The redundancy of new anti-terrorism laws

Incitement to violence is against the law.  It's always been against the law.

Every Australian state penalises incitement.  The Commonwealth makes it unlawful to incite the commissioning of any criminal offence, not just violence.

This legal framework has developed over centuries.  The prohibition on incitement has ancient common law roots.  It is robust.  It is coherent.  It is a long-established and very well-founded limit on free speech.

So here's a question:  with the rich and robust law against incitement, why is the Abbott Government introducing the new offence of "advocating terrorism"?

Last week the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 was introduced into Parliament.  Like the first national security bill that preceded it, it is dense and complex — a mix of sensible change mixed in with redundancy and extraordinary overreach.

I argued in The Drum a few weeks ago that the foreign fighter threat is both genuine and pressing.  We've seen over the last fortnight how events in distant Iraq have materially changed the security environment in Australia.  Many proposed legislative changes — particularly to foreign evidence laws and passport confiscation powers — make sense.

But the new bill goes much further than that.

The bill makes it illegal to visit some parts of the world without proving to a court that you visited for family or humanitarian reasons.  It extends the control order regime and expands detention powers held by customs.

And it makes it illegal to advocate — counsel, promote, encourage, or urge — the doing of a terrorist act or the commission of a terrorist offense.  (The section in the new bill is 80.2C.)

On its face this is extraordinary.  The word terrorism is a term of art.  A lot of people call Israel a terrorist state.  Others respond that Palestine is terroristic.

More concretely, the Commonwealth Criminal Code defines a terrorist act as any action that a) causes or threatens harm to life, property, risk to health, or disruption of electronic infrastructure;  b) is motivated by a political, religious or ideological cause;  and c) is intended to intimidate the government or the public in general.  (See section 100.1 of the Commonwealth Criminal Code here.)

The definition is broad because it has to be.  What we describe as "terrorism" is really a collection of offenses.  Every part of a terror plot is potentially prosecutable under laws that have been around for centuries.  These include the most obvious — murder and attempted murder — down to things like conspiracy and weapons possession.

Indeed, as Bret Walker, the former Independent National Security Legislation Monitor, told the Australian Human Rights Commission's free speech conference in August:  "One of the best arguments against the counter-terrorist laws is that we didn't need any of them, because we've long criminalised murder, conspiracy to murder, and incitement to murder."

There are, certainly, some conceptual distinctions between traditional crime and terrorism.  The latter is primarily intended to create fear.  And governments hope to prevent terrorist acts rather than just punish them after the fact.  Those differences perhaps justify some distinct anti-terror legislation.

But since September 11 governments have seemed intent on severing the concept of terrorism from its constituent parts — cleaving it off into a distinct body of law.  This has created, as Bret Walker pointed out, massive redundancy, complication and confusion.  The real winners from this decade of security hyper-legislation are lawyers.

Just how much redundancy has been piled into our anti-terror laws?

Well, in 2005 the Howard government passed sedition law reform that, in the words of the then-attorney general, Philip Ruddock, was intended to prohibit "any conduct or advocacy that is likely to encourage somebody to carry out a terrorist act".  Sound familiar?

It's striking how little justification the Government has offered for the new advocating terrorism offense — let alone an account of why existing incitement or the 2005 sedition laws are inadequate.

But it appears the advocating terrorism offence isn't just one of the dozens of new crimes and security powers in the Government's voluminous anti-terror bills.

No, it seems to be the key to whole thing.  It has deep political significance.

Think back to August, when the Government announced its turn towards national security.  That announcement was made at a press conference where Tony Abbott also said he was abandoning the promise to repeal section 18C of the Racial Discrimination Act.  We were told this was a matter of clearing the decks so everybody could get behind Team Australia.

Yet last week Fairfax reported Abbott shelved free speech reform so section 18C could be used against Islamic hate preachers.

This makes the August press conference even more disingenuous than it appeared at the time.

It seems the Government believes advocating terrorism and offending, insulting, humiliating or intimidating on the basis of race or ethnic origin are two sides of the same coin.

The promised reforms to section 18C weren't a "complication".  They were directly contrary to the Government's desire to suppress speech that would otherwise be free.

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Cultural nationalism feels good but Australian stories have a cost

The warmest, most welcoming home of cultural nationalism is appeal to the provenance of "our stories".  Real Australian stories are made by Australians, for Australians, using only Australians, and only in Australia.  Trade Unions love this type of cover, and the Media, Entertainment and Arts Alliance (MEAA) has been bumptiously running this line recently to hold firm on restrictions on hiring foreign actors.

While it seems even the MEAA's members don't buy this nonsense any more, the Vegemite-stained sentiments animating the cultural nationalist instinct remain a popular but potentially very costly delusion.

Economists have made considerable progress in persuading voters and politicians of the fundamental truth of the principles of specialisation and the gains from trade — or its inverse, the enormous costs of seeking industrial self-sufficiency and isolation.  We specialise in producing what we're comparatively good at — a wide but also very specific range of goods and services — and we trade for the rest.  Australia is a wealthy and prosperous nation because it specialises and trades, not in spite of it.

This is no less true of arts and cultural production.  And we risk doing a great harm to the production of Australian stories if we allow this fallacy of provenance to run unchecked.  But to understand why, we need to dip into some economic reasoning.

On the face of it, it could seem plausible that a comparative advantage to the production of Australian stories would lie with real-born Australians using Australian technologies in Australian production companies.  But if that were the case, we wouldn't then require laws prohibiting such trades, or requiring various union permissions:  there would simply be no demand for such inferior inputs.

That this is an issue signals that someone wants foreign actors, writers, producers or directors involved.  So the question is why.  Is it because they come at lower price, or because they offer higher quality?  If lower price, then the higher-priced Australian actors are an additional cost.  Australian stories will cost more than they would in a free market, which means we'll produce fewer of them.

Australians as consumers of Australian stories are harmed by that restriction — although some Australian actors will benefit.  So that's perhaps just a transfer from the many to a few.

But if it's higher quality — which is the more likely account, and note that quality may not mean acting chops but may be composed only of better global name recognition — then the Australian story-telling industry is actively engaged in self-harm if it does not choose these higher quality inputs.

A further harm the pursuit of cultural autarky (self-sufficiency) causes under cover of Australian stories is a long-run distortion of the Australian cultural production sector itself in relation to the global economy of arts and cultural production.

The goal of cultural autarky is to have a complete arts and cultural production economy within Australia with every stage of production represented locally.  That sounds like a good plan — who wouldn't want that? — so it's easy to vote for policies that push in that direction.

