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.

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.

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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.

Referenda and Recognition: Whose political leadership?

[This article was first published on Independent Australia Tuesday 23 May 2017]

This week marks fifty years since the most emphatically supported referendum in the history of Australian federation. In 1967, the Australian electorate voted overwhelmingly to constitutionally empower the Commonwealth to make laws governing ‘the aboriginal race’. A Yes vote over 90 per cent was unheard of, before or since. This overwhelmingly positive result assumed that law is not the problem but the solution to injustices.

Unanimity is an anomaly in democracies. The norm is “50 per cent plus one”, which delivers carte blanche to a “tyranny of the majority”, who then invoke the dubious concept of a mandate and proceed to govern in the interests of their own vested class. When Donald Trump governs in the interests of his own, the only novelty is that he ignores conventional democratic charades, and his class consists primarily of his family and businesses.

First Peoples, Colonialism, Constitutionalism (1770-2017)

“The first ten Australian Prime Ministers were vehemently white supremacists. Indigenous people were never included because we were going to die out” – Dr Gary Foley.

This ‘evolutionary paradigm’ is an odious hotch-potch of pseudo sciences like craniometrics, phrenology, and eugenics. Colonialism simultaneously holds that First Peoples will disappear due to the ‘natural’ superiority of whiteness; and that passing laws which authorise governments to destroy First Peoples societies by force are a legitimate role of parliament and the courts. The fragmented incoherence of this is glued together by racism.

At global level, the evolutionary paradigm was rejected by the Martinez Cobo study (1986) and subsequently the United Nations Declaration on the Rights of Indigenous People (UNDRIP) (2007). Yet ongoing acceptance of unscientific and destructive mind-sets remains difficult to dislodge from the minds of ‘democratic’ polities.

In 2007 in Australia, the incoming Labor government campaigned on a platform which included signing the UNDRIP and apologising to the surviving Stolen Generations and their descendants. The Apology was a Bringing Them Home (1997) recommendation, which reported on the trauma caused by those eugenicist laws and practices.

On 13 February 2008, Prime Minister Rudd delivered the Apology alongside Closing the Gap, a policy to address First Peoples health and well-being, and a commitment to begin work towards recognising First Peoples in the Australian Constitution. The fiftieth anniversary of the 1967 referendum was visualised as a timely point to achieve this constitutional recognition.

That deadline falls this Saturday 27 May 2017 and will not be met. This is not of huge moment. The date was largely symbolic, and if there is one thing the Black leadership of the Referendum Council has worked for, it is moving the campaign beyond mere symbolism.

White leadership failures

Recognise began life as a government-funded feel-good campaign, with a social media strategy relying on cute Black children and sports stars. As with federal governance generally, it has been derailed by the chronic instability that has seen five Australian Prime Ministers in ten years. This dismal display of political incompetence at the highest levels is an emphatic failure of a system that installs people like Tony Abbott and Donald Trump as national leaders.

Meanwhile, a group of Aboriginal and Torres Strait Islander people began re-shaping Recognise. Predictably, conservative cheer squads complained that Black leadership of Black Recognition is ‘divisive’. This incoherent nonsense is part of that racist ‘glue’, and demonstrates the incapacity of whiteness to identify itself as a barrier to meaningful change rather than the (paternalistic) pathway.

Nevertheless, twelve Referendum Council Dialogues were conducted across the country, and will culminate in a National Convention on 26-28 May. The date – the 50th anniversary of the 1967 referendum – does carry symbolism. It remains to be seen whether an agenda beyond symbolism emerges from the conference that white Australia can accept and will endorse.

Malcolm Turnbull and Bill Shorten have ‘respectfully declined’ an invitation to the Convention. According to the Sydney Morning Herald, they ‘discussed their attendance’ (ie, non-attendance) and determined that their presence ‘risked being interpreted as an attempt to influence the outcome’. The evidence proffered for this ‘risk’ was, of all things, past obstructionism by former Prime Minister and racist curmudgeon John Howard.

