Here and there – Manning Clark on Australia

People whose views I respect differ from me on Manning Clark.  I like and admire his work. He was there to tell a story, and he did so by telling us about the lives of persons, not of a people. His story is built like a saga, but over many generations.  And he speaks with the tone of one who looks down from on high, but with pity.

Set out below is my note on the abridgement of his history.  Here are some citations which give the drift of some major themes.

By 1820, these early sentiments of belonging to the country went hand in hand with ideas of exclusive ownership: their passion of patriotism was fed by xenophobia.  For Australian xenophobia had a long history, and its origins might be traced to the passions and aspirations of the convicts.

The whole convict community….continued to be poisoned by a silent deep-rooted hostility to the free settlers and the ‘bloody immigrants.’…Convictism had bred a race of levellers who were only happy when they were laughing cruelly at the misfortunes of others or getting a rise out of the pretentious, and sneering at all mighty men of renown.  Convictism had also bred a race of men who were indifferent to the great creations of the human spirit.

This dependence of the colonial bourgeoisie on London, and their success in educating the working class in their own values laid the firm foundations for conservatism in Australia.

The Argus explained why King should be spared ‘a preposterous glorification’: there was, they said, a broad distinction to be drawn between ‘moral heroism’ and ‘physical endurance’.  King seemed to have owed his preservation to that tenacity of life which characterised some constitutions and which was not a moral quality but a physical accident.  Gentlemen such as Burke and Wills had that moral quality which was outside the reach of a man of the people.

Colonials did not govern themselves entirely: defence and foreign affairs belonged to the Imperial Government.  Colonials had the same prerogatives as the harlot.  They had power but not responsibility.  That was one reason why colonial politics had degenerated into a sordid struggle for power.  Politicians contended not over great questions of principle, or matters of great moment, but rather over how to win the ‘scramble for office.’  Men formed groups in politics not from identity of political conviction but out of some belief that one leader was more likely to win office than another.

In fact, as Alfred Deakin observed, the prospect of federation had failed to arouse public enthusiasm.  The federalists, he wrote, were striving against ‘the inexhaustible inertia of our populace as a whole.’

Some believed in the goal of a co-operative Commonwealth under a democracy of man as declared ages ago by ‘the good revolutionist of Nazareth.’  Others were as pragmatic as Barton…..In March of 1901 the Reverend Mr Edgar electrified his congregation by giving permission to the men during a Melbourne heatwave to remove their coats.  He did not make so bold as to give women permission to remove their hats, because that would have transgressed St Paul’s injunction to women to cover their heads when in church.

He (Deakin) called a ‘Ministry of colourless respectability.’

The theatre-going public put that bland Aussie question to all disturbers of bourgeois complacency: what’s wrong with what we have got?

The emergence of an organised radical working-class movement presented the ALP with a dilemma.  Driven by conservative criticism to disown the revolutionary aims and methods of the Australian Socialist Party, they used the language and tactics which substantiated the verdict that they were a bourgeois party tossing sops and palliatives to the workers.

‘The promising military career of Robert Gordon Menzies’, one student wrote, ‘was cut short by the outbreak of war.’

Lang accepted defeat with the dignity which characterised him on great occasions, but he has paid a terrible price for indulging in the ‘insane folly of faction fighting’, which has killed the soul of Labor.

My own views are these. 

We have never grown up.  We – the white visitors on this great land – started off completely dependent on the English Crown and we still owe allegiance to it as our head of state.  I doubt if any other people is so dependent on its government.  We are so different to the US.  They were started by people opposed to the English Crown and the nation was formed when they revolted against it.  Their migrants came out on their own.  England sponsored ours.  The result is that we are timid and prone to inertia.

But the infection of the class system remains.  The treatment of King by the supporters of ‘the gentlemen’ Burke and Wills may be the most gruesome story in the whole history.  The stain is sustained by two unhappy imports – ‘public schools’ and the religious schism. 

But we also see that ugly levelling and rejection of those who fly too high for our comfort.  We are more at home with the mediocre.  People with big ideas, even big appetites, are suspect.  God help anyone who wants to be radical here.  We have recently seen people leer and jeer at Christian Porter with all the charm of a lynch mob, and the people Clark called mockers waited until he died to give him that treatment.  God we can be petty.  Australians are wont to respond to renown just as the lion responded to Don Quixote – with a large yawn, although few would be prepared to go the extent of baring their arse.

