Does Not Warrant A Jail Term

In yet another example of the absurd inconsistency in both the statute and application of Australian age of consent laws, a 28 year old woman has been jailed for at least 6 months for ... having sex with a 16 year old boy, which is legal in every state but South Australia and Tasmania.

I’ve written about this topic before, particularly in relation to S73 of the NSW Crimes Act, or its equivalent in other states. This stupid piece of legislation makes it a criminal offence to have sex with a 16 or 17 year old if the person is in a position of some “care or authority”, despite it being perfectly legal in the absence of this element of the relationship. Worse, the offence carries a jail term of up to 8 years, with accompanying registration as a sex offender for life.

It has led to tyrannical perversions of justice, such as the case in which a woman was charged for having sex with a 17 year old male student when she was 22. Worse, the charges were laid 7 years after the fact. It’s disappointing the boy (now man) in the matter didn’t have the chivalry to deny any sexual contact and refuse to testify.

To add an air of farce to the Tasmanian case, the affair was discovered by the boy’s father, who set up cameras to catch ghosts in his house, but instead filmed his live in girlfriend with his son. Corrrrrr-nuuuuu-tttoooo!!!!!

And how's the father's form? Calling the police in? You might hate your girlfriend for betraying you, but how is your son really going to feel about this sordid episode? How will he feel about you as a father, when he is an adult?

As in previous posts, I’m not saying the woman did nothing wrong. The question is whether it benefits society to have a law which can send her to jail and place her on a sex offenders’ register for life (effectively ruining that life), for having sex with a 16 year old boy, an act which would be legal in most Australian jurisdictions.

In this particular case, the woman contributed to her demise (and harsh sentence) by continuing the affair after she had been caught and formally spoken to by police. This is certainly extremely stupid, however I suggest it is evidence of immaturity and emotional problems, rather than predation. There is no evidence of a string of affairs with underage boys.

So, what is the benefit to society in jailing her? Putting her in a cage with abused, violent, mostly drug affected and often mentally ill prisoners; exposing her to a material risk of being bashed.

Will she be “rehabilitated”? Will society be better?

She probably won’t be fucking any 16 year old boys any time soon. But, she could well be largely unemployable and probably a drain on society for the rest of her life.

Is this the outcome most of us want for what is highly likely to be an immature and emotionally unbalanced woman having a sexual relationship with a boy who is a bee’s dick away from the legal age of consent?

Great piece of legislation, pollies and wise discretion in sentencing, Your Honour.

These are the sorts of outcomes we can expect if we allow legislation relating to social interaction to be framed by hypocritical, conservative religious people and frightened, middle class mothers.

This particular travesty occurred in Tasmania, but that doesn’t mean other Australian states don’t need to make changes to their own laws. I can well imagine a situation in say, NSW or Queensland whereby the boy was deemed to be “under the special care” of the woman, because she was his father’s de facto partner. The police (with prompting from a slighted lover) and the DPP may well have chosen to run such a charge as a test case.

The problem is that in every state in Australia, the age of consent is a “cliff” style law, which not only varies between jurisdictions, but is essentially binary.

The latter is the worse injustice. Have sex with a 15, 16 (or even 17) year old on the day before their birthday and potentially go to jail, then be registered for life as a sex offender. Do it 24 hours later without sanction. Other than an unsatisfactory ambit of discretion for the judge, there is no mechanism for distinction between predation and a consenting act between two parties of similar emotional maturity, albeit one materially older than the other.

Most people would assume they would never be in such a situation and they would mostly be correct. However, that is not a reason to ignore inconsistencies in our law.

Firstly, the injustice in such poorly framed legislation harms society by needlessly rendering some people unproductive. Secondly, acquiescence emboldens the minority who want to make more of such falsely moralistic laws, imposing their agenda on the rest of us. That is how each of us loses a little liberty each time unjust laws are enacted or enforced.

She IS a Collingwood Supporter

Sportsmen should be able to play the game without verbal “low blows” from either their opposition or spectators. That’s not confined to racist taunts. Sportsmen should not have to put up with some fat, unfit cunt in the crowd calling out things like “Ya fuckin’ poofter!”, “You’re fucking hopeless, you shouldn’t even be on the park”, “I fucked your sister! She’s a log!” or any other of the cornucopia of sledges I’ve heard from the sidelines over the years.

Having said that, there’s a reasonable limit to the response. I don’t see anything wrong with the player pointing out to the offender that they are a nobody, who nobody will ever even watch for free. But going off the field in response to taunts, racist or otherwise smacks of prima donna antics.

Adam Goodes’ handling being called an “ape” by 13 year old Collingwood fan Julia Surowka was certainly effective, if a little high handed, taking it upon himself to demand she be ejected from the ground as he did. Some letters in this week’s papers thought he made a mountain out of a molehill and were it an isolated incident, they’d be right. But he and other players regularly cop a barrage of very low brow sledging from the sidelines. I can understand a player turning around and saying: “Fuck this and fuck you! I’ve had an absolute gutful of this shit!”

He’s 100% right to say, in effect: “I come here to play footy. I do my best and give fans their money’s worth and this is what I cop in return? I’ve had enough and so have a lot of other people.” After he’d made his point and extracted an apology, Goodes didn’t carry it on. In fact, he publicly announced that the girl had apologized personally and asked people to support her.

The girl did get singled out for attention and she is only 13. She claimed that she didn't realise calling a black man an ape would be construed as racist. I find that a bit of a stretch, but it's possibly true. I've called big, dumb, white guys apes before.

Nasty, dumb abuse of the opposition players to unsettle them is the behaviour of a peasant. That’s not the same as having a bit of a laugh in their direction or making a wry observation about the standard of their performance.

