September 30, 2011 | Nick

Freedom of speech, freedom of expression and the Bolt decision

Those in doubt that the Andrew Bolt case is about free speech need only think about the contortions of logic necessary to dismissing the proposition that it is about free speech.

On his blog, my friend Mark Bahnisch says that “free speech is not at issue here” before observing that “[f]ree speech, as the judgment in fact indicates, must be speech that is accountable to truth”.  He goes on to draw a distinction between “free speech” and “freedom of expression” before saying “[f]ree speech ought to be both in service to the truth, and oriented to its discovery”.

Dr Anita Heiss, one of the applicants in the case, said something similar in her statement following the result.  She adopted these words of another writer, Dr Rosie Scott:

“Free speech is the cornerstone of genuine democracy, but when writers publish disinformation dressed up as fact, lies as truth, slander as objective evaluation and call it free speech, they are devaluing its very essence and betraying all those who’ve fought for it.”

Another of the applicants, Pat Eatock has said that it is not about freedom of speech but about professionalism.

All of these things ignore the simple fact that the people who sued Bolt sued him because they were offended by what he said and they reckoned that he should not have been allowed to say it.  There were reasons behind why they thought that he should not have been allowed to say it, but ultimately they wanted him punished so as to make other people stop and think before they say something offensive.

There are, of course, all sorts of limitations on freedom of speech in particular, and freedom of expression (a superset of speech) in general.  Defamation is the one most commonly thrown around, but there are others.  Sedition is an offence.  So is incitement to violence.  Courts can prohibit publication of proceedings where the interests of justice demand it.  In commerce, misleading and deceptive conduct is prohibited.  There are all sorts of circumstances in which disclosure of information is prohibited.

The thing is, generally laws that impinge on freedom of expression are drawn narrowly; not so with section 18C of the Racial Discrimination Act.  All that need be demonstrated is that a person or a group of people is reasonably likely to be offended by conduct undertaken in public.  If you sit in a café and take the Palestinians’ side in an argument with a friend about the conflict with Israel, the chances are that a large section of the Jewish population would be offended by your remarks.  You would be liable unless you could demonstrate that you were acting reasonably, in good faith, and pursuing the argument “for a genuine purpose in the public interest”.

Of course, you may be able to demonstrate all of that, but you would have to go to Court to do it.  It isn’t free speech if you have to litigate to find out whether you’re allowed to say it.

Staying with that example, compare two possible scenarios.  Imagine two people taking exactly the same stance: defence of the Palestinian position in the conflict with Israel.  One is taking the position because he has thought long and hard about it, has read up on the conflict and has come to the view that the Israeli position is unreasonable.  The other is merely an anti-Semite who would always take sides against the Jews and has no reasoned basis for his position.  The two of them could say exactly the same thing (eg: “The Jews are murdering innocent Arabs”).  One of them would have a decent case for saying that he was acting reasonably and in good faith.  The other would not, because he was acting on nothing more than his prejudice.  For saying the same thing, in the same place, in the same tone, one could be punished under this legislation and the other be left alone.

That outcome is, frankly, bizarre.  It has no analogue in defamation law.  If you’re going to avoid liability for defamation on the basis of reasonableness of your comments, generally you will have to give the audience the facts as well as your view so that members of the audience can make up their own minds based on the facts.

The outcome is all the more bizarre for the fact that in either circumstance, the person or class will be just as offended.

Things get scarier.  Despite Mark Bahnisch’s careful distinction between freedom of expression and freedom of speech, it is clear that section 18C is meant to extend to freedom of expression, for example, through art.  So much is clear from section 18D which creates an exemption, inter alia, for “anything said or done reasonably and in good faith … in the performance, exhibition or distribution of an artistic work”.  A painting can be a basis for liability; so can a sculpture; so can a song.

What if Andre Serrano had taken a photograph of an Aboriginal artifact dipped in urine instead of a crucifix?  What would be his case for saying he acted reasonably in exhibiting the work?  Wouldn’t that require a judgment as to the inherent worth of the work as a precursor to judging whether it is reasonable to put it on display? Is the magnitude of the offence likely to be caused something to be taken into account in determining the reasonableness of the expression?  If so, how is that reliably to be judged before the performance?

