The erosion of public trust

Christian Porter’s decision to accept an anonymous donation of one million dollars to help cover his personal legal costs has not merely raised questions about his personal judgement.

It has, once again, exposed larger issues about the extent to which some of our government ministers understand the demands of political leadership in a democracy.

To be clear, I do not see anything wrong, in general, with a person accepting financial support to cover the costs of litigation. Nor is there anything problematic about offering such support. There is not even a problem, in general, with such support being anonymous. So, if Mr. Porter were just an ‘ordinary citizen’, there would be little to discuss.

The controversy is solely related to the fact that Mr. Porter is a Member of Parliament and was a cabinet minister in the Federal Government led by Prime Minister Scott Morrison – a position that Porter freely chose to accept, presumably with knowledge of all that it requires. The fact that Mr. Porter resigned from the Ministry allays one source of concern. However, the issues at the heart of this controversy extend well beyond the treasury benches to encompass all serving MPs.

In fact, Mr. Porter’s case raises important issues of principle; namely, whether or not politicians (of all political persuasions) should be allowed, in our democracy, to receive substantial amounts of money by way of anonymous donations. In this, the acid test is not what is convenient (or not) for politicians and their supporters. Rather, the only consideration should be in relation to what supports, or undermines, the quality of our democracy.

Now, it could turn out to be the case that Mr. Porter has not broken any formal rules. Whether or not this is the case will be determined in due course. Yet, to think that this is simply a matter of compliance is, I believe, to miss the point. We are living through a time when the exemplary power of leadership is a potent force for both good and ill. And some of our politicians just don’t seem to understand this!

Ideally, I would prefer to cite examples from across the political spectrum. I am sure that they exist. Unfortunately, the spotlight tends to fall on those in power. So, when a government minister doles out public funds for a private political purpose it has a chilling effect on public trust in those who govern, even if what was done is technically within the rules. Then we have the case of Christian Porter – which, as noted above, seems to offer evidence of either ignorance of, or indifference to, basic standards of good governance.

We might all genuinely sympathise with the desire of a dad to be with his children on Father’s Day. However, when the Prime Minister takes advantage of an opportunity not available to hundreds and thousands of their fellow-citizens, it leaves the impression that there is one rule for the powerful and another for the rest of us.

As noted above, the issue I am concerned about does not concern compliance with the rules. It’s not that such questions are unimportant. It’s just not the focus of this article. Rather, I am worried about the effects of a continuing erosion of trust in our government. Some people might think this to be a trivial matter. Perhaps it is when nothing much is at stake. However, those are not the times in which we are living.

The COVID19 pandemic has been the most significant threat to Australia in the past 50 years. Furthermore, the response to that threat has largely lain in the hands of the community as a whole. Governments can lead, they can put in place policies and procedures, they can supply critical resources like vaccines and safe quarantine facilities. Yet, none of that will be to good effect unless ordinary Australians accept the costs of lockdowns, wear masks, remain socially distant, be vaccinated, etc. This requires the public to look beyond self-interest. The community as a whole has to have a concern for the general welfare of society. Most importantly, we need to be able to trust the judgement and advice of those who govern.

At least in part, this depends on us believing that our political leaders are in this with us; that we are ‘all in the same boat’.

Also, we need to believe that our politicians will act solely in the public interest and that if, for some reason, they do not, then they will be held to account with at least the same degree of rigour that applies to the rest of us.

Leaders should not wait until a time of crisis to demonstrate their integrity. Every decision – including those that do not ‘seem to matter’ – builds (or undermines) the ethical capital upon which politicians must draw at times such as these. That is, the character of political leadership is established in fine detail over time. Mere compliance with the rules is the bare minimum – nothing more. The real ‘weight’ lies in countless acts of discretion not merely in terms of substance but equally in terms of their symbolic significance.

We should all realise that this imposes an extraordinary burden on our politicians. Their public service requires more of them than we demand of ourselves. However sympathetic we might be to their plight, that is the price that must be paid by those who choose to govern. Alas, this is the lesson that a number of our political leaders seem not to have learned.

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Do our political leaders’ actions erode your trust?


Australia's ethical obligations in Afghanistan

After 20 years of waging war in Afghanistan, the United States and its allies (including Australia) have withdrawn from the field – leaving the Taliban back in power.

The temptation is to label this outcome a resounding defeat. But how does one judge in such matters? Perhaps the Taliban of 2021 has learned, over the past 20 years, how to be better governors of Afghanistan – at least better than they were in the period leading up to 2001; and better than the series of governments that have muddled along in the interim. Perhaps the quality of the peace that will now prevail in Afghanistan will be better than that which would have otherwise existed if no war had been fought. If so, then the loss may not be as great as first thought.

Countries like Australia will need to act on their obligation to stay the course and help the Afghan people as best as they can.

Yet, if this possibility is ever to amount to something more than a feeble dream, then those who fought war need to do more than ‘hope for the best’. Rather, countries like Australia will need to act on their obligation to stay the course and help the Afghan people as best as they can.

Some might challenge the idea that Australia is bound by any obligation to the Afghans. After all, it might be said, have we not already invested a small fortune in treasure? Have we not already sent our sons and daughters to shed blood and to die under the Afghan sun?

My answer begins with the simple truth that, for the most part, we found ourselves expending blood and treasure for our own benefit – and not, primarily, for the good of Afghanistan. Much as we might be comforted by the rhetoric of ‘noble causes’ and ‘high ideals’, when it comes to the realpolitik of statecraft, our politicians send our forces into harm’s way in service of what they plainly believe to be the national interest. As has so often been the case, we went to war to support our most important ally, the United States of America. We went to war so that we could sleep more soundly in our beds – by blunting the edge of terrorism. So, our arrival in Afghanistan (and all that followed) was not driven by an overarching desire to improve the lives of Afghans.