If you look at the characters that drive Manning Clark’s story, there is, to adopt a remark of Gough Whitlam, hardly one engine driver among them.  Then look at the flash points – the Rum rebellion, the Eureka Stockade, Burke and Wills, Ned Kelly, Gallipoli, the dismissal in 1975 – they are all tawdry, if not downright failures.

The reliance of early settlers on convict labour could have led us into a plantation society.  We escaped that, but not the profound conviction that white people were superior to those of colour – and infinitely superior to the local black people whom they brushed aside like pesky blow flies.  White supremacy was an express premise of our federal government, just as it was an implied premise of the whole British Empire – of which we were a part.  That hangover, and our inertia and acceptance of mediocrity, allows us to banish coloured refugees from the town of Biloela in a way that reminds us of the conduct of white Australians that scandalised London and Europe.

The European theft of the land, with the response of the Aborigine to such a theft, and European ideas on the nature of man and his destiny, rushed both groups into a clash which doomed the culture of the Aborigine, condemniung them to destruction or degradation and the whites to peace, security and material success, at the price of a reputation in posterity for infamy.

That’s the kind of strong stuff that unsettles and enrages the readers of Rupert Murdoch, but what part is not warranted by our story?  Those Australians who acquiesce in the banishment of the Tamils of Biloela have no right to ask what the residents of Munich near Dachau were doing in the years following 1933.

Then the reverend minister invited gentlemen to remove their jackets in church.  Not so long ago, a pianist said the same at the Melbourne Club, when the temperature was about 40 degrees.  We may as well have been in bloody nappies.  (A like invitation was not extended to the ladies, because they are not members.)  The folk at what Manning Clark called ‘Yarraside’ did not go to co-ed schools and their continuing adhesion to the English Crown and English ways are holding us back.  When describing the dependence of the colonial bourgeoisie on London, Manning Clark said that it helped to provide a solid basis of ‘conservatism’ in Australia.  He was not I think referring to the conservatism of Edmund Burke, but the comfort that chaps get from staying in the penumbra of other chaps from School or College.  It is so very English, and the Ockers who follow the Pies or the Storm are frankly just a little beyond the pale, old boy.

While I cannot point to one jot of evidence in support of my view, I have a clear conviction that this nation can experience a rebirth when it finally severs the English Crown from its place in our government.  That is, if you like, just a matter of faith.  It is time we got over this infantile attachment to a foreign family.  When the English wanted to celebrate the opening of their bowels over Sydney Cove, the military prison guards drank a toast and fired a feu de joie to an English king.  His Majesty King George III came from a line especially imported into England from Germany to lock out the Catholics from the Crown.  His Majesty was then going through one of his lucid phases, and he was still getting over his role in the creation of the United States.  But he was I think the first of the Hanoverians to speak English fluently.

The separation of the U S from the U K came in less than 200 years.  We are far too tame and mediocre to do anything as rash as declaring our independence.  The myth of the Man from Snowy River is just that.  Even Bradman dipped his lid at Lord’s.  There is a lesion on our psyche that will not go until after I have gone.

My one solace comes from those Catholics – such as one former Prime Minister, named Tony Abbott – who cling so devoutly to the English Crown – our truest royalists.  What a splendid achievement of dual fidelity!  (I resist saying that they serve two masters, because of the biblical injunction against that conduct, and because it looks like Protestant propaganda.)  These Catholics must know that the English Constitution specifically prohibits a person of their faith from becoming our head of state.  England has, I think, changed the constitution so that Kate could not disinherit Bill simply by going to Mass, but Catholics might recall that the Glorious Revolution of 1688/9 did not just set in stone the supremacy of Parliament – it was a glorious reaffirmation of the whole Protestant Ascendancy.  Given this contradiction, it is remarkable that Catholic royalists in Australia are happy to give continuing allegiance to both Westminster and the Vatican.  Indeed, at times I wonder if only those who have the benefit of an education from the Jesuits might be capable of the level of intellectual refinement required to sustain this mighty leap of religious and political faith.

MANNING CLARK’S HISTORY OF AUSTRALIA

Michael Cathcart (abridged)

Melbourne University Press, 1993.  Rebound in quarter vellum with burgundy label, title in silver and marbled boards.