Howard sailed into office promising ‘bucket loads of extinguishment’ after Native Title was recognised at common law by our High Court (Mabo v Queensland (No. 2) (1992)) and by statute in the Australian Parliament (Native Title Act 1993 Cth). He disgraced himself at the Bringing Them Home conference, thumping the lectern, hectoring people he was incapable of seeing as equals. He gracelessly refused to endorse the Council for Reconciliation final report (2000) or cross bridges alongside hundreds of thousands of Australians. In 2004 he campaigned on a promise to dismantle the Aboriginal and Torres Strait Islander Commission (ATSIC), citing the usual racist tropes on internal governance. By 2005, this national representative body elected by First Peoples was gone.

Another way?

It is possible the National Convention leaders invited Turnbull and Shorten as a pro forma gesture, on the understanding it would be declined. Maybe backchannel negotiations sought to head off the screeching commentariat who, despite being entirely absent from any constructive debate, would complain loudly at any perceived slight of excluding the white leadership. The delegates may well be relieved to not have to allocate valuable time and expertise on walking Turnbull and Shorten through the intricacies of the issues at hand.

It seems equally likely that the invitation was issued with a strong sense of protocol, and came with generosity of spirit or at least acute pragmatism, the sure knowledge that major party support is an essential component to effecting meaningful, functional, positive, change.

More details may emerge, or not. I am not a representative, and this is not really my concern. The question that keeps recurring in my mind is this: can you imagine Whitlam or Keating declining an invitation from Black leaders, on the fiftieth anniversary of the 1967 referendum, to consider recognition of First Peoples in the Australian constitution?

Turnbull and Shorten are highly remunerated by the public purse. They lead the two most powerful political organisations in the country. Did they consult their front bench? Their base? Decide on an avoidance strategy given the certain fractiousness of their caucuses?

The ‘respectfully decline’ response strikes me as cowardly and politically lazy. These men could each take the matter to his party room and table a position. They could seek the authority of a caucus vote to attend for, say, a half-day, and commit to respecting the Dialogues as a process, to Black-led reform in principle, if nothing more.

Nobody is asking Turnbull or Shorten to endorse an outcome which has not yet been determined. That would be pre-emptive and illogical, and set up future failure, which would be entirely inconsistent with the Black leadership on the issue to date. Rather, these men have been invited to an important meeting, where they could listen and learn, and commit to the process, within the constraints of their political positions – constraints of which the Black delegates are entirely cognisant.

Yet instead of sitting down to hear the prospects and implications, Turnbull and Shorten have declined to be at the table, presumably on the assumption that they can re-join the dialogue later – and dominate debate via the positional power of their parties. Meanwhile, they have dealt themselves out of the current conversation, literally a conversation with currency.

Why?

There might, after this weekend, be a proposal on Treaty or an Aboriginal and Torres Strait Islander representative constitutional body, or First Peoples sovereignty. Who knows? Both have been written about extensively and authoritatively for years. I recommend Irene Watson’s Aboriginal Peoples, Colonialism and International Law: Raw Law, and Treaty and Statehood by Michael Mansell. I am writing here only about the proposed referendum on constitutional recognition, and the process.

If Treaty or Sovereignty emerge via consensus this weekend, that is for those who are present and their peoples, their constituencies, those to whom they are accountable. This is not a matter of race, or inclusiveness or divisiveness. It is how conventions work. But either way, because they have declined to attend, Turnbull and Shorten can not respond with integrity, whatever the outcome. Given the restless and racist component of their constituencies (inside and beyond the parliament), Treaty and Aboriginal sovereignty are their greatest unspoken fears. I think this is the real reason they ‘respectfully declined’.

And here we are

Two avowed political opponents discussed an invitation from Black leaders on justice for First Peoples and constitutional change. They jointly declined, citing racist obstructionist John Howard. Perhaps the white leadership is incapable of bringing the mainstream polity to any place beyond mere symbolism. If this is the best leadership they can do – and the evidence suggests it is – there are no grounds to claim that they support Recognition at all.

 

 

Black is the New White: Brilliant, brave, spectacularly good

[CW: one spoiler]

If good theatre gets us pondering, Nakkiah Lui’s Black is the New White comes crashing into the imagination like a runaway train.  It is spectacularly good theatre, intricately intelligent theatre. It is so fantastically funny that inhibitions (like me being that person with the too-loud laugh) fall away.

