Simon Breheny

Legal rights persistently undermined by parliament

The IPA’s latest report, the Legal Rights Audit 2016, was today featured in the legal affairs section of The Australian ($):

An audit of federal legislation has found that the erosion of fundamental rights by the nation’s politicians shows no sign of ending despite the expenditure of millions of dollars on publicly funded human rights agencies.

… “The extent to which legal rights are being eroded poses a significant threat to the rule of law in Australia,” the audit says.

… The growing erosion of legal rights is outlined in a report that calls for the repeal of all breaches of fundamental rights and urges politicians to show greater respect for the rule of law by refusing to pass bills that breach fundamental rights.”The research we have conducted shows the critical state of fundamental legal rights in Australia,” said Simon Breheny, the IPA’s director of policy who co-authored the report with Morgan Begg.

“It is of deep concern that the problem Australia faces when it comes to fundamental rights is getting worse and it does not seem as though there is any end in sight.”

… The report says fundamental legal rights are necessary to achieve justice within the legal system and act as a vital constraint on the coercive power of the state.On the burden of proof, it says difficulties experienced by prosecutors in proving the elements of an offence or civil remedy are an insufficient justification for reversing this right.

Mr Breheny said it was disappointing that nothing practical had been done to reverse the erosion of rights — despite an inquiry by the Australian Law Reform Commission and statements by Attorney-General George Brandis.

“It is deeply concerning that we have the apparatus of the state — in the form of the Australian Human Rights Commission — actually championing legal rights abuses rather than recommending changes to the law that would protect our fundamental freedoms,” he said.

“The best example of this is that the Human Rights Commission is basically set up to enforce anti-discrimination law rather than defending our fundamental freedoms.”

This could be seen from the fact that the Human Rights Commission strongly supports “speech-restricting provisions” such as section 18C of the Racial Discrimination Act. That provision makes it unlawful to offend, insult, humiliate or intimidate people because of their race, colour or national origin.

Mr Breheny noted that the Human Rights Commission also favoured a proposal from the previous federal Labor government that would have reversed the burden of proof in human rights and anti-discrimination law.

“That is just unforgivable, particularly when the problem, as our research has shown, is as significant as it is,” he said.

You can see the charts from the article here, and read the whole article here ($).

facebooktwitter

The IPA’s opening statement to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C

The following remarks were given by the IPA’s Simon Breheny to the Parliamentary Joint Committee on Human Rights’ hearing into section 18C in Melbourne yesterday. The opening statement was followed by questioning directed to Simon and the IPA’s Dr Chris Berg. Readers can watch the video at this link.


Freedom of speech is a basic Australian value.

A survey commissioned by the Institute of Public Affairs, published today, finds that ninety-five per cent of Australians say freedom of speech is important. Fifty seven per cent say it is very important.

Australia’s commitment to freedom of speech makes this country one of the most diverse, prosperous and socially welcoming on the face of the planet.

Laws that undermine free speech put at risk our success story as a socially inclusive nation.

Section 18C of the Racial Discrimination Act is one of the most significant restrictions on freedom of speech in this country.

Along with the rest of the provisions in Part IIA of the Racial Discrimination Act, Section 18C ought to be repealed outright.

It is an excessive, unnecessary and counterproductive restriction on Australians’ liberties.

Alternative proposals for reform would not solve the problems with the legislation that have been identified by recent court cases involving section 18C.

Simply removing some of the words from the section or, worse, replacing them with new words, would be, in our analysis, either ineffective, or redundant, or create even more uncertainty about the scope of the law.

Some participants in this debate argue that freedom of speech is protected by section 18D. But section 18D is a weak and unstable foundation for such an important right.

Section 18D has been applied in just three out of more than 70 cases that have been decided by the courts since Part IIA was first inserted into the Racial Discrimination Act in 1995.

Nor should parliament imagine that section 18D provides any certainty about the law. In the QUT case Judge Jarrett noted a “conflict in the authorities about the way in which s.18D might operate.”

More fundamentally, section 18D places a burden on the respondent to prove why he or she should have the right to speak freely. This is not a requirement that a free country like Australia should be proud of.

