The Lord’s Prayer – An Analysis

 

THE LORD’S PRAYER – AN ANALYSIS

 

 

A topic of concern to many politically active groups and individuals is the “lethargy” they perceive to be prevalent amongst  non-politically active people.  They wonder how it is possible to persuade people to move from inaction and lack of respond-ability to action and respond-ability to the social environment.  

 

In the field of Feminist Theology, questions have been asked as to whether the Catholic and Anglican Churches have been responsive enough to poverty and oppression of their constituencies, and if not why have Church members not objected.  

 

There is an argument that we are evolved for maximum respond-ability to our environment, both material and social, against which the demands of socialisation militate and thus prevent a capacity for authentic response.  

 

Our images and our mythologies provide the psychological framework from which all our actions proceed.  The psychoanalytic term, projective identification,  refers to that dynamic in which, not being able to see a quality as applying to ourselves, be it good or evil, we project it onto another thus constructing either an idol or an enemy, depending upon the particular quality.

 

It is accepted that language use provides the ideological framework from which our beliefs and actions proceed.  

 

Given that  daily prayer is central to Anglicans and Catholics, and given that prayer incorporates both language and fantasy, it may be well worth while to examine such prayer to see what kinds of imagery and mythology is involved, and  to see what kind of ideology is constructed.  

 

It seems to me that  that the language and imagery of The Lord’s Prayer has the one-who-prays project all that is strong and capable of action onto the other which is named ‘God’, constructing the one-who-prays as impotent and in need of salvation, incapable of action and incapable of imagining alternatives to the status quo.  

 

Text of the Lords Prayer.

 

Our Father who art in heaven,

hallowed be thy name,

thy kingdom come,

thy will be done,

 on earth as it is in heaven.  

 

Give us this day our daily bread.

And forgive us our trespasses,

as we forgive those who trespass against us.  

And lead us not into temptation,

but deliver us from evil.  Amen.

 

(Anglican version adds:  For thine is the kingdom, the power and the glory, for ever and ever. Amen).

 

OUR​: Why ‘our’ and not ‘your’ or ‘his’ or ‘hers’?  By replacing ‘our’ with an alternative, the significance of ‘our’ is brought into relief.  ‘Our’ – the collectivised ‘us’.  Makes of us a group, and the idea of ‘group’ establishes the ‘non-group’ – the ‘out of the group’.  Like the social construction of ‘deviance’, as soon as we articulate ‘our’, we at the same time construct the ‘not our’ .  That is to say, the ‘other’, who’s ‘not  of us’.

 

FATHER​: The notion of ‘father’ is absolutely laden.  Associated with father consciousness is conditional love.  i.e. love as a reward for doing the ‘right’ thing, as opposed to mother consciousness which loves unconditionally.  Not only reward, but its obverse – punishment.  Reward and punishment constellate the notion of  judgement and judgement implies a final authority.  In other words ‘father’ represents the ‘damacles sword’.

 

WHO: This seemingly innocent word, personalises the abstract concept.  It makes human what is not necessarily human.  By constructing a concept as human we give the effect of solidity and finiteness.  A material object which by definition DENIES the possibility that ‘father’ is a concept  and  socially constructed rather than the possibility that it may be of nature and therefore un-negotiable.

 

ART: i.e. ‘is’.  For some thing TO BE has the effect of rendering material, what may not in fact BE material.  A similar effect may be obtained by using ‘lives’ or ‘abides’ as in e.g. ‘Our Father who lives in heaven’.  Not only have we made material what is an abstract notion, but by ‘placing’ that notion we reinforce the concretisation of it.

 

So far we have fantasised an ideal, we have established the ‘we’ who are the agents.  We have endowed the concept with the properties of ‘father’ and we have ‘brought him to life’.  He lives.  He exists… but he exists ONLY BECAUSE WE HAVE NOMINATED HIM TO EXIST.

 

Where exactly  have we placed him, and what does our placement of him, tell us about us?  What are the alternatives?  Where could ‘he’ live?  Imagine the possibilities.  In our back yard?  In our living room.  In ourselves?  In our own bodies?  No, he is placed, he lives, in ‘HEAVEN’.

