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 Aboriginal Child Placement Principle is Unenforceable at Law

Late last year, the Nationals member for Lyne in New South Wales was appointed assistant minister for children and families. In a tired and predictable charade, this comfortable white man appointed to a well-paid position is learning for the first time of harsh conditions in which many First Peoples live since the theft of their country. When I lived in Alice Springs in 1994-95, which was peak Mabo-scare time, it was then-Opposition leader Alexander Downer who took out his hanky while touring remote communities.

Indigenous poverty is a direct result of colonisation. There was no alcoholism, and there were no hungry children, here for 65,000 years. As Senator Malarndirri McCarthy recalled at the annual Dr Charles Perkins AO Memorial Oration in 2016, one of Dr Perkins’ key messages was to ‘never leave anyone behind’. This is not a political slogan, as it would be in my culture, but a central organising principle of Aboriginal societies.

Junior minister David Gillespie says he had his ‘eyes opened in the last couple of weeks’ to pervasive problems which have never been solved by comfortable white men recently appointed to well-paid positions and discovering for the first time what First Peoples have known all their lives and have tried, with staggering patience, to tell government and white Australian society.

He added “If a child is being raped we can’t just say it’s OK on cultural grounds.”

According to SBS (link above): ‘Dr Gillespie believes the need to keep Aboriginal children in Indigenous communities “doesn’t trump other issues’”… He believes it’s “pretty poor” only 143 of the nearly 48,000 Australian children in foster care last year had been adopted.’

In news that will surprise no-one, Channel 7 Sunrise invited two white people to comment on whether white families should be ‘allowed’ to adopt Aboriginal children. There is no law against the state placing Aboriginal children with, or being adopted by, white families, although it is difficult to tell whether the Minister understands this.

The Minister and the Media

The first task is to call out the shoddy breakfast television show Sunrise, which many Aboriginal and other people have done, as in this Twitter moments. This is not cost neutral: responding to the endless, exhausting stereotyping of Aboriginal identity has a price.

Meanwhile, the nasty Sunrise segment opens up space on other media platforms for Gillespie to repeat his message; and for his message to gain traction and credibility. This has already happened with a soft interview on ABC24 asking whether ‘laws should be changed to allow’ white adoption of black children.

So another call-out is crucial, because the premises for Gillespie’s remarks are wrong.

The peak Indigenous body National Congress of Australia’s First Peoples swiftly released a statement, saying that Congress

“agrees that vulnerable children should be removed, but we are troubled by the knowledge from past Royal Commissions of the dangers of neglect and abuse perpetrated within institutions and of the failures of many out-of-home-care alternatives. We desperately need to know: where we are removing our children to?”

Congress’s statement underscores the fact that there is no evidence of Aboriginal people expressing the view that child abuse should be ignored on ‘cultural grounds’. In reality, there is footage from all over the country, most recently Tennant Creek, of Aboriginal people saying the exact opposite.

So who is Gillespie talking about? Well, he did mention [white] child protection workers expressing fear that they will be labelled racist for removing Aboriginal children, so maybe it is them. In reality, Aboriginal children are disproportionately removed for ‘neglect’, the most flexible, shall we say, ground for removal. In contrast, non-Aboriginal children are more likely to be removed for physical or sexual abuse.

As it turns out, these patterns of decision-making, and the ministerial and media focus on physical and sexual abuse, are racist. It is a function of imposing white middle class values and standards on Aboriginal families, of ignoring and erasing the ongoing trauma of dispossession and colonisation, and a failure of empathy. It is white savourism in compound, base, and damaging forms.

Meanwhile, the chatter sparked by Sunrise will cause more apprehension, fear, and exhausted resignation that the same fights must be fought over again just to keep Black children with Black families. The unfounded or fabricated impressions are broadcast to a receptively racist public, who uncritically consume messages about Aboriginal identity. The messages attack Aboriginal parents where it hurts any parent most: their children.

Here is a brand new junior minister for children and young people who has chosen to stigmatise and re-traumatise and gaslight Aboriginal people, blaming the Blacks for the failures of the state, and all the evidence shows that the state is a terrible, terrible parent.

The Minister and the Law

That well-paid white men seek media attention to drive their political ambition at the expense of Aboriginal children is not new, but it never gets any less revolting. Who had heard of David Gillespie before today?

Gillespie is a federal minister, but child protection is a state responsibility. So he is out of his jurisdiction, telling ABC24 he is ‘stimulating policy’ discussion. Thanks, minister. More seriously, the NSW Children and Young People (Care and Protection) Act 1998 does not create any enforceable rights regarding placement of Aboriginal children with white or Aboriginal families. This is a little-known but important feature of the Act.

The specific exclusion of enforceable legal rights or entitlements is in s. 7 of the NSW Act:

7 What is the role of the objects and principles of this Act?

The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

This section governs Chapter 2, which includes “Aboriginal and Torres Strait Islander Principles”. The Aboriginal Child Placement Principle is an important principle, enshrining in law a preferred mode of practice – kinship care – and was hard-fought.

The principle was agreed at national level and then enacted into state and territory legislation, a not-unusual federated model. It directs social workers to seek to place Black children who are removed with family or kin first, or Aboriginal households. Placement with non-Aboriginal families is meant to be a last resort.

