Passing Bull 146 – Some bad rights

 

If I agree to paint your house for a fee, and after I start the work, I make it clear that I will not perform my part of the contract, then the law says that you can put an end to the contract and make other arrangements free of any further obligation to me.  If you do that, the law says I have ‘repudiated’ the contract, and that by ‘accepting’ that repudiation, you have brought the contract to an end – by the operation of the law.

In broad terms, that is what happened in the English Revolution in 1689, the American Revolution in 1776, and the French Revolution in 1789 and later.  The people said to their king, with the force of arms – ‘You have broken your word and you have not done your job.  We dismiss you and we will set up a new form of government.’  Indeed, the great French historian Marc Bloch said that the contract between a feudal lord and his vassal was a genuine contract to the same effect.  ‘If the lord failed to fulfil his engagements, he lost his rights.’  Bloch foresaw how this doctrine might be applied in the political sphere – ‘it was reinforced by the very ancient notions which held the king responsible in a mystical way for the welfare of his subjects and deserving of punishment in the event of public calamity.’

During the course of events that we label the French Revolution, the French had a go at defining what they called the rights of man.  They did it in 1789 and again in 1793.  People now generally go the 1789 model, when hope and innocence reigned.  By 1793, France and the world had seen the terrorism of the Jacobins.  They had to face the familiar problem of those who come to power by force: how do you stop others doing the same to you?

Article 25 of the 1793 French Declaration of the Rights of Man says:

When the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties.

This provision was not in the original version.  History suggests that it was most unwise to purport to give a legal formulation and blessing to a right of insurrection – the right to revolt.  Who will rule on the issue of whether the right has crystallized?  The answer can only be force of arms – if you win, you are the government; if you lose, you get executed for treason.

But some kind of claim to a right of insurrection was instrumental in a string of revolutions that cruelly bedevilled France for a century after 1789.  And it still works to stand in the way of reform in France.  Industrial action there is a form of insurrection.  Social positions get entrenched as matters of status to an extent that is medieval – or even feudal.  That was not what the revolution was about.  The result?   The public sector consumes 56% of GDP in France; train drivers can retire at 50; and the nation braces itself for more insurrection against the reforms of President Macron.

A century beforehand, the English had used a different tack.  Article 6 of the Declaration of Rights prohibits the raising of a standing army except with the consent of parliament.  If it is hard for a king to drive a program without money, it was even harder for the king to conduct a coup without an army.  The king had been neutralised, as history has since shown.  But the Declaration goes further than ensuring that the king would have no army.  In Magna Carta, the barons were in a position to dictate that the king would sign up for a truly life-threatening security clause that could be invoked if he were to misbehave.  The barons could in effect appoint themselves receivers to enter into and seize crown property.  Well, that would hardly do nearly five hundred years later, and William and Mary were in a much stronger negotiating position than King John.  Besides, English lords or knights from the shires would hardly have had any interest in or any capacity to take over affairs on Chesapeake Bay, or from the Begums of Oudh.  So, Article 7 provided, and still does, that ‘the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law’.  .

The incoming king was an experienced man of arms and a seasoned man of affairs. There can be no doubt that he appreciated the inevitable consequence of Articles 6 and 7 of the Declaration of Rights. ‘Your Majesty shall have no army unless we agree, but we shall remain armed whether you agree or not.  If there is a disagreement about how you discharge your obligations, and we cannot resolve that disagreement by negotiation in good faith, and our differences have to be resolved by the arbitrament of arms, we shall prevail and you shall lose.  Your best option then will be exile.’  If they had been in a mordant frame of mind, they may have given Prince William a sketch of the shed where they kept the axe.

Sir Jack Plumb said:  ‘The Bill of Rights had its sanctions clauses – there was to be no standing army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.’   The phrase ‘right of rebellion’ may make constitutional lawyers blush, but Sir Jack may have had in mind the right of the innocent party to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.  Plumb had also said that:  ‘the power of the 17th century gentry was sanctioned by violence’ and that ‘by 1688, violence in politics was an Englishman’s birth-right’.

Or course, now that English political society has ceased to treat violence as its ultimate sanction, these constitutional provisions have become a dead letter, as they clearly should be so regarded in any civilised society.  This is not so across the Atlantic, where the American version of the right to bear arms serves to keep the United States in the race for the title of the murder capital of the world.  There they have, but refuse to confront, the problem facing the French after 1789.  A right simply to bear arms is useless unless the citizen can lawfully claim to use them.  Who decides that? The lethal American answer is the gun.

What is the point?  Declaring rights broadly is bloody dangerous.

Bloopers

 

‘Qantas objecting to what Folau is saying about homosexuality is beyond laughable.  I don’t agree with Israel but I’ve told him most explicitly that he must not back down.’

The Australian, 13 April 2018

Alan Jones with his characteristic humility.

Speaking later with reporters aboard Air Force One as Mr. Trump headed to Florida, Ms. Sanders added that ‘the president has been clear that he’s going to be tough on Russia, but at the same time he’d still like to have a good relationship with them.’

Another White House official, who spoke on condition of anonymity to describe internal deliberations, said Mr. Trump had decided not to go forward with the sanctions. Mr. Trump concluded that they were unnecessary because Moscow’s response to the airstrike was mainly bluster, the official said.

The New York Times, 17 April, 2018.

Well, he can recognise bluster when he sees it.

Passing bull 145 – Bull about independence

 

What does it mean to be independent?  The Shorter Oxford English Dictionary says: ‘Not depending upon the authority of another; not in a position of subordination; not subject to external control or rule; self-governing, free.’  The root of the condition is not being dependent.  What does that mean?  ‘To be contingent on or conditioned by.’

