Christian Porter’s defamation reform would be a catastrophic mistake

With Aaron M Lane

Attorney-General Christian Porter wants social media platforms like Twitter and Facebook to be legally liable for defamatory comments made by their users.

Right now, the common law can distinguish between the legal liability of active publishers of information (like newspapers and broadcasters) and the passive platform operators that allow users to publish information themselves. Courts decide where this distinction is drawn according the unique facts of each case.

But in a speech to the National Press Club on Wednesday, the Attorney-General declared he wants to eliminate the distinction altogether: “Online platforms should be held to essentially the same standards as other publishers.”

The Attorney-General’s proposal is fundamentally confused. Removing the distinction between digital platforms and newspapers would have a devastating effect on both those platforms and our ability to communicate with each other.

The proposal is bad on its merits. But even besides that, the conservative government needs to understand how destructive it would be to the conservative movement online.

Let’s start with the legal principles. It makes sense that newspapers and broadcasters are liable for what they publish. They actively commission and produce the content that appears on their services. They read it, edit it, arrange and curate it. They pay for it. Newspapers and broadcasters have not only an editorial voice, but complete editorial control. Indeed, it is this close supervision of what they publish that gives them strength in the marketplace of ideas.

Social media platforms do nothing of the sort. Not only do they not commission the content that appears on our newsfeeds (let alone read, factcheck, or edit that content), they don’t typically confirm that their users are even real people – not, say, bots or foreign impersonators. They merely provide a platform for us to communicate with each other. Social media has facilitated a massive, global conversation. But it has no editorial voice.

In the United States a parallel debate is going on among Republicans about whether Section 230 of the Communications Decency Act – which explicitly prevents courts from treating ‘interactive computer services’ as publishers or speakers for the purpose of legal liability – should be abolished.

Section 230 has variously been described by scholars and commentators as “the 26 words that created the internet” or the “the internet’s first amendment”. The internet law professor Jeff Kosseff writes that eliminating this provision would “turn the internet into a closed, one-way street”. Attorney-General Porter’s proposal would have the same effect.

If social media platforms have to bear legal responsibility for what their users say, they will assume editorial responsibility for it. That means editing, deleting, and blocking all content that could be even the least bit legally questionable.

Newspapers and broadcasters sometimes take calculated risks with what they print, if they believe that the information they reveal is in the public interest. But why would a technological company – a company that lacks an editorial voice or the journalistic vision – be anything but hypercautious? Why wouldn’t it delete anything and everything with even the slightest risk?

And here is where the practical politics comes in. Even if the Attorney-General’s proposal was a good idea in principle, this policy would be particularly devastating for the conservative movement that supports his government. Indeed, it is hard to imagine a legislative proposal that would more effectively, and immediately, cut down the Australian conservative movement online.

After all, what side of politics benefits most from the political diversity and openness of the modern internet? What side of politics has relied most on the internet’s ability to bypass traditional media gateways? It is difficult to imagine the conservative political surge in recent years without social media – without Facebook, Twitter, YouTube, and all those podcast platforms.

If conservatives are concerned about social media networks “censoring” conservative content on their services now, well, making them liable for everything conservatives say would supercharge that.

And why would this policy stop at defamation laws? Why wouldn’t it also apply to liabilities around, say, Section 18C of the Racial Discrimination Act? Or our sedition laws? We are looking at a future where technology companies in California (companies that many conservatives believe are stacked with culturally left employees) could be required to second-guess how the most left-wing judges in Australia might enforce this country’s draconian anti-speech restrictions.

The Coalition government should also reflect on how some of its most recent legislative programs have backfired on conservatives. The Foreign Influence Transparency Scheme, passed in 2018 in order to tackle Chinese interference in Australian politics, is now being used to target the organiser of the Australian Conservative Political Action Conference, Andrew Cooper, and even Tony Abbott.

The Attorney-General is right that defamation law needs reform. Australia’s defamation framework is heavy-handed and disproportionately favours private reputation over the public need to discuss significant issues. But removing the courts’ ability to determine liability for defamation – and instead deputising the world’s technology companies to enforce what they imagine it could be – would be a catastrophic mistake.

