Everyone Promises Less Red Tape, But Very Few Succeed

It pays to be sceptical about the promises of oppositions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These clever little ideas miss the broader issue.

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

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

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

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

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

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

War on Democracy

In 1953 a bitter Bertolt Brecht wrote, ‘Would it not be easier / In that case for the government / To dissolve the people / And elect another?’

With these lines, Brecht brilliantly captured the dripping contempt that some purportedly ‘democratic’ leaders have for those below them.

This contempt has only become more acute in recent decades. Brecht’s words were rich in irony. He was a citizen of the German Democratic Republic — a state democratic in name only — and wrote his poem in the aftermath of the Uprising of 1953, which was crushed by Soviet forces stationed in Germany.

By contrast, in 21st century Australia we enjoy all the trappings of a mature, well-functioning democracy. But our liberty makes the persistence of such contempt starker.

That contempt is a thread joining a huge number of recent debates. It ties the Gillard government’s proposed anti-discrimination changes with the brief furore over compulsory voting and paternalistic controls over what we eat and drink. The belief — widespread but never stated boldly — is that it is the job of democratic politicians to change the character of the people they govern.

In the 21st century, with all the cutting edge findings of behavioural economics, public health and organisational psychology, politicians no longer dream of electing a new people. They can just change them. With the judicious application of legislation and rule-making, Australians can be made better.

It’s hard to think of anything more undemocratic than that.

Changing the way we are

On 20 March 2013, the government finally admitted that its draft Human Rights and Anti-Discrimination Bill was bunk. The new Commonwealth Attorney General, Mark Dreyfus, announced that he had sent the bill back to his department for a rethink — effectively shelving it until after the next election, which, given the dire state of Labor’s prospects in March, is pretty much abandoning the entire project. The bill was toxic. Labor would not spend any more political capital on it.

But this was all the end of a long story. For the two months after the draft Bill was released in November 2012, the then Attorney General Nicola Roxon, other government ministers, and the taxpayer-funded human rights lobby were staunchly supportive of the bill as it stood. They wanted it to pass. They wanted its restrictions on our personal interactions and relationships to be given the force of Commonwealth law. The bill might be dead. But its profound consequences remain important: this is what the government, and its supporters in obscure lobby groups, actually wanted to do to the Australian public.

The draft anti-discrimination bill was truly radical. At its worst it would have made it unlawful to offend somebody because of their political opinions in any work-related area. It does other things (for instance, it reverses the burden of proof onto the defendant) but this is the most significant. The consequences would have been devastating for our interpersonal relations. It would have opened almost unlimited opportunities for lawsuits based on an individual’s opinions.

The legislation was so broadly, absurdly drafted that somebody could claim they were offended by anything as long as it was hypothetically possible that they could, in the future, be associated with somebody who had a ‘protected attribute’ — like a political opinion. This sounds ridiculous but that’s what the draft legislation said.

Most people do not expect to be sued by their colleagues. And the human rights lobby claimed that absurdities would be stopped by the Australian Human Rights Commission, which ‘conciliates’ each anti-discrimination claim before it goes off to court.

But risk management doesn’twork like that. We can only obey the law as it is written, not the arbitrary judgments of bureaucrats and courts. Had the legislation been introduced in its original form, every prudent human resources team would shut down controversial — that is, potentially offensive and unlawful — speech in the workplace. They just couldn’t risk it.

This, it seems, was the point. It was clear before the furious public reaction that this was intended to be a substantial and new era of litigation in the name of anti-discrimination; that the government and its supporters hoped to massively increase the number of anti-discrimination claims. In other words, they believed Australians should have more ways to take each other to court, more grounds on which to do so, and more chances at being successful.

The bill would have made litigation a central element in our interpersonal relationships. The constant threat of court action would hang over every Australian workplace — or anywhere that could conceivably be ‘work-related’. This would be a particularly insidious way to corrupt a society.

