The War against Humanity

QANTAS

The last time I tried to get somewhere with Qantas on its Frequent Flyer program [about 2000], I had to retain my travel agent to act for me, not to enforce what we saw were my rights, but to get a modicum of sense and courtesy out of our national airline. I managed to negotiate a return trip to India. Part of the price was that I had to return [from Mumbai] by Singapore, Brisbane and Sydney. I would have happily paid the full fare to avoid the milk run. It was discomforting to fight off the crew seeking to get to the Exit seats, or to compare the service provided by ‘our own airline’ with the charm and courtesy – no, more, the dignity – shown on the Indian airlines in India.

That is as it was written in 2004, or thereabouts. What kind of business goes so far out of its way to antagonise its best supporters and drive them away?

It was about twenty years – a generation, say – before I got the courage to fly Qantas again. I could not bear the thought of the frightened rudeness of a distraught flak-catcher on the other end of the phone.

Since that was written, the House of Joyce has collapsed, due in large part to the pursuit of it by Rear Window in Australian Financial Review. I have never met Mr Joyce, but his image calls to mind remarks by a distinguished English historian about two of the leading figures in the French Revolution. The Reverend J M Thompson said that the hero of two worlds, Lafayette, was too priggish to work with a man of no moral reputation like Mirabeau, and ‘too conceited to abandon that glorious isolation in which, as Mirabeau told him, he lived “entirely surrounded by himself”.’

National Australia Bank

The following letters show why I left a bank that I and my mum and dad had banked with from time immemorial.

23 March 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC.  8060

Dear Mr Clyne

SALES TEAM D

You don’t know me. Neither do any of your employees. Since you have been my banker for 60 years, I think that that is very sad. Don’t you think that is very sad, Mr Clyne?

When I bought my present house, I was subjected to treatment by some of your operatives that in part caused me to write the attached paper on ‘The Decline of Courtesy and the Fall of Dignity’. You will see that your bank has the misfortune there to be compared to Telstra and Qantas. That is not good company to be in, Mr Clyne. The part that really got me was the threat – that is exactly what it was – to pull the pin – that was the phrase – on a bank cheque. Your staff could give a customer a heart attack threatening to do that to them on the day that they are settling on a house purchase. A bank threatening to renege on its own paper? It is hard to imagine a better example of how banks have lost their way – how once respectable business houses have now become unrespectable counting houses .

Being minded to move home, I thought I should confirm my leeway with your bank before making an offer. I drew Sales Team D in the lottery. I said I was happy to go to your Kyneton Branch and talk face to face, but, no, Sales Team D told me they were on top of my case.

Your staff can fill you in on the sad results, Mr Clyne. I had to prove my identity – at least twice. Sad after 60 years, is it not? The property I am looking at is worth under half of a city property that I can offer for security. The increase to the existing facility is modest. For any bank that knew me as its customer, and wanted to look after me, the proposed transaction would hardly raise a query. Not so with Sales Team D, Mr Clyne. I was required to produce tax returns, and then told I would have to surrender one credit card and submit to a reduction on the remainder. I began to feel for the people of Greece. Now, Sales Team D wants to go beyond the tax returns, and I now have two accountants wondering just what has got into Sales Team D.

How would you or your fellow directors like it if they were treated like this by someone they have been doing business with for ten minutes, let alone 60 years? In the course of more than 40 years’ legal practice, I have held various statutory appointments, including running the Taxation Division of the AAT, later VCAT for 18 years. Some people – including Her Majesty the Queen in right of the State of Victoria – therefore felt able to take me at my word. But not Sales Team D. Do you know why, Mr Clyne? My bank does not know who I am.

Perhaps they are worried about my recent expenditure on credit cards. Let me assure you, Mr Clyne, so was I. Very worried and very annoyed. I bought a CLK Mercedes about six months ago at a very good price. I just needed to extend a borrowing facility by six thousand to get the $26,000. I got handballed around four operatives, having to prove my identity along the way. I got referred to various teams. Most asked my occupation. (Sales Team D the other day asked if I was still a member of a firm I left about ten years ago and which ceased to exist the other day.) I was told my case was difficult because the facility was secured. Then I was asked to produce tax returns to support a request to extend a secured facility by six thousand dollars. That is when I gave up – and used the credit card to buy the Mercedes.

I do not blame any of the few employees you have left. They are trained – programmed – to be automated and not to think. They also know that the market, which can never be wrong, values their contribution to the bank at about one hundredth of yours.

Do you know what I think, Mr Clyne? George Orwell was wrong. It is not big government that is tearing up the fabric of our community by Big Brother – it is Big Money, and Big Corporations. I think that you and your fellow directors should be ashamed of yourselves.

If it matters, I hold shares in the bank, and I am not a happy shareholder either.

Yours sincerely

Geoffrey Gibson

*

3 April 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC, 8060.

Dear Mr Clyne,

SALES TEAM D

Well, they did it for you. Sales Team D – may we just call them STD for short? – stopped me from buying the new home that I wanted. It was not perfect – it was just ideal. Ideal for me, Mr Clyne. But, then, what is a mere home to someone like me to a great Australian banker?

How did STD manage to pull it off, you may ask, Mr Clyne? Quite simply really. They did not know me, and they did not know what they were doing. This all became sadly but inevitably apparent when a roaming STD cell-commandant opened his phone talk with me after my first letter to you with the gambit that my problem was that I had overstated my income. Really, Mr Clyne, your attack-dogs and flak-catchers would want to be on the highest level of dental insurance if they want to go around behaving like that. No wonder you forbid them to meet your customers in the flesh.

But I suppose that the Ads and FCs of STD kept you safe from my letter. You would prefer to stay like Achilles gleaming among his Myrmidons, except that you would not stay sulking in your tent – no, you would be glowing over all that lucre.

You and the people at STD are a real threat to business in this country, Mr Clyne. You should be helping the flow of capital. The big Australian banks are doing just the reverse.

And you should really stop those ads that tell the most dreadful lies. Lies like your people are free to make decisions, or that the big banks like competition. Nothing could be further from the truth, Mr Clyne. The people at STD know that they are forbidden to think, much less make decisions, and STD shut up shop completely, and have been in a surly sulk ever since I told them I was talking to another bank. (Although they did ring the other bank to inquire – without my consent – about what I was doing.) The major Australian banks are just a collusive cartel operating sheltered workshops that rely on the people of Australia to bail them out whenever they balls it up – and then they pass on their guilt and paranoia to those same people by refusing to lift a finger for their customers when they need a bank.

Those people do not hold your staff responsible for the shocking fall in the standards of our banks, Mr Clyne. They hold you and your like responsible. You do after all get paid about one hundred times as much as the folk of STD.

If you and your board step outside your cocoon of moolah, minders, and sycophants, you will not find one Australian – not one – that has a kind word for any of you. What all those people should do to the big banks is to take their business elsewhere. That is what I will do. You never know, Mr Clyne, I may meet a real person in the flesh, one who might know what they are doing, and who will even know who I am.

Yours sincerely,

Geoffrey Gibson

*

In accordance with procedures laid down, I got no response to either letter. Sold my shares in the bank. I concluded a post containing these letters with the following:

How did we let this happen? How did we come under the heel of people whom we would cross the street to avoid?

ASIC

The performance of the corporate regulator may be apparent from the correspondence below. Although an actual person, a real human being, surfaced, I have not included her name in this transcription. The regulator which polices business sought, through a robot, to penalise me by a fine of above $300 for being late with a $55 filing fee.

