All posts by oecomuse

About oecomuse

On unceded Darug lands. I write about law, economics, politics, and ethics ( I also lecture and do research on these subjects for a living). Single mother, singer and strummer and happy camper, non-theist. Also furious feminist who thinks the people running the planet are doing a terrible job.

Marriage equality and Joycean humility: the week that was

Nobody with ears could mistake the words of recently re-elected Nationals Party leader Barnaby Joyce for stirring speechmaking. But in a close run thing, the indulgent nonsense from Prime Minister Malcolm Turnbull, when the House of Representatives eventually reconvened to debate marriage equality, was the bigger oratorical mess.

Joyce first. The footage of his breathlessly anticipated return to Canberra shows Barnaby muddling through a poorly-conceived and grossly misleading analogy on eligibility for the national parliament.

“We threw ourselves under a bus”, said Joyce of his decision to stay on in cabinet and the parliament until disqualified by the High Court of Australia. “Matty Canavan came out the other side, I got stuck under there for a little while.” The camera zooms in briefly on that footy ruck neck and his lanyard strap. VISITOR.

That VISITOR stamp was a momentary reprieve from an otherwise grim reality. The thumping Joyce victory is disappointing and dangerous. I lived and voted in New England from 1989 to 2002, and visit every year to see family and stand with community against coal and coal seam gas mining. I have written at length that Joyce talks the farming talk while walking the mining walk.

The Joyce victory is a betrayal of traditional custodians and their country, of farmers and food production, and of looming climate catastrophe. It is also telling of a hyper-masculine culture that many voters knew why Mrs Joyce and their daughters were not on the campaign trail, and voted for him anyway.

That reason was kept strictly under wraps until Joyce was safely back in Canberra in record time. As ABC political editor Andrew Probyn told Insiders, the fastest turnaround from by-election to swearing in was previously 11 days. Joyce took four days. That timing was essential to avoiding the referral of several Coalition MPs to the High Court for potential breaches of the Constitution, but Joyce had other matters on his mind.

While preaching on ‘traditional marriage’ – whatever that is – to the parliament, Joyce announced publicly for the first time that he is currently separated ‘so that is on the record’. Presumably he meant ‘on the record as of this exact moment’. Joyce later told radio 2GB that he disclosed his marriage breakdown – widely tipped to be caused by his adultery – so as not to appear hypocritical. While a worthy goal, this is logically unattainable goal, given events and the passage of time.

“Some Nationals also feel that locals may have voted for Mr Joyce on principle,” reported the ABC, “or in sympathy because they felt the High Court citizenship ruling had been harsh.”

What principles? Joyce tracked across the electorate – was there was a New England pub he did not visit? – telling his constituency he did not understand why a fine bloke like his good self was disqualified from the parliament. This actively encourages ignorance of, and disrespect for, the Constitution. Which is his call, except that Joyce votes on laws that govern this country, and collects a hefty parliamentary salary, under that same Constitution.

But the by-election was not about the Constitution, because Joyce is apparently some kind of unreconstructed retail politics genius. “If you want to focus on the person in the weatherboard and iron they will give you the grace of their vote,” he said. That is code for the poor white rural (Australianised rustbelt) vote, as Joyce told Fairfax here.

The reality is that New Englanders know which side on which their bread is buttered. The cache of having the Deputy Prime Minister as the local member is real. Government largesse rains down upon New England at a greater rate than in any other electorate. At the same time, you could count the number of New England farmers who support government handouts on no hands. Agrarian socialist entitlement is as intractable as it is invisible to its beneficiaries.

Anyway, it worked. A victorious  Joyce said he is “completely and utterly humbled”, as shown here with an equally humble Prime Minister. You can practically smell the humility.

 

If the Joyce victory speech was a clatter of misplaced triumphalism and cringe-worthy hypocrisy – which it was – nothing can top the way Turnbull carried himself during the passage of the bill drafted to legalise marriage equality.

The highlight of the Turnbull “gay marriage” speech – such a staunch supporter, just ask him – was this piece of patronising gibberish:

“Co-dependency is a good thing. If we believe two gay people are better off together than living alone, comforted only by their respective cats, then why should we deprive that relationship of equal recognition?”

The question, recall, is equality before the law – specifically sections 5 (definition of marriage between a man and woman) and 88EA (recognition of overseas marriages not between a man and woman) of the Marriage Act 1961 (Cth) as enacted under s. 51(xxi) of the Australian Constitution (the marriage power). Since 2004 – the date at which ‘traditional marriage’ was defined by the Howard government – and until Friday 8 December 2017, that definition discriminated against same-sex couples.

It is not about religion, or sex education, or de facto relationships, or cats. It is fundamentally not about whether “we believe two gay people are better off together than living alone”. They can do that now, without scrutiny by the entire electorate. Yet having put thousands of people through an unnecessarily protracted and intrusive survey process, the Prime Minister endorses legal recognition of rainbow couples getting married by grossly insulting single gay people, complete with cat schtick. Classy, huh?

Turnbull then cited David Cameron, the bloke who brought on Brexit. That still-unresolved matter has seen an increase in hate crimes, cost millions, and was essentially designed to outsource petty internal differences between two white conservative men who attended Oxford University.

Sounds familiar, doesn’t it?

“And for those to see this [sic] as an ideological issue”, Turnbull brayed in that paternalistic hector that he imagines portrays gravitas and great moment, “recall British Prime Minister David Cameron as he spoke for marriage equality six years ago: ‘To anyone who has reservations, I say Yes, it is about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

There it is. Turnbull outs himself as a conservative by quoting an actual Tory.

I mention this, because one of the most irritating features of the Turnbull government years is a press gallery which insists on the existence of moderate Malcolm. This is not true. Turnbull is an ideological chameleon, a man of ambition rather than loyalty, who once reportedly said “I could never succeed in the Labor party as it would be unforgiving towards someone who had been a successful businessman”.

The idea that Turnbull may have joined the Labor Party is ridiculous. Turnbull married into blue-blood Liberal heritage, as he reminded us in the second reading speech extracted above. As we watch Trump unravelling live on his twitter stream, the proposition that being a businessman somehow trains an individual for public life is exposed as the self-serving lie it has always been.

It does not matter how enthralled our fourth estate remain by “the Prime Minister held court as he regaled all and sundry with witty anecdotes about his days as Kerry Packer’s lawyer”. Whatever, Phil. This is a lawyer who as a politician basically concedes that his team are announcing a new legislative package designed to criminalise and otherwise control their political opponents (Senator Sam Dastiyari and GetUp! if you were wondering). That is not democracy but authoritarianism, so at least Turnbull himself has finally put to bed the myth of moderate Malcolm, given myriad other examples, including the shabby lonely cat dig at single gay people.

The bill reaches the House of Representatives

Tone-deaf as that verbal imagery was, the next day Turnbull’s performance was substantially worse. As those carefully watching the procedure would have noticed, Turnbull was not responsible for commissioning the drafting of ‘the Dean Smith bill’. It began legislative life as a private members bill, introduced in the Senate.

After the postal survey results were announced, Turnbull assigned passage of the bill through the lower house to himself. In the normal course of events, a bill is tabled (first reading), debated (second reading) and passed (third reading). In this case, the second reading was interminable. Every MP and their dog wanted a position on the record. The conservative derailment exercises in pre-defeated amendments went on and fucking on.

Even Tony Abbott, who campaigned against his own sister and delayed the reform for as long as politically possible, whose electorate returned a 75% Yes in the postal survey, who left the chamber so as not to vote on the bill – and whose ‘traditional marriage’ hypocrisy is as well-kept a secret as Joyce’s – got his mug on the news as he banged on with his bigoted bullshit.

The debate was also derailed by that s. 44 disqualification vote which Joyce snuck back in just in time to defeat. But eventually, even all the boring bigots had had their say and the House was ready for the Prime Minister to move that the bill be read a third time so that it could be passed into law, pending the signature of the Governor General and the clock striking midnight.

Naturally, given the suspense and patience of those in the public gallery, the rainbow community, and everyone else watching at home, the Prime Minister rose and moved that the bill be read for a third time so the speaker could bring on the vote and the thing be done.

Just kidding. Turnbull rose to move the motion, but instead started shouting about what a great day it was for Australian democracy. He boasted about the shoddy postal survey which cost $80 million and saw a swift rise in mental health stresses for LGBTQI+ people. He waved his arms and thumped his tub. When he had exhausted his misplaced triumphalism, the prime minister sat back down to what he imagined was appreciative applause for himself.

The Speaker was thus compelled to ask the Prime Minister to rise again and move that the bill be read for a third time, without which the vote can not be called.

This moment has been edited out of every inch of footage I have seen of the vote. Why? Either it is mere procedural glitch, of no shame or moment to a prime minister who, naturally, was feeling exuberant that marriage equality – or gay marriage, as Turnbull, in the language of the No campaign, said consistently throughout. If Turnbull failing to move that the bill be read a third time is a trivial and meaningless oversight, it surely can be shown. After all, that moment is as accurate an account as any of what actually happened in the chamber in the moment the bill was passed.

Maybe commercial television has the clip on repeat, but in the mediascape I inhabit – the Guardian, Fairfax, the ABC – nobody is showing the clip of the Speaker reminding Turnbull to do his actual job. Nobody is commenting on the fact that Turnbull rose to perform an essential step in the passage of a bill into law, but became so distracted by his own vanity that he failed to perform this simple task.

At last

The final step in making a bill into law is the Governor General giving royal assent. Then all that remains is for the clock to tick past midnight on the commencement date. So off to Yarralumla went Turnbull, godspeed, with his Attorney General George Brandis. Interestingly, given nobody threw brickbats at Turnbull for fluffing his final lines, Brandis got all sorts of feathers for his cap for being visibly moved by the reform. This is a simple manifestation of inherent bias to incumbent power: individualise and heap praise on the good (you are quite emotional, Senator), while ignoring or universalising (it could happen to anyone!) the bad.

