Plain packaging dissent – why it didn’t happen in Australia

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As FreedomWatch reported last week, the United Kingdom has now followed Australia’s lead by introducing mandatory plain packaging.

This is a victory for the Nanny State, but the legislation’s passage served to highlight one of the problems with Australian democracy: A culture of party discipline is strangling parliamentarians’ ability to represent their constituents and vote for what they believe is right.

Unlike in Australia—where plain packaging passed with bipartisan support—the UK legislation was put to a conscience vote. It was opposed by 113 MPs, 104 of which were Conservatives—accounting for more than one third of the prime minister’s party.

Such a situation is simply unimaginable in Australia.

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Mandatory data retention is about corporate regulation, not national security

The IPA’s Chris Berg has written an excellent piece, which appears in the Australian Financial Review today, on the political economy of the Abbott government’s proposed mandatory data retention regime:

Terrorism is a very real problem. The existence of the Islamic State in Iraq and Syria has heightened the terror threat. If there are serious gaps in our anti-terror law framework, they should be filled. The government has spent the past six months doing so.

However, the data retention bill the government has put forward – which requires telecommunications providers to store masses of data on their customers for no other purpose than if a law enforcement agency or regulator wants to have a look at it in the future – is not a targeted anti-terror law.

If data retention is just for terrorism, the government could legislate to ensure it was just for terrorism. But from what we know, both the Australian Competition and Consumer Commission and the Australian Securities and Investment Commission are likely to get access to the new data.

Read the full piece here.

The mythical conflict between freedom and non-discrimination

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Should businesses have the right to refuse service where the service contradicts their religious beliefs? Renae Barker considered the issue in a recent article in The Conversation, referring primarily to the case of the Northern Ireland bakery which refused to bake and decorate a cake with the words “Support Gay Marriage”, which has been dubbed “Cakegate“.

This sort of conflict between (typically small) businesses refusing services to gay weddings and the like, is astonishingly common. Barker lists some other instances, including the English guest house which had to pay damages when they refused to rent a shared room to a sex couple; a case currently underway in Oregon where a bakery declined to provide a wedding cake for a gay couple, and in Australia, Christian Youth Camps breached equal opportunity laws when they rejected a booking from a group to “run a suicide-prevention camp for same-sex-attracted young people.”

I could also add a number of extra US cases to this list, including the Colorado baker which was court-ordered to make cake for a gay wedding; the Washington florist who breached anti-discrimination laws for refusing to provide flowers for a gay wedding, and the New Mexico case which found that wedding photographers are now “compelled by law to compromise the very religious beliefs that inspire their lives.”

Barker argues that there is a “quest to find a balance” between the conflicting rights of exercising religion, and of the gay community to be free from discrimination. However, this misses the fundamentally different nature of the “rights”. Religious liberty exists in the personal sphere, and simply requires that the state does not intrude. The claim to non-discrimination is the opposite – it requires the state to step in and force disagreeing parties to comply. In all the above cases, the government assisted the complaining party in enforcing the right to “non-discrimination”. It is deeply illiberal.

In response to the Christian Youth Camps case in the Victorian Supreme Court, Daniel Hickman of the Melbourne Catholic Lawyers Association said the legal community “seem to see religious freedom as a subsidiary right and non-discrimination as a primary right.” From the evidence, it is hard to disagree.

It also destroys the concept of freedom of contract. A free market depends on the ability of buyers and sellers to freely and willingly choose who to do business with. Advertising your services is not an offer to which a respondent is entitled to receive. The case of Fisher v Bell [1961] held that goods displayed in window with a price affixed were merely an invitation to the customer to make an offer. This is the ideal approach, as the proprietor still retains the power to manage who he conducts business with.

Early legal principles strongly supported freedom of contract. In the 1875 case of Printing and Numerical Registering Co v Sampson, the Judge said;

It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice. Therefore, you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract.

Unfortunately, this attitude has been lost, with more and more legislation added to the books, undermining contracts. Even worse, this has come at the expense mostly of religious liberty.

Media regulation is back on the agenda

It’s been two years since the Gillard government’s dangerous attempt to restrict free speech and regulate the media. So it’s with some trepidation that we read media regulation is back on the political agenda.

Fortunately the proposal currently on the table is not to restrict Australia’s media but rather to allow it to meet the demands of 21st century media consumption. Two anachronistic media regulations currently restrain media ownership in Australia.

Darren Davidson sums up these two rules in an article in the Weekend Australian:

The reach rule prevents TV licence holders broadcasting to more than 75 per cent of the population.

If removed, metropolitan TV networks could undertake mergers with regional broadcasters. For example, Nine Network could combine with Bruce Gordon’s independent regional broadcaster WIN Corp, and Ten Network could do a deal with Southern Cross Austereo.

Under the “two out of three” rule, no entity is allowed to control more than two out of three platforms in any one market: newspapers, free-to-air TV and radio.

