Tuesday, 15 May 2018

It's time to abolish the crime of rape

Recently, the Four Corners program on the ABC documented the case of a young woman called Saxon Mullins and the man Luke Lazarus who was convicted of raping her and then had his conviction overturned by on appeal on the grounds that he genuinely believed she was consenting to intercourse.

This case highlights the problem with our rape laws as they currently stand.

First of all let me say that the Appeal Court judge erred by exonerating the accused in this case. If the court had applied the “reasonable man” test, Lazarus’s conviction would have stood. The “reasonable man” test is a criterion often imposed in legal deliberations based on how a reasonable person might be expected to act in a given circumstance. In this case, although Mullins admitted she did not clearly and forcefully tell Lazarus to stop, or could not recalling doing so, no reasonable person would have expected an 18 year old woman who has never had sex, to want her first sexual experience to be on her hands and knees in a filthy back alley being anally penetrated by a man she had just met.

There is also the fact that Mullins admitted she had consumed a fair number of drinks which suggests her ability to consent or to maintain control of the situation was very likely to have been impaired. That is something that Lazarus also should have understood. Again, a reasonable man should have realised that, even if she gave consent or appeared to be passively allowing intercourse to take place, because she had been drinking, her judgement was likely to be impaired.

The appeal court’s decision in this case seems to relieve the alleged rapist on any responsibility for ascertaining the state of mind of the alleged victim or indeed having any due care for her overall welfare. Indeed there is very little clarity in Law as to what the responsibilities of the man are (I am speaking of men having sex with women but the discussion applies to any combination of sexes) in relation to determining the state of mind of or the potential consequences for, the woman. For example does the man have to be convinced beyond a reasonable doubt that the woman is consenting, or can he just make a decision on the balance of probabilities. And how scrupulous is he supposed to be in making sure her consent is not only informed but is not emanating from some state of impaired judgement?

Furthermore, does the man have a responsibility for the welfare of the woman beyond the immediate situation? In the classical interpretation of the crime of rape, apparently not. To put it crudely, the traditional rule is if she allows it to happen, then it’s her fault, she bears the consequences.”

The problem is the crime of  rape is a binary concept. An act is either rape or not rape depending on whether there was consent or not consent. But the idea of consent itself is essentially an artefact of the legal system. It fails to reflect the actual complexity and subtleties of sexual encounters. Because a judge or a jury has to find the defendant guilty or not guilty – which is a binary decision – the basis for that judgement, which is consent, has also been configured as a binary concept.

But consent cannot be considered as a simple matter of yes or no because it can be obtained in so many different ways. Consent can be obtained through promises, payment, fear, fraud or the deliberate impairment of judgement. Threatening someone with a gun or a knife can clearly elicit consent. Intercourse with someone who is unconscious or disoriented by drugs or alcohol to the extent that they are not aware of what is happening is also not consensual and situations where a woman has sex with a man thinking he is someone else also negates consent. So even under the traditional tests, consent alone does not legitimise intercourse.

But those invalidations do not go far enough. Explicit threats of violence or a visible weapon are not  required to induce fear. Fear can arise purely from the circumstances, from perceived or imagined threats. It can arise from a psychological condition in the woman herself. That fear might be unreasonable or unjustified but it still negates her consent.

If a court is prepared to give weight to the man’s subjective assessment of whether the woman is consenting, surely the woman’s subjective assessment of whether she is at risk must also be taken seriously.

To qualify all this let me explain that, in the late Sixties, I was part of team of researchers at Melbourne University who conducted a post-graduate study into the crime of rape. It was, at the time, one of the few studies and ever done on the subject and certainly the most comprehensive study done up to that time. One of the key findings of that study was that the traditional definition of rape as being intercourse without consent was inadequate and a recommendation was made that the crime itself would be better abolished.

It was clear to us that, rather than a binary definition of rape/not rape, there was a gradation between willing consensual sexual intercourse and forcible sexual intercourse with violence or death threats. Between those opposites lay a range of interactions and somewhere along that line was a point where those interactions changed from acceptable to unacceptable. It was the point where means of obtaining sex turned from legitimate to illegitimate: where courtship became coercion, where seduction became harassment and inducement became entrapment.

The suggestion of our report was that the crime of rape be replaced by a stature dealing with sexual imposition or sexual coercion. Fifty years later, partly because of the campaign against sexual harassment, that idea is finally starting to gain traction.

Traditionally the role of coercion has not carried sufficient weight because there was a notion that women should resist rape even to the point of dying rather than submitting to it. A woman who did not fight to the death was thought of as having placed her life before her honour. That is not so far from the situation in some countries where women are still imprisoned for being raped but it is worth remembering that shades of that existed in Australia as recently as about fifty years ago.

A reformed code of sexual violations would widen the concept of unlawful sexual acts to include any situation where the ability of a person to make choices that are free, informed and beneficial to themselves is impaired.

It would also impose clear responsibility on anyone instigating a sexual encounter to make all reasonable efforts to ensure the encounter was the result of an informed, uncoerced decision by the other party and further that there be no detrimental consequences for that other person. Furthermore it would define a criterion for establishing consent which would not be simply on the balance of probabilities but that which is used for criminal trials themselves – beyond a reasonable doubt.

