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.

History, as the word suggests, is a story – about us.  We want to know what we are about, and to find out we look at what we have done.  To some we look like Hottentots dancing around the rim of a volcano.  Sometimes we go off course and fall in – and all Hell breaks loose.

Just that happened a lot during the events we label the French Revolution.  Vast libraries have been written to describe it.  It is one thing to put together a narrative or analysis.  It is altogether different to have the art that conveys an image and an effect beyond words.  Not many have that gift.  Tacitus, Gibbon, Ranke and Macaulay had it. 

So did Carlyle, and he applied it in The French Revolution in a manner that defies imitation or repetition.  A tutor at Cambridge said I should treat it like a poem.  I like the analogy of opera – where the plots are often over the top.  Phrases and images of Carlyle stay with me like parts of Mozart or Verdi.

It is not silly for me to say that I got that kind of electric charge from readingAftermath: Life in the Fallout of the Third Reich by Harald Jahner.  The author paints a picture of events in Germany in the immediate aftermath of the most evil and destructive war in the history of mankind.  It is a colossal achievement which commanded my intellectual and moral assent from start to end.

Before looking at some of the insights, I will set out how Carlyle saw the horrors of the French around 1793 prefigure the horrors of the Germans around 1943.

One other thing, or rather two other things, we will still mention, and no more:  the blond perukes; the Tannery at Meudon.  Great talkers of these Perruques Blondes: O reader, they are made from the Heads of Guillotined Women; the locks of a Duchess, in this way, may come to cover the scalp of a cordwainer, her blonde German Frankism his black Gaelic poll, if it be bald.  Or they may be work affectionately, as relics, rendering one suspect?  Citizens use them, not without mockery; of a rather cannibal sort.…. Still deeper into one’s heart goes that Tannery at Meudon; ‘There was a tannery of Human Skins; such of the Guillotine as seem worthy flaying: of which perfectly good wash-leather was made; for bleaches and other uses.  The skin of the men, he remarks, was superior in toughness (consistance) and quality of shamoy; that of the women was good for almost nothing, being so soft in texture ….’ Alas, then, is man’s civilisation only a wrappage, through which the savage nature in him can still burst, infernal as ever?  Nature still makes him: and has an Infernal in her as well as a Celestial.’

The first task was to clear the rubble.  That is beyond description.  When I was last in Berlin, about six years ago, there were still I think weedy spaces on Friedrichstrasse.

The suffering of European Jewry may have started at Calais, but it got worse as you moved east from the Rhine.  Many Jews in Poland chose to go to Germany – they regarded Bavaria as American.  In turn, Orthodox Jews from the East distrusted ‘worldly’ Jews.  They accused them of betraying Judaism by wanting to stay in the land of their murderers.

Infighting was general.  German regions rediscovered their tribal background.  ‘Volk’ was bad – as was ‘ein volk.’

Taxes were levied to spread losses.  Some had to pay half of what they owned so that those who had nothing could survive.  This on top of the enforced association of unloved ethnic groups made a new nationalism out of the question.  And imagine any western government trying on that kind of tax now.

The Marching Song of 1945 was sung in mordant cabaret staccato by Ursula Herking.  They marched on –

Because our heads, because our heads

Are still solidly on our necks.

There was a frenzied uptake in dancing.  People just lived for the moment.  People were ‘unimaginably sociable.’  The rhythm was pure jazz.  The Nazis had forbidden so much.  There was an excess of freedom, and people coming out of jails feel lost.

Cologne – what was left of it – put on its first Carnival in 1946 under the motto – ‘We’re back and we are doing what we can.’  Only 40,000 residents were left out of 770,000.  There was a feeling of joyous relief of not having as yet been stripped of ‘the sweet habit of existence.’  It was like surviving lethal cancer.

Those men who came back were not recognisable and so often beyond repair.  Men lingered outside too scared to go in.  Finally, one little boy said ‘Look Mum – it’s Dad.’

The freedom of the Americans dazzled the locals – how was it possible to win a war without constantly clicking your heels?

Venereal disease was everywhere.  ‘Veronika Dankeschon.’  Against all odds, and military orders, 170,000 intermarried by 1988.  People write songs about that sort of stuff.

The black market made the currency useless.  Then in 1948, it was stabilised, and the economic miracle began.  People rediscovered the old truth – ‘half of economics is psychology.’ 

