

The great cause collapsed for two reasons. The first was money. American house prices peaked two years after the invasion of Iraq. It was all downhill from there. The richest country in the world discovered that moral causes were out of its price range.

The second was more critical. The United States simply does not have the intellectual or administrative capacity to construct free and prosperous democracies out of ruins of tyranny and war. Nobody does.

“The curious task of economics,” said Friedrich Hayek, “is to demonstrate to men how little they really know about what they imagine they can design.” Hayek was talking about how hard it is to regulate an economy. Rebuilding a free country from ruins is much, much harder again. There is no evidence to suggest that the Coalition of the Willing, or the Department of Defense, or the White House, had thought in any great detail about the institutions that make a free and stable country.

Confusion set in from the start. The Coalition Provisional Authority took over the government of Iraq one month after American tanks entered Baghdad. But what actually was the CPA? Who was it responsible to? It wasn’t a sovereign nation. Was it a federal agency of the United States? Or a body of the United Nations? Was the CPA part of the US military’s chain of command or a civilian agency reporting to the Department of Defence? This damning 2005paper by the Congressional Research Service could come up with no clear answer.

That confusion wasn’t academic. Administrative arrangements matter, even in a war-zone. The worst decision made in the wake of the invasion was the disbanding of the Iraqi army, which threw hundreds of thousands of frustrated armed men out of work. That decision was made unilaterally by CPA chief Paul Bremer. It was apparently contrary to the pre-war planning. Yet if there was an authority that could have overrode Bremer, nobody was clear who it was.

So blaming all problems after the invasion onto a failure to adequately plan for reconstruction doesn’t really capture the problem. Rehabilitating entire countries is not just a question of careful planning. There is no check-box list or OECD best-practice guidelines.

Supporters of the Iraq war said the successful reconstitution of Japan and Germany show this formidable task can be done. But Japan and Germany are just two data-points in a long history of failed and unfree states. Why the confidence those successes could be easily replicated?

It was easy for neoconservatives and liberal interventionists to imagine great moral causes for the American military power. To lots of people, government looks like a perfect tool for problem-solving.

But in 2013, Iraq has some of the most endemic corruption on the planet: the Corruption Perception Index ranks it 169 out of 174. It has one of the lowest levels of economic freedom; it is one of the least free Arab nations, which also makes it one of the least free in the world. It’s 150 out of 179 on Reporters without Borders’ index of Press Freedom.

And 50 Iraqis were killed overnight in dozens of bombings and attacks. Iraq goes to the polls on Saturday. Fourteen election candidates have already been murdered.

Freedom House’s omnibus Freedom in the World index categorises Iraq simply as Not Free.

Saddam Hussein is dead, and that’s great. But Iraqis were promised more.

Conservatives Have Got Gay Marriage All Wrong

There was a weird moment in one episode of the ABC’s Kitchen Cabinet last year.

The host, Annabel Crabb, was being treated to a barbecue by shadow treasurer Joe Hockey. The conversation turned to Hockey’s view on gay marriage. He restated that he was opposed. Okay, fine. But then he admitted that it was probably inevitable: Australia will allow two people of the same gender to marry eventually, regardless of what he thought about it.

This is not how conservatism is supposed to work. William F Buckley famously (and sympathetically) described a conservative as someone who stood athwart history yelling “Stop!”

On gay marriage, the conservative mainstream is now just standing to the side, watching the world rush by, with a sort of hapless resignation.

It must be strange to know you are on the wrong side of history. And Hockey’s position seems to be a common one. It’s not a position that says gay marriage is inevitable yet subsequent events will prove it to be a mistake. No, it seems to be more that gay marriage is both inevitable and inconsequential.

Perhaps, as the great conservative philosopher Michael Oakeshott once wrote, change simply has to be suffered.

On gay marriage at least, social conservatism has suddenly shifted from being a political asset to a liability. This was most illustratively shown during the Senate confirmation of Chuck Hagel as Barack Obama’s secretary of defence in January.

In 1998, Hagel was a senator for Nebraska and on the other side the confirmation process. He criticised one Clinton ambassadorial candidate for being “openly, aggressively gay”. This little episode was dug up during Hagel’s confirmation this year as evidence that he was a secret bigot.

