Australia’s March To Free Speech Has Begun

The High Court’s decision in Unions NSW vs New South Wales is one of the most significant decisions for democracy and human rights in Australian history.

It’s on par with the 1951 decision which quashed the Communist Party Dissolution Bill.

It reveals a High Court inching – slowly, reluctantly, unhappily – towards a full-blown recognition of the human right to freedom of speech and freedom of association: the sort of uncompromising liberties expressly found in United States’ First Amendment.

The decision was released just before the Christmas break. The High Court found that the New South Wales ban on organisations donating to political parties and third party political campaigning were invalid, as they violated the constitution’s implied freedom of political communication.

I wrote about the NSW laws in The Drum in February 2012. They were a disgraceful and transparent manipulation of the electoral system designed to cripple the Labor Party and its union-centred funding model.

Of course, like all disgraceful and transparent manipulations of the electoral system, they were dressed up in woolly sentiments about enhancing democracy and reducing corruption.

It is a rare law that can unite in opposition the union movement, the Institute of Public Affairs, and environmental groups (the law was particularly damaging for federated bodies like the Wilderness Society).

But it’s an even rarer law that can inspire the High Court to trigger its free speech veto.

In a series of cases in the 1990s the High Court discovered a ‘freedom of political communication’ buried (‘implied’) deep within the Australian constitution.

Of course, there are no words in the constitution that say any such thing, but in 1992 the High Court decided the freedom was in there.

The court’s reasoning went like this. The Australian Constitution is a democratic constitution. A democracy is predicated on the free flow of communication about political issues. Therefore the document is predicated on the existence of some form of freedom to talk about politics – a freedom of political communication.

But, as the High Court has always at pains to say since, that freedom is not a general right to freedom of speech for individuals. It’s not like the First Amendment. No, it’s about protecting political communication – and political communication alone – from legislative interference. There’s nothing in the Australian constitution to allow citizens to sound off on everything willy-nilly.

Over the past two decades, the court has kept its free speech lid screwed on pretty tight. In recent years it has declined to protect the speech of a group of sidewalk preachers in Adelaide, the Islamist Sheikh Haron, and Lex Wotton, one of the Palm Island rioters.

They’re probably worried where this whole implied freedoms thing will lead.

And rightly so. The court’s foray into the political philosophy of democracy is embarrassingly underdeveloped. Our constitution isn’t just a constitution for a democracy. It is a constitution for a liberal democracy – a country where free and morally autonomous individuals mutually consent to democratic government.

And that implies that those free individuals have rights as free individuals. Australian citizens are not just conduits for electoral debate. Adrienne Stone of Melbourne Law School makes this argument here. As she writes, there is a plausible – I would say fundamental and intrinsic – relationship between personal individual autonomy and liberal democracy. The former is the foundation of the latter.

If the High Court were to recognise this relationship, then the limited freedom of political communication could be transformed into a broader right to freedom of speech.

The constitution doesn’t only imply electoral democracy. It implies individual liberty.

Twenty years ago the judiciary committed itself to divining political philosophy between the lines of the constitution. Perhaps it should not have started down this path. But now that it has, it should go where the path leads.

The Unions NSW case suggests they might be doing so. It is remarkable for a number of reasons.

First, the court has decided that the freedom of political communication applies to the states as well. That’s a big deal. The previously strict bounds of the freedom are being pushed out.

The US Supreme Court only started imposing the First Amendment on state laws in the 1920s. Indeed, the First Amendment only really became ‘activated’ in the twentieth century. It had to grow into what it is today. Australian free speech rights are embryonic – but they’re heading in the same direction.

Second, the court recognised that money can be speech. The way we spend our money is sometimes a form of political expression. This apparently horrifies many people on the left. But it is obviously true. It takes money to buy a T-shirt with a political slogan on it. It takes money to publish a book. It takes money to host a website. To ban the money is to restrain the speech that money was to bring about.

The intuition that money and speech are related is why things as disparate as the proposed secondary boycott laws and the ban on David Hicks profiting from his memoirs are equally objectionable. They limit speech by regulating its financial side.

Finally, and most interestingly, the High Court’s decision quietly suggested something very important, even revolutionary: corporations have as much right to speech as anybody else.

Of course corporations are not people. Corporate personhood is just a legal construct to facilitate contracts and lawsuits. Stop hyperventilating.

But corporations are made of people.

And just because people get together to form organisations doesn’t mean they lose their rights once they have. As the Unions NSW case suggests, businesses, unions and non-profit groups have much in common. They are all voluntarily formed by individuals to achieve a collective goal. All legitimately participate in political life.

This is one of the reasons that the US Supreme Court is coming around to an understanding that there is no clear, coherent distinction between ‘commercial speech’ and regular speech.

Of course, Americans have a rich body of case law explaining the extent and limits of the First Amendment. Australia’s free speech corpus is fragmented and arbitrary, and cripplingly limited by the High Court’s reluctance to follow its own logic where that logic leads.

So it’s still not totally clear what our freedom of political communication actually means. But after the Unions NSW case, we know that, whatever it means, it means a great deal.

A Time To Be Thankful For The Market Economy (Really)

The State Library of Victoria holds an engraving from 1865 titled ‘Christmas in Australia’. About two dozen people, presumably an extended family, are having a Christmas picnic in what appears to be Ferntree Gully in Victoria.

At first glance, their Christmas is not too different from ours. Food, family, the outdoors; it looks lovely.

But the celebration depicted in the engraving would have been an enormous, expensive, time-consuming, and overwhelming logistical task.