The bill, as written, presented to the public, and defended by Nicola Roxon for two months, was not a bill about protecting vulnerable people from discrimination. Anti-discrimination is a settled area of law. No, the draft bill created a new body of law. By fudging a crucial distinction between discrimination and harassment it created an entirely original offence: being disagreeable.

The terms offend and insult come from section 18C of the Racial Discrimination Act, the section which the Federal Court decided that Andrew Bolt breached in November 2011. This has the advantage of interpretative convenience (courts have already considered in detail what ‘offend’ means) but it also suggests a larger strategy.

When section 18C was added to the Racial Discrimination Act in 1995 the purpose was not merely to punish hate speech but to change attitudes. As an approving Senate Committee report argued, the section would ‘set a social standard for the community’. So section 18C is significant for more reasons than simply that it restricts freedom of expression.

In my book In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt, I argued that freedom of speech is merely the outward function of a deeper freedom: freedom of thought. Our ancestors described this liberty as freedom of conscience. The goal of legislation like the Racial Discrimination Act or the Human Rights and Anti-Discrimination Bill isn’t to restrict speech per se, it is to alter thoughts.

Indeed, these pieces of legislation are not aimed at simply changing the way we relate to each other, but changing the way we are.

John Stuart Mill made the point that to censor something wasn’t merely to infringe the liberty of a speaker, but the liberty of those who would like to listen. That is, those who might be convinced.

No one disagrees that racism is despicable. Discrimination on the basis of prejudice is despicable. But, in the words of Australia’s diplomats who opposed some of the international law that requires elaborate anti-speech laws, ‘people [cannot] be legislated into morality’. Law must reflect moral truths, certainly — it must protect life, liberty, and property — but if the law tries to impose its vision of an ideal virtuous citizen, it will inevitably overreach. Indeed, deliberately trying to manipulate the behaviour or beliefs or attitudes of a citizenry is outside the legitimate realm of action of a democratic government.

To see why, we need to look at another illustration of the contempt democratic politicians have for those who put them into power: compulsory voting.

Government as educator

When the Newman government in Queensland floated the idea of Queensland ending the compulsory voting system that was introduced there for the first time in Australia in 1915, the reactions were predictable. Labor luminaries from Prime Minister Gillard on down condemned it. In their view, to make the act of voting a matter of personal choice would be an assault on democracy.

This is obviously absurd. We are one of the very few countries in the world that have compulsory voting. Would Gillard describe the United Kingdom, or France, or Germany as undemocratic?

Support for compulsory voting is deeply felt: in the rare times that it is debated it quickly becomes emotive. We have always been forced to vote in Australia — at least for most in living memory — so it feels somehow intrinsic to democracy. To abandon it would be to move towards a non-democracy. Debates over voting tend to feature words like ‘tyranny’ and ‘dictatorship’.

But more than this, almost all debates about compulsory voting in Australia quickly move to the merits of democracy in the United States. America is seen as a society where a) extremists are in control, and b) the majority of the citizens are completely disengaged. In this view, compulsory voting is a legal mechanism to force people to be interested — a life-long version of compulsory education.

In this way, compulsory voting is seen as a form of mandatory engagement. If we weren’t forced to vote, so the argument goes, we wouldn’t care. We wouldn’t pay attention to politics, we wouldn’t inform ourselves of the best candidate, and many of us wouldn’t vote at all. As the Australian Electoral Commission puts it, by forcing us to vote we are taught the ‘benefits of political participation’.

This is a somewhat circular piece of logic. All compulsory voting does is paper over political disengagement; it merely obscures the phenomenon rather than eliminates it. (Political disengagement is typically measured by voter turnout, but if you make turnout compulsory then it is no longer a measure of disengagement.)

People have fought and died for universal suffrage over centuries. There was much blood split to win the right to vote. Australia took that right and turned it into a requirement. This was a very Australian thing to do. Our government has given us the right to vote but doesn’t trust us to use it.

In other words, we have failed the government, rather than the government has failed us.

