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?

Here and there – How taxing it is

Part II

[This is the second part of a piece on the current debate on refunding tax credits.]

Secondly, the relevant law has been in place since 2000.  Very many people have conducted their affairs on the footing of that law.  As I said, this law is no mere wheeze.  I should here disclose that you are now talking to a paradigm case of a target of the proposed change.  My superfund is invested entirely in public companies that issue fully franked dividends.  No other course even comes close for my purposes – I see cash as pure waste.  I believe that my fund will support me, but if the income of the fund is reduced by 30 per cent as a result of this proposal, I will have to look seriously at the alternatives.

There is a well-established principle of our general law that if one party to an arrangement makes a representation that the other party relies on to their detriment, then the law will restrain the party making the representation from resiling from it.  Although I am prejudiced, that law seems to me to meet my case – and doubtless that of many thousands of others who have arranged their affairs in good faith in reliance upon the good faith of government.

We cannot preclude parliament from changing the law, but we can seek to hold politicians to their promises.  When the present government sought to legislate against retired fundholders about two years ago, I was struck by the vehemence of the opposition that came from members of the government’s own party.  Lawyers I respect said that the proposed legislation was retrospective.  I have some difficulty with that as a matter of law – but I have far less difficulty in envisioning some people feeling betrayed.  People were expressly invited to conduct their affairs on the ground chosen by government and now, in the middle of the game so to speak, the government wants to change the rules.  That is not fair – and as between parties subject to the general law, it would not be allowed.

Thirdly, the relevant law is horribly complex and looked at by most people, including most lawyers, with a blend of disgust and horror.  Whatever else may be said about the proposal, it will not ‘reform’ the law in the sense of making it better or clearer.  It will add another complication and inducement to people to get advice on how to beat it.  Those who clip the ticket – there are far too many of them – will be thrilled to bits.  The suspicion of government, and the system, will get worse – particularly if the proponents say that they are targeting the wealthy, or, worse, those who don’t vote for them anyway.  (That way lies the vice of Donald Trump.)  No one wants to see superannuation, something this country has done well, as what Alan Kohler calls ‘an object of political contest’ – or, put bluntly, a till to be tickled.  People who have worked hard and paid their taxes, and then followed the government’s advice and request to look after their own retirement, so relieving ongoing taxpayers, will justifiably resent and react to a government that seeks to go back on its word.  It’s no comfort to be told that a different party is in government – that’s like a company saying it can walk away from a contract because there is a new board of management.

My conclusion – which I agree is biased – is that although the proposal is justifiable on the theory of the original reform, it is at best unfortunate that its burden falls on the those who currently receive less income, and it is downright wrong unless the government moves to exempt or protect those who for about a generation have planned their retirement on the footing that the government of the Commonwealth of Australia can be trusted to keep its word.

We do, after all, have a long history of suspicion about tax and our parliaments.  In the book referred to I said:

In 1799, England was at war with revolutionary France.  France was then led by Napoleon Bonaparte, a man of military genius and unlimited ambition – and on the first count alone, he was a much more dangerous threat to England than Adolf Hitler would be.  The war was ruinously expensive.  How was the British government to fund it? 

William Pitt had become Prime Minister at the age of twenty four.  He was a leader of great authority, but the English parliament had been feisty about tax from its inception.  The national touchiness on revenue goes back at least as far as Magna Carta of 1215.  The American colonists had revolted over taxation – in the form of the Stamps Act – less than a quarter of a century ago.  (Ironically, France went bankrupt helping the Americans against their old enemy England and this bankruptcy had led to the Revolution and to the ascension of Bonaparte.  This could be the ultimate historical example of the cost of living beyond your means.)

Then the Prime Minister made a shocking proposal that was understandably denounced as ‘inquisitorial’.  He proposed a tax on incomes!  In the name of heaven, was no property to be sacred?  Well, it was just an emergency war-time measure.  It had to be – it was assessed at the demonic and confiscatory rate of two shillings (now, ten pence) in the pound (10%)! 

England went on to win the war – but not until Waterloo in 1815.  (Had England not won, we might be having this conversation in French.)  And some historians think that the victory of England owed more to revenue than naval or military successes.  But income tax reappeared, and has stayed, and it will be with us forever.  The only real change is that the law is more than ten times as long.  And it all started with an interim, emergency wartime measure.

Here and there – How taxing it is

[This is very long and difficult in parts, but there are many conflicting views out there, and it is hard to find a logical account of the relevant law and the proposed changes to it.]

Part I

If I shine shoes for a living – that is to say, for money – the law says that the income I derive will be taxed.  The tax is called income tax.  If I pay someone to do the shoe shining, or a buy a shoe shining business, the law says that any profit I derive will be subject to income tax.  The people that I pay to shine the shoes will have to pay income tax.  What I pay them is part of the cost of the business.  But the profit of the business is subject to one tax only.  I am the only person getting the benefit of the profit, and I am the only person who pays tax on the profit.

But the position is different if instead of my employing people in my business, I incorporate the business – that is to say, if I form a company to conduct the business.  The position is different because the law imposes income tax on the company for any profit that it makes.  Any profit that is passed on to those who own the business of the company – the shareholders – is arrived at after making allowance for the payment of the corporate tax.  If the company then distributes the after tax profit to shareholders in the form of dividends, the law says that those dividends are income in the hands of the shareholder.  As income they are liable to the personal income tax of the shareholder.

Since that personal income is only derived after allowing for the corporate tax paid by the company, the shareholder’s income has been twice reduced by a liability to income tax, the corporate and the personal taxes.  This leads to unhappiness and a sense of unfairness.  (Of course, big businesses, like BHP or Telstra, result in myriads of other taxes being paid – the income tax of the employees, payroll tax, sales taxes on plant and machinery, and so on, but we can put all that to one side.)

In a book about superannuation, which is still in preparation, I said:

Prior to the Hawke/Keating government, investors in shares in companies had been subject to double taxation.  Prior to declaring a dividend on its profit, a company has paid corporate tax on that profit.  The corporate rate is 30%.  Then the dividend was taxable as income in the hands of the shareholder.  If he or she was paying tax at 50%, they had lost at least 80% of the value of the return on their investment as a result of this double taxation.  The government legislated to ensure that the taxpayer only paid the one amount of tax. 

But the government went further for dividends received by superannuation funds.  The law says that if a super fund receives a dividend from a company that has paid the company tax, and issued the dividend ‘fully franked’, the fund will get a credit for the tax paid by the company. 

The result is that you add about 30% to the value of the dividend in your hands.  6% becomes 8% (rounding off.)  While you need to be careful about allowing tax considerations to dictate how you do business, you need to bear this treatment of dividend income of super funds firmly in mind.  This is no mere wheeze.  This law is fundamental to the way that this nation has legislated for its future.  It does for example bear on the attraction of foreign equity.  European and American companies traditionally return much lower dividends than Australian companies – and you do not get the benefit of these tax credits.

As I follow it, and the thread is not easy to pick up, the relief from double taxation in the first place was limited to a credit on tax otherwise payable by the person receiving the dividend (provided, of course, that the dividends were issued ‘fully franked’).  Then a government of a different colour (that of Howard/Costello) changed the law, in the year 2000, to allow for cash credits to be paid to super funds that had no income tax to pay.

There is now a proposal by the other party – the one that introduced the reform – to take the law back to that made by made by the Hawke/Keating government and to stop allowing the payment of cash credits.  The Howard/Costello changes have been broadly criticised, if not condemned, as a profligate buying of votes in the form of what is called middle class welfare during boom times, and that it is time the government stopped paying perks that we no longer afford.  I can follow all that, but the proposal, as it seems to me, is open to the following observations.

First, if the object is to save revenue, which the government can then redistribute, then the people taking the hit will be those earning less rather than those earning more.  This is because the whole point of the change is to stop paying cash refunds to those who earn less than the fundholders who can apply refund credits to income they otherwise earn.  If that is right, it is an unusual exercise in redistribution to commence by putting a burden on those who receive less than those who are better off.  I refer to what Alan Kohler said in The Weekend Australian.

But the problem is that conceptually, there is no difference between cash not paid and cash received, to the party at either end; franking credit cash refunds are not a loophole but an equalisation, between those who pay 30 per cent tax or more and those who happen to pay less, mainly because they earn less.  Drawing a line between the elimination of tax that would otherwise be paid but is not because 30 per cent tax has already been paid on that money, and rebating it as cash refund is arbitrary, illogical and discriminatory.

In the same paper, Terry McCrann said:

In terms of the structure and integrity of imputation, it is irrelevant of whether the credit is less than or exceeds any other net tax payable by the shareholder.  More simply, the company has paid ‘too much’ tax on behalf of those shareholders with marginal rates of less than 30 per cent.  The refund is effectively exactly the same as normal refunds of too much personal tax paid by a taxpayer.

Is the answer to those objections that if the person receiving the dividend does not have to pay tax on it, then the issue of double taxation does not arise for that taxpayer on that dividend – and the cash refund has been paid to deal with an anomaly or inequity which in truth does not exist?  The revenue is boxing at a shadow.  The Latin phrase is cadit quaestio (the issue does not arise, or is dead)To go back to my starting sample, if I do not pay tax on the dividend I receive from the shoe shine company, there is no double tax for me to be relieved of.  That is why this proposal hits lower earners.

This is how Judith Sloan seeks to explain the argument for the Howard/Costello change to the law in The Australian.

If an individual earns more than $180,000 a year, the marginal income tax is 47 per cent, including the Medicare levy.

When that individual receives dividends from a company issuing fully franked dividends, the tax on the dividends is 17 per cent – 47 per cent minus the 30 per cent already paid.