By chance, I picked up a copy of this book for only $10 at the local flea market.  I had trouble putting it down.  I have read the original six volumes – twice.  I am a fan of the author.  He knew his job was to tell a story.  The raw materials are hardly inspiring.  The history of Australia has the same problem as the French Revolution – heroes are hard to come by, but there is plenty there to make you blush, if not hang your head down.

When I reread Strachey’s Eminent Victorians a while ago, I was struck by how much work God had to do with each of those lives.  Manning Clark was concerned with the phenomenon described as the death of God.   His language is frequently biblical, but the whimsy comes with compassion.  For me, the apotheosis of both style and story comes with parts of volumes four and five – the period from, say, 1851 to 1915– that included marks on our canvas like Eureka, Lambing Flat, Burke and Wills, Ned Kelly, White Australia, and Gallipoli.

Let us look at how we got off to a bad start on education and why it has remained a mess ever since.  The problem for the ‘reforms’ of the 1870’s was not so much God, as schism.  The latter is man-made.

The reforms entrenched the sectarian divisions they were designed to overcome, not least because the Catholic Church withdrew its children from the public system.  The question of whether or not the government should subsidise denominational schools remained a bitter source of conflict into the following century.  [And this century.]…..The children of the rich did not meet on common ground either in the classrooms or the playgrounds of the Australian colonies.  In some schools a room was set aside for the children of the rich….In this way the parents of the gentry and the upper ranks of the bourgeoisie ensured that the fine edge of gentility should not be dulled by familiar intercourse with common children, until the time came to attend a private school such as Melbourne Grammar School or the Presbyterian Ladies’College, where the prejudices they had inherited from their parents were consolidated into the habits of a lifetime.

We buggered that right up, and that very English divide is still with us.  We also buggered it up with help from another part of our schizoid mother country.

In the national schools, the children were taught to venerate Her Majesty Queen Victoria; in the Catholic schools the children learned to venerate the Holy Father, and to adore the Holy Mother of God.  In the national schools, the children learned of the glories of British arms, and the spread of a beneficent British civilisation over the whole world….;in the Catholic schools, Ireland was presented as the centre of the universe, and England as a place from which had come the men who had reduced the loveliest island on God’s earth to a land of skulls……In the national schools, the classroom walls were decorated with the likenesses of Queen Victoria, and of civil and military heroes of English history; in the Catholic schools classroom walls were decorated with prints of the Sacred Heart of Jesus, the Virgin and the Pope.  Yet they had much in common.  Both school systems enforced a strict segregation of the sexes; both urged their pupils to mortify the flesh; both taught a morality pleasing to the ears of men who held the purse strings in the colonial parliaments.

So, we not only inflicted social division on the children; we also gave them religious hate.  The second has evaporated, but the first lives on as a national disgrace.  Have we also allowed a ‘strict segregation of the sexes’ so that ‘the prejudices they had inherited from their parents were consolidated into the habits of a lifetime’?

We are reminded that the poet Henry Kendall thought that Australia belonged to ‘clowns, liars and charlatans.’  Boy, just look at us now.  One local newspaper was ‘Australian because it treated life as a cruel joke.  Its mockery was Australian.’  You find the word ‘mockery’ a lot in Manning Clark.  Clark was not a mocker, but the mockers waited until he was dead to move in on him.  A man who looked on others with an eye of pity was cruelly betrayed by people who should have known better.  Those mean and jealous people foreshadowed the jeerers, sneerers and leerers inflicted on Australia by a Flash Harry who checked out for the United States.

This was just another upswing of that petty mediocrity that so sadly disfigures what passes for our national character.  As Clark remarked, ‘in Australia, the upstart conservative, the mean man, often defeated the generous man and the visionary.’  As it happens, on the next page, we get the ‘money-changers had begun to set the tone of public life in Australia.’  These are truths that have sadly endured, and are not seen by those who best exemplify them.  Well, as Billy Hughes reminded our national parliament, at least Judas had the decency to hang himself – and throw away the thirty pieces of silver.

The Labor movement got off to a mean and rocky Australian start.