There are similar provisions in s. 10A with regard to prospective adoption of Aboriginal children. Yet the Minister, while tending to conflate out-of-home (foster) care with adoption – which are very different for children, family, and carers – generated multiple headlines shouting Let White Families Adopt Aboriginal Children – Minister.

Where are we then?

There is no law to be changed, because there is no law barring placement of Aboriginal children with white families. No child protection worker has ever faced legal consequences, whether under the Racial Discrimination Act 1975 (Cth) or any other statute, for breaching the Aboriginal Child Placement Principle, because the [NSW] Act which contains the Principle specifically rules out the possibility of creating or conferring any ‘right or entitlement enforceable at law’.

The remarks by the minister (whether thoughtless, ignorant, or malicious) create the impression that Aboriginal families are uniquely deviant or incapable – when they have successfully raised their children and passed on their knowledge for a longer continuous period than any Peoples on earth.

The errors of law and fact implied or stated by the Minister have been enthusiastically repeated, first by the odious Sunrise and then by the rest as space opens up in its racist wake. Meanwhile, like many who enjoy the same demographic privilege as him, the junior minister for children and families appears to have strolled into his quarter-million-dollar-plus per annum position with an alarming lack of knowledge, experience, and empathy. At the same time, he has achieved several goals of most politicians. He got his mug on the telly, lifted his name recognition, and stamped his brand of paternalism on his portfolio. this was done at the expense of Aboriginal children, young people, parents, families, and communities.


Indigenous Peoples have the right to determine their own identity

One of the most persistent features of colonial jurisprudence is its aggressive insistence on defining colonised peoples on its own terms. In his 1797 work Law of Nations, Emer de Vattel conflated cultivation with civilisation, ironically presuming to define Aboriginal people by his perspective on their relationship to land.

In the same Anglo-European tradition, the British claimed this continent by citing terra nullius. This now-discarded doctrine of land belonging to no-one rested on a further fiction, this time of nomads.  The anglo-euro idea was that Aboriginal peoples aimlessly wander across country, a claim which quite literally could not be further from the truth. While many Indigenous cultures have as sophisticated land management and ecological knowledge as here, no human society on earth has a longer continuous connection to country than the more than 300 distinct Peoples of Australia.

Nomadism means a seasonal way of life anyway, rather than aimless wanderings, often disparagingly referred to as ‘walkabout’ (noting that it is entirely up to Aboriginal people to reclaim the word Walkabout on whatever terms they choose). But definitional accuracy is not a strong point of colonisers making bold assertions as to the culture and traditions of Black peoples. It is well documented that the most extreme forms of scientific racism – a fabricated human hierarchy with white men placed, by white men, at the top – were applied to First Peoples in Australia.

Alongside this recent history are post-war understandings of the right to self-determination, which is the cornerstone right specific to Indigenous Peoples. Self-determination is formally encoded into the leading international instruments of their kind, the United Nations Charter (Chapter 1, Article 1(2) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Article 3, signed by Australia in 2007.

When white law and society – the colonial state and social surveillance, each as invidious as the other – impose definitions of Aboriginality on Aboriginal people, we violate the general right to self-determination and the specific right of Indigenous Peoples to define themselves.

The colonial jurisprudence of imposing identity

The UNDRIP Article 33(1) states: Indigenous Peoples have the right to determine their own identity or membership in accordance with their customs and traditions. Yet settler-colonial nations insist on exercising – or abusing – the power to define colonised peoples. This is not some legacy of a bygone era. It is a continuation of the philosophy, law, and actions – the jurisprudence of the British invasion, attempted genocides, and forced assimilation.

To illustrate, many Australians are familiar with the Stolen Generations, but possibly without having contemplated the jurisprudence of colonisation. The Stolen Generations are made up of Aboriginal and Torres Strait Islander people who were forcibly removed from their families as children, and their descendants. This is formally known as ‘assimilation’. It is informally known as ‘breeding out the colour’, which is a eugenics program, as signified by the word ‘breeding’.

Forced assimilation in turn rests on widespread belief in scientific racism, an obnoxious and discredited but (not yet eradicated) school of thought that provided the philosophical foundation for Aboriginal Protection Acts and Aboriginal Protection Boards. These are laws and institutions of executive government. Finally, officers of those agencies, as well as police and missionaries authorised by the same laws, took children from their families, by force, on the basis of their Aboriginality.

This is how philosophy, law and practice operate together under the rubric of colonial jurisprudence. The rubric can be applied to all the ways colonial powers were directed towards First Peoples: from formal acts of dispossession like the First Charter of Justice to the earliest criminal prosecutions against Aboriginal men (see R v Murrell and Bummaree [1836] NSWSupC 35), from segregation in cinemas and public pools well into the 20th century, to the disproportionately high rates of incarceration, police brutality, and forced child removal to this day.

In all these cases and many more, governments and the laws they pass operate in concert with the academy, cultural institutions and society, to maintain dominance over colonised peoples

Defining Aboriginality in 2018

This background is by way of context to the current proposal to create a new Indigenous Productivity Commissioner position. The position will be created by way of a bill to amend the Productivity Commission Act 1998 (Cth). Typically of how government rates that which concerns Aboriginal people, the amendment can be found on page 45 of a 45-page document, the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 No. [blank], 2017 Treasury.