Of course, we also aimed to do some good – and indeed we did. Many Afghans have led better lives due to Australia’s investment in aid and development. Indeed, I have first-hand knowledge of the efforts we have gone to in helping to improve, say, the circumstances of women and girls in Afghanistan. The good we did is real. However, let’s not pretend that it was the product of altruism alone.

I have made much of the self-interest of nations because I think it is key to our understanding the ethical obligation that still binds the Australian government – despite our withdrawal.

As we know, thousands of Afghans rallied to our cause. They served as locally engaged staff in our embassy. They worked as interpreters – both in civilian and military settings. They were our partners in aid and development projects. All of these people directly enabled Australia to realise – as far as possible – its strategic objectives. They did so at considerable personal risk – openly assisting a self-declared enemy of the Taliban (and even more extreme groups like ISIS-K). This risk was exacerbated by the work they did – on our behalf – not just in areas of conflict. For example, what would a hardline opponent to women’s empowerment think of those who have worked tirelessly to achieve that outcome? Surely, those who worked to help women now have a target on their back!

It’s not just specific individuals we need to think of. Large numbers of apparently unconnected Afghans have borne the brunt of 20 years of war waged for our benefit. They were the ones maimed and killed – whether as ‘collateral damage’ or as the intended victims of fundamentalists bent on dominating and pacifying through terror.

It was shameful that our response to the growing power of the Taliban was to do ‘too little, too late’.

Given all of this, it was shameful that our response to the growing power of the Taliban was to do ‘too little, too late’. In saying this, I acknowledge that very few people predicted the speed or comprehensive nature of the Taliban victory. However, I suspect that the larger problem was that too few in government truly understood the depth of our obligation to those Afghans who have assisted us. As much as anything else, it is the sense of indifference that has led many in our armed forces to feel that we have betrayed those left behind – and to express a sense of shame on behalf of our nation.

We should have had much to celebrate. Despite the dark shadow cast by the findings of the Brereton Report, there is much to be proud of in terms of Australia’s overall contribution. That legacy is at risk of being sullied by the manner of Australia’s departure and the sense that we will do the minimum that decency requires – and then wash our hands of the whole thing, leaving our faithful collaborators to pay the price of our failure.

I mentioned before that talk of defeat may turn out to be illusory; that there is a chance that 20 years of war has led to a better future than could otherwise have been hoped for. This brings to mind an old Islamic proverb, “Trust in Allah! … but tie the camel’s leg”.

If we are to find honour, then we must not abandon our Afghan colleagues – not even now when the evacuation has been declared ‘complete’. We need to make it easy for those we left behind to secure visas. We need to ease their passage to safety. We need to continue to invest – if at all possible – in programs that improve the plight of ordinary Afghans – even while they live under Taliban rule.

That much we owe them for bearing their share of the burdens arising out of our self-interested invasion of their country.

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What ethical obligation does Australia owe Afghanistan?


Vaccines: compulsory or conditional?

One of the most significant ethical issues to confront the community in the current phase of the COVID-19 pandemic concerns the extent to which people should be required to achieve full vaccination.

The debate mirrors earlier discussions about where to set the balance between public safety and personal liberty. In the wake of events such as the 9/11 terrorist attack or the Bali bombing, successive governments introduced legislation to curb civil liberties that, in some cases, had been fought for centuries ago – with the shedding of much blood in the name of liberty.

However, there was scarcely a whimper of protest from conservatives at that time, or since. Former Prime Minister, Tony Abbott, spoke for many government leaders when, in February of 2015, he said that, “There is no greater responsibility – on me – on the government – than keeping you safe”.

That formula has been invoked time and time again in response to criticism from those who have questioned the erosion of civil liberties. Once again, Tony Abbott outlined the rationale for preferring public safety over personal liberty, noting that one or two people could pose a threat to the community. In the same national security statement quoted above, Mr Abbott when on to say, “But frankly, I’d rather lose a case, than lose a life.”

For the most part, the community has accepted this set of prescriptions. It is against this background that one needs to understand the approach of government to the menace posed by COVID – where lives can be threatened by the actions of just one or two individuals – including those who are free from malicious intent.

As noted above, I cannot think of single conservative commentator who took Mr Abbott (or other leaders) to task for their preference of public safety over personal liberty. Yet, many of these same commentators are lining up to condemn politicians who take an identical stance in response to the proportionately greater risk to life posed by COVID-19. In doing so, some have decided to oppose a range of government measures that they think identify as violating individual liberties – ranging from ‘lockdowns’ to vaccination.

Unhelpfully, the debate has been skewed by the failure to make a clear distinction between different types of restriction.

As far as I know, there has been no serious proposal – from government or the private sector – for ‘compulsory vaccinations’. Yet, this ‘red herring’ is causing widespread debate and a fair measure of concern.

So, how should we think about the issue of vaccinations?

It seems to me that the greatest source of confusion (and concern) lies in the failure to distinguish between three types of requirement: compulsory, optional and conditional.

Compulsory requirements are enforced – and those that contravene are subject to punishment. There are very few compulsory requirements in liberal democracies. Examples in Australia include: the requirement for children to be educated (e.g. attend school); and the requirement that adult citizens attend voting places and receive a ballot paper (whether they cast a valid vote or not is up to them). Most recently, we have had genuinely compulsory ‘lockdowns’. If you fail to abide by the rules, then you are subject to formal punishment by the state.

Optional requirements leave each person to decide whether or not to engage in the specified activity – without consequence. As such, they are generally held to be uncontroversial.