Should Governments Protect Independent Journalism?

We already subsidise journalism heavily. The ABC’s budget for 2011-12 was $995 million. SBS got $223 million in the same period. And Parliament has specifically nominated the vast bulk of this money to “inform, educate and entertain audiences”.

So it’s peculiar that when media theorists devise clever schemes to subsidise journalism in order to protect democracy – such as publicly funded newspapers, or tax-deductibility for the print media – they rarely mention the money we give SBS and the ABC for that purpose.

Perhaps some people believe we should increase those broadcasters’ budgets. That’s a legitimate debate. Let’s all draw lines and argue it out. But pretending we do not already spend an enormous amount of the public’s money to inform the public is simply dishonest.

Our media debate is very provincial. Fairfax is at a crossroads. News Ltd is too, although that company is reluctant to admit it. Here, the US is about two to three years ahead of us. Their experience suggests the print media will shrink dramatically in the next few years. But it also tells us good journalism is good journalism, whether produced on paper or online.

I hope our two print giants develop new business models that suit the times. Certainly many others will. The online media in the US is vibrant and plentiful. Australian readers and writers have good reason to be optimistic, at least about the medium-term future.

If they want to be taken seriously, advocates of subsidies have to answer some basic questions. How many media outlets does healthy democracy require? We might assume more is better than fewer. But as the past year has demonstrated, many people believe some newspapers and radio stations should be run out of town. Several media critics suggest tabloids and talkback radio are hurting democracy . So just calling for “more journalism” is not much of a guide for policy-making.

Maybe the government should subsidise only “worthy” journalism, if there was a way to define such a thing. The business of the press has always been intimately connected with delivering something people want to read or watch. Right now, the case for even more journalism subsidies is little more than a thought bubble.

Obama Beats Bush In Assault On Civil Rights

It’s been fun for the left in Australia to fixate on the Republican candidates for the American presidency. It’s been fun to joke about their policy quirks and eccentricities. Fun to pronounce that nothing is scarier than the prospect of a Santorum or Romney administration. Yes, the Republican race has been a convenient distraction.

Because it would not do to dwell on an uncomfortable, undeniable reality – Barack Obama, the left’s man in the White House, who was supposed to restore America’s standing in the world and end George Bush’s assault on civil liberties, has been much worse than his Republican predecessor.

Obama has undermined more individual rights, and hoarded more presidential power, than Bush ever did. It’s not that he has simply failed to roll back Bush’s anti-terror excesses. Although that is true, as well. It’s that Obama has trumped them. More than 10 years after the September 11 attacks, the White House is still amassing extra security powers. On December 31, Obama signed the National Defence Authorisation Act.

This act allows the military, without judicial authorisation, to arrest and indefinitely detain anybody within American borders.

This power is quite an increase. Under the Bush administration, the military could legally arrest and detain people only in other countries.

American citizens were protected by an 1878 act banning domestic military deployment. Obama no longer observes this legal nicety.

And Obama has claimed the right to assassinate any American citizen he deems a terrorist threat, at any time, according to nothing but his judgment, anywhere in the world. As a former CIA chief recently pointed out, while the President needs a court order to eavesdrop on Americans abroad, he does not need a court order to kill them.

There’s more. George Bush’s once-controversial covert surveillance program has dramatically expanded under Obama. The President’s emergency powers have been boosted. An executive order Obama signed in March (number 13603) grants more to the president in an emergency than any order yet, allowing the government to take over all food, transport, water, energy and health resources and, if the President wants it, to reintroduce conscription.

Executive orders are used to bypass the usual checks and balances in Congress and the courts. As the Cato Institute’s Jim Powell pointed out last month, there is nothing in order 13603 about protecting constitutional rights.

No wonder the director of the American Civil Liberties Union is “disgusted” by the Obama administration’s record. Sure, Obama has withdrawn troops from Iraq. Mission accomplished, as they say. But, on the other hand, he has also personally pioneered an entirely new, more enduring form of global warfare. Drone attacks will remain long after the wars in Iraq and Afghanistan have faded into historical memory.

