In Defence of the Establishment

971753_10151574401276107_283040900_nChristopher Rath outlines why the establishment of the Liberal Party exists, and why change from within is the obvious choice for Classical Liberals, Libertarians, and Small Government Conservatives.

The Liberal Party of Australia today is still the John Howard party. The majority of Federal Liberal MPs and Senators served in his Government, most advisers and apparatchiks worked for his Government, and most Young Liberals were inspired to join the Party because of his Government.

 

I joined the Young Liberals in 2006 at the very young age of 16 because I believed in the economic reform being pursued by the Howard/Costello era. I was a “dry” before I knew what the term meant. I was also a “dry” before I knew that there were “wets” in the Party. I thought that “dry” was the only game in town and Party divisions only existed on social issues.

 

This is because by the time the 2000s came along the Liberal Party establishment had become “dry”, with the “wets” a minority of outsiders. The “wets” had been the establishment in the 1970s under Fraser but they lost the long bitter war that was waged in the 1980s and 90s. In fact you could say that Fightback! was the final nail in the “wets” coffin; certainly Howard led a thoroughly “dry” government for over eleven years. If the Party establishment was not “dry” perhaps I would have never joined. After all it was Hawke and Keating rather than Fraser who reduced tariff protection, floated the dollar, and began privatising government assets.

 

I love the Liberal Party establishment because I am bone dry, not in spite of it. My critics in the Young Liberals may call me an “establicon” or establishment conservative as a pejorative, but I wear it as a badge of honour. Being an “establicon” means being “dry”, it means supporting the Premier and Prime Minister, campaigning, raising money, supporting branches to grow, pre-selecting talented men and women, and fostering our best future leaders. It means loving the Liberal Party and our greatest living Australian, John Howard.

 

Howard was also an “establicon”, from being NSW Young Liberal President in the 1960s to seeking a parliamentary career as quickly as possible. He loved the Party and the establishment more than anyone, perhaps even more than his mentor John Carrick. When he lost the 2007 election and his seat of Bennelong he could have blamed his Treasurer, Cabinet, Parliamentary colleagues or Party machine. Instead, even after he had given 40 years of his life to the Party, 16 years as leader and over eleven years as Prime Minister, he humbly took complete blame for the election loss. In fact he defended and praised the Party on election night 2007- “I owe more to the Liberal Party than the Liberal Party owes to me”.

 

The people I’ll never understand are those who attack the Party or threaten to resign or somehow think that they’re above the Party. They are not. Not even a Prime Minister of eleven and a half years is above the Party. Similarly I’ll never understand those who claim ideological purity as a reason for preventing their party membership. If you don’t like the Party leadership or policies, you should join the party and make a difference or contribution towards promoting your deeply held beliefs. You’re going to have more influence inside the Party than from the sidelines. You’re not going to change the fact that the Liberal Party is the natural Party of government, being in power two thirds of the time since WWII.

 

The Liberal Party establishment is not perfect. Not every Liberal Party policy is perfect. But isn’t it better to get 80% of something than 100% of nothing? Isn’t it better to be pragmatic and win an election than being a purist and let Bill Shorten and the trade unions run the nation? All great right-wing leaders understand the importance of pragmatism and the broad church, but again Howard is the master:

“The Liberal Party of Australia is not a party of the hard Right, nor does it occupy the soft centre of Australian politics. It is a party of the centre Right. It is the custodian of two great traditions in Australia’s political experience. It represents both the classical liberal tradition and the conservative tradition.”

 

Ronald Reagan and Margaret Thatcher understood this and similarly they turned their parties into “dry” pragmatic parties built in their own image. Even Turnbull understands the importance of pragmatism and has neutralised the issues of climate change and same sex marriage early on. But he also understands that the establishment today, unlike the establishment under the other Malcolm in the 1970s, is inherently “dry”. This is why he went out of his way in his victory speech to prove his “dry” credentials, careful not to scare away people like me- “This will be a thoroughly liberal government. It will be a thoroughly liberal government committed to freedom, the individual and the market.”

 

Turnbull’s Ministry is also packed to the rafters with establishment dries, including Mathias Cormann, Paul Fletcher, Arthur Sinodinos, Andrew Robb and Josh Frydenberg. Andrew Robb, the archetypical establishment dry, was an economist, staffer, government relations professional, and the federal director of the Liberal Party responsible for the 1996 campaign that brought the Howard Government to power. As Minister for Trade and Investment he has successfully negotiated three free trade agreements. Similarly Josh Frydenberg is an establishment dry, securing the safe seat of Kooyong after being an adviser to Alexander Downer and John Howard and a Director of Global Banking with Deutsche Bank.