There are many situations where consent is not so much invalidated as irrelevant. For example, a  situation that people I know have experienced: a man offers to drive a woman home but instead drives her to a remote location far out of town. She is given the choice of having sex or getting out of the car. Historically, if the woman agrees to sex, the man is not guilty of rape because he made no physical threats and the woman did have the option of leaving. He is however guilty of creating a situation where, if the woman does agree to have sex, or allow him to have sex with her, she is consenting to an act that she would not have otherwise consented to. That is the key element of coercion. In that situation, a court would traditionally have focussed on the decision that she made and decided she made a free and informed choice to have sex rather than walk twenty miles home. However that would be  to focus on the wrong issue. The issue is not what the woman decided: it is that she should not have been forced to make a decision at all.

(Incidentally, it is surprising to me that Lazarus was not charged with abduction since he told Mullins he was taking her to the “VIP” room of the nightclub but actually took her out to the back alley. Lying to her about where they were going makes it technically an abduction. It also goes to establishing his intentions since that lie was clearly the first step towards engineering a sexual encounter.)

Another case that is all too familiar is the situation where a woman finds herself compelled to have sex with a man just to get him to leave, or let her sleep. A man keeps a woman up all night till she is exhausted, or won’t go home until the woman gives in and consents to sex. This is in fact the literal meaning of harassment – to harry someone to the point of exhaustion.

The fact is that woman can be coerced, blackmailed or tricked into having sex in a number of ways that violate their autonomy but don’t technically qualify as rape or even assault. They take the form of fraud, blackmail, extortion, beleaguerment, psychological manipulation and various forms of domination.
Domination, which appears to be the key factor in the Lazarus case, is one of the most common and most dangerous forms of sexual coercion or bullying but  also the most likely not to be acknowledged as a form of coercion because of a long-standing notion that women find it erotic. Domination is the situation where the man does not become aggressive or threatening but becomes "masterful" giving orders and exerting control over the woman. Women, especially young women, are likely to find themselves with the man's instructions not because they are impressed by his masterfulness but because they simply don't know how to deal with the situation and regain their autonomy.
The main argument for replacing the crime of rape with general, graduated, crime of sexual coercion is that the acts which constitute sexual imposition - that is: extortion, blackmail, bullying, harassment, deception etc - are already illegal in other fields of human endeavour.
Many of the means that men use to obtain sex from women are methods that would invalidate, for example, a sales contract. A contract for the purchase of goods that was signed under duress, because of exhaustion, or fear, or false promises would be quickly invalidated by a court. But, oddly, the same scrutiny is not applied to agreements for sexual activity.

The point is that the criminality in a sexual assault or any other sex crime does not reside in the sex itself. The illegality lies in the means that used to bring the act about. We accept that you cannot obtain goods or money by deception, by coercion, by blackmail or by forcing people to make instant decisions. That’s why we have cooling-off periods for all major purchases such as houses and cars. The law recognises that people can be confused by sales pitches and will commit to detrimental financial deals that they later regret. In other words the law is prepared to protect us from our own decisions, even ones we made freely, or thought we were making freely, at the time.

Without wishing to trivialise of the Mullins/Lazarus case, imagine that, instead of it being about a woman having sex with a man in an alley, that Lazarus was a car salesman who had sold Saxon Mullins a car she didn’t want for an exorbitant price.  Any court would have annulled the sales contract saying, firstly, she was too young to enter into such a contract, that in any case it clearly wasn’t the sort of car she wanted and that he had taken advantage of her youth, inexperience and vulnerability to sell her a car which was basically junk. His defence that he “sincerely believed she wanted that car” would fall on deaf hears and he would be fined and probably lose his dealer’s licence.

Surely a young woman’s dignity is more important than a car.  

Tuesday, 1 May 2018

Paintings vs Painters

A couple of days ago a French museum in the south of France, dedicated to the work of painter Etienne Terrus, discovered that more than half the works in the museum were fakes. This was described by curators as a “catastrophe.”

But here’s the thing.

It’s most likely that, unless there was an entire Terrus-faking cottage industry in the Pyrenees, most of the 82 fake paintings were painted by the same person. Now, we don’t know who the faker was but let’s call him Benny.

Now, if Benny was not as good a painter as Terrus, the question arises as to why the curators did not pick up that half the collection was not as good as the other half. Did they assume that, like most painters, Terrus had good days and bad days. But if that was their assumption, why hang paintings that were not the best examples of the painter’s work, let alone make up half the collection out of them.

My belief would be, however, that the curators were fooled into acquiring these paintings because they were exactly the same standard of painting as Terrus’ work. And that raises the question: if Benny is just as good a painter as Terrus, why aren’t his or her paintings just as valuable, just as significant, just as worthy of being displayed.

