Category Archives: Logic law and politics

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

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

Yeah, we know.

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

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

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

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

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

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

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

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

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

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

A nasty and harmful routine

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

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

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

Hard to say.

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

Everything old is news again

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

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

This is costing us an enormous amount of money.

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

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

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

But men like Malcolm do not think like that.

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

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

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

But there is trouble in dystopia.

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

A few sums

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

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

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

And tell us again about welfare recipients, Scott.

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

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

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

The cost, the damn cost, and the legal dimension

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

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

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

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

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

Disgusting.

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

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

Post-truth indeed.

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

The disappearance of Senator Bob Day

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

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

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

Talk about reward for merit in a liberal democracy.

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

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

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

Yet still Turnbull wrote to His Excellency:

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

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

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

Which brings us to where we are today

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

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

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

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

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

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

Who is counting the costs?

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

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

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

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

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

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

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

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

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

But there were four matters.

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

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

Brandis orders his office must approve requests for SG advice

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

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

Indeed, indeed. And here we are.

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

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

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

Hold that thought.

The bill to authorise a Marriage equality plebiscite

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

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

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

The Australian Citizenship Amendment (Allegiance to Australia) Bill

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

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

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

This is called ‘immigration detention’.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who cares?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is a take-home message here.

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

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

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

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

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

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

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

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

The Malcolm Election: an A-Z

I have many thoughts about this election. Here are 26 of them.

A is for aspirational. The politician who seeks to connect with the desires and hopes of a heterogeneous Australian electorate while assuming we all still think middle class white men are the only credible figures of authority, legitimacy and leadership. See also: #FakeTradie

B is for bullshit. Sorry, but politicians lie. It is an enduring but false trope that the Australian electorate has an indefatigable bullshit detector. No, we do not. If we did, Tony Abbott would never have been Prime Minister. As a chronicler of context and truth it is my reluctant duty to remind you that yes Tony Abbott was, in fact, for two long years, the Prime Minister of Australia.

C is for cynicism. Every time I write about politics, somebody says oh why so cynical. No, I am not. I have reached an evidence-based position. I am qualified to do so. On my analysis, the Liberals are terrible economic managers. Turnbull is lying. Dutton is racist. I hold degrees in economics, politics and law; have ten years experience in cultural studies and semiotics research. Qualified conclusions are not cynicism.

D is for double dissolution. Which is ABCC AND DD (hur hur hur) because this election was called on an important principle, that principle being that Malcolm Turnbull be allowed to set a new low for abuse of constitutional process in order to attempt his hand and fate at re-election.

E is for election, the one that was due in September but has been brought forward by our default anyone-but-Abbot Prime Minister for the simple reason that the Liberal Party are, to quote a favourite of theirs, in disarray.

F is for fantastical, which is the correct adjective for the sad and stubborn headspace of those who maintain that Turnbull is statesmanlike; or that the Liberals are any kind of economic managers, in the face of all evidence to the contrary.

G is for government. The proper role of government. The extent to which the governing authority has control over the lives of the governed. The citizens. A legitimate question.

H is for housing. Homelessness. Housing security. That for which the Liberal Party do not give a fig. The Liberals will, however, waste resources on defending a policy that transfers wealth from the PAYE taxpayer to the investment-property-owning class. Resources that could be used for, oh, I don’t know, public housing.

I is for inequality. The first rule the FIRST rule is that all are equal before the law. That we are all born equal in dignity and rights. We should get cracking on that. Make it happen. Right now it is just words.

J is for justice. Social justice. Gender justice. Race justice. Our jails are full of poor people. Illiterate people. Survivors of child sexual assault. Yet it is fraud that costs the community more than any other crime. Our justice system is not, at present, distributing justice.

K is for killers. Men who kill women. Men who kill gays. Men who have access to guns and the structural power of patriarchy and use it to kill fellow human beings. Yes, it is political.

L is for liberalism. The actual values of liberalism, not this corrupted garbage passed off to us as free speech to hate on First Peoples and whoever else it is today.  Liberalism is autonomy of individuals over decisions and actions without harming others. Someone should tell members and representatives of the Liberal Party about that.

M is for moderates. Of which there are none left in the Liberal Party. Such that Turnbull looks like a moderate next to a religious extremist like Bernardi.

N is for Nauru. Because who is talking about Nauru this campaign? Bipartisanship is death. Literally. If the majors have decided not to contest each other on an appalling policy, we shall hear no more about it.

O is for opinion. And opinionistas. And opinion makers, and seekers, and jealous gatekeepers. Whether to a desperate shill like Devine or a dogged tortoise like Henderson, the fragmentation of audiences is scary as because we the people – in a democracy – are  *gasp* choosing to whom we want to listen, all by our own selves, like grownups.

P is for parties, and the ragged party system. So flawed, yet so entrenched. And every decision-maker who could see it improved is deeply vested in its current structure. Plus ca change etc

Q is for the Queen, and not just because our current Prime Minister tried and failed back in 1999 to rid us of her as our head of state. Her man Cosgrove, appointed by Abbott, signed off on Turnbull’s garbage excuse for a double dissolution, as convention requires. Unlike Kerr, she is at least cognisant of convention.

R is for refugees, And the Refugee Convention. And for – or more specifically, against – refoulement. As per our obligations under Article 31. The ones we regularly breach, using Art 33 on national security grounds as an excuse.

S is for soul and searching. Do that. I am. As I hold my nose and vote for Labor or maybe the Greens while deciding whether to put the Liberals last or some other violent racist sexist homophobe. What a pity our choices are so limited. I wonder who could do something about that. Yes wonder I do.

T is for transfer of power. Not from Liberal to Labor or back again, or from the House to the Senate. I mean real, institutional, structural change. Guaranteed positional power for First Peoples. Seats. Vetos. Sovereignty. Enforceable rights. It can be done.

U is for umbrage. Because saying things like oh I think constitutionally guaranteed seats in parliament and sovereign recognition of Aboriginal rights and interests in land … give rise to umbrage. Someone who gets to exercise their rights, more than they need and certainly more than they deserve, will take umbrage at that.

V is for the vote, and the voters. No, we are not responsible for the dismal state of the polity: that would be politicians. It is politicians who are in a position to change the quality of debate, policy, what we get and what we came for. It is politicians who decide that rich people can pay for access, and democracy be damned. But on that one day in three years, on 2 July 2016, we do have our vote.

W is for Wentworth. May it change hands. The incumbent is terrible, and he looks like he may not last into next week.

X is for X-factor. The known unknowns and the unknown knowns. How many are there of both. Blessed be the Australian polity.

Y is for YOU. In two weeks you get to choose which cis white heteronormative neurotypical private school educated sandstone university married man led party you want to choose a candidate for such that it will form government. Choose carefully, or the parliament might be overrun by all those radical communist ecologist black power feminist disability gay rights activists that you saw on your ballot paper.

Z is for Ziggy. Because where would we be without a demonstrably incompetent overpaid executive who knowingly breaches caretaker conventions running a third rate broadband network that was once going to be a national equaliser on digital access and opportunity.

I ask ya

Lying lacks integrity, or IOKIYALNP*

Last week I wrote up a few tips and guidelines to the Malcolm election in which Australia, increasingly miserably, finds itself. I grumbled about the sexism of Dutton and the posturing of the Prime Minister and observed that the Treasurer clearly hates his boss.

The post was redundant within hours. Dutton surpassed his sexism with some carefully calibrated racist xenophobic lies. Despite obvious distaste from the Opposition, much of the commentariat and the electorate, Turnbull backed him up and Dutton doubled down. Clearly this dead cat had major work to do. Just how bad were those polls, those PEFO figures, the evidence that the budget handouts to business and the wealthy would not produce either jobs nor growth?

Maybe it was the news that Australian Border Force members are allegedly involved in smuggling rackets. You know the ones. That favourite of Dutton (and Morrison, and Abbott) which spends more on medals than the actual Australian Defence Force does. This pseudo militaristic outfit isthe solution to ‘people smuggling’ but according to Fairfax, a ‘network of Australian Border security officials’ are likely into tobacco smuggling.

Not to mention the troubling evidence from none other than Amnesty International that our government committed transnational crimes by paying people smugglers to leave Australian waters.

Perhaps it was the Pre-election Economic Fiscal Outlook, which World Today reported would revise revenue downwards from the imaginary growth figures that featured in the budget a mere two weeks earlier. The afternoon PM program then reported that the PEFO would be broadly consistent with the budget forecasts. Is this really some kind of achievement when, did I mention? The budget was tabled a mere two weeks earlier.

But then things got really messy.

Turned out the AFP was about to raid the office of a Labor senator and the house of a Labor staffer which they did in quite spectacular fashion. The raid was ostensibly over leaks of nbn™ documents. An nbn™ staffer apparently went along to advise the AFP and took photos of documents – documents which are now subject to a claim of Parliamentary privilege – but not before the former copper turned nbn™ staffer turned special assistant to the AFP could share said photos.

Or not. Who knows? If these were errors, the AFP is incompetent. If the AFP knew the documents were likely to be subject to a privilege claim and went ahead anyway, the whole thing was a redundant stunt. Redundant but for one possible purpose: the ever-present media, some of whom happened to be nearby when the night time raids were mounted. The media works in mysterious ways.

Speaking of craptacular mistakathons (© @YaThink) the AFP Commissioner then told the media that his organisation had not notified government of the raids. This was followed by a clarification from the Communications Minister that he had been advised of the raids but that he had not told the Prime Minister.

So what? Well, both men clearly have a poor understanding of the word government (the AFP Commissioner and the Minister are both members of executive government); and at least one of them is lying about whether Communications Minister Fifield was told.

Nobody has contradicted the claim that the Prime Minister was not told except, it would seem, the Prime Minister himself. Answering questions on the campaign trail, he was asked repeatedly about the raids he was purportedly not told about before the fact.

From the transcript:

JOURNALIST:

Prime Minister can you confirm that your Communications Minister knew about the possible investigation into the NBN links some months ago and didn’t tell you about it?

PRIME MINISTER:

I can yes, that’s right.

JOURNALIST:

He didn’t tell you about it but he knew about it?

PRIME MINISTER:

That’s correct.

