Political pundits of a realist disposition are repetitively fond – to the point of cliché – of quoting a remark questionably attributed to Otto von Bismarck, the first Imperial Chancellor of the German Empire. His 19th century observation that, “Laws are like sausages, it is better not to see them being made”, appeals to those who see political decision-making in liberal democracies as the product of behind-the-scenes deal-making publicly presented as the fruits of rational deliberation.
This rather cynical perspective is challenged by another German, eminent philosopher and social theorist Jürgen Habermas, whose 20th century championing of deliberative democracy and the public sphere at least imagines that law, policy and regulation can be more openly discussed and decided. The allied concept of evidence-based policydisplays particular faith in the virtues of systematic, legitimate knowledge and reason in adopting a position on issues of critical public importance.
In the digital world of the 21st century, law and policy making takes place in a series of interacting domains. There is the traditional backroom haggling among major political parties, conversations among elite political and economic actors, and the duchessing and ministerial door-knocking of paid lobbyists.
Outside these largely hidden spaces is the visible activity of campaigning, reporting and investigative media; think tanks of a range of political persuasions; actual and astroturfing pressure groups; place-based and para-social communities; public intellectuals of sundry stripes, and variably informed, engaged citizens holding forth on law and policy-related matters.
As this century advanced, online, social and media came to the fore. The World Wide Web, which in its early days held out much hope for the free exchange of information and the involvement of many more people in the political process, also became a playground for conspiracy theories, mis- and disinformation campaigns, and algorithmically-directed attention and identity.
In this increasingly febrile environment, the huge global disparities of wealth and power that repudiated the promises of neo-liberalism’s universal abundance turbo-charged citizen alienation and authoritarian populism. Policy making could be made simple – a big, nasty problem demanded a simple solution that could only be achieved by identifying, stigmatising and repressing some relatively powerless Other.
Because for many, Trumpian magical thinking had replaced appeals to logic and evidence, in such post-truth times inevitable failures could be suppressed, ‘true believers’ gaslit, and blame attributed even more extensively to enemies without and within.
Despite these wicked problems, liberal democracies have to find a way to frame and justify law and policy. The conventional format in Australia on major law and policy questions is to identify an issue, refer it to a parliamentary inquiry that invites public submissions, receive its report and findings, create an ensuing exposure draft bill to be introduced, debated, amended if necessary, and passed through the chambers before emerging as law.
Inevitably, of course, the process is much more complex and contingent than that, not least when the matter at hand is embedded in the very digital realm that has made considered decision-making harder in the first place. Two recent conspicuous cases related to proposed legal bans on online gambling and age restrictions in social media use are worthy of discussion here.
Online safety: Evidence- versus politics-based policy
The sense of anticipation surrounding the Australian Labor government’s promised introduction of its online gambling advertising reforms resembled the act of gambling itself. Waiting for starter’s orders or kick off, the promise was that new legislation limiting public exposure to online gambling, especially in sport, was imminent – meaning the last parliamentary session of 2024.
Many of the ingredients were there for urgent action. The much-publicised Report, You Win Some, You Lose More, was the product of a House of Representatives Standing Committee. The Social Policy and Legal Affairs Inquiry into Online Gambling and its Impacts on Those Experiencing Gambling Harm was led by the late Peta Murphy in her sadly final days.
The Committee’s recommendations were unanimous, unusual in a cross-Party exercise. The Leader of the Opposition had also been outspoken in calls for change in his 2023 Budget in Reply speech, although it focused on gambling advertisements and live broadcast sport.
There was a powerful undercurrent of popular support among the many direct and indirect victims of gambling harm, including harrowing tales of suicide. A powerful body of research supported major change, highlighting that Australians lose more money to gambling per capita than any other place on earth.
Many submissions to the Inquiry also showed how exposure to sport gambling advertising resulted in the intergenerational reproduction of gambling culture and afflicted boys and young men in particular.
The most important of the 31 Recommendations, number 26, was for there to be “a comprehensive ban on all forms of advertising for online gambling, to be introduced in four phases, over three years, commencing immediately”. Dedicated racing channels and programming were exempted and small community radio broadcasters given a period of grace.
There has been continual confusion over whether this phased ban would apply to all forms of gambling advertising rather than only to online gambling. This problem was caused partially by journalists and media commentators who should know better who had either not read or understood the Report’s recommendations on detail.
But the main reason for this apparent misinterpretation was that, in her Preface to You Win Some, You Lose More, Peta Murphy went further than its actual Recommendations in declaring that “A phased, comprehensive ban on all gambling advertising on all media – broadcast and online, that leaves no room for circumvention, is needed”. It is uncertain whether the omission of “online” was inadvertent or deliberate.
