Passing Bull 217 – Hearsay

 

Passing on what others say is called gossip.  Donald Trump is addicted to it.

‘They brought in another company that I hear is Ukrainian-based,’ the president said.

‘CrowdStrike?’ the surprised reporter asked, referring to the California cybersecurity company that investigated how Russian government hackers had stolen and leaked Democratic emails, disrupting Hillary Clinton’s campaign.

‘That’s what I heard,’ Mr. Trump resumed. ‘I heard it’s owned by a very rich Ukrainian; that’s what I heard.’

More than two years later, Mr. Trump was still holding on to this false conspiracy theory. (The Guardian, 5 October, 2019)

That’s right, Trump said four times that he had heard something.  Hearsay.

It’s therefore odd to see his loyal lieutenants in the Senate condemning a whistleblower statement as hearsay.  (As it happens, it is far more literate than anything Trump has said – ever.)

It is hard for some – including me – to understand what the whistleblower added to the White House record of the now famous telephone call.  But it is wholly absurd to suggest that the business of government could only be conducted according to the laws that govern what a witness in court might lawfully say in giving evidence.  You cannot, if objection is taken, tender a statement by a witness that another person told him he saw Bob shoot the deceased as evidence of the truth of that assertion made out of court.

But we, including government, all the time act on the basis of the truth of what we are told by others.  For example, it is only hearsay that Jesus of Nazareth was crucified.

Imagine this.  The head of the FBI rings the President to tell him that he has a credible source saying that terrorists are intent on blowing up the White House and killing the President and five world leaders – and the President responds by saying that he is not accustomed to acting on mere hearsay.

And yet – some parts of the infamous base continue to lap up this nonsense.

Bloopers
If Turkey does anything that I, in my great and unmatched wisdom, consider to be off limits, I will totally destroy and obliterate the Economy of Turkey,’ Mr Trump tweeted — sending the Turkish lira down 2 per cent.

Financial Times, 8 October, 2019.

He added he had done it before.

Passing Bull 216 – Malicious allegations

 

There is plenty of malice about in London and Washington.  Canberra has always showed some infection.  Politics involves contests, and they can get dirty.

If I see someone disposing of litter illegally, I would not normally be disposed to do much about – in despite of those road signs inviting me to snitch.  But if I saw someone I really had it in for doing it, I might be disposed to dob him in.  My motive would not be to help the law keep the place tidy, but to hurt my enemy.  I would be acting maliciously.  But that says nothing about the worth of the allegation itself.

If the evidence shows a breach of the law, then my motive for setting the law in action is irrelevant.  Socrates ran this argument – and paid the price.  (The law does know of a wrong called ‘malicious prosecution,’ but we can put that to one side.  It is, like ‘conspiracy’, a kind of fool’s gold invoked by silly people who have crawled out of the lions’ den, and want to go back for more.)

Consider then the following.

‘Allegations have been brought to the attention of the monitoring officer that Boris Johnson maintained a friendship with Jennifer Arcuri and as a result of that friendship allowed Ms Arcuri to participate in trade missions and receive sponsorship monies in circumstances when she and her companies could not have expected otherwise to receive those benefits,’ a GLA statement said.

Theresa Villiers, environment secretary, said the allegations were politically motivated. Speaking to the BBC Radio 4 Today programme on Saturday morning, she said: ‘I think this whole thing has been blown out of all proportion’.  (Financial Times, 29 September, 2019)

This is serious bullshit.  There is not even an allegation of malice.  The motivation is ‘political’.  What other motivation would there be for a political act?  Impeachment is a political act.  Does that mean its invocation is necessarily flawed?

Yet, on the weekend journalists who know nothing of the law lined up to criticize the U K Supreme Court for making a decision in a ‘political matter.’  If a government could avoid scrutiny by the courts just by saying ‘political’, you could kiss good bye to administrative law and indeed the rule of law.

Still, the erstwhile associate of the Prime Minister was up to it.

In a statement last week, Ms Arcuri said: ‘Any grants received by my companies and any trade mission I joined were purely in respect of my role as a legitimate businesswoman.’ (Financial Times, 3o September, 2019)

I wonder why the lady felt the need to qualify the final noun in that way – or at all.  Of course the transaction was merely commercial.

Bloopers

The idea that Trump’s conversation with his Ukrainian counterpart justifies this [impeachment], uniquely in the annals of all US presidential history, is utterly ridiculous.

The Saturday Australian, 28-29 September, 2019, Greg Sheridan.

Mr Sheridan evidently shares the inability of Mr Trump to perceive that the abuse of a public office for personal gain is a serious breach of the duty of good faith.  You wonder whether some had the same view of the priesthood.  You also wonder what Mr Trump has on Mr Murdoch.  But, then, Mr Sheridan was one of those getting into British judges.  That suited his current songbook.

