Passing Bull 351 – Another unpublished NYT letter

Dear Editor,

A member of the US Congress, Marjory Taylor Greene, compared Donald Trump to Jesus of Nazareth at Easter.

They have something in common.  Consorting with prostitutes.

But it is not fair to compare Trump to Adolf Hitler.  It is not fair to Hitler.  Hitler fought for his country and paid its taxes.  Trump did neither.

Is there no end to the madness of the United States?

Yours truly

Nonsense about values in parties in opposition

The prospect of imminent death is not concentrating the minds of what is left of the Liberal Party.  People keep talking about the real or traditional ‘values’ of the Liberal Party.  (And then you know it is just a matter of time before you hear the word ‘Menzies’.) 

According to the Compact OED now in front of me, ‘values’ are ‘beliefs about what is right and wrong and what is important’. 

That’s quite a lot.  Especially for the beliefs of a political party.  For an Australian political party, we imagine that the values would in some way have to be labelled ‘Australian’. 

You only have to say that to see how silly it is.  (In the moonshine about the carnage at Gallipoli, some Australians speak of ‘mateship’ – as if the Turks had no mates.)

In beliefs about what is ‘right’ or ‘important’ in our political life, there will be ranges of views.  Two are connected.  Do we want to have more or less government interference in our lives?  Do we trust government, and are we optimistic about its role in our lives? 

One side may be labelled as ‘progressive’ or ‘liberal’.  The other may be labelled as ‘conservative’.  (Terms like ‘left’, ‘right’ or ‘socialist’ are quite useless.) 

In England, the two different approaches were represented in two parties – the Liberal Party and the Conservative Party.

In Australia, the Liberal Party tries to do both.  That is a problem.  What used to be called ‘a broad church’ is now a sprawling, ugly dog’s breakfast that cannot be said to stand for anything.

What ‘value’ does the Liberal Party stand for that the Labor Party does not?  Except a propensity to say ‘NO’ and keep Mum about the alternative?

The one difference between the parties is that at least the Labor Party has a coherent history – which gives it some kind of defined historical purpose.  Its trouble is that that history has links with blue collars.  That history triggers anxiety in the male white-collar descendants of convicts, screws and squatters, especially those raised in English style boys’ own public schools, and contemplating oblivion from the walled security of a city garden, sans dames and chaps who somehow don’t quite fit in. 

Which is pretty much the rest of Australia.

That is the stick of the Liberal Party. What is the carrot? 

Bribes.  That false prophet who preached the end of the Age of Entitlement was speedily banished.  For both anathema and heresy. 

We are the most insecure, government-dependant nation in the history of this planet.  A prime minister whom a friend dubbed ‘the little Sydney conveyancer’ detected what Bertrand Russell saw in us – an irresolvable penchant for mediocrity, which in his own case is defined by a wooden suburban picket fence in the brightest Dulux White. 

That government handed out what the Romans called ‘donatives’.  They are like the reverse of the French don gratuit.  The state must look after the ‘base’ – those who are financially comfortably well off enough to enjoy government sponsored perks on ‘leveraging’ their mortgage or their superannuation tax breaks. 

When sensible and decent people pointed out that these vote-buying bribes had no rational justification, a scream of anguished pain went up louder than that of ‘BALL’ from the Magpie army on a bleak day a long time ago at Windy Hill.

And so, the carrot became the stick again, and another election was lost, and we the people fell into the hands of the kind of oddball who really does believe in miracles in his own life and times. 

And our children were sentenced to longer terms of ultimate homelessness in the complete repudiation of what some idle grifters used to call ‘the Australian dream.’

What is left of the Liberal Party looks to be hostage to two very unattractive groups of people.  The Murdoch press, whose business model – its drive for profit – is predicated on conflict and deceit, and religious fanatics, whose blind faith leads them to the same drivers.  The result is inevitable – people who are fit to represent no one.

What is the role of the Liberal Party in opposition?  That role was defined by a most sagacious English historian of the French Revolution as follows.

…an Englishman …. has been trained to exercise his party spirit in the game called the Party System; and among the rules of that game – not always observed [1929] as they should be – are the obligation to sink personal differences in party loyalties, not to criticise your opponent’s policy unless you have a better one that you are prepared to carry out yourself, and in case of national crisis, to help rather than hinder whatever government may be in power.

Well, we did not need the wisdom of Dr J M Thompson to tell us that the Liberal Party, both state and federal, is not within a bull’s roar of doing its job.  Its members routinely violate each of those principles every day.

A two-party democracy must have two workable parties.  We don’t have that.  The Victorian government has already shown signs of a consequent presidential-style arrogance, and the fear is that the federal government may go the same way.

And it is no consolation – none whatsoever – that no-one – no-one – could make as big a mess of it as the United States of America.

The threat to our system of government is real.  You need only look to the UK and US for the last six years where ratbags unfit for any office have been elected because they had no adequate opposition.  We now have a federal Opposition Leader who is competing with the CEO of Qantas for the position of the most loathed person in Australia.

Et moi?  When I go to join the Wolf in his Valhalla in the Wombat Forest, will I do so as a faithful liege subject of His Majesty King Charles II?

Now that tells you something about Australian values.

Enjoy the coming days – sacred or profane.

Liberal Party – Dutton – role of Opposition parties – Trump – Johnson.


This opera reminds me of Antony and Cleopatra.  The plot is simple, and in this case silly, but the show just keeps going.  On and on.  I took an ageing American from Oxford to see it at Stratford in a full house on a hot night.  Neither of us handled it well.  In Turandot there are phases of Wagnerian repetition, and the term Principessa gets seared in your memory to the point where you are ready to surrender.  And to do that part, some Wagnerian strength helps, but it usually does little for the love interest.