So far, so good – if you believe what the Prime Minister places on the public record. After some babbling about an old white man megaphone who is a blight on our airwaves, the PM was asked:

JOURNALIST:

Prime Minister Turnbull, did you or anyone acting on your behalf have any contact with NBN Co or its’ executives about this leaked material?

The AFP Commissioner having denied telling anyone in government about the raids, and the relevant minister having said he was told but did not pass on this information, the journalist is checking whether the PM knew of the raids through some other avenue.

Here is what the PM said when asked if he had any contact with NBN Co about the leaks:

Can I say to you that I’m not sure what you mean by that question. But the only issue here, the issue here is the integrity and the independence of the Australian Federal Police.

Let me just make this point; it should be a matter of very great regret that the Leader of the Opposition and the Shadow Attorney-General sought yesterday to attack the integrity of the Australian Federal Police. Now, Australians recognise that the national security of this country, of our nation, the safety of our people, is indivisible. It involves our armed forces. It involves border protection. It involves police, federal police, state police. It is an indivisible chain of security. The integrity of our police forces is absolutely critical.

Now, the Australian Federal Police, when they conduct an investigation, firstly they make their own decision as to whether to investigate, which they did in this particular case and then how they conduct that investigation is theirs, their decision to make, independently of government. Now, what Mr Shorten is seeking to do is to suggest that the Australian Federal Police have acted other than with integrity or other than independently. He should be ashamed of doing so.

We know, as the Commissioner said, that the AFP act with the utmost integrity and they act independently of government as they should.

 Here is some of what Turnbull just did:

  1. began his answer with a signature distraction/think-time phrase
  2. expressed doubt in his own comprehension as he bought time to decide what question to replace the actual question with
  3. conflated AFP integrity with a lie about the Labor Party
  4. asserted, without a shred of evidence, that the AFP are above reproach and beyond questioning on issues of integrity and independence
  5. conflated an AFP raid with national security – which traditionally refers to threats from outside the nation state.
  6. implied that the AFP are not an arm of government. In fact, the AFP are armed agents of executive government
  7. backed his claim that the integrity of the AFP is above reproach by citing a man who either lied to the public or exposed the communications minister as a liar
  8. did not answer the question

And that is just a start. Turnbull was then asked about the NBN staffer who was present under the guise of holding expert knowledge as per AFP guidelines. He did essentially the same thing, in terms of not answering the question, switching the topic to the Opposition, and making unsubstantiated claims about the integrity of the AFP.

It is worth asking whether Turnbull would bother doing any of these things if there was a simple yes or no answer available to a properly briefed leader on the independence and probity of the raids. But apparently a man trained in first principles like presumption of innocence, and who ostensibly had no prior knowledge of the raids, also had deep insider knowledge of the facts and of culpability (emphasis added):

JOURNALIST:

Prime Minister, do you accept that given these documents were presupposed to be under parliamentary privilege the AFP violated their own guidelines by having an NBN Co person present there, taking photographs?

PRIME MINISTER:

I can’t comment on that. The documents, I note that there’s been a claim of parliamentary privilege made by Senator Conroy. The documents have not actually been tabled in Parliament, which is how parliamentary privilege is normally obtained. But really, I don’t want to get into the legalities of Senator Conroy’s determination to keep the police away from these documents, which were clearly stolen from the NBN Co. So he’s trying to keep the police away from those. He’s made a claim. Apparently it will be dealt with by the Senate when the Senate reconvenes after the election.

All I can say to you is that the police acted independently and with integrity. My Government respects that integrity and independence. It is a great pity that Mr Shorten and in particular his Shadow Attorney-General, plainly does not.

The documents were clearly stolen from NBN Co, according to the leader of the land.

Lets leave aside the presence of the former Victorian police officer turned casino security manager turned NBN staffer turned expert who was present at highly sensitive AFP raids in the full glare of the media in the middle of an election campaign where he reportedly took photos of documents and shared them before any privilege claim could be heard – this is all too murky for me.

What I can set out – in light of the Prime Ministerial claim that the documents were seized because the documents are clearly stolen goods – is a quick run down on how a criminal proceeding proceeds.

A complaint (or observation, when police are out on patrol) is made such that police form a reasonable suspicion that a crime has been committed or is about to be committed.

The police interview the complainant and begin to gather other evidence.

If that potential evidence includes items that the police reasonably believe are stored at a specific location, a warrant application is made to search the premises at that location.

The warrant is signed off by a magistrate or higher officer (depending on seriousness of the crime and other details).

The police attend the suspected address and properly execute the warrant.

If evidence that matches that described on the warrant is found, it can be photographed, seized, and removed by authorised officers of the state.

So.

We know each of these steps have been carried out, with the possible exception of the presence of the NBN staff member, which may turn out to be unauthorised at law.

Before anyone can state that the seized documents were stolen from NBN Co, let alone that the documents were obviously stolen from NBN Co, the following steps must be taken:

The police continue gathering evidence such as interviewing witnesses until there is sufficient evidence to arrest a suspect with a view to laying a charge or charges. The standard test here is whether the evidence can amount to proof such that a reasonable jury would be likely to convict the accused. Are there, asks the prosecutor, reasonable prospects of success in this case?

This rule is intended to prevent police from pursuing an unwinnable case against an accused person who merely conforms to the police idea of what a criminal is or looks like or who the police think should be locked up without credible evidence. There is a reason for thus rule. The reason is embedded in the preventative purposes listed.

Next, the police make an arrest ‘on suspicion’ of a particular offence. Then they question the suspect. Then they lay the charge (or release the suspect). There may be a bail hearing, if the police oppose bail. This is due to presumption of innocence. The accused is innocent until proven guilty, beyond reasonable doubt, in a properly constituted court of law.

There will be a mention to set various dates and may be a plea hearing. If the accused pleads guilty, we may state at this point and not before, that the documents were ‘obviously stolen’ – if and only if the charge is that of stealing these documents.

If a not guilty plea is entered, the evidence is tested before the tribunal of fact – either a jury, or a judge if the accused has opted for a judge-only trial. The prosecution presents its case. The defence presents its defence. Evidence is adduced. Applications are made for non-admissibility of prejudicial evidence (or not). Witnesses are examined and cross-examined (or not). The rules are explained by the judge if necessary.

The evidence and arguments are summarised. The tribunal of fact retires to consider the facts and circumstances of the case. A verdict is reached. The court is recalled. The verdict is delivered. If the verdict is guilty then, and only then, can we say that ‘the documents were obviously stolen’ – if the charge was that of stealing these documents.

The presumption of innocence is a cornerstone of the criminal law system. It is an acknowledgement of the fact that the state and its agents are known to abuse power. Far from the armed agents of the state being above reproach, the most foundational principles of our legal system – presumption of innocence, right to silence, guilt beyond reasonable doubt – are specific recognition of the inherent power imbalance between the citizen and the state; and of the inherent tendency of the state to abuse its power and to violate the rights and freedoms of its citizens.

This is historical fact. The evidence of state abuse of power is overwhelming, and has been for centuries. When the Prime Minister claims the AFP are beyond reproach, he contradicts what every first year law student learns about the foundational principles of our legal system and why we have them.

In other words, none of us know whether the documents were ‘obviously stolen’ until a guilty plea is entered or the evidence is tested in a court of law. Either of these two results then makes the fact obvious. That is what criminal law processes are designed to do: seek facts and evidence, construct those facts and evidence into a logical argument that examines all the circumstances, and reach a verdict, which is either the truth or becomes the truth, depending on how robust is the system and its agents.

Yet regardless of centuries of legal tradition, principles, and rules, a barrister-turned-politician, the highest-ranked leader in the land, Prime Minister Malcolm Turnbull, got out his crystal ball and told reporters that the documents were obviously stolen.

This is not his call to make. It is a matter for the police, the accused, and the courts.

 

 

 

*IOKIYALNP: It’s okay if you are Liberal National Party (like living within your means, for example). Originally coined as internet slang to describe the way Republicans in the USA apply one rule for the party (family values and rampant adultery, for example); and another for everyone else.

 

The Malcolm Election: A Primer

As week two of the 2016 federal election campaign kicked off, there was no more important news than the findings by The Australia Institute (TAI) which clearly show the 2016-17 budget measures will not, in fact, create either growth or jobs.

In short, taxpayer-funded government hand-outs to business and the wealthy do not trickle down to those in greatest need, but are scooped up by – this will shock you – business and the wealthy.

Who are the wealthy?

Australians who enjoy an income of $80,000 or more per year want for absolutely nothing. We can choose between public and private education. Between public and private health care. We do not experience the systemic criminalisation of poverty. Nor the anxiety and transience of housing insecurity. When we turn on a tap, at home or at the park, clean potable water comes out. We can take at least one domestic holiday each year, and save for overseas holidays – the trip of a lifetime, biannual sojourns in the Pacific. Either way, other than our ugly sense of entitlement, we are just fine.

The electorate which reaps the greatest windfall from the jobs n growth budget is Wentworth, the extraordinarily wealthy enclave in the eastern suburbs of Sydney and seat of Prime Minister Malcolm Turnbull.

Meanwhile, the Grattan Institute released findings that the slated company tax cuts would stimulate growth by  0.6% at best and it would take 25 years ‘for the economy to feel the full effect’. In other words: nothing. Margin of error stuff. The ‘growth’ half of the Liberal Party slogan ‘jobs and growth’ is demonstrably false.

In response, the Prime Minister did not engage with the figures. He did not provide a nuanced rebuttal. He did not display his fabled intellect, another lie, so vigorously promoted by his crony commentator mates. He did what weak and lazy conservative thinkers always do: asserted that a demonstrable lie is somehow natural, inevitable, common sense, an infallible truth.

Turnbull said: “It is well understood and well accepted that if you reduce the level of business taxes, company taxes, then you will get a better return on investment, you will see more investment and you will see more employment and that is the inevitable consequence of it.” (The Guardian, Friday 13 May, 2016).

Over at The Australia Institute, economist Richard Deniss found that the government hand-outs to business in the 2016-17 budget will create as many jobs over 30 years as the economy created last month on its own. That is, the economy created more jobs in a month, without a $50 billion hand-out from the saintedAustraliantaxpayer™ than the hand-out to business will create over the (very) long term.