It’s these two rules that communications minister Malcolm Turnbull is reportedly seeking to abolish. This would be a significant reform for Australia’s media landscape. In a world where media is in a state of flux it makes sense to put in place the flexibility that will allow Australia’s media companies to adapt. The longevity of the two-out-of-three rule in particular is extraordinary given that it does not consider a landscape that includes online news services. The Internet has been around for decades, and doesn’t look like it’s going anywhere soon.

The 75% reach rule also makes little sense in such a diversified media landscape. It unnecessarily creates a distinction between the city and the country.

Adam Thierer has written an excellent piece highlighting the evolving media landscape in the context of similar proposals to relax media ownership laws in the United States.

The move to reform ownership laws in Australia is a welcome development in Australian media policy. We’ll be following this debate closely.

Trophy hunting a useful tool for conservation

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Nationals Senator Bridget McKenzie (Victoria) made a great speech in the Senate on 5 March, in defence of hunting and recreational shooters. It follows the “scandal” which has engulfed Glenn McGrath, since the release of several hunting pictures from 2008.

These are legal activities, they are celebrated, they are cultural practices and they have historic values. Over one million Australians are registered hunters, and that does not go to the sporting area. There are 46,000 game hunters within my own home state of Victoria.

In the social media campaign against Glenn McGrath, people were saying things like ‘don’t support his charity'; ‘friends, please stop donating'; ‘high-time celebs like Glenn McGrath realise that hunting evokes as much public revulsion as harpooning whales'; and ‘you are just a sick cowardly psychopath’. Lady Elise said, ‘He is an un-good person, a vilesome person’.

We need to start considering how this impacts on real people and their lives. It is a result of social do-gooders, animal rights activists and people who are of an elitist bent who think that how they envisage the world is how it should be. They are going to persecute those who participate in legal pastimes.

Opponents of hunting overlook the potential for trophy hunting to be a powerful tool for conservation itself.

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104 Conservatives cross the floor on mandatory plain packaging

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The Rt Hon Chris Grayling, Lord High Chancellor and Secretary of State for Justice in the UK government, was the most senior member of the Conservative party to vote against the plain packaging regulations

Disappointingly, the United Kingdom have  followed Australia’s lead in introducing mandatory plain packaging of tobacco products.

Amazingly, over a third of the Conservatives in the House of Commons voted against the new regulations in a free vote. They were joined by three Labour Party MP’s, two Liberal Democrats, both United Kingdom Independence Party MP’s and two Democratic Unionist Party MP’s.

Although the vote was ‘free’, the level of detraction from the Conservative leadership is quite extraordinary. Even cabinet ministers Chris Grayling, Elizabeth Truss and Esther McVey joined the Conservative backbenchers in voting against the proposals.

This is in stark contrast to the coalition in Australia, which did not oppose the then-Labor governments Tobacco Plain Packaging Act 2011.

As the UK laws were introduced through regulations, there was not a full parliamentary debate on the proposals. One wonders how many more might have voted no if a genuine debate had occurred.

Email: Property rights – the forgotten freedom

It is no secret that, increasingly, property rights are sidelined in Australia. Often, these rights are abrogated by local councils who apply finicky regulations, such as the elderly lady who faced a severe fine because her new fence was 15cm higher than regulations permitted. Other major barrier are laws which restrict landowners if development would have some bureaucratically defined environmental impact.

The right to property is a fundamental human right. All freedoms we enjoy have a basis in property rights. However, contemporary western governments consistently undermine these rights.

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We are very fortunate to have Lorraine Finlay, lecturer of law at Murdoch University in Perth, to contribute to this fundamental debate. Ms Finlay’s article on FreedomWatch today analyses the merits of recent state government efforts to strengthen private property rights in the Western Australian context:

Both the Land Acquisition Legislation Amendment (Compensation) Bill 2014 and the Private Property Rights Charter for Western Australia are worthwhile reforms. There is, however, still a long way to go. For example, while the Charter is a step in the right direction in recognising the importance of reform at the bureaucratic level, it is drafted in such equivocal language that it provides little by the way of real protection or certainty for property owners…

Read Ms Finlay’s whole article here.

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The MP who is there for free speech – always

New South Wales Liberal Democrat Senator David Leyonhjelm has a magnificent piece in today’s Australian Financial Review ($). He laments the failure of Australian politicians to consistently defend our most important civil liberty – freedom of speech.

Senator Leyonhjelm has opposed every encroachment on this fundamental human right during his time in the Senate, including the recent proposal to increase restrictions on speech through “stronger prohibitions on vilifying, intimidating or inciting hatred“, section 35P of the National Security Legislation Amendment Act, the establishment of a censorious Children’s e-Safety Commissioner, the proposal to track every Australian’s internet activities via the planned mandatory data retention regime, and has been disappointed to see the Abbott government reverse its election commitment to repeal section 18C of the Racial Discrimination Act 1975:

What all this means is that free speech is defended in some situations – when the speech is agreeable, linked to privacy, or relevant to a certain political constituency – but not others. It amounts to not supporting free speech at all. To make an old joke, selective support for freedom of speech is like being partly pregnant.

