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.


Ethics Explainer: Autonomy

Autonomy is the capacity to form beliefs and desires that are authentic and in our best interests, and then act on them.

What is it that makes a person autonomous? Intuitively, it feels like a person with a gun held to their head is likely to have less autonomy than a person enjoying a meandering walk, peacefully making a choice between the coastal track or the inland trail. But what exactly are the conditions which determine someone’s autonomy?

Is autonomy just a measure of how free a person is to make choices? How might a person’s upbringing influence their autonomy, and their subsequent capacity to act freely? Exploring the concept of autonomy can help us better understand the decisions people make, especially those we might disagree with.

The definition debate

Autonomy, broadly speaking, refers to a person’s capacity to adequately self-govern their beliefs and actions. All people are in some way influenced by powers outside of themselves, through laws, their upbringing, and other influences. Philosophers aim to distinguish the degree to which various conditions impact our understanding of someone’s autonomy.

There remain many competing theories of autonomy.

These debates are relevant to a whole host of important social concerns that hinge on someone’s independent decision-making capability. This often results in people using autonomy as a means of justifying or rebuking particular behaviours. For example, “Her boss made her do it, so I don’t blame her” and “She is capable of leaving her boyfriend, so it’s her decision to keep suffering the abuse” are both statements that indirectly assess the autonomy of the subject in question.

In the first case, an employee is deemed to lack the autonomy to do otherwise and is therefore taken to not be blameworthy. In the latter case, the opposite conclusion is reached. In both, an assessment of the subject’s relative autonomy determines how their actions are evaluated by an onlooker.

Autonomy often appears to be synonymous with freedom, but the two concepts come apart in important ways.

Autonomy and freedom

There are numerous accounts of both concepts, so in some cases there is overlap, but for the most part autonomy and freedom can be distinguished.

Freedom tends to broader and more overt. It usually speaks to constraints on our ability to act on our desires. This is sometimes also referred to as negative freedom. Autonomy speaks to the independence and authenticity of the desires themselves, which directly inform the acts that we choose to take. This is has lots in common with positive freedom.

For example, we can imagine a person who has the freedom to vote for any party in an election, but was raised and surrounded solely by passionate social conservatives. As a member of a liberal democracy, they have the freedom to vote differently from the rest of their family and friends, but they have never felt comfortable researching other political viewpoints, and greatly fear social rejection.

If autonomy is the capacity a person has to self-govern their beliefs and decisions, this voter’s capacity to self-govern would be considered limited or undermined (to some degree) by social, cultural and psychological factors.

Relational theories of autonomy focus on the ways we relate to others and how they can affect our self-conceptions and ability to deliberate and reason independently.

Relational theories of autonomy were originally proposed by feminist philosophers, aiming to provide a less individualistic way of thinking about autonomy. In the above case, the voter is taken to lack autonomy due to their limited exposure to differing perspectives and fear of ostracism. In other words, the way they relate to people around them has limited their capacity to reflect on their own beliefs, values and principles.

One relational approach to autonomy focuses on this capacity for internal reflection. This approach is part of what is known as the ‘procedural theory of relational autonomy’. If the woman in the abusive relationship is capable of critical reflection, she is thought to be autonomous regardless of her decision.

However, competing theories of autonomy argue that this capacity isn’t enough. These theories say that there are a range of external factors that can shape, warp and limit our decision-making abilities, and failing to take these into account is failing to fully grasp autonomy. These factors can include things like upbringing, indoctrination, lack of diverse experiences, poor mental health, addiction, etc., which all affect the independence of our desires in various ways.

Critics of this view might argue that a conception of autonomy is that is broad makes it difficult to determine whether a person is blameworthy or culpable for their actions, as no individual remains untouched by social and cultural influences. Given this, some philosophers reject the idea that we need to determine the particular conditions which render a person’s actions truly ‘their own’.

Maybe autonomy is best thought of as merely one important part of a larger picture. Establishing a more comprehensively equitable society could lessen the pressure on debates around what is required for autonomous action. Doing so might allow for a broadening of the debate, focusing instead on whether particular choices are compatible with the maintenance of desirable societies, rather than tirelessly examining whether or not the choices a person makes are wholly their own.


Big Thinker: Francesca Minerva

Francesca Minerva is a contemporary bioethicist whose work largely includes medical ethics, technological ethics, discrimination and academic freedom. 

