tag:theconversation.com,2011:/us/topics/legislation-12796/articlesLegislation – The Conversation2024-03-20T04:01:17Ztag:theconversation.com,2011:article/2262202024-03-20T04:01:17Z2024-03-20T04:01:17ZWhy are religious discrimination laws back in the news? And where did they come from in the first place?<p>On March 21, the federal government will release the Australian Law Reform Commission’s report on ensuring religious schools cannot discriminate against LGBTQIA+ students and staff.</p>
<p>But the political debate is already well under way – and has been going on since 2017. So how did we get here?</p>
<h2>The current debate started with marriage equality</h2>
<p>When same-sex marriage was legalised in late 2017 following a successful postal survey on the issue, conservative religious groups were promised a <a href="https://theconversation.com/morrison-wants-religious-discrimination-act-passed-before-election-108755">“religious freedom” review</a> as a consolation prize. </p>
<p>That <a href="https://www.pmc.gov.au/domestic-policy/taskforces-past-domestic-policy-initiatives/religious-freedom-review">review</a>, led by former Liberal minister Philip Ruddock, found Australia does not have a religious freedom problem. However, it did recommend new legislative protections against religious discrimination. In <a href="https://www.pm.gov.au/media/government-response-religious-freedom-review">response</a>, in December 2018, the Morrison government promised a Religious Discrimination Act.</p>
<p>What the Morrison government ended up proposing – in multiple versions over several years – was laws that would both prohibit discrimination against people on the basis of religion (which was not particularly controversial) and allow discrimination against LGBTQIA+ people and others by taking away existing anti-discrimination protections (which was very controversial). These draft laws never passed.</p>
<p>Before the 2022 federal election, Labor leader Anthony Albanese promised to change federal law to ban discrimination against LGTBQIA+ students and staff by religious schools, and to protect people against discrimination on the basis of their religious beliefs or lack of religious beliefs.</p>
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Read more:
<a href="https://theconversation.com/future-of-anthony-albaneses-religious-discrimination-legislation-is-in-peter-duttons-hands-226119">Future of Anthony Albanese's religious discrimination legislation is in Peter Dutton's hands</a>
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<h2>There are actually two distinct issues at play</h2>
<p>The debate we’ve been having over the past few years is actually a debate about two issues.</p>
<p>The first issue is about religious discrimination. This means ensuring people are not discriminated against on the basis of their religious beliefs, or lack of religious beliefs. </p>
<p>All states and territories (other than New South Wales and South Australia) already have laws banning this kind of religious discrimination. But there is no federal law banning religious discrimination – apart from a <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s116.html">constitutional provision</a> banning religious discrimination in federal government jobs.</p>
<p>It’s standard practice for there to be complementary federal and state anti-discrimination laws on the same topic. For example, if a person is discriminated against on the basis of their race, that person can choose to take action under either federal or state law.</p>
<p>One proposal is for there to be a federal Religious Discrimination Act.</p>
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<p>The second issue is religious exemptions, which involves allowing discrimination on the basis of sexuality, gender identity, marital status and so on where the discrimination has a religious motivation. For example, the Sex Discrimination Act currently prohibits discrimination on the basis of sex, sexuality, gender identity and marital status, but also includes an exemption that allows religious schools to discriminate against students and teachers. </p>
<p>So, if a non-religious private school expels a student for being gay that would contravene the Sex Discrimination Act. But if a religious school did the same thing for religious reasons, that would not contravene the Sex Discrimination Act.</p>
<p>Some states and territories already ban religious schools from discriminating against students and teachers for these kinds of reasons. So if a religious school in Victoria expels a student for being gay, that would not breach federal law as it stands but it would breach Victorian law. The practical result is that the school can’t expel the student for being gay.</p>
<p>A second proposal is to modify the religious exemptions in the Sex Discrimination Act.</p>
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Read more:
<a href="https://theconversation.com/why-australia-does-not-need-a-religious-discrimination-act-99666">Why Australia does not need a Religious Discrimination Act</a>
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<h2>The Morrison government’s first draft of the legislation</h2>
<p>The Morrison government held a consultation during 2019 on a <a href="https://www.ag.gov.au/rights-and-protections/consultations/religious-discrimination-bills-first-exposure-drafts">first draft</a> of its promised legislation. This draft legislation included standard anti-discrimination provisions to prohibit discrimination against people on the basis of their religious beliefs or lack of religious beliefs. It also included highly controversial additional provisions.</p>
<p>The controversial provisions included:</p>
<ul>
<li><p>a provision about “statements of belief” – motivated by the <a href="https://theconversation.com/explainer-does-rugby-australia-have-legal-grounds-to-sack-israel-folau-for-anti-gay-social-media-posts-116170">Israel Folau controversy</a> – which would have overridden all other federal and state anti-discrimination laws to allow derogatory statements to be made by doctors, schools and employers against women, people with disabilities and LGTBQIA+ people.</p></li>
<li><p>a provision allowing healthcare practitioners to refuse to provide care to people, such as allowing a pharmacist to refuse to fill prescriptions for a divorced woman or a nurse to refuse to dress a gay man’s wound.</p></li>
</ul>
<p>In effect, these provisions would have created a “sword” allowing harm to be inflicted on people by taking away existing anti-discrimination protections. Anti-discrimination laws are meant to be a “shield” protecting people from harm. This is why the issue has been so controversial.</p>
<h2>The Morrison government’s second draft</h2>
<p>The controversy over the first draft led to consultations in 2020 on a <a href="https://www.ag.gov.au/rights-and-protections/consultations/religious-discrimination-bills-second-exposure-drafts">second draft</a>.</p>
<p>The second draft was very similar to the first. It too included the override provisions on “statements of belief” and refusal to provide health care. </p>
<p>However, it reduced the number of healthcare professions entitled to refuse to treat patients. It also included some <a href="https://www.ag.gov.au/sites/default/files/2020-03/summary-of-amendments-to-the-bills-since-the-first-exposure-draft.pdf">additional measures</a> about:</p>
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<li><p>allowing religious hospitals to “preference” people of the same religion as the body in hiring decisions. For example, a Catholic hospital could give priority to Catholics in hiring new staff</p></li>
<li><p>allowing religious camps and conference centres to take faith into account when hiring out their campsites.</p></li>
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<h2>The bill fails</h2>
<p>The Morrison government <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6821">introduced legislation</a> based on the second draft into parliament in 2021. </p>
<p>During debate, several Liberal backbenchers <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/FlagPost/2022/March/Floor_crossings_in_the_House_of_Representatives_on_10_February_2022">crossed the floor</a> to vote in favour of amendments the government did not want. One of those amendments – to remove the ability of religious schools to discriminate against LGBTQIA+ students – succeeded, with five Liberal MPs crossing the floor. </p>
<p>The amended bill passed the House of Representatives with the support of both major parties. However, it did not come to a final vote in the Senate because people on all sides of the debate were unhappy with the bill and it was causing internal tensions in the Liberal Party. The bill lapsed.</p>
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<h2>So why is it back in the news?</h2>
<p>After the Labor Party won the 2022 federal election, Attorney-General Mark Dreyfus <a href="https://ministers.ag.gov.au/media-centre/australian-law-reform-commission-review-religious-exemptions-educational-institutions-04-11-2022">asked</a> the Australian Law Reform Commission to advise on what amendments to federal law would be necessary to deliver the Labor Party’s election promise. Labor’s promised legislation would:</p>
<ul>
<li><p>ensure religious schools cannot discriminate against LGBTQIA+ students or staff under federal law.</p></li>
<li><p>ensure religious schools can give preference to people of the same faith as the school when hiring staff under federal law.</p></li>
<li><p>ensure the legislation will be drafted in a manner that does not remove existing legal protections against other forms of discrimination.</p></li>
</ul>
<p>The commission delivered its report to the attorney-general in December 2023. </p>
<p>In anticipation of the report being released on March 21, senior politicians on both sides of politics, including Prime Minister Anthony Albanese and Opposition Leader Peter Dutton, have <a href="https://theconversation.com/future-of-anthony-albaneses-religious-discrimination-legislation-is-in-peter-duttons-hands-226119">already started</a> the politicking. The debate may not be over yet.</p><img src="https://counter.theconversation.com/content/226220/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke Beck is board member of the Rationalist Society of Australia Inc and a member of Australia Labor Party. The views in this article are his own.</span></em></p>Religious discrimination laws have been highly controversial in Australia in recent years. Here’s where they started, and where we are now.Luke Beck, Professor of Constitutional Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2233832024-02-22T14:37:01Z2024-02-22T14:37:01ZDeepfakes in South Africa: protecting your image online is the key to fighting them<figure><img src="https://images.theconversation.com/files/575560/original/file-20240214-24-qaryuf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deepfakes pose serious dangers.</span> <span class="attribution"><span class="source">Arkadiusz Warguła/iStock</span></span></figcaption></figure><p>Leanne Manas is a familiar face on South African televisions. Towards the end of 2023 the morning news presenter’s face showed up somewhere else: in <a href="https://omny.fm/shows/capetalk-breakfast/morning-live-presenter-leanne-manas-targeted-by-ai">bogus news stories and fake advertisements</a> in which “she” appeared to promote various products or get-rich-quick schemes. </p>
<p>It quickly emerged that Manas had fallen victim to “deepfaking”. Deepfakes <a href="https://journals.co.za/doi/abs/10.47348/SAMLJ/v32/i3a5">involve the use</a> of artificial intelligence tools to manipulate images, video and audio. And it doesn’t require cutting-edge technical know-how. Software like <a href="https://www.theverge.com/2019/9/2/20844338/zao-deepfake-app-movie-tv-show-face-replace-privacy-policy-concerns">FaceSwap and ZaoApp</a>, which can be downloaded for free, mean that anybody can create deepfakes. </p>
<p>Deepfakes were initially used in the entertainment industry. For example, an actress in France who was unable to film her parts in person for a soap opera due to COVID restrictions still played the role <a href="https://www.france24.com/en/tv-shows/encore/20201210-face-swap-france-s-top-soap-uses-deepfake-technology-for-self-isolating-actress">thanks to deepfakes</a>. In the health industry deep-learning algorithms, which are responsible for deepfakes, are used to <a href="https://www.technologyreview.com/2019/07/05/134286/ai-deepfakes-gans-medical-cancer-diagnosis/#:%7E:text=Deep%2Dlearning%20algorithms%20are%20excellent,abnormalities%20in%20an%20x%2Dray">detect tumours through pattern-matching in images</a>.</p>
<p>But these positive applications are few and far between. There are rising <a href="https://www.vice.com/en/article/jgedjb/the-first-use-of-deepfakes-in-indian-election-by-bjp">global concerns</a> about the effect deepfakes might have on <a href="https://www.theguardian.com/politics/2024/jan/21/call-for-action-on-deepfakes-as-fears-grow-among-mps-over-election-threat">democratic elections</a>. Recent reports suggest that deepfakes are <a href="https://www.iol.co.za/capeargus/news/deepfake-fraud-and-attacks-on-the-rise-in-sa-1c14c52e-4cd1-43ef-a5f8-4f0d5cfcdf68">on the rise</a> in South Africa and that <a href="https://www.news24.com/fin24/companies/deepfakes-are-booming-online-but-south-africans-struggle-to-spot-them-20240121">South Africans seemingly struggle to spot them</a>.</p>
<p>It is worrying, then, that South Africa’s government hasn’t yet taken any legislative steps to combat deepfakes – especially with the country’s national elections scheduled for later this year. I am a legal scholar specialising in sport law, with a particular focus on image rights. I’m especially interested in the recognition of an individual’s image right and the legal position when their likeness is misappropriated without their consent. That includes the use of deepfakes. </p>
<p>In my <a href="https://scholar.sun.ac.za/server/api/core/bitstreams/000cd700-2e54-4c4d-bde5-6cc617d8623a/content">LLD thesis</a>, I argued that a person’s image needs clear legal protection, taking into account the realities of digital media and the fact that many individuals such as influencers, athletes and celebrities generate an income from commodifying their image online. Promulgating legislation will create legal certainty in South Africa as it pertains to an individual’s image.</p>
<h2>International examples</h2>
<p>Various states in the US have already taken action to deal with deepfakes, mostly in the context of elections. For example, Texas become one of the first states to <a href="https://versustexas.com/deepfakes/">criminalise the use of deepfakes</a>, especially if the content of the deepfake relates to political elections. It also recently passed <a href="https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=SB1361">a second bill</a> which targets sexually explicit deepfakes. So it’s a criminal offence to create a deepfake video with the intention of injuring a political candidate or influencing an election result, or to distribute sexually explicit deepfakes without the consent of the individual, with the intention to embarrass them.</p>
<p><a href="https://www.malwarebytes.com/blog/news/2020/01/deepfakes-laws-and-proposals-flood-us">Maryland and Massachusetts</a>, meanwhile, have proposed legislation that specifically prohibits the use of deepfakes. Maryland plans to target deepfakes that may influence politics; Massachusetts wants to criminalise the use of deepfakes for already “criminal or tortious (wrongful) conduct”.</p>
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Read more:
<a href="https://theconversation.com/algorithms-bots-and-elections-in-africa-how-social-media-influences-political-choices-179121">Algorithms, bots and elections in Africa: how social media influences political choices</a>
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<p>In 2020 California became the first US state to criminalise the use of deepfakes in political campaign promotion and advertising. The <a href="https://www.dwt.com/blogs/media-law-monitor/2020/02/two-new-california-laws-tackle-deepfake-videos-in">AB 730 bill</a> makes it a crime to publish audio, imagery or a video that gives a false and damaging impression of a politician’s words or actions. Though the bill doesn’t explicitly mention deepfakes it is clear that AI-manufactured fakes are its primary concern.</p>
<p><a href="https://www.govtech.com/policy/new-york-governor-signs-deepfake-likeness-bill-into-law">In 2023, the governor of New York signed the Senate Bill 1042A</a>. This aims to prohibit the dissemination of deepfakes in general, not just in relation to elections.</p>
<p>At least four federal deepfakes bills have been considered. <a href="https://www.malwarebytes.com/blog/news/2020/01/deepfakes-laws-and-proposals-flood-us">These include</a> the Identifying Outputs of Generative Adversarial Networks Act and the Deepfakes Accountability Act.</p>
<h2>Protecting image rights</h2>
<p>There is currently no recognition of image rights in South Africa’s case law or legislation. Image rights are distinct from copyright in law. The scope of protection provided by copyright alone would not be enough to tackle the problem of deepfakes in a court setting. </p>
<p>I <a href="https://scholar.sun.ac.za/handle/10019.1/128896">argue</a> for legal intervention which recognises individual image rights. By recognising an image right the image will be protected against unauthorised use. This will not only include the misappropriation of an individual image for commercial use, it will also combat deepfakes, whether those relate to elections and politicians or any manipulation of a person’s image with malicious intent.</p>
<p>Image rights legislation is key. It can:</p>
<ul>
<li><p>clearly define an individual’s image</p></li>
<li><p>specify when an infringement of the image has occurred </p></li>
<li><p>provide the image right holder with legal remedies for unauthorised use. </p></li>
</ul>
<p>This can all help regulate deepfake situations. The malicious and deceptive nature of deepfakes may cause the image right holder to suffer significant harm. It is time that South Africa’s legislature addressed these situations by providing the necessary protection to individuals.</p><img src="https://counter.theconversation.com/content/223383/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Layckan Van Gensen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Deepfakes are on the rise in South Africa and many people seemingly struggle to spot them.Layckan Van Gensen, Junior Lecturer in Mercantile Law, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2219062024-01-30T13:55:43Z2024-01-30T13:55:43ZDisposable vape ban: local communities voiced their concerns – and the government has listened<figure><img src="https://images.theconversation.com/files/572118/original/file-20240130-29-kgghse.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Laura Young started campaigning to ban disposable vapes 16 months ago and now the UK government is taking action. </span> <span class="attribution"><span class="source">PHOTO CREDIT Laura Young</span>, <span class="license">Author provided</span></span></figcaption></figure><p>On a wet day in January 2023, I took Scottish Labour MSP, <a href="https://www.thecourier.co.uk/fp/politics/scottish-politics/4128610/dundee-disposable-vapes/">Mercedes Villalba</a>, on a vape hunt. Having seen some of the vape litter picking videos I had made which went viral, she asked to come along and see the problem for herself. Armed with bin bags and litter pickers, we set off around the University of Dundee campus in search of discarded disposable vapes. </p>
<p>Within an hour, we collected dozens of these electronic devices. This experience spurred Villalba on to act. She asked questions in parliament questions, attended events and spoke at debates alongside other parliamentarians who had similar concerns about the harmful environmental impacts of single-use vapes. </p>
<p>A year since that vape hunt, we’ve reached a milestone. This week, after considerable efforts, the UK government announced plans to <a href="https://www.telegraph.co.uk/news/2024/01/25/uk-set-to-ban-single-use-vapes-discourage-children-smoking/">ban disposable vapes</a>. Community engagement, including my vape hunt litter picks, and grassroots action have played a crucial role in driving this change. </p>
<h2>Community is key</h2>
<p>My <a href="http://www.lesswastelaura.com/phd.html">PhD</a> at Abertay University and the University of Dundee investigates the links between climate resilience, nature-based solutions, and community engagement. My research has been running in parallel with the vape campaign, and I’ve had firsthand experience of the importance of local voices and community action. </p>
<p>Local communities notice the damage caused by disposable vapes, whether that’s nicotine-addicted schoolchildren <a href="https://www.bbc.co.uk/news/uk-wales-66734516">struggling to concentrate</a> through school lessons, waste workers dealing with <a href="https://www.materialfocus.org.uk/press-releases/over-700-fires-in-bin-lorries-and-recycling-centres-are-caused-by-batteries-many-of-which-are-hidden-inside-electricals/">increased fires due to explosive lithium-ion batteries</a> inside vapes, or <a href="https://www.gov.uk/government/news/crackdown-on-illegal-sale-of-vapes">trading standards</a> officers feeling overwhelmed by the sheer number of shops flouting the rules selling illegally to kids. </p>
<p>Communities also know which solutions could be the best fit for them, so taking the time to build connections with local representatives really makes a difference. Collaboration with local community groups to find solutions is beginning to catch on after recent research has shown that multiple benefits are possible when working together. </p>
<p>Projects, including <a href="https://urbanbynature.eu/">UrbanByNature</a> working with local community groups such as <a href="https://urbanbynature.eu/hub/scotland">Growchapel</a> in Glasgow or <a href="https://clevercities.eu/">CleverCities</a> in <a href="https://clevercities.eu/hamburg/">Neugraben-Fischbek, Hamburg</a>, facilitate collaboration between communities, researchers, local authorities, charities and practitioners to work together shaping cities and towns into more resilient places, tackling urban challenges and transforming neighbourhoods. </p>
<p>Local people get to shape the places they call home while building resilience and creating spaces that enhance wellbeing too. That includes green corridors, roofs, rain gardens, school wildflower meadows and community allotment projects. </p>
<h2>Waking up to e-waste</h2>
<p>I first noticed disposable vapes littering the natural environment while <a href="https://www.glasgowtimes.co.uk/news/22317698.east-renfrewshire-woman-wants-disposable-vapes-banned-pulling-dogs-mouth/">walking my dog</a> around our local park in the south side of Glasgow in September 2022. As a climate change activist, I couldn’t sit back and do nothing. I <a href="https://twitter.com/LessWasteLaura/status/1570343031412494336">tweeted in frustration</a>, saying that I was sick of finding these as litter, and wanted to campaign against these for both public health and environmental reasons. </p>
<p>That frustration led to the launch of the #BanDisposableVapes social media awareness campaign, then 16 months later, a proposed legislative change. The engagement of so many decision-makers at every level of government has definitely been a major contributor to the success of the movement to ban disposable vapes. </p>
<p>In May 2023, I spent a Thursday evening emailing every single councillor in Scotland about the need to ban disposable vapes. I had no idea what the response would be, but what transpired was so encouraging. After drafting personalised emails to each local authority, outlining the problems, research and solutions, with local case studies where possible, <a href="https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/recent-publication?meeting=15434&iob=131707#:%7E:text=It%20is%20probably%20because%20vape,to%20be%20banned%20or%20controlled.">29 out of 32 councils</a> took this issue to their meetings. Remarkably, different political parties proposed change, agreed to support the campaign to ban disposable vapes and wrote to the Scottish government demanding improved legislation. </p>
<h2>Grassroots innovation</h2>
<p>Throughout this campaign, I’ve seen countless examples of successful grassroots action. <a href="https://www.mcsuk.org/what-you-can-do/campaigns/ban-disposable-vapes/">Litter picking groups</a> across the UK have contacted their local MPs. <a href="https://www.parentsagainstvaping.org/#:%7E:text=Parents%20Against%20Vaping%20e%2Dcigarettes%20(PAVe)%20is%20a%20national,education%20organization%20powered%20by%20volunteers.">Parents</a> and <a href="https://www.bbc.co.uk/news/uk-wales-67546601">teachers</a> have united to discuss solutions to youth vaping. Youth groups including the <a href="https://www.shetnews.co.uk/2023/04/27/youth-worker-keen-to-see-councillors-back-campaign-to-ban-single-use-vapes/">Eco Youth Club in Scalloway, Shetland</a> have voiced their concerns to their councillors. </p>
<p>Local communities have more power than we often realise. Yes, we need businesses and governments to shift the system, but individuals have significant influence too. Businesses look at our consumer behaviours and change their products to meet the next trend. Our demands can push businesses to improve their corporate responsibility. Meanwhile, governments endeavour to secure a tick on our next ballot paper to secure our vote. We can help set the agenda and insist that our government sets legislation that protects our planet and our community. </p>
<p>When the UK government released the <a href="https://www.gov.uk/government/consultations/creating-a-smokefree-generation-and-tackling-youth-vaping/outcome/creating-a-smokefree-generation-and-tackling-youth-vaping-consultation-government-response">Creating a smokefree generation and tackling youth vaping</a> consultation at the end of 2023, organisations, experts and people in local communities could really have their say. There was a huge response. Most (27.025) of the 27,921 responses came from individuals concerned about health impacts of vaping, underage access and environmental issues. Crucially, 69% respondents were in favour of a ban, and decision makers have listened and acted. </p>
<p>There’s still more work to be done. We have <a href="https://www.theguardian.com/society/2024/jan/29/uk-disposable-vapes-ban-very-likely-to-become-law-after-lack-of-objections">about a year</a> to build robust legislation, address the problems of disposable vapes and consider any potential unintended consequences. </p>
<p>But right now, I’m taking a moment to celebrate the success of a truly community-centered campaign that has brought together people from across different sectors, political parties, and nations to take direct action that protects our environment and the next generation.</p>
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<p><strong><em>Don’t have time to read about climate change as much as you’d like?</em></strong>
<br><em><a href="https://theconversation.com/uk/newsletters/imagine-57?utm_source=TCUK&utm_medium=linkback&utm_campaign=Imagine&utm_content=DontHaveTimeTop">Get a weekly roundup in your inbox instead.</a> Every Wednesday, The Conversation’s environment editor writes Imagine, a short email that goes a little deeper into just one climate issue. <a href="https://theconversation.com/uk/newsletters/imagine-57?utm_source=TCUK&utm_medium=linkback&utm_campaign=Imagine&utm_content=DontHaveTimeBottom">Join the 30,000+ readers who’ve subscribed so far.</a></em></p>
<hr><img src="https://counter.theconversation.com/content/221906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Young does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Grassroots activism can drive governments to take action. The recent decision to ban disposable vapes in the UK hinged on creative collaboration between communities, councils and decision-makers.Laura Young, PhD Researcher, Environmental Sciences, Abertay UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
</strong>
</em>
</p>
<hr>
<h2>What are preventative detention laws?</h2>
<p>The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
</strong>
</em>
</p>
<hr>
<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.</p>
<p>The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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</em>
</p>
<hr>
<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.</p>
<p>In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<hr>
<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2172612023-11-27T19:17:49Z2023-11-27T19:17:49ZVoluntary assisted dying is now available in all Australian states. How do the NSW laws compare?<p>From <a href="https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/default.aspx">today</a>, eligible people in New South Wales can ask for voluntary assisted dying. </p>
<p>NSW is the last Australian state to have its voluntary assisted dying laws begin. These laws come into effect following an 18-month implementation period.</p>
<p>Here is who’s eligible to request voluntary assisted dying in NSW and how its laws compare with those in other Australian jurisdictions.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-be-available-to-more-australians-this-year-heres-what-to-expect-in-2023-196209">Voluntary assisted dying will be available to more Australians this year. Here's what to expect in 2023</a>
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</p>
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<h2>Who’s eligible in NSW?</h2>
<p>To be eligible for voluntary assisted dying in NSW, a person <a href="https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/eligibility.aspx">must</a>:</p>
<ul>
<li><p>be an adult with decision-making capacity</p></li>
<li><p>be an Australian citizen, permanent resident or a resident of Australia for at least three continuous years</p></li>
<li><p>have lived in NSW for at least 12 months (unless granted an exemption)</p></li>
<li><p>be experiencing suffering that cannot be relieved in a way the person considers tolerable</p></li>
<li><p>have a condition that is advanced, progressive and will cause death within six months (or 12 months for neurodegenerative diseases)</p></li>
<li><p>be acting voluntarily without pressure or duress.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-all-states-heres-whats-just-happened-in-nsw-and-what-it-means-for-you-183355">Voluntary assisted dying will soon be legal in all states. Here's what's just happened in NSW and what it means for you</a>
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</em>
</p>
<hr>
<h2>How do these new laws differ from other states?</h2>
<p>Australian voluntary assisted dying laws are lengthy and tightly regulate the request and assessment process. </p>
<p>A person must make at least three separate requests for voluntary assisted dying, and their eligibility must be assessed by at least two specially trained doctors. The process is overseen by a voluntary assisted dying board (or commission).</p>
<p>The new laws largely follow <a href="https://eprints.qut.edu.au/238547/">the Australian model</a> of voluntary assisted dying, but key differences exist. In NSW:</p>
<ul>
<li><p>people can choose between taking the medication themselves or having the medication administered by a qualified health professional. In other states, administration by health professionals is more limited</p></li>
<li><p>all health-care workers (not just for example, doctors and/or nurse practitioners depending on the state) can raise the option of voluntary assisted dying with the person, provided they also inform the person about palliative care and other treatment options</p></li>
