Passing Bull 157 – TV or not TV

 

The other night I turned off two different codes of football on the TV and highlights of a cricket match in quick succession.  The reason was the same.  Each game was halted because of intervention by the off-field referee – the bane of TV replays.  They may be OK for line calls in cricket and tennis, but they are a pest elsewhere.  And it is hard to see how we might get rid of that pest if the overwhelming majority of the audience of the game is watching by TV – and has access to replays whether the broadcaster offers it or not.

More than twenty years of watching the NRL have convinced me that this apparatus does not so much settle arguments as inflame them.  FIFA is now finding that out – including in the final of the World Cup.  We are not talking about sport so much as entertainment, and stopping the game negates that.  It may also stop a side that has momentum.  Teams go to some length to slow games down when it suits them, and now an invisible official can do that for them.  We are acquiring evidence that suggests that if you invest officials with power, they may feel neglected unless they are seen to exercise it.  And heaven only knows what all this quibbling on technology does for our kids.  Sport is supposed to teach them how to lose and how to go with the call of the dice or the rub of the green.  This hair-splitting does the reverse.

The rugby union game I turned off was the worst.  Two New Zealand sides were playing in Fiji.  The score was 40+ to nil at halftime.  Then the loser scored two quick exciting tries and, as they say, it was game on!  But wait!  If you rolled the film of play back 50 meters there was a bubble in play that may have been a knock-on.  After a few minutes of replay, the second try was disallowed.  I snapped off in disgust.

Apart from ruining the game – either as a game to be enjoyed by those playing it or as a spectacle put on by professionals to entertain us – there seemed to me to be a problem of fairness, if not jurisprudence.

I assume that the rules of the game allow for this process of reviewing and over-riding the on-field referee by the invisible hand, as Adam Smith may have put it, but that is not the end of it.  A knock-on is against the rules in either form of rugby because you must pass the ball backwards.  (I am tentative because I was brought up with AFL footy.)  As I understand it, most knock-ons are accidental – deliberate knock-ons attract different responses or penalties.  The penalty that is awarded where the on-field referee calls the knock-on can usually be justified on the grounds of fairness because it represents a kind of award to the other side for applying sufficient pressure force the error – or it is just a smack for a mess up.  But the penalty consists of putting down a scrum with the side infringed against having the put in.  It must then apply its skills to get the benefit of that play.  When a penalty is offered and taken by a shot for goal, the side infringed against has to have someone who can kick it – and a lot may turn on where on the ground the offence occurred.  But where a try is disallowed because of a prior knock-on, the infringer is penalised, and to the tune of five points rather than two, without the other side having to do anything.

That does not seem right – to put it at its lowest.  There is no correlation between the offence and the penalty.  The penalty is awarded in fact (de facto) rather than by law (de iure) but its extent is determined by events after the breach of the rules.  That is why the penalty does not match the crime.  One reason that I have been following rugby is that the refereeing is much better, in my view, than in other codes.  T V is fast eroding that benefit.

Some rules say that the invisible hand can only interfere where the infringement is ‘clear’ and ‘obvious’.  What is the difference?  And how do you answer those who say that little in rugby is ‘clear’ or ‘obvious’?  What about stipulating that the infringement must look to have had consequences for the play?  Referees have to make calls like that in awarding penalty tries.  The fact that the on-field referee did not notice the offence may itself suggest that it was inconsequential.  What about saying that in each case the referee must make a call and that unless within say ten seconds the off-field referee is satisfied that that decision was plainly wrong, it stands?  What about reserving reviews for the side aggrieved and limiting their right to call for them – as happens in cricket?

Something must be done.  When did you last see an umpire call a fast bowler for a no-ball?  And what decent person wants to do a job where you get hung out to dry before millions of people?  And at least if the bloke in the middle buggers it up, you know whom to abuse.

Bloopers

Trump as President is doing a great deal of good and a great deal of bad.  Judging the balance is exceptionally difficult.  If you denounce Trump you are destroying the good; if you endorse Trump, you are denying the bad.  Yet the essence of strategic effect is correctly diagnosing reality.

The Australian, 14 July 2018, Greg Sheridan.

The problem with our politics.  Two fallacies followed by a nostrum.  We should be able to handle conflicting views.  Our failure leads to people like Trump.  Keats said:

…..at once it struck me what quality went to form a Man of Achievement, especially in Literature, and which Shakespeare possessed so enormously—I mean Negative Capability, that is, when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason.

Here and there – Submission to Banking Royal Commission

[The following submission was made to the Royal Commission before hearings started.]

Auf wiedersehen, Fraulein Longmuir

I refer two letters to NAB, my previous banker, that are set out at the end of this note.  Those letters refer to acts of what I would describe as misconduct by a bank – and I don’t think threatening to renege on bank cheque can be dismissed as mere discourtesy.  I offer the following observations, based in part on the conduct referred to in the letters, but mainly on a lifetime in dealing with banks – and acting for and against them.

