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Blood on all their hands

In the 2010 federal election, the Liberal Democrat Party in New South Wales polled around 96,000 votes. In 2013 their first-placed candidate polled around 416,000 votes. This analysis shows that the party increased its vote by over 50 times, or 5000% between 2007 and 2013.

Wow! That party is on the up and up! It must be quite something, right?

Well, no. According to the winning candidate, some people “voted for us because we were first on the ballot paper – there is always a sizeable number of people who don’t care… Then there are some people who mistook us for the Liberals, probably the Liberals, but they could also have mistaken us for the Christian Democrats or even the ordinary Democrats.”

In his own words, David Leyonhjelm was elected by the donkey vote, lazy Liberal Party supporters, a few illiterate Christians, and someone who forgot that the Democrats disappeared in a puff of GST smoke (watch that space).

Here is the same information in formal logic terms. There are correlations between the facts – exponential increase in the vote, the number one spot on the ballot papers (which is drawn from a hat), the apathy of rusted-on Liberal Party voters – from which we can draw conclusions. Correlation is not causation. Correlation can, if researchers have sufficient context and skill, be evidence of causation. What this means is that there are plausible reasons – correlated facts – that explain what probably, in all likelihood, ahead of other random non-correlative or non-fact based explanations, caused the outcome.

Of particular note: the candidate posits that he was not elected on his policies or abilities or appeal, but due to the party name and its lucky ballot paper placement. He is an elected representative who is not representative of the electorate. In the parlance of liberalism, his achievements are not on merit.

This pro-gun, anti-feminist, aging white male ‘libertarian’ nevertheless took a seat in the Australian parliament on the recently increased backbencher salary of $203,020 a year (plus expenses). Not bad for a lazy liberal constituency and some donkeys. At the same time, penalty rates have been cut for some of Australia’s most insecure and lowest paid workers. The government has legislated future income tax cuts of over $7000 a year for people who are paid – wait for it – over $200Kpa. Low and middle income workers get about $10 a week.

The total cost to the budget bottom line is an estimated $140 billion over ten years – the time period chosen by a government facing certain defeat in the next 18 months to sell what are basically budget booby-traps. Structural deficits in the Howard-era model. Pre-legislating to sabotage an incoming administration may seem extreme, but is really nothing more than variation on a very familiar theme. The post-electoral budget blackhole scream was long a best-selling performance, until then-Treasurer Peter Costello introduced the Charter of Budget Honesty in a moment of panic. Like all tory policy, this became an opportunity to tell lies in set pieces designed for the dissemination of dishonesty.

Meanwhile, the unemployment payment for people who would notice $10 a week – or $7000 a year – remains unchanged. The conditions for income support have been made, by the usual method, which is by passing legislation, ever more immeasurably, horrifically, breathtakingly, cruelly, and fatally worse.

Anyway where were we? Oh yes. Before coasting into the Senate on the previously unexplored opportunities of the lazy Liberal donkey combo, Leyonhjelm was a failed candidate for Liberal Party pre-selection. And since then, collecting millions in AEC campaign allowances on the way – on top of that $200Kpa – he has, like the racist Hanson, voted with the conservative Coalition government 60 per cent of the time.

Who cares? Well, very few people, until the day the parliament rose for the 2018 winter recess and South Australian Greens Senator Sarah Hanson-Young stood to read into the Hansard the disgusting remarks this aging white male ‘libertarian’ regularly shouted across the chamber – sexual harassment, given the Senate is her workplace – under parliamentary privilege. What followed was a full week of media coverage.

The ABC, among less credible and trusted news organisations, chose to provide a platform to the sexist senator to repeat his revolting remarks, multiple times. This is entirely predictable. There he was, talking talking, given every opportunity to legitimise, validate, disseminate and amplify his crass and nasty message… by the 730 Report, on ABC Sydney radio, on Radio National.

This is irresponsible and dangerous. Here is the evidence.

David Leyonjhelm speaks directly to a group in our society euphemistically known as MRAs, or Mens Rights Activists (predictably, a white man has been given a platform to opine on this obvious fact without noting the complicity of the media. It is in the Guardian feel free to google it). These men are aggressive, angry, violent or potentially violent, and their core culture is derived from separated fathers. Violent men who have less domination and control over a woman who has left them and their children than they once exercised are extremely dangerous.

In a developed country with universal health care, the most dangerous time in a woman’s life is leaving an abusive male. One third of all homicides were preceded by domestic violence. Not coincidentally, the vast majority of mass shooters in the USA are men who have previously abused women they know. The same is true of the ‘terrorist’ Man Haron Monis, a man who probably was mentally ill, unlike all the white males who kill family members and are unreflexively offered this benefit of the doubt. Monis sent letters to then-Attorney General George Brandis, flagging his questionable stability, but nothing was done. His actions were later used to justify more ‘anti-terror’ laws; but not to increase funding for women’s shelters or mental health services.

The angry violent men who blame women for their inadequacies are the audience Leyonhjelm wants to reach. His purpose is simple: re-election to the Senate. This is the workplace where he harasses Senator Sarah Hanson Young with nasty innuendo that he has repeated widely courtesy of legacy media, including three times on the ABC Sydney radio drive program in one half-hour segment.