<li><p>nurse practitioners can administer the medication (they cannot in Victoria and South Australia). However, nurses cannot administer it (they can in Tasmania and Queensland) </p></li>
<li><p>non-participating facilities have obligations to facilitate access, including allowing health professionals to enter the facility to provide information. Residential facilities must also allow health professionals to attend to assess for eligibility or administer the medication. In other cases, facilities may be required to transfer the person elsewhere for this to occur. (These obligations do not exist in Victoria, Tasmania and Western Australia)</p></li>
<li><p>the usual waiting period between first and final requests for voluntary assisted dying is five days (compared with nine days in most other states).</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-you-want-access-to-voluntary-assisted-dying-but-your-nursing-home-wont-let-you-183364">What happens if you want access to voluntary assisted dying but your nursing home won't let you?</a>
</strong>
</em>
</p>
<hr>
<h2>What’s happening elsewhere?</h2>
<p>Since 2019, all Australian states have progressively introduced voluntary assisted dying. Each state must review their laws after a fixed period, and some states have already started doing so. </p>
<p><strong>Victoria and Western Australia</strong></p>
<p>Victoria was the first state to introduce voluntary assisted dying laws, which became operational in June 2019. In the first four years, <a href="https://www.safercare.vic.gov.au/reports-and-publications/voluntary-assisted-dying-review-board-annual-report-july-2022-to-june-2023#:%7E:text=The%20report%20shows%20that%20since,from%20taking%20the%20prescribed%20substance">912 people died</a> through voluntary assisted dying. </p>
<p>Western Australian laws have been in effect since July 2021. In its first two years of operation, <a href="https://www.health.wa.gov.au/%7E/media/Corp/Documents/Health-for/Voluntary-assisted-dying/VAD-Board-Annual-Report-2022-23.pdf">446 people died</a> through voluntary assisted dying. </p>
<p>Both states have started to review their laws.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-begin-in-wa-this-week-but-one-commonwealth-law-could-get-in-the-way-161982">Voluntary assisted dying will begin in WA this week. But one Commonwealth law could get in the way</a>
</strong>
</em>
</p>
<hr>
<p><strong>Tasmania, Queensland and South Australia</strong></p>
<p>Tasmanian laws have been operational since October 2022, with <a href="https://www.health.tas.gov.au/publications/release-voluntary-assisted-dying-six-month-report-operations">16 people</a> dying through voluntary assisted dying in the first six months. These laws are scheduled to be reviewed after <a href="https://eprints.qut.edu.au/238547/8/VAD_in_Australia_Comparison_Paper.pdf">October 2025</a>. </p>
<p>Queensland and South Australian laws commenced in January 2023. In Queensland, <a href="https://www.health.qld.gov.au/research-reports/reports/departmental/voluntary-assisted-dying-review-board-annual-report">245 people died</a> in the first six months through voluntary assisted dying. In South Australia, <a href="https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/services/primary+and+specialised+services/voluntary+assisted+dying/reporting/voluntary+assisted+dying+reporting">70 people died</a> in the first eight months.</p>
<p>Queensland laws will be reviewed in 2026 and South Australia’s will be reviewed in 2027.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-could-soon-be-legal-in-queensland-heres-how-its-bill-differs-from-other-states-161092">Voluntary assisted dying could soon be legal in Queensland. Here's how its bill differs from other states</a>
</strong>
</em>
</p>
<hr>
<p><strong>Australian Capital Territory and Northern Territory</strong></p>
<p>The territories were previously prevented from passing voluntary assisted dying laws by a federal law, which has now <a href="https://theconversation.com/territories-free-to-make-their-own-voluntary-assisted-dying-laws-in-landmark-decision-heres-what-happens-next-195291">been repealed</a>.</p>
<p>In 2023, the Australian Capital Territory introduced a <a href="https://theconversation.com/voluntary-assisted-dying-is-finally-being-considered-in-the-act-how-would-it-differ-from-state-laws-216733">voluntary assisted dying bill</a> into parliament. The Northern Territory has <a href="https://cmc.nt.gov.au/project-management-office/voluntary-assisted-dying#:%7E:text=It%20is%20led%20by%20co,the%20views%20of%20the%20community">established a panel</a> to make recommendations, and community consultation has begun. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/territories-free-to-make-their-own-voluntary-assisted-dying-laws-in-landmark-decision-heres-what-happens-next-195291">Territories free to make their own voluntary assisted dying laws, in landmark decision. Here's what happens next</a>
</strong>
</em>
</p>
<hr>
<h2>Passing laws does not guarantee access</h2>
<p>Early research and reports from oversight bodies suggest voluntary assisted dying laws are safe, but have reported a range of barriers to access.</p>
<p>Some of the barriers are specific to a specific state’s law. Other barriers have been reported across states. Barriers include: </p>
<ul>
<li><p>Commonwealth restrictions on discussing voluntary assisted dying via <a href="https://research.qut.edu.au/voluntary-assisted-dying-regulation/wp-content/uploads/sites/292/2023/11/Commonwealth-telehealth-ban-is-unfair-barrier-to-VAD-Research-briefing.pdf">telehealth and email</a></p></li>
<li><p>a lack of <a href="https://www.mja.com.au/journal/2023/219/5/access-voluntary-assisted-dying-victoria-qualitative-study-family-caregivers">doctors</a> willing to provide voluntary assisted dying</p></li>
<li><p><a href="https://onlinelibrary.wiley.com/doi/10.5694/mja2.51787">inadequate remuneration</a> for doctors</p></li>
<li><p>a lengthy and complicated <a href="https://www.mja.com.au/journal/2021/215/3/participating-doctors-perspectives-regulation-voluntary-assisted-dying-victoria">administrative process</a>.</p></li>
</ul>
<p>While some barriers may be addressed at the state level, others will require reform at the federal level (for example, telehealth restrictions and inadequate remuneration).</p>
<hr>
<p><em>Correction: this article has been updated to reflect the correct waiting periods for voluntary assisted dying in most states other than NSW.</em></p><img src="https://counter.theconversation.com/content/217261/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Casey is a research fellow at the Australian Centre for Health Law Research. She has been employed on multiple projects as a research fellow, including the Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government and the Western Australian Government's Review of the Voluntary Assisted Dying Act 2019. She was also previously engaged as a legal writer for the Voluntary Assisted Dying Training in Queensland.</span></em></p><p class="fine-print"><em><span>Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and state governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian, Western Australian and Queensland governments to design and provide the legislatively mandated training for health practitioners involved in voluntary assisted dying in those states. He (with Lindy Willmott) has also developed a model bill for voluntary assisted dying for parliaments to consider. He is a sessional member of the Queensland Civil and Administrative Tribunal, which has jurisdiction for some aspects of this state's voluntary assisted dying legislation. Ben is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian government.</span></em></p><p class="fine-print"><em><span>Katrine was a member of the QUT team which delivered the mandatory training for health professionals participating in voluntary assisted dying in Western Australia and Queensland. </span></em></p><p class="fine-print"><em><span>Lindy Willmott receives or has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and state governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian, Western Australian and Queensland governments to design and provide the legislatively mandated training for health practitioners involved in voluntary assisted dying in those states. She (with Ben White) has also developed a model bill for voluntary assisted dying for parliaments to consider. Lindy Willmott is also a member of the Queensland Voluntary Assisted Dying Review Board, but writes this piece in her capacity as an academic researcher. She is a former board member of Palliative Care Australia.</span></em></p>Here’s who is eligible to request voluntary assisted dying in NSW and how its laws compare with those in other Australian jurisdictions.Casey Haining, Research Fellow, Australian Centre for Health Law Research, Queensland University of TechnologyBen White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of TechnologyKatrine Del Villar, Lecturer, Queensland University of TechnologyLindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2162042023-10-23T18:59:36Z2023-10-23T18:59:36ZGOP’s House paralysis is a crisis in a time of crises<figure><img src="https://images.theconversation.com/files/555378/original/file-20231023-25-n0skbs.jpeg?ixlib=rb-1.1.0&rect=19%2C0%2C4341%2C2903&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's trouble under the U.S. Capitol dome. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/dark-government-royalty-free-image/1181743541?phrase=US+house+of+representatives&adppopup=true"> iStock / Getty Images Plus</a></span></figcaption></figure><p><a href="https://www.npr.org/2023/10/23/1207933406/the-house-is-without-a-speaker-nearly-3-weeks-after-kevin-mccarthy-was-ousted">House Republicans fired one leader</a>, Kevin McCarthy, and have spent almost three weeks trying unsuccessfully to choose another to succeed him as speaker of the House. That’s left the U.S. House of Representatives <a href="https://www.cnn.com/2023/10/21/politics/house-speaker-race-candidates/index.html">unable to do its work</a>, paralyzing the entire legislative branch of government, because the Senate can’t pass legislation without a functioning House. </p>
<p>Is this a “constitutional crisis?” Or something less significant?</p>
<p>The speaker of the House of Representatives is <a href="https://theconversation.com/what-does-the-speaker-of-the-house-do-heres-what-kevin-mccarthys-successor-will-have-for-a-job-94884">a powerful position with an outsized role in lawmaking</a>. According to the rules of the House, the speaker is “<a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm">the presiding officer of the House and is charged</a> <a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm">with numerous duties and responsibilities by law and by the House rules</a>.” </p>
<p>The speaker calls the House to order, refers bills to committees, appoints committee members, rules on points of order and recognizes members on the floor. These duties and responsibilities keep the House engaged in considering and passing bills. </p>
<p>In short, the speaker is critical to the administration of House business. Under the <a href="https://www.senate.gov/about/officers-staff/president-pro-tempore/presidential-succession-act.htm">Presidential Succession Act</a>, passed to supplement Article 2 of the Constitution, the speaker also stands <a href="https://www.usa.gov/presidential-succession">second</a> in line to the presidency, after the vice president, in the event of the president’s incapacity.</p>
<p>For now, the House is presided over by a temporary speaker, U.S. Rep. Patrick McHenry, a Republican from North Carolina, but scholars and experts are <a href="https://www.nytimes.com/2023/10/04/us/politics/patrick-mchenry-interim-speaker.html">divided about whether the House rules</a> allow the person in that role to fulfill all the critical duties of the speakership. Because the situation is unprecedented and because the rules are ambiguous, <a href="https://www.politico.com/live-updates/2023/10/19/congress/jordans-new-plan-00122465">McHenry appears reluctant to exercise</a> anything other than the minimal powers necessary to elect a new speaker.</p>
<p>Thus the House remains in limbo, with action needed as <a href="https://www.cnbc.com/2023/09/30/government-shutdown-live-updates-congress-faces-funding-deadline.html">budget deadlines loom</a> and <a href="https://www.latimes.com/world-nation/story/2023-10-22/israel-strikes-gaza-syria-and-west-bank-as-war-against-hamas-threatens-to-ignite-other-fronts">a war between Israel and Hamas threatens to spread</a> to other fronts. <a href="https://www.researchgate.net/profile/Stefanie-Lindquist-2">As a scholar of both constitutional law and politics</a>, I believe the U.S. could be viewed as in constitutional crisis – a crisis that, if it does not end, could provoke larger crises ahead.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An empty leather chair behind a lectern and in front of an American flag." src="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555380/original/file-20231023-15-s57hlb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The chair for the speaker of the House remains empty at the U.S. Capitol in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-chair-for-the-speaker-of-the-house-remains-empty-as-news-photo/1746583947?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>What is a “constitutional crisis”?</h2>
<p>The term “constitutional crisis” is largely undefined, although <a href="https://www.vox.com/2019/5/16/18617661/donald-trump-congress-constitutional-crisis">scholars generally agree on a few</a> of its characteristics. </p>
<p>One common factor in most historical events described as constitutional crises is that constitutionally mandated processes for resolving conflict break down or have no ready answers. Typically, constitutional crises emerge when the legislature and the president find themselves in conflict over the legality or wisdom of a particular action or policy. </p>
<p>When the legislature and the president reach such an impasse, one or the other of the branches could exercise force to achieve its preferred outcome. </p>
<p>This applies not only to the U.S. but other countries as well. In the case of Russian President Boris Yeltsin’s confrontation with the Russian Parliament <a href="https://nsarchive.gwu.edu/briefing-book/russia-programs/2018-10-04/yeltsin-shelled-russian-parliament-25-years-ago-us-praised-superb-handling">over the power of the presidency</a> in 1993, for example, Yeltsin deployed the Russian military to attack the Parliament and arrest its members. </p>
<p>In the U.S. in 1832 and 1833, conflict between the federal and state governments led President Andrew Jackson to threaten military force to ensure that federal law would be followed in South Carolina during the so-called “<a href="https://www.britannica.com/topic/nullification-crisis">nullification crisis</a>.” In that crisis, South Carolina claimed that a state could unilaterally block a federal law imposing tariffs on imports. Believing that South Carolina’s actions threatened the union and the constitutional order, Jackson proposed to send federal troops to the state to collect the tariffs. This threat of force ultimately led to South Carolina’s capitulation. </p>
<p>Clearly, the Republican standoff in Congress does not rise to the level of a crisis that might involve military force. Yet to the extent that a constitutional crisis involves the paralysis of government machinery without a readily available solution under the Constitution, the current situation in the House could qualify. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white haired man in a gray suit and bow tie sits and listens." src="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=446&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=446&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=446&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=560&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=560&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555382/original/file-20231023-15-lv228c.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=560&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Speaker Pro Tempore Patrick McHenry listens as the House of Representatives votes for a third time on whether to elevate Rep. Jim Jordan to Speaker of the House.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/speaker-pro-tempore-rep-patrick-mchenry-listens-as-the-news-photo/1746641345?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>Paralyzed Congress</h2>
<p>Because the speaker is a constitutionally mandated office whose occupant is second in line for the presidency, the role is part of the U.S. constitutional machinery. The Constitution clearly contemplates that a speaker will lead the House, although it does not define their duties, which are determined by the House’s own rules. Those rules have evolved over time to elevate the speaker’s role as central to the lawmaking functions of Congress. And without a speaker, it is not clear that Congress can fulfill its constitutional functions. At the same time, no constitutional remedy exists to solve the current impasse.</p>
<p><a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/">To enact legislation</a>, both chambers in Congress must agree on statutory language and submit the bill to the president for his approval. </p>
<p>Without the House, however, Congress will be unable to fund the federal government, which requires yearly budgetary authorization from Congress for its funding. As the nation’s largest employer, the federal government’s failure to pay its employees’ wages will cause financial disruption to millions, even if retroactive <a href="https://crsreports.congress.gov/product/pdf/IN/IN12251">pay is available afterward</a>. </p>
<p>Critical regulatory agencies that keep water clean, air breathable, roads and bridges safe and the country’s financial system operating fairly and effectively could be stalled in meeting their legal duties to the nation. </p>
<p>Other pressing national concerns, such as the <a href="https://www.washingtonpost.com/politics/2023/10/22/house-speaker-candidates-running/">opioid crisis</a>, will continue without federal legislation to address them. Efforts to support Ukraine and Israel in their battles against Russia and Hamas will be stymied. </p>
<p>A <a href="https://www.cnn.com/2023/10/21/politics/house-speaker-race-candidates/index.html">paralyzed federal government paralyzes the nation</a>, with potentially dire national and global consequences to the economy, the environment and U.S. foreign policy. The absence of a speaker – a single individual but the linchpin in Congress – could thus produce a dangerous crisis in our constitutional democracy. </p>
<p>The longer this impasse continues, the greater the threat to the constitutional order.</p><img src="https://counter.theconversation.com/content/216204/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The absence of a speaker of the House − a single individual but the linchpin in Congress − could produce a dangerous crisis in America’s constitutional democracy.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2149932023-10-04T15:06:38Z2023-10-04T15:06:38ZOuster of Speaker McCarthy highlights House Republican fractures in an increasingly polarized America<figure><img src="https://images.theconversation.com/files/552072/original/file-20231004-24-y82i7z.jpeg?ixlib=rb-1.1.0&rect=17%2C8%2C5973%2C3979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kevin McCarthy, just before he was ousted as speaker of the House. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/speaker-of-the-house-kevin-mccarthy-is-surrounded-by-staff-news-photo/1715424738?adppopup=true">Chip Somodevilla/Getty Images</a></span></figcaption></figure><p><em>The House of Representatives on Oct. 3, 2023, did something that had never been done before in the nation’s history: It <a href="https://apnews.com/article/mccarthy-gaetz-speaker-motion-to-vacate-congress-327e294a39f8de079ef5e4abfb1fa555">ousted the speaker of the House</a>. Kevin McCarthy, a California Republican, lost his job in a vote of 216 to 210. To look deeper than the surface machinations, The Conversation U.S. spoke with political scientist <a href="https://www.charlesrhunt.com/">Charles R. Hunt</a> at Boise State University.</em></p>
<p><em>He offers a sense of what this historic development might mean for the government at the moment, as well as for American democracy over the longer term.</em></p>
<h2>What does the ouster say about the House’s ability to function, such as to pass a new budget in the next 45 days?</h2>
<p>It’s important to remember what the purpose of the speaker of the House is: to literally speak for the entire House, to guide legislation through. It’s an unruly chamber of <a href="https://theconversation.com/why-the-us-house-of-representatives-has-435-seats-and-how-that-could-change-191629">435 members</a>.</p>
<p>So what you need, ideally, is someone who has the trust of the chamber – particularly of their own party, since the majority party at least traditionally has unilateral control over the business of the House. So both trust and party discipline are conducive to a smoothly functioning legislative process. </p>
<p>When Americans think of a functioning democracy, they might think of bills getting passed on time, of Congress getting things done. But voters of all party affiliations are frustrated by the gridlock here, particularly <a href="https://www.pewresearch.org/short-reads/2022/03/10/the-polarization-in-todays-congress-has-roots-that-go-back-decades/">over the past decade or two</a>. </p>
<p>The interesting thing about this situation with the speakership is that gridlock has traditionally been between the two parties. Right now, it’s within one party.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haired woman walking down a hallway, talking." src="https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/551917/original/file-20231003-23-xtl9h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rep. Nancy Mace, a Republican from South Carolina, voted to oust Kevin McCarthy as speaker.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-nancy-mace-arrives-for-a-house-republican-caucus-news-photo/1704665153?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>Do House members want to do what the public wants them to do – get things done?</h2>
<p>Americans say they <a href="https://www.pbs.org/newshour/show/new-poll-shows-americans-want-congressional-cooperation-but-expect-gridlock">don’t want</a> to be focusing on these fights. But there are members of Congress for whom these fights are really important to how they represent — like Florida Republican Matt Gaetz — who hail from very Republican districts and have staked their reputations on fighting establishment figures in their own party like Kevin McCarthy. Likewise, many Democrats back in 2019 or 2020, when they held the majority in the House, felt they had a responsibility to their mostly Democratic constituents to bring the fight to President Donald Trump.</p>
<p>For some in the GOP, there is also this ideology of smaller government, less spending, lowering the national debt – the more typical conservative Republican priorities. They are not new, but there is now this sense that being anti-establishment, and trying to wield power to its greatest possible extent, is a goal in itself.</p>
<p>Some voters have looked at how the House has operated over the past couple of decades and thought, “we don’t want any more of that.” So they are willing to put their trust in the hands of some of these people who want to, figuratively at least, burn the place down – even if there is no clear exit strategy for what happens next. The <a href="https://www.reuters.com/world/us/what-are-next-steps-us-house-searches-new-speaker-2023-10-03/">lack of a plan after McCarthy’s ouster</a> seems to show that obstruction is kind of the point.</p>
<h2>How can people understand these events in the context of America’s system of representative democracy?</h2>
<p>Gaetz has been saying he doesn’t like the process, that he wants to go back to “<a href="https://www.cbsnews.com/news/why-oust-mccarthy-matt-gaetz-remove-speaker-of-the-house/">regular order</a>,” in which budget proposals are voted on separately, instead of in huge omnibus spending bills. He and others just see that the way the House is conducting its business is not working. In Congress, those concerns are mainly coming from the far left and far right. They relate to the increasing polarization in this country, and Congress mirrors that growing division. </p>
<p>Democrats are getting more progressive, and Republicans in particular are getting more conservative over time. This is in part because <a href="https://theconversation.com/how-this-cycle-of-redistricting-is-making-gerrymandered-congressional-districts-even-safer-and-undermining-majority-rule-173103">districts are becoming more and more safe</a> for one party or the other. So the average district is less likely to produce a moderate member of Congress. That increases the influence of party primaries. The voters who participate in these elections tend to be pretty ideologically extreme Republicans and Democrats who don’t want to see their representatives working with the other side.</p>
<p>And the more polarized the country gets, the more you see this element of <a href="https://theconversation.com/bidens-dragging-poll-numbers-wont-matter-in-2024-if-enough-voters-loathe-his-opponent-even-more-204608">negative partisanship</a>, where a representative’s voters are more driven by how much their candidate is willing to fight against the other side, rather than how much they’re getting done for their own side. </p>
<h2>Why isn’t this kind of drama happening in the Senate?</h2>
<p>The cultures of the two institutions are really different, even today. George Washington is said to have described the House as a cup of hot tea that was going to overflow with the passions of the “common people,” and the <a href="https://www.senate.gov/artandhistory/history/minute/Senate_Created.htm">Senate would be the saucer</a> that would catch that overflow.</p>
<p>This session, both institutions are living up to those reputations.</p>
<p>The first reason is that House districts are smaller. They can be drawn in very specific ways and gerrymandered and are more subject to <a href="https://theconversation.com/when-it-comes-to-explaining-elections-in-congress-gerrymandering-is-overrated-201454">geographic sorting</a>, so you end up with really extreme districts, politically. </p>
<p>Whereas in the Senate, they represent whole states. They typically have to represent a lot more people than a House district, a much broader constituency. That can lead to adopting a more consensus-driven tone.</p>
<p>The rules of the Senate are also much more consensus-driven. Rules like the <a href="https://www.senate.gov/about/powers-procedures/filibusters-cloture.htm">filibuster</a> and <a href="https://www.senate.gov/about/powers-procedures/rules-procedures/first-unanimous-consent-agreement.htm">Unanimous Consent Agreements</a> can force more moderate senators to work together to reach a kind of consensus. </p>
<p>Plus, because it’s a smaller body, there is generally more collegiality. These senators know each other better, and so even between the parties you get people teaming up on legislative proposals a lot more often. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits shake hands in front of the US Capitol." src="https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=426&fit=crop&dpr=1 600w, https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=426&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=426&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/551920/original/file-20231003-19-fdn0eu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Senate is more inclined to bipartisanship than the House, as can be seen in the handshake between GOP Sen. Jerry Moran (R-KS) and Senate Majority Leader Chuck Schumer, a Democrat, after both worked to pass toxic exposure legislation in 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sen-jon-tester-looks-on-as-sen-jerry-moran-and-senate-news-photo/1403310961?adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<p>Finally, Senate leadership is less powerful. Mitch McConnell, when he was the majority leader, wielded a great amount of procedural power, and Chuck Schumer does now, but much less than the speaker does in the House. This creates a lot of the friction in the House between leadership and rank and file that you don’t typically see in the Senate.</p>
<h2>What are the key differences that help explain how these different House members are behaving?</h2>
<p>This is the big question Americans ask: Why on Earth does Congress do any of the things it does? </p>
<p>It may not seem like it, but members of Congress have incentives for doing what they do. There are the incentives of Congress as a whole. There are the incentives of the two parties, which is why they meet in their conferences and caucuses to strategize.</p>
<p>But individual members also face <a href="https://theconversation.com/voters-want-compromise-in-congress-so-why-the-brinkmanship-over-the-debt-ceiling-206465">very different pressures</a> in their different districts, even if they’re in the same party. Consider Gaetz, whose district Trump won by almost 40 points. He faces no serious challenge in a general election against a Democrat because it’s mostly Republicans in the district. The only race that really matters in this district is the primary. </p>
<p>By contrast, think of a moderate Republican from New York in a district that Joe Biden won by four or five points. This person understands that to get reelected, they need some critical mass of independents and maybe even some Democrats to support them.</p>
<p>Ultimately, the only constituency that any member of Congress must be responsive to is the one in their district. In political science, we call it <a href="https://doi.org/10.1080/07343469.2020.1811425">dyadic representation</a>. It’s a pairing, a dialogue, between a member and their constituents. And that is ultimately what they are thinking about, or, at least, they should be thinking about if they want to get reelected. This is how you get these divergent approaches to governing.</p><img src="https://counter.theconversation.com/content/214993/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charlie Hunt does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Long gridlocked by fighting between the two major political parties, the US House is now split by conflict within the GOP, thanks in part to redistricting practices that boost extremism.Charlie Hunt, Assistant Professor of Political Science, Boise State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2132412023-09-12T02:15:14Z2023-09-12T02:15:14ZYes, Labor’s misinformation bill could jeopardise free speech online<figure><img src="https://images.theconversation.com/files/547721/original/file-20230912-17-axeb80.jpg?ixlib=rb-1.1.0&rect=12%2C74%2C8231%2C5413&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In January this year, the federal government proposed legislation that seeks to curb the online spread of false and misleading information. </p>
<p>Since then, a range of experts and groups have accused the draft Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill of being vaguely worded and encouraging censorship.</p>
<p>Is this bill really an affront to free speech and, therefore, to democracy itself? And if so, how might it be strengthened to protect online expression? </p>
<h2>An overview of the bill</h2>
<p>The bill aims to amend the Broadcasting Services Act 1992 to <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">grant</a> the Australian Communications and Media Authority (ACMA) “powers to combat online misinformation and disinformation”. </p>
