Additional Comments
Senator David Leyonhjelm –
Liberal Democratic Party
1.1
While I am in broad agreement with the thrust of the committee's report,
I wish to add comments on matters that came before the committee that either
fell outside the inquiry's terms of reference or could not be properly
addressed in a short interim report.
1.2
My comments fall under three headings: politics, advertising, and
economics.
Politics
1.3
Several public health organisations made much of the concept of
'stewardship', and the Committee's report (on pages 5–6) provides an outline of
its meaning.
1.4
I think it is important to note that conceptually, 'stewardship' has its
origins in political philosophy, particularly the work of Professor Phillip
Pettit. Professor Pettit's work was in turn a response to the scholarship of
Professor Isaiah Berlin.
1.5
Pettit claimed to have developed a third conception of liberty, distinct
from Berlin's negative (freedom from interference) and positive (freedom to
live as one’s true self) liberties: liberty as freedom from domination.
1.6
The three concepts may seem similar, but in practice they have produced
vastly different systems of political order.
1.7
According to the 'negative' conception of liberty, people are free
simply to the extent that their choices are not interfered with. There are many
variations on this, depending on how exactly one wants to define 'interference',
but they all have in common the basic intuition that to be free is, more or
less, to be left alone to do whatever one chooses.
1.8
Berlin associates this idea of negative liberty with the classic English
political philosophers Hobbes, Bentham, and J. S. Mill, and it is today
probably the dominant conception of liberty, particularly among contemporary
Anglo-American political theorists. In Mill's well-known words, 'the only
freedom which deserves the name, is that of pursuing our own good in our own
way, so long as we do not attempt to deprive others of theirs'.
1.9
In the positive sense, a person or group is free to the extent that they
exercise self-control or self-mastery. However, it is not agreed what exactly
constitutes self‑mastery. According to one influential account, to be 'positively
free' is to be able to act on one's second-order desires.[1]
1.10
For example, the addicted smoker may be free in the negative sense not
to smoke - since no one actually forces him to - but he is not free in the
positive sense unless he can actually succeed in acting on his presumed
second-order desire not to keep smoking.
1.11
There are well known and troubling implications in the positive
conception of liberty. For the most part, these stem from the problem that
freedom in the positive sense would seem to license fairly extensive coercion
on behalf of individuals' allegedly 'real' interests—for example, coercively
forcing a smoker to quit on the presumption that this is, in fact, what he
really wants to do (even if he doesn't say so).
1.12
Freedom as 'non-domination', by contrast, is best defined as structural
independence – as the condition of not being subject to the arbitrary or
uncontrolled power of a master. Pettit—who developed this 'republican'
conception of freedom—argues that a person or group enjoys freedom to the
extent that no other person or group has 'the capacity to interfere in their
affairs on an arbitrary basis'.[2]
On a plausible rendering of the term 'domination' as arbitrary or uncontrolled
power, freedom in what Professor Pettit calls 'the republican sense' consists
in the secure enjoyment of non-domination.
1.13
These conceptions of liberty can seem similar. However, liberty as non‑domination
is not the same as liberty as non-interference. There is a real and substantial
difference between the former's view of liberty as independence from arbitrary
or uncontrolled power, and negative liberty as non-interference. On the view of
negative liberty as non-interference, any sort of public law or policy
intervention counts by definition as an interference and, ergo, a reduction in
freedom. Being committed to the 'non-interference' view of negative liberty,
liberals thus tend to be more suspicious of government intervention.
1.14
In the 'republican sense' of political liberty, or non-domination,
public laws or policy interventions need not necessarily count as reductions in
freedom. Provided the law or policy is adopted and implemented in an
appropriately non-arbitrary manner, citizens’ freedom is said to remain
untouched.
1.15
Indeed, if the law or policy ameliorates dependency, or curtails
the arbitrary powers that some exercise over others in the community, citizens'
freedoms may be enhanced. A practical example would be anti-discrimination law,
which by preventing the exercise of arbitrary employer prejudice against, say,
a particular race or gender, ameliorates dependency on the welfare state (since
people with jobs require little or no welfare).
This leads naturally to the theory of 'stewardship' as an appropriate role for
government, given that government is seen as a legitimate means by which to
curtail dominance.
1.16
However, it
is worth noting that 'stewardship' is not part of Professor Pettit's conception
of liberty, but was developed by the UK’s Nuffield Council on Bioethics (NCB),
particularly in its report Public Health: Ethical Issues (2007), cited
extensively in the PHAA submission, as outlined by the committee in its interim
report.[3]
1.17
In sum, the
role of public health in the formulation of public policy is intimately linked
to the governing conception of liberty in a given society. In my view, as a
society we have moved too far away from negative liberty, and thus seem
impaired in our ability to simply leave people alone.
Advertising
1.18
As mentioned on page 7 of the committee report, a number of submissions
addressed the idea of 'industry domination', particularly through advertising.
Other submissions questioned the evidence base for 'advertising-based
domination', or even whether it exists. This issue fell outside the scope of
the inquiry's terms of reference, but the debate is both intense and fraught
and people who have taken an interest in the matters raised by the inquiry
deserve some background.
