On Sunday 15 October 2017, the Wheeler Centre put on a day of ideas at Melbourne Town Hall. The first session was called Questions for the Nation.
Here’s my contribution:
“Is democracy still working?”
Donald Trump is President of the USA.
Malcolm Turnbull is Prime Minister of Australia, and the alternative PM is Bill Shorten.
This is what democracy has thrown up. Whatever happened to the idea of leadership?
Donald Trump was democratically elected. Leaving aside the complexities of the Electoral College system, it seems he was elected in accordance with the democratic principles of the United States of America.
Since his election, Trump has been an embarrassing failure.
He denies the science of climate change. As a candidate he vowed to get rid of the Environmental Protection Agency “in almost every form,”. His first budget cut the EPA’s budget by more than 30%.
Trump is famous for his use of Twitter. As long ago as 2012, he tweeted:
“The concept of global warming was invented by and for the Chinese in order to make US manufacturing non-competitive”
Meantime, in the real world the past 10 weeks have seen10 tropical storms become hurricanes: Franklin, Gert, Harvey, Irma, Jose, Katia, Lee, Maria, Nate and Ophelia.
The strength and ferocity of a hurricane is a function of the ocean temperature: as ocean temperatures rise, so hurricanes become more destructive. There is no doubt that hurricanes will be more destructive as the oceans warm.
In the past couple of months, Texas, Florida and various Caribbean islands including Puerto Rico have suffered immense damage because of hurricanes.
The people who live on Puerto Rico are American citizens. They have been without electricity and fresh water for nearly two weeks, because of Hurricane Maria. Last week, Trump got around to visiting Puerto Rico.
He spent four hours there. He visited a wealthy suburb of San Juan called Guaymabo, which had suffered very little damage. He said he “had fun” in Puerto Rico. He might not have said that if he had visited the rest of the island, where people are still dying for want of the most basic supplies which FEMA is planning to provide once all the paperwork is done.
In Washington, Trump has not achieved any legislative success. He has not delivered on any of his electoral promises.
This is due in large measure to Trump’s shameless capacity to deny facts. So he tags as “Fake News” anything that does not sit with his world view.
Malcolm Turnbull is a very intelligent man, and likeable. When he replaced Tony Abbott as PM, most Australians breathed a sigh of relief.
If he had had the political nous to go to the polls straight away, he would probably have won a substantial majority. He would have been able to hose out the hard-right.
But instead of going to the polls straight away, he dithered until his political instincts were shown to be missing in action. And now he is hostage to the hard right, with Tony Abbott sniping at him from the back bench, and Pauline Hanson calling the shots in the Senate.
The big change in the way democracies work happened 20 or 30 years ago: the science and technology of opinion polls developed dramatically. It is now possible to get an apparently accurate, representative measure of public attitudes easily and cheaply (it does not have to cost $122 million).
As this technology developed, political parties saw a way of shaping their policies so as to suit a perceived majority of the electorate. It is an interesting irony that this technology could have been, but has not been, used to find the nation’s views on marriage equality. If it had been used, the result would be more reliable statistically and would have cost thousands rather than millions of dollars. But that’s what the government does when it does not intend to be bound by the result but rather intends to leave plenty of room for the hard right to vote against same sex marriage.
In recent years, the government has been brutalising asylum seekers in ways that would appal most Australians. It has been costing us a fortune: it costs Australian taxpayers about $560,000 per refugee per year to lock them up in hellish conditions in Nauru and Manus. And the government makes it nearly impossible for us to find out what is going on. Journalists simply can’t get to Nauru. It costs $8000 for a journalist to apply for a Nauru visa. The fee is not refunded if the application is refused. The application is refused for any journalist who does not share the government’s ideology.
The public has been persuaded to accept all this by dishonest political rhetoric:
- the Coalition call boat people “illegal”. It’s a lie
- the Coalition call the exercise “border protection”, suggesting that we need to be protected from boat people. It’s a lie.
- the Coalition says the offshore processing regime is the responsibility of PNG and Nauru. It’s a lie.
- the Coalition prevent us from learning the truth about the cruelty with which innocent men, women and children are being treated. It’s a disgrace
And the same politicians who have lied to us for years about refugees have thrown $122 million at a postal plebiscite to find our views on marriage equality: a subject on which Australian views are already very clearly known. And they don’t intend to do what we want.
That’s where democracy has got us: Malcolm Turnbull panders to a party that has Pauline Hanson as its leader and (for the time being at least) Malcolm Roberts as a successful Senate candidate.
And what better can we hope for? Bill Shorten? He’s a very nice guy personally; he is intelligent and thoughtful. But he leads a party which reintroduced the Pacific Solution and made its operation even more vicious than John Howard and Philip Ruddock managed.
Look around and identify a genuine leader in politics these days. It’s a lonely search.
The mistreatment of asylum seekers is now, effectively, a bi-partisan issue. But that is true of many issues.
There was a time when you could predict, with fair accuracy, what the Labor policy on a particular issue would be, and what the Liberal policy on that same issue would be. Because the origins and inclinations of both major parties were well-known.
There was a time when politicians would say “This is what I believe. Here is why you should agree with me”.
There was a time when political leadership included the idea of leading. That idea seems to have faded away, some time in the past 20 or 30 years.
Western democracies now have leadership in the Jim Hacker mould. Jim Hacker, in Yes Prime Minister, famously said “I am their leader. I must follow them.”
There was a time when, despite Churchill’s comment, democracy worked quite well.
That time has passed.
It is easy to forget that Abraham Lincoln was a Republican. So was Richard Nixon.
It is easy to forget that Australia once had political leaders like Deakin and Menzies; Chifley and Keating.
It is also easy to forget the real point of the American Declaration of Independence. Part of the Preamble is famous, but its broader point is often overlooked. It starts like this:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
–We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. …”
This is not talking about just calling another election: it is about a fundamental change to system of government.
Democracy is not working. Short of scrapping the entire system, let’s try something novel: let’s see if we can find some politicians who are also willing to be leaders.
Never forget the lesson of Martin Niemoller.
The lesson is: when government’s misbehave, it’s just a matter of time before they will come for you.
Recently, two Australian citizens arrived back in Australia after a long overnight flight.
They had nothing to declare and filled out customs declarations accordingly. The dogs sniffed their bags, legs etc and soon lost interest.
Nevertheless the Australian Border Force people (ABF) decided to single them out for closer inspection. ABF staff were particularly unfriendly and treated them as suspects.
It was 6 am and ABF turned the Australians’ luggage inside out. They took X-rays of the luggage, but found nothing. Not surprising, as there was nothing to find.
But ABF then decided to confiscate the travellers’ iPhones, iPads and laptop computers. They kept the travellers at the airport for almost 2 hours. Finally, they said that the travellers – two Australian citizens who had just returned from a holiday – were suspected ‘people smugglers’.
ABF then confiscated the travellers’ iPhones, iPads and laptop computers “for forensic testing”. They kept them for the next ten days. Nothing was done to protect their personal, private and confidential information on their electronic devices.
During the ten days they kept the electronic devices, ABF made NO effort to contact either of the Australian citizens. Instead, the citizens had to chase ABF in an attempt to have their electric equipment returned.
Eventually the equipment was returned. The Australian travellers have not been charged with any offence (probably for the good reason that they had committed no offence). But there was no apology from ABF, and no explanation.
Just for a moment, try to imagine how it feels: You arrive back in Australia tired, the ABF men in black rummage through all your luggage and then keep your iPhone, iPad and computer for ten days. I thought that’s what happened in Police States. But with two former Queensland policemen in charge (Dutton and Quadvlieg), expect the unthinkable.
Be aware, be very aware!
And remember the words of Martin Niemoller (he is in the centre of the photograph of people taken in by the Nazis), the Lutheran pastor who was taken in for questioning by the Nazis in July 1938:
When they came for the Communists I said nothing, because I am not a Communist.
When they came for the trade unionists I said nothing, because I am not a trade unionist.
When they came for the Jews I said nothing, because I am not a Jew.
And when they came for me There was no-one to speak for me.
On 1 July 2017 I gave the inaugural Ralph Summy lecture for Ngara.
The event honoured Ralph Summy and was also the occasion of the award of the inaugural Australian Activists of the Year Awards. The winners were Murrawah Johnson and Adrian Burragubba of the Wangan and Jagalingu Traditional Owners Family Council, for their tireless work in opposing the Adani coalmine, which will destroy the traditional lands of the Wangan and Jagalingu.
NGARA: Inaugural Ralph Summy Speech: 1 July 2017
WHAT SORT OF COUNTRY ARE WE? WHAT SORT OF COUNTRY CAN WE BE?
Ralph Summy; … Two steps forward, one step back; … The Melian dialogue; … Slavery.; … The Zorg; … The American Declaration of Independence; … Dred Scott; … The Declaration of the Rights of Man; … The Universal Declaration of Human Rights; … The Trevorrow case; … Australian Values; … Conclusion
Today’s talk is given in honour of Professor Ralph Summy.
Professor Summy taught political science at the University of Queensland for more than 30 years. He established an interdisciplinary major in peace and conflict studies.
In 1971 he wrote a thesis called Australian Peace Movement 1960-67: A Study of Dissent. He wrote it for the purpose of a Master of Arts at the University of Sydney. It is an interesting thesis because it covers the history of a movement of which I was vaguely aware during my years of blind passivity. The period covered by his study begins in 1960 (when I was in Grade 6 at school, and hopefully I can be forgiven for not paying attention to what was going on) and ends in 1967, which was my first year at university and had become vaguely aware of things that were happening. The big name in political activism during the years that I remember included Jim Cairns. Jim Cairns gets numerous references in Ralph Summy’s thesis. It is easy to forget these days that the big issues back then included the nuclear arms race, the war in Vietnam and (in Australia specifically) conscription. I was acutely aware of the war in Vietnam and conscription because my birth date had come out of the ballot, by which people were chosen for conscription, and because I was a university student when I turned 18 I was able to defer my call-up until I finished my degrees. I finished at university in 1972. The Federal election that year was fought at least in part on the issue of conscription, and I was due to be called-up at the start of the following year. But Gough Whitlam won that election, and had promised during his election campaign to abolish conscription. He did so and as a result I wasn’t called up. That was a relief, of course. But it has to be conceded that I had voted against self-interest in December 1967, because I voted Liberal.
It is easy to forget that the 1966 election followed shortly after Harold Holt (who was then Australia’s Prime Minister) had said that Australia would go “all the way with LBJ”.
It is also easy to forget that Holt had been given the Prime Ministership by Sir Robert Menzies, who had begun his record run as Prime Minister of Australia in 1949 (the year I was born – I didn’t catch up with the news until a bit later) and Liberals continued to hold government in Canberra until 1972. Ralph Summy’s thesis includes the useful reminder that a Victorian SOS pamphlet included this sentence: “Why … the Menzies-Holt government committed Australian troops is because the government believes that Australia must blindly follow American policies in order to consolidate the Australian-American alliance, which the government regards as necessary to Australian security”.
The more things change, the more they remain the same.
The catchcry “all the way with LBJ” was universally recognized in Australia, although it originated in America. In March 1964, Democrat Party supporters in New Hampshire called “all the way with LBJ and RFK”. In October 1966, LBJ visited Australia and Harold Holt declared that Australia was “all the way with LBJ”. Holt had been treasurer until January 1966, when Robert Menzies stepped down as Prime Minister and handed over to Holt. Holt was sworn in as Prime Minister on Australia Day 1966. (Interestingly, his first Cabinet included Billy McMahon, John Gorton and Malcolm Fraser). LBJ’s visit to Australia was usefully timed in October 1966, because the Federal election was held in November that year.
Holt’s declaration that Australia would go “all the way with LBJ” was wildly contentious, because of course it was a direct reference to Australia’s continued involvement in the war in Vietnam. Holt disappeared in late December 1967, presumably drowned at sea near his beach-house at Portsea. So, his big issue and his death fit neatly into Ralph Summy’s thesis.
Summy’s thesis notes that the Parliamentary party of the ALP had made known in May 1966 that conscription would be a major issue in the election later that year. Arthur Calwell in a motion of dissent from the policies outlined by Harold Holt in his first statement as Prime Minister, noted as the first item “emphatic opposition to the dispatch of conscripted youths for service in Vietnam”. It is easy to forget what a contentious issue conscription and the war in Vietnam had been. It is altogether fitting that this speech is in honour of Ralph Summy, whose thesis provides such a powerful reminder of the simple truth that political activism can ultimately achieve results.
Tonight we honour Ralph Summy.
Two steps forward, one step back
Because Ralph Summy was an activist, and because the Australian Activists Award is to be presented tonight, I was asked to keep my talk largely upbeat. After all, activists should not be discouraged.
It will be no surprise to anyone here that occasionally I find it difficult to remain upbeat in my pursuit of something approximating justice for refugees in Australia. However, it is important to notice that political activism sometimes takes a while to meet its mark (for example, the activism summarized by Ralph Summy and which was in large part responsible for the end of conscription and the end of Australia’s involvement in the Vietnam War). And equally it is important to notice that various other forms of political activism have also produced striking and enduring results – results which should still be celebrated.
The cause of human rights often advances and then slips back. We are in a slippage phase at present.
My general proposition tonight is that the slippage phases should not discourage us: taken in the long sweep of history, the activists are helping humankind make progress.
The Melian dialogue
Although I am sure there are many earlier examples, it is useful to start with Thucydides’ History of the Peloponnesian Wars. The second Peloponnesian war ran from 431BC until 404BC. Athens wasn’t doing too well and decided that it needed a launching place somewhere close to Sparta. The island of Melos was an ideal candidate. But the island of Melos had never done anything to harm the Athenians and was, in all possible respects, a neutral. The Athenians sent a delegation to speak to the commissions of Melos and explained to them fairly bluntly that they were planning to take over Melos and that there was an easy way and a hard way. They acknowledged that the Melians had never done any harm to the Athenians but then pointed out that this was irrelevant “You know as well as we do” they said “that justice is only relevant between equals in power. Where power is unequal, the strong do what they will and the weak suffer what they must” (the Melians stood their ground and Athens took them over the hard way: they murdered the men and raped the women).
Although it is easy to be cynical about our conceptions of justice, the legal system still aims to achieve justice and in particular justice of a kind which does not depend on whether the antagonists are equal in power or one weak and the other strong. It may not be a perfect system, but at least its objectives have taken us some distance from the theoretical underpinnings and harsh consequences of the Melian dialogue.
Let me give another example of progress. It is easily forgotten how differently slaves were seen before the heroic and pioneering work of William Wilberforce in the late 18th and early 19th Centuries. Before Wilberforce started campaigning against slavery, slavery was common and accepted and, in some places at least, was regarded as fundamental to the continued economic prosperity of the British Commonwealth.
In 1781, a ship variously called The Zorg or The Zong (one appears to be a misreading of the other) set sail from the coast of West Africa, bound for Jamaica. The captain was Sir Luke Collingwood. As was the custom at the time, its cargo was fully insured.
The cargo comprised 470 slaves.
Because of faulty navigation and changes in the weather, supplies of food and water on the ship looked as though they might not last the distance. By the 29th November, 1781 overcrowding together with malnutrition and disease had resulted in the deaths of seven crew members and about 60 slaves. Captain Collingwood decided to throw a further 133 slaves overboard. By that extreme measure, he hoped that the remaining food and water would be sufficient for the balance of the voyage.