<p>Specifically, ACMA would be given the power to make platforms report back on the measures they are taking to combat what is sometimes called “<a href="https://www.emerald.com/insight/publication/doi/10.1108/9781801178761">fake news</a>”. Should ACMA <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">determine</a> that “stronger protections for Australians are required”, it can then alter the existing media codes of practice and introduce new codes.</p>
<p>ACMA will also <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">have the power</a> “to make an enforceable standard for all digital services providers in the relevant section[s] of the industry”. </p>
<p>The federal government has emphasised ACMA will not remove content from platforms. </p>
<p>The government has also stated the bill “seek[s] to strike a balance between the public interest in combating the serious harms that arise from the propagation of misinformation and disinformation, with freedom of speech”.</p>
<p>But some critics – including constitutional law expert <a href="https://www.theaustralian.com.au/nation/constitutional-lawyer-anne-twomey-warns-of-bills-free-speech-risk/news-story/9ff68cffc5aca09a93b30a45eb983242">Anne Twomey</a> and the <a href="https://humanrights.gov.au/about/news/opinions/why-misinformation-bill-risks-freedoms-it-aims-protect">Australian Human Rights Commission</a> (AHRC) – have argued the bill doesn’t successfully strike this balance, and may have a chilling impact on online expression. </p>
<h2>Combating fake news, or silencing expression?</h2>
<p>The bill’s problems stem largely from the definitions it uses. Both misinformation and disinformation are <a href="https://lawcouncil.au/publicassets/5b25938f-d346-ee11-948a-005056be13b5/4410%20-%20S%20-%20Combatting%20Misinformation%20and%20Disinformation.pdf">defined</a> as “information that is false, misleading or deceptive” and that “is reasonably likely to cause or contribute to serious harm”.</p>
<p>But there is a key difference between these two terms: disinformation is information that is distributed with the express purpose of deceiving others, whereas misinformation isn’t necessarily spread with deceptive intent. </p>
<p>The Law Council of Australia <a href="https://lawcouncil.au/publicassets/5b25938f-d346-ee11-948a-005056be13b5/4410%20-%20S%20-%20Combatting%20Misinformation%20and%20Disinformation.pdf">warns</a> the broadness and imprecision of key terminology in the bill may result in confusion in its application. Similarly, the AHRC <a href="https://humanrights.gov.au/about/news/opinions/why-misinformation-bill-risks-freedoms-it-aims-protect">has said</a>:</p>
<blockquote>
<p>The broad definitions used here risk enabling unpopular or controversial opinions or beliefs to be subjectively labelled as misinformation or disinformation, and censored as a result.</p>
</blockquote>
<p>Put simply, the bill could threaten freedom of speech: the ability to speak one’s mind in a public forum without the unreasonable threat of being silenced (such as via lawsuits or incarceration).</p>
<p>Freedom of speech has been <a href="https://www.tandfonline.com/doi/full/10.1080/10361146.2020.1799938?casa_token=lLy8Dh0BdWcAAAAA%3Ar8fJK3TfvgKrFQw2Uhtp3jNbjNJ-ix2Ir7tvaI8Ss88sOA576ULPWB0EBSHdhGxzST_ZoMa56-xYCw">heralded</a> as a bulwark of any robust democracy; for a democracy to function, citizens must have the right to have their say on the issues of the day.</p>
<p>In the United States, free speech is protected by the First Amendment. No such formal protection exists in Australia. Nevertheless, the AHRC <a href="https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression">notes</a>:</p>
<blockquote>
<p>the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-twitter-is-not-censoring-donald-trump-free-speech-is-not-guaranteed-if-it-harms-others-153092">No, Twitter is not censoring Donald Trump. Free speech is not guaranteed if it harms others</a>
</strong>
</em>
</p>
<hr>
<h2>Risk of ‘double standards’</h2>
<p>The risk to free speech is further heightened by the bill’s interpretation of what constitutes harm. Historically, the potential of speech to cause <a href="https://journals.sagepub.com/doi/full/10.1177/1329878X21992890?casa_token=eR4jwoaHAt8AAAAA%3A_SU7VNDFPXucu3gCHuBzhfpFO63wVn8WE_QOnkW5LGQRqgtk0RghkokhrYn74HyhYL5T81TSjzot-w">harm</a> (either physical or psychological) has been understood as one of the few reasons that speech should ever be censored. </p>
<p>The bill <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">identifies</a> one harm as being the “disruption of public order or society in Australia” – but does not clarify what such a disruption would actually entail. </p>
<p>The Media, Entertainment and Arts Alliance argues this concept of “harm” is especially vulnerable to misuse. It <a href="https://www.meaa.org/download/meaa-submission-on-misinformation-and-disinformation/">notes</a> “there is a long history of important social movements being considered ‘disruptive’ by governments and powerful interests”.</p>
<p>It’s easy to imagine online campaigns opposing Australian refugee policy, taxation laws or institutionalised racism being labelled as “misinformation” – even if they have a factual basis.</p>
<p>The bill does feature a list of exemptions, including authorised government content. This could include press releases and social media posts. </p>
<p>The Victorian Bar <a href="https://www.vicbar.com.au/sites/default/files/2023.07.28%20VB%20Submission%20-%20Communications%20Legislation%20Amendment%20Bill.pdf">posits</a> this exemption creates a “double standard” that “disadvantages critics of government in comparison with a government’s supporters”.</p>
<p>There is also the patently false implication that government information can’t be incorrect.</p>
<h2>What happens now?</h2>
<p>Despite its faults, the bill is well intentioned. As Minister for Communications Michelle Rowland <a href="https://lsj.com.au/articles/new-legislation-to-combat-online-misinformation/">rightly</a> says: </p>
<blockquote>
<p>Mis- and disinformation sows divisions within the community, undermines trust and can threaten public health and safety.</p>
</blockquote>
<p>The bill is yet to be debated in parliament, which means there’s still time for amendments to be made. In particular, the imprecision of key terminology is ripe for amendment. </p>
<p>Should the bill pass into law as it is, it could lead to censorship – endangering the very democracy it purports to defend.</p><img src="https://counter.theconversation.com/content/213241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay Daniel Thompson receives funding from the Australian Research Council for a collaborative study entitled 'Addressing online hostility in Australian Digital Cultures' (DP230100870). Dr. Thompson is also the recipient of a 2023 Herbert & Valmae Freilich Project ECR Small Grant for a project entitled ‘Digital citizenship and ethical journalistic representations of online hostility directed at women and girls’.</span></em></p>The bill, yet to be debated in parliament, is ripe for amendment.Jay Daniel Thompson, Lecturer and Program Manager, Professional Communication program, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2092062023-08-24T12:37:56Z2023-08-24T12:37:56ZCampus sexual assault prevention programs could do more to prevent violence, even after a decade-long federal mandate<figure><img src="https://images.theconversation.com/files/540550/original/file-20230801-16682-apsfw8.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C5874%2C3889&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Meghan Downey of Chatham protests on September 7, 2017, as then U.S. Education Secretary Betsy DeVos announces federal policy changes in rules for investigating sexual assault reports on college campuses.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/meghan-downey-of-chatham-new-jersey-protests-outside-as-u-s-news-photo/1029010716?adppopup=true">Lawler Duggan/For The Washington Post via Getty Images</a></span></figcaption></figure><p>Ten years after a <a href="https://safecampuses.biz/clery-act/campus-save-act/">federal law</a> required colleges and universities to <a href="https://www.acenet.edu/Documents/VAWA-Summary.pdf">offer sexual assault prevention programming</a> to students, <a href="https://doi.org/10.1007/s12103-016-9356-4">only about half</a> of them are doing it. </p>
<p>Without a national database containing standardized measures of campus sexual assault over time, it is difficult to determine whether campus sexual assault has decreased since this prevention programming requirement went into effect. One <a href="https://doi.org/10.1037/vio0000209">review of campus climate surveys</a>, designed to measure various forms of sexual misconduct at colleges and universities, revealed differences in the ways that schools measure assault. </p>
<h2>Scope and consequences of campus sexual assault</h2>
<p>A large-scale <a href="https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/Revised%20Aggregate%20report%20%20and%20appendices%201-7_(01-16-2020_FINAL).pdf">2019 campus climate survey</a> of students across 33 U.S. campuses indicated that 1 in 5 women experienced some form of sexual assault after entering college. Both women and nonbinary students, those whose gender may not align with their sex assigned at birth, were four times as likely to experience sexual assault as men.</p>
<h2>College students who are sexually assaulted face numerous consequences</h2>
<p>College students who are sexually assaulted are at risk of experiencing numerous adverse outcomes, <a href="https://doi.org/10.1177/15248380211030247">including poor academic performance</a>, <a href="https://doi.org/10.1177/15248380211032213">post-traumatic stress disorder</a>, <a href="https://doi.org/10.1177/0886260518817778">repeated sexual assault</a> and <a href="https://doi.org/10.1089/vio.2020.0033">suicidal thoughts</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing a suit and tie sits while he signs a document. Suited men stand around him watch as he signs." src="https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=525&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=525&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540551/original/file-20230801-29-678o4f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=525&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Barack Obama signs the Violence Against Women Act into law at the Department of the Interior March 7, 2013, in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-barack-obama-joined-by-vice-chairwoman-of-the-news-photo/163294804?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<p>Considering these harmful outcomes, effective sexual assault prevention programs have the potential to protect college students from a range of problems. </p>
<h2>The effects of campus sexual assault prevention programs</h2>
<p>As <a href="https://scholar.google.com/citations?user=rm9WkecAAAAJ&hl=en&oi=ao">researchers who study sexual violence</a>, we <a href="https://scholar.google.com/citations?hl=en&user=0ErXaVYAAAAJ">examined prevention programs</a> and their effects on campus sexual assault.</p>
<p><a href="https://doi.org/10.1016/j.jadohealth.2023.02.022">Our research team analyzed</a> data from 80 studies evaluating campus sexual assault prevention programs in the U.S. These programs cover a range of topics designed to educate college students about sexual assault and lower their risk of victimization and perpetration. Our analysis indicated that the most common topics discussed in these programs were alcohol use and the importance of sexual consent. Many programs also encouraged participants to be responsible “bystanders” who help when someone is at risk for assault. </p>
<p>We found that programs have a more pronounced effect on students’ attitudes and knowledge about sexual assault than on the prevention of sexual assault. The largest effect was on students’ understanding of what constitutes sexual assault. We found moderate reductions in students’ beliefs in myths that create hostility toward victims of sexual assault. There were also moderate increases in bystander intentions to help and in their confidence that they could help. The smallest significant effect was on victimization, which includes a range of behaviors such as unwanted sexual contact and rape. We found no significant effect on participants’ rates of sexual assault perpetration.</p>
<h2>Violence prevention programs have room for improvement</h2>
<p>Violence prevention programs often <a href="https://doi.org/10.1177/1077801218815778">target students’ attitudes and knowledge</a> with the intent of decreasing violence. Yet students who participated in prevention programs had only a slightly lower rate of sexual victimization than students who did not participate. Also, students who participated in programs had similar rates of perpetration than students who did not participate. </p>
<p>We analyzed studies that were released between 1991 and 2021 and found programs are no more or less effective than they were three decades ago. </p>
<p>In general, programs that we analyzed were less effective at preventing sexual victimization of participants when greater numbers of men were included in the studies. However, this is likely because men have a lower risk of being sexually assaulted than women. </p>
<p>We do not know if these programs protect LGBTQ students from assault more or less than they protect straight or cisgender students. This is because the majority of studies did not report the sexual orientation of participants, and researchers in most studies allowed students to define themselves only as men or women, without providing nonbinary options. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Four casually dressed women sit on a building’s outside stairs. A mattress with messages scrawled on it rests on the stairs before them." src="https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540553/original/file-20230801-17-emuheh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Students stand in front the Columbia University library with a mattress on Oct. 29, 2014, in support of ‘Carry That Weight,’ student Emma Sulkowicz’s project against sexual assault.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/students-stand-in-front-of-the-library-of-the-columbia-news-photo/458091210?adppopup=true">Selcuk Acar/Anadolu Agency/Getty Images</a></span>
</figcaption>
</figure>
<p>Our findings indicate that campus sexual assault prevention programs lead to only a small reduction in sexual assault. That may be because the content of many of these programs lags behind recommendations of leading authorities such as the World Health Organization. </p>
<h2>An ecological approach to campus sexual assault prevention</h2>
<p><a href="https://apps.who.int/iris/bitstream/handle/10665/42495/9241545615_eng.pdf">The World Health Organization</a> recommends a broad ecological approach to preventing violence by targeting <a href="https://www.cdc.gov/violenceprevention/sexualviolence/riskprotectivefactors.html">risk factors</a> that can exist on an individual level, in relationships, within the community and in society at large.</p>
<p>People who misuse alcohol or drugs, or who are tolerant of violence, are more likely to sexually assault someone. Having witnessed parental violence or hanging out with friends who behave in violent ways also makes someone more likely to commit sexual assault.</p>
<p>Students at colleges and universities with cultures that tolerate sexual violence are at risk for perpetrating sexual assault. Also, in broader society, gender inequity and norms that support violence can lead to sexual assault perpetration. </p>
<p>According to the ecological model, the most effective interventions target risk and protective factors that lie at the individual, relationship, community and societal levels. Most research on campus sexual assault prevention addresses factors that lie at the individual level, such as by targeting individual students’ drinking behavior. A smaller number of studies address the relationship level, such as by teaching couples to communicate in a healthy manner. In our <a href="https://doi.org/10.1016/j.jadohealth.2023.02.022">search of available research</a> evaluating campus sexual assault prevention programs, we found very few programs targeting the community or societal level. Rare examples included programs that tested campuswide policies that treat sexual assault as a serious problem.</p>
<p>As long as prevention programs continue to focus on individuals and not the broader environment, they will continue to have small effects on campus sexual assault.</p><img src="https://counter.theconversation.com/content/209206/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Heather Hensman Kettrey received funding from the US Department of Justice Office on Violence Against Women to conduct the research described in this article.</span></em></p><p class="fine-print"><em><span>Martie Thompson, Ph.D. has received funding from NIH, NSF, OVW, and NIJ, and the American Foundation for suicide Prevention</span></em></p>In the 10 years since the Campus Sexual Violence Elimination Act took effect, the measure appears to have had a greater effect on knowledge about sexual assault than on prevention.Heather Hensman Kettrey, Associate Professor of Sociology, Clemson UniversityMartie Thompson, Professor of Public Health, Appalachian State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070502023-07-27T14:26:27Z2023-07-27T14:26:27ZPesticides are harming Nigeria: it’s time to update the law<figure><img src="https://images.theconversation.com/files/537783/original/file-20230717-207908-ow9gwb.jpg?ixlib=rb-1.1.0&rect=40%2C0%2C4464%2C2926&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Without strict regulation, farmers misuse pesticides. Kola Sulaimon/AFP/</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/godwin-teremun-a-rice-farmer-fumigates-his-farm-after-news-photo/1234769539?adppopup=true">Getty Images</a></span></figcaption></figure><p>The European Union has banned the use of several pesticides, and heavily restricted others. This is because of their potential health effects or environmental contamination, or because there’s not enough data to be sure that they aren’t harmful. Over <a href="https://ng.boell.org/sites/default/files/2023-03/pesticideatlas2022_nigeria_compressed.pdf#page=16">50%</a> of these pesticides are still registered in Nigeria, however. </p>
<p>Nigeria’s use of such pesticides is the reason some markets, including the EU and the US, <a href="https://von.gov.ng/nigerian-government-strategizes-to-lift-eu-ban-on-agricultural-export/">reject</a> the country’s agricultural products. Yet some countries with strict regulations at home still export the banned pesticides to countries like Nigeria. </p>
<p>As a <a href="https://www.uottawa.ca/faculty-law/common-law/research/postdoctoral-studies/sparking-conversation/meet-jane-ezirigwe">researcher</a> in the field of food and agricultural law, international trade and natural resource development, I’ve <a href="https://www.jutajournals.co.za/legal-and-policy-measures-to-curtail-harmful-use-of-agrichemicals-in-nigeria/">explored</a> the laws and regulations that govern the use of pesticides. My research highlights the gaps that undermine export opportunities.</p>
<p>I identified four major factors that make Nigeria’s pesticide regulations ineffective. They are: outdated laws; overlapping regulatory functions; resource limitations; and the influence of multinationals.</p>
<p>Good pesticide regulation should do three main things: protect people and the planet, support effective pest control, and provide redress when harm occurs. </p>
<p>Better regulation will make Nigeria’s agricultural products safer for local consumption and export.</p>
<h2>Limiting factors</h2>
<p><strong>Outdated laws:</strong> Nigeria’s laws are <a href="https://www.jutajournals.co.za/legal-and-policy-measures-to-curtail-harmful-use-of-agrichemicals-in-nigeria/">outdated</a>. The laws that regulate pesticides do not stop Nigerians from importing banned chemical products. </p>
<p>More than half of the products approved by the National Agency for Food and Drug Administration and Control, the principal agency for pesticides control, contain harmful active ingredients banned by the European Union. </p>
<p>There are no provisions to hold manufacturers accountable for the negative impact of hazardous pesticides. No law requires people to use personal protective equipment when applying pesticides. And there’s no legal duty to monitor residue in food. </p>
<p><strong>Overlapping regulatory functions:</strong> The agencies regulating pesticide use in Nigeria don’t work together. Some of their functions overlap and other functions are neglected. A national pesticide policy was <a href="https://punchng.com/naqs-to-unveil-nigerias-first-national-pesticide-policy/">announced</a> in March 2019 to help coordinate what they do. But it hasn’t been put into practice. </p>
<p>The regulators and civil society organisations that are supposed to enforce rules and protect consumers don’t collaborate either. The regulatory agencies could get valuable insights and feedback from farmers’ associations, for example. This lack of cooperation makes it harder to develop and use robust regulations.</p>
<p><strong>Resources and financial limitations:</strong> Agencies of government are unable to function effectively because of limited financial and human resources. For example, they may not have adequate machinery and laboratories to test products. </p>
<p><strong>Influence of multinationals:</strong> Big multinational companies have a lot of power. For instance, the proposed bill to establish a pesticides council reserves two seats for an internationally affiliated association, CropLife Nigeria.</p>
<p>CropLife comprises private companies like Syngenta and Bayer that manufacture highly hazardous pesticides. Council members can make decisions and provide strategic direction. With CropLife as a council member, the regulated becomes part of the regulator. Instead, the council should consist of neutral and independent organisations from the scientific and academic communities. </p>
<h2>Why effective regulation matters</h2>
<p>In 2020, over 270 people <a href="https://www.dw.com/embed/480/av-59457934">died</a> from pesticide poisoning of a community river in Benue State. </p>
<p>A recent <a href="https://ng.boell.org/sites/default/files/2022-12/swofon-survey-final-draft.pdf">survey</a> by the Alliance for Action on Pesticide in Nigeria and Small-scale Women Farmers Organisation in Nigeria showed that <a href="https://ng.boell.org/sites/default/files/2022-12/swofon-survey-final-draft.pdf#page=3">80%</a> of the pesticides used most frequently by small-scale farmers were hazardous. Seventy-five percent of the women farmers in the survey reported symptoms from using pesticides. They include respiratory and eye problems, dizziness, vomiting and skin rashes. </p>
<p>Without strict regulation and enforcement, farmers might misuse or overuse pesticides in farms and storerooms. This would lead to <a href="https://www.ajol.info/index.php/ijs/article/view/156080/145706">environmental contamination and health hazards</a> for farmers and consumers. </p>
<p>The average Nigerian consumer is unaware of the amount of pesticides in the food they consume. But Nigeria’s food exports are tested regularly, and pesticide residues far exceed maximum limits on some crops. </p>
<p>These regulatory lapses have blocked export opportunities. Since 2015, the European Union has <a href="https://von.gov.ng/nigerian-government-strategizes-to-lift-eu-ban-on-agricultural-export/#:%7E:text=(The%20EU%20in%20June%2C%202015,be%20dangerous%20to%20human%20health).">banned</a> agricultural products from Nigeria that contain pesticide residues. These <a href="https://www.premiumtimesng.com/news/more-news/233055-eu-rejected-24-nigerian-products-in-2016-nafdac.html?tztc=1">include</a> groundnut, palm oil, sesame seed and beans.</p>
<p>Weak regulations also make Nigeria vulnerable to becoming a <a href="https://ng.boell.org/sites/default/files/2021-02/Time%20for%20a%20Detox%20in%20Agriculture_2021.pdf">dumping ground</a> for internationally banned and counterfeit pesticides. </p>
<h2>What needs to be done</h2>
<p>Nigeria can learn from <a href="https://ipen.org/news/tunisia-should-move-ban-33-dangerous-pesticides">Tunisia</a>, <a href="https://beyondpesticides.org/dailynewsblog/2020/07/mexico-announces-glyphosate-roundup-phaseout">Mexico</a> and <a href="https://eu.boell.org/en/PesticideAtlas-imports-exports">Palestine</a>. They have passed laws that prohibit pesticides that are banned in the countries that make or export them. </p>
<p>The legal community should engage in public interest litigation to hold manufacturing companies accountable for harm caused by pesticides. </p>
<p>The government should do more to inform farmers, pest control operators and extension officers. A community-based, hands-on safety programme will be more effective than formal training.</p>
<p>Food consumers also need to know about pesticide residues in food. The media should inform the public.</p>
<p>Lastly, <a href="https://www.vanguardngr.com/2023/04/high-applications-of-pesticides-puts-nigerian-consumers-at-risk-report/">alternatives to toxic pesticides exist</a> and should be promoted as good ways to manage pests. </p>
<p>These steps will give Nigerian agricultural products a better chance of acceptance in the international market. </p>
<p><em>Ofoegbu Donald Ikenna, senior programme manager, Sustainable Nigeria programme, Heinrich Boell Stiftung (hbs) Nigeria office, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/207050/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Ezirigwe does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nigeria’s agricultural products are banned by many western countries because of toxic pesticides. Good regulation can address the problem.Jane Ezirigwe, Postdoctoral Fellow, L’Université d’Ottawa/University of OttawaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2062592023-06-01T15:37:24Z2023-06-01T15:37:24ZListen: Trans scholar and activist explains why trans rights are under attack<iframe height="200px" width="100%" frameborder="no" scrolling="no" seamless="" src="https://player.simplecast.com/e2ecabe1-cf01-433c-bd7e-7aac7f1d241a?dark=true"></iframe>
<p>This year we’ve seen an aggressive push to implement anti-trans legislation across the United States. There are currently more than <a href="https://translegislation.com/">400 active anti-trans</a> bills across the country. </p>
<p>Some of the legislation <a href="https://time.com/6265755/gender-affirm-care-bans-u-s/">denies gender-affirming care to youth</a> – and criminalizes those health-care providers that attempt to do so. Other bills <a href="https://apnews.com/article/transgender-nonbinary-hormone-puberty-missouri-lawmakers-5a8922430ffab9e43cf9b7ce254bff9f#:%7E:text=Charlie%20Riedel%2C%20File">block trans students from participating in sports</a> and still others have banned books with trans content. </p>
<p>These bills have at least two things in common. They all aim to make being trans harder in an already hostile society and they are being spearheaded by the far-right. </p>
<p>Where does anti-trans sentiment come from? </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529186/original/file-20230530-23-atrb5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Black Lives Matter activists organize a sit-in at Yonge Street and College Street during the Trans Pride March, in Toronto, 2016. (THE CANADIAN PRESS/Eduardo Lima)</span>
</figcaption>
</figure>
<p>The <a href="https://www.thenation.com/article/society/transphobia-white-supremacy/">enforcement of a gender binary</a> likely has much to do with the preservation of white power. And, <a href="https://www.advocate.com/commentary/2022/5/20/through-line-critical-race-dont-say-gay-great-replacement">violence</a> against trans people continues as a result. </p>
<h2>Is Canada better?</h2>
<p>What do things look like in Canada? Are we a safe haven or are we following some of the same trends?</p>
<p>Recently, a <a href="https://www.cbc.ca/news/canada/us-transgender-asylum-petition-1.6779692">petition</a> signed by <a href="https://petitions.ourcommons.ca/en/Petition/Details?Petition=e-4268">over 160,000 people</a> asked the Canadian government to extend asylum to trans and gender non-conforming people from nations in the West, previously considered safe. </p>
<p>To get a better understanding of trans histories in Canada, <a href="https://dont-call-me-resilient.simplecast.com/episodes/listen-to-an-american-canadian-trans-scholar-and-activist-explain-why-trans-rights-are-under-attack">we are joined by Syrus Marcus Ware</a>, an artist, activist and assistant professor at the School of the Arts at McMaster University. He is a co-curator of Blockorama/Blackness Yes! and a co-editor of <a href="https://uofrpress.ca/Books/U/Until-We-Are-Free"><em>Until We Are Free: Reflections on Black Lives Matter in Canada</em></a>.</p>
<p>We discuss the history of anti-trans and queer actions in Canada. We also speak about backlash and ways to move forward.</p>
<h2>Listen and Follow</h2>
<p>You can listen to or follow <em><a href="https://dont-call-me-resilient.simplecast.com/episodes/listen-to-an-american-canadian-trans-scholar-and-activist-explain-why-trans-rights-are-under-attack">Don’t Call Me Resilient</a></em> on <a href="https://podcasts.apple.com/ca/podcast/dont-call-me-resilient/id1549798876">Apple Podcasts</a>, <a href="https://podcasts.google.com/feed/aHR0cHM6Ly9mZWVkcy5zaW1wbGVjYXN0LmNvbS9qZFg0Ql9DOA">Google Podcasts</a>, <a href="https://open.spotify.com/show/37tK4zmjWvq2Sh6jLIpzp7">Spotify</a> or <a href="https://dont-call-me-resilient.simplecast.com">wherever you listen to your favourite podcasts</a>. </p>
<p><a href="mailto:DCMR@theconversation.com">We’d love to hear from you</a>, including any ideas for future episodes. Join The Conversation on <a href="https://twitter.com/ConversationCA">Twitter</a>, <a href="https://www.facebook.com/TheConversationCanada">Facebook</a>, <a href="https://www.instagram.com/theconversationdotcom/">Instagram</a> and <a href="https://www.tiktok.com/@theconversation">TikTok</a> and use #DontCallMeResilient.</p>
<figure class="align-center ">
<img alt="A person with a rainbow on their shirt holds up a hand with a pointed finger and a sign in the other hand. They appear to be yelling." src="https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529465/original/file-20230531-24-q99it2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Brenna Thompson protests this month against an abortion ban and restrictions on gender-affirming care for children in Lincoln, Neb.</span>
<span class="attribution"><span class="source">Justin Wan/Lincoln Journal Star via AP/KOLN-TV OUT</span></span>
</figcaption>
</figure>
<h2>Resources</h2>
<p><a href="https://doi.org/10.1215/23289252-3814961">All Power to All People? Black LGBTTI2QQ Activism, Remembrance, and Archiving in Toronto</a> (<em>Transgender Studies Quarterly</em>) by Syrus Marcus Ware </p>
<p><a href="https://www.thestar.com/news/gta/2023/05/30/pride-flag-wont-fly-at-york-catholic-schools-after-board-votes-against-the-motion.html">‘A travesty’: Outrage swells over York Catholic board’s rejection of Pride flag</a> (<em>Toronto Star</em>) </p>
<p><a href="https://www.thestar.com/opinion/contributors/2022/10/05/supreme-court-cant-ignore-equality-rights-claims-of-refugees.html">Supreme Court can’t ignore equality rights claims of refugees</a> (<em>Toronto Star</em>) </p>
<p><a href="https://xtramagazine.com/power/toronto-bathhouse-raids-40-years-194590">Everything you need to know about the Toronto bathhouse raids</a> (<em>Xtra</em>) </p>
<p><a href="https://xtramagazine.com/power/what-the-national-inquiry-into-missing-and-murdered-indigenous-women-and-girls-means-for-two-spirit-canadians-158992">What the National Inquiry into Missing and Murdered Indigenous Women and Girls means for Two-Spirit people</a> (<em>Xtra</em>) </p>