A few years ago there was an art scandal in Sydney where someone bought a large painting alleged to be painted by Brett Whitely. It was later shown to be fake. Again, here’s the thing. If you like the kinds of paintings Brett Whitely did and would like to have one, and you find a painting that is like a Brett Whitely painting, so close to his style that art aficionados think it could have been painted by Brett Whitely painting, then surely your wish has been granted. Surely a painting that looks just like a Brett Whitely is as good as a real Brett Whitely if that's what you want to look at. If you insist that the painting not only look like a Brett Whitely but have been actually painted by Brett Whitely, you’re not really interested in the painting itself, you just want the name.

My advice to the curators of the Terrus museum would be: if half your collection of wonderful paintings was not done by Etienne Terrus but by an unknown artist I have dubbed "Benny" find out who that artist is and rename the museum the Musee de Terrus-Benny and let it honour two artists who are clearly equally good.

Monday, 14 August 2017

Nine responses to bigots who oppose same sex marriage.

Here are nine responses you can make to people who say they oppose Same Sex Marriage.

1.      Marriage is by definition between a man and a woman.

Wrong. That is not the “definition” of marriage. The word marriage simply means “joining together.”  It’s like saying the definition of alcohol is “a beverage that cannot be sold to anyone under 18 years of age.” The definition of alcohol is a beverage that contains ethanol. “Between a man and a woman” is a local limitation placed on marriage just like the age restriction is a limitation placed on alcohol. It’s not the definition.

This is demonstrated that, just as the age you can legally drink changes from place to place, many countries recognise Same Sex marriage as the same as Male-Female marriage, so the  “between a man and a woman” condition is clearly a local issue.

2.      “I don’t mind same sex couple living together but it shouldn’t be called a ‘marriage’. Give it another name.”

This is pretty much the same as saying, “I don’t mind a bunch of women going out onto an oval with stumps, a bat and a ball and bowling the bowl and hitting it with the bat and scoring runs but don’t call it ‘cricket’. Cricket is a game played by men.”

Things should be called by their proper names. Cricket is cricket and marriage is marriage.

3.      Legalising Same Sex Marriage will change our societies forever.

Yes, for the better.

4.      Legalising Same Sex Marriage will change our societies for the worse.

Firstly, “legalising” is not a good word. Same Sex Marriage is not currently illegal. It is perfectly legal for Same Sex couples to live in marriage-type relationships.

Secondly, those marriage-type relationships ARE currently recognised as legal marriages by a many government and private organisations. Centrelink, the ATO, the Family Court and courts in general will recognise those relationships as de facto marriages and treat the partners accordingly.
“Ahh,” says the homophobe, “But de fact marriages are not real marriages.”

Yes, they ARE. That why they include the word “marriage”. Saying a de facto marriage is not a marriage is like saying a yellow car isn’t a real car. Yes, it is a real car, it’s a yellow car.

5.      “Why should a small minority of people (meaning gays) tell us what to do?”

The gay community is not trying to tell others what to do. They are not trying to place restrictions on Male Female relationships, so why are people trying to place restrictions on gay relationships? They only want to be able to do what everyone else is doing.

6.      “The people have a right to be consulted about this change.”

Why? They weren’t consulted when the “a man and a woman” clause was added only a few years ago. They weren’t consulted when homosexual acts were decriminalised.

As I’ve mentioned before, had you conducted a plebiscite in the state of Mississippi in 1960 as to whether African Americans should be able to vote, it is highly probably that the majority of Mississippians would have voted “no.”  If that were the case, should the government have legislated accordingly and restricted the vote in that state to whites only? Of course not. It is not part of the democratic process that any majority can deprive a minority of rights that they themselves enjoy. The right to vote must be universal. The right to marry whom you want must also be universal.

7.      “I’m sick of being bullied by these LGBTI extremists.”

Cry me a fucking river. Do you want to talk about the bullying that gay, lesbian and trans people have had to put up with for two thousand years?

8.      “It’s such a huge change.”

No, it’s just a technicality. It only means that Same Sex couples get to sign a marriage certificate at the end of their wedding. That’s all. It’s just about a certificate which then gets filed with the Registry of Births Marriages and Deaths. It creates a public record of your relationship which is what "legal" marriage is really all about.

9.      “Just because I’m opposed to Same Sex Marriage doesn’t make me a homophobe."

Yes it does.


Wednesday, 28 June 2017

It's time to change the contempt of court laws.

Let it be said, for it is no secret among people that know me, that I am no fan of lawyers or the law. But even I must begrudgingly concede that some sort of system of laws and courts is a necessity. What I would insist, however, is that they are only a necessity - that is to say, a means - largely regrettable - for achieving a specific goal which is a peaceful, safe, non-violent society.

There is for me, nothing magical or mysterious about the law or the legal system. They are simply tools for achieving social harmony, just as electric wires and water pipes are tools for delivering power and water to my kitchen. The Law is not some sort of magical Harry Potter world of arcane knowledge and be-robed wizards though you might well imagine it was if you go into a court room. Australian lawyers still prance about the court in black robes and wigs while judges preside from the bench in long tresses and robes which increase in splendour as they rise up the ranks. There is also a pervading sense that lawyers and jurists see themselves as superior class of beings who are not going to take any impudence from us muggles.

