Standing Room Only - Cures for a Compassion Fatigued Populace

It was the most crowded I had seen Manning Clark Lecture Theatre 6 at the ANU - more crowded than Intro International Relations. There were so many people stuffed in that they were four deep standing at the back, and perched on the stairs. It has been a movement that has at times been deeply inspirational, and deeply frustrating, as only a cause that has been suffering setback after setback since 2001 can be, but Canberra has been steadily coming out for refugees in the past few weeks after the M68 judgment was handed down. Canberra - and the rest of the country.

For a battle-weary social justice warrior, worn down with a politics that keeps sinking deeper and deeper until we are at a point where Michael Pezzullo, Secretary for the Department of Border Protection, can think he is scoring a legitimate political point when he fingers the ABC for confusing the stories of two children who were abused on Nauru, crowing that the five year old wasn't raped (but a ten year old was?) and maybe it was 'just skin-to-skin' contact (what is that supposed to mean? and would Pezzullo be so nonchalant about it if it were happening to his child?) and perpetrated by another young detainee (read: another child that we have locked up and brutalised, who may well be an abuse victim himself..?)... Wait, where was I? Oh yes. Pezzullo is a contender for worst human being in the world history of ever, and compassion fatigue is, I am pretty sure, where I was up to.

Then something like this happens, and damned if you don't all show me that Australians ARE better than this and we can say "It'll be right" and we can find it within ourselves to turn up and demand to be heard. It has been heart-fillingly beautiful to watch the Churches come out and call for sanctuary for refugees our Government wants to condemn to Nauru, and the states and territories, and the unions. It looks like all it took were some baby photos, really, for us to remember that these refugees are people and that a decent country does not treat people the way that we have treated them. Australia may be reluctant to celebrate their difference, but they might be ready to understand that we have much more in common with these people than we don't.

So this is a long delayed return to this blog, and blogging more generally, and it has not been my style to talk about my own reflections and moments. Snark is more entertaining to read and to write, and I know my earnest pursuit of People Being Less Shit To Each Other is tiresome and doesn't generate clicks. But if you've stumbled across this page for whatever reason; here are the two ideas that tonight's panel discussion on media and spin pulled from me.

Firstly, the control that government has exercised over media and information about asylum seekers in this country is unprecedented in any democratic country during peacetime.
Despite a department full of pencil pushers and mailroom boys and girls who have to wear a military uniform to go to their jobs in the old public service department of Customs, we aren't at war. Operation Sovereign Borders is one of the most insulting things done to press freedom in this country. We don't talk about stopping the boats or anything that happens on water, including whether or not the Australian government paid money to the people smugglers (whose business model we are trying to smash) to tow people back to Indonesia. People think this means the boats have stopped, which seems unlikely given the resources we continue to put into towing them back.

Paul Bongiorno talked about difficulties running stories on asylum seekers, specifically, the example of not being permitted to charter helicopters into the airspace above boats and to take footage of the people, the faces on those boats. It's hard to sell asylum seeker stories to a newsroom with other priorities, and certainly not the story about how part of the worst of what we are doing is that we are slowly but surely draining people of their hopes and their mental health over years and years in detention, where we aren't even processing them. The government kills the story by refusing to comment, by refusing interesting visual.

We don't so much have offshore processing centres for asylum seekers as an awful warning to others made from breaking the spirit of men, women and children, driving already vulnerable people who have already seen too much to depression and post-traumatic stress. Kids are jumping off buildings to die, or be injured badly enough to escape Nauru for medical treatment. We can't let them go to a more compassionate country because that will 'encourage people smugglers' - notwithstanding that the logic of that is that these people are condemned to indefinite detention in appalling conditions practically forever, simply to provide a warning to others. If we were to process and re-settle them, then they might keep coming, because that's better than a warzone or the Taliban. The logic of this kind of deterrence is to break people, to make children wish they had died at sea because at least then this nightmare would be over - because only then can we stop people maybe attempting to get here by boat and maybe drowning.

