On the dangerous dishonesty of Rule of Law

With an outbreak of interest in and ignorance of two legal precepts, Rule of Law and the 1500-year-old lex iniusta non est lex an unjust law is no law at all, here is a bit of background on origins, authors, influences, and adherents.

The bones of the debate are this: the highest placed union leader in Australia, Sally McManus, was asked by Leigh Sales on 730 (ABC1) if she “believes” in the Rule of Law. McManus based her reply on the natural law philosophy that laws must have a moral dimension and a relationship to justice – and ought not cause injustices.

Over the years, philosophers have disagreed on the correct response to an unjust law, and have attempted to codify types of injustice. Do we leave the state which makes unjust laws for a more just society which does not? Do we obey the unjust law for the sake of some greater social good, such as stable government? Is an unjust law nullified by its unjustness, is it neither valid nor authoritative, because it does not meet an essential criterion for being a law? Are we justified in disobeying this unjust command which is not a law? Are we morally obliged to resist the command that is not a law?

Surely participating in and contributing to injustice is an objective moral wrong?

It will surprise nobody that these nuances were lost in the ensuing debate, which has (rightly) been overshadowed by the strategically brilliant and intelligently articulated reply from South Australian Premier Jay Weatherill to yet another poorly-conceived federal government thought bubble on energy supply.

But as I was writing a jurisprudence lecture on Aquinas and friends today anyway, I decided to post an explainer on the debate, and the origins of its false assumptions.

The incoherence of conservatism, then and now

Despite their fondness for identifying longevity with authority – the longer a principle has been around, and survived, and invoked through the ages, the greater legitimacy it carries – conservative thinkers reacted to McManus with predictable clickery and conformity.

Like most conservative incoherence, these people reject identity politics, yet judge a clear statement of principle not on what is said but who is saying it. So when McManus says that unjust laws can and should and will be challenged, your local conservative reporter frames her sentiment as imminent anarchy. This is despite the fact that McManus is drawing on an ancient (in European years) tradition found in the works of Augustine, Aquinas and Locke, works which provided the rationale for the American War of Independence, ideas which inspired Martin Luther King.

In contrast, when laws which do not suit the conservative agenda are challenged – such as the mining industry campaign against a perfectly sensible and just attempt to establish some kind of sovereign wealth mechanism – the ‘news’ is merely ‘reported’. As though vested advertising from the mining industry is impartial and reasonable, rather than an affront to principles of equality, democracy, and justice.

Following the 730 interview, prominent voices and high traffic sites – Buzzfeed, Fairfax, the ABC – immediately started peddling the angle that challenging unjust laws is some kind of unprecedented call to arms. In fact, it was the top union leader in the country sensibly discussing workplace safety and the human cost of employer negligence that sees human beings killed on construction sites. (And shout out to Crikey, who lined up left of Buzzfeed, and to Guardian journalist Paul Karp, who took on two Fairfax heavyweights.)

Workplace safety and union solidarity sit squarely within the remit of Sally McManus’ job description. A philosophy that rejects unjust laws also lies squarely within her expertise. Yet she does not enjoy the faux-neutral reportage – acceptance – that is enjoyed by the mining industry, for example, or the passing of profoundly anti-democratic laws by conservative governments. These laws are specifically designed to safeguard mining industry interests; and massively increase fines and maximum custodial sentences for protestors. Additional laws dramatically reduced the maximum penalties for toxic spills and other forms of destruction of country caused by big mining.

Conservative commentators could draw the most rudimentary and relevant comparisons between huge fines for striking unions and insultingly small penalties for employers who create conditions which kill workers. The edgy performative crew of political writers and editors could read a book, or google, before tweeting out ahistoric ignorance (and clumsily walking it back, complete with auto-correct error). But they do not.

Their hegemonic response relies on Hobbesian authoritarianism, which is coded into all Australian Constitutions. This tradition says the lead task of the political leadership is ‘peace, order and good government’. While the US chose Lockean revolutionism to throw off English colonial rule, Australia chose Hobbesean order. We are not the loveable anti-authoritarian larrikins we like to think. We still have a foreign national as our head of state.

Both Hobbes (1588-1679) and Locke (1632-1704) were deeply influenced by the English civil war from which the version of liberal democracy that is practiced here sprang. This model relies on the doctrine of separation of powers for power-sharing arrangements across the executive, the parliament, and the judiciary. Those fighting for a sovereign parliament – where sovereignty is the legitimate authority to make laws governing over a population in a defined territory – prevailed over the absolute monarchy that preceded it.

Theology and theory for population control by church and state

Social contract theory thus has its origins in a period of turmoil and bloodshed, of the English people rising up against tyranny. It was also an age of secularisation and the declining influence of the church as the lead source of moral authority. The theory proposes that citizens are born into a social contract with the state. The social contract replaced original sin as the prevailing belief system imposed on new born babies by members of the ruling classes, the academy, and the judiciary – none of whom ever gave birth to a baby.

If Rule of Law is closely associated with the social contract, original sin was a favourite fetish of Augustine of Hippo (354-430). The earliest coinage of lex iniusta non est lex is attributed to this famously sexually confused man of god, a man who rejected the pleas of Pelagians seeking refuge from the fall of Rome. The ‘reason’ was that Pelagius rejected the Augustinian cult of baptism.

It is beyond me (as it was Pelagius) how anyone could hold a new-born baby and think ah yes, so sinful, best get a self-hating turned-celibate man to half-drown the wee one before she can grow into a professed christian who refuses asylum to refugees fleeing imperial violence. Augustine thought it necessary to cleanse new-borns of the taint of the fall in the Garden of Eden. This kooky nonsense prevailed over the sensible and obvious truths of the innocence and blessings, the beauty and joy, of a living, breathing baby.

Aquinas (1225-1274) came along around 800 years later. He, too, made his name by theorising the norms imposed by a patriarchal and cruel church on the most precious and demanding (and life-threatening) imperative of humankind: birthing new humans. In a common technique, Aquinas looked to the works of Augustine, and re-interpreted that with which he did not agree.

He also christianised the philosophy of Aristotle, and retrospectively justified the rampant slaughter of Muslims that was the Crusades. For this immensely immoral rationalisation of the seemingly endless violence of the christian west, Aquinas was canonised by Pope John XXII in 1323. His jurisprudence continues to be taught today as a reformist and enlightened force for good (an altogether different take is taught in my classes). His Summa Theologica is quite literally part of the western canon.

Because the men who theorised our relationships with church and state were confused and deluded, the contemporary discourses which draw on their legacy also tend toward a confused babble of mostly conservative white blokes bickering over how best to govern (regulate/control) various sectors of the population.

There is nothing new under the sun, as my grandmother was fond of quoting from Ecclesiastes, a book which, fittingly, also gave us vanity of vanities, all is vanity! For the enthusiasm of some journalists to happily make themselves the story is not only an exercise in vanity, it is in breach of first principles of their own profession.

Rule of Law, in the news and in real life

Speaking of first principles, the Rule of Law is one. Do you believe in the Rule of Law? is a question by and for simpletons, which does not (or should not) fit any description of a host or guest on the national broadcaster. It is tacky gotcha journalism, it is joining the outrage machine, it is creating and participating in manufactured controversy. This is dismaying at best coming from 730 and the ABC. It shows bad faith, and displays zero intention for a nuanced and meaningful dialogue which will educate rather than divide an already divided populace.

The interview was immediately and, I suspect, unspontaneously disseminated across social media by journalist colleagues with significant followings. The posts gave every impression of their authors being on notice to make the 730 program the story. The technique is getting old: tried and tested at QandA, and to a lesser extent on The Drum, it seems 730 and Insiders have boarded the clickbait bus – which (I hope) is in decline.

Meanwhile, the robust defence of Rule of Law from conservative quarters came with deep ignorance of its content, origins, meaning, and status. If there is an upside to this embarrassing clamour, it is that people with a clue will be invited to speak clearly on the biggest lie of common law legal systems. The claim that all are equal before the law; and no-one is above the law is not true, and was never true. Maybe we will get to learn about this in the wake of McManus’ comments.

The noble idea of equality before the law – symbolised by a blindfolded Lady Justice – is what lawyers call the content of the Rule of Law. It travels alongside its blue blood cousin, which describes democracy as a government of laws and not of men. Both principles perpetuate mythologies of objectivity, neutrality, and impartiality to which conservatives earnestly subscribe. White law tends to look impartial to white people. But neither principle bears up under the most cursory, let alone critical, scrutiny.

Our jail populations reveal the truth of a violent and racist patriarchal state: a government of propertied white men, for propertied men, by propertied white men. Our jails are full of Aboriginal people, of poor people, of illiterate people and people with intellectual disabilities and mental illness, people who are survivors of child sexual assault.

You will not find Rule of Law in the Commonwealth of Australia Constitution Act 1900 (Imp), the authorising legal instrument for the creation of the federated nation. That is because Rule of Law is not a law. It is a foundational principle of the common law, and the common law is a product of the class-riddled imperial mind set of upper-class Englishmen.

These same people traversed the globe, slaughtering whole populations, claiming ownership of vast tracts of land, plundering the resources of territories which were sustainably managed for millennia. Backed by military force, they attacked the institutions and traditions of First Peoples, of Indigenous governance and learning, spirituality, and law-making – and then told them everyone is equal before the law.

All this was also backed by the soft power of theory and principle, of tropes and lies like Rule of Law, produced by the complacent and comfortable men of god and state and the academy.

Their descendants, and direct beneficiaries, are a dominant minority to this day. A demographic elite who overwhelmingly constitute the executive (highest decision-making power and authority) of every institution in our society: private and public, government and political parties, corporations and industry, universities and religions and the fourth estate. This lot are still out in force promulgating the lies and violence of yesteryear. Like their forefathers, they deploy positional privilege to belittle and oppress those who speak truth to, and challenge, and make visible, inherited and unmerited power.

This is not some social media storm in a teacup. Aboriginal people killed in custody and workers killed on construction sites are real people, in life and in death. And if there is one thing every culture treats seriously, it is the taking of the life of a fellow human being. But in our culture, not all humans are seen as fully human by the dominant group. It is members of this group who ensure that when it comes to the errors and horrors of their own, there is still nothing new under the sun.

Tax sugar, they say, but no price on carbon emissions

The story this week is climate change. Not that we can forget the catholic church is responsible for crimes against humanity; or our collective responsibility for destroying lives on Manus Island and Nauru; or the dangers of our government and its new best friends One Nation building up racism and other forms of bigotry, off a very high base.

Conservative (adj): averse to change or innovation

But the real story this week, and every week of every summer from now on, is climate change. Our political leadership is not up to the job. Conservative governments are not, by definition, equipped to deal with new challenges, being composed of people who chose to join a conservative political party. They do not like to concede this obvious point, because they are also people who seek the power to control others (to govern); and who yearn to appear masterly and successful.

Hedged in by these inherent incompetencies and ambitions of their own making, the options for dealing with the ‘new’ challenge of irrefutably irreversible man-made climate change are limited. Turnbull or Joyce, Pyne or Frydenberg, Ciobo or Morrison, they are all the same. They represent, and only represent, a monoculture of material comfort, of limited life experiences, and the narrowest of narrow perspectives.

Their choices are to lie and dissemble, to distract and deceive, to derail and delay and deny. Oh, and to bully. In a homophobic way. Simpering sycophant. Sucking up to Dick. Tucking his knees under the rich man’s table. Sucking hard in the living rooms of Melbourne.

‘Sucking hard’ on what?

These are the tools in which the current front bench is trained. Like the blinkered horse, they stare straight ahead, at the Labor Opposition, and to their own re-election chances. This is all they see. The horse is blinkered to minimise distraction, but we can not blinker our politicians in real life. So in addition to their narrow, limited outlook, we get distraction after distraction.

We get a piece of lacquered coal passed around the government benches in the Parliament. We get the Prime Minister shouting sympathy for those who can not turn on the aircon due to a blackout. It does not occur to him some of us do not have aircon at all, blackout or no. Does not cross his mind. Limited. Blinkered.

