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!

The CFA and MFB – they sacked the wrong board

 

The MFB has failed to maintain discipline under the terms of its act.  The board of the CFA refused to do something against the law.  The people who refused to disobey the law get fired, and the people who refused to carry out their law stay in place.  And the unlawful authority is given more power over the lawful authority.

The difference in character between the two authorities is fundamental.  It is recognised in the CFA act.

The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner.

The ratio of volunteers to paid firefighters in the CFA is about fifty to one.  It is hard to imagine anyone less like a volunteer than a member of the MFB.  Almost every single thing they do is regulated and rewarded.  The government simply insults our intelligence by denying that it has trashed this statutory precept.  It has directly insulted the whole voluntary basis of the CFA and it knows it.  What Faustian pact has driven it to disregard its own laws?  The Premier found himself in a position of conflict – loyalty to a cabinet colleague and an electoral interest in not offending a union patron.  Guess which one had to take the fall – and a woman to boot.

Even the government’s own reporter could see the differences:

Despite being similar services, CFA and MFB have very different cultures which are strongly entrenched in their organisations. CFA brigades are created from their communities and often become the fabric of their communities, particularly in rural areas. CFA volunteers may wear a number of hats in their local area and be leaders on a range of issues. Though part of the organisation, CFA brigades also have a sense of independence and autonomy. This can sometimes create tension with the organisation. MFB firefighters join the organisation. They are assigned to a particular station, which may not be in the community where they live, and form very strong connections with their brigade and platoon. They have a fierce commitment to protecting the communities they serve but are generally not “of” the community in the same way as CFA brigades. These differences in culture can result in very different approaches to community engagement.

It is clear to me from talking to people in the country that they are troubled by the MFB’s patent hostility to women.  Things have changed.  Rural people think that the MFB is about a century behind them.  And guess what happens when management works up the courage to move a millimetre.  Off the men go to their protectors in the Fair Work Commission.  And this state government supports this old narrow world.  Never let this government say that it supports women’s rights – until women are 50% of both authorities.  (We here at Malmsbury have about 30% women – the work of Antichrist to the men of the City.)

Finally, could anyone at the Harvard School of Business devise a more perfect model for wrecking management than that propounded by the Fair Work Commission and the Premier of Victoria?

If you want to see the havoc that can be created when a federal body and a state government get involved in the administration a state statutory tribunal, look at the decision that follows.  (Some names have been changed.)  A copy of the original decision has been with relevant state and federal ministers for some time now.

COMMANDER JOHN SMITH

  1. This case could, I think, have been disposed of in an hour or two on the day it first came on for hearing. Instead, it has gone clean off the rails, and I fear that it may be costing the people of Victoria a great deal of money.
  2. Commander John Smith has been charged with disciplinary offences under the MFB Act. The offences are alleged to have occurred between December 2012 and September 2014.  They involve allegations that Mr Smith used his computer at work to send, receive or store emails that were pornographic, offensive, obscene, racist and sexist.  That conduct is alleged to be in breach of the MFB Workplace Behaviour Policy and the Victorian Public Sector Code of Conduct.  These allegations founded charges of misconduct in the use of MFB property for an inappropriate purpose (s 78A (b) of the act) and disgraceful or improper conduct (s 78A(e) of the act).
  3. On 26 September 2014, more than six months ago, the charging officer gave substantial written details of the allegations to Mr Smith. A record of interview was made by the charging officer on 1 October 2014.  Mr Smith was assisted by Commander Johnson who I was told has a law degree and who took an active part in the interview.  Mr Johnson had told the charging officer that Mr Smith was not a member of the UFU and had no other access to advice, so that he, Mr Johnson, had agreed to assist him.  During the interview, Mr Smith was not inclined to concede that he had breached any relevant obligation.  He did say that if he passed material on, neither he nor the recipient thought that the material was offensive.  He later said that those people were prepared to make statements to that effect.
  4. But Mr Smith replied in detail to the allegations in a letter to the charging officer dated 17 October 2014.  In it, Mr Smith said:

As a person and MFB employee, I apologise unreservedly for having breached the MFB Workplace Behaviour Policy relative to offensive material.  It clearly was not my intent to do so and as such I don’t believe I have consciously committed any of the offences detailed in your letter.  I am, to say the very least, extremely embarrassed that this has occurred; not least because it was never my intention to contravene Brigade policy.  On reflection, it is entirely appropriate and necessary that the MFB review these matters as serious when brought to their attention.  It is also relevant to understand that these events did not occur in the public domain and did not offend any of the recipients.

Given that concession, you might wonder what all the fuss has been about.

  1. Mr Smith was advised on 10 December 2014 that charges were being prepared. They were conveyed by mail on 22 January of this year, and the date and place of hearing were conveyed and confirmed separately.  On 16 March, I copied the union (the UFU) with an email request to the MFB for me to see a copy of the charges, and one of the three folders of the material complained of.  Later I asked the MFB to find out who Mr Smith might turn up to the hearing with.  ‘It may not be a good idea to do so alone.’
  2. The charges were brought on for hearing in the William Cooper Justice Centre on 30 March 2015. Ms Kathy Dowsett instructed by Thomson Geer appeared for the MFB.  Mr Smith did not appear and there was no reason given for his absence.  I was satisfied that he had been notified of the time and place of the hearing, and I indicated to counsel for the MFB that I would proceed with the hearing in his absence.   I think that I commented that he had a right of appeal which would involve a rehearing.  In the course of the morning, I was told that Mr Smith was not appearing because he had been on night shift.  At one stage I counted six lawyers in the hearing room apart from me.  Later I was asked to adjourn the hearing to the next day to allow Mr Smith to appear.
  3. I was reluctant to take this course because the charges were in my view serious. They raise issues that should be dealt with properly and promptly under the relevant law regulating this Brigade in the public interest.  As I have said, Mr Smith acknowledges that ‘it is entirely appropriate and necessary that the MFB review these matters as serious when brought to their attention’The evidence disclosed that Mr Smith had no computer of his own, and that he had used the MFB computer for private purposes, including receiving group communications in the material that the MFB complains of.  The evidence also suggested that Mr Smith and Mr Johnson, both being commanders, had had some difficulty in coming to terms with the issues raised.
  4. The hearing resumed on Tuesday 31 March. Mr Smith did not appear again (although I thought I had seen him outside barristers’ chambers on my way to the court room).  I was handed two lots of correspondence.  One was from Davies Lawyers threatening Supreme Court proceedings and saying that consideration would be given to seeking counsel’s advice on a damages claim against the MFB and ‘the individual purporting to hear the matter.’  The other was correspondence with the union relating to a proposed hearing at the Fair Work Commission.  Legal action of one kind or another was threatened or commenced in different state and federal jurisdictions.  I said to counsel words to the effect that unless there was an injunction, I thought that I should proceed with the hearing.  I was however told that the MFB agreed to the hearing being adjourned again.  I wanted any adjournment to be as short as practicable, but I was persuaded to adjourn it for some weeks.
  5. The rehearing then had to be rescheduled on two other occasions because of issues like room availability or the work schedule of Mr Smith. The matter is presently part heard and listed for hearing on Wednesday 13 May at the County Court at 10.15 am.
  6. On 21 April, the solicitors for Mr Smith gave notice that they would ask me to disqualify myself on the basis of apprehended bias on the grounds stated in the letter. (The letter also referred to an application before the Fair Work Commission relating to ‘the proper forum for the determination of disciplinary proceedings brought against Commander Smith.’)  They asked for their application to be dealt with as a preliminary hearing on 6 May or 7 May.  On 23 April, Thompson Geer responded that any such application should be made at the hearing on the scheduled date.  After correspondence, I agreed to hear the application as matter of urgency on Wednesday 6 May at 8am so as to hold the hearing date of 13 May.
  7. The hearing was scheduled at a time that would allow the lawyers for Mr Smith to apply to the Supreme Court for an injunction if they lost in their application. I suggested to the MFB that they might have an appropriate retired judge on stand-by.
  8. Mr David Grace QC appeared on the bias application for Mr Smith and Ms Dowsett for the Brigade. The matter was very capably and sensibly presented by each counsel, and I am most grateful to each of them.  It was dealt with in less than an hour.  Mr Smith was not present again, but a union official was.  I counted nine lawyers in Court Room 1 of the William Cooper Centre yesterday morning.
  9. Mr Grace gave me some background and he gave me his understanding of the reasons why Mr Smith was not here on either of the two prior occasions. He told me that the object of the application to the Fair Work Commission was that the subject of these proceedings ought to be determined by that Commission and not this tribunal.  When I said that that was a large claim, he referred me to s 26 of the federal act.  He told me that Mr Smith was not contesting my jurisdiction but that that issue might be raised elsewhere.
  10. Ms Dowsett told me that the MFB contested the jurisdiction of the Fair Work Commission. There are therefore serious constitutional issues and there was some discussion of referring those issues to the state and federal Attorneys-General.  I was also told that some issues in this case had been discussed up to ministerial level in the Victorian government and that Mr Smith did not appear on the second day because he had letter from the Chief of Staff of the Minister saying that the hearing would be adjourned.  As well as constitutional issues, there are therefore heavy political issues.  I was told that parts of the press were full of it.
  11. I was referred to Johnson v Johnson (2000) 201 CLR 488, 493; Re Minister for Immigration v Jia Legeng (2001) 205 CLR 507, [180] to [187]; Re Minister for Immigration, ex parte Epeabaka (2001) 206 CLR 128, [90]; Simjanoski and others v LaTrobe University [2004] VSC 180; Robb v Nixon [2005] VSC 310; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; Victoria Police v Coroners Court [2013] VSC 246, [44]; and Picos v Servcorp [2015] FCA [15]. Those cases give some guidance on applying the fundamental principle.  It is to be applied with common sense to specialist tribunals or busy ministers, and the tribunal is not to be displaced unless the case for doing so is duly made.  Some care needs to be taken when looking at preliminary comments in an ongoing hearing or remarks made with specialist knowledge.  A tribunal is not to be displaced unless the case to that effect is ‘firmly’ established.  The courts are there to protect the rights of people by due process and not to throttle the civil service or to scold politicians.  The courts should discourage that ‘gotcha’ jurisprudence pursued by litigants longer in the pocket than on the merits – and I am not saying that is the case here.
  12. Since this is an application in the nature of a preliminary hearing, although the hearing itself has already taken place over two days, I will not look at the evidence of the material complained of in any detail. I should however say something about it in order to explain why in my opinion it is vital in the public interest, and in the interests of members of the Brigade, for these charges to be heard and determined according to law without delay.  And when I refer to the law, I mean the law dealing with this Brigade.
  13. The charges allege that the material is offensive, sexist, racist and obscene. One set of photos shows a man whose genitals have been removed and stuffed in his mouth.  The email comment is ‘Ouch!’  One shows a woman apparently trying to effect vaginal penetration with a form of fire extinguisher.  One shows the rescue of a man whose car had gone down a well in, I think Saudi Arabia, and as I recall the conclusion is to the effect ‘That is why Allah gave them fucking camels.’  One asks: ‘What is the race that stops a nation.’ ‘Aboriginal.’  No one would want to spend time on this material, but it is difficult to think of any interest group or minority in this country that would not be seriously affronted, and possibly provoked.
  14. So, the evidence raises serious issues about the conduct of an officer of the Brigade. Then there is the significance of the rank of Mr Smith.  In a case heard three years ago, I said of another commander:

A commander is a very high ranking officer in the MFB.  There are only two between him and the top.  This one told me that he had been paid more than twice the average wage and twice what this nation pays its secondary teachers in government schools.  He finally accepted that the average taxpayer would be appalled to hear that someone in his position had collected $1300 for not turning up – and was sitting on the money.  He had not considered refunding the money …

If a real question arises as to the conduct of someone in a position of trust, that person should say candidly what happened.  If you want to put that as a legal proposition, the person trusted must respond in good faith.

Commander X did not do this.  He behaved as if he saw the investigation as a kind of game, and as if his integrity were just a kind of bargaining chip.  In his reaction to investigators, and in his evidence here, Commander X demeaned his office and rank and risked damage to the standing of the Brigade.

… any member of the MFB who prevaricates or plays games with investigators or in here can expect to be dealt with very firmly.  If the initial conduct of this commander was bad, his response was worse.  It suggests what might be called an attitude problem.

This question of attitude is the most troubling.  These people work for terms and conditions beyond the dreams of most Australians, let alone people elsewhere.  This man gets paid an amount beyond the comprehension of a meat-worker at the back of Kyneton, let alone a Sudanese migrant newly come to Melton.  But this commander looks unable to accept the responsibilities that come with this high rank and great remuneration.  The traffic looks one way.  It is as if firefighters like this commander have been seduced by their own success.

  1. A commander is therefore a person of high rank. The higher the rank, the higher is the sense of duty expected and required of the person on whom the rank is conferred.  That person stands in a position of trust and confidence to their employer.  Any employee is legally obliged to do his or her job loyally and honestly.  That means that they cannot use company property for private purposes, unless that use might fairly be characterized as incidental, or for improper purposes.
  2. This matter boils down to a simple issue of trust. In the light of the evidence of what was on the computer, and the response of Mr Smith to the charges he now faces, can he be trusted to discharge the duties owed by him to the Brigade as a commander?
  3. Then there was an express warning given by this tribunal about twelve years ago. One case involved a charge in 2003 against an inspector for having pornographic material on his computer.  (The name of the man was Johnson – I am told that this was the officer advising Mr Smith in this case.)  In the course of that decision, I said:

What is pornographic or obscene may be a matter of impression.  As I remarked at the hearing, on the day when the hostilities commenced in the second Gulf War, a lot of people working in the city would be going home that night to stay glued to the television watching the fruits of civilisation and technology deployed, as some would see it, in the inevitable destruction of innocent people, about as obscene an exercise as you could get.

But some of the material was on any view pornographic, and we are not really talking about pornography.  The real issue is trust.  As I said, the offences took place over a prolonged period and contrary to express instructions given and acknowledged.  The conclusion drawn by the Board is that Mr Johnson is not to be trusted in his present position and should be dismissed.

There is obviously a lot of force in this position.  Mr Johnson is at a level – that of Inspector – where he cannot, as his counsel acknowledged, say this was mere recklessness.  Mere recklessness may well be enough to get an inspector dismissed.  But I think what we are looking at are errors of judgment and the question is whether they are such that there is no alternative but for Mr Johnson to be dismissed.

Later, I said:

Then there is the need to deter others.  Let me make it clear, if it is not already clear, that any kind of abuse of computer facilities, particularly one involving pornography, is a sackable offence, and that the next person found guilty of this kind of conduct will be on express notice that dismissal is the most likely result.  I recommend that something to this effect be placed on the warnings.

Under the ordinary process of our criminal law, Mr Johnson would be entitled to consideration for pleading guilty.  You cannot discount a dismissal.  It is all or nothing.  I am not saying that anyone who pleads guilty cannot be dismissed, but where possible I would like to give recognition to people who facilitate the process.  Mr Johnson is after all the first defendant to appear in this new process.  He appeared on the first occasion in respect of charges laud recently and the matter was concluded in a little over two hours.  He has not put the MFB to a waste of time or money.

As I mentioned, the real issue is I think trust and the need to vindicate the standing of the MFB and its standards of conduct.  It can sometimes be difficult to police notions of trust in this context.  Either Mr Johnson can be trusted or he cannot.  If he cannot be trusted, he is not likely to be improved sufficiently after a holiday or suspension.

As it happens, the MFB did not get the dismissal of Mr Johnson in that case, and I am now told that the penalty imposed was reduced on appeal.

  1. None of these observations will come as surprise to the parties. They are extracted from a memorandum dated 17 September 2003 that I sent to the Brigade and the union reflecting on the first six months of a jurisdiction that had fallen into disuse.  It contained some shockingly bad prophecies:

The procedure had not been working properly for some time.  It is not surprising that there were some problems in getting it cranked up.  People on both sides had to come to grips with a new kind of procedure.  So did the Tribunal.  The union wanted to test some questions in the AIRC and the Federal Court.  Most of these issues have now been ironed out.  In the past, disciplinary processes have stalled when ‘industrial’ issues led to an application to the AIRC or the Federal Court.  It is most unlikely this will ever happen again.

So much for hope.  And then this:

There is a recurring problem of legalism that I have referred to in a number of contexts.  These matters should be dealt with as far as possible as issues between members of the Fire Brigade and not between lawyers.  There has been too great a tendency – at times on both sides – to leave matters to the lawyers.  Bush lawyers are to be discouraged whether they are qualified as lawyers or not, and reliance on technicalities is not encouraged either.  Because of its history, our industrial law has been beset by legalism and technicality, but there is no need to import these factors into disciplinary proceedings.  This message, I think, is getting through, but it is slow.

And this:

A number of the disciplinary proceedings arose out of a context that could be characterized as industrial.  In truth, every disciplinary proceeding can be so characterised if it arises out of something done by members in the course of their duties and they are subject to industrial laws and industrial agreements.  It is now accepted that the fact that a context may in some way be said to be industrial, or an industrial dispute, means nothing for the competency of this Tribunal, which is a disciplinary tribunal, to deal with the matter, or to the nature of the case as a whole.  We can I think forget the industrial mantra.

Well, we now appear to have undergone a generational regression, but I set out those remarks so that people outside will understand the sense of déjà vu that those running the Brigade must undergo when the statutory process has to be cranked up again after a period of inaction.  These problems were adverted to in Measure for Measure, but that happy ending looks a long way back now.

  1. Perhaps I might make a further reference to the obvious need for discipline in a uniformed force that may be called upon to respond to a terrorist attack. I also refer to the obvious need for the Victorian statute to give the CEO the power and duty to enforce discipline in his Brigade.  Until yesterday, I had thought that it was axiomatic that only the Victorian parliament could alter that dispensation.

I have referred to what the principal Act says under the heading ‘Discipline’.  This case is being dealt with under other provisions of the same law.  We are considering disciplinary charges. In the operation of an organisation like the Brigade, the maintenance of discipline will ordinarily be seen as vital to the maintenance of its capacity and readiness to carry out its functions relating to fires and emergencies.  It is difficult to envisage a fire brigade where this is not

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the case other than a fire brigade run by the Marx Brothers.

It would simply not make sense to talk of an undisciplined readiness for a fire or emergency.  It might make sense to talk of an undisciplined response, but that is the last thing that the Brigade or the people of Victoria would want.  Terrorists prey on unreadiness and thrive on indiscipline.

It is therefore essential that the procedures dealing with discipline work promptly and effectively, and that they be seen to work promptly and effectively.  This is very important.  If the Brigade cannot run its own disciplinary procedures properly, how can it be expected to cope with an emergency?

By the disciplinary procedures of the Act, the Victorian Parliament has given the CEO, and no‑one else except his delegate, the duty to enforce the responsibilities the Parliament has put on firefighters.  Since the process derives from the parliament, it can only be changed by the parliament.  It follows in my view that the determination of discipline charges under the principal Act should, at least as a general rule, only be deferred for compelling reasons founded on convincing evidence.  I would expect each party to be equally interested in obtaining a determination of issues with all due expedition.  However that may be, the people of Victoria are in my view entitled to no less.  (Hunter v. McGrath, 26 February 2003.)

  1. That is the background to the present application. I apologise for its length, but I do not want anyone reading this to have any misapprehension about what is at stake in this proceeding.
  2. Before proceeding to the present application, I want to say something about the role of the Fair Work Commission in these proceedings given the sad failure of my prophecy that it was unlikely we would see further applications to federal industrial tribunals or courts.
  3. Because I am not an industrial lawyer, I know very little about the Fair Work Commission, just as they know very little about me. This tribunal is of the state; that is of the Commonwealth.  They occupy different worlds, in my opinion, as I have endeavored to show in my remarks above about the irrelevance of the ‘industrial’ mantra.  The Commonwealth body focuses on the rights of employees, and the duties of employers.  The state tribunal focuses on the duties of employees and the corresponding rights of the employer.  One looks at obligations founded primarily in contract and regulated by statute; the other looks at obligations at common law attracted by statute.  One is concerned with regulating employment at large and achieving industrial peace; the other is concerned with providing an essential service through a uniformed force.
  4. Above all, the Fair Work Commission seeks to arrive at agreements and settlements, and they encourage off the record discussions for deals. This tribunal is here to make findings of fact and decisions of law to maintain discipline not peace.  To the contrary, our act envisages that the CEO will make a binding determination to resolve issues relating to discipline.  That is why I said in my memorandum that you cannot in this tribunal have a ‘settlement’ as such and that the only way you can achieve a ‘satisfactory resolution’ of the issues raised by a charge under the act is for the statutory officer to hear them and determine them as expeditiously as   All this has been dealt with here before.  The differences between the state and federal bodies, with all respect to those who contend the contrary, seem to me to be both inevitable and irreconcilable.
  5. In short, industrial peace and the role of a uniformed force protecting public safety are very different things. That is why I say that the two tribunals are in different worlds – different universes.  It would in my view make as much sense to ask me to sit on the Fair Work Commission as it would to ask one of its members to sit here.  Neither of us would know what to do.
  6. As a result of what I am now told by Mr Grace, that opinion of mine may need some correction. At an appropriate time therefore, we need to consider the consequences of the overlap, to use a neutral term, between the two bodies, and the impact of that overlap on the due administration of justice under an act of the Parliament of the State of Victoria.  I cannot help thinking that some industrial lawyers are prone to forget that the public has rights too.  (Some see a similar tendency in some tax lawyers.)
  7. We can gain some insight into the differences in the two world views from the considered statement of Mr Smith in his letter of 17 October 2014 in which he gave his substantive reply to the allegations against him and made the concession that I have referred to above. As I said, Mr Smith contends that the matter should be conducted under Commonwealth industrial legislation rather than the act of the Victorian parliament that rules this Brigade.  That contention, which struck me as large, gets much larger when you understand how Mr Smith and his advisers apparently envisage their preferred resolution of the allegations against him.  This is how Mr Smith concluded that letter.

Having thought about this matter at considerable length, I have come to realise that the necessary change in attitudes in our workforce is not achievable purely by the publishing of a policy.  The recent release of the Workplace Behaviour online interactive training program is a very positive development which I personally found beneficial and has assisted in changing my understanding of contemporary workplace values associated with Workplace Behaviour standards.  People at my rank will be instrumental in driving the gradual cultural change that will be necessary and having now had such a direct experience, I feel I will have much to offer towards this organizational goal.  I would hope that my MFB record and achievements over the last 35 years of service would afford me some consideration relative to this occurrence and that the explanations provided are accepted to enable a mutually satisfactory resolution of this matter.

No comment is required – but what would a fair-minded observer conclude might be a ‘mutually satisfactory resolution’ except one that involved a deal that avoided any hearing under the MFB Act and in which everything was on the table except for dismissal?  If that is what an MFB Act-free zone looks like, some Victorians might be sorely troubled.

  1. The bias application before me was founded on two classes of statement made by the tribunal – statements in prior cases or in the memorandum referred to above, and statements made on the first two days of the hearing in the absence of the defendant, Mr Smith. The general nature of the remarks relied on by counsel for Mr Smith will I hope appear from my discussion of the argument.  It was common ground that the question on the authorities is whether a fair minded lay observer might reasonably apprehend that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it.  If you strip out the double negatives, would the hypothetical observer reasonably apprehend that the tribunal might be prejudiced in deciding the question before it?
  2. Although I had asked how Mr Smith would plead to the charges, I was not told. I do not know what the range of issues might be on the substantive question of whether any breach of the act has been established.  Nor was it asserted that any of the comments of the tribunal referred to was unfounded or untenable.  The logical foundation of the argument therefore tended to be at large.  I may here add that I had asked the reasons for the delay by Mr Smith in making this application, but I did not get an answer.
  3. The tribunal member takes the place of the CEO to enforce discipline under the act. In so doing, the tribunal will seek to define standards and issue warnings of the likely or possible consequences if those standards are not met.  To go back to the memorandum:

The primary function of the Tribunal is of course to enforce the law relating to discipline and to enforce and, as required, set standards.  It is part of this function for it to declare standards in the sense of saying what has to be done for standards prescribed by the law to be met.  The Tribunal has I think been of use on a couple of occasions in being able to declare what the position is in respect of standards, for example, the proper response to an alarm of fire.  In this way the Tribunal acts as a kind of audit on the processes in place.  The Tribunal itself may not be able to contribute much and it will all depend on the quality of the contributions it gets from senior officers.  It can also assist in monitoring these processes.  For example, issues have arisen in relation to counselling of members after traumatic incidents and protocols in relation to attendance at charity functions that I think received some useful examination.  Additionally, the Tribunal is in a position to lay down general guidelines in relation to the need for discipline in an emergency service which is subject to a command structure.  These are I think positive contributions that can be made by a tribunal which is seen to be independent …

Without wishing to harp on the point, it is a little difficult to envisage the Fair Work Commission performing those functions.  What if a firefighter belts an officer, or vice versa – can the culprit avoid being dealt with by the CEO under the act by invoking the powers of the Fair Work Commission?  Who decides what cases the CEO can take?  I was originally appointed as the delegate by a CEO who said that it was more important that he was ensuring that charges were in fact laid than that he personally should hear them.  I can now better appreciate his prescience.

Because of the history of these proceedings, and the fact that they have not been invoked much of late, I have in a number of cases felt constrained to say that although these particular defendants would not get the maximum appropriate penalty, the next ones would.  It is important that people understand that I meant those observations.  As an example, and it is only an example, someone found guilty in the future of refusing to obey an order would almost certainly be facing dismissal and could on no account expect anything like the extreme leniency shown in the only case to have come up so far.

  1. In my view the general comments of the tribunal relied on by Mr Smith come within the kind of guidance that people would expect from a body like this, and certainly in a body like the MFB, where people demand chapter and verse on every aspect of their working life, and protest very loudly indeed if something happens that has not been the subject of proper advance notice, in black and white, and in triplicate. It may be the most over regulated institution on the planet.  It and the union between them may be the most litigious combination in our nation.  As I remarked, Sir Daryl Dawson told me that he did a lot of work in demarcation disputes for these litigants in the 1960’s.  There is probably a real ghastly link between the overlays of regulation, and the lawyerism that spawns litigation and is now approaching its masterpiece here with something approaching forensic mayhem.
  2. Of course, neither the CEO nor I have the power or the will to lay down the law, and of course each case has to be considered on its merits. I see no reason why any member of the public would come to a different view in this case.
  3. It is in my view apparent that the comments made during the hearing were made with the knowledge and intention that they would be brought to the notice of Mr Smith. At least one was made to get him to appear or warn him of the possible consequences if he did not do so.  The examples of the evidence that I have referred to above will be enough to reveal why some of this material cannot be sensibly discussed in antiseptic terms.  Is ‘depraved’ too strong for some of this material?  The instance of American employers is one that would have to have been disclosed, and you would have to have come from Mars if you had not noticed a recent upsurge in public interest in cases of the misuse of public property for private or improper purposes.
  4. Since all the comments were made on the footing that eventually Mr Smith would appear or at least eventually get a hearing if he wanted one, they do not look to be in a different case to the kind of discussion floated in any adversarial proceeding. Fairness requires that if something is troubling a tribunal, it should put it out there – at least since a New Zealand royal commissioner found himself in the Privy Council for saying that he had listened to an orchestrated litany of lies – and he had not warned the alleged liars.
  5. And the fact that a tribunal has reached an opinion does not entail that the tribunal will maintain that opinion in the face of the contrary case. That proposition looks sound in both logic and principle.  It is also covered by authority.  In the second case I was referred to, Justice Hayne (at [186]) referred to the observation of a 19th century English judge that preconceived opinions do not necessarily constitute bias, and that even expressing such opinions does not constitute such bias, because ‘it does not follow that the evidence will be disregarded.’  That proposition in my view is central to this present application.
  6. It is not surprising that the tribunal would express concern at the repeated failure of any officer of the MFB to attend a hearing and at the reaction of taxpayers to the legal and administrative costs being incurred as a result of the apparently considered actions of this accused. The tribunal has to proceed on the footing that the person charged is responding with the benefit of considered objective legal advice.  (He had the benefit of one of Her Majesty’s Counsel yesterday.)  That being so, it may be appropriate to remind the person charged and his advisers of the potential consequences of choosing some course other than the cooperation that had been signaled by the concession by Mr Smith that he had engaged in offensive behavior in breach of the relevant policy.
  7. Any lawyer of any relevant experience knows that the kind of advocacy required before a professional or disciplinary tribunal may be very different to that generally practised by criminal lawyers or industrial lawyers. Elsewhere you may be able to claim the right to silence or to indulge in subtle or rough-house tactical warfare, but in a tribunal where the issue is one of professional character and trust, any such forensic manouevres may be at best dangerous.  Every now and then, such a tribunal may see fit to issue a reminder to that effect.  This tribunal has, sadly, had to deal with a lot of bush lawyers in the past.
  8. It may help to put this application in context if I set out other comments made in the course of the hearing that were not referred to in this application.

He might be able to get a rehearing here as far as I know, but he would certainly get one on appeal.

There are lawyers and lawyers … There are lots of bush lawyers.

Someone who gets vilified as part of his job at least understands what it’s like to be vilified.

The law had always been that if you use equipment of the brigade in such a way as to bring the brigade into disrepute or to make that possible, then you are breaching your obligations to the brigade.

That email [the fucking camels email] which is grievously insulting to people of Arab background, and to people of the Muslim faith could lead to real violence, couldn’t it? … This is eleven months before the murder of those journalists at Charlie Hebdo …  it’s been known for some time that people who mock Islam do so at their own risk. 

… it’s unlikely that there’s going to be a substantive issue as to whether or not the charges have been proved …

If he wants to have a lawyer here, he better get on his bike and have that lawyer instructed.

Am I to make anything of the fact that the lawyers have threatened one course of action and adopted another?

  1. No one knows how this case might unfold. Only one side has been heard.  The upshot will turn on the case presented for the defence.  It is a commonplace that one story is good until the other heard.  You can find remarks to that effect in the judgments of Sir Owen Dixon and in the Old Testament.  But that obvious fact is not the answer to the question now before me.
  2. The application on the ground of apprehended or objective bias as I see it has to be determined in the light of all the matters that would be known or inferred by someone who read the transcripts and memorandum referred to. Doing the best I can to evaluate the response of ordinary people in that position, I am very far from persuaded that they would conclude that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it.  On my knowledge of what goes on in the outer – Bay 13, to those who are old enough – or the terraces at the Storm, I don’t think people there would conclude that the tribunal was prejudiced against Mr Smith or that Mr Smith would not get a fair hearing when the time came for him to prevent his case.  Accordingly, in my opinion the application on behalf of Mr Smith fails, and is refused.
  3. Only God knows what the hypothetical observer might think if told what I have now been told. The tribunal got cranky with Mr Smith for not being there on day one, but Mr Smith was apparently under the impression that his federal application had sterilized the proceedings brought by the Brigade.  Then on the second morning, the tribunal member breezes past Mr Smith standing on the steps of Owen Dixon Chambers and thinks that he is looking remarkably serene for a man who has just a sabre rattled before him, but Lo!, Mr Smith was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned.  So the tribunal member gets even crankier with Mr Smith, and this time with the Brigade also.  And all because wires got crossed.  It does not bear thinking of how the man on the Storm terraces would respond to this sad tale.  It would not be printable here.  If he were told of the costs and the lawyers involved, then, in NRL terms, things could get really ugly.
  4. I have indicated that if I reached the decision that I have now reached, and Mr Smith wanted to challenge it in the Supreme Court, then I would expect to proceed with the hearing on Wednesday 13 May unless I was directed otherwise by that Court. It hardly becomes me to invite such a challenge, but it would subject a struggling and beleaguered statutory process to the cauterizing glare of public scrutiny by a superior court, and, if I may be forgiven the phrase, that may be just what the doctor ordered.
  5. It will I think be clear to informed observers that this tribunal, and perhaps this Brigade, has seen better days. This is, I think, the first case for about three years and just the second case in five years.  The sound and fury that now meets this rejuvenation of the process bears a sadly eerie resemblance to that which greeted the rejuvenation about twelve years ago.  Even some of the faces remain the same.  I make no comment on previous administrations, but it is clear to me that the present CEO and his staff are determined to fulfill their obligations under the statute, and to make this disciplinary process work.  I am equally determined to do all on my part to the same end, and I would hope that anyone with any interest in the Brigade has the same objective.
  6. I do not think I need give any other direction now. I am available on short notice through the administration if any direction is sought.  Otherwise, I will continue to hear the case at the time and place we have stipulated.

Geoffrey Gibson

Owen Dixon Chambers

7 May 2015

Appendix I

In case in the course of this small sea of litigious controversy, the charges themselves come to be heard by someone else, who might have difficulty understanding the forces that can generate this kind of tension, I set out below some extracts from the memorandum I have referred to above on the subject of class warfare that was so bad in 2003 and now, I fear, may be just as bad.  People reading this should not take it lightly.  I doubt whether people in government know the stress that these class wars put on those in head office.  That is why I have seen recurring turnovers in that office in my time.  People just give up and leave because they cannot stand it any longer.  This is an appalling human problem, if nothing else, and it does not reflect well on any of us that it has been suffered to go on for so long.

In the course of the hearing I heard a degree of evidence – again with misgivings about its relevance to me – about the extent of the industrial problems facing the Brigade, and the history of scabs in the Brigade.  Since I have heard all this evidence, I am going to say something about it.  It was not good to listen to.  The secretary of the union accepted that there had been a class war going on for ten years.  He said that the scabs in the 1950s carried the brand to their graves and so will the present lot.

Sharan Burrow [the ACTU President] does of course have the experience and standing to see this problem in its context.  You could not but be impressed by her conviction and her concern.  She said that the relationship between the MFB and the UFU is dysfunctional.  When 1 asked her what she meant by that, she said that there were elements of hatred that she had rarely seen – the word used was hate – although she thought that the contact was better at the operational level.

It is not surprising that things are so bad if as a result of a class war people carry brands to their grave.  They do not go gently into that good night – the innocents, as they see themselves on each side, will just rage, rage and rage against the dying of the light.  Both the MFB and the UFU will no doubt reflect carefully on the assessment of the ACTU President: she is uniquely placed to make the diagnosis.  In my own observation, the hate is not so much generational as tribal, and I have seen the faces of men on either side cloud over with puzzlement, anger or despair when confronted with it.

But I was repeatedly assured that none of this had any impact on the performance of the Brigade of its essential functions.  That is a proposition which, despite its august proponents, defies belief.  I do not know why the point was pressed, but it was, and I will deal with it.  I reject it.

***

Secondly, there is the evidence of common sense and common experience.  The MFB did not come from Mars.  It depends on co-operation.  How well do you co‑operate with someone you hate?  Until recently I was a partner in a firm that had a staff of 1,500 and a turnover in excess of $250 million (compared to a staff of about 2,300 and a budget of about $190 million for the MFB).  If I had been told that a whole line of thirty managers was hated by the staff under them, I would have been terrified, not just over the capacity of the firm to deliver its product, but to survive.  I am sure that 200 other partners would have felt exactly the same.

I cannot believe that the officers and firefighters of this Brigade deserve all of this.  This Brigade boasts of being a happy family and plainly it is not.  The people I have met are all decent people who would not wish to remain the prisoners of history.  They must believe that it is time for people on both sides to come out of the trenches dug in another century and to abandon a mind-set caste that surely has no place in this country.  It must be time for the hate to stop.  There are, after all, many who still believe that vengeance belongs to someone else; some see that proposition as a major premise of the new part of the major religious text in use in this country.

But even if it is correct to say that there is no evidence that the industrial strife impairs operational efficiency, as the union and the ACTU contend, does this mean that a corporation does not have to worry about industrial strife unless there is a measurable effect on productivity (a proposition not contended for by the union or the ACTU)?  Such a response would be a prescription for failure in the public or private sector, and it would in my opinion be wrong – quite possibly unlawfully wrong – for those responsible for corporate governance to proceed on that basis.  Something has to be done.

APPENDIX II

Mr Grace was at pains to point out that the allegation was not one of actual bias.  If anyone wants to know my views about the governance of statutory tribunals, or of the role of an advocate before them, or of my attitude to this tribunal in particular, they can find it in chapter 22 of a book called Confessions of a barrister.  It was published about twelve months ago on Amazon and Apple when this tribunal was quiescent.   For ease of reference, I append most of it here.

When I came back to the bar, I was looking forward to having time to do my tax cases.  My secretary, Lisa Mulcahy, who is as good a secretary as can be found, and who was both admired and feared by the press, had learned to expect the worst when I staggered back on a Friday at about 2.15 pm chewing on a Four ‘n Twenty, and desperate to get out a draft set of reasons that I could look at over the weekend.  Gone were the days when I would do the decision in my car while one daughter was at ballet at Essendon or the other was at horse-riding at Kew.  The pay was piddling, but that was not the point.  I was under pressure in the firm to drop the brief because it took a lot of virtually free time, but money was not the main factor.

