Passing Bull 256 –Unexpressed assumptions

Sometimes you see an argument or comment that is based on an assumption that is not express – what is elsewhere called an ‘inarticulate premise.’  In the press the other day, the following appeared:

The orthodoxy that Joe Biden’s executive team will make Australia comfortable is spectacularly wrong in one respect: the appointment of former secretary of state and presidential nominee John Kerry as special envoy for climate.

There is one certainty.  Kerry will create problems for Australia and the Morrison government as a consequence of his brief from the incoming president…..

It will be Kerry’s rhetoric, his symbolism and his close ties with Europe on climate change that will put inevitable pressures on the Morrison government.

The writer says that Kerry will create problems not just for the Morrison government but for Australia.  It follows that for this purpose at least, the writer sees the interests of the Morrison government being identical to those of the nation of Australia.  Kerry is far more in favour of real action on climate change than the Morrison government. The unexpressed assumption is that this will be bad for Australia because of the pressure Kerry will put on its government – in of course the name of the United States.  But what if you think that our governments of all colours have done badly on climate change and should do a lot more?  If you hold that view, the appointment of Kerry does more than give comfort – it is cause for celebration.  And recent events in New South Wales suggest that a real majority of Australians have that view.  The report merely records the prejudice of the writer and the paper.


‘I have spoken often about doing business responsibly, including about these failings, since earlier this year. I am determined we have a leadership position and hold ourselves accountable in this regard,’ he said.

ABC NEWS 26 November, 2020, Andy Penn, CEO Telstra.


The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

There’s more to history than ‘accidental judgments and casual slaughters.’  It is the story of life and my life at least would be useless without it.  There are two things to remember.  First, history is a collection of biographies.  Secondly, the better the story is told, the better we can follow it.  Let me give examples from two new biographies that I am currently (October, 2020) reading – Haldane, by John Campbell, and Hitler, Downfall by Volker Ullrich.  When in second year law, I decided to concentrate on French and Russian biographies and legal history, I think the first book I read was a biography of Lord Haldane – who was a lot more than a lawyer and Lord Chancellor.  He was – wait for it – a philosopher.  He had studied in Gottingen as well as Edinburgh.  He claimed to understand Hegel – and very few people – let alone an English lawyer – have tried that one on.  (Kant must have seemed a breeze after that.)  In The Philosophy of Humanism, he said ‘It is in the quality of the struggle to attain it, and not in any finality we suppose ourselves to have reached and to be entitled to rest on, that truth consists for human beings.’  English lawyers don’t talk like that – neither do English philosophers.  Haldane said about Adam Smith that he ‘had a perception that abstract propositions, however carefully stated, can express only one aspect or side of things, and are therefore wanting in truth, a quality that belongs to what is concrete alone.’  That statement might be said to represent the upshot of English philosophy for that century.  The author refers to Haldane’s ‘ability to hold a range of opinions in harmony’ – the hoped for benefit of a liberal education.  Haldane was in government with giants – Asquith, Lloyd George, and Churchill – that now leave us feeling glumly small.  He was of course on first name terms with Einstein, Keynes, Laski, and Russell.  And Natty.  Nathaniel Rothschild.  Disraeli may have advised him that if you want to run an empire, it helps to have an in with the Rothschilds.  You never know when the Crown might need fast cash in steep amounts.  Like when the Empress of India picked up the Suez Canal.  Haldane was instrumental in arming England for the Great War and he laid foundation stones for MI5, MI6, the LSE, Imperial College, and the ‘redbrick’ universities.  And with Asquith, Lloyd George and Churchill, he launched the Welfare State in England.


Now, from the second book comes hubris touching on madness.

‘It will be a mass attack in the grandest style,’ Hitler and Goebbels agreed.  ‘No doubt the most enormous that history has ever seen.  The example of Napoleon will not be repeated.’  The dictator and his propaganda minister did not find it at all ominous that the start of Operation Barbarossa fell on the same day that the French emperor had crossed the river Neman with the Grande Armée 129 years earlier.

That was on 24 June 1941.

‘Our situation bears a horrible resemblance to that of Napoleon in 1812’, the tank group commander Colonel-General wrote on 12 December.  ‘The Russians were right that the winter put a halt to us.’

Hitler was infatuated with Wagner’s Gotterdammerung, The Twilight of the Gods, but he was the sole author of his own demise.  The Russian resistance was demonic because the master race was engaged in a war of annihilation.  Then after Pearl Harbour, Hitler declared war on the United States.  He told Goebbels the U S posed ‘no acute threat.’

They cannot change anything about the situation on the Continent.  We are sitting secure in Europe, and we are not going to let the reins be taken from our hands.

For the second time in history, the Russian peasant soaked up the evil coming from Europe with their blood.  This whole chapter is almost unbearably brutal.  About twenty million Russians would die in the conflict – about seven million of them were civilians.  Slavs were as disposable as Jews.  ‘This gigantic expanse must of course be pacified as quickly as possible, and this can best be achieved by shooting everyone who even looks at us the wrong way.’  The Nazis subjugation of the Russians would make the Spartans treatment of the helots look benevolent.  Only God could assess the degrees of evil.  The next chapter is ‘The Road to the Holocaust.’  In my view, anyone claiming to be civilised needs to come to terms with evil.  To understand humanity, you need to try to understand inhumanity.


In 1985, the Victorian government briefed me to draw up a bill for an act of parliament.  It was, I think, the first time that the government had gone outside for the work ordinarily done by parliamentary counsel.  The subject might fairly be said to have been tricky.  This was a Labor government led by a prominent Labor lawyer, John Cain, that was proposing to legislate to bring under the control of government all fees charged by lawyers.  For obvious reasons, some care would need to be taken in framing this law.  People had to be free to contract out of the law – as you would expect – and it would be scrutinised by some of the best legal minds to see how the law might be complied with – or avoided.  This was at the time when ‘plain English’ drafting was in vogue – and gender neutrality was politically mandatory.  It was not easy trying to comply with the various wishes of government.  On one occasion I told them that they might have a choice – did they want something that might look pretty – or something that didn’t look so good but had a sporting chance of working?  I found the whole exercise to be very enlightening.  It meant that I had to be very careful that any preconceptions I had – and it would be odd if I had had none – did not interfere with my work.  I was there to give effect to the wishes of the client – no matter what I personally thought of those wishes.  In other words, I had to be intellectually honest.  This was a good experience to have for drafting generally.  The work was a bit harder then – before computers made drafts so malleable – and it taxed my then secretary mightily.  I was just about to sign off when the government lost interest and called the project off.  I gather that what was called ‘the big end of town’ – quite possibly in the form of Alan Cornell, the man about to be become the senior partner of Blake & Riggall – had persuaded Mr Cain and others that this kind of government imposition might be bad for business – and not just the business of lawyers.