None of this is to say that Andrew Bolt is to be excused for some sloppy journalism.  It is apparent that he failed to check facts.  In the course of things, he defamed some people.  Indeed, it is plain that the real complaint of most of the applicants is that they were defamed.  There was a perfectly good remedy at law without the necessity for this rather scary statutory remedy.

Posted by Nick at 3:27 pm | Comments (10) |

September 22, 2011 | Graham

Sign of the Times

Is this a new development in the global warming debate?

The most recent Times Atlas, regarded in Britain apparently as the most prestigious atlas which is reflected in its cost of £150, has shaved 15% off the ice cover of Greenland.

No-one seems to know why as the ice loss has in fact been less than0.1 percent and one of the contributors to the Atlas who wrote the text on global warming referred to it as “that Greenland rubbish”.

The error seems to have been most heavily criticised by scientists from the Scott Polar Research Institute at Cambridge, but whilst admitting the errors the publishers “stand by the accuracy of the maps in this and all other editions of the Times Atlas”.

The two things that stand out here are the willingness of educators to knowingly push false information out into schools (which is where the atlas will be mostly used) and the readiness of the scientists to criticise the error.

There is, regrettably, nothing new about the first, but there is about the second. When Al Gore’s An Inconvenient Truth came out with all its howlers and was used in schools I don’t recall one scientific voice being raised in protest.

Hopefully things are changing with responsible scientists being prepared to point out extremist and alarmist claims.

Posted by Graham at 6:25 am | Comments (2) |
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September 15, 2011 | Graham

Labor can blame itself for Cappo debacle

Labor has made it virtually impossible to appoint any sort of churchman to any sort of high profile government role. It did this by the disgraceful way it demonised Peter Hollingworth, former Anglican Archbishop, and drove him from the role of Governor-General.

Hollingworth was ostensibly crucified, not because he abused a child, not because he dealt with abuse inappropriately, but because he failed, in the view of some, to show sufficient sympathy towards the victims of abuse at one Anglican school run independently from his oversight.

It appears that Cappo may have been closer to the alleged incident, but that the incident has not been proven to any sort of standard of proof (whereas at least Hollingworth’s had) and it does not even involve children but two, possibly consenting, adult men.

All large scale organisations that deal with children are going to have instances of child abuse. There is a saying that you “fish where the fish are”, so anyone prone to abusing children, is most likely to be found where victims are available. They will be in schools, children and youth organisations and so on.

Expand the ambit to include adult sexual abuse and you expand the potential number of organisations significantly.

So under our new standards of moral opprobrium it would be virtually impossible to find a church where there had not been sexual misconduct of some sort.

Which means that it is unlikely that there is a high ranking churchman or woman anywhere who has not been involved, no matter how tangentially, in dealing with allegations of abuse, which can then be used as a club to attack them.

It is a ridiculous standard, but Labor brought it all on itself, perhaps because it opportunistically saw an opportunity to destroy Hollingworth, the first G-G to be appointed by John Howard after the Republican Referendum was lost.

Opportunism is not restricted to Labor. Moral hysteria campaigns require the cooperation of legions of opportunists. In this case Xenophon was supported by many of the usual chorus, but achieved this end mostly on his own. In the Hollingworth case the choir was mostly conducted by Hetty Johnson, who has made a career out of lynch mob vigilantism, but she was joined by many others, including the families of victims, and those who just have it in for Christianity.

This latter is the most disturbing. I have yet to hear of any protests against the appointment of any executive from secular organisations that have significant rates of child abuse, such as directors general of education, community services or health departments, yet child abuse would be at least as widespread there as in any church organisation.

This opportunism doesn’t just prejudice the appointment of public officials, but it takes the focus off the area where most child abuse occurs.

Only a very small minority of abuse actually occurs in institutions. Most of it occurs in families and close social groups, but as no-one can see any leverage in any of these cases, most of which are probably hushed-up by parents and relatives, they rarely come into the public arena. If you really wanted to tackle child abuse, this is where you would focus, which leads one to the conclusion that these other high profile cases are not about child abuse at all.

