The rights of children

Camilla Nelson and Catherine Lumby’s new book Broken is a “devastating account of how Australia’s family courts fail children, families and victims of domestic abuse”. In light of Parliament’s recent decision to merge the Family Court and Federal Circuit Court, they wrote about the legal and ethical imbalance in recognising children’s rights.

“Alex” was 15 years old when her parents went to court. By then, her childhood memories included a recollection of her father “holding a knife to [her mother’s] throat”, and a series of violent altercations that resulted in her mother being taken to hospital with her face “swollen, bleeding and bruised”.

In court, the judge accepted that Alex was thoughtful, articulate and mature beyond her years. He acknowledged that Alex’s “post-traumatic stress symptoms” – including “anxiety”, “panic attacks” and “hypervigilance” – became “elevated” whenever her father was near. He even stated he was “satisfied” that Alex’s wish to have no contact with her father was “genuine”. But the court still forced Alex into child-inclusive mediation with her father followed by a defended trial – because her father wanted it; and the law apparently required it.

Although in Alex’s case, the judge eventually decided that forcing Alex into a relationship with an alleged perpetrator of harm was not in Alex’s “best interest”, this case illustrates the extraordinary asymmetry in a law that states “children have the right to know and be cared for by both their parents” but does not allow mature children – like Alex – the right to rationally and reasonably refuse this relationship when a parent is abusive and violent.

A glaring contradiction

Alex’s case – and others like it – draws attention to the glaring contradiction at the centre of family law that leads to poor decision-making and dangerously spiralling litigation. These are the so called “primary considerations” in the child’s best interest factors set out in Part VII of the Family Law Act – which, at worst, pits the child’s safety against their parents’ desires, or, at best, assumes a child’s interests will be identical with that of their parents, when this is simply not the case.

Perhaps because family law constructs itself as a contest between separating parents, it lags behind other legal jurisdictions in the recognition it gives to children’s rights. In legal matters outside the family courts, parental authority is broadly understood to diminish as a child’s capacity to make decisions for themselves develops. This is most obviously recognised in the right of a mature child to access medical treatment, regardless of their parents’ views. More starkly, the age of criminal liability in Australia is ten – far too young, according to experts and advocates – and the age of criminal responsibility is 14. In this context, it seems wildly incongruous for the family courts to conclude that a mature minor – such as Alex – is incapable of making age-appropriate decisions about where they will live and who they will see.

When Gough Whitlam and Lionel Murphy drew up the Family Law Act – this was not the case. Back in the 1970s mature minors like Alex were given more – not less – rights under Australian Family Law. In the Act as it was drafted in 1975, section 64(1)(b) stated: “where the child has attained the age of 14 years, the court shall not make an order under this Part contrary to the wishes of the child unless the court is satisfied that, by reason of special circumstances, it is necessary to do so”. Until 1983, children over 14 were all but entitled to make their own decisions under the law.

Even after the rights of adolescents were curtailed by an increasingly conservative parliament and judiciary, legal professionals were still inclined to allow teenagers to “vote with their feet” – as family lawyer’s like to phrase it – when it came to making age-appropriate decisions about their lives, unless, of course, their preferences exposed them to serious harm. Then in 2006, “children’s wishes” – renamed “views” – were dropped down the list of things judges needed to consider when making decisions about a child’s life and placed in the “additional considerations” category, where they have remained ever since. Since then, the government has rejected the recommendations of the Australian Law Reform Commission to rewrite Part VII of the Family Law Act to better recognise children’s rights. In the recent Joint Select Inquiry into Australia’s Family Law System children were not even named among the “Parties to Proceedings” that the Joint Select Committee thought appropriate to consult.

Understanding how and why children are silenced, disbelieved or ignored in society matters when considering the decisions of the family court. Cultural attitudes to children profoundly shape the way they are understood by and in the justice system. The belief that judges stand outside society and politics – or, indeed, “above” it – is a fiction. In the family courts, the opposite is true. Over the course of the last half century, the family courts have functioned as a primary forum for a series of highly charged political debates about the institution of the family, and the role that children, women and men play in maintaining or disrupting it. In recent years, debate has been driven by a minority of men’s right’s activists intent on placing their own “rights” and interests above children’s concerns – oblivious to the fact that parenting is not a “right” but a moral responsibility.

Wrong questions

What the family law lacks is a positive ethical framework with which to think about the rights of children. Instead, the ethical norms associated with family law flow from paternalistic ideas about the “vulnerable child”, with “inadequate cognitions” and “erroneous opinions about the world”. In the name of the child’s “best interests” the law steps in to negotiate the competing claims of parents. This occurs in forums in which children’s voices are largely absent, in which children are not permitted to participate, or – if permitted – are not adequately supported to do so. This is not to argue that children who are subject to family law proceedings are not vulnerable, or do not need care and protection – clearly, they do. It is simply to point out that in the absence of a positive ethics or a robust conception of children’s rights, the child’s “best interest” principle merely operates as a proxy for the interests of others, while the ethical norms of “protection” function to conceal the real power relationships that are at stake.

Essentially, the law asks the wrong questions of the separating family. Parenting does not revolve around questions of what is notionally “fair” or “equal” or “neutral” or “impartial” – the sorts of abstract and allegedly androcentric systems of rational analysis in which judges are trained and which have historically underpinned everything from criminal to corporate and property law, and which are echoed in men’s rights activists’ angry demands for their 50 per cent “shares” in a child. Instead, the question that ought to be asked is how can society best meet this particular child’s needs. What a child needs first is recognition – and once children become fully visible in the law, then their other needs will quickly become clear, such as safety, flexibility, a chance to grow, and at least one place filled with nurture and love that is called home.

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How can we improve the ethical imbalance in recognising children’s rights?

Thought Experiment: The famous violinist

Imagine waking up in a bed, disoriented, bleary-eyed and confused.

You can’t remember how you got to there, and the bed you’re in doesn’t feel familiar. As you start to get a sense of your surroundings, you notice a bunch of medical equipment around. You notice plugs and tubes coming out of your body and realise you’re back-to-back with another person.  