Passing Bull 215 –Business and politics

 

If you have lived in a small country town, you know how important it is for people who run a business in that town – such as a pub or general store – to get on with and relate to the other people in the town.  They need to be seen actively to support the town.  People in bigger companies – such as BHP, ANZ, CSL or Westfarmers – have come to the view that the same goes for them and the people of Australia.  These companies – and their employees – want to get on with and relate to other Australians.  The Round Table Conference in the U S and the Financial Times in the U K have both confirmed a shift in big business away from confining itself to the bottom line.  So do those who run MBAs. 

The FT had a note about BHP and its legal counsel.

BHP was among the companies named in an investigation begun by the Commission on Human Rights of the Philippines in 2015, into whether fossil fuel groups have violated human rights by causing climate change. The company formally severed ties with the World Coal Association last year, after Australian green groups urged it to quit industry lobby groups whose policies did not match the miner’s support for the Paris climate agreement. Ms Cox says climate change is high on her team’s agenda because the company knows its long-term sustainability depends on support from investors, regulators and the broader society. ‘We need the support of our communities in order to be successful’, she says.

The operative phrase there is that ‘the company knows its long-term sustainability depends on support from investors, regulators and the broader society.’ Shareholders allow a lot of money to go to directors and management to secure the long-term sustainability of the company  – they are put there to do just that, and not just try to get a good next half-year profit statement and dividend.

It is surprising, then, to find people saying that companies like BHP have gone too far in their social outreach.  It is doubly surprising for at least three reasons.  Most of the people making these claims come from politics, the press or think tanks and they have no idea on how to run a business – because they never have.  But they are usually those who shout most loudly about freedom of speech and religion – but not freedom of companies to run their business as they and their shareholders see fit.  And these critics are looking for the short-term view and narrow focus that so disfigures our public life.

In How Markets Fail, John Cassidy said that ‘Economics, when you strip away the guff and mathematical sophistry, is largely about incentives.’  He then discussed the venom injected into our commercial life by executives being paid, say, 100 times the pay of their employees.  He said: ‘In banking, the CEO incentive problem is even more severe than in other industries.’  That was nearly ten years before our royal commission into that industry painfully showed how fine is the distinction between ‘incentive’ and ‘bribe’.

I only invest in companies whose management I trust to maintain their long term sustainability.   For me, BHP is the exemplar – in large part because of the conduct that attracts adverse comment of the kind I have referred to.  I have no interest in investing in a company that is only interested in financial returns to shareholders and that takes no interest in the public costs of its business. 

It is downright silly for people who have never run a business to be offering advice on that subject to people who do.  But, then, we have a government that occasionally calls itself conservative that makes laws that will enable it to dismantle businesses it does not like.  And a government that will empower its agent, the tax man, to snitch on those citizens who are managing their super fund in a way that the government does not like.  The want of reason is at least consistent.

Bloopers

No other US president has faced the prospect of being re-elected or going to jail. Whether a defeated Mr Trump would actually be prosecuted — by the Southern District of New York, for example, and for any number of alleged crimes — is immaterial. All that matters is whether Mr Trump believes he could face jail. To judge by Mr Trump’s words and actions, he considers victory in next year’s election to be an existential necessity.

Financial Times, 13 September, 2019

We may have hoped that the FT was above transcendental bullshit like ‘existential’ – either with ‘necessity,’ or at all.

Passing Bull 214 – Economics and Voodoo

 

How Markets Fail by John Cassidy (2009) is as instructive as it is readable.  On reading it again, I was struck by how evangelical many leading economists are.  They assemble in platoons preaching ideology masquerading as science.  One economist said of Hayek: ‘This kind of writing is not scholarship.  It is seeing hobgoblins under every bed.’  Friedman was the ultimate evangelist.  He could rewrite history to suit his program – he taught that the depression was not caused by market failure but by government failure. 

In 2003, one of Friedman’s successors said that macroeconomics had succeeded in solving the central problem of depression-prevention.  He reminded me of the heart surgeon who said of my chest pain that whatever its cause, it would not kill me.  Six months later, it bloody nearly did just that – because I had delayed in reporting to casualty for hours relying on his advice.  It was, as his Grace the Duke of Wellington observed, a damned close run thing.  So was the Great Financial Crisis – another painful case of a pretty syllogism broken by a sad fact.

It is not as if no one saw the GFC coming.  Mr Cassidy reminds us that in 2003, Warren Buffett told his shareholders that ‘In our view…derivatives are financial weapons of mass destruction that, while now latent, are potentially lethal.’  But there you go – the Harvard Business School had knocked back Warren Buffett.  Not the right kind of academic aura – like that of Mr Greenspan.

