Here and there – How taxing it is

[This is very long and difficult in parts, but there are many conflicting views out there, and it is hard to find a logical account of the relevant law and the proposed changes to it.]

Part I

If I shine shoes for a living – that is to say, for money – the law says that the income I derive will be taxed.  The tax is called income tax.  If I pay someone to do the shoe shining, or a buy a shoe shining business, the law says that any profit I derive will be subject to income tax.  The people that I pay to shine the shoes will have to pay income tax.  What I pay them is part of the cost of the business.  But the profit of the business is subject to one tax only.  I am the only person getting the benefit of the profit, and I am the only person who pays tax on the profit.

But the position is different if instead of my employing people in my business, I incorporate the business – that is to say, if I form a company to conduct the business.  The position is different because the law imposes income tax on the company for any profit that it makes.  Any profit that is passed on to those who own the business of the company – the shareholders – is arrived at after making allowance for the payment of the corporate tax.  If the company then distributes the after tax profit to shareholders in the form of dividends, the law says that those dividends are income in the hands of the shareholder.  As income they are liable to the personal income tax of the shareholder.

Since that personal income is only derived after allowing for the corporate tax paid by the company, the shareholder’s income has been twice reduced by a liability to income tax, the corporate and the personal taxes.  This leads to unhappiness and a sense of unfairness.  (Of course, big businesses, like BHP or Telstra, result in myriads of other taxes being paid – the income tax of the employees, payroll tax, sales taxes on plant and machinery, and so on, but we can put all that to one side.)

In a book about superannuation, which is still in preparation, I said:

Prior to the Hawke/Keating government, investors in shares in companies had been subject to double taxation.  Prior to declaring a dividend on its profit, a company has paid corporate tax on that profit.  The corporate rate is 30%.  Then the dividend was taxable as income in the hands of the shareholder.  If he or she was paying tax at 50%, they had lost at least 80% of the value of the return on their investment as a result of this double taxation.  The government legislated to ensure that the taxpayer only paid the one amount of tax. 

But the government went further for dividends received by superannuation funds.  The law says that if a super fund receives a dividend from a company that has paid the company tax, and issued the dividend ‘fully franked’, the fund will get a credit for the tax paid by the company. 

The result is that you add about 30% to the value of the dividend in your hands.  6% becomes 8% (rounding off.)  While you need to be careful about allowing tax considerations to dictate how you do business, you need to bear this treatment of dividend income of super funds firmly in mind.  This is no mere wheeze.  This law is fundamental to the way that this nation has legislated for its future.  It does for example bear on the attraction of foreign equity.  European and American companies traditionally return much lower dividends than Australian companies – and you do not get the benefit of these tax credits.

As I follow it, and the thread is not easy to pick up, the relief from double taxation in the first place was limited to a credit on tax otherwise payable by the person receiving the dividend (provided, of course, that the dividends were issued ‘fully franked’).  Then a government of a different colour (that of Howard/Costello) changed the law, in the year 2000, to allow for cash credits to be paid to super funds that had no income tax to pay.

There is now a proposal by the other party – the one that introduced the reform – to take the law back to that made by made by the Hawke/Keating government and to stop allowing the payment of cash credits.  The Howard/Costello changes have been broadly criticised, if not condemned, as a profligate buying of votes in the form of what is called middle class welfare during boom times, and that it is time the government stopped paying perks that we no longer afford.  I can follow all that, but the proposal, as it seems to me, is open to the following observations.

First, if the object is to save revenue, which the government can then redistribute, then the people taking the hit will be those earning less rather than those earning more.  This is because the whole point of the change is to stop paying cash refunds to those who earn less than the fundholders who can apply refund credits to income they otherwise earn.  If that is right, it is an unusual exercise in redistribution to commence by putting a burden on those who receive less than those who are better off.  I refer to what Alan Kohler said in The Weekend Australian.

But the problem is that conceptually, there is no difference between cash not paid and cash received, to the party at either end; franking credit cash refunds are not a loophole but an equalisation, between those who pay 30 per cent tax or more and those who happen to pay less, mainly because they earn less.  Drawing a line between the elimination of tax that would otherwise be paid but is not because 30 per cent tax has already been paid on that money, and rebating it as cash refund is arbitrary, illogical and discriminatory.

In the same paper, Terry McCrann said:

In terms of the structure and integrity of imputation, it is irrelevant of whether the credit is less than or exceeds any other net tax payable by the shareholder.  More simply, the company has paid ‘too much’ tax on behalf of those shareholders with marginal rates of less than 30 per cent.  The refund is effectively exactly the same as normal refunds of too much personal tax paid by a taxpayer.

Is the answer to those objections that if the person receiving the dividend does not have to pay tax on it, then the issue of double taxation does not arise for that taxpayer on that dividend – and the cash refund has been paid to deal with an anomaly or inequity which in truth does not exist?  The revenue is boxing at a shadow.  The Latin phrase is cadit quaestio (the issue does not arise, or is dead)To go back to my starting sample, if I do not pay tax on the dividend I receive from the shoe shine company, there is no double tax for me to be relieved of.  That is why this proposal hits lower earners.

This is how Judith Sloan seeks to explain the argument for the Howard/Costello change to the law in The Australian.

If an individual earns more than $180,000 a year, the marginal income tax is 47 per cent, including the Medicare levy.

When that individual receives dividends from a company issuing fully franked dividends, the tax on the dividends is 17 per cent – 47 per cent minus the 30 per cent already paid.

When an individual earns less than $18,200 and pays no tax, then the individual receives a cash refund of 30 per cent.  This is only fair.  Without cash refunds, the effect on very low income earners would be a tax on 30 per cent of dividends.

I cannot follow that.  All income received as dividends is subject to 30 per cent tax.  If the dividend is not taxable in the hands of a taxpayer because he or she earns so little, that taxpayer needs no protection from double taxation.  The payment has only borne tax once.

My problem may be with the link to imputation.  I am familiar with the notion of a ‘progressive tax’, but to frame a law predicated on the need to look after those who are not so well off looks to me to come dangerously close to what some call ‘identity politics.’  A state-acquired El Dorado is not something we associate with The Australian.  It could lead to heart attacks at the IPA, and a call-out of the Minutemen at the Tea Party.  Just think of it – in the name of ‘equity’ or ‘fairness’, the government gives away money to those investors who have made less profit than others.  This would have brought tears to the eyes of the late Californian oligarch Chief Justice Rose Bird or a Russian oligarch wolfing down his black caviar in Siberian exile.  Nor should we forget that the word ‘imputation’ is itself pregnant with fiction – it is as intellectually respectable as ‘deemed’ – or ‘derivative.’

[To be continued.]

Passing Bull 140 – Bull about reform


The word ‘reform’ is loaded, and not just in the political context.  The Oxford English Dictionary says ‘To amend or improve (an arrangement, state of things, institution, etc.) by removal of faults or abuses.’  The word ‘amend’ has to be read with ‘by removal of faults or abuses’, and the ‘removal of faults’ must be read to include ‘rectifying omissions.’

So, there are two things involved – change, and improvement.  There is rarely doubt about the fact of change, but there is often argument about whether the change is for the better.  One of the most significant legislative reforms came in England with the passing of the Reform Act, 1832.  We now know that this reform paved the way for democracy, which was unthinkable then, and we believe that if the opposition to it had prevailed, there may well have been a revolution.

There is I think a general agreement now that changes to the law introduced by the Hawke and Keating governments relating to taxation, currency, and superannuation effected real improvements, and were therefore real reforms.  But it is not easy to think of many other reforms in our recent history.

We have just seen another example.  The federal opposition just announced a proposal to change part of the law dealing with double taxation of dividends in the hands of shareholders.  The relevant law formed part of the reforms of Mr Keating.  The proposed changes just announced can obviously be rationally defended as being required to make the law work better.  That would mean that the change would amount to a reform – and Mr Keating was reported to have said that it was.  But you could just count the minutes before a political hack used the term ‘tax grab’, usually with the epithet ‘brutal’, and wheel out a worthy couple of retirees who have structured their life savings on the faith that government will not then change the rules to make them worse off – the phrase is ‘shift the goalposts.’  For these people the proposed change is for the worse, and not for the better.  It is anything but a reform.  And they have a point.  They have invested in good faith relying on representations from both parties that government will respect their investments and leave them alone.  Taking away an ‘entitlement’ is far more threatening than offering a chance of another.

