Passing Bull 31 – The Loudest Twitterer

If there is something to be gained from the mess that is US politics, it is that ours may not look so bad after all.

About three quarters of a year of cripplingly expensive bullshit and division will eventually produce two candidates.  The parties have let the system get out of control.  They have committed themselves to having democratically selected candidates.  The English Labour Party did that too, and we know the results.  That is a bad case of preferring logic to experience.

The position with the Republicans would be comical, if it were not so serious – even to us down here.  Senator Cruz went, I think, to Princeton and Harvard, and is a member of the United States Senate.  He is running for President of the US representing the Republican Party.  With those cast-iron Establishment credentials, he claims to be against the Establishment.  The truth is that the Establishment is against him.  The Republicans hate him more than Democrats do.

Donald Trump has no policies at all.  He just shouts slogans and mantras and offers nostrums.  He is the ultimate Twitter age politician – full of loud, clipped bullshit of the required number of characters.  The last thing that you could describe Trump as is a Conservative politician.  He is in the populist mode and style of Mussolini.  There is an epic quality to his bullshit.

So, the Republican Party is looking at a possible choice between a radical ideologue it hates and a populist who is not a Conservative.  Perhaps it is time the Republicans ask themselves whether their brand of conservatism – that is minimal legislative intervention – is what a majority of the American people want in the year of Our Lord 2016.  Trump is willing to intervene everywhere, and there does not appear to be much appetite for the Tea Party minimalism of Cruz.  Perhaps also the party might drag itself out of the 19th century and have a platform, a leader, and some policies.

There are many nightmare possibilities for the rest of the world.  If Trump were to do the impossible and become the President, who would receive Frau Merkel?  In The Australian on Saturday, Emma-Kate Symons had a piece indicting the US press for not being critical enough of the family connection.

Trump is currently sporting a third wife.  He has got a daughter called Ivanka.  She is pregnant.  Trump says ‘if Ivanka wasn’t my daughter perhaps I might be dating her.’  Well, why not add incest to the holy cows available for slaughter?  The journalist criticises serious outlets such as Bloomberg and Yahoo for running puff pieces with headlines like ‘Ivanka with her bump stumps up for Papa Trump’.  The reason the press is so soft is that they are scared of Trump and of being locked out.

But if you want to know who might greet Frau Merkel, this is what Emma–Kate says:

The rise of Trump can be traced to multiple factors in the dysfunctional US political system.  It is among other things, the tale of an opportunistic, celebrity-seeking Alpha male paradoxically hanging off the stilettos of the clever model women around him: Number 1 campaigner, heiress, ex-model and Trump corporate senior executive Ivanka and his third wife, the Slovenian-born former catwalk habitué, Melania.

Yet, despite their tactical importance and role in legitimising Trump when it comes to women and immigrants, Trump’s leading ladies are apparently off-limits when it comes to fearless  scrutiny by US media.

Take this week’s cringeworthy exclusive interview at home with Melania Trump in her Fifth Avenue Manhattan ‘Versailles-style’ gilded penthouse by the supposedly liberal but in reality star-struck and access-obsessed MSNBC network show Morning Joe.

Rehearsed and primped like the seasoned reality TV star she is, jewellery designer and caviar face-cream vendor Madame Trump sat on one of her golden thrones, pursed her glossy lips, and waited for the easy questions.

That is the nightmare that would await the world’s most intelligent politician.  And Emma-Kate was being very kind not to mention the sons.


It is therefore a relief to find that the Americans can still do some things properly.  The film Spotlight is fine and persuasive for the reason that Trump is not.  It does not insult our intelligence.  The characters are underdone, and all the more interesting and persuasive for that.  Mark Ruffalo as the lead journalist and Stanley Tucci as an Armenian-born Attorney are terrific in a terrific film.  You can tell when a film is holding an audience, and this film did – especially at the end when the final caption announced that the Cardinal responsible had resigned – and was then given a plum post in Rome.  Still, I don’t suppose we can be too smug about that.  We now have to bribe our deadwood to get it out of the Parliament, and no amount of bribery or dynamite looks capable of shifting the worst case of all.

Poet of the Month: Philip Larkin

Mother, Summer, I

My mother, who hates thunderstorms,

Holds up each summer day and shakes

It out suspiciously, lest swarms

Of grape-dark clouds are lurking there;

But when the August weather breaks

And rains begin, and brittle frost

Sharpens the bird-abandoned air,

Her worried summer look is lost.


And I her son, though summer-born

And a summer-loving, nonetheless

Am easier when the leaves are gone;

Two often summer days appear

Emblems of perfect happiness

I can’t confront: I must await

A time less bold, less rich, less clear:

An autumn more appropriate.

The Most Exclusive Men’s Club in Melbourne


Some people think that the most exclusive men’s club in Melbourne is the Melbourne Club at 36 Collins Street.  They are wrong.  It is the Melbourne Fire Brigade.  I have been a member of both clubs, for more than ten years in each case, and I should know.

I got the pink slip from the MFB the other day after about 13 years as their disciplinary officer hearing charges under their act of Parliament.  I acted as the delegate of the CEO in the powers granted to him by that act to hear and determine disciplinary charges.  In a similar fashion, I had for about 18 years acted in the place of the taxing authorities of this state to hear and determine objections to assessments of tax under Acts of the Victorian Parliament.  Tribunal members do not have the protection of life tenure under the Act of Settlement, and this is the second time I have been reminded of that.

In a memoir I wrote about my professional life, that has been published on both Amazon and Apple under the name ‘Confessions of a Barrister’, I said:

That left the Fire Brigade.  Their statute left the CEO to hear disciplinary charges.  The CEO wanted to be involved in laying them, not hearing them.  No one had been successfully charged for years, if ever.  I advised him to delegate those powers.  His lawyers said that he could not.  I gave different advice, which the Brigade accepted.  They asked who should do it.  I asked a retired County Court judge.  He accepted, but then declined when the government said that it would affect his pension.  The Brigade asked me to do it, and I accepted.

There was a far bigger mess than I had inherited in tax cases.  There was a kind of institutional industrial disease.  No one ever got to trial.  They would just put up some nonsense from a tame doctor.  They had to learn that nothing short of a vigorously cross examined doctor would get an adjournment.  As for ‘stress’, if someone was too stressed to come to us, we would go to them – I could just imagine pairs of eyes peering through the venetians as a cavalcade of police cars and fire trucks rolled up a street in Broadmeadows. 

The other problem was the lawyers.  I was copping the bush lawyer component of the industrial bar and the criminal bar.  I wrote a paper called ‘Bush Lawyers’.  They have an answer to everything except the question.  The industrial people were just away with the birds talking juristic nonsense.  The criminal people were into game-playing and head-kicking, and both blow up in your face in a disciplinary tribunal.

But the worst problem was the class war, something from another time or another place.  Sharan Burrow, then the President of the ACTU, and a most impressive woman, gave evidence before me in one case.  I was very relieved when she said that this was the most poisonous industrial relationship she had seen. 

One case involved an allegation of ‘scabs’, the most lethal word in the industrial lexicon.  We got into the third day – two too many.  Counsel for the union was cross-examining the investigating officer about the investigation.  How was this relevant?  The act says there has to be an investigation – before someone was charged.  That is hardly surprising.  Then the horror of it struck me – if counsel could show there had been no real investigation, he would then submit that the charge had not been properly laid.  This was the sort of nonsense that was being spruiked.  Pure bullshit.

During a break in play, I ran into the union secretary.  I said I could give him a quote.  He asked what I meant.  I said that if his bloke went down, I would not fire him.  The matter was all over an hour or so later.  I understand there may be problems with quotes, but something had to be done to stop this effusion of public money.

I told the Brigade that I would talk to the Union.  I thought that they should get to meet someone who had such power over their members.  I thought that management might try to nobble me and that fairness required that the union have an equal opportunity to try to do the same.  I had the secretary and president home to dinner, in what became a very boozy affair.  The secretary had a very big public profile, but he wanted me to be inspected by Sharan Burrow and a big mover in the Labor Party. 

In the upshot, the union bought into the process and managing the problem, and I felt as comfortable in talking to them as to management about general issues before the tribunal – such as trying to reduce the role of lawyers, and trying to stop ‘lawyerising’.  I told the union secretary at the beginning that there were only two rules – no verbals, and no discussion of individual cases.  He has observed both of those rules. 

I was invited to the annual dinner dance of the union at the San Remo Ballroom in Carlton after the then CEO had been dropped off the list.  He then rang me while I was in the bath listening to Haydn’s Nelson Mass.  He asked me not to go.  I said that I had accepted and that I had arranged to take a former articled clerk.  This was Karen Knowles who was also a singer.  This did not improve the humour of the CEO.  I later wondered why the firies were asking Kas for her autograph but not me.  Since then I have got on very well with both sides, which is as it should be.

The relative peace did not mean that I was not appealed from as well as getting sued in the Federal Court, the Supreme Court, and some curious industrial outfit, but nothing much seemed to come from any of my beneficence to the bar.

We got through the backlog, and established sensible ways to get through the business.  One morning I actually had a case with no lawyer on either side, and I am sorry that there is not more of this.  From time to time I would hear mutterings that I was not being hard enough.  I will just mention one case. 

A fire truck on display at a charity day for kids dying of cancer rolled over on TV and there was embarrassment and anger at Brigade HQ.  They charged the man driving – who had surrendered the wheel to a mate – and the officer in charge – who was nowhere near the vehicle when it fell over.  I saw no case against him and I dismissed that charge at the close of the evidence of the Brigade.  I had to give a suspension to the man who should have been driving – his name was W.

During the hearing, I got them to take me for a ride on one of these vehicles with both counsel.  As we got going, we passed a handsome woman who had been in the tribunal room.  I was told that she was the wife of the officer who had been charged – and the mother of nine children!  When the hearing resumed, I asked counsel for the Brigade what penalty he would seek if the charges were proved.  Dismissal.  For both?  Yes.  I wondered how this would go down in the people’s daily – a fire brigade officer, with a stainless record after 20 years, and the father of nine children, had been fired for giving of his spare time to attend a charity for kids dying of cancer, for an accident that he had nothing to do with.  I also wondered how long it would be before the comrades returned to work.

The case of Mr W was hardly less interesting.  He had grown up with the guy that he gave the wheel to.  They had been garbos together.  They had both therefore had experience in driving large heavy vehicles.  But while W went from being garbo to firie, his mate went into business and became very successful and very rich.  He also became committed to charities.  He gave evidence before me, and he was very impressive. 

I met both these guys twice later.  One was at a football presentation that the union had invited me to.  (It was a VFL function; the comrades are not toffs.)  The secretary was late – as usual.  I was directed to a table.  The guy next to me asked if I knew who he was.  No, mate.  It was Mr W!  I cursed the secretary for being late, but Mr W and his mate (the charitable ex-garbo) and I got on very well. 

The second meeting was at the greatly favoured San Remo.  It was a packed house.  It was a living wake held in honour of Mr W before his expected death from cancer.  I told him that I was honoured to have been invited, and I meant it.  It was a very generous and decent gesture of both Mr W and his mate – and the union.

The pink slip arrived by email on a Friday afternoon.  Someone must have told the senders that that is the best time of the week to go shooting.  I replied that day asking who was taking my place, and a week or so later, I sent another letter to the CEO asking the questions set out at the end of this note.  The only reply I got was an attempt to gag me – except that they did say that they had ‘not made any decision as to a replacement but have instead decided to appoint a delegate on a case by case basis when the need arises to assist the organisation.’

It is curious that they have discontinued a process without deciding on a replacement – and without giving any reasons for their decision.  The inference may be open that they have done what was required of them by firing me and that they will worry about what to do with an act of our Parliament later – or just let it rot.  You might care to ask them what they had in mind.

To enter into the men’s club of the MFB is a far more unworldly act than entering into the Melbourne Club.  It is somewhere between Alice in Wonderland and One Flew over the Cuckoo’s Nest, although here there is a real issue about who constitutes ‘the Combine’ here.  When I started hearing these cases in 2003, I used to go back to my chambers and collar a colleague at random to ask them to assure me that it was not I who was mad.  It really was that unnerving – and, sadly, it stayed that way most of the time later.  People who have not been in it can never know what it is like.  People who have been in it can take a long time to get over it.  If you think I am joking, or laying it on too thick, you are wrong.

The members of this club enjoy privileges beyond the dreams of most Australians, and the club holds enough reserves of money to pay lawyers to defend those privileges and keep the men in the style of life to which they have become accustomed.  The UFU has been a major benefactor of the Victorian legal profession for generations.  It is ironic that the lawyers are then instructed to portray the members of this club as poor, silly people who are quite incapable of thinking for themselves – without prejudice to their God-given entitlement to pay rates that would not be possible outside the public sector.

Let me give you as an example of the unworldliness of it all some idea of what happened in the last case that I heard.

I had not been asked to hear a case for years.  Was discipline at the MFB so tight?  A highly ranked officer – that of Commander – was charged with having obscene material on his MFB computer.  There was no doubt that the material was on his computer, and after less than a minute looking at it, the average member of the community would have had no doubt that a lot of it was obscene, if not worse.  A lot of it was simply an offence against humanity.  I never heard anything resembling a defence on the merits.  There wasn’t one.  Even though the man’s job was on the line for this kind of offence, a properly presented plea would have disposed of the case in about an hour – and for the best kind of result that a person in the position of this accused could have sought.  At least, that is what would have happened in a sane court or tribunal.

Instead, the case went clean off the rails at the start.  During the interview process, the accused – I will call him Smith – was assisted by another commander who, as it turned out, had committed a similar offence some time back.  The commander assisting Smith told the charging officer that Smith was not a member of the union (the UFU) and since Smith had no other advice, he would assist Smith in the process.  This other commander apparently had a law degree.  Neither he nor Smith was inclined to concede that Smith had breached any relevant obligation.  The record of interview was a farce, and an embarrassment for all involved.  God only knows what the public would think if they found out the kind of nonsense put on by people of supposed rank.

Later Smith apologised in writing for having breached a written Policy of the MFB.  That of course did not mean that he was making any admission, much less that he would accept responsibility by pleading guilty.  As commonly happens in that tribunal, one party wanted to have his cake and to eat it.

When the case was called on, Smith did not appear.  This, to put it softly, is an unfortunate occurrence in hearing a disciplinary charge against a member of a uniformed force that is called on in emergencies.  There was no evidence as to why Smith was not there, but it was quite clear that he was aware of the time and place of the hearing.  We therefore proceeded in his absence.  Then I was told that Smith was not there because he had been on night shift.  It is about this time that you can feel the descent into Wonderland starting.  Then I was asked by counsel for the MFB to put the hearing over to the following day to allow Smith to appear.  I reluctantly agreed to that course.

The following day Smith was again not present in the William Cooper Justice Centre – although I had passed him serenely sunning himself on the steps of Owen Dixon Chambers on my way to court.  Instead of Smith, there was a letter from lawyers threatening Supreme Court proceedings and there was correspondence with the union talking about proceedings before the Fair Work Commission.  Although Smith was not there, he was represented by threats of legal action in at least one state or one federal jurisdiction or both.  In the absence of an injunction from a court, I wanted to proceed.  The matters were serious and there was simply no evidence that might in some way justify the absence of Smith.

I was then told by the MFB that it agreed to a further adjournment – and for some weeks.  Then the matter had to be put over for procedural reasons, some of which related to the work schedule of Smith.  By now the familiar Wonderland feeling was becoming oppressive and I was not getting any help from the Brigade.

The solicitors for Smith then said they would apply that I should step aside from hearing the case because of comments I had made about the seriousness of the case.  The application would be made on the basis of apprehended bias.  They also said that they had applied to the Fair Work Commission to ‘determine the proper forum for the determination of disciplinary proceedings brought against’ Smith.  I scheduled the hearing of the bias application for 8 AM on the footing that the hearing date would stand, but that the lawyers for Smith could go to the Supreme Court and seek an injunction against me if they lost their bias application.

