Survivors are talking, but what’s changing?

At the Australia-wide March4Justice rallies in 2021, Brittany Higgins (a former Liberal Party staffer) and Grace Tame (Australian of the Year 2021) delivered speeches in Canberra and Hobart, respectively. Higgins was raped inside Parliament House. Tame is a survivor of child sex abuse. Both called for changes in Australian culture and our institutions to prevent “abuse culture” and to ensure the safety of those most vulnerable to sexual assault.

On Wednesday 9 February 2022, both women gave respective addresses at the National Press Club (NPC) in Canberra. Both criticised that too little had changed since they spoke at these rallies. (Though, the day prior to the addresses, Prime Minister Scott Morrison finally apologised to the survivors of sexual harassment and assault endured by employees in federal parliament.)

In her NPC address, Higgins explained her rationale for making her sexual assault public:

“I made my decision to speak out because the alternative was to be part of the culture of silence inside Parliament House. I spoke out because I wanted the next generation of staffers to work in a better place.”

She then lamented:

“I’m worried what too many people beyond the government and the media took out of the events of last year was that we need to be better at talking about the problem…. I’m not interested in words anymore. I want to see action.”

To clarify, the words Higgins is not interested in anymore are “weasel-words” – she is not advocating against free speech, nor rejecting the need for conversations on the prevalence of sexual abuse.

Embed from Getty Images


Tame and Higgins both believe we need institutional changes to address this issue. And if we are to take anything away from the NPC addresses – and we should – it is this: institutional change must be tackled actively – though not all institutions are formal; we must challenge abuse of power – though not all power is formally bestowed; and those who are in formal positions with considerable power must act effectively.

To that end, Tame explicitly identified three necessary steps that must be taken to progress social and institutional change.

  1. Take sexual violence seriously – this means taking proactive measures to prevent it.
  2. Provide adequate funding to actually implement the proactive measures we need.
  3. Create consistent legislative reforms. For example, sexual assault of a child should not be named “maintaining a relationship with a person under the age of 17,” which was the law Tame’s rapist contravened. All such forms of child sexual abuse should be named for what they are. Abuse.

And, according to Higgins’ response during NPC question time, a greater gender balance in Government would help immensely.

Tame and Higgins have told Australia exactly what we need to do – so why isn’t Australia making adequate progress? Higgins clearly believes that the LNP Government, and Prime Minister Scott Morrison in particular, could be doing more to prevent such heinous acts. She explains:

“I wanted him to use his power as Prime Minister. I wanted him to wield the weight of his office and drive change in the Party and our Parliament, and out into the country”.

In spite of Morrison’s apology, and even in light of the 28 recommendations for change in parliament workplaces following an independent review headed by the Sex Discrimination Commissioner (AKA the Jenkins’ review), Higgins perceives too little action, reminding us:

“Last year wasn’t a march for acknowledgement and it wasn’t a march for coverage. It wasn’t a march for language. It was a march for justice, and that justice demands real change.”

It is time to hold power to account.

On the matter of power, note its informal use. During her NPC address, Tame revealed that she had received “a threatening phone call from a senior member of a government funded organisation” ‘asking’ her not to say anything negative about the Prime Minister because “you are influential”. But Tame did not have the power in this exchange – the caller did.

Then there is the press, another crucial institution with an immensely powerful role to play in shaping the attitudes of the populace.

But what media seem not to care about, says Tame, is how trauma is often reinforced through powerful institutions like the press.

Since being named Australian of the year in 2021, Tame reports being: “re-victimised, commodified, objectified, sensationalised, delegitimised, gaslit, and thrown under the bus by the mainstream media.”

Strikingly, in spite of Tame’s reprimanding of the press for their re-traumatising actions, the anonymous phone call to Tame became the centre of the mainstream media’s focus of the NPC addresses – with Higgins’ contribution essentially written out of the narrative. Suddenly it was necessary and urgent to find the identity of this mystery caller and for the Prime Minister to assert intent to discover which agency was responsible (and, in so doing, delicately removing himself from the realm of complicity in this abuse of power).

Then, on 14 February, the Daily Mail ran a photo of a teenage Tame seated with what appears to be a ‘bong’ (a device for smoking marijuana). One can only presume that the decision to publicise this photo, which implicates Tame in undertaking illegal behaviour, would have the effect of tarnishing her public image. Media are supposed to report neutrally, not run smear campaigns.