In 1985, the year I turned forty, some kind of mid-point, I suppose, I took two decisions that changed the whole shape of my career and life.  One was to accept appointment on a sessional basis to run the division of the tribunal that the Victorian government was setting up to hear and determine state tax cases.  The other decision was to leave the bar and go back to Blake & Riggall, which I was aware was likely to merge with Dawson Waldron in Sydney.  Things change.  Before I went back to Blakes, I insisted on meeting all the partners – then about eighteen, I think.  When I left the merged firm of Blake Dawson in 2002, it had about four hundred lawyers all round Australia and in England.  That was about the number of lawyers at the Victorian bar when I first signed on in 1971.  Now (October, 2020) there are about 2400 at the bar – subject to the ravaging by the Covid virus.  The two moves were related, and I have been very fortunate with that relation.  I had decided that I did not want to go the bench – which at that time was the ultimate object of most barristers of merit.  (That is no longer the case.)  But being appointed to a tribunal, to hear and determine cases that involve seriously fine legal issues, meant that I could in my own time, more or less, experience just how that kind of forensic inquiry works.  It throws great light not just on how advocacy from the bar table leads to adjudication from the bench, but on your whole understanding of the law.  And going back to the other side of the profession also completely alters your outlook on the legal world.  From spending so much of your time resolving conflict, you can use your knowledge of the law and people to help them come together – with a view to avoiding conflict.  It’s like going from negative to positive.  And the two changes blended so well to change my outlook and life.  I was very fortunate.  Each move led to a change of aspect that any trial lawyer would derive great learning from.  If travel broadens the mind, so does a simple change of course – especially a change of hemisphere.


The new Tax Division of the AAT inherited a back-log from its predecessor in 1985.  It took about six months to clean that up.  From then on, I could manage the list as I wished.  State tax cases are not like federal cases- which often involve shockingly complex legislation and equally complex schemes to get around it.  State tax cases often involve easy looking questions that can be very hard.  What is a debenture?  What is a covenant?  What is a charity? What is a contract of employment?  When does a contract for the sale of land become binding?  What kind of breach of contract enables the other side to walk away?  There were two issues in getting the new tribunal working in this area.  One was that the legislation setting up this new role for the AAT was part of a whole new package of reform of administrative law that greatly improved the rights of people in dealing with their government.  But there were old cases, some in the High Court, that gave revenue officers the chance to argue that the new dispensation did not apply to tax.  The results appalled a common lawyer like me, but it took three or four years of very hard grind to pull them around.  On some occasions, the atmosphere got very tense.  More than one tax commissioner sent a heavyweight silk down to say that I had not understood their practices and that I had said things that had sadly offended them.  On one occasion I had to get the Solicitor-General, Hartog Berkeley, QC, to tell them to pull their heads in.  They gradually came around, and this was I think a reform that worked.  The other problem came from the prevailing attitude to the conduct of litigation.  This was in the era (1985 plus) where the new regime of the court control of litigation was coming to new heights.  I thought this practice was making the process a lot more complicated and expensive, and using up so much time of both judges and lawyers.  Instead of judges doing so much to orchestrate a process, I thought they should get the parties into the ring for trial as soon as possible, and then control the hearing very firmly.  After a year or two we got the following model.  The Crown would refer its disallowance of an objection to an assessment to us.  I would say that we would resolve it within six weeks.  I would fix a hearing date in about four weeks’ time.  There would be no prior hearing or directions or witness statements.  We would usually finish the hearing before lunch.  If necessary, I would fix times for the examination of witnesses and submissions.  I would try to give my decision on the next working day.  We applied that model to most cases for about fifteen years.  A lot of lawyers grizzled, groaned, protested, and appealed.  I never heard a complaint from a litigant.  The Crown appealed as of course and as of right almost every case they lost.  They had a legitimate interest in getting a ruling from the Supreme Court.  In the end, three of mine were dealt with by the High Court.  I have never understood why decent judges get so uptight about what happens on appeal from them.  It never troubled me.  As often as not, I did not even get to hear to hear about it.  I was intent on expedition – fairness, of course, but at a properly controlled speed.  Lord Mansfield knew the truth.  Most delay in litigation comes from the lawyers.  No litigant with a good case wants delay.  Delay suits those with power and wealth.  In 1215, the English Crown acknowledged that justice delayed is justice denied.  In my, view the fall from grace of our trial lawyers and systems has come from our failure to deal with delay.  It is partly a failure of nerve and partly a sustained flirtation with the inquisitorial – which as a matter of simple but long history is not the way we practise the law.  Well, all that in me sounds like a broken record – but it does hurt other people more than me.

Here and there: Aristotle’s Rhetoric

The difference in world views between empirical England and rationalist Europe may be mirrored in part by the difference between  Plato and Aristotle.  While England and Europe were developing their laws, they subscribed to a church that sought to apply the teachings of those two Greek philosophers.  The German poet, Heinrich Heine, thought that Plato was the idealist full of vagueness and mysticism, whereas Aristotle was clear and intelligible and stood for everything certain, the model for all empiricists. 

Plato and Aristotle!  They are not merely the representatives of two systems, they are the types of two different species of humanity, which since time immemorial, under every variety of garb, have stood opposed to each other in more or less hostile attitude…..Dreamy, mystical, Platonic natures find revealed in the depths of their being the Christian idea and its corresponding symbols.  Practical, methodical, Aristotelian natures construct out of this idea and its symbols a definite system, a dogma, and a worship.

