Category Archives: Uncategorized

Tax sugar, they say, but no price on carbon emissions

The story this week is climate change. Not that we can forget the catholic church is responsible for crimes against humanity; or our collective responsibility for destroying lives on Manus Island and Nauru; or the dangers of our government and its new best friends One Nation building up racism and other forms of bigotry, off a very high base.

Conservative (adj): averse to change or innovation

But the real story this week, and every week of every summer from now on, is climate change. Our political leadership is not up to the job. Conservative governments are not, by definition, equipped to deal with new challenges, being composed of people who chose to join a conservative political party. They do not like to concede this obvious point, because they are also people who seek the power to control others (to govern); and who yearn to appear masterly and successful.

Hedged in by these inherent incompetencies and ambitions of their own making, the options for dealing with the ‘new’ challenge of irrefutably irreversible man-made climate change are limited. Turnbull or Joyce, Pyne or Frydenberg, Ciobo or Morrison, they are all the same. They represent, and only represent, a monoculture of material comfort, of limited life experiences, and the narrowest of narrow perspectives.

Their choices are to lie and dissemble, to distract and deceive, to derail and delay and deny. Oh, and to bully. In a homophobic way. Simpering sycophant. Sucking up to Dick. Tucking his knees under the rich man’s table. Sucking hard in the living rooms of Melbourne.

‘Sucking hard’ on what?

These are the tools in which the current front bench is trained. Like the blinkered horse, they stare straight ahead, at the Labor Opposition, and to their own re-election chances. This is all they see. The horse is blinkered to minimise distraction, but we can not blinker our politicians in real life. So in addition to their narrow, limited outlook, we get distraction after distraction.

We get a piece of lacquered coal passed around the government benches in the Parliament. We get the Prime Minister shouting sympathy for those who can not turn on the aircon due to a blackout. It does not occur to him some of us do not have aircon at all, blackout or no. Does not cross his mind. Limited. Blinkered.

Turnbull says the problem is renewables, and Labor. To the latter end, we see Peta Credlin – former Chief of Staff to former Prime Minister Abbott and former COS to former Opposition Leader Malcolm Turnbull – telling Sky News that the 2013 Coalition campaign against a price on carbon was never anything but a giant scare campaign built on a mountain of lies and yes of course they would and will do it again anytime anywhere. This is moral bankruptcy of the first order. The implications for Abbot’s Stop the Boats campaign are unspeakable.

Such is the integrity of the conservative parties in Australia. And because conservatives weaponise everything, this garbage rhetoric is all wrapped up in the language of security. Border security. Energy security. But there is no security for anyone – not for you, not for me, not for our grandchildren, not for the planet – while the only solution on offer is to use public resources to subsidise more coal – while the earth burns.

Turnbull makes Nero look statesmanlike.

Politics and Policy 1: Politics

Speaking of conservatism and distraction and lies, it is barely more than a week since the ABC ran saturation coverage of What Cory Did Next. There is no excuse for multiple replays of Bernardi’s querulous slow-mo mumble, whining that climate debate took a terrible toll, poor fellow, not just on him but on his family. Ah, yes, how Bernardi and family must have suffered as papa B went about the toll-taking toil of scuppering any and all efforts to implement global warming mitigation policy.

Fellow homophobe and religious extremist George Christensen is also attracting all sorts of attention. His opposition to a proposed sugar tax would be straightforward retail politics – lots of sugar cane plantations in the Christensen electorate – except that Christenesen sits in the Lower House. The Turnbull government lost 14 seats last July, leaving it a single seat majority. (This, incidentally, is why the party room will not scupper Turnbull – in case he throws a sulk and leaves).

In the USA, institutional checks and balances are proving woefully inadequate at putting any meaningful restraint on the excessive bigotry, dishonesty and bullying, the moral bankruptcy and dangerous incompetency that are the decades-long hallmarks of the man who is now President.

There are similarities here – the greed of crony capitalism, the erosion of assumed base line principles – which will excite some sections of the commentariat. But this doesn’t mean much. These are people who get excited by the national leader engaging in homophobic bullying on the floor of the Australian Parliament.

Neither a rat in the Liberal ranks of the Senate nor a shift from a one-seat majority to minority government will make much difference here. The conservatives will keep blocking anything remotely resembling sensible climate policy. Legislation will keep failing in the Senate until Turnbull throws enough public moneys at the cross-bench – in that irresponsible, chaotic, megalomaniac way of his – to get what he wants.

In other words, it is business as usual. Turnbull never articulated a policy agenda anyway: he rationalised toppling Abbott by citing opinion polls. He never had command of his party room – few of them even like him. He has no record of sound leadership or judgement (see Australian Republican Movement, emissions trading circa 2009, non-existent marriage equality) or successful negotiation. The ABCC bill he used to trigger a double dissolution was negotiated out of all recognition AFTER Turnbull squandered tens of millions of public dollars recalling the parliament and running an eight-week election campaign. He could have just as easily done that BEFORE wasting so much public money (and quite a bit of his own).

If George moves to the cross benches, yes the government will be nominally a minority government. Perhaps George will not guarantee Supply, but that seems unlikely. The government is still trying to pass measures from the 2014 Hockey budget, and government has not shut down. If George goes, the constitutional lawyers will be rolled out for comment, interviewers will nod earnestly, but so what? The nation got a crash course in the mechanics of minority government – from a master of the art, the most effective Prime Minister in the history of federation – four years ago.

And Turnbull will keep bullying Labor to back his agenda, which is largely payback for Rudd convincing Turnbull to back his ETS (and subsequently losing the opposition leadership to Abbott). In Turnbull world, his 2009 compromise was not his error to own, but something to be blamed on others, specifically Labor. Whatever. It will not work. Like Rudd was, Turnbull is a factional outsider, which Shorten is not.

So the Senate cross-bench rabble is slightly more rabblish with Bernardi, but ultimately he remains a crashing irrelevancy. In contrast, climate policy and the failure of the political press to ignore the distractions and to instead analyse the pressing issues of our time, are relevant to everyone, including those yet to be born.

Politics and Policy 2: Policy

While it is not all about the politics, or should not be, Coalition climate policy is about nothing but politics and an ideology founded on the false claim that self-interest is rational. Understanding policy direction requires an understanding of ideology, because policy is the codification of ideology.

This is in fact how democratic government works. A party founded on a set of ideas (an ideology) runs an election campaign based on its policy platform. If it wins, those policies are drafted into bills and passed into law (my more detailed explainer here).

To think the law is impartial, or that laws are free of partisanship or ideology, is to ignore this most basic of civics lessons. If the citizenry are without critical skills and civics knowledge, that is the responsibility of education governance. But there is no excuse for self-identified expert commentators to overlook these fundamentals of liberal democracy.

The Coalition policy, Direct Action, is a dog’s breakfast of a thing. It transfers public resources – tax collected from the public and redirected via fiscal policy – to high pollution-causing profit-seeking private sector enterprises. How could such a policy be perceived as rational by anyone?

The answer is ideology: because ‘rational self-interest’ is the central tenet of free market liberalism. For everyone who profits from the mining industry, and for everyone who benefits from mining industry donations, giving public resources to the mining industry is in their self-interest. Ergo it is rational.

This sounds daft, because it is daft. Nevertheless, it is a dominant organising principle of free market capitalism, and operates in tandem with the hyper-individualist ideology of liberalism. This is political economy as it was once understood, before conservative promotion of wilful ignorance disaggregated the two.

Even now, commentators speculate in faux wonderment as to how Hansonism is on the rise again. Is anyone analysing why Hansonism does not rise when Labor is in power? No. Self-interest directs the conservative mindset to treat her unoriginal brand of bigoted opportunism as random happenstance, even as the Coalition parties enthusiastically fan the flames of – and normalise – religious and racial bigotry at every turn.

This is partly a function of the make-up of the Coalition parties. The constituent parts include old-school authoritarian conservatives, nominal liberals who can not apply the most basic tenets of their ideology to policy or governance, and former agrarian socialists turned client spruikers for the mining industry. Each member of each group operates in a moral vacuum filled by greed, aggression, and bigotry.

All this is underpinned by selfishness (‘self-interest’) being encoded into their ideological values as ‘rational’. Similarly, to not pursue one’s own individual self-interest is judged to be irrational. The link was conceived three hundred years ago by propertied white men who excluded everyone else from the franchise. The same group then universalised their values through dominance of public discourse; and continue to do so today, through the mechanisms of dominating legacy.

Human beings are a social species, but patriarchal societies reward aggressive individualism. This is called ‘competition’. In a sensible world, competition is for games, for tennis or chess, for entertainment and recreation. It is not the key to human survival. The keys to human survival are co-operation, reciprocity, mutuality, and love.

We may be all born equal in dignity and rights, but who gets to exercise those rights, or who gets to live a life free of governments deliberately violating those rights, is very selective indeed. And the selection criteria are bigoted nonsense: race and ethnicity, gender and sexuality, religion and dis/ability, wealth and class and the access to education and health services that capitalism ensures is correlated with income.

In sum, rational self-interest is a terrible organising principle. It informs the decisions and actions that have brought about irreversible man-made climate change. And it can be found everywhere across the liberal democracies, in every institution: government, media, universities, corporations, religion, everywhere. These institutions are rigidly hierarchical. The executive is invariably monocultural and rationalises self-serving decisions which cause purposeful, demonstrable harm to those outside their elite and exclusive group. This toxic norm infects all decisions and actions, from the top down.

High-taxing, high-spending, big government

One of the most profound analyses Paul Keating offers of the Coalition is that its claim to a commitment to markets is in fact a commitment to business. This illuminates the Coalition rejection of a market mechanism-based price on carbon (which successfully reduced carbon emissions), for a policy which transfers public resources to high polluting industries (which does not).

Similarly, conservative political leaders routinely express a commitment to small government. If the rejection of a market price on carbon in favour of subsidising polluters is high- spending big government, the proposed sugar tax is high-taxing big government. It is a distraction, of course, but a harmful one, because the arguments ‘for’ attack the poor.

A distraction with collateral damage to low-income Australians is par for the neoliberal course.

The sugar tax was borrowed from David Cameron, the failed British Tory Prime Minister who stood down after losing an expensive xenophobic campaign which was designed to settle conservative scores but which instead now poses an existential threat to the United Kingdom. The sugar tax proposal has the same flaws as the Coalition climate policy; because it comes from the same ideological place.

Paternalistic do-gooders are trotting out the usual lies of liberalism in support of a sugar tax: that a market mechanism (making sugar more expensive to dampen demand) is the correct policy approach to rising rates of obesity and diabetes.

The fastest rising diagnoses in the western world are anxiety, depression, diabetes and obesity. What does this say about the toxicity of our societies? Or about the cognitive dissonance of being fed, year after dreary year, the message that we are free, and autonomous, and have liberties and rights, when government interference in what you put in your shopping trolley is based on your income.

