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.

Mayhem in the Philippines

This open letter comes from a twenty-year subscriber to Foxtel, an eighty-year-old lawyer, who is close to the exit.

I wish to give a subscription to someone close to me.  After a long and difficult discussion on the phone yesterday with the Philippines, I agreed that Foxtel would deliver a box to my friend, that they would confirm the new account by email to me, and that I would be charged one year’s subscription when the box was delivered. 

I got no email, but I got charged $1000. 

My friend got a Do Not Reply email from Australia Post saying a package from Foxtel was on the way.  She got nowhere on the phone with the Philippines.

We were both left in the wilderness.

I called the Philippines again today.  It was equally painful.  At first, they said that they had emailed my friend – but could not send me a copy – or confirm receipt from me of $1000.  After further wrangling, they agreed to email me.  I finally got an email – Do Not Reply, of course – acknowledging the payment – and welcoming me to Foxtel!  No mention of my friend. 

But it is a start.

Robots are debasing humanity, and their rich owners could not give a damn.

I have a disclaimer.  I am in the course of publishing a book: The War against Humanity, The Decline pf Courtesy and the Fall of Dignity in Government and Business.  Foxtel is already a prominent culprit.   See below.  This is just the latest insult.

Our governments are not acting on these failings, because they are guilty of similar misconduct.

We the people, and the law, need to combine to deal with these outrages.

These companies go out of their way to be unreachable – untouchable even.  They may not be smash hits in parts of India.  A box of Jaffas therefore to someone who can give me an email address at which I might reach a human – perhaps even in Oz. 

And I should say I have no issue with the Philippines.  They have produced some of the finest nurses to have treated me – nightmares for Pauline. 

When she gives up her present place, Pauline could be a real goer at Foxtel.

Foxtel extract in book.

Foxtel

This happened a few years ago.  It was a Friday evening – 5 pm.  Just in time for the BBC on the war in Ukraine.  Followed by some footy.  It had been a long and traumatic day.  The shift of the final pieces of furniture into the new flat. 

Moving is traumatic – like a divorce in reverse gear.  The TV cabinet was one of the last pieces to come in.  (I must hide the TV.  Looking at a blank screen is not good – for me or the décor.)  That meant reverting to the old small TV that could fit in the cabinet.  Eduardo and his mate from Colombia made the switch and linked up the TV to the Foxtel box. – and it worked.  Bravo Eduardo!  But on pouring a red and turning it on – no signal from Foxtel.

BUGGER. 

You don’t need that after a day of moving.  Why did it work before but not now?  Well, I had little option but to ring Foxtel.  God knows how much I fear and detest that process.  I had endured five weeks with only the BBC because I did not wish to ring Foxtel.  It ranks with Telstra for pure bastardry.  What prompted the six week lay-off was that after an abortive hour or so on the phone, I got on to someone by SMS.  Bonzer – you ring me on the blower and we will fix it in no time.  Sorry, mate – not allowed.  Oh, go on.  No. I simply cannot.  I am not allowed. 

What was implied but not express?  I need the work and I will lose it if I depart from the Foxtel script – even just to be sane and decent.  And in the name of God, don’t let anyone even dare to suggest that Foxtel employs me! 

This is the point.  Even if you ever get through to a human being, you are speaking to a unit of communication rigidly controlled by a robot.  The people are forbidden to use what minds they may have.  They have in truth been converted into robots.

So, I take a gulp of red and make the call.  Just after 5 pm.  The process would conclude in darkness at about 7.30 pm that night.  Bob – the names are fictitious – had that strained, artificial voice we are used to at call centers.  Brusque, syrupy, script reading trying to mask nervous ignorance and straight fear.  Stick to the script.  Deviation not allowed.  For example, Bob could not process the fact that the removalist who had made the connection was not a Fox technician.  And the fact that I was operating the TV manually without a remote – at that stage of the move – sounded prima facie suspicious.  That provoked about two consultations with management.  In God knows what parts of the planet at either end.

The darkness of night descends every time you wander out of the trouble-shoot program.  Bob puts me on hold from time to time to get help.  He does not get it.  After about thirty minutes, Bob accepts that the issue is beyond him.  I ask why the set worked before but not now.  Every time, the answer gets more convoluted.  Way above Bob’s pay level – or that of anyone within cooee of Bob or me. 

One time we stop so that Bob can ring me back.  That makes me very nervous, but he manages to bridge the gap safely.  We discuss getting a technician.  It was of course ludicrous to suggest that Foxtel might be able to do that over the weekend.  Which happens to be the time when people who follow sport – that is, most Australian subscribers to Foxtel – most want it.  But Bob has continuing trouble with the schedule for technician calls.  He will ring me back.  Again.