That’s fair enough. But Hagel’s contemporary critics have tried to pretend that such showy political homophobia was rare, when it was distressingly common until very recently. Clearly, elected politicians of the time believed making anti-gay statements was of political benefit. This is no longer the case.

The gay-marriage-is-inevitable line has swept through American conservative circles. Even Rush Limbaugh – possibly the world’s most famous shock jock – says conservatives will have to get used to the fact they have lost the debate. Many conservatives have gone further and actively embraced marriage reform.

The Australian right has been slower than its American counterparts. But it’s happening. Malcolm Turnbull now backs gay marriage. You’d probably expect that. Turnbull is a small l-liberal who enjoys swimming slightly out of the pack. But he had been coy about the whole thing for a very long time.

More interesting was the declaration of support earlier this month by Kelly O’Dwyer – Liberal member for Higgins, former Peter Costello staffer, and one of those recent parliamentary entrants who everybody says is leadership material.

It is hard to imagine there being any serious political cost to O’Dwyer’s position. Over half of self-identified Coalition voters support gay marriage. The South Australian Liberal Senator Simon Birmingham, who announced his support all the way back in November 2010, looks less like an outlier and more like a forerunner.

In a famous speech in 2011, David Cameron said he supported gay marriage not despite the fact that he is a conservative but because he is a conservative. That wasn’t just the cheap rhetoric of a politician. The conservative argument for marriage is compelling and convincing. A happy couple in marriage is an absolute good, individually and socially and financially.

The evidence suggests marriage offers specific, concrete benefits to those who pursue it. Extending it to same-sex couples should be a no-brainer.

And we shouldn’t pretend that traditional marriage is some unchanging, unbroken institution now under existential threat. Rush Limbaugh is wrong to say that conservatives have lost the argument because they have allowed the word marriage to be “bastardized and redefined”. Marriage has always been bastardised and redefined.

This important paper by the Australian writer Helen Dale for the American free market think tank Reason Foundation shows that human history has had many different ideas about the purpose of marriage.

One particular point is well made. Modern opponents of gay marriage claim that marriage has historically been about procreation. This sounds plausible, at least until you recall the extreme levels of infant mortality in past eras. As Dale writes, “children were by no means guaranteed”.

Most attempts to divine a universal core in the idea of marriage are unhistorical. So allowing same-sex couples to enjoy the benefits of this institution is less radical than it first seems.

Proper conservatism understands that tradition reflects deeper truths; that the social institutions we have inherited have proved their merits by their own survival. Monogamous marriage is one of those institutions. Age is a virtue, not a flaw.

This makes conservatives reluctant to embrace radical change. But in the rush to defend marriage strictly as it is, conservatives have forgotten what makes marriage so beneficial. Those benefits have nothing to do with gender. To actively support gay marriage – not to powerlessly regret it – is unambiguously the most conservative approach.

Sport And Betting Have Always Been Teammates

Victorian Greens senator Richard Di Natale has drafted a bill to ban betting odds being aired during sports broadcasts.

No, let’s rewrite that. Senator Di Natale has drafted a bill to kick Tom Waterhouse off the television.

Of course, Di Natale’s bill is no more likely to go anywhere than the other few dozen or so bills that have been introduced to the Parliament by minor parties. They are really just written for symbolic purposes.

And appropriately enough, in this case. Banning betting odds during broadcasts is the ultimate symbolic gesture – arbitrary feel-goodism masquerading as social policy.

The backlash against sports betting exposes the flimsy edifice that Australian culture has built around sport. On the one hand, we know sport is a multimillion-dollar corporate business where young and athletic men are split into groups, churned through training regimes, and paid to compete for our amusement. It is a vast money-making ecosystem.

Sport is like Hollywood, but much less risky: investors don’t have to worry about whether the creative types will come up with new and exciting stuff.

This industry is the world of Tom Waterhouse and government subsidies for stadiums and the Australian Crime Commission’s report into sports doping and the $1.2 billion the Seven Network and Foxtel paid for AFL television broadcast rights. It is a world where behaviour standards are written into player employment contracts to ”protect the brand”. People get rich, people get sacked, people get sued. In other words, sport is an industry like any other.

And that is all great. Industries are great. Yet onto this particular industry we impose a web of mythology and fantasy that tries to lift sport above a business to a quasi-religious undertaking. Nobody works themselves into a moral fervour about drug use in investment banking, or in motion pictures. But they do in sports. The sporting world is obsessed with honour and sportsmanship. And purity. It is no coincidence people keep calling for sporting codes to be “cleaned up”, or say a game was played “clean”.