You can therefore imagine my relief when I read:

The economics department of Morgan Stanley…was refusing to hire any economics Ph D’s unless they had experience outside academe.  ‘We insist on at least a three-to-four year cleansing experience to neutralise the brain washing that takes place’…..’Academic  economics has taken a very bad turn in the road’….’It’s very academic, very mathematical, and it really doesn’t – I want to choose my words carefully here: it is nothing like as useful to the business community as it could be.’

Political parties and think tanks should take note.

When Mr Cassidy goes from ‘utopian’ economics to ‘reality based’ economics, we get:

….the essence of utopian economics is that the free market, by generating a set of prices at which firms and consumers equate private costs and private benefits, produces an efficient outcome.  But from the point of view of society, what is needed is a balancing of social costs and social benefits.  Free markets don’t lead to such a balancing….The market fails, and fails in a very specific and predictable sense.

This is not hard to get.  Dealing in cigarettes or alcohol has social costs – that might be met from taxation.  The same goes for dealing in carbon.  The simple thing to do to meet the social cost would be to impose a tax.

But you can’t do that if tax is an ideological blind spot. And if you subscribe to the ultimate dream of utopia – that money grows on trees.  It’s a bit like asking a keen footy fan to explain a Grand Final that his team just narrowly lost.  After the first few words, you can sit back and hear the needle in the groove as the record revolves fixatedly on its own axis until its predetermined end.

Bloopers

In a blunt message to corporate leaders, the Prime Minister told The Australian the government wanted them to step up and focus on discussions that led to better outcomes for workers and their families.  ‘If you want to advance the cause of your employees so they can earn more, there isn’t time for distractions…The most successful businesses are those that focus on that.’

The Australian, 13 September, 2019

This is hilarious beyond belief.  The Minister for Thongs knows nothing at all about business – absolutely nothing – but he feels free to tell business how to run itself – while saying that business has no place in talking about politics – which business has been driven to do because the politicians are so inept.  And this is from a political party that once had aspirations to being ‘conservative,’ but which is now introducing legislation to enable government to intervene at will in what used to be a free market.  Do those galahs really believe that we came down in the last shower?

Passing Bull 213 –Labels again

 

‘Virtue signalling’ is in vogue in some quarters as a label used as a term of abuse.  The other day, someone asked a sensible question.  What is wrong with virtue signalling?  Big corporates spend a fortune on it.  So do governments – although different considerations apply to different ways of spending public moneys.

Reading Richard Evans’ The Pursuit of Power, Europe 1815 – 1914, I came across some diverting labels.  In 1900, a German gynaecologist said: ‘The use of contraceptives of any sort can only serve lust.’  Given that the survival of the species depends on procreation, what’s wrong with a spot of lust – if you are still up for it?  The notion that sin is inherent in the word lust does not get much encouragement from the Oxford English Dictionary.

A Mayor of Vienna, who happened to hate Jews, was upbraided for sitting at a table with some Jews.  His answer was very simple. ‘I decide who’s a Jew.’

The word Prussian carries a connotation of militant if not military Teutonic discipline and froideur – all ghastly stereotypes.  And Bismarck was the prototype Prussian.  You might therefore be surprised to learn that Bismarck has a good claim to be called the father of the Welfare State.  The Iron Chancellor got in about a generation before Churchill and Lloyd George when he said that ‘the state had to meet the justified wishes of the working classes.’  He dubbed his aristocratic paternalism as ‘state socialism.’  That would be enough to send current Republicans clean out of their minds.’

But the prize for quote of the book goes to a Russian ethnographer who in 1836 said:

According to the observations of old timers, the climate of Kharkov province has become more severe, and it is now exposed to more droughts and frosts.  It is likely that this change has come about because of the destruction of forests.

Yes, that’s right – man made climate change was old hat in Russia in 1836.

Blooper – a good book

The book Finding my place by Anne Aly is a must.  She was two when her parents migrated here from Egypt.  She and they met the full face of bigotry about colour and Islam in Australia.  They were getting over this when Osama knocked over the twin towers and this was followed by the Bali bombing.  Reading this book, you get a clear idea of the damage done by people like Andrew Bolt and Alan Jones – and, I would add, John Howard.

Anne’s parents thought it would be easier for her, but that is problematic.  She went through two failed marriages.  On top of her primary degree at the American University of Cairo, she has a diploma, a master’s and a doctorate of philosophy.  Tickets don’t worry me too much, but she got the last two while raising two sons as a single mother.  That is on any view impressive.

She has a world-wide reputation for her expertise in counter-terrorism.  And she has put her training into effect.  One young Muslim who was being groomed told her third husband that but for Anne he would be dead or in jail.