Shutting down speech by claiming you’re ‘offended’ or that something should not be said, or inhibiting speech by criminalising journalism, is an admission of failure to understand the whole concept of free speech. And if you don’t understand free speech, you don’t understand freedom.

Freedom of speech is the paramount freedom. Without it, we struggle to exercise our other freedoms. With it, we can fight for those freedoms. It may be offensive, insulting and make governments uncomfortable, but if this is the price to be paid for living in a society where all claims are open to question, then it is a price worth paying.

I compromise on certain issues on the grounds that some progress in the direction of liberty is better than none. But I believe all politicians in a liberal democracy should be uncompromising in defence of free speech. My fellow politicians should make their voices heard while they still can.

Read Senator Leyonhjelm’s important piece here ($).

Strengthening property rights in Western Australia

Although the Universal Declaration of Human Rights declares that human rights are ‘equal and inalienable’, some rights seem to be more equal than others.  Property rights, for example, seem to have been relegated to the very bottom of the list.  Indeed, the Human Rights Commissioner recently described property rights as one of ‘the forgotten freedoms’ that ‘… are being taken for granted and are consequently compromised’.

Given this, any moves to strengthen private property rights should be encouraged.  The WA Government has recently taken steps in this direction with the introduction of the Land Acquisition Legislation Amendment (Compensation) Bill 2014 and the adoption of the Private Property Rights Charter for Western Australia.  This is a positive step, but unfortunately a much smaller one than many had hoped for.

The draft Bill creates a just terms compensation guarantee when an interest in land is compulsorily acquired by the State and introduces a number of other reforms designed to ‘deliver a fairer and more transparent approach for the assessment and determination of compensation for landholders where private property is acquired by the State’.  The Charter is intended to guide public officials when they make decisions affecting property rights, and emphasizes a number of key principles including ‘fair compensation, transparency, timeliness and the use of compulsory acquisition as a last resort’.

Both the draft Bill and the Charter are worthwhile reforms.  There is, however, still a long way to go.  For example, while the Charter is a step in the right direction in recognizing the importance of reform at the bureaucratic level, it is drafted in such equivocal language that it provides little by the way of real protection or certainty for property owners.

A much bigger problem is that the draft Bill fails to extend the just compensation guarantee to cases where the government imposes significant restrictions on the use of property, but stops short of actually acquiring the property itself.  Many of the most egregious recent examples in which individuals have found their property rights significantly diminished in Western Australia are in cases where those rights have been restricted, rather than taken.

A key example is native vegetation regulations, with a complicated protection framework created under the Environmental Protection Act 1986 (WA), Environmental Protection (Clearing of Native Vegetation) Regulations and the Environmental Protection (Environmentally Sensitive Areas) Notice 2005.  The effect of the Notice is to declare a substantial range of areas to be Environmentally Sensitive Areas (‘ESAs’).  It is estimated that 4000 – 6000 landowners are impacted by an ESA designation and that ‘the area covered by ESAs goes from Gingin and along the coastal strip, all the way down to Esperance’.  It is not only areas of high conservation value that are affected, with extensive areas of land across Western Australia being classified as ESAs.

It is an offence to clear native vegetation without a permit, unless falling within a stated exemption – none of which apply to ESAs.  Illegal clearing is a criminal offence, and individual offenders may be fined up to $250,000.  The types of activities that may be considered illegal clearing include many routine farming activities, such as clearing re-growth or grazing cattle.

A farmer who finds their property declared as an ESA will effectively be unable to continue using that land for farming, at the risk of criminal conviction.  To continue farming they need to obtain a permit, but the permit process is a bureaucratic nightmare, being uncertain, complicated and entirely discretionary.  Before you can apply for a permit you also need to actually know that your property is an ESA.  In fact, landowners are not individually consulted or notified before their property is encumbered and the designation is not recorded on the Certificate of Title.  Instead, the Government has claimed that publishing the overarching Notice in the Government Gazette is sufficient!  The upshot is that many property owners are simply not aware that their property is affected, and may unknowingly be committing a criminal offence.

The unfair burden that this places on individual landowners is highlighted by the case of Peter Swift.  Mr Swift was prosecuted for illegally clearing 14 hectares of native vegetation on his property without a permit.  This was despite the clearing actually being done by a previous owner before Mr Swift purchased the property.  Although he was ultimately cleared in court, this has come after being forced to endure years of litigation, and at an enormous financial and personal cost.  What is more, he is still faced with the majority of his land being designated as an ESA which means that he can’t use the property for farming – the very reason that he purchased it in the first place!  The value of his property has been destroyed by the ESA restrictions, and yet he hasn’t received any compensation.  The sheer injustice of this situation is overwhelming.

The proposed property right reforms in Western Australia are welcome, but hopefully they are just a starting point with further reform in this area being sorely needed.