The letter below failed to meet the literacy requirements of The Age notwithstanding the ad by Clive Palmer they chose to publish on page one.

Dear Editor,

As I follow the leader of the Liberal Party, he is against constitutional change for a voice of First Nations, but he is for constitutional recognition of First Nations.  We will see you, but we will not hear you.  Like children, they should be seen, but not heard. 

The white man’s burden is enough to make an old man cry.  I have never known a worse time to be Australian.  And all for party politics.  How bloody small and mean a nation are we?

Yours truly,

Some time ago, I put out a post dealing with the immunity that managers of subdivisions sought to achieve in their contracts with the owners corporation – with the full backing of their representative business body, the SCA.  In it, I said:

Yet when you mention the term ‘body corporate’ or ‘managing agent’ to a lawyer or someone in real estate, you get a roll of the eyes, an intake of breath, and a sigh.  It is not hard to see why.

There you have the indicia of lawyers’ nightmares.  People living together and needing tolerance, restraint, and co-operation – all in short supply in our public life.  The old law feels out of place; the new law is worse, and written by people who have never set foot in a court or been humiliated there; the bureaucracy, if you find one, does not know or want to know.  The room for bush lawyers – at either end – is scary, and any talk of a common fund looks like a honey pot to people of low calibre – and it is forever remarkable the way that they find each other out at the same level.  Law dissolves into lore, and as Yeats remarked, the best lack all conviction and the worst are full of passionate intensity.

And that’s before you get to ethnic and class differences in the owners, and the cleavage in ages – between those who are unsafe unless they are looking at themselves in their cell-phone, and the aged, like me, who regard the makers of Facebook and Twitter as on a par with Hitler and Stalin, and hopefully destined to meet the same fate.

And it’s before you get to the role of the manager, who is there to make money, and the role of the committee, who are not there for the money, and who don’t want or need to get sucked into the hands-on management any more than is entirely necessary. 

There is room there for buck-passing and blame-dodging of the order of our national past-time that we have all just watched so horrifyingly in the Robodebt Royal Commission.

Now, after a dispute about arrears of levy owed by the previous owner, I have had a glimpse of just how tangled the relations can be – plenty of robots and denials of responsibility.  It is infuriating, but not worth litigating.  (What is?)  It did however lead me to write to the relevant minister as follows.

The Hon Danny Pearson, MP,

Minister for Consumer Affairs,

Level 3, I Treasury Place,

East Melbourne, 3002

By registered mail and by

danny.pearson@parliament.vic.gov.au

Dear Minister,

Rightless in Yarraville

I am 77 years of age, a former lawyer, living at [street address] Yarraville, 3013.  I bought my apartment here last year and became the registered proprietor on 10 June, 2022.

I am currently in a dispute about alleged arrears of levy with the owners corporation and the manager.  I contend that the only accounting available to the corporation is inadequate, but we can put that to one side for the moment.

In anticipation of such a dispute, I looked at the act (Owners Corporation, Act, 2006) and the relevant general law.  I also looked at the current Management Agreement dated 12 December, 2022 between the corporation and the manager, The Body Corporate Collective, Pty Ltd.  I wrote and put on my website a memorandum on 26 March, 2023.  [That is the post to the website referred to above.]

I attach a copy of each document.  (The agreement comes with the letter in the first attachment.)

I draw your attention, Minister, to the following.

1. The contract says it is ‘recommended’ by SCA (Strata Community Association) and ‘approved’ by CAV.
2. If a court or tribunal were to give effect to that document in its terms, the owners corporation would not be able to claim damages from the manager for negligence or breach of contract.  That would negate or frustrate the whole purpose of the act requiring mangers to be properly insured.  There would be no risk to insure against.
3. Regardless of how a court or tribunal may interpret the agreement, the document is grossly unprofessional and unfair.  But the juristic issues could be very tricky.  That is not the way the law should protect consumers from business overreach.

I have three questions for your department.

1. Has your department approved the terms of this agreement?  If so, how, when, and why?  If not, what will you do about it?
2. Will the department take steps to prevent SCA and its members from engaging in this or similar unfair conduct?  Or do we all just wait to see what happens when an affected owner goes to a court or tribunal?
3. Is the waiting time for these disputes at VCAT currently 18 months to two years?

Here is some background. 

SCA says many Australians live in strata title apartments: one in four.  The managing agents have great power over those people.  They have a very bad reputation.  I have known three since returning to live in Melbourne.  Their mode of operation is the same.  It is that of Centrelink.  People outside engage with the robots of the agent.  The robots ignore what they don’t want to hear, and just wear people down. 

I have experienced them as both landlord and tenant.  The agent at my previous address succeeded in being disliked by both.  If the SCA is right about those whose lives are affected by owners’ corporations, about one quarter of Victorians are becoming acquainted with the feudal structure of medieval England.

The current manager here in Yarraville, The Body Corporate Collective Pty Ltd, took over last December….

….The current dispute has been running for months, including the time that the current manger declined to deal with queries about accounting – in a letter of mine that it could not find. 

So far as I can see, the owners corporation keeps no relevant accounts itself.  It relies on the manager – under an agreement that has the defects I have referred to above.  The responsibility for keeping proper accounts does of course remain with that corporation under the act. 

When I recently referred the dispute to that corporation, the manager said ‘Please note, this is a private matter for your lot, and not a matter for the committee to engage in discussion on.’  It is in my experience unusual for an agent to tell its principal what it might do in the agency, or the people it may talk to.  But the corporation said: ‘The OC won’t be getting involved with this as this is a private matter (i.e., it is not an issue involving common property, and it is within BCS’s purview to collect funds.)’ 

Subsequently, Mr Wellavize told me I had no business in speaking to the corporation, and the chair of the committee now says that the committee does not want to be involved.  I had previously had a very affable discussion with the chair of the committee, during which I suggested a compromise, but Mr Wellavize advised her to stop those discussions.

If the matter goes to a court or a tribunal, it will ask the parties why the issue has not been resolved.  The answer presumably will be that the agent purported to tell the creditor and alleged debtor not to talk to each other.  This could be a first for our jurisprudence.