The book is by turns heart-breaking and hilarious.  It is worth the price of purchase just for the spray she gave a shabby dealer who sought to renege on a sale of fencing and passed a  rude remark about Arabs.  Anne Aly does know my language.  And yes, she does sink the slipper into two politicians who – to my certain knowledge – asked for it.

I will only refer to two quotes.  This on being a Muslim in Australia after the twin towers.

There is something disempowering about hate.  If someone hates you for who you are, there really isn’t anything you can do about it.

This on being a federal MP.

I’ve never liked politics and I doubt that I ever will. I don’t rate my performance in media interviews where I’m pitted against a seasoned politician who barks out attacks and expects me to do the same, and my greatest fear is that I will become that person.

Anne Aly is the kind of person who will get right up the noses of the IPA and their ilk.  She is a Muslim woman who breaks all the templates and has made more of her life than they ever will.  This is her triumph, and I found it entirely uplifting.  I will give a copy to my oldest grand-daughter.  The language can be fruity, but the humanity of this woman is a winner for us all.

Passing Bull 212 –For or against?

 

After I had criticised a comment on where we have gone wrong as being too generalised, I was asked to express my view.  I did so as follows.

It is hard to avoid generalisation, but my sense – for what it is worth – is that the wounds inflicted on the less prosperous part of the middle class by the GFC, globalisation and technology have left them in a very disaffected condition.  They have a big grievance about inequality – which is justified on both capital and income – and an equally justified sense of insecurity. There is a loss of faith in our pillars, and sustaining conventions go west. This drives them back on to what they see as their fundamentals – their nationality or even their race – and, as in Italy and Germany in the 1920’s, this leaves them sitting ducks for populists and their conspiracy theories and scapegoats.  These people in turn fan the flames and increase division.  The inescapable word is ‘polarisation.’  It still has some way to go in the US and UK, but it is not far from the surface in the rest of Europe.  We have so far mostly avoided it – because we avoid politics.  You can forget the rest of the world.

I would be sympathetic to the suggestion that the decline of religion is a major factor but for three things.  The notion that you need God to be moral was blown up more two hundred years ago.  The behaviour of some people claiming to have God – like evangelical supporters of Trump or Catholic defenders of Pell – is genuinely revolting.  And a lot of the worst wars came out of religious schism.

They are what I see as the background to the moral catastrophe of people like Trump and Johnson.  I have the firm but utterly unverifiable notion that a big part of the problem is that for many Americans, Trump is God’s answer to their putting a nigger into the White House.  And I don’t think that too many supporters of Johnson are much better: Farage is shameless.

What we have at least now established is that when assessing a political leader it is fatuous to suggest you can ignore their moral character.

I would add two things.  The populism embraced by people like Trump and Johnson is said to come from parties that were conservative.  As I have said before, a populist is not a conservative.  And these two were born with silver spoons in their mouths.  They could not care less about the less privileged people they appeal to.  Indeed, if either has ever met a working man, that would have been an accident of history.

The result is that these people don’t stand for much. They are in it just for themselves Rather they are defined by what they are against.  Trump is against anything done by Obama, and people of a different colour or religious belief.  Johnson is against Europe – or so he says.  Both are against migrants –their scapegoats of choice.  When your politics are defined by what you are against rather than what you are for, your recipe for bitter division – polarisation – is complete.

A related issue is that people don’t win elections – the other side loses them.  That is an Oz specialty.

Bloopers

Something will have to give.  Environmental awareness is one thing but outsourcing sovereignty is something else.  Amazon fires have exposed what has long been suspected.  Despite international agreements and peer group coercion, in the end nations will pursue their self-interest.  With the passing of each survival deadline that decision becomes easier.

Maurice Newman, The Australian, 29 August, 2019

The man who wrote that was appointed Chair of the ABC.

**

In response to an ASX query about its 21% share price jump yesterday morning, OneMarket revealed it had ‘engaged in confidential discussions with a number of parties regarding potential corporate actions.’

‘Those discussions are not mature and there is no guarantee that those discussions will progress or will result in any corporate action,’ OneMarket said after the close of trade.

The Australian, 29 August, 2019

Would you buy a used share in that outfit?  What ‘action’ of a corporation is not ‘corporate’?

Passing Bull 211 – Empty noise about Pell

 

A Jewish friend once remarked to me that when a pope dies, everyone becomes an expert on papal elections.  We now see a similar reaction when a cardinal goes to jail.  The press is full of nonsense written by people who do not know the law and have not seen the evidence, but who rely on named academics or practising lawyers who are generally not named.  Two of the worst instances in The Australian on Saturday led me to write the following letter to its editor.

It is not surprising that Peter Van Onselen is ‘staggered’ by the certainty of opinion of some commentators. 

Paul Kelly is not a lawyer and has not seen the evidence, but he says that Pell ‘should not have been brought to trial on the second incident let alone convicted.’ 