Augustine and Aquinas may have seen it that way.  Plato may have been ethereal – if you forget his politics in The Republic – but the strait-jacket of Aristotle would stand in the way of science and nearly kill Galileo.

Shakespeare was taught rhetoric and it shows.  It is no longer taught in schools or universities – and that shows too.  Our omission feeds the capacity of demagogues to serve up tripe unchecked.  Therefore, while reading Aristotle may often be as entertaining as reading a phone book, it is worth our while to consider his teaching.  He says there are three divisions of oratory – political, forensic, and ceremonial.

Rhetoric may be defined as the faculty of observing in any given case the available means of persuasion…..Persuasion is achieved by the speaker’s personal character when the speech is so spoken as to make us think him credible…his character may almost be called the most effective means of persuasion he possesses…persuasion may come through the hearers when the speech stirs their emotions.  Our judgments when we are pleased and friendly are not the same as when we are pained and hostile…..

Advocacy is about persuasion, but the references to character, including personal character, seem to me to be spot on.  And character bears on the next point.

The arousing of prejudice, pity, anger, and similar emotions has nothing to do with the essential facts, but is merely a personal appeal to the man who is judging the case.  Consequently, if the rules for trials which are now laid down in some states….were applied everywhere, such people would have nothing to say.

Would that judges were more strict, and the press were more critical.

A member of the assembly decides about future events, a juryman about past events.

Both parliament and the jury stand for government by the people for the people – and both involve matters of judgment.

Honour is the token of a man’s being famous for doing good…We may define a good thing as that which ought to be chosen for its own sake.

This looks more like a substantive issue.  It may leave a lot of work for the word ‘ought’ – without invoking what is good – but very few get this right – if any.

For all men are persuaded by considerations of their interest, and their interest lies in the maintenance of the established order.

That is hopelessly wrong.  What about Philadelphia on 4 July 1776 or Paris on 14 July 1789?  (That is what the author calls ‘arguing by example’.)

Particular law is that which each community lays down and applies to its own members: this is partly written and partly unwritten…..For there really is, as everyone to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other…..There are two kinds of right and wrong conduct…..written and unwritten….The second makes up for the defects of a community’s written code of law.  This is what we call equity; people regard it as justice; it is, in fact, the sort of justice that goes beyond the written law…..Equity must be applied to forgivable actions; and it must make us distinguish between criminal acts on the one hand, and errors of judgment, or misfortunes, on the other.

The reference to ‘errors of judgment’ and ‘misfortune’ is sensible and decent.  Whole books have been written about ‘natural justice’ and whole careers have been devoted to practising what we call Equity, but are we to be ruled  by laws or by people – by judges who seek to apply the law, or by judges who want to do what they think is a fair thing?  And how do you apply these broad conceptions to the maxim given by Aristotle on the second page of this book?

In general, then, the judge should, we say, be allowed to decide as few things as possible.

Our judges used to be better at this restraint than many with an eye to a headline are now.  And our great jurist, Sir Owen Dixon, referred with relish to the remark of Aristotle in this work (1.15): ‘The effort to be wiser than the laws is what is prohibited by the codes that are extolled.’  (My translation has, pleasingly, ‘cleverer’ for ‘wiser’.)  And indeed this part of Rhetoric carries reminders that the ancients were very far from our conception of civilisation.  The oath of the juror to ‘give my verdict according to my honest opinion’ would be a form of anathema for us as applied by Aristotle.  He says that while witnesses are concerned with past events, we can appeal to soothsayers.  Or voodoo?  We, now,  would much prefer the following.

….not to use the laws is as bad as to have no laws at all…as in other arts it does not pay to try to be cleverer than the doctor; for less harm comes from the doctor’s mistakes than from the growing habit of disobeying authority.

What a bull’s eye in a time of pandemic!  But ‘disobeying authority’ is what we flirt with when we appeal to natural justice, innate fairness, or our conscience.  That’s the issue that gave rise to the maxim that ‘hard cases make bad law’ – a simple proposition that gets forgotten by too many appellate judges, or ambitious souls at first instance.

That the orator’s own character should look right is particularly important in political speaking: that the audience should be in the right frame of mind, in lawsuits.

Well, lawyers should show character to the client – why not to the court?  The one thing that is incandescently clear is that bad character is fatal.  Sir Owen Dixon knew the truth that candour in advocacy is a weapon.  Its opposite is lethal – and remembered.  And it is both dumb and rude to go to court dressed like a bum.

The use of persuasive speech is to lead to decisions…we may say, without qualification, that anyone is your judge whom you have to persuade.

This is a very interesting perspective – at either end.

We will treat of argument by example, for it has the nature of induction, which is the foundation of reasoning.

If the driver of a coach and four owed a duty of care to other road users, why should not the driver of a car?  Is it not a fortiori?  This is as elemental to the common law as any other exercise in logic?

The first thing we have to remember is this.  Whether our argument concerns public affairs or some other subject, we must know some, if not all, of the facts about the subject on which we are to speak and argue.

This too is elementary – and elementally flouted.  When we say that people do not accept the science on a subject – like climate change, a pandemic, or a vaccine – what we mean is that they are ignorant both of the empirical evidence and the learning that tells what are the correct inferences to be drawn from that evidence.  One follows ineluctably from the other.  It is not like a question of whether you choose to accept some form of religious dogma that has to be taken on faith.  It’s about what happens when you change gears in a car.  You may not have the knowledge – the expertise – to explain what is going on mechanically, but you have a justified faith that the car will operate in the manner for which it was designed and built.  You can extend that to heart surgery, atomic physics, astronomy – and the climate.  The point about, say, vaccination is that its worth can be demonstrated by the application of logic to evidence of facts that is not in doubt.  People who should know better are getting away with bullshit that puts both people and the planet in danger.

It is plain that delivery has just as much to do with oratory as with poetry….Style to be good must be clear, as is proved by the fact that speech which fails to convey a plain meaning will fail to do just what speech has to do.

