When Money is King

At the Yarraville pub last night, they broadcast the Anzac ceremony before the AFL night game between Richmond and Melbourne.  This is now a fixed part of the AFL schedule – or ritual, or liturgy, if you prefer. 

It was quite a show –lights out; slouch hats with feathers on Light Horse; burning tapers applied to an urn; the nation’s best in songs of remembrance (which I could not hear); the traditional bugle calls and anthems; and solemn protestations of fidelity and patriotism – a word we don’t use much in this country.

I wondered what a Turkish, German, or Japanese man ten years older than me would make of it all.  (After all, to someone born in 1945, torchlight parades were and are dreadful affronts to humanity – both in Europe and the U S, which saw a revolting revival at Charlottesville in August 2017.  Do you recall?  ‘Jews shall not replace us.’)

And then, as the young waiter at The Naked Egg is wont to say, it’s ‘Game on.’   And some bright young thing in PR at the AFL decided to put up a banner: ‘It’s only a game’. 

Bullshit.  This is one of the biggest businesses in the land.  (And when an Australian cricket test captain was imprudent enough to repeat that line, his coach berated him in tears.)

And then with the game can come the gaming ads, and when they do, I feel sickened.  Could they defile Anzac Day with gaming ads?  Some countries have laws about insulting the nation.  This would be a real test case if we had them here.

Everyone I know – every single one – regards the gaming industry as the curse not just of sport, but of the nation.  And they also think that the AFL and government have failed us very badly in allowing this addiction to bring shame on all our sports. 

And there you could have it all – going straight from ‘In a solemn hour’ to some crude oaf blurting nonsense about ‘Sportsbet Multis.’  From the military honouring our fallen, to the grubs seducing and then ruining our vulnerable.

When I was about ten, I accompanied a friend of my father who was a War Graves Inspector on a five-day tour of duty of cemeteries in central Victoria.  It was quite an education for a young boy.  I was glad to see the care taken with these graves.  I wonder if they still get it.  And I was glad I was not in country where taipans roam.

I was eighteen when I first went to Singapore and I wept when I was looking at graves of people younger than me.  I have been to Gallipoli and marvelled at the serenity of Anzac Cove on the morning I was there.  I also wondered at the closeness of the trenches of the two sides. (We went to Gallipoli via Troy, the scene of an epic war.)  I have been to the major sites on the Western Front, seen our flag in the cathedral at Amiens, and gazed in horror at the meadows full of countless white crosses.

And yet I have an ambivalence about Anzac Day that nearly matches that which I have for Australia Day.

Anzac Day falls on the day that we first landed at Gallipoli.  It was a military disaster more colossal than that which culminated in the evacuation of Dunkirk.  Our young nation gave up the best of its young men to a slaughterhouse at the request of a foreign power that still supplies our head of state.  We did so in a campaign that was lost due to British incompetence entrenched by a class system that we were brought up to despise.

We repeated the dose on the Western Front, but there at least we made a real contribution to victory.  (And my dad’s dad was there – and he came back.)

We did not have to be in that war, or at Tobruk in the next war.  But we had to be at Kokoda – and we prevailed.  We had to.  We were defending ourselves and our land.

So, I wonder about the obsession with Gallipoli.

But I don’t wonder about our comparative silence about the wars after Nagasaki – Vietnam, Iraq, and Afghanistan.  Our government lied to us on each occasion to get us into the war.  (Can any government commit a grosser breach of trust?)  Every one ended badly.  And worst of all, we repudiated the losing soldiers.  That was in my view the most shameful moral failure in our history.

And the wounds still show, and the men still suffer, and we are not doing enough for them, and they are killing themselves.  The RSL was a principal offender, and I am told that the Viet vets now turn against those from Iraq and Afghanistan.

It is right and proper to honour the fallen, but we must do more for the living.  I am aware of similar arguments about the War Memorial in Canberra.  Morally, in my view, there can only be one answer.  ‘Lest we forget’ is fine.  So is ‘Never Again.’  And that applies to the way we look after those who served us – where we are, as we speak, failing so badly.

But the AFL is a business run for profit.  All professional sport now comes down to money – in huge amounts, that just make worse the biggest challenge we now face – the chasm between the ‘haves’ and the ‘have nots.’

If the AFL does something for deserted wives or abandoned children, it does so for business reasons.  In the last generation, directors of public companies have learned that profit is not their only driver – but it is the main driver. 

And when it puts on a show for Anzac Day, it does so for business reasons.  The directors could get into deep trouble if they decided to have a ceremony for the fallen just because it seemed like the right thing to do, or it seemed like a good idea at the time.

Well, that’s all as it may be.  Life is full of contradictions that we have to learn to live with.

But something is different now.  The AFL depends on the gaming industry for money in much the same way that state governments do.  The AFL shows every sign of being in the pocket of the gaming industry.  The AFL has been polluted by living off the earnings of very unattractive people, who learned to hit their targets very young – following the teaching of the Jesuits, Freud, and McDonald’s.  They prey on the young and those who are easy pickings.

We can gauge our slide into decadence by the contempt shown for decency and the law in the way that gaming companies publish warnings about gambling.  Not one person in Australia – not one – could take any of them seriously.  They are spat out faster than political ad authorizations by corporations that have as much respect for law and order as the Mafia does for a prefecture off the cost of Sicily.

