Her dates heads of state, men of taste… The Right to Sex and the NDIS

The circumstances which unfortunately affect the applicant herself are, to say the least, very unusual. The details of the claim involve very personal details concerning the impact of her disability upon her sexual life, such that I have decided that those details ought not, out of respect for her, to be disclosed in the public section of these reasons for decision. I apprehend that she would be embarrassed and disconcerted by their disclosure publicly, and that no public interest requires that such details be exposed to the world at large, or to media discussion.

So wrote the Administrative Appeals Tribunal in WRMF and National Disability Insurance Agency [2019] AATA 1771.  The decision itself is not complex, but the context of it is extremely sad.

‘WRMF’ is a woman with severe multiple sclerosis and other related conditions.  She has had a physical disability since age 17, and apparently also suffers some psychiatric conditions. Her MS is to such a degree that she is unable to masturbate.  She sought funding for a sex therapist to manage aspects of her condition and not — it is important to stress this point — because she couldn’t find a partner.  The fact that she couldn’t masturbate is, apparently, causing her enormous stress:

Her response to her achievement of sexual release (to the extent to which she is able to obtain such release) as a result of the services of a specialised sex therapist were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing at Transcript page 18, where she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life. […] The applicant chooses to have the services of a sexual therapist. Most people do not need such services to achieve sexual release, so in a sense she is put on a par with others as far as she can be. As I have found, the support will help her realise her potential for social and emotional development and to participate in social life.

This should be the entirity of the debate.  It’s an extreme situation with a lot of specific facts.  It’s not really appropriate for widespread media attention.

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I was born like this, I had no choice; I was born with the gift of a golden voice… On the Freedom of Expression Bill 2019

You might have missed it.  While we were all distracted by God knows what political stunt was filling the airwaves this week, Centre Alliance Senators Stirling Griff and Rex Patrick introduced a Bill into the Senate which will, if passed (it won’t), insert a new clause, s 80A, into the Constitution to read:

80A Freedom of expression
The Commonwealth, a State or a Territory must not limit freedom of expression, including freedom of the press and other media.
However, a law of the Commonwealth, a State or a Territory may limit the freedom only if the limitation is reasonable and justifiable in an open, free and democratic society.

It’s a bit of fun because it will never, ever get passed.  But let’s chat about it anyway.

The moon’s too bright; the chain’s too tight… Could you design a policy platform?

Who among us could seriously put together a credible policy platform?  If you were to design a Federal Budget, aren’t there better than even odds that the country would sink into the sea by lunchtime?

Much of our political culture expects us to be experts on — or at least have an opinion about — practically every topic of public policy.  The High Court found a bunch of politicians ineligible to sit in Parliament?  Suddenly we all had to have views about s 44 of the Constitution and how citizenship laws of other countries operate. There was a Royal Commission into Misconduct in the Banking, Superannuation, and Financial Services Industry.  We all had to have strong opinions about what Australia should do next and how quickly we should do it. The Earth is on fire — how would you solve it?  Are education standards up to scratch?  Should we abolish private schools?  Should we raise NewStart by $75?  Is $75 dollars enough?  If we are going to raise the minimum wage, why aren’t we raising NewStart?

I’ve worked in a few areas of public policy and I have degrees in law that specialise on areas commonly debated in public.  Even then, I am often watching performed politics where I just simply do not know what the issues are or where to start with thinking about them.

It’s like I’m powerful with a little bit of tender… On xenofeminism

I’m reading Xenofeminism by Helen Hester, and it’s amazing.  I disagree with it a lot, but it is in engaging with ideas that we can hone our own views and develop our arguments.

In a previous post, I argued that we have an expectation that people who are minorities should also be able and willing to engage in theory.  That is, it is not sufficient that a person is same-sex attracted, or trans, or queer; they also have to be ready to explain and to defend their preferred gender theory.  This is, of course, nonsense.  We don’t expect the same from the straight white male — if anything, we might be in a better position if all of Australia’s straights were capable of explaining and defending their preferred gender theory.

When explaining why I disagree with xenofeminism, I need to bite a few bullets that I rather hoped I wouldn’t have to bite.  As a conservative, what do I really want to preserve about ‘culture’, ‘tradition’, and ‘nature’?  Xenofeminism presents a number of really interesting challenges in ways that I wasn’t expecting.