Because drone war is permanent war. It is limited by nothing more than the whims of the president. It is the first war run entirely by the CIA. It is conducted on the territory of countries to which America is not formally hostile. And it took until February for the administration to even admit the drone war existed.

George Bush’s wars of liberation, right or wrong, had their precedents. Barack Obama’s never-ending global bombing campaign by remote control is his innovation.

It’s a fair bet that no administration will ever shut down the drone program. A competent intelligence agency can always find new threats for a bombing into the Stone Age. So if we simply apply the criteria the left used to condemn Bush as one of the worst presidents in history, there is no ambiguity. Obama is far worse again. Not that you would know about it.

Partisanship has a habit of excusing anything, with 77 per cent of those who describe themselves as left-wing Democrats wholeheartedly approving of Obama’s drone program. Imagine if a Republican did the same thing. There would be anti-drone marches in Washington and candlelight vigils in Paris and Berlin. Now the left is more interested in complaining that Republicans are sceptical about climate change. They ignore, excuse, even – according to the polls – defend their President’s abominable record on war and individual rights. Because he isn’t a Republican.

Manufactured Crisis

Ford has announced a week-long production halt in Australia. Toyota is mired in a labour dispute. But is Australian manufacturing in trouble? No. In fact, it’s thriving. Not that you’d know that from most commentary or political debate, which suggests that manufacturing is falling off a steep cliff. No matter how much taxpayer money we hand to the car industry, it is always flirting with collapse. For decades, the nightly news has told ominous tales of factory closures.

These stories mislead. Australia is by far a more successful, efficient, profitable manufacturing nation now than it was in the 20th century. When Kevin Rudd famously said in the 2007 election that he wanted to be prime minister of a country that “made things”, Australian manufacturing was already making more things than it ever had.

Over the past 60 years, the output (that is, the making of things) of manufacturing has increased fourfold, according to the Productivity Commission. Sure, that output has dipped about half a per cent since 2008. But blame the (temporary) global recession.

So why the big fuss? Well, the debate over manufacturing has never really been about manufacturing. It’s never been about economics or prosperity or even employment. The manufacturing fetish is nothing more than a marriage of nostalgia and special interests.

Manufacturing may be doing well but it holds a declining share of the total economy. Service industries are growing quicker and assuming the pre-eminent place.

People find this change hard to grapple with. Perhaps understandably. Factories are as much cultural icons as they are venues for production. For two centuries, the factory was an emblem of Western prosperity. Factory jobs were stable, well-paid, and open to all.

Our culture and politics reflected this. It was the factory wage for a married family man that underpinned our protectionist industrial relations system. Pre-war consumer advertisements tended to feature factories more prominently than the products.

By contrast, modern service industries are more diverse and less tangible. But productive work is productive work. What should it matter if we make a dollar’s worth of tractors or code a dollar’s worth of websites?

Preconceived ideas of what constitutes a healthy economy don’t disappear overnight. Especially when they’re promoted by union-tied politicians and lobbyists.

Announcing the federal government’s manufacturing taskforce last year, the then innovation minister Kim Carr said the government needed to “ensure manufacturing remains a key part of our economy for generations to come”.

That might be Labor’s priority, but it shouldn’t be ours.

The number of people working in manufacturing is a declining share of the total labour force. That’s a big political problem for the ALP. Many Labor politicians draw their support from the old industrial unions.

These unions are now less the vanguard of the proletariat, and more ageing, derelict fiefdoms. They are still able to depose prime ministers, sure, but that’s about it. The dysfunctional union-Labor relationship creates the perfect environment for dirty deals to flourish; hence the steady stream of cash the government sends the car industry’s way.

Immediately after Prime Minister Julia Gillard fended off Kevin Rudd this year, the unions were calling on her to keep manufacturing jobs from going overseas. They want some reward for their support.

