Put your fate in your hands, take a chance, roll the dice… The Australian Research Council is not worth saving, @ARC_Tracker

[This is a heavily redacted version of my original draft]

Australian academics were given a free kick in the research funding policy debate recently.  The acting Minister for Education, Stuart Robert, rejected the recommendation from the Australian Research Council (ARC) to fund a handful of research proposals.

Unlike nearly everything in research funding policy, it became headline news.  People from beyond the academy had more than a passing interest in what was going on, and it was an opportunity to bring the public on board for extremely overdue reforms of the ARC.

Instead, we blew it.  Describing the decision as a use of a ‘veto’ (which it isn’t, but poetic licence for advocacy is forgivable), Australian academics began describing the Minister’s decision as using ‘God-like’ powers, a violation of the separation of powers doctrine, and–most surprising of all–a threat to liberal democracy.  It was embarrassing, and academia made itself look unnecessarily feeble, pathetic, and precious.

If making decisions on funding recommendations is a ‘God-like’ power, we truly have reimagined the Lord as a mere conjurer of cheap tricks.  And if deciding funding outcomes is a ‘God-like’ power, do we really want the ARC making those calls instead of an elected official?  More importantly–as I’ll argue here–do we really want either Ministers or government panels telling universities how to spend research funds?

Quick Post: Getting the intuitions right about the Hillsong ‘breach’

When you adopt a police-first strategy for dealing with the pandemic, you need to declare what is now an offence.  This can get tricky because what you really want is for people to use their good commonsense and to limit the possible spread of the disease by asking themselves ‘Should I do this thing that might spread the disease?’  Unfortunately, you don’t get to make an offence ‘Doing something that defies basic reason’, and so you have to specify, fairly clearly, what it is that you want to have as an offence.

In NSW, this is done through Public Health Orders.

When you see a big, flashy news story that says ‘So and so was a prize idiot and did something that completely defied commonsense’, people want to intuit the content of the relevant Public Health Order instead of having a good old read.

We have a knack for turning days into weeks… ‘Individual responsibility’ shouldn’t be controversial

It’s 2017 and you’re getting ready for work.  You notice that you’re not feeling crash hot. Bit of a scratchy throat.  Maybe a bit congested.  You wouldn’t say no to a few more hours of sleep.  You have a bit of evidence in front of you to suggest that you’ve got the ‘flu–more precisely, you don’t know that you’ve got the ‘flu but there is a significant risk that you have it.

So what do you do?  You have a lot of work deadlines coming up.  You can’t really afford a day off.  Maybe you’re casually employed or otherwise precarious.  You weigh it up based on a range of options.

In 2017, there were 1,181 laboratory-confirmed deaths as a result of the ‘flu. Despite this, we still treat it as a matter of personal or individual responsibility to assess the risk.  What’s the alternative?

I was cautioned to surrender; this I could not do… When should allegations result in resignations?

Forget ICAC and the Register of Member’s Interests, for a moment.  Let us distract ourselves from questions about Gladys Berejiklian and Christian Porter.  The recurrently anachronistic King Arthur sits at his round table with knights whom he has appointed for their outstanding character, noble virtues, and exceptional integrity.  King Arthur himself feels that he can govern only if he maintains unimpeachable moral authority, and it is on this basis that he has been able to resist challenges from those who wish to claim the throne.

One day, a meeting of the Round Table is suddenly interrupted: a man bursts into the room and makes astounding allegations about Sir Lancelot.  Should Sir Lancelot resign his position?  Should King Arthur sack him?

Blackened roar, massive roar, fills the crumbling sky… No, Australia was not offered ‘millions of doses’

The Federal ALP lodged an FOI request to obtain the documents relating to meetings between the Commonwealth Government and the pharmaceutical company, Pfizer.  There had been reports in the Press–all stemming, it seems, from the ABC’s Norman Swan–that Pfizer had offered Australia a sweet deal to be an early trial site for Pfizer.  The story made absolutely no sense, and everybody from the Commonwealth and Pfizer denied that the story was true.  Despite that, it lived on in folk memory among the extremely online crowd.

The documents obtained by the Federal ALP under FOI were provided to Nine and News Corp media outlets (scroll to the bottom and then work your way up the documents).  Pfizer asked for a meeting with the ‘Minister and/or Departmental leadership’.  The public servant in charge of the whole of government strategy, Liza Schofield, attended the meeting as requested.  After accepting the invitation, Pfizer asked for a non-disclosure agreement to be signed.  Generally (and I speak from a lot of experience here) the practice is not to sign up to non-disclosure agreements for fairly obvious reasons (they can conflict with duties of public servants).  Pfizer said not signing the NDA would be fine: they’d modify the meeting to be at a lower level of confidentiality in response.

