Author: Geoffrey Gibson

King John and the Laws of England

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Part I

Macaulay did not like Strafford.  He called Strafford ‘the first of the rats’.  Well, Strafford did really frighten the English, and they were desperate to kill him – which they did by means that even Macaulay and Churchill conceded were outside the law – and definitely not cricket.  But for raw shiftiness, Strafford was no match for King John.  ‘Shifty’ is the right epithet here.  You see it in the famous El Greco portrait of the Inquisitor.  When Sir Jack Plumb came to describe the advent of the Hanoverian kings, he said that they came full of apprehension because their future subjects had a reputation throughout Europe for being shifty.  The most famous speech in the play King John is about commodity – that is the wilful expediency, egoism, opportunism and compromise that the English associated with a ‘trimmer,’ those who trim their sales to go with the flow, and which causes us to turn away from politics.  It’s what politicians show when we say that they are being shifty.  John Masefield thought that the play was about treachery.  We would call it a study in back-stabbing.  That is a frightful illness that this nation has succumbed to as one prime minister after another was coarsely stabbed in the back.

But when we look at King John now, we see the seeds of two great movements in the laws and constitution of England – Magna Carta and the rule of law, and the Reformation and religious Home Rule for England.  While looking at these, you need to recall that they took place while the English lawyers and judges were developing that body of case law that we call the common law.  That law would underlie the whole stupendous fabric, so that our greatest jurist, Sir Owen Dixon, could deliver a paper entitled The Common Law as an Ultimate Constitutional Foundation.  The English constitution is part of the common law.  (That is not the case in the United States.)

The play is about the sources of power.  A king has died.  Should the succession go to the next brother (John) or the son of the deceased (Arthur)?  France backs the latter.  It and England are on the point of going to war about it.  They patch up their differences with a fortuitous marriage after breaking the world land speed record in courtship.  But the Pope has it in for King John over a dispute about the next Archbishop of Canterbury.  His emissary, Pandulf, bounces the ball by addressing the kings as ‘anointed deputies of heaven’ – and he is peremptory:

I Pandulph, of fair Milan cardinal,
And from Pope Innocent the legate here,
Do in his name religiously demand
Why thou against the church, our holy mother,
So wilfully dost spurn; and force perforce
Keep Stephen Langton, chosen archbishop
Of Canterbury, from that holy see?
This, in our foresaid holy father’s name,
Pope Innocent, I do demand of thee. (3.1.64-73)

England (King John) responds:

What earthy name to interrogatories
Can task the free breath of a sacred king?
Thou canst not, cardinal, devise a name
So slight, unworthy and ridiculous,
To charge me to an answer, as the pope.
Tell him this tale; and from the mouth of England
Add thus much more, that no Italian priest
Shall tithe or toll in our dominions;
But as we, under heaven, are supreme head,
So under Him that great supremacy,
Where we do reign, we will alone uphold,
Without the assistance of a mortal hand:….(3.1.74-84)

Pandulf excommunicates King John on the spot and offers sainthood to his killer. 

The play came out less than ten years after the Armada (and two scenes later we get a reference to a scattered armada).  So, all this Catholic bashing would have been blood to a tiger for Queen Elizabeth and her loving subjects.  The Spanish would have been driven by God to burn this heretic, so that when this brave woman made her great speech at Tilbury, she had what Americans call ‘skin in the game.’ 

The Elizabethan reaction would have been raucous, but when I saw this play at the Barbican about a quarter of a century ago, the locals allowed themselves an audible frisson during this scene.  They were all talking about it at interval.  (I was most impressed.  These were the people and this was the city that stopped Hitler.  Herr Von Ribbentrop could hardly have arrived on stage with more éclat.)  Shakespeare was very kind to Queen Katherine in Henry VIII, but Pandulf gets it right down the front, both barrels.  He talks the French out of their alliance ‘to be the champion of our church’, leading the locals to revile ‘the curse of Rome.’  War preparations are resumed, and King John resolves to have the boy Arthur murdered.  And all this misery comes at the behest of a foreign potentate about a disputed succession – not to the English Crown but one English holy see.

