I’m sure you’ll have some cosmic rationale… Answering Quadrant’s (@jolly_rogered) questions to @SenatorFifield

Being conservative, I have strong opinions about art.  It goes with the territory.  Art has an important social function, developing the ideas and concepts through which we understand ourselves as individuals and as a community.  This importance means that it is necessarily a contested space: how should it be funded, how should it be regulated, and what it should achieve are going to have ideologically informed answers.

But it is also going to bring out the sooks.  No matter which way the resources are distributed, somebody is going to feel like they’ve missed out.  Rather than present some intellectually serious account of how arts funding should be allocated, we hear moaning from all sides of politics about how everything’s so terribly unfair.

Quadrant — which is utter sludge barely more adult than The Spectator — is a frequent performer on the stage of boohooery.  Where previously it enjoyed a healthy stipend courtesy of the taxpayer, it now has to seek out other sources of funding to sustain its content: ‘Why the Stolen Generations never happened’, ‘Why the Left is making everybody soft’ and ‘Why the Stolen Generations never happened, the Sequels’.

I read with some surprise Roger ‘If there were justice in the world the ABC would have been bombed’ Franklin cracking the sads that a young woman received funding from the Australia Council for the Arts instead of a bunch of old men at Quadrant.  As is routine, his objections are more ‘point and giggle’ than serious engagement with arts policy.  Rather than put forward some serious view, he asked ten questions of Senator Mitch Fifield, the Minister for the Arts.  Here’s how I wish the Minister would respond:

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When everybody knows that elephant is you… Obligatory conservative hot take on Barnaby

At some point, we need to understand politics as a workplace.  As a workplace, the participants have obligations towards each other to ensure that the workplace remains welcoming, inclusive, and healthy.

‘Remains’ is perhaps the wrong word.  It’s more accurate to say that the workplace is unhealthy, exclusive, and discouraging.  But the bigger point is that we should want people to feel like they could seek a political job if they wanted it.

Trashing people’s private lives just because they’re politicians actively works against this goal.  Trashing the lives of private people just because they’re associated with politicians actively works against this goal.  Forcing the family of politicians into the public light actively works against this goal.  Politics should be an attractive job to get ‘normal’ people involved: why are we trying to stop this?

Continue reading “When everybody knows that elephant is you… Obligatory conservative hot take on Barnaby”

And he decides who to free and who to blame… How should a democracy appoint judges? Answer: not democratically

Recent media reports have noted the quasi-proposal of Peter Dutton, Minister for Home Affairs, for the public to be more involved in the selection of judges. As far as I can tell, Dutton hasn’t elaborated on precisely what he meant by his comments.  It is likely that his comments were part of his broader campaign to shame judges into deciding cases consistently with what he sees as ‘community values’.  As much as we might not like Dutton’s comments, it’s his role as a parliamentarian to scrutinise the courts.  The problem is that the current state of public engagement in political processes is poor, so this mechanism is prone to being hijacked.

Let’s strip this of identity in the first instance and turn this into a discussion about principles.  Should judges be elected?

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Quick Post: Auditing @TheIPA’s Legal Audit

For the past few years, the Institute of Public Affairs has produced an ‘audit’ of Federal legislation to determine the extent to which ‘fundamental legal rights’ are breached.  The ‘fundamental legal rights’, according to the Institute of Public Affairs, are:

  1. The presumption of innocence and the burden of proof;
  2. Natural justice;
  3. Right to silence; and
  4. Privilege against self-incrimination.

If that seems a little bit thin, you’d not be wrong.  The thinness of its scope is exacerbated by the ‘research method’: taking all the legislation passed by Parliament in 2017, pressing ‘CTRL +F’, and searching for key phrases like ‘bears a legal burden’.  The result is the very surprising claim that trade and commerce legislation and taxation legislation are the two areas that breach ‘fundamental legal rights’ the most often — coincidentally, the two ares of legislation that regulate the wealthy.

The ‘research method’ also results in the surprising conclusion that both statutory defences and notes which indicate an evidential burden are breaches of fundamental legal rights.

So a clarifying note was inserted into s 535 of the Fair Work Act 2009 that says, in a nutshell, ‘Hey, if you breach this section, look at s 557C for the consequences.’  But the drafters happened to use the words ‘bear the burden of disproving’ and thus got pinged under the audit.  So the legislation remained the same, but the clarifying note has resulted in a breach of ‘fundamental legal rights’.

Let’s look at that example more closely.  So s 535 is about employer obligations to keep employment records.  Employment law is in no way shape or form my thing, but it seems intuitively sensible that the law would require employers to keep employment records.  Here are the relevant subsections:

(1)  An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.

 (2)  The records must:

(a)  if a form is prescribed by the regulations–be in that form; and

(b)  include any information prescribed by the regulations.

(3)  The regulations may provide for the inspection of those records.

That all seems fairly sane.  The clarifying note states:

Note:          If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

So this clarifying note was counted as a breach, and s 557C (which was inserted into the Act this year) was counted as a separate breach.  A quick look at s 557C states that (inter alia), if an allegation is made that the employer didn’t keep records, then the employer has the evidential burden of disproving the allegation.  Further, this burden doesn’t exist if the employer has a reasonable excuse as to why the records don’t exist.

