The Human Rights Omissioner and the Freedom to Starve

commission

Of all the decisions of the last 100+ days, under the Abbott government, the decision by George Brandis to appoint Tim Wilson as the Human Rights Commissioner has hit hardest home. I think this act, more than most, exemplifies the ideological undercurrents of the current government. I interpret this as an incredibly symbolic act of the government that will define their political motif for the next three years.

I like to think of human rights as something of an expertise of mine, and there is something profoundly jarring about this appointment. I will not go into detail about some of the more obvious issues around this, as this has already been reported: including his former role with the Institute for Public Affairs and its desire to abolish the commission; including the underlying antagonism  between Wilson and the President of the Commission Professor Gillian Triggs (having met and interacted with both Wilson and Triggs, my read of that dialogue hints at a deeper animosity). I’m not even particularly bothered by his politics in a broad sense, and I will visit that idea later on.

Such a model will only serve to entrench those behaviours, and push the state and its use of force more towards an oppressive model of governance. It is an act of omission rather than commission.

Serving the State or the People

What I am most dismayed about is this one statement: “I am looking forward to the challenge of reasserting the importance of human rights and advancing the government’s freedom agenda,” made by him in this interview. In that one statement he has revealed a significant disconnection between how he understands the role and one of the nominal functions of that office.

The reason that this should be worrying is because human rights are principally doctrines of international law. They emerged because they sought to curtail the gross abuse of state power over the lives of their citizens in response to the horrors of the genocides of World War II. They are designed to keep a state government to account and to draw a line around what they can and cannot do towards their subjects. Pursuing the government’s agenda, and keeping the government in check are mutually exclusive tasks because they constitute a conflict of interest. So in that one statement, Wilson is effectively saying that he thinks his obligations are more to the state than they are to the people.

When questioned by Naomi Woodley about his recent appointment and his position on asylum seekers being detained in Manus Island and Papua New Guinea, he effectively brushed off the question and instead asserted his intention to repeal Section 18C of the Racial Discrimination Act. In that one statement he effectively noted that his first interests were not towards the thousands of people enduring inhumane living conditions, but seeks to support the interests of public officials who have reasonable levels of power to begin with. It is a clear example of his particular predilections aligning more with the interests of the governing elite than challenging the regimes they create.

It is a clear example of his particular predilections aligning more with the interests of the governing elite than challenging the regimes they create.

This is indicative of a government that is driven by its ideological assumptions. It has no interest in moderating its agenda because it seeks to profoundly change the political landscape to match the vision of its utopia. Time and time again, we are seeing the politics of minimalist government and retreat from the market, all in the name of waste cutting and freedom. It might be okay for an opposition to adhere strongly to its ideological guns, if only to challenge the government. However, it is a perilous position for a government to adopt because they must represent the entirety of the public, not just the ones that voted for them.

Minarchist Utopia

The reason this is very concerning is because states remain one of the most powerful institutions within modern society. They maintain a monopoly on the legitimate use of force, and so its notion of justice will often see how that state structures its many organs to maintain and provide for justice. The use of force in the Australian context defaults typically to police powers, and the limitations of their powers

Brandis has effectively stated that the appointment was specifically to change the politics of the commission, concerned that it had narrowed its agenda significantly. He noted that there would need to be an emphasis on the freedom to speech and the International Covenant on Civil and Political Rights (ICCPR). There was no mention of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is not surprising but it is troubling.

The ICCPR and the ICESCR are designed to be two halves of the same whole. The former is a doctrine designed to vaunt individual freedoms while the latter is a document designed to direct states towards providing the necessary welfare to achieve those rights. They are in fact the manifestation of the ideologies of the USA and the USSR brought together to create a more holistic doctrine of rights alongside the United Nations Declaration of Human Rights (together, all three are considered to be the International Bill of Human Rights).

It is entirely ironic that Brandis is touting Wilson because he will expand the agenda of the commission only by focusing it on one half of the discussion of rights. A commission that vaunt the ICCPR would emphasise the rights to physical integrity (right to life, freedom from torture, and slavery); rights of justice (presumption of innocence, procedural fairness, habeus corpus); individual liberties (freedom of movement, religion, thought, speech, assembly, association); and political rights. However, a commission that then also ignores or omits the ICESCR would overlook labour rights, social security, rights to family life (children’s rights, parental rights, and reproductive rights), standards of living (clothing, food, shelter, and water), public health, public education, and the right to participate in public life (art, culture, and science).

This is the classical libertarian playbook, promising freedom from unwanted state intervention and the freedom to starve. It is a paradise fit for become a paradise fit for Ayn Rand or Gina Rineheart.

Police Powers and Human Rights

Any rights-based organisation that aligns itself with the state tend towards a view that the role of government has a role of keeping the peace and not interfering with the lives of its private citizens. Libertarian visions of justice usually default to Nozick’s vision of the night-watchman state. It is a view that suggests that the proper use of the state monopoly on force must withdraw from the private affairs of people, meaning that the state should only interfere to restore the peace, to prevent violence, and to enforce the private contractual arrangements between its citizens.

Putting aside the issues of disproportionate bargaining capacity of individuals and corporations (or even powerful people), there is a very worrying issue in relation how a libertarian view would frame police powers, being solely towards the maintenance of law and order. Such a view would emphasise the role of the police as a para-military force, designed to subdue public dissent in the name of public order; particularly where that disorder interferes with the market. In such a situation, police powers are emphasise in any type of public action deemed disruptive, such as curtailing rights to protest in Tasmania, police breaking union blockades in Victoria, and police brutality at Mardi Gras in NSW. Not to mention Wilson’s attitudes on the Occupy Movement and their right to speech.

I have already spoken before about the distinctions between acts that are corrupt and acts that are oppressive in the context of police culture. A human rights commission that is shifted towards a more ‘law and order’ model of police culture, rather than a ‘police service’ type of model will be more permissible of patterns of violent behaviour as being acceptable in the name of the public interest. Such a model will only serve to entrench those behaviours, and push the state and its use of force more towards an oppressive model of governance. It is an act of omission rather than commission.

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Condoms Are Not Enough

Earlier this week Simon Copland launched a salvo at anyone that dares to engage in risk-taking sexual activities. While the underlying message of safer sex is necessary after the sharp rise of HIV transmissions this year, particularly in the 20s demographic, the overly simplistic message is not going to address the underlying problems. Nic Holas later published a counterpunch in response, which he outlines such an approach is stigmatising. I take the issue further, and it is something I have commented on before.

Condom use is still the best means of preventing the transmission of most sexually transmissible diseases, to the point that most of the sexual health sector would encourage its use even amongst long-term committed relationships. What Copland’s message does not do is engage with the broad number of psychological and social issues that inflame people’s desires around risk-taking behaviour. It is not like condom use is not a message that isn’t already out there.

Even though condom use plays an important role in safer sex, an over-reliance on it shifts the issue away from the issues of desire and aversion, and does nothing to speak to the underlying causes of risk-taking sex. The implicit message is one that equates risk-taking sex and aversion to condom use to stupidity, rather than trying to grapple with the harder question of why people pursue it even with the knowledge that there are potential dangers.

There are multiple studies that have sought to find out the answer to this question. Some of the best scholars on this subject include Michael Shernoff (author of the book Without Condoms) as well as other authors like David Moskowitz and Michael Roloff. What this research shows, among other thing, is that desire is a powerful drive that isn’t incredibly rational, and that this is why simplistic messages of condom use doesn’t enter people’s thinking when influenced by incredible sexual appetites; especially when that is compounded by drug or alcohol use.

There are a great number of underlying motivations that complicate people’s thinking, some of those include a sense of distance from the impact of HIV, a sense of invincibility in youth, a desire to embrace a sexually liberated lifestyle, or even a sense of stifling dread that they will eventually contract HIV and thus leading them to giving up on trying. While none of these should be seen as justifications, they do speak to the fact that human sexual psychology is incredibly complex, and therefore no single one-stop solution will work completely.

So any approach that fails to grapple with these complex issues relegates the legitimacy of those desires into the taboo. When something becomes taboo it becomes shameful and stigmatised. More, the denial of these desires creates a sense of forbidden fruit, and that tends to excite and inflame those desires. When taboo behaviours have no opportunity to discuss those desires publicly without shame, those discussions go underground.  It is little wonder that MSM who are hungry for this type of risk taking behaviour are finding ways to meet in a discreet manner outside of the gaze of a disapproving public.

