Here and there – How taxing it is

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

Part I

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

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

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

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

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

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

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

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

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

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

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

In the same paper, Terry McCrann said:

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

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

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

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

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

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

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

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

[To be continued.]

Here and there – Anthony Trollope on laws and morals

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My dear sir, nobody now questions its justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My dear sir, nobody now questions its justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No nation that is so governed can call itself civilised.

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

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

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

 

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

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

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

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

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

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

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

Dostoevsky put it this way.

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

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

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

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

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

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

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

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

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

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

Macaulay says they were wrong on both counts.

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

Should officers have resigned rather than carry out their orders?

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

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

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

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

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

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

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

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

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

Here and there – Three Naughty boys

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

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

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

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

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

Passing bull 73 –Bull about legality and Brexit

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

As I have remarked elsewhere:

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

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

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

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

Poet of the Month: Lee Cataldi

Spring 1971

I cross the sunlit square

and pay

sixpence for an imported

rose

the trees are bare

nothing disturbs the soil’s

repose

but summer’s trumpets in

the sky

harmony of spaces

is music silent harmony of faces

yours

as you walk before me

you compose

more than the eloquent

colours of your clothes

weary of fights

I lean about the square the wind

accommodates the sun the grass

is putting itself to rights

it seems wrong

to ask you to repair

the damage of other nights

would you do it for a song?

Postscript

The Rule of Law and Racism

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

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

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

The Fifth Amendment relevantly provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BROWN v BOARD OF EDUCATION                                                                                      

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is so ordered.

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

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

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

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

‘No, leave it in.’

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

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

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

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

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

Passing Bull 69 – Secrecy and Camps

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

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

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

Secrecy

             (1)  A person commits an offence if:

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

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

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years.

Exception

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

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

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

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

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

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

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

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

Poet of the Month: Verlaine

Through Interminable Land…

Through interminable land

Ennui of the plain,

Vague snow once again

Gleams like sand.

The sky is copper

Devoid of any light,

You might almost gather

The moon had lived and died.

Floating clouds

Grey oak-trees lift

In near-by woods

Among the mists.

The sky is copper

Devoid of any light,

You might almost gather

The moon had lived and died.

Wheezing crow

You gaunt wolves too,

When north winds blow

How do you do?

Through interminable land

Ennui of the plain,

Vague snow once again

Gleams like sand.

Up and down with the doctors

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.