Can philosophy help us when it comes to defining tax fairness?

Nothing is certain, except death and taxes. We can’t make the former fair but we can at least try when it comes to taxation.

Tax is fundamental to government. It is essential to fund the services we require to live in a modern society, including military, police, judiciary, roads, healthcare and education. It has also become more important in recent decades. At the time of Federation, the Australian tax system collected around 5% of GDP. Today this number stands at around 29%.

But is it fair? Are we paying too little or too much tax? Should those with greater means pay more? These are questions that must be asked of any tax system, and two works by philosophers offer very different answers.

The first is Robert Nozick’s Anarchy State and Utopia. It argues that individuals (and, by extension, the corporations they own) ought to own 100% of their income. Individual property rights are paramount, and any taxation beyond what is required to protect borders and protect these property rights is unjust. In short: only public expenditure on the police and military can be justified.

One of Nozick’s more colourful claims is that taxation is on par with forced labour. Tax forces workers to work in part for themselves, and in part for government.

But while Anarchy State and Utopia is a cult favourite of many modern-styled libertarians arguing for lower taxes, most people consider its position on tax unfair. Many find the consequences of the gross inequalities Nozick permits objectionable, while others argue a child’s right to public education, or a citizen’s right to universal healthcare, outweighs the right individuals or corporations have to their pre-tax wealth and income.

An additional issue for Nozick is how to determine who funds the military and police. Should it be a fee for service? And if so, does this mean only the very wealthy who pay tax should enforce property rights, given they have the most to benefit and lose without military and police? Or should everyone pay an equal amount of tax, regardless of their income or wealth or their ability to pay? (The fallout of this was seen in the 1990’s in the UK when a Thatcher Government head tax proposal was met with violence and riots in the street).

The other side of the tax coin

The second perspective comes from Thomas Nagel and Liam Murphy in their book The Myth of Ownership. They tackle the definition of tax fairness in a nearly opposite way to Nozick. They argue that it does not make sense that citizens have full (or any) rights to their pre-tax income and wealth because income and wealth cannot exist without government. Individual and corporate incomes, and the level of incomes, occur because of the existence of government, not despite it.

They have a point. A successful Australian economy requires the enforcement of law, market regulation, monetary policy (not least for the currency we use), and regulation that prohibits collusion, intimidation and other forms of business malpractice. A banker earns money because the government has mandated a currency – and she keeps her money because property rights exist. A lawyer’s income occurs because of the legal system, not despite it. We might also argue that a successful Australian economy requires investments in public education and public healthcare.

Yet, while individual and corporate income may be contingent on the existence of government, and markets might not be considered perfectly fair nor free, it doesn’t follow that market determined outcomes are completely arbitrary. We often say that someone deserves to earn more if they work harder. So if someone decides to go to university or undertake a trade, rather than surf all day, we might think they deserve a higher salary.

This very simple point (not to mention the very real practical issues with discarding market-based outcomes) mean Nagel and Murphy, like Nozick, fail to provide a complete blueprint for us to determine tax fairness. Nozick fails because he assumes market distributions are 100% fair; Nagel and Murphy fail because they assume market distributions (and any and all inputs that determine these distributions such as hard work and effort) are irrelevant.

And yet both philosophies help us focus on important tax fairness elements. Nagel and Murphy show it is important to focus on people’s post-tax positions and effectively highlight that pre-tax market determined income and wealth are not necessarily “fair”, largely because these incomes and wealth cannot exist without tax and government. Nozick effectively highlights that income and corporate tax can only be justified if associated government expenditure can also be justified.

Even if you find that neither of these perspectives to be the right one, they help establish the parameters of a fair tax system. It’s then up to us to inject our values to determine which system is right for the kind of society we wish to live in.

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How far should you go for what you believe in?

Do we all have a right to protest? And does it count if it doesn’t result in radical change? Grappling with it many faces and forms, philosopher Dr Tim Dean, and human rights lawyer and chair of Amnesty International UK, Dr Senthorun (Sen) Raj unpack what it means to ethically protest in our modern society.

In the wake of 2023 World Pride and Sydney Gay and Lesbian Mardi Gras, Raj and Dean reflect on a fundamental question present in all protest: What is it you’re protesting?  

The first challenge is in agreeing on what the problem is: Is it freedom we’re fighting for? Equal rights? Sustainability? From there, you’ve got to expose the fault to enough people who are motivated join in on the resistance. 

“We can hope for a better future, but is it enough to just hope?” – Sen Raj 

Even if a protest is small in numbers, it can be lasting in impact; just consider Sydney’s first Mardi Gras. It was a relatively modest event that’s now grown to nearly 12,500 marchers and 300,000 spectators. But it began with a fraction of those numbers. Late in the evening on 24 June 1978, a group marched toward Hyde Park with a small stereo system and banners decorating the back of a single flat-bed truck, like a scaled-down parade float. The march intentionally coincided with anniversary of the 1969 Stonewall riots, which remains a symbol of resistance and solidarity among the gay and lesbian community. As the night progressed, police confiscated the truck and sound system. Eventually, 53 people were charged – despite having a permit to march – after they fought back in response to the police violence. To this, Ken Davis, who helped lead the march, said, “The police attack made us more determined to run Mardi Gras the next year.”

‘Gay Solidarity Group / Women marching, morning of first Mardi Gras’, 24 June 1978, photo by Sallie Colechin

“Protest” has multiple meanings 

A meaningful protest doesn’t have to be major like Mardi Gras. Sometimes, protests by brave individuals alone have extraordinary impacts.  

Thích Quảng Đức, a Mahayana Buddhist monk, famously burned himself to death at a busy intersection in Vietnam on 11 June 1963. In the height of the Buddhist crisis in South Vietnam, Quảng Đức performed this self-immolation to protest Buddhist persecution. The harrowing photo of him calmly seated while burning alive touched all corners of the globe and inspired similar acts of sacrifice in the name of religious freedom.   

Protests need not be so drastic, though, to have an impact. On 16 December 1965, a group of American students protested the Vietnam War by wearing black armbands with peace signs on them to school. When administrators told the students to remove the bands and they refused, they were sent home. Backed by their families, the Iowa school’s barring of student protest reached the Supreme Court. The famed Tinker v. Des Moines decision held that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  

The Tinker case is proof that protests, no matter how minor, can give rise to reformation. But we shouldn’t enter all protests with an expectation of radical change. Dean and Raj agree the assumption that transformation is the mark of a successful protest ought to be re-examined, as a clear outcome isn’t the only metric of success. As Raj said, “There is a tendency at times to assume that a protest will have a very clear message – a defined endpoint or outcome.”  

Dr Senthorun Raj and Dr Tim Dean, The Ethics of Protest, 2 March 2023, photo by Carlita Sari

Though progress might prove slow, it’s progress, nonetheless. We should act with the intention of spreading a message and entering a larger conversation that may or may not modify the status quo. Does a protest count for nothing if it doesn’t result in sweeping change? Is it not enough to ignite the spirit of defiance in just one soul? Or to simply express your authentic self even if it has no impact?   