Can I retain a lawyer to examine my affairs and then express an opinion on them that can be presented to a third party, say a government office, as independent?  Let us say that I am the only source of instructions to the lawyer; that I am solely responsible for paying the lawyer; and that the lawyer stands in a position of trust and confidence to me such that they cannot have an interest or duty that conflicts with their duty to me.  They are all typical incidents of the relationship between lawyer and client.

If you look at the definitions set out above, you will see immediately that there are difficulties, to put it softly, in my retaining a lawyer to present to a third party an opinion, however called, that is in any sense independent.  The lawyer depends on my authority, is subordinate to me (unless I want break the law), is subject to my control and rule and their opinion will be wholly contingent upon or conditioned by my instructions – and payment for services rendered.

So, when AMP and its lawyers, Clayton Utz, purported to present to a government agency, ASIC, a report or opinion of Clayton Utz that was in any way independent, they were chancing their arm, again to put it softly, but in cricket terms.  The accounts in the press of the evidence before the Royal Commission suggest that their stratagem was doomed from the inception.

AMP could at any time have stopped the retainer and the process.  The letter of instruction from the Chair of AMP asked to be notified of any ‘findings’ that mentioned members of the board or executive team.  What does this mean except ‘You are free to say what you like – unless we don’t like it’?  The wording is at best unfortunate.  Lawyers are not usually retained to give a ‘report’ or conduct an ‘investigation’.  They are certainly not there to make ‘findings’.  They give an opinion based on the instructions they receive.  Part of that opinion may relate to the findings that may be made by the court or other body that has the power to make them.

So, the problem was there from the start.  The evidence I have seen does not reveal the extent to which this firm had acted for AMP.  I gather it was substantial.  The relationship was obviously close.  The in-house counsel was a former partner of the firm.  He liaised with the partner handling the matter to get a result satisfactory to AMP.  One report says that he asked for the final say over the wording.  The Chair was also actively involved, so we know where the buck stops here.  She was also involved in protecting the name of the former CEO, who was paid $8.3 million.  Another high executive was protected.  The firm provided at least 25 drafts to the client, and the company now admits misleading ASIC on at least 25 occasions.  It is preposterous to suggest that the final document was in any sense independent.  It was an elaborate cover-up.

The law firm owed obligations of trust and confidence to the corporation.  According to its website, the firm expresses that obligation as follows.

Our key obligation:  We will perform the work with professional skill and diligence acting as your independent legal advisers.  We will act solely in your interests in any matter on which you retain us unless you ask us also to act for other parties in that matter.  We will not perform work for you if factors such as a conflict of interests prevent us from accepting your instructions.

There may be legal difficulties displacing that obligation.  But how can those obligations of loyalty or fidelity stand against an obligation to give an ‘independent report.’  At what point does the lawyer say: ‘If I carry out my retainer according to its terms, you the client will suffer damage’?   How does the law firm escape discharging that duty consistently it carrying out its key obligation?

The press reports are full of exclamations of shock.  People expressing shock are naïve.  Professional people commonly submit drafts of opinions to clients for a variety of reasons, some more pure than others.  ASIC used to do with people under investigation.  This Royal Commission will submit draft findings to targets.

What is shocking here is that a major corporate and a major law firm thought that such a crude stunt was worth a try on.  In other words, they thought that they had a better than sporting chance of convincing ASIC that what it was receiving was ‘findings made in an independent report.’  Heaven help us if AMP and its lawyers were right about that.  Is the reputation of ASIC so low in the business and legal fraternities?  Does AMP not know that the cover-up is usually worse than the original crime?

We cannot the comparison with ball tampering.  What is worse – the brazenness of the original act of cheating, or the inanity of the attempts to cover it up?

Bloopers

‘To both survive and succeed as Prime Minister in the coming months, Turnbull has to change.  If he is to lead the Liberal Party and defeat Bill Shorten and Labor at the next election, Turnbull has to develop a more political character or be prepared to take advice from those who have one.’

Dennis Shanahan, The Australian, 9 April 2018

What did we do to warrant such perpetual banality – about opinion polls, no less?

 

Industry super fund Cbus has been ordered to apologise to more than 300 of its members after the Australian Privacy Commissioner found it breached their privacy.’

Australian Financial Review, 12  April 2018

Am I alone to wonder about ordering someone to apologise?  What if they are in fact not sorry when they say they are?

Passing bull 144 – The inanity of red lines

 

King Lear is in many ways the Everest of our minds.  It is about a choleric old man who digs a hole for himself and his daughters, and then he keeps digging, until he goes mad.  As he descends into the despair of his madness, he says:

I will have such revenges on you both

That all the world shall—I will do such things—

What they are yet I know not, but they shall be

The terrors of the earth. You think I’ll weep?

No, I’ll not weep.

 

This wild ungrammatical rant sounds like someone we know, but, like so much in this play, when you watch the descent of this old man, you feel as if you are being cruel in yourself.  And there is something childlike about this dementia in the aged.  It reminds us of the story of the wolf and the three little pigs.

 

Then I’ll huff and I’ll puff and I’ll blow your house in.

 

These thoughts – or something like them – come to mind whenever I hear that dreadful phrase ‘red line’ – or its soul mate, ‘line in the sand’.  Barack Obama will I think regret until his dying day using the term ‘red line’ regarding chemical warfare in Syria.  Who will determine when the event happens, and more importantly, who will determine what the consequences should be?  The policy of President Obama toward the problem of Syria, and other problems in the region, was otherwise so sane.  The U S should not intervene unless it knows just when and how it will be able to get out.  The recent interventions by the West in Syria do not satisfy that simple criterion, and on that ground alone, I would not support them.

 

Donald Trump, who is as stupid as he is nasty, compounded the problem with a tweet that included a phrase that has even more notorious baggage in this region – ‘Mission Accomplished.’  God save us all.