Conditional requirements are far more common. Typically, they are in the form of: ‘if … then’. For example, ‘if you wish to drive a car … then you must be licensed to do so’. Or, ‘if you wish to enter this mine … then you must wear safety equipment’. As will be evident, no person is required to drive a car or enter a mine site. To do so is a matter of choice. In this lies the principal difference between ‘conditional’ and ‘compulsory’ requirements.

I have not really heard anyone make the case for ‘compulsory’ vaccination. Rather, there are arguments being made in favour of vaccination as a ‘conditional requirement’. So, how might such a requirement be justified?

First, it is easy to justify such a requirement in order to protect the health and safety of a community or a workplace. This was the line of argument that Peter Singer attributed to John Stuart Mill, in his recent opinion piece in The Sydney Morning Herald. Second, one can also justify a conditional requirement as a precondition for being able to perform a function. Third, one can set a condition that requires a person not to render themselves either unsafe or unable to perform their role. For example, a mining company might require an employee to wear protective clothing or sunscreen. This is not solely to keep the employee safe. It also ensures that the person remains fit (physically able) to perform their role, free from injury.

The same thinking can also be extended to the idea that an employee should remain fit (physically able) to perform their role free from disease. As noted above, this conditional requirement could be seen as being directed towards the welfare of the employee. Or it could be a requirement for the benefit of the employer.

In either case, no person is compelled to work under such conditions. If they are not prepared to accept the condition, then they may choose not to work for an employer imposing such a requirement. As noted above, this is common and uncontroversial in many, many cases.

A final note: nothing here has any implications for what a person should or should not believe. For example, a person may have a ‘magical belief’ that they are protected from the risk of injury or disease, yet still be required to wear safety equipment. A person may believe that COVID-19 is a ‘hoax’ yet still have to meet the conditional requirement that they be vaccinated.

Governments, companies, etc. should not be in the business of imposing beliefs on others. They can seek to persuade – but nothing more. However, they have every right to set conditions on behaviour and then leave it to people to choose whether or not to meet the conditional requirements that have been set.

Of course, this leaves open one final possibility – that a person may be unable to meet the condition through no fault of their own. For example, some people cannot operate the pedals on a car – yet may still wish to drive. The fact that they cannot operate an unmodified vehicle is not a matter of choice (or an absence of will) – it is a physical impossibility. In such cases, society might try to develop mechanisms (e.g. modified control systems) to offset the limitations. However, this will not always be possible.

Should an employer set vaccination as a condition of employment?

The decision to undertake any kind of medical procedure is a serious one.

Normally, this would be a private matter – especially when it relates to the health of an individual. However, there are multiple precedents for setting conditional requirements of a kind that involve medical procedures, including vaccination. For example, as things stand, one cannot travel to certain countries without vaccination (yellow fever). But to what extent, if any, might the context of employment render a different ethical outcome? For example, should employers apply a ‘test of relevance’ (e.g. different requirements for people working in aged care/disability sectors than, say, for construction workers)?

Some might argue that there is room for conscientious objection – but it has always been a mark of genuine cases, of conscientious objection, that people be prepared to accept the consequences of acting in conformance with their conscience. Also, the duty is to act on a well-informed conscience. That is, one cannot claim the protections or validations of conscience when based in proven error (e.g. in the belief that vaccines do not work, that they contain micro-chips, etc.).

Thus, when it comes to balancing safety vs freedom it should be recognised that both values are of importance. However, good health is an enabler of freedom. Therefore, freedom from the risk of infection (e.g. amongst employees) should be given priority. This would allow for the establishment of ‘conditional requirements’ (such as in the case of a vaccine passport). But these requirements should be structured as the minimum necessary to secure safety. For example, if the job can be done while working from home, then that should be allowed amongst those who choose not to be vaccinated. On the other hand, if the job requires contact with others (if this is strictly necessary), then a refusal to be vaccinated would be equivalent to refusing to take an anti-doping blood test (in elite sports) or to wear safety equipment in a mine.

What questions should employers consider about vaccination?

  1. Does vaccination significantly reduce the risk of transmission to others? If so, does the employer have a duty to limit the risk of infection faced by its employees (as a whole), customers, etc.?
  2. Does COVID present a risk that an infected employee will be unable to perform their duties? If so, is the risk sufficient to justify a conditional requirement that the employee protect themselves from this harm?
  3. What exceptions (if any) can be made for people who are unable to meet the conditional requirement (e.g. medically unfit to be vaccinated)? To what extent can the person’s work practices be managed to take account of this limitation (e.g. special facilities, use of additional PPE, etc.) so as to balance the interests of the individual and the wider group?

Conditional requirements are an everyday occurrence. They range from clothing requirements (e.g. to enter certain places), to the possession of licences, to the need for vaccinations when travelling to certain countries overseas. Some of these requirements are established to reflect cultural preferences, or as indicators of respect for particular institutions or places or as being necessary to realise values like those of ‘safety’, ‘efficiency’, etc.

In the end, when values compete – as in the case of ‘public safety’ vs ‘personal liberty’ the best approach is to seek to make every effort to minimise the damage to one value to the greatest extent possible while realising the other. It’s an approach that I think we failed to heed when it came to our nation’s response to the threat posed by terrorism – sowing the seeds that we seem to be harvesting today.

Perhaps this time round, we can do better.

As a small beginning, I wonder if we can at least drop the reference to so-called ‘compulsory’ vaccinations and instead focus on what might count as a reasonable, conditional requirement.

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Should an employer set vaccination as a condition of employment?


3 Questions, 2 jabs, 1 Millennial

What started out as a trip to get my flu shot turned into a quick, loaded political decision.

Fortunately, by stopping and reflecting, I left politics to the pollies and made my decision based on ethics.