  1. My father and mother, Mac and Norma Gibson, had banked with a NAB predecessor, CBC, throughout their married life. Miss Longmuir at Queen Street looked after them in my lifetime until I married.  Those days are long gone, and my two letters to Mr Clyne were in large part a lament for their passing.
  2. Shortly after the incidents referred to, I wished to change my will. Before the bank produced it, they demanded payment of arrears of storage.  So much for two generations of patronage.  This was too much for me, and I terminated the connection.
  3. I now bank with Bendigo. Although I do a lot on computer (and COMMSEC looks after my super), I enjoy going to the Kyneton branch of the Bendigo Bank, and talking to real, live human beings.  I actually got to speak to an account manager who knew what she was talking about – and who wasn’t stitched up by parroted bumpf about bank ‘products.’  Too many bank employees soon convince you that you have arrived at the perimeter of their safe knowledge.  And, if you are a lawyer, you might then wonder just how forensically vulnerable they may be because of their lack of understanding.
  4. My super fund has shares in Bendigo and the big four – except for NAB. I first got into them because a mate who was a stockbroker said to me that banks might generate returns to shareholders by doing the very things that so annoy us as customers.
  5. The truth is that the big four are a kind of oligarchy or protected species. They’re like koalas, but they’re not loveable.  The government protects them by a regime that would surely provoke anti-trust inquiries elsewhere.  And you and I get to stand behind them as de facto   You would therefore expect them to have a decent sense of community, if not gratitude.
  6. Although I am reasonably happy as a bank shareholder, I feel very squeamish about being a party to the payment of huge salaries – say, twenty times what we pay High Court judges – to people who earn about 100 times what they pay their tellers, and whose bonuses may turn on how many of those tellers they sack. On reflection, ‘squeamish’ is not nearly strong enough.  I am revolted.  It’s like being a resident of Dachau in 1936 and looking the other way.  (And when I went there in 1966, the residents were still skittish about acknowledging that they knew where the concentration camp was.)
  7. I was initially against conferring another Christmas bunfight upon lawyers with an inquiry like this, but one thing in particular changed my mind. People in the financial press were fond of talking about the ‘culture’ of banks.  Some, including those who should know better, said that the culture of a bank was a matter for the CEO.  They were incandescently wrong about that as a matter of law.  The board of directors may be able to delegate powers, but they cannot absolve themselves of their legal responsibility.  I got an uneasy feeling that too many bank directors didn’t know what they were there for.
  8. The fallacy about the responsibility for culture is in my view related to the shift in powers in major corporates over the last generation or so. The law says point blank that the ‘business of a company is to be managed by or under the direction of the directors.’  As best I can see, too many boards now act as glorified audit committees and leave the running of the bank to the CEO and management.  They need to be reminded – in neon lights – that they, the directors, are as a matter of law responsible for every aspect of the management of the business of the bank.  They are not there just to pick up their pay cheque, and check their insurance policies.
  9. I am told by someone who has been much closer to banks than me that the problem is compounded when too many bank directors do not know enough about the business of banking. Smart managers can then sell them pups.  If you see a lawyer on a bank board, ask them how they would feel about a bank manager running a law firm.
  10. But one fallacy should not lead to another. The directors are not answerable to their shareholders alone, and the bottom line of profit is not their ultimate aim or justification.  People succeed in business when other people want to do business with them.  When we speak of the worth or value of a business, we often refer to ‘goodwill.’  In substance that is the willingness of people to keep doing business with that entity.  That goes for fish ‘n’ chip shops, service stations, hairdressers and banks.
  11. We know that the term ‘goodwill’ can be difficult for accountants and lawyers, but most of those difficulties are avoided in public companies. A market value is put on each item of ownership of the company or each loan instrument that it issues as another way of raising capital.  In the result, the market sets one way of looking at the value of a publicly listed bank.
  12. That may lead to a sense of security in the directors of banks that is misplaced. How much actual goodwill do banks have with or from their customers?  How many of us enjoy doing business with our banks and want to keep going back to them?  In my experience, very few of us would happily say ‘yes’.  My impression is that the standing of banks with their own customers and with the community at large has been on the slide for at least two generations.
  13. On any view, the low opinion that most Australians hold about their banks should suggest to the directors of those banks that they have not been managing their business properly. Perhaps those directors might stop being sated by figures, even whoppers, and concentrate on intangibles.  In colloquial terms, there is more to being a bank director than counting beans.
  14. May I give an example of how distrust of the big four banks operates? My super fund is in part invested in four banks.  I only hold shares.  I will not deal in bonds, in part because I accept the advice of Mr Buffett not to invest in something I don’t understand, and in part because dealers in bonds seem to me to be the worst of a bad lot.  Nor would I go near bank hybrids.  Why not?  There is too much gobbledegook in the fine print, and frankly I would not trust one of the big banks to do what I would regard as ‘the right thing’ if things turned sour.
  15. As it seems to me, one fundamental question facing the directors of our banks is as follows. In the year of Our Lord 2018, can you acquit yourselves of meanness to your staff, indifference to your customers, and a failure to give back to Australians by saying ‘But we are making buckets of money’?
  16. There are many reasons why the duties of bank directors extend well beyond looking after the bottom line. As I mentioned, these banks are owned and guaranteed by millions of Australians.  They are protected by our government.  These facts of our communal life have allowed banks to lead a sheltered, even cloistered, lifestyle which may well have soothed their directors into apathy.
  17. But community attitudes to large corporations have changed in the space of one generation. The GFC properly put the fear of God into a lot of people, including me.  Many people, including me, are angry that more of the malefactors are not doing time for their role in bringing the whole world to the brink.  We were told that some of these constructs of greed were too big to fail, and that we, through our governments, had to intervene to save them.  For this relief, we don’t appear to be receiving much thanks.
  18. This apparent immunity of those directing what should have been failed businesses is another aspect of the lesion of inequality that corrodes our community. After the GFC, many people feared and distrusted big corporates in equal measure.  This fear brought to mind something that the late Mr Justice Smith told me about what ordinary people thought about judges.  His Honour said that the average bloke looked on judges as being not far removed from coppers – they were people who had power and who might, unless you were careful, do you some kind of harm.
  19. It’s not just that people pay less respect to big business – paradoxically, they now expect much more from it. We saw it with the willing participation of many corporations in the marriage equality debate (even if this was above the pay level of some of our thicker politicians).  We see it now in the guns debate in the U S where, as with climate change, some corporates are accepting responsibility for communal welfare, in default of decent government.  We can see it with the #MeToo movement.  Mark Shields of The Boston Globe (and PBS) said that corporates are learning that they can no longer be morally neutral.  I think he’s right and that the change is fundamental.
  20. And all that’s before you get to the legal obligations of banks as employers, and as institutions that hold positions of trust and confidence with their customers. Here, too, things are much in flux.
  21. About thirty years ago I was acting for a bank with the late Brian Shaw, QC in a matter that got to the High Court. I think it was one of those cases where a farmer had borrowed in Swiss Francs and taken a huge hit.  As best I can recall it, the trial judge had taken a shine to the cocky – but certainly not to us.  In talking with Brian, whom I greatly admired, I made a mistake that I wouldn’t make now.  ‘Brian, the banks get very jittery about being lumbered as fiduciaries.’  I got one of those angular, quizzical looks.  ‘Do they deny, then, Geoff, that they owe obligations of confidence and secrecy to their customers?’  That served me right for using a weasel word that is attractive to people who like going round in circles.  (And after all, even Swiss banks learned of the price they were paying for aiding and abetting crooks.)
  22. Two points come out of that case. The law says that directors and other employees owe their companies duties that are described as fiduciary – such as obligations of good faith, and avoiding conflicts of interest and duty.  The time is I think coming when that traffic will cease to be so one-way.  I am aware that there is some dispute about this in the cases, but I think that the arid rigour of the syllogism will soon surrender to what Oliver Wendell Holmes called ‘the felt necessities of the time.’
  23. One example might come when a bank learns that an employee poses an unacceptable risk as a predator to other employees. Another will surely come when the bank accepts that an advisory service it offers puts it, and its staff, in a hopeless position of conflict.  It is in my view likely that big corporates will find themselves under a legal obligation not to leave their staff compromised.  I will deliberately leave the language as loose as that.  The corporates are liable for the wrongs of their employees but, at least for the most part, the employee may have a personal liability to the victim.  There may also be an issue of moral responsibility.  People who think that the law has nothing to do with morals are dead wrong.
  24. There have already been marked changes in the general law relating to the duties of banks. Take the Swiss Franc cases in the eighties.  At one time or other, I acted on different sides while these cases were in vogue.  Customers of banks, many on the land, complained that they had been lured into borrowing in Swiss Francs by bankers who had not adequately explained the risks inherent in such a course.  Many of those borrowers got badly burnt.  They then sued the bank.  At bottom, one business person was saying to another: ‘When we entered into this contract, you knew more about this kind of transaction and the risks inherent in it, and because of your superior position, you owed me a legal duty to inform me of those risks before signing me up.  Had you discharged that duty, I would not have gone on with the deal.  It’s therefore only right that you should bear the loss.’  When such a proposition was first uttered, it sounded heretical – and not just as a matter of law.  Capitalism is built over the graves of dead competitors.  But most of the time, the farmer got up, either by verdict or compromise.
  25. There were I think two reasons for this. First, most litigation falls to be determined, thank heaven, by what lawyers call the merits.  If you go into a court room where a bank is confronting a man of the land whose life work it has written off in a deal that now looks as dodgy as Bitcoin, it will not be long before you detect which way the breeze is blowing in that court.  Banks rarely get to kick with the wind.  The best that they can do is take solace, if that’s the term, from the gorgeous nicety of the language of Lord Devlin.