Well, if the churches can stand up against child abuse and the Victorian Premier can take some refugee children and some media to the zoo ,why can't media organisations run footage of the photos of the 37 babies on Nauru under running audio, explaining that they can't show any other visual footage because there's an $8000 non-refundable application fee for a journalist to try to get a visa for Nauru, and journalists covering the beat for years have been almost as long denied the opportunity to get past the gate and talk to anyone locked up on our behalf. There is no other vision, but here - we have some photos of the people we are doing it too. Look closely.

I understand this is an idea that is unlikely to gain any traction - that it is anathema to objectivity and impartial reporting, but there's also an obligation as the fourth estate. We are not dealing with a political climate where our media outlets are given access to the information to report, and there is no legitimate excuse for it. I think it calls for something more drastic. The media wields this massive capacity to shine a light on what is happening and to pressure the government to be more accountable. Instead it seems like what we get is 'there's no visual, or no departmental comment, so there's no story'. Surely it would be beautiful and defining moment of modern media if there was a stand to tell the stories anyway, visuals be damned, and let the absence of the visuals and the departmental comment stand as testimony to the contempt our government has for the rights of a democratic citizenry to know what is being done in our name.

Secondly, that the freedoms we take for granted are meaningless if we can't or won't use them to defend those without voices, those without freedom. 
I studied journalism for two years, transferred to law, and, as you may have noticed, I have opinions about lots of things, particularly about the crappy things that our government is doing or has done or suggests it might contemplate doing. I am not always diplomatic or restrained in expressing my views, I attend rallies and sign petitions, write blogs and argue with trolls on Facebook, and in terms of consequences I risk at most annoying some slightly bigoted Facebook friends who defriend me because I engage them in spirited and informed debate when they're being bigots.

There are definitely countries in the world where I would not exist. Where, even if that society were to let me go to university and study journalism or law, there would be rules in place which criminalised having opinions about or ridiculing those in power. And that's if I'm lucky enough to be in the sort of hellhole where the government bothers with the rule of law to restrain criticism, and not the other sort where I am just disappeared and dumped in a mass grave along with anyone else who looked sideways at the wrong person.

We believe strongly in free speech in this country, even if our laws don't really enshrine it with any real vigor. We believe it so much that angry bogans on the internet will get incandescent with bogan-rage at you if you dare to challenge their right to their opinion with facts and substance, as though having your ideas tested by reality is somehow synonymous with  censorship. We have people who are fleeing here, who are in border refugee camps around the world and on Nauru and Manus - who have not had that freedom, who are fleeing the sort of world where you don't sign petitions and attend rallies because the risk of the state police knocking on your door and taking someone from your family away is a real and terrifying one.

I have a voice and the freedom to express my opinions (so long as those opinions were not obtained in working in the offshore detention camps Australia is a little bit vague about its responsibility for). If I can speak out without fear of repercussions, then that surely creates an obligation on me, on all of us in that position, to use what power I have where I can to try to improve the situation of those who have no choice but silence.

Movements like this sometimes have to wait a long and painful time for their moment, but I am proud to stand with this movement, and I can only hope it continues to grow until it can't be contained in a lecture theatre or a rally, and the world we are protecting is one where we understand that there is more that unites us than divides us, and the greatest strengths of our society are not lessened by sharing them with those who come  to us for safety.

Does Andrew Bolt Love Horse Cock? (Or: Why Freedom of Speech is Relative)

I confess I was looking avidly forward to the result in Eatock v Bolt, on the basis that the decision would either result in the expansion of the implied constitutional freedom of political communication in Australia, or it would result in Andrew Bolt receiving a widely publicised kicking and his followers engaging in highly entertaining championship tantrum-chucking.

Either one of these outcomes contained sufficient silver-lining to offset any negatives I could see. In the wake of the public spanking delivered to Bolt by the Federal Court, several things about the nature of free speech in this country have become clear.