The ideologists of sport proclaim it can bring communities together. In past eras – especially before the violent 20th century – they thought sport could replace warfare. These days, it is mostly about children and vague feelings of social cohesion. The federal government offers funding for a Multicultural Youth Sports Partnership Program. AFL clubs eagerly promote Harmony Day. It’s all very … romantic.

Yes, apparently there are still people who believe sport reduces social tension; people who are able to ignore the decades of violence and nationalistic politics that have swirled around domestic and international sport. And many of these romanticists appear to view the industry of sport with horror.

By now, everybody who is not a first-year arts student has come to terms with the fact that sport involves money. An older debate along these lines – about whether sport should remain amateur or go professional – looks very quaint from the vantage of the 21st century.

Sports betting is just the latest bogyman – yet another threat to that romantic vision. Yet betting on sport is as old as sport itself. One British sports historian, Wray Vamplew, says that much of the strict codification of the rules of sport in the 19th century was driven by the needs of gambling. Early punters found it hard to bet when the rules weren’t codified.

So the sudden panic about odds being broadcast on television is a bit precious – a triumph of the mythology of sport over the reality of sport. It is indicative that most critics of sports betting say they are not worried about the betting so much as seeing the odds on television. They don’t want to break the fantasy. They don’t want to see the revenue streams behind the curtain.

For the hyperbole and hand-wringing, sports betting is a tiny sliver of gambling in Australia.

The Queensland government keeps national gambling statistics. In 2009-10 (the latest year for which comparable figures are available), Australians spent a total of $18.5 billion on all gambling. This number includes everything from racetrack betting to pokies to TattsLotto. They only spent $303 million on sports betting – just over 1.5 per cent of the total.

Yet one academic proclaimed on The Conversation website last week that sports betting represented the steady ”gamblification” of everyday life – Tom Waterhouse is a sign that Australia is being buried by gambling.

The evidence suggests quite the opposite. Total expenditure on gambling has remained steady over the past decade. And if we take population growth into account, then in recent years gambling has begun to decline. Nothing here screams ”impending social problem”.

Instead, the Greens’ Richard Di Natale falls back on an old standard. ”It’s becoming increasingly hard for young kids to know where the sport ends and the gambling begins,” he said in a press release announcing his bill.

That’s the think-of-the-children argument, a favourite of censors, wowsers and reactionaries for two centuries.

It is fine to view sport through a romantic lens. But that lens won’t survive if it requires deliberate ignorance.

Everyone Promises Less Red Tape, But Very Few Succeed

It pays to be sceptical about the promises of oppositions.

Kevin Rudd said he would take a “meat-axe” to the bloated public service, and that the reckless spending would stop. In his 1996 campaign, John Howard promised to halve the regulation that was “enveloping small business” during his first three years of government.

Now Tony Abbott says his government will reduce “red tape” too.

Labor partisans like to bang on about whether the Coalition’s policies are “fully costed”. This is a traditional election ploy. Oppositions can’t win that game. They don’t have the policy development resources enjoyed by the incumbents, and errors can be devastating.

So more interesting are the big, bold statements about chopping down the bloated public service and reducing red tape. They’re obviously appealing. Who could support bloated bureaucracies? Who likes red tape? But they’re always light on specifics. And, in government, they’re never achieved.

It is these sorts of promises that oppositions need to be questioned about.

This is Tony Abbott’s exact promise, which appears in the Coalition’s November 2012 Deregulation Reform Discussion Paper:

The Coalition will reduce the regulatory and red tape burden for individuals, businesses and society as a whole by at least $1 billion a year.

That one billion dollar number is nonsense. (But the “at least” is a nice touch.)

There’s a rich academic literature on estimating the costs of regulation. The upshot? It’s very, very hard. And, more importantly, any estimate will be very, very debatable.

Part of the reason is that regulation imposes two different “costs”.

There’s the paper-burden cost – that is, the time spent filling out government forms, or the money spent on lawyers to make sure you’re compliant with the regulations, or the direct cost of license and application fees. This is usually what people mean when they talk about red tape.