When this application came on at 8 AM, Smith was again not there.  But this time he was represented by one of Her Majesty’s Counsel and a solicitor.  They were two of the nine lawyers in the court room that morning.  NINE.  For a matter that could and should have been disposed of in an hour in an office at the MFB – preferably with no lawyers involved at all.

The bias application was competently argued by both counsel in less than an hour, as I recall, and I gave an extensive ruling rejecting the application the next day.  (I had of course been handed folders of cases.)  So that you can understand how unreal all this forensic posturing was, I will set out some extracts from that decision.

The charges allege that the material is offensive, sexist, racist and obscene.  One set of photos shows a man whose genitals have been removed and stuffed in his mouth.  The email comment is ‘Ouch!’  One shows a woman apparently trying to effect vaginal penetration with a form of fire extinguisher.  One shows the rescue of a man whose car had gone down a well in, I think Saudi Arabia, and as I recall the conclusion is to the effect ‘That is why Allah gave them fucking camels.’  One asks: ‘What is the race that stops a nation.’ ‘Aboriginal.’  No one would want to spend time on this material, but it is difficult to think of any interest group or minority in this country that would not be seriously affronted, and possibly provoked.

So, the evidence raises serious issues about the conduct of an officer of the Brigade.  Then there is the significance of the rank of Mr [Smith].  In a case heard three years ago, I said of another commander:

A commander is a very high ranking officer in the MFB.  There are only two between him and the top.  This one told me that he had been paid more than twice the average wage and twice what this nation pays its secondary teachers in government schools.  He finally accepted that the average taxpayer would be appalled to hear that someone in his position had collected $1300 for not turning up – and was sitting on the money.  He had not considered refunding the money…

If a real question arises as to the conduct of someone in a position of trust, that person should say candidly what happened.  If you want to put that as a legal proposition, the person trusted must respond in good faith.

Commander X did not do this.  He behaved as if he saw the investigation as a kind of game, and as if his integrity were just a kind of bargaining chip.  In his reaction to investigators, and in his evidence here, Commander X demeaned his office and rank and risked damage to the standing of the Brigade.

… any member of the MFB who prevaricates or plays games with investigators or in here can expect to be dealt with very firmly.  If the initial conduct of this commander was bad, his response was worse.  It suggests what might be called an attitude problem.


This question of attitude is the most troubling.  These people work for terms and conditions beyond the dreams of most Australians, let alone people elsewhere.  This man gets paid an amount beyond the comprehension of a meat-worker at the back of Kyneton, let alone a Sudanese migrant newly come to Melton.  But this commander looks unable to accept the responsibilities that come with this high rank and great remuneration.  The traffic looks one way.  It is as if firefighters like this commander have been seduced by their own success.

A commander is therefore a person of high rank.  The higher the rank, the higher is the sense of duty expected and required of the person on whom the rank is conferred.  That person stands in a position of trust and confidence to their employer.  Any employee is legally obliged to do his or her job loyally and honestly.  That means that they cannot use company property for private purposes, unless that use might fairly be characterized as incidental, or for improper purposes. 

This matter boils down to a simple issue of trust.  In the light of the evidence of what was on the computer, and the response of Mr [Smith] to the charges he now faces, can he be trusted to discharge the duties owed by him to the Brigade as a commander? 

Later, I referred to a memorandum dated 17 September 2003 that I sent to the Brigade and the union reflecting on the first six months of a jurisdiction that had fallen into disuse.  It contained some shockingly bad prophecies:

‘The procedure had not been working properly for some time.  It is not surprising that there were some problems in getting it cranked up.  People on both sides had to come to grips with a new kind of procedure.  So did the Tribunal.  The union wanted to test some questions in the AIRC and the Federal Court.  Most of these issues have now been ironed out.  In the past, disciplinary processes have stalled when ‘industrial’ issues led to an application to the AIRC or the Federal Court.  It is most unlikely this will ever happen again.’

So much for hope.  And then this:

‘There is a recurring problem of legalism that I have referred to in a number of contexts.  These matters should be dealt with as far as possible as issues between members of the Fire Brigade and not between lawyers.  There has been too great a tendency – at times on both sides – to leave matters to the lawyers.  Bush lawyers are to be discouraged whether they are qualified as lawyers or not, and reliance on technicalities is not encouraged either.  Because of its history, our industrial law has been beset by legalism and technicality, but there is no need to import these factors into disciplinary proceedings.  This message, I think, is getting through, but it is slow.’

And this:

‘A number of the disciplinary proceedings arose out of a context that could be characterized as industrial.  In truth, every disciplinary proceeding can be so characterised if it arises out of something done by members in the course of their duties and they are subject to industrial laws and industrial agreements.  It is now accepted that the fact that a context may in some way be said to be industrial, or an industrial dispute, means nothing for the competency of this Tribunal, which is a disciplinary tribunal, to deal with the matter, or to the nature of the case as a whole.  We can I think forget the industrial mantra.

Well, we now appear to have undergone a generational regression, but I set out those remarks so that people outside will understand the sense of déjà vu that those running the Brigade must undergo when the statutory process has to be cranked up again after a period of inaction.  These problems were adverted to in Measure for Measure, but that happy ending looks a long way back now. 

Perhaps I might make a further reference to the obvious need for discipline in a uniformed force that may be called upon to respond to a terrorist attack.  I also refer to the obvious need for the Victorian statute to give the CEO the power and duty to enforce discipline in his Brigade.  Until yesterday, I had thought that it was axiomatic that only the Victorian parliament could alter that dispensation.

‘I have referred to what the principal Act says under the heading ‘Discipline’.  This case is being dealt with under other provisions of the same law.  We are considering disciplinary charges. In the operation of an organisation like the Brigade, the maintenance of discipline will ordinarily be seen as vital to the maintenance of its capacity and readiness to carry out its functions relating to fires and emergencies.  It is difficult to envisage a fire brigade where this is not the case other than a fire brigade run by the Marx Brothers.

It would simply not make sense to talk of an undisciplined readiness for a fire or emergency.  It might make sense to talk of an undisciplined response, but that is the last thing that the Brigade or the people of Victoria would want.  Terrorists prey on unreadiness and thrive on indiscipline.

It is therefore essential that the procedures dealing with discipline work promptly and effectively, and that they be seen to work promptly and effectively.  This is very important.  If the Brigade cannot run its own disciplinary procedures properly, how can it be expected to cope with an emergency?

By the disciplinary procedures of the Act, the Victorian Parliament has given the CEO, and no‑one else except his delegate, the duty to enforce the responsibilities the Parliament has put on firefighters.  Since the process derives from the parliament, it can only be changed by the parliament.  It follows in my view that the determination of discipline charges under the principal Act should, at least as a general rule, only be deferred for compelling reasons founded on convincing evidence.  I would expect each party to be equally interested in obtaining a determination of issues with all due expedition.  However that may be, the people of Victoria are in my view entitled to no less. 

That is the background to the present application.  I apologise for its length, but I do not want anyone reading this to have any misapprehension about what is at stake in this proceeding.

I then made some comments about the differences between the Fair Work Commission and the Victorian statutory tribunal.

Because I am not an industrial lawyer, I know very little about the Fair Work Commission, just as they know very little about me.  This tribunal is of the state; that is of the Commonwealth.  They occupy different worlds, in my opinion, as I have endeavoured to show in my remarks above about the irrelevance of the ‘industrial’ mantra.  The Commonwealth body focuses on the rights of employees, and the duties of employers.  The state tribunal focuses on the duties of employees and the corresponding rights of the employer.  One looks at obligations founded primarily in contract and regulated by statute; the other looks at obligations at common law attracted by statute.  One is concerned with regulating employment at large and achieving industrial peace; the other is concerned with providing an essential service through a uniformed force. 

Above all, the Fair Work Commission seeks to arrive at agreements and settlements, and they encourage off the record discussions for deals.  This tribunal is here to make findings of fact and decisions of law to maintain discipline not peace.  To the contrary, our act envisages that the CEO will make a binding determination to resolve issues relating to discipline.  That is why I said in my memorandum that you cannot in this tribunal have a ‘settlement’ as such and that the only way you can achieve a ‘satisfactory resolution’ of the issues raised by a charge under the act is for the statutory officer to hear them and determine them as expeditiously as possible.  All this has been dealt with here before.  The differences between the state and federal bodies, with all respect to those who contend the contrary, seem to me to be both inevitable and irreconcilable.

In short, industrial peace and the role of a uniformed force protecting public safety are very different things.  That is why I say that the two tribunals are in different worlds – different universes.  It would in my view make as much sense to ask me to sit on the Fair Work Commission as it would to ask one of its members to sit here.  Neither of us would know what to do. 

As a result of what I am now told by Mr Grace, that opinion of mine may need some correction.  At an appropriate time therefore, we need to consider the consequences of the overlap, to use a neutral term, between the two bodies, and the impact of that overlap on the due administration of justice under an act of the Parliament of the State of Victoria.  I cannot help thinking that some industrial lawyers are prone to forget that the public has rights too.  (Some see a similar tendency in some tax lawyers.)

Later I said:

Without wishing to harp on the point, it is a little difficult to envisage the Fair Work Commission performing those functions.  What if a firefighter belts an officer, or vice versa – can the culprit avoid being dealt with by the CEO under the act by invoking the powers of the Fair Work Commission?  Who decides what cases the CEO can take?  I was originally appointed as the delegate by a CEO who said that it was more important that he was ensuring that charges were in fact laid than that he personally should hear them.  I can now better appreciate his prescience.

At the end of the decision, I said:

Only God knows what the hypothetical observer might think if told what I have now been told.  The tribunal got cranky with Mr [Smith] for not being there on day one, but Mr [Smith] was apparently under the impression that his federal application had sterilized the proceedings brought by the Brigade.  Then on the second morning, the tribunal member breezes past Mr [Smith] standing on the steps of Owen Dixon Chambers and thinks that he is looking remarkably serene for a man who has just a sabre rattled before him, but Lo!, Mr [Smith] was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned.  So the tribunal member gets even crankier with Mr Smith, and this time with the Brigade also.  And all because wires got crossed.  It does not bear thinking of how the man on the Storm terraces would respond to this sad tale.  It would not be printable here.  If he were told of the costs and the lawyers involved, then, in NRL terms, things could get really ugly.

I have indicated that if I reached the decision that I have now reached, and Mr [Smith] wanted to challenge it in the Supreme Court, then I would expect to proceed with the hearing on Wednesday 13 May unless I was directed otherwise by that Court.  It hardly becomes me to invite such a challenge, but it would subject a struggling and beleaguered statutory process to the cauterizing glare of public scrutiny by a superior court, and, if I may be forgiven the phrase, that may be just what the doctor ordered.

It will I think be clear to informed observers that this tribunal, and perhaps this Brigade, has seen better days.  This is, I think, the first case for about three years and just the second case in five years.  The sound and fury that now meets this rejuvenation of the process bears a sadly eerie resemblance to that which greeted the rejuvenation about twelve years ago.  Even some of the faces remain the same.  I make no comment on previous administrations, but it is clear to me that the present CEO and his staff are determined to fulfil their obligations under the statute, and to make this disciplinary process work.  I am equally determined to do all on my part to the same end, and I would hope that anyone with any interest in the Brigade has the same objective. 

Because the issues of jurisdiction between state and federal bodies was important, I wrote to both Attorneys-General setting out what I thought were the major questions.  Neither gave a substantive answer.  It is frankly worrying when Attorneys-General decline to deal with issues in the administration of justice – which were what I was facing.

Well, Mr Smith did not go to the Supreme Court, and he abandoned his claim before the Fair Work Commission.  He was dealt with under the Victorian law that he should have been dealt with under.  But he and those behind him – even though he was not a member of the union at the time of the offences – have got their way.  I was told other charges were in the pipeline, but it now appears that no more charges will be laid under that Victorian statute.

Does this mean that the Victorian statute has been dispensed with as if by the dispensing power of a Stuart king, and that the people of Victoria will have to rely on the Fair Work Commission to protect them and the discipline in one of their emergency services?   Have we seen a kind of casual hijack?

Irrespective of the answer to that question, what was the role of the government in all these events?  How is a member of a statutory tribunal expected to react when told by one of Her Majesty’s Counsel that the accused man he passed on the way to court ‘was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned’?   What role did that Minister have in this phase of the administration of justice?  How and when did ministers of the Crown in this state get the right to dictate or forecast the outcome of legal proceedings?

It is curious, is it not?  Over about thirteen years standing in for the CEO, I never see or hear from any member of the Board, and I meet some CEO’s occasionally, and some not at all, but as soon as the Chief of Staff of the Minister gets involved, I am abolished.  Pop goes the weasel!  Those who think that Spring Street or Treasury Place are places for eunuchs may have to think again.  Whether that kind of intervention by government in the administration of justice is appropriate is altogether a different question.  As it happens, it is a question that was agitated in the fall of the first Labour government in England as a result of the Campbell Case.

There you have a cameo if you like of the games that people can play with other people’s money.  You are not allowed to do that in the Melbourne Club but it happens all the time in the Fire Brigade.  Sir Daryl Dawson, formerly of the High Court, told me that it was like this back in the ‘60’s when he was at the bar doing a lot of work in MFB cases.  God only knows the truckloads of money that the lawyers have carted home from the MFB.  (They get nothing out of the Melbourne Club, whose members I suspect may not be as well off as the members of the MFB.)

Before I go back to Mr Smith, let me refer to three comments in the tribunal on why so-called ‘industrial’ issues have no place in a disciplinary tribunal.

In the absence of some formal statement on behalf of the defendants and what their defence was, I inferred that to the extent to which counsel for the defendants was seeking to lead evidence about these matters as being relevant to the charges, and he did insist they were relevant to the charges, it was with a view to asserting that the level of their culpability should be reduced to nil because of the culpability of the MFB in some respects. In my view a case mounted  on  that  basis  had  one  of  the  four  following prospects of success nil, nix, nought and nothing. As I said at the time, I thought I had an obligation to save the taxpayers the expense of entertaining these mini-inquests. In the end I thought it may be just as well to go along with it, but I wish to make it clear that in the future if I rule on relevance in that way, I will much more strictly enforce the exclusion of material that in my opinion is not relevant. I might say that counsel for the defendant did not refer to any of these issues in closing submissions or the plea. Can I say again that this tribunal is a disciplinary tribunal, not an industrial tribunal, and attempts to send its process off the rails will be dealt with more firmly in the future? Industrial issues have no place here.

Then there is the obvious problem of a conflict of interests if others want to use the accused as a vehicle to pursue some ‘industrial’ agenda.

One conflict of interest has been  detected in this case. Someone wishing to promote a policy of obstruction or delay may be acting against the interests of an individual defendant who would otherwise be advised to co-operate with a view to keeping any penalty down. Doubtless the lawyers will be astute to detect this issue for the future. It is always unsettling to see someone hit the fence because of a problem in our system and they happen every day -but this nearly happened to Mr. B in this case. It is ironic that those involved in ceasing to represent Mr. B were saying he would certainly get sacked here.

Then there is the class war.

In the course of the hearing I heard a degree of evidence – again with misgivings about its relevance to me about the extent of the industrial problems facing the Brigade, and the history of scabs in the Brigade. Since I have heard all this evidence, I am going to say something about it. It was not good to listen to. The secretary of the union accepted that there had been a class war going on for ten years. He said that the scabs in the 1950s carried the brand to their graves and so will the present lot.

Sharan Burrow does of course have the experience and standing to see this problem in its context. You could not but be impressed by her conviction and her concern. She said that the relationship between the MFB and the UFU is dysfunctional. When I asked her what she meant by that, she said that there were elements of hatred that she had rarely seen – the word used was hate – although she thought that the contact was better at the operational level.

