Some people complain about a First Nations senator raising her voice before the King of Australia.  The irony is that she and the complainants combined to deny her a  constitutional voice in Australia.

It is best to pass over her behaviour in silence.  (She was, after all, presented to us by the Greens.) It then got really comical.  Some suggested that the senator may have violated her oath of allegiance – and that there may be legal consequences. 

I am not aware of any legal sanction for an alleged breach of this oath.  When the oath evolved, God had real clout.  What does the oath entail now – if there is no divine or civil sanction for breach?  That I will do whatever King Charles III commands me to do?  (Putting to one side that down here, he is only King Charles I.)

I had to take an oath of allegiance to be admitted to practise law.  I was curious, if not worried, by its scope.  What if the Queen commanded me to enlist for war in Vietnam?  Mr Justice Smith told me that they were just putting me on notice that you could still be hanged for treason.

That must be so.  Royal proclamations died centuries ago.  The King of Australia can only act in Australia on the advice of his Australian Ministers.  (We may as well offer the gig to the King of Tonga or Siam.) 

And then the government can only go after me according to the laws of Australia.  That is part of the law of England since 1215, and it is of course fundamental to us – the rule of law.

If you want to commit real heresy, say that the loyalty is personal.  Like that procured by Hitler or sought by Donald Trump.

There are troubling undertones here to accusations of disloyalty.  Most Australians regard ‘patriotism’ as at best mawkish.  In the U S, it is a lethal weapon.  It is normally fired by the ‘conservative’ side.

Any form of subservience to a foreign power is worrying in any nation.  There is therefore another real irony in the fact that many of the most fervent supporters of continuing here with a foreign king also subscribe to a faith that calls for loyalty to a foreign prelate under God.  And no sane person wants to cross God.

So, the English put their current model in place in 1689 and after.  The immediate reason was to prevent any Catholic taking the English throne.  Thousands of people had been killed because of the conflict between England and Rome.  The immediate cause of the Glorious Revolution in 1688 was the refusal of the last Stuart king (James II) to see that his allegiance to Rome put him in a hopeless conflict with his duties as King of England.

That exclusion is still fundamental to the constitution of England and therefore Australia.  It is not just that no Methodist, Muslim, Jew or atheist need apply.  Our king must be in communion with the Church of England.  It is an irony that at our constitutional pinnacle, there is a law that violates our laws about religious discrimination.

Never mind.  The framers of the U S Constitution went to great lengths to ensure freedom of religion and that there should be no state religion.  The King of England is head of the Church of England.  Putting to one side reports that more people in England worship in mosques than in Anglican parish churches, this linkage of government and religion would be utterly anathema in America. 

The result?  Religion has next to no impact on English politics.  In America religion is a major part of the current attempted demolition job. 

And that, my friends, is a real irony.  At least the German churches of old put up some resistance to their debasement and destruction – at the hands of either Berlin or Rome.

The PM accepted benefits from Qantas when he was in an office that could confer benefits on Qantas.  He had therefore accepted benefits which might conflict with his duties as minister.  Since his office is one of public trust, he has a case to answer. 

The trouble with politicians accepting gifts from people in business is that it leaves the impression that those making the gift expect something in return.  The general term is ‘bribe’.  And if the directors of a public company say they just gave away company property, how do they justify that to shareholders?  .  (My old law firm used to give  an important officer of the Supreme Court a bottle of Scotch each Christmas until a Chief Justice, Sir John Young, branded the practice as a bribe.) 

The answer of the PM is that he declared all such benefits on the relevant public register.  Is that enough?

As it seems to me, the problem for the PM is that after thirty years in public life, the PM thinks he has discharged his relevant obligations if he has gone through the relevant procedures.  It is the kind of response you would get from a seasoned public servant, such as a copper, or from a flak-catcher for a bank or an insurance company (or from Bridget Mckenzie, for whom the word ‘rort’ could have been invented).

We see this in company directors.  They say they have complied with the letter of the law when the complaint against them is that they have failed to comply with public expectations, or even the law relating to good conscience.  (And you may recall that the Morrison government wanted to legislate to free directors from such overriding equitable obligations.)

Without wishing to offend the memory of Edith Cavell, conforming to procedural rules is not enough.  Issues of judgment are involved, and in the highest political office in the country.

We must distinguish two separate rolls of a PM.  One is the trust imposed by law on the PM as a minister of the Crown.  The other involves obligations owed as leader of a political party – in a nation where the whole system of parliamentary government depends on the responsible behaviour of the two major parties.  This second role calls for different kinds of judgment, based on loyalty to the party and care for its members, particularly MPs who are not safe.  It has little to do with the law – or ministerial guidelines.

It is clear that some MPs and other members of the party are most unhappy and unsettled because the PM has bought a house far beyond the reach of most Australians, and has enjoyed perks of office for himself and his family that are equally outside their grasp.  (And guidelines are just that.)

It does not look good, and it could do real harm to decent MPs.  Long before all this blew up, I was concerned about what the press calls the ‘optics’ of a Labor PM being duchessed in public by the most loathed, divisive, and overpaid businessman in living memory.

And formal disclosure has even less consequence here.  It is an issue not of law or morals , but judgmentof a very different order – political judgment.  It is very worrying that we have a PM who does not see this.  It is what the English philosopher, Sir Gilbert Ryle called a ‘category mistake’.

And the mind-bending hypocrisy of the opposition just makes us all feel so much worse.  And the popular suspicion that they all have their snouts in the trough just gets worse, as does our descent into mediocrity. 

 You may have seen most of his before, but I refer you to the par. beginning ‘Later, I applied….’  A clear all time record for pure bullshit.

In light of the behaviour of Bendigo Bank about scamming, I decided to switch to the Commonwealth Bank – in which I also hold shares.  (You may recall that I had previously written off NAB.)  This led to further, and in some sense, worse unhappiness.  

 I had been a customer of the Commonwealth Bank through the CDIA account of my self-managed superfund for nearly 20 years.  Commsec, which is owned by the bank, operates the shareholdings, and the CDIA account handles the cash. The Commonwealth Bank therefore knows all there is to know about my super – including the pension I receive from it.  It was about to begin to receive  my C’th pension.

When I first went to the Williamstown branch, I took my home Certificate of Title.  There is no mortgage .  I was told they did not need to see my title.  I then and there opened two personal accounts that showed up on my screen with the CDIA account at CBA Netbank.

I expected  two credit cards.  I got two debit cards.  One bounced publicly at the Yarraville restaurant I patronise – no need to blush there, as I was dealing with literate adults.

So, I then spent another hour at Williamstown completing forms with staff and explaining the above.  We settled on a limit of $5000.  The accounts held by the bank showed it held shares for my fund worth forty times that amount – which is less than what I receive each month by my two pensions.

Could the bank seriously say it needed more documentation to allow credit of $5000?

You bet – just wait for the robots to swing into action.  They wanted more documents about the fund they had held from its inception. This of course came in a DO NOT REPLY email – or by referral to my inbox at Netbank – so aping MyGov.  In illiterate gibberish. 

So, back to Willy for another session of an hour or so – trying to explain this madness.  I took in the fund’s most recent tax return.  Later that day I rang the bank in response to another DO NOT REPLY  – and I got referred to my Inbox.