For those of us who are not of the cognoscenti, there are structural problems in Puccini’s big ones.  Madam Butterfly carries the same sense of ordained misery as Othello.  In Tosca, nothing could match the drama of Act II, and the last act is frankly silly.  And in La Bohème, I am ready to pack my bags at the first interval, because the best is done, and it’s all downhill from then on.

Turandot is above all a big show.  Italy in China, and three of the best-known hits of opera.  The big number of the principal (In questa reggia) is where Wagnerian strength is required – Clare-Louise at Oxford had a theory that this broke the voice of Callas.  (But that was just one point of difference between us.)  Liu has the sweeter song – it was a specialty of Tebaldi – that leads to Non piangere, Liu, which always features on highlights discs of Björling et al.  And everyone knows the challenge awaiting the tenor toward the end – especially since the extravaganza of the Three Tenors.

It is one of the few operas now that I prefer to see on the stage – because it has to be a big show.  I saw the AO do it perfectly in both Sydney and Melbourne about thirty years ago.  It was choreographed by Graeme Murphy, and that is how it should be like South Pacific with the volume right up, and all the bells and whistles.

And that’s what you get with the new release by Pappano with what its promoters and the press are pleased to call an ‘all-star cast’.  The two leading ladies are up for it, and the tenor is Jonas Kaufman, who is widely seen and heard as the best about currently on the scene.  What you get is a feast of sound and light that tested the Marantz – and the neighbours.  Toscanini, and those who followed him, would have been appalled, I think.

I saw and heard Kaufman do a so-so opera in concert at Melbourne a few years ago.  Kaufman turned up to play, as they say in footy, and I was not the only person in the audience to gasp on occasions.  Here his voice sounds fuller and more baritonal – and loud.  At times he reminded me of the good old days with Del Monaco and Corelli.  But as sportsmen say, he leaves nothing on the field.  Kaufman took one high C four times in the studio.  This is the Full Monty.

So, if you want a recording with the lot, this is one to get.  But, according to Gramaphone, which devoted a cover story to the production, the recording process took a number of days of six or seven hours’ singing, with Covid spacing, and a tight schedule.  Sondra Radvanovsky, who sounds like a team player, said she had to live like a nun, and she did not even get see the Trevi Fountain.

And you wonder when sound management and engineering, and cutting and splicing, and veneering, collapses into the lurking dragon of A1.  If Chatbot, or whatever it is, can whip up a sonnet in the style of Shakespeare in seconds, how long will it be before we get Di Stefano doing Amor te vieta

My Marantz has a soft spot for those old monos of the ‘50’s, where you can hear feet on the boards, and just the occasional cough in the audience.  Of late, I have been thrashing Furtwangler on Beethoven in the fifties, and for me nothing else comes close, even if some old guard classicists might get miffed.

Opera – Pappano – Kaufman – AO.

Passing Bull 350 – Protecting footballers

The start of the AFL season coincided with the commencement of new civil claims brought by former players seeking compensation for injuries suffered while they were playing – and three high profile suspensions for dangerous play. 

The word ‘bump’ is silly in this context.  At least one suspension came from a shoulder charge when a player launched himself into a human missile with both feet off the ground.  Anyone who doubts how serious the issue is has not read the appalling stories of illness and distress of former players often leading to suicide.

In all the talk, I have not heard it suggested that the AFL think of adopting the rules of rugby on tackling.  According to the version in front of me, those rules include the following:

10.4 (g) Dangerous charging.  A player must not charge or knock down an opponent carrying the ball without trying to grasp that player.

The referee could call ‘low arms’ or ‘no arms’.  (This was not the case in NRL, until recently, I think.)  Additionally, there are general prohibitions on tackling someone without the ball, in the air, or late, or dangerously. 

Any of these is red card territory – off for the match, with no replacement.  Mid-air collisions are viewed very strictly.  ‘Foul play’ includes ‘unfair play’ or anything ‘against the spirit and letter of the Laws of the Game.’  (Lawyers will see a comparison with Equity.)

In other words, rugby is a game of playing football for ordinary decent people.  Requiring a tackler to make the ball central to the tackle is obviously central to that proposition.

The AFL then has a dilemma.  If it goes that way, will it follow rugby when they ban tackling above the waste?  But if they don’t tighten up on safety, they are even more exposed legally for not adopting safeguards used elsewhere.  And in a code that is played around the world and followed by many more millions than is the case with the AFL.

The AFL can’t pussyfoot any longer.  Just ask the man who took the Mark of the Century whether he would not give back every cent of $1,400,000 if he could get his life back, or what was going through the mind of Danny ‘Spud’ Frawley when he drove his car into a tree.

Communal life in the trenches

Of late, the Australian middle class – and not many opt for inclusion in the other two classes – has become more adapted to communal living in what we used to call ‘flats’ than used to be the case.  Intense urban development has led to large blocks of units that have ‘common property’ and human interactions that have to be managed. 

The law was changed to allow for ‘strata titles’ to individual units, and the incorporation of a body to manage, if that’s the term, the whole shebang.  That is the ‘body corporate,’ now styled ‘owners corporation’ (without the apostrophe), and there is usually a managing agent appointed to do the managing.  It normally reports to a committee of apartment owners.

What could be simpler?

Yet when you mention the term ‘body corporate’ or ‘managing agent’ to a lawyer or someone in real estate, you get a roll of the eyes, an intake of breath, and a sigh.  It is not hard to see why.