The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that a rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

  1. Secondly, counsel for the farmer was often able to say to counsel for the bank, something like: ‘Having seen your branch manager’s diary notes, I have no doubt you will not be calling him to give evidence. Nor will your people want to see any of it on the front page of the local paper.  The poor bloke didn’t know what he was doing.  He wouldn’t know the difference between a Swiss Franc and a Swiss tart.’
  2. This kind of problem suggests a vulnerability of big corporates generally. Those at the top know how to look after themselves.  They are trained in various techniques involving what might be called massaging.  Those who actually deal with people over the counter are far more vulnerable.  As I indicated above, you can often see this if you get to talk to a fellow human at a bank.  You sense that they are all at sea as soon as they go off script about the ‘product’ that they are trying to flog.  I referred to some examples in my letters to Mr Clyne.  Such people could undergo real pain and cause real hurt to their employer in the witness box.  You don’t have to be a member of the Smorgon family to know that the bigger they are, the harder they fall.
  3. The late Neil McPhee, QC had a better nose for the currents of the law than any lawyer I have known. I was talking to him about the forensic susceptibility of the banks that had let people down, and he shared this insight with me.  ‘Geoff, I have been involved in a number of cases for and against banks.  I have examined and cross-examined economists and other experts about fluctuations in currency markets – what’s called volatility.  These experts have established, to my complete intellectual satisfaction, that there is no rational basis on which anyone, no matter how smart or wise, can predict fluctuations in currency markets.  But I cannot help thinking that many of the promotions of the banks to their customers are somehow premised on an implied assertion that some people can predict such fluctuations.  Any such assertion must be false.’  It seemed to me then, as it does now, that such an argument must have weight.  And woe unto the lawyers who are charged with framing, and then defending, the disclaimer.

They are the issues I would to raise for the consideration of this commission.  I am sorry that this letter is so very long.  I can only say that the issues appear to me to be of substance.

I hope that this commission will encourage the directors of banks to seek to recover the trust of their customers and the respect and decent careers of their staff.  Mac and Norma are long gone, but is it too late to aspire to the return of Miss Longmuir?

We may not get the Domesday Book from this royal commission – but neither will we need the great F W Maitland to decipher it.

Yours truly,

Geoffrey Gibson

14 Breakneck Road,

Malmsbury

Victoria, 3446.

  1. I am known to the commissioner, but I don’t think that fact precludes my making these comments to the commission.

ATTACHMENTS

23 March 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC.  8060

Dear Mr Clyne

SALES TEAM D

You don’t know me.  Neither do any of your employees.  Since you have been my banker for 60 years, I think that that is very sad.  Don’t you think that is very sad, Mr Clyne?

When I bought my present house, I was subjected to treatment by some of your operatives that in part caused me to write the attached paper on ‘The Decline of Courtesy and the Fall of Dignity.’  You will see that your bank has the misfortune there to be compared to Telstra and Qantas.  That is not good company to be in, Mr Clyne.  The part that really got me was the threat – that is exactly what it was – to pull the pin – that was the phrase – on a bank cheque.  Your staff could give a customer a heart attack threatening to do that to them on the day that they are settling on a house purchase.  A bank threatening to renege on its own paper?  It is hard to imagine a better example of how banks have lost their way – how once respectable business houses have now become unrespectable counting houses.

