Picking Judges

President Donald Trump and congressional Democrats in the United States are about to engage in political warfare about who will be their next Supreme Court judge.  Australians should be envious.

The American president fulfilled a key promise to conservative voters by nominating Neil Gorsuch to the court's vacancy.  Gorsuch is by reputable accounts an exceptionally qualified jurist, and an originalist in the mould of the late Antonin Scalia to boot.  Regardless, Gorsuch will need to be confirmed by the US Senate to take a seat on the Supreme Court, meaning his qualifications, temperament and suitability for the office will be the subject of robust public debate.

This makes the American judicial appointment process more transparent, as it expects potential judges to make their views on the law known before occupying one of the most powerful positions in the country.

Compare this to Australian judicial appointments.  The High Court is the last court of appeal in the Australian judiciary and has original jurisdiction to declare whether Commonwealth legislation is constitutionally valid.  Yet the process is so opaque that it is unreasonably difficult to get an understanding of what sort of judge that appointee would be.

In case you missed it, this happened very recently.  In November — with no fanfare — the federal government announced that the retiring Chief Justice Robert French would be replaced by Justice Susan Kiefel, whose position in turn would be filled by Federal Court Justice James Edelman.  To even less fanfare, Kiefel and Edelman were officially sworn into their new roles in late January.

By the time the 42-year old Edelman reaches the mandatory retirement age, he will have sat on the court for nearly three decades.  His CV is undoubtedly impressive, but his opinions on constitutional law are not widely known.  This is not exceptional, but highlights something true of all High Court appointees:  that while these judges wield significant power in the Australian political system, there is currently no expectation that a judge should explain how they would use that power.

What the American process gets right is that only at the time of appointment can a potential judge be scrutinised for their approach to statutory and constitutional interpretation.  Unfortunately, the Coalition government since 2013 have been dismally risk-averse in their judicial appointments, preferring instead to appoint uncontroversial "orthodox" judges who will maintain the status quo.  This status quo is the decades of accumulated decisions stretching back nearly 100 years which have fundamentally transformed the federalist nature of the Constitution.

The essence of federalism is decentralised decision making.  Where the laws and regulations that people need to observe are made by those who are most closely affected, the result is more representative law that is appropriately tailored to local circumstances.  Different levels of law-making produces jurisdictional competition which can ultimately drive governments to make good choices:  for instance, the reason that death isn't a taxable event in Australia anymore is because the Bjelke-Petersen government in Queensland led the way in abolishing death taxes in the 1970s.

Sadly, competitive federalism has given way to co-operative federalism, where the states are pressured to enact identical laws where the Commonwealth has no power to simply write them itself.  Failing this, the Commonwealth has often been very successful in writing the laws anyway and receiving the blessing of a deferential High Court.

Reversing this wouldn't politicise the judiciary.  In fact, the court has always been political, going back to the earliest days of Federation.  In 1906, Prime Minister Alfred Deakin expanded the court from three judges to five.  The two new appointments were progressive politicians H.B. Higgins and Isaac Isaacs, who immediately formed a radical minority and set about attacking the federal structure of the Constitution.  This minority eventually became the majority, leading to the 1920 Engineers Case, where the concept of reserved state powers was swept aside.  This was the beginning of a sharp decline of the federal integrity of the Constitution.

Landmark cases include the Uniform Tax Cases in 1942 and 1957 that confirmed the Commonwealth could prohibit the states from collecting their own income taxes, leading to Australia's debilitating vertical fiscal imbalance.  The Tasmanian Dams case in 1983 dramatically widened the Commonwealth's external affairs power, enabling it to pass laws on any topic that was addressed in an international agreement.  The WorkChoices case in 2006 had the effect of centralising industrial relations power to Canberra, paving the way for Labor to pass its destructive Fair Work Act in 2009.

Of course, the government shouldn't appoint judges to secure particular policy outcomes.  However, it is not unreasonable to expect judges to recognise that while the Constitution does enumerate certain heads of power to the Commonwealth, these shouldn't be read so widely as to render the states as nothing more than mere underlings of the federal government.

Australian High Court jurisprudence is in a similar place to where the US was in the 1970s:  loose constitutional interpretation has produced a body of law that is overly deferential to the central government.  Things only improved in the US when the issue was taken seriously and its Senate — through a heavily scrutinised process — began appointing judges committed to interpreting the Constitution as it was originally intended.  Now all appointments by Republican administrations are expected to be first and foremost legal conservatives, ensuring originalism is represented throughout the judiciary.

It can happen here too, but only if the unaccountable, secretive and insular appointments process is opened to scrutiny.  The Right must form a strong counter-establishment in the legal community to challenge the status quo and promote federalists for judicial appointment.  To make judges more accountable, any nominee put forward by the Attorney-General should appear before parliament to explain what kind of judge they will be before joining the High Court.

Only by democratising the Australian judicial appointment process can we hope to push back 100 years of judicial activism and centralisation of federal-state relations.

A treaty with first Australians is divisive and dangerous

The concept of a treaty with Aboriginal and Torres Strait Islander peoples is illogical and divisive.  The current push for such a document is misguided, and should be abandoned.

It's difficult to think of another policy idea that has taken hold with so many people with so little thought.

Bill Shorten backed the idea on national television.  University academics have endorsed a treaty.  Newspapers have editorialised welcoming the concept.  The striking thing about the discussion is that there's so much of it but so little actual engagement with what it means that it has failed to grasp the fact that the most basic requirements for a treaty simply do not exist.

This is symbolism over substance at its absolute worst.  Promising better prospects for some of Australia's least well off without having any evidence that this proposal could achieve such a future is wicked.  But the idea of a treaty does not just hold out false hope.  It is also a highly divisive and dangerous idea.

You do not have to be an expert on the Vienna Convention on the Law of Treaties to understand that a government entering into a treaty with a group of its own citizens is legally nonsensical.  Treaties are legal documents entered into by two or more sovereign states.

Individuals or groups of individuals simply do not have capacity to enter into this form of legal arrangement.  Capacity is a legal term that many will be familiar with in the context of contract law.  It is the legal concept which dictates that children are unable to sign a valid contract.

But capacity also has application in the area of treaty law because only sovereign states can enter into treaties.  An individual may sign a treaty but only on behalf of a sovereign entity.

In the context of a potential treaty with Aboriginal and Torres Strait Islanders, there is no second sovereign state.  We are all Australians — indigenous and non-indigenous.

The only way the concept of a treaty makes any sense is if it is coupled with secession.  Although this part of the equation is not often talked about it was hinted at by an audience member when the Opposition Leader was on ABC's Q&A before the election.

An Aboriginal sovereign state is not an idea that will gain much traction in Australia.  Part of the reason for this is that Australians recognise that many of the problems faced by Aboriginal and Torres Strait Islanders have been caused by treating Australia's indigenous population as separate from the rest of us.  Rather than addressing Aboriginals as individuals, many policies have lumped them together and tried to apply one-size-fits-all solutions.  No idea is more offensive to our egalitarian instincts than dividing Australia according to race or ethnicity.

Even setting aside the sovereignty question for the sake of the argument gets us no closer to resolving all the problems associated with this ill-considered proposal.  Who speaks on behalf of Aboriginal people?  Even if such a person or a group of people could be identified it is still unclear whether a single treaty covering all indigenous Australians would be sufficient.

Before European settlement in Australia there were a large number of Aboriginal nations — perhaps as many as 700 — that occupied the land mass now known as Australia.  A not unreasonable question is whether separate treaties are required for each nation still in existence today.

These are the initial hurdles proponents must clear before we get to the central question at issue with any treaty:  what goes in it?

Much of the discussion about the content of a potential treaty has involved a ramping up of existing indigenous policy areas — land rights, self-determination, and language and cultural issues.  Apart from lacking any creativity, this approach fails to recognise that past policies have not achieved the outcomes they set out to.

Moreover, every policy area proposed as content to any treaty will be debated just as passionately as indigenous policies are debated today.  A treaty doesn't circumvent the democratic process.

Advocates for a treaty are attempting to solve a complex conceptual problem with an even more complex conceptual mechanism.  It's a recipe for failure.

As demonstrated here, a treaty makes no conceptual sense.  The very idea is legally unsound.  But there is an even more fundamental reason for abandoning the pursuit of a treaty:  it seeks to divide Australia.

Both a treaty and constitutional recognition of Aboriginal and Torres Strait Islanders will be rejected for the same reason:  they would entrench division, rather than seeking to unify us.  Policies that separate one group of Australians from another are not ideas that represent the country that Australia is and should continue to aspire to be.

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If you're worried about privacy, you should worry about the 2016 census

If you blinked, you missed it.  On December 18 last year, the Australia Bureau of Statistics announced that at the 2016 census in August it would, for the first time, retain all the names and addresses it has collected "to enable a richer and dynamic statistical picture of Australia".