But the unions are wrong. Jobs aren’t going overseas. Larry Summers, former economic adviser to US President Barack Obama and no free-trade ideologue, has pointed out that even in China manufacturing jobs are in long-term decline. It isn’t foreign competition, offshoring or the high dollar shrinking the relative importance of manufacturing. It’s technology.

This is great. Not all factory jobs are good jobs. Why have 10 people do a mind-numbing repetitive task that could be done by one machine?

In the future Australia may no longer assemble cars. Robots will. But we will design the cars. We will design, program and build the robots. We will construct the most intricate, high-value components that require the best technicians to produce. We’ll then ship everything off for final assembly in a lower-skilled country.

The industrial revolution was propelled by technological change. “De-industrialisation” is propelled by the same.

Even in some shrinking sectors of manufacturing there are niche Australian successes – particularly those areas that require high skills and high precision. But nimble niche industries won’t furnish the unions with a secure power base.

What to make of the claims that we need domestic manufacturing for national security?

Put aside that we have a vibrant manufacturing sector already. If a war came that forced us to make all our tanks – that is, if the global arms market was suddenly closed to America’s closest friend – the state of our car industry would be neither here nor there. We’re going to lose that war.

That this apocalyptic scenario is a foundation of the case for manufacturing subsidies just shows how desperate the industrial unions and the ALP are.

Manufacturing will never be the linchpin of the Australian economy. Nor should it. The sooner we get over our manufacturing obsession, the sooner we’ll be able to embrace a richer, more modern Australia.

Need To Keep Fingers Off The Panic Button

Public health advocates describe Australia’s binge drinking as an “epidemic” for a reason. Real epidemics have a frightening unpredictability. They are completely out of human control. An epidemic – think the 1918 influenza epidemic or the Black Death – inspires base, primal terror.

So when someone describes a lifestyle choice (a non-contagious lifestyle choice, at that) using such evocative language, it’s pretty obvious they’re trying to manipulate us.

In his new book, Panic, David Marr argues that Australia’s political culture is dangerously susceptible to outbreaks of hysterical fear.

This is absolutely right. We’re scared of Facebook predators and cybercrime, GM food and Chinese investors buying farms. The Occupy crowd harbours a bundle of conspiracies and neuroses about capitalism and Wall Street.

Remember when, in 2006, climate change activist Tim Flannery told us to “picture an eight-storey building by a beach, then imagine waves lapping its roof”? If that wasn’t hyperbole designed to inspire fear, what would be?

Marr focuses on what he sees as a few key panics: those over boat people, multiculturalism, suspected domestic terrorists, radical imams, offensive speech, Bill Henson and recreational drugs.

We can all play this game: like it or not, panic is bipartisan.

Panic is overreaction. We panic when the likelihood of an extremely adverse event seems greater than it really is. It’s extremely unlikely that a new global war will erupt or Chinese farm investors will immediately poison our food supply, but people still worry about it.

The policy consequences of panic are significant. In a society of panic, we no longer believe individuals can judge the riskiness of their own choices by themselves. Instead: there ought to be a law. The government should manage our risk for us. Virtually the whole regulatory apparatus is founded on the idea of panic.

It is panic that gives us the nanny state and helicopter parenting. It is panic which inspires the more than 6000 new pages of legislation that the federal Parliament passes every year. It is panic that has removed swings and monkey bars from school playgrounds across the country.

When governments try to manage risk, our ability to cope with future unknowns diminish. The more governments protect us, the more susceptible to panic we become.

Governments and political partisans have a vested interest in panic. Obviously, politicians push legislative agendas for lots of reasons. But they require public support to get them through. And few emotions spur us into action better than fear.

So every side of politics massively overstates the negative consequences of not supporting their preferred policies.

The apocalyptic tones of many climate activists are only the most obvious.

Oppositions pretend law and order problems are much worse than they are by claiming the government has lost control of our streets. This is an easy one: fear of crime has little relationship to the crime rate.

Most ludicrously, sports lobbyists say if we don’t keep funding the Australian Institute of Sport, then we won’t win Olympic medals and our national pride will plummet.