When Prime Minister Scott Morrison announced that anyone under 40 could approach their GP to get the AstraZeneca vaccine, I decided to act. We were not long into Sydney’s second lockdown and already I was feeling the frustration of isolation. I called my GP and was told to book a consultation first before making any appointments for the jab. I decided to make a day of it and booked both my consultation and flu shot as one appointment. Any outing in Covid times is a highlight, am I right?

One week later I sat down in front of my GP. He said, “I know you’re here for your flu shot but given the situation we’re in, I strongly recommend you get the AstraZeneca. What do you want to do?” In the space of 30 seconds I had to decide whether to AZ now, or to Pfizer at some time in the future, date to be determined. The challenge? Putting aside the loaded politics and making an ethical choice.

I am aware I am privileged in being able to make this choice in the first place; I have the means to transport myself to and from the clinic, English is my first language so I can understand the information and make an informed consent. I am fit and healthy and being in a medical clinic, whilst not always comfortable, is not a traumatic experience for me. None the less given the bad rap the AZ vaccine has received, it was a little daunting.

So here are three questions this Millennial asked themself about getting the AZ vaccine now or waiting for Pfizer:

1. Who am I doing this for?

I am fully aware that the Pfizer vaccine is the preferred jab given there are some risks for young people when it comes to taking the AstraZeneca. A few friends have managed to somehow obtain a Pfizer vaccination through connections, either that or some back-alley vaccine deal (letting my imagination run wild). Black market fantasies aside, when it came to my decision making, I chose the non-preferred option as there was plenty of AZ supply to go around. This choice was my contribution to ensuring the small amounts of Pfizer are provided to those who need it most urgently.

Of course, I could wait until there is plenty of supply of Pfizer. But given that medical advice is that the vaccine reduces transmission, the decision to delay can impact the people around me, people who I love the most, such as my partner who is a teacher. I have friends who are immune-suppressed, and family members who are elderly. I feel, the more we all do to suppress transmission in the community, the safer they will be.

2. What does the best outcome look like? In the short term? In the long term?

Recently the government released an advertising campaign to encourage the public to get vaccinated. Most have seen the footage of a young woman, around my age, on a ventilator struggling to breathe and becoming increasingly distressed. There has been a lot of discussion concerning that this advert was aimed at young people, the very people who can’t get hold of the recommended vaccine for this age group. Like many, I find myself repeatedly frustrated about the vaccine roll out.

But there are actions I could do now to play my part in preventing this lockdown from lasting any longer. I have friends in the UK, many of whom have had the AZ vaccine. I want to do everything I can to help get life back to normal. I feel an overwhelming responsibility as a citizen to do what I can to prevent the spread, protect myself and fellow neighbour, and avoid the possibility of passing it on to someone I love. I channelled this frustration into an action that I as an individual can take. My decision to take the AstraZeneca was my way of contributing in some small way to increasing acceptance of a mass vaccination campaign that will improve the lives of the majority in the long term. Whilst it’s reported there are some small amounts of discomfort (fever, body aches and chills for the first 24 hours post vaccine) it’s a short-term pain for a long-term great gain.

3. What are the risks involved?

My anxiety does have its moments and I can catastrophise at the drop of a hat. The human brain likes to predict the future so it can be prepared. In moments where my anxiety flares up, I try and remember it’s just my body trying to protect itself. We tend to focus on the negatives – an easy thing to do during a global pandemic – particularly when combined with media reports of the risks and misinformation across social media.

Negativity bias is rife and it’s easy for us to be more motivated or affected by negative information than positive.

Faced with needing to make a quick decision I relied on the information given to me by my GP in the consultation.

The consultation involves your doctor thoroughly taking you through the potential risks of the AstraZeneca jab. The AZ vaccine has been associated with a rare side effect called thrombosis with thrombocytopenia syndrome (TTS). According to the Australian Government Department of Health website (www.health.gov.au), in every 1,000,000 cases there is a 3.1 chance of TTS for individuals under 50. Given the current situation in Sydney I felt the risks of COVID far outweighed the risks of adverse side effects from the vaccine. Sure, we do not know what the long-term vaccine effects could be, but it was a chance to consider the trade off between facts and knowledge and the assumptions that there might be some long-term effects from the vaccine. For now, I am sticking with my faith and trust in the medical industry. They have been working hard these past 18 months and have been right so far. Plus vaccines are not new, the first recorded use is from the 16th century in China for smallpox.

So what did I choose …

In the end, after weighing up these questions I was stoked to get poked. By the evening I was hit with the prewarned symptoms of fever and body aches but by the time 48 hours had passed, I was fit as a fiddle. I was surprised by how many work colleagues congratulated me saying how brave I was or how proud they were to know a young person playing their part to combat this disease.

One small disappointment.  I didn’t get one of those, “I’ve been vaccinated stickers.” I may be 30 but the six-year-old in me was severely disappointed. Not even a lollipop… so if you choose to get the AZ vaccine… at least bring your own post poke treat.

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What is shaping your decision making around the Covid-19 vaccine?


He said, she said: Investigating the Christian Porter Case

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

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

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

The Problem With Testimony

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

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

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

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

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

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

Judging Credibility

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So here’s the rub.

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

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

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

Didn’t the Police Investigate and Exonerate Porter?

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

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

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

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

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

Preventing Testimonial Injustice

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

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

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

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

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

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

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


Who's to blame for Facebook’s news ban?

News will soon return to Facebook, with the social media giant coming to an agreement with the Australian government. The deal means Facebook won’t be immediately subject to the News Media Bargaining Code, so long as it can strike enough private deals with media companies.

Facebook now has two months to mediate before the government gets involved in arbitration. Most notably, Facebook have held onto their right to strip news from the platform to avoid being forced into a negotiation.