Nothing so far is unusual or odd here.  What is unusual is that the word ‘millions’ does not appear in the documents released in this package.

Apparently, in a letter dated 30 June–right at the start of the exchange about having an exploratory meeting–Pfizer wrote to the Health Minister and said:

We have the potential to supply millions of vaccine doses by the end of 2020, subject to technical success and regulatory approvals, then rapidly scale up to produce hundreds of millions of doses in 2021.

And this has caused journos to lose their minds.

I’m not bored or unhappy, I’m still so strange and wild… Big Daddy State must keep us safe

On 9 November 2018, Hassan Khalif Shire Ali set fire to his vehicle in the middle of Bourke Street, Melbourne, and then stabbed three people.  Mr Ali was fatally shot by police shortly afterwards.

I think about this incident a lot.  Mr Ali was a Somalian-Australian, he had a young kid, and he was known by friends and relatives as having some severe mental health issues, as well as some substance abuse.  I remember being worried about the backlash that the event would have on the Somalian-Australian and Muslim-Australian communities.  The Premier of Victoria, Dan Andrews was on the front foot in declaring it a terrorist event.

But what really scared me was the surprising overlap in rhetoric between mainstream Coalition and ALP voters: why had this been permitted to happen?  Why hadn’t ASIO, AFP, and VicPol stopped this from happening?

I think about it a lot.  Since starting my PhD to research political aspects of national security law, I’ll think about it every few days or so.  Public debate was guided by entirely the wrong questions.  This incident was a failure of Australia’s national security system because it hadn’t done more to police Mr Ali.

Today, the number of new confirmed cases of COVID in NSW is 830.  There were 65 new cases confirmed in Victoria, and 19 in the ACT.  Public debate is following similar contours: why had this been permitted to happen?  Why hadn’t the NSW Government done more, earlier, to stop this from happening?

Soft soap me with just a pocket full of oil… Do we need a ‘Truth in Electoral Campaigning’ provision in the ACT?

A very quick post while I’m buried in marking.

The ACT Legislative Assembly is currently holding an inquiry into how the 2020 Election went.  There are some very interesting submissions and some difficult ideas at play.

One of the big ticket items of the moment is whether there should be a ‘truth in electoral campaigning’ provision. Last year, the Assembly passed the Electoral Amendment Act 2020, which introduced a new offence for misleading electoral advertising that had delayed commencement so that it will apply to future elections but not the 2020 election.  This was to give everybody a bit more time to work out how the law would work and function.

Quick post: Facts, public debate, and emergency powers…

YouTube provides really great analytic information about the videos you upload.  I am genuinely amazed that I can get people to stay engaged with a legal topic for an extended period of time.

Two interesting things that I’ve noticed.  First, if I have more than one topic in a video, the point at which I change topics is a moment where I lose audience members.  This makes sense: if you’ve come for the main meal, you’re not likely to be that interested in the minor notes towards the end.

But, second, there are certain facts that some audiences really, really do not want to hear.  The greatest audience drop-off I’ve had in any video is in the one I uploaded yesterday, and the critical point is when I drop the fact that, under our federal system, administering quarantine is a State responsibility and the Western Australian Government dropped the ball with regard to the passenger who returned from India.

Public debate often characterises this as a left-right issue.  We got wild electoral outcomes (Trump, Brexit, re-election of Scott Morrison) because rightwing and centre-rightwing voters were playing with a different set of facts.  But this video is a pretty good indicator that maybe this is just a general feature of the electorate at large: people who invested a lot of time in the debate about whether or not the Victorian Government should have prevented people returning home from NSW and who then went on to claim that the Federal Government was responsible for the recent ‘outbreak’ in Western Australia really are resistant to information which contradicts those viewpoints.

An open letter to @ElizabethLeeMLA in support of e-scooters in the ACT

Dear Elizabeth Lee MLA (Leader of the Opposition, Shadow Attorney-General),

There is significant public debate about the use of e-scooters in the ACT, and you issued a leaflet to residents in the Inner North about contacting you with concerns.  The debate is overwhelmingly dominated by disparaging views about e-scooters, and this open letter seeks to open up the discussion more reasonably.

I am a regular user of e-scooters.  I use them to get from Braddon to the Australain National University regularly.  I use them to get from my office to Civic for lunch.  I use them to get out to Ainslie IGA for groceries.  Every time I use them, it’s a car off the road.