 

So to all of the libertarians, classical liberals and small government conservatives out there, my plea to you is to join the Liberal Party, support the inherently “dry” establishment which now exists, try to make a difference by pushing for your agenda and philosophy within the natural party of government, and understand that in politics a level of pragmatism is required.

 

“Politics is the art of the possible, the attainable — the art of the next best.” (Otto Von Bismarck)

Christopher Rath is a Young Liberal Branch President and currently works in the private sector. He previously worked as an adviser to state and federal Liberal Parliamentarians and has degrees in economics and management.

“Move on” laws target civil liberties, protesters, and the homeless

Victoria's unions should be proud of their efforts to strengthen freedom of association in Australia.

Victoria’s unions should be proud of their efforts to strengthen freedom of association in Australia.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Do you think police should have the power to fine anyone they like on the spot for any reason? New South Wales’ new “move on” laws come dangerously close to doing exactly that. They empower police to fine anyone for just looking suspicious, even if they are innocent of any crime. Backed by the Baird government and the NSW Labor opposition, they are an affront to our civil liberties, including the right to freedom of movement, a fair trial and the presumption of innocence. And they are also a danger to the homeless, who will be their most likely victims. Still, we should be thankful that it is not as extreme as its recently repealed Victorian equivalent, which imposed extraordinary restrictions on the right to freedom of movement and protest.

“Move on laws” have created an entirely new category of victimless “crime”, which consists entirely of arousing police suspicions. Bear in mind that suspicions are, by definition, unfounded beliefs. So the laws empower police to fine any person who refuses to move on from their current location if that person is suspected  being a hindrance to passersby, or of committing a crime or even of being likely to commit a crime. It is not clear how the police can judge you likely to commit a crime; however if we assume police possess the supernatural power to predict the future then we can begin to make sense of these laws. The scope for  abuse of these powers is enormous.

Importantly, innocence is not a defence to the “crime” of arousing police suspicion. Police are entitled to fine you even if you are innocent of any crime. If you choose to fight the fine, all the police had to do was show that their suspicions were “reasonable” when they fined you. Far from being a tool to fight militant unions or extremist protesters, the evidence indicates that move on laws have primarily targeted homeless people.

The power to fine individuals on the basis of police suspicions, without any proof of guilt, is an extraordinary attack on our right to freedom of association, the presumption of innocence and a fair trial. Most people simply will not fight a fine in Court. Some of the fines issued by police may be unjust. They might be caused by simple mistake or selective prosecution and vindictiveness. We are not likely to know this simply because such fines will go unreported.

While the Victorian Liberals claimed that these laws were necessary to clamp down on militant unionism and extremist protesters, they have not pointed to a single instance in which these powers have actually been used against militant trade unions or extremist protesters. Nor have they produced any evidence that these laws have played any role in reducing crime. This is because there is no such evidence.

The Victorian Liberals’ claim that the police have failed to enforce the laws on the books to deal with militant unionism or extremist protesters is simply false. Threats, intimidation and violence are already illegal. They are criminal acts, punishable by jail time if necessary. If the prosecution proves that a person has committed an act of violence beyond reasonable doubt than they will go to jail. If people are not being prosecuted it is because there is not enough proof to prove their guilt. It is that simple. There is no evidence nor any suggestion that the police are too incompetent or unwilling to prosecute violent offenders simply because of their links to trade unions or extremist political organisations and frankly, if that were the case there is no reason to believe that police would be any more capable or honest if they were given more powers. This is not to suggest that none of the protesters have broken the law; it is simply to say that we deserve to know whether they have or not before we punish them. If we punish them without knowing if they are guilty or innocent, we could well face the same treatment next. The Victorian Liberals’ claims are a substance-less scare campaign, pure and simple.

Thankfully, NSW police have no power to move on those who appear to be protesters. Nor, thanks to the Andrews’ ALP government, do Victorian police enjoy that power. But the existence of these powers is objectionable regardless.

And there is always a risk that police will use these powers against protesters anyway in the hope that they might get away with it if the protests do not take place directly in the public eye.

One thing we do know about move on laws is that in practice they are used to drive homeless people into the criminal justice system. As Lucy Adams of legal support organisation Justice Connect notes,

“Laws that regulate public space are rarely intended to punish people for their homelessness – but this is often the effect…. Circumstances that cause people to be sleeping rough, begging or drinking in public are almost always health and social issues, not criminal ones… prison should not be a substitute for supported housing, mental health care or substance dependence treatment.”

It is worth noting that police are also empowered moving on persons affected by drugs or alcohol in New South Wales, and the likelihood is that the homeless will still be targeted by these laws as well as other move on laws.

In practice, move on laws target the homeless on the nonsensical premise that it is better for them to be in the criminal justice system than receiving support and care from charitable organisations.

