Category Archives: Logic law and politics

The Malcolm Election: A Primer

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

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

Who are the wealthy?

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

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

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

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

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

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

Who is the saintedAustraliantaxpayer™?

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

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

Disunity and Misleading Claims

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

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

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

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

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

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

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

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

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

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

Done.

Democratic process: on policy and law

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

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

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

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

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

Decoding election messages: the Malcolm campaign

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

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

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

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

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

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

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

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

Except incumbent power.

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

Government representatives of the people: a sample

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Six More Weeks: A Survival Guide

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

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

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

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

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

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

 

 

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


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

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

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

 

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

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

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

 

The current political landscape and ongoing colonial project

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

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

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

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

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

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

The events of the day were reliably exploited to:

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

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

 

The social landscape and dominant cultural hegemony

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

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

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

 

Island exile: nothing new here

Island exile as a social and legal control measure is not only central to white Australian history. It is said that St John was exiled to the Greek island of Patmos in the first century C.E.

From France we have a rich store of lore: Napoleon was famously banished to St Helena, and prisoners including the elusive Papillon (butterfly) to Devil’s Island. Stories of the brutal island prison Alcatraz live on in film; while freedom fighter Nelson Mandela was labelled a terrorist and spent 27 years on Robben Island (and highly accessible island prison lore from the Smithsonian here).

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

Placing particular people beyond the laws of the state is a key feature and purpose of island prisons. We are told this is to keep us safe. But the dominant purpose is to prosecute cruel and inhumane treatment of the banished. Cruel and inhumane treatment by the state, but out of sight of the people. Island prisons are not set up to keep us safe from the banished but from knowledge of the cruel and lawless actions authorised by the government we elected.

Even self-exile to the wilderness appears throughout the human story, and it is a universal human trait to makes sense of ourselves and our world through story. Involuntary exile is a harsh measure of social control, and to an island is harsher again. It is therefore imperative on the leadership of the society that has imposed such a measure to tell a credible story about why we have expelled some people from the land itself, to an island.

 

The past coexists with the present

There is no shortage of examples since 1770 of how island exile has been used to control, up to and including ending, the lives of those who are devalued and dehumanised by Australian society.  This 250-year old cultural hegemony appears unlikely to be dislodged any time soon.

Many of us are familiar with the ‘loaf of bread’ narrative. The invading forces came from a culture which placed greater value on the property rights a baker held in a loaf of bread than on sharing food with the hungry. Steal a loaf of bread, and you’re bound for Kamay (Botany Bay). This denies the poor and the hungry their basic human rights to food, sense of family, belonging and connection to country (as miserable and dirty a country was C18 England, it was still their home, where their family and friends resided).

The ‘remote island’ where we still perpetuate terra nullius thinking like ‘middle of nowhere’ and ‘alien landscape’ was not remote or alien or nowhere to the locals. The ‘hostile country’ was not hostile to its First Peoples. On this incredible archipelago, mother earth to more than 200 distinct Peoples, generations of Aboriginal peoples sustained their law and societies and cultures for upwards of 50,000 years.

These uncontested facts alone prove that the land is abundant and the people live in close harmony with it. But first the English, then the colonials, and now the dominant hegemony are invested in a ‘great man’ approach. This methodology elevates individuals, perpetuating liberal mythology. Shining a spotlight on just a few ‘great men’ illuminates much about the island gulag model that Australia perpetuates today.

For example, Cook came here with the bloated botanist Banks, for whom the Dharawhal place Kamay was renamed Botany Bay. The English filled their barrels with clean fresh water on Palawa shores – without which they could neither sail nor live. It is a matter of historical fact that the English foul their own rivers and streams to the point of undrinkability, and those of others territories, wherever they go.

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

Palawa culture and peoples endure. The claim that there are no more Aboriginal Tasmanians is a lie. Meanwhile, Cape Barren Island was conceptualised by the English as a place for Palawa descendants to die. Think about that. The English claimed to have ‘discovered’ a place where their own ‘great men’ would have perished of thirst without the sustenance of its streams. They declared ‘extinct’ a people whose epic voyages predated the English by 50-70 millennia; peoples who survived the ice age that saw the island formed. The Palawa were there when the island became an island, the invaders framed their attempted genocide as some kind of natural Darwinian phenomenon.