A sugar tax, goes the paternalism, will be good for the poor. It is only fair. The poor are irresponsible with the below-poverty-line income we so generously provide. In fact, poor people are the least profligate with public moneys – they have to be, or they die. In contrast, politicians throw the stuff around with merry abandon, a hundred million on entitlements here, $2.2 unauthorised billion there, squillions to private sector contractors over decades to the failed Job Network, ABS outsourcing, off-shore camps run by the incestuous web of Wilson Security, G4S, Serco, Transfield.

What is the return on our investment in shipping Joyce and Bishop around, in paying those profiteers in human misery to employ rapists on Nauru, in spending tens of millions on automated extortion of welfare recipients? How is the national interest served?

The answer is that the national interest is not served. This is not investment. It is toxic dilettance. The claims of liberalism, so tediously reproduced – selfishness is rational, reward is commensurate with merit, public accountability is the norm, lack of accountability is an exception –  are demonstrably false. Yet instead of a ‘small government’ that listens to the people in a nominal democracy, we get ever-increasing government surveillance and erosion of democratic rights: an inept and expensive data retention regime, criminalisation of democratic participation by protest, higher taxes, higher spending (evidenced by a deficit doubled since 2013), big brother big government.

And still, and still. What about the climate?

MYEFO mutterings: casual workers have heard it all before

This week I had the very familiar experience of listening to a neoliberal ideologue treat his audience as economic dunces.

It is symptomatic of neoliberalism that its public faces are well-remunerated to take economic claims at face value. Their task is to reproduce these messages to an audience of staff or readers or students or voters. The audience members are in turn expected to meekly be co-opted into the neoliberal project, just like the boss.

The boss prosecutes the case for increasingly precarious employment (for others, not for himself), for abolition of penalty rates. He may or may not understand that his claims rest entirely on ideological grounds, rather than actual economic efficiency measures.

The exorbitant cost of executive salaries – staff cars and subsidised fuel, business class travel, sabbaticals, superannuation – are invisible in these speeches. Yet the cost of paying casuals by the hour for work completed is framed as an expense to be economised. Meanwhile, high staff morale, reduced inequality, and the creativity and innovation that comes with a diverse workforce and social cohesion, lead to higher productivity. This is in contradistinction to neoliberal messages delivered by the boss to causal staff.

The causal work force

Neoliberal messaging is founded in a specific value system; and based on criteria developed by people who are very expensive to retain. For instance, an unspoken assumption is that paying an executive to travel to a conference is of value to the organisation; while penalty rates are a cost. No evidence is demanded for this kind of calculation.

It is not impact-neutral for the causalised worker to listen to this at our Christmas drinks event. The executive may benefit from delivering the message, but the worker does not. To be treated as expendable, to see our pay packets shrink, to be told our rates are unaffordable by people on hefty 6-figure salaries: such experiences are dissonant, and unpleasant, and take a long-term toll.

The causal worker can not ask whether another overseas trip for the boss is really better value for money than properly remunerating those who do the frontline work. The casual worker can not point to the efficiencies, the productivity gains, the savings in staff turnover that would stem from income security and basic conditions for the frontline workforce. It is much easier for senior management to denigrate young people as flighty or fickle than to recognise the unproductive privilege to which executives are accustomed.

And because it is easier, which is the opposite of hard work, that is what the executive does. This dynamic can be seen across the private sector; and its equivalent in public life.

The public sphere

People like Treasurer Scott Morrison and Finance Minister Matthias Cormann – and Barnaby Joyce and Joe Hockey and Tony Abbott – give every impression of being economically illiterate. They are a huge cost on the public purse. Yet these men have no hesitation in telling, say, welfare recipients how to live on a tiny budget in deeply unnecessary poverty.

A neoliberal government will characterise welfare recipients as a social problem lacking money management skills. In reality, people who rely on welfare to feed and clothe themselves and others – sole parents, carers, unemployed people, aged pensioners – are very adept economic managers. There is nothing unskilled, or lazy, or immoral, about maintaining a household on a pittance while the government of the day continuously attacks your very existence.

That government of the day, by contrast, is comprised of highly remunerated members who enjoy every social and financial structural advantage of a wealthy western nation. Many have been paid from Treasury coffers their entire lives. I have no personal knowledge of how ex-police officer and current Minister for Immigration and Border Protection Peter Dutton has amassed a $20 million property portfolio. But we can be sure Mr Dutton would claim this wealth is a product of hard work, or savvy investment or risk management.

Whatever risks Dutton has taken on behalf of himself and his family, it is only with money, and only while his base salary is paid – and thus the risk underwritten – by the state. The risks taken by Dutton on behalf of asylum-seekers, by contrast, are life-and-death matters: his decisions have directly resulted in mass human anguish, provided access for rapists to rape women and children, have triggered self-immolation, overseen forced child birth. We have paid upwards of $10 billion to see these lives destroyed on our watch.

Misallocation of resources

Organisations which propagate falsehoods such as an individual’s financial reward is commensurate with their hard work are really terrible economic managers, because the propagation of such messages requires resources. Every resource – time, money, labour, raw materials – allocated to the lies of liberalism could be spent on some other project, with some other return on investment.

It is a simple concept. Economists call it opportunity cost. Every dollar spent on one consumer choice is not available for every other possible spending decision.

The return on investment might be concentrated in the hands of the few, or it might produce long-term social good. Or harm. The $10 billion spent on Wilson Security and other interests to destroy the lives of asylum seekers has the return of electoral victory for a Coalition government.

Free market principle says that if people can amass vast private wealth through innovation and hard work – JK Rowling, say, or Bill Gates – they can do this without being subsidised or underwritten by the state. Similarly, public investment is for the long-term social good, or at least it is under principles of social democracy.

In contrast, principles of neoliberalism… just kidding. Neoliberalism has no principles, unless it is power (and wealth) for power’s sake.

The NBN is an example of the difference between social democratic principles and neoliberalism. The NBN is a national infrastructure project, conceived with a strong social justice component. High speed affordable internet for all would see delivery of knowledge and expertise to rural and remote areas, producing direct dividends in health and education; and indirect dividends in equality and social cohesion.

The NBN has since been transmogrified into a hotch-potch of inferior technology, private interests, and badly-managed compromises. It is costing more, for less social good – and more returns on investment concentrated in private interests (such as highly paid executives). Malcolm Turnbull has overseen this reallocation of resources from social good to private interests. While many insist he is innovative, is tech-savvy, those commentators ignore the fact that a man who amassed huge wealth from business decisions (and joined the Liberal party) is unlikely to be committed to, let alone skilled at, public-sector economic management.

Despite the dividends to rural, regional and remote areas, Turnbull’s deputy Barnaby Joyce is no more committed to the public good. Joyce was famously demoted by Tony Abbott for conflating household budgets with national fiscal policy. But while Barnaby was expendable on the point back in 2010, the current Treasurer has a tendency to do the same thing.

On top of his salary, Joyce claimed over $1 million in entitlements for the first half of 2015. Politicians together claimed $48 million for the same period. While welfare recipients must report any income within a fortnight, or suffer severe exacerbation of their existing poverty in the form of payment suspension and cancellation, the delay in expenditure reporting means we do not know yet the cost of politicians for 2016.

This year the costs will include most of that horrendously long election campaign. The one where Malcolm Turnbull gave himself 8 weeks, most of it on our coin, to secure the approval of the electorate to stare down his conservative back bench but instead lost 14 seats. It is unlikely the 2016 politician expenditure bill will come in under $100 million.

Again, that is on top of their $200-500Kpa salaries. Those 226 federal government MPs do not come cheap. But like the senior executive railing against the causal workforce payroll bill, this cost is all-but-invisibilised while a man with the morals and judgement of Scott Morrison is sent out demonise the unemployed, the carers, the sick and the aged.

It really is the most disgusting spectacle.

If the Coalition in government has grossly mismanaged the economy and can not maintain a triple-A credit rating, it should set out the causes, and the solutions. That is what agile innovative thinkers would do.

Warning: MYEFO ahead

Instead, Scott Morrison will come out tomorrow and tell lies about the state of the Australian economy. He will pretend all is almost well or sort of okay but what is wrong has nothing to do with him, the Treasurer, and his complete lack of any credentials for the job. He will resort to mumbo-jumbo on seasonal adjustment and commodities prices. He will claim there are international factors. He will say economic head winds are inevitable. He will put on his serious voice to say these are serious matters. Over which, alas! he has no control.

Morrison might mention globalisation as though it occurred recently – which it did, in conservative years. Conservative years are like dog years (with apologies to dogs) – one human year to seven conservative years. When you hear a mainstream commentator blathering about the problem of social media as space where people can comment? When facebook has been mainstream since at least 2009 and it is 2016? He is conservative.

Anyway. Morrison will lie about the dismal results of four years of Liberal economic management and wash his hands of his own gross ineptitude before turning to his favourite pastime: blaming Labor and demonising welfare recipients.

Australia avoided recession during the GFC under Labor, but looks unlikely to do so under the current Coalition government. Australia retained a triple-A credit rating under Labor, but seems less likely than ever to do so under the Coalition. No matter how nonsensical or the overwhelming evidence, Morrison will spend the time and expertise made available to him on the MYEFO to blame his political opponents and hate on the poor.

This is what economists call misallocation of resources. Morrison could be seeking and implementing solutions but instead, with the backing of the Coalition leadership, will decide that Labor-blaming and poor-hating is a viable option. There is no positive return on this to anyone but – surprise – the Coalition leadership team. Our polity is diminished by it. Welfare recipients are further disempowered.

Time and expertise, ever more so in the digital age, are subject to the same economic realities as any other resource. These public goods – Treasury officials, infrastructure investment, air time on the national broadcaster – continue to be misallocated by our government. To an economist, misallocation of resources is evidence of poor economic management.

The problem with White Ribbon Day: Everything

White Ribbon Day causes harm to women who have survived men’s violence.

Seeing a man like Mike Baird wearing a white ribbon, a man who ripped apart women-run services, re-traumatises women who have survived domestic violence. This is a man who, with great fanfare, announced the appointment of a Minister for the Prevention of Violence Against Women, while homicides by men against their intimate partners – that is, women who they lived with or who were trying to leave – increased by 40 per cent.

So the Baird strategy is an abject failure, with which women have paid with their lives.

Baird treats our safety from men who bash and kill women as an asset-stripping exercise. Baird and Abbott and Turnbull take women’s services, strip us of everything that has been built up over 40 years, and defund us on hyper-ideological pretences.

As a religious man, Baird then hands what is left – the social services equivalent of a shell company – to client donors, to organised religion, to Mission Australia and the Salvation Army and St Vincent de Paul aka the Catholic Church.