Mr Kelly also says that the word of the victim was ‘accepted over that of Pell.’  That is at best misleading.  Pell denied the allegations to the police.  He did not give evidence at the trial.  The victim gave evidence on oath and was cross-examined at length.  The accused chose not to allow the court to hear and test his sworn evidence.

Gerard Henderson says that the argument for the option of a trial by judge alone ‘is never more evident than in this case.’  While Mr Henderson may not say so in terms, the premise of the argument appears to be that Pell ‘could not be guaranteed a fair trial if [his] guilt was assessed by a jury.’  The necessary implication is that the jury here did not discharge their oath and give a fair verdict.  Does Mr Henderson wish to extend that condemnation to the two justices of appeal who agreed with the jury?

My understanding of the majority judgment is set out in the note that follows below.  Much has been made of the fact that the minority judgment was written by a lawyer who practised in criminal law.  The assumption appears to be that that fact makes him better equipped to deal with this kind of appeal.  Even in The Australian Financial Review, we find its Legal Editor saying:

A leading criminal barrister speaking on background describes its reasoning as impeccable.  ‘You would be on pretty safe ground following Weinberg,’ says another.

The most common observation by those concerned about the verdict – and its sole reliance on testimony by a victim 20 years after the event – is that Weinberg got it right because he had the most experience in criminal law.

It’s unfair on his fellow judges – Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell – but it’s also true.

Put to one side the reference to ‘sole reliance.’  Generalisations about any form of governance are at best shaky, but if the suggestion is that criminal lawyers make better appellate judges in crime than others, the suggestion is not consistent with the legal history of Australia – or England.  Which may be just as well in the present case, since, as I understand it, of the seven justices presently on the High Court, only two have directed juries in crime, and the last epithet you would apply to one of those is ‘specialising in the criminal law.’

It is very distressing to see a sectarian divide that for most of us died a generation ago now being fanned into flame again.  The judges are used to copping flak, even when loaded with impertinence and ignorance, but you might spare a thought for the jurors in this case.  They sat through a long and hard trial and then wrestled for days with their decision.  They are now mocked and derided by people whose prejudice is manifest and who know not what they do.

One thing seems clear.  People have, for better or worse, made up their minds, and nothing the High Court does will change them.

 

Majority Judgment in Pell

  1. I have read the judgment, but not word for word. It is very long and involved.  I make three general observations.  First, all this is so far removed from my practice in the law that it is quite possible that everything I say is entirely unfounded.  Secondly, the complexity of our procedure is shocking.  The trial judge plainly earned the praise of the appellate judges. (Par. 17: ‘As the parties acknowledged during the hearing, his Honour’s charge was exemplary. Like his conduct of the entire trial, it was clear, balanced and scrupulously fair’. )  Our trial process is close to being unmanageable.  I am surprised more trial judges don’t break down under the load.  (Nor are appellate judges free of stress – see the discussion of ‘deference to the jury’ at pars. 105 – 109.)  Thirdly, some of the discussion about assessing witnesses suggests that I may not always have done it by the book in thirty years of trying issues of fact.
  2. Subject to those disclaimers, I comment as follows.
  3. The extracts of the evidence of the complainant suggests that he was a devastatingly articulate witness. And a brave one.  Potentially – and, actually – lethal.
  4. The response of the defence was in the alternative. The complainant’s story was either invented or a fantasy.  And in any event, it was impossible.
  5. There is a difference between an imagined account and an invented one, a deliberate lie and a fantasy (pars 68-73). As I see it – and I may be wrong – the problem with this defence is that the defence did not suggest a motive for the lie and did not explain the hallmarks of a ‘fantasy’ to the jury or the Court of Appeal.  (My shorter OED has: ‘Imagination; the process, the faculty, or the result of forming representations of things not actually present.’)  Even allowing that the onus remains on the Crown throughout, it is hard to see how a tribunal of fact might deal with this argument when each part has a doubtful footing.
  6. On the impossibility ground, it looks to me like Walker wanted to back away (116) but the majority (126) held him to it saying ‘the defence had made a considered forensic decision to express this part of the defence case in the language of impossibility.’
  7. The majority thought the Crown therefore had to prove a negative – that its case was not impossible – and that the evidence and submissions of the defence revealed only uncertainty and imprecision. The difficulty then can be seen here:

‘171 The point is, we think, powerfully illustrated by the fact that both parties filed substantial summaries of evidence in support of their respective appeal submissions. The schedule attached to Cardinal Pell’s written case ran to some 44 pages, summarising the evidence said to reinforce the ‘obstacles’ identified in the written case. The Crown’s responding table ran to some 32 pages. Shortly before the hearing, Cardinal Pell’s representatives filed nine individually-bound volumes which incorporated, with respect to each topic, both sides’ contentions and the relevant transcript extracts. The Crown responded with a document of its own, running to some 37 pages, which senior counsel handed up during oral argument.