We see this problem all the time.  One example is tuition fees for university students.  These fees were put up as reforms – but not for the student being saddled with $100,000 debt – for fees imposed by politicians most of whose graduate members had not had to pay a cracker.

The Reformation at least began about reform.  In his History of the Reformation in Germany, Leopold von Ranke said:

No man, to whatever confession he may belong, can deny, what was admitted even by the most zealous Catholics of that day; viz. that the Latin church stood in need of reform.  Its thorough worldliness, and the ever-increasing rigidity and unintelligible formalism of its dogma and observances, rendered this necessary in a religious view; while the interference of the papal court, which was not only oppressive in a pecuniary sense, by consuming all the surplus revenue, but destructive of the unity and independence of the nation, made it not less essential to the national interest.

But while reform was essential, a schism, or split, was not.  Ranke said:

Public order rests on two foundations – first, the stability of the governing body; secondly, the consent and accordance of public opinion with the established government…..But when the constituted powers doubt, vacillate and conflict with one another, whilst at the same moment, opinions essentially hostile to the existing order of things become predominant, then, indeed, is the peril imminent.

That proposition is pregnant for our time, and we will come back to it.  But what happens when the reform movement hits full swing?

… is not in human nature to rest content with a moderate success; it is vain to expect reason from a conquering multitude….for the most part they were goaded by long-cherished hatred and lust for revenge, which now found vent.

We see that all the time. Some see a bit of it now in the #MeToo movement.  The Germans’ political dam threatened to burst.

It was now taught that as all were children of one father, and all equally redeemed by the blood of Christ, there should be no longer inequality of wealth or station.

Well, that was at least three centuries ahead of its time (although we may be due for another explosion about inequality.)  That was the way of the Peasants’ War, and a dint in the democratic glow of Martin Luther.

There were also consequences that were not foreseen.

By rejecting celibacy, they [the clergy] secured a new influence over the mind of the nation.  The body of married clergy became a nursery for the learned professions and civil offices; the centre of a cultivated middle class…..In the year 1750, Justus Möser reckoned that from ten to fifteen millions of human beings in all countries and regions of the globe owed their existence to Luther, and to his example, and adds, ‘A statue ought to be erected to him as the preserver of the species.’

That’s a diverting proposition, but if Ranke is right about ‘the centre of a cultivated middle class’ in Reformation areas – such as Germany, Holland and England – that may go some way to explain the difference in political maturity between the nations of northern Europe and southern Europe.

But to return to what Ranke said about the breakdown of public order, it finds a curious echo in in the Bagehot column of last week’s Economist.

The biggest threat to British institutions, however, comes from a growing sense that democracy has let people down.  Stephen Holmes of New York university points out that liberal democracy is ‘a time-tested system for managing political disappointment’ – once you’ve lost patience with the existing elite you can vote them out.  But disappointment is surging, at a time when democracy’s ability to manage disappointment is declining…..The proportion of Britons who support a ‘strongman leader’ has increased from 25% in 1999 to 50%.  The under-25s are much more critical than people of the same age were two decades ago.  It is too early to head for the exits….But anyone who doesn’t know where the exits are is a fool.

If you believe that a decent ‘strongman leader’ is a contradiction in terms – and we are daily given countless repellent examples – then this trend is very scary.  We may in truth need major reform.




[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 18 The numbers; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]


The horror

[Warning: This chapter is gruesome and it may well cause distress in the reader.]

The surreal nature of terror is part of the horror of it.  An old widow who had been ‘Madame L’Etiquette’ to Marie Antoinette had been writing in her senility long letters to the Virgin Mary on the subject of protocol in Heaven.  They were answered by her confessor who signed himself Mary, but who on one occasion committed on her behalf a mistake that led the Duchesse to comment:  ‘But then one ought not to expect so much of Her.  She was after all only a bourgeois from Nazareth.  It was through marriage that she became a connection of the House of David.  Her husband, Joseph, would have known better.’  That old woman was put under the guillotine.

One survivor of the frightful eruptions known to history as the September Massacres recalled that some used to watch the butchery so as to try and learn how to die with the least pain when their turn came.  Carlyle said: ‘Man after man is cut down; the sabres need sharpening, the killers refresh themselves from wine-jugs.  Onward and onward is the butchery; the loud yells wearying into base growls.  A sombre-faced, shifting multitude looks on; in dull approval; in dull approval or dull disapproval; in dull recognition that it is a Necessity….She [Princesse de Lamballe] is led to the hell-gate; a manifest Queen’s Friend.  She shivers back at the sight of the bloody sabres; but there is no return: Onwards!  That fair hind head is cleft with the axe; the neck is severed.  That fair body is cut in fragment; with indignities, and obscene horrors of mustachio grands-lèvres, which human nature would fain find incredible, – which shall be read in the original language only.  She was beautiful, she was good, she had known no happiness.  Her head is fixed on a spike; paraded under the windows of the Temple, that a still more hated, a Marie Antoinette, may see’.

Carlyle went on to say ‘Of such stuff are we all made; on such powder-mines of bottomless guilt and criminality – ‘if God restrain not’ as is well said – does the purest of us walk’.’

The novelist Stefan Zweig wrote a book called Joseph Fouché, The Portrait of a Politician.  Here is his account of ‘the first of the notorious mitraillades of Joseph Fouché outside of Lyon.

Early that morning sixty young fellows are taken out of prison and fettered together in couples.  Since, as Fouché puts it, the guillotine works ‘too slowly’, they are taken to the plain of Brotteaux, on the other side of the Rhone.  Two parallel trenches, hastily dug to receive their corpses, show the victims what is to be their fate, and the cannon ranged ten paces away indicate the manner of their execution.  The defenceless creatures are huddled and bound together into a screaming, trembling, raging, and vainly resisting mass of human despair.  A word of command and the guns loaded with slugs are ‘fired into the brown’.  The range is murderously close and yet the first volley does not finish them off.  Some have only had an arm or leg blown away; others have had their bellies torn open but are still alive; a few, as luck would have it, are uninjured.  But while blood is making runnels of itself down into the trenches, at a second order, cavalrymen armed with sabres and pistols fling themselves on those who are yet alive, slashing into and firing into this helpless heard, of groaning, twitching and yelling fellow mortals until the last raucous voice is hushed.  As a reward for their ghastly work, the butchers are then allowed to strip clothing and shoes from the sixty warm bodies before these are cast naked into the fosses which await them.

This was all done in front of an appreciative crowd.  When the guillotine is put to work, ‘a couple of women who have pleaded too ardently for the release of their husbands from the bloody assize are by his orders bound and placed close to the guillotine.’

Carlyle sensed that we tip-toe around the rim of a volcano that we do not want look down into, but that what we call the French Revolution gives us a glimpse of the molten fury that lies under us all.  One further citation from Carlyle will serve to link the horrors of the French Revolution with those of the twentieth century when mass murderers defiled their victims even in death:

One other thing, or rather two other things, we will still mention, and no more: the blond perukes; the Tannery at Meudon.  Great talkers of these Perruques Blondes: O reader, they are made from the Heads of Guillotined Women; the locks of a Duchess, in this way, may come to cover the scalp of a cordwainer, her blonde German Frankism his black Gaelic poll, if it be bald.  Or they may work affectionately, as relics, rendering one suspect?  Citizens use them, not without mockery; of a rather cannibal sort.  ….  Still deeper into one’s heart goes that Tannery at Meudon; …‘There was a tannery of Human Skins; such of the Guillotine as seem worthy flaying: of which perfectly good wash-leather was made; for bleaches and other uses.  The skin of the men, he remarks, was superior in toughness (consistance) and quality of shamoy; that of the women was good for almost nothing, being so soft in texture …’  Alas, then, is man’s civilisation only a wrappage, through which the savage nature in him can still burst, infernal as ever?  Nature still makes him: and has an Infernal in her as well as a Celestial.

Finally, you might recall Julia from the chapter headed ‘Fear’.  Her husband was arrested, as was her older son, and then she was arrested.  Her younger son, although ill, was sent to the camp with her.  After she had been denounced, she was sentenced to five years in a labour camp in Kazakhstan.  She was physically and mentally frail, and in no position to withstand the hardship of camp life.  But she still had her own beauty, and the commandant made demands on her.  When she refused, he punished her, by sending her to work as a labourer in the construction of a dam.  For sixteen hours a day, she had to stand up to her waste in freezing water to dig earth.  It was a long and tortured and ultimately degrading death sentence.  Another inmate called Zina found her in a sheep pen, lying on the freezing ground among the sheep.