Please upload the following to document to support your credit card application: 1. most latest Self Manage Super Fund Member Statement (please note the document provided was too old)

And so it goes.  Senseless gibberish.  Next will come another DNR suggesting I call them – and endure the endless delay and deceitful palaver -to find out the demands of ‘Cards Verification’ – whose word is command.  Why not just say what is required – and in a way that the customer can respond to? 

Perhaps, the bank might even call the customer!  Just imagine buying a Toyota and getting a DNR from the dealer asking you to ring a crowded switch to ascertain the next mandate from Tokyo.  That deal would be off the table with the speed of light.  And you would be relieved to be relieved from dealing with such people.

I had so far spoken with about eight people at the bank.  None had the wherewithal or authority to complete a simple banking transaction – and a least some felt uneasy about that.  You can bet that the rich don’t get this brush-off.  There is this vice like determination to sustain a regime that does not allow dignity to operatives within – or respect or common decency for customers without.  It is a dreadful part of the war against humanity.

Finally, I got through to a sensible lady in Sydney, and the matter was fixed that day.  When the card arrived, I got a 56-page booklet.  That would state the conditions – including indemnity for scans – of use and I would accept those conditions busing the card.  Is it seriously contended that the average Australian reads, understands and accepts those conditions?

Later I applied online to increase the credit limit to $10,000.)  Silly boy. The robots responded in less than one minute.  ‘After reviewing your application we’re unable to offer you an increase at this time.’  I pointed out that was simply untrue.  And off we go for another round of beating your head against a brick wall.  But wait.  I sent an email to CBA setting this out.  And Boy!  Did the robots retaliate?  Instanter. 

The email sent (details below) had a match with the High Profanity dictionary used in this organisation. The e-mail has not been sent. Please modify the language used before re-sending the message.

According to the press, the CEO of this bank gets paid north of $7M a year.  That is more than ten times what Australians pay the Chief Justice of the High Court.  And for that, the customers, if not the shareholders(including me in each), get a ship that is breaking up and sinking before our eyes.

It is as if the CBA is playing snakes and ladders with our psyche – or sanity.  Those who devise this cruel mode of contact must be bent on removing any humanity from the dealings between the bank and its customers.  Hence the grinding closure of branches and ATMs.  It did not take me long to conclude the CBA was more brutal than the Bendigo Bank.  And it shows on the premises of the branch.  The atmosphere is like that of Centrelink – a war zone – with the same message about not answering back in anger.  And do those who earn – if that’s the word – say forty times what those on the shop floor earn still have the gall to talk about a ‘social licence’?

Federal government members indulge in the conduct described in the extracts from The Age today below.  Mr Whealy made the comments referred to.  The conduct is certainly unedifying for most electors.  Then the usual suspects are lined up.  (And what a grubby lot they are.) Both parties indulge in this courtesan courtship – at federal and state levels.  It is revolting.  It is a symptom of our loss of faith in government – across the board.

According to John Barlett’s Concordance, Shakespeare used the word ‘slut’ three times – only in comedies of course, and in a less than complimentary way.  The Glossary of C T Onions for ‘sluttish’ has ‘of low or lewd character, unchaste.’  (Revised to 1986.)  The Shorter OED has ‘a woman of low or loose character’.  The Macquarie has for the ‘colloquial’ meaning ‘a person who is indiscriminate or voracious in their consumption of a specified commodity’.  (The reference there to ‘commodity’ follows the use of that term by the Bastard in King John – an item of commerce, like, say, Bitcoin.)

In my view the conduct of the federal ministers referred to would be described as that of sluts in the current usage of that term here.  They should be utterly ashamed of themselves.

When I couple that with their cowardice before the gaming lobby, I despair.

Age extract

Leaked emails reveal how much it costs to dine with Albanese and senior MPs

By James Massola

Prime Minister Anthony Albanese and his ministers are charging businesses tens of thousands of dollars to obtain privileged access to the Labor frontbench, even as the federal government prepares to restrict political donations under long-awaited reforms.

This masthead has obtained copies of 40 invitations sent to members of the Federal Labor Business Forum – one of the party’s key fundraising vehicles – over the past year, which reveal the chance to hobnob with Albanese at a boardroom lunch or dinner typically costs $5000 per person.

The cost of a meal with a member of the ministry ranges from $1500 to $4000, giving businesses access to ministers who oversee key areas of the economy including health, mining and financial services.

A table for eight people plus a VIP guest, typically a minister, can cost up to $18,000, while a table for 10 without a VIP guest costs up to $16,000. Tickets cost $1000-$2000 less for members of Labor’s business forum.

The 40 invitations to various fundraising events were sent out over the year from October 30, 2023, and would be likely to have raised hundreds of thousands of dollars for the federal ALP on top of the membership fees that organisations pay to the forum.

If those membership fees, which are disclosed on the electoral commission’s website for 2022-23, are added together, it would have taken a minimum of $3.8 million.

Labor’s planned donations reform, which it promised in the wake of the 2022 election, include a cap on the amount a candidate can receive, and a limit on how much a party can spend per electorate.

But the party’s business forum technically does not solicit donations under current electoral law, instead taking in money in exchange for memberships and event tickets. How that will be treated under the planned laws, which have not been released, is unclear.

Former judge Anthony Whealy, KC, said the Centre for Public Integrity he chairs had campaigned for years against political fundraising functions because they paired large sums of money with scant transparency.

“As always, the federal parliament is lagging behind the states in terms of donations reform,” Whealy said. “Just the idea of paying these enormous sums of money to have dinner with politicians is unedifying. It means very wealthy people have access to politicians and ordinary people can’t afford it. It looks bad, it is bad, and it is anti-democratic.”

The details of Labor’s sophisticated business-focused fundraising operations comes as the party prepares to bring much-delayed new laws that will tighten the rules on political donations next month, and as the major parties gear up for a federal election that must be held by May next year.

Membership of the forum has four tiers from $33,000 to $110,000 per year, according to The Australian Financial Review, and entitles the member to tickets to events such as an annual budget dinner and policy briefings with ministers.

Members in 2022-23 number more than 70, including consultancies Deloitte and KPMG, retail and industrial conglomerate Wesfarmers, lobby group the Pharmacy Guild, gambling company Sportsbet and mining giant Fortescue.

There is what is called a ‘war’ in the Middle East.  Israel is one party.  The legal status of its opponents has not been identified to me.  Nor have I seen any ‘rules’ for a war between one nation and people who are identified merely by their occupying a neighbouring territory. 

In fact, the hostility between Jewish people and Muslims in the area in and around what used to be called the Holy Land has been going on for many centuries.  One war last century led to Gaza becoming occupied territory.  I do not know what legal standing it has.

What we do know is that a group known as Hamas, which claims to represent the people of Gaza, launched a brutal attack on Israel, and that Israel, as was both expected and intended by Hamas, responded.  The war is still going more than twelve months on.  There is now another front in Lebanon, and Iran has felt obliged to surface openly in the conflict.

Some, including some high in the government of Israel, say that Israel started a war without knowing how to finish it.  That appears to be mandatory in that part of the world.  And we all know about a ‘war on terror’ or a war on a nation holding ‘weapons of mass destruction.’