A glimpse in the mirror tells you the person you’re attached to is a world-famous violinist – one with a fatal kidney ailment. And now, you start to realise what’s happened. Last night, you were invited to be the guest of honour at an event hosted by the Society of Music Lovers. During the event, they told you about this violinist – whose prodigious talent would be taken from the world too soon if they couldn’t find a way to fix him.  

It looks like, based on the medical records strewn around the room, the Society of Music Lovers have been scouring the globe for someone whose blood type and genetic markers are a match with the violinist.  

A doctor enters the room, looking distressed. She informs you that the Society of Music Lovers drugged and kidnapped you, and had your circulatory system hooked you up to the violinist. That way, your healthy kidney can extract the poisons from the blood and the violinist will be cured – and you’ll be completely healthy at the end of the process. Unfortunately, the procedure is going to take approximately 40 weeks to complete.  

“Look, we’re sorry the Society of Music Lovers did this to you–we would never have permitted it if we had known,” the doctor apologises to you. “But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment and can safely be unplugged from you.”  

After all, the doctor explains, “all persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot be unplugged from him.” 

This thought experiment originates in American philosopher Judith Jarvis Thompson’s famous paper ‘In Defence of Abortion’ and, in case you hadn’t figured it out, aims to recreate some of the conditions of pregnancy in a different scenario. The goal is to test how some of the moral claims around abortion apply to a morally similar, contextually different situation.  

Thomson’s question is simple: “Is it morally incumbent on you to accede to this situation?” Do you have to stay plugged in? “No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it?” Thomson asks.  

Thomson believes most people would be outraged at the suggestion that someone could be subjected to nine months of medical interconnectedness as a result of being drugged and kidnapped. Yet, Thomson explains, this is more-or-less what people who object to abortion – even in cases where the pregnancy occurred as a result of rape – are claiming.  

Part of what makes the thought experiment so compelling is that we can tweak the variables to mirror more closely a bunch of different situations – for instance, one where the person’s life is at risk by being attached to the violinist. Another where they are made to feel very unwell, or are bed-ridden for nine months… the list goes on.  

But Thomson’s main goal isn’t to tweak an admittedly absurd scenario in a million different ways to decide on a case-by-case basis whether an abortion is OK or not. Instead, her thought experiment is intended to show the implausibility of the doctor’s final argument: that because the violinist has a right to life, you are therefore obligated to be bound to him for nine months.  

“This argument treats the right to life as if it were unproblematic. It is not, and this seems to me to be precisely the source of the mistake,” she writes.

Instead, Thomson argues that the right to life is, actually, a right ‘not to be killed unjustly’.

Otherwise, as the thought experiment shows us, the right to life leads to a situation where we can make unjust claims on other people.

For example, if someone needs a kidney transplant and they have the absolute right to life – which Thomson understands as “a right to be given at least the bare minimum one needs for continued life” – then someone who refused to donate their kidney would be doing something wrong 

Thinking about a “right to life” leads us to weird conclusions, like that if my kidneys got sick, I might have some entitlement to someone else’s organs, which intuitively seems weird and wrong, though if I ever need a kidney, I reserve the right to change my mind.  

Interestingly, Thomson’s argument – written in 1971 – does leave open the possibility of some ethical judgements around abortion. She tweaks her thought experiment so that instead of being connected to the violinist for nine months, you need only be connected for an hour. In this case, given the relatively minor inconvenience, wouldn’t it be wrong to let the violinist die?  

Thomson thinks it would, but not because the violinist has a right to use your circulatory system. It would be wrong for reasons more familiar to virtue ethics – that it was selfish, callous, cruel etc…  

Part of the power of Thomson’s thought experiment is to enable a sincere, careful discussion over a complex, loaded issue in a relatively safe environment. It gives us a sense of psychological distance from the real issue. Of course, this is only valuable if Thomson has created a meaningful analogy between the famous violinist and what an actual unwanted pregnancy is like. Lots of abortion critics and defenders alike would want to reject aspects of Thomson’s argument.  

Nevertheless, Thomson’s paper continues to be taught not only as an important contribution to the ethical debate around abortion, but as an excellent example of how to build a careful, convincing argument.

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Can body autonomy and the right to life coexist?

Libertarianism and the limits of freedom

Libertarianism is the political philosophy that champions individual freedom. But does it really love freedom as much as it claims?

Governments interfere with our lives all the time. They punish us when we say things that they (or others) consider offensive. They make us save money we can only access if we reach a certain age. They engage police that can stop us in the street. They require us to inoculate against disease – even if it is against our wishes. And they demand we give away some of our salaries and assets (in the form of taxes), to be spent on things that may neither benefit nor be agreeable to us.

These are all fairly standard government interferences, even before we consider the more extreme restrictions that we have seen imposed throughout the COVID-19 pandemic.

Most political philosophies permit state interference, with some permitting quite a lot. Social contract theories, from Hobbes in the 17th century to Rawls in the 20th century, contend that citizens have consented either implicitly or explicitly, to give up certain freedoms, in exchange for protection of their remaining freedoms. However, not all political philosophies are as sanguine.

Libertarianism, which champions individual freedom, argues government interference is not only a pesky annoyance, but a violation of our fundamental rights. Libertarians contend that government interference is unjust even if intervention benefits the person being interfered with. Extreme libertarians would even support the right of a person to sell themselves into slavery – and would object to any government that seeks to prevent this.

Libertarianism has its roots in the works of the seventeenth and eighteenth-century liberal philosophers: John Locke, David Hume and Adam Smith. However, modern libertarians find much of their inspiration from Robert Nozick’s Anarchy, State and Utopia (1974). Nozick argues that individuals have strong self-ownership and property rights, rights that cannot be violated. Freedom, the core tenet of libertarianism, is the fundamental good to be affirmed and protected. On this view, we are all free (and equal) individuals, with the uninhibited right to make individual decisions with regard to our lives, our liberty, and the ownership of our property.