Who is the saintedAustraliantaxpayer™?

Anyone who buys a good or service. It took a Disability Support Pension (DSP) recipient to remind the nation and the foreign-owned Murdoch press of this fundamental fiscal fact. This displeased said Murdoch press, which is neither Australian nor pays tax, but is down for persecuting a sexual assault survivor who is reportedly now on suicide watch.

(In fact we paid $882 million of our tax money to the foreign-owned Murdoch press. This windfall was sent via a morally bankrupt government and a depleted and frankly exhausted Australian Tax Office, which under the profligate and economically illiterate Treasurer Joe Hockey was forced to shed 4,400 jobs in 19 months.)

Disunity and Misleading Claims

As well as the completely unfounded claims (lies) the government broadcasts about its budget, the company tax cut (like the date of the budget itself) saw the Prime Minister and the Treasurer at odds, again, over whether Treasury had done the costings. Did the Prime Minister lie about whether Treasury had done the costings? Why not ask FactCheck, the ABC service to be axed by its brand new ex-Murdoch CEO in the middle of an election campaign?

What does it matter whether the Prime Minister forgot to tell the Treasurer that his re-election strategy relies on a grandiose announcement about a double dissolution over a bill nobody knows or cares about and that this would mean bringing the budget forward because Malcolm?

Who cares whether the Prime Minister lied about Treasury costings and the Treasurer therefore ordered Treasury to release the costings which is clear evidence that the Treasurer hates the Prime Minister and that the government is dysfunctional and in chaos but whatever because Malcolm.

Why not trust a banker, a barrister, a politician in bed with the real estate industry? Malcolm!

In the end we found out that the cost of this pre-election hand-out to Liberal Party donors business would be nearly $50 billion – for basically no return, except a prop on which to hang a slogan. That slogan of course is jobs and growth. The analysis above clearly shows that neither jobs nor growth are an inevitable iron-clad law of economics flowing from budget promises, as the Prime Minister would have us believe. Jobs and growth is nothing but a false and empty slogan of the most Abbottesque variety.

Next came The Australia Institute findings that the company tax cut would represent a massive $10 billion wealth transfer over ten years from Australia to – wait for it – the USA. Not to a developing country. Not to an aid project. Not to investment in renewables or global peace or education for girls (the single most effective way to change the world).

In response, the Finance Minister did not engage with the figures. He did not provide a nuanced rebuttal. He did what weak and lazy conservative thinkers always do: asserted that a demonstrable truth is not true. The Australia Institute findings are ‘factually incorrect. Completely and utterly false’ blathered Cormann, as we stood by for his substantiating evidence. But no, his entire argument amounted to the blare of a quiz show horn. Bzzzzzt. Wrong.

Recall that the Prime Minister relied on not just false but disproven productivity claims for the Australian Building and Construction Commission (ABCC) in his letter advising the Governor-General to dissolve Parliament. The Attorney General QC produced a 13-page letter in support. The Governor General reproduced the false claims in his speech to the amassed MPs who the Australian taxpayer flew back to Canberra at an estimated cost of $20 million to reject a bill we knew would be rejected. (Did the Governor General mislead parliament? My case for the affirmative here).

Such expensive gestures afford huge electoral advantage to the incumbents. Of course, for those smashing economic managers of the Liberal Party, no expenditure of other people’s money to shore up political advantage is too great. Abuse of incumbent power is also no problem.

Meanwhile the Prime Minister, not known for decisive action or sound judgment, dithered and waffled about the budget and a double dissolution, as his fortunes sank in the polls (stand by for fear-mongering on terror and asylum seekers). Meanwhile, his Treasurer hastily scribbled some numbers on the back of a nearby envelope. Young people, Morrison muttered, pencil clamped between his teeth. Health and education no no scrap that. I know. Give business yet another hand-out and troll young people by making another business hand-out look like a constructive policy.

Done.

Democratic process: on policy and law

None of the budget thought bubbles measures have been tabled as bills or passed by both houses of parliament. The government is in no different a position to the opposition: whatever they say is a promise, not a law.

Supply was passed, unamended, the day after the budget was tabled. New policies, which require new appropriations, are still up for grabs. Electoral fodder, nothing more.

At any time, but more so at times like this, it is important to remember that legislation is the codification of policy; and policies are units of ideology. Laws are made by politicians, who belong to political parties, which in turn hold to specific ideologies. The law is not neutral, either in creation or application. There is no magic political-evaporation pond in which to soak our laws when they come into force. Law is inherently political, because politicians make laws.

This is how democracy works. An election is called. Candidates for two major and some minor parties traverse the country, communicating their policy platform to the voters. The policy platform is comprised of planks. In the old days this was a direct metaphor for the stage on which the politician stood, like soap box for public speakers.

One party or coalition secures a majority of seats in the House of Representatives and forms government. Its promises, founded on its ideology, do not suddenly magically turn into law (the great Gough Whitlam came close to performing this magic in 1972, rest his soul). Each policy or promise must be dumped or broken or drafted into a bill and passed by both Houses of Parliament. No new policy, no hand-outs to business, whether tax cuts or the dehumanisation of young unemployed people, are yet law. What is happening in this campaign is a simple abuse of the power of incumbency by the incumbents.

Decoding election messages: the Malcolm campaign

The media has a designated role in the democratic process. This designated role is not to compete between gotcha moments and creepy selfies for the nightly lead. In the English tradition, the tradition forcibly imposed on this continent and her islands, the media is the fourth estate. The first, second and third estates are the Church, the landed gentry (Lords), and the peasants (Commoners).

As an estate, a stakeholder in a democratic system of government, the media have an obligation to report in the public interest. This includes informing the electorate of opposition policies, so the public has a choice on election day. If the electorate are not informed of opposition party policies, we only hear about government, and thus lack informed choice at the ballot box. There are words for one-party states, and none of those words are democracy.

The traditional media method of discharging this duty is to proclaim a commitment to the journalist code of ethics and to balanced reporting. Of course balance is not for vested conservative interests. The Murdoch empire remains a shrieking cabal of nasty privileged sexist racist cronies who broadcast their shameless partisan garbage to the detriment of all but the vested interests of their sadistically selfish boss.

But the supposedly more responsible media are not balanced either. This is partly a function of bullying by conservative governments and big business, via funding cuts (ABC and SBS) or a big bank withdrawing its ad buy (Fairfax).

But it is also a function of the most powerful structural advantage in any democracy: incumbency. The media subscribes to a structural hierarchy of privileged voices. The most powerful voices in society are assumed to be the most important voices.

Never mind that democracy claims to be government by the people for the people; or that the Rule of Law announces that we are all equal before the law; or that the most endorsed document in the history of humanity, the Universal Declaration of Human Rights, says all humans are born free and equal in dignity and rights.

No. Put all that to one side and, like capitalism itself, afford the highest platforms and most prominent positions to the most advantaged. Those from whom we have already heard, whose voices we hear all the damn time; who rarely offer a new insight or creative approach (and never an impartial one); whose social power eclipses all others; and who are largely responsible for the social, geopolitical, and environmental mess in which we find ourselves and in which we have placed our overburdened and burning planet.

Value is scarcity, or so my economics professors told me. Yet here we are with a surplus of vested white men and the occasional woman whose views are largely dull and redundant anyway, but also, according to economic orthodoxy, being in surplus and all, of extremely low worth. It is these voices that the traditional media foregrounds as though they are of the greatest value. We have an over-supply of smug white men. We hear from them endlessly. The bigger problem is how to shut them up. These voices lack substance, honesty, morality, inspiration, creativity, insight… anything, really.

Except incumbent power.

Under this model, every mainstream media campaign report leads with the incumbent. It should be noted that the current incumbents are ministers in a deeply conservative and inept government, sexist and racist and homophobic to a man and woman. These values are thus hyper-visibilised and normalised, irrespective of whether Australians see such ugly positions to accurately represent our values.

Government representatives of the people: a sample

We might hear from AG George Brandis QC, ‘confirming’ that prevention of an imminent terror attack is a fact (when it is not only an unproven claim but sub judice, as the good QC knows, or ought to know).  Brandis is presumably on terror-mongering duty to rehabilitate his dismal reputation as a luddite who failed to notice that numerous letters from Man Haron Monis to his office amounted to overwhelming evidence of Monis’ violent tendencies – which ended in the Sydney siege.

Or we get Scott Morrison saying the Opposition has blown a hole in ‘the budget’ (the Opposition does not control the budget. That would be the job of the Treasurer) and saying ‘this decision, the decision that we have taken today, we had already accounted for’. Okay, Scott. You accounted last month for a decision you made today, but Labor did not. Back in your time machine, mate.

The temporal dissonance is bad enough, but the failure to ever back their own policies with anything other than ‘this is inevitable’ conservatism, or ‘my unprovable claim is a fact’ terror-mongering, or ‘Labor Labor Labor’ from a rabble who have been in government for 2.5 years?

Who else is out and about flinging misleading claims like defecating monkeys?

Why hello Peter ‘plod’ Dutton. Hello you of the recently purchased $2 million+ Palm Beach pad, trolling Tanya Plibersek on her household income. It is an unwritten bipartisan rule of politics to never draw attention to the exorbitant amount we pay politicians for their phony, petty posturing. But household income? Oh, that’s okay. In this instance. You know why? Because Plibersek is a woman.

Ask yourself: have you heard anyone, despite its ostentation, refer to the enormous wealth of Lucy Turnbull nee Hughes? Do you know whether Malcolm or Lucy, and we are talking an extremely high wealth base on any measure here, comes from the wealthier family circumstances? Not a whisper? Yet here is Dutton making veiled references to Plibersek’s husband. Anyone who has followed the fortunes of Mr P knows what else Dutton is implying, a disgusting smear unworthy of further consideration.

And then there is the Prime Minister. The shtrong (pause, deepen pitch, take breath) Prime Minister. A man who told Freemantle workers that massive government contracts are innovative, talented, the future of Australia, twenty-first century.

Let’s take a closer look. The  announcement is a government contract for patrol boats. Are we at war? Is someone invading our remote island?

A: Australian patrol boats are used to turn back desperate people fleeing persecution, many fleeing persecution of our making, in Iraq and Afghanistan and Syria. So the Turnbull vision of innovation for the future of Australia is to further persecute desperate human beings. Nice.