172 Having reviewed this extensive documentation, we make two points about it. First, it demonstrated that on almost every point both applicant and respondent could find one or more statements in the transcript which supported their respective contentions in the appeal. Given what we have already said about ‘ebb and flow’, this is unsurprising.

173 Secondly, the fact that each side could call in aid such a substantial body of material drawn from the evidence reinforces our conclusion that the jury were not compelled to have a doubt. That is, there was room for debate about the effect of the evidence — both of individuals and as a whole — on almost every point. More importantly, there was always a well-founded and proper basis for rejecting evidence that conflicted with the central elements of A’s account of the offending.

174 Having reviewed all of the schedules of evidence and material placed before us on this appeal and having reviewed the evidence for ourselves, we are not persuaded that the jury must have had a reasonable doubt about the guilt of Cardinal Pell.’

  1. That does not look like High Court material to me.
  2. I noticed that the Court of Appeal had previously considered an offence committed in ‘circumstances of remarkable brazenness’ (101). The defence to me at times sounded a little like a scattergun – ‘we have so many bullets to fire that one of them must be lethal; alternatively, the enemy cannot survive their cumulative effect.’  (For some reason, I am reminded of the trial of the Earl of Strafford – I will look it up.* Things were simpler and quicker back then.)
  3. I was amazed to read that Pell in his prepared statement to the police, was permitted by his lawyers to say:

‘They’re[the charges are] made against me knowing that I was the first person in the Western world to create a church structure to recognise, compensate and help to heal the wounds inflicted by sexual abuse of children at the hands of some in the Catholic church.’

It takes your breath away, and it is precisely the kind of response that would have animated the discussion about whether the accused should give evidence.  Pell may as well have plastered a target down his front and pointed at the bull’s eye.  My suspicion – and it is no more than an a suspicion of a lay amateur for this purpose – is that this failure of the accused to stand up may have lead the jury – which, we are told, included a church pastor, a mathematician and a tram driver: a group of people who would not be likely to think in the same way as senior judges – to think that this was a case of honesty and innocence against money, power and ingenuity.  But that of course is the most idle speculation – and thank God juries do not have to give reasons.

  1. In any event, Pell’s lawyers have a hard road ahead.

*Strafford was impeached and charged with treason.  The Crown – which did not lose many of these treason cases then – alleged many instances of conduct adverse, they said, to the Crown.  Strafford argued that no one instance constituted treason.  With what Miss C V Wedgwood described as ‘wearisome reiteration’, Pym asked the peers to ignore what Strafford said about single articles and look on the charge as one of ‘constructive treason.’  But Strafford was winning the argument, and the Crown – I should say Strafford’s enemies – proceeded against him by a bill of attainder.  Then it got really ugly.  Oliver St John spoke in a ‘viciously vindictive manner’.  Honourable game was protected by rules of sportsmanship, but ‘it was never accounted either cruelty or foul play to knock foxes and wolves on the head…because they be beasts of prey.’  Strafford lost his head and even Macaulay and Churchill said that this was not cricket.

Bloopers

Later on Thursday Israel’s Interior Ministry announced that Mr. Netanyahu had decided to deny entry to the two American lawmakers, on grounds of their ‘boycott activities against Israel’ and in accordance with the country’s anti-boycott law.

New York Times, 15 August, 2019.

A law against boycotts is an interesting defence of a boycott.

**

‘We’re in favor of trade peace on the whole,’ Mr. Johnson told the president, in a mild-mannered rebuke of Mr. Trump’s embrace of tariffs as a bludgeon against allies and adversaries alike.

The New York Times, 26 August, 2019

Outside ‘the whole’ is a different matter.

**

Some sense in The Australian:

It’s not a matter of whether it’s ‘virtue signalling’ or which side of politics you’re on, but it’s a matter of insurance, and risk, both at a global and individual level.

At some point soon, insurance will become expensive and hard to buy.  Governments and companies need to move from trying to prevent climate change to dealing with it, and that should probably begin with thinking through what happens if we lose the insurance industry entirely.

Alan Kohler, The Australian, 20 August, 2019.

The rest know that Kohler is therefore an ‘alarmist.’