While Dean Smith, the first openly gay Liberal member of the parliament, received a gift of the pen used by the Governor General, he did not get to share the limelight with the Prime Minister on leaving Yarralumla. In a piece to camera framed by the French doors of Government House – and presumably recorded by the PMO media team – Turnbull again sang his own praises, alone.

The strategy here is obvious enough. Just in case media had mischievously broadcast historical truth and shown him messing up procedure the day before, Turnbull wanted to command his own legacy and take credit for the new law no matter what mistakes he made along the way. Any media advisor knows that the news of today supercedes the news of yesterday, so it was a sure bet. Right on cue, the piece-to-camera was broadcast far and wide.

The most lasting image, by AAP photographer Michael Masters, must go to Labor MP Linda Burney and Nationals MP Warren Enstch; and the final word to Ms Burney, who lost her son Binni Kirkbright-Burney during the protracted campaign. She spoke incredibly eloquently and courageously:

“I support marriage equality as someone who has and has had loved ones who identify as LGBTI,” she said. “To them marriage equality would mean so much. I honour these people, in particular my late son, Binni.”

 

*This is an updated account of marriage equality debates and the return of Barnaby Joyce to Canberra following a by-election in the seat of New England. An earlier version was published by Independent Australia on Wednesday 6 December 2017, before the Marriage Act Amendment (Definition and Religious Freedoms) Bill 2017 (Cth) had passed the lower house, and before Joyce was sworn back in as Deputy Prime Minister.

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The dots less joined

As someone who asked the question of whether British-born Tony Abbott is eligible to sit in the Australian Parliament back in 2014, I feel the pain of punters who are tired of the ‘section 44’ story. In those days, we who raised the s.44 question were mocked as “birthers”, a nasty distortion, as I explained here.

The issue is not the foreign-born, but renunciation of foreign allegiance. Abbott never disguised a strong sense of allegiance to England. But those who backed Abbott into office studiously ignored eligibility questions. It is fine for Abbott to tweet a renunciation screenshot three years after those questions were raised, yet now we see the entry papers, not of an MP but his mother, published online [deliberately not linked]. We see the Prime Minister demanding Shorten prove his renunciation, which Shorten did.

While the press scour parentage records across the parliament, Turnbull announces ‘new’ disclosure rules that replicate the disclosure statement all federal parliamentarians have already signed, making his decision as redundant as his leadership. The major parties failed, as the major parties were always going to fail, to resolve the problem of candidates failing to renounce.

This is because both majors want what they always want. It is not rocket surgery. Labor wants to force the Coalition to a general election so it can win government, and the Coalition wants to stay in government. That is the point of the existence of these organisations, and thus that is what each will pursue.

meanwhile, we all have to watch the routine hypocrisy, a function of the inherent conservatism of our political and media institutions. But the direction reporters and politicians have taken this story since July 2017 is increasingly ugly. There is the law, sure, but there is also the messaging.

The legal question, and its answer

Our constitution disqualifies from the federal parliament anyone with ‘acknowledgment of allegiance, obedience, or adherence to a foreign power, or [having or entitled to] the rights or privileges of a subject or a citizen of a foreign power’. Nothing prevents any Australian born in any country, or whose parents or grandparents were born overseas, from nominating. However, a nominee must take all ‘reasonable steps’ to renounce their foreign connection(s). This test is from Sykes v Cleary [1992] and was upheld by the High Court in the ‘Citizenship Seven’ case.

Attorney General Brandis led the government response by claiming the Citizenship7 case is a ‘strict’ reading. This is the Joyce (and Nash) defence. It downplays the cornerstone of common law systems: doctrine of precedent. In reality, the High Court applied the law – including case law – to the facts before them.

Similarly, Turnbull repeatedly implies that the correct constitutional reading was shrouded in mystery until last month. This is the Parry (and Alexander) defence. But the case law is 25 years old. In reality, the government was hoping the High Court would overturn precedent (which it has full authority to do) to save Barnaby Joyce.

The political messaging, which is dangerous and wrong

That some nominees did not do their homework is a straightforward proposition. But the Coalition response is to make it about being Australian. This is underpinned by white nationalism, and Barnaby Joyce intends to fan these messages into flames, which I will come to in a moment.

But first, the pivot on which public debate turned from a semblance of legal logic (‘strict’ constitutional reading) to politically expedient ‘passion’, was the prime ministerial defence of Josh Frydenberg.

Now I am the last person on earth to defend Frydenberg. I have zero regard for his politics. Energy policy is a mess. I merely note this: there has never been a Jewish Liberal party member of the House before. Turnbull and colleagues joined a party which had never endorsed Jewish candidates in safe seats. This supports the widespread view that the Turnbull display was invoking the Holocaust for politically expedient purposes. It also suggests the party has not thought through the implications of the Israeli law of return whereas Labor probably has.

My own view of Israel is a rogue nuclear state that daily violates Palestinians in myriad ways such as water supply ‘apartheid’; and systematically commits war crimes such as collective punishment. Nevertheless, Israel is a sovereign nation and, to most of world Jewry (and many others), it is the Jewish homeland; and the relevant discussion here is not international law but Australia-Israel relations (my research on Australia-Israel relations here).

Israeli Law of Return confers entitlement, on Jewish people, ‘to the rights or privileges of a citizen’ of Israel, which is a ‘foreign power’ from the Australian perspective. Thus on that ‘strict’ s. 44 reading, our Constitution would demand prospective Jewish candidates renounce allegiance to Israel. I strongly suspect this is part of the current major party discussions.

It is unthinkable that Parliament contemplate putting the High Court in the position of reading down s.44 to accommodate right of return. Nor could any reasonable person contemplate a process that would effectively disenfranchise Jewish candidates.

A competent leader would have quietly brokered a compromise that the public could accept, if these genuinely sensitive issues were explained properly. But bringing the public along is a Prime Ministerial skill we have not seen in a long time.

New white nationalism

By mobilising the Holocaust defence, Turnbull has ensured the ‘citizenship debate’ –until now, a paperwork problem – turns entirely on emotional responses. This is the preferred setting of most campaign managers – political, military, advertising – who know we are less individualist than we are taught to believe.

Here is how that is panning out.

In Tamworth, Turnbull declared ‘I don’t know anybody that’s more Australian than Barnaby Joyce, I don’t know any electorate more Australian than New England’.

Not Lingiari, home of the Gurindji walk-off and historic handful of sand. Not Canberra, named for Ngunawal Peoples ‘meeting place’ and seat of national government. A seat that literally has the word England in it being contested by a man who has pocketed millions of public dollars for which he was not eligible, is the most Australian.

Meanwhile, Joyce told Sky News ‘how people see it is if you’re born here you are an Australian’. But we deport refugee babies. What jus soli is this? On Insiders, Mark Kenny sang from the same songsheet, asking ‘what could be more Australian than Barnaby Joyce?’

Oh I don’t know. Fanning white nationalism for political gain?

In the Daily Telegraph anonymous ‘cabinet ministers expressed concerns MPs of Greek and Italian (sic) could be the first under threat…’. But Canavan was cleared of Italian citizenship rights and Xenophon was cleared because he renounced Greek citizenship rights. So why the ‘fears’ about Italians and Greeks?

Then there was Craig Laundy, telling ABC radio he wants a referendum because ‘in my electorate I’ve got 320 nationalities represented. If we trade with those 320 countries, Australia grows.’ He made up 140 countries to defend the legitimacy of MPs of British descent. The AM reporter commented ‘there are concerns the strict ruling would make it harder to attract multicultural candidates in the future’.

Concerns about ‘multicultural’ candidates? Why? Every disqualified MP is a white person who failed to check their connections to Commonwealth countries.

Finally, there is the book Joyce is writing on ‘the social opprobrium attached to poor white people in Australia’s towns and regions’. Peter Hartcher quotes: ‘A lot of it will be politically incorrect – I want to shock… To give greater economic and personal advancement to the people in the weatherboard and iron in the regional towns.’

Politically incorrect? Weatherboard and iron? Poor whites?

Joyce is unashamedly channelling the Trump narrative, even though Trump was bankrolled by rich whites and elected by comfortable whites and the poor white rural rust belt myth has been debunked again and again including by the Washington Post. Hartcher in the era of Trump called Joyce’s project ‘respect for the people who live outside the big cities and feel overlooked.’ The headlined shouted ‘shrewd tactic of Barnaby Joyce’ but this is not shrewdness. It is dangerous.

This is how contemporary Australian white nationalism works: in the name of ‘equality’, we reject the consensus-based proposal for an Indigenous Voice to Parliament. In the name of ‘multiculturalism’, we defend white people who fail to do due diligence as true Australians mate. In the name of investigative journalism, we publish refugee documents of a Holocaust survivor. The debate will get anti-Semitic, because it always does. The political classes and political media will not, because they can not, put it back in the bottle.

Just don’t say nobody told ya.

 

Government rejects Voice to Parliament

The federal government response to the Referendum Council proposal for a constitutionally-enshrined Voice to Parliament was delivered in the form of a joint press release. The statement is attributed to Prime Minister Malcolm Turnbull, Attorney-General George Brandis, and Minister for Indigenous Affairs Nigel Scullion.

The government decision

This week we learned that the federal government decided to reject the consensus of Aboriginal and Torres Strait Islander Peoples who participated in 12 regional dialogues and the 2017 Uluru Convention. That consensus was for an Indigenous Voice to Parliament, to advise on legislation affecting Indigenous Peoples; as well as for Makaratta, a truth and reconciliation process.

Perhaps the best known Referendum Council members are Megan Davis and Noel Pearson.

Professor Megan Davis was interviewed on ABC radio this morning. The first question implied that the government had rejected recognition, when it in fact rejected a Voice to Parliament and resurrected symbolic recognition. When as experienced and relatively impartial a journalist as Sabra Lane has to be corrected on a basic misapprehension from the very start of an interview… I mean, just imagine how exhausting this stuff is.

Noel Pearson was out of the blocks early. He condemned the dearth of political leadership on 4 August this year and has continued to do so since. Of all the Aboriginal people consulted by government, it is Noel who is called, Noel who gets the airtime. This week, you can hear his exhaustion and frustration, such as in this Radio National interview with Pat Karvelas.