Being minded to move home, I thought I should confirm my leeway with your bank before making an offer.  I drew Sales Team D in the lottery.  I said I was happy to go to your Kyneton Branch and talk face to face, but, no, Sales Team D told me they were on top of my case.

Your staff can fill you in on the sad results, Mr Clyne.  I had to prove my identity – at least twice.  Sad after 60 years, is it not?  The property I am looking at is worth under half of a city property that I can offer for security.  The increase to the existing facility is modest.  For any bank that knew me as its customer, and wanted to look after me, the proposed transaction would hardly raise a query.  Not so with Sales Team D, Mr Clyne.  I was required to produce tax returns, and then told I would have to surrender one credit card and submit to a reduction on the remainder.  I began to feel for the people of Greece.  Now, Sales Team D wants to go beyond the tax returns, and I now have two accountants wondering just what has got into Sales Team D.

How would you or your fellow directors like it if they were treated like this by someone they have been doing business with for ten minutes, let alone 60 years?  In the course of more than 40 years’ legal practice, I have held various statutory appointments, including running the Taxation Division of the AAT, later VCAT for 18 years.  Some people – including Her Majesty the Queen in right of the State of Victoria – therefore felt able to take me at my word.  But not Sales Team D.  Do you know why, Mr Clyne?  My bank does not know who I am.

Perhaps they are worried about my recent expenditure on credit cards.  Let me assure you, Mr Clyne, so was I.  Very worried and very annoyed.  I bought a CLK Mercedes about six months ago at a very good price.  I just needed to extend a borrowing facility by six thousand to get the $26,000.  I got handballed around four operatives, having to prove my identity along the way.  I got referred to various teams.  Most asked my occupation.  (Sales Team D the other day asked if I was still a member of a firm I left about ten years ago and which ceased to exist the other day.)  I was told my case was difficult because the facility was secured.  Then I was asked to produce tax returns to support a request to extend a secured facility by six thousand dollars.  That is when I gave up, and used the credit card to buy the Mercedes.

I do not blame any of the few employees you have left.  They are trained – programmed – to be automated and not to think.  They also know that the market, which can never be wrong, values their contribution to the bank at about one hundredth of yours.

Do you know what I think, Mr Clyne?  George Orwell was wrong.  It is not big government that is tearing up the fabric of our community by Big Brother – it is Big Money, and Big Corporations.  I think that you and your fellow directors should be ashamed of yourselves.

If it matters, I hold shares in the bank, and I am not a happy shareholder either.

Yours sincerely

Geoffrey Gibson

 

3 April 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC, 8060.

Dear Mr Clyne,

SALES TEAM D

Well, they did it for you.  Sales Team D – may we just call them STD for short? – stopped me from buying the new home that I wanted.  It was not perfect – it was just ideal.  Ideal for me, Mr Clyne.  But, then, what is a mere home to someone like me to a great Australian banker?

How did STD manage to pull it off, you may ask, Mr Clyne?  Quite simply really.  They did not know me, and they did not know what they were doing.  This all became sadly but inevitably apparent when a roaming STD cell-commandant opened his phone talk with me after my first letter to you with the gambit that my problem was that I had overstated my income.  Really, Mr Clyne, your attack-dogs and flak-catchers would want to be on the highest level of dental insurance if they want to go around behaving like that.  No wonder you forbid them to meet your customers in the flesh.

But I suppose that the ADs and FCs of STD kept you safe from my letter.  You would prefer to stay like Achilles gleaming among his Myrmidons, except that you would not stay sulking in your tent – no, you would be glowing over all that lucre.

You and the people at STD are a real threat to business in this country, Mr Clyne.  You should be helping the flow of capital.  The big Australian banks are doing just the reverse.

And you should really stop those ads that tell the most dreadful lies.  Lies like your people are free to make decisions, or that the big banks like competition.  Nothing could be further from the truth, Mr Clyne.  The people at STD know that they are forbidden to think, much less make decisions, and STD shut up shop completely, and have been in a surly sulk ever since I told them I was talking to another bank.  (Although they did ring the other bank to inquire – without my consent – about what I was doing.)  The major Australian banks are just a collusive cartel operating sheltered workshops that rely on the people of Australia to bail them out whenever they balls it up – and then they pass on their guilt and paranoia to those same people by refusing to lift a finger for their customers when they need a bank.

Those people do not hold your staff responsible for the shocking fall in the standards of our banks, Mr Clyne.  They hold you and your like responsible.  You do after all get paid about one hundred times as much as the folk of STD.

If you and your board step outside your cocoon of moolah, minders, and sycophants, you will not find one Australian – not one – that has a kind word for any of you.  What all those people should do to the big banks is to take their business elsewhere.  That is what I will do.  You never know, Mr Clyne, I may meet a real person in the flesh, one who might know what they are doing, and who will even know who I am.

Yours sincerely,

Geoffrey Gibson

No answer came the firm reply.

Us and the U S – Chapter 12

Us and the US

[The extracts that follow under this gravely ungrammatical title précis a book published in 2014 called ‘A Tale of Two Nations; Uncle Sam from Down Under’.  That book sought to compare the key phases of history of the two nations under fourteen headings.  That format will be followed in the précis.  The chapter headings are Foreword;1 Motherland; 2 Conception;3 Birth; 4 Natives; 5 Frontiers; 6 Laws; 7 Revolution; 8 Migration; 9 Government; 10 Wars; 11 Patriotism; 12 Wealth; 13 God; 14 Findings; Afterword.  Each chapter is about 1400 words.]

12

Wealth

The United States was commenced by deeply religious people.  Americans know that ‘it is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God’, but some things require mature judgment and discernment before being applied to life here on earth.