Pandulf is oily and insidious.  He is loaded with the prevarications that the Elizabethans saw in the Jesuits.  With God and Innocent III behind him, he treats both kings like his deputies, just as Napoleon would treat them like chess pieces.  Pandulf is the puppeteer on the cover of The Godfather.  ‘Sovereignty’ is a blighted term, but while Pandulf was abroad, the kings of Europe and England saw theirs decapitated.  Pandulf is stalking proof of Protestant propaganda of the danger of breaking the biblical injunction against a servant having two masters.

What has this to do with the Reformation?  Other countries in Europe would be prepared to tolerate this interference in their nation’s governance, but not England.  Henry VIII seceded because the Pope was standing in the way of his securing his succession – a most vital function of a king.  By contrast, King John surrendered his kingdom to Pope Innocent under a bond of fealty and homage for which he was to pay an annual tribute to the Holy See.  That looks like a protection racket, Mafia style.  The Oxford History remarks that this hardly gave rise to adverse comment at the time: ‘It was only later generations with bitter experience of papal control that denounced the transaction in violent language.’  Other kings had acknowledged the feudal superiority at Rome, but the Tudors would look back at this time, and the problems with Becket, as the foundation of their drive to independence – if not liberation.  When the end came for the Vatican in England, it might remind us of what Gibbon said about the fall of Rome – the wonder was not that it happened, but that it had gone on for so long.

You will have seen that the author has King John refer to ‘that great supremacy where we do reign.’  I have no doubt that this was a deliberate allusion to one of the acts of parliament that secured the divorce from Rome.  The Act of Supremacy begins –

Where by divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king having the dignity and royal estate of the imperial crown of the same….

This was standard practice for English propaganda.  In building the common law, the judges resorted to legal ‘fictions’ to help get around road blocks set up by precedent cases and forms.  They were not so different when legislating.  Revolutionary changes would be described as simply affirmations of past customs, beliefs and laws.  So they begin by saying that their realm has always been accepted as an empire – the ruler of which can have no superior.  Well, King John plainly had a superior – but why rest on aberrations?

Shakespeare would show that he was alive to the issue.  When the French herald came to deliver the message of his king to King Henry V of England before Agincourt, he said that the French could have dealt with Harry at Harfleur, but that ‘now we speak upon our cue, and our voice is imperial: England shall repent his folly’.  A little later that night, Harry moved among the sad and depleted English troops in disguise – ‘a little touch of Harry in the night.’  ‘What are you?’ the king asks.  Pistol – a swaggering drunk – replies ‘As good a gentleman as the emperor’.  This leads the king to say: ‘Then you are better than the king.’

So, the English asserted their supremacy over the Church of Rome.  They did so through their parliament.  This was too big a job for a king alone.  The next phase of their history was in establishing the supremacy of the parliament over the king.  That process would be more or less complete by 1689, after what they call the Glorious Revolution.  It started with what we call Magna Carta in 1215.  The progress led to the form of government that we enjoy today.  There was nothing like it anywhere else in the world.  When the Americans affirmed their supremacy over the English Crown they simply used English precedents as their templates.

MY SECOND TOP SHELF – 17

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[These are serialised extracts of all the fifty books referred to in a book as yet unpublished called ‘My Second Top Shelf, or What Used to be Called a Liberal Education’. The content of these may change before further publication.]

HUCKLEBERRY FINN

Mark Twain, 1884

The Library of America, 1982; composite volume ‘Mississippi Writings’; bound in cloth boards, and slip case; the volume includes three other works, including The Adventures of Tom Sawyer.

You don’t know about me, without you have read a book by the name of ‘The Adventures of Tom Sawyer’, but that ain’t no matter.  That book was made by Mr Mark Twain, and he told the truth mainly.  There was things which he stretched, but mainly he told the truth.  That is nothing.  I never seen anybody but lied, one time or another, without it was Aunt Polly, or the widow, or maybe Mary Aunt Polly – tom’s Aunt Polly, she is – and Mary, and the Widow Douglas, is all told about in that book – which is mostly a true book; with some stretchers, as I said before.

That’s how this novel starts.  Huck then has supper with the widow.

After the supper she got out her book and learned me about Moses and the Bulrushers; and I was in sweat to find out all about him; but by-and-by she let it out that Moses had been dead a considerable time; so then I didn’t care no more about him; because I don’t take no stock in dead people.

