Yesterday I went to March Australia (Sydney), an event which began in March 2014, six months into the Abbott government. The movement was established to mobilise against the destructive policies of a newly-elected Coalition government and the dishonest Liberal Party campaign.

In September 2013, Tony Abbott cruised to victory on a slew of lies (such as no cuts to public broadcasting, and not butchering Gonski, NBN and the NDIS); and his trademark aggression, misogyny, racism, religious bigotry, homophobia and climate denialism.

The line-up this year began with an acknowledgement of country by Shaymaa Abdullah, an Aboriginal and Muslim woman, a single mum of three and midwifery student. Shaymaa spoke eloquently about the domino effects on nutrition and mental health caused by housing inaffordability in Sydney; and by government dismantling the welfare safety net.

Next, Aboriginal man Daniel Taylor from Kunnunurra spoke of his life under the oppressive cashless welfare regime. He read out a long list of government agencies with access to his personal details through the scheme. He described the humiliation, the daily hardship, not of being poor but of the system imposed by government on the poor, in violation of fundamental human rights.

The following speakers spoke on cuts to penalty rates for the lowest paid and most insecure workers; on the continuing expansion of fracking in Queensland and NSW, and the inherent risks to food and water supply posed by this destruction of country and obscene pursuit of profit; cuts to university funding and increases in the cost of degrees through fee deregulation; and the ongoing horror that is our immigration detention policy.

These critical issues, which go to the heart of well-being in community, and to who we are as a nation, are rarely addressed or debated in good faith by the political leadership and those who report on policy and government politics. Instead, a deeply conservative, woefully inept, morally bankrupt government goes the same rounds on the pet obsessions – tax cuts, free speech, attacking unions – of the elitist few.

The Coalition is no better on economics, or science and technology, or education, or foreign affairs, of course. They invented a budget emergency in Opposition, and then promptly created economic malaise in office. They sabotaged climate policy in Opposition and destroyed any meaningful action in office.

The Liberal Party pre-selected, disendorsed, and then appeased Pauline Hanson in 1996; and re-empowered her twenty years later. It falsely conflated asylum seekers with an ostensible terror threat under John Howard in 2001; and hyper-militarised our response to people fleeing persecution ten years later.

This is from the Sydney Morning Herald letters page, 18 September 2001:

The parliamentary secretary to defence Minister Peter Reith, Peter Slipper, said today: “There is an undeniable linkage between illegals and terrorists and it is absolutely vital in my view to ensure that we don’t have illegals entering Australia inappropriately because given the fact that some of those people come from the country that is the centre of terror, I would be particularly concerned if those people were allowed to enter Australia.”

Have we shifted from this position, a full fifteen years later?

That our federal government prefers to raise, over and again, discussions which cause demonstrable harm to identifiable communities – marriage equality and LGBTQIA people; 18C and Aboriginal people, Jewish people, Muslim people, all people of colour – demonstrates a paucity of vision.

It also showcases a hegemonic bigotry that has prevailed for centuries.

The cultural backwardness, the stagnation, the absence of innovation, the dearth of ideas or solutions or creativity or competence – these are not mere embarrassments. These are the inevitable result of abuse of incumbent power by conservative elites; and of the moral vacuum in which neoliberalism operates.

A potted history of racism

The ‘debate’ on s. 18C of the Racial Discrimination Act 1975 (Cth) and racist Australian values more generally has been thoroughly covered by Aboriginal journalists and writers such as Amy MacQuire here and Luke Pearson here. It is tedious and exhausting for Aboriginal people to keep educating the wider populace on this.

What I want to add is some history of a white scholarship which contextualises the purpose of those who insist on perpetuating their racist views. How racism is done in Australia is simultaneously a product of a divergence and development in racist thought in England; and a founding feature of the white Australian state.

It is only 170 years old.

This is both good news and bad news: as something so recent, it can and should be reasonably easily dismantled. As a founding principle, coded into our Constitution, racism is constitutive of the laws, culture, and society of the federated Australian nation.

So.

First, race is not a real thing. It is a social construct, made up by white men who invented a hierarchy of humanity and placed themselves at the top. Less well known is the historical fact that the odious pursuits of poly-genetics, phrenology, craniology and eugenics were prompted and accelerated by the English in the wake of their ‘empirical’ observations of Australia – of First Peoples, of native flora and fauna, of country.