Both the first colonists and the later waves of settlers and migrants went to America to create wealth.  Government at either end was not part of the business.  America was the primal NGO.  Australia was very different.  In the beginning it was the definitive not-for-profit operation, a jail.  The colonies in Australia were closely regulated by military delegates of London and then colonial legislatures.  Government intervention was both thorough and inevitable.  Most importantly, most people coming to Australia did so at the cost of government.  Government therefore played a far bigger role in public life in Australia.  It’s rare to see government creating wealth; that’s not its job.

There was and is a much greater emphasis on individual effort and reward in the U S.  There was correspondingly much more reliance on government intervention and protection in Australia.  The Americans have stronger notions of legal protection of civil rights in general; the Australians have stronger notions about the legal regulation for the distribution of wealth.

The agricultural resources were much better in the U S and small farmers could and did flourish.  There was more water and good soil in the U S.  Government in both London and the colonies sought to encourage a yeoman type of small farmer in Australia, but conditions there did not suit that development.  In the south and east in the U S, wealth was concentrated in tobacco and cotton, built on cheap land and the free labour of convicts and then slaves.  Throughout the rest of the country, the sources of wealth were more evenly spread, except that the north-east was heavily focussed on industry, enabling the U S to become the arsenal of the free world.   In Australia, wealth was concentrated on wool at first, that was initially also built on cheap – free – land and the free labour of convicts, and from there the transition would go to gold and then to minerals generally.

In America, people tend to admire those who succeed financially – that is, after all, the whole bloody point.  In Australia, people lean to a kind of suspicion informed by envy of people who get very rich.  They do not believe that people get very rich honestly; they do in truth see the very wealthy, especially the quick or new ones, as crooks; at the very least, they think that these people will not have paid tax, and so they have got where they have unfairly.

America and Australia are capitalist countries.  That is to say, they believe that business and the creation of wealth should be left to business people, and not to government.  These business people are what we call entrepreneurs.  The driver is competition.  The impression you might get is that the Americans are more ready than Australia and others to apply the logic of competition in capitalism – the prize goes to the winners, and the others are thanked for taking part.

Both countries have had to deal with unhealthy aggregations of wealth.  The Australians had to deal with splitting up the unduly and unfairly large holdings of the squatters, but the attempt to set up a ‘yeoman’ type model of farming failed.  America pioneered laws to break up combinations or trusts that were intended or likely to stifle competition.  These laws are known as anti-trust or competition laws, and Australia has adopted the U S model.  The common law recognises that you can start up in business with the view to wiping out the competition that you find already there –and in applying anti-trust laws, the courts recognise that competition is naturally ruthless – competitors are in one sense engaged in trying to lessen and therefore ‘injure’ the business of each other.  The balance is very fine.

The Australian government intervenes with the distribution of profits by providing binding adjudications on wage issues.  Here Australia does things that would be unthinkable in America.  It has for more than a century settled industrial disputes by making decisions that are given the force of law putting a floor under wages across various industries across the nation.  It has been able to do this because trade unions in Australia have a legal definition and protection, industrial bargaining power, and community tolerance if not respect that they do not have in America.  This in turn has, as it did in England, helped the Labour Movement, as it is called, to maintain a political party.

The sustained and broad intervention of government in industrial relations, the strength of the unions, although now declining, and the presence of a political party with at least an historical tie to the workers, all represent very big differences in the lives of the working people, and the political outlook generally, in Australia compared to America.  If, as most believe, Americans have to work harder and longer for their wages, at least some of the reasons might be found in this different industrial background.

To what extent then should it the Australian government intervene to look after those of its electors who have not done so well and who might fairly be said to need if not deserve help?  Should government adjust the means of some to meet the needs of others?  However you frame the issue, or the criteria for its resolution, the kind of answer that you have got so far in the U S has been very different to that which you get in Australia, Britain, Germany, France, or the rest of Western Europe.  Its agonies over health care now make the point.

The English Welfare State followed similar progress in Germany; New Zealand and Australia were already going the same away; but the wording of section 8 of the U S (‘Congress shall have Power to lay and collect Taxes….to provide for the ….general Welfare of the United States’), has produced nothing like those consequences in America.  When it comes to welfare the U S is the lone state in the Western world.  Like ‘tax’, ‘welfare’ is not a word used in polite company.

Australia has, unusually, gone one step further, almost on its own.  If you combine the last two tendencies that we have been looking at – regulating the distribution of wages and providing for the aged and sick – you get in Australia a universal system of compulsory superannuation.  Employees of all kinds have to put away a percentage of their wages to secure their life when they stop work.  The system has its burdens and its wrinkles, but it is described by some qualified people outside of it as a model for others.

They are the main differences between America and Australia on wealth.  The discussion shows that the terms Right and Left are passé, and that an injunction to provide for ‘Welfare’ may produce a result that makes no sense to others who think they have it – it also shows that old fashioned terms like liberalism, socialism, nanny state, free choice, individualism, or entitlements may not advance the discussion one iota.  Sticks and stones will break your bones, but welfare requires taxes; labels, slogans, and nostrums do not make policy, and they make bloody awful politics.  The inheritors of the empirical tradition are better off working with results rather than with formulae, with experience rather than with theory, and with the world as it is rather than with a Dreamtime or Fantasyland.

Here and there – What is fascism?

 

Some years ago, I sought to identify the range of meaning of three terms or labels commonly used in political discussion as follows.

Left and right

I do not like and I try to avoid these terms, which come from the French Revolution, but I shall set out my understanding.  The ‘left’ tend to stand for the poor and the oppressed against the interests of power and property and established institutions.  The ‘right’ stand for the freedom of the individual in economic issues, and seek to preserve the current mode of distribution.  The left is hopeful of government intervention and change; the right suspects government intervention and is against change.  The left hankers after redistribution of wealth, but is not at its best creating it.  The right stoutly opposes any redistribution of wealth, and is not at its best in celebrating it.  The left is at home with tax; the right loathes it.  These are matters of degree that make either term dangerous.  Either can be authoritarian.  On the left, that may lead to communism.  On the right, you may get fascism.

