Right to free speech should include freedom to preach

By on February 28, 2013 in Freedom of speech

Yesterday, I briefly outlined two decisions handed down by the High Court, which both had implications for freedom of expression. Today, I’ve written further analysis of one of those cases: Attorney-General (SA) v Adelaide City Corporation.

The case involved Caleb and Samuel Corneloup, who often preached in Adelaide’s Rundle Mall without the permission of the Adelaide City Council. The Corneloups were accused of breaching a city by-law and were fined by the council. The relevant provisions of the by-law read:

Activities Requiring Permission

No person shall without permission on any road:

…

2.3 Preaching and Canvassing

preach, canvass, harangue, tout for business or conduct any survey or opinion poll…

2.8 Distribute

give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter…

A lower court found the law to be invalid for breaching an implied right to freedom of political communication and the council appealed to the High Court. The High Court overruled the original decision and held that the law was constitutionally valid. The Corneloups are therefore liable to pay the fine.

It’s worth nothing that there are a multitude of laws that regulate what might broadly be labelled unpleasant conduct. Politicians continually forget that there were laws that existed before they got into office. The result is often layer upon layer of new laws that cover remarkably similar conduct. These include violent threats, stalking and a range of other offences relating to intimidation.

However, it’s very unlikely that the Corneloups could have been found to have breached any of these laws. Even nuisance, which sets quite a low threshold for unacceptable conduct would not have caught the Corneloups’ conduct. As Heydon J stated:

Merely to preach, canvass or harangue on a road is not to commit a public nuisance. Nor is merely distributing printed material to bystanders or passers-by on a road.

In other words, the law in this case sets an extraordinarily low bar. The fact that it caught people merely advocating a religious message in a public place is in itself evidence of that. And just as this conduct would not be enough to be considered a common law nuisance, nor should conduct of this kind ever be made unlawful if we are serious about protecting free speech.

Gagging someone just because they’re annoying is surely not the sign of a society that values freedom of expression.

You can also read my colleague, Chris Berg’s, further analysis of the other case handed down by the High Court yesterday – the Man Monis case – here.

Politics by other means

By on February 28, 2013 in Freedom of speech

Another example, should one be needed, of the use of government regulation to further political arguments: Greens Senator Sarah Hanson-Young plans to make formal complaints to the Australian Communications and Media Authority about “shock jocks” for comments about asylum seekers.

This is sadly typical. Broadcasting regulation has been used as a political tool since the government first discovered it could decide who used the airwaves, as I have outlined in the past. For more recent examples, see here, and here.

Freedom of speech and the Man Monis case

By on February 28, 2013 in Freedom of speech

Of the two freedom of speech High Court cases that were ruled yesterday, it seems to me the Sheikh Man Haron Monis case is the most significant.

His actions are pretty hard to defend, obviously – sending abusive letters to grieving families is calculatedly cruel. Many people have rightly compared him to the internationally infamous Westboro Baptist Church.

The High Court came to a three-three head as to whether Section 471.12 of the Criminal Code is an unconstitutional limitation on our freedom of political communication, a freedom that the High Court decided was implied within the constitution back in the 1990s. As the case was a tie, Man Monis’ appeal was dismissed, and he can be prosecuted.

Should have they? The implied right to political communication is an unstable beast. Nobody knows where the line should be. Justice Heydon is utterly scathing in the Monis judgment: Continue Reading →

Gillard Government seizure of inactive bank accounts is an attack on property rights

By on February 28, 2013 in Media release, Property rights

“The Gillard government’s plan to take money from dormant bank accounts is a shameful grab for cash and a significant attack on property rights,” said Simon Breheny, director of the Legal Rights Project at free market think tank the Institute of Public Affairs.

The Treasury Legislation Amendment (Unclaimed Money and Other Measures) Act 2012 amends the Banking Act 1959 to lower the threshold for “unclaimed moneys”, which are transferred from banks that hold the accounts to the Australian Securities and Investments Commission. Previously this was defined as any money in bank accounts that had been inactive for a period of seven years, but the new laws require inactivity for only three years.

“People should be able to leave money in bank accounts for as long as they wish without the fear that the government might come along and steal it from them. To do so is an arbitrary acquisition of property by the government,” said Mr Breheny.

“Parents saving for their children’s education, young people saving for a home and others putting money aside for retirement are all at risk of losing their savings as a result of these changes,” said Mr Breheny.

“The changes could have a number of unintended consequences. Such a regime provides a disincentive to saving money with a bank and may encourage people to hide their money under the mattress and away from the hands of government,” said Mr Breheny.

“The government is desperately attempting to shore up its financial position before the budget is handed down in May 2013,” said Mr Breheny.

“Tony Abbott and the Coalition must commit to repealing these changes if elected to government,” said Mr Breheny.

For media and comment: Simon Breheny Director, Legal Rights Project, 0400 967 382

It’s sick to tax the food of the poor to subsidise the choices of the rich

By on February 28, 2013 in Nanny State

cupcakesFairfax press has a story today that research is being commissioned by health activists to introduce a fat tax into Australia.

As my colleagues Alan Moran and Julie Novak have outlined in their studies on Soaking the Poor and Nanny state taxes: Soaking the poor in 2012  the cost of sin taxes disproportionately hits working Australians. Ordinarily these are the taxes that self-styled progressives hate. But what sin taxes show is that a commitment to progressive taxation is only skin deep until they find a cause they like or because they don’t think they know how to live their lives best.

According to the article:

A fat tax may be imposed on sugary drinks and junk foods if a panel of nutritionists, doctors and health economists has its way.

It’s still early days, but a process started at a Brisbane hotel on Wednesday could lead to in a new way to discourage foods that cause childhood obesity.