Turnbull says the problem is renewables, and Labor. To the latter end, we see Peta Credlin – former Chief of Staff to former Prime Minister Abbott and former COS to former Opposition Leader Malcolm Turnbull – telling Sky News that the 2013 Coalition campaign against a price on carbon was never anything but a giant scare campaign built on a mountain of lies and yes of course they would and will do it again anytime anywhere. This is moral bankruptcy of the first order. The implications for Abbot’s Stop the Boats campaign are unspeakable.

Such is the integrity of the conservative parties in Australia. And because conservatives weaponise everything, this garbage rhetoric is all wrapped up in the language of security. Border security. Energy security. But there is no security for anyone – not for you, not for me, not for our grandchildren, not for the planet – while the only solution on offer is to use public resources to subsidise more coal – while the earth burns.

Turnbull makes Nero look statesmanlike.

Politics and Policy 1: Politics

Speaking of conservatism and distraction and lies, it is barely more than a week since the ABC ran saturation coverage of What Cory Did Next. There is no excuse for multiple replays of Bernardi’s querulous slow-mo mumble, whining that climate debate took a terrible toll, poor fellow, not just on him but on his family. Ah, yes, how Bernardi and family must have suffered as papa B went about the toll-taking toil of scuppering any and all efforts to implement global warming mitigation policy.

Fellow homophobe and religious extremist George Christensen is also attracting all sorts of attention. His opposition to a proposed sugar tax would be straightforward retail politics – lots of sugar cane plantations in the Christensen electorate – except that Christenesen sits in the Lower House. The Turnbull government lost 14 seats last July, leaving it a single seat majority. (This, incidentally, is why the party room will not scupper Turnbull – in case he throws a sulk and leaves).

In the USA, institutional checks and balances are proving woefully inadequate at putting any meaningful restraint on the excessive bigotry, dishonesty and bullying, the moral bankruptcy and dangerous incompetency that are the decades-long hallmarks of the man who is now President.

There are similarities here – the greed of crony capitalism, the erosion of assumed base line principles – which will excite some sections of the commentariat. But this doesn’t mean much. These are people who get excited by the national leader engaging in homophobic bullying on the floor of the Australian Parliament.

Neither a rat in the Liberal ranks of the Senate nor a shift from a one-seat majority to minority government will make much difference here. The conservatives will keep blocking anything remotely resembling sensible climate policy. Legislation will keep failing in the Senate until Turnbull throws enough public moneys at the cross-bench – in that irresponsible, chaotic, megalomaniac way of his – to get what he wants.

In other words, it is business as usual. Turnbull never articulated a policy agenda anyway: he rationalised toppling Abbott by citing opinion polls. He never had command of his party room – few of them even like him. He has no record of sound leadership or judgement (see Australian Republican Movement, emissions trading circa 2009, non-existent marriage equality) or successful negotiation. The ABCC bill he used to trigger a double dissolution was negotiated out of all recognition AFTER Turnbull squandered tens of millions of public dollars recalling the parliament and running an eight-week election campaign. He could have just as easily done that BEFORE wasting so much public money (and quite a bit of his own).

If George moves to the cross benches, yes the government will be nominally a minority government. Perhaps George will not guarantee Supply, but that seems unlikely. The government is still trying to pass measures from the 2014 Hockey budget, and government has not shut down. If George goes, the constitutional lawyers will be rolled out for comment, interviewers will nod earnestly, but so what? The nation got a crash course in the mechanics of minority government – from a master of the art, the most effective Prime Minister in the history of federation – four years ago.

And Turnbull will keep bullying Labor to back his agenda, which is largely payback for Rudd convincing Turnbull to back his ETS (and subsequently losing the opposition leadership to Abbott). In Turnbull world, his 2009 compromise was not his error to own, but something to be blamed on others, specifically Labor. Whatever. It will not work. Like Rudd was, Turnbull is a factional outsider, which Shorten is not.

So the Senate cross-bench rabble is slightly more rabblish with Bernardi, but ultimately he remains a crashing irrelevancy. In contrast, climate policy and the failure of the political press to ignore the distractions and to instead analyse the pressing issues of our time, are relevant to everyone, including those yet to be born.

Politics and Policy 2: Policy

While it is not all about the politics, or should not be, Coalition climate policy is about nothing but politics and an ideology founded on the false claim that self-interest is rational. Understanding policy direction requires an understanding of ideology, because policy is the codification of ideology.

This is in fact how democratic government works. A party founded on a set of ideas (an ideology) runs an election campaign based on its policy platform. If it wins, those policies are drafted into bills and passed into law (my more detailed explainer here).

To think the law is impartial, or that laws are free of partisanship or ideology, is to ignore this most basic of civics lessons. If the citizenry are without critical skills and civics knowledge, that is the responsibility of education governance. But there is no excuse for self-identified expert commentators to overlook these fundamentals of liberal democracy.

The Coalition policy, Direct Action, is a dog’s breakfast of a thing. It transfers public resources – tax collected from the public and redirected via fiscal policy – to high pollution-causing profit-seeking private sector enterprises. How could such a policy be perceived as rational by anyone?

The answer is ideology: because ‘rational self-interest’ is the central tenet of free market liberalism. For everyone who profits from the mining industry, and for everyone who benefits from mining industry donations, giving public resources to the mining industry is in their self-interest. Ergo it is rational.

This sounds daft, because it is daft. Nevertheless, it is a dominant organising principle of free market capitalism, and operates in tandem with the hyper-individualist ideology of liberalism. This is political economy as it was once understood, before conservative promotion of wilful ignorance disaggregated the two.

Even now, commentators speculate in faux wonderment as to how Hansonism is on the rise again. Is anyone analysing why Hansonism does not rise when Labor is in power? No. Self-interest directs the conservative mindset to treat her unoriginal brand of bigoted opportunism as random happenstance, even as the Coalition parties enthusiastically fan the flames of – and normalise – religious and racial bigotry at every turn.

This is partly a function of the make-up of the Coalition parties. The constituent parts include old-school authoritarian conservatives, nominal liberals who can not apply the most basic tenets of their ideology to policy or governance, and former agrarian socialists turned client spruikers for the mining industry. Each member of each group operates in a moral vacuum filled by greed, aggression, and bigotry.

All this is underpinned by selfishness (‘self-interest’) being encoded into their ideological values as ‘rational’. Similarly, to not pursue one’s own individual self-interest is judged to be irrational. The link was conceived three hundred years ago by propertied white men who excluded everyone else from the franchise. The same group then universalised their values through dominance of public discourse; and continue to do so today, through the mechanisms of dominating legacy.

Human beings are a social species, but patriarchal societies reward aggressive individualism. This is called ‘competition’. In a sensible world, competition is for games, for tennis or chess, for entertainment and recreation. It is not the key to human survival. The keys to human survival are co-operation, reciprocity, mutuality, and love.

We may be all born equal in dignity and rights, but who gets to exercise those rights, or who gets to live a life free of governments deliberately violating those rights, is very selective indeed. And the selection criteria are bigoted nonsense: race and ethnicity, gender and sexuality, religion and dis/ability, wealth and class and the access to education and health services that capitalism ensures is correlated with income.

In sum, rational self-interest is a terrible organising principle. It informs the decisions and actions that have brought about irreversible man-made climate change. And it can be found everywhere across the liberal democracies, in every institution: government, media, universities, corporations, religion, everywhere. These institutions are rigidly hierarchical. The executive is invariably monocultural and rationalises self-serving decisions which cause purposeful, demonstrable harm to those outside their elite and exclusive group. This toxic norm infects all decisions and actions, from the top down.

High-taxing, high-spending, big government

One of the most profound analyses Paul Keating offers of the Coalition is that its claim to a commitment to markets is in fact a commitment to business. This illuminates the Coalition rejection of a market mechanism-based price on carbon (which successfully reduced carbon emissions), for a policy which transfers public resources to high polluting industries (which does not).

Similarly, conservative political leaders routinely express a commitment to small government. If the rejection of a market price on carbon in favour of subsidising polluters is high- spending big government, the proposed sugar tax is high-taxing big government. It is a distraction, of course, but a harmful one, because the arguments ‘for’ attack the poor.

A distraction with collateral damage to low-income Australians is par for the neoliberal course.

The sugar tax was borrowed from David Cameron, the failed British Tory Prime Minister who stood down after losing an expensive xenophobic campaign which was designed to settle conservative scores but which instead now poses an existential threat to the United Kingdom. The sugar tax proposal has the same flaws as the Coalition climate policy; because it comes from the same ideological place.

Paternalistic do-gooders are trotting out the usual lies of liberalism in support of a sugar tax: that a market mechanism (making sugar more expensive to dampen demand) is the correct policy approach to rising rates of obesity and diabetes.

The fastest rising diagnoses in the western world are anxiety, depression, diabetes and obesity. What does this say about the toxicity of our societies? Or about the cognitive dissonance of being fed, year after dreary year, the message that we are free, and autonomous, and have liberties and rights, when government interference in what you put in your shopping trolley is based on your income.

A sugar tax, goes the paternalism, will be good for the poor. It is only fair. The poor are irresponsible with the below-poverty-line income we so generously provide. In fact, poor people are the least profligate with public moneys – they have to be, or they die. In contrast, politicians throw the stuff around with merry abandon, a hundred million on entitlements here, $2.2 unauthorised billion there, squillions to private sector contractors over decades to the failed Job Network, ABS outsourcing, off-shore camps run by the incestuous web of Wilson Security, G4S, Serco, Transfield.

What is the return on our investment in shipping Joyce and Bishop around, in paying those profiteers in human misery to employ rapists on Nauru, in spending tens of millions on automated extortion of welfare recipients? How is the national interest served?

The answer is that the national interest is not served. This is not investment. It is toxic dilettance. The claims of liberalism, so tediously reproduced – selfishness is rational, reward is commensurate with merit, public accountability is the norm, lack of accountability is an exception –  are demonstrably false. Yet instead of a ‘small government’ that listens to the people in a nominal democracy, we get ever-increasing government surveillance and erosion of democratic rights: an inept and expensive data retention regime, criminalisation of democratic participation by protest, higher taxes, higher spending (evidenced by a deficit doubled since 2013), big brother big government.

And still, and still. What about the climate?

Jingoistic white nationalism stops with me

With 26 January looming, it is that time of year in Australia when the gatekeepers of the national narrative go into overdrive.

Where I live, in western Sydney, it is easy enough to look around the train carriage or campus or shopping centre and celebrate diversity. It is equally easy to forget, unless venturing into the large and poorly-conceived social housing estates, that western Sydney has the largest Aboriginal population in the country.

And on 26 January, it is impossible to ignore the social fact that white Australia relentlessly, aggressively promotes the dominant agenda: whites are nation-builders, we ‘let’ the migrants in, we obscure the violence of our own ‘entry’, we are the arbiters of what is, and of what is not, Australian.

An early salvo from DIBP

One example of the dominant narrative is how junior minister for Immigration and Border Protection Alex Hawke stopped Freemantle Council holding a citizenship ceremony on Saturday 28 January. His is the department which the Australian National Audit Office reported has spent $2.2 billion on off-shore detention without authorisation.

This shambolic, cruel, militarised, and eye-wateringly profligate branch of executive government is designed to manufacture and disseminate xenophobic hate. And its 2IC (from the wealthy white northern suburbs of Sydney) confidently told a local government in Western Australia that its citizenship ceremony ‘has got to be apolitical, non-commercial, bipartisan and secular’.

Given the rabid politics in which white Australia engages around 26 January, these criteria would be met by changing the date of the first Freemantle citizenship ceremony for 2017.

At no point did Hawke articulate what exactly is ‘political’ (or commercial, or partisan, or religious) about 28 January. Unlike 26 January, which is obnoxiously white and hideously commercial, 28 January is just another day on the calendar. There was no mention that 28 January is the saints day of Thomas Aquinas, although Hawke is a former Opus Dei adherent and, given his position, likely to be as unapologetic an Islamophobe as his boss. Such mention would have been quite fitting: Aquinas christianised the philosophy of Aristotle while developing retrospective justifications for the christian west to invade Islamic countries and slaughter Muslim people. His just war theory (!) is embedded in the contemporary law of war (which, typically, is called humanitarian law) and invoked to this day.