<p><a href="https://doi.org/10.1215/10642684-2009-015">Settler Homonationalism: Theorizing Settler Colonialism within Queer Modernities</a> (<em>Journal of Lesbian and Gay Studies</em>) by Scott Lauria Morgensen </p>
<p><a href="https://blockorama.ca/">Blockorama/Blackness Yes!</a></p>
<h2>From the archives - in The Conversation</h2>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/transgender-hate-crimes-are-on-the-rise-even-in-canada-121541">Transgender hate crimes are on the rise even in Canada</a>
</strong>
</em>
</p>
<hr>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/cuts-to-telehealth-in-ontario-mean-fewer-trans-and-non-binary-people-will-have-access-to-life-saving-health-care-198502">Cuts to telehealth in Ontario mean fewer trans and non-binary people will have access to life-saving health care</a>
</strong>
</em>
</p>
<hr>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/i-went-to-cpac-to-take-maga-supporters-pulse-china-and-transgender-people-are-among-the-top-demons-they-say-are-ruining-the-country-201442">I went to CPAC to take MAGA supporters' pulse – China and transgender people are among the top 'demons' they say are ruining the country</a>
</strong>
</em>
</p>
<hr>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/right-to-party-20-years-of-black-queer-love-and-resilience-80040">Right to party: 20 years of Black Queer love and resilience</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/206259/count.gif" alt="The Conversation" width="1" height="1" />
This year, there are more than 400 active anti-trans bills across the U.S. What do things look like in Canada? Are we a safe haven or are we following those same trends?Vinita Srivastava, Host + Producer, Don't Call Me ResilientBoké Saisi, Associate Producer, Don't Call Me ResilientLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2061032023-05-24T20:10:31Z2023-05-24T20:10:31ZLaws targeting protesters are being rushed through state parliaments. But they are often poorly designed and sometimes, unconstitutional<figure><img src="https://images.theconversation.com/files/527648/original/file-20230523-12830-mwr9cw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Matt Turner/ AAP</span></span></figcaption></figure><p>Across Australia, climate activists are testing the limits of what counts as lawful protest, in addition to the patience of commuters as their actions shut down roads or disrupt businesses. Authorities are responding with new police powers and increasingly harsh new penalties. </p>
<p>The speed at which these new laws are made and their impact on the <a href="https://www.cambridge.org/core/books/abs/commentary-on-the-international-covenant-on-civil-and-political-rights/article-21-freedom-of-assembly/D88AAE87088D4D11C180D87CB02638F0">right to protest</a> are alarming.</p>
<p>Last week in Adelaide, an Extinction Rebellion activist <a href="https://www.theguardian.com/australia-news/2023/may/18/south-australia-anti-protest-laws-activists-rally-oil-gas-appea-conference-adelaide">dangled off a city bridge</a> as part of a protest timed to coincide with a meeting of major oil and gas companies. Commuters along busy North Terrace were held up by road blocks set up by emergency services in response to the stunt. The activist was charged with several offences, <a href="https://www.legislation.sa.gov.au/__legislation/lz/c/a/summary%20offences%20act%201953/current/1953.55.auth.pdf">including obstructing a public place</a>. </p>
<p>The opposition in the state immediately called for tougher penalties for protesters who cause traffic chaos. The next day, the South Australian government <a href="https://www.legislation.sa.gov.au/__legislation/lz/b/current/summary%20offences%20(obstruction%20of%20public%20places)%20amendment%20bill%202023/c_as%20received%20in%20lc/summary%20places%20amendment%20bill%202023.un.pdf">introduced amendments</a> to the Summary Offences Act 1953 (SA) that could see protesters hit with fines of $50,000 (up from $750) or three months imprisonment. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527659/original/file-20230523-19-nxcw4z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Hundreds of students have taken part in rallies across Australia for climate action.</span>
<span class="attribution"><span class="source">Matt Turner/ AAP</span></span>
</figcaption>
</figure>
<p>Protesters caught by the new laws could also be liable for paying the costs of any police and other emergency services called to the scene. These amendments were passed by the House of Assembly in Adelaide by lunchtime. In a matter of hours, the right to protest in South Australia sustained a grievous blow. And the laws are not limited to protesters – they can apply to any person who directly or indirectly obstructs free passage in a public place.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/draconian-and-undemocratic-why-criminalising-climate-protesters-in-australia-doesnt-actually-work-185961">‘Draconian and undemocratic’: why criminalising climate protesters in Australia doesn't actually work</a>
</strong>
</em>
</p>
<hr>
<p>Both major parties were prepared to pass changes they barely had time to read, let alone scrutinise. There’s no human rights legislation in South Australia to slow down the race to legislate, and not even an requirement to publish explanatory material about the new law. </p>
<p>This type of <a href="https://indaily.com.au/opinion/2023/05/22/the-community-impact-of-kneejerk-lawmaking/">knee-jerk lawmaking</a> in response to climate protests has occurred in other states too. </p>
<p>In <a href="https://www.legislation.qld.gov.au/view/pdf/asmade/act-2019-035#:%7E:text=This%20Act%20may%20be%20cited,Other%20Legislation%20Amendment%20Act%202019.&text=This%20part%20amends%20the%20Police%20Powers%20and%20Responsibilities%20Act%202000.&text=(k)%20the%20person%20has%20something,disrupt%20a%20relevant%20lawful%20activity.">Queensland</a>, laws have been introduced to make sure protesters who clamped themselves to buildings or other bits of the city could be hit with bigger fines and longer jail terms. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1660823848135319552"}"></div></p>
<p>In <a href="https://www.abc.net.au/news/2022-04-01/nsw-new-protest-laws-target-major-economic-disruption/100960746">New South Wales</a>, harsher penalties have been introduced to target protesters whose actions disrupted businesses and other economic activity. <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1993-033#sec.144G">These laws</a> mean that people can be fined up to $22,000 or jailed for up to two years for protesting illegally on public roads, rail lines, tunnels, bridges and industrial estates. </p>
<p>And in <a href="https://www.abc.net.au/news/2022-08-25/tasmania-anti-protest-laws-watered-down-in-upper-house/101366292">Tasmania</a>, anti-protest laws have been introduced to specifically target activists looking to disrupt logging activities by increasing penalties for anyone who obstructs employees from carrying out their work or causing a risk to worker safety.</p>
<p>These laws are designed to send a “zero tolerance” message to climate activists. </p>
<p>Using the threat of jail and crippling fines, authorities want to stop people from dangling from bridges, clamping themselves to buildings or chaining themselves to trees. They also want to help the commuters stuck in traffic, or the forestry workers locked out of their machines. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527651/original/file-20230523-25-t2du5z.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In less than a day after a rally outside the annual oil and gas conference in Adelaide, the government introduced changes to the Summary Offences Act.</span>
<span class="attribution"><span class="source">Morgan Sette/ AAP</span></span>
</figcaption>
</figure>
<h2>No compromise on right to protest, environment conservation</h2>
<p>The problem is, when these laws are rushed through parliament, they are often poorly designed and sometimes, unconstitutional. They can also be unpopular.</p>
<p>This is because in the rush to respond to public outrage at the actions of protesters, politicians underestimate how much Australians care about the environment, and the right to peaceful protest. </p>
<p>This is playing out in the <a href="https://www.abc.net.au/news/2023-05-19/unions-and-human-rights-groups-slam-sa-protest-law-change/102367076">backlash</a> to the new anti-protest laws in South Australia and in the <a href="https://www.canberratimes.com.au/story/8182936/magistrate-labels-violet-cocos-protesting-noble/">judicial and public response</a> to the sentencing of protester Deanna “Violet” CoCo in New South Wales.</p>
<p>These rushed laws also underestimate the reach of the <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/MULR/2004/14.html">implied freedom of political communication in our Constitution</a>, which has been tested in a range of contexts.</p>
<p>Previous versions of anti-protest laws in Tasmania have been struck down by the High Court for going too far when it comes to imposing penalties on activists seeking to disrupt workplaces, with some judges taking <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/MonashULawRw/2018/16.html">a strong interest</a> in the powers given to police and other authorities under these laws. </p>
<p>For example, in <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/43.html?context=1;query=brown%20v%20tasmania;mask_path=">Brown v Tasmania</a>, Chief Justice Kiefel and Justices
Bell and Keane explained that anti-protesting laws that are drafted in vague terms, and are highly dependent on police interpretation on the ground, risk capturing or deterring lawful protests. When this happens, the laws may no longer be considered proportionate, and may be incompatible with our constitutionally protected system of representative democracy.</p>
<p>The concept of representative democracy is fiercely defended by the High Court, which means that although we don’t have a constitutional right to protest, we do have an implied freedom to communicate about political matters that might impact who we vote for. </p>
<p>The laws introduced in NSW in 2022 are also <a href="https://www.theguardian.com/australia-news/2022/oct/13/integral-part-of-democracy-climate-activists-mount-court-challenge-to-nsw-anti-protest-laws">being challenged</a> on the basis that they may breach the implied freedom of political communication protected in the constitution. </p>
<figure class="align-center ">
<img alt="picture of a woman activist chanting slogans on the street while police overlooks" src="https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527650/original/file-20230523-14905-pmhmmf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Climate protester Deanna</span>
<span class="attribution"><span class="source">Bianca De Marchi/AAP</span></span>
</figcaption>
</figure>
<h2>The community backlash</h2>
<p>The common element in the community backlash to these laws and the constitutional challenges is <a href="http://classic.austlii.edu.au/au/journals/AdelLawRw/2018/19.html">proportionality</a>. </p>
<p>Proportionality is a <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/2-rights-and-freedoms-in-context/justifying-limits-on-rights-and-freedoms-2/#:%7E:text=are%20discussed%20below.-,Proportionality,and%20statutory%20bills%20of%20rights.">human rights concept</a> that means we think about whether the new law is necessary, whether it will work in practice and what impact it will have on other rights and values we care about in our democracy. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-do-we-want-charting-the-rise-and-fall-of-protest-in-australia-68436">What do we want? Charting the rise and fall of protest in Australia</a>
</strong>
</em>
</p>
<hr>
<p>People get rightly get frustrated when their drive to work or school takes three hours longer than usual because of protests. But recent surveys suggest there’s a good chance these same people <a href="https://www.ipsos.com/sites/default/files/ct/publication/documents/2022-04/Ipsos%20Climate%20Change%20Report%202022.pdf">also care about climate change</a> and don’t want their kids to inherit a dead planet. They certainly don’t want their kids to live in a country where speaking out against the government lands you in jail or bankrupts you. </p>
<p>If we are going to stand any chance against the complex challenges that climate change poses to our way of life, we need parliamentarians who take their representative roles seriously, and take the time to listen to the community. </p>
<p>We need parliaments interested in making proportionate laws rather than breaking legislative speed limits.</p><img src="https://counter.theconversation.com/content/206103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Moulds has previously received funding from the Law Foundation of South Australia. She is the current Director of the volunteer-based Rights Resource Network SA and a member of the Law Society of South Australia. </span></em></p>As parliamentarians rush to formulate new tougher laws to confront protesters in a bid to protect business, do we not care about our right to protest and protect environment?Sarah Moulds, Senior Lecturer of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2036522023-04-17T20:03:41Z2023-04-17T20:03:41ZWhy can’t we just establish the Voice to Parliament through legislation? A constitutional law expert explains<p><em>We asked our readers what they would like to know about the proposed Indigenous Voice to Parliament. In the lead-up to the referendum, our expert authors will answer those questions. You can read the other questions and answers <a href="https://theconversation.com/your-questions-answered-on-the-voice-to-parliament-200818">here</a>.</em></p>
<hr>
<p>It would be possible for the federal parliament to establish an Indigenous Voice by passing ordinary legislation. But such a body would be <a href="https://www.indigconlaw.org/home/naidoc-week-2021-why-a-legislated-voice-is-not-a-constitutionally-enshrined-voice-to-parliament">fundamentally different</a> from the constitutionally enshrined Voice we are being asked to approve at a referendum later this year.</p>
<p>First, only a constitutional Voice responds to the call for reform set out in the <a href="https://www.referendumcouncil.org.au/final-report.html#toc-anchor-ulurustatement-from-the-heart">Uluru Statement from the Heart</a>. That document was endorsed at the 2017 National Constitutional Convention at Uluru, which was the culmination of a grassroots process comprising 13 regional dialogues and involving more than 1,200 First Nations people. </p>
<p>The Uluru Statement calls for “the establishment of a First Nations Voice enshrined in the Constitution” as the first step of a reform process that also encompasses treaty-making and truth-telling.</p>
<p>Second, the act of establishing a Voice in the Constitution provides Aboriginal and Torres Strait Islander peoples with a form of constitutional recognition. This is explicit in the <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr7019_first-reps%2F0001;query=Id%3A%22legislation%2Fbills%2Fr7019_first-reps%2F0000%22;rec=0">proposed amendment</a> released by the government. Currently, the Australian Constitution makes no mention of the continent’s first peoples.</p>
<p>Third, constitutional change gives the Voice security and certainty. Once established, the Voice could only be abolished if Australians agreed to that at another referendum. By contrast, a legislative Voice would be far more vulnerable. A future government could get rid of it by passing an ordinary law. To do that, it would only need to win the support of a majority of members in the House of Representatives and the Senate.</p>
<p>Fourth, constitutional change will confer on the Voice a strong popular legitimacy that is not achievable through ordinary legislative change. The direct approval of the people at a referendum would bestow on the Voice a special credibility and authority. That would give additional political force to the representations of the Voice, even as the parliament and government would be free to ignore them. And the presence of the Voice in the nation’s highest law would speak to its standing.</p>
<p>Finally, constitutional change gives the Voice the best chance of being effective. A body that has been endorsed by First Nations people and the wider public, and enjoys the security and legitimacy that constitutional amendment provides, promises to have the most lasting and meaningful impact.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520977/original/file-20230414-114-t3qmkw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The enshrinement of an Indigenous Voice to Parliament in the Australian Constitution was a specific call of the Uluru Statement from the Heart.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
</figcaption>
</figure>
<h2>Why can’t the Voice be legislated and piloted for a few years, then put to a referendum?</h2>
<p>It would be possible to establish an Indigenous consultative body by legislation and then subsequently hold a referendum to enshrine it in the Constitution. We could imagine this might help to familiarise some Australians with the idea of an Indigenous Voice before voting on it.</p>
<p>However, there are shortcomings to this approach that arguably outweigh any benefits it might bring. As the Uluru Statement makes clear, First Nations people have called for a Voice that is enshrined in the Constitution. That demand is not met by a legislated body.</p>
<p>Even if a sincere government pledged to put a legislated Voice to a vote after a trial period, there would be no guarantee the referendum would go ahead. After all, the priorities and composition of our governments and parliament change rapidly. There would be a risk that Indigenous people would be stuck with another representative body that, like ATSIC before it, could be dissolved with the stroke of a pen.</p>
<p>The lessons of any pilot period would also be limited. A statutory Voice would have a relatively weak standing and legitimacy. It could not be expected to speak as loudly as a constitutional body. As such, Australians could come to the end of the pilot period without a clear idea of the impact that a constitutional Voice might have on laws and policies.</p>
<p>Moreover, a pilot period would not necessarily provide Australians with greater certainty about the details of the Voice’s operation. The fact remains that parliament would retain the power to alter the Voice’s composition, functions, powers and procedures. The people might vote at the referendum with the “pilot” Voice in their mind, only to find the subsequent constitutional version takes a different shape.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">What happens if the government goes against the advice of the Voice to Parliament?</a>
</strong>
</em>
</p>
<hr>
<h2>What legislation is ever debated in parliament that does NOT affect indigenous people?</h2>
<p>The proposed Voice covers a broad range of policy areas. It would be able to make representations to the parliament and the executive government “on matters relating to Aboriginal and Torres Strait Islander peoples”.</p>
<p>As the <a href="https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7019_ems_30a282a6-7b5a-4659-b9cb-13da5698bca1/upload_pdf/JC009279.pdf;fileType=application%2Fpdf">Explanatory Memorandum</a> to the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7019">Constitution Alteration Bill</a> explains, this wording captures both matters specific to Indigenous peoples (such as native title) as well as more general matters “which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community”. For instance, general election laws would fall within the scope of the Voice because of the disproportionately low enrolment and participation rates of First Nations people.</p>
<p>Some have argued this remit is too broad, potentially allowing the Voice to give advice on almost any issue. The opposition has <a href="https://www.theguardian.com/australia-news/2023/mar/27/anthony-albanese-criticises-very-strange-question-on-whether-voice-will-have-input-on-energy-policy">said</a> the Voice could present its views, for example, on the setting of interest rates or the formulation of climate policy.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1640207385510948865"}"></div></p>
<p>Supporters of the government’s proposal <a href="https://www.theaustralian.com.au/inquirer/indigenous-voice-to-parliament-only-works-if-its-free-to-choose-what-to-talk-about/news-story/8361479386a83d8f569640a25622e4fd">argue</a> it is both necessary and appropriate for the Voice to be able to speak on a wide range of matters. It is said that a broad remit will ensure that the Voice facilitates the <a href="https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7019_ems_30a282a6-7b5a-4659-b9cb-13da5698bca1/upload_pdf/JC009279.pdf;fileType=application%2Fpdf">participation</a> of Indigenous peoples in the making of laws and policies that affect them. </p>
<p>Proponents say it is impossible to know in advance the sorts of issues that First Nations people will see as being of interest or concern, and that those issues are likely to evolve over time. They also argue that a narrow remit could prompt legal challenges as disputes arise over what matters fall within scope.</p>
<p>In practical terms, the proposed Voice will not be able to make representations on all matters that fall within its remit. It will need to decide which matters deserve priority and focus its attention and resources on them. </p>
<p>And if the Voice wishes to be heard, and not just to speak, it may find that it can have most impact by focusing on matters that have specific significance for Indigenous peoples. Under the government’s proposal, it will be up to the Voice to make that calculation. As Robert French, former Chief Justice of the High Court of Australia, has <a href="https://www.auspublaw.org/first-nations-voice/the-voice-a-step-forward-for-australian-nationhood">observed</a>: “[The Voice’s] limits are likely to be defined by common sense and political realities”.</p><img src="https://counter.theconversation.com/content/203652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Kildea has previously received funding from the Australian Research Council.</span></em></p>Legislation is an unsatisfactory way to institute a Voice to Parliament because, among other reasons, it would make the body insecure and vulnerable to the whims of different governments.Paul Kildea, Associate Professor, Faculty of Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1973772023-01-06T20:41:25Z2023-01-06T20:41:25ZKevin McCarthy voted Speaker of the House on 15th vote — we had some questions about the chaotic week in Congress and got a few answers<figure><img src="https://images.theconversation.com/files/503466/original/file-20230106-10576-dl05sk.jpg?ixlib=rb-1.1.0&rect=17%2C49%2C2977%2C2029&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">More jaw-jaw needed to end the GOP speaker war, Mr. McCarthy?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/house-republican-leader-kevin-mccarthy-listens-to-floor-news-photo/1454652559?phrase=mccarthy%20speaker&adppopup=true">Photo by Win McNamee/Getty Images</a></span></figcaption></figure><p><em>Editor’s note: This article was published prior to a 15th vote in the House of Representatives that saw Rep. Kevin McCarthy of California elected as House Speaker in the early hours of Jan. 7, 2023. It still has lots of super interesting information and analysis in it though, so please do read on.</em></p>
<hr>
<p><em>It is fair to say that the <a href="https://www.npr.org/sections/pictureshow/2023/01/04/1146795995/photos-first-day-118th-congress">beginning of the 118th U.S. Congress</a> has not gone entirely to plan.</em></p>
<p><em>In the space of four days, members-elect of the House of Representatives have held more than a dozen votes over who would take on the role of speaker. Yet, as of Jan. 6, 2023, <a href="https://www.cnbc.com/2023/01/06/live-updates-on-house-speaker-vote-gop-leader-mccarthy-fights-for-his-political-future-in-historic-battle-for-the-gavel.html">the position remains unfilled</a>.</em></p>
<p><em>As a result, representatives have not been sworn in to start the job they were elected to do. The sticking point: A dwindling group of holdout conservatives in the GOP are refusing to toe the line and fall behind the party leadership’s preferred candidate, Rep. Kevin McCarthy of California.</em></p>
<p><em>The Conversation had a plethora of questions over what this means for governance, and the authority of the speaker – whoever that may be. So we put them to Rachel Paine Caufield, an <a href="https://www.drake.edu/polsci/facultystaff/rachelpainecaufield/">expert on all thing Congress at Drake University</a>.</em></p>
<h2>Can the House do any other business while there is no speaker?</h2>
<p>In short, no. The only business being done in the U.S. House of Representatives at the moment is voting for the role of speaker.</p>
<p>No other business can proceed until a speaker is in place. And this is for one very simple reason: No representatives can be sworn in until there is a speaker. So right now we have <a href="https://www.wkyc.com/article/news/verify/government-verify/united-states-house-of-representatives-speaker-oath-swear-in-fact-check/536-07e2ace3-8d8b-4ae8-ad8f-59d31f5b92d7">no formal representatives serving</a> in the House of Representatives, and as a result no one has the legal authority in the House to carry out the work of government.</p>
<p>Other usual House activity, such as briefings on issues including security, is also not happening. Would-be representatives can’t be briefed yet because they have not been sworn in.</p>
<p>They can still meet with constituents. But they can’t make any formal request of government, because they are just representatives-elect until they are sworn in – and that applies to both new members of the House as well as returning members.</p>
<h2>Does it affect the Senate?</h2>
<p>The Senate can still operate, and there are certain things the <a href="https://www.senate.gov/about/powers-procedures.htm">Senate alone is responsible for</a>, such as ratifying treaties and confirming judicial nominees.</p>
<p>But any legislation needs to go through both the Senate and the House – so no laws can be passed until a speaker is in place.</p>
<h2>Can unofficial business be done in the House?</h2>
<p>Certainly representatives are meeting while this situation is going on. My guess would be that the Democrats – who are <a href="https://www.npr.org/2023/01/04/1146960921/hakeem-jeffries-is-the-first-black-lawmaker-nominated-for-speaker-of-the-house">unified in their support of Hakeem Jeffries</a> as their nominee for speaker – are having conversations about future legislative activity.</p>
<figure class="align-center ">
<img alt="People chat while seated on brown benches." src="https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=513&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=513&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503470/original/file-20230106-9864-t8f7vg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=513&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">GOP conservative holdouts Lauren Boebert and Matt Gaetz (right).</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-elect-jim-jordan-rep-elect-lauren-boebert-and-rep-elect-news-photo/1246010287?phrase=boebert%20gaetz&adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>For the Republicans, the priority right now is how to navigate this impasse over the speaker position. But don’t think that some of those discussions are not also about legislation. The holdouts in the GOP are <a href="https://www.cnn.com/2023/01/04/politics/mccarthy-gop-speaker-hardliners-what-matters/index.html">looking for concessions</a> on things such as term limits for representatives – and that is a legislative issue; they will need to pass law on it.</p>
<p>But for the most part, the fight over the speakership is the only issue in town.</p>
<h2>What is the U.S. missing out on in terms of House business?</h2>
<p>If you look at the <a href="https://www.congress.gov/calendars-and-schedules">House calendar</a> for the first few weeks of the year, there isn’t an awful lot on it.</p>
<p>In the first few days, normally you would have the selection of the speaker and swearing in of members. And then they would traditionally break. There wasn’t expected to be a huge amount of legislation being pushed straight out of the gate.</p>
<p>One thing that is being delayed is a revision of the <a href="https://rules.house.gov/rules-house-representatives">rules of the House of Representatives</a> – something that happens at the beginning of each session of Congress. A rules package decides what the rules of the House will be in that session; then representatives get down to legislative business.</p>
<p>You have to keep in mind that legislative activity is heavier at the end of sessions – and we just finished a session of Congress in December. If legislation doesn’t pass in the House and the Senate in a single two-year session, then it dies – so there is no leftover business from last year; everything starts over again.</p>
<p>As a result, you traditionally don’t see a lot of dramatic legislative activity early in a House session.</p>
<h2>But what happens if the impasse continues?</h2>
<p>The one pressing thing the House has coming up that is not being dealt with is a vote over the raising of the debt ceiling.</p>
<p>Congress needs to raise <a href="https://www.crfb.org/blogs/upcoming-congressional-fiscal-policy-deadlines">the debt ceiling this spring</a>; otherwise the U.S. will default on its obligations. </p>
<p>But the House still has four or five weeks until this really is a pressing issue – and <a href="https://www.washingtonpost.com/politics/2021/08/12/whats-up-with-mitch-mcconnells-brinksmanship-debt-ceiling/">brinkmanship is common</a> when it comes to the debt ceiling, so expect that to be a protracted debate and negotiation in any case.</p>
<h2>Can this situation continue?</h2>
<p>Yes. The U.S. Constitution identifies only three congressional roles that need to be filled – the speaker of the House is one, the other two being the president of the Senate (the constitution designates that the vice president of the U.S. fills this role), and <a href="https://www.senate.gov/about/officers-staff/president-pro-tempore.htm">the Senate president pro tempore</a>, a ceremonial position to serve as the president of the Senate if the vice president can’t fulfill his or her Senate duties.</p>
<p>So there does need to be a speaker in place. The Constitution requires only that the House shall elect a speaker, but doesn’t specify how or lay out a time frame – they can vote for weeks or even months.</p>
<p>By tradition, the speaker is elected by a majority of the House – so right now that would mean 218 representatives, assuming all are present and voting. Although the House rules currently specify that a majority is needed, that can be changed – it isn’t in the Constitution. The GOP could lower the vote majority needed to 213 to push McCarthy over the line, although they wouldn’t go lower as that could allow the Democrats to select Jeffries, who already has the support of all 212 Democrats in the House. </p>
<h2>Hang on! If representatives aren’t sworn in, who can change the House rules?</h2>
<p>That could come down to the <a href="https://clerk.house.gov/">clerk’s office</a> that is currently presiding over the House session. In the same way that the clerk’s office is allowing representatives-elect to nominate speakers, they could allow a motion putting forward a change in the House rules.</p>
<p>It has never happened before, and it would raise a number of procedural questions – but theoretically it is possible.</p>
<h2>Who can be a House speaker? We have heard a lot of names</h2>