What’s more this fascination with using child abuse as a tool to dislodge high level appointees takes the focus off where the bulk of the problem lies.


Posted by Graham at 9:56 pm | Comments (5) |
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September 14, 2011 | Graham

What’s the point of the media inquiry?

For a second, when I heard the news reports, I thought online media had risen in importance to the point where the government wanted to investigate them along with print. Closer reading of the terms of reference rebuts this presumption on my part. They’re interested in the Internet, but only to the extent that it is attached to newspapers.

Well at least that’s what I’m hoping, because the only part of the terms of reference that appears at odds with this reading entertains the notion that the Press Council should be extended to cover on-line publications. On top of the existing laws with respect to defamation, privacy, discrimination and hate speech across seven national jurisdictions and (who knows how many international ones), the last thing we need is another busy body telling us what can be published. And given that virtually anyone with a computer and modem can be an on-line publisher, where would they draw the line for Press Council interference?

I’ve put the terms of reference below, but the one that made me laugh the hardest is that which looks at the effect of the Internet on the business models of the newspapers. I think the media proprietors are all having their own inquiries on that one, and they’ll get back to you via sales on the news stands or computer terminals when they have one. Surely the government isn’t thinking they might take up Eric Beecher’s idea that news  media ought to be subsidised by the government? We’ve already got the ABC, that’s enough.

The terms of reference read:

An independent panel will be appointed to inquire into and report on the following issues, while noting that media regulation is currently being considered by the Convergence Review:

a) The effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms;

b) The impact of this technological change on the business model that has supported the investment by traditional media organisations in quality journalism and the production of news, and how such activities can be supported, and diversity enhanced, in the changed media environment;

c) Ways of substantially strengthening the independence and effectiveness of the Australian Press Council, including in relation to on-line publications, and with particular reference to the handling of complaints;

d) Any related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest.

The panel will be required to provide a report to Government by 28 February 2012, while working with the Convergence Review committee to ensure that findings are able to be incorporated into the ultimate report of the Convergence Review by end March 2012.

Posted by Graham at 9:39 pm | Comments (5) |
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September 13, 2011 | Graham

How would you divest News Limited?

The government is establishing a media inquiry, but apparently it won’t look at divestment, despite the Greens demands that it do so. This is probably a good idea because I can’t see how you could actually execute a workable divestment.

News Limited owns 70% of the eastern seaboard newspapers, and it is claimed that this is an unacceptable concentration of ownership. In Brisbane, Adelaide and Hobart they own the only daily. In Sydney and Melbourne they compete with Fairfax which owns two broadsheets The Sydney Morning Herald and The Age which compete against News’ tabloids The Telegraph and The Herald Sun. On a weekday News has 66% of the circulation in Sydney and 72% in Melbourne.

Anyone arguing that News needed to be divested of some of its publications would be hard-pressed to argue that they should be forced to sell in the capitals where they face significant competition. They may have close to 70% in both those markets, but they’ve done it against competition.

It would seem to be perverse to punish them because their very substantial competitor isn’t as good at selling newspapers as they are. It’s not as though there are restrictive trade practices in place which prevent newsagents from selling both newspapers to whoever wants to buy them.

So the argument surely devolves to Brisbane, Adelaide and Hobart where there is no print competition.

But this then produces another problem.  While these three newspapers represent around 30% of News’ titles and forcing News to divest them would reduce News to around 50% of the capital city market, there isn’t really a capital city market in any meaningful sense of the world. There are really six discrete markets.

If monopolies in each of these discrete markets are a problem, then what you are doing is really transferring the problem from one owner to another. The government might not like the current owner of these newspapers, but they might like a future owner even less.

It’s hard to see too many people getting excited about buying a newspaper these days, which means that likely buyers may have other reasons for buying. Suppose prominent LNP supporter Clive Palmer could be persuaded to stump up for The Courier Mail – would that fulfil the Greens and government agenda, or just make things worse for them? He’s got the money to buy a newspaper, and it might suit his view of the world. It’s also fashionable for mining magnates to own media with Gina Reinhardt having a fresh stake in Ten.