But Hawke did not have to win his manufactured controversy on the merits or in the marketplace of ideas

He just threatened Freemantle Council with the power of the Commonwealth to revoke authority to hold citizenship ceremonies. Hawke backed this threat with an insupportable interpretation of the Australian Citizenship Ceremonies Code. The code does not stipulate that citizenship ceremonies be held on 26 January. In fact, such a directive would breach the code:

In keeping with government policy that ceremonies be held at regular intervals, local government councils should hold ceremonies at least every two to three months, regardless of the number of candidates available to attend and more frequently if necessary (ACCC 2011: 6).

It is par for the neoliberal course to label a decision to make a public ceremony more inclusive as divisive. Freemantle Council put up a decent fight, but was ultimately forced to move its scheduled 28 January citizenship ceremony.

A junior minister threatening to unilaterally operationalise federal power to bully a local government was widely reported, but without analysis of why Hawke got so worked up about a local council events calendar.

Why intervene? The strength and longevity of Aboriginal Australia

There is more to the wrongs of 26 January than whining hypocrisy and dishonesty from the likes of Alex Hawke. He is a mere microcosm of how incumbent conservative power is abused to retain dominance. Hawke was successful on his own terms: he got his mug in the press, playing to a racist constituency. Other councils will now resist change which could mitigate some of the harm caused by ‘celebrating’ 26 January.

And the nation is the poorer for it. Every time new Australians are sworn in on 26 January, they are co-opted into the colonial project. To become an Australian on 26 January is to become part of ongoing dispossession, of the goals and narratives of the colonial settler state, and to participate in the endless whitewashing of a violent history.

Surely new Australians do not want to erase the 50,000+ years of over 300 sovereign nations, their populations, their societies, their law and languages and traditions, which are the oldest continuing cultures in the world? Traditions that, as journalist Amy McQuire writes, include a slew of firsts from astronomy to bread baking to burial rituals to art to the most sophisticated and sustainable agricultural practices ever devised.

If we are seeking to redress dispossession, as we say in another dishonest narrative, we would not frame 26 January as a day of national pride. But in its current form, the Recognise campaign is as likely as every other white Australian agenda to further erase Aboriginal people and their sovereign rights.

At best, Aboriginal people are expected to show gratitude for crumbs from the white table, when an entire continent and her islands were taken by force. At worst, constitutional change will be interpreted by future governments and the courts as Aboriginal people collectively ceding sovereignty to the colonial settler state; something no Aboriginal nation has ever done nor stated any intention to do.

People like Hawke are deeply threatened by the fact that Aboriginal people have survived and maintained so much of their culture and traditions. During his crusade against Freemantle Council, Hawke did not once mention the meaning of 26 January to Aboriginal people. Instead, he relied on the inherent racism of the non-Aboriginal population to fill in the gaps around his false claim that  28 January is somehow a political/divisive date for a citizenship ceremony.

Inclusion and collusion

Speaking of crumbs from the table, this phrase was used more than once to describe a commitment by a crowd funding campaign which raised over $120,000 to donate leftover money to Indigenous organisations.

The money was raised to reinstate billboards and publish print ads depicting two girls wearing hijabs and waving Australian flags. The original digital billboard, funded by the Victorian government and developed by QMS media, showed a rotating series of images. It was taken down following threats of violence by tiny but well-known (because well-covered by legacy media) white supremacist groups.

A #PutThemBackUp campaign quickly gained traction. New billboards have since appeared with the same image of the girls, and the words ‘Happy Australia Day’.

That many Australians put their money where their mouth is for the purpose of addressing racist violence against Muslims is not an incontestable social good, although it did prompt some nuanced conversations about the implications of the billboards, the day itself, and another campaign: #ChangeTheDate. Conversations, I should add, that have been had many times over many years.

This generous post by Nakkiah Lui was widely shared and applauded. I say ‘generous’ because while racist threats by white supremacists are easy to spot, many Aboriginal people are still taking the time and effort to explain the ways in which self-identified political ‘progressives’ erase Aboriginal people, history and culture.

My own reaction was to cringe at the fact that the campaigners failed to consider Aboriginal perspectives until prompted.

Does it matter that the campaign was instigated by a director of Creative Edge, the advertising company that is reinstating the billboards? Or that the alliance offered ‘leftover money’ to the Asylum Seeker Resource Centre before CEO Kon Karapanagiotidis turned their minds to Aboriginal perspectives – well after the initial target was reached?

Does it matter that many Aboriginal people were once again compelled to expend valuable time and emotional resources on educating white and multicultural Australia on what is wrong with celebrating 26 January? Or that a commitment to ‘deliberately not mention 26 January’ morphed into billboards saying Happy Australia Day?

HAPPY AUSTRALIA DAY? Would you say happy Israel independence day to Palestinian locals on the anniversary of the catastrophe? Would you, in the month of May, donate to fund billboards of Aboriginal children wearing ochre to ‘celebrate’ Al-Nakba? In Bethlehem? Naqab? In Ramallah?

Moral relativism and the national character

Commentary on such issues tends to draw on specific philosophical traditions, whether proponents are aware or not. For instance, concepts from classical economic theory, such as cost-benefit analysis and utility, are often applied to moral questions. This is a legacy of the enlightenment: Jeremy Bentham applying (half) of Adam Smith’s ‘free market’ theory to the (im)morality of the carceral state; Herbert Spencer butchering Darwinian evolution to justify the racist violence of imperialism.

Where an event or series of events produces feel-good benefits to one section of the population and tangible harm to another, it is justified by utilitarianism, the short hand for which is ‘the greatest good for the greatest number’. The problem is that we can reliably predict to whom the harm will be done and to whom the benefits will flow.

In Australia, with just about any political or social movement, the harm will disproportionately impact on the Aboriginal population.

So the claim is that the campaign did more good than harm, or produced a net social good. This is to succumb to JS Mill’s tyranny of the majority, which in turn relies on hyper-individualism for coherence. The thing to remember here is that for Bentham (and Kant and Rousseau and the rest) only property-owning white men were fully human.

This is the real root of identity politics. The corrupted version is used by opponents who have a vested interest in continuing to obscure the role of demographic privilege in life outcomes. We know who will benefit and who will not from any top-down policy or action. The evidence speaks for itself.

For example, the rate at which the state imprisons Aboriginal people has increased since desegregation freed people from mission managers and dog tags and town-limits curfews; since the Royal Commission into Aboriginal Deaths in Custody. The rate at which Aboriginal children are forcibly removed from their families has increased since the Bringing Them Home report, increased since the Apology to the Stolen Generations.

And these are policies which were said to be redressing past crimes against Aboriginal people. More commonly, Aboriginal peoples, and their sovereign rights as First Nation peoples, are not taken into account at all.

Inevitably, the response to critics is: what have you done? Is doing nothing better? At least we are doing something.

Implicit in this response is the utilitarian calculus: this action is better than the actions of white supremacists (and armchair activists). But also embedded is the value of change for its own sake. Like other nonsensical values such as extending government control over the citizenry for its own sake (data retention is an expensive hotch potch of IT amateurism; cashless welfare, at huge public cost, has no discernible benefits to people on welfare) this unquestioned assumption is dangerous.

Its economic manifestation is growth for the sake of growth, a capitalist value which has brought us to the brink of extinction. Its social manifestation is progress for the sake of progress, where a dominant minority defines progress: bigger houses? Smaller telephones? Greater connectivity? Labour market ‘flexibility’, rising inequality and income insecurity? Incessant, endless, unwinnable wars?

The not-dominant narratives

There are various reactions to the billboard campaign. Members of the many Aboriginal and Muslim communities have spoken out against a campaign which celebrates a day marking the start of colonisation, and their voices should be amplified: the links above to Amy McQuire and Megan Davis and Nakkiah Lui, the IndigenousX platform created by Luke Pearson for unmediated Indigenous perspectives; Aamer Rahman saying the billboard campaign is an ‘expensive way to throw Aboriginal people under the bus’.

It is also important to note commentary which emphasises the well-meaning motivations of the well-intentioned. This trope is a sop to whiteness. It is routinely trotted out to obscure the genocidal policies which caused monumental harm to the Stolen Generations and their descendants. When supposedly good intentions are so profoundly damaging, the crime should be treated as one of strict liability: absolute legal responsibility for which mens rea (the intention) does not have to be proven in order to convict the guilty.

From my point of view – and I speak only for myself, a white Australian and feminist (and graduate economist) – the billboard campaign is a misallocation of resources. It is exhausting for Aboriginal people to keep explaining how Happy and Australia Day do not go together. It re-traumatises, it marginalises, it causes fatigue, it takes up valuable time and effort, it drains energy from the struggle to see Australia recognise and redress its ongoing colonial crimes.

Where could these resources have gone instead? To Aboriginal women’s refuges, to Aboriginal legal and health services, to Indigenous literacy, to a trust fund pending consultation.

But there is also a missed marketing opportunity. The billboard could have featured the words Change the Date. And the billboards could have had a message which foregrounds the fact that white and multicultural Australia share something profound: we are all on stolen Aboriginal land.

The Centrelink system is working to plan

It is in you, he said, gesturing to his heart. It never goes away.

Last Thursday a mate and I had a few quiet drinks and a post-festive season debrief on my back veranda. He grew up in poverty, in cars and refuges and low-income neighbourhoods, his education disrupted, his parents often absent – to shift work, to incapacity. He holds a university degree, a steady job, and a mortgage with his partner.

Inevitably we got talking about the federal government policy of sending 20,000 letters per week to past or current welfare recipients demanding repayment of past or current or – with an error rate of at least 20% – non-existent debts.

It is difficult to remember when I started earning enough to stop reporting my income to Centrelink, as a sole parent raising three children in western Sydney while working part time and studying law. But I will never forget the process. The dehumanisation, the penalties incurred on utilities bills due to Centrelink errors, the time, the ‘voice recognition’ which could never identify my employer correctly, the stress, the humiliation, the look on my children’s faces as I yelled at the phone, their avoidance behaviours around excursions and other expenses, the cost, the cost, the financial and emotional and personal and family cost.

Being poor is hugely and unnecessarily expensive, and it does not have to be like this.

Our government has gone out of its way to make what is already a horrible and inefficient and expensive process much worse than when I reported fortnightly, first on paper and in person and later by telephone to a machine. It is horrendous for income support recipients, for Centrelink staff, and for the budget bottom line.

According to Appendix E – Data matching of the 2015-16 Annual Report, the Department of Human Services spent $19.5 million in 2013-14, $25.5 million in 2014-15 and $8.3 million last financial year on its data matching program. That is, our government has allocated over $50 million in the last three years to produce the outcomes reported in the first week of 2017: outcomes so appalling that a government agency is making blanket referrals to the suicide prevention service Lifeline for hardships caused by its own actions.

Let that sink in: Centrelink is using social media platform Twitter to refer income support recipients to Lifeline, because some ‘customers’ are suicidal after receiving letters sent by the agency demanding repayment of debts that people have not, in fact, incurred. This is the return on a $50 million investment of public moneys.

Many were letters stamped with the Australian Federal Police logo demanding information under the code name Operation Integrity.

It will surprise no one who has observed the Turnbull government that the operation has no integrity. The link above does not provide a breakdown of Operation Integrity costs. But it offers this:

“From 1 July 2016, $45.1 million will be invested in the myGov digital service over 4 years, to ensure people can continue to interact with the Australian Government online, ensuring access by all tiers of government. … the next phase of improvements to myGov. $5.4 million will be invested over 2 years to modernise this service and ensure it continues to deliver on the government’s commitment to make services simpler, clearer and faster.”

From what I can tell, and I may not be reading it correctly (the reporting methods are oblique at best), this amounts to an additional $50 million for a total of $100 million for the years 2013-20. Again, to use the government-preferred econospeak, this ‘investment’ has a return. In the first week of 2017, the dividend included driving some low-income Australians to suicidal despair. And causing incalculable hardship to other welfare recipients across the country.

To put that figure in perspective, the politician expenditure for the first half of 2015 – this is above and beyond their $200-500K+ salaries, and does not include the cost of their staffers – was $48 million. That is for six months, so a reasonable guesstimate is that yearly expenditure would be around $100 million. More recent figures do not include total costs.