Once it was simple, one feeling at a time… Obligatory hot take on the election

There seem to be a lot of people who are, despite never being involved in politics, apparently experts in what went wrong for Bill Shorten.  It was barely 8pm when the hot takes started up.  People knew with extreme certainty what the ALP had done wrong.

Worse, by 9pm, it seemed as if it was compulsory for people to get in first with their accurate diagnosis of what went wrong.  Journos, especially, had this compulsion to give definitive takes as early as they could.

I’m not one of those people.  I have no idea what went wrong.  If anything, it justifies a whole lot more expenditure on social sciences research.

But I do know what the election loss means to me personally.  As a conservative, I hoped that the Liberal Party would lose, spend a few years in opposition trying to digest what it was going to do about the hard right elements in its midst, and then approach the next election with a policy platform.  Instead, Australia showed that you could win an election with next to nothing.  Worse, it feels like the Liberal Party has won the election not knowing what it would do if it won.  Most of its experienced elements had departed prior to the election, not expecting to be reelected, and the policy platform appeared to be made up on the spot.

People you hate will get their hooks into you… Responding to @mjrowland68 on the criticism of journalists

Michael Rowland is a co-host of ABC News Breakfast.  To its credit, the show provides an alternative for audiences who watch the sort of breakfast television that’s dominated by mediocre white Baby Boomers and not (as is the inspired choice) by cartoons.  If you really must have the television on in the morning (and you hate cartoons), then you can avoid the commercial offerings of explicit hatred towards minorities by flicking over to the ABC with its implicit erasure of them.

Like many of the old white people haunting the ‘legacy’ media, Rowland thinks there’s a problem with social media: not enough respect for journalists.  In a weirdly written article on the ABC’s website, Rowland uses his national platform to say that journalists don’t think people on Twitter are being nice enough:

Twitter is a double-edged sword for political journalists.

It’s an invaluable source of breaking news and allows us to keep track of campaign developments in real time.

For good and bad, it’s a forum for politicians to make unfiltered announcements or respond to criticism from the other side, all of which provides fodder for news stories and commentary.

Importantly, it allows voters to have their say — and this is where things are getting particularly willing.

“Twitter is a peanut gallery of hyper-partisan tools,” Uhlmann laments.

That is unintelligible nonsense.  Rowland then asks the views of Chris ‘Jewish intellectuals are an intellectual virus’ Uhlmann, Patricia Karvelas, Dennis Atkins, Katharine Murphy, and Leigh Sales.  All of them complain that people on Twitter are too mean and don’t give them enough respect.

At no point does Rowland ask the vital question: do the critics have a point?

Close your, close your, close your eyes… Is truth the right standard for defamation law?

The decision in Geoffrey Rush’s defamation case against the Daily Telegraph was handed down this week. This, of course, got many people all a-chattering about defamation law.  Particularly journos.  Many felt that this was yet another example of the law’s failures, a key reason why the ‘me-too’ movement hadn’t taken off in the way that it had overseas.  After all, when was the last time a newspaper won a defamation case?

Followers of defamation law would know that only a month earlier we had the case of Charan v Nationwide News, a resounding victory for the newspaper.  Most people would not have heard about that case because the newspaper won…

The high profile losses recently have often skipped over any criticism of the newspaper’s conduct. In the Rush case, the Court found the newspaper published the allegations in ‘an extravagant, excessive and sensationalist manner’: ‘It is difficult to see how the front page image could possibly be considered to be justifiable in light of the relative paucity of the information apparent from the content of the articles.’ Further, the Court found that the newspaper was ‘reckless as to the truth or falsity of the defamatory imputations conveyed by the articles and had failed to make adequate inquiries before publication’.

Another major case was decided this year, Chau v Fairfax.  The Court again found that the newspaper had been unreasonable in the way it went about forming conclusions about Dr Chau.

This is a problem because public perception of the law is, of course, influenced by the way it is presented in the media.  Here, the media has a clear interest in presenting the law in an unfavourable light, just as all industries argue against regulations which get in the way of their profits.

Framed differently, a reasonable and cautious publisher could have printed the stories about Rush and Dr Chau in a way which would not have fallen victim to defamation law.

Rather than grill through the legal aspects of the case (which are fascinating, don’t get me wrong), let’s get wild and run naked through the fields of legal theory: is ‘truth’ the right yardstick for defamation law?