There you have the indicia of lawyers’ nightmares.  People living together and needing tolerance, restraint, and co-operation – all in short supply in our public life.  The old law feels out of place; the new law is worse, and written by people who have never set foot in a court or been humiliated there; the bureaucracy, if you find one, does not know or want to know.  The room for bush lawyers – at either end – is scary, and any talk of a common fund looks like a honey pot to people of low calibre – and it is forever remarkable the way that they find each other out at the same level.  Law dissolves into lore, and as Yeats remarked, the best lack all conviction and the worst are full of passionate intensity.

And that’s before you get to ethnic and class differences in the owners, and the cleavage in ages – between those who are unsafe unless they are looking at themselves in their cell-phone, and the aged, like me, who regard the makers of Facebook and Twitter as on a par with Hitler and Stalin, and hopefully destined to meet the same fate.

And it’s before you get to the role of the manager, who is there to make money, and the role of the committee, who are not there for the money, and who don’t want or need to get sucked into the hands-on management any more than is entirely necessary. 

There is room there for buck-passing and blame-dodging of the order of our national past-time that we have all just watched so horrifyingly in the Robodebt Royal Commission.

The managers have to be licenced by a government office.  They are represented by the Strata Community Association.  Its website says:

Strata Community Association (SCA) is the peak body for Industry Managers, Lot Owners, Tenants and Stakeholders living in or affected by Strata Title, Body Corporate, Community Title and Owners Corporations.

SCA proudly fulfils the dual roles of a professional institute and consumer advocate.  SCA has in excess of 3,300 members who help oversee, advise or manage a combined property portfolio with an estimated replacement value of over $1.2 trillion.

So, this body, SCA, says that it is the peak body not only for managers, but for owners and tenants.  And it is proud to be both a ‘professional institute’ – only God knows what that might mean – and a ‘consumer advocate.’ 

Insofar as they see themselves as my advocate, and holding the same office for other owners, do they not see a conflict of interest as wide and deep as the Grand Canyon?  It would be like the AMA saying it represents both doctors and patients.  Or Centrelink saying it represents both the Government and the sore afflicted.  Or Scott Morrison and Stuart Robert saying that in the Robodebt scheme they showed equal fealty to God and Mammon on those mornings when they prayed together at Parliament House.

(I shall return later to the phrase ‘professional institute.’)

The SCA says one in four Victorians are ‘living in or affected by’ Owners’ Corporations.  That means the managing agents that belong to the SCA play a large part in Victorians’ lives.  They are people of power – or, as they are wont to say now, ‘influence.’  They are probably in a position to have more influence on how people live in and around their homes than the local government.  This is important when we come to look at how responsible to owners and tenants they are under the terms of their appointment as managers.

Nor is the SCA to be found wanting in pride.  It says its members ‘empower’ lot owners and ensure compliance with laws.  ‘The Code of Professional Conduct raises the bar to maintain ethical standards and members are held accountable through a robust complaints process.  Members benefit from the Standard Contract of Appointment.’

You bet they bloody do – and it’s tough banana for the rest of us.

Commercial lawyers looking at this contract for the first time might think they have landed on Mars – or Beijing, Moscow, or downtown Tbilisi.  They would see the contract as designed to achieve two objects – to allow the manager to charge like a wounded bull, and to leave the manager accountable for nothing.  It is one of the most blatantly loaded contracts I have seen in a life in the law.

We can deal quickly with the fees.  There is a flat fee and extras for specific items, some of which are to be charged on a time basis.  It is the kind of robotic scale that can lead to accounting of such a creative nature that it could only subsist between parties in a relationship of absolute trust.  That does not often happen in dealings in real estate between owners and agents.  The prospects of a corporate manager agreeing to pay its staff on a similar basis is one of the following – nil, nought, zero, and zilch.

What then are the obligations of the manager?  In what sense is the manager accountable to owners and tenants?  What remedies do the owners have if the manager breaks the contract – or even just refuses to perform its part?

And you need to remember that the contract is only with the body corporate.  Lot owners or occupiers cannot go to law to enforce the management contract.

Clause 7 is in U S style verbiage.

7.1 To the extent permitted by law the Owners Corporation hereby releases and indemnifies the Manager and holds the Manager harmless from and against all actions, omissions, claims, demands, losses, costs, damages and expenses (including without limitation reasonable legal costs on a solicitor and own client basis) (“the loss”) in relation to or arising directly or indirectly out of the performance or non performance by the Manager of any services or the exercise of its functions and powers pursuant to this Appointment or otherwise from any cause of action including negligence and including without limitation:- 7.1.1. defects or dangers arising in or out of the Owners Corporation Property; 7.1.2. arising from the failure of the Owners Corporation to supply adequate information and advice or direction when requesting work to be performed by the Manager; 7.1.3. arising from goods or services provided by or to third parties at the request of the Manager provided that such request was made in accordance with the provisions of this Appointment; 7.1.4. arising from the handling or storage of goods, products or chemicals; 7.1.5. resulting in death, bodily injury, damage to property or economic loss suffered by any person or persons whatsoever including members and occupiers of the property or part thereof; except to the extent that such loss is caused by or contributed to by the Manager’s dishonesty or fraud. 7.2 If the Manager breaches its obligations in relation to the services and the Owners Corporation has contributed to the Manager’s breach, the Owners Corporation agrees to indemnify the Manager.

Before looking at that, what are the kinds of remedies that the law can usually offer to a party when the other party breaks their promise?