Welfare recipients have 21 days to respond to a threatening letter, but political expenditure disclosure is delayed by at least six months, as are political donations reporting requirements. For example, next month we apparently find out whether Turnbull threw in around $2 million to his own re-election campaign, the one where he lost 14 seats and claimed a mandate, including for these kinds of nasty policies.

Remember, Scott Morrison told us in the dying days of that dreary campaign that a re-elected Coalition government would continue to hate n the poor while cutting company tax rates (although a tax cut for entities which pay zero tax still generates zero revenue).

So from a government preaching fiscal restraint and sound economic management, we have seen a) $50 million spent over four years (2013-16), with another $50 million slated for the next four, to persecute the poor; and b) $100 million spent in one year (2015) to ship Barnaby Joyce and Julie Bishop and their ilk around the country and the globe. The return on that ‘investment’ by the Australian public – over which we had no say – is a) harm to welfare recipients up to and including contemplation of suicide; and b) Who knows? Presumably contracts to client donors, but if there is a discernible benefit to the nation I have yet to see it reported.

Independently wealthy politicians, people who have never missed a meal in their lives, are an enormous drain on the public purse. They are born into families that can afford to choose expensive educations which set the kids up for life. They grow up to be blind to their own privilege, yet make decisions which further marginalise and oppress identifiable groups in society, groups to which they have never belonged, and for whom they are utterly unqualified to make decisions.

Turnbull and Porter and Joyce do not understand that the entire point of fiscal policy, of a civil society, of collecting taxes and allocating resources to essential services, is to provide for those who – due to age, disability, parenting responsibilities, labour market conditions, whatever – can not always meet basic human needs such as food, housing and utilities.

And this is in a wealthy society whose shape and values are determined by people such as themselves, by the beneficiaries of inherited wealth. A society which in the 21st century means that ICT and metropolitan transport are necessities – for job-seeking – on top of food and shelter. A dominant culture which refuses to value reciprocity, mutuality, sharing, love. A government which co-opts these values to spout nasty and abusive rhetoric on mutual obligation and correct entitlement.

A government which pretends that a system which data-matches welfare recipients to Australian Tax Office (ATO) records is somehow acting on behalf of some special category of taxpayer, by persecuting some other category of taxpayer. People who paid taxes and received income support in the same year are the people receiving these letters: they are, by definition, taxpayers. As is anyone who has bought anything other than fresh food since 2001.

But that would be putting facts in the way of this government’s favourite pastime, which is to demonise welfare recipients (when it is not persecuting people fleeing persecution, or trolling women, and migrants, or ignoring Aboriginal rights).

This is a government entirely composed of people whose luxurious taxpayer-funded lifestyle falls outside of welfare categories. Its support base is also made up of people who enjoy private school fee subsidies, the medical advances borne of public teaching hospitals, immediate $20K write-downs on small business costs… but these are not classified as welfare either.

Under this value system, those who want for nothing are worthy of hundreds of millions in public moneys. Yet receiving and spending public moneys on food and shelter (rather than, say, mining truck diesel fuel) is somehow unworthy.

What a way to run a country which has been skilfully and beautifully managed for upwards of 50,000 years. A place of pristine rivers and verdant soils, of generosity and beauty and bounty, if only those who seized it for themselves could see.

The senior Minister, Christian Porter, insists that the system is working incredibly well, that it is a gold star system, that no better system could be designed. The junior minister, Alan Tudge, is nowhere to be seen or heard. The agency mouthpiece Hank Jongen consistently reiterates that he has complete confidence in the system. To date, the Prime Minister has not commented on the fact that a government agency is systematically driving low-income Australians to despair.

The evidence shows that the system is causing enormous harm to the poor. The minister and the mouthpiece say the system is working as it is supposed to work, operating as it is designed to operate, producing the outputs it is programmed to produce.

I believe them.

MYEFO mutterings: casual workers have heard it all before

This week I had the very familiar experience of listening to a neoliberal ideologue treat his audience as economic dunces.

It is symptomatic of neoliberalism that its public faces are well-remunerated to take economic claims at face value. Their task is to reproduce these messages to an audience of staff or readers or students or voters. The audience members are in turn expected to meekly be co-opted into the neoliberal project, just like the boss.

The boss prosecutes the case for increasingly precarious employment (for others, not for himself), for abolition of penalty rates. He may or may not understand that his claims rest entirely on ideological grounds, rather than actual economic efficiency measures.

The exorbitant cost of executive salaries – staff cars and subsidised fuel, business class travel, sabbaticals, superannuation – are invisible in these speeches. Yet the cost of paying casuals by the hour for work completed is framed as an expense to be economised. Meanwhile, high staff morale, reduced inequality, and the creativity and innovation that comes with a diverse workforce and social cohesion, lead to higher productivity. This is in contradistinction to neoliberal messages delivered by the boss to causal staff.

The causal work force

Neoliberal messaging is founded in a specific value system; and based on criteria developed by people who are very expensive to retain. For instance, an unspoken assumption is that paying an executive to travel to a conference is of value to the organisation; while penalty rates are a cost. No evidence is demanded for this kind of calculation.

It is not impact-neutral for the causalised worker to listen to this at our Christmas drinks event. The executive may benefit from delivering the message, but the worker does not. To be treated as expendable, to see our pay packets shrink, to be told our rates are unaffordable by people on hefty 6-figure salaries: such experiences are dissonant, and unpleasant, and take a long-term toll.

The causal worker can not ask whether another overseas trip for the boss is really better value for money than properly remunerating those who do the frontline work. The casual worker can not point to the efficiencies, the productivity gains, the savings in staff turnover that would stem from income security and basic conditions for the frontline workforce. It is much easier for senior management to denigrate young people as flighty or fickle than to recognise the unproductive privilege to which executives are accustomed.

And because it is easier, which is the opposite of hard work, that is what the executive does. This dynamic can be seen across the private sector; and its equivalent in public life.

The public sphere

People like Treasurer Scott Morrison and Finance Minister Matthias Cormann – and Barnaby Joyce and Joe Hockey and Tony Abbott – give every impression of being economically illiterate. They are a huge cost on the public purse. Yet these men have no hesitation in telling, say, welfare recipients how to live on a tiny budget in deeply unnecessary poverty.

A neoliberal government will characterise welfare recipients as a social problem lacking money management skills. In reality, people who rely on welfare to feed and clothe themselves and others – sole parents, carers, unemployed people, aged pensioners – are very adept economic managers. There is nothing unskilled, or lazy, or immoral, about maintaining a household on a pittance while the government of the day continuously attacks your very existence.

That government of the day, by contrast, is comprised of highly remunerated members who enjoy every social and financial structural advantage of a wealthy western nation. Many have been paid from Treasury coffers their entire lives. I have no personal knowledge of how ex-police officer and current Minister for Immigration and Border Protection Peter Dutton has amassed a $20 million property portfolio. But we can be sure Mr Dutton would claim this wealth is a product of hard work, or savvy investment or risk management.

Whatever risks Dutton has taken on behalf of himself and his family, it is only with money, and only while his base salary is paid – and thus the risk underwritten – by the state. The risks taken by Dutton on behalf of asylum-seekers, by contrast, are life-and-death matters: his decisions have directly resulted in mass human anguish, provided access for rapists to rape women and children, have triggered self-immolation, overseen forced child birth. We have paid upwards of $10 billion to see these lives destroyed on our watch.

Misallocation of resources

Organisations which propagate falsehoods such as an individual’s financial reward is commensurate with their hard work are really terrible economic managers, because the propagation of such messages requires resources. Every resource – time, money, labour, raw materials – allocated to the lies of liberalism could be spent on some other project, with some other return on investment.

It is a simple concept. Economists call it opportunity cost. Every dollar spent on one consumer choice is not available for every other possible spending decision.

The return on investment might be concentrated in the hands of the few, or it might produce long-term social good. Or harm. The $10 billion spent on Wilson Security and other interests to destroy the lives of asylum seekers has the return of electoral victory for a Coalition government.

Free market principle says that if people can amass vast private wealth through innovation and hard work – JK Rowling, say, or Bill Gates – they can do this without being subsidised or underwritten by the state. Similarly, public investment is for the long-term social good, or at least it is under principles of social democracy.

In contrast, principles of neoliberalism… just kidding. Neoliberalism has no principles, unless it is power (and wealth) for power’s sake.

The NBN is an example of the difference between social democratic principles and neoliberalism. The NBN is a national infrastructure project, conceived with a strong social justice component. High speed affordable internet for all would see delivery of knowledge and expertise to rural and remote areas, producing direct dividends in health and education; and indirect dividends in equality and social cohesion.

The NBN has since been transmogrified into a hotch-potch of inferior technology, private interests, and badly-managed compromises. It is costing more, for less social good – and more returns on investment concentrated in private interests (such as highly paid executives). Malcolm Turnbull has overseen this reallocation of resources from social good to private interests. While many insist he is innovative, is tech-savvy, those commentators ignore the fact that a man who amassed huge wealth from business decisions (and joined the Liberal party) is unlikely to be committed to, let alone skilled at, public-sector economic management.

Despite the dividends to rural, regional and remote areas, Turnbull’s deputy Barnaby Joyce is no more committed to the public good. Joyce was famously demoted by Tony Abbott for conflating household budgets with national fiscal policy. But while Barnaby was expendable on the point back in 2010, the current Treasurer has a tendency to do the same thing.

On top of his salary, Joyce claimed over $1 million in entitlements for the first half of 2015. Politicians together claimed $48 million for the same period. While welfare recipients must report any income within a fortnight, or suffer severe exacerbation of their existing poverty in the form of payment suspension and cancellation, the delay in expenditure reporting means we do not know yet the cost of politicians for 2016.

This year the costs will include most of that horrendously long election campaign. The one where Malcolm Turnbull gave himself 8 weeks, most of it on our coin, to secure the approval of the electorate to stare down his conservative back bench but instead lost 14 seats. It is unlikely the 2016 politician expenditure bill will come in under $100 million.

Again, that is on top of their $200-500Kpa salaries. Those 226 federal government MPs do not come cheap. But like the senior executive railing against the causal workforce payroll bill, this cost is all-but-invisibilised while a man with the morals and judgement of Scott Morrison is sent out demonise the unemployed, the carers, the sick and the aged.

It really is the most disgusting spectacle.

If the Coalition in government has grossly mismanaged the economy and can not maintain a triple-A credit rating, it should set out the causes, and the solutions. That is what agile innovative thinkers would do.

Warning: MYEFO ahead

Instead, Scott Morrison will come out tomorrow and tell lies about the state of the Australian economy. He will pretend all is almost well or sort of okay but what is wrong has nothing to do with him, the Treasurer, and his complete lack of any credentials for the job. He will resort to mumbo-jumbo on seasonal adjustment and commodities prices. He will claim there are international factors. He will say economic head winds are inevitable. He will put on his serious voice to say these are serious matters. Over which, alas! he has no control.

Morrison might mention globalisation as though it occurred recently – which it did, in conservative years. Conservative years are like dog years (with apologies to dogs) – one human year to seven conservative years. When you hear a mainstream commentator blathering about the problem of social media as space where people can comment? When facebook has been mainstream since at least 2009 and it is 2016? He is conservative.

Anyway. Morrison will lie about the dismal results of four years of Liberal economic management and wash his hands of his own gross ineptitude before turning to his favourite pastime: blaming Labor and demonising welfare recipients.

Australia avoided recession during the GFC under Labor, but looks unlikely to do so under the current Coalition government. Australia retained a triple-A credit rating under Labor, but seems less likely than ever to do so under the Coalition. No matter how nonsensical or the overwhelming evidence, Morrison will spend the time and expertise made available to him on the MYEFO to blame his political opponents and hate on the poor.

This is what economists call misallocation of resources. Morrison could be seeking and implementing solutions but instead, with the backing of the Coalition leadership, will decide that Labor-blaming and poor-hating is a viable option. There is no positive return on this to anyone but – surprise – the Coalition leadership team. Our polity is diminished by it. Welfare recipients are further disempowered.