A research Fellow at the University of Milan and the co-founder and co-editor of the Journal of Controversial Ideas, Francesca Minerva has published extensively within the field of applied ethics on topics such as cryonics, academic freedom, conscientious objection, and lookism. But she is best (if somewhat reluctantly) known for her work on the topic of abortion. 

Controversy over ‘After-birth Abortion’

In 2012, Minerva and Alberto Giubilini wrote a paper entitled ‘After-birth Abortion: why should the baby live?’ The paper discussed the moral status of foetuses and newborn babies and argued that after-birth abortion (more commonly known as infanticide) should be permissible in all situations where abortion is permissible.  

In the parts of the world where it is legal, abortion may be requested for a number of reasons, some having to do with the mother’s well-being (e.g., if the pregnancy poses a risk to her health, or causes emotional or financial stress), others having to do with the foetus itself (e.g., if the foetus is identified as having a chromosomal or developmental abnormality). 

Minerva and Giubilini argue that if it’s permissible to abort a foetus for one of these reasons, then it should also be permissible to “abort” (i.e., euthanise) a newborn for one of these reasons.  

This is because they argue that foetuses and newborns have the same moral status: Neither foetuses nor newborns are “persons” capable of attributing (even) basic value to their life such that being deprived of this life would cause them harm.  

This is not an entirely original argument. Minerva and Giubilini were mainly elaborating on points made decades ago by Peter Singer, Michael Tooley and Jeff McMahan. And yet, ‘After-birth Abortion’ drew the attention of newspapers, blogs and social media users all over the world and Minerva and Giubilini quickly found themselves at the centre of a media storm.  

In the months following the publication, they received hundreds of angry emails from the public, including a number of death threats. 

The controversy also impacted their careers: Giubilini had a job offer rescinded and Minerva was not offered a permanent job in a philosophy department because members of the department “were strongly opposed to the views expressed in the paper”. Also, since most of the threatening emails were sent from the USA, they were advised not to travel to the USA for at least a year, meaning that they could not attend or speak at academic conferences being held there during that period.  

So why did ‘After-birth Abortion’ attract so much attention compared to older publications on the same topic? While the subject matter is undoubtedly controversial, Minerva believes the circulation of the paper had more to do with the internet than with the paper itself.  

Academic Freedom and the Journal of Controversial Ideas

“The Web has changed the way ideas circulate.” Ideas spread more quickly and reach a much wider audience than they used to. There is also no way to ensure that these ideas are reported correctly, particularly when they are picked up by blogs or discussed on social media. As a result, ideas may be distorted or sensationalised, and the original intent or reasoning behind the idea may be lost. 

Minerva is particularly concerned about the impact that this may have on research, believing that fear of a media frenzy may discourage some academics from working on topics that could be seen as controversial. She believes that, in this way, the internet and mass media may pose a threat to academic freedom. 

“Research is, among many other things, about challenging common sense, testing the soundness of ideas that are widely accepted as part of received wisdom, or because they are held by the majority of people, or by people in power. The proper task of an academic is to strive to be free and unbiased, and we must eliminate pressures that impede this.” 

In an effort to eliminate some of this pressure, Minerva co-founded the Journal of Controversial Ideas, alongside Peter Singer and Jeff McMahan. As the name suggests, the journal encourages submissions on controversial topics, but allows authors to publish under a pseudonym should they wish to.  

The hope is that by allowing authors to publish under a false name, academics will be empowered to explore all kinds of ideas without fearing for their well-being or their career. But ultimately, as Minerva says, “society will benefit from the lively debate and freedom in academia, which is one of the main incubators of discoveries, innovations and interesting research.” 


COP26: The choice of our lives

There is such a thing as truth. It might be difficult to discern.

Aspects of the truth might vary depending on one’s perspective. However, there are some things that can be known with a certainty sufficient to guide practical action. One of those truths is that life is fragile. The more complex its form, the greater its vulnerability. In the web of life, the severing of one strand can lead the whole to unravel. Cataclysmic failure is not inevitable. It’s just possible – and that is worth knowing. Those who gamble with life take a mighty risk.

In ethics – facts matter. They really matter. Too often, they are ignored by those who think that good intentions are enough. By themselves, good intentions are not enough.