 

OUR FATHER WHO ART IN HEAVEN:  What better way to organise and remove from threat, our ‘object’ our ‘effect of god’ than to ‘place’ that object where it is untouchable, unexaminable, unseeable.  By examining the associations we have with ‘heaven’ we see further examples of our construction.  ‘Heaven’ is UP not down.  ‘Heaven’ is ABOVE not under.  We construct heaven as utopia.  The very definition ‘heaven’ itself constructs all that is not ‘heaven’ i.e. ‘hell’, ‘earth’, ‘underground’, ‘unconscious’.

 

HALLOWED: Praise, accept, define, celebrate, see as good and viable…

 

HALLOWED BE​: Not ‘we hallow’, ‘we praise’ ‘we see’, but ‘hallowed be’.  Removal of the agent ‘us’,  makes appear as natural that ‘our’ object ‘god’ is real and that its very reality DEMANDS that it ‘be hallowed’.

 

THY NAME​: The materialisation of our construction.

THY KINGDOM​: Construction of ‘god’ as being king and ruler – un-negotiable, all powerful.  The supreme authority, and concretising the concept by ‘placing’ it in a definable ‘kingdom’, with its suggestion of vastness, boundaries, enemy, subjects.

 

COME: May our construction of our ideal object be realised.  We assume future verification of our construction of our object.

 

THY WILL: That is to say,  our construction of the object ‘god’ and our endowment to it of attributes and powers.  In other words, ‘thy will’, is a concretisation of our hopes and fears.  Our desire for god is then transmuted to ‘god’s will’, when in reality ‘god’s will’ is simply our own will, projected to our construction of our object ‘god’.

 

BE DONE: Removes the agent.  Evoking the desire that our will, our construction of the object ‘god’ be universalised.  The construction of our will as universal, reduces the probability of the ‘other’ who is not of our beliefs.  i.e. reduces the ‘not us’, reduces ‘the enemy’.

 

ON EARTH​ : In reality.  Our psychological reality. In our daily business.  That we act out and live out our fantasy.

 

AS IT IS IN HEAVEN: As we have constructed it in an IDEAL sense, and removed it to an untouchable ‘place’ out of reach and scrutiny.

 

GIVE US​: The collectivised ‘us’ which constructs the ‘not us’.  ‘Give’ suggests impotence on our part.  The alternative ‘allow us to find’ reduces the impotence a little.  ‘We will seek’ places us as responsible.  But ‘give us’ renders us impotent.  We must wait to be given.  We cannot find on our own behalf.

 

OUR: Collectivised ‘us’ which constructs the ‘not of us’.

 

DAILY: Not only are we NOT agents of our survival and must wait, but we must wait EVERY DAY.  Daily we are impotent, daily we must concede and accept our impotence.  Imagine an alternative… ‘Give us our weekly bread’.  This way we would have a respite for six days at least, but no… we are impotent and we must wait to be rewarded DAILY.  For what…?

 

OUR DAILY BREAD​: Bread.  Not cake, or fruit, but the very basic ‘staff of life’.  That which is fundamental to survival.  That is to say, we do not have a right to survival.  Our survival is contingent upon our being daily rewarded by this ‘father who lives in heaven’.  We do not construct ourselves as agents of our own survival.  As if this is not enough.  After all this, we must also be FORGIVEN.

 

FORGIVE US​: The collectivised ‘us’ which removes the  individual as agent.  We are ALL to be forgiven –  no exception.  For what?

 

OUR TRESPASSES​: What exactly is the nature of our ‘trespasses’?  What do we understand by ‘trespass’?  To move to a place which is out of bounds.  By what definition is something out of bounds?  By what definition do the boundaries exist and what is the nature of that which  is not within the boundaries?  That is to say, what is the nature of that which  exists ‘out of bounds’?  The word ‘boundaries’ also concretises.  It has the effect of presenting a real, concrete place that we must not be out of bounds in.  Imagine for example, replacing the words ‘forgive us our trespasses’, with ‘forgive us our attempts to imagine an alternative’.  We may see then that the ‘out of bounds’ is not a place, but instead, the ‘out of bounds’ is OUR CAPACITY TO IMAGINE ALTERNATIVES.  To be “out of bounds’ is to not pay accolade to our constructed object which is ‘god’.  That is to say that to ‘trespass’,  is to recognise that ‘god’ is simply a construction.  A social construction of reality.  In other words,  TO TRESPASS IS TO NOT BELIEVE OUR OWN FANTASY.