She was dying, her whole body was blown up with fever, and she was burning hot and shaking.  The sheep stood guard around her but offered no protection from the wind and snow, which lay around in mounds.  I crouched beside her; she tried to raise herself but did not have the strength.  I took her hand and tried to warm it with my breath.

‘Who are you?’ she asked.  I told her my name and said only that I came from you, that you had asked me to find her.

How she stirred: ‘Igor – my boy,’ she whispered from her frozen lips.  ‘My little boy, help him I beseech you, help him to survive.  I calmed her down and promised to look after you, as if that depended on me.  ‘Give me your word,’ Julia whispered.  ‘Do not tell me how his mother died.  Give me your word….’

She was half delirious.  I crouched down beside her and promised her.

They degraded Julia by not killing her.  It was nearly fifty years later that Zina felt able to treat her promise to Julia as discharged and to tell Igor that his mother, Julia, had not died in a hospital, but had been left to freeze to death in a sheep pen.  Every son has a mother, but Julia Pianitskaia was just buried in the sheep pen where she was left to die.  The death of Julia was a demented and perverted reprise of the birth of Jesus.  God help us all.

Here and there – Time’s up for sledging


Cricket was once said to be a game for gentlemen.  There are two parts to that proposition.  First, cricket is a game.  A game is something that you play.  The full OED definition is: ‘A diversion of the nature of a contest, played according to rules, and decided by superior skill, strength or good fortune.’  The relevant definition of ‘gentleman’ is quaint: ‘A man of chivalrous instincts and fine feelings.’  It may be simpler to say what a gentleman is not – a cheat, or a bully, or a lout.

It is not surprising, then, that the Laws of Cricket – they are big on upper case – say that ‘The umpires shall act upon any unacceptable conduct’.

If you were playing a game of golf and your opponent sought to put you off your game by insulting you or trying to intimidate you, you might think you were playing with a cheat, or a bully, or a lout.  (And the hardest insult to survive is that you cheat at golf.)  You would certainly know that you were not playing against a gentleman – or a lady.  And you would also certainly have known that this conduct was unacceptable.

You might then be surprised to learn that at the highest levels of cricket, umpires do not think a player who seeks to put another player off his game by insulting or trying to intimidate him is engaging in unacceptable conduct.  That conduct is called ‘sledging’ and umpires have tolerated it.  So have I – but no longer.  I will just turn the cricket off if they start at it again.


Attitudes change, but all this looks to me now to be petty, childish, and vulgar – and entirely unacceptable under each heading.  To go back to where we started, cricket is hardly a game at the top level.  Hardly any sport is now at that level.  It is part of an entertainment industry that gets more vulgar by the day – as a matter of commercial policy. Those running cricket have deliberately sought to popularise it to raise more money.  The financial motivation of the entertainment industry has debased the game of cricket.  With that debasement has come an acceptance of what we should plainly see as misconduct.  My sense is that most people who care about cricket, or having people represent their country, have had enough of sledging.

Certainly, one thing that people are utterly sick of is this talk about ‘crossing the line.’  At least two propositions are entailed – first, that some criteria exist to allow the line to be defined; secondly, that players will be able to identify that line and avoid crossing it.

I have trouble with each of those propositions.  We are solemnly told that there is a line between, say, ‘You’re as weak as piss’ or ‘I can see the brown stain starting’ and ‘Your mother’s a tart’ or ‘Your wife has a colourful history.’  ‘You black bastard’ is on any view out of bounds.  I’m not sure where ‘You fucking sook’ or ‘We’ll break your fucking arm’ stands.  Neither, you may be sure, are the players.

Presumably, that line turns on something as nebulous as taste.  Courtesy can’t come into it because the exercise in all cases involves trying to put someone off their game by insulting them.  There is in truth no satisfactory intellectual or moral basis for drawing any such line.  Too many players are incapable of seeing or adhering to such a line.  If I am right on that, the only answer is a blanket ban on sledging.

May I mention three related points?

First, it’s about two generations since parents could tell their children to emulate their sporting heroes, but that is no reason to tolerate forms of misconduct that can only serve to mislead or coarsen our youth.

Secondly, the behaviour of some of our cricketers is getting uncomfortably close to the truly scandalous behaviour of our tennis players.  I got turned off tennis about thirty years ago.  McEnroe misbehaved to obtain an advantage.  That’s called cheating – or bullying.  Too many tennis players are what were called ‘bad sports.’  We can’t afford to let cricket go there.

Thirdly, and perhaps most worryingly, some people want to defend sledging as being in some way tied to the way Australians play cricket.  In its customarily anaemic style, Cricket Australia said: ‘Australia has always prided it itself on taking a highly competitive approach to international cricket.’  That’s obviously bullshit.  Aren’t the English, Indians or South Africans highly competitive?  But it’s worse than bullshit.  It’s an appeal to nationalist instincts in the context of an appeal to pride.  We are in the realm of the last refuge of the scoundrel.  In truth it’s worse than that.  We have relapsed into the era of the macho Marlboro man.  And as my old man said, the Marlboro man went out with hessian drawers.  It’s revolting to see grown men behaving like that now.  It’s as bad as Donald saying that his button is bigger than Kim’s.

One of the tragedies of our sport is that too many of us don’t get to follow our national team in footy.  I happen to follow an NRL club.  I take an interest in Origin games.  And I take a real interest when the Australian side gets an outing against New Zealand or England.  It’s not the same as a rugby union test, but it is a test match.  And when Cameron Smith and Jonathon Thurston come out in my colours they carry my pride and trust.  Boy, do they ever.  They, and other Kangaroos, doubtless indulge in what’s called gamesmanship, but I don’t see or hear of the coarseness that some of our cricketers show – and that’s in a sport that is as rough and tough and down-market as you can get.  The Australian cricketers no longer carry my pride or trust.  And if you know anything about footy here, that means our cricketers have a real problem.

Our coach has failed to set the right tone.  He should go.  The captain is weak; he needs to grow up and be firmly told that he is not a shop steward to represent the comrades, but the captain of a national team that wears our colours and purports to represent all of us.  The vice-captain has so much form that he should be fired from that position and be given some time to be at home with his Lamborghini.  The piddling penalties handed out suggest that the game is now being run by the players.  Cricket Australia is responsible for this.  They were utterly gutless in allowing Indian money and caste to run over them when the Indians thought it was OK to sledge one of our players of colour as a monkey.  Cricket Australia needs a new CEO.

The time may have passed when cricket was a game played by gentlemen, but at the rate we pay these spoiled brats, they could at least try to feign some manners.  Otherwise, our only remedy is to turn them off while they falsely wear our colours.  Cricket Australia can tart up and trivialise either form of the pyjama game as much as they like.  But in the only real game – test cricket – our players are claiming to represent us as a nation, and it’s time that they learned again how to do so decently.

Finally, can anyone imagine Victor Trumper being so crude?  Of course not – and Trumper was and is our hero and our idol.

Passing Bull 139 – Madness in the commentariat elite about conservatism


I am sorry to harp on the love of labels and abstractions at The Weekend Australian, but last weekend it reached tsunami proportions.  I apologise in advance for the length of this note, but I do see more than bullshit at work here.

Paul Kelly sees the crisis of conservatism as ‘a moral crisis.’  While Mr Kelly does not say what he means by ‘conservatism’, it is not hard to see the crisis as ‘moral’ – at base, all political issues involve moral questions – unless you subscribe to the view that winning means everything.

But then you look at what Mr Kelly says that ‘conservatives’ demand from Turnbull – ‘quitting the Paris accords, pitting coal against renewables, ditching Gonski funding, revisiting the National Disability Insurance Scheme and achieving small government with a new round of spending cuts.’  Then you are even more at sea about what a ‘conservative’ may believe – except, as Mr Kelly says, ‘a package for guaranteed electoral suicide.’  It’s little wonder then that Mr Kelly concludes that ‘the political contest over morality is pivotal and the conservatives mainly lose it.’

But Mr Kelly’s infatuation with –isms finds another demon.

The issue for conservatism has been its paralysis before its gobsmacking individual expressionism and its violation of Christian views of human nature.