These are organisations which, on the evidence, should never be given responsibility over the lives of women and children. These organisations take children from mothers who have been traumatised by men; these organisations have, for centuries, been staffed by men who rape and otherwise mistreat children. And women.

In my household, where I alone have been responsible for feeding and clothing and educating and keeping safe three children, White Ribbon Day is a day to take a deep breath and remember that my society, and my government, sees us as an opportunity for a fancy breakfast and a lapel pin.

I remember back then, fourteen years ago now, wondering what it would be like to get through an entire day without thinking about safety first, without obsessing over where we had been, about what we had escaped. I remember wondering if I would ever live a day without the flashbacks every hour, the horrors every night.

But time really does heal all wounds. Through soccer seasons and camping trips and social media connections and being our fabulous selves, we have become people who are not defined by a man’s violence. Time and love and family and friends and music and having a job and education and sport and safety – all of these together healed the wounds.

Above all, safety.

Every time I unlock the front screen door, fourteen years later, there is still that tiny moment. I take a breath, and remember past fears, and give thanks for being able to walk into my front yard without checking for potential danger. It is a muscle memory thing, a bodily reminder. Moving into a house with a lockable screen door and a gate was a revelation. A gate! I could not believe how safe I felt. I had never felt so safe.

We are still safe. Due to eternal vigilance. Due to my strength and resilience, and that of my children, and to family and friends who supported us through hell and high water – where hell and high water is a euphemism for the violence and the threat of violence perpetrated by an adult man who said he “loves” us.

In those years, I completed a law degree. I enrolled in post-graduate study. I had the benefit of a comprehensive social safety net that allowed me to parent and to work. I bought the house with the gate. I have seen one child into the adult world, with two more on their way. I do this with enormous privilege, with tertiary-educated whiteness, with family support, with friends who praise and do not judge, with the universal education and universal healthcare – and income support when needed – that are the cornerstones OR SHOULD BE THE CORNERSTONES of our society.

And every year, I shed furious tears and shake with anger and pain when White Ribbon Day comes around. At this organisation made up of members who know nothing, absolutely nothing, about men’s violence against women and children. This organisation which causes trauma, by minimising and trivialising the cause, the source, the problem. This organisation which paralyses my otherwise normalised existence, which reminds me again, as though I needed reminding, how little our society cares about people like us.

White Ribbon compels women to mobilise, to donate free research, to volunteer valuable time, to combat the myths and victim-blaming which it unreflectively reproduces. White Ribbon is white patriarchy, it is men dominating the message, it is damaging and harmful to women and children. Like the organisations to which women’s services have been handed, the corporate interests and organised religion (same thing), White Ribbon does enormous harm and precious little good.

Dear White Ribbon. Please get out of the public sphere. Shut yourself down. Forever.

First principles of property law: the right to exclude

If you have not seen the footage of Murandoo Yanner banishing Pauline Hanson from the Cairns Indigenous Arts Fair, it is well worth the 26 seconds.

The weekend this clip was posted, I was preparing my first ever property law seminar, Basic Concepts in Property Law. Serendipitously, the High Court case of Yanner v Eaton [1999] HCA 53 was on the reading list.

Yanner is a winner

Mr Murandoo Yanner, a Gunnamulla man ‘of the Gangalidda tribe’, appealed against a fine issued by Mr Eaton of the Queensland Police Force. He won in the Magistrates Court,, however Eaton won an appeal to the Queensland Supreme Court. Yanner then appealed to the High Court. Mr Eaton was joined by four Attorneys-General. The appeal was allowed, which is the mild-mannered way the High Court has of saying that Yanner won his case.

The decision amounted to recognition by the common law of Yanner’s rights under the Native Title Act 1993 (Cth). There was also a message for those four Attorneys General:

  1. Order that each of the Attorney-General of the Commonwealth, the Attorney-General of the State of Western Australia, the Attorney-General of the State of South Australia and the Attorney-General of the Northern Territory pay to the appellant the additional costs incurred by him by reason of the intervention of that Attorney-General, such additional costs to be taxed.

This is one of those slap-downs that nobody ever says is a punishment because the law gets to define things. Costs orders send a strong message to the parties, and costs orders against four Attorneys General are as strong a message as any from the High Court. But we are not allowed to say the order is a punishment or remedy, because punishments and remedies (fines, jail terms, damages awards, injunctions) are issued under a different curial function to costs orders. This itself is determined by the High Court, by which all other courts are bound.

In lay terms, four wrists were slapped. A fifth wrist was too, when the entire seven-judge High Court bench doubled down and ordered Eaton to pay Yanner’s costs in the Queensland Supreme Court too.

The message from Mr Yanner, in exercising the right to exclude Pauline Hanson from the Cairns Indigenous Arts Fair on moral grounds, was as unambiguous as those costs orders.

The recording cuts in as Yanner is saying ‘Aboriginal people’ and he continues ‘and now you’re kicking the Muslims around. Go, go’ he says, waving Hanson and her entourage away. ‘You’re just a racist,’ Yanner tells her. ‘Disgraceful. You are a woman lacking moral fibre. You are intellectually dishonest, and you’re not welcome here.’

Hanson turns around and leaves. As she does, cheers and applause can be heard from people off-camera.

The direction to leave the premises, the reasons given, and the cheers and applause, all contain important lessons in basic concepts of property law. Especially when the clip stars the man whose spectacular 1999 High Court  win is also prescribed reading. And especially when there are considerable numbers of young Muslim Australians enrolled at my university.

But would it be proper to show in week one? I messaged a mate doing his PhD at Melbourne Uni, a Ngunawal man whose judgement I trust absolutely, and who has also taught undergraduate law classes. Should I show the Yanner clip? I asked. What will it add to the lesson? he replied. Right to exclude, moral grounds for exercising right to exclude, community consent and consensus, I said. Go for it!! was his wise reply.

And yes, it was Ahmed who came up after class, grinning broadly, and asked is that the Yanner from the case the High Court case? Is that the same man??? It felt so good to smile back and say yep, that’s him. He’s a strong Aboriginal man and stands up for Muslims too.

Contrast the current political leadership and its shadow partner Pauline Hanson with the characters in this story:

  • An strong message from our highest court to four Attorneys General and a police officer (in the form of a costs order);
  • Unambiguous grounds for exercising the right to exclude a person from a specific place (you are intellectually dishonest and you’re not welcome here);
  • Collegiate support from a First Nations man to gather the courage and show a radical clip to 160 property law students in week one (What does it add?.. Go for it!!);
  • A young Muslim man empowered by a First Nations man (is it that Yanner? The same man? Yes!)

The Dunlop analysis

The dominant political news this week is yet another ugly announcement on asylum seekers. Its point would be lost without what Tim Dunlop refers to here as Turnbull being aided and abetted by the political media.

It is worth quoting Dunlop’s bullseye prediction at length. On Hanson, to whom Turnbull should, but like his predecessor Howard will not, say ‘you are intellectually dishonest and you’re not welcome here’, Dunlop notes:

“Pauline Hanson’s One Nation can no longer in any way be considered maverick, independent, anti-establishment, anti-elitist, or in any other way marginal to the political process and the political class. They are now well and truly an establishment party, legitimised by the Turnbull Government. This will be part of Turnbull PM’s lasting legacy. The resentment and anger that has always driven Hanson’s politics is now being assuaged by this courtship and legitimisation. She has got what she has always wanted: a seat at the table, an invitation to all the best parties, and the ability to entrench her own exceptionalism.”

This prescient observation is preceded by Dunlop’s equally accurate assessment of how the Turnbull capitulation will be packaged for the punters:

“This calming of the waters will be aided and abetted by the political media who long for a new “settlement” and the triumph of what they still insist on calling centrism. Or sensible centrism. Turnbull’s capitulation to the right and abandonment of everything he once allegedly held dear will be reinterpreted as pragmatism, sold as success, and be offered as evidence of his rising stocks. The “sensible centre” will be, as is nearly always the case, rightwing.”

Now picture any news coverage from the past two days. Any broadcast, any social media news feed, any bulletin, any hourly update, the latest headlines, any online news site, or op-ed, or analysis, or print edition. Has there been unambiguous condemnation of the racist hate and petty wedge politics gurgling from our political leadership?

Another Coalition regime, another week, another race-hate bait day

The story is that the Prime Minister and his Minister for Immigration and Border Protection are going to table a bill which, if passed, will outlaw people who have sought asylum in Australia from ever entering the country, based on one mode of transport – boat. This is the mode of transport by which Turnbull and presumably Dutton’s forebears, as well as every single person prior to the commercial aircraft industry, reached what is the largest island in the biggest ocean on earth.

Until around 60 years ago, for around 60,000 years of human occupation of this giant archipelago, there was no other way to get here.  The boat obsession (as I have written before), is unreal. It is obscene. It is the right to exclude on racist steroids.

Yet Malcolm Turnbull and Peter Dutton, like Tony Abbot and Scott Morrison before them, are choosing, for reasons of their own aggrandizement and absolutely no other cause, to disseminate yet more racist hate across the country.

Naturally, given the message makes for such compatible bedfellows, Pauline Hanson took credit for the government decision. Like Abbott and Morrison and Turnbull and Dutton, bigotry and hate-mongering are her favourite pastimes. Oh that we could turn the tables on all of them like Murandoo Yanner did, and say ‘you’re just a racist. Now you are kicking the Muslims around. Go, go… you’re not welcome here’.

The right to exclude a person from a territory

You come on my land, I sue you in trespass. Of course, there is no action in trespass if I invite you on to my land (the police are particularly sleazy and tricksy with this one. Be warned). Similarly, the law on country requires asking permission. The right to exclude is rarely needed when people have respect, and abide by the rule of asking permission.

Legal systems regulate human behaviour across a society. All cultures have rules about leaving our own place and entering neighbouring land. The English law, which is based on the English value of land as a source of wealth, emphasises the right to use and enjoyment, the right to exclude others, and the right to alienate – to transfer your interest in land to another (such as by sale or succession).

Obviously no-one would ever accuse the English of being internally consistent – they trampled across the world with their guns and bibles, breaching their own rules with vicious abandon. This differential application of their own principles is both a source and a product of deeply racist imperial violence.

But on this continent and her islands, for 60,000 years and counting, the central value is that the land is the source of the law (Black 2011). To harm or do wrong by the land is to harm or do wrong by the society. Before crossing a border, a person with authority to speak for country must give permission. The visitors are then welcomed to country. As in many cultures, this is a public ritual which endorses or verifies individuals’ actions.

This is not a complex proposition. In white law, depending on the type of land (public, private, rented etc) permission to enter is required, whether from the owner, tenant, caretaker, ranger, or other official. We might enter a park without authorisation and be issued with a notice or a fine. We might ring a doorbell, or knock on wood, bring a bottle, wait to be offered a seat. ‘Come in!’ we say ‘Please, have a seat! Can I get you a drink?’

