Misguided call to establish racial vilification crime

Locking someone up for saying things we don’t like is a pretty blunt response. And it’s certainly not an appropriate use of state power.

But Dr Helen Szoke, Australia’s Race Discrimination Commissioner, disagrees. Yesterday she said we should consider making racial vilification a criminal offense:

Speaking at the National Press Club in Canberra yesterday, Dr Szoke said the issue deserved serious consideration.

”I think it’s time we actually looked at that,” she said.

Giving police the power to investigate cases of racial vilification is a completely inappropriate use of police resources. It would mean a significant increase in their workload and further strain on an already stretched court system.

But further to the point it achieves nothing constructive.  A far better outcome would be for those who disagree with a particular expression to actually voice their opposition, rather than frantically calling for a police response.

Dr Szoke also had another incredible response relating to free speech when asked about Coalition plans to repeal s 18C of the Racial Discrimination Act:

Asked about the Opposition Leader Tony Abbott’s promise to amend anti-discrimination law to narrow the definition of racial vilification, Dr Szoke said it was important to retain protections against race hate.

Mr Abbott has argued the laws in their current form infringe free speech.

But Dr Szoke said most human rights were not absolute.

”This is particularly so in relation to freedom of speech,” she said.

Why? And why does the Race Discrimination Commissioner get to decide which human rights are most important? Surely the opposite is true – freedom of speech needs to be untrammelled so that we can articulate and defend freedom in general.

As Mark Steyn has said “Give me the right to free speech, and I will use it to claim all my other rights.”

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The 1st Amendment protects violent video games being sold to children

America takes free speech seriously. In June this year the US Supreme Court struck down a California law that banned the sale of violent video games to children.

The ruling is the latest in a long line of decisions based on the first Amendment which restrains American lawmakers from ‘abridging the freedom of speech.’

Justice Antonin Scalia, writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association, No. 08-1448, said video games were subject to full First Amendment protection.

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Scalia wrote. “That suffices to confer First Amendment protection.”

In Australia the debate is on about whether a similar provision ought to be enshrined in our constitution. Whatever might be your opinion on that matter it’s certainly a debate worth having.

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Right to silence to be eroded in New South Wales

In criminal investigations it’s said that ‘no man is bound to accuse himself.’ And although that’s still technically true the big legal idea that this phrase tries to capture will be significantly eroded in the state of New South Wales if the government has its way.

The NSW premier has signalled changes which would mean that juries and judges could draw an adverse inference from an accused’s exercise of their right to silence.

It’s fair to say the right will be gutted. What’s the point of a right to silence if your exercise of it can be painted in a bad light?

One can just imagine NSW public prosecutors licking their lips at the prospect of being able to make a big deal out of a defendant’s silence. In some cases this will make their job a hell of a lot easier.

Premier O’Farrell’s justification is that the right to silence in its current form is too easily exploited.

We don’t see it. Judges already have the power to instruct juries to draw an adverse inference when an alleged criminal fails to assist police with their investigation. Surely this is enough.

Before formal interviews with the police an accused must be told of their right to silence. This is fair enough. Most people are understandably shaken up upon being arrested and the right to silence provides an opportunity to gather one’s thoughts and call a lawyer. But the new caution, including the words ‘it may harm your defence,’ appears to be designed to illicit an immediate – and likely panicked – response to police.

It’s concerning that NSW wishes to join with other governments around the world that are slowly eroding basic rule of law principles. The right to silence is central to the idea of a fair trial. Weakening it in the way proposed by the NSW government would be extremely heavy-handed, and a clear step in the wrong direction for liberty.

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‘Flexible’ foreign investment laws are no laws at all

The most basic idea behind the rule of law is that there are … well, laws. These laws should be clear, stable and made by elected representatives. But this basic foundation of our legal system is often ignored in the name of “smart” regulation. Usually this involves a regulatory framework consisting of broad “principles” or general “guidance” rather than clear and binding laws.

One keen proponent of “smart” regulation is the Foreign Investment Review Board. The FIRB chairman this week opposed the idea that the national interest test should be codified, and stated, “[w]e’re not rules based.

This is a shocking admission for those of us concerned with the rule of law but it’s nothing new for investment bankers and M&A lawyers that regularly deal with FIRB. The long-standing policy justification is that “laws … too often … stop valuable investments.”

Many other regulatory agencies agree with this approach, maintaining that legal flexibility allows them to effectively tackle “changing conditions”. No doubt this is true. And allowing things to be decided on a case-by-case basis almost sounds reasonable until one realises the troubling consequences of such an approach.