The casting is perfect, the wardrobe is perfectly assembled, the choreography hits every note. I have never seen a better set piece than the violence-prevention family conga line (go see it for this alone). Given the joyful sound of the audience clapping along, superbly directed by narrator Luke Carroll, I was not alone there.

Lui has written that cleverest of comedy, the kind which works at so many levels that you could go along with old friends or your mum or a group of students and have as wonderful a time with any and all. When Charlotte (Shari Sebbens) the native title lawyer introduces her fashion designer sister Rose (Kylie Bracknell Kaarljilba Kaardn) to her white boyfriend, Rose skips through the accepted niceties in rapid time to the crux: “but where are you really from? You’re white, you must be from somewhere”.

Along with the rest of the (mostly white) audience, I cringe in recognition and can not stop laughing. It is an inescapable truth that when moving through the worlds of Sydney, of Black and white Sydney, there is one social requirement above all others: have ready a coherent answer to the question ‘where are you from?’

Black is the New White defies singular classification, but it is above all an ensemble piece. The cast, the set, the script – all are the star of the show. The set sends out signals like a lighthouse: a kitchen-dining-open living space hosts most of the action, but it is the wooden staircase, on which the women’s heels tap out identity morse codes, that gets me thinking. Black culture tends towards inclusiveness inasmuch as whiteness tends toward hierarchy and exclusivity, and here the Upstairs/Downstairs evocation is miles and miles from class-ridden white ways. This staircase is a good staircase, to borrow a phrase, and the framed black-and-white photos at its foot reflect family, community, and history, the title of the play and its core themes.

The script delivers lines about holiday houses which tell us this is no stereotypical Black family. The Gibsons are Black, and ensconced in middle class comfort – here is the spoiler – thanks to the speech-writing skills of mum Joan (Melodie Reynolds-Diarra), speeches which shored up the post-sporting-great political career of dad Ray (Tony Briggs). This is a closely kept secret for much of the play.

In a glorious metaphorical mirror, the white family are beneficiaries of a grandparental trust, a trust which ensured the gnawing emptiness of white mum Marie (Vanessa Downing) and shored up the political career of white dad Dennison (Geoff Morrell).

Cue meritocracy mythology motif, where black dad Ray touts the value of hard work with disturbing complicity. The irony is that Ray would be a rare case of myth meeting truth – he has worked hard for everything he has, including the holiday house – but for the unacknowledged speechwriting talents and hard work of his wife.

This incorporation of intersectionality – what scholars call the intersections of oppression, in this case racism and sexism – is so neatly done it takes my breath away. Every year, when feminist legal theory week rolls around (I teach jurisprudence), I agonise over how best to present work by black feminists when my interpretive lens is, by definition, white.

But I digress (to centre myself, as white feminists are wont to do. Lol. etc.)

So. The two dads, old parliamentary foes, have recently rekindled their animosity on twitter, a digital platform which has also sent one of those Joan-authored speeches viral. If the in-jokes to black and white Australia are breathtakingly accurate, the social media in-jokes are the 21st century topping. Especially when the online dating activities of tottering Stepford-wife-like Marie take hilarious twist after daring turn.

It is from the yet-to-be announced engagement of Charlotte and Francis (James Bell) that Lui draws out her richly layered theatre of the farcical, the slapstick, the tragic, and the absurd. The soliloquies to black community, the intellectual struggle between culture and class, academia and law, politics and media, are gripping in their depth and accuracy. ‘How can we change the law if we can’t even change the conversation?’ asks Charlotte, and the question hangs in the air. How, indeed? The seamlessly narrated storyline and rapid one-liners are just as stunning. When Dennison demands of Ray ‘Is it because I’m white?’ the answer is ‘No. It’s because you’re a cunt’.

The nods to the classics (Guess Who’s Coming to Dinner, Love Actually) and recognisable Aussie cultural oddities (footy hero turned merchant banker) pile up so quick – almost too quick to take in – and with pinpoint accuracy. As a hilarious exchange about WAGs and handbag husbands unfolds, Dennison harrumphs in Wildean homage ‘a handbag?’ His literalist take is funny enough as a stand-alone moment, but when ex-footy hero Sonny (Anthony Taufa) discovers his true ancestry, we are reminded that the dénouement was signalled by this smartest of scripts.