It is not surprising that things are so bad if as a result of a class war people carry brands to their grave. They do not go gently into that good night – the innocents, as they see themselves on each side, will just rage, rage and rage against the dying of the light.  Both the MFB and the UFU will no doubt reflect carefully on the assessment of the ACTU President: she is uniquely placed to make the diagnosis. In my own observation, the hate is not so much generational as tribal, and I have seen the faces of men on either side cloud over with puzzlement, anger or despair when confronted with it.

But I was repeatedly assured that none of this had any impact on the performance of the Brigade of its essential functions. That is a proposition which, despite its august proponents, defies belief.  

All of those observations were made in a memorandum made in 2003 after the backlog was cleared.  The hostility – the hate – has since got worse in the succeeding thirteen years.  That hostility is now both addictive and compulsive.

The trainwreck of litigation involving Commander ‘Smith’ must have cost hundreds of thousands of dollars.  Since union dues come out of wages funded by the taxpayer, you and I get to pick up the tab at both ends.  And all this was in a case that could have been dealt with by two lawyers before the tribunal in a morning – and for a man who was not a member of the union when he committed the offences.  Instead we got the whole disaster – folders of documents, and trolleys to ferry them, and lengthy written submission and hours of expensive submissions and hearings.  About a dead man with his genitals in his mouth.  This must surely trump all previous triumphs of the IR Club.

So why was there all the fuss over the first case under the statute for years?  It was all part of the class war that I have described in a number of cases.  It was a repeat of what happened when I first started in 2003.  The men just refuse to accept the law.  I have little doubt that that is also the reason that I have been fired.  All that money was spent to bring pressure on the MFB to drop the statutory process and those spending the money and those supporting them elsewhere have got what they wanted.  It cost a fortune, but it was worth it.  You will recall that the express reason for all the delay and agitation was the suggestion that the case should have been dealt with by the Fair Work Commission.

If there are to be any sanctions, they will presumably come from the Fair Work Commission.  For the reasons I have given, that suggestion is worse than absurd.  It is, frankly, revolting.  If you ask who is running the MFB now, the answer appears to be a combination of the Chief of Staff of the Minister, the union, the Fair Work Commission, and a floating panel of about forty or so lawyers – in whatever configuration you choose.  Why not just abolish the office of the CEO and the Board – if it exists?  Well, I suppose that if the State of Victoria is now run by Ministerial aides and union representatives, we might be grateful that one of those offices is elective.  But what is incontrovertible is that backroom deals are poisonous in this set-up – what the MFB needs more than anything is a ruthlessly independent investigation into its darkest secrets conducted on a regular basis.

This men’s club, and the class war that drives it, are sad and corrosive throwbacks to the ‘50’s and the Split.  I have never seen a closed shop like it.  From time to time, I felt like I had been parachuted on to Mars.  I cannot tell you how relieved I was when Sharan Burrow said thatthis was the most poisonous industrial relationship she had seen’.  Count the CEO’s and CFO’s in my time against the African tenure of office on the other side of the war, and ask why the turnover is all on one side.

The class war is related to other failures.  I said that the MFB is an exclusive men’s club.  ‘Exclusive’ is hardly strong enough.  When I go from the bush to Melbourne I am struck, and happily so, by the number of people of Asian or African origin around me.  Not in the MFB.  Nor any Aboriginals.  I have not seen any of them.  God knows what would happen if a gay guy came out in there.  Men sleep together.

And then there is their attitude to women.  That is not just 1950’s.  It is antediluvian – or worse – I doubt whether even Noah was so hostile to women as these men are.  Psychiatrists or others will have their opinions on the views of these men on women.  You get tired of listening to tales of divorce and alcoholism.  They are traps for all of us.  A doctor gave evidence that men in emergency services are good haters.  Whatever the reason, there are far more women in combat roles as airforce pilots in the air forces of rigid if not backward Muslim nations like Pakistan and Saudi Arabia than there are in Melbourne’s Fire Brigade.  That is remarkable is it not?

I have been there only part-time for about 13 years, and for the last five or so I have hardly seen much because of a lock-out imposed from below, but I have seen enough face to face to feel the hate.  I have also been involved with organisations in the private sector making real progress on the position of women.  I have also raised two daughters and seen at first-hand the evil that this kind of closed mind and closed shop can produce.  The standing of women in the Melbourne Fire Brigade is a national disgrace in a publicly owned utility.

There is a simple reason for getting women up to say 50% of the MFB – apart from justice and decency.  That is that women will add some sense and reality to an outfit that has lost both, and, most importantly, women will help to get rid of that brutal blokey bullshit where the weasel word ‘mate’ denies all courtesy and decency.  If the current regime of the union can achieve parity for women in the MFB, even by opposing it, they will be well remembered.  It does look to me to be the last chance for sanity for this outfit.

One of the reasons for the intense devotion of these men to the class war and their hostility to women is that they have so much down time.  Anyone who has run a business knows that things get dirty when people do not have enough to do.  That is the case here.  How much time do they spend fighting fires or doing something useful?  The relaxed conditions of work then lead to second jobs and other engagements outside what should be their only work.

That, then, brings me to the Enterprise Bargain Agreements.  Whatever good they may have done elsewhere, they have been a disaster here.  You should get hold of one.  Five times longer than the Constitution and ten times as hard to follow.  The management time spent on these would support a battalion in Iraq.  The EBA’s have produced three evils.

All the benefits go one way, and the result is a form of manipulation, to use a polite word, to encourage a higher return to the firefighter – and a higher drain on the taxpayer.  Anyone in that outfit who suggested that they should try to contain outgoings would be branded as mad – or worse.

Then, the baroque sculpture of these edifices produces a total loss of initiative, and a kind of mindlessness and subservience to regulations that makes Orwell’s 1984 look as out of date as it is.  It is hard to think of anything that could be so demoralizing.  It is like a nanny state in Fantasyland driven from below.  This could not happen in the private sector – no business could afford it; it would just collapse.  I repeat – this could not happen outside the public sector.  But this outfit staggers on because the taxpayer is there for the plucking.

You get this nit-picking, bush-lawyering nonsense.  In a case as simple as that of Smith, you get referred to policies and guidelines and reams of material from the bureaucracy.  One of these items of red tape uses the word ‘appropriate.’  So, obviously, counsel asks the accused whether his employer gave him any instruction on what ‘appropriate’ might mean.  This is to a commander who has on his MFB computer images of a man with his genitals cut off and stuffed in his mouth and cartoons grossly offensive to followers of Islam.  I can recall being told one man had not been able to read an MFB policy because he had not been trained how to access the Internet.  You are now at the main entrance to Bedlam.  Somewhere between a racket, a riot, and a farce.  How do you, the one who is funding it, feel?

Finally, the EBA is the Trojan horse by which the management of the MFB gets handed over to the Chief of Staff of the Minister, the Fair Work Commission, and a busload of lawyers.  It was the means for blowing up the Smith case.  There are flow charts to show what so-called management has to do before it can do anything – such as charge someone under an act.  They are impossibly – laughably – convoluted.  They lead to a dispute.  Bonzer – off to the Fair Work Commission and the Chief of Staff and Spring Street.  And there goes an act of the Victorian Parliament.

What is the result?  You get trainwrecks like this case.  Or the commander who claimed and got paid $1300 for a shift that he did not do.  That is called theft.  But he turned up to the tribunal confident that the matter would be dealt with sensibly because he had once been a charging officer.  It was quite evident that this man had no idea of why his actions were wrong.  He seemed to think that he had done enough in the past to get let off for this.  The MFB had not sought dismissal, but after seeing him in the witness box, it accepted his resignation.  He still had not repaid the money.  The MFB had certainly not sued him for it.

Then there was the member who was charged with theft from the MFB.  The criminal case dragged on for years.  The accused was on leave – on full pay – for years.  YEARS.  When the Brigade finally got the nerve to invoke its own act of Parliament, the man’s counsel asked for an adjournment – because he had had not had time to get instructions!  There was nothing like a defence ever suggested, but the case went over two or three days.  I was told that the accused was too ‘stressed’ to attend.  I offered to go to him.  Then he was seen downstairs outside the court building, palely loitering with a mobile phone.

And that is before we get to the CFA whose members do it for nothing – and some of whom get killed.  God help us if a member of the MFB ever gets killed on duty – and God help those of us in the bush if the class war ever gets to infect the CFA.  There should be a close analysis of the rewards paid to firefighters compared to those paid to say schoolteachers or police and of the price paid and the qualifications needed by those on both sides.  Are firefighters better paid, less stressed, and less qualified than schoolteachers?  Do they work as hard?

People who are interested in this kind of folly should ask for copies of all of the decisions and memoranda of the statutory tribunal.  You may well be met with a tsunami of bullshit, bluster, obfuscation, special pleading, and personal abuse while panels of lawyers are consulted – at your expense.  Good luck.  I have had enough for the moment.  People in both bunkers have a lifeblood that can only thrive on conflict that murders thought.  It gets them all in the end.

I now understand what people mean when they say that economies like Greece, Italy, or Spain need ‘structural reform’ to get rid of closed shops that resemble medieval guilds.  It is not just the taxpayers who get clobbered in this class war.  You will not find many at HQ who do not look shell shocked – just look at the turnover.  I have spent time consoling victims.  And I fear that firefighters are being robbed of their own dignity or sense of worth.  That I think is a real shame.

And then we have to ask whether the most exclusive men’s club in Australia is now in truth run by the Marx Brothers.  The fact that the response of the MFB has been to seek to sweep everything under the rug merely shows how vital it is in the public interest that the enforcement of discipline in the MFB not be buried behind the closed doors of an IR Club closet.

For thirteen years a statutory tribunal inquired into the affairs of Melbourne’s Fire Brigade.  That tribunal gave reasoned decisions.  Those decisions show serious problems with morale and discipline in the MFB.  The MFB does not want people to read those decisions.  Why not?

People in Victoria may have at least three questions.  What problems of the MFB do those decisions reveal?  Why were not taxpayers told of these problems before?  What has been done to fix them?

When they get the answers to those questions, people in Victoria will be better placed to know why their statutory tribunal was strangled and then terminated.

And then they may get to what may be the ultimate question.  What is it about this outfit that makes these very average Australians so untouchable?  Why has neither political party been able to bring to this outfit either sanity or decency?


Dear Jim,

I don’t appear to have received a reply to my question of who is taking over.  You will recall that no reasons were given for the decision referred to – which some might think unusual.

I am going to write a memoir on my time at the MFB over and above those which you have already seen.  I am not sure whether to do it as an essay or a book.  One mode would be simply to refer people to the decisions of and memoranda from the Tribunal.

I set out below some of the issues on which I invite your comment.

  1. Why was the statutory process so little used?
  2. In particular, why has it only been used twice in the last five years?
  3. What has been the effect of the hostility between firefighters and management – between the union and the Brigade – on the use of the statutory procedure?
  4. Do you agree that the style and technique and tactics of industrial lawyers have been unsuitable for use in a statutory disciplinary tribunal?
  5. Do you agree that lawyers or advocates instructed on behalf of the firefighters by the union may be put in a position of conflict of interests – if, for example, the industrial objectives of the union may conflict with the forensic interests of the firefighter?
  6. How many firefighters have been dismissed since 2003?
  7. Do you know if any member of the Board contacted me to enquire how the statutory process was operating?
  8. Is it appropriate for a body like the MFB simply to discontinue a statutory process without referring to the maker of the statute?
  9. Was it appropriate for the government to intervene in the statutory process in the manner that it did in the final case?
  10. What if any part has the government played in the decision to discontinue the statutory process?
  11. What if any part has the union played in the decision to discontinue the statutory process?
  12. What if any part have the members of the union played in the decision to discontinue the statutory process?
  13. How many of the following are currently employed operationally by the Brigade: (a) women (b) people of Aboriginal Asian or African extraction or (c) homosexuals?
  14. What is the average pay of a commander employed by the MFB?
  15. What is the average pay of a secondary school teacher employed in a government school in Victoria?
  16. How would we compare the qualifications and responsibilities of a secondary school teacher with those of a Commander in the MFB?
  17. One of the cases heard by the statutory tribunal revealed alarming and systemic problems with absenteeism – what has been done to fix those problems?  Why was only one such case brought before the tribunal?
  18. In the last case, the tribunal asked a procedural question that a police prosecutor would have answered off-the-cuff – and correctly; counsel for the MFB asked for time and then to be excused; then six lawyers for the MFB left the courtroom.  Was this appropriate?
  19. In instructing lawyers to appear before the tribunal, did the MFB think to have one of its lawyers instruct a barrister directly – that is, assuming that he or she did not feel up to presenting the case on their own?
  20. What were the legal costs of the MFB in the last case?  What do you estimate to have been the costs of the accused in that case?  I am enquiring of the costs incurred in the tribunal, before the Fair Work Commission and in responding to government interventions or queries.
  21. How many fires on average does a firefighter fight each year?
  22. How much of the time of a firefighter is on average spent fighting fires?
  23. How much of the time of a firefighter is spent in active duty in responding to calls?
  24. For what part of the time of a firefighter on duty would it make any difference if the firefighter was a woman?
  25. What is the divorce or separation rate among firefighters?
  26. How much sick leave do firefighters take on average each year?
  27. How much management time is spent (a) in preparing EBA’s and (b) dealing with industrial issues?
  28. How much time does management spend on operational issues?
  29. How many firefighters have a second job or other employment apart from their employment with the MFB?

Best wishes

Geoffrey Gibson

Passing Bull 31  The Parallel Lines of Scalia and Cruz


Ultimately our ability to live together as a people depends on enough people behaving reasonably.  If enough people are unreasonable, we will fall apart.  Put differently, we have to be able to take enough people on faith or trust for our system to work.  People who abuse that faith or trust may bring us all undone.

The American political system appears to be falling apart for just that reason.  The vulgar bigotry of Donald Trump is just the apotheosis of the drift into unreason and a failure of trust.  Too many people reject the system, and too many players do not follow its rules.

We see American politics now as disfigured by the following flaws:

….a dogged pursuit of ideological assertions and an adherence to outmoded catch-cries (misplaced zeal); an inability to accept that another view may have equal weight or at least some merit (intolerance and over-confidence); a real and not just an apparent indifference to the suffering of others; a failure of governance; arrogance, and personal rudeness, in high office; and a determination not to be affected by what the rest of the world might think (provincialism).  These are the symptoms of the American malaise; what used to be called the Ugly American. 

I have put those words in italics for reasons I will give.

The Supreme Court of the U S is far, far more politicised than any similar court elsewhere in the western world.  It makes Australian and English lawyers very nervous.  One of its most political members was the late Antonin Scalia.  Extracts from a note I wrote on his judgment on guns in Heller follows this note.  You will see that the words I have quoted above about the malaise in American politics comes from that note.  A nation is in deep trouble when its judiciary suffers from the same disease as government.  Very deep trouble.

Apart from the evidence of Heller, there are two grounds for saying that Scalia was not just a political force on the court, but a party political force.

The first ground is the ghastly and unreasonable reaction to the nomination of his successor.  Nothing better shows the breakdown of trust and good faith in American politics.  And the hypocrisy – these people go to bed with the Constitution, and say that its terms must be honoured.  Unless those terms do not suit their aspirations on the political makeup of the Supreme Court.

The second ground comes from a gun-loving, ideological soul-mate of Justice Scalia – Senator Cruz.  Before the Justice was buried, this apostle of hate said:

We ought to make the 2016 election a referendum on the Supreme Court.  I cannot wait to stand on that delegate stage with Hillary Clinton or Bernie Sanders and talk about what the Supreme Court will look like depending on who wins…..I give you my word, if I’m elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings.

Cruz said the court was ‘out of control’.  It has after all allowed the US to enter the 20th century on health care and marriage.  But Scalia was

….an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights.  All liberty-loving Americans should be in mourning.

This bullshit is especially poisonous.  This man, who is more loathed by Republicans than Democrats, believes that the executive can and should control the judiciary – while praising a judge for his commitment to the constitutional separation of powers.  And he also thinks you can identify the extent to which a Supreme Court justice will ‘follow the law.’  The latter is just silly; the former is terrifying.