“For me, being queer, being trans, being part of a community that is marginalised and stigmatised for who you are or what you do, in itself, is a form of protest.” – Sen Raj

For members of the LGBTQIA+ community, Raj highlights how, “by virtue of existing, these individuals are being policed.” He says, “For me, being queer, being trans, being part of a community that is marginalised and stigmatised for who you are or what you do, in itself, is a form of protest.” So by refusing to conform and loving who they want, not holding themselves to gender or sexual norms, LGBTQIA+ people protest every day. It’s not a large mass gathering, but it’s a kind of protest nonetheless. Authentic expression begets liberation; we ought not trivialise the importance of any protest, big or small, as it takes real courage to take part in something larger than yourself.   

Does violence have a place in protests?  

Just as protests can manifest in many forms, they can also be carried out differently.   

Because tragedy and injustice are what usually catalyse protests, they’re often charged with strong – and sometimes overwhelmingly negative – emotions. It’s no surprise, then, that some protests turn violent.  

But is violence ever permissible in a protest? And if police instigate it, do protesters have a right to protect themselves?  

Police in Birmingham, Alabama sprayed protesters with high-powered hoses during a civil rights protest, 1963, photo by Charles Moore

During the racial tensions in 1960s America, many protests ended in violence, especially by police. Images capture the savage behaviour in Birmingham, Alabama, where police unleashed high-powered hoses and dogs on Black protesters. In spite of such violence, they had no space to defend themselves; fighting back meant certain arrest. As Dean and Raj detailed in the discussion, sometimes authorities use this tendency towards self-defence to provoke violence and thus justify further oppression. Race riots persist in America as the fight against systematic racism and police brutality continues.  The Black Lives Matter movement (BLM), founded in 2013 and popularised after a policeman wrongfully killed George Floyd in 2020, continues the fight for Black rights. 

The fragility of protesting  

The right to protest isn’t guaranteed and must be protected. In the absence of protest, the government and other institutions could operate unchallenged.    

In Hong Kong, China enacted a new national security law in 2020 that’s a major barrier to protesting. Already, hundreds of protesters have been arrested. On paper, the law protects against terrorism and subversion, but in practice, it criminalises dissent. In the absence of protest, the powerful can ignore and silence the concerns of the masses. If a system is broken, binding together and protesting is an essential step in fixing it. Without protests, a broken system will remain broken.  

“That’s what gives rise to protests, is that refusal. That refusal to allow for social or political worlds that oppress you to continue unchecked, and to say ‘Enough’.” – Sen Raj 

Anti-protest laws aren’t a uniquely Hong Kong phenomenon. In April 2022, the New South Wales government passed more stringent legislation that punishes both protests and protesters that illegally dissent on public land. By blocking protests that prevent economic activity, critics say it’s an extremely undemocratic measure and threatens protests at large. Plus, it creates a hierarchy among protests, where some are viewed as valid while others aren’t. This raises the larger question of whether it’s the government’s place to determine which protests should be allowed. Does asking permission to protest do an injustice to the demonstration?  

A way forward 

It’s important to note that there’s no one way to protest. The textbook protest of a group of angry, fed-up citizens waving signs and shouting in the streets doesn’t always hold true. And so we’ve got to remember that protest need not look a certain way or foster radical change to be successful. It need not be a grandiose display of floats and intricate costumes parading down Oxford Street, like today’s Mardi Gras; sometimes it’s enough for one person to speak their mind.  

Raj reminds us that protest ought to be messy, joyous and painful but should include care, respect and solidarity. He encourages us to abandon the stereotypical depiction of protest and embrace the possibility of many protests. It’s limiting to try and definitively define what it means. “Protest” is encapsulating of so many movements, minor and mammoth. Instead of trying to box it into one definition, let’s find beauty in its vastness.

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The Constitution is incomplete. So let’s finish the job

On July 9, 1900, Royal Assent was given to the Commonwealth of Australia Constitution Act 1900. This act made provision for a series of sovereign colonial states to come together and form “one indissoluble federal commonwealth”. Section 6 of the act defines the states. It lists by name an initial seven colonies – and ­allows for others to be admitted at a later time.

“Hang on,” you might object, “everyone knows that there were, and are, only six states. What’s this nonsense about there being a seventh?”

Well, the framers of the Constitution wanted to recognise all of the smaller sovereign states that might make up the larger whole. So, the list included New Zealand. Indeed, when in 1902 the Commonwealth Parliament determined who could vote in federal elections, it singled out New Zealand’s Maori people for inclusion – while excluding the vast majority of Australia’s own Indigenous peoples.

This is breathtaking.

If you are wondering what any of this has to do with the proposed referendum about the Voice to Parliament, then consider this.

Those who put together the Constitution never finished the job. They left out those with the greatest claim to sovereignty of all.

Now we have the chance to finish the job – to make our Constitution whole.

We are on the cusp of resolving one of the most profound questions we face as ­citizens: will we afford constitutional recognition to the descendants of those First Nations peoples whose sovereignty was ignored by the European colonists?

A number of arguments have been put forward as reasons to oppose constitutional recognition of First Nations peoples in the form of a Voice to Parliament. Those arguments include that a Voice:

  • Weakens First Nations’ claims to sovereignty.
  • Will not lead to a tangible ­improvement in the lives of Indigenous peoples.
  • Is “racist” and undemocratic in that it affords a privilege to one “race” over all others.
  • Will increase legal uncertainty – especially when interpreting the Constitution.

In every case, framing the debate in terms of sovereignty helps us to see why these objections, while sincerely made, are not well founded.

It is feared, by some, that constitutional recognition will weaken the claims to sovereignty made by First Nations peoples. However, the Australian Constitution specifically preserves the sovereignty of each of the states that were recognised at Federation. Furthermore, all of their state laws remain intact. The only effect of the Constitution is to render state laws inoperative to the extent that they are inconsistent with valid Commonwealth legislation. Rather than destroying sovereignty, the Constitution recognises and preserves it – even as earlier laws become attenuated.

It might be objected that the First Nations of pre-colonial Australia were not “sovereign states”. However, they meet all of the accepted criteria. They may have been small – but size of territory or population does not matter (think of Monaco, Liechtenstein, Tuvalu and so on – all states). The First Nations had clearly defined borders. They had distinct laws – and processes for their enforcement. They traded – domestically and internationally (for example, centuries of trade between the Makassan people of modern Indonesia and the Anindilyakwa people of the Groote Eylandt archipelago, and others). They fought wars over people and resources and to defend their territory. All of this was anticipated by British law and policy. It was only blind ignorance and prejudice that stopped the colonists recognising the sophisticated array of states they encountered here.