Every time, Leyonjhelm is increasingly enabled to reach his audience of angry men. It does not matter what false equivalence is later offered up as ‘balance’, such as interviewing Senator Hanson-Young the next day. Any media professional who thinks that irrational and angry men will tune in the next day to carefully weigh up the ‘other side’ is a fool who a) knows nothing about angry violent men; and b) has been played. The damage is done.

At the end of a week when Leyonhjelm was indulged all over the airwaves and his hideous opinions discussed at length in print and online, a separated father shot dead his two children in cold blood and then killed himself. Another man has been arrested for burning down a house with a woman inside. He was reportedly her ‘carer’. She is dead. Think about that. Two more men have been arrested for murder. Both victims were women with whom they were or had been in a relationship with the killer. Think about that, too.

Here are the facts which correlate. A pro-gun, anti-feminist politician who speaks directly to angry violent men was provided with widespread exposure to espouse his nasty hateful views across multiple media platforms. These decisions by editorial teams amplified his views well beyond an otherwise tiny audience. Given the credibility and trust in which the ABC in particular is held, these decisions validated and legitimized him as an elected representative. Remember, he was elected by a donkey vote and some lazy Liberal Party supporters. He needs exposure to survive, and was given it.

By the end of that week of saturation coverage, the average rate at which men kill women in this country – which is one per week – had tripled. Then there was the child-killer. So four times as many men killed five times as many victims as are killed on average in what are euphemistically called ‘domestic violence incidents’.

That is the correlation. Is there a causal connection?

My answer is yes. First, the increase is so great as to not be statistically insignificant. Sorry to be so cold, but this is the kind of logic that males with influence, but who are none too informed on male violence, demand of women. I said earlier that correlation is not causation, and that correlation can be evidence of causation, if the person joining the dots has the context and skills to do so. When the person with the requisite skills and knowledge is a woman, and a pro-gun anti-feminist has been given a platform to communicate with his constituency of angry men, the Science is Facts!! crowd start shouting in defence of violent men at women survivors of domestic violence.

So, we muster more logic, tedious and unnecessary to anyone with an ounce of humanity as this ought to be, and do the thing, which is to account for other possible variables. For example, we know that men are more violent to more women in particular sets of circumstances. These circumstances include big sporting occasions, holiday periods, and the hotter months. The football factor is so pronounced that there are advertisements in the UK showing how many more men will beat up women when England loses, which it just did, in the World Cup.

Were these factors present during the week in which Leyonhjelm broadcast his misogynist views to his angry male audience via a complacent and complicit media which can only perceive ‘balance’ from its own programming perspective? No. There was no footy grand final, no long weekend, no commercialised religious tradition. It is the middle of winter.

There is one other conclusion available: that at the end of a week when the media widely disseminated and legitimised the crass and misogynist norms of a male parliamentarian, we saw a significant but completely random increase in the number of men killing women and children. Maybe.

In news that will surprise nobody who knows anything about male violence, in the aftermath of the slaughter this week, an even less plausible thesis has been offered.

Like David Leyonjhelm, the institutions in our society are white and patriarchal. This is true of politics, the parliament, government, bureaucracy. It is true of media and families, corporations and industry, religion, universities, the arts. What this means, and it is not a complex proposition, is that the executive, the people with the most authority and influence over other people’s lives, is dominated and controlled by white men.

What has this apparatus in its wisdom ponied up in response to saturation coverage of a man whose politics encourage violent men? A campaign to reinstate the womens shelters which were smashed by premier Mike Baird in New South Wales? Funding and support for women to secure safe and affordable housing for themselves and their children? A spotlight on the billions wasted on anti-terror measures when men terrorise women and children in their own homes every day of the week?

In the midst of peak violence week, Fairfax produced this headline: Leyonhjelm has ignited outrage that is years overdue. It is not a terrible article. Its author, the highly respected Stephanie Dowrick, has many good points to make. And I, too, hesitated to write about Leyonjhelm at all, given a week of exposure culminated in a week of men killing women and children at such a massively increased rate.

But this is just my own little platform and I felt strongly that the case for correlation as evidence of causation had to be made. Sometimes a blog serves the simple purpose of saying, yes, I do think these phenomena are related. I have done my homework. I do understand the arguments. And I wrote about it.

My response is both emotional and logical. I am a domestic violence survivor, and so are my three children. And? None of us should have to parade our pain to legitimise an emotional response to the levels of violence that are tolerated and enabled by white hetero-patriarchy, which cares only for its own. I am also a teacher to future lawyers on logic and critical thought, and co-authored a text book in the field. So I have extensive scholarly knowledge and extensive lived experience. This does not stop many men in multiple contexts presuming to hold greater insight than I do.

Violence is emotional, and I should not have to out myself as a survivor or tout my academic credentials to make such a straightforward ontological point. But I do, because here we are. None of us get to resign from patriarchy.