Then came the Berlin airlift and Berlin, the most reviled city on earth – which many sane decent people had wanted to annihilate in 1945 – became ‘the frontline city of the free world.’  The USSR brought misery to the East, but was there at the start of the triumph of the West.

The American re-education program was a great success.  The exploits of the American Hans Hase – in his tailor-made uniform – are worth a book in themselves –during and after his time in Germany.  The Soviets said that fascism was terrorism of the working class!  The Hungarian born Hase said ‘I was unusually attractive, and I didn’t lack qualities of the heart.’  He married six times – including three of the wealthiest women in the world.  How could mere communism cope with that?  The Combine, as Ken Kesey may have said, got him.  ‘You have gone native.’

There is a chapter on repression.  The Germans could not come to grips with mass murder – and their part in it.  Who can? They saw themselves as victims.  This would lead to a grizzly generational backlash which peaked in the unease of 1968.  ‘Let’s catch up on what was missed in 1945.’ 

Back then, the Germans loved Chaplin, but they were not ready for The Great Dictator.’  On the repression, the author says: ‘The collective agreement of most Germans to count themselves among Hitler’s victims amounts to an intolerable insolence…. The conviction that one had been Hitler’s victim was the precondition for being able to shed all loyalty to the fallen regime without feeling dishonourable, cowardly or opportunistic.’

The damage to the psyche would take more than one generation to heal.  When the most evil regime in the history of mankind was in its death throes, Goebbels – who with Hitler and Himmler cheated the hangman – decreed a general annihilation after the manner of the favourite Wagner opera of his Führer –

Hatred is our commandment and revenge our battle cry.  The Werewolf is judge and jury and decides over life and death.

That kind of evil is beyond words.  We are left, like Joseph Conrad in The Heart of Darkness, simply with the ‘horror.’

There is then left the comparison with the experience of Japan, and more importantly, the comparison with the Great War.  Then, the Allies did not heed warnings from within and did not finish the job of destruction, but treated the defeated with an arrogant cruelty.  Keynes and Hitler then set out word for word how those mistakes would lead to the next war.

Because of the cruelty of Hirohito and Hitler, their nations finally surrendered unconditionally when there was nothing left.  They had betrayed and destroyed their own nations.  This time, the Allies knew about the need for reconstruction.  It would tart to say the two nations have been model citizens since.  But they have.  And, it has taken someone assessed to be as evil as Hitler, but with the bomb in his hands, to get Germany fully to rearm – with the blessings of their allies.

If you go to YouTube, you can get Ursula Herking singing the marching song from 1945, the year I was born.  Like Edith Piaf, she has a gravitational pull that is universal – again like Lili Marlene. 

But for some reason, when I listen to it, I think of a moment at the darkest part of the war.  Many did not trust Churchill, and some were ready to deal with Hitler.  Churchill opened a meeting of the War Cabinet to the full Cabinet.  Here was a gathering of the political elders of the nation that had given the world the model of parliamentary democracy.  They were desperate for a leader, and after Churchill spoke, he was surprised by the warmth and eagerness that they grabbed him with.  In the course of resolving the issue, Churchill said:

‘We shall go on and we shall fight it out, here or elsewhere, and if this long island story of ours is to end at last, let it end only when each one of us lies choking in his own blood upon the ground.’

Churchill would of course echo those remarks in his most famous speech to parliament.  God only knows what may have happened if England had not had Churchill.  As far as I know, we might be having this discussion in German, and my Jewish friends might not be here.

That’s why we need history, and why this book means so much.

Carlyle may or may not have been mad himself – who is not at times? – but he may have the last word.

What, then, is this Thing called La Révolution, which, like an Angel of Death, hangs over France, noyading [drowning], fusillading, fighting, gun-boring, tanning human skins? …It is the Madness that dwells in the hearts of men.  In this man, it is, and in that man; as a rage, or as a terror, it is in all men.  Invisible, impalpable; and yet no black Azrael, with wings spread over half a continent, with sword sweeping from sea to sea, could be truer reality. 

History – Germany after 1945 – evil – the French Revolution – building a nation – war and peace.

There were plenty of dud ministers in the Robodebt scandal.  Two of the worst were Stuart Robert and Scott Morrison.  Each is as thick as two planks, and they both say they prayed together.  In parliament.  To the God of Hillsong.

Last week Andrew Wilkie, MP dumped on Hillsong.  Their own documents.  The press says he did it under parliamentary privilege.  Well, Hillsong has not said anything he said was untrue.

