Self Employed Australia

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“Everyone needs an Advocate”

Truth and Politics

What the Loophole (IR) Bill means for you – some detail

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loopholeIn our news alert to you last week we gave you a broad overview of the government’s IR ‘reform’ Bill, the (Closing Loopholes) Bill 2023. We said that we’d progressively provide you our detailed analysis and this is the first instalment.

This first analysis explains how the Bill aims to override and neuter the Australian High Court’s determination of who/what is an independent contractor. This is a pretty serious move. This is NOT the addressing of some ‘loophole’ in the existing Fair Work Act, an Act created by the Rudd/Gillard Labor governments in 2009.

I’ve posted a Substack article analysing this part of the Bill. It’s around an 8-minute read. We hope this will give you some clarity. It’s free to access.

First step understanding—summary

But just to understand how serious this is, at its core, the Bill seeks to destroy the very legal basis of commercial and contract law in Australia. It’s staggering, but this is what the Bill seeks to do.

The most significant proof supporting this statement is that the Bill itself states its intent to repudiate, neuter and overturn the declaration made by the High Court in February 2022 on what constitutes commercial and employment contracts. (I show the clause in the Substack post.) The High Court must be ignored, according to this Bill.

The Bill is based on an underlying position that no individual Australian has the capacity, maturity, intelligence or wit to earn their income through the commercial contract. In effect, its ‘says’ that Australians are incompetent halfwits who must be denied their right and capacity to be self-employed, to be their own boss.

It is a Bill that denies the spirit of aspiration, ambition and ‘get up and go’ that so defines much of what it means to be human. As self-employed people we probably don’t understand the extent to which our very existence affronts the existing establishment status quo. This Bill is an attempt to squash us. This is not an exaggeration, but a statement of fact based on the wording of the Bill.

The 284 pages of the Bill contain many sub-agendas scattered throughout, but all captured within the central theme stated above. It’s a complex read, but to analyse the Bill, we had to split it into its ‘bits’ by colour-coding it. By doing that we were able to identify its sub-agendas and discover its overarching theme.

The parliamentary process

The Bill is being investigated by a Senate Committee with hearings currently underway. The Committee website is here and submissions here. Curiously, our 13,000-word submission has not yet appeared on the website.

Parliament sits from this Monday 16 October for 2 weeks. I’ll again be in parliament, ‘walking the halls’, talking with Senators and MPs and their advisers on the Bill. We’ll keep you updated.

A bill to destroy self-employed small businesses across Australia

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small-businessWe really need to let you know what’s going on with the new industrial relations Bill, called the ‘Loophole Bill’.

Hold on to your hats. This is something much more radical and far-reaching than anyone could have expected. To call it a Bill closing ‘loopholes’ is to lie. Its contents prove the lie.

The Bill proposes a transformation of key, core underpinnings of the Australian economy and society. It is perhaps the most radical change of its type seen since Federation.

To remind you, the Bill:

  • Is 284 pages long, with a 521-page Explanatory memorandum.
  • Covers multiple agendas.

The government had wanted this passed before Christmas this year, but the Senate has delayed it until February next year. The Senate is holding an inquiry. Submissions were due last Friday, 29 September. We’ve put in a submission that we can’t make public until the Senate Committee formally accepts it.

Putting our submission together was a formidable exercise and we haven’t even covered all the issues. But our 13,000-worder gets stuck into core, major items.

In summary:

The Bill seeks to make commercial transactions subject to industrial relations regulation.
It will do this in relation to commercial transactions undertaken by individuals in the earning of their income.

In practical terms, the Bill will outlaw:

  • the bulk of self-employment;
  • digital (gig) platform operations in Australia;
  • self-employed people from earning their income through digital/gig platforms; and
  • self-employed owner-drivers;

as well as:

  • casual employment.

Further, the Bill will:

  • Damage competition law in Australia, creating opportunity for a further concentration of economic power by big business.

In short, the Bill will make a huge percentage of Australian small businesses illegal. This is why describing the Bill as ‘radical’ is warranted and accurate.

