When Dyson met Rupert – and the High Court of Australia beheld the gutter




It is not likely that Mr John Setka of the CFMEU has ever felt the need to tell a journalist that that he has often felt the need to express his dissent in the minutes of the union because he did not like the writing style of the other organizers and officers of the union – that he does, for example, have a real aversion to split infinitives, dangling participles, or a perceptible but unwarranted variation in the number of a noun that some others tolerate to avoid treading on the toes of those who get exercised over what is called sexism. These are some of the things that Mr Dyson Heydon, QC discussed on the ABC when reflecting on his time as a justice of the High Court of Australia. That court is our highest court, and by and large its members have served us well. It is a reputation devoutly to be preserved.

There was always going to be a problem in Mr Heydon continuing to do just that when he accepted the invitation of the current Prime Minister to go down into the world of Mr Setka and the phantoms of the enemies of Julia Gillard, the outgoing PM, and our first woman PM. Julia Gillard had been targeted by members of the press, especially the Murdoch press, about allegations of what had passed between her as a solicitor and a boyfriend twenty years ago. Yes, you heard – twenty years ago; more than three times longer than the standard limitation period fixed by the law for permitting civil claims to be raised.

The employees of Mr Murdoch, and their unattractive political sponsors like Senators Abetz and Brandis, to this day put their hands on their heart and say that they have pursued this issue in the public interest because what Julia Gillard did twenty years ago reflects on her fitness to hold office as Prime Minister. Well, if they are prepared to say that with a straight face, they will also be the shrillest in objecting to any suggestion that this kind of personal denigration could only have been wrought on a woman. However that may be, the attack on Julia Gillard, especially after she had lost office, appeared to many Australians to reach new lows, even by our standards, of partisan political bitchiness and moral vacuity in Canberra.

The CFMEU is what is called a militant trade union. It has succeeded to the position of the BLF as the Aunt Sally of choice for hardened and unlovely champions of the class war like Senators Abetz and Brandis. The public inquiry headed by Mr Heydon, and named after him, was predictably branded as a witch hunt, and we have no problem in imagining what the reprisals will be like, but it was always hard to see how anyone like Mr Heydon could get down into this gutter and come out with a reputation enhanced, or even preserved.

Mr Heydon has impeccable credentials as a member of the Establishment, or at least as close as Sydney can get to any such thing. He was educated at Shore School before going on to win the University Medal at Sydney University. He was a Rhodes Scholar – well the whole nation is coming to terms with the fool’s gold that that distinction may hide – but his winning the Vinerian Prize at Oxford is a good sign of a very bright and concentrated academic mind, if not a driven one.

Whether that can translate into good judgment and common sense is another question, especially when those early academic prizes are followed by the active pursuit of an academic career. Mr Heydon was a Fellow of Keble College Oxford before becoming a professor in Sydney and the Dean of the Law School. He is the author of works in the wantonly superior and acerbic style that some elevated lawyers in Sydney appear to find satisfying. He never sat as a trial judge, being appointed straight to a court of appeal and then to the High Court. I do not know if he ever appeared in a criminal trial or before a jury.

Mr Heydon was happy to tell those listening to the ABC that he wears as a badge of honour the title of conservative black letter lawyer. He acknowledged that others regard that term as an insult. Mr Heydon is not therefore averse to taking sides, and being seen to do so. South of the Murray, the Sydney black letter lawyers, the ‘whisperers’, are thought to have tickets on themselves and to be too brittle for their own good. Some of the sniping that they engage in looks downright bitchy, and you can see it in print, and in works that assert claims to scholarly merit. They can engage in behaviour that looks anything but conservative.

Mr Heydon showed some of these traits while he was on the High Court. His Honour rejected the wisdom of our ancestors that dissenting judgments should be discouraged if not banned. Some see dissent as heroic; others see it as a nuisance. But too much division and dissent debases the coinage of the court as a whole, and can leave a recidivist dissenter like Mr Heydon sounding like the boy who cried wolf.

His Honour was hardly pursuing his colleagues with terms of endearment if he told them what he told the ABC – that some of his colleagues don’t mind split infinitives or dangling participles ‘so at that low level one doesn’t want to agree…..They don’t write grammatically as I understand Anglo-Australian grammar.’ Well, so much for humility, tact, and team spirit. And people who beg to differ on those grounds do not do so out of any felt inferiority to those around them. Mr Heydon has the hallmarks of an anal intellectual snob.

By the time his time on High Court had expired, Justice Heydon had become a compulsive dissenter, and he could express his views in language that was at best curious. In the case about packaging cigarettes, his Honour said:

After a ‘great’ constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s. 51 (xxxi) , may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.

Putting to one side the imputation to a polity of a visceral emotion, which would have entertained medieval Schoolmen, is this what we expect from the justices in our ultimate constitutional court – to speak of the hatred of the Commonwealth of a part of the Commonwealth Constitution? What do these people do to each other up there is that bleak suburban fastness of Canberra? What sort of masonry lies buried here? Where is the calm repose of the dispassionate jurist?

Mr Heydon was appointed to the High Court by Prime Minister John Howard, who is the mentor of the Prime Minister who appointed him to conduct this royal commission. This could be called keeping it in the family, although few Australians will reflect with equanimity on the suggestion of Mr Abbott that he is the political love child of John Howard and Bronwyn Bishop.

The government was aware that its bona fides were in issue – to put it softly – in this royal commission. They had to find a safe pair of hands, a man beyond reproach. How could you do better and more safely than with a former High Court judge who glories in his black letter conservatism? All that would have been enough for a government that puts slogans where thinking should be, and which puts political advantage over principle.

Well, it was never likely that Mr Heydon would, like Sir Garfield Barwick, be described as the hit man of the Establishment, but there were obvious difficulties in his appointment to this political task. With the best will in the world, Mr Heydon would have no idea of the world of people like Mr John Setka or Ms Kathy Jackson of the Health Services Union. You do not learn about them at Shore or Keble College, Oxford. You might as well ask Mr Setka to give advice to Mr Heydon’s club in Sydney, the Australian Club, on the etiquette surrounding the inviting of ladies to lunch at that club. (You don’t.) It is not as if Mr Heydon has spent time knocking back beers at a South Sydney boozer talking to people with pictures on their arms and with a bit of previous in their cupboards about the contribution of the blackfellas to the latest flag of the Bunnies. This is one factor in appearances when appearances count. It rather savours of two of the chaps from Oxford getting together to advance the interests of those who share their view of the world over the interests of those who are not so well off. Put differently, what member of the CFMEU or any other union target could give a bugger what somebody like Dyson Heydon, QC said about them? This is not just class that we speak of – it is caste.

But it was not just the sheltered, cloistered upbringing of Mr Heydon that made this appointment inappropriate – it was his lack of experience as a trial judge. Royal commissioners are not judges and they do not exercise a judicial function. They are part-time public servants conducting an inquiry and they are anything but independent of those who give them the job. But it is useful in many contentious inquiries to appoint someone who has judicial or at least forensic experience in determining issues of fact arising from conflicts between witnesses, and to do so with a person who is as distant from the fray as possible. Neither of those ends was achieved here.

Nor would Mr Heydon have the faintest idea of what might be involved in running the office of a solicitor, which was at the heart of the query about Julia Gillard and her boyfriend. Had Mr Heydon ever practised as a solicitor, it is inherently unlikely that a firm of which he was a member would have acted for a union, let alone one as punchy as the CFMEU. But even if he had acted as a solicitor for the big end of town, he would have been able to smile in a more informed way on some of the more banal suggestions about the conduct of Julia Gillard as a solicitor. They were and are being made by people who do not know what they are talking about.

When judges are sitting in court, they observe a fiction that says that they are not affected by what they read in newspapers, but it must have been apparent to Mr Heydon that the job he was being asked to do had more wrinkles than my aging kelpy cross. Most Australian lawyers know the kind of juristic mayhem that can flow when the industrial and criminal laws combine. There are two words that cause veils to descend over people’s eyes when they are mentioned in an Australian court – one is tax; the other is industrial.