Keeping names and addresses, we were quietly told, would enable government planners to do more rigorous studies of social trends.

It is only now that the significance of the ABS's change is spilling out into the press.

For the past 45 years, it has been the ABS's practice to destroy that identifying information as soon as all other information on the census forms is transcribed — first onto magnetic tape, and now into vast digital data banks that allow statisticians to slice and dice at their whim.

In the 2001 census, the government first offered Australians a choice as to whether they would like their name-identified information kept.  This year that opt-in system will be a compulsory system.  Your name will be kept whether you like it or not.

The risks to privacy are blindingly obvious.  The safest way to protect data is to not collect it at all.  The second safest way is destroy that data after collection.  There is no such thing as 100 per cent safely secured information.  We know this from bitter experience.  The last decade has seen a constant stream of unauthorised releases of apparently secure private information:  the 2015 Ashley Madison hack being just the most embarrassing of these.

After all, privacy risks don't only come from hackers and other rogues.  Government departments have a poor record of protecting information from their own staff.  The Department of Human Services admitted there were 63 episodes of unauthorised access to private files by its staff between July 2012 and March 2013.  The South Australian Police Force accuses up to 100 of its own members of unauthorised access to police files every single year.  ABS staff are no more or less virtuous than any other public employee.

The ABS argues that identification information will be stored safely and separately from the rest of the census data, creating a firewall that protects against individual identification.  A spokesperson told Radio National last week that the ABS "never has and never will release information that is personally identifiable".

There are a lot of unanswered questions here.  But no matter what firewalls the ABS places around access and matching, it is a truism that any data that can be used usefully can also be used illegitimately.

And of course, what are considered legitimate and illegitimate uses of data can change over time.  Rules written in 2016 could be changed in 2026.  The data collected now might be used in a very different way down the track.

Identification retention could have practical consequences as well.  A population that is rightly worried about the security of their information is less likely to answer the census either accurately or at all.  Indeed, this has historically been the ABS's big concern with keeping identification.  They told a parliamentary committee in 1998 that the reduction in data quality from a reluctance to answer questions truthfully was not worth the trade-off.

A lower quality census would lead to lower quality government statistics across the board.  A lot of things hang off the census.  Census data guides electoral redistributions, Commonwealth grants, education funding and so on.  Risking the integrity of all that in the hope that future data might be marginally more interesting to genealogical researchers and government planners seems like a terrible deal.

Although they profess to have changed their mind on the risk of lower quality data, we can speculate these concerns might be why the ABS announced the new policy in the dead holiday season.  The less publicity given to the change, the less likely Australians are going to hear enough about the new census rules to be worried about their privacy.

While the Coalition's support for traditional rights and freedoms has taken a battering over the past few years, overriding the ABS decision would go some way to reclaiming its liberal heritage.

After all, it was a Liberal Treasurer, Billy Snedden, who first mandated the destruction of names and addresses in census forms in 1971 in response to privacy concerns.  And Cabinet records show the Fraser government — at the behest of treasurer John Howard — unhesitatingly and immediately rejecting a 1979 proposal by the law reform commission to retain census names and addresses.

The digitisation of absolutely everything has made privacy one of the central problems of the 21st century.  If anything, Australians are more aware of the dangers of identity theft and information insecurity than they have been at any time in history.

As the ABS change shows, the debate over warrantless mandatory data retention was just the tip of the iceberg.

It is true that modern governments are data hungry.  Planners and regulators want more and more information about the populations they govern.

But to the extent we have an interest in protecting ourselves against government excesses, we have an interest in denying governments carte blanche to collect information.  We are not just data points in a planner's spreadsheet.  They work for us.

Repeal section 18C, the ''Andrew Bolt'' law: it stifles free speech

The freedom of speech debate is about to be reignited after a complaint this week demonstrated the ongoing danger of section 18C of the Racial Discrimination Act.

The case is an example of section 18C making day-to-day conversation unlawful, and dividing Australians rather than uniting them.

Cindy Prior, a Queensland University of Technology academic, has made a complaint against students and other staff at the university.  Her complaint is based on several comments made by the staff and students following her decision to eject students from an indigenous-only computer lab in 2013.

Prior has complained that the comments have caused her to suffer "offence, embarrassment, humiliation and psychiatric injury", and has made a claim for just under $250,000.

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.  The same was true of a case whose inauspicious five-year anniversary looms later this year.

Prior's complaint demonstrates the legal and cultural significance of the 2011 case against conservative columnist Andrew Bolt.  That case also used 18C as its legal basis.

Here's a refresher.  Section 18C makes it unlawful to "offend, insult, humiliate or intimidate" a person because of their "race, colour or national or ethnic origin".  Bolt was found in 2011 by the Federal Court of Australia to have breached 18C in writing two articles published in 2009 in the Herald Sun.

Most Australians had never heard of section 18C before the Bolt case.  Debate raged at the time the bill that included the provision was passed by parliament in 1995.  But between 1995 and 2011 section 18C was barely mentioned in the mainstream media.  Section 18C was the means by which several legal complaints were made in that period but it was only after 2011 that it became the serious issue of public contention that it is today.

The Bolt case launched 18C into mainstream Australian consciousness.  This has had two key effects.

First, it has become a major touchstone for a growing debate about freedom of speech in Australia.  Since the Bolt case in 2011 there has been a sustained campaign in favour of repealing 18C.  This campaign was partly born out of the deep concern about the provision being used to silence a prominent and well-respected columnist in a mature liberal democracy such as Australia.

But it also brought to the fore the idea that governments have passed laws which restrict this most fundamental human right, and that something must be done to turn back that tide.

Second, political activists and their lawyers have come to realise that section 18C can be used to aggressively pursue political goals.

The case against Bolt was not merely a group of offended individuals making a legal complaint in an effort to remedy personal loss.  It is possible that the complainants could have made out a defamation suit against Bolt.  But the case was pursued using 18C as a battering ram because of the negative perception that would be created by a breach of the Racial Discrimination Act.

Prior's complaint this week demonstrates that the reverberations created by the decision in the Bolt case are still being felt today.

Too often the law is being used opportunistically.  Section 18C is being used not as a shield but as a weapon.  In silencing, or threatening to silence, opponents in a debate using legal means, complainants remove the possibility of debate.  It's unhealthy and it's undemocratic.

At a time when we are in the midst of a debate about recognising Aboriginal and Torres Strait Islander peoples in the constitution a provision which prevents discussion of these issues should be of concern to all Australians.

Section 18C must be repealed.

Christmas carol ban is out of tune with society

Victoria's public schools are the frontline in the war on Christmas.

In an extraordinary decision of the Andrews government, Education Minister James Merlino issued a diktat to state government schools that has the effect of banning Christmas carols.

You may need to read that sentence one more time.

In an attempt to secularise public schools, a directive was issued last month to the principal of every Victorian public school.  These new rules restrict the way in which teachers, parents and volunteers talk about religious ideas in our state schools.  The most shocking aspect of the rules is that the teaching and singing of traditional Christmas carols will now be banished from the classroom.

"Praise music", defined as "any type of music that glorifies God or a particular religious figure or deity" will be banned from music classes beginning in January.  This is the last year parents will be allowed to volunteer their lunchtimes to teach kids Christmas carols for the end-of-year concert.

Most children aren't even aware there's a religious dimension to Christmas carols.  It's Christmas, and singing carols is just what people do.  Silent Night has taken on its own significance beyond anything that may be characterised by some government bureaucrat as "praise music".  Christmas carols now form a unique genre of music, and removing them from schools has the same effect banning any other genre of music would have;  it ignores an important part of the complex tapestry of musical history.

In fact, the motivation behind a ban on Christmas carols today is remarkably similar to that which parents and teachers of children growing up in the 1950s and 60s shared in relation to rock 'n' roll.  Sixty years ago, older generations worried Elvis Presley and Chuck Berry would lead a generation to juvenile delinquency.  Today, the concern is that Christmas carols may lead to alarming ideas about religion and the meaning of Christmas.  Christmas carols are the new subversive influence on youth that parents and teachers should be concerned about — a nonsense idea ironically given life by the fact the elite are attempting to ban them.

Of course, the government hasn't banned all Christmas carols, just those that refer to God.  So while drab, contemporary Christmas songs such as Rudolph the Red-Nosed Reindeer will be spared, the traditional carols — those that drip with a rich Christmas spirit — such as Once in Royal David's City, Hark!  The Herald Angels Sing and O Come, All Ye Faithful are verboten in Victorian public schools.

But it's far bigger than all that.  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.