There is no alternative to forcing a sale. You can’t force people to set-up a newspaper in competition which will be successful enough to substantially eat into News’ circulation. In Brisbane Fairfax thought about it and whimped out, establishing an online publication The Brisbane Times, which has barely made an impact on coverage of politics in this state.

This article skirts a whole lot of issues – such as whether it is appropriate at all to have an inquiry into ownership of newspapers. It is afterall a matter of free speech that someone should be able to publish their opinion as widely as they like and I would be surprised if a constitutional challenge to any attempt to limit this right would not succeed.

But, within the limits of my counterfactual, how exactly would you divest News Limited?

Posted by Graham at 9:21 pm | Comments (1) |
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September 12, 2011 | Graham

Being shopped by David Peetz

The government and its supporters are currently putting a lot of effort into trying to discredit workplace reforms. They claim that work choices, or individual contracts, it doesn’t appear to matter which, actually decreased productivity, and therefore living standards, or had no effect on it.

The latest offering is from David Peetz Shopping around a productivity lie.

But it is a bit rich to accuse your opponents of lying when your own analysis is so flawed. As a university professor he ought to be held to a higher standard than a politician, businessman or union leader.

The major problems with Peetz’s offering, apart from its pejorative tone, is that he shifts between different ways of measuring productivity so as to suit his argument and that his statistical analysis is also quite incompetent.

He starts by pointing out that:

Labour productivity is the quantity of output (say, the number of meals produced by a restaurant’s staff) divided by the quantity of hours worked (in producing those meals).

Fair enough

Nor is productivity about the price of the product.

Well, not if you use the number of widgets produced per hour of effort definition, but that is not how national productivity is measured. It can’t be as there is no way you could find enough statisticians to put in all the workplaces to measure changes in output of widgets versus input of labour.

So we essentially measure national productivity by taking hours in-putted against GDP out-putted, and it is this measure that Peetz uses to “demonstrate” that work choices had no effect on productivity.

But in fact prices do have an effect on this measure of productivity, so the good professor’s argument is based on a fallacy. If my mum made this mistake, I’d put it down to lack of expertise. In Peetz’s case he doesn’t have that alibi. If he wants to accuse others of lying it is fair enough that he face the same charge.

But it gets worse. Because national productivity does depend to some extent on the prices one receives for goods, there are obviously a huge range of factors that can affect it. A depreciation of the dollar, for example, by making it easier for exporters and export competing businesses to charge higher prices, can give you a productivity boost, while producing no more widgets per hour worked.

There are other non-price issues that may effect productivity. Retrenching workers can also give you higher productivity. This may be an effect of a down-turn in the economy, or ironically, higher wages leading to a company investing in capital and shedding labour.

Productivity may also drop as a function of heavy up-front capital investment as part of a start-up phase, which is not expected to return until some time in the future – the reason why the mining industry is currently having a negative effect on productivity despite its extremely high levels of productivity as measured by GDP per hour worked.

Productivity will also be affected by increases in education as workforces move out of manufacturing into more white collar occupations and import their manufactures from overseas.

If Peetz were interested in the truth he would try a multi-factorial analysis trying to disentangle which of these forces may have effected productivity; trying to find a statistically rigorous link between one or more of them and changes in productivity.

Instead of that he takes just one factor, takes no account of what percentage of the economy was actually affected by it, and points to a few spots where growth in productivity slows and says that as people were talking about workplace reform at the same time as growth in productivity stalled that this proves workplace reform has no effect.

Productivity isn’t everything. If you Google David Peetz you will find that he appears to be highly productive as measured by the widget definition – lots of papers. But it’s quite possible to be a prolific widget maker and have a negative impact on the economy if none of your widgets is usable. Peetz appears to be this sort of widget maker, and it ill behoves him to cast aspersions on others.


