Vague ‘governance standards’ give massive power to bureaucrats

By on February 8, 2013 in Liberal democracy, Personal liberties, Rule of law

In recent weeks, FreedomWatch has commented extensively on the reversal of the presumption of innocence contained in the Gillard government’s Human Rights and Anti-Discrimination Bill. But as IPA Executive Director John Roskam wrote in his AFR column today, Australian governments have also been degrading this vital tenet of a free society across a range of policy areas by replacing the rule of law with the rule of bureaucrat:

A new and worrying trend is the way politicians are eroding the presumption of innocence by requiring individuals to prove they have fulfilled obligations of ‘due diligence’. An ever-growing number of laws require individuals to prove they are innocent of an offence by demonstrating they complied with whatever obligations would be appropriate for someone exercising ‘due diligence’… The requirements of ‘due diligence’ can be incredibly vague and almost impossible to comply with.

The establishment of the Australian Charities and Not-for-Profits Commission (ACNC) in the Australian Charities and Not-for-Profits Commission Act 2012 – which I wrote about in October last year, and was brought to our attention by an IPA supporter – is exactly the kind of thing John was talking about.

As of July 1, many charities in Australia will be regulated by the ACNC, replacing the Corporations Act. The new system will replace clearly defined regulation administered by ASIC and enforced by the courts, with vague ‘governance’ standards enforced by ACNC bureaucrats.

The ACNC draft governance standards are littered with items requiring charities to act ‘appropriately’, ‘reasonably’ or ‘responsibly’ and gives ACNC bureaucrats such extraordinarily wide discretionary powers that they can punish charities if they think an offence is ‘likely’ to occur.

For example, under ‘responsible management of financial affairs’:

Section 45.20 Standard 4 -

2) A registered entity must take reasonable steps to manage its financial affairs in a responsible manner.

Furthermore, Division 80.1 of the Act gives the ACNC Commissioner to take action if the Commissioner reasonably believes that the entity has not complied with a governance standard, or that it is more likely than not that the entity will not comply with a governance standard.

More alarming than the practical implications of the ACNC (that charities will have less time and money to serve those in need) are the dangerous ramifications it has for our liberal democracy.

As John writes:

These sorts of assumptions produce a legal and political regime that favours control over freedom. In such a regime the only freedoms citizens are allowed are those granted to them by government. This sort of regime bears no resemblance to a liberal democracy.

Three great articles on free speech

By on February 8, 2013 in Freedom of speech, Personal liberties

The Australian today has three important pieces on the Gillard government’s anti-discrimination laws and their implications for free speech.

The chief justice of the Family Court has slammed the government’s plan to undermine the presumption of innocence ($). Note many so-called human rights advocates have attempted to paper over or justify watering-down this fundamental legal principle:

Chief Justice Diana Bryant of the Family Court says the government’s rationale for reversing the onus of proof in federal discrimination law is “tenuous”.

Her criticism of the policy rationale, outlined in an extensive submission to the Senate inquiry into the government’s draft bill, is the latest in a series of rebuffs for the government’s plans from leading figures in the law.

Her submission, dated December 21, has come to light after similar concerns were expressed by the nation’s peak business group, the Business Council of Australia, and the Institute of Public Affairs.

…

“There are processes by which relevant evidence can be elicited without disturbing the principle that a person making allegations, of discrimination or otherwise, bears the burden of proving those to the requisite standard. This proposal represents a significant departure from the current approach of applying the full burden of proof to the complainant and I observe it is not consistent with the approach taken in state and territory anti-discrimination legislation,” Chief Justice Bryant writes.