The announcement was for a government contract. Not a start-up, not the invention of refrigeration, or commercial application of wi-fi, or economies of scale on solar cells. It is a government contract to build patrol boats. This, says Turnbull, is Australia at its best. This is our future. Lovely.

Turnbull is talking about a taxpayer-funded order for military hardware in peacetime. The claims he makes for this ordinary procurement decision are so grandiose, so doused in rhetoric, that there must be a greater ideological purpose. What could this statesmanlike purpose be? When on analysis the rhetoric comes up isolationist, socialist, and racist? Can that be right?

Yep. Turns out the only point is the re-election of the Malcolm government, which stands for literally nothing but itself and its donor mates. Nothing new there, then.

Turnbull followed his racist isolationist speechifying with a visit to Darwin, where the Northern Territory government has leased the port to a Chinese government entity for the next 99 years. This is obviously the greatest threat to national sovereignty since the British took by force the sovereignty of over 300 nations in 1770.

Here on soil stolen by the British and handed to the Commonwealth of Australia which leased it to the Chinese, Turnbull waxed lyrical on shtrong border protection. Think about that.

Is he being wilfully ignorant? Stupid? Has he not heard of soft power, despite the cheer squad who laud his ‘intellect’? Or does he just love money and hate brown people seeking asylum? It is very hard to tell.

Just kidding. It is very easy to tell. Despite being demonstrably terrible at his job, Turnbull likes having it; and when a vested, powerful, wealthy white guy likes what he sees, woe betide anyone who stands between him and his object of desire. No isolationalist nationalist xenophobic rhetoric is too low to go.

Six More Weeks: A Survival Guide

Happily, the way to understand media coverage of all this woeful garbage is not difficult. It is not intellectually demanding, or more complex than that, as people out of their depth in public are trained to say.

First, every day is opposite day in the Liberal Party. The reason is that their policies are designed to benefit their own, their base and their donors; but must be sold as if the policy will produce some general social good – in order to win the election. While the Grattan and Australia Institutes have done fantastic work, and our system requires evidence to debunk the myths and lies being flung about, there is no need for the average punter to decode or analyse or crunch numbers. Just ask two simple questions:

  • Is the Minister insisting his claim is true without any substantive evidence? It is false.
  • Does the decision in fact benefit business and the wealthy? Then that is its point.

The dedicated punter can perform further checks. Turn the claim around, and see if its exact opposite seems to resonate, to more closely correspond to the facts in the world.

  • Turnbull is a good economic manager: take a look at the deficit
  • Turnbull can be trusted: Turnbull has reversed his positions on GST, state tax collection, marriage equality, the Republic, climate change (etc)
  • Turnbull is a good leader: Turnbull failed the Republic campaign and failed on climate as Opposition leader. See also NBN. And Godwin Greche (etc)
  • Turnbull is an intellect: Turnbull repeats the same six words at every outing
  • Turnbull is progressive: see marriage equality and climate change, above. See also Safe Schools, cashless welfare, Gonski, university fee deregulation, eating disorder helpline, upfront pathology costs (etc)
  • Turnbull is better than Abbott: Turnbull bangs on about terror and border protection at every opportunity
  • Turnbull is articulate: Turnbull ums and ahhhs like Abbott. Turnbull uses conservative tropes every time he speaks. Turnbull patronises senior journalists to prevail over otherwise much stronger counter-arguments to his claims.

And so on. And on. For six more gruelling weeks.

 

 

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From island prison to island prisons: White Australia and other stories


This week the highest court in Papua New Guinea unanimously ruled that the detention camps established by Australia on Manus Island are unconstitutional, which is to say illegal.

There were two layers to the decision, both of which went against the case for the legality of the camps. The first was that the establishment of the camps was unconstitutional. The second was that the constitutional amendment designed to authorise the establishment of the camps was itself unconstitutional.

The next day the PNG Prime Minister Peter O’Neill announced that the camps would be closed. Bear in mind that the case was brought and won by the leader of the opposition. The PNG Supreme Court may have displayed greater moral fortitude and constitutional rigor than the High Court of Australia, but politics is politics wherever we look.

 

Two constitutions, four islands: Australia, Papua New Guinea, Manus and Nauru

This post is not about these legal decisions. I leave that to others who are far more qualified than I to write. The PNG decision is available here, and can be contrasted with the case against the constitutionality of Australian detention camps on Nauru here. There are many great explainers of the issues, the legalities and the politics. This article by Madeline Gleeson in The Conversation is excellent, as is this by Richard Ackland in The Guardian. Ackland has been publishing pieces on asylum seeker policy for the layperson for years.

This post is about the failure of the Australian political leadership and society to decolonise our thinking, over 220 years since what Aboriginal pastor Ray Minniecon recently described as the original sin of terra nullius.

 

The current political landscape and ongoing colonial project

The Australian political landscape this week was once again a garbling of strategy and tactics and messaging and what passes for policy these days. I say ‘what passes for policy’ because current government policy is predictably predicated on doing more-or-less nothing, or nothing differently to immediate predecessor PM Abbott.

As the PNG Supreme Court decision hit the news, the Immigration Minister was accused of contradicting the Defence Minister and the Prime Minister expressed surprise at the PNG court decision while the Immigration Minister said the government had been ‘working behind closed doors’ in preparation for such an outcome. Nothing new here. The month before the Treasurer and Prime Minister were at sixes and sevens on when the budget would be brought down – a matter of some import, or so we would be forgiven for thinking.

We are accustomed to this incoherent and mendacious incompetence from the Coalition government (though we are less accustomed to the Murdoch press completely ignoring it rather than screeching CHAOS!11!! at every opportunity, as was the case during the last Labor government).

There are many contradictions – some would say lies – of the 28 April 2016 prime ministerial interactions with the electorate. Fresh from memorialising victims of a massacre at Port Arthur 20 years ago, Turnbull put on his paternalistic lecturing voice to caution that ‘we can not be misty-eyed’ about indefinite detention on island camps.

These are camps that we know for a fact facilitate mental illness, rape, torture, and murder.

Anyway. Misty-eyed. From the man who did all he could to muster misty-eyed-ness mere hours earlier. It is obligatory at this point to emphasise that I do not intend to disrespect the dead at Port Arthur, which I do not. I write as a mother and human rights scholar, of the value of a single human life.

The events of the day were reliably exploited to:

  • perpetuate the lie that an event in 1996 was the worst massacre in our history, erasing massacres across the country from 1788 to 1928
  • elevate the legacy of John Howard, a racist, small-minded and deeply conservative prime minister who nurtured the meanness and madness of Tony Abbott and who is responsible for conflating asylum seekers with terrorism during the 2001 ‘Tampa affair’
  • reinforce the dominant narratives that ‘our’ dead were lives of value and must be remembered, while those human beings living in ‘offshore’ detention are to be dismissed as means to some other political end

It was like a one-day methodologies workshop on aggressive prosecution of the colonial project, a seemingly endless national preoccupation. Australia Day is merely the most blatant example. Abbott was merely the most blatantly racist recent prime minister. The erasure of the oldest continuing human history on earth continues unabated right here, right now, in Australia, in the 21st century.

 

The social landscape and dominant cultural hegemony

How might white and other non-Indigenous Australians decolonise our thinking on island exile? For island exile is not new to the white Australian colonial-settler state. It is in our DNA.

I do not mean to hate on this amazing country, cared for as it has been for upwards of 50,000 years by First Nations people. Nor do I ignore the vibrant multiculturalism of 21st century Australian society. I am looking at the dominant cultural hegemony of white middle class Australian values. It is these values that apparently approve the camps on Manus Island and Nauru; which makes these values racist, divisive and cruel.

This is what was bequeathed to us by the colonisers, and continued in recent times by the mean and tricky Howard; the aggressively nasty Abbott; and the cowardly and conformist Turnbull. Conservatives all, these men think that the way things have ‘always’  been done  (always being for as long as a liberal democracy is run by property-owning white men) is the way things ought to be done – despite evidence of a growing discomfort (discomfort!)with the inhumanity our off-shore processing arrangements.

 

Island exile: nothing new here

Island exile as a social and legal control measure is not only central to white Australian history. It is said that St John was exiled to the Greek island of Patmos in the first century C.E. From France we have a rich store of lore: Napoleon was famously banished to St Helena, and prisoners including the elusive Papillon (butterfly) to Devil’s Island. Stories of the brutal island prison Alcatraz live on in film; while freedom fighter Nelson Mandela was labelled a terrorist and spent 27 years on Robben Island (and highly accessible island prison lore from the Smithsonian here).

This is not ancient history, any more than that notorious torture site, Guantanamo Bay on the island of Cuba off the coast of the US, is a thing of the past (I strongly recommend the account of David Hicks’ time there by his lawyer Major Michael Mori, pointedly titled In the Company of Cowards).

Placing particular people beyond the laws of the state is a key feature and purpose of island prisons. We are told this is to keep us safe. But the dominant purpose is to prosecute cruel and inhumane treatment of the banished. Cruel and inhumane treatment by the state, but out of sight of its true power base: the people, in a democracy. In other words, the island site is not to keep us safe from the banished but from knowledge of the cruel and lawless actions authorised by the government that we elected.

Island exile is thus a tried and true method of social control, as is exile in other forms. Even self-exile to the wilderness appears throughout the human story, and it is through stories that our species makes sense of ourselves and our world. This is a universal human trait, it is part of what makes us human, no matter where on the planet or when in the great expanse of our time on this earth.

Involuntary exile is a harsh measure of social control, and to an island is harsher again. It is therefore imperative on the leadership of the society that has imposed such a measure to tell a credible story about why a member of society has been expelled from the land itself, to another land. An island.

 

The past coexists with the present

Zooming in on the Australian colonial period (since 1770) there is no shortage of examples of how island exile has been used to control, up to and including ending, the lives of those who are devalued and dehumanised by a society.  This cultural hegemony has been passed down through two centuries and  appears unlikely to be dislodged any time soon.