Perhaps not surprisingly, the case ended up in court: not on a charge of mass-murder but on an insurance claim. The insurer defended the case on the footing that the market value of the slaves had fallen below the insured value. There was no suggestion that anyone would be charged with murder. In fact, the Solicitor-General John Lee said that a master could drown slaves without any impropriety. He said: “What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder. They acted out of necessity and in the most appropriate manner for the cause. … The case is the same as if horses had been thrown overboard”.
The case of The Zorg is one which is almost inconceivable in modern times. In that simple proposition you see that we have, in fact, made some progress in our conceptions of justice. William Wilberforce was a great activist and although it took a long time he succeeded.
The American Declaration of Independence
It is easy to forget that, at least until the English Civil War, the received theory of Government was that Kings ruled by divine right and they could not safely be removed.
The English Civil War (1642-1647) was the result of growing tension between King Charles I and his Parliament but it had not been fought when the British colonized North America by establishing a settlement at Jamestown, Virginia in 1607. By 1773, the Americans had tired of being taxed by a British Government in which they had no say. Their direct expression of discontent was called the Boston Tea Party. The British Parliament had been trying to raise funds to help out the East India Company. It increased import duties by passing the Tea Act in 1773. On December 16, 1773, the so-called “sons of liberty” boarded three ships in the Boston Harbour under cover of night and threw 342 chests of tea into the harbour. This was a trigger for the American Revolution which began in 1775 and ran through until 1783. However, by July 1776, the revolutionaries had decided that the time had come to declare America’s independence from the British. On the 4th July, 1776, in congress, the 13 United States of America declared:
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s god entitlement, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its power in such form, as to then shall seem most likely to affect their safety and happiness …”
The reference to “life, liberty and the pursuit of happiness” is widely known and universally famous. But the simple explanation of the nature of government and the source of power to form government is often overlooked but was truly revolutionary.
The Declaration of Independence was a truly revolutionary act, the result of years of careful thinking and calculated activism. Even though some of the large objectives of the preamble to the Declaration of Independence have not yet been achieved, it has to be said that it was a great triumph and a step in the right direction.
When I say that not all the objectives had been achieved, I have in mind in particular the case of Dred Scott
Dred Scott was born a slave in Virginia, in 1799. He was owned by Peter Blow. The Blow family moved to St Louis, Missouri, in 1830. Missouri had been acquired in 1804 in the Louisiana purchase. It had been admitted to the Union in 1820, as a slave State, as part of the Missouri Compromise. The Missouri Compromise allowed Missouri into the Union as a slave State, but otherwise prevented the admission to the Union of slave States above 36º30’ north latitude. In effect, it guaranteed that slavery would not spread to the other States acquired in the Louisiana Purchase. It had been a hotly contested measure. Since Eli Whitney had invented the cotton gin in 1794, cotton had been a great source of wealth in the southern States, but its profitability depended on slave labour to pick the cotton.
In 1830, Blow sold Scott to Dr Emerson, an army surgeon. Emerson took Scott with him to his various postings. They spent the next 12 years in free States, principally Illinois. They returned to St Louis in 1842. Emerson died in 1846. His executors were his wife, and her brother John Sanford.
In 1846, Scott sued Mrs Emerson in the St Louis Circuit Court. In form, it was a petition for freedom, based on the fact that he had spent years in a free State, and was therefore released from slavery. A decision of the English courts (Smith v. Brown & Cooper (1705) 2 Salk 666) provided an argument that the simple fact of having spent time in a non-slave State meant that Dred Scott’s condition of slavery was dissolved
Judge Alexander Hamilton heard Scott’s case. A technicality in the evidence led to its failing. The Judge granted leave for a new trial. He won; but the decision was reversed by the Missouri Supreme Court in 1852.
By this time, Mrs Emerson had remarried. Her new husband was an abolitionist. She made over Scott to her brother and co-executor, John Sanford. Sanford lived in New York. Thus Scott was able to sue in the Federal jurisdiction, since the suit was between residents of different States. The action was for assault.
Sanford (erroneously called Sandford in the Court record) filed a plea in abatement on the basis that Scott was a slave and therefore not a citizen. Accordingly, so the argument went, there was no suit “between citizens of several States” and the Federal jurisdiction was not attracted. In other words, he sought to have the action struck out peremptorily as incompetent.
The matter was argued in December 1855, and was re-argued in 1856. Powerful interests wanted to retain the institution of slavery: American plantation owners, as well as English manufactureres and merchants. Slavery had been abolished in Britain and its Colonies by the Emancipation Act 1834, but that did not prevent English commerce from benefitting from it indirectly. Such was still the position when Roger Casement undertook his tour of investigation in the Congo Free State (1901-04), and Brazil (1906-11).
The first question in issue resolved to this: was a slave capable of being a citizen under the Constitution, so that his action against a citizen of another State would attract the Federal jurisdiction?
Chief Justice Taney and Justices Wayne, Nelson, Grier, Daniel, Campbell and Catron said that the answer to the first question was No. Taney J said:
“The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. …
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it.” (emphasis added)
The ideas expressed, and the intensity of the language used, strike the modern ear as shocking, especially in light of the introductory words of the Declaration of Independence (1776):
” … We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Taney J dealt with those words in this way:
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included … for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted …”
McLean J (dissenting) did not agree in the result on this issue, but expressed himself in language not much happier than that of Taney J:
“In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognised them as citizens, and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida …” (per McLean J at 533).
Curtis J (dissenting) found in the words of the Constitution ample authority for the proposition that a slave could be a citizen of the United States.
The second question was whether a slave could become a free man by entering a free State. The question had precedents in English case law. In 1678, it had been held that if a Negro slave came into England and was baptised, he thereupon became a free man. If he were not baptised, he remained “an infidel” and was not freed: Butts v. Penney 2 Lev 201. This rule was later relaxed: in Smith v. Brown & Cooper Holt CJ had said:
“As soon as a Negro comes into England, he becomes free: one may be a villein in England, but not a slave.”
In Somerset v. Stewart (1772) 98 ER 499, Lord Mansfield had decided on a habeas corpus application that a Virginian slave who had arrived in London must be set free. Lord Mansfield’s decision is famous for its declamatory final sentence “The black must go free”. It is less well-remembered that his Lordship had tried to avoid having to decide the matter. He had said in the course of argument:
“… a contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches … The setting 14,000 or 15,000 men at once free … by a solemn opinion, is much disagreeable in the effects it threatens … An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future …” (emphasis added)
The majority in Dred Scott’s case held that the English authorities had no application in the different constitutional framework of the American Union. Specifically, the 5th Amendment prevented the slave being freed by passing into a free State. So far as relevant it provides:
“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
To allow that a slave be freed by virtue of travelling to a free State would involve a deprivation of property without due process. It is an interesting irony that a slave owner could not be deprived of ownership of his slave without due process, but the slaves were deprived of liberty without due process. The relevant difference is that slaves were not considered “people” for Constitutional purposes.
For good measure, 6 of the 7 judges in the majority held the Missouri Compromise to be unconstitutional, as contravening the 5th Amendment. Thus they struck down the measure which had, in effect, quarantined slavery to the southern States where the cotton industry was the principal source of wealth, and slave labour was the principal engine of that industry.
The Dred Scott case [reported under the name Scott v Sandford 60 US 393] was decided by the US Supreme Court on 6 March 1857. It provoked bitter controversy. It was one of the precipitating causes of the American Civil War (1861-1865). Abolition was the great question over which the war was fought During that war, on 19 November 1863 (87 years after the Declaration of Independence) Abraham Lincoln famously re-stated the founding proposition of the American Union:
“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. …”
In so saying, he was unequivocally advancing the cause of abolition. His address at Gettysburg is regarded as a clarion call for the abolitionist cause.
The Dred Scott case resulted in the resignation of Curtis J, and blighted the reputation of Taney J. He was a decent man and a fine lawyer. He had voluntarily freed his own slaves, at great personal cost, and had 35 years earlier described slavery as “a blot on our national character”. Ironically, the decision in the Dred Scott case is generally regarded as a blot on the record of the US Supreme Court.
The decision was an exercise in strict construction which reached an unpalatable result by chaining the words of the Constitution to their historic origins. In 1992 Scalia J. – himself no bleeding-heart liberal in matters of construction – said that “ … the Court was covered with dishonour and deprived of legitimacy” by the Dred Scott decision.
On 28 July 1868, in the aftermath of the Civil War, the effect of the decision was overturned by the 14th amendment to the US Constitution.
The Declaration of the Rights of Man and the Citizen
The French Revolution started in 1789. The Declaration of the Rights of Man and the Citizen was prepared at about the same time. It is not surprising to learn that Thomas Jefferson had a hand in drafting it. It was influenced by the political philosophy of the Enlightenment and principles of human rights, as the U.S. Declaration of Independence was. Jefferson had prepared the first draft of the Declaration of Independence.
The first five articles of the Declaration are immediately recognisable as a reflection of modern thinking:
- Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
- The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
- The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.
- Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
- Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law…
For all this, it is worth noticing that these principles expressly did not apply to women or slaves. And it is worth noting that in 1791 Olympe de Gouge prepared the Declaration of the Rights of Woman. The following year she was executed by guillotine.
Two steps forward, one step back…
The Universal Declaration of Human Rights
The next giant step forward resulting from activism which I would identify did not happen until the middle of the 20th Century, although I am sure there were plenty of other significant advances between 1776 and 1948.
It is widely forgotten that anti-Semitism was common through the Western world until the end of the Second World War. Arguably, anti-Semitism hasn’t disappeared but has simply gone underground. There are clear traces of anti-Semitism in the earliest version of Magna Carta. There are clear instances of anti-Semitism in Shakespeare, notoriously in the Merchant of Venice. But the horrors of the holocaust gave anti-Semitism the bad name it always deserved.
The Second World War gave rise to a new need to protect human rights. After the war ended, it was impossible – indecent – to permit a continuation of the anti-Semitism which has disfigured many countries (including England and Australia). The holocaust showed where that line of thinking leads if left unchecked. The Universal Declaration of Human Rights in 1948 and the Refugees’ Convention in 1951 were the most prominent expressions of a new global concern to see that those who fear persecution should be protected.
The Universal Declaration (10 December 1948) was the work of a surprising activist: Eleanor Roosevelt. She was the widow of Franklin Delano Roosevelt who had died shortly before the end of the Second World War. She was also cousin to Roosevelt and had grown up in the rich surroundings of the Roosevelt family. But Eleanor Roosevelt was a genuine egalitarian and had set her heart on responding decisively to the horrors of the Second World War.
When I say Eleanor Roosevelt was a true egalitarian, it is worth remembering that from the death of FDR in 1945 until her death in 1962, Eleanor Roosevelt spent most of her time at a small property called Val-Kill in upstate New York. Val-Kill is truly remarkable in a number of ways. It is strikingly plain. It is a very simple old farmhouse. The sitting-room is furnished with very ordinary chairs and very simple bookshelves. But there are photographs on the wall one of which is a photograph of Eleanor Roosevelt having tea in that very room with John F. Kennedy. Next to the sitting-room is the dining-room. The dining-room table seats 10 or 12 people. Many great heads of state dined at that table. But Eleanor Roosevelt was always conscious of the need to have equal numbers of locals whenever she was entertaining dignitaries. And the crockery on which dinner was served had been bought at a Five and Dime store. Eleanor Roosevelt must have been a truly remarkable person. Her sense of the equality of all human beings still lives and breathes at Val-Kill.
After the end of the Second World War, Eleanor Roosevelt set her heart on creating a Universal Declaration of Human Rights. It begins as follows:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, …
As with the Declaration of Independence, some of the rhetoric goes beyond what has ultimately been achieved but it remains the case that for such a document to be universally acknowledged in the United Nations is a mark of progress to which all activists can aspire.
The Trevorrow case
The Trevorrow case happened half a world away, and 150 years later.
Bruce Trevorrow was the illegitimate son of Joe Trevorrow and Thora Lampard. He was born in November 1956. They lived at One Mile Camp, Meningie, on the Coorong. They had two other sons, Tom and George Trevorrow.
They lived at One Mile Camp because, in the 1950s, it was not lawful for an aborigine to live closer than one mile to a place of white settlement, unless they had a permit.
When Bruce was 13 months old, he got gastroenteritis. Joe didn’t have a car capable of taking Bruce to the hospital, so some neighbours from Meningie took him to the Adelaide Children’s Hospital where he was admitted on Christmas Day 1957. Hospital records show that he was diagnosed with gastroenteritis, he was treated appropriately and the gastro resolved within six or seven days. Seven days after that he was given away to a white family: Mr & Mrs Davies.
The Davies lived in suburban Adelaide. They had a daughter who was about 16 at the time. She gave evidence at the trial as a woman in her late middle age. She remembered the day clearly. Her mother had always wanted a second daughter. They had seen an advertisement in the local newspaper offering aboriginal babies for fostering. They went to the hospital and looked at a number of eligible babies and saw a cute little girl with curly hair and chose her. They took her home and, when they changed her nappy, they discovered she was a boy. That’s how Bruce Trevorrow was given away in early January, 1958.
A short time later Bruce’s mother, down at One Mile Camp Meningie, wrote to the Department asking how Bruce was doing and when he was coming home. The magnitude of her task should not be overlooked: pen and paper, envelope and stamp were not items readily obtained in the tin and sackcloth humpies of One Mile Camp, Meningie. But Thora managed to write her letter, and it still exists in the South Australian State archives. The reply is still in existence. It notes that Bruce is doing quite well but that the doctors say he is not yet well enough to come home. Bruce had been given away weeks earlier.
In South Australia in the 1950s, the laws relating to fostering required that foster mothers be assessed for suitability and that the foster child and foster home should be inspected regularly. Although the laws did not distinguish between white children and aboriginal children, the fact is that Bruce’s foster family was never checked for suitability and neither was he checked by the Department to assess his progress. He came to the attention of the Children’s Hospital again when he was three years old: he was pulling his own hair out. When he was eight or nine years old, he was seen a number of times by the Child Guidance Clinic and was diagnosed as profoundly anxious and depressed and as having no sense of his own identity.
Nothing had been done to prepare the foster family for the challenges associated with fostering a young aboriginal child. When Bruce was 10 years old, he met Thora, his natural mother, for the first time. Although the Department had previously prevented his mother from finding out where Bruce was, the law had changed in the meantime and they could no longer prevent the mother from seeing him.
The initial meeting interested Bruce and he was later to be sent down to stay with his natural family for a short holiday. When the welfare worker put him on the bus to send him down to Victor Harbour, the foster mother said that she couldn’t cope with him and did not want him back. His clothes and toys were posted on after him.
Nothing had been done to prepare Bruce or his natural family for the realities of meeting again after nine years. Things went badly. Bruce tried to walk from Victor Harbour back to Adelaide (about 80 kilometers) to find the only family he knew. He was picked up by the police and ended up spending the next six or eight years of his life in State care. By the time he left State care at age 18, he was an alcoholic. The next 30 years of his life were characteristic of someone who is profoundly depressed and who uses alcohol as a way of shielding himself from life’s realities. He had regular bouts of unemployment and a number of convictions for low-level criminal offences. Every time he was assessed by a psychiatrist, the diagnosis was the same: anxiety, profound depression, no sense of identity and no sense of belonging anywhere.