Abridged and annotated: the government statement

Despite Turnbull and Brandis being named at the top of the press release, due to cabinet superiority, only Scullion has been on the hustings defending the Cabinet decision, which was leaked to the Courier Mail. According to Scullion, in an interview on RN Drive, the decision to put out the statement on the anniversary of the Uluru handback to traditional owners was out of “respect”. It happened to be the day the Indigenous Advisory Council meets, he said, and thus the press release went out that day with zero mention of the IAC out of respect for the IAC.

This peculiar claim suggests two likelihoods: first, that cabinet took the decision to reject Referendum Council proposals without consulting the IAC (and definitely without consulting the National Congress of Australia’s First Peoples); and secondly that the statement was rushed out because someone in Cabinet leaked to the Murdoch press.

The government press release goes something like this.

The Turnbull Government has carefully considered the Referendum Council’s call to amend the Constitution to provide for a national Indigenous representative assembly to constitute a “Voice to Parliament”. The Government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.

Translation: the Voice to Parliament proposition terrifies us. We perceive it as an existential threat to white Australian hegemony (institutions). We are projecting our own fear and loathing onto the electorate by claiming, without a skerrick of evidence, that the Voice proposal can not succeed at a referendum, because we are cowards and liars.

Our democracy is built on the foundation of all Australian citizens having equal civic rights – all being able to vote for, stand for and serve in either of the two chambers of our national Parliament – the House of Representatives and the Senate. A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle. It would inevitably become seen as a third chamber of Parliament.

Translation: Despite the resistance, despite respectful political communications over centuries, and the overturning of terra nullius by our highest court, we refuse to concede that Australia is built on stolen Aboriginal land. We refuse to see that not all citizens are equal. Such a concession poses an existential threat to our entire belief system, which is built not on evidence but on ideology, including the ideology of racism. We will express this in terms of a ‘third chamber of parliament’, which nobody proposed, because we are liars and cowards.

The Referendum Council noted the concerns that the proposed body would have insufficient power if its constitutional function was advisory only. The Referendum Council provided no guidance as to how this new representative assembly would be elected or how the diversity of Indigenous circumstance and experience could be fairly or democratically represented.

Translation: the Referendum Council did not do all our work for us and noted concerns rather than set us up for handy political point scoring with the lives of First Peoples. What is wrong with these Black people are they lazy or unprofessional or something.

Moreover, the Government does not believe such a radical change to our constitution’s representative institutions has any realistic prospect of being supported by a majority of Australians in a majority of States. The Government believes that any proposal for constitutional change should conform to the principles laid down by the 2012 Expert Panel, namely that any proposal should “be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums”.

Translation: it suits us to frame the Voice to Parliament as radical, even though it is modest and moderate. Wait there while we condescendingly spell out the constitutional requirements of passing a referendum to the Referendum Council. Also we have some beliefs about what Australian voters will vote for lololol just like we did when we lost 14 seats at the last election and just like our leader did when he messed up the republic referendum but hey we won’t let a dismal trail of multiple failures stop us talking down to First Peoples as though we know more about Australia than they and their 60,000 years of occupation and 230 years of colonisation what would they know?

The Referendum Council said the Voice to Parliament was a “take it or leave it” proposal for the Parliament and the Australian people. We do not agree. The Council’s proposal for an Indigenous representative assembly, or Voice, is new to the discussion about Constitutional change, and dismissed the extensive and valuable work done over the past decade – largely with bipartisan support.

Translation: how dare First Peoples take leadership of what directly affects them and put a proposal that directly includes them. Did they not get the memo? The symbolic recognition thing that First Peoples definitely did not prioritise has bipartisan mainstream political support, unlike the symbolic recognition thing that was tagged into the failed republic referendum and voted down under the mismanagement of Malcolm Turnbull.

We are confident that we can build on that work and develop Constitutional amendments that will unite our nation rather than establish a new national representative assembly open to some Australians only. The challenge remains to find a Constitutional amendment that will succeed, and which does not undermine the universal principles of unity, equality and “one person one vote”.

Translation: blather gargle bargle. More perceived existential threats. Non-binding advice from Indigenous people on legislation that affects Indigenous people would undermine democracy as we know it because we think it will.

We have listened to the arguments put forward by proponents of the Voice, and both understand and recognise the desire for Aboriginal and Torres Strait Islander Australians to have a greater say in their own affairs. We acknowledge the values and the aspirations which lie at the heart of the Uluru Statement. People who ask for a voice feel voiceless or feel like they’re not being heard. We remain committed to finding effective ways to develop stronger local voices and empowerment of local people.

Translation: we have not listened to the CONSENSUS put forward by the Referendum Council, but we have called its logic ‘arguments’, which shows we have not considered it carefully. Whatever, WE will tell YOU how you feel because who better to tell black people how they feel than colonial governments?

Our goal should be to see more Aboriginal and Torres Strait Islander Australians serving in the House and the Senate – members of a Parliament which is elected by all Australians. The Government has written in response to Mr Shorten’s call for a Joint Select Committee, and have asked that the committee considers the recommendations of the existing bodies of work developed by the Expert Panel (2012), the Joint Select Committee on Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Referendum Council report (2017). The Coalition continues to aim to work in a bipartisan way to support Constitutional recognition.

Translation: you should have proposed something else which we also would have reserved the right to reject if it rose above mere symbolism. We will work with the other major political party on ensuring any meaningful change for Indigenous people is killed in committee or otherwise endlessly delayed and sapped of all meaning. A few white people will be given a platform to tell the rest of Australia what will or will not further reconciliation, whatever that is, we do not seem to have much of an Indigenous Affairs policy of which to speak.

Where to now?

It is largely forgotten that Congress put out the Redfern Statement, a comprehensive and widely-supported policy document, for the last election. So while the current government has no real Indigenous Affairs agenda, it could have.

Both Turnbull and Abbott, like Gillard and Rudd before them, continued the Howard era-conceived Northern Territory Intervention. The policy is a disaster and its worst features have been adapted and applied to other areas which large Aboriginal populations. In a coincidence much like the tone-deafness of rejecting the Uluru Statement on the Uluru handback anniversary, Turnbull travelled to Kalgoorlie to announce the imposition of cashless welfare the same week the community was commemorating Elijah Doughty one year after he was killed by a white vigilante.

Meanwhile, the Rudd-instigated ‘Closing the Gap’ Indigenous health and well-being policy has been kept on in name, but all its KPIs have stagnated or gone backwards under the Coalition.

It is strikingly obvious that as Aboriginal and Torres Strait Islanders have reconstituted and developed their structures and forged an increasingly unified voice through their own modes of consensus and respect, it is increasingly difficult for governments to stick to the same old approach. That same-old same-old is victim-blaming paternalism designed to disguise the vicious brutality of the colonial-settler state policies and practices chiefly characterised by mass incarceration and forced child removal.

Nevertheless, Turnbull and Scullion have valiantly continued in this vein. It is particularly galling that the same man who set back Republicanism for decades now presumes to divine – Scullion conceded both to Senate estimates and to Karvelas that the ‘Voice will fail’ claim is not founded on polling – that an Aboriginal-led proposition would fail at a referendum, and set ‘reconciliation’ back decades.

The usual, thanks

When I started this blog in 2013, it was to debrief from the coming tsunami of nasty policy and toxic dishonesty that I was sure would inevitably flow from an Abbott government. Two years later, in 2015, I did not assume that Malcolm Turnbull would be an honest and statesmanlike Prime Minister.

I listened carefully to that first press conference, where Turnbull failed to restore the quantum of funding Abbott had cut from services providing shelter and support to women and children escaping male violence. Turnbull allocated a third of the $100 million funding restoration to advertising companies, presumably companies which benefit from Liberal Party ad-buys. He implied the money was new funding. He sounded smug and arrogant.

I assume the decision to make this grandiose announcement, rather than some other grandiose announcement, was political strategy. Liberal polling probably showed that Abbott alienated women voters, and so Turnbull was despatched to ‘charm’ the swinging voter woman of the (extremely limited) Liberal Party imagination.

The same vibe was on show when Turnbull announced his first ministry, which was in fact a ministerial re-shuffle, given the Coalition government was still in its first term. With great fanfare, he trumpeted Marise Payne as the ‘first’ defence minister, and political reporters duly accepted this as fact. When it was pointed out that Ros Kelly was a junior minister for defence science and personnel a full two decades earlier, the claim was refined to first ‘stand-alone’ defence minister or some such.

Either way, the claim is bollocks. It is designed for headlines, not grounded in fact. There is no single or fully fledged defence minister when someone with the status and influence of Christopher Pyne is also in the field, in this case, as minister for defence industry. The submarine build in South Australia promise was a massive part of the almost-lost 2016 election (my longer thoughts on that expensive nonsense here).

In typical Turnbullesque style – of which the hallmark is extremely poor political judgement – the relationship between Payne and Pyne is reportedly toxic.

None of this bodes well for merit-based economically-efficient decision making in the defence portfolio. But then no Liberal Party appointment ever does. Its members are incapable of redistributing tax revenue for the purpose of providing essential government services. Basic government functions are not what a bunch of private school boy grads have any qualifications, life experience, wisdom, or skills, to do. How could they?

It is against this backdrop that I watched yet another nadir in political reporting emerging this weekend. Does this mark a turning point for the Prime Minister? asked the Sydney Morning Herald, implying that it has faithfully documented that which Turnbull requires a turning point from: two years of ignominious policy failures, leadership so weak it would have been cut down if there were any (male) alternative, and crushing disappointment in the electorate, expressed in the 21 losing polls breathlessly counted by the waiting reptiles.

The ‘point’ was to ‘turn’, apparently, on Turnbull telling a backbencher ‘we are having a political discussion about it. We have a sensible policy.’ That is what we the readership are supposed to see as a turning point in the shabby gutless political leadership of the nation. Here is the context, verbatim, from the front page of News Review:

As shut-downs go, it could not have been more emphatic. Environment and Energy Minister Josh Frydenberg had just presented to the Coalition party room details of the government’s long-awaited energy policy. Flanked by government officials from the energy market regulators, his presentation, while lacking detail, was well-received.”