These and other matters are worth bearing in mind as a selection of the world’s leaders gather in Glasgow for COP26. The overwhelming consensus of the world’s leading climate scientists is that life-as-we-know-it is imperiled by the cumulative effects of greenhouse gases. We, humans, are the major source of those emissions. We are the most powerful force on this planet. Our choices shape and make the world what it is.

Ethics is about how these choices are made. It identifies and examines the drivers of choice and ultimately helps us to discern what is good or bad, right or wrong, in the choices we make. At its most fundamental level, ethics underpins the world we make.

So, in every respect, what happens in Glasgow is a matter of ethics.

It is also a matter of politics – and this is where the divorce between ‘ethics’ and ‘politics’ is a cause for concern. The division was never intended to be as great as it has become. For Aristotle, ‘ethics’ and ‘politics’ were intended to be two sides of the same coin. Ethics was concerned with questions about the good life for an individual. Politics was also concerned about questions to do with the good life – but as applied to the community as a whole.

In the lead up to COP26 in Glasgow, we have witnessed a very partial kind of politics that has no apparent concern for the national interest. Instead, the debate about climate change has been recast as a contest between country and city.

In prosecuting their case, the National Party has sought to remain part of the national government while simultaneously trashing the most basic obligation of governments: that they govern for the sake of all.

I should make it clear that when it comes to climate policy, the Ethics Centre has been one of the earliest and most steadfast advocates for a just and orderly transition to a more sustainable future – for everyone affected, not just those living under the National Party’s wing.

The attempt to weaken Australia’s position in Glasgow hinges on a couple of arguments. First, the claim is made that anything Australia does to reduce its contribution to global warming will be ‘futile’ – as our national impact is tiny in comparison to major polluters such as China and India. Second, it is argued that the cost to the economy is just too great to bear – especially for those working in ‘climate exposed’ industries. The National Party then adds to this critique by stating that people living in the cities are asking their country cousins to carry a disproportionate share of the burden.

History reveals what is wrong with such arguments. For example, consider the decision, by a Labor Government, unilaterally to slash tariffs and embark upon an ambitious program to promote free trade. The decision to do so was grounded in a commitment to the national interest and the reasonable belief that, in the long term, the benefits would outweigh the costs – and be shared by all. Back then (as now), Australia represented only around 3% of global trade. In that sense, slashing Australian tariffs could have been presented as a ‘futile gesture’. After all, why cut tariffs in advance of the world’s major economies? And that argument was made by those who opposed trade liberalisation at the time – the Coalition parties.

So, who are the major beneficiaries of free trade? It is the people whom the National Party claims to represent; those working in agriculture, mining and minerals. Who paid the price? Hundreds of thousands of people who lost their jobs in manufacturing – mostly in industries like textiles, clothing, footwear, automotive, etc. And where did most of these people live? In metropolitan areas. So it has been ever since. Australia’s free trade deals inevitably aim to maximise the incomes of people living in rural and regional Australia while leaving the price to be paid by people living in the cities.

Have we heard anyone from the National Party offering sympathy for those who have paid such a high price for regional prosperity? Not a word. Indeed, not a word from anyone. Why the silence? Well, you could put it down to political indifference. Or, it could be that there is now a broad consensus that despite the pain of transition (which typically has been disorderly and unjust), the national interest has been served.

Which brings us back to Glasgow.

Nearly everyone – other than the Federal Government – seems to agree that, for Australia, Glasgow presents a golden opportunity. The adoption of strong, binding targets could enable Australia to become one of the most prosperous nations the world has ever known. We have access to unlimited renewable energy, vast natural resources, a stable socio-economic environment, educated people and so on. We have everything needed to prosper. Indeed, just as it was in Australia’s national interest unilaterally to cut tariffs and embrace free trade, so it is in our national interest to embrace ambitious climate targets – not just for 2050 but by 2030. The stronger the drivers, the better the longer-term outcome.

Yet, even as I write these words, I wonder if this is to miss the point?

As noted above, Aristotle thought ‘ethics’ and ‘politics’ should concern themselves with questions about the ‘good life’. But for whom? For people in the bush? For Australians? For humanity? Or is our duty to ‘life’ itself? Is not the truth about global warming’s threat to life on this planet the ultimate ethical foundation upon which to build strong commitments in Glasgow?

When it comes to life on this planet, there is no ‘town’ and ‘country’, no ‘Coalition and ‘Labor’, no ‘Us’ and ‘Them’. We are all in this together.