Time and expertise, ever more so in the digital age, are subject to the same economic realities as any other resource. These public goods – Treasury officials, infrastructure investment, air time on the national broadcaster – continue to be misallocated by our government. To an economist, misallocation of resources is evidence of poor economic management.

The problem with White Ribbon Day: Everything

White Ribbon Day causes harm to women who have survived men’s violence.

Seeing a man like Mike Baird wearing a white ribbon, a man who ripped apart women-run services, re-traumatises women who have survived domestic violence. This is a man who, with great fanfare, announced the appointment of a Minister for the Prevention of Violence Against Women, while homicides by men against their intimate partners – that is, women who they lived with or who were trying to leave – increased by 40 per cent.

So the Baird strategy is an abject failure, with which women have paid with their lives.

Baird treats our safety from men who bash and kill women as an asset-stripping exercise. Baird and Abbott and Turnbull take women’s services, strip us of everything that has been built up over 40 years, and defund us on hyper-ideological pretences.

As a religious man, Baird then hands what is left – the social services equivalent of a shell company – to client donors, to organised religion, to Mission Australia and the Salvation Army and St Vincent de Paul aka the Catholic Church.

These are organisations which, on the evidence, should never be given responsibility over the lives of women and children. These organisations take children from mothers who have been traumatised by men; these organisations have, for centuries, been staffed by men who rape and otherwise mistreat children. And women.

In my household, where I alone have been responsible for feeding and clothing and educating and keeping safe three children, White Ribbon Day is a day to take a deep breath and remember that my society, and my government, sees us as an opportunity for a fancy breakfast and a lapel pin.

I remember back then, fourteen years ago now, wondering what it would be like to get through an entire day without thinking about safety first, without obsessing over where we had been, about what we had escaped. I remember wondering if I would ever live a day without the flashbacks every hour, the horrors every night.

But time really does heal all wounds. Through soccer seasons and camping trips and social media connections and being our fabulous selves, we have become people who are not defined by a man’s violence. Time and love and family and friends and music and having a job and education and sport and safety – all of these together healed the wounds.

Above all, safety.

Every time I unlock the front screen door, fourteen years later, there is still that tiny moment. I take a breath, and remember past fears, and give thanks for being able to walk into my front yard without checking for potential danger. It is a muscle memory thing, a bodily reminder. Moving into a house with a lockable screen door and a gate was a revelation. A gate! I could not believe how safe I felt. I had never felt so safe.

We are still safe. Due to eternal vigilance. Due to my strength and resilience, and that of my children, and to family and friends who supported us through hell and high water – where hell and high water is a euphemism for the violence and the threat of violence perpetrated by an adult man who said he “loves” us.

In those years, I completed a law degree. I enrolled in post-graduate study. I had the benefit of a comprehensive social safety net that allowed me to parent and to work. I bought the house with the gate. I have seen one child into the adult world, with two more on their way. I do this with enormous privilege, with tertiary-educated whiteness, with family support, with friends who praise and do not judge, with the universal education and universal healthcare – and income support when needed – that are the cornerstones OR SHOULD BE THE CORNERSTONES of our society.

And every year, I shed furious tears and shake with anger and pain when White Ribbon Day comes around. At this organisation made up of members who know nothing, absolutely nothing, about men’s violence against women and children. This organisation which causes trauma, by minimising and trivialising the cause, the source, the problem. This organisation which paralyses my otherwise normalised existence, which reminds me again, as though I needed reminding, how little our society cares about people like us.

White Ribbon compels women to mobilise, to donate free research, to volunteer valuable time, to combat the myths and victim-blaming which it unreflectively reproduces. White Ribbon is white patriarchy, it is men dominating the message, it is damaging and harmful to women and children. Like the organisations to which women’s services have been handed, the corporate interests and organised religion (same thing), White Ribbon does enormous harm and precious little good.

Dear White Ribbon. Please get out of the public sphere. Shut yourself down. Forever.

The gold plated ABCC bill, or who is counting the damn cost?

As duly noted by headline after headline, interpersonal relationships in the Pauline Hanson One Nation (PHON) party are dysfunctional.

Yeah, we know.

If the focus must be on internal party dysfunction, maybe take a look at the governing Coalition: conservative homophobes Cory Bernardi and George Christensen; dangerous and confused racist Peter Dutton and opportunistic wingman Michael Sukkar; sadistic prosperity theology adherent Scott Morrison, who shouts from both sides of his mouth.

It is dissonant (at best) to ignore ongoing internal government strife while simultaneously and enthusiastically projecting Turnbull as an innocent yet besieged ‘moderate’.

Take a look at the National Party backbenchers who voted against their senior Coalition partners this week. Or the Nat ministers who exited the chamber rather than be seen to abstain. Looks like a governing Coalition in strife, no?

No, because we take what the governing leaders say at face value. Floor-crossing is all good, Nationals leader Barnaby Joyce assured airily, gurgling about individual rights. No problem. No, he will not say whether he supports the position of the no-shows, although he is completely free to, should he choose to be accountable to the electorate.

What’s that Skip? Accountability? Westminster principles, you say?

Nothing to see here, confirmed the boss. Turnbull was supposed to be speaking, statesmanlike, on free trade discussions at the Peru APEC meeting. But instead, he was side-lined from his own agenda by the racist rabble in his own ranks. As usual.

By a stroke of luck, the Minister for Immigration and Border Protection had once again cleared the air for Turnbull to wax lyrical on our successful multicultural nation while carefully conflating migration with a non-material terror threat.

Just kidding. This is what passes for strategy in the Liberal Party ideas room these days.

Dutton did the usual thing, went on Sky News, made nasty racist remarks about refugees. He defamed hundreds of thousands of Lebanese Australians, presumably including much loved parents and grandparents who have passed away. He did this by implying that Lebanese Australians who arrived here in the 1970s are responsible for 21st century terrorism in Australia, which has not in fact occurred. Dutton referred to charges, not convictions: like the plod he is, our man remains wilfully ignorant of basic principle such as innocent until proven guilty and all equal before the law.

Dutton’s implied premise is that ethnicity is a determinant of criminality. This is the worst kind of social Darwinism, and does not stand up to basic scrutiny; although it does remind us that science can be, and has been, racist. Dutton defamed a dead liberal Prime Minister in the same breath, but whatever. Turnbull was probably not a Liberal during the Fraser years anyway.

A nasty and harmful routine

This bad cop-worse cop show that Dutton and Turnbull routinely perform is getting old. It goes like this. Dutton says something grossly racist. Turnbull is asked to repudiate it. Acres of column inches, volumes of airspace, open up for Turnbull to play his besieged moderate character.

Our diversity is our strength … we must guard against extremism, Turnbull lectures paternalistically, for the purpose of appearing pro-multiculturalism while conflating migrants with terror threats.

Malcolm loves this stuff. He must. Why else would Dutton be sent out to perform the opening scenes of the act every other week?

Hard to say.

The smart money is on another atrocious MYEFO. Such cynics. Causing actual harm to actual Australians is obviously better governance than addressing yet another looming MYEFO mess. Has this Coalition government passed a budget since regaining power in September 2013? Three years and two months ago? Why do you ask?

Everything old is news again

Speaking of racists, the story of embattled Senator Rodney Culleton looms large for all the wrong reasons. What does it matter that he and his leader are not talking to each other? Surely this is a last order issue. Perhaps the fourth estate is holding to account those federally funded extremists who deny climate change and peddle race hate on our coin?

Nope. The Culleton case does matter, but not because of internal PHON disunity. Along with bankrupt builder and former Senator Bob Day, Culleton matters because his status as a Senator is potentially unconstitutional.

This is costing us an enormous amount of money.

The cost has blown out as a direct result of the government seeking to secure the Culleton vote for its double dissolution (DD) bills despite what they did or did not know about the validity of his election. The bills had to be voted down earlier this year, to give the PM his bold, Turnbullesque double dissolution announcement. Nine months later, the bills can not be allowed to be voted down, because that would deprive Malcolm of oh who knows. Some triumphalist nonsense.

It is all about Malcolm. And it is costing a small fortune (or what is a very large fortune to most of us).

The phony grounds for the DD election are at stake, the election in which the government lost 14 seats and still claims to have a mandate. Naturally, no amount of taxpayer funds is too great, no plotting or dealing too dodgy, up to and including accepting the vote of potentially ineligible Senators. The alternative would be…well. The alternative would be more egg on the face of Malcolm, to which he is presumably becoming accustomed.

But men like Malcolm do not think like that.

Recall that in the tedious, dying days of that 8-week campaign, the Treasurer started shouting false and nasty claims about welfare recipients. Again. This is par for the course. Identify any group in society already oppressed, violated, impoverished and disempowered by the state – as well as by the dominant social classes which benefit from state oppression of others – and the Liberal Party will hitch its wagon to further crushing their life circumstances.

This is a government that demonises children who care for sick parents. Why?

I mention this because internal Coalition campaign polling would have shown One Nation gaining momentum. It is axiomatic that the Liberals tell lies to woo (back) One Nation voters. It was the Liberal Party that first pre-selected Hanson. The Liberal party created her name recognition. They gave her a platform. John Howard accommodated her racism for base political gain, no matter the cost. Turnbull, Morrison, and Dutton are doing so too.

But there is trouble in dystopia.

Hanson’s brand of sexist racism and xenophobia has always attracted nasty opportunistic men. We have been here before. Hangers-on like David Oldfield and John Pasquarelli rode her coattails to government salaries, before crashing and burning in a blaze of incompetence. Hanson and a new loopy-bloke coterie rise phoenix-like from the ashes.

A few sums

And all the while we fork over millions to fund this vicious brand. We pay these people to hate on welfare recipients, to tell lies about Aboriginal people, to whip up anti-Islam sentiment.  From 11 Queensland parliamentary salaries in the 1990s, to four Australian Senate salaries now, One Nation does not come cheap.

Queensland MPs are paid $166,621 base salary. Those 11 Queensland MPs would have cost $5.5 million in today’s dollars. Think what that funding could do for Queenslanders escaping domestic violence. These are people who claim that governments pay ‘more’ to Aboriginal welfare recipients on the basis of their Aboriginality, a blatant lie. Yet all this cash was for nothing – except it created a latent platform for One Nation to return.

Today, on top of Australian Electoral Commission per vote funding ($1.6 million in 2016), the cost of PHON senators begins with base salaries of $190,550 (three years for three of them, six for Hanson). That amounts to $2.85 million, to which we can add at least another $1.5 million for entitlements and other costs (at $100K per senator per year). Add in time spent spreading hate and climate change denial on our national broadcaster.

And tell us again about welfare recipients, Scott.

Imagine if Aboriginal women who have a clear vision for treaties, land management, the arts, migration, social justice, health (to name a few), were speaking instead of Hanson and Roberts sitting on high-platform panels. This barely happens. While across Australia, Aboriginal people are doing this work: Aboriginal rangers, caring for country; Aboriginal lawyers working for justice; Aboriginal doctors, artists, academics, journalists.

And what we get in the public domain is One Nation. Backing an inquiry into racial discrimination law, pushing onto an NBN committee. The NBN. Hanson. Appointed with Turnbull’s blessing.

These people add nothing to the social good. They cost us tens of millions of dollars. In return, we get further damage to what social cohesion Australia can claim. It is because of this massive cost and damage, rather than any mealy-mouthed accommodation and normalisation, some cup of tea, that One Nation has to be taken seriously.

The cost, the damn cost, and the legal dimension

Culleton is now before the High Court, which is far from cost-neutral. This follows a murky trail, the seeking or circumventing of legal advice on the eligibility of Culleton or was it Bob Day, by Attorney General George Brandis. Former Solicitor-General Justin Gleeson reportedly sought further QC advice on the matter – which again, is not cheap (my post on the AG abomination re the SG here).

All this came under scrutiny in the Senate Legal and Constitutional Affairs Committee, which – did I mention? – is not cost neutral. Senate Committees cost thousands of dollars, in transcribing and livestreaming and approvals, in the time of highly qualified and highly remunerated individuals. As though SG Gleeson or chair Louise Pratt could not be doing something more useful than mopping up the mess made by the Commonwealth Attorney General’s misleading claims? (Full findings on Brandis misleading parliament: here).