I am not here for the absurd argument that a gun-loving woman-hater started a conversation or that this is a good thing™. I am not here for the erasure implicit in the bland observation that people are talking about it now when we have been talking about it for years. I am vehemently not here to allocate credit to a vile politician, and the media who legitimised his views, with having done anything, anything at all, to assist women and children escaping from a violent man. If you think ‘police can’t do anything’ or the courts ‘hands are tied’ or that AVOs are ‘just a piece of paper’, wait until I tell you about the efficacy of the commentariat congratulating themselves for having a conversation.

If you can see the blood on all their hands, and are stuck in workplaces and social environments and conversations with people who can not, this post is for you.

 

 

 

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AND SO THIS IS ANZAC DAY

Like Valentines day and Halloween, which were non-events when I was growing up, the twenty-first century incarnation of ANZAC Day bears no resemblance whatsoever to when World War vets were alive and marching and telling interviewers that war is an unmitigated disaster of the human project that we should always, always caution against under any and all circumstances.

My memories are as clouded by time and nostalgia as the next person. Commonality of human trait is not an easy thing to pin. As a student and scholar of jurisprudence, I often examine such questions; and I tentatively offer that nostalgia, like curiosity, is a characteristic shared, if not by every individual human, then by most if not all human cultures.

From the 1970s: colour television. Seeing someone we knew on screen was a BIG deal. Nowadays it is practically impossible to not see people we know on screens, given how widespread is the smart phone as a medium. But back then the old black and white television behaved the same way as those TVs in the Mad Men scenes, vertically scrolling without anyone tapping a touch screen; fizzing and zapping and jumping at the slightest movement of an aerial or the weather.

Both my parents were born during the second world war. Each wedding photo of my grandparents shows a beautiful woman in a stunningly elaborate white gown, and a man in uniform. When my own children were born, and when I left and became a single mother, I gleaned a strength from those photos that defied how little I really knew of their lives. I would talk to my grandmothers in the car when I felt alone; or late at night when the children were asleep.

The context is not what government or politicians or media tell me ANZAC Day is about. It is the oral history passed on by my mother. It is the sure knowledge that both my grandmothers were alone with a baby, my mum and my dad, and that my grandmas knew how difficult that can be. Keeping a baby alive, keeping baby fed and clean and clothed and happy, is not easy. It is not easy in isolated circumstances, beyond our control, because of violence, like wars and domestic violence. This is how I connected to my grandmothers in those moments when I thought I might go under, and here is what they – and the existence of my mum and dad – reminded me: we are not entirely alone. Baby is a person too.

The human condition is social. The human spirit is geared for company. The baby, the child, the young person, the tween and the teen and the adult, is a person. One of the hardest lessons I learned from my children, and there are many, was the simple insistence: I am here too mum. Yes, I struggled with housing and utility bills and the uselessness of the law to ‘protect’ us hur hur and education and sport and all the responsibilities, of course I did.

But here is the thing. Not only were my kids always there, they are great company. Being around them is fun, and enlightening, and uplifting. And they had no choice. What were they supposed to do, compete in a free market of more or less terrible parents? The only adult human who could negotiate this treacherous world on their behalf is me.

When I was five and six and seven, on the 24th of April, my mum would ask if we wanted to be woken up to watch the march. A big drawcard was that we might see grandad on television.

Two memories: the ecstatic excitement, always with a tinge of doubt, as the parade passed the cameras. Was it our granddad? There he is! It’s Dee! We called my mum’s dad Dee, he was David, named for his maternal uncle who was in turn overseas in 1918, when my grandfather was born. In case he never came back, my mum would share gravely, a story passed down as families do.

And then it was Don’t Touch! Don’t put your greasy fingers on the screen! For years I thought I had uniquely greasy fingers. Many years later, when the greasy finger marks of my children obscured blindspot vision checks while driving, I came to appreciate why greasy finger marks should be discouraged. Lol.

After we watched the ANZAC Day march, and saw – or maybe saw – grandad on TV, we went about our day. Dad would tell me and my sister to pick up the dog poo and the damn bones so he could mow the lawn, a task we hated (we hated all tasks). Mum would tell us to put away the dishes, and clean our rooms (ditto). In other words, a normal day. Domestic tasks. Household chores. Family matters. A household headed by two people whose lives were irreparably shaped by the second world war, and their parents were more so, literally lived and born into it.

This is my ANZAC Day memory. This is my knowledge of what is called world war. Not the Bean or the Monash, nor the Greste or the ABC. My grandmothers are why I am here today and I pay my respects to everything they did.

*my mum’s dad his family in WWII there were 5 siblings Barbara, a WAC, her husband Colin, all the brothers Ted (Edward), Derek, David and Leonard their surname is Giblin thank you

The Aboriginal Child Placement Principle is Unenforceable at Law

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

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

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

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

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

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

The Minister and the Media

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

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

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

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

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

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

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

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

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

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

The Minister and the Law

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

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

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

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

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

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

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

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

Where are we then?

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

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

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

Politics 2017 Finale: The Bin Fire Edition

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

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

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

Yeah nah.

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

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

The Terrible Show

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

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

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

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

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

Yes Success

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

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

Responses to responses

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

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

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

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

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

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

Another by-election

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

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

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

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

MYEFO

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

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

The caravan moves on

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

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

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

Marriage equality and Joycean humility: the week that was

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

Sounds familiar, doesn’t it?