On 19 February, Tame responded publicly via Twitter to all media who published “that” photo, stating:

“At every point — on the national stage, I might add — I’ve been completely transparent about all the demons I’ve battled in the aftermath of child sexual abuse; drug addiction, self-harm, anorexia and PTSD, among others. You just clearly haven’t been listening.”

She then goes on to chastise the media:

“By point-mocking a symptom of a bigger picture, you’ve reinforced the imbalance of an already skewed culture. You’ve chosen to punish the product of an evil, not the evil itself. This is precisely why survivors don’t report. Congratulations.”

Inertia and smear campaigns are just two of the ways institutions can perpetuate abuse culture, also known as ‘rape culture’.

Embed from Getty Images


Philosopher Claudia Card has argued that ‘rape’ (here, meaning any and all sexual assault) is a terrorist institution. Sexual violence – a social practice – is gendered. We live in a world of “social norms that create and define a distribution of power among and between members of the sexes”. This is a type of social identity power – a power that is informally maintained through our actions and our assumptions about the way the world necessarily is. Women fear what men can do to them. Terror of this kind is manipulative. And terror is a shortcut to power.

Rape is also an institution (in an informal sense) insofar as it is “a form of social activity structured by rules that define roles and positions, powers and opportunities.” Cisgender men are usually the perpetrators of sexual assault, and women and children (including male children) are usually the targets of that assault. “For the most part,” says Card, “the rules become ‘second nature’, like the rules of grammar, and those guided need not be aware of the rules as learned norms”.

While I want to emphasise that not all – nor even most – cisgender men commit sexual assaults, that cisgender men can be victims of sexual assault, and typical targets (women and children) can be perpetrators, the constancy of this type of activity – in 2018–19, the majority of sexual assault offenders recorded by police were male (97%) – leads to the impression that sexual assault (tacitly: of women and children) is inevitable.

Since there is a social practice – an open secret – of women and children being sexually abused, women become socialised to fear sexual abuse. Women live in a state of apprehension, always on alert for signals of danger. Cisgender men (who have not experienced assault) do not have to live this way.

Thus, if ‘rape’ really is an informal terrorist institution in Australia, it would follow that one of the reasons Australia is yet to meet Tame’s first requirement – to take sexual violence seriously and to take proactive measures to prevent it – is because we have not yet disregarded the assumption that sexual abuse is inevitable. People may be working on changing such tacit assumptions, but on a mass scale we are yet to shift the dial.

This leads us to Tame’s second ask: adequate funding. Help the people who are doing the re-educating, who are running shelters, who need to access specialist legal services, who are training medical professionals in sexual assault cases, increasing access to psychologists, and improving the child welfare system. The list goes on. And, in Higgins’ view, if there were more women in Parliament, this issue would be taken more seriously – even though “quotas” is a “dirty word” to the Liberal Party, she revealed in question time.

Finally, we reach Tame’s third driver of change, to which her foundation has been working: creating consistent legislative reforms wherein, for instance, there is no reference to a sexual “relationship” between an adult and a child. However, one foundation can only achieve so much – we need a more proactive approach.

Higgins and Tame both identified the barriers to overcoming trauma, while making suggestions on overcoming the abuse culture that has been absorbed into some of our most powerful institutions. Thus, institutions are not off the hook. They have their role to play in dispelling both rape culture and challenging the presumed inevitability of sexual abuse.

Given this, why did the media sensationalise Tame’s anonymous caller, why was Tame smeared, and why was Higgins cast out of the media spotlight? Why is the Government dragging its feet on reform? Why do people keep spreading “that” photo on social media?

One problem, it seems, is this: while Higgins and Tame were indeed given a platform from which to speak, what they said was not really ‘heard’ (that is, properly understood) by the media, by politicians, and even by the public. When one is not heard properly, one is effectively silent. Silence is exactly what Higgins was trying to escape. And yet, it seems that what is said too often makes little difference.

Being ‘effectively silenced’ does not necessarily mean that someone literally cannot speak, or that they have no platform. It means that when they speak, they are misunderstood (often wilfully). The message that should be taken from their words is not the message that media, politicians, and even the general public actually hear.