As an irregular theatre-goer, I probably missed other similarly delicious details. I can say that the play is [David] Williamsesque – and I mean that in the most complimentary possible way. It skewers the white theatre-going classes, but the real achievement is Lui’s fearless engagement with racial identity issues that perennially emerge, continuously unresolved, in Australian discourses and public debates.

I can not praise Black is the New White highly enough, and recommend it to anyone who can get along to see it. This show is unquestionably one of the best evenings of entertainment I have ever enjoyed. I say that as a person who has enjoyed ensemble comedy at the same venue (many a Wharf Revue) and Black art across the country (Black Arm Band at the Sydney Opera House, Archie and Ruby at the Armidale and Tennant Creek Showgrounds…) I am an enthusiastic, if too seldom these days, audience member.

Black women’s voices

To borrow a phrase, so many Black women share so much with so many, like Leah Purcell and her superb Black Chicks Talking (2002). For me, that amazing production connects to the 1997 Festival of the Dreaming ( I missed Box the Pony – don’t ask) leading up to the Sydney Olympics. I cry every time footage of Cathy Freeman winning is replayed. My daughter was breastfeeding when Cathy won that race, and she and her brother have won many an Athletics gold trophy since. I know in my heart that the Festival of the Dreaming and the Sydney Olympics and Black excellence today were intended to be connected, and are connected.

For instance in late 2013 we went to the opening of Corroboree Sydney at the wharves under the Bridge. There was Leah Purcell, artiste extraordinaire. Redfern Now had just screened, and both my kids were allowed to sit up late and follow its stories. Leah took a moment to say hello to them. We were star struck that night at the Pier, and have been ever since, seeing her work directing incredible productions like Cleverman (age permitting).

There are two perspectives that I think should be in this post because, as is often the way of these things – a kind of social media confirmation bias – in the days leading up to seeing Black is the New White, I clicked on two articles which mentioned the brilliance and bravery of Nakkiah Lui.

One is Blak Critics: Flipping the Power Play in the Arts by Timmah Bell in Overland Journal, where Bell outlines the endemic problem of white dominance, as well as some exciting developments towards shifting that status quo:

A twenty-eight-year-old Gamilaroi/Torres Strait Islander woman is creating dynamic black theatre and television – painfully absent not that long ago – but there are only white people to review it. Her career rises, and we watch in frenzied adoration, finally seeing ourselves represented in ways that celebrate our humour, spirit and complexity. But the work itself is still valued through a white lens. As many Aboriginal artists, designers and writers have suggested, these critics want our work, but on their terms. Our views on our own work and how it should be positioned within white institutions is often neglected.

It should go without saying that Aboriginal artistic excellence is as creative and enduring as it is undervalued. What Bell then reports encapsulates approaches that are advocated by Aboriginal people across multiple fields in multiple ways, while simultaneously being specific to the skills and professionalism of Black artists:

Indigenous-run and -led festivals are beginning to reshape the operational structure of the sector. The inaugural First Nations Festival Yirramboi, led by creative director Jacob Boehme, is starting to flip the power play. One of the key principles of the festival was the establishment of Blak Critics, a program supporting nine Indigenous writers (including me) with a public platform for creating critical review and conversation, from our perspectives… Participating in Blak Critics was an opportunity to destabilise mainstream practices. It was a space and program where our voices, values and cultures were centered… From the first workshop new methodologies started to emerge. Muruwari playwright Jane Harrison quickly observed that we need to move away from the ‘softly softly’ approach too often used by white critics writing lukewarm, gentle reviews out of fear of being seen as racist, as if we lack the professionalism to handle rigorous judgment. But of equal importance was permission to critically engage with Aboriginal work with honesty, and in a reciprocal way, which would build and strengthen the artist’s work, not hurt or reduce them to a star rating.

Another is State of the Nation by Nayuka Gorrie, who writes:

In ecology there are things called bio-indicators. They tell us about the state of a particular ecology. For example, the presence of sensitive macroinvertebrates in a water body suggests that it is healthy and clean. It is my belief that women are one such indicator for the state of the nation. We are some of the most vulnerable people in the country; more likely to experience sexual abuse, family violence, are less paid and utterly underappreciated. We are at the intersection of different oppressions; being black and woman. Even more so if you are a trans woman, queer, poor, criminalised or have a disability.