Yet we tried it with manufacturing for many decades and it was an utter disaster because of what we give up when we try to do that.  The opportunity cost is specialisation and concentration of all our resources and energies into what we're best at.  Instead, you end up with a mediocre everything, rather than a smaller space of excellence that you can then sell to the world.

Who gains, then, from trade policies based on cultural nationalism?  A primary beneficiary is the Trade Union itself, as it captures the right to sell the permissions — a type of action economists call rent-seeking.  It's also good for a handful of Australian actors, screenwriters or others who likewise capture the rents created by the artificial market distortion.

But that's it.  It harms everyone else — including Australian and overseas consumers of Australian stories, because now there are less of them and they're more expensive.  And it harms the long-run prospects of the Australian arts and cultural sector by distorting it away from fitting into global production and markets.

Now perhaps these effects are small, and maybe the production of Australian stories is vigorous enough to withstand these insider taxes.  But let us not fool ourselves that there is any solid logic to this.

It feels good, but really we shouldn't do it.

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Free speech only when approved

The fondness of the Labor Party and the Greens for freedom of speech in Australia would be touching — if it wasn't so hypocritical.  The debate over the Abbott government's anti-terrorism laws and in particular whether journalists should be jailed for writing about security operations has revealed Labor and the Greens' so-called commitment to one of our most basic freedoms is based on political calculation, not principle.

Last month when the government revealed proposals to jail for 10 years anyone "recklessly" revealing information about intelligence activities, Labor's shadow attorney-general Mark Dreyfus described the law as "an unprecedented overreach of government power which poses a real threat to freedom of the press".

That's the same Mark Dreyfus who said it was "exciting" the Coalition had abandoned its promise to repeal section 18C of the Racial Discrimination Act which among other things makes it unlawful to insult or offend someone on the basis of their race.  On Wednesday, in Parliament the Greens' legal affairs spokesperson Penny Wright spoke passionately about how security laws shouldn't threaten freedom of speech.  That's the same Penny Wright who the very next day said she'd fight any plan to amend section 18C.

Labor and the Greens' concerns about anti-terrorism laws could be taken more seriously if they cared as much about the right of Andrew Bolt to question the merits of race-based government programs as they care about the right of a hypothetical Guardian journalist to write about a botched ASIO investigation.  Labor and the Greens care (as they should) that an inadvertent mistake could put the journalist in jail.  But they don't care that Andrew Bolt was taken to court.

Both Bolt and that hypothetical Guardian journalist are performing a necessary and vital service in a democracy — holding the government to account for its actions.  But for Labor and the Greens one is a case of freedom of the press, the other isn't.

Labor and the Greens say they want to ensure any new national security legislation doesn't prevent Australians from having the ability to engage in a full and robust debate on matters such as whether this country should participate in military activity in the Middle East and what should be the powers of those government agencies charged with keeping citizen safe.  Matters such as these are, and should be, in the centre of political debate in this country.  But there's another matter that's also at the middle of the political debate in this country at the moment:  namely, whether Aboriginal and Torres Strait Islanders should be recognised in the constitution.  And from this flows the question of who precisely is an Aboriginal and Torres Strait Islander.

Yet section 18C of the Racial Discrimination Act, the law that both Labor and the Greens supports, prevents that sort of question being asked.  The New South Wales equivalent of the federal Racial Discrimination Act was used against this newspaper in 2000 after the publication of an opinion article discussing the Middle East peace process.  The case went to the New South Wales Administrative Decisions Tribunal.  A finding against the John Fairfax company was only overturned on appeal.  Again, given Australia's continuing involvement in the region, both then and now, that is a topic appropriate for political debate.  Yet Labor and the Greens support measures such the New South Wales legislation

The speech Labor and the Greens want to be free is speech about things they agree with.

In 2012 in his inquiry into the media Ray Finkelstein famously gave as one of the reasons for him recommending the government impose editorial control over the press, the fact some newspapers were "unfavourable to action on climate change".  The Greens and many Labor MPs were enthusiastic barrackers for Finkelstein's recommendation.

The prime minister said in parliament this week, "Regrettably, for some time to come, the delicate balance between freedom and security may have to shift".  That balance has already shifted.

If Labor and the Greens are indeed determined to protect our freedoms, they could start by attempting to get back some of the freedoms we've already lost.

The unspoken benefits of tax avoidance

Few things excite a treasurer more than tax avoidance.

The idea conjures up fantasies of great pots of untaxed money — money the government is morally entitled to but for one reason or another (the weakness of previous administrations, probably) is being denied.

No surprise then, as his budget savings fade away into nothingness, Joe Hockey has turned his mind to the old corporate tax avoidance chestnut.

On the weekend in Cairns the G20 finance ministers agreed to tackle "base erosion and profit shifting ... to make sure companies pay their fair share in tax".  Our very own Hockey, as G20 host, is leading the charge.

Profit shifting refers to the fear that multinational firms are structuring themselves to route profits through lower-taxing countries.

Base erosion is the fear that this profit shifting is eroding the tax base, starving governments of funds.

The Organisation for Economic Co-operation and Development (OECD) started focusing on base erosion and profit shifting last year, pushing it to the front of the G20's agenda.

They've been amply backed up by breathless newspaper stories about the complex tax structures of firms like Apple that have divisions in Ireland and the Netherlands.

All very interesting except for one thing.  The profit shifting problem isn't that much of a problem.

It's true that in the 1990s, when economists and policymakers first turned their mind to how multinational firms plan their tax liabilities, they looked at aggregate country-level data and concluded (as one of the first major studies said) "companies locate a sizable fraction of their foreign activity in tax havens".

This early work implied profit shifting was both real and substantial.

But now economists are working with more fine-grained data specifying how firms structure their internal debt around global affiliates.  And as they look closer at those affiliates, the evidence is telling a very different story.

A 2014 overview of the empirical literature by one of the major scholars of global tax avoidance, Dhammika Dharmapala, concludes "in the more recent empirical literature, which uses new and richer sources of data, the estimated magnitude of (base erosion and profit shifting) is typically much smaller than that found in earlier studies".

There is even, as Dharmapala points out, some evidence to suggest profit shifting has been declining in the last decade, not increasing.

We're now talking about multinational corporations shifting somewhere between 2 per cent and 4 per cent of their profits to tax havens.

Two to 4 per cent is not nothing, of course.

But these lower numbers help resolve the big profit shifting puzzle.  If the corporate tax base is being eroded, then why is revenue from corporate tax going up?