Our line-by-line analysis of key terms, sentences and structures of Bill shows how it achieves the above by:

  • Overriding the High Court’s determinations on ‘employee vs self-employment’.
  • Breaching Australia’s International Labour Organisation obligations to protect the status of self-employment.
  • Overriding Australia’s competition laws and limiting the power of Australia’s competition regulator (the ACCC).
  • Defining the commercial contract as an employment contract.
  • Regulating self-employed people as employees.
  • Regulating digital (gig) platforms to remove their commercial basis.
  • Regulating owner-drivers as employees.

We’ll release our analysis of the Bill to you in ‘bits’ over the next few weeks so you have a chance to absorb it all.

Fearing the truth – Australia’s government institutions – ATO

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Richard-BoyleIn April 2018 we were intimately involved in the production of the ABC Four Corners program ‘Mongrel Bunch of Bastards’. The program exposed evidence of the ATO’s abuse of small business people. The program brought real ‘grunt’ to our campaign to reform the ATO. And we have to say that in our observation the ATO has improved since then. There’s still much to be done, but it is better.

Included in the Four Corners program was the profiling of Richard Boyle. Richard was a case officer in the ATO who exposed ATO abuse of small business people and he explained this on the program. The consequence of this is that Richard was charged and is being prosecuted. Richard has become one of Australia’s most high-profile whistleblowers. He faces a lengthy jail sentence if convicted.

In the production of the program, and subsequently, SEA has had considerable dealings with Richard. In July 2022, SEA released a statement joining the call for the charges against Richard to be dropped. In the statement we explain our dealings with Richard as well as our view of him and his whistleblower actions. We said:

…in our view the charges against Richard must be considered within the ambit of Richard’s whistleblower activity as it exposed malpractice within the ATO.

…Richard’s whistleblowing action (and the activities related to that) were done in order to protect taxpayers from garnishee activity by the ATO which breached the ATO’s own procedural requirements.

In all our dealings with Richard we have found him to be a person of the highest ethical and moral standards.

Our statement provides the full details of the independent investigations into Richard’s whistleblowing. Those investigations detail the maladministration of the ATO at the time and, in our view, effectively support the propriety of Richard’s exposure of the truth.

This Monday (18 September 2023) the ABC 7.30 Report ran a full segment on Richard Boyle. This time they interviewed a small business taxpayer (Dirk Fielding) who Richard had helped in 2017 and who, through the ATO’s actions, has been used to generate Richard’s prosecution. Dirk refers to the prosecution as ‘insanity’.

Further, last week some 30 MPs and Senators joined the call to have the charges against Richard dropped. We again join that call and reiterate the reasons for the dropping of the charges as we explained in our statement of July 2022.

Inside the Truth Police

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truth-policeIn late July we alerted you to the planned Misinformation and Disinformation laws. The laws will require social media platforms (Facebook, etc.) to determine what is ‘true’ and to warn people for posting ‘untruths’ and then ‘cancelling’ them.

Here’s the government’s information sheet on the law.

We mentioned that we, Self-Employed Australia, have had experience with such ‘truth’ suppression. A member put up on their Facebook page a post we made commenting on the outcome of our Supreme Court action over hotel quarantine. Facebook had its ‘truth police’ sanction the member. We’ve now completed a detailed analysis of that experience.

The full detail is available on Ken’s Substack post here: ‘The Truth Police are here’.

It’s a detailed analysis of how Facebook imposes its ‘truth’ on the public and suppresses dissenting ‘truths’. We go into the detail because it gives an insight from a real experience to which anyone could be subjected.

The essence is that Facebook took an objection to the exposure of this statement by a judge in the ruling on SEA’s court action. The judge said:

“If SEA is not granted an extension of time the individuals referred to in the First Request will be freed from the not insignificant stress of potentially being subjected to prosecution for serious criminal offences… the 20 individuals identified in the First Request may suffer considerable prejudice if SEA is granted an extension of time…”[emphasis added]

That is, the opinion could be reasonably formed that the judge was commenting that if a person subject to potential prosecution was under stress, then that was a reason not to proceed.