We were once told to panic about witchcraft. Now we’re told to panic about obesity and drinking. But how much attention we give the professional panic-mongers is up to us.

Time For A Rethink On Migrants – It’s No Crime To Seek A Better Life

The decisions of the Refugee Review Tribunal make disheartening reading.
It hears appeals from individuals who have had their application for a protection visa refused.
For instance: the Fijian man who applied for protection because “my educational outlook and possible employment opportunities may not allow me to reach my fullest potential”. Not really persecution, so he was refused a protection visa and refused entry into Australia to find work.
Or the Lebanese resident who claimed to be pursued by the terrorist group Fatah al-Islam, but applied for a protection visa because he lost his job and needed work. He was refused, too. Or the Indonesian woman seeking protection “due to economic hardship as it was impossible to make a living and support her young child”. Also refused.
The tribunal’s decisions are no doubt correct in law. Applicants often have inconsistent stories, leading the tribunal to question their truthfulness. Others simply do not fit the legal criteria for humanitarian entry. They do not have a “well-founded fear of being persecuted”.
But is Australia really better off having refused these individuals a visa?
Certainly the applicants are not. They would not have qualified for one of our numerous skilled migration programs. For many trying to get into Australia, claims of political or religious persecution are just pretexts: the real reason they want humanitarian visas is to seek employment and to participate in Australia’s high standard of living.
Advocates of strong border protection have dismissed these types of visa-seekers as “economic” refugees. And with asylum numbers booming, refugees fleeing poverty rather than persecution are clogging up the processing of humanitarian entrants.
Here is one way to fix that. The government could introduce a visa category for economic refugees.
After all, fleeing unemployment and destitution is just as justifiable as fleeing political persecution. Whatever moral obligation we have to accept political refugees applies just as easily to economic ones.
Few of the usual arguments against migration apply to economic refugees. For example, they need not be a drain on taxpayers.
Sure, humanitarian entrants immediately qualify for a wide range of government programs. They get caseworkers, language lessons and subsidised counselling. They receive settlement grants, crisis payments and Centrelink benefits and advances.
Yet a program for economic refugees needn’t be so generous. If migrants flee to Australia to seek employment, it is reasonable to insist they find employment. Or, at the very least, refuse to support them if they do not. Migrants who come to Australia looking for work seek to contribute more than they take.
Those three people rejected by the Refugee Review Tribunal were eager find employment. And, presumably, they were eager to spend. They could have contributed to our economy, society and culture.
There is an enormous need in agricultural industries for workers – an unskilled demand not being supplied by Australians – and significant demand in Australia’s north-west, where a lack of unskilled labour has inflated wages to an exaggerated degree. Low-skilled labour (with its low wages) could fill a substantial gap in the urban labour market for nannies, live-in carers and house cleaners.
Bosses such as Rio Tinto’s Sam Walsh and Leighton Holdings’ Wal King have made it clear heavy red tape for sponsored employment visas are restraining their ability to bring in migrant workers.
The Australian National University’s Professor Peter McDonald argued last week foreign contract employees are needed to build vital infrastructure. Economic refugees would be ideal candidates.
If that demand doesn’t exist, then economic refugees will not be interested in coming here in the first place.
Of course, migrant labour should not be used as an excuse to ignore policy problems in our higher education and training sectors. But we have a strong economy and businesses looking for labour.
We also must remember that migrants tend to be more entrepreneurial than everybody else – economic refugees make their own opportunities for work. So to be rejecting possible participants in our economy at the same time we are crying out for them is inexplicable.
And it should not need to be said, but allowing people to seek work and opportunity in Australia is a moral and humane imperative. The tragedy on Christmas Island should remind us of how desperate some are to find a better life here.
Allowing economic migrants into Australia also helps the developing world. The money migrants send back to their home countries is the unsung engine of globalisation.
According to one survey, 96 per cent of migrants from the Horn of Africa remitted part of their earnings back to family and friends at home. In 2006 (the last good estimate we have), migrants in Australia remitted $2.8 billion to the developing world.
It is more than we spent on foreign aid that year: $2.1 billion. Globally, the amount transferred in remittances is larger than that spent on aid. This money goes straight to families, rather than being filtered through aid agencies or corrupt governments.
So when three people are refused residency in Australia because they don’t have a well-founded fear of persecution, most people’s gut reaction might be that the legal system is working as it should.
But every economic refugee – every potential worker and consumer – we exclude makes Australia ever so slightly poorer.