Writing and talking as though the love of all mankind distinguished them from all previous political groups, articulate Labor spokesmen inflamed their followers with hatred against the Chinese, the Jews, the English, the Pacific Islanders, and indeed almost all strangers in their midst.  Mouthing the platitudes of the Utopians about a new society in which all hatred would cease, and God’s destroying angels would disappear off the face of the earth, their candidates for election to the colonial parliaments represented themselves to be reformers rather than revolutionaries, preservers rather than destroyers.

We know about those people who love all mankind.  The man that Carlyle called the Evangelist of the French Revolution, Rousseau, loved all mankind – he just abandoned all his children to the Foundling Home.  ‘This arrangement seemed to me so admirable, so rational, and so legitimate, that the only reason I did not boast openly of it was to spare the mother ….All things considered, what I chose for my children was for the best for them, or so I genuinely believed.  I could have wished, and still wish, that I had been reared and brought up in the same fashion.’  Would Stalin have approved of the solicitude for the mother?

Those who came to federation had to deal with ‘the inexhaustible inertia of the people as a whole.’  That’s what we are – inert.  In no colony did more than 46.33% cast a yes vote.  We could also be crudely nationalist.  The Bulletin urged Australians to turn their backs on ‘Queen Victoria’s nigger Empire.’

Our first PM was ‘a middle of the road man, an Australian bourgeois politician.’  Toss-pot Barton believed political issues could be resolved by chaps over Scotch.  Some idiot referred to ‘the good revolutionist of Nazareth.’  Then in March 1901 ‘the Reverend Mr Edgar electrified his congregation by giving permission to the men during a Melbourne heatwave to remove their coats.’

But the Victorian Chief Justice, Sir John Madden, feared that a darker purpose was at work.  Taking his stand on the Bible, he warned that women’s suffrage would abolish soldiers, war, racing, hunting, football and all manly games.  The Bulletin worried that intermarriage with niggers could lower our national type.  Australians ‘had descended from their lofty eminence as a society of peace and goodwill’ and ‘Australia had suddenly acquired notoriety in the civilised world as a centre of human barbarism’.  Was the author of Ecclesiastes right?  Is there nothing new under the sun?

In the 1950’s parents in Melbourne were horrified by the gyrations of Elvis Presley.  How did their forebears handle the sex appeal of Wagner?  ‘Inside the Exhibition Building, society women fanned their faces to hide their response to the sensuous music of Wagner.  Men fidgeted in their seats as a trumpet, bassoon and a big bass drum inflamed their senses.’  Out of doors, politics stayed in the gutter.  Billy Hughes ‘hissed and spat at his opponents like a cat defending its own territory against an invader.’

Here are some passages that go to the core of our political life, that show why we are so different to the United States, and why the words ‘conservative’ and ‘socialist’ are so very slippery in the context of Australia.

George Turner [Victorian Premier and first Treasurer of the Commonwealth] was also said to have ‘no horizon in his mind, no perspective in his politics, no proud surface upon which he rested.’  But where Reid [News South Wales Premier, later Prime Minister] often flirted with the Bohemian fringe in Sydney, to the scandal of the frowners in St Andrew’s Cathedral, Turner was always a model of British bourgeois propriety.  Balancing the books was his great passion in life.  By his great industry, his zeal and his deep conviction, he helped to raise that criterion into the standard by which politicians came to be judged in Australia.

The liberals wanted a compromise between the conservative insistence that property must enjoy special protection in any colonial federal constitution, and the labour call for one man one vote…..

On the role of the state in economic life, the liberals saw themselves as supporters of the traditional role of government in planting civilisation in the Australian wilderness.  Government had played the major role in the supply, distribution and control of labour in the convict period.  Government had performed a similar role in the selection, transport and distribution of free immigrants.  Government had developed a network of country and suburban railways not on any abstract principle of the role of government, but because in Australian conditions, private or free enterprise could not or would not embark on such activities.  Liberals believed in a continuing partnership between the two.

The Mildura experiment in irrigation was a model of that harmony of interests which the liberals detected between government and free enterprise.  Alfred Deakin had been greatly impressed by the irrigation schemes set up by George and William Chaffey in California when he visited there in 1885.  In 1888……the government of South Australia interested them in a similar scheme in Renmark.  In Los Angeles, the Chaffeys had developed their schemes under the American practice of free enterprise – that, in American experience was what produced the greatest wealth, the greatest efficiency, the greatest service to the consumers and the highest material rewards to the people of initiative, drive and unbounded energy.  That was what generated a lively society, a society with a great pulse of life, a people who were magnificently alive, and not characterised by the dullness and mediocrity of people mollycoddled by governments, churches, charity organisations, or those self-appointed improvers of humanity who made decisions for people, thereby depriving them of the exercise of the right to decide for themselves, a necessary condition for the flowering of the personality.  The Chaffeys built their model villages….to the background of angry exchanges between conservatives very voluble on the evils of government interference and radicals clamouring for more government control.

