Passing Bull 138 – The sex ban


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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