Ferntree Gully is more than 30 kilometres from the Melbourne CBD, and in 1865 almost everybody lived in what we now think of as Melbourne’s innermost suburbs – Richmond, lower Carlton, North and West Melbourne.

We can see three horses and in the distance a carriage. That wouldn’t have been enough for 20 people. And carriages cost a lot of money.

The journey to Ferntree Gully would have taken hours along very poor dirt tracks. They would have had to bundle up everything: children, rugs, sporting equipment and pets. To say nothing of the food, which would have to be kept safe. (Well, maybe. This was before widespread understanding of the germ theory of disease.)

The journey probably started the day before. Hence the tent in the background.

When we think about how our lives differ from our ancestors, it’s easy to focus on the big things: television, telephones, cars, and electricity.

That is, consumer comforts. The stuff that makes individual life less arduous.

But we forget how economic growth and technological change has made our relationships closer, easier, and cheaper to maintain.

A century and a half later, the classic Australian Christmas is no longer a trip to the bush but a suburban backyard barbecue. That change has only been possible thanks to the market economy and consumer society.

How? Let’s take it one word at a time. Suburban, backyard, barbecue.

Obviously, Australia’s sprawling suburbs rely on cheap ubiquitous motor transport. (Trains and trams can only service a few kilometres either side of their tracks.) A short trip to the developing world should be enough to demonstrate that car ownership indicates wealth.

Backyards, too, are a sign of prosperity.

As the food historian Barbara Santich points out, it was relatively recently – that is, after the Second World War – that backyards were turned over from home food production and gardening to leisure. The reason was affluence, as well as the convenience and availability of supermarkets.

Hence, the 1865 journey to Ferntree Gully. The Australian backyard of our ancestors was an economic asset, not a social setting.

This remained the case well into the twentieth century. A short book from 1928 explains to Britons the difference between Christmas in Australia and in the mother country. The book tells the story of the “long trek” taken by Australians on Christmas Eve to the mountains and the sea. Cars would be heavy loaded with tent-poles and gramophones and food. And, of course, spare tyres. Celebration would start at dawn the next day.

Finally, the barbecue. The barbecue is a remarkably recent invention. Its pre-war equivalent was the “chop picnic”, where meat was cooked on a small fire in the ground. The figures in the background of ‘Christmas in Australia’ are probably having a chop picnic.

When backyards were freed up, Australians started building permanent barbecues out of brick fuelled by firewood. (Nobody wants an open fire in their backyard.)

The free standing portable metal barbecue fuelled by a gas bottle became prominent in the 1970s. Gas barbecues are better in almost every way: they’re cleaner, heat faster, and, as they cool down rapidly, they’re safer too. It was only thanks to better materials, cheaper energy and technological innovation that the free standing gas barbecue became the Australian norm.

And of course, they’re still getting cheaper. The 1978 barbecue shown here cost $670 in 2012 dollars. These days you can pick up the same thing for $90 and a gas bottle for $30.

So our traditions change according to our prosperity. Our relationships do too.

That family in Ferntree Gully 150 years ago were – as European settlers – at least a four-month journey on an iron clipper ship away from the family they may have left behind. Communicating with their relatives by letter would have taken twice that.

In the 1930s the situation was much better. An Australian wanting to travel to Europe could have flown. But aviation was in its infancy. The flight would have been extremely high cost – far too high for a mere holiday – and taken more than a week.

Today we can cross the planet in 24 hours. And, with the internet, communication is instantaneous. That technological change has made seeing and appreciating our family much cheaper.

The cost of sending a gift to a family-member across the other side of the world by sea freight has declined by two thirds between the 1930s and 2013.

Flights to see family members are a tenth of what they were.

An international phone call is one 100th of what it was 85 years ago. If we use Skype, it is effectively zero-price. Letters, too, cost nothing online.

Australia is a very rich country – one of the richest in human history.

And there’s no better time to reflect on how that wealth has made it easier to have stronger relationships than Christmas.

The Coalition’s Budget Decisions Are All Its Own

There was a disturbing detail in a Dennis Shanahan piece earlier this month. Describing concerns within the ministry about the performance of the government, Shanahan wrote, “It’s fair enough to argue that ‘getting to Christmas’ is all that matters now.”

“Getting to Christmas.” Almost an exact mirror of the motif of the Gillard Government, that “clear air” was just around the corner.

Labor was a tired government trying to be optimistic. By contrast the Abbott Government should be – and is – a fresh new government facing many years at the helm.

Not every government is treated to as much wall-to-wall coverage of its hundred day anniversary as the Abbott Government has been. But then, not every Government has had to learn so many lessons in as short a space of time.

One of those lessons is “try to avoid having former National Security Agency contractors leak Powerpoint presentations of Kevin Rudd-era surveillance missions on Indonesian politicians”. But too much of the Government’s pain has been self-inflicted.

The expenses scandal didn’t have to hurt. Yet the government let it stretch for more than a month by refusing to engage.

The Gonski episode – let’s be tactful and call it an ‘episode’ – undermined the Government’s most core promise: that it would not break promises.

But probably the most damaging was Joe Hockey’s decision to deny foreign investment to GrainCorp.

This decision stunk in many ways. First, it suggested that the Nationals tail was wagging the Liberal dog. Second, it implied that the Government’s interest in economic reform was casual at best.

And finally, it showed that the Coalition was no better than Labor for business. It was just as willing to play politics with the economy, and completely unwilling to stand against Australia’s universally reviled foreign investment central planning.