Between 1965 and 2007 corporate income tax revenue increased from 2.2 per cent of GDP to 3.8 per cent of GDP in OECD countries.  (Revenue fell somewhat during the Global Financial Crisis but is on the rebound.)  This despite the fact that corporate tax rates have been lowered over the last 40 years.

Even the OECD, in its 2013 paper Addressing Base Erosion and Profit Shifting, thinks the stability of corporate tax revenue is a bit odd (see here, page 16).

Perhaps the answer is simple:  profit shifting isn't as big a deal as newspapers and treasurers think.

At least, if nothing else, those facts ought to engender some scepticism about whether there really is a profit shifting crisis.  Let alone one that requires urgent, internationally coordinated action.

So where is that scepticism?

We've seen how quickly commentators look for self-interested political motivations behind government pronouncements on national security and foreign policy.  This is healthy.  But all that valuable distrust seems to disappear when we talk about crackdowns on corporate tax — a field where political self-interest is blindingly obvious.

Hockey admitted earlier this month Australia has "amongst the strongest anti-avoidance laws in the world".

Like many other countries, Australia has a general anti-avoidance rule, a catch-all law that allows a court to override any scheme it believes is designed primarily to produce a tax advantage.

Our anti-avoidance rule is incredibly broad and creates enormous uncertainty.  But it is also extremely powerful.  If there was really a tax avoidance problem in Australia the authorities would be well equipped to handle it.

Multinational corporations have to make choices when deciding where they should base themselves.  Different countries have different labour costs, workforce skills, levels of infrastructure, protection of the rule of law, and, of course, different tax rates.

The G20's real gripe is that they are being forced to compete for the tax affections of the world's biggest companies.

You can understand why the treasurers of the world think tax competition is harmful.  They want to maximise their government's revenue.

It's not obvious why we should share their concern.

At the end of the day, consumers and workers benefit when corporate tax rates are low and attractive.  Anything that pressures our governments to keep those rates low is a good thing.

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Metadata and the subversion of privacy

The core government responsibility of protecting lives should not have to come at the cost of illiberal privacy subversions, as represented by the data retention proposal.

Australians have been rightly appalled by the shocking images of depravity and mayhem caused by the jihadist military group the Islamic State of Iraq and the Levant, now known as Islamic State, and of Australian citizens found combating in conflict torn parts of the Middle East.

But the vital question is what should be the appropriate response, if any, to combat such extremism?

Last month the Abbott government gave insight into its intentions by announcing additional funding for national security agencies, further tightening of existing security legislation, as well as a review of the existing public administrative structure surrounding counter terrorism responses.

A particularly controversial element of the government's proposals would require telephone companies and internet service providers to store the internet browsing and telephone call non content data, or "metadata", of all Australian residents for up to two years.

The suggestion is that the more lengthily stored metadata can be made accessible to intelligence and law enforcement agencies, such as ASIO, federal and state police departments, and without the issuing of a warrant to attain access.

According to a leaked consultation paper prepared by the Attorney General's Department, the coverage of the kinds of data the government wants to see retained is expansive in its nature.

Data proposed for retention include current and historical names and addresses of individual internet and telephone account holders, their date of birth, financial and billing information, the date and duration of communication, frequency of calls or internet downloads and uploads, and the type of communications devices used.

The one big shot in the argumentative locker favouring this proposal is that people should not be concerned about the prospect of more vigorous online surveillance if they have done nothing wrong.

This is a most seductive argument, which explains why it is frequently invoked by those demanding stronger security arrangements, but it is a highly misleading one.

There is a natural inclination to seek a modicum of privacy for certain aspects of our lives, and this desire to maintain a private realm, quarantined from the hustle and bustle of the public square, generally appears widespread.

The many practical, if not mundane, manifestations of privacy include clothing ourselves, seeking nightly refuge in our homes, sharing intimate information and moments with people we choose as partners and friends, and even many aspects of online communications.

Some argue in this social media age our threshold desire for privacy has lessened considerably, but this is debateable, not least because individuals exercise choices in using social media and in disclosing as much, or as little, information to their online friends or followers as they wish.

Other instances, such as the controversies surrounding the X raying and photographing of human bodies at airports, suggest that a demand to keep certain aspects of ourselves private, and away from the prying eyes of strangers, very much remains alive and well.

The other major problem seems to be that the proponents of more stringent government surveillance often confound the natural inclination to privacy with conceptions of wrongdoing, or at least suspicions of wrongdoing, which involve genuine harm inflicted by a person, or groups of people, upon others.

The idea that people exercising their right to privacy may be committing, or even planning to commit, wrongdoing, such as acts of terrorism, happens to dovetail rather neatly into the inherent tendency of political actors to seek evermore prescriptive controls over the population.

In his polemic, Privacy:  A Manifesto, German sociologist Wolfgang Sofsky stated that "for the security apparatus, an open society is ultimately a collection of shady figures, every brain is a fount of evil ideas, every private space a dark abyss whose furthest corners must be illuminated."

Under this scenario, "the subject is always suspect.  Hence the task of the security services is never done."

This risk of overreach into the private lives of individuals thereby calls for a need for strong checks and balances, but experience soberly appears to be at odds with any iron clad guarantees that the metadata retention regime would definitely not be at risk of being abused.

It has been suggested that ASIO has created files on about 500,000 Australians since its formation in 1949, including those for Communist Party of Australia members during the Cold War era, environmentalists, indigenous rights campaigners, gay activists, and others against which governments of the day harboured vendettas.

In recent years there have been circumstances in which staff at several government agencies, such as the Australian Taxation Office and Centrelink, had been found to have breached standards pertaining to the privacy of taxpayers and other clientele.

There have also been revelations that major internet service providers have even provided website browsing histories of certain individuals, incidentally not covered under the current metadata retention proposal, over to the government without a warrant.

The broader danger of continuous invasions of privacy by government upon the maintenance of a dynamic and open society cannot be ignored, either.

In essence, the inclination of individuals to act and express themselves in ways which deviate from convention, but which are nonetheless harmless, may diminish with the knowledge that those acts and expressions could arouse suspicion and punishment by surveillance agencies.

If one of the intents of terrorism waged by murderous extremists is to goad Western governments into policies which erode individual liberties at home across a broad scale, then the proposed Australian metadata retention scheme, for one, appears to neatly fit into that category.

And by no means should metadata retention be conceived in isolation, since the commonwealth government has aggressively expanded the size and scope of the national security and surveillance state since at least the time of the 9/11 terror attacks.