There’s a world of difference between a clever, cutting sledge such as Shane Warne’s challenge to Daryl Cullinan: “Daryl, I’m going to send you right back to that psychiatrist’s couch” and a moronic spray like “You’re an ape” or “You black ape”.

There’s also a world of difference between repeated, cold sledging and for example, a bowler yelling in the heat of the moment: “You fuckin’ arsey cunt” at a batsman after his third edge through or over slips, as Fingerton may have occasionally done.

Some readers may recall a spectator releasing a pig onto the field at the SCG during the 1982-83 Ashes tour. It had “Eddie” painted on it, as a taunt to portly English spinner Eddie Hemmings. Maybe it was potentially hurtful, but it was extremely funny at the time, which is what ameliorated any insult. Hemmings took it good spirit and gained a bit of respect as a result.

What if someone released a monkey onto the field with Goodes or Symonds or Balotelli written on it? You fat pig! You black monkey! Not the same. Weight is something you can actually control, unlike skin colour. The latter has the added dimension of statements of racial inferiority. Even if the sledger believes what they are saying as ideology, or even that it is backed by scientific evidence, a sporting field is not the place to express this sort of political statement.

Given his behaviour toward Andrew Symonds during India’s 2007-08 tour of Australia, it would have been a valid statement had someone released a monkey onto the field with Harbhajan written on it. But that’s because it’s having a go at Harbhajan for being a liar and a hypocrite. It’s also pointing out the irony of him calling a fellow brown person a monkey, something which he quite bewilderingly was unable to grasp.

That’s the difference: there are some players who are genuine dickheads and bring crowd and opposition taunting on themselves. I think that’s fair enough, as long as the insults are specifically targeted at whatever it is about the player’s behaviour that pisses people off so much: arrogance, hypocrisy, lack of heart, cheating, being a general grub.

There are some sports and some teams whose fans have a reputation for low sledging, even violence. There is often a cultural element to the behavioural differences.

Where are flares most likely to be thrown onto the field? At a soccer match where at least one of the teams has lots of wogs as supporters.

Who are the football clubs with the worst behaved supporters in Australia? The ones whose supporters are either the biggest bogans eg. Collingwood, or have a strongly ethnic element from an aggressive culture eg. the Canterbury Bulldogs.

There won’t be any less racism in the minds of the home crowd at Chatswood Oval as the North Shore gentry watch Gordon play Wests or Parramatta. Many will be quietly pigeonholing the opposition’s multitude of coconuts as big and tough, but a disorganized rabble due to their low IQs, probably kept out of prison thanks to organized sport. However, more than knowing better than to call out something derogatory, they genuinely have no urge to do so. Perhaps the odd comment may be passed in select company over a quiet drink in the club afterward.

You may think this casual snobbery is every bit as bad as a bogan Collingwood supporter screaming racist epithets, but it’s not. The difference is in knowing how to behave. People will always hold any number of biased and insulting views. Some may even be to some extent justified. It’s impossible to change this by force, but what society can expect is an understanding of when such views can safely be expressed and when they should be kept to oneself.

It’s reasonable for players to complain about low acts of abuse from spectators or the opposition and have an expectation of an effective sanction. What should not happen is an acquiescence by administrators to ethnic lobbies or commentators falling over themselves to demonstrate their PC credentials, such as the Herald Sun’s Mark Robinson.

No, matches should not be abandoned because of racist taunts. Calling someone a monkey or a black cunt does not warrant a 10 week suspension (you get less for a dangerous spear tackle, which has the potential to maim for life). To call for stadium closures ie. playing to an empty crowd because of repeated, racist abuse is ridiculous excess.

Why is racism singled out?

Because it’s the new “black” amongst the white, middle class left.

Harassing somebody about their race is not worse than harassing them about a multitude of other characteristics which they cannot control. If sporting authorities are going to be serious about racist sledging, they should be serious about all low sledging, but with appropriately severe sanctions.

Being called a black cunt, or having a banana thrown at you is not going to ruin your life. It is not worse than an opposition player delivering repetitive, withering barrages about someone’s wife, sister, religion or IQ.

The referee / umpire is there to make a judgment on when on field “banter” has gone too far. They may put a player on report, issue a warning, an immediate sin binning, or in some cases, a sending off. Security are there to police unacceptable spectator behaviour. The rest of the crowd should help by letting a dickhead know they are heavily outnumbered. If an entire section of the crowd is repeatedly causing trouble, then maybe authorities can consider collective penalties on fans and the club.

Many black or brown people would be irate at the above assertions, with charges that I couldn’t possibly know what I’m talking about and what they have to put up with.

The latter is to a significant extent true, however I’m saying that it is not as relevant as they would demand it be. Black people should not get to control what other people can and can’t say to them, determine the level of offence and the sanction. Kevin Prince-Boateng can call for players who make racist remarks to never be allowed to play for the club again, but why should any white people give his self serving position credibility by considering it?

Here’s a dose of reality:

Racism might be top of your agenda, but it’s not near the top of mine, or most other white people’s. Nor is it for other people to tell me what should be most important to me. I see sin binning for racist sledging as fair, but not a lifetime, or even 10 week ban. If you’ve been called a black cunt or a monkey in the heat of the moment, it’s probably not the first time and it almost certainly won’t be the last.

Most people are to some extent not only racist, but bigoted in many aspects … and not just white people. Many Asians refer to black people as monkeys (without a glimmer of understanding of the irony involved). Many Arabs consider black people to be inferior. Arab enslavement of black Africans only ceased when the British and French occupied the former Ottoman Empire after World War I.

Added to this, many non-white people play the race card when it suits them. Aboriginals cannot credibly say “Fuck you, you fucking white trash” to an air hostess, then pretend they didn’t and sue for racial discrimination when they are kicked off the plane.

Is that behaviour going to ameliorate racism or entrench it?