When an individual earns less than $18,200 and pays no tax, then the individual receives a cash refund of 30 per cent.  This is only fair.  Without cash refunds, the effect on very low income earners would be a tax on 30 per cent of dividends.

I cannot follow that.  All income received as dividends is subject to 30 per cent tax.  If the dividend is not taxable in the hands of a taxpayer because he or she earns so little, that taxpayer needs no protection from double taxation.  The payment has only borne tax once.

My problem may be with the link to imputation.  I am familiar with the notion of a ‘progressive tax’, but to frame a law predicated on the need to look after those who are not so well off looks to me to come dangerously close to what some call ‘identity politics.’  A state-acquired El Dorado is not something we associate with The Australian.  It could lead to heart attacks at the IPA, and a call-out of the Minutemen at the Tea Party.  Just think of it – in the name of ‘equity’ or ‘fairness’, the government gives away money to those investors who have made less profit than others.  This would have brought tears to the eyes of the late Californian oligarch Chief Justice Rose Bird or a Russian oligarch wolfing down his black caviar in Siberian exile.  Nor should we forget that the word ‘imputation’ is itself pregnant with fiction – it is as intellectually respectable as ‘deemed’ – or ‘derivative.’

[To be continued.]

Here and there – Anthony Trollope on laws and morals

 

The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

Here and there – The appetite for revenge – Punishment as a measure of despair

 

If I kick a dog, it will want to bite me.  If you hit me, I will want to hit you back.  Our instinct is not to forgive those who trespass against us, but to trespass against them.  Our instinct leads us to seek revenge.  That’s one of those instincts that we share with animals.  The Oxford English Dictionary has this for ‘revenge’:

The act of doing hurt or harm to another in return for wrong or injury suffered; satisfaction obtained by repayment of injuries.

We might fairly say that our law was born and shaped to control our instinctive need to take revenge.

We need to look first at what the original wrong or trespass was.  Oliver Wendell Holmes said in this in The Common Law:

It is commonly known that the early forms of legal procedure were grounded in vengeance.  Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law began in that way.  The feud led to the composition, at first optional, then compulsory, by which the feud was bought off…..Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.  It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked.

Later, Holmes said that our laws dealing with wrongs and crimes all ‘started from a moral basis, from the thought that someone was to blame.’  A ‘law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear’.

It follows that the punishment must be measured by the level of blame of the offender.  Holmes referred to the view that at least one purpose punishment is to deter the criminal and others from committing similar crimes.

Thus the punishment must be equal, in the sense of proportionate to the crime, because its only function is to destroy it.  Others, without this logical apparatus, are content to rely upon a felt necessity that suffering should follow wrongdoing.

Holmes saw in this emotional imperative ‘the notion that there is a mystic bond between wrong and punishment.’  That was very different to the view ‘that the infliction of pain is only a means to an end’, namely, deterrence.

Well, in the year of grace 2017, we prefer the deterrent view to a ‘felt necessity’ or ‘mystic bond’ that wrong-doing must lead to suffering, but we still feel a need to have our basic moral standards and our personal safety vindicated by the law.  We tend to lump the latter under the heading of ‘retribution’, meaning repayment.  How you distinguish retribution from revenge is a question that is a little too metaphysical for my taste.  Of the three factors mentioned by Holmes – revenge, deterrence, or retribution – only deterrence looks to be capable of being tested empirically.  We would now add reform or rehabilitation – that too may be capable of at least some measurement.

But on any view, the punishment must fit the crime.  Otherwise, as Holmes said, we contravene the teaching of Kant – and I think of Jesus – that every person has their own dignity or worth, and that we as a community must not treat a person as a thing, or merely as the means to an end.

For present purposes, at least three other conditions must in my view be met when we as a community seek to punish one of our members as a criminal.

First, since the law has taken vengeance from the victim and family, the punishment must be inflicted by and under the law, and not by the victim – or by the mob.  Secondly, the punishment must be adjudicated according to the rule of law.  We are all equal before the law, even cardinals of a church or magistrates of a court, and we can only be deprived of our rights by a judgment given after due process and by a court sitting according to law.  Finally, since the law inflicts the punishment on behalf of the community, the community must accept responsibility for ensuring that the punishment is that which has been ordered by the court – and no more.  So, when criminals were flogged, the community assumed some responsibility for ensuring that the punishment did not lead to the death of the criminal.  So now, if our law requires that a criminal be deprived of their liberty by imprisonment as a punishment, we as a community have the responsibility to ensure that the deprivation of liberty is the only punishment that the court has ordered – and not that the criminal is raped or murdered or bashed into a vegetative state.

(I may say that all of this discussion is predicated on the notion that our law of punishment has a basis in logic that underwrites the very considerable legal industry that expounds it at such length.  I was not able to detect such a logical basis when I studied Criminology in 1965, and I have not seen it since, despite having sat on tribunals over thirty years where the issue passed blithely over my head.  To say that a sentence of eight years conforms to logic or theory better than one of four or six to me resembles awarding points for difficulty to the Beatitudes.  But that is a discussion for another day.)

A recent edition of The Saturday Paper had the following story.  Robin Irvine worked a 12 hour shift in a coal mine.  Driving home, above the relevant speed limit, he failed to see a woman cyclist, a mother and a wine-maker, in time.  The collision killed her.  There were no drugs or alcohol involved.  It looked like a case of fatigue.  Irvine was devastated by the consequences of his actions.  He was charged with negligent driving causing death.  The court was told he was experiencing ongoing psychological issues from his involvement in the death.  A pre-sentence report said Irvine would benefit from supervision and counselling and that he was eligible to undertake community service.

The magistrate, who was known as ‘Fierce Pearce’, did not adjourn to deliver sentence.  He sentenced Irvine to twelve months imprisonment.  That is very rare for this kind of offence.  Irvine’s lawyer was in shock.  He asked for bail pending appeal.  The police did not oppose bail, but the court refused it.  (It is not clear to me who first used the term ‘flight risk,’ or what evidence there was of such a risk.  What is clear is that it would have been ludicrous to suggest that Irvine should have been held in custody pending the hearing of the charge.)

Irvine was taken to a high security prison that houses serious criminals and that has a history of assaults on prisoners.  With the assistance of other prisoners, a violent twenty year old prisoner bashed and stomped on Irvine, and left him in a vegetative state.  After two years in rehab, Irvine lives with his mother who has to look after him.  The state allowed him $5000 compensation as the victim of a crime.  In the trial of the prisoner for assault, the Crown could offer no motive.  Irvine and his wife are divorced.  He and his mother have been sent to hell.  According to the report, Magistrate Pearce will retire this year at the age of 71.

Not just we lawyers, but all Australians should be sick at heart over this outrage.  If there is a God worth worshipping, his will has been flouted in what mortals should call a crime against humanity.  If you look at the principles I have sought to set out, each one of them has been violated.

I first ask whether the hearing gave due process.  Was this one of those old time magistrates who say ‘I’m the sheriff in this town, and it’s my way or the high way.’  I’ve seen courts like that.  You wonder why you bothered to turn up.  The decision has been taken before you get to your feet, and it’s rule by a man, and not by the law.  But that is just surmise, so I put it to one side.

What is not matter of surmise is the impropriety and unfairness of the sentence of imprisonment.  According to the press report:

Statistics maintained by the NSW Government show that of the 65 cases [on this charge] dealt with between 2013 and 2016, only two people were jailed. A large percentage received non-conviction orders, the most lenient sentence available.

On that basis, it is nigh on impossible to support the sentence of imprisonment in this case.  And the magistrate must have known the records which made his sentence improper and likely to be set aside on appeal.

It is that which makes his refusal of bail not just capricious and unreasonable, but arbitrary and cruel.  That is a complete repudiation of the rule of law.  And, again according to the report, this magistrate had form for this form of cruelty.

In 2010, 13 men who had been jailed by Pearce had their sentences quashed.  When District Court judge Garry Neilson came to the case of Ian Klum, he wept when told Klum had been bashed to death at Grafton jail while awaiting the outcome of his appeal against a sentence for the offence of driving while disqualified.  Magistrate Pearce had refused an application by Klum for bail pending his appeal.

The judicial arm of government therefore behaved dreadfully in this case.  Then both it and the executive arm surrendered all care by putting Irvine straight into this kind of prison at Wellington.  This is what the press report says:

Wellington houses around 500 inmates, some of them violent offenders or gang members moved from other jails across the state to isolate them….

Bashings and sexual assaults are a regular occurrence in Australian jails, yet individual offences feature little in public discussion.  If Irvine had been beaten this way in Kings Cross on a Saturday night, his assault would have been front page news.  Yet his maiming in a place where the state was responsible for his wellbeing slipped by without any media attention or scrutiny.

Our jails, dangerous places at the best of times, are shockingly overcrowded.  The state’s 37 correctional facilities were built to accommodate 11,000 prisoners.  Current figures show more than 13,000 inmates, and the number has been rising.

In 2015 the Minister for Corrective Services approved two-person cells being used to accommodate three inmates.  In January this year it was reported that assaults on prison premises had increased by 37 per cent over the past two years.

Let me go back to revenge, and our instinctive reaction to seek revenge – which it is a hallmark of a civilised community to seek to contain.  We are, we hope, beyond the stage of the ‘felt necessity that suffering should follow wrongdoing’ as being a sufficient justification for punishment in general or for a particular sentence.  The punishment must fit the crime and we musn’t use real people for target practice.

Anyone who believes that a stint in Wellington, or any other such place, will send the inmate out a better man is wilfully delusional.  So, in my view, is anyone who believes that community security can be improved, either measurably or at all, by increasing the time that convicted criminals spend in jail.  Isn’t the truth rather that most prisoners will come out worse than they went in?  As I understand it, overseas experience says that this problem is worse in terrorist cases, and that the time that terrorists spend in jail just hardens them up to do better next time.  If that’s the case, trying to contain terrorism by holding terrorists in jail for longer terms is about as sensible as trying to lasso a herd of elephants with spaghetti.