The biggest problems are sugar-sweetened beverages, processed meats, snack foods and some of the lower-quality formula-type products marketed for infants and toddlers, says the convener of the panel, Dr Tracy Comans.

Cooked food eaten away from the home is also a major concern.

Tax is one weapon. Another is subsidies, Dr Comans says.

These one-size-fits-all solutions always seem like a good idea in theory, but ultimately struggle in practice:

The first task of her group – the early childhood expert panel on nutrition and obesity prevention – was the “complex question” of defining junk food.

“First of all we wanted to identify the main culprits and then if it is feasible to tax them,” she said on Wednesday.

“The two areas where everyone felt it would be reasonable and practical to tax were sugary drinks and food away from home.”

Other methods were needed for snacks, as the panel decided it was too difficult to define “what is a good snack, what is a bad snack and what’s in-between”.

As I argue in today’s Courier Mail the idea of a fat tax is plain stupid. We already have one and it doesn’t work. The only way it will is if we tax people out of their choices:

Australia already has an effective fat tax. It is called the GST, under which processed foods have a 10 per cent tax added to their price, while fresh food does not.

Yet despite this tax operating for more than 11 years, it has done little to improve our health.

The Panel has a solution for that:

The panel felt subsidising healthy food would be a good option.

But such a proposal is crazy. Government simply cannot afford to subsidise healthier food, and certainly not to the point of making it significantly cheaper. And if they did it would be a double whammy. Data shows that it is people from lower socio-economic backgrounds that eat unhealthier food, not rich people. Subsidising healthy food would literally mean taxing the poor so the rich can eat cheaper. That isn’t a bizarre idea – it is sick – and it should be called out for being so.

 

Conroy wants to shut down individual TV shows

By on February 28, 2013 in Freedom of speech

If there was any more evidence needed about the political self-interest that dominates the Gillard government’s planned media regulation, this is it ($):

CABINET ministers have canvassed a startling intervention in news and current affairs to prevent television networks from striking partnerships with other media companies in a sign of last-minute changes to reforms due within weeks.

Communications Minister Stephen Conroy is understood to have put the proposals to Julia Gillard on Monday night in an attempt to stop the Ten Network from working with News Limited to produce a Sunday current affairs program.

As Wayne Swan joined the discussion, Senator Conroy suggested expanding his reform package to ban free-to-air TV networks from outsourcing news and current affairs to other media companies.

…

Labor’s frustration with News is well known after cabinet ministers talked about “going to war” with the company in August 2011 because of their anger at reports critical of the government.

Sources told The Australian yesterday that Senator Conroy used the talks on Monday night to suggest measures to prevent any commercial free-to-air TV network from outsourcing news and current affairs to another media entity.

The minister argued that a specific provision was needed because other changes, such as his proposed “public interest test” on ownership transactions, could not address editorial decisions.

On his blog, Andrew Bolt hints this is not the first time his show has been in the sights of the communications minister.

UPDATE: Tim Andrews adds his thoughts over at Free Speech Australia.

Graphic warning labels on food called out in the Courier-Mail

By on February 28, 2013 in Nanny State

445340-fast-food-thinkstock

I have an opinion piece in the Courier Mail today responding to yesterday’s advocacy for graphic health warnings:

Graphic warning labels assume we buy all our unhealthy food in ready-to-eat form. That isn’t the case. Home-cooked meals filled with sugar, salt, oil and fat can be as unhealthy as food in a takeaway bag.

It’s all pretty obvious, unless the sole objective is to attack industry and not obesity. But it isn’t just food cooked at home:

Under the plan, a discerning restaurant customer can order a 250g piece of wagyu beef with up to 25 per cent fat marbled through it, a bowl of pomme frittes and a tall glass of surprisingly sugary French champagne.

Their meal will come with an expensive price tag and even a chef’s recommendation.

Meanwhile an average Queenslander can go to a fast food store and order a 120g beef pattie burger with a fat content of about 10 per cent, a side of fries and a Coke and get a label designed to shock them out of their choice.

These lazy proposals are the sort that get health activists easy headlines, but don’t do anything to trim our waistlines. I’ve previously criticised the same policy against alcohol here.

You cannot make this stuff up: Councils want to ban bird feeding

By on February 28, 2013 in Nanny State

723416-cockatoos

Petty bureaucrats and the over-inflated egos of local Councillors come up with some pretty stupid ideas, but this one takes the cake. You literally couldn’t make it up: According to a report in news.com.au a Melbourne Council wants to ban people feeding birds:

Yarra Ranges Council wants to ban the feeding of cockatoos in parts of the shire in a bid to stop them damaging homes and property.

The council wants to use the General Provisions Local Law 2012 to stop people feeding or leaving food out for sulphur-crested cockatoos.

The new law would mean residents could be fined for feeding the birds in their backyards.

Councils are now actively seeking to get rid of birds that existed before we settled the land? Seriously?

According to one of the Councillors:

we are certainly not going to have “cocky patrol” but it gives us a legal framework to deal with genuine cases where people continue to feed cockatoos.

Another is reported to have said:

the feeding of cockatoos was a “damn curse” and that homes in Upwey had been destroyed by the birds.

And another:

said bird feeding at Grants Picnic Ground should be banned as well.

There does seem to be at least one Councillor with sense:

Chirnside Ward councillor Andy Wilcox was the only councillor to vote against the move, stating he had spoken to people who “didn’t think it was much of a problem” and that he was not convinced a ban would help.

The whole idea is clearly barmy. Councillors in Yarra Ranges appear to be collectively seeking to win this year’s Darwin Award after a near-victory by the City of Casey a couple of years ago.