Chris Berg – Page 65

The Expansion Of Presidential Power

In the United States, many thought Barack Obama’s election would be the moment the rule of law reasserted itself in the fight against jihadi terrorism.

After all, that’s what he promised – ending the use of torture and extreme rendition, revising the Patriot Act, closing down Guantanamo Bay detention camp, eliminating warrantless wiretaps, and restoring the right of prisoners to challenge their detention.

So the debate whether the Obama administration has the legal authority to assassinate an American citizen without any due process is pretty unedifying.

The citizen in question is Anwar al-Awlaki, a radical Muslim cleric. He’s probably holed up in Yemen. In April, the administration authorised his assassination.

Now his father is suing the government to prevent the government doing so. In response, the administration asked the court to dismiss the lawsuit because it involves state secrets.

There’s no doubt al-Awlaki is a bad guy. He’s reportedly called for American Muslims to wage violent jihad against the US. His sermons have been attended by an array of accused and convicted terrorists. He’s apparently the inspiration for the Times Square bomber and the Christmas Day bomber. The US government now claims he’s gone from encouraging terrorist attacks to actively participating in them.

American governments have long had the power to assassinate those waging war against the United States.

Yet assassinating a US citizen goes well beyond anything previous administrations have ever been able to do. A senior Bush legal official told the New York Times he couldn’t recall any similar case.

And, Barack Obama – or, at least, Barack Obama’s lawyers – believe the president has an absolute right to do so without limitation and without scrutiny.

As the legal commentator Glenn Greenwald wrote, the Obama administration seems to believe that “not only does the president have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are ‘state secrets,’ and thus no court may adjudicate their legality.”

One could make the case al-Awlaki has so abrogated his American citizenship he is effectively a foreigner, and that his threat to the US is so substantial they have no choice but to assassinate him. But that’s a case they should make to a court. Instead, the administration believes the government shouldn’t have to justify targeting the cleric.

This argument proposes the US president be given absolutely unlimited powers.

No matter how hawkish you are on the war on terror, that’s a bad idea.

In her 2008 book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, Jane Mayer laid out how the administration of George W. Bush fumbled its way into its security framework.

Guantanamo Bay, the renditions, the blurring of legal and illegal torture, and the augmenting of the president’s war powers were a result of panic after September 11 attacks and an escalating security machismo within the White House.

The urgency meant it took less than 12 months for these policies to be fixed in place.

That’s not an excuse for the Bush administration blundering – and there was a lot of blundering while the administration tried to reform criminal processes to fight a war against terrorists. And it’s no excuse for their utter disregard of due process, civil liberties, and individual rights. But it is an explanation.

By contrast, it is nearly incomprehensible that, a decade after the September 11 attacks, those powers are still expanding rather than contracting.

Certainly, terrorism remains a national security problem in the US and around the world. Recent warnings about threats in Europe and India remind us of that. But the direct political pressure over terror has been relieved – partially due to the global financial crisis, which displaced public fear of the risk of attack with a much more real fear of unemployment.

And many of the tactics deployed after 2001 have been, in retrospect, dismal failures.

The effort to prosecute accused terrorists through military commissions rather than the civilian legal system has been decidedly uninspiring: those who could have been jailed for life had they faced the full gamut of civilian charges have received peculiarly light sentences.

The recent expansion of presidential power is made worse by the fact that Obama specifically campaigned against legal abuses in the conduct of the war on terror.

This brazenness is unlikely to hurt the president. Many in the American left have been reluctant – even embarrassed – to admit Obama has doubled down on some of the most reviled policies of the Bush administration. Those who do point out a Palin administration would be far worse.

And conservatives are more eager to criticise Obama for being too soft on terrorism than being unprecedentedly bold.

In his new book Obama’s Wars, Bob Woodward quotes the president claiming the US could “absorb” another terrorist attack. This has been described as a gaffe. And, from a political perspective, it is. But it’s also an uncommonly honest reflection of the nature of the terrorist threat.

If only that moderation was translated into policy.

Silenced In Court

Andrew Bolt is getting sued. Don’t applaud yet. There’s been a lot of outrage about the federal government’s proposed internet filter. But lawsuits like the one now faced by the prominent conservative Herald Sun columnist are as much a restriction on freedom of speech as anything Communications Minister Stephen Conroy has come up with.

