Will We Kill Civilians In An Effort To Save Them?

The humanitarian intervention problem is that the following two propositions are both equally true.

First, there is a moral imperative to prevent humanitarian tragedies. Any notion of state sovereignty has no force when that state is murdering its own citizens. And “it’s none of my business” is not an appropriate response to foreign atrocities.

But second, military interventionism is unlikely to be effective at anything more than achieving immediate, short-term goals. It is certain to have unanticipated and unintended consequences.

At best the results of intervention will be unpredictable. Preventing tragedies in one time and place may indirectly contribute to tragedies in another time and place. At worst we end up killing civilians in an effort to save them.

Neither of these two propositions ought to be controversial. The former is an obvious moral truth. The latter has unfortunately been demonstrated over and over again.

It’s easy to think of instances where military intervention has been ineffective or counterproductive. It’s less easy to recall examples of clear success. The successful reconstruction of Germany and Japan after World War II seem more like mysterious outliers than models to emulate.

Despite this sad record, there is an emerging doctrine in international law and relations called the “responsibility to protect”. The idea is that while states have the ultimate responsibility to look after their citizens, those that fail to do so are liable for foreign intervention – from gentle diplomatic suasion right up to military action.

Known informally as “R2P”, this doctrine was first acted upon in 2011 with the military intervention in Libya.

Few dictators deserved to be overthrown more than Muammar Gaddafi. But three years later Libya is in chaos. Just last month Human Rights Watch was reporting war crimes in the ongoing battle for control of Tripoli. There are a quarter of a million militia fighters in Libya.

So unless R2P advocates only care about the very short term, it is fantasy to describe the Libyan intervention as a success.

Yes, it is possible that Western military action prevented something worse. But that counterfactual is impossible to test. The measure of humanitarian intervention can’t be simply whether we can defeat third world dictators in battle. We can. What happens after the initial intervention matters too.

I’m sure the legal validity of R2P has been carefully worked out by international lawyers and scholars. But as a guide for policy, it is a triumph of hope over experience.

It is sometimes claimed that the 2003 invasion of Iraq would have been a clear success if Barack Obama hadn’t withdrawn troops in 2011. Like Gaddafi, Saddam Hussein deserved his fate. Perhaps if coalition troops had stayed then we wouldn’t be facing the Islamic State problem now. (See, for instance, this recent piece in the Washington Post.)

However, if the success of the 2003 Iraq war was really dependent on a never-ending military commitment, then it was hopeless from day one. Domestic political constraints make permanent occupation impossible. The public tolerance for casualties and deficits is finite. Eventually voters turn against war. This domestic reality has to be factored into intervention planning.

And yet … it is simply impossible to watch overseas tragedy unfold without wanting to prevent it. One 2010 book put this way:

Even those who are deeply suspicious of armed humanitarian intervention and deeply sceptical about its prospects of success may still admit that it might, in theory, be justified when a humanitarian crisis is sufficiently serious.
That intervention has failed in the past does not mean it inevitably fails in the future. No doubt there are some Libyans alive because of Western action.

But what’s not acceptable is the “it’s the thought that counts” school of humanitarian intervention which washes its hands of long-term consequences in order to bray about quick military victories and our altruism-by-force.

Take, for instance, this Guardian piece after the Libyan intervention: “No large-scale military intervention ever comes free of moral hazard.”

Or this one by the former US State Department official Anne-Marie Slaughter, proclaiming the moral goodness of intervention and Western values and all that, then casually admitting at the end that “Libya could disintegrate into tribal conflict or Islamist insurgency, or split apart or lurch from one strongman to another”.

Overseas atrocities present a genuine and tragic dilemma. The case for protecting civilians against IS is unimpeachable.

But Tony Abbott told ABC radio yesterday that he could not “promise perfect success”. This is not a good sign. And the mission’s goals are already hopelessly confused.

Attorney-General George Brandis says IS is an “existential threat” for Australia. Yet, on the other hand, we’re also being told what’s planned is “a humanitarian operation to protect millions of people in Iraq from the murderous rage of the ISIL movement”.

So which is it? Are we at war to defend Australia or to protect Iraqis? The distinction isn’t minor. Is our goal to contain the threat or to destroy it?

Contrary to what the Prime Minister has said, fighting IS is hardly a “specific and clear objective”. It seems like the exact opposite: vague and open-ended. Maybe we’ll defeat IS. Or maybe, in Obama’s words, we’ll just “degrade” it.

The truth is of course we are only returning to Iraq as part of an American coalition. That the mission is unclear is a reflection on the Obama administration rather than the Abbott Government.

Either way, the question that policymakers have to confront is not whether we have a responsibility to protect Iraqis and Kurds from the IS menace. The real question is whether we are capable of doing so.

Romanticising Reform: We’ve Set The Bar Too High

Is major economic reform no longer possible?

That’s the conclusion Paul Kelly draws in his recently released history of the Rudd and Gillard governments, Triumph and Demise: The Broken Promise of a Labor Generation.

Yet it’s a strange conclusion, because the story Kelly tells over 500 pages is one of near-constant ineptness and dysfunction by Kevin Rudd and the architects of Julia Gillard’s 2010 coup.

If Kelly’s narrative is correct then surely getting rid of those characters would allow reform to pick up again.

Of course there’s much more to a political system than politicians. If Australia is unreformable then it must be for institutional reasons. Not simply because we’ve had a rubbish bunch of recent leaders.