The party room reportedly applauded this evidence that Turnbull could ‘shut down’ Tony. That is what we are supposed to get excited about. ‘Details’ of a policy which was ‘lacking detail’, but that is okay because it was well-received in the Coalition party room by… the Coalition party room.

This is meaningless twaddle to anyone outside the party room or the parliamentary press gallery. There is no evidence that Turnbull will not continue to bow to Abbottian influence, as he has in this ham-fisted ‘energy’ policy. There is no evidence that the National Energy Guarantee (NEG) will not see increased emissions and increased prices while locking in Australian reliance on coal (a far better and more detailed critique here).

Most of the gallery, to various extents, attempt to not merely report but also to sway political news and audiences. This desire and its attendant practices cuts across outlets: it is standard for Chris Uhlmann or Peter Hartcher or Laurie Oakes or Sharri Markson to insert themselves into the story. They do this not just to safeguard their own access and Insider status, but also to be players, and to appear to be players.

To safeguard access and become a player is self-defining, to a degree. It represents some power over what may become the top story and what may be buried. Any one of these big names can make a poor call with impunity. They do not get the sack. Rather, they tend to justify rather than retreat from the entirely wrong prediction or garbage partisan analysis.

This is what the entire corps, minus The Guardian and The Age did, literally as a body, when endorsing Abbott in 2013.

Anyhoo. If the SMH was weak conformity to a weak government message on a weak government policy, the Saturday Telegraph this weekend was breathtakingly, shamelessly interventionist. The Dirty War on Barnaby Joyce was a grubby and internally contradictory hotch-potch of defo lawyer-edited innuendo and garbled insider gossip.

Now I have no time whatsoever for Joyce, except to write up the many ways in which, on my analysis, he has failed his constituency, himself, the government, the constitution, and the electorate. And if there is one thing I have less time for than the political failures of Barnaby Joyce, it is the ‘private life’ – political reporter speak for ‘sex life’ – of Barnaby Joyce.

But I admit to being curious. Not as to what Barnaby gets up to between the sheets – yuk – but as to why the Telegraph chose to break this ‘story’ – as I said, better described as innuendo – now.

The entry point to media-political player status is the sure knowledge that Prime and other ministerial media staff will pour over who is perceived as having ‘won’ the news cycle of the day. The winner is never the punters. This is an Insiders’ game.

So we can be sure that there is no benefit to either the Australian electorate in general or the voters of New England in particular to the editorial decision that saw sexual innuendo about the Deputy Prime Minister splashed across the front page of the Tele. The article, with a Sharri Markson and Miranda Devine by-line, purported to point to former New England MP and potential by-election opponent Tony Windsor.

But there is no way the collateral damage would not splashback on Joyce, and no way these two players could not know that.

So who is the target?

First, it is worth recalling that the Murdoch press generally is stacked with Abbott defenders who are still cranky that their Tony was supplanted by the hollow conservative pretender who they, hilariously (and harmfully, to the polity) perceive as a leftist and progressive political leader. Of course Turnbull is not left and not progressive and not a leader, but that does not trouble the minds of the political players of the Murdoch press.

Second, Joyce is before the High Court of Australia, along with six senators, on the matter of his capability to be elected or sit in the Australian Parliament under s. 44 of our Constitution. It is possible that the operation of the section will be found by the Court to disqualify him from sitting, from the date of the 2016 election. This would prompt a by-election order from the High Court sitting in its capacity as the Court of Disputed Returns.

Third, and this is key, the government is a lot more bothered by the Joyce constitutional position than it is publicly letting on. Turnbull has been shouty in his support in the parliament, which is unhelpful at best. Why would a High Court take kindly to being shouted at by politicians? Why is the Prime Minister, a qualified and enrolled barrister, breaching (absent parliamentary privilege), the doctrine of separation of powers?

This is a ‘spirit of the law’ rhetorical question: there is no ‘letter of the law’ of the doctrine of separation of powers to breach – it is based in principle, not statute.

But Turnbull also chucked Joyce under the bus outside of the Parliament. Or at the very least, Turnbull trolled Joyce outside of the Parliament. Unless, that is, we accept that the Turnbull political antenna (always badly broken), is so bad that he did not understand that dragging the Joyce properties in Narrabri into the gas debate was a really terrible idea.

Maybe. I have consistently pointed to the lack of evidence to support claims that Turnbull is terribly intelligent. But even I doubt that Turnbull could be so thick as to publicly invoke the Joyce properties near Narrabri during a gas supply presser by accident rather than by disingenuousness.

So Joyce is on the nose and possibly on the way out. The government is sending up the balloon, signalling that he may be cut loose. Is that really a basis on which a pair like Sharri Markson and Miranda Devine would file this?

The popular Nationals leader, who faces being kicked out of Parliament next week over his dual citizenship, has for months struggled with issues that have affected his marriage of 24 years.

That is the second sentence. The first is even more self-servingly interventionist political-reporter-as-player:

Embattled Deputy Prime Minister Barnaby Joyce is in the grip of a deeply personal crisis that has now spilled into public life at the very time he is fighting to save his political career.

But whatever the crisis is, it had not ‘spilled into public life’ via a couple of tweets, but via the Saturday Telegraph front page. The Tele literally ‘reported’ what it was doing by reporting what it was doing, which was to ‘spill’ whatever is going on for Joyce in private – does anybody care? I know I do not – ‘into public life’.

The Tele front page also refers to ‘his dual citizenship’. This is fantastically unhelpful to Joyce. He has renounced what was his New Zealand citizenship by descent. The Solicitor General spent considerable time, before all seven judges of the High Court, making the case that Joyce had no knowledge and thus was not on notice of any citizenship by descent and as such had no ‘allegiance’ to a ‘foreign power’ under our Constitution.

The Commonwealth in Re Joyce (represented by Commonwealth Solicitor General Dr Stephen Donaghue QC) is up against contradictor Tony Windsor (represented by Justin Gleeson SC, former Commonwealth Solicitor General). The High Court decision is imminent. It is frankly impossible that the Tele editors and writers are not fully cognisant of the government tension about the decision, the representation, the political implications. Of course they are.

And here is an unmistakable political intervention, cementing the Joyce (former) dual citizenship status in the minds of the punters, while avoiding the precise claim.

Over at The Guardian, the political editor sent a pair of pointed tweets:

  1. There’s something of a convention in Aus politics: unless there’s criminality, coercion or abuse involved, private lives are private.
  2. It’s a good convention. I hope we stick with it.

This message was prima facie addressed to 120,000 twitter followers. It is also an intervention, in the sense I have been using the word, the political reporter as political player. The purpose is to maintain a specific reporting culture, one that has not served the electorate particularly well, whatever the benefits to the journalist or political classes.

Both claims are unsupported and unsupportable.

Saying that a convention is good and should be kept, because it is a convention and good, is not a strong claim (my credentials for assessing the strength and logic of statements and claims here). Both are also demonstrably disprovable: Channel Seven broadcast images of then-NSW Transport Minister David Campbell at the entrance to a known gay spa, Laurie Oakes decided to reveal details of an affair between Gareth Evans and Cheryl Kernot.

In addition, what is convention for politicians and political reporters – collectively – is not necessarily accepted (as convention or anything else) by the people. In a democracy, the media is the fourth estate, and has specific obligations, to operate in the public interest. The people are not some afterthought. The commoners are the third estate, the commons (I have previously written on this at length, for example here, here and here).

Whatever. I am personally grateful for the presence of The Guardian in the Australian political landscape. I mention these tweets in support of the more general thesis that political reporting tends to be somewhat insular. I disagree with the general assumption that what is convention for the political/media class should be accepted at face value by the electorate.

In sum, this weekend we have seen:

Fairfax leading with the claim that a hopelessly compromised Prime Minister somehow turned a corner on energy policy and thus his prime ministership when the policy is a cypher and according to polling he is approximately infinity corners from turning his political fortunes in a positive direction ;

The Murdoch press running a front page on a hopelessly compromised Deputy Prime Minister who is before the High Court on his qualification (eligibility) to be elected or sit in the Australian Parliament so naturally they ran with what he may or may not be doing in his sex life, couched in terms of what may or may not impact on his ‘marriage of 24 years’;

The Guardian political editor on twitter saying that private political lives are private which yes of course all decent people agree they should be except that this is a government which is currently, right now, at a cost of $122 million of public moneys and counting, running the Australian Marriage Law Postal Survey on the private lives of punters so…

So.  I guess I have said what I have to say. The standard of politics and political debate and coverage of political debate…  is quite something.

Hurrah! It is Section Forty-Forganza Week!

Tis a week awash with constitutional law experts, anyone can play. Just kidding. I am not a constitutional scholar, but I do teach jurisprudence, and do research media coverage of politics and law. The current constitutional case provides some fascinating insights into the intersection of media and politics, law and justice.

Courts decide cases by applying the law to the facts. The questions of fact currently before the High Court are whether each of seven politicians were ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’ at the relevant time. The question of law is whether those MPs are thereby disqualified from election to the Australian parliament. The relevant law is s. 44(i) of the Australian Constitution. The facts are the birth and heritage status of the seven politicians, which vary considerably.

The politics of law and fact

It is fair to say that fewer media organisations have specialist law reporters these days. It is also understandable, given the potential disqualification of six senators and a deputy prime minister, that political reporters are leading with this story (when not turning disproportionate attention to a Coalition backbencher).

Additionally, politics and law can not be disaggregated: politicians make laws, after all. Nor is the High Court entirely separate to politics. The Commonwealth is a frequent litigant, and the Court regularly rules on whether Attorneys General – commonwealth, state, territory – may join with a party before the court, on policy or other grounds (this is my favourite, which I comment on here).

But political reporters do not necessarily parse ‘policy grounds’ accurately. In law, policy-based decisions are when the judiciary not only retrospectively apply the law to the facts, but also take into account the prospective socio-legal impacts of a decision. Although often labelled judicial activism with derogatory implications, this is a wholly legitimate approach.