Within a few days, your feed will return to normal, though media companies will soon be getting a better share of the profits. It would be easy to put this whole episode behind us, but there are some things that are worth dwelling on – especially if you don’t work in the media, or at a social platform but are, like most of us, a regular citizen and consumer of news. Because when we look closely at how this whole scenario came about, it’s because we’ve largely been forgotten in the process.  

Announcing Facebook’s sudden ban on Australian news content last week, William Easton, Managing Director of Facebook Australia & New Zealand wrote a blog post outlining the companies’ reasons. Whilst he made a number of arguments (and you should read them for yourself), one of the stronger claims he makes is that Facebook, unlike Google Search, does not show any content that the publishers did not voluntarily put there. He writes: 

“We understand many will ask why the platforms may respond differently. The answer is because our platforms have fundamentally different relationships with news. Google Search is inextricably intertwined with news and publishers do not voluntarily provide their content. On the other hand, publishers willingly choose to post news on Facebook, as it allows them to sell more subscriptions, grow their audiences and increase advertising revenue.”

The crux of the argument is this. Simply by existing online, a news story can be surfaced by Google Search. And when it is surfaced, a whole bunch of Google tools – previews, summaries from Google Home, one-line snippets and headlines  give you a watered-down version of the news article you search for. They give you the bare minimum info in an often-helpful way, but that means you never click the site or read the story, which means no advertising revenue or way of knowing the article was actually read. 

But Facebook is different – at least, according to Facebook. Unless news media upload their stories to Facebook, which they do by choice, users won’t see news content on Facebook. And for this reason, treating Facebook and Google as analogous seems unfair.  

Now, Facebook’s claims aren’t strictly true – until last week, we could see headlines, a preview of the article and an image from a news story posted on Facebook regardless of who posted it there. And that headline, image and snippet are free content for Facebook. That’s more or less the same as what Facebook says Google do: repurposing news content that can be viewed without ever having to leave the platform 

However, these link previews are nowhere near as comprehensive as what Google Search does to serve up their own version of news stories for the company’s own purpose and profit. Most of the news content you see on Facebook is there because it was uploaded there by media companies – who often design video or visual content explicitly to be uploaded to Facebook and to reach their audience.  

However, on a deeper level, there seem to be more similarities between Google and Facebook than the latter wants to admit, because the size and audience base Facebook possesses makes it more-or-less essential for media organisations to have a presence there. In a sense, the decision to have a strategy on Facebook is ‘voluntary’, but it’s voluntary in the same way that it’s voluntary for people to own an attention-guzzling, data sucking smartphone. We might not like living with it, but we can’t afford to live without it. Like inviting your boss to your wedding, it’s voluntary, but only because the other options are worse.  

Facebook would likely claim innocence of this. Can they really be blamed for having such an engaging, effective platform? If news publishers feel obligated to use Facebook or fall behind their competitors that’s not something Facebook should feel bad about or be punished for. If, as Facebook argue, publishers use them because they get huge value from doing so, it does seem genuinely voluntary – desirable, even.  

Even if this is true, there are two complications here. First, if news media are seriously reliant on Facebook, it’s because Facebook deliberately cultivated that. For example, five years ago Facebook was a leading voice behind the ‘pivot to video’, where publishers started to invest heavily in developing video content. Many news outlets drastically reduced writing staff and investment in the written word, instead focussing on visual content.  

Three years later, we learned that Facebook had totally overstated the value of video – the pivot to video, which served Facebook’s interestswas based on a self-serving deception. This isn’t the stuff of voluntary, consensual relationships.  

Let’s give Facebook a little benefit of the doubt though. Let’s say they didn’t deliberately cultivate the media’s reliance on their platform. Still, it doesn’t follow obviously from this that they have no responsibility to the media for that reliance. Responsibility doesn’t always come with a sign-up sheet, as technology companies should know all too well.  

French theorist Paul Virilio wrote that “When you invent the ship, you also invent the shipwreck; when you invent the plane you also invent the plane crash; and when you invent electricity, you invent electrocution.” Whilst Virilio had in mind technology’s dualistic nature, modern work in the ethics of technology invites us to interpret this another way.

If inventing a ship also invents shipwrecks, it might be up to you to find ways to stop people from drowning.

Technology companies – Facebook included – have wrung many a hand talking about the ‘unintended consequences’ of their design and accepting responsibility for them. In fact, speaking before a US Congress Committee, Mark Zuckerberg himself conceded as much, saying:  

“It’s clear now that we didn’t do enough to prevent these tools from being used for harm, as well. And that goes for fake news, for foreign interference in elections, and hate speech, as well as developers and data privacy. We didn’t take a broad enough view of our responsibility, and that was a big mistake. And it was my mistake. And I’m sorry. I started Facebook, I run it, and I’m responsible for what happens here. 

It seems unclear why Facebook recognised their responsibility in one case, but seem to be denying it in another. Perhaps the news media are not reliant – or used by – Facebook in the same way as they are Google, but it’s not clear this goes far enough to free Facebook of responsibility. 

At the same time, we should not go too far the other way, denying the news media any role in the current situation. The emergence of Facebook as a lucrative platform seems to have led the media to a Faustian pact – selling their soul for clicks, profit and longevity. In 2021 it seems tired to talk about how the media’s approach to news – demanding virality, speed, shareability – are a direct result of their reliance on platforms like Facebook.  

The fourth estate – whose work relies on them serving the public interest – adopted a technological platform and in so doing, adopted its values as their own: values that served their own interests and those of Facebook rather than ours. For the media to now lament Facebook’s decision as anti-democratic denies the media’s own blameworthiness for what we’re witnessing.  

But the big reveal is this: we can sketch out all the reasons why Facebook or the media might have the more reasonable claim here, or why they share responsibility for what went down, but in doing so, we miss the point. This shouldn’t be thought of as a beef between two industries, each of whom has good reasons to defend their patch. 