And if we are dedicated to sleaze at the footy, why not let brothels in as well?  ‘You know the score.  Stay in control.  Bring your own protection, and bonk safely and securely with Madam.  You know our motto.  Bonk responsibly!’

And what is the score that we all know?  Heads we win.  Tails you lose.  It has to be that way.  For these companies to operate they must take money off people silly enough to go near them.

We have denied free tertiary education to our young; we are denying them the chance to buy their own home; and now we are encouraging the sponsors of our national pride to relieve them of what they have left. 

We as a nation should be ashamed of what we do to our young.  The communities that thrive are those that give back.  And we are not doing that.

Dad’s father, Bill, came back.  Dad was I think born while his dad was over there.  But whatever else Bill was there for, it was not so that a bunch of money-making suits should rake in the dollars from those who can’t afford that kind of game, while their neatly dressed apparatchiks from the Murdoch clan’s Fox purr with a kind of ensainted ecstasy with their splice of rosemary in their lapel under their best Ipana morning TV smiles.

Let me, then, go back to Gallipoli – and Troy. 

There is a precedent for linking games to war.  When Patroclus was killed outside Troy, Achilles stopped sulking and then he killed Hector in the most gruesome way.  (Shakespeare put the boot right into chivalry here.)  The Greeks put on games in honour of Patroclus.  The Iliad ends with the funeral of Hector ‘And so the Trojans buried Hector, breaker of Horses.’ 

But this only comes after one of the most remarkable scenes in our letters.  Priam, the father of Hector, goes to the camp and tent of Achilles to beseech this violent killer to release the mutilated body of Hector, so that it could dealt with according to Trojan custom.  He asks Achilles to remember his own father, and then utters lines like these:

I have done what no man before me has done.

I have kissed the hand of the man who killed my son.

Against a pagan religion that we see as nonsense, this old man finds himself in what we might call a state of grace about eight centuries before the birth of the luminous Nazarene.  Not a god or God in sight.  Just a frail old man doing his best for one he loves, a dead son.  And in so doing, the old man broke the bonds and the ineluctable logic of the vendetta.  In the end, then, people were able to stop being killers, and put behind them those codes that impel men to kill each other. 

Well, it sometimes helps to see our gaudy baubles for what they are by remembering things past.

When her lover Mark Antony dies, Cleopatra almost howls.  (It depends on who you see playing the part – which is not a small one.)

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.

Barry Humphries was a giant too, one who in his way bestrode the world, but as so often happens in this country, the fall of a giant, this time terminally, brings out the pygmies, those who are permanently embittered by their own smallness and mediocrity.

The Melbourne International Comedy Festival is controlled by people too small and bitter to acknowledge someone who did more for their calling than anyone else – no other comedian got even close – here, or in London, or in New York. 

Why are they behaving like those bystanding ratbags who catch a ride on outfits like the IOOC or FIFA?  Because Barry Humphreys offended some people – they say.

Well, if the Festival people had their way, young girls and boys would now be level with men – and you can have two bob each way that that remark would also cause offence in some quarters

When the cockney John Keats died, driven to a ghastly death in Rome in part by the snobbery of bitchy critics, none of whom had one drop of poetry in their blood, and Shelley at last betook himself to weep for his Adonis, he said that those critics were like gnats straining at a camel.  That’s what we see now, and it is one of those flaws in our make-up that Barry Humphries devoted his professional life to exposing.

You would hope that the directors of a comedy festival would know that giving offence to people is inevitable in any comedy – or carnival.  Just ask Charlie Chaplin, Groucho Marx, Spike Milligan – or the sublime John Clarke.  Or any character in Commedia dell’arte. 

They all offer escape from pomp and circumstance, and a breather from bad governance.  And as often as not, someone has to take it down the front.  Just like in the ultimate slapstick – the pie fight.

It’s rather like the ultimate drama – sport (or litigation).  For someone to win, someone must lose – and no-one wants a draw.

As I see it, this country only began emerging from a neurotic dependence on or fear of others off-shore in the ‘70’s.  And to do that, we first had to see ourselves as we are. 

And Barry Humphries led the way, with people like Patrick White, our dramatists, cartoonists and film-makers.  We at last got rid of that chip on our shoulder and stood on our own two feet – even if we still import our head of state from what some used to call the Mother Country.

The people in charge of the Comedy Festival should be ashamed of themselves.

I leave you with more words of the Egyptian Queen of Egypt left to us by our most prolific comedian.

………………. For his bounty,
There was no winter in’t; an autumn ’twas
That grew the more by reaping. His delights
Were dolphin-like; they showed his back above
The element they lived in. In his livery
Walked crowns and crownets; realms and islands were
As plates dropped from his pocket.

Melbourne Comedy Festival – tolerance – comedy – nonsense.

(Pieces for the Melbourne Shakespeare Society assume that readers are very familiar with the plays.)

The tragedy of Macbeth is said to be about ambition.  But without the drive of his wife, Macbeth would not have succumbed.  She is the driver of his spiral into evil and death. 

But she figures in only nine of the twenty-eight scenes of the play.  Here is a summary.