Overreaction To Terrorism The Big Threat

Governments take terrorist threats very seriously. But the seriousness of terrorism has to be balanced against how very ineffective – even incompetent – most terrorists actually are.
When printer cartridge bombs were found on a flight about to depart from East Midlands Airport in England to the US on October 29, the regulatory and security response was immediate and uncompromising.
The packages originated from Yemen, so all cargo from Yemen was banned. And Somalia, too. The German government even stopped all passenger flights from Yemen. Toner and ink cartridges above 450 grams were completely banned from passenger flights travelling to the US, not just coming from Yemen, but coming from anywhere at all. The pat-down security procedures on all passengers travelling anywhere within or into the US were boosted.
A substantial reaction, but not an unusual one. Security agencies always hastily crack down on all sorts of activity when terrorist plots are discovered.
Yet just a few weeks later, it is hard to be scared by the printer cartridge bombs at all.
The plot failed on multiple counts. The bombs were found, they were disarmed, and they posed a minimal threat to human life and property. Neither does it represent innovation in terrorism – mail bombs have been around for centuries.
The bombs travelled on passenger jets, certainly, but only by accident. As they were cargo, the bombs were carried on passenger aircraft early on the journey from Yemen through the Middle East. The plan was to explode the bombs in US airspace, but investigators suggest it could have exploded over Canada.
Had the bombs exploded, they would have destroyed a cargo jet and its tiny crew, not the synagogues to which they were addressed.
The bomb maker to whom this has been attributed – Ibrahim Hassan al-Asiri, al-Qaeda’s chief engineer in the Arabian Peninsula – is responsible for the failed Christmas Day 2009 bomber, and a failed assassination attempt on a Saudi intelligence chief. The only fatality of that latter incident was al-Asiri’s brother, who had hidden the explosives in his rectum.
The printer cartridge bomb plot was detected by traditional counterterrorism intelligence. Some reports suggest information about the plan came from undercover Saudi agents within al-Qaeda’s Yemen operation – the terrorist network is, apparently, a lot easier to infiltrate as it tries to stave off long-term decline by expanding its franchises into Yemen and the Maghreb.
So, like many other terrorist scares, in retrospect, there is a lot less to the printer cartridge bombs than first seemed. There seems little reason to be worried.
But nothing quite demonstrates the strangely pathetic nature of the terrorism threat more clearly than al-Qaeda’s new English language magazine.
The October issue of Inspire contains some bizarre suggestions for jihadists plotting in the West. For instance: one article recommends terrorists weld steel blades onto the hubs of a four-wheel-drive and drive up onto a crowded footpath. Doing so, we read, will “achieve maximum carnage”. But that seems more like a terrorist plot hatched by Mad magazine than professional, trained Islamic revolutionaries.
When they’re not utterly stupid, they are oddly banal. Another Inspire recommendation is to shoot up lunch spots that are popular with government workers. So in a decade, al-Qaeda has gone from targeting the World Trade Centre and the Pentagon – the two symbolic organs of American power – to threatening Starbucks outlets one at a time.
Then there is “Make a bomb in the kitchen of your mom”, which suggests repurposing a home pressure cooker to become an explosive device. Such a device is weak, apparently, so the magazine recommends it is placed “close to the intended targets”.
It is surprisingly hard to detonate explosives successfully. Despite the large number of detailed guides to bomb-making littering the internet – whether written for anarchists or jihadists or self-destructive teenagers – the history of terrorism suggests budding bomb-makers are undertrained and underprepared.
The shoe-bomber, Richard Reid, who tried to blow up a flight from Paris to Miami in late 2001, failed because his explosives were damp. The Christmas Day bomber, Umar Farouk Abdulmutallab, burnt his trousers off trying to ignite explosives in his underpants.
The May 2010 Times Square bomber, Faisal Shahzad, could not get his car bomb to detonate. He just set the car on fire. Shahzad was apprehended, in part, because he left his house keys in the ignition.