Recently, three members of the Australian Parliament were summoned before the Supreme Court of Victoria to "show cause" why they should not be charged with contempt for criticising the sentencing decisions of some (unnamed) judges.  At first the politicians admitted they had perhaps expressed their views a little immoderately but did not apologize. When threatened with contempt of court however, they were all forced to apologise.

I cannot express how outraged I am at the thought of three members of Parliament, duly elected representatives of the Australian people, being forced to abjectly apologise to what is essentially a group of public servants: the only reason being that these paid government employees had the power to send then to jail if they didn't. It is not only a violation of the right to freedom of speech but a perversion of how power in society ought to be exercised.

Contempt of court is, of course, a law which makes it an offence to disobey an order of the court. Fair enough, but it has been expanded however to include such things as making comments about matters that are sub judice in other words, relating to a trial that is in progress. This, it is claimed, is because, such comments can be construed is being an attempt to influence the decisions of the court.

Now, it might be faintly possible to see how comments might influence a jury hearing a case, but I'm not sure why it would be a problem in cases where only a judge is presiding. Are judges worried that a newspaper editorial in a paper, or television interview might cloud their judgements? Are they so unconfident about their own power to decide a case that they don't want to hear anyone else's opinion because it might confuse them?

Of course not. The reality is just that judges don't want people saying anything that might contradict them, and they will particularly not countenance anyone making any derogatory comments about them or the court procedure. It's the impertinence of a lay person presuming to comment on a trial, or indicating anything less than respect and deference to the court that is not to be tolerated. Thus it is an offence to comment unfavourably on a court's decision even after the case is over when clearly there is no risk of influencing the decision.

In the Victorian case, the judges justified their decision to take action against the politicians by citing the constitutional rules on "separation of powers." This simply states that the separate branches of government, the Legislative, the Executive and the Judiciary must operate independently and one must not be able to influence the other.

This is of course an absurd principle that has no justification in the modern world, and particularly not in Australia where, for a start, there is no separation between the Legislative and the Executive. However, while it is obvious that courts must be independent from outside influences in making their decisions it is equally obvious that the principle is designed to prevent anyone influencing any particular case, not the overall operation of the courts as an public agency.  

It is also important to note that the comments of the politicians were in relation to sentencing, which is already not a wholly independent function of the court. The Victorian Chief Justice noted that attempting to influence the court in its sentencing decisions is ‘impermissible in law”. Now, if that is the case, then how are victim-impact statements, pre-sentence reports and other testimony from experts, which are considered by judges and are specifically intended to influence sentencing decisions, permissible in law? If victim impact statements are permissible, in a case where the victim is the wider community, as in the case of terrorism, why should not representatives of the community be allowed to make statements that reflect the concerns of the community. Surely the public at large has a legitimate interest in the sentencing of people who have declared themselves to be enemies of the public.

And surely, if all sources of influence are to be eradicated than the reportage of all crimes, especially those of highly disturbing nature would have to be prohibited until after the completion of the trial.

In regard to the fact that is “constitutionally impermissible” for one branch of government to influence another let us say that, for a start, it would be absurd to imagine that the Legislative branch of the Australian government does not influence the Executive Branch as they are drawn from the same group of people who alternately sit in Cabinet one day and Parliament the next. Unlike the United States where the President is separately elected and empanels his own Cabinet from whomever he chooses, the operations of the Australian Executive, i.e. the Cabinet and Public Service, are inextricably entwined with decisions made in the Parliament. What do we imagine is going on when an Senate Estimates Committee interrogates Ministers and public servants about their actions?
Secondly, defining the Judiciary as a branch of government is anachronistic and repugnant. Judges are not elected and they have no power to pass laws. Essentially the Judiciary is a branch of the public service and shares the same status as the Police, the Armed Forces and the Departments of Health, Education, Customs and so on. Like those other agencies they are paid for from tax payers' funds and ultimately accountable to Parliament to fulfil the role assigned to them. The Courts are one part of the trio of agencies that make up the Law Enforcement system - Police, Courts and Correctional Services. Significantly the Police and Correctional Services are legally, and frequently criticised. So why can't the courts be since they are part of the same system? 

Of course independence is a necessity, but the question is what constitutes independence. The concept of anyone in power, elected or not, being able to influence the court to find someone guilty or not guilty is unthinkable. In the same way, the notion of a politician being able to tell a doctor how to perform an operation is unthinkable. However, if a disturbingly large number of patients start dying, the doctor responsible can be suspended, investigated, fired or even charged with criminal negligence. In other words, the independence of the medical practitioner and the doctor-patient relationship is respected, but still conditional upon the doctor providing the service they are hired to, which is make people well.
If a judge were, hypothetically, to start making decisions that were dangerously irrational some intervention on the part of the government would surely be not only justified but essential.
In any case, sentencing is a different matter. As mentioned above, judges typically request and receive advice from a variety of people before making sentencing decisions because sentencing in not based on a knowledge of law alone. Indeed it has been suggested from time to time that, because of their inexperience in assessing the likelihood of offenders re-offending, sentencing should be taken out of hands of judges and passed over to specialist sentencing tribunals. It is not known whether this would be an improvement but the notion itself is an acknowledgement that a different skill set is involved.