1.19
The PHAA argued both in its submission and before the committee, based
on the 'stewardship concept', that what may be seen as coercive or intrusive
state intervention is actually the state's attempt to counter the vested
interests of industry. The PHAA submitted that personal choice is already
dominated by industry:
Where influence of individuals is so strongly dominated by
forces around them, it is much more difficult to make well-informed,
responsible choices compared to when there is a balanced view presented on a
level playing field.[4]
1.20
They argued that it is the role of the state to act in the public
interest, against domination by industry:
There is
a constant push, especially from certain sectors of industry, to be free from
government interference. This fails to recognise a government's
responsibilities to protect the health and safety of the community, and to
place the interests of public health ahead of those of vested interests.[5]
1.21
An example of domination by industry, as argued by PHAA, is the
advertising of "junk" food aimed at children:
Domination by industry in marketing of junk food to children,
for example, plays a key role in the obesity epidemic. Governments have an
option of countering the domination in the market place by junk food companies
and delivering a level playing field by investing the same amount of money into
marketing fruit, vegetables and good nutrition messages. However, rather than
spend huge amounts of taxpayers money in this manner government can achieve the
same level playing field, countering the domination, by introducing regulations
that restrict the extent of marketing of junk food to children.[6]
Embedded within this argument are a number of claims, contested
by other submitters and witnesses before the committee. First, whether advertising by industry even constitutes
'domination' as conceived in Professor Pettit's schema is an open question.
There is considerable debate among political theorists and jurisprudential
scholars on this point, and even Pettit has modified his views over time. Much
of his scholarship has focussed on the idea of 'arbitrary power' exercised by
governments, although more recently he has spoken of 'uncontrolled power'.[7] His main focus
is on the rule of law and the dangers of excessive discretion, matters of
relevance to the state, not the private sector.
1.22
Second, even if, at a theoretical level, advertising by industry can be
construed as a form of domination, there is the empirical question of whether
it does, in fact, 'dominate' adults' personal choices. Christopher Snowdon of
the UK's IEA pointed out that '[t]here is a huge amount of economic evidence
showing that advertising does not increase the size of a given market and is only
useful in increasing market share for a given company'.[8] The Institute of Public
Affairs also pointed out that the evidence base suggesting advertising
influences subsequent behaviour is weak.[9]
1.23
Similarly, attempts to correlate media consumption with later activity
in other fields—playing violent video games and subsequently committing crimes
of violence, for example—have never been borne out by research.[10]
1.24
Finally, in considering the plausibility of dominance by industry and
advertising, there was little acknowledgment of the possibility that the state
can also dominate, and not just in a dictatorship. Democracies have interned
entire populations (Japanese-Americans, German-Australians) in wartime,
exercised extensive and coercive control of entire populations during times of
peace (Australian Aborigines, LGBTI people), practised widespread censorship
and surveillance, and engaged in mandatory sterilisation on the flimsiest of
pretexts, including in the name of 'public health'.[11]
There was also no serious attempt to justify the claim that state dominance is
preferable to that of corporations or advertisers, or why individuals are
deemed incapable of resisting the influence of either.
Economics
1.25
A number of submissions argued that certain products generate flow-on
costs to the economy which are considerably in excess of the revenue obtained
through taxing those products. This position is outlined by the committee in
its interim report.
1.26
While Pigouvian tax levied on markets that generate negative
externalities is an accepted part of mainstream economics, it is well known
that measuring externalities in such circumstances is difficult. Pigou himself
noted that 'it must be confessed, however, that we seldom know enough to decide
in what fields and to what extent the State, on account of [the gaps between
private and public costs] could interfere with individual choice'.[12]
1.27
Mr Snowdon cited research by Dr Eric Crampton, Dr Matt Burgess, and Dr Matt
Taylor arguing that the economic costs detailed in much of the literature are
largely spurious, as they fail to distinguish between public (or 'social')
costs and private costs, in addition to failing to appropriately weigh benefits
as well as costs to the individual consumer.[13]
1.28
Crampton et al point out that weighing costs and benefits, as well as
distinguishing between private and public costs, are fundamental to economics.
They note:
[public health] studies typically ignore or deliberately blur
the distinction between internally and externally borne costs. These studies calculate
social-cost figures that generally include a large proportion of costs falling
on the drinker and on other parties more typically considered to be in contract
with the drinker, which economists usually identify as private and not
policy-relevant.[14]
1.29
In short, lost productivity and early mortality are not costs to the
taxpayer. These costs are private, incurred by the drinker or smoker and
sometimes his employer.
1.30
Crampton et al are particularly critical of Collins and Lapsley, the
headline public health study that seeks to quantify public or 'social costs'.[15]
They argue that Collins and Lapsley ignore the laws of economics, disregarding
benefits while purporting to engage in a cost-benefit analysis. They note:
Consumer enjoyment forms the bulk of the economic benefit
consumers receive from the consumption of alcohol; counting these benefits as
zero allows [Collins and Lapsley] to convert private but potentially
unanticipated costs of alcohol consumption into policy-relevant social costs.[16]
1.31
Crampton et al illustrate the difficulty of undertaking a cost-benefit
analysis without considering benefits by means of an analogy:
By way of analogy, consider the case of skiing. Every skier
bears risk; a very small proportion of skiers are killed. If we were to consider
the net costs of those skiers involved in a serious accident, we would be
right, to a first approximation, to ignore the benefits of skiing for those
victims of accidents, since any benefits would be trivially small relative to
the magnitude of the costs they incurred. However, it would be wrong to
conclude from this examination of victims that skiing imposed massive net
social costs. No estimate of any activity’s value, and no policy implications,
can be derived from an assessment limited to the downside risk of an activity.
The benefits of alcohol consumption enjoyed by those drinkers who ex ante
consumed as much alcohol must be weighed against the harms borne by those who
become alcoholics or suffered another adverse consequence. Only in this way is
it possible to make economically meaningful statements about net costs, whether
of alcohol consumption or of any other activity.[17]
Senator David Leyonhjelm
Liberal Democratic Party
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