Dear ASIC

[References]

A robot has sent my super fund a bill for S399 – a fee of $55 plus penalties. I have paid the $55. You should be ashamed of yourselves for letting a robot demand money with menaces.

I would be glad if a human being could acknowledge the change of address to that below.

Yours truly,

*

Dear Madam

I have your letter of 10 November.

In my letter of 20 October – see below – I advised of a change of address and I said that ASIC should be ashamed of itself for demanding money by menaces.

In your letter, you now say I need fill in a form for my change of address and you appear to contend that the penalties are still owing. At least you do not say the contrary.

The fee was not for any form of service. It is a fee – or tax[BS1] [BS2] . On my small super fund which will I hope keep me off a pension. Although I have paid more than enough in tax over fifty years.

Although your signature appears under the letter, it must surely have come from a robot.

What is the Commonwealth of Australia saying to a taxpayer who pays your wages? Are you saying that although I have notified you of my change of address, that I must now jump the counter and do your filing for you? That I should volunteer my time as a civil servant?

Are you saying that a delay of two months and five days in paying a fee of $55 warrants the imposition of a penalty of more than five times that amount? During a time of national pandemic and emergency when no one could rely on the post?

Do you agree that if a business that ASIC watches over sought to act in that predatory fashion, it would be the job of ASIC to run the mongrels out of town – Pronto, Tonto?

Yours truly,

I have your letter of 13 December.

You refer to a number of legal issues, such as waiver. I do not know which laws you may have in mind. The discussion by the High Court in the Voyager Case was very long. In any event, this correspondence has lost whatever utility it may have had. I see that you now address the company at its new address so that that issue is closed also.

Happy new year.

As best as I could see or now recall, the corporate walloper at that stage threw in the towel. But I was wrong.

ATO

No sane Australian does their own tax return – least of all those who are otherwise qualified to do so. Very few are able to follow any of it. To quote Cicero, it is all Greek to me. And I am profoundly grateful that I can pay people to stand between me and Centrelink. Centrelink is ready willing and able to blow my mind. It is therefore vital that we are able to have sensible and obliging people respond when we are beset by the robots of government or business.

Then the Australian Taxation Office chucked a boulder into that duckpond. Because of a change in my accountant’s set-up, I had to change my tax agent for my super fund (Phaedo – a dialogue about death). Commsec holds all my super. Its robots said that Phaedo had been deregistered, and that they would transfer all its assets to ASIC unless I fixed it. Well – there was the first job for the new agent. Just write a letter or, possibly, fill in a form.

Not on your nelly. My new agent advised me that I would have to take four steps – the first two steps were linking myself to the fund via myGovID on my iPhone. I would not have to nominate him until step four. How many Australians over forty could do that?

After forty minutes of hard swearing, I gave up. And I had not reached the stage of matching photos. So I called on my son-in-law, whose job entails doing this kind of thing on-line, and after about half an hour, I was linked to my fund by means I did not understand.

Then I had an accountant call on me to complete the process. It took us about an hour – and we were relieved. All up, I was engaged about five hours. 

On notifying a change of agent to my government.

Finally, I got to a pleasant lady at ASIC who saw to the reinstatement of Phaedo. The ‘fees’ totalled about $1400. ASIC still held my old address – in spite of the events above. The pleasant lady sent the letter to my present address, but the robots said I had to change the address on the right form. This was the robots’ revenge for my refusal to act as filing clerk. They always get you in the end. After reinstatement of Phaedo by ASIC, I found they still had my old address.

I told them of the change years ago, but I must do so on a form.

I spent half an hour online and did not get far. The computer said I could not spell my own name. Rashly, I called ASIC on the phone. Stupid boy! I was told not to be abusive. Then I was told they were too busy to take my call. Then I read that the paper form was no longer available. Then I instructed my accountant to take over – again.

Somehow – we were not sure – we got through it. I hope.

What is it that drives or allows people whose wages I pay to torment me like this? What does this do to the Australians called on to inflict this torment? How do people fare when they live in an alternative universe?

And then ASIC got me again the following year. They sent emails requiring me to pay the annual renewal fee for the corporate trustee. The emails were ‘DO NOT REPLY’ and I could not work the system – to pay the bill! What kind of creditor makes it difficult or impossible for the debtor to pay the debt? Off to the accountant before I got struck off again. He enabled me to pay the ASIC fee. $65. His very reasonable fee was $385. This is for a government agency that polices how we do business in Australia.

Basil Fawlty was what we call a rank amateur.

The Adversarial Trial

3

Humanity

What is the role of the advocate in this fretful drama?

The first thing is to be aware of those simple facts of forensic life from the top of your head to the tips of your toes.  The only way that you can get this is by experience – long and hard experience; say about fifteen years in the trenches for starters.  You do not get this stuff out of books.

Then you have to start schooling the punter in those facts of life.  Before you do that, you need to get to know the punter.  To do that, you have to work hard, without being seen to do so, to put them at their ease.  This is very important, and you cannot duck this job by some prissy notion of your own elevation. 

We are not just talking about courtesy.  We are talking about your getting into the best position to represent this punter who trusts you and pays you to do just that.  I used to give the following advice to novices.

This is not just a matter of courtesy to your client – you have to spend time with your clients to understand them in order to prepare them for the trial, or for giving evidence, or to make a decision to settle, or so that you can assess how they might go in the witness box, or see if they can merely endure the stress of the conflict or the court.  You need insight into the client and frequently that insight will commence with sympathy.  In anything like a long or hard case, it will be necessary to fortify the client.  If you are so regimented that you have trouble relating to people or getting them to relate to you, have a look at the way Michael Parkinson goes about it.  Sometimes it is important just to shut up.  Some lawyers find this suppression of ego very hard, but our whole forensic process – and I may say a large part of our mediation process before the lawyers hijacked it – is founded on the value that we attach to letting people have their say.

I cannot stress this enough.  We too often do not do enough to ease the cold fear that the power and mystery of the law induces in people – including a lot of lawyers.  Remember that you are a specialist, and that as such you are ‘a worker in a craft too intricate for easy understanding’ and that ‘any such specialist, any such master of a mystery, is suspect to the ignorant’. 

Dealing with this takes skill, and that skill, too, only comes with experience.  And experience suggests that often it is enough for the punter to have their say before someone who actually listens to them.  And if things later go off the rails, and the judge misbehaves, the client might think that you were the only one ever to give them a decent hearing.

Just think what goes through your mind when you go the dentist.  This could bloody well hurt.  It will certainly be bloody expensive.  I have no idea what they are doing – or how or why; I can’t even see it.  I am completely in their power – I can’t even answer back!  At least if I go the doctor, I am sick, and she will fix it.  This is at best a routine service, and there are millions of other things I should be doing.  I will probably be kept waiting, and the chances are that I will be exposed to damnation by the glittering teeth of those smiling fiends on daytime TV. 

And multiply that by, say, ten for the misgivings of a punter going to see a lawyer.

You need to get the client at ease in order to get the whole story and to get it straight.  Young advocates will go through phases in their career where you get a brief the night before the trial, and after about two hours of hard talking, you and the client finally realise what the case will really turn on – the lawyers have not previously taken the time and trouble to dig down as deeply as this before.  You may have to have an eye on the law to know where to look, but you should otherwise not bother about the law until you are confident that you have a full grasp of the evidence that is available. 