The BLF kept fighting lawyers (including me) in feed for more than a generation. A rogue outfit like the BLF pushes the legal system beyond its snapping point. Judges find themselves saying things that they instantly regret, but they feel provoked and pushed. The BLF provoked a Labor government to pass a law of proscription and annihilation that would have made Adolf Hitler blush. But what appeared to be the case to someone who had got to act on both sides of a long running kind of civil war was that the more that governments lashed out at those in charge of these outfits, the more thoroughly were their members locked in behind them. You get a similar reaction if you say something rude about the Collingwood Football Club. Class and faith (bigotry) are as thick as blood.

And was there not something just downright bloody unseemly about getting a former High Court judge to inquire into the conduct of a former Prime Minister as a solicitor more than twenty years ago, and after her time in office had expired? Is this really all that the people of Australia can expect from those who claim the right to run this bloody country?

The website of this inquisition instigated by Mr Abbott – there were others – describes it as a ‘Royal Commission into Trade Union Governance and Corruption’. That title might be thought to beg the main question. Can you envisage an inquiry into ‘Corruption in Parliament’ or ‘News Limited Governance and Corruption’? Of course, Julia Gillard is not mentioned in the terms of reference, but those terms do have the air of Paris in 1791 about them. They start by referring to governance arrangements and financial management of unions, and say that the inquiry can extend to whether unions ‘are used, or have been used, for any form of unlawful purpose’ – like getting a parking ticket. Then five unions are targeted by name. Then there is the Law of Suspects, or the Julia Gillard clause, a duty to inquire into ‘the activities of any other person or organisation in respect of which you consider that there are credible allegations of involvement in activities mentioned’ above. In the name of heaven, is this our idea of the rule of law?

Well, no one would call either Senator Abetz or Senator Brandis subtle when the flame of their hatred for trade unions and the Labor movement is aroused. Nor is it hard to see which way reprisals might go. Just substitute trading corporations for trade unions, name members of the News Group, and then subject their accountants and lawyers to a snow job. Just think of the fun you might have with, say, a casino operator. Mr Heydon and his staff could get quite an education into what happens in the swish cloud capped offices of advisers to the better people. It could be a real eye-opener to many people to have observed how rivers of money flowed over unopened files from political donors to politicians who had the yes or no on the only ticket in town, especially if those moneys followed routes that suggested that they had not passed too closely under the gaze of Her Majesty’s Exchequer. We could even do the same to the likes of Google or Amazon – but we of course would not have the balls for that.

A royal commission, as the name suggests, is a manifestation of royal power. Her Majesty, through her advisers and officers, good monarchists all down here, is proceeding against her Australian subjects, named or otherwise, to achieve a political objective. The Domesday Book was a good case. The Queen is in a way going against or sending against some of her subjects. All of her ancestors have promised not to do that ‘except by lawful judgment of his peers or by the law of the land’ since clause 39 appeared in Magna Carta in 1215, but ancient rights must give way to current grubby political imperatives.

So, the Vinerian Scholar entered into this royal commission and into territory that would be less familiar to him than Mars – or the home of the South Sydney bunnies. He also came with a propensity to pedantic dissent from the mainstream, and a capacity to say things that put your teeth on edge. He looks like an unsettling nerd out of sync with the rest of us, a flat white made flesh, the lone Ranger sans Tonto, more of a protected species than a living national treasure.

This royal commission got off to a very bad start. Word got out that Senator Brandis – known as ‘Bookshelves’ for his propensity to maintain a library at our expense – had claimed nearly $1700 for travel expenses attending a wedding. How could attending a wedding relate to his occupation as a politician? Some said that the Senator had appeared to enjoy himself greatly on the dance floor at the reception. But this was no ordinary wedding. The groom was a shock jock, and the Senator and his Prime Minister like to be on good terms with shock jocks. More than that, the Senator said that he saw his attendance at this wedding as a chance to collaborate with the said shock jock on the abuse of expense accounts in the Health Services Union. The HSU was the initial main target of the forces of righteousness – it involved a crooked MP from the other side and was offering a dissident who was promising the world to those who wished to destroy the union. The Senator said that he had done nothing wrong, but that he had decided to repay the money anyway. He thought that any uncertainty should be resolved in favour of the taxpayer.

This tends to be a hallmark of members of this government – they say one thing, and then they do the opposite. They are incapable of owning up to lapses, and God knows that none of us is incapable of lapsing; Adam and Eve saw to that. That just leaves the question of the views of the man who is now our Attorney General on the sanctity of marriage. In defending his right to be indemnified for the cost of attending the wedding, the Senator had said that what mattered was the purpose of the travel, and not the nature of the event. Even some tax lawyers might blush at that, but appearances, we know, can be deceptive. Just when you thought that the Senator was there to celebrate the union into one of a man and a woman under God, he was pursuing a high matter of state on our behalf. The Senator, an exemplar of eternal vigilance, was investigating false expenses claims. Snoops like the Senator could put the FBI clean out of business.

And so Justice Heydon, as he now was not, became exposed to a part of Australia that he had apparently not even suspected, a crude demi monde where people in positions of trust dishonestly took advantage of their positions to benefit themselves at the expense of others who were not so fortunate.

Two of the worst examples were a man called Thompson and a woman called Jackson. Each of them caused revulsion across the nation as representing a moral slide that people see across the whole of our public life. Thompson, a member of parliament, has since been dealt with by the criminal law. To the amazement of many, and the dismay of some – including me – Thompson was not sent to jail. (Well, by tradition in this country, no one ever goes to jail because of a royal commission. Another rather anal former judge called Cole, who was not the working man’s friend, ran a huge show into building unions that saw trainloads of dollars head to the legal part of town, and when the tumult and shouting had died, Her Majesty’s prisons received no new guests.)

Kathy Jackson might fairly be described as sui generis. If she has any kind of moral compass at all, it is hard to detect. She is yet to be charged, but she is facing civil claims to recover amounts she applied to her own benefit. She claims that she has not been well. Unfortunately, she was one of the main drivers used to get this inquiry up and running, and she has shown herself to be as unreliable a source as you could find.

The high light of this low life came when this witness, Kathy Jackson, took exception to being examined by a barrister whom she had slept with. Mr Heydon did not have much trouble rejecting this application – its juristic foundation was at best obscure – but there was at least some exquisite irony in the fact that the relevant disqualifying behaviour was of a sexual nature and was said to have occurred some twenty years beforehand, the period that we give as a rule of thumb to measure the span of one generation in human life. And the source date for the start of the conspiracy theories against Julia Gillard. Monty Python was up and about in Mr Heydon’s commission.

Perhaps fortunately – perhaps not: it might depend on whether you take sides and if so which – the awful tawdriness of the parade before Mr Heydon was eclipsed by the frightful failures of politicians elsewhere. Senator Arthur Sinodinos was the hope of the side of the new government, the special protégé of Mr Abbott’s mentor, but his unfamiliarity with the real world made him a soft target for seduction and left him with the reputation of a greedy man of no judgment whatsoever. His ministerial aspirations are shot. In the meantime, a whole cricket team of MPs in New South Wales were getting rubbed out for being on the take. If the allegations against the CFMEU now recalled those gainst the BLF thirty years ago, the stupidity and greed of people like Thompson and Jackson looked all too recognizable as being par for the course among people who mistakenly regarded themselves as being their superiors. It all just looks like a wasteful case of déjà vu.

And the main attack failed; the pursuit of Julia Gillard has been finally pronounced to have been what all but the bent or demented always believed it to have been. Mr Heydon said:

Findings are made that Julia Gillard did not commit any crime and was not aware of any criminality on the part of these union officials.

There was a time when a good trial judge would have just stopped there because he or she had just disposed of the relevant issue. But Mr Heydon went on to opine that part of her legal work ‘must be regarded as a lapse of professional judgment, but nothing more sinister.’

The introduction of the degree of comparison might suggest that in the opinion of the author, the error of judgment was in itself ‘sinister’. If you look that word up, you will get ‘prejudicial, unfavourable, darkly suspicious.’ Mr Heydon also used the lesser epithet of ‘questionable.’ Could it be that this long quest would just end with a question? How would it have gone down if a lesser lawyer, say a solicitor, had dared to question, en passant, Mr Heydon’s professional judgment as a barrister or judge?