The inflammatory decision of the Andrews government to ban Christmas carols in Victoria's public schools must be reversed immediately.  Former Victorian attorney-general Robert Clark is to be congratulated for taking a stand on the issue.  In parliament Clark called on the government to "withdraw this appalling edict and make clear that students at government schools are entitled to learn, sing and enjoy Christmas carols as they have for generations".  In the meantime, and while I'm still able to say it — merry Christmas!

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Death by a thousand cuts for our liberties

Next Monday, June 15, marks the 800th anniversary of King John's signing of the Magna Carta in 1215.  As we near this milestone it is a good time to reflect on one of the ideas this foundational document engendered — the rule of law.

It's often a concept taken for granted in liberal democracies.  But an honest appraisal of the contemporary political and legal landscape in Australia demonstrates that we have strayed far from the principles that have evolved over the course of 800 years of English common law.

Just last week, the Australian Securities & Investments Commission chief told a Senate committee he wanted to ­investigate and prosecute companies for having "poor corporate culture".

Such a proposal is a parliamentary counsel's nightmare.  Drafting a law that captures the complexity of workplace ­culture and turns it into a clear legal obligation is an impossible task.

The more likely outcome is a series of ambiguous words with vague definitions that give rise to discretionary power over ­company directors and senior managers.  And wherever there is discretion in the law it becomes impossible to understand one's legal obligations.

Anyone should be able to go to the statute books, or read through legal decisions, and understand what is required of them under the law.

Arbitrary power is the enemy of the rule of law.  But successive governments are falling over themselves to inject more uncertainty into our legal system, and to do away with bedrock principles of liberal democracy.

One of the most important reforms that came from the signing of the Magna Carta was the creation of the "common counsel", which decided whether taxes could be imposed.  It would later lead to the principle that parliament has the power of the purse.

The former Gillard government turned this idea on its head when it shepherded through the parliament the Financial Framework Legislation Amendment Bill (No 3) 2012.  This law handed to the executive the power to make grants in more than 400 areas of public policy.  At the time it was ­described by University of Sydney law ­professor Anne Twomey as an "act of hara kiri".

In December last year, I released a report into the state of fundamental legal rights in Australia.  That report revealed that 262 provisions in current commonwealth acts of parliament breached one of four legal rights:  the presumption of innocence, the right to silence, the privilege against self-incrimination or the principles of natural justice.

This disregard for the rule of law is not an exclusive problem of the commonwealth.  Recent decisions of various state governments have also sounded the alarm on the state of the rule of law in ­Australia.

In April this year, the High Court ruled that the NSW Independent Commission Against Corruption had acted outside its powers in the investigation of a case that properly fell outside its jurisdiction.

The response of the NSW government has been to enact a law that retrospectively grants ICAC more power to effectively annul the decision of the judiciary.

Time will tell whether such a clear breach of the rule of law will hold up against legal challenge.

The Victorian government also considered passing special legislation to avoid paying compensation due to the East West Link consortia.

Meanwhile, the Western Australian government has passed a piece of legislation that ends litigation still before the courts, strips the right to appeal, and ­ensures a financial windfall to the government.

It is clear that our liberties won't disappear overnight.  But recent decisions of government at the state and federal level show that it's a death by a thousand cuts we need to be vigilant about avoiding.  This protracted and constant erosion of our rights must end.

And with the celebration of the 800th anniversary of one of the greatest symbols of freedom from oppression, what better time to start than right now.

ASIC's sad plans to investigate companies for ''bad culture''

At a time when Australia is in desperate need of investment, Australia's corporate regulator is demonstrating contempt for the rule of law.

On Wednesday, Greg Medcraft, chairman of the Australian Securities and Investments Commission, told a Senate Estimates Committee that ASIC is considering prosecuting companies for poor corporate culture.

This is the latest example of fuzzy law that gives enormous power to regulators and leaves individuals in a position where they don't know whether they are legally compliant.

Paragraph 12.3(2)(d) of the Commonwealth Criminal Code allows a judge to consider whether corporate culture contributed to the "authorisation or permission" of the commission of a criminal act.

This provision violates a basic tenet of the rule of law and ought to be repealed.  No definition of bad corporate culture can effectively capture the concept because it's a subjective idea.  The vagueness in the law allows ASIC to wield considerable power over Australian corporations.  And the appointment of the executive director of the St James Ethics Centre will do nothing to allay fears about ASIC embracing an incoherent approach to corporate governance.

Ambiguity is anathema to black-letter law.  Shunning clear legal obligations for aspirational cultural objectives is not the hallmark of a system based on the rule of law.

Prosecutions for "bad" corporate culture also raise concerning liability issues.

One of the stranger analogies heard in Senate Estimates this week was this one from Medcraft:  "When an employee breaches the law ... and culture is responsible, then not just the employee, not just the fruit, but also the tree, which is the officers and the company, should also be responsible."

It's a troublingly anti-individualist sentiment.  You would be forgiven for thinking that Medcraft is suggesting that parents who raise their children in less than ideal settings should be held liable for the criminal behaviour of those children.  After all, that seems to be a far more appropriate application for the fruit and tree analogy.

But even in the corporate world such a concept makes no sense.  A criminal justice system must be based on the idea that individuals make choices about their own behaviour.  That's not to say that individuals can't work together to achieve goals — both productive and destructive.  But our legal system relies on the reasonable assumption that human beings have free will and are held to account for their actions.  If a company employee commits a crime, that individual is responsible, not his manager or some distant company director.

There is sound logic to such an approach.  But Medcraft's proposal to prosecute companies for "bad" culture is not just a misapplication of basic concepts of valid reasoning, it also runs completely counter to the rule of law.

If ASIC is genuinely interested in rooting out bad corporate culture it should first get its own house in order.  For too long the corporate regulator has ignored the rule of law and argued for increased power over the productive elements of the Australian economy.

One of the most essential features of an economy that attracts investment is a legal and political structure based firmly on the rule of law.  A significant contributing factor to the future growth of Australia's economy will be the reliability of our laws and the consistency with which government agencies apply them.  In this regard, ASIC is doing us all a significant disservice.

Is the looming internet filter justified? Not yet

Is intellectual property "property"?  Kinda.  Sorta.  Not really.

That question might seem a bit abstract, on par with how-many-angels-can-fit-on-the-head-of-a-pin.  But it matters.  Because how Parliament sees the fundamental nature of one form of intellectual property — copyright — is almost certainly going to determine whether we are subjected to a new internet filter.

A bill now before Parliament, the Copyright Amendment (Online Infringement) Bill 2015, would give courts power to require internet providers block access to foreign websites whose dominant purpose is to facilitate copyright infringement.

In practice this means that Time Warner, which owns the copyright to Game of Thrones, could go to a judge and demand Telstra or iiNet block access to the Pirate Bay.

There are lots of problems with this bill.  Its language is absurdly vague and broad.  What counts as "facilitating" copyright infringement?  Maybe it would block sites that offer virtual private networks, perhaps — those VPNs that Malcolm Turnbull has been encouraging us all to use.

But these are legislative technicalities.  More importantly, blocking websites is censorship.  The bill is an internet filter, no matter how stridently the Abbott Government rejects the comparison.

Supporters of the bill argue that technicalities and censorship aside, the real issue is that property is being stolen, and the Government — whose job it is to protect property — needs to act.  After all, private property is a human right as much as free speech is.  (Check out Article 17 of the Universal Declaration of Human Rights.)

It is true that intellectual property shares some of the characteristics of property.  Like tangible property, intellectual property can be owned.  It can be traded.  So it's property in those senses.

But, unlike tangible property, the use of intellectual property is not exclusive.  When one person listens to a song or watches a movie they do not prevent others from doing so.  It can't be "stolen" in anything but a metaphorical sense.

This is why the law hasn't treated intellectual property like real property.  We don't have a moral right to perpetual ownership and unimpeded exclusive control over the songs we write or movies we produce.  For instance, copyright lasts 70 years after the death of the creator.  Real property has no such time limits.

The scholar Tom W. Bell says that intellectual property would be better called intellectual privilege.  This privilege is conferred for a specific purpose — to provide an incentive for the creation of new works.  The theory is if we don't confer that privilege people will supply less creative work than is socially desirable.

But that privilege has costs.  For instance, copyright also stops us from using our other, real property as we see fit — we can't use our computers, printing presses or internet connections as we would like.  And we can't build on the cultural capital created by others.

Thus the Howard government's Ergas Report into Intellectual Property and Competition Policy argued that "over-compensating rights owners is as harmful, and perhaps even more harmful, than under-compensating them".

So will the proposed Copyright Amendment (Online Infringement) Bill 2015 inspire the creation of new works?  Even if placing a block on the Pirate Bay successfully stops internet piracy (please bear with me on this fantastic hypothetical) will artists go out and create more art as a result?  And would enough new work be created to compensate for the restriction on free speech?