It is not just knowing your brief – it is developing it.  And the same priority goes in the way that evidence is presented, and in the submissions made to the court on the findings that might be made on that evidence.  Indeed, you can carry that attitude – on the prime value of evidence – right up to the top appellate courts.  Some flash Harries think it is enough to be a juristic hot shot.  They are dead wrong.  Justice Jackson, of the US Supreme Court, gave this advice for appellate advocates, but it applies generally:

The purpose of a hearing is that a court may learn what it does not know, and it knows least about the facts.  It may sound paradoxical, but most contentions of law are won or lost on the facts.

Then, and only then, can you go to try to find the law and seek to give legal advice to the client by seeking to apply your conclusions on the law to what you believe might be the findings of fact made by the court – always bearing in mind, especially if your client is starting the contest, that you may have little or no idea of the evidence available to the other side. 

Don’t be afraid to say that you do not know the answer, or that you may have to look up the law or consult a colleague – many people feel some kind of elevation if they are told that their case is special.  Then you have to try to put your conclusions without jargon or condescension and in plain terms that the client can follow.  Can you talk to the client so that the client follows you?  You should give your advice plainly but in terms that you can put into writing – it is remarkable how large advice can greatly shrink when it gets into print.  You should try to avoid odds or percentages – they might suggest a capacity for measurement that is simply not there.

If going to court is an option, so many questions arise.  The first is that which was contained in the trains during the war: ‘Is this journey really necessary?’  Will you still feel this way later?  Will your client still respect you in the morning – or next year?  What if we prepare a writ, and just put it in the drawer for a while?  Is the other side worth suing?  Can they just run over us?  There is a world of difference between a widow suing a bank, and a bank suing a widow.  Will the costs dwarf the damages – as happens now in so many cases especially in defamation?

The permutations are infinite, on risk and costs, but if the person complaining of the wrong still wants to go to law, they will have to endure many different kinds of hardship.  One of the first judgments the lawyer must make – and it is a judgment – is whether the wronged victim – the client – has what it takes – physically and emotionally as well as financially – to step into a ring that routinely mauls or maddens or bankrupts those who are not up to this kind of licensed lottery. 

It terrifies me to speak to barristers who should know better who tell me that they will meet their client when I do – at the mediation.  It is shocking to launch people on litigation – at either end – without seeing them and assessing whether they have what it takes to go the distance and have been properly warned – and not just given some rote and tame disclaimer by some other lawyer who might have other views or needs about fighting cases or keeping the meter running.  If the victim is jittery or looks to be intimidated by going to a lawyer’s office, what will they be like in court – being cross-examined by Jeff Sher in front of Bill Crockett – while the press waits hungrily outside? 

Pretty much the same inquiry must be made on behalf of the person sued.  You need to get to know them, and to be able to assess their capacity for endurance.  You would not be soothed if the first time you met your surgeon was just before the operation, and she asked her assistant on what side of your brain lay the tumour that she was about to remove.

There’s no need to go overboard on the warnings.  Don’t scare someone off doing what looks reasonably to be in their best interests.  To the extent that there is democracy in discussions between lawyer and client, it can afford to be a guided democracy – very guided.  There are ways of helping people reach a sensible result, just as you will find weapons to prevent them from blowing their own brains out.

The Pursuit of Happiness

Essentials in life

If we are busy in a profession or business, or in raising a family or running a farm, we will most probably just get it badly wrong if we allow that fact to dominate our lives to the exclusion of other things we might do, not just to enjoy life, but to justify our existence and have something to leave to those who come after us.  Some things in life have been fundamental to me.  I regard them as essential.  What might be classified as ‘diversions’ can be dealt with later.

People like me are so fortunate to have been born when and where we were.  People who happen to get on in a profession or business, and make something of their lives while making a living, are even more fortunate.  It does I think help if you have got your hands dirty or had your nose rubbed into it on the way up.  That way, you are better placed to recall just how supremely lucky and blessed you are – preferably every day.  We saw above the remark of Mommsen about people who labour just to pay the bills.

As ever, we don’t need to get bogged down in or misled by labels.  Like ‘leisure’.  Or ‘drama’.  Sometimes we revel in drama.  Other times it’s the last thing we need.  For ‘drama’, the Compact Oxford English Dictionary offers the ultra-prosaic ‘an exciting series of events.’  We might hope for drama in a World Cup Final.  In giving birth or burying a member of the family, it’s the last thing that we look for.  We might enjoy the drama – the excitement – of pulling something tricky off in our profession or business, but the theatre is not the only place where we go for drama outside of working hours. 

Put differently, we might experience ‘theatre’ in a different arena to a building in the West End or Broadway.  We might feel some sense of drama if not theatre in a sporting arena, a concert hall, an epic poem, a classic of historical writing, a lecture theatre, a law court, a restaurant, a surgery, or a mountain top at dawn or dusk – or the Iguazu Falls, the Grand Canyon or the Bungle Bungles – or a loved one – a dog, say – getting close.  We don’t need or want to be imprisoned behind the bars of categories made by other people which can look arbitrary, or petty, if not downright perverse. 

We especially don’t need to get put off by labels like ‘highbrow’ or ‘lowbrow.’  If you prefer dogs to cats, Elvis to Mozart, footy to opera, that’s fine.  Whether you are either a player or spectator, sport can offer high drama in a form of theatre.  One difference between football and cricket and Hamlet and La Traviata, is that the sport is played for real, no one knows how it might end, and it often involves, for better or worse, a more active form of communion from people in the community. 

It is fine leaving the opera house after a wonderful performance of Figaro.  It is altogether a different thing to leave the Melbourne Cricket Ground after Collingwood has beaten Melbourne in the footy, or Australia has beaten England in the Ashes.  We are speaking of different worlds that do not bear any comparison.  You might as well ask if Jonas Kaufman is as good as Pat Cummins, or if Ash Barty is as good as Anne-Sophie Mutter. 

For people who know neither God nor the traditional theatre, sport may be the only version of theatre in town.  And when it is put on as well as it is in the city of Melbourne, it defines the sense of community in that city.  You can just about taste it in the air on Boxing Day, the Australian Open, the Grand Prix, Grand Final Day, or Melbourne Cup Day.  It is hard to think of any other city that comes close.  And it is vital for any city to foster that sense of community and belonging across the city.  A city is just community writ large.

We might reflect further on the ‘drama’ involved in the arena and in the theatre.  Humanity has sought release or relief in each from before the beginning of written history.  Our fascination with the sporting arena goes back well beyond the ancients.  They went in for all sorts of games.  In introducing the subject of racing, Edward Gibbon invited his readers to go back to Homer – about, say, 800BCE.  ‘Read and feel the twenty-third book of the Iliad, a living picture of manners, passions, and the whole form and spirit of the chariot race.’  (The Greeks did take racing seriously.  Menelaus, who had form for sulking, told a competitor ‘You’re the most appalling driver in the world’.  Well, that is the prosaic Penguin translation.)

If we move forward about 1200 years to Constantinople under Justinian, there is one big change – the Greeks drove their own chariots; the Romans were spectators, while professionals drove for them.  It is rather like the distinction between gentlemen and players in English cricket – or the Mille Miglia in Italy (which sported lady drivers about a century ahead of its time.).  And the infamous tribal conflict between the ‘blues’ and the ‘greens’ in Byzantine Constantinople created civil strife that bordered on civil war.