Whether Culleton was legally elected under s.44 of the Australian Constitution is yet to be determined. Only the High Court has jurisdiction to decide this, irrespective of Culleton blustering, embarrassingly, about recognising it. This is no more Culleton’s decision to make than it is for the Solicitor General to determine – rather than advise the government on – the legality of Culleton’s election to the Senate.

The transcript of Culleton addressing Chief Justice French is not just excruciating but enraging. Hearing the Chief Justice schooling a racist oaf like Culleton contradicts every basic principle I teach to future lawyers.

Where I come from, first year tutorials are run by income-insecure post-grad students in overcrowded classrooms; and incur HECS debts which burden many students, particularly women, into middle age. Yet this blustering fool, who we pay $200K pa to air his rough-n-ready racist views on the national stage, a man riding the coattails of the most outspoken hater in Australian politics, refuses to reach into his pocket for a lawyer. He gets a one-on-one tute from the Chief Justice while handing us the bill, while hating on the poor.

Disgusting.

Who knew what, about the potentially unconstitutional election of Culleton, is yet to be fully exposed. What we do know is that Turnbull and Brandis will disregard cost and throw any amount of other people’s money at dubious political strategy for dubious political gain.

And it may yet all amount to nought. To money down the drain. Wasted, by a profligate government which touts itself as superior economic managers to their predecessors. Their predecessors who, by the way, recession-proofed Australia from the GFC.

Post-truth indeed.

Despite Culleton and the shadowy role of the Attorney General, chewing up resources across the most expensive political and legal processes in the country, despite the cost, the damn cost, who is counting the cost? If Culleton is ousted, by law or by volition, we may never know.

The disappearance of Senator Bob Day

Many would say Who cares? And fair enough too. Day is gone. By all accounts, Day is a charlatan and a spiv, a man who rips off home builders and leaves tradesmen unpaid, while seeking high office, while indulging in dodgy deals, quite possibly in breach of s 44(v) of the Australian Constitution.

But Day does matter, because he is a type, he is a pattern; and those who unashamedly courted his vote are still running the country.

Like Pauline Hanson, Day is a former Liberal party candidate. Having failed there, Day was elected as a Family First candidate. He failed there too – as mentioned, he is now gone from the Senate. He is also a bankrupt building company founder – on any measure, a failure. So a man whose public profile alone amounts three ignominious failures. Yet the government tapped Day to herd up cross-bench votes to get its bills through the Senate.

Talk about reward for merit in a liberal democracy.

And here is a government which actively wooed this bankrupt building boss to shepherd in the Senate vote for the Australian Building and Construction Commission Bill 2014 which massively empowers building bosses to disempower workers. The law will result in on-site, legally sanctioned, government-endorsed deaths of construction workers, most likely the youngest workers with the fewest employment options.

Yes, it will. Tell us again about youth unemployment, Scott.

As has been analysed at length on this site and by independent media, the government productivity claims for the ABCC are not merely erroneous but disproven. Academic and bureaucrat economists have demonstrated that the false claims arise from errors in an Econtech (now part of KPMG) report (Allan, Dungan and Peetz, 2010).

Yet still Turnbull wrote to His Excellency:

‘The government regards this bill as of great importance for promoting jobs and growth, improving productivity, and also promoting workplace safety through taking measures to deal with widespread and systemic criminality in the building and construction industry.’

What Turnbull says to Cosgrove, along with 13 pages of legal advice (from George Brandis!), does not change the findings that the claims are wrong.

Nevertheless, the Prime Minister made the claims, in writing, to the Governor General; who duly repeated the falsehoods when he recalled the parliament, presumably misleading it.

Which brings us to where we are today

Turnbull is now negotiating and compromising on a bill that he refused to negotiate without a double dissolution election which delivered Culleton to the Senate, potentially unconstitutionally; an 8-week campaign, most of it paid for by the public; and a loss of 14 seats, which he calls a mandate.

As I write, news came in that a government bill failed in the Senate because Hanson and PHON colleague Brian Burston, on whom the government was relying to get the legislation through, failed to show up to vote. Presumably these two people were sorting out their internal party problems. This presumption is based on audio: the Hanson and Burston audio grabs on Culleton. He had some personal issues. He needs to better communicate.

Oh never mind, said the government. The bill will be presented again in the morning. Like running the Senate is a game. Or cost neutral. Which – did I mention? – it is not.

How many services could have been provided for the cost that One Nation meetings just cost the Australian people in wasted Senate time? And will again tomorrow? How many life-saving dialysis sessions, how many life-changing literacy classes, how many places to escape from violent men?

Of course the racism, the hating on welfare recipients and women escaping domestic violence, the abuse of process, the piteous nodding from the national broadcaster – all these things are top-order issues; and these are real costs.

At the same time, the hypocrisy, and the lies, and the harms – these are not unrelated to the financial cost, the eye-watering financial cost. The money. The dollars. Just quietly, I want what I pay in tax to go on universal healthcare and education. Carers. The unemployed. Women and their children escaping violence. Not Senate games. Not schooling idiots in the High Court. But maybe that’s just me.

Who is counting the costs?

First principles of property law: the right to exclude

If you have not seen the footage of Murandoo Yanner banishing Pauline Hanson from the Cairns Indigenous Arts Fair, it is well worth the 26 seconds.

The weekend this clip was posted, I was preparing my first ever property law seminar, Basic Concepts in Property Law. Serendipitously, the High Court case of Yanner v Eaton [1999] HCA 53 was on the reading list.

Yanner is a winner

Mr Murandoo Yanner, a Gunnamulla man ‘of the Gangalidda tribe’, appealed against a fine issued by Mr Eaton of the Queensland Police Force. He won in the Magistrates Court,, however Eaton won an appeal to the Queensland Supreme Court. Yanner then appealed to the High Court. Mr Eaton was joined by four Attorneys-General. The appeal was allowed, which is the mild-mannered way the High Court has of saying that Yanner won his case.

The decision amounted to recognition by the common law of Yanner’s rights under the Native Title Act 1993 (Cth). There was also a message for those four Attorneys General:

  1. Order that each of the Attorney-General of the Commonwealth, the Attorney-General of the State of Western Australia, the Attorney-General of the State of South Australia and the Attorney-General of the Northern Territory pay to the appellant the additional costs incurred by him by reason of the intervention of that Attorney-General, such additional costs to be taxed.

This is one of those slap-downs that nobody ever says is a punishment because the law gets to define things. Costs orders send a strong message to the parties, and costs orders against four Attorneys General are as strong a message as any from the High Court. But we are not allowed to say the order is a punishment or remedy, because punishments and remedies (fines, jail terms, damages awards, injunctions) are issued under a different curial function to costs orders. This itself is determined by the High Court, by which all other courts are bound.

In lay terms, four wrists were slapped. A fifth wrist was too, when the entire seven-judge High Court bench doubled down and ordered Eaton to pay Yanner’s costs in the Queensland Supreme Court too.

The message from Mr Yanner, in exercising the right to exclude Pauline Hanson from the Cairns Indigenous Arts Fair on moral grounds, was as unambiguous as those costs orders.

The recording cuts in as Yanner is saying ‘Aboriginal people’ and he continues ‘and now you’re kicking the Muslims around. Go, go’ he says, waving Hanson and her entourage away. ‘You’re just a racist,’ Yanner tells her. ‘Disgraceful. You are a woman lacking moral fibre. You are intellectually dishonest, and you’re not welcome here.’

Hanson turns around and leaves. As she does, cheers and applause can be heard from people off-camera.

The direction to leave the premises, the reasons given, and the cheers and applause, all contain important lessons in basic concepts of property law. Especially when the clip stars the man whose spectacular 1999 High Court  win is also prescribed reading. And especially when there are considerable numbers of young Muslim Australians enrolled at my university.

But would it be proper to show in week one? I messaged a mate doing his PhD at Melbourne Uni, a Ngunawal man whose judgement I trust absolutely, and who has also taught undergraduate law classes. Should I show the Yanner clip? I asked. What will it add to the lesson? he replied. Right to exclude, moral grounds for exercising right to exclude, community consent and consensus, I said. Go for it!! was his wise reply.

And yes, it was Ahmed who came up after class, grinning broadly, and asked is that the Yanner from the case the High Court case? Is that the same man??? It felt so good to smile back and say yep, that’s him. He’s a strong Aboriginal man and stands up for Muslims too.

Contrast the current political leadership and its shadow partner Pauline Hanson with the characters in this story:

  • An strong message from our highest court to four Attorneys General and a police officer (in the form of a costs order);
  • Unambiguous grounds for exercising the right to exclude a person from a specific place (you are intellectually dishonest and you’re not welcome here);
  • Collegiate support from a First Nations man to gather the courage and show a radical clip to 160 property law students in week one (What does it add?.. Go for it!!);
  • A young Muslim man empowered by a First Nations man (is it that Yanner? The same man? Yes!)

The Dunlop analysis

The dominant political news this week is yet another ugly announcement on asylum seekers. Its point would be lost without what Tim Dunlop refers to here as Turnbull being aided and abetted by the political media.

It is worth quoting Dunlop’s bullseye prediction at length. On Hanson, to whom Turnbull should, but like his predecessor Howard will not, say ‘you are intellectually dishonest and you’re not welcome here’, Dunlop notes:

“Pauline Hanson’s One Nation can no longer in any way be considered maverick, independent, anti-establishment, anti-elitist, or in any other way marginal to the political process and the political class. They are now well and truly an establishment party, legitimised by the Turnbull Government. This will be part of Turnbull PM’s lasting legacy. The resentment and anger that has always driven Hanson’s politics is now being assuaged by this courtship and legitimisation. She has got what she has always wanted: a seat at the table, an invitation to all the best parties, and the ability to entrench her own exceptionalism.”

This prescient observation is preceded by Dunlop’s equally accurate assessment of how the Turnbull capitulation will be packaged for the punters:

“This calming of the waters will be aided and abetted by the political media who long for a new “settlement” and the triumph of what they still insist on calling centrism. Or sensible centrism. Turnbull’s capitulation to the right and abandonment of everything he once allegedly held dear will be reinterpreted as pragmatism, sold as success, and be offered as evidence of his rising stocks. The “sensible centre” will be, as is nearly always the case, rightwing.”

Now picture any news coverage from the past two days. Any broadcast, any social media news feed, any bulletin, any hourly update, the latest headlines, any online news site, or op-ed, or analysis, or print edition. Has there been unambiguous condemnation of the racist hate and petty wedge politics gurgling from our political leadership?

Another Coalition regime, another week, another race-hate bait day

The story is that the Prime Minister and his Minister for Immigration and Border Protection are going to table a bill which, if passed, will outlaw people who have sought asylum in Australia from ever entering the country, based on one mode of transport – boat. This is the mode of transport by which Turnbull and presumably Dutton’s forebears, as well as every single person prior to the commercial aircraft industry, reached what is the largest island in the biggest ocean on earth.

Until around 60 years ago, for around 60,000 years of human occupation of this giant archipelago, there was no other way to get here.  The boat obsession (as I have written before), is unreal. It is obscene. It is the right to exclude on racist steroids.

Yet Malcolm Turnbull and Peter Dutton, like Tony Abbot and Scott Morrison before them, are choosing, for reasons of their own aggrandizement and absolutely no other cause, to disseminate yet more racist hate across the country.

Naturally, given the message makes for such compatible bedfellows, Pauline Hanson took credit for the government decision. Like Abbott and Morrison and Turnbull and Dutton, bigotry and hate-mongering are her favourite pastimes. Oh that we could turn the tables on all of them like Murandoo Yanner did, and say ‘you’re just a racist. Now you are kicking the Muslims around. Go, go… you’re not welcome here’.

The right to exclude a person from a territory

You come on my land, I sue you in trespass. Of course, there is no action in trespass if I invite you on to my land (the police are particularly sleazy and tricksy with this one. Be warned). Similarly, the law on country requires asking permission. The right to exclude is rarely needed when people have respect, and abide by the rule of asking permission.