Since we are speaking of inane language, it is not surprising that Donald Trump comes to mind immediately.  We are reminded of children in the shelter shed at school making up the rules of the game as they go; or of Australian cricketers drawing the line about sledging; or the board of Cricket Australia drawing the line about another inane phrase – ‘being held accountable.’

Well, at least Trump had the courtesy to count, very loudly, to one hundred before he said ‘Coming ready or not.’

Bloopers

Half of all gun owners say that ownership is essential to their identity.  Fear is a factor: nearly half of male gun-owners say that they have a loaded gun ‘easily accessible to them at all times at home’.  According to the Pew study, ‘There is a significant link between owning a gun for protection and perceptions of whether the world broadly speaking has become more dangerous.’

The New Yorker, 12 March, 2018.

Who would want to live in the United States, the land of fear?  Do gun owners have something in common with some Harley owners – is it all about their willies?  Is their world more dangerous because there are so many guns?

 

A tweet from Tony Abbott.  ‘More unsubstantiated bile from @vanOnselenP.  If my office was so hopeless why is my former deputy COS now director of the Liberal Party and why does my former COS rate more highly than PVO ever did?’

The Guardian Australia 7 April 2018

Does that remind you of anyone?  Apart from the obsession with TV and ratings, there is the suggestion that being a director of a political party in some way gives a person standing.

Passing Bull 143 – Contradictions in terms

 

A group of people purporting to be members of our governing parties are acting so as to raise doubts about their sanity or good will – or both.  They were consistently, manifestly, and unrepentantly wrong about climate change.  Now they seek to perpetuate their error, and the consequent harm to the nation, on the issue of energy.  They have formed a group called the Monash Forum.  It is, I gather, what used to be called a ‘ginger group’.  They want a new coal-fired power station run by the government, and, if necessary, paid for by you and me.  It is not surprising that the Monash family are not amused.

The labels ‘conservative’ and ‘populist’ are at best fluid.  So is the term ‘socialist.’  You don’t meet too many of them any more.  For most people, it is a term of abuse.  Most Australians would not regard their federal government as socialist, but most Republicans in America may find it hard to duck applying that label to us.  But however watery the term ‘socialist’ is, it is hard to disagree with Paul Kelly in The Australian when he says:

The idea that drives the latest core conservative revolt — a new coal-fired power station run by the government, if needed — is delusional and flawed at every point. It fails on policy, politics and consumer grounds. The conservatives are becoming coal power socialists. They are losing the plot.

You might imagine a conservative Socialist, but not a socialist Conservative.  (The choice of case is deliberate.)  It is just that contradiction in terms that raises doubts about the sanity or bona fides of these agitators or activists – to invoke other label used to put their objects down.  And it is not as if these activists didn’t have form.

But in analysing this irrational behaviour, Mr Kelly says:

Given Tony Abbott and Barnaby Joyce as spear carriers, this push is guaranteed to ignite populist conservatives and their media champions across the nation.  The drums will be beating — but many backbenchers have refused to sign.

‘Populist conservative’ is to my mind another contradiction in terms.  People who seek to seduce the gullible are not trying to conserve what is best in our community.  Disraeli and Churchill made a fair fist of a kind of populism, but they were freaks in another era and in another hemisphere.  The nightmare that is called Donald Trump shows how nauseating the cocktail is when you mix conservative and populist.  That is why in my view the media champions that Mr Kelly refers to engage in deception when they call themselves, with unblushing pride, ‘conservatives’.  They’re not and their behaviour is not more attractive because they do it for money.  (The politicians so engaged do it for another well-known evil – faction.)

There is another protean term that Mr Kelly invokes – ‘progressive’.  Well, they must think that all their Christmases have come at once.  Seeking public money for a venture in coal that the banks won’t touch would be an unbeatable way to qualify as the antithesis of ‘progressive.’  It’s not surprising, then, that Mr Kelly concludes his piece this way:

The government seems caught in conflicting emotions. Is it trying to destroy Turnbull’s leadership without having any successor in mind? Is it determined to ignite a new internal brawl over energy policy without having a viable alternative option? Has it given up on the election in pursuit of domestic battles it intends to wage in opposition?

For me it recalls the words of Stephen Sondheim in one of the most beautiful songs ever sung:

Isn’t it rich? Are we a pair?

Me here, at last, on the ground

You in mid-air

Send in the clowns

Isn’t it bliss? Don’t you approve?

One who keeps tearing around

One who can’t move

Where are the clowns?

Send in the clowns

Just when I’d stopped opening doors

Finally knowing the one that I wanted was yours

Making my entrance again with my usual flair

Sure of my lines

No one is there

Don’t you love farce?

My fault, I fear

I thought that you’d want what I want

Sorry, my dear

But where are the clowns?

There ought to be clowns

Quick, send in the clowns

What a surprise!

Who could foresee?

I’d come to feel about you

What you felt about me

Why only now, when I see

That you’ve drifted away?

What a surprise

What a cliché

Isn’t it rich?

Isn’t it queer?

Losing my timing this late in my career

And where are the clowns?

Quick, send in the clowns

Don’t bother They’re here.

Passing Bull 142 – Gilding the lily

 

A registered psychologist cast doubt on the qualifications of people behind an outfit called Creative Mind that had been engaged to conduct a pre-season taring camp for the Adelaide Football Club.  The event was controversial.  (But not as controversial as Melbourne’s – they cancelled theirs.)  The camp was modestly called ‘Mankind Project.’  On the website www.the soulspace.com.au, the qualifications of the principal of Creative Mind were described as:

Amon is trained in a range of coaching, assessment and training approaches, including Vertical Mindset Assessment and Coaching, Power Stage Assessment and Coaching, and more.  He integrates those coaching approaches with extensive experience in the leadership field, and through a long-time involvement with the national masculinity and men’s work community.