This type of thinking placed greater value on the property rights a baker held in a loaf of bread than sharing food with the hungry. It denies the poor and the hungry their basic human sense of family, belonging and connection to country (as miserable and dirty a country was C18 England, it was still their home, the place where their family and friends resided). Nevertheless, it was the English way: steal a loaf of bread, be banished to a ‘remote’ island. As the old song goes, you’re bound for Kamay (Botany Bay).

But here is the thing. The remote island was not remote to the locals. The hostile landscape was not hostile to its First Nations populations. On this incredible archipelago, mother earth to over 300 sovereign nations, generations of Aboriginal peoples sustained societies for upwards of 50,000 years. These uncontested facts alone prove that the land is abundant and the people live in close harmony with it.

You may be familiar with the ‘great man’ approach to history. This methodology elevates individuals, as part of the perpetuation of liberal mythology. Shining a spotlight on just a few ‘great men’ illuminates much about the island gulag model that Australia continues to perpetuate to this day.

For example, Cook came here with the bloated botanist Banks, for whom the Dharawhal place Kamay was renamed Botany Bay, as was the home of our very own Napoleon, the Bankstown Bonaparte. These men arrived via the lands of the Palawa peoples. The English filled their barrels with fresh water on Palawa shores – without which they could neither sail nor live (sorry to be so obvious, but these basic facts are erased and ignored by great men in history narratives) from a ‘stream’ running into the sea, as streams are wont to do.

The lands of the Palawa were later called Van Diemens Land – or The Demon by those Irishmen on whose backs the vicious brutality of English penal practices were inscribed. This is the place where the Palawa peoples (‘Tasmanian Aborigines’, in colonial terms) were literally declared ‘extinct’. What we meant by this social Darwinian erasure was ‘brutally murdered – by us’.

But Palawa culture and peoples endure. The claim that there are no more Aboriginal Tasmanians is a lie. Meanwhile, Cape Barren Island was conceptualised by the English as a place for the Palawa descendants to die. Think about that. The English claimed to have ‘discovered’ a place where their own ‘great men’ would have perished of thirst without the sustenance of its streams. The English presumed to declare ‘extinct’ a people whose epic voyages predated the English by 50-70 millennia; peoples who survived the ice age that saw the island formed, when it was separated from the continent. In other words, the Palawa were there when the island became an island.

Back on the mainland, in 1788 Phillip set up camp at Warrane (Sydney/Circular Quay/Farm Cove). He established a punishment site at Mat-te-wan-ye (Fort Jackson/Pinchgut, more rocky outcrop than island but either way surrounded by a large body of water). He also sent a boat north to set up a secondary punishment island at Norfolk. This island, currently being bulldozed of its autonomy by the federal government, was an essential part of colonial survival strategy.

Here is how it worked. Like Tasmanian streams, Norfolk resources were key to the colonial project. Without decreasing the number of mouths to feed at Warrane, by sending them to Norfolk to live off mutton birds, the ‘second fleet’ and its cargo of human misery may have ‘arrived’ to find the Cadigal people burying a pile of white people bones.

‘Second fleet’, by the way, is in quote marks because of the absurdity and arrogance of English naming practices. As I have been writing about all post, this place is an island. It is a populated island. Yet the English claim is that the first ever fleet of boats to arrive here was in 1788. Such arrogance is boundless, like our plains to share oh wait. That we accept this naming claim as fact is too absurd for words. There was no other way to get here.

So Phillip used Sydney Harbour and Norfolk islands for both punishment and survival. Tasmania was also used as a site of punishment and exile as the bureaucracy was established. Langerrareroune off the coast of Tasmania, named Sarah Island by the colonisers, became a secondary secondary prison – an island off an island off an island. Langherrareroune was chosen for the rocky channel they called Hells Gates, in a fairly typical indicator of what navigating a boat to the island entailed.

Then there are islands where different clans of sovereign nations were forced together by the colonisers. This is the background to Palm Island off the Queensland coast, a place of great tragedy in a tropical paradise. The place of Palm Island in colonial thinking is akin to Cape Barren (note the name again. I wonder what Cape Barren is like?) off the Tasmanian coast. Again, different groups of Aboriginal people were forcibly transported, out of sight, out of mind, as were the convicts before them and asylum seekers today. It didn’t work, and it will never work. It is a terrible mindset, a terrible thing to do, by a people who proclaim themselves beacons of civilisation. Why isolate and be done with actual human beings, people who belong to this place?

My guess is fear. After all, we ‘won’, right? Yet no white Australian will ever say so in polite company. We do not celebrate this ‘victory’ (unlike a defeat on a foreign peninsula 101 years ago). Why? Do we want to deprive our opponent of treaty?

That the contemporary Australian state banishes the unwanted to remote island prisons is not innovative, it is not civilised, it is predictable and backwards. And if we are condemned by the international community, which we deserve to be, the world should also turn one eye to the origin of these traditions: a remote and windswept island off the coast of France.

 

Two preventable deaths, one colonial mindset

As I was writing this, news of two preventable deaths came streaming through the news feed. Within minutes of each other. The news was so sad, and so frustrating. I had been reflecting on the colonial mindset that informs Australian treatment of asylum seekers, particularly as colonisers of pacific islands, including the biggest island in the largest ocean on earth: us. Australia.

From the English imposition of its laws and ways on these lands to the ghastly gulags on Manus Island and Nauru, the idea that it is the laws and culture of a civilised society that produce such outcomes could not be further from the truth.

First there was the devastating news of the loss of Bangarra Dance Theatre musical director. Here is their statement:

The Bangarra clan is unbelievably saddened that our brother David Page is no longer with us. On behalf of Stephen, the Page family and Bangarra, we ask for your privacy and respect at this difficult time.

I pay my respects to the family and to the clan. He was only 55 years old. A towering talent. He achieved huge success with his brother, family and clan. I saw many Bangarra productions, most memorably a performance of Kin at Belvoir St, starring seven young brother cousins, on 26 January ten years ago.  The eulogies will and should be filled with praise. That 55 is the average life expectancy for Aboriginal men might be mentioned.

This sounds young, because it is. My father in law, a proud Aboriginal man, died of cancer at the age of 55. This is the terrible toll of a life expectancy twenty years lower for Aboriginal people than the rest of Australia. This is why the death of David Page also feels close to home. I miss them both, for their connection to country, for their teaching, for their generosity.

Then came news that the 23 year old man Omid who set himself on fire had died. I cry for Omid because I am a mother. My oldest son is 23 years old. I raised him myself. Singlehandedly. Since my daughter was three and my younger son was 15 months old, I have been the only responsible parent in this house. The only breadwinner. When I hear ‘mum and dad investors’ I am reminded that the political leadership of my country does not care about my household. However hard I work, which is most days, I will never qualify because there is no man, no ‘dad’ here. I dismiss the lies of government because I know what really matters. As a sole parent, a mum and not dad property owner (one house, no investment) all that matters is to feed and house and educate the children. Their health. Their well-being.

Yet we live in a place that demonises some while elevating the health and well-being of some people over others. This includes valuing some children over others. Some babies. Did anyone else find the sight of the Turnbull grandson running around Yarralumla fawned on by all, while refugee babies are locked behind barbed wire, monumentally disgusting?

We should mourn the great David Page who died too young and the life of Omid and other young people who commit suicide in despair including those suffering the intergenerational trauma that causes so much suicide in Aboriginal communities. As we do this we should reflect on our own lives; and on the origins and traditions of governance, law and justice in this country.

Daddy track messaging: More Turnbull strategy from a US television series

There is a scene in the final series of The West Wing where pollster Joey Lucas and Josh Lyneham, heading the campaign for Democratic candidate Matt Santos, explain how daddy-track and mummy-track campaign messaging works to junior staff.

JOEY: All this attention on the leak story, it’s magnifying the inevitable “Mommy Problem”.

RONNA: Mommy Problem?

JOSH: When voters want a national daddy…someone to be tough and strong and defend the country, they vote Republican. When they want a mommy, someone to give them jobs, health care…the policy equivalent of motzah ball soup, they vote Democratic.

As most politically engaged Australians noticed last month, Malcolm Turnbull was trying out yet another slogan when he ‘advised’ the Governor General to recall parliament. His strategy was designed to turn around his flagging popularity and take back the agenda from the Opposition, who had been releasing policy initiatives rather than sloganeering and backflipping. The grand announcement was classic daddy-track messaging and received accordingly by the predictable cheer squad in the mainstream press.

While conformist journalists praised the announcement as bold and Turnbullesque, Turnbull took to the airwaves to sell his paternalistic brand. He hectored and waffled about why the taxpayer should continue to subsidise the fourth and seventh investment properties of wealthy Australians. He spelt out the double dissolution election provisions in our constitution to senior journalists more patronisingly than the way I teach the same provisions to first year law students. It was squirmingly embarrassing and confirmed a long-noted view of Turnbull: he has terrible judgement.

And throughout these appearances, Turnbull kept repeating his new mantra, ‘continuity and change’.

Of course the punters in my corner of the twittersphere were onto it immediately. Another three-word slogan, we scoffed. Listen to Big Mal now hoho he has well and truly caught the three-word disease, said we. Oh so it’s continuity and change now is it. How much more sophisticated than Stop the Boats… wait. No. It is utterly meaningless.

I do not know who first googled the phrase and found it on the side of a fictional campaign bus from a US comedy series. Certainly Mark DiStephano over at Buzzfeed was one of the first to tweet it out. The show itself, VEEP, even bought into the ensuing hilarity and confirmed the slogan was grounded in meaninglessness, which seems apt enough.

VEEP

But all of this is old news and, outside social media, generally poo-pooed by commentators and punters who take themselves oh-so-seriously. You know the ones. They claim Twitter is a hive mind of manufactured outrage and adopt other pompous positions when their perceived seniority is threatened by new media, or millennials, or affordable degrees, or whatever it is that made the scared weird little guys feel scared and weird and little today.

Fast forward to 16 April, and at a completely unnecessary cost of millions, the Australian parliament has been elaborately prorogued with much ushering of black rods and what-not. Pomp and circumstance, sit down as I tell you this, are adored by conservatives. Nothing appeals more to the bunyip aristocracy than the archaic rituals of the colonial-imperial power.