Gorrie describes being a black woman in Australia and thus black womanhood. In being part of a conversation with black people that critiqued the ABC comedy ‘Black Comedy.’ In particular the critique was of tidda Nakkiah Lui… she writes, When I pushed on this the people giving the criticism just said she took it “too far.” 

These articles reflect contemporary dilemmas that are invisibilised in the mundane and consistently uncreative conversations which dominate black-white relations – which dominate all conversations – in this country. From our politicians to the panellists who comment on their follies, from the white academy to white science to every white institution, the dominant narrative is unhelpful, predictable, destructive, and dull… and built on colonial tropes and lies that refuse to die.

Compare this to the Aboriginal voices, the voices of women like Nakkiah Lui and Leah Purcell, of Timmah Bell and Nayuka Gorrie. These women speak a clear sense for anyone whose ears are open. Compare this to tired old phrases and trite observations like ‘cut-through’ – for example, ‘the electorate has stopped listening’, or ‘the government needs to cut through with its message’.

Caveats

Irregular, seldom – these are the words I choose to make clear that I am not an expert on the arts. The one ‘professional’ role I ever held was to observe the making of a play by Milk Crate Theatre, a company I came to have the greatest respect for, as a researcher on a cultural studies project. This inspired explorations and reflections in many directions (my usual role is a lecturer in law).

One detail I stumbled across at the time is that the theatre of Dionysius on the Acropolis is named for the god of grape and grain (ie wine and whiskey). So what? you may ask. Well, Dionysius is anglicised to Dennis, and when Dennis was beatified (made a saint) he became St Dennis.

The contraction of St Dennis is Sydney. This is the kind of thing that lawyers like me love. To get to see Black is the New White at the Wharf, this most Sydney of things to do, a Black theatre production that is asking and answering the big questions about Black and white Australian identity, an identity that insists on what white Australia forged while awash with grape and grain (hello Rum Corps), and promptly projected its crimes onto Blackness (there was no wine nor whiskey here before 1788), beneath the lights of Sydney Harbour, at the Sydney Theatre Company…

There is meaning to be distilled here, and distilling meaning from cultural experience is what cultural researchers do.

Among the most ancient of crafts, there is a special place for theatre in the human memory, and this is a microcosm of the physical spaces where theatre is done. A theatre may appear deserted, sitting quietly on its city block or in a suburban street or perched on a pier over Sydney Harbour. Its best moments are ignited by those marvellously eclectic casts of people who are drawn to doing theatre, and the audiences who love them. But the theatre is never inert, it is always alive somewhere.

The Wharf Theatre is always alive, and for that alone I love it. It may be difficult to imagine now that the decommissioned piers along Hickson Road sat dormant for decades, so deplorable is the waste of those years. For a Sydneysider as steeped in history and as old as I am, crude neglect and criminal mismanagement is as much a part of Sydney as the glittering harbour and glorious venues, and has been since 1788.

Theatre settles itself in the collective memory of people and place. Wherever there are people, bush clearing or campfire, city or suburb, town or village or nomansland, there is theatre. It is by drawing on our collective humanity that good theatre is made.

All this is by way of saying that Black is the New White is spectacularly good, it is an unqualified triumph, and you should totally go and see it. It is also by way of saying that through white eyes (the ones I have) Aboriginal art consistently showcases the wisdom of its ancient ancestry, while coming across as fresh and new. This is an art in itself: powerful and subtle, unique and universal, contemporary and eternal. It can be done, and probably can only be done – this well, like this – by custodians of the oldest continuing cultures on earth.

THAT bomb. What was it dropped for? Absolutely nothing

Is anyone else disturbed by how the decision of the USA to drop a Massive Ordnance Air Blast  on Afghanistan has disappeared from the news?

A week later (20 April 2017), Malcolm Turnbull said of Donald Trump and the Republican administration: ‘I trust the judgement of the American government… I trust the judgement, the wisdom, of the president’. That is a verbatim quote. How could anyone trust the judgement of President Trump; or surmise he has wisdom?