This is reflected in the inflated budgets and staffing for relevant security agencies, and the much greater ease with which those agencies can detain suspects and obtain information, as traditional due legal processes are watered down.

Terrorism is undoubtedly a threat to public safety, but it seems on far too many occasions that the prevention of reckless and destructive behaviour by the aberrant few is at the expense of the rest of us peacefully maintaining our inherent right to privacy.

Will we kill civilians in an effort to save them?

The humanitarian intervention problem is that the following two propositions are both equally true.

First, there is a moral imperative to prevent humanitarian tragedies.  Any notion of state sovereignty has no force when that state is murdering its own citizens.  And "it's none of my business" is not an appropriate response to foreign atrocities.

But second, military interventionism is unlikely to be effective at anything more than achieving immediate, short-term goals.  It is certain to have unanticipated and unintended consequences.

At best the results of intervention will be unpredictable.  Preventing tragedies in one time and place may indirectly contribute to tragedies in another time and place.  At worst we end up killing civilians in an effort to save them.

Neither of these two propositions ought to be controversial.  The former is an obvious moral truth.  The latter has unfortunately been demonstrated over and over again.

It's easy to think of instances where military intervention has been ineffective or counterproductive.  It's less easy to recall examples of clear success.  The successful reconstruction of Germany and Japan after World War II seem more like mysterious outliers than models to emulate.

Despite this sad record, there is an emerging doctrine in international law and relations called the "responsibility to protect".  The idea is that while states have the ultimate responsibility to look after their citizens, those that fail to do so are liable for foreign intervention — from gentle diplomatic suasion right up to military action.

Known informally as "R2P", this doctrine was first acted upon in 2011 with the military intervention in Libya.

Few dictators deserved to be overthrown more than Muammar Gaddafi.  But three years later Libya is in chaos.  Just last month Human Rights Watch was reporting war crimes in the ongoing battle for control of Tripoli.  There are a quarter of a million militia fighters in Libya.

So unless R2P advocates only care about the very short term, it is fantasy to describe the Libyan intervention as a success.

Yes, it is possible that Western military action prevented something worse.  But that counterfactual is impossible to test.  The measure of humanitarian intervention can't be simply whether we can defeat third world dictators in battle.  We can.  What happens after the initial intervention matters too.

I'm sure the legal validity of R2P has been carefully worked out by international lawyers and scholars.  But as a guide for policy, it is a triumph of hope over experience.

It is sometimes claimed that the 2003 invasion of Iraq would have been a clear success if Barack Obama hadn't withdrawn troops in 2011.  Like Gaddafi, Saddam Hussein deserved his fate.  Perhaps if coalition troops had stayed then we wouldn't be facing the Islamic State problem now.  (See, for instance, this recent piece in the Washington Post.)

However, if the success of the 2003 Iraq war was really dependent on a never-ending military commitment, then it was hopeless from day one.  Domestic political constraints make permanent occupation impossible.  The public tolerance for casualties and deficits is finite.  Eventually voters turn against war.  This domestic reality has to be factored into intervention planning.

And yet ... it is simply impossible to watch overseas tragedy unfold without wanting to prevent it.  One 2010 book put this way:

Even those who are deeply suspicious of armed humanitarian intervention and deeply sceptical about its prospects of success may still admit that it might, in theory, be justified when a humanitarian crisis is sufficiently serious.

That intervention has failed in the past does not mean it inevitably fails in the future.  No doubt there are some Libyans alive because of Western action.

But what's not acceptable is the "it's the thought that counts" school of humanitarian intervention which washes its hands of long-term consequences in order to bray about quick military victories and our altruism-by-force.

Take, for instance, this Guardian piece after the Libyan intervention:  "No large-scale military intervention ever comes free of moral hazard."

Or this one by the former US State Department official Anne-Marie Slaughter, proclaiming the moral goodness of intervention and Western values and all that, then casually admitting at the end that "Libya could disintegrate into tribal conflict or Islamist insurgency, or split apart or lurch from one strongman to another".

Overseas atrocities present a genuine and tragic dilemma.  The case for protecting civilians against IS is unimpeachable.

But Tony Abbott told ABC radio yesterday that he could not "promise perfect success".  This is not a good sign.  And the mission's goals are already hopelessly confused.

Attorney-General George Brandis says IS is an "existential threat" for Australia.  Yet, on the other hand, we're also being told what's planned is "a humanitarian operation to protect millions of people in Iraq from the murderous rage of the ISIL movement".

So which is it?  Are we at war to defend Australia or to protect Iraqis?  The distinction isn't minor.  Is our goal to contain the threat or to destroy it?

Contrary to what the Prime Minister has said, fighting IS is hardly a "specific and clear objective".  It seems like the exact opposite:  vague and open-ended.  Maybe we'll defeat IS.  Or maybe, in Obama's words, we'll just "degrade" it.

The truth is of course we are only returning to Iraq as part of an American coalition.  That the mission is unclear is a reflection on the Obama administration rather than the Abbott Government.

Either way, the question that policymakers have to confront is not whether we have a responsibility to protect Iraqis and Kurds from the IS menace.  The real question is whether we are capable of doing so.

Abbott heads for the shifting centre

All things considered, the Coalition government isn't going too badly when on the first anniversary of its election it is only trailing the Labor Party in the opinion polls by 48 per cent to 52 per cent.

The question now is what Tony Abbott will do in the remaining two years of his first term.  Will he remain "ideological" and "tribal" (as Michelle Grattan put it last week) or will he become "centrist" and "pragmatic" (as many pollsters and commentators are urging).

It's debatable just how ideological the Abbott government has been anyway.  The PM dropped his promise to restore freedom of speech, Joe Hockey's budget wasn't particularly tough (other than on those people with incomes above $180,000 who have seen their top tax rate increase), and Industry Minister Ian Macfarlane is fighting any substantial change to the renewable energy targets.

The argument could be made that if anything the Coalition has bent over backwards to prove just how non-ideological it is.  This observation prompted an astute comment on Professor Sinclair Davidson's Catallaxy Files blog.  It was pointed out that one difference between the Labor Party and the Coalition is the Labor Party believe their supporters' interests are in the national interest, while the Coalition sometimes think their supporters' interests "are somehow different from the national interest".

Balancing ideology and pragmatism will be a recurring theme for the life of the Abbott government, as indeed it is for all governments (and oppositions).  Already pragmatism is the watchword for the Coalition's dealings in the Senate.

SWING TO THE LEFT

The problem for any political party of the centre-right in Australia that attempts to govern from the "centre", is that the centre of policy and political discussion in this country is moving to the left.  There are a few exceptions to this rule, such as border protection — but not many.