Posted by Graham at 9:58 pm | Comments (2) |
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September 09, 2011 | Graham

See, that didn’t hurt PM

Shadow Attorney-General George Brandis probably did the ALP a favour by referring Craig Thomson to the NSW police. Now the government can claim that he has been exonerated.

Not that this is the smartest thing to do, but it is a stronger position than they were in before the referral.

Makes you wonder why they didn’t do it themselves.

As I pointed out in my piece in The Australian they are breaking all the rules of crisis management.

And so it continues. While Craig Emerson and Wayne Swan have come out accusing the Opposition of smear and negativity they should have jumped on the opposition band-wagon and actively urged-on other law enforcement agencies to look at the case.

What seems to be going on here is that the rules of the union over what things credit cards may be used for are so vague that paying for prostitutes is arguably an entertainment expense, and the question of whether it was authorised or not becomes a case of “he said/she said”, and therefore unlikely to be decided beyond a reasonable doubt.

Which means every other law agency will be in the same position.

But that doesn’t mean that the public will see things the same way, in which case defending Thomson as innocent, doesn’t help the government. They need to be seen to be doing the “right thing” and need to get the issue off the front pages.

Their best protection is to get public attention off Thomson as quickly as possible, not to try to canonise him.

Posted by Graham at 1:07 am | Comments (1) |
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September 06, 2011 | Nick

Refugee policy will never be Labor’s issue

I very much doubt that Julia Gillard is deeply, internally committed to off-shore processing of asylum-seekers.  She is a left-winger by origin.  In any event, it is hard to find evidence of deep commitment to anything in the Prime Minister or her team.

That leads me to ask “What the hell is she doing?”

The Liberal Party will never attempt to win an election on industrial relations, because it knows that the Labor Party has the electorate’s trust on that issue.  If industrial relations policy is the issue at an election, Labor wins.

The same thing can be said, in reverse, about refugee policy.  If the question at the election is who is best able to deal with boat people, or, to put it with more piquancy, “border protection”, the Coalition wins.

That question is barely contestable for the Labor Party competently led and directed.  At the moment, winning on the point is impossible.  Why do they insist on trying?

Obviously, if there had been some disaster in the refugee policy area, the Labor Party would have to deal with it, but you can never plan for those sorts of events.  The worst that would happen if there was onshore processing is that, possibly, there would be more people trying to come by boat.

Tony Abbott could scream about those numbers, but they lack the shock value of the attempt at the Malaysia deal and the spectacular failure of it.  Moreover, the attempt and the failure signal to the electorate that the Government considers it a critical issue fairly to be considered as crucial to the success or failure of the Government as a whole.

Many commentators have observed that Abbott is dictating policy from opposition.  Nothing is a clearer demonstration of the truth of that observation than the malaise in which the Labor Party, purportedly a social democratic party committed to compassionate treatment of the weak, finds itself by insisting on sending vulnerable people to a third world country that likes to beat people with sticks.

Posted by Nick at 11:53 pm | Comments (2) |
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September 05, 2011 | Ronda Jambe

Too hot to handle

Back in New Jersey, home of Jersey Boys, the Jersey Shore, NJ Housewives, and of course, the Sopranos. Not to mention the place I used to give cheer-leading rah rahs in the soot above the entrance to the Lincoln Tunnel.

It is stinking hot, only about 33 C yesterday, but very humid. We dragged wet carpets from my mother’s basement, her only aftermath of Hurricane Irene. Obama came to NJ yesterday to utter smooth comforting words. On the news , the still swollen Passaic River rushed past behind him, heedless of his emollient speech.

Texas, meanwhile, is having its worst fire season ever. No point in mentioning the water shortages in the south west or south east.

The Sunday political chat involves a lot of head-scratching and finger pointing. Yeah, we baby boomers are to blame for being spenders. How convenient to target that group rather than the political class. The deficit and job creation are the current topics, along with the long line up of Republican candidates for President. No one mentions the growing gap between the rich and the poor, or the uneven way the recession has hit those least able to handle it.

Except for Richard Reich. In a Sunday New York Times article he  describes the wild party that dominated US policy circles since the 1970s. Instead of cocaine, there were hedge funds. No strippers, just stripping away of investment in education, infrastructure, public health and transportation.