Legal systems regulate human behaviour across a society. All cultures have rules about leaving our own place and entering neighbouring land. The English law, which is based on the English value of land as a source of wealth, emphasises the right to use and enjoyment, the right to exclude others, and the right to alienate – to transfer your interest in land to another (such as by sale or succession).

Obviously no-one would ever accuse the English of being internally consistent – they trampled across the world with their guns and bibles, breaching their own rules with vicious abandon. This differential application of their own principles is both a source and a product of deeply racist imperial violence.

But on this continent and her islands, for 60,000 years and counting, the central value is that the land is the source of the law (Black 2011). To harm or do wrong by the land is to harm or do wrong by the society. Before crossing a border, a person with authority to speak for country must give permission. The visitors are then welcomed to country. As in many cultures, this is a public ritual which endorses or verifies individuals’ actions.

This is not a complex proposition. In white law, depending on the type of land (public, private, rented etc) permission to enter is required, whether from the owner, tenant, caretaker, ranger, or other official. We might enter a park without authorisation and be issued with a notice or a fine. We might ring a doorbell, or knock on wood, bring a bottle, wait to be offered a seat. ‘Come in!’ we say ‘Please, have a seat! Can I get you a drink?’

These are host and guest norms for what we conceptualise as the private sphere; just as trespass and permits govern the wider social, or public, space. The norms and rules are shared with and taught to all members of a society.

In short, every culture on earth has systems of rules and norms for human interactions in different spaces. Australia is home to the oldest continuing culture on earth. This is one reason that Welcome to Country is not some token ritual or nod to political correctness, as many seek to portray. A Welcome to Country is the continuation of host and guest traditions established over 60 millennia.

So who is welcome here?

It is telling, then, to see how the bad-cop-worse-cop trash talk that passes for public debate these days is playing out. Hanson took credit for the government hate-mongering on refugees, adding ‘refugees are not welcome here’.

Right on script, Turnbull was given all the air time and column inches he wanted to intone gravely, in his favourite paternalistic voice, what a great country this is for resettling refugees. The most successful multicultural nation, he lectures us, with added erasure of First Nations people here, who have been developing multicultural protocol across 300-700 nations since megafauna roamed the earth.

Never mind the millions of words, the how many reports, including from the UN Committee Against Torture, the Senate Inquiries, the shameless bullying (and probably illegal inducement to leave) of Human Rights Commission President Gillian Triggs, the rapes, the murders, the self-immolations, the forced birth, the staff who sexually abuse children, the billions and billions and billions of dollars to corporate donors which run our ‘off-shore detention centres’.

‘Refugees are welcome here’ Turnbull lied, disgustingly, and his media cheer squad cheered. He must have some special plan up his sleeve, they hinted, in their increasingly desperate delusion that Turnbull is not really like this.

First Nations, legacy media, and the political leadership

But Turnbull really is like this. He really, really is.

Our crimes – a crime scene since 1788 as First Dog On The Moon, depressingly but accurately, put it this week – can not be sprinkled with fairy dust by a Stockholm syndrome legacy media who depend on leaks and tips rather than do their job (Andrew Welder’s searing analysis of dysfunctional media dynamic here).

Some future third-country settlement will not make the list of our gross human rights violations magically disappear. Who even thinks like that?

Well, political columnists from the Guardian to Fairfax to the ABC do, for a start. Which leaves only the independents like New Matilda and Independent Australia for anyone of basic human decency to read. Thank goodness for new media, because when it comes to Malcolm Bligh Turnbull, the fourth estate – whose duties include mediating the conversation of the demos ie between the public and political leadership in the modern nation state – has been derelict indeed.

The Yanner message is a lot clearer than the Turnbull-Hanson lies.

“I have been engaging with Indigenous communities and First Australians throughout all my time in public life and before that, but particularly as Prime Minister,” Turnbull lied, disgustingly, on his Abbottesque tour of remote communities this week. And the media cheer squad cheered, creating the impression of community consent and consensus that cheering creates.

When Murandoo Yanner asserted the right to exclude Pauline Hanson from premises on grounds of racism and intellectual dishonesty, the crowd clapped and cheered, showing community consensus; and Hanson, knowing the rules, left. She then took to the media to blather about alcoholism, just as Turnbull did in Yalata yesterday, because they both know how these things operate in the media and public spheres too.

What a repulsive pair. In their castles of sand, telling their mountains of lies, exercising the right to exclude people from this Aboriginal land, people who are fleeing persecution including wars in which we participate, and all to the manufactured sound of a falsely-constructed consent.

The unambiguous message to the Turnbull-Hanson cabal should mirror the one that Yanner delivered: You don’t care about Aboriginal people. Now you are kicking the Muslims too. You are just a racist. Go, go. You are lacking moral fibre. You are intellectually dishonest and you are not welcome to keep spewing your racist hate across this country.

The curious classification of the Kerr-Queen correspondence and other stories

Last Friday morning 14 October 2016, like Australian law and politics nerds everywhere, I was glued to my computer screen as Solicitor General Justin Gleeson SC took a seat before the Senate Committee on Legal and Constitutional Affairs.

An Honours thesis sat neglected as I glanced from monitor to smartphone, tweeting the key answers and watching aghast as Senator MacDonald boorishly dismissed the standing rule that he show respect to the witness, who is the nation’s most senior law officer who is not also a politician.

Like most people, I thought there were three matters. The first is that the Attorney General directed all requests for the Solicitor-General’s advice be approved by him (links below). This was followed by the AG telling Parliament he consulted the SG on the change. Under scrutiny, it turned out this consultation was more like a conversation. Or a question. Perhaps George asked his mate Justin what he thinks.

Attempting to blur the lines between collegiality and the formal business of government could be seen as intellectually dishonest at best.

Next was the way SG Gleeson’s advice on draft bills was represented by Brandis QC to shadow AG Dreyfus QC. In writing. According to Gleeson, his advice on a marriage equality plebiscite bill and on the (now) Citizenship Act related to earlier drafts than those which were tabled in parliament (more links below to these too).

Not to put too fine a point, but George Brandis QC is Attorney General. He told shadow AG Mark Dreyfus QC, in writing, that SG Justin Gleeson SC had advised him, and thus the government, that a majority of the High Court would reject a constitutional challenge to an act which allows the Minister for Immigration and Border Protection to remove citizenship from Australians, including children who are born here.

Children. Born here. The Minister. Peter Dutton. Their Australian citizenship. The High Court. In its original jurisdiction. Where it can strike down Commonwealth laws as unconstitutional.

Anyone tut-tutting that Gleeson appeared angry has no reverence for the law or its institutions. To not express any emotion at such flagrant abuse of democratic principle and disregard for international law would be the true wrong.

But there were four matters.

I remember hearing Sir John Kerr correspondence. I remember thinking no wonder Dreyfus is on fire if that is in the mix. Then there was a knock on the door and the BestHonoursStudentEver™ arrived and I had to drag myself away from the Senate Committee to concentrate on… well. Much the same thing really. His research is on whether the judiciary can operate as a restraint on power in the face of neoliberal overreach in the parliament, and his reading has taken him to Lord Coke asserting judicial independence in 1610.

Plus ca change n all that. But speaking of overreach, Kerr had disappeared. The other stories were too big. All are covered amply by The Guardian and others:

Brandis orders his office must approve requests for SG advice

The Attorney-General issued a disallowable instrument, of all things, directing all requests for legal advice from the SG first be signed off by him, Brandis. The horns were sounded on 3 June by Fairfax, where James Massola located other sources of ‘frostiness’:

“Several suggested the relationship between Senator Brandis and Mr Gleeson had grown frosty over matters, including the 2013 same-sex marriage High Court case, the 2015 advice Mr Gleeson provided over changes to citizenship laws and over the drafting of same-sex marriage plebiscite legislation.”

Indeed, indeed. And here we are.

As he reliably does, Richard Ackland in The Guardian provided an accessible legal explainer, warning us all that rustlings were afoot or as the headline put it, Brandis has a history of meddling… and he was at it again.

Brandis made the order in May, immediately after the brought-forward budget and immediately before the pre-announced double dissolution election over the ABCC bill. The timing alone indicates something other than an informal or routine decision.

The ins and outs of Brandis’ moves are reported with great clarity by Karen Middleton in The Saturday Paper here. Her piece includes a particular detail on the correct interpretation, according to former Solicitor General and Chief Justice of the High Court Sir Anthony Mason QC, of the Law Officers Act 1964 (Cth) s 12: Functions of the Solicitor General.

Hold that thought.

The bill to authorise a Marriage equality plebiscite

Those mentions of marriage equality and citizenship bills are not insignificant either, not least because the bills have – and ought to have – significant constituencies of interest. Marriage equality and citizenship are matters which impact, a lot, on the type of society we are and want to be. Even the anti-marriage equality debate indicates that a significant proportion of the electorate thinks this is a thing that goes to what matters in our society.

A marriage equality plebiscite, thank goodness, is dead in the Senate. There is no need to rake over in detail the coals of yet another government mess. Lane Sainty has done a sterling job, such as here. Details of the bill are at the Parliamentary Library here.

But it is worth noting that the Prime Minister will likely have to drag the plebiscite carcass to the next election. It is combined party room policy after all; and what’s a few superannuation changes for the rich between friends when we can put queer lives at risk for the sake of a puerile political compromise playing out just like the eye-wateringly expensive opinion poll to settle conservative scores that produced Brexit?

The Australian Citizenship Amendment (Allegiance to Australia) Bill

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) did pass, with much less fanfare than the Plebiscite bill failed to pass. I wrote thousands of words on the thing, which is a dogs breakfast of xenophobia and disregard for international law.

But as is the way of these things, when a bill is passed by both major parties, there is insufficient conflict to generate media interest in the detail. So we have yet another piece of utterly unnecessary terror-mongering law to go with all the others – Foreign Fighters, Data Retention, the Military Call-Out powers that have steadily blurred the line between civil and military functions since the Howard years.

All these laws needlessly extend the authority of government agencies, from the spies to the military, to ever more brutally control us, the citizenry. Up to and including executive cancellation of citizenship from Australians, which in turn implies executive detention: a non-citizen can be imprisoned indefinitely without trial.

This is called ‘immigration detention’.

Still wondering why Gleeson was visibly angry that Brandis passed his advice off as capable of surviving a High Court challenge when a different, later citizenship bill was tabled in the parliament? Any lawyer – most people – would be livid.

Whether Australian citizens are safe from the goon squad formed by Morrison and now commanded by Dutton and Quaedvlieg also matters to what kind of society we are and want to be. Remember the blokes who trapped themselves in Flinders Street Station because Melbourne did not want armed thugs harassing brown people on its streets?

Ah yes, Operation Fortitude. Melbourne was the winner on the day.

A week went by… and finally the Kerr-Queen correspondence got a run

The Kerr-Queen correspondence story emerged independently of the Brandis-Gleeson stoush. The story is that Professor Jenny Hocking and barristers Anthony Whitlam QC and Tom Brennan are taking this matter to the Federal Court.

It goes like this. The classification of the Kerr-Queen correspondence is private or personal; despite the fact that the content of the letters is the creation of a constitutional crisis in an otherwise stable constitutional monarchy between the monarch and her representative in a member of the Commonwealth.

An official classification is subject to the 30-year rule; while personal correspondence would remain under wraps until 2027, that is, for 50 years after Kerr’s exit from the Governor-Generalship.

Writing for Fairfax, Tony Wright remarks that the classification is curious. Tom Brennan is more forthright. In his opinion titled Australia Owns its History, Brennan sets out the origin, meaning and purpose of the Archives Act 1983 (Cth) and writes that Sir John Kerr’s letters to the Queen

“were official, and not personal. They were records of the official establishment of the Governor-General within the meaning of the Archives Act and Australian law has been clear since 1983 that they were to be made publicly available pursuant to the open access provisions of the Archives Act 30 years after their creation… Mr Turnbull is determined that all proprieties will be observed in any approach to Buckingham Palace. Those proprieties require that Mr Turnbull not seek the agreement of the Palace to release of documents, the release of which is required now by Australian law.”

It is a beautiful, brief, opinion. After a nod to the etiquette of notifying the Queen of any release, Mr Brennan concludes:

“We Australians do not need to ask the British Monarch for her consent to our accessing that history: our Parliament secured that for us in 1983.”