Not only are these laws totally ineffective in reducing crime and a means for police to harass innocent citizens; they probably increase crime rates by needlessly throwing already marginalised groups such as the homeless, youth and Aboriginals into the criminal justice system. Indeed, in Queensland, 76.8% of homeless persons surveyed reported having received a “move on direction” by police. For example, because the homeless cannot drink in their own homes, they are more likely to be moved on as some of them may get drunk in public instead. These groups face an increased risk of police confrontation or detention that could needlessly open the gateway towards a life of crime. It is a destructive process, it unnecessarily burdens the criminal justice system and, ultimately, endangers the public far more than being a nuisance in public ever would. In that respect, police involvement in the lives of the homeless will prove not only pointless but dangerous.

Of course, it doesn’t help that begging for money is actually a crime in Victoria, which means police can actually take money from the homeless as the supposed proceeds of crime, fine them $100 for begging and further involve them in the criminal justice system. I daresay that if it were anyone but the police taking money from the homeless they would be pilloried as the worst kind of despicable thief. But these are the laws our elected officials have instituted and continue to maintain, and these are the laws our law enforcement agencies enforce every day. It is simply shameful.

The strengthening of NSW’s “move on laws” is an appalling development which should be condemned.  By contrast, the winding back of these laws in Victoria should be cause for celebration.

Notes:

1. NSW’s move on laws are defined in sections 197-204B of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The laws were introduced in mid-2011 by the O’Farrell Liberal government.

2. Victoria’s move on laws are now largely equivalent to New South Wales. See s6, Summary Offences Act 1966 (Vic).

A modern day witch hunt: how unexplained wealth laws victimise the innocent

Pictured: how unexplained wealth laws combat organised crime

Pictured: how unexplained wealth laws combat organised crime

We like to think of ourselves as superior to our ancestors, but as I look at Australia’s unexplained wealth laws I venture to disagree.  The laws have empowered police to confiscate the property of the innocent without a trial, and they have been introduced in every State, every Territory and federally. Indeed, in New South Wales, the Coalition is promising to increase their scope in the run up to the election. Punishment without a trial is a process that is equivalent to a medieval witch hunt.

All of your property—gone. Unexplained wealth laws empower law enforcement officials to permanently confiscate your property without being convicted of a crime. If you’re suspected of committing a minor criminal offence, the police are empowered to confiscate everything you own. In Queensland, it can be as trivial as recreational marijuana possession. There is no need to even accuse you of having committed a crime in obtaining the property; no need to charge you with a crime; no need to bring your trial; and no need to prove you guilty. Punishment without a trial or due process is the agenda. It’s up to you to defend yourself in Court against the allegation that you obtained the property unlawfully.

Absurd law, absurd results. In one instance, recreational marijuana possession was in fact used as the pretext for the confiscation by police of almost $600,000.00 of cash belonging to one man, Mr Henderson, and his siblings in 2002. [1] Mr Henderson proved in Court that he obtained that money legitimately from the sale of a family heirloom belonging to himself and his siblings. But the money was confiscated anyway, for the absurd reason that he could not prove that the family heirloom was legally acquired by his now-dead parents. Police did not offer any other explanation as to how the property was acquired. They did not produce a victim claiming the heirloom was his, or even a police report. They did not allege that Mr Henderson or his property acquired the property illegally. They weren’t required to. Mr Henderson was a member of the vulnerable underclass which unexplained wealth laws seem to target and victimise.

That money sure looks suspicious. Unexplained wealth laws also empower the police to permanently confiscate specific items of your property on the suspicion that it was acquired illegally. Again, the onus is on you to get it back.

Carrying cash is a crime? Thus in another case in Western Australia, police targeted a man, Mr Morris, for carrying around his life savings of over $100,000.00 in cash in a plastic bag.[2] It was suspicious. So when police pulled him over while he was driving back in 2011, they took the cash. He kept his savings in cash because he was suspicious of banks; he had lost his meagre savings due to a bank failure in the 80’s. He was planning to use the money purchase and open a fitness training centre. Police did not allege that the man had committed a crime of any kind. They simply suggested that he had obtained the bag of money from a friend. This single suggestion was the entirety of the prosecution case. Mind, they had no proof of it. No witness came to the stand in their favour. Nor did they offer any evidence the man’s friend had gotten the money illegally.  Mr Morris got his money back, but the case took two years to be disposed of—a punishment in time and money in and of itself. If Mr Morris had been subjected to the traditional process of criminal procedure, this would never have happened at all. The police could not and did not charge him with the “crime” of carrying around a bag of money. But with unexplained wealth laws, they confiscated it anyway. This is not justice.