1.5  She gets news of the witches’ forecasts.  She is enraptured – not for herself, but for her husband.  He is not ‘without ambition,’ but he lacks the ‘illness’ that is called for.  She can’t wait to get her hands on him to fire him up.  She asks to lose her womanhood and capacity for remorse that might shake her ‘fell purpose’.  (The Everyman gives ‘savage’ for ‘fell’.  This play is the origin of ‘one fell swoop.’)  She tells him to put ‘this night’s great business’ into her dispatch.  ‘Leave all the rest to me.’

1.6  She greets the king and thanks him for the honours on ‘our house’.  The king says ‘We are your guest tonight.’

1.7  Macbeth vacillates precisely as his wife had forecast.  ‘We still have judgment here…. He’s here in double trust.’  She fires him up with scorn and aspiration in the most shocking language.  He capitulates.

2.2  Theatre does not get more fiery than this.  Had Duncan not resembled her father as he slept, she would have killed him.  Macbeth has done it, but he is a real mess.  ‘Consider it not so deeply’.  Macbeth is on the verge of cracking.  ‘These deeds must not be thought / After these ways; so, it will make us mad.’  She then realises with horror that he has brought the daggers back with him.  She directs him to take them back and smear the grooms.  He cannot bear even the thought of going back.  He knows he will never wash this blood from his hand.  She returns the daggers and tells him that she also now has blood on her hands – but that a ‘little water clears us of this deed.’

2.3  When the murder is discovered, she commits a howler: ‘What, in our house?’.  Macbeth is a model composure (and delivers gorgeous lines echoed by Cleopatra on the death of her lover).  She faints and is carried out.

3.1 Macbeth does not tell his wife he means to kill Banquo and gees up the murderers just as his wife had geed him up.

3.2  Macbeth says a ‘deed of dreadful note’ is needed for Banquo, but refuses to say what.  ‘Be innocent of the knowledge dearest chuck…Things bad begun make strong themselves by ill.’

3.4  The ghost of Banquo makes Macbeth look mad in public – and say things consistent with his being guilty of the murder.  His wife rails at him – ‘Are you a man?  …. This is the very painting of your fear.’  But Macbeth is in another world.  ‘Blood will have blood…I am in blood / Stepped in so far….’  And yet ‘We are but young in deed.’

5.1  She is driven mad by guilt.  ‘Yet who would have thought the old man to have had so much blood in him?  …  Here’s the smell of blood still.  All the perfumes of Arabia will not sweeten this little hand.  Oh, oh, oh!’

Her death, presumably suicide, is off stage.

So, the ups and downs of the hero are traced in detail.  But for his wife, the decline is hardly shown on the stage. 

This playwright is not the one to accuse of sloppy construction.  The focus in on the hero, and his fall is triggered by two interventions.  One is the supernatural – the witches.  The other is the goading of his wife.  The later supernatural event – Banquo’s ghost – is hardly needed to lock in the descent of the hero.

This play comes after Hamlet.  That hero was asked to commit murder.  He paused – for about the length of the play.  Macbeth paused too – but he overcame his misgivings with the help of his wife.  He had absorbed the teaching that conscience does make cowards of us all.

Neither Macbeth nor his wife appreciated the dilemma of those seizing power by violence.  How do you stop someone doing the same to you?  You just keep going.  You must.

The comparison with Hamlet is one way of looking at the play.  The other is the comparison between the hero and his wife.  Both seek to neutralise – or sterilise – their consciences, to stop the access to remorse.  Lady Macbeth does so in hair raising terms.  But while Macbeth succeeds, to the point where he could he lead an SS Death’s Head Aktion, his wife utterly fails.  She simply is not up to it.

If you look at the summary above, you can see the occasions where the tide is changing.  In Act 2.2, the wife is staggered by her husband’s collapse.  She tries to tell him not to reflect so deeply – and even says they may go mad.  The delivery of these lines by Harriet Walter on the Argosy set is magical.  This young Scots woman has a fearful premonition that she is out of her depth.

Then in Act 3, she is listless and disillusioned.  The husband takes full command and does not tell her what he is doing.  She may still be there to try to control him when his ‘fit’ comes upon him, but she is no longer in the driver’s seat – or anywhere near it.  It is now he who says ‘Leave it to me.’

The difference in the two trajectories is one focal point in the play.  Another comes from putting your trust – or faith – in the supernatural. 

Macbeth sees that he was sold a pup.

I pull in resolution, and begin

To doubt the equivocation of the fiend

That lies like truth.  (5.5.42-44)

Frank Kermode (the citation comes from Tanner) referred to Christ’s response to Satan in Paradise Regained.

…that hath been thy craft,

By mixing somewhat true to vent more lyes.

But what have been thy answers, what but dark

Ambiguous and with double sense deluding… (1.432-5)

Well, there you have it – advice from the two greatest writers in our language – some, including me, would say in any language – on how to deal with bullshit from people like Donald Trump. Boris Johnson, and Scott Morrison, mountebanks all.

Shakespeare – Macbeth – ambition – literary criticism.

Journalists are not there to be partisan.  In the Sunday Age, Parnell Palme McGuinness accused members of the press of ‘hysterical partisan thinking’ for thinking that Leeser’s resignation was a disaster for the Liberal Party.  She thinks it was good for the party – ‘it puts it back in its strongest territory: examining ideas rationally and on merit.’

