Reading, writing, arithmetic are the branches of the learning tree… Independence and the ABC

I’ve argued before that debates about ABC funding are poorly constructed.   The nutshell point: we should have a clear vision of what we want from the ABC before we get embroiled in arguments about its funding:

That clear vision of the public good might sound subjective, but a pluralist approach is amenable to reasons.  That is, a clear vision of the public good should inform programming and editorial decisions and we can engage in criticism where we can argue that decisions are clearly not motivated by the public good.  Calling a person standing for office a ‘c-word’, for example, seems to fall outside anybody’s reasonable articulation of the public good.  The jester liberalism nonsense that pollutes Wednesday night ABC in general is very difficult to justify with a reasonable conception of the public good.

The argument also works to motivate a defence of the ABC.  If there were a clear vision of the public good articulated by the ABC, the public would be more inclined to defend it against budget cuts.

We still don’t have that clarity of vision in the debate, but we do have a new element: the role of the Minister in running the ABC.  The prevailing wisdom is that we need an ABC that is independent of the ABC, with a few voices (like that of the former Chair, Justin Milne) saying that there needs to be a ‘conduit’ between the Government and the ABC.  It’s a point worth interrogating.

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Quick Post: The argument for why your employer should be able to sack you for political speech… sometimes.

Cricket Australia sacked one of its employees (apparently) for her public comments in favour of changing Tasmania’s abortion law.  With the usual caveats about never believing what you read in the newspapers, that looks terrible.  And the public response is always (quite reasonably) what should we do at the general level to prevent this specific thing from occurring.  Based on the article, I think that Cricket Australia should not have sacked Angela Williamson and, certainly, the argument that she brought the organisation into disrepute is rather hard to sustain in the face of the public backlash.

So I want to move as quickly as I can to the general point about private regulation of speech.  And I want to do that via a general comment about public commentators’ habit of looking only at one side of the equation.  We perceive that somebody has suffered some wrong, we get outraged, and we wonder how we can protect everybody in that situation.  But the lived experience has been that these protections get disproportionately used by the powerful to protect themselves from scrutiny or sanction.  Classic example: the First Amendment has been a far better friend to Klansmen and Nazis than it has been to refugees and paupers.

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?

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?

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.

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.