The GrainCorp decision would not have cost the Government any votes. But it cost a lot of goodwill. The Wall Street Journal excoriated the government in an article titled “Tony Abbott’s protectionist retreat”. Even worse was the subtitle: “Australia appears to be closed to some kinds of business.”

GrainCorp has a silver lining. The fallout made it much less likely that the Government would increase car subsidies or buy out Qantas. The Coalition’s free market wing would not be able to stomach that.

After all this drama, it’s no mystery why Tony Abbott’s Government looks older and more tired than it is.

When the Government first came to power, Coalition spinners proclaimed Abbott wanted to slow down the news cycle, keep politics off the front pages, and restore calm to national political life. Unlike his Labor predecessors, the Prime Minister would only talk when he had something to say.

This plan was fundamentally misconceived. The news cycle isn’t something that can be sped up or slowed down from Canberra.

It wasn’t the Prime Minister’s Office that built the content-hungry 24-hour news networks. The Prime Minister’s Office hasn’t been hollowing out the newspapers’ ad revenue base. Nor is it to blame for the technological change that moved our news consumption online and created the demand for a constant flow of information.

No, the 24-hour news cycle was not Kevin Rudd’s fault.

Don’t get high on your own supply. It’s a saying that applies as much to political spin as it does to selling drugs. And it’s a saying worth remembering as the government tries to manage its way through today’s release of the Mid-Year Economic and Fiscal Outlook.

Getting the budget under control is the central task this government was elected to perform. More than stopping the boats, and more than the carbon tax, it was Wayne Swan’s budget mismanagement which created the aura of policy dysfunction emanating from Labor.

But now the Coalition is talking, as it did at the tail end of the election campaign, about being unable to get the budget into surplus for another decade.

If that turns out to be the case – if the Coalition run deficits for 10 years, longer than the Labor government did – the failure won’t be Wayne Swan’s, it will be Joe Hockey’s.

MYEFO is not “Labor’s last budget statement”, as the Prime Minister claimed yesterday. It is the Coalition’s first.

The Government has been on the back foot virtually since it was sworn in. Its agenda was set by Julia Gillard and Kevin Rudd: boats, debt, carbon tax.

And fair enough, of course, at such an early stage in the electoral cycle. But its fixed agenda has left them struggling with the issues like foreign investment, car subsidies, and education.

What sort of government will the Abbott Government will be? Unfortunately, after 100 days, that has become more uncertain.

Scrapping The Debt Ceiling Is No Victory

Sometimes great things happen by accident. The debt ceiling was one of those things.

Back in June 2008, then-assistant treasurer Chris Bowen pushed through Parliament the obscurely named Commonwealth Securities and Investment Legislation Amendment Bill.

The worry at the time was that the demand for Australian government debt was out-stripping the supply. (The past is another country, as they say.)

There were only $50 billion worth of Treasury bonds on issue, and the financial sector wanted more. So the government complied. But, as this was the era in which Kevin Rudd was an economic conservative, the government put an economically conservative cap on the increase: $75 billion.

Thus was born the debt ceiling. It had a short and unhappy life.

The ceiling was bumped up to $200 billion to accommodate the big stimulus package in February 2009, and bumped up again in 2012 to $300 billion.

Yesterday, the Coalition government and the Greens abolished it entirely.

This makes sense from the Greens, for whom fiscal prudence is not one of the higher political virtues. But the Coalition has spent the past half decade banging on about debt and deficit. And now they have eliminated one of the few tools to get the budget under control in the long term.

The debt ceiling was a rare example of a fiscal rule in Australia, an explicit constraint imposed on the government’s financial power.

The purpose of a debt ceiling is to fight the natural proclivities of government to run persistent deficits. There’s every incentive in politics to spend money but very little to save it. I explained this dynamic in the Drum during the election campaign. Because spending is popular and taxing is not, deficits are the inevitable result.

Yes, the debt ceiling wasn’t much of a ceiling. It didn’t stop government spending more than it earned. Labor raised it twice, and – if the Greens had not pushed for its abolition – the Coalition would have raised it again.

But that’s not the point. A debt ceiling is an assurance that going further into debt has at least some political cost. It helps at the margin.

And in that sense, Australia’s debt ceiling was very effective. From the opposition benches, Joe Hockey and Tony Abbott tore strips off the hapless Wayne Swan when he raised the limit in 2012. It confirmed everything the Coalition had been saying about the irresponsible Labor government. Swan would not have enjoyed asking Parliament for his increase. The debt ceiling helped keep his budget troubles in the news.

Australian politicians like to say Parliament should be supreme and sovereign. It has been claimed in recent weeks that a debt ceiling is somehow anti-democratic – Parliament has an absolute right to spend as it sees fit without any roadblocks being placed in its way.

Well, they would say that.

But that this argument has been seriously entertained across the political spectrum goes to show how poorly the commentariat understand – or are even aware of – elemental political theory.

For one, such an argument gives the legislature a moral authority it does not deserve. Governments need rules which govern their operation. A government without rules is an autocracy.

That’s what constitutions are for. The Commonwealth Constitution is really just a long list of things the government can and cannot do.

Some fully democratic constitutions place even stricter limits on what democratically elected politicians may do. The Bill of Rights in the United States constitution violates the sovereignty of the legislature by preventing politicians from interfering with the liberties of its citizens. That’s no bad thing.

A bill of rights and a debt ceiling are both imposed to keep a government from doing things that governments tend to do: restricting liberties and spending more than they tax.