You might wonder if Amon has anything against national femininity or Horizontal Mindset Assessment and Coaching.  In a statement to The Age, Amon said:

Our organisation specialises in performance training, focusing on leadership [mindset] and team performance.

Personally, I’m a coach, facilitator and trainer who has a background in leadership and culture in large organisations and I am certified in coaching a range of assessment tools and diagnostics for leaders and teams.  I also hold a Master of Business from the University of Queensland.

Could it be that the word Amon was searching for was quack?  Amon sounds like the kind of dude Donald Trump would appoint to run Veterans’ Affairs or bring peace to the Middle East – more bullshit than you can point a stick at.  If I were a Crows supporter, I would be minded to inquire how much Amon trousered for the Mankind Project.  I wonder if the Crows think Mankind is better off for the Project.

Bloopers

‘Networking drinks 4.30pm to 6pm.’

Advertisement for global food forum.

The Australian, 22 March 2018

Can you get a drink even if you are not into networking?  We’re going bad when people who get together to talk about food need an excuse for a drink.

 

‘Russia’s behaviour continues to trouble us and we are continuing to push back in meaningful ways,’ a senior national security official said.

The Guardian, 16 March, 2018

On the eve of the Crimean War, the Launceston morning paper began its editorial ‘This newspaper warns the Tsar of Russia.’

Passing Bull 141 – A sole billboard outside Trinity

 

Am I the only old boy of another school to wonder about the sanity of Trinity Old Boys?  As I follow it, they think that a staff sacking was too harsh. Their remedy is to sack one or more of those responsible. It’s like the French Revolution – has anyone seen the ghost of Robespierre at the podium?  Is it possible to imagine a worse form of publicity for any school?   Do they not realise that any publicity for a school that is seen as – in that ghastly word – elite, is bad publicity?

Now, some well-heeled clown has put up a billboard.  ‘It’s time to go.  Our school community is far too progressive and inclusive for your 18th century values.’  Mate – ‘progressive’ and ‘inclusive’ are terms of abuse in some circles.  I had thought that such abuse was bullshit.  Now I wonder.  The Trinity Old Boys seem intent on murdering sense as well as the English language.

The herd mentality is rarely attractive, and it is never pleasant when it is as mean as this.  If they do get their man, his replacement will be looking at a cup as full of poison as any seen since the Crusades.

Bloopers

I propose to add some citations from the press that seem to me to be a symptom of our time.  I would be more than happy to receive suggestions.  I will start with one that will be harder to beat than Lewis Hamilton in today’s Grand Prix in Melbourne.

‘It makes sense for Australians to treat the President as he is.  Trump is clever and cunning.  He does not read much but he is highly intelligent.’

Gerard Henderson, The Weekend Australian 17-18 March 2018

Here is a party or pub game.  State the facts to justify the claim that Donald Trump is highly intelligent.  Here is one suggestion:

As when he instructed his lawyers to claim $20 million from a porn star for breaching an agreement to which he was not a party, and for which he gave no consideration, and for referring to something that did not happen.

Could Einstein have topped that?

Passing Bull 140 – Bull about reform

 

The word ‘reform’ is loaded, and not just in the political context.  The Oxford English Dictionary says ‘To amend or improve (an arrangement, state of things, institution, etc.) by removal of faults or abuses.’  The word ‘amend’ has to be read with ‘by removal of faults or abuses’, and the ‘removal of faults’ must be read to include ‘rectifying omissions.’

So, there are two things involved – change, and improvement.  There is rarely doubt about the fact of change, but there is often argument about whether the change is for the better.  One of the most significant legislative reforms came in England with the passing of the Reform Act, 1832.  We now know that this reform paved the way for democracy, which was unthinkable then, and we believe that if the opposition to it had prevailed, there may well have been a revolution.

There is I think a general agreement now that changes to the law introduced by the Hawke and Keating governments relating to taxation, currency, and superannuation effected real improvements, and were therefore real reforms.  But it is not easy to think of many other reforms in our recent history.

We have just seen another example.  The federal opposition just announced a proposal to change part of the law dealing with double taxation of dividends in the hands of shareholders.  The relevant law formed part of the reforms of Mr Keating.  The proposed changes just announced can obviously be rationally defended as being required to make the law work better.  That would mean that the change would amount to a reform – and Mr Keating was reported to have said that it was.  But you could just count the minutes before a political hack used the term ‘tax grab’, usually with the epithet ‘brutal’, and wheel out a worthy couple of retirees who have structured their life savings on the faith that government will not then change the rules to make them worse off – the phrase is ‘shift the goalposts.’  For these people the proposed change is for the worse, and not for the better.  It is anything but a reform.  And they have a point.  They have invested in good faith relying on representations from both parties that government will respect their investments and leave them alone.  Taking away an ‘entitlement’ is far more threatening than offering a chance of another.

We see this problem all the time.  One example is tuition fees for university students.  These fees were put up as reforms – but not for the student being saddled with $100,000 debt – for fees imposed by politicians most of whose graduate members had not had to pay a cracker.

The Reformation at least began about reform.  In his History of the Reformation in Germany, Leopold von Ranke said:

No man, to whatever confession he may belong, can deny, what was admitted even by the most zealous Catholics of that day; viz. that the Latin church stood in need of reform.  Its thorough worldliness, and the ever-increasing rigidity and unintelligible formalism of its dogma and observances, rendered this necessary in a religious view; while the interference of the papal court, which was not only oppressive in a pecuniary sense, by consuming all the surplus revenue, but destructive of the unity and independence of the nation, made it not less essential to the national interest.

But while reform was essential, a schism, or split, was not.  Ranke said:

Public order rests on two foundations – first, the stability of the governing body; secondly, the consent and accordance of public opinion with the established government…..But when the constituted powers doubt, vacillate and conflict with one another, whilst at the same moment, opinions essentially hostile to the existing order of things become predominant, then, indeed, is the peril imminent.