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

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

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

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

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

The bill reaches the House of Representatives

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

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

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

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

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

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

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

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

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

At last

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

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

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

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

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

 

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

The usual, thanks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So who is the target?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both claims are unsupported and unsupportable.

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

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

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

In sum, this weekend we have seen:

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

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

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

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

Hurrah! It is Section Forty-Forganza Week!

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

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

The politics of law and fact

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

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

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

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

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

Case strategy

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

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

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

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

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

Reporting politics, law, and justice

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

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

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

This is not justice.

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

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

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

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

From a crowded field, the worst Turnbull government decision yet

I got the bit about the Prime Minister feeling under siege, from the weird array of weaponry at his Monday press conference. I understood he was projecting his worst fear – losing face – by posing with gas-masked muppets. It was clear this ludicrous pantomime would crowd the Referendum Council Final Report out of the top headlines.

But I did not think Turnbull could top off that hyper-contrived clownshow inside 24 hours.

That political editors choose terror announcements over propositions for constitutional reform has nothing to do with substance and everything to do with optics. The Referendum Council news footage showed a fidgety Bill Shorten and a tremulous Malcolm Turnbull cautioning against heroic failure.

Such dullness is no competition for inflatable zodiacs and special ops commandos. But by Tuesday, that crock of nonsense was surpassed. Out trundled the Prime Minister to announce that Peter Dutton will head up a super-ministry to respond to “the evolving terror threat”. The move was widely anticipated since at least April, because Dutton is a conservative thorn in the Prime Ministerial side. It is a terrible decision. Space precludes listing everything wrong with it (Sean Kelly has helpfully enumerated many reasons), but it also highlights a broader theme.

Meritocracy mythology and government by gamesmanship.

In our system, it is absolutely routine to reward those in power for ineptitude and wrong-doing. Remember the death of Ms Dhu? Two of the police officers whose neglect killed her were promoted. Remember how we traded wheat for weapons in breach of United Nations sanctions while at war in Iraq? The responsible Minister Alexander Downer was gifted the London High Commissionership. Look at Joe Hockey, a Treasurer so innumerate he was nicknamed eleventy. Now he is our man in Washington:

Peter Dutton was voted worst ever health minister by 1100 doctors (the field includes Tony Abbott). He speculated that Lebanese Australian Muslims who migrated over forty years ago caused terror threats. The “dour and plodding former policeman” said:

“Out of the last 33 people who have been charged with terrorist-related offences in this country, 22 of those people are from second- and third-generation Lebanese-Muslim background.”

All 33 people are innocent, because they have been charged, not proven guilty. It is not surprising that a former police officer does not comprehend presumption of innocence.

Aside from this misleading and probably malicious racism, Dutton is responsible for monumental waste and cruelty. The Department of Immigration and Border Protection spends almost half-a-million dollars per off-shore asylum seeker per year. It spent over $2 billion on its off-shore detention regime without proper authority. The most recent pay-out to keep its torturous actions secret was $90 million. Even before the Home Affairs announcement, the department found $250 million for its new mega-HQ. It spent over $1 million on toy medals – more than the ADF spends on real ones.

It was the Abbott government that allocated over $400 million to set up a ‘Border Force’ incapable of running a lawful identity check. Dutton was the minister when Operation Fortitude was conceived and fell flat on its ridiculous face. He refused interviews on the grounds that the operation was an operational matter – when it was demonstrably inoperative.

All this was reported as ‘controversial’, when it was simply racist and unlawful. It was not unbelievable, or incredible. Expressions of surprise reinforce the lie that racist abuse of power is the exception, that there are serious consequences. But Quaedvlieg still has his job. Meritocracy mythology is aggressively prosecuted, but the exact opposite happens. Those with positional power who know where the bodies are buried are more likely to be promoted under government by gamesmanship.

Operation Fortitude was racist overreach of the first order, and we can expect more racist overreach from a Dutton-led Home Affairs Department. The only justification for all this – as well as for the citizenship law amendments and the embarrassing gibberish about the ‘laws of mathematics’ – is false.

“My job is to keep Australians safe” Turnbull claims endlessly, and the evidence of its falsity is on the public record.

 

Not all Australians

Turnbull does not mean his job is to keep all Australians safe. He does not mean Aboriginal people in custody. He most certainly does not mean Aboriginal children in custody. Or a black boy hunted down and killed [$] by an angry vigilante, reportedly after receiving information on the boy’s likely whereabouts from a police officer.

For 220 years, police and other armed personnel have rendered Aboriginal people unsafe. Take a recent report showing how NSW police and courts, and not crime rates, cause higher rates of incarceration of Aboriginal people. It works like this. Where an Aboriginal person breaches an AVO, police add more severe stalking offences to the charge. Bureau chief Dr Don Weatherburn suggested there could be 500 fewer Aboriginal people in jail per year but for police escalating charges. When asked why police bring more severe charges against Aboriginal people, Dr Weatherburn said “we don’t know”.

We don’t know.