The last phrase looks over the top – are we not supposed to be a secular community? – but what on earth is wrong with individuals wishing to express themselves.  Isn’t that what ‘conservatism’ is about?  ‘Thank you, Government, but no – leave me alone to look after myself.’  And Mr Kelly refers to a writer who gives a horrifying indication of what happens when the individual surrenders to the herd.  The highest rating TV show of the 1950’s, I Love Lucy, had a 67.3 Nielsen rating.  Can you imagine a worse indictment on the intellectual life of a nation?  In 2014, the highest rated show Saturday Night Football maxed out at 14.8 rating.  Is not that the best news you have heard from the U S in ages?

Finally, Mr Kelly says that ‘the problem with Turnbull is that he remains a transactional rather than conviction politician.’  There are two labels in play here.  What is a conviction politician?  If it is politician who is in some way ideologically driven, then they have to confront an aversion that is not just Australian, but Anglo-Saxon.  We have produced Gough Whitlam and Paul Keating.  The UK produced Mrs Thatcher.  Any other takers?  One thing is sure.  Mr Trump is not a conviction politician.  He has no convictions at all.

What then is a transactional politician?  When applied to people like Trump or Shorten, it is one of disfavour.  Buy why?  Is not the ultimate platitude that politics involves the art of compromise?  The Turnbull government in my view has transacted good business on trade with our Pacific neighbours, and looks to be navigating the turbulence of Trump.  That, for me at least, is good politics, not bad politics.

But Grace Collier tells us the truth about what she and her colleagues think of a ‘transactional politician.’

It is true that Shorten is often described as ‘transactional’.  Further, this term is one you always hear when people are trying to account for his seeming lack of core values and belief systems, friendships with the super wealthy and other inexplicable contradictions…..The word transactional and really seems to me just a polite way of saying someone is an untrustworthy shyster who would sell his grandmother to the highest bidder.

Well, sadly, that’s not far off how many Australians see most politicians.  But, if you haven’t guessed the politics of Ms Collier yet, she is keen to disabuse you.

Most people think that the purpose of the union movement is to look after working people, in workplaces.  That is a naïve assumption and wrong.  The purpose of the union movement is to put union officials into parliament.

Well, there it is – and perhaps not surprising from a journalist who sees a friendship between the leader of the ALP and some of our very rich people as involving an ‘inexplicable contradiction.’  Why?  Has the man got uppity and got ideas above his station?  Is Ms Collier’s commitment to the tribe so commanding?  God help us, has she succumbed to ‘identity politics’?

Noel Pearson has a piece on how conservatism has been hijacked by reactionaries.  He makes the obvious point that people are never exclusively conservative, liberal or socialist – unless you melt those terms down to nothing.  So much of our discussion is flawed by the fallacy that you have to be one thing or the other.

Mr Pearson makes an observation that is so true for most of Team Oz:

so-called conservatives, while railing against the victimhood of the leftish tribes, are themselves pushing their own victimhood.

He says that Keith Windschuttle, Gary Johns, Andrew Bolt and so many more ‘started in the left,’ but after a Damascene conversion wound up ‘more extreme in their views than their new associates.’  Mr Pearson subscribes to the view that Mr Bolt just ‘found a business model.’  Mr Bolt, then, is no conviction commentator.

Mr Pearson then gets into his stride.  ‘The Centre for Western Civilisation is the apotheosis of this reverse identity politics….Conservative English philosopher Roger Scruton in his 2012 book Green Philosophy argued that conservatives should properly be conservationists.’  How could they be otherwise?  How could anyone in our political tradition prefer theory to evidence, ideology to facts, or dreams to sense and reality?  And Mr Pearson gets something else right.

Howard deferred major crises of conservatism, such as same-sex marriage and religious freedom, climate change and energy security, rather than resolving them.

Chris Kenny riffs, as is his wont, by pushing his own victimhood, to use the term of Mr Pearson.

Bring back the Barnaby story.  Half of what passes for national debate is almost as inconsequential….It can’t only be me who simultaneously feels overgoverned and ungoverned…..If voters want environmental gestures, nanny state laws and never-ending government interventions, they can vote for the past masters – Labor – so why vote for the cheap imitations?  ….Perhaps Labor did them [Tassie Liberals] a huge favour by proposing a radical poker machine ban they could never accept, thereby forcing them into a strong position of differentiation…But in my view the warning signs are flashing for Liberals across the country.  In a haze of opinion polls, social media, and superficial spin-driven politicking, they have forgotten their mission.

Will Mr Kenny never see that he is one of the main creators of the ‘haze…..and superficial spin-driven politicking’?  What else has he ever done in life?  We can come back to banning poker-machines, but do we not see here Mr Kenny condemning politicians for being naïve in making a moral stand on a matter of conviction?

Speaking of the haze of opinion polls, Dennis Shanahan is obsessed by them.  He is also obsessed with the ‘regicide’ of his mate, Tony Abbott.  If his piece had any other point, I missed it.

Greg Sheridan wrestles with the moral dilemma of Trump and conservatism.  It is or ought to be common ground that Mr Trump is a liar, a fraud, a coward, a fool, a lout, and a man so deeply in love with himself that the word ‘shameless’ is hardly enough.

Trump is in many ways a very unsatisfactory president.  But the crisis in Western governance is morphing into a crisis of Western civilisation.

What could that mean?  Well, at least Mr Sheridan believes that imposing tariffs is a bad idea – as does Judith Sloan – but why does he feel the need to justify the man and put blame on the ‘exaggerated and hysterical reaction’ of the rest of us?

John Durie has an interesting piece on Mr Andrew Mackenzie, the CEO of BHP.  Mr Mackenzie (or Dr Mackenzie) studied geology at St Andrew’s University, took a PhD in organic chemistry at the University of Bristol, and was awarded a Humboldt Research Fellowship at the Julich nuclear research centre in Germany.  He is a member of the Royal Society.  (The members of the Royal Society don’t elect idiots.)  Not bad for a corporate CEO.  Far, far better credentials than mine.

But Terry McCrann in his piece sees Mr Mackenzie as part of the ‘commentariat elites’ and an idiot.  Since Mr Mackenzie says ‘we don’t hide from the global challenge of climate change’, the rest of the commentariat elite at that paper would also think he’s an idiot.  As would all others who falsely call themselves ‘conservatives’ while refusing to act to conserve the earth that we live on.

Leaving the best to last, what does the good Christian Gerard Henderson say about the moral issue of middle class recreational facilities living off the earnings of gaming?

The comments from the likes of White, O’Connor and Brown [people who said the Liberals were ‘a bought government’] are imbued with elitism…..the absence of poker machines and the customers they attract would have put financial pressure on hotels and clubs throughout the state….Whatever the damage caused by the small number of problem gamblers, hotels and clubs give a vibrancy to local life for many citizens.

It’s true the Federal Group campaigned to retain its poker machines in hotels and clubs throughout Tasmania.  That’s what the management of a legal business is expected to do.  Yet Labor and the Greens are delusional if they hold the view that the Federal Group ‘bought’ the Liberal Party.

Well, there you are.  We have so far been looking at bullshit.  Now we have more bullshit, and with it, a searing hypocrisy.  Bugger morality – just look at the politics.  Had the moral question been answered against the government, some businesses would have felt ‘financial pressure.’  Since those businesses were prepared to give a lot of money to the government to avoid that pressure, the moral issue would just be ignored.  I was, apparently, wrong to say that all political questions resolve into moral issues – although I did say there was an exception for those who believe that winning is everything.

That’s apparently the view of Mr Henderson.  I find it impossible to believe that that view could even have been contemplated by the holy man who preached the Sermon on the Mount and who issued his own death warrant by taking to money dealers with the lash.

If people at the Australian really want to know why newspapers and politicians are so on the nose, just look at those comments of Mr Henderson.  They also indicate why his church is sinking before our eyes.  The whole mess is terribly sad.  I had thought that Mr Henderson was harmless.  I now think that I was wrong in that.

In fairness to the faith I have lost, I may say that a good friend of mine who subscribes to that faith – if it matters, as a member of the cloth – was appalled by the comments of Mr Henderson.  As I recall it, when the golf club in his town said they would shut down without pokies, my friend asked why shouldn’t they?  I think that’s a real question – but not for Mr Henderson.  If people cannot maintain a recreational facility without relying on income from a business that inevitably causes harm to other people, why should the rest of us allow it?  Are we not complicit in their living off the earnings of wrongdoing?