Pomp and circumstance wells the conservative heart. Ushers of black rods and what-not remind them of ‘traditional values’ like shouting ‘neutrality! That’s our thing shut up! Only we can say what is neutral!’ while using and abusing ritual and tradition for cheap and grasping political ends such as desperately trying to stay in power while falling behind in the all-important opinion polls.

The claim that the Governor General is neutral – and that to suggest otherwise is some kind of taboo – suits conservative political ends. It is an exercise in invisibilising and reflects a wider methodology of wielding incumbent power. If the government can convince the commentariat and the electorate that the Governor General is neutral, while busily politicising the office of the Governor General, we may not notice the way incumbent power is being exercised to shore up the incumbent position.

In the same way, Coalition politicians use state power to extend ever-greater control over the citizenry – or specific groups of citizens, such as welfare recipients – while claiming to be the party of ‘small government’. Cashless welfare is not small government, nor are control orders or data retention, or billions spent to torture asylum seekers. This is big-taxing, big-spending, huge-control-over-human-lives government. Yet they persist with the lies of liberalism, because that is the preferred method of neoliberalism. It is all around us, yet invisible, like air – and like air, neoliberal politicians would have us believe that their power is inevitable and natural. It is not.

So has bold daddy Mal called on the Governor General to issue the writs for his double dissolution election on 2 July 2016 yet? No. The Australian parliament had nothing to do once it was recalled at massive expense and the Senate rejected the ABCC bill as per a simple phone call or news feed could have told anyone.

So in a predictably fractious and dreary, repetitive question time, Turnbull then told the Australian parliament that he will wait until after the budget.

‘I will advise the Governor General’, the Prime Minister shouted across the chamber, ‘the Governor General will consider that request, that advice, and he will make a decision.’

This, the Prime Minister lectured us patronisingly, is in accordance with convention.

Ah yes, convention. Like ushers of black rods and the neutrality of the Governor General, it is “convention” to pretend that the Governor General ‘considers’ the advice of the Prime Minister and then makes a decision. Simultaneously, it is “convention” that the Governor General do as the Prime Minister advises. This is clearly a win-win for both parties. Any action, even if it is the complete opposite of a previous or future action, can be justified by convention. No wonder convention is a thing beloved, if regularly flouted, by conservatives.

But the issue for the people is whether the electoral process, the constitution and conventions, the Governor General and the law, are being used for political ends by the Prime Minister in a bid to retain government.

The problem is this. The recall of parliament was done in the proper fashion, by letter from the Prime Minister to the Governor General, which Turnbull assured Cosgrove was legally backed by his Attorney General. You know the one – a QC who can not open the second tab on spreadsheets.

In the small print was a claim that the ABCC bill was so important as to warrant the recall of parliament because the government ‘believes’ that among other things the ABCC will boost productivity.

Obviously the government can believe any old thing it likes – and does, such as the meritocracy mythology that cloaks its every attack on the poor. However, this claim not only has no factual basis, it has been comprehensively disproved by economics professors at Griffith University.

The belief in a positive relationship between the ABCC and productivity began life as an error in an Econotech consultant report commissioned by a former Coalition Prime Minister who also had a notoriously loose relationship with the truth.

The falsity of the productivity and other claims, made by the Prime Minister for the ABCC to the Governor General, have been tracked by Crikey here and The Guardian here and New Matilda here. Among others. There is no doubt whatsoever that the government’s “belief” is a false belief. Not just lacking evidence but founded in – ahem – error (that’s the polite term). A known falsity that has been comprehensively disproved, a mistake that has been corrected by experts. Whatever, the claim is demonstrably false. Turnbull is lying.

There are those who would dismiss the fact that Turnbull is lying as mere politics, say hey, all politicians are liars. Sure. Both these responses are a reasonable reading of the situation.

But here is the problem. The Governor General cited the Prime Ministerial reasons for requesting that he recall Parliament in the Parliament, during the pomp and circumstance of proroguing the Parliament. His speech included the false claims regarding productivity, claims that the Productivity Commission has ‘distanced itself from’ in ‘unusually strong terms’.

The conservative position on this highly questionable speech by the GG is to shout convention! The speech contradicts any suggestion that the GG is above politics and the conservative response is to shout shut up! Neutrality! Only we can pronounce on what is neutral! It is the GG, and thus it must be neutral! That is how the GG or neutrality or convention or whatever suits us works!

Whether it is in the grand tradition of liberal democracy to politicise supposedly neutral offices, or for the head of state to mislead the parliament, is obviously up for debate. I would tend towards a yes stance here. We are talking about a system of government that simultaneously produced the doctrine of separation of powers while making the highest court in the empire a subset of an unelected upper house comprised of landed gentry. This is neither liberal nor democratic and it certainly indicates that nothing is above politics or immune from the power of incumbency.

Either way, the facts remain. The Prime Minister has relied on disproven claims for a belief he says the government holds. He has politicised the office of the Governor General. He has upheld the longstanding tradition of deploying the power of incumbency for personal political ambition. He has shouted convention! Tradition! Neutrality! Shut up! To anyone who points out these blatantly obvious facts.

The next day, Turnbull was citing his ‘strong expectation’ there will be a double dissolution election on 2 July 2016, and maybe there will be. But what’s that Skip? Strong, you say? Is he a big strong man in contrast to that wishy washy opposition? Like a big daddy sort of thing?

The next day, the concerns of the commentariat became the ‘risks’ for the Prime Minister and his strategy – risks that Turnbull imposed on himself. Recall this grandiose double dissolution announcement – once he had secured Senate voting reforms favourable to his party – was hailed as a bold constitutional manoeuvre, nay, Turnbullesque.

Here is what that adjective means: to say or do anything for power, no matter how narcissistic or false, no matter what abuse of incumbency and voting reforms and politicisation of a supposedly neutral institution. And above all else: to desperately project a public image of competent masculinity, while in the backrooms an unruly family of spoilt brats squabble among themselves.

Mommy problem

 

 

 

WHEN THE STATE WANTS MORE CONTROL: ON FREEDOM, EQUALITY, DIGNITY, AND RIGHTS

Last week (Saturday 21 November 2015)  I attended one of five rallies against cashless welfare that were held around the country. The rallies were in Modooga, Ceduna, Melbourne, Brisbane and Sydney. All were peaceful. At the Sydney rally, there were excellent speakers and no police.

A group of citizens who are deeply disturbed by human rights violations clearly do not pose the kind of threat to the peace (and opportunities for overtime pay) that came with the racist extremists who rallied the following day.

 

Ceduna residents rallying against cashless Welfare:

image

This post is an annotated transcript of the speech I gave at the Sydney rally, which can be viewed here. My thanks to Shaymaa Abdullah, who did a beautiful acknowledgement of country on the day, for recording and posting the speeches.

The speech relied on a quantum of prior knowledge on cashless welfare: the policy, its racist origins, and the legislation that recently passed both Houses of Parliament – explanatory memoranda available here.

The cashless welfare bill was passed by the lower house the day that Malcolm Turnbull was sworn in as Prime Minister. This as much as anything tells us that life under Turnbull will be no better than life under Abbott, because the same people (Morrison, Dutton, Bishop) are doing the same things (violating the fundamental human rights of traditional owners, asylum seekers, the poor) with the same ideology.

I started with an acknowledgement of country. I sometimes hear white people rushing through a pro forma Acknowledgement like it is some kind of meaningless chore. It is not difficult to follow basic protocol, such as acknowledging the mayor or local MPs at a community event.

Acknowledgement of country is a simple matter of protocol, etiquette, manners – it does not redress dispossession or genocide, it merely shows respect.

‘I’d like to also start with an acknowledgement of the traditional owners. Of the Gadigal nation. I pay my respects to those who have held and passed on the knowledge, not only for upwards of 40,000 years, but also through centuries of violent dispossession, and attempts by the colonial-settler state to wipe out that knowledge. And I pay my respects to elders past and present.”

I introduced myself and the university where I work and warned the audience ‘I’d like to say a couple of things about the Constitution, which is not immediately riveting, but is very relevant to the state of our democracy today.

Cashless welfare is not new. The Northern Territory Emergency Response Act 2007 (Cth) was passed with a stated purpose, and an actual purpose. The actual reason for the Act was for the re-election of John Howard as the Liberal Prime Minister of Australia. In fact, he lost both his seat and government. So it failed there.

The stated purpose was to address child sexual assault, alcoholism, pornography, in remote Aboriginal communities.

This disgusting slandering of Aboriginal people is also nothing new. It characterises Aboriginal men as sexual predators, which is radically at odds with historical record and contemporary reality, especially for Aboriginal women.

Or as the late Auntie Vera Lovelock said to me, ‘Where do they think the blue-eyed babies came from?’

The Northern Territory is often treated as some kind of giant social experiment. There is a reason for this. As a Territory and not a state, it does not retain the residual powers of the former colonies and now states of Australia. This means that the Territory is effectively under Commonwealth control.

Under s. 51(xxvi) of our Constitution, the Commonwealth has the power to make special laws for the people of any race. Special laws. Which means that it is imperative on any government that wants to operationalise this section to create a moral panic – and insist on the need for a special law for the people of a particular race.

In reality, this power is only ever used to dehumanise and oppress Aboriginal people, the traditional owners and First Nations people of this country.

Can you imagine a Commonwealth government saying we need a special law for the people of the Caucasian race now? That never happens. Can you imagine a government saying we need a special law for the people of the Mongol race, or the Negroid race? Nobody even uses these words any more. Yet here we are with special laws for the people of the Aboriginal race (so-called).

While race is a completely outdated and discredited notion, racism and racists remain among us to this day. We know that the areas where cashless welfare is being rolled out to the ‘mainstream’ have a particularly high proportion of Aboriginal people on social security, on income support, on welfare. Think about those words.

We have a social safety net in this country. We have universal education. Universal health care. We subscribe to the notion that our people should not be starving and dying in the streets. That is the point of social security, and anyone can find themselves on it.

A few months ago Tony Abbott was asked what he stands for. As in all known circumstances, he was incoherent, couldn’t gather his thoughts, didn’t know what he was talking about. But eventually in his incoherent and stumbling way, Abbott said that he believes in small government.

Here’s a quick tip about words:

when a politician says ‘I believe… X’ simply ignore everything that comes after it.

When a politician says ‘I am determined to… X’, don’t bother with that either.