Kelly offers a few institutional explanations for why political culture has changed. First, the pace of personal and social life has intensified. Second, social fragmentation and technology mean that “sectional interests have more power than before”.

These aren’t really answers though. Why has the pace of personal and social life intensified? And surely sectional interests were more powerful when – for instance – the major parties specifically represented sectional interests, as the Labor Party did for trade unions and the Country Party did for the agricultural sector?

The last major reform success Kelly identifies was John Howard’s GST in 1998. The question is what has changed since. There are a few possibilities. For instance, Australia is richer and more populous. But it’s hard to see why that would make us less open to reform.

Technological change is one obvious institutional explanation. As technology has destroyed the business models of the big news outlets, it has also undermined the clubbish nature of Australian politics.

In the past policymakers were able to call up a handful of key journalists and media owners and they’d be virtually guaranteed press gallery support for their agenda. The cramped quarters of Old Parliament House meant that journalists and politicians lived on top of each other.

When a journalist tried to break out of the club – as Max Newton did when he left The Australianin 1965 and set up his own publishing outlets – it was scandalous. (The story is best told by a press gallery insider who opposed his reintroduction to the gallery, Alan Reid, in the 1969 book The Power Struggle.)

Now the mastheads are collapsing and the gallery is starting to be populated by outsiders. TakeCrikey and the Guardian, for instance. Political commentators – as opposed to gallery journalists – are even more diverse and uncontrollable.

There are more outlets, those outlets that exist have fewer staff, and digitisation means those staff can be spread around the country.

It’s now entirely impossible to line up the press behind a major new policy with charm alone.

This is a good thing though. If it is hard for politicians to railroad through reform because our democracy is richer and more vibrant, well, too bad for reform.

There are two popular technological explanations for our political malaise that we need to rule out: social media and the 24-hour news cycle.

Social media has democratised political debate but it would be hard to blame Twitter for Kevin Rudd abandoning his emissions trading scheme or the lack of consensus on Joe Hockey’s GP co-payment.

Anyway, social media is hardly the first time the political class has faced media democratisation. Talkback radio was a virtual revolution when it was legalised in 1967. Talkback delivered passionate, virtually instant political feedback. Politicians and parties struggled to adjust their campaign and communications strategies accordingly.

But they managed. As they will with Twitter and Facebook. It’s easy to forget how recent any of this stuff is. In 2007 merely posting a video on YouTube – as John Howard did during the campaign – was remarkable.

And the 24-hour news cycle? Yes, 24-hour television is a relatively recent innovation in Australia. But nobody really watches it. We’ve had 24-hour radio for decades. We certainly had it during the great reform era of the 1980s.

Too often the political class is deluded into thinking voters care about day-to-day politics. “Winning the day”, as Kevin Rudd tried to do, means nothing for those people who tune into the political news at most a few times a week.

In other words, the problem is less the technologies that govern politics but the way political strategists adapt themselves to those technologies.

If the world has changed, the political class is just going to have to learn how to change with it. They’re in the middle of this process. They haven’t yet reached a comfortable equilibrium.

Nor is it clear that the technological empowerment of activists and corporate interests presents a roadblock to reform.

Take the now iconic example of resistance to government policy – the anti-mining tax campaign in 2010. This campaign was actually as traditional as they come. An industry peak body took out television ads.

In practice this campaign was not much different from the anti-bank nationalisation campaign run by the banks nearly 70 years ago.

One year into the Abbott Government and it’s easy to think the worst of the political system. But over-rating the past in order to reflect poorly on the present is an old human pastime.

Kelly more than anyone has created the hero story of Australian political history. His 1992 book End of Certainty made Paul Keating and Bob Hawke out as larger-than-life figures whose decisions were confident, epoch-defining, and Australia-changing. (The contrast between Kelly’s bombastic End of Certainty, and Laura Tingle’s gloomier Chasing the Future, published just two years later, is striking.)

Our political class has imbibed a thoroughly romantic interpretation of the 1980s and early 1990s.

Against it, any modern leader would fall short.

Don’t Rush To Act On Terrorism Threat

Specific policy problems demand specific policy solutions.

So the Abbott Government has done us a favour by being very specific about the new terrorist threat: Australian residents fighting in Syria and Iraq who come home even more radical and potentially violent.

These “foreign fighters” are a specific threat that demand specific legislative change. It does not demand an overall increase in broad and adaptable police and national security powers.

Let’s start, as all policy discussion should, by being clear about the problem.

One in every nine jihadists who travel overseas to fight in foreign conflicts return to attempt terrorist attacks in the West, according to the best estimate we have.

Considering there could be more than 100 Australians fighting in Syria and Iraq, that ratio is worrying.

The one-in-nine figure was assembled by Thomas Hegghammer and published in the American Political Science Review in February 2013. It’s based on jihadists from the West between 1990 and 2010.

The Syrian conflict started in 2011, outside Hegghammer’s analysis. In an excellent piece in the Age in August, Andrew Zammit detailed some instances of Syrian returnees going on to plot domestic attacks.

One-in-nine is hardly an iron law of terrorism, of course.

Fighting in foreign wars is a very old phenomenon – think George Orwell in the Spanish Civil War – and the motivations for fighting in foreign wars and conducting domestic terrorist attacks differ enormously.

Terrorism remains an extremely low probability event.

But one thing we could say about foreign fighters is that they’ve done law enforcement agencies a huge favour – they’ve self-identified as security threats. As Hegghammer points out, experience in jihad overseas is the biggest predictor of future terrorist intent. So they’re good candidates for close monitoring.