A second objection is that constitutional recognition will do little or nothing to “close the gap”. Surely, Indigenous peoples have a far better idea of what is needed to address the enduring legacies of colonisation than do the rest of us. Certainly, they could not do a worse job than we have so far. So, I believe a Voice to Parliament will make a positive difference in the material circumstances of First Nations peoples. However, while important, this misses the point.

Imagine someone heading out into remote Queensland in 1899 – to tell the people living there that remaining as a crown colony might lead to better outcomes in the future. There would have been a riot in response to the suggestion that Queensland should be left a colony while the rest of the colonial states formed a federation. Even the West Australians decided to join – not because Federation guaranteed a better outcome for the people of each state, but because of the dignity it conferred on citizens of the newly established nation. It’s the same for those forgotten or ignored when the first round of Constitutional crafting was done.

The next “bad” argument claims that the creation of a Voice confers a benefit on one group of people because of their “race” – and that to do so is racist and undemocratic. Once again, the argument fails to take account of First Nations peoples as members of sovereign states. Those states existed – certainly in Natural Law (and probably more formally) for centuries prior to colonisation. The citizens of those states were exclusively Indigenous – not as a matter of racial policy but as a simple fact of history. The same would have been true of other ancient states in other parts of the world which, at one time or another, would have been made up of groups of people related through kinship and so on.

So, if we see our late recognition of the peoples of the First Nations through the lens of sovereignty and citizenship, there is necessarily going to be overlap between that citizenship and membership of a distinct group of related people.

This is not about privileging one “race” over another. It is simply acknowledging the fact that the citizens of the First Nations that we hope to recognise are all bound by a kinship grounded in deep history.

Finally, we come to the argument that an amendment to the Constitution will cause legal uncertainty – with the High Court spending wasted hours in interpreting the new provisions of an amended Constitution. If this is a valid reason for not amending the Constitution, then it is better that we should not have had a Constitution at all. Every clause in the Constitution of 1900 is open to interpretation by the High Court. Indeed, the High Court has spent a vast amount of time interpreting provisions (especially concerning the valid powers of the commonwealth). So, yes, an amendment might lead to disputes in the Federal and High Court. So what? That happens every day in relation to sections of the Constitution that are more or less taken for granted.

Finally, I am happy to see a decreasing number of people are arguing that the voice will be a “third chamber” of parliament. It will not. The Voice will be able to make representations and to advise – using whatever mechanisms the Commonwealth Par­liament prescribes. The Voice will decide nothing on its own. It cannot veto any act of parliament or decision of government.

First Nations peoples have asked for something very modest. They want to be recognised. They simply want to be heard in relation to matters that have a direct bearing on their lives.

Our Constitution is a pretty good document. However, its ­authors left something out. While recognising the sovereignty of all others (even Fiji was in the mix for a while), they overlooked those with the best claim of all.

Imagine a fence made without a gate, a car without brakes and a cake without icing. They’ll work well enough. But they’re not complete. That’s the deficiency in our Constitution – it also works well enough, but it is not complete.

Let’s recognise what was forgotten. Let’s finish the job.


This article was first published in The Australian.

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Who is to blame? Moral responsibility and the case for reparations

Reparations recently made the news after the COP27, with poorer countries demanding richer countries pay for damages caused by global warming. But, are reparations the best way to achieve justice for previous harms, and what do they tell us about moral responsibility?

Throughout the 19th and 20th centuries, western countries developed and industrialised without many (or any) regulations. Coal burning factories produced new technologies, new agricultural practices led to chemical runoff and land clearing, and global trade and travel have accelerated the production of man-made greenhouse gases. Historically, developed countries have contributed to just under 80% of total carbon emissions.

As a result, devastating floods, bush fires, droughts and storms have ruinous impacts on communities and countries. Rising sea levels threaten small island nations and coastal towns alike. The countries and populations feeling the biggest impacts tend to be poorer and have fewer resources to deal with the fallout of climate related catastrophes.

Climate change is a global issue, and it’s clearly impacting poorer, less developed countries in more drastic ways than wealthier ones. Can reparations really be a solution to such a complex issue?

What are reparations?  

Reparations are usually monetary (or something else that transfers wealth, like land) compensation, paid by a dominant group to an individual or a group that has been wronged or harmed. Reparations are usually viewed as one mechanism for remedying a past injustice. Given past injustices have created present-day inequalities and much of this inequality is socioeconomic, reparations are one way to make amends and “even the playing field.

The controversy surrounding reparations

Reparations become controversial when we overlay our common conceptions of moral responsibility. We typically view someone as morally responsible for something if they caused that thing to happen. For example, if you steal something from a store and are fully aware and in control of yourself, most people would view you as morally responsible for that action, and therefore deserving of the repercussions that come from stealing.

But, who is morally responsible for the global climate crisis? European countries have some of the most progressive climate change policies in the world today, but were responsible for the majority of emissions during the 19th and 20th centuries. On the other hand, China and India haven’t historically been big emitters, but today they are. It’s unclear who is more responsible for the state of the climate today. So, if we can’t find someone or some group directly morally responsible, should reparations be paid at all?

The case for reparations

There are two main reasons why I think our common notion of moral responsibility translates into a good enough argument in favour of reparations.

Firstly, we need to think about what inequality looks like in the world. Much of the inequality that we can observe is economic, and it is often the direct result of past injustices.

If we truly want to live in a just world, we are going to need to level the playing field, and money is one of the most effective ways to do that.

The question is: where should this money come from? Whether or not someone from a dominant group actively participated in or committed one of these wrongs, they likely experienced either direct or indirect benefits.

For example, industrialised countries have benefited from the use of fossil fuels, and generated their wealth through manufacturing and trade, which compounded over decades and centuries. To the extent that individuals and groups today have benefited from past injustices, then they owe some reparations to the groups that are disadvantaged because of those past injustices. Wealthy countries, therefore, that have compounded wealth that came from industrialising during a time where carbon emissions remained unchecked should pay reparations, even though none of the people alive today actively contributed to the climate emissions of the past.

Second, reparations acknowledge that the payer has some responsibility for the wrongs committed towards the payee. As former prime minister Scott Morrison said about $280 million of reparations that Aboriginal communities received in 2017, “This is a long-called-for step… to say formally not just that we’re deeply sorry for what happened, but that we will take responsibility for it”. Paying reparations acknowledges that harm occurred to a group of people because it recognises that there is lasting inequality that has occurred from that harm. In addition, the person or group paying the reparations recognises that they have benefitted from the harm or inequality, even if they didn’t directly cause it.

While reparations don’t promise to remove all inequality or solve every injustice, they are an important step for dominant groups to acknowledge and accept responsibility for harms of the past, as well as taking an important step to close present socioeconomic gaps.

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Are reparations the best way to achieve justice?

Sportswashing: How money and politics are corrupting sport

Many believe that sport transcends politics. But it can also be used as a political tool to distract attention from human rights abuses, making sportspeople and fans complicit.