The question for the Liberal Party is whether it follows the political centre leftward or whether it tries to swing the centre back to where it once was.  The evidence of the drift of the political centre to the left is not hard to find.

A commitment from public commentators in this country to the importance of freedom of speech and a free press would once have been taken for granted.  Now a belief in freedom of speech is regularly labelled as "ideological" and even, bizarrely, as something that's "right wing".  Both sides of politics now accept that reductions in government spending can only ever be "fair" if taxes on the wealthy are raised at the same time.

Beyond the issue of domestic policy, it once would have been uncontroversial to argue that a country like Israel, a liberal democracy surrounded by terrorist and authoritarian regimes, would have the right to defend itself if attacked.  The urging of some Liberal MPs for Australia to be more "neutral" in what's rightly been called a battle between civilisation and barbarism reflects how attitudes towards Middle East politics have changed.  When it comes to foreign affairs, governing from the centre would require Tony Abbott to abandon the Australian government's support for Israel.

Exactly why so many Liberals are so eager to occupy the centre of Australian politics, when the centre has so obviously moved to the left, is a mystery.  One of the reasons might be that it's easy.

Another reason might be that fewer and fewer Liberal MPs are willing to engage in the battle of ideas.  Not enough Liberals understand for example that the reason the political left is so keen to describe every effort of the Liberal Party to redress the balance of debate in this country as the reigniting of the "culture war" is that the left has already won that war.

When the curriculum that is taught to every school student in Australia has environmentalism as one its three defining themes it's reasonably clear which side has won.

Many of the policy reforms the national interest requires — particularly of industrial relations — are at the moment outside the centre of Australian politics.

Merely accepting the status quo and governing from the centre means there's no chance the electoral environment will ever be created that will allow Tony Abbott to make the reforms the national interest requires.

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Tony Abbott's internet filter is full of holes

If the Abbott government proceeds with its current proposal to crack down on online copyright ­infringement it will be reviving ­elements of Labor's failed internet filter.

It's extraordinary that this government is considering such a scheme for two reasons.  First, an internet filter is a censorship regime that poses a serious threat to freedom of speech.  And second, the proposed regime will not put an end to online piracy.

The threat to freedom of speech is clear.  The government's proposal, outlined in its discussion paper entitled Online Copyright Infringement, requires internet service providers to block websites which have a "dominant purpose" of infringing copyright.

The intention of the government's policy is to stop Australians from being able to access pirated material online.

The risks of such a regime are many.  It is unlikely that the only websites to be blocked will be those sharing pirated material.  Inevitably, other websites will be blocked through error and misjudgement.  Even the test is vague.  Some websites have ­pirated material but also offer other legitimate services to users.  It is not possible to block half a website so the whole thing will be censored.

And there is another problem.  A censorship regime simply will not work.  Back in August 2010, then shadow communications minister Malcolm Turnbull said of ISP-level website blocking:  "It was a really bad idea that could only have come up from people that actually didn't understand the internet."

Now Turnbull, along with ­Attorney-General George Brandis, is in charge of implementing the Abbott government's own ISP-level website blocking regime.

What Turnbull understood in 2010 was that such a regime could be easily bypassed.  At a very low cost, internet users can download a virtual private network.  VPNs allow Australians to connect to the internet through ­another country.  A VPN is all that is required of anyone seeking to circumvent the piracy crackdown.  Other tools, such as anonymising software, are equally easy to use and require very little technical knowledge.

Prior to the 2013 federal election, the Coalition promised to restore freedom of speech.  Now in government, the Coalition has a rare opportunity to defend the liberal democratic principles it championed during the election campaign.

But the government's crackdown on piracy fails to take advantage of this significant opportunity.  Rather than censoring the internet, it should be restoring freedom of speech.  This policy is a glaring about face.

Romanticising reform: we've set the bar too high

Is major economic reform no longer possible?

That's the conclusion Paul Kelly draws in his recently released history of the Rudd and Gillard governments, Triumph and Demise:  The Broken Promise of a Labor Generation.

Yet it's a strange conclusion, because the story Kelly tells over 500 pages is one of near-constant ineptness and dysfunction by Kevin Rudd and the architects of Julia Gillard's 2010 coup.

If Kelly's narrative is correct then surely getting rid of those characters would allow reform to pick up again.

Of course there's much more to a political system than politicians.  If Australia is unreformable then it must be for institutional reasons.  Not simply because we've had a rubbish bunch of recent leaders.

Kelly offers a few institutional explanations for why political culture has changed.  First, the pace of personal and social life has intensified.  Second, social fragmentation and technology mean that "sectional interests have more power than before".

These aren't really answers though.  Why has the pace of personal and social life intensified?  And surely sectional interests were more powerful when — for instance — the major parties specifically represented sectional interests, as the Labor Party did for trade unions and the Country Party did for the agricultural sector?

The last major reform success Kelly identifies was John Howard's GST in 1998.  The question is what has changed since.  There are a few possibilities.  For instance, Australia is richer and more populous.  But it's hard to see why that would make us less open to reform.

Technological change is one obvious institutional explanation.  As technology has destroyed the business models of the big news outlets, it has also undermined the clubbish nature of Australian politics.

In the past policymakers were able to call up a handful of key journalists and media owners and they'd be virtually guaranteed press gallery support for their agenda.  The cramped quarters of Old Parliament House meant that journalists and politicians lived on top of each other.

When a journalist tried to break out of the club — as Max Newton did when he left The Australian in 1965 and set up his own publishing outlets — it was scandalous.  (The story is best told by a press gallery insider who opposed his reintroduction to the gallery, Alan Reid, in the 1969 book The Power Struggle.)

Now the mastheads are collapsing and the gallery is starting to be populated by outsiders.  Take Crikey and the Guardian, for instance.  Political commentators — as opposed to gallery journalists — are even more diverse and uncontrollable.

There are more outlets, those outlets that exist have fewer staff, and digitisation means those staff can be spread around the country.

It's now entirely impossible to line up the press behind a major new policy with charm alone.

This is a good thing though.  If it is hard for politicians to railroad through reform because our democracy is richer and more vibrant, well, too bad for reform.

There are two popular technological explanations for our political malaise that we need to rule out:  social media and the 24-hour news cycle.

Social media has democratised political debate but it would be hard to blame Twitter for Kevin Rudd abandoning his emissions trading scheme or the lack of consensus on Joe Hockey's GP co-payment.