There are four channels.  The contract may allow a degree of self-help, by allowing, say, a lender to sell mortgaged property or appoint a receiver over a company.  If the breach is such that the party in breach shows they will not go on with the contract, the other party can terminate the agreement.  In some cases – that would almost never apply here – the innocent party could ask the court to order the party in breach to perform the contract.  Or the innocent party can pursue the contract breaker in a claim for damages. 

The last is by far the most common avenue that is pursued.  You can put to one side court orders or contractual stipulations for self-help in the present context.

What clause 7 is intended to do, ‘to the extent permitted by law’ (that is, I think, unless the court otherwise orders), is to take away from the owners the last remedy – and so, effectively leave it with just the right to sack the manager.  And no right to claim monetary compensation – no matter how gross the breach.

The manager is saying ‘You promise not to sue me for breach of contract or negligence – you must show dishonesty or fraud in order to get compensation from me’. 

The manager hardly needed that carve-out or proviso.  If you suffer loss because of the fraud or dishonesty of someone, your lawyer will advise you to sue the bastards – if they are worth suing.  You didn’t need a contract to tell you that you are free to do so.

Before we look at the extent to which the law might permit such a promise to stand, let us stand back a little, and consider the setting.

Anti-trust law is not my strong suit, but consider this.  

A group of participants in a market have the power to dominate it to the point of holding a monopoly.  The market is controlled and rendered exclusive by government licensing.  The service providers combine to form standard terms of agreement between suppliers of their services and those wishing to purchase them.  The object and effect of one term is twofold.  It reduces competition between suppliers.  And it imposes hardship on purchasers by depriving them of basic common law rights in a manner that would not have been accepted by parties negotiating at arms’ length in a free market.

What do our competition laws have to say about this?

Well, then, what does the relevant statute (Owners Corporations Act, 2006)have to say that bears on this issue?

For obvious reasons, the act says that a manager must hold PI insurance – s 119(5) and s 185A.  If clause 7 means that a manager can only be sued for fraud or dishonesty, that object of the act will be entirely frustrated – no PI policy extends to fraud or dishonesty.  (I doubt whether an attempt to do that would be lawful.)  Most managers will be shells.  Their capital will be $2 – not enough to buy one cigarette.  The act was meant to ensure that managers could be held to account in money terms in claims for compensation for breach of the management agreement.  The result is that the other party has no effective remedy for breach of contract by the manager – at least not one that gives them financial compensation.

The act (s 122 (1) (b)) says a manager ‘must exercise due care and diligence in the performance of’ its functions.  What then is the remedy for breach of this statutory duty if clause 7 is left intact and enforced according to its terms?  Can parties effectively contract out of it?

Then up pops something else in the act – which is as jumbled in its terms as the contract.  The act (ss 162 and 165) says VCAT can determine a dispute about whether a term of the contract of appointment of the agent is fair – and says VCAT can vary any term of the contract – or declare it to be void.  

The first provision – s 162 (d) – would, in the language of Kant, appear to presuppose that terms of the contract should be fair.  But so far as I have seen, the phrase just falls out, pat.  (My computer is not telling me that the term appears before in this act, and I see no link to the Australian Consumer Law).

And given that the act (s 122 (1) (a)) says that the agent must act honestly and in good faith, the court or tribunal might be left to ponder the distinction between dishonesty, bad faith, unfairness, and – as we are about to see – unconscionable conduct. 

And the structure of s 162 (d) may give rise to an issue of onus – is it up to the manager to show that the term is fair, or the body corporate to show that it is unfair

All of which should be about as fruitful as Medieval Schoolmen asking how many angels can dance on the point of a needle.

Well, then, to what extent will the law permit the manager to rely on clause 7 to defeat a claim by the owners’ corporation for damages for breach of contract?  (I may here say that if a court found that the manager owed a duty of care to the lot owners, clause 7 would not protect it.  You cannot contract out of a liability owed to a party with whom you have no contract.)

In my view, it is more likely than not that the court, or VCAT, would hold that this exemption clause should not be enforceable at all.  The court could so rule on the basis that the clause is unconscionable within the terms of the consumer laws, if not the general law, aided in the case of VCAT by its power to find that a clause is unfair.  

I put to one side the chance that a court might hold that the clause is unenforceable at common law because its object and effect is to negate an essential part of the law governing the conduct of managers.  I also put to one side the argument that if this clause is given literal effect, the consideration moving from the manager is illusory, so that there is no contract at all (on which point lawyers might look at MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125).  The contract may after all be described as the contract you have when you don’t want a contract.

I say that I think it more likely than not that a court would strike down this clause under the consumer laws – because what use are they if this clause can be enforced?

In a contract for the supply of services, is it fair for the supplier to put forward a contract in standard form, provided by its trade representative, that has the effect:

This form of contract provides a term, and we hope that the law allows this term, that you will not be able to sue us for damages if we breach the contract.  It is up to you to inquire what prospects we might have of achieving that result if you agree to this term in the contract.

But, as usual in the law, there is no certainty in that opinion – it is a prediction that is yet to be fulfilled.  In the meantime, the game will go on with the ball up in the air.  And someone may have to part with a fortune to bell the cat.

This is dreadful for bodies corporate and lot owners – which is to say, about one quarter, according to SCA, of people in Victoria.  Who is to say that their home is not built on juristic sand?

I referred earlier to the phrase ‘professional institute’.  Whatever else you might say about clause 7, it is not one that would be put forward by someone practising a profession.  Intrinsic to the notion of a profession is a sense of vocation or calling; a body of learning; and a collegiate commitment to a professional ethic which ultimately puts the public interest above the profit motive.