I am starting to wonder if ‘libertarian’ is code for fascist.  Liberty or freedom is invoked to warrant all kinds of insult to the brain.  Take Scalia’s reasoning in Heller, below.  It is as close to being demonstrably wrong as a constitutional decision could be.  If the right bear arms is warranted to enable citizens to use that right against a government they see as tyrannical, what better model could you have than John Wilkes Booth?  As he jumped to the stage after shooting the greatest man that the United States has produced, he said Sic semper tyrranis: so always with tyrants.  (It is in truth the motto of the State of Virginia.)  Why should the court invent a right the exercise of which is unlikely to be tested in court?  If an armed insurrection succeeds, the government falls; if it fails, the insurrectionists are likely to meet death one way or another.

One legacy of Scalia, and the likes of Cruz, will be the mourning of Americans for deaths in mass shootings that are now almost a daily event in America.  Scalia has gone to God with blood on his hands.

And people outside America mourn for that nation at large.

Poet of the month: Philip Larkin


Thinking in terms of one

Is easily done –

One room, one bed, one chair,

One person there,

Makes perfect sense; one set

Of wishes can be met,

One coffin filled.

But counting up to two

Is harder to do;

For one must be denied

Before it’s tried.



D C v Heller

In District of Columbia v Heller (26 June 2008) the Supreme Court ruled that the Second Amendment confers an individual right that is connected to a natural right of self-defence and is not limited to use for the militia.  Accordingly, since hand guns are ‘arms’ within the meaning of the amendment, they could not be banned by the District of Columbia, nor could they be required to be kept unloaded or disassembled or bound by a trigger lock, since such restrictions would unduly impede the right of self-defence of the owner.

Two things may be said immediately of the majority judgment.  First, it is one of those judgments that leaves you wondering how the contrary view may even have been put.  It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge.  If you did not know better, you might have suspected that its author entered upon the case with his mind made up.  The judgment has the shrill, combative tone of the high school debate.  Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly.  The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’.  In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it.  Some asides are just plain bitchy.  ‘Grotesque’ is deployed for effect in a one word sentence.  In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary).  This is five Justices describing the reasoning of the other four Justices.

It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court.  I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it. 

It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other.  More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers.  It is hard to think of any area of judicial law-framing that requires more care and dispassionate judgment.  A split decision five to four on such a political issue must erode public confidence in the working of the Constitution and government, especially when the majority says that the minority are behaving like the Mad Hatter. 

Judges forever underestimate how much ordinary people fear and distrust divided counsels.  They do not want to see egocentric prima donnas at the highest reach of government.  This is the reason for cabinet solidarity.  How would you sell a 5:4 decision to invade Iraq?  And there is a need for judicial solidarity.  When the US Bill of Rights was passed, and for 200 years after that, the ultimate appeal body for the British Empire forbad dissent – and everybody was better off.  A government seeking legal advice does not want as many opinions as there are lawyers to give one.  A rancorous ideological divide at the highest court in the land on an issue like gun control constitutes a very serious error of judgment on the part of the Court.  This was a bad failure of governance.

Well, some may defend the Court on the footing that this is, after all, America, and they do things differently over there.  Quite so.  If any citizen can carry a revolver down Pennsylvania Avenue, the Justices of the Supreme Court should at least be allowed to be rude to each other in public up at One First Street.  This is public life at the frontier of courtesy.  (When, during the war, a dissenting Law Lord made a reference to the looking glass that his chief, the Lord Chancellor, had been unable to restrain, one of the targets of the barb took the unprecedented of delivering the reproof in a letter to The Times.)

People outside America will be as interested in the facts acted on by the Court as much as anything else.  The hand gun is ‘overwhelmingly chosen by American society’ for the purpose of self-defence.  It is by far ‘the most popular weapon’.  It is ‘the quintessential defence weapon’.  (Why should not Smith & Wesson endorse semi-automatic pistols with these blessings from on high?  It as if the United States were one huge Dodge City.)  During the argument, the Chief Justice and Justice Scalia wanted to know how long it would take to lift the lock off the trigger?  Three seconds was the reply.  Their honours discussed how you might react if you wake up, turn on the bed lamp and put on your glasses, then have to unlock your gun.  (Laughter in court.)  It is as if high members of government in Washington do not sleep easy in their own beds unless they go to bed with their trusty revolver in an unlocked condition, and God help any legislature that makes any law that makes them slower on the draw. 

Their Honours discussed why the revolver might be so popular.  One explanation ventured was that ‘it can be pointed at a burglar while the other hand dials the police’.  This discussion is taking place in the course of a written judgment – in the highest Court in a nation that sees itself at the forefront of western civilisation.  What do you use your preferred hand for – the phone or the gun?  If the burglar is recalcitrant as well as unlawful, what part of the body do you aim at?  Can you shoot to kill someone who never wanted to do that to you, or with your untested marksmanship would it not matter?  Will you still be a hero if the intruder is unarmed, retarded, and dead?  And if the ultimate purpose of the gun is to kill human beings, what about the preacher who said you should turn the other cheek?

Various police bodies put in briefs that chill the blood.  The automatic pistol is the weapon most used in violent hand gun incidents.  You can now buy, for example, a Romanian AK pistol with two high capacity mags for $429.  These things can spit death out at a phenomenal rate.  Who needs two mags, apart from serial killers?

‘Pink Pistols’ put in a brief saying that gay people particularly needed the weapons because they are more prone to violence, particularly at home.  But the most frightening document of the lot was that put in by a body which styles itself as ‘The Association of American Physicians and Surgeons’.  Their first argument is that ‘the primary use of guns is defensive, having a beneficial effect’.  Then –

Without the right to bear arms, an emasculated citizenry becomes vulnerable to tyranny, terrorism and genocide.

Nowhere else on earth could you find soi disant doctors willing to voice such venomous nonsense.  Did these doctors – if that is what they are – consult the American Indian about the link between the use of the gun and genocide?  Would they, if the bribe were good enough, go into bat for those other misbegotten merchants of death, the tobacco companies?

The Court had to deal with a previous decision that the Second Amendment applied only to weapons used by the militia.  This, the Court said, meant that the Amendment did not protect weapons not typically possessed by law-abiding citizens for lawful purposes – such as short-barrelled shotguns.  They referred to Blackstone (4 Commentaries, 148-9) saying that ‘dangerous and unusual weapons’ were prohibited (by, among others, Solon of Athens, who forbade Athenians walking around their city in armour).  The Court did not refer to the statement of Sir William Holdsworth, the leading authority on the history of English law, that the Tudors had prohibited the carrying ‘of certain kinds of arms – such as pistols and handguns’.  On that basis, the English Bill of Rights would never have applied to hand-guns.  (This is not surprising, since their military use has traditionally been confined to infantry officers, or officers of the other services.)  It is unlikely that an American court would now feel the need to rule on the constitutional validity of royal proclamations in light of the Statute of Proclamations (31 Henry VIII c 8), which was passed because of the proclivity of that king to legislate by proclamation, as when he proclaimed Luther as a heretic, but if you want to moor in the backwater, you may have to get your feet wet.

And since no gun has been invented that is not ‘dangerous’, it becomes impossible to accommodate the decision of the Court with the law stated by Blackstone and which was applied in the American colonies.  In any event, legislators and trial judges will have a dreadful time trying to apply these guidelines, and with almost no hope of getting a law as simple as that of Solon or the Tudors.  Why not start with a simple ambit claim?  ‘It is an offence to own, purchase, carry, or possess any gun that is either dangerous or unusual’.  The precedent is unimpeachable.  Your next gambit would be to ban guns not used by your militia, and then limit the guns available to them, but on any view the $429 Romanian AK pistol would be off the table.  Surely.

Blackstone believed that the right to bear arms could only be invoked to the point of using the arms if government had failed.  The reasoning of the Court must allow that Americans mistrust their government and each other to the extent that the Second Amendment must be read so as to allow people to keep and carry hand guns to protect them against their neighbour or their government ‘in case of confrontation’. 

But why do the Americans fear their neighbours?  Because their neighbour might be armed with a gun.  And how is this so?  Because the law does not properly regulate the use of hand guns.  And why is this so?  Because of this interpretation of a badly written and outmoded law.  I have to carry a gun because you might be carrying one.  The Americans have therefore delivered an answer to the prayers of gun-makers and coffin-makers and have given judicial endorsement to the constitutional possibility of perpetual gunfire.

The decision of the majority covers 64 pages.  Is it not remarkable that a simple and unassailable truth takes so long to expound?  This decision is about nine times longer – nine times – than that of the Supreme Court in Brown v School Board of Education, a unanimous decision of the Court that helped the American people move forward and added immeasurably to the standing of the US in the world.  (It is about one hundred times longer than the decision on slavery of Lord Mansfield in Sommersett.)

The Court in Heller was put expressly on notice of the problems of gun control, namely that guns are used to kill people and that outlawing a prohibition of them would lead to more killing.  Here is how the Court washed its hands of the deaths of Americans that would inevitably follow its judgment:

‘We are aware of the problem of hand gun violence in this country… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’

What an appallingly heartless slap in the face to all of those Americans who have lost family or who have been maimed because their government cannot properly control the use of hand guns, the weapon of choice, the Court tells us, of the overwhelming majority of Americans.  Well, the question that Pontius Pilate asked of the prisoner before him was, ‘What is truth?’ and some say that he was jesting as he left the hall of judgment.

The decision of the US Supreme Court in Heller therefore exhibits the following characteristics: a dogged pursuit of ideological assertions and an adherence to outmoded catch-cries (misplaced zeal); an inability to accept that another view may have equal weight or at least some merit (intolerance and over-confidence); a real and not just an apparent indifference to the suffering of others; a failure of governance; arrogance, and personal rudeness, in high office; and a determination not to be affected by what the rest of the world might think (provincialism).  These are the symptoms of the American malaise; what used to be called the Ugly American.

For most people outside of America, that ugliness in respect of gun control – and the image is very, very ugly – was best shown in the image of a B grade actor giving his version of a fascist salute while holding a gun – as it happens a rifle – and vowing to die rather than surrender it, and then getting the Nuremburg style standing ovation that you would expect from a mob of like-minded lightweights.  And for the rest of the world, that is just one step above the Klan. 

We need to see this decision in the overall context set out above.  More than eight hundred years ago the law made provision for people to be armed because there was no army or police.  Before that public duty became a right, the English began making laws to control the use of weapons, including hand guns.  The Bill of Rights made limited rights as allowed by law (including the control of hand guns) and it did so in the immediate context of controlling a standing army.  The US followed the English model by expressly referring to a ‘well regulated militia’ and ‘the security of a free state’, so as to make it plain that they followed the English model.  None of those rights was anything like a universal right, and whatever else the English model extended to, it did not extend to hand guns. 

Yet more than two hundred years after the US model was created, and both England and the rest of the world had moved on into safer realms, the United States Supreme Court rules that the right is an individual right such that the use of a hand gun at home for self defence so that a law that requires the owner to keep it locked is unconstitutional.

The Court did not look at this 800 years history of the law – characteristically it focused on American history – but had it done so, it may have reached a different result.  Oliver Wendell Holmes famously said:

‘The rational study of law is still to a large extent the study of history… When you get the dragon out of his cave … you can count his teeth and claws, and see just what is his strength.  But to get him out is only the first step.  The next is either to kill him or make him a useful animal…  It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.  It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.  ‘

The Court accepted that times had changed but did not see it as its role, as Justice Holmes would surely have done, to take the dragon out of the cave and kill it, or at least make it a useful animal.  No one is under any illusion – this dragon breathes fire and kills Americans.  Thousands upon thousands every year; more than Osama bin Laden could ever dream of killing.

The Court referred to the risk of tyranny, presumably some form of oppression practised by a government that began lawfully.  (After all, even a majority can be tyrannical.)  The revolts against the English Crown in 1215, 1688 and 1776 were all resolved at the point of the sword or the end of a gun, although only the third needed a war.  King John did not have the soldiers.  James II did not have the numbers.  George III found out what the Americans found out in Vietnam and Iraq – it is very hard to sustain an occupation in a faraway land where the home side has the high moral ground.  If you skip the claptrap, the first and third revolts were about money, and the second was about religion.

That brings us back to the enforcement issue.  A right to bear arms is not a right to use them but, passive deterrence aside, there is not much point in having a right to bear arms if you will not have a right to use them.  Americans must presumably use their own judgment of their common law rights when in the home they draw their preferred weapon on an intruder.  But when are you allowed to draw your gun on your government?

In using arms against the state, success is its own vindication; failure means death.  As one American rebel remarked, they ‘would have to hang together or be hanged separately’.  Any alleged right to use arms against a government will not be justiciable until the issue of arms has been determined by arms.  The American colonists rebelled against the English Crown over taxation, and those who would have been hanged as terrorists are national heroes.  The continued vitality of the Second Amendment means that the government of the United States is on permanent notice that the people of the United States reserve the right to respond to ‘tyranny’ on the part of their government by the use of the gun.  That may, I suppose, be ultimately the case everywhere.  It is what Plumb called ‘the implicit right of rebellion’.  But nowhere else will you find it celebrated as a constitutional right.  Only in America do you get that.  But even in America, no government would say to its citizens, ‘If you don’t like my taxes, take up your arms and march’.

If then the Second Amendment ‘codified a right inherited from the British’ as the Court accepted, it was a right that precluded the Crown from frustrating the implied right of rebellion by purporting to disarm the citizenry as the Stuarts had sought to do.  This was nothing like a right to use hand guns for defence against killers at home.  In any event, the Tudors had commenced the process of regulating hand guns some time back in history.  The position in America now appears to be that because of the way America has received its inheritance from the British, it cannot now legislate to control guns in the way that the English started to do more than four hundred years ago.  If that result is juristically valid according to the laws of the United States, it is, if I may say so, grotesque.

We are, after all, looking at a colonial throw-back.  It is very common for the law and customs of the mother country to become frozen in the colonies of the diaspora.  The incomparable Sir Lewis Namier said that the US is ‘in certain ways, a refrigerator in which British ideas and institutions are preferred long after they have been forgotten in this country’.  To stay within the metaphor, the decision of the Court in Heller was nothing if not cold; and it is hard to say that you have won independence from the mother country when you bar yourself in behind its archaic laws.

The majority of the Court in Heller saw fit to refer to Through the Looking Glass in dismissing the reasoning of the minority.  This is an adult fairy tale that has a passage lawyers love to quote when there are disputes about the meaning of words – which is just about all that lawyers argue about.  It is very apposite to the present case.

‘But “glory” does not mean “a nice knock-down argument”, Alice objected.  ‘When I use a word’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.

‘The question is’ said Alice, ‘whether you can make words mean different things’.

‘The question is’ said Humpty Dumpty, ‘which is to be the master – that’s all’.

And everybody knows what happened to Humpty Dumpty. 

The Supreme Court could have avoided this decision on handguns.  The ‘right’ was never universal.  It related to the militia which has nothing to do with handguns or personal self-defence.  The English had already taken handguns off the table.  But some policy demon drove the Court backwards.  This failure of the Supreme Court to slay or tame the dragon in the cave was not just a failure of legal scholarship and judicial technique – it was a failure of moral courage and intellectual leadership. 

Passing Bull 30 – Bullshit you pay for


There is a growing consensus that the independent senators have a lot to offer – especially when you look at those representing established parties.  This now is a common reaction around the world, and is reaching some kind of hideous apotheosis in both the US and the UK.

There are of course exceptions.  David Leyonhjelm is one of them.  He does have a problem with the notion of rational thought.  Anyone who uses the label ‘libertarian’ should be an object of caution.  The senator has unfortunate views on guns and other subjects where he feels disposed to strike a pose as someone who is against government intervention – such as with compulsory packaging for cigarettes.  Every law in some way restricts your freedom.  To object to a law because it does that is to say nothing.