I have no contract with the manager.  The owners corporation does.  But the fiduciary duties of the manager (in s 122) are, in my view, not limited to the owners corporation.  They are owed to me.  That means the agent must act honestly and in good faith and show due care and diligence to me.  The agent does not do that by telling me not to talk to the owners corporation about an alleged debt and giving advice to it to the same effect.  For that matter, in so acting, it breaches its obligations to the owners corporation.

According to ASIC, The Body Corporate Collective Pty Ltd has one director, Austin Wellavize, and a paid-up capital of $12.  The real party, Mr Wellavize, therefore seeks immunity, and the company claims that it cannot be sued for the kind of liability that the law says it must insure against. 

If the law is there to protect consumers, this corporate agent mocks it. 

That may not be surprising.  On Linked In, Mr Wellavize says:

Prior to becoming The Body Corporate Collective’s founder, I worked in the banking and finance industry for a number of years. Banking gave me a strong respect for systems and processes, backed up by responsive communication. This approach is providing the foundation for the rapid growth of my business, particularly through the south eastern and northern regions of Melbourne. During this time I’ve gained experience in a wide range of matters gaining experience in resolving complex matters and developing an extensive knowledge of the Owners Corporation Act and Regulations. Uncompromising in my approach to delivering quality process and full accountability, my focus is on establishing and maintaining the trust of his clients to simplify decision-making and reduce waiting times for work to be completed. I’m a member of the Strata Community Association Australia (SCA) and I frequently attend seminars recognised by SCA. I have have completed a Certificate IV in Strata Community Management at RMIT. “My clients’ trust is at the forefront of my mind, that’s why I focus on my core values of being committed, being consistent, communicating effectively and being confident in my ability”.

If it matters, of my thirty years presiding over statutory tribunals, eighteen were spent as the Presiding Member of the Taxation Division of the AAT, later VCAT.  We promised and delivered decisions on our cases, some of which were difficult enough to reach the High Court, within six weeks of their being commenced.

I would be glad if your staff could acknowledge receipt of this letter.

I am very happy to talk to your staff about this.  There is widespread concern in a large part of our community.

Yours truly

It is really that bad for people in subdivisions with agents as managers.  In a future post, I will provide a draft of a fictitious reference to a tribunal.  That kind of litigation could break people – even the ‘winner’ if any – and not many judges would be happy to have to wade through such a Serbonian bog.

And that is before you get to the Management Agreement.  The one provided to me – the SCA special – is 22 pages – all in favour of the Manager, the SCA member (with the possible exception of clause 2.1 which includes in the functions and duties of the Manager : ‘Generally implement the decisions and instructions of the Owners Corporation with respect to its duties and functions as set out in this clause.’) 

I may say that there may well be an issue about the legal validity of that document.  The act (s. 11) says an owners corporation is to be managed ‘by or under the direction of’ the lot owners.  By a resolution at a general meeting, the corporation can delegate powers and functions to the committee.  But that provision follows the general law that the delegate cannot delegate that power of delegation.  It would appear to follow that the delegation to the manager can only be effected by the corporation, and not just the committee.  That would be consistent with the wording of s 11 (1), which is utterly inconsistent with any suggestion that the manager can tell the corporation what it must do’.

The notion that an agent can dictate to its principal how it should deal with a third party – to which it owes a fiduciary obligation – is close to being juristic heresy.  But if that is what the current regime permits, we are even worse off.  You have only to ask what would be the response if someone tried this out on with a public company like BHP or Wesfarmers.  The difference in bargaining power is a symptom of our current malaise.

Just imagine the Chair of BHP telling a shareholder who holds more than 2% of its issued shares that a conveyancer has told the Chair to stop those discussion and to deal only with the conveyancer.  But, I suppose, getting an audience with the members of a committee at some owners’ corporations might be a bout as easy as getting an audience with the king.

It is all a dreadful  mess – and one in which about one in four Victorians find themselves.  It is a matter of some wonderment that ordinary people volunteer to wade into such a minefield.

This is a continuing story – that keeps getting worse.  The ACCC does not answer correspondence, the Committee refuses to speak to me, and the robots at the agent keep returning my payments.

Mayhem in Yarraville.

Juristic Mayhem in Yarraville Apartments

Some time ago, I put out a post dealing with the immunity that managers of subdivisions sought to achieve in their contracts with the owners corporation – with the full backing of their representative business body, the SCA.  In it, I said:

Yet when you mention the term ‘body corporate’ or ‘managing agent’ to a lawyer or someone in real estate, you get a roll of the eyes, an intake of breath, and a sigh.  It is not hard to see why.

There you have the indicia of lawyers’ nightmares.  People living together and needing tolerance, restraint, and co-operation – all in short supply in our public life.  The old law feels out of place; the new law is worse, and written by people who have never set foot in a court or been humiliated there; the bureaucracy, if you find one, does not know or want to know.  The room for bush lawyers – at either end – is scary, and any talk of a common fund looks like a honey pot to people of low calibre – and it is forever remarkable the way that they find each other out at the same level.  Law dissolves into lore, and as Yeats remarked, the best lack all conviction and the worst are full of passionate intensity.

And that’s before you get to ethnic and class differences in the owners, and the cleavage in ages – between those who are unsafe unless they are looking at themselves in their cell-phone, and the aged, like me, who regard the makers of Facebook and Twitter as on a par with Hitler and Stalin, and hopefully destined to meet the same fate.

And it’s before you get to the role of the manager, who is there to make money, and the role of the committee, who are not there for the money, and who don’t want or need to get sucked into the hands-on management any more than is entirely necessary. 

There is room there for buck-passing and blame-dodging of the order of our national past-time that we have all just watched so horrifyingly in the Robodebt Royal Commission.

Now, after a dispute about arrears of levy owed by the previous owner, I have had a glimpse of just how tangled the relations can be – plenty of robots and denials of responsibility.  It is infuriating, but not worth litigating.  (What is?)  It did however lead me to write to the relevant minister as follows.

The Hon Danny Pearson, MP,

Minister for Consumer Affairs,

Level 3, I Treasury Place,

East Melbourne, 3002

By registered mail and by

danny.pearson@parliament.vic.gov.au

Dear Minister,

Rightless in Yarraville

I am 77 years of age, a former lawyer, living at [street address] Yarraville, 3013.  I bought my apartment here last year and became the registered proprietor on 10 June, 2022.