Nor will the safety of Muslim women in public, a serious problem largely caused by political terror-rhetoric, be enhanced by the Homeland Affairs department. The new department will not make Muslim and other feminists who make perfectly legitimate comments online ‘more safe’. Turnbull is not talking about the safety of women and children trapped in households with a violent man. In NSW, ‘family men’ killed 192 women and children in the ten years to 2010. Nationally, men kill on average two women who were their wives or girlfriends every week. These killings are the tip of the domestic violence iceberg.

As an economist and domestic violence survivor, I note the misallocation of resources inherent to the ‘security’ spend; and am reminded how little our society cares about women and children. Governments spend billions conflating a racist and violent immigration regime with terrorism, but shut down women’s shelters.

For decades police told women that there was nothing they could do about stalking. The stalker ‘had not committed a crime’. Yet when the Lindt café siege report was handed down, NSW Police created a ‘fixated persons unit’ virtually overnight – while the years feminists spent convincing the law to take stalking seriously are used by police to send more Aboriginal people to gaol. The NSW police shot and killed an innocent bystander in the Lindt café. They were rewarded with new shoot to kill powers. Their failures prompted debate about whether the ADF should have been called in. The Prime Minister used this to beef up military call-out powers, and neutralise a factional opponent with a mega-ministry.

Politicians always seize excitedly on anything that can be passed off as evidence of an increased terror threat. This is not reward for merit. It is government by gamesmanship.

Consider this: the mega-department of Home Affairs will do nothing to address the greatest safety risks to First Peoples and Muslim women, to people of colour and all women and children. Together, these groups make up a majority of the population. And this: Peter Dutton is a ‘family man’ and former armed agent of the state. It is these two groups that pose the greatest safety threat to millions of Australians.

This post was first published by Independent Australia on Wednesday 19 July 2017

Holding ministers to account

The federal government is in a spot of legal bother. This may seem like the old cliché about the builder with the unfinished home renovation, but it isn’t. Tradies prioritise work for paying customers because it puts food on the table. The same explanation is not available to a government awash with lawyers, because its elected representatives are generously remunerated by the Australian public.

What is their excuse? Do they care? The news this week answers a few questions that regularly kick around my conversational circles. Questions like: Who or what will hold this government to account? Federal Corruption Commission? Is it getting worse? How to tell?

Here is one answer: a Supreme Court moved to speak on judicial independence, public confidence in the administration of justice, and the Rule of Law. Here is another. When a policy has cost over $9 billion in three years (2013-2016) for outcomes so catastrophic we just negotiated a $90 million settlement to 1,905 people subject to the policy… yes, something is rotten in the state.

Nobody is on trial

The first matter is a mention in Commonwealth Director of Public Prosecutions v Besim and CDPP v MHK. These are sentencing appeals before the Victorian Supreme Court. The defendants had pleaded guilty to planning to commit a crime. This act of planning has itself been made a crime, on the basis of the type of crime the person is planning to commit. Thus neither man has committed an act of terrorism, but both have terror-related convictions. Besim was sentenced to a maximum of ten years and a minimum of seven years six months. MHK, whose identity is suppressed, was sentenced to seven years with a minimum of five.

The court reserved its decision as to whether these sentences are too lenient. Before any decision was brought down, three federal ministers from Victoria – law graduates all – made comments to The Australian newspaper on the topic of judges, sentencing, and terrorism. The comments have been retracted with regret but no apology.

Health Minister Greg Hunt said ‘Comments by senior members of the Victorian courts endorsing and embracing shorter sentences for terrorism offences are deeply concerning… the state courts should not be places for ideological experiments in the face of global and local threats from Islamic extremism’.

Assistant Treasurer Michael Sukkar said ‘It’s the attitude of judges like these which has eroded any trust that remained in our legal system. Labor’s continued appointment of hard-left activist judges has come back to bite Victorians. Our judiciary should focus more on victims and the safety of our society, and less on the rights of terrorists…’

Human Service Minister Alan Tudge, who supports generating debt notices by algorithm which are known to drive welfare recipients to suicide said ‘Some of these judges are divorced from reality We have a crisis on our hands with people who want to kill indiscriminately and yet some judges seem more concerned about the terrorists than the safety of the community’.

The court wrote to the Attorney General and called on the ministers to ‘show cause’. The Ministers were not ‘hauled’ before the Court. In fact, the Ministers were not required to, and did not, face the court. Commonwealth Solicitor General Dr Stephen Donaghue QC appeared on their behalf.

The court took appearances and reserved its decision as to whether to refer the ministers for contempt. It is normally the Director of Public Prosecutions who decides whether to lay charges, using specific guidelines, like whether a reasonable jury could convict on the evidence. In the case of contempt, the court can refer the matter to the prothonotary of the Supreme Court for prosecution on grounds of sub judice or scandal.

Implications at law

This means exactly what it says. It is not complex. The legal implication is that the ministers showed contempt for the court by improperly discussing, and putting on the public record, matters which were before the court. Chief Justice Warren said in her opening remarks ‘contempt does not exist to protect judges or their reputations but the independence of the judiciary [from the political arm of government]. Its decisions bind government and citizens alike’.