Legions of football fans with faces daubed in their national colours fill the spotless new stadium and explode into a roar when their team lands the ball in the back of net at the FIFA World Cup 2022 in Qatar.  

From the promotional video alone, the scene seems to exemplify what people love about big sporting events: the emotional highs and lows; the vibrant carnivale atmosphere; the fierce competitive spirit; the skill of the athletes.  

But to the millions of migrant workers in Qatar, many of whom helped build the very stadiums that are to host the games, the World Cup likely means something very different.

Qatar has long been criticised for the kafala system of sponsorship-based employment for foreign workers, which has led to underpayment, wage theft and unsafe working conditions, leaving workers powerless to change their employment circumstances. Qatar also has a history of women’s oppression, with women requiring permission from a male guardian to exercise many basic rights, such as pursuing higher education, working in certain jobs or traveling abroad. LGBTI people have also been subject to discrimination and abuse in the country, even on the lead-up to the World Cup.  

So it is no accident Qatar is spending billions to host the World Cup, with estimates suggesting the government has pumped over $US 220 billion into the event – more than fifty times what Germany spent in 2006 when it hosted.  

This is ‘sportswashing.’ The Qatari government is hoping it can appropriate the positive associations fans have with football to elevate its own status on the international stage and distract from its ongoing human rights violations.  

And Qatar is not alone in the practice: Saudi Arabia, another nation with a problematic human rights record, has spent over $US 2 billion on its LIV Tour for golf; and China, criticised for its ongoing persecution and internment of its Uyghur minority, spent billions hosting the 2022 Winter Olympic Games.

But what’s so bad about a country with a troubling human rights record supporting or hosting an unrelated sporting competition? Does watching or travelling to that country to attend the competition make spectators complicit in human rights abuses? And shouldn’t sport be kept separate from politics? To answer these questions, we first need to be clear about what sportswashing is. 

What is sportwashing?

Sportswashing refers to states – sometimes individiuals or corporations – that seek to use sport to bolster their image by distracting from their wrongdoing. It’s typically not just a matter of hosting games or supporting a national team but rather pumping money into sport specifically to change people’s attitudes about them. 

Why sport?

Sport is more than just entertainment. It exemplifies what many people believe to be noble or aspirational virtues: discipline, hard work, individual excellence, teamwork. For spectators, sport generates intense feelings of belonging and a shared identity that verges on the sacred; a win for one’s team elevates oneself and one’s whole community. Sport also reaches a wide audience, including people who may not actively follow politics or world affairs.

So if a regime wants to bolster its reputation around the world, it’s hard to beat tapping into the positive associations people have with sport, especially high profile sports like golf, football or the Olympics. And all you need to do it is enough money. But what does all this money really achieve? 

First impressions

What springs to mind when you think of Qatar? For many people whatever it is will be informed by what’s in the media. And if the media has been focusing on Qatar’s human rights violations, it’s these that can define their impression of the country.   

This is why nations like Qatar are so keen to offer you new impressions. One function of sportswashing is to saturate the news – and internet search results – with topics other than human rights. If people know little about Qatar, and the World Cup pushes its human rights violations to the second page of Google’s search results, then fewer people will be made aware of them.  

There’s another upshot of sportswashing: given many people have powerful feelings about sport, if the majority of the news they hear about Qatar is connected to their beloved game, then their feelings for sport can bleed over into their impression of the country.  

Once that positive connection with sport is established, it can come to clash with negative associations they have about human rights violations, causing cognitive dissonance, which describes a tension between two opposing ideas. Most people tend to dislike the feeling of dissonance and will seek to eliminate it, often by ejecting one of the dissonant thoughts. Sportswashing nations hope that the ejected thought is the one about human rights rather than sport. 

This is where sportswashing becomes ethically problematic. To the degree that it distracts from wrongdoing, such as human rights violations, it can contribute to the perpetuation of that wrongdoing. Countries are often motivated to enact reforms when they experience pressure from other states, especially large democractic states that are reacting to internal public pressure. If the population is distracted by sport, then public pressure can wane. 

Just not cricket

Sportswashing is insidious, as it co-opts something that is otherwise benign and makes those who innocently endorse it complicit in achieving a political end.

But just because someone was not aware of, or chose to ignore, the political dimension of the sporting event, that doesn’t mean they are absolved of responsibility. Sadly, sportswashing makes anyone involved in it complicit to some degree. 

If we believe that our ethical obligations extend to those parts of the world that we affect through our actions, then we must consider how our spectating or participating in a sportswashing event might contribute to perpetuating human rights abuses. If we are paying to attend a sportswashed event, we are contributing financially to enabling that event to take place, and through our attendance, we are normalising that activity for others. 

There is an even greater ethical weight placed on the shoulders of sportspeople, who are often viewed as role models and whose behaviour can be seen to normalise certain values. This is why we place such emphasis on sportspeople behaving responsibly on and off the field, such as in nightclubs or in their private relationships. 

If a sportsperson accepts money to participate in a sportswashed event, that sets a standard for others. And if they are aware of the ethically problematic nature of their hosts, then this opens them to a charge of hypocrisy, as in the case of Phil Mickelson, one of the world’s top golfers, who accepted $US 200 million to join the LIV Tour despite admitting he was aware of Saudi Arabia’s “horrible record on human rights”. 

Washing sport

However, there are ways of pushing back against sportswashing. The first is to refuse to support it financially, such as by not buying tickets to the events or subscriptions to the coverage in the media. For some, this will mean missing out on watching a sacred sporting event, and it’s important not to understate how big a cost that might be for them.  

However, if they choose to watch, they can consider how to reduce or nullify the impact of the sportswashing. That could involve informing themselves and others about the true state of affairs, reducing the informational distortion caused by sportswashing. In fact, there is evidence that Qatar’s World Cup sportswashing gambit may be backfiring by drawing attention to the very human rights issues it hopes to distract from. 

Sportspeople have an even greater responsibility but also a greater potential impact for good. Some have refused to participate in sportswashed events, such as golfer Tiger Woods, who reportedly turned down an offer in excess of $US 700 million to join the Saudi-backed LIV Tour.  

In some cases, participating in a sportswashed event can be offset if the individuals work to counter the sportswashed narrative, as in the case of the Australian Soccerros, who released a protest video about human rights in Qatar. While they are playing in the World Cup, they have used their platform to support migrant workers and the decriminalisation of same-sex relationships in Qatar. Football Australia also released a similar written statement. Arguably, more Australians now know about Qatar’s human rights record than if the state had never been chosen to host the World Cup. 

When states are involved in funding sport, then sport can no longer be said to be removed from politics. Through sportswashing it becomes a political tool. If we want to maintain sport as a pure and sacred pursuit, then we must consider how we choose to engage with it and how we might avoid or counteract the power of sportswashing to distract or normalise wrongdoing.  

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Should sport be kept separate from politics?

Should corporate Australia have a voice?