What I see rather is that the courts are just taking some of the worse offenders out of circulation for a time – because in the absence of any alternative form of punishment, no one has thought of a better idea.  It’s like an expensive form of cold storage.  In the name of heaven, who would want to be found within the same state as the man who maimed Irvine when he gets out?  He looks to me to be a homicidal maniac now.  Will he not just get worse in the psychopathic Gehenna that is called Wellington?  If our security were paramount, wouldn’t they just throw away the key?

Well, if all that is the most rational account that we can give of punishment, how far have we moved from the instinctive need for revenge?  How far removed am I on this from my dog?  If we see imprisonment as a pis aller, a last resort, I am reminded of some remarks by an Anglican divine, J M Thompson, about a French terrorist, Maximilien Robespierre, that punishment is a measure of despair.

He could, indeed, read men’s minds, but he could not judge their characters; so he could make them think what he thought, but he could not make them do what he wanted.  Faced, as every preacher of a difficult creed is faced, sooner or later, by the problem of unbelief, he was too small-minded to forgive and yet powerful enough to punish.  But punishment is a measure of despair.  It may cause conformity; it cannot produce conviction

But why, then, have jail terms kept increasing and with them our prison populations?  The answer, I think, is that governments have acceded to the demands of parts of the press to increase the terms of jail sentences.  Those demands are not couched as rational arguments founded on evidence of the application of a given theory of punishment.  Rather, they derive from a mystic bond between crime and punishment, the belief that wrongdoers should suffer pain.  That is to say, they derive from our instinct for revenge.  And these demands are not made from a felt need to improve our community.  They are made in pursuit of profit by business people whose adherence to either sense or evidence can go clean out the window where there’s a dollar to be made.

So, we have governments responding to irrational dictates from the press to put more people in jail and to keep them there longer, and then completely failing to see that those jails properly serve the governments’ purpose.  You end up with the frightful and unjust tragedy suffered by Robin Irvine and his mother.  And you wind up with the suspicion that we have fallen this low at the behest of the mob and their chosen organs in the press.

No nation that is so governed can call itself civilised.

As for us lawyers, I think we need to answer the question put by Dietrich Bonhoeffer:

We have been silent witnesses of evil deeds; we have been drenched by many storms; we have learned the arts of equivocation and pretence; experience has made us suspicious of others and stopped us being truthful and open…Are we still of any use?

Here and there – Macaulay on Glencoe, zealots, and superior orders

 

The Clan McDonald (or Macdonald) of Glencoe was a band of robbers.  Most Highlanders were.  The Campbells of Argyle hated them and they had ruthlessly preyed on a man named Breadalbane.  The British Crown offered money to all Highlanders to take an oath of allegiance by 31 December 1691.  Anyone who did not do so in time would be treated a traitor and outside the law.  Breadalbane was in charge of handling the money. The Highland chiefs dragged their feet but they came in.  The McDonald chief left it to the last day – but no one there could take his oath.  He finally got sworn six days later.  That the McDonald chief was outside the law was good news for the Campbells, Breadalbane and for the Scots Prime Minister, Sir John Dalrymple, known as the Master of Stair.  Dalrymple had hoped to strike at a number of clans. In a letter written in this expectation, he said ‘I hope the soldiers will not trouble the government with prisoners.’  Then he found out that McDonald had sworn his oath after the cut-off.  He resolved to strike at that clan.  Without saying that McDonald had taken the oath late, Dalrymple put an order before King William that said:

As for Mac Ian of Glencoe [the McDonald chief] and that tribe, if they can be well distinguished from the other Highlanders, it will be proper for the vindication of public justice to extirpate that set of thieves.

You can get an argument about what ‘extirpate’ might mean there – clean the glen out of these bandits by rooting them out (as the Scots  king swore to ‘root out’ heresies), or wipe  them out in the sense of killing all, including women and children?  A soldier killing a bandit might seek to rely on that order as a defence – but killing a woman or child?

The design of the Master of Stair was ‘to butcher the whole race of thieves, the whole damnable race.’  But the troops would not just march in and execute the condemned outlaws.  Dalrymple was afraid that most of them would escape. ‘Better not meddle with them than meddle to no purpose.  When the thing is resolved, let it be secret and sudden.’ Macbeth himself might have said that.  The troops accepted the hospitality of the clan at Glencoe for twelve days.  Then at five o’clock in the morning, the troops started to kill men, women and children.  But they used firearms, and three quarters of the clan escaped the fate of their chief.

Macaulay could understand the hatred of Argyle and Breadalbane for the McDonalds, but Dalrymple – ‘one of the first men of his time, a jurist, a statesman, a fine scholar, an eloquent orator’?

To what cause are we to ascribe so strange an antipathy?….The most probable conjecture is that he was actuated by an inordinate, an unscrupulous, a remorseless zeal for what seemed to him to be the interest of the State.  This explanation may startle those who have not considered how large a proportion of the blackest crimes recorded in history is to be ascribed to ill regulated public spirit.  We daily see men do for their party, for their sect, for their country, for their favourite schemes of political and social reform, what they would not do to enrich or avenge themselves.  A temptation addressed to our private cupidity or to our private animosity, whatever virtue we have takes the alarm.  But virtue itself may contribute to the fall of him who imagines that it is in his power, by violating some general rule of morality, to confer an important benefit on a church on a commonwealth, on mankind.  He silences the remonstrances of conscience, and hardens his heart against the most touching spectacles of misery, by repeating to himself that his intentions are pure, that his objects are noble, that he is doing a little evil for the sake of a great good.  By degrees he comes altogether to forget the turpitude of the means in the excellence of the end, and at length perpetrates without one internal twinge acts which would shock a buccaneer. There is no reason to believe that Dominic would, for the best archbishopric in Christendom, have incited ferocious marauders to plunder and slaughter a peaceful and industrious population, that Everard Digby would, for a dukedom, have blown a large assembly of people into the air, or that Robespierre would have murdered for hire one of the thousands whom he murdered from philanthropy.

This analysis is vital.  There we have a description of our greatest enemy – the zealot who has God or the people on his side; the quintessential Catholic terrorist, Guy Fawkes; Robespierre and the people of la patrie; Osama bin Laden and the religion of Islam – all responsible for some of ‘the blackest crimes recorded in history’, and all convinced of the blackest falsity mankind has been guilty of – that the ends justify the means.   

Dostoevsky put it this way.

One cannot live by rebellion, and I want to live.  Tell me straight out, I call on you –imagine me: imagine that you yourself are building the edifice of human destiny with the object of making people happy in the finale, of giving them peace and rest at last, but for that you must inevitably and unavoidably torture just one tiny creature, that same child who was beating her chest with her little fist, and raise your edifice on the foundation of her unrequited tears – would you agree to be the architect on such conditions?  Tell me the truth.

So the great Russian writer, in The Brothers Karamazov, foretold the misery that would flow over all of the Russias from the righteousness of Marx, Lenin and Stalin.

In the House of the Dead, Dostoevsky explained how we are corrupted by power.

Whoever has experienced the power, the unrestrained ability to humiliate another human being….automatically loses power over his own sensations.  Tyranny is a habit, it has its own organic life, it develops finally into a disease.  The habit can kill and coarsen the very best man to the level of a beast.  Blood and power intoxicate…The man and the citizen die with the tyrant forever; the return to human dignity, to repentance, to regeneration becomes almost impossible.

Those words are deathless because they are so true, but they have frightening ramifications for Donald Trump.

Shortly before citing those words, Paul Johnson referred to some equally relevant remarks of Joseph Conrad in Under Western Eyes in 1911:

In a real revolution, the best characters do not come to the front.  A violent revolution falls into the hands of narrow-minded fanatics and of tyrannical hypocrites at first.  Afterwards come the turn of all the pretentious intellectual failures of the time.  Such are the chiefs and the leaders.  You will notice that I have left out the mere rogues.  The scrupulous and the just, the noble humane and devoted natures, the unselfish and the intelligent may begin a revolution, but it passes away from them…..Hopes grotesquely betrayed, ideals caricatured – that is the definition of revolutionary success.

All that is so true of the French and Russian revolutions.  A Marxist historian applied this kind of learning to the Communist Party under Stalin: ‘The whole party became an organization of torturers and oppressors.  No one was innocent and all Communists were accomplices in the coercion of society.  Thus the party acquired a new species of moral unity, and embarked on a course from which there was no turning back.’  George Orwell saw all this.

The violence, the randomness, and the cruelty all come to be taken as part of life, and people become what we now call ‘desensitised’.  Commenting on the butchery that followed the fall of the Bastille, the French historian Taine reflected mordantly that some mockery is found in every triumph, and ‘beneath the butcher, the buffoon becomes apparent.’  The result is that the people become less civilised.  They are degraded.  You can get an argument over whether terror or ‘the Terror’ commenced on 14 July 1789, but there is no denying that bloody violence and lawless butchery erupted on that day and continued off and on until at least the time when Napoleon put a former break on hostilities with a whiff of grapeshot.  The nation itself was destabilised for the best part of a century.

To go back to Glencoe, who was to be answerable?  It was all hushed up for a while, but word got out, and there had to be a public inquiry.  It was full and fair, and its findings went to the Scots parliament, the Estates.  The commissioners of inquiry concluded that the slaughter at Glencoe was murder, and that the cause of that crime lay in the letters of Dalrymple, the Master of Stair.  They resolved with no dissenting voice that the order signed by King William did not authorise the slaughter at Glencoe. But the Estates let Dalrymple off with a censure, while they designated the officers in charge as murderers.