Chris Merritt, The Australian‘s legal affairs editor, has an excellent piece ($) on the unintended consequences of the draft Bill, for example, preventing employers from discriminating against employees with racist views because those views could constitute a “political opinion” (which is protected under the draft legislation). The article also features Simon Breheny’s analysis of the proposed amendments to the Bill:

Continue Reading →

Eroding the presumption of innocence

By on February 8, 2013 in Personal liberties

In his Australian Financial Review column this week, IPA Executive Director John Roskam identifies how so much legislation passed in the 21st century undermines key rule of law principles:

A new and worrying trend is the way politicians are eroding the presumption of innocence by requiring individuals to prove they have fulfilled obligations of “due diligence”. An ever-growing number of laws require individuals to prove they are innocent of an offence by demonstrating that they complied with whatever obligations would be appropriate for someone exercising due diligence. Many of these due diligence requirements are aimed at company directors. The requirements of due diligence can be incredibly vague and almost impossible to comply with.

Vague laws give bureaucrats and judges enormous discretion to decide what is appropriate behaviour. For instance, section 27 of the Work Health and Safety Act 2011 specifies that fulfilling the requirement of due diligence under the legislation includes taking reasonable steps to have “up to date knowledge of work health and safety matters”. In this context “up to date” could mean nearly anything, and as a result company directors attempting to comply with the law have little or no guidance of what is required of them.

UPDATE: Peter Gregory elaborates above.

How popular is liberty?

By on February 7, 2013 in Freedom of speech, Nanny State, Personal liberties, Technology and online rights

The latest Essential Report has some interesting details about Australian’s support for Nanny State regulations and censorship. Here’s a sample of their findings:

Q. Do you approve or disapprove of Governments making laws to regulate the following?

Total approve
Wearing seatbelts in cars

97%
Wearing bike helmets

92%
Personal use of recreational drugs

64%
Smoking in public places

72%
Buying and consuming alcohol

73%
Shopping hours

56%
Cigarette packaging

67%
Junk food advertising

71%
Gambling, poker machines

73%
Films (i.e. censorship)

61%
The internet

53%
Making public statements which other people might find offensive

41%

Click through to see some important nuance – the poll also shows how strongly Australians feel about these issues, and how many people actively oppose such regulations.

Essential also asked a very interesting further question: why should these things be regulated?

The answers are worth considering carefully.

The priorities of the AHRC

By on February 7, 2013 in Freedom of speech, Liberal democracy, Personal liberties, Property rights

The number of times a term is mentioned on an organisation’s website can be a crude measure of their priorities. But when the gap is so large, it’s hard to ignore.

The Australian Human Rights Commission is a 100% taxpayer-funded organisation. One of its tasks is to advocate on behalf of Australians’ human rights.

But as Simon Breheny argued in The Australian recently, the AHRC really only advocates for the human rights they like – such as the right to not be discriminated against – over human rights they are less enthusiastic about, like freedom of speech and property rights.

Well, now we can quantify that gap:

  • Number of times “discrimination” is mentioned on the AHRC website: 12,200
  • Number of times “freedom of speech is mentioned: 423 (“free speech” is mentioned 226 times)
  • Number of times “property rights” is mentioned: 370
  • Number of times “right to silence” is mentioned: 41
  • Number of times “presumption of innocence” is mentioned: 80

The AHRC is not a human rights agency at all. At best it is an anti-discrimination agency dressed up in the rhetoric of human rights. At worst it is a taxpayer-funded left-wing lobby group. The AHRC only selectively defends the rights they like. It should be abolished.

UPDATE: Yet more evidence of the AHRC’s warped priorities, as we pointed out in our Hey email today.

According to the Human Rights Commission, these are the four biggest human rights issues in the 2013 federal election. No mention of freedom of speech, or laws which remove the right to silence or undermine the presumption of innocence.

And under the section of their website entitled “freedom” these are the posts that appear, along with a very strange definition of freedom.

The money-go-round

By on February 7, 2013 in Liberal democracy

I have an op-ed today in the Australian Financial Review on the bureaucracy’s decision to keep details of how the government doles money to multinational car companies secret. The decision comes off the back of Freedom of Information requests from the AFR. I argue:

Every taxpayer dollar that enlarges the revenue and profits of a corporate welfare recipient needs to be justified. And with Holden collecting subsidies valued at $89.7 million last financial year, a figure that perfectly mirrors its profit, there are serious questions to be asked about subsidy levels.