The Albanese government is preparing for the fight of its life to convince Australians an Indigenous advisory body, known as the Voice to Parliament, should receive a simple “yes” in a referendum not due to take place until at least mid-2023 – but whether the Australian business community should abstain or pick a side in the campaign is a little more complex.

Some business leaders have already openly backed the Voice. CSL’s Brian McNamee called embedding Indigenous people into our Constitution for the first time nothing less than a “greater need” for the nation. Lendlease’s CEO Tony Lombardo said his company was “right behind” the Uluru Statement from the Heart and had urged his staff to think deeply about the constitutional amendment and the benefits for our First Nations peoples and the broader Australian community.

But business taking a public stance wasn’t always so. In decades prior, corporations strained to stay impartial by not weighing in on heavily politicised or social issues, seeing it as a polarising death wish amid the cohort of its customers who may err to the other side (though big political donations were a telling exception to this unofficial rule).

But the rise of social media in the era where progressive politics has assembled earth-shaking movements like Black Lives Matter, #MeToo and the fight to stop climate change has created a corporate environment where it’s not only expected companies to weigh in on big-ticket items – it’s great for business if they do.

Nearly 80% of Australians believe big brands should use their power to make an impact for real-world change on social and workplace inequality, according to research conducted by Nine and cultural insights agency FiftyFive5 – and it can turn into big bucks for corporations.

When beloved ice cream brand Ben & Jerry’s, which accounts for 3% of the worldwide market, announced in 2021 that it was stopping sales “in the Occupied Palestinian Territory (OPT)” because it was “inconsistent with our values”, Ben & Jerry’s sales saw a 9% yearly growth (though frustrated parent company Unilever denied the two were linked).

And it seems the Albanese government is all but expecting corporate Australia to take a stance on the Voice one way or another. In 2019, Prime Minister Anthony Albanese declared to the Business Council of Australia that business should feel free to speak out on social issues that align with their values.

“The most successful businesses operate in ways that reflect the values of their employees and their customers,” the then-opposition leader said.

“You are not just takers of profit – you see yourselves as part of the community.”

Albanese’s comments followed a heated speech from Scott Morrison’s assistant minister Ben Morton declaring chief executives “too often succumb or pander to similar pressures from noisy, highly orchestrated campaigns of elites typified by groups such as GetUp or activist shareholders”, foreshadowing the Teal uprising in the May federal election.

But corporate activism doesn’t have to mean go woke or go broke – as long as a company is seen as being consistent with its long-held values, a customer base or wider community will accept a more conservative position on a social or political issue too, as Daniel Korschun and N. Craig Smith write for the Harvard Business Review.

“People are surprisingly accepting of a company’s political viewpoints as long as they believe that it is being forthright,” the pair write.

“When a company makes sudden changes to its procedures or identity, it can raise red flags, especially with consumers for whom reliability is essential.”

To this end, a corporate in Australia that openly supports the “Yes” campaign for the Voice to Parliament may first quietly seek to understand the company’s own history with Indigenous Australia to avoid damning accusations of “woke washing” from the public.

Director of The Ethics Alliance, Cris Parker suggests leaders seek the answer to questions like: how many First Nations people are employed at the organisation, and is it far less than the 3% in wider society? Has the organisation proactively supported these staff, providing a culturally sensitive environment that recognises Indigenous rights? 

“Basically, are you living the values of whatever social issue internally that you are considering speaking out about publicly?” Parker says.

For instance, when Nike released its “Dream Crazy” campaign to support Colin Kaepernick taking a knee during the American national anthem to protest police brutality, some were quick to point out Nike’s own reputation for using the sweatshop labour of people of colour abroad in countries like China.

Further, hot-button issues can polarise people not only within the customer base but within the work culture. Parker suggests that a corporation may add the most value during this time by fostering an environment where people can respectfully share ideas and reflect on issues together.

“Perhaps standing on a pedestal isn’t the approach which will have the greatest impact. Perhaps the impact of corporations is to demonstrate the ability to create spaces where there can be civil and informed debate – not to provide the decision or choice but to impartially inform employees and encourage intelligent enquiry,” Parker continues.

“When organisations shift to a specific advocacy position, particularly if it’s about members of our community, they risk disempowering those members and really we should be supporting self-determination.” 

The best way to do this? Go back to the work culture, Parker suggests, and seek to use organisational values to create space for discussion, where crucially, everyone can feel included in the conversation.


Image by Matt Hrkac

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Why fairness is integral to tax policy

Pick up a first-year undergraduate economics textbook on tax and you’ll likely be apprised that there are three desired features of a tax policy: simplicity, efficiency and fairness.

The importance of the first two are somewhat obvious. Simplicity, because taxpayers need to understand how to comply with the tax system. Efficiency, because if people can easily change their behaviour to avoid paying tax, there won’t be much revenue to fund government expenditure. But fairness, the third desired feature of tax policy, is more nebulous.

Tax fairness is important not merely because economists tell us so. Rather, Australia needs to consider tax fairness for reasons such as: ensuring the continued political legitimacy of the Australian governments; because tax inherently deals with issues of inequality; and for the very practical reason of helping us deliver tax system reform.

In a liberal country such as Australia, a well-accepted norm is that restrictions on individual freedom must be justified. And in liberal philosophy, the dominate way to justify government restrictions is by considering a “public reason” test, well-articulated by influential twentieth century philosopher John Rawls’ liberal principle of legitimacy:

“Political power is legitimate only when it is exercised in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason”.

Restrictions that are arbitrary, unfair, exploitative or focus on benefitting a few at the expense of the many, undermine political legitimacy because they cannot be justified. Prohibiting the Nazi swastika might be justifiable because people have a right not to be vilified or feel physically threatened. But prohibiting tattoos or facial piercings, dress wear, beach outfits or more sinisterly, citizenship based on skin colour, because they offend certain sensibilities, are not legitimate forms of government coercion because they cannot be reasonably justified using the public reason test.

Rawls considered the public reason test would apply to areas in the public domain relating to judges, government officials, and politicians. And the public reason test applies to taxation as much as any other act of government coercion. Taxation, the compulsory, unrequited payment to government, is quite literally nothing, if it is not coercive. In Australia we pay around $600bn in tax each year, over $40,000 per working person.

If the tax system is unfair, it cannot be justified. And taxation that is unjustified etches away at the political legitimacy of the Australian government and, in turn, Australian democracy.

The two primary functions of tax are:
1. to fund public goods such as military, transport, education, police and the judiciary
2. to redistribute wealth and income, through policies such as pension payments, unemployment payments, childcare and paid parental leave. Therefore, because tax impacts wealth and income distribution, as well as economic inequality, the tax system has inherent fairness implications.

Wealth and income distribution, the second function of tax, determines economic inequality, an inherent fairness issue. And to determine the required tax level requires consideration of the level of wealth and income inequality we consider fair. It might be said this issue is more relevant today than in other times in our recent history; Australian inequality measures have increased steadily since the 1980s. But even if we consider current wealth and income inequality levels as acceptable, presumably there is a limit. It is unlikely that Australia would still be considered a fair country if we were a nation of 20 billionaires and twenty million paupers.