As it happens, the Victorian AAT, the predecessor of VCAT, had something to say about this in 1985.  It ruled that nursing was a ‘profession’.  It referred to the Shorter English Dictionary.  It said that a nurse is relevantly ‘a person, usually a woman, who attends or waits upon the sick; now especially one trained for this purpose’ and that a profession is relevantly ‘a vocation in which a professed knowledge of some department of learning is used in its application to the affairs of others, or in the practice of an art founded upon it; applied especially to the three learned profession of divinity, law and medicine…’(War Nurses Memorial Centre v Comptroller of Stamps (1985) I VAR 120, 127.)  A glance at the Macquarie Dictionary shows that meaning still obtains.

Some might say that this is just a case of a lawyer being snooty – as they are wont to be.  And it is easy to leer and jeer about the fees charged by silks and surgeons.  But even the most fervent members of the SCA would not seek to compare their calling to that of our nurses, and the Australian impulse to drag down doctors and lawyers tends to evaporate when people have their life, health, liberty, wealth, or reputation on the line.

And at the risk of circularity, no professional would seek to put in their retainer an exclusion clause like clause 7 of the SCA standard form of retainer.

This form of contract proffered by managers of strata title blocks looks to me to be an insult to the people to whom it is put – a substantial part of the population of Victoria.  And it’s about time they were called out. 

But I fear that the consumers – the body corporates and owners and tenants – will not get anywhere until they form an association which can stand up to SCA and its members, and at least give a semblance of a level playing field and equality of bargaining power.

And this is all terrible for committees.  If the manager can’t be relied on, residents will turn to the committees, and the national penchant for buck passing and denial of responsibility, will go unchecked.  The committees will be like MPs called on to fix a mess left by the public servants – agitated and unhappy – for cause.

In the meantime, the issue is of sufficient public importance to warrant the close attention of governments, both state and federal.

Finally, the version of the contract before me says that it is ‘recommended’ by SCA and ‘approved’ by CAV.  The last is very interesting and we await the versions of events from SCA and CAV.  They are not likely to be in line.

Strata titles – owners corporations – managing agent – body corporate – exemption clauses.

Reward and confidence

Assume that a bank teller at JP Morgon gets paid $50,000 a year.  Mr J P Dimon gets paid $30,000,000.  That is – 600 times the pay of the teller. 

This, we are told, is the free market at work.  But the free market stops the moment Mr Dimon or his like find their wealth imperilled.  Governments – you and I – must act, and the free-market ideology goes clean out the window.

In the meantime, what are we looking at apart from madness, greed and what looks like extortion?

Assume that Mr Dimon works five days a week for 48 weeks, a total of 240 days – that is a daily rate of $125,000.

For which Mr Dimon does not subscribe one cent of capital or assume one dollar of risk.

And I assume it would be grotesquely impolite to inquire if he pays much tax.

Well, the wealth of the world consists of promises.  I work for you and you pay me.  I buy your car and I pay you.  I put money in the bank and take it out – possibly with interest.  The bank lends me money and I certainly pay interest to it.  If it fails, I expect my government to see that I suffer no loss as a depositor – I may have to take my chances as a shareholder.  (The Swiss just reversed that priority with Credit Suisse – some say they did not want to upset a big Saudi shareholder.)

All of those relationships turn on trust or confidence – or what some might call ‘credit.’  The system would seize up instantly if people had to resort to law to enforce the relevant promises.

It follows that for the system to work, people must have confidence in – they must give credit to – banks and financial and government institutions.

You may have confidence in a banking system that sees the boss get paid 600 times what a teller gets, but I do not.  He earns more in a day than the teller does in two years.  Absurd or insane are among the more polite epithets.

And people who complain about surgeons’ fees might look at the comparison.  Mr Dimon is not a member of a profession.  Intrinsic to the notion of a profession is a sense of vocation or calling; a body of learning; and a collegiate commitment to a professional ethic which ultimately puts the public interest above the profit motive.

The embrace of public decency in big corporates has gone some way in the last generation, and some of it is real – but it will never bridge that gap. 

Indeed, the bastion of capitalism is the home of the ideologues who say that trading corporations are there to make money – and that’s that.  It is then heretical to talk about the public interest.  Just as it would be inane to inquire after the tertiary achievements or community contributions of the boss.  Mr Dimon is there to make money, and that’s all you need to know.

But some truths remain.  What separates us from the lions and tigers is a shared underlay of sense, fairness and tolerance – including a sense of proportion, or restraint.  We need all those qualities to have confidence in the way we do business and govern ourselves. 

Well, one royal commission punched a mighty hole in our confidence in business.  Now another is punching a bigger hole in our confidence in government. 

What each has done is to justify our loss of confidence, and show, in unsettling detail, that too many people are getting paid far too much for doing far too little, and that even more people simply don’t know what they are doing – including company chairs and government ministers.

What we all saw in each was tears in the fabric as outrageous as the paycheque of Mr Dimon.

And you don’t have to have followed the Melbourne Football Club for half a century to know that once you lose confidence in something close, it takes a bloody long time to get it back.

Capitalism – free market – equality – J Dimon – J P Morgon – incomes of bankers.


History, as the word suggests, is a story – about us.  We want to know what we are about, and to find out we look at what we have done.  To some we look like Hottentots dancing around the rim of a volcano.  Sometimes we go off course and fall in – and all Hell breaks loose.