Every law, either human or divine, was trampled underfoot; and as long as the party was successful, its deluded followers appeared careless of private distress or public calamity.  The licence, without the freedom, of democracy, was revived at Antioch and Constantinople, and the support of faction became necessary to every candidate for civil or ecclesiastical honours.

It all makes our Blues v Maroons or the UEFA Cup Final look very tame, indeed.

It is sad that some people on either side of the divide between theatre and sport look askance at the others.  Both involve people in the community coming together in pursuit of happiness and an element of ritual that each side finds pleasing.  It is at best idle and at worst presumptuous to purport to measure the talent or skill or courage involved in the several forms of endeavour.  Each has its own champions, myths and lore.  And each serves purposes far above what Marx sniffily called the ‘opium of the masses.’ 

It is hard to avoid the notion of snobbery when looking at how those going to hear Wagner turn their noses up at those going to the footy – which is also the case when rugby followers are candid in their views about rugby league.  For that matter, there is little other than snobbery involved in those who go to hear Cosi fan tutte looking down on those who prefer Phantom of the Opera.  Or even Puccini.  Or Taylor Swift.

So, I will start with a field where the snobbery is more muted.

Writing and history

After about a year or so at Law School, it looked to me that the law course was not all that demanding, and that I could seek to improve my education by reading legal biographies and legal history, while coming to grips with the great novelists of France and Russia – and continuing to learn in both history and philosophy.  The way for me to get into a new area – like fly fishing, or red wine, or Formula I – is to read about those who made it.  (I recently undertook a similar exercise in a fad for vintage watches.)

When I started at the Bar and read with Daryl Dawson (later a justice of the High Court), he was a subscriber to the Mary Martin Book Club.  (‘Reading’ at the Bar involves sitting in the chambers of a barrister for six months so that you can try to learn from someone on the spot – it bears some resemblance to a live-in apprenticeship.) 

Mary Martin was a good source of books based in Adelaide.  This would become part of a kind of disease, from which I still suffer, of becoming an insatiable book buyer.  I would go on to amass a huge law library in the faith that it might be a good basis of investment.  I had a collection that was marvelled at and which gave me great assurance and pleasure.  But the computers would end all that – and create endless hazards of minefields of precedents and inducements to very average lawyers to lay out their ambitions on the World Wide Web – just one of many ill effects of that revolution. 

About the first book I got from Mary Martin was one by Somerset Maugham, Ten Famous Novels and their Authors – big hitters like Tolstoy, Balzac, Dickens and Melville.  I was horrified to see that I had not read one of the ten novels. 

I used to collect the great classics to read on vacations.  I was usually working at least six and a half days a week and most nights, so the great novels and histories were laid up for vacation.  (I insisted on five weeks off in summer and two in winter – at a time when I could and did put all work out of my reach for the whole of the vacation.  Email was unheard of.)  I made it my business to read the great novels – the big ones – at least two or three times.  They all become old friends – like favourite movies or operas. 

But I also tried to stay in touch with our writers – I have a hard-back of each novel of Patrick White, and I have read most of them twice, and Riders in the Chariot three times. 

The great novels for me are like history, philosophy, and theatre – they are utterly indispensable.  I do not entirely jest when I say that I read history for entertainment, and the great novels to see what makes the world tick.  It saddens me greatly that so many go through life without sharing treasure that is way beyond measure and without which I would be so much worse off.

Books have filled my life – reading them, and for the last thirty years, writing them.  Six of my books have been published in print.  They all dealt with the law, or how to think and write about the law.  Those that are published on Amazon/Kindle are mainly about history, philosophy, and literature.  Their number is embarrassingly high – north of thirty.  (To those who have trouble breaking into permanent print in Australia, the publishing scene can look both timid and incestuous.) 

While I was at the Bar for the first stint, I developed a very respectable library on legal history and a big collection of legal biography.  For a long time now, my reading has been divided about half and half between literature, mainly the novel, and non-fiction, mainly history and biography. 

The three most famous novels are, I think, Don Quixote, War and Peace, and Ulysses.  I have read each of those at least three times.  I have read all the major novels of the big hitters like Stendhal, Jane Austen, Balzac, Hugo, Flaubert, Dickens, Turgenev, Dostoevsky, Tolstoy, Melville, Joyce, Orwel,l and Greene. 

What has had more effect on me – the novel or history?  I don’t know.  If pressed to answer, I would probably say that history is in the end more fundamental to my intellectual engine room.  After all, the law is in large part just an extended lesson in history, and for the most part we should be talking about something real. 

I respect all good writers, because I have an idea of what is involved, but I have a special kind of reverence for the great writers on history and jurisprudence.  In addition to their talent for writing, they have the mantle of scholarship, and high learning is something greatly to be admired and valued.  For example, I look on people like Maitland, Holmes, Namier, and Bloch with something like awe.  Tina Turner was dead wrong – we need all the heroes we can get.  And learning that is well acquired might even bring wisdom.  And that is a proper object of reverence. 

As we will see, I have now written four books, each about fifty great books or subjects – a total of two hundred such subjects spread over four books.  Each volume is either in leather (at least in part) or slipcased, and about half have been rebound by my bookbinder, Helen Williams.  It has been a long and expensive process, but the final product represents the crown jewels of the house.  If nothing else, the four master volumes would be ideal for a long-haul flight to London. 

The great historians exert a great pull over the whole of the collection.  In order of appearance, including the jurists, they are: Carlyle, Thucydides, Macaulay, Bloch, Gibbon, Maitland, Namier, Tacitus, Mommsen, Hughes, Geyl, Manning Clark, Clausewitz, Burkhardt, Thompson (J M), Bury, Strachey, Bullock, Dixon, Huizinga, Lefebvre, Tawney, Lawrence, Holmes, Galbraith, Pound, Blainey, Armstrong (Karen), Maine, Maurois, Berlin, Holmes, Pirenne, Plutarch, MacCulloch, Reed, Haffner, Johnson, Pater and McCullough.  None of those is there under false pretences.  Each warranted an essay on what that author means to me. 

Carlyle, Gibbon and Macaulay obviously stand out for the fame of their styles.  I keep going back to them – The French Revolution of Carlyle at least nine times.  For me, it’s like putting your feet up before the fire with a Verdi opera and a good bottle of red. 

If I had to name five other writers on history who have supplied me with essential intellectual furniture, they might be Bloch, Holmes, Maitland, Namier and Pound.  Each of them by force of intellect and industry has earned the right to make large statements that command respect.  I would also make special mention of some other European historians like Geyl, Huizinga, Lefebvre, Mommsen and Pirenne – representing Holland, France and Germany. 

The teaching of history at Cambridge and Oxford may be a little too restricted and specialised at times.  Lawyers are used to comparing cases and stories.  For example, you can make a lot more sense out of what is called the French Revolution if you are properly familiar with the experience in England, America and Russia.  And you learn so much more from history when the story is well told.

My fixation on Runnymede – where the barons got King John to acknowledge the Great Charter, Magna Carta, in 1215 – seems to get stronger with time.  Sometimes I cross the Campaspe River and I wonder – I experience some kind of fantasy – about whether somehow its waters may have flowed down from Runnymede.  They certainly have done so metaphorically for me. 

There are times when I look at that portrait of Lord Mansfield that is held in the Athenaeum in Boston when I wonder if anyone has ever better captured authority, or what the Romans called gravitas or auctoritas.  That’s the thing about our laws – they are what might be called works in progress going back to the time that the Angles and Saxons walked out of the forests of Germany and crossed the water to the land that would be called England after one of their tribes. 