Nine people are suing Bolt for an article that claimed their Aboriginal self-identification was “fashionable”. He had said they all had part-European, part-indigenous heritage (and fair skin) with an opportunity to describe themselves as a range of nationalities. But, he wrote, they chose to describe themselves as Aboriginal. Doing so gave them “political and career clout”.

At worst, Bolt is deliberately and provocatively disrespectful.

But as their lawyer has pointed out, there are two tests of whether someone is Aboriginal. The first is an objective genealogical test: a fairly clear cut question of whether they have Aboriginal ancestors. The second is subjective: whether a person chooses to self-identify as indigenous, and whether they are “communally” regarded as such.

Bolt’s columns criticised political appointments and government awards that pivot on an individual’s Aboriginality. They’re absolutely within their rights to apply for those grants, prizes and positions. But like it or not, by sponsoring things like indigenous-specific art and literary awards, the government makes what constitutes Aboriginality a political question.

And it’s a question academics have been trying to unpack for decades. Universities teach courses in the “concept of Aboriginality”. Surveying the literature in 2002, the Parliamentary Library could only conclude “an individual’s ethnic identity is always to some degree fluid, multiple, differing in degrees, and constructed”.

Of course, Bolt tackles the issue with trademark belligerence. The merits of his argument will now be tested in court. But put aside the conservative commentator. This isn’t about the collected works and opinions of Andrew Bolt. And put aside the complexities of racial identity, Aboriginality and reconciliation.

This case is troubling because of what it says about our right to freedom of speech. If successful – or just really expensive to defend – this lawsuit could have a stifling effect on political debate.

The 19th century philosopher John Stuart Mill argued that only by airing contested views publicly and freely could the truth be known. Societies need free speech if only to test and challenge controversial opinions.

And we’re not going to have those necessary debates while legal action stifles one side. No matter how wrong or misguided that side may be.

Silencing Bolt doesn’t just silence him. It potentially silences the speech of others who might be afraid of being similarly dragged through the legal system.

After all, Bolt and his employer can afford to defend themselves. No doubt they have lawyers on call. Newspapers know their way around court.

By contrast, bloggers, amateur journalists, Twitterers and Facebookers commenting on sensitive political issues – for whatever reason, with whatever motives – are much more exposed to punitive legal action than newspaper columnists are.

Should only the rich be able to have controversial views? If anything is going to suffocate the blossoming citizen media, it will be lawyers.

Bolt is being challenged under the federal government’s Racial Discrimination Act. But that’s hardly the only law on the books that has a damaging impact on free speech. Our politicians have a long and shameful history of using Australia’s defamation laws to sue their critics – threatening someone with a defamation suit is a public relations tactic.

In Victoria, our Racial and Religious Tolerance Act, introduced in 2001, has been co-opted as a stick for religious groups to hit each other.

First, the Islamic Council of Victoria took the fundamentalist Christian Catch the Fire Ministries to court. Then a Wiccan prison inmate took the Salvation Army to court. Then the Australia-Israel Jewish Affairs Council threatened to take the Islamic Information and Services Network of Australasia to court.

That’s a shabby record for a law supposed to promote tolerance, not division.

Suppressing offensive views can be counterproductive. The churches and mosques targeted by the Victorian Racial and Religious Tolerance Act were able to say their beliefs were being persecuted – attracting more followers. The victimised dissident is a hero, not a villain.

To his credit, Bolt is a prominent critic of Victoria’s vilification laws. Last year, the Human Rights Consultation Committee faced the task of recommending what should appear in an Australian bill of rights. It struggled to balance our right to free speech with a new “right” demanded by some – the right to not be offended by the speech of others.

But there are an infinite number of ways people could be offended. How could we possibly prevent all outrage?

You can have the right to free speech, or you can have the right to be protected by the government from the offensive speech of others. You can’t have both.

There are other ways to respond to distasteful views.

Refuse to buy the Herald Sun. Tell your friends to do the same. Condemn it in other opinion columns. The solution to bad speech is more speech. If something is offensive, it deserves to be condemned, loudly and often.

