‘Push’Em All’: Corroding the Rule of Law

We are no longer an open society

At first glance, the combination of neoliberalism and authoritarianism might be puzzling. Wasn’t the economic prosperity that neoliberalism promised premised precisely on a small state and individual freedom? Well, not exactly. The question of freedom must always be answered by another question—freedom for whom? Way back in 1978 and shortly before his untimely death, Nicos Poulantzas described the rise of an ‘authoritarian statism’1 featuring untrammelled executive power, a weakening in the rule of law, the loss of democratic legitimacy and a growing concentration of economic interests. According to Ian Bruff, neoliberalism has always been concerned not only to advance certain economic and political values but to ‘insulate [them] from social and political dissent’,2 in particular from the democratic forces that might challenge them.

A brief look at the work of Friedrich Hayek, one of the founders of the neoliberal project, helps clarify the point. For Hayek, totalitarianism inheres in any governmental and social efforts to improve the ‘standard of life’ or ‘welfare’ of individuals and groups. Anything that advances ‘social security’ or ‘equality’—implying economic redistribution—is fundamentally antithetical to ‘freedom’. In short, as Jessica Whyte documents, neoliberal thinkers are and always were in favour of inequality and opposed to any and all forms of redistribution.3 The underlying distrust of democracy stems from its essentially egalitarian and collective nature, and its tendency towards the expansion of social welfare, undermining the protections against redistributive forces provided by property rights and market freedom. Hayek frankly avowed that he would prefer a ‘liberal dictator’ to a ‘democratic government lacking in liberalism’.4 A strong state, far from being antithetical to the neoliberal dream, was essential to it, for the limited idea of market freedom that the movement defended had to be actively constructed.5

Wendy Brown, following Foucault, holds neoliberal policies responsible for weakening democratic institutions and narrowing public space around the world.6 She connects this with the conceptual bases of neoliberalism. Specifically, by creating a hegemonic discourse of ‘neoliberal reason’ in which all human and social interactions must be understood exclusively in terms of individual and economic goals, the basis of social and collective action is removed. The language of ‘society’ becomes unthinkable, ‘common good’ and ‘non-economic value’ oxymorons. But this does not go far enough. The fundamental problem for which neoliberalism sought a solution was in fact politics and public life as such. The destruction of the public sphere is not a consequence of but central to neoliberalism’s entire political agenda: it weakens dissent, undermines democracy and makes authoritarian interventions designed to shore up the established distribution of power and wealth more likely. Understood in this way, the language of emergency provides a tailor-made ideological cover that legitimates a strong state, circumvents democratic processes and undermines political discourse and dissent.7

So the central features of a neoliberal government would include efforts to narrow the public sphere and intensify the instruments of authoritarian rule. It would reduce legislative oversight, expand executive power and weaken parliamentary authority. It would be less transparent and more secret. It would use the discourse of emergency to repress political dissent. My goal in this essay is to attempt to provide an overview of the laws and policies pursued by the Australian federal government since 2013 in these terms, and to highlight its implications for the rule of law and for Australian public life. According to the latest report by respected global monitor Civicus, released in December 2019, Australia is no longer an open society but rather one in which civil society has ‘narrowed’.8 Australia is by no means the only country in the world to suffer such a fate. Civicus places the United Kingdom, France, Spain, Italy, the United States and South Africa in the same category. In many countries, of course, including Brazil, Hungary and India, the situation has deteriorated still further. Nonetheless, this assessment contrasts with the position in, for example, Canada and New Zealand—not to mention northern Europe, Suriname and Taiwan. The report provides external confirmation of the growing alarm felt by many scholars in the fields of human rights and law in Australia.9 Australian society is not as open as it was: not as free, not as fair, not as equal. Our self-image, our lived reality, and our reputation are rapidly coming apart.

An exemplary policy

In its own way, the so-called robodebt scandal encapsulates the federal government’s approach.10 Centrelink used data matching to compare individual welfare payments against tax-office data and, where a discrepancy was detected, demanded that ‘clients’ prove that they had not been overpaid or else repay the amount in question. These debt letters were sent out by an automated system to hundreds of thousands of recipients, who were given little time to respond. Proof required many hours of labour and access to employment and other records going back several years. Many recipients did not have adequate resources or information to respond. Ultimately, private debt-recovery agencies were involved. At that point, wages could legally be garnisheed out of people’s bank accounts whether or not an actual debt was owed. Many people felt outgunned and bullied into paying up simply in order to make the problem go away.

The government’s data-matching technology had in fact been available for a decade or more. But the number of staff needed to determine whether so-called ‘income averaging’ actually revealed a genuine debt rendered the process too expensive to implement. The beauty of the new system, from the government’s point of view, was not just that the process was fully automated—a delightful efficiency that Centrelink’s clients have enjoyed for some time now—but that it simply assumed that a debt was owing and reversed the onus of proof. The government outsourced the prohibitive costs of managing the program onto its own clients. Andrew Whelan convincingly refers to this as a ‘chrono-politics’ that intentionally extracts hundreds of hours and high levels of emotional stress from welfare recipients as part of a set of highly invasive policies.11 This is not a bug; it is a feature. Neoliberalism was only designed to get the state off the backs of some of us—let us call them the deserving rich. For the rest of us, the undeserving poor, increased precarity is highly productive.12 The Newstart allowance has not increased in real terms for twenty-five years. As the Australian Council of Social Service (ACOSS) has just reported, it now covers barely 75 per cent of the basic living costs of a single unemployed person, while in the past five years the average period spent on benefits has risen by over 35 per cent to 155 weeks.13

ACOSS describes this as ‘senseless cruelty’, but there is nothing senseless about it.14 It is an economic strategy that coerces many people into accepting lower wages and worse working conditions. It is also an effective political strategy, undoubtedly creating levels of anxiety and powerlessness that reduce the appetite for political participation, not only in those who are already in the welfare system but in all those who fear descending into it. It is politically strategic in another way, too. Loïc Wacquant points out that what he describes as ‘punitive common sense’ is a necessary response to the dangerous insecurity and therefore volatility of those on the bottom rungs of the ladder.15 Finally, welfare policies like these are of ideological significance. As William Rappard, a founding member of the Mont Pèlerin Societé, noted, neoliberalism’s greatest fear was the insidious expansion of the state, driven by the popular desire ‘for social security and equality much more than for economic progress and freedom’.16 Stripping the poor of dignity and undermining the notion of equality itself are therefore central planks in the long-term sustainability of any neoliberal agenda. Reducing welfare payments, invasive surveillance, drug tests and cashless welfare cards all decrease the autonomy of recipients and increase their humiliation.