Lots of jobs were created – in the free for all that the financial services industries became. Hot times in the Bonfire of the Vanities.

Now the top 5% of the richest account for 37% of US consumption, according to Reich. He said in print what my mother and I had told each other, although the  television panel couldn’t hear us shouting: the US’s problems will not be solved until the drain of wealth to towards the richest is reversed.

No sign of the penny dropping on climate change either, even as the number of natural disasters adds to the deficit problem. Obama has scrapped plans to tighten up on smog control, which should be part of a broad approach to cleaning up the air, water, and energy sources. Maybe he is just shrewd: workers with respiratory disease don’t need jobs, and the medical sector can count their care as adding to GDP.

The level of mainstream rhetoric, Reich and a few others notwithstanding, is appalling. In other corners of the media, a few sages note that dealing with problems from a 20th century approach just won’t work. Growth in consumption won’t save the US economy, neither will more relaxation of rules on dirty industry. Squeezing entitlements won’t fix the budget deficit, unless the military is squeezed much more.

As always when I visit here, I find myself succumbing to the prevailing zeitgeist, even while trying to engage anyone who will chat. No one seems to notice that the sky is a vague non-colour: not grey, nor white and certainly not blue. In the evenings it takes on a metallic glow, long after dusk. The head-banging is tiring in the heat, think I’ll turn up the aircon.

Posted by Ronda Jambe at 6:53 pm | Comments Off on Too hot to handle |
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September 02, 2011 | Graham

Gillard entitled to be wrong and to criticise the High Court

There is nothing in the doctrine of the separation of powers that says Julia Gillard can’t criticise a High Court decision after it has been delivered, huffing and puffing by lawyers and the opposition notwithstanding.

While the doctrine says that the legislature, the judiciary and the police must all act independently, it doesn’t say that they should each act without comment by the others, or in some cases supervision. Just as it is fine for judges to criticise the legislature for poor legislation, or for forcing it to judge in a way it deems inappropriate (think mandatory sentencing for example), it is fine for the legislature, or members of it, to criticise the judiciary, or individual judges.

Indeed, the law is combative and a way of effecting change. Without challenge and discussion we would never get any advances in law. Judgements tend to be existential, and over time what seems right at first may come to seem wrong later (think the Harvester Case, for example).

The relationship between the courts and the legislature is in fact quite complex as it often involves two-way flows.  For example the courts may over-rule legislation which the legislature may then change so as to alter the effect of the legislation and circumvent the court ruling. They may even do this retrospectively (although retrospective legislation is generally regarded as bad), so that it was as if the court effectively didn’t get to rule in the first place.

What a politician should never do, and this applies equally to any other citizen, is to try to influence the proceedings of a court while they are in train, except through the court processes available to them.

So Gillard’s criticism is entirely permissible. It also appears to be wrong. Justice French appears not to have contradicted himself in this judgement, and it is yet another example of the PM citing someone as having “questions to answer” but then not really being able to come up with any.

I think the government ought to have seen this coming as well.

The Malaysian solution offered a more potent deterrent than any of the Howard Government’s offshore processing options precisely because the Malaysian attitude to refugees and human rights is not as humane as our own. In the case of Nauru and Manus Island the detention centres, while placed offshore, were essentially run to Australian standards, by Australians.

That would not be the case in Malaysia where asylum seekers released into the community have no ability to work, or to collect social security benefits.

As a matter of principle I cannot see that we should be able to effectively contract out of our humanitarian obligations by subcontracting them to a third party. It is no different from the US sending political prisoners to other countries to have them tortured because torture is forbidden in the US.

The Malaysian Solution was our own version of rendition.

Perhaps if the refugee lobby had not been wedged between wanting to keep Labor in power and its own professed standards it would have seen this judgement coming. As it is, only a portion of it seems to have.

Certainly, when the highest court in the land finds 6-1 in favour of a proposition, there should be a large body of competent lawyers who would see it the same way if they were looking at the issues objectively and without bias.

Posted by Graham at 11:51 pm | Comments (6) |
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