No wonder governments are reluctant to adopt such rules.

The US debt ceiling has been raised more than a dozen times since 2001. It has been a constant focus of intense partisan wrangling and brinkmanship. Every time the ceiling is approached, the Congress and White House go into crisis mode.

This is how it should be. The periodic battles over whether to raise the debt ceiling are the only time in which the Congress and White House seriously come to terms with how badly they have ravaged US government finances over the past decade.

The debt ceiling isn’t to blame for this chaos. No, the real crisis is that caused by the Bush and Obama administrations’ financial gluttony.

Abolishing the American debt ceiling would only allow US politicians to pretend the debt problem doesn’t exist. Just as abolishing the Australian debt ceiling has released some of the pressure on the Coalition to get the budget back into line.

And if there isn’t enough pressure, it simply won’t happen.

A Reputation For Competence Must Be Earned

Tony Abbott wants everybody to know he’s running an “adult government”. This is a mistake.

That story is responsible for the strangely flat-footed response to the two scandals the Coalition has faced in government so far: expenses and spying.

To both, the Prime Minister’s defence has been a variation of “that’s just the way the world works”.

For nearly six weeks, Tony Abbott tried to bat the expenses scandal away. His colleagues suggested that weddings were more business than pleasure. But the ride-it-out, nothing-to-see-here strategy didn’t last. After letting the expenses issue fester for more than a month, the Government announced a crackdown in mid-November.

And Tony Abbott’s first response to the reports Australia had spied on the Indonesian political leadership was, “That’s hardly a surprise. It’s hardly a shock.”

In other words, the adults already knew. And adults don’t apologise for doing adult things.

This is an audacious new crisis management technique. Don’t deny the scandal. Don’t deflect. Instead, openly admit it. But admit it with a knowing shrug. Spies spy. Some expenses are questionable. So what? That’s just how it is.

It’s audacious, but it hasn’t been particularly effective. The Indonesian government found our Prime Minister’s reaction somewhat inadequate.

You may have missed it, but the Carbon Tax Repeal Bill was introduced to the Parliament on Wednesday last week. Just think how frustrating it must have been for Coalition strategists to watch the Indonesia spy scandal unfold at the exact time they’re trying to execute a political manoeuvre they’ve been preparing for four years.

The Liberal Party sent around campaign-style emails to inform its supporters of the tax’s impending repeal. Abbott made a YouTube video trying to goad the Senate into action. The Coalition is working hard to pin high electricity prices on Bill Shorten.

Despite all that, the carbon tax repeal has been overshadowed by Jakarta’s unhappiness.

The whole adult government thing was only ever supposed to be a critique of Labor’s internal turmoil. The point wasn’t that Tony Abbott and his team were particularly mature. It was just that the Labor Party was uniquely immature.

Recall that the best explanation for the otherwise inexplicable June 2010 spill is still that Kevin couldn’t get along with the other kids in the playground. This diagnosis became a big part of Coalition thinking. An internal Liberal Party document described Kevin Rudd as a “self-centred two-year-old in an adult body”.

It’s a mistake to assume a story that works on the campaign trail makes sense in government.

The Abbott government is full of former Howard government ministers. But most of them made their careers in the later years of that government.

They received their senior leadership roles after John Howard had held office for many years, after he had been firmly entrenched as an incumbent government, after he had built a degree of trust – that is, after he had proven to the voters that he and his team were adults.

A reputation for competence has to be earned, not assumed. The Abbott government is trying to skip this crucial step.

Sure, scandals come and go. They chip the edges off a government but rarely damage the foundations. A few months from now nobody will remember the expenses affair. The Indonesian relationship will recover.

The Coalition’s stubborn attachment to its campaign narrative could have more important longer-term consequences. Just ask Malcolm Fraser.

Fraser also came to power after a frenetic, unpopular, dysfunctional, and short-lived Labor government. His story in 1975 was the same as Tony Abbott’s in 2013. To vote Coalition would be to vote the adults back in power.

Yet once the Coalition was back on the Treasury benches they drifted. The aim had always been to aggressively break apart the Labor government, not develop an agenda for reform.

The Fraser government is now chiefly remembered in Liberal circles for missing the opportunity to open up the Australian economy.

Under Fraser the Coalition was slow and methodical. Take its approach to the stiflingly over-regulated financial sector. Malcolm Fraser first announced he would hold an inquiry into the financial system at the 1975 election. Yet it was only in 1983 that his government begun the process of opening the Australian market up to foreign banks. By that time it was too late. Paul Keating had to do it for them.

Tony Abbott has repeatedly promised to take any big reform proposals to the next election, rather than springing them on an unwilling public. Again, this only makes sense in comparison to Julia Gillard’s broken carbon tax promise.

Yes, the Coalition needs to get out of the shadow of the last government.

Queensland Party Crackdown Out Of Control

Every government has a reform program of some description. The reform program of Campbell Newman’s Queensland government is to expand, to a ludicrous and dangerous extent, the powers of the police.

Admittedly, the title of the Police Powers and Responsibilities and Other Legislation Amendment Bill doesn’t have the same sort of grunting aggression as the Vicious Lawless Association Disestablishment Bill, which was passed earlier this year to target bikies.

But for all the absurdities of the anti-bikies legislation, the bill currently being considered by the Queensland parliament is probably worse.

The bogey-man in this bill is “out-of-control” parties. No doubt you can conjure up such a threat to public order in your mind. Hundreds of drunk teenagers spilling out on the street and damaging nearby property.