Just that happened a lot during the events we label the French Revolution.  Vast libraries have been written to describe it.  It is one thing to put together a narrative or analysis.  It is altogether different to have the art that conveys an image and an effect beyond words.  Not many have that gift.  Tacitus, Gibbon, Ranke and Macaulay had it. 

So did Carlyle, and he applied it in The French Revolution in a manner that defies imitation or repetition.  A tutor at Cambridge said I should treat it like a poem.  I like the analogy of opera – where the plots are often over the top.  Phrases and images of Carlyle stay with me like parts of Mozart or Verdi.

It is not silly for me to say that I got that kind of electric charge from readingAftermath: Life in the Fallout of the Third Reich by Harald Jahner.  The author paints a picture of events in Germany in the immediate aftermath of the most evil and destructive war in the history of mankind.  It is a colossal achievement which commanded my intellectual and moral assent from start to end.

Before looking at some of the insights, I will set out how Carlyle saw the horrors of the French around 1793 prefigure the horrors of the Germans around 1943.

One other thing, or rather two other things, we will still mention, and no more:  the blond perukes; the Tannery at Meudon.  Great talkers of these Perruques Blondes: O reader, they are made from the Heads of Guillotined Women; the locks of a Duchess, in this way, may come to cover the scalp of a cordwainer, her blonde German Frankism his black Gaelic poll, if it be bald.  Or they may be work affectionately, as relics, rendering one suspect?  Citizens use them, not without mockery; of a rather cannibal sort.…. Still deeper into one’s heart goes that Tannery at Meudon; ‘There was a tannery of Human Skins; such of the Guillotine as seem worthy flaying: of which perfectly good wash-leather was made; for bleaches and other uses.  The skin of the men, he remarks, was superior in toughness (consistance) and quality of shamoy; that of the women was good for almost nothing, being so soft in texture ….’ Alas, then, is man’s civilisation only a wrappage, through which the savage nature in him can still burst, infernal as ever?  Nature still makes him: and has an Infernal in her as well as a Celestial.’

The first task was to clear the rubble.  That is beyond description.  When I was last in Berlin, about six years ago, there were still I think weedy spaces on Friedrichstrasse.

The suffering of European Jewry may have started at Calais, but it got worse as you moved east from the Rhine.  Many Jews in Poland chose to go to Germany – they regarded Bavaria as American.  In turn, Orthodox Jews from the East distrusted ‘worldly’ Jews.  They accused them of betraying Judaism by wanting to stay in the land of their murderers.

Infighting was general.  German regions rediscovered their tribal background.  ‘Volk’ was bad – as was ‘ein volk.’

Taxes were levied to spread losses.  Some had to pay half of what they owned so that those who had nothing could survive.  This on top of the enforced association of unloved ethnic groups made a new nationalism out of the question.  And imagine any western government trying on that kind of tax now.

The Marching Song of 1945 was sung in mordant cabaret staccato by Ursula Herking.  They marched on –

Because our heads, because our heads

Are still solidly on our necks.

There was a frenzied uptake in dancing.  People just lived for the moment.  People were ‘unimaginably sociable.’  The rhythm was pure jazz.  The Nazis had forbidden so much.  There was an excess of freedom, and people coming out of jails feel lost.

Cologne – what was left of it – put on its first Carnival in 1946 under the motto – ‘We’re back and we are doing what we can.’  Only 40,000 residents were left out of 770,000.  There was a feeling of joyous relief of not having as yet been stripped of ‘the sweet habit of existence.’  It was like surviving lethal cancer.

Those men who came back were not recognisable and so often beyond repair.  Men lingered outside too scared to go in.  Finally, one little boy said ‘Look Mum – it’s Dad.’

The freedom of the Americans dazzled the locals – how was it possible to win a war without constantly clicking your heels?

Venereal disease was everywhere.  ‘Veronika Dankeschon.’  Against all odds, and military orders, 170,000 intermarried by 1988.  People write songs about that sort of stuff.

The black market made the currency useless.  Then in 1948, it was stabilised, and the economic miracle began.  People rediscovered the old truth – ‘half of economics is psychology.’ 

Then came the Berlin airlift and Berlin, the most reviled city on earth – which many sane decent people had wanted to annihilate in 1945 – became ‘the frontline city of the free world.’  The USSR brought misery to the East, but was there at the start of the triumph of the West.

The American re-education program was a great success.  The exploits of the American Hans Hase – in his tailor-made uniform – are worth a book in themselves –during and after his time in Germany.  The Soviets said that fascism was terrorism of the working class!  The Hungarian born Hase said ‘I was unusually attractive, and I didn’t lack qualities of the heart.’  He married six times – including three of the wealthiest women in the world.  How could mere communism cope with that?  The Combine, as Ken Kesey may have said, got him.  ‘You have gone native.’

There is a chapter on repression.  The Germans could not come to grips with mass murder – and their part in it.  Who can? They saw themselves as victims.  This would lead to a grizzly generational backlash which peaked in the unease of 1968.  ‘Let’s catch up on what was missed in 1945.’ 

Back then, the Germans loved Chaplin, but they were not ready for The Great Dictator.’  On the repression, the author says: ‘The collective agreement of most Germans to count themselves among Hitler’s victims amounts to an intolerable insolence…. The conviction that one had been Hitler’s victim was the precondition for being able to shed all loyalty to the fallen regime without feeling dishonourable, cowardly or opportunistic.’

The damage to the psyche would take more than one generation to heal.  When the most evil regime in the history of mankind was in its death throes, Goebbels – who with Hitler and Himmler cheated the hangman – decreed a general annihilation after the manner of the favourite Wagner opera of his Führer –

Hatred is our commandment and revenge our battle cry.  The Werewolf is judge and jury and decides over life and death.