Back on the mainland, in 1788 Phillip set up camp at Warrane (Sydney Cove). He established a punishment site at Mat-te-wan-ye (Fort Jackson/Pinchgut, more rocky outcrop than island but either way surrounded by a large body of water). He sent a boat north to set up a secondary punishment island at Norfolk, an essential part of the colonial project.

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

Like the first, ‘Second fleet’ reflects the absurdity and arrogance of English naming practices. Australia is an island, populated for 60,000 years. The English claim the first ever fleet of boats to arrive here was in 1788. That we accept this as fact is too absurd for words. There was no other way to get here.

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

Then there are islands where different clans of sovereign peoples were forced together by the colonisers. Like Palm Island off the Queensland coast, a place of great tragedy in a tropical paradise; Rottnest off teh Western Australian coast; and Cape Barren (I wonder what Cape Barren is like?). Aboriginal people were forcibly transported, out of sight, out of mind, as were the convicts before them and asylum seekers today. It didn’t work, and it will never work. It is a terrible mindset, a terrible thing to do, and we proclaim ourselves to be civilised.

Why coerce and isolate people on small islands off the Australian mainland? First peoples, colonial recidivists, refugees?

The answer is fear. Fear of the unknown, because it is not our land to know, fear of our own illegitimacy, fear that we do not really belong here. Fear that somehow in the great karma of things, someone somewhere might do what we did, and take the island by force, and dispossess us of this paradise.

That the contemporary Australian state banishes refugees to remote island prisons is not innovative, it is not civilised, it is predictable and backwards. The origin of these traditions and fears is a remote and windswept island off a (northern hemisphere) continent which experienced wave after wave of violent invasion. It does not originate here, and it does not belong here. On this continent and her islands, an different law, and a different set of cultual values, developed over a much longer period.

 

Two preventable deaths, one colonial mindset

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

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

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

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

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

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

Then came news that the 23 year old man Omid who set himself on fire had died. I cried for Omid too. My oldest son is 23 years old. I raised him myself. We live in a place that demonises some while elevating the health and well-being of others. This includes valuing some children over others. Some babies. Did anyone else find the sight of the Turnbull grandson running around Yarralumla fawned on by all, while refugee babies are locked behind barbed wire, monumentally disgusting?

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

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

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

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

RONNA: Mommy Problem?

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

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

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

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

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

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

VEEP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mommy problem

 

 

 

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

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

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

 

Ceduna residents rallying against cashless Welfare:

image

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here’s a quick tip about words:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

image

`

 

 

 

On Democratic Principle, the Fourth Estate, and visiting Nauru

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

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

Realpolitik is not cynicism.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Legislation is policy. Law is politics.

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

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

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

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

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

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

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

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

Here is how a law gets born.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On citizenship and election to high office

In the USA, being born in the USA is a constitutional requirement for standing for the Presidency. Anyone born outside the USA is not eligible to stand. There was once some talk of changing this so that Arnold Schwartzenegger aka the former governator of California, would become eligible to run for president. A sex scandal broke, he disappeared from public life, and so did the debate.

This is a constitutional matter. A legal fact. The political and cultural requirements are different, numerous and complex. For instance, there is no requirement in the constitution that a presidential candidate also be a Christian. But the current political reality is that candidates are compelled to state their adherence to the Christian religion, and end their speeches with ‘God Bless America’. This is so despite the fact that the framers of the American Constitution were determined secularists. Freedom of religion and freedom from religion is the secular liberal tradition. The private letters of US Constitution framer Thomas Jefferson clearly show his secular outlook and contain the phrase ‘separation of church and state’ to explain the First Amendment, which opens with this line:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Atheists are usually required to demonstrate our knowledge of your religion in order to refute it. In this tradition, Jefferson supported his argument by quoting the gospel of Mark (12:17):

“Then Jesus said to them, “Give back to Caesar what is Caesar’s and to God what is God’s.” And they were amazed at him.”