The trial had many striking features. One was the astonishing difference between Bruce – profoundly damaged, depressed and broken – and his brothers, who had not been removed. They told of growing up with Joe Trevorrow, who taught them how to track and hunt, how to use plants for medicine, how to fish. He impressed on them the need for proper schooling. They spoke of growing up in physically wretched circumstances, but loved and valued and supported. They presented as strong, resilient, resourceful people. Their arrival to give evidence at the trial was delayed because they had been overseas attending an international meeting concerning the repatriation of indigenous remains.
The second striking feature was the fact that the Government of South Australia contested every point in the case. Nothing was too small to pass unchallenged. One of their big points was to assert that removing a child from his or her parents did no harm – they even ventured to suggest that removal had been beneficial for Bruce. This contest led to one of the most significant findings in the case. Justice Gray said in his judgment:
“ I find that it was reasonably foreseeable that the separation of a 13 month old Aboriginal child from his natural mother and family and the placement of that child in a non-indigenous family for long-term fostering created real risks to the child’s health. The State through its emanations, departments and departmental officers either foresaw these risks or ought to have foreseen these risks. … ”
That finding was not only supported by evidence, it also accords with common sense. We all have an instinct that it is harmful to children to remove them from their parents. The finding was based on extensive evidence concerning the work of John Bowlby in the early 1950s, which showed that it is intrinsically harmful to remove a child from his or her parents, in particular when this occurs after nine months of age.
At the time Bruce was given away, the Aborigines Protection Board of South Australia had already been advised by the Crown Solicitor that it had no legal power to remove aboriginal children from their parents. One of the documents tendered at the trial was a letter written by the secretary of the APB in 1958. It read in part:
“… Again in confidence, for some years without legal authority, the Board have taken charge of many aboriginal children, some are placed in Aboriginal Institutions, which by the way I very much dislike, and others are placed with foster parents, all at the cost of the Board. At the present time I think there are approximately 300 children so placed. …”
After a hard-fought trial, the Judge found in Bruce’s favour, and awarded him a total of about $800,000.
There are a few things to say about this. First, Bruce’s circumstances were not unique. There are, inevitably, other aboriginal men and women who were taken in equivalent circumstances while they were children and suffered as a result. Although they may seek to vindicate their rights, the task becomes more difficult as each year passes. Evidence degrades, witnesses die, documents disappear.
Second, litigation against a Government is not for the fainthearted. Governments fight hard. It took Bruce’s case eight years to get to court, and the trial ran for some months. If he had lost the case, Bruce would have been ruined by an order to pay the Government’s legal costs.
Kevin Rudd’s Labor government was elected in late 2007. The new parliament assembled in Canberra on 13 February 2008. At that first sitting, the Government said ‘sorry’ to the stolen generations. It seemed almost too good to be true: the apology so many had waited so long to hear. And it was astonishing and uplifting to hear some of the noblest and most dignified sentiments ever uttered in that place on the hill. It is worth recalling some of the words:
“Today we honour the indigenous peoples of this land, the oldest continuing cultures in human history.
We reflect on their past mistreatment.
We reflect in particular on the mistreatment of those who were stolen generations – this blemished chapter in our nation’s history. …
We apologise for the laws and policies of successive Parliaments and Governments that have inflicted profound grief, suffering and loss on these our fellow Australians. …
For the pain, suffering and hurt of these stolen generations, their descendants and for their families left behind, we say ‘sorry’.
To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say ‘sorry’.
And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say ‘sorry’. …
We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians.
A future where this Parliament resolves that the injustices of the past must never, never happen again. …”
13 February 2008 will be remembered as a day the nation shifted, perceptibly. The apology was significant not only for marking a significant step in the process of reconciling ourselves with our past: it cast a new light on the former Howard government, which had refused to apologise to the Stolen Generations. It set a new tone. And it reminded us of something we had lost: a sense of decency.
Most of the worst aspects of the Howard years can be explained by the lack of decency which infected their approach to government. They could not acknowledge the wrong that was done to the Stolen Generations; they failed to help David Hicks when it was a moral imperative: they waited until his rescue became a political imperative; they never quite understood the wickedness of imprisoning children who were fleeing persecution; they abandoned ministerial responsibility; they attacked the courts scandalously but unblushing; they argued for the right to detain innocent people for life; they introduced laws which prevent fair trials; they bribed the impoverished Republic of Nauru to warehouse refugees for us. It seemed that they did not understand just how badly they were behaving, or perhaps they just did not care.
One of the most compelling things about the apology to the stolen generations was that it was so decent. Suddenly, a dreadful episode in our history was acknowledged for what it was. The Prime Minister’s apology makes no difference whatever to whether or not Governments face legal liability for removing aboriginal children. But it acknowledged for the first time that a great moral wrong was done, and it acknowledged the damage which that caused. The most elementary instinct for justice tells us that when harm is inflicted by acts which are morally wrong, then there is a moral, if not a legal, responsibility to answer for the damage caused. To acknowledge the wrong and the damage and to deny compensation is simply unjust.
In recent times there has been considerable discussion of the statement of Australian values which, it seems, will become inextricably linked with applications for citizenship. The statement includes the following:
“Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair-play and compassion for those in need and pursuit of the public good;
Australian society values equality of opportunity for individuals regardless of their race, religion or ethnic background …”
It would be good to see Federal parliamentarians place hand on heart and swear that these are values they embrace. The wilful mistreatment of asylum seekers sits uncomfortably with these values.
As I have been asked to be optimistic in this talk, I won’t say much about refugees, nor will I attempt to reconcile the Statement of Australian values with the facts surrounding our treatment of refugees. But let me give you an example that we might choose to follow. Just a few weeks ago I was in Jordan, investigating their treatment of refugees. Jordan is a country which faces some interesting challenges: it has Israel and Palestine on the west; Iraq on the east and Syria on the north. One way or another, this means that quite a few uninvited refugees have walked from one or other of those countries into Jordan, looking for a place of safety. In addition, Jordan has a population of only 9.6 million people and a fairly fragile economy, because it does not have any oil.
In the north of Jordan, just about five kilometres from the Syrian border, is a refugee camp called al Za’atari. The Za’atari camp presently holds about 80,000 people, all of whom arrived in Jordan as uninvited refugees. But for the fact that they arrived on foot, they would have been boat people. The Za’atari camp is an open one: people inside the camp are allowed to get jobs outside the camp and they go out each day and return each evening. The camp contains almost 2,000 shops which have been established by refugees and are run by refugees. They include not only the best falafel shop I’ve ever been to but also two shops where you can hire bridal gowns!
The 80,000 people in the Za’atari camp are just the tip of the iceberg. There are about 1 million refugees living in the community in Jordan. They are all informal refugees: that is, refugees who have simply turned up looking for protection. To put that figure in perspective: in the approximately 60 years since Australia signed the Refugees’ Convention, we have received fewer than 1 million refugees in total. Of that group, fewer than 100,000 were informal refugees. It need hardly be said that in recent years Australia has been hostile, to the point of paranoia, about informal refugees arriving here. Jordan manages informal refugees with remarkable grace, and yet it has not signed the Refugees’ Convention. In the last few years it has received far more informal refugees than we’ve received since we signed the Convention 60 years ago, but Jordan treats them well.
So, if you are an activist in relation to the interests of refugees, keep at it. Human decency will eventually find a way. Sometime, perhaps even in the near future, Australia will find that it is able to respond to refugees as generously as Jordan does.
To conclude, on the same trip that took me to Jordan I was taken to Lesbos. Lesbos is a Greek island just four kilometres off the coast of Turkey. As a result of that little accident of geography, Lesbos has received a lot of refugees who have fled through Turkey and who want to get to safety in Europe. A lot of them land on Lesbos. While I was in Lesbos, I heard a story about a beach there which, occasionally, has a big tide which washes up tens of thousands of starfish. The starfish are stranded on the beach as the tide recedes. If they stay on the sand they will dry out and perish. A little girl who lived in Mytilene, the main town on Lesbos, was very concerned about the starfish. She went down to the beach. A grown-up said to her “you can’t save them all”.
Her response was to bend down pick up one starfish, throw it into the ocean and say “well I saved that one”.
And that is my message tonight: every one of us, by seeing the difference between what is right and what is wrong, every one of us can make a difference by doing something. And if enough of us do something, we can achieve everything.
It is alarming to see the views some Australians have. On 23 May, Roger Franklin published an article in the online edition of Quadrant, in which he said it would have been better if the bomb which killed so many in Manchester had instead been detonated in the ABC studios during last Monday night’s Q & A. Specifically, he wrote:
“Life isn’t fair and death less so. What if that blast had detonated in an Ultimo TV studio? Unlike those young girls in Manchester, their lives snuffed out before they could begin, none of the panel’s likely casualties would have represented the slightest reduction in humanity’s intelligence, decency, empathy or honesty.”
Beyond that bit of foolish poison from Roger Franklin, there is a person who emails me regularly, advocating various anti-Muslim responses. For example, he advocates:
- banning all Muslims from Australia
- supporting Pauline Hanson and Donald Trump
- putting all Muslims in Concentration Camps
- strafing Muslim boat people (for the millennials, strafing means machine gunning)
More recently, he wrote this:
- (in relation to Angela Merkel): “Poor Herr Hitler must be rolling in his grave to see that Germany is being led by: (i) a women, (ii) a former Communist, (iii) who is inviting in the enemies of the Aryan race to destroy the Fatherland. This is not going to end well”
- (in relation to the Manchester bombing): “After the attack in the UK do [you] now agree Concentration Camps are the answer to protect our children from Muslims?”
- (in relation to 2 Sudanese refugees, accused of involvement in a home invasion): “How about electrocuting these bastards as well or at least putting them in concentration camps as did our former Prime Minister – Billy Hughes?”
- “the famous “Rivers of Blood” speech of Enoch Powell … must be one of the greatest speeches of our time.”
- “Human Rights are bullshit”
And he fired up about Yassmin Abdel-Magied:
“Do you recall the fate of the American William Joyce who was better known as Lord Haw Haw? Joyce promoted an evil ideology of world domination through violence using the media. Yassmin Abdel -Mageed (sic) is also promoting an evil ideology of world domination through violence using the media.
The British hung Joyce. What punishment should be given to Yassmin the Traitor?”
The trouble with stuff like this is that it gives vent to some weird inner frustration with no regard to the facts. Lord Haw Haw campaigned against Britain during the second World War and was hanged as a traitor. Yassmin Abdel-Magied quietly invited us, when we are not at war, not to forget refugees held on Manus and Nauru, and not to forget Syria and Palestine. They are things we should not forget. Maybe my frequent emailer is the real traitor, for betraying the values Australia defended during two world wars.
What people like Roger Franklin (and my frequent emailer) do not seem to understand is that their rabid views are just as dangerous as the views of Islamic extremists and other madmen. Dangerous because, by inciting hatred against all Muslims, they run a very clear risk of radicalising some Muslims who (understandably) feel that they are not welcome in our community, even if they have never said or done anything which could be a threat to any of us. Radicalising young people is a foolish and dangerous thing to do: it creates the very risk Roger Franklin (and my frequent emailer) are so upset about.
Incidentally, Roger Franklin was very rude about Lawrence Krauss, who was on the Q & A panel which Franklin would have liked to see bombed. What Franklin wrote was this:
“A smug stick insect and tireless self-promoter, fellow guest Lawrence Krauss, the warmist shill who has the gall to present himself as a man of science, couldn’t resist the temptation to demonstrate a nuanced acuity. Below are his actual words, reproduced verbatim. Try not to throw up.
You’re more likely to be killed by a refrigerator, in the United States, falling on you.
If you need to read this loathsome creature’s glib sophistry once more, just to grasp the full breadth of its breathtaking brazenness, brace yourself and do so.
Tumbling refrigerators are a bigger hazard than Islamic terrorism? God Almighty but that Krauss is a filthy liar.”
Let’s put to one side that Franklin did not understand Krauss’ point. The simple fact is that dying in a terrorist event is a very unlikely way of dying. I am not trivialising it: it is a terrible thing. But here are the statistics:
The piece below was written by Mem Fox, the much-loved Australian children’s author. It details the shocking treatment she received when she tried to enter USA recently.
It is important to remember that, if you give people great power, they will use it. And some will misuse it. Read this piece and imagine being a hapless traveller to gulag America. Imagine being a boat person stranded in Nauru or Manus. .
I was pulled out of line in the immigration queue at Los Angeles airport as I came in to the USA. Not because I was Mem Fox the writer – nobody knew that – I was just a normal person like anybody else. They thought I was working in the States and that I had come in on the wrong visa. I was receiving an honorarium for delivering an opening keynote at a literacy conference, and because my expenses were being paid, they said: “You need to answer further questions.” So I was taken into this holding room with about 20 other people and kept there for an hour and 40 minutes, and for 15 minutes I was interrogated. The belligerence and violence of it was really terrifying The room was like a waiting room in a hospital but a bit more grim than that.
There was a notice on the wall that was far too small, saying no cellphones allowed, and anybody who did use a cellphone had someone stand in front of them and yell: “Don’t use that phone!” Everything was yelled, and everything was public, and this was the most awful thing, I heard things happening in that room happening to other people that made me ashamed to be human. There was an Iranian woman in a wheelchair, she was about 80, wearing a little mauve cardigan, and they were yelling at her – “Arabic? Arabic?”. They screamed at her “ARABIC?” at the top of their voices, and finally she intuited what they wanted and I heard her say “Farsi”. And I thought heaven help her, she’s Iranian, what’s going to happen? There was a woman from Taiwan, being yelled at about at about how she made her money, but she didn’t understand the question. The officer was yelling at her: “Where does your money come from, does it grow on trees? Does it fall from the sky?” It was awful.
There was no toilet, no water, and there was this woman with a baby. If I had been holed up in that room with a pouch on my chest, and a baby crying, or needing to be fed, oh God … the agony I was surrounded by in that room was like a razor blade across my heart. When I was called to be interviewed I was rereading a novel from 40 years ago – thank God I had a novel. It was The Red and the Black by Stendhal – a 19th century novel keeps you quiet on a long flight, and is great in a crisis – and I was buried in it and didn’t hear my name called. And a woman in front of me said: “They are calling for Fox.” I didn’t know which booth to go to, then suddenly there was a man in front of me, heaving with weaponry, standing with his legs apart yelling: “No, not there, here!” I apologised politely and said I’d been buried in my book and he said: “What do you expect me to do, stand here while you finish it?” – very loudly and with shocking insolence.
The way I was interviewed was monstrous. If only they had been able to look into my suitcase and see my books. The irony! I had a copy of my new book I’m Australian, Too – it’s about immigration and welcoming people to live in a happy country. I am all about inclusivity, humanity and the oneness of the humans of the world; it’s the theme of my life. I also had a copy of my book Ten Little Fingers and Ten Little Toes. I told him I had all these inclusive books of mine in my bag, and he yelled at me: “I can read!” He was less than half my age – I don’t look 70 but I don’t look 60 either, I’m an older woman – and I was standing the whole time. The belligerence and violence of it was really terrifying. I had to hold the heel of my right hand to my heart to stop it beating so hard. They were not apologetic at any point. When they discovered that one of Australia’s official gifts to Prince George was Ten Little Fingers and Ten Little Toes, he held out his hand and said: “It’s been a pleasure to meet you, Ms Fox.” I was close to collapse, very close to fainting, and this nearly broke me – it was the creepiest thing of all. I had been upright, dignified, cool and polite, and this was so cruelly unexpected, so appalling, that he should say it was a pleasure. It couldn’t have been a pleasure for him to treat me like that, unless he was a psychopath. In that moment I loathed America. I loathed the entire country. And it was my 117th visit to the country so I know that most people are very generous and warm-hearted. They have been wonderful to me over the years. I got over that hatred within a day or two. But this is not the way to win friends, to do this to someone who is Australian when we have supported them in every damn war. It’s absolutely outrageous. Later in the hotel room I was shaking like a leaf. I rang my friend, my American editor and bawled and bawled, and she told me to write it all down, and I wrote for two hours. I fell asleep thinking I would sleep for eight hours but I woke up an hour and a half later just sobbing. I had been sobbing in my sleep. It was very traumatic.