Or good candidates for immediate prosecution. It is illegal under Australian law to engage, or intend to engage, in hostile activity in foreign states. An exception is joining the armed forces of a foreign state. (Australians can’t join Syria’s pro-Assad military, though – we have sanctions prohibiting that.)

Here’s where Parliament can get to work. This law was originally developed to prevent mercenary activity in Angola and Rhodesia in the 1970s. Today it is not particularly fit for purpose.

Bret Walker, until recently the Independent National Security Legislation Monitor, has repeatedly argued for reform of the law governing foreign fighters. Walker’s last annual reportexposes a number of inconsistencies and concerns that the Abbott Government needs to fix.

For instance, it’s hard to prosecute foreign fighters in Australian courts. Laws governing the collection of evidence overseas require the cooperation of foreign states, but what if the offence occurred in a region with no functioning or cooperative government? This is a problem in both Syria and Islamic State-controlled Iraq.

In these very limited circumstances it might be necessary to relax some of the restrictions on what evidence can be admitted into court.

One popular argument is that we should just let foreign fighters go – better they fight and die for jihad overseas than plot terror attacks in Australia. But not all do die.

This New York Times piece points out that many foreign fighters plan to stay in Syria and Iraq for good. Some show their dedication by symbolically burning their Western passports. Yet plans can change.

Anyway, why should we be any more tolerant of those who travel to train and fight in Syria or Iraq than we were of the previous generation of jihadists who joined training camps in Afghanistan? Zammit points out that many of them intended to fight in regional conflicts before being recruited by Al Qaeda to attack the West.

Regardless, it’s probably best that Australia does not act as a staging base for terrorist attacks on foreign civilians. There is no fundamental human right to wage sectarian war.

Walker has identified some serious inconsistencies between the criminal code and the foreign fighter laws.

In large part this is because successive governments have piled terrorism offense-upon-offense into the statute books, rather than systematically reviewing what sort of conduct is already criminalised. George Williams calculated that after the September 11 attack the Howard government introduced new anti-terror legislation every 6.7 weeks.

The Abbott Government is heading down the same path.

The Attorney-General George Brandis has proposed reversing the onus of proof for Australians who travel to dangerous parts of the world – the prove-you’re-not-a-terrorist proposal. Undermining the presumption of innocence is an incredibly ham-fisted way to tackle a genuine evidentiary issue.

The foreign fighter threat doesn’t justify the dangerously broad restrictions on reporting security operations contained in the legislation introduced to Parliament in July.

Nor do a few dozen Australians waging jihad in Syria go anywhere near justifying – for instance – a mandatory data retention scheme, which, by requiring internet service providers to create a database of information solely for the purpose of law enforcement, would treat all Australians as potential criminals.

Taking the foreign fighter threat seriously justifies some legislative change; minor change, yes, but important.

It is not the case that any legislative change will do.

Submission to Australian government Online Copyright Infringement Discussion Paper

The law governing copyright infringement in Australia is characterised by uncertainty and complexity. Technological change has exacerbated these problems, enabling large scale copyright infringement, which in turn has exposed a lack of social agreement on the desirability of copyright protection.

This submission argues that the Commonwealth government’s proposed reforms to copyright law do nothing to tackle the underlying dynamics that have led to these developments. Instead, they seek to tip the balance in favour of copyright holders. The proposed reforms:

  • Will do little to prevent copyright infringement;
  • Have an unacceptable impact on freedom of speech;
  • Increase, rather than decrease, the underlying uncertainties of copyright law in Australia, particularly while Australia lacks a ‘fair use’ exception;
  • Give the government the power to create new copyright frameworks by regulation; and
  • Constitute an attempt to shift the costs of copyright protection from copyright holders to internet service providers.
  • Furthermore, while the proposal to extend the safe harbour provisions in the Copyright Act is welcome, it helps illustrate the underlying uncertainties of Australia’s copyright regime.

This submission first outlines the principles by which copyright law reform must be judged.

Copyright is not an unlimited right – it is granted by the government in order to provide incentives for the production of creative work. As such, copyright law has to strike a balance between the interests of monopoly rights-holders and other users of creative works. The political bargain sustaining copyright is inherently unstable, and the instability is further exacerbated by unpredictable technological change.

In Australia, the imbalance of copyright is represented most obviously by the lack of a fair use exception for copyright infringement. This creates a great deal of uncertainty in its own right, but in the context of the government’s proposed reforms, weighing the copyright balance further in favour of copyright holders without introducing a fair use exception will substantially increase that uncertainty.

The submission concludes by outlining specific problems with the government’s proposals.

Available in PDF here.

The Cold Calculations Of The GFC Stimulus

Wayne Swan’s memoirs of his time as treasurer, The Good Fight, spend a great deal of time on the global financial crisis.

As Swan presents it, the case for massive fiscal stimulus was a slam dunk. Only fools and knaves would disagree.

There’s no sense in his memoirs that fiscal stimulus was a policy experiment under conditions of enormous uncertainty. The stimulus is just used as evidence that Swan isn’t afraid to make the big calls, isn’t afraid to back himself etc., etc., etc.

So more interesting than anything in the book is a memo, two short pages, prepared for an August 2008 meeting in the Lodge between Swan, Kevin Rudd, treasury secretary Ken Henry, and their staff. Swan released it as part of the pre-publicity for his memoirs. It’s available here.

The memo underlines the policy trade-offs behind the stimulus decision, how political considerations swamped economic ones, and brings back into the picture an apparently forgotten pillar of Australian economic management: the poor old Reserve Bank.