The Productivity Commission compiles data on Aboriginal people which it publishes in its biennial Overcoming Indigenous Disadvantage report. This is one of three publications which track Closing the Gap, which was established by the Council of Australian Governments (COAG) and announced in conjunction with the 2008 Apology to the Stolen Generations. It includes benchmarks like infant mortality, life expectancy, and education and employment levels.

The 10th Closing the Gap report was released on 13 February this year by a Prime Minister who arrived at the Anniversary breakfast for photo opportunities alone and departed without entering the hall.

Closing the Gap, along with the Indigenous Affairs portfolio and the Indigenous Advisory Council (IAC), sit with the Department of Prime Minister and Cabinet (PM&C). I appreciate that these institutional arrangements are dull as dull to most punters, myself included (Kevin Rudd sets out more detail and justification on Closing the Gap governance here). However, the enabling amendment to create an Indigenous Productivity Commissioner has given rise to considerable disquiet among many Indigenous people, as discussed in this broad-ranging article by Karen Wyld, a writer, novelist and consultant of Martu descent.

The public concern largely centres on whether government has unilaterally, without consultation, changed the way Aboriginal people are defined at law. Recall that Indigenous Peoples have the right to determine their own identity. Note that governments can not control what they can not define – legislation must have a subject, purpose and scope. As mentioned, colonial governments define Aboriginality for the purpose forced assimilation, a eugenics program that amounts to cultural genocide. These are not merely historical or legacy issues, but continuing, contemporary realities.

It is entirely logical for Aboriginal people to respond to a known threat, based on evidence, like the definitional amendments buried in the 5th Treasury amendment bill of 2017.

The new law, just like the old law

Those amendments just passed the House of Representatives, and merit closer examination as the bill proceeds to the Senate. It says:

1 Section 3 5


Indigenous person means a person who is: 

(a) a member of the Aboriginal race of Australia; or

(b) a descendant of an Indigenous inhabitant of the Torres Strait Islands. 

4 At the end of section 24 18


(6) At least one Commissioner must:

(a) have extensive skills and experience in dealing with policies and programs that have an impact on Indigenous persons; and

(b) have experience in dealing with one or more communities of Indigenous persons


There are two things going on here. One is the definition of Aboriginal and Torres Strait Islander Peoples. As Wyld notes, this is “not consistent with today’s standards [and] lacks awareness that Indigeneity is much more than descent, as it is linked to relationships, kin and community, and ongoing cultural practices”. The second is the continuing insistence by the Commonwealth that it is competent to define Aboriginality.

The definition of an Indigenous person at law is circular, and self-referential. A ‘member of the Aboriginal race’ in this context actually means ‘an amendment of this wording authorises the creation of an Indigenous Productivity Commissioner position and is consistent with section 51(xxvi) [the race power] of the Commonwealth of Australia Constitution Act 1901 and also the International Convention on Elimination on all Forms of Racial Discrimination’.

Except that is not what is going on at all. The new Commissioner role is not required at law to be filled by an Indigenous person. The amendment quite specifically says a person ‘with extensive skills and experience’ of ‘dealing with’ Indigenous communities.

In other words, a mission manager.

The three-part test

However, there has been some misunderstanding around the definition of Indigenous in the amendment, which at law subsumes rather than changes the three-part definition of Aboriginality: Aboriginal descent, self-identification as Aboriginal, and community acceptance as an Aboriginal person.

The three part test is often referred to as an ‘administrative’ definition, which is not correct. It was set out in full as far back as 1983 in section 4 of the NSW Aboriginal Land Rights Act, and the authority at common law is the High Court of Australia (Commonwealth v. Tasmania (1983) 158 CLR 1 at 551 per Deane J).

As such, reassurance that the amendment contains the three-part test is not, as Minister for Indigenous Affairs Nigel Scullion asserted, because it “is wholly consistent with the standard Commonwealth legislative definition used under both Liberal and Labor governments since the 1970’s (sic)”.

Further, as Scullion himself points out, this is a Treasury bill. Why, then, has Scullion been sent out to defend it? Surely the government would not establish a governance structure which enables interminable buck-passing between Treasury and the PM&C on an ‘Indigenous’ position – which is not an identified Aboriginal position – that it claims will ‘deliver better outcomes for First Australians’?

Surely not. But in among his paragraphs which do not accurately clarify the definitional issues, Scullion drops this gem:

Consideration of how to define Indigenous status in legislation is a significant matter and well above politics… [The Government] calls on Labor to immediately rule out doing a dirty deal with One Nation to change the legislative definition of an Indigenous person.

There has been much chatter recently about declining standards in public debate. Less clear is what was the previously high standard from which debate has declined? This kind of pompous innuendo is entirely consistent with the standard of rhetoric I have seen in 35 or so years following Australian politics, particularly from Conservatives.

More importantly, including the definition of Indigenous in the Treasury Bill merely scopes the requisite skills and experience in ‘dealing with Indigenous persons’. It is this contradiction that lies at the heart of community disquiet about the amendment. ‘Dealing with’ could include someone who has exploited Aboriginal people and damaged their lands, or as one Aboriginal colleague noted wryly, Twiggy Forrest could be appointed.