This is not just another bull’s eye – it is time for the Halleluiah Chorus.  And we have just seen how vital it is by looking at the proposition that some do not ‘accept science.’  Some people – millions and millions of them in the U S – do not accept the account of evolution that historians and geologists and astronomers and other professional people have put beyond doubt.  They prefer to rest on their faith in their chosen branch of religion.  That may not do so much harm, except to the minds of those choosing to follow them, but it is an exercise in irrationality that it is not always easy to distinguish from dementia.

The last quarter of the book gives detailed instructions on style.  Problems of translation here become paramount.  I mention only three things.  The author reminds us that fortune tellers (‘diviners’) use vague generalities because it is harder to say that they were wrong.  The oracle at Delphi is still notorious for this – hence our word ‘Delphic’. It is the same with all people who don’t have the answer and won’t admit it.  Aristotle asks us to remember what the man said to the baker who asked whether he was to make the cake hard or soft: ‘What, can’t you make it right?’  And he closes the book with a sample peroration.  ‘I have done.  You have heard me.  The facts are before you.  I ask for your judgment.’  It is indeed a solemn moment.

It is a matter of comfort to me, and I hope to you, that after 2,500 years we can still hold on to some truths by which we like to live.

The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

When I read with Daryl Dawson, he was a subscriber to the Mary Martin Book Club.  It was a good source of books based in Adelaide.  This would become part of a kind of disease, from which I still suffer, of becoming an insatiable book buyer.  I would go on to amass a huge law library in the faith that it might be a good basis of investment.  I had a collection that was marvelled at and which gave me great assurance and pleasure.  But the computers would end all that – and create endless hazards of minefields of precedents and inducements to very average lawyers to lay out their ambitions on the World Wide Web – just one of many ill effects of that revolution.  About the first book I got from Mary Martin was one by Somerset Maugham, Ten Famous Novels and their Authors – big hitters like Tolstoy, Balzac, Dickens and Melville.  I was horrified to see that I had not read one of the ten novels.  I used to collect the great classics to read on vacations.  I was usually working at least six and a half days a week and most nights, so the great novels and histories were laid up for vacation.  I insisted on five weeks in summer and two in winter – at a time when I could and did put all work out of my reach.  I made it my business to read the great novels – the big ones at least two or three times.  The big three are Don Quixote, War and Peace, and Ulysses.  I have read those three times – as with the big ones of Dostoevsky, Balzac, Dickens and Flaubert.  They all become old friends – like favourite movies or operas.  I also tried to stay in touch with our writers – I have a hard-back of each novel of Patrick White, and I have read Riders in the Chariot three times.  The great novels for me are like the theatre, opera, philosophy and history – utterly indispensable.  I do not entirely jest when I say that I read history for entertainment and the great novels to see what makes the world tick.  It saddens me greatly that so many go through life without sharing treasure that is way beyond measure and without which I would be so much worse off.


We may try to steer clear of Australians when abroad, but now and then the sound of home may come as a comfort.  When we got to Moscow from Athens – the sloppiest airport via the sloppiest airline – we were held up for three hours in customs.  Then I was told that our night at the Bolshoi had been cancelled.  That was a major reason for our being there.  I was very dirty on the world.  When we got to our hotel, a faded and drab monolith, there was another queue and another delay.  I heard some Australian accents behind me.  Two guys from the back blocks of New South Wales.  ‘I just got in from Athens.’  ‘So did we.’ ‘I was at a law conference.’  ‘So were we.’  ‘I did not see you there.’  ‘We were not big attenders.’  (I am prepared to swear to the accuracy of this report.)  ‘I hear they have cancelled the Bolshoi.’  ‘Yeah.  We thought we would go to the trots instead.’  Bliss.  The day after we got to Rio, I was standing under the famous statue of Christ on a glorious spring morning in the sun with that familiar haze of jet lag when I heard this unmistakeable accent.  ‘I don’t know how many hundred thousand cruzeroes this bloody beer cost, but it is worth every bloody one of them.’  More bliss.  The conference in Moscow was on international trade – which I did not think would loom large on the other side of Dubbo.  But who was I to talk?  The conference in Athens was on medicine in the law.


Doubtless I am not alone, but I have long had a love – hate relationship with Wagner and the Ring Cycle.  I went to both Adelaide versions and had booked the one scheduled for Brisbane 2020 – before the virus hit.  By chance one day another boxed set of the Ring (about my fifth)n – one of the Furtwangler versions –arrived at the Post Office at the same time as a book containing the full text as written by Wagner – including all the narrative and stage directions.  I played the short first of the four operas, Das Rheingold – just over two hours – with the text in front of me – not just the liner notes.  It put the whole show in a very different light for me.  This is real musical theatre – as if the stage was right there in front of me.  Only a fanatic would say that the poetry has unique value as such, but listening to the music – especially in the dialogues – with the text really gives you very high theatre.  I shall repeat the dose on the other three operas – on which my views are evolving, and will then watch the full set as done by Chéreau at Bayreuth – that is in my view the best available on DVD.  But no power on earth will get me to front up for Tristan or Parsifal again.  Simone Young gave a talk about Tristan and said we might get the long version.  We evidently did, and it could have killed me.  Two of the three acts of Parsifal take place on Good Friday, and if you still have any appetite for it, look up what Mark Twain said about it at Bayreuth.  As balloon punctures go, he is one of the best.


Going back to my visit to Moscow, I met my partner John Beaven at the airport.  This was about 1988 – glasnost, but we still had a guide with us on the bus into the city from the airport.  John and I were swapping stories about the dead hand of communism – I wore red pants for the occasion – when we got to a point at about the distance of Moonee Ponds from the city centre (the Kremlin) when we came upon one of those vast heroic military monuments that such régimes long for.  We shut right up when the guide said ‘This is where we stopped the fascists in the Great Patriotic War.’  We really have had a cosseted life down here.  John was English and a banking lawyer, a very proper man and lawyer with a deep sense of humour.  But I was aware that he was fighting demons within and that he had become fascinated by Russia.  The therapy of this visit did not work for him.  His condition got steadily worse, until one day when he was missing, another partner, Gavin Forrest, and I drove down to his holiday house at Rye and found him dead in the car with the engine still running.  It was a fearful shock, but I was very taken with the warm way people across the whole office, including Sydney, responded.  I can recall that in his eulogy, Gavin Forrest said that ‘I am immensely proud that I was a friend of John Beaven.’  That may, I suppose, be one difference between life at the bar and as a partner in a law firm.  The word ‘partner’ has a resonance that you do not find at the bar.  Many years later, a barrister with whom I shared chambers took his own life.  I had known John was in danger, but the dead barrister had not given any indication of that level of risk.  Younger barristers around us were very upset.  I wrote a note for them about stress at the bar in which I mentioned John’s fate.  Some time later, the Bar News asked if they could publish it and I agreed.  A lot of people told me how glad they were that I had uttered some truths that had been hidden, but I had referred to the problems with alcohol of two heroes of the bar, and I was sent to Coventry by people I had been close to.  Truth, evidently, was not a defence.  I was very hurt, and I can still feel the wound.  Collegiate life may be fraught if you agitate the prima donnas that inevitably strut up.