Facebook sought to close down and suppress that comment in our view, and we explain in detail how Facebook’s outsourced ‘truth police’ approached this. Rather than determining what Facebook says is ‘fact’, our analysis is that they were in fact expressing an opinion on SEA’s opinion on the Court’s judgement. That’s okay if opinion is presented as opinion. It’s a different matter altogether, however, to present opinion as ‘fact’.

We say that it’s fine if Facebook wants to determine what is true for its platform. It owns the platform. It can do what it likes. But it is something entirely different for parliament to pass a law that all social media platforms must do as Facebook has done.

The compulsory silencing of opinion on the basis of political ‘fact’ determination by appointed ‘truth police’ heralds an era of oppression of the people. We have seen this far too often in the history of human activity. The consequences are always ugly, sometimes horrifyingly so.

The full analysis is here.

Einstein is dangerously wrong. Silence him with a new law!

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einsteinWhen Albert Einstein published his new theories around 1905 he challenged the established ‘truth’ of Newton’s laws of physics. Einstein was attacked by the scientific establishment at the time who were wedded to, and career-dependent on, Newton’s laws. Many sought to stop him. However, Einstein’s theory ultimately became the new ‘truth’.

This is how humans advance. ‘Truth’ is a view or perspective that is universally held, until such time as it is challenged, found to be faulty and replaced by a new view that becomes the new ‘truth’.

The Australian government is proposing a law that will force digital platforms (Facebook, etc.) to be the determiners of what is ‘true’. The government has put out a ‘Fact Sheet’ about this planned law and they are asking for your input.

The ‘Fact Sheet’ is here (with our markups)

We think it’s important that the government receive many responses and we encourage you to do so.

The planned law is very broad in its reach covering “Misinformation and Disinformation” that will “cause serious harm”

  • It defines misinformation as “content that is false, misleading or deceptive” but doesn’t define what those things are, leaving that open to interpretation.
  • It doesn’t define what is ‘harm’, leaving that open to interpretation.

But

  • The ‘Fact Sheet’ talks of “harm” that “…affects a significant portion of the Australian population, economy or environment, or undermines the integrity of an Australian democratic process.”

That is:

  • The law will cover almost anything that anyone says or thinks and that what is ‘true’ is to be determined by ‘truth authorities’ that supply ‘truth’ determinations to Facebook and other digital platforms.
  • The law will not be constrained to criminal or potential criminal incitement, or to issues of defamation and so on. The law will cover anything.

In ‘truth’, this law is an attempt by government (through third parties) to control what they, the prevailing establishment/s in society, decide/s is ‘true’. It will enable misinformation or disinformation that an establishment wants propagated as their ‘truth’ to be the only authorised ‘truth’.

Take this example from the opinion/‘truth’ website Wikipedia on the flat earth theory:

  • It is a historical myth that medieval Europeans generally thought the Earth was flat. This myth was created in the 17th century by Protestants to argue against Catholic.

That is, one religious group used the ‘flat earth’ allegation to take issue with a competing religious group. This is what humans have always done. ‘Truth’ and ‘facts’ are manipulated for purposes of power and oppression. The only way to limit this is to allow the broadest of human expression and challenge to existing ‘truths’.

The beauty of Wikipedia is that almost anyone can put up an opinion on their ‘truth’. Wikipedia allows competing opinions on ‘truth’ to flourish. But this law will surely suppress this feature of Wikipedia.

Self-Employed Australia has had experience with such ‘truth’ suppression. A member put up on their Facebook page a post we made commenting on the outcome of our Supreme Court action over hotel quarantine. Facebook had its ‘truth police’ sanction the member. Did Facebook’s ‘truth police’ contact us to seek our perspective? No! The ‘truth police’ instead ran with a spin the Victorian government would have wanted.

This is what this ‘truth’ law will enforce—government/establishment-sanctioned ‘truth’, with civil and criminal penalties for breaches.

In addition to responding to the ‘Fact Sheet’ above we encourage you to express your ‘truth’ to your local federal MP and State Senators.

The most effective emails are those that are respectful, to the point and personal. A follow-up phone call to the member’s office adds extra weight.

You can find your local member’s contact details through this parliamentary website. The search functions are good.