Meanwhile, inclusion of the definition limits the scope of the Commissioner’s role to monitoring Indigenous people and Indigenous communities, people who already experience extremely heavy surveillance from both society and the state.

The last word as the bill proceeds to the Senate goes to my colleague Lynda Holden, an Aboriginal lawyer and law lecturer:

“Aboriginal people know that if it is not an identified position, they are removing the three-part test. Because unless the Indigenous Productivity Commissioner is an identified Indigenous position, there is no need for the three-part test to be in the legislation. Much the same as the Minister for Indigenous Affairs is not an Indigenous person…

Both the Commissioner and the Minister should be an identified Aboriginal position”

Myths of Westminster democracy

Almost everything we are formally taught about our system of government is deeply anchored in vested dishonesty. All the formal claims to democratic principle fall short. Here is how those structural designs benefit as undeserving a character as Barnaby Joyce.

Like many Australian voters – or saintedAustraliantaxpayers™ as many choose to define us (taxpayers are everyone who buys anything other than fresh food so, you know, everyone) – I am incandescent at the mess caused by the current deputy prime minister and his senior coalition partner, the prime minister.

Malcolm Turnbull and Barnaby Joyce have less idea how to clean up this spilt milk than my teenage son wiping the bench after making two-minute noodles, which trust me is a very low bar. Both men, and both parties they head, and thus by definition all the dithering cowards in their caucus, are terminally and irredeemably incapable of completing the tasks we pay them big money to achieve. Like running the country.

Two of the most deeply held Westminster myths are especially relevant to the shambolic shitshow that is now Barnaby Joyce’s political “career”. For the sake of brevity – and sanity – I limit this post to these: ministerial accountability; and the public interest obligation of the fourth estate.

For the record, I was writing about the moral and political failures – same thing, when it comes to Pilliga properties and inland rail, CSG and Eastern Star and Santos, the Murray-Darling river flows and Wesfarmers and irrigation licenses and water theft and more – of Barnaby Joyce before it was cool. I also have a rogue theory on why Joyce chose to publicly concede his marriage was over after the 2 December 2017 by-election.

I lived and voted in New England for thirteen years and visit annually to see family, and this is what I think: Joyce would have won anyway, but the charade allowed New Englanders to deny, to themselves, official knowledge that they were re-electing a grifter and a fool who was quite obviously drowning in a mid-life quagmire of his own making.

Nobody wanted to know, because nobody wanted to feel the prick of truth as they stood by their leery, beery charlatan of a man, their representative clown of the first order whose crass and boorish rent-seeking ways were well-known, but who nevertheless delivered the pork from a hapless beholden Coalition government and the public purse. Plus they hated Tony Windsor for backing Gillard, despite the obvious integrity of his decision-making process.

The by-election charade was aided and abetted by corny sentiment and distant ignorance from political journalists too eager to go along with the rebuttable presumption that white rural folk have an ontological right to define themselves in opposition to city culture and in their own best interests. The entire exercise was a classic demonstration of white fragility: collective safeguarding of the farming lobby and vested constituencies from facing the realities of their shabby loyalty to a wholly compromised bacon-bearer.

Which is all very well as anecdotal observation by an unreconstructed city dweller: I only lived away from Sydney, in the northern tablelands and Northern Territory, for fifteen years which as everyone knows does not a country girl make.

The analysis, like the Joycean house of cards, requires structural support.

Myths of Westminster 1: Ministerial accountability:

The misconceptions around Westminster-model democracy are numerous, persistent, and huge. One of our most fondly held beliefs is that once upon a time, in a kingdom far far away, ministers in Westminster governments resigned for sins such as abusing the power of office, such as using their influence to obtain a benefit for themselves or others, such as misleading the parliament. The myth is enthusiastically prosecuted by politicians, political reporters, and the comfortable classes. It feeds the comforting notion that we live in a democracy with flawed but essentially sound leadership, institutions, and systems.

As English as cricket, ministerial accountability purports to rely on the honour of the honourable member. This necessarily requires the heroic assumption that all MPs have a sense of honour, which is demonstrably untrue. Logic therefore directs that the assumption be discarded and a different mechanism be instituted for dealing with ministers who can not meet ministerial standards, whatever that was before Malcom Turnbull added a ban on minister-staff sexual relations this week

There was no mention at Turnbull’s press conference of compliance and enforcement of his sex ban. What is Malcolm going to do? Bust Joyce in flagrante delicto and not sack him, like he did not do last week, last month, or last year, because of a coalition agreement not in the public domain?

Despite the usual ‘reporting’ of prime ministerial announcement, nothing has changed. The Turnbull sex ban is as effective as the Turnbull citizenship audit, and no doubt came from the same advisory source. So much efficacy.

Like centuries of ‘reform’ before it, the sex-ban relies on another furphy that wafts around misguided notions of ministerial accountability. Contrary to popular belief, the real test is not ministerial behaviour but whether the minister gets caught. George Brandis mislead parliament over the exit of Julian Gleeson SC from the Solicitor General’s office and was rewarded with the London High Commissionership.