This week saw the first Aboriginal member of the federal House of Representatives sit in Parliament. Ken Wyatt is a Liberal. He promised to advocate for Aboriginal and Torres Strait Islander people in Parliament. His mother was one of the stolen generations. In his maiden speech, Wyatt thanked Kevin Rudd for the 2008 apology.

That’s a genuine step towards reconciliation. Wielding the legal system as a weapon to try to silence critics isn’t – no matter how offensive they might be.

Carbon Price Makes No Policy Sense

Gillard will need a big policy win this term. Even better if it’s a win on the policy that sank her predecessor.

So it was hardly surprising that the call by Marius Kloppers of BHP Billiton for a carbon tax was quickly affirmed by the new climate minister Greg Combet.

Julia Gillard announced the makeup of the oddly secretive climate change committee yesterday. She’s getting all her ducks in a row for a price on carbon of some description.

But domestic politics isn’t the main climate game. International politics is. And right now, the prospects for a global agreement on climate change couldn’t be lower.

Diplomats are pouring as much cold water as they can on hopes for securing an agreement in Cancun in December. “The likelihood of a continued deadlock remains significant”, said the director of the UN Framework Convention on Climate Change last week. George Monbiot wrote in The Guardian, “The closer it comes, the worse it looks.”

You don’t have to be a climate change sceptic, denier, pessimist, realist, optimist or scientist to recognise dealing with real or potential consequences of greenhouse gas emissions is the ultimate collective action problem.

As it’s a problem of collective action, it makes little sense for countries to “go it alone” – particularly nations like Australia, who would easily see their carbon emissions move to jurisdictions which aren’t playing along.

The government implicitly agrees. It’s why we have two proposed emissions reduction targets – an unconditional 5 per cent for now, and 15-25 per cent if there is a binding global agreement to do so. The difference between these two targets is an admission that reduction is substantially less meaningful without international action.

Treasury agrees too. Their modelling of the Rudd government’s Carbon Pollution Reduction Scheme in October 2008 assumed all countries around the world would implement the same scheme at the same time.

There’s a precedent for international policy action: the sixty year long quest for multilateral free trade agreements. Like emissions reduction, trade has been the subject of numerous international conferences and diplomacy.

But unlike emissions reduction, free trade is unambiguously in the self-interest of every nation. This is true even if other nations do not open their markets. In a world of high tariffs and subsidies, a country which unilaterally lowers trade barriers – as Australia did – is still better off.

Despite this, the fight for freer trade through global agreements is excruciatingly slow and now seems to be stagnating.

Those failures say nothing of the worthiness of the free trade project. Just that international politics is an ineffective and frustrating mechanism to pursue policy goals.

That’s not a good omen for a global treaty on emissions reduction, where countries can benefit by avoiding their emissions reduction obligations. Unlike free trade, it’s in their self-interest to cheat.

Recognising that is not being a sceptic about climate science, but a realist about politics.

Certainly, many countries are doing little bits of climate change mitigation here and there. We’ve had a national Mandatory Renewable Energy Target for nearly a decade now, and countless subsidies and programs.

We’re hardly alone. Even China is talking about imposing a domestic carbon trading scheme. And on Friday last week, a senior Chinese climate negotiator declared his country would seek a binding climate treaty by the end of next year.

Sounds definitive, but there’s more to that declaration than a headline may suggest. The Chinese blame the Americans for wrecking Copenhagen: “The biggest obstacle comes from the United States”, according to their negotiator. But after China’s calculated theatrics at the Copenhagen summit, it’s hard to take them at their word. Chinese statecraft is increasingly cantankerous and contrarian. Big statements have to be seen through that prism.

Yes, China is cleaning up its coal-fired power stations – as they should – but their average efficiency is still well below those in the developed world.

And the country has generous subsidies for renewable energy. There’s more to those than the headlines suggest too: a report in the South China Morning Post last week pointed out they badly underperform. Wind turbines turn for an average of 75 days a year, compared to 110 days in England. Few wind turbines and solar plants are even connected to the electricity grid.

In Australia, the Green Loans scheme was exploited by opportunists looking to make a subsidised buck, with negligible environmental benefit. In China, those green subsidies are much larger, in a much larger country, and embedded in a much more corrupt and opaque political system.

Yet as business writers keep pointing out, China has an “advantage” in the climate game. It’s a dictatorship. It only has to justify its policies so far.

