Some migrants get on better than others


Last night, our time, Angela Merkel told her parliament that there would be no talking with Britain – perhaps I should say England – until they had given notice they were leaving, and that they would not be able to have access to the single market without subscribing to the rules, including those on immigration.  It was, as we have come to expect, a calm, measured speech from the German Chancellor.  It was frequently interrupted by applause, especially when she said that the Brits could not have their cake and eat it.  After the dinner, later, David Cameron accepted that obvious truth, but he said that what to do about it was a matter for his successor.

Many have the distinct impression that Boris had been saying the opposite – that if Britain left the E U, it could enjoy the benefits of the single market and retain control – sovereignty! – over immigration.

Nigel Farage addressed the European parliament.  Why was he even there?  So he could leer, jeer, and sneer, like the pig that he is, for the benefit of his uncomely followers.  How he thought that his inane vulgarity might be good for Britain is beyond us.  He was followed immediately by a populist of the same stamp – Marine Le Pen.  Has England ever stood lower in Europe?

Have English politicians ever stood lower in England?  Boris doesn’t have a plan – but he got where he is by a lie.  Corbyn is as selfish and unprincipled as he is inept, and he now looks intent on breaking up the party that he failed.  Farage is unspeakable.   The Liberal Democrats might make a comeback.  The one English leader who has behaved decently is standing down.  The English are facing a choice between the vision, such as it is, of Boris, that involves an untruth, and that of Farage, that was directed straight at our lesser angels.

The one bright spot was a very engaging younger Tory minister named Jeremy Hunt who said that he was thinking of standing for the leadership on the footing that no final decision would be made without an election or referendum.  Boris has let it be known that he is against that idea.  Well, if the choice that England ultimately faces is one between the best terms of trade, or control of immigration, the end result either way may be one that a substantial majority of the nation opposes.  Even by the standards of Boris, you would need a curious idea of democracy of the people or sovereignty of the nation to countenance that result – arrived at by the choice of a government led by one out of the two put forward by one party.  And if that one person is Boris, we can all have a good belly laugh at the needs and aspirations of the common people of England being better served by one product of Eton and Oxford than another.

This will be the final note on this for now, but I may add that the English felt more pain and outrage elsewhere.  They were thrashed by Iceland in soccer.  Why?  Because they have let in too many migrants into their Premier League.  You don’t see too many native English playing in that League – you see even fewer native managers.  The English coach who resigned gets paid millions.  The Icelandic coach is a part-time dentist.  Well, well, well – some migrants get on better than others.

A Scots lady among English headless chooks


When the Australian colonies decided to federate, they wanted their constitution to outlaw protectionism between the federated states.  They used words that were simple and grand.  Interstate trade was to be ‘absolutely free’.  But that simple provision baffled the best legal minds in the world for the best part of a century.  Free from what?  And assuming that you can work with the word ‘free’, how could you ensure that it was ‘absolute’.  Does this mean that if I shoot and kill a competitor while crossing the border while plying my trade that I cannot be prosecuted for murder?

But the first problem was that the proposed solution masked a question.  You can see a similar problem in the U K referendum.  The people were asked if they wanted to leave the E U.  They said yes.  But on what terms?  The proposed solution masked another question.  And the question then becomes who will provide the answer to that question?  On whose instructions?  On what criteria?

If you want to go into business with someone, you investigate them and negotiate with them and then you make a commercial decision.  That comes only when you are ready to make up your mind.  If you go into business, and then want to terminate it, you negotiate and see if you can agree the terms.  This will be more difficult if the relationship has broken down.  If you cannot reach agreement, the courts are not good with this kind of breakdown.

As I follow the E U, if someone wants out, they give notice.  They then have two years to come to terms.  If they don’t in that time, the relationship simply ends without more.  If that is right, and you want out, you don’t give the notice until you have a good idea of what you might negotiate and that either that prospect or no agreement at all is better for you than staying in.

If all that is right, you can see the fearful mess the English have got themselves in.  There are irreconcilable differences in the leave group. The government is at best in caretaker mode.  The opposition is dissolving as we speak; their MPs did not vote their leader into his office, and he lacks respect.  Most current MPs are against leaving.  One political party says it will fight the next election on staying in.

The first problem is the worst.   The soft-liners want their sovereignty back and to stay in the single market.  The problem then is that this conflicts with the hardliners who resist the free movement of people required by the single market – and it was immigration that the hard-liners pushed in the campaign, and in the vilest manner possible.  If that is right, the hardliners or the soft-liners will have to give up something of value – in which case the final decision to leave may be made on grounds opposed by most of the nation.

Ordinarily, after an election, the winner goes ahead to implement their program.  Here we have no program.  We don’t even have a winner.  The most polite term you could apply to Farage, Johnson, and Gove is that they have been disingenuous.  They were not frank with their supporters.  It is appalling that they have left their country in this mess.  How is the incoming government, before and after the election, supposed to deal with this?  Their first task will not be to ask the second question, but to frame it.  Either way, the ultimate and most important question on any exit will have to be taken by someone.  A second referendum is not out of the question.

Meanwhile a woman in Scotland is giving her nation real leadership that puts those English boys to shame.  God help them when they come up against that woman in Germany.

Passing Bull 48 – Slippery radicals


The word ‘radical’ is slippery.  Donald Trump, and people of comparable intellect in the Australian press, get upset when President Obama does not use the term ‘radical Islam’ in referring to people who are alleged to be Islamic terrorists.  What does the word ‘radical’ mean?  If you look at the Oxford English Dictionary, you won’t get much help.  In our context, the word means something like ‘extreme’ – far from the centre, or the end of the line.

We therefore get questions of degree.  Was Jesus of Nazareth a radical Jew?  Was Emperor Augustus a radical Roman?  Was Galileo a radical catholic?  Was Beethoven a radical composer?  Was Chairman Mao a radical Communist?  Was Nelson Mandela a radical terrorist?

You can get an idea just how slippery the word ‘radical’ is from Churchill’s account of the start of the American Revolution.  It began with what is still the American bête noire – tax.  The Stamp Act really upset the colonists.  It included a tax on newspapers ‘many of whose journalists were vehement partisans of the extremist party.’  Future ‘revolutionary leaders appeared from obscurity.’  ‘A small but well organised Radical element began to emerge.’  When cargoes of tea that would be subject to the tax arrived at Boston, the ‘Radicals, who began to call themselves Patriots, seized their opportunity to force a crisis.’  They dressed up as Red Indians and cast the tea upon the waters.  By the time that Paul Revere had written to Lexington, the radicals were being addressed as ‘rebels’.

Were the Tea Party participants ‘terrorists’?  They used extreme violence for political reasons, but no one was killed in this incident.  Is that enough to make them terrorists?  John Adams, the second President of the United States, said ‘that I cannot but consider it as an epoch in history.  This however is but an attack upon property.  Another similar exertion of popular power may produce the destruction of lives.  Many persons wish that as many dead carcasses were floating in the harbour as there are chests of tea.  A much less number of lives however would remove the causes of all our calamities.’  Well, John Adams was ready to embrace terrorism, and there followed acts of terrorism, and appalling terrorism, on both sides, as happened with the birth of the state of Israel.

The Boston Tea Party led Dr Johnson to say that ‘Patriotism is the last refuge of the scoundrel.’  The members of the Tea Party now see themselves as extreme patriots, just as Eichmann thought that he was merely doing his patriotic duty.  ‘Patriot’ is even more slippery than ‘radical’.  E M Forster is fondly remembered for the reflection: ‘If I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country.’

Poet of the month: Anna Akhmatova

Requiem: 9


Already madness trails its wing

Decisively across my mind:

I drink its fiery wine and sink

Into the valley of the blind.


I yield to it the victory:

There is no time, there is no room

Except to sue for peace with my

However strange – delirium.


I fall upon my knees, I pray

For mercy.  It makes no concession.

Clearly I must take away

With me not one of my possessions –


Not the stone face, hollow blanks

Of eyes, my son’s, through pain’s exquisite

Chisel; not the dead’s closed ranks

In the hour of prison visits;


Not the deer coolness of his hands;

Nor, dimmed in distance’s elision,

Like lime-trees’ shady turbulence,

His parting words of consolation.

The choice of the people


Rising footballers used to tell a gag about a young man on his first date with Raquel Welch – he felt that something wonderful might happen but he was not sure how.

That is how those in Britain who want leave the EU feel.  What do they do now?  They don’t know.  Who are they then?  There are at least three strands.  Boris Johnson is in it for Boris.  Nigel Farage doesn’t like foreigners.  Michael Gove has a Victorian notion of sovereignty, but he has participated in a campaign that was vile.  He is about to learn that when you lie down with dogs, you get up with fleas.

So, we have seen another rebellion – revolt if you like – against what are called the elites or the political establishment.  The resemblances between Boris and Donald are nauseating.  Who are the rebels?  They are obviously the people who respond to politicians like Trump, Farage, and Johnson, what we call populists.  In England you can do it geographically – they are mainly people who live outside London, Oxford, and Cambridge, and do so with a chip on their shoulder of Defarge proportions.  They are people who are not as well off as those in the elite, who tend to be cosmopolitan.  That group includes most MPs and members of the Conservative Party.  They are the ones rebelled against.  If you sought to apply a label to them, you would be denounced as a snob.

So, as a result of these rebellions against the elite, we now face the prospect of nations being governed by people who were elected by people who reject the system.  The two most stable democracies in the world could be led by peoples’ choices like Donald and Boris.  Each of those might just be the most loathed person of his time in his nation.  If you want to see just how low we can seek with the people’s choice, listen to the speech of Jeremy Corbyn the other night.  It was murderously inept.  He may have been addressing a branch of the coal miners’ union in 1926.

Yes, the elites and pros at Brussels and Washington get up our noses, but who believes that Trump, Corbyn, or Johnson will do a better job?  And the legal mire will be worse for a generation as the lawyers arrive at a decades long Christmas.

And the British, who should know better, fell for this American claptrap about voting not being compulsory.  Two essential pillars of our way of life are voting in elections and serving on juries.  It is downright silly to suggest that either might be voluntary.  Was this step taken at the behest of 36% of the people?

Then, having annoyed Europe with tantrums and sulks for a decade, the Poms who want to leave say that they are not yet ready to come to the table for that purpose.  This whole issue comes from a spat among Tories, and now Europe is told it must wait until the Tories change train drivers.  And then there might have to be an election.  What happens if the new government is against leaving?  Why can’t Europe make an offer now that will go down with every day of the delay induced by those who want to leave but don’t know how?  As it, the choice of new leader, and government, will be heavily influenced by the position of Europe.  That European influence on England is as certain as the English Channel, and the English may well notice it more outside the tent than in.

Well, if people think that this is democracy in action, they have a quaint idea of proportion, and the patient may be nearer to death than we thought.  And charmers like Le Pen, Wilders, and Putin cannot believe their luck.

Finally, as someone having some Scots blood, may I say that while I was against their leaving in 2014, I would now wish they left.  My faith in Britain has fallen, and if they elect that jerk Boris as their leader, I will give up.  Doubtless the nationalists who treasure national sovereignty will greet the departure of Scotland with palm fronds and loud hosannas – just as they are doing with the hoped for disintegration of Europe.