Fascism

What do I mean by ‘fascism’?  I mean a commitment to the strongest kind of government of a people along overtly militarist and nationalist lines; a government that puts itself above the interests of any or indeed all of its members; a commitment that is driven by faith rather than logic; with an aversion to or hatred of equality, minorities, strangers, women and other deviants; a contempt for liberalism or even mercy; and a government that is prone to symbolism in weapons, uniforms, or its own charms or runes, and to a belief in a charismatic leader. 

The word came originally from the Latin word fasces, the bundle of rods and axe carried before Roman consuls as emblems of authority, and was first applied to the followers of the Italian dictator, Benito Mussolini, Il Duce, and then to the followers of Il Caudillo, Generalissimo Franco, and the Fuhrer, Adolf Hitler.  Fascists are thick-skinned, thick-headed, and brutal.  They despise intellectuals – who are after all deviants – but they may have an untutored and irrational rat cunning.

As Professor Simon Blackburn of Cambridge University tersely remarks: ‘The whole cocktail is animated by a belief in regeneration through energy and struggle’ (kampf).  To an outsider, it looks like pure moonshine that is the first refuge of a ratbag and a bully, a brilliant and seductive toy for the intellectually and morally deprived, and an eternal warning of the danger of patriotism to people of good sense and good will.  But while that ‘cocktail’ may look a bit much for Plato, it looks fair for Sparta.

Madeline Albright has written a book warning against a resurgence of fascism.  Eastern Europe looks very bleak.  You can make up your own mind about the application of those criteria to Trump.  To me it looks a very close run thing.  I am sick of hearing about him.  I merely say that since Hitler died before I was born, Trump is the leading contender for the prize of the man most loathed on this earth during my lifetime.

I want to invite people to apply those criteria to Napoleon.  Again at first blush that, too, looks close.  Let me just quote some passages from a biography by the distinguished English historian J M Thompson.

Napoleon’s forays into Italy and Egypt were little more than robbery on a grand scale.  He wanted to fund the rape of Egypt by robbing the Swiss.  On the war in Italy, Napoleon said:

Discipline is improving every day, though we still have to shoot a good many men for there are some intractable characters incapable of self-restraint.

You may recall that his political career took off when he used artillery to disperse a Paris mob – Carlyle’s ‘whiff of grapeshot.’  Throughout his career, the Corsican was profligate with French life – something that scandalised his Grace, the Duke of Wellington.

Asians got it worse.

The Turks must let their conduct be ruled by extreme severity.  Here at Cairo, I have heads cut off at the rate of 5 or 6 a day.  Hitherto, we have had to treat the people tactfully, in order to destroy the reputation for terrorism which preceded our arrival.  But now we must make sure that the natives obey us; and for them obedience means fear.

Could Hitler have improved on that descant?

Each stage or coup in the rise of Napoleon in France involved a franker appeal to force.  Abroad, the urge for conquest was insatiable.  His nationalism was only matched by his egoism.  He said that he had made Italy a part of France.  Madame de Staël had his measure.  ‘The English particularly irritate him, as they have found the means of being honest as well as successful, a thing which Bonaparte would have us regard as impossible.’

In his 2014 book Napoleon the Great, Andrew Roberts said that Napoleon was great.  This to me is like the myopia that leads Oxbridge to say that ancient Greece and Rome were civilised.  He committed France to eternal war (la guerre éternelle) and then he lost that war.  He left five million dead in the process.  He left France a smoking rubble that it took France at least a century, and endless coups and revolutions, to come out of.  And, fatally to the reputation of any soldier, he walked out on his own army – twice.  And the only reason that Napoleon and his spurned soldiers found themselves in the sands of the Levant and the snows of Russia was his manic lust for la gloire.

But at least he had one clear policy.  Make France great.  And he then ruined the joint.  As they say there, plus ça change, plus c’est la même chose.

Passing Bull 156 – Best on ground

 

Have you noticed how football commentators tend to give their votes for best player on the ground to someone who played on the winning side?  There is no reason in logic why this should be so.  There is a related trait of the commentators.  Their after game analysis is dominated by the result.  They show two traits of so much history – it is written by the winners, and it is written with hindsight.  You are generally left with the impression that the game was never going to end in any other way.  That is of course silly, but the favouring of votes to players from the winning team is scarcely less silly.

The issue came to a head after the recent three match State of Origin series.  Three judges – all former great players – awarded the Man of the Series to Billy Slater, the Captain of Queensland, and by common consent one of the greatest players this code has seen.  (I should disclose my biases.  Billy plays for my team, Melbourne Storm; I loathe New South Wales in rugby league; and their coach justified that loathing by an inane, crude, and false insult to Cameron Smith, the Storm Captain, and former Queensland and Australian captain, one of the best footballers of may code that this nation has produced.)

This decision in favour of Billy Slater was denounced in sections of the press as insane.  There were two grounds for the accusation.  Billy had only played two games; and his side lost one of them.

Well, the three judges – Mal Meninga, Darren Lockyer, and Laurie Daley – have more knowledge of the game in their little fingers than the entire sports press corps – who in this case merely underline the fallacy that the nest on ground must – must –come from the winning side.

Some statistical genius might look at the extent to which this fallacy affects voting for the Brownlow Medal.

Us and the U S – Chapter 11

Us and the US

[The extracts that follow under this gravely ungrammatical title précis a book published in 2014 called ‘A Tale of Two Nations; Uncle Sam from Down Under’.  That book sought to compare the key phases of history of the two nations under fourteen headings.  That format will be followed in the précis.  The chapter headings are Foreword;1 Motherland; 2 Conception;3 Birth; 4 Natives; 5 Frontiers; 6 Laws; 7 Revolution; 8 Migration; 9 Government; 10 Wars; 11 Patriotism 12 Wealth; 13 God; 14 Findings; Afterword.  Each chapter is about 1400 words.]