First, it doesn’t allow businesses to plan their investments with certainty – a key to the promotion of economic growth. Secondly, the lack of black letter law makes appeals impossible. And thirdly, regulatory flexibility translates directly to regulatory discretion. And a high degree of discretion in the hands of bureaucrats is undemocratic and thoroughly undesirable.

Being unconstrained by rigid rules sounds great but legal flexibility is contrary to the rule of law.

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Human rights lawyer vs freedom of association

There has been a call this week for Queensland to strengthen its anti-discrimination laws.

The attack on the current regime has come after a tattooed man was refused entry to a Gold Coast nightclub.

The man says a number of clubs have refused him entry due to a ‘no visible tattoos’ policy.

Human rights lawyer Ron Behlau, of Nyst Lawyers, said these polices were “inherently discriminatory” and called for an overhaul.

But calls such as these are in direct opposition to the right of individuals to freely associate with a community of people who share their values and preferences.

It should be the right of any private business owner to decide for themselves who their customers will be. No individual should have the right to use the power of the state to force their patronage on any business.

To do anything else is an affront to freedom of association.

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MP wants government-sponsored newspapers

The federal government’s appetite for control over the media is insatiable.

According to one Labor MP the proposed public interest test on media ownership simply wouldn’t go far enough.

Dr Andrew Leigh, MP for Fraser, is set to deliver a speech today that will propose government subsidies for newspapers that deliver “public interest journalism.”

The proposal stems from his belief that we require “a better-informed public” after the “problems” that have arisen out of technology and competition.

And here I was thinking those two things were producing some pretty good results.

Dr Leigh displays distrust in the ability of Australians to educate themselves about political matters and disdain for those that are simply not interested. He even has a rather clinical diagnosis for people that choose to spend their time doing other things: politically disengaged.

The proposal to subsidise newspapers is based on intensely patronising assumptions and would obviously be open to the most brazen political manipulation.

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Private data no more

News has broken this morning that an alleged Canadian spy sold classified Australian intelligence documents to Russian agents.

The scale of the illegal disclosure is vast. Comparisons have been made to the huge numbers of military documents US Army Private Bradley Manning allegedly handed over to WikiLeaks.

This obviously raises serious concerns about the Australian government’s ability to keep important data secure.

And it’s not the first time the government has had major issues with confidential information.

A 2006 study into Centrelink found 800 cases of illegal snooping by 100 staff.

Over the three year period from 2008-2010 1000 Medicare employees were investigated for spying on personal information.

And there are probably many cases of government misuse and mismanagement of private information that are simply never reported.

But even in the face of examples like these the Attorney General’s department still thinks it’s a good idea to make ISPs effective wards of the state: forcing them to log every site we visit, every Facebook and Twitter message we send and receive.

There are already a number of reasons why we should be suspicious of the government’s proposed data retention regime. The numerous cases of bureaucrats mishandling our private data should make us even more sceptical of these draconian internet surveillance proposals.

We simply can’t trust them with our private data.

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Gillard government internet surveillance laws unprecedented threat to civil liberties

“The Gillard Government’s proposed internet surveillance laws will fundamentally erode civil liberties and should be rejected outright,” said Simon Breheny, director of the Rule of Law Project at the free market think tank the Institute of Public Affairs.

Last week the Commonwealth Attorney General’s department released a discussion paper Equipping Australia Against Emerging and Evolving Threats proposing an extraordinary range of government powers over telecommunications and internet.

The proposals include granting power to 16 state and federal security agencies to monitor citizens’ private communications, including Facebook and Twitter accounts. It also proposes giving the Attorney General the power to unilaterally vary warrants and imposes the “data retention” regime which would require internet service providers to record and store all their users’ activity for two years.

“There are huge concerns that the government is considering allowing the Attorney General to arbitrarily vary a warrant without requiring a court order. Making it a crime to refuse to hand over login details to security agencies is also in direct opposition to the right to silence.

“This is completely unacceptable.

“These proposals are a spectacular power grab by the Attorney General’s Department. They are incredibly excessive and completely unjustified. There is no case for this unprecedented intrusion by the government into the lives of citizens and we cannot trust the government with our private data.”

“This is a government that has undermined the authority of parliament and is hostile to freedom of speech. It now appears to have citizens’ private communications on the internet in its sights,” Mr Breheny said.

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