That proposition is pregnant for our time, and we will come back to it.  But what happens when the reform movement hits full swing?

…..it is not in human nature to rest content with a moderate success; it is vain to expect reason from a conquering multitude….for the most part they were goaded by long-cherished hatred and lust for revenge, which now found vent.

We see that all the time. Some see a bit of it now in the #MeToo movement.  The Germans’ political dam threatened to burst.

It was now taught that as all were children of one father, and all equally redeemed by the blood of Christ, there should be no longer inequality of wealth or station.

Well, that was at least three centuries ahead of its time (although we may be due for another explosion about inequality.)  That was the way of the Peasants’ War, and a dint in the democratic glow of Martin Luther.

There were also consequences that were not foreseen.

By rejecting celibacy, they [the clergy] secured a new influence over the mind of the nation.  The body of married clergy became a nursery for the learned professions and civil offices; the centre of a cultivated middle class…..In the year 1750, Justus Möser reckoned that from ten to fifteen millions of human beings in all countries and regions of the globe owed their existence to Luther, and to his example, and adds, ‘A statue ought to be erected to him as the preserver of the species.’

That’s a diverting proposition, but if Ranke is right about ‘the centre of a cultivated middle class’ in Reformation areas – such as Germany, Holland and England – that may go some way to explain the difference in political maturity between the nations of northern Europe and southern Europe.

But to return to what Ranke said about the breakdown of public order, it finds a curious echo in in the Bagehot column of last week’s Economist.

The biggest threat to British institutions, however, comes from a growing sense that democracy has let people down.  Stephen Holmes of New York university points out that liberal democracy is ‘a time-tested system for managing political disappointment’ – once you’ve lost patience with the existing elite you can vote them out.  But disappointment is surging, at a time when democracy’s ability to manage disappointment is declining…..The proportion of Britons who support a ‘strongman leader’ has increased from 25% in 1999 to 50%.  The under-25s are much more critical than people of the same age were two decades ago.  It is too early to head for the exits….But anyone who doesn’t know where the exits are is a fool.

If you believe that a decent ‘strongman leader’ is a contradiction in terms – and we are daily given countless repellent examples – then this trend is very scary.  We may in truth need major reform.

Passing Bull 139 – Madness in the commentariat elite about conservatism

 

I am sorry to harp on the love of labels and abstractions at The Weekend Australian, but last weekend it reached tsunami proportions.  I apologise in advance for the length of this note, but I do see more than bullshit at work here.

Paul Kelly sees the crisis of conservatism as ‘a moral crisis.’  While Mr Kelly does not say what he means by ‘conservatism’, it is not hard to see the crisis as ‘moral’ – at base, all political issues involve moral questions – unless you subscribe to the view that winning means everything.

But then you look at what Mr Kelly says that ‘conservatives’ demand from Turnbull – ‘quitting the Paris accords, pitting coal against renewables, ditching Gonski funding, revisiting the National Disability Insurance Scheme and achieving small government with a new round of spending cuts.’  Then you are even more at sea about what a ‘conservative’ may believe – except, as Mr Kelly says, ‘a package for guaranteed electoral suicide.’  It’s little wonder then that Mr Kelly concludes that ‘the political contest over morality is pivotal and the conservatives mainly lose it.’

But Mr Kelly’s infatuation with –isms finds another demon.

The issue for conservatism has been its paralysis before its gobsmacking individual expressionism and its violation of Christian views of human nature.

The last phrase looks over the top – are we not supposed to be a secular community? – but what on earth is wrong with individuals wishing to express themselves.  Isn’t that what ‘conservatism’ is about?  ‘Thank you, Government, but no – leave me alone to look after myself.’  And Mr Kelly refers to a writer who gives a horrifying indication of what happens when the individual surrenders to the herd.  The highest rating TV show of the 1950’s, I Love Lucy, had a 67.3 Nielsen rating.  Can you imagine a worse indictment on the intellectual life of a nation?  In 2014, the highest rated show Saturday Night Football maxed out at 14.8 rating.  Is not that the best news you have heard from the U S in ages?

Finally, Mr Kelly says that ‘the problem with Turnbull is that he remains a transactional rather than conviction politician.’  There are two labels in play here.  What is a conviction politician?  If it is politician who is in some way ideologically driven, then they have to confront an aversion that is not just Australian, but Anglo-Saxon.  We have produced Gough Whitlam and Paul Keating.  The UK produced Mrs Thatcher.  Any other takers?  One thing is sure.  Mr Trump is not a conviction politician.  He has no convictions at all.

What then is a transactional politician?  When applied to people like Trump or Shorten, it is one of disfavour.  Buy why?  Is not the ultimate platitude that politics involves the art of compromise?  The Turnbull government in my view has transacted good business on trade with our Pacific neighbours, and looks to be navigating the turbulence of Trump.  That, for me at least, is good politics, not bad politics.

But Grace Collier tells us the truth about what she and her colleagues think of a ‘transactional politician.’

It is true that Shorten is often described as ‘transactional’.  Further, this term is one you always hear when people are trying to account for his seeming lack of core values and belief systems, friendships with the super wealthy and other inexplicable contradictions…..The word transactional and really seems to me just a polite way of saying someone is an untrustworthy shyster who would sell his grandmother to the highest bidder.

Well, sadly, that’s not far off how many Australians see most politicians.  But, if you haven’t guessed the politics of Ms Collier yet, she is keen to disabuse you.

Most people think that the purpose of the union movement is to look after working people, in workplaces.  That is a naïve assumption and wrong.  The purpose of the union movement is to put union officials into parliament.