But to reach that position – which in my view verges on the hysterical – the lady also accuses the P M of ‘embracing a partisan approach.’  She says that he has done so by ‘setting up for a referendum on Peter Dutton’s popularity as an easier task than the Voice referendum question, which some may find daunting.’

If that charge were meant seriously, it could be a serious charge of a form of deceit against the P M.  But I cannot take it seriously, because I cannot imagine a more obvious case of a partisan political statement.

Of the kind that pollutes the public life in our commonwealth.

Sunday Age – Parnell Palme McGuinness – partisan reporting.

Dear Editor,

A member of the US Congress, Marjory Taylor Greene, compared Donald Trump to Jesus of Nazareth at Easter.

They have something in common.  Consorting with prostitutes.

But it is not fair to compare Trump to Adolf Hitler.  It is not fair to Hitler.  Hitler fought for his country and paid its taxes.  Trump did neither.

Is there no end to the madness of the United States?

Yours truly

The prospect of imminent death is not concentrating the minds of what is left of the Liberal Party.  People keep talking about the real or traditional ‘values’ of the Liberal Party.  (And then you know it is just a matter of time before you hear the word ‘Menzies’.) 

According to the Compact OED now in front of me, ‘values’ are ‘beliefs about what is right and wrong and what is important’. 

That’s quite a lot.  Especially for the beliefs of a political party.  For an Australian political party, we imagine that the values would in some way have to be labelled ‘Australian’. 

You only have to say that to see how silly it is.  (In the moonshine about the carnage at Gallipoli, some Australians speak of ‘mateship’ – as if the Turks had no mates.)

In beliefs about what is ‘right’ or ‘important’ in our political life, there will be ranges of views.  Two are connected.  Do we want to have more or less government interference in our lives?  Do we trust government, and are we optimistic about its role in our lives? 

One side may be labelled as ‘progressive’ or ‘liberal’.  The other may be labelled as ‘conservative’.  (Terms like ‘left’, ‘right’ or ‘socialist’ are quite useless.) 

In England, the two different approaches were represented in two parties – the Liberal Party and the Conservative Party.

In Australia, the Liberal Party tries to do both.  That is a problem.  What used to be called ‘a broad church’ is now a sprawling, ugly dog’s breakfast that cannot be said to stand for anything.

What ‘value’ does the Liberal Party stand for that the Labor Party does not?  Except a propensity to say ‘NO’ and keep Mum about the alternative?

The one difference between the parties is that at least the Labor Party has a coherent history – which gives it some kind of defined historical purpose.  Its trouble is that that history has links with blue collars.  That history triggers anxiety in the male white-collar descendants of convicts, screws and squatters, especially those raised in English style boys’ own public schools, and contemplating oblivion from the walled security of a city garden, sans dames and chaps who somehow don’t quite fit in. 

Which is pretty much the rest of Australia.

That is the stick of the Liberal Party. What is the carrot? 

Bribes.  That false prophet who preached the end of the Age of Entitlement was speedily banished.  For both anathema and heresy. 

We are the most insecure, government-dependant nation in the history of this planet.  A prime minister whom a friend dubbed ‘the little Sydney conveyancer’ detected what Bertrand Russell saw in us – an irresolvable penchant for mediocrity, which in his own case is defined by a wooden suburban picket fence in the brightest Dulux White. 

That government handed out what the Romans called ‘donatives’.  They are like the reverse of the French don gratuit.  The state must look after the ‘base’ – those who are financially comfortably well off enough to enjoy government sponsored perks on ‘leveraging’ their mortgage or their superannuation tax breaks. 

When sensible and decent people pointed out that these vote-buying bribes had no rational justification, a scream of anguished pain went up louder than that of ‘BALL’ from the Magpie army on a bleak day a long time ago at Windy Hill.

And so, the carrot became the stick again, and another election was lost, and we the people fell into the hands of the kind of oddball who really does believe in miracles in his own life and times. 

And our children were sentenced to longer terms of ultimate homelessness in the complete repudiation of what some idle grifters used to call ‘the Australian dream.’

What is left of the Liberal Party looks to be hostage to two very unattractive groups of people.  The Murdoch press, whose business model – its drive for profit – is predicated on conflict and deceit, and religious fanatics, whose blind faith leads them to the same drivers.  The result is inevitable – people who are fit to represent no one.

What is the role of the Liberal Party in opposition?  That role was defined by a most sagacious English historian of the French Revolution as follows.

…an Englishman …. has been trained to exercise his party spirit in the game called the Party System; and among the rules of that game – not always observed [1929] as they should be – are the obligation to sink personal differences in party loyalties, not to criticise your opponent’s policy unless you have a better one that you are prepared to carry out yourself, and in case of national crisis, to help rather than hinder whatever government may be in power.

Well, we did not need the wisdom of Dr J M Thompson to tell us that the Liberal Party, both state and federal, is not within a bull’s roar of doing its job.  Its members routinely violate each of those principles every day.

A two-party democracy must have two workable parties.  We don’t have that.  The Victorian government has already shown signs of a consequent presidential-style arrogance, and the fear is that the federal government may go the same way.