Well, given the acquittal of the main target, were the losers graceful if not perhaps contrite? Good God no, this is Mr Rupert Murdoch’s Australia. The leader of the pack said this:

If the facts had been established beforehand, Ms Gillard would not have become PM. Supine sections of the media, a law firm cover-up, and strident attacks on those who tried to investigate ensured little of substance leaked out until 2012. But public accountability eventually worked. The royal commission’s findings, rightly, have the most force.

There you have one of the advantages of being God or Rupert Murdoch – you do not have to say sorry, and you can rewrite history. And you can talk bullshit forever.

Mr Dennis Shanahan was as ever keen to put the case for the PM, but even he had to make an awful concession.

From the beginning, Tony Abbott’s Royal Commission into Trade Union Governance and Corruption looked like political payback from the new Coalition government.

When Julia Gillard came into the focus of the inquiry it looked even more like it and made it almost impossible for the government to argue otherwise.

You will notice that we are speaking of appearances, but in Canberra that is as deep as you get. Outside of the PMO, that is as close to the horse’s mouth as you will get – even if Mr Shanahan was being a little coy when he said that the main purpose of the inquiry was ‘shedding light on corrupt union behaviour.’ That kind of corruption is as old as that of our parliamentarians. It starts with Genesis.

One report in The Age began:

Beyond the question of just what has been achieved by using a royal commission to pursue Julia Gillard is one that will not be answered for a decade or two. It is whether we have witnessed a turning point in Australian history, where a political system based on Westminster has morphed into one that operates in Washington.

Another report in the same paper was less friendly:

What do you do when your star witness in a politically motivated inquiry turns out to be an alleged thief who may have stolen more than $1 million? Just ignore it. The credibility of the Royal Commission…should suffer a serious blow from its glaring omissions on the allegedly corrupt behaviour of Kathy Jackson and how it has treated her throughout these hearings.

(The report does, however, refer to outstanding litigation on these issues.)

Libel lawyers never tire of telling juries about how we can never know how far the poison of a libel has reached, and the AFR has a perfect example of the harm that we have inflicted on Julia Gillard:

The interim report highlights howling gaps in the rules on union slush funds, with a sidelong glance at former Prime Minister Julia Gillard’s veracity as a witness in relation to one of them.

For the Abbott government, the commission is a rare bright spot – another year of hearings, a final report and likely prosecutions. This should be a stick with which to beat Labor, which remains in denial, all the way to the 2016 election – provided the government doesn’t overplay its hand.

Now all that kind of stuff is the staple of what passes for politics and journalism in this country – a less than elevating rough and ready blow by blow account of a shit fight. But that ugliness has been fed here by the lack of experience of this commissioner in trying controverted issues of fact. Mr Heydon is quoted in the press as saying:

Normally cross-examination of a non-expert witness is a contest between a professional expert who is familiar with every detail of the case and a relatively unwary member of the public who is not. But Julia Gillard had twenty years’ knowledge of the case and immense determination to vindicate her position. She was, so to speak, a professional expert on her own case.

Two reports in The Age quoted the same words, as if there was something wrong about them. There was. Mr Heydon, that is not how trial courts work. It may look that way to those in the proverbial ivory tower of Keble College Oxford or the High Court of Australia, but it is not what happens day to grinding day in any court in the land. The mystique of cross-examination is grossly over-rated, and as an artful technique it is nearly dead. You grope your way hoping not to get smacked or ambushed. The days when you are ‘familiar with every detail of the case’ do not happen often, if at all. If you have to listen to others do it, you try to help them reach the point, and sometimes just watch as people go over the precipice; you have to help them reach the point, because other litigants are waiting their chance to get this job done so that they can get on with their lives. Sir John Starke was the leading cross-examiner of his day, and he told me, more than once, that he always felt relief if when he sat down he was no worse off than when he started.

All that, apparently, has not been the experience of Mr Heydon, QC. We are not talking about what some call the sporting theory of justice. Rather, Mr Heydon looks on cross-examination as a kind of dressage contest where points are awarded for form, deportment, and style. The problem with treating the witness box as the scene of sport or even a contest is that the white hats may not do as well as the black hats. The black hats normally have the money behind them.

What Mr Heydon appears to be talking about is not cross-examination but the ghastly ersatz routine that is killing it. Counsel charge a fortune to read anything they can lay their hands on. They then bring their computer or wheelbarrow to court, smile wanly at the witness, and say; ‘Now, Sunshine, you and I are going on a little journey.’ They then proceed to circumnavigate the world, mostly to no effect, except to enhance their bank balance. Documents are flagged or tabbed to act as prompts or cues, and you neither see nor hear any real cross-examination at all. The process is tailor-made for the novice at one end and the truth-dodger and game-player at the other. We saw it all on live TV at the Leveson Inquiry. It was a boring as it was fruitless. I wonder if in truth Mr Heydon has ever seen a witness cross-examined at all.

But there is an aura of complete unreality about this. Many Australians thought that Lindy Chamberlain had not reacted as you would expect of a mother who had just lost a child. What is the prescribed text-book reaction of a mother who has lost a child and then been falsely accused of murdering her own child? It was, I suppose, the view of Julia Gillard that she had been falsely accused of criminal conduct more than twenty years ago by those in the employ of a world famous muck-raker and then exposed to a public inquisition on those charges by a vengeful and unprincipled gaggle of politicians who recruited a former High Court judge to lend their ghastly abuse of process a veneer of decency. What might be a matter of comment is that she did not just offer to slap their impertinent faces. It is fatuous to comment on the determination of the target to vindicate her position, and it passes belief that the tribunal could refer to the passage of twenty years as anything but a burden and barrier for the person in the dock. For all we know, she may have been weighed down by warnings of what might happen if she split an infinitive or dangled a participle.

All that the commissioner had to say was what he said under ‘findings’, but Mr Heydon, in spite of the difficulties that he thought that he faced in making any finding on this contest, involving one strong-willed witness who happened not to be a ‘relatively unwary member of the public,’ felt the need to refer to ‘a lapse of professional judgment, but nothing more sinister.’

It is like a throwaway within a throwaway, and with a level of condescension that would have brought a glow to the cheek of Lady Catherine de Bourgh. I hope I may be forgiven for referring to something that I wrote about an incident that happened to me nearly thirty years ago when I first started to hear and determine cases involving issues of both fact and law, but I find it instructive. It was in 1985 and the case involved a big tough earthmover from Gippsland who at one time threatened to belt a rather longwinded lawyer for the crown who had almost no idea about cross-examination. I thought that this guy was not beyond playing games with the tribunal – me! – and I thought I might let him know that. I prepared a draft of my decision.

…..I thought as a matter of courtesy, or, perhaps, comity, I should submit it to my President, a nice man, a judge called Alwynne Rowlands. He called on me and said that I had some journalistic flair, but that I might want to reconsider one remark I had made about the taxpayer. ‘He will have to live with this for the rest of his life.’ That was wonderfully good advice, and I have tried to recall and follow it. We should try to avoid casual, unnecessary injury, and the most important person in court is the loser.

What the President was suggesting was the forbearance of the ninety-fourth sonnet, and there is much to be said for it in those that have the power to hurt.

And, again according to the press, Mr Heydon then allowed himself to get sucked in to party political talk when he remarked of one submission on behalf of Julia Gillard that ‘It is a strange submission to be advanced on behalf of a former politician belonging to the Australian Labor Party tradition – a tradition of social democracy.’ It would have been preferable for the commission to have avoided any appearance of making party political points, whether of a darkly droll ad hominem nature or not. We need our judges to be above that sort of stuff. Political parties are as popular as churches, and Mr Heydon is not the kind of man that you might associate with a tradition of social democracy, whatever he may have meant by that protean term.

The reception of Mr Heydon’s remarks from the warriors in the trenches on either side was to be expected. Senator Abetz told The Australian that the report made ‘a very, very strong case’ – that was an interesting word, ‘case’ – that the labour movement was not tainted ‘by the odd rotten apple in the barrel’ and that there were in fact ‘many, many rotten apples at the very highest levels of the trade union movement.’ That is the way that people like Senators Abetz and Brandis talk. It is not Vinerian prize-winning – it is mind-turningly dull.