Racist views are not going to go away any time soon. If sporting bodies want to effectively combat racism in sport, draconian penalties will not achieve this.

I suggest they will have the opposite effect. By turning people away from a game they see as now pandering to activists with an agenda they don’t support, blame for ruining the game will be sheeted onto the very people who want to keep playing it, without the racist sledging.

More sensible would be to try and remove the identity politics from sport and punish a broad category of nasty, low sledging.

On a final note, for those who value liberty, there is a particularly disturbing element to the reaction to the Adam Goodes incident and it’s not that a 13 year old bogan made a racist remark.

It’s the heavy handed response. Either warn her, or eject her from the ground and be done with it. Being 13, her family would have had to go with her. The collective punishment would have been worth something.

Instead, MCG security told the girl’s parents to remain in their seats while they took her away and the police questioned her for two hours. Being (it seems) poorly educated, the parents acquiesced. 

This is the typical type of crap security personnel often try to pull: concocting a bogus procedure to pretend they are not utter turds who are not even good enough to make the police force.

The parents should have told security very clearly that they would not be allowed to take a 13 year old girl anywhere without their permission and without them being present. Further, if any security guard touched her, they would see them charged with assaulting an underage girl.

That’s the only way to deal with scumbag security guards when they try to assert an authority which exists only inside their heads: remain calm and make it very clear they will end up with a worse legal outcome than you.

Additionally, the parents should have told their daughter to say nothing to the police and make it absolutely clear to those officers that the parents (or other adult family) must be present at all times while their daughter is being questioned, as is any minor’s right.

Even worse is Eddie Maguire’s statement:

"We've organised counselling services ... for her, her friends and family”.

I can see where this is going: down the UK path. Only when the accused has issued a pro forma, self-excoriating apology and satisfied some social engineering bureaucrat that they have acquiesced to the “correct” ideology, only then will they be allowed to re-enter society.

Update: Eddie McGuire subsequently joking on radio about getting Adam Goodes to promote King Kong, The Musical is more a result of a dumb person's attempt at irony than outright racism. It was certainly insensitive, but what do you expect from a dumb shit like Eddie McGuire?

Miranda Devine is right in her charge of rank hypocrisy, given his role in leading the pious in their public chastisement of a poorly educated 13 year old girl for doing much the same thing.

I'll Shoot Myself In Public ... That Will Stop Those Poofs Getting Married

Allowing homosexuals to marry will destroy civilization as we know it. I cannot bear to live in such a world. In protest, I’ll go to the biggest church I can find and shoot myself on the altar.

That’ll do the trick. My sacrifice will cause such an upwelling of support from the “silent majority” that a new kingdom of godly righteousness will be established and those gays and their filth will be consigned to the darkness from whence they came.

There are societies in which self immolation as a form of political protest is not condemned as lunacy and can even be successful. For example, the street vendor Mohammed Bouazizi set himself alight and sparked the protests which eventually led to the overthrow of the Tunisian government. Some are less successful, such as the ongoing campaign in Tibet.

The societies in which such practice achieves some measure of legitimacy tend to be repressive, religious and place little importance on individual rights and liberty. Juxtaposed with a brutal regime’s remorselessness (and even pleasure) in harming its citizens while hoarding luxuries, a certain nobility is achieved by a shocking, ritual self sacrifice which eschews harming others, as opposed to a suicide bombing.

However, this is not the case in prosperous, largely open societies. It is more common to kill your literal enemies, or random representatives thereof, then kill yourself.

In societies without a strong subculture of martyrdom, only extremists or the emotionally unhinged choose ritual, public suicide as a method of making political statements. The shock value of political suicides in Western countries does often initially attract supporters to their cause, but such support often fades as issues of practical policy confront ideology.

Political suicide in open societies tends to alienate far more support than it gains, obscuring anything worthwhile that a complex, but troubled person may have said or done in their lives. So, yes, Marine Le Pen, Venner’s suicide was a political act, but in a Western country, an ultimately futile one.

Now that he has rendered himself a lunatic and idiot in the eyes of the overwhelming majority of the population, Dominique Venner will likely only be remembered by most as the old, anti gay, reactionary who shot himself in Notre Dame Cathedral. His opinions on other matters will be wasted on the small fraction of the already converted. His reasonable warnings about Islamic immigration, their explicit refusal to assimilate and the left’s steadfast support of this destructive separatism will be easily painted with charges of right wing extremism, as will his decrying of the modern left’s program of destruction of pride in European cultural heritage. Worse, more moderate people who share such views are more easily dishonestly tarred with the extremist brush by the leftists who wish to stifle debate on such topics.

This is the problem when people with complex and often contradictory positions do acts which allow the media to use the act as a caricature of the person.

Having said that, I don’t think acts of political suicide such as Dominique Venner’s should necessarily be discouraged. As well as efficiently removing members of the opposition, such self culling enhances the position of moderate libertarians.

Perhaps fascists, socialists and general dickheads alike could make noble gestures of ritual self-immolation. Fred Nile could shoot himself in his own church. The Shooters could dress up as elephants and shoot themselves. Sarah Hanson-Young could sew her lips together and starve herself to death in support of the asylum seekers. Lee Rhiannon could hang herself in her yurt with a hemp rope (or maybe one made with hair from her armpits) in protest against, well, just about anything.

I would look forward to scouring the daily press for the latest activist to top themselves in some novel public statement.

It's Time To Scrap Parliamentary Pairing

Why is it necessary in a modern parliament for each member to be present in the chamber for their vote to count?

Why should an MP who is absent due to personal illness or family reasons, or even work related travel not simply be able to register their vote by proxy? This could be done either in writing, or via a secure email login, much the same as shareholder votes on company resolutions are now conducted.