What needs to be defended is us: the community whose functioning and flourishing depends on these groups figuring themselves out.

Facebook, like the other tech giants, have an extraordinary level of power and influence. So too do the media. Typically, we don’t to allow institutions to hold that kind of power without expecting something in return: a contribution to the common good. This understanding – that powerful institutions hold their power with the permission of a community they deliver value to – is known as a social license

Unfortunately, Facebook have managed to accrue their power without needing a social license. All power, no permission. 

This is in contrast to the news media, whose powers aren’t just determined by their users and market share, but by the special role we afford them in our democracy, the trust and status we afford their work isn’t a freebie: it needs to be earned. And the way it’s earned is by using that power in the interests of the community – ensuring we’re well-informed and able to make the decisions citizens need to make. 

The media – now in a position to bargain with Facebook  have a choice to make. They can choose to negotiate in ways that make the most business sense for them, or they can choose to think about what arrangements will best serve the democracy that they, as the ‘fourth estate’, are meant to defend. However, at the very least they know that the latter is expected of them – even if the track record of many news publishers gives us reason to doubt. 

Unfortunately, they’re negotiating with a company whose only logic is that of a private company. Facebook have enormous power, but unlikthe media, they don’t have analogous mechanisms – formal or informal – to ensure they serve the community. And it’s not clear they need it to survive. Their product is ubiquitous, potentially addictive and – at least on the surface – free. They don’t need to be trusted because what they’re selling is so desirable 

This generates an ethical asymmetry. Facebook seem to have a different set of rules to the media. Imagine, for a moment, if the media chose to stop reporting for a fortnight to protest a new law. The rightful outrage we would feel as a community would be palpable. It would be nearly unforgivable. And yet we do not hold Facebook to the same standards. And yet, perhaps at this point, they’ve made themselves almost as influential.  

There’s a lot that needs to happen to steady the ship – and one of the most frustrating things about it is that as individuals, there isn’t a lot we can do. But what we can do is use the actual license we have with Facebook in place of a social license.  

If we don’t like the way a news organisation conducts themselves, we cancel our subscriptions; we change the channel. If you want to help hold technology companies to account, you need to let your account to the talking. Denying your data is the best weapon you’ve got. It might be time to think about using it – and if not, under what circumstances you might 

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

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Does Facebook have a different set of rules to the media?


Tim Soutphommasane on free speech, nationalism and civil society

We believe conversations matter. So when we had the opportunity to chat with Tim Soutphommasane we leapt at the chance to explore his ideas of a civil society. Tim is an academic, political theorist and human rights activist. A former public servant, he was Australia’s Race Discrimination Commissioner at the Australian Human Rights Commission from 2013 – 2018 and has been a guest speaker at the Festival of Dangerous Ideas. Now a professor at Sydney University, he shared with The Ethics Centre his thoughts on the role of the media, free speech, racism and national values.

What role should the media play in supporting a civil society?

The media is one place where our common life as a society comes into being. It helps project to us our common identity and traditions. But ideally media should permit multiple voices, rather than amplify only the voices of the powerful. When it is dominated by certain interests, it can destroy rather than empower civil society. 

How should a civil society reckon with the historical injustices it benefits from today?

A mature society should be able to make sense of history, without resorting to distortion. Yet all societies are built on myths and traditions, so it’s not easy to achieve a reckoning with historical injustice. But, ultimately, a mature society should be able to take pride in its achievements and be critical of its failings – all while understanding it may be the beneficiary of past misdeeds, and that it may need to make amends in some way. 

Should a civil society protect some level of intolerance or bigotry?  

It’s important that society has the freedom to debate ideas, and to challenge received wisdom. But no freedom is ever absolute. We should be able to hold bigotry and intolerance to account when it does harm, including when it harms the ability of fellow citizens to exercise their individual freedoms. 

What do you think we can do to prevent society from becoming a ‘tyranny of the majority’? 

We need to ensure that we have more diverse voices represented in our institutions – whether it’s politics, government, business or media. 

What is the right balance between free speech and censorship in a civil society?

Rights will always need to be balanced. We should be careful, though, to distinguish between censorship and holding others to account for harm. Too often, when people call out harmful speech, it can quickly be labelled censorship. In a society that values freedom, we naturally have an instinctive aversion to censorship. 

How can a society support more constructive disagreement?   

Through practice. We get better at everything through practice. Today, though, we seem to have less space or time to have constructive or civil disagreements. 

What is one value you consider to be an ‘Australian value’?

Equality, or egalitarianism. As with any value, it’s contested. But it continues to resonate with many Australians.  

Do you believe there’s a ‘grand narrative’ that Australians share?

I think a national identity and culture helps to provide meaning to civic values. What democracy means in Australia, for instance, will be different to what it means in Germany or the United States. There are nuances that bear the imprint of history. At the same time, a national identity and culture will never be frozen in time and will itself be the subject of contest. 

And finally, what’s the one thing you’d encourage everyone to commit to in 2021?

Talk to strangers more. 

 

To read more from Tim on civil society, check out his latest article here.

Tim Soutphommasane is a political theorist and Professor in the School of Social and Political Sciences, The University of Sydney, where he is also Director, Culture Strategy. From 2013 to 2018 he was Race Discrimination Commissioner at the Australian Human Rights Commission. He is the author of five books, including The Virtuous Citizen (2012) and most recently, On Hate (2019). 

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

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What elements of a civil society are important to you?


No justice, no peace in healing Trump's America

What fate should be reserved for Donald Trump following his impeachment by the US House of Representatives for his role in inciting insurrection?

Trump’s rusted-on supporters believe him to be without blame and will continue to lionise him as a paragon of virtue. Trump’s equally rusted-on opponents see only fault and wish him to be ground under the heel of history.