By making it harder for people to speak candidly about their experiences, their acts, and their risks, it actively discourages people to approach and access public health services when they do. It means that people who don’t normally partake in risky sex acts, or perhaps indulge in one after normal judgment is impaired by alcohol have a huge disincentive for approaching sexual clinics for services like PEP, or even PrEP.

So what is the solution? There is no single solution, but to start it’s best to think in terms of safer sex, (rather than safe sex). No sex is completely safe, and so any approach to condom use must be accompanied by a humanisation of desire and transmission. STIs are fundamentally a human problem, and if we only approach it with only a clinical solution we begin to dehumanise the people involved.

Silence leads to erasure, victim-blaming, and a breakdown of community.

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The Gathering Storm of Diplomatic Catastrophe

Taken from Wikipedia, part of public domain.Australia is facing one of the most significant diplomatic crises in the last few decades, and there is almost no significant reportage of this impact. The first three months of government has seen a spectacular cavalcade of international incidents that is putting Australia in an incredibly fraught position. Significantly, there is currently a very insular account of international politics that is currently being trotted out by many of the media outlets, and if you were to take it at their word you might be forgiven for imagining this international furore is nothing more than a spat over phone tapping.

There are three policies and responses that are currently impacting Australia’s international relations, which are namely Australia’s immigration “turn back the boats” policy, Australia’s current climate policies, and Australia’s diplomatic activity through Julie Bishop and Tony Abbott. Both the previously mentioned policy positions are alienating Australia from the Asia-Pacific region, and Australia’s subsequent so-called ‘diplomatic’ activity is aggravating already delicate issues. While this might not be on the scale of the Cuban Missile Crisis, Australia will see itself caught in the middle of any escalating Sino-American tensions.

Australia’s policy on immigration and climate change are subtly and overtly affecting our foreign relations: our immigration policies are casting Australia as xenophobic, while our climate change policies are characterising us as a potential threat to national security.

Policy Failures on the Environment and Immigration

For a more nuanced take on Australia’s recent actions and how they are impacting upon our relations with Indonesia, I would direct you to this excellent analysis. The points to take away from this analysis is that the “turn back the boat” policy has incensed Indonesian national pride by undermining Indonesian sovereignty; it also highlights the significant impact that cutting foreign aid has had.

Australia’s climate change policy is an increasingly an issue of foreign policy, particularly as connections between climate change and security become manifest.

The other issue is Australia’s climate change and environmental policies (or lack thereof). Australia’s climate change policy is an increasingly an issue of foreign policy, particularly as connections between climate change and security become manifest. Climate change will have two big impacts on security, the first of them being the rise in ocean levels. To understand the geo-politics of these changes, I’d like you to look at a comparison of the Rising Sea maps by Natural Geographic. While the projections of ocean-level increases are variable, these maps are pretty reasonable medians compared to most projections I’ve seen. They are sufficient for our purposes here. You can get a broad sense of the way it will affect highly populated areas, and not to mention the impact it will have on the Pacific Islands, many of which may become entirely submerged like the island nation Kiribati.

If you compare Australia to South-East Asia, you will see that the ocean level rises will be particularly devastating to some of the most heavily populated areas in South-East Asia. These changes will put vast swathes of territory underwater and displace massive numbers of people. Comparatively, Australia will have some significant coastal impacts, but the principle population centres affected are coastal South Australia and the Murray-Darling basin. Agriculturally speaking, the creation of a permanent inner sea for Australia might actually be beneficial (please do not read this as an endorsement of sea-levels rising, merely an observation that on the balance of impact Australia will have some relative gains).

However, the real impact of global warming is how the impact on regional stability and security as hotter temperatures affect water cycles. Global warming’s impact on water cycles is phenomenal, from its impact on glacial waters in the Himilayas (a source of water for much of south-east Asia), to desertification in the Middle East. When sources of water dry up, and the land becomes more arid, there is a significant drop in arable land. Beyond this, as global temperatures increase, the frequency and potency of storm surges increases (see the 5th IPCC report). This means that storms are more devastating and more often, and flooding tends to be larger and more powerful. The issues on this for human habitation is not just the destruction of homes, but the stripping of topsoil necessary for arable land. It is these impacts through a shaken water cycle that will be most relevant to Australia’s domestically agriculture, far more than changes to ocean levels.

There is another angel for Australia, as both ocean levels and increased aridity are triggers for mass migrations, meaning global warming has a consequential implication for regional stability and security. It is for this reason, that Australia’s climate policies must be inherently linked to Australia’s foreign policy, as our stance and our pollution begins to jeapordise our neighbours’ very existence. Australia’s current policy regime smacks of Western exceptionalism, and there is little wonder why it leaves a bad taste in the mouths of our Asia-Pacific neighbours, particularly in light of Typhoon Haiyan.

…both ocean levels and increased aridity are triggers for mass migrations, meaning global warming has a consequential implication for regional stability and security.

Geopolitics of Asia-Pacific

Australia is in a precarious position diplomatically in the Asia-Pacific, by virtue of its the geopolitics of the history of the region. Australia’s three most important Asia-Pacific neighbours are Indonesia, China, and Japan: Japan and China constitute two (of four) of our most significant trading partners. To give you an idea, allow me to refer to an earlier article of mine where I explore Australia’s energy market relationships with China. Our foreign relations have also been markedly affected by the variable political stability of the Pacific Islands, and the regional stability of South-East Asia.

The defining historical attributes of Australia in the context of Asian-Pacific relations were fomented during the Cold War. Japan was westernised in order to provide a principle bulwark against the expansion of communism into the pacific theatre, and when the Domino Theory became prevalent there were significant overtures to secure places like Malaysia and Indonesia as anchor points for containment. In fact, Australia’s relationship to Indonesia was a key component of that policy.

Jump forward to the 1990s, and Australia endured an Asian security crisis under the Howard government. Part of Howard’s victory was achieved through rhetoric of White Australian nationalism, which was both jingoistic and echoed alarmism of the Yellow Peril. This was best exemplified in Pauline Hanson’s maiden speech, which catalysed the Coalition’s jump to the right as they sought to recapture Hanson’s voter block (for a supremely excellent deconstruction of the Howard years Asian crisis, I refer you to Anthony Burke’s “Fear of Security”, Chapter 5). Moreover, during this period, the Asian nations observed Australia’s treatment of its indigenous population, as a bell-weather for populist attitudes of its non-white neighbours.

What we saw then, and what we are seeing repeated under the Abbott government, is a political ‘double-bind’ where the government of the day is incapable of diplomatic overtures because of its own ideological complicity.

What we saw then, and what we are seeing repeated under the Abbott government, is a political ‘double-bind’ where the government of the day is incapable of diplomatic overtures because of its own ideological complicity. The Howard and Abbott governments both achieved power partly due to racist polemics, and Abbott significantly touts a domestic mandate that stems from these positions. This means the Abbott government must present bravado in response to the posturing of our Asian-Pacific neighbours, lest it alienate its voter base.

The Gathering Storm

There is a gathering storm of military and political posturing happening in our region. There are numerous policies of encirclement occurring as China is emerging as the next superpower. This year alone, Russia has sought to politically encircle China, strengthening Sino-Russo relations while also forging alliances with its peripheral neighbours. The US is seeking to demonstrate its military presence by encircling China with fighter jets and stealth bombers, and also giving support to the disputed Taiwan island. Japan, China, and South Korea are becoming increasingly anxious over territorial disputes. There are huge games of realpolitik occuring, and Australia, like it or not, will be dragged into the centre of it.

Australia is strategically pivotal for for the USA, should any conflict break out between the USA and China. Any escalation of tensions between these two superpowers becomes of intrinsic interest to Australian national security. Very recently, China tested the limits of Japan’s naval territorial limits by sailing a war fleet through the Soya Strait, encircling Japan, and returning through the La Perouse Strait. This is overt military posturing, and since Japan has a pacifist military policy since its capitulation after WWII, it is struggling to respond to this gesture. Instead, we see the US responding by flying jet fighters unannounced over the Chinese controlled East China Sea, over territory that is disputed between China and Japan; because the USA must prop up the sovereignty of Japan as a bulwark against any Chinese expansion into the pacific theatre.

Because of its close ties to both China and the USA, this is not an issue that Australia can remove itself from, even in the fact of China rebuking Julie Bishop for ‘interfering’. Moreover, Australia is a temporary member of the UN Security Council, and must necessarily be seen to take actions towards issues that affect global and regional stability. Australia stands on the precipice of a diplomatic disaster, and the continued gaffs and alienation are only undermining Australia’s capacity to employ effective diplomacy. It is no surprise that even the most diplomatic overtures by Australian representatives will be met with hostility and suspicion. As far as the international stage is concerned Abbott has huge shoes to fill after the exemplary diplomacy of Rudd-Gillard and Carr; even Alexander Downer, a former Coalition foreign minister, is casting aspersions to the government’s diplomatic competence.