11

Patriotism

In his first campaign for election as President, Mr Barack Obama was criticised for not wearing the badge of his flag.  Someone even queried his patriotism.  An Australian politician wearing a flag in his lapel would be open to a comment that would not be flattering; but it would be out of the question to criticize one for not doing so.  Such a comment would not just be in bad taste –it would be evidence of madness.  Members of the current government (2014) from time to time get exercised over a lack of empathy from the national broadcaster, the ABC, as if the ABC were being unpatriotic in criticising its employer; but sane Australians regard that silly kind of political posturing as bullshit.

Most people in Australia understand the word ‘patriot’ to mean someone who loves their country and is loyal to it.  Australians do not use the terms Fatherland of Motherland; neither did the English; those words make both lots uneasy.  The Oxford English Dictionary suggests that something more is required of a patriot than passive loyalty.  It says that a patriot is ‘one who exerts himself to promote the well-being of his country; one who maintains and defends his country’s freedom or rights.’  To be a patriot, you have to get off your backside and do something – this then raises the spectre of the busybody.

A love of your country presupposes that you know what your country is.  What was the Motherland of a fifth generation colonial family in Boston in 1760?  America as nation had not yet been invented, and even when it was, a lot would regard their first loyalty as that owed to the colony or state.  The question can also arise when there is a change in the regime of the country that is loved, as for example when the king loses his head.  Citizens of Paris in 1760 knew that France was the mother country – la patrie – and that King Louis XIV represented France.  But what was the case after the king had been guillotined and the monarchy had been abolished?  Were you loyal to la France or la patrie?  But if you said either, and you were allowed to get away with saying that and no more, you could be saying that you were loyal to the Republic – or that you remained loyal to the monarchy.

So, questions about patriotism arise where there is a regime change in the nation that is loved.  Those become life or death questions when the title of the new regime is shaky because it came into power unlawfully – and by definition, a revolution, a change of regime wrought by violent means, is not lawful.  So, people in a revolution get quizzed about their patriotism.

The British crown was overthrown in America in the course of a revolt that might now be called a terrorist insurgency.  If the revolt had failed, and if there had been no change of regime, its leaders could have been executed for treason.  They understood this.  When the Declaration was signed, Benjamin Franklin said: ‘Well, Gentleman, we must now hang together, or we shall most assuredly hang separately.’  At the end of the Civil War, many in the North wanted to hang Jefferson Davis and Lee.  Their ‘crimes’ were of the essence of treason – they had sought to overthrow the republic of the United States by force.

That kind of insecurity of title has not been a problem for the U S – after they won the war of independence, they won the recognition of the Union, and a lot of the supporters of the old regime left to go ‘home’.  But it kept flaring in France after the death of the king, and it led to instability for about a century.  The government said that la patrie est en dangère [the Fatherland is in peril], but this came to mean in the Terror that those in power were feeling lethally insecure.  They then executed people who threatened their security.  You were not a true ‘patriot’ if you were against ‘the Revolution’, and you were against the Revolution if you were opposed to those who constituted its most recently formed government.

In this way, ‘patriotism’ very quickly became opposed to ‘liberty’ – the first refuge of any government seeking to reduce the rights and liberties of its subjects is to claim that the nation is in danger.  The shorthand now is ‘national security.’  You will even find national security being invoked against refugees.  Simon Schama referred to ‘the problematic relationship between patriotism and liberty, which, in the Revolution, turns into a brutal competition between the power of the state and the effervescence of politics.’

But one problem did remain in the United States.  When everything had settled down, you might be from Virginia and the U S, but if there was a conflict, with whom did you side?  This had not crystallised as a problem for Washington.  Like most Americans at his level in, say, 1760, he was ambivalent about England and its crown and institutions.  He had repeatedly sought a commission in the imperial force, but the Horse Guards, the relevant HQ, had no regard for colonials, from America or India.  But for this snobbery, the allegiance of Washington, and history, may have been different.

But this was a problem for Robert E Lee.  He held a commission from the Union, that he had served for more than thirty years.  Was he to turn his troops against his home in Virginia?  Where a professional person is torn between competing interests, then, if a duty is owed to both, the law says that that person should serve neither.  That was not the option chosen by Lee.  Lee himself cited Washington’s withdrawal of loyalty to Great Britain as ‘an example not branded by the world with reproach.’  Lee’s choice baffles many today and was a reason why many Americans wanted him hanged.

Australia never had a revolution, and that may be a reason why patriotism is not discussed there.  De Tocqueville summed up patriotism for Americans.  ‘But I maintain that the most powerful, and perhaps the only means of interesting men in the welfare of their country, which we still possess, is to make them partakers in the Government…….in America the people regard this prosperity as the result of its own exertions; the citizen looks upon the fortune of the public as his private interest, and he co-operates in its success, not so much from a sense of pride or duty, as from, what I shall venture to term, cupidity’.  Cupidity might be greed, as in the famous ‘Greed is good’ of Gordon Gekko.

De Tocqueville also said:  ‘As the American participates in all that is done in his country, he thinks himself obliged to defend whatever may be censured; for it is not only his country which is attacked upon these occasions, but it is himself…..Nothing is more embarrassing in the ordinary intercourse of life than this irritable patriotism of the Americans.’  There you have Donald Trump.

There is something close to the heart of America here.  The upside is ambition, drive, and personal and communal responsibility; the downside is Salem, McCarthy, Ronald Reagan, and Gordon Gekko – and that nonsense about the lapel pin of Barack Obama.  In some sense, the feeling of communal responsibility and participation does seem to rest well with American patriotism; so does their prickliness if you happen to query in passing something close to American hearts.