Passing Bull 255 –American fallacies

More than 600,000 American soldiers died fighting the Civil War.  Most of those deaths occurred after or outside the battles.  More than 250,000 Americans have died during the current pandemic.  The number could reach that of the Civil War deaths of soldiers.  This tragedy reveals two related streaks of irrationality coming from American history – a preoccupation with ideology over sense and a cavalier attitude to science and experts.

The worst hit state is South Dakota.  Its unrepentant Governor says ‘My people are happy because they are free.’  Civil rights are not much good for you if you are dead.  Any law restricts freedom.  It is ridiculous to object to a law on that ground.  Saying that you do not want a law about masks because it violates your rights is in the same moral and intellectual plane as insisting on your freedom of movement by running a red light.  Where I live, people prefer sense to ideology.  If you go into a shop without a mask, you will not be served – and then you will be evicted.  We have that law for the same reason we have laws about red lights – to stop our conduct causing other people to die.

Many fear that climate change is far more dangerous to humanity as a whole than the pandemic.  A great many of American legislators are committed to the bible account of creation.  They look to be rejecting science, but that is just another way of saying that they reject or ignore the evidence.  Some bizarre notion of American exceptionalism or equality leads too many Americans to suspect experts.  Once you reject science and the experts on the history of the planet, you can do so on its future.  The result is the mad response to climate change by people who call themselves ‘conservatives.’  Then you get the same with the pandemic.  This queer reaction to science is often linked to a queer view of religion.  The so-called evangelicals have a lot to answer for on this – and Israel.  Religion has had an impact on politics that would not be tolerated here – or I think any other part of the western world.  And the American capacity to embrace falsehood goes back at least to the Declaration of Independence.  The remark that all men are created equal was a dreadful lie.  Their rationale for the rebellion was not much better.  They rebelled because the mother country was taxing them.  Tax is still a blot on their psyche.  Jefferson listed their complaints against England.  He managed to mention tax once, coming in at about number 20, after a lot of silly propaganda.  Even then he got it wrong.  He said that King George was responsible.  The whole point of the English Revolution was that only the parliament could levy taxes.

We all have our odd failings, but these are shockingly lethal.


The 45th US president restored law and order by defending police against militant racists and nominating black-letter lawyers to the Supreme Court.  He chipped away at left-wing orthodoxy in the public service and on campus by testing the limits of free speech.  He demanded equal treatment in America by telling free-riding allies to boost their military spending and pay their fair share for defence.  He called the bluff of bully states and withdrew U S money from the Paris agreement, which rewards totalitarian regimes with Western workers’ money.  He protected Americans from illiberal enemies by closing the border to terrorist-producing states…….[She concludes] With a party that supports formal inequality, racist governance and political censorship about to form government, the battle for the American Dream has only just begun.

If Victoria has managed to eradicate the virus, at  huge cost, it’s because there wasn’t much virus around in the first place.

The Australian, 10 November, 2020, Jennifer Oriel then Adam Creighton

As silly as the Americans referred to above.  And just as dangerous.

Passing Bull 254 –Public interest and privacy

Some years ago, the BBC put on a tough interview with Boris Johnson.  As I recall it, the interviewer finished by calling his subject a ‘nasty piece of work.’  The subject was not amused.  I can almost see the steam rising.  But a critical function of the fourth estate is to check up on the other estates.  The BBC just happens to do that job better than most others.  The English Prime Minister is now gunning for the BBC.  You can draw your own conclusion about the connection between the two events.

Before I comment on the Four Corners program on the Canberra bubble, I must confess to three sources of bias. 

First, I like the ABC but I don’t like the federal government.  I acted for the ABC as a barrister and then as a solicitor for about a quarter of a century.  At times, I took instruction from Sally Neighbour, who was I think the producer of this program.  Otherwise I took instruction from Judith Walker, the in-house solicitor in Sydney.  Judith was as fine a civil servant as I have met.  Her position was very difficult because she was always subject to heavy political pressure from politicians of either side.  It could get very ugly – as they say in the NRL. (She and I both survived that frightful phase when John Howard stacked the board with preposterous puppets.)  I was happy to represent a public body that in my view performed well in a job that we badly need to see well done.  And my partners and I would be greatly amused to hear the firm that I was a partner of described as ‘left-wing,’ or some other such silly label.

As to the government, I find this Prime Minister to be determinedly unimpressive.  Queen Victoria said she felt that Gladstone performed as if he were addressing a public meeting when he spoke with her.  Whenever I hear our present Prime Minister, I feel like a fifth grade student in a geography class at Box Hill State School.  As to the MPs referred to in the program, they fall to be assessed by such of their conduct as is common ground.  On that evidence alone, the best I could say of either is that he is a nasty piece of work.  As to party politics, I will have none of it.  I vote at both federal and state elections based on my assessment of the candidates.  Their party is irrelevant to me – and let’s face it, neither of them stands for much anyway.

The second ground of my bias or prejudice is that I have raised two daughters and I know something of the demons out there that women have to deal with – and I hold very strong views about people who abuse power for personal advantage of any kind.  The crime of rape is after all the grossest form of abuse of power.

