The death of the Convergence Review

By on April 22, 2013 in Freedom of speech, Technology and online rights

A suggestion in the Australian today that the Convergence Review is pretty much dead in the water:

After more than two years of work, discussion and politicking, the federal government’s Convergence Review appears all but dead.

After Communication Minister Stephen Conroy’s suicide bombing of his media reform package last month, Media understands the Coalition is unlikely to adopt any of the review’s recommendations as policy platforms before the September 14 election or if in government.

In many ways, this is a shame, as I wrote here. The IPA has been arguing for more than a decade that technological necessitated a radical rethink of media regulation and law. There is simply no way that the old regulations – minimum Australian content requirements, for instance – could be imposed on the fluid and global internet.

Certainly, the Convergence Review itself failed to fully deal with these challenges, and got hopelessly distracted by the government’s regulate-the-newspapers zeitgeist. But despite this, the concept of convergence was, and still is, the main game.

In the Sunday Age yesterday I argued that technological change doesn’t merely destroy industries, it destroys legal and regulatory constructs. I wrote that while economies can adapt to change, laws are more inflexible:

One of the advantages of a free market is how it is able to adapt. Absolutely, those adaptations aren’t always pretty. The shift from a manufacturing to a service economy has been traumatic for some. When we can make custom industrial products in our own home, what happens to all the companies and workers doing that now? Yet we’ve been through this sort of rapid industrial change many times. And we always end up more prosperous.

Legal systems are not as flexible as the market. Politicians are backward-looking. Only this year was the classification system fixed to properly account for video games. Our laws haven’t caught up with the internet. Legislators have no idea what to do about music and movie piracy – our copyright laws are routinely ignored.

(At Catallaxy the IPA’s Julie Novak has some further thoughts.)

The examples I used in the column were Bitcoin and 3D printing, but the failure of the Convergence Review – surely one of the most ambitious government inquiries in recent years – demonstrates the point well.

The Australian government hasn’t even faced up to the challenges of the internet yet. How will they be able to deal with the bigger, more disruptive innovations around the corner?

Rule of law corroded by complex law

By on April 19, 2013 in Rule of law

A recent report authored by permanent secretary at the UK Cabinet Office, Richard Heaton, has warned that legislative complexity undermines the rule of law:

“The digital age has made it easier for people to find the law of the land, but once they have found it, they may be baffled,” Heaton says in the study, When Laws Become Too Complex. “The law is regarded by its users as intricate and intimidating.”

In his post of first parliamentary counsel, Heaton is also in charge of the office established in 1869 to improve the drafting of government bills.

“The volume of legislation, its piecemeal structure, its level of detail and frequent amendments, and the interaction with common law and European law, mean that even professional users can find law complex, hard to understand and difficult to comply with,” he says.

“Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law.”

Of course the same thing can be said of many of Australia’s laws. And not only is complexity a problem in relation to particular laws there is also a problem of complexity at the macro level. As IPA research has shown, Australia has over 100,000 pages of currently operative Commonwealth Acts. This is a huge figure and it doesn’t even include Acts that apply at the state level nor Commonwealth, state and local government regulations.

The sheer volume of law infuses the legal system with complexity. And the more law there is, the more lawyers are needed to advise us all on how to run our own lives and businesses.

In relation to the growth of criminal law in the US, the American conservative think tank the Heritage Foundation has proposed a very interesting response to this problem of legal complexity:

By heavily regulating criminal procedure alone but leaving the definition of crimes and offenses almost entirely in the hands of the political process, the Supreme Court has left open only one option to legislators seeking to address the problem of crime: Make more and more conduct criminal. The result in recent decades has been the “overcriminalization” of the law, with thousands of criminal offenses in federal statutes and hundreds of thousands in federal regulations. No person could possibly be expected to know them all or even to know all of those that may apply to his daily activities. Yet the law still clings to the maxim that ignorance of the law is no excuse at a time when some ignorance is inevitable, particularly regarding malum prohibitum offenses, or crimes outside the category of inherently harmful or blameworthy acts.

It’s an idea deserving of consideration. But we shouldn’t lose sight of the causes of this problem – there’s just way too much law, and it’s far too complex. Repealing laws and allowing a vibrant civil society to thrive is the best way of fixing this problem.

The rule of law is a fragile thing. Building complexity into the law threatens to replace the rule of law with the rule of lawyers.