For our native predecessors here in this big land, the history – the dreamtime – is sixty thousand or so years longer.  Either way, there is an element of mystery or alchemy.  And that is so very precious. 

And if you look up at the heavens, the mystery becomes incomprehensibly vaster.  As wee saw, Kant said two things filled him with wonder – the starry heavens above and the moral law within.  He of course made his own contribution to history and what we know as the Enlightenment.  Even after the French Revolution, which he saluted, history sat lightly on him.  Kant held that that we should all have our own dignity simply because of our humanity.  That, as I have said, is enough bedrock for me to support morality. 

Some lines from history keep coming back to me.  Sir Lewis Namier: ‘Restraint, coupled with the tolerance which it implies and with plain human kindness, is much more valuable in politics than ideas which are ahead of their time; but restraint was a quality in which the eighteenth-century Englishman was as deficient as most other nations are even now.’  What other historian has spoken to us of ‘plain human kindness’? 

F W Maitland comes down to me as a kind of saint.  ‘The only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law.  I don’t think that the study of legal history should make men fatalists; I doubt it should make them conservatives.  I am sure it would free them from superstitions and teach them that they have free hands.’ 

Ranke was famous for another epigram.  Every age is ‘equally immediate to God.’  It is an insight into the eye of eternity – all ages are equal in the eye of God.  God is not subject to the constraints of time as we are.  The historian has to look at each period in its own terms. 

Another great German historian, Mommsen, was, like Shakespeare and Mozart, a master of the great throwaway lines.  About Gaius Gracchus: ‘On the very threshold of his despotism, he was confronted by the fatal dilemma, moral and political, that the same man had at one and the same time to hold his ground as a captain of robbers, and to lead the state as its first citizen – a dilemma to which Pericles, Caesar and Napoleon had to make dangerous sacrifices.’  That is word perfect. 

Burkhardt, the Swiss patrician, could be lethal about Italian arrogance in the Renaissance: ‘Amid all these preparations outwardly to win and secure fame, the curtain is now and then drawn aside, and we see with frightful evidence a boundless ambition and thirst after greatness, regardless of all means and consequences…In more than one remarkable and dreadful undertaking, the motive assigned by serious writers is the burning desire to achieve something great and memorable.  This motive is not a mere extreme case of ordinary vanity, but something demonic, involving a surrender of the will, the use of any means, however atrocious, and even an indifference to success itself.’  That for me is the shocking David of Michelangelo. 

Hippolyte Taine negated and reversed Michelet’s love of le peuple.  He called Danton ‘another second-rate lawyer’ and let another champion of the people have it with both barrels: ‘At the mere sight of Marat, filthy and slovenly, with his livid frog-like face, round, gleaming and fixed eyeballs, bold maniacal stare and steady monotonous rage, common sense rebels; people do not accept for their guide a homicidal bedlamite.’  The supreme charm of French historians is that you are never left wondering where they come from.  

What about this costume drama from Carlyle about the botched attempt of the royal family to flee Paris and the Revolution?  ‘But where is the Lady that stood aside in gypsy hat, and touched the wheel-spoke with her badine?  O Reader, that Lady…was the Queen of France!  Flurried by the rattle and rencounter, she took the right hand, not the left; neither she nor her Courier knows Paris…They are off, quite wrong, over the Pont Royal and River; roaming disconsolate in the Rue de Bac; far from the Glass-coachman, who still waits.’ 

So what?  I have read everything I can about these events, and Carlyle is the only one to mention this delay.  That delay might very well have been the reason that Louis XVI just failed to escape out of France to royal powers that would have given him the army to return and reclaim his throne.  The whole course of world history could have been so different had not a one-time German princess now French queen known much less about Paris street directions than I do.  Are we all just toys for God? 

But back to the law.  In The Game of the Law, Justice Cardozo said: ‘Skill is not won by chance.  Growth is not the sport of circumstance.  Skill comes by training; and training, persistent and unceasing, is transmuted into habit.  The reaction is adjusted ever to the action.  What goes out as effort comes back as character.  The alchemy never fails.’  As I said, I used to think that kind of stuff about ‘alchemy’ was moonshine, but I don’t now.  And perhaps my favourite quote from the long history of our law is the question of the Boston attorney for the U S Army to Senator McCarthy: ‘You’ve done enough.  Have you no sense of decency, sir, at long last?  Have you left no sense of decency?’  It is a line most lawyers would die for.  It never fails to lift my spirits

---

 [BS1]fee – or tax

 [BS2]OR fee (or tax)

When I read the account of the Swans ‘scandal’ in The Age on 20 August, I thought that the press had been grossly irresponsible.  It was full of pious utterances about oppression said to have been practised by one large group of the community.

It looked to me that the press conflated two issues.  First, the issue of a breach of AFL rules about ‘conduct unbecoming’ is very different from the issue of whether the conduct involved a breach of the criminal law – and will be dealt with under very different rules.  The players have conceded that they breached the rules, as I understand it, by bringing women to their rooms as they did.  On that inquiry, the behavior of the women does not matter.  Indeed, the rule is there because the behavior of the players can lead to just this kind of dispute.  But the behavior of the complainant will most likely be in issue in any criminal prosecution.

Secondly, it appeared from The Age that the police had been told that the players had been drinking and that two women were invited to their hotel sometime after 2am.  There was only one complainant.  ‘Her official version of events, which involves an act of touching beyond what was agreed, will form the basis of Victoria Police’s ongoing investigation’.  A second source said ‘five players were in a room with naked women, with one performing lap dances…. Heeney, who was clothed, was the subject of the complaint.’

Since then, the reporting of the press has in my view got worse.  It is I think notorious that scandal sells newspapers.  For ‘scandal’ the Compact Oxford English Dictionary has:

Behaviour or a situation regarded as wrong or unacceptable and causing general outrage; outrage or gossip arising from such behaviour: the media’s craving for scandal.

Well, Oxford got that right.

Wikipedia has:

A scandal can be broadly defined as the strong social reactions of outrage, anger, or surprise, when accusations or rumours circulate regarding a person who is, or persons who are, perceived as having transgressed a social norm in some way. These reactions are usually noisy and may be conflicting, and they often have negative effects on the status and credibility of the persons or organizations involved….. Contemporary media has the capacity to spread knowledge of a scandal further than in previous centuries and public interest has encouraged many cases of confected scandals relating to well-known people as well as genuine scandals relating to politics and business.

Now The Guardian haspublished a most enlightened piece by Rana Hussein, who is involved in sports administration. She pointed to the distinction referred to above between a breach of club or AFL protocols and a breach of the criminal law, and she asked the question: What happens if no charges are laid by the police?

Before you pass judgment, it helps if you identify what you are passing judgment on – and, above all, it helps if you have heard the other side.  It also helps if your thinking is not warped – prejudiced – by a firmly held ideological conviction in what some call ‘identity politics’.  It also helps if you are not ready to cast others aside to save your own face.  Especially if you are in an industry that lives off the earnings of gaming.  And is served by a gullible and greedy press.

As our greatest jurist, Sir Owen Dixon, observed: ‘Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told…’  In a well-known case on the standard of proof in civil cases, Sir John Latham referred to the common sense of an old English text – ‘Men will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him…’

The NRL requires players charged to stand down.  I do not agree – not least because our criminal justice system is broken.  Such a ruling obliterates the protection of the presumption of innocence, which is a cornerstone of our whole justice system, and puts the interests of the organisation above the rights of the individual, which is a hallmark of those regimes we least admire.