The second call was too much for Bob.  After half an hour, I decided that Bob must have fallen down a very big hole.  Back to the blower.  Thank God for the relief and sustenance of the red.  But Sue has to start again from scratch.  I just want to know when the technician will be here.  No – there is a process that must be followed.  We must exclude all other causal factors.  (Did Sue see herself as Hercule Poirot?  Or David Hume?  Or Jean-Paul Sartre?)  This is after the usual delays and recorded warnings and lies. 

So, I have to prove my identity.  Again.  The person to be called back has to prove he is not a mirage or a fraud – and he might be wobbly on the first by now.  Sue had trouble matching my email address.  I gathered this may have been what sent Bob clean off the rails.  By the end, Sue gathered from what I had said and from Bob’s notes that I just needed to be told when the technician would arrive.  After more than two hours all up, Sue could not tell me – except that she thought it would be Monday, and that I would get an email about it – followed by an SMS.

I did get an email.  It was of course ‘noreply’.  Your function is to be neither seen nor heard.  We robots are not quite perfect yet.

In fairness, I should say that when I actually got to deal with a human person on the service call, he was a model of sense, practicality and courtesy.  Mark might be the Platonic form of the handyman.  Mark hails from England – around Milton Keynes.  We discussed the bus trip from Cambridge to Oxford – by the time you get to Milton Keynes, you might be sea-sick from the roundabouts.  (Going to the loo is not a good idea for the boys on that bus.)

Top bloke, Mark – pity about the outfit for whom he was subbing.

Twelve days later the box started giving trouble again.  The following day, I settled on the sale of my house, and I was looking forward to a rest with Mozart’s Idomeneo followed by the footy on TV – Easter Eve with a 2010 Bordeaux.  The box was completely gone now.  Another evening and celebration ruined by Foxtel.  On the blower.  Fifty-eight minutes – say a half of football.  As it happened, Regina was understandable and appeared to know what she was doing.

But a day or two later, the box failed again, and I settled for a broken service for a while before taking my life into my hands and picking up the phone again.  Then the box got the staggers seriously.  Some nights I had to reboot; some nights, not.  Then I got a rude SMS saying the direct debit had not been good for the fee for the service call.  I might be penalized or disconnected.  There should have been no fee because the fault was not with Eduardo, but with the Foxtel box.  So, I try to log in to pay a fee obtained under false pretenses.  The robot refuses the Password.  I apply for a new one.  Even then they lie.  ‘We have sent you an email.’  No, you have not.  Still, the robot kindly informs you that you may try again! 

And then comes the insult to beat all insults.  The robot asks you to sit a little test – to prove that you are not a robot!  It’s like when you see your contact at the bank for the fourth time in a week, but before they actually do something, you have to produce your driver’s licence to prove your identity.

I tried by SMS.  That failed.  So, I went to talk directly to the robot on the phone.  Five minutes active typing.  Did my father’s father fight on the Western Front for this kind of humiliation of his descendants?

And so it goes, as Kurt Vonnegut said a propos the bombing of Dresden.  Truly, truly – George Orwell let us off lightly with Big Brother.

Now a month or two later, I made a written complaint and got a ‘No reply’ response.  So, I just endure having to reboot almost every time I turn the box on at night.  Then after another period in the waste land, I got a new box after talking to a very pleasant lady who sounded like she may have been auditioning for the role of Flower of Delight in the next production of Kim.  Then the problem recurred in the new box.

Is it possible to conceive of a business being run honestly and decently when it prevents its customers from talking to them?

And don’t these outfits, and those who run them, know or care about the rage we feel at the contempt that they show to us?  This is a bad product sold by a bad company that is an unattractive child of two unattractive companies.

Just look again at the statement of ‘Foxtel Values’ in the inscriptions at the start of the book.  As bullshit goes, this is transcendental.  And is it lawful for directors of a trading company to say that customers come first – ahead of the shareholders?

The staggering corruption of government in the United States prompted me to look again at what Sir Lewis Namier, the great English historian said about corruption in England in the eighteenth century.  It was Namier who rewrote the history of that time by looking at how the whole machinery of government was run on what they called patronage and we call corruption.

Here are some citations from his writing.  What strikes me about the Trump family is how brazen they all are and how tamely acquiescent their victims are – and the people are the victims.  Namier was talking about bribery while Trump specialises in enrichment – but the same moral or ethical considerations apply.  And at least in Australia, I think the same legal consequences follow.