Freedom of speech threatened by Tasmanian bill

By on April 18, 2013 in Freedom of speech

“Proposed changes contained in the Reproductive Health (Access to Terminations) Bill 2013 threaten freedom of speech and freedom of conscience,” said Simon Breheny, director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

The bill has passed the Tasmanian House of Assembly and is now set to be debated by the Tasmanian Legislative Council.

“The bill proposes a fine of $65,000 or a 12 month jail term for the newly created crime of protesting in an area within a radius of 150 metres from an abortion clinic. This is an inappropriate limitation on freedom of speech.

“General laws against intimidation already exist in the law and they are appropriate restraints on unacceptable behaviour.

“Singling out particular premises for special treatment undermines equality before the law. This bill does not make it illegal to distribute material outside supermarkets or sports grounds, for instance. The Tasmanian government should not ban protests, whether they occur outside an abortion clinic or a timber mill.

“The bill also threatens freedom of conscience by forcing doctors who have a conscientious objection to abortion to refer patients to another doctor who does not have such objections. A fine of $32,500 applies to counsellors who refuse to contradict their beliefs. This is a clear and unacceptable infringement of freedom of conscience,” said Mr Breheny.

For media and comment:
Simon Breheny, Director, Legal Rights Project, sbreheny@ipa.org.au, 0400 967 382

The “Stalinist” ban on door-knocking

By on April 18, 2013 in Elections and voting, Freedom of speech

Door-knocking is one of the most basic political campaign tools. It’s one of the simplest ways for politicians to sell their message and gain support from constituents; it’s a great feature of democracy.

But the practice has been banned from public housing estates:

Last month, the Department of Human Services introduced rules that banned politicians from door-knocking estate tenants and prohibited residents from posting political material on noticeboards and holding political rallies in common areas.

Socialist councillor Stephen Jolly – apparently deaf to irony –  described the changes as “Stalinist”:

“Why should public housing tenants have fewer rights than the rest of us?” he said.

“It’s like North Korea – it’s restricted democracy. Where is it going to end? Are they going to tell them what TV stations they are going to watch?”

But Jolly is right. The ban on door-knocking, posting political material and holding rallies undermines freedom of speech, and it infantilises those who live in public housing.

It would be tempting to put this down to bureaucratic overreach, since the original decision was made by the Department. But disappointingly, the decision has been backed by Housing Minister Wendy Lovell. The Victorian government needs to reconsider its position.

If people choose not to listen when a candidate knocks on their door they’re free (and probably right) to do so. But banning the practice is an undemocratic move and operates as a limitation on free speech.

UK Press regulation threatens free speech

By on April 17, 2013 in Freedom of speech

David-Cameron-001The proposed media regulations in the United Kingdom have eerie echoes of the Gillard government’s failed media reforms. Following the phone hacking scandals and shocking actions of some British media, cries (fanned by the interest group Hacked Off!) have risen for greater protections of privacy from the press. That many journalists have been arrested and prosecuted for their appalling behaviour does not seem enough for proponents of the reforms, instead using the sorry stories of hundreds of victims to bolster their arguments. Fortunately, not all victims are in favour of shackling the press. A Royal Charter plans to bring in a complex series of nine separate bodies to “monitor” the press and enforce fines and penalties.  The most crucial body, the Main Board, is not allowed to have any serving editors and of the twelve positions available, only five are reserved for those practicing journalism. Like the Gillard government’s own proposals, the membership of the these regulatory bodies is deemed as ‘voluntary,’ however if you are not a member you face being hit with crippling ‘exemplary damages’ and fines. Not only is membership enforced with state coercion, it is not even adequately defined as to who should be members.  As the proposed laws are so broad, those with blogs and Twitter accounts with modest followers may find that they have to join too, even if journalism is not their profession.  These would be the first legal restrictions on publication that Britain would have enacted in over 318 years!

As Daniel Hannan has pointed out:

What begins as an attempt to protect privacy ends with politicians deciding which opinions are acceptable.

The Royal Charter is vague on many key points, including on what the reforms will actually cover. Though it is constantly referenced as ‘press regulation,’ the sweeping new powers cover the internet as well, though it is still very unclear (even to the politicians writing the law) as to how much of the web will fall under its reach. Tweets, Facebook statuses, family blogs: all could feasibly be included under the new self-regulatory scheme; even foreign owned papers or businesses aiming messages at a ‘British audience’. All that is specified is that it must be ‘news-related’ material; be it opinion, gossip or discussion of the latest current affairs. As UK politician Nigel Farage expressed, “the fact that in the proposed regulation all things and all people are covered, is very disturbing.” The Spectator has been one of the few media bodies to robustly stand up to this onslaught to their free speech:

The chilling effect is the most sinister and pervasive form of censorship, and something no robust, plain-speaking democracy should tolerate.