The third ground is that I am one of the few people in this country to profess respect for Malcolm Turnbull.  I hold him in much higher regard than most politicians on either side – including his two successors.  In my view, this nation has been badly let down by its politicians, and I very much regret that this man was assassinated by his own party, twice – because too many of them simply refuse to grow up and act decently on the challenges to the environment on climate and other grounds.

Now for the Four Corners program.  I will assume that you have watched it.

All the women were for me entirely credible.  The complainants in these cases – and I have acted on each side in such matters – have no interest in going public like this.  Such a step requires at least two things.  The person sees what they think that decency requires of them in their assessment of the public interest.  Then they find the courage to do what they see as their duty.  All the probabilities are against any fabrication.  The late Peter O’Callaghan, QC dealt with complaints against his church for many years.  He told me that in that time he only saw one bogus claim – and that one was hilarious.  A large part of the problem of this foetid culture in Canberra is that people are too scared to come out.  As one journalist who knows the scene says, ‘speaking out puts a target on your back.’

The evidence of the women was consistent with all the other evidence.  The problem of people living together in what is called the Canberra bubble is as well documented as the failure of the Liberal Party to get more women into parliament and government.

And the people against whom the allegations were made, in particular Mr Porter, chose not to respond to them after being given many opportunities to do so.  Instead, they used their influence to try to destroy evidence and to prevent publication.  On that ground alone, the subject of the program was obviously one of public interest.  Here you have members of parliament, including the Attorney-General, using their influence to try to remove evidence of the public conduct of one of them and to stop the public broadcaster informing the public of what happened.

You do not have to be a lawyer to see the result when evidence of misconduct is uncontradicted.  And we know that it was misconduct precisely because those responsible for it did not want us to know about it.

One critical item involved Mr Porter being seen in a well-known public bar in Canberra behaving with a woman who was not his wife, but who was on the staff of a minister, in such a way as to attract public attention – to the extent that a journalist watching it decided to take a photo of it.  This was the evidence that Mr Porter and his parliamentary supporter, Mr Tudge, tried to suppress.  As it happens, Mr Tudge has also had an affair with a staffer.  But Mr Porter’s friends in the press, especially The Australian, say that this was not a matter of public interest.

If I may say so, what happens in public is not private.  That would be a contradiction in terms.  And it is not private when it involves the conduct of people who are all on my pay-roll.  And it is in the public interest for us to be informed of conduct by our members of parliament that reflects on their capacity properly to represent us – to the extent that the then Prime Minister had to warn them and formulate some kind of precept to deal with an issue which was known to have been festering for a long time.  It is simply worse when one of those involved in the misconduct is the First Law Officer – the person charged with enforcing the law – and who is given to lecturing us about family values. 

And we hardly needed ASIO to warn us of the danger to the public weal of those in power over us engaging in misconduct that leaves them susceptible to the power of our enemies.  If Messrs Porter and Tudge react like this when approached by the ABC, what will they be like when agents of the secret service of China or Russia come knocking on their door? 

It is terrifying to think of what people may have tried on Kennedy or Trump because of their wanton womanising.  Clinton was no better.  The days when what was called adultery were kept in club are long gone.  If an elected representative behaves in a way that leads his wife unable to trust him to keep his word, how does he expect us to trust him?  Do they all not see that we are all just fed up with this perpetual hypocrisy?

There might be an argument in a court of law about what lawyers call similar fact evidence, but this was not a court of law. In my view, this was first rate journalism, and that is evidenced by the reaction to it by those inquired of. 

The denials made by people like those at The Australian go to show their prejudice against the ABC.  In truth, as a friend of mine remarked, they hate the ABC.  And this will get worse.  Now that the ABC has people of the calibre of Laura Tingle, David Speers and Annabel Crabb, the advantage of the ABC will really grate.  They are far ahead of the rest of them.  And when did you last see investigative journalism like this in the rest of the press?  How many parliamentary inquiries or royal commissions have been launched because of Four Corners?  Who else has this facility?  Can you imagine a world in which we did not have the ABC by which we can gauge the rest – to their never ending chagrin?

What now for Mr Porter?  He comes across as having little or no judgment, a pampered pretty boy who is used to getting what he wants by throwing his weight around, a lightweight Antipodean version of Donald Trump in board-shorts and thongs – and we know what his leader thinks of thongs.  Mr Porter has a serene smirk that bespeaks a slovenly conscience trampled under a rampant ego and id.  His ineptness about that silly notion of religious freedom was not one off.  He is a serial dill.  Mr Porter is not at the stage yet where the Australian press uses the term ‘disgraced’, but he is hovering over another favourite sobriquet of theirs – dead meat.  He and his frisky and pesky pal are headed for oblivion, and that will be a blessing for us all – especially our women

And his watery reference to legal action was further evidence of his lack of judgment and tendency to bully.  The prospects of such action being taken and going to judgment well for him are about the same as my prospects of beating his father’s best high jump.

I congratulate the ABC and in particular its Chair and Sally Neighbour and Louise Milligan for staring down our government and doing their job so well.  Ita Buttrose knows all about male bullies.  She was a good choice by this Prime Minister and we should take care to see that the recriminations do not imperil the Chair.  Their capacity to indulge in purges of the ABC is another reason why I do not trust or respect this government.

And the government?  When the High Court found that this infection had reached it, our Chief Justice said ‘We’re ashamed….’I was moved by this integrity and decency.  We never get it from the other arms of government.  We just get more banal mediocrity, and, Heaven help us, ‘not on my watch’.

As for the folk at The Australian, it is hard to know whether their jealousy of the ABC is driven by contract or torment.  I watch Four Corners about once a year and I have never seen Q and A.  But the people at The Australian look to be addicts.  The Jewish Sabbath sees a motley of Liberal Party staffers and apologists, Looney Tunes from the IPA, and the most dolorous Catholic in Christendom all join hands for an orgy of ABC bashing.  They divide their time between putting down the ABC and boosting up Donald Trump.  Perhaps the wind brought their sore affliction over the water from their ugly sister in America – although it would have to come the long way.  It is fair to say that the warped minds of people like Credlin, Kenny and Henderson are notorious among people in what they are pleased to call the elites – but their bone crushing predictability must leave them all at risk of boring each other in their own little bubble to death.  They are all a shirtfront to sense and decency.  And the hate mail that they get from their followers which they publish is deeply disturbing.  It has been years since any person of sense, of any political stance, took that paper seriously.