Australia’s policy on immigration and climate change are subtly and overtly affecting our foreign relations: our immigration policies are casting Australia as being xenophobic, while our climate change policies are characterising us as a potential threat to national security. 

Queer Technologies and Reproductive Rights

The issue of Zoe’s Law (2) remains unresolved. Three sessions of parliament have passed where the issue has been debated. I was a member of the audience in that parliament for the last two, along with a large contingent of protesters against the motion.

One of the issues that has come up around my participation was why I felt this issue was a queer issue. I thought I would take the time to explain myself on that. While I think that these matters are primarily an issue for women, they are part of a broader narrative of queer resistance against the medicalisation of bodies and bodily autonomy. For a really good contemporaneous example of this conflict, I would refer you to the opposition against medical intervention of intersex children – it is a similar refrain that homosexuals fought to have their sexuality declassified from being a mental illness 30 years ago.

Women should hopefully find allies on this issue within the queer movements, and I encourage women to embrace this issue as an intersectional one, to oppose the medicalisation of sexual bodies.

Queer Technologies

So much of the history of the queer movement has been around challenging medicalised notions of sex, sexuality, and gender, and shifting them more towards a framework that is about actualisation. By this, I mean that these struggle seek to make the experience of personality superior to the experience of embodiment, and using a variety of technologies to help change, control, and remodel our physically lived experiences to suit the designs of our personality. While the most obvious example of this relates to the use of hormones and surgery to assign and reassign sex, issues that relate to the regulation and control of reproductivity are also part of that broad spectrum.

In many ways, this struggle is directed towards the way we understand the practice of medicine, and various technologies within its purview. It seeks to move medical practice away from normalising bodies towards a position of liberating those bodies instead. That is, so much of queer resistance is against a medicalisation of sex, sexuality, and gender. It is against the co-option of medicine and science to construct our bodies in a manner that is useful only to patriarchy and heteronormative ideas.

[Queer Resistance] seeks to move medical practice away from normalising bodies towards a position of liberating those bodies instead.

Reproductive technologies are a subset of what I consider queer technologies because of the way they remove the constraints of biological determinism. They challenge traditional notions of sex, gender, and sexuality. They reconfigure them from serving reproduction, to serving a broader range of agendas, including identity, pleasure, and power.

For women, intersex people, and trans people (amongst others), queer technologies are granting autonomy over our bodies, that they might be shaped in a way that conforms with their desired experience of that body. Thus, I consider the pill as one of the world’s first queer technologies, because it helped precipitate the sexual revolution by granting women control over their reproduction.

The Medicalisation of Bodies

Medicalisation is a process that uses medical expertise and knowledge to render phenomena of living down to its basic biology and physiology.

Medicalisation is a process that uses medical expertise and knowledge to render phenomena of living down to its basic biology and physiology. Our distinctiveness is described less in the context of social characteristics, and more in terms of anatomical and biological ideas. In doing so, medicalisation tends to view difference and variation in a very pathological manner, because definitions of ‘health’ refer frequently back to standard and normal models. Consequently, medicalisation is actually counterposed with legal notions of personhood, because it actively seeks to move away from social predicates of being towards medical ones.

That is, the law is itself a social construction. It is limited by an issues called the fact-value distinction, which means that any issue before the law must distinguish between empirically observed matters (facts) and what those facts mean for society (values). Because it is almost impossible to determine what we ought to do based on what has been observed, the law must refer to social values to give those facts meaning. Thus the law is a fabric of social values, which gives meaning, agency, and power to a variety of things and interactions that happen around us.

More importantly, the law must reduce complex ideas down into simpler ones. The law is inherently reductive because it struggles to cope with ambiguities. Not only can thousands of dollars depends on an interpretation, but judges are required to return a definitive interpretation. Leaving room for ambiguity only serves to undermine a piece of legislation. Check out my Beyond Binaries policy brief for how many of these issues play out, even under a legal framework that seek to be actively inclusive.

The Carriage of Personhood

In the instance of foetal personhood, the above-mentioned issues are doubly troublesome. On one hand it personifies a foetus, and on the other hand it medicalises a mother. That is, it gives a foetus the status of a personality, and it reduces a mother to her caricature as a uterus. She is no longer a mother, but a carriage for another person.

The problem here is that this law is conflating personification with the ascription of personhood. Personification is understandable, because mothers and parents are neurologically wired to bond with their children, and humanity has historically inscribed human characteristics onto all manner of things. Even babies are capable of recognising faces, revealing that it is something of an innate skill.

However, the reason that personification must be distinguished from personhood is because one has significant social consequence. Personhood imputes agency through entitling an entity with a suite of legal rights. Agency is a crucial component of the law, because it relates to actions and agendas, not merely philosophies. To grant personhood is to grant agency to an entity. It means that that entity has the capacity to impact upon and interact with the law.

Children are given increasing amounts of agency as they mature, until they are recognised by law as being responsible for their own choices. This is another reason why it is important to allow personhood to be dependent on birth, not merely the appearance of humanity. Children may be dependent on their parents socially speaking, but a foetus is dependent for its very existence on its mother. A society can remove an infant from the custody of its mother if it deems it to be in the best interests of that child. However, the law only permits medical intervention to remove a foetus from a mother in situations that are medically justified.

Bodily Autonomy

This brings us back to my original position. These shifts Zoe’s Law (2) proposes would carry the unintended consequences of medicalising mothers and personifying foetuses. Moreover, granting personhood to a feotus grants them agency that would contrast that of the mother’s.

This is incredibly insidious, by medicalising the mother and personifying the foetus it increases the ambit around what justifies medical intervention. We have already seen one instance where a mother’s was entirely reduced to her capacity as a uterus, completely disregarding her status as a person. Moreover, external forces had to act as proxies for the feotus in order to act in this way. For these reasons, and for all the reasons I previously articulated, no law should recognise the personhood of a feotus.

Women should hopefully find allies on this issue within the queer movements, and I encourage women to embrace this issue as an intersectional one, to oppose the medicalisation of sexual bodies.

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Cutting the Umbilical Cord Between Church and State

AngelusProtesr

This Thursday, I will be participating in a protest before the NSW State Parliament, where a bill is being proposed that would make amendments to the Crimes Act, called the Crimes Amendment (Zoe’s Law) Bill 2013 (No. 2). It is euphemistically called Zoe’s Law (2) because it refers to the tragedy of the posthumously named Zoe, and is the second time a variant of this bill has been introduced to NSW Parliament. The substantive feature of this law would be the recognition of legal personhood of a foetus. This shift in legal definitions has a number of effects, which would significantly impact women’s rights, particularly around issues of child-birthing and bodily autonomy.

Although this is an issue I am profoundly passionate about, I had until now refrained from commenting. Partly because I do not identify as a woman, but also because far better women commentators were already weighing in on the issue and I feel I have an obligation to hear their view points before I formulate/refine my own.

However, the protest is drawing nigh and I was roused to significant anger this morning when it seemed that NSW Parliament were going to debate the bill today (until it wasn’t). To that end, I wanted to comment on the matter, not from viewpoint of being a feminist (even though I count myself as one), but as a legal scholar. I therefore seek to address the fundamental question at the heart of this challenge, which depends on the point at which the law recognises a subject as a legal person.

Ultimately, my objections refer back to the significance of legal personhood, and the immense problems that arise in extending that status onto any entity that does not have a separate existence from its mother. While it is incredibly understandable that a mother would want to have some manner of public recognition for being deprived of a child, doing so through a criminal process is one with far too many social consequences.

Outline of Zoe’s Law (2)

To outline exactly what the law would do, I refer to statements made in the Bill’s first reading, as introduced by Mr Chris Spence MP, as well as a statement provided by the mother of the eponymous Zoe.

The object of the bill is to amend the Crimes Act 1900 to recognise the existence of the foetus of a pregnant woman that is of at least 20 weeks gestation so that proceedings for certain offences relating to grievous bodily harm may be brought against an offender who causes the unlawful destruction of or harm to any such foetus as proceedings for grievous bodily harm to the foetus rather than proceedings for grievous bodily harm to the pregnant woman.

The above is the opening paragraph of Mr Spence’s first reading of the bill. He goes on to note that the bill as introduced is a refinement of the original bill submitted by Fred Nile, in that it would exempt any offences that would occur in the “course of a medical procedure, including medical treatment or anything done by or with the consent of the pregnant woman that causes harm to or the destruction of a foetus” and does not intend to impact upon a woman’s right to choose.