<p>The Constitution has no rules whatsoever about who can and cannot be the House speaker. Representatives-elect can nominate – and even elect – someone who is not a member of the House to be speaker. That is why you have seen <a href="https://www.independent.co.uk/news/world/americas/us-politics/trump-speaker-joke-picture-truth-social-matt-gaetz-b2257064.html">Donald Trump be nominated</a> by one member; someone even joked about former speaker Newt Gingrich.</p>
<p>There are requirements for serving as a member of the House of Representatives – you have to be over the age of 25, a U.S. citizen for at least seven years and live in the state from which you were elected. But as a speaker doesn’t have to be a member of the House, these rules don’t apply. So you could, theoretically, nominate a 7-year-old German child.</p>
<h2>Could Trump really be the speaker?</h2>
<p>Constitutionally, yes. Practically, no. There seems to be very little appetite for this among GOP members in the House – he only received one vote, and may not want the job in any case.</p>
<h2>How has this all affected the authority of the role of Speaker?</h2>
<p>The short answer is we don’t know yet. The fact that it has taken this many votes and still we don’t have a speaker in place in itself will have an effect. It indicates a divided majority party that will be difficult to lead – that in itself will diminish the power of the role.</p>
<p>Any concessions struck to reach a deal over the speakership could further erode the speaker’s authority. What is being negotiated by holdouts in the GOP are largely measures to empower individual members at the expense of party leadership.</p>
<p>This isn’t that uncommon. Over history the power of the speakership has ebbed and flowed.</p>
<figure class="align-right ">
<img alt="A black and white photo shows a man standing it 1900s period dress." src="https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=827&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=827&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=827&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1039&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1039&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503468/original/file-20230106-16875-uwdt7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1039&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">‘Uncle’ Joe Cannon – a powerful speaker.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/early-1900s-u-s-politicians-congressman-joseph-g-cannon-news-photo/1354501198?phrase=Uncle%20Joe%20Cannon%2C&adppopup=true">HUM Images/Universal Images Group via Getty Images</a></span>
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<p>One of the most powerful speakers in U.S. history, “<a href="https://history.house.gov/Historical-Highlights/1800-1850/Speaker-of-the-House-Joseph-Gurney-Cannon-of-Illinois/">Uncle” Joe Cannon</a>, was <a href="https://teachingamericanhistory.org/document/the-revolt-of-1910-against-speaker-joseph-cannon/">removed in 1910 by his party</a> for that reason – they thought the speaker had too much power. In 1974, the influx of so-called “<a href="https://www.politico.com/magazine/story/2018/05/26/congress-broke-american-politics-218544/">Watergate babies</a>” – a group of northern liberal Democrats elected as part of a backlash after Watergate – led to an effort to diminish the power of committee chairs in the House. The rules changes left a vacuum that was filled by the speaker, with the result that the power of the position increased.</p>
<p>That all said, what is being discussed is unheard of. The main concession – a change to the <a href="https://abcnews.go.com/Politics/motion-vacate-key-sticking-point-gop-speaker-battle/story?id=96241364">“motion to vacate the chair” rule</a> so that any one member, or a small number of members, can initiate a process that is effectively a vote of no confidence – has never been tried before.</p>
<p>Another request by the GOP holdouts is to open the rules on the house floor so that any member can propose amendments to any bill. There are 435 members, and all have pet projects and constituent needs. Such a change would be chaos. In effect, it would mean that 435 people will be involved in the making of the legislative sausage right on the house floor.</p>
<h2>Will any concessions be binding?</h2>
<p>They don’t necessarily have to be adopted by future speakers, no. Some will have to be adopted in a new rules package for the House, but the rules package is changed every new session, so they won’t be binding forever. Indeed, some Democratic representatives have indicated that if concessions are made, they would potentially challenge the rules package or vote against some of the most extreme measures that holdouts are demanding.</p>
<p>Some of the concessions being discussed won’t need a rule change at all. They are, in effect, agreements between different factions in the Republican Party. For example, a concession that the GOP leadership will not use its SuperPac to favor candidates in open Republican primaries – that is something that can’t be dictated by House rules; it is more an issue of trust.</p><img src="https://counter.theconversation.com/content/197377/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rachel Paine Caufield does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What happens if GOP holdouts continue to hold out on the speaker position? And what if they don’t?Rachel Paine Caufield, Professor of Political Science, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1952912022-12-01T21:13:38Z2022-12-01T21:13:38ZTerritories free to make their own voluntary assisted dying laws, in landmark decision. Here’s what happens next<figure><img src="https://images.theconversation.com/files/497296/original/file-20221124-14773-fuzdwi.jpg?ixlib=rb-1.1.0&rect=0%2C1%2C1000%2C664&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/focus-on-hand-patient-hospital-ward-589302497">Shutterstock</a></span></figcaption></figure><p>Voluntary assisted dying will soon be an option for the Australian Capital Territory and Northern Territory, now the Senate has just passed a landmark bill.</p>
<p>The <a href="https://amp.abc.net.au/article/101692028">passing</a> of the <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22legislation%2Fbillhome%2Fr6889%22">Restoring Territory Rights Bill 2022</a> removes the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd005">key legal barrier</a> for the ACT and NT to introduce their own voluntary assisted dying legislation, should they wish to do so.</p>
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<p>This could see the territories join all six Australian states, which already have voluntary assisted dying legislation.</p>
<p>After extensive consultation, the ACT <a href="https://amp.abc.net.au/article/101692028">will introduce</a> its voluntary assisted dying legislation, with debate expected in late 2023 or early 2024. The NT government has <a href="https://amp.abc.net.au/article/101692028">stated</a> it has no plans to follow suit, at least during this parliamentary term.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-all-states-heres-whats-just-happened-in-nsw-and-what-it-means-for-you-183355">Voluntary assisted dying will soon be legal in all states. Here's what's just happened in NSW and what it means for you</a>
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<h2>The territories once led reform</h2>
<p>Although the territories are now the only Australian jurisdictions without voluntary assisted dying laws, they once led reform in this area. </p>
<p>The ACT was the first Australian jurisdiction to attempt to legalise assisted dying, although its 1993 Voluntary and Natural Death Bill <a href="https://eprints.qut.edu.au/221103/8/_Failed_voluntary_euthanasia_law_reform_in_Australia_Two_decades_of_trends_models_and_politics_NC.pdf">failed to pass</a>.</p>
<p>Shortly after, in 1995, the NT parliament passed the <a href="http://classic.austlii.edu.au/au/legis/nt/consol_act/rottia1995294/">Rights of the Terminally Ill Act</a> – the first operational voluntary assisted dying law, not only in Australia, but in the world.</p>
<p>However, it was the passing of this law that prompted the Commonwealth to remove the territories’ power to legislate in this field. </p>
<p>In 1997, the NT’s act was overturned by the Commonwealth parliament through the <a href="https://www.legislation.gov.au/Details/C2004A05118">Euthanasia Laws Act</a>, introduced by then Liberal backbencher Kevin Andrews. This act also aimed to prevent the territories passing such laws in the future. </p>
<p>The Commonwealth was only able to do this for the territories – not the states – because the Constitution gives the Commonwealth unlimited power to make laws “<a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter6#chapter-06_122">for the government of any territory</a>”. </p>
<p><a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd005">Nine previous bills</a> aiming to restore territory rights on this issue have been introduced into the Commonwealth parliament, but all had failed, until now.</p>
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<h2>The ACT and NT can learn from the states</h2>
<p>If the ACT and NT choose to legalise voluntary assisted dying, they must <a href="https://www.canberratimes.com.au/story/7362400/how-would-the-act-debate-voluntary-assisted-dying/">consider</a> the <a href="https://eprints.qut.edu.au/134902/9/document_3_.pdf">evidence</a> and data from <a href="https://www.safercare.vic.gov.au/publications?f%5B0%5D=agency%3A751&search=voluntary%20assisted%20dying%20review%20board">states</a> where voluntary assisted dying <a href="https://ww2.health.wa.gov.au/%7E/media/Corp/Documents/Health-for/Voluntary-assisted-dying/VAD-Board-Annual-Report-2021-22.pdf">is operational</a>. There is also an opportunity to select the best aspects from each state law.</p>
<p>For instance, for all states <a href="https://theconversation.com/voluntary-assisted-dying-could-soon-be-legal-in-queensland-heres-how-its-bill-differs-from-other-states-161092">except Queensland</a>, for a person to access voluntary assisted dying, they must be expected to die within six months (within 12 months for neurodegenerative conditions). </p>
<p>Given <a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">challenges with delays</a> in getting through the system, the 12-month period adopted by Queensland, or not imposing a specific time limit until death, <a href="https://eprints.qut.edu.au/211733/16/2022_Who_is_Eligible_for_VAD_9_Conditions_across_5_Frameworks_UNSWLJ_.pdf">may allow more time</a> for terminally ill people to navigate access.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">Victoria's voluntary assisted dying scheme is challenging and complicated. Some people die while they wait</a>
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<p>Similarly, all states require a person to live in the state for 12 months before requesting assistance to die. Now voluntary assisted dying is lawful throughout most of Australia, there is little need for this requirement.</p>
<p>The territories may choose to impose <a href="https://theconversation.com/what-happens-if-you-want-access-to-voluntary-assisted-dying-but-your-nursing-home-wont-let-you-183364">minimum legal obligations</a> for how health-care and aged care facilities who do not participate in voluntary assisted dying handle such requests. This is the case in <a href="https://end-of-life.qut.edu.au/assisteddying">Queensland, South Australia and New South Wales</a>.</p>
<p>The territories also may wish to allow eligible people to choose how the medication is administered – they can take it themselves or a health professional can administer it. This <a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-all-states-heres-whats-just-happened-in-nsw-and-what-it-means-for-you-183355">choice is permitted in NSW</a>, whereas other states make self-administration the default method.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-you-want-access-to-voluntary-assisted-dying-but-your-nursing-home-wont-let-you-183364">What happens if you want access to voluntary assisted dying but your nursing home won't let you?</a>
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<h2>What now for the rest of Australia?</h2>
<p>Of the <a href="https://end-of-life.qut.edu.au/assisteddying">six states</a> with voluntary assisted dying laws, those in Victoria, Western Australia and Tasmania are already operational. </p>
<p>Queensland’s laws will start on January 1 2023, with SA following on January 31. NSW, the final state to pass its laws, will start on November 28.</p>
<p>Should the territories propose their own legislation, we’d anticipate <a href="https://www.cambridge.org/core/services/aop-cambridge-core/content/view/613F5DA2C3BC3F3CD15ED4AE134710C9/9781108489775c12_250-276.pdf/international_perspectives_on_reforming_endoflife_law.pdf">wide consultation and debate</a>.</p>
<p>With territories now permitted to decide this matter for themselves, there is a real prospect for them to have access to voluntary assisted dying in the foreseeable future.</p>
<hr>
<p><em>Katherine Waller, Project Coordinator, Australian Centre for Health Law Research, Queensland University of Technology, coauthored this article.</em></p><img src="https://counter.theconversation.com/content/195291/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian, Western Australian and Queensland Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. He (with Lindy Willmott) has also developed a model Bill for voluntary assisted dying for parliaments to consider. Ben White is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government.</span></em></p><p class="fine-print"><em><span>Katrine Del Villar has been involved in designing the legislatively-mandated training provided by the Western Australian and Queensland Governments for health practitioners involved in voluntary assisted dying. </span></em></p><p class="fine-print"><em><span>Lindy Willmott receives or has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian, Western Australian and Queensland Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. She (with Ben White) has also developed a model Bill for voluntary assisted dying for parliaments to consider. Lindy Willmott has also been appointed to the Queensland Voluntary Assisted Dying Review Board. She is a former Board member of Palliative Care Australia. </span></em></p>It’s been a long time coming. But this latest news means the ACT and NT could draw up their own voluntary assisted dying laws, bringing them into line with the states.Ben White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of TechnologyKatrine Del Villar, Postdoctoral research fellow, Queensland University of TechnologyLindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1927042022-10-20T13:14:12Z2022-10-20T13:14:12ZCorporate spending in state politics and elections can affect everything from your wallet to your health<figure><img src="https://images.theconversation.com/files/490190/original/file-20221017-7289-9wr57o.jpeg?ixlib=rb-1.1.0&rect=0%2C4%2C2916%2C2004&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">From Alaska to Alabama, corporations spend money to shape their local business environments, resources and regulations. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/campaign-donations-royalty-free-image/1398882607?phrase=political%20donations&adppopup=true">Douglas Rissing/ iStock / Getty Images Plus</a></span></figcaption></figure><p>Political spending by corporations is big business. </p>
<p>As one corporate executive with experience in business-government relations says, “A company that is dependent on government that does not donate to politicians is engaging in corporate malpractice.” </p>
<p>Our research group heard that statement during a series of interviews with industry insiders that we conducted for <a href="https://journals.aom.org/doi/abs/10.5465/amj.2017.1258">a study on corporate political strategy and involvement</a> in U.S. state politics. </p>
<p>In the 2020 election cycle, private interests spent <a href="https://www.opensecrets.org/political-action-committees-pacs/2022">US$486 million on campaign contributions</a> to U.S. federal election candidates and over <a href="https://www.opensecrets.org/federal-lobbying">$7 billion</a> to lobby Congress and federal agencies.</p>
<p>The 2022 cycle could be a record period if recent trends are any indication. At the federal level, <a href="https://www.opensecrets.org/news/2020/12/most-expensive-races-of-all-time-senate2020/">nine of the 10 most expensive Senate races to date happened during the 2020 election cycle</a>. Notably, Georgia was home to the <a href="https://www.opensecrets.org/news/2021/01/georgia-senate-races-shatter-records/">two most expensive Senate contests of all time in 2020</a>, with candidates and outside groups spending over $800 million on the two races combined.</p>
<p>Data from campaign finance monitor the <a href="https://www.opensecrets.org/federal-lobbying/top-spenders">Center for Responsive Politics</a> shows that those companies most affected by government regulation spend more. The operations of Facebook owner Meta, for example, could be heavily affected by government legislation, whether from laws concerning <a href="https://www.bbc.com/news/technology-42096185">net neutrality</a>, <a href="https://gdpr.eu/the-gdpr-meets-its-first-challenge-facebook/">data privacy</a> or <a href="https://www.abajournal.com/magazine/article/social-clashes-digital-free-speech">censorship</a>. Meta spent nearly $7.8 million in contributions and $36.4 million in lobbying <a href="https://www.opensecrets.org/orgs/summary?toprecipcycle=2020&contribcycle=2020&lobcycle=2020&outspendcycle=2020&id=D000033563&topnumcycle=2020">during the 2020 cycle</a>. </p>
<p>This kind of political spending is also common across state governments. From Alaska to Alabama, <a href="https://www.followthemoney.org/">corporations spend huge sums of money</a> to influence policymaking because they depend on their local business environments, resources and regulations. </p>
<p>Contributions to gubernatorial and state legislative candidates <a href="https://www.followthemoney.org/research/institute-reports/joint-report-reveals-record-donations-in-2020-state-and-federal-races">set records during the 2020 cycle</a>, nearing $1.9 billion. That was up from $1.57 billion during the 2016 cycle and $1.4 billion during the 2012 cycle. Contributions in the 2020 cycle represented a nearly 21% increase from 2016. Both major political parties tend to receive roughly the same level of contributions, though the numbers can vary from year to year.</p>
<p>As the next election approaches, corporate involvement in state politics is vital to understand. </p>
<p>Companies’ attempts to manage state regulations have important effects on their operations directly as well as on state revenues and on the lives of state residents. Corporations can affect <a href="https://academic.oup.com/sf/article-abstract/90/3/947/2235830">the air that you breathe, the water you drink</a> and <a href="https://apnews.com/bd8a878c5fe84ea48ffbcf05b4edba0e">the taxes you pay</a>. </p>
<h2>External forces spark donations</h2>
<p>A <a href="https://journals.aom.org/doi/abs/10.5465/amj.2017.1258">study we conducted</a> with colleagues <a href="https://robins.richmond.edu/faculty/asutton/">Trey Sutton</a> and <a href="https://business.fsu.edu/person/bruce-lamont">Bruce Lamont</a> provides insight into the details of when and why corporations contribute to state gubernatorial and legislative candidates. </p>
<p>We examined political contributions by publicly traded companies in elections for governor and the legislature across the 50 U.S. states. The companies we studied (e.g., ExxonMobil and 3M) all operate in environmentally intensive industries – oil and gas, chemical, energy and manufacturing industries. Specifically, the companies in these industries have industrial manufacturing processes <a href="https://www.forbes.com/sites/christopherhelman/2013/06/10/americas-20-worst-corporate-air-polluters/#403cf82d41c6">that create toxic releases</a>. </p>
<p>We also interviewed industry insiders, political affairs consultants and lobbyists to complement our empirical findings. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=470&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=470&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=470&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">ExxonMobil is one of many companies that will likely spend a lot of money on upcoming elections.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/anastasia-hinchsliff-fuels-her-suv-at-an-exxon-mobile-gas-news-photo/103157613?adppopup=true">John Gress/Getty Images</a></span>
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<p>At the core, companies spend when they are dependent on states, meaning that they have vested interests and operations in a state that are subject to regulation. Regulation creates uncertainty for managers – which they don’t like. Spending helps alleviate the uncertainty by influencing what regulation may be imposed. </p>
<p>Our study went beyond this observation, and had four major insights:</p>
<p><strong>1. Corporations spend when they are worried about negative media coverage prompting what they perceive to be potentially harmful regulations.</strong></p>
<p>As one executive told us, “We spend a lot of time tracking media and local advocacy groups. We track [them] on a daily basis, and I get a report each week.” </p>
<p>Media coverage can drive public perceptions of corporations and influence politicians’ views. In particular, media coverage can amplify misdeeds of companies across states, which worries managers who do not want to see new regulations. In line with this, we found that the companies spent 70% more in states they operated in when national media coverage was more negative rather than less negative. </p>
<p>We found that this effect was exclusive to national media coverage as opposed to local media coverage. Specifically, when local media coverage was more negative, it did not appear to affect political spending. </p>
<p><strong>2. Corporations spend when there are powerful social movement organizations – for example, environmental protection groups – within a state.</strong></p>
<p>“Public relations firms are routinely engaged to monitor activists and the media, because if you don’t watch them, they can create regulatory change. You have to get ahead of it,” an executive said. </p>
<p>Social movement organizations (e.g., Sierra Club and the Rainforest Action Network) help <a href="https://www.jstor.org/stable/3312913?casa_token=5XA3RUoopBYAAAAA%3Agc06Z6cwRA6ODbgPUOkHwk2Ea7XB43KocZhFtMZjaTyH0UlKbOim5uAZS9QniQ1k9hXjtwGYyCEbovm__npFAuKOb467j57cqa12omJC4o1tzHJrUl--&seq=1#metadata_info_tab_contents">shape public opinion on important issues, pursue institutional change and can prompt legal reform</a> as well, which is a concern to corporations. Our research indicated that in states where they had operations, companies spent 102% more when facing greater opposition from social movement organizations than they would have on average. </p>
<p><strong>3. Corporations spend to gain a seat at the legislative table to communicate their interests.</strong></p>
<p>A political affairs consultant and lobbyist said, “Regulations are a negotiation, there is not a logic, no rule of law, lobbyists come in here…” In essence, legislators rely on policy experts and analysts, among others, when crafting new legislation, but often, solutions can be unclear with competing demands and interests. </p>
<p>Our interviewees shared with us that companies spread their contributions around to those politicians who they believe will listen to their causes and concerns – regardless of party. </p>
<p>They described themselves as wanting their voices heard on particular issues and as important players in the states in which they operate due to the employment and tax base they bring to states. </p>
<p>Boeing, for example, was the <a href="https://www.bizjournals.com/seattle/news/2021/10/06/amazon-microsoft-boeing-largest-employers.html">largest private employer in Washington state for decades</a> and has been able to <a href="https://www.reuters.com/article/us-boeing-incentives/boeing-lobby-group-team-up-to-defend-8-7-billion-in-state-tax-breaks-idUSKBN14U23V">secure tax breaks</a> as a result. This is despite <a href="https://www.seattletimes.com/seattle-news/environment/boeing-discharge-to-duwamish-violates-pcb-standards/">documented environmental problems that Boeing’s operations have had in the state.</a> </p>
<p><strong>4. Corporations spend because they see it as <a href="https://www.businessroundtable.org/about-us">consistent with their responsibility to stakeholders</a>.</strong> </p>
<p>“Companies mostly want certainty, they want to know the bottom line, and engagement can create opportunities,” said one political affairs consultant. </p>
<p>Corporations have a legal and ethical responsibility to their stakeholders. Company leaders often believe they are upholding their responsibilities to shareholders, employees, communities, customers and suppliers by participating in the political process. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">California lawmakers often set more stringent environmental policies than most other states.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/state-capitol-building-sacramento-california-news-photo/661870070?adppopup=true">Education Images/Universal Images Group via Getty Images</a></span>
</figcaption>
</figure>
<h2>What are the stakes?</h2>
<p>There can be huge repercussions for companies in state regulation. As one political affairs consultant told us, “[Regulation] is the pot at the end of the rainbow that could create endless possibilities of profit. It’s the only thing that stands between them and unending profits …” </p>
<p>Ride hailing service Uber, for example, mounted <a href="https://www.theregreview.org/2018/06/28/schriever-uber-lyft-lobby-deregulation-preemption/">protracted political campaigns</a> aimed at state legislatures and local governments to protect the company’s interests. One result: The ride hailing service has been able to get independent contractor status for their drivers in many states, which means the company does not have to provide unemployment insurance, workers’ compensation and other benefits. </p>
<p>Passage of regulations in large states like California, for example, can have nearly as much impact as a national regulation, making their passage far more significant for companies working nationally. </p>
<p>Since California sets more <a href="https://theconversation.com/why-california-gets-to-write-its-own-auto-emissions-standards-5-questions-answered-94379">stringent emissions standards</a> for vehicles than most other states, manufacturers designing cars for the U.S. market must make sure their vehicles can pass these standards. In this way, California and other states <a href="https://www.latimes.com/politics/story/2020-06-22/nevada-will-adopt-californias-car-pollution-standards">following its lead</a> pose a larger regulatory hurdle for auto manufacturers. </p>
<h2>Where does this leave us?</h2>
<p>Corporate involvement in state politics is an important phenomenon. Corporations provide needed products and services, and also bring jobs and increased investment to states, which can strengthen communities and state economies. Their operations also can bring health and environmental problems for state residents.</p>
<p><a href="https://fivethirtyeight.com/features/where-are-georgias-senate-candidates-getting-all-that-cash-from/">As the 2020 Georgia U.S. Senate races suggest</a>, campaign donations for candidates for federal office increasingly come from outside the state. <a href="https://www.followthemoney.org/research/institute-reports/joint-report-reveals-record-donations-in-2020-state-and-federal-races">While this pattern does not pervade state elections yet</a>, it raises questions about politicians’ responsiveness to the issues most relevant to their local constituencies.</p>
<p>Given the changed business landscape – <a href="https://www.wsj.com/articles/how-much-covid-19-cost-those-businesses-that-stayed-open-11592910575">and increased operating costs</a> – caused by the coronavirus pandemic, we expect that businesses across the country will continue to be interested in influencing policies ranging from workplace safety to local and state tax breaks. This interest will likely translate into significant spending in the upcoming election, to both major parties and their candidates.</p>
<p>And that political spending will affect everything from your wallet to your health.</p>
<p><em>This is an updated version of a <a href="https://theconversation.com/money-talks-big-business-political-strategy-and-corporate-involvement-in-us-state-politics-140686">story originally published on June 29, 2020</a>.</em></p><img src="https://counter.theconversation.com/content/192704/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Businesses can spend huge amounts of money to influence Congress. But sizable lobbyist and campaign donations also go to state campaigns and lawmakers to influence policymaking.Richard A. Devine, Assistant Professor of Management, DePaul UniversityR. Michael Holmes Jr., Jim Moran Professor of Strategic Management, Florida State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1898702022-09-07T20:07:17Z2022-09-07T20:07:17ZThe end of jargon: will New Zealand’s plain language law finally make bureaucrats talk like normal people?<figure><img src="https://images.theconversation.com/files/483140/original/file-20220907-13-mlo6ss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">GettyImages</span> </figcaption></figure><p>Which sentence is easier to understand? “He was conveyed to his place of residence in an intoxicated condition.” Or, “He was carried home drunk.” Most people choose the latter, for obvious reasons. </p>
<p>This <a href="https://global.oup.com/academic/product/oxford-guide-to-plain-english-9780198844617?cc=at&lang=en&#">century-old example</a> is a useful illustration of how “plain language” can be used to communicate more clearly, from everyday interactions right through to government documents.</p>
<p>The new <a href="https://www.legislation.govt.nz/bill/member/2021/0070/latest/d362751e2.html?search=qs_act%40bill%40regulation%40deemedreg_plain+language_resel_25_h&p=1&sr=1">Plain Language Bill</a> now before parliament aims to make this more than just an ideal. Comprehensible information from government organisations, it argues, is a basic democratic right.</p>
<h2>The push for simplicity</h2>
<p>Plain language movements originated in the 1970s in several countries, including the UK, US and Canada. And there’s some indication the very first mention of plain language dates back as far as the writings of Geoffrey Chaucer in the 1300s. </p>
<p>However old, these movements strove for clear, straightforward and accessible language in official documents. This is not merely a “nice-to-have”. In some cases it can save your life – pandemic instructions from the Ministry of Health, for example. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/language-puts-ordinary-people-at-a-disadvantage-in-the-criminal-justice-system-79934">Language puts ordinary people at a disadvantage in the criminal justice system</a>
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<p>And there is also an element of linguistic equality to it: minority, migrant and marginalised communities have more difficulty understanding complex and jargon-laden documents, which tip the scales even further against them.</p>
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<img alt="Older woman reading documents at home" src="https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/483122/original/file-20220907-22-1s7x6n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Plain language is a justice issue, allowing non-native English speakers to better understand official documents.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com.au/detail/photo/senior-lady-at-home-working-with-documents-royalty-free-image/1054911598?adppopup=true">Getty Images</a></span>