Most outsiders would say that Hamas is a ‘terrorist’ group.  But you may wish to draw the line at saying that any people who employ terror to achieve rights on land occupied by others are ‘terrorists’.  That would catch the founders of the United States, the Commonwealth of Australia, and the nation of Israel.  (And of course England for about eight hundred years in Ireland.)  You can make up your own mind about those called the ‘settlers’.

It is certainly the case that Hamas is committed to the destruction of Israel.  But it also looks to be the case that Israel has prevented the nation of Palestine being born – with, it must be said, a lot of help from those claiming to represent the people of Palestine.  They may be more fractious than those claiming to stand for the people of Israel.  (And that is a very large statement.)

People in Australia will take sides if they are connected by blood or faith to the combatants in this war overseas.  And their inclination or bias will be quickly apparent, and almost certainly not throw any light or warmth on what is on any view a colossal human tragedy. 

Most of the rest of us just want to keep our mouths shut and do what we can to stay neutral.  What we certainly want to avoid is bringing conflict into Australia that arises from conflict on the other side of the world with which we as a nation have no apparent connection.

I am not sure how the numbers between Jews and Muslims add up here now, but the war in Lebanon will have consequences.  But there is no doubt about the power of the pro-Israel lobby in this country.  And their apparent capacity to influence the local Establishment does not command universal assent.

Prejudiced commentators show bias in deciding how far back we should go in order to understand this war.  Some start at the most recent attack by Hamas.  Some with the birth of Israel.  In truth, this whole area has been a hot spot since the time of Moses.

In my view, the only place to start is with the first books of the bible – that each of the three main faiths gives some heed to. 

Those books stand for the following propositions.  There is only one God.  But there are many tribes or peoples.  Those tribes or peoples are all different and in no way equal.  God has a favourite tribe.  It is therefore in order for some people to be better off than others, just because Providence has raised their tribe above others.  God has promised land to his favourite tribe or people.  And authorised them to kill women and children who get in the way.  One example of that authority is set out below.  People outside of God’s protection – beyond the Pale, if you prefer – could choose between forced labour and death.  Then there is one example of the exercise of that authority.  According to the Bible, with the help of God, the Israelites killed 12,000 men, women and children in one day at the town of Ai – because they had chosen to live on the Promised Land.

Ever since then, that land has seen similar acts of brutality.  They have seen the worst kind of wars – those where each side is convinced, or at least persuaded, that it has God on its side.  Warriors claiming to be Muslims sought conquest by the sword.  So did Crusaders claiming to be Christians.  They got prepared to massacre Muslims by massacring Jews on their way to the Holy Sepulchre.

Many people never know how savage was the blasphemy of the Crusaders because they have not read Gibbon.

A bloody sacrifice was offered by his [Tancred’s] mistaken votaries to the God of the Christians: resistance might provoke, but neither age nor sex could mollify, their implacable rage: they indulged themselves three days in a promiscuous massacre; and the infection of the dead bodies produced an epidemical disease.  After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives whom interest or lassitude persuaded them to spare.….The Holy Sepulchre was now free; and the bloody victors prepared to accomplish their vow.  Bare-headed and bare foot, with contrite hearts and in a humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world; and bedewed with tears of joy and penitence the monument of their redemption.  This union of the fiercest and most tender passions has been variously considered by two philosophers: by the one, as easy and natural; by the other, as absurd and critical.

Here is another instance of history repeating itself in the desecration of religion in a way that leads people like me never wanting to go near a house of God – any God – again.  Here is Gibbon on the Israelite conquests.

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and, as it were, the national God of Israel; and with the most jealous care, separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

The views of Gibbon on Islam were referred to in my book about historians (from which these quotes are taken)

‘How did our brothers and sisters of Asia fare?  Gibbon said that for all his powers of eloquence, Mohammed was an illiterate barbarian, although he says that the ‘base and plebeian origin of Mohammed is an unskilful calumny of the Christians.’  (How did they class the origin of Jesus of Nazareth?)  Gibbon does of course praise Mohammed for dispensing with priests, sacrifices, and monks, but he rejects the doctrine of damnation by which ‘the greater part of mankind has been condemned for their opinions.’  Gibbon was, like most people, fascinated by sex.  He had this comment on Paradise.

Seventy-two Houris, or black-eyed girls, of resplendent beauty, blooming youth, virgin purity, and exquisite sensibility, will be created for the use of the meanest believer; a moment of pleasure will be prolonged to a thousand years, and his faculties will be increased a hundredfold to render him worthy of the felicity …. This image of carnal paradise has provoked the indignation, perhaps the envy of the monks….’

To complete the levelling up, here is Gibbon on the followers of Jesus of Nazareth.

But the primitive church, whose faith was of a much firmer consistence, delivered over, without hesitation, to eternal torture, the far greater part of the human species.  A charitable hope might perhaps be indulged in favour of Socrates, or some other sages of antiquity, who had consulted the light of reason before that of the Gospel had arisen.  But it was unanimously affirmed that those who, since the birth or the death of Christ, had obstinately persisted in the worship of the daemons, neither deserved nor could expect a pardon from the irritated justice of the Deity.  These rigid sentiments, which had been unknown to the ancient world, appear to have infused a spirit of bitterness into a system of love and harmony.

To return to the present, the current casualty rate in the war is running at about twenty to one.  There are tens of thousands of Australians who have an interest in the conflict on either side.  Anyone claiming that one side is blameless is blind.  Anyone claiming the right to give an objective judgment is deluded.

So, the only course for our government is one of neutrality.  That is, I think, the course followed by the relevant minister, who is so much ahead of her colleagues, it is embarrassing.

But it is not the course followed by the Leader of the Opposition.  He puts votes before principle and the national interest.  He has done this before.  He did it to our First Nations peoples.  It is ironic that he supports the claims on one side in the Middle East that go back a few thousand years, but he wiped off like a dirty bum the claims of peoples here that go back sixty thousand years.

Peter Dutton should be ashamed of himself.  But the sometime copper from Queensland does not know how to say ‘sorry’.  We know that, too.

Texts on the Promised Land

Deuteronomy 20:

¹⁰ When you march up to attack a city, make its people an offer of peace. ¹¹ If they accept and open their gates, all the people in it shall be subject to forced labor and shall work for you. ¹² If they refuse to make peace and they engage you in battle, lay siege to that city. ¹³ When the Lord your God delivers it into your hand, put to the sword all the men in it. ¹⁴ As for the women, the children, the livestock and everything else in the city, you may take these as plunder for yourselves. And you may use the plunder the Lord your God gives you from your enemies. ¹⁵ This is how you are to treat all the cities that are at a distance from you and do not belong to the nations nearby.

¹⁶ However, in the cities of the nations the Lord your God is giving you as an inheritance, do not leave alive anything that breathes. ¹⁷ Completely destroy^[a] them—the Hittites, Amorites, Canaanites, Perizzites, Hivites and Jebusites—as the Lord your God has commanded you. ¹⁸ Otherwise, they will teach you to follow all the detestable things they do in worshiping their gods, and you will sin against the Lord your God.

Joshua 8

⁸ And it shall be, when ye have taken the city, that ye shall set the city on fire: according to the commandment of the Lord shall ye do. See, I have commanded you.

