In 1992, I had to conduct a public inquiry into whether an American gaming machine operator should be given a licence to operate in Victoria.  The issue was red hot politically, and forensically it was the trickiest I have had to deal with.  Both sides wanted the hearing closed – the applicant for fear of damage to reputation, and the police because they had a number of confidential sources.  Counsel said it would take months.  We narrowed the grounds alleged against the applicant down to two potentially fatal objections, and told the trolley – bearing lawyers that they could have four days. 

One ground was that the applicant could not be trusted because he associated with known criminals.  Another was that he had lied to a gaming authority in the U S on an issue that could not be dismissed as trivial. 

We decided against the applicant on that second ground, and I did not feel the need to express a view on the other.  For some reason that I still cannot articulate, I felt reticent about the issue of associating with undesirables.  It savored of the old days and the Consorting Squad. 

I would not feel that reticence now.

Senior Counsel for the Police opened his case by saying that the applicant was asking the people of Victoria to take him on trust.  That sounded spot on to me, and it was in substance conceded.  It is I think part of our law that any person holding significant public office – certainly any minister of government – holds an office of public trust.  The slippery forensic term is ‘fiduciary’.  The applicant for the licence was putting himself in that position under the terms of the relevant legislation.  A bent person in that position could cause real harm in the community.

A person holding such an office faces problems, to put it softly, if it is shown that he or she regularly associated with – the dictionary definition of ‘consort’ – with criminals.  Let us take the President of the United States. A number of people he associated with regularly have been convicted and imprisoned.  The President was merely convicted.

Having someone you dealt with closely found guilty of serious crime must cast doubt on your judgment.  We can all be let down by friends or family, but after just one or two, the defence of accident wears thin.

Among other things, it might raise questions about not just the conduct, but the sense and the integrity of the office holder.

If the relationship touches on criminality, or unfaithfulness, there is the risk of pressure or blackmail.  (President Kennedy was an obvious example because of his licentiousness.  Trump has a worse problem with Epstein; and, possibly, Putin.) 

So it is with accepting large donations – which brings the risk, or at least the suspicion, of corruption.  How many people in business donate money to an actual or potential member of government just out of the goodness of their hearts?  If they are dealing with corporate funds, at least in a public company, is it lawful to dispose of capital with no expectation of any corporate return?  (How sensible was it for Nigel Farage to say that a gift of millions of pounds was made for private purposes, when it was expressed to be made so that he could continue safely in public life?)

It is here that we understand why military law referred to conduct unbecoming an officer (or prejudicial to good order and military discipline).  Conduct unbecoming refers to standards expected of officers, or that may dishonour their position or character or compromise their standing among others.  These are big issues that you may not expect to see dealt with under the general law – but they are vital in bodies set up for general public welfare.  In other words, they are vital to the regulation of at least some bodies of public trust. 

The old notion of conduct prejudicial to the regiment still finds expression in our law.  Our Defence Force Discipline Act, 1982, s 60 makes it a criminal offence, punishable by imprisonment, for a member to commit any ‘act likely to bring discredit on the Defence Force.’  (The primary offence is ‘prejudicing discipline.’)  You may be surprised by that wording, and I have never heard of its being invoked, much less leading to a jail sentence. 

But it addresses the kind of problem that may arise in a business or political context.  A fractious MP engages in faction fighting by taking the brawl to court – so causing immense harm to the standing of the party: in other words, he or she has committed an act ‘likely to bring discredit on’ the party.  It is called hanging out your dirty linen.  A very well-known footballer publicly expresses contempt for gay people – and the major sponsor of the footballer has a gay CEO.  The owners of a halal butcher’s shop in Footscray put a One Nation poster on their front window.  A director of a well-known trustee company gets on Sky News at night to celebrate the billions the Trump family is making out of Bitcoin and says that profiting from holding a position of public trust is the logical conclusion – nay, the ultimate triumph – of capitalism.  Gordon Gecko was right.  Greed is good.

(If you wish to see what our law says about disqualification of directors, and you have a taste for the macabre, you might look at s 206F of the Corporations Act, 2001 and compare that with the English act. This is in legislation said to be longer than War and Peace.)

In short, rank carries responsibilities, and appearances count.  You may recall the very old saying that justice must not only be done – it must manifestly be seen to be done.  Fiduciaries should recall the story of Caesar’s wife.  People whose conduct or history cause the public to lose faith in a public body may well be unfit to be members of that body.

That is why I would approach the case of the American gaming regulator differently now. 

It is also why I think that Donald Trump is unfit for any kind of public office.

That brings me to another ground for that conclusion.  Consorting with bad people may cast doubt on the judgment of a person, and it may also adversely affect the reputation of the relevant organisation.  The case of the footballer’s offending gay people is commonly the subject of the law constituted by the contract under which he is be is engaged.  (As I recall it, the Code Napoléon recognizes that in forming a contract, the parties make a law for themselves.)  This issue is not the subject of any statutory law I know of.

The common law, unlike Roman Law, was not in favour of importing notions of good faith under the general law of contract.  But as between principal and agent, and employer and employee – relations that fall under the umbrella of ‘fiduciary’ – the law imposes obligations of good faith, and loyalty.  (You can trace the obligation of loyalty back to feudal times.) 

It is a gross breach of the obligation of loyalty for an officer or agent of a public organisation publicly to disparage that organisation.  If the Chairman of BHP or the Australian Opera said his organisation had been hopeless for many years before he was appointed, he would be removed from office at the first opportunity. 

Yet the President of the United States does just that so often when he refers to its role in the world.  He looks to care only for himself, and to see all the world solely through his own perverted prism, as he enforces his own vulgarity on the presence of the Union in the capital, while obliterating – a favourite term among the goons – every part of what we call the rule of law that underlies our claim to civilization.

Seldom he smiles, and smiles in such a sort
As if he mocked himself and scorned his spirit
That could be moved to smile at anything.
Such men as he be never at heart’s ease
Whiles they behold a greater than themselves,
And therefore are they very dangerous.