Anyway, social media is hardly the first time the political class has faced media democratisation.  Talkback radio was a virtual revolution when it was legalised in 1967.  Talkback delivered passionate, virtually instant political feedback.  Politicians and parties struggled to adjust their campaign and communications strategies accordingly.

But they managed.  As they will with Twitter and Facebook.  It's easy to forget how recent any of this stuff is.  In 2007 merely posting a video on YouTube — as John Howard did during the campaign — was remarkable.

And the 24-hour news cycle?  Yes, 24-hour television is a relatively recent innovation in Australia.  But nobody really watches it.  We've had 24-hour radio for decades.  We certainly had it during the great reform era of the 1980s.

Too often the political class is deluded into thinking voters care about day-to-day politics.  "Winning the day", as Kevin Rudd tried to do, means nothing for those people who tune into the political news at most a few times a week.

In other words, the problem is less the technologies that govern politics but the way political strategists adapt themselves to those technologies.

If the world has changed, the political class is just going to have to learn how to change with it.  They're in the middle of this process.  They haven't yet reached a comfortable equilibrium.

Nor is it clear that the technological empowerment of activists and corporate interests presents a roadblock to reform.

Take the now iconic example of resistance to government policy — the anti-mining tax campaign in 2010.  This campaign was actually as traditional as they come.  An industry peak body took out television ads.

In practice this campaign was not much different from the anti-bank nationalisation campaign run by the banks nearly 70 years ago.

One year into the Abbott Government and it's easy to think the worst of the political system.  But over-rating the past in order to reflect poorly on the present is an old human pastime.

Kelly more than anyone has created the hero story of Australian political history.  His 1992 book End of Certainty made Paul Keating and Bob Hawke out as larger-than-life figures whose decisions were confident, epoch-defining, and Australia-changing.  (The contrast between Kelly's bombastic End of Certainty, and Laura Tingle's gloomier Chasing the Future, published just two years later, is striking.)

Our political class has imbibed a thoroughly romantic interpretation of the 1980s and early 1990s.

Against it, any modern leader would fall short.

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Public spending cuts: Objection must be overcome

Even if the Abbott government succeeds in getting its key budget measures passed, the fiscal sustainability challenge still looms menacingly into the future.

Although there are many commentators who have disputed the government's narrative of a "budget emergency", the state of the federal budget matters because it has an important bearing upon the overall size of government.

Commonly, but not uniformly, defined as the share of government spending to gross domestic product, trends in government size are important because they provide insight into the extent to which the public sector reallocates and redistributes resources from the private sector for political purposes.

A relatively greater degree of political reallocation and redistribution is associated with slowing economic growth in the longer term, because of factors such as the imposition of distortionary taxes to finance government spending, the displacement of decision-making made through markets and the focus away from entrepreneurial toward lobbying efforts.

Most of the empirical literature, especially more recent studies relying on better datasets and improved econometric techniques, draws the conclusion that relatively larger government slows down economic growth, and this has significant implications for the achievement of material aspirations ofordinary people.

A slower rate of economic growth means it is more difficult for the unemployed to find a lucrative job, and that is a major problem but slowing growth rates also means people with jobs will find it more difficult to attain the additional income needed to fulfil their dreams and hopes, whatever they may be.

When the economy slows as a result of excessive government, individuals find it more difficult to save for that next bout of education and training, a home, or even their next holiday, and families find they have to, say, forgo some new whitegoods to replace the old ones, buy that extra car, or do the extension on the house.

A recent study by the Parliamentary Budget Office has shown that Commonwealth government spending increased by 3.6 per cent a year over the past decade, in excess of 3 per cent growth in the economy.

If this trend of spending growth exceeding broader economic growth were to continue, this would surely act to further increase the relative size of government, in this context at the federal level, with all the deleterious long-term implications this would entail.

The PBO estimates that the Abbott government's first major response to the recent overspending legacy, namely its first budget, contains various measures which would be expected to save $116.6 billion over the next 10 years.

But the trick is that the government legislates all of its changes, at least in the form as announced in the May budget, and that appears no sure thing.

Even if the original budget measures are passed in full, with the effect of belatedly reducing spending growth (2.4 per cent per annum over 10 years) below that of projected economic growth (3 per cent a year), the ratio of Commonwealth spending to GDP would remain, on average, about the same as recorded over the past decade.

And if no further policy changes were enacted, key elements of federal spending would continue to grow exerting additional fiscal pressure on the budget, and in some cases further exacerbate intergenerational fiscal inequities.

The PBO projects that Age Pension spending will grow by $601 billion over the period 2014-15 to 2024-25, spending on Medicare by $287 billion, aged care spending by $242 billion, an extra $228 billion over 10 years on the Disability Support Pension, and $225 billion in extra federal spending on the states' hospitals.

It is also projected that spending across a wide range of other governmental functions will keep growing, from defence through to corporate welfare, and even the interest bill on the bloated stock of Commonwealth debt will grow by almost $200 billion thereby displacing other, and potentially more productive, forms of spending.

Disconcertingly, an array of spending functions, such as childcare and schools, is likely to still grow faster than overall economic growth over the next decade, and the proposed Paid Parental Leave scheme will projected to add another $64 billion over 10 years to the spending burden.

These trends underline the enormity of the orgiastic expenditure by successive federal governments over the past 10 years, and how even self-proclaimed good budget managers dedicated to resolving Australia's budget emergency can barely restrain themselves from adding to the overall fiscal pressures that future taxpayers will confront.

Some commentators have concluded that if politicians cannot find sufficient expenditure savings to return the budget to balance, or perhaps a modest surplus, then tax rates ought to increase so as to empty the wallets of individuals and businesses more thoroughly for the sake of filling up the public treasury.

For all of its previous "low tax" rhetoric, the Abbott government surprisingly complied with the political agenda for higher taxes, most notably in the form of a "deficit levy" adding 2 per cent to the top personal income marginal tax rate in an attempt to collect an extra $3 billion over four years.

But setting Australia on a journey back to fiscal sustainability by lifting the taxation burden is inherently incompatible with the objective of reducing the size of government, since taxation equips government of the financial means to spend more and that additional taxation dampens private sector economic activities.

The political challenge of reducing government size through spending reductions, and even through the indirect route of lifting economic growth rates and hence GDP, is significant given the influence of constituencies opposing spending cuts and, indeed, economic growth.

As has been most evident in recent months, there is an array of vested interests that will conservatively defend their favoured areas of spending against any reductions, and seemingly regardless of the economic or fiscal circumstances.