Australians are not so serious about all this kind of thing, and open discussion, much less profession, of patriotism is not encouraged.  If they see it in Americans, they might mumble something about people wearing their hearts on their sleeve

Here and there – Jeffrey Smart

Jeffrey Smart has something in common with Louis Armstrong.  He has his very own style and it is instantly recognisable.  Not many artists achieve that distinction.  But Smart is different to Nolan, Boyd, and Williams.  They taught us how to see and come to terms with the bush.  Smart taught us how to see and come to terms with the city.  In something of a manifesto, he said in 1968:

I find myself moved by man in his new violent environment.  I want to paint this explicitly and beautifully.

Some styles become outmoded for the artist’s message.  (If he has a message.)  But how would Bonnard paint a Hilton Hotel bathroom?  How wrong a jet plane or a modern motor car looks painted impressionistically!

A man is logical on horse-back: but in a satellite, surreal.  Only very recently have artists again started to comment on their real surroundings……

Security?  The bomb?  How much more insecure Fra Angelico must have felt riding to Orvieto with the threat of outlaws, robbers, and the plague.

Smart was born into a comfortable part of Adelaide in 1921.  He was obsessed with drawing as a child and the technique that he acquired would always be central to his painting.  While serving in a number of jobs, including the part of Phidias on The Argonauts on the ABC, he acquired a full education in art, most noticeably from an Adelaide lady called Dorrit Black.

She began with the geometric method for establishing the Golden Mean….This was a positive eye opener, and she linked it with compositions by Poussin, Tintoretto, Veronese, da Vinci and so on.  And it all related so clearly to Braque, Léger, and above all to Cézanne.

We see immediately how important this teaching was to the structures in Smart’s mature paintings.  He was very taken with the light and sense of place in Piero della Francesca, but Cézanne would remain his champion.

Like many Australian artists back then, he really got going in trips to Europe.  He studied with Léger for a while in Paris, and his early work shows some influence of de Chirico.  Smart said of him: ‘There is an element of the naïve in him, his perspective distorted without a care in the world while Cézanne agonized over the same thing.’  Smart would later say that his later paintings are better than his earlier ones partly because until he was forty-one he was working at other things to earn a living.  Someone said that post-modernism was like playing tennis with the net down.  That could never be said about Jeffrey Smart.  He had a life-long commitment to the high technique derived from the masters over the ages.

Peter Quartemaine says:

When a painting is ‘right’ it has for Smart a stillness, that quality he so admires in artists as diverse as Balthus, Poussin, Mondrian, Braque and Ben Nicholson.  He himself turns to T S Eliot for the best expression of what this stillness means in the work of art, a passage from Burnt Norton which he feels hints at the greater accessibility of the visual arts as vehicles of meditation compared with music or literature.  ‘At least, we do abolish time.’

…….Only by the form, the pattern

Can words or music reach

The stillness, as a Chinese jar still

Moves perpetually in its stillness.

Smart recalls in this connection reading a critical account of a Cézanne landscape as ‘nature in arrested movement’, where the critic assumed that the stillness came from the peacefulness of the original scene.  He insists that in Cézanne, as with Eliot’s Chinese jar or a perfect composition such as Guernica, the stillness comes from ‘the perfection of the design alone.’…..Eliot’s mature work, especially Four Quartets which has influenced the artist profoundly, is an expression of hard-won faith in the world and in the value of artistic endeavour.

Smart would later recall that Dorrit Black spoke of ‘making a picture’ rather than ‘painting a picture.’  Léger suited his preoccupation with geometric shapes.  ‘I paint buildings a lot because they are rigid shapes…they go straight into the picture plane – they make a space, a box, where you want it.’  He said that Piero della Francesca and Cézanne had taught him how to compose.  He was engrossed by The Flagellation and the Gilles of Watteau (which is referred to in his painting Dampier III).  He surrounded himself with reminders.  One said that ‘an artist must himself be moved if he is to move others.’

Germaine Greer said:

Many observers, hypnotised perhaps by the occasional human figures isolated in a man-made environment in Jeffrey Smart’s work, have been struck by its mystery and ambiguity…..There are few artists who can provide the shock of recognition and they are all great.

The rest, as someone said, belongs to the madness that is art.

Passing Bull 155 – Civility

 

Many people are commenting on the decline in civility in public life here and elsewhere.  It has coincided with the rise of nationalism and disenchantment with a broader world view, but that does not of itself establish a causal connection between those two events.  It is however tempting to speculate whether people who want to withdraw unto themselves may not be so good in dealing with those people that they want to lock out.  However that may be, it is unsettling, to put it at its lowest, to hear Republicans complain about a restaurateur declining to serve a senior White House staffer on the basis of what may be called a conscientious objection.  Does anyone believe that the President of the United States is a model of civility?  And what happened to freedom of speech?

Fringe dwellers test laws.  This presidency now reveals another oddity, if not flaw, in the United States constitutional dispensation.  They subscribe to the separation of powers.  The executive, legislature, and judiciary have separate functions.  The legislature makes laws – not the executive or the judiciary.  Well, we know that the judiciary makes laws de facto, and this president is fond of issuing edicts, but by and large the separation holds.  The U S constitution gives the legislature no power to make laws about abortion.  But we see elections of the President (the executive) being contested on his capacity to appoint members of the judiciary who may change the law on abortion by refusing to follow a precedent.  That doesn’t look healthy, least of all in a nation that claims to keep separate Church and State.

Bloopers

Speaking on ABC Radio Sydney on Monday evening, Leyonhjelm said there was no need for him to apologise.

‘If she chooses to take offence, that’s her business,’ he said.

‘[The comments] weren’t intended to be offensive … I was discussing the issue of misandry.’

Pressed by host Richard Glover as to why he had attacked Hanson-Young personally, Leyonhjelm said: ‘I don’t accept the premise of your question that I’ve done anything to her.’

He denied he had discussed the Greens senator’s sex life.

‘You’ve got a fertile imagination. All I did was point out she’s got boyfriends,’ he said.

The Guardian, 3 July, 2018.

It’s sad when someone is that thick.  But at least he and Rowan Dean and Ross Campbell give insight into why people like them want to be free as matter of law to insult and offend other people.