Finally, however, the reliance on "the separation of powers" argument by the court is misleading because the reality is that any citizen who openly criticizes the court can be charged with contempt of court whether they are in a position of power or not.  This notion that respect for the court and the judicial system supersedes all over considerations (such as freedom of speech) is uncomfortably reminiscent of prelates who placed the reputation of the Church above justice for victims of abuse.
The Contempt of Court laws must be amended to apply solely to situations were people directly disobey orders from the Court. To use them to shield judges from criticism is itself contemptible.

Wednesday, 7 June 2017

Why Brexit is the first step to combatting terrorism

For many people, the primary cause of the Second World War was nationalism – the ethos of creating and promoting a strong and distinct sense of national identity among the citizens of a country. In particular the intense nationalism of Nazi Germany, which characterised Germany and Germans as the rightful rulers of the world, followed closely by the fanatical patriotism of the Japanese who also regarded themselves as destined to rule at least the Eastern Hemisphere was blamed for the conflagration the consumed 40 million lives.
In fact, nationalism had been under attack from the Marxists in the 19th century. Socialists were internationalists, convinced that nationalistic sentiments, which led inexorably to wars, were part of a capitalist strategy to divide and exploit the working class.

However, nationalism has one great strength that internationalism lacks. Nationalism is a remedy for tribalism.
In promoting a national identity, citizens are encouraged, not necessarily to abandon things such as ethnic or religious identity but to subordinate them to their identity as citizens of their country. Internationalism fails to do this because it is inherently multicultural, seeking to unite people under some form of global government or ideology while at the same time retaining their local cultures and customs. In short, internationalism is essentially just anti-nationalism in that it accepts national governments as administrative and political instruments but believes that there are only two permissible types of identity – the identity which arises from your membership of a particular ethnic, racial or religious group, and your identity as a member of the global human race.

The European Union arose initially as an attempt to replace the nationalism, which people blamed for starting two devastating wars, with a pan-European identity. This worked to a certain extent with many people, notably from the intellectual classes, prepared to declare that they were “Europeans” rather than British or French. But this declaration was mostly theoretical. Defining oneself as “European” became problematic when someone asked “Well, what does that mean? What constitutes European characteristics?” The problem with creating a "European" identity is, firstly, that Europe is extremely diverse in its cultures: Greece is not like Sweden and Spain is not like Poland. Secondly, ethnic identity can be subordinated to national identity when people intermingle but in the EU, despite the opening of borders, most French people still live in France and most Germans still live in Germany. Thirdly, an essential requirement of a national identity is a physical border to define who is in and who is not in the nation. They EU’s border is poorly defined having some countries on its perimeter which are not quite in, like Norway, some trying to get in and some perhaps on the verge of leaving or being thrown out. Fourthly, national identity depends on some sort of strong central government, not only for the unification of laws, which is essential for any national identity, but also to manage the cultivation of that identity and the rituals and reassurances the constantly remind people of what country, and what kind of country they live in. The EU has no such central government, only a Byzantine bureaucracy in Brussels with an unelected Parliament and a leaders which most people in the member countries cannot name, and certainly could not recognise on sight.

For the last five hundred years, probably no country, with possible exception of Japan, has had such a clear sense of national identity as Britain, even given the separatist sentiments of some refractory Scots. From the time Henry VIII set up Britain’s own version of the Catholic Church and Elizabeth oversaw the destruction of the Armada, Britain saw itself as a unique nation, blessed with a continuity unimpeded by the constant ebb and flow of invasions and empires that constantly changed identities across the Channel. That strong sense of being English, later British, created a unity that was even capable of surmounting the British class system. The revolutionary leaders of France envied this unity and were at pains to impose a similar French identity on their country, still embodied today in the “Vive la France” attitude. The Risorgimento turned “Italian” from a geographical term to a type of citizenship and the unification of a mass of tiny fractious kingdoms and principalities into what became Germany was effected by the creation of a national identity - "German" - which subsumed older identities such as Prussian or Bohemian.
Now, it is possible to argue that this process of concatenating small countries into large countries suppressed conflict within European nations but led to vastly more destructive wars between the nations, and this indeed is true. But the fact that one of those recently formed nations got carried away with their new-found identity doesn’t mean that nationalism is a bad thing per se.  By way of contrast, we can see how quickly dismantling nationalism can reanimate old ethnic loyalties and hostilities in the case of Yugoslavia where, almost as soon as it fell apart in the collapse of the Soviet Eastern bloc, war and genocide broke out amongst its former constituents.

So what became of British nationalism when it joined the EU? The answer is that it was severely compromised by the internationalist ethos underlying The European Project. That of course was met with approval by many people – the internationalist and socialists of the Sixties and Seventies - who equated nationalism with jingoism and western chauvinism and still blamed patriotism for the two world wars. In the wake of joining the EU, cultural diversity was welcomed and celebrated and immigrants to Britain were not only permitted but encouraged to retain their own cultures and values. The result has been the creation of enclaves in Britain which are virtually countries-within-a-country. The “Trojan Horse” scandal, though dismissed as a scare by the multiculturalists and internationalists, saw several schools in the Birmingham region taken over by Moslem-dominated school councils which altered the school curriculum to conform to Islamic principles and virtually turned them into madrassas. Surveys in Britain have shown that up to 30% of Moslem immigrants believe that communities where large number of Moslem people live should be able to impose sharia law. Again, these problem largely arise because anti-nationalism believes in empowering local communities at the expense of national government.