What is clear is that there is a lot of bullshit involved if people want to talk about morals, convictions and transactions when looking at poker machines in Tasmania.  The Liberals knew a transaction when they saw it – you piss in my pocket and I will allow you to pick the pockets of others – to hell with conviction or morals.  As squalor goes, this is hard to beat; and when God gets invoked, it becomes unbeatably squalid.




[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 18 The numbers; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]


The numbers

If you accept as an article of faith that each of us has our own dignity or worth just because we are human, then it is wrong for anyone to treat anyone else as a mere number.  We are at risk of doing just that when we seek to compile numbers of the victims of the three regimes that we have been looking at.

The essential crime of both Hitler and Stalin was that they degraded humanity by denying the right to dignity, by denying the very humanity, of people beyond count – by denying the humanity of one man, woman, and child multiplied to our version of infinity.  Every one of those victims – every one – had a life and a worth that came with that life that was damaged or extinguished.  In his book Bloodlands, Professor Richard Snyder endorsed the proposition that ‘the key to both National Socialism and Stalinism was their ability to deprive groups of human beings of their right to be regarded as human,’ and when we descend to statistics, we might do the same.

Should we not be looking at Jean Baptiste Henry the eighteen year old apprentice tailor decapitated for sawing down a tree of liberty?  Or the mother of Angelina and Nelly who was separated from her children and sent to a concentration camp because she had not denounced her husband?  Or the young schoolboy at Munich whose brain was so washed that he could not abide the sight of a dirty Jew in his classroom in the form of a crucifix?  Would he grow up to fire up the ovens?

But, we have to make at least some comparisons.  The Reign of Terror up to the execution of Robespierre accounted for about 30,000 deaths with another 10,000 who died in prison.  Much the greater part of those 30,000 were killed because of their alleged participation in the civil war.  The Revolutionary Tribunal despatched about 2,600.  About 300,000 were detained under the Law of Suspects.  Professor Hampson sought to add some perspective by adding that about 15,000 members of the Paris Commune were shot in May 1871, and that there were about 40,000 people executed after the liberation of France in 1945.  Of 14,000 victims of the Terror whose social origin is known, about 1150 came from the nobility and 200 from the upper middle class.  About seven out of thirty five of the highest caste of nobility was killed.  Death alone could not therefore account for the decline and fall of the nobility.

The French Revolutionary Wars of 1792 to 1802 cost about two million lives.  The Napoleonic Wars of 1803 to 1815 destroyed about five million lives.  We cannot get our heads around those figures any more than estimates of eight to ten million lives for the First World War.  None of these figures would mean anything to someone putting their head through the window of the guillotine or being dismembered by Napoleon’s cannons.

Stalin and Hitler murdered fourteen million people between them over twelve years.  Nearly 700,000 were shot in Stalin’s Great Terror of 1937 to 1938.  Some four million Soviet citizens were in the Gulag when Germany invaded the Soviet Union in 1941.  As we saw, the NKVD massacred many of their own prisoners as the Germans advanced in order to stop the Fascists getting their hands on more forced labour.  The Soviets sentenced a further two and a half million people to the Gulag during the war.  The NKVD remained active anywhere that the Fascists did not reach – including those poor wretches starving to death in Leningrad under siege.  More than half a million deaths were recorded in the Gulag in two years.  They all died without grace or dignity.  The Germans killed about three million Soviet prisoners of war, which is about the number of Ukrainian peasants that were starved to death by the Soviets in 1932-1933.  The total Russian casualties of that war, civil or military, were of the order of 20,000,000 which is more than two and half times greater than the casualties of all nations for the First World War.

Alan Bullock put a number of eighteen million on the victims of Nazi brutality for the whole of Europe and Russia (apart from the victims of the orthodox war) and he said this:

It is important to place these figures on record.  But because they can have the effect of numbing the imagination, which cannot conceive of human suffering on such a scale, it is equally important to underline that every single figure in these millions represents acts of cruelty, terror, and degradation inflicted on individual human beings like ourselves, a man, a woman, a child or even a baby.

Whatever else humanity can do, it cannot come to terms with its degradation like this, or, as the poet Chris Wallace-Crabbe said: ‘Whatever Christ meant, it wasn’t this.’


Here and there – Four movies


Darkest Hour

When you have been brought up with a myth that happens to be true, you get chary if anyone tries to fiddle with it.  For that reason, I did not see the recent film about Lincoln.  I put Lincoln on the right hand side of God.  I have a similar view about Churchill, but I am alive to and relaxed about his foibles and failures.  So, I could go and see Darkest Hour.  I thought it dragged a bit.  The lead (Gary Oldman) and the two women (Kristin Scott Thomas and Lily James) were excellent.  I wonder if Halifax and Chamberlain were that evil – trying to unseat a PM in wartime unless he agreed to negotiate with someone who couldn’t be trusted.  The prescience of the English Labour Party was invaluable then – and later.  I thought the film makers got it about right.  Lincoln’s cabinet thought he was an idiot.  Churchill’s thought he couldn’t be trusted.  Lincoln didn’t have the baggage of Gallipoli – but Churchill had been right about Hitler.  The train scene was an allowable fancy, but the scene with the full cabinet was spot on, word for word – about the war only ending when we are writhing in our own blood.  Churchill said he was surprised how elated some hardened MP’s had been.  They just wanted someone to take a stand. That was I think the turning point.  It’s sobering to think what may have happened had Halifax prevailed. One thing is sure – we wouldn’t he having this discussion – in English, or at all, since the history of the world would have been very different.

Sweet Country

The problem starts with the conception.  They thought they were making a Western.  How many Westerns have you seen about the fate of African Americans – where the most likely finale is a good old fashioned lynching?   Does not the idea seem both tasteless and senseless? Black Hats versus White Hats can be a high art form, but the fate of a people is not a fit subject for caricature.  The main white people in Sweet Country are either combinations of Hitler and Stalin, or irrelevant because they are saintly, or a decent relic of Empire.  The blackfella is doomed from the time he kills a white man, but we are taken through a cruelly long process that leads to the ultimate cliché – the innocent man listening to his scaffold being erected.  And any link to reality goes clean out the window in the farcical ‘trial’ scene, where the participants sit on deck chairs in front of a pub full of drunks cheering the home team – after a committal hearing, in which the judge calls the accused to give evidence.   The predicate is that a committal leads to a verdict and execution, sixty years or so after the last public hanging in Australia.  It’s not just bad theatre – it’s bad history, too. This was a ham-fisted disaster that does nobody any good.  And, irrespective of whether Bryan Brown can act – he always looked like a superannuated head prefect to me, a poor man’s Michael Caine – why does a whitefella get top billing over a blackfella, in a film said to be about the oppression of blackfellas, and where, for the removal of doubt, the blackfella is the White Hat, and the whitefella is the Black Hat?

Three billboards outside Ebbing Missouri

If, like me, you doubt the proposition that that which doesn’t kill you makes you stronger, you may relate to this film. In a smallish town in Missouri, the mother (Frances McDormand) of a raped and murdered child is not happy with what the police are doing.  She vents her anger on three billboards  that single out the Commissioner (Woody Harrelson).  She has no particular complaint against him.  As far as we can see, the police are doing what they can.  Her actions against the Commissioner are cruel on him and his young family because he is dying of pancreatic cancer.  When this is put to Mildred, her response is despicably tart.  (And she has a few shockers.)  The self-righteous anger of a victim can be both dangerous and nauseating.  It was for me in this film.  There is a ghastly cycle of violence and despair among many no-hopers, and the makers of the film tried to fit too much in.  The first object of the law is to end vendettas.  Not here – they just keep rolling along.  I wasn’t particularly grabbed by the lead performance.  Her part is that of a steely hard-assed bitch, who obviously let her daughter down and shows a remarkable capacity to do the same for her son.  She has a mask on at the start and she keeps it on.  If she showed compassion, or anything you would expect of a mother, I missed it.  Against that, Woody Harrelson’s part is engaging and uplifting.  Without it, the arvo would have been even harder.  I was neither entertained nor impressed by this movie.  I couldn’t see the point of all that anger and cruelty.  If Americans get that angry, they can produce someone like Trump.  What you get is the lack of tolerance and balance that bedevils all of us.  I believe that there is a great malaise in America, but I do not pay $13.50 for a seniors’ ticket to have that sad fact rammed down my throat.

