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.


And no message could have been any clearer… Is @rgcooke correct about the ALP’s asylum seeker policy?

I’ve written a lot on asylum seeker policy.  A lot.  We can — without any hyperbole or rhetorical flourish — state that asylum seeker policy has deteriorated significantly over the past two decades.

One aspect that I emphasise is the remarkable disconnect between public rhetoric about asylum seeker policy and public engagement with asylum seeker policy.  Of the former, we have an abundance — every goddamn person has an opinion fashioned on little more than gut instinct, anecdote, and prejudice — while of the latter, we have vanishingly little.  This makes working in asylum seeker policy quite a fractured experience: you can make significant progress on issues up until the public takes notice, at which point the politics become so toxic that it’s impossible to do anything much.

The dynamics of this toxicity are well demonstrated by Richard Cooke’s recent opinion piece in The Saturday Paper: a piece which is quick to jump to ‘solutions’ without ever really grappling with the problems of asylum seeker policy.

Continue reading “And no message could have been any clearer… Is @rgcooke correct about the ALP’s asylum seeker policy?”

Fingers in paints, in paints we brought… It’s Human Rights Day! Let’s celebrate, Australia!

It’s been 69 years since the adoption of the Universal Declaration of Human Rights.  Australia does not really celebrate its involvement in the creation of the Declaration.  William Hodgson is all but unknown to most Australians.  I’ve sometimes wondered why Australians aren’t taught about the role we’ve played on the global stage — some kind of cultural cringe, maybe.  Hodgson was on the drafting committee that was chaired by Eleanor Roosevelt, and Doc Evatt was the President of the United Nations General Assembly at the time of its adoption.

Even detractors of the Declaration have to recognise its importance.  In the period immediately following the Second World War, there was a desperate need to recognise a universal humanity that would provide a moral basis to international law.  And the document reflects the aspirations of elites at the time.

But good intentions only get you so far.  International Human Rights Day is a good opportunity to be intellectually serious about human rights as a moral and a legal concept, and to defend Australia’s approach to the legal recognition of human rights.

Continue reading “Fingers in paints, in paints we brought… It’s Human Rights Day! Let’s celebrate, Australia!”

So shave your face with some mace in the dark… Obligatory marriage equality post

It was inevitable that this would be the outcome.  There were no good reasons to discriminate between people based on sexual identity, and now the law reflects community values.

That should be the end of the matter, and yet it isn’t.  The path that we took to the inevitable deserves critique, not least because we took the pathway that did the greatest possible damage to the Australian community.  We should also ask ourselves if this is the way we want democratic society to work, or whether democratic styles are being used to cloak antisocial behaviours.

Continue reading “So shave your face with some mace in the dark… Obligatory marriage equality post”

In a country that’s half insane, In a country that’s banned the rain… A Bill of Rights will not fix Security Policy

It’s a well-known dance.  The government announces a new national security policy, then the media and the usual human rights organisations breathlessly inform us that this is Orwellian, Kafkaesque, and the last piece of evidence we need to support their preferred policy option (usually some Bill of Rights or a Federal Independent Commission Against Corruption).  After a few days, we go back to normal when a Kardashian posts a ‘problematic’ selfie to Instagram or something similarly edifying.

Why does the debate happen like this?

Continue reading “In a country that’s half insane, In a country that’s banned the rain… A Bill of Rights will not fix Security Policy”

I only ever lie to make you smile… Of rhetoric, media representation, and terrorism

Media portrayals of terrorism are racially loaded.  There’s no doubt about it.  But the way in which it is racially loaded is not immediately apparent, and a lot of the hot takes in the media today following the shooting in Vegas shows that people can be far too hasty in their presentation of issues.

Put simply, the problem is not the use of language to describe events, but the difference in prominence of events.

Continue reading “I only ever lie to make you smile… Of rhetoric, media representation, and terrorism”

If you are confused, check with the sun… The High Court and the Plebiscite: Standing

The retiring Chief Justice of Victoria made some interesting comments regarding the role of the media in improving public understanding of the law:

Judges cannot really rely on the media for communication. It is up to us to write more simply and briefly with accompanying summaries and all published in an accessible way on the internet and through social media. This is an achievable goal which will help community understanding of what we do and why.

Given the public interest in the High Court hearing regarding the marriage equality plebiscite, I was surprised that there wasn’t more commentary when the decision was handed down.  The media was more interested in the outcome (plebiscite is going ahead) than the decision (interesting legal stuff).

Very little to do with the decision is actually about the plebiscite.  I find it endlessly fascinating that High Court decisions — many of which are extraordinarily fascinating on their facts alone — enter public consciousness in a way that is entirely disconnected from the legal matter.  I remember seeing Ronald Williams being interviewed on the ABC.  He was the guy behind the National Chaplaincy in Schools Programme challenge, and who brought a case to the High Court about the extent to which the government is able to spend money without legislative approval.  In the interview, he clearly had no idea what his case was about.  For him, it was entirely about chaplains in schools, religious freedom, freedom from religion, and how atheists were persecuted.  For the Court, it was about the scope of Executive power.  The Court was in no way interested in the same things that Williams was.

The decision in the plebiscite case includes some interesting points of broader interest to the public.  Here are some notes and thoughts about the issue of standing that arose.

Continue reading “If you are confused, check with the sun… The High Court and the Plebiscite: Standing”