The media have acted as though that one singular instance of intimidation was the most important issue raised that day. But the point Tame was making is that there is no need to name the person nor agency because this sort of silencing tactic happens all the time to people trying to change the status quo. One must ask, are the media and LNP, even the public, purposefully missing the forest for the trees?

To fail to heed the wisdom of these women, as spokespeople for survivors, is an absolute ethical failing. They are gifting us with their situated knowledge and experience-based insights that would lead to successful reform, as well as the many insights that have been shared with them by other survivors who have sought them as confidantes. Tame literally lists what needs to happen: one, two, three. But it is clear that the press and the Parliament have not yet learnt how to actually listen to the intended overarching messages of these women – and, until they (and we ourselves) do, nothing will change.

We must pay attention and be proactive in destroying the terrorist institution of abuse culture.

Join the conversation

How can societal and institutional change be tackled?

Is the right to die about rights or consequences?

Of all public policy debates, voluntary assisted dying is an ethical debate as much as any other, made clear by the recent impassioned speeches on the floor of the New South Wales parliament and the accompanying public debate.

The various arguments for and against voluntary assisted dying are motivated by a range of different reasons. For some it’s by personal experiences and time spent with dying loved ones. For others it’s by views on human dignity – reasons that are used both for and against. Many arguments are motivated instead by a deep belief in the existence of God, and what this means for how we treat others.

While there may be no “best way” to consider and assess the case for and against voluntary-assisted-dying, it seems to me that a useful approach is to focus on two central ethical issues:

  • The level of rights an individual has over their body
  • Whether legalised voluntary assisted dying makes a society worse-off due to the negative consequences that may ensue, such as increased self-harm in the broader population or individuals being pressured to prematurely end their lives.

The rights case for voluntary assisted dying largely centres on an individual’s self-ownership rights – what they are permitted to do with their bodies. These rights do not rest on any consequential benefits that might arise, such as a more cohesive society or a happier public, but are natural rights, without further need of justification.

If people have self-ownership rights in a strong sense – for example, they can do as they please with their bodies, free from any external government interference – then it seems the proposed NSW voluntary assisted dying bill does not go far enough.

Patients must have a condition that is advanced, progressive and will cause death within six months (or 12 months for a neurodegenerative disease). This timeframe appears unfair because it means patients with higher levels of pain who are further from the relief of death will suffer more, for longer. If anything, a person experiencing a higher level of pain has a greater need for voluntary assisted dying. If we regard incurable psychological suffering as an affliction comparable with physical suffering (a possibility it seems we do take seriously as a society), failing to provide relief for this cohort seems if not unfair, then at least inconsistent.

However, our existing social norms suggest self-ownership rights are not inviolable. We are not allowed to sell our organs, even if to save another person’s life (we can donate them). We are not allowed to sell ourselves into slavery, even if this could raise vital funds our families or children need to lead better lives.

When we impose risks that are great enough, either to ourselves or others, we are restricted from doing things as menial as leaving home after dark, as was the case in parts of south-west Sydney during the COVID-19 lockdowns. Sometimes these restrictions are publicly justified on the basis of being good for the individual (paternalistic reasons), and other times on the basis of being good for society (what economists might call “externality” reasons).

With regard to consequences, from an individual’s perspective, it seems reasonable to suggest that a condition can be so severe, so acute, that life is not worth living. Our existing medical practices align with this view. It is permissible in NSW for doctors to withdraw life-saving treatment at the request of patients and doctors are under no obligation to provide medical treatment when treatment is considered futile. While there is a difference between killing and letting die, this practice suggests it is possible for the benefits of death to outweigh the costs of life.

Therefore, from a consequentialist perspective, it seems to me the primary issue of concern is whether voluntary assisted dying makes society worse. One argument made is that voluntary assisted dying can increase suicides in the general population and pressure vulnerable people to prematurely end their lives. It seems reasonable to accept this is possible and reasonable to accept that we cannot know with full certainty how legalising voluntary assisted dying will impact NSW.

The primary issue of concern is whether voluntary assisted dying makes society worse.

However, these consequential considerations can be informed by looking at the experience of other jurisdictions. Voluntary assisted dying has been legal in the US states of Oregon, Washington and Vermont since 1997, 2009, and 2013 respectively; legal in the Netherlands and Belgium since 2002; and legal in Switzerland since 1918.