However, the very specific aspect of the amendment is schedule 1 [2] of the bill, which states:

For the purposes of the proposed section, an unborn child that is taken to be a living person for the purposes of applicable offences, is defined as a foetus of at least 20 weeks gestation or, if that cannot be reliably established, a foetus that weighs at least 400 grams (proposed section 8A (1) and (2)).

It specifically states that the intention of the amendment is to enable the law to recognise an unborn child as a living person, for the purpose of a range of applicable offences. Mr Spence claims that it would not create new categories of crime, but rather focus on the crimes of grievous bodily harm that are currently relevant to injury toward a foetus.

There have been some preliminary responses from a variety of legal experts who have expressed concern and dissent to these intentions of the bill. Roughly speaking, a variety of legal organisations and experts (except for lawyers known for being anti-abortion) have been consulted and come to an opinion that it is something of a Trojan horse for women’s choices. There is a legal conceit in Zoe’s Law (2), in that while it allows for exemptions from medical procedures that women choose to undergo (such as the termination of a foetus), the passing of this bill would nonetheless establish the legal category of “foetal personhood”. It would instate that foetus with a series of protected rights that would potentially come up by virtue of the fact that this foetus is now viewed as a separate legal entity.

One of the comments regarding this conceit is that because this entity would not technically have a category until the passing of the bill, it has not been included in any of the pre-bill analysis of the bill’s proponents. It is this exact same pattern that equivalent bills in the USA used to be passed as legislation. It is why such bills are being advocated for by anti-choice veterans like Fred Nile and current Attorney-General and former ‘Right To Life’ president Greg Smith. Among those, I would direct you to the responses written up in this article by Jabour in the Guardian.

For a good grounding in the background of the current legislative provisions as they apply around the legal recognition of the personhood of children being born, and how they intersect with crimes like manslaughter, I refer you to the review by the Judicial Commission of New South Wales.

Donegan’s Appeal and Legal Reasoning

One of the things that is seen as particularly compelling in this case is the public appeal by Brodie Donegan, which is regarded as convincing because Donegan is a self-professed pro-choice mother. In her view (and as articulated in the amendment), the provisions of the amendment would still protect women’s choices.

Rather than refer to specific passages of Donegan’s appeal, I will simply outline that it describes the way that Donegan experienced a highly traumatic event, and that Donegan ‘s experience of the still birth was one akin to having lost a fully realised child. A lot of her language speaks to visceral memories that are undoubtedly painful and extremely difficult to reconcile. That this loss has taken place in the context of an accident would likely exacerbate those memories and experiences. To these I can only sympathise with, even while I have no significant frame of reference to empathise with.

However, as a legal scholar, I am required to step back from these subjective experiences and ask whether these experiences should formulate a dimension of criminality. The important question being asked is not whether there is validity to Donegan’s claim or experiences, but whether these experiences speak to a significant truth or aspect of our society as a generalisation. While this bill would not directly seek to create new crimes, per se, it does expand the way existing criminal legislation interacts with unborn children.

The reason I treat this issue with some measure of skepticism is because to consider an issue before law it is necessary to identify what the relevant questions of fact are, as well as those questions of law. In the account detailed above by Donegan we see references being made to the fact these events occurred on Christmas Day, the interactions between the unborn child and he potential sister. All of these are appeals to emotion, designed to qualify the experience beyond a tragic accident where an unborn child was stillborn. If they are relevant facts, than any law that is made in response to them would need to include ‘happening on Christmas Day’ or ‘the unborn child had siblings’ as conditional aspects before the law became relevant. They are understandably personally relevant to the family in question, but legal reasoning must remain agnostic to them.

My argument against this amendment does not depend on this fact, because it would be disingenuous to do so. Clearly the arguments for this bill do not entirely turn on these issues, but they add an undercurrent personalisation that I think only serve to muddy the discussion. These are incredibly significant issues and cannot be resolved through emotional appeals.

The Autonomy of Being

The substantive basis for these types of claims, and in fact the point to which Donegan points to as the point at which this law should kick into effect, relates to the fact that currently levels of medical technologies can enable a foetus at 23 weeks to become a viable baby outside the womb. Proponents of the law will point to the status of a foetus at 20+ weeks, to indicate that they should be reasonably recognised as a separate body (see this video as an example).

In a first glance, it might make common sense to regard these entities as living persons. They share all of the apparent characteristics of babies, and can be made as a viable separate entity. It is around this particular test that the idea of the ‘born alive rule’ emerges, which is the legal test applied to births to determine whether the birth should be recognised as having personhood. It currently holds that a birthed human being becomes a legal person when they are able to breath independently from the mother, even if that breathing is machine assisted.

It is to this idea that the challenge of Zoe’s Law is levelled, reasoning that since technology can enable a foetus to survive at increasingly earlier stages, we should recognise earlier stages as being potentially viable. This is a false equivocation, because the born alive rule is a test applied after birth, irrespective of the period of gestation. Its premise is to identify viability after the fact, not seek to pre-empty viability in potential. For an extremely excellent academic response to this kind of challenge, I would refer you to Kristen Savell’s article in the Sydney Law Review.

She concludes that:

“the law should resist pressures to enlarge its understanding of personhood on the basis of some straightforward analogy between late-term foetuses and newborn infants. The comparable intrinsic properties of late-foetuses and newborns is not alone sufficient to warrant the ascription of legal personhood to foetuses. The conditions that make late-term foetuses resemble persons certainly include intrinsic properties but, until the foetus achieves separation, they also include the investments and attachments of the mother. Foetuses cannot become actively embedded in a social matrix and, to the extent that the foetus becomes situated in a web of relationships, this is only achieved through its mother. However, after birth the baby can become actively embedded in a social matrix irrespective of its mother. It is in this sense that the experience of individuated embodiment has substantive significance.”

What this means, and what I wholeheartedly agree with is the rebuttal that just because a foetus has the outward appearance of a natal child does not mean it should be entitled with the full suite of human rights. What I find inherently troubling by this particular line of reasoning is that it attributes personhood towards a body, but this says nothing about the really thorny question of whether that foetus has consciousness, or bears many other signifiers of socialisation that are also intrinsic qualities of being human. To ascribe those social qualities onto a foetus before it has become actualised as an independent person is premature (please excuse the pun, but I cannot find a better synonym).

Legal Construction of Personhood

From a much more broader theoretical perspective, I am deeply troubled by some of the implications of recognising personhood for any foetus that has not yet achieved independent existence from its mother. This is largely due to the way that the legal system interacts with medical bodies of knowledge, particularly around matters that have criminality attached, but are often insulated from sociological considerations, which specifically investigate questions of identity and personhood in terms of its meaning to society.

The very notion of legal personhood is a rather difficult one, because the legal system has taken what we consider to be rather essential elements of being and framed them into highly discreet categories. The problem is that our lived experiences and the realities of being a full actualised human are not able to be reduced so easily. Personhood is actually a complex of various socio-legal boundaries, each of which circumscribes a certain kind of social space with legal provisions. Each boundary represents some ideal of personhood or individuality, which is then framed as some kind of real thing. While I describe four spheres of personhood in this model, I will mention only the inner-most two as I consider they are the ones truly relevant when discussing this matter.

The innermost sphere describes those qualities of personhood we might regard as the ego, and here the Anglo-American tradition of law protects our rights to hold beliefs and ideas, and otherwise protect against psychological injury. The second boundary is effectively equated our body, and while the body encompasses the ego, the laws relevant to this boundary protect individuals against unlawful medical intervention, battery, and other violations of our bodily autonomy. There are other dimensions beyond this, which relate to matters like privacy, property, and other areas of our civil and legal personhood, but since most of those are not relevant for this discussion I won’t detail them. Suffice it to say, the notion of personhood is already mutable, and recognising the existence of a legal person that still exists within and is dependent upon another person for their existence causes a direct conflict of rights that is incredibly difficult to reconsile.

Ultimately, my objections refer back to the significance of legal personhood, and the immense problems that arise in extending that status onto any entity that does not have a separate existence from its mother. While it is incredibly understandable that a mother would want to have some manner of public recognition for being deprived of a child, doing so through a criminal process is one with far too many social consequences.

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The Heisenberg Messenger

There is a recent article that seems to have gone viral over the net. In it, the author announces that his upcoming book will allegedly substantiate that the figure of Jesus Christ was none other than a Roman conspiracy. Specifically that much of his identity and was little more than a fabrication of the Roman ruling class in order to subdue the Jewish dissidents. While I will visit the substance of this issue in brief, I will only do so to attend to a broader subject that this necessarily provokes. Usually I tend to accept that a repost is not necessarily an endorsement of content, however in this instance I saw a large number of those reposts contain positively validating messages. While I accept this is largely an anecdotal evidentiary point, I think how pervasive the issue is does not disqualify the need to revisit these issues.