Democracy

Compulsory voting upends the most basic principle of democratic government. All governments need legitimacy. In the case of modern totalitarianism, that legitimacy is brute force. Theocracies claim to take their legitimacy from God or Allah. Democracies, by contrast, draw their legitimacy from the consent of the governed.

Democratic governments are subordinate to the choices of those they rule — indeed, ‘rule’ is a somewhat archaic concept in democratic theory, considering that the wishes of the people are seen as superior to that of the executive government.

So, given that democratic legitimacy is founded on the consent of the governed, what right does a democratic government have to change the behaviour, or seek to control the speech, or thoughts of those that put it in power?

Brecht’s great irony — that governments wish the people could be dissolved like a parliament and replaced — is that it reverses the conceit of democracy. The East German democracy he lived under was a sham. Ours is real. But our political authorities nonetheless seem to believe that the people who elect them are incompetent and incapable.

Nanny State policies — those regulations which control what we eat or drink or whether we have food handling certificates at school fetes — epitomise this reversal of authority. There are many obnoxious Nanny State measures in modern Australia but think briefly about the inherent logic of the most recent and high profile one: are Australians so easily manipulated, so lacking in autonomy, that they are unable to handle the way a cigarette packet is coloured or decorated? The Federal government spent a great deal of time choosing the right shade of greenish brown to maximise the ugliness of its new plain packaging for tobacco products.

The assumption that a corporation could convince somebody to take up an unhealthy habit simply because of a shiny packet speaks poorly for the beliefs of our politicians about the Australian citizenry. If they can’t be trusted with colour, then how can they be trusted with the vote? How can a government, elected by these easily manipulated dimwits, ever consider itself to be a fully legitimate one?

There’s a basic philosophy at the heart of a democratic system. It’s a sort of political egalitarianism. All citizens, no matter what their opinions, what their intelligence or knowledge, have a right to contribute to the decision about who governs them. All citizens may not be equal in ability but they are equal morally and politically. The ignorant have as many rights as the informed. The intelligent have as many rights as the foolish. The modern contempt of the average citizen — the average voter — attacks the very heart of this philosophy.

Right of centre thinkers have conceived many critiques of modern democracy. Classical thinkers like the American founders worried that the majority can impose their preferences on the minority. Modern liberals worry that an increasing proportion of the population are dependent on state welfare benefits, and will unsustainably vote to increase their share.

But if we see democracy as a manifestation of the principle of political equality — that the ruled are superior to the rulers — then the problem with modern governments isn’t that they’re too democratic. It’s that they’re not democratic enough.

Anything You Don’t Say May Be Used Against You

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

Yes, “common sense”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Beware Elite Technocrats And Their Open Disdain For Democracy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Media Reform And A Missed Opportunity

Has Stephen Conroy forgotten why he began this media debate?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With Simon Breheny

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

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

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

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

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

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

Tea Party Paul’s Stand For Civil Liberties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Left Is Misguided When It Uses A Bill Of Rights To Distribute Wealth

How protected are our rights to free speech? Two rulings of the High Court last week have brought the question into focus.

The court upheld an Adelaide bylaw that bans preaching on a city street and a federal law that forbids offensive material being sent through the post. These rulings can be added to the Gillard government’s anti-discrimination bill (which would make it unlawful to offend someone’s political opinions at work) and the proposed regulation of newspapers and blogs.

All of these laws, existing and proposed, would be quickly slapped down in US courts as laughably unconstitutional. The American bill of rights is very powerful. The First Amendment unambiguously protects free speech, free press and religion.

Yet in Australia, bills of rights haven’t had much support by liberals and conservatives. The reason is simple. The First Amendment was written more than two centuries ago. Modern bills of rights tend to increase government power, rather than limit it. This is because our human rights advocates believe that to protect human rights we simply have to transpose United Nations treaties onto Australian law.

In recent inquiries, those advocates have called for a rights act to guarantee everything from free university to welfare – all because they’re in UN documents. The UN even thinks we have a human right to high speed internet.