The Post

It was my good fortune to hear Katie Graham speak to a large audience of lawyers in Washington D C in 1984.  She was clearly a person of great character – and she was treated that way by a large audience that she held in her hands.  Her role and that of The Washington Post in the Pentagon Papers and Watergate was still fresh in the minds of everyone there.  The press then enjoyed a level of renown that it has since sadly lost.  A film about her and her paper, and her editor, Ben Bradlee, starring Meryl Streep and Tom Hanks would be hard put to fail.  Washington 1971 looks a long way back now – wealth and privilege – is the press too cosy with government? – and gorgeous lamps and coverings.  And so frightfully male.  Graham is forever surrounded, and taunted or ignored, by ugly, condescending suits.  I thought Hanks was a little too much Boys’ Own at times, and the movie got a bit soppy and floppy near the end to prolong the agony – but otherwise I lapped up every bit of it.  Streep is immensely gifted.  She doesn’t have to engage in histrionics for you to know that.  Her performance is wonderfully cadenced – as when Bradlee taxes her for being too close to McNamara, and she responds by reminding him how close he was to Jack Kennedy – if Bradlee got invited on to the Kennedy yacht, surely he had to pull a couple of punches.  If I had a vote at the Academy, Meryl Streep would get it hands down.  The film reminds us that we need a strong press to deal with a corrupt or dishonest president – who hates the press.  And it’s not every day that you get to see a great actress playing a great lady.

Passing Bull 138 – The sex ban


The reaction to the Prime Minister’s sex ban was curious.  Many of the people who attacked the PM on this issue are the same people who complain that he never does anything.  They wheel out that weasel word ‘leadership’.  To my surprise and relief, Mr Greg Sheridan supported the ban in The Australian.  In response, I wrote a letter to the editor, which was published, as follows.

In something of a change for me, I am happy to support Mr Sheridan in what he says about the sex ban.  It is about abuse of power, not sex.  As I read the piece, I recalled a discussion I had with a neighbour that we knew as Old Jack.  Old Jack had flown 47 missions in Mosquitoes.  We discussed my namesake, Guy Gibson – Wing Commander Guy Gibson, VC, the leader of the Dambusters.  War heroes don’t get more sacred than Gibson.  But Old Jack said that many in Bomber Command doubted Gibson.  Why?  He went out with women of lesser rank.  What’s wrong with that?  Mr Sheridan states the obvious.  You can see it in large law firms; in the hierarchy of the churches; and worst of all in any uniformed service.  And that’s before you get to the Caesar’s wife point about Ministers of the Crown.

It was business as usual the next day.  I often find it hard to follow what Janet Albrechtsen and John Roskam are saying.  Neither liked the ban, but I have trouble seeing why.  Ms Albrechtsen said the ban was ‘patronising’ and ‘illiberal’.

It’s not surprising that the socially fashionable Turnbull would tack so close to the #Me Too movement, but his clunky, gender-driven over-reaction, like much within the #Me Too movement, is paternalism writ large.

Yet, before she resorted to the scattergun of labels, Ms Albrechtsen indicated that she understood at least part of the issue.

It’s not sex between consenting adults, even between a minister and staffer, that matters.  It’s a boss’s preferment of a staffer, arranging new highly paid jobs that matters.  Had Turnbull stepped up earlier, telling voters that such preferment and conflicts will not be tolerated, he would have done a fine and measured job.

Most laws, and all prohibitions, restrict freedom, and are therefore ‘illiberal.’  One such law is the law of murder.  Your freedom to fire a gun is restricted if the head of your estranged spouse is at the other end of the gun.  All gun laws are illiberal.  To object to them on that ground would plant you firmly in the moral and intellectual wilderness of Second Amendment America.   To object to any law on the footing that it restricts freedom is to invoke something close to a tautology.  It’s a little like saying that the police shouldn’t charge a person because that person will be defamed by the process.

Well, is the law patronising?  Does it assume that people may need protection when they might be better off if left to stand on their own two feet?

Now, this gets closer to the issue, but people should understand how much of our law is dedicated to protecting the weak against the strong – or, to put it differently, how much of our law is about restraining abuse of power or acting in bad faith.

Those who think that the law has nothing to do with morals are dead wrong.  If we put to one side infants, lunatics, and consumers, there are many areas of the law that are concerned with relief from oppression or bad faith.  A large part of our constitutional and administrative law is there to prevent government becoming overbearing on us.  The transactions of people in business are at risk if their conduct has been ‘misleading’, ‘deceptive’, or ‘unconscionable’.  A dispute among shareholders may be resolved by reference to what is ‘just and equitable.’  Majority shareholders may be restrained from conduct that is ‘oppressive.’  Directors and other employees have to act ‘honestly’ and ‘for a proper purpose.’  Large companies may be restrained from conduct that is ‘predatory.’  The laws of most Western countries provide that a corporation that has a substantial degree of power in a market must not take advantage of that power for the purpose of substantially damaging competition.  A dependant with a ‘moral claim’ on a testator may ask the court to make an ‘adequate’ and ‘proper’ provision for them.  Reports in the Fairfax press suggest that the laws of franchising need to change to give more protection to the franchisee – too many franchisors have the insouciant brutality of Caligula.

Those are statutory extensions of case law on the duties owed by people in positions of trust and confidence.  This is part of the law known as equity.  It goes back many centuries.  Here is how the basic premise was expressed in an old text.

If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition.  If influence is acquired, it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains…..The general principle, which governs in all cases of this sort, is that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief.

One way the law goes about enforcing these obligations is to ban the person in a position of trust from entering into relations that will put them in conflict in carrying out their trust.  This is what is called a ‘fiduciary’ duty.  It is very hard for a company director to retain a profit that he has earned as a result of carrying out his director’s duties.  Partners and staff of a business owe these fiduciary duties to their firm.  A sexual liaison between a partner and a member of staff may involve each in a conflict of duty and interest.  That being so, it is not silly to suggest that such a liaison may be unlawful under the general law as it stands.

A related part of the law deals with people who can influence others unconscionably as the result of an imbalance of power.  This is the law about ‘undue influence.’  Sir Owen Dixon said:

But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected.

On policy grounds, that statement may apply to a Minister of the Crown propositioning a member of his staff.  It just depends on your point of view.

It is very hard for a lawyer to uphold a substantial gift from a client or for a priest to uphold a gift from a dying penitent.  The rationale of the law may be stated as follows:

By constructive frauds are meant such acts or contracts as , although not originating in any actual evil design, or contrivance to perpetrate a positive fraud….are yet by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law….the doctrines ….will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice, after a wrong has been committed.

Almost every word of that could be applied to the case of Mr Joyce and the reaction of the government.  Mr Joyce did not set out to do something wrong, but the tendency of his actions has been to violate public or private confidences and injure the public interest.  That in turn led the government to take preventive action to reduce the risk of this tendency to lead to this kind of harm in the future.

Our law has always been zealous to protect beneficiaries from their trustees.  It has been zealous not only in examining benefits obtained by those people we call fiduciaries – it has said that some kinds of transaction are so inherently dangerous, that it will not inquire into the merits of particular transactions – it will just ban them.

That is the course that the government has adopted in dealing with fiduciary obligations of public officers called ministers – at least when it comes to having sex with those who are under them and whom they are obliged to protect.  Barnaby Joyce entered into a relationship that could and did conflict with his public duties.  This was a clear breach of fiduciary duty – as Ms Albrechtsen may acknowledge.  The temptation was there for Mr Joyce to misuse his office, and persuade others to do the same, in order to favour his mistress.  It’s hardly surprising then that the government has followed one path of the law by deciding to ban certain transactions outright for those who owe fiduciary duties.

So our jurisprudence may have approached the Joyce Case through a few avenues, but it is a little hard to see what Paul Kelly makes of it.

Turnbull’s ban on ministers having sexual relations with their staff formalises what should be the case anyway…..It is one thing for Turnbull to justifiably take a stand and say ministers cannot have sex with their own staff.

That seems clear enough, but beware – Turnbull is a ‘declared progressive’ and so we then get this.

This is a progressive, not a conservative, movement.  It means libertarianism is being sacrificed to identity justice, a process catching many people out.  It assumes people cannot be allowed to pursue relationships freely because of the risk of exploitation on the basis of power or gender.  The progressive quest is for new rules and regulations to govern human relations.