Propagators of information should acquire some critical disposition to the content we reflect back to and upon our networks. [The] simple act of stating our position in response to content is the first step in separating the message from the messenger.

My main concern with the article was less to do with the content, and more to do with the rapidity that Atwill’s claim managed to take hold on popular imagination, almost in complete defiance of any valid scepticism. It is to this issue that I wish to address more significantly, because I think it speaks to the way we are absorbing and regurgitating stories via social media without any significant critical thought.

Thus, this issue provides an object lesson that necessitates a review of critical thought and our engagement with digital content. Effectively, I hope to cover some ground on being critical in the age of social media, particularly with regards to how and when we present content and the vicarious authority we lend it. It is one thing to find the article itself interesting and intriguing, but it is another to laud its content without critical reflection. I suspect that in many instances, this stands as a symbol for a desire to critique religion’s disproportionate influence on mainstream society, but done in a lazy way.

It was my observation that far too many people happily vaunted the claim on face value because it aligned with their world view or what they would like to see be truth. This is a traditional case of confirmation bias, where we accept claims presented to us because they confirm our disposition. Admittedly, much of what I will speak about is scarcely new, but considering a significant number of the people I saw posting are people with levels of university education, they should be exemplars of scepticism rather than victims of a media cycle. Education, particularly higher education, is (as a friend of mine put it) vaccination against shallow thought.

The Historicity of Jesus

This discussion refers back to questions of the historicity of Jesus, which has a number of subtle historical traps that may catch people not invested into historical studies. This is because there is a popular understanding of this figure compounded by depiction through religious doctrine; notwithstanding the validity and substance of any historical and archaeological evidence that speaks to his existence. Rather than weigh in on this issue at length, as I am neither an expert nor wishing to focus on that issue itself, these matters have been debated with great alacrity by Robert M. Price, Bart Ehrman, and Richard Carrier, all of whom have debated prominent Christian apologists.

For now, it is sufficient that I demonstrate that in making claims as to the existence of a figure that is known as Jesus, we are really attempting to position ourselves against or alongside a number of distinct claims. From a purely historical point of view, these include whether there was an actual historical Jesus, what we can know of him from evidence, whether he was actually some manner of moral philosopher, what historical acts can be attributed to him, how much of his attested philosophy and religious ideology can be verified as originating from him, and lastly how much of his attested cultural impact can actually be attributed to him.

The historian would likely stop at these points, where the theologian would being to ask questions about whether he was of divine nature and so forth. From an historical point of inquiry, one need not necessarily dismiss supernatural claims off hand, for these claims are attendant and significant in the popular understanding of this figure. They must be weighed according to some rational method. If we consider the stories of Jesus’ miraculous acts as a type of story, then we begin to ask whether there was any kernel of truth to their legend, and how much of their story has been magnified or mythologised by subsequent interpretations and iterations.

Atwill’s Claims of Conspiracy

[E]ven if there was a conspiracy, the odds that the conspirators produced a written confession and the confession survived until the present day (when few manuscripts from that period have) and has only just now been discovered… multiple the improbabilities out, and a Secret Mark-style forgery is more likely.

Atwill’s claims are nothing short of extraordinary. It makes an allegation that one of the most thoroughly studied historical figures was the direct intentional fabrication of a contemporaneous group of elites. While some have suggested that this claim is no more extraordinary than the claim than his depiction in the bible, this kind of misses the point.

Technically, if I was presented with a dilemma of Roman conspiracy vs. literal biblical account, Occam’s Razor would favour the conspiracy. This is simply because the claim of ancient conspiracy is a less extraordinary claim than the claim of miraculous powers. However, this is not the dilemma that is actually being presented, because the claims of miraculous powers are not actually juxtaposed against the claims of conspiracy. It is actually a two-part claim: it firstly refutes the existence of an historical Jesus (either entirely or partially) at least as far as the biblical account is concerned; and then goes on to propose that the biblical account was an intentional act of deception, which achieved wide-spread popularity.

Chris Hallquist provides a succinct response to why we must be sceptical of these claims, in outlining that even taking into account biblical bias amongst theological scholars, that there is nevertheless something of an academic consensus that Jesus probably existed. Moreover, those that doubt his existence do not posit a claim of conspiracy of the type that Atwill claims. He rounds off his rebuttal thusly:

[E]ven if there was a conspiracy, the odds that the conspirators produced a written confession and the confession survived until the present day (when few manuscripts from that period have) and has only just now been discovered… multiple the improbabilities out, and a Secret Mark-style forgery is more likely.

When we view the claim this way, it is much easier to see why this is actually an extraordinary claim. It would require unprecedented historical evidence, of a kind that is elusive and unlikely in its own right. As an immediate step in encountering this extraordinary claim, one of the first questions that we should be asking is who is making this claim, and whether they have any expertise to do so. In the instance of Atwill, a basic background check would reveal that he has made claims like this before, and that they have been responded to with significant criticism. Atwill seems to have no notable academic qualifications, and is not attached to a university. All this paints a picture of someone making a radical claim that is not only divorced from an academic consensus, but without any significant grounding in the field itself. This further multiplies the aforementioned improbabilities cited by Hallquist.

NB: The above is not to suggest that universities are the only persons qualified to speak on subjects, but as institutions they remain our best at ensuring that those who lay claim to academic-levels of expertise are justified in that claim. They are useful shortcuts for us in assessing someone’s ability to make claims.

Critical Social Media

It is at this point, that I now return to the question of our engagement on social media. Social media is not an environment that readily lends itself to the type of critical engagement that we might accept in academic circles. Many of these issues are magnified by the nature of social media, where we tend to inhabit echo chambers.

Most of the major social media platforms have inbuilt mechanisms that allow us to filter out information that does not resonate with our view point, and elevates ideas that do resonate instead. This creates a reinforcing social sphere that reflects back to us positions that vindicate our own expectations without credible challenge. As more and more people transfer their consumption of digital knowledge from traditional media platforms onto the loosely collaborative fora of the internet, we are increasingly exposed to a new type of media circus, one with little accountability for content, its veracity, or its framing of message.

Part of this reflects a growing fallacy regarding internet behaviour, which imputes the existence of a digital native: people whose lives have been surrounded with online engagement to the point that they natively inhabit its virtual spaces. However, there is a growing body of evidence that shows that we are observing the emergence of a generation of people who intuitively use media, but lack more than a superficial understanding of its medium. Similarly, there is similar evidence that shows that while a growing number of students know how to source content for their academic writings, they do not know how to vet that content for veracity properly, or if they do simply fail to do so.

I am beginning to come to the position that we have some manner of obligation in the content that we share and re-share.

It is for these reasons that I am beginning to come to the position that we have some manner of obligation in the content that we share and re-share; particularly for those who are not merely consumers of digital content, but creators and professors of the same (I use the word profess here to mean: to make a claim of knowledge). As our media platforms become increasingly synonymous with individual presenters, our society begins to lose meaningful distinction between the message and the messenger. Our very personalities frame and contextualise any content, and as we acquire public voice, we lend veracity to the things we present. For these reasons, it is in our interests to separate those ideas that we would simply share for consideration, and those we would profess or propagate.

While I would be loath to propose some kind of artificial checklist of actions to take I think it is meritorious to consider the idea of a digital ‘professor’. Propagators of information should acquire some critical disposition to the content we reflect back to and upon our networks. Increasingly, I have come to sign any content that I am merely presenting with the statement “presented without comment” (or PWC on twitter) to signify that I am not authenticating or acknowledging its positions. I think this simple act of stating our position in response to content is the first step in separating the message from the messenger.

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Marketising Climate Change

NRM-Clusters-Map

In this article, I review the newly formed Coalition’s agenda to repeal the carbon pricing scheme implemented by the Clean Energy Bill 2011, and the policy program of the Clean Energy Plan. These actions are subsidiary to a broader political attack upon the doctrine of State-based initiatives to regulate climate change. It is perhaps most clearly manifested in their initial actions to repeal the Clean Energy Bill, as well as abolishing three agencies incentivising renewable electricity production in Australia: the Clean Energy Finance Corporation (CEFC), the Climate Change Authority (CCA), and the Climate Commission (CC).