I regularly see cars.  Next to my building is a five-storey car park.  Under my apartment building is a car park.  Several of the buildings near me have multi-floor car parks beneath them.  If you were to ask me if I would rather see a few dozen e-scooters parked badly around the ACT or the hundreds of cars I see each day clogging up roads or needing land allocated to their parking, I would struggle to side with the cars.

I regularly see cars driven badly.  Spend any amount of time in Civic, and you will almost certainly see a car come close to hitting pedestrians in the ‘pedestrian priority’ area.  Spend any amount of time between Braddon and the ANU, and you will almost certainly see a car come within inches of hitting cyclists.  Just this week, I was nearly hit by a car going at 60km/h that ran a red light.  Last week, a car went through a pedestrian crossing in Civic and nearly knocked over a group of pedestrians.  Also last week, on my way to Ainslie, a driver ran a cyclist off the road entirely.  If I drive an e-scooter badly, I am limited in the amount of damage I can do at 25km/h.  In pedestrian-heavy areas, I’m limited to 10km/h, limiting my damage further.  In contrast, a car driven badly will kill people.

I regularly see unnecessary cars.  According to the Canberra Times in 2019, three of the top ten most popular cars in Canberra were the Ford Ranger 4×4, the Toyota Hilux 4×4, and Nissan X-Trail.  These monsters are allowed on our road, regularly driven poorly, regularly parked unsafely on the central strip along MacArthur Avenue, O’Connor, or along the side of the Gungahlin Drive, Bruce, or along Parkes Way, Reid.  And yet despite the way that these tanks are parked unlawfully, despite the risk that large vehicles pose to other road users, and despite the complete lack of need for them, we don’t have inquiries about banning them or regulating them further.

There is a lot of animosity from other road users towards e-scooters.  I have had older car drivers yell at me from their vehicles even though I was riding lawfully.  I have had cars drive menacingly near me in an attempt to intimidate me.  I even have cars drive illegally near me, to the danger of other cars on the road, just to yell at me from their vehicles.

Other road users need better understanding of the law.  The Road Transport (Road Rules) Regulation 2017 defines e-scooters as a personal mobility device (s 18A).  It was widely noted in the press that s 244D prohibits the use of personal mobility devices (and therefore e-scooters) on the road.  What was less widely noted were the exceptions contained within s 244D to this rule: the rule does not apply where there is no adjacent area (footpath, nature strip or shared path adjacent to the road) or where it is impractical to ride on the adjacent area.  In each place where I have had car users yell at me to get off the road, there was no available adjacent area (usually due to construction on the footpath, or because there was no footpath).

It is due to these exceptions and the widespread unavailability of adjacent areas that s 244E is important: when we are on the road, e-scooters must keep to the left, not ride into oncoming traffic, and must ride single-file.

The best solution to this would simply be to abolish s 244D entirely and have personal mobility devices follow similar rules to cyclists.  It is entirely commonsensical to allow e-scooters to use bicycle lanes where they are less likely to encounter pedestrians.  Abolishing s 244D would erode the sense of entitlement that many ACT car-drivers feel they have to exclusive use of the roads, including towards cyclists.

For all the ‘bad behaviour’ of e-scooters in the ACT–and I have definitely seen other riders engage in some less than sensible behaviour–it pales in comparison to the poor behaviour of car-drivers in the ACT.  Not only is dangerous driving of cars far more frequent than dangerous driving of e-scooters, the consequences of dangerous car driving is far, far more serious.  We need a reality check in this debate, and we should be supporting approaches that will reduce the number of cars on our roads that require vast quantities of land to be converted into parking spaces for them.

Warm regards.

Bendable figures with a fresh new pack of lies… More on standards of evidence and Christian Porter

Juror no. 77: You’d have to convince me he was innocent rather than guilty.

Let’s walk through this one carefully and slowly.  In a recent post, I talked about how we were not committed to criminal standards of evidence when we talk about public accountability.  Since that time, the Attorney-General, Christian Porter, has told the public that he is the subject of the complaint.  He denies the allegation and has said that he would not step down.

Unfortunately, he said a few other things.

If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print.

If that happens, anyone in public life is able to be removed simply by the printing of an allegation.

Every child we raise can have their lives destroyed by online reporting of accusations alone.

My guess is that if I were to resign and that set a new standard, there wouldn’t be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country.

This is not true, but social media chatter is very confused about what’s being discussed here and how we resolve this kind of problem.