But it is also becoming more difficult for reformist politicians to partake in comprehensive measures of deregulation, and similar measures, helping to ensure the growth rate of the economy remains in excess of government spending growth, thus helping to depress the overall size of government.

The objections to economic growth, including those grounded in environmental, inequality, and even "not in my backyard" considerations, are abundant and are gradually dominating the modern policy discourse.

These trends within the political culture are making proposals to reduce government spending and lift economic growth, even the modest Abbott proposals, more difficult to implement, but they must be overcome if the promise of a better future for everyone is to be fulfilled.

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Black economic empowerment must be scrapped to overcome inequality

If ANC secretary general Gwede Mantashe wants "transformation" of South Africa's post-apartheid economy, he should look down, not up.  Since the nation's transition to democracy, black South Africans have faced a new set of economic restrictions.  And impinging on the property rights of white South African farmers is not the answer.

Mantashe recently told the South African Chamber of Commerce that "the debate about property rights must include debate about qualification (of ownership)" to create "a just post-apartheid society".

He was talking about South Africa's agriculture sector where the majority of commercial farms are still owned by white farmers and implied the government's practice of re-distributing this land would be ramped up.

But the key to accelerating the economic development of black South Africans is to deliver them true economic freedom — not to subjugate the economic rights of white South Africans.

For everything else it was, apartheid was a system of economic repression.  Measures such as banning black business ownership, creating barriers for black access to various industries, denying property rights to non-whites and, most hated of all, the dreaded pass laws that restricted freedom of movement were first and foremost economic restrictions.  They were amongst the most pervasive and "everyday" components of apartheid's wickedness.

Of course, the ANC government has rightly swept many of these restrictions away.  But black South Africans are still denied various basic economic freedoms.

Primary amongst them are property rights.  The legacy of apartheid has left many black South Africans with weak and insecure property rights.  Indeed, approximately two million households live in informal settlements or backyard shacks and in rural areas 2.5 million households hold land as part of "communal tenure" regimes.

The transition of these people to genuine property rights must form a key part of the ANC's economic strategy.  Not only are property rights a human right, but they have been associated with myriad practical economic and social benefits.  These include increased women's empowerment, investment in agricultural and urban infrastructure and labour market participation.

Not to mention the impact strong property rights can have on increasing entrepreneurship.  In the United States, some 70% of businesses are started by using a family dwelling to leverage bank loans.  Millions of black South African entrepreneurs are currently restricted from doing this.

Furthermore, housing remains an issue in South Africa.  The government has attempted to provide free housing for those who cannot afford it, but 2.3 million mostly black South Africans are still waiting on the so-called RDP waiting list.

However, by subsidising the housing market, the government has crowded out the private sector, and left a "gap" in the market.  Robert McGaffin, a senior lecturer at the University of Cape Town, estimates that between 20% and 25% of South Africans are earning too much to qualify for the free housing grant, but too little to secure a mortgage.

By curtailing the emergence of an affordable banking sector in South Africa that would serve all income levels, the government is restricting the continued emergence of a black middle class.  The government would be better served getting out of the way and enabling people to exercise their human right of participating in a free market.

Whilst the formal barriers to entry of the apartheid era have been cast aside, there are still many obstacles to black South Africans starting a business.  This year, South Africa dropped from 56 to 64 on the World Bank's "Doing Business" register in the category of "starting a business".  This is a trend the government must work hard to buck.

According to the Heritage Foundation, South Africa is also blighted by corruption and a lack of regulatory transparency.  Both of these things stifle entrepreneurship and economic activity and it is the poorest South Africans who pay the harshest price.

Finally, the government must discard the elephant in the room, Black Economic Empowerment (BEE).  Last year The Economist claimed BEE has feathered the nest of the black elite at the expense of the poorest because it incentivises having political connections over real economic entrepreneurship that creates jobs.  It is little wonder that the unemployment rate amongst black South Africans is 28.5% (41.6% if you count those who have given up looking for a job).

The antidote to the lingering racial inequalities in South Africa's economy is the economic freedom of all South Africans.  The ANC promised a free South Africa — now is the time to deliver.

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Arts venture capitalism

The arts economy by-and-large replicates the rest of the economy in its structures, complexity and diversity.  There is a craft-based core unchanged for eons and a dynamic middle made up of more or less market-based organisations who — whether they like it or not — are industrial and commodified;  many elements are globalised, some undergo rapid technological change, and a leading edge exists only for a wealthy elite.  Furthermore, like the rest of the publicly funded components of the civilian economy, health and education say, arts budgets are perennially tight and under pressure, never having quite enough to do all that they want, and usually substantially less.

The typical income stream of organisations that receive arts funding, according to the Arts Council England, is characterised by 40 percent subsidy, 50 percent earned income (from ticket sales, for instance), and 10 percent from other contributions, usually philanthropic donations.  It is likely that Australian arts organisations have a similar fiscal profile.

There are two possible solutions at this point to the problem of insufficiency.

One is to seek to increase the extant revenue stream by persuading taxpayers to contribute more, or to increase earned income (maybe by increasing ticket prices, or offering a more commercial product), or by tapping harder into voluntary contributions.  None of these are easy or welcome prospects.  Most have already been tried.

The other possibility is to make the existing funds work harder.  Toward this end Nesta, a London-based independent charity that specialises in innovation research, has recently released a new report that proposes three areas where new funding models and approaches might be deployed to leverage additional revenue and create a more sophisticated arts funding ecology.

None of these ideas are particularly new.  Indeed, all are standard business practises in much of the rest of the economy.  But the arts sector has been uncharacteristically slow to adopt these funding approaches.

The arts should do R&D

First, the report notes that arts organisations don't do a lot of research and development.  To be clear, it is facile to say that arts is already nothing but R&D — that's not what is meant;  rather R&D refers to experimental investments in developing new processes or models that might then be replicated at scale.  The publicly funded arts actually do relatively little of this.

In the broader economy, about 2-3 percent of all spending is on R&D.  In some industries, that number exceeds 20 percent.  They suggest that public arts funders commit at least one percent of their total budget to R&D on such matters as expanding audience research, or exploring new business models and missions.  Specifically, they argue that some similar fraction be earmarked in all large grants for this purpose.

This doesn't happen, but it should.  There is a genuine public good aspect to this, because success in discovering new ways of adding value, or connecting with audiences, or developing new processes can be replicated across the sector, to the benefit of all.  Granting agencies should take the lead on this.

Accelerators

One of the more intriguing suggestions in the report is the use of accelerators.  Accelerators first emerged in the tech sector as a complement to venture funding — a famous one is Y Combinator, which developed companies such as Airbnb — but have recently migrated to social investment too.