I am currently in a dispute about alleged arrears of levy with the owners corporation and the manager.  I contend that the only accounting available to the corporation is inadequate, but we can put that to one side for the moment.

In anticipation of such a dispute, I looked at the act (Owners Corporation, Act, 2006) and the relevant general law.  I also looked at the current Management Agreement dated 12 December, 2022 between the corporation and the manager, The Body Corporate Collective, Pty Ltd.  I wrote and put on my website a memorandum on 26 March, 2023.  [That is the post to the website referred to above.]

I attach a copy of each document.  (The agreement comes with the letter in the first attachment.)

I draw your attention, Minister, to the following.

1. The contract says it is ‘recommended’ by SCA (Strata Community Association) and ‘approved’ by CAV.
2. If a court or tribunal were to give effect to that document in its terms, the owners corporation would not be able to claim damages from the manager for negligence or breach of contract.  That would negate or frustrate the whole purpose of the act requiring mangers to be properly insured.  There would be no risk to insure against.
3. Regardless of how a court or tribunal may interpret the agreement, the document is grossly unprofessional and unfair.  But the juristic issues could be very tricky.  That is not the way the law should protect consumers from business overreach.

I have three questions for your department.

1. Has your department approved the terms of this agreement?  If so, how, when, and why?  If not, what will you do about it?
2. Will the department take steps to prevent SCA and its members from engaging in this or similar unfair conduct?  Or do we all just wait to see what happens when an affected owner goes to a court or tribunal?
3. Is the waiting time for these disputes at VCAT currently 18 months to two years?

Here is some background. 

SCA says many Australians live in strata title apartments: one in four.  The managing agents have great power over those people.  They have a very bad reputation.  I have known three since returning to live in Melbourne.  Their mode of operation is the same.  It is that of Centrelink.  People outside engage with the robots of the agent.  The robots ignore what they don’t want to hear, and just wear people down. 

I have experienced them as both landlord and tenant.  The agent at my previous address succeeded in being disliked by both.  If the SCA is right about those whose lives are affected by owners’ corporations, about one quarter of Victorians are becoming acquainted with the feudal structure of medieval England.

The current manager here in Yarraville, The Body Corporate Collective Pty Ltd, took over last December….

….The current dispute has been running for months, including the time that the current manger declined to deal with queries about accounting – in a letter of mine that it could not find. 

So far as I can see, the owners corporation keeps no relevant accounts itself.  It relies on the manager – under an agreement that has the defects I have referred to above.  The responsibility for keeping proper accounts does of course remain with that corporation under the act. 

When I recently referred the dispute to that corporation, the manager said ‘Please note, this is a private matter for your lot, and not a matter for the committee to engage in discussion on.’  It is in my experience unusual for an agent to tell its principal what it might do in the agency, or the people it may talk to.  But the corporation said: ‘The OC won’t be getting involved with this as this is a private matter (i.e., it is not an issue involving common property, and it is within BCS’s purview to collect funds.)’ 

Subsequently, Mr Wellavize told me I had no business in speaking to the corporation, and the chair of the committee now says that the committee does not want to be involved.  I had previously had a very affable discussion with the chair of the committee, during which I suggested a compromise, but Mr Wellavize advised her to stop those discussions.

If the matter goes to a court or a tribunal, it will ask the parties why the issue has not been resolved.  The answer presumably will be that the agent purported to tell the creditor and alleged debtor not to talk to each other.  This could be a first for our jurisprudence.

I have no contract with the manager.  The owners corporation does.  But the fiduciary duties of the manager (in s 122) are, in my view, not limited to the owners corporation.  They are owed to me.  That means the agent must act honestly and in good faith and show due care and diligence to me.  The agent does not do that by telling me not to talk to the owners corporation about an alleged debt and giving advice to it to the same effect.  For that matter, in so acting, it breaches its obligations to the owners corporation.

According to ASIC, The Body Corporate Collective Pty Ltd has one director, Austin Wellavize, and a paid-up capital of $12.  The real party, Mr Wellavize, therefore seeks immunity, and the company claims that it cannot be sued for the kind of liability that the law says it must insure against. 

If the law is there to protect consumers, this corporate agent mocks it. 

That may not be surprising.  On Linked In, Mr Wellavize says:

Prior to becoming The Body Corporate Collective’s founder, I worked in the banking and finance industry for a number of years. Banking gave me a strong respect for systems and processes, backed up by responsive communication. This approach is providing the foundation for the rapid growth of my business, particularly through the south eastern and northern regions of Melbourne. During this time I’ve gained experience in a wide range of matters gaining experience in resolving complex matters and developing an extensive knowledge of the Owners Corporation Act and Regulations. Uncompromising in my approach to delivering quality process and full accountability, my focus is on establishing and maintaining the trust of his clients to simplify decision-making and reduce waiting times for work to be completed. I’m a member of the Strata Community Association Australia (SCA) and I frequently attend seminars recognised by SCA. I have have completed a Certificate IV in Strata Community Management at RMIT. “My clients’ trust is at the forefront of my mind, that’s why I focus on my core values of being committed, being consistent, communicating effectively and being confident in my ability”.

If it matters, of my thirty years presiding over statutory tribunals, eighteen were spent as the Presiding Member of the Taxation Division of the AAT, later VCAT.  We promised and delivered decisions on our cases, some of which were difficult enough to reach the High Court, within six weeks of their being commenced.

I would be glad if your staff could acknowledge receipt of this letter.

I am very happy to talk to your staff about this.  There is widespread concern in a large part of our community.

Yours truly

It is really that bad for people in subdivisions with agents as managers.  In a future post, I will provide a draft of a fictitious reference to a tribunal.  That kind of litigation could break people – even the ‘winner’ if any – and not many judges would be happy to have to wade through such a Serbonian bog.

And that is before you get to the Management Agreement.  The one provided to me – the SCA special – is 22 pages – all in favour of the Manager, the SCA member (with the possible exception of clause 2.1 which includes in the functions and duties of the Manager : ‘Generally implement the decisions and instructions of the Owners Corporation with respect to its duties and functions as set out in this clause.’) 