Instead of protecting people from the government, these ”rights” are all about obligations – obliging taxpayers to give more money to the government so it can fund more stuff.

The distinction is important. America’s Bill of Rights starts bluntly: “Congress shall make no law” restraining speech or religion. It’s all about protecting people from their government. By contrast, the UN International Covenant on Economic, Social and Cultural Rights says governments must guarantee food, clothing, and housing; that governments have a responsibility “to improve methods of production, conservation and distribution of food”; that governments must ensure an “equitable distribution of world food supplies”.

In other words, governments should control more things, tax more things, redistribute more things.

If the left want to understand the reason their opponents are sceptical about modern human rights, well, there you have it.

What would a conservative or liberal bill of rights look like? It would have to be entrenched within the constitution. It would have to mean something.

Courts would be able to enforce it. Labor attorney-general Rob Hulls was very proud of introducing Victoria’s Charter of Rights in 2006 but the government can – and his government did – ignore that charter whenever convenient with no consequence. Why fill the statute books with motherhood statements? A bill of rights is a radical measure, not a tool for political self-congratulation.

Yet politicians don’t like the idea of a constitutionally entrenched bill of rights. It might prevent them from doing whatever they want. The Rudd government forbade the National Human Rights Consultation report (which received 35,000 submissions) from considering anything that would reduce Parliament’s “sovereignty”. But that’s the point – to stop Parliament from trampling our liberties. Anything less is a waste of time.

In Britain, Tories opposed to Tony Blair’s labyrinth Human Rights Act want to replace it with a minimalist British Bill of Rights. Their proposal would protect ”headline” liberties rather than a mishmash of economic and cultural aspirations. We could introduce something similar.

Such a bill would guarantee freedom of religion and association and protect people against incarceration without trial and all that good stuff. It could also have rigorous protection for property rights, for instance, and it would not dilute its right to free speech with a right not to be offended.

Yes: a bill of rights need not just be a wish list of the left. Let’s haggle.

Many conservatives object that a bill of rights would give unelected and unaccountable judges the ability to dictate public policy. Fair point. But that ship sailed a long time ago.

A century of High Court cases has taken our constitution in directions that would shock the founders. We no longer have any meaningful division of power between state and federal governments. The court has “discovered” rights in the constitution that are “implied” but not written down. Any conservative who believes we can restore a strict interpretation of the constitution is bizarrely optimistic.

So instituting a bill of rights wouldn’t be handing power to judges. They already have it. A bill of rights could take it back – allowing the Australian public to have a say on the fundamental rights with which Parliament may not tamper.

Immigration Election: We’ve Been Here Before

Prime Minister Julia Gillard will “put Aussie workers first”. Opposition spokesman for immigration Scott Morrison has called for “behaviour protocols” for asylum seekers in the community.

The 2013 election doesn’t just resemble the election of 2010. No, it looks like it will be an exact replica.

Both major parties made immigration central to their campaigns in 2010. Julia Gillard explicitly told the electorate that she did not believe in a “big Australia”. The Coalition went further.

The “stop the boats” chant has always been in part a proxy for more general concerns about population and infrastructure. The Opposition proposed to rename the Productivity Commission to the Productivity and Sustainability Commission, with a specific brief “to address population sustainability issues”.

(It’s hard to say what has become of this ludicrous proposal. The renaming appears in the Coalition policy notes leaked to Crikey mid last year, but not in the official, less detailed policy document in January this year. Perhaps we can expect it to be relaunched.)

So here we are back in Western Sydney talking about immigration. It’s as if no time has lapsed between the last election and today. We’re watching another game of rhetorical one-upmanship about foreigners.

Labor’s target is the 457 visa scheme. This class of visa allows businesses to bring in skilled workers temporarily where no local workers can be found. Launching her Rooty Hill week on Sunday night, the Prime Minister said she would stop “foreign workers being put at the front of the queue with Australian workers at the back”.

What nonsense. The Treasurer – who appeared with Gillard at Rooty Hill – is fond of reminding us that Australia is at nearly full employment.