Libertarians, however are not anarchists. They do believe in the existence of the state. A libertarian state is one that performs the strictly limited roles of protecting citizens’ self-ownership and property rights and rectifying past transgressions of those rights.

Government’s role is to protect people’s freedom to choose happiness of a kind that is defined by each individual, not as dictated by others. If an individual wants to follow a particular god, that is their choice. If a person wants to buy a particular good or service on the free market, so let them. If a woman wants to marry multiple husbands, that is up to her.

For most right-libertarians, original property ownership (that is staking an ownership on unowned natural resources) is allowable, subject to the somewhat ambiguous Lockean proviso, that “enough and is good” is left for others. Nozick also asserted that when staking an ownership claim, no-one else should be made worse-off than they would otherwise be, which allows for significant variation in original property ownership. Left-libertarians, distinguished from right-libertarians by the very feature of original property ownership, claim everyone has a pro rata right to natural resources such as land, air and minerals.

Libertarianism’s absolute focus on individual freedom is attractive and makes for a consistent and simple political philosophy. It also has broad appeal, attracting strange ideological bedfellows.

Social progressives find attractive the social freedom associated with libertarianism. Governments have no right to punish an individual for taking recreational drugs; it is impermissible for the state to ban marriage between same sex couples; wrong for a country to wage a foreign war or conscript people into the army; and forbidden for government to ban, say, assisted dying.

Economic conservatives are attracted to the libertarian stance that it is wrong for government to take away assets in the form of an inheritance tax; impermissible for the state to impose an income tax for the purpose of redistribution. Indeed, the argument that government has no right to interfere in transactions between consenting adults, underpins the fundamental argument for many free market economists. Those on both the left and right are attracted to the argument that governments have no right to censor free speech.

However, if you think that libertarianism maximises freedom, then you would be wrong. One criticism of libertarianism is that it allows for scenarios which substantially limit freedom. Libertarianism prohibits anything but the very minimum level of taxation. This stance permits gross inequalities across wealth and income, and prohibits the levying of taxes required to fund the provision of state-run services.

As long as people are not interfered with, libertarianism finds it fair for children to be born into a subsistent existence, without access to education or basic healthcare. While these children may be able to do whatever they want without interference, their options and possibilities are severely limited. It is difficult to argue that these children are free in any meaningful sense.

Libertarianism also struggles to deal with negative externalities – the negative effects that individuals’ actions have on unrelated third parties. Companies (and individuals) tend to ignore costs which are imposed on other people. When this occurs, the net total cost to society of the pursuit of individual production and consumption choices, are typically negative.

Emblematic of this problem is climate change. I might enjoy all the benefits of taking a holiday to London, but I impose certain costs associated with green-house emissions that contribute to global warming, on other Australians. Adani’s shareholders and executives may enjoy the higher dividends and salaries from its pursuit of coal mining, but ignore the pollution costs they impose on future generations.

In such cases, libertarians, with their strong insistence of individual freedom, have very little constructive criticism to contribute to considerations regarding potential government intervention mechanisms. A further example concerns COVID-19 vaccination. Should citizens be free to choose whether they are vaccinated, despite the costs a failure to vaccinate imposes on other people? The libertarian position is that forcing someone to be vaccinated is unjust.

Perhaps the most incisive criticism of libertarianism though, is that paradoxically, libertarianism interferes too much.

Property acquisition typically involves a whole suite of historical injustices and the rectification of past injustice is likely to require a great deal of interference. If you are a card-carrying Silicon Valley billionaire libertarian, then you are aware (or at least you should be) that your worldly possessions are contingent upon the injustice of Europeans taking somebody else’s (native Americans’) private property.

Libertarian fairness, requires appropriate rectification. And arguing past injustices do not require rectification is arguing for something quite different to libertarian rules of justice. Most likely, that’s just arguing for self-interest.

Libertarianism has many attractive features and is likely to remain the political philosophy of choice for those who claim to love freedom. However, libertarian freedom is conditional. A world where libertarian rules of justice reign, may in fact result in a world that is not very free at all.

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Is freedom conditional?

What do we want from consent education?

In mid-April this year a government-funded video was released which aimed to teach high-school aged Australians about sexual consent.

The video, which attempted to emphasise the importance of sexual consent by discussing the forced consumption of milkshakes, was widely criticised around the globe. It has since been removed from ‘The Good Society’ site, with secretary of the Department of Education Dr Michele Bruniges citing “community and stakeholder feedback” as reason for the action.

Widespread criticism of the video can be found online about the video’s sole use of metaphor to describe consent. Less present in the discussions is consensus on what a good consent education video would look like.

The underlying assumption in the video released by The Good Society is that issues of sexual consent can be managed by teaching adolescents that the rights of an individual are violated when an aggressor forces a ‘no’, or a ‘maybe’, into a ‘yes’. And, the video tells us, “that’s NOT GOOD!“.

Is it sufficient to tell adolescents to respect the rights of their peers in order to overcome issues of sexual violence? While rights may help us discuss what it is we want our societies to look like, they fail to assist us in getting others to care for, or value, the rights of others.

Sally Haslanger, Ford Professor of Philosophy and Women’s and Gender Studies at MIT (Massachusetts Institute of Technology) argues that actions are shaped by culture, and that cultures are effectively networks of social meanings which work in a variety of ways to shape our social practices. To change undesirable social practices, cultural change must also occur.

For example, successfully managing traffic is not just achieved by passing traffic laws or telling drivers that breaking the law is ‘not good’. Instead, Haslanger tells us that it requires inculcating “public norms, meanings and skills in drivers”. That is, we need a particular type of culture for traffic laws to adequately do what it is we want them to do. Applying this idea to sexual consent, we see that we are required to educate populations about why violating the preferences of our peers is indeed ‘not good’, after all.

Skirting around the issue fails to provide resources to move our culture to better recognise the deep injustice and harms of sexual violence.