I may say that there may well be an issue about the legal validity of that document.  The act (s. 11) says an owners corporation is to be managed ‘by or under the direction of’ the lot owners.  By a resolution at a general meeting, the corporation can delegate powers and functions to the committee.  But that provision follows the general law that the delegate cannot delegate that power of delegation.  It would appear to follow that the delegation to the manager can only be effected by the corporation, and not just the committee.  That would be consistent with the wording of s 11 (1), which is utterly inconsistent with any suggestion that the manager can tell the corporation what it must do’.

The notion that an agent can dictate to its principal how it should deal with a third party – to which it owes a fiduciary obligation – is close to being juristic heresy.  But if that is what the current regime permits, we are even worse off.  You have only to ask what would be the response if someone tried this out on with a public company like BHP or Wesfarmers.  The difference in bargaining power is a symptom of our current malaise.

Just imagine the Chair of BHP telling a shareholder who holds more than 2% of its issued shares that a conveyancer has told the Chair to stop those discussion and to deal only with the conveyancer.  But, I suppose, getting an audience with the members of a committee at some owners’ corporations might be a bout as easy as getting an audience with the king.

It is all a dreadful  mess – and one in which about one in four Victorians find themselves.  It is a matter of some wonderment that ordinary people volunteer to wade into such a minefield.

This is a continuing story – that keeps getting worse.  The ACCC does not answer correspondence, the Committee refuses to speak to me, and the robots at the agent keep returning my payments.

Mayhem in Yarraville.

Historians are aware of, but remain prone to, one fallacy – because something happened, it had to happen.  It was inevitable.  Hindsight brings not just finality, but certainty – when in truth things could have all turned out quite differently.  They are big on this at Oxbridge.  People make history, and not the other way around.  And there is such a thing as chance.

A related problem is that history is written by the winners.  Some call this bragging rights. 

But when it comes to sporting contests, we tend to go clean off the rails.  The Grand Final we just had was as close you could get to a paradigm even money bet from beginning to end.  One mate who follows the Pies described it as ‘unrelenting agony.’  (That is why I do not watch my teams on live television.)  Until the siren went, all three possible endings were possible.  As it happens, Collingwood won by less than a goal.  That prize could well have gone to Brisbane.

But when I went to On the Couch, a show I like and respect, for analysis, I am treated to an hour of closely argued reasoning about why Collingwood won.  And I did so with the God given certainty, that had Brisbane won by a goal, I would have been treated to an hour of closely reasoned analysis of why that was the case.  When the whole history of the game turned on hundreds of instances where a deviation of centimetres would have produced a different outcome.

As a commentator, Stan Alves was incomparable on this issue.  A side might get up by a contentious point right on the bell, and after a while, you would wonder why the other side bothered to turn up.

And now we get analysis dressed up with layers of statistics that make it all sound scientific.  I am very suspicious of all this – as I am in expressing predictions for the future in percentages or odds.  I don’t believe there an adequate empirical basis for either exercise.

Well, it is harmless enough in sporting matters – unless you want to invest on the basis of such ruminations – but other considerations apply to matters of state.  Toward the conclusion of a five-volume history of the west, I find the following.

The turning point in the battle of Gettysburg came on its second day.  Lee was determined on staking the fortune of the South on a major battle – he thought that the North was too strong to lose the war, and he was probably right.  He was intent on taking the North by its flank on his right, near a hill called Little Round Top.  His men charged again and again – the Southern boys were not used to losing battles, and the North had usually fallen before their blood-curdling onslaught.  The casualties were appalling. 

The end of the Northern Line was commanded by Colonel Joshua Chamberlain, who taught Rhetoric at Maine.  He knew that as the end of the line, his retreat would mean that the battle was lost.  He had been told that retreat was not open to him.  He saw that his men were nearly out of both ammunition and the will to resist.  He gave orders to them to perform a manoeuvre that is hard even on the parade ground.  They were in part to retire at an angle behind the end of the line, and then advance in a sweeping movement around the enemy.  In the film, Jeff Daniels plays Chamberlain, and when he gives the order for ‘Bayonets’, we can see the whites of his eye, and we know that he is staring straight into eternity.  He is, as they say, running on adrenalin.  The manoeuvre was perfectly and successfully executed.  The Northern line held.  The Southern advance had been repelled.  The next day Lee saw his army smashed in what is still remembered as Pickett’s charge.  It would never be the same threat again.

Lincoln was desperate for victory.  His generals were awful; the Union was shaky; and Lee seemed able to toy with them.  Negroes were being lynched in New York.  Had that battle been lost, Lincoln may have had to sue for peace.  If the Union had been lost, and if the Confederacy had gone on as a hostile slave-owning republic, the light of the West in the New World could have gone out.  Whom could Europe have looked to if Germany had still waged war on it, not just once but twice? 

All those consequences turned on the extraordinary valour and coolness of a lecturer in rhetoric from Maine during the evening of 2 July 1863 around a small wooded hill in Pennsylvania.  A deviation of one foot by one of the thousands of bullets fired that day could have led to a different result.  It is on such threads that the history of the whole world hangs.

People make history; history is just the story of what they did.  As we look at phases or periods or trends or movements or eras or epochs, it all comes down to what someone did or did not do.  We who look backwards must remember that it could all have been so different, that chance plays such a great part.  It is said that during the charge a Southern officer pointed his revolver at Chamberlain at point blank range.  When he pulled the trigger, he found that his revolver was empty.  There are some who doubt that part of the story, and other parts of the story, too, but does that matter? 

Chamberlain survived the war.  He was wounded on six occasions, and he had six horses shot from under him.  He was hit by two bullets at Little Round Top.  One shot was stopped by his sword scabbard.  It is said by some, and disputed by others, that he presided over the parade of the defeated Southern army before the Appomattox Court House.  Of his own initiative, he ordered his men to come to attention and to present their arms as a mark of respect.  The courtesy was reciprocated when the commanding general from the South wheeled on his horse, and dropped the point of his sword to his stirrup with that customary Southern grace, and the great Confederate ensign was dipped.  Not a word was said on either side.  Was this a fine start to the flawed process called reconstruction?

We do know with some certainty that Chamberlain died in 1914, the year that a more frightful conflagration started in another part of the world but that would draw in the United States.  He had been involved in organising a fiftieth-year reunion for those involved in the battle of Gettysburg, but ill heath stopped him from attending.  Some say that he was the last veteran of the Civil War to have died of wounds received during that war. 