Many economists theorise about an "optimal" level of copyright protection — a sweet spot of enforcement and rules where the benefits of copyright are maximised and the costs are minimised.

Yet it is very hard to figure out where that sweet spot is.  Even impossible.  And the political system isn't looking for the optimal policy — it's looking for the most politically palatable policy, the one where the benefits are being maximised for politicians, not consumers.

In the United States, every time Mickey Mouse threatens to fall into the public domain the Walt Disney Company lobbies hard to extend copyright term limits.  Nobody really thinks that maintaining Disney's exclusive rights over Mickey for another decade or two will lead to more creative works being produced.  But these are decisions made by politicians, not blackboard economists, so the extensions get granted.

The Australian Parliament has been considering copyright enforcement changes since last year.  We've heard a lot of pontificating about "theft" and digital access and global release dates.

But the only policy question is whether website blocking would inspire the creation of enough new content to make up for the fact that the Government is censoring the internet.

And, so far, nobody has shown that would be the case.

Mike Baird should abolish the ICAC

The NSW Independent Commission Against Corruption is Australia's biggest kangaroo court.  It is adept at taking down political figures who fail to declare bottles of wine on the pecuniary interests register.  But it is comparatively incompetent at uncovering cases of serious corruption.  This is despite the fact ICAC is given coercive powers and routinely flouts the rule of law.

ICAC should be abolished.

This week, ICAC released a statement in response to the decision handed down by the High Court of Australia.  The case hadn't gone ICAC's way and it lashed out at the highest court in the land, demanding retrospective laws to effectively reverse the court's decision.

The crux of the decision was an interpretation of section 8 of the Independent Commission Against Corruption Act 1988, which defines corrupt conduct.  The provision is couched in broad terms and includes a lengthy list of matters that the corrupt conduct could "involve".

Deputy Crown Prosecutor Margaret Cunneen was investigated by ICAC for an incident in late 2014, where Cunneen allegedly counselled her son's girlfriend on how to avoid taking a breath test.

Cunneen sought a declaration in the NSW courts that ICAC did not have the power to conduct an inquiry, as her actions did not amount to "corrupt conduct" under the ICAC Act.

The High Court agreed, finding that the definition of corrupt conduct does not extend to conduct that merely affects the efficacy of the exercise of an official function by a public official.

It is worth pointing out that the High Court was merely interpreting the legislation that gives ICAC its power to conduct investigations into alleged corrupt conduct.

ICAC is a statutory authority and it is limited by the terms of the legislation which authorises its creation.

The statement released by ICAC on Monday reveals a deep malaise within the organisation.

For too long the commission has operated with extraordinary and coercive powers.  ICAC runs roughshod over some of our most deeply held legal rights.

ICAC is given the power to extinguish the right to silence by forcing witnesses to answer questions or produce documents under section 24, and it is given the authority to override the privilege against self-incrimination under section 26.

Perhaps the coercive powers bestowed upon the commission have helped to shape a culture within the organisation that makes the individuals within it feel they are above the law.  Perhaps it's the belief they're going after the bad guys.

Whatever the reason, the demand for retrospective legislation is a shameful attempt to smash the pillars of justice that support our legal system.  ICAC has taken it up on itself to revisit 800 years of English common law.

Apparently the giants of the common law such as jurist and judge Sir William Blackstone, leading constitutional theorist AV Dicey, and barrister and judge Sir Edward Coke got it wrong.

Government agencies aren't created by parliament so they can turn around and lobby the parliament for more power.  ICAC should always have been operating within the limits of the law rather than skirting the line only to be reined in by the High Court.

Not only should Premier Mike Baird and the NSW government ignore ICAC's desperate and illegitimate demand to increase its own powers, they should hear the alarm bells and abolish the commission entirely.

New bullying watchdog takes nanny state too far

Two weeks ago a new bill was passed into law that gives a government bureaucrat the power to force children to apologise to one another.

The new powers are part of an attempt by the Abbott government to tackle the very real problem of cyber-bullying.  But the idea that it is the role of government to compel a child to say "I'm sorry" to another child is one of the most disturbing ideas this parliament has debated.

The extraordinary powers of the Children's e-Safety Commissioner are the latest example of the role that the state has acquired for itself in matters that rightly belong in the realm of civil society.  In the case of the new cyber-bullying regulator, the state has inserted itself into the relationships between children and between parent and child.

At the heart of the cyber-bullying regime is a power to censor social media content that is "seriously threatening, seriously intimidating, seriously harassing or seriously humiliating" of an Australian child.  These vague terms allow for subjective interpretations and the chequered application of the law.

Part 3 of the act outlines the complaints procedure, during which an investigation can take place.  In conducting an investigation, the Children's e-Safety Commissioner can compel the production of documents and conduct oral examinations.  Such powers remove the right to silence.

Part 4 contains the primary censorship power.  Under this part, if a complaint is made out the commissioner may order the removal of the offending content from the social media service.  Freedom of speech is as important for children as it is for adults and this new regime is an attack on that fundamental civil liberty.

Section 42 of the Enhancing Online Safety for Children Act 2015 is incredibly dangerous.  The new commissioner can serve a notice requiring that the offender "apologise to the child ... for posting the material;  and do so in the manner, and within the period, specified in the notice".

Parents tell children to say sorry.  Teachers tell children to say sorry.  But a government acquiring this role for itself moves down a path where children are becoming wards of the state.  This is the velvet gloved hand of the state manipulating parents and children who — so the argument goes — would be helpless without government intervention.

This is utter nonsense.  Cyber-bullying is already being dealt with by parents, teachers, principals and schools, in conjunction with software companies and NGOs.  The vast majority of primary and secondary schools have developed detailed codes of conduct and practices to combat cyber-bullying.  The Catholic Education Office Sydney, for instance, has a detailed anti-bullying policy which is implemented in Catholic schools across NSW.  And the best thing about the approach being taken by schools is that cyber-bullying is being tackled within the framework of a broader focus on bullying in its totality.

I released a report into cyber-bullying entitled "A social problem, not a technological problem".  My research found that cyber-bullying is a subset of bullying, and that children who are cyber-bullied are also the victims of traditional forms of bullying.

The new Children's e-Safety Commissioner will undermine the vital bonds of the family and restrict the free speech of children.  Bullying is a significant problem deserving of a serious response.  But that response should come from parents, children and teachers, not a government bureaucrat.

Why it's OK to strip foreign fighters of citizenship

Citizenship is one of the central ideas of political philosophy.  But not one most people spend a lot of time thinking about.

The Abbott Government proposes to strip Australian citizenship from dual nationals who fight for Islamic State.  (This would only apply to dual citizens as there is a strong presumption in international relations against making anybody stateless.)

And there is legislation before Parliament that would make it harder for children who have lived in Australia for 10 years to automatically qualify for citizenship.

Announcing the citizenship amendments, Parliamentary Secretary to the Minister for Communications Paul Fletcher told Parliament that, "Australian citizenship involves a commitment to this country and its people.  It is a privilege which should not be taken lightly."

Yet beyond fuzzy little nostrums about "membership" and "belonging" it's not obvious what citizenship actually means.

What principles would allow us to judge whether such legislative changes are good or bad?  Is citizenship a right or a privilege?  Who should be a citizen?  But most importantly, why?

Some countries give citizenship automatically to anybody born on their soil.  Australia doesn't.  Here you need an Australian parent too.

The word "citizenship" is absent from the Australian constitution, save an incidental, negative mention in the prohibition on foreign citizens from serving in parliament.

Legally, citizenship is an odd beast.  Citizenship is neither necessary nor sufficient for many of the most important Australian rights and privileges.

Citizenship doesn't give you an absolute right to vote.  Underage citizens can't vote, and neither can citizens who are serving a prison sentence of three or more years.

Citizenship isn't the criteria for enjoying welfare and publicly funded health.  They are protected by our laws.  Non-citizens pay taxes and have access to our courts.  Permanent residents can buy property.

Non-citizens enjoy our version of free speech — the right to political communication — and the freedom to lobby and protest.

A Senate committee roundtable last week batted around the pros and cons of putting citizenship in the Australian Constitution.  (I was one of the participants.)

The idea is that this would offer the High Court some clarity when deciding cases that concern questions of who is and isn't a citizen for legal purposes.

But if we're not clear what citizenship is, then why trust the High Court to decide?

At Federation, Australian "citizenship" was based on whether you were a British subject.  However, this worldly and cosmopolitan idea co-existed clumsily with the other, racist idea of Australianness that was manifest in the White Australia Policy.

Putting anything that reflected that idea of citizenship in the constitution would have been a disaster.