But according to the draft bill, a party is a gathering of twelve or more people. And it is considered out-of-control if three people at that party do something like be drunk in a public place, cause excessive noise, unreasonably block the path of a pedestrian, litter in a way that might cause harm to the environment, or use “indecent” language.

The punishment for holding a party that gets out-of-control? A $12,000 fine or a year’s jail. In other words, a party host is punished for the actions of party guests. For good measure, the bill allows police to enter property uninvited without a warrant.

Out of control parties are a classic moral panic. They involve teenagers. They involve alcohol. They involve new technologies – house parties are now being organised on social media. This apparently makes them worse than they used to be.

Of course before Twitter and Facebook there was the text message. People panicked about text message parties too. And before text messages? Well, teenagers clearly found some way to organise wild parties that ended in arrests.

Modern police forces have existed since the nineteenth century. For two centuries parliaments have been loading the criminal statutes up with new offenses. According to the government, “the ever increasing size, frequency and societal impact of these out-of-control events in recent times has necessitated the development of specific legislation”. Yet everything that makes an out-of-control party out-of-control is illegal already.

It is already illegal to be drunk and disorderly. It is already illegal to riot. It is already illegal to harass pedestrians, use indecent language, breach the peace, be a public nuisance, threaten another person, throw a bottle, damage property, assemble unlawfully, supply minors with alcohol, fight, show your private parts in public, be a hoon, light fireworks, endanger the safety of another individual, litter, trespass, and be excessively noisy.

A recurring feature so many legislative proposals in our modern era is that they mirror existing offenses. At best, this makes them redundant. At worst – as in this anti-party bill – they offer prosecutors and law enforcement officers a menu to pick and choose whatever charge will meet with the greatest punishment.

In other words, they vest police officers and prosecutors with enormous discretion to act, arrest, and charge however they like. It has to. There’s no way the Queensland police could enforce the law, as written, on any of the innumerable parties that occur every weekend across the state. Three people swearing at a party of more than a dozen guests that annoys the neighbours? Hard to imagine a party that wouldn’t fit this criteria.

A basic tenet of liberal democracy is that politicians – the representatives of the people – write the laws to shape the society they want. The permanent, administrative arm of government merely enforces those laws, neutrally and consistently.

That’s the ideal, anyway. But not all statutes are enforced equally. The police, and their prosecutors, have an enormous amount of discretion about what laws they chose to focus on. (Hence the periodic “crackdowns” on jay-walking or speeding. If all laws were enforced at all times, there would be no need for crackdowns.)

No matter how many rules we impose on police work, discretion is inevitable. Inevitable but not desirable. A liberal democracy is a government of laws, not a government of men, as James Adams said. As far as possible, we don’t want to trust justice and our liberty to the judgment of fickle individuals.

Police officers are no better or worse than the rest of us. There are bad eggs in law enforcement, as there are in the general public. And good eggs can sometimes have bad days. Queensland’s anti-party legislation empowers good eggs and bad eggs alike.

As does the anti-bikies legislation, which is so over-blown that it borders on surrealism. Such laws invite the sort of miscarriages of justice that a liberal democratic legal system should strive to avoid. Australians who don’t live in Queensland should be paying attention too.

One feature of Australian federalism is that states learn from each other. A law in one state is apt to be copied by another state. We saw anti-bikies laws replicated across the country earlier this decade. No question that all state governments will consider imposing Queensland-style laws themselves.

Defending his out-of-control parties bill, the Queensland Police Minister has argued that “the majority of people who do the right thing have nothing to fear”. Well, that’s not the way the bill is written. Not if the letter of the law is enforced. No free society should rest their liberties on the discretion of the agents of the state.

Freedom: The Forgotten Human Right

George Brandis is right. Sure, the phrase ‘the freedom agenda’ sounds a bit naff. But a reorientation of public policy towards fundamental civil liberties is long overdue.

Australia’s well-funded human rights establishment has completely vacated the field on basic rights like freedom of speech, freedom of conscience, and freedom of association.

Brandis’ freedom agenda consists of two major proposals.

First, he wants to reform the Australian Human Rights Commission to include at least one freedom commissioner along with the six – yes, count them, six – commissioners dedicated to anti-discrimination and social justice.

Second, he wants to repeal section 18C of the Racial Discrimination Act, the provision which Andrew Bolt was famously found to have breached in 2011.

More on 18C in a moment. The first idea is the most important one. Institutions are more powerful than laws.

It is utterly indefensible that a body charged with protecting the great pantheon of human rights – according to its enabling legislation, those listed in the United Nations’ International Covenant on Civil and Political Rights – should be so myopically focused on anti-discrimination.

That Brandis’ plan to add a freedom commissioner – maybe just one, against six – is even in the slightest bit controversial demonstrates how skewed this body has become.

Here’s an exercise. Let’s grant the commission the benefit of the doubt and accept it is statutorily obliged to weigh the right to protection against discrimination against the right to free speech. (Somehow anti-discrimination always seems a bit weightier, but no matter.) Yet even when such a balance does not need to be struck, the commission does not bother itself too much with free speech.

Take one of the most serious threats to free expression of the last decade: Stephen Conroy’s internet filter.

The Australian community has been debating this for the better part of a decade. But the first mention the commission made of internet filtering was in September this year – that is, long after it was dumped, and after the government that proposed it was dumped.