For some reason, Chamberlain did not receive his Medal of Honour for his gallantry at Little Round Top until 1893.  The Medal of Honour is now held at the Joshua Chamberlain Museum in Maine.  In 2013, an anonymous donor presented the Medal to the historical society that runs the museum.  It had been found in the back of a book bought at a local church sale. 

The story of that Medal, like all history, was all down to chance.  It is like Hamlet’s musing in the graveyard on the noble dust of Alexander the Great ending up as a bung in a beer barrel.  We need to try to stay somehow earthed as we muse upon some of the themes that we might see in our stories of what men and women did before our time.

Enduring resolve to fight for freedom and the truth.

That was the leading front-page headline on The Weekend Australian following the retirement of Rupert Murdoch.

The breathtaking and brazen falsity of the headline proves the opposite.  Rupert Murdoch had just agreed to pay more than $US 760, 000,000 to victims of lies that he had consciously promoted at Fox News.  In that he was aided by his son and successor, Lachlan Murdoch.  Who had committed a most grievous error of judgment by suing a publication for libel for saying just that.  And then he ran up the white flag.

Paul Kelly was just one of those who described Rupert Murdoch as the ‘most successful business man in Australian history’.  What are the criteria of such greatness or success?  Money – et praeteria nihil .  It matters not if in the course of amassing the fortune you become one of the most loathed people in the nation. 

On that basis, Alan Joyce would be a strong contender.  And he never put capital at risk.  Au contraire, they kept throwing millions of dollars at him while he trashed the business.  (And when Judas got found out, he at least had the courtesy to throw away the bribe and hang himself.)

But while Joyce trashed a brand, the Murdoch family through Fox News have trashed a nation.  And its failings and current stresses now threaten the whole world order.

All for money.  For Rupert and family.

The poison hit here.  John Howard said ‘At Wapping in the 1980s he stared down the print unions, thus striking a blow for free speech.’  A select poodle, Greg Sheridan, said ‘His contribution is overwhelmingly positive, his legacy magnificent.’

What is the family’s biggest lie?  The competition here is intense.  They say they are engaged in a battle of ideas and they seek after truth.  (Like the prophets of old in the desert?)

But they succumb to the bullshit of their own press.  Two of the richest people on the planet, one educated at Oxford and the other at Princeton (philosophy, no less), say they are standing up for the common people against bureaucracies and elites. 

So you can be magnificent, and utterly successful and above all others, but not elite.

Truth is dying at the hands of this malevolent family for the same old reason.  There’s one born every minute.

There are times when you really regret the demise of a sane sensible civil service in this nation. 

I sent a letter to the Melbourne address of the ACCC.  It contains a complaint from me as a consumer against what appears to me to blatantly anti-competitive behaviour that affects and harms about one in four Australians.  Its text is set out below – without the schedules.

Why did I entrust Australia Post with this task?  Because in the year of Our Lord 2023, this body that is there to look after us consumers against greedy corporates does not see fit to hand out on its website email addresses to those who want to help it do its job. 

Well, that is not quite true.  They trust the press to communicate with them by email – but not mugs like you or me.  So I twice sent the letter to the press email address and asked them to see it got to the proper person.  I got no response to either.  Perhaps I should have produced a press union card.

So, I go to my good Vietnamese friends at the Yarraville LPO, and get them to printout the letter and send it by registered mail.  Just half an hour out of my life.

It has just been returned to me marked: ‘Refused by receiver.  Must have a contact name on it.’

What kind of galah runs a shamble like this?  I was instantly reminded of the lady at ASIC who after I had told them of my change of address told me I had to fill a form in with the same information.  Did she want me to jump the counter and become a filing clerk for the afternoon?

What we have is a slow collective death of the mind brought to us by robots and the ACCC now going head-to-head with ASIC for the worst run department in Australia.

And don’t worry, I know better than to ask who is ‘responsible’.  That word is dead and buried.  Pentecostally.

Letter that the ACCC refused to accept

ACCC

Level 17, 2 Lonsdale St,

Melbourne, 3000

Dear ACCC,

Strata Community Association (SCA)

I write to state my concern about the activity of the SCA and one of its members The Body Corporate Collective Pty Ltd. 

The background is set out in my letter to the Minister CAV which is the First Schedule to this letter.

My post of 26 March, 2023 is in the Second Schedule.

The Third Schedule contains one form of the Appointment of The Body Corporate Collective by my owners corporation.  I can provide a true copy when I get an email address for that purpose.

This whole area is a legal minefield, but two questions arise that I raise with you.

First, did CAV approve the terms of the SCA standard form?  I await the response of CAV.

Secondly, is the SCA acting lawfully in endorsing this form of agreement and encouraging its members to use it?

I refer to my post generally, and in particular to the following.

Anti-trust law is not my strong suit, but consider this. 

A group of participants in a market have the power to dominate it to the point of holding a monopoly.  The market is controlled and rendered exclusive by government licensing.  The service providers combine to form standard terms of agreement between suppliers of their services and those wishing to purchase them.  The object and effect of one term is twofold.  It reduces competition between suppliers.  And it imposes hardship on purchasers by depriving them of basic common law rights in a manner that would not have been accepted by parties negotiating at arms’ length in a free market.

What do our competition laws have to say about this?

The issue may I suppose be clouded by the power of a tribunal under a state act to declare terms unfair, but I would not think it was appropriate for state or federal regulators to leave it to people to fight it out.  They could go mad or bankrupt in the process.

I may say that in my view there is a real issue about whether this document was ever validly executed.  I do not know if the owners got independent legal advice.  I suspect the response may have been ‘You can take it or leave it.’  I doubt if there was a resolution of the owners, and the Victorian act states the usual prohibition of delegation by a delegate.  Other parts of the act, which follows the old public company model, may give rise to technical arguments – which are for another day.

The only other thing I would say now is that litigating these issues is beyond the means of most owners and indeed at risk of being too hard for many courts and tribunals.

I am happy to discuss this further.  As I remarked to the Minister, a lot of Australians are affected by issues like these, and litigation has all the hallmarks of litigious misery – which is something I know about.

Yours truly,

Geoffrey Gibson

6/46 Fehon St,

Yarraville, 3013

18 September, 2023

He is small in stature, and unremarkable to look at.  He may have the small man syndrome.