The proper attitude for right-minded Members was one of considered support to the Government in the due performance of its task…But if it was proper for the well-affected Member to co-operate with the Government, so long as his conscience permitted, attendance on the business of the nation was work worthy of its hire, and the unavoidable expenditure in securing a seat deserved sympathetic consideration.  …. Bribery, to be really effective, has to be widespread and open…

Trade was not despised in eighteenth-century England – it was acknowledged to be the great concern of the nation; and money was honoured, the mystic common denominator of all values, the universal repository of as yet undetermined possibilities…. A man’s status in English society has always depended primarily on his own consciousness; for the English are not a methodical or logical nation – they perceive and accept facts without anxiously inquiring into their reasons or meaning.  (England in the Age, etc., 2^nd Ed, 1961); ‘…. Fox would probably have found it easier to account for his fears than for the money…

On Charles Townshend: He did not change or mellow; nor did he learn by experience; there was something ageless about him; never young, he remained immature to the end…Conscious superiority over other men freely flaunted, a capacity for seeing things from every angle displayed with vanity, and the absence of any deeper feelings of attachment left Townshend, as Chase Price put it, ‘entirely unhinged’.

I have put emphasis on the extent of the moral collapse.

The work of Namier generally led me to say.

The English aristocracy survived, almost alone in Europe.  They had been able to reach an accommodation with the Commons in shaping the English constitution, and they reached an accommodation with business and money in shaping British trade.  This triumph of the English aristocracy is unique in all Europe, and the failure of English historians to notice it, let alone celebrate it, is a sad reflection upon the provincialism and specialization of too much of English historical writing. 

Namier saw it plainly, but he was from out of town.  Maitland frequently stressed the need for a comparative outlook, and was deeply interested in German history.  French historians such as Marc Bloch and Georges Lefebvre laced their analyses of the history of France and Europe with comparisons with what was happening across the Channel, and their work was so much more illuminating as a result. 

But English historians do not often return that serve.  How often do you read in English history how the French law of derogation precluded the French lords from engaging in trade?  For example, under the heading La Noblesse et L’Argent, (The Nobility and Money), Georges Lefebvre remarked that ‘the French lords envied the English lords who became rich on mixing with the bourgeoisie and who, thanks to their Parliament, formed the ministry and government of the nation.’

The English lack of interest in Europe has borne fruit, and is currently celebrating a kind of mordant vindication, but the mind-set may also be at risk of being described as insular – definitively insular – with all the darkening and proud exclusion that that state of mind entails.

Sadly, the United States as it stands is a very different beast.

Most Australians look on sadly at the horror currently on show in the US – in large part because most of us are fond of it.  Here are two items to cheer us up.

First, the World Cup has been terrific – in spite of the glitch put on by two corrupt men who found and deserve each other.  As has been the case in my six visits there, visitors are charmed by the hospitality and the willingness to do business of the hosts in some of the world’s great cities.

Secondly, the U S press, the Fourth Estate, has excelled itself – in showing up the failures of all other estates.  I have followed Maggie Haberman for years.  She is joined by the Australian Jonathan Swan as consummate professionals in the book Regime Change.  It is a very disturbing work – that is now saluted in an editorial in The New Yorker.  (OK – they have tickets on themselves, but they have courtesy – they sent me a knockback so charming that I framed it.)  The book reminded me of the dark days of Vietnam and Nixon.  The U S has faults, but we learn about them from Americans – like Woodward and Bernstein, and Haberman and Swan.

All, then, is not lost.

In 1992, I had to conduct a public inquiry into whether an American gaming machine operator should be given a licence to operate in Victoria.  The issue was red hot politically, and forensically it was the trickiest I have had to deal with.  Both sides wanted the hearing closed – the applicant for fear of damage to reputation, and the police because they had a number of confidential sources.  Counsel said it would take months.  We narrowed the grounds alleged against the applicant down to two potentially fatal objections, and told the trolley – bearing lawyers that they could have four days. 

One ground was that the applicant could not be trusted because he associated with known criminals.  Another was that he had lied to a gaming authority in the U S on an issue that could not be dismissed as trivial. 

We decided against the applicant on that second ground, and I did not feel the need to express a view on the other.  For some reason that I still cannot articulate, I felt reticent about the issue of associating with undesirables.  It savored of the old days and the Consorting Squad. 

I would not feel that reticence now.

Senior Counsel for the Police opened his case by saying that the applicant was asking the people of Victoria to take him on trust.  That sounded spot on to me, and it was in substance conceded.  It is I think part of our law that any person holding significant public office – certainly any minister of government – holds an office of public trust.  The slippery forensic term is ‘fiduciary’.  The applicant for the licence was putting himself in that position under the terms of the relevant legislation.  A bent person in that position could cause real harm in the community.