Apart from a sense of professional obligation, and a curious kind of gratitude, the position might offer some standing and a platform for building a practice, together with arbitration, mediation, and legal advice on corporate and defamation issues.   I was about to publish my third book, Law for Directors.  (The first had been The Journalists’ Companion that succeeded an MUP book by Geoffrey Sawyer; the second had been The Arbitrators’ Companion.)  I certainly did not want to go back to court – it is just so frustrating watching others – but I was keen to continue the work in my little tribunal.  I was looking forward to a useful autumn.

I have referred elsewhere to the grubby little coup by which I was dismissed without notice after 18 years.  Two other members of the tribunal feared a loss of work in personal injury cases.  Without notice to me, the President, or the Revenue, they hijacked the Taxation Division.  The crown was as outraged as me – the till was in the hands of people who did not know what they were doing – but the President, a politically appointed judge who has since retired young, went along for the ride.  I prepared a writ against the government, but my friend and colleague Robert Heathcote advised me not to issue it.  I think that that advice was right, but it has left me with a sense of grievance that would do justice to a lapsed Irish Catholic member of the Australian Labor Party.

I referred my case to the Chief Justice.  That court has an historical role, one that goes back many centuries, for the way in which inferior tribunals are run.  That court is also the guardian of our administration of justice in general.  My complaint related to the administration of justice, and the crown was, if anything, as dirty on what was happening as me, and a justice of the Supreme Court was involved.  I was therefore saddened to get only a holding response from a court official, and no more.   I will not speculate on the extent to which the political nature of the appointment at either end may have led to this inaction, but I will say just one more thing about this body with this silly name and this most unfortunate reputation.  It is mainly staffed by part time or limited tenure civil servants, not judges – but we have a justice of the Supreme Court in charge of them. 

This is hopelessly wrong juristically and managerially.  We do not have judges running the railways.  We do not even let them do Royal Commissions – all for the reasons that they should not run VCAT.  It is just a matter of time until they hit a political fence, as happened here in the first Taxation Division – and tax is if nothing else politically sensitive.  You cannot have Supreme Court judges in a position where they may be sued, albeit in the name of the crown, for wrongful dismissal in managing part of the civil service.  And you are not going to attract good lawyers to the Thirds or Fourths.  The Supreme Court needs to get out of it; the position is not helped when the County Court sends down its cast-offs.

The last case I heard at VCAT showed what happens when inanity prevails.  A Sicilian migrant went from being a butcher to a baker – he did not like the cool room – and he astutely bought land in the corridor.  By the time he got to me, he was worth north of $40 million.  He distrusted lawyers and all professionals.  Was he now a farmer?  Someone had made directions for witness statements, which are anathema to me, and all the ghastly folderol indulged in by lazy judges.  The Sicilian filed a statement in impeccable English about trusts and companies.  The first thing he did in the witness box was to ask for an interpreter!  But he knew his occupation:  FARMER.  Since I thought that that answer begged the question, I asked the interpreter what was the Italian word for ‘farmer’ and he said there was none.

This sad little farce reminded me of Derryn Hinch not taking the oath before Peter Murphy.  Could lawyers possibly devise a better way of making a fool of their client?  Then I remembered a case where Julian Burnside successfully argued that a taxpayer had waived legal professional privilege by referring to his legal advice.  When I got to see the advice, my eyes nearly popped out.  The lawyers had put their clients up to outrageous whoppers.  Then I recalled a tax case that Bill Ormiston did as a junior while I was reading with him.  Bill was for the crown and the question was whether a man should be assessed on the capital gain on land he had bought in the corridor.  He said he had bought it for picnics and horse riding for the kids.  Sadly, his bank manager’s very full diary notes told a different tale – he told the bank that this was a rolled gold investment opportunity on which neither they nor he could lose.

I did try my hand in a comeback as advocate once.  That once was enough.  I acted for a cattle breeder who got thrown out of the breeders’ association.  His crime was to be smarter than those who threw him out.  He was keen for me to appear in the appeal, so I reluctantly did.  The appeal was a kind of arbitration conducted by my friend, the late Frank Costigan.  I thought I might go mad.  It went for three bloody days.  I never did find out what my bloke’s real ‘conduct unbecoming’ was.  Then Frank sat on the decision for weeks, and handed down a decision for which he charged six days’ preparation.  We won, but that was the end of advocacy – it was very bad for my blood pressure.

That left the Fire Brigade.  Their statute left the CEO to hear disciplinary charges.  The CEO wanted to be involved in laying them, not hearing them.  No one had been successfully charged for years, if ever.  I advised him to delegate those powers.  His lawyers said that he could not.  I gave different advice, which the Brigade accepted.  They asked who should do it.  I asked a retired County Court judge.  He accepted, but then declined when the government said that it would affect his pension.  The Brigade asked me to do it, and I accepted.

There was a far bigger mess than I had inherited in tax cases.  There was a kind of institutional industrial disease.  No one ever got to trial.  They would just put up some nonsense from a tame doctor.  They had to learn that nothing short of a vigorously cross examined doctor would get an adjournment.  As for ‘stress’, if someone was too stressed to come to us, we would go to them – I could just imagine pairs of eyes peering through the venetians as a cavalcade of police cars and fire trucks rolled up a street in Broadmeadows. 

The other problem was the lawyers.  I was copping the bush lawyer component of the industrial bar and the criminal bar.  I wrote a paper called ‘Bush Lawyers.’  They have an answer to everything except the question.  The industrial people were just away with the birds talking juristic nonsense.  The criminal people were into game-paying and head-kicking, and both blow up in your face in a disciplinary tribunal.

But the worst problem was the class war, something from another time or another place.  Sharan Burrow, then the President of the ACTU, and a most impressive woman, gave evidence before me in one case.  I was very relieved when she said that this was the most poisonous industrial relationship she had seen. 

One case involved an allegation of ‘scabs’, the most lethal word in the industrial lexicon.  We got into the third day – two too many.  Counsel for the union was cross-examining the investigating officer about the investigation.  How was this relevant?  The act says there has to be an investigation – before someone was charged.  That is hardly surprising.  Then the horror of it struck me – if counsel could show there had been no real investigation, he would then submit that the charge had not been properly laid.  This was the sort of nonsense that was being spruiked.  Pure bullshit.

During a break in play, I ran into the union secretary.  I said I could give him a quote.  He asked what I meant.  I said that if his bloke went down, I would not fire him.  The matter was all over an hour or so later.  I understand there may be problems with quotes, but something had to be done to stop this effusion of public money.

I told the Brigade that I would talk to the Union.  I thought that they should get to meet someone who had such power over their members.  I thought that management might try to nobble me and that fairness required that the union have an equal opportunity to try to do the same.  I had the secretary and president home to dinner, in what became a very boozy affair.  The secretary had a very big public profile, but he wanted me to be inspected by Sharan Burrow and a big mover in the Labor Party. 

In the upshot, the union bought into the process and managing the problem, and I felt as comfortable in talking to them as to management about general issues before the tribunal – such as trying to reduce the role of lawyers, and trying to stop ‘lawyerising’.  I told the union secretary at the beginning that there were only two rules – no verbals, and no discussion of individual cases.  He has observed both of those rules. 

I was invited to the annual dinner dance of the union at the San Remo Ballroom in Carlton after the then CEO had been dropped off the list.  He then rang me while I was in the bath listening to Haydn’s Nelson Mass.  He asked me not to go.  I said that I had accepted and that I had arranged to take a former articled clerk.  This was Karen Knowles who was also a singer.  This did not improve the humour of the CEO.  I later wondered why the firies were asking Kas for her autograph but not me.  Since then I have got on very well with both sides, which is as it should be.

The relative peace did not mean that I was not appealed from as well as getting sued in the Federal Court, the Supreme Court, and some curious industrial outfit, but nothing much seemed to come from any of my beneficence to the bar.

We got through the backlog, and established sensible ways to get through the business.  One morning I actually had a case with no lawyer on either side, and I am sorry that there is not more of this.  From time to time I would hear mutterings that I was not being hard enough.  I will just mention one case. 

A fire truck on display at a charity day for kids dying of cancer rolled over on TV and there was embarrassment and anger at Brigade HQ.  They charged the man driving – who had surrendered the wheel to a mate – and the officer in charge – who was nowhere near the vehicle when it fell over.  I saw no case against him and I dismissed that charge at the close of the evidence of the Brigade.  I had to give a suspension to the man who should have been driving – his name was Whelan.

During the hearing, I got them to take me for a ride on one of these vehicles with both counsel.  As we got going, we passed a handsome woman who had been in the tribunal room.  I was told that she was the wife of the officer who had been charged – and the mother of nine children!  When the hearing resumed, I asked counsel for the Brigade what penalty he would seek if the charges were proved.  Dismissal.  For both?  Yes.  I wondered how this would go down in the people’s daily – a fire brigade officer, with a stainless record after 20 years, and the father of nine children, had been fired for giving of his spare time to attend a charity for kids dying of cancer, for an accident that he had nothing to do with.  I also wondered how long it would be before the comrades returned to work.

The case of Mr Whelan was hardly less interesting.  He had grown up with the guy that he gave the wheel to.  They had been garbos together.  They had both therefore had experience in driving large heavy vehicles.  But while Whelan went from being garbo to firie, his mate went into business and became very successful and very Smith.  He also became committed to charities.  He gave evidence before me, and he was very impressive. 

I met both these guys twice later.  One was at a football presentation that the union had invited me to.  (It was a VFL function; the comrades are not toffs.)  The secretary was late – as usual.  I was directed to a table.  The guy next to me asked if I knew who he was.  No, mate.  It was Mr Whelan!  I cursed the secretary for being late, but Mr Whelan and his mate (the charitable ex-garbo) and I got on very well. 

The second meeting was at the greatly favoured San Remo.  It was a packed house.  It was a living wake held in honour of Mr Whelan before his expected death from cancer.  I told him that I was honoured to have been invited, and I meant it.  It was a very generous and decent gesture of both Mr Whelan and his mate – and the union.

Otherwise, now, I enjoy giving legal advice to Black Inc, which publishes The Monthly and Quarterly Essay, and books, including, I hope, one written by Jeremy Cooper and me on superannuation.  I have had five books published, and I have about ten on the rack that I want to get out in one way or another.  I dedicated my most recent book to the memory of Jim Kennan. 

Cliff Pannam has written as much as me, and probably has a similar sales record.  Sweet Fanny Adams.  I may suggest that we jointly get on a sure fire winner, the shortest legal text-book ever:

Gibson and Pannam

On Gift Duty

From Beginning to End – In One Line

Advenit.  Venit.  (It came and it went.)

Since Cliff is just coming off the high of the trifecta in the Melbourne Cup, our luck may be in.

I also appear to be at risk of developing a practice in acting for members of the clergy.  These cases are likely to be even more sensitive than claims against lawyers, because you may have a difference in vocation that is literally out of this world.  I have been appalled at some failures by a church to stand by their man because they thought that their ‘brand’ might be impugned.  These cases, like discrimination cases, can be both sensitive and hard.  I am most grateful for the counsel of Peter O’Callaghan in these – Peter’s contribution to our community, not to say our profession, is simply and sadly not understood by what passes for our press.

If I had my time again, I do not think I could ask for more than what I have been given this time around, but so mighty is my regard for people like Oliver Wendell Holmes, Roscoe Pound, and F W Maitland that I would like to have been a legal or constitutional historian.  As it is, I look forward to my thirtieth anniversary of hearing cases, and I see no reason why I should not just keep going in one way or another.  Retirement looks decidedly off.

Living with Terror and I S – Part I

 

 

What would it be like to live under I S?  From what we know it is a police state run by fanatics by applying terror.  That describes France under Robespierre, Russia under Stalin, and Germany under Hitler.

Terrorism is a broad church.  There are arguments now about labels for killings by fanatics, if not lunatics, who appear to judge and hate people by applying labels to them.  That very circle should make us wary about applying labels to the culprits.  The recent atrocities in the U S and the U K could be described as crimes of hate – if you go in for labels.  The U S attack was immediately described as ‘terrorist’; the U K attack was not.  How significant was the religious claimed affiliation of the first culprit?  How different might be the degrees of mental illness of the two culprits?

In a book called Terror and the Police State, Punishment as a Measure of Despair (Amazon, 2014), I sought to look at aspects of terror in the three regimes mentioned above – involving two of the most civilised nations in the world.

What is terror?  Terror is extreme fear.  If I feel terror, I feel an intense form of fear.  When we talk of ‘the Terror’, we speak of a government that engages in terrorism – it pursues terror (or extreme fear) – for political purposes.  Some people think that terrorism has only recently become a big issue.  They are wrong.  It is as old as humanity.  The book of Genesis is full of it, with God taking an active part in many forms of terror and with terrifying results, as you would expect from a being that is all powerful.  The Oxford English Dictionary says that terrorism is ‘government by intimidation’ and a ‘policy intended to strike with terror those against whom it is adopted’.  The first instance of terrorist in the Oxford is ‘applied to the Jacobins and their agents and partisans in the French Revolution’.  The editor might just as well have referred to the Russian and German examples that we will come to, but in all such cases, including the Jacobins, the terrorists were people in the government.

Except for a limited form in a black hole like North Korea, we do not see terrorism much in government now, at least not in a form that governments own up to.  Some might see the killing of suspected terrorists on foreign soil as an instance of terrorism in itself, but the answer to the question will depend on what side you are on and where you are standing.  If you have just seen your family obliterated by a drone sent by a regime that you regard as being as evil as it is faithless, you will see yourself as a victim of terrorism that entitles if not requires you to respond in kind, and just as randomly.

We still plainly see terrorism in those who try to bring governments down and in religious fanatics who want to achieve either that objective or some other religious purpose.  At the time of writing – in mid-2014 – some fanatics under the label IS are pursuing terrorism to create an Islamic state.  One of their ways of inducing extreme fear is by cutting people’s heads off in public.  This was the preferred mode of terrorism employed by the Jacobin government in France just a few years after the white people from England set up their first colony here as a jail.  The French preferred the guillotine because it was more humane and more efficient, although, as we will see, circumstances would drive them to look for quicker ways to kill, as would be the case with the SS in Germany.

What we see now is people who kill for a belief.  These beliefs confer total certainty and demand total obedience.  These killers kill for a belief that excludes tolerance for any contrary belief and any diversion or softening on other moral grounds. ‘I believe – therefore I kill’.  Credo ergo caedo.  They become what might be called credo killers.  They are prepared to kill and die for a belief because that belief means more to them than life itself – or at least this life.  The promise of eternal life is a real killer.  How do you deal with a religious fanatic who wants to die and who only gets worse in prison?

I propose to post extracts about terrorism from that book.  The role of terror in police states will be looked at under some or all of the following headings: Degradation; Scapegoats, suspicion, and proof; Surveillance; Denunciation; Fear; Popular courts and show trials; Propaganda, religion, and cults; Banality and the surreal; and The Horror.

You may be surprised just how much of the form and substance of the horrors of the twentieth century were prefigured in France at the end of the eighteenth.  We need to get a more balanced view of what ‘terrorism’ means.  There are of course differences between the terrorism practised in the three regimes dealt with in the book, and terrorism practised by bodies like the IRA, KKK, or I S, but there is also the risk that in responding to terrorist bodies like those, we undermine our own political and legal welfare, and we then head toward becoming a police state ourselves.

Here is the first such extract on degradation, and a nation does not have to live under terror to degrade itself.  Just look at Donald Trump.

Degradation

When Descartes famously asserted as the irrefutable basis of his metaphysics ‘I think, therefore I am’ – Cogito, ergo sum – some people of an acute philosophical bent may have ventured that the word ‘I’ might have to carry a lot of weight for that proposition to be sufficient to build a whole system on.  If you assume that you know nothing, what might I mean?  Well, that sort of thing might be OK in metaphysics, but it means nothing to most people.  But according to Arthur Koestler in Darkness at Noon, it meant something to his principal targets, the Communists in Russia.  There the secret police say that the word ‘I’ is ‘a grammatical fiction.’

It is not surprising to hear this asserted in a totalitarian state.  The whole object of such a state is to ensure that the individual – the owner and the professor of the word ‘I’ – does not get in the way of the state.  For them, the state is everything, and the individual – the ‘I’ – is nothing.  The sense of self, or a person’s sense of worth – their dignity – is degraded in so many ways.  Representatives of the state or the party belittle people.  The very emptiness of the system and its slogans and symbols reduces people in their own eyes.  Do decent people, even the most incurable addicts of Wagner’s Ring Cycle, really want to bow down before a broken cross, lightning runes, or a death’s head?

And people hear of or see things which debase or degrade them further.  They hear of things that revolt them, and they go into blank denial.  But they see or hear of things that make them complicit in a denial of truth, decency, and even life.  A combination of terror and propaganda plays very ugly games with their minds, and they feel changed and demeaned.  This in turn lowers their inclination to object, and so the downward cycle progresses, sometimes to the finite regress of suicide if the state does not get there first.  By then they have bought into or they have been locked into crimes against humanity that would previously have been unthinkable to them.  These regimes want to reduce their people to their level.

We associate the grosser forms of that cycle with Communist Russia under Stalin and with Nazi Germany under Hitler.  It can give you a jolt to see the same forces at work in France during the Terror in 1793.  Here is a long extract from Les Deux Amis (Two Friends) a primary source of major phases of the revolution in the form of a witness account that Carlyle was fond of drawing from.

A resident of Paris returns after ten months away.

So there I was packed into a stage coach surrounded by sinister faces, for at that moment, none but revolutionaries and government agents dared to move about.  My mind was filled with the darkest presentiments and every stage on my way to Paris seemed to bring me nearer to the scaffold.  As I thought of my wife and my children, I reproached myself for having left them so rashly and for not having embraced them yet once more before we parted.  During the whole journey, the sight of a rock, an agreeable bit of landscape or a tree noticed by the wayside stamped on my mind a melancholy impress, which I cannot describe.  I cherished a wish to see them again on my way back, saying to myself: ‘If I see them again, that will mean I have got out of Paris, and if I get out of Paris I shall see my wife and children once more.’

Just before reaching the modern Babylon, we changed horses and I got out to stretch my legs.  I tried to banish the painful thoughts that haunted me, and went into an inn with the object of eating something if the burden of worry which oppressed me allowed me to do so.  Sitting down at a table I picked up a newspaper lying there and, glancing over it, was instantly struck by a news item describing the execution of a man – a good man and one of my friends.  He had been a notary and in that capacity, he had countersigned without reading it, as was the practice, a document whose contents were unknown to him.  The Bloody Assize had condemned him to death.  His hair had been cut and he was waiting to be executed, when he was snatched from the Guillotine to have his case examined afresh.  The Convention had ordered this humane intervention, but the court presided over by Fouqier, who did not wish to be thought capable of condemning an innocent man, had the victim dragged to the scaffold and beheaded.  And so Chaudot, a good, honest man, had the misery of drinking twice over the cup of death.

I was overwhelmed by this story.  My strength failed me.  I wanted to eat but could not get anything down.  I raised a glass of wine to my lips, but had not the heart to drink.  I hurried back to the diligence, where I remained plunged in a mood of the deepest melancholy from which I was aroused when one of my companions cried: ‘Here we are at the barrier.  We’ve arrived.’  These words took me out of my lethargy, but they made me shudder.  I put my head out of the window.  It was dark, though it was scarcely eight o’clock.

What a change!   Formerly – even when I left the city not so long ago – eight o’clock was the hour when Paris was most brilliantly illuminated, especially in the populous quarters.  The light of innumerable street lamps blended with the blazing windows of the shops, where art and luxury had accumulated thousands of objects which vied with one another for elegance and value.  It was the hour when the cafes were lit up and when the gleam of candles shone from every storey; when luxurious equipages passed one another swiftly in the streets on their way to theatres, concerts and balls in every quarter of the capital.  Now, instead of this bustling life, these animated crowds, this impressive brilliance, a sepulchral silence filled all the streets of Paris.  All the shops were already shut, and everyone hastened to barricade himself in his own home.  One might suppose that the weeds of mourning had overspread all that breathed.

He got off at the coach terminus to go to the house of a friend.  A sentry at the door took his packet off him because he should not carry anything at night.  He was told to get it the next day from the guard-room.  He set off for his friend whom he had not seen for 18 months.  His friend had ‘turned Jacobin as a form of insurance’ and thought more of his own safety than of his friends.

It was nearly nine o’clock when I knocked at his door.  This would not have been thought unduly late in normal times, but as it was, my knocking at the door at such an hour caused a panic among all the people who lived in the house.  Domiciliary visits [raids on houses] were usually carried out at night and most of the crowd of citizens who thronged the prisons had been arrested after dark.  The sound of a hammer caused every hearer to tremble, and my former friend seemed to be particularly alarmed when he saw me come into the house.  Without asking after my health or inquiring what had happened to me and why I had come to Paris, he gave me to understand in curt, clear language that as I had left Paris some time back it would be dangerous for me to stay in the city and for him to offer me shelter.  ‘What?  It would be dangerous for me to stay the night?’ I asked.  ‘Yes it would’ he replied, ‘if they came now to search the place, I would be a lost man.’

His friend had the courage to take him to a fruiterer who had a room to let, but the fruiterer would not take him at this hour, and his friend left him, warning him not to stay long on the pavement, unless he wanted to be ‘picked up by one of those patrols, who were usually reluctant to release persons who fell into their clutches.’  He went back to the fruiterer again who said that he had gone to bed early because he could not get candles in Paris.

‘Of course you have your passport?’  I said I would show it to him.  Before reading it by the light of the lamp, he eyed me intently.  ‘But this passport is not signed by the revolutionary committee of this section.’  ‘Yes, but I have only just arrived.  The committee is not in session this hour and I cannot get them to sign it tonight.  Give me a bed for tonight and tomorrow I will get up and I shall go and get the visa.’  ‘Impossible.  Impossible, if they came tonight, and they visit furnished lodgings every night, I should be put in prison for having taken you in without your passport being duly visa-ed by a revolutionary committee.  So, my dear sir, out of my house you go and at once.’  And suiting the action to the words he slammed the door in my face as civilly as my friend the Jacobin had done not long before.

Our hero is now seriously alarmed.  He crosses important streets without meeting a soul.  He hears a sound and huddles in a carriageway.  Two files of pikemen (people carrying lances) are ‘escorting in their midst a carriage with windows closed, doubtless to silence the cries of the persons inside.’  They stopped outside a monastery now serving as a prison.  The person in the carriage was a woman.

‘Inhuman monsters, after murdering the father, must you tear the mother from her children!  No, I will not get out – you may kill me first.  My own child whom I nursed.  He will die.  No… I will not get out.  Oh, well, I will, but give up my child, my child….my child.’

The guards pulled her out and threw her into the prison.  Cold rain was falling.  He stayed two hours there in the cold, but at midnight his feet were cold and he was shivering.  He moved and was instantly seized by a patrol.  They took him to the coaching-office to check his arrival time.  The register and package proved his story, and he was allowed to fall asleep on some parcels.  When he woke, there was another employee there.  He decided to abandon his mission to Paris.  He asked when the next coach left.  There was one at eight!  He reserved a place, got a receipt, and went to a coffee house for some breakfast.  He got into the coach to be sure of his place.  The horses were put in.  A policeman asked if their papers were in order.  He showed his receipt.

Don’t want that!’  ‘What do you want?’  ‘Your passport.’  ‘Here it is.’  ‘You must get out.  You are not in order.’  ‘What do you mean?’  ‘This passport has not been countersigned by the revolutionary committee of the section in which you lodged.’  ‘Citizen, I did not take lodgings anywhere.  I arrived at seven and finished my business at eight.  I spent the night in this office and now I want to go.’  ‘Never mind about your business.  No one can leave Paris without having his passport visa-ed by a revolutionary committee.  The orders of the Commune about this are perfectly clear.  The committee may be in possession of details about you and it is proper for you to show your face to the persons charged with proving your identity.’

He got out.  The coachman ill-temperedly whipped his horses and took off with the price of the seat and his small parcel of clothes.  At least in daylight, he was able to get into a lodging house.  He asked his hostess in what section he was so that he could get his passport visa-ed.  She told him where to go and not to come back without a visa.

I then set out.  Daylight and the sight of many people moving freely in the streets restored my nerves to some extent and I walked boldly on my way when suddenly I was struck by a curious medley of colours which I had not been expecting.  All the doors and all the windows carried a flagstaff on which floated the Tricolour [the French flag].  A few patriots, more republican in spirit than their neighbours, or wishing to be thought so, had hoisted this banner and from that time onwards, as it was dangerous to be less patriotic than anyone else, everyone had decorated his windows with tricolour streamers and large coloured inscriptions.

He easily recognizes the office of the committee from the size of the flag, and the proportions of the red bonnet (mandatory attire for sans-culottes) ‘and the hang-dog appearance of the men on guard at the entrance.’

My heart beat but I walked in.  I could have imagined myself in the cave of Cacus [a famous robber, three-headed and vomiting flames].  After crossing a little courtyard, narrow and dark, flanked with high walls, in which were collected an assortment of cut-throats armed with swords and pikes, I went up a squalid staircase at the top of which was an anteroom, leading into the room in which the Committee held its meetings.  This anteroom was crowded with creatures even more hideous than those whom I had seen in the courtyard.  It reeked of pipe-tobacco, brandy and meat [all impossible for others to get], aggravated by the heat of the fiery stove, which had a sickening, suffocating effect on anyone coming into the room out of the fresh air.  ‘What do you want?’ said one of these horrible individuals as he gulped down a cupful of wine.  ‘I have come to get my passport visa-ed.’  ‘Go into the room then.’  It was the room in which members of the Committee were sitting.  I went in.  It was worse than the anteroom.  There was the same foul stench, the same bunch of brigands, but those in the Council room were more insolent than the others.  They wore the rags of a feigned poverty, but they had hearts of steel and the mien of tyrants.  From top to toe, nothing could have been more disgusting than their personal appearance.  As sans-culottism had been promoted to a virtue and as the people, so far from displaying the trappings of luxury, had thrown themselves into the opposite extreme, these individuals affected a squalid poverty.  At that time in Paris dirtiness was a sort of passport…

He describes the shocking attire, shirts open to the waste, of

….these impudent bullies, brutes raised out of the slime, where they had won notoriety by their deeds of violence.  To crown it all, they assumed in the midst of their filth, a veneer of antiquity and gave each other Greek and Roman names which they disfigured grotesquely as soon as they began to address one another. ‘That’s a job for you, Manlius; you’re a clever cove, you’re one of ours.’

They were getting police to affix seals on property of people arrested the night before.

After these honest fellows had whispered together for a while and the stickers-on or removers of seals had gone off on their mission with one of the members of the Committee, the Chairman graciously took notice of me.  ‘What do you want?’  ‘A visa for my passport.’  ‘Where do you come from?’  ‘Blanktown’.  ‘Full of aristocrats.’  ‘You are mistaken, citizen.’  ‘Who are you calling vous?  It’s only Pitt and Coburg who use the vous.  In a free country one has to say tu.’  ‘Citizen, next time, I shall not fail to do so.’  ‘What have you come to Paris for?’  ‘To get some money from a gentleman of my acquaintance and go home again.’  At the word ‘gentleman’ which I had let slip in my confusion there was such an uproar in the Committee that I seriously thought that I was done for and that they were going to imprison me.  ‘Ah…..you have come to see a gentleman.  So…..you must be a gentleman yourself.  Just look at this fellow, Brutus.  Does he not have the build of a federalist [a very vague term for anyone against the Jacobins]?’  ‘I, citizen?’  ‘You be quiet and bring us your witnesses so that we may see if they look as suspect as you do.’

There is no point in asking what witnesses?  He went back to his landlady.  She explained that witnesses were guarantors – if their subject defaulted they would be arrested.  Where in Paris could he find two people to take that risk, when all forty-eight sections were competing to slap as many as possible behind bars?  His landlady directs him to someone who will do it for a fee.  He has trouble finding the place because the streets have been renamed after heroes of the revolution.  He finds the place and the wife says her husband has gone off to the Place de la Revolution to see a ‘score and a half [30] of aristocrats sneeze into the sack.’

That was the phrase for the amputation of heads, which, severed by the blade of the guillotine, fell speedily one on top of another into a kind of basin, where they floated in blood, which splashed up as the heads dropped, and flooded the pavement of the place directed to these daily butcheries.

The wife had advised her husband not to go for such a small batch, but when he returned, he said it had been a great pleasure ‘as he had never laughed so much.’  The valets to the executioner and the coachman of the tribunal warmed the crowd up with a burlesque show that was hilarious and which the husband still exploded in recollecting.  It was of course a capital offence to show sympathy for the accused.

‘By God’, he said, after concluding his narrative, ‘these dogs died very bravely.  It’s unfortunate that the aristocrats die like that.  In this batch there was a little pullet of from seventeen to twenty, as fresh as a rose, who climbed up on to the platform as gaily as if she were going to dance a figure from a quadrille.’  ‘Seventeen to twenty was she?  That’s early to start being an aristocrat.’  ‘You’re right’, said my companion, ‘but those people drink federalism with their mother’s milk.’

There you are – you have it, in the very first sentence of the extract.  He is surrounded by ‘sinister faces’ and in a binary or black and white world, only two types of one group matter – revolutionaries or government agents.  He is full of apprehension in this strange, hard new world.  He feels guilty for leaving his wife and children.  Will he see them again?  How different is Paris – muted, sombre, deserted at night; even the street names have changed (and they are named after some awful or dreary people).  He reads that a friend has been executed – most cruelly, and for nothing.  He calls on another friend who has become a terrorist (Jacobin) for ‘insurance’ and who is terrified to be seen with him and who cannot get rid of him soon enough – the agents raid homes and make arrests at night.  He sees that everyone has been frightened into showing support for the terrorist regime, and he reflects on the mindless banality – the spectral hypocrisy! – of their slogans.  He has to deal with regulations that make Kafka look easy.  You cannot comply with these Byzantine laws.  No one will take him in.  Everyone is scared.  He sees police patrols in action – he has been warned not to get picked up – and he hears the anguish of a mother with a child who is another victim of the Great Terror.  It is a random and capricious world of heartless and mindless cruelty to people.  How did it all come to this?

Then he has to come face to face with the regime, dirty, rotten people way above their station wreaking revenge on their betters.  Now he feels the full weight of Hamlet’s insolence of office, the proud man’s contumely and the oppressor’s wrong – those things that Hamlet thought of when contemplating suicide.  He is offered a corrupt out – most police states are rotten to the core, and give an out to those who can afford it.  A person will attest to him for a fee.  But this man keeps laughing about the entertainment offered before the daily batch of the guillotine (only twenty-five, so small a batch that his wife did not think that it was worth his time).  He reflects on the public beheading – sneeze into the sack – of a blithe seventeen year old girl.

All this takes place at the end of a century of what we are pleased to call the Enlightenment in Paris, perhaps the most civilized city in the world.  Even allowing for some journalistic licence, how did the people of Paris become so degraded?  How is it that a civilized French couple could sit down for dinner and happily swap notes about peoples’ heads being cut off in public and dropped into a bucket of blood, splashing the pavement?  Was Dickens’ picture of the Terror and the Tricoteuses underdone?

Most people reading this will have experienced countless examples of rudeness and nastiness of people in power, but very few will have experienced it under a regime that has no conception of the rule of law, due process, or basic human rights.  It is precisely that void, which seems to bring with it a general moral vacuum, that is of the essence of a police state.  It is that which makes such a state so frightening and revolting – and degrading.  There is no answer to the questions raised above – at least not one that is available down here – but we may seek to look at some features of the Terror practised in France, Russia and Germany.

In some accounts of the Russian Revolution, you can find a hideous photo of a kind of crucifixion practised in the civil war.  The Reds have taken a Polish officer, stripped him, hanged him naked upside down, and then beaten, cut and tortured him until death.  About twenty red soldiers are standing around looking sedate and only mildly interested.  In the catalogue of the museum Topography of Terror at what used to be Prinz-Albrecht-Strasse, the headquarters of the Gestapo, there is a photo taken from a distance in the market square at Ulm in 1940.  A nineteen year old woman was being publicly shaved because of a relationship with a French P O W.  She was later sentenced to one year’s imprisonment and two years’ loss of civil rights.  Someone had objected to this brutal humiliation.  The caption in the press was ‘Thousands of faces expressed mockery and disgust.’  In fact the photo up close shows people laughing and smiling as if their team had just won in football.  It may be the most appalling photo in the book.  You are watching people degrading themselves.

There is also a photo of SS guards and female administrative personnel at Neuengamme concentration camp in December 1943.  There are more than a hundred seated at well laden tables under the runic slashes of the SS in what the SS called a ‘Yule celebration’.  With all the red and white wines and the holly and the napkins on the tables, there were ‘Yule lights’ produced by the inmates.  This photo, too, is appalling in its own way.  Not one person is smiling.  They might as well be dead.  Their degradation has brought them to the Kingdom of Nothingness.

Degradation by its nature tends to occur over time and often so that people are not aware of how they are being changed for the worse.  The career of a man called Simonov took off during the Great Terror of 1937-1938.  On his death-bed in 1979, Simonov dictated a testimonial that was remarkable for its candour and insight.

To be honest about those times, it is not only Stalin that you cannot forgive, but you yourself.  It is not that you did something bad – maybe you did nothing wrong, at least on the face of it – but that you became accustomed to evil.  The events that took place in 1937-8 now appear extraordinary, diabolical, but to you, then a young man of 22 or 24, they became a kind of norm, almost ordinary.  You lived in the midst of these events, blind and deaf to everything, you saw and heard nothing when people all around you were shot and killed, when people all around you disappeared.

People becoming ‘accustomed to evil’ might be close to the heart of the darkness confronting us.

A duke of dark corners

 

Last night I watched again Orson Welles’ Chimes at Midnight, and the 2006 film of Measure for Measure.  The latter is, among other things, a play about bad government, by a duke of dark corners, and someone he gets to do the job in his reputed absence.  He has not done his job as ruler for a long time, a very long time:

We have strict statutes and most biting laws,

The needful bits and curbs to headstrong weeds,

Which for this fourteen years we have let slip,

Even like an o’ergrown lion in a cave,

That goes not out to prey.

The result?   There ‘goes all decorum.’  But when the substitute mounts a drastic crackdown, then, in the words of Milton, ‘all hell breaks loose.’  But this paragon of ice-cold virtue – when he makes water, it is ‘congealed ice’ – is in turn corrupted.  He seeks to suborn a subject.  The protest contains these lines:

O, it is excellent

To have a giant’s strength; but it is tyrannous

To use it like a giant.

And –

… But man, proud man,

Dressed in a little brief authority

Most ignorant of what he’s most assured,

His glassy essence, like an angry ape,

Plays such fantastic tricks before high heaven

As make the angels weep; who with our spleens,

Would all themselves laugh mortal.

The film is not for the purist.  It is pared back to the bone to raise the issues with the pungency we associate with Greek tragedy. The play is notoriously difficult to put on.  The comedy sits very edgily with the drama.  The film deals with that problem by deleting almost all the comedy, and leaving out Barnardine and most of Lucio (who was hilariously played by Richard Piper in an MTC production years ago.)

I have forgotten what a whack this play can give, and how instructive it is about what happens when the law is not applied or abused.

For those who might be interested, which should include all lawyers, I said the following about the work elsewhere.

MEASURE FOR MEASURE

THE ABSOLUTE LAW AND A DUKE OF DARK CORNERS

Sweet sister, let me live.

More than our brother is our chastity.

 

The most morally charged of the plays of Shakespeare is Measure for Measure.  It keeps putting up moral questions for the judgment of the jury constituted by the audience.  It is therefore ironic that the title of the play comes from that part of the Sermon on the Mount that instructs us not to judge lest we be judged.

The ruler of Vienna has not enforced its strict laws relating to sex for fourteen years.  Sexual licence is rife, with the consequent diseases.  The ruler decides to stage an absence and appoints a strict, ‘precise’ deputy to enforce the laws.  The ruler, the Duke, looks on disguised as a friar.  The deputy, Angelo, sentences a young man, Claudio, to death for getting a young woman pregnant.  The crime is fornication.  The sentence is legal but inequitable.  The sister of the condemned man, Isabella, pleads for his life.  Angelo becomes infatuated with her, and offers to spare Claudio if she goes to bed with him.  She is revolted, the more so when Claudio thinks that this may not be too high a price for his life.  The disguised Duke somehow manages to save the day by deceiving Angelo into believing that he has bedded Isabella and executed Claudio when neither is the case.

The play is said to be a ‘problem play’.  These plays give us an uneasy and unvarnished look at our dark side, our mean side, our low side – our ordinarily low side, not our tragically failed low side.  If this play were a painting, we would say it was a painting with ‘edge’.  If properly performed, which it rarely is, it is as entertaining a play as this author has left us.

The most obvious political lesson of this play is one that we did not need Shakespeare to teach us.  All power corrupts; absolute power corrupts absolutely.  The Duke invests power in Angelo as a kind of test or experiment:

… Hence we shall see

If power changes purpose what our seemers be (1.3.53-4).

