Category Archives: Logic law and politics

Australia, our white supremacy is showing

In the days after the night before a senator used nazi rhetoric in the Australian parliament, I watched carefully to see who would say what about possibly the most straightforward question in public discourse: is nazi rhetoric bad? Is it wrong?

The answer is yes. This is both objective moral fact and global consensus. Yet there are places in the world where nazi rhetoric is acceptable public discourse. One of those places is the micro-party headed by Australian politician Bob Katter.

On Monday week (27 August 2018), the Australian Broadcasting Corporation (ABC), our national broadcaster, will provide Bob with a panel show timeslot to explain away how his colleague using nazi rhetoric in the Australian Parliament is really no big deal and also ‘magnificent’.

 

 

This decision is wrong, and dangerous. Before I say why from my perspective, I want to point to Put Away Your Ball, This is not a Game by Karen Wyld at IndigenousX and Australia is Racist, But not in the Way You Think by Natalie Cromb at NITV-SBS. That Karen is a Martu woman and Natalie a Gamilaraay woman is not a coincidence. The collective moral authority of Aboriginal women in this country is grounded in the ontology of cosmos, kin and country, and also applies to racist discourse.

A Platform for Racists on the National Broadcaster

The QandA tweet above features George Cristensen, a Nationals party MP who in July 2015 told a neo-nazi rally in Mackay that we are ‘at war with radical Islam’. It also features Pauline Hanson, a former Liberal Party and later eponymous One Nation candidate, who told a neo-nazi rally in Rockhampton she is ‘against Islam’ because there are ‘places in Sydney, the streets that the police will not go into. We do not want sharia law in Australia’.

None of this has any basis in fact. Their hate speech is freely available online.

Then there is Bob Katter, who sat as a Nationals MP for 23 years, and ten years as an independent, before establishing his eponymous ‘Australia Party’. When a One Nation defector signed up, the BKAP parliamentary presence doubled. On debut, the new recruit called for a christian european migration policy to which ‘the final solution’ is a popular vote to ban Muslim immigration.

For this effort, party leader (of two) Bob Katter called a press conference and said the speech was ‘gold’ and ‘magnificent’ and he stands by it ‘one thousand per cent’. News organisations across the country, of course, reported the ‘final solution’ speech and the endorsement. Half the breakfast television programs also invited the newly notorious senator on, to deny and deflect and dismiss, to minimise and justify his nazi phraseology, and to build his brand. When ‘the final solution’ was placed in its historically accurate, objectively true context, which is literally Hitler, the senator complained that he was ‘taken out of context’ and being silenced.

The parliament and the polity

Now I do not give a fuck what Bob Katter and his fair weather friend have to say, on migration or any other policy. I am, however, deeply invested in whether the Australian polity, the electorate, the political class, the government leadership and journalists and reporters and commentators, know what to do when faced with real live nazi talk.

The correct response is unambiguous condemnation and no further correspondence will be entered into. The correct response is to immediately announce policy, process, and regulatory changes that do not require extended debate or legislation. Some examples are: standing orders to limit hate speech and parliamentary privilege; commitments to not accept nazi-sympathiser votes on any bill and to not give them a pair on any vote; announcing that BKAP will be put last in every preference deal in every single seat across the country.

Such measures could be announced with bipartisan support while a more substantive response is developed. All it would take is political will. But politicians are power-seekers like corporations are profit-seekers. Neither major party will put the national interest ahead of political ambition or political agenda, even though shutting down nazi rhetoric is in the national interest.

There is nothing unusual about the parliament operating contrary to the social good, or even what we might assume is consensus morality (before the apologists go to work). Like all our institutions, the parliament is dominated by able-bodied and married white males from comfortable backgrounds. This demographic are the last people on earth to understand what life is like for everybody else, because our society is shaped by them in their own image and to further their own interests.

First Principles

To bring together these two strands, of real-time events and the response, this last point is crucial. Like corporations and political parties and governments (and bureaucracies and religion and universities), media organisations are dominated by the same demographic, with the same vested interests. The media also has public interest obligations as the fourth estate in Westminster systems.

I have written about this in more detail elsewhere, but briefly, the first estate is the church, the second the landed gentry and the third is the commoners. These institutional power arrangements are manifest in the House of Lords (knights temporal and spiritual, dukes and archbishops etc) and the House of Commons which, up until the twentieth century, was comprised solely of property-owning men without aristocratic titles.

On Gadigal lands, for instance, Phillip handed a glebe (now Glebe) to the church of england within months of his fleet landing at Warrane (now circular quay). Wherever the invading military – captain/governor and marines/redcoats – massacred First Peoples and seized their lands, the church was there like a faithful dog to get its piece (with apologies to dogs).