As the French discovered after 1789, when you have rebellion against the system that puts the people in charge, the results can be very ugly and enduring.

The CFA and MFB – they sacked the wrong board


The MFB has failed to maintain discipline under the terms of its act.  The board of the CFA refused to do something against the law.  The people who refused to disobey the law get fired, and the people who refused to carry out their law stay in place.  And the unlawful authority is given more power over the lawful authority.

The difference in character between the two authorities is fundamental.  It is recognised in the CFA act.

The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.

The ratio of volunteers to paid firefighters in the CFA is about fifty to one.  It is hard to imagine anyone less like a volunteer than a member of the MFB.  Almost every single thing they do is regulated and rewarded.  The government simply insults our intelligence by denying that it has trashed this statutory precept.  It has directly insulted the whole voluntary basis of the CFA and it knows it.  What Faustian pact has driven it to disregard its own laws?  The Premier found himself in a position of conflict – loyalty to a cabinet colleague and an electoral interest in not offending a union patron.  Guess which one had to take the fall – and a woman to boot.

Even the government’s own reporter could see the differences:

Despite being similar services, CFA and MFB have very different cultures which are strongly entrenched in their organisations. CFA brigades are created from their communities and often become the fabric of their communities, particularly in rural areas. CFA volunteers may wear a number of hats in their local area and be leaders on a range of issues. Though part of the organisation, CFA brigades also have a sense of independence and autonomy. This can sometimes create tension with the organisation. MFB firefighters join the organisation. They are assigned to a particular station, which may not be in the community where they live, and form very strong connections with their brigade and platoon. They have a fierce commitment to protecting the communities they serve but are generally not “of” the community in the same way as CFA brigades. These differences in culture can result in very different approaches to community engagement.

It is clear to me from talking to people in the country that they are troubled by the MFB’s patent hostility to women.  Things have changed.  Rural people think that the MFB is about a century behind them.  And guess what happens when management works up the courage to move a millimetre.  Off the men go to their protectors in the Fair Work Commission.  And this state government supports this old narrow world.  Never let this government say that it supports women’s rights – until women are 50% of both authorities.  (We here at Malmsbury have about 30% women – the work of Antichrist to the men of the City.)

Finally, could anyone at the Harvard School of Business devise a more perfect model for wrecking management than that propounded by the Fair Work Commission and the Premier of Victoria?

If you want to see the havoc that can be created when a federal body and a state government get involved in the administration a state statutory tribunal, look at the decision that follows.  (Some names have been changed.)  A copy of the original decision has been with relevant state and federal ministers for some time now.


  1. This case could, I think, have been disposed of in an hour or two on the day it first came on for hearing. Instead, it has gone clean off the rails, and I fear that it may be costing the people of Victoria a great deal of money.
  2. Commander John Smith has been charged with disciplinary offences under the MFB Act. The offences are alleged to have occurred between December 2012 and September 2014.  They involve allegations that Mr Smith used his computer at work to send, receive or store emails that were pornographic, offensive, obscene, racist and sexist.  That conduct is alleged to be in breach of the MFB Workplace Behaviour Policy and the Victorian Public Sector Code of Conduct.  These allegations founded charges of misconduct in the use of MFB property for an inappropriate purpose (s 78A (b) of the act) and disgraceful or improper conduct (s 78A(e) of the act).
  3. On 26 September 2014, more than six months ago, the charging officer gave substantial written details of the allegations to Mr Smith. A record of interview was made by the charging officer on 1 October 2014.  Mr Smith was assisted by Commander Johnson who I was told has a law degree and who took an active part in the interview.  Mr Johnson had told the charging officer that Mr Smith was not a member of the UFU and had no other access to advice, so that he, Mr Johnson, had agreed to assist him.  During the interview, Mr Smith was not inclined to concede that he had breached any relevant obligation.  He did say that if he passed material on, neither he nor the recipient thought that the material was offensive.  He later said that those people were prepared to make statements to that effect.
  4. But Mr Smith replied in detail to the allegations in a letter to the charging officer dated 17 October 2014.  In it, Mr Smith said:

As a person and MFB employee, I apologise unreservedly for having breached the MFB Workplace Behaviour Policy relative to offensive material.  It clearly was not my intent to do so and as such I don’t believe I have consciously committed any of the offences detailed in your letter.  I am, to say the very least, extremely embarrassed that this has occurred; not least because it was never my intention to contravene Brigade policy.  On reflection, it is entirely appropriate and necessary that the MFB review these matters as serious when brought to their attention.  It is also relevant to understand that these events did not occur in the public domain and did not offend any of the recipients.

Given that concession, you might wonder what all the fuss has been about.

  1. Mr Smith was advised on 10 December 2014 that charges were being prepared. They were conveyed by mail on 22 January of this year, and the date and place of hearing were conveyed and confirmed separately.  On 16 March, I copied the union (the UFU) with an email request to the MFB for me to see a copy of the charges, and one of the three folders of the material complained of.  Later I asked the MFB to find out who Mr Smith might turn up to the hearing with.  ‘It may not be a good idea to do so alone.’
  2. The charges were brought on for hearing in the William Cooper Justice Centre on 30 March 2015. Ms Kathy Dowsett instructed by Thomson Geer appeared for the MFB.  Mr Smith did not appear and there was no reason given for his absence.  I was satisfied that he had been notified of the time and place of the hearing, and I indicated to counsel for the MFB that I would proceed with the hearing in his absence.   I think that I commented that he had a right of appeal which would involve a rehearing.  In the course of the morning, I was told that Mr Smith was not appearing because he had been on night shift.  At one stage I counted six lawyers in the hearing room apart from me.  Later I was asked to adjourn the hearing to the next day to allow Mr Smith to appear.
  3. I was reluctant to take this course because the charges were in my view serious. They raise issues that should be dealt with properly and promptly under the relevant law regulating this Brigade in the public interest.  As I have said, Mr Smith acknowledges that ‘it is entirely appropriate and necessary that the MFB review these matters as serious when brought to their attention’The evidence disclosed that Mr Smith had no computer of his own, and that he had used the MFB computer for private purposes, including receiving group communications in the material that the MFB complains of.  The evidence also suggested that Mr Smith and Mr Johnson, both being commanders, had had some difficulty in coming to terms with the issues raised.
  4. The hearing resumed on Tuesday 31 March. Mr Smith did not appear again (although I thought I had seen him outside barristers’ chambers on my way to the court room).  I was handed two lots of correspondence.  One was from Davies Lawyers threatening Supreme Court proceedings and saying that consideration would be given to seeking counsel’s advice on a damages claim against the MFB and ‘the individual purporting to hear the matter.’  The other was correspondence with the union relating to a proposed hearing at the Fair Work Commission.  Legal action of one kind or another was threatened or commenced in different state and federal jurisdictions.  I said to counsel words to the effect that unless there was an injunction, I thought that I should proceed with the hearing.  I was however told that the MFB agreed to the hearing being adjourned again.  I wanted any adjournment to be as short as practicable, but I was persuaded to adjourn it for some weeks.
  5. The rehearing then had to be rescheduled on two other occasions because of issues like room availability or the work schedule of Mr Smith. The matter is presently part heard and listed for hearing on Wednesday 13 May at the County Court at 10.15 am.
  6. On 21 April, the solicitors for Mr Smith gave notice that they would ask me to disqualify myself on the basis of apprehended bias on the grounds stated in the letter. (The letter also referred to an application before the Fair Work Commission relating to ‘the proper forum for the determination of disciplinary proceedings brought against Commander Smith.’)  They asked for their application to be dealt with as a preliminary hearing on 6 May or 7 May.  On 23 April, Thompson Geer responded that any such application should be made at the hearing on the scheduled date.  After correspondence, I agreed to hear the application as matter of urgency on Wednesday 6 May at 8am so as to hold the hearing date of 13 May.
  7. The hearing was scheduled at a time that would allow the lawyers for Mr Smith to apply to the Supreme Court for an injunction if they lost in their application. I suggested to the MFB that they might have an appropriate retired judge on stand-by.
  8. Mr David Grace QC appeared on the bias application for Mr Smith and Ms Dowsett for the Brigade. The matter was very capably and sensibly presented by each counsel, and I am most grateful to each of them.  It was dealt with in less than an hour.  Mr Smith was not present again, but a union official was.  I counted nine lawyers in Court Room 1 of the William Cooper Centre yesterday morning.
  9. Mr Grace gave me some background and he gave me his understanding of the reasons why Mr Smith was not here on either of the two prior occasions. He told me that the object of the application to the Fair Work Commission was that the subject of these proceedings ought to be determined by that Commission and not this tribunal.  When I said that that was a large claim, he referred me to s 26 of the federal act.  He told me that Mr Smith was not contesting my jurisdiction but that that issue might be raised elsewhere.
  10. Ms Dowsett told me that the MFB contested the jurisdiction of the Fair Work Commission. There are therefore serious constitutional issues and there was some discussion of referring those issues to the state and federal Attorneys-General.  I was also told that some issues in this case had been discussed up to ministerial level in the Victorian government and that Mr Smith did not appear on the second day because he had letter from the Chief of Staff of the Minister saying that the hearing would be adjourned.  As well as constitutional issues, there are therefore heavy political issues.  I was told that parts of the press were full of it.
  11. I was referred to Johnson v Johnson (2000) 201 CLR 488, 493; Re Minister for Immigration v Jia Legeng (2001) 205 CLR 507, [180] to [187]; Re Minister for Immigration, ex parte Epeabaka (2001) 206 CLR 128, [90]; Simjanoski and others v LaTrobe University [2004] VSC 180; Robb v Nixon [2005] VSC 310; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; Victoria Police v Coroners Court [2013] VSC 246, [44]; and Picos v Servcorp [2015] FCA [15]. Those cases give some guidance on applying the fundamental principle.  It is to be applied with common sense to specialist tribunals or busy ministers, and the tribunal is not to be displaced unless the case for doing so is duly made.  Some care needs to be taken when looking at preliminary comments in an ongoing hearing or remarks made with specialist knowledge.  A tribunal is not to be displaced unless the case to that effect is ‘firmly’ established.  The courts are there to protect the rights of people by due process and not to throttle the civil service or to scold politicians.  The courts should discourage that ‘gotcha’ jurisprudence pursued by litigants longer in the pocket than on the merits – and I am not saying that is the case here.
  12. Since this is an application in the nature of a preliminary hearing, although the hearing itself has already taken place over two days, I will not look at the evidence of the material complained of in any detail. I should however say something about it in order to explain why in my opinion it is vital in the public interest, and in the interests of members of the Brigade, for these charges to be heard and determined according to law without delay.  And when I refer to the law, I mean the law dealing with this Brigade.
  13. 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.
  14. 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.

  1. 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.
  2. 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?
  3. Then there was an express warning given by this tribunal about twelve years ago. One case involved a charge in 2003 against an inspector for having pornographic material on his computer.  (The name of the man was Johnson – I am told that this was the officer advising Mr Smith in this case.)  In the course of that decision, I said:

What is pornographic or obscene may be a matter of impression.  As I remarked at the hearing, on the day when the hostilities commenced in the second Gulf War, a lot of people working in the city would be going home that night to stay glued to the television watching the fruits of civilisation and technology deployed, as some would see it, in the inevitable destruction of innocent people, about as obscene an exercise as you could get.