In other words, this two-page memo is a better policy history of the GFC in Australia than anything yet published.

The memo was prepared just before the September collapse of Lehman Brothers turned an American housing crisis into a global financial one.

(For context, the first Australian stimulus package, $10.4 billion, was announced in October 2008. The big one came in February 2009. It was $42 billion.)

Economies with central banks have two policy options on the table when there’s an economic downturn – monetary policy and fiscal policy.

The monetary response comes from the Reserve Bank as it adjusts the cash rate to balance inflation and growth. This happens once a month, in good times and bad, no matter what the elected government does.

The fiscal response has two parts. First are the “automatic stabilisers”: economic downturns lead to increased government welfare spending. Second are discretionary stimulus packages, determined by political considerations and the sluggishness of policy implementation.

Why is fiscal policy needed? Well, monetary policy, it is widely believed, has a limit. When the cash rate is at or near zero (the “zero-bound”) it can’t go lower.

For economists like Paul Krugman, Brad DeLong and Larry Summers in the United States, the fact that interest rates are at the zero-bound means monetary policy has been neutered and fiscal policy has to take over. (For that argument, see this 2012 paper by DeLong and Summers.)

An alternative view is provided by Scott Sumner, who argues that the zero-bound doesn’t mean monetary policy is ineffective – central banks have more tools than just the cash rate. (You can read Sumner’s argument here.)

It’s an interesting debate. But from an Australian perspective it’s beside the point. We never got to the zero-bound. We never met the initial condition for discretionary fiscal stimulus. In Australia, monetary policy still had a lot of room to move.

The August 2008 memo opens with the observation that the RBA was deliberately trying to slow the economy down in the first half of that year. But the RBA had overshot. The slowdown was “occurring more sharply than initially anticipated”. This was the context for the early stimulus planning – a bad RBA error.

In October 2008 the RBA changed course and cut the cash rate by a full percentage point. In his book, Swan writes how the rate cut news came during a cabinet committee meeting into stimulus planning. The committee was stunned into silence.

“Without doubt this changed the entire dynamics of events over the next 18 months.”

What extraordinary timing. But should the October rate cut really have been such a cause for panic? Only insofar as it demonstrated how badly the central bank had misread the economic climate. Over the course of the next six months the RBA completely reversed its earlier policy, plunging the cash rate from 7.25 in August 2008 to 3 per cent in April 2009.

Tony Makin pointed out a few years ago that, from the perspective of individual consumers, this interest rate fall made the $900 cheques look like chicken feed.

But there it stopped. The cash rate never approached zero. It never got close. Even as the stimulus package was being rolled out the RBA began to lift rates. First in October 2009. Then in November. Then in December. Then in March, April, and May 2010.

Those increases were predictable. It’s what the memo said might happen: “The Reserve Bank through its control over interest rates, determines the overall level of aggregate demand in the economy, and the Bank would likely take account of any fiscal stimulus in its monetary decisions – that is, more spending would keep interest rates higher than otherwise.”

As Stephen Kirchner writes, that’s a pretty good description of the “monetary offset”. When a country has a central bank targeting inflation and growth, fiscal stimulus is redundant. It’s both costly and unnecessary.

So why did the Rudd government push so hard for stimulus? Once again, it’s right there in the document: because of “the potential political costs of being seen to do nothing in the face of slower growth and rising unemployment”.

Monetary policy is hardly nothing. But the government couldn’t take credit for it.

The decision to deploy massive fiscal stimulus set in train all the events and personality clashes that defined Labor’s term in government.

The debt racked up in those few months crippled Kevin Rudd’s policy agenda, undermined every one of its future budgets, and, by liquidating the surplus in an instant, damaged its economic management credentials.

And for what? To avoid “the potential political costs of being seen to do nothing”.

Mandatory Sentencing: A King Hit For Courts

You can smell the air of an election in Victoria. On Sunday the Napthine Government announced it wants 10-year mandatory minimum sentences for “one-punch” killers.

The Labor Opposition retorted that it would prefer a new offense of death by assault that would offer up to 20 years in prison.

Obviously the November election is going to be a standard law-and-order auction.

At least when New South Wales introduced its mandatory minimum sentences for one-punch laws in January it did so in response to a massive media-driven moral panic about alcohol-fuelled violence.

Let’s be clear. One-punch killers deserve the maximum possible penalty that is proportionate to the crime that has been committed.

But mandatory minimum sentences have a special place in the tough-on-crime pantheon – there is almost uniform intellectual agreement that they are a bad idea.

The title of one 2009 survey on the evidence about mandatory minimums led with its conclusions: The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings. It argued “the decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones.”

Opposition to mandatory minimum sentences isn’t a left-right thing. In 2000 the conservative Samuel Griffiths Society published a paper describing mandatory sentences as a “tragedy”, “unjust”, and violating the “fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime”.

So why? The purpose of mandatory minimums is to reduce the discretion judges have in determining sentences, replacing that discretion with a bright-line rule determined by the legislature.

The idea is that judges tend to be soft on criminals, apparently giving lower sentences than the public would like. So the legislature has to step in. Furthermore, imposing a mandatory minimum sends a message: this is an especially serious crime.

But removing judicial discretion in the sentencing process can lead to serious miscarriages of justice – forcing judges to give disproportionately tough sentences when the circumstances may demand more leniency.

Nor, as the 2009 survey cited above makes clear, is there any consensus that mandatory minimums have particularly powerful deterrence effects – at least no more so than discretionary sentencing.