That the political debate has moved on from the question of climate change to its solution is worth interrogation, but not within the scope of this article. Instead, by focusing specifically on the interactions of these agencies with potential energy markets a single thread of the debate is analysed debate while contextualising the relevant political components.

…should the policy platform produce the results anticipated by the Coalition, it would be remiss to suggest that it was due entirely due to market forces

Political Climate

Broadly speaking, the political division over climate change falls upon the Clean Energy Plan. The polarisation centres not upon climate change and denial, but the application of political ideology as to the best means to address it. The Coalition’s policy reflects a neoliberal scepticism towards government regulation, deferring instead to market-mechanisms. In counterpoint, the Clean Energy Plan exemplifies a rejection of the market alone as the means for resolution, and places incumbency upon the State to induce sufficient change.

The Clean Energy Plan is and its attendant carbon pricing is a policy program responding to anthropogenic climate change, synthesising the disciplines of environmental sciences and political economy. It emerged after a failed attempt by the Rudd government to secure an Emissions Trading Scheme, and a subsequent compromise through the hung parliament under Gillard. It implicitly entails a classical economic approach that reconciles government agenda with environment concerns, and attempts to model its program on economic rationality. This necessarily filters the debate of climate change through economic discourse, by emphasising the nature of emissions as externalities. Implicit in this position is a contention that the market cannot respond rationally to climate change, and requires government intervention (see such claims as made in this book). Typically such critiques claim that market mechanisms cannot internalise emissions because individual choices within the context of market forces are subject to profit seeking over public interest.

The counter-argument lauds the capacity of market forces in selecting for environmentally sound practices: as the externalities of the environment increase social costs, and as these demands become increasingly urgent, industry and technology are able to respond with a solution by sheer dint of the demand. In this light, the Clean Energy Plan has been criticised on a number of fronts, including an inability to realise its ideals due to economic sleight-of-hand, which prevented incentivisation; another being a failure to engage with the populace on the significance of the carbon price, beyond how it impacts on the daily cost of living. These two arguments are exemplar of climate change denialism that rejects the potential thread of a Malthusian catastrophe, as exemplified in the works of Lomborg. These critiques effectively accuse the Clean Energy Plan of environmental authoritarianism (for example).

Power Dynamics

Having laid the groundwork of these political divisions, the contentions between market-mechanisms and State-based mechanisms become much more apparent. The ‘Carbon Tax’ is easily the most visible component of State-based instruments, and the principle focus of the Coalition’s actions. However, where we see additional complications and nuances on these issues is the Coalition’s focus on the abolishment of the climate change agencies.

Firstly, the CEFC’s principle mandate was the subsidisation of renewable electricity innovation: in the last year the CEFC managed to invest $560 million in projects, including the Moree solar farm and the Taralga wind farm. Moreover, the CEFC has laid claim to having encouraged an additional $1.6 billion worth of private investment towards clean energy projects. Incoming Climate Action Minister, Greg Hunt, has critiqued the CEFC of being a green hedge fund, “borrowed in taxpayers’ name for investing in speculative ventures” . It is worthwhile noting that such actions and positions are perfectly in line with the neoliberal sentiment of deregulating interference with the market.

The predominant form of electricity production in Australia is coal, comprising 77.2% of the country’s total electricity production

However, the issue is not as reductive as there are other political and commercial interests relevant to these changes; not the least of which is the significance of Australian coal. The predominant form of electricity production in Australia is coal, comprising 77.2% of the country’s total electricity production in 2003. Though different States and Territories have specific energy policies, the aggregate cost of most electricity production is based on the price of coal at the power station: coal also constitutes one of Australia’s principle energy exports to China. So the question remains that if State-based mechanisms are removed to incentivise change and Australia is economically dependent on the coal industry, will market-mechanisms alone be sufficient to achieve the government’s mandated renewable energy targets for 2020. If critiques hold true, then deregulation will simply expose a vulnerable environmental system to greater intrusion by market mechanisms, which cannot redress the issue. If the neoliberal vision holds true, then the market should reach a point of equilibrium as the burden of environmental degradation affects consumer choices.

There are two principle issues that will significantly play into this: the first is the cost of peak coal production, and the latter is the tipping point of solar power energy production. Currently there are a series of predictions suggesting that the production of solar powered electricity may become equivalent to conventional fossil fuel production. That Germany has taken a significant lead in adopting solar powered energy production, and thus growing the global solar market. There is also predictions of the decline of the global coal market, with Citi analysis predicting coal consumption in China could peak as early as 2014. Equally compelling, there is some evidence that renewable energies are gaining confidence in the US market, to the point of being considered reliable. This competition of solar and coal energy markets is made even more pertinent in Australia, as the Climate Commission revealed a significant uptake of solar panels.

To suggest these changes signal the success of the neoliberal vision is flawed, particularly in context of these competing energy markets.

To suggest these changes signal the success of the neoliberal vision is flawed, particularly in context of these competing energy markets. Neither of these energy markets has changed significantly without some form of government intervention. In 2012, the Chinese government invested $68 billion into renewable energy, making it a leader of that investment. In comparison, Germany and its production of solar power is more difficult to determine. At first glance, Germany seems to depict a narrative of a staunchly pro-nuclear power leading changes to become the world’s top photovoltaic installer. However, some later commentary predicts the burst of the solar bubble, and Lomberg specifically critiquing the policy project as being economically unsustainable. While a genuine economic critique is far beyond the scope of this essay, it is reasonable to say that neither the reduced cost of solar power in Germany nor the peak consumption of coal in China are purely the consequence of market mechanisms.

Due to the vagaries of both China and Germany, it is far too early to predict the success or failure of the Coalition’s policy platform to respond to the issue of climate change through a high dependency on market mechanisms. Moreover, should the policy platform produce the results anticipated by the Coalition, it would be remiss to suggest that it was due entirely due to market forces, which are merely capitalising on opportunities produced through contrary political economic agendas.

Sound and Fury

In the last week, a bit of a controversial bombshell was dropped. Community Action Against Homophobia (CAAH) formally used the slogan of “Fuck Tony Abbott” as their byline. This has triggered a number of responses and all of them vitriolic. A lot of the controversy focuses on whether the message is appropriate, how the decision was made, and a raft of other issues. What seems to be emerging from this discourse is the more mainstream LGBTI communities express disaffection by the radical protest voice. The response from the radical queer groups is a complaint towards the mainstream saying they have become complicit with an oppressive regime.

I think this signals the start of a fight over which message is put into the public sphere, and who controls the message.

On Sense and Sensibility

I think it’s necessary to highlight some of these positions in order to get a full perspective. The opening salvo was fired by none other than Bryn Hutchinson, a former convener of CAAH, who attacked the by-line for being divisive and pointless. Rodney Croome added his voice, from his position in the Australian Marriage Equality (AME), saying that such dissidence will only serve to alienate any chance to communicate with the Coalition that now form the Government in seeking to persuade them in changing their minds.

In contrast, we have an interview with Cat Rose, one of the current co-convenors of CAAH, who proclaims the necessity of vigilantly opposing the government, by claiming they will inevitably be hostile to minority groups. Her position is to hold the government to account with a repertoire of contention. Another voice I would recommend on this comes from Tim Scriven, who deconstructs some these accusations, but ultimately refers to the need to agitate in a manner that is not complicit so as to effect change.

Knowing a number of people on both sides of this debate, I have heard a large range of opinions. The one thing I have observed as being consistent is the tendency for all arguments refer to a base claim on how best to achieve change. Inevitably, such arguments fall back on radical or mainstream positions, and whether to effect change through the parliamentary system, or whether change can only be achieved by imposing upon it from without. This is reflected in the articles above: both Hutchinson and Croome argue for a parliamentary method, while Rose and Scriven express suspicion of that process. From my observations there is a near-universal tendency of those taking a strong position to fall down on one side of the camp or the other (I found in critical reflection of my own position, that I am/was as much a subject of those proclivities). So I think what we are seeing here is an age-old Establishment vs counter-culture discourse.

Fundamentally, I think people’s opinions on this matter play so significantly into their political ideology that I am unconvinced that a rational approach will resolve the dispute.

Fundamentally, I think people’s opinions on this matter play so significantly into their political ideology that I am unconvinced that a rational debate will resolve the dispute. The slogan itself is merely a symptom of a deep divide between the main-streamers that have found some accommodation within the norm, and are now angry at being tarred with a radical voice, and those who have never been able to main-stream (whether by choice or capacity), and are demanding that their difference be accommodated all the same. Both sides are effectively coloured by a deep suspicion of a process that excludes them.