There is some controversy in Sydney about restricting hours for selling alcohol in public venues.  These are described as ‘lockout’ laws.  Since those laws restrict freedom, the Senator objects to them.  This of itself is nonsense.  In yesterday’s AFR, the Senator said:

Recently, in response to public criticism of Sydney’s ‘lockout’ laws, we had Professor Peter Miller telling all and sundry that ‘behind every number is a tragic story – you only need to ask the emergency department doctors, police, paramedics and surgeons who have to clean up the awful toll.’

Yes, violence causes injury and doctors are paid to treat the injuries.  But their involvement is a matter of choice; they are not compelled ‘to clean up the awful toll’.  Indeed, they don’t have to do trauma or emergency medicine, or even medicine itself, at all.  Moreover, no one is forced to join the police or ambulance service.

In fact, doctors demanding lockouts because they don’t like treating the victims of violence is equivalent to teachers demanding parents keep dumb kids at home.  They should do their jobs, or find a job that they’d rather do.

It is terrifying that a person who can be as stupid as this is on our payroll and in the legislature.  The simplest form of logical failure is to state a proposition which you think warrants a conclusion when it does not.  The Latin phrase is non sequitur.  People do not have to work in rape crisis centres, but that says nothing about rape or how to control it.  The preposterous notion that a doctor can refuse to treat someone because he is in some obscure ideological sense ‘free’ to do so merely shows how dangerous the notion of ‘freedom’ is with an idiot like David Leyonhjelm.

The AFR is my favourite paper, but I wonder why it gives space to galahs in politics like this.

As it happens, the same edition of the same paper carried an item headed ‘Elderly will be in charge, but why should they vote?’  It was written by two academics in economics at La Trobe University.  It is non-stop bullshit.

What is needed to redress the balance is some practical, low–cost and politically tractable method of making the age-distribution of the voting public younger, which will better match optimal intertemporal (consumption and taxation) preferences to better fulfil this intergenerational contract.

The world is going to come to an end because there are too many old people with too much political power and the solution of these academic economists is to make voting for them optional.

Many elderly Australians, who struggle operationally to get to the polling booth on election day, would no longer have to worry about receiving a cruel fine in the mail – not to mention those who simply do not like having to vote.  Many others would, for the sake of their children and grandchildren, agree about the need to offset the age profile distortion of government influence.

Making voting optional for elderly Australians can be seen as a democratic way of correcting the political implications of demographic skews.  By better balancing the intergenerational contract, the proposed arrangement would lead to public policies and a fairer, more sustainable, and conducive to future economic growth.

This is a particularly sad example of what happens when you put people in boxes and say that they are all the same.  It is a case of labelling.  George W Bush spoke recently of Donald Trump.  He said his father had told him that labels are what you put on soup cans.  I should declare my bias.  I am 70 and I have paid a lot of tax.  I object to being put in a box on the first ground without reference  to the second.

Poet of the month: Philip Larkin

This Be The Verse

They fuck you up, your mum and dad.

They may not mean to, but they do

They fill you with the faults they had

And add some extra just for you.


But they were fucked up in their turn

By fools in old–style hats and coats,

Who half the time were soppy-stern

And half at one another’s throats.


Man hands on misery to man.

It deepens like a coastal shelf.

Get out as early as you can,

And don’t have any kids yourself.

Reading books again


Over the summer break, I read nine books that I had read before.  I did so because I knew I would enjoy each one, and because with most of them I had a new edition, generally from the Folio Society, to enjoy – and I thought that I might give them some authenticity on the shelf by reading those copies.  After owning a Kindle for 18 months, I finally got it started.  I have used it on a novel by Modiano, which I enjoyed, and SPQR, by Mary Beard, which I did not enjoy – I thought it was expensive and trite.  I have always liked to read a book with pencil at hand to note passages that appeal or that I may wish to remember – even in novels and poetry – and I have reached a stage of life where I enjoy just the feel and look of the book – and its pictures!  For example, I bought the new Folio War and Peace expressly for the purpose of reading it again (this time for the fourth time.)  Those two very handsome volumes cost a tick under $200 – which is a lot – but which is also about the price of the best seat at the Opera.  And this set remains as a thing of beauty and a joy forever.

Since I have written about all but two of these nine books elsewhere, I will just make some brief comments on each.

War and Peace is hopelessly flawed.  Tolstoy cannot help himself with the bullshit about Napoleon, heroes, and free will – the greater the writer, the thicker the thinker – and I had forgotten that it just keeps getting worse as the book goes on.  Then I remembered touring the Kremlin, and I remember the guy pointing to a gate and saying ‘that is the gate that he came in’ and point into another ‘that is the gate he went out’.  When we look at the crooks in charge of Russia now, we might remember that it was the Russian peasant who stopped both Napoleon and Hitler.  But after this reading, I have come to the settled view that this is the greatest novel for me that has ever been written.  It has a sweep and a kind of grandeur all of its own.  Gibbon is the only comparison.

I read Don Quixote again, also for the fourth time.  This time I used some editorial discretion on some of the tales – the structure of the book now reminds me of Canterbury Tales – and I focused on the dialogues between Don Quixote and Sancho Panza.   It reminded me of how good the Philip de Souza reading is on Naxos.  There is a saintliness about the Don that I know of no match for, but Tolstoy can come out with these eruptions of El Greco and Beethoven that are spellbinding.

Old Goriot, in part a take on King Lear, is as close to perfection as the novel can aspire to.  This is one to read about once a year.  Each time something new hits you right between the eyes.  These daughters are up there with Goneril and Regan – I groaned aloud when they sent their carriages and footmen to the funeral of the father that they had killed.

The Leopard is a beautiful elegy.  So is the Visconti film.  This is another once a year job – both book and movie.

One Flew Over the Cuckoo’s Nest is another great book that produced a great film – I think the Big Nurse is up there with Nicholson in the movie.  I had forgotten that it is the Indian who is the narrative.  That was gutsy – one outcast writing about others.  A previous note on this book is at the end of this note.

People turn their noses up at Kim.  Kipling was an imperialist.  Get over it, as they say – there happened to be an empire, back then, and we were part of it – and if you would rather be having this discussion in French, German, or Flemish, let me know.  This book could not have been written by someone who did not have a complete affection for and knowledge of that beautifully corrupt place called India.  Where does this book stand for me?  It is the one I enjoy most.  This book is for everyone – but especially for us boys.

With some writers you are at ease before you finish the first page.  People who are good at their job put you at ease.  Turgenev is in this class – he is the writer’s writer.  On the eve is a beautiful love story that is not buried in the kind of neurotic self-analysis that the Russians went in for then.  This book too is c lose to flawless.  It is worth reading just for the visit of the two lovers to the opera in Venice to see Traviata, a love story that ends with the death of the consumptive heroine.

The other two were Wuthering Heights and The Great Gatsby.  I don’t know what they sprinkled on the porridge of those Brontë girls, but the passion still burns.  This was my fourth reading, and it may be the last.  The structure is tricky and there is bit of an Eroica or Bohême problem – when Cathy goes, there is a long way to go, and Heathcliff is not loveable.  As against that, the other rose in my estimation on this the third reading.

Someone once said that there are only three plots in Hollywood movies.  One of them is the love triangle.  That conflict is at the heart of Wuthering Heights and The Great Gatsby.  In each the heroine falls in love – fairly madly – with the hero, and then marries another man who is less desirable romantically but more desirable socially.

Cathy and Heathcliff are very much in love but Cathy expressly rejects Heathcliff for a man who is socially more acceptable, but who is not nearly as attractive – she says that she will use the marriage to help raise Heathcliff up.  (Cathy is very impressionable.)  Daisy falls for Gatsby and then marries a rotter, who happens to have a lot more social standing and money than Gatsby, but whom she never loved as much as Gatsby.  (Daisy too is bit flighty – it is just as well one of these books was written by a woman.)  The split here is not just for social reasons – the absence of Gatsby after the war is a catalyst.  (As in An affair to remember.)

Both Cathy and Daisy are previous and precocious.  Both Heathcliff and Gatsby have dicey pasts.  Heathcliff is a foundling who looks like a gypsy.  Gatsby came from the other side of the tracks, but a fluke of history enabled him to rise, at least on the surface.  He lies entirely about his past – for reasons that seemed good to him.  He also lies about his present – he is a crook.  Heathcliff is not a crook and he does not lie about his past.  The crowd that Gatsby attracts are not inclined to query his past or present.  Heathcliff has cut himself off from caring about what the world thinks.

Heathcliff is brutal, and we might have trouble now in seeing just how far his brutality was simply a feature of the way people, and in particular men, acted back in those days and in those places.  Gatsby is not brutal, at least physically, but it looks like his money derives entirely from crime – although prohibition, which enabled him to become rich, did lead to a lot of crime.

The brutal man in that novel is Daisy’s husband Tom.  He is not only brutal but hopelessly unfaithful in his marriage.  He comes from a caste that promotes marital infidelity and racism, and he is of a type that can easily hit a woman, particularly if she is socially inferior, and compromised by being his mistress.  Heathcliff and Tom are both studies in what we now call the epidemic of domestic violence.

Both of the rejected lovers become obsessed to the point of madness by the termination of their great loves.  They both acquire fortunes – we are only given a general idea of how Heathcliff gets his – perhaps with the express purpose of trying to retake the women they loved.  They both buy expensive properties and move house to be close to their prey.  Heathcliff pursues some kind of dynastic revenge and strikes out at all those associated with people who have got in his way in a manner that is terrifying.  Gatsby is far less intent on creating what we call collateral damage.

Each of the heroes establishes a kind of reunion – it was probably physical in the case of the later model, because it had been before – but the reunion does not last.  It is as if the forces of a Greek tragedy preclude the lovers from living happily ever after.  Romeo and Juliet is of course the template.

Cathy dies in love with Heathcliff although he had been cruel to her in the reunion.  Gatsby is murdered on a false premise arising from two trains of deceit.  Heathcliff dies in a kind of slow suicidal delirium still obsessed with the dead Cathy.  Daisy survives when Gatsby is killed as the fall guy.  She appears to be reconciled to her husband, Tom.  That is punishment enough, because he is a rolled gold Fascist, the other product of the Jazz Age.

Well, I suppose we knew that there are endless combinations within a triangle.  One of the other plot themes is that of the hero undergoing trials to save the world, as in Star Wars.  I am not sure about the third.


Ken Kesey (1962)

Folio Society, 2015; bound in cloth blocked with a design by the artist David Hughes, in mustard slip-case; introduction by John Sutherland.

You are strapped to a table, shaped, ironically, like a cross, with a crown of electric sparks in place of thorns.  You are touched  …and Zap!   It is a clever little procedure, simple, quick, nearly painless as it happens so fast, but no one ever wants another one.  Ever.

This was a protest moment in a protest book published in a time and place preoccupied with protest and drugs, the US in the early 1960s.  The start of the book One Flew over the Cuckoo’s Nest must also have grabbed attention when it was first published in 1962.  ‘They’re out there.  Black boys in white suits up before me to commit sex acts in the hall and get it mopped up before I can catch them’.  Ken Kesey dedicated the book to someone ‘who told me dragons did not exist, and then led me to their lairs’.  Cuckoos lay their eggs in the nests of other birds.  They leave one egg in each nest.  The newly hatched cuckoo therefore feels free to throw out the others.  This is the dark side of Darwin’s natural selection.  Should we be above that?

Kesey was brought up on a dairy farm in Colorado.  He was a star wrestler and drama student at Oregon.  He took part in government drug tests.  He was paid $75 to take LSD and mescaline.  He was in with the beat crowd and he became a kind of priest of psychedelic culture.  He got into trouble with marijuana and he did time for getting up the nose of the cops.  He worked a night shift at a hospital for vets and this led him to our novel, his first.

The mental ward in One Flew Over the Cuckoo’s Nest is for Kesey what Animal Farm and Nineteen Eighty-Four were for George Orwell – the threat posed by ‘them’ to ‘us’.  It is a story of a power struggle between two people told by a third, an immensely tall and large Indian called Chief Bromden.

Nurse Ratched is a very, very evil character, as evil as any referred to in this present book.  She is a 50-year old single former Army nurse.  She has a practised sexlessness that seems to threaten men with its very sterility – in the male language of the time, she is a ‘ball cutter’; she could feed their jellies into a garlic crusher.  It is not so much that she is puritanical as that she is matronly – the word could have been invented for her.  ‘Precise, automatic gesture.  Her face is smooth, calculated, and precision-made, like an expensive baby doll, skin like flesh coloured enamel, blend of white and cream and baby-blue eyes, small nose, pink little nostrils – everything working except the colour on her lips and finger nails, and the size of her bosom.  A mistake was made somehow in manufacturing, putting those big, womanly breasts on what would have otherwise been a perfect work, and you can see how bitter she is about it.’

Remember that the US is coming out of McCarthyism, and that Kesey would have been a front-line target for a body like the HUAC.  The Big Nurse has the perfect technique for crushing weakened male inmates (classed as ‘Acutes’ or ‘Chronics’).  She does not accuse; she does not need to.  She insinuates.  She has a genius for insinuation.  And she insinuates that her charges are at fault, and weak, and that they are only safe when they submit to her control and are at peace with the matron.  If the phrase ‘control-freak’ had not been invented, she would have required it.

And she puts on this front that she is doing it for their benefit, and she requires them to submit to this too.  It is a lie.  She is doing what she is doing because her mission in life is that of the bully – to dictate and to control, to ‘stand over’ in truth – those who are weaker than she is – and that is everyone in the ward, because the patients are patients – voluntary or committed – and because she selects and breaks the staff and only allows doctors who go along with her regime.  She disciplines, bullies, tranquillises and sedates – and punishes with shock therapy.  An immovable case gets the worst kind of head job, a lobotomy.

This is how one of the nuts – that is the term used in the film – previews her retaliation after they have been enjoying themselves:  ‘We shall be all of us be shot at dawn.  One hundred cc’s apiece.  Ms. Ratched shall line us all against the wall, where we’ll face the terrible maw of a muzzle-loaded shotgun which she has loaded with Miltowns!  Thorazines!  Libriums!  Stelazines!’  The book was in many ways prophetic.

Into this drug induced still-pond under the fog comes lightning.  It comes in the form of a rude, loud, slippery petty crook.  Randall P. McMurphy faked his madness to get out of gaol where he had had to work.  Barrel-chested and red-haired, he is a conman and an excitement machine and a myth-maker.  He wins the confidence of the nuts even as he takes their money.  And he realises instantly that it is Big Mack versus the Big Nurse; the Lord of Misrule v The Badge of Chastity; Anarchy v Law – and the World.  The ward –and the world – is not big enough for both of them.

Big Mac and Falstaff have some things in common.  They are dishonest, they have front, and they have a kind of forbidden allure that attracts, and even inspires, others.  But that is all they have in common.  Falstaff could never have done and would never have tried to do what McMurphy does.  McMurphy has courage as well as front.  Falstaff is a coward.  McMurphy also has remarkable endurance.  He can intimidate and wear down opponents in a way that Falstaff never could.  Falstaff was always a bit player, but Big Mac is ready to put himself on the line for the main event.  Falstaff would never have attempted what McMurphy did because there was too much risk and not enough fiscal return at the margin.  And Big Mac would never have had airs like a knighthood.  McMurphy has balls, and Nurse Ratched wants them.

The Chief saw McMurphy as ‘a giant come out of the sky to save us from the Combine’.  The Chief would also say that ‘I’m just getting the full force of the dangers we let ourselves in for when we let McMurphy lure us out of the fog’.  The Chief would have got on with Don Quixote.

Was McMurphy a real liberator of the oppressed?  Or was this just another con?  Possibly, but what matters is that Nurse Ratched knew that she was in for the mother of all battles and that the nuts were ready to go and stay with McMurphy if he was good enough.