 

AS WE​: Collective ‘we’ which constructs the ‘not we’.

 

FORGIVE​: With this word, we identify with the constructed object.  We make ourselves in the image of our constructed object.  We accord ourselves the capacity to ‘forgive’.  We glorify ourselves and construct ourselves with the same right to ‘forgive’ as our constructed object.

 

THOSE: The collective ‘not us’, which constructs the ‘not those’, which is us.

 

WHO: The collective ‘not us’, concretised, personalised.

 

TRESPASS: Imagine alternatives.  Alternatives are of the nature of trespassing.  That is to say that alternatives are  the enemy and  not of the  ‘natural’ and ‘given’ ‘territory’ which is our construction.

 

AGAINST: The ‘not of us’, must, by definition, be AGAINST us.  Imagine for example, that the ‘not of us’ may be quite happily living in ignorance of ‘us’.  By the construction of ‘those who trespass against us’ we construct an OPPOSITION, our enemy, who is CONNECTED to us in its TRESPASSING against (injuring) us.

 

AND LEAD US NOT​: Imagine the effect of the alternative ‘we will not go’.  The phrase ‘lead us not’ however, constructs us as not being capable of assuming responsibility for survival in ‘foreign’ territory.  We must be protected from this possibility by the ‘father’.  WE MUST BE PROTECTED FROM IMAGINING ALTERNATIVES.  Reinforcement of impotence.  Recalls and reinforces the constellations of ‘trespassing’.

 

INTO: Concretises ‘temptation’ as a place.  Reinforces the notion of boundaries.

 

TEMPTATION​: This is an interesting one.  This is the first suggestion that ‘we’ may not be as impotent  as we have constructed ourselves to be, but note how quickly and successfully this possibility is destroyed.  ‘Temptation’ suggests firstly, the notion of AN ALTERNATIVE.  Secondly, an alternative which may be DESIRABLE.  That is to say, a ‘some thing’, not of our construction, which we might find to be pleasing.  A ‘not of us’ which may be tempting or appealing to us.  A ‘not of us’ which may demand attention from us.  A suggestion of a spontaneous appearance of a possible alternative.  INTO TEMPTATION locates the alternative as a ‘place’, whereas the ‘alternative’ may well be an IDEA – a conflicting concept.  That is, God forbid! that the alternative is the capacity to see that the construction of ‘god’ is simply a fantasy, and nothing else.

 

BUT DELIVER US​: That is to say, protect us and liberate us from the possibility that we may lose our fantasy.

 

FROM EVIL: The capacity to see through the construction is constructed as evil, as sin.  That is to say,  whatever does not reinforce our construction of ‘god’ must be rejected as EVIL.

 

For thine is the kingdom, the power and the glory, for ever and ever. Amen.  With this phrase, all that has been said above is reinforced.  The psychological dynamic of projective identification ensures that ‘kingdom’, ‘power’ and ‘glory’ must needs be invested on the object of creation and not incorporated as qualities of the one-who-prays.

 

With the “Lord’s Prayer”, an object ‘god’ is constructed by virtue of the language alone, and to that object, qualities are attributed.  Qualities of power, omniscience etc.  Not only is the object ‘god’ constructed’, but also the subject ‘we’, those who believe, is constructed.  Just as a guild is organised for the dual purpose of including and at the same time EXCLUDING, so is a guild of ‘believers’  constructed with the dual purpose of both including the ‘we’ and excluding the ‘not we’. The “Lord’s Prayer” has the effect of constructing a ‘god’ and of placing that construct in another object of construction which is ‘heaven’.  It has the effect of constructing the ‘we’ as impotent, vulnerable and dependent, and moreover has the effect of constructing ‘us’ as potential trespassers, that is to say, capable of contemplating an alternative, but determined not to even entertain the possibility of an alternative.  It is this refusal to contemplate alternatives, that is to say, our choice to REMAIN unconscious to alternatives, which at the same time constructs us as impotent and in need of our construction.

 

 

 

The following is an alternative prayer in which the one-who prays constructs a position of agency and personal power.

 

 

 

An Alternative To the Lord’s Prayer

 

Our Father and Mother

In whose image we imagine an ideal

And whose grace resides in us

Made in your image

Hallowed be our name

Our kingdom come

Our will be done

On earth.