No evidence of effectiveness. Witch hunters could only practise their trade because witchcraft was popularly thought to be real and dangerous. Similarly, our modern day law enforcement officials confiscate on the premise that they are combating organised crime. The dangers of organised crime are no superstition, of course. But then again, neither were the diseases witches pretended to cure. And much as peasants never asked witch hunters for evidence, few people seem to ask for any evidence that these laws do anything to combat organised crime. There’s a reason for that. There is none. Unexplained wealth laws are designed to catch people who haven’t been proven guilty of a crime. That does nothing to assist police in their investigation of actual crimes.

A wider net catches more innocent people. It is more likely than not that some of the people caught by police will be innocent. Some indeed might be guilty of something, but if they are subject to unexplained wealth laws then we often cannot be sure what they are guilty of, if anything. With unexplained wealth orders, there need be no convictions or sentences, nor even any reported crimes to justify a confiscation. The accused and the prosecution can simply consent to an order being made against the accused for his property to be confiscated. Nobody knows what they are accused of or whether the punishment is in proportion to the crime.

Disproportionate, draconian punishments. We should not assume that the punishment is just simply because the accused did not contest it. The accused may not have had the funds or the time to contest the accusations against him. While he may have been guilty of some offence that might justify confiscating the proceeds of crime, it does not follow that law enforcement officials should be empowered to take everything that person owns. The punishment has to match the crime. The typical punishment for a marijuana user is a counselling session or a small fine—not the confiscation of all of their property.

A pointless, hysterical distraction from punishing real criminals. Finger pointing hysteria may sweep up a lot of innocent people together with the guilty. But there’s no evidence that organised crime is likely to suffer as a result. Indeed, unexplained wealth proceedings will distract police from the actual task of investigating real crimes and real criminals. They will be too busy investigating loosely hypothetical possibilities that might warrant a confiscation order to worry about any real criminals. Therein, I suspect, lies the appeal. Police and politicians can look like they are doing something about crime without doing much at all.

Reversing the presumption of innocence undermines our liberal society. The Coalition like to market themselves as tough on crime, but unexplained wealth laws punish suspects, not proven criminals. Punishing suspects means punishing more innocent people. The traditional, conservative view of law enforcement sees the presumption of innocence as the cornerstone and a distinguishing feature of the English legal system. It is as old as the English Treaty of Magna Carta:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

Or as famous English jurist Sir William Blackstone put it:

“It is better that ten guilty persons escape than that one innocent suffer.”

People must have confidence that the legal system will not unfairly target or persecute them. With the introduction of unexplained wealth laws, the Coalition, the ALP and the Greens have renounced their commitment to this fundamental principle of liberal society. They have undermined a core, embedded principle of our legal system and our society. This is a remarkable and troubling tri-partisan consensus indeed. The only politician to have spoken against these laws to date is David Leyonjhelm of the Liberal Democrats. Leyonjhelm has separately pointed out that reversing the presumption of innocence is tantamount to accepting the “just world fallacy”:

The just-world fallacy holds that a person’s actions always result in fair and fit consequences, and it exists because people are uncomfortable accepting [that] suffering is random and that sometimes bad things happen for no reason at all. It is common to believe people must have done something to deserve what they get, including being accused of a crime. The argument goes: if bad things only happen to those who deserve them and I am a good person, then I can be sure nothing bad will ever happen to me.”

Unfortunately, the world is not fair, and law enforcement officials are not perfect. They are fallible human beings. They are capable of making mistakes. They are capable of persecution, not merely prosecution. Judging people guilty before proven innocent is tantamount to a sacrilegious worship of law enforcement officials as nigh-infallible human beings. Unexplained wealth laws turn them into the witch finders of our modern day witch hunts.

Revenue raising gone mad. Add to the mix the fact that confiscations generate revenue for the government and you will see a dangerous combination at work. Police who return more money towards government coffers than they put in will naturally be in line for more funding. Politicians will be more inclined to give it to them. It is not hard to see how law enforcement officials might be more inclined to prosecute law abiding citizens when their pay packet is on the line. That’s the experience in the United States, at any rate, where law enforcement officials get every penny they confiscate back into their own local police department. Then they spend it on holidays, nice cars and other like perks, as the Institute for Justice, an American civil liberties law firm, has recorded. If law enforcement officials get their way we could witness much the same here. It is a comfortable revenue stream indeed.

Would you do it to your neighbour? A final thought. If you took your neighbour’s property and refused to return it to him, without even telling him why or caring to prove that he acquired the property illegally, what would that make you? A thief. It’s one thing to confiscate the proven proceeds of crime, but unexplained wealth laws are something else entirely.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

[1] See Henderson v Queensland [2014] HCA 52.

[2] See Director of Public Prosecutions v Morris [2010] WADC 148. (Note: you will need access to a subscription service such as LexisNexis to access this decision).