Judicial independence is from the political arm of government. This is the doctrine of separation of powers. Political interference in judicial process is a breach of the doctrine, and may undermine public confidence in the administration of justice. The key mechanism for dealing with this kind of breach is contempt. Judicial decisions bind government and citizens alike: ministers are not above the law, because nobody is above the law. This is Rule of Law.

While the political leadership has skidded over this issue with glib remarks about free speech and public debate, I strongly suspect the public takes fundamental democratic and legal principle as seriously as does the judiciary and the rest of the legal profession.

The $90 million asylum seeker case did not go to trial either. It was what lawyers call an offer ‘on the courthouse steps’. As a lawyer highly experienced in these matters, Josh Bornstein writes that the Commonwealth follows

‘a predictable pattern… strongly defending them for years, driving up legal costs, and then settling just before trial. The cases do not proceed to trial because torturing refugees is unlawful and the politicians are desperate that the shroud of secrecy over the conditions in detention is not lifted.’

Most lawyers use words very carefully. The evidence of torture is in a United Nations report which found that by ‘holding asylum seekers in dangerous and violent conditions on Manus Island’, Australia is ‘systematically violating’ the Convention Against Torture.

But it was not torture that exercised the emotions of the Minister for Immigration and Border Protection. An apoplectic Peter Dutton denigrated the law firm as ‘ambulance chasers’; and furiously blamed the Labor Party for a settlement negotiated by his own administration. And the settlement is infuriating. Think how many asylum seekers could be assessed and resettled for that money.

The reason offered was that $90 million is lower than the potential total costs if the case went to trial. Because the Commonwealth does not concede any liability, it logically follows that this ‘cost-saving’ claim does not include compensation. In this hypothetical comparison, the Commonwealth spends in excess of $90 million to ‘win’ the case; and the court does not make a costs order against the ‘losers’.

Back in the real world, there are possibly alternative reasons. Maybe the Commonwealth did not have a robust defence, or did not want the evidence presented in an open court. Perhaps the Commonwealth received legal advice pointing to a large compensation payment and massive costs order against it. In this scenario, the final figure – compensation plus costs – could well be higher than $90 million. But it turns on a finding of liability against the Commonwealth, and the Commonwealth admits no liability.

These two positions – put by a Minister of the Crown in Parliament and negotiated by lawyers for the Commonwealth – can not both be true. But both are legal. This, too, is Rule of Law. Meanwhile, the Australian public pays the settlement, and the Australian public pays the salaries of Peter Dutton and Malcolm Turnbull. These men will not be held to account.

Accountability in democracy

In a class action like this, the onus is on the plaintiffs (asylum seekers) to show that harm was caused to them by the respondent (the Commonwealth). This is a microcosm of basic rules of logic. A classic example is the god debate. If I say that god exists, the onus is on me to show, using logic and evidence, that god exists. The onus is not on others to disprove a claim, that I made, without any evidence.

The principle derives from Athenian political philosophy, which penalised citizens who made speculative claims in the public domain. The idea is to disallow unsubstantiated nonsense, by holding citizens (free men, about 10% of the population) accountable for their public claims – literally statements.

All citizens had the right and the obligation to participate in the governance of the city-state. This conceptualisation of obligations as rights has largely been lost in contemporary nation states. We know at some level that the flipside to rights is responsibilities. But responsibility is regarded as somewhat onerous. This departure from the spirit of the demos comes via the class-based ‘representative democracy’ (House of Commons, House of Lords) and social contract constructed by the English.

In this model, we discharge our duty to participate by voting for a representative; and cede the right to participate in law-making to those representatives. This disaggregation of obligation-rights divides citizen from parliamentarians. But a trace of Athenian logic – the formal English word for truth and logical validity is ‘sound’ – remains in the Westminster principle of ministerial accountability.

The idea is that ultimate responsibility for executive government decisions and actions lie with the minister. There is a mechanism for upholding this principle too. It is called resignation. A sound man – should his department do things so monumentally terrible as to be condemned by the Committee Against Torture, or should his legal representatives offer a $90 million settlement rather than have those terrible things revealed in an open court; should he act in breach of so fundamental a doctrine as separation of powers, or show contempt for the Rule of Law itself; and all while a Minister of the Crown… A sound man holds himself accountable to the people, and resigns.

An edited version of this post was published on Independent Australia 21 June 2017

 

The human subjects of endometriosis research are humans with endometriosis

There are specific ethics considerations around research with human subjects. These words may – and should – conjure up images of men in white coats measuring the noses and lips of Aboriginal children, and stealing the skulls of their ancestors. Of doctors prescribing drugs to pregnant women that cause deformities over at least three generations, and not stopping when its damaging effects are fully documented. Of Henritta Lacks, and the Tuskegee Experiment. Of electric shocks administered to same-sex attracted people.

These are just a few examples of the crimes of science. Science is not infallible. It is not pure as the driven snow. The notion of purity itself is a white western christian construct, and its adherents have caused enormous harm to people all over the world. The fetishisation of science as all that is noble and good and right has a long and shameful history. Science reflects and reproduces the values of the society in which it is done. In the west, these values are sexist and racist and homophobic, ablist and anti-Semitic.