Macaulay says they were wrong on both counts.

Whoever can bring himself to look at the conduct of these men with judicial impartiality will probably be of opinion that they could not, without great detriment to the commonwealth, have been treated as assassins.  They had slain no one whom they had not been positively directed by their commanding officer to slay.  That subordination without which an army would be the worst of all rabbles would be at an end, if every soldier were to be held answerable for the justice of every order in obedience to which he pulls his trigger. The Case of Glencoe was doubtless an extreme case: but it cannot easily be distinguished in principle from cases which, in war, are of ordinary occurrence.  Very terrible military executions are sometimes indispensable.  Humanity itself may require them…..It is remarkable that no member of the Scottish Parliament proposed that any of the private men of Argyle’s regiment should be prosecuted for murder.  Absolute impunity was granted to everybody below the rank of serjeant.  Yet on what principle?  Surely, if military obedience was not a valid plea, every man who shot a McDonald on that horrible night was a murderer?

Should officers have resigned rather than carry out their orders?

In this case, disobedience was assuredly a moral duty: but it does not follow that obedience was a legal crime.

That sounds to me like common sense. What about the Scots Prime Minister, the Master of Stair?

Every argument which can be urged against punishing the soldier who executes the unjust and inhuman orders of his superior is an argument for punishing with the utmost rigour of the law the superior with whom the unjust and inhuman orders originate.  Where there can be no responsibility below, there should be double responsibility above. What the parliament of Scotland ought with one voice to have demanded was, not that a poor illiterate serjeant…should be hanged in the Grassmarket, but that the real murderer, the most politic, the most eloquent, the most powerful of Scottish statesmen, should be brought to a public trial and should, if found guilty, die the death of a felon….Unhappily the Estates, by extenuating the guilt of the chief offender, and, at the same time demanding that his humble agents should be treated with a severity beyond the law, made the stain which the massacre had left on the honour of the nation broader and deeper than before.

That analysis seems fair – even if it is distorted by the author’s need to be gentle with King William, one of his heroes, and the failure to mention in this context the hatred of the Campbells for their targets, the McDonalds.  You wonder how many of these killers were reluctant, and how many were actuated by what lawyers call ‘malice’. And it must take some acquired coldness to kill in cold blood members of a family you have lived, eaten, and slept with for so long, and some of whom were morally and legally incapable of committing any crime.

But people who say that the soldiers should have rebelled rather than comply with orders are postulating a very high moral standard, one that calls for immense courage, which may not be appreciated by the dependants of the soldier so called upon.

Very few people have the still strength or firm insight of Dietrich Bonhoeffer in Germany after Hitler became the Chancellor.

We have been silent witnesses of evil deeds; we have been drenched by many storms; we have learned the arts of equivocation and pretence; experience has made us suspicious of others and stopped us being truthful and open; intolerable conflicts have worn us down and even made us cynical.  Are we still of any use?  What we shall need is not geniuses, or cynics, or misanthropes, or clever tacticians, but plain, honest, straightforward men.  Will our inward power of resistance be strong enough, and our honesty with ourselves remorseless enough, for us to find our way back to simplicity and straightforwardness?

It took a hero even to ask the question.  Moral giants like Lincoln, Bonhoeffer and Mandela come along once or twice a century.  The rest of us just hope that we don’t get called on to seek to emulate them.  If we do, and if we fail, as is most likely, then the judgment will belong not to us or the law, but to God.

This sordid affair was all Scottish.  The avengers took the view that the ends justified the means.  In doing so, they sank below the level of those whom they attacked.  It’s a lesson on how not now to respond to terrorism.  Lawyers have a saying that hard cases make bad law.  If you stretch or bend the law for a tricky or hard case, you make the law worse.  You debauch it.  That, too, is a lesson of the massacre at Glencoe.

Here and there – Three Naughty boys

Three ministers of the Commonwealth Crown criticised members of the Victorian Court of Appeal while they were hearing an appeal on sentence in a case of terrorism. The ministers said that the judges were too lenient. Even by the degraded standards of Australian politics, their language was disgraceful. They used phrases like ‘divorced from reality’ and ‘ideological experiments.’ The content, tone, and timing of the remarks suggested that this was a concerted political attack. In case you are in doubt as to the crude party politics involved, one comment was:
Labor’s continued appointment of hard-left activist judges has come back to bite Victorians.
Yes, it was as bad as that. The ministers sent their messages to an organ of the press that is known to be sympathetic to their cause. The Australian is loaded with Liberal rejects and Labor rats. That paper splashed the attack over its front page. The headline left no doubt that this was the paper that was the chosen vehicle of the attack: ‘Victorian judiciary ‘light on terrorism.’ ’
These events raised issues about the common law offence of contempt of court (which should be renamed as ‘interfering with the due administration of justice’). One form of contempt may be put this way. If someone publishes material that is either intended to interfere with pending proceedings or that has a tendency to interfere with pending proceedings, that person may be found guilty of contempt of court. Plainly there could be an issue about both the intent and tendency in the conduct of the ministers.
Another issue of contempt arose. The interference with the course of justice may occur in the context of a particular proceeding – this is called the sub judice rule – or by an attack on the system generally. The old name for this kind of contempt, which is rarely seen now, was ‘scandalising the court.’

But you need to bear one thing in mind about the first, or sub judice, kind of contempt. As indicated, that contempt may involve either an intent or a tendency. The law is clear about the first. If a person is found to have intended to interfere with the administration of justice in a way that would be unlawful, then that intentional conduct will found a finding of contempt, irrespective of whether that conduct could have achieved the desired result. Intent is not necessary but it is sufficient in this difficult part of the law. So, if I brandish a knife at a witness to deter her from giving evidence against me, I am guilty of the offence even if my conduct had no effect on the witness.
The question of intent is of course one of fact. As a judge said a very long time ago, the state of a man’s mind is as much an issue of fact as the state of his digestion.
This issue is important because the judges tend to hold that they are not and cannot be influenced by what the press says. That is just as well because the press very often gets it very wrong on sentencing, and you can’t help thinking that bleating about light sentences sells newspapers. Descendants from convicts curiously don’t often seek lighter sentences.
What normally happens when there is a credible allegation that a crime has been committed? The police investigate and the relevant officer of the Crown decides whether to prosecute the accused on that evidence before a court. In contempt cases, as with most serious criminal cases, it is the Director of Public Prosecutions who makes that decision. As I recall it, that office was created so that the Attorney General, an elected politician, does not have to make legal judgments that have political consequences.

The normal process of the law was not followed here. As far as I know, neither the police nor the DPP were consulted. The police could have investigated the issue of fact I referred to above. Did these ministers in fact intend to interfere with the course of justice in the case before the court? Had the police interrogated the ministers, the ministers could have sought advice on whether they might take the fifth – that is, whether they might refuse to answer on the ground that they might be incriminated. It is not hard to imagine the seismic reaction to that course. If the DPP had been approached, that office could have determined what on all the evidence was the best way for the public interest to be protected. That is precisely the job of that office.