The rest of the world will be even harder.

The International Energy Agency said last week energy poverty in the developing world is a big reason it doesn’t look like we’re going to achieve the Millennium Development Goals.

1.4 billion people lack access to energy. Most of those are concentrated in Africa and on the Indian subcontinent. The health and wellbeing consequences are substantial. Those nations – 1 billion people in Africa, 1.1 billion in India – will be unlikely to go along with any policy that would restrain development. When you live below the poverty line, a ‘small’ price on carbon is not trivial.

China’s public relations blitz notwithstanding, the chances of a binding and meaningful agreement have diminished since Copenhagen, not increased. The European Union’s climate action commissioner Connie Hedegaard said last month “These negotiations have if anything gone backwards.”

The Stern Review said “no country can take effective action to control the risks that they face alone”.

And it’s now clear we can’t rely on international action.

It makes political sense for Gillard to jump into a comprehensive carbon price this term. But it still it makes little policy sense.

Bankrolling Oprah: The New Tourist Strategy

Fifty per cent of all advertising is wasted, says the marketing cliché. The problem is figuring out which fifty per cent.

Last week we had a rare burst of honesty about the usefulness of the money governments spend on high profile tourism campaigns. The former Tourism Minister John Brown admitted, “We spent hundreds of millions of dollars over 30 years without much effect, I must say that honestly.”

Brown was a minister in the Hawke government when he commissioned and oversaw the famous Paul Hogan “Throw another shrimp on the barbie” ads during the 1980s. That Hogan campaign is constantly held up as the greatest success story of Australian tourism. It’s the yardstick by which all other campaigns are measured.

So his admission it’s all been an enormous waste of cash is unlikely to feature prominently in Tourism Australia’s next annual report.

Brown was helping announce Oprah’s visit to Australia. Her visit is being heavily subsidised by Australian taxpayers: Queensland is chipping in $400,000, New South Wales between $1 and $2 million, and the federal government $1.5 million.

Oprah is personally worth an estimated US$2.5 billion, so clearly she doesn’t need the money.

But Brown doesn’t want us to be “cynical about the cost”. The current tourism minister, Martin Ferguson, is sure it is “money well spent”.

Special Oprah-in-Australia episodes will go to air next January alongside Tourism Australia’s G’Day USA campaign. And, the government hopes, American dollars will flood in.

Maybe millions for Oprah will succeed after millions for “Where the bloody hell are you?”, the Baz Lurhmann Australia tie-in campaign, and 2004’s “Australia: A Different Light” with Delta Goodrem and Richie Benaud, failed.

The Oprah effect can turn a book into a bestseller just by being featured on her program. Our tourism bureaucrats are hoping that scales to continents.

But I don’t want to dwell too much on the specifics of the Oprah visit.

The federal government’s thinking about tourism has always been woolly. Tourism promotion has been a swamp in to which the government has poured cash and consultants for decades.

In Crikey in June, Noel Turnbull pointed out the government is running two simultaneous marketing campaigns, with contradictory messages. The first is a branding campaign which suggests there’s more to Australia than people think. The second is a tourism campaign which suggests there isn’t; that we’re all about glossy surfaces and pretty landscapes.

One wonders how many marketing and public relations consultants are going to feed on the Oprah campaign.

But why are governments doing tourist promotion at all?

The overwhelming beneficiaries of tourism dollars are private industry: hotels, restaurants, transport, souvenir shops, pubs, cafes, barbecue manufacturers and shrimp farms. Tourism promotion does their marketing for them – the government spends millions of dollars trying find customers.

Certainly, the government gains a small amount of money from the GST levied on things tourists might buy. But the same holds true for all Australian industries selling products to Australian nationals – the government gains a little from every sale. So such logic would suggest the entire advertising industry should be subsidised by government.

If the benefits of promotion are so enormous, the tourism industry should be paying for it themselves. There’s no reason they can’t band together in another of their many peak bodies to sponsor international marketing campaigns. Let industry discover which half of advertising works and which half doesn’t.

Government policies designed to promote tourism almost always end in disappointment, as John Brown recognised.

But we don’t only push out ads. We also spend vast sums on events to try to lure in overseas crowds.