⁹ Joshua therefore sent them forth: and they went to lie in ambush, and abode between Bethel and Ai, on the west side of Ai: but Joshua lodged that night among the people.

¹⁰ And Joshua rose up early in the morning, and numbered the people, and went up, he and the elders of Israel, before the people to Ai.

¹¹ And all the people, even the people of war that were with him, went up, and drew nigh, and came before the city, and pitched on the north side of Ai: now there was a valley between them and Ai.

¹² And he took about five thousand men, and set them to lie in ambush between Bethel and Ai, on the west side of the city.

¹³ And when they had set the people, even all the host that was on the north of the city, and their liers in wait on the west of the city, Joshua went that night into the midst of the valley.

¹⁴ And it came to pass, when the king of Ai saw it, that they hasted and rose up early, and the men of the city went out against Israel to battle, he and all his people, at a time appointed, before the plain; but he wist not that there were liers in ambush against him behind the city.

¹⁵ And Joshua and all Israel made as if they were beaten before them, and fled by the way of the wilderness.

¹⁶ And all the people that were in Ai were called together to pursue after them: and they pursued after Joshua, and were drawn away from the city.

¹⁷ And there was not a man left in Ai or Bethel, that went not out after Israel: and they left the city open, and pursued after Israel.

¹⁸ And the Lord said unto Joshua, Stretch out the spear that is in thy hand toward Ai; for I will give it into thine hand. And Joshua stretched out the spear that he had in his hand toward the city.

¹⁹ And the ambush arose quickly out of their place, and they ran as soon as he had stretched out his hand: and they entered into the city, and took it, and hasted and set the city on fire.

²⁰ And when the men of Ai looked behind them, they saw, and, behold, the smoke of the city ascended up to heaven, and they had no power to flee this way or that way: and the people that fled to the wilderness turned back upon the pursuers.

²¹ And when Joshua and all Israel saw that the ambush had taken the city, and that the smoke of the city ascended, then they turned again, and slew the men of Ai.

²² And the other issued out of the city against them; so they were in the midst of Israel, some on this side, and some on that side: and they smote them, so that they let none of them remain or escape.

²³ And the king of Ai they took alive, and brought him to Joshua.

²⁴ And it came to pass, when Israel had made an end of slaying all the inhabitants of Ai in the field, in the wilderness wherein they chased them, and when they were all fallen on the edge of the sword, until they were consumed, that all the Israelites returned unto Ai, and smote it with the edge of the sword.

²⁵ And so it was, that all that fell that day, both of men and women, were twelve thousand, even all the men of Ai.

²⁶ For Joshua drew not his hand back, wherewith he stretched out the spear, until he had utterly destroyed all the inhabitants of Ai.

²⁷ Only the cattle and the spoil of that city Israel took for a prey unto themselves, according unto the word of the Lord which he commanded Joshua.

²⁸ And Joshua burnt Ai, and made it an heap for ever, even a desolation unto this day.

A libel action is like marriage.  It is not to be entered into lightly or ill-advisedly.  If it goes wrong, and plenty do, it can destroy all that it touches.

Dickens began Bleak House, his indictment of the Court of Chancery, by saying of it that it ‘gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, ‘Suffer any wrong that can be done you rather than come here!’’

The string of long and squalid libel actions in the Federal Court greatly concerns many people, and not just lawyers.  Sordid political squabbles, maintained by interlopers, are absorbing valuable resources, and denying decent people with real grievances their day in court – at your and my expense.   The only dividend for taxpayers looks to be the judicial version of Days of Our Lives live on morning TV.

Allow me, please, to suggest five reasons why we have got into this mess.

1 Witness statements

I have railed against this for so long, it is a wonder they have not put the Dog Act on me.  Here is an example from a paper The Law of Evidence and the Mess We Are In.  (I think it is in the Victorian Bar News.)

The first thing to notice – it is hardly a rule, but it should be self-evident – is that the evidence must come from the witness and not their lawyer.  Counsel may not phrase the question in a way that suggests the answer.  Such a question is called a leading question. …. So, immediately we come to one anomaly with evidence tendered in writing, by affidavit or witness statement.  There, the lawyers don’t just suggest the answer – they write it.  The perils are obvious.  This is why the law banned written statements in crime.  As one seasoned judge remarked, it was just a matter of time before those in court rose up crying ‘Author!  Author!’  If there is no issue about a statement, you can lead the witness; if there is, you must not.  Written evidence is therefore either unnecessary or tainted. 

2 Failure of the judges to control time

The highest courts in the world impose strict time limits on parties and their counsel in ‘enterprises of great pitch and moment’.  It is wrong that the judges do not do this at trial, where the parties and their counsel may be less equipped to handle or manage the process, and where the primary job of the judge is to ensure a fair hearing on all sides.  Delay and expense suit the bad guys.

The judges have compounded their error by micro-managing pretrial issues.  These send costs through the roof; that puts the law beyond the reach of most of us; and it produces generations of lawyers – and hence, judges – who don’t know how to run a common law trial. 

We are strangling our inheritance as we speak – including the most valuable part of that inheritance, trial by jury.  We are in the process of killing off a millennium of civil rights in one generation.

They did things differently and, in my view, better in Athens two thousand four hundred years ago.  This is from a book of mine, Parallel Trials (Amazon, 2013, Ch 8) – the trials of Socrates and Jesus of Nazareth.  This is on Athens:

Litigants had to represent themselves.  They could not get legal representation. The most that they could do was to get a speech writer to write their speech.  The accuser went first. Then came the defendant. Then the accuser again.  Then the defendant – who had the last word.  This gave the accuser a reply but the defendant the last word – in every case.  Each side presented their case in the form of a linear or continuous speech, with evidence being adduced where appropriate.  Strict time limits were enforced.  There were laws relating to witnesses’ testimony, oaths, contracts and evidence extracted under torture.  Written depositions precluded testing the testimony of those witnesses in court, but the law gave an action for false testimony….

At the end of the hearing, the judges (the jurors) queued to cast their vote.  There was no consultation or deliberation.  In cases of assessed penalties, each side submitted a penalty, and the judges selected one or the other – there was no middle ground.  This was a process thought to encourage intellectual honesty on each side.

If it matters, in thirty years of hearing cases, I applied time limits to both evidence giving and the making of submissions.  Some screamed like cut cats; I got sued now and then; but I never heard a litigant – at least not a bona fide litigant – complain.  And no case was ever on our list from go to woe for longer than six weeks.

3 Few counsel in civil cases can cross-examine now

This is the result of many factors that overlap.  It may be sufficient if I set out part of the paper I referred to above.

When I started in the law, the Xerox machine was becoming the golden goose.  Now it is the email machine that is the Crown High Prince of litigation.  With avalanches of documentation produced on discovery, witness statements, and written statements of the case, cross-examination is now as close to extinction as examination in chief.  I realised this some years ago while watching counsel in the Leveson inquiry in England put one document after another to the witness on live TV, and look especially pleased when he looked straight at the camera.  We might hope that his family enjoyed the show, because my revulsion led me to turn it off.  Whatever else it may have been, it was not cross-examination.  ‘You and I are going on a little journey, Sunshine, and we will wave under your nose every dirty bit of laundry and every silly or naughty thing you have ever said in the past until you give us what we want.  And no, my name is not George Orwell.’  It was like a lazy marriage of P T Barnum and Torquemada.