This book is about the friendship between two people, Huck and Jim, who are both fugitives – Huck is fleeing from one beastly white man, his father; Jim is a Negro who is fleeing from all white men.  They are both, if you like, refugees – but Jim’s condition is pitiful and illegal, while Huck is troubled that he is assisting Jim to escape – it is like aiding a thief. 

The hypocrisy shocks us now.  One lady, quite possibly one of an ‘evangelical’ disposition, feels sorry for and takes pity for someone she believes to be a runaway apprentice – Huck – but boasts about unleashing the dogs on a runaway slave – Jim.  Twain said that ‘a sound heart is a surer guide than an ill-trained conscience,’ and he certainly got that right.

Three things will trike you quickly about this book – it is a ripper of a yarn; it is written in a graphic vernacular; and it tells home truths about America as it was – and, sadly, still is. 

On each of those grounds, it is a wonder that T S Eliot was a fan.  And he was more than just a fan.

The Adventures of Huckleberry Finn is the only one of Mark Twain’s various books which can be called a masterpiece….Huck Finn is alone: there is no more solitary character in fiction.  The fact that he has a father only emphasizes his loneliness; and he views his father with a terrifying detachment.  So we come to see Huck himself in the end as one of the permanent symbolic figures of fiction; not unworthy to take a place with Ulysses, Faust, Don Quixote, Don Juan, Hamlet and other great discoveries that man has made about himself.

Well, there you go – none of those five characters – or ‘permanent symbolic features of fiction’ – is a bottom-feeder.  Each is, apparently, a great discovery that man has made about himself.

Some of the most hilarious passages in the book concern two grifters known as the King and the Duke – David Garrick the Younger and Edmund Kean the Elder – who scam hillbilly towns by posing as actors.  They have a killer merchandising card: ‘LADIES AND CHILDREN NOT ADMITTED.’  That really winds up the locals.  (Before the election of Trump, you may have thought that kind of mockery was over the top.)

But how could they leave Jim on his own on the raft on the Mississippi when any number of people would rush to seize him for the reward?

He was uncommon bright, the duke was, and he soon struck it.  He dressed Jim up in King Lear’s outfit – it was a long curtain calico gown, and white horse-hair wig and whiskers; and then he took his theatre paint and painted Jim’ s face and hands and ears and neck all over a dead dull solid blue, like a man that’s been drownded nine days.  Blamed if he warn’t the horriblest looking outrage I ever see.  Then the duke took and wrote a sign on a shingle so –

Sick Arab – but harmless when not out of his head.

And he nailed that shingle to a lath, and stood the lath up four or five foot in front of the wigwam.  Jim was satisfied.

Heartless or malicious people can’t write like that.  It is therefore sad – if perhaps not surprising – that some members of the American academic establishment think this book is ‘racist’ and that it should be banned from schools or the like. 

Some get exercised over the repeat use of the word ‘nigger’.  It is not a good idea to try to resolve issues of moment by recourse to labels.  It is as hard for me to think that the author of Huckleberry Finn was loaded against black Americans as it is hard for me to think that the author of Kim was loaded against the peoples of India.  The whole of the book in each case refutes the allegation.  Rather, in my view, the charge reflects a prejudice in the mind of the person making it. 

The two novels have a lot in common.  The hero of each is a boy.  He falls in with a man who is older than him and who is of a different race and a different world.  They embark on a journey, physically and morally.  The novel is about their coming together – like Don Quixote and Sancho Panza.  If we were a little less Anglo-Saxon about all this, we might even say that this was a love story. 

However that may be, Huckleberry Finn, like the other two novels just mentioned, is a testament to humanity that can stand however many readings you need for a decent fix.  So, read it say once a year – as Faulkner said that he did with Don Quixote – and leave those dreary drongos to strain like gnats at a camel.

Here then is T S Eliot again, a man not given to sweeping praise.

What is obvious … is the pathos and dignity of Jim, and this is moving enough; but what I find still more disturbing, and still more unusual in literature, is the pathos and dignity of the boy, when reminded so humbly and humiliatingly, that his position in the world is not that of other boys, entitled from time to time to a practical joke; but that he must bear, and bear alone, the responsibility of a man.  It is Huck who gives the book style. The River gives the book its form.….