The robodebt scandal reveals the logic of neoliberal governance in Australia not only in policy but in process. As Terry Carney argued, and as is now widely accepted, Centrelink had no legal basis to impose a debt merely on the basis of statistical coincidence, and no right to pursue remedial action unless the existence of a debt had been properly established. Yet to paraphrase Holmes—Sherlock, not Oliver—what made the incident so curious were the watchdogs that didn’t bark. To understand why Centrelink managed to get away with its outrageous extortion racket for so long requires us to look more broadly at the gutting of Australian public and political life. As Carney argues, these factors include the politicisation of the public service, the increasing power of executive authority, the growing influence of political advisers in the development and implementation of policy, a lack of transparency in administrative review processes, declining support and funding for legal aid and community legal centres, and a growing indifference in much of the Australian media to the rule of law or the language of rights.17 The government has promised to do little more than tweak the system. There has been no adequate inquiry into how and why the process went so badly wrong. The government has not apologised for its illegal activity. It has not given back the vast majority of the $500 million it may have taken from impoverished Australians. It has not cancelled all the so-called ‘debt notices’ that it now seems were improperly issued. In fact, the amount of money that Centrelink has clawed back from welfare recipients under the scheme has exploded over the past two years.

Security and terror

The most obvious area in which we have witnessed the expansion of executive power and the narrowing of the rule of law has been in the field of security legislation. In the wake of 9/11, a review by the head of the Attorney-General’s Department, which in retrospect seems somewhat hasty, opened the door to a panoply of new anti-terrorism laws. This legislation expanded law-enforcement powers, limited citizens’ rights, expanded offences into new areas and increased government surveillance powers. In particular, the new laws have focused not on acts of terrorism—which, of course, were always criminal—but on broadly construed preparatory acts, and on aggressively pursuing ‘terrorist organisations’, as designated by the executive.18 Yet even consistent critics of these laws, such as George Williams, have been guilty of adopting uncritically the need to ‘re-balance’ the supposedly countervailing values of ‘security’ and ‘liberty’.19 It is difficult to know how such a balance is being struck when there is little evidence that the previous laws were ineffective or that the new laws have increased our security. In fact, there is ample evidence to suggest that they have decreased the security of many Australians—and not just that of would-be terrorists—as well as decreasing our liberty. But the legal process is far from transparent. The executive is able to limit the information available to the court, to provide judgements that courts are not at liberty to interrogate, and to shroud the proceedings in a veil of secrecy. Intentions can be and are being imputed not on the basis of evidence but of ‘intelligence’: in other words, inferences, rumours, gossip and guilt by association.20 As Jude McCulloch has said, terrorism offences are proved ‘essentially through a focus on suspicious identity that casts a pall of suspicion over equivocal, innocuous acts and otherwise legal acts’.21

In the aftermath of 9/11, ASIO was given sweeping new powers, including the imposition of ‘control orders’ and ‘preventive detention orders’, which authorise the detention of persons for extended periods of time despite their not being prosecuted for or convicted of any offence.22 ASIO officers are authorised to interrogate and detain persons who are not suspected of involvement in any offence at all, simply because in the minister’s opinion the intelligence thus to be gained is ‘important’. It is an offence even to disclose the existence of such warrants for two years. There is no right to silence; a failure to answer questions is a criminal offence. Those detained are given very limited rights even to let their family or friends know where they are. The right to legal representation has been removed. Lawyers can only be contacted by those being questioned with the approval of the officer in charge. If their presence is permitted, they can be removed or replaced at any time if they ‘unduly disrupt’ the interrogation.23

The list of laws relating to terrorism is now exceptionally long; in a recent audit, Williams identified no fewer than sixty-six separate pieces of legislation.24 This is not the place for a detailed analysis of a highly complex area of law. It is enough for present purposes to focus on legislative changes and developments since the election of the Coalition government in 2013. The Foreign Fighters Act created strict-liability offences for any Australian citizen caught in conflict zones declared by the government to be off-limits.25 The Allegiance to Australia Act, with proposed amendments currently before parliament, empowers the minister to strip Australians of their citizenship in a variety of circumstances, for example if they have been convicted of a range of terrorism-related offences, or have fought for or are involved with a proscribed terrorist organisation, and are ‘opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties’. Any Australian can be stripped of their citizenship in this way, even if they were born in this country, unless ‘the Minister is satisfied’ that the person will be made stateless as a result.26

ASIO has been granted ‘special operations’ powers that now allow agents to undertake illegal actions and keep them secret. Some limits are placed on these extralegal powers; ASIO cannot, apparently, go around murdering people, which is a comfort, to be sure. But there are no obligations to report wrongful conduct. On the contrary, these laws prevent the disclosure of anything related to special intelligence operations, even if the conduct goes beyond the immunities provided by the law. In short, it is a crime to reveal criminal behaviour by ASIO.27 There is no public-interest defence. The National Security Information Act further removes security processes from scrutiny in the course of legal proceedings and makes their disclosure in the media an offence. As former High Court justice Michael McHugh notes, these provisions may well make a fair trial impossible.28

Using the secrecy of the state to override public or democratic oversight is a fundamental strategy of neoliberal governance. The provisions now protecting ASIO’s actions are only part of the picture. The Witness J case in the ACT Supreme Court demonstrated, if nothing else, that people are being tried, convicted and imprisoned under blanket suppression orders.29 In the case of Witness X and Bernard Collaery, the federal government appears hell-bent on punishing a whistle-blower and his lawyer. The former revealed outrageous, unethical and criminal behaviour by the Australian government during economic negotiations with Timor Leste, one of the poorest countries in the world and our nearest neighbour; the latter was simply trying to do his job as a lawyer. Yet this trial too is taking place under conditions of secrecy, which makes mounting an adequate defence almost impossible. As Collaery has observed, the prosecution amounts to ‘a very determined push to hide dirty political linen…under the guise of national security imperatives’.30

A culture of repression is taking root. In June 2019 the Australian Federal Police raided the offices of the ABC and the home of senior News Corp journalist Annika Smethurst, who had been reporting on possible human rights abuses by Australian soldiers in Afghanistan between 2009 and 2013. Invoking national-security legislation appears to be simply a way of saving the army’s blushes. In July, Queensland police arrested a French film crew who were filming protesters at Adani’s Abbot Point coal terminal.31 Meanwhile, the Telecommunications (Interception and Access) Amendment (Data Retention) Act granted the executive new powers to apply for the issuing of ‘journalist information warrants’, which can compel the surrender of journalists’ metadata in order to identify their source.32 The Assistance and Access Act authorises the government to co-opt technology companies, device manufacturers and service providers into ‘removing one or more forms of electronic protection, providing technical information, facilitating access to services and equipment, installing software, modifying technology, and concealing that the company has done any of the above’.33 The law allows ASIO and others to coerce companies to secretly install backdoors and disable security defences in order to allow intelligence services to access encrypted communications. Ironically, it would not just be Australian intelligence agencies but also other state and non-state actors that would benefit from the dilution of Australia’s cybersecurity.34

Recent amendments to the Criminal Code Act have established new offences of ‘advocating terrorism’ and modified the definition of a terrorist organisation to include any organisation that ‘counsels, promotes, encourages or urges’ or ‘praises’ a terrorist act.35 ‘Terrorist organisations’ proscribed by the minister have little chance of meaningful judicial review. They include organisations that are involved in financing terrorist acts, again according to the minister’s determination, whether or not there is any actual connection between the organisation’s activities in Australia and what it finances elsewhere, and where the donation itself has no connection at all to any act of terrorism.