In fact, absent MPs could use exactly the method employed in deciding corporate resolutions: appoint a proxy to vote either according to pre-arranged instructions or as the proxy decides.

Instead, we maintain the absurd anachronism of the “pairing” system, whereby for each MP who is absent for the vote, a member of the opposing party agrees by convention to abstain from voting. As we’ve recently seen, this arrangement can lead to farce or abuse and disingenuous point scoring, as in the current matter involving Labor MP Michelle Rowland.

The pairing system can only possibly work where parliament is dominated by two parties, which vote along party lines. Most MPs in Australia vote along party lines anyway, so what is the difference in outcome between proxies and pairing?

What happens when independents are absent, or in the Senate if one of the Greens is absent? What if we end up with a parliament similar in constitution to the UK’s, with three large party blocks, or more, as in Israel?

Do we rely on the formation of a governing coalition, which pairs with a de facto opposition?

The whole system is ridiculous and needs to be immediately scrapped in favour of members’ proxy votes.

MPs are elected to represent their constituencies. They can adequately do this without needing sit in a special chair.

Update: Ministers certainly should not be drunk in the public areas of parliament. However, NSW Finance Minister Greg Pearce would not be facing calls for his sacking if proxies were allowed for parliamentary votes, although it now appears that he should be sacked anyway (and possibly charged) for making false claims on his parliamentary expsense account.

The Greens have no credibility lecturing people on drinking or any other such behaviour. Who is going to accept being preached at by some soft shit like David Shoebitch or John Kaye, an oily spiv like Jamie Parker or a boot faced old harpie like Lee Rhiannon? Out of these four, she's probably the only one who could manage more than a couple of drinks without tottering about and falling over on the carpet.

As for John Kaye's comment that the public expect their laws to be made by people who are 100% sober: we also expect they will be made by people who are 100% sane.

The Hubris Of Conscience Votes

Periodically, the strength of public debate requires governments to legislate on divisive social issues. Often, calls to allow a “conscience vote” ensue. Added to that issue which is never quite laid to rest, abortion, and the more recent euthanasia, we now have same sex marriage.

These are salient examples because the naysayers generally come from a religious standpoint. Some are open about their motivations. Some attempt to hide them with flimsy denials, such as “It’s not about religion; I believe life begins at conception and every life is precious” or “I believe marriage is for a man and a woman to raise a family”.

The latter really do believe these statements, however their arguments are clouds. Such positions almost always derive from religious beliefs.

It’s usually social issues with religious dimensions which lead to conscience votes, because the religious elements divide both major parties. The United States is the only Protestant, Western nation which is not strongly secular and religious motivations are explicit in political debate. In Australia, we tend to keep religion out of mainstream politics, however it’s religion and its conservatism which principally drives parliamentary opposition to legalisation of abortion, euthanasia, gay marriage and other “unholy” acts. It’s a pity the true motivations of the demurring MPs are not more honestly discussed.

In a secular polity, it is not the role of the state ie. the parliament, the executive and thejudiciary, to decide on issues of purely social philosophy. The state should not decide when an independent life exists or the nature of marriage any more than it should debate post-structuralism (although I’d watch Order In The House if Barnaby Joyce or Bob Katter had a go at the latter).

In an open society, the morality and allowability of abortion and euthanasia or the nature and meaning of marriage are matters for the citizens to decide via public debate. Politicians are installed to enact the wishes of the citizens they serve, not impose their own philosophical positions on the rest of us, under the guise of “moral leadership” via “conscience” votes.

This does not mean that each politician should always vote in line with the wishes of the majority of their constituency. If a position on a certain issue derives from a philosophical or political principle on which their party was elected, they should vote accordingly and explain why.

For example, suppose a politician is elected on a platform of true Liberalism. A fundamental tenet of Liberal political philosophy is the non-interference of the state in purely social issues or ones of personal morality, from which derives secularism.

It then follows that for a Liberal, the only role of the state in euthanasia is to ensure the death is genuinely voluntary, assisted or otherwise. That is because someone’s body and life are their personal property and they may do with them as they please, provided they are of sound mind and do not cause others undue distress.

Likewise, for a Liberal, given lack of evidence for societal harm, the only role of the state in marriage is as an interpreter and enforcer of contracts. It is up to individuals deemed capable of informed consent (in this case, adults) to decide on the nature of the contract, provided said contract is demonstrably absent of duress.

Consequently, any Liberal politician should vote in favour of these proposals on the basis of the philosophy on which they sought election. If they were against these proposals, then they should have run as a conservative.

Politicians who do not have clear political positions on a particular issue, perhaps because they were elected as independents or members of an interest group eg. Shooters should canvas the wishes of their constituency and vote accordingly.

Where all three elements of the state can add value and show leadership is in raising and perhaps helping to solve inconsistencies in the beliefs of the general public, particularly where such beliefs are contradicted by evidence.

Thus, in the case of same sex marriage, the state does have a role to play in gathering, interpreting and disseminating research into claims that the practice will harm society, especially children. If there is no evidence supporting such claims, then a liberal state should recede from citizens’ lives to a purely administrative function.

For politicians in an open, democratic society to believe they are in parliament to exercise their “conscience” is an egregious vanity.

You were not elected to exercise your personal conscience; rather to enact the wishes of your constituents, consistent with the underlying principles which your party espouses. If your views happen to match your constituency, lucky you. If they don’t, either follow your constituency’s instructions, or resign.

Suppose a political party’s supporters are split, say 60/40 on a particular social issue. If a position on this issue does not derive naturally from the party’s underlying principles, then perhaps it could arrange for its parliamentary members who do not agree with the proposal to be among the 40% voting against it. But that is as much of their personal “morality” as politicians should be allowed to exercise in government.

Throw Out This Speculative Suit And Award Costs To The Defendant

If our legal system does not place a strong emphasis on common sense and personal responsibility for basic safety, expect to start paying $5 for a lukewarm cup of coffee.

