The Minister for Immigration and Border Protection, Peter Dutton, commented this week that refugee lawyers are ‘unAustralian’. Of course, as night follows day, there was the expected backlash. How dare the Minister make these comments? Rule of Law! There’s nothing more Australian than being a lawyer! Laws are Australian.
For me, the surprise was how tone-deaf the response to the Minister has been. Lawyers and legal groups have all tut-tutted with censorious rhetoric without understanding the enormity of the puzzle behind Dutton’s comments: society does not trust lawyers.
Because a bunch of politicians can’t fill out their paperwork correctly, people are calling for a referendum. Some (journalists) are even saying we need to scrap the Constitution and start again.
First up, it is utterly, utterly horrendous that we are even contemplating this discussion when we have real work before us: to enshrine Indigenous Australia in the Constitution. I find it nothing short of offensive that actual problems with the Constitution have been eclipsed by the needs of our political class.
Worse, the debate about the Constitution has been dominated by people who don’t understand what they’re talking about (journalists again). There appears to be an unspoken assumption that the Constitution is supposed to be convenient to them and their needs. My concern is that the broader community depends on these journalists to give them the information they need to participate in debates about the Constitution and whether it continues to suit our needs.
In exchange for getting privileged access to information and power, public servants give up a range of rights. This should not come as a surprise. I’ve written about this issue before with regard to the Federal Court case of Banerji v Bowles, in which a public servant’s unhinged behaviour on Twitter was not found to be protected political speech.
Today’s announcement that the government has issued more restrictive advice about appropriate behaviour for public servants on social media has reignited this debate. Of course, most of the debate is just media beat up because the new guideline is not all that novel, but there are some broader discussions that are worth considering.
Holy shit! Who would have guessed that s 44 of the Australian Constitution would bite as hard as it has over the past year or so? Rod Culleton (One Nation), Bob Day (Family First), Scott Ludlam (Greens), and now Larissa Waters (Greens) have all fallen victim of s 44, either through High Court intervention or through voluntary resignation to inevitability. Technically, Bob Day was twice ineligible under s 44. And there’s another case on the boil: National Party MP, David Gillespie.
What I find interesting — really interesting — is how difficult it is to intuit the purpose of s 44. It’s a provision that excites popular imagination. Perhaps it’s a relic of a racist past. Perhaps it is a protection against foreign interference. Perhaps it should be amended. Perhaps it shouldn’t be.
But perhaps it’s not the technicality of the provision that we should consider, but bigger theories about constitutional democracies. Why should there be restrictions on who can become a parliamentarian? Shouldn’t we be able to elect whomever we want?
It might be a career-limiting move to opine too much about research bureaucracy when you’re doing your level best to punch into an academic career, but danger is the spice of life and these hot takes aren’t going to pepper themselves.
Over on The Research Whisperer, Tseen Khoo has raised a puzzle about the impact of university metrics on the way that researchers undertake their work stating that she doesn’t need money to do her research. Meanwhile, on the LSE Review of Books, Derek Dunne talks about the historical relationship between bureaucracy and research (with bureaucracy being a form of social control). They are both interesting pieces, strongly flavoured by personal experience and anecdote, but I’m not sure that they completely grasp the puzzle at hand.
To some extent, very little of this is going to be surprising. I think Liberty Victoria are a bunch of goofs and it was always going to be unlikely that I’d think any of their reports were worth reading. Liberty Victoria is the face of the Victorian Council for Civil Liberties. Their role in the advocacy ecosystem is to promote the perspectives of civil libertarians, regardless of how vapid. This means writing reports like Playing God: the Immigration Minister’s unrestrained power and giving the ‘Voltaire Award’ to Gillian Triggs. They trade in controversy because attention is their only tool for pushing an agenda.
That’s not necessarily pejorative. Liberty Victoria sits in the swamp of liberalism along with libertarian groups like the Centre for Independent Studies and the Institute of Public Affairs. Getting attention encourages to think about concepts like ‘liberty’, ‘freedom’ and ‘human rights’ in left wing terms. But it also means that they are systemically incapable of engaging in serious discussion about the issues they worry about. They’re after bombastic, flash-in-the-pan interventions that cause a bit of stir.