He was not born to the purple, or anything like it.

He is an animal loving vegetarian.

He believes he can see into the German psyche – which means he believes that there is such a thing.

When younger, he dabbled in rebellion, if not revolution.

He has a grievance against the world – he believes that he has the answer, but too few people understand him.  He is a prophet rejected in his own nation.

He is therefore a thwarted champion lusting for revenge on the whole inferior ungrateful world.

If seen by a psychiatrist now, he would be diagnosed as suffering from ‘chronic megalomania, paranoia and moral derangement.’

His ego is such that he has few if any friends.  He treats badly any of those who do not see or accept his superiority.

He has a longing for the hero (held) – especially a Teutonic one.

He believes that one great man can make all the difference.

He dreams of a massive building to be his shrine forever.

He has an immense power to appeal to, if not hypnotise, Germans – as a people.  He lives to captivate and control his followers.  It is a lust for power.

And he knows he has this gift, and he goes over the top to exploit it in order to bring his audience under his power.  They feed off and incite each other.  And neither feels any qualms about the process – which can subvert their own agencies of self-control.  That means that the mob can and does surrender to him.

He believes that Jewish people belong to a different race that is inferior to that of the German people and are a threat to the German nation.

By and large, and with some give and take, each such statement could be applied to Adolf Hitler and Richard Wagner.  I am not suggesting that one is as evil as the other – merely that the concatenation puts a lot of people off the man Richard Wagner. 

And I am yet to meet the person who likes or even takes seriously his poetry.  Some can take the librettos seriously – but not me.

A friend of mine – if it matters, a lady of an earlier generation – said ‘It feels like another nail in the coffin of my childhood.’ 

That is so right.  Cleopatra, as was her wont, put it more largely.

O, withered is the garland of the war.

The soldier’s pole is fall’n; young boys and girls
Are level now with men. The odds is gone,
And there is nothing left remarkable
Beneath the visiting moon.

Offhand, I cannot think of any person who had as much living impact on the way I see the world and my tiny place in it.  I set out below my views on Ron Barassi in one of four books about the books and people who have furnished my mind – and defined my place in the world. 

Whatever else might be said of Barassi, he was not immortal.  But in the name of heaven, my world is not the same without him.

This whole town will stop when we put him down, and so it bloody well should.  He left us as our elder.

BARASSI

The Life Behind the Legend

Ron Barassi and Peter Mc Farline

Simon and Schuster, Australia, 1995  Rebound in half leather, red and blue.

When you get into your 70’s, you are tempted to say that we did things better in our time.  It’s almost always bullshit, just as it was always bullshit to be told that your schooldays were the best days of your life.  But, in the name of God, some of us had it good in footy in the 50’s and 60’s.  Things are very different now – and try as I may, they don’t look to me as good now.  This book is about one of the reasons for the difference.

My Mum and Dad did not follow footy.  I chose Melbourne in about 1953 because it was the capital city.  I got a Melbourne jumper.  The secretary of the MFC, Jim Cardwell saw us running round and gave us season’s tickets.  I was too young to go.  Then on one memorable day with some other young believers, I walked to the house of Denis Cordner in Hartwell.  I wore number fifteen (the jumper of Athol Webb, a decoy full forward.)  Denis Cordner wore the number one guernsey and was the leading ruckman.  He was also a charming man.  He was an amateur – there were some left.  He and his wife looked after three or four little boys for an hour or two one Saturday morning with Milo and Maltesers, and took our autograph books away to be signed by the whole team.  I was in awe, and floated home in a dream.  We got the autograph books back and started to work more seriously on our swap-card collections.

I used to listen to the Pelaco Inquest and the London Stores Show with religious fervour (one was on DB and the other KZ), and go out and get The Globe – that we later called the Pink Comic – on Saturday night.  It was then that I started the lifelong habit of only reading a report of a game – or now watching a replay of it – if the right team won.  There is no point in punishing yourself just for the sake of it. 

Ron Barassi was born at Castlemaine Hospital on 27 February 1936.  His father played in a Premiership for Melbourne.  He was the first VFL player to be killed in action.  Ron junior was five.  The great player and coach Norm Smith helped bring up the young boy.  Mum got a job at Miller’s Rope Works in Brunswick and took a night-time job managing the sweets bar at the State Theatre.  Ron went to a couple of tech schools and for years sought to study engineering part time.  He didn’t show much aptitude for footy, but people noticed a determination that was somehow supernatural. 

Barassi started training at Melbourne in 1953.  He took his father’s number – 31.  Norm Smith was the coach.  That foster father relationship was fraught.  One day Barassi sought to pay his board by tipping out a bottle of threepences.  Smith told him to take it all back. 

From 1954 to 1964 Barassi played at ruck rover and captained Melbourne while they won six premierships.  I was there for the last of them in 1964 with my mother, and, as at 2019, we had not won one since.

Smith invented the role of ruck rover for Barassi.  As Ron ran out with Cordner, he asked Denis what he should do.  ‘Just don’t get in my bloody way.’  When Ron got married in 1957, Jim Cardwell organised a working bee of players to help build the house.

Barassi is one of the stand-outs of the game.  I saw him in a number of Grand Finals, including that in 1956 when the crowd was so thick, I got lifted off my feet and had to be pulled up to safety. 

Jack Dyer said:

Despite the greatness of John Coleman, the fluency and cunning of Whitten, the sheer brilliance and courage of Skilton, I nominate Barassi as the greatest player since the war …He is the team man to end all team men

He had the capacity to lift the whole team by example – especially in Grand Finals.  Just before half time in the 1959 Final, Essendon were a couple of goals up.  Barassi kicked three goals in five minutes when Bluey Adams thought he had only a one in three chance each time.  The first he kicked with defenders draped all over him, and ‘the next two came from the strongest marks I have ever seen.’

A lot of the story is part of legend.  In 1958, Hooker Harrison and Weideman sucked Barassi in and the Pies won.  When they tried to repeat the dose in 1960, Melbourne held them to 2.2.  In 1963, Roger Dean – thought to be as good an actor as James Dean – staged a free and got Barassi rubbed out for four weeks.  It sounds medieval but the tribunal refused to allow TV film or still photos into evidence.  (These were the days when it was hard to get a magistrate and impossible to get a JP to go against the evidence of the rozzers.)  In 1964, I was seated at the Punt Road end in direct line with the two goals of Gabelich and with a clear view of the Frog’s goal.  Smith thought they had stolen that game.  It was far from Barassi’s best.