The Duke gives his deputy ‘absolute power’ (1.3.13) and Angelo is corrupted absolutely.  This is corruption in the pure sense, because Angelo uses his position to extort personal advantage, or at least he tries to do so, and in so doing betrays the confidence placed in him and acts against the interests of those whom it is his duty to protect.  By offering to spare a criminal in return for a night of lust, Angelo betrays his own view of justice which requires him to:

… pity those I do not know

Which a dismissed offence would after gall (2.2.101-2).

Justice is for sale.  Within days of his appointment, Angelo is reduced to the level of a judge in Indonesia or Russia.  He also reminds us of those US politicians, and J Edgar Hoover, who launch crusades against gays while propositioning young male members of their staff.

Nor should the Duke have been dismayed.  Angelo could have been carved out of stone.  (Lucio is a little more crass.  He  says that when Angelo makes water ‘his urine is congealed ice’:3.2.113.)  Angelo is a man of ‘stricture and firm abstinence’ (1.3.12), a ‘precise’ man who ‘scarce confesses that his blood flows’ (1.3.51-2).

This, then, is a cruel experiment on the part of the Duke, to get this precise, prim piece of work to bring the boom down on the gay blades and knock-shops of the suburbs of Vienna.  It would be like sending a lay Baptist preacher to clean up a speakeasy in Chicago in the twenties, or the principal of St. Catherine’s to correct the language of drinkers on the terrace at The Storm.  They would be lucky to be offered the alternative of a brown paper bag or a baseball bat.

When the Duke told Angelo of his appointment, he said that ‘mortality and mercy in Vienna’ lived in his ‘tongue and his heart’ (1.1.44-45).  The Duke was more than flirting with veracity here, since he knew very well that Angelo, the precise Angelo, would always be longer on mortality than mercy.

The failure of governance, as we would now call it, which gave rise to this problem in Vienna was twofold.  First, Vienna had made laws relating to morals – in particular, sex –  that were too strict or ‘biting’ to be adhered to by a large part of the people.  We have seen this in our time with laws on abortion.  The result is that the laws are not enforced according to their terms.  The result then is that the operation of the law depends not on its own terms, but on the workings of functionaries.  That is, the laws become political questions rather than legal solutions.  We can see this when a Bill of Rights is stated so absolutely that its meaning and effect has to be determined by an unelected body, the judges.

We saw this also in Australia with capital punishment.  The law imposed the death penalty for murder, but for about fourteen years – the lapse of time referred to in the play (1.3.21) – the sentence was commuted.  When a government broke that custom and went ahead with an execution on the grounds of its own dictation, and not those of the law, it was in the eyes of many guilty of murder.

And so it would have been in Vienna.  The Duke knew that it would go badly for him if he just sought to enforce the laws out of the blue – this would be seen as ‘tyranny’ (1.3.36) – which is precisely what it would have been, a capricious reversal of fortune at the whim of the government, unfounded in the laws of the city as custom had rendered them.  It does not cease to be tyranny merely because the governor, wanting the courage of his own convictions, ducks for cover and appoints a deputy.  And not just any deputy.  Old Escalus would have been shrewd and warm enough to have been malleable, but the precise Angelo was going to be anything but malleable.  He was always going to be ‘absolute’.

And so Angelo finds that it is his turn to play the part of that most dreadful threat to a sane and sensible judiciary – the tyro judge who will be the new broom and clean out the stables, which he looks down upon so absolutely, according to his own preconceived ideas – his agenda, if you prefer – and to hell with the consequences.  These interruptions happen about once in a generation – this is our doom – and the crowd correctly says that the people responsible are mad.

 

This threat of government by men rather than government by laws pervades the play.  The corruption of Angelo leads him not to apply the law.  He had resisted the pleas for mercy by Isabella, saying that it was not he but the law that condemned Claudio (2.2.80).  That simply begs the question on the power to commute or reprieve, in the same murderous way that Sir Henry Bolte did when he refused to commute the sentence on our last hanged convict in Victoria.  Isabella correctly observes that Angelo could pardon the prisoner ‘and neither Heaven nor man grieve at the mercy’ (2.2.50) and all Angelo can do is to say – again pointlessly – that the plea comes too late.

Isabella then warns Angelo against abusing his strength by abusing his power (2.2.108).

Now, laws are administered by people – laws do not administer themselves.  But people administering the laws must act according to the laws.  It may be that the only safe way to neutralise the corrupting effect of judicial power is by having a jury of people selected at random from off the street (and we are in the process of getting rid of the jury).  Otherwise you are left with the problem of every ‘pelting petty officer’ using ‘Heaven for his thunder’.  While Angelo is behaving like a swine, the author puts pearls before him.

… But man, proud man,

Dressed in a little brief authority

Most ignorant of what he’s most assured –

His glassy essence – like an angry ape,

Plays such fantastic tricks before high Heaven

As make the angels weep … (2.2.117-122)

These deathless words should be cast in marble in every court in the country.

The fall of Angelo might be a tragedy in the traditional sense.  As a result of his ‘firm abstinence’, he has wondered how men might fall for women (2.2.186).  Now he knows, and he finds himself on a knife edge.  Having sat on his humanity and suppressed his nature, he found it was time to unlock the gorilla.  We are now sickeningly familiar with the sequence and the consequence.  Whatever else strict abstinence has done for Angelo, it has not left him well balanced.  He is a victim of his own flight from life – of his own virginity.  Are we still so unbalanced – so prejudiced – that we do not say the same for Isabella?

So, the play has touched on two problems that arise when we sit in judgment on others.  What right do we have to set ourselves up to judge others when we are all afflicted with the same frailties?  How do we protect ourselves from the title of one source of this play, The Corrupt Magistrate?

The fault of this Duke has not been just that he has not enforced the laws for a generation.  When he has sat as a judge, he has been one of the two-speed sort – nought and flat out.  With the Duke, it was all or nothing – freedom or death (4.2.136).  This is the worst kind of judge.  There is no law, only the digestion or humour of the official posing as a judge.  Appearing in front of a judge like this is like hitting a tennis ball against a brick wall that is divided by a Plimsoll line – except that the line is invisible.  This is the type of judge who betrays the law – they do not discharge their duty to decide cases according to the law.  They are guilty of moral cowardice. They are also bone lazy.

Vienna has another problem.  There appears to be one law for the city and one for the suburbs – one law for the better people, and another for the rest; authority against anarchy, nuns against punks, chapels against brothels.  Lucio flits between the two and his frank assessment of each is probably as embarrassing to one as to the other.  But the only connecting link lies in that part of human life that we now denominate by the three letter word ‘sex’.  As Tony Tanner remarked, sex is at least potentially ‘a great leveller’.  If you had to choose between the rank flesh and sweat of the knock-shop and the heartless hysterical rigidity of a chapel, you might pause.

 

That brings us to the Ice Maiden, Isabella.  We are told that the founder of her Order, Saint Clare, decided to put herself in the hands of God when her parents asked her to marry.  We do not know what sent Isabella to the Order, a very strict one according to the books, but when we first meet her she is one of those painfully deluded soi-disant believers whose warped minds lead them to believe that it is easier and safer to get close to God by denying their own humanity than by facing and embracing the humanity of themselves and others.  It is the kind of retreat from the world, itself a kind of moral cowardice, that Gibbon railed at.  Ascetics, he said, ‘obeyed and abused the rigid precepts of the Gospel, and were inspired by the savage enthusiasm which represents man as a criminal and God as a tyrant’; for them, ‘pleasure and guilt are synonymous terms’.

And not just Gibbon.  Measure for Measure is about the conflict of law and equity, earthly rule and the Sermon on the Mount: but it is also about the conflict between the Church or the clergy and the Sermon on the Mount.  If a decree of the clergy is contrary to the spirit of the Sermon on the Mount, which is to prevail?  Kant had no doubt at all, and shaped much of his thinking, and got into trouble, to assert the primacy of the word of God over the word of man.  ‘Rule by clergy [pfaffentum or clericalism] therefore is the constitution of a church to the extent to which a fetish-worship dominates it, and this condition is always found wherever instead of principles and morality, statutory commands, rules of faith, and observances constitute the basis and essence of the church’.

In the film Chariots of Fire, the professional coach told his neurotic acolyte that the 100 metres sprint was tailor-made for neurotics.  Isabella and Angelo are neurotics who are tailor-made for each other.  They are both virgins, heading for a bonfire of virginity.  They are what we would now call control freaks (and so is the Duke).  They might also be called absolutists.  Isabella sees this.  She refers to someone ‘as absolute as Angelo’ (5.1.54-5).  (Perhaps her own absolutism is one of the things that attracts Angelo to her.)

We see what we would now call the repressed nature of each of these characters almost immediately they appear on the stage.  In the fourth line that Angelo utters (1.1.48), he asks for some more tests to be made of his mettle before he is promoted.  In her third line (1.4.4), Isabella is seeking a ‘more strict restraint’ than apparently then offered by the sisterhood of St. Clare.  They are both, in the common phrase, buggers for punishment.

Isabella must have had something.  This cold-hearted refugee from the world spends about half an hour with each of the two leading men of the State, and each of them propositions her as a result – one for a one night stand, and the other for life.  Was it that she was a novice?  A nun?  That she could give as good as she got?  That she had a mind as well as a body?  That she was just innocent?  That she may have appeared to be out of reach?  Or that she was just one of those unhappy creatures who seem to call for violation?  Were the men maddened at the thought of this woman becoming a bride of Christ?  Was she terrified that if she gave in to Angelo to save the life of her brother, she might be disqualified from that race, even though her own Saviour had consorted with prostitutes?

It is a measure of his sex driven madness that Angelo tells Isabella that if he cannot have her, he will torture her brother to death (2.4.166).  All this in the city that gave us Sigmund Freud. Angelo and the Duke are examples of those characters who are mesmerised by innocence.  (Pontius Pilate may well have been another.)

Now, it is fair to say that the conduct of Isabella toward her brother may have been better received in 1604 than it is in 2009.  But it must have been hard even then.  Claudio remarks, not unnaturally, that ‘death is a fearful thing’ (3.1.117) and prays:

Sweet sister, let me live (3.1.133).

For that he gets called a beast, has his parenthood questioned, and is told to die quickly.

Then, Isabella, live chaste, and, brother die.

More than our brother is our chastity. (2.4.184-5)

Question answered.  Equation denied.  Irrefutably.  As someone said elsewhere, ‘Yours in the ranks of death’.  There are dark and carnal secrets here. Isabella comes near to rapture when her brother says that if he has to die, he ‘will encounter darkness as a bride’ and hug it in his arms (3.1.84).  A brother becomes a bride of death so that his sister may become a bride of Christ.

Isabella is confident that Claudio will die a martyr’s death.  Heaven awaits him.  In the nature of things, the martyr is not so enthusiastic.  He would prefer another two generations to elapse before he ascends to God.  He is after all facing death for giving life.

This, then, is an appalling example of how wrong we can be when man-made doctrine is allowed to overrule the simple greatness of the Sermon on the Mount.  Tony Tanner has a beautiful line from Langland.  ‘Chastity without charity is chained in hell.’  In truth, in her fall, Isabella mirrors Angelo in his fall – these two fanatics are both prepared to put their adherence to their calling to a strict test – the need to enforce the law to the letter, or to preserve a rule regardless – over the life or decency of another.  In so acting, each is guilty of that moral failing that is perhaps our ultimate threat – the readiness to sacrifice humanity – real people – for a mere idea.

When Isabella is induced to break her moral code by lying, her extenuation is merely that ‘the doubleness of the benefit defends the deceit from reproof’ (3.1.263-4).  The ends, for Isabella, therefore justify the means.  If it took a saint to catch a saint, it would also take a thief to catch a thief.  Two things.  This rule does not apply where her own physical or moral condition is concerned.  The loss of the head of her brother does not warrant the loss of her spotlessness.  His losing his life does not warrant her going into sin.  Secondly, the maxim that the means are justified by the ends can lead to unpleasant consequences in the hands of people like Napoleon or Hitler.

Doubtless Isabella still has her champions.  Her champions would be of the ‘Be absolute for death party’ (3.1.5).  This is one of those maxims that is easier said than done – unless someone else does the dying.  Geoffrey Bullough says that the argument of Claudio that nature dispenses with a sin to save a life has ‘a specious plausibility’.  He argues that the law Isabella ‘serves is one above Nature; and she conquers in the struggle between natural affection and supernatural injunctions’.

An invocation of the defence of superior orders does not become any more attractive than the version rejected at Nuremberg just because you invoke the supernatural.  At least the Wermacht and the SS knew that Hitler was there.  The contrary is the case now. People who drive planes into tall buildings are not heard to justify their actions by saying that they were acting under orders from God – some supernatural injunction..  And it would certainly inflame the sentencing court if they described the result of their struggle between natural affection and obedience to God as a ‘conquest’ for God.  But if the point is that the tenet of the church that Isabella was asked to contravene is non-negotiable, this would be in character for her as an ‘absolutist’ of a very heartless kind.

One of Bullough’s sources is Augustine De Sermone Domini in Monte (the Sermon on the Mount).  Augustine appears to countenance a woman giving up her body to a cruel governor in order to save the life of her husband.  The passage of the centuries means that the reasoning of the Saint may not now command the universal assent in every part of every household.  He appears to have countenanced the surrender of the wife if the husband asked her to do so since ‘the conjugal master of her body to whom all her chastity was owed’ could proceed on the footing that he was ‘disposing of a matter properly his own’.  Geoffrey Bullough thought the reasoning somewhat dubious but said that in any event ‘no brother could rightfully demand the ‘monstrous ransom’ of a sister’.

However that may be, it is the absence of a guilty motive that makes baseless the fear of Isabella that she ‘by redeeming him / Should die forever’ (2.4.107-8).  Was there a God ever conceived, let alone this one, who could so punish a human being for an act of redemption?

It follows that insofar as Isabella denied Angelo because her acceding to him would lead to her dying forever, she was impaling herself on a false dilemma.  After all, even our law has sufficient charity generally to require the finding of a guilty mind before it finds that someone has committed a crime against its laws; and a moral law that lags behind the strict law faces serious problems.  And if we are wrong there, which is a real possibility, we may find it hard not to follow Gibbon in concluding that the God of this ascetic – Isabella – is indeed a tyrant.  And that just may be a true dilemma for Isabella.

But let the divines say and the ecclesiasts rule as they may, we may stay with the text that the author has left to us.  We might merely reflect that when our law has to resolve moral questions, it tends to refer the issue to the conscience of the court, or the general verdict of an inscrutable jury.  (We are, after all, the product of the Protestant Ascendancy.)  The first is what the lawyers call equity.  If Isabella were to proceed on the basis that she should act according to her conscience, she may not take long to decide.  She has to live with her decision, and her brother might have to die because of it.  For what it is worth, that proposition may not leave all that much room or need for juggling.

(The play does refer to our other method of resolving moral issues.  Habsburg Vienna would not have had much time for juries, and Angelo was expressing an English view when he said that a jury of twelve would have one or two ‘Guiltier than him they try’ (2.1.21).  The same may go for judges.)

Isabella prefers the gloss of the commentators to the words of the text. This problem  bedevils our law.  Common lawyers feel uneasy when they stand before a naked act (statute).  They need to baptize it into their tradition and then drench it in their gloss.

How stands it, then, with the Duke, the character perfectly described by Lucio as ‘the Duke of dark corners’ (4.3.159-160)?  Born to reign, rather than to rule, the Duke lets his state go to waste; then he refuses to apply the correction himself; then he chooses the wrong deputy in an experiment on live subjects that goes badly wrong; then he enjoys himself playing puppet-master –he is a real live boss at last! – while posing as a priest and deceiving his subjects with news that is both false and hurtful.  Meanwhile, he cannot get either Lucio or Barnadine to obey him.

It is silly to compare this Duke with Prospero.  Prospero is out to avenge his ‘high wrongs’.  This Duke meddles about while mired in his own mediocrity.  He is another control freak, but a badly failed one, and a worse hypocrite than either Angelo or Isabella.  That, you might think, is a very large statement, but the Duke pretends to adopt the high moral ground even though the whole problem has arisen only because of his gormlessness.

Then, while fraudulently imposing himself on believers as a priest, he takes confession and then boasts of having done so (5.1.530).  It is hard, off hand, to think of a more complete or despicable betrayal of faith or a breach of trust, and this in a city that was to give such a warm welcome back to Adolph Hitler.

And then, suffused – no flushed – with his own goodness, he propositions the novice nun.  Is this an abuse of office?  Of course it is.  It is the abuse of two offices.  He has won the confidence of Isabella while posing as a priest.  (We do not know if he took the confession of Isabella as well as that of Mariana, but if he had been asked to, he would not have hesitated – he was into that kind of game, a kind of loaded charades.)  Then he seeks to benefit from using his power to save the brother of his target.

The difference between Angelo and the Duke is that Angelo promised to save Claudio after Isabella has gone to bed with him; the Duke saves the brother, and then seeks his reward in the form of a more permanent coming across – from someone young enough to be his daughter.  It is conduct in a public office of such an awful kind that it would warrant the promotion of its holder to the highest rank in politics.

That is why the author left open the response of Isabella to the limp-wristed proposals of the Duke, and why the best productions show her giving the Duke the cold shoulder. The RSC, it is said, shocked its audience in 1970 when it showed Isabella rejecting the Duke.  Forty years later, assuming that women have raised themselves above the status of serfs in the Russia of Ivan the Terrible, it might come as a serious shock to the sensibilities of audiences now to see Isabella accept the proposition.

The final delinquency of the Duke is his failure to execute due process of law on Angelo.  If you are going to have a death penalty, and if it is to be applied by due process rather than personal decree, Angelo had to suffer it.  (Remember that Claudio was sentenced to death for ‘fornication’).  Angelo traduced the office of a judge.  He attempted to rape Isabella – and that is undoubtedly what it was, an attempted rape.  He then attempted to murder Claudio.

The Duke lets all of this go, and not for reasons that are light years away from those that corrupted Angelo.  He, too, is infatuated with Isabella – he must be if he is asking her to marry him – and he wants to impress her.  Opinions might differ on whether this abuse of power is worse than Angelo’s. Some think  that it is, since the consequences of his abuse of power may be more terminal.

Two things might be said in extenuation of the failure to execute Angelo.  First, everyone appears to have been very sensitive about executing people.  You have to be certain that the condemned are ready to die.  (Remember the ghost in Hamlet?)  This was urged on behalf of Claudio (2.2.83-4) and, hilariously, by the self-confessed murderer and drunk, Barnardine.  He simply declines to die because he had been drinking all night and peremptorily shuts the Duke up when the Duke dares to suggest the contrary (4.3.54-63).  (Barnardine, like Lucio, has a clear-headed view of the world, and looks sane by comparison to the three heroes.  It is part of the high dramatic technique of this playwright that their outlook comes out in scenes of surrealist comedy that might remind you of the Goon Show or the brothel scene in the Ulysses of Joyce.)

Secondly, as John Fletcher remarked, the idea of tragi-comedy is to bring none to death but some near it.  But, of course, only for the author is this an excuse.

The year before this play was put on, 1603, James I came to the throne and observed:

Laws are ordained as rules of virtuous and social living, and not to be snares to trap your good subjects: and therefore the law must be interpreted according to the meaning and not the literal sense. 

These conflicting impulses run through the law and equity of both Rome and England.  They led to a dog’s breakfast in the Vienna of our play.  Two people to come out of the play enhanced are the Provost and Mariana.  When asking Isabella to plead for the life of her then husband, Angelo, Mariana says:

They say, best men are molded out of faults:

And, for the most, become much more the better

For being a little bad. (5.1.442-4)

Well, as someone said in another play, for this relief much thanks; nor may it hurt to be a little mad as well as being a little bad.

The modern film set in a  British base in post-war Germany is well worth a look, but the performance by Kate Nelligan for the BBC is both riveting and peerless.

Measure for Measure shows  us what Milton called ‘darkness visible’.   The problem then is that these characters seem to us in some way so much more real than those that paddle about in our own little duck pond.  This effect of this play on us, and its insight into our dark corners, are an enduring testimony to the matchless humanity of its creator. The play continues to reveal to us truths about us and our laws, when we seek to apply the laws too hard or too softly, or when we let people put themselves above the law – or when we put the laws too far above people.

REFERERENCES

Tanner                       Comedies, Vol 2, p clxvi

Gibbon                         See, S P Foster, Melancholy Duty, Kluwer, 1997, pp 191, 213                

Kant                           Religion within the Boundaries of Reason, Hlisaarp, 1960, p 167-8

Tanner (Langland)   above, p clxiv

Bullough                     Vol.2, p 408

Milton                         Paradise Lost, 1.63

The most exclusive men’s club –part II Two black holes at the MFB

 

Recent press reports suggest that some are surprised at the level of warfare within the MFB, and at the hostility of its workforce to being opened up to women.

I started there in 2003 and as best I can see, things have got steadily worse since.  This is serious for us in Victoria.  It is silly to suggest that an outfit that is at war with itself can be trusted to respond adequately to emergencies.  It would also be terrible if the infection is passed on to the CFA.

At the end of this post, I set out a memo that I gave to the MFB in 2003 dealing with a number of real problems facing it, especially the class war.  Since then all those problems look to have got worse.  Certainly the class war is now worse than ever.  Do Australians in the year of Our Lord 2016 believe that they should be paying taxes to support a public utility whose members devote their time to battles in the class war and doing all in their power to exclude women?

Apart from the class war, let us focus on two black holes.

One is the vicious and ingrained discrimination against women.  No decent government of either stripe can tolerate this kind of indecency.  This isn’t just bullshit.  It is an affront to humanity.  The bullshit comes in when those in charge of the club say that they are locking women out to keep us safe.  No one believes that.  Except that they possibly do – they live in their own bunkers removed from the world.  War and conflict to them are air and water to the rest of us.  The connection between the class war and women may not be obvious, but I think the only way of getting out of the inbred madness of the class war is by getting women up to at least 50% of operational staff at the MFB.

Another black hole lies in the employment agreements (EBA’s) that have processes that management should observe before managing the MFB.  If the other side do not like the management, they run off to a federal body and say there is an industrial dispute – management has not followed the process, and therefore the federal body should stop management from managing.  Now, you will protest that this is obviously bullshit, and I agree.  But bullshit works in that netherworld of ‘industrial relations.’

This is where the other black hole comes in.  This bullshit works because of the class war.  It was on this basis that the men have now effectively put out of action and act of the Victorian parliament dealing with discipline.  And it is on this basis that the men want to continue their lock-out of women.  And governments of both stripes have acquiesced in this bullshit – even though this might be a real case of loss of ‘sovereignty.’

I am setting out the memorandum below in full for two reasons.  The MFB does not want any of this aired.  They say that my work was confidential.  I have explained why I do not think that that view is correct or that it would preclude publication. But the preference of an arm of government for operating behind closed doors is worrying – especially where the administration of justice is involved – and especially if they may be thought to have something to hide

The second reason for publishing this note is to show the involvement of lawyers in the trainwreck that is Australian IR.  We lawyers have an awful lot to answer for.  Lawyers do not get paid to sprout bullshit just because they are doing it to the tune of the club song, but I have seen this happening on both sides in all my time at the MFB.  There are times when I despair at the want of professional responsibility in some lawyers that is costing Australians a fortune and that is costing this particular public service group any chance to recover some of its dignity.

*****

METROPOLITAN FIRE BRIGADE

Disciplinary Hearings

The Delegate of the CEO

The First Six Months

Teething Problems

  1. The procedure had not been working properly for some It is not surprising that there were some problems in getting it cranked up. People on both sides had to come to grips with a new kind of procedure. So did the Tribunal. The union wanted to test some questions in the AIRC and the Federal Court. Most of these issues have now been ironed out. In the past, disciplinary processes have stalled when “industrial” issues led to an application to the AIRC or the Federal Court. It is most unlikely this will ever happen again. Adjournments
  2. It was soon apparent that adjournments had been sought and granted on grounds that were Guidelines have been provided for requests on medical grounds. Proceedings will not be adjourned to suit the convenience of lawyers. There is a public interest in these issues being resolved quickly and effectively. There is also a growing fear of the damage being caused by legal costs in drawn out proceedings.

Legalism

  1. There is a recurring problem of legalism that I have referred to in a number of These matters should be dealt with as far as possible as issues between members of the Fire Brigade and not between lawyers. There has been too great a tendency – at times on both sides – to leave matters to the lawyers. Bush lawyers are to be discouraged, whether they are qualified as lawyers or-not, and reliance on technicalities is not encouraged either. Because of its history, our industrial law has been beset by legalism and technicality, but there is no need to import these factors into disciplinary proceedings. This message 1 think is getting through, but it is slow.

Legal Representation

  1. Both sides have in the past customarily been represented by On one straightforward plea the defendants were represented by the union secretary. This could well happen in most pleas. Additionally, if proper notice is given, the charging officer may not need legal representation if there is no legal representation for the defendants and the case is in substance a plea. If I think this gives rise to a problem, which I doubt will be the ease, I can say so. Otherwise the nature of representation needs to be the subject of continuing consideration. It is obviously in the interests of both sides to try to keep the costs down. If this happens, it may well be reflected in the penalty.

Industrial Issues

  1. A number of the disciplinary proceedings arose out of a context that could be characterised as In truth, every disciplinary proceeding can be so characterised it arises out of something done by members in the course of their duties and they are subject to industrial laws and industrial agreements. It is now accepted that the fact that a context may in some way be said to be industrial, or an industrial dispute, means nothing for the competency of this Tribunal, which is a disciplinary tribunal, to deal with the matter, or to the nature of the case as a whole. We can I think forget the industrial mantra.

Functions

  1. The primary function of the Tribunal is of course to enforce the law relating to discipline and to enforce and, as required, set It is part of this function for it to declare standards in the sense of saying what has to be done for standards prescribed by the law to be met. The Tribunal has I think been of use on a couple of occasions in being able to declare what the position is in respect of standards, for example, the proper response to an alarm of fire. In this way the Tribunal acts as a kind of audit on the processes in place. The Tribunal itself may not be able to contribute much it will all depend on the quality of the contributions it gets from senior officers. It can also assist in monitoring these processes. For example, issues have arisen in relation to counselling of members after traumatic incidents and protocols in relation to attendance at charity functions that I think received some useful examination. Additionally, the Tribunal is in a position to lay down general guidelines in relation to the need for discipline in an emergency service which is subject to a command structure. These are I think positive contributions that can be made by a tribunal which is seen to be independent.

Duration of Hearings

  1. Some of the hearings went on much longer than they should have The longest was six days because of agitation about industrial issues which in my view were not relevant. What we should be aiming for is to get to the position that I have for the most part in the Tax Division of VCAT. I undertake to hear cases within six weeks of their referral on the footing that the lawyers will endeavour to assist me to dispose of the case in the morning in return for their getting a decision in that afternoon or the next day. There is no reason why we should not be able to work towards that conclusion here. I may say that the only case which has given me any substantive difficulty on reflection has been the penalty that should be accorded to Mr. W (the man in charge of the unit which turned over). Most of the tax cases are a lot more difficult (but any attempt to introduce a political overtone is ruthlessly put down).

Transcripts

  1. I have never had a transcript for a hearing in eighteen years of hearing tax I think the position in future should be that if a party wants a transcript it should make its own provision for it on the footing that it provides a copy of it to the tribunal.

Privilege

  1. Members have in the past been advised that they have a privilege against self- incrimination in respect of questions directed towards disciplinary I do not believe that is the case. The Fire Brigade has an opinion contrary to that held by the union. I have expressed the view that in future members who refuse to answer questions on this ground will be conducting themselves in a way that will be taken into account adversely. This question should be resolved. I would hope it can be resolved without someone being charged for refusing to answer a question. The privilege does of course remain in respect of answers which might lead to prosecution for a substantive criminal offence rather than a simple breach of discipline. The issue is important in terms of operational efficiency. It is in my view quite unacceptable that members involved in a substantial incident can decline to explain themselves to their employer simply because they may be subject to a disciplinary proceeding. It is unacceptable that a firefighter whose apparent lack of discipline has caused serious damage to life or property can decline to account for himself to his superiors because he may get demoted or sacked for what he has done if he does. Additionally, it is plain that this refusal has led to proceedings being taken which may well not have been taken, or to proceedings being very substantially shortened because the charging officer knows what the response of the defendant is. In my opinion, firefighters are demeaning their very significant office by maintaining that they cannot be required to account for themselves.

Venue

  1. There were logistic difficulties with the rooms at Eastern Hill and by and large I thought it may be preferable to get a hearing on neutral This has now been achieved at the premises – which are, for that matter, rather comfortable and spacious – used by the Psychologists’ Registration Board. On the whole I think that move has been a success. There is a relatively low cost attached to the exercise, but I think it is worth it (although I miss some of the personal contacts at Eastern Hill).

Formality

  1. So far I have thought it appropriate for the proceedings to be conducted with a minimum of formality in order to try to get people involved in and accepting the I think it is now time to get back a little formality into the process. We are after all dealing with cases which can have a serious impact, sometimes a terminal impact, on the career of a member. I also think that, perhaps paradoxically, some people may be more at case if there is some more of the formality that people associate with hearings that may have a significant effect on the lives of those involved.

Penalties

  1. Because of the history of these proceedings, and the fact that they have not been invoked much of late, I have in a number of cases felt constrained to say that although these particular defendants would not get the maximum appropriate penalty, the next ones It is important that people understand that I meant those observations. As an example, and it is only an example, someone found guilty in the future of refusing to obey an order would almost certainly be facing dismissal and could on no account expect anything like the extreme leniency shown in the only case to have come up so far.

Publishing

  1. I need to discuss with the appropriate people the way in which the effect of these decisions can best be I have on at least one occasion said that I am proceeding on the express basis that members of the Fire Brigade or the Union – have been expressly told of the effect of a decision. It would seem to me to be absurd to suggest that any rights of privacy might stand in the way of the imperative need for the Fire Brigade to ensure that these proceedings are transparent and also that their effects are properly learned. Otherwise, a large part of the process will have become worthless, even though its processes are open to the public (subject to the right of the presiding member to control its process). It is in my view clear that the Tribunal operates as a statutory tribunal of what used to be called, in the old language, a quasi-judicial nature, and therefore in my opinion it is clear that no rights of privacy can stand in the way of the obligation of the Fire Brigade to discharge its statutory duties by ensuring that the statutory processes relating to discipline in a public body are properly earned out to the best effect. Something needs to be settled about this as soon as possible. I do not see that there is any real issue. In R. v. White (1963) 109 CLR 665, the Full High Court ruled that in performing its duties to hear discipline cases imposed under the Public Service Act, neither a chief officer nor an appeal board acts as a court of law exercising a judicial power of the Commonwealth-each sits as an “administrative tribunal” maintaining the discipline of the Commonwealth Service in the manner prescribed by the law. That judgment (of Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ) is clear authority in my view that the CEO or his delegate healing disciplinary charges under the MFB Act sits as an administrative tribunal to maintain the discipline of the Fire Brigade. Such a tribunal must come within the quasi-judicial category referred to in the privacy legislation.

Compelling Evidence

  1. In one case I was asked to issue summonses to compel The MFB made the request which was opposed by the defendant. (I indicated that the union should be slow to oppose this kind of thing because they may need it in the future.) I ruled that there is no power at this level to issue subpoenas although it appeared that there was such a power in the appeal body. This is plainly an anomaly, and plainly a bad anomaly as it may seriously affect the capacity of this Tribunal to carry out its function. This  was  shown  by  the comical difficulty in obtaining what was critical evidence from the police in one case (although  the  delay  in  obtaining  that  evidence meant  that  other  forensic evidence of even more importance was obtained). In my view it is vital that the Tribunal be able to compel evidence – otherwise it may well be involved in the administration of an injustice. We customarily apply that kind of phrase to what happens if an accused person cannot get proper assistance to protect their rights, but it must also apply where those in charge of administering an essential service which may have an effect on the lives of many hundreds of people, do not have the appropriate equipment to do their job. If we talk of firefighters not having proper fire-fighting equipment we would be talking about a very serious issue. We are talking about an issue that is no less serious in saying that this Tribunal does not have the right equipment to do its job.

Appeals

  1. It would in my view be appropriate for the Fire Brigade to have a right of appeal as well as for the defendant. As I have remarked in the course of a number of cases, we are all capable of making mistakes – even CEOs and their delegates. Even putting mistake to one side, some of these issues might provoke clear differences of opinion and where it may be appropriate to have the issue tested on appeal. At the very least the appeal body should have the capacity to increase the sentence. This is now a commonplace in appeals in the area of the criminal law and for obvious reasons it should be available here to the appellate body.

Familiarization

  1. I have been much assisted on two occasions by observations or evidence of Mr. M [charging officer]. I also learnt something from what Mr. A [a union official] told me about the psychological effects of traumatic incidents on members. I think I could do with some more familiarisation with the operations and processes of the Brigade and I will discuss this also with the appropriate people. I might also say that I think it might be appropriate from time to time if some officers of the Brigade attended at parts of the hearings to see what the process entails, and with a view to putting some backbone back into the process.

Rulings of Substance

l7. I am setting out in the Schedule to this memorandum verbatim extracts from various decisions or notes which in my view are precisely the kind of matters that need to be given full publicity within the Fire Brigade-if for no other reason than to try to ensure that the discussion of these matters is at least informed. It is also necessary for members to know what is going on because a tribunal is entitled to proceed on the footing that they have been told of what the attitude is to certain matters-for example, that pornography on computers is clearly a sackable offence. The verbatim extracts from the decisions are under the following headings:

Nature of Proceedings

Functions of Brigade

Discipline in the Brigade

The Role of Lawyers

The Need for Discipline

The Responsibility of Rank

No Settling Disciplinary Charges

A Command Force

Firefighters Hold Positions of Trust

Conflicts of Interest

Dismissal

Principles of Penalties

Industrial Issues

Relevance Wording of Charges

Duty of Integrity

Sentencing

Nature of Disciplinary Proceeding

Fixing Penalty

Co-operation Unions

Orders

Misconduct Off the Fire Ground

Free Speech

Industrial Consequences

Divided Loyalties

The Class War

Dismissal for Disobedience

Playing Games

Fixing Penalties.

  1. It remains I think for someone to prepare short summaries of the decisions with key I will endeavor to do this for the future.
  2. I am happy to discuss any of the above with representatives of either side, either together or separately.

Geoffrey Gibson

17 September 2003

METROPOLITAN FIRE BRIGADE EXTRACTS FROM DECISIONS

NATURE OF PROCEEDINGS

The hearing takes place under an act but it is not a court process. It is not a criminal hearing or trial.

A member of the operational staff is responding to an allegation made by the charging officer. They are the people who matter in the process. The lawyers are there to assist. They should try to keep out of the way and they should avoid ‘Lawyerising’. Lawyers have a statutory right to represent members or the charging officer; they do not have the right to hijack the process.

They are encouraged to be up-front, direct, and to get on with it. Repetition and circumlocution are not welcome.

The rules of procedural fairness (or natural justice, or due process) mean that the member must get a fair go.  Most Australians understand what this means and it should not be necessary to refer to what the judges have said about it. (The one thing the judges have made clear is that what amounts to a fair go depends on all of the circumstances in each case.)

When a date is fixed for hearing, the lawyers for the charging officer and the member should confer about ways the hearing might be shortened or expedited. They should also discuss, off the record, what range of penalties the charging officer will recommend if the charge is found proved.

In most cases the parties should not need a ‘directions’ hearing.  The lawyers should co-operate to resolve the kinds of issues that excite other lawyers in court proceedings. The hearing officer will usually be available to hear the parties or their lawyers in his room on the day on which he is notified of any dispute the lawyers wish to refer to him.

Once a matter is scheduled to be heard by the hearing officer, it should not be compromised without his involvement and approval.

Lawyers should assure themselves that they are fully and directly instructed so that they can properly represent the interests of their client. Lawyers for the member should be assured that the member understands the possible consequences of the various courses of action open.

Although the proceedings are not criminal charges, counsel has suggested that they are like criminal charges. It may be argued that the principles of sentencing developed for the criminal law should apply to determining penalties here. For example, the penalty may be reduced if there is a plea of guilty. Putting to one side the contractual obligation of the Brigade and members to co-operate in the performance of their duties, there might be thought to be obvious forensic advantages from a member being seen to assist both the investigation and the hearing process – or at least not being seen to hamper it. If a member has either a complete answer, or no answer at all, is there any point in getting off side with the investigators or the hearing officer?

One legal approach to be avoided is that of undue legalism. ‘A strict and complete legalism’ was the famous description given by Sir Owen Dixon to his approach to the technique of the High Court. There are at least three things to note.  First, this forum is about as far removed from the High Court as you could get in this country. Secondly, its object was to keep politics out of that court; the reverse result may apply here when strict legalism is invoked. Thirdly, it has now been repudiated by the High Court – they say they have to face facts and not pussyfoot around. However that may be, the technique of Sir Owen Dixon, the most refined jurist this country has produced, will rarely be appropriate for this disciplinary process.

(A Guide to Disciplinary Proceedings for Members and Lawyers, 27 February 2003.)