Because that’s an example of what will happen if the stupid bitch who is suing McDonalds because she spilt a hot cup of coffee in her lap actually wins her case.

Suppose Jessica Wishart is successful in her claim, not against McDonalds by the way, but against the franchisees, Robert and Sonya Vigors who run the Renmark, SA restaurant. How will public liability insurers react?

By massive increases to premiums and stricter terms and conditions. That will flow through to consumers, not just in terms of increased prices, but restrictions on the nature of goods and services provided.

It won’t be confined to servers of hot beverages either. This case will set a precedent, where on a flimsy pretext of insecure packaging or lack of warning labels, a supplier of goods will be held responsible for any mishandling after purchase, regardless of common sense. Insurers will use the case as an excuse to raise public liability premiums across the board and seek to limit their liability by forcing adherence to stricter conditions. It’s us consumers who will suffer. Only the lawyers will benefit.

Morry Bailes, managing partner of Adelaide law firm Tindall Gask Bentley said:

"The mere fact that an injury was occasioned by a hot cup of coffee should not lead to a view that a claim is unjustified."

Maybe not if someone threw it on you. But definitely if you spilt it on yourself.

Would Tindall Gask Bentley perhaps be the law firm representing Jessica Wishart?

Jessica Wishart’s statement of claim says:

"While sitting in the front passenger seat (of a car) she experienced a burning sensation to the fingers of her right hand, which was holding the cup"

What could that possibly be?

"Due to the intense heat emanating from the cup and the failure of (McDonald's) to properly secure the plastic lid, hot coffee spilled on to her thighs."

No, due to her own stupidity in not putting the cup down somewhere it wouldn’t spill.

Her argument is probably along the lines of: McDonalds failed to put the lid on adequately, so when she involuntarily squeezed, shook or rotated the cup, the coffee spilled. But why would you believe this? If a takeaway cup is squeezed or has sufficient percussive force applied, its lid will come off. Isn't the most likely explanation that Jessica Wishart caused the lid to lift from part of the cup rim and the coffee to spill through her own, negligent action?

Additionally, the claim that McDonalds did not put the lid on correctly can only be speculation, since had Jessica Wishart noticed this was the case, why didn't she correct the problem herself, or at least put the cup down? 

Coffee is served hot, you dumb bitch. That was the “burning sensation to your fingers”. It’s hot because it’s made with boiling water. Sometimes it’s hotter than we’d like. Thus, care is required when handling a paper cup full of it.

We should not allow this American style bullshit to take root in Australia.

The courts can stop it right now: find for the defendants (who are not a large corporation, but small business owners) and award costs against the plaintiff. Then how many speculative lawsuits of a similar nature will subsequently be brought?

Gay Marriage And The Role Of The State

Liberalism necessarily implies secularism. In a secular polity, the state, consisting of parliament, the judiciary and the executive, does not concern itself with questions of purely social philosophy¹. These are for citizens to decide, through reasoned, public debate and if necessary, the ballot box.

One such issue is the nature and meaning of marriage. There have been calls for MPs to be “allowed” a conscience vote on whether the right to legally marry should be extended to same sex couples, effectively allowing a set of politicians to impose their personal views on the community. The logic of this is wrong.

In an open, liberal society, it is not the role of MPs to decide issues such as same sex marriage on behalf of the populace. Their role is to gauge the opinion of their constituency and to vote accordingly.

The role of a liberal state in social matters is threefold:

1.      To formalise, if necessary, the wishes of its citizens.

2.      To help decide on issues of logic, in cases where the wishes of its citizens are contradictory.

3.      To interpret and enforce contracts.

Which citizens are able to enter into which contracts is derivable from a society’s core principles, which are established by a process of debate and agreement between its citizens.

Firstly, citizens agree on who can decide on their society’s core principles and how that is to be done. For example, children may not be deemed capable of understanding the issues. Mentally incompetent adults may also be excluded. Next, the core principles are decided. These, together with the decision making process itself, will form one of the society’s fundamental documents: its constitution.

It is possible that an important question such as the nature and meaning of marriage would be seen as sufficiently fundamental to be included in a society’s constitution. If this were so, the role of the state would depend on the nature and drafting of the relevant section of the constitution.

If the constitution formally laid out the meaning of marriage, who could and couldn’t marry and in what circumstances, the judiciary would decide that a referendum is required to change the marriage law and parliament would facilitate this referendum if evidence of sufficient support for a change to the law was apparent.

However, if the constitution simply allowed parliament the right to make laws in respect of marriage, the role of the state is only to draft and enact the laws agreed upon by its citizens.

In Australia, the latter is the case. Section 51 (xxi) & (xxii) of our constitution allow federal parliament to make laws in respect of marriage and divorce. There is such a law: the federal Marriage Act (1961). Section 5 states that

"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

It’s pretty clear. The paragraph was actually introduced as an amendment by the Howard government in 2004, with support from the ALP.

However, the situation is a little more complicated than it looks, because the states can also make marriage laws. So the states could just pass their own same sex marriage laws, right?

No. Not so simple. Section 109 of the Australian Constitution says that where federal and state laws are inconsistent, the federal law overrides the state law. BUT, as UNSW constitutional law professor, George Williams points out, the Howard government’s 2004 amendment possibly has an unintended consequence: the federal law limits the definition of marriage to a union of a man and a woman.

Perhaps then this federal law can only override state laws in respect of formal marriages between a man and a woman. The states could be free to make and recognise same sex unions by calling them something slightly different, but giving same sex couples equal rights and obligations as opposite sex couples.

Is this the path we really want to go down? An important social issue descending into a lawyers’ picnic, with “rights” obtained by casuistry and legal legerdemain, with the possibility they may be overturned by future parliaments?