And it is as impossible for Huck as for the River to have a beginning or end — a career. So the book has the right, the only possible concluding sentence. I do not think that any book ever written ends more certainly with the right words:

‘But I reckon I got to light out for the Territory ahead of the rest, because Aunt Sally she’s going to adopt me and civilize me, and I can’t stand it. I been there before’.

I wonder if Ken Kesey had that ending in mind when he ended One Flew Over the Cuckoo’s Nest with the words: ‘I been away a long time.’

The dreamtime of a ghost-seer

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

(Serial form)

After reading another biography of the English statesman and jurist, Lord Haldane, and being reminded that he was trained at Edinburgh and Gottingen in philosophy, I bought a volume that he wrote on the subject.  It is called The Pathway to Reality, and it contains the Gifford Lectures he gave at St Andrews in 1902-1903.  This was a time when English philosophy was heavily influenced by German idealism.  Haldane was right into the metaphysics of Hegel.  Very few read Hegel now, and even fewer could understand it if they did.  But this book now comes not just from a different time, but a completely different world.  Here is an example – picked at random (from the third lecture):

The problem of Philosophy may be defined to be to find the highest categories under which to think individual actuality, and to get the most adequate and complete conception of it.  So alone, by this method and by no other, does it seem as though we could reach a view of God.  At the plane of experience of our everyday lives, we do not use the highest categories, because we are not in search of ultimate truth.  Our necessities, our purposes, our standpoints, are provisional and finite only, and we have no need to go beyond them in the organisation of our view of experience.

How would it be if you got on a plane for London and as you take the first sip of Scotch and soda, the guy in the seat next to you leans across and inquires eagerly: ‘Could we start, perhaps, with your conception of individual actuality?’  The whole lot is just about meaningless to us now.  We know that David Hume exploded metaphysics, and I now have a better understanding of his famous peroration.

If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask,  Does it contain any abstract reasoning concerning quantity or number? No. Does it contain any experimental reasoning, concerning matter of fact and existence? No. Commit it then to the flames: for it can contain nothing but sophistry and illusion.

This is just another case of philosophy winding up in a cold dead end.  But I am old fashioned enough to think that training in it helps train the mind – and God knows we could use as much of that as we can get.  It certainly did not hurt Haldane.  He was a first rate jurist and statesman.

*

Shakespeare presents no such problem for me.  I have all the plays on video and audio cassette.  At the start of the lock-down, I bought the full set of 38 plays on CD put out by Arkangel.  It’s ridiculous.  You get the plays performed in front of you by the best Shakespearian actors in the world – by far the best – and all with perfect sound – for about $10 a play.  I am going through them – at random.  The last three I finished were Titus Andronicus, Two Gentlemen of Verona, and Pericles (with an ageing Gielgud as Gower).  None of those is in his top shelf, but there is something that gets me in each one, and in spite of its wanton brutality, I have had a morbid fascination with Titus ever since I saw that marvellous film of it by Julie Taymor (1999).  Otherwise, you can just sit there and let the sound wash over you – as you might with the Goldberg Variations of Bach – even if I sit there with my mutilated Everyman volume of the text – with pencil in hand, like a conductor.  I am always struck again with the wonder of it, and I now find the musical accompaniment surprisingly important and engaging.  Last night I played the first half of Midsummer Night’s Dream.  I saw the famous 1970 RSC production in Melbourne, and I have seen it in our Botanical Gardens and in the gardens of at least two Oxford Colleges.  And I enjoyed the Hollywood version.  This is not easy to put on film, but I thought Kevin Kline was very good as a mysteriously tragic Bottom – backed by some of the big hits of Italian opera.  And I and my older daughter nearly died laughing when we saw the mechanicals, as the yokels are called, in the AO production of the Britten opera in rehearsal about thirty years ago.  The Arkangel version sounds flawless to me.  The range of the voices over four different levels of characters is something of wonder.  They speak the lines as they breathe the air.  For example, Hermia is played by Amanda Root.  (I used to wonder how she may have suffered under that name until Joe Root was made captain of England.  When I arrived at the courtyard of my college at Oxford on one occasion, a cheery English guy I had met on previous occasions told me and the rest of the motley that ‘Joe Root is not out on 180.’  I said: ‘With a bloody name like that, God might owe him one.’)  Amanda is perfect for this part; she reminded me a lot of the young lady who played Natasha in the BBC War and Peace – the gushing exuberance of a girl becoming a woman.  And apart from the mechanicals, the comedy is ultra-ripe.  There is that wonderful moment when Lysander’s blood goes up too fast in his pants and the chaste Hermia banishes him to the bushes for the night.  As it happens, that turns out to have been a serious tactical error, but you wonder how many times that scene gets played out on a park bench, or a back seat at the Moorabbin Drive-In.  Almost immediately, the now drug crazed Lysander repudiates Hermia and pants his newly found lust at Helena, and she gets the line of the night:

Wherefore was I to this keen mockery born?

When at your hands did I deserve this scorn?

We do not know if Chaplain, or the Marx Brothers, or the Goons saw this great comedy, but we do know that it was and is part of their and our heritage.  It is another example of the remark by someone – perhaps Olivier – that being with Shakespeare is like touching the face of God.  In a way that is far beyond the dreams of Hegel or Haldane.

*

Lawyers tend to specialise, but they should try to stay as general as they can for as long as they can.  In addition to specialising, some also confine themselves to one kind of client.  This can be very damaging.  Some people act only for insurers.  In the U S, some first amendment lawyers act only for the press. In Australia, some criminal lawyers act only for the accused – and risk getting bitter and twisted about the coppers or becoming indifferent to conduct that does serious harm to people; like psychiatrists, they risk being adversely affected by what they encounter on the job.  The worst kinds of one-sidedness that I see is in industrial relations where many operate only for employers or employees – and trade unions.  These people can end up terribly blinkered – biased or prejudiced, or politically committed.  And all those conditions are the precise opposite of being professional.  It is fundamental to our legal process that you hear both sides before forming a judgment.  In my view, lawyers should seek to apply that principle to their practice.  It is to my mind obvious that lawyers who are used to seeing both sides because they act on either side are much better equipped to look after their clients than those who only get to see issues from one perspective.  In my twelve or so years running a statutory tribunal that dealt with disciplinary issues, I frequently encountered lawyers who showed problems in dealing with either of those issues.  Because the statutory body ran an essential government service, the fire brigade, whose members belonged to a fiercely protective trade union, there were often ‘industrial’ issues which would lead to a Labor oriented firm being instructed on behalf of the union.  Then I might have an industrial law barrister in front of me.  But if the charge alleged conduct that constituted a criminal offence, I might have a lawyer from the criminal bar before me.  One day I could get some crusading union lawyer playing to the gallery and singing the union anthem – when the punter’s best interests would be served by a quiet ‘Sorry, but I promise it will not happen again.’  The conflict of interest was palpable – embarrassingly so.   Then I could get some bull-nosed crusader from the criminal bar who would decide to savage the investigating officer for old times’ sake, and then you would get a novice who would take the fifth – which is a form of suicide before such a tribunal.  These were difficult and frustrating times for me.  Because some counsel were unable to do their job professionally, the tribunal can be put in the difficult position of trying to remain neutral while juggling with the rights of the accused.  It got even worse when industrial advocates appeared.  They may have had some rough training in industrial advocacy, but that was far from being enough in that kind of tribunal.  After I had made sure that word got to the union to that effect, that practice stopped.  Something similar happened when I was told that the Crown would not brief counsel to appear before me in tax cases if they had appeared for the taxpayer.  That practice looked pernicious on more than one ground, and the Crown on advice cut it out.

