And we will live together, until the twelfth of never… Banerji, Folau, and Clubb are not arguments in favour of a Bill of Rights

Advocates for an Australian Bill of Rights present less than half of an argument: ‘Look at all the wonderful things Australia could have if only it had a Bill of Rights!’  The High Court decision in Banerji (which held that a public servant does not have a constitutional right to go completely rogue about their employer and sledge their boss online) has encouraged some advocates to reheat their inedible souffle in favour of a Bill of Rights.

In The Canberra Times, Crispin Hull writes:

Get it through your thick skulls. There is no freedom of speech in Australia. Stop watching American movies.

Okay.  He continues:

Australians should understand that to qualify as a liberal democracy a bill of rights is pretty much compulsory. History tells us that liberal democracy is both gained and lost gradually, step by step. In recent years, Australia has been taking some of those steps.

He provides no argument in support of this view.

Gillian Triggs, the former Human Rights Commissioner, argued along similar lines:

If anyone doubts the need for a charter of rights in Australia, the Banerji decision of the High Court handed down last week demonstrates why legislative protection for our common law freedoms has become a matter of national urgency.

Triggs argued that this was because the High Court did not discuss issues that were entirely irrelevant to the matter before it, and then notes:

A similar charter protection in Australian law may not have saved Banerji on the facts of her case, as it is arguably necessary to protect the integrity of the public service.

Coolio.  Meanewhile, Josh Bornstein of Maurice Blackburn and Per Capita, turned to a discussion of Israel Folau, the sports celebrity who did a homophobia and got sacked:

[T]hose cheering on the loss of Folau’s livelihood and career have undermined the cause of countless other employees who espouse controversial progressive views and suffer the same fate. […] While Folau’s views are objectionable and arguably even hate speech, perpetual unemployment is a grossly disproportionate punishment.

It was harder to find impassioned defences of Kathleen Clubb, the woman who challenged Victoria’s laws which prohibited anti-abortion protests within the vicinity of abortion clinics.  The Human Rights Legal Centre called it a ‘significant win for gender equality’. Academics from the Castan Centre for Human Rights were strongly supportive of the decision.

Here’s why Australia should not, on the basis of the above, have greater protections for human rights in Australia.

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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.

Talk in song from tongues of lilting grace… Why everybody should stop talking about ‘freedom of speech’

Before we get to the meat of this discussion, it is worth asking a preliminary question: Why are we all talking about Israel Folau?  It’s a painfully boring subject.  We have serious political issues happening right on our doorstep and yet our media is obsessed with whether or not a sports celebrity is allowed to say homophobic things.  Australians are poorly served by our journalists.

The problem with the Israel Folau story is that it’s taken on a level of abstraction that it doesn’t need.  If you ask the average person on the street ‘Do you reckon that a footy player should be permitted to make homophobic remarks?’ the answer would be ‘Uhhhh… I dunno. I just watch them for the footy, really.’

Australians seem obsessed with the idea of presenting sportsball players as public intellectuals.  Ian Thorpe was the white, middle class face of the ‘Yes’ campaign during the marriage equality vote.  Back when I watched ordinary TV, I vaguely remember people I didn’t recognise holding sports gear telling me various obvious things, like depression is bad, don’t do drugs, and don’t hit women.  I also remember Andrew Gaze came to my primary school at one point to tell us that basketball exists.

The point is: most people do not treat sports celebrities as topics that warrant higher level thought.

This comes with costs.  Homophobia, drug abuse, and sexism (particularly sexual assault) is rife within the sporting elite.  Given the vast amount of money involved in sport, sports teams are better seen as PR companies, trying to capture a sort of image that is palatable to the wider community.  In a sense, sports elites are being told to play their sport extremely well and, for the love of all that is good and holy, keep their idiot views to themselves.  Israel Folau could not keep his idiot views to himself and so he was sacked.

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?

Give me back my broken night, my mirrored room, my secret life… On sentencing and the rights of the guilty

When are we entitled to think a person guilty?  The answer is whenever you want.  The presumption of innocence is strictly confined to a very narrow set of social interactions: specifically, legal ones.

I wrote before that it’s become an article of faith that George Pell’s conviction will be overturned on appeal.  I want to move away from that specific case to discuss the concept of guilt and the rights that we afford the guilty more generally.  Do people really need to be convicted before we treat them as if they’re guilty?  And why don’t we strip the most depraved guilty people of all their rights?  Part of this is thinking not only about powerful elites who have committed unspeakable crimes, but also talking about the other end of the spectrum where the marginalised have engaged in conduct that is reprehensible.

Come to my room, I’ll lower your IQ… Why do we force minorities to justify themselves?

I’ve seen a number of good movies recently.  They were good because I enjoyed them and I engaged with the themes and ideas that they offered.  When somebody says that they enjoy a movie, we tend not to require that the person defend their view with any kind of sophisticated aesthetic theory.  As fun as it would be, very few discussions about the movies that we like end up in heated arguments about the finer points of Hegel’s Lectures on Aesthetics.

A number of political issues, on the other hand, appear to require participants in the debate to have mastered complex (and contentious) theory.  The marriage equality debate, for example, forced the LGB community to become educators about the nature of sexual attraction.  For whatever reason, it wasn’t enough merely for two consenting adults to be attracted to each other in order to have their relationship considered valid.  There had to be a theory.

We see it also with the trans community.  It is not enough that they feel more comfortable expressing a particular gender identity, there is an expectation that they will also be sophisticated gender theorists.

And also with race and Indigeneity.  If you’re born with the ‘wrong’ skin colour, you better have been born with a copy of Fanon’s Black Skin, White Masks in your hand because white people will quiz you about colonialism whenever you complain about structural racism.

I want to argue two things: first, because we don’t make the same expectations of straight, white men, we normalise the expectation that Others must validate their identities; second, it encourages performative politics.

Can I take this for granted with your eyes over me? … Is @JulianBurnside’s ‘social again’ social media dystopian?

Every so often, somebody feels the need to clean up social media.  Twitter is full of trolls and Something Must Be Done.

My answer, of course, is regulation.  If the State would hold Twitter accountable for its content, it will immediately clamp down on antisocial content like Nazis.  But that smells too much like ‘censorship’ for liberals, and so the option is drowned out by a chorus of Voltaire-quoters.  Letting the State regulate public discourse is, apparently, a bigger problem than actual Nazis.  In my view, this ignores the lesson of history: the reluctance of the State to regulate its extremes is what results in the worst of collective human action.

But that’s for another day.

Without formal regulation, we are left with informal regulation.  Into this issue stepped Julian Burnside, one of Australia’s most prominent liberals, with a modest proposal:

[tweet https://twitter.com/JulianBurnside/status/980342314768871424]

But is this wise?  Do we want public megaphones curating Twitter blocklists?