I realise that politics is the ‘art of the possible’ – and that the average politician is acutely sensitive to the sentiments of their electorate. However, there are times when, at their best, politicians enlarge our possibilities and in doing so, lead their electorate to a better place. This is why politics used to be considered the most noble calling of a citizen.

Our Prime Minister, Scott Morrison, has been wrestling with a form of politics that falls well short of that ideal. It is open to him to choose something better. That is both the gift (and curse) of his humanity. In Glasgow we will see not only what kind of politician Scott Morrison can be on our behalf. We will also get the measure of his capacity to lead. But most importantly, he will reveal the character of his humanity.


Big Thinker: Judith Butler

Judith Butler (1956—present) is an American academic and activist, who has made considerable contributions to philosophy, literature, gender and feminist studies.  

They are the Maxine Elliot Professor in the Department of Comparative Literature and the Program of Critical Theory at the University of California, Berkeley and holds the Hannah Arendt Chair at the European Graduate School in Sass Fee, Switzerland.

Although Butler has an impressive number of publications to their name, they are best known for their book, Gender Trouble: Feminism and the Subversion of Identity (1989; 1990).

Gender Trouble

Gender Trouble explores the traditional understandings of sex and gender in feminist theory. Butler argues against the view that gender is based on (or follows from) our biology, claiming instead that gender is produced by performance – that we construct gender by behaving and expressing ourselves in certain ways.

This “gender performativity” has been interpreted in different ways. Some have taken performativity to mean that gender is determined by society and therefore completely outside of the individual’s control (i.e., you are the gender you have been assigned).

Others have understood performativity to mean that gender can be chosen or changed at will, since it has no biological basis. Members of the trans community have critiqued this understanding, saying that conceiving of gender as something that can be changed voluntarily makes it seem superficial or fake and risks undermining how important someone’s gender identity can be to their sense of self.

More recently, Butler has clarified their own understanding of gender performativity, stating:

“We are formed through gender assignment, gender norms and expectations. But we’re not trapped. We can work and play with them [and] open-up spaces that feel better for us or more real for us.”

Butler’s understanding of gender performativity lies somewhere in between the two previous views. For Butler, gender is not something that is fixed by society and unalterable on an individual level, but it is also not something superficial that can be changed like a piece of clothing. Instead, gender is created through sustained practices that make gender appear as though it’s something natural or internal to us, but really these practices are influenced and regulated by society and culture. By recognising this, Butler says, we can collectively start to change gender norms so that we can each find a way to live more authentically.

Though the term ‘non-binary’ did not exist at the time Butler published Gender Trouble, in recent years Butler has changed their legal gender to non-binary and uses she/they pronouns.

After Gender Trouble

Gender Trouble had a profound influence over the development of feminist theory and is widely considered to be one of the founding texts of queer theory. Since its publication in 1989, Gender Trouble has been translated into 27 languages and has become a staple text for feminist and gender studies courses all over the world.

As a result, Butler has achieved a fame that transcends the academic community – and it hasn’t always been positive.

For some people, Butler’s views are considered dangerous or threatening to the traditional way of life. In 2017, evangelical Christian protestors burnt an effigy of Butler outside an academic conference they were attending in Brazil, while chanting “take your ideology to hell.”

Despite this, Butler continues to write and speak about gender, feminist and queer issues and is active in the resistance against the anti-gender movement – an international movement that opposes gender equality, LGBTQIA+ rights and sexual and reproductive freedoms.

Butler has, for many years, been a vocal advocate for the rights of marginalised people and has been active in anti-war and anti-racism movements.

Their most recent book, The Force of Non-violence: An Ethico-Political Bind (2020), argues that social inequality cannot be separated from our understanding of violence. For Butler, violence is not just swinging fists and wielding weapons. Violence is any action (or inaction) that harms another – including public policies and institutional practices that create social inequalities.

In response to this kind of violence, Butler advocates nonviolence. Importantly, however, Butler does not understand nonviolence as something passive. Nonviolence requires an aggressive commitment to radical equality and an “opposition to biopolitical forms of racism and war logics that regularly distinguish lives worth safeguarding from those that are not.”

Butler wants us to recognise that we are all in this together and build a world that is reflective of this – a world that is committed to radical equality.


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.


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.


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.


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.


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.