The upside is that they are the best boosters that the ABC has ever had.  The downside is that while Rupert Murdoch lives, Donald Trump could happen here.  And they would see that as a big win.

A mare and her foal are in peace munching the long grass in my paddocks and reducing my fuel load.  Later I will stroll along the ridge toward the cemetery, trusting that the Almighty does not see that as teasing Him, and I will be gazed at by cows munching soulfully on their cud.  Then I will take in the view of a railway viaduct on one side and a lake on the other, each in its own valley.  And then, it being Saturday, I will go the village to collect the papers – and then count the orchestrated sprays of the ABC by Murdoch’s minions – and hope that my uptake of sanity survives the day.

Thank Heaven for the simple goodness of nature.

Passing Bull 253 –AFR Loading

An AFR editorial about Trump on 31 October 2020 showed leanings and aversions that keep appearing – disgust at anything ‘Left’ and closeness to big business.

In 2016, Mr Trump offered a weary and disappointed US middle and working class a self-contained America that kept out migrants and unfair trade, and kept away from the wars of others.  There were annoying kernels of truth in his complaints……Foreign allies piously calling for America’s global leadership also happily freeloaded under Washington’s huge defence budget burden.  The identity politics of left progressives still too easily sneers at common people and veers into censorship…..The Democratic response to the Trump presidency has been a shift to the wacky left…. Mr Biden, though too old for the job, offers the better hope of return to some form of normality.  President Biden, braked by a narrow Republican majority in the Senate, would be the only good result for America and the world.

A lot of that is in the language you see in another newspaper – identity politics, left progressives and the wacky left – but are these demons breathing so hard in the editor’s ear that his distrust of the ‘left’ is such that he thinks a divided country would best be served by a divided government, and that the interests of America and the world would best be served by Mr Biden having to put up for four years what Mr Obama had to put up with for eight years from Mitch McConnell?  And might it not seem just a little presumptuous for an Australian newspaper to say how Americans should structure their government?  By putting a brake on their president?


Judging by Biden’s first speech as effectively president elect, one of the chief dangers we will face from a Biden presidency is drowning in schmalz, slightly mangled.

The Australian, 9 November, 2020.

The dreamtime of a ghost-seer – Part 5

Reflections on the law and other things by a lawyer in autumn


In the late 70’s and the first half of the 80’s, Neil McPhee and I fought a lot of cases for the VFL, as it then was, in seeking to uphold their rules, and for the press responding to prosecutions for contempt of court.  We lost all of them – at least all those that were fought through to judgment.  The law is against people’s freedom to trade for the supply of their labour being restrained by rules of those running the relevant market.  It was obvious that the League’s zoning rules were in restraint of trade.  The onus was on us to show that the restraint was ‘reasonable’.  We never managed that – and so Mr Packer and others were able, for better or worse, to go into the market – and the rewards for the players went sky high.  Those running cricket had been obdurate and mean, and no one should have been surprised by the explosion.  The contempt cases involved another difficulty that I will come back to. 


Over about the same period, Jim Kennan and I treated ourselves to a long lunch at the Society at the top end of Bourke Street about three or four times a year.  Crayfish legs for $2.50.  We would settle in until about 3pm, and then go to a bookshop or record shop, and end up for coffee and liqueur at the Windsor.  The clientele looked to be the Catholic hierarchy, racing identities, and up-market call girls.  I loved all of it.  It would be fair to say that I probably drank more, although I don’t think we ever got disorderly.  We walked into the Windsor one afternoon and Liv Ullman was at reception.  I had just bought a volume of poems – I think Browning – and I said I would get Ms Ullman’s autograph.  Jim was scandalised and hid behind an aspidistra.  (That is literally true.)  The actress was both charming and obliging and signed the book of poems.  Jim was relieved and we went back to the Hill of Content for another go at a bookshop.  Liv Ullman’s autobiography was on the shelves.  Jim bought a copy and wrote in it.  When I got home I saw what he had written.  ‘To Christine.  From a friend of a friend of the author.  J H K.’  That was all style.  Jim was always good for me, and I still miss him.  Just as I still miss another Jim from the law, Jim Merralls.  Each for me in his own and different way showed how we could try to do something good in our profession.  And each knew just how well off we were to have that opportunity.


‘Majesty’ is such a fine word – majestic, even.  Churchill concluded a speech to a spellbound U S Congress this way:

It is not given for us to peer into the mysteries of the future. Still, I avow my hope and faith, sure and inviolate, that in the days to come the British and American peoples will for their own safety and for the good of all walk together in majesty, in justice, and in peace.

Possibly only Churchill could have said that, and his American audience erupted.  They had heard of his oratory – and they had one of their own at that time – and now they had shared it.  He probably had in mind ‘the dignity or greatness of a sovereign’.  We are talking of the kind of dignity in a sovereign that we find in the offences of lèse majestie or laesae majestatis – ‘insulting the sovereign’ – that you can still find in regimes in Thailand or Turkey and which was probably the basis of the judgment adverse to Jesus of Nazareth:  the suggestion came – we know not from where – that the prisoner had claimed to be the King of the Jews – and that could be found to have queried the authority and power of Rome over that part of its empire that included what we now call Israel.  Pilate did not refer to the response of the prisoner that ‘My kingdom is not of this world’, and we might doubt whether that proposition would have been a defence to ‘wounding majesty’ which is the meaning of the French and Latin phrase above.  But that sense of majesty is precisely what I feel at that part of the second movement of the Eroica that I referred to before.  It makes sense, therefore, that the other comparison that occurs to me is Churchill’s reference to ‘those broad sunlit uplands.’