Why didn’t any of that happen here? The short answer is that I don’t know, but one press report suggested that a previous Chief Justice of the Federal Court had pursued a course like that followed by the Court of Appeal here.
This is what happened. An officer of the court wrote to the ministers asking them to appear before the court to show cause why they should not be dealt with for contempt of court. They did not attend court personally, but the Commonwealth Solicitor-General did on their behalf. The result was a very unhappy shambles. The ministers were prepared to express regret, but not to apologise. Are these the kinds of games we pay our ministers and Law Officers to play, like little boys playing with matches behind the shelter shed? Should the Solicitor-General be appearing for politicians who get into trouble for taking part in a crude party political stunt? Is it part of the portfolio of a Commonwealth minister of the Crown to shaft the State government of the opposition party?
As a result of forces that we shall probably never know of, the ministers changed their minds. They again did not attend court personally, but this time the Solicitor-General on their behalf retracted all their claims and apologised unreservedly. They tossed the towel in. The judges said in that case they would not then seek to proceed further. Case closed. The Commonwealth Attorney-General gives one of his watery smirks, and the three naughty ministers, who have not set foot in the court, remain at large to practise their dark arts.
But some people, like Mercutio, have misgivings.
Three idiots who should have known better put three of our judges in a very difficult position. The judges had to react quickly and firmly to protect the integrity of their high office, both in this particular case, and generally. I have no reason to doubt the rightness of their course, but it may be as well to reflect on what we have lost because that course had to be taken.
This was a serious and calculated political attack by members of one arm of government upon another. If this kind of malice is tolerated, we could be in deep trouble in this country. This is precisely the form of cancer that was a symptom of the rise of those regimes that we least admire. Not many people trust their politicians now, here or elsewhere, but we do by and large trust our judges. A concerted political attack on them is therefore as vicious as it is sinister.
It matters not that the attack was childishly inept, but it does matter that the three miscreants were trained as lawyers. It also matters that with the benefit of the advice of the Solicitor-General, at my expense, they persisted in and aggravated their criminal conduct. It also matters that they sought to recite themselves into a possible defence by claiming that ‘our own role as ministers’ necessarily involved them in ‘participating in public debate on controversial issues’. The sentencing of terrorists has nothing to do with their portfolios, and their ignorance of the law is boundless.
Even these politicians must know that in these troubled times, when public faith in public office is falling through the floor, the most likely result of their initial offence – that is, their crime – and their contumacious persistence in it, was to bring into question the conduct of the judiciary. It’s as if having debauched their own currency, they were content then to debauch that of the judiciary.  Yet they walk away with nary a smack, and not even a reprimand to their face. Some people out there are, then, likely to feel short changed.
Due process goes both ways. The accused have rights. So do we, the public. (That’s what the appeals were about.) Did not the public have an interest is seeing that the serious issues raised here were dealt with in the ordinary way? Evidence is led and tested and arguments on the law are all held in public before a dispassionate and unengaged court. It then gives a considered judgment. There may then be appeals. The public knows exactly what is going on and why. These shabby ferrets would have been pursued into their burrows and then brought out again into the cauterising glare of a public hearing, where otherwise high personages get the same treatment as you or I would get. We are all, after all, supposed to be equal under the law.
And in addition to inquiring into the evidence of the state of mind that led to this attack, the court, including quite possibly the High Court, could have given us guidance on two important legal issues.
First, litigation cannot act as a brake on all public discussion. There is a defence to this kind of contempt, associated with the unromantic name of Bread Manufacturers. In that case, one of our distinguished jurists held that:
The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
You can see again the importance of the issue of intent, which is here expressed in the negative, so possibly raising nice questions about onus. The issue of intent would also be fundamental to the question of punishment if the ministers were found guilty.
A second question may then arise. Would this finding of guilt for an offence which is punishable by indefinite imprisonment disqualify these people from retaining their seats in parliament under the Constitution?
And if the court found that these men did intend to interfere, a political question, and possibly a legal issue, might then arise. Are they fit to hold office as ministers of the Crown?
In the events that have happened, we will not see any of those issues dealt with.
Instead, after the first appearance, the judges may have felt uncomfortably close to be being seen to have performed any one of the following roles – victim, informant, witness, prosecutor, judge, jury, and court of appeal. Some of that confusion may occur in what is called contempt in the face of the court, but that was not the issue here.
The judges may also have felt a little like Mr Bush or Mr Blair after they occupied Baghdad – it seemed like a good idea at the time, but what do we do if the natives don’t cooperate and play ball?
Then we have to ask whether it was right for the judges to be embarking on this contempt inquiry while sitting in judgment on the relevant case. What on earth may have happened if either party had asked the court to step aside because its members were publicly discussing the possible reaction of the public to their conduct in the case from the pressure being brought to bear on them by the government?
For reasons I can well understand, the Chief Justice put it to the Solicitor–General that the Ministers had put the court in a difficult position. If they dismissed the appeal, ‘we’ll be accused of engaging in an ideological experiment or being hard-left activist judges.’ But if they increased the sentences, ‘the respondents [the convicted terrorists] may have an understandable grievance that we were doubtlessly affected by what three prominent ministers for the Crown had to say.’ Well, sentences were increased, and we are left with the worry that not just the interested parties may think that the government had its way after all.
As it happens, some sentences were raised in a way that has brought a warm outer glow back to The Australian, whose front page headline reads this time ‘Bar raised for terror sentencing.’ This happens shortly after three members of the government have attacked not just the judiciary, but members of this particular court, for being too lenient. What inference does the average terrorist draw from that sequence? What does the fair minded observer in the public think?
That brings me back to the issues fact in this tawdry case. What did these ministers intend to achieve by their attack? As we saw, they were not interrogated by the police. They were not, so far as I can see, asked to put their response on oath. They certainly were not cross-examined – in a case where counsel would not have to be Buddy Franklin to be kicking goals from all round the ground. Instead, they were suffered through their mouthpiece, the Solicitor-General for the Commonwealth of Australia, to offer what lawyers call a bare denial. As indicated, they said in part that:
…. it was never our intention nor would it ever be to influence its decision-making process…we did not intend to undermine public confidence in the judiciary…
Well, then, what did these three soi disant lawyers intend to do – hold communion with the pixies, or have Crocodile Dundee sing Advance Australia, Fair? How would the average punter react to that rubbish? Try answering that question in polite language. It’s as if the apathy about honesty has wafted our way over the Pacific.
May I make one final observation about the course that these ministers by their conduct imposed on the court? In the 70s, 80s and 90s, I was involved in fighting many contempt cases. I lost them all – by some margin. Since then I have been involved in advising the press before publication. These issues are often difficult, especially with deadlines. Journalists, and their lawyers, don’t usually get the clear air that judges have. Nor do they get any sympathy from the judges. The risks are awful – for example, the Crown only has to prove a tendency; the accused has no right to a trial by jury; and the sky is the limit on penalty. The owner may be able to write a cheque, but it can’t do the jail time.
But in all my time, I cannot recall a journalist being asked to show cause why he or she should not be prosecuted for contempt – on the apparent footing that an apology will end the matter. In I think every case I have known, I would personally have embraced the offer – with both bleeding arms. Why is it then that ministers of the Commonwealth get offered this soft velvet treatment but journalists do not?
One thing looks clear. The next time a journalist is charged with contempt without having received the offer made to Commonwealth ministers, we can expect a thumping editorial about inequality – and possibly an industrial reaction.
How did the press react? The ABC News at 7 pm led with the story and said that the three judges had been ‘fuming.’ It would be tart to say that the judges aren’t paid to fume, but Aunty need not expect a rude letter. As I said, The Australian thought the increase in sentences was terrific. With their ineffable capacity to get legal affairs wrong, one article commenced with phrases captioned on page one:
Victoria’s Court of Appeal judges have muscled up. No longer will courts let convicted terrorists off with a lenient sentence.
The editorial is indeed remarkable. It begins by saying:
Victoria’s Court of Appeal made a fair and responsible ruling yesterday when it increased sentences of two men convicted of planning separate terrorist attacks in Melbourne.
Well, that’s nice for their Honours – they are secure in the knowledge that they have the blessing of The Australian. The editorial later referred to a ‘problematic twist.’ They referred to the purple language of the ministers that I have set out, like ‘hard-left activists’ and ‘divorced from reality.’ Then we get this:
Yesterday’s sentencing decision proves otherwise.
Have these people got no sense of decency at all? They apologised unreservedly to the court that they had published these vile and baseless charges – and now the editor finds that the judges are not guilty of them! The newspaper has found in favour of the judges! It passes belief. Then they go on to explain why the ministers’ ire had been raised’. Then they make one of their trademark infantile digs at the ABC. What mistake did the ministers make? They had based ‘their remarks on an ABC report that had not given the full context of the judges’remarks.’
God give us strength to endure all this. It’s as if Rupert Murdoch has done the people of Victoria a favour.
What is the most worrying thing here? These three bunnies were in the sewer up to their necks and they didn’t even smell it. That shows the shocking decline in standards in our public life.

Sir Owen Dixon is by common consent the greatest judge that this country has produced. He was a stickler for form. In a very well-known passage, his Honour said:
Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.
We may hope that Sir Owen’s view prevails and that it’s business as usual when cases like that of the three ministers come up again in the future. It would too much to hope that our politicians might get better.

Passing bull 73 –Bull about legality and Brexit

It is hard to understand the shock about the ruling of the English High Court, and even harder to understand the outrage.  Populism is one thing; outlawry is another.  I had thought that the English had settled these issues in the seventeenth century.  When Charles I sought to rule as the Crown without Parliament, there was a civil war, and Charles lost his head.  When James II sought to rule without Parliament, there was a foreign invasion and James II lost his crown – he went quietly because he knew full well what the English had done to his father.  The learning as I understand it is that ‘sovereignty’, the word that was so abused on this issue, lies in the Crown in Parliament, and not out of it.  What led Mr Johnson and Mr Farage to think that this fundamental premise had changed?  Or was this just another detail that these politicians overlooked?

As I have remarked elsewhere:

Not long after the end of World War II, a newish judge gave a series of lectures called ‘Freedom under the Law’.  Here is a sample of the style and caste of thought for which Lord Denning would be become famous in the common law world.  Having dealt with Hitler, the English now had to deal with Stalin.

‘Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power.  We have had all that out time and again in our long history: and we know the answer.  It is that the executive government must never be allowed more power than is absolutely necessary.  They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’  We taught the kings that from Runnymede to the scaffold at Whitehall [the execution of Charles I]: and we have not had any serious trouble about it since.’

That last sentence is pure gold.  Lord Denning had put on a uniform in the First World War; one of his brothers had fought at Jutland leaving Denning angry for the rest of his life that the Navy had not gone in harder; he had very old fashioned and old time views on punishment, both capital and corporal; but he was a very kind, proper, and polite Anglican gentleman, and one of Her Majesty’s greatest judges; and he had no hesitation at all in saying that we  – and we know who we are – had pacified the kings of England– most recently on a scaffold, with an axe.  There is a hardiness in the English that lesser people have fatally ignored.

I gather that all eleven judges of the Supreme Court will sit on the appeal.  It may be helpful if they can give a simple joint judgment that lay people can follow.  There is a precedent for that.  Those who are interested can go to the Postscript and read a note from elsewhere that contains the whole of the judgment in Brown v School Board of Education.  Desegregation in the South in the 50’s makes this little English case look like a walk in the park.  I warrant that it is well worth reading.

Poet of the Month: Lee Cataldi

Spring 1971

I cross the sunlit square

and pay

sixpence for an imported

rose

the trees are bare

nothing disturbs the soil’s

repose

but summer’s trumpets in

the sky

harmony of spaces

is music silent harmony of faces

yours

as you walk before me

you compose

more than the eloquent

colours of your clothes

weary of fights

I lean about the square the wind

accommodates the sun the grass

is putting itself to rights

it seems wrong

to ask you to repair

the damage of other nights

would you do it for a song?

Postscript

The Rule of Law and Racism

The rule of law says that no one person is above the law and that all people are equal before the law.  What commenced with Magna Carta in 1215 was in substance completed by the Declaration of Rights in 1689.  After 1776, the latter became adopted in the United States as amendments to the U S Constitution known as the Bill of Rights.