Vague, euphemistic videos will likely fail to play even a minor role in transforming our current culture into one with fewer instances of sexual violence. This is due largely to the fact that Australia is comprised of social and political systems which fail to take the violence experienced by women and girls seriously.

Haslanger suggests that interventions such as revised legislation and moral condemnation will be inadequate when enforced onto populations whose values are incompatible with the goals of such interventions.

Attempting to address issues of sexual misconduct indirectly – as seen by The Good Society video ­– are likely to be unsuccessful in creating long term behavioural change. Skirting around the issue fails to provide resources to move our culture to better recognise the deep injustice and harms of sexual violence.

As Haslanger tells us, so long as we are a culture which has misogyny embedded into it, social practices will continue to develop that cause people to act in misogynistic ways. We are required to reshape our culture in a way that changes the value and importance of women.

So long as we are a culture which has misogyny embedded into it, social practices will continue to develop that cause people to act in misogynistic ways.

So, what will shift and transform embedded cultural practices? A better approach advocates educating audiences why consent is valuable, not just how to go about getting it. A population which fails to value the bodily autonomy and preferences of each of its members equally is not a population that will go about acquiring consent in successful and desirable ways.

Quick fix solutions such as ambiguously worded videos on matters of consent are likely to do very little for adolescents in a school system absent of a comprehensive sexual education, and where conversations on sexual conduct and interpersonal relationships remain marginalised.

We need to aim to create a generation of adolescents who are taught why sexual consent is important and why they should value the preferences of their peers. A culture which continues to keep sex ‘taboo’ by failing to explicitly discuss sexual relationships and the reasons why disrespecting bodily autonomy is “NOT GOOD!” will be one which fails to resolve its endemic misogyny and disregard for the lives of women and girls.

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How can we better talk about consent?

He said, she said: Investigating the Christian Porter Case

On 4 March 2021 Attorney General Christian Porter identified himself as the unnamed Minister who had been accused of a 1988 rape in a letter sent to the Prime Minister and some senators.

He strenuously denies any wrongdoing and has refused to step down from his role.

ABC News reports that ‘the letter urges the Prime Minister to set up an independent parliamentary investigation into the matter’ — but should there be an investigation?

The Problem With Testimony

When it comes to accusations of sexual assault, it seems like the situation comes down to a clash of ‘testimony’ — she said, he said. But who is to be believed?

Testimony, to clarify, isn’t just any old speech act. Testimony is speech that is used as a declaration in support of a fact. “The sky is blue” is testimony; “I like strawberries” isn’t.

Generally, people are hesitant to accept testimony as good, or strong evidence for any sort of claim. This is not because testimony is always unreliable, but because we think that there are more reliable methods of attaining knowledge.

Other methods include direct experience (living through or witnessing something), material collection (looking for evidence to support the truth of a claim), or through the exercise of reason itself (for instance, by way of logic or deductive reasoning).

In this case, it seems like what would need to occur is a fact-finding mission which could add weight either to the testimony of either Porter or the alleged victim.

What is very surprising, then, is that only some people support such an investigation, while others have rejected the move as unnecessary, including Prime Minister Scott Morrison. These people deem Porter’s testimony credible. But should they?

Judging Credibility

It isn’t strange to find that people are willing to treat testimony as sufficient evidence for a claim. We often do. Testimony is used in trials. Every news report is testimony. The scientific truths we have learn from books or YouTube are testimony. You get the picture. We may think we are always sceptical of testimony, but we could hardly get by without it.

So, we do rely on testimony. Just not all testimony. When it comes to believing testimony, what we’re really doing is judging the speaker’s credibility. The question is thus: should we trust what a specific person says about a specific matter in a specific context?

The problem is that we’re actually not very good at working out which speakers are credible and which aren’t. Often we get it wrong. And sometimes we get it wrong because of implicit biases—biases about types of people, biases about institutions, and the sway of authority.

As philosopher Miranda Fricker has pointed out, when people do not receive the credibility they are due—whether because they receive too much (a credibility excess) or too little (a credibility deficit)—and the reason they do not receive it is because of such biases, then a testimonial injustice occurs.

“Being judged credible to some degree is being regarded as more credible than others, less credible than others, and equally credible as others,” explains philosopher José Medina.

In a she said, he said case, if we judge one person as credible, we’re also discrediting the other.

Fricker explains that testimonial injustice produces harms. First, there is a harm caused to the listener: because they didn’t believe testimony they should have, they failed to acquire some new knowledge, which is a kind of harm.

However, testimonial injustices also harms the speaker. When someone’s testimony is doubted without good reason, we disrespect them by doubting their ability to convey truth – which is part of what defines us as humans. This means testimonial injustices symbolically degrade us qua [as] human. Basically, to commit a testimonial injustice means we fail to treat people in a fundamentally respectful way. Instead, we treat them as less than fully human.

Is there a Credibility Deficit or Excess in Porter’s case?

Relevant to the issue of credibility attribution in the wake of a sexual assault allegations is the perception (and fear) shared by many that women lie about sexual assault.

In fact, approximately 95% of sexual assault allegations are true. This means it is highly improbable (but not impossible) that the alleged victim made a false claim.

It is not just stereotyping about lying and vindictive women that can interfere with correct credibility attribution. As Treasurer Josh Frydenberg has reminded us, Porter “is entitled to the presumption of innocence, as any citizen in this country is entitled.”

This commitment we share to presume innocence unless or until guilt is proven is a significant bulwark of our ethico-legal value system.

However, in a case of “she said, he said”, his entitlement to the presumption of innocence automatically generates the assumption that the victim is lying. Given that false rape allegations are so infrequent, the presumption of innocence unfairly undermines the credibility of the complainant almost every  time.

This type of testimonial injustice may seem unavoidable because we cannot give up the presumption of innocence; it is too important. However, the insistence that Porter receive the presumption of innocence rather than insisting we believe the statistically likely allegations against him may point to another problem with the way assign credibility.