The CFMEU in its turn responded in kind:

Like previous royal commissions, the Heydon commission is politically motivated to produce outcomes to justify the introduction of anti-union laws. This is clear from the prejudiced and biased findings of the royal commission that reflect the ideological bent of the Abbott government and their hatred of unions.

In short, for those who go in for this kind of class war, it is as you were, and for the rest of us, nothing will ever change or get better. And the lawyers have made another killing on a pointless gravy train.

We are used to all this from our politicians. But this time they got a judge involved, a former judge, and one from our highest court. Except for a few desperates rusted on, as we now say, at either end, Australians are resigned to seeing government in the hands of unprincipled oafs like those who set up this sad flop. But they are not resigned to, and they should never be asked to accept, their judges being dragged into this kind of nasty, petty nonsense. On the whole, our judges are seen as being clean. Our judges, especially our superior court judges, have a high reputation, but that reputation will not withstand debasement by judges being used in this kind of politics.

I have tried to set out the reasons why I do not think that Mr Heydon was the right lawyer to conduct this inquiry, quite apart from his previous position as a High Court judge. He is too remote from the world and he has not had enough experience in resolving issues at first hand. These reasons were apparent to those advising the government, but they nevertheless went ahead, and Mr Heydon, perhaps from a misplaced sense of noblesse oblige, acceded to their request. It is difficult to avoid the inference that the government chose to go ahead with the appointment in spite of all the difficulties because they were set upon giving to their inquiry the gloss of the seal – the cachet, if you prefer – of the High Court of Australia – and there you have the whole bloody problem. We have drawn the courts, and our best one, into the political gutter.

A distinguished English judge was the late Lord Devlin. (He was also considered to be the Rolls Royce of trial judges, and it was said that he retired early because he was sick of the dry sodality of appellate work.) Lord Devlin once made a remark to the effect that English governments forever showed the very high regard that they and the English people had for their judges by their so frequent attempts to impose upon the judges to help them out of a political spot by giving their name and office to the conduct of a sensitive public inquiry*. This is why sensible and decent courts forbid that practice. That ban should extend to retired judges because the danger of communal reputational damage is just the same.

It would be tart to say that mistakes of professional judgment have been made here, and of a quite sinister kind, but is not the ordinary Australian, perhaps if you like ‘the relatively unwary member of the public’, not just a little ashamed at what is going on here? An Australian, as it happens a woman, has reached the highest form of electoral office that this nation can bestow; she is then made the subject of a sustained scheme by one of the world’s most powerful press head-kickers to blacken her name and run her out of office; she then has to face the indignity of being subjected to a public trial and humiliation at the instance of political opponents whose want of principle and character, and commitment to our basic political tenets, are becoming daily more apparent; and then their nominated inquisitor acquits her of the charges gainst her, but just gives her a backhander to go on with? Why would any sane Australian tell their children or grandchildren to do anything other than stay as far away from that cess-pit as possible? What can we say to these people, apart from what that now famous Boston attorney said to Senator McCarthy: ‘Have you no sense of decency, Sir, at long last?’

What did we Australians do to deserve this smutty little fiasco; more signally, what have we done to deserve these truly awful people who so truly believe that they are our ruling class?

*The actual words of Lord Devlin (The Judge, OUP, 1979, 9) were: ‘In our own country, the reputation of the judiciary for independence and impartiality is a national asset of such richness that one government after another tries to plunder it. This is a danger about which the judiciary itself has been too easy-going.’


There used to be an ad for a fly spray – Mortein, I think – that said that when you are on a good thing, stick to it.  It should be the first maxim of advocacy (and the writing of judgments) – if you have good point, stick to it, and do not spoil it with a dud.  This advice is ignored by novices, as we saw with Mr Crowe, and zealots.  People making a moral or political point can come within the second category.  The movie Pride is well intentioned and by and large well done, but in its zeal to promote tolerance about gays it loses aim and focus.  In the great miners’ strike of 1984, the British coal miners, especially in Wales, fought for survival against Margaret Thatcher and lost.  Her demonology is assumed and assured, but we see next to nothing of Arthur Scargill, the miners’ leader, because his ambition, crookedness, and disloyalty make Mrs T look like a saint.  A gay and lesbian action group decides to intervene to help other victims of the oppression by the unthinking masses, but intolerance on social issues is more entrenched among blue collar workers, especially in  a former Methodist bible belt.  We get the heart warming breaking down of barriers, and some fearful stereotypes on either side, but since we know that the miners lose , to what end?  Some parts are delivered with assurance and conviction, but for some there will be too many parts, and there is the danger that people on both sides of what is a black hats and white hats movie, with a female Judas, will become uncomfortably typed – how do the Welsh respond to their being different but counted among the good guys and bad guys.  The point, though, is worth making – and as I was reminded on the way home, this all took place more than thirty years ago, and a lot changes now in such a span of time.

Happy Christmas from Hamlet and the Wolf, and the Storm – Covert acts in Hamlet

Covert acts in Hamlet

The word ‘covert’ has a bad press thanks to the CIA. These people have to defend Americans and us against the forces of evil, against people who do not know much less accept our notions of rules of the game. The CIA operatives are left to work in darkness and deceit knowing that they just have to cop it sweet if they get caught – because we decent people cannot be seen to have got our hands dirty in our own defence. You might find some room for hypocrisy there.

Darkness and deceit fill Hamlet with murderous covert acts. Murder and revenge are everywhere, but always covert until the end. Even revenge is covert – until the end. There is obviously some room for hypocrisy here, too.

The deceit begins with the Danish equivalent of the PMO, the Prime Minister’s Office. After Claudius has poisoned his brother King Hamlet, he causes the news to be put out that the king was stung to death by a snake while taking a nap in his orchard. Well, we might nowadays read of a myocardial infarction, but when the ghost of the murdered man tells young Hamlet of the truth, his ‘prophetic soul’ had suspected something like this. The rest of Denmark has however been taken in by this ‘forged process.’

But the level of deceit in Denmark was such that young Hamlet does not trust the ghost. He wants independent evidence. He arranges for a doctored – ‘forged’ if you like – version of a play called The Mousetrap to be put on. He hopes to and does entrap the king by this device.

Hamlet is right into deceit. He feigns (or forges) madness as a kind of cover for his covert inquiries and actions. The king and queen are troubled by this apparent transformation in this highly strung university student. They engage two mates of Hamlet, Rosencrantz and Guildenstern, to maintain a covert watch on him. The queen assures them that the king will look after them as spies, but Hamlet is not deceived. He gives them a kind of shirt-front, but they just hang on, like barnacles.

When Hamlet puts on the mask of madness, he is engaging in a form of deceit that causes great and obvious pain to his mother, something that the ghost had forbad him to do point blank. Under cover of the same false madness, Hamlet coldly and cruelly repudiates Ophelia, the young woman he had pledged his love to ‘in honourable fashion’, even while her family were warning her off. This wounded young woman does not know that the madness or rejection are part of an act. She is driven mad and then dies in an apparent suicide. Ophelia is an innocent victim of all this darkness and deceit. Other innocent victims are not so easy to spot in this play.

Polonius, the father of Ophelia and her hypocritical and snaky brother Laertes, is a silly old courtier. He is heavily into surveillance in a land that Hamlet describes as a prison. He arranges with the king to eavesdrop on Hamlet while she is talking to the queen his mother. Gertrude is not told of this surveillance. So, when the old man makes a noise in the background, Gertrude cannot warn Hamlet that there is nothing to worry about. Hamlet runs him through, exulting in a chance to be a man of action, and who knows, he might have taken out the king?

When Claudius tries to explain to Laertes later why Hamlet was not prosecuted for this homicide, he is most unconvincing. If Hamlet had been found guilty of manslaughter, and you had been asked to put in a plea for him in extenuation, the word ‘remorse’ would hardly pass your lips. There was none. The young prince was as cold, cruel and superior to the dead father as he had been to the disintegrating daughter. ‘Thou wretched rash intruding fool, farewell……I’ll lug the guts into a neighbour room.’ It was as if he had shot a beater by mistake on a pheasant shoot, an unfortunate interruption to the better people’s sport.