A person holding such an office faces problems, to put it softly, if it is shown that he or she regularly associated with – the dictionary definition of ‘consort’ – with criminals.  Let us take the President of the United States. A number of people he associated with regularly have been convicted and imprisoned.  The President was merely convicted.

Having someone you dealt with closely found guilty of serious crime must cast doubt on your judgment.  We can all be let down by friends or family, but after just one or two, the defence of accident wears thin.

Among other things, it might raise questions about not just the conduct, but the sense and the integrity of the office holder.

If the relationship touches on criminality, or unfaithfulness, there is the risk of pressure or blackmail.  (President Kennedy was an obvious example because of his licentiousness.  Trump has a worse problem with Epstein; and, possibly, Putin.) 

So it is with accepting large donations – which brings the risk, or at least the suspicion, of corruption.  How many people in business donate money to an actual or potential member of government just out of the goodness of their hearts?  If they are dealing with corporate funds, at least in a public company, is it lawful to dispose of capital with no expectation of any corporate return?  (How sensible was it for Nigel Farage to say that a gift of millions of pounds was made for private purposes, when it was expressed to be made so that he could continue safely in public life?)

It is here that we understand why military law referred to conduct unbecoming an officer (or prejudicial to good order and military discipline).  Conduct unbecoming refers to standards expected of officers, or that may dishonour their position or character or compromise their standing among others.  These are big issues that you may not expect to see dealt with under the general law – but they are vital in bodies set up for general public welfare.  In other words, they are vital to the regulation of at least some bodies of public trust. 

The old notion of conduct prejudicial to the regiment still finds expression in our law.  Our Defence Force Discipline Act, 1982, s 60 makes it a criminal offence, punishable by imprisonment, for a member to commit any ‘act likely to bring discredit on the Defence Force.’  (The primary offence is ‘prejudicing discipline.’)  You may be surprised by that wording, and I have never heard of its being invoked, much less leading to a jail sentence. 

But it addresses the kind of problem that may arise in a business or political context.  A fractious MP engages in faction fighting by taking the brawl to court – so causing immense harm to the standing of the party: in other words, he or she has committed an act ‘likely to bring discredit on’ the party.  It is called hanging out your dirty linen.  A very well-known footballer publicly expresses contempt for gay people – and the major sponsor of the footballer has a gay CEO.  The owners of a halal butcher’s shop in Footscray put a One Nation poster on their front window.  A director of a well-known trustee company gets on Sky News at night to celebrate the billions the Trump family is making out of Bitcoin and says that profiting from holding a position of public trust is the logical conclusion – nay, the ultimate triumph – of capitalism.  Gordon Gecko was right.  Greed is good.

(If you wish to see what our law says about disqualification of directors, and you have a taste for the macabre, you might look at s 206F of the Corporations Act, 2001 and compare that with the English act. This is in legislation said to be longer than War and Peace.)

In short, rank carries responsibilities, and appearances count.  You may recall the very old saying that justice must not only be done – it must manifestly be seen to be done.  Fiduciaries should recall the story of Caesar’s wife.  People whose conduct or history cause the public to lose faith in a public body may well be unfit to be members of that body.

That is why I would approach the case of the American gaming regulator differently now. 

It is also why I think that Donald Trump is unfit for any kind of public office.

That brings me to another ground for that conclusion.  Consorting with bad people may cast doubt on the judgment of a person, and it may also adversely affect the reputation of the relevant organisation.  The case of the footballer’s offending gay people is commonly the subject of the law constituted by the contract under which he is be is engaged.  (As I recall it, the Code Napoléon recognizes that in forming a contract, the parties make a law for themselves.)  This issue is not the subject of any statutory law I know of.

The common law, unlike Roman Law, was not in favour of importing notions of good faith under the general law of contract.  But as between principal and agent, and employer and employee – relations that fall under the umbrella of ‘fiduciary’ – the law imposes obligations of good faith, and loyalty.  (You can trace the obligation of loyalty back to feudal times.) 

It is a gross breach of the obligation of loyalty for an officer or agent of a public organisation publicly to disparage that organisation.  If the Chairman of BHP or the Australian Opera said his organisation had been hopeless for many years before he was appointed, he would be removed from office at the first opportunity. 

Yet the President of the United States does just that so often when he refers to its role in the world.  He looks to care only for himself, and to see all the world solely through his own perverted prism, as he enforces his own vulgarity on the presence of the Union in the capital, while obliterating – a favourite term among the goons – every part of what we call the rule of law that underlies our claim to civilization.