But more significant are the costs imposed on the regulations themselves – that is, what the regulations are actually designed to do. The firms that aren’t started. The projects which never happen. The business decisions for regulatory compliance reasons rather than the efficient production of goods and services.

Paper-burden costs aren’t easy to estimate, but we have some strategies. We can survey managers about how long they spend on regulatory compliance, for instance. The answer will be wishy-washy and inexact, but at least it’s something.

Calculating the second types of costs is much more problematic. Businesses have many reasons they delay or cancel projects. Tony Abbott discovered this when he tried to blame BHP’s decision to shelve its Olympic Dam project on the carbon tax. Regulations are often a factor in cancelled projects, but try putting a dollar figure on it.

Ultimately, the Coalition’s one billion dollar promise is an illusion. It’s just a big, magical round number. There will be no way for voters to see whether they have achieved the promise or not.

Still, if our political parties want to reduce the regulatory burden, then they’ll need to do something.

The Coalition’s discussion paper offers up a few ideas. It proposes a couple of new bureaucratic requirements – cabinet submissions for new policies will have to include regulatory impact statements, for instance – and a system of audits and reviews. (Hopefully they recall John Howard’s regulation taskforce, which did as much good for deregulation as a wet sock.) The most interesting idea is two dedicated parliamentary sitting days every year for repealing existing legislation.

These clever little ideas miss the broader issue.

The greatest success at reducing regulation in recent history occurred in the Netherlands last decade. In 2003, a new Dutch Coalition government set itself 25 per cent reduction target in the paper-burden costs of regulation. Using a model of regulatory costs that they developed specially for the task, the Netherlands achieved that goal in 2007. (Here’s an OECD overview of the Dutch program.)

They did this in a number of ways, including setting up two new bureaucratic institutions – one inside the Ministry of Economic Affairs, and an independent advisory watchdog.

But most of all, the success of the Dutch experiment was driven by overwhelming political and institutional support from the Prime Minister on down. Regulatory reduction wasn’t just a throwaway election promise. It was a sustained, aggressive, and universal program. It had to be: the political backbone needed to be stronger than government’s natural inclination for increased regulation.

It’s trivially easy for politicians, especially in opposition, to talk in big broad strokes. There is too much regulation, in general. We’re spending too much, in general. There are too many public servants, in general.

But when it comes to actually reducing those unwanted things, it gets complicated very quickly. Particularly when a minister is confronted with specific, individual regulations, whose effectiveness is usually unknown, whose cost is debatable, and upon whom layers of special interests have come to rely.

If Tony Abbott’s Coalition government isn’t single-mindedly, obsessively, neurotically dedicated to lighting a regulatory bonfire, it simply won’t happen.

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.

Anything You Don’t Say May Be Used Against You

The first sentence of the press release announcing the New South Wales Government’s changes to the right to silence read: “The scales of justice will be tilted towards common sense.”

Yes, “common sense”.

We should be terrified when professional politicians start talking about common sense. Rights are always undermined by euphemism.

The O’Farrell Government’s right to silence changes passed the NSW Parliament last Thursday. From now on, NSW Police will qualify their standard police caution “you are not obliged to say or do anything unless you wish to do so” with this sentence: “But it may harm your defence if you do not mention when questioned something you later rely on in court.”

In other words, you’re welcome to stay silent, but you might regret it.

Juries will be allowed to “draw an unfavourable inference” from the fact that somebody decided to remain silent before a case got to court.

Courts have identified two parts of the right to silence. The first is your right to say nothing when being questioned by the police. The NSW reforms do not directly remove the right in this first sense.

The second part is the right not to have that silence used against you at trial. And it is this right that has been comprehensively trounced by the changes.

What good is a right if you are told you could well be punished for using it? The second part of the right to silence gives substance to the first part. It is disingenuous to suggest otherwise.

Most serious analyses of the right to silence are done by legal academics. Understandably, they focus on how judges and courts understand the right. So we get a lot of discussion about famous cases and High Court appeals and jury instructions.

But much of this misses the point. The Government has been transparent about what it believes the purpose of its reforms are – not to alter the way courts think about the right to silence, but how accused people think about it.

A police interrogation is presumably an uncomfortable occasion, whether you are guilty or innocent. When the facts of a case are unclear, the accusation is unclear, the accused may be confused, intimidated, and off-balance, the new standard police caution becomes little more than bullying. How are they supposed to know what they will later rely on in court? How specific will they have to be?