Even to a hardened politics watcher like me, waking up to the MOAB news on Good Friday was so shocking I spent much of easter scrolling through Trump tweets seeking clues. It is worth noting in this context that Trump will host Palestinian President Abbas at the White House on 3 May. This may be consistent with the observation that Trump’s domestic rhetoric is isolationist, while if anything he is escalating American military interventionism.

War hardware and war software: Bombs and propaganda

The MOAB is horrendous in scale. The Pentagon says it is the largest non-nuclear weapon in the US arsenal. It sucks the oxygen from the air and sets the rest on fire. It weighs 10,000 kilograms. It flattens everything within a one-mile radius in every direction. It costs US$16 million just to build. Like most such monstrosities, it was ‘originally’ built ‘as a deterrent’.

‘The goal is to have the pressure be so great that Saddam Hussein cooperates,’ said Defense Secretary Donald Rumsfeld in 2003.

Predictably, US and other western news sites fawned breathlessly over its size and power; and dutifully reproduced the White House message about precision and firsts (in combat, was the claim) and avoiding civilian casualties.

But the reasons offered were entirely vacuous. Not just strategy-free, like the 59 missiles dropped on a Syrian air-base near Homs on the chemical weapons pretext. The chemical weapons ‘red line’ at least had a history of failed multilateralism and Putin-Obama negotiations. It was anchored in something of substance. In contrast, the two reasons put forward for detonating the MOAB were entirely without substance.

‘The US takes the fight against ISIS seriously’ said White House press secretary Sean Spicer. Well, yes, but our leaders have been saying that for years, with no apparent thought to how this plays for ISIS. But what had changed in Afghanistan? Nothing anyone was telling the public. The case is empty. Caves and tunnels. An American soldier was killed in the area last week.

One soldier? ISIS-K? Caves and tunnels?

Who outside of foreign policy circles had heard of ISIS-K before now? It is apparently two years old and operates in country bordering nominal American ally Pakistan. The same ally who sheltered bin Laden and for its trouble saw a US Forces raid on the bin Laden compound in Abbottabad, complete with extra-judicial assassination and reported dumping of the body at sea. The same bin Laden who video-taped his ramblings in those caves and tunnels when they were populated by Taliban fighters, like the caves and tunnels fitted out by the CIA courtesy of the American public.

So the usual dishonest and violent American interventionism is present.

But the MOAB is not just another American mess, a real-life scene out of Team America: World Police, the one where Gary the actor is kidnapped in Egypt and US Forces swoop in and blow up half of Cairo, knocking the head off a sphinx. The MOAB is more than disproportionality, a war crime, although it is that. The MOAB is ‘use of force’ so out of all proportion as to be in another category of crime, on another level of wrongness.

There are echoes of the atomic bombs dropped on Hiroshima and Nagasaki, but without the preceding 6-year global bloodbath. That is not to deny the extent of slaughter America brought to Afghanistan and Iraq, but to point to the sheer scale of this horror at this time. Even in the world of an American president who rarely says what he means or means what he says, the MOAB drop seems incomprehensible.

Former Afghan President Hamid Karzai called out Trump for using Afghanistan as a bomb testing ground. While Karzai is not of clean hands when it comes to brinkmanship, on this occasion he articulated the major issues associated with such an extreme and destructive weapon. Unlike the breathless bomb-porn that dominated coverage in the west, Karzai pointed to Afghani sovereignty – imagine how America would respond to such an attack on its soil – and to the soil itself, to the environmental and inter-generational consequences.

This was an inhuman act, a brutal act against an innocent country, against innocent people, against our land, against our sovereignty, against our soil and against our future… A bomb of that magnitude has consequences for the environment, for our lives, for our plants, for our water, for our soil – this is poison – Former Afghani President Hamid Karzai, 16 April 2017

We could use more truth like this over the endless ‘analysis’ from the no-choice-but-to-bomb school of war journalism, an inherently biased approach which showcases the violent views of military ‘experts’ while ignoring conflict resolution approaches and peace scholars.

One other disturbing observation is that the MOAB has all but disappeared from our airwaves and newsfeeds. The (predicted) North Korean missile ‘test’ (explosion, detonated by North Korea), the Turkish referendum which Erdoğan could only have scheduled for Easter Sunday well in advance, eclipsed the horror in Afghanistan.