As philosopher Kate Manne has observed, particularly when it comes to allegations made by women of sexual assault by men, the accused are often received with himpathy—that is, they receive a greater outpouring of sympathy and concern over the complainants. She explains, “if someone sympathizes with the [accused] initially…he will come to figure as the victim of the story. And a victim narrative needs a villain…”

So here’s the rub.

If a great many people in a society share the view that women lie, then they tacitly see complainants as uncredible.

And if a great many people in a society feel sorry for certain men who are accused of sexual assault, then they are likely to side with the accused. In turn, those who are accused of sexual assault (usually, men) will automatically receive a credibility excess.

Is this what has happened in Porter’s case? Note that an investigation could lend credibility to either party’s claims. This is where the police would normally step in.

Didn’t the Police Investigate and Exonerate Porter?

You would be forgiven for thinking that NSW Police had conducted a thorough investigation and had cleared Porter’s name judging by the way some powerful parliamentary figures have responded to Porter’s case.

For example, in his dismissal of calls for an independent investigation, Scott Morrison said that it “would say the rule of law and our police are not competent to deal with these issues.” Likewise, Treasurer Josh Frydenberg said: “The police are the only body that are authorised to deal with such serious criminal matters.” Nationals Senator Susan MacDonald also opposed the investigation, saying: “We have a system of justice in this country [and] a police service that is well resourced and the most capable of understanding whether or not evidence needs to go to trial — and they have closed the matter.”

Case closed. This must mean that there’s no evidence and that an independent inquiry would be pointless, right?

Not quite. NSW Police stated that there was “insufficient admissible evidence” to proceed with an investigation. They did not say that there was no evidence of misconduct. Moreover, the issue for criminal proceedings is that the alleged victim did not make a formal statement before she took her own life.

In other words, the complainant’s testimony does not get to count as evidence because, technically, there is no testimony on the record.

Preventing Testimonial Injustice

Since the alleged victim had not made a formal statement to Police at the time of her death, the call for an investigation into Porter’s conduct can be seen as a means of ensuring Porter does not receive a testimonial credibility excess and the complainant a testimonial credibility deficit.

To stand by Porter’s testimony in a context where it is widely – and falsely – believed that women make false rape allegations, and where the police are seen as the only body capable of exercising an investigation (when in fact they are not), would be to commit a testimonial injustice.

As former Liberal staffer and lawyer Dhanya Mani says, “The fact that the police are not pursuing the matter for practical reasons does not preclude or prevent the Prime Minister from undertaking an inquiry into a very serious allegation… And that inquiry will either exonerate Christian Porter and prove his innocence or it will prove otherwise.”

It is important to understand that an independent investigation is not bound by the exact same evidentiary rules as are the police and courts. It may be possible for others to testify on her behalf. Other evidence which is inadmissible in court may be admissible here. An independent investigation at least offers the possibility that the complainant’s testimony will get a fair hearing.

Also worth noting is where the presumption of innocence would end. For a crime, guilt should be proved beyond a reasonable doubt. For civil cases, that standard is “on the balance of probabilities”. What standard should an independent investigation use? I would suggest the latter, precisely because testimony is likely to be all the evidence there is.

To prevent a testimonial injustice—attributing too much credibility, or too little, to someone undeserving of it—these allegations must be investigated.

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Is there a credibility deficit in Christian Porter’s case?

Settler rage and our inherited national guilt

Professor Marcia Langton offers a distinctive term for settler-Australian racism towards Aboriginal and Torres Strait Islander peoples. She calls it the ‘settler mentality’. In her FODI Digital lecture Langton suggests that the experience of living unjustly on stolen Indigenous lands has produced in settler Australians a ‘peculiar hatred’ expressed through ‘settler rage against the people with whom they will not treat.’

While Langton observes the manifold evidence of ‘classical, formal racism’, she maintains that the underlying problem in Australia is ‘a settler population that cannot come to terms with its Indigenous population.’ Here, Langton touches upon a long running debate among scholars seeking to understand the ongoing conflict in Indigenous-settler relations. For some, race—and racism—are the primary lens for understanding both historical and contemporary injustice.

On this view, colonialism is in service to racism, enabling a white supremacist nation to take root on this continent. There is an abundance of evidence to support that claim, for example in the history of eugenicist practices in Australia including the ‘degrees of blood’ that for decades were used to justify the separation Aboriginal and Torres Strait Islander children from their families.

But for me there has always been more weight to support the counter view expressed by Langton.

Racism is real, certainly, but it operates in service to colonialism.

Colonialism cares less about the skin colour of the peoples it dispossesses and far more about accessing and controlling their land. It is in pursuit of land and the resources in and of that land that colonisers everywhere have committed atrocities against Indigenous peoples.

Australia is no exception. It is colonisation and the subsequent failure to negotiate treaties with First Nations on this continent that give rise to the settler state’s moral and legal illegitimacy. Colonisation is violent—no people anywhere in the world have been dispossessed of their land peacefully, and again, Australia is no exception.

Despite the state’s steadfast refusal to properly acknowledge this history, the evidence of over a century of frontier warfare is no secret. It never has been.

In her address, Langton mentions Australian historian Henry Reynolds’ book, This Whispering in Our Hearts, about those who recognised the injustices being perpetrated and were prepared to contest the violence of colonisation.

Langton points out that these settlers were well aware that they had ‘committed a monstrous crime’ and suggests that the criminality of the settler has produced in them a trauma similar to the kind that the German population had to deal with in the wake of the horrors of World War II. In making this comparison Langton references the German academic and novelist Bernhard Schlink’s famous novel The Reader.

In my own work I have drawn on another of Schlink’s books, the non-fiction volume Guilt About the Past, in which he unpacks the way in which the crimes of previous generations infect more than the generation that lives through the era (in his case Nazi Germany).

Schlink argues that guilt about the past also ‘casts a long shadow over the present, infecting later generations with a sense of guilt, responsibility and self-questioning.’ Schlink suggests subsequent generations create their own guilt when, in the face of evidence of past atrocities, they maintain a bond of solidarity with the perpetrators by failing to renounce their actions.