What was originally an unambiguous protection for people accused of a crime – if you are unsure of yourself or out of your depth, stay silent until you can fully consider your legal position – is now vague and imprecise and threatening. The fact that a lawyer must be present is no comfort.

This piece in the Conversation on Friday makes it clear how devilishly complex removing the right to silence can be. The NSW changes are based on a similar reform in the United Kingdom back in 1994. The new doctrine has become a “notorious minefield”, yet has had no effect on conviction rates.

The right to silence is one of the more unloved rights. It is being slowly written out of the legal canon.

The police don’t like it. One paper published in 2000 in the Australian Federal Police magazine argues that the development of the right to silence was simply “an over-reaction to tyranny”. That tyranny was the early modern English star chamber, which used torture to coerce suspects to talk.

But then again, there’s probably loads of evidentiary rules and accountability requirements that some police think get in the way of speedy convictions. That a legal protection is often used is no reason to get rid of it.

And politicians don’t like it. Obviously, elected officials adore a good law and order crackdown. The upside gains are huge. Nobody likes crime. The downside risks are tiny. Civil libertarianism doesn’t swing elections. Even federal politicians are desperate to get in on the action. Julia Gillard told Western Sydney she wants to fight gangs. Tony Abbott wants to roll out CCTV surveillance.

The push against the right to silence isn’t limited to criminal procedure. There were no less than eight pieces of legislation passed in the Commonwealth Parliament last year that limited this crucial right. (I wrote about one of those – an anti-illegal immigrant bill – on the Drum in September.)

Earlier this month, the NSW Attorney-General Greg Smith said that the changes would make trials “more efficient”.

What a horrible thought. The entire English criminal system is designed to make it hard to convict someone. What Greg Smith calls inefficiency is better called protection of the innocent.

Beware Elite Technocrats And Their Open Disdain For Democracy

The draft of the proposed European Union constitution in 2003 included this quote, from ancient Greek historian Thucydides: “Our constitution … is called a democracy because power is in the hands not of a minority but of the greatest number.”

That quote didn’t make the final version of the constitution (which was rejected in 2005). A good thing too. It would have been cruelly ironic. The European Union is the exact opposite of Thucydides’ ideal.

Modern Europe shows just what happens when societies grant extraordinary power to elites and technocratic experts. Europe’s slow-burn sovereign debt crisis is exposing a massive chasm between the elite who run the European Union’s political and economic institutions, and the European citizens who have to live with their decisions.

Last weekend, citizens of Cyprus learnt all their bank accounts were going to be subject to a one-time tax of at least 6.7 per cent in return for an economic bailout.

The deal was presented as a fait accompli, negotiated between a new Cyprus president (he’d only been in the job a few weeks) and a bevy of banking officials and European bureaucrats. Approval by the Cypriot Parliament was to be a mere formality. It had all been decided.

But the bailout deal fell apart last week in the face of a massive popular backlash. People in Cyprus are like people all over the world. They don’t like it when the government steals their money without warning. One of the chants heard outside the Parliament was: “They’re drinking our blood.”

It has long been understood that the European Union has a democratic deficit. But that deficit is cripplingly obvious now that the continent is deep in economic crisis.

Indeed, much of the original idea for the European Union itself was fundamentally anti-democratic. After World War II, European statesmen worried that voters were too easily manipulated. This was a reasonable feeling at the time; Adolf Hitler did very well at the ballot box.

So the structure of European governance was explicitly designed to be full of unelected positions, as far removed from actual voters as possible. But operating out of sterile tower blocks in Brussels, Eurocrats have developed an active disdain for democracy.

As the president of the European Commission, Jose Manuel Barroso, has said: “Decisions taken by the most democratic institutions in the world are very often wrong.”

Of course, nobody has suggested otherwise – but so what? The choice isn’t between making the right decisions or wrong decisions. It’s whether the citizens run the government or a cadre of elites do.

Anyway, the most tragic mistake made by Europe in recent decades wasn’t a national one. It was the euro currency – narrowly pushed through a series of referendums in 1992.

The euro has trapped 17 countries together in a spiral of doom. Some will survive the landing. Rich and prosperous states such as Germany will be fine. Others, such as Cyprus, Italy and Greece, have learnt that by joining the eurozone they’ve handed over their sovereignty to Brussels and their economic policy to Frankfurt.