FUNCTIONS OF BRIGADE

Quite apart from its place in the statute books, the Metropolitan Fire Brigade of Melbourne has a long and proud history. So it should. It has a very big job to do. It is there to look after a lot of people. It is an essential part of a large modem city. At any one time there might be three million people depending upon it.

The people of Victoria are entitled to expect that the Brigade and its officers and firefighters will carry out their functions properly. This is not less so when the City of Melbourne, in common with the rest of Australia, is subject to the threat of terrorist attack. We do not know if this will happen, but if it does, it is likely to require the Brigade to perform to the very optimum of its capacity. In addition, rural firefighters are currently looking to the end of one of the most difficult and dangerous summers ever. Not just by tradition, but by force of circumstances, firefighters are used to living on the footing that they may have to confront a crisis at a moment’s notice.  The truth is that a firefighter holds a-position of trust. People put confidence in their fire brigade, and that confidence must be respected.

DISCIPLINE IN THE BRIGADE

The Act is very strong on the subject of “Discipline”. The Parliament has made guilty of an offence members of the operational staff of the Brigade who are either negligent or careless in the discharge of their duties or who are inefficient or incompetent (where that inefficiency or incompetence arises from causes within their own control). It is not often that people are subjected to prosecution under the criminal law for carelessness or inefficiency, but the need to maintain the operational efficiency of the Brigade is distinctly recognised by the Parliament. These are statutory obligations.

It is well known that legislation relating to Occupational Health and Safety is designed to impose serious sanctions on a wide range of conduct. This is because the legislation is concerned with health and safety. Health and safety are prime concerns of the Metropolitan Fire Brigade and it is for that reason that legislation relating to the Brigade’s efficiency and competence contains the sanctions that it does.

It is very important that these duties arise as a matter of law – they arise by act of Parliament. They are not matters for contract, much less negotiation.  They are not to be set at nought by some bargain, pact or award. They can only be varied by the Parliament that created them (and some would find it hard to see in the present climate any ground on which a government might ask the Parliament to reduce these duties).  The Metropolitan Fire Brigade is not the -Australian Anny, but nor are we talking of an entity like BHP or Coles Myer, a mere public company run for profit that can strike what deal it wants relating to disputes with or complaints about its employees.  We are talking of a statutory body which owes statutory duties to the people of Victoria.

I have referred to what the principal Act says under the heading “Discipline”. This case is being dealt with under other provisions of the same law. We are considering disciplinary charges. In the operation of an organisation like the Brigade, the maintenance of discipline will ordinarily be seen as vital to the maintenance of its capacity and readiness to carry out its functions relating to fires and emergencies.  It is difficult to envisage a fire brigade where this is not

(

the case – other than a fire brigade run by the Marx Brothers.

It would simply not make sense to talk of an undisciplined readiness for a fire or emergency. It might make sense to talk of an undisciplined response, but that is the last thing that the Brigade or the people of Victoria would want.  Terrorists prey on unreadiness and thrive on indiscipline.

It is therefore essential that the procedures dealing with discipline work promptly and effectively, and that they be seen to work promptly and effectively. This is very important. If the Brigade cannot run its own disciplinary procedures properly, how can it be expected to cope with an emergency?

By the disciplinary procedures of the Act, the Victorian Parliament has given the CEO, and no one else except his delegate, the duty to enforce the responsibilities the Parliament has put on firefighters. Since the disciplinary process derives from the Parliament, it can only be changed by the Parliament.

It follows in my view that the determination of discipline charges under the principal Act should, at least as a general rule, only be deferred for compelling reasons founded on convincing evidence.  I would expect each party to be equally interested in obtaining a determination of issues with all due expedition. However that may be, the people of Victoria are in my view entitled to no less.

THE ROLE OF LAWYERS

One great principle of the English law, said Dickens in Bleak House, is to make business for itself. That principle is certainly alive in this jurisdiction.

Certainly I would have thought a competent Magistrate would expect to deal with three or four of these types of case in a morning and two or three in an afternoon. I would expect that with assistance from lawyers wishing to get to the point, rather than debate legal issues at the periphery, we would have a good chance of getting through all of these matters in a day or not much more. We could certainly do everything we could to alleviate the concern of those firefighters that arise because these issues are still alive.

I should say why I am concerned about this and other adjournments.  As I said, I have yet to see a defendant. This is an appalling reflection on this organisation. It should be crystal clear, if it is not now, that defendants should be present at their hearing unless they are specifically excused by me in advance or have good evidence that they are incapable of attending. The requirement to attend the hearing constitutes a direction given in the course of employment and a failure to obey that direction could lead to serious consequences. Part of the problem, as it seems to me, is that there has developed a culture that firefighters can leave these things to their lawyers and not bother to show up themselves. These proceedings really are between the charging officer and the officer or firefighter who is under charge. The lawyers arc only there to assist. If firefighters think the lawyers are principals in what goes on, they should try asking them to pay the penalty or accept the pink slip when it is imposed.

More importantly, we are yet to get anywhere near an inquiry into what these cases are about. Lots of money is being spent on lawyers but little is being done to advance the process of getting rid of the list. It is the experience of most people that a picnic for lawyers is bad news for everyone else and nothing I have seen suggests that any of these cases constitutes an exception.

THE NEED FOR DISCIPLINE

Most importantly, we are talking about discipline within the Metropolitan Fire Brigade. Those reasons can be taken to be incorporated in these. The following propositions appear to me to clear enough.  We are in some sense I have never fully understood already involved in a war, a war against terror. It looks like we will shortly be involved in a shooting war.  However that may be, it looks like the risk of our being the subject of a terrorist attack is increasing and will increase. Certainly I do not think the Board could proceed on any other basis.  The MFESB will play an essential part in responding to any terrorist attack, as it does in respect of other emergencies.  Discipline is essential to the proper operational efficiency of a body like the MFESB.

The MFESB has to have a discipline enforcement process in order to maintain discipline.  The discipline enforcement process at the moment is simply not working at all because of the matters 1have referred to above.

It follows, I think, that the ordinary member of the public might think that until this disciplinary process is made to work, there is a real risk that the operational efficiency of the MFESB will be reduced, as will be its capacity to respond to the kind of threat for which it exists. These are things that worry me very much. I do not wish to labour the point I made [elsewhere], but these procedures are set out in an Act of the Parliament of Victoria. By reason of my appointment, I have the responsibilities of the CEO. We are talking about statutory obligations, both of the CEO and of all operational staff. As I said, statutory obligations are not matters for contract, much less negotiation. Gone are the days when this kind of thing could be swept under the rug or put to sleep with a deal. The process laid down by the Parliament must be executed; furthermore, it must be, and be seen to be, transparent. Once the jurisdiction of the CEO or his delegate under the Act is invoked by the notice of the charges and their hearing, it is not possible for those charges to be in any way compromised except with the sanction of the CEO or his delegate after an appropriate hearing.  There is no such thing as an adjournment, withdrawal or dismissal by consent.

THE RESPONSIBILITY OF RANK

What is pornographic or obscene may be a matter of impression. As I remarked at the hearing, on the day when hostilities commenced in the second Gulf War, a lot of people working in the city would be going home that night to stay glued to the television watching the fruits of western civilisation and technology deployed, as some would see it, in the inevitable destruction of innocent people, about as obscene an exercise as you could get.

But some of the material was on any view pornographic, and we are not really talking about pornography. The real issue is trust. As I said, the offences took place over a prolonged period and contrary to express instructions given and acknowledged. The conclusion drawn by the Board is that Mr X is not to be trusted in his present position and should be dismissed.

There is obviously a lot of force in this position. Mr. X is at a level – that of Inspector – where he cannot, as his counsel acknowledged, say this was mere recklessness. Mere recklessness may well be enough to get an Inspector dismissed. But I think what we are looking at are errors of judgment and the question is whether they are such that there is no alternative but for Mr. X to be dismissed.

I should be careful about this. We all make mistakes.  Lawyers make mistakes.  That is why they have insurance.  Judges make mistakes.  That is why there are courts of appeal. Dictators make mistakes. That is why there are firing squads. And I might add that Presidents and Prime Ministers make mistakes – but when you get that high up, what you can get in return is a war.

I have to consider, therefore, the significance of this sustained error and the appropriate punishment. As I have said, it is of much greater significance because of the rank of Mr. X. The higher the rank, the more judgment is called for. The higher the rank, the higher the penalty if the officer is involved in misconduct.

But dismissal in the context of employment is like gaol in the context of crime. You do not go to gaol on a first offence that does not involve violence or dishonesty or a threat to safety. The offences Mr. X has been guilty of rank well under such offences and in my view, for the most part, they would rank under offences involving discrimination against a person on the ground of sex or political belief or membership of a trade union.

In terms of deterrence, I  do  not  think  that  there  is  a  significant  risk  that Mr. X will offend again. I have warned him in terms that he understood that if anything like this happened again he would be out of here so fast his feet would not touch the ground, surrounded by people in uniform of a different type.

Then there is the need to deter others. Let me make it clear, if it is not already clear, that any kind of abuse of computer facilities, particularly one involving pornography, is a sackable offence, and that the next person found guilty of this kind of conduct will be on express notice that dismissal is the most likely result. I recommend that something to this effect be placed on the warnings.

NO SETTLING DISCIPLINARY CHARGES

I accept the submission of senior  counsel  for  the  Board  that  the  statutory scheme evidences the view of the Parliament that the maintenance of a competent, efficient and disciplined operational force  is  vital  to  the performance of the functions of the MFB and to the maintenance of public confidence in the whole fire prevention and response system. I refer to what I said in [another case] on 26 February 2003 on this issue on the need for discipline generally. The scheme also shows, in my opinion, a clear intention on the part of the Victorian Parliament that issues of discipline in the operational staff be dealt with at the highest level within the MFESB – by its CEO (or his delegate). – with immediate access to all of the levels of knowledge required properly to determine issues of discipline in the fire service. The CEO has his own designated statutory accountability and in this legislative scheme, it is not all surprising that the Parliament has made the CEO responsible for the enforcement of discipline.

In my opinion, when you interpret the dispute resolution clause according to the usual rules of interpretation, the result is that any disputes or grievances that may arise from the bringing of a charge under the Victorian Act are not disputes or grievances within clause 12.1. The clause indicates in its terms that the procedure it is laying down “shall   be followed dispute or grievance. In other words, the idea is to get a settlement. In a loose sense, but only a very loose sense, disciplinary proceedings may be compromised by some agreement between the, but rules on the proposals by making findings and giving directions to dispose of the charges. You cannot have a “settlement” of the “dispute” as such.

In my opinion, the only way you can achieve a “satisfactory resolution” of the issues raised by a charge under these provisions is for the statutory officer to hear them and determine them as expeditiously as possible. It is the evident object of this kind of scheme that these matters be determined properly, transparently, and at a high level, and so that efforts to dispose of them by deals or sweeping them under the carpet are put to rest. In my view, as a matter of ordinary construction, clause 12.l is inappropriate to deal with any dispute that may relevantly be said to arise from an invocation of the discipline provisions of the Victorian Act. I might also refer to s.l70LT(8) of the Commonwealth Act. If it is hard to “settle” this kind of “dispute”, it is even harder to “prevent” it.

A COMMAND FORCE

In the course of argument, Mr. Bell QC reminded me that the Board is a statutory body with statutory duties.  He said that there has to be a force under command; the command system has to be enforced; there has to be a clear and efficient system of discipline.

Mr Bell submitted that the contentions of the defendants would impede the proper working of the discipline system and ultimately impede the Board from discharging its statutory duties. I have a very clear view that no statutory corporation in the position of this Board – someone running a fire brigade – could responsibly allow responsibility for discipline to be taken from the CEO and left up to negotiation case by case. Democracy and anarchy may be bliss if you could afford them, but a fire brigade cannot.

FIREFIGHTERS HOLD POSITION OF TRUST

In my opinion, there was no evidence adequate to warrant a finding that Mr. B was unfit to work, much less unfit to appear in answer to these charges, on 21 March 2003.  Indeed, if he was fit enough to make the sort of charge he did, he should not be heard to say he was not well enough to back them up, and to participate in this process and in his work. Some of the medical “certificates” produced to me have not been worth the paper they are written on. I have to be impartial; I do not have to gullible.  People have been putting propositions to me that indicate they think I have come down in the last shower. (Imake that observation about lawyers as much as firefighters.)

It had been apparent throughout to Mr. B that this case is a serious one for him.  On the first hearing day his counsel said, “This is a very serious charge,” and that “my client faces the possibility of being dismissed” (even though Mr. Langmead had said he was not instructed about the case itself.) It had not yet occurred to me that this might be a dismissal case, but when Mr. Langmead said this I understood why. Firefighters hold positions of trust and a conviction for dishonesty must immediately raise a serious issue; some would think that the failure to notify raises an issue that is no less serious.  (I refer to what I said in [another case] on 26 February 2003). The conduct of Mr. B had not made any of these charges any less serious.

However, it should also be said that the fact that the charges are serious does not mean that they should take a long time to be dealt with, or that either party has to engage in a form of trench warfare to get there.  Mr. B has had full access to the best legal advice that money can buy in this country.  On the basis of simple allegations that it would be difficult to refute, and which were not refuted in the record of interview – namely that Mr. B was convicted and did not report the proceedings, the appropriate legal advice – I am talking about the criminal law, not industrial law — would have been to give a complete explanation of the past and complete assurances for the future.  A plea to that effect would have taken an hour or two, or longer if required.  Depending on the quality of the explanation and assurances, Mr. B would have had a reasonable chance of retaining his employment.  Mr. B apparently chose not to adopt that course.

CONFLICTS OF INTEREST

The difficulties revealed in this case show why it is essential for the defendant to be present during all of these hearings, no matter how formal the occasion may be.  Defendants are required to be there in response to orders.  Just as importantly, I must be personally satisfied that they know what is going on.  The only times the defendant himself has turned up, the case has been promptly determined and, as it happens, contrary to the express wishes of the Board.

Someone wishing to promote a policy of obstruction or delay may be acting against the interests of an individual defendant who would otherwise be advised to co-operate with a view to keeping any penalty down. Doubtless the lawyers will be astute to detect this issue for the future. It is always unsettling to see someone hit the fence because of a problem in our system – and they happen every day -but this nearly happened to Mr. B in this case. It is ironic that those involved in ceasing to represent Mr. B were saying he would certainly get sacked here.

DISMISSAL

Finally, I wish to come back to the penalty in this case. This is the second case to be heard by me on the merits. In each of them, the Charging Officer on behalf of the Board recommended termination, but my job is to hold the line between the Board and firefighters or officers who fall foul of it. Neither defendant has been dismissed. In each case it was entirely appropriate for the charges to be laid – convictions were obtained and very significant penalties were imposed. Moreover, I have indicated that for the future, people found guilty of the same kind of conduct using computers for pornography or being guilty of dishonesty – will most likely be dismissed. That said, it is a very, very strong thing to take away someone’s livelihood. As I mentioned in the other case, it is a little like sending someone to gaol in the criminal context where -that  only  happens  first  up  in  a  limited  category  of  offences. The case for dismissal has to be both clear and convincing.

PRINCIPLES OF PENALTIES

We are talking about penalties for offences rather than sentences to be imposed for breaches of the criminal law, but in my view the law relating to sentencing, set out in the Sentencing Act 1991, does provide guidance. That law says that the only purposes for which sentences may be imposed are:

“(a)                                  to punish the offender to an extent and in a manner which is just in all of the circumstances; or

  • to deter the offender or other persons from committing offences of the same or similar character; or
  • to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
  • to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

to protect the community from the offender; or

a combination of two or more of those purposes.”

There must obviously be an element of punishment in this penalty, but only to an extent and in a manner “which is just in all of the circumstances … “. There is in my view no basis for concern about Mr. W offending in the same way again but there has to be an element of deterrence for others. I do not think we are concerned with rehabilitation or protection of the community from Mr. W, but there must also be in line with the general deterrent aspect, a condemnation by this Tribunal of this sort of conduct. It is common to talk of this last matter as vindicating the law or the victim (as is said to be the case in libel actions where the person making the claim seeks a vindication of their character). But vindication of the law or the MFB must not be allowed to degenerate into vindictiveness against the person responsible for the offence.

In order for the punishment to be “just in all of the circumstances” it must be proportionate to the offence. The essence of the offence is not in my view that Mr. W caused the damage to the vehicle or caused the conduct which made the MFB look stupid. I do not regard the crash as being the natural and probable consequence of his conduct, much less its inevitable consequence. Bad driving leading to an accident may well have been foreseeable but there would still be an issue about causation even in a civil claim for damages against Mr. W. The essence of his offence is that he allowed Mr. A to drive the vehicle, not that he permitted or much less caused the accident. As I remarked earlier, he would have been entitled to think that it was significantly more likely than not that Mr. A and he would have been able to negotiate the course without any significant problem.

We are, it must be remembered, talking about an error of judgment, and not a deliberate act involving greed or malice;  greed or malice were not present  in the heart of Mr. W when he allowed a mate to take the wheel of a fire truck near the end of a long day of looking after kids  with  cancer.  As I remarked at the bearing, we all make mistakes. Lawyers make mistakes, that is why they have insurance.   Judges make mistakes, that is why they have courts of appeal. The High Court of Australia can make the biggest mistakes of the lot but there are problems in doing anything about those.

The MFB sought the dismissal of Mr. W. Would this be a proportionate or fair penalty in the circumstances I have described? Is it fair to a man who has given twenty years’ service to the MFB and still has two children at home, to dismiss him for an error of judgment made while he has been trying to do something  for kids suffering from  cancer,  most  of  them, as I have said, terminally? It does seem to me that people in this country have shown a worrying lack of compassion for those who are suffering, and it would seem wrong deliberately to hurt someone like Mr. W who made a mistake while doing what he could fairly and decently to show such compassion.

The MFB is entitled to be vindicated and I think I am obliged to vindicate the law, but is it necessary to achieve this result to inflict this level of punishment on Mr. W? He is now 44 years of age. I think I may say from my own experience of affairs of the world that that is not a good time at which to be fired. For all I know firefighters might be like lawyers and be useless at anything else at that or any other age. Firing a firefighter at that age might be the equivalent of throwing him on to a scrap heap. That is a very hard thing to do, not just to the breadwinner, but to everybody else in his family, and I doubt whether that level of damage to a life could ever be warranted by any amount of damage to something inanimate like a fire truck.

Of course Mr. W must be accountable for what happened. But what does that mean? It certainly would not mean that it would be sensible in the circumstances  for the  MFB  or  its  insurers  to  ask him  to  pay  for the  damage.  Putting possible statutory intervention to one side, if anyone asserted that sort of right to recover the damage to a vehicle caused by alleged negligence of a firefighter in command of it, the result would I think be that there would be no firefighters on duty the next day. It is plain that Mr. W could not be made to account for what has happened out of his pocket. Does that mean it is appropriate to make him account for it out of his future and the future of his family?

Counsel for the defendants on a number of occasions sought to go into evidence about the practice of the MFB in relation to the attendance of MFB personnel at charity functions and of the practice of MFB on other matters that might be said to bear on this accident. It seemed to me then, and it is even more apparent to me now, that these issues were irrelevant to the charges that were laid and to what was in substance the defence of the defendants to those charges. This Tribunal may not be formally bound by the rules of evidence but that does not mean that I can disregard relevance, much less logic.

INDUSTRIAL ISSUES – RELEVANCE

In the absence of some formal statement on behalf of the defendants and what their defence was, I inferred that to the extent to which counsel for the defendants was seeking to lead evidence about these matters as being relevant to the charges, and he did insist they were relevant to the charges, it was with a view to asserting that the level of their culpability should be reduced to nil because of the culpability of the MFB in some respects. In my view a case mounted  on  that  basis  had  one  of  the  four  following prospects of success: nil, nix, nought and nothing. As I said at the time, I thought I had an obligation to save the taxpayers the expense of entertaining these mini-inquests. In the end I thought it may be just as well to go along with it, but I wish to make it clear that in the future if I rule on relevance in that way, I will much more strictly enforce the exclusion of material that in my opinion is not relevant. I might say that counsel for the defendant did not refer to any of these issues in closing submissions or the plea.  Can I say again that this tribunal is a disciplinary tribunal, not an industrial tribunal, and attempts to send its process off the rails will be dealt with more firmly in the future? Industrial issues have no place here.

WORDING OF CHARGES

This last complaint is I think one of dealing with the kinds of tactics that lawyers might employ in this kind of process. I do not think the traffic is all one way. I think something has to be done to simplify the charges. The practice at the moment is to lay as many charges as possible, in terms which used to be called duplicitous, and in language as closely conforming to the legislation as possible. This may I suppose be the result of the kind of paranoia to which all lawyers are reduced nowadays out of their fear of putting a foot out of line on matters of formality.

But I do hope it is clear that this Tribunal is not one that is bound by matters of formality and technicality. I do not think I can readily envisage a charge being dismissed merely because it has not been framed in the appropriate way as long as the defendant has been properly informed of the substance of the charge and has  had  an  appropriate  opportunity  to  deal  with  it.   I would much prefer to have the charges expressed in English with a reference to the relevant law and with as few alternatives as possible.  This is a matter not simply of fairness to the defendants – and we should not under-estimate the suspicion which most people outside the law have for the lawyers and their processes – but in order to make the process of this Tribunal function sensibly and in the interests of the taxpayers. It does not look good that these proceedings start with a blizzard of forensic inconsequentiality.

I should mention two of the windmills at which counsel for the defendants tilted in the course of his pursuit of ways to criticise the MFB. One was the suggestion that the MFB had no protocols in place on how members should behave at charity functions. It is in my view fanciful to suggest that any such protocol may have produced a different result at Avalon  Airfield,  but  I think that management should give careful  consideration  to  preparing  such  a protocol. It is obvious that these events occupy an important place in the calendar of the MFB and its personnel and it would be as well for the future for there to be some charter to which reference can be made if this kind of issue should take place again.

Another issue was that Mr. Burke gave evidence that he was unable to get information about a certain policy of the MFB because it was on the MFB Intranet and he had not been trained to read the Intranet. I suspect that the relevant policy dealt with cars in the fleet of MFB and was even more irrelevant to this case than any other of that kind of evidence. It also showed a tendency of people to say that before they can do anything they have to be trained by the MFB for that purpose. The MFB is not responsible for teaching these people how to read and write. The capacity to deal with the Internet, and a corporate Intranet, is now part of what most people would regard as literacy. Certainly, I think most taxpayers would regard a senior station officer who could not read his Intranet as being functionally illiterate. Something should be done about this immediately because any incident that occurs because people are in substance illiterate could have awful consequences for them and the MFB.

DUTY OF INTEGRITY

It was also said that he had not been given any training, and that there was no protocol for this use of the e-mail facilities.  Mr. Z is obviously adept at mechanically applying the facility and I do not think you need training in how not to abuse corporate property.  The essence of his offence is that he used public and corporate property for private use and to further personal objectives. In an appropriate case, an officer of a public company could be looking at being prosecuted under the Corporations Law for this kind of conduct. But an errand boy knows when he is making a mistake or abusing his position just as much as does a company director – their duties are not materially different.

The Board said that because of his stupid and indulgent behaviour a clear message should be given to the rest of the Brigade and that he should be demoted for six months. His counsel said he would submit to counselling. I have some concern about the utility of that course. After further discussion with counsel I ordered as follows:

Charges 1 and 2 are withdrawn.

On Charge 3  the  defendant  is  found  guilty  and  on  the  defendant undertaking:

To pay $500 to the Metropolitan Fire Brigade to be paid to  a charity nominated by me by payments of $50 a month commencing on 10 July 2003;  and

To be of good behaviour in the meantime;

I adjourn the further hearing of Charge 3 to 10 June 2005.

In effect, Mr. X is on a bond.  It is understood that the charity is a Royal Children’s Hospital charity that the MFB assists.

SENTENCING

That left the question of what was the appropriate penalty for Mr.Y. He has given twenty three years of service. He struck me in the witness box as a conscientious, loyal and dedicated officer. I think he has been worried sick by this experience. I am satisfied on his evidence that he had a genuine belief at the time that what he was doing was in order. I also accept that he now says he would not do the same thing again and that he very much regrets what has happened.  I am satisfied that there is no risk whatsoever to the Brigade or the public in Mr. Y remaining where he is.

The Brigade initially sought a reprimand and a fine. It has been suggested that he might have some counselling and I have asked Mr. M to look after that.  Mr. Y responded sensibly and co-operatively from the beginning. He gave full and frank answers at his interview.  He was equally frank and sensible during the conduct of the hearing, as were his representatives.   They did not seek to evade responsibility.  Those things weigh significantly. In all of the circumstances I think justice would be done if I directed that the proceeding be adjourned for twelve months and, unless something adverse happens in that time, be dismissed at the end of that period.  So that I am crystal clear on this, the effect of this direction will be that at the expiry of that twelve months term, there will be no adverse note on the record of Mr. Y at all.

NATURE OF DISCIPLINARY PROCEEDING

I want to make a couple of comments about the course of this proceeding. This might, in my view, be about the first time this Tribunal has proceeded properly as a disciplinary tribunal. The issue that was raised was one of substance for the proper running of the Brigade. There was a potential legal argument of some significance. Had Mr. Y gone badly in evidence, the consequences could have been very severe. Many witnesses were on call, on each side.

But the proceedings have been dealt with in what I regard as a timely fashion. The incident took place on 4 April 2003. The charges were laid on 10 June 2003. As I remarked, Mr. Y responded fully and candidly during the interview. That meant that the Board and I knew what the case was about before it started. Mr. Y was represented, and I may say supported, by two other officers who presented his case with clarity and conciseness. They were properly keen that the right lessons should be learned from this incident.

In a case like this it is necessary that the Tribunal have assistance at the highest level as to the relevant procedures. I got this from Mr. M, having invited counsel for the Board to have Mr. M address the Tribunal directly. After a clear and emphatic statement of the importance of the case by Mr. M, Mr. Y and his advisers saw fit not to push technical arguments, but rather preferred to face the reality of what he had done, or not done, in an endeavour to get the matter over with. As I have indicated, that weighed significantly with me on the question of penalty. I also think that lawyers tend to forget the strain that this kind of proceeding can create for people, and that most people just want to get it over with.

There is another aspect to this case.  Disciplinary proceedings are not just about  whacking people or pointing the finger. They are about maintaining standards. It will frequently be necessary to get some form of ruling or recommendation. If you wanted to be snooty about it, it might be like getting a ruling from the Ethics Committee  of the Victorian  Bar. This kind of process is not only entirely proper but absolutely necessary in an organisation whose discipline and standards are vital for public safety.

Even apparently trivial “incidents” may have to be investigated (although not necessarily the subject of a formal proceeding at the conclusion of the investigation). About twenty years ago, I acted for the Commonwealth agency responsible for civil aviation safety. They were worried that the Fol legislation would lead pilots not properly to report on “incidents”. An US expert instructed me that unless you get full reports on incidents, you are not able properly to prevent accidents, and that in any event the distinction between an incident and an accident is in itself usually just an accident. It is hard for an outfit like this one to say that it has been too careful.  In truth this Tribunal can be seen as part of an audit process, part of what makes this Brigade accountable to its owners.

I commend all of those concerned in the presentation of this case which was potentially a nasty and tricky case, but which was I think resolved sensibly, and before lunch on the first day.

If there is a moral of this case, it is that firefighters flirt with the rules not just at their own risk but our risk, and that they should never, ever flirt with a rule as fundamental as one about responding to an alarm of fire.

FIXING PENALTY – CO-OPERATION

The impression I get from all that I heard is that these men are very sorry for what happened and have adopted a responsible and sensible approach to the incident to ensure, so far as possible, that they have apologised for it and that it does not happen again. I have not been subjected to any attempt to avoid responsibility or to any “lawyerising” on the periphery. I do accept what their officers have said, that there is a minimal risk of the conduct being repeated. I think a fine of $2,000 would not be proportionate to the offence that has been committed. If this matter were before a magistrate, then those advising them would I think be reasonably confident, and rightly so, that they would be given a bond. I think the needs of the Brigade can be dealt with by proceeding in the way which I propose. I should repeat that if I do get any roughheads here who are found guilty of fighting with no extenuating circumstances, they can be looking to pay a fine of at least the equivalent of what it has cost the Brigade to keep them on duty on full pay. That may well run into thousands of dollars. But, for the reasons I have given, I decided on obtaining the assent of the defendants to adjourn the proceedings for twelve months subject to their giving two undertakings, first that each would pay $250 to the Bluey Day charity, and second to attend such  counselling as may  be  nominated for them by Mr. Z over the next twelve months.

Finally, apart from one case where the defendant was unrepresented, this was the first occasion we have had where the defendants have not been represented by a lawyer. That should I think be possible in most straightforward cases of a plea of guilty like this. There is of course a saving to the union if this result can be achieved. It would be good also if in future the parties could liaise with each other sufficiently far in advance of the hearing to see if such a course is being followed on behalf of the defendant and to see if the Charging Officer can also dispense with legal representation. I should say that if that can be done, that would also be a significant factor in the sentencing process.  It would be good to keep legal representation down to  a  decent  minimum  although  I acknowledge that you could get an argument about  what  is  a  minimum,  let alone what is decent.

UNIONS

Trade unions provide essential public services. This has been a recognised part of our legislative history, both state and federal, for more than a century, and has been part of our social fabric for longer. The interest that we all have in the proper functioning of our trade unions  goes  beyond  the  fact that  they  are  there  to  protect  and  advance the interests of their members. Their place in the natural scheme is recognised and endorsed by governments of both colours at all levels. They are essential to the working of this economy and this country as we know them.  Without trade unions, our economy would not work or be tolerated, and would certainly fail.  Too many Australians forget their roots and forget just how essential trade unions are to this country and how essential it is that each of them be properly able to carry out its functions.

Unions, both here and overseas, have historically seen themselves as pitted against corporations or governments bigger and stronger than they are. They therefore call for unity among their members. The claims of faith and the ties of comradeship may not mean a lot at the corporate end, but they are everything at the union end. Disunity is weakness. Unity is strength.  A member who seeks to subvert the United Firefighters Union in its essential functions of protecting and furthering the interests of members is likely to be seen as guilty of betrayal just as surely as someone seeking to subvert the Commonwealth in its essential functions is likely to be said to be guilty of treason. That is why the word scab is so loaded.  No greater charge can be laid against a union member.

ORDERS

This is an organisation whose command structure is recognised in its Act of Parliament, and the charges presently before this tribunal, and symbolised by its ranks, uniforms and customs. The officers were communicating to subordinates, themselves officers, on an issue of obvious importance to the Fire Brigade (and the union).   The discussion was not about footy tipping in the tearoom. Moreover, it took place in the context of an inspection, an occasion where firefighters present themselves so that the appropriate officer can satisfy himself that everything is being done by the book.  It was about the publication of an allegation that the MFB had scabs, an allegation that had to carry, and obviously had to carry, the consequences I have described.

Whatever else the signs I will refer to may have conveyed, they could be seen as evidence that the MFB cannot properly manage its affairs. Its members have turned on each other and they are allowed to show it. It is what the popular press calls a losing football team – a disorganised rabble. If the Fire Brigade cannot get its own house in order, how will it be when Osama Bin Laden calls?

It cannot be the law that an order is not an order unless the recipient understands it to be an order. Otherwise you could have a direction which was an order for one person but, to use the language of one defendant, a mere “ask” to another person. Likewise it cannot be the case that an order is not an order unless that term is used. That was the position of one defendant who then had to face the problem that in sixteen years he had never known the word order to be used to him, which left him with the conclusion that he had never received an order in sixteen years in the Fire Brigade.

As a matter of prudence, if not common sense, and if not courtesy, I would suggest that any officer who is contemplating taking further an incident of insubordination should expressly stipulate that he is giving an order, but I do not think the failure to give that stipulation – and there was a dispute here about whether such a stipulation was given – can be fatal to the suggestion that an order has been given. It would be absurd to suggest that directions given on the fire ground are not orders simply because that word is not used, and I think that absurdity continues through to places outside the fire ground.

We might pride ourselves on being egalitarian but at the end of the day, if push comes to shove, rank is there for a purpose in this Brigade and directives coming from it must be obeyed. The flip side of the counsel of precaution that I have given to officers is that subordinates in doubt about whether a request is an order should proceed on the footing that it is until they have resolved their doubt.

MISCONDUCT  OFF THE FIRE GROUND

It was first argued that the misconduct must be conduct that adversely affects the capacity of those involved to discharge their duties to the Fire Brigade and so assist the Fire Brigade to carry out its functions under its Act. I do not think this is right. I see nothing in the context that requires such a limitation. There are in this statutory provision creating offences express references to efficiency, competence, negligence and carelessness, as well as disgraceful or improper conduct. The example I put in argument was of a crew cruising up Collins Street in a fire truck on New Year’s Eve mooning, perhaps wishing to get home bare-arsed and faithful. That would seem to me to be definitive misconduct that would require an extremely lenient exercise here to allow the culprits to keep their job. While the incident may say nothing about the operational efficiency of the crew, it says everything about their discipline.

One of the reasons why this difficult kind of offence has to be kept, I think, is that it may suggest that there is a problem of discipline that has to be dealt with and it is quite wrong in my opinion to suggest that problems of discipline only matter if they take place on the fire ground – and there were recurrent suggestions to this effect during the course of this hearing.

Let me give other examples. Members of the SAS are drunk while on our time at their base; when charged they say everything will be okay because they will have sobered up by the time they get to the Solomons or Syria or the next sunny destination chosen for them by our government. A nursing sister is, contrary to regulations, smoking a cigar in the hospital car park; when charged by the matron he – they are both males – says everything is in order because he never smokes cigars during surgery in the theatre. As I remarked, breakdowns in discipline outside of the principal theatre of operations may indicate a problem that has  to be dealt with firmly in order to ensure that the organisation as a whole remains ready to respond when it really matters.

FREE SPEECH

It follows, therefore, that members of the union cannot claim anything like an absolute licence to say what they like just because the matter contains a reference to matters that they think are political or industrial. Whatever else the High Court has created in its constitutional right of free speech, it has not created a void in the general law just because the subject of discussion is either political or industrial.

Let me offer some examples of observations which obviously could not be tolerated.

The CEO is a cross between Hitler and Stalin.

Every union official has his hand in the till – their defence is that they cannot spell till.

Officers (Inspectors) of the Brigade are ratbags and traitors — at least Judas had the decency to give up his thirty pieces of silver.

Commissioned Officers of this Battalion have no guts – if you have to face bare steel look for a NCO.

The Superintendent of this Station is not qualified to be in charge – she is a dyke who would not know a crook if she fell over one.

The delegate of the CEO is a galah.  (Well, I suppose, they may have to let this one go through to the keeper for a number of reasons.)

For the reasons I have set out earlier, the charge of being a scab is a very strong one. What is being said here is that a whole rank of Brigade officers are the lowest of the low. In truth, it is my view that what is being asserted on behalf of the defendants here is an entitlement to denigrate and abuse every member of a rank because of industrial unease arising out of the circumstances of their appointment. The signs themselves are evidence of the breakdown of discipline. If you are going to have an offence of misconduct in an organisation founded on rank, then in my view there can be no doubt at all that this conduct would come within that offence. It would be for some a frontal assault on the constitution and integrity of the Brigade.  I should not have to apologise, and I do not apologise, for making this finding of misconduct because I am, after all, applying the law of the land.

INDUSTRIAL CONSEQUENCES

During the hearing, evidence was given of possible adverse industrial consequences of such a finding. I admitted that evidence over objection.  That is a mistake that I will not make again. It is I think embarrassing in the true sense of the tem1for a tribunal like this to receive that evidence. It is also likely to constitute a red rag to a bull or, perhaps, blood to a tiger. A disciplinary tribunal cannot be deflected from its duty by intimations of industrial unrest – but that does not mean that it has to shut its eyes to the whole of what is happening out there in the real world.

DIVIDED LOYALTIES

A couple of witnesses spoke of the divided loyalty of the men. They owe obligations to the Fire Brigade and obligations to their union and their mates. One of the defendants said that a request to bring this sign down put him in conflict with what he saw as being his duty to honour the wishes of his mates. The President of the ACTU referred to a similar difficulty.

Those who take their guidance from scripture might recall the advice to render unto Caesar what which is Caesar’s and to render unto God that which is God’s. This tribunal comes under the jurisdiction of Caesar – heaven only knows that I have no qualification whatsoever to preside over one in the other jurisdiction.

The men may have to face a difficult choice in circumstances like this, and it frequently happens that the obligations of the law conflict with what people see as the obligations of their conscience, but by and large I have to operate by and to enforce the law. (It is said that those sent to entrap Jesus were amazed at him when he distinguished what is due to Caesar from what is due to God, but I do not recommend that union members express amazement and so follow the Pharisees on this point, or, for that matter, any other.)

THE CLASS WAR

In the course of the hearing I heard a degree of evidence again with misgivings about its relevance to me – about the extent of the industrial problems facing the Brigade, and the history of scabs in the Brigade. Since I have heard all this evidence, I am going to say something about it. It was not good to listen to. The secretary of the union accepted that there had been a class war going on for ten years. He said that the scabs in the 1950s carried the brand to their graves and so will the present lot.