The dreamtime of a ghost-seer

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

(Serial form)

From about 1983 on, I usually found an excuse to go overseas at least once a year.  I had done the mandatory hitch-hiker’s guide to the Continent in 1966-7, but I wanted to see more of the world – and in rather more comfort.  Although I would do it hard down the back of the aircraft for about twenty years – until I resolved not to go long haul ever again unless I was at least in the middle of the aircraft.  I would usually attend a conference – and I did find it very helpful to swap notes with lawyers from all round the world – and when Blakes opened an office in London, that gave me another reason to go there.  I wanted to go to all the great cities, which I have done, and through multiple visits, to be able to feel quite at home in London, Paris, Berlin and New York.  I have done that, and I am very glad that I have.  Each of those cities is special for me.  My favourite may be Berlin – I am very fond of the Germans – but for business reasons, I visited London far more than the others.  And after the first couple of visits, I stayed at the Cavalry & Guards Club at the top of Piccadilly, opposite Green Park.  I loved the place, and it in turn gave me reason to keep returning to London.  I felt completely at home there – more so than at the Melbourne Club.  (The Guards had women members – as does the British army – and this may have helped me feel at home.  Both my daughters would stay there later.)  There is a club bar on the ground floor next to a courtyard garden.  Upstairs, there are two dining rooms.  Outside the main one, there is a lounge with comfortable armchairs in floral fabrics, standard lamps and small fires.  You have your cocktail there, order your meal, go in for dinner, and come back out for coffee.  London clubs recreate the atmosphere of home so well.  This is close to my idea of civilisation.  The breakfasts remain for me a joy forever.  The accommodation is basic – in the bachelors’ quarters it can be downright barbarous – but I have so many happy memories of my time there.  I will just mention two anecdotes that may help explain my great affection – love, even – for this club.  I flew in one day from Budapest.  It was a beautiful sunny day as we flew up low along the Thames and up to the west end.  I could just about point out the Cavalry & Guards Club over Piccadilly from Green Park.  You feel like tapping the pilot on the shoulder: ‘If you could put me down here, Sportsman, it would save a lot of buggerizing around on the ground.’  When I got to the Club, about three hours later, Peter, the porter, was on his own, shirt open, braces, and toast on.  You can fire a cannon through these places on the weekend.  I had known Peter for years and I was very fond of him.  He was at peace this day.  David Gower was in, and batting beautifully.  I got my key and lugged the bag up to the single quarters on the third floor.  Window on to Piccadilly; dunny 10 yards one way; bath – no shower – 10 yards the other way.  After a decent interval, I went back to see if there was a room free in the married quarters – where there are showers – en suite.  But the mood was very different.  The toast has burnt, and Gower was out – the bludger!  I asked Peter about the married quarters.  He gave me a very pained look and said ‘You don’t want to change rooms already, do you?’  Well, shit, of course not.  The very idea was ridiculous.  I sloped off to the RAF Club just up the road for a couple of heart starters and a meal in the Buttery.  A few years later, I went down to my Club for breakfast on a Saturday – a real innovation for the Club.  Two youngish gentlemen were sitting near me – immaculate in pin-striped civvies with regimental ties on Jermyn Street shirts – under regimental haircuts.  They were obviously cavalry officers.  They were about to resume rehearsing a ceremonial event across the park – at Buckingham Palace – possibly the Trooping the Colour – I don’t know.  One of them appeared to be finding the whole thing very tricky – and I hoped that Her Majesty’s security did not rest on his shoulders alone.  As they got up to leave, he bent over and picked up a sugar cube.  ‘Take a piece of sugar for the horse.’  Well, moments like that make the whole bloody thing worthwhile.  You can’t dislike people who do that.