But some of the material was on any view pornographic, and we are not really talking about pornography.  The real issue is trust.  As I said, the offences took place over a prolonged period and contrary to express instructions given and acknowledged.  The conclusion drawn by the Board is that Mr Johnson is not to be trusted in his present position and should be dismissed.

There is obviously a lot of force in this position.  Mr Johnson is at a level – that of Inspector – where he cannot, as his counsel acknowledged, say this was mere recklessness.  Mere recklessness may well be enough to get an inspector dismissed.  But I think what we are looking at are errors of judgment and the question is whether they are such that there is no alternative but for Mr Johnson to be dismissed.

Later, I said:

Then there is the need to deter others.  Let me make it clear, if it is not already clear, that any kind of abuse of computer facilities, particularly one involving pornography, is a sackable offence, and that the next person found guilty of this kind of conduct will be on express notice that dismissal is the most likely result.  I recommend that something to this effect be placed on the warnings.

Under the ordinary process of our criminal law, Mr Johnson would be entitled to consideration for pleading guilty.  You cannot discount a dismissal.  It is all or nothing.  I am not saying that anyone who pleads guilty cannot be dismissed, but where possible I would like to give recognition to people who facilitate the process.  Mr Johnson is after all the first defendant to appear in this new process.  He appeared on the first occasion in respect of charges laud recently and the matter was concluded in a little over two hours.  He has not put the MFB to a waste of time or money.

As I mentioned, the real issue is I think trust and the need to vindicate the standing of the MFB and its standards of conduct.  It can sometimes be difficult to police notions of trust in this context.  Either Mr Johnson can be trusted or he cannot.  If he cannot be trusted, he is not likely to be improved sufficiently after a holiday or suspension.

As it happens, the MFB did not get the dismissal of Mr Johnson in that case, and I am now told that the penalty imposed was reduced on appeal.

  1. None of these observations will come as surprise to the parties. They are extracted from 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.

  1. 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.  (Hunter v. McGrath, 26 February 2003.)

  1. 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.
  2. Before proceeding to the present application, I want to say something about the role of the Fair Work Commission in these proceedings given the sad failure of my prophecy that it was unlikely we would see further applications to federal industrial tribunals or courts.
  3. 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 endeavored 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.
  4. 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   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.
  5. 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.
  6. 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.)
  7. We can gain some insight into the differences in the two world views from the considered statement of Mr Smith in his letter of 17 October 2014 in which he gave his substantive reply to the allegations against him and made the concession that I have referred to above. As I said, Mr Smith contends that the matter should be conducted under Commonwealth industrial legislation rather than the act of the Victorian parliament that rules this Brigade.  That contention, which struck me as large, gets much larger when you understand how Mr Smith and his advisers apparently envisage their preferred resolution of the allegations against him.  This is how Mr Smith concluded that letter.

Having thought about this matter at considerable length, I have come to realise that the necessary change in attitudes in our workforce is not achievable purely by the publishing of a policy.  The recent release of the Workplace Behaviour online interactive training program is a very positive development which I personally found beneficial and has assisted in changing my understanding of contemporary workplace values associated with Workplace Behaviour standards.  People at my rank will be instrumental in driving the gradual cultural change that will be necessary and having now had such a direct experience, I feel I will have much to offer towards this organizational goal.  I would hope that my MFB record and achievements over the last 35 years of service would afford me some consideration relative to this occurrence and that the explanations provided are accepted to enable a mutually satisfactory resolution of this matter.

No comment is required – but what would a fair-minded observer conclude might be a ‘mutually satisfactory resolution’ except one that involved a deal that avoided any hearing under the MFB Act and in which everything was on the table except for dismissal?  If that is what an MFB Act-free zone looks like, some Victorians might be sorely troubled.

  1. The bias application before me was founded on two classes of statement made by the tribunal – statements in prior cases or in the memorandum referred to above, and statements made on the first two days of the hearing in the absence of the defendant, Mr Smith. The general nature of the remarks relied on by counsel for Mr Smith will I hope appear from my discussion of the argument.  It was common ground that the question on the authorities is whether a fair minded lay observer might reasonably apprehend that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it.  If you strip out the double negatives, would the hypothetical observer reasonably apprehend that the tribunal might be prejudiced in deciding the question before it?
  2. Although I had asked how Mr Smith would plead to the charges, I was not told. I do not know what the range of issues might be on the substantive question of whether any breach of the act has been established.  Nor was it asserted that any of the comments of the tribunal referred to was unfounded or untenable.  The logical foundation of the argument therefore tended to be at large.  I may here add that I had asked the reasons for the delay by Mr Smith in making this application, but I did not get an answer.
  3. The tribunal member takes the place of the CEO to enforce discipline under the act. In so doing, the tribunal will seek to define standards and issue warnings of the likely or possible consequences if those standards are not met.  To go back to the memorandum:

The primary function of the Tribunal is of course to enforce the law relating to discipline and to enforce and, as required, set standards.  It is part of this function for it to declare standards in the sense of saying what has to be done for standards prescribed by the law to be met.  The Tribunal has I think been of use on a couple of occasions in being able to declare what the position is in respect of standards, for example, the proper response to an alarm of fire.  In this way the Tribunal acts as a kind of audit on the processes in place.  The Tribunal itself may not be able to contribute much and it will all depend on the quality of the contributions it gets from senior officers.  It can also assist in monitoring these processes.  For example, issues have arisen in relation to counselling of members after traumatic incidents and protocols in relation to attendance at charity functions that I think received some useful examination.  Additionally, the Tribunal is in a position to lay down general guidelines in relation to the need for discipline in an emergency service which is subject to a command structure.  These are I think positive contributions that can be made by a tribunal which is seen to be independent …

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.

Because of the history of these proceedings, and the fact that they have not been invoked much of late, I have in a number of cases felt constrained to say that although these particular defendants would not get the maximum appropriate penalty, the next ones would.  It is important that people understand that I meant those observations.  As an example, and it is only an example, someone found guilty in the future of refusing to obey an order would almost certainly be facing dismissal and could on no account expect anything like the extreme leniency shown in the only case to have come up so far.

  1. In my view the general comments of the tribunal relied on by Mr Smith come within the kind of guidance that people would expect from a body like this, and certainly in a body like the MFB, where people demand chapter and verse on every aspect of their working life, and protest very loudly indeed if something happens that has not been the subject of proper advance notice, in black and white, and in triplicate. It may be the most over regulated institution on the planet.  It and the union between them may be the most litigious combination in our nation.  As I remarked, Sir Daryl Dawson told me that he did a lot of work in demarcation disputes for these litigants in the 1960’s.  There is probably a real ghastly link between the overlays of regulation, and the lawyerism that spawns litigation and is now approaching its masterpiece here with something approaching forensic mayhem.
  2. Of course, neither the CEO nor I have the power or the will to lay down the law, and of course each case has to be considered on its merits. I see no reason why any member of the public would come to a different view in this case.
  3. It is in my view apparent that the comments made during the hearing were made with the knowledge and intention that they would be brought to the notice of Mr Smith. At least one was made to get him to appear or warn him of the possible consequences if he did not do so.  The examples of the evidence that I have referred to above will be enough to reveal why some of this material cannot be sensibly discussed in antiseptic terms.  Is ‘depraved’ too strong for some of this material?  The instance of American employers is one that would have to have been disclosed, and you would have to have come from Mars if you had not noticed a recent upsurge in public interest in cases of the misuse of public property for private or improper purposes.
  4. Since all the comments were made on the footing that eventually Mr Smith would appear or at least eventually get a hearing if he wanted one, they do not look to be in a different case to the kind of discussion floated in any adversarial proceeding. Fairness requires that if something is troubling a tribunal, it should put it out there – at least since a New Zealand royal commissioner found himself in the Privy Council for saying that he had listened to an orchestrated litany of lies – and he had not warned the alleged liars.
  5. And the fact that a tribunal has reached an opinion does not entail that the tribunal will maintain that opinion in the face of the contrary case. That proposition looks sound in both logic and principle.  It is also covered by authority.  In the second case I was referred to, Justice Hayne (at [186]) referred to the observation of a 19th century English judge that preconceived opinions do not necessarily constitute bias, and that even expressing such opinions does not constitute such bias, because ‘it does not follow that the evidence will be disregarded.’  That proposition in my view is central to this present application.
  6. It is not surprising that the tribunal would express concern at the repeated failure of any officer of the MFB to attend a hearing and at the reaction of taxpayers to the legal and administrative costs being incurred as a result of the apparently considered actions of this accused. The tribunal has to proceed on the footing that the person charged is responding with the benefit of considered objective legal advice.  (He had the benefit of one of Her Majesty’s Counsel yesterday.)  That being so, it may be appropriate to remind the person charged and his advisers of the potential consequences of choosing some course other than the cooperation that had been signaled by the concession by Mr Smith that he had engaged in offensive behavior in breach of the relevant policy.
  7. Any lawyer of any relevant experience knows that the kind of advocacy required before a professional or disciplinary tribunal may be very different to that generally practised by criminal lawyers or industrial lawyers. Elsewhere you may be able to claim the right to silence or to indulge in subtle or rough-house tactical warfare, but in a tribunal where the issue is one of professional character and trust, any such forensic manouevres may be at best dangerous.  Every now and then, such a tribunal may see fit to issue a reminder to that effect.  This tribunal has, sadly, had to deal with a lot of bush lawyers in the past.
  8. It may help to put this application in context if I set out other comments made in the course of the hearing that were not referred to in this application.

He might be able to get a rehearing here as far as I know, but he would certainly get one on appeal.

There are lawyers and lawyers … There are lots of bush lawyers.

Someone who gets vilified as part of his job at least understands what it’s like to be vilified.

The law had always been that if you use equipment of the brigade in such a way as to bring the brigade into disrepute or to make that possible, then you are breaching your obligations to the brigade.

That email [the fucking camels email] which is grievously insulting to people of Arab background, and to people of the Muslim faith could lead to real violence, couldn’t it? … This is eleven months before the murder of those journalists at Charlie Hebdo …  it’s been known for some time that people who mock Islam do so at their own risk. 

… it’s unlikely that there’s going to be a substantive issue as to whether or not the charges have been proved …

If he wants to have a lawyer here, he better get on his bike and have that lawyer instructed.

Am I to make anything of the fact that the lawyers have threatened one course of action and adopted another?

  1. No one knows how this case might unfold. Only one side has been heard.  The upshot will turn on the case presented for the defence.  It is a commonplace that one story is good until the other heard.  You can find remarks to that effect in the judgments of Sir Owen Dixon and in the Old Testament.  But that obvious fact is not the answer to the question now before me.
  2. The application on the ground of apprehended or objective bias as I see it has to be determined in the light of all the matters that would be known or inferred by someone who read the transcripts and memorandum referred to. Doing the best I can to evaluate the response of ordinary people in that position, I am very far from persuaded that they would conclude that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it.  On my knowledge of what goes on in the outer – Bay 13, to those who are old enough – or the terraces at the Storm, I don’t think people there would conclude that the tribunal was prejudiced against Mr Smith or that Mr Smith would not get a fair hearing when the time came for him to prevent his case.  Accordingly, in my opinion the application on behalf of Mr Smith fails, and is refused.
  3. 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.
  4. 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.
  5. 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 fulfill 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.
  6. I do not think I need give any other direction now. I am available on short notice through the administration if any direction is sought.  Otherwise, I will continue to hear the case at the time and place we have stipulated.