Hilariously, Joyce is the batsman who snicked the ball which was caught behind but does not walk back to the pavilion when the umpire shakes his head… then retires hurt.

It is just not cricket. But because it originates from the same source as cricket – the breathtakingly hypocritical privilege of upper class Englishmen – the myth of accountability is maintained. Some behaviour, somewhere, is cricket, the story goes – and we all somehow, miraculously, know what that behavioural standard is.

This is why the accountability myth is maintained not only by political elites but also by punters for whom the system is not an abusive monolith designed to criminalise and punish life circumstances.

For those who are systematically oppressed by Centrelink, child protection, Homeland Security, police and courts and prisons (to name a few), naïve faith in democratic principle is not an option. For most people who fall outside the demographic norms of its originating template – Westminster Parliaments comprised of property-owning white males – government is not benign but oppressive. It can be literally a matter of survival to not assume that government is well-meaning, or honest. If we believe Centrelink is necessarily right about a debt notice, we could become homeless or suicidal. If we believe the state will not brutalise our family, they could be killed by its agents.

Barnaby Joyce does not get this. He is entirely unaware that marriage and relationship breakdown is a primary cause of homelessness, especially for women and children escaping violent men. He told his matey Maguire story with zero insight into how life can hit people experiencing the emotional pain of separation and a lot more besides what a philandering fool like himself, often through no fault of their own, go through to survive. Joyce claimed it is ‘in the ballpark’ to be offered free rent on an executive townhouse while collecting upwards of a million dollars a year in publicly funded salary and entitlements when he felt sad.

It is patently absurd to hold onto the idea that a principle, ministerial accountability, will compel a proper response from Barnaby Joyce to being publicly exposed as a rorter and adulterer. The falsity of the assumption is borne out by Joyce’s response and that of the Prime Minister. Instead of falling on his sword, Joyce has taken a holiday. Meanwhile, Turnbull announced a wholly ineffective – because it is wholly unenforceable – rewrite of his sagging, lagging ministerial code of conduct.

The Fourth Estate

The role of media as the fourth estate, fearlessly reporting in the public interest, holding politicians to account, is pivotal in this context. According to principles of Westminster democracy and doctrine of estates, it is the task of political reporters to investigate allegations of impropriety, to know the official code, to question ministers, and to inform the public of how suspect decisions and actions measure up against the stated standards.

It then becomes a matter of whether the minister in question can withstand the pressure, rather than honour the fact that he felt the snick and knows he is caught out. Over and again, as from gallery veteran Michelle Grattan and Fairfax prince James Massola, we heard that Barnaby Joyce was on a knife edge. He could not possibly survive another transgression, it was pronounced, as further transgressions emerged by the minute.

The next step can take numerous forms. The transgressor might resign from the ministry, or from his party, or from the parliament. He might go to the backbench or to the cross-bench. He might be rehabilitated like Arthur Sinodinos (before taking sick leave) was and Abbott wanted to be; or embark on a post-parliamentary life like Sam Dastiyari.

This step is not determined by honour, or principle. It is determined by what the party numbers men, the pollsters, and the political press, decide is worth pursuing, or can be ridden out.

Such kid-glove treatment is not available to women, or anyone left of Barnaby Joyce, Andrew Robb, or John Brogden. In fact women, like Julia Gillard and Kristina Keneally, were regularly pilloried when there was no suggestion of impropriety other than in the fevered imaginations of their political opponents. The inherently conservative political press duly publish any old innuendo or nasty sexist claim. How would Bill Heffernan know whether Gillard is ‘deliberately barren’? Why publish slur after slur linking Keneally to the odious Eddie Obeid when the official body charged with investigating such claims, the NSW Independent Commission Against Corruption, specifically praised the credibility of her evidence when questioned about him?

Why indeed?

The upshot

In contrast, conservative white men are invariably extended benefit of the doubt ad infinitum, and their feelings handled delicately. The media attention and public opprobrium are often said to be punishment enough. The wrong-doer is re-presented as a victim of the harshness of the spotlight. This is happening to a degree for Joyce, but his star is tainted. Independent news sites and social media are operating to strengthen ministerial accountability. Great, right!?

May the mainstream press and his Coalition colleagues find their spines. It is not difficult to discern that Joyce has behaved, and been caught behaving, in such a way that would compel an honourable man, by Westminster principle, to resign

Ministerial accountability is to Westminster democracy what meritocracy mythology is to liberalism: a convenient lie which operates to shore up the positional power of an already very comfortable class of persons. Joyce is in this class of persons. Nevertheless, even though current reports say Joyce is away for a week, I reckon he is gone from politics for good. And if he is not, he should be.



Politics 2017 Finale: The Bin Fire Edition

So much to take credit for, so little effort! A Royal Commission instigated by a Labor Prime Minister; a Yes campaign in which the work done and harm suffered was by people other than the political class; a by-election won by a conservative man called John; a MYEFO presaged by strategic leaks to produce misleading headlines!

All bundled into a convenient narrative of the prime minister getting his thirtieth chance or his fiftieth reboot or his mojo back or whatever. It must be quite something, to repeatedly, endlessly, receive the benefit of the doubt on a national scale. Especially when any lingering doubt has long since departed the minds of thinking observers.