And rather than imposing parliamentary control over sentencing decisions, mandatory minimums shift discretion from judges to prosecutors.

This latter point is the most important. Mandatory sentences aren’t mandatory, in any real way. Every criminal system, by its nature, has to involve a great deal of discretion.

Under a system with mandatory minimums, the key issue becomes what the prosecutor intends to charge – the charge with the mandatory sentence, or some other collection of charges? That decision encourages prosecutors and accused criminals to bargain about what charges will be bought and what facts will be admitted before any trial takes place. This is particularly prominent in the United States where mandatory minimums are extremely common. Suspects and prosecutors engage in a game of arbitrage, negotiating around the suite of potential charges.

As one Australian paper argued, mandatory sentences “make pre-trial decisions the key to the outcome of a case”. They don’t eliminate discretion. They just shift it to prosecutors. Hardly any more democratic, but much more opaque.

Of course, most voters would prefer harsher penalties for crime, particularly thuggish crimes like king hits. If they didn’t, then tough-on-crime policies wouldn’t be politically effective. One global study concluded that mandatory minimum sentences are popular … as long as they are discussed in general terms. But when presented with specific cases that popularity ebbed away.

That finding accords with a more general observation that different expectations about sentencing between courts and community disappear when specifics are examined. (See this Tasmanian study, for instance, or this Victorian one. The NSW parliament has a recent overview of research here.) The reason is simple, if a bit uncomfortable: courts follow public opinion more than they care to admit.

The original mandatory sentence was the death penalty. Capital punishment is as final a punishment as you can get. It was loved by the tough-on-crime politicians of the 17th and 18th century, when long-term incarceration was too expensive to be an option.

It is said that Edmund Burke once commented he could “obtain the consent of the House of Commons to any Bill imposing the punishment of death”.

But even in that era the judiciary tried to vary the punishment to fit the circumstances of the crime.

Stuart Banner points out in his 2002 book the Death Penalty: an American History there were a surprising number of ways executions could be varied to make them more lenient or more punitive. Sometimes a hanging was staged up to the very last moment, when the condemned was released to their surprise. Sometimes the execution was merely theatrical. For the worst crimes, hanging was combining with, for instance, dismemberment.

In other words, even in a world with just one possible punishment in theory – execution – the judiciary and executive government saw the need for substantial variation in sentencing.

Legislation is a blunt instrument. To impose a general rule on human society it is necessary to abstract away from specifics; to slide over details and particulars in order to come to a broader principle that can be applied to an unpredictable and diverse mixture of conduct in the future.

Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice.

It is one of the foundations of our common law system. Judges must have the flexibility to impose sentencing in proportion to the crime, taking into account all the circumstances and specifics and the necessity to punish those who have done wrong.

This principle is too important to abandon just because an election is coming up.

Going Against The Grain On Data Retention

George Brandis claimed last month that data retention was “the way Western nations are going”, but the opposite is true. Australia would be going against the grain, writes Chris Berg.

It would have been good if, at their press conference last Friday, the Australian Security Intelligence Organisation and the Australian Federal Police had been joined by all the other government bureaucracies that passionately support mandatory internet data retention.

Because data retention is not about national security. It’s about collecting data on every Australian for every law enforcement and regulatory compliance agency to use. And for everything from serious crimes to trivial infractions.

So David Irvine of ASIO and Andrew Colvin of the AFP could have been joined by Chris Jordan of the Australian Taxation Office, Rod Sims of the Australian Competition and Consumer Commission, and Greg Medcraft of the Australian Securities and Investment Commission. All have been pushing for data retention in committee hearings and inquiries.

And then, for completeness, we could have had a few of the dozens of state and federal agencies who currently enjoy authorised access to private communications data under the existing Telecommunications (Interception and Access) Act.

Squeeze on stage the Western Australian Department of Fisheries, Racing Queensland, New South Wales Health Care Complaints Commission, RSPCA South Australia, and Wyndham City Council. They would all be beneficiaries of mandatory data retention.

In other words, data retention is hardly a targeted anti-terrorism measure.

There were, in fact, two separate data retention proposals last week.

The first was announced by Tony Abbott and George Brandis on Tuesday. We’ve all seen the muddled interviews but the broad strokes of the policy itself were relatively clear. The Government was planning to force internet service providers to record both the internet protocol (IP) addresses of their customers and the IP addresses of the websites that those consumers visited.

This is sometimes known as “session logging”, or more popularly as “browsing history”.

Abbott and Brandis clearly left the National Security Committee last Monday night, and Cabinet on Tuesday, thinking session logging was what had been agreed to – it was the “in-principle decision”.

Then something changed. A second proposal was announced by Malcolm Turnbull, and confirmed at the ASIO and AFP conference on Friday. In this, the only data that is to be kept is IP addresses matched to customer details. Not a record of all the sites the customers visit.

With the data provided by the Abbott-Brandis session logging policy, it would be possible to map out a person’s entire world. No ISP keeps such a record of its customers’ online lives. Why would it? Anyway, doing so would be in breach of Australian Privacy Principles, which state that no more information ought to be kept than is necessary for business purposes.

The Turnbull policy is still useful for law enforcement, but much, much narrower. It’s only a small step away from billing information. And a few ISPs do keep this data. Storing it consistently might be expensive – very expensive for some ISPs – but it’s hardly the giant threat to privacy and liberty that the Abbott and Brandis policy constitutes.

Most importantly, it is not the mandatory data retention policy proposal that has been on the table for years – large-scale session logging – the policy that Malcolm Turnbull described in 2012 as “the latest effort by the Gillard government to restrain freedom of speech”.