The Declaration of Independence proclaimed that ‘all men are created equal.’  People living in the West now see notions of equality as fundamental not just to freedom and democracy, but to civilisation as such, but the statement that we have just quoted was a lie when it was uttered in the United States in 1776.  It was a lie that would be purged and the nation redeemed at Gettysburg and elsewhere, but it continued to fester well into the twentieth century, and it continues until now.

The principal provisions of the Bill of Rights embodying the Rule of Law are the Fifth and Fourteenth Amendments.  Those provisions deal with issues of procedure called ‘due process’ (a term that was first applied in medieval adoptions of Magna Carta), but they also deal with issues of substance.

The Fifth Amendment relevantly provides:

No person shall be held to answer for a…crime, unless on a presentment or indictment of a Grand Jury,…. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is obvious that this clause derives directly from a body of law that started with clause 39 of Magna Carta which said that ‘no free man shall be taken…or in any way ruined….except by the lawful judgment of his peers or by the law of the land.’  More than seven centuries after the armed and unwashed barons extracted this guarantee from that weedy princeling called King John, it would be invoked in a vital move to establish the equality before the law of the American negro in the United States.

The Fourteenth Amendment was passed much later to provide that the states as well as the federal government were bound to afford the same protection to citizens as the Fifth Amendment.  It concluded:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Founding Fathers ducked the issue of racism.  In today’s terms, we would say that they just kicked the can down the road.  But the Justices of the United States Supreme Court had also got their hands dirty.  In Plessy v. Ferguson, decided in 1896, that court held that under the Fourteenth Amendment, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities are separate.  ‘Separate but equal’ was the phrase.  As in 1776, high law and good intentions about equality failed before the colour bar.

In the growing civil rights movement in the 1950’s, this shabby relic of the nineteenth century would obviously have to come under attack.  As it happened, the issue that led to the demise of the ‘separate but equal’ doctrine in the Supreme Court in litigation related to segregation in schools.  In southern states, there was one school for white children and one for black children.

The resolution of the issue is truly remarkable on a number of counts.  Under the very broad terms of the Bill of Rights, the Supreme Court inevitably gets to rule on issues that are highly politically charged – such as abortion, gun laws, and segregation.  Is this right for unelected judges?  Are racist conflicts capable of being dealt with by the law?  Should a court just follow public opinion, at a respectful distance, or might there be cases where judges might actually try to lead public opinion?  In an issue as explosive as segregation in the South, would a body of nine aging white men be able to give a judgment which would be understandable by ordinary citizens and convey sufficient moral and logical weight to stifle any reflex toward another rebellion in the south against a wilfully interfering federal government?

All this came up in Brown v Board of Education that was decided in 1954Like most law that arises out of a decision of judges or juries, this one was the product of many accidents of history.  Had not one Chief Justice of the Court succumbed to death when he did, our story may have been very different.  As it was, that death seemed so timely to another justice of the Court that he was moved to say that this was the first positive evidence that he had seen of the existence of God.

In 1951, a class action suit was filed against the Board of Education of the City of Kansas.  The plaintiffs were thirteen Topeka parents on behalf of their twenty children.  The suit called for the school district to reverse its policy of racial segregation in schools.  Separate elementary schools were operated by the relevant board under an 1879 Kansas law.  That law permitted, but it did not demand, districts to maintain separate elementary school facilities for black and white students.

The plaintiffs had been selected by the Topeka NAACP (National Association for the Advancement of Colored People).  The first-named plaintiff, Oliver L. Brown, was a parent.  He was a welder in the shops of the Santa Fe Railroad, an assistant pastor at his local church, and an African American.

In spring 1953, the Court heard argument in the case, but it was unable to decide the issue.  Justices Black and Douglas were well known liberals.  They were joined on this issue by Justices Burton and Minton.  Chief Justice Vinson noted that Congress had not issued desegregation legislation.  Justices Reed and Clark were inclined to leave things alone.  Justices Frankfurter and Jackson (who had prosecuted at Nuremberg) were dead against segregation, but they were both worried about judges departing from precedent to suit themselves.  They were also concerned about how any decision might be enforced.

After Chief Justice Vinson died in September 1953, President Eisenhower appointed Earl Warren as Chief Justice.  Warren was from California, and he was seen by many as a juristic lightweight.  He was a man of liberal disposition, and he had favored integration in the past.  But above all, he had the supreme grace of a politically gifted person – he was able through his personal presence and charm to bring people together.  Perhaps never has a politically gifted person used that skill to better effect on a superior court.  That court was and is a body of great power, but it is not often composed of people who may be expected just tamely to toe the line.

In its reconstituted condition, the Supreme Court asked for the case to be reheard in the fall of 1953, with special attention to whether the Fourteenth Amendment’s Equal Protection Clause prohibited the operation of separate public schools for whites and blacks.  The case was reargued at the instigation of Justice Frankfurter, who used reargument to allow the Court to try to gather a unanimous consensus around an opinion that would outlaw segregation.  It was the death of Vinson that had led Frankfurter to say that this was the first serious evidence he had seen of the existence of God – was the Southern way of life to be ended by a Jewish atheist and a gaggle of other Godless liberals?

The course of argument the second time around was very heavily charged, explosively so.  The leading counsel for the South was the formidable John W Davis, a former solicitor general of the United States.  He said that education was a matter for the states, and that segregation was hallowed by long usage – what lawyers might call immemorial custom giving rise to precedent.  ‘To every principle there comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued that it passes the limits of judicial discretion and disturbance.’  The attorney for the Commonwealth of Virginia addressed on a different plane.  ‘We recognize that there are a great many people of the highest character and position who disapprove of segregation as a matter of principle or of ethics.  We think that most of them really do not know the conditions, particularly in the South, that brought about that situation.’  You don’t have to live with them – we do.

The leader of the NAACP team was Thurgood Marshall, who would become the first black Justice on the Court.  Mr Marshall was not inclined to step over eggshells or to speak in some kind of code.  He wanted to get to the point – and he did.  As it happens, that is what appellate advocacy, indeed any advocacy in court, is about.  He said that these laws were ‘Black Codes’ that the Court could only sustain if it found that ‘for some reason Negroes are inferior to all other human beings’.

I got the feeling on hearing the discussion yesterday that when you put a white child in a school with a whole lot of colored children, the child would fall apart or something.  Everybody knows that it is not true.

Those kids in Virginia and South Carolina – and I have seen them do it – they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together.  They have to be separated in school.

There is some magic to it.  You can have them voting together, you can have them not restricted because of law in the houses they live in.  You can have them going to the same state university and the same college, but if they go to elementary and high school, the world will fall apart.

There is, as there should be, a vast amount of scholarly literature on the coming and going, toing and froing between the judges while they wrestled with the issues – and with each other.  While all but one judge was against segregation, those who had a conservative view about the place of the judiciary questioned whether the court should go as far as the welder from the Santa Fe railroad wanted them to go.  But the clerk of Justice Jackson told him that ‘if you are going to reach the decision you do, you should not write it as if you were ashamed to reach it.’

Chief JusticeWarren convened a meeting of the justices.  He made something of a speech to the effect that the only reason to sustain segregation was a belief that negroes were inferior.  That had been Thurgood Marshall’s point.  Warren said that the Court had to overrule Plessy to maintain its place as a bulwark of liberty, and that it should do so unanimously to avoid resistance in the South.   That, too, was the point.

Here, then, was a matter of great moment for the Court, and the nation – or what Abraham Lincoln would have called the Union.  A mistake either way could have been awful.

Painstakingly, and over a period of five months, Warren kept going until he had all eight of the other justices behind him.  The final decision was unanimous.  Warren drafted the basic opinion and kept circulating and revising it until he had an opinion that was endorsed by all of the members of the Court.

Earl Warren wanted the judgment of the court to be short and to be easily readable by the general public.  He wanted the language to be ‘non-rhetorical, unemotional, and above-all non-accusatory.’  It is a great shame that this lesson is not given more respect to now by courts who fill phone books with uncomely collages of ephemera of vastly less weight.  Warren wanted and obtained a judgment short enough to be run by the newspapers of the nation in its entirety.  Many of them did just that.

Here then is the whole judgment (without the footnotes.)

BROWN v BOARD OF EDUCATION                                                                                      

  1. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware.  They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis.  In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.  This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.  In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called ‘separate but equal’ doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537.  Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities are separate.  In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not ‘equal’ and cannot be made ‘equal,’ and that hence they are deprived of the equal protection of the laws.  Because of the obvious importance of the question presented, the Court took jurisdiction.  Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868.  It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment.  This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.  At best, they are inconclusive.  The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’  Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.  What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history with respect to segregated schools is the status of public education at that time.  In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold.  Education of white children was largely in the hands of private groups.  Education of Negroes was almost nonexistent, and practically all of the race were illiterate.  In fact, any education of Negroes was forbidden by law in some states.  Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world.  It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates.  Even in the North, the conditions of public education did not approximate those existing today.  The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown.  As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.  The doctrine of ‘separate but equal’ did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.  American courts have since labored with the doctrine for over half a century.  In this Court, there have been six cases involving the ‘separate but equal’ doctrine in the field of public education.  In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged.  In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications.  Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637.  In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff.  And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented.  Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.  Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases.  We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.  We must consider public education in the light of its full development and its present place in American life throughout the Nation.  Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments.  Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.  It is required in the performance of our most basic public responsibilities, even service in the armed forces.  It is the very foundation of good citizenship.  Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.  In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.  Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?  We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on ‘those qualities which are incapable of objective measurement but which make for greatness in a law school.’  In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ‘. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.’  Such considerations apply with added force to children in grade and high schools.  To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.  The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:  Segregation of white and colored children in public schools has a detrimental effect upon the colored children.  The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group.  A sense of inferiority affects the motivation of a child to learn.  Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.  Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.  Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.  This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.  On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question — the constitutionality of segregation in public education.  We have now announced that such segregation is a denial of the equal protection of the laws.  In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.  The Attorney General of the United States is again invited to participate.  The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.