Anyway, the idea that it is easier for a company to import workers on a 457 visa than hire readily available local ones is absurd. The 457 program is a complex regulatory process.

You can only hire a 457 worker for certain occupations. You have to satisfy the Immigration Department that you have spent a certain percentage of your payroll on approved training programs for Australian citizens. You have to demonstrate a strong commitment to hiring locals.

And, most importantly, if you hire someone on a 457 visa you have to offer them “no less than favourable” wages and conditions of employment as an Australian could expect. The program is specifically designed to stop businesses undercutting local wages with migrants.

With such complexity, 457 visas tend to be used only for higher-end jobs. Sixty-five per cent of all people who received a 457 visa in the last six months are either managers or professionals -the data is available here.

Their average 457 salary is $90,000 a year. In Western Australia, the 457 average is $104,000. (The average salary in Australia is around $72,000.)

On New Matilda yesterday, CFMEU boss Dave Noonan said his union is worried about workers being exploited on 457 visas. Employers sometimes try to skirt their legal obligations. This is a fair concern. Laws should be obeyed. Contracts should be honoured.

But that’s not the message Gillard was selling in Western Sydney. No, she was trying to stoke resentment. How else to describe a claim that foreigners have it better – are given better places in the queue – than locals?

The Coalition’s target is asylum seekers. They’re selling pretty much the same message. Scott Morrison’s claim that asylum seekers need “behaviour protocols… with clear negative sanctions for breaches” in light of an alleged sexual assault by a Sri Lankan asylum seeker. This is low and opportunistic.

Obviously, the only behaviour protocol in a liberal democracy is the law. Sexual assault is against the law. The clear negative sanction for breaching Australian laws against sexual assault is prosecution.

For the Coalition, Morrison’s comments are counterproductive in two ways. First, they undermine the argument that stopping the boats is solely about protecting the lives of refugees. Those who legitimately hold that view should be very annoyed by the Morrison proposals.

Second, they illustrate the Opposition doesn’t understand why it is in a winning lead. Julia Gillard’s Government is not terminal because it is too nice to asylum seekers. It’s terminal because of the fallout from the leadership spill, and the confusion and compromise which have crippled both policy and message. Gillard has a crisis of legitimacy she can’t shake. If a new Coalition government confuses what they campaigned on with why they won, Tony Abbott won’t last long in the Lodge.

On the Drum in February I argued the Government’s protectionist manufacturing policy isalmost entirely symbolic. The 2010 election was fought on these sorts of symbolic grounds. Julia Gillard may have declared her antipathy to big Australia but did nothing about it. Hers was a message for punters. It wasn’t instructions for legislators.

Both Gillard and Morrison’s comments are symbolic too. The only policy foundation behind Gillard’s claim that she plans to push Aussie workers to the front of the queue is a few tepid compliance adjustments to the 457 visa program. The Immigration Department thinks the scheme is working pretty well. The Rudd and Gillard governments have broken immigration records.

And the asylum seeker debate has been so fudged that it isn’t clear how much harder a Coalition could crack down on refugees. It certainly isn’t clear what policy goal that crackdown would achieve. What would be the purpose of imposing behaviour protocols, except as a political marketing tool?

You can almost forgive the 2010 election for its eccentricities – a new prime minister went to a quick election and everyone had to improvise. But the parties have had nearly three years to offer something more substantial than anti-immigration resentment.

The Biggest Vested Interest of All: How Government Lobbies to Restrict Individual Rights and Freedom

Introduction: The Federal Treasurer Wayne Swan wrote in The Monthly in March 2012 that:

Australia’s fair go is today under threat from a new source. To be blunt, the rising power of vested interests is undermining our equality and threatening our democracy.

But not all vested interests are private corporations. This paper draws attention to two statutory agencies of the Commonwealth Government that have an explicit, legislatively-defined functions to lobby and advocate for public policy change – the Australian National Preventive Health Agency and the Australian Human Rights Commission.

Available in PDF here.