Thank goodness.

As Bernard Keane has found, the Attorney-General’s Department has been pushing for the full version of data retention since at least 2008.

The intellectual genesis of this policy goes back 2006, when the European Union passed the Data Retention Directive. (Australians rarely come up with these ideas themselves.)

The directive instructed all EU member states to retain large quantities of communications data – both source and destination – for the investigation of “serious crime”. You can read it here. Article 5 outlines how just how large those quantities were to be.

European countries did as they were told.

Their experience shows that Tony Abbott was spot on when he said on Wednesday that data retention was designed to fight “general crime”, not just terrorism.

In a sample 12-month period, an Austrian review found that the most common law enforcement use of retained data was for cases of theft, followed by drugs, followed by stalking. Terrorism didn’t rate.

Internet traffic data retained by Poland’s scheme is being used “more and more” for civil disputes – even divorce cases.

The Danish Justice Ministry found only two cases where session logging has been useful in half a decade. Neither concerned terrorism. Denmark gave up data retention in June this year.

Germany’s Federal Crime Agency concluded that data retention had no statistically relevant effect on crime or crime clearance. Crime continued its long-term decline even after data retention was abandoned in Germany in 2010.

We could go on. Brandis claimed last month that data retention was “the way Western nations are going” but the opposite is true. Data retention is being wound back, repealed, and abandoned. In April this year the European Court of Justice found that the EU directive was unconstitutional.

Australia already has a powerful, robust mechanism to monitor suspects online: targeted data preservation notices on the telecommunications of suspects. This regime was updated just two years ago.

But that, perhaps, is beside the point. The last week has demonstrated that the debate over telecommunications surveillance is held in widespread ignorance – ignorance about our existing capabilities, the constantly evolving legal framework, and the architecture of the internet.

Not surprising, of course. This stuff is complicated. Technology policy is hard enough. Add onto that our labyrinth telecommunications intercept laws.

But politicians ought to try to understand the laws their departments insist they introduce.

Abbott and Brandis seem to have thought that merely mentioning the word “terrorism” would be enough to ensure their policy an easy run.

Yet no matter how real the terrorist threat, the pre-emptive surveillance of every single Australian would be an extraordinary policy in every sense of the word – way outside the bounds of proportionality, and way outside the boundaries of legitimate government action in a free country.

The repeal of the carbon tax

‘What a complete and catastrophic failure of the political system’, wrote the Guardian’s Lenore Taylor a few hours after the carbon tax repeal bill finally passed the Australian Senate. ‘As eight years’ work by thousands of people disappears with the Senate’s vote, many may have cause for regrets.’

Perhaps many do. But from this vantage point the political system has worked messily but as intended. Having promised in opposition to axe the tax, on 17 July 2014 the Coalition axed the tax. Against all odds, even. The showy last minute political games played by Clive Palmer made it look touch-and-go for a bit.

Nevertheless, given the serious problems Australia has had in recent years about governments keeping their promises, the repeal of the carbon tax was a pretty good case of democratic function, not democratic failure.

Taylor’s lament isn’t really that the political system has failed, per se; it’s that the political system has failed to achieve one specific goal — a legislatively driven programmed reduction in Australia’s carbon emissions.

Of course that bipartisan goal of a five per cent reduction of carbon dioxide emissions from 2000 levels within the next six years ostensibly remains. But nobody thinks the Coalition’s Direct Action plan — an apparently un-ironic throwback to the days of corporatist industry policy, with taxpayers simply paying private companies to cut their emissions — will achieve that goal.

The carbon tax has been a centrepiece for three elections. In 2007 John Howard followed the lead of the energetic Kevin Rudd and the Coalition announced its own emissions trading scheme. In 2010 Julia Gillard promised that there would be no carbon tax under the government she led. Instead, there would be a ‘citizens’ assembly’ into the evidence for climate change — possibly the most cringe-worthy idea in the history of Australian politics — with the eventual aim of introducing an emissions trading scheme at the end.

Finally in 2013 Tony Abbott defeated a briefly resuscitated Kevin Rudd with a promise to abolish the very carbon tax Gillard had promised not to introduce.

Buried in that potted history is a wealth of extraordinary drama, and nuance, and subtlety—real or imagined. We’ve had multiple formal emissions trading scheme proposals — including Kevin Rudd’s Carbon Pollution Reduction Scheme and Julia Gillard’s Clean Energy Future.

We’ve had a host of government inquiries — most prominently those done by Peter Shergold under the Howard government and Ross Garnaut under the Rudd government.

We’ve had a diverting but ultimately empty debate about the definition of a ‘tax’. When Kevin Rudd in 2013 announced that he was going to ‘terminate the carbon tax’ by moving it to an emissions trading scheme slightly ahead of schedule, those semantics of when a tax becomes a trading system became a parody of themselves.

It is hard to over-emphasise the shift in the politics of climate change over the last five years. Throughout 2009 commentators and the press gallery urged the Coalition to join the carbon tax bandwagon. There were claims that the Coalition had not ‘learned the lessons’ of 2007 — a viable party had to embrace an emissions trading scheme policy.

Today the emissions trading scheme is history and those who proposed it toppled from their leadership roles.