One might be tempted to try and decouple tax issues from fairness issues by claiming Australia and our tax system is fair so long as we have equality of opportunity; instead of worrying about wealth inequality and tax, we should focus on realising Australian cultural values such as a “fair go”, a value synonymous (according to the citizenship tests new citizens take) with “equality of opportunity”.

However, a “fair go” isn’t free. For a rich child and a poor child to have the same opportunities with respect to education, learning and a successful career, we require tax. For equality of opportunity to exist, the rich parent needs to contribute more tax to fund our education institutions than what the poor parent can afford. Here, issues of tax and fairness are bound.

A less philosophical reason as to why it’s important for Australia to consider tax system fairness relates to tax reform. The consensus among economists is the Australian tax system is uncompetitive, inefficient, too complex and out of date. And they may have a point.

Australia hasn’t had meaningful tax reform for decades and is out of step with international best practice. The Federal Government deficit is large and growing, thanks in part to the former government’s COVID-19 splurges (some necessary, some arguably less so). And Australian government debt is forecast to reach a trillion dollars in the coming years, a level that may limit or preclude policy responses to future wars, pandemics, financial crises or property market crashes (and the implications of muted policy options is not merely no pink batts or no JobKeeper in time of catastrophe, but no jobs, high unemployment and potential social unrest).

Yet despite the arguments of a host of economic experts, such as ANU’s Professor Robert Breunig the former Federal Treasury head Dr. Ken Henry, OECD and IMF mandarins, to name but a few, the Australian tax system remains as it is. While tax reform by its nature is challenging (there is always a loser – someone will be paying more), it’s hard not to think the focus on tax efficiency, tax competitiveness, tax complexity and so on and so forth, has failed to create the “burning platform” needed to drive policy change. A greater focus on the fairness of the Australian tax system may be what is required to buttress the valid but sometimes technical economic arguments for Australian tax system reform.

Considering fairness of the tax system is important for political legitimacy, inequality and practical reasons. A tax system that is fair strengthens our democracy by ensuring taxation remains justifiable. Tax fairness helps us realise Australian cultural values such as equality of opportunity. And a greater focus on tax fairness might help us undertake meaningful tax reform, delivering a tax system that is simple, efficient and fair.

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(Roe)ing backwards: A seismic shift in women's rights

Standing in the middle of Washington Square Park in downtown Manhattan, on the 24th of June, I propelled a sign skyward that read: Abortion Is Healthcare. There were thousands of other slogans, on posters and placards, all being hoisted repeatedly by protesters equally aggrieved by the overturning of Roe v. Wade. 

Earlier that same day, at 10 AM, the United States Supreme Court had overturned the ruling of the original monumental case. Since 1973, Roe v. Wade had protected the constitutional right to privacy for nearly half a century – ensuring that every woman in the US could obtain an abortion without fear of criminal penalty. But the repeal of this landmark case has unfortunately handed the regulation of abortion back to each individual state. And now, approximately 20 US states are set to once again criminalise or entirely outlaw access to abortions, despite two-thirds of its citizens being in favour of abortion.  

So how will this loss of privacy constrain women’s autonomy?

The right to an abortion protects women from bodily harm, insecure financial circumstances, and emotional grief. The medical procedure allows a woman to maintain bodily autonomy by affording the choice to decide when, or if, she ever wants a child. Abortion acknowledges a woman’s right to live life as she intends. Banning abortion severely compromises that choice. Further, it does not reduce abortion rates but instead forces women to seek abortion elsewhere or by unsafe means. In 2020, over 900 000 legal abortions were conducted in the United States by professionals or by mothers using medication prescribed by physicians.

Banning abortion places a hefty burden on women, suppressing their autonomy.

The Legal Disparity Pre-Roe

Before Roe, women in the United States had minimal access to legal abortions, which were usually only available to high-income families. Illegal abortions were unsafe and in 1930 were the cause of nearly 20% of maternal deaths. This is because many of them relied on self-induced abortions or asked community members for assistance. Given the lack of medical experience, botched procedures and infections were rife.  

Pre-Roe abortion bans harmed and further disadvantaged predominantly low-income women and women of colour. In 1970 some states allowed abortion. However, given the lack of national support, women were expected to travel long distances for many hours, which placed their health at significant risk. Once again, this limited access created unequal outcomes by only providing access to select women with means to travel and financial security.  

Post-Roe Injustice

Post-Roe, the outcomes appear just as grim. In a digital landscape, technology brings benefits but also comes at a cost, introducing new vulnerabilities and concerns for women. While technology equips women seeking abortion to find clinics, book appointments, and help with travel interstate, it can also amplify the persecution of women when abortion is criminalised. For example, in 2017, Mississippi prosecutors used a woman’s internet search history to prove that she had looked up where to find abortion pills before she lost her foetus. And currently, since the recent ruling, clinics are scrambling to encrypt their data, while others are resorting to using paper to protect their patients’ sensitive information from being tracked or leaked

Unfortunately, there are also concerns that data could be used from period tracking apps and location services to further restrict women from accessing abortions. In previous years, prosecutors and law enforcement have wrongfully convicted women for illegal abortions by searching their online history and text messages with friends. Now that abortion is criminalised in some states, there are worries of increased access to private information that could be used against women in court: specifically the use of third-party apps that sell information which would further isolate women and reduce their ability to receive competent care, which in some states could be accessed without their consent. 

The United States Department of Health and Human Services, known as HHS, released a statement on June 29th about protecting patient privacy for reproductive health. It states that “disclosures to law enforcement officials, are permitted only in narrow circumstances” and that in most cases, the Health Insurance and Portability and Accountability Act (HIPAA), commonly known as a privacy Act, “does not protect the privacy or security of individuals’ health information” when stored on phones. The guidance continues by suggesting how women can best protect their online information. For women to defend themselves, they must take extra precautions such as using privacy browsers, turning off locations, and using different emails.  

These additional measures are troubling as they stipulate how women receive care. Placing the onus on women, the risk of information leaking limits access to resources and further restricts the privacy and autonomy of pregnant women as it creates fear of constant surveillance.

Further, it places people seeking care at a significant disadvantage if they do not know what information is protected and what is not.  

Post-Roe, the medical landscape will also begin to shift. Abortion care is not uncommon in other procedures conducted by obstetricians and gynaecologists (OB-GYNs). Abortion care can overlap with miscarriage aftercare and ectopic pregnancies, creating murky circumstances for physicians and delaying care for patients as they wait for legal advice and opinion. In other cases, abortion care is necessary when pregnant women have cancer and need to terminate the pregnancy to continue with chemotherapy.   