After I got back to Australia I had an apology from the American embassy. I was very impressed, they were very comforting, and I’ve had so many messages of support from Americans and American authors. I am a human being, so I do understand that these people might not be well-trained, but they now have carte blanche to be as horrible and belligerent as they want. They’ve gone mad – they’ve got all the power that they want but they don’t have the training. They made me feel like such a crushed, mashed, hopeless old lady and I am a feisty, strong, articulated English speaker. I kept thinking that if this were happening to me, a person who is white, articulate, educated and fluent in English, what on earth is happening to people who don’t have my power? That’s the heartbreak of it. Remember, I wasn’t pulled out because I’m some kind of revolutionary activist, but my God, I am now. I am on the frontline. If we don’t stand up and shout, good sense and good will not prevail, and my voice will be one of the loudest. That’s what it has taught me. I thought I was an activist before, but this has turned me into a revolutionary. I’m not letting it happen here. Instead of crying and being sad and sitting on a couch, I am going to write to politicians. I am going to call. I am going to write to newspapers. I am going to get on the radio. I will not be quiet.
No more passive behaviour. Hear me roar.
It is blindingly obvious that something is seriously wrong with politics at present. In the West, at least.
Barry Jones wrote a great piece on that theme for The Saturday Paper. The article included the following observations:
“Lincoln’s views, published on broadsheets, were extremely subtle and nuanced, without bitterness, personal attack or exaggeration. He could always see the other side of an argument and often set it out, fairly. … In 2016, 156 years later, Donald Trump won the Presidential nomination of Lincoln’s Party. … Lincoln was reflective, self-doubting…Trump is unreflective, posturing in a way that may conceal deep insecurity, narcissistic, always personalising issues (the hero v. the devil), talking – shouting, really – in slogans, endlessly repeated with no evidentiary base. He appeals to fear, anger, envy and conspiracy theories. …”
Here is the full article. It should be compulsory reading in Canberra: Trumpism-Barry Jones
12 September 1683 is the date on which the Ottoman siege of Vienna ended.
In 1683, Vienna was struggling to survive a siege by the Ottoman Turks. A Pole named Kolscitzky, who was learned in Turkish, came to their rescue. He escaped through enemy lines to reach the Duke of Lorraine, who hurried to relieve the city. The Turks were repelled and Vienna was saved. Kolscitzky became very popular and famous. He persuaded a baker to produce a sweet bread roll in celebration of Vienna’s victory over the Turks. It was shaped like the crescent on the Turkish flag. We call them croissants because at some point the French took ownership of this Polish-Austrian idea.
Although croissant and crusade are similar words, they are not etymologically related, but there is a connection between them. While croissade-crusade came from Latin crux (French croix), croissant is French for crescent.
The crescent which the croissant imitates refers originally to the new moon as it grows towards the first quarter: the word comes from the Latin crescere to grow (from which we also get crescendo, and increase). As a new moon grows it is a waxing crescent moon (a tautology); after the first quarter it is waxing gibbous (from the Latin for hump) and then full. As the full moon declines, it is waning gibbous, then after the last quarter it is waning crescent (a contradiction in terms).
During his perilous journey, Kolscitzky had learned how to make coffee. After the siege ended, he came by a sack of coffee beans abandoned by the retreating Turks. He was the only person in Vienna who knew what coffee beans were for. He opened a café which quickly became famous for the drink and popular for its croissants. He served the coffee with milk and honey, a precursor of the style now known as Vienna coffee. Although the French stole the croissant, they had the good sense to leave Vienna coffee to the Viennese.
Helen Razer posted a piece on her Facebook page in which she criticised some Islamophobes as “racist”. They corrected her: Islam is not a race.
She wrote them an apology. When I had finished reading it, I wished I had written it myself. It is an incredibly good piece of writing.
To save some people the effort of writing to set me straight, let me make it clear: I deplore Islamic extremism; I deplore extremism of any kind, supposedly in support of any ideology; I deplore terrorist attacks, especially ones which kill innocent civilians; I deplore people who speak or act as if all Muslims were extremists.
With Helen Razer’s permission, here is her apology. I recommend you read it out loud to someone dear to you:
THIS IS AN APOLOGY. In a post earlier today that linked to an article written by me I incorrectly identified those who disdain Islam as “racist”. I am sorry about this. As you so deftly and cleverly remind me, “Islam is not a race”. You are, therefore, not a racist.
I didn’t mean to call you a racist.
I meant to call you – how can I put this? – history’s worst reflex.
I meant to call you the frail and fearful idiot who learned nothing of the lessons of 1933.
I meant to call you the descendent of Nazism.
I meant, much more kindly, to say that your belief that a little cultural difference is responsible for all the shit in your life is a product of an under-informed mind and an ugly spirit.
I meant to say that I recognise those of you suddenly saying “Well, what about the way they treat gays?” as the same scum who used to beat me up at high school for being a –w what was it you called me? – an “ugly dyke not worth raping”.
I meant to say that you should remember Dachau, Belsen and all the other places in which human lives were sacrificed on the altar built on the foundation of your puny, disgusting hate.
I meant to say that I know your stench: it has offended my nostrils for a lifetime.
I meant to say that if you think Islam is intrinsically evil and you’ve somehow missed that the real “evil” in the world is belched from its financial centres, fuck you very much and you just keep on agreeing with Brave Intellectuals like Sonia Kruger and Andrew Bolt.
I meant to say that you do not need to love people. You do not even need to approve. You just need to fucking accept difference as an inevitable fact of life: but you never will, because you are made by off-cuts of history’s worst mistakes.
I meant to say you have nothing to say to me that I cannot read in the nation’s worst newspapers.
I meant to say you are a receptacle for the ideological shit of powerful others.
I meant to say you sicken me.
But I didn’t mean to call you a racist.
Helen Razer writes for The Daily Review
Pauline Hanson and Sam Dastyari had some interesting exchanges on Q & A on Monday 18 July 2016.
Dastyari pointed out that Hanson has, in the past, expressed strident views against Aborigines, then against Asians, and more recently against Muslims. She wants to stop Muslims coming to Australia. She wanted to stop Asians coming to Australia. She could hardly have objected to Aborigines being in Australia, so she advocated instead for the abolition of special government assistance for them; the abolition of native title and the abolition of ATSIC.
One of the oddest exchanges between Hanson and Dastyari on Q & A went like this:
Dastyari: “When I look at Ms Hanson’s policy document that says we should be banning Muslims from coming to this country, I have to ask: does that mean that a five-year-old Sam Dastyari should never have been able to set foot in Australia, because somewhere in Tehran there’s a document that says beside my name the word ‘Muslim’, because of where I was born?”
Hanson: “Are you a Muslim?…Really?” … “You’re a practising Muslim? This is quite interesting,… I’m surprised. I did not know that about you.”
What is odd about this is that on 2 July, the night of the Federal election, when Hanson was being interviewed on Channel Seven, Dastyari offered to take her out for a Halal Snack Pack. That invitation, coupled with the widely known fact that Dastyari is originally from Iran, would lead any moderately intelligent person to conclude that Dastyari is Muslim. but Hanson seemed genuinely surprised on Monday night, in the exchange quoted above.
Perhaps her real point concerned whether he was a practising Muslim. But if that was her point she would have to refine her call for Muslims to be prevented from coming to Australia. But her comments on Muslims seem much broader than whether a Muslim is a practising Muslim. Here are some of her (false) claims about Muslims.
Here is the Guardian’s article about the Q & A episode: https://www.theguardian.com/australia-news/2016/jul/18/pauline-hanson-and-sam-dastyari-clash-over-islam-on-abcs-qa?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today+AUS+v1+-+AUS+morning+mail+callout&utm_term=182252&subid=7875396&CMP=ema_632
It s hard to know what is more disturbing: the fact that someone with Hanson’s strident bigotry has a strong presence in the Senate or that someone with such luke-warm intelligence has a strong presence in the Senate.
Yes: the Eureka Stockade, 1854, was a terrorist event by our contemporary legal standards. The current definition of “terrorist act” is set out below. It’s complex, but the bottom line is this: if an ordinary criminal act of damage to property or person is carried out in order to intimidate the government or the public, it is a terrorist act. The Eureka Stockade involved fairly serious criminal conduct: 30 people were killed. and it was explicitly for political purposes: they wanted to force the Victorian government to allow miners (who paid high mining licence fees) to vote. Their sentiment was part of the idea expressed 81 years earlier in America: the Boston tea party of 1773 and then the American war of independence were clear expressions of the sentiment: no taxation without representation.
The leaders were charged with high treason, but they were acquitted. this was generally regarded as an expression of public sympathy for their cause. One of them, Peter Lalor went on to be Speaker of the Victorian Legislative Council (upper House) in 1880.
The diggers swore an oath on 30 November 1854: ‘We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties’
The Commonwealth Criminal Code Act (1995) defines”terrorist act” in section 100.1. You can see the full version here. Here is an abbreviated version:
“terrorist act means an action where:
(a) the action falls within subsection (2)…; and
(b) the action is done with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or …”
However it will not be a terrorist act if it falls within sub-section 3:
“(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or …”
It is a nice historical irony that another icon of Australian history is also bound up in terrorism. Ian Jones, the foremost authority on Ned Kelly, says Kelly’s activities in North-East Victoria had the ultimate objective of establishing a separate colony in that area. Kelly’s Jerilderie Letter adds credence to that suggestion. If his objective was a political one, then his murderous exploits fit him neatly into the modern legal definition of a terrorist.
Sonia Kruger went full Trump on morning television today.
A colleague of mine contacted Channel 9 and made a few points about her experience of Islam. Here are some of the points she made:
-As a refugee rights advocate, around half my friends came here by boat. Most of them are Muslim, or from a Muslim background.
-I have attended a Mosque, and worn a hijab by choice; I actually decided never to do it again because of the way I was treated in my local shopping centre when my head was covered because I was on my way to the Mosque. I did not feel safe, and I’m not a person who scares easily.
-Never have I been disrespected by any of my Islamic friends for not being of Islamic faith, or for engaging in practices considered ‘Haram’ ie forbidden and unholy. (Trust me, I am the worst. Nobody has ever said a word about this.)
-Never have I heard anything other than condemnation from them about terror attacks practised in the name of Islam.
-Every single time somebody is given a platform to condemn the Islamic faith on national television in Australia, it has an impact on my friends, because then Aussies think it’s a good idea to racially abuse women wearing hijabs on trains-in the street-in the shops, for some reason. This is a problem we as a friendship group have almost exclusively with the 9 network.
-I am perfectly safe in Parramatta and Blacktown, where a large proportion of the population is Muslim, but I had to quit my job in my (extremely Caucasian) hometown due to sexual harassment on the way to and from work from Aussies in utes – men who are visibly not from Islamic backgrounds. I wish I was joking. Sadly, I’m not. I also had to quit jogging with my daughter when she was in her pram for the same reason. Again, a huge proportion of the people (including men) I associate with, and spend time around, are of Islamic faith. Never once have I had even a moment where I felt unsafe around any of them.
So there you have it: most Muslims are polite and respectful. Many Aussies are not. A tiny percentage of Muslims are extremists: and a tiny percentage of Christians, Hindus, Sikhs, Bhuddists etc are extremists. It is extremists we should fear.
And hate-mongers like Sonya Kruger and Pauline Hanson.
Senator Pauline Hanson must be grateful to Senator Brandis. He declared that every one has the right to be a bigot.
Pauline Hanson is a bigot, and she revels in it. Her bigotry is accompanied by ignorance, which makes her public utterances ugly and dangerous, because bigotry is as contagious as the plague.
Pauline Hanson has made inflammatory statements about Islam: statements which were not only offensive but also plain wrong. Here is a brief summary of some of the things she has said about Islam FactCheckHanson
And here is a link to a detailed fact check.
It is easy to discount Pauline Hanson as a joke: but a lot of people are not laughing: they are lapping up all her anti-Islamic sentiments because they need an easy hate-target. We have seen the same phenomenon before. It is always ugly, and it always turns out badly.
And just in case you are wondering: I am not a Muslim; I do not adhere to any religious tradition. I think that some of the conspicuous Christians in our Parliament (Abbott, Morrison, Turnbull …) have grotesquely distorted ideas of Christian doctrine, and have betrayed the religion they profess to observe). Likewise, Muslim extremists debase the religion they claim to observe. I am opposed to all extremism, whether it is based on religious or political or other ideology.
The Guardian Australia today published the views of a panel on the effect of the election on various aspect of Australian life. I was asked to contribute a bit about refugees.
The whole Guardian article is here. My bit is set out below:
So far, the election result is too close to call with much confidence.
For refugees, it hardly matters which major party wins government, since both have struggled to keep their policies as close as possible. The Coalition policy calls the exercise “border protection”. Labor said it would “stand firm on maintaining a policy of offshore processing”, while claiming that it would be humane and compassionate to the innocent people it would lock up.
It looks as though the balance of power will not be held by the Greens, but by Pauline Hanson (whose attitude to refugees makes Nigel Farage look tolerant) and Nick Xenophon (who still needs to understand that calling boat people” illegal” is a lie).
Offshore processing and intentional cruelty seem likely to remain.
This means that no-one seeking protection who gets to Australia will be allowed to settle in Australia. They will be taken, by force and against their will, to PNG or Nauru. Their claim for asylum will be processed there (at Australia’s expense) but those found to be refugees will not be allowed to come to Australia. Where they would be resettled is anyone’s guess. How long they will be left on Manus or Nauru is anyone’s guess.
I expect a Liberal win by a narrow margin. For several months I have been predicting the Liberal party room is likely to replace Turnbull with Scott Morrison. Morrison’s track record for lying about boat people, and his strangely un-Christian attitude to them, means that the future for boat people (and this country) looks very bleak.
There is an interesting discussion on the ABC about the correct way to pronounce the name of “H”, the 8th letter of the English alphabet. It is a long-running debate. I recall that, as a child, I was told firmly that I should say ” aitch” not “haitch”. The debate is much older than I am.
“I am told on good authority that in schools of a certain denomination, and in those schools only, it is pronounced invariably as haitch, an oddity I cannot explain” (Arnold Wall The Queen’s English, 1958). Perhaps it would be more accurate to say that the pronunciation aitch is hard to explain. The pronunciation of the letter H is one of Australia’s great social shibboleths: not just the way it is sounded as the first letter of a word, but more particularly the way the name of the letter itself is said. Some people say haitch, others call it aitch.
Although the spirit of our times is generous, forgiving and tolerant, the choice between aitch and haitch can cause a good deal of anxiety and even hostility. Generally speaking, haitch is used by those educated in that part of the Roman Catholic system which traces its origins to Ireland. Aitch is preferred by the rest. Some apostates deny their origins by abandoning haitch; but there is little traffic in the other direction. When I was a child, I was forbidden to say haitch; friends who said haitch were appalled that I ate meat on Fridays.