Offence is not a moral trump card. Australia is driven by other values – including individual freedom and democracy. Section 18C harms these values.

We urge this committee to recommit to the liberal democratic values that make this country great, and to recommend the full repeal of Part IIA of the Racial Discrimination Act.

Thank you.

facebooktwitter

IPA report: Superannuation cuts “will leave people poorer”

Australian_masthead_resized

Coverage of the IPA’s recently released report, “Strangling the goose with the golden egg” by Rebecca Weisser and Henry Ergas appeared in The Australian today. The report outlines that the purpose of a retirement income system should be to enable people to maintain their living standards after leaving the workforce, but that middle-income Australians are poorly served by this system. From The Australian:

Both major parties are condemning middle-income Australians to a dependency on the Aged Pension by targeting superannuation for budget repair, a report from the Institute of Public Affairs says.

As the government prepares to tweak its election commitment to rein in superannuation concessions, the free-market think tank says the government’s “desper­ation” for new revenue sources, as outlined in its $6 billion superannuation tax package, will undermine future retirement incomes.

The release of the report comes as Scott Morrison seeks to reach a consensus with Coalition backbenchers on the shape of the government’s super reforms, with MPs arguing for the Treasurer to lift the cap on non-concessional contributions from the proposed $500,000 to $1 million.

… Institute director of policy Simon Breheny said instead of targeting retirement income to fund spending commitments, the government should cut superannuation taxes of middle Australians to encourage savings.

Mr Breheny said middle-­income earners could expect to have a retirement income equal to 58 per cent of their pre-retirement earnings, compared with nearly 90 per cent for low-income earners.

“The poor have the pension, the rich have alternative investments and the middle class will miss out again. The objective of the superannuation system should be for people to maintain their living standards in retirement, not imply that they should be grateful to be tied to the Age Pension,” Mr ­Breheny said.

… “Unfortunately, proposed changes to superannuation from both the government and the ­opposition worsen, rather than fix the system’s myriad weaknesses,” the report says. “Superannuation reforms should be judged by the effect that they have on helping each individual to accumulate sufficient funds to maintain their living standards in retirement.”The report also concludes that the government’s proposal to introduce a cap on non-concessional contributions and lower the concessional contribution cap will “make a bad situation worse”.

“What is clear is that governments should not tax retirement savings at rates that make it difficult or impossible for savers to ­secure reasonable living standards in retirement based on the living standards they achieved during their working life. Nor should government taxes on retirement savings distort consumption decis­ions, undermining the quality of life in old age and ­reducing overall economic ­efficiency.”

Read the article here ($). Read the IPA’s report, “Strangling the goose with the golden egg” here.

facebooktwitter

Metadata mission creep? Who would have thought?

Victoria_Police

The latest proposal from Victoria Police to monitor mobile phone use highlights the danger of mission creep under mandatory metadata retention laws:

The so-called textalysers… are able to analyse metadata to determine whether someone was using their mobile phone at a specific time – while driving, for example.

… The model proposed by New York authorities involves the analysis of a mobile device’s metadata after a road incident to determine whether the device had been used in the lead up to the event.
… Privacy laws are slowing progress of the proposed new legislation, although Israeli company Cellebrite, which produces the technology, claims that the textalyser system doesn’t have the ability to read the content of text messages and social media updates, but rather to determine whether the device was used at a certain time to send text messages.

However, Australia’s new metadata retention laws, which allow for the time and basic surface details of every message sent to be stored and made available to law enforcement agencies, could speed the technology’s introduction here.

While the government justified the introduction of metadata laws largely to fight terrorism, the inherent danger with gathering mountains of personal data (beyond privacy and data security issues) is that once it exists other entities will inevitably demand access (see that list here).

In fact, the IPA’s Simon Breheny predicted this as early as 2012, and the IPA’s Chris Berg warned about the likelihood of the compulsorily acquired metadata being used for purposes other than national security at the time of its introduction in 2014:

A lot of opponents of data retention have pointed out that this creates a very real risk of unauthorised access. It’s hard to keep data secure.