It is revolting in so many ways.  I was not much good at cross-examining, but at least I was brought up with authentic masters of the craft, like Neil McPhee, Jeff Sher, and Tom Hughes (and Tom was the most imposing of them all.)  They are all gone now.

Sir John Starke had a most fearful reputation as a cross-examiner, but I heard him say, on more than one occasion, and with conviction, that he felt relief if when he sat down, his case was not worse off. 

The problem now seems to be that counsel do not know when to sit down – or are just too scared to do just that.  This is in turn related to counsel’s lack of hard experience – the only source of learning for the practice of the law.  Too many barristers now have not been roughed up in lower courts.  They lack the courage to accept responsibility for the proper presentation of their case.  This goes to the heart of our many failings.  The first lesson of advocacy is – if you have a point, make it; otherwise, shut up.  And never take the shine off a good point by serving up a dud.  It is just so sad when counsel do just that to you.  Because they have never learned better.  And you have been let down yet again.

It is about a quarter of a century since I did a Summer School at Harvard on Class Actions.  The lecturer said so few got to trial, that lawyers did not know how to run them.  That is now happening here across the board – a least in civil actions.  And if you have not learned to be a barrister, you have not trained to be a judge.  And so it goes.

And I gather that our Supreme Court in Victoria is at last giving up on witness statements.  This led someone with a Federal Court practice to say that they had little experience with leading evidence viva voce.  How will it all end?   It is one thing not to be able to conduct a trial by jury.  It is altogether a different thing not to be able to present evidence.  Even if we have been killing all this off during my lifetime.

4 Failing to apply the law of evidence

The law of evidence is not hard to understand or apply.  The rules apply those of logic and fairness.  A question must relate to a matter in issue and it will not be allowed if it is unfair or will lead to the trial becoming unfair.  The judges have not enforced two rules and as a result what is described as ‘cross-examination’ has become a grotesquely protracted farce.

First, if a question does not relate to a fact in issue, but only to credit, counsel is bound by the answer.  The other party cannot call evidence to contradict that answer.  Otherwise, the whole trial is exposed to an infinite regress.  Every bunny must be chased down a hole.  You also see the delusion held by so many at the bar and bench that cross-examination is in some kind of no-fly zone for the laws of evidence.  There is a general miasma about this that is not the law. So, we have long invasions of private lives and long forgotten slips on the ether.  And no one who has experienced it would ever wish to go near a court again.

Secondly, the court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question is misleading or confusing; or is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate (Commonwealth Evidence Act, 1995, s 41).  Here is no generous power.  Here is a very broad duty expressed in the imperative. 

So, after a while where counsel is slow and not scoring points, the judge must consider applying that law.  And if counsel is still probing after, say, an hour, it is time to intervene.  You start gently.  ‘How does any of this assist the court (or the process)?’  If an amber light is not sufficient, go straight to red.  The judge is there not just to give a fair hearing to the parties, but to act in the interests of those waiting to get on in the ever-lengthening lists of cases.  And the wording of the law shows that the duty of the judge is not contingent upon counsel calling on the judge for a ruling.

But we now see witnesses put to the test not just for hours but for days.  Is it possible to say that the judges are properly applying the law when witnesses get treated like this?  How many witnesses did not feel that their interrogation was annoying, harassing, intimidating, offensive, oppressive, humiliating, repetitive, belittling, insulting, or otherwise inappropriate?  In the name of Heaven, why not invoke the Bill of Rights, that is still part of our law?  It proscribes punishments that are ‘cruel or unusual’.  We could be going back 800 years to the medieval trial by ordeal. 

And how do you advise people about entering what Sir Owen Dixon called ‘the hall of justice,’ if part of the price is that you may have your dirty washing laid out in public while you are interrogated, if necessary, for days?  And the publications of your disclosures are protected by absolute privilege in court, and qualified privilege in the press?  So that when the washing is finished, you are left to hang out to dry.  And you may never be the same again.

When old-timers in the law like me see these trials go clean off the rails, we look at each other with wild surmise, and we wonder if the trial is unfair and therefore unlawful.

5 The decline of trial by jury

The Federal Court was not set up to conduct common law trials by jury, and so far as I am aware, it has never conducted one.  For whatever reason, that is not their schtick. 

But defamation trials had always been thought best dealt with by a jury.  So much of them depends on views about current community opinion and assessing the credit of witnesses.  Sensible judges brought up in the common law are so grateful that they can put these issues before you and me.  The law used to speak of a party putting himself on his country.

It is simple enough.  We elect groups of people to make laws.  And we appoint groups of people to decide how those laws apply to cases that turn on evidence that they assess.  And all this is fundamental to our understanding of the rule of law.  The jury after all did come before Magna Carta.

Let us look at a libel trial in London when I was starting at university.  A Polish doctor named Dering sued the author Leon Uris over a passage in the novel Exodus.  The passage in the book sued upon referred to a German doctor at Auschwitz using ‘women as guinea-pigs’ and said that Dering, the name being spelt wrongly, had ‘performed seventeen thousand experiments in surgery without anaesthetic.’  The action became a de facto war crimes trial that gripped the nation and the international press.  (I take all this from Auschwitz in England, MacGibbon and Kee, 1965.  Lord Denning wrote the Foreword.)

The writ issued in December 1962.  The Statement of Claim covered a couple of pages.  So did the Defence delivered in February 1963.  But the details of the plea of truth – ‘particulars of justification’ in the jargon – cover about three pages in the book about the trial. 

The publishers admitted the publication, and that it was defamatory, but said that with some exceptions, what was said of Dering in one short paragraph in a long novel was true.  They gave details which had to be supplemented when further evidence, including a vital hospital register, was uncovered.  (The ruling on that issue is reported.)

The case came on for hearing before a London jury in April 1964.  The trial ran for 18 sitting days.  That was then a very long trial in England.  No witness gave evidence in English except for four English expert witnesses.  There were problems with the interpreters.  As I recall it, counsel apologised to the jury for the length of the trial.

The summing up of the judge took five hours.  The jury came back in less than three hours with a derisory verdict for the plaintiff of a ha’penny. 

There was then an argument about costs because of the lowness of that amount, and a prior offer of settlement by a payment into court.  That was of course determined on the spot in one of the two reported rulings of one or two pages.  The trial was over.  Judgment was entered a little over a day after the conclusion of the evidence and addresses to the jury.  The judge was empanelling a jury in the next case in his list when the jury returned.  He interrupted to give his rulings and then went about his business ( and the next plaintiff had a win).

Compare that to the case here of the VC winner found by a judge to have committed war crimes.  I will not rehearse the issues, and I will leave to God the question of whether they are graver than those in Dering v Uris.  But what I might call the house-keeping details are horrifying in themselves.  I was told the following.  The Statement of Claim runs for 136 pages.  The Defence was only 27 pages.  53 witness statements were filed.  Forty witnesses were called.  There were 38 interim decisions.  The trial ran for 110 sitting days.  That’s six times the length of Dering v Uris.  The media put a figure of $25,000,000 for costs all up.  The judgment was vast in length.  That kind of forensic carnage mirrors the military horror seen in All Quiet on the Western Front.