Geoffrey Gibson

Owen Dixon Chambers

7 May 2015

Appendix I

In case in the course of this small sea of litigious controversy, the charges themselves come to be heard by someone else, who might have difficulty understanding the forces that can generate this kind of tension, I set out below some extracts from the memorandum I have referred to above on the subject of class warfare that was so bad in 2003 and now, I fear, may be just as bad.  People reading this should not take it lightly.  I doubt whether people in government know the stress that these class wars put on those in head office.  That is why I have seen recurring turnovers in that office in my time.  People just give up and leave because they cannot stand it any longer.  This is an appalling human problem, if nothing else, and it does not reflect well on any of us that it has been suffered to go on for so long.

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 [the ACTU President] 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 1 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.  I do not know why the point was pressed, but it was, and I will deal with it.  I reject it.


Secondly, there is the evidence of common sense and common experience.  The MFB did not come from Mars.  It depends on co-operation.  How well do you co‑operate with someone you hate?  Until recently I was a partner in a firm that had a staff of 1,500 and a turnover in excess of $250 million (compared to a staff of about 2,300 and a budget of about $190 million for the MFB).  If I had been told that a whole line of thirty managers was hated by the staff under them, I would have been terrified, not just over the capacity of the firm to deliver its product, but to survive.  I am sure that 200 other partners would have felt exactly the same.

I cannot believe that the officers and firefighters of this Brigade deserve all of this.  This Brigade boasts of being a happy family and plainly it is not.  The people I have met are all decent people who would not wish to remain the prisoners of history.  They must believe that it is time for people on both sides to come out of the trenches dug in another century and to abandon a mind-set caste that surely has no place in this country.  It must be time for the hate to stop.  There are, after all, many who still believe that vengeance belongs to someone else; some see that proposition as a major premise of the new part of the major religious text in use in this country.

But even if it is correct to say that there is no evidence that the industrial strife impairs operational efficiency, as the union and the ACTU contend, does this mean that a corporation does not have to worry about industrial strife unless there is a measurable effect on productivity (a proposition not contended for by the union or the ACTU)?  Such a response would be a prescription for failure in the public or private sector, and it would in my opinion be wrong – quite possibly unlawfully wrong – for those responsible for corporate governance to proceed on that basis.  Something has to be done.


Mr Grace was at pains to point out that the allegation was not one of actual bias.  If anyone wants to know my views about the governance of statutory tribunals, or of the role of an advocate before them, or of my attitude to this tribunal in particular, they can find it in chapter 22 of a book called Confessions of a barrister.  It was published about twelve months ago on Amazon and Apple when this tribunal was quiescent.   For ease of reference, I append most of it here.

When I came back to the bar, I was looking forward to having time to do my tax cases.  My secretary, Lisa Mulcahy, who is as good a secretary as can be found, and who was both admired and feared by the press, had learned to expect the worst when I staggered back on a Friday at about 2.15 pm chewing on a Four ‘n Twenty, and desperate to get out a draft set of reasons that I could look at over the weekend.  Gone were the days when I would do the decision in my car while one daughter was at ballet at Essendon or the other was at horse-riding at Kew.  The pay was piddling, but that was not the point.  I was under pressure in the firm to drop the brief because it took a lot of virtually free time, but money was not the main factor.

Apart from a sense of professional obligation, and a curious kind of gratitude, the position might offer some standing and a platform for building a practice, together with arbitration, mediation, and legal advice on corporate and defamation issues.   I was about to publish my third book, Law for Directors.  (The first had been The Journalists’ Companion that succeeded an MUP book by Geoffrey Sawyer; the second had been The Arbitrators’ Companion.)  I certainly did not want to go back to court – it is just so frustrating watching others – but I was keen to continue the work in my little tribunal.  I was looking forward to a useful autumn.

I have referred elsewhere to the grubby little coup by which I was dismissed without notice after 18 years.  Two other members of the tribunal feared a loss of work in personal injury cases.  Without notice to me, the President, or the Revenue, they hijacked the Taxation Division.  The crown was as outraged as me – the till was in the hands of people who did not know what they were doing – but the President, a politically appointed judge who has since retired young, went along for the ride.  I prepared a writ against the government, but my friend and colleague Robert Heathcote advised me not to issue it.  I think that that advice was right, but it has left me with a sense of grievance that would do justice to a lapsed Irish Catholic member of the Australian Labor Party.

I referred my case to the Chief Justice.  That court has an historical role, one that goes back many centuries, for the way in which inferior tribunals are run.  That court is also the guardian of our administration of justice in general.  My complaint related to the administration of justice, and the crown was, if anything, as dirty on what was happening as me, and a justice of the Supreme Court was involved.  I was therefore saddened to get only a holding response from a court official, and no more.   I will not speculate on the extent to which the political nature of the appointment at either end may have led to this inaction, but I will say just one more thing about this body with this silly name and this most unfortunate reputation.  It is mainly staffed by part time or limited tenure civil servants, not judges – but we have a justice of the Supreme Court in charge of them. 

This is hopelessly wrong juristically and managerially.  We do not have judges running the railways.  We do not even let them do Royal Commissions – all for the reasons that they should not run VCAT.  It is just a matter of time until they hit a political fence, as happened here in the first Taxation Division – and tax is if nothing else politically sensitive.  You cannot have Supreme Court judges in a position where they may be sued, albeit in the name of the crown, for wrongful dismissal in managing part of the civil service.  And you are not going to attract good lawyers to the Thirds or Fourths.  The Supreme Court needs to get out of it; the position is not helped when the County Court sends down its cast-offs.

The last case I heard at VCAT showed what happens when inanity prevails.  A Sicilian migrant went from being a butcher to a baker – he did not like the cool room – and he astutely bought land in the corridor.  By the time he got to me, he was worth north of $40 million.  He distrusted lawyers and all professionals.  Was he now a farmer?  Someone had made directions for witness statements, which are anathema to me, and all the ghastly folderol indulged in by lazy judges.  The Sicilian filed a statement in impeccable English about trusts and companies.  The first thing he did in the witness box was to ask for an interpreter!  But he knew his occupation:  FARMER.  Since I thought that that answer begged the question, I asked the interpreter what was the Italian word for ‘farmer’ and he said there was none.

This sad little farce reminded me of Derryn Hinch not taking the oath before Peter Murphy.  Could lawyers possibly devise a better way of making a fool of their client?  Then I remembered a case where Julian Burnside successfully argued that a taxpayer had waived legal professional privilege by referring to his legal advice.  When I got to see the advice, my eyes nearly popped out.  The lawyers had put their clients up to outrageous whoppers.  Then I recalled a tax case that Bill Ormiston did as a junior while I was reading with him.  Bill was for the crown and the question was whether a man should be assessed on the capital gain on land he had bought in the corridor.  He said he had bought it for picnics and horse riding for the kids.  Sadly, his bank manager’s very full diary notes told a different tale – he told the bank that this was a rolled gold investment opportunity on which neither they nor he could lose.

I did try my hand in a comeback as advocate once.  That once was enough.  I acted for a cattle breeder who got thrown out of the breeders’ association.  His crime was to be smarter than those who threw him out.  He was keen for me to appear in the appeal, so I reluctantly did.  The appeal was a kind of arbitration conducted by my friend, the late Frank Costigan.  I thought I might go mad.  It went for three bloody days.  I never did find out what my bloke’s real ‘conduct unbecoming’ was.  Then Frank sat on the decision for weeks, and handed down a decision for which he charged six days’ preparation.  We won, but that was the end of advocacy – it was very bad for my blood pressure.

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-paying 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 Whelan.

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 Whelan 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 Whelan went from being garbo to firie, his mate went into business and became very successful and very Smith.  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 Whelan!  I cursed the secretary for being late, but Mr Whelan 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 Whelan 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 Whelan and his mate – and the union.

Otherwise, now, I enjoy giving legal advice to Black Inc, which publishes The Monthly and Quarterly Essay, and books, including, I hope, one written by Jeremy Cooper and me on superannuation.  I have had five books published, and I have about ten on the rack that I want to get out in one way or another.  I dedicated my most recent book to the memory of Jim Kennan. 

Cliff Pannam has written as much as me, and probably has a similar sales record.  Sweet Fanny Adams.  I may suggest that we jointly get on a sure fire winner, the shortest legal text-book ever:

Gibson and Pannam

On Gift Duty

From Beginning to End – In One Line

Advenit.  Venit.  (It came and it went.)

Since Cliff is just coming off the high of the trifecta in the Melbourne Cup, our luck may be in.

I also appear to be at risk of developing a practice in acting for members of the clergy.  These cases are likely to be even more sensitive than claims against lawyers, because you may have a difference in vocation that is literally out of this world.  I have been appalled at some failures by a church to stand by their man because they thought that their ‘brand’ might be impugned.  These cases, like discrimination cases, can be both sensitive and hard.  I am most grateful for the counsel of Peter O’Callaghan in these – Peter’s contribution to our community, not to say our profession, is simply and sadly not understood by what passes for our press.

If I had my time again, I do not think I could ask for more than what I have been given this time around, but so mighty is my regard for people like Oliver Wendell Holmes, Roscoe Pound, and F W Maitland that I would like to have been a legal or constitutional historian.  As it is, I look forward to my thirtieth anniversary of hearing cases, and I see no reason why I should not just keep going in one way or another.  Retirement looks decidedly off.

Living with Terror and I S – Part I



What would it be like to live under I S?  From what we know it is a police state run by fanatics by applying terror.  That describes France under Robespierre, Russia under Stalin, and Germany under Hitler.

Terrorism is a broad church.  There are arguments now about labels for killings by fanatics, if not lunatics, who appear to judge and hate people by applying labels to them.  That very circle should make us wary about applying labels to the culprits.  The recent atrocities in the U S and the U K could be described as crimes of hate – if you go in for labels.  The U S attack was immediately described as ‘terrorist’; the U K attack was not.  How significant was the religious claimed affiliation of the first culprit?  How different might be the degrees of mental illness of the two culprits?

In a book called Terror and the Police State, Punishment as a Measure of Despair (Amazon, 2014), I sought to look at aspects of terror in the three regimes mentioned above – involving two of the most civilised nations in the world.

What is terror?  Terror is extreme fear.  If I feel terror, I feel an intense form of fear.  When we talk of ‘the Terror’, we speak of a government that engages in terrorism – it pursues terror (or extreme fear) – for political purposes.  Some people think that terrorism has only recently become a big issue.  They are wrong.  It is as old as humanity.  The book of Genesis is full of it, with God taking an active part in many forms of terror and with terrifying results, as you would expect from a being that is all powerful.  The Oxford English Dictionary says that terrorism is ‘government by intimidation’ and a ‘policy intended to strike with terror those against whom it is adopted’.  The first instance of terrorist in the Oxford is ‘applied to the Jacobins and their agents and partisans in the French Revolution’.  The editor might just as well have referred to the Russian and German examples that we will come to, but in all such cases, including the Jacobins, the terrorists were people in the government.