Here is a warning about treating with barbarians – like Hitler.

The conservatives were in a dilemma.  A barbarian was threatening the very foundations of society, but the barbarian might have his uses.  He was offering to wipe Bolshevism off the map of the world: he was already destroying trade union power: in a most brutal and barbarous fashion, he was rooting out decadence in Germany.  The barbarian has talked of the German need for Lebensraum (living space); perhaps he could find it during his crusade against Bolshevism.  Hitler could be used and then dropped – monsters had their uses.

How different is the dilemma currently (2018) facing Republicans over Trump?

When Bertrand Russell quit our shores in 1950, he said, graciously, some might think:

Perhaps you are all too comfortable to take so much trouble.  Perhaps you will be content with a moderate and humdrum success, but I hope not.  I hope that….you will be content to take the risks involved in aiming at great success rather than acquiesce in the comfortable certainty of a moderate competence

Manning Clark was not optimistic, and neither am I.  We have settled for a safe, inert mediocrity.  People who rock the boat make us very nervous.

Carlyle said that history was a collection of biographies.  That is in large part just what this book of Manning Clark is.  It’s not just that history can be entertaining – it does its job better when it is.  I haven’t enjoyed a book so much for a very long time – at least as far back as when I last read The French Revolution by Carlyle.  At least we got one thing right.

Here and there – Naivety about Afghanistan

The Wolf and I were very fond of Old Jack, our neighbour at Blackwood.  Jack had flown more than forty missions over Europe in Mosquitoes.  His worst fear was coming down and being lynched.  There would be no control over those doing the lynching.  Jack told me, more than once, that those in Vietnam did it a lot harder.  They never knew who might try to kill them.  The laws governing soldiers were simply irrelevant when women and children were engaged in the killing.  That is why, Old Jack said, those coming back from Vietnam were much worse off than the Rats of Tobruk.

This lawless killing is common when people defend their land against foreign soldiers.  A typical instance was what the Americans call their War of Independence.  In a book written years ago about revolutions, I said the following.

Although the Americans like to see themselves as having been the underdogs, they won the War of Independence, as they call it, and it is not hard to isolate some of the reasons why their position was eventually so much stronger than that of the English.  You can apply the following criteria to the American War of Independence – or to the Vietnam War, the Russian war in Afghanistan, the second Iraq war, or the present military operations in Afghanistan.  The phrases ‘home team’ and ‘away team’ are used for convenience and not to detract from the significance of the wars, or the valour shown and losses taken by those who actually fought them and are fighting the present one.

  1. The away team is the biggest in the world, or as the case may be, the only empire in the world, or the second biggest.
  2. The away team is a regular professional army while the home team consists of amateur irregulars.
  3. The professional soldiers in the away team have no advantage over the amateurs in the other team because they have not been trained for this kind of war and people who fight for the cause are more reliable than those who do it for money.
  4. People defending their own soil are far more motivated than those who cross the world to try to bring them into line.
  5. The away team has massive resources and advantages in population and war matériel (such as the navy) and technology, but the home team has local knowledge. 
  6. The home team can move more quickly, avoid pitched battles, and use guerrilla tactics, which are sometimes referred to as terrorism, and which, as we saw, the British objected to as not being fair play.
  7. The away team has problems with morale and supplies that just get worse as time goes on.
  8. The away team finds that winning requires more than just winning battles – they may beat the army of the other side, but they will not beat the country, which has widespread support among its people (even if the people are otherwise split).
  9. The away team has a hopeless dilemma – it has to hit hard to win, but every time it hits hard it loses more hearts and minds.
  10. The home team finds it is easy to generate heroes and leaders; the away team finds it is easy to sack losers.
  11. The home team out-breeds the others – the result is just a matter of time.
  12. The war becomes one of exhaustion and attrition, which in turn exaggerates the above advantage of the home team.
  13. Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

In short, the American colonists felt that they were fighting on the moral high ground, a position that they have never surrendered. Appalling crimes were committed on both sides, especially in the civil war in the south between the Patriots and Loyalists. There were, Churchill said, ‘atrocities such as we have known in our day in Ireland.’ Professor Gordon S Wood said that the ‘war in the lower south became a series of bloody guerrilla skirmishes with atrocities on both sides’ (like Vietnam). But for the intervention of the French, this civil war – guerrilla war may have gone on for years and degenerated into what would happen in Latin America with ‘Caesarism, military rule, army mutinies and revolts, and every kind of cruelty’ (like the Roman Empire).

