A social problem, not a technological problem: Bullying, cyberbullying and public policy

With Simon Breheny

Introduction: Bullying among children is a significant and serious issue. In recent years, thephenomenon described as “cyberbullying” has received a large amount of social, political, and academic attention.

The Commonwealth government has announced that it is seeking legislative change to deal with cyberbullying. The government plans to institute a Children’s e-Safety Commissioner with power to takedown harmful content directed at children from the social media sites.

The Children’s e-Safety Commissioner is a serious threat to freedom of speech.

The purpose of this paper is to outline the scope of the cyberbullying problem, the conceptual framework within it must be understood, and develop principles by which policymakers can address the cyberbullying problem. Without understanding the cyberbullying phenomenon it is impossible to devise effective policy that will not have unintended consequences and threaten basic liberties like freedom of speech. Unfortunately it is not clear that the government has clearly understood the causes, consequences, and characteristics of cyberbullying.

This paper argues that cyberbullying is a subset of bullying. It is bullying by electronic means. It is not a problem of a different kind from bullying in an offline environment. Cyberbullying is a social problem, not a technological one.

Available in PDF here.

Submission to the Department of Communications Discussion Paper ‘Enhancing Online Safety for Children’

With Simon Breheny

Executive summary: The government’s proposed Children’s e-Safety Commissioner represents a serious threat to freedom of speech and digital liberty. The proposed regime would create extraordinary new powers, which would be conferred on a government-appointed digital censor. The power to order certain material to be pulled down from large social media sites also gives discretionary power to a government bureaucrat.

The proposal misdiagnoses the problem of bullying on and offline. Bullying can be a significant and very harmful social problem – whether on or offline. Cyberbullying is not a special case demanding of specific laws. It should be dealt with using the same legal framework as bullying that takes place offline.

The existence of a Children’s e-Safety Commissioner will not prevent or protect young people against cyberbullying. There are many forms of harmful online activity that will not be caught by the government’s proposed regime. The regime may also drive cyberbullying to sites that are less easily monitored by parents and guardians. Smaller social media sites are less likely to have rigorously enforced community standards yet the government’s proposal is aimed only at large social media sites.

The proposal also ignores existing remedies. There are a variety of current laws that exist to catch the same conduct that the government seeks to proscribe. Legal remedies for stalking, harassment, intimidation and a range of other unacceptable behaviours are already available to victims of bullying.

The Children’s e-Safety Commissioner may provide a false sense of security among parents that cyberbullying has been dealt with. Some parents may not feel that their own efforts are still necessary when faced with the existence of the government’s cyberbullying program. Parents may fail to employ monitoring and security software believing it to be redundant. However, there will be cases of cyberbullying that are not caught by the government’s scheme but that would have been caught by parental vigilance.

Available in PDF here.

Coastal Shipping Reform: Industry Saviour or Regulatory Nightmare?

With Aaron Lane

Executive Summary: On July 1 2012, the Gillard Government passed the most extensive suite of changes to coastal trading since the Navigation Act 1912 in the form of the Coastal Trading (Revitalising Australian Shipping) Act 2012 and its associated Acts.

They come on top of the Fair Work Act 2009, which imposed Australian labour standards on foreignregistered ships operating with foreign crews in the Australian coastal shipping trade.

The combination of these changes have negative effects for the Australian economy and for Australian businesses and consumers.

  • These changes are intended to reduce the number of foreign vessels currently carrying coastal freight, and to make Australian ships more competitive. They do so by significantly increasing the regulatory burden on foreign-flagged ships.
  • Foreign-registered ships temporarily operating on the coastal trade must undertake at least five voyages in twelve months, and the loading dates, origin and destination, cargo types and volumes are specified at the start of that period.
  • Foreign-registered ships can only carry cargo if there are no Australian-flagged ships (or foreign-flagged ships transitioning to Australian flags) that can do so.
  • Foreign-flagged ships carrying foreign crews have to pay Australian award wages, which are far in excess of International Transport Workers’ Federation rates.

These changes are aimed at encouraging the use of vessels that employ solely Australian resident crews. In doing so, the changes have the effect of significantly reducing the flexibility in the coastal shipping trade, and squeezing foreign-flagged ships out of the market. As a result of the 2012 changes alone, the net present value of the coastal shipping industry’s net economic benefit to the Australian economy is between $76 million and $150 million less than it would be in the absence of these changes.

It is clear that the changes will increase transport costs. This could result in bulk commodities being sourced from cheaper overseas markets, thus negatively affecting Australian commodity producers.

Increased transport costs could also be passed downstream to consumers. This paper examines the broader economic effects that seem likely to arise as a result of these changes.

Finally, this paper asks what ought to be done about coastal shipping. It concludes that a marketdriven, open regulatory framework should instead govern Australian shipping, and it calls on the Abbott Government to implement changes as a matter of priority.

Available in PDF here.

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.

Submission to Senate Legal and Constitutional Affairs Legislation Committee Exposure Draft of Human Rights and Anti-Discrimination Bill 2012

With Simon Breheny

Executive Summary: The exposure draft of the Human Rights and Anti-Discrimination Bill 2012 represents a dramatic and radical attack on Australians’ fundamental freedoms under the guise of reforming antidiscrimination law.