As a researcher, I am deeply vested in getting the science right, in doing research with integrity, in ensuring that human beings are not harmed by my investigations into their lives. When designing a research proposal, researchers must be cognisant of ethics clearance. Even after funding has been secured, the methodological details are submitted to an ethics committee for approval. As with any institutional process, this is an onerous bureaucratic task. It is even more so if the study is not of birds or buildings or legislation (for example), but human beings.

Research with human and animal subjects

The main ethical distinctions between animal and human subjects are these: animals can not and do not consent to participating in the research, meaning there is no voluntariness. And the purpose of research on animals is almost always to bring some benefit to humans, meaning there is no therapeutic benefit to the animal on which the scientists are carrying out their experiments. The key ethical question with respect to experimentation on animals – and I am not endorsing this priority, just describing it – centre on potential harm to the animal.

Research with human subjects has different ethical standards. Say a person was infected with Hepatitis C while in hospital for a skin graft. She takes on board this information, and despite the fact that the problem was caused in a hospital, she retains some trust in the medical profession, and reports regularly for check-ups, as per advice from her doctor. Three years later, the doctor says there is a new drug which may cure rather than manage Hepatitis C, and asks if she would like to be part of a clinical trial.

The patient hears all the advice, receives all the information, and fully comprehends voluntariness. She knows she can withdraw her consent in the trial at any time.  She signs on, and six months later is free of all symptoms. After a year, she is declared free of the disease. Two more years, and her doctor advises she need not check in for another five years. She has never felt better. The drug is released on the market. It changes lives.

This is a real case study, and the best-case scenario. It is extremely rare, but this is how ethical research with human subjects is supposed to work. The person (human subject of research) is fully informed of the risks, she fully consents and knows she can withdraw consent, and there is a high likelihood of therapeutic benefit, not just to others or society at large, but to the participant herself.

Ethics research standards

Research can be on all sorts of subjects – stormwater drains, algorithms, chemical compounds. Ethical considerations come into play when the drain or the equation or the chemistry affects humans, beyond the research environment. This is because the subject matter of ethics is human interaction, and what is good, and what is right. What is a life well lived? How should we treat other people? Do our decisions impact on future generations, on the planet? Are we integrating our ways with the world around us? This is literally the root of integrity: getting along with others in the society to which we belong.

A stormwater drain is not affected by my observation of its workings. But my interpretation of drain data is influenced by my inherent biases, my background, my prior knowledge of water and drains. Some improvement in stormwater management may result from the research, and this may benefit some humans or society in general. None of this is of any moment to a concrete pipe.

If my job is to test the potential harm of active ingredients of a cosmetic, like allergies or skin conditions, I will probably seek to do so on animals. This can and probably will cause harm to the animal; and will benefit people who later profit from sales of the product. The harm will not necessarily follow, but it is extremely likely, and predictable. The prediction is inherent to the purpose of the research, which is to test for potential harms the product may cause. The experiments are designed to extrapolate any harm caused to the animals in the study to potential impacts on humans.

So research ethics is categorised in these various ways, founded in what philosophers call objective morality. We in the west have an anthropocentric tradition, placing humans at the centre of our pursuits, at the top of a constructed hierarchy. Not all cultures do this: the Aboriginal totem system ensures that people have special responsibility for kangaroo, or frog, or whale. Other forms of Aboriginal social organisation see authority – via birthright, kinship, learning – to speak for a tract of country. From these practices, the ecologies of this continent and her islands are carefully looked after, and have been for upwards of fifty thousand years.

The western tradition, in contrast, is rigidly hierarchical and anthropocentric. Humans are sui generis – in a category (genus) of one (single). We see ourselves as at the ‘top of the food chain’. We punished those who dared to observe that the earth was not at the centre of the solar system in which we exist. The west has not thrown off legacies of pre-Copernican religiosity. Look at contemporary atheism, for example, under the ‘leadership’ of unreflectively privileged men like Richard Dawkins. There is a decidedly religious fervour to the continuing elevation and mythologizing of science.

And it does not matter how onerous the ethics approval standards are if the oversight is left to scientists to self-regulate. As any ethicist (or lawyer) could predict, ethical standards are regularly breached unless a standard-setting body – a professional organisation, the state – allocates resources to compliance and enforcement.

Not all humans

Ethics committee clearance for research with human subjects has rules around potential benefit and harm to human beings. No scholar should seek to obtain knowledge if the net result is harm to the participants. We are not stormwater pipes or algorithms or rats. The potential therapeutic benefit to human participants, as in the Hep C example, is a real consideration.

But the western tradition not only places humans at the top of a misinformed hierarchical way of seeing the natural world, but also grades humans into categories of value. It is not coincidence that the worst crimes of science are committed against black people, and gay men, and pregnant women. This is a function of the specific values of white patriarchal societies. These societies reward domination and control, aggressive competitiveness (called ‘rational self-interest’), and are incapable of seeing or changing its own violent and dishonest core.

The western canon is riddled with false dichotomies: empirical and normative methodology; science and religion; natural and positivist world views. This is because western epistemology is ontologically adversarial. It is not capable of not producing false dichotomies, because simplistic binaries are its basic cultural unit, built into its structures at every (formal) level.