Yet just as concerning is authorised access. Once these databases have been created they will be one subpoena away from access in any and every private lawsuit.

facebooktwitter

Submission: National Integrity Commission

Submission_cover_NIC

Last week, Simon Breheny and myself sent this submission to the Senate’s select committee relating to the establishment of a ‘National Integrity Commission’.

Drawing on the historical experience with state level anti-corruption agencies, we argue that a “federal ICAC” would lack accountability, invite abuses of power and wield coercive powers which violate the legal rights of individuals.

Such a body would have characteristics that are inconsistent with democratic principles and the rule of law.

Read our submission here.

facebooktwitter

Lockout laws punish many for the sins of a few

Australian_masthead_resizedMy colleague Simon Breheny on New South Wales’ controversial lockout laws:

“They are a giant hammer that has been used to smash not only those who have done the wrong thing but also a whole range of other patrons who do the right thing and a whole range of businesses,” Breheny says.

“There was a far more targeted response that would have achieved better outcomes than broad, general-application laws . It has had a devastating impact on (the city’s) night-life and culture, and that is a very sad thing.” Breheny, who is also director of the Institute of Public Affairs’ Legal Rights Project, wants to see the laws replaced by more targeted measures and a greater police presence.

He says the crackdown in Kings Cross and the CBD has simply propelled revellers into suburbs such as Newtown, Pyrmont and Double Bay, which are not as well equipped for crowds.

Read the full report here ($)

facebooktwitter

Racial discrimination laws now used to punish anti-racist sentiment

Australian_masthead_resized

As reported yesterday, QUT academic Cindy Prior is seeking nearly $250,000 as part of a section 18C complaint against students and other staff at the university. My colleague Simon Breheny was published in The Australian today, on what this all means:

The case is a sad indictment on the state of free and open debate in Australia. In my opinion, the comments in question would offend only a hypersensitive individual, and none of them are directed at Prior’s particular “race, colour, or national or ethnic origin” – the basis of offence required by the Racial Discrimination Act. Prior isn’t named, and the comments don’t seem to exhibit any form of bigotry or racial intolerance.

So ridiculous is the application of Australian racial vilification laws that they can now be used to punish anti-racist sentiment. The comments above are an endorsement of the idea that students at the university should all be treated equally – no matter their race.

But 18C is now used as a gag to any debate about race and ethnicity.

Continue reading here.

facebooktwitter

The Victorian government’s war on Christmas

children-singing-christmas-carols

Today I have a piece in The Australian on the Victorian government’s dangerous Christmas carol ban:

This is a cultural turning point. The Victorian government isn’t just banning Christmas carols; this is an attempt to strip away the meaning of Christmas. It’s an overt attack on one of the most significant events in the Christian calendar.

The decision goes to the heart of good education. Christmas, and all the ceremony and custom associated with it, has been a significant religious and cultural ritual for 1700 years. A ban on these traditions is a denial of our history. Suppressing aspects of the Christmas celebration denies a cultural heritage that has formed the basis of Western civilisation and that underpins our understanding of life and liberty.

A well-rounded education should include lessons on Christianity and its contribution to who we are today. We can’t expect the next generation to defend the values of Western civilisation if they don’t know what they are.

facebooktwitter

The competition regulator’s hobby horse

rod_sims-ACCC

Rod Sims, ACCC chairman, outlining the ACCC’s priorities for 2016 ($):

What we are trying to do is to get higher penalties awarded from the courts in competition cases because our concern is the penalties just aren’t high enough to grab the attention of company boards.

Sims, outlining the ACCC’s priorities for 2015:

The difference between a $10 million fine and a $100 million fine is quite profound. People will sit up and take notice, because it starts to show up in the profit and loss statement and it will grab attention, which is what we are trying to do with our deterrence messages.

It seems nothing has changed in the past year. The ACCC’s attempts to increase penalties which ‘grab attention’ are misguided.

Grabbing attention is what children do to their parents in toy stores. It is certainly not an appropriate enforcement objective for a regulator to pursue.

facebooktwitter

Powered by WordPress. Designed by Woo Themes