The task of the fourth estate is to report the actions of the government and policies of her majesty’s loyal opposition. This obligation is at the heart of democratic principle, because if the people are not informed of government action and alternative policies, the system of government becomes in effect a one-party state, which is undemocratic.

Everybody operating in this domain is acutely aware of incumbent power above all other considerations. This is because the central organising principles of white patriarchy are domination and control, up to and including pursuit and maintenance of domination and control for its own sake. This is why most political media scrutinise opposition policy as though they are in power, and report government announcements as though meaningful action has already achieved the [stated] policy goals.

I am alert to how basic these explanatory statements sound. One reason for going over all this is my own pedagogy, which is based on first principles. When students (I teach future lawyers and police officers) lose sight of something as fundamental as equality before the law, or presumption of innocence, it is harder for them to comprehend the structure and function and direction of the law and legal system.

First principles are also an entry point for distinguishing ontology from epistemology, or deontic ethics from moral relativism. It is not difficult to accept that equality before the law is good, or that nazis are bad. What could be more straightforward? Yet the predictable rearguard action from mediocre white males with positional power bestowed by patriarchal institutions – universities, media organisations, conservative incumbency – are out here right now minimsing and trivialising nazi rhetoric as though it does not pose a serious threat to society because it does not pose a threat to them.

Get real, mate

The sheer volume of nazi apologia, and equally repulsive praise for weak rebukes of nazi hate speech that has been disseminated by Australian media this week is quite overwhelming. On the one hand, it is business as usual. The Commonwealth of Australia, in contrast to the 65,000 years of human histories and connection to country on which our nation state is built, is constitutively racist.

By this I mean that racism is woven into our social fabric, racism is a central organising principle of Australian hegemony, racism can not be disaggregated from the Constitution which federated the then-colonies, nor from the invasion which enabled the colonial project. These are not contested claims, or disputed facts, or up for slippery usage by dominant voices who revel in imposing category errors on public debate.

Anybody can read ss. 25 and 51(xxvi) of the Constitution and see that race is constitutive of the Australian nation state by the authority of its founding document. There is no need for revisionism or reactionary nonsense or not-fair whining about anachronistic arguments. It is all right there in black and white, in the English language, in the meaning of the word constitutive and in the provisions of the Constitution itself.

On the other hand, that the dominant response is an enabling of nazi rhetoric, by treating it as a legitimate topic of debate, is to some extent quite shocking. Clearly not everyone assumes they would join the resistance if the time came, but I always did, and I still do. There is no mistaking ‘the final solution’ speech in the senate, so the mistake is assuming that incumbent power can, and will, stand up to nazi speech for what it is.

First principles come in handy here. If you know in your bones that nazi talk is bad, there is no compulsion to entertain nazi apologia. In contrast, those who are deeply invested in positional power and the status quo are hugely frightened by the possibility that the masses will mobilise against whatever has brought us to this point, this current state of affairs, this reality of nazi speech in the parliament in 2018. Are they somehow complicit? Should they admit it? How did this happen on their watch?

The answers are yes, yes, and because they have no fucking idea.

From Malcolm Turnbull to Peter van Onselen, from Richard Glover to Peter Hartcher and Katharine Murphy and Cathy Wilcox, the collective and aggressive denial from the political class – the leadership and the media – the reporting and the commentary – has been a wall of stubborn ignorance, complicity, equivocation, and denial.

A potted timeline of the nazi discourse

Senator Fraser Anning: the final solution… is a ban on Muslim migration.

Punters: this is nazi speech. He should be unambiguously condemned.

MP Bob Katter: this speech was solid gold, magnificent, I agree one thousand per cent.

All of commercial television: Mr Anning/Katter, welcome to the program.

ABC television: Bob Katter ‘has a right to be heard’. Here he is on our next panel

[Narrator: there is no ‘right’ to be heard under any Australian law].

Malcolm Turnbull: most successful multicultural nation freedom democracy rule of law.

Political journalism: great rebuke! Well done, Malcolm.

Parliament: racism is bad.

Media: Yay political leadership! Australia is good for saying racism is bad!

Richard Glover, ABC host: *sniff* it was so moving how [the first ever] Labor Party Muslim MP and the [first ever] Liberal Party Jewish MP did hugs Australia is truly great.

Punters: *eye roll* wow like a Muslim and Jewish man both of whom happen to be white in the 21st century you say? Amazing. So. Tolerant.