Given both sides of the debate argue the evidence is in favour of their own argument, a useful exercise is for the government to commission an independent non-partisan group of experts to analyse the existing data and academic literature, and publicly report back. This would help inform members of NSW Legislative Council when they consider amendments and vote on voluntary-assisted-dying legislation in 2022.

The non-partisan group would analyse how laws have been introduced in other jurisdictions and how these laws have changed over time. The group would ideally look for evidence of whether voluntary assisted dying has increased general population suicides or self-harm, or pressured individuals to prematurely end their lives. They might even consider whether voluntary assisted dying legalisation has numbed or lessened the community spirit, or negatively (or positively) changed the way a community treats and thinks about death.

An independent non-partisan report would provide a greater understanding of the trade-off between individual rights and social consequences. Should it be the case there is near zero risk of negative social consequences, then the case for voluntary assisted dying would seem unassailable. But if there is a risk of increased general population self-harm (for example), the decision then centres on a threshold issue of what level of risk and what level of social impact we are willing to accept.

We might be willing to accept one additional event of self-harm or we might be willing to accept one hundred. We might even be willing to accept that an individual’s rights over their bodies are so strong that patients in agonising pain have a right to voluntary assisted dying, regardless of the social consequences that might result. That is, we might conclude that individual rights trump social consequences.

Should the voluntary assisted dying bill become law, the NSW experience may differ from other jurisdictions due to a range of policy or cultural reasons, which is why it seems an oversight the proposed bill does not require more in the way of future data collection and future reviews (something that could be undertaken by the proposed Voluntary Assisted Dying Board). This amendment would aid future debates (should the bill be passed by the NSW Legislative Council) on whether voluntary assisted dying should be expanded, amended, or even repealed.

It seems to me, the proposed voluntary assisted dying bill permits too little where rights are concerned by setting too strict a timeframe on nearness to death, and permits too much where consequences are concerned by not adequately taking into account the potential for negative social consequences.

The proposed bill and the ethical debate would be improved by considering ways to treat individuals consistently and fairly, by the government commissioning an independent non-partisan group to publicly report back before the NSW Legislative Council votes on the voluntary assisted dying bill, and by amending the proposed bill to require greater data collection and mandate future reviews.

These measures would enhance our understanding of individual rights and social consequences and enable our politicians to vote with their conscience alongside the relevant facts.

Join the conversation

Is the right to die about rights or consequences?

Of what does the machine dream? The Wire and collectivism

This week, a group of more than a dozen Rohingya refugees launched a civil suit against Facebook, alleging that the social media giant was responsible for spreading hate speech.

The victims of an ongoing military crackdown in Myanmar, the refugees claimed not merely that Facebook allowed users to express their anti-Rohingya views, but that Facebook radicalised users – that, in essence, the platform changed beliefs, rather than merely providing a conduit to express them.

The suit is, in many ways, the first of a kind. It targets the manner in which systems – whether they be social media giants, video streaming sites like YouTube, or the myriad of bureaucracies that we all engage with in one way or another almost every day – warp and change beliefs.

But what if the suit underestimates the power of these systems? What if it’s not merely that social and financial enterprises alter beliefs, but that these enterprises have belief sets entirely of their own? More and more, as capitalism continues to ratify itself, we are finding ourselves swept up in communities that operate on the basis of desires that are distinct from the views of any one member of those communities. We are all part of a great, groaning machinery – and it doesn’t want what we want.

Pawns in a Game

There is a key sequence in David Simon’s critically adored television series The Wire that sums up this perspective perfectly. In it, three young men, all of them members of a rickety enterprise of crime, find themselves playing chess. The least experienced man does not understand the game – how, he wants to know, does he get to become the king? He doesn’t, the most experienced man explains. Everyone is who they are.

Still, the younger man wants to know, what about the pawns? Surely when they reach the other side of the board, and get swapped out for queens, they have made it – they have beat the system. No, the experienced man explains. “The pawns get capped quick,” he says, simply.

There is a deep, sad irony to the scene: the three men are all pawns. They have no way of beating the system. They will not even live to become queens. When one of them dies a few episodes later, shot to death by his friend, there is a grim finality to the murder. He did, as expected, get capped quick.