Passing Bull 210 – Angry church goers

 

According to the press, people of the church of the religion, if not the denomination, espoused by our head of state have opposed the proposed legislative provisions relating to murder in New South Wales by making provision for abortion.  A reasonable provision to that effect would I think be supported by a comfortable majority of people in that state.  But some people of faith take the view that they have no room to move on the moral issue of murder.   It is in my view sad when debate on a political issue of some nicety is shut down for some by religious dogma.  If people of another faith sought to produce that result, the outrage would be deafening.  That is something to be borne in mind by people of one faith – perhaps of one denomination of one faith – seeking to flex their muscles on the political stage.  But it is preposterous to argue, as some reportedly do, that the relevant laws should be left alone because they are not enforced.  People who embrace that form of inanity may wish to revisit Measure for Measure.

There is a similar flight from reality on requiring priests to report confessions of paedophiles.  My Catholic friends say that this is a non-issue because guilty priests do not confess.  They will be even less likely to confess if that confession must be reported to the police.  So, what is the problem?  Gerard Henderson says this is ‘symbolic politics’:

The Victorian government is giving comfort to the anti-Catholic sectarians in our midst without bringing about a situation where a paedophile is likely to be identified or a child protected.

Sworn evidence that a priest had reportedly confessed to these crimes over many years is dismissed on the footing that the ‘claim was not taken seriously.’  If there is some feeling against that denomination, it can be put down to the horror of the crimes committed in its name and this cold, blind refusal to accept responsibility for those crimes by doing all they can to ensure they will stop.

The notion that a church should or could be above the law is not on.  At this time in our history, the suggestion is revolting.  We need a secular society to monitor the claims, privileges and standing of bodies claiming to be religious.

Bloopers

They [the views of Tim Costello on refugees and ‘our hostility to boat people] matter, in part, because of the policy debate and the constant risk that this nation might again think, as it did in 2008, that it can relax its policies, and therefore, inadvertently, trigger resurgence in human drama.

But they matter also, and perhaps more importantly, because I think they misunderstand and slander mainstream Australians.

Chris Kenny, The Weekend Australian, 3-4 August, 2019.

Does anyone really believe that to comment on our hostility to boat people defames Australians?  To defame someone is to say something about them that causes ordinary people to think less of them.  Is that what a comment about our hostility to boat people does?  Is it possible that the policy of both major parties defames God?

**

When asked about the observation by Banking Royal Commissioner Kenneth Hayne that the use of slogans is undermining institutions in the place of policy debate, the PM said: ‘Well, I did stop the boats and people who do have a go get a go under my policies, so I think that’s a pretty good plan.  Cheers.’

Australian Financial Review, 10-11 August, 2019 (Laura Tingle).

Quod erat demonstrandum.

Passing Bull 209 – Alarmists

 

In one tribunal where I sat, the internal loo had a sign on the door: ‘This door is alarmed.’  I had to stop asking myself who had done what to alarm it.  Have you noticed that people who accuse others of being ‘activists’ are also prone to accuse others of being ‘alarmists’?  I say ‘accuse’ because the word is used as one of denigration.  Well, for much of the 1930’s Winston Churchill was alarmed about the rise of Nazi Germany, and he was widely dismissed as being ‘alarmist.’  The consequences of that dismissal could well have been fatal – because there was something to be alarmed about.

The problem came in the sixties when people invoked that history to shrug off suggestions that they were being ‘alarmists’ when the warned of the Yellow Peril and the ‘domino effect’ and we got locked into a losing war.  So ‘alarmist’ is like ‘activist’ – it all depends on the object of the alarm or activity.  ‘Alarmist’ is now used by those who lost the argument on climate change and are now seeking to cover their retreat with such dignity as they may command.  It will continue to be invoked as a banal label by those who accuse others of ‘groupthink’ and who give every appearance of being incapable of any other kind of thought.

Bloopers

The woman I went to hear confirmed that personal desks had indeed disappeared at her firm after an office move, as is so often the case. A small alarm went off in my head as she began to list the alleged benefits of ditching dedicated desks: employees could ‘work fast and more agilely’ to give a ‘better experience to customers’.  The alarm grew louder when she revealed the phoney slogan her company had used to describe the new system. ‘We didn’t call it agile working, we called it ‘fresh working’.’  Most regrettable of all, though, were signs of a mentality I can only describe as correctional.  Hot-desking apparently goes cold when workers try to cling on to a desk by sticking a family photo on it or draping a coat over a chair, moves she described as ‘signs of encampment’.

Financial Times, 29 July, 2019

The writer showed uncommon kindness in describing the mentality as ‘correctional’.  To describe an employee as showing ‘signs of encampment’ summons up images of the S S.

Passing Bull 208 – Decrying decency

 

It is highly entertaining to watch parts of the commentariat – the loudest voices in which call itself ‘the political class’ – decrying expressions of decency in big business – especially BHP and its CEO, Andrew Mackenzie.  Some people think that people in business should steer clear of moral and political issues.  They are just not clear about why this should be so.