By restricting abortions, many physicians will be unable to provide adequate care and fulfil their duty to patients as they will be restricted by governing laws which will hinder further practice if persecuted. Any delay in receiving an abortion is an act of maleficence, as the windows to receive abortions grow increasingly slim and the restrictions grow tighter, the process inhibits providers from treating women seeking an abortion which obstructs beneficent care. As a result, many women will lose their lives from preventable and treatable causes. 

Criminalising abortion will warp access and create unnavigable procedural labyrinths that will change the digital and medical landscape. Post-Roe United States will continue to breed fear and control over women’s lives. Criminalising abortion will isolate women from their communities and obstruct them from receiving competent medical care and treatment. Banning abortions will place an undue burden on women and will unfairly jeopardise their health and right to access care. 

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We are on the cusp of a brilliant future, only if we choose to embrace it

Speaking a couple of days after the 2022 Federal Election, renowned Australian journalist, Stan Grant, noted that although the election of the Albanese government had been a moment of national ‘catharsis’, it was more difficult to discern in the result a commitment to a clear, positive direction for the nation. In that sense, the future shape of Australia remained an ‘open question’.

This was not to deny that the Australian electorate seemed to express, through their vote, a few clear preferences: an end to the debilitating ‘climate wars’, higher standards of integrity in federal politics and more generally, a preference for a more diverse and inclusive form of representation in our national parliament and government.

There is every reason to believe that these expectations will be met. Indeed, one might be encouraged to hope for something more. For example, it was remarkable that the first utterance of Prime Minister Albanese, on claiming victory, was to promise a referendum to enshrine in the Constitution an Indigenous ‘Voice to Parliament’ as called for in the Uluru Statement From The Heart. The surprise in this was that this issue had barely been mentioned during the election campaign – yet had clearly loomed large in the mind of the new PM.

So, what else might we aim to achieve as a democratic nation endowed with the most fortuitous circumstances of any nation on earth? Yes, despite the current ‘doom and gloom’, we are on the cusp of a truly brilliant future – if only we choose to embrace it.

We have everything any society could need: vast natural resources, abundant clean energy and an unrivalled repository of wisdom held in trust by the world’s oldest continuous culture supplemented by a richly diverse people drawn from every corner of the planet. However, whether this future can be grasped depends not on our natural resources, our financial capital, or our technical nous. The ultimate determinant lies in our character.

Three forces can shatter our path to prosperity. First, enemies from without who seek to exploit our grievances and divide our nation into warring factions. Second, a collective fear of the unknown and a lack of trust in those who would lead us there. Third, a lingering, persistent doubt about the legitimacy of a society that violently dispossessed the first peoples of our continent.

Each of these threats can be neutralised – if only we have the collective will and the courage to do so. With this in mind, I have outlined below a set of core, national objectives that I think would secure the endorsement of a vast majority of Australians. It is the realisation of these objectives that will unlock the brilliant future that is available to all Australians.

In five years, we can fashion a society that is at ease with itself and its place in the world. We can have sown the seeds out of which will grow a universal sense of belonging – a gift bestowed by First Nations people who have only ever asked for respect, truth and justice. That sense of unfettered connection, informed by an Indigenous understanding of country that has grown over time immemorial, will be the glue that binds us into one people of many parts. Once established and reinforced, nothing will dissolve that bond.

In five years, we can grow the confidence to embrace radical change – confident that no individual or group will be asked to bear a disproportionate burden while others take an unfair share of the gains. Our commitment to a broadly egalitarian society will move from myth to reality. While we may not all rise to equal heights, no one will be left to fall into the depths of neglect or obscurity. This will allow us to be brave, to take risks and to harvest the rewards of doing so.

In five years, we can be better led. Confidence can be restored in our governments – that they will truly honour their democratic obligation to act solely in the public interest – whether in their use of public resources or in the policies and practices they adopt.

In five years, the aged, the sick and infirm should be cared for by a workforce who are properly valued and rewarded for their support of the most vulnerable.

In five years, all Australians should have a genuine opportunity to make a home for themselves in affordable, secure accommodation.

In five years, everyone should feel more safe and secure in their homes, their workplaces, their cities and towns.

In five years, a confident Australia can build and reinforce enduring alliances with nations who share our desire to live in a just and orderly world free from the heavy yoke of authoritarian governments.

All of this is possible. For the most part our physical and technical infrastructure is world class. Our ethical infrastructure could be better. We need to invest in this area – confident that in doing so we will unlock both social and economic benefits of staggering proportions. As Deloitte Access Economics has estimated, a mere 10% increase in the level of ethics in Australia would lead to an increase in GDP of $45B (yes, billion) every year – not through some kind of ‘magical effect’ but as a direct consequence of the increased trust that better ethics would create.

Do this and we can embrace the brilliant future that beckons us.


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You won't be able to tell whether Depp or Heard are lying by watching their faces

The Johnny Depp and Amber Heard defamation trial is now over.

Heard has been found guilty of defaming the actor with an op-ed she wrote – that did not name him explicitly – about being a survivor of domestic violence. Depp’s legal team too has been found guilty of defamation, but the amount that Heard has to now pay Depp is a much higher figure than he has to pay her.

The proceedings are done. But the media reaction to the trial – both from traditional outlets, and the deluge of posts about it crowding every single social platform like ants across an old plate of food – will linger.

This is because, in many circles, the all-too public spectacle has been treated like an unprecedented event. Pored over ad nauseum, it has been subject to endless thinkpieces, YouTube breakdowns, and Twitch streams. Twitter is awash with “fan edits”, compilations of carefully selected moments cut to the jaunty music usually associated with dance trends, or videos of dogs playing with each other in suburban backyards. There’s no use blocking keywords associated with it on social media. Videos still find a way to slip through, because the trial is everywhere. 

This isn’t so surprising. The trial is on one level, a glimpse into the personal lives of the usually alien upper class. On another, it is shocking and disturbing enough – whichever side one takes – that it provides the vicious thrills that a culture which has become obsessed with true crime obsessively seeks out. This is all information, content. But how much of it do we need to make an informed decision about the outcome of the trial? And more than that, is this a useful kind of information? Where does it lead us? What does it give us?

The trial is foreign, it’s taboo, it’s ugly, and it’s glossy. What it isn’t, however, is quite as novel as it first seems.


Old Stories; New Faces

Much like the O.J. Simpson trial, or the proceedings against Lindy Chamberlain-Creighton, the Australian woman who claimed a dingo ate her baby, the Depp/Heard case is an example of a media-captivated society channeling abstract arguments through the lens of a high stakes legal proceeding, populated by faces that viewers have already developed complex parasocial relationships with. And, importantly, in each case, there has been an intense public scrutiny on how the figures in these cases should act – a fixation on their body language, their expressions, and the way they sound out words.

During the Simpson trial, the abstract arguments at play concerned race relations. Now, the tensions underlying the Depp/Heard trial are to do with what is sometimes referred to as our “post-metoo world”, a culture that has seen abusers reckoned with, and vast systems of deception that protect those abusers brought to light. 