This is not just about halting sexual abuse or harassment, an essential goal.  The progressive vanguard has moved far beyond this- it is now focused on power and argues that consensual sexual relations based on a power imbalance are suspect on grounds of exploitation.  Just think about that crazy idea.

You get a box of Jaffas and a smiley koala stamp if you can reconcile those statements.  This is labelling gone mad.  As I have tried to show, it has been the business of the law to rule on ‘relations based on a power imbalance’ as being ‘suspect on grounds of exploitation’ since the time when the Puritans ran England.  Having learned what we have in the last few years about relations in the churches suspect on these grounds, it is sad to see uncertainty and confusion in how we should now react.

And that’s before we get to the point that Ministers of the Crown hold positions of public trust and that there were issues of the use of public money involved in the Joyce Case.  Rarely does a day go by when the Murdoch press does not excoriate the ABC over its use of public money, but when it comes to obvious failings of a politician deemed to be a ‘conservative’ vote winner, they change their tune.

But perhaps it is not surprising that the Murdoch people get skittish about issues of integrity and their conservative political clients.  They oppose an integrity commission for the federal politicians – a move that is as sought after in the community at large as the sex ban that was imposed in light of the Joyce Case.




[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]


Banality and the surreal

Kings do not have surnames – they do not need them.  This historical fact did not suit the new regime in France.  It had a fine taste for bureaucratic order and protocol.  When the Convention arraigned the former King Louis XVI, he had to be given a name.  They found reason in the history of the Capetian line to call him Louis Capet.  (Cromwell and his men had done much the same for ‘Charles Stuart’ one and a half centuries beforehand.)  Louis said ‘I am not called Capet, and the name has never been more than a sobriquet’, but the trial went ahead against him under that name.

When the Duke of Orleans presented at the relevant office to enrol to vote, he said that his name was Louis-Philippe-Joseph d’Orléans.  ‘That cannot be.  It is a feudal name forbidden by law.’   So, he became Philippe Égalité, but acceptance into the fold did not bring immunity.  When the wheel turned, as wheels do, the çi-devant duc was guillotined under his revolutionary name, and not the ‘feudal’ title.

The English Marxist historian Doctor Christopher Hill wrote a book called The World Turned Upside Down about radical ideas coming out of the revolution in the mid-seventeenth century that ushered in the protestant ethic.  The French Revolution had its full quota, and their manifestation could be bizarre.  The alternation between the banal and the surreal gave some a sense of release, and just added to the uncertainty and insecurity of the rest of the world turned upside down world.

About ten years later the wheel turned again.  It turned on those who had unleashed the guillotine on monarchs and nobles.  A Corsican soldier of the shabbiest gentility came to be crowned emperor – in fact he would crown himself in the presence of the pope.  It was a riot of pomposity, because Napoleon believed that it is by such baubles that men are ruled, what François Furet described as ‘Carolingian kitsch’.  The pope was little more than a witness, and the new emperor did not believe one word of it.

The word ‘banal’ comes from France – curiously, a banalité was one of those feudal obligations that led the peasants to burn down chateaux.  The dictionary says that ‘banal’ means trite, trivial, or commonplace, but there is often a suggestion of emptiness or hollowness behind feigned or usurped importance that is pejorative.

Hannah Arendt wrote a book called Eichmann in Jerusalem, A Report on the Banality of Evil.  She explained the sub-title as follows: ‘When I speak of the banality of evil, I do so only on the strictly factual level, pointing to the phenomenon which stared one in the face at the trial.  Eichmann was not Iago and not Macbeth, and nothing could have been further from his mind than to determine with Richard III ‘to prove a villain’.  Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all.  And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post.  He merely, to put the matter colloquially, never realised what he was doing……He was not stupid.  It was sheer thoughtlessness – something by no means identical with stupidity – that predisposed him to become one of the greatest criminals of that period.’

Arendt had previously said to the same effect: ‘The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were and still are terribly and terrifyingly normal.’  Eichmann was no devil or demon; he was just human, and the trouble for us is that he was ‘terribly and terrifyingly normal’.  Those who do not accept that Eichmann was just human, and that there is a little of Eichmann in all of us, are seeking to impose some kind of grid or cattle pen over humanity and are at risk of falling into the error that fed the derangement of people like Stalin and Hitler.

An American historian said of one brutal terrorist: ‘Carrier, it may safely be said, was a normal man with average sensibilities, with no unusual intelligence or strength of character, driven wild by opposition, turning ruthless because ruthlessness seemed to be the easiest way of solving a difficult problem’

The banality could be childlike in the most revolting instances.  A Commission of twenty was set up to execute the orders to punish Lyon.  This brutal task would in truth involve mass murder and what we call crimes against humanity.  As Professor Palmer drily observed, ‘The obscure persons thus raised to power were not above a common frailty – they wished to be recognized.’  They needed a uniform.  They were not modest, and they forbade anyone else from wearing their chosen colour, bleu.  The French rugby team is called Les Bleus.

The other two regimes were full of banality, the one deriving from a theory that would inevitably fail, although the theorists might have objected that the theory was never given a chance, and the other deriving from a moral and intellectual void and a deranged racism driven by thugs.  Their perverted world views and incessant propaganda made their whole world surreal.

The moonshine over the funeral of Marat would come within most people’s understanding of the word ‘banal’ if not surreal, but it might all pale beside the torch-lit Wagnerian rites for the assassinated Reinhard Heydrich, the former head of the Gestapo, and a vicious man of incomparable evil.  There was one funeral in Prague and another in the Reich Chancellery.  Himmler gave the eulogy.  Hitler attended and comforted the children of the martyr and placed his decorations on his funeral pillow – the highest grade of the German Order, the Blood Order Medal, the Wound Badge in Gold, and the War Merit Cross First Class with Swords.  Privately, Hitler said that Heydrich had been an idiot to expose his person, but he then set about the reprisals.  A Czech town called Lidice was chosen at random and destroyed.  Adult males were shot.  Females were sent to camps and the correct looking children were sent for Aryan adoption to bolster the race.  The deceased would have been greatly moved.  Siegfried’s funeral march was just right.  The Nazis could rely on Wagner.

Shostakovich could remember applause at party conferences for the Leader going on and on and on for about thirty minutes because no one was prepared to risk being seen to be one of those who stopped the ovation.  Shostakovich knew he was in deep trouble when his work was criticised in Pravda.  Some thought that the piece may have been written ‘by that well-known bastard Zaslavsky’, but the composer saw that the article ‘has too much of Stalin in it’.  There was one lethal phrase ‘this could end very badly’.  ‘Two editorial attacks in Pravda in ten days – that was too much for one man.  Now everyone knew for sure that I would be destroyed.  And the anticipation of that noteworthy event – for me at least – has never left me.  From that moment I was struck with the label ‘enemy of the people’, and I still don’t need to explain what the label meant in those days.  Everyone still remembers that.’

Stalin once sent a note to the head of the Cheka asking how many political prisoners there were in the prison.  The head scribbled 1500.  Lenin put a cross beside the figure and gave it back to the Cheka boss.  That meant he had read it.  The boss thought that he had ordered  their execution.  They were all shot that night – by mistake.  This kind of mistake could have been common.  The Communists, like the Nazis, were obsessive about paperwork, but could anyone really tell the difference between an accidental murder and the rest?

Here and there – a philosopher on Shakespeare


Ludwig Wittgenstein was a German scientist and architect who became an English philosopher.  He was a client, in the Latin sense of that term, of Bertrand Russell.  When Wittgenstein wrote his Tractatus Logico-Philosophicus, he thought he had solved the problems of philosophy.  Russell was far from convinced and wrote a cautious forward.  Wittgenstein later recanted, as age and experience begat modesty.  His published output was later fragmentary.

One such work is Culture and Value.  It is a collection of aphorisms jotted down over many years about logic, life, religion, music, and literature.  If Russell had trouble following Wittgenstein when he was writing for the learned, we may have trouble when Wittgenstein is thinking aloud about the world at large.

Some of the aphorisms relate to Shakespeare.  What might they say about the playwright or the philosopher?

Shakespeare displays the dance of human passions, one might say.  Hence he has to be objective; otherwise he would not so much display the dance of human passions – as talk about it.  But he displays it to us in dance, not naturalistically.  (I got this idea from Paul Engelman.)