And when a politician says ‘protection’, switch it to control. No-one can ‘protect’ anything unless they have a measure of control over it.

Ask any Aboriginal person what government ‘protection’ means to them, to their family.

Anyway, Tony Abbott reckons he believes in small government and if Malcolm Turnbull was asked if he does too, Turnbull would be compelled to say the same thing.

Cashless welfare is not small government. Data retention is not small government. All the anti-terror legislation passed since 2001 are not small government. This is huge government.

A government that decides what you can put on your shopping list, based on your income, is not small government.

Cashless welfare is also incredibly expensive. There are no efficiency dividends to this policy. There are massive costs involved in rolling out the hard ware and the software – the card, the compatibility systems – in the IT workers and case workers – all paying middle class mortgages with poor peoples’ lives.

This ‘just doing my job’ complicity is, as ever, disgusting.

Cashless welfare is scheduled to start in Ceduna in February if the government can not be stopped and held to account for the gross human rights abuses it embraces. The massive reach of this legislation is over all people with disabilities, all sole parents, all carers, all unemployed people, students, youth and sickness allowance recipients.

Everyone except veterans and old age pensioners in receipt of income support can be attacked under this Act.

The stated purpose of cashless welfare is to improve the health of welfare recipients. There is no evidence, no proof, and no truth to this claim. It is the kind of claim that politicians make on the well-founded assumption that most will not seek further (or any) evidence.

In fact, all the evidence from the Northern territory since 2007 shows poorer nutritional outcomes, lower school attendance rates, more children forcibly removed from their families by the state, more women hospitalised as a result of injuries inflicted by family members.

Nutrition, school attendance, stolen children and hospitalisation for assault are all outcomes which heavily and negatively impact on people’s health and well-being. The policy is dangerous and harmful. It is state-sanctioned and state-sponsored violence.

And again, it is also incredibly expensive. Every single dollar going into the pockets of the IT workers and case managers and card manufacturers could be spent on actual real health services for low income people.

Like dental care, for example. Rich people get to keep all their straight white teeth. Poor people do not. This effects every single aspect of life, from nutrition to job prospects. The primary costs do not even begin to take into account the huge increase in costs to the criminal law system. This is a cost to the states and territories, not the Commonwealth.

Grotesque vote-buying populism from a Commonwealth government that passes the costs on to the states is also nothing new. One of the worst examples of this can also be attributed to John Howard, who orchestrated the so-called baby bonus. This irresponsible and profligate spending sheeted back huge costs: to youth shelters, womens shelters, high schools, community services departments.

This is the real record, the true legacy, of a party that Australians persist in seeing as ‘better economic managers’. They are not. They are terrible economic managers. Absolutely hopeless.

The Liberal Party of Australia as a group are socially privileged, economically illiterate, and cruel. Their privilege and wealth is sustained by the poor; and their political power is sustained by members of the comfortable middle classes who insist, for their own self-interested reasons, on believing the mythology of meritocracy.

This is the actual purpose of every inhumane measure of control over the poor, over people with disabilities, over Aboriginal people, over women: to sustain the lie of merit-based reward in the liberal democracies.

The case against income management is strong, and is over eight years old in the Northern Territory. No case has been made by anyone with the power to stop the expansion of this highly questionable policy – not for the breaches of the Anti-Discrimination Act, the attacks on people with disabilities, the poverty and shame and humiliation and hardship that cashless welfare will inevitably, undoubtedly produce.

All humans are born free and equal in dignity and rights.

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On Democratic Principle, the Fourth Estate, and visiting Nauru

The evidence is in. Any optimism for noble principle – as enunciated by the Universal Declaration of Human Rights, the 1951 Refugee Convention, the Australian Constitution, the Rule of Law itself – is entirely misplaced.

As is to be expected under neoliberal policy settings, this month has seen disturbing attacks on separation of powers, human rights, and, such as it is, Rule of Law. To anyone who tries to avoid terms like “Orwellian”, or “police state” (or worse), or breaching Godwin’s law.: here is what is really going on.

Realpolitik is not cynicism.

There is a small-l-liberal-social-democratic heart that still beats away in this chest. I blame early indoctrination and an increasingly desperate and misplaced optimism that not every single liberal ideal has been a lie from day one, as well as viciously attacked – and those attacks also lied about – by its own representatives, those who call themselves liberals. Yet for centuries, there has been nothing liberal about liberalism.

Here is a hugely abridged timeline, which begins post-Tampa and September 11, events and legal proceedings which had indescribably heavy impact on the gross human rights violations we see today, as committed and promoted by successive governments. For yet more context on what is happening right now, see this post from a year ago.

2001: Immigration detention camps established on Nauru as part of the Howard government ‘Pacific Solution’.

2008: Immigration detention camps on Nauru closed by the Rudd government. The asylum seekers who were there at the time were granted residency in Australia.

August 2012: Immigration detention camps on Nauru re-opened by the Gillard government.

September 2012 onwards: asylum seekers who arrived in Australia by boat transferred to Nauru (as well as to Manus island) by the Australian government.

Saturday 3 October 2015: Nauru government announces that asylum seekers would be allowed to come and go from the detention centre without any restrictions from Monday.

Monday 5 October 2015: Nauru government announces it will process all asylum seekers in offshore detention ‘within the next week’.

Tuesday 6 October 2015: Reports being to emerge that the High Court of Australia will examine the legality of off-shore detention.

Wednesday 7 October 2015: High Court begins hearing submissions that the Australian government is effectively responsible for the detention of people we transfer to Nauru.

Thursday 8 October 2015: the two-day hearing continues. The government solicitor argues that the (four day old) announcement by the Nauruan government about “opening camps” and “processing asylum seekers within a week” meant that the plaintiff was not “detained”.

Sunday 11 October 2015: A 23 year old Somalian refugee known as Abyan is flown to Brisbane. Subsequent debate is horrendously dehumanising, but the uncontested facts are that Abyan is pregnant and she was flown to Australia because abortion is illegal on Nauru. The urgency of this medical procedure is, in all the circumstances, widely accepted to be on the grounds that she was raped and the rapist caused the pregnancy.

Friday 16 October 2015: Lawyers acting on behalf of Abyan file an injunction in the Federal Court to seek an order that the Australian government not force her to return to Nauru.

Friday 16 October 2015: The Australian government flies Abyan back to Nauru by chartered military aircraft.

Monday 19 October 2015: Reports appear that a Murdoch media employee, Chris Kenny, who holds positions across print (The Australian newspaper) and broadcast (Sky channel) arms of the corporation, has obtained access to detention centres, and spoken to asylum seekers and refugees, on Nauru.

Tuesday 20 October 2015: More reports, including the uncontested facts that Kenny, escorted by armed guards, went to where Abyan was staying, and questioned her about rape.

There is more, much more, and I would usually expend considerable energy on interrogating the viciousness of our polity; the apologia and faux balance of our mainstream media; the vicious misogyny and racism that we perpetuate. I would shout how this horror violates the most fundamental human rights of Abyan, and thus of black people and of woman everywhere.

But enough. There comes a point, long since passed, where any comment, including expressions of disgust at our government and those aggressively promoting its horrendous actions, are further violating and erasing the humanity of Abyan herself.

What we should be pondering now is that we claim to have a national culture, and values. We say we adhere to such high falutin ideas as liberal democracy, accountability, and the rule of law. It is said that we ‘inherited’ the Westminster system, and with it, the doctrine of separation of powers. In fact these noble ideas (by which I mean lies told by the nobility in England) were forced on this country and her peoples.

There are principles attached to doctrine. It is supposed to have content, and meaning. For example, the legislature passes a law. The executive in cabinet – that is, the minister – delegates implementation of this law to the executive government – that is, public servants (such as the Australian Federal Police). If that law is challenged (for example by counsel for concerned people, in a democracy) the High Court of Australia, in its original jurisdiction, is meant to be an independent tribunal of fact, which hears and decides on the legality of our government’s laws and actions under those laws.

In theory, in a liberal democracy, the media is the Fourth Estate. It has a job. A role. Its job is governed by public interest, and professional journalist ethics. The public has a right to know, for without information we can not decide for whom to vote, in a free and democratic election.

By the way, the first, second and third estates, are the church, the nobility, and the commons. As in, the House of Commons and the upper house members, who they actually call Lords, in England. Those who – as the House of Lords and the Privy Council – double as the court of highest appeal. Have we ever had separation of church and state, separation of legislative and judiciary powers? The answer is no, we have not. Not in the past, and if we continue to be gullible and naïve and invest in ahistorical narratives that focus on the daily outrage, not in the present or future either. Our so-called principles, the ones we teach and reproduce and promulgate and base life-threatening and life-destroying decisions on – are a sham. Non-existent. An empty shell, and a danger to (almost) all.

This, and much more, is what the white feeding frenzy around Nauru, and in particular around a single traumatised young black woman, is about. We white liberal-loving folk are in melt down. We thought our governments were basically good. They are not. We thought our governments, essentially, had our best interests at heart. Wrong. Take a look at the history of abolition, of womens suffrage. Take a look at Malcolm Turnbull, a man who has speechified on climate change and a republic and same sex marriage as though he would stake his career on addressing these urgent matters, the urgency being the destruction of the planet, and of human rights and interests. He will not. He will do the opposite.

Meanwhile, a young woman is repeatedly violated by all involved. The chatter will not cease. I admit my own complicity in this horror. What is the answer? Is there an answer? How is it that an identifiable group of people – and rich white married cishet ablist Christian neurotypical men are a tiny minority – are still in charge of households, corporations, countries, the planet? When they are demonstrably terrible at their job? Incapable of running any jurisdiction without harming everyone else?

Wherever we look in Australia, this dominant hegemony who set the agenda – in the legislature, the executive, the judiciary and the fourth estate – will continue doing what they do, and to be handsomely rewarded for their actions.

It is possible that the human rights lawyers fighting the detention and control case in the High Court will succeed. They have a strong case, and I hope that they win. Lawyers can be heroes too. But being a hero is tinkering at the edges. If they win, they will celebrate. Something will change. Many other things will not. The destruction of the planet, and of most of humanity, will go on.

 

Legislation is policy. Law is politics.

