Judges are not perfect


Michael Sexton SC

Michael Sexton SC makes a good point ($) in The Australian today:

…the Tasmanian legislation — and similar legislation in some of the other states and territories — poses real problems on its face for churches and other religious groups.

To take an example, as anyone who has read Brideshead Revisited will recall, it is Catholic teaching that unmarried heterosexual couples are “living in sin” and so doomed to the eternal fires of hell.

Why is it not open to such a couple to complain that they are offended and insulted by church publications to this effect because those publications are made on the basis of their relationship status?

It then would be up to the church to argue that a reasonable person would not have this reaction but that decision might depend very much on the personal views of the Anti-Discrimination Commissioner.

This last paragraph is an important point, and it’s one that tends to be missed by lawyers. Judges are not automatons. Judges are people that bring their own values to bear on legal decisions they are required to make. They are not infallible, and personal biases often play a role.

The correct response is to ensure that contentious decisions about thoughts, ideas, and the limits of public debate are not left to judges, but are debated freely by individual citizens.


Abbott discusses 18C on the Bolt Report


This exchange on the Bolt Report earlier today is worth a read:

Back home, you dropped reforms to the Racial Discrimination Act, to allow more free speech, saying this would alienate the Muslim community, was that decision a mistake, don’t we need more debate about race and about Islam.
Well we certainly need to have a very vigorous community conversation on these subjects. We need to face up to the facts that Islamist terrorism is a deadly threat to everyone who doesn’t share a particular mindset.
And the Racial Discrimination Act, was that a mistake to drop the reforms?
And Andrew, what’s been absolutely obvious, for more than a year now, is that this would be terrorist empire is coming after everyone who doesn’t share their particular world view.
And the Racial Discrimination Act, was it a mistake to drop that?
When it comes to Section 18c, I made the decision, that there were some forms of speech in this country that I don’t want to see at all, I don’t want to see the hate preacher’s at work, I don’t want to see the advocacy of genocide and if as prime minister…
Just going back to the Racial Discrimination Act, was that a mistake to drop that reform?
No I don’t think it was a mistake, I think the circumstances had changed from three years ago when we made that commitment, to twelve months ago, when we dropped that commitment, because what we’ve seen, in more recent times, is the additional effectiveness and impact of these hate preachers. Now, I’m not going to go around and on the one hand and say that speech should be absolutely free, and frankly that I would like to close down some of these hate preachers because what they are doing, it may not strictly speaking be incitement to violence and terrorism, but it is effectively justifying violence and terrorism and I doubt very much that there should be a place for that in our society at this time.

The full interview can be viewed here.

Abbott’s attempt to link section 18C and hate preachers is misleading. Here’s why.

Complaints to the Australian Human Rights Commission under section 18C are not made public, but if the dispute resolution process at the commission is unsuccessful, the case goes to court. And no court case has been brought against the hate preachers Abbott is talking about under section 18C.

Abbott is right to be concerned with incitement to violence. But failing to see the vital distinction between threats of violence, incitement to violence and violence itself on the one hand, and the use of language which offends, insults, or humiliates on the other is dangerous. There are several laws covering that first category of conduct (here is a non-exhaustive list of examples from around the country: section 545B of the New South Wales Crimes Act outlaws intimidation or annoyance by violence; section 75 of the Queensland Criminal Code outlaws threatening violence; section 338E of the Western Australian Criminal Code Act Compilation Act outlaws intimidation; section 19 of the South Australian Criminal Law Consolidation Act outlaws unlawful threats; section 192 of the Tasmanian Criminal Code makes illegal the causing of an apprehension of fear; section 35A of the Australian Capital Territory Crimes Act outlaws threats of violence; section 200 of the NT Criminal Code Act outlaws threats), and there ought to be none covering the second category.

This is the heart of the debate about section 18C. The distinction between words which cause violence and words which cause hurt feelings is critical to the question of appropriate legal limits on speech. Abbott is wrong to blur that divide.


NSW Young Liberal President warns against “muscled-up” ICAC


NSW Young Liberal President Alex Dore has a terrific piece in the Sydney Morning Herald today criticising moves to grant increased powers to the Independent Commission Against Corruption:

…it makes sense to reconsider ICAC’s structure and reach, but time and time again ICAC has sought to do the opposite. Rather than work within the confines of its jurisdiction, it has sought to expand it.