Australian national identity rests on the fantasy that the continent was virtually empty of people when the British arrived and went on to be peacefully settled.

Despite mounting scientific and historical evidence of the sophistication of Indigenous societies, the myth persists that Aboriginal and Torres Strait Islander peoples were ‘primitive’ and backward, and that colonisation brought them the benefits of Western ‘civilisation’.

Settlers hang onto these wrongheaded ideas as a means of justifying our presence and denying the horrors that accompanied dispossession. There is no easy path for reckoning with our forefathers’ crimes, there cannot really be redemption.

If we are here illegitimately then where do we properly belong? If the land is not ours then where should we live? If our presence here is the result of massacre and genocide how do we even begin to make that right?

And so the bonds of solidarity with the original perpetrators live on, deep within settler DNA. For every revelation of past atrocity there will be a critic ready to deny the harms done.

For every proposal to make amends for the past through more just relations today, there is a politician or a journalist ready to defend Australia’s colonial history as a sad but inevitable chapter on the road to modernity. For every call that we not celebrate our national day on the day the atrocities began for Indigenous peoples there is a chorus of criticism in defense of nationalism and ‘Australian identity.’

These responses are damaging to both settler and Indigenous peoples.

While Indigenous peoples are left still to struggle for justice, settlers are left with paralysis.

The peculiar hatred that Langton describes is like a poison in settler society. This poison makes us brittle, defensive, unkind, and greedy, unwilling to give up any of the wealth we have gained through atrocity and dispossession.

Yet even as it makes us sick, still we drink the poison up. This has been the settler’s choice since this continent was first invaded. We can, however, make a different choice. The antidote to the poison of settler society is justice, and it is not beyond our reach.

This project is supported by the Copyright Agency’s Cultural Fund.

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What lurks behind the racism toward First Nations people?

Ethics Explainer: Testimonial Injustice

Telling people things – or giving ‘testimony’ – is one of our quickest, oldest, and most natural ways of adding to human stores of knowledge.

Philosophers have spent thousands of years wondering when, and why, certain beliefs count as knowledge – and when certain beliefs count as justified. Many agree that when we are told something by someone reliable, trustworthy, and in possession of the facts, their testimony can be enough to justify a belief in what they say. 

I can tell you that it will rain later, you can tell me which way the train station is, we can both go to a lecture by an expert and walk away knowing more. 

But we can’t accept all the information we hear from other people. Not all testimony can ground knowledge – some of it is lies, errors or opinion. That’s why credibility is important to the process of learning by being told. 

The enlightenment philosopher David Hume argued that we shouldn’t set our standing levels of credibility too high: he thought “testimonial beliefs” were only justified when we had back-up justification from other sources like our own eyes, readings, and observations. 

Immanuel Kant, by contrast, thought that we had a “presumptive duty” to believe what our fellow humans told us, since believing them was a mark of respect

Regardless of the debate about how much credibility we should give people, there’s no denying that how much credibility we do give plays a big role in what we can learn from each other, and whether we learn anything at all. 

Sometimes we allocate credibility in ways that are unfair, unreasonable or outright harmful. Beginning in the 20th Century, Black and female philosophers started pointing out that women, people of colour, people who spoke with an accent, and people who bore visible markers of poverty were disbelieved at far higher rates than the general population. 

Because of existing prejudices against these people, some ethicists posit, they are being systematically disbelieved when they speak about things they, in fact, are reliable experts about. This is what philosophers term “a credibility deficit”. People could experience a credibility deficit when they speak about elements of their own experience, like what it was like to be a woman in domestic servitude.

It could also include elements of the world around them – such as the denial of black people’s reports of violence by white men. 

Credibility deficits are not just a matter of knowledge but a matter of justice: if we are not believed when we tell other people true things, we can be shut out of important social processes and ways of being recognized by other people. One of the most important ways that credibility deficits play out is in court, or in other reports to do with crimes and legal proceedings.

After abolition in the United States but before the civil rights movement, black peoples’ testimony was not recognised as a source of legal information in courts. That legacy has long undermined the way that black people’s testimony is viewed in courts, even today. 

Philosopher Miranda Fricker uses a scene from To Kill A Mockingbird to highlight the way Tom’s race, when combined with his being in a white courtroom affects his Tom credibility. hough he is in fact telling the truth, and though there are no obvious reasons to disbelieve him, the white jurors in the American South are so trained by prejudice that they regard his race itself as a reason to disbelieve him. It is not the facts of the story itself that mean jurors do not believe it, but facts about who is telling it. 

Clip: Tom Robinson’s cross-examination from To Kill A Mockingbird.

This was a common and tragic way that credibility deficits played out in the real world: there is a long history of white women being believed over black men even when they made false and damaging claims. 

The tradition of “testimonial injustice” in philosophy argues that credibility misallocation is more than a mistake. It is an injustice because we have a moral duty to see other people as ‘full’ people and to treat them with respect, but discounting people’s word because of prejudice is a way of denying them that respect.

In some ways, to refuse to believe someone without defensible reasons is to refuse to recognise them as a person.

Philosophers like Miranda Fricker, Jose Medina, Dick Moran, and a long tradition of black feminist epistemology including Charles Mills and bell hooks have explored the ways that being a free and equal citizen requires being believed as one. There are wide-ranging debates among these thinkers over many areas inside testimonial injustice, including whether and why being believed is foundational to being seen as a person, what kinds of credibility we could ‘owe’ one another, and whether people besides the disbelieved party are wronged by a faulty allocation of credibility.

One important question is whether it could be wrong and if so to whom, to give out too much credibility instead of too little. If it’s unfair to afford someone too little credibility, what should we say of affording too much? Are they wrong? If so, why? And, who is wronged by giving someone more credibility than they deserve?

A case study that might demonstrate this question is the familiar setting of the classroom. A male teacher-in-training with 6 months experience might be regarded in the classroom as more authoritative than a female teacher with many years’ more experience. This need not mean that the students disbelieve the female teacher. They could simply believe the male teacher more readily, with fewer questions, and with more of a sense that he is credible and has gravitas in the learning environment.