These are host and guest norms for what we conceptualise as the private sphere; just as trespass and permits govern the wider social, or public, space. The norms and rules are shared with and taught to all members of a society.

In short, every culture on earth has systems of rules and norms for human interactions in different spaces. Australia is home to the oldest continuing culture on earth. This is one reason that Welcome to Country is not some token ritual or nod to political correctness, as many seek to portray. A Welcome to Country is the continuation of host and guest traditions established over 60 millennia.

So who is welcome here?

It is telling, then, to see how the bad-cop-worse-cop trash talk that passes for public debate these days is playing out. Hanson took credit for the government hate-mongering on refugees, adding ‘refugees are not welcome here’.

Right on script, Turnbull was given all the air time and column inches he wanted to intone gravely, in his favourite paternalistic voice, what a great country this is for resettling refugees. The most successful multicultural nation, he lectures us, with added erasure of First Nations people here, who have been developing multicultural protocol across 300-700 nations since megafauna roamed the earth.

Never mind the millions of words, the how many reports, including from the UN Committee Against Torture, the Senate Inquiries, the shameless bullying (and probably illegal inducement to leave) of Human Rights Commission President Gillian Triggs, the rapes, the murders, the self-immolations, the forced birth, the staff who sexually abuse children, the billions and billions and billions of dollars to corporate donors which run our ‘off-shore detention centres’.

‘Refugees are welcome here’ Turnbull lied, disgustingly, and his media cheer squad cheered. He must have some special plan up his sleeve, they hinted, in their increasingly desperate delusion that Turnbull is not really like this.

First Nations, legacy media, and the political leadership

But Turnbull really is like this. He really, really is.

Our crimes – a crime scene since 1788 as First Dog On The Moon, depressingly but accurately, put it this week – can not be sprinkled with fairy dust by a Stockholm syndrome legacy media who depend on leaks and tips rather than do their job (Andrew Welder’s searing analysis of dysfunctional media dynamic here).

Some future third-country settlement will not make the list of our gross human rights violations magically disappear. Who even thinks like that?

Well, political columnists from the Guardian to Fairfax to the ABC do, for a start. Which leaves only the independents like New Matilda and Independent Australia for anyone of basic human decency to read. Thank goodness for new media, because when it comes to Malcolm Bligh Turnbull, the fourth estate – whose duties include mediating the conversation of the demos ie between the public and political leadership in the modern nation state – has been derelict indeed.

The Yanner message is a lot clearer than the Turnbull-Hanson lies.

“I have been engaging with Indigenous communities and First Australians throughout all my time in public life and before that, but particularly as Prime Minister,” Turnbull lied, disgustingly, on his Abbottesque tour of remote communities this week. And the media cheer squad cheered, creating the impression of community consent and consensus that cheering creates.

When Murandoo Yanner asserted the right to exclude Pauline Hanson from premises on grounds of racism and intellectual dishonesty, the crowd clapped and cheered, showing community consensus; and Hanson, knowing the rules, left. She then took to the media to blather about alcoholism, just as Turnbull did in Yalata yesterday, because they both know how these things operate in the media and public spheres too.

What a repulsive pair. In their castles of sand, telling their mountains of lies, exercising the right to exclude people from this Aboriginal land, people who are fleeing persecution including wars in which we participate, and all to the manufactured sound of a falsely-constructed consent.

The unambiguous message to the Turnbull-Hanson cabal should mirror the one that Yanner delivered: You don’t care about Aboriginal people. Now you are kicking the Muslims too. You are just a racist. Go, go. You are lacking moral fibre. You are intellectually dishonest and you are not welcome to keep spewing your racist hate across this country.

Trust and the Census – who (definitely) benefits?

Consider these recent government announcements and decisions. Plenty of factors are at play, but which is afforded the most weight?

A $50 billion spend on submarines

  1. Christopher Pyne’s seat
  2. Census data
  3. Talking national security and border protection in an election campaign
  4. Opportunity for Malcolm Turnbull to say shtrong a lot

A Royal Commission into NT child protection and youth detention

  1. A show on the telly
  2. A report from the Northern Territory Children’s Commissioner
  3. Census data
  4. Genuine concern that government employees beat and torture black children

Another “crackdown” on welfare recipients

  1. The treasurer is a sadistic hater
  2. Census data
  3. Welfare payments are already very tightly targeted
  4. Family payments to the middle classes free up their income to invest in negatively-geared properties

Removing a tax-free loop hole from the tippy top most richest superannuants

  1. We need one policy that signals we are fair-minded
  2. We care about older women living in poverty due to inadequate superannuation
  3. Census data
  4. Malcolm Turnbull has a Mr Harborside Mansion image problem

Selling off the Land Titles Office to the highest bidder

  1. The morally bankrupt nature of neoliberalism
  2. Highly questionable relationships between major political parties and developers
  3. Privatisation gone mad
  4. Census data

Closing feminist-run services in favour of large contracts for corporate religion

  1. The church is just more trustworthy than feminists when it comes to vulnerable children
  2. Starting a conversation has more efficacy than safe secure housing
  3. Just because more men murder women each year doesn’t mean our policy is terrible
  4. Census data

I could go on all day.

But at some level we all get that sandbagging and pork-barrelling are euphemisms for decisions based on political expedience and nothing at all to do with accurate data capture.

There are many valid concerns about the census this year. These include data security and encryption and privacy and data linkages across government agencies and retaining our names and addresses for a longer period (18 months up to four years) than last census, especially when Data Retention legislation has been passed in the meantime.

These issues have been thoroughly covered by far better minds than mine, such as Ross Floate here and Richard Chirgwin here and the indefatigable Asher Wolf and Rosie Williams’ Little Bird Network.

The legal implications of not complying with Census instructions are set out here.

But what is really getting to me are people who say that a robust and accurate Census count will be of great benefit policy-wise, and cite Indigenous health and the homeless population to support their argument.

This is a typical tactic. We saw it when Josh Frydenberg said the superannuation changes would benefit older women.

Does anyone really believe that the Liberal Party cares more about older women living in poverty than the pressing need to have just one policy to hang claims about ‘governing for all Australians’ on?

The other typical feature of this argument is that the people making it – demographers, bureaucrats and other academics – are absolutely guaranteed to benefit from data linkages.

In contrast, there is no guarantee whatsoever, and not a shred of evidence, that Census data produces benefits for Aboriginal people’s health or for homeless people.

In the ham-fisted way that neoliberal government is done these days, the Census trust problems continue unaddressed.

Instead, a glaringly obvious problem is blundered and stumbled through, blasted and blustered at, urgently plastered over, in a make-shift, ad-hoc, amateurish way.

Why? Because the problem is not a significant problem for comfortable middle Australia. It is the tyranny of the majority writ large – a phrase that should be familiar to Liberal Party politicians.

Here are a few of the questions I would put to academic and bureaucratic defenders of the census changes:

Is public schooling a necessity for your children, or a choice? What about hospital cover? Is the GST that a sole parent pays on her child’s school shoes, upfront and at the point of sale, subsidising your investment property? While you judge her?

Have you ever been subject to years of Centrelink compliance measures? Have you feared for your life at the hands of your ex/partner?

Do you know anything at all about people in situations you have never encountered, let alone what is best for them?

But science

Why are demographers and other social scientists saying sciency things without any evidence?

Indigenous people on dialysis and with other co-morbidity diagnoses were counted in the last Census. Are they better off? Has anyone asked them? What is the link between data matching and their well-being, whether as individuals or a population?

How is we will know more about your death rates a convincing argument for people who are under more surveillance and incarcerated at higher rates than any other peoples on earth?

That is not science. It is disgusting and exploitative.

Homeless people were counted last Census too, or at least there was a genuine attempt to reach rough sleepers. But housing is a state responsibility.

Has anyone seen a propensity of Mike Baird to fund housing services based on data? Or on the number of men who kill women?

Baird has zero regard for evidence-based policy. This is a claim backed by evidence.

Similarly, merely counting the number of people in prisons and detention centres does absolutely nothing for the conditions for people in those places; and does absolutely nothing to decrease the rate of incarceration and detention (which are different things, according to the High Court of Australia; see Al-Kateb, critiqued here).

Trotting out some feel-good claim about more accurate measure of Aboriginal life expectancy and twinning this with generalised projections about data and better policy implies that the data collection will somehow improve morbidity rates for Aboriginal people.

But it won’t. The claims are disingenuous at best. Some would say such statements are grossly misleading. It is also harmful. This messaging is designed to create the impression that government cares about Aboriginal lives – when the opposite is true.

Some reflections on Homelessness and the rough sleeper count

In 2011 I was employed by the Australian Bureau of Statistics as a Special Area Supervisor – Homelessness. The homelessness collection was an attempt to count as many rough sleepers as possible.

There was no strategy to identify secondary homelessness. The ABS assumed that people who are couch-surfing would be counted in the households where they were staying that night.

This is naïve at best. A significant proportion of couch-surfers stay with friends or family whose rent is linked to the number of residents in the household. Those tenants are at risk of accumulating a debt, or even eviction, for extending a helping hand.

The causes of homelessness are complex, with multiple overlapping issues such as escaping violence, mental illness, and chronic addiction. But ultimately, homelessness can be traced to the breakdown of relationships, whether that is relationship with family, a landlord, an employer, or the state.

Couch surfing is tenuous and fraught, it raises a strong presumption that many relationships have already broken down.  Few people in this situation can afford to add more risk to relationships with a host or landlord or the state.

To assume that vulnerable people are in a position to take on more risk for the sake of government data collection is to lack insight into their situation.

One of the worst types of homelessness is created by government: TA. Temporary accommodation is when the state pays for housing applicants to stay in a motel. It is very widespread, not a one-off stop-gap but a systemised response – and a miserable and expensive failure.

TA creates anxiety. People are compelled to spend every day applying for housing and must re-apply for TA eligibility every week. It creates gross discrimination. Many motel owners split their accommodation and provide vastly inferior services – plastic cutlery, no toilet paper – to TA guests, as though somehow government money buys less service for no reason other than exploitation of the poor – and the taxpayer.

It is a terrible dehumanising system that creates mini-ghettoes and resentment while motel owners net huge profits on the government purse. Motel owners who are of course small business and thus eligible for the $20,000 immediate write-down at our expense while touting their own as entrepreneurial and innovative and not at all like those lazy bludgers getting rich on Newstart.

No census can or will change this entrenched inequality, whether people in TA are counted or not.

The 2011 rough sleepers count

ABS consulted widely and recruited supervisors from the social housing sector.  The training was better than the consultation but both were predictably paternalistic. It seems it is virtually impossible for white middle class professionals to not reproduce unrealistic and ill-informed assumptions and stereotypes about the population with whom they work – yet it is the homeless who keep them in a job and see their mortgages paid.