You might I suppose want to talk of the majesty of the law, but I incline to the view that such an attitude might best be left to the history of the law or visits to its birthplace, England.  I always dropped in on the Royal Courts of Justice on the Strand when I was in town.  (They are not far from Australia House that we used to repair to in the distant past on Mondays to check the footy scores.)  I don’t know whether it was just luck, but I always seemed to find myself listening to a barrister who looked very much at home and was as smooth as a baby’s bum.  A substantial part of the Victorian Bar turned up to tune into a fabled libel action between Jeffrey Archer and Rupert Murdoch.  Bob Alexander for the plaintiff was outright svelt.  But we thought that the cross-examination of Archer – who looked awful – was anaemic.  We thought that McPhee or Sher would have wiped the floor with him.  And the judge was so loaded against Murdoch that it was downright embarrassing.  So, we did not need to feed any chip on our shoulders.  As it happens, I think that the verdict was later set aside when the duplicity of Archer became known.


Which reminds me that my first jury trial was a libel action.  This was about 1974.  Gavan Griffith had advised the owner of a caravan park to sue the ANZ bank for libel for bouncing a cheque.  If a bank tells someone that its customer has insufficient funds to meet his obligations, that communication causes others to think less of the bank’s customer.  That is a libel – or, if you prefer, defamation.  The action was brought by the company that ran the carpark – it was run by a retired police officer, a doughty type who took offence at his bank’s rudeness.  The bank pleaded all the defences to libel – except qualified privilege – which I thought would have been unanswerable.  I spent the best part of a week learning about the law of libel.  I paid real money for the main text, Gatley.  I also had to find out about appearing before a jury, and to overcome nerves at stepping into the unknown.  One thing did trouble me – the company was in substance defunct.  How could it maintain the action?  What could the damage be?  Well, I was briefed to appear for the company by a reputable firm, and the bank was represented by my old firm and reputable counsel, who said nothing about the standing of my client.  So we went on.  I had cases on the law of libel coming out of my ears, so I was more than a little surprised to look up and see Judge ‘Slim’ Somervaille charging the County Court jury from the precedents part of a book about process in the County Court that was about half a century out of date.  The jury did the right thing and came back with a verdict.  For us.  I think the damages were assessed at $500.  That meant we got off the bottom row of costs.  I think my fee for the two days hearing, conferences, and about a week’s preparation would have come to less than $200.  It was all very gratifying.  I started to ease into libel generally.  My old firm acted for the ABC, and after a while I was specially retained by the national broadcaster, for whom I still have a soft spot.  I got to know Bernie Teague for Murdoch and Tony Smith for The Age, so that I was involved in most libel actions in Victoria on one side or the other.  Some of the press were very heavy handed and sought to beat up plaintiffs, especially politicians and celebrities, by arguing about very technical points of procedure – that I was learning all about.  I tried to discourage most people from suing – unless I thought the case was clear.  Then I could get a writ issued, and seek a speedy trial, and settle for, say, $20,000 and an apology.  I found all this very rewarding.  It is good to have one area in which you specialise, and are known for such, and in my view it is very unhealthy for lawyers only to act on only one side.  That can lead to a very dangerous closing of the mind. 


In addition to libel actions, I had to fight prosecutions for contempt.  They are different.  Your proprietor can write the cheque for damages for libel, but it cannot do your time for contempt.  The Crown had only to show that what our clients had published had a tendency to interfere with the course of justice.  That issue would be tried by a judge alone, and a lot of judges were worried that the press could abort criminal trials if they were not careful.  The crime is prescribed by the common law, and there is no limit on the penalty.  It is no understatement to say that we were kicking into the wind – sometimes a bloody gale.  The upshot was that a well-known broadcaster, Derryn Hinch, was sentenced to six weeks in prison for telling the truth on a matter of public interest – that a priest awaiting trial had prior convictions.  As the law then stood, there seemed to be no defence; that is still, I think the law, but it is very hard to imagine that the result would be the same today.  Still, it gave me something to dine out on at legal conferences in all parts of the world.  A large crowd turned up each day to show their hostility to Hinch.  I could feel it drilling into my back at the bar table.  I was glad I was with John Winneke.  The judge, Peter Murphy, was having trouble concealing his appetite to send Hinch to the slammer.  Then one day a woman came into court apparently to watch John Winneke in action.  She had just briefed him to act for her.  Her arrival caused quite a frisson.  This lady had her own special kind of presence – it was Lindy Chamberlain.

Passing Bull 252 – Fluffy tropes

Some people get by saying nothing pompously.  In The Australian today, Paul Kelly begins his front page column this way.

Annastacia Palaszczuk has proven the power of closed borders and the curse of pandemic protectionism.  In this first state election of the COVID-19 crisis, Palaszczuk has shown how the virus has elevated strongarm populist premiers as the new giant killers roaming the land.

The results of elections are caused by all sorts of things.  They may or may not evidence sentiments in the electorate.  We will never know.  It is impossible to say what sentiments were the most significant.  That is one reason that we don’t trust polls.  Yet Mr Kelly can isolate one cause not just as evidence but proof.  There is a very big difference between the two – that we might hope a political diagnostician might have firmly in mind.

But what on earth is ‘pandemic protectionism’ and why is it a ‘curse’?

Let us put to one side tropes like ‘strongarm’ and ‘giant killers roaming the land’.  They are just silly.  But what does populist mean there?  It is not meant as a compliment.  The word ‘Trumpian’ gets a run in the next paragraph.  It looks to be an essential part of the ‘curse’.  As I follow it, in the two party system, people vote for the party that they think will best serve their interests.  The winner can say that it is the more popular party of the two.  A clear majority thought that the winning party would serve their interests better than the other party.  It is a fair inference that the pandemic was a significant factor in their thinking.  Experience suggests that incumbents are favoured in times of crisis.  But what here takes the successful party from popular to populist?

The thoughtless use of clichés as labels is the bane of our press.


Apollo said in a statement it was ‘firmly committed to transparency’. It added: ‘Leon has communicated directly with our investors on this issue and we remain in open dialogue.’

Financial Times, 23 October, 2020

What matters is that I act with integrity and honour.  That means I need to act in the best interests of ASIC and its vital purpose to build a fair, honest and efficient financial system for all Australians….I only took this position to serve the Australian community and to work to improve the corporate and financial system that should also serve it.  If I in any way impede that purpose, the right thing for me to do is to step aside until such time that I can.

The Weekend Australian, 24-25 October, 2020