Nor has the commission stepped up to the plate on the censorious nature of Australia’s film and literature classification scheme. In fact, the few times it has mentioned classification, the commission has proposed expanding classification to include racism (see, for instance, here).

The commission harbours a systemic, consistent, and unforgivable bias against some of the key rights it is supposed to protect.

Brandis’ problem is that the human rights commission is probably unreformable. But that’s OK. It’s almost certainly unnecessary.

The commission’s silence on key liberty questions demonstrates that. Civil society organisations exposed the internet filter’s threat to our rights, not the government’s official human rights watchdog.

So if the human rights community seriously can’t abide a freedom commissioner, then the commission ought be put out of its misery and abolished.

(At Crikey, Bernard Keane has argued we still need the commission’s tribunal functions to adjudicate discrimination claims. Perhaps. But if so, let’s spin off an anti-discrimination tribunal, and stop pretending it is anything but a minor specialist wing of the judiciary.)

Over the next few months we’ll be able to watch the commission make the political case for its own abolition better than any outsider could.

Section 18C of the Racial Discrimination Act is one of the commission’s darlings. They are going to oppose its repeal vehemently. See this piece in Fairfax papers over the weekend by the new race discrimination commissioner, Tim Soutphommasane.

The Coalition has promised to repeal section 18c “in its present form”. The present form makes it unlawful to offend, insult, humiliate and intimidate a person or group on racial or ethnic grounds.

There’s an open question as to whether the Abbott Government will just delete the first two words – offend and insult – or all eliminate the whole section entirely.

It’s not clear what the former approach would achieve. Judges have unhelpfully preferred to read all four words together, rather than distinguishing each word individually.

Nevertheless, the most egregious sort of acts which could be considered to be humiliation and intimidation under section 18C are also covered by other state and federal statutes. There are many laws against intimidation, disorder, stalking, and offensive conduct – to say nothing of state racial and religious vilification laws.

Soutphommasane rightly says section 18C has been used against people who aren’t conservative columnists. But those other uses do it no credit.

I wrote about one section 18C case in the Drum, which targeted a news website for anonymous comments.

In September, another case in the Federal Court fined a lawyer $12,500 for calling a security guard a “Singaporean prick” four years ago, and telling them to go back to Singapore. Foul and offensive, yes. But a society that relies on years of litigation to patrol the boundaries of civility is not a healthy society.

Now there’s a looming case against the anti-Israel Boycotts, Divestments and Sanctions campaign. A judge will decide if BDS is anti-Semitic too. Then it will be “official”.

In such a way, we substitute political and moral argument for lawyers and legal acrobatics.

Of course, any freedom commissioner worth their salt would be highly critical of conservative governments. They would oppose the Queensland Government’s bikie laws, the New South Wales government’s restrictions on union campaign spending, and the national security state’s proposed mandatory internet data retention scheme.

Then they would target our out-of-control defamation laws.

But these are contentious things. Perhaps it’s safest just to eliminate the Australian Human Rights Commission altogether.

Never Trust The ‘Diary’ Of A Political Spinner

Diaries claim to reveal more about their author than a traditional memoir. They usually reveal much less.

Hopefully Bruce Hawker’s diary, published this week as The Rudd Rebellion: The Campaign to Save Labor, is not, in fact, an accurate account of the thoughts of Kevin Rudd’s chief strategist during the 2013 campaign.

If it is, then Hawker has a crippling lack of self-awareness.

Take just one example. Hawker does not explain one of the most bizarre and ludicrous decisions Labor made throughout the first few weeks – to run a scare campaign on the GST. The only justification for this scare was the Coalition was going to conduct a broad tax review.

On this thin hook Rudd hung almost his entire economic message. Don’t vote for Abbott: he’ll increase the GST. Don’t vote for Abbott: he’ll increase the GST. It was unrelenting and desperate and obviously false. The word “vegemite” does not appear anywhere in Hawker’s diary.

So let’s be charitable and say there was a lot more to the Labor campaign than Hawker suggests.

The political diary is the falsest, most self-serving form of confession. No wonder it’s grown to be a favourite genre for political warriors.

For a long time it was a tradition that Australian politicians wrote themselves out of their own memoirs. The political historian Sean Scalmer points out that Australia’s insider accounts tended to be an account of political history where the protagonist was strangely missing.

Alfred Deakin’s story of federation included this disclaimer: “Those who desire to know the part the writer himself played in the public debates or campaigns must turn to the Reports published officially or by the press.” What a tease.

Over time such nineteenth century modesty was abandoned. The audience came to expect more reflection and more personality in political memoirs.

Memoirs are usually written years after the events they depict. They have a certain distance. Diaries promise something else entirely – a sense of intimacy with the author.

In theory, political diaries can take readers inside the tent. More than memoirs, they can convey some of the pace and excitement of politics, the sort of energy and uncertainty that is hard to reproduce in retrospect. And – most of all – they do so in an unedited, raw and highly subjective fashion.

After all, diaries are where we keep secrets. That’s their appeal. To read a genuinely private diary – even of someone long dead – feels like crossing an ethical boundary.

The modern political diary is the exact opposite of this. They are deeply self-conscious. They are public statements only pretending to be private.

Of course, every political diarist promises their book has been published with minimal edits. But there is no reason to believe, and every reason to doubt, these books are faithful records of the private inner thoughts of their subject. These diaries are written to be read. Hawker is a spinner. That’s his job.

Samuel Pepys – the diarist by which all others are measured – wrote his diary in code and it was not published for 150 years. Bruce Hawker’s diary was published in 50 days.