And that’s what we get with Playing God: a report that will, no doubt, fire up the core supporters and maybe get them to donate a bit more money to the cause. But it’s not an intellectually serious report, in the same way that giving the Voltaire Award to Triggs was an intellectually serious decision.
I really like Australia. It is a great country. It could be better. Sure, it’s better for me than it is for many others, but I’d rather live here than anywhere else in the world.
The Left struggles with patriotism. It smells too much like racism. It whiffs of conservatism. It looks too much like a relic of a colonial past where we cared about the Mother Country or the Fatherland, a concept which made people fight pointless wars in foreign countries and steal resources. Isn’t it just irrational jingoism about the place where you were accidentally born?
The issue has raised its head in public policy again due to the Turnbull Government’s decision to tinker with the Citizenship Test: ‘Membership of the Australian family is a privilege and should be afforded to those who support our values, respect our laws and want to work hard by integrating and contributing to an even better Australia‘.
So let’s do a quick tour of the policy questions and the underlying philosophy of patriotism.
I spend far too much of my life thinking about the control of Executive power (70% of this is due to me having eleven thousand words on the topic due in a week so I am procrastinating hard). It is an extremely complex question that ultimately boils down to our basic intuitions about the relationship between the community and the State. That sounds more simple than it really is: the way you express that intuition in language affects the way you think about it.
Jeremy Waldron gives an example of this: should we talk about limiting the State, or should we talk instead of empowering the State? Well, that depends on what you think the State is and whether it begins its life omnipotent or impotent. Reasonable people can disagree on this point, and it’s not mere semantics. Back to Waldron: we can frame constitutions in ways that restrict the lawful use of State power or we can frame constitutions in ways which compel the State to use its power in particular ways.
I spend far too much of my life thinking about what the Executive power is and how we can control it. Every school child is taught the Separation of Powers like they’re taught triune theology. There’s God the Father, God the Son, and God the Holy Spirit. God the Father is the angry one from the Old Testament. God the Son is Jesus the hippy who liked fish. God the Holy Spirit is… the… other… one… maybe. Similarly, there’s the Legislature (which creates the law!). There’s the Judiciary (which interprets the law!). And there’s the Executive (which… administers the law? Whatever that means).
And then people map these three branches directly on to particular institutions. The Legislature is the Parliament, full of parliamentarians who create laws by passing legislation. The Judiciary is the Courts, full of judges who read the legislation and tell us what it means to resolve disputes. And there’s the Executive who is… like… maybe the public service… maybe?
Anyway, this all gets me to what a shitfully bad idea MiVote is.
Amidst the entirely unworthy debates of whether one wealthy white guy is allowed to tell another wealthy white guy that he’s a ‘social climber’ or not, you might have missed that Senator Jacqui Lambie has introduced an ‘anti-burqa bill’ into the Senate. I think that there are fundamental legal problems with it (but they’re boring and technical) and it probably won’t get beyond second reading. But even if there aren’t technical problems, I still think — as a conservative — that there are problems with the Bill that we should debate. The key problem, from my perspective, is the extent to which people should be able to preserve their anonymity and defend their privacy. This Bill is an unrestrained attack on your ability to regulate the extent to which other people can monitor you and coerce your behaviour.
There’s a risk that I end up being ‘That Guy’ in this post. Something happens and people are happy, then That Guy says: ‘Aha! You are all stupid for being happy about this because it is actually bad!’ We often see That Guy perform along to partisan beats. The NDIS is launched and a right wing That Guy bloatedly explains that the NDIS is actually bad somehow. A terrorist plan is thwarted and a left wing That Guy bloviates that it is somehow a false flag.
On one level, we should be happy that Chelsea Manning was pardoned. She gets to be reunited with her family and friends, and we shouldn’t begrudge her that genuine happiness. It is a monster who responds to an act of mercy with spite or with pettiness.
At the same time, we should keep a critical eye on this act of executive power and question whether we think it meets our community standards for how we want our justice system to work.