We affirm to act

for our daily bread

And that of others who share our world

We will not remain blind

To alternative ways of imagining our world

We will not be afraid

To consider alternatives

And to act on those alternatives

If they are in the spirit of our desires for the world

In a spirit of love for our people.

 

(For ours is the kingdom, the power and the glory

For ever and ever.)

 

Amen.

 

Michaela Banerji

Psychoanalyst

Port Pirie, SA 5540

1994

 

 

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The Capacity of Our Minds to Cope with Pain

“Perhaps the greatest faculty our minds possess is the ability to cope with pain. Classic thinking teaches us of the four doors of the mind, which everyone moves through according to their need.

First is the door of sleep. Sleep offers us a retreat from the world and all its pain. Sleep marks passing time, giving us distance from the things that have hurt us. When a person is wounded they will often fall unconscious. Similarly, someone who hears traumatic news will often swoon or faint. This is the mind’s way of protecting itself from pain by stepping through the first door.

Second is the door of forgetting. Some wounds are too deep to heal, or too deep to heal quickly. In addition, many memories are simply painful, and there is no healing to be done. The saying ‘time heals all wounds’ is false. Time heals most wounds. The rest are hidden behind this door.

Third is the door of madness. There are times when the mind is dealt such a blow it hides itself in insanity. While this may not seem beneficial, it is. There are times when reality is nothing but pain, and to escape that pain the mind must leave reality behind.

Last is the door of death. The final resort. Nothing can hurt us after we are dead, or so we have been told.”

By Patrick Rothfuss, The Name of the Wind

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Public Servants and the Constitutionally Implied Freedom of Political Communication

 

Mr Towell journalist, who writes for the Public Service Informant in the Canberra Times, wrote on 30 May 2016, that the CPSU is claiming that “Public servants are being silenced by a politically motivated push to keep them from speaking out ahead of July’s federal election”.

 

According to Mr Towell, the CPSU has warned public servants to watch their Facebook likes and shares during the election campaign. Apparently, Defence Force personnel have been told they will be punished if caught electioneering in uniform.

 

One would assume that this warning forms part of the union’s own recently published guide on how public servants can make political statements and keep their jobs. And here is the problem – the conflating of three significant elements: public servants; political statements; job security.

 

For a young public servant who has a mortgage to pay and children to send to school, there is something rather terrifying at this conflation of elements. Yet, there is nothing in Mr Towell’s article that will assist the public servant to understand the true situation here, and will assume that it is better to steer clear of any political communication for who would want to risk, their livelihood just for expressing a political opinion. By doing so, that public servant succeeds in disenfranchising himself from the political process. That’s how people are silenced.

 

The really alarming aspect of Mr Towell’s article, and of the persons he quotes, is that there is no mention at all of the Constitutionally Implied Freedom of Political Communication. Yet, it is the very thing that would give a public servant clarity and hope.

 

While in the Banerji v Bowles 2013 case, the court did not see itself fit to make a declaration on this particular point, in the recent case of Gaynor v ADF 2015, the court upheld the constitutionally implied freedom of political communication. This was a huge win for all public servants, yet the CPSU has made no comment about this at all as far as I know, nor has the APSC made any comment as far as I know. I guess that it is not in their interest to make anything of that decision, for by doing so they would lose the very strategic tool, the very stranglehold, which they can use to keep public servants silenced.

 

I would say to Mr Towell, to Ms Flood and to Mr Lloyd, that it is you who are complicit in denying public servants the freedom of political communication through your failure to clearly articulate the decision of the court.

 

Like it or not, understand it completely or not, in Australia, the court has upheld the constitutionally Implied Freedom of Political Communication for public servants to engage in the political process as private citizens.

 

What this means is that public servants may use their own social media platforms, to speak as private citizens, to make comment in the political process, and they may not be punished for doing so. The argument that the APS Code of Conduct prescribes certain behaviour does not trump the constitutional freedom.

 

Yet, these lies, these ambiguities, these “trip-wires” are peddled by those who have the most to lose, and those who have the largest responsibility to convey the truth about the situation.

 

Ms Nadine Flood of the CPSU, Mr John Lloyd of the APSC and Mr Towell journalist for the Canberra Times, are betraying public servants and the general public by failing to use their power and authority to tell the truth about the freedom of public servants to participate in the political process as a private citizen.