Principles of common law allow judges to consider socio-political impacts of assigning fault, or striking down legislation. Otherwise we would see legalistic stasis. The law moves slowly – look how long it took to reject terra nullius – but move it can, and does, and must.

Judicial decisions derive from judicial interpretation of statutes and case law. The judges are hedged in by rules and principles (common law doctrine), but they still exercise independence and discretion. This is why there are majority and dissenting decisions in appellate courts. Without judicial independence, every full bench decision would be unanimous, and appellate courts would be redundant (a famous illustration here). In sum, their honours can legitimately turn their minds to the consequences of finding MPs to be disqualified from the Australian Parliament.

Case strategy

Another entry point for the broader politics of this matter is case strategy, which lawyers design to optimise the prospects for their clients. It may involve seeking separate trials for co-accused, or grouping multiple offences in one hearing. Perceptions are formed as to what might be advantageous to which party. These decisions have bearing on outcomes, from admissibility of evidence to cost and delay.

In the case at hand, the government strategy is found in the submissions of the Attorney General, and reflected in the arguments of the Solicitor General. Again, this is wholly legitimate. Even government lawyers act in the best interests of their client.

On Tuesday, for instance, Mr Solicitor argued that Ms Waters is in a similar position to Mr Canavan. Both were born to Australian parents and became eligible for citizenship of a foreign power by operation of foreign laws. The factual claim is that both turned their mind to whether to activate the eligibility, and decided against. The legal question is whether the High Court ‘gives effect’ to foreign laws by disqualifying Canavan and Waters due to their ‘passive’ eligibility.

In the real world, Waters resigned from the Senate and expressed an interest in re-nominating. Canavan stepped aside from his Ministry but not from parliament. Like Waters, Scott Ludlum was born overseas and resigned, but he ruled out a return to politics. Canavan was born in Australia and has foreshadowed an exit from politics. (Nobody cares what happens to Malcolm Roberts).

Their circumstances vary substantially, up to and including being born in Australia (Canavan) or not (Waters). Yet the government has chosen to group Canavan with Waters, against her own position that she is disqualified, which is a specific decision with a specific purpose. This is case strategy.

Reporting politics, law, and justice

There are two other general points to make about the media framing of this case. The first is the oft-foreshadowed possibility that those MPs who have not done so may be ‘forced to resign’. This is supremely irritating, because no force is involved (unlike, say, how police handled a child here). Any resignation would be a function of the MP failing to comply with our Constitution, and of the High Court doing its job.

The absence of force is important, because the biggest claim that common law liberal democracies like Australia make for our system is this: legal and political conflicts are settled in a ‘civilised’ manner. With words, not fists. With elections, not coups. Using evidence and argument, not violence and vigilantism.

The rituals of legal process are imbued with this pretension to courteous resolution. But that is not how the law looks to Black people in prison cells, and their families. Or to welfare recipients sent AFP-branded debt notices by Centrelink. We pay Barnaby Joyce over a million dollars per three-year term, and thousands more in expenses, while aggressively pursuing the poorest people in society for petty or non-existent offences and debts.

This is not justice.

Similarly, the notion that the ‘High Court could bring down the government’ is erroneous. If Joyce is disqualified, it would be a product of Joyce’s oversight, and not because the High Court exercised some previously unrealised prerogative power in a curial coup. Plus, there are five cross-benchers in the lower house. The member for Indi will support the government on confidence and supply. Thus a shift from a majority to a minority government does not ‘bring down a government’. Such a narrative is misleading and frankly embarrassing, given we had a minority government a mere four years ago.

In my view, if Joyce could discover and renounce New Zealand citizenship in 2017, he could have done so in 2004 when he nominated for the Senate, or in 2013 for the seat of New England (wiki history here). This position is based in law and morality. To me it is simply wrong of Joyce to not ensure his eligibility to sit in the Australian Parliament when he receives such enormous largesse from the Australian public to do so. I say largesse because I can not see any value-add to the national interest, any return on our investment, in Joyce and his travels.

So yes, the politics of this case are fascinating, but not necessarily in the ways that are offered up by political reporters. Constitutional law is a serious business, and the law is not a game.

This column was first published here by Independent Australia on Thursday 12 October 2017

Equality before the law is a fundamental right

One of the most enduring objectives of western scholars is to define the parameters of debate within their field of expertise. This is then countered by another scholar who wishes to emphasise the boundaries within which their own expertise will shine. In this way, an endless and largely redundant struggle for supremacy in a particular discipline is perpetuated.

It is a competitive and adversarial model, in the same tradition as Westminster liberal democracy (government and opposition), the common law (prosecution and defence), and free market theory (supply and demand). In academia, the ‘marketplace of ideas’ includes scholarly journals, books and book chapters (for publication prestige); undergraduate (prescribed) texts (think of the royalties!); and public debate.

Only a very small proportion of scholars in any field carve out a public profile, translating their research into comprehendible language for a wider audience. Some make it an artform, like Karl Kruszelnicki; others crash and burn on a crusade which is more culture war than expertise, such as Richard Dawkins. Kruszelnicki made his name talking science on youth radio, while Dawkins crashed and burned on social media, where his poorly-conceived thought-bubbles were a kind of proto-type for Trumpian Twitter.

It should go without saying, but unfortunately does not, that the dominant voices are products of the same social organising systems from which Westminster liberalism, market theory, and the common law hail: English-speaking white patriarchy. These societies are rigidly hierarchical and operate on principles of exclusion rather than inclusion. Heteronormativity excludes LGBTQI people, rainbow couples and families; ableism excludes people with disabilities. Women and black people and First Peoples and people of colour must work twice as hard and be twice as good for half the reward of their white male counterparts.

Crucially, aggressive competitiveness is coded, not as harmful and nasty, but as rational self-interest. The hierarchical adversarial model demands that individuals, as the smallest (and, ridiculously) most revered social unit, scramble over one another for prominence and various shonky measures of success. The model is designed to create winners and losers; and winners and losers it creates.

As any socio-cultural scholar will recognise, this is a system populated by power-holders. Systems and systemic power-holders allocate a huge volume of resources to ensuring systemic reproduction. This has the intended result of married white able-bodied men continuing to dominate every platform – books, journals, public debate – in every discipline. These dominant voices squabble among themselves as to who gets to define the parameters – inclusion and exclusion along hierarchical lines – of each discipline and discourse.

The same in-crowd also devotes substantial time and effort to promulgating the lies of liberalism: that the playing field is level; or the market place, including the ‘marketplace of ideas’, has no barriers to entry; that merit is the key determinant of reward; or that critique of positional power is mere identity politics.

Enter a new model for scholarship and public debate into this intangible social construct of the marketplace of ideas: The Conversation website. It is brilliant business model. Universities subscribe and its academics contribute; research is disseminated to a wider audience; the public get access to expert commentary from which they would otherwise be locked out, or turned off by jargon. It is at heart a project with integrity, because the democratisation of knowledge – coming down from the ivory tower – is an inherent social good.

However. There is no reason The Conversation is quarantined from the same aggressive, competitive forces which are iterated across the English-speaking liberal democracies. Positional power is signalled by title – Professor, Director, Dean – and is more likely to gain editorial attention. This carries the risk that quality may be assumed rather than assessed. ‘Contested’ ideas may be enthusiastically uploaded to a space conceived of as a competitive marketplace of ideas, in a scholarly iteration of clickbait.

Nor is academia immune from the kind of intellectual dishonesty which drives popular positions on patriarchal values. This is the kind of perspective which proclaims rape culture ‘comedy’ to be edgy, when it is just rape culture, which is neither edgy nor funny, but simply another manifestation of patriarchal values which simultaneously trivialise, normalise and invisibilise male violence against women. How is something which pervades every aspect of women’s lives, and harms us in specific and known ways, new or edgy?

It is from this critical perspective that I question a respected professor writing in favour of boycotting the ugly mess of a policy that is the survey on marriage equality in Australia. He may be perceived as brave and edgy, because the social sciences are assumed to be bastions of the left. But research institutes specialising in sociology and cultural studies are just as likely to be headed up by married white men as any other institution. It is not brave or nuanced to argue against marriage equality. It is to reinforce the status quo.

This is a matter of social fact. We do not have marriage equality in Australia, so to take a position against change is to take a position for conserving the current norm, the very definition of conservatism.

With a level of incredulity I no longer thought possible at my age, I read the words of a man with positional power, a white man, published in The Conversation, which pointed to the concerns of religionists rather than the basic human rights of lesbian and gay people, bisexual and trans and intersex people, of queer people. Before answering the questions he posed, and the answers are not complex, I set out the basic principles at stake in this space.

Ending marriage inequality in Australia is a matter of amending the Marriage Act 1961 (Cth). This act was passed by the Commonwealth and is therefore binding on the states and territories (to the extent of any inconsistency with state or territory law, see the paramountcy principle as codified into s. 109 of our Constitution). The relevant section is the definitions section. It states, among other meanings, that “marriage” means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life (original emphasis).

The Marriage Act was passed by the conservative Menzies government in 1961 under s. 51 of the Commonwealth of Australia Constitution. It states: ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… (xxi) marriage’. The act was amended by the conservative Howard government in 2004 to exclude any marriage other than marriage between ‘a man and a woman’.

The amendment breaches two fundamental principles.

Firstly, the foundational principle of all common law countries is Rule of Law. While our political leadership expends considerable rhetorical energy pronouncing on Rule of Law, few question its content. The content of Rule of Law says all are equal before the law; and nobody is above the law. This statement is not a social fact in any common law country, but that does not change the content of the rule.

The second principle can be found in the Universal Declaration of Human Rights. The Declaration has been endorsed by more leaders representing more people in more countries than any other statement in the history of humanity. The very first article declares that ‘all human beings are born free and equal in dignity and rights…’

The Declaration is not of itself an instrument of international law, although many of its articles have been so coded (Article 14 into the Refugee Convention (1951), for example, another area where Australia operates contrary to our stated values and legal principle). The Declaration is not of a single social or cultural or political or legal category. It is a statement of global human aspiration; and it contains standards by which nations may evaluate our humanity, our polity, our society, our laws.