Sharan Burrow does of course have the experience and standing to see this problem in its context. You could not but be impressed by her conviction and her concern. She said that the relationship between the MFB and the UFU is dysfunctional. When I asked her what she meant by that, she said that there were elements of hatred that she had rarely seen the word used was hate – although she thought that the contact was better at the operational level.

It is not surprising that things are so bad if as a result of a class war people carry brands to their grave. They do not go gently into that good night – the innocents, as they see themselves on each side, will just rage, rage and rage against the dying of the light.  Both the MFB and the UFU will no doubt reflect carefully on the assessment of the ACTU President: she is uniquely placed to make the diagnosis. In my own observation, the hate is not so much generational as tribal, and I have seen the faces of men on either side cloud over with puzzlement, anger or despair when confronted with it.

But I was repeatedly assured that none of this had any impact on the performance of the Brigade of its essential functions. That is a proposition which, despite its august proponents, defies belief.  I do not know why the point

Was pressed, bit was, and I will deal with it.  I reject it.

Secondly, there is the evidence of common sense and common experience. The MFB did not come from Mars. It depends on co-operation. How well do you co-operate with someone you hate? Until recently I was a partner in a firm that had a staff of 1,500 and a turnover in excess of $250 million (compared to a staff of about 2,300 and a budget of about $190 million for the MFB). If I had been told that a whole line of thirty managers was hated by the staff under them, I would have been terrified, not just over the capacity of the firm to deliver its product, but to survive.  I am sure that 200 other partners would have felt exactly the same.

I cannot believe that the officers and firefighters of this Brigade deserve all of this. This Brigade boasts of being a happy family and plainly it is not. The people I have met are all decent people who would not wish to remain the prisoners of history. They must believe that it is time for people on both sides to come out of the trenches dug in another century and to abandon a mind-set

 

about caste that surely has no place in this country. It must be time for the hate to stop. There are, after all, many who still believe that vengeance belongs to someone else; some see that proposition as a major premise of the new part of the major religious text in use in this country.

But even if it is correct to say that there is no evidence that the industrial strife impairs operational efficiency, as the union and the ACTU contend, does this mean that a corporation does not have to worry about industrial strife unless there is a measurable effect on productivity (a proposition not contended for by the union or the ACTU)? Such a response would be a prescription for failure in the public or private sector, and it would in my opinion be wrong – quite possibly unlawfully wrong – for those responsible for corporate governance to proceed on that basis.  Something has to be done.

DISMISSAL  FOR DISOBEDIENCE

I want to stress that whether or not that offer is accepted, it is a once-off amnesty.  If in future any firefighter is presented before this tribunal on a charge of failing to obey an order, he should attend on the footing that he will not be an employee of the Fire Brigade any longer if he is found guilty – out he will go. This is not meant as an empty statement. I have the clearest view that it is essential in this organisation for its officers to be respected and for their orders to be obeyed, and whether the context is industrial, celestial, terrestrial or just bestial, a failure to obey orders will almost certainly lead to dismissal.

PLAYING GAMES

In truth I think that what we have here is another instance of what has appeared to me in my time here to be another cultural problem within the MFB. It is that there is a tendency for people to do things by the book when it suits them. There is a tendency to legalism or literalism or verbalism that you would expect from people who relish performing as bush lawyers. People exult in subtlety. An example was the written confirmation of an order. It was seriously submitted that this could not work because there was no order in the first place. You may or may not be able to interpret a tax statute like that – I do not think you can – but you cannot operate an emergency service by that kind of sophistry.

There seems to be a written protocol for everything:  where there is one there will certainly be reason for argument about what it means;   where there is not, that is plainly the fault of the outfit in not having invented one in the first place. I find all of this sort  of nonsense, coyness or cuteness – to be as demeaning as it is pervasive, but I want to make one thing plain – and that is that the people who  get  before  this  tribunal  because  they  have  crossed  over  the  line  while playing by the book can expect to get the book  thrown right back  at them head high.

FIXING  PENALTIES

Thirdly, as I intimated m my prev10us reasons, I think that the MFB has obtained rulings and declarations that should assist it. There were some matters in  issue  which  in  my  view  will  not  be  in  substantial  issue  again.  Most importantly, I hope that I have made it absolutely clear that people will not be able to avoid in future the consequences of their actions in a disciplinary tribunal simply by intoning the mantra “industrial”. There is no form of apartheid in this country that says there is one law for one lot of people and another law for those who find themselves in circumstances that they may characterise as industrial – whatever that may mean. It is not for me to see that these observations reach those for whom they were intended, but I will proceed in the future on the footing that anyone coming before me has been  at  all relevant times on express notice of what has been said here about these matters.

Fourthly, it is the fact that these disciplinary procedures have, for reasons that do not reflect badly on management, not been properly invoked for some time. Where you have laws that have not been enforced for a period, you can have a serious problem that the law enforcement agency may want to duck when someone says it is time to start cranking up the law again. A guy wrote a play about this. His name was Shakespeare. The play is called Measure for Measure. The duke had let slip the laws regulating hookers and brothels in Vienna.  He said:

We have strict statutes and most biting laws,

The needful bits and curbs to headstrong wills,

Which for this fourteen  years we have let slip;

Even like an o ‘ergrown lion in a cave,

That goes not out to prey  ….

There was a lot of nastiness and ill-feeling when the delegate of the duke came to enforce the laws. All hell broke loose.  The whole point of the play is that the phrase Measure for Measure may not always be the most sensible way of proceeding, as students of the Middle East, or the Melbourne underground, or the Australian industrial scene may have surmised. I have on other occasions felt the need to say to defendants that while the axe was not going to fall on them, it would fall on anyone else in a similar position, and this is a factor which I think is appropriate to consider in this case, not least because of the evidence about the prevalence of these signs at the time of the events giving rise to these  charges.

Fifthly, these men have apologised for what they did. In the context of a decades old class war I regard the giving of an apology as very significant. I have spent a significant part of the last thirty years advising people on giving or receiving apologies in another context, and I know lawyers fret a lot about the words used, but at the end of the day what counts is the fact that someone has been prepared to say, and say publicly, “I am sorry for what I did”, and has given an assurance that they will try to avoid this kind of problem in the future. It did seem to me that these men were logically committed to this course having said that had they believed they were getting an order they would have obeyed it, but experience also suggests to me that logic is not the final determinant of the actions of all of the parties in this arena. I am aware that apologies are invoked as a penal tool in military tribunals and I must say for my own part that I regard them as being a useful expedient here. For the reasons I have given, I think that the giving of an apology in this context was significant and I would hope it has been received as such.

The Most Exclusive Men’s Club in Melbourne

 

Some people think that the most exclusive men’s club in Melbourne is the Melbourne Club at 36 Collins Street.  They are wrong.  It is the Melbourne Fire Brigade.  I have been a member of both clubs, for more than ten years in each case, and I should know.

I got the pink slip from the MFB the other day after about 13 years as their disciplinary officer hearing charges under their act of Parliament.  I acted as the delegate of the CEO in the powers granted to him by that act to hear and determine disciplinary charges.  In a similar fashion, I had for about 18 years acted in the place of the taxing authorities of this state to hear and determine objections to assessments of tax under Acts of the Victorian Parliament.  Tribunal members do not have the protection of life tenure under the Act of Settlement, and this is the second time I have been reminded of that.

In a memoir I wrote about my professional life, that has been published on both Amazon and Apple under the name ‘Confessions of a Barrister’, I said:

That left the Fire Brigade.  Their statute left the CEO to hear disciplinary charges.  The CEO wanted to be involved in laying them, not hearing them.  No one had been successfully charged for years, if ever.  I advised him to delegate those powers.  His lawyers said that he could not.  I gave different advice, which the Brigade accepted.  They asked who should do it.  I asked a retired County Court judge.  He accepted, but then declined when the government said that it would affect his pension.  The Brigade asked me to do it, and I accepted.

There was a far bigger mess than I had inherited in tax cases.  There was a kind of institutional industrial disease.  No one ever got to trial.  They would just put up some nonsense from a tame doctor.  They had to learn that nothing short of a vigorously cross examined doctor would get an adjournment.  As for ‘stress’, if someone was too stressed to come to us, we would go to them – I could just imagine pairs of eyes peering through the venetians as a cavalcade of police cars and fire trucks rolled up a street in Broadmeadows. 

The other problem was the lawyers.  I was copping the bush lawyer component of the industrial bar and the criminal bar.  I wrote a paper called ‘Bush Lawyers’.  They have an answer to everything except the question.  The industrial people were just away with the birds talking juristic nonsense.  The criminal people were into game-playing and head-kicking, and both blow up in your face in a disciplinary tribunal.

But the worst problem was the class war, something from another time or another place.  Sharan Burrow, then the President of the ACTU, and a most impressive woman, gave evidence before me in one case.  I was very relieved when she said that this was the most poisonous industrial relationship she had seen. 

One case involved an allegation of ‘scabs’, the most lethal word in the industrial lexicon.  We got into the third day – two too many.  Counsel for the union was cross-examining the investigating officer about the investigation.  How was this relevant?  The act says there has to be an investigation – before someone was charged.  That is hardly surprising.  Then the horror of it struck me – if counsel could show there had been no real investigation, he would then submit that the charge had not been properly laid.  This was the sort of nonsense that was being spruiked.  Pure bullshit.

During a break in play, I ran into the union secretary.  I said I could give him a quote.  He asked what I meant.  I said that if his bloke went down, I would not fire him.  The matter was all over an hour or so later.  I understand there may be problems with quotes, but something had to be done to stop this effusion of public money.

I told the Brigade that I would talk to the Union.  I thought that they should get to meet someone who had such power over their members.  I thought that management might try to nobble me and that fairness required that the union have an equal opportunity to try to do the same.  I had the secretary and president home to dinner, in what became a very boozy affair.  The secretary had a very big public profile, but he wanted me to be inspected by Sharan Burrow and a big mover in the Labor Party. 

In the upshot, the union bought into the process and managing the problem, and I felt as comfortable in talking to them as to management about general issues before the tribunal – such as trying to reduce the role of lawyers, and trying to stop ‘lawyerising’.  I told the union secretary at the beginning that there were only two rules – no verbals, and no discussion of individual cases.  He has observed both of those rules. 

I was invited to the annual dinner dance of the union at the San Remo Ballroom in Carlton after the then CEO had been dropped off the list.  He then rang me while I was in the bath listening to Haydn’s Nelson Mass.  He asked me not to go.  I said that I had accepted and that I had arranged to take a former articled clerk.  This was Karen Knowles who was also a singer.  This did not improve the humour of the CEO.  I later wondered why the firies were asking Kas for her autograph but not me.  Since then I have got on very well with both sides, which is as it should be.

The relative peace did not mean that I was not appealed from as well as getting sued in the Federal Court, the Supreme Court, and some curious industrial outfit, but nothing much seemed to come from any of my beneficence to the bar.

We got through the backlog, and established sensible ways to get through the business.  One morning I actually had a case with no lawyer on either side, and I am sorry that there is not more of this.  From time to time I would hear mutterings that I was not being hard enough.  I will just mention one case. 

A fire truck on display at a charity day for kids dying of cancer rolled over on TV and there was embarrassment and anger at Brigade HQ.  They charged the man driving – who had surrendered the wheel to a mate – and the officer in charge – who was nowhere near the vehicle when it fell over.  I saw no case against him and I dismissed that charge at the close of the evidence of the Brigade.  I had to give a suspension to the man who should have been driving – his name was W.

During the hearing, I got them to take me for a ride on one of these vehicles with both counsel.  As we got going, we passed a handsome woman who had been in the tribunal room.  I was told that she was the wife of the officer who had been charged – and the mother of nine children!  When the hearing resumed, I asked counsel for the Brigade what penalty he would seek if the charges were proved.  Dismissal.  For both?  Yes.  I wondered how this would go down in the people’s daily – a fire brigade officer, with a stainless record after 20 years, and the father of nine children, had been fired for giving of his spare time to attend a charity for kids dying of cancer, for an accident that he had nothing to do with.  I also wondered how long it would be before the comrades returned to work.

The case of Mr W was hardly less interesting.  He had grown up with the guy that he gave the wheel to.  They had been garbos together.  They had both therefore had experience in driving large heavy vehicles.  But while W went from being garbo to firie, his mate went into business and became very successful and very rich.  He also became committed to charities.  He gave evidence before me, and he was very impressive. 

I met both these guys twice later.  One was at a football presentation that the union had invited me to.  (It was a VFL function; the comrades are not toffs.)  The secretary was late – as usual.  I was directed to a table.  The guy next to me asked if I knew who he was.  No, mate.  It was Mr W!  I cursed the secretary for being late, but Mr W and his mate (the charitable ex-garbo) and I got on very well. 

The second meeting was at the greatly favoured San Remo.  It was a packed house.  It was a living wake held in honour of Mr W before his expected death from cancer.  I told him that I was honoured to have been invited, and I meant it.  It was a very generous and decent gesture of both Mr W and his mate – and the union.

The pink slip arrived by email on a Friday afternoon.  Someone must have told the senders that that is the best time of the week to go shooting.  I replied that day asking who was taking my place, and a week or so later, I sent another letter to the CEO asking the questions set out at the end of this note.  The only reply I got was an attempt to gag me – except that they did say that they had ‘not made any decision as to a replacement but have instead decided to appoint a delegate on a case by case basis when the need arises to assist the organisation.’

It is curious that they have discontinued a process without deciding on a replacement – and without giving any reasons for their decision.  The inference may be open that they have done what was required of them by firing me and that they will worry about what to do with an act of our Parliament later – or just let it rot.  You might care to ask them what they had in mind.

To enter into the men’s club of the MFB is a far more unworldly act than entering into the Melbourne Club.  It is somewhere between Alice in Wonderland and One Flew over the Cuckoo’s Nest, although here there is a real issue about who constitutes ‘the Combine’ here.  When I started hearing these cases in 2003, I used to go back to my chambers and collar a colleague at random to ask them to assure me that it was not I who was mad.  It really was that unnerving – and, sadly, it stayed that way most of the time later.  People who have not been in it can never know what it is like.  People who have been in it can take a long time to get over it.  If you think I am joking, or laying it on too thick, you are wrong.

The members of this club enjoy privileges beyond the dreams of most Australians, and the club holds enough reserves of money to pay lawyers to defend those privileges and keep the men in the style of life to which they have become accustomed.  The UFU has been a major benefactor of the Victorian legal profession for generations.  It is ironic that the lawyers are then instructed to portray the members of this club as poor, silly people who are quite incapable of thinking for themselves – without prejudice to their God-given entitlement to pay rates that would not be possible outside the public sector.

Let me give you as an example of the unworldliness of it all some idea of what happened in the last case that I heard.

I had not been asked to hear a case for years.  Was discipline at the MFB so tight?  A highly ranked officer – that of Commander – was charged with having obscene material on his MFB computer.  There was no doubt that the material was on his computer, and after less than a minute looking at it, the average member of the community would have had no doubt that a lot of it was obscene, if not worse.  A lot of it was simply an offence against humanity.  I never heard anything resembling a defence on the merits.  There wasn’t one.  Even though the man’s job was on the line for this kind of offence, a properly presented plea would have disposed of the case in about an hour – and for the best kind of result that a person in the position of this accused could have sought.  At least, that is what would have happened in a sane court or tribunal.

Instead, the case went clean off the rails at the start.  During the interview process, the accused – I will call him Smith – was assisted by another commander who, as it turned out, had committed a similar offence some time back.  The commander assisting Smith told the charging officer that Smith was not a member of the union (the UFU) and since Smith had no other advice, he would assist Smith in the process.  This other commander apparently had a law degree.  Neither he nor Smith was inclined to concede that Smith had breached any relevant obligation.  The record of interview was a farce, and an embarrassment for all involved.  God only knows what the public would think if they found out the kind of nonsense put on by people of supposed rank.

Later Smith apologised in writing for having breached a written Policy of the MFB.  That of course did not mean that he was making any admission, much less that he would accept responsibility by pleading guilty.  As commonly happens in that tribunal, one party wanted to have his cake and to eat it.

When the case was called on, Smith did not appear.  This, to put it softly, is an unfortunate occurrence in hearing a disciplinary charge against a member of a uniformed force that is called on in emergencies.  There was no evidence as to why Smith was not there, but it was quite clear that he was aware of the time and place of the hearing.  We therefore proceeded in his absence.  Then I was told that Smith was not there because he had been on night shift.  It is about this time that you can feel the descent into Wonderland starting.  Then I was asked by counsel for the MFB to put the hearing over to the following day to allow Smith to appear.  I reluctantly agreed to that course.

The following day Smith was again not present in the William Cooper Justice Centre – although I had passed him serenely sunning himself on the steps of Owen Dixon Chambers on my way to court.  Instead of Smith, there was a letter from lawyers threatening Supreme Court proceedings and there was correspondence with the union talking about proceedings before the Fair Work Commission.  Although Smith was not there, he was represented by threats of legal action in at least one state or one federal jurisdiction or both.  In the absence of an injunction from a court, I wanted to proceed.  The matters were serious and there was simply no evidence that might in some way justify the absence of Smith.

I was then told by the MFB that it agreed to a further adjournment – and for some weeks.  Then the matter had to be put over for procedural reasons, some of which related to the work schedule of Smith.  By now the familiar Wonderland feeling was becoming oppressive and I was not getting any help from the Brigade.

The solicitors for Smith then said they would apply that I should step aside from hearing the case because of comments I had made about the seriousness of the case.  The application would be made on the basis of apprehended bias.  They also said that they had applied to the Fair Work Commission to ‘determine the proper forum for the determination of disciplinary proceedings brought against’ Smith.  I scheduled the hearing of the bias application for 8 AM on the footing that the hearing date would stand, but that the lawyers for Smith could go to the Supreme Court and seek an injunction against me if they lost their bias application.

When this application came on at 8 AM, Smith was again not there.  But this time he was represented by one of Her Majesty’s Counsel and a solicitor.  They were two of the nine lawyers in the court room that morning.  NINE.  For a matter that could and should have been disposed of in an hour in an office at the MFB – preferably with no lawyers involved at all.

The bias application was competently argued by both counsel in less than an hour, as I recall, and I gave an extensive ruling rejecting the application the next day.  (I had of course been handed folders of cases.)  So that you can understand how unreal all this forensic posturing was, I will set out some extracts from that decision.

The charges allege that the material is offensive, sexist, racist and obscene.  One set of photos shows a man whose genitals have been removed and stuffed in his mouth.  The email comment is ‘Ouch!’  One shows a woman apparently trying to effect vaginal penetration with a form of fire extinguisher.  One shows the rescue of a man whose car had gone down a well in, I think Saudi Arabia, and as I recall the conclusion is to the effect ‘That is why Allah gave them fucking camels.’  One asks: ‘What is the race that stops a nation.’ ‘Aboriginal.’  No one would want to spend time on this material, but it is difficult to think of any interest group or minority in this country that would not be seriously affronted, and possibly provoked.

So, the evidence raises serious issues about the conduct of an officer of the Brigade.  Then there is the significance of the rank of Mr [Smith].  In a case heard three years ago, I said of another commander:

A commander is a very high ranking officer in the MFB.  There are only two between him and the top.  This one told me that he had been paid more than twice the average wage and twice what this nation pays its secondary teachers in government schools.  He finally accepted that the average taxpayer would be appalled to hear that someone in his position had collected $1300 for not turning up – and was sitting on the money.  He had not considered refunding the money…

If a real question arises as to the conduct of someone in a position of trust, that person should say candidly what happened.  If you want to put that as a legal proposition, the person trusted must respond in good faith.

Commander X did not do this.  He behaved as if he saw the investigation as a kind of game, and as if his integrity were just a kind of bargaining chip.  In his reaction to investigators, and in his evidence here, Commander X demeaned his office and rank and risked damage to the standing of the Brigade.

… any member of the MFB who prevaricates or plays games with investigators or in here can expect to be dealt with very firmly.  If the initial conduct of this commander was bad, his response was worse.  It suggests what might be called an attitude problem.

 

This question of attitude is the most troubling.  These people work for terms and conditions beyond the dreams of most Australians, let alone people elsewhere.  This man gets paid an amount beyond the comprehension of a meat-worker at the back of Kyneton, let alone a Sudanese migrant newly come to Melton.  But this commander looks unable to accept the responsibilities that come with this high rank and great remuneration.  The traffic looks one way.  It is as if firefighters like this commander have been seduced by their own success.

A commander is therefore a person of high rank.  The higher the rank, the higher is the sense of duty expected and required of the person on whom the rank is conferred.  That person stands in a position of trust and confidence to their employer.  Any employee is legally obliged to do his or her job loyally and honestly.  That means that they cannot use company property for private purposes, unless that use might fairly be characterized as incidental, or for improper purposes. 

This matter boils down to a simple issue of trust.  In the light of the evidence of what was on the computer, and the response of Mr [Smith] to the charges he now faces, can he be trusted to discharge the duties owed by him to the Brigade as a commander? 

Later, I referred to a memorandum dated 17 September 2003 that I sent to the Brigade and the union reflecting on the first six months of a jurisdiction that had fallen into disuse.  It contained some shockingly bad prophecies:

‘The procedure had not been working properly for some time.  It is not surprising that there were some problems in getting it cranked up.  People on both sides had to come to grips with a new kind of procedure.  So did the Tribunal.  The union wanted to test some questions in the AIRC and the Federal Court.  Most of these issues have now been ironed out.  In the past, disciplinary processes have stalled when ‘industrial’ issues led to an application to the AIRC or the Federal Court.  It is most unlikely this will ever happen again.’

So much for hope.  And then this:

‘There is a recurring problem of legalism that I have referred to in a number of contexts.  These matters should be dealt with as far as possible as issues between members of the Fire Brigade and not between lawyers.  There has been too great a tendency – at times on both sides – to leave matters to the lawyers.  Bush lawyers are to be discouraged whether they are qualified as lawyers or not, and reliance on technicalities is not encouraged either.  Because of its history, our industrial law has been beset by legalism and technicality, but there is no need to import these factors into disciplinary proceedings.  This message, I think, is getting through, but it is slow.’

And this:

‘A number of the disciplinary proceedings arose out of a context that could be characterized as industrial.  In truth, every disciplinary proceeding can be so characterised if it arises out of something done by members in the course of their duties and they are subject to industrial laws and industrial agreements.  It is now accepted that the fact that a context may in some way be said to be industrial, or an industrial dispute, means nothing for the competency of this Tribunal, which is a disciplinary tribunal, to deal with the matter, or to the nature of the case as a whole.  We can I think forget the industrial mantra.

Well, we now appear to have undergone a generational regression, but I set out those remarks so that people outside will understand the sense of déjà vu that those running the Brigade must undergo when the statutory process has to be cranked up again after a period of inaction.  These problems were adverted to in Measure for Measure, but that happy ending looks a long way back now. 

Perhaps I might make a further reference to the obvious need for discipline in a uniformed force that may be called upon to respond to a terrorist attack.  I also refer to the obvious need for the Victorian statute to give the CEO the power and duty to enforce discipline in his Brigade.  Until yesterday, I had thought that it was axiomatic that only the Victorian parliament could alter that dispensation.

‘I have referred to what the principal Act says under the heading ‘Discipline’.  This case is being dealt with under other provisions of the same law.  We are considering disciplinary charges. In the operation of an organisation like the Brigade, the maintenance of discipline will ordinarily be seen as vital to the maintenance of its capacity and readiness to carry out its functions relating to fires and emergencies.  It is difficult to envisage a fire brigade where this is not the case other than a fire brigade run by the Marx Brothers.

It would simply not make sense to talk of an undisciplined readiness for a fire or emergency.  It might make sense to talk of an undisciplined response, but that is the last thing that the Brigade or the people of Victoria would want.  Terrorists prey on unreadiness and thrive on indiscipline.

It is therefore essential that the procedures dealing with discipline work promptly and effectively, and that they be seen to work promptly and effectively.  This is very important.  If the Brigade cannot run its own disciplinary procedures properly, how can it be expected to cope with an emergency?

By the disciplinary procedures of the Act, the Victorian Parliament has given the CEO, and no‑one else except his delegate, the duty to enforce the responsibilities the Parliament has put on firefighters.  Since the process derives from the parliament, it can only be changed by the parliament.  It follows in my view that the determination of discipline charges under the principal Act should, at least as a general rule, only be deferred for compelling reasons founded on convincing evidence.  I would expect each party to be equally interested in obtaining a determination of issues with all due expedition.  However that may be, the people of Victoria are in my view entitled to no less. 

That is the background to the present application.  I apologise for its length, but I do not want anyone reading this to have any misapprehension about what is at stake in this proceeding.

I then made some comments about the differences between the Fair Work Commission and the Victorian statutory tribunal.

Because I am not an industrial lawyer, I know very little about the Fair Work Commission, just as they know very little about me.  This tribunal is of the state; that is of the Commonwealth.  They occupy different worlds, in my opinion, as I have endeavoured to show in my remarks above about the irrelevance of the ‘industrial’ mantra.  The Commonwealth body focuses on the rights of employees, and the duties of employers.  The state tribunal focuses on the duties of employees and the corresponding rights of the employer.  One looks at obligations founded primarily in contract and regulated by statute; the other looks at obligations at common law attracted by statute.  One is concerned with regulating employment at large and achieving industrial peace; the other is concerned with providing an essential service through a uniformed force. 

Above all, the Fair Work Commission seeks to arrive at agreements and settlements, and they encourage off the record discussions for deals.  This tribunal is here to make findings of fact and decisions of law to maintain discipline not peace.  To the contrary, our act envisages that the CEO will make a binding determination to resolve issues relating to discipline.  That is why I said in my memorandum that you cannot in this tribunal have a ‘settlement’ as such and that the only way you can achieve a ‘satisfactory resolution’ of the issues raised by a charge under the act is for the statutory officer to hear them and determine them as expeditiously as possible.  All this has been dealt with here before.  The differences between the state and federal bodies, with all respect to those who contend the contrary, seem to me to be both inevitable and irreconcilable.

In short, industrial peace and the role of a uniformed force protecting public safety are very different things.  That is why I say that the two tribunals are in different worlds – different universes.  It would in my view make as much sense to ask me to sit on the Fair Work Commission as it would to ask one of its members to sit here.  Neither of us would know what to do. 

As a result of what I am now told by Mr Grace, that opinion of mine may need some correction.  At an appropriate time therefore, we need to consider the consequences of the overlap, to use a neutral term, between the two bodies, and the impact of that overlap on the due administration of justice under an act of the Parliament of the State of Victoria.  I cannot help thinking that some industrial lawyers are prone to forget that the public has rights too.  (Some see a similar tendency in some tax lawyers.)

Later I said:

Without wishing to harp on the point, it is a little difficult to envisage the Fair Work Commission performing those functions.  What if a firefighter belts an officer, or vice versa – can the culprit avoid being dealt with by the CEO under the act by invoking the powers of the Fair Work Commission?  Who decides what cases the CEO can take?  I was originally appointed as the delegate by a CEO who said that it was more important that he was ensuring that charges were in fact laid than that he personally should hear them.  I can now better appreciate his prescience.

At the end of the decision, I said:

Only God knows what the hypothetical observer might think if told what I have now been told.  The tribunal got cranky with Mr [Smith] for not being there on day one, but Mr [Smith] was apparently under the impression that his federal application had sterilized the proceedings brought by the Brigade.  Then on the second morning, the tribunal member breezes past Mr [Smith] standing on the steps of Owen Dixon Chambers and thinks that he is looking remarkably serene for a man who has just a sabre rattled before him, but Lo!, Mr [Smith] was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned.  So the tribunal member gets even crankier with Mr Smith, and this time with the Brigade also.  And all because wires got crossed.  It does not bear thinking of how the man on the Storm terraces would respond to this sad tale.  It would not be printable here.  If he were told of the costs and the lawyers involved, then, in NRL terms, things could get really ugly.

I have indicated that if I reached the decision that I have now reached, and Mr [Smith] wanted to challenge it in the Supreme Court, then I would expect to proceed with the hearing on Wednesday 13 May unless I was directed otherwise by that Court.  It hardly becomes me to invite such a challenge, but it would subject a struggling and beleaguered statutory process to the cauterizing glare of public scrutiny by a superior court, and, if I may be forgiven the phrase, that may be just what the doctor ordered.

It will I think be clear to informed observers that this tribunal, and perhaps this Brigade, has seen better days.  This is, I think, the first case for about three years and just the second case in five years.  The sound and fury that now meets this rejuvenation of the process bears a sadly eerie resemblance to that which greeted the rejuvenation about twelve years ago.  Even some of the faces remain the same.  I make no comment on previous administrations, but it is clear to me that the present CEO and his staff are determined to fulfil their obligations under the statute, and to make this disciplinary process work.  I am equally determined to do all on my part to the same end, and I would hope that anyone with any interest in the Brigade has the same objective. 

Because the issues of jurisdiction between state and federal bodies was important, I wrote to both Attorneys-General setting out what I thought were the major questions.  Neither gave a substantive answer.  It is frankly worrying when Attorneys-General decline to deal with issues in the administration of justice – which were what I was facing.

Well, Mr Smith did not go to the Supreme Court, and he abandoned his claim before the Fair Work Commission.  He was dealt with under the Victorian law that he should have been dealt with under.  But he and those behind him – even though he was not a member of the union at the time of the offences – have got their way.  I was told other charges were in the pipeline, but it now appears that no more charges will be laid under that Victorian statute.

Does this mean that the Victorian statute has been dispensed with as if by the dispensing power of a Stuart king, and that the people of Victoria will have to rely on the Fair Work Commission to protect them and the discipline in one of their emergency services?   Have we seen a kind of casual hijack?

Irrespective of the answer to that question, what was the role of the government in all these events?  How is a member of a statutory tribunal expected to react when told by one of Her Majesty’s Counsel that the accused man he passed on the way to court ‘was not on his way to the tribunal, but is standing there with a letter from the Chief of Staff of the Minister saying that the hearing would be adjourned’?   What role did that Minister have in this phase of the administration of justice?  How and when did ministers of the Crown in this state get the right to dictate or forecast the outcome of legal proceedings?

It is curious, is it not?  Over about thirteen years standing in for the CEO, I never see or hear from any member of the Board, and I meet some CEO’s occasionally, and some not at all, but as soon as the Chief of Staff of the Minister gets involved, I am abolished.  Pop goes the weasel!  Those who think that Spring Street or Treasury Place are places for eunuchs may have to think again.  Whether that kind of intervention by government in the administration of justice is appropriate is altogether a different question.  As it happens, it is a question that was agitated in the fall of the first Labour government in England as a result of the Campbell Case.

There you have a cameo if you like of the games that people can play with other people’s money.  You are not allowed to do that in the Melbourne Club but it happens all the time in the Fire Brigade.  Sir Daryl Dawson, formerly of the High Court, told me that it was like this back in the ‘60’s when he was at the bar doing a lot of work in MFB cases.  God only knows the truckloads of money that the lawyers have carted home from the MFB.  (They get nothing out of the Melbourne Club, whose members I suspect may not be as well off as the members of the MFB.)

Before I go back to Mr Smith, let me refer to three comments in the tribunal on why so-called ‘industrial’ issues have no place in a disciplinary tribunal.

In the absence of some formal statement on behalf of the defendants and what their defence was, I inferred that to the extent to which counsel for the defendants was seeking to lead evidence about these matters as being relevant to the charges, and he did insist they were relevant to the charges, it was with a view to asserting that the level of their culpability should be reduced to nil because of the culpability of the MFB in some respects. In my view a case mounted  on  that  basis  had  one  of  the  four  following prospects of success nil, nix, nought and nothing. As I said at the time, I thought I had an obligation to save the taxpayers the expense of entertaining these mini-inquests. In the end I thought it may be just as well to go along with it, but I wish to make it clear that in the future if I rule on relevance in that way, I will much more strictly enforce the exclusion of material that in my opinion is not relevant. I might say that counsel for the defendant did not refer to any of these issues in closing submissions or the plea. Can I say again that this tribunal is a disciplinary tribunal, not an industrial tribunal, and attempts to send its process off the rails will be dealt with more firmly in the future? Industrial issues have no place here.

Then there is the obvious problem of a conflict of interests if others want to use the accused as a vehicle to pursue some ‘industrial’ agenda.

One conflict of interest has been  detected in this case. Someone wishing to promote a policy of obstruction or delay may be acting against the interests of an individual defendant who would otherwise be advised to co-operate with a view to keeping any penalty down. Doubtless the lawyers will be astute to detect this issue for the future. It is always unsettling to see someone hit the fence because of a problem in our system and they happen every day -but this nearly happened to Mr. B in this case. It is ironic that those involved in ceasing to represent Mr. B were saying he would certainly get sacked here.

Then there is the class war.

In the course of the hearing I heard a degree of evidence – again with misgivings about its relevance to me about the extent of the industrial problems facing the Brigade, and the history of scabs in the Brigade. Since I have heard all this evidence, I am going to say something about it. It was not good to listen to. The secretary of the union accepted that there had been a class war going on for ten years. He said that the scabs in the 1950s carried the brand to their graves and so will the present lot.

Sharan Burrow does of course have the experience and standing to see this problem in its context. You could not but be impressed by her conviction and her concern. She said that the relationship between the MFB and the UFU is dysfunctional. When I asked her what she meant by that, she said that there were elements of hatred that she had rarely seen – the word used was hate – although she thought that the contact was better at the operational level.

It is not surprising that things are so bad if as a result of a class war people carry brands to their grave. They do not go gently into that good night – the innocents, as they see themselves on each side, will just rage, rage and rage against the dying of the light.  Both the MFB and the UFU will no doubt reflect carefully on the assessment of the ACTU President: she is uniquely placed to make the diagnosis. In my own observation, the hate is not so much generational as tribal, and I have seen the faces of men on either side cloud over with puzzlement, anger or despair when confronted with it.

But I was repeatedly assured that none of this had any impact on the performance of the Brigade of its essential functions. That is a proposition which, despite its august proponents, defies belief.  

All of those observations were made in a memorandum made in 2003 after the backlog was cleared.  The hostility – the hate – has since got worse in the succeeding thirteen years.  That hostility is now both addictive and compulsive.

The trainwreck of litigation involving Commander ‘Smith’ must have cost hundreds of thousands of dollars.  Since union dues come out of wages funded by the taxpayer, you and I get to pick up the tab at both ends.  And all this was in a case that could have been dealt with by two lawyers before the tribunal in a morning – and for a man who was not a member of the union when he committed the offences.  Instead we got the whole disaster – folders of documents, and trolleys to ferry them, and lengthy written submission and hours of expensive submissions and hearings.  About a dead man with his genitals in his mouth.  This must surely trump all previous triumphs of the IR Club.

So why was there all the fuss over the first case under the statute for years?  It was all part of the class war that I have described in a number of cases.  It was a repeat of what happened when I first started in 2003.  The men just refuse to accept the law.  I have little doubt that that is also the reason that I have been fired.  All that money was spent to bring pressure on the MFB to drop the statutory process and those spending the money and those supporting them elsewhere have got what they wanted.  It cost a fortune, but it was worth it.  You will recall that the express reason for all the delay and agitation was the suggestion that the case should have been dealt with by the Fair Work Commission.

If there are to be any sanctions, they will presumably come from the Fair Work Commission.  For the reasons I have given, that suggestion is worse than absurd.  It is, frankly, revolting.  If you ask who is running the MFB now, the answer appears to be a combination of the Chief of Staff of the Minister, the union, the Fair Work Commission, and a floating panel of about forty or so lawyers – in whatever configuration you choose.  Why not just abolish the office of the CEO and the Board – if it exists?  Well, I suppose that if the State of Victoria is now run by Ministerial aides and union representatives, we might be grateful that one of those offices is elective.  But what is incontrovertible is that backroom deals are poisonous in this set-up – what the MFB needs more than anything is a ruthlessly independent investigation into its darkest secrets conducted on a regular basis.

This men’s club, and the class war that drives it, are sad and corrosive throwbacks to the ‘50’s and the Split.  I have never seen a closed shop like it.  From time to time, I felt like I had been parachuted on to Mars.  I cannot tell you how relieved I was when Sharan Burrow said thatthis was the most poisonous industrial relationship she had seen’.  Count the CEO’s and CFO’s in my time against the African tenure of office on the other side of the war, and ask why the turnover is all on one side.

The class war is related to other failures.  I said that the MFB is an exclusive men’s club.  ‘Exclusive’ is hardly strong enough.  When I go from the bush to Melbourne I am struck, and happily so, by the number of people of Asian or African origin around me.  Not in the MFB.  Nor any Aboriginals.  I have not seen any of them.  God knows what would happen if a gay guy came out in there.  Men sleep together.

And then there is their attitude to women.  That is not just 1950’s.  It is antediluvian – or worse – I doubt whether even Noah was so hostile to women as these men are.  Psychiatrists or others will have their opinions on the views of these men on women.  You get tired of listening to tales of divorce and alcoholism.  They are traps for all of us.  A doctor gave evidence that men in emergency services are good haters.  Whatever the reason, there are far more women in combat roles as airforce pilots in the air forces of rigid if not backward Muslim nations like Pakistan and Saudi Arabia than there are in Melbourne’s Fire Brigade.  That is remarkable is it not?