While there exists a thing called citizenship in Australian law, citizenship is really a philosophical concept not a legal one.  And it is a fuzzy concept because the idea of group membership is a fuzzy concept.

Yet, for all that fuzziness, it is central to our notions of identity and politics.

The whole point of citizenship is that it is exclusionary — it is a unique national identity, one that confers specific rights and privileges.

To adopt a nationality is not to join just any old community.  At citizenship ceremonies, new citizens transfer their identity and allegiance from the old country to their new one.

Dual citizenship sits awkwardly with even the most modern ideas of citizenship.

One argument for dual citizenship is that formally offering it is something we sell to potential migrants, making Australia an attractive destination for foreigners.

A more powerful argument is that dual citizenship is simply inevitable.  Children born to parents with different nationalities automatically receive the citizenship of both.  And we have no way of forcing other countries to strip the nationalities of those who become Australians.  We live in a complex, globalised world, etc.

Dual nationals who go to fight for the Islamic State are effectively renouncing their Australian citizenship.  Many dispose of their passports when they get to Iraq and Syria.  It would be hard to imagine a more thorough rejection of democratic values — the values that citizenship is supposed to represent — than going to wage war for a theocratic slave state.

Surely, if we were willing to deny people citizenship because they failed a trivia quiz about Don Bradman, then fighting for Islamic State is also a reasonable disqualification.

Some experts say that giving the government the power to revoke citizenship status from dual citizens makes the very idea of citizenship less valuable.  Citizenship is meaningless if it can be taken away.

But this argument confuses the legal concept of citizenship — a contingent and not particularly coherent bundle of privileges and rights — with the deeper philosophical one.

At a philosophical level, dual citizenship is a lesser form of citizenship, as it represents a less than absolute allegiance and national identity.

And just as importantly, if citizenship is most valuable as a bond between members of a political community, then treating the citizenship of those who reject the community as inviolate undermines that bond.

Fuzzy nostrums sometimes matter.  And if citizenship is to matter it has to mean something.

The Government can revive its ''freedom agenda''

The promise to repeal or reform Section 18C of the Racial Discrimination Act may have been shelved, but it is not too late for the Government to revive its "freedom agenda".

In opposition Tony Abbott and George Brandis made much of their commitment to freedom, arguing that the Liberal Party was "freedom's bulwark".

Unfortunately, this agenda is looking a little sad after they dropped the 18C promise, not to mention all the other stuff that's happened in the last six months.

Yet one of the less heralded parts of the freedom agenda could set up a program of serious liberty-focused reform.

Sometimes the most important reforms are those that are done slowly and quietly.

In the first few months of the Abbott Government, Brandis asked the Australian Law Reform Commission to inquire into Commonwealth laws that encroach on what he described as "traditional rights and freedoms".  The ALRC produced an issues paper and a request for submissions in December.

The genesis of this inquiry is significant.

It was born in the contest over the Gillard government's Human Rights and Anti-Discrimination Bill 2012.  Remember that?  This was the bill that would have made it unlawful to offend someone on the basis of their political opinion in the workplace.

The 2012 bill wasn't really a "human rights" bill at all, as I argued on The Drum at the time — it was a consolidation of existing anti-discrimination law, symbolic of the capture of almost all human rights discourse by anti-discrimination.

The irony was that the bill was itself the remnant of Kevin Rudd's grandiose dreams of a statutory bill of rights for Australia, yet it restricted human rights in some very important ways.  For instance, it placed the burden of proof on the person accused of discrimination, and restricted the right to legal representation.

This correctly got Brandis and the Coalition fired up about Labor's hostility to traditional legal protections.

For Brandis, and consequently for the ALRC, what constitutes "traditional rights and freedoms" is extraordinarily broad.

It includes things like freedom of speech, religion, association, and movement.  Property rights are in there for good measure.

Then there are rights we exercise in the course of legal proceedings:  the right to a fair trial, the right to appeal, the privilege against self-incrimination, and procedural fairness.

To top it off the ALRC is looking at broader governance principles like limiting the delegation of executive power to bureaucracies or regulators and maintaining judicial review of legislation.

This is a pretty comprehensive set of the tenets of liberal governance.  The ALRC is going to find it very hard to do justice to just a small fraction of its inquiry.

But, on the other hand, it's hard to imagine a more important inquiry for this Government, or any government, to pursue:  a serious audit of the state of Australian law.

Debates like those over section 18C and the Human Rights and Anti-Discrimination Bill come and go, but Australia's legal framework is the accumulation of decades of legislative busy-work.  We look at laws individually as they are introduced or reformed but rarely do we step back to survey the full legal landscape.

We're all familiar with commissions of audit for government spending.  Wouldn't it be nice to have periodic audits of our liberties?

In December I released a report into just one facet of the ALRC's traditional rights and freedoms:  the rights that protect us while interacting with the legal system.

I looked specifically at the right to silence, the presumption of innocence, the privilege against self-incrimination and what's called "natural justice" — which constitutes things like the right to a trial, to appeal, to know what is alleged against us.

I found an astounding 262 provisions in Commonwealth law alone that breach these legal rights.  Everything from the Telecommunications Act to the Agricultural and Veterinary Chemicals Code Act in one way or another abrogates these basic legal principles.  The labyrinth Fair Work Act violates all four.  So does the Competition and Consumer Act.

I suggest these breaches of principle have been increasing in recent decades.  If so, they've been increasing alongside the more general increase in legislative activity since the 1970s — governments are passing more, and longer, legislation than ever before.

Brandis asked the ALRC to look particularly into rights breaches within commercial and corporate regulation, environmental regulation and workplace relations law.

Breaches of fundamental legal rights in these sorts of acts tend to be ignored by Australia's human rights community.

Indeed, the scope of the ALRC inquiry reveals how myopic and narrow the Australian Human Rights Commission has been, which appears to focus almost exclusively on anti-discrimination.

Things like the extraordinary powers granted to the Australian Securities and Investments Commission seem to be outside their frame of reference.

The people whose rights are violated by ASIC tend to be business types:  managers, board members and executives.

That is, unsympathetic capitalists.

But, as the ALRC will hopefully conclude, even capitalists deserve attention for their traditional rights and freedoms too.

Company directors lose out in attack on legal rights

Fundamental legal rights in Australia have been eroded by successive governments of every political stripe.

This is the concerning story told by new research, which has uncovered 262 provisions that reverse the burden of proof or abrogate the right to silence, privilege against self-incrimination and the basic principles of natural justice.

But our analysis reveals an even more troubling issue:  that specific groups have been singled out for discriminatory treatment.  A comparison between companies and their directors and agents, and unions and their officers and agents showed dramatically differential treatment.

No less than 48 provisions remove the legal rights of company directors, while just three remove the rights of union officials.  Eighteen legal rights breaches apply to both groups.

The odds are stacked so heavily against company directors that one wonders why anyone would choose to be one in 2014.

In many cases, the right to silence is removed and company directors are held to be vicariously liable for the conduct of company employees.

For example, section 1316A of the Corporations Act 2001 provides that a corporation is not excused from providing information even where that information may tend to incriminate the corporation.  Under section 769B of the Corporations Act 2001, a company director may be held liable for the conduct of company employees.

This is an appalling state of affairs for a country whose legal system is ostensibly based on the rule of law.

One of the reasons for the uneven treatment of company directors is that areas of law that affect them are affected most heavily.

Laws in the areas of tax, finance, trade, commerce, employment, and the environment have become special targets for the erosion of legal rights.  There are 33 breaches in tax and finance law, compared with just six in the area of government and administration.

The raw numbers are appalling.

We've discovered 48 provisions that reverse the burden of proof.  These laws overturn the idea that a defendant is innocent until proven guilty.  The idea that the burden of proving a case is placed on the party bringing a claim to the court is as old as our English common law system.  For hundreds of years this has been a key protection of liberty.

Provisions that reverse the onus of proof hold defendants to difficult — sometimes impossible — standards in order to demonstrate they are not in the wrong.

There are also 92 laws that place limits on natural justice.  These laws remove basic legal rights to a fair hearing, to an unbiased judge and to appeal.  They are a violation of the separation of powers.

The legislature cannot dictate the role of the judicature, one important aspect of which is to apply the law created by the parliament.

There are 122 laws that remove the right to silence and the privilege against self-incrimination.  Perhaps the most rudimentary legal right of all is the right to silence.  Over hundreds of years, the common law has protected the right of defendants to remain silent, especially in the name of self-preservation.  Parliament should never seek to remove it.

Australia does not have extensive constitutional protections for legal rights such as those that exist in other countries.  The United States Constitution, for example, provides explicit protection for several legal rights, particularly in the case of criminal investigations and trials.

In Australia it's largely left to the parliament to defend our legal rights and safeguard our liberty.  This is not cause for despair, however — quite the opposite.  This provides the parliament with a significant opportunity.