There would be very tricky issues in any civil case arising from the allegations referred to in the press as set out above.  What is the legal basis of the claim?  What share of responsibility is down to the strippers and their managers?  Who runs that outfit?  Who takes what on deals like this?  What was the harm caused by any wrongful conduct?  What kind of compensation might be appropriate? 

I see no basis for alleging liability of the club, and if proceedings issue in the Supreme Court, I would hope it sends them to a lower court.  The Magistrates Court can award damages up to $100,000, I am told, and no one could get near that here on what is set out above.  Which adds interest to the question of what part of the cake, if any, might be set aside for the lawyers.

‘Sordid’ is the word.  All round.  But make no mistake, five young men are being punished beyond measure, both financially and in their standing in the community, when all that is clearly open on the evidence so far is that they acted stupidly in going out, getting drunk, and dealing with strippers. 

If we were to hang people in this country for being stupid, there may not be many of us left standing.  And this comes to you from a retired lawyer who had to confess at his admission to practise law that while he was a student at Law School, he was thrown into the slammer for the night for giving the coppers some lip when he was as full as a state school.  (It was OK – my folks were away and they did not get to hear about it until I was admitted.)  Have these Swans been any more stupid than I was? 

Or has anyone been more sordid than those ghastly affairs half a century ago, when all the boys at a bucks’ night got full before a stripper arrived with a goon bodyguard and degraded our humanity, so that we all went home, quite probably behind the wheel, bashfully craving a shower to cleanse ourselves of our own beastliness?

Yes, sordid is the word.  Those wishing to put down these young men might, irrespective of their faith, might ask who is fit to cast the first stone.  Helen Garner wrote a book about it.

Finally, in my fifty years or so in the law, I devoted a lot of my practice to acting for or against the press – including thirty years on retainer for the ABC.  I have a very clear view about who holds the balance of power.  I also got used to feeling that I was kicking into a stiff breeze whenever I got before a judge appearing for the press.  Its treatment of this scandal affords me a clear view of the wariness that our judges feel about the press.   They, too, are only human – both  the press and the judges.

The press has been grossly irresponsible – not least the front page of The Age today.  Jonathan Horn said parts of the press have been ‘reptilian’.  It is full of pious utterances about oppression said to have been practised by one large group of the community.  Since we know hardly anything about events of interest to the police, I will only mention two matters.

First, the issue of breach of AFL rules about conduct unbecoming is very different from the issue of whether the conduct involved a breach of the criminal law – and will be dealt with under very different rules.  The players have conceded that they breached the rules, as I understand it, by bringing women to their rooms as they did.  On that inquiry, the behavior of the women does not matter.  Indeed, the rule is there because the behavior of the players can lead to this kind of dispute.  But the behavior of the complainant will most likely be in issue in any criminal prosecution.

Secondly, it appears from The Age today – reporting based on unnamed sources – that the police have been told that the players had been drinking and two women were invited to their hotel sometime after 2am.  There is only one complainant.  ‘Her official version of events, which involves an act of touching beyond what was agreed, will form the basis of Victoria Police’s ongoing investigation’.  A second source said ‘five players were in a room with naked women, with one performing lap dances….Heeney, who was clothed, was the subject of the complaint.’

I will leave comment on the forensic issues to those who practise in this part of the law, and as an eighty year old father of two daughters, I will  refrain from expressing any view on the events so described.

For all I know, the players might see themselves in a position like that mad old king who thought he was a man more sinned against than sinning.

And the Governor General might keep her views to herself.  On the advice of which Ministers did she enter a fray which would be far beneath the dignity of the Palace?

The note below, The Promised Land, was, I think, published before the tragedy at Bondi.  When the Royal Commission was set up, some had misgivings.  Where would the appointed civil servants be able to draw the line? 

Of late, that problem has flared up.  Protagonists on opposing sides have sought to use the Commission to score political points.  It is not right that an inquiry into a national tragedy, that is mired in ancient international conflicts and blood feuds, should become a petty party-political spat.  This polity of ours deserves better. 

I gather that Josh Frydenberg is agitating on behalf of his political party, while also representing those with an acknowledged interest in the working of the Commission.  He must know that the interests of those two groups are different.  He is therefore in a position of a conflict of interest.  In my view, he is very wrong to act in this way.  He should know better.

And I see that those who set up the Commission foresaw this kind of problem.  The Letters Patent requires the Commission to ‘ensure the inquiry is conducted in a professional, impartial, respectful and courteous manner, including appropriately managing any actual or perceived conflicts of interest.’ 

That ordinance might show an abundance of caution, but it is more than enough for the Commission to tell Mr Frydenberg to get on his bike.

And that goes for his canaries and the usual suspects in the press.  For a price, they give new meaning to the word drivel – or, if you prefer, bullshit.  This is then another sordid instance of the death throes this mob have been undergoing for a generation.  Yet it comes while some among us are suffering real pain for events beyond their control or responsibility.  The malcontents should be ashamed of themselves.  When you are a loser, it is better to go quietly.

The Promised Land

Whether the promisor is Almighty God, or His Majesty King George III, promising land to a select few is at best problematic if other people are in settled occupation and enjoyment of the land.  Where do they go now?

But it gets worse when God and ethnic distinctions are involved.  Where one group sees its members as different to those of another, they rarely think they come out of it as the worse off.

So much is clear from the history of Canaan, Australia, and Palestine. 

Since the discussion of any of these is fraught in Australia just now, I will pass over it in silence, and leave it to others.

The following texts command varying assent depending on where in the world the reader is standing.

But of the cities of these peoples which the Lord your God gives you as an inheritance, you shall let nothing that breathes remain alive.  But you shall utterly destroy them: the Hittite and the Amorite and the Canaanite and the Perizzite and the Hivite and the Jebusite, just as the Lord your God has commanded you, lest they teach you to do according to all their abominations which they have done for their gods, and you sin against the Lord your God. 

Deuteronomy 20:16-18

And when Joshua and all Israel saw that the ambush had taken the city, and that the smoke of the city ascended, then they turned again, and slew the men of Ai.

And when Joshua and all Israel saw that the ambush had taken the city, and that the smoke of the city ascended, then they turned again, and slew the men of Ai.

And the other issued out of the city against them; so they were in the midst of Israel, some on this side, and some on that side: and they smote them, so that they let none of them remain or escape.

And the king of Ai they took alive, and brought him to Joshua.

And it came to pass, when Israel had made an end of slaying all the inhabitants of Ai in the field, in the wilderness wherein they chased them, and when they were all fallen on the edge of the sword, until they were consumed, that all the Israelites returned unto Ai, and smote it with the edge of the sword.

And so it was, that all that fell that day, both of men and women, were twelve thousand, even all the men of Ai.

And Joshua burnt Ai, and made it an heap for ever, even a desolation unto this day.

For Joshua drew not his hand back, wherewith he stretched out the spear, until he had utterly destroyed all the inhabitants of Ai.

Only the cattle and the spoil of that city Israel took for a prey unto themselves, according unto the word of the Lord which he commanded Joshua.

And Joshua burnt Ai, and made it an heap for ever, even a desolation unto this day.