They could simply give him more credibility than he deserves. Who is wronged by this, if the female teacher is still believed when she speaks? Are the students wronging themselves? Are they accidentally wronging the male teacher, even though he benefits from the arrangement? These are important open questions that ethicists are still debating. 

Another question is what kind of credibility we have to give to others in order to do right by them. Hume knew that we could not believe everything we hear. How much must we believe, in order to avoid this distinctive form of injustice? 

Despite these unresolved matters, testimonial injustice is an important ethical phenomenon to be aware of as we move through the world trying to be responsible speakers and hearers. It’s important to living ethically that we keep prejudice and it affects out of our beliefs as well as out of our acts. 

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Do we all have equal claim to the truth?

In the face of such generosity, how can racism still exist?

Is there any polite or moderate way to condemn racism? I think not. Nor should there be. As the world has witnessed, on countless occasions, racism kills. It does so for the worst of all possible reasons – by denying the equal humanity of some people simply because of the colour of their skin.

The evil caused by racism is not ‘theoretical’. We do not need to speculate about the horrors that it has unleashed. We have only to listen to the evidence of the enslaved, the dispossessed and the murdered to know what follows when one group of people is thought to be ‘less fully human’ than another.

Some people are upset by the words ‘Black Lives Matter’. They assert an alternative proposition that, ‘All Lives Matter’. Well, of course they do. But that has never been denied by the BLM movement. BLM does not claim that only black lives matter. They do not say that black lives matter more than any other.

They simply state that black lives also matter – in a way that racism denies. And they are right. They might also ask, ‘where were the people chanting ‘All Lives Matter’ when the ‘original sin’ of racism was being visited on the world?’. Why has the ‘All Lives Matter’ brigade only found its voice now that the spotlight has been turned on the oppressors by the oppressed?

I come from a privileged background. So, I can barely imagine what it must be like to be on the wrong end of the racist scourge. I can only guess at my reaction – probably a burning rage at the sheer injustice of my treatment. Like the Rev’d. Dr. Martin Luther King Jr – I would demand to be judged for the quality of my character rather than the colour of my skin. Denied that right, I would let loose my rage on an unjust world and those who represent the system that denied me the most basic form of dignity.

So, it eclipses all understanding to find that, in my experience, the vast majority of Indigenous Australians who have experienced racism are, in fact, amongst the most generous and accepting of people. Yes, there are angry firebrands. However, rather than replicate the wrongs they have suffered or become like those who have denied their humanity, most of those affected choose to repudiate racism by accepting others for who they are and not how they seem.

I speak of this from direct experience. A few days after my seventeenth birthday, I arrived on Groote Eylandt – the home of the Anindilyakwa people of East Arnhem Land and the Gulf of Carpentaria. This was the mid-1970s and the racism directed towards the local mob was common, open and shameless. I doubt that those involved would consider themselves as deliberately being racist. If anything, their racism was almost ‘casual’ in character – a product of ignorance, prejudice and ingrained habits of mind.

It’s hard to explain exactly how and why my experience was so different – perhaps it was my young age or a lucky accident … I really do not know. Whatever the reasons, a few of the Aboriginal men took me under their wing. Friendships developed and eventually I was given a skin name and inducted into a network of kinship ties that I value to this day. The point is that if you were to meet me ‘in the flesh’ you would simply see a middle-aged, white male. As far as I know, I have no genetic ties to the people of Groote. Yet, their acceptance of me has been complete and unconditional.

I have often questioned my experience – wondering if I might have invented a narrative to match an idealized version of myself. However, improbable as it might seem, the connections are real. I will never forget spending an evening with two members of the Amagula Clan (a brother and sister) who explained their kinship connection to me (I carry a Lalara name). Eventually, they simply placed their hands over my heart – to tell me that the colour of my skin, my ‘outward form’, did not matter. That this is not what they saw when they looked at me … but something altogether different. Both are dead – dying far earlier than would have been the case if Australia had been settled on more just terms.

My experience is not unique. Indeed, I believe that our First Nations people are willing to embrace anyone who cares to be open to their doing so. All that is asked is that there be a recognition of simple truths about our relationship to each other and to all that belongs to and is part of the country of which we form equal parts.

In the face of such generosity of spirit – how can we possibly allow racism to persist?

IMAGE CREDIT: The image displayed in this article is a painting by Alfred Lalara (deceased), a talented Groote Eylandt artist. The title is Angurugu River.

You can contact The Ethics Centre about any of the issues discussed in this article. We offer free counselling for individuals via Ethi-callprofessional fee-for-service consulting, leadership and development services; and as a non-profit charity we rely heavily on donations to continue our work, which can be made via our websiteThank you.

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How can racism still exist?

The ethics of tearing down monuments

In the UK and US and other nations around the world, public monuments dedicated to people who have profited from or perpetuated slavery and racism are being torn down by demonstrators and public authorities who sympathise with the justice of their cause.

Statues of Christopher Columbus, Edward Colston, King Leopold II and Confederate Gen. Robert E. Lee are amongst those toppled in protest.

What are we to make of these acts?  In particular, who should decide the fate of such monuments – and according to what criteria?

By their very nature, statues are intended to honour those they depict. They elevate both the likeness and the reputation of their subject – conferring a kind of immortality denied to those of us who simply fade away in both form and memory.

So, the decision to raise a statue in a public place is a serious matter. The choice reveals much about the ethical sensibilities of those who commission the work. Such a work is a public declaration that a particular person, through their character and deeds, is deserving of public commemoration.

There are six criteria that should be used to evaluate the public standing of a particular life. These can be applied at the time of commissioning a monument or retrospectively when determining if such a commemoration is justified.

  1. They must not be associated with any gateway acts

Are there aspects of the person’s conduct that are so heinous as to rule them out, irrespective of any other achievement that might merit celebration? For example, one would not honour a genocidal mass murderer, even if the rest of their life was marked by the most profoundly positive achievements. There are some deeds that are so wrong as to be beyond rectification.