The terrorists to come

The political implications of these laws run deep. Both ‘terrorism’ itself and ‘advocacy’ or ‘praise’ are essentially political terms that are deployed selectively on the basis of underlying ideological assumptions.36 Crimes that prohibit certain identities or membership of groups, and that purposely blur the line between charitable, political and social associations, are necessarily prey to our current prejudices. Unsurprisingly, the ‘terrorist organisations’ banned by the government have been, with one exception, Muslim organisations. The ongoing threat of prosecution or prescription has undoubtedly chilled political and human rights activism by Muslims in Australia.37 The sole exception is equally illuminating. The PKK, a militant political organisation that seeks Kurdish independence, was listed by the Australian government during the visit of Turkish prime minister Recep Tayyip Erdogan to Australia.38 It is hard to resist the conclusion that the prohibition was a way of currying Erdogan’s favour for political or diplomatic purposes. No doubt the Australian government will come under pressure from other countries in the future; who would doubt that a trade agreement with China, for example, might be made contingent on curtailing the activities of Uighur human rights groups, or Falun Gong, or perhaps Hong Kong student organisations? Certainly, according to the Chinese government, these groups are already tarred with the brush of terrorism.39

The judgement as to what is or is not terrorism as opposed to political struggle is a partisan judgement. Crimes of advocacy, praise and encouragement need have nothing to do with acts of violence on Australian soil. Australia’s terrorism laws are certainly wide enough to have prohibited, for example, organisations that supported the ANC when it was outlawed in South Africa. Anti-apartheid activists in Australia were surely not far from ‘praising’ or ‘encouraging’ or ‘advocating’ terrorist acts. These laws could be used now to prohibit organisations calling for a new intifada in the occupied Palestinian territories. This example merely serves to clarify how readily our laws enable the government to clamp down on whatever species of political dissent it wishes.

The expansion of the discourse of terrorism to encompass other forms of domestic political dissent is already well under way. Queensland legislation aimed at breaking up ‘bikie gangs’ made liberal use of the language of emergency and did not hesitate to describe its targets as domestic terrorists, instituting restraints on organisations that are clearly derived from terrorism law. It likewise provides for control orders and preventive detention.40 Meanwhile, laws directed against environmental activists have already been passed in Queensland and have been proposed in Tasmania after previous legislation was struck down by the High Court.41 The language of ‘eco-terrorism’ is gaining currency. There is no reason that the federal government, so resolutely opposed to action on climate change, would not wish to get in on the act. Anti-terrorism legislation is already in place. The language that would legitimise its use against environmental activists is already being deployed.

A climate strike seems a harmless thing. But it is not far-fetched to ask if children and young people holding placards in support of Extinction Rebellion might be considered guilty of advocating, or praising, or encouraging terrorism. Admittedly, the legislative definition of ‘terrorist acts’ does not extend to ‘advocacy, protest, dissent, or industrial action’ so long as there is no intention ‘to create a serious risk to the health or safety of the public or a section of the public’.42 But who will determine what constitutes a serious risk to the safety of a section of the public? And laws criminalising terrorist organisations involved in ‘advocating terrorism’ are broader still. At what point will ASIO undertake ‘special intelligence operations’ in the course of which the brothers and sisters of environmental activists might have ‘important’ information and be detained without charge and coerced into providing intelligence to be used in secret trials in relation to which the minister determines whether ‘national security’ is at risk, and a ‘fair trial’ is not a consideration? Under what circumstances will environmental activists be convicted of terrorist acts or of advocating terrorism? At what point will young Australians find themselves stripped of their citizenship and deported because the minister has decided that although they may have been born and raised in this country they are opposed to ‘Australia’s interests, values, democratic beliefs, rights or liberties’? Above all—what effect will the very threat of these possibilities have on political activity?

This is what Jenny Hocking means by the ‘criminalisation of politics’. Neoliberal ideology, and equally its practices in government, actively undermine the capacity of civil society to respond to creeping authoritarianism. As Hocking concludes, ‘what is needed as part of the struggle against terrorism is not further constraint on effective political participation but a more inclusive politics, not less democracy but more’.43 Marginalising democracy, not to mention any political movement that shows a less than rapt love of fossil-fuelled capitalism, produces the very conditions of terrorism that it then gleefully exploits in order to further increase the reach of unaccountable power in this country.

A legal web is beginning to ensnare the political activity of more and more people. Under the guise of ‘foreign interference’ and ‘national security’ the Espionage and Foreign Interference Act requires the registration of activists and human rights groups involved with international organisations. It imposes on them burdensome reporting requirements detailing their involvement with overseas groups. It prevents them from accepting donations from non-Australian citizens. Revised offences of ‘espionage’ and ‘foreign interference’ cover any conduct ‘on behalf of, or in collaboration with, a foreign principal’—not just a government but equally ‘foreign political organisations’ and ‘public international organisations’—intended to ‘influence a political or governmental process’ or ‘influence the exercise’ of an ‘Australian democratic or political right or duty’.44 Admittedly, the conduct in question must be ‘covert’ or ‘deceptive’, but this extends to ‘any conduct that is hidden or secret, or lacking transparency’, for example ‘if a person takes steps to conceal their communications with the foreign principal’.45

In general, the Act grants sweeping exemptions to mainstream religious, media and commercial organisations, whose right to secrecy is of course sacrosanct. Much more limited protection is given to journalists. Charities, activists and human rights groups are given no protection at all.46 International campaigns and boycotts will become almost impossible. As Michael Head outlines, the new laws will have far-reaching implications for many charities with links to international organisations, including Amnesty International. Even reporting information to the United Nations, for example concerning the Australian government’s violation of its international obligations, might become illegal. Activities by organisations such as Greenpeace will be monitored and may well be illegal. Certainly, campaigns by Sea Shepherd or Extinction Rebellion would comprise ‘covert or deceptive conduct’ intended to ‘influence a political or governmental process’ or ‘influence the exercise’ of an ‘Australian democratic or political right or duty’ ‘in collaboration with’ ‘public international organisations’. Former prime minister Malcolm Turnbull characterised the Act as directed at political interference by China and Russia, but its real effects will largely be felt by environmentalists and human rights activists. Again, the strategies of a neoliberal government marginalise these concerns, reduce the ability of civil society to make its voice heard, and ultimately turn critics into criminals. The space of legitimate political action is narrowing.