The English refused to see this continent, her islands and Peoples and languages and law, as simultaneously diverse and integrated; a cosmology and a reality; physical and metaphysical. Their eyes and ears did not transmit to their brains that they were looking at, and being told of, the oldest and most successful societies on earth.

As Kombumerri/Munaljahlai woman and senior research fellow at Charles Darwin University, Dr Christine Black (2011), writes,

But then I ask how can people who come from such young cultures as those of Europe comprehend the sophistication of a continuous culture that goes back more than sixty thousand years? To be truly “of the great southern continent” a newcomer needs to engage with the ancient history of the continent through the intellectual traditions of one or more of the two hundred clans in language, song, dance, and localized common law. Otherwise, newcomers are forever grafting themselves onto a landscape about which they have no real historical understanding, let alone a sustained relationship with, other than as a pit from which to extract resources to sustain the consumer lifestyle of the coast-bound capital cities. In other words, they are devoid of stories from the land. The land is silent, mute to their efforts, belligerent in its continued extremes of flood and drought.

In the fifteenth and sixteenth centuries in the Americas, the colonial invaders perceived First Peoples and their lands as different, but comprehendable through the lens of European norms.

According to De Vattel (The Law of Nations 1760)

though the conquest of the civilised empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them.

This stipulative nonsense rationalised the extreme violence of imperial projects throughout North America, and was taken to even greater extremes here. In Australia, everything seemed so vast, so alien – to the northern aliens – that whole disciplines were dedicated to shoe-horning what they perceived of Indigenous life on the Great Southern Land into the twisted rankings and arrogant imperatives of ‘enlightenment’ theorists.

Before they saw Australia, northern concepts of race were a made-up hierarchy of humanity, but we were still ‘all children under god’. After they reached Australia, the farthest flung continent from their anglo-centric and euro-centric world, the monogenecist (one species) approach was deemed insufficiently racist. Now, said these learned men, a polygenecist view of more than one species of humanity should prevail.

Hiatt (1987) explains: ‘to the European mind, accustomed as it is to positions of authority and hierarchies of command, a state of ordered anarchy poses a set of intellectual and emotional problems’.

The shorthand for this observation these days is white fragility. The vibrancy, wisdom, social order, and above all the survival of Aboriginal people continue to pose intellectual and emotional problems to many a white Australian mind.

Racism is an objective moral wrong

While race is a made-up thing that is universally rejected by every credible institution and thinker on the planet, racism and racists remain, in law and in life. A key problems with the Racial Discrimination Act 1975 (Cth) is that race is simply not a legitimate organising principle for a statute. The problem is not race, because race is not real, so the legislation can not achieve its purpose.

Similarly, racism is always wrong. This is because the harm racists cause is real; while race itself is not. Speech and actions which harm people are moral wrongs, while voicing and acting on opinions which are based on a known falsehood are epistemologically wrong. This is so irrespective of how flowery the arguments, how earnest the white folks, how repetitively we wax lyrical on free speech.

The intellectual and emotional problems white people experience in the face of Aboriginal survival – and excellence – is evident in the huffing and puffing of a racist populism into which the likes of Malcolm Turnbull and Pauline Hanson and Andrew Bolt and Rowan Dean (or whoever) tap – for their own benefit.

Their arguments are always the same, and never specific. Instead, these people drag out big picture abstractions like free speech and democratic principle and balance and Rule of Law to rationalise the same creepy obsessions [content warning] that motivated their phrenologist and eugenicist forefathers.

The politics of a racist polity

Regular guest and Liberal party apologist Niki Savva was asked this week on Insiders (Sunday 9:00am ABC1) whether the Prime Minister had ‘his heart in it’. This was in regards to Turnbull arguing for law reform which would retrospectively safeguard the emotional well-being of a dead man, because he was (accurately, in my view) called a racist – a prospect so absurd that only fellow ideologues could argue it with a straight face.

Savva said yes, and she is right.

It is true that Turnbull put his heart into prosecuting a case that could be seen as arguing to ‘make Australia more racist again’. This is a living example of the ‘emotional problems’ identified by Hiatt, above. Turnbull was emotional, but I doubt it was the emotion of conviction. After all, he made no secret of being mates with a dead cartoonist who produced an undeniably racist body of work.