As I said, all that goes for Afghanistan – except that there the locals were used to living by the gun, and they were assured of Paradise if they got killed.  For all those reasons, they had seen off Britain and Russia – and they would see off the U S – just about as surely as night follows day.  

The word ‘guerrilla’ comes from the war between Spain and Napoleon.  The atrocities there were perhaps the most appalling of all.  They were depicted by Goya in Los desastres de la Guerra.  Those crimes would turn any stomach.  They were committed on behalf of peoples who claimed to be Christian and civilised. 

The dilemma that I referred to above is shown by Cromwell in Ireland.  He was utterly ruthless in putting down insurgents, but his name is linked with Drogheda and infamy.  It is worth recalling the judgment – that is what it was – of Winston Churchill.

…the conscience of man must recoil from the monster of  a faction-god projected from the mind of an ambitious, interested politician on whose lips the words ‘righteousness’ and ‘mercy’ were mockery.  Cromwell in Ireland, disposing of overwhelming strength and using it with merciless wickedness, debased the standards of human conduct and sensibly darkened the journey of mankind….The consequences of Cromwell’s rule in Ireland have distressed and at times distracted English politics down even to the present day…Upon all of us there still lies ‘the curse of Cromwell.’

Cromwell did it for Christ.  And he and Churchill are the only two leaders the English have erected statues to outside their parliament.

Then there was My Lai and a man having his brains blown out on camera and film of a girl screaming in terror from Napalm – that the U S cavalry officer just loved the smell of in the morning.

Anyone believing that crimes as bad and worse would not be committed in Afghanistan was therefore engaged in wilful blindness.

In the course of his evidence in his defamation trial, the VC winner said: ‘We were out there doing a job you cannot explain to people.’  The same goes for those soldiers who were slaughtered at the Somme or Iwo Jima – but at least they knew what they were doing there.

So, Australian soldiers will be prosecuted for crimes committed in what we call a war.  That is as it should be – except that I would like to see the bastards who sent them there in the dock beside them.

Passing Bull 275 – Political commentary

Our press can be very bad on politics.  The other day a leading daily opened a column on page one about the decline of the PM in the polls as follows.

Scott Morrison has resisted the temptation to take the gloves off with premiers using quarantine failures to mask their own inadequacies.  To do otherwise would be counterproductive as he plays a long game.

The suppressed premise is that the states are mainly responsible.  That is the position of this paper.  It is a fair bet that the writer thought he was being complimentary to the PM.  That is also the position of this paper.  It probably did not occur to the writer that he was drawing attention to the main criticism of the P M – that he is more interested in playing the game – leading in opinion polls and at elections – than governing as a matter of principle.  And it probably did not occur to the writer that in declining to blame the states, the P M was avoiding what people dislike most about our federal structure – the capacity of unprincipled people to pass the buck.

Later, the writer refers to the ALP as ‘the other side.’  That is also the position of this paper.

Labor now has a strategy focussed on bringing Morrison’s numbers down through an agenda derived of grievance politic.

Oh, dear – when you are addicted to cant, you are prone to this kind of ungrammatical grab.  ‘Grievance’ has a long history in our constitutional growth.  The parliament could refuse aid to the Crown until it answered their ‘grievances’.  It is the function of the Opposition to air those grievances and advance ways another government might deal with them.  It is not a matter of bringing down the numbers of one man by an ‘agenda’ plastered with a sticky label.

This kind of reporting is fond of the phrase ‘the Canberra bubble.’  It is not a compliment.  But this kind of reporting shows why people just give up on the whole bloody lot of them.