Professor of politics and ABC host and panellist Peter Van Onselen on twitter: Nazism is considered a branch of socialism.

Twitter: You are wrong. Nazis are bad and your tweet is bad.

Van Onselen: the vile abuse I have received on twitter is bad. I will not reply further except to journalists from major news outlets here is my op-ed in a national broadsheet on national socialism.

Punters: Stop doubling down on your defence of nazis.

Paid employees of major news outlets: I hate how twitter piles on to good people because they purportedly (sic) got something wrong [like saying nazis are socialists].

Twitter: oh for fucks sake. Nazis are bad, nazi rhetoric is bad, defending nazi speech is bad.

Legacy media: twitter is bad. There are trolls on there. Here is a black woman whose lived experience of vicious and violent racism validates the white man who is sad and wrong.

Applied morality

I am not trying to be funny. Some things are not funny, like rape, and racism. I know this, because there is no way to do rape or racism without causing harm to other people. This is one of the great efficacies of first principles: setting your moral compass to true north. Applied morality is ethics, and ethics is about other people.

Our culture insists that having a conversation produces solutions for a more just society. This can be true, but it is false when the conversation is exclusive, hierarchical, and wedded to the central organising principles of domination and control. Add in the assumptions that selfishness (‘self-interest’) is rational and universal, and that aggression (‘competition’) is success, and the conversation is quickly derailed by the most dominant and controlling participants.

So here is the thing. If application of your morality causes harm to others, the trick is to keep it to yourself. Whether professor or edgelord or political journalist, some conversations (and personal opinions, and proclaimed expertise) are not only devoid of value but also cause harm to other people. If your moral compass points to defending nazi speech, or debating the definition of nazism, or telling the public we should have a conversation on the ‘merits’ of hate speech, it is malfunctioning.

The right thing to do here is stop talking.

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Indigenous Peoples have the right to determine their own identity

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

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

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

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

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

The colonial jurisprudence of imposing identity

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

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

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

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

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

Defining Aboriginality in 2018

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

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

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

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

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

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

The new law, just like the old law

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

1 Section 3 5

Insert:

Indigenous person means a person who is: 

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

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

4 At the end of section 24 18

Add:

(6) At least one Commissioner must:

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

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

 

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

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

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

In other words, a mission manager.

The three-part test

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

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

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

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

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

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

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

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

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

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

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

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

Myths of Westminster democracy

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

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

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

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

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

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

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

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

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

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

Myths of Westminster 1: Ministerial accountability:

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

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

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

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

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

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

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

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

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

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

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

The Fourth Estate

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

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

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

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

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

Why indeed?

The upshot

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

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

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

 

Equality before the law is a fundamental right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The amendment breaches two fundamental principles.

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

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

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

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

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

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

Here are the answers:

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

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

Here we go again: Race, racism and 18C

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A potted history of racism

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

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

It is only 170 years old.

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

So.

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

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

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

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

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

According to De Vattel (The Law of Nations 1760)

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

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

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

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

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

Racism is an objective moral wrong

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

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

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

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

The politics of a racist polity

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

Savva said yes, and she is right.

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

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

For example:

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

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

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

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

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

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

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

The disproportionate impacts of racist ‘debate’

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

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

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

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

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

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

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

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

Conservatives really do fiddle as the world burns.

 

On the dangerous dishonesty of Rule of Law

With an outbreak of interest in and ignorance of two legal precepts, Rule of Law and the 1500-year-old lex iniusta non est lex an unjust law is no law at all, here is a bit of background on origins, authors, influences, and adherents.

The bones of the debate are this: the highest placed union leader in Australia, Sally McManus, was asked by Leigh Sales on 730 (ABC1) if she “believes” in the Rule of Law. McManus based her reply on the natural law philosophy that laws must have a moral dimension and a relationship to justice – and ought not cause injustices.

Over the years, philosophers have disagreed on the correct response to an unjust law, and have attempted to codify types of injustice. Do we leave the state which makes unjust laws for a more just society which does not? Do we obey the unjust law for the sake of some greater social good, such as stable government? Is an unjust law nullified by its unjustness, is it neither valid nor authoritative, because it does not meet an essential criterion for being a law? Are we justified in disobeying this unjust command which is not a law? Are we morally obliged to resist the command that is not a law?

Surely participating in and contributing to injustice is an objective moral wrong?

It will surprise nobody that these nuances were lost in the ensuing debate, which has (rightly) been overshadowed by the strategically brilliant and intelligently articulated reply from South Australian Premier Jay Weatherill to yet another poorly-conceived federal government thought bubble on energy supply.