Then there was the quagmire of Lehrmann and Higgins.  That case ruined the reputation of anyone who came near it, including that of the court, with a sordid soap opera that challenged Days of Our Lives in its relentless pursuit of banality – with a seedy two-day encore on an issue of credit.  Then the judge spent a morning reading a summary of a judgment of 340 pages.  It had become an inquisition into the working of the Australian press.  (It reminded old-timers of the old days when the Australian Broadcasting Tribunal thought it was being run by the Federal Court.)  Then the judge called for the transcript of remarks made by a lawyer for a party to the press.  Well, at least this form of Big Brother does not come out in Ermine.  But this kind of three ring circus is bad for all of us.  And as we speak, the appeal is still being considered – something that all counsel in Dering were so openly determined to avoid.

And all this is ruinous for the standing of our judges in our community.  As I read the judgment in another cause celebre, the judge spent about seventy pages on the evidence of one witness.

Well – there you have five reasons why I think our libel actions have become unmanageable.  We need to work on all five if we are to recover.  

And that is before we get to the subject of appeals.  They hardly bear thinking of in this context, and we must bear steadily in mind that irrespective of the result, any appeal is a confession of failure.  It prolongs the agony, and emphasises the chanciness of it all.  Litigation is, after all, a licensed lottery.

We also need to look at reviving the law about maintenance in litigation.  As I understand our common law, an unwarranted intervention in litigation to cause strife was both a civil wrong and a criminal offence.  A least, that was the view of Sir Carleton Allen.

It is, however, still the law that anybody who, without any of the various excuses, which are now well recognised, maintains another in his suit, whether as a mere busybody or financial gain, is liable to criminal penalties; and, according to the better opinion, it does not matter whether the suit, plaint or defence, which he unwarrantably maintains, is successful or unsuccessful.  (The Queen’s Peace, Stevens & Sons, 1953, 57.)

As matters stand, it looks to me that you or I could be bankrupted if we got sued for libel by man of straw whose only asset was the readiness of a dark agent to back him for that purpose.  No law should allow that.

It was my privilege more than half a century ago to have served as associate to Mr Justice T W Smith on the Victorian Supreme Court.  He was regarded as the preeminent judge in his time.  He was an equity lawyer who oozed respect for the jury.  In that respect, he was like Sir Owen Dixon.  The directions of Smith, J to the jury in murder cases are still cited as the law.  He wrote his judgments with a dip pen at a stand-up desk. .  That was, I suppose, some disincentive to going in for the endless footnoted tracts that we get clobbered with today.  He would not have comprehended judges taking time off to write judgments – not least when a jury can come back in a day or so with a verdict that people can understand.

Had I been able to put the work in this note to His Honour, he would have looked at it and me with complete despair.

Nothing beside remains.  Round the decay

Of that colossal Wreck, boundless and bare

The lone and level sands stretch far away.

Doubtless many out there will be as appalled as I am about how the members of the Writers’ Guild – my term – club together to write bullshit blurbs for each other’s books.  I got a cracker the other day.  A C Grayling is an English philosopher who will write about anything at the drop of a hat.  He has written a book Philosophy and Life.  Since I have written about this, believing that the philosophy taught  at our universities is practically useless, I picked the book up. 

Here were the standard blurbs.  One stood out:

Grayling’s intimate and vital dialogue with many of the greatest thinkers since antiquity will inspire each of us to discover the best life we are capable of living.

This is the very ecstasy of bullshit – ‘Simon May, author of Love: A History.’

So, I buy a copy of the book with little hope and great foreboding.    It is about the Socratic Question: ‘What sort of person should I be?’  Any ‘reflective person,’ we are told, will pause and ask what really matters.  Hmmm….On page seven: ‘The word I will use to capture this net of currently prevailing social sentiment, opinion, custom, tradition and expectation is ‘normativity.’’  The foreboding is turning into despair.  Then on page fifteen: ‘In considering who we are, we have to take into account the related questions of intersectionality and positionality.’ 

Well, there goes my $28.  By page fifteen.  I should have known better.  Divide the world in two.  Those who have majored in philosophy at university – including me – and those who have not.  The former recognises this as bullshit immediately; the latter just gives up, and goes back to celebrating the mystère of  the rugby league of Melbourne Storm (who just lost a Grand Final). 

And that would be just as well.  By page 315, we get:

A reading of Dewey and Heidegger, and a grasp of the implications of Wittgenstein’s ‘private language argument’ for the Cartesian tradition in epistemology, are healthy correctives when one is tempted to wonder if a subjectively idealist epistemological solipsism might be true.

So, I look up Simon May in the Index.  Voilà!  Simon gets the Rolls Royce treatment for his thoughts on ‘love’ over  nearly two pages.

The point is well made….And then May points out how disastrously high this raises expectations: no imperfect mortal can provide what a divine lover offers.  Being loved by God gives the beloved a home in the universe,  a guarantee of existential safety, which May calls ‘ontological rootedness’….

There it all is – red-handed. 

So, next time you run into a philosopher, ask them how long it has been since they felt ontologically rooted.

For centuries, Oxbridge taught – no, it preached – that ancient Greece and Rome were civilised.  For Shakespeare, that notion was as daft as saying that the Middle Ages gave us chivalry.  His Rome in Titus Andronicus, a violent early tragedy, was ‘a wilderness of tigers’.  Yes, but tigers do not kill cruelly, or for the sake of it.  The Romans do in this play.  They are no better than the barbarian Goths they looked  down on.  Elsewhere, I set out my views on this play, which I admire.  Its tone is set by the opening citation set out below.

At a summer school at Cambridge, my history tutor said he was glad I was taken by Carlisle, The French Revolution.  ‘Treat it just like  an epic poem or opera.’  Spot on.  Last night I watched the Julie Taymor movie again for the first time in many years – after I gave away my book and film libraries. 

I had forgotten just how gutsy this whole project was.  It grabs you by the throat from the very start – and does not let go.  It is like a dream sequence, and the themes crash and swirl like the last movement of Tchaikovsky’s fifth.  Or the finale of Anna Karenina danced by Plisetskaya, or the medieval fantasy of the ballet The Hunchback of Notre Dame.  It is a work of art that defies being boxed in. 

In accordance with procedures laid down, the critics did not understand it, and it bombed at the box office.  We tend to be scared of people of great talent who challenge us.

My views about it are as below.  I had forgotten the intriguing beginning, but not the end.  Nor would most of the crowd who saw it with me at the Longford when it came out.  It is so ‘in your face’ that I kept sensing commedia del’ arte – which is my trigger for high theatre.  I was inclined to the view that Saturninus was overdone, but then I found myself looking at Adolf Hitler in drag.  Some of the latterday Rome sets reminded me of de Chirico, who had such an influence on Jeffrey Smart.  Titus (Hopkins) in the bath was a direct take of Marat, by David, in the French Revolution.  And the following scenes, including my favourite stage direction, certainly held the complete attention of the audience, who were left in quiet wonderment at the end, and gasping for the daylight.