Less than a week later, the Pentagon is claiming that ISIS used a ‘chemical attack’ on an Iraqi contingent that included US and Australian ‘advisors’ in Mosul – but they are all unhurt. What even is this? Did the MOAB not warn ISIS off using chemical weapons, then? Oh no, that’s right, that was Assad? Will Trump bomb Mosul back to the stone age too? Oh no that’s right, he bombed caves and tunnels – stone age technology – back to the stone age.

How to make sense of it all?

My instinct was to return to Trump’s words and deeds. Trump is Commander-in-Chief. It is Trump with whom the buck stops for the MOAB, no matter what is reported as to which general gave what order. If Trump really did delegate that level of authority to someone else, that is an abrogation of his responsibility, but it is still his abrogation and his responsibility.

The most obvious Trump characteristic is that his decisions appear largely random, or, if there is any method at all, his decisions tend to further his personal rather than the national or global interest. How to test whether Trump is issuing orders at random? Does he just like blowing up people and their lands, their homes? The record is opaque, and we must assume deliberately so, given the conventions Trump has flouted, the rules he simply ignores, the failure of institutional checks and balances to curb his excesses.

This is not to suggest that Trump is some kind of evil foreign policy genius. Quite the opposite. It is to observe that Trump is doing what he has always done: operating in the interests of Donald Trump.

Abridged Timeline: on Twitter and in real life

It is a truism that the Trump Twitter timeline is as good a window as any into the thinking of the President. I do not follow either his personal or POTUS account, but trump Twitter, and reporting about Trump twitter, is impossible to avoid.

The first thing I noticed was the contrast between domestic and foreign policy tweets.

In the past fortnight, Trump has met with Egyptian President Al Sisi (4 April), Jordanian King Abdullah (6 April), Chinese President Xi Jinping (9 April) and NATO Secretary General Jens Stoltenberg (12 April). Given the general purpose of such meetings, there would be some agenda with individual countries, and some with the relevant region. In other words, Trump here is skirting around Syria, North Korea, and Turkey.

Each foreign policy tweet is interspersed with what in Australia is called feeding the chooks, although in Trump’s case he is feeding the Fox [News]. These domestic nonsense tweets contain shallow statements, heavy with exclamation marks. Each bears the hallmark of Trump self-expression: his unquantifiable relationship with truth. Trump is less reliable than the proverbial stopped clock: he might be right twice a day, but he might not. Whether he is being serious – whether he means X or will change his mind on Y – is so randomised that it is impossible to tell with any confidence.

But those are the domestic tweets.

The tone and spacing of the foreign policy tweets indicate some oversight. There is a whiff of daughter Ivanka about it (see this by Anne Summers on her role). Her husband, Jared Kushner, continues to be promoted. According to the not-credible source Eric Trump, it was a ‘heartbroken and outraged’ Ivanka who persuaded dad to order the 59-missile attack on a Syrian air base. Certainly the missile attack near Homs lacked strategic coherence – the calls for Trump to ‘reveal his strategy’ assume he has one, or one he would reveal to the media and the public. Meanwhile, Jared headed off to Iraq wearing a flak jacket over his Ivy League uniform outfit.

The only real certainty is that Trump is not operating according to conventional priorities. As mentioned, he is in all likelihood operating according to self-interest rather than global or American interests. This is not to say that a Cheney- or Rove-style Washington Consensus is a force for good in the world; only that it is knowable in a way that Trumpism is not.

It was the 6.5 minute Trump speech addressing King Abdullah from the Rose Garden podium – the link posted to Twitter at around 5:00pm on 5 April – that contained the most chilling clues to the MOAB drop. The speech is irredeemably awful, repetitive and garbled. It is also – with hindsight, of course – quite chilling. It is worth analysing even in retrospect, I think, because we now know that the failure to take Trump seriously, to really listen to the meaning of his words, was a major factor in his electoral success.

Annotated transcript, Trump speech addressed to King Abdullah of Jordon.