The Act provides penalties of up to twenty years’ imprisonment for dealing with ‘inherently harmful information’ or information that ‘is likely to cause harm to Australia’s interests’, if the information was made or obtained by a Commonwealth officer.47 The Act provides some limited protection for professional journalists acting ‘in the public interest’, but would not protect, for example, activists or public campaigners or whistle-blowers. The exposure by a public servant of abusive practices on Nauru or Manus Island would be ‘likely to cause harm to Australia’s interests’ and could lead to imprisonment for twenty years. So too would leaking government information as part of an international coal-divestment campaign.48

The government has already canvassed new legislation to insulate economic interests from political dissent. The government uses the language of ‘lawfare’ to delegitimise the interests of environmental groups and proposes amendments to the Environment Protection and Biodiversity Conservation Act that will remove the special standing recognised by courts for thirty years.49 By branding such groups’ concerns as ‘ideology’ and seeking to shelter ‘economic projects’ such as the Adani coal mine from the scrutiny of ‘radical activists’—all wrapped up in the language of ‘national interest’—the government reflects neoliberal assumptions that political and social values are inherently suspect. Former attorney general George Brandis condemned environmentalists for using the law as ‘political weapons’ and contrasted them with those who have ‘legitimate legal interests’.50 The argument draws a sharp line between private property, which the law is meant to protect, and the public interest, which it is not. In a similar vein, Prime Minister Scott Morrison recently sounded the possibility of legislation to prevent consumers from engaging in ‘secondary boycotts’ of Australian companies on environmental or ethical grounds, which he characterises as ‘indulgent and selfish’.51 The neoliberal distinction between economic and political concerns insists that the Australian consumer, as Homo economicus, is expected to care about nothing but profit. At stake is the very idea of ‘neoliberal reason’, and the stunningly limited role the citizen is to be allowed in its operation.

Weakened institutions

These legal changes accomplish several interlinked purposes. They have undermined our democracy and reduced parliament to a sideshow that merely distracts our attention from real governance, strengthened executive power and the security state, and weakened civil society. The recent restructuring of the public service is a small but largely unacknowledged part of the same effort to weaken public institutions. The creation of the Department of Home Affairs was an important step towards consolidating power under the control of a single minister and ensuring that security issues dominated a range of erstwhile independent areas that previously had distinct norms and cultures, such as the former Department of Immigration. But the mega-department model has now been rolled out in many areas, for example the Department of Industry, Science, Energy and Resources, and the Department of Infrastructure, Transport, Regional Development and Communications. No doubt restructuring signals the government’s priorities: Education is to be merged with Employment and Small Business, and Arts is now a minor adjunct to ‘Communication’ and ‘Cyber safety’. But there is more at stake than this. Creating unwieldy departments across multiple policy areas places a premium on strong, centralised decision-making, increases ministerial power and therefore magnifies the influence of those who have the minister’s ear—in other words, politically appointed ministerial advisers. It reflects the government’s view, familiar in neoliberal circles, that the role of the public service should not be to evaluate or develop policy but merely to administer it.52

It is increasingly common for the government to act as if its executive authority trumps the constraints of law and custom. The granting of over $400 million to the Great Barrier Reef Foundation, a previously minor charity, via a process that hardly merits the name, comes to mind. So does the $80-million purchase of water rights by the minister for agriculture from a company founded by the minister for energy, without any tendering process and at a rate almost twice as generous as that rejected by the Commonwealth on three previous occasions as ‘not value for money’.53 The report by the Australian National Audit Office (ANAO) on the manner in which Bridget McKenzie, the minister for sport, administered the $100-million Community Sport Infrastructure Grants program was especially damning. The minister and her political staffers ignored the guidelines and criteria publicly established by Sport Australia, created a set of shadow rankings and recommendations, substituted explicitly political considerations, and allowed favoured applicants to submit and revise their applications in a manner that did not accord natural justice to other applicants.54

In the lead-up to an election, this might be considered common or garden-variety pork barrelling; that has certainly been the tenor of most newspaper reporting on the subject. But it is much more serious than that. Sport Australia is an independent corporate Commonwealth entity. It has legal responsibilities, including the ability to enter into contracts and award grants, that are specifically designed to ensure its independence from ministerial fiat. Unless the minister invoked the power under section 11 of the legislation to give the authority a legal direction as to its policies and procedures—not the case here—she simply did not have the legal authority to substitute her own judgement and award the money as she and her office saw fit. Sport Australia warned the minister that further legal advice and legislative amendment would be necessary if she were to assume authority for approving the grants herself.55The minister simply ignored these concerns. Indeed, her actions may well have been unconstitutional. Without a specific head of federal power under the Australian Constitution, the Commonwealth government cannot just give money away.56

Yet these fundamental legal issues do not appear to have crossed the minister’s mind. She assumed that her executive authority entitled her to do exactly what she wanted. A brief inquiry into the affair by Phil Gaetjens, the hand-picked secretary of the Department of the Prime Minister and Cabinet, only raises further questions. Announcing McKenzie’s belated resignation at a press conference, the prime minister also sidestepped the legal and constitutional issues involved. But he did say this:

[Gaetjens] refers to the finding in the [ANAO] report that in the absence of a Section 11 declaration, there was no legal authority evident to the ANAO under which the Minister was able to approve the CSIG program grants to be paid from the money of Sports Australia. Having consulted with the AGS and in the preparation of this advice, he considers that the Auditor-General…is, as he notes with respect, not correct.57 

The prime minister refused to release the secretary’s report or the advice provided by the Australian Government Solicitor (AGS), or that provided to the attorney general by his department the previous day. But on the snippets of information available, the conclusion is bewildering. The ANAO’s reading of the Act was straightforward and clear. Section 11 would hardly be necessary if the minister had some magic power to override Sport Australia’s decisions. Now the prime minister’s former chief of staff comes to the opposite conclusion—an extraordinary turn of events with no evidence or legal argument to back it up. The prime minister’s response and that of the attorney general raise questions about transparency in decision-making at least as serious as those raised by McKenzie’s original conduct. The minister, the prime minister, the attorney general and Australia’s most senior public servant all seem utterly incapable of understanding the basic distinction between what the program guidelines may or may not have said and what the law in fact allowed. Questions might also be raised about whether senior public servants are still capable of fulfilling their legal obligation to provide the government with honest advice ‘based on the best available evidence’.58 In all this we can see how the growth of executive power corrodes the rule of law and cultivates a culture of impunity. Further revelations that the government dispensed an additional $150 million in sport-infrastructure grants in the middle of the election campaign and without even the fig leaf of an application process59 only adds insult to the serious injury to Australia’s legal system. The news keeps coming out on almost a daily basis: the drip, drip, drip of ministerial and executive lawlessness.