“Unexplained wealth” laws reverse the burden of proof

By on April 16, 2013 in Property rights, Rule of law

The Queensland state parliament Legal Affairs and Community Safety Committee has just given the green light to “unexplained wealth” laws that reverse the onus of proof and undermine the presumption of innocence. The laws are part of a broader response to organised crime but they represent an attack on fundamental legal rights:

In a research brief prepared for the government by the parliamentary library and research service, the laws are explained as meaning “in principle, prosecutors would not need to prove, on the balance of probabilities, that a person’s property/benefits were obtained via criminal activity. Instead, if a person has accumulated wealth that does not seem commensurate with his/her lifestyle and livelihood, that person would bear the onus of proving that the wealth was legitimately acquired”.

Last month I wrote about the push for these laws by the Commonwealth government. As I explained at the time:

It’s becoming common practice for the Gillard government to pass laws that reverse the onus of proof. The government’s dangerous draft anti-discrimination bill also includes a provision that reverses the burden of proof.

Now it appears the Gillard government is not alone.

UPDATE: The Queensland Law Society shares our view on this issue. Glen Cranny explains on ABC Radio here: http://blogs.abc.net.au/queensland/2013/04/queensland-law-society-has-concerns-about-unexplained-wealth-legislation.html

Blocking the sun avoids cancer risks too

By on April 16, 2013 in Nanny State

Sun bedSadly it seems that the failed State government policies aren’t being ditched, they’ve being expanded. The Australian is reporting that Health Ministers will consider a national ban on commercial sun beds:

A national ban on commercial sunbeds will be considered by health ministers this week amid evidence that Australians wrongly believe tougher regulation has made tanning units safer to use.

Apparently it is necessary because people are taking the wrong message from regulation:

[A] survey in the latest Medical Journal of Australia shows many people have taken the wrong message out of the recent sunbed debate, believing they are now safer to use following the introduction of regulations in most states and territories requiring solarium operators to be licensed, display health warnings and ban people at high risk of skin cancer.

That’s one argument. Another might be that a State-based retail ban on commercial sunbeds is ineffective because people can buy their own from another State. Therefore the solution has to be a national ban to stop people buying their own  private tanning beds from another State of importing them.

Call me crazy, but if people are prepared to shell out thousands of dollars so they can have reliable access to UV rays 24/7, they’ve probably thought about the merits and consequences of their purchase.

It’s hard to understand how people could conclude that display health warnings on the risks of cancer could be misleading.

As I argued earlier this year, bans on sun beds fail to address the problem at hand – that people get skin cancer – for a very simple reason:

Meanwhile a giant, publicly available nuclear ball of gas emitting UV rays, colloquially known as the sun, continues to operate unregulated.

Perhaps it has not occurred to Ministers that people actually factor in these risks when they use sun beds and decide to do it anyway? And if they don’t have access to a sun bed for tanning they might tan in the sun, as people have for thousands of years?

Obesity warning: Watch out for ‘Big Plate’ pushers!

By on April 15, 2013 in Nanny State

Everything is now linked to obesity. Salt. Fat. Sugar. Exercise, or the absence of. Plates. Wait … plates?

According to new research using adult-sized plates for children may lead to kids misunderstanding portion size says an article in the Daily Telegraph:

Dishing up your child’s dinner on an adult-sized plate causes portion distortion and could prompt youngsters to over-eat.

Research found 80 per cent of children ate more when serving themselves on full-sized plates.

It’s ironic since most nouvelle cuisine seems to be served on absurdly large plates proportionate to the size of the food served, and small plates always seem to be on offer at buffet restaurants.

For parents the issue is what to do? The assumption from the research is that parents should buy smaller plates for kids, though apparently that is not so easy:

Nat Swan serves son Beau from a toddler-sized bowl. The 11-month-old, who eats healthily, lets his mum know when he has had enough.

Apart from toddler bowls, she has only seen child-sized plates with portion details online: “They are not readily available.”

The more concerning consequence may be government regulation. As Chris Berg identified in this 2009 article one of the key conclusions of the National Preventative Health Taskforce was to actually regulate portion sizes for food. It sounds crazy, but their aim was to cut up-sizing fast food servings. But if big plates also contribute to obesity then maybe they will have to be tackled as well?