The major events strategies of Commonwealth and state governments are predicated on a belief that big sporting contests translate into big touristy payoffs.

This month is the 10th anniversary of the Sydney Olympics. We ran a good event. But we got a bad Olympic hangover. Visitor numbers to New South Wales actually declined relative to other Australian states. It’s not our fault: Beijing and Athens had the Olympic hangover too.

The Sydney Olympics was a bigger deal than Oprah’s tour ever could be. We earned a great deal of international goodwill and publicity in those few weeks in 2000. But tourism went backwards.

In Victoria, the Grand Prix – the pride and joy of the Victorian tourism lobby – isn’t even paying for itself anymore. It posted a $49.2 million loss this year, and was promptly bailed out by the state government.

Here’s hoping Australia doesn’t win the privilege of hosting the World Cup.

There’s good reason to be sceptical that Oprah is the tourism spend to buck the trend. The former tourism minister may be optimistic about Oprah’s visit but history tells us we shouldn’t be.

Savaging a popular policy a tricky task for Turnbull

Malcolm Turnbull’s elevation to the shadow communications portfolio may be just what the debate over the national broadband network needs. It could be just what the Liberal Party needs, too. But Turnbull has a hell of a job: to persuade the electorate that a gigantic, government-subsidised gift of a super-fast internet is a bad idea. An Essential Report poll late last year found 65 per cent of Australians thought it was important the NBN was built. Sixty per cent of Coalition supporters did, too. As a general rule, Australians like free stuff even if eventually they have to pay for it through tax.

Both the government and the opposition have lined up their new portfolios in time for the next sitting of Parliament.

The election is over and Lab or wants change, not continuity. Julia Gillard has tried to eliminate all traces of the embarrassing Kevin Rudd era.

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On the other side, the Coalition did astonishingly well at the election. So, Tony Abbott’s thinking goes, why fix what’s working? Turnbull’s move to communications is the only significant change.

The Coalition’s broadband message was an unmitigated disaster during the election – the biggest problem with an otherwise robust campaign.

It’s possible that Abbott is laying a cunning trap for his rival. From now on, the debate over the broadband is going to be intimately linked with Liberal Party leadership questions. And who would want to be saddled with the job of opposing one of Labor’s most popular policies?

But Abbott needs Turnbull to do well. Ever since he took over in November 2009, Abbott’s leadership has burnt fast and hot. His strategy was to barge into The Lodge. Now it seems likely the Coalition faces a full term in opposition. Abbott has to turn off his fast burn and apply slow, indirect heat to the Gillard government. He will need his shadow ministers to break down government policies bit by bit, not try to blow them up as quickly as possible. In other words, Abbott is relying on Turnbull to make the broadband network look like insulation, not the mining tax. Turnbull may be able to do so.

Since 2007, the government’s Communications Minister, Stephen Conroy, has successfully portrayed any Coalition critic of his broadband plan as a Luddite, as if they were opposed to the very idea of the internet and just a sledgehammer away from machine breaking. Conroy won’t be able to play that card now. You couldn’t parody Turnbull’s love of technology. He was not just the chairman of Ozemail; he recently released an iPhone application dedicated to all things Malcolm.

The Coalition can’t stop the broadband network, but it will be able to show how poorly thought through the project has been. After all, the network the government is building is not the network it took to the 2007 election. That first plan failed.

On a now infamous flight between Canberra and Sydney in April last year, Conroy used the time he could get with Kevin Rudd to explain their $4.7 billion scheme wouldn’t work. The two men sketched the

$43 billion scheme we’re getting now.

If we’ve learnt anything about the internet, it’s that we always find new uses for it and we always want more speed. But that doesn’t mean this specific network at this specific price, built in this specific style is the best way to get it. And it doesn’t mean the network has to be built by government. Before the 2007 election, Telstra was desperate to roll out high-speed broadband itself. Had the Howard government made some regulatory changes, we would already have the network at no cost to the taxpayer.

There’s a catalogue of problems with the NBN. A decade after Telstra’s privatisation, the government has taken responsibility for telecommunications.

Unfortunately, the Coalition’s alternative policy does little to resolve the deep regulatory issues that have held back Australian broadband. But right now, the burden of proof is on the government to show its NBN is worth the price tag.