In late November, the “Portland car bomb plot”, in which a 19-year-old Somali-American tried to blow up a Christmas event, was foiled because his car bomb was a fake. The explosives had been provided by undercover FBI agents who – it appears – had goaded him into becoming an operational terrorist in the first place.
If so, it would not be the first time: a 2007 plot to attack a US army base in New Jersey was almost certainly a case of FBI entrapment. And it will no doubt occur again. There was a bizarre case reported in The Washington Post this week of a mosque in Los Angeles taking out a restraining order on a man spouting pro-terrorism views, and reporting him to the FBI. The man turned out to be an FBI informant trying to infiltrate the jihad.
Despite all this clownishness, the overreaction to every failed terrorist attack has serious consequences. Terrorism succeeds not because of what it does to its target, but what its target does to itself in response.
Measured in money, the cost of terrorism is dwarfed by the cost of the reaction to terrorism. Security responses threaten civil liberties and the rule of law. Nobody needs to be reminded how, since the September 11, 2001, attacks the legal, political and administrative security apparatus has been unalterably changed in the US, Australia and throughout the Western world. The economic cost of this alone is staggering. There are now 1271 separate American government bureaucracies dedicated to security.
Millions of Americans have security clearance and access to this sprawling bureaucracy – apparently allowing a disaffected, low-ranking soldier to gather a huge number of military and diplomatic records and send it to WikiLeaks.
Our government has embarked on its own national security empire-building. The size of the Australian Security Intelligence Organisation has tripled in the past decade.
Then there are the inconveniences caused by knee-jerk reactions to failed terrorism plots. The discovery of the printer cartridge bombs may mean in-flight wireless internet is scrapped, in case the internet is used to detonate explosives. After all, if it is possible to imagine, it is necessary to ban.
There’s also political pressure in Britain to install high-tech screening devices to scan every piece of cargo travelling on aircraft, with the cost borne by freight companies.
After November’s car bomb attempt, Portland is now beefing up security and getting rid of parking at public events.
And after the Christmas bomber, the US government dramatically increased the number of body scanners and intrusive pat-downs. The outcry over the privacy and health consequences of these extraordinarily invasive measures has been deafening. The phrase “security theatre” has become widely used, even among commentators predisposed to being tough on terrorism.
Two things to note: the invasive body scanners have been installed in response to a failed terrorism attempt, not a successful one. And independent security experts have discovered that the scanners are unable to detect the sort of explosives the Christmas Day bomber tried to use.
So, naturally, the Australian government plans to spend $200 million introducing body scanners here within the next few months.
And measured in lives, the reaction to terrorism is often far worse than the potential damage caused by terrorists.
Admittedly, this point does not apply if you believe drone strikes and other military actions kill terrorists exclusively. There are indications the US will respond to the printer cartridge bombs by escalating its covert war in Yemen to include drone attacks.
Next year will be the 10th anniversary of September 11. The devastation of those attacks now looks like a rare fluke. It is one which is unlikely to be repeated. If nothing else, aircraft passengers will no longer passively allow anyone to forcibly take over a plane. Passenger awareness is probably the most powerful airline security “innovation” in the past decade.
And it is becoming increasingly clear there are no great terrorist “masterminds”. The war on terror has no great Bond villain. There is no Einstein of al-Qaeda.
Incompetent terrorists are still dangerous; they can still kill.
But after the initial panic, the vast majority of terrorist incidents are less threatening than they first seem.
The director of the US National Counterterrorism Centre said last week “we help define the success of an attack by our reaction to that attack”. Let’s try not to make our reaction to terrorism worse than the threat of terrorism.

Tea Party conservatives are brewing up a storm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Snapping at heels of civil liberty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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