Some of those assumptions were around trust in authority. It is a familiar line – homeless people, or Aboriginal people, or young people, lack trust in authority. This is presented as some kind of deficit in the individual member of this or that community.

But the most cursory glance at the facts reveals that people who do not trust authority have reached an evidence-based conclusion: authority has, does, and will treat them badly. Violently. Brutally. Ignore their human rights. Deny their humanity. Be condescending and paternalistic and judgmental.

All of these are horrible experiences, and all are meted out, often, by government employees such as police; or government-funded employees, such as job agency staff.

So a mistrust of authority is a product of authority being oppressive; yet in the great Australian tradition this mistrust is framed as a deficit in members of the community to which government, historically and contemporaneously, has actively caused harm – usually under the guise of providing help.

The ABS had developed a two-tiered message for the homelessness count. The first was ‘trust us, we are trustworthy’. The second was ‘the data will assist government to make better policy which will benefit the homeless population’.

Fast forward to 2016 and the rules have changed, but the message is that same as that which informed our training for the homelessness count.

Using the same message for a different set of circumstances is lazy and complacent at best. At worst, it reeks of misleading the public: if there is a case to be made for the changes, why not make it? Why fall back on exactly the same message designed to engender a trust relationship with homeless people five years earlier?

Like all good tweeps, I put out a twitter poll: do you trust the government? There were two yes votes (n = 254). One person tweeted me to say she accidentally tapped yes.  Either way the yes vote was basically a margin of error. (No, I am not going to insult readers by spelling out the unscientific nature of a Twitter poll.)

Ironically, the failure to make the case for retaining names and addresses for a longer period is eroding trust in the ABS because the argument is so weak and the government so mistrusted.

The ‘better policy’ argument is specious for political expediency reasons already mentioned. The gap between the data collection and analysis and actual policy decisions, which are based on neoliberal ideology and electoral chancing, is huge.

In addition, people most likely to not be counted are the people most likely to need government services to survive. Not government money in the form of research grants and public service jobs and immediate tax write-downs and public housing guests, but actual resources to feed and clothe and house themselves in a wealthy society.

Yet the line about better directing government policy based on census data is widely accepted… by people who do not rely on government services. The academics and bureaucrats pushing this line are not grounding it in evidence of better homelessness services, or identifiable improvements in the lives of welfare recipients.

They are not doing this because the evidence is not there.

So like the trust argument acting to erode trust, the evidence-for-better-policy argument fails to point to evidence of better policy outcomes derived from the previous Census.

Meanwhile the evidence of a benefit to the academic or bureaucrat is there for all to see: there they are on the telly, with their job and media platform, well remunerated and recognised, as an expert in data capture and analysis.

Leaving aside identifiable groups of academics and bureaucrats, is the Census beneficial to homeless people? Unemployed people? Sole parents, carers, people with disabilities?

Are any of these groups better off than in 2011 because their status was counted and analysed by the ABS and other social scientists?

Why not ask them? I could easily find people who were counted as homeless in 2011. Pay me and I’ll let you know if any are better off, and if so how many.

The government has moved many Centrelink recipients on to cashless welfare this year. Why not ask Alan Tudge if this policy is linked to census data? Ask people on the Basics card what they think of the alleged link between their Census form and having access to only 20% of their payment in cash?

Media, social media and clickbait

And then there are the privileged and their cheer squads who go hahaha conspiracy theorists shut up who cares what a joke lol if you’ve got nothing to hide whaddaya fraid of why not be an elite like me spreading my disdain for intelligent, informed critique of the Census.

The worst bit is when these people pretend that their deeply conservative line, which conforms 100% to the government line, is somehow edgy and real.

Nah, Mark.  Agreeing with government and name-calling dissenters is not edgy. It is a well-documented standard practice of conservative white patriarchy, the tradition from which you massively benefit and proudly reproduce while posturing as some kind of hip n rad guy.

These are people who have never missed a meal in their life. Who have not lived in a car while trying to keep their children in school. Who are too wilfully ignorant to grasp the depths of their ignorance. Who know nothing, absolutely nothing, about the deliberately oppressive and humiliating systems imposed on public housing applicants and Centrelink recipients and prisoners.

But their view is so ingrained, so casually and callously normalised, that others fall into line, and even sell their testimony to prop up the lies and hate.

You know the kind of thing: I was homeless once and I got back on my feet. I will ignore the fact that being white or being a man or not having a mental illness or not having dependents means it was far far easier for me than all these other people who are just lazy or drunks or – this is actual claim – choose to be homeless.

No, thank you

The ABS asked me back this year. I turned the offer down, providing detailed reasons, and requesting that these reasons go on the record. My work in 2011 was extremely highly regarded.

Our team was seen as an exemplar of thoroughness and accuracy. The team of five was comprised of three Aboriginal women and two white women. We included one young person (22) and four mothers. Of course we were thorough and accurate. We were careful and respectful and professional; and trusted by the target population.

And while I passed on the offer and let the 2011 team know that the work was available, not one of us wanted to go out there again under the new rules. There was nothing to found any trust in the process. Some individuals may have improved circumstances, but by and large homelessness services have been trashed by the Baird government. Some families may have been allocated a house but meanwhile domestic violence services have all but disappeared into large non-specialist corporate religion.

These sorts of decisions are not driven by accuracy of data capture and robust policy development. These sorts of policies – cashless welfare, mainstreaming women’s services – deliberately negatively impact the poorest people in our community. And anyone who claims that Coalition government decisions give more weight to census data than religion, ideology, internal power games and political expedience is

  1. not paying attention
  2. lying
  3. entirely self-interested
  4. an attention-seeking tosser
  5. all of the above

Media and imbalance in the Conservative tradition

One of the many benefits of incumbency is that traditional media models and journalism methods favour the current government over the opposition.

This style of reporting is justified by citing the public interest. The claim is that the incumbent government position is more newsworthy. It is the government that is in a position to make decisions that directly affect citizens, and therefore it is the government pronouncements that should be foregrounded in the news bulletins.

(Of course it is governments, and not oppositions, that are in a position to directly affect media interests too; and these do not always coincide with the public interest.)

Structural advantages and self-interest

Foregrounding is particularly significant in election campaigns. It looks like this: the dominant message of the day is reported ‘above the fold’ – it is presented more prominently, in more detail, and more often.  It is more likely to headline and appear in off-the-hour updates; and be repeated as we ‘recap our top story’.

The inherent benefits are that the top ranking story is 1) more likely to be heard/read than other stories; and 2) more likely to be perceived by audiences as more important or more credible than an alternative position.

This is the prominence privilege dynamic. It favours the incumbent government. It is not in the public interest, but it is said to be.

At some point during an election campaign, traditional media decide whether to shift away from giving more prominence to the incumbent. Any shift depends on whether the opposition has become more likely to form the next government.

This is not a simple yes or no question, because so many interests are at stake. Suppose the Labor Party is now more likely to win, but it is not the preferred winner of heavyweight media interests. The shift may be put on hold. Some reasons are in the shadows: the influence of proprietors and pollsters; the desire of press gallery members to be participants in, as well as observers of, the political process.

Other reasons are more overt. Like voters, the media, its proprietors and employees are vested in electoral outcomes. Like voters, the media must source political information somewhere.

The obvious sources are face-to-face meetings with politicians, and political reporters. Some hardy voters attend town hall meetings or similar, and plenty of media monitor other outlets. Nevertheless, the vast majority of voters rely on political reporters; and the majority of political reporters are more likely to speak directly to politicians – at press conferences, interviews, debates, or for leaks, backgrounding and off-the-record quotes.

Prominence privilege and inherent conservative biases 

Leaving aside rumblings like Abbott’s agitating or who has been mothballed this week (is it Dutton? Ley? I can’t keep up) the core point of election campaigns is to choose between the parties. The parties have policies, which are units of ideology. Every policy is an articulation of social circumstances and how the next government will neglect or shape, subsidise or curtail, those circumstances. The parties design and sell their policy – legalise marriage equality, build more roads – in line with an ideology, such as neoliberalism or social democracy.

Take the NBN. A policy of affordable, high speed national broadband for all, regardless of corporate or shareholder interests, is grounded in a progressive, social democratic ideology. In contrast, a policy of concentrating the benefits of high speed broadband in the hands of the comfortable and wealthy, while neglecting people who are, say, unemployed or house-bound, reflects a neoliberal ideology.

That is an ideological divide. But there is also an ideological bias in traditional reporting methods. So-called media balance, like the system itself, is inherently conservative. It vigorously resists change. And high-platform media voices who call the election outcome are usually also inherently conservative.

So while one NBN policy is clearly of greatest benefit to the greatest number of citizens, to economic integration and to growth, to equality of opportunity and to regional areas… the other is currently being implemented. Its currency is its currency: this is how the public interest justification works to provide incumbent governments with prominence privilege.

NBN policy also has differential impacts on mainstream media: audience fragmentation, ownership of broadcasting rights and other media power bases. And this too is a factor for editorial decision-makers when calculating which story to foreground – on the front pages, at the top of the hour. The call on when (or whether) to shift on who will benefit from prominence privilege is reserved to the most senior editorial voices.

It is obviously unwise for high-circulation media outlets to cross a likely victor who has a vengeful streak – and democracy be damned.

These observations do not require a conspiracy, or an especially cynical outlook. It is a description of the political-media landscape, of the long-standing relationship between the various public estates. The relationship reflects multiple vested interests doing the self-interested thing that neo/liberalism insists is human nature (despite the many non-Western cultural traditions that give the lie to this claim).

During an election campaign, the prominence privilege dynamic operates in two ways. First, for the public interest justification given above, the dominant coverage is allocated to the incumbent (the first audio grab or quote or footage, the most airtime, the biggest and most frequent headlines, and ‘top story’ billing).

Second, or later in the campaign, the privilege is bestowed on whichever party is perceived to be most likely to form the next government. This perception is formed and reinforced in a homeostatic feedback loop by editors and their respective pollsters, by the message-makers and gate-keepers, the opinion writers and political commentators and press gallery, who then shift editorial decisions accordingly.

It is this second stage that we are in now, and it is this second dynamic that makes a call from a high-platform voice like Chris Uhlmann significant. While it is tempting to ask who cares whether Chris Uhlmann has called the election for the Coalition? Isn’t Labor going for underdog status anyway?

But Uhlmann is the political editor at the national broadcaster. He makes electoral editorial decisions at the ABC. He matters, whether we know he is hopelessly compromised and partisan or not. This is why we should care about blatant manoeuvring and participation (rather than observation and reportage) from well-placed media figures. A call like Uhlmann’s is timed to when more voters, particularly the all-important undecided voters, start to engage.