The case is that the letters should be released because the letters are official correspondence and therefore fall within the 30-year rule, which has expired, according to the relevant statute, which is the Archives Act 1983 (Cth).

This will come down to the current classification (personal) and the correct classification under the Act (official).

Law is magic. The law could (for example) determine that on the true meaning of the Act, using rules of statutory construction, which are legal rules, that the classification is in law official, not private, despite being in fact private and not official. At the moment. On paper. Once the classification becomes official in law, it becomes official in fact too.

I know that sounds confusing, but this is why law is so intimidating. This is the power of the law, and in a principle that got an airing in the USA this week, everyone then abides by the decision and goes home. Peacefully.

Messrs Brennan and Whitlam may be seeking an order for immediate release from the Federal Court. Or an order that the National Archives correct the classification, which would remove any legal barrier to release. Similarly, Brandis could presumably oversee a classification change tomorrow. Or the National Archives could correct the error, without political interference, and the whole thing would be resolved.

That would be a lot cheaper. Running the Federal Court is costly, and there is no justification for the Attorney-General or any other politician to expend court resources on secrecy and legacy disputes.

Who cares?

Why not just put on the public record the workings of our constitutional monarchy? It is peaceful and stable, no? What is the problem? Kerr is dead, Fraser is dead, Gough and Margaret Whitlam are probably busy with those appeals from the Hague. Is it protocol? What protocol lol these are people who endorsed a constitutional coup. Is it a rule? Who will enforce it? Her Majesty? Please.

But we are talking about the Kerr-Queen correspondence. This is as much an issue as any raised before the Senate Committee on Legal and Constitutional Affairs. I will try to make this as non-boring as possible.

Firstly, the barristers are Anthony Whitlam QC and Tom Brennan. Barrister royalty. But Turnbull, who is as Sydney Bar to his bootstraps as he is anything to his bootstraps (ie nothing he won’t flick for political expediency) is stuck in lock-step with Brandis, for the obvious reason – Turnbull wants to keep his job.

Meanwhile, Brandis is locked in a power struggle with Gleeson, another top flight member of the Sydney bar. It is widely agreed that Brandis would lose this dispute on the merits. It is only political power – institutional hierarchy and backing Turnbull – that is the difference between misleading parliament and not resigning.

But that power struggle pales in comparison to the one in which Turnbull is locked. We might like to think that the fate of our constitutional monarchy over forty years ago, or safeguarding the already wrecked reputation of a dead Governor-General who acted to transfer legitimate sovereign power from an elected government to an unelected conservative party, has nothing to do with Abbott-Turnbull.

But it does. It really does. They really are like this. Why, why are they like this?

Because legacy matters. Incumbent power is the strongest force in the liberal democracies. Conservatives like to posture as the natural party of government, and obscuring the truth of their actual legacy is essential to that.

For instance, Professor David Flint offered the explanation that Kerr classified his correspondence this way to protect the Queen. As though Her Majesty requires the colonial chivalry of a dead sot from another hemisphere, an embarrassment of a representative who could not possibly have caused her anything but exasperation at best.

The classification is to protect Kerr, and Fraser, both of whom, have I mentioned? Are not alive to see it. But again, the bigger project is legacy. Outside of abusing the power of incumbency, lying about legacy – history written by the winners – is the entire conservative armoury.

This is because conservatives can not compete on the merits. Their policies and practices are abhorrent on any decent human measure. That leaves abuse of incumbent power to perpetuate meritocracy mythology, the biggest lie of liberalism, and to construct false legacy.

This in turn founds the kind of façade that projects, for example, an image of someone like Malcolm Turnbull as a credible figure of political leadership. Yet the evidence of his leadership – of the Australian Republican Movement (ARM), of Her Majesty’s Loyal Opposition, and as Prime Minister – show that he is anything but.

Speaking of the ARM and Prof Flint – best known for heading up the group Australians for a Constitutional Monarchy – Tony Abbott updated his register of interests this week to record his appointment as a patron of the Australians for a Constitutional Monarchy. Turnbull and Brandis are going to ask the palace. Abbott is flexing his monarchy muscles. But it was all so long ago? Don’t believe that line.

We may want to think our leaders are not as engrossed in their own ego struggles while collecting huge salaries on our coin to run the country. But the evidence is available. Who was proclaiming victory at the NSW Liberal Party convention today? Abbott, and also Turnbull. Who was collecting big bucks to run the country and New South Wales while plotting and scheming over internal party politics?

In contrast, who drafted a decent bill, negotiated cross-bench support, governed a policy area competently, passed a budget? Anyone? Or did the ruling party faff about and accidentally vote with the Opposition to call itself to account? The Liberal Party call itself to account? Are they joking?

This government has not yet passed a budget. Now check out the deficit. The one that was a disaster at less than a third of the size. But there is plenty of time and resources to protect legacy and party room numbers. Of course there is.

There is a take-home message here.

The Archive Act was passed in 1983. What does that say?

It was the year Labor regained power from Fraser, the day that government was finally won back from Kerr’s cur, a little over seven years after Kerr wrote to the Queen and sought advice from Anthony Mason and then did what no Governor General ought to do.

Conservatives: the natural party of government who create constitutional crises to seize it.

An Archives bill may seem a strange priority, but Labor was on to it. Immediately. They won government, they moved on legacy. Labor did this legitimately. It is how government is supposed to be done: win an election, pass a bill into law. Of course Labor had one eye on legacy and why not? What political party does not, especially after a bruising like that?

Here is the thing: the archives law governs all official documents and when they are released. This is how law is supposed to work: all equal before it, nobody above it. It is the most fundamental principle of democracy, the rule of law itself, a government of laws and not of men.

In contrast, tricky and inaccurate classification of a particular set of documents, which will reveal (yet again) the character of one man, does not uphold the rule of law. It protects an individual. This is the difference between the two major parties. Social democratic ideology, by definition, places the social good above the individual benefit. Conservatism, and its bastard offspring neoliberalism, does not.

There is no reason to ever agree with conservatives like Abbott or Brandis who wax lyrical on convention and tradition – which is always, and only, self-serving. That is the individualism coded into their own founding ideology. On the other hand, the passing of the Archives Act 1983 (Cth) was smart, and it was timely. It is legitimate, and it ought to be obeyed by the incumbent Commonwealth government.

There is every reason for the Federal Court to grant the orders sought by Professor Hocking; and there is every reason for Labor to show that it is committed to social democratic principle which, on the historical record, it has been prepared to uphold.

I can’t sleep. I blame Turnbull. I am only half joking

Dear Diary,

Today I reviewed the Learning Guide to the compulsory first year Torts unit so the unit I am running over Summer School – Advanced Torts and Civil Wrongs – will not duplicate earlier content.

Then I liaised with the first year unit co-ordinator so the advanced unit will be interesting and fit the expectations and interests of the elective class.

After that I worked with the faculty administrator to book the Moot Court for oral presentations from 4 January 2017. This was very time consuming because the university administration and faculty staff are not in agreement as to whether we should return to work on 4 January. As a casual employee, this is of no moment to me: if I am there I am paid, if I am not, there is no income to feed my children. But I can not finalise the assessment requirements for the unit I am running until these details are sorted by those who enjoy holiday pay and sick leave and long service entitlements and what-not.

Of which I can only dream, but whatever. No doubt all the meeting time spent on whether or not 3 January is a paid leave day or something has been an efficient use of education resources. But I was talking about me and what I did today.

Dear Diary

Today I tutored for five hours under the ITAS program (Indigenous Tutorial Assistance Scheme), a job that brings with it the joy of working with a Gamilaraay woman who is going to be a top lawyer one day. This is the program that Tony Abbott promised to abolish as part of his commitment to Aboriginal and Torres Strait Islander people under the Indigenous Advancement Strategy (IAS) that saw millions of dollars allocated to white organisations to perpetuate colonial and charity-based models to “help” Aboriginal people. I didn’t really have the time for this job but an auntie asked me and the student is great and now it is not a job but a human relationship and besides here is a Gamilaraay woman future law graduate who is committed and awesome and when my kids come in from school they recognise immediately that we are working and studying and that matters and what if the funding is cut before she graduates?

In the hours before and after ITAS tutoring I marked 10 property law assignments on the scope of Native Title after Akiba v Commonwealth (2013) and I’m happy to say that most of my students seem to have a comprehensive grasp of Aboriginal and Torres Strait Islander peoples’ rights and interests in land and sea including for trade and thus commercial purposes under the NTA 1993 (Cth) as amended. Makes ya proud that does.

Like every other day, I am also responsible for three lives – my two teenagers and I – my oldest offspring lives independently – our food, our housing, our moral code, our education and health. Where would we be without endowment and Medicare I hate to think. Today, that meant little more than cooking dinner: my kids are pretty independent these days. It so happened that one teen offspring arrived home with not one but two friends, who simply had to stay mum, and can we have some of that stew? Well, duh. Why would I make a pot of stew if not for people in the house to eat it?

This is my way of saying that for the past 25 years I have done paid and unpaid work, I have paid my rent or mortgage and taxes, done what my employer expected, conformed to what society demanded – singularly, in my case, but that is not ignore two-parent families – taken responsibility for the welfare of human beings I brought into the world….

Imagine then, my joy, when I heard about the second reading amendment today.

That my efforts in the paid work sphere, which net considerable tax receipts for the federal and state governments these days, me not being in a position to off-shore my tax liabilities, and of a disposition that I would not wish to, given that I think universal education and health care are universal goods, so I end up contributing to the half-million-dollars-plus per year, in salary alone, not to mention expenses and costs, to a bloke with over $200 million in assets, who to all intents and purposes appears incapable of organising a piss-up in a brewery.

Imagine my joy, by which I mean imagine my incandescent rage, as a person who nets less than 20% of the Turnbull public purse remuneration, when I hear Christopher Pyne refer to “a series of events that led to this outcome and it is a pity”. That would be the same Christopher Pyne whose judgement is so meritorious that we not only pay him a 6-figure salary but also sign off on his authority to employ, on a $150K pa salary, a senior ‘innovation’ advisor who lacks the insight or judgement on whether or not to strip to his dacks and insult the flag and thus the nation of Malaysia when out and about with his equally expensively remunerated mates.

Have I mentioned? Reward for merit is the most desperate lie of liberalism.

The “series of events” Pyne referred to was a proposed amendment to a second reading speech on a bill in the House of Representatives. The “outcome”, the one which “is a pity” was the vote that saw the government vote for an Opposition amendment to its own bill.

A vote. In the House of Representatives. That would be where the party with a majority forms government. Not to labour the point hur hur but if voting in the House of Representatives on their own Bill is not their day job, why am I sending a third of my income to the ATO to accommodate these people in Canberra and remunerate them to the tune of at least five times my annual income when I can competently perform the tasks entailed by my job yet they can not competently say ‘aye’ or ‘nay’ on cue?

What. Is. The. Point. Of. The. Turnbull. Government?

Today, Malcolm Turnbull lectured us in front of the Singaporeans on the rule of law.

Today, Malcolm Turnbull conceded a position on the NBN Committee to Pauline Hanson – because she asked him to.

Today, a former Solicitor-General – utterly tastelessly – compared the current Solicitor-General to a dog on a leash.

Today, the Attorney-General doubled down on his misrepresentation of advice from the Solicitor General with respect to laws that embody the bigotry of this government: the Australian Citizenship Amendment Act 2016 and the proposed Bill on a marriage equality plebiscite.

Imagine being a good lawyer – an impeccably-credentialed, beyond-reproach, top of executive government lawyer – and see a man like George Brandis misrepresent your legal opinion on what a majority of the High Court would do with regard to a possible future constitutional challenge to a bill as being advice with regard to a different, later version of the bill (a grossly xenophobic and racist bill).

As though Solicitors-General go around giving advice on what the High Court might do in its original jurisdiction lightly. As if such legal opinions are the playthings of the Attorney General. Brandis is abominable.

The Turnbull government made history today because no government in the history of federation – a very short history, a mere 116 years – voted against itself in the house where government is formed.

In the words of the leader of the House… what a pity.