While the local car industry has done a very good job of extracting unearned profits from the hip pockets of taxpayers, it is important to understand the principle is not just about the car industry:

The same principle applies to all industries that enjoy government support. As the Productivity Commission’s 2011-12 Trade and Assistance Review outlines, total government assistance to industry is estimated at $17.7 billion. The beneficiaries ranged from renewable energy to food manufacturing.

But there is something special about the changing nature of subsidies to the car industry:

Throughout the Rudd and Gillard governments, the objective of these subsidies has changed from assistance to wean companies off tariffs to “co-investment” … Co-investment is about achieving a public interest through private companies, in effect making taxpayers pseudo-shareholders in these companies and their future.

And there is an even more important question that goes to the integrity of political decision making:

The same car companies that receive subsidies with public money are concurrently striking very generous deals with ALP-affiliated unions for their members.

When taxpayer’s money is shoveled into car companies at one end by the government and the car companies then shovel it out the other end under generous agreements with affiliated unions to the party that governs the country, there are serious questions to answer. The AFR should be commended for doggedly pursuing the doling out of corporate welfare to a declining industry that holds the Australian taxpayer in contempt.

Great news: Coalition will oppose anti-discrimination laws – outright

By on February 6, 2013 in Freedom of speech

The Australian this morning reports ($) some very welcome news. The federal Coalition has officially declared that it will oppose Roxon’s anti-discrimination laws, even if the government amends it to remove the “insult” and “offend” provisions:

The Coalition joint partyroom has unanimously agreed to oppose the draft laws — even after the government proposed to dump aspects of the bill that make it unlawful to offend someone.

The Attorney-General’s Department presented four options to the Senate committee investigating the exposure draft this week. These addressed concerns that it would expand the reach of the the Racial Discrimination Act on speech that offends, insults and intimidates.

But opposition spokesman for legal affairs George Brandis said the changes did not go far enough, as they did not address the shift in the burden of proof or the expansion of the “protected attributes” to include political opinion and “social origin”.

“We are going to oppose it outright,” senator George Brandis told The Australian last night.

“We don’t consider the proposed changes go nearly far enough. And we have also considered the strong reaction in the community.

“The only adequate response from the opposition would be to oppose rather than amend the bill.”

It is understood that in the joint partyroom meeting, Tony Abbott spoke on the subject.

The Opposition Leader said it was important that the Australian community knew Coalition members were the “custodians of freedom of speech” compared with the Gillard government.

Car subsidy secrecy

By on February 6, 2013 in Liberal democracy

992609-prime-minister-julia-gillard

This is utterly scandalous. The Department of Innovation has refused to tell the Australian Financial Review how much taxpayer support has been given to the car makers Toyota, Ford, and General Motors over the last decade.

Struggling to sell cars and cutting staff, Holden last year was promised an extra $275 million, while Ford was given at least $35 million in handouts. Over 10 years each company could have received $1 billion.

The reason that the department refused the AFR’s freedom of information request is one for the records. The information would not “contribute in any meaningful way to informing debate on a matter of public importance.” Well, I think taxpayers could be the final judge of that. Nevertheless, the refusal to explain how our money is being spent is, itself, perhaps far more revealing.

The IPA has been a long opponent of taxpayer subsidies for the car industry. Here’s a few samples. In the Sydney Morning Herald, Tim Wilson wrote that car subsidies are like a “reverse Robin Hood” – robbing from the poor to give to the rich. In the Drum I argued that car subsidies are an “irrational, wasteful, pointless, politicised corporate welfare program“.

UPDATE: Finance Minister Penny Wong says the decision to not release the information about taxpayer funds was made by the department, not politicians. Hard to see why that is supposed to be comforting. So public servants get to decide what information would “contribute in any meaningful way to informing debate”?