Sally McManus, unjust laws and outraged politicians

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(Screen shot of Sally McManus via

Sally McManus' critics display world class hypocrisy, and ignore what she actually said and the context in which she said it, writes Emeritus Professor Barry Hindess.

WHEN LEIGH SALES interviewed the recently elected secretary of the ACTU, Sally McManus, last week on ABC's 7.30, she laid out an obvious trap.

Sales first asked McManus whether she believed in the rule of law and, upon receiving a positive answer, invited her to condemn the CFMEU, which she refused to do.

McManus said simply that she believed in the rule of law:

" ... where the law's fair, where the law's right, but when it's unjust, I don't think there's a problem with breaking it."

Rightwing politicians and media commentators had a field day.

Prime Minister Malcolm Turnbull said Ms McManus' comments were from:

... a union leader who said the unions are above the law. She believes that you only have to obey the law, or unions only have to obey the law, if they agree with it ...

What she has done is defied the whole rule of law, and this is the culture of thuggery and lawlessness that the CFMEU, of course, is the great example of, and this is the culture of the union movement, it is the culture of the Labor party in 2017 .… These are the people, these are the values or lack of values that is driving Bill Shorten — so he doesn't care about the truth and he doesn't believe in the law.

The Sydney Morning Herald reported 'Unions, Labor Split over ACTU Sally McManus' and next day, The Australian followed with: 'Union leader Sally McManus blunders with her law-breaking stance'.

Barrie Cassidy, host of ABC's Insiders tweeted on March 15:

'There's a difference between agitating to change laws and disobeying them. So individuals decide for themselves? There's a word for that.'

He was quickly reminded of Gandhi, Martin Luther King and other deliberate law-breakers who are now widely regarded as heroes — and of journalists' professional refusal to reveal their sources to the authorities.

And again, a political philosopher at the University of Sydney, apparently without registering the nuanced quality of McManus' response to Sales, wrote 'Why Should We Obey the Law?' in The Conversation, a piece that recycled Plato's romantic tale of Socrates choosing to accept the death penalty rather than reject his obligations to Athenian Law by fleeing the city.

Meanwhile, Opposition Leader Bill Shorten courageously distanced himself from McManus' response, saying that in a democracy those who felt a law was unfair should seek to have it changed:

"If you don't like a law, if you think a law is unjust, use the democratic process to get it changed ... That's the great thing about living in a country like Australia. That's what democracy is about."

What can one say? That McManus' critics displayed world class hypocrisy, proving that Australia is still up there with the best in the fabrication of feigned outrage, not far behind North Korea, while also displaying an industrial-scale ignorance, both of the rule of law (see Ingrid Matthews' admirable 'On the dangerous dishonesty of 'rule of law') and of the history of Australia and other contemporary democracies? That Shorten and Cassidy share a starry-eyed view of the quality of Australian democracy?

Yes, all this and more, but what I find particularly revealing about the character of political debate in Australia is that this critical commentary displays no interest in what McManus actually said or the context in which she said it.

The context is clear: an interview on 7.30 in which Leigh Sales clearly set a trap for her guest. Rather than say nothing, McManus gave the carefully worded response quoted above.

To say “when a law's unjust, I don't think there's a problem with breaking it", is not to directly advocate law-breaking — it is to suggest that McManus would think twice before condemning Gandhi, King or union members who take industrial action when confronted with unsafe working conditions. Nor is it, as Turnbull stated, to deny the rule of law or promote a “culture of thuggery and lawlessness”.

However, that her critics ignore McManus' own words in favour of tendentiously putting words in her mouth is further evidence that the Western "post-truth" syndrome has taken firm root in Australian public life. The Coalition's ferocious attack, in Parliament on Monday, on Shorten and Labor's record of defending worker's rights, is another example.

Finally, what of Bill Shorten's starry-eyed view of democracy? The term democracy, derived from ancient Greek demos (the people, mob) and kratos (rule, strength) is often understood as meaning "government by the people". On this understanding, everyone in a democracy shares responsibility for its laws and other decisions. This view of shared democratic responsibility underlies Bill Shorten's view, supported by Barrie Cassidy's tweet quoted earlier — that if you don't like a law in a democracy, you should not break it but work to change it.

In practice, this simple view of popular government does not accord with the everyday experience of Australia and other contemporary democracies. To understand this discrepancy, we should first recognise that Western political thought has not generally favoured democratic government, usually because the majority are likely to be poorly educated and ill-informed.

The Western tradition of rejecting democracy has been carefully documented in the under-appreciated 1994 book Athens on Trial: the Anti-Democratic tradition in Western thought by Jennifer Tolbert Roberts. Naturally, the wealthy minority have generally had an interest, as they clearly have today, in limiting the influence of popular concerns. Educated supporters of the American revolution – for example, the American authors of the Federalist Papers and the English radical Tom Paine – argued in favour of keeping the people in their collective form out of the work of government by placing this work in the hands of representatives elected by the people. Tom Paine preferred 'representation ingrafted upon democracy' to democracy itself.

The second thing we should recognise is that, by the beginning of the 20th century, democracy had also come to designate "representative government" — a complex system of government by networks of elected representatives and unelected public servants, operating through combinations of representative, vaguely consultative and hierarchical institutions.

The long-standing Western fear of the people is central to this second sense of democracy, which involves institutional arrangements designed to both promote popular participation and limit its impact. When the World Bank, international development agencies and Western political leaders favour democracy promotion, it is usually this second understanding of democracy they have in mind.

In short, talk of democracy today reflects both the original meaning of the term and the long-standing Western fear of the people — a fear that surfaces today when professional politicians and serious commentators deplore both populism and popular public protests or demonstrations.

Bill Shorten's lame attempt to avoid the fall-out from McManus's interview draws on the first, while rabidly self-righteous Coalition attacks on McManus and the labour movement draw heavily on the second.

Barry Hindess is an emeritus professor at Australian National University’s School of Politics and International Relations.

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