We be the colours of the mad and the wicked… Are we becoming scared of protest?

Last year, I argued that Australia was developing a new standard for political protest: the ‘Theatre Kid Threshold‘.  If you rocked up to a political protest with a gallows that looked too good, you were no longer protesting but, instead, advocating violence.  I argued that this was a bad intuition, radically expanding what we understand to be a death threat and the apprehension of harm.  I also argued that–let’s be serious–what was driving a lot of the discussion was opposition to the message of the protest.  Which is fine and I agree with that intuition, but we might want to use other legal methods for achieving that end instead of inflating what counts as advocacy for violence.

I touched very lightly on the idea that the protest was a form of terrorism, an idea that gained some traction in the week surrounding that protest.  It’s an idea that has gained significantly more traction in the past week following the protests at Old Parliament House.  Perhaps more interesting from my perspective is the Othering of the protestors: right wing commentators have described the protesters as left wing; left wing commentators have described the protesters as right wing; there have been very disturbing denials of the Indigeneity of some of the protesters; there was one very incorrect use of the term ‘stochastic terrorism’ by an author who recently wrote a book about the alt-right.

A boring version of this blog post is me patiently working through the relevant law to explain why the protest at Old Parliament House wasn’t terrorism.  A slightly less boring version of this blog post is an argument that we should use ‘terrorism’ as a label of last resort and that contemporary popular uses of the term are missing the ‘terror’ element.

But I want to start 2022 with a blog post that really gets the blood pumping.  I’m going to sledge Sami Shah.

In a passion it broke, I pull the black from the grey… Skip @Atlantic_Ctr’s ‘A Descending Spiral’

John Johnson was a shy child.  He was doing well at school until his father lost his job and became a violent alcoholic, and then his mother died of tuberculosis, and then the local saw mill closed down, pushing the entire region into an economic depression.  As Johnson grew up, he made friends with the wrong kind of kid, and he self-medicated his shyness with drugs and petty thefts.  Then, one day, Johnson was walking along the road humming a jaunty tune, when he accidentally tripped over, tied up eight people, and shot them all in the back of the head.  He was sentenced to death.  The appellate court refused to mitigate the sentence, noting Johnson had previously been convicted of a string of aggravated sexual assaults and two other murders.

If the above paragraph convinces you that the death penalty is wrong and should be abolished, then you are going to love Marc Bookman’s A Descending Spiral.  Anecdote after grisly, unrelenting anecdote about absolutely horrible crimes motivated by the unexamined assumption that the stories show that the death penalty is wrong.  For literally everybody else in the world, this is a frustrating, irrational, and emotionally exhausting series of stories written in a ‘true crime podcast style’.

I was cautioned to surrender; this I could not do… When should allegations result in resignations?

Forget ICAC and the Register of Member’s Interests, for a moment.  Let us distract ourselves from questions about Gladys Berejiklian and Christian Porter.  The recurrently anachronistic King Arthur sits at his round table with knights whom he has appointed for their outstanding character, noble virtues, and exceptional integrity.  King Arthur himself feels that he can govern only if he maintains unimpeachable moral authority, and it is on this basis that he has been able to resist challenges from those who wish to claim the throne.

One day, a meeting of the Round Table is suddenly interrupted: a man bursts into the room and makes astounding allegations about Sir Lancelot.  Should Sir Lancelot resign his position?  Should King Arthur sack him?

Spreading rumors and lies and stories they made up… I’m an expert; here’s my Patreon

If you feel like NSW Government was negligent in its handling of the pandemic, there’s an expert to confirm your view.  If you feel like Victoria is too heavy-handed in its approach to the pandemic, there’s an expert to confirm your view.  Neither expert will point to any actual data or evidence, and they certainly won’t acknowledge that other viewpoints are rational or reasonable.  It’s a frictionless environment in which the experts proclaim their views and never, ever let anybody see how they formed their conclusion.

Why is it like this?  There were books to sell, there was attention to be farmed, and–in at least one case–there was a political career to launch.  We had a problem in the marketplace of ideas: everybody wanted to buy the diesel-guzzling, toxic-fumes emitting, turbo hot take generators and didn’t really care about the impact on the environment.  The marketplace wanted the ideas that were spicy and sensational; they didn’t want ideas that made them feel like they couldn’t bellyfeel their way out of the problem.

I want to shift the lens here a little bit.  Above, we could see the problem in terms of institutional media entities picking and choosing its experts based on their availability to comment, willingness to say sensational things, and the amount of audience engagement they encouraged.  I want to say–in the least defamatory way possible–that there were also individual incentives to behave like this: attention, book sales, political careers.

When we ease back from the institutional media entities and look at the concept of ‘expertise’ more broadly across different topics, I think we see something similar that has emerged over the last decade or so: market-selected expertise.

I’m not bored or unhappy, I’m still so strange and wild… Big Daddy State must keep us safe

On 9 November 2018, Hassan Khalif Shire Ali set fire to his vehicle in the middle of Bourke Street, Melbourne, and then stabbed three people.  Mr Ali was fatally shot by police shortly afterwards.