Then the world fell in.  Barassi did the unthinkable.  He changed sides.  And to make it worse, he went to Carlton, a side that had unfortunate connections to politics, crime, and the church.  It was hard to know what was more offensive. 

Barassi, the ultimate team player, said something that in 2019 is worth reflecting on.

Loyalty is a word of which I am very, very wary.  Too often it can just mean blind faith.  And in a way blind faith is mindless.

For now we can see that the unthinkable was but a premonition of the revolution that Packer would bring about in cricket about a decade later.  And the cause in each case was exactly the same.  All sports in Australia were administered by haughty, inbred blockheads who took those in their charge for granted and just laughed in their face at players who suggested that they were underpaid – which they so obviously were.  They make the noblesse of the ancien rgime look downright sensible, but God spared these galahs the guillotine.

The next year saw the vacuous members of the Establishment purporting to manage Melbourne commit the greatest crime in sport since the Red Sox sold Babe Ruth by sacking Norm Smith.  Nemesis was just as cruel.  Melbourne went without flags and always looked spineless.  Collingwood was a leader in maintaining serfdom over players and has since paid its own hideous price.  Carlton, as was its wont, bought a few flags, to general opprobrium, and has since descended into the kingdom of nothingness.  In truth, all the Victorian power-house clubs had dry runs in the cause of making the game national, but for many of us who have grown old, the sell-out to television and the dollar has been at best demeaning and at worst a disaster. 

Barassi saw success at Carlton, not least in 1970, and North Melbourne, but the second coming was not so good at Melbourne or Sydney.

In 1954, I had listened on the radio to us lose to Footscray in the Grand Final.  About fifty years later, I heard their full back that day describe his day.  He turned up for work as usual as an apprentice butcher.  He went home to Thornbury for lunch.  He drove to the MCG.  Bugger!  He had forgotten his boots.  He asked the man in blue to hold his spot open, went back home for his boots, and got back just in time to hear Charlie Sutton’s pre-match address.  In which, I am told, he said: ‘You blokes just worry about the ball – I will look after the other stuff.’

In many ways, I would trace our loss of innocence back to 1964 and 1965.  The relevant chapter in this book is headed ‘Little Boys Shed Tears.’  That I was a big boy did not exempt me.  We are not talking of a loss of blind faith – but a loss of any faith. 

And we go back to a time when the secretary of a footy club would stop his car and hand out tickets to kids from Glen Iris State School because of their jumpers, when people burning autumn leaves in the street signalled the start of the season, when the biggest cricket game in town was Victoria v New South Wales on Boxing Day, and when after seeing the Bulldogs at the Western oval, members of the Smorgon family would call in for fish and chips, and the elder would tell the younger not to mention the pickled onion to mum as it was ‘bad for the gazz.’

Now, older men in pubs talk about Trumper and Bradman, and Barassi and Whitten.  I never saw Trumper, and in a flat kind of way, I am not sad that I never saw Bradman.  But I sure did see Barassi, and that memory is not just part of me, but part of my country.

If the letters to The Age mean anything, the AFL has a lot to worry about following the dismissal of the case against Maynard.  And most is coming from parents and grandparents – like me.

The discussion has been oceanic.  No discussion I have seen cited the relevant rule.  A lawyer would say the discussion might cover four questions.

First – what does the relevant rule of the game – or, perhaps, law of the land – provide?

Secondly, what findings of fact were open on the evidence before the tribunal to determine whether those findings of fact showed conduct that breached the relevant rule?

Thirdly, if a charge was found to be proved, what was the appropriate range of penalty?  This presumably would require assessing the custom or precedents of the tribunal.

Finally, does the consequence so arrived at conform with the expectations of the community or market?

I have little notion on the first three, but the answer to the fourth looks to me to be ‘No’.

Which term is á la mode.

In The Last King of America, Andrew Roberts defends George III and he takes what is in my view a firm swipe at the hypocrisy of the colonists at the time of the Declaration  of Independence and its apologists since.

I have set out before my views on the subject in the book A Tale of Two Nations.

When American nationalism reaches a peak, which it does from time to time, when Americans become suffused with the glow of their own patriotism, some might remember that Dr. Johnson regarded the Tea Party as ‘theft and hooliganism’ for which he uttered his famous maxim:  ‘Patriotism is the last refuge of a scoundrel.’  When TV historians rhapsodise over the American Declaration of Independence, they are making a conscious effort to put behind them the limitations of the European Enlightenment of the 18^th century.  There was not, of course, a woman in sight.  This was a show for men only, and wealthy establishment men at that – men who could subscribe to the Tory view that a nation is best governed by those who have a stake in the nation.  The Founding Fathers were anything but advocates of democracy.  The very idea would have been as vulgar as it was unsound.

But, above all, the Declaration was of, by, and for, white men, and not men of any other colour.  Opinions were asserted in 1776 that would find no place in America more than two hundred years later.  We have seen that the Indians were written off as savage mass murderers:  ‘He [King George III] has incited domestic insurrections amongst us and has endeavoured to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions.’  This is a dismissal of an entire people by reference to race, and whatever else might be said of Indian war-making, they did not have the same means for dealing out death that their enemies had – they were for the most part just trying to protect their own people and land; and no one could ever accuse the Indians of genocide. 

The reference – or, as the Declaration was issued, the lack of reference – to African Americans is no better.  Jefferson had drafted a clause making the fatuous suggestion that the English – well, they said King George III – had instituted a trade of slavery, frustrated attempts to stop it, and then excited the blacks to rise up against ‘us’ – who were by definition white.  All this is expressed in the most colourful language:  ‘He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the person of a distant people who never offended him.’  ‘This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king ….He has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce ….’  And so on.  Mercifully, Congress struck all this nonsense out.  But they left as it was the phrase ‘all men are created equal’ and that statement was, to their certain knowledge, untrue. 

Well, this evasion, if that is the term, on the subject of slavery might be expected from a slave-owner from the largest slave-owning state.  But what was not to be expected was the lack of candour on the causes of the revolt.