The Abbott government must launch an ambitious reform agenda in this area.  The parlous state of fundamental legal rights presents Attorney-General George Brandis with an issue where he can make his name.  And the groundwork has already been laid.

The Australian Law Reform Commission's Freedoms Inquiry is a good start.  If Brandis is successful in making significant gains he will be one of the great reforming attorneys-general.  My research shows him the way.

George Brandis's solution a cure worse than the disease

In 1776 Thomas Paine wrote:  "For as in absolute governments the king is law, so in free countries the law ought to be king;  and there ought to be no other".

Australians are the fortunate inheritors of this legal tradition.  Founded on the basic principles of the rule of law, our legal system slowly evolved over hundreds of years in England — predominantly as a reaction to the absolute power of monarchs.  And right at the heart of rule of law is the rejection of arbitrary power.

Yet last week Attorney-General Senator George Brandis made a bad law worse by giving himself subjective power to determine whether individual journalists accused of breaching a new criminal law which restricts free speech will face prosecution.

Section 35P of the National Security Legislation Amendment Act (No. 1) 2014 establishes the criminal offence of "unauthorised disclosure of information".  Disclosures attracting criminal liability are those that relate to any "special intelligence operation" conducted by the Australian Security Intelligence Organisation.  The penalty for breaching this new law is five years' imprisonment.

Section 35P is a clear and unjustified limitation on the human right to freedom of speech.  It punishes anyone who publishes information about SIOs.  There is a significant level of ambiguity around what ASIO activities can be granted SIO status and once an SIO has been granted it remains in place forever.

Recently, the debate has centred on the impact that this provision is likely to have on journalists.  The concern is that section 35P puts this particular category of people at a higher level of risk than many others due to the nature of their work.  There is no doubt this is true.  Reporting on the activities of our national security agencies has just become a far more hazardous pursuit.

Many have pointed out this flaw in the legislation.  Foreign affairs editor at this paper, Greg Sheridan, is scathing:  "Section 35P of the National Security Legislation Amendment Bill is a terrible piece of legislation that fundamentally alters the balance of power between the media and the government.  In doing this, it seriously weakens our democracy and will ultimately weaken, in quite practical ways, our security."

Of course, journalists are not the only ones affected by the legislation.  Anyone can fall foul of section 35P.  But that has been the overwhelming focus of the current discussion.  Senator Brandis is clearly feeling the pressure and has grasped at a solution.

Last week, the attorney-general acknowledged the concern that section 35P could be used to gag journalists and announced that "no such prosecution could occur without the consent of the attorney-general of the day."

Senator Brandis' solution to the section 35P problem is quite explicitly political.  The attorney-general is seeking to transform a legal decision into a political one.  The rationale is that prosecuting journalists is an unpopular proposition in liberal democracies like ours.  So if an elected politician has to sign off on the prosecution it is unlikely ever to occur.

This is quite an extraordinary decision by the attorney-general.  It is a deeply flawed solution to a very dangerous law.  It infuses an already hopelessly vague law with further uncertainty.

Discretion lies at the heart of Senator Brandis' resolution.  He has established a system whereby attorneys-general must exercise their own personal judgment in cases where journalists would be accused of breaking the law.  This is an unambiguous challenge to the rule of law.

The English jurist AV Dicey, in his work The Law of the Constitution, directly contrasts the rule of law with discretionary power.  Giving arbitrary decision-making power to an individual allows for personal biases to dictate legal outcomes.  Discretion undermines the certainty and predictability of a legal system built on the rule of law, and it undermines the idea that everyone is equal before the law.

There are also a number of practical problems.  An attorney-general reviewing a potential prosecution under section 35P will have a number of political issues to consider.  Particular problems arise in cases where a journalist has uncovered ASIO wrongdoing.  The political calculation might lead an attorney-general to agree to proceed with a prosecution in the hope of discrediting the journalist and escaping the potentially more significant fallout from such disclosure.

In a 2007 paper on prosecutorial discretion, Nathan Piwowarski pointed out that electoral accountability often translates poorly into accountability for discrete decisions.  This is because elected officials make countless decisions, only some of which capture the public's attention, and the public will reward populist decisions as opposed to those that are legally sound.

Section 35P erodes liberal democratic principles.  But Senator Brandis' proposed solution is a cure worse than the disease.  This is a problem of the parliament's making, and it's up to parliament to find a solution.  The most elegant answer is obvious — repeal section 35P.

Innocence has been lost

The federal Opposition Leader was asked in a press conference this week whether he supports proposed laws that could send journalists to prison for publishing information about intelligence operations.

Bill Shorten's response was intriguing:  "We fundamentally believe in the liberty of the press and the freedom of the press.  Labor's very mindful of making sure we maintain the freedom of the press."

Stirring stuff.  But where was this commitment to liberty when the Gillard government proposed its massive media regulation regime in March 2013?

Shadow attorney-general Mark Dreyfus also raised concerns this week that the Abbott government may require Australians returning from Iraq and Syria to prove they are not involved in terrorism.  Dreyfus said the opposition was "not going to give a blank cheque [to the government], in particular to something which has been suggested to be a reverse onus of proof."

Again, this is commendable.  But this sentiment was nowhere to be found when the previous Labor government legislated to force timber importers to have knowledge of foreign laws and to prove legality of materials manufactured by third parties under the Illegal Logging Prohibition Act 2012.  Or when it tried to pass laws that would have made employers in discrimination cases guilty until they could prove their own innocence.

PLAYING FAIR WITH BUSINESS

If only Labor were as committed to the presumption of innocence for business owners as it is for those accused of committing acts of terror.

There are more than 40 Commonwealth provisions that reverse the onus of proof.  Governments of every political stripe are guilty of abandoning the presumption of innocence for political expediency.  The Rudd-Gillard governments were no different in this regard.  For instance, they included provisions which reversed the onus of proof in the Fair Work Act 2009, the Tobacco Plain Packaging Act 2011, the Work Health and Safety Act 2011, the Clean Energy Act 2012, and the Illegal Logging Prohibition Act 2012.

Labor's apparent change of heart on fundamental legal principles is welcome.  So, too, fresh commitment to a free media.

But just over twelve months ago, the then-Gillard government launched an unprecedented attack on the media.  The proposed introduction of a de facto press licensing regime would have handed a government-appointed bureaucrat massive censorship powers, and stifled press freedom in Australia.  The Orwellian title given to the media regulator was the "Public Interest Media Advocate" (PIMA).

This individual would have been tasked with deciding whether news media outlets were being fair or accurate, or whether coverage was in line with community standards.  And it would have been up to the PIMA to decide what those vague terms were to mean.

The package of bills put up by the government was a brazen attempt to control the media, particularly news outlets hostile to the government's policy agenda.  It was eventually abandoned — not because it acknowledged the essential role of the free press but because it didn't have the numbers to pass the bills.

Labor also looks to be having a crisis of conscience over the controversial mandatory data retention policy.

Nicola Roxon championed the idea as Labor's attorney-general in 2012 but now the opposition seems lukewarm on the idea.  Dreyfus has expressed concerns about the regime.

It's good to see Labor's conversion on matters of principle in opposition.

If only they were as committed to these ideas while in government.  Australia inherited the British common law tradition.  It is a legal system characterised by the rule of law and a number of fundamental legal rights.  The presumption of innocence is arguably most important.

The idea is simple — an individual is innocent until the person accusing them of wrongdoing has made out their case in court.  The presumption of innocence and the onus of proof resting with the party bringing a claim to the court are two sides of the same coin.  If the onus of proof is reversed, the defendant is effectively deemed guilty until he can prove his own innocence.  Some of the most important civil liberties and fundamental legal rights are finally getting the respect they deserve from a party that ignored them during six years in government.  What a difference opposition makes.

Mandatory sentencing: a king hit for courts

You can smell the air of an election in Victoria.  On Sunday the Napthine Government announced it wants 10-year mandatory minimum sentences for "one-punch" killers.

The Labor Opposition retorted that it would prefer a new offense of death by assault that would offer up to 20 years in prison.

Obviously the November election is going to be a standard law-and-order auction.

At least when New South Wales introduced its mandatory minimum sentences for one-punch laws in January it did so in response to a massive media-driven moral panic about alcohol-fuelled violence.

Let's be clear.  One-punch killers deserve the maximum possible penalty that is proportionate to the crime that has been committed.

But mandatory minimum sentences have a special place in the tough-on-crime pantheon — there is almost uniform intellectual agreement that they are a bad idea.

The title of one 2009 survey on the evidence about mandatory minimums led with its conclusions:  The Mostly Unintended Effects of Mandatory Penalties:  Two Centuries of Consistent Findings.  It argued "the decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones."