Because Barak Hussein Obama is a black Democrat with a funny sounding Muslim-ish name, a group of right wing conspiracists made up a story: that Obama was not born in the USA. This is simply a lie. It gained traction in all the usual ways: via the lie-spreading machine that is Fox “news”, funded by millionaire Donald Trump, who donates generously to the Republican Party and increases his already obscene wealth under the demonstrably terrible “economic policy” measures favoured by the extreme right wing. The whole shrieking mess can be translated into a simple invalid argument: Obama is black, therefore he is not eligible for the presidency.

The situation in Australia is different. Not for the first time, we have a foreign-born Prime Minister. This is neither a legal nor political problem. The constitution does not even mention the prime minister, let alone direct that the person holding that office be born in Australia.

The Australian constitution does, however, require all elected members of the Commonwealth Parliament to only hold Australian citizenship. That is, if you want to take up an elected position in the highest governing authority in our democracy, it is unconstitutional to do so if you also hold allegiance to a foreign power in the form of citizenship of another nation. You must be neither a non-citizen nor a dual citizen. You must be an Australian citizen and an Australian citizen only. This is in section 44, which sets out the conditions and requirements of election to the Commonwealth Parliament.

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia. It states in particular:
44. Any person who –
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Here’s the thinking behind the provision on foreign powers. While the states run day to day internal matters such as health, education and policing, the Commonwealth must deal with external affairs on behalf of all Australians. So if a member of the Commonwealth Parliament holds dual citizenship, they immediately risk a conflict of interest where the Australian government is negotiating with, or going to war against, a foreign power. This is an unacceptable level of risk, because national security.

So to stand for public office as a dual citizen is in breach of our founding legal document, the law that authorises all other Australian laws. Again, this is not necessarily a problem. If the constitutional breach is seen as inadvertent, a mere oversight, we extend the principle of charity. This is the same rule that gives the batsman the benefit of the doubt. People make mistakes all the time. Where there are humans, there is human error. In the first instance, we give them the benefit of the doubt. They said it was an oversight, and it probably was. It’s a small problem with a simple solution.

Renounce the other citizenship, become an Australian-only citizen, if necessary hold a bye-election. If you win the bye-election after renouncing the non-Australian citizenship, the citizenship of a foreign power, both the legal and political problems are resolved. That’s it.

It is a different case altogether to stand for public office not once, but twice or more, while not being eligible to stand. The principle of charity no longer applies. You can no longer enjoy the benefit of the doubt. You’ve got form. It is certainly a substantially different matter if the person who did this is the Prime Minister, a person who holds qualifications from an elite university, a highly paid member of parliament who knows or ought to know that what they are doing is in breach of the constitution. Someone in this position is attributed with constructive knowledge, that is, if you say you didn’t know, the law says you ought to have known, in this case on the basis of the responsibilities and remuneration of your office, and the foundational principles of the Westminster system, such as ministerial accountability.

There is no crazy conspiracy ‘birther’ movement in Australia. There is a group of people on social (and now some traditional) media asking whether the Prime Minister has stood for public office while ineligible to stand, and if so, how many times. Comparisons with the birthers should be dismissed out of hand as weak analogy. That is, there are too few similarities, and those similarities are very broad (both arguments are founded in political oppositionism and use the constitution to make their case). There are too many highly relevant differences, and the differences are very specific. These are long-standing logical principles for identifying a weak analogy. It is an illogical comparison. The birthers seek to discredit the president and their campaign is racist as well as political. In Australia, we are asking whether the Prime Minister’s tendency to lie goes all the way to his election to public office itself.

The question is easily answered. The Prime Minister’s Office tells us he has renounced his British citizenship. It refuses to say when. The fudging and blocking and delaying from both conservative governments, in Australia and Britain, suggests the date will be politically harmful to the Prime Minister. My guess is that the date he renounced British citizenship is relatively recent, and will show that he wilfully, not inadvertently, stood for public office more than once, while being ineligible to do so.