Now, finally, Prime Minister (for the time being) Theresa May, has said “Enough is enough” and “We have shown too much tolerance for extremism.” But the real problem began long before extremism. It began with the notion that British culture and British law was nothing special and in no way superior to any other European country, or indeed the world. This comes about because  the internationalism that justifies British renouncing its own sovereignty to join the EU is the same internationalism that comprises the notion of cultural relativism – the belief that all cultures are equally good, all religions are equally good, all societies are equally effective and worthy of respect. That cancer of social relativism, which has seeped into public policies across the western world, has seriously hampered attempts in the West to stamp out barbaric practices and, what is worse, ignorance.

It is worth noting that even though American patriotism is obnoxious with its inherent belief that America is the “greatest country in the world” and crowds chanting “U.S.A.- U.S.A”, the United States, with five times the population of the UK, has experienced only a tiny handful of home-grown Islamic terrorist incidents compared to UK which, given the size of its population and the easy access to guns, is quite remarkable.

The first step to attenuating the danger of home-grown terrorism in the UK is for the country to regain its own sense of self; to regain a sense of pride not for its tolerance but for what it is not prepared to tolerate; to make young people growing up in Britain proud to be British rather than proud to be Moslem.  In short, if a country doesn’t offer young people something to believe in, there are lots of other people who will.

Saturday, 6 May 2017

Is it time to do the kindest thing to Australian television?

Some 28 years ago, due to the success of The Comedy Company, I was invited to speak at the National Press Club in Canberra. In my address, I said that it was only by pure luck that the show made it onto air in the first place because it was so hard for people outside "the industry"  to sell a program to one of Australia’s three commercial networks.  (It was equally hard to sell a program to the ABC but that is a subject for another time.)

Because of this, I said I looked forward, perhaps overoptimistically, to a time when there might be more than just three commercial networks that producers could approach to get their programs on air. Some press reported that I had “surprised” the audience by “calling for deregulation” but in fact I was not in favour of deregulation. I was just, like many others, frustrated by the three-way monopoly that has dominated Australian television through my lifetime What I was calling for was more competition.

The justification for the limited number of broadcasters in the Australian industry was always the limited VHF and UHF bandwidth thus the potential diversity presented by the switch to digital broadcasting which allowed a greater number of channels on air was seen as a great opportunity to break down this tri-opoly. The established networks however were very quick to make sure that they would operate any new channels that appeared. For many years they lobbied the government feverishly for the ability to multi-channel, arguing that they were losing money due to competition from DVDs, computer games and the Internet. The government finally amended the broadcasting regulations to allow the existing networks to broadcast on several channels simultaneously.

The result, as we now see, is basically a disaster and has not even made a difference to the profitability of the channels; they continue to lose money and to complain about competition from other sources such as Netflix.

Multi-channelling by a single broadcaster was, of course a bizarre notion from the outset. If a broadcaster could not attract sufficient viewers to make one channel profitable, how could they attract enough to make several channels profitable? Surely having multiple channels would only divide an already shrinking audience, which is exactly was has happened. And wouldn’t operating three channels entail purchasing three times the amount of programs? But, of course, there was never any intention of broadcasting three times the amount of programs or, at least, paid programs. Of the more than twenty channels we now have, about a third of them are shopping channels, that is to say, channels which only screen advertisements. The programming on these channels is therefore not only free, the advertisers pay the networks for the time. This is a television dream – to have advertising income but no actual programs.

The other multi-channels also involve little or no program outlays; they either screen time-delayed programs which have already been shown on the primary channel, or inexpensive repeats.

In fact is that the real benefits of multi-channelling were:

1.       The circumvention of any restrictions on advertising. Once upon a time the Broadcasting Control Board (remember them) put limits on the amount of advertising a channel could screen per hour. The Australian government abandoned that idea many years ago, opting, in response to the constant whingeing from the networks, for the absurd principle of “self-regulation.”  The result is that networks are now permitted to run as many ads per hour as they think the audience can stand, and to even run channels that are 24 hour-a-day continuous advertisements.

2.       The circumvention of any kinds of quotas on original Australian drama or children’s drama. One might have expected that, if a network was obliged to screen 100 hours of original prime time drama per year when running one channel, it would have to screen 300 hours of such material when running three channels, but that is not the deal. Whatever quotas now exist, and they appear to have been pretty much abandoned, the networks can spread them across all of their multi-channels.

3.       The ability to schedule programs across several channels at different times allowed the FTA broadcasters to meet the of challenge of Foxtel by offering similar flexibility in viewing times. (We must remember that for twenty years the networks were terrified of Foxtel which now seems like a minor problem compared to the Internet and is itself now facing the same sorts of problems from on-line entertainment as the FTA broadcasters.)