I have been there only part-time for about 13 years, and for the last five or so I have hardly seen much because of a lock-out imposed from below, but I have seen enough face to face to feel the hate.  I have also been involved with organisations in the private sector making real progress on the position of women.  I have also raised two daughters and seen at first-hand the evil that this kind of closed mind and closed shop can produce.  The standing of women in the Melbourne Fire Brigade is a national disgrace in a publicly owned utility.

There is a simple reason for getting women up to say 50% of the MFB – apart from justice and decency.  That is that women will add some sense and reality to an outfit that has lost both, and, most importantly, women will help to get rid of that brutal blokey bullshit where the weasel word ‘mate’ denies all courtesy and decency.  If the current regime of the union can achieve parity for women in the MFB, even by opposing it, they will be well remembered.  It does look to me to be the last chance for sanity for this outfit.

One of the reasons for the intense devotion of these men to the class war and their hostility to women is that they have so much down time.  Anyone who has run a business knows that things get dirty when people do not have enough to do.  That is the case here.  How much time do they spend fighting fires or doing something useful?  The relaxed conditions of work then lead to second jobs and other engagements outside what should be their only work.

That, then, brings me to the Enterprise Bargain Agreements.  Whatever good they may have done elsewhere, they have been a disaster here.  You should get hold of one.  Five times longer than the Constitution and ten times as hard to follow.  The management time spent on these would support a battalion in Iraq.  The EBA’s have produced three evils.

All the benefits go one way, and the result is a form of manipulation, to use a polite word, to encourage a higher return to the firefighter – and a higher drain on the taxpayer.  Anyone in that outfit who suggested that they should try to contain outgoings would be branded as mad – or worse.

Then, the baroque sculpture of these edifices produces a total loss of initiative, and a kind of mindlessness and subservience to regulations that makes Orwell’s 1984 look as out of date as it is.  It is hard to think of anything that could be so demoralizing.  It is like a nanny state in Fantasyland driven from below.  This could not happen in the private sector – no business could afford it; it would just collapse.  I repeat – this could not happen outside the public sector.  But this outfit staggers on because the taxpayer is there for the plucking.

You get this nit-picking, bush-lawyering nonsense.  In a case as simple as that of Smith, you get referred to policies and guidelines and reams of material from the bureaucracy.  One of these items of red tape uses the word ‘appropriate.’  So, obviously, counsel asks the accused whether his employer gave him any instruction on what ‘appropriate’ might mean.  This is to a commander who has on his MFB computer images of a man with his genitals cut off and stuffed in his mouth and cartoons grossly offensive to followers of Islam.  I can recall being told one man had not been able to read an MFB policy because he had not been trained how to access the Internet.  You are now at the main entrance to Bedlam.  Somewhere between a racket, a riot, and a farce.  How do you, the one who is funding it, feel?

Finally, the EBA is the Trojan horse by which the management of the MFB gets handed over to the Chief of Staff of the Minister, the Fair Work Commission, and a busload of lawyers.  It was the means for blowing up the Smith case.  There are flow charts to show what so-called management has to do before it can do anything – such as charge someone under an act.  They are impossibly – laughably – convoluted.  They lead to a dispute.  Bonzer – off to the Fair Work Commission and the Chief of Staff and Spring Street.  And there goes an act of the Victorian Parliament.

What is the result?  You get trainwrecks like this case.  Or the commander who claimed and got paid $1300 for a shift that he did not do.  That is called theft.  But he turned up to the tribunal confident that the matter would be dealt with sensibly because he had once been a charging officer.  It was quite evident that this man had no idea of why his actions were wrong.  He seemed to think that he had done enough in the past to get let off for this.  The MFB had not sought dismissal, but after seeing him in the witness box, it accepted his resignation.  He still had not repaid the money.  The MFB had certainly not sued him for it.

Then there was the member who was charged with theft from the MFB.  The criminal case dragged on for years.  The accused was on leave – on full pay – for years.  YEARS.  When the Brigade finally got the nerve to invoke its own act of Parliament, the man’s counsel asked for an adjournment – because he had had not had time to get instructions!  There was nothing like a defence ever suggested, but the case went over two or three days.  I was told that the accused was too ‘stressed’ to attend.  I offered to go to him.  Then he was seen downstairs outside the court building, palely loitering with a mobile phone.

And that is before we get to the CFA whose members do it for nothing – and some of whom get killed.  God help us if a member of the MFB ever gets killed on duty – and God help those of us in the bush if the class war ever gets to infect the CFA.  There should be a close analysis of the rewards paid to firefighters compared to those paid to say schoolteachers or police and of the price paid and the qualifications needed by those on both sides.  Are firefighters better paid, less stressed, and less qualified than schoolteachers?  Do they work as hard?

People who are interested in this kind of folly should ask for copies of all of the decisions and memoranda of the statutory tribunal.  You may well be met with a tsunami of bullshit, bluster, obfuscation, special pleading, and personal abuse while panels of lawyers are consulted – at your expense.  Good luck.  I have had enough for the moment.  People in both bunkers have a lifeblood that can only thrive on conflict that murders thought.  It gets them all in the end.

I now understand what people mean when they say that economies like Greece, Italy, or Spain need ‘structural reform’ to get rid of closed shops that resemble medieval guilds.  It is not just the taxpayers who get clobbered in this class war.  You will not find many at HQ who do not look shell shocked – just look at the turnover.  I have spent time consoling victims.  And I fear that firefighters are being robbed of their own dignity or sense of worth.  That I think is a real shame.

And then we have to ask whether the most exclusive men’s club in Australia is now in truth run by the Marx Brothers.  The fact that the response of the MFB has been to seek to sweep everything under the rug merely shows how vital it is in the public interest that the enforcement of discipline in the MFB not be buried behind the closed doors of an IR Club closet.

For thirteen years a statutory tribunal inquired into the affairs of Melbourne’s Fire Brigade.  That tribunal gave reasoned decisions.  Those decisions show serious problems with morale and discipline in the MFB.  The MFB does not want people to read those decisions.  Why not?

People in Victoria may have at least three questions.  What problems of the MFB do those decisions reveal?  Why were not taxpayers told of these problems before?  What has been done to fix them?

When they get the answers to those questions, people in Victoria will be better placed to know why their statutory tribunal was strangled and then terminated.

And then they may get to what may be the ultimate question.  What is it about this outfit that makes these very average Australians so untouchable?  Why has neither political party been able to bring to this outfit either sanity or decency?

COPY LETTER TO MFB CEO

Dear Jim,

I don’t appear to have received a reply to my question of who is taking over.  You will recall that no reasons were given for the decision referred to – which some might think unusual.

I am going to write a memoir on my time at the MFB over and above those which you have already seen.  I am not sure whether to do it as an essay or a book.  One mode would be simply to refer people to the decisions of and memoranda from the Tribunal.

I set out below some of the issues on which I invite your comment.

  1. Why was the statutory process so little used?
  2. In particular, why has it only been used twice in the last five years?
  3. What has been the effect of the hostility between firefighters and management – between the union and the Brigade – on the use of the statutory procedure?
  4. Do you agree that the style and technique and tactics of industrial lawyers have been unsuitable for use in a statutory disciplinary tribunal?
  5. Do you agree that lawyers or advocates instructed on behalf of the firefighters by the union may be put in a position of conflict of interests – if, for example, the industrial objectives of the union may conflict with the forensic interests of the firefighter?
  6. How many firefighters have been dismissed since 2003?
  7. Do you know if any member of the Board contacted me to enquire how the statutory process was operating?
  8. Is it appropriate for a body like the MFB simply to discontinue a statutory process without referring to the maker of the statute?
  9. Was it appropriate for the government to intervene in the statutory process in the manner that it did in the final case?
  10. What if any part has the government played in the decision to discontinue the statutory process?
  11. What if any part has the union played in the decision to discontinue the statutory process?
  12. What if any part have the members of the union played in the decision to discontinue the statutory process?
  13. How many of the following are currently employed operationally by the Brigade: (a) women (b) people of Aboriginal Asian or African extraction or (c) homosexuals?
  14. What is the average pay of a commander employed by the MFB?
  15. What is the average pay of a secondary school teacher employed in a government school in Victoria?
  16. How would we compare the qualifications and responsibilities of a secondary school teacher with those of a Commander in the MFB?
  17. One of the cases heard by the statutory tribunal revealed alarming and systemic problems with absenteeism – what has been done to fix those problems?  Why was only one such case brought before the tribunal?
  18. In the last case, the tribunal asked a procedural question that a police prosecutor would have answered off-the-cuff – and correctly; counsel for the MFB asked for time and then to be excused; then six lawyers for the MFB left the courtroom.  Was this appropriate?
  19. In instructing lawyers to appear before the tribunal, did the MFB think to have one of its lawyers instruct a barrister directly – that is, assuming that he or she did not feel up to presenting the case on their own?
  20. What were the legal costs of the MFB in the last case?  What do you estimate to have been the costs of the accused in that case?  I am enquiring of the costs incurred in the tribunal, before the Fair Work Commission and in responding to government interventions or queries.
  21. How many fires on average does a firefighter fight each year?
  22. How much of the time of a firefighter is on average spent fighting fires?
  23. How much of the time of a firefighter is spent in active duty in responding to calls?
  24. For what part of the time of a firefighter on duty would it make any difference if the firefighter was a woman?
  25. What is the divorce or separation rate among firefighters?
  26. How much sick leave do firefighters take on average each year?
  27. How much management time is spent (a) in preparing EBA’s and (b) dealing with industrial issues?
  28. How much time does management spend on operational issues?
  29. How many firefighters have a second job or other employment apart from their employment with the MFB?

Best wishes

Geoffrey Gibson

Passing Bull 31  The Parallel Lines of Scalia and Cruz

 

Ultimately our ability to live together as a people depends on enough people behaving reasonably.  If enough people are unreasonable, we will fall apart.  Put differently, we have to be able to take enough people on faith or trust for our system to work.  People who abuse that faith or trust may bring us all undone.

The American political system appears to be falling apart for just that reason.  The vulgar bigotry of Donald Trump is just the apotheosis of the drift into unreason and a failure of trust.  Too many people reject the system, and too many players do not follow its rules.

We see American politics now as disfigured by the following flaws:

….a dogged pursuit of ideological assertions and an adherence to outmoded catch-cries (misplaced zeal); an inability to accept that another view may have equal weight or at least some merit (intolerance and over-confidence); a real and not just an apparent indifference to the suffering of others; a failure of governance; arrogance, and personal rudeness, in high office; and a determination not to be affected by what the rest of the world might think (provincialism).  These are the symptoms of the American malaise; what used to be called the Ugly American. 

I have put those words in italics for reasons I will give.

The Supreme Court of the U S is far, far more politicised than any similar court elsewhere in the western world.  It makes Australian and English lawyers very nervous.  One of its most political members was the late Antonin Scalia.  Extracts from a note I wrote on his judgment on guns in Heller follows this note.  You will see that the words I have quoted above about the malaise in American politics comes from that note.  A nation is in deep trouble when its judiciary suffers from the same disease as government.  Very deep trouble.

Apart from the evidence of Heller, there are two grounds for saying that Scalia was not just a political force on the court, but a party political force.

The first ground is the ghastly and unreasonable reaction to the nomination of his successor.  Nothing better shows the breakdown of trust and good faith in American politics.  And the hypocrisy – these people go to bed with the Constitution, and say that its terms must be honoured.  Unless those terms do not suit their aspirations on the political makeup of the Supreme Court.

The second ground comes from a gun-loving, ideological soul-mate of Justice Scalia – Senator Cruz.  Before the Justice was buried, this apostle of hate said:

We ought to make the 2016 election a referendum on the Supreme Court.  I cannot wait to stand on that delegate stage with Hillary Clinton or Bernie Sanders and talk about what the Supreme Court will look like depending on who wins…..I give you my word, if I’m elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings.

Cruz said the court was ‘out of control’.  It has after all allowed the US to enter the 20th century on health care and marriage.  But Scalia was

….an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights.  All liberty-loving Americans should be in mourning.

This bullshit is especially poisonous.  This man, who is more loathed by Republicans than Democrats, believes that the executive can and should control the judiciary – while praising a judge for his commitment to the constitutional separation of powers.  And he also thinks you can identify the extent to which a Supreme Court justice will ‘follow the law.’  The latter is just silly; the former is terrifying.

I am starting to wonder if ‘libertarian’ is code for fascist.  Liberty or freedom is invoked to warrant all kinds of insult to the brain.  Take Scalia’s reasoning in Heller, below.  It is as close to being demonstrably wrong as a constitutional decision could be.  If the right bear arms is warranted to enable citizens to use that right against a government they see as tyrannical, what better model could you have than John Wilkes Booth?  As he jumped to the stage after shooting the greatest man that the United States has produced, he said Sic semper tyrranis: so always with tyrants.  (It is in truth the motto of the State of Virginia.)  Why should the court invent a right the exercise of which is unlikely to be tested in court?  If an armed insurrection succeeds, the government falls; if it fails, the insurrectionists are likely to meet death one way or another.

One legacy of Scalia, and the likes of Cruz, will be the mourning of Americans for deaths in mass shootings that are now almost a daily event in America.  Scalia has gone to God with blood on his hands.

And people outside America mourn for that nation at large.

Poet of the month: Philip Larkin

Counting

Thinking in terms of one

Is easily done –

One room, one bed, one chair,

One person there,

Makes perfect sense; one set

Of wishes can be met,

One coffin filled.

But counting up to two

Is harder to do;

For one must be denied

Before it’s tried.

 

 

D C v Heller

In District of Columbia v Heller (26 June 2008) the Supreme Court ruled that the Second Amendment confers an individual right that is connected to a natural right of self-defence and is not limited to use for the militia.  Accordingly, since hand guns are ‘arms’ within the meaning of the amendment, they could not be banned by the District of Columbia, nor could they be required to be kept unloaded or disassembled or bound by a trigger lock, since such restrictions would unduly impede the right of self-defence of the owner.

Two things may be said immediately of the majority judgment.  First, it is one of those judgments that leaves you wondering how the contrary view may even have been put.  It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge.  If you did not know better, you might have suspected that its author entered upon the case with his mind made up.  The judgment has the shrill, combative tone of the high school debate.  Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly.  The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’.  In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it.  Some asides are just plain bitchy.  ‘Grotesque’ is deployed for effect in a one word sentence.  In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary).  This is five Justices describing the reasoning of the other four Justices.

It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court.  I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it. 

It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other.  More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers.  It is hard to think of any area of judicial law-framing that requires more care and dispassionate judgment.  A split decision five to four on such a political issue must erode public confidence in the working of the Constitution and government, especially when the majority says that the minority are behaving like the Mad Hatter. 

Judges forever underestimate how much ordinary people fear and distrust divided counsels.  They do not want to see egocentric prima donnas at the highest reach of government.  This is the reason for cabinet solidarity.  How would you sell a 5:4 decision to invade Iraq?  And there is a need for judicial solidarity.  When the US Bill of Rights was passed, and for 200 years after that, the ultimate appeal body for the British Empire forbad dissent – and everybody was better off.  A government seeking legal advice does not want as many opinions as there are lawyers to give one.  A rancorous ideological divide at the highest court in the land on an issue like gun control constitutes a very serious error of judgment on the part of the Court.  This was a bad failure of governance.

Well, some may defend the Court on the footing that this is, after all, America, and they do things differently over there.  Quite so.  If any citizen can carry a revolver down Pennsylvania Avenue, the Justices of the Supreme Court should at least be allowed to be rude to each other in public up at One First Street.  This is public life at the frontier of courtesy.  (When, during the war, a dissenting Law Lord made a reference to the looking glass that his chief, the Lord Chancellor, had been unable to restrain, one of the targets of the barb took the unprecedented of delivering the reproof in a letter to The Times.)

People outside America will be as interested in the facts acted on by the Court as much as anything else.  The hand gun is ‘overwhelmingly chosen by American society’ for the purpose of self-defence.  It is by far ‘the most popular weapon’.  It is ‘the quintessential defence weapon’.  (Why should not Smith & Wesson endorse semi-automatic pistols with these blessings from on high?  It as if the United States were one huge Dodge City.)  During the argument, the Chief Justice and Justice Scalia wanted to know how long it would take to lift the lock off the trigger?  Three seconds was the reply.  Their honours discussed how you might react if you wake up, turn on the bed lamp and put on your glasses, then have to unlock your gun.  (Laughter in court.)  It is as if high members of government in Washington do not sleep easy in their own beds unless they go to bed with their trusty revolver in an unlocked condition, and God help any legislature that makes any law that makes them slower on the draw. 

Their Honours discussed why the revolver might be so popular.  One explanation ventured was that ‘it can be pointed at a burglar while the other hand dials the police’.  This discussion is taking place in the course of a written judgment – in the highest Court in a nation that sees itself at the forefront of western civilisation.  What do you use your preferred hand for – the phone or the gun?  If the burglar is recalcitrant as well as unlawful, what part of the body do you aim at?  Can you shoot to kill someone who never wanted to do that to you, or with your untested marksmanship would it not matter?  Will you still be a hero if the intruder is unarmed, retarded, and dead?  And if the ultimate purpose of the gun is to kill human beings, what about the preacher who said you should turn the other cheek?

Various police bodies put in briefs that chill the blood.  The automatic pistol is the weapon most used in violent hand gun incidents.  You can now buy, for example, a Romanian AK pistol with two high capacity mags for $429.  These things can spit death out at a phenomenal rate.  Who needs two mags, apart from serial killers?

‘Pink Pistols’ put in a brief saying that gay people particularly needed the weapons because they are more prone to violence, particularly at home.  But the most frightening document of the lot was that put in by a body which styles itself as ‘The Association of American Physicians and Surgeons’.  Their first argument is that ‘the primary use of guns is defensive, having a beneficial effect’.  Then –

Without the right to bear arms, an emasculated citizenry becomes vulnerable to tyranny, terrorism and genocide.

Nowhere else on earth could you find soi disant doctors willing to voice such venomous nonsense.  Did these doctors – if that is what they are – consult the American Indian about the link between the use of the gun and genocide?  Would they, if the bribe were good enough, go into bat for those other misbegotten merchants of death, the tobacco companies?

The Court had to deal with a previous decision that the Second Amendment applied only to weapons used by the militia.  This, the Court said, meant that the Amendment did not protect weapons not typically possessed by law-abiding citizens for lawful purposes – such as short-barrelled shotguns.  They referred to Blackstone (4 Commentaries, 148-9) saying that ‘dangerous and unusual weapons’ were prohibited (by, among others, Solon of Athens, who forbade Athenians walking around their city in armour).  The Court did not refer to the statement of Sir William Holdsworth, the leading authority on the history of English law, that the Tudors had prohibited the carrying ‘of certain kinds of arms – such as pistols and handguns’.  On that basis, the English Bill of Rights would never have applied to hand-guns.  (This is not surprising, since their military use has traditionally been confined to infantry officers, or officers of the other services.)  It is unlikely that an American court would now feel the need to rule on the constitutional validity of royal proclamations in light of the Statute of Proclamations (31 Henry VIII c 8), which was passed because of the proclivity of that king to legislate by proclamation, as when he proclaimed Luther as a heretic, but if you want to moor in the backwater, you may have to get your feet wet.

And since no gun has been invented that is not ‘dangerous’, it becomes impossible to accommodate the decision of the Court with the law stated by Blackstone and which was applied in the American colonies.  In any event, legislators and trial judges will have a dreadful time trying to apply these guidelines, and with almost no hope of getting a law as simple as that of Solon or the Tudors.  Why not start with a simple ambit claim?  ‘It is an offence to own, purchase, carry, or possess any gun that is either dangerous or unusual’.  The precedent is unimpeachable.  Your next gambit would be to ban guns not used by your militia, and then limit the guns available to them, but on any view the $429 Romanian AK pistol would be off the table.  Surely.

Blackstone believed that the right to bear arms could only be invoked to the point of using the arms if government had failed.  The reasoning of the Court must allow that Americans mistrust their government and each other to the extent that the Second Amendment must be read so as to allow people to keep and carry hand guns to protect them against their neighbour or their government ‘in case of confrontation’. 

But why do the Americans fear their neighbours?  Because their neighbour might be armed with a gun.  And how is this so?  Because the law does not properly regulate the use of hand guns.  And why is this so?  Because of this interpretation of a badly written and outmoded law.  I have to carry a gun because you might be carrying one.  The Americans have therefore delivered an answer to the prayers of gun-makers and coffin-makers and have given judicial endorsement to the constitutional possibility of perpetual gunfire.

The decision of the majority covers 64 pages.  Is it not remarkable that a simple and unassailable truth takes so long to expound?  This decision is about nine times longer – nine times – than that of the Supreme Court in Brown v School Board of Education, a unanimous decision of the Court that helped the American people move forward and added immeasurably to the standing of the US in the world.  (It is about one hundred times longer than the decision on slavery of Lord Mansfield in Sommersett.)

The Court in Heller was put expressly on notice of the problems of gun control, namely that guns are used to kill people and that outlawing a prohibition of them would lead to more killing.  Here is how the Court washed its hands of the deaths of Americans that would inevitably follow its judgment:

‘We are aware of the problem of hand gun violence in this country… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’

What an appallingly heartless slap in the face to all of those Americans who have lost family or who have been maimed because their government cannot properly control the use of hand guns, the weapon of choice, the Court tells us, of the overwhelming majority of Americans.  Well, the question that Pontius Pilate asked of the prisoner before him was, ‘What is truth?’ and some say that he was jesting as he left the hall of judgment.

The decision of the US Supreme Court in Heller therefore exhibits the following characteristics: a dogged pursuit of ideological assertions and an adherence to outmoded catch-cries (misplaced zeal); an inability to accept that another view may have equal weight or at least some merit (intolerance and over-confidence); a real and not just an apparent indifference to the suffering of others; a failure of governance; arrogance, and personal rudeness, in high office; and a determination not to be affected by what the rest of the world might think (provincialism).  These are the symptoms of the American malaise; what used to be called the Ugly American.

For most people outside of America, that ugliness in respect of gun control – and the image is very, very ugly – was best shown in the image of a B grade actor giving his version of a fascist salute while holding a gun – as it happens a rifle – and vowing to die rather than surrender it, and then getting the Nuremburg style standing ovation that you would expect from a mob of like-minded lightweights.  And for the rest of the world, that is just one step above the Klan. 

We need to see this decision in the overall context set out above.  More than eight hundred years ago the law made provision for people to be armed because there was no army or police.  Before that public duty became a right, the English began making laws to control the use of weapons, including hand guns.  The Bill of Rights made limited rights as allowed by law (including the control of hand guns) and it did so in the immediate context of controlling a standing army.  The US followed the English model by expressly referring to a ‘well regulated militia’ and ‘the security of a free state’, so as to make it plain that they followed the English model.  None of those rights was anything like a universal right, and whatever else the English model extended to, it did not extend to hand guns. 

Yet more than two hundred years after the US model was created, and both England and the rest of the world had moved on into safer realms, the United States Supreme Court rules that the right is an individual right such that the use of a hand gun at home for self defence so that a law that requires the owner to keep it locked is unconstitutional.

The Court did not look at this 800 years history of the law – characteristically it focused on American history – but had it done so, it may have reached a different result.  Oliver Wendell Holmes famously said:

‘The rational study of law is still to a large extent the study of history… When you get the dragon out of his cave … you can count his teeth and claws, and see just what is his strength.  But to get him out is only the first step.  The next is either to kill him or make him a useful animal…  It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.  It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.  ‘

The Court accepted that times had changed but did not see it as its role, as Justice Holmes would surely have done, to take the dragon out of the cave and kill it, or at least make it a useful animal.  No one is under any illusion – this dragon breathes fire and kills Americans.  Thousands upon thousands every year; more than Osama bin Laden could ever dream of killing.

The Court referred to the risk of tyranny, presumably some form of oppression practised by a government that began lawfully.  (After all, even a majority can be tyrannical.)  The revolts against the English Crown in 1215, 1688 and 1776 were all resolved at the point of the sword or the end of a gun, although only the third needed a war.  King John did not have the soldiers.  James II did not have the numbers.  George III found out what the Americans found out in Vietnam and Iraq – it is very hard to sustain an occupation in a faraway land where the home side has the high moral ground.  If you skip the claptrap, the first and third revolts were about money, and the second was about religion.

That brings us back to the enforcement issue.  A right to bear arms is not a right to use them but, passive deterrence aside, there is not much point in having a right to bear arms if you will not have a right to use them.  Americans must presumably use their own judgment of their common law rights when in the home they draw their preferred weapon on an intruder.  But when are you allowed to draw your gun on your government?

In using arms against the state, success is its own vindication; failure means death.  As one American rebel remarked, they ‘would have to hang together or be hanged separately’.  Any alleged right to use arms against a government will not be justiciable until the issue of arms has been determined by arms.  The American colonists rebelled against the English Crown over taxation, and those who would have been hanged as terrorists are national heroes.  The continued vitality of the Second Amendment means that the government of the United States is on permanent notice that the people of the United States reserve the right to respond to ‘tyranny’ on the part of their government by the use of the gun.  That may, I suppose, be ultimately the case everywhere.  It is what Plumb called ‘the implicit right of rebellion’.  But nowhere else will you find it celebrated as a constitutional right.  Only in America do you get that.  But even in America, no government would say to its citizens, ‘If you don’t like my taxes, take up your arms and march’.

If then the Second Amendment ‘codified a right inherited from the British’ as the Court accepted, it was a right that precluded the Crown from frustrating the implied right of rebellion by purporting to disarm the citizenry as the Stuarts had sought to do.  This was nothing like a right to use hand guns for defence against killers at home.  In any event, the Tudors had commenced the process of regulating hand guns some time back in history.  The position in America now appears to be that because of the way America has received its inheritance from the British, it cannot now legislate to control guns in the way that the English started to do more than four hundred years ago.  If that result is juristically valid according to the laws of the United States, it is, if I may say so, grotesque.

We are, after all, looking at a colonial throw-back.  It is very common for the law and customs of the mother country to become frozen in the colonies of the diaspora.  The incomparable Sir Lewis Namier said that the US is ‘in certain ways, a refrigerator in which British ideas and institutions are preferred long after they have been forgotten in this country’.  To stay within the metaphor, the decision of the Court in Heller was nothing if not cold; and it is hard to say that you have won independence from the mother country when you bar yourself in behind its archaic laws.

The majority of the Court in Heller saw fit to refer to Through the Looking Glass in dismissing the reasoning of the minority.  This is an adult fairy tale that has a passage lawyers love to quote when there are disputes about the meaning of words – which is just about all that lawyers argue about.  It is very apposite to the present case.

‘But “glory” does not mean “a nice knock-down argument”, Alice objected.  ‘When I use a word’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.

‘The question is’ said Alice, ‘whether you can make words mean different things’.

‘The question is’ said Humpty Dumpty, ‘which is to be the master – that’s all’.

And everybody knows what happened to Humpty Dumpty. 

The Supreme Court could have avoided this decision on handguns.  The ‘right’ was never universal.  It related to the militia which has nothing to do with handguns or personal self-defence.  The English had already taken handguns off the table.  But some policy demon drove the Court backwards.  This failure of the Supreme Court to slay or tame the dragon in the cave was not just a failure of legal scholarship and judicial technique – it was a failure of moral courage and intellectual leadership. 

The haughty arrogance of lawyers Part II How the Essendon players were dudded

 

Apology

I am very sorry that this note is so long, more than 16,000 words or forty pages, but this is a very big mess.  I am not so much concerned with what the players did, as with what others have done to them.  For the most part, I deal with the process rather than the issues themselves.  I have tried to avoid or to explain legal terms.  I have referred to one reported case and to the writings of two jurists (that are part of my legal fabric). I would ask people, and especially lawyers, to think about the issues.  After looking hard at this case over some days, I have come to a clear and settled view, grounded in long experience, that something very bad has happened here, and that the players have been very badly wronged.

Ray Groom is lawyer who was a first class AFL player.  He is a member of the tribunal that hears appeals from the relevant anti-doping body.  He was Premier of Tasmania.  He is uniquely placed to assess these issues.  I have seen a memorandum from him expressing similar views on some of these points but in shorter, simpler, and more magisterial terms.

Nevertheless, I commend my own note to your earnest attention.

1 The law (the Code) is bad – innocent but guilty

Under our law, you do not commit a crime simply by performing some act.  If my fist connects with your head, I have not committed the crime of assault if it happened by accident.  The law requires a guilty mind before my act makes me liable to be found guilty of and punished for committing a crime.  It would be monstrous if my accidental punching of someone led to their death and I was found guilty of murder.

That is the general position at our common law.  You can get an argument about whether that was the case a thousand years ago, but our parliaments have created more and more exceptions in areas like workplace safety or environmental protection.  For policy reasons that seemed to be good at the time, these offences, which are called offences of strict liability, can lead to your being found liable just for your action or inaction – and regardless of your state of mind.  You can therefore be found guilty of committing a crime without having a guilty mind.  You can, if you like, be an innocent criminal, because you can be found to be guilty of a crime even though your mind was innocent.

Such a result is not just anomalous – it is very dangerous and potentially very wounding.  It is one thing to allow guilty innocence or innocent guilt in some welfare or environmental cases where ordinarily the targets are large, wealthy, and inviting corporations.  It is altogether a different thing to do this where the reputation and livelihood of the working man are on the line.  Such a course of law is very wrong.

Thirty-four players of the Essendon football club are being called cheats.  They are being called cheats on a finding made under a law that does not require proof of dishonesty or any other form of criminal intent.  This is the fatal vice of the law of this Code.  People who ask why the players insist on proclaiming their innocence simply do not understand that no one has ever made a finding of dishonesty against them.  They have been left by their betters on a conveyor belt that will lead to their unjustified harm unless they can find a way to get off it.

The Panel said there are two kinds of anti-doping rule violations.  One is the presence of a prohibited substance in an athlete’s sample.  That was not alleged here.  The other is the strict liability model.  That was invoked here, and it specifically says that the prosecution does not have to prove intent or fault.

It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body.  Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation for Use of  a Prohibited Substance or Prohibited Method……The success or failure of the Use or attempted Use of a Prohibited Substance or Prohibited Method is not material.  It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping violation to be committed.

So, here we have a rule or a law that specifically rules out what has been the basic principle of our relevant common law for a millennium.  There does not have to be a guilty mind.  The mind might be innocent or just blank.  The law then goes on to say that it does not matter if the criminal derived no benefit from the breach.  (You might imagine a stern ruler or a totalitarian state saying that that is the law on the question of guilt or innocence; you would know that you are in cloud cuckoo land if it has no effect on the penalty.  Yet that, we are told, is the case here.)

Since this innocent but guilty law is at the heart of this controversy, let me set out at some length some observations made by the great American jurist Oliver Wendell Holmes in the first chapter his work The Common Law.

It is commonly known that the early forms of legal procedure were grounded in vengeance… 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…..

My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge.  In the sphere of contract the fact will hardly be material outside the cases which have been stated in this Lecture.  But in the criminal law and the law of torts [civil wrongs] it is of the first importance.  It shows that they have started from a moral basis, from the thought that someone was to blame.

Thus the punishment must be equal, in the sense of proportion 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 wrong-doing…..

The degree of civilisation which a people has reached, no doubt, is marked by their anxiety to do as they would be done by.…

It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness.  Such a denial would shock the moral sense of any civilised community; or, to put it another way, 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.

Criminal law, and a large extent the civil law, looks for someone, in the words of Justice Holmes, to blame.  Who should be blamed for what happened at Essendon?

Since this point is fundamental, and it has not been made by any press commentary that I have seen, I may repeat it.  These players are being called cheats on the basis of a finding by a tribunal that did not call for a finding of dishonesty.  In a civilised nation with rational laws that would be enough to end this discussion.

Now, I am not an expert in this part of our law.  You will see that I have a lot of trouble following it.  I infer that the scheme is that WADA (the World Anti-Doping Authority) says that you can trust us to identify those substances that we can properly impose a blanket ban on.  We will be the judge and jury on the question of what types of substance may give athletes an advantage over others such that ordinary people would consider that their conduct was dishonest – that is, they would think that an athlete using such a substance was a cheat.  And you can trust us that it is reasonable to have a blanket ban that does not require us to show an intent to cheat.  And then you can trust us to provide the means by which the proved presence of that prohibited substance can be made the basis of an offence irrespective of the intent of the player or the effect of the substance.

That is three big chunks of trust in WADA.  Are they worth it?  I will come back to that.  But, at least as presently advised, two things look clear to me about the proceedings before the Panel.  First, there was no allegation, and therefore no finding, that the players intended to breach the rules or gain any unfair advantage.  Secondly, there was no allegation, and therefore no finding, that any player did obtain an unfair advantage.

If I am right about that, and this point is fundamental, the Panel finding, even if it were admissible in court, does not in my view warrant a finding that any player cheated.  But those propositions do lead to the conclusion that this whole process and its results have been manifestly unjust to the players.

You can see why regulators may want to impose strict liability in some areas of sports business.  We are coming to terms with the fact that betting leads to match fixing.  That has now reached Wimbledon.  The regulators might wish to make a law saying that a player is guilty no matter what his state of mind is if his phone records reveal contact with a bookie.  You are strictly liable for what happens on your phone and you cannot even talk to a bookie.  They might say that you can have red tomatoes but not green tomatoes, and that if they find green ones in you, or if it is proved that you have taken them, then you are strictly liable no matter how careful or innocent you were in your choice of food.

These are all serious policy issues in a business that is going under on dope and betting.  That leaves at least three questions.  Who decides these policy issues, and who formulates the law?  If the strict liability model is adopted, what safeguards to prevent injustice do you build in to allow for exoneration or amelioration as a defence, and also on penalty whether or not the defence is made out?  And, who decides whether the law has been infringed, and what the sanction should be?

One object of this note is to show that AFL players generally have been handed the three worst possible answers to those questions.

2 The second flaw in the Code – the grounds of exemption  

So, the first point I seek to make is that the Code is viciously bad for the players because it imposes strict liability in an area of conduct that should require a positive finding of guilt.  As a result, they are being accused of doing something wrong under a finding under a Code that does not require proof of wrongdoing.  Imagine suggesting to one of our cabinet ministers or bank directors that they could be rubbed out for a year just for doing a prohibited act even though their mind was quite innocent.  Put differently, how would you like to live in a regime where you had to prove your innocence?

The next problem follows on from that, which as we will see happens all the time.  If you are going to have blanket guilt, irrespective of individual fault, you will need to have some sensible and workable exemptions.  You see this all the time in tax laws and corporate governance and anti-trust laws.  The government stamps its foot, and makes a blanket law; that law is very unfair, until a body of jurisprudence develops around the exemptions.  Then some wealthy and cleverly advised people find ways to exploit the exemptions; the government stamps its foot again, and says that these ‘loopholes’ are being exploited and must be closed, and then sends in the steam roller to crush a couple of walnuts, and the whole cycle starts again.

The first problems with the exemptions here is that they only go to the consequences of a finding of guilt and they do not go to the finding of guilt itself.  In other words, you are stuck with being found guilty, but you can just try your luck to get a lesser penalty.  You might on a good day keep your ticket, but your record has gone for life.  Now, you might want to do this to a polluting company, or a bank laundering money for terrorists, but not for someone trying to make a living.  If you want it in political colour, you might do it to a BHP, Telstra, Mr Murdoch, or a bank, but not to a working man.

3 Fixed penalties are obviously wrong here

You might have a fixed scale of penalties for speeding offences or parking tickets, or for, say, rough or dangerous tackles in football, but not where you are cancelling someone’s meal ticket.

Fixed penalties are provided because the lawmakers do not trust their tribunals.  They fear that their chosen agents will be too soft or too dumb.  The whole function of fixed penalties is to take away any discretion or judgement from the tribunal when it comes to penalty.  You see this with some governments imposing mandatory imprisonment for third offences, and we know the trouble that this can give in administering justice among the indigenous peoples.

Because those who formed this Code did not trust the people who would sit on their tribunals to administer it, the players in this case have been exposed to the injustice of a scatter-gun, in circumstances where it is utterly inappropriate that they should be so exposed.

There is another problem with the fixed penalties.  You will recall that the Code says that for the purpose of establishing liability, it does not matter if the substance does not work or lead to an unfair advantage.  Two players at the one club take the same prohibited substance from the same crook.  They are both detected and found liable.  For one it worked like a charm and he went from zero to hero and won a Brownlow.  It did not work for the other.  He got cancer and left a widow and five children.  The same penalty?

4 The penalties are demonstrably unjust

As Justice Holmes observed ‘even a dog distinguishes between being stumbled over and being kicked’.  If some of the players were to be found liable under the Code, there would obviously be a huge difference in the range of personal culpability and there would therefore be a huge difference in the range of penalties to be imposed to mirror or reflect the different kinds of culpability or guilt.