Joshua 8:24-30

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and, as it were, the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Gibbon, Decline and Fall of the Roman Empire

Fight against those who have been given the Scripture and believe not in Allah nor the Last Day, and forbid that which Allah hath forbidden by his messenger, and follow not the religion of truth, until they pay the tribute readily, being brought low.

And the Jews say: Ezra is the son of Allah.  And the Christians say: their Messiah is the son of Allah.  That is their saying with their mouths.  They imitate the sayings of whose who disbelieve of old.  Allah himself fighteth against them.  How perverse are they?

They have as lords beside Allah their rabbis and their monks and the Messiah son of Mary, when they were forbidden to worship only one god.

Koran, Surah IX: 29 -31

Long before the rise of Babylon and Athens, the early Australians had impressive achievements.  They were the only people in the world’s history to sail across the seas and to discover an inhabitable continent.  They bred a brave procession of coastal and inland explorers; they were brown Columbuses, Major Mitchells, and even Dr Livingstones, I presume.  The aboriginals who occupied Australia also found, over a long stretch of time, many edible plants, valuable mines which they worked, new medicines and drugs, manufacturing techniques, and a miscellany of resources ranging from the raw materials of their cosmetics to the hidden pools of water in deserts.  They succeeded in adapting their ways of life to harsh as well as kind environments; and several large regions of Australia supported more people in ancient times than they have supported in recent times….

Europeans were now about to enter Australia.  The contrast between the ways of life of the British Isles and the Aborigines was almost the most dramatic contrast in the world.  The British brought so many ideas and goods which Aborigines could not begin to imagine.  They brought all the results of the 10,000-year-old neolithic revolution and they also brought the first results of the new industrial and scientific revolutions.  They brought sheep and shears, horses and harnesses, cattle and pigs, and a variety of dogs and cats.  They brought fruit trees, and tropical and temperate vegetables unknown to Aborigines.  They brought fences and carts and large permanent houses and ocean-going ships.  They brought an ability to distil spirits, brew beer, and make wine, hazardous activities in a continent where alcohol was virtually unknown.  They brought skills in weaving wool, in making linen and leather.  They brought the art of writing and printing, of keeping accounts, of hoarding information in books and food in barrels, kegs and sacks.  They brought thousands of laws, all devised more than 20,000 kilometres away.  They brought firearms, not of high accuracy, but demoralising when first seen and felt……Here was an utter contrast in peoples, for they spoke very different languages, had very different histories, religions, and contrasting attitudes to property plants and livestock.  In their use of the land and technology they were ages apart: in short, even with goodwill on both sides they were incompatible.

Geoffrey Blainey, The Triumph of the Nomad

The basic elements of the Imperial Problem during the American Revolution must be sought not so much in conscious opinions and professed views bearing directly on it, as in the very structure and life of the Empire; and in doing that, the words of Danton should be remembered – on ne fait pas le procès aux revolutions.  Those who are out to apportion guilt in history have to keep to views and opinions, judge the collisions of planets by the rules of road traffic, make history into something like a column of motoring accidents, and discuss it in the atmosphere of a police court.

Sir Lewis Namier, England in the Age of the American Revolution

The God has not been invented who could even dream that any of such issues can be solved by mortals, and many would be happy if we had never invented any God at all.

PS

In another note, written many years ago, I said this after the references to the Koran.

A painful doom awaits those Jews and Christians, or at least some of them. Both Jewish rabbis and Christian monks are accused of devouring the wealth of mankind and hoarding. They are given tidings ‘of a painful doom’. They are to ‘be heated in the fire of hell, and their foreheads and their flanks shall be branded’. Elsewhere the injunction is expressed simply as ‘slay the idolaters wherever ye find them, and take them (captive) and besiege them, and prepare for them each ambush.’

But to return to here and now, it may be that murder is the only crime that is worse than driving people off their land.  The person guilty of the first murder, we are told, was punished by being driven off his land.  We know all about that here in Australia.  The most real attempt to atone for that wrong was thwarted by crude political manoeuvres of the party of Mr Frydenberg and its press sponsors and drivers.  And the former member for Kooyong now wants to present himself as the champion of the oppressed.  The word is chutzpah.

Each of the six books I have published commercially was put out by one of a quartet of commercial publishers.  One was Australian Scholarly Publishing.  It is now preparing the three books referred to below. 

At my age, longevity is not on the menu, and I will be limited in my contribution to the process.  Feel free therefore to spread the news. 

I set out below the blurb and Foreword for the three books and I will publish extracts later.

The War against Humanity

The Decline of Courtesy and the Fall of Dignity in Government and Business

Blurb

Are you afraid?  Do you trust government or business?  Do you ever get to speak to a sensible person?  Some corporates pay their chiefs fifty times those left under them – the fewer, the better.  An essential arm of government, the professional civil service, died two generations ago.  We are the playthings of robots and inured to discourtesy and inhumanity.  Inequality brings inequity.  1984 came generations before the AI fission that now threatens us.  Quo vadis?

Foreword (Extract)

The principle of humanity

In 2018, a Boeing aircraft for no apparent reason plunged to the earth killing all on board. Less than a year later, another Boeing of the same model suffered the same fate. More than three hundred people died in these crashes. In each case, the fault was found to be a failure in the computerised mechanisms that resulted in the pilot’s not being [BS1] able to override the robot driving or flying the plane. Boeing struck a deal with regulators and was then prosecuted for fraud for reneging on it. So, with the guidance of Groucho Marx, they struck another deal.

These frightful tragedies made headline news all around the world. And yet all of us in our everyday life continually suffer every day because people we deal with hide behind, and cannot or will not override, robots. Our very humanity is being challenged and undermined in almost everything we do.

We are in truth facing a war against humanity – and the hideous revenge of the robots.

We that were once young chatter about a movie that was made shortly before we babyboomers arrived, and which we have seen so often – Casablanca. What is the secret of its aura or alchemy? And what is it about so many of those on the screen that continues to enchant us – to put us under their spell – again and again?

It is clear enough with Ingrid Bergman, and her provoking veneer of propriety – the hats are just a bonus. But plain Humphrey Bogart? Just what is it that sets him so far apart – and so much higher than the rest?

Well, he is not afraid to show us when he is hurt. You have to see it on the big screen to catch the look of white terror in his eyes when Ilsa walks back into his life at Rick’s in Morocco. This is very high theatre, indeed. It’s the kind of look the Commendatore could have extracted from Don Giovanni. 

And there is something else. Bogart looks like he takes the trouble to think. Perhaps that’s what gets us in. He thinks. And he feels. The great man is, after all, human – just like the rest of us. The tough guy is in fact vulnerable. And the woman is downright sexy as well as being sublimely beautiful. If there were any robots in Casablanca, they came in Nazi uniforms, or from the usual suspects.

The Adversarial Trial

Gone with the Wind

Blurb

At common law, juries decided issues of fact and the stronger case won.  Under the inquisitorial mode, a dossier is compiled, and the judge inquires into a kind of truth in a massive judgment.  The result resembles a sandpit for the rich and infamous.   A veteran lawyer looks at the lack of courage in the profession to accept responsibility.  This book is not just for lawyers, but Justice Nettle says it should be essential for those aspiring to the Bar.

Foreword

This book is about how to practise law in litigation.

The five papers in this book come from different phases in a lifetime spent in the practice of our law.  That time now spans more than half a century.  I spent it as a barrister or solicitor – I have never been too fussy about the distinction – with more than thirty years presiding over statutory tribunals on a sessional basis.  My professional life was seasoned with many enlivening sojourns at the universities of Cambridge, Harvard and Oxford. 