4.       The granting of commercial digital channels exclusively to the existing networks shored them up from any challenge from new players entering the scene. Thus the one opportunity in the last 50 years to throw the industry open to new players came and went without incident and the potential revolution that digital broadcasting might have triggered was thwarted.

The other question that has dominated network operators has been how to establish a pay-per-view system. All networks were keen to set up their own pay services like Stan and have canvassed all sorts of ways to move their programming onto the Internet where it can be pay-walled, only to be overshadowed by the services like Netflix that strode onto the field armed with a vast library of US movie and TV titles.  

Now, in response to further sobbing and bawling from the networks, the government has agreed to dispense with licence fees, meaning that three large companies are being granted access to big slabs of precious broadcasting bandwidth (technically a public asset like a mining tenement) without having to pay any kind of royalty to the nation.

In other words, the television industry now occupies a position almost identical to that of the (former) Australian car industry except that it doesn’t employ enough people to justify direct government subsidies. Rather, successive Australian governments have supported it by removing almost every requirement relating to social responsibility and, more importantly, refusing to let competitors enter the market.

Indeed, when people talk about the "television industry" they are not talking about the technology as a whole; they are referring to three companies which dominate it.
Back in the early Nineties, British broadcasting television consisted of three BBC channels, one ITV channel which was the commercial channel and Channel 4 which was financed from advertising revenue from ITV. Time on ITV was allocated to various companies who held licences to broadcast on the network at various times and in various territories. For example, as its name suggests, London Weekend Television had a licence to broadcast in London on Weekends. Companies like Thames Television, Granada, TV-AM, Anglia and Yorkshire Television etc had licences for other times and other places. Those licences tended to be automatically renewed until Margaret Thatcher put an end to it. She decided to put all those licences up for auction, which not only raised a large amount of money for the national coffers (Carlton outbid Thames with a £43 million per annum offer) and led to massive changes in commercial broadcasting.

The licences granted to Australian television broadcasters have been rubber-stamped for over 50 years. The notion of a licence being cancelled has never been contemplated, even when networks went out of business or changed owners or even had foreign owners prompting the question, “What would it take for an Australian network to lose its broadcast licence?”

The answer it appears, is nothing. Not only has the idea of cancelling an operator’s licence never been considered, licences are able to be bought and sold without the new owner having to pass any kind of suitability test.

The bottom line is that the Australian television industry is probably the most protected industry in the country, and one wonders why this is so. In an age where Facebook has more to do with deciding elections than print or  television, the networks' political influence is surely waning and they certainly don't have entire towns dependent on them for employment. And despite all the government's commitment to fostering Australian talent and supporting the film industry, current network programming consists almost universally of "reality" shows (drama programs made without writers or actors) and franchised international gameshows and talent quests.

Perhaps all the politicians have shares in Google and Netflix and are content to sit back and watch the television networks disintegrate from the corrosion of their own incompetence. 
But surely it's cruel to watch them suffer like this. Perhaps it's time to take Australian television to the vet and do the kindest thing?

Monday, 30 January 2017

The Best Words - Trump, Hanson and language.

The rise of Donald Trump like some grotesque balloon in the Thanksgiving Parade and the rise of Pauline Hanson from the grave like some political zombie have a lot to do with words. In particular they have a lot to do with the power of spoken words as opposed to written words.

Written words have shaped the modern world. Prior to Gutenberg, books existed but they were expensive and accessible only to a small section of society. The printing press made books available to almost everyone. This not only changed the way information flowed, it even changed the way people thought.

Prior to printing, ideas were communicated primarily by speech – the priest preached from the pulpit, the master instructed the apprentice, the mayor made public announcements in the village square. Speech had one overriding virtue: it was public. One person can communicate to many people at once: a congregation, a brigade, a classroom, even a large crowd if a PA system is available. In other ways it is, however, limited. Firstly by time. People usually cannot listen to someone talking for more than a couple of hours as anyone who has endured a Speech Night knows. And informal verbal communication, such as the conversations people have in a bar or at a barbecue, is even more limited. These discussions generally consist of short blocks of speech delivered alternately by the participants, often hastily when the topic is controversial.  Also, no one has editorial control over a conversation and the discussion can quickly veer off into other topics as new ideas are introduced.

Books, on the other hand, are not time limited. While a lecture or a speech may last an hour, reading a book can take twenty hours or fifty hours. Also, books are carefully prepared and constructed. The author has control and the flow of ideas is not interrupted. Thus a book can communicate more complex and extensive ideas than a speaker and those ideas can be enhanced by references, quotations, footnotes and illustrations. Most significantly, reading is a silent activity making it a private communication between the author and the reader.

Books thus brought about two major changes to the world.

Firstly, reading created the notion of the personal intellect. One of the strengths of communicating through speech is that everyone gets the same message which is important if there is something everyone needs to know. But it can also however be seen as a limitation, even a form of oppression. With the advent of books, rather than being educated, instructed and informed en masse, individuals could assemble their own library of books and develop their own views of the world. And because books contain more complex ideas and more information than spoken language, an intellect formed by reading is more sophisticated and better informed than one shaped solely by weekly sermons at the church and local gossip. The advent of books not only gave individuals the ability to develop their own personal intellects, it was perhaps the first time that the whole idea of a person having their own view of the world was realised.
(It has also been surmised that reading books was the first private and independent activity that women ever experienced.)