Except for a limited form in a black hole like North Korea, we do not see terrorism much in government now, at least not in a form that governments own up to.  Some might see the killing of suspected terrorists on foreign soil as an instance of terrorism in itself, but the answer to the question will depend on what side you are on and where you are standing.  If you have just seen your family obliterated by a drone sent by a regime that you regard as being as evil as it is faithless, you will see yourself as a victim of terrorism that entitles if not requires you to respond in kind, and just as randomly.

We still plainly see terrorism in those who try to bring governments down and in religious fanatics who want to achieve either that objective or some other religious purpose.  At the time of writing – in mid-2014 – some fanatics under the label IS are pursuing terrorism to create an Islamic state.  One of their ways of inducing extreme fear is by cutting people’s heads off in public.  This was the preferred mode of terrorism employed by the Jacobin government in France just a few years after the white people from England set up their first colony here as a jail.  The French preferred the guillotine because it was more humane and more efficient, although, as we will see, circumstances would drive them to look for quicker ways to kill, as would be the case with the SS in Germany.

What we see now is people who kill for a belief.  These beliefs confer total certainty and demand total obedience.  These killers kill for a belief that excludes tolerance for any contrary belief and any diversion or softening on other moral grounds. ‘I believe – therefore I kill’.  Credo ergo caedo.  They become what might be called credo killers.  They are prepared to kill and die for a belief because that belief means more to them than life itself – or at least this life.  The promise of eternal life is a real killer.  How do you deal with a religious fanatic who wants to die and who only gets worse in prison?

I propose to post extracts about terrorism from that book.  The role of terror in police states will be looked at under some or all of the following headings: Degradation; Scapegoats, suspicion, and proof; Surveillance; Denunciation; Fear; Popular courts and show trials; Propaganda, religion, and cults; Banality and the surreal; and The Horror.

You may be surprised just how much of the form and substance of the horrors of the twentieth century were prefigured in France at the end of the eighteenth.  We need to get a more balanced view of what ‘terrorism’ means.  There are of course differences between the terrorism practised in the three regimes dealt with in the book, and terrorism practised by bodies like the IRA, KKK, or I S, but there is also the risk that in responding to terrorist bodies like those, we undermine our own political and legal welfare, and we then head toward becoming a police state ourselves.

Here is the first such extract on degradation, and a nation does not have to live under terror to degrade itself.  Just look at Donald Trump.


When Descartes famously asserted as the irrefutable basis of his metaphysics ‘I think, therefore I am’ – Cogito, ergo sum – some people of an acute philosophical bent may have ventured that the word ‘I’ might have to carry a lot of weight for that proposition to be sufficient to build a whole system on.  If you assume that you know nothing, what might I mean?  Well, that sort of thing might be OK in metaphysics, but it means nothing to most people.  But according to Arthur Koestler in Darkness at Noon, it meant something to his principal targets, the Communists in Russia.  There the secret police say that the word ‘I’ is ‘a grammatical fiction.’

It is not surprising to hear this asserted in a totalitarian state.  The whole object of such a state is to ensure that the individual – the owner and the professor of the word ‘I’ – does not get in the way of the state.  For them, the state is everything, and the individual – the ‘I’ – is nothing.  The sense of self, or a person’s sense of worth – their dignity – is degraded in so many ways.  Representatives of the state or the party belittle people.  The very emptiness of the system and its slogans and symbols reduces people in their own eyes.  Do decent people, even the most incurable addicts of Wagner’s Ring Cycle, really want to bow down before a broken cross, lightning runes, or a death’s head?

And people hear of or see things which debase or degrade them further.  They hear of things that revolt them, and they go into blank denial.  But they see or hear of things that make them complicit in a denial of truth, decency, and even life.  A combination of terror and propaganda plays very ugly games with their minds, and they feel changed and demeaned.  This in turn lowers their inclination to object, and so the downward cycle progresses, sometimes to the finite regress of suicide if the state does not get there first.  By then they have bought into or they have been locked into crimes against humanity that would previously have been unthinkable to them.  These regimes want to reduce their people to their level.

We associate the grosser forms of that cycle with Communist Russia under Stalin and with Nazi Germany under Hitler.  It can give you a jolt to see the same forces at work in France during the Terror in 1793.  Here is a long extract from Les Deux Amis (Two Friends) a primary source of major phases of the revolution in the form of a witness account that Carlyle was fond of drawing from.

A resident of Paris returns after ten months away.

So there I was packed into a stage coach surrounded by sinister faces, for at that moment, none but revolutionaries and government agents dared to move about.  My mind was filled with the darkest presentiments and every stage on my way to Paris seemed to bring me nearer to the scaffold.  As I thought of my wife and my children, I reproached myself for having left them so rashly and for not having embraced them yet once more before we parted.  During the whole journey, the sight of a rock, an agreeable bit of landscape or a tree noticed by the wayside stamped on my mind a melancholy impress, which I cannot describe.  I cherished a wish to see them again on my way back, saying to myself: ‘If I see them again, that will mean I have got out of Paris, and if I get out of Paris I shall see my wife and children once more.’

Just before reaching the modern Babylon, we changed horses and I got out to stretch my legs.  I tried to banish the painful thoughts that haunted me, and went into an inn with the object of eating something if the burden of worry which oppressed me allowed me to do so.  Sitting down at a table I picked up a newspaper lying there and, glancing over it, was instantly struck by a news item describing the execution of a man – a good man and one of my friends.  He had been a notary and in that capacity, he had countersigned without reading it, as was the practice, a document whose contents were unknown to him.  The Bloody Assize had condemned him to death.  His hair had been cut and he was waiting to be executed, when he was snatched from the Guillotine to have his case examined afresh.  The Convention had ordered this humane intervention, but the court presided over by Fouqier, who did not wish to be thought capable of condemning an innocent man, had the victim dragged to the scaffold and beheaded.  And so Chaudot, a good, honest man, had the misery of drinking twice over the cup of death.

I was overwhelmed by this story.  My strength failed me.  I wanted to eat but could not get anything down.  I raised a glass of wine to my lips, but had not the heart to drink.  I hurried back to the diligence, where I remained plunged in a mood of the deepest melancholy from which I was aroused when one of my companions cried: ‘Here we are at the barrier.  We’ve arrived.’  These words took me out of my lethargy, but they made me shudder.  I put my head out of the window.  It was dark, though it was scarcely eight o’clock.

What a change!   Formerly – even when I left the city not so long ago – eight o’clock was the hour when Paris was most brilliantly illuminated, especially in the populous quarters.  The light of innumerable street lamps blended with the blazing windows of the shops, where art and luxury had accumulated thousands of objects which vied with one another for elegance and value.  It was the hour when the cafes were lit up and when the gleam of candles shone from every storey; when luxurious equipages passed one another swiftly in the streets on their way to theatres, concerts and balls in every quarter of the capital.  Now, instead of this bustling life, these animated crowds, this impressive brilliance, a sepulchral silence filled all the streets of Paris.  All the shops were already shut, and everyone hastened to barricade himself in his own home.  One might suppose that the weeds of mourning had overspread all that breathed.

He got off at the coach terminus to go to the house of a friend.  A sentry at the door took his packet off him because he should not carry anything at night.  He was told to get it the next day from the guard-room.  He set off for his friend whom he had not seen for 18 months.  His friend had ‘turned Jacobin as a form of insurance’ and thought more of his own safety than of his friends.

It was nearly nine o’clock when I knocked at his door.  This would not have been thought unduly late in normal times, but as it was, my knocking at the door at such an hour caused a panic among all the people who lived in the house.  Domiciliary visits [raids on houses] were usually carried out at night and most of the crowd of citizens who thronged the prisons had been arrested after dark.  The sound of a hammer caused every hearer to tremble, and my former friend seemed to be particularly alarmed when he saw me come into the house.  Without asking after my health or inquiring what had happened to me and why I had come to Paris, he gave me to understand in curt, clear language that as I had left Paris some time back it would be dangerous for me to stay in the city and for him to offer me shelter.  ‘What?  It would be dangerous for me to stay the night?’ I asked.  ‘Yes it would’ he replied, ‘if they came now to search the place, I would be a lost man.’

His friend had the courage to take him to a fruiterer who had a room to let, but the fruiterer would not take him at this hour, and his friend left him, warning him not to stay long on the pavement, unless he wanted to be ‘picked up by one of those patrols, who were usually reluctant to release persons who fell into their clutches.’  He went back to the fruiterer again who said that he had gone to bed early because he could not get candles in Paris.

‘Of course you have your passport?’  I said I would show it to him.  Before reading it by the light of the lamp, he eyed me intently.  ‘But this passport is not signed by the revolutionary committee of this section.’  ‘Yes, but I have only just arrived.  The committee is not in session this hour and I cannot get them to sign it tonight.  Give me a bed for tonight and tomorrow I will get up and I shall go and get the visa.’  ‘Impossible.  Impossible, if they came tonight, and they visit furnished lodgings every night, I should be put in prison for having taken you in without your passport being duly visa-ed by a revolutionary committee.  So, my dear sir, out of my house you go and at once.’  And suiting the action to the words he slammed the door in my face as civilly as my friend the Jacobin had done not long before.

Our hero is now seriously alarmed.  He crosses important streets without meeting a soul.  He hears a sound and huddles in a carriageway.  Two files of pikemen (people carrying lances) are ‘escorting in their midst a carriage with windows closed, doubtless to silence the cries of the persons inside.’  They stopped outside a monastery now serving as a prison.  The person in the carriage was a woman.

‘Inhuman monsters, after murdering the father, must you tear the mother from her children!  No, I will not get out – you may kill me first.  My own child whom I nursed.  He will die.  No… I will not get out.  Oh, well, I will, but give up my child, my child….my child.’

The guards pulled her out and threw her into the prison.  Cold rain was falling.  He stayed two hours there in the cold, but at midnight his feet were cold and he was shivering.  He moved and was instantly seized by a patrol.  They took him to the coaching-office to check his arrival time.  The register and package proved his story, and he was allowed to fall asleep on some parcels.  When he woke, there was another employee there.  He decided to abandon his mission to Paris.  He asked when the next coach left.  There was one at eight!  He reserved a place, got a receipt, and went to a coffee house for some breakfast.  He got into the coach to be sure of his place.  The horses were put in.  A policeman asked if their papers were in order.  He showed his receipt.

Don’t want that!’  ‘What do you want?’  ‘Your passport.’  ‘Here it is.’  ‘You must get out.  You are not in order.’  ‘What do you mean?’  ‘This passport has not been countersigned by the revolutionary committee of the section in which you lodged.’  ‘Citizen, I did not take lodgings anywhere.  I arrived at seven and finished my business at eight.  I spent the night in this office and now I want to go.’  ‘Never mind about your business.  No one can leave Paris without having his passport visa-ed by a revolutionary committee.  The orders of the Commune about this are perfectly clear.  The committee may be in possession of details about you and it is proper for you to show your face to the persons charged with proving your identity.’