Now, the king, who is an accomplished murderer just getting into his stride, realises that that dead body might be his. He sets about sending Hamlet to England where he hopes the English will honour his request to kill the anointed heir to the Danish throne – ‘Do it, England.’ Rosencrantz and Guildenstern may or may not have been parties to this murderous attempted coup d’etat, but their sometime friend outsmarts them again. (Let’s face it, these two have ‘losers’ written all over their unlovely faces.) Hamlet picks their pocket. He destroys their commission to England and he substitutes a forgery. The commission from the King of Denmark to England now is that Rosencrantz and Guildenstern are to be put to death forthwith. These poor creatures must have got a very nasty shock as they watched the perfidious English unfold the parchment and then proceed to shoot the messengers. But the conscience of young Hamlet, which is otherwise so sensitive, is not moved by these occasional murders.

Claudius and Laertes go one better with their plot to kill Hamlet. Laertes wants revenge for the death of his father and sister, but he is content to go along with Claudius in a covert scheme to murder Hamlet without inquiring of his co-conspirator what had caused the prior clemency of the king to evaporate – presumably it is because the people are now up in arms for Laertes against Claudius. Laertes will kill Hamlet as if by accident in a duel. To be sure, he poisons his weapon. Then to be trebly sure, Claudius will give Hamlet a poisoned drink.

You do have to wonder about the psychic efficacy of a secret anonymous revenge. And think of the overdrive in wait the PMO – the heir to the throne has accidentally killed the father of his girlfriend who has accidentally committed suicide, and then the brother and son of those two accidental victims has accidentally killed the man responsible.

Well, we know that the plan goes off the rails when the queen drinks the poison and Hamlet kills the king in hot blood for the death of his mother and his father.

But what for me is the grandfather of all these lies comes when Hamlet seeks to reconcile with Laertes. He tells Laertes that he Hamlet has done Laertes wrong, but then he says it was not he Hamlet that did the wrongs but his madness. This is a bare-faced lie, a lie upon a lie. It is a weak and cowardly lie. Nor are we surprised that Laertes is not moved. He says that he is satisfied in nature, ‘but in my terms of honour I stand aloof.’ Laertes is red hot for revenge for the death of his father and sister. In that heat, that we can understand, he descends to darkness and deceit. But his talk of being satisfied in nature, while not in honour is addressed to an unashamed liar who has committed himself to one pole-star in his life:

….Rightly to be great

Is not to stir without great argument,

But greatly to find quarrel in a straw

When honor’s at the stake. (4.4.53-56)

What a weasel word ‘honour’ is, and how right it was to use the word ‘aloof’ with it! And what murderous bullshit and pious claptrap from a spoiled prince do we have here? How many millions of people have died because the honor of a prince was at stake? And what place is there for any honour whatsoever among all these characters thrusting about in their own darkness and deceit?

The great A C Bradley published his famous lectures on Shakespearian Tragedy shortly after the death of Queen Victoria. He saw in Hamlet ‘a soul so pure and noble.’ Each of those three words now dies on our lips. Stalin and Hitler ravaged our faith in mankind. And we have given up the abracadabra or Open Sesame theory that says that you just have to find the right key to unlock the secret of a work of art. That childlike view, which used to be put about by psychoanalysts who should have known better, involves arrogance at our end, and downright bloody rudeness at the other. We don’t think that life or letters are so simple, and the people who have the best chance of staying sane are those who are happy to live with some mystery about them.

The prince who moves into the vacuum left by Hamlet and his uncle – and they did not leave much standing – was a man of action that Hamlet had a very rosy view of. Even in death this young man returned the compliment and said that Hamlet was ‘likely to have proved most royal.’ This was comity among Scandinavian royals, but do we agree?

We might now see that Hamlet had some key attributes, as the personnel consultants say, of a high-end CIA operative – a product of the noblesse oblige with a penchant for intellectual analysis and guesswork; a keen observer of the behaviour of others, and a taste for covert action in high affairs of state; a practised capacity for seamless dissimulation (if you must, a seasoned liar); a man who could handle himself in one-on-one armed combat to the death; a capacity coldly to drop someone very close to him if they got in the way of his mission; and, above all, and contrary to a very widely held view about this man, an operative who could override his conscience just like that if the stakes were high enough. Perhaps there was more to this young prince than first meets the eye.

The Water Diviner


Now you know. They do make films like this anymore. The Water Diviner is a film about an Australian farmer and water diviner (Russell Crowe) who loses three sons on Lone Pine and goes there to use his capacity to commune with the earth to recover their bodies. He does not return empty-handed, but that simple and uplifting tale has been expanded into a combination Beau Geste, The Man from Snowy River, Zorba the Greek, Kim, The Guns of Navarone, Gone with the Wind, Lawrence of Arabia, and Indiana Jones and the Last Crusade. It is also a cry-out-loud weepy. Mr Crowe is putting down a big marker – subtlety will not be the hallmark of his film direction. Well, not a lot in his history suggests shyness.

This is all OK for those who like this kind of thing in the sequence about the lost sons, although on at least one occasion the fearful exuberance comes mortally close to a failure of taste, but by the time that the hero gets to help Ataturk to found modern Turkey with the aid of a cricket bat, some might incline to the view that we have gone over the top once too often. And there is some bleak typing, of a miserable, venal Irish Catholic priest, of insufferably snooty Pom officers, of incorrigibly democratic Australians, of lustful and polygamous Turks, and of bloodthirsty, eye-rolling Greeks. The love interest is carried by a ferociously attractive young woman; whatever other attributes she might have are lost under lines of banality that the screen-play suffers too much from. I thought that the acting honours were taken by the guy playing the Turkish officer – he looked flawless to me from start to finish.

This is all I think what used to called derring-do, but the film has a curious premise – that the hero failed in not doing enough to stop his sons setting off for the slaughterhouse in the bizarre and un-Australian name of King and Country. This whole nation is set to embark on an orgy of celebration of that very sick notion in the centenary of the disaster at a time when it is deploying war machines under the odd name of the Royal Australian Air Force to kill Arabs in a sectarian war that extends to Turkey – and, we are told, the shores of Australia. But whatever else the sons of the water diviner got killed for, I do not think that it was in order that one hundred years on, their descendants might tug their forelocks to a knight or a dame or join in hostilities on the other side of the world on the ipse dixit of the patron du jour.

Folies Bergere


Whatever else you might say about the French, they have style. Folies Bergere is about as un-French a movie as you could get. It is a movie in search of a genre, domestic, quotidian, embarrassingly gauche, banal even, a teaser, and at times a teaser of the cruder sort. But it gets by because of Isabelle Huppert, who is the living embodiment of French style.

We knew that she would age well – I know that from the French photo gallery in my bathroom – but here she is at sixty-one, not so much radieuse or lumineuse in the grand French tradition, but an actress at peace with herself and with her own womanhood, and one who can still come on like the pretty girl that she is. It is a part of a remarkable assurance that can also show vulnerability that lights up what might otherwise have been a desultory sit-com of American tawdriness. For men as well as women of what the French call a certain age, this is a performance to savour.

She is married to a cattle farmer in the country. Life is fixed and less than thrilling. Their son is up to God knows what in a school for acrobats in Paris. (What good could come of that?) She is ripe for what in some quarters is called a fling, and your teeth might be put on edge by a frightful twerp who knows that the Net code word for randy granny is cougar. He mercifully passes, and a more urbane figure appears, and nature takes its course. My one regret is that she does not slap the face of the twerp. (I recall a movie where the serene Julie Christie snapped a young twerp to his senses.)

This is not a strong film, and it may hold little for those who do not yet know the fear of terminal irrelevance, but this woman – this actress – delivers in high French style, and the baby-boomers might find an affirmation of life that is a kind of comfort to them. I made my debut at the Melbourne Emporium on my way to the cinema, and I could relate to the estrangement of a country girl in a glitzy capital full of much younger foreigners.