All of these court cases represented, and now represent, an opportunity for the public at large to discuss topics they might not normally have considered polite to bring up at the dinner table, or around the water cooler. “Is O.J. guilty?” was a way of saying, “tell me what you think about race and class in this country.” “Is Amber Heard a liar?” is now a way of saying, “what do you think abuse looks like? And what do we do about it?”

But there is at least one way that the Depp/Heard trial is involved with a trend that is breaking new ground. Unlike the Simpson trial, or the case against Chamberlain-Creighton, most viewers are watching the case through the internet. In turn, that means viewers have a unique ability to craft their own content about the proceedings, filtering key moments pulled from hours of footage through whatever pre-existing narrative they have constructed about the hero and the villain of this painful, and very sad story.

These content creators, who are often cutting together their videos in their spare time for no gain except rallying their audience around them, can watch over the trial’s footage as frequently as they like. They can scrutinize the same few seconds over and over; slow stretches of it down; freeze them in place. 

In turn, that has turned a growing number of these amateur video essayists into amateur psychologists. A large subset of Depp/Heard content creators have come to believe that they can work out which of the players are lying by closely watching their expressions, unpacking their body language, and picking over the slightest tic, or absent gaze. For these sleuths, the case’s conclusion is as clear as Heard’s grimace, or the smile unfurling in the corner of Depp’s lips.

Embed from Getty Images


The Face Of A Liar

Those who seek to excavate the “truth” hiding beneath the trial by studying the body language and facial expressions of Depp and Heard start from a justifiable philosophical position. It was the philosopher Baruch Spinoza, a famous monist, who believed that every bodily state is underwritten by a mental state. For Spinoza, all things are of the one matter – variously called “nature”, or “God” by his intellectual interpreters. On this view, there is no distinction between any two substances, let alone a distinction between the way we hold ourselves, and what we think. The mind is the body, and the body is the mind.

From this starting point, it makes some sense to believe that the flesh might hold some insight into the secret thoughts and desires of two people who are very famous and very rich – and thus largely inaccessible, because nothing buys privacy like money and influence. Or, if not insight, then evidence gathered as post-hoc justification. Decisions as to guilt change based on a variety of factors – but they’re sometimes made early, and data can be gathered after those decisions have already been made, propping up pre-existing positions.

The mistake, however, is to generalise what these embodied states look like, and thus to generalise the emotional and mental states they are tied to.

There is, quite simply, no one way that all of us look when we lie, or are distressed, or happy. We are distinct in the way that we consider the world around us, and thus distinct in the way that we physically appear when we do.

Many of the “tell-tale signs” that get neurotically returned to, over and over again, on social media – Heard’s tone of voice, Depp’s drawl – could have any number of associated affective states, from anxiety, to pain, to yes, perhaps, the desire to lie. “It can be tough to accurately interpret someone through their body language since someone may feel tense or look uneasy for so many reasons,” said the therapist and author Dr. Jenny Taitz. 

If we follow Spinoza, we will believe that our bodies and our thoughts are intertwined – but that’s not the same as saying the former will reveal the latter. These are slabs of affect, expressed both physically and mentally, but they are not as easily comprehensible as that makes them sound.

Indeed, psychological studies have proved for decades that none of us are skilled when it comes to weeding out those spinning “falsehoods”, and those not. A 2004 study of lying found that “agents of the FBI, the CIA and the National Security Agency – as well as judges, local police, federal polygraph operators, psychiatrists and laymen – performed no better at detecting lies than if they had guessed randomly.”

There is, after all, an immense social advantage to picking liars. If we could do it, and do it reliably, then that would be an invaluable skill, one we would expect to spread and be adopted across communities quickly. The fact that there is no dominant method of analysing the way our bodies twist and pose when speaking in itself speaks to the impossibility of using faces to get at what we mean when we talk about “the truth.”

Moreover, even most “body language experts” – an increasingly popular and media-saturated sub-set of pop psychologists, who have almost no science to back up their claims – admit that we need to get a baseline of our subject’s physical reactions before we can even attempt the fraught and mostly doomed work of trying to understand if they’re lying. 

Which is to say, we need to at least know what people look like when they’re telling the truth before we can tell if they’re not. And we don’t know Johnny Depp, or Amber Heard, despite the illusion of closeness granted by social media. We don’t have enough data about how they move through the world, or what they look like when they do. How could we possibly guess at the motives and thoughts of utter strangers?


The Actors

Heard’s critics in particular have developed the line that she is a “performer”, going through the mere motions of grief and trauma – and not particularly well. They highlight a moment in which Heard appeared to pause while waiting for a cameraperson to snap a picture of her pained face, and another in which she seemed to flicker, composing herself for her next line as an actress on set would.

Of course, Heard is performing, on some level. But she is not performing in a way different to Depp. Though his defenders do not often note it, he too is signaling to the cameras, and to the jury – his smiles, and asides to his legal team, make that clear.

Nor, even, are these two distinct from the rest of us. We are all performing. We are social creatures, who have the ability to tell when we are being watched by others. Theory of mind, the term used to describe our understanding that other human beings see and think like we do, means that we can throw ourselves into the perspective of our observers. We do this constantly. It is part of what it means to have a body, and to be a person.

As philosopher Jean-Paul Sartre pointed out, we don’t even have to be actively watched to know that we could be watched. We carry with us the sense that we are what Sartre called a “thing in the world” – an entity that, at any time, could be stumbled across, and studied. As a result, we are always aware of ourselves, and how we might appear. Even when we are totally alone, we are never really alone. We are always with others – whether they’re flesh and blood observers, or ones we’ve made up in our head.


Where The Truth Lies

None of this has been an attempt to argue that Depp is telling the truth over Heard, or vice versa. It is not even a question of “truth”, as that word has been contemporaneously used.

The binary between the “real” and the “fake”, aggressively emphasised in media reactions to the trial, is itself overly simplistic, an outdated harbinger dangerously trickled down into the culture by analytic philosophy.

That is not to diminish the hurt, or the trauma, that clearly sits at the centre of the trial. That pain is real. That pain can be understood, but only when we look at the evidence in totality – the actual evidence, not the faces on the stand – and then causally tie it to certain parties. 

We should, however, remember there is no objective state of affairs – no perfect place from which, like God, we can dispel the lies and embrace the world as it really is. The judge overseeing the Depp/Heard trial is not neutral. None of us are. At best, in this case as in so many others, we should, like the great pragmatist Richard Rorty, argue for ethnocentric justification for our claims, rather than tying them to a standpoint that sits outside of history, and belief, and bias. In doing so, we can embrace the changeability of our own positions – not on guilt and innocence, exactly, but the societal pressures that are so at play here – and examine them, seeing them as the flexible systems of thought that they are.

Throughout, however, we should remember that whatever we’re looking for when we hope to untangle a messy and painful relationship between two strangers who we will almost certainly never meet, it will not be found in their faces.

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