Because what the prime minister wants (ending the year on a “high note”) is indistinguishable from the national interest, right?

Yeah nah.

This month, between the house and the hustings, many long-term issues – the Uluru Statement, off-shore refugee camps, the NDIS – were put to the prime minister in a solo appearance on the ABC QandA program. It was a golden opportunity to show the intellect and statesmanship that allegedly forms part of his political repertoire.

He didn’t though, because it doesn’t, and he can’t.

The Terrible Show

Turnbull oozes a smugness that many mistake for charm. Then someone holds him to account for some dodgy nonsense he has said, or his government has done. Suddenly the smug-charm turns to outright condescension, he belittles and bullies, manipulates facts, and misleads his audience.

When host Virginia Trioli asked about a recording which, the evidence suggests, must have been leaked by security services, Turnbull implied she was impugning the spooks. He told Iranian Australian and ship-wreck survivor Yaser Naseri that he cares about asylum seeker deaths at sea (he doesn’t); he told Tommasina Owens of his fine grasp on the difficulties faced by her aging father caring for her brother with severe disabilities (he doesn’t). He did not answer Michael Doyle on his future vision for recognising Aboriginal and Torres Strait Islander people (he couldn’t).

This bonfire of vanities culminated when Teela Reid, who participated in the Regional Dialogues, asked about the Uluru Statement. After reeling off the usual spurious points – mischaracterising the Voice to Parliament as a House of Parliament (it isn’t); asserting that Indigenous MPs represent Indigenous constituencies (they don’t) – the prime minister used a technique called gaslighting.

Gaslighting is when the speaker not only distorts the question (“straw man”) but also seeks to make the other person doubt their own position, loyalties, or self-worth. Turnbull accused Ms Reid of disrespecting Indigenous MPs (she didn’t) while asserting that he himself has the greatest respect for Aboriginal and Torres Strait Islander history, culture, and people (he doesn’t). He put this argument while disrespecting an Aboriginal woman on national television.

For the record, Ms Reid remains confident of her position and respect for her people.

Yes Success

December kicked off with the passing of an amendment to the Marriage Act. Pushing on through measurable harm resulting in increased demand for mental health services, raising and dispersing funds not only for activism but for support, the rainbow community finally saw marriage equality made law.

When the prime minister, who did not campaign, rose to move that the bill be read for a third time – an essential step to making a bill into law – he accidentally gave a victory speech instead. The Speaker reminded him to do his job, and the error was edited from history. As is always expected of progressive punters – conservatives actually know they are the nastier bunch – the Yes folks generously shared their joy with all.

Responses to responses

The Royal Commission into Institutional Responses to Child Sexual Abuse is a grave moment. Its scale is gargantuan: five gruelling years, more than 1.2 million documents; testimony from over 8,000 people; a 21-volume final report; more than 400 recommendations. By all accounts, the commitment, professionalism and thoroughness of the Commission were impeccable.

Did Turnbull and the (then) responsible Minister, Christian Porter, rise to the occasion?

On the last day of hearings, Porter was tweeting a selfie at the cricket with John Howard. He followed this up with an awkward speech thanking the Commission and survivors, and boasting about increased sentences for child sex offenders, a common political response with no known efficacy.

Presumably Porter had been tapped for promotion and was merely going through the motions.

“An outstanding exercise in love”, declared Malcolm Turnbull creepily, of a child abuse investigation. He also reiterated his policy of limiting and capping the compensation costs, which are to be borne by the Australian public. The policy rules out redress for victims with a conviction for a serious crime. Given that police routinely escalate charges against Aboriginal suspects, this will disproportionately disenfranchise Aboriginal survivors. The policy is racist, arbitrary, populist, and unjust.

Predictably, catholic church leaders conducted tacky, tone-deaf press conferences, speaking to the obscure theology of the confessional seal, and defending their vows of celibacy. On Insiders, veteran church-watcher David Marr called their defence of the confessional ‘barbaric’. Social media exploded. But the depravity of grown men who purport to be virgins discussing celibacy and theology when the true issue is sexual abuse of children went without comment from our political leaders.

Another by-election

If you thought the skin-crawling display from Joyce and Turnbull in New England (my write-up here) wait til you hear about the oratorical wit of Bennelong MP John Alexander.

‘John is an honest man’, Turnbull shouted at the happy throng, despite the fact that he had lied on a statutory declaration about checking his eligibility parliament. ‘A hard-working man’, crowed the PM, among other hackneyed descriptors invoking a tennis career rather than political career – because what political career?

In real life, this retiree-in-waiting bunks down in Bondi while renting his Moss Vale mansion for $1400 a night – without declaring it. He says sexist, racist and ableist things on camera. He makes non-apologies, and channels Donald Trump, saying ‘no-one has done more for people with disabilities than I have’.

This is not true. Thousands of people, including children, care for people with disabilities from dawn to dusk and every hour in-between every single day for a carer’s allowance that amounts to 7 cents an hour above the Newstart rate… so no, John. Stop lying.


The Mid-Year Economic Fiscal Outlook (MYEFO) was delivered by a man whose degree is in ‘applied economic geography’ and who has apparently now been informed that cutting wages dampens demand, and consumption, and growth.