Earlier this year, it sought to argue that all sorts of acts – for example, lying to a public official – should constitute “corrupt conduct” and therefore fit within the jurisdiction of ICAC to investigate.

It took an appeal by the eminently capable Margaret Cunneen for the NSW Supreme Court and the High Court to reject ICAC’s overstep. How many others could command Ms Cunneen’s intellect, resources, and guts to successfully do the same?

“[ICAC’s interpretation] would also enable the ICAC to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration,” read the majority High Court judgment.

But this defeat, and the corollary legal costs, has done nothing to dent ICAC’s ambitions. This week, the state government has given ICAC the power to launch criminal prosecutions for common law offences by issuing a court attendance notice on the advice of the Director of Public Prosecutions. It insists that it is simply restoring powers rejected by a local court judgment and that it can already do so for statutory offences.

In a liberal democracy, conservatism demands that institutions that have served us well be protected: the rule of law, including procedural fairness, is amongst them.

One of the great things about Australians is our healthy skepticism of any institution which gains too much power, and if we’re honest with ourselves, isn’t that exactly what ICAC has become?

Read the full article here.


Free speech under attack in Tasmania


Freedom of speech is under attack after the Tasmanian Anti-Discrimination Commissioner’s decision to hear the case against Archbishop Porteous.

Tasmania’s Anti-Discrimination Commission has decided the Catholic Church has a case to answer in response to a complaint made by Greens candidate Martine Delaney this year. Delaney complains that a booklet outlining Catholic teachings on marriage, which was distributed to parents of Catholic high school students throughout Australia, is offensive and therefore breaches Tasmania’s anti-discrimination laws.

“The complaint against Archbishop Porteous ought to have been dismissed,” says Simon Breheny, Director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

“The booklet produced by the Australian Catholic Bishop’s Conference carefully outlines the Catholic position on marriage. The booklet was distributed to parents of students at Catholic schools. The booklet is a reasonable statement of Catholic teaching couched in a measured tone.”

“If the Catholic Church cannot distribute a booklet on Catholic teaching to Catholics, who can it distribute them to?”

“This case highlights the attack on free speech represented by anti-discrimination law. It should never be a crime to offend a person.”

“The position outlined by the Catholic Bishop’s Conference is the position that had been taken by every leader of the two major political parties right up until last year – and it is now potentially illegal,” says Mr Breheny.

The decision not to dismiss the complaint is relevant in the context of the upcoming plebiscite on the redefinition of marriage.

“The legitimacy of the result in the upcoming plebiscite depends upon the existence of a free and open debate. Both sides must have the opportunity to present a case to the Australian people,” says Mr Breheny.

“This is why both supporters and opponents of same sex marriage ought to be concerned about the complaint against the Australian Catholic Bishop’s Conference,” says Mr Breheny.

For media and comment: Simon Breheny, Director, Legal Rights Project, Institute of Public Affairs, [email protected] or 0400 967 382.


The battle for Ningaloo Station


Ningaloo Station is a large pastoral lease about 130 kilometres south of Exmouth, WA.

The station has been managed by the Lefroy family since the 1930s. The Lefroys currently run the station as a camp site, dedicated to conserving this pristine slice of Australian natural beauty.

The Lefroys have been in a long-running battle with the Western Australian government over the future of Ningaloo Station. The current lease has been renewed from 1 July 2015, however a condition of renewal was that the lands minister could remove parts of the land to be managed by government, as provided for under the Land Administration Act 1997.

In 2002, the then-Labor government attempted to do just that. The 22 hectares of land represented not just 48% of the entire pastoral lease but also the lion’s share of the critical infrastructure, including watering points, laneways, holding paddocks, sheep yards, an air strip, workshops, and the heritage-listed Ningaloo homestead.

After initially agreeing not to excise land from pastoral leases in the lead up to the 2005 state election, the Coalition government is now attempting to do just that. Lands Minister Terry Redman has indicated that he wants to incorporate a series of local pastoral leases into the neighbouring Ningaloo Marine Park.

The land should remain in the hands of the Lefroy family. From both an economic and a conservationist standpoint this is the most sensible course of action, a point well made by Pastoralists and Graziers Association of Western Australia president Tony Seabrook:

“People up there who know that country and know it well.

“They are far better off to manage it than a government department working a five-day week with little understanding of how the rangeland works.”