Bloopers

Indeed, Greene seemed to take the remarkable position that it was somehow self-centered of Congress to be trying to find out why the Capitol was attacked. She began her statement by saying that she opposed the commission ‘because I believe this institution’s duty is to serve the people of this country and not itself’—as if convening a joint session to certify the peaceful transfer of power was a kind of petty indulgence.

The New Yorker, 23 May, 2021.

Even though Macron did explicitly accept French responsibility in relation to the Rwandan genocide, his mea culpa was followed up by an equally explicit exoneration: ‘The killers who stalked the swamps, the hills, the churches, did not have the face of France. France was not an accomplice.’ This was a historic acknowledgment written as a non-liability clause.

Financial Times, 6 June 2021

Here and there – Mr Porter and the ABC

If someone does wrong by you, the law may allow you to recover compensation from the wrongdoer.  If the wrong is serious, the compensation may be large.  One such wrong is where someone says something that damages you by causing others to think less of you.  This wrong is called libel or defamation.  And if the libel is bad, the compensation may be very large.

But I am yet to meet a person who has recovered large – even massive – damages for a wrong who is glad that they were wronged so that they could get this compensation.  Ask Geoffrey Rush or Rebel Wilson.  Or a quadriplegic.  A late partner and friend of mine was cruelly defamed.  He recovered massive verdicts from a vulnerable press and his life was utterly ruined by the lawyers in the process.

The wrong of libel is very difficult in litigation because the whole process serves to rehearse the original publication – that is, to aggravate the wrong.  That is one reason why plaintiffs who clear all the hurdles can recover what looks to be huge damages.  But, again, I am yet to meet the plaintiff who says they are net better off at the end of it all than if the wrong had never happened.

Then in a libel action there is usually argument about the meaning of the publication.  Was the publisher saying that the plaintiff was guilty of a crime?  Or merely that there were grounds for saying so?  That then leads to a very murky area.  The publisher often wants to say: ‘I did not say you did it.  But I did say that there were good grounds to suggest that you did it.  And in that meaning, I say that my words were true.’

Next, the conduct of the parties may let in evidence that would not otherwise be allowed.  For example, the defence of protected political discussion is a wholly judge-made law of recent origin.  To succeed, the publisher has to persuade the court that it acted reasonably – by for example putting to the plaintiff precisely what they alleged.  I am not aware of any publisher who has so persuaded the court.  But this defence may let in evidence of what influenced the beliefs of the publisher – for example, friends of the plaintiff alleging that he admitted that he was wrong.

All these factors look to have been present in a magnified form in the case of Mr Porter v ABC.  If the plaintiff was well advised – and he was – he would have been told that this case was not about money.  It was about stanching the bleeding by ending the growing clamour.  If he could do that, and get on with his life, the action would have served the main purpose – always remembering that no plaintiff ever makes a full recovery from the original wrong.

If the ABC were well advised – and they were – they would have been told that they would find it hard to emerge from this fearful process with their reputation intact.  Mr Porter’s lawyers had made very serious but coherent allegations of grossly unprofessional conduct against the ABC.  The victim is dead and her supporters are very emotional – to the point of litigating against one of Mr Porter’s lawyers personally. 

I am advised by very experienced criminal lawyers that even if the victim had been alive and willing to proceed, the authorities would not have prosecuted.  There were too many obvious problems.  The alleged guilt of Mr Porter could not have been determined by the court.  But the allegations against the ABC were susceptible of proof, and causing great harm to the ABC in the process.

The ABC now accepts that there is no basis for saying that Mr Porter could be found guilty of rape.  When challenged in court, the national broadcaster agreed to settle by, among other things, stating: ‘The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil.’

The suggestion that there should be a public inquiry into the fitness for office of Mr Porter always looked misconceived to me.  It all comes back to an allegation that cannot be put to the test required before making a relevant finding against someone.  Ours is not a community where you can lose your job because someone is telling tales about you that cannot be tested.  Since the parties to this case have spent about one million dollars on the best lawyers in the land to come up with the statement of the ABC that the serious charges against Mr Porter could not be substantiated, I do not see how any disinterested observer could with a straight face or in good faith push for some form of inquiry.

Any litigation involves a lawful form of gambling.  On those grounds, the settlement yesterday should not surprise us.  It represents a conclusion of a horrendous and hazardous process that both sides can live with. 

Taxpayers should be grateful.  The friends of the deceased may be in mourning.