Why does this matter? Because it’s deceitful. The modern political diary is narrative construction and score settling and blame shifting masquerading as honesty.

When Hawker skips happily over the most bizarre decisions he and Kevin Rudd made, it’s obvious readers are being played.

The interest in political diaries does not come from the revelations about how the author felt in key campaign moments, but what they want the reader to believe they felt.

And it seems, as Katherine Murphy points out in the Guardian, that Hawker wants to be seen as a nihilist.

I don’t mean to pick on Hawker specifically. Few political diaries show the author in a positive light.

The 2010 equivalent of Hawker’s 2013 diary was Paul Howes’ Confessions of a Faceless Man. It was as much a confession as the author was faceless. Howes’ diary was obviously supposed to be an apologia for his highly public role in the spill that replaced Kevin Rudd with Julia Gillard.

But as the blogger Piping Shrike has argued, the only impression Howes’ diary gives is that high politics is utterly inconsequential. Howes surely doesn’t believe that nicknames and YouTube videos win elections, but – if one were to trust his diary – they seem to have been his primary focus during the campaign.

When Mark Latham released his diary in 2005 it was impressive how unguarded it was. It was packed with devastating character assessments. Its depictions of internal Labor politics were so sharply negative they could have been satire.

But since then we’ve come to realise that bile and insult is actually Latham’s usual writing style. His diaries weren’t an expose. They were an audition.

There was nothing revealed in Latham’s diary of his character that he hasn’t revealed over and over in the years since it was published.

Just as there is nothing in Bruce Hawker’s diary that he didn’t want thousands of people to read.

The political class has co-opted the private intimacy of the diary to deliver nothing more intimate than snarky interpersonal rivalries and ham-fisted narrative-shaping.

But that’s politics, I guess.

Voting Is Futile But That Doesn’t Mean Elections Are

The most interesting thing about Jeremy Paxman’s interview with Russell Brand isn’t what the comedian says.

No, it’s Paxman’s horrified reaction. Just watch it. Brand is a twit. But Paxman is glorious. He’s just so … shocked. Uncomfortable. Confused.

Paxman is supposed to be one of Britain’s leading political interviewers. He’s questioned top politicians and royalty.

Yet he is apparently flummoxed by this simple idea: voting and political engagement are not the same thing. The first does not equal the second. The second is not dependent on the first.

Fluffy movie-star Marxism aside, Russell Brand is right. Voting is one of the most futile ways to engage in politics.

Your vote – my vote, Brand’s vote, Paxman’s vote – doesn’t count. Not individually. Not to an election.

This is intuitively true, easy to demonstrate, but strangely controversial.

The New Zealand economist Eric Crampton offers a survey of the academic evidence about the notion that an individual vote can change an election here.

The best data is from the United States. A massive survey of 56,613 Congressional and state legislature elections could find only 10 elections where the result had come down to one vote – that is, where the result was a tie or the count revealed just one vote between the candidates.

Even that depressing result overstates the likelihood of a single vote deciding an outcome. Counting is not an exact science. Mistakes can be made (just ask the AEC). Five of those 10 elections were either recounted to reveal much larger margins, or just re-run.

The chance your vote will make a difference is infinitesimally small. So small, in fact, it’s not worth voting.

Not worth it, that is, if the reason you want to vote is to make a difference. There are other reasons one might vote apart from affecting an election outcome.

Many people follow politics like they follow sports teams. If they draw joy from voting, who are we to judge? Others vote because it is part of a ritual that underpins community and nation. That’s nothing to be scoffed at. Purely instrumental claims that voting is “irrational” simply because an individual cannot change the outcome miss the point. There’s nothing irrational about doing something you enjoy.

For some, voting is expressive. How they vote is part of who they are. A “Labor man” is a man who votes Labor. Humans build their identities out of their opinions and values – voting can help reinforce those identities.

And if voting is, legitimately and profoundly, a vehicle for personal expression, then so, surely, is the decision not to vote.

Brand explained his views in the New Statesman the next day: “I don’t vote because to me it seems like a tacit act of compliance.”

Many people claim that treating the decision to vote as a personal choice is somehow undemocratic, or a rejection of hard-won liberties.

These arguments should be seen for the nonsense that they are.

There’s a big difference between a right to vote and a positive duty – whether enforced by legal requirement or moral obligation – to do so.

The great battles for freedom and democracy of the past were not fought so that the state could coerce people into political participation. In Australia, we have turned democratic rights into legal requirements. (Yes, voting is compulsory.) Breaches of the law are punishable by the courts. This is a sickly ironic revision of the liberal cause so many died for.

Choosing not to exercise the right to vote is a very democratic choice.

There are far more effective ways to engage with the political system than voting. After all, politics is an ephemeral business.

Paul Samuelson, who wrote the textbook Economics that monopolised post-war university education in the United States, once said “let those who will write the nation’s laws if I can write its textbooks”.

It’s easy to overstate the differences between major parties, when, in fact, partisan differences don’t account very well for changes in public policy over time.

In the 1930s and 40s governments around the world, of left and right persuasion, increased control over their economies. In the 50s and 60s they built welfare states. In the 80s and 90s they privatised and deregulated.

Elections didn’t drive these epoch-defining changes. Voting certainly didn’t. Ideas did. The sort of ideas developed in textbooks and magazines.

But that’s where Russell Brand goes off the rails.

There’s a lot not to like about government of the twenty-first century – the institutionalised rent seeking, the expanding web of regulatory control, the lack of accountability, the national security excesses.