Having been on both sides of the fence at one point or another, I can sympathise with both sides, even while I don’t agree with every position argued. Both side make claims that either demonstrations or lobbying have been key or to shifting social attitudes on marriage equality in Australia. My issue with these claims is that they are almost universally anecdotal, and lack evidentiary rigour; and all those claims are incredibly self-justifying. I reject the notion that either group can lay claim to being the principle agent for raising consciousness on marriage equality in the Australian public.

Repertoires of Contention

This dichotomy correlates strongly with a growing body of research that has begun to identify some significant correlations to neurological states in relation to whether one elects a conservative or (little-l) liberal position. In brief, there seem to be a number of neurological conditions that predispose individuals towards either conservatism or liberalism, and this probably would carry over to the distinction between mainstream and radicalism, which are roughly similar dichotomies. Part of that research also seems to suggest that some of our predispositions become locked in based on our experiences during the formative years of early adulthood and late adolescence. For these reasons, I think that any message that seeks to bring in more people into its coalition must accommodate a plurality of predilections. This evidence shows that the Left is more successful when rallying support through positive and hopeful messages, while the Right is more effective at capitalising on messages of fear and anger.

This evidence shows that the Left is more successful when rallying support through positive and hopeful messages, while the Right is more effective at capitalising on messages of fear and anger.

There are also a number of individuals who just don’t understand the significance of the controversy, which see the attempts at disputing the message a waste of energy that should be focused on effecting change. However, a message is central to any social movement: it is a core element of any campaign, not just in terms of communication but in terms of its semiotics. That is, social movements emerge through the construction of a group identity. Symbols of the movement become important signposts used to delineate between “us” and “them”, politically speaking. An important part of coalition building is being able to successfully mediate these differences under a set of common ideals.

Whitebrook notes in Identity, Narrative, and Politics: collective identities are constructed through narrative means; Einwohner et al have elaborated upon this in Identity Work and Social Movements, noting that these collective identities are produced through joint action, negotiation, and interpretation. It is this ‘identity work’ that enables members of a social movement to construct a shared sense of identity and work together in collective action. Taylor et al have described three components of identity work in their text Feminist frontiers II :rethinking sex, gender, and society: namely boundaries, being markers of similarity and difference; consciousness, the framework through which participants struggle to describe the collective interests and identities in contrast to the dominant order; and negotiation, which refers to the various demonstrations of opposition to the status quo.

The strategies of building a collective identity are described by Bernstein in her book Sexual Orientation Policy, Protest, and the State. She notes that LGBTI activist movements differ to other social movements as one of their strategies is to emphasise sameness with the mainstream, even making tactical decisions about whether to celebrate or suppress their otherness. Of particular interest, both Harris and Meeker have highlighted instances where specific LGBTI movements sought to align themselves with church, state, and family or attempting to assimilate rather than subvert.

Collective identities for social movements require the aggregation of individual accounts of its participant members through this identity work: one of the mechanisms requires the sublimation of internal difference.

Collective identities for social movements require the aggregation of individual accounts of its participant members through this identity work: one of the mechanisms requires the sublimation of internal difference. As Lyotard has previously argued in his seminal work on The Postmodern Condition, and elaborated on by Einwohner et al, any attempt to solidify a movement’s collective identity means the collective identity must be negotiated among the participant members and towards the broader society. Bystydzienski and Schacht, in Forging Radical Alliances across Difference, state that this much necessarily be inter-sectional, arguing that identities are not discrete modules within an aggregation, but must be understood as intertwined with each other.

That is, identity work is a mediation of a group’s identity, where individual members come to internalise the symbols, values, and aesthetics of the collective identity, either by reconciling or rejecting the components of a collective narrative that are at odds with their own sense of identity. Understanding this issue is crucial to revealing the deeper issues at play around the conflicting social tensions underscoring coalitions of social movements. That CAAH has elected to use an unequivocally radical byline is one that has sent a message to the main-streamers that they are no longer part of this movement. Based on the commentary of the radical left, the impression that I get is one expressing that the mainstream have become deadwood in the fight against the Establishment.

Of Pride and Prejudice

On the question of whether the message is the right message depends on how you measure its success. As a message that is designed to garner public attention, it is incredibly successful, considering that it is a message that has been commented on by media and politicians alike. Whether it is a message that will successfully catalyse and mobilise people on the ground, I think it will probably fall short (though I am happy to be proved incorrect on this prediction).

Using the message as the byline transforms the statement from a meme to a symbol of the movement itself…

To properly respond, I would repudiate that the rudeness of message is the central issue, and actually a superficial point. However, by placing it as the by-line of the protest it is elevated from a pervasive sentiment into an ideal. Using the message as the byline transforms it from a meme to a symbol of the movement itself, a marker of inclusion or exclusion that participants must either accommodate or reject. It is a message that is incredibly polarising among the stakeholders in the marriage equality campaign, and notwithstanding the apparent contention over which group (CAAH or AME) should be the rightful custodian of the message (a debate in its own right), that these groups are openly at loggerheads hails the onset of greater divisions ahead.

Admittedly, these divisions haven’t emerged from nowhere: AME represents a powerful lobby group with a single narrow objective, and has been criticised for pandering to a privileged interest; CAAH represents a voice of marginalised groups that seek a wider reforms, and have been criticised for being divorced from the ‘real world’. The radical queer movement is likely to be increasingly empowered by this message, and angry at the mainstream for not falling in line with the rallying cry, while the mainstream LGBTI movement is likely to be increasingly disaffected by the message and become resentful of having to work to disassociate themselves from that message while trying to lobby parliament.

I think this signals the start of a fight over which message is put into the public sphere, and who controls the message. Lamentably, I think the louder more controversial message will begin to draw greater media interest. Very likely, we are going to see a set of communities divided against each other, rather than united against a government they wish to effect.

Update

Having published this article, I was subjected to some criticism. I am reproducing it here without attribution, as it was in a private forum. The criticism was one that argued that even if the above analysis is correct, then the worst case scenario is one that achieves no legislative change with the consequent of solidified a radical movement/community by ditching the “white picket-fence crowd”. Note, this confirms the position I stated earlier that the protest movement may be all to happy to dissolve their friendship with the mainstream.

To this, I disagree: the worst case scenario is one of deep alienation and division. It takes a false dilemma between the radical and mainstream and reifies that sense of division into a real division. It also shifts the emphasis on the purpose of the protests away from pitching a message to an external audience with the desire to effect change, and consolidating attitudes within an already insular group.

I think this is a bad idea, because it creates opposition when there does not need to be one. It shifts the site of contest into the middle of a group of people seeking to achieve a similar outcome, and possibly expending energies on both sides in ways that will undermine any mutual efforts.

By emphasising and endorsing the way that such a symbol excludes and others the mainstream, it reduces the political discourse down to an “us” and “them” mentality, and means the protest movement is adopting a siege mentality, depending explicitly on tactics of dissent. Such strategies mean that the social movement becomes static and inflexible, resisting any changes in the social consciousness. Worse, it entrenches dogma and makes it unassailable to criticism and possible discourse, becoming calcified. This makes the message less about communicating and more about reacting and iterating a staple of repertoires of contention.

In order for the movement to move beyond mere protest and counter-culture, the coalition building needs to incorporate and include greater diversity. A message that divides various communities into sides is a means to produce a social bubble by exclusion. It is a tactic of retreat and bulwark; albeit a reasonable tactic to survive a hostile and adversarial government.

However, the harder task of affecting change, or even changing consciousness can only be achieved by engaging with the public at large and communicating a message to them. In doing so, the message seeks to enroll a broader array of people that a movement doesn’t necessarily agree with. Historically, the instances of legislative reform on Marriage Equality were introduced under conservative governments, but because those governments were in coalition with a liberal party.

The first time it was introduced in the Netherlands occurred because Boris Dittrich (head of the liberal party in the Netherlands) demanded it as a concession to support the conservative party into government. A similar scenario was more notoriously repeated in the UK under Doug Cameron.

Expatriation under Abbott

This is an open letter written by someone else, her name is Leigh, and she is an expat from the USA. I asked her permission to reproduce this letter and she consented. I believe it is worthy of your attention. It is presented without comment.

An open letter to my Australian friends who are upset over the election results

Last night, when the election results were called in favour of the Coalition, I was at a housewarming party. The news broke and people expressed their grief in a variety of ways. There was cursing. There was drinking. There were calls for revolution and collective migration to Iceland, with a range of levels of sincerity behind them.

As someone who is in the process of migrating for partially political reasons (the state of American politics has never been the only reason I came to or continue to live in Australia, but it’s always been one of the top three reasons at any given time), watching this reaction makes me feel very strange. I feel like i have insider knowledge – or, perhaps, outsider knowledge – that many lifelong Australians lack.