*

The style of London clubs may be exportable.  It has certainly affected the way I Live now.  When I went back to the bar, I had a five year annuity from Blakes to help with the transition.  They were sensibly generous.  I could afford to set up chambers as I wished.  In my first manifestation, I had been consumed by the need to build what for me would be the best library possible – especially on legal history, which was and is a large part of my intellectual life.  I spent a fortune on law reports – all made next to useless by computers.  I was determined to abandon the old style partner’s desk and bookshelves.  I bought a wooden roll-top little desk to go against one wall.  It went with two dining chairs in bright lined fabric, one for me, and one for a client.  There were three wing chairs in floral fabric and one low armchair in a fine fabric with the badge of Florence.  There was a sofa in mahogany leather, two lamps, two coffee tables and a small bookshelf with a CD player.  The walls were festooned with seriously good aboriginal paintings, framed photographs and contemporary art.  It was a very comfortable place to work and talk in.  Brendan Griffin drilled the walls to plug the paintings.  A lot of that is now at home in Malmsbury where I have two large living rooms separated by double doors.  I call the décor of the main room ‘1948 Paris Dambusters.’  There are the winged chairs in floral fabric, and the Florentine armchair; a small oak drop side table with two dining chairs with ridiculously expensive fabric with Chines motifs; a sofa in faded Sanderson linen; a wooden cabinet with painted doors to hide the Grundig TV; about five little lamps each with its own style and memories; a large stylish white Ikea bookshop with the best books described in the four books I have written about; two coffee tables; a Chines style cocktail cabinet, and two smaller wooden cabinets, both with painted figures; one standing sculpture; various ornaments from all over the world; another bookshelf with books of distinction; a display of the operas and jazz musicians I live on; serious paintings of aboriginal and pop art – the latter may well be my favourite; A Marantz player with two English speakers in white on the Ikea shelf; and works on paper by Blackman, Boyd, Nolan, Percival, Smart, Storrier and Williams – and a small framed original cartoon of Keats; and a mask from India and one from Venice.  The adjoining room is similar, with another sofa in floral fabric, two wing chairs in toile, and the mahogany desk that my mum and dad got made for me in Hong Kong in 1963.  The idea is to surround and secure myself with what I live for.  It works and I love it.

*

In  reading a very full biography of Karajan by Richard Osborne, a man who really knows his subject, I was struck by the similarity between the roles of a conductor and of a coach of AFL or rugby.  They want to get the best out of their men, singly and as a group, but there may well be a reserve of raw fear.  Playing in an  orchestra may not be brutal on the body as well as the mind, but there is a hell of  a lot on the line in training, effort, name and money.   I have seen Craig Bellamy, of Melbourne Storm, with his men in what would be called his soft, frank paternal side when they were at the lowest ebb a footy club could ever get to.  (They had just been belted for dishonest breaches of the salary cap and their season was over.)  But I have also seen grown men drop their voice after they had felt his anger.  Mr Osborne has one musician saying of Karajan ‘you were always afraid that one day he might suddenly turn.’  Mr Osborne says Karajan did not humiliate people but:

Since Karajan never raised his voice much above the semi-audible mutter, rebukes, when they came, put the fear of God into players.  The silence was so intense you could hear a mute drop two blocks away. By contrast, singers or orchestra players who threw tantrums were studiously ignored.

Karajan, it was said, affected not to notice when during a long  rehearsal of the slow movement of Beethoven’s Fifth, one cellist took off, saying ‘That’s it.  I’ve had enough.’  Elizabeth Schwarzkopf, the leading soprano of her generation, said Karajan was like a cat, ‘sleek and attractive but capable of suddenly lashing out.’  Mr Osborne is gentle and discrete about one difference to Mr Bellamy.  ‘There were girls as well…Floosies came and went.’  Well, the Italians do not have exclusive rights there.  And we are told that after a long day, Karajan liked nothing better than a light supper and then lying on the floor to watch the Marx Brothers.   An English viola player felt exalted and honoured to be asked home to dinner with the Italian maestro in New York.  Toscanini wolfed down his pasta and chianti, and retired to watch TV wrestling – with the most fruity, obscene abuse straight out of the Brooklyn gutter.  The maestro was a man after all.

Passing Bull 256 –Unexpressed assumptions

/ Geoffrey Gibson / Leave a comment

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

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

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

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

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

Bloopers

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

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

Tripe.

The dreamtime of a ghost-seer

/ Geoffrey Gibson / Leave a comment

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

(Serial form)

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

*

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

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

That was on 24 June 1941.

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

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

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

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

*

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

*

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

*

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

Here and there: Aristotle’s Rhetoric

/ Geoffrey Gibson / Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is a very interesting perspective – at either end.

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

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

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

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

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

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

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

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

The dreamtime of a ghost-seer

/ Geoffrey Gibson / Leave a comment

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

(Serial form)

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

*

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

*

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

*

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

Passing Bull 255 –American fallacies

/ Geoffrey Gibson / Leave a comment

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

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

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

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

Bloopers

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

…

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

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

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

Passing Bull 254 –Public interest and privacy

/ Geoffrey Gibson / Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank Heaven for the simple goodness of nature.