 

These are three players who are involved in silencing public servants. None of them are telling the truth about right of public servants to engage in the political process as private citizens. They are three agencies who are peddling a vicious lie upon the public and who should know better. It is incumbent upon Mr John Lloyd and Ms Flood and Mr Towell to accurately understand, and to accurately address the constitutionally implied freedom of political communication for public servants as private citizens. Only by doing so may they remove the Damocles Sword from over the heads of pubic servants—that is, if they really wish to do so.

 

It is a travesty of our political freedoms to suggest to public servants that they may not engage in the electoral process as private citizens. To do so during an election campaign is entirely perfidious.

 

 

 

 

 

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The Abuse Cycle – An Established Paradigm

 

This paradigm obtains regardless whether the abuse is sexual abuse, or abuse in the family, or abuse at the workplace, or where a public authority makes an adverse decision, which is wrong in law, causing harm.

  1. On abuse, the abused suffers harm
  2. Compounding the harm, the abused suffers shock and awe
  3. The abused experiences intrapersonal conflict, with need to trust the abuser
  4. The abused experiences intrapersonal conflict in respect to the power of the abuser
  5. The abused experiences intrapersonal conflict with the abuser’s implied and expressed threats to the abused, demanding silence, compliance and conspiracy
  6. The abused is not successful or availed of alternative authority to confide the abuse, with subsequent compounding intrapersonal conflict, compounding the harm
  7. The intrapersonal conflict interferes with the capacity of the abused to function, thus further compounding the harm
  8. The abused evidences strange behaviour such as withdrawal, or self-harm such as cutting, anorexia, bulimia, acting out, aggression to others, methods of intrapersonal relief in response to internalising rage that should properly be expressed towards the abuser
  9. When the torment is unbearable, the abused may be forced to take action against the abuser
  10. Where the abused is not able to do this, an observer may notice the “strange” behaviour of the abused, and in doing so, may be drawn to assist the abused
  11. The advocate encourages the abused to take steps to call out the abuser, but if the abused is not capable of doing so, will advocate for the abused.
  12. There will be repercussions by the abuser after attempts to call out the actions of the abuser – those repercussions can take many forms
  13. Those defensive actions of the abuser to defend the wrongdoing are in response to the fear of discovery and sanction
  14. The abused experiences relief in having a trusted authority to advocate on behalf of the abused.
  15. The abused experiences relief in stating the case to the advocate
  16. The abused experiences relief in the possibility for the abuser to be called to account
  17. If action is successful, the abused experiences relief in seeing the abuser being sanctioned
  18. The abused experiences the relief of validation of the events, and on the sanction being imposed on the abuser.
  19. The abused will experience the beginning of healing, renewal and recovery
  20. Paradoxically, the abused will experiences sadness and grief at having cast a light onto the abuse and the abuser, and seeing the truth of the events, affirming the integrity of the abused
  21. The abused will experience the publication of the events as a public affirmation of personal integrity
  22. The abused will experience relief and validation on the punishment, imprisonment, fines, or compensation, or order for exemplary damages, however defined, and payable by the abuser
  23. The abused will be free to live life with integrity and agency.

End

 

 

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Immigrants – a psychoanalytic perspective

In my recent conversations with colleagues on my preferred social media platform, Twitter, I note a change – or at least, an emerging narrative, on asylum seekers, and by implication, on all persons who have sought to immigrate to this country over the years.

The proposition is that by denigrating asylum seekers, we also denigrate, by association and implication, all persons and their descendants, who have left their homeland to come to this country.

By the politics of distraction, political discourse has created a narrative to depict asylum seekers as “undesirables”. They are “illegal”; they are not refugees but economic migrants; they are Muslim; they do not integrate; they only want our welfare; it is a burden on the taxpayer; we have homeless and unemployed; they run mosques and private schools so as to promulgate their hateful attitude to western society”.

Psychoanalytically speaking, a society evolves along the same trajectory as an individual person.

We evolve from the thought patterns and behaviours of our past. We attend school to learn about others; to learn skills and develop talents; learn to communicate in order to understand the experience of others.

We seek counselling, either formal or informal, we undergo psychoanalysis or cognitive behaviour therapy; we participate in consciousness raising through groups; we read the thoughts of others in books and learn from them; we participate in social media.