With regard to marriage inequality in Australia, therefore, we are at a place well short of global aspiration, and the problem is codified in the legal space: by Commonwealth statute as passed and amended under the authority of the Australian Constitution; and by common law principle, in this case the first principle, Rule of Law itself.

Turning to the questions posed by a white male professor, a research institute director, and thus a person who can and does exercise considerable social-positional power, on a website widely respected in the academy and by the public:

  • How can we ensure equality of intimate partnerships for all, with appropriate cultural, political and legal recognition?
  • Second, how can we maintain respect for customary and traditional rites?

Here are the answers:

The first requires positive change, an action by lawmakers. What they do is table a bill which repeals the words ‘[between] a man and a woman’ in the Marriage Act 1961 (Cth) s. 5; and insert the words ‘two consenting adults’.

The second requires nothing. Zilch. Zero. Whatever respect society holds for customary and traditional rites will be maintained, or not. Either way, it is not a question of human rights or equality before the law.

When vigilante violence is condoned

Oooh he’s a little blondie like I was, says my niece, who has a little blondie of her own now. He’s not the little blondie running around anymore says his great-great auntie, who recently saw my boy, her 15-year-old nephew, for the first time since he was a toddler.

Like my youngest son, Elijah Doughty is a blondie and unmistakably Aboriginal. His beaming smile is heartbreaking today. I do not know Elijah or his family and I offer love and condolences to everyone who does. I only mention his looks because that picture of Elijah reminds me of my boy every time.

Is this personal connection what it takes to humanise Aboriginal people – even Aboriginal children – in the collective mind of white Australia? In my kids’ extended family, blondie expresses loving-belonging. I do not know if other families do this, but I know that words and gestures of loving and belonging matter, to reassure our kids, who daily face ignorant and harmful remarks, like whether they ‘look’ Aboriginal.

White Australia demands to be competent in determining who is Aboriginal, but it does not know. It may never know. Aboriginality is ontological , it is independent of white classificatory systems. Still, White Australia always knows who it can kill and incarcerate and criminalise and oppress and forcibly remove from family with impunity.

I am writing this because a white man killed a Black child, which – apparently this needs to be spelt out – is an objective moral wrong. The man was not charged with murder, and he was found not guilty of manslaughter. I am writing this because there are white people out there defending the killer, defending the legal system that let him kill with impunity. I am writing because our society is awash with racist violence and awash with normalisation of racist violence and still we let this go on and on and on.

 

Fact and law

The identity of the 56-year-old killer is suppressed by the court. He pleaded guilty to causing the death of Elijah ‘by dangerous driving’. The law categorises killings into lawful (eg self-defence) and unlawful (eg murder requires intent). The unlawful killings are further categorised into murder and manslaughter, and involuntary manslaughter. The accused can be charged with murder and come out with a manslaughter verdict, which is sui generis, a category (genus) of one (single). You can not be charged with armed robbery and get a lesser verdict like break-and-enter. This is because, as with all human societies, we say that the taking of the life of a fellow human is extremely serious.

So referring to the anonymous killer as a murderer (eg on social media) is not a good idea. It is wrong at law, and the law likes to punish those who are wrong at law. In the system we have, which was imposed by the English at gunpoint, only a court – whether a judge-only trial or trial by jury – can determine guilt on the offence. In contrast, calling the killer the killer is not wrong at law, because the killer pleaded guilty to causing the death of Elijah. What he did killed Elijah, and he conceded that by pleading guilty to occasioning death by dangerous driving.

What happened and coverage of what happened

There is no doubt, in law or in fact, that the anonymous killer got in a ute and chased down Elijah and killed him. On the evidence, the killer was told by a police officer where motorbikes are often “dumped” and went to that place. He then saw Elijah on a motorbike and chose, of his own free will, to drive in a manner that killed Elijah. This much is on the public record.

What happened next was absolutely typical of Australian law and society. To say that the not guilty verdict for manslaughter – the killer was not even charged with murder – or the sentence of three years are astonishing or incredible is to perpetuate the lie that racist violence is normally punished.

It is not. Killing Aboriginal people with impunity is the norm. If the anonymous killer had been adequately held to account… that would be astonishing. Reporter after reporter put on their grave face to ‘report’ that tensions were seething in Kalgoorlie-Boulder. That ‘there was anger’ in the Aboriginal community, as though this was some kind of abstract or independent thing. Aboriginal people are just angry, you see. Random as.

Put it this way. If my son steals a thing, it is okay to kill him. Sounds harsh? That is exactly what is being said about Elijah right now. Put it another way. The property rights of the white man are of greater value, to the white man and to white society, than the human right to life of the Black child. There is no moral universe in which this is a defensible ethical position. Yet there they are, all over the newsfeed, taking exactly this position.

Our political leaders, of course, have taken no position at all. They are all over the shooting of a white woman in America; but not a peep on the vicious vigilante killing back home. I wonder why.

News story after news story reported on what a great job the WA police did in keeping the peace. Such heroes. With their guns and their riot gear in the face of people in mourning. Since when have Aboriginal people done anything but negotiate? And been slimed for their trouble? When Aboriginal people express anger, sadness, despair… it is not just the state but white society that pushes back in the most inhumane ways.

We do this because we know our presence is illegitimate. We know we are on Aboriginal land. We do not want to admit it. So we frame perfectly reasonable Black responses, the same response any one of us would have if Elijah was OUR child, as an existential threat.

The existential bit is true. But not the threat. Fuck Camus. Forget the threat. All any Aboriginal person has asked of me is to listen, learn, and be yourself.

From a crowded field, the worst Turnbull government decision yet

I got the bit about the Prime Minister feeling under siege, from the weird array of weaponry at his Monday press conference. I understood he was projecting his worst fear – losing face – by posing with gas-masked muppets. It was clear this ludicrous pantomime would crowd the Referendum Council Final Report out of the top headlines.

But I did not think Turnbull could top off that hyper-contrived clownshow inside 24 hours.

That political editors choose terror announcements over propositions for constitutional reform has nothing to do with substance and everything to do with optics. The Referendum Council news footage showed a fidgety Bill Shorten and a tremulous Malcolm Turnbull cautioning against heroic failure.

Such dullness is no competition for inflatable zodiacs and special ops commandos. But by Tuesday, that crock of nonsense was surpassed. Out trundled the Prime Minister to announce that Peter Dutton will head up a super-ministry to respond to “the evolving terror threat”. The move was widely anticipated since at least April, because Dutton is a conservative thorn in the Prime Ministerial side. It is a terrible decision. Space precludes listing everything wrong with it (Sean Kelly has helpfully enumerated many reasons), but it also highlights a broader theme.

Meritocracy mythology and government by gamesmanship.

In our system, it is absolutely routine to reward those in power for ineptitude and wrong-doing. Remember the death of Ms Dhu? Two of the police officers whose neglect killed her were promoted. Remember how we traded wheat for weapons in breach of United Nations sanctions while at war in Iraq? The responsible Minister Alexander Downer was gifted the London High Commissionership. Look at Joe Hockey, a Treasurer so innumerate he was nicknamed eleventy. Now he is our man in Washington:

Peter Dutton was voted worst ever health minister by 1100 doctors (the field includes Tony Abbott). He speculated that Lebanese Australian Muslims who migrated over forty years ago caused terror threats. The “dour and plodding former policeman” said:

“Out of the last 33 people who have been charged with terrorist-related offences in this country, 22 of those people are from second- and third-generation Lebanese-Muslim background.”

All 33 people are innocent, because they have been charged, not proven guilty. It is not surprising that a former police officer does not comprehend presumption of innocence.

Aside from this misleading and probably malicious racism, Dutton is responsible for monumental waste and cruelty. The Department of Immigration and Border Protection spends almost half-a-million dollars per off-shore asylum seeker per year. It spent over $2 billion on its off-shore detention regime without proper authority. The most recent pay-out to keep its torturous actions secret was $90 million. Even before the Home Affairs announcement, the department found $250 million for its new mega-HQ. It spent over $1 million on toy medals – more than the ADF spends on real ones.

It was the Abbott government that allocated over $400 million to set up a ‘Border Force’ incapable of running a lawful identity check. Dutton was the minister when Operation Fortitude was conceived and fell flat on its ridiculous face. He refused interviews on the grounds that the operation was an operational matter – when it was demonstrably inoperative.

All this was reported as ‘controversial’, when it was simply racist and unlawful. It was not unbelievable, or incredible. Expressions of surprise reinforce the lie that racist abuse of power is the exception, that there are serious consequences. But Quaedvlieg still has his job. Meritocracy mythology is aggressively prosecuted, but the exact opposite happens. Those with positional power who know where the bodies are buried are more likely to be promoted under government by gamesmanship.

Operation Fortitude was racist overreach of the first order, and we can expect more racist overreach from a Dutton-led Home Affairs Department. The only justification for all this – as well as for the citizenship law amendments and the embarrassing gibberish about the ‘laws of mathematics’ – is false.

“My job is to keep Australians safe” Turnbull claims endlessly, and the evidence of its falsity is on the public record.

 

Not all Australians

Turnbull does not mean his job is to keep all Australians safe. He does not mean Aboriginal people in custody. He most certainly does not mean Aboriginal children in custody. Or a black boy hunted down and killed [$] by an angry vigilante, reportedly after receiving information on the boy’s likely whereabouts from a police officer.

For 220 years, police and other armed personnel have rendered Aboriginal people unsafe. Take a recent report showing how NSW police and courts, and not crime rates, cause higher rates of incarceration of Aboriginal people. It works like this. Where an Aboriginal person breaches an AVO, police add more severe stalking offences to the charge. Bureau chief Dr Don Weatherburn suggested there could be 500 fewer Aboriginal people in jail per year but for police escalating charges. When asked why police bring more severe charges against Aboriginal people, Dr Weatherburn said “we don’t know”.

We don’t know.

Nor will the safety of Muslim women in public, a serious problem largely caused by political terror-rhetoric, be enhanced by the Homeland Affairs department. The new department will not make Muslim and other feminists who make perfectly legitimate comments online ‘more safe’. Turnbull is not talking about the safety of women and children trapped in households with a violent man. In NSW, ‘family men’ killed 192 women and children in the ten years to 2010. Nationally, men kill on average two women who were their wives or girlfriends every week. These killings are the tip of the domestic violence iceberg.