The American Declaration of Independence follows the form of the English Declaration of Rights.  It records the conduct complained of to justify the termination of the relationship.  (This is what lawyers call ‘accepting a repudiation’ of a contract.)  The English did so in short, crisp allegations that were for the most part devoid of oratorical colour in the Declaration of Rights. The allegations are expressed in simple enough terms and were not phrased so as to encourage an evasive form of denial. 

How does the American Declaration of Independence go about this process?  Before it gets to an allegation that the king maintains standing armies, which is a relatively specific charge, it made ten allegations of misconduct that were so general that they would not be permitted to stand today as an allegation of a breach of the law on a conviction for which a person might lose their liberty.  The fourteenth allegation, which is hopeless, but which appears to be an attempt to invoke the English precedent, is that:  ‘He [King George III] has abdicated government here.’  Then there is the fifteenth allegation:  ‘He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.’  If that allegation of plunder and murder – the old word was ‘rapine’ – had been seriously put, you might have expected to see it before an allegation of abdication – and before every other allegation.  The eighteenth allegation relates to the Indians. The nineteenth was the allegation relating to slavery and which was struck out.  Those drafting the Declaration were not evidently keen to get down to the subject of people of another race.  Or tax.

Let us put to one side that all these allegations are made against the Crown, and not the government, and that none of these allegations refers to any statute of the British government.  There is no history of the American Revolution that has been written that says that the American colonies revolted from their subjection to the British crown for any of the reasons that are set out in the eighteen clauses of the Declaration of Independence.  The primary reason that history gives for the revolt of the colonists was the imposition, or purported imposition, of taxes upon them by the British parliament – when those being taxed had no direct representation in the parliament levying the tax.  Most divorces are about money, and this one was no different. 

But British taxation is only mentioned once in the Declaration of Independence.  That reference is fallacious.  It is against the King.  The Glorious Revolution made it plain that he could not impose a tax.  The only reference to the English legislature comes when those drafting the documents scold the English for ‘attempts by their legislature to extend an unwarrantable jurisdiction over us’.  Given that the 1688 revolution secured the supremacy of the English parliament over the English Crown and made it transcendentally clear that only the English parliament could levy a tax on its subjects, it may have seemed a little odd for Jefferson to be suggesting that the American colonies were somehow subject to the English Crown, but not to the English parliament.  ‘Jurisdiction’ is a word that has come to bedevil American jurisprudence, and it looks like the problem may have started very early.

The American Declaration of Independence is therefore of limited historical value in explaining why the American colonies proceeded as they did, or what values of humanity they proposed to pursue for their future. The tragic truth is that the barefaced lie about slavery would haunt the young republic until it was expunged by the death of more than six hundred thousand Americans in the Civil War and by the moral courage and intellectual genius of Abraham Lincoln, the one unquestionable gift of the United States to humanity.

Roberts says that ‘of the twenty-eight charges [in the Declaration], only two really stand in terms of logic, natural law, chronology or politics – namely, the seventeenth, about imposing taxes without the colonists’ consent, and the twenty-second, about Parliament being ‘invested with the power to legislate for us’ [which it undoubtedly was] – yet those two were so important that they went to the heart of the issue, and justified the whole rebellion on their own.’ 

The author say that while taxation may have been the excuse for rebellion, the real reason was that the colonists thought they were ready, willing and able to govern themselves.  The Civil War would, to put it softly, suggest that they were wrong.

So far as I can see, the author does not deal with the fact that George III on his own had no power to levy tax on the colonies.  That was the whole issue of the Glorious Revolution, and Jefferson used the Bill of Rights as a template for his Declaration. 

But Mr Roberts does refer to an observation of Sir Lewis Namier, whom I regard as the ultimate authority on the governance of the empire then.  I will set it out.

This junction between the King and Parliament of Great Britain was by itself bound to carry the supremacy of the British Parliament into the Colonies; and the very fact that George III so thoroughly and loyally stood by the constitutional principles of the time rendered a conflict inevitable – had he entertained any idea of power or authority apart from the British Parliament, he might have welcomed the conception of a separate sovereignty in the Colonies.  The necessary limitations to the authority of the British Parliament, a territorial assembly, were not as yet understood.

Well, there you are.  A nation so conceived – the phrase is Lincoln’s – was bound to run into serious trouble.  Which it has now done – twice, at least.

The issue can I think be formulated as a question.  Which of the following do you think is the lowest?  Ted Cruz.  Lindsey Graham. Jim Jordan.  Mitch McConnell.  Mike Pence.  Donald Trump.

Our two main parties have platforms that you could swap.  It is hard to find policies of any real difference.  People pay allegiance to political parties for the same reasons they follow a faith or a footy team.  But on some issues of national and historical moment, party allegiances should be buried.  Two such issues are the treatment of those on this land before Europeans arrived on it, and how best to preserve this land against changes in the environment of the kind that the earth has experienced since it was formed.  Yet here, each has become a party political issue – for no reason that can be divined from the platform of either party.  And in both, the same people are involved in saying ‘No’ to change at least some of which is both desirable and necessary.  The tactic is simple enough.  You just say ‘Boo!’. 

These are real failures in our governance – governors who are too timid to make necessary changes, and the governed timid enough to go along with a dreary minuet of a mediocre nation too scared to stand on its own.

Twiggy says senior people are leaving Fortescue because they are not ‘aligned.’  In other regimes, that pronouncement might be terminal.  ‘It’s my way or the high way.’  He should get Mr Goyder to bring over his team from Qantas.  They will agree to anything.

Mr Goyder looks to suffer from the Andrews syndrome.  He has been in power uncontested for so long that he believes his own bullshit.  He ought to be left with one chairmanship, and I hope it is not the company in which I hold shares.

And that is certainly not Qantas.

And the Prime Minister is learning the hard way that people in his office should not associate with ratbags.  And he did not just associate with them – he fawned on them.  He might reflect on Caesar and his wife, and the notorious capacity of Oz politicians to be duchessed.

Visitors to G20 are greeted at Delhi: ‘Let us work together for a new paradigm of human centric co-operation’.  Unless you are a Muslim.  The PRC was not taking this lying down to excuse the absence the Sphynx.  It was absorbed ‘in thought study to fully implement the new era of socialism with Chinese characteristics to condense the heart and soul to achieve new results.’