However, there is a large body of people who approach the question with an open mind – only to remain genuinely confused about what should come next.

On the one hand, there is an abiding fear that punishing Trump will fan the flames that animate his angry supporters elevating Trump’s status to that of ‘martyr-to-his-cause’. Rather than bind wounds and allow the process of healing to begin, the divisions that rend American society will only be deepened.

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On the other hand, people believe that Trump deserves to be punished for violating his Oath of Office. They too want the wounds to be bound – but doubt that there can be healing without justice. Only then will people of goodwill be able to come together and, perhaps, find common ground.

There is merit in both positions. So, how might we decide where the balance of judgement should lie?

To begin, I think it unrealistic to hope for the emergence of a new set of harmonious relationships between the now three warring political tribes, the Republicans, Democrats and Trumpians. The disagreements between these three groups are visceral and persistent.

Rather than hope for harmony, the US polity should insist on peace.

Indeed, it is the value of ‘peace’ that has been most significantly undermined in the weeks since the Presidential election result was called into question by Donald Trump and his supporters. Rather than anticipate a ‘peaceful transition of power’ – which is the hallmark of democracy – the United States has been confronted by the reality of violent insurrection.

As it happens, I think that President Trump’s recent conduct needs to be evaluated against an index of peace – not just in general terms but specifically in light of what occurred on January 6th when a mob of his supporters, acting in the President’s name, broke into and occupied the US Capitol buildings – spilling blood and bringing death inside its hallowed chambers.

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There is a particular type of peace that can be traced back to the Anglo-Saxon legal codes that provide the foundation for many of the laws we take for granted today. The King’s Peace originally applied to the monarch’s household – not just the physical location but also the ruler, their family, friends and retainers. It was a serious crime to disturb the ‘King’s Peace’. Over time, the scope of the King’s Peace was extended to cover certain times of the year and a wider set of locations (e.g. all highways were considered to be subject to fall under the King’s jurisdiction). Following the Norman Conquest, there was a steady expansion of the monarch’s remit until it covered all times and places – standing as a general guarantee of the good order and safety of the realm.

The relevance of all of this to Donald Trump lies in the ethical (and not just legal) effect of the King’s Peace. Prior to its extension, whatever ‘justice’ existed was based on the power of local magnates. In many (if not most places) disputes were settled on the principle of ‘might was right’.

The coming of the King’s Peace meant that only the ruler (and their agents) had the right to settle disputes, impose penalties, etc. The older baronial courts were closed down – leaving the monarch as the fountainhead of all secular justice. In a nutshell, individuals and groups could no longer take the law into their own hands – no matter how powerful they might be.

These ideas should immediately be familiar to us – especially if we live in nations (like the US and Australia) that received and have built upon the English Common Law. It is this idea that underpins what it means to speak of the Rule of Law – and everything, from the framing of the United States Constitution to the decisions of the US Supreme Court depend on our common acceptance that we may not secure our ends, no matter how just we think our cause, through the private application of force.

As should by now be obvious, those who want to forgive Donald Trump for the sake of peace are confronted by what I think is an insurmountable paradox. Trump’s actions fomented insurrection of the kind that fundamentally broke the peace – indeed makes it impossible to sustain. The insurrectionists took the law into their own hands and declared that ‘might is right’ … and they did so with the encouragement of Donald Trump and those who stood by him and whipped up the crowd in the days leading up to and on that fateful day when the Capitol was stormed.

There literally can be no peace – and therefore no healing – unless the instigators of this insurrection are held to account.

Finally, this is not to say that Donald Trump must suffer his punishment. There is no need for retribution or a restoration, through suffering, of a notional balance between ‘right’ and ‘wrong’. It may be enough to declare Donald Trump guilty of the ‘high crime and misdemeanour’ for which he was impeached. And if he remains without either shame or remorse, then it may also be necessary to protect the Republic from him ever again holding elected office – not to harm him but, instead, to protect the body politic.

Given all of this, I think that healing is possible … but only if built on a foundation of peace based on justice without retribution.

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Is healing possible without justice?


liberalism image: Girl hanging outside window

Ethics Explainer: Liberalism

Liberalism image: Girl hanging outside car window

Liberalism is founded on the belief that individual freedom should be the basis of a just society.

Who should decide how you live your life: where you reside; what career you choose; whom you can marry; and which gods you worship? Should it be your parents? Or your religious or community leaders? Should it be determined by the circumstances of your birth? Or perhaps by your government? Or should you ultimately be the one to decide these things for yourself?

If you answered the latter, then you’re endorsing the values of liberalism, at least in the broadest sense. Liberalism is, at its heart, the belief that each individual person has moral priority over their community or society when it comes to determining the course of their life.

This primacy of individual freedom and self-determination might seem self-evident to people living in modern liberal democracies, but it is actually a relatively recent innovation.

The Birth of Liberalism

In most societies throughout history and prehistory, one’s beliefs, values and social role were imposed on them by their community. Indeed, in many societies since agricultural times, people were considered to be the property of their parents or their rulers, with next to no-one having genuine freedom or the power of self-determination.

Brave (or foolhardy) was the medieval serf who took it upon themselves to defy their local church to practice their own religion, or defy their family tradition to seek out their dream job, or defy their clan to marry whomever their heart desired.

The seeds of modern liberalism were planted in England in the 13th century with the signing of the Magna Carta, which weakened the unilateral power of the King over his minions. This started a process that eventually enshrined a number of individual rights in English law, such as a right to trial by jury and equality before the law.

Soon even rulers – whether monarch or government – came to receive their legitimacy not from divine authority, tradition or fiat but from the will of the people. If the rulers didn’t operate in the interests of the people, the people had the right to strip that legitimacy from them. This made democracy a natural fit for nations with liberal sensibilities.