Firstly, Andrew Bolt's free speech did not in fact extend to making factually innaccurate claims about pale-skinned indigenous Australians which had the effect of damaging them as a class . By the way, ragey tantrum-chuckers of the libertarian fringe, this doesn't mean that we live in less of a democracy than we did before Eatock v Bolt. A right against Bolt in such circumstances against racial vilification was only one civil option - the standard vanilla defamation proceedings would probably also have been successful.

Bolt's free speech didn't extend in this way because no one's does. It has always been limited by injunction, defamation remedies, rights to privacy and non-disclosure policy, and expanded and protected through alliance to a limited right to political information, which is derived from the notion that since we must vote, we have a right to make that decision without having access to that information hindered. That right has been extended to broadcasting material obtained of animal rights abuses while trespassing (Lenah Game Meats), prohibiting the government banning political advertising in the lead-up to an election (ACTV), or reasonable political critique (Lange). What is clear from the case law is that we're talking, with the possible exception of parliamentary privilege defences, of a situation where free speech derives from a right to be informed. It clearly runs into problems where the speech is baseless opinion misrepresented as authoritative fact.

As well as these restrictions, freedom of speech is, and has always been, a right which is correlative and accountable to other rights. It has never been unlimited. My right to photograph you in the shower and publish those photographs does not trump your right to privacy, and it shouldn't. Nor do I have an unqualified right to publish an article about someone who is not a public figure, making accusations about them without bothering to check the factual accuracy, or, knowing there is no fire, to shout 'fire' in a crowded theatre. This should not be mistaken for state censorship -there is nothing preventing me putting that speech out there in the first place save my own awareness of the consequences, legal, ethical and practical, of so doing. If one is trampled in a panicked mob trying to flee a theatre which is not in fact on fire, well, that is a consequence of having shouted 'fire'. Similarly, a group of people you have attacked in a nationally syndicated newspaper bringing a civil claim against you is a consequence of the initial decision to publish. There's a reason for the phrase 'Publish, and be damned!'.

For example, if I were to make the claim that Andrew Bolt is routinely indecently engaged with farmyard animals. This is a claim that I cannot verify based on my current experience, nor one which I am basing on an authoritative source or considerable research. I could perhaps look through some of the columns he has written, and make use of innuendo to suggest such things, but on the face of it, I am likely only to turn up enough to suggest Andrew Bolt hates PETA and has changed his mind a few times on the live animal export issue. Our defamation law works such that even if it were true, publishing would as a starting point be grounds to sue for defamation simply as something likely to impair the reputation of the ordinary reasonable person - because, again irrespective of truth- we assume everyone's reputation is good at common law. Were I able to show any of a range of defences - such as truth, genuinely/honestly held belief - or make arguments on the mitigating factors, I may still get away with publication of such vicious rumour and defeat any defamation suit that's brought.

Most major media organisations have in-house legal counsel, whose job it is to answer questions about whether publication of a particular article is likely to open the organisation up to legal liability. Often, in practical terms, the decision may come down to not 'Is this libelous?' but rather 'Is the person we are libelling likely to sue?'. In the case of Bolt, the gamble is that Bolt's abrasive style and casual bigotry sells copy, and sales of copy mean the lifeblood of advertising revenue continues to flow. If no one sues - or if they reserve their right under the Australian Press Council to file a complaint (and thus waive a right to sue), then the paper wins out by publishing anyway, even when they know it's likely to be libellous.

In this case, one more attempt by Bolt to chip away at the credibility of indigenous rights in Australia did not go unchallenged. If you're outraged there's a law saying your free speech is limited by hate speech legislation, you should probably be even more outraged about the overuse of injunctive relief in interim civil cases and the use of defamation law to shut down critique of those with the money to launch applications for injunctions with relative ease. If you're not - if you're just angry that Bolt got slapped around for making a (not particularly well-informed) point about light-skinned Aboriginal people having access to government funding and grant programs, a group who initially didn't even seek damages, simply a judgement against - then maybe you should be wondering what your free speech is worth. When someone is allowed to pump untreated sewerage and profitably sell it as Evian, the marketplace of ideas needs a rethink.