But as I was writing a jurisprudence lecture on Aquinas and friends today anyway, I decided to post an explainer on the debate, and the origins of its false assumptions.

The incoherence of conservatism, then and now

Despite their fondness for identifying longevity with authority – the longer a principle has been around, and survived, and invoked through the ages, the greater legitimacy it carries – conservative thinkers reacted to McManus with predictable clickery and conformity.

Like most conservative incoherence, these people reject identity politics, yet judge a clear statement of principle not on what is said but who is saying it. So when McManus says that unjust laws can and should and will be challenged, your local conservative reporter frames her sentiment as imminent anarchy. This is despite the fact that McManus is drawing on an ancient (in European years) tradition found in the works of Augustine, Aquinas and Locke, works which provided the rationale for the American War of Independence, ideas which inspired Martin Luther King.

In contrast, when laws which do not suit the conservative agenda are challenged – such as the mining industry campaign against a perfectly sensible and just attempt to establish some kind of sovereign wealth mechanism – the ‘news’ is merely ‘reported’. As though vested advertising from the mining industry is impartial and reasonable, rather than an affront to principles of equality, democracy, and justice.

Following the 730 interview, prominent voices and high traffic sites – Buzzfeed, Fairfax, the ABC – immediately started peddling the angle that challenging unjust laws is some kind of unprecedented call to arms. In fact, it was the top union leader in the country sensibly discussing workplace safety and the human cost of employer negligence that sees human beings killed on construction sites. (And shout out to Crikey, who lined up left of Buzzfeed, and to Guardian journalist Paul Karp, who took on two Fairfax heavyweights.)

Workplace safety and union solidarity sit squarely within the remit of Sally McManus’ job description. A philosophy that rejects unjust laws also lies squarely within her expertise. Yet she does not enjoy the faux-neutral reportage – acceptance – that is enjoyed by the mining industry, for example, or the passing of profoundly anti-democratic laws by conservative governments. These laws are specifically designed to safeguard mining industry interests; and massively increase fines and maximum custodial sentences for protestors. Additional laws dramatically reduced the maximum penalties for toxic spills and other forms of destruction of country caused by big mining.

Conservative commentators could draw the most rudimentary and relevant comparisons between huge fines for striking unions and insultingly small penalties for employers who create conditions which kill workers. The edgy performative crew of political writers and editors could read a book, or google, before tweeting out ahistoric ignorance (and clumsily walking it back, complete with auto-correct error). But they do not.

Their hegemonic response relies on Hobbesian authoritarianism, which is coded into all Australian Constitutions. This tradition says the lead task of the political leadership is ‘peace, order and good government’. While the US chose Lockean revolutionism to throw off English colonial rule, Australia chose Hobbesean order. We are not the loveable anti-authoritarian larrikins we like to think. We still have a foreign national as our head of state.

Both Hobbes (1588-1679) and Locke (1632-1704) were deeply influenced by the English civil war from which the version of liberal democracy that is practiced here sprang. This model relies on the doctrine of separation of powers for power-sharing arrangements across the executive, the parliament, and the judiciary. Those fighting for a sovereign parliament – where sovereignty is the legitimate authority to make laws governing over a population in a defined territory – prevailed over the absolute monarchy that preceded it.

Theology and theory for population control by church and state

Social contract theory thus has its origins in a period of turmoil and bloodshed, of the English people rising up against tyranny. It was also an age of secularisation and the declining influence of the church as the lead source of moral authority. The theory proposes that citizens are born into a social contract with the state. The social contract replaced original sin as the prevailing belief system imposed on new born babies by members of the ruling classes, the academy, and the judiciary – none of whom ever gave birth to a baby.

If Rule of Law is closely associated with the social contract, original sin was a favourite fetish of Augustine of Hippo (354-430). The earliest coinage of lex iniusta non est lex is attributed to this famously sexually confused man of god, a man who rejected the pleas of Pelagians seeking refuge from the fall of Rome. The ‘reason’ was that Pelagius rejected the Augustinian cult of baptism.

It is beyond me (as it was Pelagius) how anyone could hold a new-born baby and think ah yes, so sinful, best get a self-hating turned-celibate man to half-drown the wee one before she can grow into a professed christian who refuses asylum to refugees fleeing imperial violence. Augustine thought it necessary to cleanse new-borns of the taint of the fall in the Garden of Eden. This kooky nonsense prevailed over the sensible and obvious truths of the innocence and blessings, the beauty and joy, of a living, breathing baby.