He got out.  The coachman ill-temperedly whipped his horses and took off with the price of the seat and his small parcel of clothes.  At least in daylight, he was able to get into a lodging house.  He asked his hostess in what section he was so that he could get his passport visa-ed.  She told him where to go and not to come back without a visa.

I then set out.  Daylight and the sight of many people moving freely in the streets restored my nerves to some extent and I walked boldly on my way when suddenly I was struck by a curious medley of colours which I had not been expecting.  All the doors and all the windows carried a flagstaff on which floated the Tricolour [the French flag].  A few patriots, more republican in spirit than their neighbours, or wishing to be thought so, had hoisted this banner and from that time onwards, as it was dangerous to be less patriotic than anyone else, everyone had decorated his windows with tricolour streamers and large coloured inscriptions.

He easily recognizes the office of the committee from the size of the flag, and the proportions of the red bonnet (mandatory attire for sans-culottes) ‘and the hang-dog appearance of the men on guard at the entrance.’

My heart beat but I walked in.  I could have imagined myself in the cave of Cacus [a famous robber, three-headed and vomiting flames].  After crossing a little courtyard, narrow and dark, flanked with high walls, in which were collected an assortment of cut-throats armed with swords and pikes, I went up a squalid staircase at the top of which was an anteroom, leading into the room in which the Committee held its meetings.  This anteroom was crowded with creatures even more hideous than those whom I had seen in the courtyard.  It reeked of pipe-tobacco, brandy and meat [all impossible for others to get], aggravated by the heat of the fiery stove, which had a sickening, suffocating effect on anyone coming into the room out of the fresh air.  ‘What do you want?’ said one of these horrible individuals as he gulped down a cupful of wine.  ‘I have come to get my passport visa-ed.’  ‘Go into the room then.’  It was the room in which members of the Committee were sitting.  I went in.  It was worse than the anteroom.  There was the same foul stench, the same bunch of brigands, but those in the Council room were more insolent than the others.  They wore the rags of a feigned poverty, but they had hearts of steel and the mien of tyrants.  From top to toe, nothing could have been more disgusting than their personal appearance.  As sans-culottism had been promoted to a virtue and as the people, so far from displaying the trappings of luxury, had thrown themselves into the opposite extreme, these individuals affected a squalid poverty.  At that time in Paris dirtiness was a sort of passport…

He describes the shocking attire, shirts open to the waste, of

….these impudent bullies, brutes raised out of the slime, where they had won notoriety by their deeds of violence.  To crown it all, they assumed in the midst of their filth, a veneer of antiquity and gave each other Greek and Roman names which they disfigured grotesquely as soon as they began to address one another. ‘That’s a job for you, Manlius; you’re a clever cove, you’re one of ours.’

They were getting police to affix seals on property of people arrested the night before.

After these honest fellows had whispered together for a while and the stickers-on or removers of seals had gone off on their mission with one of the members of the Committee, the Chairman graciously took notice of me.  ‘What do you want?’  ‘A visa for my passport.’  ‘Where do you come from?’  ‘Blanktown’.  ‘Full of aristocrats.’  ‘You are mistaken, citizen.’  ‘Who are you calling vous?  It’s only Pitt and Coburg who use the vous.  In a free country one has to say tu.’  ‘Citizen, next time, I shall not fail to do so.’  ‘What have you come to Paris for?’  ‘To get some money from a gentleman of my acquaintance and go home again.’  At the word ‘gentleman’ which I had let slip in my confusion there was such an uproar in the Committee that I seriously thought that I was done for and that they were going to imprison me.  ‘Ah… have come to see a gentleman.  So… must be a gentleman yourself.  Just look at this fellow, Brutus.  Does he not have the build of a federalist [a very vague term for anyone against the Jacobins]?’  ‘I, citizen?’  ‘You be quiet and bring us your witnesses so that we may see if they look as suspect as you do.’

There is no point in asking what witnesses?  He went back to his landlady.  She explained that witnesses were guarantors – if their subject defaulted they would be arrested.  Where in Paris could he find two people to take that risk, when all forty-eight sections were competing to slap as many as possible behind bars?  His landlady directs him to someone who will do it for a fee.  He has trouble finding the place because the streets have been renamed after heroes of the revolution.  He finds the place and the wife says her husband has gone off to the Place de la Revolution to see a ‘score and a half [30] of aristocrats sneeze into the sack.’

That was the phrase for the amputation of heads, which, severed by the blade of the guillotine, fell speedily one on top of another into a kind of basin, where they floated in blood, which splashed up as the heads dropped, and flooded the pavement of the place directed to these daily butcheries.

The wife had advised her husband not to go for such a small batch, but when he returned, he said it had been a great pleasure ‘as he had never laughed so much.’  The valets to the executioner and the coachman of the tribunal warmed the crowd up with a burlesque show that was hilarious and which the husband still exploded in recollecting.  It was of course a capital offence to show sympathy for the accused.

‘By God’, he said, after concluding his narrative, ‘these dogs died very bravely.  It’s unfortunate that the aristocrats die like that.  In this batch there was a little pullet of from seventeen to twenty, as fresh as a rose, who climbed up on to the platform as gaily as if she were going to dance a figure from a quadrille.’  ‘Seventeen to twenty was she?  That’s early to start being an aristocrat.’  ‘You’re right’, said my companion, ‘but those people drink federalism with their mother’s milk.’

There you are – you have it, in the very first sentence of the extract.  He is surrounded by ‘sinister faces’ and in a binary or black and white world, only two types of one group matter – revolutionaries or government agents.  He is full of apprehension in this strange, hard new world.  He feels guilty for leaving his wife and children.  Will he see them again?  How different is Paris – muted, sombre, deserted at night; even the street names have changed (and they are named after some awful or dreary people).  He reads that a friend has been executed – most cruelly, and for nothing.  He calls on another friend who has become a terrorist (Jacobin) for ‘insurance’ and who is terrified to be seen with him and who cannot get rid of him soon enough – the agents raid homes and make arrests at night.  He sees that everyone has been frightened into showing support for the terrorist regime, and he reflects on the mindless banality – the spectral hypocrisy! – of their slogans.  He has to deal with regulations that make Kafka look easy.  You cannot comply with these Byzantine laws.  No one will take him in.  Everyone is scared.  He sees police patrols in action – he has been warned not to get picked up – and he hears the anguish of a mother with a child who is another victim of the Great Terror.  It is a random and capricious world of heartless and mindless cruelty to people.  How did it all come to this?

Then he has to come face to face with the regime, dirty, rotten people way above their station wreaking revenge on their betters.  Now he feels the full weight of Hamlet’s insolence of office, the proud man’s contumely and the oppressor’s wrong – those things that Hamlet thought of when contemplating suicide.  He is offered a corrupt out – most police states are rotten to the core, and give an out to those who can afford it.  A person will attest to him for a fee.  But this man keeps laughing about the entertainment offered before the daily batch of the guillotine (only twenty-five, so small a batch that his wife did not think that it was worth his time).  He reflects on the public beheading – sneeze into the sack – of a blithe seventeen year old girl.

All this takes place at the end of a century of what we are pleased to call the Enlightenment in Paris, perhaps the most civilized city in the world.  Even allowing for some journalistic licence, how did the people of Paris become so degraded?  How is it that a civilized French couple could sit down for dinner and happily swap notes about peoples’ heads being cut off in public and dropped into a bucket of blood, splashing the pavement?  Was Dickens’ picture of the Terror and the Tricoteuses underdone?

Most people reading this will have experienced countless examples of rudeness and nastiness of people in power, but very few will have experienced it under a regime that has no conception of the rule of law, due process, or basic human rights.  It is precisely that void, which seems to bring with it a general moral vacuum, that is of the essence of a police state.  It is that which makes such a state so frightening and revolting – and degrading.  There is no answer to the questions raised above – at least not one that is available down here – but we may seek to look at some features of the Terror practised in France, Russia and Germany.

In some accounts of the Russian Revolution, you can find a hideous photo of a kind of crucifixion practised in the civil war.  The Reds have taken a Polish officer, stripped him, hanged him naked upside down, and then beaten, cut and tortured him until death.  About twenty red soldiers are standing around looking sedate and only mildly interested.  In the catalogue of the museum Topography of Terror at what used to be Prinz-Albrecht-Strasse, the headquarters of the Gestapo, there is a photo taken from a distance in the market square at Ulm in 1940.  A nineteen year old woman was being publicly shaved because of a relationship with a French P O W.  She was later sentenced to one year’s imprisonment and two years’ loss of civil rights.  Someone had objected to this brutal humiliation.  The caption in the press was ‘Thousands of faces expressed mockery and disgust.’  In fact the photo up close shows people laughing and smiling as if their team had just won in football.  It may be the most appalling photo in the book.  You are watching people degrading themselves.

There is also a photo of SS guards and female administrative personnel at Neuengamme concentration camp in December 1943.  There are more than a hundred seated at well laden tables under the runic slashes of the SS in what the SS called a ‘Yule celebration’.  With all the red and white wines and the holly and the napkins on the tables, there were ‘Yule lights’ produced by the inmates.  This photo, too, is appalling in its own way.  Not one person is smiling.  They might as well be dead.  Their degradation has brought them to the Kingdom of Nothingness.

Degradation by its nature tends to occur over time and often so that people are not aware of how they are being changed for the worse.  The career of a man called Simonov took off during the Great Terror of 1937-1938.  On his death-bed in 1979, Simonov dictated a testimonial that was remarkable for its candour and insight.

To be honest about those times, it is not only Stalin that you cannot forgive, but you yourself.  It is not that you did something bad – maybe you did nothing wrong, at least on the face of it – but that you became accustomed to evil.  The events that took place in 1937-8 now appear extraordinary, diabolical, but to you, then a young man of 22 or 24, they became a kind of norm, almost ordinary.  You lived in the midst of these events, blind and deaf to everything, you saw and heard nothing when people all around you were shot and killed, when people all around you disappeared.

People becoming ‘accustomed to evil’ might be close to the heart of the darkness confronting us.

Passing bull 47- Statutory bull


Lawyers have given up hope of getting sense out of acts of parliament, but you rarely see bullshit of the quality on display in the CFA Act in Victoria.

s. 6A Accountability of Authority

(1) The Authority is subject to the general direction and control of the Minister in the performance of its functions and the exercise of its powers.

(2) The Minister may from time to time give written directions to the Authority.

The net result is that the heading is misleading.  The Authority is not accountable at all.  The Minister is.  Well we know that.  If the Board doesn’t toe the government line, the Minister fires it.  Why bother to have a board?

Now cop this

s.6B Objective

The objective of the Authority in performing its functions and exercising its powers under this Act is to—

(a) contribute to a whole of sector approach to emergency management;

(b) promote a culture within the emergency management sector of community focus, interoperability and public value.

That is Grange quality bullshit – world class.  They nearly used the word ‘holistic’ in a statute.  It gets picked up in the EBA that may be the final monument to the bullshit of the IR Club.  It is more than 400 pages long.  How would you like to run a business under that kind of diktat?

3.1.5. A joint approach on “productivity policies” that embrace the drivers

and enablers of performance and are consistently applied.