“…before we begin let me say a few words about recent events. Yesterday chemical attack, a chemical attack that was so horrific, in Syria against innocent people including women, small children and even a beautiful little babies their deaths was an affront to humanity. These heinous attacks by the Assad regime can not be tolerated…”

Trump then gets back on script, although it seems unlikely the author included quite so much repetition, notably of these terms:

  • Very very
  • Many many
  • I can tell you that
  • Tremendous
  • Believe me

He also co-opts the King into his implied future actions several times. Can we assume the King agreed to this beforehand? That the King knew this co-option would later include dropping the largest non-nuclear US bomb on Afghanistan? For example:

“Your majesty, Jordanians are known …and I have to say this, for their fighting ability. And you are a great warrior, and we appreciate it, thank you.”

Trump goes on: “[The US] has looked to Jordan as a valued partner, an advocate for the values of civilisation, and a source of stability and hope.” This is standard western chauvinism, where civilisation has long signalled the ‘othering’ of the East (or the ‘Orient’), and implies a range of imageries especially barbarism, going back to at least the crusades.

“As you know”, says Trump, “the Middle East and the entire world is faced with one of its gravest threats in many many years. Since the earliest days of ISIS Jordan has been a staunch ally and partner and we thank you for that.”

This is standard wartime propaganda but Trump is also locking Abdullah into a pro-American corner. He goes further:

“In King Abdullah, America is blessed with a thoughtful and determined partner. He is a man who has spent years commanding his country, special forces. He really knows what being a soldier is that I can tell you. And he knows how to fight… The King has been a leader in calling for a plan to defeat ISIS once and for all. And I am with you on that, we’re both leaders on that, believe me. That’s what we speak about today and that is what we are going to do. And it will be a shorter fight than a lot of people are thinking about believe me we’ve made tremendous strides as we discussed.”

These are the key MOAB hints. Trump then brings together the tropes and the hints: “We will destroy ISIS [pause] and we will protect civilisation. We have no choice. We will protect [pause] civilisation. King Abdullah and I also discussed measures to destroy the evil, and ideology, that inspires ISIS and plagues our planet.”

Unless it is referring to an actual disease outbreak, plague is always a red flag term, long used by génocidaires.

Trump then uses the opportunity to speak to his domestic audience: “we also acknowledge the vital role that Jordon has played in hosting refugees from the conflict in Syria. We’ve just announced that the United States will find additional funds to Jordan for humanitarian assistance. This funding will help countries like Jordan host refugees until it is safe for them to return home the refugees want to return home I know that from so many other instances they want to return back to their home and that’s a goal of any [emph] responsible [emph] refugee policy.

Here, Trump is telling his voters that violent raids on undocumented migrants in the US will continue, and that is what the undocumented migrants – ripped from their homes, children left without parents – want.

Jordon is not only host to an enormous number of Syrian refugees. It has a huge Palestinian refugee population, and has had since 1948. This is how Trump segues onto his next chilling hint:

Finally, as we discussed, to advance the cause of peace, in the Middle East, including peace between the Israelis and the Palestinians, and I’m workin very very hard on trying to finally [emph] create peace between the Palestinians and Israel. And I think we’ll be successful, I hope to be successful I can tell you that. The king is been an entire, a really tireless advocate for a solution. He is gonna help me with that, at the highest level, and we will be consulting with him very closely in the days ahead.”

Trump separates the words ‘finally’ and ‘solution’ by a single sentence.

“King Abdullah I wanna take this opportunity to thank you for your partnership, working together, the United States and Jordan can work together, to help bring peace and stability to the Middle East and in fact the entire world and we will do that. Thank you very very much for being with us.”

Not that this analysis is especially revelatory. The US has brought violence and war to bear on the Middle East for as long as I can remember. We already knew Trump is aggressive and dangerous; that he is limited in his thinking, that his central organising principle is self-interest, that he is reckless and highly susceptible to being manipulated by less public characters.

But I am saying this: while the tone and syntax are quite similar, there is a sharp contrast between shallow Trump messaging on domestic policy (Jobs! I won! MAGA!) and his apparently garbled, but deathly serious, pronouncements on foreign policy. As the new week dawned, confirmation of US military aircraft intercepting Russian planes off Alaska was being reported by all major outlets.

The emphasis on confirmation is for a reason. As CNN notes in the first four sentences of its online report – above the fold, as it were – ‘Fox News first reported the intercept’. Maybe Fox just got the scoop, who knows. But I suspect that rather than looking for strategy on missile strikes, this is closer to what Trump strategy looks like.