This is fine when designing computer codes, or building cathedrals with as many resources as could feed all the city’s poor for a decade (okay no that is not fine, but it did happen). It is not fine when deciding who may be human subjects of which research, either. These decisions are dominated by the same demographic group who dominate the executive level in all our institutions. Unless the ethics committee is extremely vigilant (and unusually demographically diverse), the hierarchy of humanity ingrained into western culture is reproduced in research culture. It elevates straight white men and devalues the lives of all women and children, of First Peoples and people with disabilities, of Black people, of people of colour, and LGBTQI people.

A study into the sex lives of male partners of people who suffer from endometriosis

Random, you might say, unless following a story this week about a study exploring “the impact of endometriosis on men’s sexual wellbeing”. yes, that is the research topic. It is misguided at best, and very likely poorly served by the relevant ethics committee and research institution.

The parameters on any endometriosis research are determined by the condition. Endometriosis is debilitating. It is painful. There is abundant evidence that doctors minimalise and trivialise the suffering experienced by women, and girls as young as eight, that comes with endometriosis.

Women, and girls, and trans people dealing with menstruation or associated experiences in this context, are routinely disbelieved, spoken over, ignored, and dismissed by the medical profession. The effect is even more pronounced when it comes to our reproductive health. Doctors prescribe dangerous and harmful substances like DES and thalidomide for as mild and normal an experience as morning sickness (chronic all-day nausea during pregnancy is debilitating, but this is much rarer). Such practices cause trauma and hardship to millions and millions of people.  Unnecessarily medicalising experiences like menopause is a hugely profitable industry. It is we who menstruate or get pregnant or stop ovulating, yet it is white cis men who dominate the medical profession and drug industry, and are the wealthiest shareholders.

All this requires that science continuously reproduce the myths of infallibility, the idea that doctors know best. For this dominance and control over our health to be maintained, and the money to be made, we are told that we are not the experts on our own bodies and our own pain. It is ontologically impossible for a cis man to know more about period pain than anyone who has experienced period pain. Similarly, the male partners of a person who has endometriosis can not contribute more value to endometriosis research than those with the condition.

The debate that emerged this week centred on the study of men in such partnerships, and their sex lives. This is what bioethicists call a surrogate end point, which is when researchers create an artificial endpoint for the purpose of obtaining the desired result. For example, a new drug is shown to lower blood pressure, and lower blood pressure is assumed to have a preventative effect on heart disease. Yet the drug has a side-effect that increases the likelihood of heart-attack. Only the first results are tested and reported, and the drug is approved. The subsequent increase in heart attacks of those taking the drug could have been avoided, but for the surrogate end point built into the research design.

Say a bloke recruited to the man sex life endo study broke up with his girlfriend who has endometriosis. Is he still eligible to participate? Not really. The study is on men who are the heterosexual partners of women with endometriosis, and he no longer meets that description. But perhaps his experiences, no matter how vaguely recalled, would still be considered relevant? Why? So the researcher can continue the research.

A study on male partners of those who suffer from endometriosis is ontologically about endometriosis. His response, his experiences, the data he provides, are all contingent on the condition, and their partnership. The ethics clearance for this research would have weighed whether the study will benefit or dis-benefit those men (and society in general). But this is a surrogate end point. The recruitment of participants is dependent on his relationship to the person who has endometriosis. As such, the true subject of the research is endometriosis, so the true ethical question with respect to ‘human subjects of research’  is whether humans with endometriosis are likely to benefit or be harmed by the study.

Will she be better off? Probably not. Will the study cause harm to her? Quite possibly. Who among us has not told a bloke true facts endlessly, for weeks or months or years, only to find him an expert on the topic when told by another source – like, say, the University of Sydney? This is a real and likely harm. It causes anxiety, it messes with our heads.* It is a familiar and tiresomely repetitive experience, and thus can be re/traumatising. The bloke is only relevant to the study for his relationship to another person, and a condition – endometriosis – which does not exist without its human host. His relevance to the study does not either. The potential good or harm that should be taken into account by ethics committees is much wider than the recruited ‘male’ and his ‘sexual well-being’.

Additionally, the likelihood of having a partner with endometriosis is doubled among lesbian couples. Endometriosis is a prevalent and painful condition. But this study is not interested in the sex lives of lesbians. Science is sexist and science is homophobic, and no amount of manufactured sympathy for a researcher (who was not “attacked” by anyone) will change these institutionalised norms.

The defence of the researcher that I saw was not based on research ethics. Instead, most defences focused on the fact that the researcher and the endometriosis sufferer who wrote an op-ed in The Guardian are both women. The men doing this were too dense to realise that their ‘defence’ basically amounted to “Science! Cat fight! Freedom!”. None of this is the issue. Ethics in research with human subjects is what matters, and the ethical analysis shows conclusively that any potential harm to those people who suffer from endometriosis, the humans whose condition and partnership determines the eligibility of participants, should have been taken into account.

*I do not have endometriosis. I have menstruated for 35 years and counting: and have been pregnant four times and given birth three times. This gives me greater insight into the pain and experience of patriarchal medical norms with regard to reproductive health than any man who has never menstruated or given birth.