Many of us who have been raised according to the strict regimes of religion such as Judaism, Christianity or Islam, even while drawing comfort and identity from them, have grown up to reject those teachings as being an impediment to psychological functioning in a secular society.

It’s important to remember that Australia is a secular society. Our constitution defines it as such.

In section 116 of the Commonwealth of Australia Constitution Act, we find that the Commonwealth is not to legislate in respect of religion:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

It is a simple clause, but very powerful in its effects.

While immigrants to this country live their lives in exile from their country of birth, and all that is their heritage, they bear children and raise and educate them in their host society. They build businesses, create wealth, consume goods, share cultural practice and grow old, some never seeing nr living in their place of birth ever again.

As they struggle to learn a new language to whatever proficiency their experience permits them, they may forget, or lose touch with, their first language, thus falling in to a situation where they have little proficiency in both.

Grandparents cannot communicate with their grandchildren and grandchildren cannot communicate with their grandparents.

Yet, all this happens in silence. To suffer in silence is truly the experience of many immigrants and their children who are aware of their parents suffering, as they observe them in daily life or accompany them to the doctors’ rooms or the lawyer’s office.

It is one of the reasons that children of immigrants enter a professional life.

It is a common thing for children to grow up to meet the needs of their parents. The child of immigrants who have experienced injustice in their lives may train to be a lawyer. The child of parents who suffered ill health will become a nurse or doctor. A child whose parents suffered psychologically may become a psychoanalyst or psychologist. A child of parents who suffered illiteracy may become a teacher. A child of parents who suffered poverty may establish a business.

The point is, that people evolve. That is all. And as people evolve, so does society evolve.

Immigrants have shown their capacity for personal and material evolution, and one can be sure that, psychoanalytically speaking, so will all immigrants to this country including asylum seekers, whatever beliefs they may hold on arrival.

While it may be said that immigrants of the Muslim faith do not integrate, this assertion contradicts the evidence. Indeed, they may well be glad to be free from those religious constraints in a secular society such as ours, and will, to the best of their ability and experience, be grateful to the host country that provides a new life, and a new way of life, for them and their children.

That is how evolution works.

There are nine fundamental human needs to which we have evolved as human beings. They are: Permanence; Protection; Participation; Understanding; Affection; Creation; Leisure; Identity and Freedom.

Immigrants, whether asylum seekers or not, as human beings, seek to meet those needs, as we all do. Australia’s history shows that immigrants have created this country and will continue to do so.

There is nothing to be afraid of. 

 

 

 

 

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Twitter takes a new turn

Twitter takes a new turn

I wrote recently that Twitter is at the heart of our democratic process. Hyperbole? Perhaps, but today’s postings indicate a furtherance of that proposition.

Something new evolved – a struggling narrative emerging out of the bog of our current political discourse.

As with all narrative that proposes to articulate something new, the struggle was evident, but very encouraging.

It was evident that the intention of those who participated, was to put forward their fledgling views on something significant to all Australians.

As with all fledgling attempts, whether it be learning to fly, or to make good scones, or to write song lyrics, there was both understatement and over-statement, apologetic and hubristic responses – as is expected when ever we encounter opinion that is contrary to our held views, and we struggle to step up to the new idea. While there were defensive responses, it is true that even in defensive posture, at least those contributors were engaging in the conversation

At the heart of this exchange, was a true and genuinely felt expression that there is something awfully wrong (and I do mean “awfully”) with our political discourse in regard to asylum seekers, and also, by implication, and significantly, in regard to all immigrants who have come to this country.

There was an emerging discussion to postulate the alternative view – that immigrants have served this country well and continue to do so; that there are many tasks that need to be completed; that immigrants can assist in our completing those tasks, for the benefit of all; that there is a willful denial of those possibilities by government.

The Department of Immigration, for years, from the day of Arthur Calwell, has addressed ethnic groups to propound the benefit of immigrants to Australia. I know this for a fact because I heard many of those speeches when working for an ethnic arts organisation, and I also eventually, came to write those speeches for the department.

It all begs the question: Whenever, and why, did the department of Immigration ever change its mind on this? While each of us may have our own response to this particular question, I will leave that discussion for another day.