Kesey’s decision to cast the narrator as an Indian – Chief Bromden – was courageous, but he had had experience with Indians.  When he was leading a round-up with his father, an Indian with a knife between his teeth deliberately ran into an oncoming diesel truck that was bringing piping to a dam project.  Kesey had witnessed a man who had been willing to make the greatest sacrifice in honour of a way of life, a way of life that no money could buy.  The dam had represented the destruction of a way of life.  The Indians, too, were outcasts lined up against the Combine.  They had learned that the most pervasive and lethal drug of death of the paleface is alcohol.  McMurphy reminded the Chief of a time when the Indians used to spear salmon in some waters but then gave up their rights – under duress – for money.

The Chief has a lot of the Greek Chorus and Shakespeare’s Fool.  He is also the Epilogue, although more active than most, and the part is equally attractive in the book and the film.

So, the trial of strength starts. The power plays involve the volume at which the music is played in the ward, basketball practice, whether they can get to watch the World Series on TV, a fishing expedition, bringing grog and hookers on to the ward.  It is exhilarating reading (and viewing in the film).  We are looking not so much at liberation as what we – even we men! – have learned to describe as empowerment.  The Combine does not like people who are different.  Since people are different, the Combine is a problem.

The fishing expedition was a huge leap of faith and a great step forward for the nuts.  McMurphy then gets punished with successive doses of shock treatment, but he is still there on the night that the whores turn up with the booze. The drama surges around the cast like the finale of the Fifth Symphony of Tchaikovsky.  The scenes with the nuts and sluts are very high drama.  When the Big Nurse finds Billie, locked away by his mother, in bed with Candy – ‘Good morning, Miss Ratched, this is Candy’ – she reacts with the venom of a taipan.  ‘She got the response she was after.  ‘Billie flinched and put his hand to his cheek like he had been burned with acid.’  The venom is lethal, and McMurphy is pushed over the brink.

There are only ten pages of the novel left.  If there is a novel with a more powerful finish, I am not aware of it.

The film came out in 1975 and won five Oscars.  A large part of its success was due to the Czech director, Milos Forman.  East Europeans and Latin Americans are good with off centre stories.  Louise Fletcher is stunning as the nurse and deserved her Oscar at least as much as Jack Nicholson.  (Brando and Bancroft knocked back the parts.)  She can inflict and receive pain unflinchingly and unwittingly.  Among the highlights of this great American movie are the Chief striding up and down the basketball court, and, at the end, bringing his own form of peace to the closure.  The Chief is serene.  The film could be a homage to his nation.

The book is not so much about madness and freedom as our capacity to tolerate differences in others and our readiness to resist the mediocrity of the conformists.  We deprive some insane people of their liberty by incarcerating them; we can do as much with medication.  When the time came to write the biography of the mad man who started the Oxford English Dictionary, the author was driven to ask whether we would get the same result now because of the way we medicate those whom we call mad.  And who is to deny that more light may enter a cracked mind than one that is sealed?

1962 was the year Doctor Martin Luther King said: ‘And whenever men and women straighten their backs up, they are going somewhere, because a man can’t ride your back unless it is bent.’  Dr King said to coloured people what Mc Murphy was saying to the nuts.  This book is one of our little triumphs, something to treasure.  One Flew Over the Cuckoo’s Nest is one of those books that make you want to stand up and punch the air and shout out loud.  Like The Graduate, here too was a movie to define a generation.

Passing Bull 29 – Let the sun shine upon ME

A member of the Seekers once described a friend of mine as a Kelvinator – she could not walk past a fringe without opening the door to feel the light shine upon her.  That was not fair to her, but it is dead right for some people who are, one way or another, in the entertainment business.

There must be something very bad in the legal air in Sydney.  Dyson Heydon has been making a fool of himself ever since he accepted his commission from Tony Abbott.  Now we have an intense competition between former members of the Supreme Court as to who can be the rudest and the silliest.  It is very unsettling to watch, even from this side of the Murray.

A lot of it has to do with ICAC.  A lot more has to do with Margaret Cunneen S C who is regularly described in the press as ‘one of Australia’s most accomplished criminal prosecutors and a media darling’.  She sounds like a real Kelvinator.  She just cannot help herself.  The other day the AFR reported that she had said of ICAC that ‘they are out of control, these people.  The whole thing has to be completely destroyed.’  And of the ACC: ‘The whole thing is a total attempt to annihilate what they think is a very political conservative, when I was told I had a chance to be a Supreme Court Judge.’  She referred to a former Supreme Court judge who had defended ICAC as ‘an old man with dyed hair trying to get back on TV.’  She said of the head of the child abuse Royal Commission that he ‘seems to have it in for me – I think McClellan is the author of all my bad press, until ICAC.’

This is all unspeakably vulgar and unprofessional.  If this woman ever had any prospect of a judicial career, she has none now – and at her own hands.  You wonder if she is fit for any office at all.  The press says that her ‘background briefings, networking and friendships with journalists are legendary.’  The last thing that this country needs is a prosecutor who goes in for that sort of thing.

Shane Warne and Eddie McGuire are both legendary Kelvinators.  Warne is now intent on proving just how stupid he really is.  The other day he attacked Steve Waugh for dropping him.  It gives you an insight into ego when someone complains of being dropped.  That must be unthinkable.  But even if there were some ground for the complaint – and there was none – Warne should have kept his mouth shut  Steve Waugh is in my view the toughest cricketer that we have produced in my time, and that means he is the best.  The difference between him and Shane Warne is that he has character.

There is another reason why Warne should be keeping his head down.  A charity that he was associated with, the Shane Warne Foundation, looks to have been a temple built for egos.  It is being shut down.  Eddie McGuire was one of the ‘celebrities’ on the board.  He said that ‘The reason why nobody has bailed off the board is that we really believe in this bloke, we believe in Shane Warne, we know his heart, we know his track record, we know he has recast this foundation.’  Well, Eddie, perhaps you should have bailed off the board when you found out that the brother of Warne, Jason, had been paid an $80,000 annual salary in the same year that the foundation had donated just $54,600 to charity.  Looking after the family before charity does not look good in a charity, not least if those who run it are in it for their own ego.

In both these instances, the bullshit is corrosive.  Bullshit and ego are a bad mix.  Cunneen, Warnie, and Eddie have all made enough money out of blowing their own trumpets to be able to afford to buy banks of Kelvinators and leave them on with their doors open all night.  That might serve to cool them down, which would be helpful for the rest of us.

Movie and Opera

Different people see films and operas differently.  Some people liked TitanicThe Age gave it five stars and I have never forgiven them – and I thought it was the worst film I have seen.  Some people like Looking for Grace, and I thought it was the second worst film I have seen.  It was staggeringly slow, boring, incredible, and irritating.  A money back job.  I thought the Melbourne Opera show of Mozart’s Seraglio was a wonderful night’s entertainment – and I may have been the only one there not speaking German.  This is what Mozart, at least in that phase, and entertainment should be.  The Age reviewer must have slept through the opera and his writing his review.

Poet of the month: Philip Larkin

Naturally the Foundation will Bear Your expenses

Hurrying to catch my Comet

One dark November day,

Which soon would snatch me from it

To the sunshine of Bombay,

I pondered pages Berkeley

Not three weeks since had heard,

Perceiving Chatto darkly

Through the mirror of the Third.


Crowds, colourless and careworn

Had made my taxi late,

Yet not till I was airborne

Did I recall the date –

That day when Queen and Minister

And Band of Guards and all

Still act their solemn–sinister

Wreath- rubbish in Whitehall.


It used to make me throw up,

These mawkish nursery games:

O when will England grow up?

But I outsoar the Thames,

And dwindle off down Auster

To greet Professor Lal

(He once met Morgan Forster),

My contact and my pal.

Passing Bull 28 Just who is running this bloody country anyway?


We have become resigned to the fact that we have lost responsible government in Australia.  Ministers no longer resign when someone in their charge does something wrong.  They sack the wrongdoer.  On a very good day you might get an expression of regret.  You will not get an apology – and of course resignation is entirely out of question.  It has only taken about a generation to wind up that part of what used to be called the Westminster System.

There appears to be a new and possibly more insidious invasion of ministerial responsibility.  A suggestion has been made that a federal government minister has not complied with some written standards.  The Prime Minister says that he has referred the issue to a senior public servant.

There are two things here.  First there is apparently some written code that someone has prepared – I’m not sure whether it applies just to this government or all members of this party or what its standing is; I am accordingly even less sure of whether its prescriptions would accord with what members of the public might think should be standards of decency to be expected from their elected representatives who happen also to be ministers of the Crown.  That is one issue – our legal system has not always got on well with codes.

The other question is why the Prime Minister, or any minister, or any Member of Parliament is referring an issue of their conduct in office to a civil servant.  Judges do not ask their clerks if they have done something wrong; generals do not ask their valets if they have buggered something up in battle; doctors do not ask their receptionists or even their nurses whether they have got something wrong.  Just who, then, is in charge?

The accused minister is happy to describe the civil servant as ‘the highest public servant in the land’: golly, should we curtsey?  I had assumed that this personage would merely offer some report or advice.  Perhaps we could live with that level of intervention, as long as the decision is ultimately taken by those who should take it, namely, the relevant ministers or members of Parliament.

But that view does not appear to be shared by all of the press.  The senior political reporter for the AFR yesterday said that the fate of the accused minister ‘now rests with senior public servant Martin Parkinson who is deciding whether Robert [the accused minister] breached the ministerial code of conduct.  If he finds he did, his future is grim.’  That report does suggest that this civil servant has received some kind of high judicial appointment.

Well, these things happen in the press, but other suggestions in that report of Phillip Coorey are a lot more disturbing.  The article says that in June 2013 a Chinese billionaire attended a dinner at Parliament House.  So also did Tony Abbott, his chief of staff Peta Credlin, the then Shadow industry Minister Ian Macfarlane and the Shadow Minister for defence Stuart Robert – who is now the minister the subject of the enquiry.  The article then goes on to say that the Chinese billionaire gave each of these people ‘designer watches… as a goodwill gesture…’  In addition, watches were provided, the article says, to the wife of Abbott and to the wife of Robert who were not there.  It must have been quite a night at Parliament House – did the bountiful Chinaman turn up with a big sack of gifts like Santa?

Mr Macfarlane then went and saw the clerk of the House of Representatives to declare his gift.  So here we have another case of politicians referring to civil servants for advice on their professional conduct.

But then Mr Macfarlane made a very serious mistake.  He ‘reasoned’ that his ‘designer watch’, a Rolex, was a fake.  Was the then Shadow Minister an expert in watches, fake or otherwise?  Mr Macfarlane, whose star has fallen, comes across, with some effort, as a plain man from the sticks – but that did not stop him estimating the value of the ‘fake Rolex’ at between three hundred dollars and five hundred dollars.  This was, I gather, beneath the value in which he had to make a public declaration relating to the gift.

The article appears to me to suggest that the clerk of the House was a party to this exercise in assessing the value of the gift.  If so, both of those involved were making a very serious error.  It does suggest, to put it at its lowest, a cavalier regard for determining the value of gifts for determining how someone in a position of public trust should respond to them.  Getting a fake Rolex might be one thing; getting a real one is altogether a different thing.

And the problem is worse for Mr Macfarlane because his thinking was apparently predicated on the assumption that the Chinese billionaire who made the gift was a crook – a crook who could not even give a proper watch, but had to give a fake one.  This is hardly a good position to start from if you have two come to explain later on why you get accepted a gift – that you thought that the donor was a crook.  You may be able to dismiss a fake as a bauble, but no one is naive enough to think that Chinese businessmen are handing out real Rolex watches to Australian politicians for nothing.  I’ve had some difficulty in following the current allegation against Mr Robert, but I doubt whether it is as serious as suggesting that he received a gift worth tens of thousands of dollars from a Chinese businessman.

But then apparently Mr Macfarlane ran into a colleague who had a real Rolex and who compared the weights of the two watches.  On the basis of that show of expertise by another MP, the two of them concluded that the gift was a genuine watch.  Golly – what will we do now?  Mr Macfarlane then had the watch valued – which he should have done in the first place if he was serious.  He was then told it was worth $40,000!  And he was also told, again according to the article, that his watch ‘wasn’t as flash as those given to Abbott, Margie Abbott, and Credlin’.  Was even the sky no limit to this bounty from the Orient?

What should Mr Macfarlane do then?  Well of course he should go back to the clerk and be advised what to do.  He told the clerk that he thought he should hand it back.  The clerk said he was entitled to keep it – which is an interesting proposition of either propriety or law – but that giving it back would be a good idea.  It would be interesting to know how the return of the gift was worded.

The article then says that Mr Macfarlane informed Mr Tony Nutt who is now the federal director of the Liberal Party of the problem.  Mr Nutt then ‘ordered the immediate collection of the watches so they could be given back… Robert like his MP colleagues complied.  There remain suggestions one watch was not returned.’  The word was ordered.  The scene may have been more interesting if Mr Nutt’s predecessor had issued such an order to Ms Credlin.

So here you have a whole group of politicians who should know better behaving in a very curious way in response to gifts of Rolex watches by a visiting Chinese businessman of great wealth. Whoever else the arbiters of ministerial conduct may have been, they appear to be here the clerk of the House of Representatives and the director of the Liberal Party.  We are told how Mr Macfarlane blithely accepted these gifts of great value – but we are not told how the other donees pacified their consciences.

I happen to know something about Rolex watches.  One thing I know is that Rolex watches of the kind apparently being handed out here are worth many times the value of a bottle of Grange Hermitage.

Those who want to condemn footballers for the way that they accept what their employer tells them would presumably be horrified at the conduct of these leaders of the nation with a Chinaman on the make.  Who do you think behaved more irresponsibly – the footballers who accepted what is alleged to be Flyaway X, or the political grandees who accepted actual Rolex watches worth $40,000 each or more?

But, whichever way that you look at this report, there is some absolutely prime bullshit here.



When I said in my previous note that Essendon lied to the players, I should have made it clear that that allegation is predicated on the assumption that the relevant finding by the CAS Panel was valid.  I was saying, or meant to say, that if you accept the decision of the Panel, then the other propositions followed.


Poet of the month – Philip Larkin

Long Sight in Age

They say eyes clear with age,

As dew clarifies air

To sharpen evenings

As if time put an edge

Round the last shape of things

To show them there;

The many-levelled trees,

The long soft tides of grass

Wrinkling away the gold

Wind-ridden waves – all these,

They say, come back to focus

As we grow old.


Movie – Steve Jobs

This film is brilliantly written. It is put together like a top West End play.  Fassbender and Winslett look perfect in the lead roles.  (I did not think she had it in her.)  The only problem is that the hero, who is rarely off the screen, at a personal level makes Hitler look like an avuncular softy.  Jobs has a manic need to hurt those closest to him, and to insult and bulldoze people, especially the weak.  Is it something in his past that makes him degrade people in a way that makes us wince?  He is what we call ‘damaged goods’ – he has a maimed psyche.  (There is a lot of the revenge of Heathcliff and Gatsby in this character, but more of that later.)

At his best, Jobs was like Wagner – a rolled gold shit who thought that the world owed his genius obeisance and that it also owed him a living.  There is no genius here.  Jobs says that he is not the musician but the conductor.  He is no more a genius than the Madam of a high-class knock-shop, if a bit better paid.  The film is often painful, but it is well worth it – even if the end is tartly mawkish.

This film is as good in its own way as The Big Short.  After you have seen both, you might conclude that the big winners in big business are crooks, nuts, or psychopaths.  Well, is this what Shakespeare may have called the ‘promised end’ of capitalism?  Was Karl Marx right after all?

The haughty arrogance of lawyers -Part 4-Grounds for holding a public inquiry

So far, I have sought to make good the following.

First, it does not matter what you or I or God think of what these Essendon players did.  I am concerned with whether they have been fairly treated.  Did they get due process?  Was justice done and seen to be done?  Did the players get a fair go?  You may be surprised to learn that those questions mean much the same in the eye of the law – and, I take it, for those outside the law.