The Liberals need their old, discarded leader to knock serious holes in the national broadband network.

Chris Berg is a research fellow with the Institute of Public Affairs.

Tea Party conservatives are brewing up a storm

It was hardly needed, but the Tea Party confirmed this week it’s a big deal in American politics. It’s a big deal for conservative politics internationally. New technology is giving conservative activists the power to form the sort of genuine grassroots movements the left has been for decades.

On Tuesday, the Tea Party scored a huge win when Christine O’Donnell beat Mike Castle in a Republican Senate primary in Delaware. Castle is the embodiment of an establishment Republican. He’s enjoyed a nine-term run in the House of Representatives. He was Delaware’s governor for seven years. He’s a great-great-great-great-great grandson of Ben Franklin. He’s very, very moderate.

He lost to the deeply conservative Christine O’Donnell, who carried a Sarah Palin endorsement. Defeating Castle scored her one of the biggest victories of the Tea Party so far.

Few overseas political movements are less clearly understood in Australia than the Tea Party. That’s no surprise. Sometimes not even the Tea Party is entirely sure what it stands for.

Take a questionnaire for Republican and independent candidates, written by a small, obscure Tea Party group in Erie County, Ohio. They call themselves the Freedom Institute. To get its approval you must believe marriage is solely between a man and a woman, gays should be kept out of the military, tariffs should be increased, the Federal Reserve should be abolished, and ”the regulation of carbon dioxide in our atmosphere should be left to God and not government”.

The Freedom Institute wants tax cuts and government workers to be exposed to ”the free-market system”. But they also want to impose trade barriers to keep jobs in the country. They want their politicians to be conservatives, but populist conservatives with some eccentric and jumbled views.

But compare the Freedom Institute’s list with a similar one supported by FreedomWorks, a large non-profit organisation with headquarters in Washington. They sum up the Tea Party’s central tenets as: start fundamental tax reform, stop the tax hikes, end runaway government spending, and protect the constitution. In other words, limited government, low taxes, and an end to government waste.

Few of those policy positions would be opposed by conservative, small-government Republicans. In Australia, they’d easily recognised as free-market liberalism. But for the international press, the Erie County list is far more interesting. The revolt against the Republican establishment is as much a revolt against big spending, big taxing George Bush as it is against the Obama administration.

Bush’s Republican administration instigated the rolling program of Wall Street bailouts which have plunged the US into debt. The US government deficit this year will be $1.3 trillion. That’s larger than our entire economy.

A Bloomberg poll found overwhelmingly the thread which ties the Tea Party together is a belief the US has lost its way in the past few years. Eighty per cent agreed the recent expansion of government was a threat to liberty.

A CBS/New York Times poll found Tea Party supporters tend to be more educated than the general public. And they’re not bad judges of character. The majority believe Sarah Palin is unqualified for the presidency. Bear that in mind when you next hear the Tea Party dismissed as a crazy fringe.

The political class isn’t sure what to make of the Tea Party. It comes from outside the polished environs of Washington. Few members have been involved in politics before.

They’re all simply plugged into networks of blogs and mailing lists. That makes the Tea Party sometimes confused, often naive, and easily led astray. It also makes its members powerful.

In Australia, we just saw how potent a conservative grassroots can be. The implosion of the parliamentary Liberal Party late last year over climate change was driven by a membership which saw Malcolm Turnbull’s support of the emissions trading scheme as unacceptable.

Thousands of emails were sent by party members and others calling for the position to change. In the end, they had to change leaders. Hopes for bipartisan climate action disappeared, and Kevin Rudd’s prime ministership died in the Liberal party room. A conservative grassroots destroyed a Labor prime minister.

Compare the attention that movement got to the praise heaped upon the even tiniest left-wing movement. Poor old GetUp! wishes it was half as effective as the Liberal membership last November.

Technological change has given conservative popular movements the power to challenge their establishment in the same way left-wing movements have for half a century. That’s the real story of the Tea Party.

It may get sucked into the Republican mainstream. Or its candidates may fail at election time. But the Tea Party isn’t wrong. America has serious problems. Those problems have energised the conservative base.

Life under Gillard could be an expensive business

If Julia Gillard holds government, the alliance she will have cobbled together will speak in one voice on one major issue – climate change.