What is needed is a clear, public debate as to whether same sex or even plural marriage follows as a corollary of two of a liberal society’s most fundamental principles: liberty and freedom of association. Or do a significant majority of us believe that allowing homosexuals (or transsexuals) to marry is so detrimental to other aspects of society that banning it must override liberty?

Some people do believe this.

There are stupid assertions, such as South Australian Senator Cory Bernardi saying that the devaluation of the institution by same sex marriage could eventually lead to people marrying animals.

The reason why it couldn’t is obvious: animals cannot give informed consent and therefore cannot enter into contracts. It is disappointing that no-one in government or the media picked this point straight away. Cory Bernardi is a moron. How hard could it possibly be to shoot down a moron’s argument? Apparently not that easy for our genius MPs.

Any RTBB readers will know that it is not homosexuality which leads to marrying animals, but the regrowing of teeth.

A common, though false counter argument is that allowing same sex marriage would give gay couples equal rights to adopt children or obtain custody in divorces, presumably endangering them in some way. But gay couples already have children. This has more or less openly been the case in Western society for at least two generations. Thus, there has been sufficient time for longitudinal studies. I am aware of no evidence suggesting children raised by gay parents have statistically worse outcomes on any measure of achievement or social function. Children of gay parents do not appear to have lower outcomes in educational attainment, earnings as adults, criminal behaviour, drug addiction, depression or suicide. Wikipedia has a good summary of meta-analyses of research in this area, with numerous citations.

There are meta-analyses which purport to contradict the assertions above, generally funded by right wing, Christian groups in the USA. It’s the American Academy of Pediatrics and the American Psychological Association who are probably biased though, being full of left wing doctors.

Additionally, suppose that same sex marriage continued to be banned. This would not prevent homosexuals from having children: it would only ensure a bias against them in custody battles and adoption applications. What of the children of gay men born to surrogates? Or the children of lesbians conceived via sperm donors?

Should a state which bans gay marriage force abortions? Removal of these children from their parents? Prosecution of the parents for surrogacy? Not a liberal one.

If not, then has the state abrogated its duty to a cohort of “at risk” children?

Apparently, the citizens of liberal democracies do not believe so, since no such laws exist. What then, is the problem with legally recognising two people’s assertion that their relationship has progressed beyond simple cohabitation, regardless of their gender?

Some opponents of same sex marriage proffer that gays marrying will devalue the institution of marriage. The opposite is true.

Marriage is a great deal more than simply living together and seeing how things go, or even living together for a long period of time (without producing children). It is a ceremony which represents more than an extra commitment: it is a public statement of a transition within one’s own life and within society.

What many homosexuals want is what marriage represents for heterosexual couples in a modern, liberal society: the power to say for yourselves when your relationship has progressed to a level of mutual commitment beyond that of sharing a dwelling and a bed. They don’t want that distinction made by a politician, judge or public servant.

Disallowing gay marriage will cause more young people to treat the institution as anachronistic and irrelevant. I suggest this will lead to lower rates of marriage in general, as younger generations view it as an artefact of their parents’ reactionary generation.

In the break-up of a relationship (hetero or homosexual), conflict often ensues as to the entitlements and duties of each partner. How then, will the seriousness of the relationship be determined if there are no children involved? By a judge? A committee of progressives? Who will set the criteria?

Better, I suggest, to allow those involved a say in the matter, through a formal statement as to the nature of their commitment.

There have been suggestions that by not recognising same sex marriage, Australia may run into some problems when gay couples married in foreign jurisdictions emigrate. New Zealand ratifying same sex marriage was posited as an example.  

That’s not the case. Part of the Marriage Amendment Act 2004 is the addition of S88EA to the federal Marriage Act, explicitly stating that foreign same sex unions are not recognised in Australia. It would require a highly activist High Court ruling to overturn Australia’s sovereignty (which doesn’t mean this could not occur).

I’ve provided a lot of argument here in favour of allowing same sex marriage. In fact, I believe plural marriage should also be legal.

It is fundamentally a question of liberty and the role of the state in an open, liberal society. Behaviour should be proscribed, not prescribed. If there is no conclusive evidence that certain actions are harmful to other members of society and that the harm could not be avoided by prudent action, those actions should not be proscribed. Any actions not proscribed are legal.

If the majority, or even a significant minority of citizens believe that same sex marriage is not harmful and there is no scientific evidence contradicting this belief, then it is the duty of elected politicians to formalise the views of their constituency through legislation in its favour.

I said even a significant minority because if there is no evidence of harm, the principles of liberty and equality should take precedence. The role of the state should then be simply to act as an interpreter and enforcer of contracts between those deemed capable of informed consent. In the case of marriage, that is adults who are not mentally impaired. It is not the role of a liberal state to make judgements on the morality or appropriateness of competent adults entering into a contract, regardless of their gender.

If certain, elected political groups represent a constituency which opposes same sex marriage, then their parliamentary representatives should vote against it. One can criticise the political position, but not the vote.

If a majority of citizens support the political principles underlying same sex marriage, the minority political groups can have their vote and lose.

What is important is that politicians ensure that the wishes of their constituencies are enacted. Their personal conscience is not relevant; they were not elected to serve it.

¹ By purely social philosophy, I mean principally non-economic matters, such as freedom of speech, enfranchisement, homosexuality, drug use, euthanasia and the nature of marriage. All of these issues can have economic effects, however their principal nature is clearly social.

A liberal state should concern itself with philosophical questions of a socioeconomic nature, such as the distribution of wealth, because the scientific method can produce evidence to guide policy. For example, it may be the case that some wealth distributions or taxation systems are demonstrably likely to decrease overall wealth. In this event, they should be rejected as policy and the public educated as to why.