And if you have one bit of theatre in your blood – and God help those who do not – you must see this film for just one scene. You will hardly see it coming, but when you do, you will gaze in wonderment. It will knock your socks off, and you will walk out better than you walked in. That last proposition comes with a cast iron guarantee.

And why did women give up on hats? Just look at the allure of the lead in the fur hat in the ad.



Fury is am American war film starring Brad Pitt. That is not a good intro for a lot of people, but this is a very, very strong film. What I mean by that, I will come back to.

The film deals with the action of the members of one American tank crew deep in Germany near the end of the Second World War. It starts in a preternatural darkness, and there is rarely much light. The German nation is defeated but fighting on almost as suicidally as the Japs did. The SS are stringing up civilians for not being warlike enough, and children, women, and the infirm are pressed into service. The casualties on both sides are horrific because too many of the Germans are committed to fight unto the death. The German nation was betrayed first by the Wehrmacht when it sold out to Hitler, and then by Hitler when he abandoned the people he had found to be unworthy of him to their enemies. The really fortunate ones just had to deal with the Americans and British; the others had to face the Russians, a peasant army fuelled on vodka and revenge, and on an altogether different plane of humanity.

As it is, the Americans and Germans in this movie have seen and done so much killing that any humanity that is left looks vestigial. Pitt and his crew have been together since the day after D-Day. There is hardly one iota of military discipline in sight, and the two commissioned officers we see are harried warriors just like the rest. The only bond is the comradeship of survival, and a trust in their leader who has kept them intact.

I cannot say whether this is how it was. I was not there. I do know of my own knowledge that some parts take some latitude on weaponry, and some might think the same with the drama. We do know that the American tanks were lighter and more combustible than the German, and the film does show us tanks as cavalry. It is a little hard to see how a town just taken by the US should come under heavy artillery fire, but this film is a poetic drama rather than an historical picture show. It is more like an opera on the snarling waste and cruelty of war and the thinness of the wafer between us and the molten lava beneath us. Its ending is Wagnerian, the full Gotterdammerung.

The film had its own dramatic logic for me – in the end, these men had nothing else but each other and an affinity with death. If you pick up this thread, it is moving in a way that runs very deep in the history of the drama of the West, and in its epics. It also accords with what US psychologists found causes men to keep going in death-threatening savagery. It is nothing other than loyalty to each other.

The story is largely seen from or around a young man – a fresh faced kid – who is assigned to the tank after only eight weeks in the army. It makes your skin crawl when you hear the kid say this. We know the Americans committed this kind of war crime on their own in Vietnam, but in Europe in 1945? The shocking initiation starts, and culminates with Norman being required to shoot a German taken in an American uniform. When the kid gets the hang of it, and machines Germans from the tank, he gets abused for not letting them burn to death – we see one such victim shoot himself. The young man in the part does it well, and I thought, with one possible exception, it avoided cloying.

Pitt avoids being too handsome for the part with a basin cut, and he is now over fifty. His private war involves his hiding his fear from his men. The rest of the crew are an ethnic motley from Catch 22, a mix of wanton depravity and pathetic piety. At least one of them would cause a whole town to lock up its daughters in the nation that gave us Kant, Goethe, and Beethoven. Although Berlin is almost in sight, and the end is both near and certain, it is the Americans who always face the odds in this movie.

The high point of the human drama comes with a scene involving Norman and Pitt and two German women, one quite young. It is a very tense scene. In the East they would have been pack-raped indefinitely, and there is a threat of this here. Just how far does the animalness of these men go? Put differently, is there anything left of the veneer of civilization?

And what about the other war crimes? Germans found in American uniform were lawfully shot as spies. SS officers were shot out of hand for the same reason that Hitler and Himmler would have been – the film expressly links them to the German civilians left hanging by the road. It is idle to talk about war crimes against people like those. But what about the ordinary German soldier who has been engaged in killing as many of your mates as possible in a war that is only going on because of the perfidy of Hitler to his own people? When he is out of ammunition, can he just hold up the white hanky, and expect to be put up until the rest of his mates have been killed? Who, after all, started it? The film puts this question acutely, and I wonder at the impertinence of those who are happy to stand in the shoes of God and give judgment – not least because none of them will have known what war like this was like.

I said that this movie is strong. If it gets you, it will do so with the force of an opera by Wagner, and the depth of a tragedy by Aeschylus. You just feel throughout the movie that you are being exposed to something elemental. It is as if you are being tested. It was strong enough to make me walk out into the daylight outside the Regent in Ballarat feeling different to when I walked in. This film is in my view a very substantial achievement. It is in its own way a war film for those who do not like war films, but it may be some time before I feel the need to see it again.

And, to be consistent, I say the same about Wagner’s Ring Cycle.

A disastrous opposition


The current Opposition in Canberra is not smiled upon. Its leader is lacklustre and not as impressive as at least one of those behind him. The party seems content just to say no to just about everything, and it has real trouble in formulating alternative policies. Even though the present government is neither trusted nor respected, the Opposition may have trouble getting enough votes to tip the government out, much less implement policies of its own if it ever gets round to formulating them.

If that picture sounds familiar, it is. We are adrift on a sea of back-biting mediocrity, and there is no end in sight.

In a democracy that is run on the basis of two main parties, the party in opposition has a job to do that is just as important as the job of the party in government. That proposition strikes me as being close to self-evident, but it is curious that it is not noticed, and, worse, not practised by those whose job it is to do so.

The three jobs or objectives of the Opposition are: to hold the party in government to its promises, and the proper discharge of government generally; to develop alternative policies that it can put forward to the electors as a better way to run the country; and, then, having developed those policies and persuaded the electors of their merits, try to win enough votes to secure enough seats to win government with the right and power to implement those policies.

You can see why people are disenchanted with the current Opposition, but the Opposition to the previous government, led by Mr Abbott, did none of those three things. They did not come even close to fulfilling one of their objectives.

The Opposition led by Mr Abbott did not adopt a reasoned approach to the endeavours by the government to implement its policies and fulfil its promises. That Opposition just said no, reflexively, and with an iron discipline enforced by personal staff that still gets a warm response from the cheer squad. They covered themselves in mantras and slogans – cut a tax and stop the boats. They thought that that was all that they had to do, and it was so easy! They gave up having to think, and they banned subordinates from even talking.

It is difficult to imagine a worse way for a party to conduct itself in opposition. They refused to deal with each case on its merits. We should have taken a lot more notice of this dangerous signal. They did not want to have to negotiate. It matters not if negotiation was beneath or beyond them – I suspect it was both. The only reason that Julia Gillard was Prime Minister and Mr Abbott was not was that she could and did negotiate to get the job while Mr Abbott could not and did not. Mr Abbott’s supporters forget that this disability of their man locked his side out for three years.

Negotiation is what politics are about, and too few people noticed that Mr Abbott had disqualified himself from being a good politician by his unwillingness or inability to engage in its most basic function. In one of his more fatuous outbursts before the election, Mr Abbott said that he would not negotiate with minor parties if he became PM. Too many people took too little notice of these danger signs – an inability to control his mouth so as not to make a fool of himself; a readiness to make promises which he must have known he could not keep; an ability to look forever as a hand-me-down from a previous era; and a readiness to embrace some simplistic notion that a moment’s mature consideration reveals to be straight bullshit.

Just saying no all the time without putting up a better idea is a total failure of the duty of an opposition party. It now haunts those who did it, because those on the other end can do the same. Here then is another strike gainst the system, another erosion of trust in a system that is abused all the time. We seem to see the same thing in the US, and the people in both countries are sick of watching politicians put their party before the nation. The system is very, very unwell.

The failure to put up new and better policies makes it a little hard to claim a ‘mandate’ whatever that means. The electors were told that the new government would abolish all taxes levied for the environment and would use our armed forces to stop unarmed refugees, but to the extent that they may be taken to have formulated a policy to deal with the real issues, they have produced something that for many Australians, including me, is at best embarrassing. Their attitude to the environment is an intellectual shambles; that on refugees is a moral surrender. In the result, we are now offside on the first with the US and China, and on the second, with the UN. These consequences can no longer just be laughed off by the press cheer squad.