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<h2>What is plain language?</h2>
<p>There is no single definition of plain language, but both the UK and US commonly use the one proposed by the <a href="https://plainlanguagenetwork.org">International Plain Language Working Group</a>: </p>
<blockquote>
<p>A communication is in plain language if its wording, structure, and design are so clear that the intended audience can easily find what they need, understand what they find, and use that information.</p>
</blockquote>
<p>In practice, it is easier to recognise a text written in plain language than one that is not. But it also depends on who is reading it. What may be plain language for some, will not be for others. </p>
<p>That said, basic tenets of plain language texts in English include:</p>
<ul>
<li><p>using concise sentences (15-20 words max)</p></li>
<li><p>positive (not negative) clauses </p></li>
<li><p>active, not passive voice (“if you break the law” not “if the law is broken”) </p></li>
<li><p>verbs rather than complex nouns (“identify” not “identification”) </p></li>
<li><p>common words <a href="https://www.msd.govt.nz/about-msd-and-our-work/work-programmes/accessibility/quick-reference-guides/checklist-for-plain-language.html">rather than jargon</a>. </p></li>
</ul>
<p>Although the principles of plain language are not new, mandating them through New Zealand legislation is. </p>
<h2>The Plain Language Bill</h2>
<p>Aotearoa New Zealand’s Plain Language Bill aims to: </p>
<blockquote>
<p>improve the effectiveness and accountability of public service agencies and Crown agents, and to improve the accessibility of certain documents that they make available to the public, by providing for those documents to use language that is (a) appropriate to the intended audience; and (b) clear, concise, and well organised. </p>
</blockquote>
<p>The bill before parliament does not explicitly define plain language beyond this description. We’ll have to wait for the details. </p>
<p>If the bill is passed into law, the Public Service Commissioner will have to produce material to help agencies comply with plain language requirements. </p>
<p>Only after seeing this guidance material will we know what effect reforms might have on government documents. So, MPs will essentially be voting without knowing what the bill will actually require agencies to do in practice. </p>
<h2>The devil in the details</h2>
<p>There are some other important things to note about what the bill does and doesn’t do. </p>
<p>It aims to improve accessibility of documents for people with disabilities. It does not affect the use of te reo Māori in government agency documents, nor does it propose to compel agencies to translate documents into languages other than English. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1565494715616841734"}"></div></p>
<p>Perhaps most importantly, the bill does not include any enforcement mechanisms, although agencies and agents will be required to report their progress. </p>
<p>The bill is procedural in nature: it creates no enforceable rights or obligations. Members of the public will not be able to seek any form of remedy if they continue to find documents difficult to understand. </p>
<h2>International experience</h2>
<p>Given that New Zealand’s bill is closely modelled on the <a href="https://www.govinfo.gov/app/details/PLAW-111publ274">Plain Writing Act 2010</a> in the US, it is useful to consider the law’s impact there. </p>
<p>After it was passed, plain language advocates in the US were <a href="https://www.washingtonpost.com/news/federal-eye/wp/2013/11/19/plain-writing-in-government-agencies-plainly-speaking-arent-there-yet/">initially unimpressed</a> by <a href="https://www.washingtonpost.com/politics/advocates-of-the-plain-writing-act-prod-federal-agencies-to-keep-it-simple/2012/04/08/gIQAlTCe4S_story.html">its impact</a>. But the <a href="https://centerforplainlanguage.org/about/history/">Center for Plain Language</a>, a non-governmental organisation that publishes report cards on writing quality in government agency documents, noted significant improvements between 2013 and 2021. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/research-shows-most-online-consumer-contracts-are-incomprehensible-but-still-legally-binding-110793">Research shows most online consumer contracts are incomprehensible, but still legally binding</a>
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<p><a href="https://centerforplainlanguage.org/reports/federal-report-card/2013-report-card/">In 2013</a>, half of the 20 agencies reviewed either failed or required improvement to meet plain writing requirements, while in 2021 <a href="https://centerforplainlanguage.org/wp-content/uploads/2021/10/2021-FRC-one-pager.signed.jpg">every agency passed</a>. </p>
<h2>Will it work?</h2>
<p>Will this bill work to make government documents more accessible for New Zealanders? The short answer is, we don’t know yet. But the US experience suggests some progress is likely. </p>
<p>One thing the New Zealand bill is already doing, however, is increasing awareness of the need for clear communication. Some MPs have <a href="https://www.stuff.co.nz/national/politics/129751653/labours-plain-language-bill-passes-second-reading">voiced concern</a> about the cost of the reforms, the lack of enforceability, and even that the new law will increase bureaucracy. </p>
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<p>However, important insights can be gained from regular reporting. There are also potential financial benefits from reducing the volume of followup communication with government agencies. </p>
<p>Overall, there is a clear social benefit in improving official communication. And instead of being conveyed to their place of residence in a state of intoxication, perhaps drunks will just be carried home.</p><img src="https://counter.theconversation.com/content/189870/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andreea S. Calude received funding from The Royal Society Marsden Grant (2018-2020). </span></em></p><p class="fine-print"><em><span>Sam Campbell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Despite a lack of enforceable remedies, international experience suggests the proposed new ‘plain language’ law should improve official communications.Andreea S. Calude, Senior Lecturer in Linguistics, University of WaikatoSam Campbell, Law Lecturer, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1854812022-06-23T14:13:54Z2022-06-23T14:13:54ZWill closing the ‘boyfriend loophole’ in gun legislation save lives? Here’s what the research says<figure><img src="https://images.theconversation.com/files/470578/original/file-20220623-51459-duwhsw.jpg?ixlib=rb-1.1.0&rect=22%2C67%2C4970%2C3263&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Preventing people with domestic violence records obtaining guns would be a life-saver.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-holds-a-placard-that-says-no-more-silence-end-gun-news-photo/1241273019?adppopup=true">Jeremy Hogan/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p><em>The U.S. Congress <a href="https://www.nytimes.com/2022/06/24/us/politics/gun-control-bill-congress.html">has passed</a> a bipartisan gun safety bill, representing the first federal gun safety legislation to be passed in a generation.</em></p>
<p><em>The legislation, which will now be signed into law by President Joe Biden, is limited in scope. But among its provisions is the closing of the so-called “<a href="https://www.washingtonpost.com/nation/2022/06/14/boyfriend-loophole-bipartisan-gun-deal/">boyfriend loophole</a>” which allows some people with a record of domestic violence to still buy firearms.</em></p>
<p><em><a href="https://cj.msu.edu/directory/zeoli-april.html">April Zeoli, at Michigan State University</a>, researches the link between intimate partner violence, homicide and gun laws. She explains what the change means – and why it would save lives.</em></p>
<h2>What is the boyfriend loophole?</h2>
<p>Under current federal legislation, <a href="https://www.law.cornell.edu/uscode/text/18/921#a_32">intimate partner relationships</a> are defined only as those in which two people are or were married, live or lived together as a couple, or have a child together. People who were in a dating relationship are largely excluded from this definition.</p>
<p>As a result, dating partners are exempt from federal laws that prohibit those convicted of domestic violence misdemeanor crimes, or those who are under domestic violence restraining orders, from buying or possessing a firearm. This is what is referred to as the “boyfriend loophole”.</p>
<p>To put it another way, if you have two domestic abusers who have both committed the same severe physical violence against their partners, but one of them is married to their intimate partner while the other isn’t, then only the domestic abuser who is married could be prohibited from having a gun.</p>
<h2>What does the data tell us about domestic violence and guns?</h2>
<p>Intimate partner homicides have been rising since about 2015, and this increase is almost entirely due to <a href="https://www.icpsr.umich.edu/web/ICPSR/series/57">intimate partner homicides committed with guns</a>. Indeed, guns are the <a href="https://doi.org/10.1089/vio.2019.0005">most common weapon used in intimate partner homicide</a>. In contrast, non-gun intimate partner homicide levels have stayed roughly the same over that period.</p>
<p>Research suggests that when a violent male partner has access to a gun, the risk of murder to the female partner increases by <a href="https://doi.org/10.2105/ajph.93.7.1089">fivefold</a>. We also know that guns are used to <a href="https://doi.org/10.1177/1524838016668589">coerce, intimidate, and threaten</a> intimate partners, and that gun-involved intimate partner violence can result in <a href="https://doi.org/10.1089/vio.2016.0024">more symptoms of post-traumatic stress disorder</a> than intimate partner violence that doesn’t involve guns. With a nationally representative survey suggesting that <a href="https://bjs.ojp.gov/content/pub/pdf/ndv0312.pdf">3.4%</a> of victims of domestic violence have experienced non-fatal gun use by their abusers – combined with the high numbers of intimate partner murders committed with guns – this constitutes a large public health threat.</p>
<h2>Why are people talking about the ‘boyfriend loophole’ now?</h2>
<p>The conversation over extending domestic violence firearm restrictions to dating partners arises every few years.</p>
<p>This time, Congress has actually passed new gun safety legislation that will close, or at least narrow the loophole. The <a href="https://www.murphy.senate.gov/newsroom/press-releases/bipartisan-group-of-senators-announce-agreement">wording of the proposed legislation</a> extends the ban to those who “have or have had a continuing relationship of a romantic or intimate nature.” </p>
<p>There are a few issues to note here. First, the motivation to pass new gun safety legislation came from recent mass shooting events and the hope of preventing future mass shootings. We know that many mass shootings often involve <a href="https://injepijournal.biomedcentral.com/articles/10.1186/s40621-021-00330-0">killing intimate partners or family members</a>, and that some of the shooters have <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/1745-9133.12475">criminal histories involving domestic violence</a> before they commit the mass shootings.</p>
<p>But mass shootings make up only a small percentage of shootings in the United States. Intimate partner homicide is a more frequent occurrence.</p>
<p>My research shows that when states extend firearm restrictions placed on individuals under domestic violence restraining orders to cover dating partners, there is an <a href="https://doi.org/10.1093/aje/kwy174">associated reduction in intimate partner homicide</a>.</p>
<p>However, the legislation which has made its way through Congress does not do this exactly. The law would only close the loophole for those convicted of domestic violence misdemeanor crimes. It does not cover restraining order laws.</p>
<h2>What is the current situation at the state level?</h2>
<p>Some states, such as Minnesota and West Virginia, have <a href="https://www.statefirearmlaws.org/">extended misdemeanor domestic violence firearm restrictions to dating partners</a> already. Others, including Tennessee, have not. Fewer than half of states have extended the misdemeanor domestic violence firearm restriction to cover dating partners.</p>
<p>This has created a situation in which safety from gun violence by a violent dating partner depends on the state in which you live. Federal legislation would help to create a more consistent picture across the country when it comes to dating partners who commit violence.</p>
<h2>What effect will closing the ‘boyfriend loophole’ have at a national level?</h2>
<p>My research suggests that the federal firearm restriction for individuals convicted of domestic violence misdemeanor crimes is associated with <a href="https://doi.org/10.1093/aje/kwy174">reductions in intimate partner homicide committed with firearms</a>.</p>
<p>As such, one could hypothesize that restricting access to guns for a greater number of dangerous intimate partners would further reduce firearm homicides within violent relationships. By the same thinking, closing the boyfriend loophole when it comes to banning gun possession for individuals under domestic violence restraining orders would also probably save lives.</p><img src="https://counter.theconversation.com/content/185481/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>April M. Zeoli receives funding to support her research from the National Collaborative for Gun Violence Research, the Joyce Foundation, the Centers for Disease Control and Prevention, and the National Institutes of Health. She is affiliated with the Consortium for Risk-Based Firearm Policy.</span></em></p>Congress has pushed through its first gun control legislation in 30 years. Included in the legislation is a provision to expand a firearm ban to dating partners accused of domestic violence.April M. Zeoli, Professor of Criminal Justice, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1853402022-06-21T11:56:04Z2022-06-21T11:56:04ZTrain strike: UK government’s plan to replace strikers with agency workers failed in 2015 – it still won’t work today<p>As the UK government faces the prospect of a <a href="https://www.theguardian.com/uk-news/2022/jun/20/uk-summer-strikes-barristers-nhs-rail-workers">summer of strikes</a>, it has <a href="https://www.bbc.co.uk/news/uk-politics-61865031">reintroduced plans</a> to change the law so agency workers can be hired to replace striking workers. While this will not happen in time to prevent the impact of current transport worker strikes, <a href="https://www.bbc.co.uk/news/business-61723515">the BBC has reported</a> it could be achieved by mid-July via a reform to <a href="https://www.legislation.gov.uk/uksi/2003/3319/regulation/7/made">secondary legislation</a>. No official statement has been made, but the business secretary, Kwasi Kwarteng, has said <a href="https://www.theguardian.com/uk-news/2022/jun/20/boris-johnson-plan-break-rail-strikes-agency-workers">this change</a> “is on its way”.</p>
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<p>This legislation is not a new idea, however. The government has tried – and failed – to introduce it before and it remains unlikely to work or to comply with international law.</p>
<p>While the policy was most recently <a href="https://www.telegraph.co.uk/politics/2022/06/11/agency-staff-may-used-break-marxist-union-strikes-says-grant/">announced</a> by the transport secretary, Grant Shapps, it echoes proposals made by David Cameron’s Conservative government in 2015. That year’s <a href="https://ucrel.lancs.ac.uk/wmatrix/ukmanifestos2015/localpdf/Conservatives.pdf">Conservative manifesto</a> pledged to “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”. </p>
<p>This was swiftly translated into a proposal for legislative reform. Draft regulations to allow employers to hire agency workers to replace striking workers were set out in a <a href="https://www.gov.uk/government/consultations/hiring-agency-staff-during-strike-action-reforming-regulation">consultation paper</a> that July, alongside the <a href="https://www.theguardian.com/politics/2015/jul/15/trade-unions-conservative-offensive-decades-strikes-labour">controversial</a> 2015 <a href="https://research-information.bris.ac.uk/ws/portalfiles/portal/56359345/FORD_NOVITZ_ILJ_REVISIONS_FINAL_5.10.15.pdf">Trade Union Bill</a>. </p>
<p>So why was the idea dropped in 2015? Unsurprisingly, the proposal was rejected by the Trades Union Congress <a href="https://www.tuc.org.uk/research-analysis/reports/about-trade-union-bill">(TUC)</a> as an attempt to threaten the right to strike. It was also <a href="https://www.bihr.org.uk/blog/striking-the-rights-balance">viewed by leading NGOs</a>, including Amnesty International and Liberty, as “a major attack on civil liberties”. </p>
<p>Perhaps as importantly, the proposal also failed to pass standard parliamentary scrutiny. The Regulatory Policy Committee (RPC) - the UK’s regulation watchdog - criticised several major elements of the government’s <a href="https://www.gov.uk/government/consultations/hiring-agency-staff-during-strike-action-reforming-regulation">impact assessment</a> of this regulatory change. For a start, the government claimed that 22% of working days lost to strikes could be covered by agency workers, but the RPC found a lack of <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/454856/RPC15-BIS-2403__3009__-Hiring_agency_staff_during_strike_action_-_IA_c__-_opinion.pdf">sufficient evidence</a> for this figure.</p>
<p>The RPC also highlighted the need to factor in the costs of helping employers familiarise themselves with the new law and the impact on productivity. It <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/454856/RPC15-BIS-2403__3009__-Hiring_agency_staff_during_strike_action_-_IA_c__-_opinion.pdf">observed</a> that the impact assessment itself acknowledged that “agency workers may lower the usual productivity of the workplace”, but it discounted this in its calculations without explanation. </p>
<p>Linked to this concern is the need to assess the suitability of agency workers’ skill sets and location, which was also acknowledged in the impact assessment. Given these factors, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/454856/RPC15-BIS-2403__3009__-Hiring_agency_staff_during_strike_action_-_IA_c__-_opinion.pdf">the RPC asked</a> why it would not be “more beneficial to the employer” to absorb the short-term costs of a strike instead of using temporary workers.</p>
<p>Impact assessments related to other elements of the 2015 Trade Union Bill were changed and resubmitted to address <a href="https://www.gov.uk/government/publications/regulatory-policy-committee-published-opinions/regulatory-policy-committee-published-opinions-since-may-2015">RPC concerns</a>, but this measure was not. Instead, it was abandoned – presumably because the then government had to concede the proposal was not workable.</p>
<h2>Revisiting the 2015 plans</h2>
<p>These points all remain valid today as the Conservative government revisits the same agency worker proposal. In particular, while the physical location of agency workers may not matter for some types of work – especially in the digital era – specific skills remain crucial. </p>
<p>For example, recent moves by UK universities to replace striking <a href="https://www.telegraph.co.uk/news/2022/05/20/universities-set-hire-exam-markers-australia-strikes-threaten/">exam markers</a> with those from an external consultancy in Australia drew criticism from students and alumni. While marking can be performed by less skilled workers, students <a href="https://twitter.com/qm_ucu/status/1537144394746322947">took to Twitter</a> to voice concerns about a potential lack of expertise in the specific subjects being marked, as well as the lack of detailed feedback given to students. </p>
<p>Imagine the implications in a different line of work. The shadow chancellor, Rachel Reeves, recently remarked that she would not feel safe travelling on a train if a short-term agency worker <a href="https://www.huffingtonpost.co.uk/entry/labour-condemns-agency-workers-rail-strike_uk_62a59cd5e4b06594c1c9ae20#:%7E:text=Shadow%20chancellor%20Rachel%20Reeves%20BBC%20Labour%20has%20condemned,network%20grinding%20to%20a%20halt%20later%20this%20month">replaced a trained signaller</a>. Similar health and safety concerns could arise if strike action is called by other unions – the British Medical Association, for example, has <a href="https://www.telegraph.co.uk/politics/2022/06/11/agency-staff-may-used-break-marxist-union-strikes-says-grant/">already warned</a> it may prepare for a strike ballot.</p>
<figure class="align-center ">
<img alt="Large group of people queuing in the street, red double-decker bus in the background" src="https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/470019/original/file-20220621-22-upkeqi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People queue for buses at Victoria Station in London on June 21 2022 during three days of strikes that will see more than half of the UK’s rail network suspended.</span>
<span class="attribution"><span class="source">Andy Rain/EPA-EFE</span></span>
</figcaption>
</figure>
<h2>International commitments</h2>
<p>Another reason for discarding the government’s proposal in 2015 was its breach of standards set by United Nations agency, the International Labour Organization (ILO). This could have repercussions for the UK in relation to its international trade commitments and exposure to sanctions such as the EU-UK Trade and Cooperation Agreement, which sets out <a href="https://www.etui.org/sites/default/files/2021-03/The%20EU-UK%20Trade%20and%20Cooperation%20Agreement%20and%20workers%27%20rights_2021.pdf">UK obligations</a> in this area. </p>
<p>As the Employment Lawyers Association (ELA) <a href="https://www.elaweb.org.uk/sites/default/files/docs/ELA%20Response_BIS%20Consultation_Hiring%20Agency%20Staff%20during%20Strike%20Action_9Sep15%20(1).pdf">observed</a> back in 2015, <a href="https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0::NO::P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:SUP,en,R188,/Document">ILO standards</a> say “private employment agencies” should not make workers available to replace strikers. That same year, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR)
<a href="http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_448720.pdf">recommended</a> “that the use of striker replacements should be limited to industrial action in essential services”. </p>
<p>Services <a href="https://foa-workersguide.ilo.org/node/56/">deemed</a> by ILO supervisory bodies as essential are those “whose interruption would endanger the life, personal safety or health of the whole or part of the population”, for example hospitals, electricity or water supply services. In 2018, the <a href="https://www.bailii.org/eu/cases/ECHR/2018/950.html">Ognevenko judgment</a> of the European Court of Human Rights referenced the ILO standards when it said that essential services would not include railways without further evidence of an acute emergency that would endanger life, personal safety or health.</p>
<p>If the current UK government is to abide by international commitments as an ILO member and party to the European Convention on Human Rights, agency workers can only replace strikers in essential services. In practice, however, employers are likely to be further restricted by public expectations that agency workers have the right skills to address health and safety concerns. </p>
<p>A more sensible approach, which does not repeat past mistakes, would be for the government and employers to listen to and negotiate with workers and their unions.</p><img src="https://counter.theconversation.com/content/185340/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tonia Novitz is affiliated with the Institute of Employment Rights (as a vice-president) and is on the advisory board of International Lawyers Assisting Workers (ILAW).</span></em></p>Recently announced government plans to lift a ban on hiring agency workers have been tried - and failed – as recently as 2015Tonia Novitz, Professor of Labour Law, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1829162022-05-27T07:54:47Z2022-05-27T07:54:47ZDomestic violence and work status: which Nigerian women are most at risk<figure><img src="https://images.theconversation.com/files/463703/original/file-20220517-21-lbh4ln.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Women during a protest rally to mark the International Women's Day 2022 at Alausa, Ikeja, Lagos. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/women-from-different-non-governmental-organisations-hold-a-news-photo/1239026793?adppopup=true">Photo by Adekunle Ajayi/NurPhoto via Getty Images.</a></span></figcaption></figure><p><a href="https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)02664-7/fulltext">One in four</a> women in Nigeria has experienced abuse from her intimate partner in her life. Globally, the figure is <a href="https://www.who.int/news-room/fact-sheets/detail/violence-against-women">one in three women</a>. </p>
<p>Research has shown that factors like a woman’s <a href="https://pubmed.ncbi.nlm.nih.gov/12476722/">age</a>, <a href="https://pubmed.ncbi.nlm.nih.gov/28695296/">education, rural/urban residence and income</a> influence her experience of <a href="https://www.tandfonline.com/doi/abs/10.1080/13545701.2014.997774">intimate partner violence</a>. Characteristics such as her <a href="https://catalog.ihsn.org/index.php/citations/6920">partner’s alcohol consumption</a>, <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3518349/">employment and history of abuse</a> also affect her experience. </p>
<p>The link between women’s economic resource ownership and intimate partner violence is a crucial one to investigate. <a href="https://www.aeaweb.org/articles?id=10.1257/aer.100.4.1847">One school of thought suggests that access to economic resources can protect women</a>. As women earn more income or own more resources, they can contribute more towards the household, giving them higher bargaining power and a lower likelihood of domestic violence. </p>
<p><a href="https://www.jstor.org/stable/3600303?seq=1">Another view</a> is that as a woman becomes more economically independent, male partners may respond with violence to enforce their power and compensate for the threat to their traditional status as breadwinners within the household. </p>
<p>My <a href="https://www.tandfonline.com/doi/full/10.1080/13545701.2020.1820064">study</a> added another dimension to the debate: the role of women’s occupational prestige in their experience of intimate partner violence in Nigeria. I used relative occupational status as an indicator of bargaining power.</p>
<p>Nigeria is a patriarchal setting where men have higher social standing than women. I wanted to investigate whether role reversals between men and women were associated with domestic violence. </p>
<p>The associations between different forms of violence, occupational status and imbalances between spouses turned out to be quite complex.</p>
<p>I found that women in prestigious occupations have lower odds of experiencing spousal abuse than women in low-ranked occupations. On the other hand, women in more prestigious occupations than their partners have greater odds of experiencing violence. Women have greater odds of abuse if their male partners are in prestigious occupations. </p>
<p><a href="https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/14727/597_Gender_Roles_in_Nigerian_Labour_Market.pdf?sequence=1&isAllowed=y">In Nigeria, women’s labour market participation is rising.</a> This gives them more status. Any move towards status equality appears to be a risk factor for women’s experience of abuse. Nigeria needs more legislation that criminalises domestic violence.</p>
<h2>Comparing occupations and violence</h2>
<p>I used the 2013 Nigeria Demographic and Health Survey to analyse the relationship between occupation and women’s experience of intimate partner violence. The survey is a nationally representative sample of 38,948 women and 17,359 men aged 15–49. It covers rural and urban households all over Nigeria. The record includes information on women’s experience of violence by their male partners in the previous 12 months.</p>
<p>A quarter of women in the survey reported having experienced violence of any kind. Two percent had experienced all forms of violence: emotional, sexual, and physical.</p>
<p>To rank occupational prestige, I used an existing system which considers qualifications, manual versus non-manual skills and self-employment versus employment by others. The ranking system was revised slightly to take the Nigerian context into account. Professional, technical, managerial, and clerical occupations were ranked highest. Agricultural workers ranked lowest.</p>
<p>When I explored the associations between occupation and violence, I found that women who did not work were the least likely to experience abuse. Women working in agriculture were most likely to experience all forms of violence. Professional women were the next most likely to experience emotional abuse. </p>
<p>Aside from the women’s own occupations, I looked at those of their husbands, and at the differences between them.</p>
<p>Men in more prestigious occupations appear to be more violent to their wives compared to men in less prestigious occupations. </p>
<p>Women in occupations of similar rank to their partners were twice as likely to experience physical and emotional violence, compared to women ranked lower than their partners. Women in more prestigious jobs than their husbands were seven times more likely to experience physical and emotional violence, compared to women ranked lower than their husbands.</p>
<p>In a patriarchal society like Nigeria with ingrained gender roles, obvious status inconsistencies may create some embarrassment for husbands. Situations where the wife is a medical practitioner and the husband is not working, for example, or where the wife is an accountant and the husband is a trader, could be perceived as a threat. </p>
<h2>Supportive interventions and laws</h2>
<p>In Nigeria, women’s labour market participation is rising. It is not just the presence of status inconsistency that provokes violent tendencies of male partners. Any move towards status equality – being on the same level as male partners, or outranking them – appears to be a risk factor for abuse. </p>
<p>Interventions to protect vulnerable women – such as counselling – should meet specific needs and provide appropriate support. </p>
<p>One formal approach to altering behaviour is to enact appropriate legislation that penalises violence. For example, currently, only half of the 36 states in Nigeria have adopted (in various forms) <a href="https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/104156/126946/F-1224509384/NGA104156.pdf">the Violence Against Persons (Prohibition) Act</a>, which aims to curb domestic violence.</p>
<p><a href="https://www.equalitynow.org/discriminatory_law/northern_nigeria_the_penal_code/">Certain laws</a>, grounded in cultural norms, continue to allow for wives to be beaten for the purpose of “correction”, as long as no long-lasting physical damage is done. </p>
<p>I would suggest that Nigerian society needs to reassess its ideas about gender and improve its legislation.</p><img src="https://counter.theconversation.com/content/182916/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nkechi Srodah Owoo has received various funding for research projects from institutions that include; International Development Research Centre, Bill and Melinda Gates Foundation and IZA and DFID.