And it is no consolation – none whatsoever – that no-one – no-one – could make as big a mess of it as the United States of America.

The threat to our system of government is real.  You need only look to the UK and US for the last six years where ratbags unfit for any office have been elected because they had no adequate opposition.  We now have a federal Opposition Leader who is competing with the CEO of Qantas for the position of the most loathed person in Australia.

Et moi?  When I go to join the Wolf in his Valhalla in the Wombat Forest, will I do so as a faithful liege subject of His Majesty King Charles II?

Now that tells you something about Australian values.

Enjoy the coming days – sacred or profane.

Liberal Party – Dutton – role of Opposition parties – Trump – Johnson.

This opera reminds me of Antony and Cleopatra.  The plot is simple, and in this case silly, but the show just keeps going.  On and on.  I took an ageing American from Oxford to see it at Stratford in a full house on a hot night.  Neither of us handled it well.  In Turandot there are phases of Wagnerian repetition, and the term Principessa gets seared in your memory to the point where you are ready to surrender.  And to do that part, some Wagnerian strength helps, but it usually does little for the love interest.

For those of us who are not of the cognoscenti, there are structural problems in Puccini’s big ones.  Madam Butterfly carries the same sense of ordained misery as Othello.  In Tosca, nothing could match the drama of Act II, and the last act is frankly silly.  And in La Bohème, I am ready to pack my bags at the first interval, because the best is done, and it’s all downhill from then on.

Turandot is above all a big show.  Italy in China, and three of the best-known hits of opera.  The big number of the principal (In questa reggia) is where Wagnerian strength is required – Clare-Louise at Oxford had a theory that this broke the voice of Callas.  (But that was just one point of difference between us.)  Liu has the sweeter song – it was a specialty of Tebaldi – that leads to Non piangere, Liu, which always features on highlights discs of Björling et al.  And everyone knows the challenge awaiting the tenor toward the end – especially since the extravaganza of the Three Tenors.

It is one of the few operas now that I prefer to see on the stage – because it has to be a big show.  I saw the AO do it perfectly in both Sydney and Melbourne about thirty years ago.  It was choreographed by Graeme Murphy, and that is how it should be – like South Pacific with the volume right up, and all the bells and whistles.

And that’s what you get with the new release by Pappano with what its promoters and the press are pleased to call an ‘all-star cast’.  The two leading ladies are up for it, and the tenor is Jonas Kaufman, who is widely seen and heard as the best about currently on the scene.  What you get is a feast of sound and light that tested the Marantz – and the neighbours.  Toscanini, and those who followed him, would have been appalled, I think.

I saw and heard Kaufman do a so-so opera in concert at Melbourne a few years ago.  Kaufman turned up to play, as they say in footy, and I was not the only person in the audience to gasp on occasions.  Here his voice sounds fuller and more baritonal – and loud.  At times he reminded me of the good old days with Del Monaco and Corelli.  But as sportsmen say, he leaves nothing on the field.  Kaufman took one high C four times in the studio.  This is the Full Monty.

So, if you want a recording with the lot, this is one to get.  But, according to Gramaphone, which devoted a cover story to the production, the recording process took a number of days of six or seven hours’ singing, with Covid spacing, and a tight schedule.  Sondra Radvanovsky, who sounds like a team player, said she had to live like a nun, and she did not even get see the Trevi Fountain.

And you wonder when sound management and engineering, and cutting and splicing, and veneering, collapses into the lurking dragon of A1.  If Chatbot, or whatever it is, can whip up a sonnet in the style of Shakespeare in seconds, how long will it be before we get Di Stefano doing Amor te vieta? 

My Marantz has a soft spot for those old monos of the ‘50’s, where you can hear feet on the boards, and just the occasional cough in the audience.  Of late, I have been thrashing Furtwangler on Beethoven in the fifties, and for me nothing else comes close, even if some old guard classicists might get miffed.

Opera – Pappano – Kaufman – AO.

The start of the AFL season coincided with the commencement of new civil claims brought by former players seeking compensation for injuries suffered while they were playing – and three high profile suspensions for dangerous play. 

The word ‘bump’ is silly in this context.  At least one suspension came from a shoulder charge when a player launched himself into a human missile with both feet off the ground.  Anyone who doubts how serious the issue is has not read the appalling stories of illness and distress of former players often leading to suicide.

In all the talk, I have not heard it suggested that the AFL think of adopting the rules of rugby on tackling.  According to the version in front of me, those rules include the following:

10.4 (g) Dangerous charging.  A player must not charge or knock down an opponent carrying the ball without trying to grasp that player.

The referee could call ‘low arms’ or ‘no arms’.  (This was not the case in NRL, until recently, I think.)  Additionally, there are general prohibitions on tackling someone without the ball, in the air, or late, or dangerously. 

Any of these is red card territory – off for the match, with no replacement.  Mid-air collisions are viewed very strictly.  ‘Foul play’ includes ‘unfair play’ or anything ‘against the spirit and letter of the Laws of the Game.’  (Lawyers will see a comparison with Equity.)

In other words, rugby is a game of playing football for ordinary decent people.  Requiring a tackler to make the ball central to the tackle is obviously central to that proposition.