Well, there it is – and perhaps not surprising from a journalist who sees a friendship between the leader of the ALP and some of our very rich people as involving an ‘inexplicable contradiction.’  Why?  Has the man got uppity and got ideas above his station?  Is Ms Collier’s commitment to the tribe so commanding?  God help us, has she succumbed to ‘identity politics’?

Noel Pearson has a piece on how conservatism has been hijacked by reactionaries.  He makes the obvious point that people are never exclusively conservative, liberal or socialist – unless you melt those terms down to nothing.  So much of our discussion is flawed by the fallacy that you have to be one thing or the other.

Mr Pearson makes an observation that is so true for most of Team Oz:

so-called conservatives, while railing against the victimhood of the leftish tribes, are themselves pushing their own victimhood.

He says that Keith Windschuttle, Gary Johns, Andrew Bolt and so many more ‘started in the left,’ but after a Damascene conversion wound up ‘more extreme in their views than their new associates.’  Mr Pearson subscribes to the view that Mr Bolt just ‘found a business model.’  Mr Bolt, then, is no conviction commentator.

Mr Pearson then gets into his stride.  ‘The Centre for Western Civilisation is the apotheosis of this reverse identity politics….Conservative English philosopher Roger Scruton in his 2012 book Green Philosophy argued that conservatives should properly be conservationists.’  How could they be otherwise?  How could anyone in our political tradition prefer theory to evidence, ideology to facts, or dreams to sense and reality?  And Mr Pearson gets something else right.

Howard deferred major crises of conservatism, such as same-sex marriage and religious freedom, climate change and energy security, rather than resolving them.

Chris Kenny riffs, as is his wont, by pushing his own victimhood, to use the term of Mr Pearson.

Bring back the Barnaby story.  Half of what passes for national debate is almost as inconsequential….It can’t only be me who simultaneously feels overgoverned and ungoverned…..If voters want environmental gestures, nanny state laws and never-ending government interventions, they can vote for the past masters – Labor – so why vote for the cheap imitations?  ….Perhaps Labor did them [Tassie Liberals] a huge favour by proposing a radical poker machine ban they could never accept, thereby forcing them into a strong position of differentiation…But in my view the warning signs are flashing for Liberals across the country.  In a haze of opinion polls, social media, and superficial spin-driven politicking, they have forgotten their mission.

Will Mr Kenny never see that he is one of the main creators of the ‘haze…..and superficial spin-driven politicking’?  What else has he ever done in life?  We can come back to banning poker-machines, but do we not see here Mr Kenny condemning politicians for being naïve in making a moral stand on a matter of conviction?

Speaking of the haze of opinion polls, Dennis Shanahan is obsessed by them.  He is also obsessed with the ‘regicide’ of his mate, Tony Abbott.  If his piece had any other point, I missed it.

Greg Sheridan wrestles with the moral dilemma of Trump and conservatism.  It is or ought to be common ground that Mr Trump is a liar, a fraud, a coward, a fool, a lout, and a man so deeply in love with himself that the word ‘shameless’ is hardly enough.

Trump is in many ways a very unsatisfactory president.  But the crisis in Western governance is morphing into a crisis of Western civilisation.

What could that mean?  Well, at least Mr Sheridan believes that imposing tariffs is a bad idea – as does Judith Sloan – but why does he feel the need to justify the man and put blame on the ‘exaggerated and hysterical reaction’ of the rest of us?

John Durie has an interesting piece on Mr Andrew Mackenzie, the CEO of BHP.  Mr Mackenzie (or Dr Mackenzie) studied geology at St Andrew’s University, took a PhD in organic chemistry at the University of Bristol, and was awarded a Humboldt Research Fellowship at the Julich nuclear research centre in Germany.  He is a member of the Royal Society.  (The members of the Royal Society don’t elect idiots.)  Not bad for a corporate CEO.  Far, far better credentials than mine.

But Terry McCrann in his piece sees Mr Mackenzie as part of the ‘commentariat elites’ and an idiot.  Since Mr Mackenzie says ‘we don’t hide from the global challenge of climate change’, the rest of the commentariat elite at that paper would also think he’s an idiot.  As would all others who falsely call themselves ‘conservatives’ while refusing to act to conserve the earth that we live on.

Leaving the best to last, what does the good Christian Gerard Henderson say about the moral issue of middle class recreational facilities living off the earnings of gaming?

The comments from the likes of White, O’Connor and Brown [people who said the Liberals were ‘a bought government’] are imbued with elitism…..the absence of poker machines and the customers they attract would have put financial pressure on hotels and clubs throughout the state….Whatever the damage caused by the small number of problem gamblers, hotels and clubs give a vibrancy to local life for many citizens.

It’s true the Federal Group campaigned to retain its poker machines in hotels and clubs throughout Tasmania.  That’s what the management of a legal business is expected to do.  Yet Labor and the Greens are delusional if they hold the view that the Federal Group ‘bought’ the Liberal Party.

Well, there you are.  We have so far been looking at bullshit.  Now we have more bullshit, and with it, a searing hypocrisy.  Bugger morality – just look at the politics.  Had the moral question been answered against the government, some businesses would have felt ‘financial pressure.’  Since those businesses were prepared to give a lot of money to the government to avoid that pressure, the moral issue would just be ignored.  I was, apparently, wrong to say that all political questions resolve into moral issues – although I did say there was an exception for those who believe that winning is everything.

That’s apparently the view of Mr Henderson.  I find it impossible to believe that that view could even have been contemplated by the holy man who preached the Sermon on the Mount and who issued his own death warrant by taking to money dealers with the lash.

If people at the Australian really want to know why newspapers and politicians are so on the nose, just look at those comments of Mr Henderson.  They also indicate why his church is sinking before our eyes.  The whole mess is terribly sad.  I had thought that Mr Henderson was harmless.  I now think that I was wrong in that.