It is not at all surprising the issue is so confused, since the pronunciation of h, when used as the initial letter of a word, has changed significantly over the past couple of millenia.
Although nothing much is certain in matters of language these days, the prevailing view, perhaps illigocally, supports the pronunciation aitch. The Oxford English Dictionary gives it thus, and does not recognise haitch as an alternative. I say this is illogical, because it might be expected that the name of a letter of the alphabet would give a clue about the sound normally associated with it. In this matter, h, w and y stand isolated from the rest of the alphabet, although the names of c, e and g represent only the lesser part of the work done by those letters.
The issue is manifested in at least 3 ways: how is the name of the letter to be said; is the h sounded or not before a vowel; does a word beginning with h accept a or an as the indefinite article?
The sound represented by H was known in the Semitic, Greek and Latin alphabets. In the Semitic it was a laryngeal or guttural aspirate, and remained so in the Greek and Latin. It passed from the Latin into the Germanic languages as a simple aspirate, that is, the sounded breath. It has been variously called ha, ahha, ache, acca, and accha. These earlier forms of the name explain the current form, and are clearly referrable to the sound represented.
In late Latin, and in early Italian and French, the aspirate gradually ceased to be sounded. In Italian, the h was progressively dropped in the written form of words, so that it is now absent from words which, in the French, retain it without sounding it: eretico (hérétique); istorio (histoire); oribile (horrible); osteria (hôtel).
In Anglo-Saxon speech, h was always sounded, but since the Norman conquest, the English pronunciation of words with an initial h gradually adopted the French manner: the english language has always been something of a trollop, pursuing advantage where it can. So for hundreds of years, the h was seen but not heard in “proper” speech, at least in words which derive from the romance languages.
If the initial h of a noun or adjective is not sounded, then the word naturally takes the indefinite article an. At least from the 11th century then, it was natural to refer to an (h)istory, an (h)otel, an (h)our, an (h)onourable woman, an (h)umble person. The ambivalence of usage survives in words like hostler/ostler.
However, from the 18th century on, English usage began once more to aspirate the initial h. This coincides with the arrival of the Hanoverian monarchs, whose native language had always sounded the h. Thus words which had come into English via French began to be said with aspirated h’s, although the change was gradual and patchy. Published in 1828, Walker’s Dictionary says that h is always sounded except in heir, heiress, honest, honesty, honour, honourable, herb, herbage, hospital, hostler, hour, humble, humour, humorous, & humorsome. Since that time, those underlined have also changed, but in the USA herb is still said with a silent h. Abominable was originally abhominable at least from Wyclif’s time, and was explained as deriving from ab homine. It lost its h in pronunciation and then in spelling, and remained unaffected by shift in the wake of the Hanoverian kings.
One of the oddest anomalies of this process is habitué, which is an unassimilated French word but which is generally spoken with a sounded h. By contrast, an (h)abitual liar is commonly said with a silent h, although it would be odd not to sound the h in habit. Homage is likewise anomalous
As the shift back to aspirating the h was slow and illogical, it is not surprising that it provoked uncertainty in the choice of indefinite article. The choice is made the more difficult by a dread of dropping an aitch, which in many circles is a shocking thing if done incorrectly. The unhappy result is such usages as: an hotel, an historic occasion, an hypothesis, an heroic effort, an hysterical outburst, &c. If the h is sounded, the result is silly and indefensible.
The rule is simple enough: a word which begins with a vowel sound takes an; a word which begins with a consonant sound takes a. So, an honest person, an hour, an heir, an unusual event &c.; a hypothetical case, a historic occasion (but colloquially an ‘istoric occasion), a useful suggestion, &c. Before initials, the choice of article depends on the way the name of the letter is sounded: a UN resolution; an S-bend, an HB pencil, an X-rated film, an MP. But if the collection of letters is a recognized acronym, then the choice of article depends on how the acronym is said: a UNICEF official, an UNCITRAL official; a NATO resolution, a SALT meeting, a HoJo restaurant.
Since the publication of my article about the word fuck, I have received many comments, mostly complimentary. That article attracted far more comment than any other I have written, which shows where the market is! Readers will remember that I identified subagitate as the only polite word in the English language which has as its primary meaning have sexual intercourse.
However, correction comes from the least expected quarter: Robin Brett QC drew to my attention to the OED entry for swive, which reads as follows:
“swive, v. Obs. or arch.
- trans. To have sexual connexion with, copulate with (a female). …
- intr. To copulate…”
I had always believed, without checking it, that swive was a slang word. In fact it is a sturdy Old English word, related to the Old High German sweib (meaning sweep or swing). But for the fact that (apparently) its primary meaning is not gender neutral, it deserves to be ranked alongside subagitate.
Chaucer used it in The Miller’s Tale, The Reeve’s Tale and also in The Manciple’s Tale:
For all your watching, bleared is your bright eye
By one of small repute, as well is known,
Not worth, when I compare it with your own,
The value of a gnat, as I may thrive.
For on your bed your wife I saw him swive.”
Chaucer’s use of the word may not be enough to ensure its respectability. Later in The Manciple’s Tale, the episode above is referred to again:
Masters, by this example, I do pray
You will beware and heed what I shall say:
Never tell any man, through all your life,
How that another man has humped his wife;
He’ll hate you mortally, and that’s certain.
On balance, it may still be advisable to prefer subagitate in genteel company, where clarity of meaning is traditionally subordinated to elegance. But swive is justifiable on historical grounds, and hump will not cause too many problems, as long as you sound the h.
Recently, Immigration Minister Peter Dutton said that “They won’t be numerate or literate … They would languish on unemployment … These people will be taking Australian jobs.” (The Sydney Morning Herald, May 18 2016). He said this in an attempt to make his deliberately cruel treatment of boat people seem vaguely respectable.
But in saying that he unwittingly created what might be called Schrödinger’s Refugees, by postulating that refugees would both languish on unemployment and take Australian jobs,.
Schrödinger’s cat is an idea from the strange realm of quantum physics. Here’s what Wikipedia says:
Schrödinger’s cat is a thought experiment devised by Austrian physicist Erwin Schrödinger in 1935. It illustrates what Schrödinger saw as the problem of the Copenhagen interpretation of quantum mechanics applied to everyday objects. The scenario presents a cat that may be simultaneously both alive and dead, a state known as a quantum superposition, as a result of being linked to a random subatomic event that may or may not occur. (courtesy of Wikipedia, the free encyclopedia)
In any debate about evolution or existential threats to the survival of the human species we are inclined to under-estimate the time-frame of the Universe.
Most people know that the Big Bang was about 13.8 billion years ago. But that’s such a long time that it is hard to give it full weight.
Wikipedia has a Cosmic Calendar (it’s not as “hippy-trippy”as it sounds. It was popularized by Carl Sagan). It compresses the history of the Universe, from the big Bang to the present, into 12 months. You can see it here.
What is truly remarkable is to recognise that, if you take the Big Bang as 1 January and the present as midnight on 31 December, life on earth did not emerge until November. And that was just pond-slime. Dinosaurs appear on 25 December and disappear on 30 December: they survived 130 million years. Homo Sapiens emerges about 6 minutes before midnight on 31 December.
Think about it: if dinosaurs existed for 5 days; we have existed for 6 minutes, and agriculture began just 21 seconds ago. On the same scale, Christ was born about 5 seconds ago.
Those of us who grew up in one of the Abrahamic religions (Judaism, Christianity, Islam) are taught that the Creation took 6 days. Here’s how the days went:
Day 1: “Let there be light”
Day 2: “Let there be a vault between the waters to separate water from water.” (The sky)
Day 3: “Let the water under the sky be gathered to one place, and let dry ground appear. … Let the land produce vegetation”
Day 4: “Let there be lights in the vault of the sky to separate the day from the night…”(The Sun and the Moon)
Day 5: “Let the water teem with living creatures, and let birds fly above the earth across the vault of the sky.”
Day 6: “Let us make mankind in our image, in our likeness, so that they may rule over the fish in the sea and the birds in the sky, over the livestock and all the wild animals…”
So we grow up with the idea that we have been here from close to the beginning, that we are made in God’s image, and that we are in charge.
In the 17th century, Bishop Ussher of Armagh added up all the events recorded in the King James version of the Bible, and calculated that the creation happened on 23 October 4004 BC. As it happens, that is about 8 seconds before midnight on 31 December.
Taking the most generous view of the Creation story in Genesis, human beings emerged on the last of the 6 days of Creation. If you divide the actual history of the Universe into 6 parts, the last day stretches back a bit more than 2,000,000,000 (2 billion) years. But Homo Sapiens emerged about 200,000 years ago.
But these details do not matter much: the Creation story has us believing we were here from the start, and it’s not too bold to reckon we will be here to the end. After being around for 130 million years, dinosaurs probably thought something similar (if they thought at all).
We should step back and ask whether our place on this planet is as secure as we think. Maybe we need to take better care of it.
A brief account of australia’s offshore detention regime
Accomodation for refugees
Detention, australian style
Poetry: get angry, by oliver hovenden
Refugee resettlement: getting the facts straight
Myki: it just keeps getting worse…
And another myki outrage. This is beyond beyond…
More outrages on the flawed myki system in melbourne
The border force hits town: operation fortitude
The impact of cuts to art funding
Serco and border force bring cruelty to new levels
Wind Farm Music Dedicated To Tony Abbott
Year 12 student taken from school and put in detention
Detainees in Manus Island face grim prospects
More letters returned from Manus Island
Write to federal MPs about refugee policy
Speech to Labor national conference
Australia: becoming a pariah on climate change
Analysis of Border Force Act by George Newhouse
More letters to elected representatives, but…how disappointing they are
A brief account of Australias offshore detention regime
There is an astonishing number of proverbs and aphorisms which use apples as their key ingredient. A small selection of the best known would include:
- Don’t upset the apple cart.
- An apple a day keeps the doctor away.
- One bad apple spoils the bunch.
- Adam ate the apple, and our teeth still ache.
- An apple never falls far from the tree.
- Don’t upset the apple cart.
- As sure as God made little apples.
- She’s the apple of my eye
- Apples ain’t apples.
It is hard to know why it is that apples have insinuated themselves so far into our language.
A Biblical connection is the likely explanation. It is commonly thought that, consigned to the Garden of Eden, Adam and Eve misbehaved by eating an apple from The Tree of Knowledge.
However that may be, the Bible offers no support at all for the idea that the Tree of Knowledge was an apple tree. The King James version of the Bible has only a few references to apples. They are mostly the metaphorical “apple of the eye”. So, taking them in the order of their appearance, we find:
10 He found him in a desert land, and in the waste howling wilderness; he led him about, he instructed him, he kept him as the apple of his eye.
8 Keep me as the apple of the eye, hide me under the shadow of thy wings,
- Keep my commandments, and live; and my law as the apple of thine eye.
- A word fitly spoken is like apples of gold in pictures of silver.
Incidentally, apple of the eye is a reference to the pupil through which the dark retina is seen. It was once thought that the pupil was a solid, globular body.
So, Deuteronomy contains the first reference to an apple, and even then it was a reference to the pupil of the eye. The story of the Creation and the Fall appears in Genesis. Here is part of Genesis Chapter 3:
2 And the woman said unto the serpent, We may eat of the fruit of the trees of the garden:
3 But of the fruit of the tree which is in the midst of the garden, God hath said, Ye shall not eat of it, neither shall ye touch it, lest ye die.
4 And the serpent said unto the woman, Ye shall not surely die:
5 For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.
6 And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat.
No mention of apples. And that is not surprising: apples are generally found in temperate climates. The books of the Old Testament were written in much warmer places, and they were written in Hebrew and Aramaic so there is scope for adjustments in translation. One view is that the Tree of Knowledge was a reference to the pomegranate tree. OED2 says apple is:
“…part of the name of a large number of fruits; as apple Punic, obs. name of the pomegranate; apple of Sodom, or Dead Sea Fruit, described by Josephus as of fair appearance externally, but dissolving, when grasped, into smoke and ashes; a ‘traveller’s tale’ supposed by some to refer to the fruit of Solanum Sodomeum (allied to the tomato), by others to the Calotropis procera”
So an apple Punic is a pomegranate. Punic is a reference to Phoenecia (Carthage). The name for the Phoenecians comes from the Greek Phoinikes (‘purple people’) because of Tyrian Purple – a fabulously expensive dye for which they were famous. Incidentally, the word pomegranate (the fruit of the tree Punica Granatum) literally means apple with many seeds, so it is quite plausible that the pomegranate was the fruit originally understood as coming from the Tree of Knowledge. The pomegranate is native to Carthage.
Still, the apple now refers to a fairly specific kind of fruit and, despite its many varieties, is not readily confused with a pomegranate.
Apples were originally sold by the costermonger (originally meaning apple seller). We don’t have too many –mongers left in Australia, but the London barrow-man, who sells fruit and vegetables, still calls himself a costermonger, but the man who supplies apples (and nothing else) to the market does not. It is likely that costermonger derives from costerd, which means apple. Costerd and custard both mean apple: the so-called custard-apple is a pleonasm.
* * * *
A popular film in cinemas recently is The Imitation Game. It stars Benedict Cumberbatch as Alan Turing. If Fortune has any sense of generosity, it will fix the name of Alan Turing in the minds of millions of people who might not otherwise have heard of him.
Alan Turing was born in 1912. He was a brilliant but erratic student. He was educated at King’s College, Cambridge and at Princeton. During the Second World War he was one of the leading figures at Bletchley Park where the Germans’ Enigma Code was ultimately cracked. At Bletchley Park, Turing created the theoretical design of a programmable computing machine. As The Imitation Game illustrates, the Bletchley Park team had to use electro-mechanical devices, at a time when the most sophisticated electronic device available was the vacuum tube valve (transistors were not invented until the late 1950s; the integrated circuit was not devised until 1973).
There is a story that Turing was asked how many discrete states a computing machine would need to have. The prevailing wisdom suggested it would need 16 states. Turing thought about it overnight and came back with the answer: 2. That insight lies at the heart of the binary logic of all modern computers, which recognise just two states: one and zero; on and off.
As he wrestled with a means of encoding logical propositions in a machine, Turing recalled having read the work of George Boole (1815-1864), an English mathematician and logician. Boole had become mildly famous for a book in which he described a means of reducing logical propositions to a form of algebra. It was well-regarded in his lifetime and was soon forgotten after his death. But Turing remembered it, and used it to create the basic logic steps which lie at the heart of all computing: and, or, nand (not-and) & nor (not-or). Boole’s contribution to the area passes almost unnoticed every day, but the next time a search panel offers you a Boolean search, you will know it is a reminder of George Boole, courtesy of Alan Turing.
The received wisdom is that Turing’s work at Bletchley Park was crucial to Britain winning the war.
But Turing was gay. He had never recovered emotionally from his attachment to Christopher Morcom, a school friend he met at Sherborne, who had died in 1930. In 1952, Turing was convicted of a homosexual offence. He was not able to call in aid his extraordinary work at Bletchley Park: it was a State secret. He was offered a choice: prison, or chemical castration. He chose chemical castration, but soon regretted it. In June 1954 he committed suicide by taking cyanide. Cyanide has a very bitter taste. When his body was found, there was an apple on the bedside table. He had taken a bite out of it, apparently to dispel the taste of the cyanide.
It is widely thought that the logo of the Apple Computer is a reference to the Tree of Knowledge. That would be a fair assumption and a reasonable connection to draw. But there is an alternative which I prefer. It is thought that the Apple logo – an apple with a bite out of it – is a silent nod to Alan Turing.