Yet it remains the case that elections are the most equitable, peaceful and legitimate mechanism to fix those problems.

Calling for “revolution”, as Brand does, is childish and naïve. At best such calls result in the kind of nihilistic destruction we saw in the London riots. At worst, well, I’m sure you know your history.

Democratic institutions ensure that if you want to alter policy, you have to convince your fellow citizens that change is desirable.

And, because any single vote will not change an election outcome, you have to convince a very large number that your cause is so important they should make an expressive, personal, “irrational” stand at the ballot box.

The futility of voting means that democracy resists sudden radical change. This is a good thing.

So many people who complain that the “system” is rigged are in truth complaining that most other citizens don’t agree with them.

But Russell Brand’s instincts on voting are correct. There is no civic duty to vote. His personal vote will not make a difference.

Abstaining is as powerful a democratic statement as any vote could be.

Broadband Is Just The Start Of Turnbull’s Minefield

Bill Shorten’s shadow ministry line-up contains a little Easter egg – a tacit admission that, for the last six years, Labor’s telecommunications and media policy has been an unmitigated disaster.

Stephen Conroy was communications minister for all but the last months of the Rudd and Gillard governments. He was shadow communications minister for three years before that.

In other words, Conroy embodies Labor’s communications legacy. And he has now been shuffled off to defence.

This is a quite a downgrade. Shadow defence spokesman isn’t exactly a super-star position. And Conroy told Lateline he has an “ongoing interest” in communications. He sits on the United Nations Broadband Commission.

The National Broadband Network was supposed to be one of the government’s great nation-building reforms.

But before Shorten announced the shadow ministry, Conroy gave a belated confession: the NBN hasn’t gone to plan.

It was “overly ambitious”. It didn’t meet vital construction targets. In his words, “the construction model that NBN Co put in place hasn’t delivered”.

Bear in mind we’re talking about the second version of the NBN. The first version didn’t go to plan either.

In the 2007 election, Labor promised to “connect 98 per cent of Australians” to “true” broadband within five years. Six years of government later, there are about 70,000 households connected to the NBN. That’s less than 1 per cent of Australians.

(Conroy blames the construction industry for this fiasco. As if making sure the NBN could be feasibly built had nothing to do with him.)

So there goes that legacy.

Australia has never been blessed with outstanding communications ministers. But it is hard to conclude that the communications portfolio for the last six years has been anything but a disaster.

Conroy has a long list of indictments to his name.

The internet filter, for one – a national embarrassment which Conroy delayed and misrepresented for half a decade, until finally he disowned it in 2012. (Well, sort of. Politics aside, the filter lives on in section 313 of the Telecommunications Act.)

Or the series of licence fee rebates for free to air television networks, not just entrenching the networks as Australia’s most protected industry, but actually rewarding them for that privilege.

Or the media reform package earlier this year, so badly botched that it nearly sparked a leadership spill.

Another casualty of Conroy’s attempt to regulate the media was one of his few worthwhile initiatives: the Convergence review. This review was supposed to be a grand and necessary rethink of communications regulation. But, as I wrote in The Drum in March, that noble goal was trampled by Labor’s obsession with News Limited.

This litany of failures means that Malcolm Turnbull inherits the ministry at a critical moment.

Labor liked to imagine it was solving the broadband question once and for all. The NBN was the end of telecommunications history.

Now history is very much resumed. No doubt Turnbull is being swamped by telecommunications lobbyists jostling for a bite of NBN Mark III.

But apart from the NBN, there are political forces converging on the communications ministry which will be very hard to overcome.

Recall that the election-eve release of the Coalition’s cyber-safety policy included a variation of the internet filter Malcolm Turnbull had spent years opposing.

It’s not clear how the filter arrived in cyber-safety policy. But its arrival was revealing – exposing a divide between liberals in the Liberal ranks and the think-of-the-children types.

Turnbull quickly dropped the Coalition’s filter. It was deleted from the cyber-safety document.

But the next time there is a moral panic about children on Facebook or Twitter trolls, a filter will once again be proposed, and cabinet will earnestly consider it.

The pressure to ‘do something’ will be too great. The opponents of heavy-handed paternalism are too few.

As divisive as cyber-safety is, it has nothing on national security.

Under Labor, the Attorney General’s department wanted to compel internet service providers to record their customers’ online activities – the so-called ‘metadata’ – just in case those customers are later accused of a crime.

Conroy of course supported this mandatory data retention policy, and for a typically belligerent reason. He claimed the alternative to data retention would be to “abandon all laws” on the internet. Straw men don’t get strawier than this.

Labor put data retention on the backburner. But it is dead certain that data retention will be reconsidered by the Coalition. Perhaps quite soon.

Turnbull expressed “grave misgivings” about data retention in his 2012 Alfred Deakin lecture. Not just because data retention would be unconscionably intrusive, but because it would be a huge regulatory burden on the telecommunications sector – his portfolio responsibility.

But the ultimate decision about whether to introduce data retention will be taken not by the Communications Minister but the Attorney General, George Brandis.

Brandis’ subordinate, the head of ASIO David Irvine, is lobbying publicly for data retention.

Turnbull is about to discover that the influence of telecommunications lobbyists pales in comparison to the influence of national security lobbyists, most of whom lobby politicians from inside the government itself.

Turnbull wants to be a better minister than Stephen Conroy. With Conroy’s record, that might seem easy. But it isn’t.

Turnbull will have to resist pressure within the government and within his own party to be worse.