We should not assume that that system itself will act as an effective brake on the decline of legal protections, the abrogation of human rights, and the undermining of democratic checks and balances. The High Court over the past twenty years has shown little appetite either to engage with the normative values of the rule of law or to muzzle executive power. As Canadian constitutional theorist David Dyzenhaus has noted, the court’s exaggerated deference to executive power ‘brings the Australian legal order uncomfortably close to authoritarian understandings of the role of law’.60 Those are very strong words from a highly regarded international expert. In the Banerji case, decided in 2019, the High Court provided very few limits on the power of the executive to limit the political-communication rights of 200,000 public servants. The court insisted that its decision protected ‘an apolitical and professional public service’, but the minister for home affairs, Peter Dutton, soon made it clear that the decision will reduce the public service’s independence and hasten its politicisation.61 The High Court did not seem to think that the public service might need to be protected from executive power in order to preserve its apolitical and professional nature.

The court, as Dyzenhaus predicted, has ‘reverted to deference when national security concerns were alleged by the Executive, even outside the context of wartime emergency’.62 Thomas v. Mowbray affords a particularly clear instance. At stake was the control-order regime of the terrorist offences in the Criminal Code. It was left to the dissents of Justices Kirby and Hayne to resist the majority’s glib deference. They pointed out that in issuing sweeping control orders at the urging of the government of the day, courts will have ‘little practical choice except to act upon a view proffered by the Executive’.63 Only Kirby expressed any concern for the effect of the broad provisions on social and political protest in Australia. Having cautioned the court that its decision would some day be viewed with ‘regret and embarrassment’, he urged his colleagues and parliament to ‘reject legal and constitutional exceptionalism’.64 His warning has not been heeded.

Normalising precarity

Where in all this can we locate Australia’s treatment of asylum seekers? The policy is by now well known and has been analysed in depth. Obviously, its evil genius is not to be credited to the current government alone. There is plenty of moral obloquy to go around. Little has changed on this front since 2013. The government spent much of 2019 attempting to repeal the ‘medevac law’, passed by parliament over the government’s own objections the year before.65 The legislation wrested some semblance of control for the treatment of desperately sick or dying inmates from the bottomless pit of the minister’s discretion. The government’s determination to undo the legislation looked like nothing more than the revenge of bruised egos.

What has happened to migration policy since 2013 has been the extension of the vulnerability of asylum seekers to onshore residents. As we have seen, the Citizenship Amendment Act allows for cancellation of the citizenship even of those born in this country. Changes to the Migration Act will mean that even long-term residents may have their visa cancelled if they are deemed, as determined by the minister, to have failed a ‘character test’.66 Asylum seekers in Australia live under conditions of ‘manufactured precarity’; the decrease in the grant of humanitarian protection visas and the corresponding increase in temporary or bridging visas have led to endemic insecurity and unstable and exploitative work.67 Constantly vulnerable to visa cancellation, asylum seekers are encouraged to ‘stay low and keep quiet’, refusing initiative, promotion or even educational advancement because of the uncertainty surrounding their long-term future.

The treatment of refugees and asylum seekers is not only the proving ground for broader strategies of discipline and surveillance, now steadily being expanded to encompass immigrants, welfare recipients, Aboriginal people, minority groups, political activists and dissenters. It also normalises the threat of repression and violence. Many writers, beginning with Michel Foucault, have emphasised the closeness of neoliberal strategies of governance to Carl Schmitt’s thinking.68 Sovereignty is about the exercise of the power to exclude, to marginalise and to discipline. It is most readily exercised under conditions of emergency and exception. It is most completely employed in the reduction to bare life or to a state of abject dependence of all those deemed to be useless subjects. Together with terrorism laws, which, as we have seen, extend their tentacles into whole communities, Australian society is being slowly fractured into classes of differential vulnerability, to whom different laws and rights apply. Such distinctions do not just affect immigrants. They undermine social trust and community solidarity more generally, entrenching the discourse of individual isolation and self-interest at the heart of the neoliberal creed, and foreshadowing a culture of precarious work, constant surveillance and executive terror that is starting to seep into Australian life more generally.

Playing games

Slavoj Žižek argues that societies—like families, like mafias—are bound together not just by their manifest values but also by the dirty little secrets that they can never openly address.69 Ideology is the mask of guilt. A conspiracy of silence surrounds the history of Indigenous people in this country and, more recently, the well-hidden suffering of asylum seekers. Guilt and shame create a kind of complicity in which we might find it perilous to expose the workings of the state, for fear that we would have to accept some of the blame. The workings of the carbostate suggests the same sort of logic. Everyone knows that our current economic practices, particularly in energy and agriculture, are hastening the destruction of the country and the planet. But for many of us silence is a pact with the devil. We continue to enjoy our current prosperity so long as no one admits the costs, both to Australia and to the world at large. Australia is in the grip of omertà, the unwritten law of shameful privilege that underwrites Australia’s social contract.

The result has been the ‘desublimation of the will to power’, sending pulses of nihilism and destruction unchecked through the social fabric. Writes Wendy Brown, ‘the subject of repressive desublimation in advanced capitalist society is not just libidinally unbound, released to enjoy more pleasure, but released from more general expectations of social conscience and social comprehension.70 Play, power and right become indistinguishable. Where it is indulged, it produces growing inequality and a selfish disregard for others. Where it is thwarted, it produces an utterly disinhibited ressentiment. In the summer of 2020, as the real implications of climate change on Australia’s ecosystems and society became all too clear in ways that touched and shattered so many of us, nihilism emerged as by far the most dangerous and far-reaching legacy of neoliberalism. It explains the ludicrously tenacious hold of climate denialism over members of the Coal-ition government, even now. We are getting used to our own extinction, our own ignorance, and our own impotence. We are embracing an economy committed to the collapse of our own society. Our political leaders are working on a heady mix of short-term economic hedonism combined with a pattern of gaslighting the nation. This is the tragic endgame of neoliberalism—politics, the public and the social have been intentionally set alight.