But Hillsong has announced an independent inquiry and 153 ‘voluntary staff redundancies’ in the last year, saving $9.47M.  It has also changed its policy on ‘gifts’.

The Global Senior Pastor, Phil Dooley, said ‘we want the vast majority of our staff to be front facing, focused on people and the needed and necessary work of face-to-face ministry.’

Dooley said he was disappointed that Wilkie used parliamentary privilege and that Wilkie had been un-Australian in not speaking to them first.

Here is Hillsong on Fabulous Phil.

A visionary leader and life-long learner, Phil believes that every person has a unique, God-given purpose and can positively impact their spheres of influence in a great and enduring way.  Together with his wife Lucinda, he is Interim Global Senior Pastor for Hillsong Church, as well as Lead Pastor for Hillsong Church Africa.  Phil is passionate about wholeness, wellbeing, growth and development in all areas of church life, as well as in his own life.  Having started off as a youth pastor, he remains committed to raising up new leaders and seeing the next generation thrive, and step into all God has called them to.  Phil is an engaging and empathetic communicator, skilled at applying biblical wisdom in practical ways to the highs, lows and challenges of everyday life.  He loves to connect with people and to celebrate others and witness their lives transformed and made fruitful by the grace and love of Jesus.  His desire is to keep growing throughout all the years of his life and to invest in others doing the same.  He and Lucinda have three children, Abbey, Bella and Zac, and two dogs, Spencer and Stanley.  Phil enjoys the discipline and routine of a morning workout followed by a swim in the ocean and reading his One-year Bible at his favourite local café. He loves to draw people in and create community wherever he finds himself.

He looks like he could do with a decent haircut and a wash.  Check him out.  Modelled on Harpo Marx.  More volume, but not as bright.

Hang down your head Phil Dooley,

Hang down your head and cry.

But the Fabulous One is forgiving.

It kind of feels like being king-hit from behind.  But Jesus loves you Mr Wilkie…. Mr Wilkie, you’re still welcome to attend any of our services.

OK.  Playtime is over. 

Bullshit is par for the course.  But to invoke Jesus of Nazareth in a petty political catfight is not just offensive – it is downright despicable.

And anyone who swallows any of this tripe should not be permitted within a fifty-mile radius of Parliament House, Canberra.

Morrison – Robert – Dooley.

The capacity of a people to govern itself fairly, and for its people to look after themselves and have their rights protected against their own government, depends in part on their laws.  But more importantly, it depends on the history of that people, and their state of mind in formulating, implementing, and cherishing those laws.

Events in this century lead to misgivings about the fluid, or perhaps insensible, basis of our constitutional settlement and our embrace of the rule of law. 

Does it all really come down to a state of mind?

We in Australia inherited the relevant history, legal structure, and state of mind from the English.  By and large, we are content with it.

Nations like Russia, Iran and China have never known it.  Nor has almost every other nation outside western Europe and the nations raised in the British Empire.

The U S is problematic.  When I look at the way they diverged from the British model, then, with the exception of their adherence to the jury system, I think they are worse off than us.  And therefore, more at risk of going under.

Take just three instances.  They did not require their head of the executive government to be a member of and answerable to Congress.  In my view, Trump could not have got anywhere with us.  They were not content to leave the English Bill of Rights on the statute book – they had to put it in the ark of their covenant.  They then gave unsackable and unelected people the power to run over government and make laws on the run – and along party lines.  They declined to make voting compulsory – like jury service.  That has led to wanton corruption and abuse of power.

In each case, they did so for fine ideological motives.  That was never the English way.  They always preferred hard evidence from the past to warm prognoses based on theory.  And in each case, they came up with a response that was in our eyes bullshit.

In short, they don’t have the right state of mind. 

And since the attack on the Capitol, and the surrender of the Republican Party, they look very vulnerable.

The English flirtation with ideology under the mantle of ‘sovereignty’ allowed them to be seduced by a mountebank from Eton.  But he never achieved the demonic or demotic pull of Trump, and after an interlude from the Goons Show, Tory elders restored a form of order.

The institutional failing was that a defeated and charmless government was suffered to remain in office.

Now there is another nation with the chemicals in the test tube.  Does Israel have the right state of mind to withstand a pact of evil formed by a gruesomely corrupt leader and religious fanatics who are unsafe at any speed?

My guess is that the nation called Israel will survive.  But its history with this kind of government is that of a moment compared to that of the English.  Its constitutional basis is even more shaky.  And since 1689, the English have had no trouble – at least in England – with God or his ministers.