And when the global financial crisis hit, these latter countries discovered that European authorities held extraordinary power over them.

In 2011, Greek prime minister George Papandreou proposed a referendum on a bailout package his country had been offered. He was quickly forced to step down and replaced by a former president of the European Central Bank; in other words, a European bureaucrat from central casting. According to British politician Daniel Hannan, this was nothing less than a coup d’etat. Recall that Greece is the cradle of democracy.

Of course, it was always obviously absurd that such economically disparate countries would be able to share a currency. The euro was condemned from left to right. Both Milton Friedman and Paul Krugman were vehemently opposed. But whether it would work wasn’t the point. There has always been a belief in Brussels that European integration is the most important political goal imaginable. European integration is an ideological project pretending to be an inevitability. Few can be more ideological than technocrats.

You can understand why people think handing power over to experts and political elites sounds appealing. We tend to talk about public policy as if it is merely a question of matching a problem to its best solution – the only challenge is finding that solution.

You hear such sentiments in the business community all the time. If only we could get politicians out of the way and just get things done.

That’s the theory behind all these supposedly independent government agencies we have in Australia.

But if you want to see what happens when you hand too much political power to experts, have a look at Europe. It’s not pretty.

Media Reform And A Missed Opportunity

Has Stephen Conroy forgotten why he began this media debate?

It wasn’t because of the phone hacking scandal in the United Kingdom. Nor was it Bob Brown describing News Limited papers as the “hate media”.

And it certainly wasn’t any discernible community unhappiness about the Australian Press Council. (Media Watch might be obsessed with newspaper codes of ethics but please try to remember that Media Watch is not a representative sample of the population.)

No, none of that. In 2010, Conroy launched an inquiry that the communications and media sector had long been desperate for – the Convergence Review.

This review was meant to take a holistic look at the way the technological change was undermining the regulations that govern media, telecommunications, and broadcasting. It was quite an undertaking. We’ve more than a century of built-up regulatory frameworks which limit what media we can enjoy and the circumstances in which we can enjoy it. It is universally agreed these frameworks are out of date and counter-productive. I covered some of the issues in the Drum in 2011.

Indeed, the Convergence Review was everything the Howard government’s 2006 media reform changes should have been. It was forward-thinking and technologically aware – rare qualities for government inquiries. Politicians like to talk about future-proofing but they’re always focused on the politics of the day.

(There was a smaller, now-forgotten review into converging media back in the days of Richard Alston. Nothing came of it. The government was mired in the grubby politics of the switch to digital television broadcasting.)

Sixty-nine separate organisations, from Skype to Blind Citizens Australia, gave submissions on the Convergence Review’s draft terms of reference alone.

The review released five comprehensive discussion papers and one interim report. There were hundreds of submissions along the way. There were public hearings in eight cities. The final report, published in March 2012, was 200 pages long.

I don’t want to be too complimentary. That final report had many problems. It had been given an impossible task. The Convergence Review had to a) radically overhaul the current regulatory framework to meet future challenges, and b) please all beneficiaries of the existing system. These two demands conflict. And then it tried to shoehorn itself into the debate about newspaper standards, exceeding its mandate and undermining its broader purpose.

Nevertheless, from a purely public policy perspective, dealing with the winds of change brought about by technological innovation was the main game. It still is.

We have to be much less generous about the Independent Inquiry into Media and Media Regulation, known as the Finkelstein Review. The end result – a 400-page report that traversed history, sociology, political science, psychology and media studies at a barely-undergraduate level – was in equal parts patronising and authoritarian. It recommended extraordinary government regulation of the free press.

Still, very little of all that effort comes out in the final media reform proposals. Last Tuesday Stephen Conroy supposedly announced his response to the Convergence Review and the Finkelstein review.

The Government wants a new Public Interest Media Advocate to regulate newspaper standards bodies (like the Australian Press Council) and to impose a public interest test on media mergers. He also wants to legislate a permanent cut in broadcasting licences, marginally increase Australian content requirements, and to tinker with the ABC’s charter.

Conroy says we’ve spent the last few years debating media regulation but these proposals are entirely new.

There’s no “Public Interest Media Advocate” in either the Convergence or Finkelstein review.