The other motivating force for liberalism was the horrifically destructive religious wars that wracked Europe after the Reformation, culminating in the Peace of Westphalia in 1648. Given the millions of lives lost due to religious and ideological differences, many people came to see that tolerance of different beliefs and religious practices might be a better alternative to imposing one’s beliefs on others by force.

 

Modern Liberalism

Liberalism was fleshed out as a comprehensive political philosophy by thinkers such as Thomas Hobbes, Jean-Jacques Rousseau, John Locke and John Stuart Mill, and more recently by John Rawls. While they differed in their emphases and recommendations, all liberal thinkers were committed to the core idea that individuals were – and ought to be – fundamentally free to live as they choose.

Philosopher John Locke argued that liberalism stemmed from our very nature, arguing that all people are essentially in “a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.”

Most liberal thinkers argued that individual freedom should only be limited in very special circumstances.

One of those limitations was not impinging upon the freedom of others to live according to their own beliefs and values, hence the importance of tolerance and preventing harm against others. As they say, your freedom to swing your arm ends where another person’s nose begins.

One common theme of liberalism is the importance of free speech. John Stuart Mill, for example, argued that each individual ought to be able to seek the truth for themselves rather than being obliged to accept the views imposed on them by authorities or tradition.

And in order to seek truth, they need to be able to explore, express and interrogate all beliefs and arguments. And the only way to do that was to allow wide-ranging free speech. “There ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered,” he wrote.

This freedom of speech should be limited only in very particular circumstances, such as when that speech is likely to cause direct harm to others. So shouting “fire” in a packed theatre when no such fire exists is an abuse of free speech.

This “harm principle” is still a topic of considerable debate amongst liberals and their opponents, especially around what ought to be considered sufficient harm to justify suppressing speech.

Other liberal thinkers emphasised the fact that not every person was equally able to exercise their freedom through no fault of their own. Poverty, sexism, racial discrimination and other systemic barriers mean that freedom and power are unequally distributed.

This led to what is often called “social justice” liberalism, which seeks to remove those social barriers and enable all people to exercise their freedom to the fullest extent. Some focused on economic redistribution, such as the liberal socialists, while others focused on social barriers, like feminists and anti-discrimination campaigners.

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Who should decide how you live your life?


Berejiklian Conflict

The next phase in the political life of NSW Premier, Gladys Berejiklian, depends on answers to three questions.

First, was her former relationship with Daryl Maguire not just ‘close’ but, in fact, an “intimate personal relationship”? Second, did the Premier make or participate in any decisions that could reasonably be expected to confer a private benefit on Mr Maguire? Finally, if the answer is ‘yes’ to each of these questions, then did Ms Berejiklian declare her interest in the Ministerial Register of Interests and seek the permission of Cabinet to continue to act? 

Nothing else matters – not the Premier’s choice of friends, not her judgement … only the answer to those three questions. 

The reason for this can be found in the NSW Ministerial Code of Conduct (the Ministerial Code) which has the force of Law. As might be expected, the Ministerial Code imposes obligations that are in addition to and are more onerous than, those applying to Members of Parliament. 

The Preamble to the Ministerial Code of Conduct says, amongst other things, that, “In particular, Ministers have a responsibility to avoid or otherwise manage appropriately conflicts of interest to ensure the maintenance of both the actuality and appearance of Ministerial integrity.” With that end in mind, the Code not only takes account of the personal interests of individual Ministers – but also those of members of their families. It is here that the precise nature of the Premier’s relationship with Mr Maguire risks becoming a matter of public, rather than personal, interest. This is because the Ministerial Code of Conduct defines a “family member”, in relation to a Minister, as including, “any other person with whom the Minister is in an intimate personal relationship”. 

‘Intimate’ is not a word used in the ICAC hearing to describe the Premier’s relationship with Mr Maguire.

Instead, it was agreed that theirs had been a “close personal relationship” – the precise nature of which was never explained. However, the evidence suggested that the words ‘close’ and ‘intimate’ may have been synonymous. If so, then Mr Maguire will have fallen within the definition of ‘family member’ during the period of his relationship with the Premier. 

However, this (in itself) is neither here nor there. The nature of Ms Berejiklian’s relationship with Mr Maguire was (and should have remained) aentirely private matter up until the point where the Premier became involved in any Ministerial decision that “could reasonably be expected to confer a private benefit” on Mr Maguire. Only then did the public interest become engaged. 

So, did any such decisions come before the Premier (acting alone or in Cabinet) during the period of her relationship with Mr Maguire? And if so, did she declare her interest as she is required to do under the Ministerial Code? The matter would then have been in the hands of her Cabinet colleagues as the final provision of the Code states that, “a ruling in respect of the Premier may be given if approved by the Cabinet”. 

The Premier obviously knew something of Mr Maguire’s hopes and plans – even if she thought them to be fanciful. She knew of his financial exposure and the material impact that NSW Government decisions might have on his personal wealth. We also know that, for a time, Mr Maguire was at the centre of the Premier’s private affections. The issue is not that the Premier would have acted against the public interest for the benefit of Mr Maguire. I sincerely doubt that she would ever do so. It is most importantly a question of what was done to ensure the maintenance of both the actuality and appearance of Ministerial integrity. 

The Premier had a formal obligation to declare her relationship with Mr. Maguire if, a) it was intimate, b) she was involved in deciding any matter that could reasonably be expected to confer a private benefit on him. It was then up to her Cabinet colleagues to rule on how she should proceed from there. Beyond settling these questions, the public has no legitimate interest in the private life of Gladys Berejiklian – except, perhaps, to extend to her our sympathy if she has been drawn inadvertently into a web of grief spun by a former friend. 

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Did the Premier loose her moral compass?