The AFL then has a dilemma.  If it goes that way, will it follow rugby when they ban tackling above the waste?  But if they don’t tighten up on safety, they are even more exposed legally for not adopting safeguards used elsewhere.  And in a code that is played around the world and followed by many more millions than is the case with the AFL.

The AFL can’t pussyfoot any longer.  Just ask the man who took the Mark of the Century whether he would not give back every cent of $1,400,000 if he could get his life back, or what was going through the mind of Danny ‘Spud’ Frawley when he drove his car into a tree.

Of late, the Australian middle class – and not many opt for inclusion in the other two classes – has become more adapted to communal living in what we used to call ‘flats’ than used to be the case.  Intense urban development has led to large blocks of units that have ‘common property’ and human interactions that have to be managed. 

The law was changed to allow for ‘strata titles’ to individual units, and the incorporation of a body to manage, if that’s the term, the whole shebang.  That is the ‘body corporate,’ now styled ‘owners corporation’ (without the apostrophe), and there is usually a managing agent appointed to do the managing.  It normally reports to a committee of apartment owners.

What could be simpler?

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.

The managers have to be licenced by a government office.  They are represented by the Strata Community Association.  Its website says:

Strata Community Association (SCA) is the peak body for Industry Managers, Lot Owners, Tenants and Stakeholders living in or affected by Strata Title, Body Corporate, Community Title and Owners Corporations.

SCA proudly fulfils the dual roles of a professional institute and consumer advocate.  SCA has in excess of 3,300 members who help oversee, advise or manage a combined property portfolio with an estimated replacement value of over $1.2 trillion.

So, this body, SCA, says that it is the peak body not only for managers, but for owners and tenants.  And it is proud to be both a ‘professional institute’ – only God knows what that might mean – and a ‘consumer advocate.’ 

Insofar as they see themselves as my advocate, and holding the same office for other owners, do they not see a conflict of interest as wide and deep as the Grand Canyon?  It would be like the AMA saying it represents both doctors and patients.  Or Centrelink saying it represents both the Government and the sore afflicted.  Or Scott Morrison and Stuart Robert saying that in the Robodebt scheme they showed equal fealty to God and Mammon on those mornings when they prayed together at Parliament House.

(I shall return later to the phrase ‘professional institute.’)

The SCA says one in four Victorians are ‘living in or affected by’ Owners’ Corporations.  That means the managing agents that belong to the SCA play a large part in Victorians’ lives.  They are people of power – or, as they are wont to say now, ‘influence.’  They are probably in a position to have more influence on how people live in and around their homes than the local government.  This is important when we come to look at how responsible to owners and tenants they are under the terms of their appointment as managers.

Nor is the SCA to be found wanting in pride.  It says its members ‘empower’ lot owners and ensure compliance with laws.  ‘The Code of Professional Conduct raises the bar to maintain ethical standards and members are held accountable through a robust complaints process.  Members benefit from the Standard Contract of Appointment.’

You bet they bloody do – and it’s tough banana for the rest of us.

Commercial lawyers looking at this contract for the first time might think they have landed on Mars – or Beijing, Moscow, or downtown Tbilisi.  They would see the contract as designed to achieve two objects – to allow the manager to charge like a wounded bull, and to leave the manager accountable for nothing.  It is one of the most blatantly loaded contracts I have seen in a life in the law.

We can deal quickly with the fees.  There is a flat fee and extras for specific items, some of which are to be charged on a time basis.  It is the kind of robotic scale that can lead to accounting of such a creative nature that it could only subsist between parties in a relationship of absolute trust.  That does not often happen in dealings in real estate between owners and agents.  The prospects of a corporate manager agreeing to pay its staff on a similar basis is one of the following – nil, nought, zero, and zilch.

What then are the obligations of the manager?  In what sense is the manager accountable to owners and tenants?  What remedies do the owners have if the manager breaks the contract – or even just refuses to perform its part?

And you need to remember that the contract is only with the body corporate.  Lot owners or occupiers cannot go to law to enforce the management contract.

Clause 7 is in U S style verbiage.

7.1 To the extent permitted by law the Owners Corporation hereby releases and indemnifies the Manager and holds the Manager harmless from and against all actions, omissions, claims, demands, losses, costs, damages and expenses (including without limitation reasonable legal costs on a solicitor and own client basis) (“the loss”) in relation to or arising directly or indirectly out of the performance or non performance by the Manager of any services or the exercise of its functions and powers pursuant to this Appointment or otherwise from any cause of action including negligence and including without limitation:- 7.1.1. defects or dangers arising in or out of the Owners Corporation Property; 7.1.2. arising from the failure of the Owners Corporation to supply adequate information and advice or direction when requesting work to be performed by the Manager; 7.1.3. arising from goods or services provided by or to third parties at the request of the Manager provided that such request was made in accordance with the provisions of this Appointment; 7.1.4. arising from the handling or storage of goods, products or chemicals; 7.1.5. resulting in death, bodily injury, damage to property or economic loss suffered by any person or persons whatsoever including members and occupiers of the property or part thereof; except to the extent that such loss is caused by or contributed to by the Manager’s dishonesty or fraud. 7.2 If the Manager breaches its obligations in relation to the services and the Owners Corporation has contributed to the Manager’s breach, the Owners Corporation agrees to indemnify the Manager.