That kind of evil is beyond words.  We are left, like Joseph Conrad in The Heart of Darkness, simply with the ‘horror.’

There is then left the comparison with the experience of Japan, and more importantly, the comparison with the Great War.  Then, the Allies did not heed warnings from within and did not finish the job of destruction, but treated the defeated with an arrogant cruelty.  Keynes and Hitler then set out word for word how those mistakes would lead to the next war.

Because of the cruelty of Hirohito and Hitler, their nations finally surrendered unconditionally when there was nothing left.  They had betrayed and destroyed their own nations.  This time, the Allies knew about the need for reconstruction.  It would tart to say the two nations have been model citizens since.  But they have.  And, it has taken someone assessed to be as evil as Hitler, but with the bomb in his hands, to get Germany fully to rearm – with the blessings of their allies.

If you go to YouTube, you can get Ursula Herking singing the marching song from 1945, the year I was born.  Like Edith Piaf, she has a gravitational pull that is universal – again like Lili Marlene. 

But for some reason, when I listen to it, I think of a moment at the darkest part of the war.  Many did not trust Churchill, and some were ready to deal with Hitler.  Churchill opened a meeting of the War Cabinet to the full Cabinet.  Here was a gathering of the political elders of the nation that had given the world the model of parliamentary democracy.  They were desperate for a leader, and after Churchill spoke, he was surprised by the warmth and eagerness that they grabbed him with.  In the course of resolving the issue, Churchill said:

‘We shall go on and we shall fight it out, here or elsewhere, and if this long island story of ours is to end at last, let it end only when each one of us lies choking in his own blood upon the ground.’

Churchill would of course echo those remarks in his most famous speech to parliament.  God only knows what may have happened if England had not had Churchill.  As far as I know, we might be having this discussion in German, and my Jewish friends might not be here.

That’s why we need history, and why this book means so much.

Carlyle may or may not have been mad himself – who is not at times? – but he may have the last word.

What, then, is this Thing called La Révolution, which, like an Angel of Death, hangs over France, noyading [drowning], fusillading, fighting, gun-boring, tanning human skins? …It is the Madness that dwells in the hearts of men.  In this man, it is, and in that man; as a rage, or as a terror, it is in all men.  Invisible, impalpable; and yet no black Azrael, with wings spread over half a continent, with sword sweeping from sea to sea, could be truer reality. 

History – Germany after 1945 – evil – the French Revolution – building a nation – war and peace.

Passing Bull 349 – Bullshit at Hillsong

There were plenty of dud ministers in the Robodebt scandal.  Two of the worst were Stuart Robert and Scott Morrison.  Each is as thick as two planks, and they both say they prayed together.  In parliament.  To the God of Hillsong.

Last week Andrew Wilkie, MP dumped on Hillsong.  Their own documents.  The press says he did it under parliamentary privilege.  Well, Hillsong has not said anything he said was untrue.

But Hillsong has announced an independent inquiry and 153 ‘voluntary staff redundancies’ in the last year, saving $9.47M.  It has also changed its policy on ‘gifts’.

The Global Senior Pastor, Phil Dooley, said ‘we want the vast majority of our staff to be front facing, focused on people and the needed and necessary work of face-to-face ministry.’

Dooley said he was disappointed that Wilkie used parliamentary privilege and that Wilkie had been un-Australian in not speaking to them first.

Here is Hillsong on Fabulous Phil.

A visionary leader and life-long learner, Phil believes that every person has a unique, God-given purpose and can positively impact their spheres of influence in a great and enduring way.  Together with his wife Lucinda, he is Interim Global Senior Pastor for Hillsong Church, as well as Lead Pastor for Hillsong Church Africa.  Phil is passionate about wholeness, wellbeing, growth and development in all areas of church life, as well as in his own life.  Having started off as a youth pastor, he remains committed to raising up new leaders and seeing the next generation thrive, and step into all God has called them to.  Phil is an engaging and empathetic communicator, skilled at applying biblical wisdom in practical ways to the highs, lows and challenges of everyday life.  He loves to connect with people and to celebrate others and witness their lives transformed and made fruitful by the grace and love of Jesus.  His desire is to keep growing throughout all the years of his life and to invest in others doing the same.  He and Lucinda have three children, Abbey, Bella and Zac, and two dogs, Spencer and Stanley.  Phil enjoys the discipline and routine of a morning workout followed by a swim in the ocean and reading his One-year Bible at his favourite local café. He loves to draw people in and create community wherever he finds himself.

He looks like he could do with a decent haircut and a wash.  Check him out.  Modelled on Harpo Marx.  More volume, but not as bright.

Hang down your head Phil Dooley,

Hang down your head and cry.

But the Fabulous One is forgiving.

It kind of feels like being king-hit from behind.  But Jesus loves you Mr Wilkie…. Mr Wilkie, you’re still welcome to attend any of our services.

OK.  Playtime is over. 

Bullshit is par for the course.  But to invoke Jesus of Nazareth in a petty political catfight is not just offensive – it is downright despicable.

And anyone who swallows any of this tripe should not be permitted within a fifty-mile radius of Parliament House, Canberra.

Morrison – Robert – Dooley.

A state of mind

The capacity of a people to govern itself fairly, and for its people to look after themselves and have their rights protected against their own government, depends in part on their laws.  But more importantly, it depends on the history of that people, and their state of mind in formulating, implementing, and cherishing those laws.