It is so ordered.

When the Chief Justice announced that the decision of the Court was unanimous, ‘a wave of emotion swept the room.’  Doubtless there were many moist eyes in court that morning.  You will recall that one of the counsel retained on behalf of the victorious plaintiffs was a white lawyer called Charlie Black – who had attended a dance in Austin Texas 1931 to listen to a black band perform with Louis Armstrong.

How was the decision to be implemented?  Within an hour, the Voice of America beamed news of the decision around the world in thirty languages.  The NAACP pushed for full integration in the shortest time.  The South was just as dug in.  It is sobering to read that sixty years ago, counsel for the Commonwealth of Virginia asked the Supreme Court to ‘face reality’ and offered to lead evidence to prove the inferiority of blacks.  The State of Florida told the court that only one in seven police officers would enforce the law.  That would be called mutiny elsewhere.  There was this exchange between the Chief Justice and counsel for South Carolina.

‘But you are not willing to say that there would be an honest attempt to conform.’

‘Let us get the word ‘honest’ out of there.’

‘No, leave it in.’

‘No, because I have to tell you that right now we would not conform; we would not send our white children to the Negro schools.’

At times, there is not much separating mutiny, rebellion, revolt, and civil war.  The South put up a proposal described by the scholar who wrote the leading treatise on the case in terms that ‘the most ungainly camel in Islam would have had an easier time passing through the eye of a needle than a black child getting into a white school in Florida.’

The court gave complex orders that desegregation proceed ‘with all deliberate speed’, a phrase that has been traced back to the old English Chancery.  It took a very long time.  Any kind of speed was out of the question.  Instead of integrating its public schools in 1961, Prince Edward County in Virginia closed them, and sent whites to schools funded in part by donations in lieu of tax, while the blacks were left in one-room shacks.  You would get a similar reaction in those countries following the English model if you sought to abolish private schools – which make their own curious contribution to the continuance of caste.

But desegregation of schools did proceed, and this decision was a mighty blow against the scourge of caste in the West.  The judgment stands as a memorial to the courage and integrity of the judges who made it.  As one federal judge later said, the decision in Brown ‘was humane, among the most humane moments in all our history.’

The simple dignity and clarity of the judgment of the Supreme Court of the United States in Brown v Board of Education takes the breath away from lawyers who live in times that are altogether more mediocre and less exalted.

Passing Bull 69 – Secrecy and Camps

In The Third Reich in Power, 1933-1939 (2005), Richard Evans says of concentration camps in the Reich that officers and guards were banned from talking about their work:

Communication between inmates and their relatives or friends was restricted; officers and guards were banned from talking about their work to outsiders.  What happened in the camps was meant to be shrouded in mystery.  Attempts by the regular police and prosecution authorities to investigate murders that took place there in the early years were generally rebuffed.  By 1936, the concentration camps had become institutions beyond the law.  On the other hand, however, the regime made no secret at all of the basic fact of their existence.  The opening of Dachau in 1933 was widely reported in the press, and further stories told how Communist, and Reichsbanner and ‘Marxist’ functionaries who endangered state security were being sent there; how numbers of inmates grew rapidly into the hundreds; how they were being set to work; and how lurid atrocity stories of what went on inside were incorrect.  The fact that people were publicly warned in the press not to try and peer into the camp, and would be shot if they tried to climb the walls, only served to increase the general fear and apprehension that these stories must have spread.  What happened in the camps was a nameless horror that was all the more potent because its reality could only be guessed at from the broken bodies and spirits of inmates when they were released.  There could be few more frightening indications of what would happen to people who engaged in political opposition or expressed political dissent, or, by 1938 – 9, deviated from the norms of behaviour to which the citizen of the Third  Reich was supposed to adhere. 

Well, that kind of evil madness could only happen in a totalitarian state like Hitler’s Germany or Stalin’s USSR, could it not?  No.  It is happening here.  The Australian Border Force Act 2015 is presumably part of what Tony Abbott calls his legacy.  S 42 provides for secrecy in terms that Stalin and Hitler would have gazed on in wonder.

Secrecy

             (1)  A person commits an offence if:

                     (a)  the person is, or has been, an entrusted person; and

                     (b)  the person makes a record of, or discloses, information; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years.

Exception

             (2)  Subsection (1) does not apply if:

                     (a)  the making of the record or disclosure is authorised by section 43, 44, 45, 47, 48 or 49; or

                     (b)  the making of the record or disclosure is in the course of the person’s employment or service as an entrusted person; or

                     (c)  the making of the record or disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or

                     (d)  the making of the record or disclosure is required by an order or direction of a court or tribunal.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

The relevant terms are of course defined in cascading rainbows or snow jobs, but doing the best I can to apply this law – which like most contemporary legislation is just about indecipherable – a person employed in one of our offshore camps would breach this law if she told her husband that a colleague at work had broken wind after biting into a bad mandarin.

This law is a confession of our shame at the highest and most formal level.  No wonder people look on us so darkly in Europe.  We should all be ashamed.  Instead, we just shoot the messenger.

Poet of the Month: Verlaine

Through Interminable Land…

Through interminable land

Ennui of the plain,

Vague snow once again

Gleams like sand.

The sky is copper

Devoid of any light,

You might almost gather

The moon had lived and died.

Floating clouds

Grey oak-trees lift

In near-by woods

Among the mists.

The sky is copper

Devoid of any light,

You might almost gather

The moon had lived and died.

Wheezing crow

You gaunt wolves too,

When north winds blow

How do you do?

Through interminable land

Ennui of the plain,

Vague snow once again

Gleams like sand.

Up and down with the doctors

 

When you get down to it, for most of us going to hospital is like going to court – at least for the punter, either the patient or the client.

First, no sane person wants to be there.  The occasion of the visit is usually some hurt to you and some consequent pain.  At the very least, there are other and better things that you could be doing.  Resentment is never far from your surface.  Neither is suspicion.  How far are the agents of the system who are on display complicit in or responsible for your predicament?

Then, the moment you walk through the door, time seems to stand still, and you feel hopelessly out of place.  You know what it means to be a ‘displaced person.’  The markings of foreign distinction are everywhere in uniforms, furniture and equipment.  They have their own impenetrable coded language, hierarchy, and rituals.  You may feel displaced, but you are constantly reminded of that fact.

Next there is the uncertainty.  Unless you are very badly advised, you will be told two things about any medical procedure or legal trial.  First, each involves risk.  Secondly, the result of neither is predictable.  You can be very badly hurt in either.  Hospital might be the only source of death, but in either a court or a hospital you can take a hit that will ruin your life.  And yet you have to make decisions on matters of such consequence in a chamber that is at best unreally strange – and yet both imposing and threatening.

Finally, and above all, there is that sense of loss of self-control or that sense of disempowerment.  From the moment the drawbridge goes up, you feel that you are a prisoner of the System.  You are subject to the power of others.  You sit there helplessly watching its agents play with your mind.  Will it ever end?  How in the name of God did I get here?  Even the gown they put you on is degrading.

The word ‘domination’ is interesting.  It comes from the Latin dominus – lord.  We might have a queen, but we don’t have lords down here, and only Poms into kinky sex go in for domination.  Too many professional people do not understand the dread that so many descendants of convicts have for any form of authority.  Recent events in the UK and the US show that well educated people have not understood those who are not so well educated – and you end with a black hole like Farage or Trump – or One Nation.

These reflections came to the surface over the last few days.  On Tuesday I had a bronchoscopy at Royal Melbourne.  I did yet another scan first.  I arrived before ten and left well after five.  The procedure involves looking at the affected area while the patient is under anaesthetic or sedated to the point of unconsciousness.  (Don’t ask me what the difference is.)  I was warned that mine might be difficult because of the location of the lesion.  I’m now told that it was and that they spent fifty minutes doing the probe.  That is why I felt punched up after it.

They did not get affirmative proof of the malignancy of the lesion but the good news is that there was no evidence that it had spread.  Surgery, the preferred option, was still on the table.  They wouldn’t let me go until my blood pressure had settled.  I’m afraid I may have got a bit difficult – but I felt hopeless and powerless.  I felt imprisoned.

I finally escaped into the wet and bleak Melbourne evening.  A mate from school kindly picked me up and drove me home and stayed the night.  And boy do they police the pick-up.  That must be physically supervised by the System – what Ken Kesey called ‘the Combine’.  In the name of God, please keep me away from anyone like Nurse Ratched.  (I see that in writing about that great book, I said that ‘McMurphy has balls and Nurse Ratched wants them.’)

On the way home, I started to feel an ache or pain in the middle of the chest that seemed to move to the right.  It affected my sleep and stopped me from sleeping on the side.  It seemed to me that it was within the range of predicted consequences, but I thought that I should check with base.  It occurred to me also that my breath was shorter.  That being so, I was advised to go to my local doctor and get an X-ray.  I attended on him at 2.15.

A physical examination revealed an asymmetry.  I went next door in the hospital for the X-ray.  That meant I was within the clutches of the System again.  I must have had a premonition, because I normally take the Wolf to town, but now I had left him at home – alone and palely loitering.  A concerned looking radiologist said that the doctor would be down to talk to me.  A procession of equally concerned nurses asked me about my breathing.  They seemed surprised that I was still standing.  I had been arrested again.  They kept getting the run-around on the phone at RMH and they could not make contact with those who had done the procedure.