As an economist and domestic violence survivor, I note the misallocation of resources inherent to the ‘security’ spend; and am reminded how little our society cares about women and children. Governments spend billions conflating a racist and violent immigration regime with terrorism, but shut down women’s shelters.

For decades police told women that there was nothing they could do about stalking. The stalker ‘had not committed a crime’. Yet when the Lindt café siege report was handed down, NSW Police created a ‘fixated persons unit’ virtually overnight – while the years feminists spent convincing the law to take stalking seriously are used by police to send more Aboriginal people to gaol. The NSW police shot and killed an innocent bystander in the Lindt café. They were rewarded with new shoot to kill powers. Their failures prompted debate about whether the ADF should have been called in. The Prime Minister used this to beef up military call-out powers, and neutralise a factional opponent with a mega-ministry.

Politicians always seize excitedly on anything that can be passed off as evidence of an increased terror threat. This is not reward for merit. It is government by gamesmanship.

Consider this: the mega-department of Home Affairs will do nothing to address the greatest safety risks to First Peoples and Muslim women, to people of colour and all women and children. Together, these groups make up a majority of the population. And this: Peter Dutton is a ‘family man’ and former armed agent of the state. It is these two groups that pose the greatest safety threat to millions of Australians.

This post was first published by Independent Australia on Wednesday 19 July 2017

Holding ministers to account

The federal government is in a spot of legal bother. This may seem like the old cliché about the builder with the unfinished home renovation, but it isn’t. Tradies prioritise work for paying customers because it puts food on the table. The same explanation is not available to a government awash with lawyers, because its elected representatives are generously remunerated by the Australian public.

What is their excuse? Do they care? The news this week answers a few questions that regularly kick around my conversational circles. Questions like: Who or what will hold this government to account? Federal Corruption Commission? Is it getting worse? How to tell?

Here is one answer: a Supreme Court moved to speak on judicial independence, public confidence in the administration of justice, and the Rule of Law. Here is another. When a policy has cost over $9 billion in three years (2013-2016) for outcomes so catastrophic we just negotiated a $90 million settlement to 1,905 people subject to the policy… yes, something is rotten in the state.

Nobody is on trial

The first matter is a mention in Commonwealth Director of Public Prosecutions v Besim and CDPP v MHK. These are sentencing appeals before the Victorian Supreme Court. The defendants had pleaded guilty to planning to commit a crime. This act of planning has itself been made a crime, on the basis of the type of crime the person is planning to commit. Thus neither man has committed an act of terrorism, but both have terror-related convictions. Besim was sentenced to a maximum of ten years and a minimum of seven years six months. MHK, whose identity is suppressed, was sentenced to seven years with a minimum of five.

The court reserved its decision as to whether these sentences are too lenient. Before any decision was brought down, three federal ministers from Victoria – law graduates all – made comments to The Australian newspaper on the topic of judges, sentencing, and terrorism. The comments have been retracted with regret but no apology.

Health Minister Greg Hunt said ‘Comments by senior members of the Victorian courts endorsing and embracing shorter sentences for terrorism offences are deeply concerning… the state courts should not be places for ideological experiments in the face of global and local threats from Islamic extremism’.

Assistant Treasurer Michael Sukkar said ‘It’s the attitude of judges like these which has eroded any trust that remained in our legal system. Labor’s continued appointment of hard-left activist judges has come back to bite Victorians. Our judiciary should focus more on victims and the safety of our society, and less on the rights of terrorists…’

Human Service Minister Alan Tudge, who supports generating debt notices by algorithm which are known to drive welfare recipients to suicide said ‘Some of these judges are divorced from reality We have a crisis on our hands with people who want to kill indiscriminately and yet some judges seem more concerned about the terrorists than the safety of the community’.

The court wrote to the Attorney General and called on the ministers to ‘show cause’. The Ministers were not ‘hauled’ before the Court. In fact, the Ministers were not required to, and did not, face the court. Commonwealth Solicitor General Dr Stephen Donaghue QC appeared on their behalf.

The court took appearances and reserved its decision as to whether to refer the ministers for contempt. It is normally the Director of Public Prosecutions who decides whether to lay charges, using specific guidelines, like whether a reasonable jury could convict on the evidence. In the case of contempt, the court can refer the matter to the prothonotary of the Supreme Court for prosecution on grounds of sub judice or scandal.

Implications at law

This means exactly what it says. It is not complex. The legal implication is that the ministers showed contempt for the court by improperly discussing, and putting on the public record, matters which were before the court. Chief Justice Warren said in her opening remarks ‘contempt does not exist to protect judges or their reputations but the independence of the judiciary [from the political arm of government]. Its decisions bind government and citizens alike’.

Judicial independence is from the political arm of government. This is the doctrine of separation of powers. Political interference in judicial process is a breach of the doctrine, and may undermine public confidence in the administration of justice. The key mechanism for dealing with this kind of breach is contempt. Judicial decisions bind government and citizens alike: ministers are not above the law, because nobody is above the law. This is Rule of Law.

While the political leadership has skidded over this issue with glib remarks about free speech and public debate, I strongly suspect the public takes fundamental democratic and legal principle as seriously as does the judiciary and the rest of the legal profession.

The $90 million asylum seeker case did not go to trial either. It was what lawyers call an offer ‘on the courthouse steps’. As a lawyer highly experienced in these matters, Josh Bornstein writes that the Commonwealth follows

‘a predictable pattern… strongly defending them for years, driving up legal costs, and then settling just before trial. The cases do not proceed to trial because torturing refugees is unlawful and the politicians are desperate that the shroud of secrecy over the conditions in detention is not lifted.’

Most lawyers use words very carefully. The evidence of torture is in a United Nations report which found that by ‘holding asylum seekers in dangerous and violent conditions on Manus Island’, Australia is ‘systematically violating’ the Convention Against Torture.

But it was not torture that exercised the emotions of the Minister for Immigration and Border Protection. An apoplectic Peter Dutton denigrated the law firm as ‘ambulance chasers’; and furiously blamed the Labor Party for a settlement negotiated by his own administration. And the settlement is infuriating. Think how many asylum seekers could be assessed and resettled for that money.

The reason offered was that $90 million is lower than the potential total costs if the case went to trial. Because the Commonwealth does not concede any liability, it logically follows that this ‘cost-saving’ claim does not include compensation. In this hypothetical comparison, the Commonwealth spends in excess of $90 million to ‘win’ the case; and the court does not make a costs order against the ‘losers’.

Back in the real world, there are possibly alternative reasons. Maybe the Commonwealth did not have a robust defence, or did not want the evidence presented in an open court. Perhaps the Commonwealth received legal advice pointing to a large compensation payment and massive costs order against it. In this scenario, the final figure – compensation plus costs – could well be higher than $90 million. But it turns on a finding of liability against the Commonwealth, and the Commonwealth admits no liability.

These two positions – put by a Minister of the Crown in Parliament and negotiated by lawyers for the Commonwealth – can not both be true. But both are legal. This, too, is Rule of Law. Meanwhile, the Australian public pays the settlement, and the Australian public pays the salaries of Peter Dutton and Malcolm Turnbull. These men will not be held to account.

Accountability in democracy

In a class action like this, the onus is on the plaintiffs (asylum seekers) to show that harm was caused to them by the respondent (the Commonwealth). This is a microcosm of basic rules of logic. A classic example is the god debate. If I say that god exists, the onus is on me to show, using logic and evidence, that god exists. The onus is not on others to disprove a claim, that I made, without any evidence.

The principle derives from Athenian political philosophy, which penalised citizens who made speculative claims in the public domain. The idea is to disallow unsubstantiated nonsense, by holding citizens (free men, about 10% of the population) accountable for their public claims – literally statements.

All citizens had the right and the obligation to participate in the governance of the city-state. This conceptualisation of obligations as rights has largely been lost in contemporary nation states. We know at some level that the flipside to rights is responsibilities. But responsibility is regarded as somewhat onerous. This departure from the spirit of the demos comes via the class-based ‘representative democracy’ (House of Commons, House of Lords) and social contract constructed by the English.

In this model, we discharge our duty to participate by voting for a representative; and cede the right to participate in law-making to those representatives. This disaggregation of obligation-rights divides citizen from parliamentarians. But a trace of Athenian logic – the formal English word for truth and logical validity is ‘sound’ – remains in the Westminster principle of ministerial accountability.

The idea is that ultimate responsibility for executive government decisions and actions lie with the minister. There is a mechanism for upholding this principle too. It is called resignation. A sound man – should his department do things so monumentally terrible as to be condemned by the Committee Against Torture, or should his legal representatives offer a $90 million settlement rather than have those terrible things revealed in an open court; should he act in breach of so fundamental a doctrine as separation of powers, or show contempt for the Rule of Law itself; and all while a Minister of the Crown… A sound man holds himself accountable to the people, and resigns.

An edited version of this post was published on Independent Australia 21 June 2017

 

The human subjects of endometriosis research are humans with endometriosis

There are specific ethics considerations around research with human subjects. These words may – and should – conjure up images of men in white coats measuring the noses and lips of Aboriginal children, and stealing the skulls of their ancestors. Of doctors prescribing drugs to pregnant women that cause deformities over at least three generations, and not stopping when its damaging effects are fully documented. Of Henritta Lacks, and the Tuskegee Experiment. Of electric shocks administered to same-sex attracted people.

These are just a few examples of the crimes of science. Science is not infallible. It is not pure as the driven snow. The notion of purity itself is a white western christian construct, and its adherents have caused enormous harm to people all over the world. The fetishisation of science as all that is noble and good and right has a long and shameful history. Science reflects and reproduces the values of the society in which it is done. In the west, these values are sexist and racist and homophobic, ablist and anti-Semitic.