Andrew Wilkie’s addition to the Gillard side on Thursday afternoon confirms this. The new independent from Tasmania had ”a price on carbon” prominent among his 20-point list of priorities for action.

Despite many Greens being uneasy with a quasi-market approach to climate change, Melbourne MP Adam Bandt and his party have embraced an emissions trading scheme.

And Gillard will be looking to keep the nine Greens holding the Senate balance of power in her government’s tent – a task made much easier by the lower house agreement she signed with Bob Brown this week.

Let’s say Rob Oakeshott and Tony Windsor fill up seats 75 and 76 in favour of the Labor government.

Oakeshott is clearly for climate action. In February, when the government’s Climate Pollution Reduction Scheme was looking ever more hapless, Oakeshott called its collapse ”a pox on both the major parties” and a ”disgraceful failure of so-called leaders in this country to tell the story of climate change and energy security”.

Tony Windsor has said that a price on carbon is inevitable, that he supports it, and doesn’t believe it will be a disaster for the bush.

Anyway, that’s the maths. Bob Katter may end up supporting Gillard, but does Bob Katter strike anyone as a team player? The member for Kennedy thinks Sir Nicholas Stern and Ross Garnaut are ”lightweights”, so it’s unlikely the government could count on his support for climate legislation any time soon.

Assuming the Labor alliance can survive the next three years – and that Gillard’s leadership will too – the precariousness of minority government will leave the prime minister looking for a policy win. An emissions trading scheme is an obvious candidate.

And not just any ETS. The 2009 model reflected the need to negotiate with the Liberals in the Senate. A new ETS would reflect a deal with the Greens, who rejected the last one as too weak, and the independents – Oakeshott has shown a reverence for Garnaut’s original, ”pure” emissions trading scheme.

Hung parliaments can be funny things. Despite the low profile of climate change in the 2010 campaign, and despite not gaining government in its own right, the ALP may now be more able to enact the policy it most wanted to last term.

But the debate over climate change policy has regressed badly. In 2009, Parliament was discussing the mechanics of the government’s elaborate cap and trade scheme. But in 2010, we’re stuck on this simple phrase: ”price on carbon”. It makes it all sound so simple.

But what would its target emissions level be? When would it start? How should trade-exposed energy-intensive industries be compensated, if at all? Should low-income earners be compensated?

Not to say anything of the main policy crunch of November and December 2009 – the failure of the Copenhagen summit. An emissions trading scheme cannot achieve its goal without being part of a global agreement.

The notion of putting a price on carbon is popular. Around 50 per cent of Australians believe climate change is a serious problem that should be tackled by government.

Yet actually paying that price is substantially less popular.

A poll by the Lowy Institute has tracked the willingness of Australians to pay extra for electricity. The number of people who refused to pay anything to tackle climate change has increased from 21 per cent in 2008 to 32 per cent in 2010. And less than a third of those who believe that there should be a significant price on carbon report themselves willing to pay a significant price for energy.

Even if the federal government manages to get an ETS through Parliament, the key to emissions reduction is to slowly but perceptibly increase the cost of emitting.

Recent elections have shown us Australians are inordinately sensitive to real or imagined cost-of-living increases. Few governments would be eager to deliberately ratchet up the price of electricity every single year.

Supporters of emissions reduction argue that new technologies will fill the gap and keep prices down. To a degree, that’s true. But the pace of technological change is not guaranteed. There’s no reason to believe that the price of wind power will drop in concert with a rise in the carbon price.

In her deal with the Greens, Gillard ditched the much-ridiculed citizens’ assembly. Instead, she plans a climate change committee, formed under the auspices of Parliament, and including only those committed to a price on carbon.

Her alliance may help Labor get emissions trading through Parliament. But the emissions trading model the climate change committee devises may create more political problems than it solves.

Chris Berg is a research fellow with the Institute of Public Affairs. Follow him at twitter.com/chrisberg

It was obviously a tactical error for Paul Hogan to tell the Australian Taxation Office to “come and get me, you bastards”.

The ATO claims Hogan used offshore accounts to hide profits from his film Crocodile Dundee and avoid paying tax. So they slapped him with an order to prevent him leaving the country. Never say the Tax Office isn’t fearless: Hogan was visiting Australia for his mother’s funeral.