We might disagree about how reasonable it is to shift a burden of disproving a lack of something (I think this is fairly reasonable).  What we wouldn’t agree with is that these are two separate ‘breaches’ of a ‘fundamental legal right’.  The IPA’s sloppy method (key word searching) means that the substance of the legislation is ignored.

I’m not a tax law person either.  I’d rather gnaw my own arms off.  But what I do know, by just looking at the Taxation Administration Act 1953, is that the Act is structured into 10 Parts, and those Parts being separated into up to six divisions.  It therefore came as a surprise to discover the IPA believed there was a secret ‘Division 145’ that had been inserted into the Act that put upon the accused a ‘burden of disproving’ some allegation or other.

Morgan Begg, the IPA Research Fellow who wrote this audit, believes that the offending Division 145 was inserted by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.  But that Act does not amend the Taxation Administration Act 1953 at all.

Again, I’m not a taxation lawyer, but it’s possible that old mate Morgs is talking about something in a schedule somewhere.  A quick search of the Taxation Administration Act 1953 brings up Division 145 in the Schedule which is about Diverted Profits Tax (no idea).  It points to s 14ZZO that appears to provide an opportunity to object to a taxation decision of some kind.  If you object to the decision, the burden shifts to you to demonstrate why your objection should be upheld which seems… right?  If I’m reading this correctly, you have the burden of explaining why you’re objecting.

That might not be clear.  You’ve got through an administrative process to determine how much tax you owe of a particular kind.  Then, if you’re unhappy with this outcome, s 14ZZO gives you an opportunity to object to a higher power by letting you prove how much you think you owe.  Framed differently, if this section did not exist, you’d have fewer rights to reduce your taxation liability.  So how can a section that gives you a right to defend yourself against a tax debt be a breach of a fundamental legal right?  It makes utterly no sense.

The ‘right to silence’ analysis is even more bizarre.  Many Acts will stipulate that you are required to comply with notices issued by various authorities.  If you don’t comply with those notices, there are often legal consequences stipulated in the Act.  The audit searches for the phrase ‘fails to comply’ and then pings every instance of this kind.  What a failure to comply with a rectification notice has to do with the right to silence is anybody’s guess.

The audit is weird and its conclusions are, frankly, stupid.  If the purpose of think tanks is to inform public debate — a purpose which appears to justify its Deductible Gift Recipient status — we should be concerned that its contributions are so poorly informed.  Think what you like about the merits of new provisions in the Criminal Code and the Migration Act, but these seem intuitively to be out of alignment with popular conceptions of civil liberties.  Of course, I think that those intuitions are incorrect, but I think they’re more worthy of public debate (as I argued in the Guardian about the anti-bikie laws) than half baked ‘audits’ based on keyword searches through legislation.  This ‘audit’ is not a good contribution to public debate.  The presentation of information is confused and confusing, and there is a complete lack of analysis supporting the findings.

The stars in the sky look down where He lay… Refugee law and the Nativity

Over Christmas, there was a fair amount of online chatter about what we could learn from the Nativity about refugee policy.  On the one hand, there were people who were adamant that the Nativity should inform our imaginations about refugee policy.  On the other hand, there were those who were adamant that the Nativity had nothing to do with refugee policy.  With all these experts and opinions, however could we ordinary humans possibly know whether the Nativity tells us something interesting about refugee policy?

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A weird story about how Australia is a cultural backwater, starring Milo Yiannopolous

By now, everybody should have read Richard Cooke’s piece in the Saturday Paper about how Australia’s right wing has a habit of inviting the worst of the world to our shores:

This national strain of credulousness has since been politicised and weaponised. The ABC has been cowed into compliance. Fairfax Media has been gutted, and that means the Murdoch press calls the shots. In their world, Nick Cater counts as a formidable intellectual import, and he’s a former laundry van driver who cut his teeth in the University of Exeter sociology department. In comparison, every climate change hoaxer and vape merchant and tax-cutting lightweight from abroad really is a god in the firmament, and is given Olympian treatment accordingly.

If you’d failed everywhere else in the world, argued Cooke, Australia’s right wing commentariat would give you a safe harbour.  Yiannopoulos had recently suffered a number of blows to his empire, so Australia’s mainstream conservatives gave him a book tour in Australia.

Thus begins this strange tale of a weird publishing company based in Melbourne.

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You dreamed of a big star. He played a mean guitar… Review of @RowanDean’s unreadable ‘Corkscrewed’

It is impossible to say anything that is both honest and positive about Rowan Dean’s Corkscrewed.  Even the font is all over the shop.  Its main joke is about how the protagonist (some thin kind of Mary Sue) keeps trying to sexually assault women while he’s drunk.  By the time you get to the scene where a near victim throws up truffle vomit into his mouth while he’s trying to assault her while she’s passed out from alcohol intake, you realise that you could be doing literally anything else with your life except read this trash.

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