Uhlmann’s call, and his decision to make it now, was not only a very clear call for the Coalition to win, but also a very clear call which favours the Coalition. It provides scaffolding for the feeble public interest justification to be used to continue foregrounding Coalition speakers, Coalition talking points.

I can not over-emphasise the significance of this. Like the political editors at Fairfax, and the Murdoch press, and the commercial radio and televisions networks, these high-platform decision-makers determine what to cover, how prominently, for how long, and how often. If traditional media were going to shift away from its more prominent showcasing of the incumbent government, it would start to happen about now.

The decision of whether to shift tends to coincide with who the media wants to form the next government. They know how prominence privilege works., and have their own interests to safeguard. And because media interests do not always coincide with the public interest, prominence decisions only seem coherent when the two do coincide. When these interests are at odds, and the call has preferred media over public interests, we hear engaged voters asking why Uhlmann (or whoever) is calling the election for the Coalition (or whoever).

The Conservative Line, then and now

There are additional structural advantages when the incumbent and the expected winner (as claimed by media heavyweights) are conservative. The prominence effect accumulates and compounds, like financial interests of the wealthy (not a coincidence).

These dynamics stem from two related propositions: 1) the system is historically, inherently conservative 2) incumbents abuse incumbent power to maintain prominence and credibility and thus power.

The system is inherently conservative because the system was designed by conservatives: propertied white men. Remember, these were men whose property included legal ownership of human beings under a legal system designed and constructed by themselves. They also built mechanisms for favouring conservatism into the structural norms and conventions of the Westminster system. They called these design features checks and balances and said the purpose was stability.

This is not to say that conservative conventions are not also abused by conservatives. They are. This is also inherent, to the ‘born to rule’ nature of conservatism. Born-to-rule, by the way, is not some made-up slur. It is a centuries-old tradition of the British system that they forcibly imposed here. The formal term is primogeniture. It denoted which offspring (the oldest son) would inherit all the property and a seat in government (the House of Lords) through no merit whatsoever, merely an accident of birth. 

The default tendency towards incumbency is founded in these various formal structures – our stabilisers, or checks and balances – and has been reproduced down the centuries.

Fast forward to the 21st century, and the upshot is that apparently intelligent people say things like Malcolm Turnbull has gravitas, or the Liberal Party are the better economic managers. And the stubborn humanity and pride of some means that people will continue to make such nonsensical claims despite overwhelming counter-evidence.

Then there is the fact that conservatives will pull any lever, and use any tax-payer funded resource, to stay in power. After the lie of meritocracy, this is the next most crucial feature of conservatism, and it is enabled by inherent biases in traditional journalism methods.

The classic manoeuvre this time round was the way Turnbull, with the support of legal advice from his Attorney General, called a double dissolution despite no discernible democratic reason to do so. The double dissolution trigger was pulled for purely political reasons, specifically, to shore up the political power of our default, anyone-but-Abbott Prime Minister.

This was done because Turnbull has utterly squandered his political capital. In language even the dimmest Liberal apparatchik could understand: the high-risk strategy to invest in Turnbull’s popularity has delivered a negative return on investment. No dividend. And like most rich folks faced with this scenario, the party turned to lower-net worth individuals, the Australian taxpayer, to bail them out of a truly terrible venture capital decision.

This is not to hold Labor up as some kind of squeaky-clean golden role model (see: Eddie Obeid). But Labor are not in power, nor reaping the structural advantages of incumbency and prominence privilege in this election campaign. Quite the opposite.

So it is the conservatives who will, collectively, stop at nothing, no matter how extreme, unprincipled and in breach of conventions designed to ‘stabilise’ the system. After all, nice guys finish last, right? We may not want to believe that this continues, year in, year out, Parliament after Parliament. That we have progressed so little.

But progress is not linear. For every step towards equality and justice and rights for all, conservatives are on stand by to aggressively push back and reinstate their preferred – and rigidly unequal, unjust – status quo.

The events of 1975, unprecedented and unrepeated, are the prime example of this in Australia. The 1975 legacy includes even apparently progressive voices reproducing, to this day, the trope that Whitlam was reckless. This retrospective justification for conservatives breaching their own conventions is never balanced with an accurate observation as to how aggressively and unscrupulously the Coalition did everything in their power to bring down an opponent – and in so doing, destabilised the whole system.

Yet somehow, being conservative and destabilising the entire system, trashing the stabilisers designed by their own, is not as reckless or dangerous or destabilising as when progressives establish progressive policies for which they have a clear mandate from the electorate in a democracy. That is how it works.

And commandeering legacy, a very high priority for the conservative side of politics, works in other ways. Why stop at retrospective justification for deeply unprincipled actions? In a similar way, conservatives will commandeer any legacy they can not destroy. According to this narrative, the Hawke-Keating economic reforms were ‘bipartisan’, while attacks on Medicare and affordable tertiary education continue right now, in 2016.

So as we enter the final stage of this campaign, it is important to know the historical context, this deeply ingrained and vigorously prosecuted position that conservatives are supposedly the more credible governing body – which continues, as mentioned, in the face of overwhelming counter evidence, via abuse of incumbent power.

In this context, major media voices make both instinctive and calculated decisions about how and where to bestow prominence privilege. Where the call is that the conservative incumbent will win, it is not merely an observation or a punt or an informed prediction. Nor is it only a vested interest. It is a call that overtly favours the conservative incumbent. The call will vest in the conservative interest, for the remainder of the campaign.

 

Always was, always will be Aboriginal land

Late in 2015, as part of the Breeza and Liverpool Plains Harvest Festival, I camped for a couple of days with friends and colleagues on Gamilarray Gomeroi land near Gunnedah, not far from Tamworth, in north-west NSW. We were there to participate in, and document, the campaign against five Watermark Shenhua coal mines slated for the go-ahead by the NSW Coalition government.

After a group photo, the chant went up: ‘always was, always will be, Aboriginal land’. As a vocal minority called out this message, local farmers shifted their feet – and eyes – uncomfortably.

The night before, a group of said local farmers – young men all – joined us at the campfire, got rollicking drunk, and voiced the kind of racist statements we hear at any gathering of the agricultural elite.

One young cocky interrupted a conversation to ask a 21year old Gamilaraay man whether he is Aboriginal. On being told ‘yes’, the cocky described his experiences employing Aboriginal farm hands, and commented on the physical build of Aboriginal people in the Northern Territory.

After we listened politely for a while, and then backed away slowly, the young Gamilaraay man asked me if I thought the cocky was, well, a bit of a eugenicist. How we laughed. What can you do? The guy actually confirmed that he was speaking to an Aboriginal person before spouting false and racist commentary about supposed traits – both physical and work-ethic – of Aboriginal people.

I am white, but to the best of my knowledge this is par for the course, in the 21st century.

A racist polity: does it matter?

I do not tell this story to deny the constructive partnerships that have been built between traditional owners, activists, and the agricultural elite (and researchers, and small business owners, and scientists and city and country) as we work together to stop coal and coal seam gas mining. These relationships have taken a lot of work to build, together. These relationships exist, and matter.

But such relationships do not nullify the fact that we live in a racist country. Our very identity as a single nation-state, when the continent and her islands are made up of over 300 sovereign Aboriginal and Islander nations, is a product of racist violence.

This is a difficult and confronting fact. The incident of the racist cocky – and of our chant at the coal mine protest site – came to mind when I heard the audio clip of Bill Shorten speaking at the 2016 Reconciliation Dinner. It is why, for me, it is noteworthy that in his speech, Bill Shorten said ‘this continent is, always was, and always will be Aboriginal land’.

The accepted political wisdom is that there are very few votes in this statement.

For the first time ever, National Reconciliation Week (NRW) has fallen during a federal election campaign. This is not in itself particularly noteworthy. Federal elections fall due every three years, and NRW was established by Reconciliation Australia in 1996, a mere twenty years ago. Twenty years is approximately 0.0004% of the period of human occupation here.

Recent racism

The year 1996 was the last year of the Hawke-Keating governments, the year the High Court of Australia recognised the partial survival of native title in lands under pastoral leases in its Wik decision. It was the year John Howard was elected to the Prime Ministership of Australia, on a policy platform that included extinguishing native title.

John Howard is renowned for exploiting our inherent racism for political gain. He never hesitated. His racist rhetoric followed a trajectory in lockstep with views expressed by Pauline Hanson, just as his parallel actions were designed to distance himself from her.

Naturally, Hanson copped a lot more opprobrium than Howard. It is not as if the Australian electorate is any less sexist than we are racist. Howard was hugely ‘successful’, with his ‘plausible deniability’ and his dog-whistling technique. He has ‘inspired’ and nurtured at least two generations of nasty racist young Liberals (so far): the morally moribund ‘black ops’ who have now come of age.

Not least of the Howard acolytes was the self-proclaimed bastard son Tony Abbott, whose meanness and madness was carefully nurtured as only a grossly hyper-masculine organisation can ‘nurse’ such creatures (for the Freudians: this is womb envy). Abbott’s development was eventually arrested only by a bigger ego, our current Prime Minister, Malcolm Turnbull.

And the nation, or at least the media and their polling partners, dominated by the same white male demographic, proclaimed that this Turnbull, another (richer) white man, could solve the problems of the nation, a systemically, endemically, sexist, racist polity.

For who? And how is that working out? Not by citing gun control and looking back on John Howard with rose-coloured glasses. Such an approach is delusional.

But then conservatives always put legacy before actual achievement. It is inherent to conservatism, devoted as it is to the past and maintenance of the status quo. Conservatives put retaining power first and legacy second. Governing the country comes a very distant third.

Could the Liberals be less terrible?

Look at it this way: Menzies had an excuse.

Yes, self-determination emerged in the post-war years as a central principle of human rights, along with the most endorsed document in the history of humanity, the Universal Declaration of Human Rights itself.

Yes, it was not until the late, great Gough Whitlam won the 1972 election that Australia was dragged into operationalising post-war human rights principles such as self-determination and thus land rights. Yes, Menzies was an Anglophile, a relic from an era when all Australians were born British subjects and it meant something – or it meant something to the white Australians.

But maybe Menzies was not completely terrible. He signed us onto the Refugee Convention (1951) and codified it into law (Migration Act 1958 (Cth)). In his limited and pompous way, Menzies represented Australia as a responsible member of the international community. White Australia, which was (legally) a half-century old by then, was not dismantled on Menzies’ watch, but post-war immigration boomed and white Australia became doomed. There was no way white Australia could remain intact under Menzies’ successors, no matter what their political hue.

And Howard? Howard is now a Menzies biographer no less. A self-seeking, legacy-profiteering acolyte. What is Howard’s excuse for being a backwards relic of another era, not just now, but while in government? Is it that he grew up under Menzies, and had arrested development throughout the civil rights and women’s liberation movements? That does not wash.