In my view the answer to that question is no.  I set out a summary of my reasons for that conclusion in a previous note as follows.

They should never have had to face charges on these issues that did not call for proof of intent.  They should never have had to face fixed penalties.  They should never have been required to exculpate themselves on penalty once a finding on strict liability had been made.  They should never have been faced with a second prosecution after they succeeded on the first.  The prosecutors should not have been allowed to change their case.  The identical sentences for very different cases are demonstrably unjust and logically untenable.

Second, if you think that the players did not get a fair go, it does not matter if that unfairness derives from the provisions of the WADA Code or from the decisions and reasoning of the CAS Panel.  Both the Code and the decision are the work of foreign lawyers (at least a majority on the Panel), and it does not matter to the players which product of the lawyers was instrumental in their downfall and present suspension.  If any player is precluded by his personal agreement with WADA from complaining about what WADA or CAS have done to him, he should look to those responsible for his agreeing to any course that could have led to such a result.

Third, because the CAS Panel was precluded by the Code from judging each player on the merits of his own case, and because each player was subject to the same mandatory penalty regardless of his level of fault, then in my view it follows that justice has not been done to the individual players – again whether or not that injustice flows from the Code or the Panel decision or both.  The conclusion of injustice in my view follows from a proposition that I regard as axiomatic.  Each player is or should be entitled to have his case determined on the merits of his own case.  If you do not accept a proposition that I regard as axiomatic, there is no point in our continuing this discussion any further.

Our law deals with the rights of persons, not with the rights of groups of people.  At least, that is what it does for the most part.  When it departs from that principle, as some governments now do in dealing with ‘terrorists’, and as some did in dealing with ‘Gypsies’, then we know that those governments are chancing their arms.  The Great Charter of 1215 said that ‘no free man shall be… in any way ruined, nor will we go against him, except by the lawful judgement of his peers or by the law of the land.’

Fourth, if you do accept the decision and the findings of the CAS Panel, you need to remember just what it decided and just what it found.  The Panel did not make a finding of dishonesty or cheating, either by the criminal standard of proof, or at all.  The Panel made its findings on a standard of proof that is less in some unquantifiable way than the standard imposed for many hundreds of years – for longer than the white man has been in this country – by our criminal law of proof beyond reasonable doubt, but higher, in some equally unquantifiable way, from the standard of the balance of probabilities in civil proceedings.  The Panel found on the basis of circumstantial and expert evidence that its members were comfortably satisfied that the players had – and that every one of them had – taken some prohibited substance of a quantity that they could not specify, and with consequences that they did not attempt to make any finding upon.  Then they found that they were satisfied, to an unspecified level of comfort, that the players had not discharged the onus that the Code put upon them to prove that they had acted without relevant ‘fault’.  It is remarkable, indeed, that the Panel could make this finding against each one of the 34 accused without separately ruling on the evidence that related to each one of them.  Is it seriously contended that each of the 34 footballers was equally culpably uninquisitive about what was going into his body?  Is the Panel really saying that they were all equally dumb or naughty?

The Panel did not say that any Essendon footballer had sought to gain, or that he had gained, an unlawful competitive advantage.  So, whatever else the Panel found, it did not make any express finding of against any player of cheating.  The fact that the reasons of the Panel not only do not make this clear, but obscure it by muddying the waters with groundless speculation about the effects on the players of the alleged consumption of prohibited substances and by their finding that all accused had failed to prove that they were innocent, is another reason why I conclude that these people on the Panel were not up to this job.

Fifth, although for the most part neither WADA nor the CAS are concerned with what lawyers call the merits and with what other people called justice, the reasoning of the Panel on what may be called ‘the merits’ is sadly flawed.  The reasoning is in stilted legalese with no attempt to explain it to the losers, with no attempt to explain how limited their decision was, and with no attempt to acknowledge that the Code was driving them to a result that most Australians find odd and that a lot of them find revolting.  Some of the comments of the Panel on the conduct of the players are just silly.  The members of the original tribunal knew what they were doing and they were better placed to do justice to these footballers, and they did so.  The members of the CAS Panel did not know what they were doing, and it shows.

Sixth, I find it offensive, and I invite other Australians to find it offensive, to be told by people from outside Australia that we in Australia cannot be trusted to regulate our own professional sportsmen, but that we should hand over our responsibility to do so to foreigners, whom we do not know, and that we should leave those foreigners with the power to rule over our own citizens, with the power to cancel their right to work, and that we should put our trust in foreign bodies and foreign laws – if it matters, laws that are not made democratically – for our own good.  The coup de grâce is that those bodies that we are asked to trust derive from and still have links with bodies that are notorious all around the world for being utterly and irredeemably corrupt – the IOC and the IAAF.  (And you do have to wonder about WADA.  Its governance comes from governments and the Olympic movement.  From 2008 to 2013, its President was a failed New South Wales politician named John Fahey.  He was a member of the New South Wales political party that has been the staple diet of that state’s anti-corruption authority.)

Seventh, in the best tradition of Australian sports administrators – the ones that we used to call the Panama Hat Brigade – the AFL has been at best silly and at worst cruel.  Those responsible, including Fitzpatrick and McLachlan, should resign – but they won’t; they will adopt the Lord Coe gambit.

And now I may add that we have the absurd spectacle of Australian workers having to defend their right to work by hiring lawyers to address a Swiss court in French.  Which improvident clowns exposed the poor players to this indignity?

The first ground for holding a public inquiry

In an area of trade and commerce that is of interest to and which affects people across the Commonwealth of Australia, people in business, government, and the professions who are responsible for the conduct of that trade and commerce, have brought it into disrepute and have caused people to lose confidence in it.  The delay and ineptitude of almost all those involved have become matters of what is called a public scandal.  The sequence of actual past events and possible future events is as follows.

  • If you accept the findings of the CAS Panel,  Essendon lied to its players about what they are being injected with.
  • The AFL punishes all involved at Essendon for bringing the game into disrepute, although no dishonesty was alleged, and although no harm or undue advantage was proved.
  • ASADA is slow and puts its case in a way that loses and that it later gives up. Even though ASADA is very inept, it is very loud and entirely unprofessional.
  • Essendon loses or has squashed various court proceedings.
  • The WADA Code is finally enforced on appeal by a CAS Panel that makes no finding of dishonesty but which imposes a fixed penalty on all of the players irrespective of individual cases. The panel says that the players did not do enough to show that their employer was a crook.
  • The players go to Switzerland in search of justice.
  • The players then sue Essendon for the original lies and its failure to look after them.
  • The players or Essendon then sue the AFL for exposing the livelihood of the players to a process that denies them due process and by leaving those players in the hands of the body that people do not trust – WADA.
  • The damages that the players seek are compensation for the consequences of the penalty inflicted on them by WADA and the CAS panel – and possibly for the consequences of the penalty inflicted on Essendon as a whole by the AFL.

That pile-up is too big to ignore.  And a prime suspect is a Commonwealth statutory body.

The second ground for holding a public enquiry

It is for the courts to determine what is lawful, and for others to say what is right.  But experience suggests that the odds are that we will never get a ruling from the courts (apart from the watch makers), at least at a level that some of the concepts might call for.  It is therefore appropriate that the Parliament conduct an enquiry into these issues in the national interest.  Some of the issues are:

  • Was the AFL obliged to act in good faith and in the interests of the players? Did the AFL discharge those obligations?  The AFL throughout has appeared to act defensively in its own interests, that is, the interests of those who run it, rather than in the interests of those the AFL should look after – the players, members, patrons, and fans.  They have behaved like the directors of a takeover target or the hierarchy of a church charged with abuse and breach of trust.
  • Magna Carta and the Bill of Rights are still part of our (Victorian) law. We shall not have justice delayed, sold, or denied.  We shall not be subject to cruel and unusual punishments.  Justice for the players was plainly delayed.  It was equally plainly sold.  (Heaven knows how much these lawyers have trousered for this mess.)  Was justice denied?  Were the players subjected to ‘cruel and unusual punishment’ in breach of the Bill of Rights?  If so what are the juristic consequences of any such breaches of our law that are more deeply entrenched in it than any other parts of it?
  • Contracts that restrain trade are void under our law. Can that law be avoided by a contract between other parties?  Can our law of due process be avoided by contracts between parties?  Even if the parties whose trade is restrained or whose rights are denied are not parties to the contract?  Was it either lawful or proper for the AFL and for Essendon to enter into contracts to permit the restraint of the trade of the players without their agreement, and with a denial of due process that would have infected any termination at common law?

The third ground for holding a public enquiry

Truth in history is relative, but a Senate enquiry would have a much better prospect of reaching after it than anything that has gone before.  That may not be saying much, but should we as a nation decline to take the opportunity?

Movie – The Big Short and the Cancer in Capitalism


G K Chesterton once said that the ultimate test of a Catholic was to visit Rome and remain in the faith.  You might say that about a capitalist going to Las Vegas – or watching The Big Short.  Las Vegas is the ultimate temple to greed and emptiness.  It is therefore only right that this film reaches a kind of climax in Las Vegas.  The film, following the book of the same name by Michael Lewis, is as full a diagnosis of the cancer in capitalism as you could find.  It is also as good a movie as I have seen for a long time.

Banking is not hard.  The bank takes money from me and pays me the cost to them of X %, and then lends that money on to you for a price for them of X +Y% and trousers the Y% difference in the two rates of return.  The only way the bank can lose is if you default on the loan.  That loan will be secured by a mortgage.  The effect of a mortgage is that the bank can sell your home if you don’t repay the money.

There are therefore two ways the bank can get it wrong.  It can lend you more than you can afford and put you in a position where you may well default if there is some change in your fortune.  Then if you do default, and the housing market has gone down, and the bank has lent too much to you, it may not recover its money at all.

This is at the bottom what happened with the failure of the mortgage market in the US in 2007 that led to the Great Financial Crisis.  It was compounded because very clever people in the finance industry and bond markets – all known in America as Wall Street – bundled up all of these mortgages in fancy sounding documents and securities that hardly anyone ever bothered to read or try to understand and then sold rights to the returns on the mortgages as bonds.  The bonds of course were only as good as the underlying mortgages – no matter how complex the eventual layers on the cake became, the whole structure turned on the capacity of the original borrowers to repay the loan, or of their secured property to make good any default.  If interest rates went up, and the property market went down – and those two events commonly occur together – then the house of cards would all fall down.  That is what happened in what we call the ‘sub-prime’ mortgage debacle that brought the financial world to its knees.

(As it happened, I had to look at most of this a long time ago when acting for the government after Pyramid failed – some silly people (including one Supreme Court judge) suggested that the government may have been at fault!)

This all happened because people who were negotiating the original mortgages and then tying them up to sell them on were being paid so much by way of commission that they lost any interest at all in the worth of their transactions and simply kept churning out the mortgages and all the subsequent bonds in order to get their own commission and irrespective of the consequences.

There is only one other thing you need to remember when looking at the failure of Wall Street that led to the GFC – there is one born every minute.  Most people lose their brains if you wave enough dollars in front of their face.  And Wall Street lives off feeding that greed and stupidity.

You need only to see that greed and a kind of moral emptiness drove these deals at both ends – those selling the mortgages or bonds got paid too much; those taking them paid too much for what they thought was cheap money.  At both ends, people were getting money that they had not earned.  The people we feel sorry for are those at the bottom who were conned into transactions they could not afford.  People should be jailed for inflicting this kind of misery.  It is daylight robbery.

How did it all work at the top end?  The big hitters see every deal – or ‘trade’ – as a gamble or bet.  Most people buy shares or bonds in the belief and hope that they will go up in value.  This is called going long.  But what if you think that a security – say, a share, bond, or even mortgage – will go down in value?  How do you profit on that movement if it happens?  What ‘trade’ can you do to give effect to the bet you want to make?  One way is to enter into a deal where you sell a security before you buy it.  If you agree to sell now at a current market price of $X on the basis that you will deliver in the future, and when that time comes the market price has dropped or crashed to $X-Y, you win – you trouser the $Y.

This is called going short, or short selling, or simply ‘shorting’.  Hence the title of the book and film.  The practice is legal and some say useful in serving to keep market values real.  Slater & Gordon may have a different view – their shares have been shorted by dealers who talk the stock down to fulfil their own prophecies and trades.  People tend to go long in a rising or bull market and short in a falling or bear market.

And if you have won your bet, someone has lost theirs.  And if they take a big enough hit, they might fail and go out of business.  If this happens to a lot of them, the whole economy might be threatened.  A bet against a number of banks if they are big enough may be a bet against the economy of the United States – if not the world.  And although any investment is a kind of gamble, shorting is not for mum and dad.  If the bet of the short comes off, the other party takes a real loss – and not just a foregone possible profit if they have sold before a price rise.  But if the bet fails, and the price goes up, the capacity for loss for the short seller may be unlimited.

That is all you need to know when you go to see The Big Short.  And the world owes Michael Lewis a great debt for the books that he has written about Wall Street.  He has on a number of occasions now lifted the lid clean off a stinking cesspit.  He has now got the status of Bob Woodward – people listen to him, and you choose not to speak to him at your own risk.  I read the book with a lot of interest, but at times it lost me.  This film never did.  I think it is a brilliant film that should be seen by anyone who has any interest in the fragile way our moral world is structured.

The main charm of the film is that although it deals with an industry run for the most part by outright crooks, the people in it have an interest if not a charm of their own.  The most important part of the film is that the idea of the big short was put in place by a man who did what no one else bothered to do.  He actually looked at the mortgages and the properties that they secured, and the lenders who took the mortgages, and concluded that they had to fail.  This man looked hard at the security and saw it that it was bad.  A dealer in securities actually looked at the securities!  The loans were doomed to fail.  This dealer could therefore bet against them and the deals done on top of them.  This man is a cranky but brilliant former doctor.  He lives with music blaring in his earphones and playing the drums.  There are people out there like this who are quite brilliant in their own way, but who are utterly unable to carry on a decent conversation.

So, he is the man who first discovers that the house of cards may come down.  By accident, this information falls into the hands of a real Wall Streeter who unusually has a social conscience, and who wants to stick it right up the big banks on Wall Street, even though his little hedge fund his effectively owned by one of them.  He is the man who worried his rabbi by finding inconsistencies in the word of God when he was a boy.  (His mother asked the rabbi whether he had found any.)  We first see him coming late into a group therapy session and hijacking it and then bitterly resenting the suggestion that he has done so.  He is a wonderful character that is beautifully developed and played.  He, rather than the mad doctor, is the man at the heart of the film.  (My recollection is that the man in the book is not likeable at all.)

The other two main characters are young whiz kids starting a business out of a garage.  There is a hilarious scene where they go to one of the big banks to try to get some ticket that will have them ‘to sit at the table’ as they say, and they get wiped off like a dirty bum.  The kids get a disaffected dealer to get them in and out of the big market.  These three bring a sense of fun and innocence – at least they are sane.

And so it all goes on, and it all comes to pass, and the balloon goes up, and the banks go down.  And we, the public, bail them out, and cop the bill.

It is a very, very funny movie and you worry for a while that you are laughing at events that will lead to untold human misery.  But the film deals with this in a way that works dramatically.  The human element is there, and so is the fact that the crooks have just walked away.  The film said that one person went to jail.  I cannot recall that, but what the film makes crystal clear is that the US should have had to set up a penal colony to deal with all of those shysters who robbed ordinary people.

There are two levels of robbery revealed in in the film.  One is those at the higher level of the banks who just rip off anyone in sight, including the bank’s own customers, and its own shareholders.  The other is the people down the bottom who are defrauding members of the public who blindly sign their life away.  There is a hideous scene where mortgage brokers are boasting about the way that they clip migrants and people of colour.  The hedge fund manager who is the hero interrupts the discussion to take his colleagues outside and ask them why these idiots are confessing.  The answer is they are not confessing – they are bragging.