Opposition to mandatory minimum sentences isn't a left-right thing.  In 2000 the conservative Samuel Griffiths Society published a paper describing mandatory sentences as a "tragedy", "unjust", and violating the "fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime."

So why?  The purpose of mandatory minimums is to reduce the discretion judges have in determining sentences, replacing that discretion with a bright-line rule determined by the legislature.

The idea is that judges tend to be soft on criminals, apparently giving lower sentences than the public would like.  So the legislature has to step in.  Furthermore, imposing a mandatory minimum sends a message:  this is an especially serious crime.

But removing judicial discretion in the sentencing process can lead to serious miscarriages of justice — forcing judges to give disproportionately tough sentences when the circumstances may demand more leniency.

Nor, as the 2009 survey cited above makes clear, is there any consensus that mandatory minimums have particularly powerful deterrence effects — at least no more so than discretionary sentencing.

And rather than imposing parliamentary control over sentencing decisions, mandatory minimums shift discretion from judges to prosecutors.

This latter point is the most important.  Mandatory sentences aren't mandatory, in any real way.  Every criminal system, by its nature, has to involve a great deal of discretion.

Under a system with mandatory minimums, the key issue becomes what the prosecutor intends to charge — the charge with the mandatory sentence, or some other collection of charges?  That decision encourages prosecutors and accused criminals to bargain about what charges will be bought and what facts will be admitted before any trial takes place.  This is particularly prominent in the United States where mandatory minimums are extremely common.  Suspects and prosecutors engage in a game of arbitrage, negotiating around the suite of potential charges.

As one Australian paper argued, mandatory sentences "make pre-trial decisions the key to the outcome of a case".  They don't eliminate discretion.  They just shift it to prosecutors.  Hardly any more democratic, but much more opaque.

Of course, most voters would prefer harsher penalties for crime, particularly thuggish crimes like king hits.  If they didn't, then tough-on-crime policies wouldn't be politically effective.  One global study concluded that mandatory minimum sentences are popular ... as long as they are discussed in general terms.  But when presented with specific cases that popularity ebbed away.

That finding accords with a more general observation that different expectations about sentencing between courts and community disappear when specifics are examined.  (See this Tasmanian study, for instance, or this Victorian one.  The NSW parliament has a recent overview of research here.)  The reason is simple, if a bit uncomfortable:  courts follow public opinion more than they care to admit.

The original mandatory sentence was the death penalty.  Capital punishment is as final a punishment as you can get.  It was loved by the tough-on-crime politicians of the 17th and 18th century, when long-term incarceration was too expensive to be an option.

It is said that Edmund Burke once commented he could "obtain the consent of the House of Commons to any Bill imposing the punishment of death."

But even in that era the judiciary tried to vary the punishment to fit the circumstances of the crime.

Stuart Banner points out in his 2002 book the Death Penalty:  an American History there were a surprising number of ways executions could be varied to make them more lenient or more punitive.  Sometimes a hanging was staged up to the very last moment, when the condemned was released to their surprise.  Sometimes the execution was merely theatrical.  For the worst crimes, hanging was combining with, for instance, dismemberment.

In other words, even in a world with just one possible punishment in theory — execution — the judiciary and executive government saw the need for substantial variation in sentencing.

Legislation is a blunt instrument.  To impose a general rule on human society it is necessary to abstract away from specifics;  to slide over details and particulars in order to come to a broader principle that can be applied to an unpredictable and diverse mixture of conduct in the future.

Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice.

It is one of the foundations of our common law system.  Judges must have the flexibility to impose sentencing in proportion to the crime, taking into account all the circumstances and specifics and the necessity to punish those who have done wrong.

This principle is too important to abandon just because an election is coming up.

Inquiry a chance to roll back civil rights curbs

The freedoms inquiry presents the Abbott government with a real opportunity to wind back restrictions on civil liberties and fundamental legal rights.

Commonwealth Attorney-General George Brandis has asked the Australian Law Reform Commission to review all commonwealth legislation to "identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges".

The inquiry has a wide brief.  It will identify laws that restrict liberal democratic rights such as freedom of speech, religion, property rights, association and movement.  As importantly, the ALRC has also been asked to identify provisions that grant legislative power to the executive, reverse the burden of proof, apply retrospectively, and undermine the right to silence.

These are areas in great need of repair.  For example, forthcoming research shows there are 112 current commonwealth laws that restrict the right to silence.  These provisions, and many others that limit fundamental legal rights and civil liberties, must be removed if the government is serious about increasing liberal democratic freedom.

It's doubtful the ALRC has ever been given a more important task.  Expanding our liberties is a job that will ultimately fall to the parliament, but identifying the provisions that give rise to these restrictions is a critical first step.

This presents a serious test of competence for the ALRC.  Its most recent foray into the public debate gives cause for concern.

Can the body that advocated a massive new restriction on free speech earlier this year in the form of a privacy tort really be trusted to advise on existing laws that restrict our freedoms?  It's a valid question given the lack of a basic appreciation for the importance of liberal democratic rights within the organisation.

Even Labor recognised the significant problems with a privacy tort.  As attorney-general in 2013, Mark Dreyfus acknowledged that allowing people to sue each other for breach of privacy had restricted free speech in other jurisdictions.

But in March, Australian Law Reform Commissioner Barbara McDonald doubled down and publicly advocated for the new tort.

While in opposition in 2012, Brandis attacked Labor's push for a privacy tort as part of a "gradual, Fabian-like erosion of traditional rights and freedoms in the name of political correctness".

It was an excellent observation.  And the fact that the freedoms inquiry has been launched demonstrates a stark contrast of intentions between this government and its predecessor.  Under the previous Gillard government, the trend was very clearly in the opposite direction — it was away from freedom rather than towards it.

This authoritarian streak was expressed in the form of several dangerous policies.  Perhaps the most egregious was then attorney-general Nicola Roxon's dangerous Human Rights and Anti-Discrimination Bill 2012.

This extraordinary bill would have made it unlawful to offend or insult another person on the basis of their political opinion.

The bill would have presumed defendants to be guilty until they proved their innocence, and they would have to pay costs even if they were found to be innocent.

At the same time, then communications minister Senator Stephen Conroy was attempting to impose massive new government controls over the media through his media regulation proposal.

The list goes on.  The proposal to force internet service providers to store data on customers' internet usage through a mandatory data retention regime, the proposal to introduce an internet filter, and other proposed laws would have placed restrictions on some of our most important human rights.

Each of these laws would be caught by the terms of reference now in the hands of the ALRC.  And we're all better off that none of them became law.

But there are dozens of existing laws that do restrict these freedoms, and they must be repealed.  Section 18C of the Racial Discrimination Act is the most prominent example.  To the Abbott government's credit its exposure draft legislation represents almost a full repeal.

The freedoms inquiry represents a departure from the unrelenting willingness of previous governments to place increasing restrictions on liberal democratic rights.  The ALRC inquiry is a welcome first step but it won't achieve anything without action from the government.

The Abbott government must prosecute the case for nothing less than liberal democracy — that human rights don't need to be rebalanced, they need to be restored.

Freedom: the forgotten human right

George Brandis is right.  Sure, the phrase 'the freedom agenda' sounds a bit naff.  But a reorientation of public policy towards fundamental civil liberties is long overdue.

Australia's well-funded human rights establishment has completely vacated the field on basic rights like freedom of speech, freedom of conscience, and freedom of association.

Brandis' freedom agenda consists of two major proposals.

First, he wants to reform the Australian Human Rights Commission to include at least one freedom commissioner along with the six — yes, count them, six — commissioners dedicated to anti-discrimination and social justice.

Second, he wants to repeal section 18C of the Racial Discrimination Act, the provision which Andrew Bolt was famously found to have breached in 2011.

More on 18C in a moment.  The first idea is the most important one.  Institutions are more powerful than laws.

It is utterly indefensible that a body charged with protecting the great pantheon of human rights — according to its enabling legislation, those listed in the United Nations' International Covenant on Civil and Political Rights — should be so myopically focused on anti-discrimination.

That Brandis' plan to add a freedom commissioner — maybe just one, against six — is even in the slightest bit controversial demonstrates how skewed this body has become.

Here's an exercise.  Let's grant the commission the benefit of the doubt and accept it is statutorily obliged to weigh the right to protection against discrimination against the right to free speech.  (Somehow anti-discrimination always seems a bit weightier, but no matter.)  Yet even when such a balance does not need to be struck, the commission does not bother itself too much with free speech.

Take one of the most serious threats to free expression of the last decade:  Stephen Conroy's internet filter.

The Australian community has been debating this for the better part of a decade.  But the first mention the commission made of internet filtering was in September this year — that is, long after it was dumped, and after the government that proposed it was dumped.