In today’s Twitter conversation there was an attempt to re-articulate that view, and to affirm that immigrants have been, and continue to be, good for our country. It was a brave point of view to put forward in our current climate.

May the conversation continue and may many more join us, for it is a conversation that would do us good to have – a conversation in which the Twitterati have had the courage to engage.

Thus, we “bed-wetters” who write “electronic graffiti”, continue to be the heart-beat of our democratic processes.

Twitter has evolved to take a new turn.

Join us.

 

 

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Open letter to Ms Gillian Triggs, president of the Australian Human Rights Commission

In response to Right to freedom of speech cannot breach employment contract at http://www.theage.com.au/comment/right-to-freedom-of-speech-cannot-breach-employment-contract-20150430-1mwn9f.html

Dear Ms Triggs

I write in response to your article which was published in the Sydney Morning Herald on Friday 1 May 2015.

As President of our Australian Human Rights Commission, your comments on the Constitutionally Implied Freedom of Political Communication will have weight in the public domain. However, given the errors in your analysis, I am taking the time and trouble to respond to your remarks. I do so for three reasons, in self respect, to correct the record, and in the public interest.

Let us be clear. The Constitutionally Implied Freedom of Political Communication has strict and particular criteria. It is not a ‘right’ as you correctly say, but it provides immunity from adverse action should a person be punished for criticizing government, politicians, or government policy. It is not to be conflated with the US style ‘freedom of speech’ nor even the laws of defamation generally, nor even to the provisions of s18 of the Racial Discrimination Act under which Andrew Bolt was sued and found guilty. Yet, in your analysis, you conflate these separate aspects.

You say:

While, in practice, everyone is free to say and write whatever they like, this freedom is significantly qualified by exceptions. Prohibitions abound in respect of statements that are libellous or slanderous, in contempt of court, a breach of copyright, obscene or seditious, or that incite mutiny, commission a crime or disclose official secrets.

It is a mistake to conflate these very separate and distinct legal frameworks as you do in your article, as it creates confusion, instead of creating clarity.

As you correctly say, the constitutional immunity (although you do not use this word) is designed to permit citizens to engage in our democratic process without fear of adverse repercussion. Were this not to be so, our democratic processes would be wounded, and rendered unreliable.

You cite my case, relying on a journalist’s report, which itself contains errors. That you would be so cavalier about selecting the sources upon which you rely to discuss such an important issue, is to be regretted. For example, you defame me when you repeat the journalist’s claim that that I made “trenchant criticisms of guards at immigration detention centres” This is not correct. I made no criticism of guards. I made criticism of the detention centres per se—and I still do.

Your purpose in citing my case, when discussing the SBS McIntyre case, is to correctly observe that in my case, the court decided that there is no unfettered freedom. You cite the court to say: “even if there be a constitutional right [to freedom of political communication, it does not provide a licence to breach a contract of employment”.

What you are not expected to know, and one of my reasons for writing to you, is that Neville J, before making his judgment, invited the parties to make comment on this very point—whether there may be any legislative fetter on the implied freedom and if so, to what extent and under what conditions.

Both parties responded. I argued that, yes, there may be a legislative fetter on the implied freedom, but that the legislative fetter, so as not to be struck down by the court as invalid, must be “reasonable, adapted and to a legitimate end”.

To my utmost disappointment, and subsequent detriment, Neville J totally ignored these submissions—as if he had not asked for them at all, and as if I or the other party had not made them at all.

I had concluded in my submissions that it cannot be a legitimate end to create a class of persons who may not criticize government as private citizens. Yet, in a an entirely heroic way, in a true enactment of Pontius Pilate, Neville J decided that such a question was for a higher court anyway, thus failing to properly consider the question before him.

The question has never been put to the High Court of Australia for it takes money, courage and time to take such action, and I was in no position to be rendered bankrupt by such legal proceedings. The only correct thing to say, is that the law is not clear—that it has not been tested.

The other error that I think is very misleading for you to make publicly, is your assertion that an employment contract will trump the constitutional immunity—that the ‘water will rise above its source’. Given that the employment contract for public servants derives from the Public Service Act, am I to understand that you are of the view that the Public Service Act is immune from being struck down by the High Court, in the event that an employee’s actions to enter political discourse as a private citizen are to be punished by termination of employment. Neville J was wrong to make this statement, and you are wrong to repeat it.