As it happens, I had just been reading up on Jonathan Bate, who now stands as high for me in the pantheon as Tony Tanner.  In Mad About Shakespeare (2022), Bate said he was a ‘huge admirer’ of the play.  ‘For me, Titus was not a self-indulgent spectacle of barbarism, but a profound meditation on how human beings cope, or fail to cope, with extreme suffering.’  God knows we need all of that in October, 2024.  Bate redid the Arden version and said that his edition, and a recent version of the play, and ‘Julie Taymor’s film with Anthony Hopkins in the lead role…helped to rehabilitate it by taking its emotional range, its wit and its stagecraft  seriously.’

This play states my living nightmare – that we are all just like Hottentots treading blindly around the rim of an active volcano, and God knows which of us will fall in.  It teaches us that all of us have a capacity for evil, and that the most dangerous among us are those who have God on their side – not least when they are opposed  by people who have God on their side.

The Taymor film may well be as engaging as any production I have seen of Shakespeare  – with the possible exception of Richard Burton’s Hamlet in New York.  There the audience erupted with relief at the comic parts.  Here the audience is in it up to its neck from the start – especially as we realise that we are in the hands of a consummate director.  And we wind up with a  sense of grotesque annihilation that is different to what we get with King Lear.  The grotesque on stage matches the grotesque in life.

Which is just another reason why it is not a good idea to second guess this playwright.

*

BOOK EXTRACT

TITUS ANDRONICUS A WILDERNESS OF TIGERS

…why should nature build so foul a den

 Unless the gods delight in tragedies?
(Marcus, Brother of Titus Andronicus)

Since in our fonder moments, we believe that our civilisation derives from ancient Athens and ancient Rome, we want to believe and we do believe that they were civilised. Neither was. Each sustained itself on slavery and empire; each practised cruelty and destruction on the subjects of its empire, and on its own citizens as required; each subscribed to a religion of many gods based on sacrifice, ritual and superstition that has no adherents in any place in the world now; neither city, at the time we are talking of, had received the Mosaic Law, much less the Sermon on the Mount.

These facts, which are not in dispute, mean that we cannot begin to refer to ancient Athens or ancient Rome as civilised – no matter what else they may have achieved in letters, the arts, or law. Some very small number of the citizens of either, a privileged elite, may have been able to enjoy the rudiments of what we call a civilised life, but only the more blind of our own privileged elites could say that Athens or Rome was civilised.

Rome had a particular problem. It ruled a mighty empire but was unable to rule itself. It had no constitution that prescribed the appointment or powers of its Emperors. This was a lottery conducted by the army. It was as if the Reich had been sustained, and would probably have produced a Fuehrer as required on appointment by the SS. For a long time in Rome the equivalent of the SS was the Praetorian Guard.

At the start of Titus Andronicus, Titus returns from many years at war with the Goths. There is a bad dispute over who will now be Emperor. First, Titus sacrifices a son of Tamora, the Queen of the Goths, to propitiate the shades of those sons of his and Rome that have died during the wars. She and her sons vow revenge. Then Titus refuses the purple and anoints the evil Saturninus as the new Emperor. Saturninus says he will marry Lavinia, the daughter of Titus. When she says that she is committed, Saturninus marries Tamora instead.

The hard fate of Titus is therefore sealed. Two sons of Tamora rape and mutilate Lavinia and murder a brother of the new Emperor, and get two sons of Titus convicted for that murder. In his extremity of grief Titus appears to go mad, but after Lavinia reveals who mutilated her, Titus is able to be revenged on all of them. He, naturally, dies in the process. The play was advertised as a Roman Tragedy.

This, then, is a very bloody melodrama. But it is not as comically graphic as the gruesome and inane work of Quentin Tarantino, and it was written by a playwright named William Shakespeare. The plot also has Aaron, a black lover of Tamora, an elementally evil man who prefigures Iago (in Othello). Titus himself prefigures King Lear – he is an aging authority given to ungovernable anger and wild folly as he declines in both age and power – and Othello
– he is a soldier much better in battle than in the corridors of power at Rome – and Hamlet – he is a man bent on revenge and takes cover behind madness for that purpose.

In the course of this play, any veneer of civilisation that Rome may have claimed is stripped away. Anyone who has read Suetonius’ The Lives of the Caesars, or The Decline and Fall of the Roman Empire by Edward Gibbon, will know that the failure of governance and the appalling crimes referred to in this play, were all quite mainstream. The Romans, like the Greeks, referred to outsiders as ‘barbarians’. Both those ancient powers fell to ‘barbarians’. The Goths were of course ‘barbarians’, but when Titus says that a Goth must be sacrificed for the shades of his sons, a barbarian son of Tamora says, with complete justice:

Was never Scythia half so barbarous. (1.1.131)

When Lucius complains of banishment from Rome, Titus says:
Why, foolish Lucius, dost thou not perceive
That Rome is but a wilderness of tigers?
Tigers must prey, and Rome affords no prey
But mine and mine. How happy art thou then,
From these devourers to be banish’ed! (3.1.53-57)

The forest is twice identified as being a place fit for rape and villainy (2.1.116 and 4.1.58). The brother of Titus is led to say:
O, why should nature build so foul a den,
Unless the gods delight in tragedies? (4.1.59-60)

The evil capacity of the forest stands for the evil capacity of Rome itself. The mutilated form of the innocent Lavinia stands for what Rome can do to the innocent at large.

The action has its dry moments, especially those involving the evil Aaron. When one of Tamora’s sons says ‘Thou hast undone our mother’, Aaron coolly replies, ‘Villain, I have done thy mother’ (4.2.76). But for the most part, the writing is a kind of epic melodrama. Since there is a critical consensus that this play is not all that good, we might set out at length some of the poetry in which Titus reflects on his tragedy.

For now I stand as one upon a rock,
Environ’d with a wilderness of sea
Who marks the waxing tide grow wave by wave,
Expecting ever when some envious surge
Will in its brinish bowels swallow him.
This way to death my wretched sons are gone,
Here stand my other son, a banished man,
And here my brother weeping at my woes:
But that which gives my soul the greatest spurn
Is dear Lavinia, dearer than my soul.
Had I but seen thy picture in this plight,
It would have maddened me: what shall I do
Now I behold thy lively body so?
Thou hast no hands to wipe away thy tears,
Nor tongue to tell me who hath martr’ed thee.
…
Gentle Lavinia, let me kiss thy lips,
Or make some sign how I may do thee ease.
Shall thy good uncle, and thy brother Lucius,
And thou, and I, sit round about some fountain,
Looking all downwards, to behold our cheeks

How they are stained, like meadows yet not dry
With miry slime left on them by a flood?
And in the fountain shall we gaze so long
Till the fresh taste be taken up from that clearness,
And made a brine-pit with our bitter tears?
Or shall we cut away our hands, like thine?
Or shall we bite our tongues, and in dumb shows
Pass the remainder of our hateful days?
What shall we do? Let us, that have our tongues
Plot some device of further misery,
To make us wondered at in time to come. (3.1.93-107 & 120-135)

There are two reasons why I am very fond of this play, which in my view is a great play. The first is that it is a theatrical demolition of the notion that the ancients were civilised, and a reminder of how little there is that separates us from the jungle. We might perhaps add that the historians say that Rome did not practise human sacrifice as such, but the adherents of at least one faith might take the view that such a proposition can only be contained by a very narrow interpretation of the word ‘sacrifice’.