</span></em></p>Women in more prestigious jobs than their husbands were seven times more likely to experience physical and emotional violence, compared to women ranked lower than their husbands.Nkechi Srodah Owoo, Senior lecturer, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1829082022-05-11T14:41:12Z2022-05-11T14:41:12ZUS Senate to vote on abortion rights bill – but what would it mean to codify Roe into law?<figure><img src="https://images.theconversation.com/files/462507/original/file-20220511-13-9qbhu7.jpg?ixlib=rb-1.1.0&rect=26%2C71%2C5964%2C3916&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Majority Leader Chuck Schumer speaks to reporters ahead of a vote on abortion rights.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortionCongress/788ce60694544a0e88e5cbb6aca84b6b/photo?Query=abortion%20Senate&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1277&currentItemNo=18">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p><em>The U.S. Senate is <a href="https://www.npr.org/2022/05/11/1097980529/senate-to-vote-on-a-bill-that-codifies-abortion-protections-but-it-will-likely-f">expected to vote on May 11, 2022</a>, on a bill that would enshrine the right to an abortion into law.</em></p>
<p><em>The Democrats’ bill, the <a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text">Women’s Health Protection Act</a>, isn’t expected to pass – a previous attempt was blocked by the Senate. But it reflects attempts by abortion rights advocates to find alternative ways to protect a woman’s right to the procedure following the publication of a <a href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473">leaked draft opinion</a> from Justice Samuel Alito indicating that a majority on the Supreme Court intend to overturn Roe v. Wade.</em></p>
<p><em>But is enshrining abortion rights via legislation feasible? And why has it not been done before? The Conversation put these questions and others to <a href="https://www.bu.edu/law/profile/linda-c-mcclain/">Linda C. McClain</a>, an expert on civil rights law and feminist legal theory at Boston University School of Law.</em></p>
<h2>What does it mean to ‘codify’ Roe v. Wade?</h2>
<p>In simple terms, to <a href="https://www.law.cornell.edu/wex/codify#:%7E:text=To%20codify%20means%20to%20arrange,by%20subject%2C%20into%20a%20code.">codify something</a> means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the <a href="https://www.nytimes.com/2022/05/03/us/what-is-roe-v-wade.html">same protections that Roe</a> did – so a law that states that women have a right to abortion without excessive government restrictions. It would be binding for all states.</p>
<p>But here’s the twist: Despite some politicians saying that they want to “codify Roe,” Congress isn’t looking to enshrine Roe in law. That’s because <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> hasn’t been in place since 1992. The Supreme Court’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood. v. Casey</a> ruling affirmed it, but also modified it in significant ways. </p>
<p>In Casey, the court upheld Roe’s holding that a woman has the right to choose to terminate a pregnancy up to the point of fetal viability and that states could restrict abortion after that point, subject to exceptions to protect the life or health of the pregnant woman. But the Casey court concluded that Roe too severely limited state regulation prior to fetal viability and held that states could impose restrictions on abortion throughout pregnancy to protect potential life as well as to protect maternal health – including during the first trimester.</p>
<p>Casey also introduced the “<a href="https://reproductiverights.org/wp-content/uploads/2020/12/WWH-Undue-Burden-Report-07262018-Edit.pdf">undue burden” test</a>, which prevented states from imposing restrictions that had the purpose or effect of placing unnecessary barriers on women seeking to end a pregnancy prior to viability of the fetus.</p>
<h2>What is the Women’s Health Protection Act?</h2>
<p>Current efforts to pass federal legislation protecting the right to abortion center on the proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text">Women’s Health Protection Act</a>, introduced in Congress by Rep. Judy Chu and sponsored in the Senate by Sen. Richard Blumenthal in 2021. It was passed in the House, but was <a href="https://time.com/6152473/abortion-roe-v-wade-democrats/">blocked in the Senate</a>. Democrats put the bill forward for a procedural vote again after Alito’s draft opinion was made public. Supporters of the bill are still expected to fall short of the votes they need. Rather, the vote is being used, in the <a href="https://www.npr.org/2022/05/10/1097820801/senate-democrats-plan-a-vote-on-abortion-rights-but-its-unlikely-to-pass">words of Democratic Sen. Amy Klobuchar</a>, “to show where everyone stands” on the issue.</p>
<p>The legislation would build on the undue burden principle in Casey by seeking to prevent states from imposing unfair restrictions on abortion providers, such as insisting a <a href="https://www.vice.com/en/article/vbnqw4/abortion-clinics-are-closing-because-their-doorways-arent-big-enough">clinic’s doorway is wide enough</a> for surgical gurneys to pass through, or that <a href="https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers">abortion practitioners need to have admitting privileges</a> at nearby hospitals. </p>
<p>The Women’s Health Protection Act uses the language of the Casey ruling in saying that these so-called TRAP (Targeted Regulation of Abortion Providers) laws place an “undue burden” on people seeking an abortion. It also appeals to Casey’s recognition that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” </p>
<h2>Has the right to abortion ever been guaranteed by federal legislation?</h2>
<p>You have to remember that Roe was very controversial from the outset. At the time of the ruling in 1973, most states had restrictive abortion laws. Up to the late 1960s, a <a href="https://www.nytimes.com/1973/01/28/archives/gallup-poll-finds-public-divided-on-abortions-in-first-3-months.html">majority of Americans opposed abortion</a>. A poll at the time of Roe found the public evenly split over legalization.</p>
<p>To pass legislation you have to go through the democratic process. But if the democratic process is hostile to what you are hoping to push through, you are going to run into difficulties.</p>
<p>Under the U.S. system, certain liberties are seen as so fundamental that protecting them should not be left to the whims of changing democratic majorities. Consider something like interracial marriage. Before the Supreme Court ruled in <a href="https://www.oyez.org/cases/1966/395">Loving v. Virginia State</a> that banning interracial marriages was unconstitutional, a number of states still banned such unions.</p>
<p>Why couldn’t they pass a law in Congress protecting the right to marry? It would have been difficult because at the time, the <a href="https://news.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx">majority of people were against</a> the idea of interracial marriage.</p>
<p>When you don’t have sufficient public support for something – particularly if it is unpopular or affects a non-majority group – appealing to the Constitution seems to be the better way to protect a right. </p>
<p>That doesn’t mean you can’t also protect that right through a statute, just that it is harder. Also, there is no guarantee that legislation passed by any one Congress isn’t then repealed by lawmakers later on.</p>
<h2>So generally, rights have more enduring protection if the Supreme Court rules on them?</h2>
<p>The <a href="https://www.supremecourt.gov/about/constitutional.aspx">Supreme Court has the final word</a> on what is and isn’t protected by the Constitution. In the past, it has been seen as sufficient to protect a constitutional right to get a ruling from the justices recognizing that right.</p>
<p>But this leaked opinion also points out that one limit of that protection is that the Supreme Court may overrule its own precedents.</p>
<p>Historically, it is unusual for the Supreme Court to take a right away. Yes, they said the <a href="https://www.oyez.org/cases/1850-1900/163us537">Plessy v. Ferguson ruling</a> – which set up the legal basis for separate-but-equal – was wrong, and overruled it in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>. But Brown recognized rights; it didn’t take rights away. </p>
<p>If Alito’s draft ruling is to be the final word, the Supreme Court will be taking away a right that has been in place since 1973. For what I believe is the first time since the end of the Lochner era, the Supreme Court would be overriding precedent to take away a constitutional right from Americans. While Justice Alito notes that, in 1937, the Court overruled “an entire line” of cases protecting “an individual liberty right against federal health and welfare legislation,” that “right” to economic liberty and freedom of contract was as much one of businesses as much as for individuals. The Court has not overruled of the long line of cases (in which Roe and Casey fit) protecting “liberty” in making significant decisions about intimacy, sexuality, family, marriage, and reproduction. </p>
<p>Moreover, the leaked opinion is dismissive of the idea that women have to rely on constitutional protection. “Women are not without electoral or political power,” <a href="https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504">Alito writes</a>, adding: “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”</p>
<p>But this ignores the fact that women <a href="https://www.nbcnews.com/think/opinion/roe-v-wade-overturned-supreme-court-abortion-draft-alitos-legal-analys-rcna27205">rarely make up close to half</a> of the members of most state legislative bodies.</p>
<h2>So are the promises to get Congress to protect abortion rights realistic?</h2>
<p>Republicans in the Senate successfully blocked the proposed Women’s Health Protection Act. And unless things change dramatically in Congress, there isn’t much chance of the bill becoming law. </p>
<p>There has been talk of trying to <a href="https://www.reuters.com/legal/government/us-supreme-court-abortion-move-sparks-calls-ending-senates-filibuster-2022-05-04/">end the filibuster rule</a>, which requires 60 votes in the Senate to pass legislation. But even then, the 50 votes that would be needed might not be there.</p>
<p>What we don’t know is how this Supreme Court leak will affect the calculus. Maybe some Republican senators will see that the writing is on the wall and vote with Democrats. Republican senators Susan Collins and Lisa Murkowski <a href="https://www.collins.senate.gov/newsroom/senators-collins-and-murkowski-introduce-bill-to-codify-supreme-court-decisions-on-reproductive-rights_roe-v-wade-and-planned-parenthood-v-casey">introduced legislation</a> earlier this year that would codify Roe in law, but isn’t as expansive as the Women’s Health Protection Act. Senator Collins has <a href="https://www.washingtonpost.com/politics/2022/05/05/sen-collins-voices-opposition-legislation-that-would-create-statutory-right-abortion/">recently indicated</a> that she will not support the Act out of concern for religious liberty of anti-abortion health providers. </p>
<p>And then we have the midterm elections in November, which might shake up who’s in Congress. If the Democrats lose the House or fail to pick up seats in the Senate, the chances of pushing through any legislation protecting abortion rights would appear very slim. Democrats will be hoping that the Supreme Court ruling will mobilize pro-abortion rights voters.</p>
<h2>What is going on at a state level?</h2>
<p>Liberal states like Massachusetts have <a href="https://www.boston.com/news/policy/2020/12/29/massachusetts-senate-override-abortion-access/">passed laws that codify Roe v. Wade</a>. Now that the Supreme Court’s apparent intentions are known, expect similar moves elsewhere. Massachusetts and other states are looking to go a step further by <a href="https://www.npr.org/2022/05/01/1095813226/connecticut-abortion-bill-roe-v-wade">protecting residents who help out-of-state women</a> seeking abortion. Such laws would seemingly counter moves by states like Missouri, which is seeking to <a href="https://www.latimes.com/opinion/story/2022-03-11/editorial-missouri-might-make-it-illegal-to-help-a-woman-get-an-abortion-elsewhere-thats-ridiculous">push through legislation that would criminalize helping women</a> who go out of state for abortions.</p>
<h2>Wouldn’t any federal law just be challenged at the Supreme Court?</h2>
<p>Should Congress be able to pass a law enshrining the right to abortion for all Americans, then surely some conservative states will seek to overturn the law, saying that the federal government is exceeding its authority. </p>
<p>If it were to go up to the Supreme Court, then conservative justices would presumably look unfavorably on any attempt to limit individual states’ rights when it comes to abortion. Similarly, any attempt to put in place a federal law that would restrict abortion for all would seemingly conflict with the Supreme Court’s position that it should be left to the states to decide. </p>
<p><em>This is an updated version of an article <a href="https://theconversation.com/what-would-it-mean-to-codify-roe-into-law-and-is-there-any-chance-of-that-happening-182406">originally published on May 5, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/182908/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Linda C. McClain does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Lawmakers in the US Senate are set to vote on a bill that would enshrine abortion into law. But is there a route to legislation?Linda C. McClain, Professor of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1822322022-05-05T02:47:53Z2022-05-05T02:47:53ZRecent COVID-19 court cases show New Zealand’s Bill of Rights Act is not as strong as some might wish<figure><img src="https://images.theconversation.com/files/461427/original/file-20220505-16-7lmfd1.jpg?ixlib=rb-1.1.0&rect=3%2C0%2C2114%2C1412&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>While the recent legal challenges to elements of the government’s COVID-19 response have had mixed results in the courts, they have revealed something important – how the rule of law works in New Zealand. </p>
<p>In the past two years, a raft of laws have been passed or amended as the government put its response to COVID-19 on a legal footing. </p>
<p>Some of these laws have been subsequently challenged in the courts, starting with the <a href="https://www.courtsofnz.govt.nz/assets/cases/CA2392020.pdf">Borrowdale case</a> in May 2020. Plaintiff Andrew Borrowdale argued the government’s lockdown orders were based on an improper use of its powers under the Health Act and that a range of New Zealanders’ rights had been violated as a result.</p>
<p>Other cases have argued, with varying degrees of success, that the government’s requirement of mandatory vaccinations violated the rights of some New Zealanders.</p>
<p>At the end of April, the <a href="https://www.courtsofnz.govt.nz/cases/grounded-kiwis-group-incorporated-v-minister-of-health">High Court found</a> the border quarantine (MIQ) system did work well to protect public health and many of the resulting restrictions on rights were justifiable. </p>
<p>However, the court also found the allocation of space in MIQ through a virtual lobby system amounted to an unjustifiable limit on the <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225517.html">right of New Zealand citizens to return</a> because it did not prioritise citizens over non-citizens, and it did not prioritise on individual need or delays experienced.</p>
<p>What we see in these cases is the New Zealand constitution in action, operating as a system of checks and balances to protect individuals from arbitrary interference by the state. </p>
<p>As an aspect of that, the cases show the operation of the <a href="https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/">rule of law</a>, which means any power exercised by the government has to be based on legal authority and that everyone is subject to the law, whether they are members of the public or politicians.</p>
<figure class="align-center ">
<img alt="Sign outside a hotel used for managed isolation." src="https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461124/original/file-20220503-23-hx9wce.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A recent court case challenged the legality of the government’s managed isolation and quarantine (MIQ) system, with mixed success.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com.au/detail/news-photo/hotels-boundary-fences-have-signs-explaining-their-purpose-news-photo/1237503651?adppopup=true">Adam Bradley/Getty Images</a></span>
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<h2>Bill of Rights has its limits</h2>
<p>The Bill of Rights Act plays an important role in that regard, although its ability to protect our rights is not as strong as we might like to think.</p>
<p>There are four ways the Bill of Rights works in the creating of laws. </p>
<p>Firstly, the Bill of Rights Act states clearly that it does <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225500.html">not affect</a> all other laws passed before or after it simply because those laws are inconsistent with the Bill of Rights. </p>
<p>For example, New Zealanders have the right to protest but their <a href="https://theconversation.com/protesting-during-a-pandemic-new-zealands-balancing-act-between-a-long-tradition-of-protests-and-covid-rules-171104">protest actions</a> cannot be unduly disorderly, violent or unsafe. Neither can the courts use the Bill of Rights Act to invalidate the <a href="https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344134.html">COVID-19 Public Health Response Act 2020</a>.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-far-should-compulsory-proof-of-vaccination-go-and-what-rights-do-new-zealanders-have-165317">How far should compulsory proof of vaccination go — and what rights do New Zealanders have?</a>
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<p>The Bill of Rights Act does, however, stipulate that wherever an act, such as the <a href="https://www.legislation.govt.nz/act/public/1956/0065/latest/whole.html">Health Act</a>, can be interpreted in a manner that is consistent with the Bill of Rights, then that interpretation is to be <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225502.html">preferred</a>. </p>
<p>Thirdly, the Bill of Rights Act, on the whole, does not protect absolutely the rights of New Zealanders, but any restrictions on those rights must be <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225501.html">justifiable</a>. </p>
<p>This balancing act has been at the core of the COVID cases so far. The limitations on the <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225509.html">right to refuse medical treatment</a>, for example, have largely been justified on the grounds of <a href="https://theconversation.com/should-a-covid-19-vaccine-be-compulsory-and-what-would-this-mean-for-anti-vaxxers-143742">public health</a>.</p>
<p>Finally, the attorney-general is required to report to parliament when they find any proposed law appears to be
<a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225503.html">inconsistent</a> with the Bill of Rights. Parliament is still free to pass the proposed law, thanks to the provision outlined above.</p>
<h2>The point of the Bill of Rights</h2>
<p>At this stage, we might be left wondering what the point of the New Zealand Bill of Rights Act actually is. </p>
<p>The Act still operates as a mechanism by which New Zealanders can challenge the law in the courts, and the courts can scrutinise the law in question. </p>
<figure class="align-center ">
<img alt="Ashley Bloomfield speaks to reporters." src="https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=534&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=534&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461125/original/file-20220503-15-1h4o65.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=534&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Director-General of Health Ashley Bloomfield has been the subject of several court cases challenging the government’s COVID-19 response.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com.au/detail/news-photo/director-general-of-health-dr-ashley-bloomfield-during-the-news-photo/1237917478?adppopup=true">Mark Mitchell-Pool/Getty Images</a></span>
</figcaption>
</figure>
<p>Even if they can’t force the government to change the law, judges can point out any problems and put the onus back on the government to respond. </p>
<p>One aspect of this part of the constitutional process is a “declaration of inconsistency”, which allows judges to signal to the government and parliament that a law has seriously problematic implications for the protection of rights and freedoms contained in the Bill of Rights Act.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/five-ways-new-zealanders-lives-and-liberties-will-be-heavily-controlled-even-after-lockdown-eases-136237">Five ways New Zealanders' lives and liberties will be heavily controlled, even after lockdown eases</a>
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</em>
</p>
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<p>Efforts to improve this part of the constitutional system of checks and balances are currently under further discussion, as the <a href="https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_96241/new-zealand-bill-of-rights-declarations-of-inconsistency">New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill</a> makes its way through parliament, providing another example of our constitution and our democracy at work.</p>
<h2>Limited options for change</h2>
<p>If New Zealanders are unhappy with the current state of play regarding their own rights and the powers of the government, they have two options. Both are based on a question of trust. </p>
<p>Disgruntled kiwis can leave things as they are and continue to trust our elected representatives to protect our rights and freedoms. Any perceived failures in that regard can be dealt with at the ballot box. </p>
<p>Alternatively, those dissatisfied with the situation can push to change the New Zealand Bill of Rights Act itself to allow judges to have greater powers to curb parliament’s law-making power. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-border-restrictions-increase-to-combat-new-covid-19-strains-what-rights-do-returning-new-zealanders-have-153962">If border restrictions increase to combat new COVID-19 strains, what rights do returning New Zealanders have?</a>
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<p>But changing the balance of law-making in favour of the courts involves a greater level of trust in those who are not so easily removed from power.</p>
<p>In a 2017 <a href="https://www.youtube.com/watch?v=BOm0h-z3W-Y">public talk</a>, former prime minister and constitutional legal expert Geoffrey Palmer traversed these difficult issues. Somewhat presciently, however, he noted that such changes should not be undertaken in a time of crisis. </p>
<p>Trust in the rule of law to ensure the accountability of government – the structures of governance that stand aside the electoral ebbs and flows of political parties – is a core aspect of our democracy. </p>
<p>The “COVID cases” shine an important light on how the rule of law works in Aotearoa New Zealand; how the courts, the government and parliament must continue to work to ensure the rights of New Zealanders. </p>
<p>Even if now is not the time for change, as we emerge from this current crisis, it may well be the time to reflect on the importance of the rule of law as we continue to navigate uncertain seas.</p><img src="https://counter.theconversation.com/content/182232/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Breen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some New Zealanders say the government’s COVID-19 response has violated their rights, but do freedoms granted by the Bill of Rights trump the rest of the legal framework?Claire Breen, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1741752021-12-23T13:14:23Z2021-12-23T13:14:23ZManchin takes aim at Build Back Better, but his real focus is on West Virginia<figure><img src="https://images.theconversation.com/files/438902/original/file-20211222-21-k7cg8m.png?ixlib=rb-1.1.0&rect=8%2C10%2C1415%2C774&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Putting his sights on Build Back Better?</span> <span class="attribution"><a class="source" href="https://www.youtube.com/watch?v=tNte7Vr-IJg">Manchin for West Virginia/YouTube</a></span></figcaption></figure><p>Joe Manchin isn’t averse to taking a shotgun to policy he dislikes.</p>
<p>In 2018, the senator <a href="https://www.youtube.com/watch?v=tNte7Vr-IJg">starred in a political ad</a> in which he explains how a <a href="https://www.wvnews.com/news/wvnews/manchin-morrisey-continue-dispute-over-affordable-care-act-lawsuit-wv-health-care-legislation/article_55341fe1-cd08-5b34-b08d-3ab0434c5b6a.html">lawsuit to repeal the Affordable Care Act</a> – something his opponent, state attorney general Patrick Morrisey, was at the time trying to do – would strip health care from numerous West Virginians. Manchin then takes out a shotgun and unloads on the Morrissey lawsuit.</p>
<p>The ad, titled “Dead Wrong,” simultaneously displays Manchin’s support for a popular program while signaling a <a href="https://www.cnn.com/2021/03/23/politics/manchin-house-gun-bills-democrats/index.html">pro-gun stance</a>.</p>
<p>It is also instructive for understanding the political challenge that Manchin faces over the Biden administration’s Build Back Better bill – legislation that Manchin has seemingly torpedoed.</p>
<p>As a <a href="https://www.samuelworkman.org/about/">scholar and native of the state</a> who has long followed West Virginian politics, I know that Manchin is typically deft in balancing support for government programs that will benefit people in the state with the <a href="https://www.pewforum.org/religious-landscape-study/state/west-virginia/political-ideology/">social conservatism</a> that many adhere to. It is what he did in the “Dead Wrong” ad, and it is what he is trying to do now by delivering tangible benefits on some dimensions, while “standing up” to the president and Democratic leadership on others.</p>
<h2>What say the lodestar?</h2>
<p>There are reasons to suppose that West Virginians would be in favor of many elements contained in Build Back Better, Biden’s package of legislation that aims to fix problems ranging from child care costs to climate change.</p>
<p>The legislation contains not only the <a href="https://www.cbpp.org/research/federal-tax/build-back-betters-child-tax-credit-changes-would-protect-millions-from">child tax credit</a>, which would send monthly payments of up to $300 per child to families across the U.S., but also <a href="https://www.americanprogress.org/article/the-build-back-better-act-would-improve-health-care-and-lower-costs/">improvements to the Affordable Care Act</a>, upgraded infrastructure for health care, and better access to housing. Its largest portion is <a href="https://www.washingtonpost.com/climate-environment/2021/10/28/climate-biden-build-back-better/">$555 billion dedicated to climate change</a> – representing the first major legislative action on climate in the U.S.</p>
<p>In a state where <a href="https://worldpopulationreview.com/state-rankings/poverty-rate-by-state">poverty is high</a>, <a href="https://dailyyonder.com/rural-health-care-is-in-crisis-here-are-5-innovative-ways-biden-can-help-it-transform/2021/01/26/">rural health care is sparse</a> and <a href="https://19january2017snapshot.epa.gov/sites/production/files/2016-09/documents/climate-change-wv.pdf">climate change threatens</a> to bring frequent, intense flooding, it seems unimaginable that the senator would fail to support the legislation.</p>
<p>Yet on Dec. 19, 2021, Manchin <a href="https://www.foxnews.com/us/manchin-cant-support-build-back-better-act-media-critics-american-democracy-fox-news-first">announced on Fox News</a> that he would not. That Manchin did this on Fox News speaks to the general public sentiment in West Virginia.</p>