I think about this incident a lot.  Mr Ali was a Somalian-Australian, he had a young kid, and he was known by friends and relatives as having some severe mental health issues, as well as some substance abuse.  I remember being worried about the backlash that the event would have on the Somalian-Australian and Muslim-Australian communities.  The Premier of Victoria, Dan Andrews was on the front foot in declaring it a terrorist event.

But what really scared me was the surprising overlap in rhetoric between mainstream Coalition and ALP voters: why had this been permitted to happen?  Why hadn’t ASIO, AFP, and VicPol stopped this from happening?

I think about it a lot.  Since starting my PhD to research political aspects of national security law, I’ll think about it every few days or so.  Public debate was guided by entirely the wrong questions.  This incident was a failure of Australia’s national security system because it hadn’t done more to police Mr Ali.

Today, the number of new confirmed cases of COVID in NSW is 830.  There were 65 new cases confirmed in Victoria, and 19 in the ACT.  Public debate is following similar contours: why had this been permitted to happen?  Why hadn’t the NSW Government done more, earlier, to stop this from happening?

Bendable figures with a fresh new pack of lies… More on standards of evidence and Christian Porter

Juror no. 77: You’d have to convince me he was innocent rather than guilty.

Let’s walk through this one carefully and slowly.  In a recent post, I talked about how we were not committed to criminal standards of evidence when we talk about public accountability.  Since that time, the Attorney-General, Christian Porter, has told the public that he is the subject of the complaint.  He denies the allegation and has said that he would not step down.

Unfortunately, he said a few other things.

If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print.

If that happens, anyone in public life is able to be removed simply by the printing of an allegation.

Every child we raise can have their lives destroyed by online reporting of accusations alone.

My guess is that if I were to resign and that set a new standard, there wouldn’t be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country.

This is not true, but social media chatter is very confused about what’s being discussed here and how we resolve this kind of problem.

He packed his suitcase and kissed his kids goodbye… Some facts about recent defamation cases

New year, new batch of defamation cases!

Two recent cases have had journalists and media professionals on Twitter all abuzz.  Media companies continue to lobby for changes to defamation law in the same way that vehicle manufacturers continue to lobby against emission standards.  Media organisations wield incredible and largely unchecked powers in Australia.

Until 2005, there was significant variation between Australian jurisdictions in the law of defamation, including whether or not truth alone was a defence.  Some jurisdictions required news organisations to also show something like ‘public interest’ or ‘public benefit’ when using a truth defence (called ‘justification’).

In 2005, it was decided to lower the standard across Australia to ‘truth alone’: if you could demonstrate that what you were saying was substantially true, you had a defence in defamation law.  The quid pro quo of this lower standard was that we were going to get a legislated tort of privacy: if media companies invaded your privacy, they would have to demonstrate a public interest in doing so.

Having obtained the lower standard in defamation law, media companies then lobbied against the privacy tort…

The road behind was rocky, But now you’re feeling cocky… Trump v Twitter: the Free Speech Grudge Match of Our Time

Twitter has banned the President of the United States, Donald J Trump and, through this act of chilling speech, has caused a lot of speech in the form of hot takes.  I promised myself that I would not contribute to this deluge of takes; I begged myself not to contribute to this flood of opinion; I implored myself to stay hydrated and embody the best version of myself by not contributing to the swamp of bellyfeel.  Alas, I am mortal and liable to fall.

A private company withholding service on political grounds is absolutely a free speech issue and everybody arguing to the contrary is confused.  The debate is not whether or not this is an issue about freedom of speech (which it absolutely is); rather, the debate is whether or not you should care about some people having their freedom of speech curtailed.  That last point is the relevant bit to this discussion: should the President be permitted to use a service to incite violence and, if not, who should make that call?

I hear you dancing every day; Forget the world and let the music play… The Assange Decision, Journalism, and Espionage

By now, everybody’s opinion about Assange is rusted in place.  There’s nothing fruitful in entertaining a discussion about whether Assange was right or wrong, or what kind of person Assange is: we all ‘know’ the ‘facts’ (or, rather, we’ve settled on which version of them suits us best) and each ‘side’ of the discussion struggles to believe that the other side seriously exists.

So it’s important that no discussion of Assange should actually be about Assange.  A level of abstraction is needed for productive discussion.

In USA v Assange, the Magistrates’ Court was unable to release Assange to the United States due to section 91 of the Extradition Act 2003 (UK) which states:

Section 91
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person’s discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.

Baraitser J believed that it it would be unjust or oppressive to extradite Assange because he was a very high risk of self harm.  Assange otherwise lost every other substantive issue of law.

One question sticks out for further inquiry: are the activities described in the judgement the activities of a normal journalist and, if so, how is journalism distinct from enemy intelligence operations?

Quick Post: Public reactions to the Inspector-General ADF Afghanistan Inquiry Report

The public version of the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report went live on their website about twelve minutes ago.  It’s some 465 pages long, so we would expect there to be at least twenty minutes more before the hot takes emerged.

The public reaction to reports like this tend less to be about their content and far more about validating existing beliefs.  The issues are complex, difficult, and confronting, and probably not well suited to analysis by political editors whose bread and butter is theatre criticism of politicians.  The question then emerges about how to get intellectual leadership in public debate.  Academic experts outside of official channels have only had the report now for fifteen minutes, and social media is already abuzz.