Not really. Not precisely. But now I’ve got your attention, legislation is all about policy, and politics is all about law.

While going about my communications in the Twitterverse this week, many people asked me whether there is a legal process by which we can get rid of an obviously incompetent and distressingly cruel government. It dawned on me that there is a profound misunderstanding about the relationship between politics and law; and more specifically the relationship between policy and legislation.

Most of us have a working knowledge of democracy and its basic tenets. Not law so much. There is a widespread set of assumptions that the law is somehow all-powerful, internally consistent, and apolitical. These false assumptions are carefully cultivated by the ruling class. In a democracy so-called, the ruling class is made up of political elites and the corporate donors who invest in political power-holders.

People break the law every day and get away with it. So the law is not all-powerful.

Cases are regularly successfully appealed, and often decided by a majority of the bench rather than unanimous view. So the law is not internally consistent.

Legislation is made by politicians. That is in fact their day job – to pass legislation on our behalf. The notion that this process could somehow be apolitical requires a complete suspension of disbelief. It is too silly a proposition for words. Laws are not apolitical because laws are made by politicians in their role as politicians. Politicians have other roles than passing legislation, but the passing of legislation is their core business. Law is inherently political.

Arguing otherwise is like talking to those people who say they are ‘not into politics’, but can not understand that their stance is a specific political position.

The relationship between policy and legislation is a specific iteration of the relationship between politics and law. Legislation is codified policy. It is a policy, or political promise, codified into law. That is how the system works. It is designed to work like this. I am not exposing a scheme any more corrupt than democracy itself – a system of government created by propertied white men for propertied white men. Much has changed, but not so much that we can not make our democracy more democratic.

Here is how a law gets born.

A group of people, mainly men and mainly led by men, and operating in a hyper-masculine patriarchal space, get together and form a political party. They encourage others of same mind to join their party. They establish all sorts of infrastructure for their party: membership, meetings, and policies. Their policies are made up of political positions on the best way to govern a society and its economy. These are bundled together and called a policy platform. The political party stands on its platform and campaigns for votes, to garner political power, in order to implement their policies. When they win government the members of the political party (the politicians) draft and pass legislation. Now they can legally implement their policies, because they have followed the accepted process with legal authority to govern in a certain way. They have codified their policy into a statute which has been passed by both houses of parliament.

Some political parties care about the planet as well the society and its economy. This is a relatively recent resurgence of understanding: that the environment is crucial to the existence of humanity. In Australia, humanity’s first responsibility to the earth was understood for millennia, but much of that vast knowledge was destroyed between 1788 and the present. Thankfully, the custodians of this knowledge are incredibly strong and resilient survivors who are also generous with much of their knowledge, as it is embedded in a culture of inclusiveness and sharing. Nevertheless, non-Aboriginal Australians are re-learning the hard way that the law’s preoccupation with people and property is anthropocentrically selfish, ignorant and destructive; and that the planet matters too.

If the political party that has come into office – by the accepted method, which is ‘free and fair election’ – and passes a piece of law that is not lawful, they can be brought to account by people with sufficient time and money to challenge the legislation in the High Court of Australia. The court is made up of seven judges. All courts are made up of an odd number of judges, so that a majority can decide closely contested cases. It is not unusual to see laws struck down, or precedents over-turned, by a majority of the High Court. A unanimous decision on the other hand is rare indeed. Not even Mabo, the most powerful High Court decision of our time, was decided unanimously. Dawson J dissented (and I never read another judgement he wrote. Not even if it was a set text. I read Justice Kirby’s judgement instead).

As most people are aware, the High Court decides the matter based on the facts and law. This is a judge’s job description: apply the law to the facts and reach a decision, and put the reasons for the decision on the public record. The arguments of over which law and which facts are put before the court by lawyers for each party to a dispute. This is the bit that tells us why persuasive arguments are so important to democracy. Remember, the politicians have already persuaded you to vote for them, based on the appealing arguments they have put about their policies, the best way to govern the society and its economy (and possibly the planet). Now someone has observed that the government may have overstepped the power handed to it by the voters, and asked the High Court to decide on the matter.

That decision will depend on the arguments submitted by lawyers about different ways to interpret words that have been arranged into sections and clauses and schedules and regulations and all the other ways that law is manifest. All of this in its entirety is a legal process originating in a political process. The point is that every aspect of it entails human beings in specific power relationships. The rights of other humans and their power relationships are always at stake. Again, think of the Mabo case, the iconic decision of a generation. How was it done? Who made it happen?

Eddie Mabo was a groundskeeper at James Cook University when he fell into conversation with one of the academics, Henry Reynolds. That conversation triggered more conversations which led to even more, ritualised conversations such as formal submissions to first the Queensland Supreme Court and ultimately the High Court. When Mabo was first recognised at law as having native title rights, the politicians stepped in and passed another law to quickly and retrospectively extinguish any remaining property rights of Indigenous peoples in their land. The High Court found that the state of Queensland had wielded power it did not have. The governing party of the state had acted ultra vires, beyond power.

Democracies are characterised by power-sharing. The shorthand used to communicate this is ‘checks and balances’. The formal name is ‘the doctrine of the separation of powers’. Power is distributed across separate arms of government so that not all power rests with a single body. The power to govern originates with the voters. The restraints on government power are the upper house, the High Court, and elections. The best illustration of the system working is a story about the Communist Party of Australia.

The story is set during the post-war Menzies era. Keep in mind that voting-age Australians had lived through the war. They had seen pictures of the liberation of Auschwitz. Anyone who had read a newspaper had a working grasp of the dangers of unrestrained power. The world had just witnessed some of the most devastating results of unrestrained abuse of power known to humankind. Not just the Nazi death camps but the bombing of Hiroshima and Nagasaki, the whole steaming killing frenzy of war on a mass scale. Into this environment we must add Stalinism and the Cold War propaganda machine. The entire post-war era was saturated with communist propaganda until recently. These days, the same tired old techniques are used to create fear of terrorism instead. Even the most cursory of glances through history reveals that the end of a war brings not peace but a frantic search for new enemies and markets. The military-industrial complex has dominated the modern human experience, although it is rather unfashionable to speak of it. In those brief moments between foreign war waging, the state mobilises the prison-industrial complex instead, and wages war against its own people, such as the ‘war’ on drugs.

So when the Menzies government tried to ban the Communist Party of Australia (CPA) it was always a politically risky move that required truckloads of anti-communist propaganda to support the case. Propaganda is wheeled out when there is no rational, logical argument for a transfer of power, a shift in the power-sharing arrangements. Men in power always seek to transfer power from the citizenry to the state, because they run the state. In this case, the government sought to outlaw a political opponent, and a savvy political opponent at that.

The Communist Party lawyers took the case to the High Court and persuaded the bench, using logical, rational legal argument, that it is unconstitutional to outlaw a political opponent in a democracy. This should be a no-brainer. Where governments seize power to outlaw the opposition, we end up with a one-party state, which is the opposite of a democracy.

Being nothing if not cognisant of the law and the political system, the Menzies government then took the question to the ultimate arbiters in a democracy. A referendum was drafted, and put to the people at an election. All of this was of course accompanied by frenzied propaganda, enthusiastically reproduced by media cheer squads. The propaganda and fear-mongering were necessary for the same reason it is always necessary: the idea itself was a poor one. A stupid idea. An anti-democratic policy.

The Menzies government was returned, but the referendum was not passed. The Australian people effectively said to the Menzies government: here, we will elect you democratically but not confer on you the power to diminish our democracy. The system worked. Australians safeguarded their democracy from excessive power of the state, in this case to outlaw a political opponent.

There are lessons, as always, in this history. Last time the anti-terror frenzy was whipped up by a Coalition government, the Greens tried to make commitment of Australian troops to a foreign conflict a necessary decision of parliament. In other words, the Greens presented a sensible, moderate, restrained limit on executive power by arguing that taking the nation to war required the Parliament, rather than the government of the day, have the power to make the decision. Of course the major parties united in their own common interest and voted the amendment down. All major political parties can smell a power grab and rush it through. It doesn’t matter which major party proposes the power grab. The other major party will rub its hands with glee at the prospect of its future grabbing of the levers of power.

The same thing is happening today. The money-grubbing power-hungry policy-vacant minds of the Commonwealth government are talking gravely of a terrible threat to the nation, enthusiastically brandishing imagery of swords and witches’ brews and other fermenting cauldrons of mediaeval primitive Muslimish threats. The Australian people are gravely assured that we must ‘sacrifice’ some freedoms for security. They tell us the problems are deeply complex, but can be solved with new legislation and military aggression. It was ever thus. The proposed legislation is simply a transfer of power from the citizenry to the state and its heavily armed and extremely powerful agents (ASIO, the ADF, the AFP).

The actual complexities, such as the role of the west in producing todays problems, are never mentioned. According to teh dominant narrative, the arguments that are made by politicians and reproduced by the mainstream press, none of the mess in Iraq, or Syria, or Kurdistan is of our making. Rather some random extreme danger has sprung out of nowhere and is lapping at our shores. The only possible cause raised other than super terrorist Islamic Islamicness is social media. Yep, that’s right. Nothing to do with weapons manufacturers or ill-conceived military adventurism by profiteering warmongers of the west, but maybe social media played a role. Power-holders hate being held to account by people using social media. This is because so many of their lies and mediocrities are distributed so rapidly. So they decide that social media could do with a little bit of demonising while we are in demonisation mode.

To the people who seek answers on what to do with this appallingly inept government, who inquire as to legal solutions to a political problem – and political problem manufacturer – I am sorry there is not a better answer. I hope this post has at least provided some clarity on how our democracy works and why we can not just fire the PM for being a fearmonger and a liar and a sexist racist homophobe. I wish we could.

The law can not stop the state unless the citizenry insist that the law at least examine the actions of the state and determine the legality of its actions. What makes its actions legal are the drafting and passing of statutes through both houses of parliament by a vote of our elected representatives. When the government of the day is doing a terrible job, when it can not pass the legislation that has been drafted to codify its policies – such as what to spend the nation’s tax receipts on in the case of the spectacular failure of its first budget – the government turns to propaganda. And the most time-honoured topic of propaganda is war. And that is what we are watching today in badly-governed, geo-politically safe but very racist Australia.