A 20-year-old will be in a very different position to a 40-year-old player.  Someone who has played a few games will be in a very different position to one who has played 400 games.  Someone with scientific training or a tertiary degree will be different to someone who got thrown out of school very young, or someone who is a brick shy of a full load.  We are talking about footballers and not professional people in the usual sense of that term.

The reasoning of the Panel does not descend to the educational accomplishments and knowledge of the world of any of these young men.  But we know that some players did make enquiries and that some did not.  All presumably wondered how anything could be wrong when the whole regime was subject to scrutiny by the club doctor, and they had a written assurance from their employer that WADA was OK with it all.

So, the range of penalties should be great – from a slap to a belting.  What happens if one of the group has form?  Does his penalty get upped, or do they all just get the same whack anyway?

But, no, the Code strips the players of their right to be judged as individuals.  The word for this is barbarism.  This is one of the main reasons why the conduct of the AFL fixing its players with this denial of basic human rights will call for scrutiny by a court.  If a lawyer or agent advised a player to sign up to this Code one-on-one, they would be having a very short and very embarrassed confession session with their PI insurer.

Before the Panel, the AFL may have felt some embarrassment on this.  The AFL submitted to the Panel that if it were to uphold the appeal it should note ‘there is no suggestion that any Player intended to use a prohibited substance’ and that ‘if the Panel finds that any Player did use a prohibited substance, it was because he was the unwilling and unwitting victim of the gross negligence of others.’  They might also mentioned that there was a gross breach of trust committed against the players for which the term ‘errant fiduciaries’ would be far, far too light.

There is another equally comprehensive objection to this penalty scheme of the Code in this case.  I have a very clear view that if left at large on penalty on a finding of liability against these players, most Australian judges or magistrates, and almost certainly any Australian jury, would take the simple and obvious position that these poor bastards have already suffered enough, and that all those who had been chasing after them for so long had learned enough from their own frightful mistakes, and that it was time to stop damaging the very source of the players’ business, and let everyone get on with their lives.  That is the course which common sense and ordinary humanity and decency cries out for in this case.  It was also the course that the Australian nation, except for the paid assassins in the press, called out for.

There may, I suppose, be some argument about that, but I find it very hard to envisage a worse result for football or for professional sport in Australia than that which has been arrived at by this Panel.  The other footy codes must be doing handsprings.

5 The breach of the double jeopardy rule was unjustifiable

This objection also follows on from the last.  Because of the way that ASADA (the Australian Anti-Doping body) presented its case before the original tribunal, it lost.  As I follow it – and I may be wrong because I have not seen the original decision – ASADA had therefore proceeded in such a way that that tribunal did not have to consider the culpability of the players – with results that I will come to.

The Panel said that before it, ASADA adopted the submissions of WADA.  It changed its case by doing that.  When ASADA fought its own case it lost; when it fell in behind WADA, it won.  It changed its case in light of its failure the first time round.  It looks like ASADA was just inept.  Whatever epithet you choose to apply to the failure of ASADA, you will not find one that is complimentary – more importantly, all of these players have had to suffer because of the failings of this Australian regulator.  That proposition seems to me to be indisputable.  It must weigh heavily on the question of penalty.  It did not.  That and the issue of delay were two other issues that the players went down on.

Just as badly, because of the failure of ASADA before the original tribunal, that tribunal did not, as I follow it, have to go into the question of the culpability of individual players. If I am right about that, the new foreign tribunal was deprived of the opinion of people who had knowledge of the relevant conditions of employment and the relevant Australian law.  This is just another ugly morsel in an ugly dog’s breakfast.

People in business should not underestimate just how threatening this departure from the double jeopardy rule is.  Most people in business have had to confront brutish regulators who seem determined to pursue a course against people who regard themselves as ordinary citizens in a way that lacks any relation to common sense and decency.  If you fight them, and win, fair and square, you do not expect to have to do it again – a year or so later, against a new prosecutor, a new case, and before an imported bench that brings its own laws, and which does not have the knowledge or experience of the first tribunal.  It just stinks.

It is I suppose at least consistent that ASADA was seen positively to glow when they learned that their imported superiors had extricated them from their own squalid mess. ASADA would finish as it started – dumb and ugly.

6 The findings of the Panel on culpability do not accord with the facts of life

This flaw is obviously connected with the previous flaw, because the blundering of ASADA denied the new Panel the benefit of local knowledge on this issue.  The Panel decision is written by lawyers for lawyers.  The decision must look at best unworldly to many ordinary people, and it is I think a great shame that these lawyers did not address the people that they were putting down in terms that they could understand.

This is also just another case where the Code is a disastrous mine-field for the players.  Their name and future is on the line, but once the tribunal finds as a brute fact use of a prohibited product, the onus is on the accused to exculpate themselves.  They must suffer the prescribed penalty unless, relevantly:

If a Player….establishes an individual case that he….bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced….

Do you see what WADA have done to our players?  The coppers do not have to show any fault, but to get fair treatment, the players, the accused, have to prove that they acted without significant fault.  Can you imagine a more vicious rule for the players?

For people reading this who are not lawyers, you should know that this kind of provision might fairly be called anathema to people who are.  It must revolt any fair minded common lawyer.  I had to deal with reverse onus laws in a tax tribunal for eighteen years.  Governments, like sports administrators, like to look after their own interests and for that purpose they are prepared to make, and commonly get away with, outrageous laws like these.  I was always very uncomfortable and from time to time I would publish my disquiet in reported decisions.  I can recall on one occasion saying that I now understood how the Stamp Act had cost George III the American colonies.  There is not one word from this Panel about the sheer rigour of this law.  They stay loyal and faithful to their Code to the bitter end.

Let us just look at two complaints of the Panel against these players.  The players made false statements and they did not make enough enquiries.  They signed forms and said things in those forms that they should not have said.

Is the Panel aware that about nine out of ten Australians sign tax returns in reliance on their advisers and that whether or not they have advisers, they will almost certainly have no understanding of most of the contents of the forms?  What point is there in my reading a form I do not understand? I have had to sign US tax forms for overseas transactions.  The forms were horrendous and utterly incomprehensible.  But my bank here just told me what boxes to tick, because otherwise they, the bank, could not handle the transaction at all, even though it may as well as been written in Mandarin.  It is my way or the highway sport – stop being a neurotic fop.

I also ticked a box that said I would tell Uncle Sam if there was any change in my material circumstances.  Now, I suppose that if the refuse hits the regenerator, I may be in a little trouble as a lawyer – but should footballers lose their livelihood because they have been loose in forms?

Our laws are notoriously difficult and the regulations and red tape are notoriously difficult and heavy.  But, it is one thing for bureaucrats to make all these laws and make life impossible for ordinary people; it is another thing for people to be penalized in their livelihood and reputation if they get their forms wrong.

Very many Australians have their own superannuation funds.  The Panel is probably not aware of this.  Most Australians who have these funds will have accountants who use software that generates a small pile of documents each year, about six months after the event, that have to be signed in about 20 different places.  Most taxpayers will just sign up – like I do – and because the revenue is involved, the relevant policing is done by the Australian Taxation Office.

If you stop to read these documents, which I would think most people would not, you might find something that might be either hilarious or embarrassing depending on your mood – you might, for example, find that one of the twenty or so documents you have signed says that you called a meeting of yourself and appointed yourself chairman of the meeting and then passed a resolution.  That of course just did not happen, and the statement is false.  On a bad day, someone might charge you with trying to obtain financial gain by deception.  That is theft, and slammer territory.

That is just one example of why these laws, and our laws at large, have to be administered by people who have common sense, knowledge of what goes on in this our world, and a full understanding of the proposition that there but for the grace of God go I.

It is a fact of life, is it not, that we are surrounded by things that we do not fully understand or cannot verify, and that we have to take on trust – like the state of our bank balance, our demerit points for driving, our superannuation entitlements, our rights at work, and so on.  It strikes me as very sad and unreal that these young men are being held accountable because they trusted their employer – and their employer disastrously betrayed that trust.

Some of the comments of the Panel are so puerile that you wonder whether they know anything about the real world at all.  Some of them look like rote particulars of negligence in a third rate running down case before the justices at Broadmeadows – ‘The Players have all received education in anti-doping’, ‘No Player appears to have made use of the WADA hotline,’ and ‘No Player appears to have conducted internet searches for Thymosin or to have made any other inquiry as to its elements or properties.’

In the name of heaven, how many people ring up the wallopers to ask them a legal question?  What kind of answer would they expect?  What if the players had the same view about WADA that most Australians do?  And what do the doctors who look after these learned lawyers say about the sense of lay people consulting the internet about drug use?  How would the AMA react to the suggestion that foreign lawyers are telling Australians how to deal with their doctors?

These errors show how wrong it is to ask outsiders to assess conduct by reference to standards that they neither know nor understand.

It may be instructive to compare the duty that the Panel imposed on these young men to make enquiries of their employer with the duty that the parliaments of this country put upon the directors of public companies like the big banks, BHP, or Telstra.  Under what is called the ‘business judgment rule’, directors are not liable for a business judgment if they make the judgment in good faith for a proper purpose, if they do not have a material personal interest in the subject matter of the judgment, and if they ‘inform themselves about the subject matter of the judgment to the extent they reasonably believed to be appropriate’, and they reasonably believed that the judgment is in the best interests of the corporation.

These company directors are excused if they informed themselves about the subject matter of the judgment ‘to the extent they reasonably believed to be appropriate’.  That, I infer, is what the relevant players did at Essendon in this case.  If that is so, this Code and this Panel have imposed on these footballers at Essendon duties in their affairs that are more onerous than the duties imposed by our parliaments on the directors of BHP, Telstra, and the banks.  That result, if it follows, would be hilarious if it were not so tragic.

To go back to this case and what lawyers call the ‘merits’.  Is it the fact that these guys would have walked away unless these three lawyers had found these footballers told porkies to the wallopers?  And for that they lose a year’s work?  If so, the average Australian would say ‘Tell ‘im ‘e’s dreamin’.’  And none of the Panel would understand that.

Now, these are all matters of degree.  People will have different views on how far these players should have trusted their employer back in 2012 before this sordid little mess became a national cause célèbre.  I know some people who are very keen to scold the players.  That is a matter for them.  They may care to reflect on the advice that the narrator in The Great Gatsby says that he got from his father at the very start of that book.

Whenever you feel like criticising anyone, just remember that all the people in this world haven’t had the advantages that you’ve had.

You can conduct your own experiments about this.  Are those who condemn the players more likely to come from the jet set – like the CAS crowd – than those who incline to be more understanding?

7 Aren’t they guilty anyway?

This is a furphy, and a bad one.  When you look at how these young men have been worked over, this point is as important as the problem of being found guilty while you are innocent, or being innocent but guilty.

Our legal system is not concerned with absolute truth.  We leave that to God, the Fourth Estate, and to invincible gossips – and there is a lot of overlay in the three categories.  We only say that someone is guilty when that decision has been made after due process.  The need for due process is so much clearer when a finding of dishonesty is made that reflects on a person’s reputation and livelihood.  For the reasons I have endeavoured to spell out, I do not believe that due process was accorded here.

The people at the pub, or over the back fence, or vindictive journalists or regulators, can pontificate as much as they like.  Under our legal system, we are presumed to be innocent until a finding is made against us of guilt with due process of law.  Since I do not believe that has happened here, the Essendon players remain in my eyes innocent.

This proposition may conceivably be tested in court.  If, say, a newspaper alleged that these men were cheats, and the players challenged that allegation in court, the publishers would want to consult some very good lawyers and experts before determining to resist that challenge on the ground that the allegation is true, that is, on the ground that they will contend in court that the players are cheats – where the onus of proof is squarely on the publisher, and where the consequences of failing in that plea are in the Hiroshima category.

In short, the findings of the Panel on personal culpability look to me to be the soulless constructions of eminent black letter lawyers rather than the findings of sensible people of the world.  It really does look like bullshit to me.  They have failed to learn the facts of life Down Under.

8 The problem with the standard of proof

In the previous note, I referred to the difference in the standard of proof in civil cases (the balance of probabilities) and in criminal cases (beyond reasonable doubt).  Both of those tests are well understood by lawyers and juries, and the lawyers and judges are firmly discouraged from flirting with the wording or trying to prepare a gloss.  But in some civil cases, the consequences of an adverse finding may be so serious that the law imposes an intermediate level of proof which is somewhere between 50/50 and beyond reasonable doubt.

This law has always caused me problems on tribunals.  No one has been able to explain it to me satisfactorily.  All I do, I think, is try to ensure that in such cases that any finding I make which may, say, cost someone their job, is one that I can sleep with as not being unfair to a person who enjoys the presumption of innocence.

There is no science or formula in that – you just have to make a decision and be able to live with it.  I referred to the comment of Chief Justice Latham about needing more evidence to convict for murder than to hand out a parking ticket.  I suspect that my approach is similar to that which the Panel invoked, but in light of their actual decision, I cannot be sure.

The name of the Court of Arbitration for Sport (CAS) is a characteristically arrogant misnomer.  Arbitrators are not judges, and their tribunals are not courts.  The whole bloody point of arbitration is to get away from courts and strict procedures, and to operate in confidence behind closed doors.  One of our great constitutional cases saw the High Court slap down industrial arbitrators getting ideas above their station and acting like judges or courts.  Two of the Panel would not know that, and the third may have forgotten it, but this little grab for power and respectability by this foreign outfit says a lot about its sponsors and champions.  The CAS is not within a bull’s roar of a court, and those who sit on it know it.  Or they bloody well ought to.

The CAS panels have nevertheless evolved their own standard of proof.  They have made their own law. In these cases, the standard is ‘comfortable satisfaction.’ We are told that this is a term of art, but the Panel did not seek to elucidate the meaning or indicate the reach of that term.  It is not part of Australian law, and it is important for people to understand that the most important aspect of this case – the degree of satisfaction before a finding of guilt can be made – is not made according to the law of Australia, but a doctrine developed by an international arbitral body – by gaggles of unelected foreign lawyers.  It is made under a law that the Panel did not elaborate on.  The Panel asked us to take this law on trust.  Should we do that?  Is it safe? Can we rely on them? Should we interrogate them?

There you have another reason why the AFL was very wrong to have adopted this process.

The Panel did not say whether the CAS doctrine was better or worse for the players or if it was different to the Australian law.  It merely said that it was satisfied to the required level.  You might in a bad dream put the required level somewhere between 51% and 99% and just say that at whatever point you draw the line, this Panel was satisfied that it had been reached.

In the course of its reasons, the Panel said expressly that ‘In so far as the Panel is sitting in Sydney, nonetheless, it is deemed to be sitting in Lausanne, and Swiss procedural law applies.’  I gather that that means that they apply the Swiss laws of evidence.  I know as much about those laws as a majority of the Panel knows about the laws of evidence of Australia.  Perhaps they are not bound by any rules of evidence.  There is nothing in the decision that suggests that they are, and there is a lot of hearsay and other material that would not be acceptable in a court.  These charges would never have got off the ground in a real court under our law.  This is another reason that this process is potentially diabolical for Australians.

It is not hard to come unstuck with these foreign arbitration agreements.  I heard a case in California about twenty years ago.  It involved a very large armaments contract.  The American buyer had allowed the Australian contractor to say that the contract would be governed by the laws of Australia, or the principal state where the contractor resided.  When the Americans applied for an interlocutory injunction, I wondered whether they were aware of our practice and procedure on such applications relating to what are called undertakings as to damages.  (The party asking for the temporary holding order has to promise to compensate the party restrained if it loses the case at the end.)  It became apparent in the course of the argument in Los Angeles that they were not.  They lost, and I did not have to deal with any complaints that were no doubt forthcoming about the drafting of this arbitration agreement that left the Americans exposed to findings under foreign laws that they did not properly understand.  (I might say that that clause was far more expeditious and lawyer-throttling than the Byzantine affair here.  The dispute had to be notified in five days and heard within ten days.  The hearing had to finish in a day, and the arbitrator had to give a decision that day or the next.  I commend this derailing of gravy trains.)

The Panel did however reject the proposition that the prosecution is obliged to ‘eliminate all possibilities’ which could point to innocence.  This is not my area of practice, and I do not know to what extent this means that the prosecution has to exclude any hypothesis consistent with innocence, or the like.  That is to say, I do not know whether this restriction makes the relevant Swiss law different to ours and if so how or why.

But the proposition remains.  The Panel says that the standard of proof imposed by the relevant foreign law is that of ‘comfortable satisfaction’ and then says, without more, that that standard has been reached in this case.

That mode of reasoning is hardly satisfactory intellectually to lawyers.  It will be even worse for the parties, because they are left up in the air about just how the process has been applied.  Has this Panel discharged its legal obligation to articulate fully and fairly the premises on which they hang their conclusion?

I must say that at best I am left in doubt on this question, and I notice from the press that I am not alone in feeling like being left up in the air.  The members of the first tribunal who knew more about the matters in issue were not so satisfied.  This panel was.  I am in trouble detecting the grounds of the distinction.  And if independent journalists are not convinced, where does that leave the players or Essendon supporters?

For my own part, I cannot understand how experienced lawyers could sleep easily after subjecting these players to these consequences on this evidence.  I find it very hard to resist the inference that it was WADA who got the benefit of the doubt, and not the players.  Well, Gentlemen, that is not the way we lawyers do things down here.

That brings me to another point.  In my view, the Code and this procedure are shockers for the players.  They are unduly loaded against the players.  As I said, someone advising the players independently would never have advised them to agree to anything like this.  I find it almost impossible to imagine a decent independent lawyer coming to a different view.

This Code looks to me to have been prepared for individual sports where cheating by drug use was out-of-control – like cycling, swimming, weightlifting, or athletics.  This Code is utterly inappropriate for people playing team sports in Australia.  It was developed where a very hard line could be and was taken and not resisted by those running the relevant sports – who have their own problems with corruption anyway.

I can say with considerable confidence that most independent lawyers on being briefed to conduct a hearing in a case like this against a whole team who were in substance being accused of cheating would, after about five minutes with the brief, have said to themselves: ‘Shit.  Who signed these poor bastards up to this?’  There is after all something odd about a jurisdiction that depends upon contract being exercised against people who have not separately, so far as I can see, agreed to the relevant arrangement.

There is simply no argument that this was a very bad wicket for the players to bat on.  Yet not once does the Panel make any comment about that fact, or show any morsel of sympathy, or one isotope of mercy.  They just sit on the conveyor belt and coldly and clinically take it to its destination.  The players do not take one trick, even though they had won by something close to a walkover the first time around.  It is all very unsettling and discomforting.

Now doubtless, the Panel would say that the failure of the players to take a trick is the proper result of the proper application of the Code.  The trouble with that response is that the players are footballers not jurists.  All that they know is that they lost on everything in a way that looks demonstrably unfair.  It is not for them to divine or define how they suffered that trainwreck.

There is one final point on the standard of proof.  On one issue, the players had the onus.  I have not found in the reasons any discussion of the standard of proof in that context.  The issue is fundamental.  This is another example of a bad Code at work.

9 How would this kind of issue be dealt with elsewhere?

How would this kind of case be dealt with elsewhere?  As it happens, I am in a position to give a reasonably confident answer to that question, at either end of town down here, for the benefit of our visitors.

Take a case occurring at what we call the Big End of town.  Let us say that some over-zealous executives have engaged in some trading that brings a bank into disrepute or bad odour with the regulator, and which might cause it to suffer what we fondly describe as reputational damage.  There has been real dishonesty.  Billions have gone west.  Innocent people have been badly hurt.  The regulator unleashes a squad of plods who miss the point, and both sides retain platoons of lawyers, PR consultants, and the rest.  At some time, the lawyers will get together in a dark room, and hammer out an agreement.  Millions or billions of dollars will be transferred to the Consolidated Revenue as some kind of a fine, or for costs, or pursuant to some kind of undertaking.  There may have to be a seal put on all this by a court, in which case you might see the most unedifying spectacle of the court agreed to accept a statement of facts agreed to by the lawyers for the parties, which may or may not occasionally bear some resemblance to the facts, or look like a composition of the Brontë sisters.  One way or another, the deal will be blessed.  No one will be publicly examined or humiliated.  The shareholders will just get a slightly lesser dividend, but the bonuses of the people concerned will not be affected.

The whole thing is utterly disgraceful, but it goes on all the time.  Somehow or other, our governments permit these deals to be done like this – in no small part, I think, because they are being bought off.  Even where there is litigation in matters alleged in court and the miscreant officers finally agree to settle, they go to huge lengths to document the transaction and to bury their role in it, so that their benevolence to the community remains monastic and anonymous.

I can speak with even more confidence about what might happen at the other end of town.  I have been dealing with disciplinary cases for the Melbourne Fire Brigade since about 2003.  I can say with considerable confidence that if a tribunal such as mine were to rub out firefighters on the basis of an offence of strict liability and a fixed penalty applied regardless of the level of personal culpability, then homeowners in Melbourne would want to pray that there was no fire during the succeeding period of civil industrial unrest that would arise while the Comrades expressed their solidarity until the firefighters were reinstated.  They would go out and stay out until the decision was withdrawn.

The football players, it seems, in this case, live in the worst of all possible worlds.  It is not unusual for our governments to provide more solace and protection to the privileged classes and the Establishment, than to people in the position of these players.  Equality is a myth foregone in our law.  Their additional misfortune is that their industry is not one where as yet they can exercise industrial muscle so as to meet outrages like this in the same way that orthodox trade unions would.  They are in a very bad no-man’s land – somewhere between here and Lausanne.  They are what terrorists call soft targets.

10 What was the nature of the CAS inquiry?

There are rules about cheating.  They are meant to protect other competitors, and to maintain standards.  They are enforced to protect people at large, and not to punish those found guilty of cheating.  Punishment is reserved for the courts.  The CAS is a disciplinary tribunal, and not a court.  Tribunals like that have no power to punish.  Their role is simply to protect those interested in the sports that seek their intervention.

This power is similar to the power of the Court to discipline a barrister, which our High Court has said is ‘entirely protective, and, notwithstanding that each exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.’ In so holding (New South Wales bar Association v Evatt (1968) 117C L R 177) the High Court overruled the Supreme Court of New South Wales which had held that ‘as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown toward a young man who had not understood the error of his ways.’

Even putting aside the word ‘mercy’, this ruling at first sight might appear to be against the interests of the Essendon players.  The reverse is the case, in my view.  What that ruling says is that the role of the tribunal is to enforce discipline for protective purposes.  For protection against what?  Cheating.  But there was no finding of cheating.  The Code says point blank that no fault or intent need be found.  All that this tribunal did was to make a finding on strict liability and then clear the way for the application of a mandatory sentence to take effect, irrespective of the justice in each of the thirty-four separate cases.  The whole object of this scheme in this Code is to banish judgement on any conduct or its consequences and then confine the tribunal to brute facts and ineluctable consequences.  To discover if cheating occurred, we have I think just to trust WADA.

There are good reasons why the Panel may not have referred to this part of our law.  One is that the majority did not know about it because they do not practise our law.  Another is that our law probably does not apply in this hearing.  Another is that even if it did, it was probably displaced by the provisions of the Code.  Is that a good result for Australia?

It is a shame, though, because a reflection on this part of our law may have caused the Panel to reflect more deeply on just what it was doing and why.  Justice Holmes said that our law started with looking for someone to blame.  Before you do that, you need to point to some harm for which the person is to be blamed.  The Panel did not undertake any such enquiry.

Had they done so they may have inquired about the utility of their role if the only relevant harm was the risk undertaken by the players as a result of putting their trust in their employer.  It is hard to explain why the Panel did not say at least something about how utterly inappropriate and unfair was the operation of the Code in this case.  What was the purpose of rubbing these guys out?  What has WADA and the CAS achieved?  What good have they done for the people of Australia?

Did the CAS ask the correct question in this case?

11 The pressures applied

I have no personal knowledge of the pressures brought to bear on these players during these proceedings, but after more than 40 years acting for or against bodies like the VFL, the AFL or these regulators, I have some understanding of how they operate.  When I acted for the VFL in the first half of the 1980s, the late Jack Hamilton was an immensely shrewd and capable administrator.  At any one time, he was surrounded by 12 men who were looking to knife him in the back, and he would walk across the town from Jolimont to visit us because he needed the fresh air and because he did not trust the phones.

The monolith that the AFL is now is a very, very different beast, and the problem that we have is the same that we have with almost any large corporation.  They become utterly soulless.  Their leaders have immense egos and equally immense needs to save face.  Most of them quickly forget how they got there.  There are many words that you do not mention in these boardrooms.  Two of them are humility and compassion.  I have no doubt that the AFL acted in a brutally arrogant and self-protective fashion in this case.  For the reasons that I have given, or tried to give, the AFL in my view does have a lot of explaining to do.

The regulators tend to be different.  They have a chip on their shoulder because they are not respected and they are about as popular as parking attendants.  They are generally unloved, and in this case they appeared to be totally useless.

The bullying of the regulators has, I am ashamed to say, a legal backing.  I have described how large corporations cut deals involving millions of dollars to protect their senior people – and to rip off their shareholders.  That is for the most part a privilege of only the rich in this country. This serene deal–cutting at the expense of others is not available to lesser mortals – like the Essendon footballers.

At that level, what is called plea bargaining operates very differently.  ‘Either, Sportsman, you agree to play ball with us and bow your head and say sorry – even for something that you deny doing – or we will throw the book at you and make life hell for you and you will be three times worse off – and let us tell you, Sportsman, that we have been given all the tools we need to be just as brutal as we like.’ One of the more awful consequences of this part of the failure of our law is that it gives the power to act as judge and jury to precisely those people who will abuse that power.

It is not hard to find examples of regulators offering deals at the end of a gun or heavying people for exercising their legal rights.  Here is an example from the press in 2014 when the players lost in the Federal Court after the AFL squashed a Supreme Court challenge.  John Fahey, a former politician, and former president of WADA, attacks people for challenging authority in the context of the refusal of a deal offered by the local regulator.

“I welcome the Federal Court’s decision,” Fahey said.

“The governments of 194 countries have accepted the code in support of clean and ethical athletes and officials. To me it was beyond belief that one club in one city of one of those countries would believe the rules should not apply to them.

“It is time certain people with big egos and fat wallets threw them both in the drawer and started focusing on 34 young men and their future in sport.

“Refusing to face reality only increases the likelihood of longer suspensions for the players. I sincerely hope that common sense now comes into play.”

By arguing in Federal Court that ASADA’s investigation into Essendon was unlawful, club chairman Paul Little – under increased pressure given the events of the week – and Hird hoped the 34 show-cause notices issued to past and present Bomber players would be annulled…..

When these show-cause notices were issued by ASADA in June, the agency’s new CEO, Ben McDevitt, tabled an option that might have resulted in the players serving backdated bans and resume playing from round one next year, provided they accepted they took the banned drug.

Well, there you have a politician being a heavy-handed politician, and a regulator being a heavy-handed regulator, both unattractively.  Fahey was hopelessly wrong, which is not uncommon, but in the events that have happened we now see that the players have suffered twice the penalty that they could have suffered.  Why?  Because they refused to bow their heads and play the game as their enemies wanted them to do.  They had been impertinent enough to seek the views of Her Majesty’s judges.  Is that your idea of justice?

I have had to deal with this problem in thirty years of sitting on tribunals, and I am very often deeply ashamed of what might go on.  No one – not the most senior of Law Offices or Crown Prosecutors – has ever been able to explain to me how offering a discount for pleading guilty does not constitute enforcing a penalty against someone who exercises their civil rights and pleads not guilty.  This is a travesty, and a breach of that constitutional document made 801 years ago that says that our government will not sell, deny, or delay justice to us.  This particular travesty arises from another failure – to ensure that our justice system can cope without having to pressure people – or at least ordinary people – to surrender their rights.

There was another and better-known part of Magna Carta, the clause that says ‘we will not go or send against’ any man ‘except by the lawful judgement of his peers or by the law of the land.’  The pressures brought on these Essendon players are simply another part of the injustice that they have suffered.  It is just wrong for anyone to accuse them of seeking legal redress unnecessarily, when their rights have been so often infringed, and when they are only where they are now because the enemy was allowed a second bite at the cherry.

I think the one thing that is common ground here is that the players have been put through hell for years.  God only knows what troubles we might see as a result.

12 We are not talking about sport

The regulators seek to give themselves a gloss by saying that they are protecting sport.  Anyone who claims that role in any part of this planet at this time is courting contempt for reasons I will come to.  But in this case, we are not talking about sport.  We are talking about people plying a trade in a part of the entertainment industry called professional football, and we are talking about people being run out of that trade by regulators and having their lives and reputations ruined.  This is too bloody serious is to be dismissed as sport.

We are talking of sport that is conducted as a business – that is, for profit.  For too long now, bodies like IAAF, IOC, FIFA and ICCB have been competing to see who can show themselves to be the most corrupt and untrustworthy. You would likely defame someone if you said they were a sports administrator.   Blatter is just the most obvious at the moment.  There are shockers everywhere, and what is most shocking is the sublime and undeniable arrogance of those who stay on even after the Titanic has hit the iceberg.

You can see this even now in the AFL and CA.  You could see it with the Adolf Hitler reaction to an eight year suspension by Blatter.  What was more revolting was the ban itself.  Presumably this stunt was perpetrated in the belief that the little crook will die in the meantime.  Is any administrator in the world going to ask anyone in the world to believe that if Blatter lives for eight years, he will somehow become trustworthy?  These galahs just live in a different world.

Just look at what has happened.  We now have a bookie sponsoring a grand slam tennis event – when match-fixing reaches tennis.  The march of live betting looks unstoppable in a nation already corrupted by pokies and dependent governments.  Cricket has been junking itself since Mr Packer arrived and has now plumbed a new depth with 20/20.  The Australian authorities chickened out in the face of Indian bullying, and later joined a cartel with India and England to carve up the game – and the moulah.  The players behave badly – but not as badly as the tennis players.  Armstrong was a serial bully, liar, and crook who has cast doubt on about every person who excels in sport.  Which ‘sport’ is the most corrupt?  And look what replays have done to umpiring and what betting ads have done to our last hope of decency.

It is about two generations since any responsible or sane parent could suggest to their children that they might have a role model in one of the sports heroes.  Harvey, Coleman, Rosewall, Thomson, Elliott, and Brabham are gone from our sporting lives, and sport went out the window with them.  There is hardly any such thing as innocence in any professional sport, and any functionary claiming to have achieved it is living in one of those bubbles of delusion for which they are properly derided.

13 Lindy Chamberlain

Let us look at some of the more obvious points of similarity.  Both cases involved complicated circumstantial evidence.  They both involved difficult expert evidence.  The accused in each case were heavily attacked over differing accounts they had given of aspects of the case.  The legal system showed itself to be seriously flawed in each case.  In each case it took a long time for the truth to come out.  Despite all these sources of difficulty, nearly everyone in Australia had a view on the case, and once they had adopted that position, they hung onto it like a koala on a gum-tree branch in a cyclone.  There is an iron law at work.  The most ignorant are the loudest.  There is bullshit everywhere.  Justice ultimately came out, thank God, in the first case.  We must wait to see if it happens in the present case.

May I be allowed two comments?  I said that the case of Lindy Chamberlain showed flaws in the legal system.  The verdict was appealed right through to the High Court of Australia.  Two Justices analysed in great detail the problems with the Crown case which in their view made the verdict insupportably unsafe.  The majority of the Court was not sufficiently moved to disturb the verdict.  The obvious policy of respecting the verdict of a jury on issues of fact won out for them.  There were therefore very substantial juristic and policy reasons for the division in the High Court which we can now see as showing a flaw in the system which was only cured after a Royal Commission.  I have not seen any justification for what I regard as serious failures of the legal system here.

The second thing is that Lindy Chamberlain was criticised for what she said and how she reacted.  No one could ever tell me what the textbook mode of reaction is for a mother who has had her child taken and killed, and who is then falsely accused of having murdered her own child.  What, then, is the textbook reaction of professional footballers who have been wilfully let down and deceived by their club and who are then falsely accused of cheating?

14 Who or what is WADA?

WADA is an emanation of the IOC.  That is not a good start.  The Thought Police have to be cleaner than the wife of Caesar.  How does WADA go about that?

The business of athletics has been notoriously badly run for years.  Its administration has been corrupt, and its athletes have been drugged.  Russia, not surprisingly, has been a serial offender.  The whole sport is rotten.

WADA was commissioned to enquire into IAAF.  It produced a most damning report that documented cases of officials extorting bribes to cover up positive drug tests which had allowed drug cheats to continue competing.  It found breaches that extended ‘to criminal acts of conspiracy, corruption and bribery within the organisation’s leadership.  WADA is alarmed that this ultimately allowed doped athletes to evade punishment and sanctioning for a long period of time.’  When a body has been gripped by corruption for years, as this one had been, it is impossible for those directing it to say that they should not be held responsible.  They knew or should have known – this is the VW dilemma.  You would therefore expect all of the board to resign if they had one iota of decency or, for that matter, one iota of respect for athletics.  And you would expect WADA to back those resignations.

One of those directors is the famous athlete Sebastian Coe.  Surely WADA would expect him to resign.  No, Mate. After he had handed down the report, Mr Dick Pound, a former head of WADA, said that Lord Coe was the man for the job to lead the shattered IAAF back to health.  This was so even though as a director of IAAF, Coe was looking straight down the barrel of a WADA finding of ‘a complete breakdown of governance structures and accountability.’  Interpol immediately issued a warrant for the man Coe will replace as president.

The IAAH has its HQ in Monaco.  Tax and the climate, old boy.  Coe had eulogised the previous president.  The current IOC chief comes from Adidas.  He is a mate of Putin and Coe.  He says – of course – that Russia should be there in Rio.  Coe was with the other team, Nike, and he wanted to stay on with them as president of IAAF.  Just think of the size of the store-rooms for brown paper bags at Adidas and Nike.  The Pound Report – it is thrillingly described as ‘Independent’ – said that Coe’s mate and right hand man Nick Davies was well aware of Russian skeletons.  Dick Pound is also an IOC veteran.  It looks like Seb got a heads-up on how Dick would respond.  He looked serenely relaxed during the press conference – as he looked at his luxury watch.  (And what a blue to be spotted with one of those on in an outfit like the IAAF.)  Coe’s predecessor is headed for the slammer.  He employed two sons at IAAF and his lawyer looked after anti-doping.  It will be a real hoot when his lawyer tenders Coe’s eulogy as character evidence.  Serious Groucho Marx stuff.

It is hard to imagine a clearer case of a breach of fiduciary duties.  How on earth can anyone expect this body to clean up its act if it is now being entrusted to the leadership of someone who was there on the board all the time when it got into the mess from which it now has to be extricated?  Will he sit on judgment on himself?  When will he be implicated next?  Is this just not another case of members of the Old Boys’ Club looking after each other?  In the name of heaven, this man is a champion, a lord, and has been presented to the Queen.  Well, yes, old boy, but, you see, appearances matter, and the fact is that he was there when the ship started to sink, and no one will trust us if we leave him now in charge at the wheel.

Instead we get bullshit like the following from one sports administrator:

We reiterate our unwavering stance against doping in sport and require that the IAAF, under the leadership of president Seb Coe to take all actions necessary to deliver a level playing field for all athletes, worldwide.  We want to see real action before Rio 2016.  We acknowledge that there is an enormous amount to do to restore the credibility of the sport of athletics.  We share the confidence that the President of the Independent Commission, Dick Pound, has placed in Sebastian Coe as the right person to lead the IAAF into a new era.

Pound’s endorsement is in neon.  They want to murder language as well as ethics.  His Lordship said:

I am extremely grateful to the WADA Independent Commission for its work and for the recommendations it has made.  The corruption that it has revealed is totally abhorrent, and a gross betrayal of trust by those involved.  Even though each of the impacted doping cases was eventually resolved with lengthy bans for the athletes involved, I recognise that the IAAF still has an enormous task ahead of it to restore public confidence.  We cannot change the past, but I am determined that we will learn from it and will not repeat its mistakes.

Coe was involved in the breach of trust.  The Russians should be rubbed out.  Their defence is that everyone’s a crook.  Well, it looks like everyone at IAAF was.  How can you try to act tough against a thug like Putin when you don’t even look pure?  If Dyson Heydon had come across a stunt like this in a union official, he would have gone troppo about errant fiduciaries – and he would have been right.

Dick Pound is one of those ‘holier than thou ‘guys who has been around sermonising for years.  He will lecture people about ethics at the drop of a hat.  It is apparently too much to ask that he might know better.  When I saw Dick Pound endorse his failed buddy Seb Coe on TV, for some reason my mind straight way turned to those glorious lines of Queen Margaret:

And where’s that valiant crookback prodigy,

Dicky, your boy, that with his grumbling voice

Was wont to cheer his dad in mutinies?

What you see here again is the incredible, unstoppable arrogance of sports administrators.  They will never own up.  They are too thick or too proud to enjoy a term and a style less than that of the average African dictator.

This is how The Guardian called it.