For the last twenty-five years or so, my focus has been on analysis and writing about the law or related issues in its history, literature, and philosophy.  I have done so in far too many papers and books (of an embarrassingly large number).  This used to be called jurisprudence, but the time of the jurist has passed.

I have therefore seen the practice of the law from many angles – including a time in 1985 drawing a bill for an act of the Victorian Parliament to regulate lawyers’ fees (which the lawyers persuaded John Cain to drop before I got run out of town).

There is a theme common to the five papers.  It is the failure of our profession to deliver fair and timely justice.  This comes from a lack of experience and a failure of nerve.  As a result, it would be tart to say that our sovereign is in breach of his obligation not to sell, or to delay or deny justice – tart, but not unfair or wrong.  And Magna Carta is still part of our law – what might be called a ‘sovereign’ law.

The citation from the end of King Lear gives the reader what auctioneers call ‘Fair Warning’ that you are entering the zone of a Grumpy Old Man – and I know what fate awaited that Grumpy Old Man.  (It was only partly foreseen in Hamlet.)

But I do think that we as a profession have been far too lax, at least in the civil cases discussed here, in dealing with symptoms of a very obvious decline in the way that we discharge our professional obligations to the people whom we have the honour to serve.

Trial by jury in civil actions has all but gone from our common law in my lifetime, as we have veered toward the Roman or European model of inquisitorial dossier – or docket.

And a prime reason for the decline in the practice of our law is our failure to teach and learn the history of that law – which is just history in a phase of momentary arrest.

Another reason is the failure to apply the basic laws of evidence – that embody logic, fairness, and common sense.  No-one should be appointed to hear and determine legal issues until these rules are second nature.

I apologise for the repetition in these papers.  My bad form on these subjects is contained in the previously published papers referred to near the end of the Notes to this book.  In addition, I think the Victorian Bar News published a censored version of the paper on The Law of Evidence – as I recall it, a gaggle of editors thought I was insufficiently respectful of the Bench.

In my view, my generation has badly let down those following us.  I fear for my grandchildren and children even.  I don’t think we have done as much for them as our parents did for us.

The Pursuit of Happiness

Staying Afloat in a Profession

Blurb

Not many go to God wishing they had spent more time at the office.  A seasoned professional looks at how to build a platform for life around a profession.  The curse of technology allows us now cheaply to furnish our spirits with the fruits of civilization – literature, music, the drama and communion of sport, art, the cellar, the kitchen, the bush, and the world.  Sense and sensibility.  If you’re just there for the money, you’ll go mad.

Preface

The great German historian Theodore Mommsen richly enjoyed life both inside and outside the academy.  He wrote prolifically, but that did not stop him siring sixteen children.  He is one of those scholars who had done all the hard work at the bottom – so that when he pauses to make a large observation, we listen to him.  He knew what it was to get fulfilment in large if not equal measure at both home and at work. 

In his magisterial History of Rome (which brought him a Nobel Prize), Mommsen said:

When man no longer finds enjoyment in work, and works merely in order to attain enjoyment as quickly as possible, it is a mere accident that he does not become a criminal.

If you work mainly for the tax man or the bank manager, you will learn the sad truth memorably stated by an English philosopher that the life of man may be ‘solitary, poor, nasty, brutish, and short’.

Publishing a book on your personal philosophy may not be a good move in Australia.  Nor would it do to publish one under the title of one chapter of this book – ‘What I believe’.

But I have been allowed to lead a full life both within my profession and outside it, and I want to try to pass on some of that good fortune.  It may help others struggling to maintain what is called ‘life balance’ if I set out what I see as the reasons that my luck still holds.

I have written the book for anyone trying to get where they want in a profession or business while becoming more fulfilled elsewhere, but the material may be of use or interest more generally.

After a discussion of what is entailed by membership of a profession (which draws heavily on a chapter in The Making of a Lawyer, Hardie Grant, 2008), there is a chapter on my underlying beliefs, and a chapter each on the furniture of the mind and life outside the profession.  The final two chapters illustrate underlying themes – something like what used to be called a ‘commonplace book.’

I am suspicious of business plans, and even more suspicious of ‘life projects’, but there is something to be said for taking time now and then to reflect on what it is all about.  We should in my view proceed on the footing that we only get one go at this, and the old saying was that you will not hear someone on their deathbed saying ‘I wish I had spent more time in the office.’

I have been fortunate.  The law is just history in a state of mild arrest.  It requires stabs at prediction after logical analysis and a sniff of the zeitgeist.  Then you try to find the point and express it.  Then there is the drama of the contest.  So, all the strands of my interests, training, and experience come together.  Shakespeare is a good example.  As is test cricket.  Or Gibbon.  Not many people are so lucky.  

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When discussing egotism and Donald Trump, I referred to the writing of Pieter Geyl, a Dutch historian I greatly admire, in discussing the kind of person who does not show sympathy for any others.  Geyl wrote a book – in part while imprisoned by the Nazis – Napoleon: For and Against.  One thing about French historians is that you rarely wait more than a page or two before learning where they stand.When discussing egotism and Donald Trump, I referred to the writing of Pieter Geyl, a Dutch historian I greatly admire, in discussing the kind of person who does not show sympathy for any others.  Geyl wrote a book – in part while imprisoned by the Nazis – Napoleon: For and Against.  One thing about French historians is that you rarely wait more than a page or two before learning where they stand.

Michelet reveled in the ‘People’ and saw in Napoleon a ‘mere self-seeking adventurer, the betrayer of the Revolution, and of the peoples.’  For good measure, he accused Napoleon of cowardice.

Taine came from a radically different position.  He was no friend of ‘the people’.  This is was what Geyl says was Taine’s view of Napoleon.

The complete egoist is a solitary being, irretrievably cut off from his fellow men.  He is self-insulated against all spontaneous feelings of sympathy, admiration or pity…. So intense is his egoism that he is unable to conceive of any other driving force in other men.  This great realist is morally blind, and his scorn for men leads him into stupid blunders…. He surrounds himself with servants instead of collaborators.  If someone inclined to independence compromises himself in his service…. he rejoices at the greater hold over the man this will give him.  Napoleon demands the performance of turpitudes…. He can see men only as instruments.  He hounds on his ministers, his generals, his officials, even his puppet kings, his brothers, like a slave-driver.  His harsh commanding voice easily takes on the accents of brutality, even of a refined cruelty.  He wounds, he humiliates, he tries to break spirits.  The lot of those nearest to him was far from enviable.  Strict etiquette and a tone of eternal constraint prevailed at the court.  Everyone trembled before the master, who could not cease, even for a moment, to be a master.

That describes any degenerate Roman emperor; that moral train wreck called Donald Trump; and any man utterly unfit for any form of public trust.

Later Geyl gives the views of Mme de Rémusat, which are very similar to those of Mme de Staël. …. he was completely heartless, without any spontaneous human feeling, nothing but self-love and accomplishing all his works in a whirl of egoism and crafty calculation…. So conscious of these qualities in himself that he measured all others by the same standard, thus committing the greatest psychological errors.  He was quite unable to believe in disinterested charitable action.  If he was forced to admit their existence, he only despised the doer, doubly despised him, for he started with a low opinion of mankind in general….

There is, someone said, nothing new under the sun.