3.1.6. recognising that a productivity model recognises the changing

knowledge requirements of employees covered by this agreement

in all phases of the enterprise activity and also caters for:

(a) increasing requirement for innovation

(b) accelerating adoption of technology

(c) management of risk

(d) motivation of a diverse workforce

(e) working conditions as a work value differentiator

‘Drivers’ and ‘enablers’!  That is premier grand cru bullshit.

But there is a part of the CFA Act that is intelligible.

s. 6F Recognition of Authority as a volunteer-based organisation

The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.

How does Danny Boy square that with handing control over the CFA to those who are not volunteers?  Don’t ask Danny Boy.  Ask the Premier of Victoria.  A tiny minority gets a veto over the parliament preferred volunteers.  Danny Boy must have some kind of dispensing power – like James II.

That king got run out of town.


Ali again

For the first time I can recall, The Economist obituary ran to two pages.  It contained the following.

Denied entry to diners on a southern tour, he made one of his raps of it: ‘Man, it was really a let-down drag.  For all those miles I had to eat out of a bag.’  Told in a Louisville hamburger joint, when he went in wearing his Olympic gold medal, that they still didn’t serve niggers, he said that was fine; he didn’t eat them.  But under the joshing lay depth upon depth of furious resentment…..Black heavyweights who were not new men like him, still managed by white mobsters and dutifully silent about politics, he called Uncle Toms and ‘great white hopes’, and mimicked their grunts and shuffles…like bears or apes.  It became a habit, turned most viciously against Frazier and Foreman, funny and appalling both at once.

Ali was not a saint.  (Does Islam have them?)  He was just the greatest.


Poet of the month: Anna Akhmatova


Lightly the weeks are flying,

What has happened, I can’t take in.

Just as, my dearest, the white

Nights first watched you in prison,

So they gaze down

With their warm aquiline eyes and

Of your cross transcendent

And of death I hear them speak.

A Dictator in a Banana Republic


The people of Victoria want their fire services supplied by people who are subject to the orders of people they elect into government – and not by people who are subject to the orders of unelected agents of the federal government.  The people in Victoria outside of Melbourne – the people in what we call country Victoria – want their fire services provided by people who are dedicated to the cause of country Victorians – the Country Fire Authority – and not by people who are dedicated to the cause of the City of Melbourne – the Metropolitan Fire Brigade.

The MFB and the CFA have as much in common as Venus and Mars.  They are separated by far more than history and geography.  There is a huge and irreconcilable difference in character – or, if you prefer, soul.  The difference can be stated this way.  The CFA are givers; the MFB are takers; the CFA volunteer themselves for their families, friends, and neighbours; the MFB do it for money.

And what money!  MFB firefighters enjoy pay and conditions that most other workers can only dream of.  This is because they play in a sandpit under the umbrella of an Enterprise Bargain Agreement that is enforced by their protectors in the Fair Work Commission.  They are the people who really run the MFB.

The act of the Victorian parliament that regulates the MFB provides for disciplinary action to be taken by the CEO.  I was the Disciplinary Hearings Officer for the MFB from 2002 until 2016.  The MFB declined to give reasons for the termination. The present CEO and his predecessors have effectively discarded the statutory discipline procedure – they have only applied it on about three occasions in six years.  What drove management to down tools – to go on strike?

What does this tell you about discipline in the MFB?  What does it tell you about the management of the MFB?  In what may be the last case ever heard under that act, senior counsel for the accused said that they were applying to the Fair Work Commission to get it to hear and determine the matter – and so perform a function given by the Victorian parliament to the CEO of that statutory authority.  So much for the parliament of Victoria!  How long will it be before the Fair Work Commission officially takes over running the MFB?  When in trouble the firies run off to them every time.  The UFU and the FWC are very close.

You should get hold of the EBA – it will be about ten times as long as the Australian Constitution, and it is a gift from God for casuists and urgers.  The EBA is a thicket to entrap management, and a dead weight of red tape that annihilates initiative, leadership, and loyalty.

In truth, the whole life and work of the MFB has been blighted by a class war that has gone on for generations – as can happen in a closed shop.  Both sides blame each other.  The lawyers have been on a gravy train for decades.

Whether you blame management or the men – women are in substance banned from the MFB – might depend on where you come from.  But does it matter?  Both sides feed off conflict, demarcation, bush lawyers, and a contempt for women.  The whole body is infected by congealed hate, and you can take your pick for the saddest apostle of hate.

For things to get better in this permanent war zone, there will have to be a sea change in both management and firefighters.  Government must rise above the class war.  At the moment, there is a revolving door for senior management, but the leader of the men appears to have been afflicted with a form of life tenure.  And he looks to have friends in high places.  And after all these years, he still sounds like the loudest boy who cried wolf in Christendom.

There is one step that the government could take right now to start to dispel the class war and put some sanity back in the war zone.  They could start drilling some sense into these men by bringing women up to equal numbers.  That would give us a real chance of breaking the inbred generational chain of hate.

And don’t take my word for just how poisonous this outfit is.  Just ask Sharan Burrow, the former head of the ACTU.  She thought that it was about the worst case of industrial poison that she had seen.  People in the country know all about this poison – it’s in the papers all the time – and they don’t want to be infected by it.

Now you will have some idea of why people in the country are outraged at the suggestion that the MFB might have some say in the fire services that they get.  People in the country like and respect the CFA – at least those who live and serve in the bush; they neither like nor respect the MFB – and that is putting it softly.

Why then are so many in this government so intent on acting against the wishes of so many men and women of Victoria?  Can anyone think of a clean reason why Victoria has been reduced to an adjunct of the Philippines and why the hirelings put into the CFA board will learn the meaning of the word scab?

Which management do you think should go?

Passing Bull 46 – How low can we go?


It wasn’t hard to guess who were the sponsors of Greg Sheridan’s attack on the Prime Minister in today’s Australian, but the inanity and vulgarity are breathtaking even by our standards.  The white-anting is said to reflect internal grief about the refusal of the PM ‘to campaign on key Liberal issues such as national security’.

The Prime Minister’s decision to tour a mattress factory on Thursday when the coffins carrying the remains of Australian soldiers killed in the Vietnam conflict were returned through the RAAF base at Richmond, in Sydney, has left some liberals astonished, confused.  They regard the politics of this decision-making as bizarre.

The official line, that Turnbull and Bill Shorten stayed away so as not to detract from the occasion, is nonsensical.  A respectful, non-campaigning prime ministerial presence would have underlined the nation’s gratitude to the fallen.

Without any overt politicising, the benefit to the PM of pictures of him welcoming home the coffins would have been very powerful.  Many Liberals think that any recent previous Liberal PM would have been there as a matter of course.

This is worse than bullshit.  It is revolting.  Our politicians are on the nose because they lack decency, taste, and balls.  The typical stunt that revolts us is a politician seeking to gain votes out of a sombre event, one that should never be tainted by politics.  One such event is the public return of our war dead.  Any politician who sought to make political capital of that would most politely be described as a jerk.  Yet when the P M and the Leader of the Opposition reach accord on respecting this basic level of decency, Sheridan says they are being ‘nonsensical.’  He, and his spiteful backers in the party, think that Turnbull should have made capital out of this photo-op, but that he should have done so covertly, rather than overtly.  Get out there and be political – but lie about it.  It takes a disgusting level of chutzpah to seek votes for welcoming back coffins of young men that his political party sent to their deaths on false premises.  The only thing that Sheridan is right about is that any recent previous Liberal PM would have been there as a matter of course.  Of course they would – that is just why they are so much on the nose.

I had proposed to vote informal, but Mr Sheridan has persuaded that I should vote for Mr Turnbull.  He is, I fear, our last best hope for any decency in Australian public life.

Poet of the month: Anna Akhmatova


They took you away at daybreak.  Half wak-

ing, as though at a wake, I followed.

In the dark chamber children were crying,

In the image-case, candlelight guttered.

At your lips, the chill of an ikon,

A deathly sweat at your brow.

I shall go creep to our wailing wall,

Crawl to the Kremlin towers.

A salute to the Greatest

I wrote the following about Muhammad Ali some time ago in a history of the twentieth century.

Muhammad Ali (1942-)

As befits a nation of pioneers who put a premium on individual responsibility and community ideals, Americans go for sport in a big way.  It is their national tragedy that instead of rugby or football and cricket, they have their own sports of gridiron and baseball, so that their champions do not compete on an international stage.  That does not stop Americans following their sports with at least the passion and patriotic intensity of the Indians with cricket or African nations in football.  The games they play tell you a lot about Americans.

In June 1902, a guy who ran saloons in Pigtown, Baltimore took his seven year old kid on a trolley-car to a reform school and then left him there. The school was named St Mary’s Industrial School for Orphans, Delinquent, Incorrigible and Wayward Boys.  The kid would stay there until 1914 when he was 19.  By the time he left, his mother was dead.

The kid got training to become a tailor, but he was big on baseball.  His nick-name was the unkind one of Nigger Lips.  Photos show a wide-eyed innocent with thick lips.  He was a fan of Brother Matthias, who gave instruction on baseball on Saturday evenings, and as a big raw-boned kid, he could play.  He could both pitch and hit – left-handed.  Jack Dunn, the manager of the Baltimore Orioles, spotted the kid and offered him a contract at $250 a month – primarily for his pitching.  The kid left St Mary’s as the legal ward of two of the Brothers, and with Jack Dunn as his guardian – the abandonment by his own family was complete.

They took off for spring training.  The kid had never been on a train or seen a menu before – he had never seen a professional player, let alone a professional game.  He must have been the most untutored player ever to go up to the Majors.  Dunn’s babies were known as ‘babes’.  Since the kid had got to retain his surname if nothing else from his family, and that name was Ruth, the kid became Babe Ruth, unquestionably the most famous name in all baseball.

Over the next twenty-one years, the Babe changed the game of baseball.  Before him, the game was controlled by pitchers, and batters approached their task tactically, and they tended to hit a flat trajectory.  The Babe was altogether less prosaic.  He introduced the power game, big hitting right up into the crowd.  He saw his role not just in moving men along the bases, but in belting home runs off his own bat.  He took baseball to a whole new level of entertainment, not just with the power of his hitting, but with the power of his presence.

The kid went to the Red Sox but they came to the doom-laden view that they would have to sell the Babe.  They did so at huge expense – an unprecedented sum – to the Yankees.  Now, the Babe was not really a Boston type, but he and New York in the Twenties were just made for each other.  And the city of Boston would pay an appalling price for its failure to come to terms with the Babe.  In what became known as the curse of the Bambino, the Red Sox would not win another World Series that century.

The Yankees won four World Series and seven pennants in the period that the Babe was with them (1920 – 1935).  In his total career he hit 714 home runs, a proposition that would have been laughed at in 1914.  He was the first to break 60 in a season – which he did after apparently being trumped by Lindbergh.  He was called the Sultan of Swat, the Caliph of Clout, or the Wizard of Whack, but he still holds the tenth highest batting average of all time.

Jackie Robinson became an officer in the US Army during World War II.  What awaited him when he got back to the land of the free?  ‘Down the back of the bus with the other niggers.’  Rather than football, Jackie took on baseball as his professional sport.  He had the eye of a natural hitter; he had all the skills for a second base; he was deadly quick at stealing bases, and handy if a shirt-front were needed; and he was determined to win.  In short, he was just the kind of player to build a team around.  Except that in 1947, baseball was rigidly segregated – no formal agreement, just invincible history and unwritten understanding.  There were white leagues and black leagues, and that separatism was just as saluted in the north as in the south.