This stronger position on wagering and gambling advertising was interpreted by an already uneasy Labor leadership as opening the door to total gambling prohibition, including of poker machines, casinos and lotteries. Already accused of losing touch with its Anglo-Celtic working-class roots, it was vulnerable to tabloid rhetoric about selling out ‘ordinary people’s’ leisure pursuits to anti-gambling ‘nanny state’ wowsers.
The other side of the coin has Labor represented as timid, tepid panderers to sport, media and gambling vested interests. This cluster of influential groups won precious breathing space. Just as the long-awaited legislation was due to be unveiled, transparent Ministerial talking points explained further delay as arising from the difficulty and complexity of the work involved. A looming federal election meant the possibility, if not likelihood, that the current parliament would not have the time or opportunity to enact this unpresented Bill.
The convenience of “difficulty” and “complexity”
Any excuses about difficulty and complexity were quickly exposed by the hasty tabling of the Amendment (Social Media Minimum Age) Bill 2024. The issue at hand has much in common with online gambling advertising – such as harm to the young, harrowing stories of depression and suicide, political bipartisanship and a groundswell of popular support. But banning children under 16 from using social media had more potent friends and fewer influential enemies in Australia than obstructing their viewing of online gambling ads.
Well-aligned with the contours of contemporary populism, the simple proposition of News Corp’s Let Them Be Kids campaign struck a chord. Even more so because the enemies in this case were amorphous American and Chinese technology corporations that almost everyone from the teenage years upwards use but commonly resent in the abstract.
Crucially, in Australia local sport leagues like the AFL and NRL, free-to-air TV Channels Seven and Nine, and News Corp’s subscription service Foxtel (cross-promoted by the Daily Telegraph and Herald Sun newspapers) make big money out of gambling advertising. But the latter lose lashings of advertising revenue to multinational social media, social networking services, search engines and platforms like Snapchat, TikTok, Facebook, Google, Instagram, and X/Twitter.
It makes perfect commercial sense for these sport and media operations to lobby to support their own commercial interests and to campaign against their competitors, whatever the profound ethical issues at stake, just as they did in sometimes-competing ways over recent changes to sport anti-siphoning regulations.
There is considerable consensus that Alphabet, Meta et al wield far too much unfettered, personally intrusive power and research-supported evidence that it is imperative for governments to intervene urgently to protect the vulnerable, especially children and the young, from harmful social media content and experiences.
The idea that Australia would lead the world on age-related access to social media rather obviously contradicts the government’s problem with the difficulty and complexity of a much more modest proposal for a phased ban on online gambling advertising. The latter’s Inquiry was called in September 2022, commenced that November, and concluded after hearings in April with a Report released in June 2023.
By contrast in process terms, the far-reaching issue of age-related social media saw the Amendment (Social Media Minimum Age) Bill 2024 referred to a Senate Inquiry and opened for submissions for less than 48 hours. It was followed on the next sitting day by a half-day (or, indelicately, half-arsed) public hearing, its Report handed down the day after in preparation for re-submission of an amended Bill that was passed two days later.
There was no detailed examination of relevant research during this process. In fact, 140 Australian researchers and scholars in the field (including this author) had already criticised the proposal in an open letter, in sharp contrast with the substantial support among researchers for the online gambling advertising legislation.
The age-related social media ban is also opposed by bodies including the Australian Human Rights Commission and Amnesty International, not because they regard these concerns as baseless, but for the key reason that this legislation is likely to do more harm than good, and will fail to control ‘Big Tech’ for the benefit of all age groups, not least because under 16s rapidly come of age.
The Act bans social media platforms from allowing people under 16 to access their services. Although including fines of up to AU$50m for corporate non-compliance, it left such matters as reasonable cooperation with the law, which platforms and uses are to be included, age verification technologies etc. for later clarification and only following a mid-2025 technology trial prior to the legislation coming into effect after a year.
This is law and policy unfinished by design. What ultimately emerges will be retrofitted in unseemly haste after searching for evidentiary support and for workable technologies and protocols after the fact of the Act.
Contemporary law and policy: The raw and the cooked
The divergent fates of legislation on online gambling ads and social media age control reveals that political sausages are now made in a manner more akin to competitive reality TV cooking show like MasterChef and My Kitchen Rules. Signature laws are created in a cacophonous public arena, the spectacle heavily edited by legacy and social media, yet still with much of the preparation hidden from view.
The hackneyed law-sausage analogy has long been criticised as unfair to sausagemakers. They at least turn unpalatable ingredients into blandly edible packages that, certainly for carnivores, enables consumers to suspend any distasteful doubts. A more apposite culinary metaphor for contemporary law and policy making might be a cauldron with the heat constantly rising and unequal access to the spoon, conjuring up an unappetising broth of the raw and the cooked.
Originally published on openforum.com.au, December 2, 2024
Copyright © David Rowe 2024
Email: d.rowe@westernsydney.edu.au
Twitter: @rowe_david
Website: https://westernsydney.edu.au/ics/people/researchers/david_rowe