Are there many Australians who have not been embarrassed by the conduct of these people? What about our Sea Scout answer to Baden Powell who stands up in front of our flag with a silly sign about ‘Operation Sovereign Borders’ and tells the Australian nation that Darth Vader has forbidden him to tell them where and when their chronically depressed sailors are fishing refugees from out of the water because these are ‘operational issues’? How could that wicked and reckless Tory Winston Churchill have got away with being so frank with the English people during a real war? Does anyone outside the demented claque of Andrew Bolt and Alan Jones take seriously anything said by this feverish minion of Hillsong?

The third failure of the Coalition is in part linked to the first two. The Coalition in real terms had to win the election; it could hardly have lost a contest that a drover’s dog could have won. But they could net get enough votes to be able to govern as they wanted or to implement what passed for their program. Rather, they and their opponents left the electorate so cold that they proceeded to vote in a gaggle of people that the incumbents cannot help looking down upon. Their embarrassment at what they have done is a kind of cold comfort to the electors, but it is not helping to restore any faith or trust in a palpably sick system.

And the presence of these fringe members means we will be looking government by coalition after the European model. And that means some things will have to change. You will not be able to have absolute inflexible slogans or mantras for the simple reason that you do not have the numbers to ram them through as they are. You will have to be able to give and take, and to negotiate. You will not get by looking down on people outside your own uncomely backyard, but you will have to accept that if these people are as objectionable as you think, your public thinks that they are not as objectionable as you are. Above all, you can no longer get by saying that although you may be on the nose, the other side is worse – in the new world there is no one other side, and the people at large now are revolted at a bunch of inbred whackers looking at each other in the mirror and arguing the difficult point of who is the most uncomely one of them all.

They are the three main grounds on which the Opposition led by Mr Abbott was such disaster for the country. Two others are now becoming painfully apparent. The coldly disciplined attack dog approach to opposition was run out of one office, and this is an impossible model for cabinet government; it led one state premier to say that Mr Abbott never made the transition from opposition to government, a refrain that is now being taken up in his own cheer squad. The final mistake that Mr Abbott made was a bad mistake of character. Although he could hardly lose, and the other side sacked the PM to stem their own bleeding, Mr Abbott’s lack of nerve led him to make promises that were as unnecessary as they were unkeepable. And then he cannot accept that he is breaking those promises.

With all those faults and failures, it is not surprising that we are now looking at a moral and intellectual train wreck. What is a little surprising is that more people did not see this coming. Indeed, large parts of the press, including all of the cheer squad, still say that Mr Abbott was a great Opposition leader. He is failing as a PM not in spite of his success in Opposition, but for precisely all the reasons that he was such a bad Opposition leader.

The worst part of it is that the flaws that got Mr Abbott into the mess that he is in will not go away. They are part of the man and they are there to stay. The key to the size of the problem was revealed in a story on the press on the weekend. Before his unhappy party, the PM defended the role of his office which he and the cheer squad thought did so well in opposition but which everyone thinks is a dead weight in government. He told his party that the person in charge of that office, who is of course not elected and is not part of the civil service, is ‘the fiercest political warrior I have ever worked with.’ The world view of Mr Abbott is all there. He thinks that the ideal leader of this nation is a warrior, who must be intensely political, and utterly fierce. The people of Australia are sick of all three of those attitudes, and they are rejecting them at the ballot box.

May I close with a prediction? I think Jacqui Lambie could be one of the very few members of this parliament who will be well regarded in different parts of the community. First, she has had a real job and knows how real people live – she is almost alone in that parliament in either capacity. Secondly, she speaks her mind. With time, the circumambient deceit will get to her, but people can enjoy some candour while they can. She even shows signs of standing for principles. Thirdly, she was not educated at Oxford or any other imperial proving ground for colonial ineptitude and irrelevance. Fourthly, she is the target of some quite hilarious snobbery from people who have nothing to be snobbish about – how on earth could anyone as unlovely and unloved as Christopher Pyne or Scott Morrison purport to look down on anyone? The same goes for the entire Canberra Press Gallery. Fifthly, she does have some sense on matters that count – what sane woman of her age would want to take up with a bloke who did not have a cracker but who did have an inadequate equipage? Sixthly, the Liberal Party and Labor Party deserted all principle and decency in unison on refugees. In voting against an immigration bill last week, this member said: ‘These kids have been sitting there for 15 months, and you want a pat on the back? You’ve got to be kidding yourselves.’ How often do you hear an MP stand up to the Establishment on a matter of principle in those terms?



After yet another unfortunate episode, Don Quixote lamented:

Here I am with my name in the history books, a famous man of arms, courteous in my conduct, respected by princes, sought after by damsels, and just when I was expecting palms, triumphs, and crowns, I find myself this morning, as a climax to it all, trodden under foot, battered and kicked by a herd of filthy animals.

We never lose that sense of wonder with Don Quixote. He was quite mad, but he tells us more about ourselves than people who are sane and sealed. The people of Spain treat him as a holy father, and that is not something that we get from the English and Shakespeare’s great character, Sir John Falstaff, the leering, lying, cowardly, and ultimately ridiculous drunk.

Verdi wrote his last opera about Falstaff. Opera is nothing if not Italian, and so is Verdi, so watching Verdi on Falstaff is like watching a French ballet of Don Quixote. The two great characters in the literature of the West are brought up for us on another artistic plane. By and large Don Quixote may represent a surer guide to our humanity and our sense of wonder, but the current AO Falstaff may cause you to reflect on this. It is a s good as night out at the theatre that you can get, and in the end – which might remind you of the end of Figaro or The Magic Flute – you might feel a sense of wonder at the uplifting magic of theatre and the music of an Italian genius and a gift from God to humanity.

Verdi’s Falstaff is the light version of The Merry Wives of Windsor rather than the more corrupt and tragic character of the histories, the real Falstaff, but the essential parts of the myth are there. This production is not far from commedia dell’arte – you might often be watching a ballet or panto – but the orchestration and choreography seemed to me to be spot on. The lead is one of those big parts that very few in the world can do at any one time, and Warwick Fyfe is one of them, vocally and theatre-wise. By the end, he has turned his character into a wondrous figment of the stage. The show is directed by Simon Phillips who knows about these things. They take some chances and they all come off. The last act is a bell-ringer and the finale would get standing ovation in other parts of the world.

Opera companies might be like footy or cricket clubs. They have their ups and downs. This is a production of complete and obvious assurance. I recalled the good times twenty or so years ago, when productions under Moffatt Oxenbould left the cast and audience suffused with benevolence.

Someone said that Shakespeare makes us proud to human – this show will leave you happy to be Australian. There are, I think, two shows left in Melbourne, and you should never forgive yourself in you do not catch one of them. And, which helps at this time of year, this show is nothing if not festive.

The End of an Australian Innings


We don’t know when death will come, but we do know that it will come, and that it will stick. A man brighter than me said that there is something permanent about death. Fear is different. Fear just comes and goes. It is a fact of life, not death. It is not of itself bad – you may live longer if you fear taipans in long grass – but we all have to come to grips with it.

For better or worse, fear is central to cricket and football the way that we play those games in this country. I knew fear in full measure in both as a kid, but it was always a lot harder in cricket. I got hit twice over the left eye – in the temple, a potential death zone before helmets – and the doctor said that the third strike could well be the last. Footy was okay. If you were like me – like most of us – you just made up the numbers, and you only got near the really rough stuff by something like accident. But in cricket you would be standing there alone – feeling ridiculous in short pants and pads – watching some bronzed Anzac or nuggetty thug drifting away up the hill before hurtling in to unleash a missile that could knock you out cold – as a mate did to me with the first ball of a match. You might be unmanned, maimed, or even worse, and every other bastard just stands there calmly watching.