Jackie Robinson and a man named Branch Rickey cracked the monolith.  They both subscribed to the teaching of the Jewish carpenter, especially the Sermon on the Mount.  They would both be tested on the hard bit – turning the other cheek – in a way that is not asked of most of us.  Rickey was the manager of the Brooklyn Dodgers.  He told Robinson that he would give him a go in the minors with a view to signing him for a full season with the Dodgers if he was good enough.  He said Robinson would be exposed to hate and abuse, sometimes from his own side, and that he would not be able to answer back.

Rickey had one large portrait in his office – the great emancipator, Abraham Lincoln.  Rickey was smart as well as brave.  He described his purpose:  ‘First, to win a pennant.  There’s some good coloured players.  The second reason is…it’s right.’

Robinson made the season with the minors satisfactorily.  (In his second at bat, he had rifled it into the crowd.)  When it came time for him to turn out for the Dodgers, every club but one said they were against it, and players in his own team took up a petition to have him excluded.  Other teams threatened to strike.  He was still subject to insult and abuse and death threats on the road, and venomous hate speech on the field.  He kept his part of the deal.  He copped it and he did not answer back.  He had a great season with the bat and a league-leading 29 stolen bases and a momentum – turning base-running style.  He was the first ever Rookie of the Year.  The Dodgers made it to the World Series and forced the Yankees to go to the seventh game.  This Yankee side, with DiMaggio and others, is one of the greatest teams ever, and is the main reason why the Dodgers do not have more to show from their ten years with Robinson.  He was not just a hero for black people, but for all Americans.

Well, what might happen if America got a champion black sportsman who played on the world stage, and who could appeal to coloured people all over the world, and who was prepared to stare down Uncle Sam – and who just happened to be the greatest of all time?

This is how Norman Mailer began his book The Fight:

There is always a shock in seeing him again.  Not live as in television, but standing before you, looking his best.  Then the World’s Greatest Athlete is in danger of being our most beautiful man, and the vocabulary of Camp is doomed to appear.  Women draw an audible breath.  Men look down.  They are reminded again of their lack of worth.  If Ali never opened his mouth to quiver the jellies of public opinion, he would still inspire love and hate.  For he is the Prince of Heaven – so says the silence around his body when he is luminous.

Cassius Marcellus Clay Junior was born on 17 January 1942 in Louis, Kentucky.  His father painted signs and his mother was a domestic.  They were African Americans descended from slaves.  The baby followed his father in being named after a famous abolitionist.  The former Cassius Clay was a most formidable man, a six-foot-six Kentucky farmer who had commanded troops in the Mexico War.  He inherited a plantation and he later freed his slaves.  For this he received death threats.  ‘For those who have respect for the laws of God, I have this argument.’  He produced a leather-bound bible.  ‘For those who believe in the laws of man, I have this argument.’  He produced the constitution.  ‘And for those who believe in neither the laws of God nor of man, I have this argument.’  He laid down a Bowie knife and two pistols.  Lincoln thought enough of him, or of the Russians, to send him to Russia on government business.  As David Remnick remarks, ‘He maintained his physical courage to the end.  When he was eighty-four, he married a fifteen year old girl.’

Clay grew up to win national Golden Gloves and then gold in the 1960 Olympics at Rome.  He turned pro and was undefeated, but he was not winning friends by his manner of belittling opponents.  He was light on his feet and he was unbelievably fast.  He had height and reach, and he could lean back and then hit his overcommitted opponent with a lethal right jab.  He won the right to challenge Sonny Liston, and the fight was set for 25 February 1964.

Sonny was born into the Mob – the underworld – and he could never get out of it.  He never had a chance.  He had no family to speak of and he knew the inside of the Workhouse.  He was an enforcer for the Mob.  Not many people gave lip to Sonny Liston and lived.  The Mob ran boxing.  A generation of Prohibition gangsters had promoted and fixed fights, charming people like Frenchy DeMange, Frankie Yale, Al Capone, Lucky Luciano, Boo Boo Hoff, Kid Dropper, Legs Diamond and Dutch Schulz.  You can ask why crooks were attracted to pugs, but they were both on the fringe.

Sonny’s manager was Paul John (‘Frankie’) Carbo, also known on the street as Frank Fortunato, Jimmie the Wop, and Dago Frank.  After being sent to Sing Sing for homicide, he lifted his game to become a hit man for the Brooklyn branch of Murder Inc.  David Remnick says that it took Cassius Clay, still on his way up, to break the grip of the Mob.  That young man found his protection in the Nation of Islam.  Many of his countrymen would have been more relaxed if he had stayed with the Mob – the devil they knew.

Sonny then would frighten the hell out of anyone.  The bookies had Clay at seven to one, which is insane in a two man event, and journalists were plotting the locations of the nearest hospitals.  Many thought that the kid would be killed.  The kid – the Louisville Lip – responded as was his wont now.  He taunted Liston, pulled up outside his house and asked him to step outside, and famously said that he would ‘dance like a butterfly and sting like a bee.’  He turned the weigh-in into a circus.

At the bell, Liston came out like an enraged bull, but Clay slipped away, and was scoring heavily by the end of the first round.  He buckled Sonny’s knees in the third, and he cut the champion for the first time.  He seemed to be blinded in the fifth, but he came back to belt Sonny in the sixth.  Sonny did not come out for the seventh.  It was a TKO and Clay shouted to the world that he was the greatest ever.  The rematch came after Clay had publicly, and amid great hostility, converted to Islam and changed his name.  It was a sad farce.  Liston copped what the press called the ‘phantom punch’, and the fight was over in less than two minutes.  It looked for all the world as if the fix had gone in and that Sonny had taken a dive.

Ali said that ‘Clay’ was his slave name.  He got offside with millions by taunting his opponents and then being cruel to them by prolonging their punishment.  He then courted more unpopularity by refusing to be drafted for the increasingly looked down on war in Vietnam.  He knew who his enemies were.  ‘No Vietcong ever called me nigger.’  In the way of things, it would be this stand that would secure his position in the Pantheon – and in the U S, as well as the rest of the world.  He would later be courted by presidents.

Ali was stripped of his title and locked out of boxing until the Supreme Court eventually set aside his conviction on a fine point of law.  (The black Justice, Thurgood Marshall, did not sit.)  By then, the tide had turned completely on Vietnam and Ali was a living legend for more reasons than one.  But he had lost the best years of his boxing life.  He fought Smokin’ Joe Frazier, who was more in the Liston mould, and he lost his first professional fight.  He would later beat Frazier, but the highpoint of his return, and of his boxing career, came with the fight against George Foreman for the title at downtown Kinshasa, Zaire on 30 October 1974, the Rumble in the Jungle.

There was a book, Mailer’s The Fight, and an Academy Award film, Once Were Kings, made about this contest.  Ali was passed his prime.  And Foreman had a fearful reputation.  He was a frightfully heavy puncher.  He had knocked out both Frazier and Norton in the second round.  Ali responded with his normal verbal barrage and mind games, but in the film, Norman Mailer said that Ali never looked at Foreman’s heavy punching bag – it had been deformed.  No one ever got into the ring with George Foreman after watching him deform the heavy bag.  No one – or hardly anyone – though that Ali had any chance at all.  This was then like the first Liston fight that had taken place more than ten years ago.  Again, people in the know feared for the survival of the outmatched challenger.

This is how Norman Mailer describes their coming together in the ring to get instructions from the referee.

It was the time for each man to extort a measure of fear from the other.  Liston had done it to all his opponents until he met Ali who, when Cassius Clay at the age of twenty-two, glared back at him with all the imperative of his high-destiny guts.  Foreman, in turn, had done it Frazier and then to Norton.  A big look, heavy as death, oppressive as the closing of the door of one’s tomb.

Then something extraordinary happened, something almost unbelievable.  Ali came out in the first round and started to hit Foreman, and hit him hard – with his right hand!  It would be like a right-handed batter or golfer coming out and playing left-handed.  It was downright insulting.  Then as the fight settled down, Ali would just go back on the ropes, hunch up, and absorb flurries of punches.  At first some thought that the fight had been fixed.  But then they saw that most of Foreman’s punches directed at the body were not scoring, but were drowning the energy of the champion.  It was high drama – anyone of those missiles could have landed any other fighter back in the bleachers, but Ali just went back, took the blows, and then eased out and scored.  All the time he was taunting Foreman: ‘Is that all you’ve got?’  It then became apparent that Foreman was tiring.  His punches were either not landing or not hurting.  And Ali was starting to float about him and was pinning him with darts at will.  Then in the eighth, Ali moved in for the kill and it was all over, and the world title was his again.  There was delirium in the crowd, and in front of TV sets all around the world.  Sports fans who have seen the fight and the film many times still move to the front of their seats and hold their breath while they watch it yet again.  It is probably the most watched sporting event ever.

After that, there was The Thriller in Manila with Frazier again, but it was all downhill.  Ali was permitted to go on too long.  This is sadly common with boxers and other sportsmen.  He became a distressingly sad reflection of the wonderful athlete and fighting machine that he had been.  In his advanced age he suffers from Parkinson’s disease, and he has had it now for a long time.

But even in that condition, he could move very greatly younger people who came into his presence.  Even in decline he had an aura – as Norman Mailer saw, he could be ‘luminous’ – in a way that could still move people by a curious alchemy, a kind of out of body experience.  Why is that?  Perhaps they just feel somehow that Muhammad Ali was in truth the greatest of all time.

It is a great story, the descendant of slaves beats off the mob, becomes world champion, beats off the government, and wins back his championship, each time against a frightening odds and a terrifying opponent.  For all of his faults and failings – which, for him, like most of us, were formidable – his story is a tribute to the human spirit.  This is why he is held in such awe right around the world.  This is why so many see him as the greatest ever, the greatest ever sportsman and the greatest ever entertainer, the promoters’ final dream, the ultimate crowd pleaser.  He embodies the truth that at least at the top now, professional sportsmen and women have almost nothing to do with sport, and almost everything to do with entertainment, business, and money.  If that means that we have gone from the amateur sportsmen of the Olympic Games of the ancient Greeks to the professional chariot races and gladiators of the decaying and decadent Romans, then that is a lookout for all our mums and dads and others.  Cassius Clay and Muhammad Ali have between them consummated that transformation.  The man has been, if nothing else, a mover and a shaker.

Muhammad Ali has a lot in common with the late Maria Callas.  He was, like she was, an entertainer.  They are both seen by many as having been in their time the best ever entertainers of their kind – there is generally seen to have been blue sky between them and the rest.  By the force of their character as much as by the high reach of their technique, they both radically changed the way that the world saw their art – and we should not blush to use that word for Ali was well as for Callas.  And now, in his reflective time at peace, Muhammad Ali might agree with Maria Callas that: ‘There are no short cuts.  There is only discipline, technique, and Mut’.  As the professional coach said in Chariots of Fire, ‘You can’t put in what God left out.’  It is just that some make better use of what they get from God than others do.