The trick to MYEFO is for Treasurers to cut spending, preferably targeting people who conservative politicians hate, like students and migrants and children. This disinvestment in education and social cohesion is called ‘savings’. The budget deficit increase projection is revised downward, and presto! An economically illiterate press babble ignorantly about ‘slashing debt’. By the time financial journalists produce a more sober analysis, of falling real wages and rising public and private debt, the government got the headlines it wanted.

The caravan moves on

And there it is. A quick trip across the Australian political landscape reveals long-term issues like First Peoples justice and rights, our torture of refugees, and what was once enthusiastically sold as ‘debt and deficit disaster’, have gotten nowhere. It shows a prime minister with no vision for the future, and apparently no capacity to form one.

So season’s greetings! Thank you for your time, and for your shares and comments. I look forward to writing more next year.

*This post was first published by Independent Australia on Wednesday 20 December 2017


Official responses to Royal Commissions: A sorry take on a sorry tale

The gargantuan Royal Commission into Institutional Responses to Child Sexual Abuse has come to a close. Its scale is almost impossible to comprehend: more than 1.2 million documents; testimony from over 8,000 people; a 21-volume final report; more than 400 recommendations. By all accounts, the commitment, professionalism and thoroughness of its processes were impeccable. And it would have surely taken a huge toll on survivors, counsel, journalists and lower-profile staff as well.

It is important to keep this Royal Commission in our sights, and in the headlines. Sexual predators thrive in secrecy, and catholic leaders have vowed to keep the secrets of its criminals, if they confess their crimes behind the confessional wall. Bearing bad news is never fun, but it must be said: the hopes and dreams of Australians desperately yearning for change in the wake of this Commission are already stymied.

The two most powerful actors on this stage are the federal government and the catholic church, and both have already signalled limits to – even rejection of – meaningful change.

The authority and efficacy of Royal Commissions

Many examples could be cited to demonstrate how governments stymie and side-track and otherwise render ineffective the work of Royal Commissions. It is tempting to re-visit the failure to secure justice for Anangu people at Maralinga, and the fact of a subsequent Royal Commission into the Nuclear Fuel Cycle; or remind everyone again that the Cole Royal Commission was supposed to clean up corrupt kickbacks paid by the Australian Wheat Board to the Iraqi government under Saddam Hussein in breach of United Nations sanctions yet in the real world we followed the USA into an illegal war in Iraq and the responsible minister at the time is now our High Commissioner in London.

But for this post I confine myself to the one historical example, the Royal Commission into Aboriginal Deaths in Custody, and the four RCs called during the Abbott-Turnbull administration, to make some general observations about the institution of the RC as a constitutive part of Westminster systems of government.

There is a general public perception that Royal Commissions are a solution in themselves, but the ultimate efficacy of any Royal Commission rests with government and other institutions in its purview. This is not to overlook that public trust in institutional processes is a democratic good; or that bearing witness carries an intrinsic value. As Alice Walker eloquently writes here, it does. Over these five years, people who struggled for decades to be heard were finally heard. People who were ignored, stonewalled, manipulated, and re-traumatised were honoured, respected and believed.

This matters.

But governments consistently lag behind community expectations, leaving recommendations unimplemented, underfunding monitoring and compliance bodies, and allocating resources to appearances over action. Another failure is at the coal face, where officers of the state, such as police officers, ignore reforms.

Since the Royal Commission into Aboriginal Deaths in Custody, no police or prison officer has ever been successfully prosecuted for killing an Aboriginal person on their watch. The police officers Nunn and Matier, on duty when Ms Dhu died in a Western Australian police cell, were later promoted. So was Chris Hurley, the officer who Magistrate Brian Hine found caused the death of Mr Doomadgee on Palm Island.

When police failed to notify the Aboriginal Legal Service that Wiradjuri woman Ms Maher was in their custody, in breach of Aboriginal Deaths in Custody Royal Commission recommendations, they failed to prevent her death. Ms Maher was 36 years old. She was taken into custody ‘because police had concerns for her welfare’. Her death was the first in the 16-year history of the Custody Notification Service.

Properly considered reforms in response to thoroughly investigated structural circumstances save lives. It follows that those who resist such reform wish to preserve their own positional power over the actual lives of others. Obviously this is a disgusting position to take, whether by a man of the church, an officer of the state, or a representative of the people.

So Royal Commissions, the most powerful investigative process in the Commonwealth, are not enforcement bodies. And in recent years, the official authority and community respect commanded by Royal Commissions has been diluted. Unsurprisingly, the politicisation of Royal Commissions, which were never entirely free of political influence, accelerated during the short and ugly prime ministership of Tony Abbott. Both Royal Commissions he called were established for no better reason than partisan vengeance, thereby cheapening the institution itself (my comment on the Trade Union Commissioner here).

It is worth noting that many political reporters continue to view the aggressively hyper-partisan Abbott as ‘effective’ and ‘successful’ rather than as nasty and destructive.

Malcolm Turnbull has also called two Royal Commissions in two years. He is more desperate than aggressive, because his prime ministership is driven more by internal disunity. The first was called the morning after a television program (my take here). Like most Turnbull initiatives, it was designed for him to be seen to be doing something. The show screened footage of state employees viciously assaulting and otherwise abusing black children in detention.