And the film gives it to the ratings agencies with both barrels.  Standard & Poore are represented by a woman who looks blind.  She is – but not physically.  This is brilliant theatre.  These bastards – and that is the polite term – gave glowing endorsements to liars and thieves who paid them to do so.  It is a very sad comment on American justice that these crooks have not been brought to justice – even in civil actions.

The central message of the book was that those driving this world-threatening farce were utterly amoral.  They could not spell the word ‘conscience’, and we have no reason to believe that anything has changed.  Clever crooks still skin greedy idiots.  They are not just too big to fail – they are too big to be reined in.  Their corruption now looks endemic, just as violence in the US is rooted in the gun laws and their way of life.  There will be more regulation, but this just makes the dealers more careful and soulless – liked doped cyclists.  You cannot, after all, legislate away greed and inanity.

Inequality will be the issue of our time – inequality in income and wealth, and in the justice system.  These shysters keep getting away with it at both ends, and history suggests that the victims will eventually erupt unless there is a real change.

The film has what may be called an ensemble cast including Ryan Gosling, Christian Bale, Steve Carrell, and Brad Pitt.  It was written and directed by Adam McKay.  They all show complete assurance.  One character is like a Greek chorus who offers asides to the audience – that I think is a mark of this film as high theatre.

This is a very important story and I find it very hard to imagine it being better told.  It is also I think a tribute to the U S that they can tell such a dark story so well and so frankly.  God only knows that the U S can deal with some tribute just now.

Movies – Suffragette – And a little history

Our morals tend to get plastic when we talk of politics.  Take the following.  Politically driven people want to change the world.  They want to have more say in how things are done and to right injustices.  They are passionate but they are getting nowhere.  They get hardened, and they turn to violence.  The reaction of the law hardens them more, and former unbelievers are inducted, indoctrinated, and ‘radicalised’.  (Are you with me?)  They leave or are cast out of their own homes.  Their own families feel betrayed, but this rejection just drives the militants on further.  They become outlaws and utterly case hardened.  They have crossed over to the other side.  They adore their leader and they do whatever they are told.  Their righteousness acknowledges no legal or moral boundary.  Zealotry and fanaticism leads inevitably to terrorism that repels all but the hard core.  The logical conclusion is self-immolation, suicide, in the most effective way possible – before the eyes of the world.  For the cause – live on film.

A Muslem ‘terrorist’?  Perhaps.  A suffragette?  Emphatically, according to this film.

There are related risks with a political film.  It may become holier than thou, and the white hats may be whiter than white, and the black hats blacker than black, and you may be left with a tawdry melodrama that is bad history and worse theatre.

Although others whose views I respect hold a different view, that is what I got with the film Suffragette.  The men are almost laughably bad, and the women are all glorious but boring martyrs.  The predictability ends by leaving you flat, and the people who made this film have not learned that since the dramas of ancient Greece, the best theatre, excepting Ibsen, has been relieved by humour.

Does devotion to a political cause ever justify you in walking out on your own family?  The question is hardly asked in this film – and some twerp thought that it would be a good idea to have Anglo-Saxon male tyranny led by a red-bearded Irishman played by a throwback to James Robertson Justice.

I had a go at the story of English women in those times in a little book called The English Difference?  The tablets of their laws.  Some extracts are below.  The real story is in my view far more uplifting.

There will be more on Essendon and the law shortly – a statement of the case for a public inquiry.

WOMEN (1905 – 2011)

Patriotism is not enough. (Edith Cavell)

In a war-time speech that you do not hear so much now, Churchill spoke of the need to deal with class and snobbery in England.  [The fate of Churchill after World War II.]

There is a famous photo of Lloyd George and Winston Churchill on their way to delivering the People’s Budget on 29 April 1909.  Lloyd George is obviously the older (by about twelve years).  Both men are in pinstriped trousers, frock-coat, waistcoat and watch-chain, wing collar, a bow tie or necktie, and top hat.  Lloyd George is carrying a furled brolly and the red despatch box.  Churchill is carrying a cane and folded gloves.  To our left, Margaret Lloyd George looks wary. (What woman married to Lloyd George would not look wary?)  To our right, a tall and desperately humble functionary is wearing gloves and carrying a brolly and another despatch box.  Behind them is a double-decker bus carrying a sign for Tatcho and Dewars, and a man with a boater and a moustache.

Lloyd George is looking at the camera, unflinchingly; Churchill is looking both determinedly and devoutly at his leader, as if seeking some sort of assurance.  It is of course a still photo, but you can still sense the rhythm and purpose of their stride.  Here are two men on a mission, two men who do not mind a fight – on the contrary, their opponents, both in Britain and in Germany, would from time to time lament that they would rather have had a fight than a feed.

These two, very much an odd couple of the sorcerer and his apprentice, were on their way to take from the rich to give to the poor.  They were intent on developing ‘real change’ in a way and to an extent that the President of the United States and the American nation itself could never even dream of.  And for that purpose they were giving battle – you might as well say that they had gone to war – with the British ruling class in a way that Karl Marx and his disciples could never have dreamed of.  These two fighting men – these two British samurai – were largely responsible for winning that battle or war, and in so doing they led the reshaping of British society and its constitution. We may not see such peace-time leadership again.

Lloyd George was a Welshman, the protégé of a cobbler, a defender of the Welsh church, and a great admirer of Abraham Lincoln.  Churchill was the son of a lord and an American heiress (a popular conjunction for a fading aristocracy).  These two men of very different backgrounds joined together to forge what was in truth a social revolution.  The opposition from entrenched wealth and class was ferocious – they had to use all their political skill, and that of Asquith, their PM, to get by.  They also had to deal with two kings.

The opposition was so visceral because that vicious little Welshman appeared to be committed to something more than equality – he looked like he wanted to make the Sermon on the Mount one of the tablets of the law in England.  Lloyd George had told the Commons: ‘These problems of the sick, the infirm, of the men who cannot find a means of earning a livelihood, are problems with which it is the business of the state to deal.’  Was he quite mad?  Was he really saying that ‘it is the business of the state’ to deal with the sick and the unemployed?  Had this little Welsh lunatic forgotten what happened to the first man who said the meek shall inherit the earth?  Would that the old Duke of Wellington were here – his grace would certainly have known how to clear the stables of this sort of rabble.

Both Lloyd George and Churchill were moved by compassion – nothing more, nothing less; what Sir Lewis Namier in another context referred to as ‘plain human kindness’.  Each of them was also a consummate politician, and each was alert to the politics of what they were about.  Churchill had publicly warned that the Liberal Party had to begin to address social issues or die.  The Labour Party was coming around the bend and might soon gobble them all up. 

[Discussion of the achievements of this Liberal government.]

These were stirring and progressive times for Asquith, Lloyd George, and Churchill.  There was another hot issue on which they were stirred but not so progressive – the rights of women, especially the right to vote.  Their attitude to women reminds us of Jefferson’s attitude to slaves.  Independence was a wonderful universal good; but it was not for slaves – slaves were not in the same universe.  A universal franchise was a wonderful universal good: but it was not for women; women were not in the same universe.  Some poor men were coming to terms with the view that they had descended from the apes – now a lunatic fringe was saying that men were no different to women.  Where will it all end?  In the trenches, perhaps.

The agitators came to be called suffragettes.  One group started with John Stuart Mill.  Of them, the French historian Elie Halevy said: ‘…its members abandoned themselves to the pleasure which English people enjoy so keenly of founding groups, gathering recruits – they began to come in large numbers – drawing up rules, electing presidents, secretaries, and treasurers, and organizing public meetings in the customary style.’  The other group was more militant.  Its leader was Mrs Emily Pankhurst.  They would use the word ‘militant’ in the titles of their memoirs.  They were long on what cricketers call sledging to sabotage public meetings.  Two of them wrecked a meeting addressed by Sir Edward Grey.  They went to jail rather than pay the fine.  The movement had martyrs.  There is a photo of two others in a carriage on their release – they had garlands in their hair.  They marched in great concourses, mixing with the unemployed.  They especially targeted Grey and Lloyd George.  When jailed, they went on hunger strike, and by violence made force feeding impossible.  They were evicted from the Commons, but then men took their place.  On Derby Day 1913, Miss Davidson committed suicide by throwing herself on the track.  They put bombs in letter-boxes, and they burned down churches.

How did Monsieur Halevy relate to all his when writing in 1952?  ‘The suffragettes exploited the weakness of their sex, its proneness to hysteria.’  It was not all violence.  There was a political movement.  One group broke with the Liberals to support the Labour Party.  The leaders of that party were not wild with enthusiasm about the idea, but the women had real money, and money talks.  Then Mrs Pankhurst got nine years’ jail, but what good would that do in the face of fanatics intent on martyrdom and bombing?  Should the Establishment follow the example of Napoleon and the Tsars and answer fire with fire?

Then a much, much more earthy but powerful force intervened that made all this internal conflict and excitement look both irrelevant and tawdry.  We recall from our discussion of the Anglo-Saxon levee of arms, of the law not simply allowing arms to be borne but requiring their men to carry arms, that such a law promotes a kind of equality.  If the state depends on you to protect and sustain it, then your standing in the state is so much surer.  Even the feudal relation went both ways – the vassal gave service, but the lord had to protect the vassal; if the lord did not discharge his obligation, the vassal was freed from his obedience.  If you fight for someone, you expect them to look after you.

At 6 am at Brussels on 12 October 1915, a German firing party assembled for that purpose executed by firing squad an English nurse named Edith Cavell.  Edith was forty-nine, the daughter of a vicar at a village near Norwich.  She had been practising her profession in Belgium before the war broke out.  Then she was engaged in saving the lives of both British and German soldiers.  She had also spied, but she was tried before a German military court for helping about 200 British soldiers to escape.  She had therefore been aiding the enemy.  She freely admitted what she had done.  The verdict and sentence were open to the German military court, but the latter was a frightful military mistake. 

The night before she died, Edith Cavell took Holy Communion with an Anglican priest.  She told him that ‘patriotism is not enough.’  Those four words should be enrolled on every military school, mess, and court in the land; they are on her memorial at Trafalgar Square, and for them alone Edith Cavell should be remembered.  The next morning she told a German Lutheran chaplain that ‘I am glad to die for my country.’  The German laws under which she was executed did not discriminate between men and women; neither did the English laws; laws against treason or military laws rarely do.  It is not recorded that the condemned prisoner showed any of the suggested weakness of her sex, ‘its proneness to hysteria,’ in the time leading up to her being shot for what she had done for her country.

Now, here you had a hero, a real hero, the kind of hero that a nation can sustain its faith on.  It was open to the Germans to say to Edith Cavell that if it was good enough for you to aid our enemy then it is good enough for you to be executed under the laws of war.  So could the women of England say to their government that if it is good enough for us to die to see that the country is run properly, it is good enough for us to vote to see that the country is run properly.  That argument is unanswerable; it was unanswerable even by those inbred fops out of Eton who had been sheltered from girls by mummy and daddy, but to whom exclusion came naturally, and who believed that old fairy tale about the battle of Waterloo being won on the playing fields of Eton. 

When they voted against these reforms, had Asquith, Lloyd George and Churchill forgotten that their longest serving monarch, before whom all mere Prime Ministers had kow-towed, was a woman; that the monarch who defeated the Spanish Armada, and who had put on a uniform before addressing her troops at Tilbury, was a woman; and that the mother of God was, of necessity, a woman?

These World Wars fell to be won or lost in the great armaments factories at home, and in the great arsenal of the United States.  And those fields of war were mainly staffed by women.  By the end of the First World War, there were nearly five million women in the workforce, and many of them were engaged in armaments and munitions.  You cannot deny the vote to those you depend on to win your wars.

There is another point.  This was not the time for the ruling classes of Europe to be saying ‘Leave well enough alone.  Leave it to us.’  The rulers of Europe behaved appallingly to get Europe into war, and then they behaved even worse in allowing inept officer classes to lead millions upon millions of poor workers to useless death in the mud of the Western Front.  The Kaiser and the Tsar – both deriving from Caesar – were deposed forever, but many of the men at the front thought that in an orderly world the entire officer corps – or at least the entire general staff – should have had to face the penalty faced by Edith Cavell for a war crime constituted by sending men to their death when there was no reasonable prospect of their being able to obtain a tactical or strategic objective.  It is very hard to believe that people like Haig behaved as they did while believing that the men that they were killing were as valuable as those men at the top.

The move to equality therefore was bottom up and top down.  The men and women at the bottom believed that they were worth more, and that those at the top were worse than useless.  Women had to get the vote.  They did in 1918, although then only those who had made it to thirty were trusted.  The battle was in substance over.  But some would not be able to break free of caste.  When the first woman MP took her place in the House, Winston Churchill could not bring himself to acknowledge the presence of this infidel in his temple – although he had broken bread with her in her own house.

 [A discussion of the role of ‘terror’ in war and a war-time judgment on due process and civil liberties.]

England had to wait more than half a century to see the vote for women being translated into a woman as Prime Minister.  Her name was Margaret Thatcher, and she aroused strong feelings back then.  She arouses even stronger feelings now – and not just in England, but in the colonies.  We will therefore completely ignore her politics.  Why are we looking at her at all in a book about the constitution?  Because the fact that Margaret Thatcher became PM about sixty years after Winston Churchill could not acknowledge a lady friend in the House of Commons says something about the tolerance and capacity of the English to adapt to change and to accept diversity.

Three things about the Iron Lady.  First, to get where she did, she had to get past those who were still the prisoners of their shibboleths about sex, many of the ilk of Monsieur Halevy.  But more than that, she had to confront and overcome the most appalling snobbery.  ‘In the name of Heaven, my dear boy, her father was an alderman – an alderman! – at Grantham – at Grantham! – and she – yes, SHE – stood behind the counter at a shop! Not even trade, Old Boy!  Retail.  Bloody retail, Old Boy.   Not at this club!  If she gets in, she will prove Napoleon right – a nation of bloody shopkeepers.’ 

Secondly, before she was elected, Mrs Thatcher said what she would do.  She had a policy and it was different to that of anyone else.  She was not afraid to adopt a position and then stick to it.  We do not see politicians like that now.  They cower behind minders and opinion polls and the dregs of the press.

Finally, when she became PM, Mrs Thatcher was not going to take any nonsense from any of those boys in either party who had not supported her, or who had let England down – and there were not many boys that were in neither category.  They were lined up on shelves like laced up poodles so that she could from time to time wipe the floor with them.  If the world knew a stronger political leader at that time, it was a very well-kept secret.  Perhaps that is why she still makes so many people generally, and men in particular, anxious.  The only PM since to try to take a position has been sullied by Napoleonic ambitions in the Middle East evidenced by decisions to go to war based on false premises and not even referred to Cabinet –and a Napoleonic refusal to apologize to the nation.

Well, it took time to produce a Mrs Thatcher, but she certainly gave them something to talk about.  The Latin countries have not made it yet.  They are the ones bringing Europe down because they cannot balance their books.  Might there be a causal connection between the inability of France, Italy, Spain and Greece to elect a woman leader, and their inability to run their own economies?  How strong is the economy of the nation being run by Frau Merkel?

Finally, for more than 1000 years, the great stain on England’s record was Ireland.  The history is too long and too painful to recount.  In 2011, Her Majesty Queen Elizabeth II visited Ireland, the first English monarch to visit the Irish Republic.  A descendant of a people that had come over the water from Saxon forests, this singular queen is descended from another German line from around Hanover.  She was visiting a land of Celtic people with their own royal line.  The visit was an unqualified success.  The Irish President, also a woman, palpably gasped when the queen began a major speech in Irish in one of those parts of the program broadcast live on TV to a breathless Irish diaspora around the world.  There is good reason to believe that the peace will now hold, and that both nations can move on.  This was an affecting instance of the way that the English crown still holds an essential working place in the English constitution whose story we have tried to trace.