I can well understand why they thought RMH should look after what looked like a collapsed lung.  That sounds worse than the technical term pneumo thorax.  It involves an irregular placement of air.  I hurriedly and worriedly made arrangements for good neighbours to collect and look after Wolf.  That had problems – one of them is currently undergoing radiotherapy for a similar problem.  Then I was off, all strapped up and hooked up in an ambulance.  I was back in RMH within 24 hours – almost to the minute.  What an absolute bastard!

Well, at least I would be able to see firsthand how Casualty works in one of our overloaded public hospitals.  And that would prove to be educational – for want of a better word.

I was driven down by Mat and looked after in the back by Al.  I had very informative discussions with both of them either en route or in Casualty.  They both struck me as very professional people who were both sensible and caring.  We discussed the problems of young people with drugs and the accidents that can happen on the freeway – or the areas notorious for heavy injuries, including a recent death, caused by roos.

After about twenty minutes, they found a cubicle in Casualty and I was unloaded from the ambulance trolley.  I was very glad for their sensible care.  My view of Paramedics is now very different – I had been inclined to lump them in with firefighters, who are not in my good books.  Al and Mat are truly professional people – we shouldn’t get too snooty about that title.

A youngish female nurse then began the formalities of incarceration, and that awful sinking sensation just got worse.  People in Kyneton had said that I might be there for days!  Then, to my most grateful surprise, the doctor who had done the bronchoscopy, a most capable man from Respiratory, came in.  (He had also supervised one of the bike stress tests and had allayed my terrors of that process.)

He looked at the pictures and was less concerned.  I was not surprised since he had advised me that this was a foreseeable consequence and that they might just decide to allow the irregularity to take its own course – or do something to promote the correction.  Had I lived locally, I may have been sent home, but since I was there – in the clutches of the System – I may as well stay there, under observation, and with X-rays to ensure that the irregularity was not getting worse.  In saying that, neither he nor I was being critical of those in Kyneton – in light of the findings before them, and the facilities available to them there, any course other than that which they adopted would have been foolhardy – not least if I had gone home and carked.

So, I had to wait for a bed.  This did not look to me like a panic night in Casualty, but there was enough hustle and bustle, and merry humour to ensure I would not sleep in Casualty.  I expect that they hand out beds on need, and my priority rating was about zero.  On one view, I shouldn’t have been there.

The hours went by.  I engaged with a medical student, as I had in Kyneton, and would do again in town.  Put largely, they now spend four years on theory and four in practice – a model I commend to the lawyers; along with the fact that most of the professors are in practice.  I had only had a bowl of soup in two days, but I was past hunger, and even scarcely conscious that this was my second AFD of this year.  I felt better when the nurse said that draining the lung over days was an unattractive option that the doctor had excluded.  To that extent, my luck was holding.

I did start to wonder if people suffer nervous breakdowns while trying to survive Casualty.  There was a change of shift, and a very affable male nurse told me that he had switched from being an academic political scientist – a most interesting shift.  Then he came back with news that I had a bed.  Protocol required that I go by wheelchair, and then there were the same old forms and questions.

It troubled me when I heard a kind of wailing, or keening, or banshee –from a very troubled old woman – which I sometimes thought was answered.  Was this perhaps the psychiatric ward?  Had I really been handed over to the Combine?  A very nice nurse of Indian extraction gave me some pyjamas, and to my surprise I fell asleep, at about midnight.

I was awoken many times.  The first was when my cell-mate decided that 2.30 am was a good time to be on the cell phone.  To be fair, she was sotto voce, but not sufficiently sotto not to disturb me.  For about half an hour she then competed with the banshee howls, and those infernal machines that blip so audibly every ten seconds like Chinese water torture.  (I had fashioned some ear plugs from wet Kleenex – they were a bugger to get out next morning.)

The second time I was awakened was for observations.  Well, it is axiomatic that if you want peace and rest, the last place you go to is a bloody hospital.  The third time was when an older woman patient was having a scrap with a nurse right outside my door, and in the most fruity terms.  ‘If you don’t wipe that fucking smile off your face, I will fucking do it for you.’  It was evident that this poor old woman had form for this kind of outburst, and she was sadly full of self-loathing as well as hostility to the System.  But I wondered why it had to take place just outside my door, and I wondered if we were now looking not just at a possible nervous breakdown, but total madness.

Anyway, sleep after that was out of the question, and the object was to ensure my release as soon as practicable – it did not bear to think what might happen if I had to endure another night like that.

Happily my good doctor arrived on time, with a couple of students, and offered me the option of his draining some of the air to promote the process of repair.  This procedure took about 40 minutes and he thought he had got a fair bit of the stuff out.  During that time, I had met the professor who had attended the original process, and who turned up with about ten students in tow.  We put on quite a show for them.

Then I had to wait to get an x-ray, and so I slipped into that form of timelessness, fretting about whether I would get back home in time to pick up the Wolf before my neighbour had to go back to Bendigo for radiotherapy.  Minutes turned to hours, and I was finally taken down on a trolley for the x-ray.  A young lady with the broadest of Irish accents then helped me up toward the frame for the x-ray – and for the second time in two days, I felt like I might faint in that position.  They were able to take the x-rays with my being seated, and I prayed that the notion that I may have fainted did not get back to other parts of the System and give them evidence to prolong the incarceration.

In the parking bay outside radiology, it was gratifying to see the range of colour and ethnic backgrounds in those pushing and parking the trolleys.  You see it throughout this hospital.  People in England are worried about what might happen to the levels of nursing staff if they get too hard on immigration, and from my experience, we could have that problem here too.

After some mild pestering, a particularly nice young lady of Chinese descent gave me the news that liberation was at hand.  There were still a couple of meters of documentation to go through, but I finally got out – that is, I finally escaped – at about 1 30.  I was determined to get a taxi from  RMH straight to the Kyneton hospital where I had parked my car so I would be in time to collect the Wolf from my neighbour.

I had an extremely pleasant Pakistani cabdriver.  He has three children.  One of them has a degree in mechanical engineering.  The second, the daughter, is about to complete a degree in science.  The third is still at school.  They had all gone to private schools in the western suburbs.  He lives at Taylors’ Lakes.  This was a Thursday, and every Thursday he and about 11 mates get together at the house of one of them for a barbecue.  It is a boys’ only event.  They have the barbecue and then take coffee and play cards.  These evenings run from about 6.30 to 11.  Then they drive home – stone cold sober – because they are Moslems, they don’t drink.  I wish that some of those who get exercised about immigration, and particularly Moslem immigration, could reflect on the success of people like my driver yesterday, and the contribution that they make to the life of this country.

My neighbour told me that the Wolf had had an adventure.  He got anxious during the night, so they brought him back here to sleep.  When they came to pick him up next morning, he had shot through.  The Wolf had done a Lassie!  I don’t know whether he had set off in search of me, but thankfully the Ranger picked him up, and he has since been in a softer and more chastened mode.  I feel sorry for the poor little bugger in being left like he was.

So, I could go home and then start to field calls.  I have to say that I’m afraid I got a little curt because I was feeling, as the phrase goes, a little tired and emotional.

Some people like talking about these things.  I’m not one of them.  When you talk about things that you don’t understand, bullshit is inevitable, and I had got a full serve at lunchtime from my cellmate talking to members of her family about the comings and goings and thoughts of doctors and nurses.  When I started this process, a good friend of mine said that I would be exposed to any number of old wives’ tales, and that I should just endure them and forget them.  That was good advice.  You see it all the time as a lawyer when your client is obviously getting advice over the back fence which is worth far less than what client has paid for it – zero.  If there is no point in discussing what the doctors are doing, because that is beyond our full understanding, there is in my view even less point in discussing your own reaction to the process.  Who benefits from loaded self-psychoanalysis?  Even the pros bugger that up.

I must confess that I have some difficulty in seeing what the fuss is about.  The following propositions appear to me to be inarguable.  We are all going to die.  A major mechanism of that end is called cancer.  When you get to seventy, the biblical age, you cannot in my view complain if you get a tap on the shoulder.  I lost my two best mates to cancer more than five years ago, so on any view I am ahead.  It looks like my cancer has been diagnosed early enough to be dealt with.  I was a heavy smoker for a long time, and my life will be shortened in any event as a consequence.  The question then is whether it may be further shortened by this recent, and most fortunate, discovery.  I live in the best place in the world to deal with that issue.  And because I was an Australian born when I was, I have had more opportunities in life than almost any other bastard on this planet.

These facts of life being what they are, I don’t really see what the fuss is about.  For those reasons, I issue bulletins to the family, but otherwise I would prefer to talk about the usual suspects – footy, or whatever – even politics.

The Wolf and I went to bed in a fairly chastened manner, but I had had the benefit of the best part of a bottle of Leconfield Cabernet, while he had had the benefit of the remains of my ox-tail and mashed potatoes.  Rather to my surprise I had a reasonable night’s sleep.

I have made a mental note to develop a kit to have available for the next time I am subject to random incarceration.  In addition to toiletries, and nickers, it will contain best quality earplugs and sedatives and sleeping tablets.

Finally, may I tell you that my Pakistani cabdriver did not let me down?  Whenever I get one of them, I say that I was there when the Pakis knocked over the Poms at the MCG.  ‘You mean 1992 – the World Cup?’  ‘Of course.’  ‘I was there too!’  ‘Of course!’  It is truly both beautiful and wonderful.  I must’ve been one of the few bastards there that day that was not then or about to become a Paki cabdriver.  As soon as you mention the subject, a bright light flashes across their eyes – just like when Peter O’Toole said to Omar Sharif that ‘We are a long way from Damascus!’

The range of ethnic backgrounds in the staff at RMH is a wonderful thing for a white man from the sticks to behold.  Do you know what the trouble is in living in the sticks in this country?  THERE ARE TOO MANY BLOODY WHITE PEOPLE!