  1. Their achievements must be exceptionally noteworthy

Did they significantly exceed the achievements of others in relevantly similar circumstances? For example, we should note that most statues recognise the achievements of people who were born into conditions of relative privilege. The outstanding achievements of the marginalised and oppressed are, for the most part, barely noticed, let alone celebrated.

  1. Their work must have served the public good

Did the person pursue ends that were noble and directed to the public good? For example, was the person driven by greed and a desire for personal enrichment – but just happened to increase the common good along the way? 

  1. The means by which they achieved their work must be ethical

Were the means employed by the person ethically acceptable? For example, did the person benefit some by denying the intrinsic dignity of others (through enslavement, etc)?

  1. They must be the principal driver of the outcomes associated with their deeds

    Is the person responsible for the good and evil that flowed from their deeds? Are they a principal driver of change? Or have others taken their ideas and work and used them for good or ill? It is important that we neither praise nor blame people for outcomes that they would never have intended but were the inadvertent product of their work. In those cases, we should not gloss over the truth of what happened. But if they otherwise deserve to be honoured for their achievements, then these should not be deemed ‘tainted’ by the deeds of others.

  2. The monument must contribute positively to the public commons

    Would the creation of the monument be a positive contribution to the public commons, or is it likely to become a site of unproductive strife and dissension? In considering this, does the statue perform a role beyond celebrating a particular person and their life? Is it emblematic of some deeper truth in history that should be acknowledged and debated? Not every public monument should be a source of joy and consensus. Some play a useful role if they prompt debate and even remorse.

It will be noted that five of the six criteria relate to the life of the individual who is commemorated. Only the sixth criterion looks beyond the person to the wider good of society. However, this is an important consideration given that we are thinking, here, specifically about statues displayed in public places.

The retrospective application of this criteria is precisely what is happening ‘on the streets’ at the moment. The trouble is that the popular response is often more visceral than considered – and this sparks deeper concerns amongst citizens who are ready to embrace change … but only if it is principled and orderly.

Of course, asking frustrated and angry people to be ‘principled and orderly’ in their response to oppression is unlikely to produce a positive response. That’s why I think it important for civic authorities to take responsibility for addressing such questions, and to do so proactively.

This was recently demonstrated by the Borough of Tower Hamlets that removed the statue of slave owner Robert Milligan from its plinth at West India Quay in London’s Docklands. As the Mayor of London, Sadiq Khan, noted: “it’s a sad truth that much of our wealth was derived from the slave trade – but this does not have to be celebrated in our public spaces”.

What does all of this mean for Australia? There will be considerable debate about what statues should be removed. I will leave it to others to apply the criteria outlined above. However, the issue is not just about the statues we take down.

What of those we fail to erect? Who have we failed to honour? For example, have we missed an opportunity to recognise people like Aboriginal warrior Pemulwuy whose resistance to European occupation was every bit as heroic as that of the British Queen Boudica. Two warrior-leaders – the latter celebrated; the other not. The absence is eloquent.

You can contact The Ethics Centre about any of the issues discussed in this article. We offer free counselling for individuals via Ethi-callprofessional fee-for-service consulting, leadership and development services; and as a non-profit charity we rely heavily on donations to continue our work, which can be made via our websiteThank you.

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What are the unseen dangers of returning to business?

Ask an ethicist: do teachers have the right to object to returning to school?

In recent weeks, there has been a particularly intense debate about whether or not students should return to the classroom.

This article was first published by Crikey, in their weekly Ask the Ethicist column featuring Dr Simon Longstaff.

Much of that debate has focused on the interests of the children and their families. However, there is a third stakeholder group – the nation’s teachers – who need to be considered. Part ‘essential worker’, part ‘political football’, they have been celebrated on one hand and condemned on the other. So, what are the ethical obligations of those who teach our children during COVID-19.

As a starting point, let’s agree that education is a significant ‘good’ and that children should not be deprived of its benefits unless there are compelling reasons for doing so. Compelling reasons would include the potential risk of infection due to school attendance.

At present, the balance of evidence is that the risk of children becoming infected is low and that they are unlikely to be transmitters of the disease to adults – especially in well-controlled environments. However, why take any risk – if viable alternatives are available?

Here, we should note that the education of children has not been suspended during the crisis. Instead, it has continued by other – ‘online’ – means. This has required a massive effort by the teaching profession to ‘recalibrate’ the learning environment to support distance learning.

We should also note that the ability to provide distance education distinguishes teachers from other essential workers who, of necessity, must provide a face-to-face service. For example, while some doctors can consult with patients using ‘telemedicine’, most health care workers need to be physically present (e.g. when administering a flu injection, or caring for a bed-ridden patient, etc.).

So, if distance learning achieves the same educational outcomes as classroom teaching, teachers would not seem to be under any moral obligation to return to the classroom. However, the Federal Government has recently cited reports suggesting that online learning produces ‘sub-optimal’ outcomes for students (unwelcome news for children living in remote communities and educated by the ‘school of the air’).

If this is true, then it would suggest two things. First that the government should be massively increasing its investment in education for children who have no option but to engage in distance education. Second, that teachers should be heading back into the classroom.

However, what of the teacher who lives with people for whom COVID-19 is a particular threat … the aged and infirm? In those cases, the choice is not just a matter of balancing a public duty as an educator against a preference for personal safety. Rather, the teacher is caught in an ethical dilemma of competing duties.

In such a case, I think it would be reasonable for a teacher to claim they have a conscientious objection to returning to the classroom – grounded in a refusal to be the potential cause of harm to a loved one – especially when the only certain protection for the loved one is that the teacher remain isolated.

You can contact The Ethics Centre about any of the issues discussed in this article. We offer free counselling for individuals via Ethi-callprofessional fee-for-service consulting, leadership and development services; and as a non-profit charity we rely heavily on donations to continue our work, which can be made via our websiteThank you.

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Can you put a price on life?