This scorched-earth policy was perhaps not what neoliberalism originally had in mind. Its architects and theorists did not trust governments or the people. They put their faith instead in the stabilising forces of traditions, morals and markets.71 It turns out, however, that you cannot have one without the other. Hayek to the contrary, there’s nothing ‘natural’ or ‘organic’ about these traditional social structures. They are themselves dependent on a well-defended public space, a vibrant culture of democratic discourse and some sense of a life lived with and for others. Their demise has thus had far-reaching consequences. Not that these changes have taken place without a struggle. That public square isn’t going to empty itself. Ironically, in one last turn of the screw, the final casualty of all this destruction is the aura of the legitimacy of the state itself, leaving little but naked power on display. Neoliberalism is finally sawing off the branch it is sitting on.

Just last week I stumbled across a video game that strikingly depicts this. Many games are now multimillion-dollar spectaculars that cost as much as a blockbuster movie to produce. This is not one of them. It is very cheaply made, of the sort that you can get free online and that make their pennies from the ads they force you to watch. It is owned by the game company Voodoo, the number-one publisher on App Store by downloads. Voodoo specialises in low-end games and has been accused of stealing or copying content from independent creators.72 Push’em all is currently one of its biggest sellers. It was downloaded six million times in its first month of release and in November 2019 was briefly ranked the fourth most popular free app across all categories. It features a single figure pushing a large log. There are masses of other figures in front of it, all the same colour and indistinguishable from one another. By pushing them with the log the player can clear the site of these contaminants, scattering them and sending them plummeting over the edge of the play area to their doom.

Public gatherings in Hong Kong, Beijing, Brisbane: push’em all. ‘Push them hard’, adds the App Store encouragingly. It is hard not to see the game as a legitimation of authoritarian violence. This is what neoliberal governance looks like: the cleansing of the public space of all dissent, of all populations, by violent police action. The game embodies a fantasy of the perfect placid emptiness of public space and of the nihilistic satisfactions of the will to power. The city emptied, cleansed and controlled has been an authoritarian dream for some time. Rab’a Square 2013; Tiananmen Square 1989; Tlatelolco 1968; Amritsar 1919. Just as I write this paragraph, the government has announced plans to quarantine several hundred Australian citizens, evacuated from Wuhan because of novel coronavirus, on Christmas Island or in isolated mining camps. (A solution, perhaps, to those under-utilised coal mines.) This authoritarian overreaction only further demonstrates Foucault’s and Giorgio Agamben’s claims about the nature and disciplinary reach of contemporary bio-politics, in which human beings are treated not as citizens with rights but as bodies to be herded. In such a world, public space is not imagined as the heart of the body politic but as a breeding ground for illicit contamination. It is all there in the frontispiece to Thomas Hobbes’ Leviathan, if only you look closely enough: soldiers and plague doctors own the empty city streets, waiting to stamp out the next outbreak, be it medical or political.

Push’em all is training us to see the world this way, to accept its constraints and its violence, and to applaud its cleanliness and discipline. It demonstrates how far neoliberal common sense has reshaped our art and our play as well as our law and our work. The game speaks clearly to the need to repress political dissent in the name of political order, while at the same time it illuminates the role of contemporary media in legitimation. I have no evidence that a state actor would stoop to funding the production of video games. But why wouldn’t they? Then again, why single out foreign states when corporate interests already benefit disproportionately from neoliberal authoritarianism?

The game offers the following piece of advice: ‘If you throw somebody overboard, you’re legally skilled’. It would be a mistake of course to overthink something probably made and designed in an afternoon and a text that is not even grammatical. Yet the word ‘overboard’ is surely no accident. It feels as though we are sending protesters or refugees to their death, whether off Lampedusa or off Christmas Island. We should push’em all—away, away, driving them into the sea. Even more, we should not just push them but ‘throw somebody’; in other words, we should actively expel human beings from our sovereign jurisdiction. In taking these actions, the game does not merely encourage us to enjoy our desublimated will to power; it insists that it is right to do so. The law is on our side. Violent acts that might be undertaken by riot police or by border security do not simply demonstrate a technological mastery. They are a tribute to our ‘legal skill’.

The Australian government is currently honing these legal skills to perfection, in anticipation of the need to ‘push’em all’ in the not-too-distant future. The government is setting in place legal structures that will enable it to fight the neoliberal endgame. Welfare laws, terrorism laws and border security are vivid manifestations of its desublimated nihilism, and simultaneously the measures needed to smash any resistance to it. This is surely the perfect ideology. Law is the fusion of pleasure and duty; violence both the symbol and instrument of its power.

If there is the slightest glimmer of hope, it lies in the very reliance on state and law to impose these terms. It suggests that neoliberal ideology is not adequate to maintain its economic and social power. Increasing force and the shrillness of political rhetoric suggest a growing resistance. I cannot help but think that the game, in real life or on the screen, would be more challenging—and far more interesting—if played from the point of view of those on the other side of the log. What opportunities for resistance would present themselves? For collaboration? For transformation? This would be a much harder game to play and certainly a harder game to win. But it would be more rewarding, too. As playing the game soon reminds you, ‘push’em all’ is a boring, Sisyphean exercise. Push’em back is where the action is.

Desmond Manderson is Professor of Law at the Centre for Law, Arts and the Humanities, Australian National University.

Notes

1 Nicos Poulantzas, State, Power, Socialism, London: Verso, 2000, p.247.

2 Ian Bruff, ‘The Rise of Authoritarian Neoliberalism’, Rethinking Marxism, vol. 26, no. 1, 2014.

3 See Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism, London: Verso, 2019, p. 154.

4 Quoted in Philip Mirowski and Dieter Pluhwe, eds, The Road from Mont Pelerin, Cambridge: Harvard University Press, 2015, p. 328; Friedrich Hayek, Studies in Philosophy, Politics and Economics, Chicago: University of Chicago Press, 1967, p 161.

5 Hayek, Studies in Philosophy, p. 434; Loïc Wacquant, ‘Crafting the Neoliberal State’, Sociological Forum, vol. 25, no. 2, 2010, pp 197–220.

6 Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution, Cambridge: MIT Press, 2015; Wendy Brown, ‘Neoliberalism’s Scorpion Tail’, in William Callison and Zachary Manfredi, eds, Mutant Liberalism, New York: Fordham Press, pp 39–60; Wendy Brown, In the Ruins of Neoliberalism, New York: Columbia University Press, 2019. See Michel Foucault, The Birth of Biopolitics, New York: Palgrave Macmillan, 2008, and Stephen Sawyer and Daniel Steinmetz-Jenkins, Foucault, Neoliberalism and Beyond, Lanham, MD: Rowman and Littlefield International, 2019.