These criminal practices were well-known, as this 2014 report makes clear. Yet Turnbull invested so little in its brief – the literal torture of black children by the state – that his first choice of Commissioner had to be stood aside immediately due to dubious differential treatment of black and white offenders. Turnbull also resisted calls to extend the inquiry to other jurisdictions, as though the states do not also employ prison guards who routinely violate black children (they do). That Commission has finalised its reports. The political speeches have been made. The work on the ground, which is largely done by Aboriginal community and organisations, and Aboriginal staff at NFPs like Amnesty International, will continue.

Turnbull, a former merchant banker, had also resisted calls for an inquiry into banks which ‘literally stitch up widows and orphans’ and breach anti-terror and money laundering laws. He was eventually forced to choose between a self-orchestrated backflip, or humiliating defeat in the chamber, because his numbers were weakened by two by-elections and perennially fickle Nationals MPs. He chose the backflip.

The likelihood of reform to ‘keep children safe’

The response to the Child Abuse Royal Commission recommendations lie with Turnbull and three others in particular: Christian Porter, Anthony Fisher, and Denis Hart. Keen-eyed observers will spot the immediate problem with this line-up. These men are not anointed as a result of actual effectiveness in institutional reform. In fact, all four have presided over colossal damage to substantial sections of the population, from children in institutions to welfare recipients sent fictional debt notices, driven to suicide, and forced onto a cashless regime which does not work.

What have these men had to say?

The Child Abuse Royal Commission “is an outstanding exercise in love” blathered the Prime Minister, presumably creeping out everyone who knows anything about sexual abuse. Christian Porter is the minister responsible for the government implementation (or otherwise) of its recommendations. This rhetoric is as repetitive as it is obtuse. “This card is an act of love,” said Turnbull when launching cashless welfare in Kalgoorlie, on the first anniversary since 14 year old Elijah Doughty was killed by a white vigilante. Christian Porter is the senior minister responsible for that program too.

Turnbull also announced limiting and capping costs of compensation, for the crimes of rapists in institutions, which are to be borne by the Australian public. He ruled out redress for victims with a conviction for a serious crime. Given that police routinely escalate charges against Aboriginal suspects, this will disproportionately disenfranchise Aboriginal survivors. Even without the embedded racism, the policy is arbitrary, populist, and unjust.

Then the most senior catholics in Australia, archbishops Fisher and Hart, shared their thoughts on celibacy and the seal of the confessional. This, too, would creep out everyone who knows anything about sexual abuse. In her book Cardinal (temporarily removed from Victorian book stores) Louise Milligan describes Hart as ‘Pell’s best mate in the church’ (2017, p. 66).

Hart and Fisher also unilaterally rejected any change to their confessional practices, supported by the scholarship of Fr Frank Brennan. They want to keep their culture of secrecy immune from scrutiny by secular society and the law. This tells us that despite what Geoffrey Robertson has argued amounts to crimes against humanity, the church does not want to change, ergo they do not want to stop rapists, and do not want to save lives.

Finally, there are growing community demands that the churches pay tax on their obscene wealth. This will not happen, despite the fact that religious organisations are handed multimillion dollar government contracts to deliver ‘charitable’ services, when provision of charitable services is the indefensible rationalisation for tax free status in the first place.

How do I know this will not happen? Because of the disproportionate, unrepresentative power that the catholic church wields as a political lobbyist. Recall that the lawful authority for religious organisations to discriminate against service users or staff with impunity was recently reaffirmed in amendments to the Marriage Act 1961 (Cth). The lawful authority to impose hateful doctrine – referred to as ‘religious freedom’ by their parliamentary allies – includes the freedom to refuse abortion advice to women or sack gay staff, in places like hospitals, schools, homelessness services, and drug and alcohol counselling.

So while the Commission has done its work, all the evidence suggests that the federal government and the catholic church will not do theirs, although there is one recommendation we will see implemented. A national memorial to survivors will provide an opportunity for politicians to appear to be doing something. That one will get done.


Marriage equality and Joycean humility: the week that was

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

Sounds familiar, doesn’t it?

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

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

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

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

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

The bill reaches the House of Representatives

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

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

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

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

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

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

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

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

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

At last

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

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

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

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

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


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


The dots less joined

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

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

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

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

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

The legal question, and its answer

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

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

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

The political messaging, which is dangerous and wrong

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

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

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

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

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

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

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

New white nationalism

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

Here is how that is panning out.

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

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

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

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

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

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

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

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

Politically incorrect? Weatherboard and iron? Poor whites?

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

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

Just don’t say nobody told ya.



Government rejects Voice to Parliament

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

The government decision

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

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

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

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

Abridged and annotated: the government statement

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

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

The government press release goes something like this.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where to now?

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

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

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

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

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


The usual, thanks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So who is the target?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both claims are unsupported and unsupportable.

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

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

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

In sum, this weekend we have seen:

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

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

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

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


Hurrah! It is Section Forty-Forganza Week!

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

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

The politics of law and fact

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

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

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

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

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

Case strategy

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

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

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

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

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

Reporting politics, law, and justice

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

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

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

This is not justice.

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

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

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

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