Admittedly, the idea of a “public interest test” did appear in the Convergence Review. But it was a tiny sliver of a much broader proposal to rationalise media regulation across all platforms. To rip three words out of the Convergence Review is to miss the point entirely. The purpose of the public interest test, as conceived in Convergence Review, is to completely remove “the old platform-specific media ownership rules”. Conroy doesn’t plan to do anything of the sort.

The Government has offered nothing – absolutely nothing – to deal with the issues raised by technological change.

For its part, the Finkelstein report inadvertently showed how far the media policy debate had moved from media reality.

The final Finkelstein report was released in March 2012. It had two jobs. The first was to investigate standards and media codes of practice. This received all the attention. But its second job was to look at technological change and how that affects media business models. Here’s an exact quote from the final report:

major newspaper publishers confidently presented a positive assessment of their future prospects.

Of course, just over three months later Fairfax media announced one of the single biggest restructurings in Australian media history, shedding nearly 2,000 staff. News Limited cut staff as well. Finkelstein was released in March. By June it was an anachronism.

And now we’re here. Conroy’s proposed Public Interest Media Advocate has serious freedom of the press problems. Those have been well-canvassed over the last week.

But of greater long-term importance is how a much-needed investigation into regulation and technological change turned into little more than a platform for politicians to express their feelings about Rupert Murdoch.

And what on earth is the use of that? All this sound and fury could achieve is just an extended exercise in political gamesmanship.

Another wildly missed opportunity. Another government distracted from necessary reform in the pursuit of its political agenda.

Opening statement to Commonwealth Environment and Communications Legislation Committee inquiry into the News Media Reform Package 2013

With Simon Breheny

The news media reform package 2013 is nothing less than an attack on freedom of speech and freedom of the press in Australia. It is absurd to claim that the government could institute a regulator to regulate media self-regulators like the Australian Press Council and pretend that doing so would not constitute substantial new government oversight of the free press. This is a fundamental conceptual error with very disturbing consequences and, in our view, government oversight of the press is unacceptable in a liberal democracy. The government has no business deciding what constitutes fairness or balance in a media whose job it is to hold them to account. That ought to be a bedrock principle accepted by all sides of political debate.

We have a number of specific points we would like to raise about the proposed public interest media advocate. The government-appointed PIMA would be responsible for deciding which news media self-regulation bodies’ members would receive an exemption from the Privacy Act and which would not. This regime means that news outlets will never be able to write about things that are claimed to be personal or sensitive. The news-gathering functions of a news media organisation would be shackled for fear of breaching the Privacy Act. To us, the coupling of Privacy Act exemptions with regulated membership clearly makes this a de facto licensing system, further emphasising the significance of the attack on free expression that the proposal represents.

The minister can directly and unilaterally appoint any person to the public interest media advocate role. Government members of this committee might reflect about whom a future government could appoint and whether instilling such significant powers over the press on a political appointee is democratically desirable. This is doubly so because of the entirely undefined concept of public interest that this entire project seems to be founded on. I am sure that our idea of what is in the public interest is different to the ideas of some members of the committee.

The proposed regime also undermines fundamental legal rights. The bills provide no avenue for appeal of a decision of the PIMA, they reverse the burden of proof in cases of proposed media mergers and they use ambiguous terms that give the PIMA enormous discretionary power.

The most disappointing part of this process is how the government has completely shirked the necessary reform to regulatory frameworks governing media and communications. There is almost nothing in these bills that deals with the serious and important problems in media regulation brought about by technological convergence. Instead, the process seems to have been entirely diverted by a partisan battle between one side of politics and one media company.

We have one final, broader concern. Chris Berg and I appeared before another Senate inquiry into another bill less than two months ago, on 23 January 2013, to defend freedom of speech against another real threat posed by legislation that this government proposed. That bill was the draft Human Rights and Anti-discrimination Bill 2012. Both pieces of legislation seek to shrink civil society by restricting free speech, one under the guise of human rights and the other under the guise of fairness and accuracy in the media. For these reasons, it is our view that the bills should be rejected.

Tea Party Paul’s Stand For Civil Liberties

Rand Paul’s epic filibuster in the United States Senate last week wasn’t just an important moment in the debate over executive power and drone warfare. It’s an important moment in the history of the Tea Party, even the conservative movement.