Before looking at that, what are the kinds of remedies that the law can usually offer to a party when the other party breaks their promise?

There are four channels.  The contract may allow a degree of self-help, by allowing, say, a lender to sell mortgaged property or appoint a receiver over a company.  If the breach is such that the party in breach shows they will not go on with the contract, the other party can terminate the agreement.  In some cases – that would almost never apply here – the innocent party could ask the court to order the party in breach to perform the contract.  Or the innocent party can pursue the contract breaker in a claim for damages. 

The last is by far the most common avenue that is pursued.  You can put to one side court orders or contractual stipulations for self-help in the present context.

What clause 7 is intended to do, ‘to the extent permitted by law’ (that is, I think, unless the court otherwise orders), is to take away from the owners the last remedy – and so, effectively leave it with just the right to sack the manager.  And no right to claim monetary compensation – no matter how gross the breach.

The manager is saying ‘You promise not to sue me for breach of contract or negligence – you must show dishonesty or fraud in order to get compensation from me’. 

The manager hardly needed that carve-out or proviso.  If you suffer loss because of the fraud or dishonesty of someone, your lawyer will advise you to sue the bastards – if they are worth suing.  You didn’t need a contract to tell you that you are free to do so.

Before we look at the extent to which the law might permit such a promise to stand, let us stand back a little, and consider the setting.

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?

Well, then, what does the relevant statute (Owners Corporations Act, 2006)have to say that bears on this issue?

For obvious reasons, the act says that a manager must hold PI insurance – s 119(5) and s 185A.  If clause 7 means that a manager can only be sued for fraud or dishonesty, that object of the act will be entirely frustrated – no PI policy extends to fraud or dishonesty.  (I doubt whether an attempt to do that would be lawful.)  Most managers will be shells.  Their capital will be $2 – not enough to buy one cigarette.  The act was meant to ensure that managers could be held to account in money terms in claims for compensation for breach of the management agreement.  The result is that the other party has no effective remedy for breach of contract by the manager – at least not one that gives them financial compensation.

The act (s 122 (1) (b)) says a manager ‘must exercise due care and diligence in the performance of’ its functions.  What then is the remedy for breach of this statutory duty if clause 7 is left intact and enforced according to its terms?  Can parties effectively contract out of it?

Then up pops something else in the act – which is as jumbled in its terms as the contract.  The act (ss 162 and 165) says VCAT can determine a dispute about whether a term of the contract of appointment of the agent is fair – and says VCAT can vary any term of the contract – or declare it to be void.  

The first provision – s 162 (d) – would, in the language of Kant, appear to presuppose that terms of the contract should be fair.  But so far as I have seen, the phrase just falls out, pat.  (My computer is not telling me that the term appears before in this act, and I see no link to the Australian Consumer Law).

And given that the act (s 122 (1) (a)) says that the agent must act honestly and in good faith, the court or tribunal might be left to ponder the distinction between dishonesty, bad faith, unfairness, and – as we are about to see – unconscionable conduct. 

And the structure of s 162 (d) may give rise to an issue of onus – is it up to the manager to show that the term is fair, or the body corporate to show that it is unfair? 

All of which should be about as fruitful as Medieval Schoolmen asking how many angels can dance on the point of a needle.

Well, then, to what extent will the law permit the manager to rely on clause 7 to defeat a claim by the owners’ corporation for damages for breach of contract?  (I may here say that if a court found that the manager owed a duty of care to the lot owners, clause 7 would not protect it.  You cannot contract out of a liability owed to a party with whom you have no contract.)

In my view, it is more likely than not that the court, or VCAT, would hold that this exemption clause should not be enforceable at all.  The court could so rule on the basis that the clause is unconscionable within the terms of the consumer laws, if not the general law, aided in the case of VCAT by its power to find that a clause is unfair.  

I put to one side the chance that a court might hold that the clause is unenforceable at common law because its object and effect is to negate an essential part of the law governing the conduct of managers.  I also put to one side the argument that if this clause is given literal effect, the consideration moving from the manager is illusory, so that there is no contract at all (on which point lawyers might look at MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125).  The contract may after all be described as the contract you have when you don’t want a contract.

I say that I think it more likely than not that a court would strike down this clause under the consumer laws – because what use are they if this clause can be enforced?

In a contract for the supply of services, is it fair for the supplier to put forward a contract in standard form, provided by its trade representative, that has the effect:

This form of contract provides a term, and we hope that the law allows this term, that you will not be able to sue us for damages if we breach the contract.  It is up to you to inquire what prospects we might have of achieving that result if you agree to this term in the contract.

But, as usual in the law, there is no certainty in that opinion – it is a prediction that is yet to be fulfilled.  In the meantime, the game will go on with the ball up in the air.  And someone may have to part with a fortune to bell the cat.

This is dreadful for bodies corporate and lot owners – which is to say, about one quarter, according to SCA, of people in Victoria.  Who is to say that their home is not built on juristic sand?

I referred earlier to the phrase ‘professional institute’.  Whatever else you might say about clause 7, it is not one that would be put forward by someone practising a profession.  Intrinsic to the notion of a profession is a sense of vocation or calling; a body of learning; and a collegiate commitment to a professional ethic which ultimately puts the public interest above the profit motive.