While in the US one may contract out of the right to freedom of speech, to suggest that this is the case in Australia is misleading. I know of no law that is permitted to rise above the Constitution. While the question of an employment contract vis-à-vis the implied freedom has yet to be heard, it would be wrong to expect that the Public Service Act would not be struck down by the High Court as invalid where it puts the employment contract higher that the constitutional provision.

Indeed, I am truly alarmed at your statement that “In principle, it seems a reasonable constraint on our freedoms that we should abide by the ethics, values and standards of our employers”. It does beg the question: Even where those ethics, values and standards are unconstitutional?

You say that:

“While we may say what we please, subject to defined prohibitions, a practical, chilling outcome of freedom of speech is that we must suffer the consequences if that speech is also a breach of an employment contract”. 

 

This is entirely contradictory to the constitutional immunity, for an employment contract cannot rise above the constitutional immunity.

The other error of which I do not expect you to be appraised, arises out of the comments that you make in respect of the allegations against me for ‘outside employment without permission’. You say:

“It did not help Banerji’s case that her tweets occurred while she was working for another employer, without the permission of the Department”.

Evidently, you have relied upon the journalist’s article to make this comment, yet this is a misstatement of the facts, and defamatory. I was not working for another employer. The allegation was ‘thrown in for good measure’ by the author of the complaint against me, as the record shows. The allegation was made on the basis of out-of-date online information about my work in private psychoanalytic practice that I conducted years before my being employed by the department.

That an employer should so defame an employee, in an act of bitter retaliation after an employee makes a legitimate complaint about bullying and harassment in the workplace, and that it should be the employee to suffer detriment, is an act of bastardry, if not a failure of legal process.

While the department’s decision makers were quick to deem me in breach of the Code of Conduct for having done nothing wrong, being in fact, a longtime and staunch supporter of workers rights, they were not so prepared to see that my manager’s conduct was itself in breach of that same code of conduct. You cite the Public Interest Disclosure Act (2013) (Cth) which may be limited in its application. I am not sure if this applied in my circumstances, but there was protection for me under the Public Service Act.

While the Public Service Act provides for an employee to be protected from adverse action should she make a complaint about workplace practices, the decision-makers in the department did not offer such a protection to me, conveniently ignoring that particular provision of the Public Service Act—to my detriment.

You make reference to the fact that Australia does not have a Bill of Rights to protect freedom of speech.

Yet, what is not generally known is that we do have a Bill of Rights which, unlike that of the United States, was adopted by the colonies according to the Doctrine of Reception. In the ACT that 1688 Bill of Rights is on our legislative register as current law. We also have the Human Rights Act 2004, which, among other things, declares that no person should be attacked in her reputation.

It is also not generally known that the 1688 Bill of Rights is the document from which other ‘rights’ bills and conventions, (including that of the US) are drafted. In Australia’s case, we have a special relationship to that 1688 Bill of Rights, for unlike the United States, our very own constitution flows from this 1688 Bill of Rights, rendering a further Right to Free Speech superfluous.

In all, your final conclusion is alarming. You say:

‘It is probable that the Banerji decision reflects Australian law in the absence of any legislation confirming the common law right to freedom of speech’. 

 

This is an entirely misleading statement which muddies the waters of discussion. The Banerji v Bowles decision does not reflect the law. The decision was seriously flawed as it did not properly consider the submissions before it. Neville J stated that the question was for a higher court, but so far, the question remains to be heard by the High Court.

There exists, whether we like it or not, whether we understand it completely or not, whether people muddy the waters or not, a constitutionally implied freedom of political communication, which provides immunity from adverse action arising out of any citizen’s freedom to criticize government, its politicians, and its policies as a private citizen. Where that perpetrator of adverse action happens to be an employer makes no difference. Whether we criticise anonymously, or in our own names, is irrelevant. Whether we do it at the pub, or on Twitter, is irrelevant.

To have it otherwise, to have your view of things, would be to risk creating a class of persons who are precluded from engaging in the political process.

This is not a “legimate end”. Instead, it is a truly Orwellian prospect.

Posted in Australia, Australian Human Rights Commission, Constitution, Freedom of Political Communication, Government, Human Rights, Public Service | Tagged , , , , , , , , , , | Leave a comment