We may put to one side the fact that those taking this position have a very shrill ideological commitment to a claimed ‘freedom’ of religious fundamentalists to condemn one in ten of us to Hell, but we can comfortably spot four reasons for them to be very jealous of Andrew Mackenzie.  He is much smarter than them.  He is much better educated than them – primary degree at St Andrews (geology); doctorate at Bristol (organic chemistry); Humboldt Research Fellow in Germany (nuclear science); the publisher of 50 research papers who speaks five languages (according to Wikipedia).  Finally, Mr Mackenzie does not just comment on others, which is the function of his critics – he creates jobs and wealth.  (There are not many of those about.  The BHP website refers to 62,000 employees and contractors.)  And, finally, he has leadership written all over him.

BHP has been outspoken on issues like indigenous recognition and relations with the First Nation generally; same sex marriage; climate change and coal; and diversity.  There are obvious reasons why a company engaged in mining in Australia or the Americas must have and profess strong policies on dealing with indigenous people.  Putting that to one side, there are at least three reasons why a company like BHP might be vocal on some moral and political issues.

One is the appalling failure of government to show anything resembling leadership on issues like same sex marriage and climate change.  Business has no alternative but to seek to fill the vacuum.  (The U S army decided years ago that it could not afford to wait until its Commander in Chief saw sense on climate change.  Insurers are now forcing others to act in the same way.)

Next, many shareholders expect this of their business; some demand it.  To describe such people as ‘activists’, as if you were articulating some truth, merely shifts the arguments down a rung.  In a society that calls itself capitalist, why should not the owners of capital deploy that fact to achieve social or political objectives?  Why should the owners of the business be precluded from expressing views about the position that the business adopts in the community?  As for the employees, is it not fundamental that a business goes better when its employees are happy in their jobs and proud of their work?

Finally, and perhaps as a result of the first two grounds, BHP should adopt the position it does because it is the right thing to do.  BHP has succeeded, and in my view all social groups depend upon those who have succeeded giving back to the community to those coming after them.  It is called noblesse oblige, and it is as essential for a company as it is for a family, a cricket club, a law firm, a small town, a political party, or a nation.  Mr Mackenzie looks to me to be the embodiment of this ideal.

May I relate this to my shareholdings in my super fund?   I hold shares in only eleven companies – four banks, three mining and exploration companies, two safe licensed investment companies, and CSL and Westfarmers.  I expect the businesses that I invest in to take care about their standing in the community generally.  I am broadly familiar with the management of all of those companies and, with one exception, I am content with that management.  The exception is three of the banks.  I am not happy with their management, or their standing in the community generally.  But – I am confident that they will change their ways; and in the meantime I have little option but to stay with them because the smallness of my fund and my reliance on it for income mean that I need to look for a safe yield above 6%.

Two anecdotes will show the value I put on good community relations.  When that dam that BHP had an interest in flooded a village in Brazil, Mr Mackenzie was over there within days and personally assuring villagers that the company would look after them.  It was very, very impressive.  I have acted for many large corporates, including BHP, and I can well imagine those in well-cut suits and under furrowed brows telling him such a course was risky and downright unwise.  This was leadership made visible.

When flying to the Bungle Bungles, I flew over the Rio diamond mine – a vast inverted ziggurat some distance from its lifeline airstrip – and I felt the thrill of ownership.  More importantly, at Broome I was told what a good job Woodside was doing in the local community.  I was also told a story that sounds like it has grown in the retelling.  A Woodside employee was making a pest of himself with a young woman at one of those fly-in, fly-out strips.  A Woodside executive told the miscreant of his lofty standing in the company, and that unless that man apologised to that young woman, he would be on the next plane back to Perth –and probably unemployable in that industry.

As a result of those incidents, I increased my holdings in BHP and Woodside (and, for that matter, Rio).  You may think that is a zany way to invest – well, it is my capital.  BHP is by far my biggest holding and I am very content with it – not least because it and Mr Mackenzie are acting in a way to attract criticism from those whom I least admire.

And when that criticism comes from those publicly associated with the IPA, which was, until recently, less publicly associated with coal and Gina Rinehart, then I know that our capacity for pure bullshit is unlimited.  And that’s also before we recall that those advising BHP how to run their business have never got with a bull’s roar of running any business.  Never mind – they don’t even draw the line at offering gratuitous but quite useless legal advice.

Bloopers

Asked earlier if Johnson’s team had sought any talks with Brussels, a Downing Street spokesman said: ‘What we’ve done is set out our position and say that we are very ready and will be energetic in beginning talking, but we’re also clear-eyed about what needs to happen if we are going to be able to secure a deal which parliament can support.

‘As I say, we are ready to begin talking, but we are clear what the basis for those discussions needs to be.’

The Guardian, 27 July, 2019

One problem with that is that it suggests that this government accepts that any deal must be supported by parliament.