I hope it is true: nothing could be more appropriate.
[This essay was published in 2009 by Melbourne University Press as part of their series of essays on various subjects]
I first saw privilege before I heard the word or learned its meaning.
My father’s parents lived in an enormous house in Toorak. With a vast garden, a covered walk, a pond, a rose-garden and a tennis court, it stood as a dignified monument to my grandfather’s mercantile success. A millionaire in the days of pounds, when being a millionaire really meant something, he was old, rich, clever, kindly, modest and powerful. My grandparents held splendid parties at which they entertained politicians and industrialists and people who were interesting or glamorous or both.
They had once had a weekender at Blairgowrie: a bluestone mansion with its own tennis court, nine-hole putting green and private jetty. In that magical world my father grew up.
As a child I saw these things but did not question them. I knew that most people did not live in mansions like this – our family home was modest by comparison, but I took for granted the fact that we had a tennis court at home, too. If I had thought about it (which I did not) I would probably have assumed that some people choose to have a tennis court, and others do not. That’s how you think as a 5-year old.
It would be some years before I realised that my parents and my grandparents enjoyed privileges which many would envy.
My father was a cherished only son. Photographs he took, on glass negatives, showed elegant tennis parties which could have been drawn from the world of Jay Gatsby or the Mitfords. His parents helped make the rules. They got what they wanted and he got what he wanted. Nothing was too good for him – a first-rate education at Melbourne Grammar and Melbourne University, a Riley sports car. But then, the Second World War.
* * * * *
The Japanese prison camp at Changi in Singapore is justly notorious. Thirty percent of those who were held there did not survive. They died of starvation, disease and mistreatment; of broken bodies and broken hearts. My father was there from February 1942 to October 1945. He survived, but came out changed.
Judging by the tone and content of the diary he kept every day in Changi, he went in as a priggish, spoilt, privileged young plutocrat, for whom wealth, position and success were an unstated assumption. He came out as a genuine egalitarian who believed everyone his equal in humanity and potential. Photographs he took in Changi, until the Japanese secret police cracked down on contraband, show the deteriorating condition of the prisoners, and the wretchedness of their circumstances. Photographs he took in the camp immediately after the end of hostilities show most of the survivors reduced to walking skeletons. He noted at one point in his diary that “company is more important than circumstances”.
After the war, as a Consultant Surgeon at the Alfred Hospital, he was a powerful, authoritative figure who was feared but admired. Feared because of his exacting standards in surgery; admired, not because of his family or schooling, but because of his skill and dedication.
He had the privileges of wealth, education and talent. He never misused the opportunities they opened up for him. And although his parents’ wealth was dissipated by bad luck and bad management, he used his education and his talent to pioneer new methods of surgery and for the good of many thousands of patients. He never, to my observation, acted as though privilege entitled him to anything hard work would not earn.
* * * * *
I had not looked up the dictionary definition of “privilege” until I sat down to write this essay. An informed guess turned out to be more or less accurate: “private law” is the Latin origin of the word. Privi-legium – a special law having reference to an individual.
Originally, the effect of a privi-legium on the individual might be good or bad: it might confer an advantage or benefit; or it might impose a penalty or forfeiture. English law also knew this darker form of privi-legium – a bill of attainder was a law passed by the Parliament by which a peer was declared attainted in blood and his property was forfeited.
From the 12th century in England, an ordained clerk who was charged with a criminal offence could raise the privilege of clergy (more popularly known as the benefit of clergy). Originally, it meant that he could be tried only in the Ecclesiastical courts, and the King’s courts had no jurisdiction. The merger of Church and State, when Henry VIII found Rome too doctrinally restrictive in matrimonial affairs, changed the distinction between the King’s courts and the Ecclesiastical courts, and the privilege of clergy gradually evolved into a system of rules which exempted a convicted cleric from capital punishment. The privilege was abolished in 1827.
Another distinctive form of privilege ended in 1642. Until then, the Stuart monarchs were able to dispense with the law in particular cases. The King’s ability to rule beyond the law, and to set the law aside in particular cases, was one of the hallmarks of the Stuarts – a natural out-working of the Divine Right of Kings. In 1627, Charles I was running short of money, but Parliament would not grant supply. He asked various nobles to advance compulsory “loans”, with no definite plan for repayment. Sir Thomas Darnel and four others refused. The King ordered their arrest. They sought habeas corpus. The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King]. The judgment of the court was ambivalent. The Judges decided that the prisoners should be remanded in custody, but said that in later cases they might consult with the King to see if release of the prisoners was appropriate. Darnel and his colleagues were victims of a form of privilege which was made possible by the King’s position above the Law.
This was very vexing for Parliament. The members of Parliament thought that they alone should make the law, and the King should not defeat it. They also resented the King taxing them without their consent: having established the principal with Magna Carta, it was not a privilege they would readily concede.
The question whether the King ruled apart from Law or subject to it was one of the major causes of discontent which aggravated relations between the King and the Parliament and culminated in the English Civil War. The King lost the war and his head, and that specialized form of privilege disappeared from English history. Since the Restoration, British monarchs have accepted that they rule subject to the Law, and cannot set it aside.
It is one of history’s little ironies that the United States of America has preserved some aspects of this kind of privilege. The outgoing US President has power to grant pardons – a power which bears a passing resemblance to the power of the Stuart Kings to dispense with the law in a particular case. And the similarity with the Stuart Kings does not end there. In the wake of September 11 and the US invasion of Afghanistan, President Bush established a prison camp at Guantanamo Bay. The idea was to place detainees beyond the reach of the law, so that Bush alone could determine their fate. From the outset, the world was told that the people held in Guantanamo Bay were the “worst of the worst”; they were “terrorists and killers and people who hate freedom”. And since, in the tunnel vision of George W. Bush, terrorism had suddenly sprung, fully-formed, into existence on September 11, it was necessary to find a new way of dealing with a “new problem”.
As a matter of legal principle, there was no “new problem”. Combatants captured in Afghanistan during the hostilities were either Prisoners of War or they were criminal suspects. Domestic and international laws deal comprehensively with both cases. There is no ground between the two possibilities.
The regime for treatment of Prisoners of War is clear: it is established by the Geneva Convention in relation to Prisoners of War, to which USA is a party. Relevantly, it provides for humane treatment; no interrogation beyond name, rank and serial number; and release at the end of hostilities unless tried for war crimes.
The regime for treatment of criminal suspects is also clear: humane treatment; no obligation to answer questions; no prolonged detention without charge; prima facie entitlement to bail when charged; and (importantly in these circumstances) criminal charges are generally to be dealt with in the country where the offences occurred.
In either case, and in all circumstances, there is an absolute prohibition on the use of torture. This is recognized as a universal norm of international law, and is the subject of the Convention Against Torture to which most countries, including the USA and Afghanistan, are parties.
Unfortunately, there comes a time in the history of nations when, for some unaccountable reason, basic values and accepted principles are diluted, betrayed or cast aside. The pretext may be external threat, internal strife or other great forces which are thought to call for extraordinary responses.
Faced with very clear legal limits, President Bush stepped back to the 17th Century and acted, in substance, as the Stuart kings had. He acted as if he could set aside the law and implement his own conception of right. He did so with help from Department of Justice employees. President Bush marshaled the best and brightest in the Department of Justice to identify the boundaries limiting the treatment of detainees held at Guantanamo Bay. They obliged by suggesting ways in which inmates of Guantanamo Bay could be held, not as prisoners of war, nor as criminal suspects. In consequence, their rights evaporated.
The Department of Justice suggested that torture was a difficult concept to pin down, and that (while the US would never use torture) it would be okay to use stress positions, waterboarding and the uncounted indignities later revealed at Abu Ghraib. The White House prefers to call these methods “coercion”. The rest of the world recognizes these techniques as torture. Changing the name does not change the thing. Doubtless the victims were enchanted by these quibbles of etymology.
President Bush’s authorizing of torture in Guantanamo Bay closely mirrors James I, who on 6 November 1605 personally authorized the torture of John Johnson, aka Guy Fawkes. It was deeply ironic to see Bush stumble back to the 17th Century, especially given the close connection between the excesses of the Stuarts and the foundational impulse of the American colonists. In protest against Charles I and his treatment of Sir Thomas Darnel, the Parliament presented the Petition of Right in 1627. It later formed the core of the US Bill of Rights.
But if George W. Bush saw the irony, he was not deterred by it: the establishment of a prison at Guantanamo Bay was designed specifically to put prisoners beyond the protection of the US Bill of Rights. When that device was defeated in the Supreme Court, Congress passed the Military Commissions Act of 2006. Despite the central role of the ancient writ of habeas corpus in protecting the rule of law, and its honoured place in the US Constitution, the Act denied prisoners at Guantanamo Bay access to habeas corpus. Thus the detainees were specially exempted from the reach of one of the Law’s most revered and powerful protections. That measure was struck down by the US Supreme Court in June 2008.
By then, the population of Guantanamo Bay had fallen dramatically. More than half of the original detainees turned out not to be killers or terrorists or the worst of the worst – just the unluckiest of the unlucky. After a year or two or three of coercion and misery, they have been repatriated, without apology, without compensation and without even an explanation. It is not clear whether the US Government will reclaim the bounty they paid to the Northern Alliance for these prisoners.
The first military commission of Guantanamo Bay began in July 2008, six years after the privileged were rounded up and thrown – trussed, gagged and hooded – into the legal black hole called Guantanamo Bay. The first defendant is Selim Hamdan. He probably does not know how privileged he is, etymologically, because he is the victim of the special law-breaking efforts of the US President; and more positively, in that he is not one of the suspects who have been beaten to death by American interrogators in the course of their coercive, non-torturing techniques.
There is something deeply ignoble about it all. The US is a “nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” Its Constitution carries the scars of the Stuart rule:
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. .… No bill of attainder or ex post facto law shall be passed.” The US pioneered the idea of fair trials of war criminals. They established the model for the Nuremberg trials. The Nuremberg Charter was issued on 8 August 1945. It set out the laws and procedures by which the trials would be conducted. It stands in marked contrast to the Manual for the Military Commissions at Guantanamo, issued on 18 January 2007. The Nuremberg Charter provided for forensically fair trials; the Guantanamo Commission does not. The defendants at the first Nuremberg Trial were the most senior surviving members of the Nazi regime. Selim Hamdan is said to have been Osama bin Laden’s driver.
Nuremberg might not have such an exalted place in the history of international justice if the only defendant had been Hitler’s valet.
* * * * *
In its modern sense, privilege is always an advantage for the holder. Privilege will be variously envied, resented, feared or (occasionally) admired, depending on the way their privilege was gained and the way it is exercised.
The greatest reason for resentment and envy is that the person does not deserve the privilege they enjoy. The snotty, arrogant private school boy who treats as his by right what comes to him by chance; the politician who by his bearing assumes a right to rule because of his birth or social position. These are stereotypes we love to hate.
But it is all relative. A person who is homeless, without any fault of her own will see the tenant of a modest flat as privileged; an Aborigine must surely see most white Australians as privileged; to the disabled, most of us are privileged. To those born in many parts of the Third World, we in Australia are all privileged.
At its heart, resentment of privilege springs from a deep-seated sense of justice and injustice. The wretched fate of some people, or by contrast the great good fortune of others, strikes us as unjust. Well, it strikes the unlucky as unjust; and if the privileged get what they have without merit or special effort, the injustice seems all the sharper.
The relationship has two directions: the view from below, and the view from above. Those with privilege view the matter from their own standpoint; those without it view it from theirs. But the two views are not symmetrical. Privilege is generally noticed by those who do not have it; it is not always noticed by those who enjoy it. Hamlet famously complained about the slings and arrows of outrageous fortune and the insolence of office, he railed against the proud man’s contumely. He was less forthcoming about the fate of the grave-diggers, or the beggars outside the gates of Elsinore. They might have wondered what he was complaining about. True, his friends were untrue and his family life was uneven, but he lived in a nice castle, he had Chamberlains and courtiers to help him, and he never wanted for the basics. From the perspective of the grave-diggers and the beggars, Hamlet had it all.
For the privileged to see the truth of their own position, they must first notice the existence of the less privileged: not only that they are less privileged, but that they are beings of the same order for whom the sight of privilege might be a source of torment.
Ambivalence about human rights is one of the great mysteries of life in Australia. We do, by and large, believe that human rights matter, and we are broadly egalitarian in our disposition. Nevertheless, we have managed in our short history to ignore some outrageous denials of human rights. The explanation, I think, lies in that sort of blindness which afflicts the privileged.
Human rights matter, we all agree. By which we mean: “My human rights matter; the human rights of my family and friends and neighbours matter. After that ….” It is hard to resist the conclusion that we care little for the human rights of people we fear or hate. From this compromised starting point, the argument generally says that we do not need any measures to protect human rights, because human rights are safe in Australia. And of course, that is true at least for me, my friends, my family and my neighbours.
What then of the human rights of aborigines, dispossessed of the land they occupied for millennia? They were separated from the land, although their connection to it is as the connection of child to parent. They sank, many of them, into abject misery on the fringes of white society. We took their children from them because suddenly, after 30,000 years, good parenting was beyond them, we thought. Separation of child and parent – first metaphorical and then literal. The result: untold human misery. Our response: indifference, resignation, and a bit of tokenism.
It was not until 1992 that an Australian court recognised that the original inhabitants of this continent had owned it when white settlers arrived. It took Australia 204 years to recognize that, as a matter of law, this land was occupied by people whose connection to it was analogous to, but much more profound and personal than, ownership. Until then, it was as if ownership was meaningless, unless signified by inky scratchings on parchment. The decision of the High Court in Mabo was greeted with howls of derision and angry comments about activist judges.
It was not until 2007 that an Australian court recognized at last that Aboriginal children had been taken unlawfully from their parents, and that, in taking them, the Governments must have know that they were inflicting harm. Bruce Trevorrow was born to Aboriginal parents at One Mile Camp, Meningie, on the Coorong in South Australia. When he was 13 months old he got gastroenteritis. He was admitted to the Adelaide Children’s Hospital. The records show that his gastroenteritis cleared up seven days later, and seven days after that he was given away to a white family. They had seen an advertisement in the newspaper offering Aboriginal babies for fostering. They wanted a second daughter. They went to the hospital on a Sunday and saw a cute, curly-headed little girl and said they would like to take her home. She was given to them. When they got her home and changed her nappy they discovered she was a boy. That was the transaction by which Bruce was given away. When Bruce’s mother wrote to the Department asking how he was doing and when he was coming home, they replied (falsely) that he was doing well but that the doctors had said he was not well enough to come home yet. Thereafter, they actively prevented his mother from finding out where he was. He did not see her again until he was 10 years old. By that time, his father had already died. Bruce’s entire life was marked by insecurity, anxiety, depression, alcoholism and blighted by a profound sense that he did not belong anywhere. After a 10 year legal battle, he won a verdict on the 1st August, 2007. He died on 20 June 2008, aged 51.
The decision in Trevorrow did not provoke the hostile response which followed Mabo. It sparked a predictable backlash from parts of the commentariat, still dedicated to the idea that Aboriginal children were not taken; it was welcomed among parts of the public for its historic significance; it played its part in the impetus for a national apology which was given in Parliament on 13 February 2008.