Let's Not Follow The UK And Class Bigotry As An Aggravating Factor

Someone from deep in the lower tail of the privileged ie. white socioeconomic group goes off on a racist rant on public transport. How should an open society deal with such behaviour?

I’m using the term “privileged” ironically here. Being white confers a range of privileges in Western society, but the advantage of skin colour is significantly outweighed by parental education and financial resources. Does the white son of unemployed, housing commission tenants at Macquarie Fields or Broadmeadows have a better chance of success in life than the daughter of tertiary educated, Asian, Arab or black parents living in Killara or Camberwell?

In Australia, we’ve had a few recent headlines about bogans going off on racist tirades on public transport. Now there has been another incident, this time on a Melbourne train. You may also recall the Emma West incident in London in late 2011.

They have all been by people toward the bottom of the pile in their perceived, large scale social group, who are clearly threatened by immigrants’ success and angry they have not received their “entitlements”. While they may feel justified in their assertion that citizens of British ancestry should have more of a say than other immigrants in how England or Australia is run, they are incapable of articulating anything other than the visceral rage their feelings generate.

Is it necessary or constructive to lay anything beyond offensive behaviour charges against people who yell “This is my fucking country”, “Do you fucking speak English?’ or “None of you are fucking English. Get back to your own country. Sort your own countries, don't come and do mine.”?

The opinions of poorly educated people with impotent social connections and little access to economic resources matter little until they decide to let off a (usually intoxicated) racist tirade in public. Suddenly, their actions are treated as if they have the potential to cause civil war, or at least a “grave threat to public order”.

The media rush to the thesaurus and fall over themselves to exhibit their PC credentials, describing the rant as “vile” and “disturbing”.

No it’s not: it’s just one of society’s dregs going off at some people who aren’t white. ‘Vile’ is a man raping a six year old. ‘Disturbing’ would be a party calling for the deportation of all foreigners getting 10% of the vote.

The Victorian woman was arrested and charged with using obscene language and riotous behaviour in a public place, under S17.1(c) and (d) of the Victorian Summary Offences Act. Usually, Section 17.1(c) (offensive behaviour) suffices. 17.1(d) (riotous behaviour) tends to be added when there is conduct which, as Victorian Legal Aid puts it, “frightens a member of the public and makes them fear that some breach of the peace is likely to occur”.

Was a 37 year old woman racially abusing two fit, young men likely to frighten them, or just anger them? If the vast majority of their fellow commuters were supportive, why would they have been frightened?

Despite a prevalent internal culture of racist views, the police were quite comfortable laying multiple charges. That’s because the police are almost cynically bureaucratic and driven by arse covering. Given the current political winds, they would happily lay every charge on the statute if they believed that would protect them from complaints of bias by various “community” groups or the Human Rights and Equal Opportunity Commission.

I’m not saying no charges should have been laid; just that 17.1(c) and a fine or better, a fine and community service should suffice.

In last year's Melbourne bus incident, there is clearly a case for an extra 17.1(d) charge against the man who smashed the bus window, because members of the public certainly had good reason to fear for their safety. The police could add a S9.1(c) charge for damaging public property. The three charges together should lead to a hefty fine and many hours of community service.

What we should not do is follow the UK path of declaring significant circumstances of aggravation in any harassment or insulting behaviour with racist overtones. The difference between telling someone “fuck off, you cunt” and “fuck off back to your own country, you don’t belong here, you black cunt” should not be a fine (or not even that) versus a jail term, such as what has befallen Emma West in Britain.

Does anyone believe such a distinction will be made in the laying of charges against black, Asian or Arab people? There is evidence the contrary is occurring in Britain.

All summary offences acts have some section which deals with offensive, indecent or threatening behaviour. In a liberal society, it is reasonable the law should contain such proscriptions, since it is citizens themselves who by consensus decide what constitutes “offensive, indecent or threatening behaviour”.

In a liberal society, people are also entitled to hold and express opinions which are racist, sexist, homophobic, or any other flavour of bigotry. If they express such opinions in a threatening manner, laced with abuse and other offensive language, then they should be charged under S17.1(c) or its equivalent, for the offensive and threatening behaviour, not for expressing their opinions, nor for the particular opinions expressed.

If someone says ”you’re not British if you’re black” or “Asians can never be Australian”, I don’t agree with them, however they should have the right to open the subject up for debate, even if heavily outnumbered. If we can’t police thought, why should we police voicing it?

The problem with adding circumstances of aggravation to summary offences, which usually involve intemperate speech or low level aggressive behaviour, is that it tends to be done by statute, but exercised selectively. The statute ends up looking like a quilt, with a patch for every minority or “oppressed” group and its grievance: cultural minorities, women, homosexuals, the disabled, adherents of foreign religions, anyone who isn’t white. The application of circumstances of aggravation is then selective and hypocritical: Muslims are rarely charged with making inflammatory statements against Jews or women, black people and Arabs never face additional charges for attacking white people.

That’s because these laws are a creation of the academic left, many of whom are ashamed of their culture’s success and power, despite being quite happy to reap its benefits via their university educations, public service salaries and middle class lifestyles. They are more concerned with attacking opponents within their ethnic group than defending against the enemy without.

If we allow these types of aggravating circumstances for “public order offences” in Australia, the left and its “oppressed” allies will hijack the law, as they have in Europe. Immigrants who are quite reasonably criticised for religious and other culturally derived practices and views will claim “hate speech” to stifle reasonable debate on assimilation. Lefties will do more than roll over and give in to them: they will join them in their fight to undermine our liberal social structures.

The quid pro quo for freedom of expression, including bigoted views is twofold. Firstly, there should be some form of offensive or threatening behaviour summary offence. Secondly, the right to self defence should extend to using reasonable force to defend oneself and others against ANY crime, including summary offences such as offensive or threatening behaviour. That includes the right to force a nuisance off a bus or train or out of a premises, physically if necessary.