This is the focus of The Wire – the observation that members of any community are expendable when weighed against the desires of that community. The game of chess is bigger than any of the pawns could imagine, a system with its own rules that they are merely contingent parts of. And so it goes with the business of crime.

Not only crime, either. The genius of The Wire is the way that it draws parallels between those who operate outside the law, and those who uphold it. The cops who spend the series cracking down on the drug trade are also pawns, in their way: lowly members of a system that they are utterly unable to change. No matter what side of the law that you fall on, you will find yourself submerged in bureaucracy, The Wire says – in the machinations of a vast system of power relations with a goal to constantly perpetuate itself, at your expense.

These are the systems that Sigmund Freud wrote of in his seminal work, Civilization and Its Discontents. For Freud, there is an essential disconnect between the desires of individuals and the desires of the social communities that they unwillingly become a part of. There are things at foot that are bigger than any of us.

Bureaucracies are not the sum total of the desires and beliefs of the members of those bureaucracies. These systems have a life – a value set – entirely of their own.

Image: HBO

The Game Never Changes

If that is the case, then how does change occur? The Wire offers only dispiriting answers. The show’s idealists – renegade cop Jimmy McNulty, rogue crime boss Omar Little – either find themselves subsumed by the system that lords over them or eliminated. There is a hopelessness to their rebellion. They uselessly throw themselves into the path of a giant piece of machinery, hoping that their mangled bodies slow the inevitable march of progress.

It doesn’t work. Those who thrive are those who give themselves over entirely to the system, who align their values perfectly with the values of their community and embrace their own insignificance. Snoop, the show’s most hideous and intimidating villain, is a happy pawn, one who has never once considered changing the rules of the game that will send her too into an early, dismal grave.

But what if we all stop playing? That is the solution that The Wire never considers. If these systems, whether they be criminal or judicial, are to be changed, then it requires a different kind of collectivism. We are all part of many communities, not just one. If we remember this – if we understand that we have the power and solidarity that comes from being a member of a particular class, a particular race, a particular gender – then we can fight collective power with collective power. The solution isn’t to get the pawn to the other side of the board. It’s to tip the board over.

Join the conversation

Who do our bureaucracies benefit?

Did Australia’s lockdown leave certain parts of the population vulnerable?

The pandemic has increased the duty we have to other members of our communities.

Different groups of people have different interests, but balancing these interests can cause conflict and friction.

Given Australia’s hard lockdown stance, many people could not wait to lift the restrictions and return to their daily routines. However, in relieving people from these restrictions, we also leave vulnerable populations exposed.

Who do we have a more significant duty towards?

There were discussions around school kids and their right to access education, conversations about teen and adult mental health, and calls to vaccinate the elderly. However, a group that was affected by all these considerations and needed further contemplation was ignored – those with disabilities.

While we are interested in protecting all people, if we do not ensure the safety of the most vulnerable in a population, we fail – we blatantly show that we do not value their needs in conjunction with evaluating a safe society.

The Ethics Centre’s Dr. Simon Longstaff stated recently on Q&A that ‘it is unforgivable that we have to have this conversation … where the most vulnerable members of our community have been left exposed. We should not … expect those people with … vulnerabilities to bear the burden of what we would prefer to do.’

While mental health costs of lockdowns are in favour of opening, Dr. Longstaff warned that ‘we as a society are going to have to accept that those who become infected and die will be something we have to wear on our own conscience.’

Phase 1A of Australia’s vaccine rollout, was initiated in February with the intention of targeting essential healthcare workers and those most vulnerable, such as the elderly and those with disabilities. However, in June only 1 in 5 people with a disability had been vaccinated, and less than 50% of support workers had received both doses of a vaccine. Yet, there was a dramatic increase in October to 70% of individuals being vaccinated.

The marked uptake was likely due to lockdown measures being lifted, as many people wanted the vaccine but could not receive it due to lack of accessibility.

In order to receive a vaccination, people had to contact their GP or later on could book one online.

On the face of it, these distribution procedures seem reasonable but there were significant problems that severely limited access. Having to make a GP appointment simply to obtain a vaccination referral was an unnecessary step that made it particularly difficult for those with disabilities, many of whom are dependent upon others to assist them.