7 Ugo Mattei, ‘Emergency Based Predatory Capitalism’, Contemporary States of Emergency, Didier Fassin, ed., New York: Zone Books, 2010. Also Mirowski, ‘Defining Neoliberalism’, p. 446.

8 See Civicus Monitor, ‘Australia’s Civic Space Rating Downgraded as Freedom of Speech Threatened’, 4 December 2019; and Ben Doherty, ‘Australia’s Civil Rights Rating Downgraded as Report Finds World Becoming Less Free’, The Guardian, 8 December 2019.

9 Gillian Triggs, ‘Overreach of Executive and Ministerial Discretion: A Threat to Australian Democracy’, Victoria University Law and Justice Journal, vol. 7, no. 1, 2017, pp 8–10.

10 Terry Carney, ‘Robo-debt Illegality: The Seven Veils of Failed Guarantees of the Rule of Law’, Alternative Law Journal, vol. 44, no. 1, 2019, pp 4–10.

11 Andrew Whelan, ‘“Ask for More Time”: Big Data Chrono-Politics in the Australian Welfare Bureaucracy’, Critical Sociology, DOI: 10.1177/0896920519866004, 2019, pp 1–14.

12 John van Kooy and Dina Bowman, ‘“Surrounded by so much uncertainty”: Asylum Seekers and Manufactured Precarity in Australia’, Journal of Ethnic and Migration Studies, vol. 45, no. 5, 2019, pp 693–710.

13 Australian Council of Social Services (ACOSS), ‘Raise the Rate of Newstart and Other Allowances’, Briefing Note, January 2020.

14 ACOSS CEO Cassandra Goldie quoted in The Guardian, 30 January 2020.

15 Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity, Durham, NC: Duke University Press, 2009; Loïc Wacquant, Prisons of Poverty, Minneapolis, MN: University of Minnesota Press, 2009.

16 William Rappard quoted in Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism, London: Verso, 2019, p. 45.

17 Carney, ‘Robo-debt Illegality’, pp 5–8.

18 ASIO Legislative Amendment (Terrorism) Act 2003; Criminal Code 1995 (Cth) ss. 100–102.

19 See Andrew Lynch and George Williams, What Price Security?, Sydney: UNSW Press, 2006. For criticism of the ‘balancing’ approach, see Jenny Hocking, ‘Counter-Terrorism and the Criminalisation of Politics’, Australian Journal of Politics and History, vol. 49, no. 3, 2003, pp 355–71; and Christopher Michaelsen, ‘Balancing Civil Liberties Against National Security?’ University of NSW Law Journal, vol. 29, no. 2, 2006, pp 1–3.

20 Hocking, ‘Counter‐Terrorism’, pp 364–5. See also Lisa Burton, Nicola McGarrity and George Williams, ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’, Melbourne University Law Review, vol. 36, no. 2, 2012, p. 415.

21 Jude McCulloch, ‘Human Rights and Terror Laws’, Precedent, 128, 2015, p 29.

22 Criminal Code 1995 ss. 104, 105.

23 ASIO Legislation Amendment Act 2003; Burton, McGarrity and Williams, ‘Extraordinary Questioning and Detention Powers’.

24 George Williams, ‘A Decade of Australian Anti-terror Laws’, Melbourne University Law Review, vol. 35, no. 3, 2011, p. 1136.

25 Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014; Kieran Hardy and George Williams, ‘Australian Legal Responses to Foreign Fighters’, Criminal Law Journal, vol. 40, no. 4, 2016, p. 196.

26 Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth); Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (Cth) Schedule 1, s. 9, proposed s. 36B–D;  Leslie Esbrook, ‘Citizenship Unmoored: Expatriation as a Counter-terrorism Tool’, University of Pennsylvania Journal of International Law, vol. 37, no. 4, 2015, p. 1273.

27 Australian Security Intelligence Organisation Act 1979 (Cth) ss. 4, 35K, 35P, s. 34ZS (2); National Security Legislation Amendment Act (No. 1) 2014 (Cth); George Williams, ‘The Legal Assault on Australian Democracy’, QUT Law Review, 2016, vol. 16, no. 2, pp 28–29; Kieran Hardy and George Williams, ‘Special Intelligence Operations and Freedom of the Press’, Alternative Law Journal, vol. 41, no. 3, 2016, pp 16064.

28 Michael McHugh, ‘Constitutional Implications of Terrorism Legislation’, Judicial Review, vol. 8, no. 2, 2007, p. 189.

29 Julian Burnside, ‘The Secret Trial of Witness J’, The Saturday Paper, no. 284, 21 December 2019–24 January 2020.

30 Bernard Collaery quoted in Alexandra Back, ‘It’s Dirty Political Linen’, Sydney Morning Herald, 6 August 2019; Christopher Knaus, ‘Witness K and the “Outrageous” Spy Scandal that Failed to Shame Australia’, The Guardian, 10 August 2019.

31 Civicus Monitor, ‘Freedoms at Risk in Australia with Media Raids, Silencing of Whistleblowers and Arrest of Protestors’, 29 August 2019.

32 Telecommunications (Interception & Access) Amendment (Data Retention) Act 2015 (Cth) Division 4C.

33 Telecommunications & Other Legislation Amendment (Assistance & Access) Act 2018 amending Telecommunications Act 1997 (Cth) Part 15, s. 317.

34 ABC Science, ‘Encryption Bill Could Have “Catastrophic” Outcomes for Australian Business, Industry Leaders Warn’, 30 November 2018; Josh Taylor, ‘Australia’s anti-encryption laws being used to bypass  journalist protections’, The Guardian, 8 July 2019.

35 CounterTerrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth), ss. 60-67, amending Criminal Code Act 1995 (Cth) ss. 80.2C, 102.1 (1A), 102.1AA.

36 Jenny Hocking, Beyond Terrorism, Sydney: Allen & Unwin, 1993, chapter 1.

37 Tufyal Choudhury and Helen Fenwick, ‘The Impact of Counter-terrorism Measures on Muslim Communities’, International Review of Law, Computers & Technology, 25, no. 3, 2011, pp 151–81.

38 Nicola McGarritty and George Williams, ‘The Proscription of Terrorist Organisations in Australia’, Terrorism and Political Violence, vol. 30, no. 2, 2018, pp 223–4.

39 Matthew Wilson, ‘Chinese Uyghurs: International Terrorists or a Terrorised Minority?’ Australian Institute for International Affairs/Australian Outlook, 23 December 2019; Sean Roberts, The War on the Uyghurs, Princeton, NJ: Princeton University Press, 2020.