Two things may then give us pause. 

A lot of our dispensation rests on convention.  What can be grown through use can be lost by misuse.  I had feared we had lost the Westminster System.  The question is whether we can get it back after the appalling revelations of the Robodebt Royal Commission.

Then, so far as I can see, the English doctrine of the supremacy of parliament may make it difficult, at least in the absence of a valid European legal proscription, to make legally impossible a move by the government against the judges of the kind presently attempted in Israel.

I simply don’t know – but the questions highlight the evanescence of convention.  In most other places of the world, the question is – who can command the armed forces and the police?

But some things remain constant.  The Israeli Channel Two commentator Ehud Yaari says that Netanyahu was so desperate to beat the rap that he was ‘willing to make unbelievable concession’ to the right fringe.  Boy, that sounds just like Speaker Kevin McCarthy.

And while we here in Australia have made many errors and done some bad wrongs, we have not come within a bull’s roar of Marjorie Taylor Greene.

And any people that can suffer its children to go unto her and Tucker Carlson cannot be said to have the right state of mind.

Constitutional law – England, U S, Australia – rule of law -Westminster System – Robodebt Royal Commission.

Even by Australian standards, Stuart Robert is a new low in our politics.  As the phrase goes, he just does not get it.  And his military background, misplaced loyalty, and limited intelligence, leave him prey to recycled tripe that in his warped mind leaves him free of any responsibility. 

Being ‘responsible’ is not a notion that looms large with a man raised as a minion to the armed services or as a soldier in the army of the God he prayed to in Parliament House with his friend and leader, Scott Morrison – another man of low intelligence with no idea of what it is to be ‘responsible.’

Robert’s performance yesterday before the Royal Commission was downright scary.  It was bad enough to call to mind the image of a bland mediocrity in another hemisphere in another time going to work each day with death in his briefcase.

Challenged by Commissioner Catherine Holmes about why he then continued to misrepresent the scheme publicly in media interviews when he knew it to be unlawful, Mr Robert said he was being a “dutiful cabinet minister” despite having “massive personal misgivings”.

“It doesn’t mean you have to misrepresent the figures though?” Commissioner Holmes asked.

“I had a massive personal misgiving, yes, but I am still a cabinet minister,” Mr Robert said.

“That’s what we do, ma’am.”

Pressed if this meant “misrepresent things to the Australian public”, Mr Robert said this happened often in the tax jurisdiction.

Mr Robert had previously been an assistant treasurer with responsibility for tax.

“Having come from tax, tax says black is white all the time. I’ve watched government do extraordinary things,” Mr Robert said.

That may not be moral insanity – but there is a vacuum where the conscience should sit.  A poor apology for a man allows a false sense of loyalty or duty – at least according to his evidence – to displace his humanity. 

This was a deformed version of the ‘superior orders’ response. 

And it recalls some observations about the ‘banality of evil’, and the conduct of a most mediocre man who looked ‘terribly and terrifyingly normal.’

Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all.  And this diligence in itself was in no way criminal; he certainly would never have murdered his superior in order to inherit his post.  He merely, to put the matter colloquially, never realised what he was doing…. It was sheer thoughtlessness….

The polite term for Robert is ‘galah’ – a galah who believes, or at least who is willing to assert, that in order to be a federal Minister of the Crown, you must be ready to take a hit for the team and tell the world a barefaced lie.

And he did not have to get this from his leader, the man he prayed with.  No, no, no – for them it was just business as usual.

Onward Christian Soldiers,

Marching as to war….

Robodebt – ministerial responsibility – Robert – Scott Morrison – Arendt.

Th’ oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office, and the spurns
That patient merit of th’ unworthy takes….

According to the press, the Judicial Commission of Victoria has stood down a magistrate pending an investigation.  The facts alleged were not disclosed, but the Commission says in a press release that the magistrate was stood down because they thought that otherwise public confidence in the magistrate’s ‘impartiality, independence or integrity’ might be impaired.

The press says that the magistrate has a history.  He had said that a rape victim complaining the next day had shown ‘buyer’s remorse.’  The Commission found this remark to be ‘highly inappropriate and offensive.’  It recommended that he be counselled by the Chief Magistrate.

The act

Since I had not heard of this body, I looked up the Judicial Commission of Victoria Act, 2016.

The act is very odd.  It may not have been written by people with long experience of conducting trials or preparing for hearings.  It says its purpose is to provide for investigations into judicial officers.  Yes – but to what end?  It says that people may complain about the ‘conduct or capacity’ of judicial officers and that the Commission must deal with the complaint.  It then goes on to describe facets of the process and investigation and the results.