Further, despite being a part of Phase 1A, many people with a disability could not receive the vaccine until lockdown had been lifted and support networks were reinstated. There was no follow-up, reassurance, or support to ensure that those who wanted to receive the vaccine could promptly do so. Therefore, as vaccine distribution moved from one phase to the next, it left an increasing number of those with disabilities behind.

Secondly, for similar reasons, internet access is more difficult for many of those with disabilities and the Department of Health website was not particularly user-friendly. It did not include larger, more legible text or have text to speech which would have helped those with limited sight or those who have trouble reading. Additionally, the high demand for vaccination meant that timeslots were severely limited and if they were available, they were usually inconvenient.

This was especially problematic for those with disabilities because it was not always clear which facilities were equipped with accessible features. To obtain informed consent, centres would need to have staff who are able to understand sign-language and provide information leaflets in braille. Much of this burden of providing additional support and care fell on already stretched family members and carers who, because of lockdown, may already have been working from home and home-schooling children.

What should Australia have done?

First and foremost, the relevant authorities should have ensured that almost 90%+ of each phase was vaccinated before moving to the next phase. In doing so, they would have needed to provide adequate support for those in Phase 1A and set up additional measures as required.

  • Vaccine facilities should have been situated close to care facilities.
  • Carers and parents should have been able to book their vaccines with individuals.
  • Vaccine facilities ought to have implemented “safe” times or locations whereby those with disabilities could show up with no appointment.

What is perhaps irreconcilable is that while these requests/services were prepared during the pandemic, they were simply unavailable due to lack of federal organisation. There are many hospitals around Australia that have rehabilitation medical departments, all of which have specialised members and facilities. Despite notifying the government that they have experience and the equipment to convert into vaccination sites for those living with disabilities, they were not used.

The distribution of the vaccine in Australia was not organised in a manner that was empathetic to individuals living with a disability. I agree with the Royal Commission and Dr Longstaff that ending lockdown and opening without first ensuring high vaccination rates in this vulnerable community was unconscionable and unforgivable.

The lockdown was organised in a manner that did not respect the needs of particular populations. It once again highlights the inequity that people with disabilities face and places the responsibility of any harm to these individuals squarely on society. It was our duty to protect one another from harm during the pandemic, and we have failed a significant group within Australia’s population.

Join the conversation

Which members of the population do we have a more significant duty towards?

Vaccination guidelines for businesses

Businesses are having to address complex ethical questions about the extent to which a person’s vaccination status should be a condition of employment.

Here are some guidelines to consider:

1. There is a difference between a mandatory requirement (where there is no choice) and a condition of employment (which people can choose to meet as they think best).

Many jobs impose conditions of employment that relate to a person’s health status (including whether or not they have been vaccinated).

2. Respect and promote the maximum degree of freedom of employees – limited only by what is required to meet one’s obligations to others.

In determining this it’s important to consider:

  • The nature of any duties owed to other people – including employees, customers, and members of the community more generally.
  • The specific context within which people will come into contact with your employees e.g. frequency, proximity, location – and estimate the way these variables shape ‘the risk envelope’.

3. Determine if a legitimate authority (e.g. a government) has made any rules.

This includes Legislation, regulation, public health orders, etc. that determine how the business must act. For example, governments may set license conditions that ‘tie the hands’ of specific employers.

4. Actively seek alternative means by which employees might perform their roles, even if they are not vaccinated.

Note, alternatives must be practical and affordable.

5. Determine who bears the burden (including the cost) of alternative measures.

For example, should employees who choose not to be vaccinated be required to be masked, or to use rapid antigen testing at their expense?

6. Consider how roles might be reassigned amongst the unvaccinated.

With priority given to those with medical exemptions.

7. Treat every person with respect – ensuring that no person is ridiculed or marginalised because of their choice.

But note that respect for one person or group does not entail agreement with their position; nor does it void one’s obligations to others or your right, as an employer, to advance your own interests.

8. Be prepared to adjust your own position in response to changing circumstances.

Including evidence based on the latest medical research relating to vaccine safety and efficacy, etc.


Read more on the difference between compulsory and conditional requirements here.

Join the conversation

How can we navigate the conditions of vaccination in the workplace?

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.

Join the conversation

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.

Join the conversation

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.

Join the conversation

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.

Join the conversation

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.

Join the conversation

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