<p>It sparked a very public “battle of the Joes” in which Biden maintained that Manchin <a href="https://www.theguardian.com/us-news/2021/dec/19/joe-manchin-biden-build-back-better-no-fox-news?CMP=Share_AndroidApp_Other">dealt in bad faith</a> after months of personal cajoling and negotiations by the president. Manchin, for his part, <a href="https://www.washingtonpost.com/us-policy/2021/12/20/manchin-biden-child-tax-credit/">reportedly offered Biden everything</a> in Build Back Better except for the Child Tax Credit.</p>
<p>The fight threatens consequences for man and party. The viability of the razor-thin Democratic majority’s ability to govern headed into the 2022 midterms is at stake. But the conflict also poses a major problem for Manchin himself, with Biden using Manchin’s opposition to the child tax credit as a political pressure point – <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/19/statement-from-press-secretary-jen-psaki-4/">publicly shaming the West Virginian</a> for failing to support a measure that would deliver support to many families in his own state.</p>
<h2>Reconciliation masks broad agreement</h2>
<p>To understand what Manchin opposes, it’s useful to understand what reconciliation does to a multidimensional bill. </p>
<p>Normally, major legislative initiatives would each have their own bill. But each would need to pass the Senate with 60 votes in order to avoid a filibuster that could end up killing the bill. To get past that hurdle, Democrats have piled all of Biden’s initiatives into what’s called a <a href="https://budget.house.gov/publications/fact-sheet/budget-reconciliation-basics">budget reconciliation bill</a>, which only requires a majority of votes to pass – a much lower threshold and one that a united Democratic Party could meet in the Senate.</p>
<p>Yet because legislators must cast a single vote for what is a diverse package, disagreement on one dimension can sink the whole reconciliation bill – even if there is broad agreement on the other proposals. In this case, Manchin wants to jettison the child tax credit, but made an offer that reportedly includes the improvements to the ACA, health care infrastructure, as well as the climate change provisions – remarkable for a senator from a state so <a href="https://www.eia.gov/state/analysis.php?sid=WV">dependent on fossil fuels</a> for economic growth and stability.</p>
<p>It is likely Manchin will return to the bargaining table over the next few weeks, absent, or in spite of, the public shaming over the child tax credit from the president.</p>
<h2>The typical Manchin pivot</h2>
<p>West Virginians tend toward conservative views on typical culture war issues like guns, abortions and race. </p>
<p>The purported support for Build Back Better in West Virginia is <a href="https://twitter.com/DataProgress/status/1473735609885896705?s=20">likely overstated</a> among the electorate – polling is sparse and generally done by supportive organizations – though West Virginians typically are in favor of government programs that benefit them. Winning elections in West Virginia historically entails candidates pledging to bring home benefits to the state. And this is exactly the approach Manchin typically adopts, delivering policy that has majority support, while signaling his fidelity to culture war issues.</p>
<p>Manchin has continually referred to his <a href="https://highlandcountypress.com/Content/Opinions/Opinion/Article/If-I-can-t-go-back-home-and-explain-it-I-can-t-vote-for-it/4/22/74743">constituents as his lodestar</a> – “If I can’t go back home and explain it, I can’t vote for it.”</p>
<p>Normally, Manchin gets pressure on social issues from the more liberal wing of the Democratic Party. This criticism from the wider party is fuel for his positioning and policy goals within the state. On such issues, the more criticism he receives from the Left, the better. He is deft at pivoting on this pressure to make policy that has general support in the state, such as displayed in the “Dead Wrong” ad.</p>
<p>The public pressure on child tax credits is not the norm and does not offer the same pivot for Manchin. West Virginians value programs like the child tax credit. </p>
<p>Furthermore, <a href="https://www.forbes.com/sites/christianweller/2021/12/21/child-tax-credit-is-crucial-lifeline-for-families-especially-in-west-virginia/?sh=5fcf43fa7832">support in the state</a> for child tax credits means Manchin is left exposed politically in a way that damages his ability to maintain the fragile coalition that he normally relies on. And, despite <a href="https://www.politico.com/news/2021/02/02/manchin-sinema-challengers-464821">progressive outcry for a primary challenger</a>, make no mistake about it, no other Democrat could hold that West Virginian seat.</p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-understand">Subscribe to The Conversation’s politics newsletter</a>.]</p>
<p>Manchin’s seeming obstinance can be understood in <a href="https://medium.com/3streams/the-left-doesnt-speak-wv-senator-joe-manchin-817d9e5b08a">two ways</a>. He’s either a conservative Democrat failing to get behind the president’s legislative agenda, or he simply wants to prioritize programs within that agenda that keeps to a general spending target.</p>
<p>Manchin’s opposition to the child tax credit reflects his concern about how the monthly benefit will affect the budget. Simultaneously, colleagues say he is concerned over how lower-income citizens will spend the money, <a href="https://abcnews.go.com/Politics/sen-joe-manchin-suggests-child-tax-credit-payments/story?id=81865740">reportedly worrying</a> about it <a href="https://www.huffpost.com/entry/joe-manchin-build-back-better-child-tax-credit-drugs_n_61bf8f6be4b061afe394006d">being spent on drugs</a>.</p>
<p>This second concern echoes a common conservative trope. But if a comment like that might hurt a politician in a liberal state, it is understandable in the context of the West Virginia electorate’s social conservatism.</p>
<p>Despite Manchin’s comments sparking predictions that his position <a href="https://thehill.com/opinion/finance/586867-joe-manchin-just-killed-build-back-better-and-saved-the-us-economy-in-the">doomed Build Back Better</a>, it may not be as <a href="https://www.theatlantic.com/ideas/archive/2021/03/what-drives-joe-manchin/618208/">clear cut as that</a>.</p>
<p>The senator’s willingness to accept all the other major provisions in the bill leaves plenty of room for bargaining. If Manchin can find a way to do his customary pivot – supporting the Democratic proposals while satisfying his constituents that he’s being socially conservative and standing up to the Left – he may well get on board and put away the shotgun.</p><img src="https://counter.theconversation.com/content/174175/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samuel Workman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Senator Joe Manchin’s position on Build Back Better balances delivering for people in his state while not offending their social conservatism, writes a scholar of Appalachian politics.Samuel Workman, Professor of Political Science, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1720232021-12-20T20:48:41Z2021-12-20T20:48:41ZDon’t care about the Build Back Better Act? Hearing people’s personal stories might change that<figure><img src="https://images.theconversation.com/files/438249/original/file-20211217-15-1fct5iz.jpeg?ixlib=rb-1.1.0&rect=8%2C26%2C5982%2C3961&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Reporters waiting outside a private meeting between advisers to President Biden and Sens. Joe Manchin and Kyrsten Sinema about the Build Back Better Act on Capitol Hill, Sept. 30, 2021.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressBudget/8eaf42ddb30d4536807c656f6a36f998/photo?Query=Manchin%20Sinema&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=97&currentItemNo=45">AP Photo/Andrew Harnik</a></span></figcaption></figure><p>When U.S. Sen. Joe Manchin, D-W.Va., <a href="https://www.cnn.com/2021/12/19/politics/joe-manchin-build-back-better/index.html">said</a> that he wouldn’t support President Joe Biden’s signature Build Back Better Act, he set off a wave of breaking <a href="https://www.sfgate.com/news/article/Alert-White-House-accuses-Sen-Joe-Manchin-of-16713948.php">news alerts</a>. </p>
<p>It was fitting. For months, <a href="https://www.cnn.com/2021/12/02/politics/joe-manchin-biden-build-back-better/index.html">media coverage</a> has breathlessly focused on the behind-the-scenes wrangling and hour-by-hour negotiations around the legislation. How much has been slashed from the bill today? What does it mean for the future of the Democratic and Republican parties?</p>
<p>The roughly <a href="https://apnews.com/article/climate-immigration-joe-biden-health-lifestyle-bff841da156cb12cd47a564f9e0267eb">US$2 trillion proposal</a> is designed to bolster what is widely seen as a frayed social safety net. But most Americans don’t think it will benefit people like them, a recent <a href="https://maristpoll.marist.edu/polls/npr-marist-national-poll-biden-economic-stimulus-december-2021/">NPR/Marist poll</a> shows. And a quarter of Americans can’t even say whether they like or dislike the legislation.</p>
<p>It’s no wonder the nation is so indifferent about the <a href="https://www.vox.com/2021/12/13/22799436/build-back-better-senate-manchin-parliamentarian">sweeping bill, which would change</a> the country’s tax system, increase social services and ramp up efforts to combat climate change.</p>
<p>Largely omitted from news coverage – and consequently, from the national conversation – are the voices and stories of individuals who would be affected by the legislation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Sen. Kyrsten Sinema, masked, leaving an office in the Senate, surrounded by people." src="https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=517&fit=crop&dpr=1 754w, https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=517&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/438535/original/file-20211220-19-18oyus5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=517&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The comings and goings of Senate Democratic holdouts Joe Manchin and Kyrsten Sinema, seen here after leaving a meeting with Manchin, have been obsessively covered by the press.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sen-kyrsten-sinema-leaves-her-office-after-meeting-with-sen-news-photo/1347942834?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<h2>Focusing outside D.C.</h2>
<p>What if daily media coverage instead featured those voices? What if reporters and talk show hosts ditched the pundits and issue experts and instead explored the problems that led to the proposed policies – through the eyes and voices of those living with those problems? </p>
<p>That means we would hear from parents who need help paying for <a href="https://www.ffyf.org/faq-on-the-child-care-and-preschool-provisions-in-the-build-back-better-act/">child care</a> and elderly people who can’t afford <a href="https://www.marketwatch.com/story/build-back-better-whats-in-it-for-seniors-11637696775">medicines</a> or <a href="https://www.kff.org/health-costs/issue-brief/potential-costs-and-impact-of-health-provisions-in-the-build-back-better-act/">hearing aids</a>. </p>
<p>We would hear from people who can’t afford <a href="https://www.cbpp.org/research/health/build-back-better-increases-health-coverage-and-makes-it-more-affordable">health care</a>, people living in their cars or <a href="https://time.com/6121415/build-back-better-spending-bill-summary/">on the streets</a>, and yes, those who earn more than $400,000 a year. Multimillionaires, billionaires and corporations would pay more under the new tax plan. </p>
<p>What if news stories shined a spotlight on these voices, rather than just throwing in an occasional anecdote? Would people tune in? Would they engage in conversations or take action around the legislation? </p>
<p>Research shows that they likely would. And that would be good for democracy.</p>
<h2>Real stories can spark real engagement</h2>
<p>It’s well documented that <a href="https://methods.sagepub.com/reference/encyclopedia-of-survey-research-methods/n211.xml">horse-race journalism</a> – which treats politics as a sport, focusing on who’s ahead or behind, rather than the substance of issues – is associated with an uninformed electorate and elevates <a href="https://journalistsresource.org/politics-and-government/horse-race-reporting-election/">public cynicism</a> about politics. Such coverage doesn’t help people understand what proposals could mean to them. </p>
<p>Policy overviews filled with large numbers don’t engage people, either. When discussing the Build Back Better Act, proponents understandably focus on the scope of the problem: <a href="https://www.cbpp.org/research/health/closing-medicaid-coverage-gap-would-help-diverse-group-and-narrow-racial">2.2 million</a> low-income Americans couldn’t get health insurance subsidies in 2019 but also weren’t eligible for Medicaid. </p>
<p><a href="https://time.com/6121415/build-back-better-spending-bill-summary/">Just 23%</a> of civilian workers can take paid family leave, and <a href="https://time.com/6121415/build-back-better-spending-bill-summary/">more than 800,000 seniors and disabled</a> people seeking home health care are on state Medicaid waiting lists. </p>
<p>But science tells us that discussing large-scale suffering makes people turn away. The phenomenon is called <a href="https://www.arithmeticofcompassion.org/psychic-numbing">psychic numbing</a>. It means the problem is so big that people disengage, because they feel powerless to help. And individuals find it <a href="https://theconversation.com/millions-billions-trillions-how-to-make-sense-of-numbers-in-the-news-86509">hard to understand the scale of large numbers</a>.</p>
<p>The way to combat this? Journalists can tell <a href="https://www.youtube.com/watch?v=6paG7dwhLHI">stories about real people</a>. Personal stories quickly bring big issues into focus and make them relatable. They make people care. </p>
<p>In 2015, for example, the Syrian refugee crisis had been raging for four years. But it took a picture of 3-year-old <a href="https://time.com/4162306/alan-kurdi-syria-drowned-boy-refugee-crisis/">Alan Kurdi</a>, whose corpse washed up on a Turkish beach after his family fled Syria by boat, to generate international horror. </p>
<p>After the photo of the young Syrian boy went viral, donations to refugee organizations <a href="https://www.kgw.com/article/tech/science/psychic-numbing-why-we-stop-caring/283-35da22bd-0fc3-4880-909b-8b3c4053476a">skyrocketed</a>. The story and photo engaged people who had not yet paid attention to the crisis. </p>
<p>Research backs up the notion that including real people in news stories can spark reader engagement.</p>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/1077699012439020">A 2012 study</a> compared people’s reactions after they read two versions of a news story detailing how the lack of health care affected one of three groups: immigrants, prisoners or the elderly. </p>
<p>[<em>Understand what’s going on in Washington.</em> <a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-most">Sign up for The Conversation’s Politics Weekly</a>.]</p>
<p>One version presented the issue using quotes from experts. The other version included a story about a specific person’s experiences dealing with that health care issue. </p>
<p>The news pieces that featured people’s stories elicited emotions in readers that the policy pieces did not. That led the participants to be more willing to help the people they read about. </p>
<p>Including real people in news stories doesn’t mean that engaged readers will only feel sympathy for the characters profiled. Engagement could produce support or opposition to proposed policies. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Joe Biden speaks at a lectern in front of large Building Back Better posters. American flags flank him on the podium." src="https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/437634/original/file-20211214-17-cl5rdj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Build Back Better bill has been a top priority of the Biden administration. But most Americans have not closely followed the legislation.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/president-joe-biden-speaks-at-the-nj-transit-meadowlands-maintenance-picture-id1236125547?s=2048x2048">Photo by Andrew Caballero-Reynolds/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Looking beyond the political play-by-play</h2>
<p>The Build Back Better Act – which the U.S. House of Representatives <a href="https://time.com/6121415/build-back-better-spending-bill-summary/">passed</a> in November – comes as civic engagement in the U.S. <a href="https://www.prri.org/research/american-democracy-in-crisis-civic-engagement-young-adult-activism-and-the-2018-midterm-elections/">is low</a>. </p>
<p>Considering the scope and potential impact of this bill, it’s a disservice to the country for news coverage to focus on the play-by-play in Washington, D.C. </p>
<p>If the press eases up on the machinations occurring in the marble halls of Washington, D.C., and instead focuses on real people, the U.S. could perhaps build back something else: civic engagement, a necessary part of our democratic system.</p><img src="https://counter.theconversation.com/content/172023/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Angela Bradbery does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A quarter of Americans don’t know how they feel about the Build Back Better Act. Focusing on Americans’ individual stories – and not just political theater – could help fuel civic engagement.Angela Bradbery, Frank Karel Endowed Chair in Public Interest Communications, University of FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1734052021-12-15T19:07:46Z2021-12-15T19:07:46ZPrior’s warning: what would NZ’s greatest 20th century philosopher have said about civil liberties in the COVID age?<figure><img src="https://images.theconversation.com/files/437664/original/file-20211214-13-11ngan7.jpg?ixlib=rb-1.1.0&rect=40%2C0%2C6669%2C4476&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">GettyImages</span></span></figcaption></figure><p>Vaccines, their mandates and certificates have ignited heated debate about civil liberties in New Zealand. Add <a href="https://www.miq.govt.nz/">MIQ</a>, climate change, the government’s <a href="https://threewaters.govt.nz/">Three Waters</a> policy and proposed hate speech legislation, and it’s easy to see what’s fuelling the so-called culture wars.</p>
<p>Opinion on both the left and right, on social media and on the streets during the recent anti-lockdown and <a href="https://www.nzherald.co.nz/nz/groundswell-founders-distance-themselves-from-racist-protesters/W7SFVIN7CIDY4UXGWNF245QNPU/">Groundswell protests</a> has been highly polarised.</p>
<p>Accusations of authoritarianism (and worse) are levelled at the Ardern government, while opponents of its COVID policies are dismissed or vilified. There can appear to be little reasoned thought or common ground.</p>
<p>But are these new phenomena, or do they perhaps signal a deeper pattern in the New Zealand temperament?</p>
<h2>Habits and weaknesses</h2>
<p>The writer Bill Pearson’s essay, <a href="https://publicaddress.net/great-new-zealand-argument/fretful-sleepers/">Fretful Sleepers</a>, written in the wake of the <a href="https://nzhistory.govt.nz/politics/the-1951-waterfront-dispute">1951 waterside dispute</a>, famously depicted his fellow citizens as what some might now call “sheeple”.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=990&fit=crop&dpr=1 600w, https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=990&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=990&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1244&fit=crop&dpr=1 754w, https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1244&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/437667/original/file-20211214-27-r7l8bl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1244&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Arthur Prior in Christchurch, 1953.</span>
<span class="attribution"><span class="source">Martin H. Prior</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>He warned there “is no one more docile in the face of authority than the New Zealander”, a condition he said arose from “a docile sleepy electorate, veneration of war heroes, willingness to persecute those who don’t conform, gullibility in the face of headlines and radio pep talks”.</p>
<p>But there’s another critique that, while not as well known, is arguably more balanced and nuanced. It can be found in an address to the Civil Liberties Council in 1955 by <a href="https://www.stuff.co.nz/the-press/news/111207418/its-time-to-honour-arthur-prior">Arthur Prior</a>, the greatest New Zealand philosopher of the 20th century.</p>
<p>In his speech, titled “The Threat to Civil Liberties in New Zealand, Today and Tomorrow”, Prior identified three “rather deep-seated national habits and weaknesses […] in our national temperament”. He argued these threatened our liberties more than any organised or systematic action by an individual or group.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-century-on-from-the-1919-influenza-inquiry-nz-needs-a-royal-commission-into-its-covid-19-response-173494">A century on from the 1919 influenza inquiry, NZ needs a royal commission into its COVID-19 response</a>
</strong>
</em>
</p>
<hr>
<h2>Careless legislation</h2>
<p>Firstly, Prior identified “what might be called our habit of lazy and careless legislation” – laws that enter the statue books not because of any conspiracy but because “of a lack of concern and watchfulness”. He warned:</p>
<blockquote>
<p>Something will be brought in during an emergency or supposed emergency – and at such times it is always liberty that suffers first – and then it just stays there, like a ‘temporary’ building, but with less justification.</p>
</blockquote>
<p>Prior worried about the lack of safeguards in the law, noting that while oppressive provisions were not often applied, they sat dormant, able to be applied if deemed necessary. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/protesting-during-a-pandemic-new-zealands-balancing-act-between-a-long-tradition-of-protests-and-covid-rules-171104">Protesting during a pandemic: New Zealand's balancing act between a long tradition of protests and COVID rules</a>
</strong>
</em>
</p>
<hr>
<p>He called this “oppression on paper with liberty in fact” – that is, daily life continues unaffected <em>until</em> a government threatens to enact the dormant legislation. Prior observed that such threats had been successfully used against trade union officials, newspapers and booksellers.</p>
<p>Today, in an age of emergency public health legislation rushed in under urgency, it’s again important to ask how long such laws will remain in force under this or any future government.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/437671/original/file-20211214-23-ffkjv6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Civil liberties and conformity: police and strikers clash in Wellington during the 1951 waterfront dispute.</span>
<span class="attribution"><a class="source" href="https://natlib.govt.nz/records/23052149">Alexander Turnbull Library</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<h2>Political tribalism</h2>
<p>Prior defined the second weakness as “unscrupulous party spirit” – what today we might call political tribalism – whereby “we cannot admit that sometimes our own bunch are wrong and the other bunch is right”.</p>
<p>We see this today in entrenched party political positions, where few or none are prepared to dissent publicly or vote against their own party.</p>
<p>While <a href="https://elections.nz/democracy-in-nz/what-is-new-zealands-system-of-government/what-is-mmp/">MMP</a> was meant to allow both greater consensus and diversity of views, in reality we see an intensification of party discipline and enforced “party spirit”.</p>
<p>The other element of this tribalism is the new populism, or what’s been termed a “<a href="https://quillette.com/2019/07/02/post-liberal-politics-left-right-and-center/">post-liberal</a>” shift. This combines traditionally left- and right-wing ideas in new, emotive ways that pitch “the people” against a claimed corrupt political and media “elite”.</p>
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Read more:
<a href="https://theconversation.com/to-be-truly-ethical-vaccine-mandates-must-be-about-more-than-just-lifting-jab-rates-169612">To be truly ethical, vaccine mandates must be about more than just lifting jab rates</a>
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<h2>Blanket of silence</h2>
<p>Prior identifies the third weakness as “a certain excessive readiness to take offence which we New Zealanders exhibit”. As he put it:</p>
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<p>For some reason it is only too easy for a person or organisation to go to the powers that be and say, ‘Look here, it hurts us to hear somebody saying so-and-so’, and the powers that be will reply, ‘Goodness me, I’m sorry to hear that – we’ll just stop them saying it then’.</p>
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<p>Prior thought New Zealanders were “too touchy” and authorities too willing “to silence voices which this or that group not only does not want to hear, but does not want others to hear”.</p>
<p>This sounds similar to the rise of 21st century “cancel culture”, whether that be the “pile on” tendencies of the Twittersphere or the vexed intricacies of the proposed hate speech legislation.</p>
<p>New Zealanders like to speak out about what they oppose, Prior said, but not about what they like. This meant they operated under “a comfortable blanket of silence”. </p>
<p>Because we don’t tend to speak out in support of the rights of others to say controversial things we don’t agree with, Prior says, it “is deplorably easy” to be united “in coddling our sectional prejudices and in listening to those who would have us all wrapped up in intellectual cotton wool”.</p>
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<h2>A question of spirit</h2>
<p>Underlying all this was the idea of “spirit” – what we draw on to make sense of ourselves, our values and our world. It’s an echo of the author <a href="https://teara.govt.nz/en/biographies/5b40/brasch-charles-orwell">Charles Brasch</a>’s statement in the inaugural issue of the literary journal <a href="https://www.otago.ac.nz/press/landfall/">Landfall</a> in March 1947:</p>
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<p>What counts are not a country’s material resources, but the use to which they are put. And that is determined by the spiritual resources of the people.</p>
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<p>“Spirit” was a constant refrain in the postwar world, part of asking what could stand against a turn to nihilism and authoritarianism. Civil liberties, it was feared, were threatened by an intellectual weakness within the wider population.</p>
<p>Today, one can hear echoes of Prior’s concerns: emergency laws limit civil liberties, “unscrupulous party spirit” needlessly deepens political divides, unpopular opinions are shouted down or cancelled.</p>
<p>Prior would say a global public health emergency should not blur the lines. A dangerous weakness of spirit or intellect may be evident among the anti-vaccination minority, conspiracy theorists and others on the fringe, but it is present in the rest of New Zealand too. </p>
<p>Threats to civil liberties are not only done <em>to</em> us, they exist in what we allow to be done to others. As ever, the threat lies as much in our own attitudes and ways of thinking as it does in the actions of governments.</p><img src="https://counter.theconversation.com/content/173405/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Grimshaw does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bad laws, political tribalism and cancel culture – philosopher Arthur Prior was describing similar things in the 1950s, and his challenge is just as relevant today.Mike Grimshaw, Associate Professor of Sociology, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.