The draft Bill makes government the arbiter of behaviour within a substantial range of private political and personal activities. The draft Bill would politicise and regulate private interpersonal relationships in a way they never have been in Australia.

In a very real sense, these laws are not anti-discrimination laws. They are laws designed to give the government authority over our lives in completely new and unjustifiable arenas. This is an excessive and indefensible increase in state power.

The proposed laws give the government explicit power to interfere in almost all facets of human interaction including eighteen areas of public and private life, such as political opinion, religion and social origin. The government is also required to decide what falls into these categories, making the state the total and final arbiter on our most fundamental liberties.

By redefining discrimination to be anything which “offends, insults or humiliates” the proposed law will extend the infamous provisions of the Racial Discrimination Act that led to the Andrew Bolt case to almost every area of public and private life. By expanding the grounds on which people can claim to be discriminated against to include areas such as “political opinion” the law will stifle genuine discussion on almost every topic for fear of legal consequences.

This draft Bill has deservedly been criticised from across the political spectrum as a massive overreach and an unjustified curtailment of individual freedoms.

Democratic governments rely on the free exchange of opinion for their legitimacy. This draft Bill, if enacted, would dramatically limit freedom of speech in Australia.

This submission also raises other concerning elements of the draft Bill. The draft Bill substantially reverses the burden of proof onto the defendant. It introduces a large amount of uncertainty and ambiguity into anti-discrimination law.

The draft Bill introduces a subjective test for decisions about whether the law has been breached. Subjective tests are impossible to comply with and should never be used by the courts.

There is no justification for such a dramatic overhaul of anti-discrimination law, and no place for such extraordinary limits on freedom of speech.

Available in PDF here.

Submission to Parliamentary Joint Committee on Intelligence and Security on ‘Equipping Australia against Emerging and Evolving Threats’

With Simon Breheny

Introduction: The Institute of Public Affairs believes many of the national security proposals contained in the Attorney-General’s Department’s Equipping Australia against Emerging and Evolving Threats Discussion Paper are unnecessary and excessive. Many of the proposals:

  • Curb civil liberties;
  • Systematically breach Australians’ right to privacy, and;
  • Breach basic rule of law principles.

The Discussion Paper offers at least 45 distinct proposals. This submission does not attempt to address each one. Instead, we focus on one particular proposal that the government is seeking views upon: the data retention policy that would require internet service providers to retain data on all users for up to two years.

The data retention proposal, along with a number of other proposals listed in the Discussion Paper,would be a significant increase in the power of security agencies and the Attorney-General’s Department.

Available in PDF here.

In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt

Institute of Public Affairs and Mannkal Economic Education Foundation 2012

Freedom of speech is at the heart of individual liberty and democracy. Yet, in Australia and around the Western world, it is under attack on all sides: from regulations to force ‘balance’ on the press, to new human rights like the right not to be offended.

In this important new book, Chris Berg offers a bold reinterpretation of why freedom of speech matters. Only by understanding how the right to free expression and freedom of conscience arose can we understand the magnitude of the threats we now face.

The liberty to express our thoughts and opinions is one of the central foundations of Western Civilisation. When governments threaten that freedom of speech, they threaten the foundations of liberty and the democratic system.

Available at the Institute of Public Affairs and Amazon.com

The Finkelstein Report into Media and Media Regulation: Licensing, censorship and accountability

Introduction: The proposed News Media Council recommended by the Finkelstein Report into the Media and Media Regulation represents a significant threat to freedom of speech.

  • The Council would be a de facto licensing scheme for printed and online media. Licensing over the printed press ended in the English-speaking world in 1695.
  • The Council would enable state censorship of controversial content.
  • The Council represents a reversal of democratic accountability: rather than state being accountable to the opinions of citizens, it would make citizens’ opinions accountable to the state.
  • The Council would not only regulate the speech of newspapers and television broadcasters, but it would regulate the activities of virtually every citizen who expresses opinions online or in print. Nearly every website, magazine, journal, and newsletter published in Australia would come under the News Media Council’s jurisdiction.

The extraordinary breadth of the proposed News Media Council’s jurisdiction suggests that, despite the Finkelstein report’s 400 pages of philosophy, history, economics, and public opinion research, it has not been properly thought through.

Available in PDF here.

Submission to the Independent Media Inquiry

Introduction: The Independent Inquiry into Media and Media Regulation raises troubling freedom of speech and freedom of the press issues. A free and independent press is an absolute necessity for a functioning democracy, and freedom of speech is one of the basic foundations of individual liberty.

Available in PDF here.

Over-ruled: How excessive regulation and legislation is holding back Western Australia

With Christopher Murn

Executive Summary: The global financial crisis and economic downturn makes a review of Western Australia’s regulatory burden urgent. Over the past decade, the amount of new legislation has increased by an average of 158 pages per year. This increase is substantially faster in Western Australia than in any other state, even after controlling for economic growth and population. Western Australia has developed an international reputation as the most over-regulated Australian state. Over-regulation has significance financial, social and indirect costs to Western Australians. There are also substantial hidden costs.

Available in PDF here.