The entire ideology of liberalism is constructed on the assumption that men are rational. This, says the liberal tradition, is what differentiates men from other creatures. These socially constructed assumptions of superiority over, say, dolphins, rely on social Darwinism, while refusing to evolve. This in turn is founded in its own self-interest, or reasons, while calling self-interest rational.

See how that works? And we wonder why conservatives are incapable of dealing with, for example, climate change.

The refusal to evolve, the resistance to change, is inherent to the conservative project. Like its two icons, Menzies and Howard (Fraser rejected the party before the party rejected Fraser), the Liberal Party is deeply conservative.  Even its name is a lie.

It was not that long ago

In many ways, the Howard era (1996-2007) was defined by racism. It is his signature legacy, his lasting contribution to the Australian polity. he set out to see any progress toward racial equality or self-determination or Aboriginal rights forged by Whitlam, Hawke and Keating  – and even Fraser – under whom he was the worst treasurer this country has ever seen – be rolled back, undermined, attacked, destroyed.

Howard’s immediate and unreconciliatory amendments to the Native Title Act 1993 (Cth) set the scene for years of racist policy- and law-making to come. Later campaigns included demonising asylum seekers as terrorists (2001); and the abolition of the only national, elected, representative Aboriginal and Torres Strait Islander body in the land (ATSIC).

The final Howard election campaign (2007), in an effort to not lose his seat and government (he lost both) the then-Prime Minister and his ex-military Indigenous Affairs man Mal Brough announced they were sending in the army to Northern Territory communities because look at all those mining riches well black men you know what black men are like.

Just some of the indescribable damage we caused under the so-called Northern Territory Intervention is described here.

Nobody did more than Howard to ensure that post-war developments in human rights, in racial and gender equality, in land rights, recognition of Aboriginal rights and interests in land, in women’s liberation, environmental sustainability, climate change … were trashed, broken, swept away, kicked to the kerb. The man stood for nothing and nurtured no-one but his own: politically invested white patriarchal industrial, corporate, and social interests. And no-one did he nurture more than Tony Abbott.

This destructive impulse, or more likely frank incompetence, is evidenced by the fact that Howard failed utterly to ensure any form of succession. If anything, Howard completely bollocksed the potential succession out of spite towards his Treasurer and deputy. Although to be fair, Costello was no better in the political skills stakes by then. After ten years in power it would be beyond naivety to expect anything more from the Liberal Party than incompetent, lazy, born-to-rule complacency.

This is one key reason Howard lost his seat as well as lost government. People put up with the old man rapidly losing relevancy for so long, out of loyalty and respect and deference, but if he can not even handle succession?

Not all cultures are like this. But Howard and Costello benefit from a specific form of social organisation: white patriarchy. It is women and children who will continue to show loyalty and spend time and provide meaning to Howard in his dotage. Howard was sacked, but most claim to leave in order to ‘spend more time with family’. After a lifetime of grasping and game playing and destroying people’s lives, one or two may come to understand what actually matters. The huge cost to other people’s children and grandchildren, such as of the elders struggling under the Northern Territory Intervention, is unlikely to cross the tiny mind of a Howard or Costello.

That was then.

This is now

There is a reason I recount this disaster of a Prime Minister, a man whose reign is hailed as a success because he ‘won’, despite the lies, the massive and continuing damage, the racism and sexism and backwardness. Despite the meanness (Howard) and the madness (his protégé and chief head kicker, Abbott), that is this legacy.

This is the Australia in which our young cocky grew up. Hard to imagine, isn’t it? This person came of age, his entire high school years and development towards adulthood, was dominated by a backwards racist sexist, a small and nasty, petty and mean-minded, talentless suburban Liberal Party hack with no original ideas, no creativity, no vision, and no greater articulation for the future … other than that Australians be relaxed and comfortable.

To be a young white man coming of age in this period meant to win at that? How foul. Whoops! I mean what a time to be alive.

The point is not to defend these men, either old or young. The point is that they inherit and hold more social, political and economic power than anyone else – without having done anything for it, let alone having worked hard. It is axiomatic that the beneficiaries of structural advantages perpetuate the mythology of meritocracy most aggressively.  Under white patriarchy, when a trope is demonstrably untrue,the white men who benefit from it most are always in the forefront when it coms to reproducing the lie.

The point is to note that very few federal election campaigns see a robust Aboriginal policy platform at all, let alone a policy plank around Aboriginal identity, sovereignty, or rights.

In 2007, Kevin Rudd added an official Apology to the Stolen Generations to his policy mix, a promise he delivered on 13 February the following year.  It had been a while since a major party had the courage to put up what would be done for Aboriginal people, rather than what a future government would promise to do to harm Aboriginal people.

Few people would claim that the Apology had tangible benefits for the material circumstances of Aboriginal people. Many argue the opposite. Nevertheless, as a campaign policy, the Apology was couched in the language of democratic principle: a Royal Commission had made a recommendation, which was to Apologise, as a nation, to the Stolen Generations, to take collective responsibility for our actions. A social-democratic political party stated that if it won government, it would implement this recommendation, because social democratic ideology subscribes to collective action and collective responsibility.

This is how our democracy works. And it is in this context that we must understand what Bill Shorten said:

This mighty continent is, was, and always will be Aboriginal land.

Religion rhymes with prison

The Tim Minchin song Come Home Cardinal Pell arrived like an avalanche in my news feed this week. This is not surprising. I’m a Minchin fan and atheist; and am friends with people who see no reason to believe in the existence of things for which there is no evidence and have cool taste in music.

The mainstream media caught up the next day. Kristina Kenneally penned a highly lauded piece published in The Guardian which also questioned the place of god in a world where the Catholic Church continues to protect rapists and the protectors of rapists.

The pope was also in the news this week, for snapping at one of the faithful. In Mexico. That was the day after the Minchin song hit the headlines. No coverage I saw linked Francis’ loss of composure to the possibility that providing sanctuary to a man nicknamed Pell Pot would create considerable cognitive dissonance for a man who is assumed to have a moral compass.

Being trained in law and not in psychology, my comment is that it seems highly unlikely that these sets of circumstances – Pell being publicly requested to face the music, the Vatican choosing to safeguard Pell from a Royal Commission, il papa losing his cool – are unrelated.

Much of the commentary on the Minchin song is collected and criticised in this excellent post. The discussion I heard on ABC radio, between four journalists – Richard Glover, Jennifer Hewiit,  Joe Hildebrand and Emma Alberici (in order on which they spoke about the song) – was unanimously critical of the – wait for it – language that Minchin used.

The four were ‘in furious agreement’ (Alberici) in their offence at Minchin and defence of Pell and his apparent rights. These rights remained unspecified, for the obvious reason that every courtesy has been extended to Pell and none of his rights have been violated.

Here are some of the highlights:

Tar and feather him

Shouting scum scum scum

Celebrities jumping on the bandwagon of the cause de jour

Hurling abuse

Lynch mob mentality

Pitchforks at dawn

Abusive

We all know paedophiles are evil of course…

Yes there were a lot of mistakes made…

 

This is four highly trained and remunerated journalists commenting on the release of a song – a song which says scum once, not three times – which suggests Pell should front the Royal Commission into Institutional Responses to Child Sexual Assault.

The reason Pell should answer the questions of the Commission is that his institution, the one for which he was the most senior representative in Australia, is a known recruiter, harbourer and protector of paedophiles. Priests who rape children. Men of god who use their purported moral superiority to gain access to children and rape those children. That is the problem. They are the wrong-doers. Not Minchin. Not the Royal Commissioner. The rapist priests. We seem to have lost track of this fact somehow.

The most repulsive illogic here is commentators who draw false equivalences between the gross crimes and cover up by Pell and a man singing a song with the word scum in it. These are not comparable moral questions. The word scum is not even offensive to anyone when used in other contexts. But say it about the pope’s man and suddenly those who hold themselves as king mediator of messages call offence.

In the stampede to defend the very important man, we hear all about his rights when his rights have not been breached in any way shape or form. What are we not talking about while blathering about Pell and his not-breached rights? Yes. The victims and survivors of priests who rape children.

Mainstream media feels under threat from social media and the diversity of voices that are now heard in spaces for which they never had to compete, except among each other. The only way they know how to fight back against this threat to their monopoly on controlling the message is to side with power. So they minimalise and trivialise the horrors exacerbated by Pell.

This erases victims from the story. It also directly contradicts the claim that our society condemns adults who sexually assault children in the harshest possible terms. We say we do, and politicians have ramped the child rape sentence up (to a maximum of 25 years) to make it appear equivalent to murder.

Of course this grandstanding has not been and will not be matched by our political leaders loudly condemning the institutions which have failed victims and survivors at every turn.

We do not condemn all men who rape children in real life. Just some of them. We excuse priests and teachers, and burble about their rights and presumption of innocence. To be held innocent until proved guilty beyond reasonable doubt, by the way, is a principle of the criminal law, not investigatory proceedings like a Royal Commission.

At the same time we mobilise millions of dollars to further oppress and violate the rights of Aboriginal people in remote Northern Territory communities on far less evidence than has been collected by the RCIRCSA. A specific group of men are routinely portrayed as sexual predators and condemned en mass across our media landscape.

Where do they think the blue-eyed babies came from?

Children are still not believed. Lives are still wrecked. Families still shun survivors who speak out. Opinion makers still say things like ‘yes mistakes have been made but…’ The Case for the Pope being indicted at The Hague for Crimes Against Humanity – the hundreds of thousands of victims of rapist priests – has been made by none other than Geoffrey Robertson QC. And all we ask of Pell is to answer the damn question: what did you know?

 

HOW DYSON HEYDON RULED ON HIMSELF: IT’S CONVOLUTED

 

 

After several false starts, we finally learnt this week that Mr Dyson Heydon will continue in his role presiding over the Royal Commission into Trade Union Governance and Corruption, despite submissions of apprehended bias, as determined by himself.

The reasons for his decision, presumably written in long hand, run to some 67 pages. Few would find it entertaining reading. As befits his reputation as a black letter law man, the document is wordy and complex, replete with minute detail as to what the Commissioner perceives to be the relevant facts and law.

As with any text, the reasons also contain unwritten assumptions. For instance, the Commissioner assumes that it is possible for a decision maker such as himself to bring an objective and neutral mind to his decision-making tasks. This assumption pervades our legal system, yet is questionable at best; and at worst, it is simply untrue.

Are judges impartial?

Consider the fact that decisions in lower courts are routinely overturned on appeal; or that a unanimous bench (such as a 7-0 decision of the High Court), is extraordinarily unusual. Judges make these decisions, and judges all have the same basic task, which is to apply the law to the facts and circumstances of the case at hand. If all judges are impartially carrying out their duties, in accordance with consistent legal reasoning and training, how to explain successful appeals and dissenting judgements?