Bureaucratic management of the station will not improve the environmental outcomes in this beautiful part of the world. Private operators are incentivised to manage resources well.

The Lefroy family has also spent considerable sums of money over many years improving and developing the land. They have the right to enjoy the fruits of their labour.

The Lefroys should be left to manage their own small piece of paradise.


Potato hero Galati loses court battle but vows to keep fighting the war

WA farmer Tony Galati

WA farmer Tony Galati

The Western Australian government restricts the number of potatoes that farmers are allowed to grow.

That’s not the start of an awful joke, it’s the incredible reality for WA’s potato producers.

I’ve previously commented on these absurd arrangements in WA. And after initial resistance, the Barnett government has finally relented and will abolish this antiquated tool of competition suppression.

In the meantime, producers like Tony Galati are being pursued through the courts for growing too many spuds:

Spud Shed owner Tony Galati has lost part of his battle with Western Australia’s potato industry regulator, but has vowed he will continue to grow as many potatoes as demand requires.

To his credit, Galati isn’t giving up:

Mr Galati said the State Government should be embarrassed for allowing a Supreme Court injunction against potato growers for merely growing potatoes.

“I can’t believe it. We’ll definitely fight back,” he said.

“I’m not afraid of going to jail.”


New ban on live betting ads to hit NSW in 2016


Back in 2013, the Gillard government started down the path to banning live betting advertising at a Commonwealth level.

A code regulating the broadcast of live betting odds during sporting matches came into effect on 1 August 2013 following agreement by media companies to be regulated by the Australian Communications and Media Authority after they were threatened with a broader legislated ban.

In a textbook example of the law of unintended consequences, the enforcement of the new code precipitated a significant increase in the number of gambling ads overall. Not to be discouraged by an obvious case of policy failure, the NSW government now wants to finish what Julia Gillard and Stephen Conroy started.

Seemingly without any thought to the fact that a government restriction on what ads a broadcaster can air is a clear attack on free speech, the NSW Liberal government will be enforcing the new laws from next year:

From March 1, live odds advertising will be banned during sporting fixtures that last four hours or less, with maximum fine for breaches up to $5500.


Is a sugar tax such a bad idea?


Nick Cater takes down the ‘sucrophobes’ in his column ($) in The Australian today:

The first thing that should trouble us about the sucrophobes is the simplicity of their proposal. The social, psychological and physical causes of obesity are complex. Unwanted kilos of body mass do not succumb to miracle cures, raising the price of sugar ­included.

Equally revealing is the fact its advocates seldom talk about revenue. It suggests their proposal is not principally about collecting money but has a far more lofty purpose.

Rest assured, the Obesity Policy Coalition tells us in its submission to the government’s tax review, a sugar-sweetened beverage tax would raise “considerable revenue” while increasing demand for water and low-fat milk. Yet neither proposition is backed by evidence; we are expected to take them on trust.

Fat tax proposals, like so many public policy blunders, are driven by the imperative to do something in the face of an imagined crisis. We have been struck by an “obesity pandemic”, we are told. Health costs are not just rising, they are “spiralling out of control”.

The sucrophobes back their arguments with scareynomics — the use of terrifyingly big numbers in an attempt to persuade us that their absurd proposal makes ­perfect economic sense.

If we are to believe a recent report from Obesity Australia, for example, obesity costs Australia $58 billion, a figure equivalent to 40 per cent of the health budget.


Another lazy tax grab

A9X9B5 Tax Rate button on calculator

Latika Bourke at the Sydney Morning Herald reports on a Labor commitment to increase the tobacco excise if elected:

Labor is planning to raise taxes on cigarettes if elected to pay for the so-called Gonski education reforms, potentially pitting a slug on smokers against any Coalition plan to increase the GST rate or impose it on fresh food.

Sources have told Fairfax Media that the federal opposition is considering another round of three 12.5 per cent increases, which sources said would net $40 billion over 10 years.

The increase would push up the cost of cigarettes in Australia to well beyond $1 per stick, making Australia’s tobacco among the most expensive in the world.

This is mindless policy from an opposition that has offered very little by way of substantive ideas for reform. Instead of engaging in a thorough discussion about taxes, revenue, spending, and the size of government Labor has opted for rank intellectual laziness in the form of yet another attack on smokers.

On the plus side, Labor has handed the Liberal Party a great opportunity to stand up for its values.


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