I thought of this when watching Fox Sports give a two hour review of the two centuries that the late Phillip Hughes made in his second test for Australia. A century (one hundred runs) in a test match – at least one between us and South Africa – is a remarkable achievement. It is the pinnacle for every professional cricketer, and it is the dream of every Australian boy. It is celebrated in that song ‘I made a hundred in the back yard at mum’s.’ Why not? We all did that. Phillip Hughes did it in each innings of a test outside Australia, against the toughest team with the fiercest bowling attack in the world, in just his second test, after he had been cleaned up by Dale Steyn in the first over of the first innings in his first test. He was only twenty; he had not yet come into manhood’s estate, either by the old reckoning or by the facts of life.

If you have not stood in fear against a fast bowler who might make a real bloody mess of you, you will not understand just what Hughes did in Durban. The Springboks are like the All Blacks in football. They are bred and expected to win, and things can get very ugly if they are not winning. They had beaten us here, and they were looking very nasty after we won the first test there. Dale Steyn was on the verge of becoming the best fast bowler around. Morkel is very tall; he was then erratic, but from his height, the throat ball is vicious. Steyn runs straight at you with the distilled and pungent threat of a blue eyed Boer. He has a smile snared from Rasputin and Hitler. I cannot think of a higher compliment to a fast bowler. His first ball of the match was on a perfect line and length, and it dipped in late at about 140 k’s. It was aimed to crash into the top of the middle stump – if Hughes had not hit it. (And if he had missed it, God only knows how history may have unfolded.) But Hughes did hit it, and he went on to make a hundred – getting there with two consecutive sixes; and then in the second innings, he repeated the dose.

After a while, the South Africans decided to work this kid over, and go for the throat. They know what they are doing. At one time, the then Australian Captain, Ricky Ponting, was at the other end. The Punter is as hard and tough a competitor as you can get. (We do not get leadership from our politicians in this country, but we expect and demand it from our national sports leaders.) The Punter recalls that the other side could be ‘pretty threatening and they were going in hard with the ball and a bit of verbal.’ If I may say so, there is an element of understatement there. I cannot imagine any contest as intense and personal as this in any international sport, and the South Africans can be as brutal – that is the word, brutal – as us. The Punter went on. ‘I thought I’d better go down there and check how he was’ – well, after all, the little bugger was hardly any taller than the Punter, and he was only 20! – ‘but before I got there, he looked up and grinned at me. ‘I’m absolutely loving this’, he said.’

Now, I wonder if the Punter or someone else used some editorial discretion there – ‘absolutely’ sounds more BBC or even public school than Nambucca or Macksville – but it is a great story, and it sounds dead true, apart from the fact that we have the authority of our captain for it. Why wouldn’t the kid be enjoying himself? This is just what he was sent to us to do. As I recall, he had taken one of them for five fours in one over. (It was either Steyn or Morkel.)   It was just this feat of David Hookes against the English captain in the Centenary Test that still brings moisture to the eyes of old timers like me today. (I was about six k’s from the MCG when it happened, but I could hear the eruption of a nation, and I can still hear it.) In the first hundred there were 17 fours and two sixes. Hughes had not just taken on the best; he humiliated them. He got to 150 in the second innings with a six off Steyn with the new ball.

But the shot that caught my eye was not a shot at all. In the second innings, the South Africans concentrated on the body. Morkel found his rhythm and his venom. One ball reared up like a cobra at Hughes’ throat, but at north of 140 k’s. It flicked something and was taken by an exuberant keeper to one of those blood-curdling in your face appeals. The replay showed clearly that the ball had been deflected and caught, but it had come from the crest on the chest of the young Australian, and not from his gloves. The replays showed Hughes arching his back almost balletically to stay out of the way of a missile that had locked on to him – but he had dropped his hands cold and so removed them out of the risk zone, as if by instinct. All this happened in the fraction of a second. The South African commentators were sceptical of the less than text-book technique of their young nemesis, and they were almost audibly praying that it would undo him – as it would for a while – but even they were struck by the perfection of this response. The next ball was at about the same height, but a bit wider, and it was smacked to the fence as if nothing had happened. It was not cut, driven, or stroked – it was smacked, as if Mr Morkel had been caught in naughty act.

The South Africans are proud as a nation of their cricket, for good reason. I can imagine how outraged they were. If you believe that your side has an interest in inflicting lasting damage on the enemy, and the cricketers that we admire do, then this young man was bred to do just that. The shy boyish grin on the baby face just rubbed it in.

This was a combination of eye and grit in a young man against the toughest in the world. It was precisely their lack of anything like this that saw the English get thrashed five –nil against an attack that carried similar venom, and leave themselves exposed to suggestions that technique was not all that they were light on for.

So, Hughes’ heroics in Durban are the stuff that dreams are made of and talked about long after our insubstantial pageant has faded. But they did not take place at the MCG before 80,000 fans, and the dour schoolmasters prevailed on technique. It was as if we just drifted into the miasma of our ordinariness and our disdain or fear of the new. Australia is a land forever wrestling with its own emptiness.

I cannot help thinking that we handled this young champion badly, and that this is part of the tragedy that is now before us. If there was a flaw, it was not with Hughes, but with us. It is inconceivable that the Poms could produce a kid like that – and it is even more inconceivable that they would then keep dropping him while he put together 26 centuries before he got to 26. And we fumbled with Hughes during a period when our cricket management was at its desolate worst.

The film of his rawness and exuberance at Durban brought home to me the rawness of our loss. Phillip Hughes could have been – we will never know – coming into his flowering time, but however that may be, he had something that this country is crying out for – a true Australian hero. Tina Turner is wrong; we do need another hero. In the awful sea of mediocrity that beats around our public life, here was a young man from the bush who had a gift from God at our natural game, who loved the game as much as his country, and who could and did lift us up. Who knows? He might even have defied history, and revived an extinct species – a sportsman whom kids might decently look up to. Sweet heavens, we have reached the stage where only those as old as the babyboomers can remember the time when such people walked among us.

John Eales was a distinguished Australian captain of another international sport, rugby union. He is as decent and sensible a sportsman – and I do mean sportsman – as this country has seen. He was moved to say that it had been a week where perspective had truly been put in perspective. All sports share fear, and we all know the fear of failure. ‘Those who can’t handle the fears, any of them, fail in the most public of theatres.’ Eales commented on what we learn from dealing with sport and fear, and said that ‘Phillip Hughes and his gracious ways will never be forgotten, and they will continue to teach all of those who observed him from near and far.’ But what stood out was the advice that was given to Eales by his father before every game he played, from the cricket fields to the rugby paddocks, from the Under 8 Ashgrove Emus to the World Cup Finals for Australia: ‘Remember, John, it’s only a game, go out there and enjoy yourself.’ That is what we are missing, and it is just what we lost with Phillip Hughes. He actually played cricket as a game.

And although so permanent, death is so random. As a man most cruelly tormented by fate said ‘As flies to wanton boys are we to th’ gods, They kill us for their sport.’ The Australian journalist Nicole Jeffery movingly said this: ‘This one man’s life speaks to us in ways that we are all still struggling to comprehend. His death shreds our sense of justice in the world. He was one of ours, his story is our story.’ In saying this, Nicole was referring to the cosmic lottery of King Lear, and she was recalling those lovely words of comfort of John Donne that are so right for us just now:

Any man’s death diminishes me,

Because I am involved in mankind,

And therefore never send to know for whom the bell tolls;

It tolls for thee.

If Plato was right, and there is somewhere some ideal form for everything, then this young man would represent my Platonic form of an Australian cricketer. I am not sure if there is such a thing as an Australian character, but I am confident that our reaction to the death of Phillip Hughes is telling us a lot about that question. Perhaps this is one of those times that does not so much reveal our character as shape it.

As it happens, I rarely sense that I am on song with our songlines, but I feel it now, as I did when little Lionel Rose outlasted Fighting Harada with his left and brought us back home a world title from Tokyo; when our Kathy brought home the gold in Sydney and took a whole country off the hook; when we relieved the New York Yacht Club of some redundant old silverware, and when Hookesy took the Poms’ captain for five fours in one over on that glorious day on my own home ground – in my own bloody back yard, mate. Let’s face it, we will only ever see it here in sport.

Now you might see why the shocking death of this young cricketer caused older men in Australia like me to think back on their boyhood and then break down and cry.