First of all, expatriation isn’t all it’s cracked up to be. Yes, you leave behind some of the politics you abhor, and they no longer directly affect you as they did before. But you also inevitably leave behind friends and family, and as a result, you never really get to stop caring about the politics of your mother country, because they’re still affecting the people you love. Furthermore, you find yourself being affected by and caring about a whole new set of inevitably flawed politics, and for a while – possibly quite a long while – you have little to no ability to affect them in any way. It’s not a liberating feeling; you’re still carrying the same amount of weight as you once were, if not more. It’s just distributed differently.

Secondly, the Australian strain of democracy has a lot going for it. Because I cannot vote but I also cannot stop myself from caring about the political system I live under, I end up doing volunteer work for the Greens every election cycle. Partly, I support the Greens because I agree with many of their policies, but I also support them simply because they are a viable, progressive third party. I come from a system where third parties are a political impossibility; structural elements of American democracy work directly against the prospect of any third party getting a toehold. In Australia, after this recent election, nearly a quarter of your Senate is composed of minor party MPs. In the US, in my lifetime, the number of third-party senators has never risen above 2%. I personally attribute this difference to the combination of preferential and compulsory voting, which I believe allows for a more robust political dialogue and a higher baseline political engagement for the general public.

Thirdly, whilst I agree that Tony Abbott is a reprehensible, small-minded toad of a man who reminds me uncomfortably strongly of George W. Bush, I think dwelling on his flaws is the worst thing progressive Australians can possibly do at this point in time. The Australian system is set up to focus on parties, not figureheads, and to do otherwise is to buy into a detrimental political rhetoric encouraged by News Corp. et al. Focusing on how awful Abbott is – or, for that matter, how awful Rudd was, or Gillard was, or Howard was – sets up a narrow perspective on politics that feeds into an us-versus-them, get-the-bastard-out-of-office-at-all-costs, lesser-of-two-evils mindset that, frankly, is a trap designed to keep the two major political parties in power despite neither of them accurately representing the interests of the public. You don’t have to fall into that trap; your system is capable of being more open-ended and accurately representative than that.

My request to you is that, if you are not happy with the government as it currently stands, you instead focus on supporting minor parties. They don’t have to be the Greens; that’s simply my own personal preference. There are tons of other minor parties out there; if you feel like your voice isn’t being heard by the current government, find a bunch of other people who agree with you and turn yourselves into a political megaphone by collaborating. Yes, it’s unlikely that your minor party will sweep into power in a few years, but it certainly won’t happen if you treat failure as a foregone conclusion. In the meantime, there are a number of ways that supporting minor parties sends a substantial political message to the major parties, prompting them to pay more attention to your political interests even if they retain power.

Please don’t spend the next X years bemoaning Tony Abbott. Be politically affirmative instead of negative. Whenever you want to make an unhappy Facebook post about something he’s said or done, donate time, money, or energy to your chosen third party instead. Tell everyone about that. Expand the political dialogue, instead of contracting it. Work toward making things better instead of just keeping things from getting worse. Don’t get sucked down into the bog of hating the opposition, because yours is a system that doesn’t require that kind of polarised perspective, and to cave to that way of thinking is to allow yourself to succumb to the sickness instead of being part of the cure.

You don’t have to settle for the lesser of two evils, you never have had to, and things will never improve if you believe that you do.

On the Campaign Trail – Part 1

As we go into the final week of the Australian federal election, I will attempt to write several shorter pieces, each relating to an aspect of ethics (and corruption) within an election. The intention is to provide a single piece each week day, they will necessarily be a little bit shorter.

However, as a large portion of the population lacks the formal training to critically assess claims in the public domain, let alone separate fact from opinion, I would place the onus upon those who would seek to govern.

Defining the Ethics of our Politicians

There is no requirement in Australian electoral regulations to prevent untruthful claims (save some limitations). The article linked makes this observation, and argues that this is as it should be, as there is no way to police or enforce the truthfulness of political statements. Specifically, it makes the case that nothing should regulate the content of electoral messages, being a matter for the demos to resolve without interference.

Consider then, the current (2013) Federal election, which has seen its share of claims that are highly contestable, and where the factuality of their claims have been brought into question. Two of these relate to claims over two of the most prominent issues of concern for this election: namely the economy and asylum seekers. Certainly, the ABC Vote Compass suggested that they are (or were) the two biggest issues from their sample.

The issue of the economy is a rather useful example to examine how the different electoral campaigns frame the matter. If we examine the Coalition’s election campaign, we see a platform that seeks to discredit the ALP Government’s management of the economy. Many of the concerns highlighting the deficit and economic performance, linking this to the impact on families and jobs. However, we have a starkly contrasting view about the state of the economy by Nobel Laureate Joseph Stiglitz.

Stiglitz view is perhaps a most qualified rebuttal to the persistent anxieties about the Australian economy. The huge distinction between Stiglitz and the Coalition is significant of the difference between the political conversation around the economy, and the academic discourse on the same. An academic discourse purports to discover the truth through a method of peer review and subject to critique by expertise. Conversely the political debate is rhetorical, designed to secure a following through persuasive tools to convince the populace of a certain position.

The above is not intending to assess the validity of the claims around the economy or other issues, or even their verisimilitude. Rather, the intention is to highlight the dissonance between expertise and public opinion. This distinction is hardly a new issue, and one might draw parallels to the difference between a common sense understanding, informed by anecdote, and a critical understanding, informed by an evidenced debate.

In rejecting the claim that there need be no regulation of political statements, it is necessary first to address a particular problem: the fact-value distinction.

Fact-Value distinctions

At a most fundamental level, it should be sufficient to suggest that our society would benefit more from honest political statements, which would then benefit the public to cast more informed votes. It alludes to an issue of a type of signal-to-noise ratio within political speech, and the diminishing returns on the rigour of the political debate.

Fundamentally though, what seems to be at stake is an is-ought dilemma; or better yet, a fact-value distinction. On one hand we have a descriptive issue, which is produced through empirical research and a scientific method; on the other, we have a prescriptive problematisation of that issue through a value system. This is because the work of politics is prescriptive, in an inherently contested medium, which must take descriptions of the real world and formulate them into a political platform.

This is because the work of politics is prescriptive, in an inherently contested medium, which must take descriptions of the real world and formulate them into a political platform.

To explain better, I will refer to one of my earlier articles, where I made an argument for how the issue of environmentalism could be co-opted by two diametrically opposed economic systems. That is, let us agree momentarily with the scientific consensus that climate change is anthropogenic, the article then argues how both advocates of growth and steady-state economic have laid claim to providing the appropriate solution to the problem. The point being that we have a description of a phenomenon (anthropogenic climate change), which is then problematised (degradation of the environment, economic costs, amongst others), and based on how the problem is understood, a particular set of social values are applied to derive a solution (steady-state or growth).

The Value of Truth

To some extent, I agree with the claim (in the above-linked article) that contests that there should be any kind of regulation of political speech. I agree to the extent that the issue is incredibly fraught, and there are huge gradations of truthfulness that makes the matter rather murky. Two important issues would have to be resolved, namely, how to recognise a mistruth when it is delivered, and what the appropriate response to that matter becomes. In particular, it is very difficult to demonstrate intentionality behind statements (fraudulent), but we can more readily demonstrate when a claim is factually incorrect (erroneous).

Because of this, I would have to reject the claim that there is no limit to the content that can be produced. The type of institution that would be necessary to investigate and respond to fraudulent political statements would be one of vast apparatus. Conversely, a fact checking institution is relatively simple, which is why a number of self-appointed watch dogs have taken to informally attempt to regulate the factual content of the political claims made my politicians in this election.

…the breach of conduct relates [to] the intentional or unintentional conflation of reporting and editorialising…

A comparison on this can be made towards the recent criticism by the Australian Press Council of News Corp, for failing to differentiate news from its editorial. This seems to confirm that the breach of conduct relates not to providing a political opinion in the role of a ‘trustee’ of public opinion, but the intentional or unintentional conflation of reporting and editorialising, or from what we would expect to be information presented factually from that which is laden with a value opinion.

So fundamentally, I would argue that political commentary should be subject to some manner of scrutiny. Certainly, politicians should be entitled to put their platform forward in a contest; the proverbial “market of ideas”. Yes, I recognise that a part of that debate is not to establish a truth but contend an opinion. However, as a large portion of the population lacks the formal training to critically assess claims in the public domain, let alone separate fact from opinion, I would place the onus upon those who would seek to govern.