The second reason is that we owe a very great debt to Julie Taymor. Before she directed the film Titus, her only credit was Lion King on Broadway. This is a wonderful film. It is a beautifully executed presentation on the screen of a play that it is very hard properly to put on the stage. Titus Andronicus may be one of those plays which is best seen on the screen above any other form of reproduction.

The film is brilliantly set and choreographed. Anthony Hopkins and Jessica Lange are the leads. The supreme Geraldine McEwen has a small part that finds the wrong end of a billiard cue. While the sources are Roman, this film comes across as the archetypal Greek tragedy of a cursed house. Hopkins is perfect as the square-jawed servant of public duty. Jessica Lange still conveys that sexy fatality. As the play is developed in the film, it could be at the root of the great Westerns. Most of the show is about how bad the bad guys are, so that when their dispatch comes at the end, the sense of relief is complete. This is the revenge show of all revenge shows.

The play culminates in Act 5, scene 2. This is well done – and brilliantly done in the film. It is very high theatre. It is a kind of noir (or Negri) commedia dell-arte. Titus has been firing arrows with messages tied around them, into the heavens. But so that they land near the emperor. He and Tamora are convinced Titus is mad. Tamora calls on him in that belief to trick him into handing over the son of his who is marching against them. She calls on Titus in the form of the character Revenge. She says her two sons are Rape and Murder. The mad hero comments twice on how much they look like the sons of the Queen of the Goths. He is not duped. The irony is dripping. Tamora is tricked into entrusting her sons to Titus. He tells them that when he has killed them, they will be reduced to the makings of a pie for their mother. If you see this film at a cinema the patrons tend to get audibly squeamish when the next scene opens with Anthony Hopkins with a cheesy grin and a chef’s hat. The stage direction reads Enter Titus like a cook, placing the meat on the table. (In one CD, someone rings a tasteful dinner bell.) Titus wrings the neck of his daughter Lavinia. Why? She has been defiled. By whom? Your sons. Arrest them. They are already here in the pie that you are eating. This is followed by what Manning Clark called uproar (in the play it is a great tumult). People get stabbed all over the place, there is an operatic pile of corpses, then order is restored and there is a new beginning.

We have never been able to joke about rape and the treatment of Lavinia may be much more difficult for directors and audiences now than it was four hundred years ago. But it is very properly done in this production, and just takes its part with the other sad cruelties as part of the strangulated poetry of an ancient barbaric cycle.

Just who is civilised and who is barbaric depends on from which side you are looking. It is much the same with revenge– just who is revenging whom depends on what part of the cycle you come in at. Unless the family of Titus has extinguished the line of Tamora– which we are inclined to call ethnic cleansing now – the cycle of the blood feud will go on. It was the first function of our ancient laws to put an end to the blood feud. It does not look good for the people of Rome at the end of this play. The dead Tamora is to be thrown ‘forth to birds and beasts of prey’ (5.3.198), but the film concludes with the half-caste bastard child being carried into the future, the reverse of the revolting sacrifice of a child on which this awful cycle began. The symmetry is almost fearful.

Another footy season gone.  Another Brownlow and another Grand Final.  They often prompt discussion about who was the ‘best’ player.

I cannot recall anyone setting out criteria for what constitutes the ‘best’ player in a given game or at a given time.  (And I put to one side the addition for the Brownlow of ‘and fairest’ – and what I regard as the primitive rule that you are disqualified automatically if you get suspended.)

I suspect that the simplest criterion of best (on ground) is ‘eye-catching.’  If I am right, that is wrong. 

Football is a team game.  The object of each team is to beat the other.  The ‘best’ player should therefore be the member of the team who contributes most toward the objective of their team’s finishing ahead of the other.  And on a rational assessment, that may not be the player who catches the eye, or figures in the most memorable parts of the game. 

Take some examples.  Footballers like Hart, Ablett, and Carey were known potential Grand Final winners.  Someone who effectively stopped one doing just that may have contributed most to his team’s win even if he did not get one kick.  A winger in rugby may score the only three tries in a winning score, but all he may have done is to finish off the hard or brilliant work of all his team mates, some of whom have contributed far more to the win.  Alternatively, someone like Barassi could turn the game, and deflate the opposition, in just one or two passages of play – and effectively be the match-winner although otherwise quiet all day.  (Think of Shane Warne.  Or Petracca in 2021.)

It is notorious now that some players are much better placed to catch the eye of umpires or critics than others.  There was obviously a choice to be made on Saturday between Ashcroft and Neale, who both deserved an award, but as I saw the game, a Lions’ defender, Starcevic, did not put a foot wrong.  He not only beat a dangerous opponent, and stood like the Rock of Gibraltar, but he delivered the ball upfield with apparent nonchalant composure.  He was a great contributor to the winning of the flag, but he had zero chance of winning his own prize.  (The Lions’ full back may have had a reasonable game – according to the commentary, his opponent got his first kick late in the last quarter.)

We may therefore want to think of the extent to which the ‘best’ means ‘the most valuable.’

There is another flaw in our thinking of this process.  The ‘best’ is most often awarded to someone on the winning side.  There is no reason in logic why this should be so.  It is what is called a non sequitur – the conclusion does not follow from the premises  But it is so hard to escape.  The eighteen Age experts were about evenly split on who would win, and I think the biggest margin was estimated at 17 points – no-one predicted a ten-goal thrashing easing off at the end – but they were unanimous in saying that the best would have to come from the winning side.

That is I think irrational.  As a friend, who played in many premiership wins said, the result is ‘illogical and ridiculous….On that basis,  Bob Skilton couldn’t have won one Brownlow, let alone three’.

And it gets worse when the result is close.  Like last year – less than a goal the difference.  I am not a statistician, but a scoreline difference of less than one goal, say 95 to 100 – last year it was 90 to 86 – is hardly the basis for a finding that one side played better football than the other and deserved to win.  Rather, it is a question of who was standing where on the carousel when the music stopped.  Let us put to one side – as I am told I should – issues of statistical significance, if you rolled the same dice in seven days’ time, anything could happen.  (It is of course a fallacy to hold that if you have thrown five tails in a row, the odds shift in favour of heads for the next throw.  It is a fallacy – but we feel drawn to it by something like gravitational pull.)

But as often as not, we will be offered statistical analysis put forward with a straight face saying why one side played better than the other, and ran out deserving the win.  When the result could just as easily have gone the other way if one out of one hundred kicks had deviated by six inches.  But on we go with charts and graphs and arrows and replays – which establish one fundamental proposition.  And that is that if my aunt had wheels, she would be a bike.

In sport, as in war, there is such a thing as chance.  And we might all bear in mind the observation of His Grace, the Duke of Wellington, that the business of war, and indeed the business of life, is to guess what is on the other side of the hill.

And that is another problem with these analysts and star-gazers.  They are big on showing in black and white how a game unfolded as it did, but not why.  I have read column after column on how the Swans fell so low, but no-one has got close to showing why.  And at the end of it all, they had the look of blank horror and incomprehension of those coming back from the Somme.

Perhaps it is just an essential part of the drama of it all that in sport, as in life, things happen that we simply do not understand.  As Wittgenstein remarked, possibly of a more elevated issue, ‘Whereof you cannot speak,  you must be silent.’