In fairness to the faith I have lost, I may say that a good friend of mine who subscribes to that faith – if it matters, as a member of the cloth – was appalled by the comments of Mr Henderson.  As I recall it, when the golf club in his town said they would shut down without pokies, my friend asked why shouldn’t they?  I think that’s a real question – but not for Mr Henderson.  If people cannot maintain a recreational facility without relying on income from a business that inevitably causes harm to other people, why should the rest of us allow it?  Are we not complicit in their living off the earnings of wrongdoing?

What is clear is that there is a lot of bullshit involved if people want to talk about morals, convictions and transactions when looking at poker machines in Tasmania.  The Liberals knew a transaction when they saw it – you piss in my pocket and I will allow you to pick the pockets of others – to hell with conviction or morals.  As squalor goes, this is hard to beat; and when God gets invoked, it becomes unbeatably squalid.

Passing Bull 138 – The sex ban

 

The reaction to the Prime Minister’s sex ban was curious.  Many of the people who attacked the PM on this issue are the same people who complain that he never does anything.  They wheel out that weasel word ‘leadership’.  To my surprise and relief, Mr Greg Sheridan supported the ban in The Australian.  In response, I wrote a letter to the editor, which was published, as follows.

In something of a change for me, I am happy to support Mr Sheridan in what he says about the sex ban.  It is about abuse of power, not sex.  As I read the piece, I recalled a discussion I had with a neighbour that we knew as Old Jack.  Old Jack had flown 47 missions in Mosquitoes.  We discussed my namesake, Guy Gibson – Wing Commander Guy Gibson, VC, the leader of the Dambusters.  War heroes don’t get more sacred than Gibson.  But Old Jack said that many in Bomber Command doubted Gibson.  Why?  He went out with women of lesser rank.  What’s wrong with that?  Mr Sheridan states the obvious.  You can see it in large law firms; in the hierarchy of the churches; and worst of all in any uniformed service.  And that’s before you get to the Caesar’s wife point about Ministers of the Crown.

It was business as usual the next day.  I often find it hard to follow what Janet Albrechtsen and John Roskam are saying.  Neither liked the ban, but I have trouble seeing why.  Ms Albrechtsen said the ban was ‘patronising’ and ‘illiberal’.

It’s not surprising that the socially fashionable Turnbull would tack so close to the #Me Too movement, but his clunky, gender-driven over-reaction, like much within the #Me Too movement, is paternalism writ large.

Yet, before she resorted to the scattergun of labels, Ms Albrechtsen indicated that she understood at least part of the issue.

It’s not sex between consenting adults, even between a minister and staffer, that matters.  It’s a boss’s preferment of a staffer, arranging new highly paid jobs that matters.  Had Turnbull stepped up earlier, telling voters that such preferment and conflicts will not be tolerated, he would have done a fine and measured job.

Most laws, and all prohibitions, restrict freedom, and are therefore ‘illiberal.’  One such law is the law of murder.  Your freedom to fire a gun is restricted if the head of your estranged spouse is at the other end of the gun.  All gun laws are illiberal.  To object to them on that ground would plant you firmly in the moral and intellectual wilderness of Second Amendment America.   To object to any law on the footing that it restricts freedom is to invoke something close to a tautology.  It’s a little like saying that the police shouldn’t charge a person because that person will be defamed by the process.

Well, is the law patronising?  Does it assume that people may need protection when they might be better off if left to stand on their own two feet?

Now, this gets closer to the issue, but people should understand how much of our law is dedicated to protecting the weak against the strong – or, to put it differently, how much of our law is about restraining abuse of power or acting in bad faith.

Those who think that the law has nothing to do with morals are dead wrong.  If we put to one side infants, lunatics, and consumers, there are many areas of the law that are concerned with relief from oppression or bad faith.  A large part of our constitutional and administrative law is there to prevent government becoming overbearing on us.  The transactions of people in business are at risk if their conduct has been ‘misleading’, ‘deceptive’, or ‘unconscionable’.  A dispute among shareholders may be resolved by reference to what is ‘just and equitable.’  Majority shareholders may be restrained from conduct that is ‘oppressive.’  Directors and other employees have to act ‘honestly’ and ‘for a proper purpose.’  Large companies may be restrained from conduct that is ‘predatory.’  The laws of most Western countries provide that a corporation that has a substantial degree of power in a market must not take advantage of that power for the purpose of substantially damaging competition.  A dependant with a ‘moral claim’ on a testator may ask the court to make an ‘adequate’ and ‘proper’ provision for them.  Reports in the Fairfax press suggest that the laws of franchising need to change to give more protection to the franchisee – too many franchisors have the insouciant brutality of Caligula.

Those are statutory extensions of case law on the duties owed by people in positions of trust and confidence.  This is part of the law known as equity.  It goes back many centuries.  Here is how the basic premise was expressed in an old text.

If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition.  If influence is acquired, it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains…..The general principle, which governs in all cases of this sort, is that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief.

One way the law goes about enforcing these obligations is to ban the person in a position of trust from entering into relations that will put them in conflict in carrying out their trust.  This is what is called a ‘fiduciary’ duty.  It is very hard for a company director to retain a profit that he has earned as a result of carrying out his director’s duties.  Partners and staff of a business owe these fiduciary duties to their firm.  A sexual liaison between a partner and a member of staff may involve each in a conflict of duty and interest.  That being so, it is not silly to suggest that such a liaison may be unlawful under the general law as it stands.

A related part of the law deals with people who can influence others unconscionably as the result of an imbalance of power.  This is the law about ‘undue influence.’  Sir Owen Dixon said:

But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected.

On policy grounds, that statement may apply to a Minister of the Crown propositioning a member of his staff.  It just depends on your point of view.