Of course books can include ideas that contradict the prevailing beliefs in the community which is why the Nazis were quick to burn books, knowing they could might cause people to doubt or question the propaganda blaring from the loudspeakers of the Third Reich. But despite bannings and burnings, books continued to be read and gradually eroded the old Medieval culture which was based mainly on verbal communication.

Reading however did not just change the channels and sources of information: it changed the way people thought. Speech is delivered in relatively short sentences that are most devoid of qualifications, exceptions and caveats. A mind formed by solely by speech tends to have simplistic concepts that are regarded as immutable “facts”. Written language, however, with its toolkit of adjectival, adverbial and conditional clauses, complex sentence structure, capacity to cross-reference and pursue the implications of arguments and hypotheses, and ability to lay out discussions two-dimensionally rather than in a simple linear narrative, awakens the reader to the complexity of ideas, the interdependence of concepts and ultimately the tentative and ongoing nature of all intellectual inquiry. Books, unless they are specifically designed not to, smash certainty and with it, prejudice.

The second thing that books did was to create the middle class. From the 16th century onwards, the main feature that distinguished the lower class from the middle class was the ownership of books. The middle class was, essentially, the class that could read, a definition which still holds theoretically today. “White collar” citizens (a classification that did not exist before the invention of books) may earn less than tradespeople, mine workers or construction labourers but being able to read and write extended slabs of text (i.e. get a college degree) defines them as being members of a higher class.

So, more than any other thing, books and the literate, educated middle class that read them created the modern world. The concept of the personal intellect led inevitably to the notion of having a personal and private relationship with God, i.e. Protestantism and writing and publishing over time led to science, economics, political theory and eventually democracy.

Which brings us to Trump and Hanson.

While reading and writing created our world, politicians (or should we say, wise politicians) know that not everyone reads and especially, not everyone reads history, economics or political texts. In fact, very few people read “serious” literature at all. The way to the electorate’s heart is still via spoken language and that must be language that is understood by the majority of people. We still remember people, even educated people, recoiling at Kevin Rudd’s tendency to descend into bureaucratic gobbledygook with such terms as “programmatic specificity.” No one likes a smart-arse.
In contrast, the political power of politicians such as Churchill, Roosevelt, Menzies and Obama lay in their ability to communicate important ideas in language that was understandable yet powerful. But those speakers might be regarded as assuming some basic level of literacy and readership among the population. Churchill, Roosevelt and Menzies were certainly speaking to a population that read. When those politicians spoke, they spoke a language that was informed by written language. They formed sentences such as you might construct on a page – simpler and shorter indeed – but containing elements of imagery, carefully chosen words and rhythms such as you might find in written text.

But what of a world where communication and entertainment is dominated by movies, television, radio and the Internet? What of a world where people get their news, as has been claimed, from Facebook and politicians are interviewed on morning television shows? The Internet is not, in general, a haven for carefully constructed prose. Indeed, the most widely used forum for political discussion on the Internet, Twitter, specifically disallows any serious comment by limiting all communications to 140 characters!!  I can’t put enough exclamation points after that sentence. That is not just a limitation on comment size, it is a limitation on THOUGHT. And this is a channel that is used by Donald Trump and which all politicians are being urged by their minders to master.

And that brings us to Hanson. People will say they agree with Hanson’s policies but they not really policies at all. They are really just the sort of things people say in pubs collected and presented as a political manifesto. Hanson doesn’t even (and this is her strength) even bother to re-word these comments into formal political language: she expresses them in pretty much the same words as they are when uttered around the barbecue.

Similarly, Trump has stolen a considerable number of Republican voters away from the main party by expressing ideas in terms that are essentially non-literate. He speaks in short simple sentences devoid of any complicating dependent clauses: “I will build a wall. And I will get Mexico to pay for it.” No qualifications, amplifications or explanations. Now in office, Trump continues to make these utterances such as “We are going to tax imports from Mexico.” without any further information of how such a taxation scheme might work.  And this seems to have resonated with a considerable number of American voters who see Trump as a good straight, plain speaking antidote to the “political elites” (readers) which Hillary Clinton unfortunately came to represent.

And so we have perhaps returned to a pre-Gutenberg world. The middle class is no longer defined by the number of books they own but by the type of coffee they drink (quarter-strength soy latte with Fair Trade beans), the Prius they drive (I’m saving the environment – no you're not), the width of their flat screen TV (all the better to watch Married At First Sight) and the fact they voted for a black president in 2008 (but not so much in 2012). In a world where even educated Americans speak in clich├ęs, wear slogans on their t-shirts, post sampler-type homilies on Facebook, go on endlessly and narcissistically about loving yourself and living your dream, where emojis replace long complicated blocks of text such as “Love you”, perhaps Trump is actually right when he says he has “the best words”.