As a researcher, I am deeply vested in getting the science right, in doing research with integrity, in ensuring that human beings are not harmed by my investigations into their lives. When designing a research proposal, researchers must be cognisant of ethics clearance. Even after funding has been secured, the methodological details are submitted to an ethics committee for approval. As with any institutional process, this is an onerous bureaucratic task. It is even more so if the study is not of birds or buildings or legislation (for example), but human beings.

Research with human and animal subjects

The main ethical distinctions between animal and human subjects are these: animals can not and do not consent to participating in the research, meaning there is no voluntariness. And the purpose of research on animals is almost always to bring some benefit to humans, meaning there is no therapeutic benefit to the animal on which the scientists are carrying out their experiments. The key ethical question with respect to experimentation on animals – and I am not endorsing this priority, just describing it – centre on potential harm to the animal.

Research with human subjects has different ethical standards. Say a person was infected with Hepatitis C while in hospital for a skin graft. She takes on board this information, and despite the fact that the problem was caused in a hospital, she retains some trust in the medical profession, and reports regularly for check-ups, as per advice from her doctor. Three years later, the doctor says there is a new drug which may cure rather than manage Hepatitis C, and asks if she would like to be part of a clinical trial.

The patient hears all the advice, receives all the information, and fully comprehends voluntariness. She knows she can withdraw her consent in the trial at any time.  She signs on, and six months later is free of all symptoms. After a year, she is declared free of the disease. Two more years, and her doctor advises she need not check in for another five years. She has never felt better. The drug is released on the market. It changes lives.

This is a real case study, and the best-case scenario. It is extremely rare, but this is how ethical research with human subjects is supposed to work. The person (human subject of research) is fully informed of the risks, she fully consents and knows she can withdraw consent, and there is a high likelihood of therapeutic benefit, not just to others or society at large, but to the participant herself.

Ethics research standards

Research can be on all sorts of subjects – stormwater drains, algorithms, chemical compounds. Ethical considerations come into play when the drain or the equation or the chemistry affects humans, beyond the research environment. This is because the subject matter of ethics is human interaction, and what is good, and what is right. What is a life well lived? How should we treat other people? Do our decisions impact on future generations, on the planet? Are we integrating our ways with the world around us? This is literally the root of integrity: getting along with others in the society to which we belong.

A stormwater drain is not affected by my observation of its workings. But my interpretation of drain data is influenced by my inherent biases, my background, my prior knowledge of water and drains. Some improvement in stormwater management may result from the research, and this may benefit some humans or society in general. None of this is of any moment to a concrete pipe.

If my job is to test the potential harm of active ingredients of a cosmetic, like allergies or skin conditions, I will probably seek to do so on animals. This can and probably will cause harm to the animal; and will benefit people who later profit from sales of the product. The harm will not necessarily follow, but it is extremely likely, and predictable. The prediction is inherent to the purpose of the research, which is to test for potential harms the product may cause. The experiments are designed to extrapolate any harm caused to the animals in the study to potential impacts on humans.

So research ethics is categorised in these various ways, founded in what philosophers call objective morality. We in the west have an anthropocentric tradition, placing humans at the centre of our pursuits, at the top of a constructed hierarchy. Not all cultures do this: the Aboriginal totem system ensures that people have special responsibility for kangaroo, or frog, or whale. Other forms of Aboriginal social organisation see authority – via birthright, kinship, learning – to speak for a tract of country. From these practices, the ecologies of this continent and her islands are carefully looked after, and have been for upwards of fifty thousand years.

The western tradition, in contrast, is rigidly hierarchical and anthropocentric. Humans are sui generis – in a category (genus) of one (single). We see ourselves as at the ‘top of the food chain’. We punished those who dared to observe that the earth was not at the centre of the solar system in which we exist. The west has not thrown off legacies of pre-Copernican religiosity. Look at contemporary atheism, for example, under the ‘leadership’ of unreflectively privileged men like Richard Dawkins. There is a decidedly religious fervour to the continuing elevation and mythologizing of science.

And it does not matter how onerous the ethics approval standards are if the oversight is left to scientists to self-regulate. As any ethicist (or lawyer) could predict, ethical standards are regularly breached unless a standard-setting body – a professional organisation, the state – allocates resources to compliance and enforcement.

Not all humans

Ethics committee clearance for research with human subjects has rules around potential benefit and harm to human beings. No scholar should seek to obtain knowledge if the net result is harm to the participants. We are not stormwater pipes or algorithms or rats. The potential therapeutic benefit to human participants, as in the Hep C example, is a real consideration.

But the western tradition not only places humans at the top of a misinformed hierarchical way of seeing the natural world, but also grades humans into categories of value. It is not coincidence that the worst crimes of science are committed against black people, and gay men, and pregnant women. This is a function of the specific values of white patriarchal societies. These societies reward domination and control, aggressive competitiveness (called ‘rational self-interest’), and are incapable of seeing or changing its own violent and dishonest core.

The western canon is riddled with false dichotomies: empirical and normative methodology; science and religion; natural and positivist world views. This is because western epistemology is ontologically adversarial. It is not capable of not producing false dichotomies, because simplistic binaries are its basic cultural unit, built into its structures at every (formal) level.

This is fine when designing computer codes, or building cathedrals with as many resources as could feed all the city’s poor for a decade (okay no that is not fine, but it did happen). It is not fine when deciding who may be human subjects of which research, either. These decisions are dominated by the same demographic group who dominate the executive level in all our institutions. Unless the ethics committee is extremely vigilant (and unusually demographically diverse), the hierarchy of humanity ingrained into western culture is reproduced in research culture. It elevates straight white men and devalues the lives of all women and children, of First Peoples and people with disabilities, of Black people, of people of colour, and LGBTQI people.

A study into the sex lives of male partners of people who suffer from endometriosis

Random, you might say, unless following a story this week about a study exploring “the impact of endometriosis on men’s sexual wellbeing”. yes, that is the research topic. It is misguided at best, and very likely poorly served by the relevant ethics committee and research institution.

The parameters on any endometriosis research are determined by the condition. Endometriosis is debilitating. It is painful. There is abundant evidence that doctors minimalise and trivialise the suffering experienced by women, and girls as young as eight, that comes with endometriosis.

Women, and girls, and trans people dealing with menstruation or associated experiences in this context, are routinely disbelieved, spoken over, ignored, and dismissed by the medical profession. The effect is even more pronounced when it comes to our reproductive health. Doctors prescribe dangerous and harmful substances like DES and thalidomide for as mild and normal an experience as morning sickness (chronic all-day nausea during pregnancy is debilitating, but this is much rarer). Such practices cause trauma and hardship to millions and millions of people.  Unnecessarily medicalising experiences like menopause is a hugely profitable industry. It is we who menstruate or get pregnant or stop ovulating, yet it is white cis men who dominate the medical profession and drug industry, and are the wealthiest shareholders.

All this requires that science continuously reproduce the myths of infallibility, the idea that doctors know best. For this dominance and control over our health to be maintained, and the money to be made, we are told that we are not the experts on our own bodies and our own pain. It is ontologically impossible for a cis man to know more about period pain than anyone who has experienced period pain. Similarly, the male partners of a person who has endometriosis can not contribute more value to endometriosis research than those with the condition.

The debate that emerged this week centred on the study of men in such partnerships, and their sex lives. This is what bioethicists call a surrogate end point, which is when researchers create an artificial endpoint for the purpose of obtaining the desired result. For example, a new drug is shown to lower blood pressure, and lower blood pressure is assumed to have a preventative effect on heart disease. Yet the drug has a side-effect that increases the likelihood of heart-attack. Only the first results are tested and reported, and the drug is approved. The subsequent increase in heart attacks of those taking the drug could have been avoided, but for the surrogate end point built into the research design.

Say a bloke recruited to the man sex life endo study broke up with his girlfriend who has endometriosis. Is he still eligible to participate? Not really. The study is on men who are the heterosexual partners of women with endometriosis, and he no longer meets that description. But perhaps his experiences, no matter how vaguely recalled, would still be considered relevant? Why? So the researcher can continue the research.

A study on male partners of those who suffer from endometriosis is ontologically about endometriosis. His response, his experiences, the data he provides, are all contingent on the condition, and their partnership. The ethics clearance for this research would have weighed whether the study will benefit or dis-benefit those men (and society in general). But this is a surrogate end point. The recruitment of participants is dependent on his relationship to the person who has endometriosis. As such, the true subject of the research is endometriosis, so the true ethical question with respect to ‘human subjects of research’  is whether humans with endometriosis are likely to benefit or be harmed by the study.

Will she be better off? Probably not. Will the study cause harm to her? Quite possibly. Who among us has not told a bloke true facts endlessly, for weeks or months or years, only to find him an expert on the topic when told by another source – like, say, the University of Sydney? This is a real and likely harm. It causes anxiety, it messes with our heads.* It is a familiar and tiresomely repetitive experience, and thus can be re/traumatising. The bloke is only relevant to the study for his relationship to another person, and a condition – endometriosis – which does not exist without its human host. His relevance to the study does not either. The potential good or harm that should be taken into account by ethics committees is much wider than the recruited ‘male’ and his ‘sexual well-being’.

Additionally, the likelihood of having a partner with endometriosis is doubled among lesbian couples. Endometriosis is a prevalent and painful condition. But this study is not interested in the sex lives of lesbians. Science is sexist and science is homophobic, and no amount of manufactured sympathy for a researcher (who was not “attacked” by anyone) will change these institutionalised norms.

The defence of the researcher that I saw was not based on research ethics. Instead, most defences focused on the fact that the researcher and the endometriosis sufferer who wrote an op-ed in The Guardian are both women. The men doing this were too dense to realise that their ‘defence’ basically amounted to “Science! Cat fight! Freedom!”. None of this is the issue. Ethics in research with human subjects is what matters, and the ethical analysis shows conclusively that any potential harm to those people who suffer from endometriosis, the humans whose condition and partnership determines the eligibility of participants, should have been taken into account.

*I do not have endometriosis. I have menstruated for 35 years and counting: and have been pregnant four times and given birth three times. This gives me greater insight into the pain and experience of patriarchal medical norms with regard to reproductive health than any man who has never menstruated or given birth.