Events in this century lead to misgivings about the fluid, or perhaps insensible, basis of our constitutional settlement and our embrace of the rule of law. 

Does it all really come down to a state of mind?

We in Australia inherited the relevant history, legal structure, and state of mind from the English.  By and large, we are content with it.

Nations like Russia, Iran and China have never known it.  Nor has almost every other nation outside western Europe and the nations raised in the British Empire.

The U S is problematic.  When I look at the way they diverged from the British model, then, with the exception of their adherence to the jury system, I think they are worse off than us.  And therefore, more at risk of going under.

Take just three instances.  They did not require their head of the executive government to be a member of and answerable to Congress.  In my view, Trump could not have got anywhere with us.  They were not content to leave the English Bill of Rights on the statute book – they had to put it in the ark of their covenant.  They then gave unsackable and unelected people the power to run over government and make laws on the run – and along party lines.  They declined to make voting compulsory – like jury service.  That has led to wanton corruption and abuse of power.

In each case, they did so for fine ideological motives.  That was never the English way.  They always preferred hard evidence from the past to warm prognoses based on theory.  And in each case, they came up with a response that was in our eyes bullshit.

In short, they don’t have the right state of mind. 

And since the attack on the Capitol, and the surrender of the Republican Party, they look very vulnerable.

The English flirtation with ideology under the mantle of ‘sovereignty’ allowed them to be seduced by a mountebank from Eton.  But he never achieved the demonic or demotic pull of Trump, and after an interlude from the Goons Show, Tory elders restored a form of order.

The institutional failing was that a defeated and charmless government was suffered to remain in office.

Now there is another nation with the chemicals in the test tube.  Does Israel have the right state of mind to withstand a pact of evil formed by a gruesomely corrupt leader and religious fanatics who are unsafe at any speed?

My guess is that the nation called Israel will survive.  But its history with this kind of government is that of a moment compared to that of the English.  Its constitutional basis is even more shaky.  And since 1689, the English have had no trouble – at least in England – with God or his ministers.

Two things may then give us pause. 

A lot of our dispensation rests on convention.  What can be grown through use can be lost by misuse.  I had feared we had lost the Westminster System.  The question is whether we can get it back after the appalling revelations of the Robodebt Royal Commission.

Then, so far as I can see, the English doctrine of the supremacy of parliament may make it difficult, at least in the absence of a valid European legal proscription, to make legally impossible a move by the government against the judges of the kind presently attempted in Israel.

I simply don’t know – but the questions highlight the evanescence of convention.  In most other places of the world, the question is – who can command the armed forces and the police?

But some things remain constant.  The Israeli Channel Two commentator Ehud Yaari says that Netanyahu was so desperate to beat the rap that he was ‘willing to make unbelievable concession’ to the right fringe.  Boy, that sounds just like Speaker Kevin McCarthy.

And while we here in Australia have made many errors and done some bad wrongs, we have not come within a bull’s roar of Marjorie Taylor Greene.

And any people that can suffer its children to go unto her and Tucker Carlson cannot be said to have the right state of mind.

Constitutional law – England, U S, Australia – rule of law -Westminster System – Robodebt Royal Commission.

Stuart Robert and the evil of mediocrity

Even by Australian standards, Stuart Robert is a new low in our politics.  As the phrase goes, he just does not get it.  And his military background, misplaced loyalty, and limited intelligence, leave him prey to recycled tripe that in his warped mind leaves him free of any responsibility. 

Being ‘responsible’ is not a notion that looms large with a man raised as a minion to the armed services or as a soldier in the army of the God he prayed to in Parliament House with his friend and leader, Scott Morrison – another man of low intelligence with no idea of what it is to be ‘responsible.’

Robert’s performance yesterday before the Royal Commission was downright scary.  It was bad enough to call to mind the image of a bland mediocrity in another hemisphere in another time going to work each day with death in his briefcase.

Challenged by Commissioner Catherine Holmes about why he then continued to misrepresent the scheme publicly in media interviews when he knew it to be unlawful, Mr Robert said he was being a “dutiful cabinet minister” despite having “massive personal misgivings”.

“It doesn’t mean you have to misrepresent the figures though?” Commissioner Holmes asked.

“I had a massive personal misgiving, yes, but I am still a cabinet minister,” Mr Robert said.

“That’s what we do, ma’am.”

Pressed if this meant “misrepresent things to the Australian public”, Mr Robert said this happened often in the tax jurisdiction.

Mr Robert had previously been an assistant treasurer with responsibility for tax.

“Having come from tax, tax says black is white all the time. I’ve watched government do extraordinary things,” Mr Robert said.

That may not be moral insanity – but there is a vacuum where the conscience should sit.  A poor apology for a man allows a false sense of loyalty or duty – at least according to his evidence – to displace his humanity. 

This was a deformed version of the ‘superior orders’ response. 

And it recalls some observations about the ‘banality of evil’, and the conduct of a most mediocre man who looked ‘terribly and terrifyingly normal.’

Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all.  And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post.  He merely, to put the matter colloquially, never realised what he was doing…. It was sheer thoughtlessness….

The polite term for Robert is ‘galah’ – a galah who believes, or at least who is willing to assert, that in order to be a federal Minister of the Crown, you must be ready to take a hit for the team and tell the world a barefaced lie.

And he did not have to get this from his leader, the man he prayed with.  No, no, no – for them it was just business as usual.

Onward Christian Soldiers,

Marching as to war….

Robodebt – ministerial responsibility – Robert – Scott Morrison – Arendt.