But the findings in Bruce Trevorrow’s case caused little concern in the public at large. How can this be? If white babies were taken in the same manner – taken from parents who were willing and able to look after them, given to other families who were thought to offer socio-economic advantages, we would be outraged. Imagine advertising white babies for fostering – come and collect one, no paperwork, no questions asked. We would not tolerate it. Tabloid journalists would be outraged, Commissions of Inquiry would be called; Governments would fall. But it was only Aboriginal kids, and it did not matter as much as if it had happened to kids the average Australian would empathise with as a fellow being whose rights and interests, whose loves and fears, were as real as his own. The unstated vanity that ‘this could never happen to me or mine’ confers the privilege of selective blindness on Australia’s relaxed and comfortable majority.
And there is the recent indignity of refugees – men, women and children – being incarcerated indefinitely in desert prisons, without regard for the fact that they have committed no offence. They present no risk to the community; but we jailed them, and we held them for as long as it took to work out that they are refugees. We made them liable for the costs of their own detention. We charged them separately for the privilege of solitary confinement. We added GST to the detention bill. And if they were not refugees, we continued to hold them until we could remove them from Australia. All of this continued until 29 July 2008 when government policy on these matters changed.
If we could not remove them from Australia, we could jail them forever. In 2004, the Al-Kateb case was decided by the High Court. He was a boat person. He was detained while his claim for protection was considered. It was rejected. Woomera was too harsh to bear, so he chose not to prolong his agony by appealing. Instead, he asked to be removed from Australia. But he could not be removed – he is stateless. The Howard Government argued that he could be held in detention for the rest of his life. The High Court, by a majority of 4 to 3, agreed that that was what the Migration Act says, and that it was constitutionally valid with that meaning.
The Al-Kateb case should have provoked banner headlines across the country. It should have sparked outrage in every corner of the land. Instead, it was largely ignored. Even now, four years later, most Australians have never heard of the case.
How can these things be? How can it be, in an egalitarian society, that the injustice of these things creates scarcely a ripple? How is it that it is not even noticed by newspapers and columnists? The answer I think is found at the threshold: most Australians do not recognize the original inhabitants, the stolen generations, the faceless asylum seekers, as people: at least, not in the same sense that we are people. Their humanity is of a different order. Their disadvantage is invisible to us, although our privilege is painfully visible to them.
This is the explanation Rai Gaita points to in an essay on the Mabo case. He wrote “We love, but they ‘love’; we grieve, but they ‘grieve’; and of course we may be dispossessed, but they are ‘dispossessed’. That is why, as Justice Brennan said, racists are able ‘utterly to disregard’ the sufferings of their victims. If they are to see the evil they do, they must first find it intelligible that their victims had inner lives of the kind which enable the wrongs they suffer to go deep”.
The privileged are often blind in just that way, and this kind of blindness may have a survival advantage. To see daily the disadvantage of those, in relation to whom we are so privileged, must be nearly unbearable.
To recognize the equal humanity of every broken spirit of the stolen generations; to see your own child in the face of every child fretting and grieving in a detention centre, would be a terrible burden. This blindness protects the privileged.
* * * * *
The war on terror has exposed another facet of our complex relationship with human rights. The war on terror made it necessary, we were told, to introduce special measures to make us safer. ASIO now has power to hold a person incommunicado for a week, and force them to answer questions. If they do not answer satisfactorily they face five years’ jail. They must not tell anyone where they were during their disappearance, or they face five years’ jail. No journalist can write about their experience; if they do they face five years’ jail. All of this can be done to a person not suspected of any offence.
A person can be jailed for 14 days on a preventative detention order if an official is satisfied that the person might otherwise commit a terrorist offence. The order is made in a secret hearing, about which the subject of the order knows nothing. The order is made if the official is satisfied of the facts on the balance of probabilities. The person who is to be jailed is only told of all this when they are arrested, and even then they are not allowed to know the evidence which was used against them.
In certain classes of legal proceedings, the Attorney-General has power to issue a certificate, the effect of which is that the other party to the proceeding is not allowed to see the documents the Government relies on in the case, is not allowed to hear evidence the Government relies on, is not allowed to hear the submissions the Government relies on. Their lawyers are not allowed to access the documents, and they are not allowed to hear the government’s evidence or submissions.
Basic rights are trashed and the hearing is a travesty. When the laws were passed which make these things possible we were told that they were necessary to help protect national security. While it is a fair bet that fridge magnets were not going to be enough, there was no debate about whether it was reasonable or necessary, or even effective, to destroy the democratic freedoms we were ostensibly fighting to protect. There was not much of a protest. After all, everyone agrees that national security is important. The commentators pointed out the self-evident fact that, at times, it is necessary to sacrifice our rights to some extent in order to protect the greater good.
But apart from blindness, there is a kind of mean calculation which happens somewhere deep in the primitive corners of the mind where language and consciousness are cannot reach. The calculation below the surface is this: my safety has improved, their rights are reduced. I win.
Most Australians will not find their rights affected by these provisions. If you are not a Muslim, and do not look like you might be a Muslim, you will not likely be troubled by these provisions at all. Unless someone makes a mistake. You will not be able to discover the mistake that was made. You will be as shocked and confused as those hundreds released from Guantanamo Bay must have been during their years of humiliating, damaging captivity.
It is easy to test the calculation. If we are serious about combating terrorism, if we really want to stop it before it happens, we could install closed circuit TV cameras in every room of every house across the land; we could monitor them centrally and save the whole lot to an enormous database. Plotting any crime will become a very risky business. Sure, we lose our privacy but as they say “if you have nothing to hide, you have nothing to fear”.
Will this modest proposal be embraced? Only by lunatics, I think.
* * * * *
Protecting our basic rights against populism is one of the most basic challenges in a democratic system. In a democracy, the majority for the time being enjoys a privilege which they jealously guard. When arguments are put forward for basic rights protection, the majority answer that rights are sufficiently protected, or that a Bill of Rights is anti-democratic because it will transfer power from the democratically elected representatives to the unelected, undemocratic judges.
To make the debate intelligible, it is useful to identify what we are talking about. First, those who advocate a Bill of Rights are not talking about a US style Bill of Rights. Some people prefer to speak of a Charter of Rights in order to make the distinction plain. Nevertheless, there is no magic in the name: a Charter of Rights and a Bill of Rights are the same thing; the US Bill of Rights is an early example, but it is not one to be emulated. The US Bill of Rights is an 18th Century document with almost nothing in common with modern bills of rights. The rights protected by a modern Bill of Rights are – broadly speaking – the sort of rights addressed in the Universal Declaration of Human Rights which most nations, including Australia, signed in 1948.
It would be difficult to find any serious disagreement about the nature of those rights – the right to life, freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law etc. The disagreement arises when the question of protecting those rights is in issue. This is a strange thing, given that protection of human rights was the ideal of the Universal Declaration. Its Preamble includes the words:
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, .…”
Despite the terms of the Universal Declaration, and regardless that the rights it spells out are basic and self-evident, they are not protected in our democratic system.
There is not much room for complacency. Within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid. One response to this is that a democratic system allows that government to be thrown out at the next election. This is true, but it is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans. At times, majoritarian rule begins to look like mob-rule.
Generally, Parliament’s powers are defined by reference to subject matter. Within a head of power, Parliament can do pretty much what it likes. Thus, the Commonwealth’s power to make laws with respect to immigration has been interpreted by the High Court as justifying a law which permits an innocent person to be held in immigration detention for life, regardless how harsh the conditions, and make him liable for the daily cost of his own detention.
The question then is this. Should we have some mechanism which prevents parliaments from making laws which are unjust, or which offend basic values, even if those laws are otherwise within the scope of Parliament’s powers? If such a mechanism is thought useful, it is likely to be called a Bill of Rights, or Charter of Rights, or something similar.
But, the opponents complain, it is undemocratic: it hands all the power to the judges. Whether that is true depends on the form of the Bill of Rights. Whether it is a relevant objection, even if true, depends on a proper appreciation of what a Court’s role is.
Broadly speaking, a modern Bill of Rights can be a weak model or a strong one; and it can be an ordinary statute or constitutionally entrenched. The arguments for and against a Bill of Rights change profoundly according to the model under discussion. Unfortunately, the conservative commentators never identify exactly what it is they are condemning.
Statutory Bills of Rights can be disregarded or repealed if the Parliament so wishes. A constitutional Bill of Rights, on the other hand, cannot be repealed or altered except by referendum. A constitution (in theory) expresses the will of the people directly, and binds the Parliament. A statute, by contrast, expresses the will of the people indirectly through their elected representatives and can be made, changed and repealed by the Parliament.
A strong model Charter creates rights of action: if a person’s rights are breached, they may be able to sue for damages. A strong model may also forbid Parliament to do certain things and thereby directly limit the power of the Parliament.
A weak model simply requires Parliament to take protected rights into account when passing legislation. If they wish to disregard those rights, they must say so plainly. This may involve a political cost if Parliament decides to disregard rights which it has previously resolved to respect. In addition, a weak model Charter guides Judges in the way they should interpret legislation, so as to preserve rights rather than defeat them.
The ACT and Victoria both have statutory, weak models of rights protection . So long as the public and the conservative commentators find it alarming to protect rights, a weak statutory model is a good solution.
Plainly, a weak statutory Charter of Rights does not transfer power from Parliament to unelected judges. At its highest, it requires Parliament to address directly the fact that they intend to diminish basic rights if that is what they intend. It puts a political price on the erosion of rights, but it does not prevent it.
A stronger Charter of Rights may give power to judges. Depending on its form, a Charter of Rights might limit the power of Parliament to make laws which unreasonably erode the rights which Parliament has already recognised as basic to the human condition in modern society. But to raise this as an objection to protecting rights is odd: Parliament’s powers are already limited. In Australia, the limits are found in the Constitution. They are generally set by reference to subject matter. It is the role of the Courts to interpret the laws passed by the Parliament, and to apply them if they are valid. In many cases, especially in the High Court, the Court is asked to determine whether or not a law passed by the democratically elected Parliament is valid or not. They do so by interpreting the relevant Act and the Constitution to see whether the Parliament has exceeded its powers. That is the Courts’ role. Many cases raise questions about Parliament’s powers. Judges are the umpires who decide whether Parliament has gone beyond the bounds of its power. A modern Charter of Rights introduces, or records, a set of basic values which must be observed by parliament when making laws on matters over which it has legislative power. It sets the baseline of human rights standards on which the Parliament has agreed.
Because this is so, it is wrong to say that a Charter of Rights abdicates democratic power in favour of unelected judges. A Charter of Rights is a democratically created document, like other statutes. To complain that Courts give effect to a Charter of Rights is to misunderstand the role of Courts. Enforcing it is not undemocratic at all.
Protecting basic human rights by adopting a Charter recognises that the privilege of the democratic majority cannot be unbounded, and that ‘if man is not to be compelled to have recourse .… to rebellion against tyranny and oppression, .… human rights should be protected by the rule of law’ .
It is a sad puzzle in Australia today that some of the most powerful and privileged people in the country oppose the adoption of a Bill of Rights. On 30 July 2008, Cardinal Pell was reported as having urged the Prime Minister to give no further consideration to the adoption of a Charter of Rights. Presumably a perosn in holy orders believes in the concept of human rights: how odd then that he does not think those rights should be protected by law against unreasnable erosion. As part of his coordinated plan to prevent rights protection in Australia, Cardinal Pell gave a speech at the Brisbane Institute on 14 February 2008, in which he spoke against the idea of a Charter of Rights. He ran the usual alarmist arguments, but unfortunately he did not identify what sort of Charter of Rights he was opposed to. Perhaps like others among the privileged, he thinks rights are safe in Australia, and is blind to those whose rights are not as secure as his own.
* * * * *
Privilege can attach not only to people but to abstractions. In law, certain communications are privileged.
For example, confidential communications between lawyer and client are privileged. Neither the lawyer nor the client can be compelled to disclose the contents of the communication. Neither can be forced to hand over a document recording the communication. The reason for the privilege is based on public interest: the public interest is, on balance, advanced if people are able to consult lawyers candidly.
Documents marked ‘Commercial-in-confidence’ attract a weaker kind of protection. It is not as robust as the protection offered by legal professional privilege, but the talismanic words confer a kind of privilege which frustrates lay people and journalists as they struggle to find out what is going on beneath the surface in increasingly powerful and privileged corporations.
Professions are themselves little pockets of privilege. It is the hallmark of a profession that only members of the profession may engage in that profession’s work. They guard the monopoly jealously. In truth, the work of all professions includes a great deal which cannot safely be entrusted to a person not appropriately skilled. If I need brain surgery, I will go to a brain surgeon regardless of the monopoly which medical practitioners enjoy, but because I want the job done properly. Where a particular activity of a profession is capable of being safely performed by a person who has not had the exhaustive training usually associated with professional qualification, retaining that part of the monopoly is a privilege which will sooner or later be seen as unsupportable.
Years ago, someone advanced the heresy that conveyancing was an activity which could usually be performed without the benefit of a law degree. The legal profession fought hard to prevent the heresy from gaining acceptance. They lost. Many domestic conveyances are now conducted by private conveyancing companies. The truth was that, in many cases, the privilege of the conveyancing monopoly was an accident of history and no longer reflected the skill and knowledge which mark out the proper territory of a profession.
The legal profession has another kind of privilege. Lawyers appearing in courts cannot be sued if they perform negligently. This ‘barrister’s immunity’ is a distinct kind of privilege which is greatly resented by members of the public. This form of privilege is also based on public policy considerations, but those considerations are not obvious to most people. It is resented in part because it is seen as standing in marked contrast to other professions whose members can be sued if they do their job badly. Doctors especially resent it, because their lives are often made miserable by lawsuits. But the barrister’s immunity is not quite the exception it seems. It is a long-standing principle that no-one can be sued for what they do or say in a Court. If a case is lost because the witness lied, the losing party has no right of action against the lying witness. If the case is lost because the Judge was careless or the jury were lazy or incompetent, the losing party cannot sue the judge or the jury. The public policy reason for this is to ensure that everyone in court is free to say what they will. Consistent with this, the barrister cannot be sued for what he or she says in court. It is a privilege, but one which has a principled foundation: it does not exist simply for the benefit of careless barristers.
A different kind of privilege came into focus recently during the public debate about Bill Henson’s photographs. The photographs were the subject of an attack by Hetty Johnson. She alleged that one of the photographs (the only one she actually saw) was pornographic, and should be removed from public show. Interestingly, Hetty Johnson admitted publicly that she had never heard of Bill Henson, and did not know his work. Her views about his work did not change in the slightest degree when she learned of his status as one of Australia’s most widely famous living artists, celebrated and collected by the world’s greatest galleries. They might not even have changed if she had seen more than one example of his work. That’s the marvellous thing about obsessive views: they are so durable.
At the time Hetty Johnson entered the fray, the New South Wales Government was taking some heat as a result of one of its former members having been convicted of paedophilia and drug offences. The Henson show was a welcome distraction. Events escalated rapidly, and police seized 20 of the images from the walls of an up-market Sydney art gallery.
When the fog of moral panic cleared enough to make it safe to walk outdoors, the police hinted that Henson might be charged with child pornography offences. This raised fascinating questions not only about whether Henson’s work was anywhere near the territory of child pornography, but also whether, as art, his work was entitled to a special defence. Of all the issues arising out of the Henson matter, this was the most interesting.