It is very hard for a lawyer to uphold a substantial gift from a client or for a priest to uphold a gift from a dying penitent.  The rationale of the law may be stated as follows:

By constructive frauds are meant such acts or contracts as , although not originating in any actual evil design, or contrivance to perpetrate a positive fraud….are yet by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law….the doctrines ….will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice, after a wrong has been committed.

Almost every word of that could be applied to the case of Mr Joyce and the reaction of the government.  Mr Joyce did not set out to do something wrong, but the tendency of his actions has been to violate public or private confidences and injure the public interest.  That in turn led the government to take preventive action to reduce the risk of this tendency to lead to this kind of harm in the future.

Our law has always been zealous to protect beneficiaries from their trustees.  It has been zealous not only in examining benefits obtained by those people we call fiduciaries – it has said that some kinds of transaction are so inherently dangerous, that it will not inquire into the merits of particular transactions – it will just ban them.

That is the course that the government has adopted in dealing with fiduciary obligations of public officers called ministers – at least when it comes to having sex with those who are under them and whom they are obliged to protect.  Barnaby Joyce entered into a relationship that could and did conflict with his public duties.  This was a clear breach of fiduciary duty – as Ms Albrechtsen may acknowledge.  The temptation was there for Mr Joyce to misuse his office, and persuade others to do the same, in order to favour his mistress.  It’s hardly surprising then that the government has followed one path of the law by deciding to ban certain transactions outright for those who owe fiduciary duties.

So our jurisprudence may have approached the Joyce Case through a few avenues, but it is a little hard to see what Paul Kelly makes of it.

Turnbull’s ban on ministers having sexual relations with their staff formalises what should be the case anyway…..It is one thing for Turnbull to justifiably take a stand and say ministers cannot have sex with their own staff.

That seems clear enough, but beware – Turnbull is a ‘declared progressive’ and so we then get this.

This is a progressive, not a conservative, movement.  It means libertarianism is being sacrificed to identity justice, a process catching many people out.  It assumes people cannot be allowed to pursue relationships freely because of the risk of exploitation on the basis of power or gender.  The progressive quest is for new rules and regulations to govern human relations.

This is not just about halting sexual abuse or harassment, an essential goal.  The progressive vanguard has moved far beyond this- it is now focused on power and argues that consensual sexual relations based on a power imbalance are suspect on grounds of exploitation.  Just think about that crazy idea.

You get a box of Jaffas and a smiley koala stamp if you can reconcile those statements.  This is labelling gone mad.  As I have tried to show, it has been the business of the law to rule on ‘relations based on a power imbalance’ as being ‘suspect on grounds of exploitation’ since the time when the Puritans ran England.  Having learned what we have in the last few years about relations in the churches suspect on these grounds, it is sad to see uncertainty and confusion in how we should now react.

And that’s before we get to the point that Ministers of the Crown hold positions of public trust and that there were issues of the use of public money involved in the Joyce Case.  Rarely does a day go by when the Murdoch press does not excoriate the ABC over its use of public money, but when it comes to obvious failings of a politician deemed to be a ‘conservative’ vote winner, they change their tune.

But perhaps it is not surprising that the Murdoch people get skittish about issues of integrity and their conservative political clients.  They oppose an integrity commission for the federal politicians – a move that is as sought after in the community at large as the sex ban that was imposed in light of the Joyce Case.

Passing bull 138 – Family values

 

What on earth are they?  One test of the worth of a proposition is whether anyone could be bothered to assert the contrary.  If I said ‘I believe in family values’, you might respond by asking the question I began with.  Or you might say ‘Who bloody well wouldn’t?’  Either way, the conversation is hardly illuminating.  In ordinary parlance, we are dealing in motherhood statements.

Yet, in the controversy about Barnaby Joyce, the former Deputy Prime Minister, many in the press said that part of his problem in answering allegations of hypocrisy was that the man with a wife and four children was having an affair with a woman while at the same time leading a party that subscribes to ‘family values’. 

Don’t the Liberal, Labor, and Greens parties have the same values?  Of course they do, and it is idle to suggest that you might find a difference in their platforms founded on a difference in their attitude to the family.  Insofar as anyone suggested that marriage equality might be a threat to ‘family values’, they would be begging a booklist of tendentious questions.

You might be reminded of that other shocker, ‘Australian values.’  Every time I hear that term, I immediately think of Senator McCarthy and the House of Un-American Affairs Committee – and we don’t want to go down there. 

The term certainly invites twisted history.  It’s downright sad to see Australians trying to find ‘mateship’ in the wasted slaughterhouse called Gallipoli.  The Turks, English and French all lost more men at Gallipoli than Australia did.  Didn’t they have mates?  The whole notion is at once precious and insulting. 

If I were asked to take a stab at an ‘Australian value’, I might suggest that we might be less class conscious than say the English, Americans, or French.  But I couldn’t verify that suggestion, and our claim to be egalitarian has taken a hit over the last generation, with bank managers taking home 100 times the money they pay their tellers.  And people like Henry Lawson and Paul Keating see too many people around here who are keen to tug the forelock, and who don’t think that we can be trusted to appoint our own head of state.

So, Australian values are as much use – in language – as family values.

And while we speak of the National Party, let’s reflect on another vapid buzz phrase – ‘identity politics.’  According to Wikipedia:

Identity politics, also called identitarian politics, refers to political positions based on the interests and perspectives of social groups with which people identify. Identity politics includes the ways in which people’s politics are shaped by aspects of their identity through loosely correlated social organizations.

Can you imagine a more dedicated set of exponents of identity politics than the National Party?  The teams at the Murdoch Press and the IPA may be faced with what they like to call an existential crisis when they reflect that all Coalition governments – and they can support no other – are premised on identity politics.  Dear, dear, dear, dear.

And while on buzz words, watch ‘virtue signalling’ take off.  The usual suspects go after labels with the same glee that little boys go after marbles or yo-yos.