40 Vicious Lawless Association Disestablishment Act 2013 (Qld); Serious and Organised Crime Legislation Amendment Act 2016 (Qld), Part 19 inserting Penalties and Sentences Act 1992 (Qld), Part 9D, esp. Division 3; Rebecca Ananian-Welsh and George Williams, ‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’, Melbourne University Law Review, 2014, vol. 38, no. 1, p 362.

41 Summary Offences and Other Legislation Amendment Act 2019 (Qld), ss. 2–6, amending Police Powers and Responsibilities Act 2000 (Qld) ss. 30 and 32 and inserting s. 53AA; Workplaces (Protection from Protesters) Amendment Bill 2019 (Tas.); Workplaces (Protection from Protesters) Act 2014 (Tas); Brown v Tasmania [2017] HCA 43.

42 Criminal Code 1995 (Cth), s. 100.1 (3).

43 Hocking, ‘Counter‐Terrorism’, pp 355, 371.

44 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) Schedule 5 (Foreign Influence Transparency Scheme); Schedule 1 amending Criminal Code 1995 (Cth) ss. 80, 90.1 (1), Subdivision B – Foreign interference, ss. 92.2, 92.3.

45 National Security Legislation Amendment (Espionage and Foreign Interference) Bill, Explanatory Memorandum 174.

46 The examples discussed here are drawn from Michael Head, ‘Australia’s Anti-democratic “Foreign Interference” Bills’, Alternative Law Journal, vol. 43, no. 3, 2018, pp 161–63.

47 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), s. 6 amending Criminal Code (Cth), s. 122.2.

48 Head, ‘Australia’s Anti-democratic “Foreign Interference” Bills’, p. 162.

49 Environment Protection and Biodiversity Conservation Act 199 (Cth), s. 487 (2).

50 Terry Woronov, ‘Waging Lawfare: Law, Environment and Depoliticization in Neoliberal Australia’, Capitalism Nature Socialism, 2019, vol. 30, no. 3, p. 111.

51 David Crowe, ‘Morrison’s Boycott Plan Sparks Free Speech Furore’, Sydney Morning Herald, 2 November 2019.

52 Guy Peters, ‘Politicisation: What Is It and Why Should We Care?’ in Civil Servants and Politics, C. Neuhold, S. Vanhoonacker and Luc Verhey, eds, London: Palgrave Macmillan, 2013, pp 1224. See also Guy Peters and Jon Pierre, eds, The Politicization of the Civil Service in Comparative Perspective, London: Routledge, 2004.

53 Anne Davies, ‘Government Rejected Several Offers on Water Rights before Reaching $80 Million Deal’, The Guardian, 20 January 2020.

54 Australian National Audit Office, Award of Funding under the Community Sport Infrastructure Program (Auditor-General Report No. 23 of 2019–20).

55Australian National Audit Office, Award of Funding under the Community Sport Infrastructure Program (Auditor-General Report No. 23 of 2019–20), 23–25 at [2.14–2.17].

56 Anne Twomey, ‘Why McKenzie’s Sports Rorts Defence Is Wrong’, Australian Financial Review, 20 January 2020. The Commonwealth power to give grants to the states does not apply: Constitution s. 96.

57 Prime Minister’s Press Conference, 2 February 2020: see transcript, https://www.pm.gov.au/media/press-conference-australian-parliament-house-act-4.

58 Public Service Act 1999, s. 10(5).

59 Sarah Martin, ‘Coalition Quietly Spent Another $150m Sports Grant Fund during Election Campaign’, The Guardian, 7 February 2020.

60 David Dyzenhaus, ‘Cycles of Legality in Emergency Times’, Public Law Review, 18, 2007, pp 165, 179.

61 Comcare v Banerji [2019] HCA 23, e.g. at [30–36], [70–76]. Kirsten Lawson, ‘Michaela Banerji High Court Decision a Lesson for Public Servants Who Want to be Sneaky and Cute: Dutton’, Canberra Times, 8 August 2019.

62 David Dyzenhaus and Rayner Thwaites, ‘Legality and Emergency: The judiciary in a time of terror’, in Law and Liberty in the War on Terror, Andrew Lynch, Edwina Macdonald and George Williams, eds, Sydney: Federation Press, 2007, p 9.

63 Thomas v Mowbray (2007) 233 CLR 307 (High Court of Australia), Hayne J [511].

64 Thomas v Mowbray (2007) 233 CLR 307 (High Court of Australia), Kirby J [387–88].

65 Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth); Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth).

66 Migration Act 1958 (Cth) s. 501; Migration Amendment (Strengthening the Character Test) Bill 2019 (Cth).

67 Van Kooy and Bowman, ‘Surrounded with So Much Uncertainty’; Catriona Stevens, ‘Temporary Work, Permanent Visas and Circular Dreams: Temporal Disjunctures and Precarity among Chinese Migrants to Australia’, Current Sociology, 2019, vol. 67, no. 2, pp 294314.

68 Philip Mirowski, ‘Defining Neoliberalism’, p. 446; Brown, Undoing the Demos; Sawyer and Steinmetz-Jenkins, Foucault, Neoliberalism and Beyond. In particular, see Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, George  Schwab, trans., Cambridge, MA: MIT Press, 1986; Carl Schmitt, The Crisis of Parliamentary Democracy, Ellen Kennedy, trans., Cambridge, MA: MIT Press, 1988; Giorgio Agamben, State of Exception, Kevin Attell, trans., Chicago: University of Chicago Press, 2005; Aihwa Ong, Neoliberalism as Exception, Durham, NC: Duke University Press, 2006; and Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford, CA: Stanford University Press, 1998.

69 Slavoj Žižek, ‘Superego by Default’, Cardozo Law Review, 1994, vol. 16, p. 925; Slavoj Žižek, The Sublime Object of Ideology, London: Verso, 1989.

70 Brown, In the Ruins of Neoliberalism, p. 167.

71 Whyte, Morals of the Market, pp 1–34.

72 Jess Conditt, ‘Mobile Gaming Titans Keep Ripping Off Indies’, Engadget, 7 November 2018, https://www.engadget.com/2018/07/11/mobile-clones-app-store-google-play-indie-voodoo/.

About the author

Desmond Manderson

Professor Desmond Manderson is jointly appointed in the ANU College of Law, and the College of Arts and Social Sciences at the Australian National University, where he directs the Centre for Law, Arts and the Humanities. His most recent books include Law and the Visual: Representations, Technologies and Critique (Toronto 2018) and Danse Macabre: Temporalities of Law in the Visual Arts (Cambridge, 2019). He is a fellow of the Royal Society of Canada, the Australian Academy of Law, and the Academy of Social Sciences, Australia.

More articles by Desmond Manderson

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