Aquinas (1225-1274) came along around 800 years later. He, too, made his name by theorising the norms imposed by a patriarchal and cruel church on the most precious and demanding (and life-threatening) imperative of humankind: birthing new humans. In a common technique, Aquinas looked to the works of Augustine, and re-interpreted that with which he did not agree.

He also christianised the philosophy of Aristotle, and retrospectively justified the rampant slaughter of Muslims that was the Crusades. For this immensely immoral rationalisation of the seemingly endless violence of the christian west, Aquinas was canonised by Pope John XXII in 1323. His jurisprudence continues to be taught today as a reformist and enlightened force for good (an altogether different take is taught in my classes). His Summa Theologica is quite literally part of the western canon.

Because the men who theorised our relationships with church and state were confused and deluded, the contemporary discourses which draw on their legacy also tend toward a confused babble of mostly conservative white blokes bickering over how best to govern (regulate/control) various sectors of the population.

There is nothing new under the sun, as my grandmother was fond of quoting from Ecclesiastes, a book which, fittingly, also gave us vanity of vanities, all is vanity! For the enthusiasm of some journalists to happily make themselves the story is not only an exercise in vanity, it is in breach of first principles of their own profession.

Rule of Law, in the news and in real life

Speaking of first principles, the Rule of Law is one. Do you believe in the Rule of Law? is a question by and for simpletons, which does not (or should not) fit any description of a host or guest on the national broadcaster. It is tacky gotcha journalism, it is joining the outrage machine, it is creating and participating in manufactured controversy. This is dismaying at best coming from 730 and the ABC. It shows bad faith, and displays zero intention for a nuanced and meaningful dialogue which will educate rather than divide an already divided populace.

The interview was immediately and, I suspect, unspontaneously disseminated across social media by journalist colleagues with significant followings. The posts gave every impression of their authors being on notice to make the 730 program the story. The technique is getting old: tried and tested at QandA, and to a lesser extent on The Drum, it seems 730 and Insiders have boarded the clickbait bus – which (I hope) is in decline.

Meanwhile, the robust defence of Rule of Law from conservative quarters came with deep ignorance of its content, origins, meaning, and status. If there is an upside to this embarrassing clamour, it is that people with a clue will be invited to speak clearly on the biggest lie of common law legal systems. The claim that all are equal before the law; and no-one is above the law is not true, and was never true. Maybe we will get to learn about this in the wake of McManus’ comments.

The noble idea of equality before the law – symbolised by a blindfolded Lady Justice – is what lawyers call the content of the Rule of Law. It travels alongside its blue blood cousin, which describes democracy as a government of laws and not of men. Both principles perpetuate mythologies of objectivity, neutrality, and impartiality to which conservatives earnestly subscribe. White law tends to look impartial to white people. But neither principle bears up under the most cursory, let alone critical, scrutiny.

Our jail populations reveal the truth of a violent and racist patriarchal state: a government of propertied white men, for propertied men, by propertied white men. Our jails are full of Aboriginal people, of poor people, of illiterate people and people with intellectual disabilities and mental illness, people who are survivors of child sexual assault.

You will not find Rule of Law in the Commonwealth of Australia Constitution Act 1900 (Imp), the authorising legal instrument for the creation of the federated nation. That is because Rule of Law is not a law. It is a foundational principle of the common law, and the common law is a product of the class-riddled imperial mind set of upper-class Englishmen.

These same people traversed the globe, slaughtering whole populations, claiming ownership of vast tracts of land, plundering the resources of territories which were sustainably managed for millennia. Backed by military force, they attacked the institutions and traditions of First Peoples, of Indigenous governance and learning, spirituality, and law-making – and then told them everyone is equal before the law.

All this was also backed by the soft power of theory and principle, of tropes and lies like Rule of Law, produced by the complacent and comfortable men of god and state and the academy.

Their descendants, and direct beneficiaries, are a dominant minority to this day. A demographic elite who overwhelmingly constitute the executive (highest decision-making power and authority) of every institution in our society: private and public, government and political parties, corporations and industry, universities and religions and the fourth estate. This lot are still out in force promulgating the lies and violence of yesteryear. Like their forefathers, they deploy positional privilege to belittle and oppress those who speak truth to, and challenge, and make visible, inherited and unmerited power.

This is not some social media storm in a teacup. Aboriginal people killed in custody and workers killed on construction sites are real people, in life and in death. And if there is one thing every culture treats seriously, it is the taking of the life of a fellow human being. But in our culture, not all humans are seen as fully human by the dominant group. It is members of this group who ensure that when it comes to the errors and horrors of their own, there is still nothing new under the sun.

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.