For climate activists the task is now to regroup. Christine Milne proposed a ‘website of climate criminals’ that would include such names as Ian Plimer, Gina Rinehart, George Pell, Andrew Bolt, Martin Ferguson and the IPA’s John Roskam. This sort of name-and-shame is probably good politics for the Greens with their base, but it’s worth recalling that the Milne and her party voted against the Rudd government’s emissions trading scheme in 2009: they were on a joint ticket with Plimer, Rinehart, Pell, Bolt, Ferguson and the IPA.

The carbon tax is repealed but it is not dead. Bill Shorten has promised to take a carbon tax to the next election. Clive Palmer, who was a climate change sceptic as recently as the 2013 election, has had a Road to
Damascus conversion and is now seen holding press conferences with Al Gore and being closely advised by Australia Institute staffer and former Greens chief of staff Ben Oquist. Palmer has forced the government to retain much of the infrastructure around the carbon tax — the Clean Energy Finance Corporation, for instance, but most gallingly the Renewable Energy Target.

So the carbon tax is gone. But its associated policies are still in place — ineffective, wasteful, and unfortunately resilient.

Free speech is non-negotiable

The Abbott government’s decision, announced in the first week of August, to abandon its promse to reform section 18C of the Racial Discrimination Act is one of the biggest setbacks for freedom of speech — and the cause of liberal reform — in some years.

Not because the broken promise is highly consequential (although, obviously, it is that, as various section 18C cases have shown) but because it demonstrates just how hard it is to wind the clock back; just how hard it is to reverse the dilution of liberal freedoms.

Throughout the debate over section 18C, the Institute of Public Affairs has maintained that freedom of speech is a fundamental liberty. The word ‘fundamental’ is not a rhetorical flourish. Speech is the expression of the deepest condition of individuality: that of thought. It is our thoughts — our preferences, our values, our beliefs, our ethical and moral principles — that set us apart from the collective. Being prevented from expressing those thoughts is an attack on our individuality. It suppresses difference in the interests of the group.

Hence the significance of the Coalition’s 18C promise. The last few decades have seen a substantial growth in the number of limitations placed on the freedom of speech. Most iconic of these has been the increasing legislative enactment of the doctrine of ‘hate speech’.

Each Australian jurisdiction (with the exception of the Northern Territory) has its own form of racial vilification laws. The Commonwealth Racial Hatred Act, that introduced section 18C in 1995, was, and remains, the preeminent anti-hate speech law in Australia. And the most stringent. It is worth recalling that the Andrew Bolt case was originally going to be launched in a Victorian court under Victoria’s anti-discrimination law. However, a decision was made that the plaintiffs would have more success under the Commonwealth’s section 18C.

So repealing section 18C, or amending it in such a way that it was effectively neutered, as George Brandis’ exposure draft legislation would have done, would have been highly symbolic.

It was not for nothing that the promise was the hook on which George Brandis hung what he described as the ‘freedom agenda’. When Tony Abbott gave the original promise to repeal section 18C in its current form at an Institute of Public Affairs event in 2012, his speech was titled ‘the freedom wars’. Abbott’s oratory was stirring. The Coalition would be ‘freedom’s bulwark’ in government. Abandoning the section 18C promise was not like abandoning any other election promises in the usual way that new governments do. A bulwark is supposed to provide protection.

So there is a heavy degree of irony that the announcement that section 18C would remain on the books came in the middle of a press conference on national security reforms.

Section 18C was, in the words of the prime minister, ‘a complication’ that put ‘national unity at risk’. In this case the government was quite literally trading liberty for security. It was to drop its promise to restore freedom of speech in the hope it would encourage Muslim communities to assist it with anti-terror measures.

As a political tactic, this is a somewhat strange. Australia’s Muslim leaders did not hesitate to condemn some of the new proposals that they believed targeted Muslims unfairly. The government’s ‘trade’ didn’t survive more than a few hours.

But as a position on public policy it is bizarre. Peter Costello was spot on when he asked in the Herald Sun:

Does the Government believe there are community leaders whose commitment to their fellow citizens and the values of a civilised society is so weak they will not co-operate in preventing terror and murder if Section 18C is repealed? If that is the case we really do have a problem.

Let us hope our anti-terrorism strategy does not really hinge on this legislative quid-pro-quo.

But more critically: what does it say about Australia if a political party elected on a platform of ‘freedom’ — they used the word liberally — drops that platform as a bargaining chip for national security laws? Such laws are, after all, supposed to protect the liberties which have been discarded.

The case for repealing section 18C is as strong as it ever was. Support for substantially amending it — ranging from simply deleting the words ‘offend’ and ‘insult’ from the act to outright abolition of the section 18C — was found across the political spectrum. The Age, the Saturday Age, the Australian, the Herald Sun, and the Courier Mail editorialised against section 18C.

Left wing agitators, human rights lawyers, legal academics, public commentators, aboriginal community leaders, and journalists are all found opposing section 18C as it stands and supporting reform. Figures from Keith Windschuttle to David Marr to Antony Loewenstein agree the act must change. (A full list of supporters of change is available at freedomwatch.ipa.org.au.)

Yet here we are. In the end change has to be fought through the parliamentary system. There will be future cases under section 18C. The section is a very real constraint on our most fundamental liberty. Hopefully future governments will take the freedom of speech challenge seriously.

Free speech in a liberal democracy

Speech at ‘Free Speech 2014’, Australian Human Rights Commission, Sydney, 7 August 2014.

Australia is a liberal democracy and liberal democracies are founded on freedom of speech.

This was the intuition behind the High Court’s discovery in the early 1990s of our implied right to political communication.28 That right, in my view, is deeply inadequate.