As it happens, the Victorian AAT, the predecessor of VCAT, had something to say about this in 1985.  It ruled that nursing was a ‘profession’.  It referred to the Shorter English Dictionary.  It said that a nurse is relevantly ‘a person, usually a woman, who attends or waits upon the sick; now especially one trained for this purpose’ and that a profession is relevantly ‘a vocation in which a professed knowledge of some department of learning is used in its application to the affairs of others, or in the practice of an art founded upon it; applied especially to the three learned profession of divinity, law and medicine…’(War Nurses Memorial Centre v Comptroller of Stamps (1985) I VAR 120, 127.)  A glance at the Macquarie Dictionary shows that meaning still obtains.

Some might say that this is just a case of a lawyer being snooty – as they are wont to be.  And it is easy to leer and jeer about the fees charged by silks and surgeons.  But even the most fervent members of the SCA would not seek to compare their calling to that of our nurses, and the Australian impulse to drag down doctors and lawyers tends to evaporate when people have their life, health, liberty, wealth, or reputation on the line.

And at the risk of circularity, no professional would seek to put in their retainer an exclusion clause like clause 7 of the SCA standard form of retainer.

This form of contract proffered by managers of strata title blocks looks to me to be an insult to the people to whom it is put – a substantial part of the population of Victoria.  And it’s about time they were called out. 

But I fear that the consumers – the body corporates and owners and tenants – will not get anywhere until they form an association which can stand up to SCA and its members, and at least give a semblance of a level playing field and equality of bargaining power.

And this is all terrible for committees.  If the manager can’t be relied on, residents will turn to the committees, and the national penchant for buck passing and denial of responsibility, will go unchecked.  The committees will be like MPs called on to fix a mess left by the public servants – agitated and unhappy – for cause.

In the meantime, the issue is of sufficient public importance to warrant the close attention of governments, both state and federal.

Finally, the version of the contract before me says that it is ‘recommended’ by SCA and ‘approved’ by CAV.  The last is very interesting and we await the versions of events from SCA and CAV.  They are not likely to be in line.

Strata titles – owners corporations – managing agent – body corporate – exemption clauses.

Assume that a bank teller at JP Morgon gets paid $50,000 a year.  Mr J P Dimon gets paid $30,000,000.  That is – 600 times the pay of the teller. 

This, we are told, is the free market at work.  But the free market stops the moment Mr Dimon or his like find their wealth imperilled.  Governments – you and I – must act, and the free-market ideology goes clean out the window.

In the meantime, what are we looking at apart from madness, greed and what looks like extortion?

Assume that Mr Dimon works five days a week for 48 weeks, a total of 240 days – that is a daily rate of $125,000.

For which Mr Dimon does not subscribe one cent of capital or assume one dollar of risk.

And I assume it would be grotesquely impolite to inquire if he pays much tax.

Well, the wealth of the world consists of promises.  I work for you and you pay me.  I buy your car and I pay you.  I put money in the bank and take it out – possibly with interest.  The bank lends me money and I certainly pay interest to it.  If it fails, I expect my government to see that I suffer no loss as a depositor – I may have to take my chances as a shareholder.  (The Swiss just reversed that priority with Credit Suisse – some say they did not want to upset a big Saudi shareholder.)

All of those relationships turn on trust or confidence – or what some might call ‘credit.’  The system would seize up instantly if people had to resort to law to enforce the relevant promises.

It follows that for the system to work, people must have confidence in – they must give credit to – banks and financial and government institutions.

You may have confidence in a banking system that sees the boss get paid 600 times what a teller gets, but I do not.  He earns more in a day than the teller does in two years.  Absurd or insane are among the more polite epithets.

And people who complain about surgeons’ fees might look at the comparison.  Mr Dimon is not a member of a profession.  Intrinsic to the notion of a profession is a sense of vocation or calling; a body of learning; and a collegiate commitment to a professional ethic which ultimately puts the public interest above the profit motive.

The embrace of public decency in big corporates has gone some way in the last generation, and some of it is real – but it will never bridge that gap. 

Indeed, the bastion of capitalism is the home of the ideologues who say that trading corporations are there to make money – and that’s that.  It is then heretical to talk about the public interest.  Just as it would be inane to inquire after the tertiary achievements or community contributions of the boss.  Mr Dimon is there to make money, and that’s all you need to know.

But some truths remain.  What separates us from the lions and tigers is a shared underlay of sense, fairness and tolerance – including a sense of proportion, or restraint.  We need all those qualities to have confidence in the way we do business and govern ourselves. 

Well, one royal commission punched a mighty hole in our confidence in business.  Now another is punching a bigger hole in our confidence in government. 

What each has done is to justify our loss of confidence, and show, in unsettling detail, that too many people are getting paid far too much for doing far too little, and that even more people simply don’t know what they are doing – including company chairs and government ministers.

What we all saw in each was tears in the fabric as outrageous as the paycheque of Mr Dimon.

And you don’t have to have followed the Melbourne Football Club for half a century to know that once you lose confidence in something close, it takes a bloody long time to get it back.

Capitalism – free market – equality – J Dimon – J P Morgon – incomes of bankers.