When the killer question came, Dick Pound gently rocked on his seat and took a discreet breath. “Given what you have said about the IAAF council, and that it must have known what was going on in Russia, do you believe Lord Coe’s position remains tenable?” he was asked.

There was a deliberate pause. Everyone knew Sebastian Coe’s tender career as the head of global athletics was at his mercy. A few damning words would have pulverised it. Instead Pound, that ice-veined investigator of Russia’s sporting corruption only two months ago, put a warm protective cloak around the IAAF president. And so a week that started with Coe on the ropes ended with him receiving an unexpected dose of smelling salts.

“I think it’s a fabulous opportunity for the IAAF to seize this opportunity and under strong leadership to move forward,” explained Pound, whose former role as an outspoken head of the World Anti-Doping Agency gives his words more credibility than most. “There is an enormous amount of reputational recovery that has to occur here but I can’t think of anyone better than Lord Coe to lead that.”

You could almost hear the sound of jaws plummeting through the floor of the Dolce Munich Hotel and into the basement. Understandably so.

Apparently, it takes a crook to catch a crook. The truth is, is it not, that you what would not believe one word of any one of these whackers said, even the word ‘the’.  What credence would I give to any pronouncement of WADA?  Any of the following – nil, nought, nix, zilch, or Sweet Fanny Adams.

We might have known we would have problems with Seb as the IAAF president when he refused to give up his Nike contract.  A kind of ethical blindness falls over the eyes of people when they take a job like this.  But Seb holds an ace at IAAF.  The guy he just beat for the job was a pole-vaulter from the Ukraine.  Putting a Ukrainian pole-vaulter in charge of a corrupt athletics body might be a little like putting a drunk in charge of a distillery.  Seb’s predecessor came from Senegal and was in the chair for sixteen years.  Seb says he did not know of corruption.  Seriously.  His Lordship really is playing with the faith of fifty million people, to adopt that well-known comment in The Great Gatsby.

Meanwhile, 34 young Australian have been put out of work at the instance of WADA, and one very compromised English lord is hanging on to an office he should not hold on the spontaneous endorsement of his mate, WADA’s boy, Dicky.  And two of the three wise men have gone back to Lausanne or London confident that they have taught those commoner yokels down there a thing or two about how people on top of the world look after things.

Those who seek to persecute Essendon might wish to reflect on the company they keep.  The trouble with all these outfits is the same.  If you lie down with dogs, you get up with fleas.  ‘Reputational recovery’ – what a preposterous term! – is out of the bloody question.  Give us a bloody break, Dicky.

And then there is this pearler.  How will this little duet between Dicky and Seb go down at Windy Hill?  They are broken on the wheel because they got conned; Lord Seb presided over crooks for a decade and flies on.  And it’s all thanks to Dicky and his mates.

There is one final point about this foreign enforcer.  When emanations of government in this country engage in litigation, they are customarily subject to expectations and protocols about how they should conduct themselves in dealing with the people who have entrusted them with power, and who pay their bills.  We don’t get that protection when we are dealing with guns for hire from out of town.  Just as the CAS is not a court, so WADA is not one our enforcers.  We might hope that people who are here on sufferance might behave more circumspectly.

15 A vicious, totalitarian law

As I said, this Code was not made for this kind of case.  It was made to deal with established crooks.  The word Draconian is abused, but here we have a real one.  This lot would make Putin blush and Stalin jealous.  All we are missing is the midnight knock on the door.

We have seen that WADA does not have to prove fault but the players have to prove its absence in order to beat the max – irrespective, we are told, of the justice of each case.  You will find these sweeping blankets in anti-avoidance tax acts, and they have proved notoriously difficult to keep under control.  The first reaction of the judges is to say that the parliament could not really mean what they have said, and there then follows the kind of minuet that I have referred to.

But the better analogy here is legislation designed to deal with terrorism or organised crime.  There are well known models for such laws.  They are deliberately savage to deal with savage people.  The consequent risks to our civil liberties are equally well known.

The level of corruption in sports administration is as notorious as the use of drugs in so many sports.  What we have here is the extreme reaction of an officialdom seen to be inept or corrupt in dealing with widespread drug use.  This savage law is aimed at presumed crooks.  That is why it is drawn from the start to override the basis of our law – where people are presumed to be innocent – and reverse the onus of proof.  ‘We will pay the best legal minds to create a bullet-proof wagon to skin any bastard that gets in our way.’  And the invasions of rights and obvious injustices predictably follow.

It is an outrage that Australians should be subjected to such a dreadful foreign law.

Let me give you some examples of how these guys operate.  I cannot recall seeing one decision of our courts referred to by this Panel.  They hand up lots of Latin and oodles of cases of themselves, the CAS.  They presumably were decisions made by lawyers appointed as arbitrators.  We do not know who these people are or what their qualifications or predilections might be.  Do we have the same trust in them that we have in Her Majesty’s Australian judges who have the invaluable protection of the Act of Settlement and who conduct their proceedings in the cauterising glare of public office and public scrutiny?  Not on your bloody Nelly, Mate.

Well, what kind of doctrine gets propounded by these anonymous piece-work hot-shots who now rule the lives of our athletes?  Here is a quote from another CAS Panel on the contentious subject of the duty of an athlete to inquire about what they are taking.  (You will of course bear in mind that the consent form so heavily relied on by WADA and the Panel said point-blank ‘All components of the intervention/s are in compliance with current WADA anti-doping policy and guidelines…’)

It is not open to an athlete simply to say ‘I took what I was given by my doctor who I trusted’… At the very least, an athlete who has been given medicines by a doctor should specifically ask to be informed of what are the contents of those medicines.  He should ask whether the medicines contain any prohibited substance.  He should attempt to obtain written confirmation from the doctor that the medicines do not contain any prohibited substances.

It will no doubt be objected that to require an athlete to ask such questions and to obtain such confirmation would be to place too heavy a burden on the athlete.  The Panel rejects such an objection.  It rarely, if ever, is the case that medicines are given to an athlete in circumstances in which it would not be possible for him to ask such questions or to obtain such confirmation.

If an athlete wants to persuade an anti-doping tribunals, or CAS panel, that he has been found to have a prohibited substance anybody, but that he was not at fault or negligent, or that he was not substantially at fault or negligent, he must do more than simply rely on his doctor.

This is what lawyers call a gloss on a law or rule.  It is a commentary that if accepted as a precedent comes to be accepted as law.  It is a law made by unelected foreigners in this case.  Do you think that that is a fair and good law to be applied to Australian athletes?  If so, do you think that it is appropriate to apply such a law simply by having it imported in here by foreign tribunals?  If so, how do you suggest that athletes might go about finding out about this law?  For that matter, how might their lawyers go about finding out about this law?  More importantly, is this a sensible kind of law to apply to the workings of an AFL football club that has a resident doctor?

For that matter, how do we know if the lawyers who succeed in getting their pronouncements adopted into de facto law are up to it?  Whose word do we trust on that question?  Are we right to have our athletes subjected to rules and the enforcement of those rules by people we have never heard of and who are beyond our control and outside our jurisdiction?

I suspect that the international thought police would say that local bodies could not be trusted.  I can understand that as a general and historical proposition.  But we are not some jumped up banana republic that is mired in corruption.  We are a mature, civilised nation that has a respect for the rule of law that is unequalled and we produce far more than out share of the best sports people in the world.  It is madness that we should entrust them to outsiders who do not know us or our way of life and who may well not share the principles we live by.

Let me give another example of how Australian lawyers might have difficulty in following this kind of law–making.  The players naturally objected that WADA should not be able to change its case, and they referred to a part of the code that on one view would preclude this.  ‘The Panel considers that the provision in Article R56 of the Code purposively construed draws a distinction between re-formulating an existing argument and advancing a new and distinctive argument.  It is inherent in the forensic process that sometimes a party’s argument is developed and at other times discarded.’ The Panel then went on to reject the submission of the players, as they did almost every submission made on behalf of the players.

One of the additional grounds that they gave is that the players were ‘estopped’ from advancing their submission.  Estoppel is a doctrine of our law that says that if you state your position and the other side relies on that statement and changes its position, you may be precluded later from changing your own position.   We commonly regard that law as being part of the law of evidence.  If so, as I follow it, then the Swiss law would be applied here: if the CAS has any laws of evidence.  I may be wrong on that, for more than one reason, but I have no idea of what the Swiss law of estoppel says.  I have no idea of what law of estoppel the Panel was applying because they did not say.  Is this a fair and sensible way to conduct a process as a result of which people are deprived of their livelihood?

Let me give you another example of something that happened in this case that would horrify Australian lawyers acting in the ordinary course of their practice.  The Panel had to deal with an argument that the scientific evidence that was new in the rehearing should not have been admitted because it was available to ASADA at the first hearing.  Part of the answer to that was: ‘However, it should be noted that Wada was not a party to the proceedings below.’  New player, new ball game.  We know that, but to suggest that that means that the ordinary rules should be disregarded here seems at best odd.  This is another example of this process arriving at results that for the ordinary common lawyer would provoke about the same reaction as if you went in and saw your GP, and the GP said that you should treble your consumption of fats, smoke two packets of cigarettes a day, drink at least one bottle of Scotch a day, and cease all exercise.

Over the objection of the players, WADA was allowed to introduce fresh scientific evidence.  Two members of the Panel did not know how dud science brought Lindy Chamberlain down.  This was just another submission of the accused that failed.

The Panel’s conclusion on this contest of experts is simple.  None of the Players’ experts, whether in the field of medicine or statistics, could rule out the possibility that TB-4 in Player A’s Sample was the product of exogenous administration.  But that falls far short of an acceptance that such possibility could justify the Panel, being comfortably satisfied that it did, and Professor Handelsman for his part could not rule out the possibility that the elevated levels of T B-4 in Player A’s Sample was endogenous.

Was it not just both stupid and insulting for these so very clever lawyers to say that its conclusion was ‘simple’?

And for the first time in more than forty years, I think I saw an invocation of the de minimis rule – against the players, again.  When I put that to a federal judge here forty years ago, he just gave me a long look and told me to move on.  I was very fond of that judge.  He said to me, more than once: ‘Mr Gibson, you are too young for this, but during the war, the trains had a sign: Is this journey really necessary?’  That is precisely what goes through your mind when reading the decision of the Panel.  What sort of people could inflict this pain and complexity on us?

Here is another problem with the Code.  The wallopers do not have to prove intent or cheating.  But the onus is on the accused to show innocence.  This then allows the tribunal to make assessments on both the conduct and the credit of the players.  The players are in the worst of all worlds, as when they get a backhander about the players’ evidence showing an economy with the truth.  And then there is the grand-daddy of all backhanders when we come to what an outsider might think should have been the whole point of the case.  Did Essendon get an advantage?

While no Player who gave evidence before the Panel accepted that the substance administered by Mr Dank had any beneficial effect, Essendon had conspicuous success at the start of the 2012 season, winning eight out of the first nine games of the season before being destabilized by a series of injuries.  While there could of course be many other factors for such team success, it could be argued on that basis that the proof of the substance was in the taking.  While the Panel is content to treat this as a barely visible thread rather than a strand, the factor is at least not inconsistent with their overall conclusion.

That is, if I may say so, not the way responsible judges should conduct themselves.  The charges made do not call for a consideration of this point.  But against what is conceded to be the total weight of the evidence, these three people, who between them know nothing at all about AFL football, speculate – and it is speculation – that the success of Essendon early in the season is such that ‘it could be argued on that basis that the proof of the substance was in the taking,’, having conceded of course that there could be many other ‘factors’ (a weasel word) for what had happened.  The Panel then goes on to say that it is content to treat this ‘as a barely visible thread rather than a strand,’ and that this observation, speculative and uninformed as it is, is at least not inconsistent with their overall conclusion.

Are the livelihoods of our footballers to be subjected to this kind of hypothetical claptrap?  Do their reputations hang by a barely visible thread?  If a barrister tried this sort of stunt in a court, they would be accused of poisoning the well, and subjected to an application to discharge a jury, and very likely get referred to the Stipes.  Just what point was the Panel trying to make?  Even their unwarranted speculation is predicated on a logical fallacy which the Panel will be familiar with under its Latin tag post hoc ergo propter hoc. 

They are examples of how this Code, which in its conception is so bad for the players, was so hard for them to deal with in this case.  The Essendon players look to me to have had about as much chance in this contest as they would had if they had been sent to play gridiron in New York or lacrosse, or whatever the Swiss play, in Lausanne.

Judging from the history of this Code, and its objectives, what you have in this Code and CAS lore is a savage response by officialdom in an endeavour to make up for generations of corruption and incompetence on its part across all sports all around the world.  That misbehaviour still rocks on at the highest levels, but these innocent Essendon bunnies just get flushed down the dunny as part of officialdom’s ‘reputational recovery’.

It stinks to heaven.  Even Lord Sebastian could see that.

I have a comfortable satisfaction with that conclusion.  I am satisfied beyond reasonable doubt on another.  None of the Essendon players who have been rubbed out will be able to follow the Panel’s reasons.  We have a big problem when people lose their job under a law and a process that they do not understand.  That is real Russian serf stuff, and we lawyers should be deeply ashamed that this kind of thing can go on.

Lord Sebastian might even be able to see that too.  If his mate Dicky lets him.

That leads me to use a term that I thought that I never would or could use.  National pride.  Who invited the bloody Swiss, a nation that specialises in living off immoral earnings?  Why on earth should I have to sit here and be lectured on sport by three blow-in galahs – a silk from England, a nation of shop-keepers, a silk from Belgium, a nation of chocolate-makers, and a silk with a call-up, stand-in cameo role from the convict colony?

More fundamentally, is it not revolting for Australians to be told that they can’t be trusted to run their own sport or to control their own athletes?

16 The terms of the decision and some irony

There are aspects of the wording of the decision which will give a lot of lawyers pause.  Some years ago, as it happens, I wrote a little book about arbitration, and at the risk of immodesty, which is an occupational hazard in this case, perhaps I might refer to something that I said about how arbitrators should prepare what they call the award, which is the decision in an arbitration.

The arbitrator should, therefore, prepare the award with care.  It is an occasion for intellectual honesty – put otherwise, having the courage of your convictions – but it may be as well to recall the observation made by one English judge to the effect that the most important person in a court is the loser.  It is a fundamental requirement of decency, if not procedural fairness, that the loser knows fairly and squarely how the arbitrator reached that result, but it is rarely necessary to express findings in terms that the losing party or witness may find it difficult to live with afterwards.

When drafting orders of the court that require people to do something, judges are very careful because they know the system will come into disrepute if the court publishes something that is not clear or leaves the parties in doubt.  Arbitrators should be guided by the same attitude.  So far as possible they should prepare awards that leave nothing for questioning or speculation.

Do you think that that is a fair description of how people deciding an arbitration should proceed?  If so, how do you think the Panel rates in its decision in this case?

You will be tiring of my querying how this Panel approached its task.  I am as much troubled by what they did not say as by what they did say.  There are obviously serious questions about whether a strict application of this Code as this Panel and the CAS at large interpret it had to lead to what most lawyers and others would say is an unjust and unreasonable result.

The inference I draw is that CAS appointed arbitrators do not see it as being part of their function to query the Code or WADA or their role in dealing with either of them.  That I think is a shame.  If that is the case, and the appointed arbitrators just do what they must with the materials that they are given, and without their personal or professional reflection on the worth or merit of their actions – how is their follow-the-leader model different to that which they condemned the players for following?

There is another irony.  The Panel decision, as I said, was written by lawyers for lawyers.  I find it very hard to follow.  I have no doubt that the players could not follow it.  (I put to one side whether a court might find the decision to be unlawful on that ground.)  The Panel’s understanding of Essendon footballers in 2012 is at best opaque, but the Panel could not have believed that the players would or could read this decision.  It follows that the Panel knew that the players would have to rely on their lawyers to explain to them what this decision means, and what they can do about it.  The players will just have to take on trust what they are told by people they trust, and then act accordingly.  That is not so far from the position that the players were in put in that started this human landslide.  The difference of course is that this time the players will not have to suffer the process and sanctions under the Code if those they trust get it wrong.  They will just be subject to the laws of Australia.

17 Disclaimers

I could be quite wrong in everything that I have said.  I have not had as much time as those professionally involved in the case to acquaint myself with the relevant law or evidence.  Neither is easy to follow.  I have not been able to follow the reasoning of the Panel in many instances and that failing may be down to me.  In particular, I have no knowledge of how this procedure could bind individual players, or what part the AFL played in that process.  I do not understand the connection between WADA and the Code or between either and CAS.  For the reasons I have given, this Code is in my view vicious to players, and those responsible for exposing the players to this process do in my opinion have a lot to answer for.  But even with those necessary caveats, I can say that in more than forty years practice I have never seen a more confused, toxic, and diabolical forensic mess.

18 Conclusions

The Essendon players are the victims of a witchhunt.  The following quote comes from a paper I wrote many years ago called Witchhunts and Holy Wars.  Each is a sure sign of a failure of civilisation.  The HUAC was the notorious House of Un-American Activities Committee – it stood for McCarthy or McCarthyism.  We see a bit of that around here.  This quote deals with the assault on that great American playwright, Arthur Miller.

The failure of due process before the HUAC takes your breath away, but it got worse before the courts.  When people were charged with contempt for refusing to answer, the trials did not take long.  The prosecution called expert evidence. They called an ‘expert on Communism’ to testify that the accused had been under ‘communist discipline’.  When Miller’s counsel announced he was going to call his expert to say that Miller had not been under discipline of the Communist Party, Miller noticed ‘that from then on a negative electricity began flowing toward me from the bench and the government table.’  Miller thought his expert was good, ‘but obviously the tracks were laid and the train was going to its appointed station no matter what.’  The nation that would have been entitled to see itself as having the most advanced constitutional protection of civil rights on earth had been scared out of its senses by a big bad bear that existed mostly in the minds of the tormented.

The Essendon players have been feeling negative electricity all along their nightmare ride on the WADA conveyor belt.

Hundreds of years ago, there was a sign on the main court building then in London called the Chancery.  That sign read:

It is the refuge of the poor and afflicted, it is the altar and sanctuary for such as against the might of rich men, and the countenance of great men, cannot maintain the goodness of their cause.

It could bring a tear to your eye.  That’s our good side.  Dickens described our bad side, and the bad side of Chancery, in Bleak House.  He said that the one great principle of English law is to make business for itself.

There is no issue about what side the enemies of Essendon are on.  They are on the side of the countenance of great men and on the side of the business of the law being to make business for itself.  The AFL, ASADA, WADA and CAS have jointly fuelled one of the greatest gravy trains for lawyers that this nation has ever seen.  Their conduct is disgraceful on that ground alone.  It is enough to make taxpayers and footy fans throw up.  As a lawyer, I am ashamed.

One thing has to be said about all the regulators.  They would not know the meaning of professional detachment.  On the night the CAS decision came down, John Fahey, an Australian politician who became president of WADA after Pound, was on TV fairly glowing and crowing and a representative of ASADA appeared to be undergoing some kind of religious revelation behind a pulpit.

There are whole libraries written about due process.  The rules of procedural fairness (or natural justice, or due process) mean that a person accused of infringing a rule must get a fair go.  Most Australians understand what this means and it should not be necessary to refer to what the judges have said about it. (The one thing the judges have made clear is that what amounts to a fair go depends on all of the circumstances in each case.)

I have tried to set out above why I do not think that these Essendon players got a fair go – or anything like it.  Putting to one side problems I have with the reasoning of the Panel, the major points on the failure of due process are:  They should never have had to face charges on these issues that did not call for proof of intent.  They should never have had to face fixed penalties.  They should never have been required to exculpate themselves on penalty once a finding on strict liability had been made.  They should never have been faced with a second prosecution after they succeeded on the first.  The prosecutors should not have been allowed to change their case.  The identical sentences for very different cases are demonstrably unjust and logically untenable.

There are six basic objections.  I regard the last as incontestable.  Any one would in my view preclude a finding of due process.  The only way to meet them is to say that the Code allowed if not required each such decision.  If that is so, how can the AFL justify exposing its players to those infringements on our civil rights that we all take for granted?  How does the AFL say that it looked after its players by exposing them to a hazard that no lawyer would have advised them to accept?

The AFL has behaved appallingly, but they got one thing right before the Panel – even though, I suspect, they knew that they might get hanged for it in court.  They told the Panel that ‘there is no suggestion that any player intended to use a prohibited substance’ and that if the Panel were to find that any player had used such a substance – not that the player had intended to use such a substance – ‘it was because he was the unwilling and unwitting victim of the gross negligence of others.’  Given those submissions, which the Panel did not reject, is it contended that the suspensions of these players is anything but an offence to both sense and decency?

As an advocate, you know you are for the high jump when the bench says that your argument is ‘clever’, or ‘ingenious’ or ‘nuanced’.  The argument has been utterly unpersuasive.  That is what we got from the Panel.  An argument that is clever, ingenious, and nuanced, but delivered with anal exactitude – and it is utterly unpersuasive.  The other word is bullshit.

There has been a lot of bullshit by hairy-chested regulators, administrators, and lawyers.  We are talking of a loss of rights that define not just what we understand by the rule of law, but are part of the fibre of western civilisation.  It is just wrong to flirt with the first principles of our law.  I would like to refer to some well-known words of the greatest jurist that this country has seen, Sir Owen Dixon.

The demands made in the name of justice must not be arbitrary or fanciful.  They must proceed, not from political or sociological propensities, but from deeper, more ordered, more philosophical and perhaps more enduring conceptions of justice.  Impatience at the pace with which legal developments proceed must be restrained because of graver issues.  For if the alternative to the judicial administration of the law according to a received technique and by the use of the logical faculties is the abrupt change of conceptions according to personal standards or theories of justice and convenience which the judge sets up, then the Anglo-American system would seem to be placed at risk.  The better judges would be set adrift with neither moorings nor chart.  The courts would come to exercise an unregulated authority over the fate of men and their affairs which would leave our system undistinguishable from the systems which we least admire.

There are the reasons why the injustice of this case reminded me of the injustice suffered by Lindy Chamberlain.  They are also why so many aspects of this case revolt me as a lawyer – and as an Australian.

19 Cuckoos

Orson Welles taught us that one thing that the Swiss have given us is the cuckoo clock.  Well, that is an improvement on Sep Blatter.

One Flew over the Cuckoo’s Nest was a protest book published in a time and place preoccupied with protest and drugs, the US in the early 1960s.  The old rhyme was:

One flew east

And one flew west

And one flew over the cuckoo’s nest.

Cuckoos lay their eggs in the nests of other birds.  They leave one egg in each nest.  The newly hatched cuckoo therefore feels free to throw out the others.  This is the dark side of Darwin’s natural selection.  Is there something Swiss about that?  Should we be above that?  This case makes you wonder.

Supporters of Melbourne Storm in the NRL know something of these things.  They know what arrant snobbery is about.  They know what it is to support a well-managed team that has a nut in the administration that breaks the rules in a crazy way.  They know what it is to see the mighty use their power to stifle inquiry and litigation. They know what it is to then see innocent players and supporters punched heartlessly in the head by power-crazed and vindictive administrators.  And, finally, they wonder if anything good ever comes out of Sydney.

As my old mate Dicky said, you learn from experience.

The best part of the Kesey book is the dedication.  Ken Kesey dedicated the book to someone ‘who told me dragons did not exist, and then led me to their lairs’.

Long may the Swiss continue to make cuckoo clocks and give a home to FIFA – but in the name of heaven, let them leave our poor, bloody footballers alone.

New books

Having achieved the biblical age, at which all judges must be younger than me, I have decided to release a book a day over the last three days – partly to keep the house in order, and partly in case God takes a different view about departure times.  The three books just released are, like the recent one on Summers in Oxford and Cambridge, collections of notes and essays previously released.  I would hope that they might all suit the general reader.  The collection on legal history might be reserved for lawyers, but it should be mandatory for all of them.

There is plenty of choice for Christmas shopping.

There is a mighty footy match tonight – may peace be upon the Wallabies.  They have nearly restored my faith in sport.

***

Summers in Oxford and Cambridge and Elsewhere

A traveller’s reflections on history and philosophy – and place

Geoffrey Gibson

2015

CONTENTS

PRAGUISH 2005

Reflections on Prague, Oxford, and the Cavalry and Guards Club

PHILOSOPHY OF RELIGION (OXFORD) 2007

The philosophy of religion at Oxford

OF BERLIN, OXFORD AND ELSEWHERE 2007

Berlin, Dresden, Paris, Oxford (Great Opera Singers), London, Cavalry and Guards and RAF Clubs

A WEEK AT OXFORD AND CAMBRIDGE 2009

Oxford (Hume and Kant) and Cambridge (Post-Modernism – playing tennis with the net down)

BERLIN NOW – A MOLESKIN DIARY 2010

Berlin and the World Cup

OXFORD AND CAMBRIDGE 2010

Wittgenstein at Oxford and Bach at Cambridge

CROMWELL (CAMBRIDGE) 2011

Course taught by Dr David Smith

SOJOURN IN SCOTLAND 2011

Touring the Highlands

CAMBRIDGE AND OXFORD 2013

Not keeping the peace at Cambridge and Chaucer at Oxford

FOREWORD

This book is a collection of memoires or essays that were written in the course of travels to Oxford or Cambridge or both to attend summer schools.  There is a note on the philosophy of religion and a note on Cromwell, but otherwise the notes consist of anecdotes and reflections more on the places visited and the people I met there than on the subjects that were taught.

I am fortunate to have been able to make these excursions, and I hope that others may be encouraged to do the same.

Geoffrey Gibson

Melbourne

September 2015

41,000 words

SOME LITERARY PAPERS

Tilting at windmills

Geoffrey Gibson

2015

CONTENTS

Foreword

1

Adolph and Richard

Meditating upon evil – Richard III (Shakespeare) and Adolf Hitler

2

Anna and Penny

A note on Anna Karenin and Penelope Cruz – mainly the former

3

Big Four of Shakespeare

My problems

A personal miscellany on Hamlet, Othello, King Lear, and Macbeth

4

Chaucer and hierarchy

The medieval hierarchy of Chaucer

5

Courtliness and Courtesy

The role of courtliness and courtesy in Shakespeare

6

Covert acts in Hamlet

Mystery within mystery in Hamlet

7

Crime and Punishment

A note on the Dostoevsky novel

8

Crime Fiction

A note on the novels of Donna Leon

9

Dead Proud Heroes

The argument, as Milton used to call it, is that the heroes of our two great epics, The Iliad and Paradise Lost, fell through pride.  We have grown out of heroes who seek honour through valour and we have grown out of the myth that a woman was the author of our original sin.  We look to our epics for heroes for our times.  The hero of The Iliad is Priam.  He declares that he is human by breaking free of the cycle of revenge.  The hero of Paradise Lost is Satan.  He has the courage to defy authority and to break the ties that stopped our becoming human.  Our epics still show us what we are.

10

Doctor Zhivago

The great novel of Boris Pasternak

11

Falstaff, Tchaikovsky, and Gatsby

Serendipity, theatre, concert hall and the Storm

12

Four pilgrims in Chaucer

Four pilgrims in the Prologue for Oxford Summer School

13

Henry IV at the Globe

A great play in a great theatre

14

Imagination, snobbery, and enlightenment

The place of snobbery and meaning in literature

15

Kangaroo

A note on the novel by D H Lawrence

16

Pasternak on Shakespeare

Thoughts of Pasternak on Shakespeare from two works

17

Poets in prose; and the First Fleet

Tony and Betty! Rope and Pulley!

Whimsy

18

Provincial Cooking

The art of prose of Elizabeth David

19

Rich and Will

Richard Burton on William Shakespeare

20

Riders in the Chariot

A great novel pf Patrick White

21

The novel as opera: dramatic truth

Thoughts on literary and historical meaning

22

Two big novels

Middlemarch and Les Miserables

23

Two novelists on Shakespeare

Tolstoy and Flaubert

24 Shakespeare’s Fan

John Keats idolised Shakespeare

25

Sons and Lovers – A Little Touch of Hamlet in the Night

D H Lawrence and Hamlet

26

Throwaways

The lines in Shakespeare that come from nowhere out of nothing

27

Who is that can tell me who I am?

The bottomless depth of King Lear

Foreword

These essays and notes come from the last five years or so.  They come from a lawyer and they do not claim to be works of scholarship.  I have written elsewhere about Shakespeare, great writing in history, and our great novels.  About half of the present pieces relate to Shakespeare, some in an anecdotal manner, although the grip of the Big Four goes on.  Most of these have been published by the Melbourne Shakespeare Society.  The other pieces relate to other kinds of writing, from cooking to crime, but with a few on novels.  The two substantive essays deal with great peaks in our literature – the role of Achilles and Satan in our two greatest epics, and our two greatest characters, Falstaff and Don Quixote.  If you said that the whole book was Quixotic, I would he happy.

Geoffrey Gibson

Malmsbury

Victoria

Reformation Day (Martin Luther Day)

2015

The 70th birthday of the author.

80,000 words

LOOKING DOWN THE WELL

Papers on legal history

Geoffrey Gibson

2015

CONTENTS

Foreword

1

1689 and 1789

Aide Memoire on Terminology

Different phases of constitutional change in England, France, and Russia

2

God Save Our Anglican Queen

Our Constitution is religiously biased in a way that is beyond us

3

Blackstone’s Magna Carta

A view of Magna Carta from the author of the American legal bible

4

The Role of Contract in the English Constitution

Why are English historians so coy about contract in their constitution?

5

The Dragon in the Cave

How America lost the War of Independence

As America continues to deal with the lesion of slavery and the separateness of black and white, its continuing fascination with God and guns means that it has not lived up to its revolutionary promise. The Americans do not understand the history of the English Constitution.  The decision of the Supreme Court in Heller is a throwback that puts into relief the failure of the nation to grow up.

6

English Serfs

What did serfdom mean in England?

7

Free Speech: Am I Free to Insult or Offend You?

The oppressor’s wrong, the proud man’s contumely.

A look at some of the nonsense about ‘freedom of speech.’

8

Hampden: A Note

A first look at Ship Money

9

How Moses v Macferlan Enriched Our Law –

 Lord Mansfield’s Heresy

The origin of our law of Unjust Enrichment

10

Jury and Parliament

From adviser to the Crown to the protector of the people.  We have not done enough to recognise how the jury and the parliament are there to protect us.

11

Penalties

How Do Public Servants Punish Us?

12

Positions of Trust: A Duty of Integrity

That we should know and respect our history does not entail that we should stay locked in jails built for other purposes.  The word ‘fiduciary’ causes people to go round in circles.

13

Sir Paul

The juristic work of Vinogradoff

14

The Ship Money Case

The case that stopped a nation: the biggest case ever?

15

The Trial of the Seven Bishops

Another case that stopped the nation – litigation as sport.

16

The Tyrannicide Brief

A review of The Tyrannicide Brief, Geoffrey Robertson, Vintage, 2006, PB $35.00 (429 pages).  (Written in 2006)

17

Three slippery words – liberty, freedom and prerogative

The ancients too were seduced by labels

18

800 Years On

Outlawry was a form of process, or unprocess, developed by Anglo-Saxons in the Dark Age when the notion of a judiciary was not known and when the only choice above this world was between God and Satan.  In the year of Our Lord 2015, the closest Australian advisers of Her Majesty Queen Elizabeth II – still the Supreme Governor of the Church of England but not the Empress of India – are conducting an audible debate about reintroducing a form of outlawry by depriving people of their rights as citizens of the Commonwealth without any judgment of their peers.  If they persuade the parliament and Her Majesty to make a law to that effect, they will risk going back more than 800 years and breaking a promise made by the English Crown that it would not go or send against any free man except by the lawful judgment of his peers or by the law of the land.

It took the English about seven centuries to build the rule of law and the Westminster system, with a little help from the Americans at the end.  It will take only a fraction of that time to lose both.  We have already given up two essential parts: that the executive should be run by an apolitical civil service with secure tenure, and that ministers should be responsible to the parliament for the failings of that civil service.  There has been an obvious and sustained decline in the quality of people attracted to the parliament or the executive.  That decline has not yet substantially damaged the judiciary, but there is little ground to hope that the decline will be reversed, or that the judiciary will remain untainted.

In a real sense, a lot of our legal process goes back to Magna Carta, given, it is thought, on 15 June 2015.  English philosophers have ignored it.  English legal historians and too many judges have just got it wrong, including some who should have known better.  Curiously, it is better known and better understood in places like the U S and Australia that are used to working under a written compact that separates powers and that has the force of binding and supreme law.

Magna Carta is one of the title deeds of Western civilisation, and the most significant tablet of the law in our history.  It is worth celebrating its 800th birthday.

Appendix

Some tips for young advocates

Foreword

A great English judge, Lord Devlin, said that the ‘English jury is not what it is because some lawgiver so decreed, but because that is the way it has grown up’.  That is so true of almost every part of our law.  Our law is its history.

This is why anyone claiming to be a real lawyer, and not just a bean-counter or meter-watcher, needs to get hand to hand with our legal history.  It is a rollicking story going for more than a thousand years of a people with a genius for law-making while pretending that they were doing no such thing.  It is the story of how the world got its only workable way of protecting people against bullies and each other – whether in the form of government or at large.

That which took a millennium to construct could be washed down the drain in a generation.  We have already trashed two vital parts of our governance – responsible government, and an independent civil service – and we have been scandalously weak in standing up for juries.  These failings come in large part because we have chosen to forget and then betray our heritage.  Sadly, I see no prospect of that decline being reversed.

Geoffrey Gibson

Malmsbury

Victoria

Australia

31 October 2015

70 years to the day from his birth.

95,000 words

SOME HISTORY PAPERS

Essays on Modern History in England and Europe

Geoffrey Gibson

Melbourne, Australia, 2

 

CONTENTS

Foreword

1 A Remarkable Politician- Joseph Fouché

The life of Fouché, terrorist in the Revolution, who survived Robespierre and then Napoleon – a cold blooded killer who became the ultimate survivor.

2 A Secular State

A look at the impact of the Reformation on the rule of law and the secular state in England and France compared to Spain under Franco.

3 A C Grayling

The Philosophy of a Man and the Atom Bomb

A detailed study of the arguments about bombing cities and civilians.

4 Cromwell

A short analysis of Cromwell as dictator following a Summer School at Cambridge taught by Dr David Smith.

5 Foretelling Armageddon

The Two Books that Predicted the Rise and Fall of the Third Reich

(With note on the Rise and Fall as they happened)

An essay on how Keynes and Hitler wrote books that predicted in detail the Second World War plus a summary of events as they unfolded.

6 La patrie violente

A detailed view of the century of unrest and violence that followed the outset of the French Revolution and reflections on the notion of historical truth.

7.Money and Politics

American gridlock and the refusal of supply – a failure in governance.

8 Napoleon and Hitler

Meditating upon Evil

A detailed comparison of the lives of Napoleon and Hitler and of the deaths they caused.

9 Oxford Essays on the Stuarts

The Anti-Catholic Tradition in late Stuart Society

Two essays about the Stuarts and the Constitution for an Oxford Summer School.

10 Some historians

An essay about great British and European historians, and Pieter Geyl.

11 The Have-nots are Going Down

A brief note on the rising problem of inequality.

12 The Last Two Samurai

An essay on how Lloyd George and Winston Churchill led a social revolution and brought in the Welfare State.

13 Faust and Perfidy in Albion

The Treaty of Dover 1670

How a King Sold his Soul – Or Did He?

An essay about a king selling out a country for God and gold.

14 Why the French Revolution was not English

An essay on the differences in revolutions in France and England.

15 Witchhunts, Holy Wars, and Failures of the Mind

An essay on witchhunts and holy wars from Salem to McCarthy; consideration of relations between Church and State.

Foreword

These papers were written between 2008 and 2015.  They relate to what we call the modern history of Europe and Britain.  Some were written in or as a result of Summer Schools at Cambridge and Oxford.  For example, the two pieces headed Foretelling Armageddon were first written as course notes at Clare College Cambridge, and now can be found in the fifth volume of A History of the West.

Five of the essays deal with the two big questions that have followed me for fifty years – how did France and Germany, two of the most civilised nations on earth, succumb to their total moral collapses, and with such frightful consequences for the rest of the world?  If you are being raped or killed by a soldier, do you care about the motives of those who sent him.

Three of the pieces deal with issues in Stuart England, and all come from Summer Schools.  My notes on Cromwell come from a remarkable weekender at Cambridge taught by Dr David Smith; those on the Stuart parliaments come from a week at Oxford taught by Dr Andrew Lacey.  The story of the Treaty of Dover should be told in a play or film.

There is a long look at the very flawed views on the bomb of A C Grayling, who might just be too busy to be able to indulge in scholarship, and a piece on the great story of Lloyd George and Winston Churchill on the People’s Budget – at a time when politics had real leaders.  The piece on witchhunts is the oldest, but the bullying of the majority is still just as threatening.

These are contributions by a lawyer and a legal historian whose professional training teaches him to proceed by example, and to look at what goes on elsewhere.  I hope that you enjoy them.

Geoffrey Gibson

Malmsbury

Victoria

Melbourne Cup Day, 2015.

128,000 words.