Turnbull also experiences the emotional confusion that is spawned by the intellectual incoherence of conservative ideology and its denialist imperative. For people like Turnbull, and those who share the same demographic privilege and worldview, this confusion and denialism tend to manifest in aggression and abuse of power. The dynamic can be seen in the conflicted and conflicting Turnbull rhetoric on 18C.

For example:

Political correctness did not silence Bill any more than terrorists did, declared Turnbull, in his favourite faux-gravitas tone, weirdly conflating two fear-mongering favourites of the far right. And indeed, being racist and seen as racist did not stop Leak or his publisher from producing and publishing racist material.

The suggestion those people who support a change to 18C are racist is deeply offensive, Turnbull told the Parliament, simultaneously trolling himself, the current wording of the section (‘insult or offend’), and the Australian people.

In sum, what was perceived and accepted on Insiders as a personal and political prime ministerial emotion over commitment to free speech and legislative reform was in fact situated in two other places entirely.

One is grief at the loss of a friend – always an emotional moment, no matter who we are or where we work. The other was classic triumphalist Turnbull, the ‘conviction’ of lording it over former colleague Cory Bernardi, who campaigned against 18C for years before deserting the Liberal ship (with an emotional, lip-quivering performance of his own).

Bernardi has rattled Turnbull throughout his Prime Ministership, so what better revenge than to cede to the cause after Bernardi left the Liberal Party, and introduce the changes in the Senate, where Bernardi sits? This has the twin Turnbullesque benefits of getting under Bernardi’s white skin, and avoiding a vote (in the lower house) on the obnoxious thing himself.

We know this is how it will play out, because Nick Xenophon, in the fine tradition of two-faced conservatives masquerading as moderates, has declared he will support the procedural but not substantive changes in the bill. We know this also because Turnbull represents the seat of Wentworth, and his constituency has a significant proportion of Jewish voters.

Every time this debate is dragged out again, Jewish community groups put in hundreds of hours defending the law as it stands; Jewish and Muslim and Aboriginal leaders stand side by side to argue against any weakening of the provisions. Nevertheless, this is where the Orwellian nonsense Turnbull sprouted about strengthening the act – by weakening it – was directed. As if such incoherent rubbish would be palatable to Jewish or any other intellectual traditions.

The disproportionate impacts of racist ‘debate’

It can not be overemphasised that the legacy of nineteenth century polygenetic racism lives on in Australia sui generis. This is because of the twin phenomena of First Peoples here inspiring white science to invent a polygenetic humanity; and because this invention was – and still is – codified into the Australian Constitution.

This is not to minimise or obscure the racism directed at African Australian communities, Jewish communities, Muslim communities, Arab communities, Chinese and Vietnamese and Indian and other Asian Australian communities, against all people of colour.

It is to point to the status of Aboriginal people as the First Peoples of this country, to their specific rights and interests as First Peoples. It is to underscore the intellectual dishonesty and scientific bastardry used to rationalise generations of laws and violence on the black body by the Australian polity – the white state and society – and which continues to be so used.

This is evident from the ‘killing that was the political economy of Australian settlement’ (Davis, 2016) as described by Cobble Cobble woman Megan Davis, Professor at Law and Pro Vice Chancellor at the University of New South Wales.

It can be seen in the material connection between harmful stereotypes of Aboriginal people (such as those depicted in cartoons published in The Australian) and medical neglect, as articulated by Kamilaroi woman and barrister Louise Taylor on the death of Ms Dhu.

It has been said over and again, year after year, such as in the work of Tanganekald and Meintangk-Bunganditj woman Irene Watson – Professor at Law and Pro Vice Chancellor of Flinders University – who writes of laws which ‘construct all aspects of our being, even the construction of our death and the displacement of our bodies’ (Watson, 2005).

This tradition, the jurisprudence of colonisation, continues today – by Turnbull and the Liberal Party, Hanson and Bernardi – and backed by the law-making power of the Australian Parliament. The magnificent self-sufficiency of First Peoples here so confounded the invaders that whole new sciences were invented to rationalise cruel and violent laws. The young culture of the aliens is still beset by the intellectual and emotional problems posed by our failure to comprehend the sophistication of a continuous culture that goes back more than sixty thousand years.

Meanwhile, in the real world, we are talking about the harm caused by racists, and by dehumanisation of welfare recipients, and indefinite immigration detention, and the increasing cost of degrees, and penalty rate cuts, and housing insecurity, and CLIMATE CHANGE.

Conservatives really do fiddle as the world burns.

 

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.