Human error is inevitable, but if this was the only explanation, we would not see High Court cases almost always decided by majority (rather than unanimity). So there must be some other cause or causes. To explain the parallel universe of the legal system, we must look outside the legal system; and bring understandings from sociology, intersectionalism, and cultural studies to our understanding of the law.

Every person is a product of their background and training, of their experiences and their knowledge of the world. It is unlikely that Dyson Heydon has reflected on the social facts of his demographic privilege. There is no evidence that Heydon is alert to the dominance of white men in the process of defining what is or is not a binding precedent, for example. The harsh realities of oppressive social constructs – such as sexism or racism or homophobia – are not part of Heydon’s lived experience. He can only understand such prejudices, harms, and wrongs in the abstract.

This may seem obvious, but it goes to the heart of whether the 67 pages of reasons as to why Heydon will remain as Royal Commissioner are based on a false assumption. To accept his reasons for his decision, it is necessary to accept the claim that Heydon can bring a neutral mind, and rule impartially, on submissions as to his own apprehended bias.

 

Is Dyson Heydon a judge?

The claims made in support of this proposition are that it is the norm, at law, for judges to decide on their own recusal in the first instance. This is accurate. If a judge rules against his or her own recusal and a party is still troubled about apprehended bias, the next step is an application to a higher court, where another judge will rule on the question. So yes, this is common legal practice, which does not make it right, but it is lawful.

The ground for making a distinction between Heydon and all the claims made about him based on his judicial experience, or on what judges do, is this: Heydon is not a judge. So what? I hear you ask. He was a judge, a High Court judge, he retains all his judicial knowledge. And indeed he does.

But Heydon is ineligible to be a judge in 2015, under s. 72 of the Australian Constitution. Second only to the overwhelming vote to amend the race power in 1967, Australians voted a resounding yes in 1977 to make it compulsory for judges to retire at 70 years of age. Incidentally, that referendum co-incided with Sir Garfield Barwick’s tenure as Chief Justice of the High Court and operated prospectively, so Barwick was not subject to the amendment and stayed on until he was 77 years old.

Either way, and despite our Prime Minister’s apparently cavalier attitude to the Australian Constitution, it would be unconstitutional to re-commission Heydon as a judge. So Heydon is not a judge.

 

Is Commissioner Heydon impartial?

Heydon is however an appointee of the Abbott government, commissioned by letters patent signed by the Governor-General, to investigate ‘governance and corruption’ in trade unions. There are important implications here – in law, and in real life.

The oldest political party in Australia was formed as the workers’ party, the political branch of organised labour, otherwise known as trade unions. This is a perfectly legitimate political activity, and if it were not, the conservative forces would have abolished it by now. Sir Garfield Barwick himself, when Chief Justice of the High Court of Australia, advised then-Governor General Kerr on dismissing Gough Whitlam. The immortalised Bob Menzies tried to abolish the Communist Party – and was defeated by referendum.

It is folly to underestimate the irrational anger of conservatives when they do not get their way. It is important, also, to note that referenda are powerful. We should be alert to this as Abbott throws around thought bubbles on marriage equality and recognition of First Peoples.

So. Any attempt to obscure the fact that Heydon is presiding over an investigation into Abbott’s political opponents is sophistry of the worst kind. Our two-party adversarial system is borrowed from Westminster, the English having already imposed the ‘absolute executive power’ model (in the form of Governors), on the true owners of the continent and her islands.

As Her Majesty’s Loyal Opposition, the Labor Party in 2015 has a duty to hold the government to account and propose alternative policies, so the people have a choice in a democratic election. Again, this is a conventionally legitimate role in a Westminster system of government. Yet Abbott, ever acting like an Opposition leader, establishes a Royal Commission to look into the governance and corruption of trade unions.

The terms of reference, as was ever thus, define the findings. That there is corruption among trade unions is not left open to the evidence but is instead a pre-determined finding. (The terms of reference do not, however, point to with whom these corrupt dealings are done. Other trade unions, perhaps?)

In addition to the terms of the reference and the Constitution, the evidence suggests that Heydon is not alert to his own privilege, politics, and ideological beliefs. This is tricky territory. Heydon’s privilege is a matter of fact, shown by his race, sex, family background, and so on. We only have to identify the known empirical facts on inherited privilege such as white male property ownership, income, and power-holding positions from politics to the judiciary, professorships, corporate boards, and prominent media platforms. See for example Dylan Matthews’ analysis of Trump’s wealth and lack of investment skills here and George Monbiot on Mitt Romney, Gina Rinehart and other perpetuators of ‘self-made man’ mythology here.

 

Legal reasoning for non-lawyers

While the social facts are known on how our father’s status is a determinant of our own, (for example, Heydon’s father was a senior public servant under the Menzies government, when Garfield Barwick was Attorney General) assertions about Heydon’s politics or ideological beliefs are not matters of fact.

Heydon has not expressly stated that he is a supporter of the Liberal Party. Rather, he has said that accepting an invitation to speak at a Liberal Party fundraiser is not necessarily, in and of itself, indicative of any political support for the Liberal Party.

Here is how it is done:

 

The definitional question is important because under the Ebner test it is necessary to see whether the selected definition, if the facts indicate that it is applicable, reveals the characteristic and meshes with the issues which it is said may as a result not be decided impartially.

 

Heydon accuses the ACTU submission of imprecision [at 75] because counsel variously described the Barwick dinner as a ‘Liberal Party’ fundraiser, function, and event. Had counsel only described the dinner in one way (a Liberal Party function, say) then Heydon could just as easily have replied that the event was more properly described as a lawyers’ professional event than a Liberal Party one, as indeed [at 79-80] he did.

 

…an address about a topic unrelated to the possible goals of the Party with which the two lawyer groups are associated cannot give rise to an apprehension of bias. In that example there is no proselytizing and no substantial Party activity. In the present case, the additional element must come, if at all, from the suggestion that the Address represents substantial Party activity or involvement in raising funds.

It is a familiar and legitimate technique of legal reasoning to include definitional concerns, for instance when the judge sets out the ‘material’ facts of a case. This defines the parameters within which the case will be decided, what is relevant and what is to be discarded as irrelevant; thereby nudging the ‘legal reasoning’ towards the preferred outcome. The problem is when judges or Commissioners propose that the decisions and reasoning they bring to this mental task is neutral and impartial, or in tune with or inspired by the real world. It isn’t.

For instance, we could try and picture Heydon accepting an invitation to speak at a Greens party fundraiser. Would he? Of course not. But there is no evidence to support that conclusion. The facts are that Heydon did accept the Barwick address invitation and has never spoken at a Greens fundraiser. Or we could look at it the other way: would a Labor lawyer accept an invitation to address the Sir Garfield Barwick dinner? The answer is no, not unless she was extremely gutsy and prepared to turn up in order to attack everything the audience holds dear. How do we know this? Because, in obvious and flagrant breach of the doctrine of the separation of powers, then-Chief Justice of the High Court of Australia, Sir Garfield Barwick, advised then-Governor General Sir John Kerr, on the dismissal of Gough Whitlam.

But at law, this does not prove anything about Heydon’s politics. Back in the real world, it is abundantly evident to anyone who is awake that accepting the invitation to speak at a dinner organised by the Sydney lawyers’ arm of the Liberal Party is strongly indicative of where Heydon sits on the ideological spectrum. Some may even say that accepting the invitation, the facts of his elite background, and the many judicial decisions available on the public record, are conclusive: that from these known facts and decisions, we can conclude that Heydon is a deeply conservative old man.

 

The law and the real world

But this is not how the law thinks. A sociologist could probably be found to agree with this assessment, if they have the courage to upset the establishment. It is in sociology and cultural studies that we find a more accurate understanding of social constructs. Such social constructs include classism, sexism, racism, and homophobia. Or more radically (and more accurately) we might speak of socially constructed systems of oppression that overwhelmingly benefit white male hetero-normative cis-gendered neuro-typical crony capitalists.

The standard response to these claims is that the wealth and comforts of the modern world are products of this system. The answer to this grandiose claim is to identify those groups of human beings who are not in fact the slightest bit comfortable in the modern world; and to ask: if human ingenuity and progress are not for all humans, who is it for? This brings us back to the privileged elites exemplified by men like Dyson Heydon (and Tony Abbott).

These are difficult arguments to put, because the dominant hegemony invisibilises the norm. Few people are raised to recognise that whiteness is privilege. In contrast, many people are trained to recognise that non-whiteness is ‘disadvantage’. This obscures the human agency involved in creating groups of disadvantaged citizens. We have whole swathes of legislation outlawing discrimination on grounds of sex and race, marital or pregnancy status, sexuality or religion or ethnicity. Someone must be perpetuating all these discriminatory practices.

In this context, it becomes undeniable that white men do not experience sexism and racism, and thus can only understand such harmful behaviours in the abstract. We must then ask whether white men are uniquely ill-equipped to make decisions in this area: questions as to discrimination, for example, or in the same general category, questions of prejudice and bias, or impartiality, objectivity and neutrality. Here is what Heydon found:

I have concluded that it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the questions which the work of the Commission requires to be decided.

Lawyers love double negatives, which are deployed to obscure the weaker aspects of convoluted legal argument. If you are reading a legal document and spot a triple negative, pay close attention. It is a signal that the claims are on shaky ground.

Heydon has not concluded that the fair-minded layperson might apprehend that he may bring a partial mind to the resolution of the questions which his role as Commissioner requires that he decide. This torturous re-working of his sentence has a point.

It would be a cinch to find a person on the street who thinks Heydon is biased. A non-lawyer who apprehends that Heydon is biased. Who comprehends that even if they themselves do not necessarily think Heydon is biased, there is a public perception that Heydon might be biased. This is a simple empirical proposition, easily tested by standing on the street and asking people.

But the law does not work this way. It is not established legal practice to ask ordinary people what the ordinary person thinks. Instead, the law creates hypothetical constructs of fair-mindedness and reasonable persons and ordinary bystanders and what-not, all of which are euphemisms for non-lawyers. The law then appoints extremely senior lawyers who are immersed in the law and have been for decades – judges and Royal Commissioners – to pronounce on their own neutrality, according to their learned legal reasoning, as applied to what a hypothetical non-lawyer thinks.

The law then reproduces and hands this process down through the ages, for the law is what the law says the law is, even on the topic of what a made-up non-lawyer is thinking, inside their non-existent non-lawyer head, but without asking the many non-lawyers available to be asked. This is accepted by other lawyers as normal in terms of legal reasoning, because it is the law. Meanwhile, around the country, actual fair-minded laypersons are tearing at their ears and crying ‘what did he just say? Was that a double or triple negative? How is he assessing his own neutrality?’ And, also echoing down through the ages, ‘The law is an ass!’