I’m pretty sure that I follow that.  The first proposition contains a metaphor that I find enlightening.  The suggested requirement of ‘objectivity’ is thought provoking, even if I’m not sure that the point is carried.  But he returns to the idea of a dance.  If he had referred to a ‘symphony’ or ‘fugue’ or ‘canvas’ of human passions, would there have been any different meaning?

It is remarkable how hard we find it to believe something that we do not see the truth of for ourselves.  When, for instance, I hear the expression of admiration for Shakespeare in the course of several centuries, I can never rid myself of the suspicion that praising him has been the conventional thing to do; though I have to tell myself that this is how it is.  It takes the authority of a Milton really to convince me.  I take it for granted that he was incorruptible. – But I don’t of course mean that I don’t believe an enormous amount of praise to have been, and still to be, lavished on Shakespeare without understanding and for the wrong reasons by a thousand professors of literature.

I don’t follow that at all.  The first sentence looks silly.  If we do not see the truth of a statement for ourselves, of course we tend not to believe it.  There is nothing remarkable there.  If the author is saying that a lot people just toe the line on this part of high art, we could well agree.  But does the fact that there is bullshit elsewhere disqualify our opinions, or, perhaps I should say, reactions?  The reference to Milton appears to me to be at best adolescent, and at worst plainly rude.  We can return later to the issue of ‘understanding’ Shakespeare.

It may be that the essential thing with Shakespeare is his ease and authority, and that you just have to accept him as he is if you are going to be able to admire him properly, in the same way you accept nature, a piece of scenery for example, just as it is.

If I am right about this, that would mean that the style of his whole work, I mean of all his works taken together, is the essential thing and what provides his justification.

My failure to understand him could then be explained by my inability to read him easily.  That is, as one views a splendid piece of scenery.

These comments make you wonder how often the philosopher had seen plays by this playwright on the stage – or if he had ever gone to the theatre at all.  The author wrote the plays for profit – obtained by people willing to be entertained by seeing these plays performed on the stage.  The repeated references to Shakespeare, and the reference to ‘the style of his whole work’ and ‘all his works taken together,’ suggest, to my mind, that the philosopher is proceeding at a level of abstraction that is almost metaphysical – and for him, that is anathema.

But if the first proposition entails that we should be careful in trying to analyse any part of this artist’s work, I agree with it.

But what does it mean to say that the style of the work provides its justification?  Why did Shakespeare have to justify King Lear – or any other part or the whole of his output?

And what does he mean by understanding Shakespeare?  When we talk of understanding something, we talk of getting its meaning or significance.  If I go to St Peter’s and see the Pieta of Michelangelo, or if I had gone to hear Miles Davis in the Vanguard in the 1950’s, or if I had gone to see Blue Poles chez nous, and someone had asked me if I had understood what I had seen or heard, I would have been at best confused.  ‘Listen, Mate, I have come all this way, and at real expense, to experience a work of art, one of the title deeds of Western civilisation.  Don’t ask me to relegate these masterpieces to the dustbin of the prosaic by trying to give what I think may the meaning of that art.’  To what extent is, say, Hamlet different to other works of art when it comes to understanding art?

There is, I think, a real problem here.  I have hugely enjoyed reading commentaries on Shakespeare by people like A C Bradley and Tony Tanner, and they have greatly added to my enjoyment of experiencing the plays.  (I have also come across truckloads of tripe.)  In some loose sense those authors may have added to my understanding of the plays, but I very much fear that that sense is far too loose for a philosophical inquiry.

If you think that sounds woolly, I would plead guilty – but that is what I feel driven to.  I would refer back to what I said about the need for care in trying to analyse any part of the work of this artist, or any other artist.  Indeed, any one of us might be accused of tiptoeing around the volcano if hubris if we claimed to have found the ‘meaning’ of any play or poem of this playwright and poet.

Shakespeare and dreams.  A dream is all wrong, absurd, composite, and yet at the same time, it is completely right: put together in this strange way, it makes an impression.  Why? I don’t know.  And if Shakespeare is great, as he is said to be, then it must be possible to say of him: it’s all wrong, things aren’t like that – and yet it’s quite right according to a law of its own.

It could be put like this too: if Shakespeare is great, his greatness is displayed only in the whole corpus of his plays, which create their own language and world.  In other words he is completely unrealistic.  (Like a dream.)

All of that goes clean over my head.  Even Freud may have had trouble with it.  It is worryingly symptomatic of a tortured ambivalence about Shakespeare.  It calls to mind a summer school at Oxford about Wittgenstein.  A very charming Indian lady was evidently finding it hard to come to grips with the subject.  She was not alone.  At the end she had a question for the tutor.  ‘You have told us that Wittgenstein set out to cure our language of illness – could you be so good as to give us an instance where the cure worked?’  She also told the class that ‘in India, we don’t even have a word for God.’  I took her to be saying that for her, some things – like God – were out of reach of words.  At least at one point, Wittgenstein would have agreed with her.

I do not believe Shakespeare can be set alongside any other poet.  Was he perhaps a creator of language rather than a poet?

The short answer is that he was both.  The long answer is that labels are at best dangerous and at worst presumptuous.

I could only stare in wonder at Shakespeare; never do anything with him.

There is a whole lot in the works of Goethe that I don’t ‘get’ (in part, because I am not receiving it as it was written – in German); it seems clear that Wittgenstein had the same problems with Shakespeare.  We are nowhere near analysis or criticism.  (When I use the term ‘get’ here, I am I think invoking a loose form of ‘understanding’ of the order I referred to earlier.)

It is not as though Shakespeare portrayed human types well and were in that respect true to life.  He is not true to life.  But he has such a supple hand and his brush strokes are so individual, that each one of his characters looks significant, is worth looking at.

Art is a lyrical reflection on the human condition.  We know art is good if people keep wanting more of it.  It is hard to think of an artist who has done this anywhere near as well as Shakespeare.  He shows us as we are.  To the extent that you can give meaning to the phrase ‘true to life’ in this context, it is dead wrong.

‘Beethoven’s great heart’ – nobody could speak of ‘Shakespeare’s great heart.’  ‘The supple hand that created new linguistic forms’ would seem to be nearer the mark.

A poet cannot really say of himself ‘I sing as the birds sing’ – but perhaps Shakespeare could have said this of himself.

The last proposition means nothing to me.  The first is of the same intellectual calibre – zero – as a public bar discussion of whether Bradman was better than Trumper or Ronaldo is better than Messi.

May I go back to what I said about the need for care in claiming to analyse art and the danger of hubris?  I’m afraid that the philosopher may be guilty on both counts.  And the statement that ‘nobody could speak of ‘Shakespeare’s great heart’ looks suspiciously like a statement of fact.  Richard Burton knew a good deal more about Shakespeare than Wittgenstein.  Burton saw ‘staggering compassion’.  The context is:

What chance combination of genes went to the making of that towering imagination, that brilliant gift of words, that staggering compassion, that understanding of all human frailty, that total absence of pomposity, that wit, that pun, that joy in words and the later agony.  It seems that he wrote everything worth writing and the rest of his fraternity have merely fugued on his million themes…..

Well, if a man as bright as Wittgenstein sees fit to go into print on an issue that gives him such trouble, you may wonder what modern philosophy has done for us.  Nor will you be alone there.  At a later tutorial at the summer school I mentioned, the Indian lady – to whom I had taken quite a shine – said to the tutor, in the course of the class: ‘Thank you for being so kind as not to notice that I was falling asleep.’

But we should end on a softer, kinder note.  I wrote elsewhere –

After a short visit to the United States in 1949, he [Wittgenstein] learned that he had cancer.  He lived with various friends in Oxford or Cambridge until he died in 1951.  He was, in common with our other heroes, at peace with himself when he left us.  It says a lot for his character that the lodging in which he stayed at the time that he died was looked after by a landlady.  Wittgenstein was in the habit of walking to the pub with her each night.  Wittgenstein would be about the most un-pub sort of person that God ever put on this earth, but he went out with his landlady for the walk and, moreover, he would order two sherries.  He would give one to her and, since he did not drink, he would pour his over the flowers.  That is not the conduct of a man bereft of humanity.  He had a most extraordinary intellect in a constricted character that made it nearly impossible to pass on to us the benefits of that intellect.  His success in doing so is due to his extraordinary moral courage.  Intellect alone is never enough.