Paul’s Tea Party credentials are impeccable. He wrote a book in 2011, The Tea Party Goes to Washington. The 54-member Tea Party Caucus – a congressional organisation for like-minded Tea-partiers – was apparently his idea. He gave the Tea Party’s response to Barack Obama’s latest State of the Union.

Our ideas of the Tea Party are pretty entrenched. Either you think that the Tea Party is a white, racist, gun-toting, revolt of the middle class, or… well… in Australia it’s not clear there is an alternative view.

The international press has been hopeless on the significance of the Tea Party. The same media outlets that romanticised the Occupy movement stereotyped and dismissed the Tea Party as some arch-conservative uprising.

So it’s a big deal that Tea Party Paul made international headlines by standing up to the Obama administration on a distinctly civil liberties issue.

Paul used the confirmation of John Brennan for Central Intelligence Agency director to demand a full explanation of the legal basis for using drones to kill citizens and non-combatants.

The complete transcript is here, if you feel like reading a lazy 68,000 words, but this Guardian piece has some of the highlights.

The most memorable hypothetical in his 13-hour filibuster was this: under the administration’s drone policy, Barack Obama could order that American citizens “be killed in a café in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky.”

Supporters of Obama have been quick to say this is an absurd scenario – there’s no way the president would do anything of the sort.

But Paul’s point was not that the hypothetical was likely, but that the administration does not appear to believe there is any legal impediment to sending a Hellfire missile into a San Francisco café.

Constitutional government should have strict limits on what it can and cannot do. Citizens shouldn’t have to count on their president being a good guy.

To see just how many people have wilfully missed Paul’s point, check out this self-satisfied “fact-check”, which has determined that the hypothetical is “False” but admits the White House hasn’t strictly ruled out that it has such power.

And the only reason this debate has been rekindled is because a Tea Party senator made a symbolic 13-hour stand.

The next day the Attorney General Eric Holder sent this sharp letter to Paul, saying the president does not have the authority to kill an American not engaged in combat on American soil. Paul quickly claimed victory. But Holder’s reply is more ambiguous than it first appears. And it doesn’t tackle the broader issue: there are few statutory checks on the drone program. Drones are the iconic example of the growth of executive power in the Obama age.

At the Atlantic, Conor Friedersdorf has an interesting piece about how the mainstream press got Rand Paul wrong from the start. They obsessed about his views on the 50-year-old Civil Rights Act while ignoring his civil libertarianism and foreign policy.

Compare Paul to the so-called “moderate” Republicans – those who stand against the wild-eyed Tea Party radicals holding the nation to ransom.

The doyen of moderation, John McCain, said Paul’s filibuster was merely a “stunt”. Lindsey Graham, another storied moderate in the Senate, addressed his colleagues mournfully: “to my party, I’m a bit disappointed that you no longer apparently think we’re at war.”

Graham later said Rand’s filibuster had persuaded him to support Brennan, as it had “become a referendum on the drone program”.

Yes, those moderates who are so admired in the Australian press used dissent against Obama’s war powers as a reason to support them. Just as a few years ago those moderates supported George W Bush’s extraordinary spending spree, foreign policy adventurism, and trouncing of civil liberties.

Yet we’re told it is the Tea Party which is dangerous.

Paul is not a prince of libertarian purity, by any means. He’s both more conservative and more mainstream than his father, Ron Paul. Nor is the Tea Party ideologically pure – it is part conservative and part libertarian.

Still, the rush of support from other congressional Republicans for Paul’s unambiguous stand on civil liberties is significant. He was even praised by the usually pro-war Rush Limbaugh for defending “the freedom and liberty of the people of the United States”. Limbaugh went on to mock John McCain.

Like everything that happens in politics we could dismiss this as partisan opportunism.

But since the Tea Party burst onto the scene to reject the bank bailouts, it has threatened a more general outbreak of libertarianism within the GOP.

Every Republican now believes Federal spending needs to be cut. Big government conservatism is completely discredited. That is in no small part because of the Tea Party. It’s easy to forget that more government spending at home was as much a part of the neo-conservative agenda as foreign interventionism was. Remember “compassionate conservatism”?

We know there is a Republican constituency for civil liberties and limiting executive power, even after a decade of anti-terror abuses. There were some promising hints of foreign policy modesty during the last Republican primary campaign. Rand Paul’s filibuster is an important moment. Let’s hope it is also a turning point too.