Nice Punch, Cowboy! Don't Apologise For It

Men need to stop cringing and stop apologizing for proportionate acts of violence done in defence of themselves or others, or to remove a nuisance or troublemaker.

I’m not talking about flattening or beating the shit out of somebody manifestly less physically capable, or putting the boot in when someone is on the ground. I mean doing just enough to take control of a situation and your personal space and further, doing so with minimal disruption to your planned activities.

What prompted this post is Gold Coast busker David Mulder, the Silver Cowboy delivering a single punch to the jaw of a drunken twit who was sticking a wet finger in his ear and rubbing his face. Nice punch, too.

The guy was being a complete dickhead and even admitted later that he regretted heckling Mulder and probably asked for it. The amount of support for David Mulder shows a large percentage of the general public believe there are circumstances in which people deserve to get hit.

Of course, elements of our nanny state bureaucracy and other assorted oxygen thieves made it their business to condemn the violence and an “official investigation” was launched.

Probably in order to keep his job, David Mulder had to issue the standard mea culpa from the nanny state’s liturgy: “Not proud of myself … don’t condone my actions … we were both in the wrong … violence is never vindicated.”

Yes, sometimes it is. If not, why are the police and most security guards armed? And no, we shouldn’t have to have our day / evening ruined by waiting for the police to arrive and deal with the situation.

Thankfully, common sense prevailed in this case and the matter went no further. It could easily have done so, had the heckler wanted to pursue an assault charge. At least he was man enough to admit he deserved to get hit.

The police handled the matter sensibly as well. Good to see they had more important things to do, like catch burglars.

Maybe someone had a word with the heckler and pointed out that licking your finger and sticking it in someone’s ear, then rubbing their face is also an assault. Notice that his name hasn’t been widely published. It would have had he pressed charges.

Most of us on occasion are faced with situations when an idiot is being aggressive or just a nuisance. Some, mostly men, are capable of dealing with the problem physically: one or two punches in the stomach or on the chin, or twisting the fool’s arm up behind their back and shoving them out a door. In a liberal society, there is nothing wrong with taking this approach.

It’s only a social compact that men (and sometimes women) don’t routinely become aggressive as a means of solving problems. But sometimes that compact is broken. Being able to deal with physical confrontation, being able to defend yourself and others is part of being a man. By that, I mean two things: firstly, to be capable of prevailing in a physical confrontation, or at least seeing off your attacker and secondly, to have the self control to act proportionately.

To do what David Mulder did should be legal. The only tests should be sufficient provocation and proportionality of action.

The One Punch Can Kill campaign is nanny state bullshit. Sure, if it’s a king hit to the temple or you punch an old man. But no decent man would do that.

However, if one punch knocks a man of comparable age and size down and they hit their head and die, there were a multitude of factors contributing to their death, including an inability to adequately defend themselves, despite provoking others, not to mention an inability to not provoke others in the first place.

It does not matter that women are in general less physically capable and don’t have violence as an option. Men shouldn’t have to resile from using their abilities as discussed above just because others can’t. The law should not reduce all to the lowest level of competence.

Men need to become more vocal on this issue. Say what most of us think: that sometimes a modicum of violence is an effective and even necessary solution to a problem. Those who think otherwise are welcome to their opinion, as long as they know to fuck off when told.

I Thought The Greens Were A Secular Party

For a nominally secular party, the Greens are certainly talking up the fact they have just installed “the first Muslim woman appointed to any parliament in Australia”, into Cate Faehrmann’s soon to be vacant NSW Legislative Council seat.

New MP, Mehreen Faruqi even claims to be the “first Greens MP in NSW from a migrant background”. Her predecessor is of course not from a migrant background, because she is white, despite Faehrmann / Fährmann clearly being at least partly of German extraction.

What she really means in that she’s the first choccy frog the Greens have seen fit to place sufficiently high on their Senate ticket to actually get elected. That the NSW Greens are trumpeting this is telling. A look at their MPs reveals what a bunch of white, university educated, middle class lefties they really are.

Why make an issue of Mehreen Faruqi’s Islamic background / faith at all? Is she going to be pushing Islamic issues from within a putatively strongly secular party?

Oh, but it’s about promoting diversity. Promoting the identity politics and associated tokenism which are core to this preachy, politically pious lot’s ideology, more like it.

People are categorized according to the source of their oppression: race, gender, cultural background, economic resources, sexuality, disability. Then the predominantly white, university educated, middle class lefties set about fervently fighting for social justice and railing against the exclusion of anyone who ticks at least one (and preferably more) of their boxes. Of course, if you’re fighting for the right causes, it’s OK to maintain a privileged position, like David Shoebitch’s home in Woollahra, perfectly legally in his wife's name and his money presumably safely in a trust. Were we all so privileged with the legal education and means to secure our assets from confiscation, David!

How progressive of these enlightened white people to have welcomed a brown person into their club … and a Muslim too. But Muslims being in general more antagonistic toward women and homosexuals than all but the most fundamentalist Christians is something they’ll conveniently overlook, because Muslims tend to be brown people and therefore by definition oppressed … and Christians tend to make softer targets.

If the Greens honestly pursued the secularism and egalitarianism they pretend are part of their “core values”, their press release would not have even mentioned Mehreen Faruqi’s religion, because in a secular polity, that is a private matter and should have no bearing on the policies she will promote when she enters parliament.

Judging by Mehreen Faruqi’s stated aims of supporting feminism and same sex marriage, if she still adheres to the faith in which she was raised, she must be one of the minority striving to drag it out of the mediaeval era. It will be interesting to see how she reacts to statements by more conservative Islamic “leaders” when they can’t help themselves and open their mouths again.