The relevant provisions of the New South Wales’ Crimes Act make it an offence to create, disseminate or possess child pornography. Child pornography is defined somewhat more widely than might be supposed. It means material that depicts or describes, in a manner that would cause offence to reasonable persons, a person apparently under the age of 16 years engaged in sexual activity, or in a sexual context, or as the victim of torture, cruelty or physical abuse (whether or not in a sexual context) . It is a defence to a charge of child pornography that, having regard to the circumstances in which the material concerned was produced or used, the Defendant was acting for a genuine “child protection, scientific, medical, legal, artistic or other public benefit purpose and the Defendant’s conduct was reasonable for that purpose”. Thus art is privileged, along with medicine, science etc. Victorian law has similar provisions which likewise privilege art, medicine and science.
Art, or genuine artistic purpose, is privileged in a number of other settings. Under the New South Wales’ Anti-Discrimination Act, it is an offence for a person, “by a public act, to incite hatred or contempt” for others on the grounds of race, transexuality or HIV/AIDS status. However it is a defence if what was done was done “reasonably and in good faith or academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter” .
The Classification (Publications, Films and Computer Games) Enforcement Act 1995 of New South Wales provides, as its name suggests, for the classification of various forms of work. It also regulates the organizations that may be involved in possession or distribution of those works. An organization may be exempted from the operation of the Act having regard, among other things, to “the extent to which the organization carries on activities of a medical, scientific, educational, cultural or artistic nature” .
Victoria has similar provisions in its Crimes Act and Equal Opportunity Act. In addition, the Victorian Classification (Publications, Films and Computer Games) Enforcement Act defines “objectionable publication” as a publication that (among other things) “lacks serious literary, artistic, political, educational or scientific value and describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that a reasonable adult would generally regard as unsuitable for minors” .
Section 4 of the Victorian Racial and Religious Tolerance Act identifies the objects of the Act as including: “… to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalize any person or class of persons” .
It is a defence to prosecutions under the Act if the person charged establishes that their conduct was engaged in reasonably and in good faith in the performance, exhibition etc. of “an artistic work” or in the course of any statement or discussion engaged in for “any genuine academic, artistic, religious or scientific purpose”
The public debate about Bill Henson’s work focused on the question “Is it art or is it pornography?”. The self-evident result was that it is art, and is not pornography.
But it was not the right question, and Bill Henson was not the right target. Work can fall within the definition of child pornography but be immune from prosecution because it is also art, because art is privileged. The interesting question at the heart of the Henson debate was why art should be privileged in this way, and in other sensitive areas such as discrimination and vilification.
Put more bluntly, if words or images are pornographic, or amount to racial or religious vilification or unlawful discrimination, why should it be defensible if done genuinely in the name of art?
The answer can be inferred from the other privileged areas of activity in the same context. Something which is otherwise within the meaning of child pornography etc. will not involve an offence if the purpose of making it or possessing it is “child protection, scientific, medical, legal, artistic or other public benefit purpose”.
Conduct which would otherwise be unlawful vilification is lawful if done for “academic, artistic, scientific or research purposes or for other purposes in the public interest”.
An organization may be exempted from the classification laws if its activities are “medical, scientific, educational, cultural or artistic”.
By inference, the privilege is the result of the public benefit implicit in the domains of activity identified. While I willingly embrace the idea that art brings with it a public benefit, it is a proposition which does not win universal acclaim. Not everyone agrees that art matters. But it does, and for several reasons.
First, in profoundly important ways, every work of art carries part of our shared culture. It has a value which transcends money. The destruction of the library at Byzantium in 1204 and the looting of the national museum of Baghdad in 2004 represent losses which no-one has tried to measure in economic terms, because the calculation would miss the point completely.
Few people would accept that a person who buys an iconic painting could withdraw it forever from public view. No-one would accept that the purchaser of a great work of art was entitled to destroy it. We all acknowledge that a work of art is more than an article of commerce.
There is another reason why art matters, and deserves to be privileged. Victor Hugo once said: “Music expresses that which cannot be put into words and that which cannot remain silent.” So it is with all the arts.
Human language has a vocabulary adapted to accommodate our daily needs and functions: the vocabulary of any human language maps approximately to the needs and activities of our mundane lives. But few would deny that there is another dimension of human existence which transcends the mundane: call it the soul, the spirit, that part of the human frame which sees the shimmer of the numinous.
In the domain of the human spirit, other vocabularies are needed. Painting, music, poetry and sculpture are all different languages, and each gives access to areas of human experience which are not available to other sorts of language. This is why works of art are considered less meritorious – or at least, less interesting – as they become more literal and narrative. If an idea is readily expressed in words, why bother expressing it in paint or music instead? By contrast, some ideas can only be expressed in paint or music: the vocabulary of paint and music share little with the vocabulary of spoken language. I once heard someone ask an abstract expressionist to say what one of his paintings meant. He said “No, I can’t tell you, but I will try to hum it.”
Next, art is valuable, and deserves to be privileged, because it plays an important role in exposing truths we might prefer not to see, or which politicians might prefer us not to see. James Thurber was a popular writer in America in the 1950s. While McCarthyism was doing its doleful worst, Thurber wrote seemingly innocent stories in the style of Aesop’s fables. Thurber’s Fables For Our Time and Further Fables For Our Time were written with animals as their protagonists. Properly understood, the fables argue for free speech and honesty, and argue against deception and oppression. Thurber was deeply subversive but almost impossible to censor. After all, who could justify suppressing an innocent story about lemmings running off a cliff, or a mouse which ate too much?
On 5 February 2003, Colin Powell announced America’s intention to invade Iraq. The announcement was made outside the entrance to the Security Council of the United Nations. He stood in front of a wall which bears a reproduction of Picasso’s Guernica – one of the best-known examples of the art of dissent. It bluntly portrays the horrors of war. However for Colin Powell’s announcement Guernica had been modestly covered over with a vast blue sheet, so that the tens of millions who saw, on television, the world’s only super-power declare war on Iraq, would not be reminded of the horrors about to be unleashed. Only a few recognised that, in that simple gesture, a country born of dissent stifled an inconvenient mark of dissent. A commentator wrote in the New York Times: “Mr Powell can’t very well seduce the world into bombing Iraq surrounded on camera by shrieking and mutilated women, men, children, bulls and horses.”
It is true that Picasso was air-brushed out of a moment in history, but his voice was not stilled. His message remains visible for all to see. In retrospect, perhaps it would have been better if Guernica had not been covered up that day; if the privilege art deserves had been respected: perhaps we would have looked for better assurances from our politicians that the storm of misery about to be unleashed was justified.
The power of the hidden, but recognised message, is clear in at least two major symphonic works which come to mind. Shostakovich’s 5th Symphony – ostensibly a work of apology to the State – ends with a long slow movement which was widely understood by its audience as an extended, haunting reference to the wastelands of the Siberian Gulag.
Another interesting example, not well enough known, is the choral movement of Beethoven’s 9th Symphony. The text is drawn from Schiller’s poem “An die Freude” – To Joy. Leonard Bernstein has commented that there is a “funny piece of 19th-century musicology” to the effect that Schiller originally set the title of the poem as “An die Freiheit” – To Freedom. Certainly, an ode to Freedom would have been dangerous and radical in Vienna in 1815. The French Revolution was still a matter of living memory, and the titled heads of Europe had not yet fully embraced the ideals of Liberté, Egalité, and Fraternité. Teachers and writers suspected of liberal views were blacklisted. To speak of freedom was dangerously unacceptable. Whilst an Ode to Joy would pass the censors, an Ode to Freedom would certainly not.
Beethoven’s liberal thinking emphatically supported the original spirit of the French Revolution, and his use of Schiller’s text – widely recognised for what it truly meant – was an act of defiance characteristic of Beethoven.
Beethoven’s original intention for the 9th symphony was carried into execution on 25 December 1989 when Bernstein conducted a performance of the 9th Symphony to celebrate the fall of the Berlin Wall. In that performance, Freiheit not Freude was sung. Beethoven’s 9th was played over loudspeakers by students in Tiananmen Square, during their protest against tyranny.
Not surprisingly, Beethoven was contemptuous of privilege. It is well-known that in 1803 he originally dedicated the 3rd symphony to Napoleon, but when he heard that Napoleon had declared himself Emperor, he destroyed the dedication shouting “The man will become a tyrant and will trample all human rights under foot. He is no more than an ordinary man!”
He had been on friendly terms with Prince Lichnowsky for some time and visited his castle in Silesia in 1806. There were a number of guests at the castle, including officers in Napoleon’s army who had been billeted there against the Prince’s wishes. Beethoven was furious – his anger at Napoleon had not abated – and he refused their request to play for them. The Prince, trying to be an obliging host, urged him to play but he would not agree. He left the castle without telling the Prince, and wrote to him: “Prince! what you are you owe to chance and birth. What I am, I am through myself. There has been, and will yet be thousands of princes, but there is only one Beethoven.” This disdain for the privileges of birth and position is rare even now, and was radical in 1806.
* * * * *
Politicians are also privileged. Their words spoken in parliament cannot be used against them in legal proceedings of any sort. That is why they can vilify people or defame them in Parliament without the risk of being sued for defamation. But politicians are privileged in other, less obvious, ways. Even though they are entrusted with what is arguably the most significant job in the country, they are not liable if they lie to the public whose interests they are supposed to serve. The usual justification for this is that the way to discipline politicians whose standards fall below what is acceptable is to vote them out. The number of dismal performers in political office suggest that the acceptable standard must be incredibly low. Elections tend to be fought on a narrow range of issues, and to be decided on an even narrower range.
Most members of the public see honesty as a core value in our society. In personal dealings, dishonesty on matters of any significance is rightly regarded as an unacceptable breach of standards. The Trade Practices Act was introduced by Lionel Murphy in 1974. Almost as an afterthought, Murphy included section 52. It is probably the most potent sentence in the statute books. It says: “A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. In only 23 words – a modest number by legislative standards – section 52 introduced a new norm of corporate behaviour. It changed the landscape of commercial dealings, and quickly became the commonest cause of action in the Federal Court.
Most people believe politicians lie. Some politicians lie more than others. It is not a trivial problem: politicians fill a vital role in our society. Why should the behaviour of politicians fall short of the standards Parliament has set for business, and which we all set for ourselves and each other?
There are many different ways of lying. Notoriously, telling only part of the truth is a way of misleading the unwary. It is the way generally favoured by politicians, because it is less easily exposed than a direct falsehood. In Parliament, politicians are not allowed to mislead the house. They should not be allowed to mislead the public – they are the servants of the public, paid from the public purse, and representing the public interest.
Courts have a great deal of experience in deciding whether a person has engaged in misleading or deceptive conduct. If a person states a fact which is false, that is misleading conduct. The difficulty arises when a person offers opinions or makes statements about the future. Opinions and predictions may turn out to be wrong, but that does not of itself mean that the speaker engaged in misleading conduct. But if a person expresses an opinion which they do not in fact hold, that is misleading conduct. If a person offers a prediction of the future for which they have no reasonable foundation, that is misleading conduct.
Every time politicians mislead us, they betray the public in a fundamentally important way.
But honesty in politicians is important for another reason. Politicians’ vision for the future generally does not extend past the next election. Anything over that magic horizon is generally put aside for another time. It may turn out to be someone else’s problem. If politicians could be punished for misleading and deceptive conduct, they would have to confront long-term problems much sooner.
Global warming is a recent, although possibly a contentious, example. The science concerning global warming has been tolerably clear at least since the Independent Panel on Climate Change Report of 1995. Like the science concerning the link between smoking and various diseases, the science concerning climate change has become increasingly clear. Since 1995, the overwhelming preponderance of scientific opinion has supported the view that global warming is a real phenomenon; that it is caused largely by human activity; and that if left unchecked it will lead to catastrophic global consequences. Dissenting views tend to come from people acting at the instance of vested interests.
Politicians confronted with the scientific evidence have a few choices: they can say they believe global warming is true and that there is a problem; they can say they do not believe it is true, and that there is not a problem; or they can say that they do not know or do not care. But if the opinion they express is not an opinion they truly hold, then they mislead us. If politicians were forced to express an honest opinion – that is to say, an opinion they honestly hold – rather than one peddled by vested interests or lobbyists, or one which is politically convenient, we may have begun the conversation about global warming a decade ago.
Enforcing honesty in politicians would help extend the policy horizon beyond the next election. There can be no legitimate policy reason why politicians should be allowed to mislead the people they are entrusted to lead. It is a privilege which cannot be justified.
* * * * *
Australians don’t talk much about the privileged classes these days. The preferred word is ‘elite’. This is as ambiguous as ‘privilege’ once was. Some elites are good – sporting heroes, rock stars, famous actors and so on. Other elites are bad – the regular critics of the previous Government, for example, and people who offer opinions about uncomfortable subjects – the sort of subjects which have occupied most of this essay, for example.
In recent times, Australians have resented this category of elites. It is not immediately obvious why that should be so. Perhaps it is because the subjects prick our conscience, and disturb our complacent enjoyment of the many good things this country offers. That would explain the choleric, personal attacks which, for the past decade, were directed at anyone who suggested that white settlement of Australia involved episodes of bad conduct and serious injustice, or anyone who doubted the moral worth of jailing innocent children behind razor wire.
Perhaps they were resented because they were inclined to think and willing to speak out. To do so implies a privilege. It implies the privilege of a good education, and the privilege of access to the media. Their voices were heard, which is a valuable privilege in the marketplace of ideas and prejudices. They spoke as if they had answers. That was resented by those who had different answers, or who did not like the questions.
The elites were caricatured as drinking café latte and sipping chardonnay, although why the choice of drink and the manner of drinking it should be a social stain was never explained. A book called The Twilight of the Elites attracted more attention than it was worth. Why the eclipse of intellectual pursuits should be celebrated was not explained. There was some comfort in the fact that another book, more entertaining and better written, called Triumph of the Airheads, was published at around the same time. It obliquely praised the idea that thinking was okay; that the privilege of rational discourse was not necessarily to be despised, especially when compared with the alternative.
The tide may have turned with the election of the Rudd Government. The 2020 Summit suggested a new attitude to ideas and held out the hope that dissenting views might be greeted without rancour. The apology to the stolen generation stood in marked contrast to the attitude of the Howard Government, and it was widely applauded even though it scratched at our conscience.
On 29 July 2008 the Rudd government announced a radical overhaul of the immigration detention system. The announcement came as a profound relief to those who had long argued for such a change. It signals a retreat from a policy which damaged and disfigured our national reputation. I was one among the many who had spoken against indefinite mandatory detention. By publicly voicing the arguments against that policy, I had earned the enmity of the Howard government and the opprobrium of some of my professional colleagues. I had received death threats and abusive emails beyond number, and was disparaged publicly as one of the usual suspects, one of the ‘Howard haters’, one of the chardonnay sipping latte drinking elites, etc. If the mistreatment of innocent people was the new orthodoxy, it was a privilege to be despised for opposing it.
Now the Immigration Minister has announced that it will all change. When I read his speech on, I experienced a strange mix of emotions. Not triumph; no sense of victory; but a mixture of relief and happiness coloured by a profound sense of grief which had been held at bay for years: grief at the sight of a wretched policy causing damage to thousands of damaged, frightened people; grief at the obvious popularity of that policy; grief at the thought that my country could behave this way. Beyond all this, I understood at last the real privilege of having the freedom to dissent, and the support of family and friends to withstand the forces which made dissent painful but necessary.
My grandfather enjoyed wealth and social position on a scale I will never have: that was his privilege. My grandfather did not need to oppose any government policy; I chose to, and that has been my privilege. His privilege was comfortable; mine has not been. But if I had a choice of privilege, I would choose mine.