An accelerator is basically an organisation that specialises in launching and developing new organisations — by concentrating on the problem of new groups trying to do new things by pairing this with highly incentivized and intensive expert and peer feedback.

Accelerators work — and may be one of the great institutional innovations of the early 21st century.  But they barely exist in the arts economy.  This cannot remain so.

In the tech sector accelerators were a product of demand — young inexperienced new businesses, with venture capital riding on them, desperately needed these "finishing schools" — and the market provided.  The situation in social investment was similarly driven by a strong demand to cut through by employing best practice organisational technologies.  And again, it worked.

Arts economy accelerators will similarly need to be demand driven.  In the tech sector venture capital push and competitive entrepreneurial pull created the pressure.  Neither of these forces is strong in the arts economy.

But there are examples.  The fashion reality TV show Project Runway, for instance, is in essence an accelerator.  Some creative thinking will be required here, but the nesta report provides some useful illustrations.

Match crowdfunding to public funding

A third proposal builds upon a model that is a rapidly increasing part of the collaborative economy, and is well known to many in the arts economy already — namely the use of crowdfunding.  But the nesta report suggests a particular strategic use for arts organisations, namely to tie it to matched public funding.

This is a way of seeking pure leverage, so that public funding would be conditional upon a particular quantum of crowdfunding.  But it is also a way of aligning incentives to ensure that lobbying efforts skew more toward potential audiences and less toward funding agencies.  Everyone wins from that outcome, except those with soft and cosy relations with funding agencies.

The new art of finance

The arts economy needs to adapt to the latest institutional developments in venture finance and organisational technologies.  While these innovations originated in other sectors, there are many reasons to expect that they will work similarly well in the arts economy.

But they need to be driven by demand, which in practice means they will need to be pushed by arts funding agencies in the first place, which in philosophy means they will need to behave more like venture finance.

In the long run, public funding agencies have much to gain by such a move.  They will get better experiments, better learning and development, better matches to public demand, and a more robust ecology for the arts economy.  Friends of the publicly funded arts should support the adoption of these new institutional technologies.

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Don't rush to Act on terrorism threat

Specific policy problems demand specific policy solutions.

So the Abbott Government has done us a favour by being very specific about the new terrorist threat:  Australian residents fighting in Syria and Iraq who come home even more radical and potentially violent.

These "foreign fighters" are a specific threat that demand specific legislative change.  It does not demand an overall increase in broad and adaptable police and national security powers.

Let's start, as all policy discussion should, by being clear about the problem.

One in every nine jihadists who travel overseas to fight in foreign conflicts return to attempt terrorist attacks in the West, according to the best estimate we have.

Considering there could be more than 100 Australians fighting in Syria and Iraq, that ratio is worrying.

The one-in-nine figure was assembled by Thomas Hegghammer and published in the American Political Science Review in February 2013.  It's based on jihadists from the West between 1990 and 2010.

The Syrian conflict started in 2011, outside Hegghammer's analysis.  In an excellent piece in the Age in August, Andrew Zammit detailed some instances of Syrian returnees going on to plot domestic attacks.

One-in-nine is hardly an iron law of terrorism, of course.

Fighting in foreign wars is a very old phenomenon — think George Orwell in the Spanish Civil War — and the motivations for fighting in foreign wars and conducting domestic terrorist attacks differ enormously.

Terrorism remains an extremely low probability event.

But one thing we could say about foreign fighters is that they've done law enforcement agencies a huge favour — they've self-identified as security threats.  As Hegghammer points out, experience in jihad overseas is the biggest predictor of future terrorist intent.  So they're good candidates for close monitoring.

Or good candidates for immediate prosecution.  It is illegal under Australian law to engage, or intend to engage, in hostile activity in foreign states.  An exception is joining the armed forces of a foreign state.  (Australians can't join Syria's pro-Assad military, though — we have sanctions prohibiting that.)

Here's where Parliament can get to work.  This law was originally developed to prevent mercenary activity in Angola and Rhodesia in the 1970s.  Today it is not particularly fit for purpose.

Bret Walker, until recently the Independent National Security Legislation Monitor, has repeatedly argued for reform of the law governing foreign fighters.  Walker's last annual report exposes a number of inconsistencies and concerns that the Abbott Government needs to fix.

For instance, it's hard to prosecute foreign fighters in Australian courts.  Laws governing the collection of evidence overseas require the cooperation of foreign states, but what if the offence occurred in a region with no functioning or cooperative government?  This is a problem in both Syria and Islamic State-controlled Iraq.

In these very limited circumstances it might be necessary to relax some of the restrictions on what evidence can be admitted into court.

One popular argument is that we should just let foreign fighters go — better they fight and die for jihad overseas than plot terror attacks in Australia.  But not all do die.

This New York Times piece points out that many foreign fighters plan to stay in Syria and Iraq for good.  Some show their dedication by symbolically burning their Western passports.  Yet plans can change.

Anyway, why should we be any more tolerant of those who travel to train and fight in Syria or Iraq than we were of the previous generation of jihadists who joined training camps in Afghanistan?  Zammit points out that many of them intended to fight in regional conflicts before being recruited by Al Qaeda to attack the West.

Regardless, it's probably best that Australia does not act as a staging base for terrorist attacks on foreign civilians.  There is no fundamental human right to wage sectarian war.

Walker has identified some serious inconsistencies between the criminal code and the foreign fighter laws.

In large part this is because successive governments have piled terrorism offense-upon-offense into the statute books, rather than systematically reviewing what sort of conduct is already criminalised.  George Williams calculated that after the September 11 attack the Howard government introduced new anti-terror legislation every 6.7 weeks.

The Abbott Government is heading down the same path.

The Attorney-General George Brandis has proposed reversing the onus of proof for Australians who travel to dangerous parts of the world — the prove-you're-not-a-terrorist proposal.  Undermining the presumption of innocence is an incredibly ham-fisted way to tackle a genuine evidentiary issue.

The foreign fighter threat doesn't justify the dangerously broad restrictions on reporting security operations contained in the legislation introduced to Parliament in July.

Nor do a few dozen Australians waging jihad in Syria go anywhere near justifying — for instance — a mandatory data retention scheme, which, by requiring internet service providers to create a database of information solely for the purpose of law enforcement, would treat all Australians as potential criminals.

Taking the foreign fighter threat seriously justifies some legislative change;  minor change, yes, but important.

It is not the case that any legislative change will do.