Seldom he smiles, and smiles in such a sort
As if he mocked himself and scorned his spirit
That could be moved to smile at anything.
Such men as he be never at heart’s ease
Whiles they behold a greater than themselves,
And therefore are they very dangerous.

In broad terms, most people I know here and in England and Europe think well of the United States.  Here are some aspects of life and governance in the U S that give us pause.

• Guns.  The first aim of government is to preserve the peace.  The U S Constitution refers to ‘Tranquillity’ and the ‘General Welfare’.  The U S has not achieved this first and most vital objective, and it sickens the world with its likeness to the Wild West and the days of the gangsters – and its ‘thoughts and prayers’ for the dead.
• The Welfare State.  The U S refuses to provide the basic level of welfare adopted by the rest of the civilised world.  Both of these failings come from an inclination to ideology that is rejected in most of the English-speaking world, and show why people like us would never want to live in the U S. 
• Ideology.  And this leaning to ideology – theory over practice – is the opposite to what we have been brought up to here under the Anglo-Saxon common law.  They have a reverence for the Declaration of Independence and the Constitution that looks as alien to us as it is naïve.  Their addiction to this moonshine is a fundamental difference that we might be forgiven for describing as immature.
• World leadership.  The U S reached its apex in helping Germany and Japan recover after the Second World War.  Then came Cuba, Vietnam, Cambodia, Iraq, Afghanistan, and, now, Iran.  All faith destroying failures.
• Failed presidents.  Too many since Eisenhower have been flawed intellectually or morally.  They have also shown a worrying tendency to keep it in the family – nepotism.
• Acquiescence.  By and large the electorate lets the system get away with all this – although its voting systems are badly bent.  Their addiction to ideology has led them to refuse to make voting compulsory – something that would have delivered a very different political machine.
• God.  Religion has influence in the U S that would be unthinkable outside Asia or Europe.  And it appears to us to be incandescently hypocritical and bad, for both God and the nation.  From the Puritans on, they have followed a crude Darwinism that equates success with the dollar with favour in the eyes of God.  They could never have adopted laws for dealing with poverty that were made by the English parliament under Elizabeth I – before white people arrived in America.  They now have beggars on the street in the richest country in the world.  That appalls us.
• Exceptionalism.  From the Pilgrims through the Founding Fathers and beyond, they have seen themselves as exceptional – God’s chosen people.  The Puritan stain persists.  Their tourists used to be notorious braggarts, so that we were relieved when we went to America to deal with sensible people who wanted to get on with us – and who did not have a chip on their shoulder.
• Patriotism.  Except when it comes to sport, we, and the English, do not embrace ‘patriotism’.  The Americans do, big time – as part of their exceptional proximity to God.  This is not new.  In 1838, de Tocqueville wrote: ‘Nothing is more embarrassing in the ordinary intercourse of life than this irritable patriotism of the Americans.’
• Race.  Their problems of race are such that their treatment of the Black American puts in the shade their treatment of their First Nations.  And it, too, is linked with their exceptionalism.  The Declaration of Independence was premised on a lie.
• Inequality.  People who know more about business and money than I do say that the American economy is unstoppable.  The U S has the most resilient business model in the world, but does it depend on its workers’ having no effective group strength or political expression?  And the inequality of wealth and income is morally appalling and has a life-threatening aspect that blew up a whole nation in 1789.
• Intemperance.  Partly because of matters referred to above – like ideology and God – U S politics have lost the tolerance and restraint that are essential to democracy.  If its business model looks frayed, its political model looks busted.
• Corruption.  Again because of its attitude to the State, God, and the Dollar, the U S is susceptible to corruption that is now a cancer on the political process and the nation as a whole to an extent not seen outside of Asia or Africa.
• Blindness.  In spite of all these intimations of failure, they carry on blithely – insolently, even.  They do not know or accept how Europe and the English-speaking world now think so differently of them.

When you list those differences, you see immediately that the current president, Donald Trump, perfectly exemplifies each such failing of the U S – to the letter.  Trump has no friends and he will leave the U S in the same condition. 

A perfect example is his intervention in the World Cup.  He defiles everything he touches.  (Including the Fourth – when out came the hammer and sickle!)  He has now lowered the sporting reputation of the United States to that of Russia – and his great mate.  But his ego leaves no room for shame.

We are not talking of a failed state, but a fallen republic, that we look on with the despair described by Shelley.  But Trump lives fiercely in his own Wonderland.  He has barely ever read a book.  He therefore would not know of Shelley, or that a fairy tale by Hans Christian Andersen gave us the phrase ‘the emperor has no clothes.’