The order was lifted yesterday after the Tax Office and Hogan had a ”cordial” meeting.

There are many reasons to be concerned by this course of events. The Hogan case is a window into just how draconian the government’s taxation and regulatory powers have become.

To start: Hogan has not been charged with any crime. Sure, he allegedly owes the government money – some reports claim it could be up to $150 million, after interest and penalties.

But he has an absolute entitlement under our taxation system to dispute that amount. And there’s a fair chance he could win: about half of all tax disputes end with the taxpayer paying less than the ATO claimed. Tax disputes are complex and technical. Taxpayers have been known to make mistakes. So has the ATO.

On a purely practical level there was little reason to believe he was a flight risk. Hogan is no Carlos the Jackal. Yes, he lives overseas, but he has returned to Australia frequently in the many years he has been under investigation. He has five children and nine grandchildren here.

Hogan’s bad luck was to find himself smack bang in the middle of a political push to eliminate the use of overseas tax havens. He is the highest profile target of Project Wickenby, a federal government crackdown on offshore tax evasion and tax avoidance.

Project Wickenby’s conflation of evasion and avoidance is a big problem. Everyone tries to avoid paying more tax than they have to. We all keep receipts of work-related expenses and rigorously, if not enthusiastically, tally them up to be deducted from our income.

One Henry tax review recommendation was to set a “default” deduction, institutionalising this minor and common form of tax avoidance.

Sometimes avoidance is more complicated – digging through the tax act for exemptions. Australia’s income tax law is 5743 pages long. Compare this to Hong Kong’s 200 pages, and it’s no surprise there are many cunning schemes to minimise tax.

There’s nothing wrong with that. Australians have no moral obligation to pay more tax than the tax law requires – even if it means using offshore accounts. The government itself admits that many uses of tax havens are completely legitimate.

Evasion is supposed to be very different from avoidance. For one, it’s clearly and unambiguously illegal. You evade tax when you are liable to pay tax, but deliberately do not.

In Australia, the distinction between evasion and avoidance has been long recognised by law. Yet in the past two decades the government has deliberately blurred the distinction in order to investigate tax havens and their clients.

One reason governments don’t like tax havens is obvious: money goes to the haven instead of government coffers. But perhaps a bigger reason is tax competition. Lower taxes elsewhere pressure governments to keep their own tax rates down.

The Organisation for Economic Co-operation and Development has been running a campaign to have developed nations harmonise their taxes as far as possible and end the “harmful” competition.

This international debate about the legitimacy of tax havens and the desirability of tax competition is the background to Project Wickenby and the case against Hogan.

For now, whether Hogan’s alleged use of offshore accounts is evasion or avoidance is an open question. While this question remains unresolved, the ATO’s violation of Hogan’s freedom of movement – a basic civil liberty – is obscene.

It is also a reminder that some of our regulatory agencies and government departments are vested with extraordinarily coercive powers. Since 2004, Wickenby investigators have been repeatedly accused of being aggressive and using intimidation as a weapon.

The Australian Securities and Investments Commission can be just as draconian. ASIC has a remarkable array of powers. It can compel people to answer questions with no recourse to the court system. ASIC runs private hearings, where people are made to give evidence under oath, with “as little formality and technicality” as possible – “formalities” such as the rules of evidence and the privilege against self-incrimination. The ASIC Act even says the regulator should do “whatever is necessary”.

A Senate report in 2000 found that a number of government agencies had stronger powers to enter and search private property than the federal police. In the Herald in July, Professor George Williams argued that many powers held by the Australian Building and Construction Commission “greatly exceed those given to any police officer in the nation”.

And the Rudd government’s Carbon Pollution Reduction Scheme Bill – had it passed – would have eliminated the right to silence and the privilege against self-incrimination, and reversed the onus of proof for suspected polluters.

The erosion of these rights and protections in order to tax and regulate should be a big concern.

These protections have developed over centuries to defend the rights of individuals against coercive and unjust state power.

Polluters deserve rights, too. So do unions targeted by the ABCC. And people suspected of corporate wrongdoing. And wealthy taxpayers.

The ATO has badly abused Hogan’s civil liberties. That’s bad enough. But more worrying is that many other regulators have the ability to do so as well.

Author: Chris Berg