But for our purposes today, I’ll point out that the right to political communication isn’t really a ‘right’, per se, at least not in the way that we are used to speaking about human rights: as universal, based on fundamental moral principles, and innate to our personhood.

It’s a more of a pragmatic legal workaround to a basic contradiction in Westminster government. The Parliament gets its legitimacy from the fact that it is freely chosen by the conscience and debate of free citizens. But the Parliament is able to write laws that determine the rules under which that debate may be conducted and what consciences may be publicly expressed.

Then again, if the right to political communication is all we are offered, I’ll take it.

Today I want to do two things. First, I want to briefly lay some foundations for the right to freedom of speech. These foundations are philosophical. You might even say ideological.

The last three years of free speech debate, beginning with the Andrew Bolt case, has been an ideological one, as it should be. Pretending that free speech is just a matter for lawyers to negotiate competing rights claims in court – or, worse, for human rights technocrats to arbitrate between different international human rights ‘instruments’ – is to pay lip service to human rights. Human rights are fundamentally political claims.

Second, I’ll connect these principles to a few examples of what I consider to be the more interesting and concerning limitations on free speech today. The great American legal academic Lee C. Bollinger once wrote that ‘free speech is not just a practical tool for making systemic repairs, but an affirmation of what we value as a people’. He went on, ‘the reason we shelter speech is as important as the speech we shelter’. The popular free speech debate is mediated through a thicket of metaphors and analogies. One of the most common is that one cannot falsely shout fire in a crowded theatre.

It is astonishing anybody still uses this metaphor: it was conceived as a justification for the suppression of socialist anti-war dissent during the First World War. The ‘crowded theatre’ was the American war effort. To falsely shout fire was to contentiously object to that war. If we insist on the use of metaphors to determine our ideas of free speech, then it is hard not to see the stubborn persistence of the crowded theatre as itself a metaphor for the way free speech limitations are almost always defences of the power of the state.

Freedom of speech is, ultimately, the outward manifestation of the deeper freedom of individual conscience, of thought. It is our thoughts – our preferences, our ideas, our faiths, our internal differentiation from the collective – that make us individuals, that make us human. A recognition of that forms the basis of pluralistic liberal democracy.

Free speech is not a tool to make the state function better, as the High Court’s reasoning suggests it is. Rather it is fundamental to our individual moral autonomy.

I understand that’s a bit wishy-washy. But talking about principles seems to be more productive than the opposite: the philosophically empty busy-work that constitutes most debate about human rights in Australia today – that is, measuring Australian law against international treaties and identifying where the two differ.

And on these principles Australia has a massive freedom of speech problem. Our defamation laws are heavy-handed and have a demonstrable chilling effect on speech. Our sedition laws are excessive. Our classification scheme is effectively a censorship scheme. Our communications regulator believes that its job is to adjudicate whether speech on radio and television is
sufficiently balanced. We were told that the federal government abandoned the internet filter a few years ago, but section 313 of the Telecommunications Act 1997 (Cth) operates exactly as opponents of the internet filter feared Labor’s policy would.

And last week we learned that a super-injunction can prevent us discussing the absolutely scandalous foreign activities of the most important economic institution in the country – a super-injunction that we are told is necessary to protect national security. Of course it is. The bottom line from that super-injunction is this: I am unable to discuss the unlawful activities of a government department at a national conference on free speech.

Let me briefly mention a few policy proposals on the cards that have substantial free speech implications. First is the government’s proposed Children’s e-Safety Commissioner. They will have the power to delete material from social media sites – the phrase is ‘rapidly takedown harmful material’. Bullying is a serious issue. But the proposal will offer no material benefit to children who are being bullied. It is a strong example of how moral panics ultimately manifest in attacks on speech.

Second is the proposed anti-copyright infringement scheme, which would allow courts to block – that is, censor – overseas websites from being accessible in Australia. Once again, how does this differ from Labor’s reviled internet filter proposal?

Finally it is worth dwelling on the new frontier in freedom of speech restrictions – government surveillance. The sensation of being watched – and the fear that private speech or expression is going to be recorded or scrutinised – makes people more reserved and less willing to participate in discussion. As one significant study concluded, ‘the threat or actuality of government surveillance may psychologically inhibit freedom of speech’.

This is something to reflect on since the federal government announcement that it was seeking to require internet service providers to retain records of their customers’ internet activity for two years. What websites would you be reluctant to visit if you knew that they were going on your two-year activity record at your Internet Service Provider (ISP), for any of Australia’s dozens of law enforcement agency or regulators or quasijudicial bodies to trawl through years later? What would you decide not to read, or watch, or look at in the privacy of your home? What links would you regret clicking? What emails would you avoid sending?

Mandatory data retention is, and will be, a truly repressive attack on free speech. That’s even before we start talking about its privacy implications. Or its cost.

The Abbott government came to the 2013 election promising to pursue what it described as a ‘freedom agenda’. In August 2014 it also announced that it was abandoning its promise to repeal section 18C of the Racial Discrimination Act 1975 (Cth). Apparently it would be too divisive to restore, in some small way, free speech, while introducing a policy, data retention, that will suppress free speech. This is incredibly disappointing.

So what is left of the freedom agenda? For my organisation, the Institute of Public Affairs, and its thousands of individual members, section 18C is still an iconic and unambiguous limitation of free speech. We will continue to fight to repeal it, whether under this government or the next.

The Roman historian Tacitus defined the essential attributes of free Roman citizenship as one who ‘can feel what we wish and may say what we feel’. Without such liberties, liberal democracy is weak, and our human rights are without protection.