Nor has the commission stepped up to the plate on the censorious nature of Australia's film and literature classification scheme.  In fact, the few times it has mentioned classification, the commission has proposed expanding classification to include racism (see, for instance, here).

The commission harbours a systemic, consistent, and unforgivable bias against some of the key rights it is supposed to protect.

Brandis' problem is that the human rights commission is probably unreformable.  But that's OK.  It's almost certainly unnecessary.

The commission's silence on key liberty questions demonstrates that.  Civil society organisations exposed the internet filter's threat to our rights, not the government's official human rights watchdog.

So if the human rights community seriously can't abide a freedom commissioner, then the commission ought be put out of its misery and abolished.

(At Crikey, Bernard Keane has argued we still need the commission's tribunal functions to adjudicate discrimination claims.  Perhaps.  But if so, let's spin off an anti-discrimination tribunal, and stop pretending it is anything but a minor specialist wing of the judiciary.)

Over the next few months we'll be able to watch the commission make the political case for its own abolition better than any outsider could.

Section 18C of the Racial Discrimination Act is one of the commission's darlings.  They are going to oppose its repeal vehemently.  See this piece in Fairfax papers over the weekend by the new race discrimination commissioner, Tim Soutphommasane.

The Coalition has promised to repeal section 18c "in its present form".  The present form makes it unlawful to offend, insult, humiliate and intimidate a person or group on racial or ethnic grounds.

There's an open question as to whether the Abbott Government will just delete the first two words — offend and insult — or all eliminate the whole section entirely.

It's not clear what the former approach would achieve.  Judges have unhelpfully preferred to read all four words together, rather than distinguishing each word individually.

Nevertheless, the most egregious sort of acts which could be considered to be humiliation and intimidation under section 18C are also covered by other state and federal statutes.  There are many laws against intimidation, disorder, stalking, and offensive conduct — to say nothing of state racial and religious vilification laws.

Soutphommasane rightly says section 18C has been used against people who aren't conservative columnists.  But those other uses do it no credit.

I wrote about one section 18C case in the Drum, which targeted a news website for anonymous comments.

In September, another case in the Federal Court fined a lawyer $12,500 for calling a security guard a "Singaporean prick" four years ago, and telling them to go back to Singapore.  Foul and offensive, yes.  But a society that relies on years of litigation to patrol the boundaries of civility is not a healthy society.

Now there's a looming case against the anti-Israel Boycotts, Divestments and Sanctions campaign.  A judge will decide if BDS is anti-Semitic too.  Then it will be "official".

In such a way, we substitute political and moral argument for lawyers and legal acrobatics.

Of course, any freedom commissioner worth their salt would be highly critical of conservative governments.  They would oppose the Queensland Government's bikie laws, the New South Wales government's restrictions on union campaign spending, and the national security state's proposed mandatory internet data retention scheme.

Then they would target our out-of-control defamation laws.

But these are contentious things.  Perhaps it's safest just to eliminate the Australian Human Rights Commission altogether.

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Legal rights eroded without a whimper

The right to silence is under constant threat from the many new laws passed at state and federal level.  This legal right forms one of the core aspects of our criminal justice system:  that no one should be compelled to incriminate him or herself.

Such a crucial protection against injustice should not be eroded by dictatorial legislation that demands a rubber stamp from a reluctant judiciary.

Our common law has long held that to force people to condemn themselves is oppressive and contrary to justice.

Yet for years state and federal governments have passed laws that have undermined or directly removed this legal right.  Governments, concerned that they do not appear ''tough on crime'', get frustrated when due process in the criminal courts gets in the way of increasing the conviction rate.

A recent decision by the High Court clearly shows the long and sorry history of contempt that our Parliament has for the right to silence.  Lee v NSW Crime Commission concerns the NSW Criminal Assets Recovery Act 1990.

This law allows the police to force people to incriminate themselves, even if they have a criminal trial approaching.  Unfortunately, the court upheld this law and now the accused will have to produce damning information ... against himself.  This means he is helping the prosecutors better fulfil their job, completely ignoring his own right to not make things worse for himself.  Why would the High Court support such a law?

The judgment shows us how the right to silence has been whittled away for decades.  Over the years, legislation that has undermined this legal right has been confirmed in case law and those same decisions have paved the way to trump centuries of legal protection.

As far back as 1909, Huddart, Parker & Co v Moorhead brazenly noted how Parliament has the power to change ''any principle of British criminal law, no matter how fundamental''.  Half a century later, another High Court decision, Lockwood v Commonwealth, noted ''no court'' could declare illegal any law that was clearly stipulated in legislation.  Ultimately, they argued that ''it is a rule of the common law that the common law itself gives way to statute law''.

In other words, a citizen could not possibly refuse to make incriminating statements to authorities when faced with legislation that expressly tells them they have to answer.  Because of the nature of our parliamentary system, the judiciary cannot overrule legislation that comes from our democratically elected Parliament.  The court's role is to apply the law:  no more, no less.  What we need is for governments to stop undermining embedded common-law principles to achieve political ends.

Lee emphatically illustrates that the government is entitled to remove fundamental rights, as long as the legislation they write specifically gives them that power.  So the government can grant themselves the power to remove one of the key protections we have against an overreaching authority.

Lee shows that over the past century, governments have been and are still abusing this power, playing with the fabric of our legal system.

Time and again, arguments of ''the greater good'' have been used to curtail our legal freedoms.  There is always a new enemy that can only be beaten if we just give up another right, another freedom or privilege.

The right to silence is losing the battle being waged by our politicians.  It's time our elected leaders back off the principles that have built the great democracy and justice system that we have today.

Innocent on defence with Bill

The Tasmanian Government should abandon the Bill to introduce unexplained wealth laws.

The new law will not catch the crooks, but has a strong chance of trapping innocent people.

It was once famously noted the "one golden thread" throughout the centuries of common law is the onus of proof lies with the accusers.

As early as 1471 jurists noted the law would "prefer 20 guilty men to escape through mercy, than one innocent to be condemned unjustly".

The burden of proof and the right to silence helped to ensure the innocent were protected.

The Crime (Confiscation of Profits) Amendment (Unexplained Wealth) Bill 2013 will bring in sweeping new laws that would allow the state to confiscate private property.

The legislation plans to fight organised crime, hitting them where it hurts:  their wallet.

If you cannot explain your "wealth", the state will forcibly take your assets.

These powers come at a cost though:  Tasmanians' legal rights.  The rule of law has been shoved aside to chase those who move in the underworld.

The power will give the police a wide net which could all too easily punish those who are simply in the wrong place at the wrong time.

You will be forced to prove your property was legally acquired.

This is clearly reversing the onus of proof.

This puts the defendant in an impossible situation.

The police do not have to do the leg work of proving alleged criminal activity;  instead you have the hard task of producing statements, deeds or any other potentially damning document.

The accused is already on the back foot, working up from the assumption they are guilty until proven innocent.

Too bad if you are a small business owner without the paperwork and lawyers ready at hand;  the police will seize first and ask questions later.

Then there is the removal of the right to silence.

Not only are the authorities assuming your guilt, you are not even allowed to keep quiet until you have a chance to figure out what is going on or until you have managed to find a lawyer.

Any "evidence" that the police or courts demand have to be presented:  they could be papers, receipts or even clothing.

You have to hand it over;  even if there is a chance it may incriminate you.

Apart from Tasmanians' fundamental legal rights being attacked, the financial and emotional cost to individuals is huge.

All of your worldly possessions are up for grabs — your home, your savings, even your business.

All may be confiscated if you cannot prove that they were legally obtained.

Fair enough, you may be thinking:  criminals do not deserve to profit from their crimes.

However, the reversal of the onus of proof means that anyone could be forced to explain their private affairs, and the only evidence needed to remove your property is the police's suspicion.

Your house or business could be taken away just because someone had a hunch.

And not all property is owned outright, and this poses further problems.

Section 153 of the Bill spells out that if you are unfortunate enough to own property with someone who gets their assets confiscated, your share of the property is taken, too.

Your only hope is that you can stump up the cash quickly enough so you can buy out the accused's share, or that the property is readily "divisible".

Otherwise your hard earned is taken away and there is very little you can do about it.

Organised crime is an awful stain on our community.

The violence and destruction it brings must be combated, but unexplained wealth laws are not the answer.  They simply do not work.

They have been largely unsuccessful in catching major criminals in other states, yet it gives the Government sweeping powers to further intrude in our lives.

Yet now the Tasmanian Parliament wants to remove centuries of legal protections.

Your most valuable possessions are at risk — your house, business and assets.

The stakes are too high:  these laws could leave you homeless, unemployed and without a cent to your name, and all because of a mere suspicion.

The Government should abandon this legislation before it is too late.

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