But nowhere do I see the criteria by which the relevant ‘conduct’ or ‘capacity’ is to be assessed. 

The act is structured a la mode – tortured Snakes and Ladders.  Critical to the powers of the Commission is a finding of ‘proven misbehaviour’ (s 13).  It does not say what ‘misbehaviour’ is.  It is bad behaviour.  Nor does the act say by what standard such behaviour must be proved.  This may be because as is customary, the act (s 52) provides that an investigating panel is bound by the rules of natural justice but not by the rules of evidence. 

Well, the rules of evidence are not hard to find or apply, and most of them relate to fairness and logic – both of which are binding on the Commission. 

If the Commission refers a matter to the head of the relevant court, the act (s 19) says it must set out its findings of fact and ‘its assessment of the appropriateness of the conduct that it is the subject of the matter’ together with its ‘recommendations as to the future conduct’ of the officer concerned.

The act leaves at large what behaviour may not be ‘appropriate’ and what ‘misbehaviour’ may be.

The act (s111) says that the respondent is not entitled to reasons for an adverse decision.  Such reasons are not made public.  This is an example of the way the act juggles between the adversarial and inquisitorial modes.  In part it is a process like that of a French examining magistrate.  There is a tension there that a common lawyer will not be comfortable with.

Prescriptions on judicial conduct

The act enables the Commission to issue guidelines.  It has done so for sexual harassment, but not so far as I can see for judicial behaviour generally. 

The body representing judges here and in New Zealand, The Australasian Institute of Judicial Administration Incorporated, has issued a comprehensive Guide to Judicial Conduct, 3^rd Edition, over the signature of the Chief Justice of the High Court.  I do not know if these are applied by the Commission.  I expect that they are.

The nine references in the act to ‘proved incapacity or misconduct’ presumably reflect that wording in s 72 of the Constitution.

The Guide refers to three guiding principles: impartiality, judicial independence, and integrity and personal behaviour.  For the most part, it is written clearly enough for litigants to understand it.

Some areas are tricky, and will remain so.  When judges are urged to show ‘discretion in personal relationships, social contacts and activities’, the Guide recognises that this is ‘likely to cause the most difficulty in practice.’ 

This is a delicate area to navigate, but fear of some kind of monastic sodality may be one of the two main reasons why judicial appointment is not as popular as it was two generations ago.  (The other would be changes in the law relating to superannuation.)

The Guide also says that ‘particular care should be taken to avoid causing unnecessary hurt in the exercise of the judicial function’.  Judges should try to act so as ‘not to diminish the confidence of litigants in particular and the public in general’ in the ability, integrity, impartiality and independence of the judiciary. 

The army has always had rules relating to conduct detrimental to the standing of the regiment.  It generally goes under the label ‘conduct prejudicial.’  It looms very large in contracts with professional sportspeople.  Their employer, even one as rough and ready as the NRL, cannot afford to be labelled as being down on gays.  (Especially if the antipathy is said to come straight from God.)

For similar reasons, the Guide says that judges are to treat people ‘in a way that respects their dignity.’  This does not come from the ethics of Kant.  Its genesis is more modern.  ‘For God’s sake, don’t say anything that gets us sucked into what some in the press call ‘culture wars’.  In other words, try not to be branded by others in the press with being ‘politically incorrect’’.

We in Victoria have other legislation that people outside the law might think should have a bearing on the duty and conduct of judges.  The Civil Procedure Act 2010 had as its purpose ‘to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’ 

I do not believe that that act has achieved any progress in shortening litigation or making it cheaper.  On the contrary, both keep getting worse, in my opinion, and for that, the judges must accept responsibility. 

But the high purpose is still on the statute books.  The act is shot through with aspirations and commands meant to help shorten litigation and make it less expensive.  It is used to berate lawyers and litigants, but I am not aware of any instance where it has been held to impose a positive obligation on judges to behave so as to get better results.

Fairness to judges

The act appears to leave it to the Commission to make or find the rules on which they will make findings and give rulings on matters arising under the act.

Is this fair or sensible in a process that can destroy a reputation and livelihood, and actively lessen public confidence in the judiciary?

Put differently, are we satisfied that at common law and by long custom, we have established a canon or code of conduct of judges that gives us criteria for assessing an alleged failure of ‘conduct or capacity’ in a way that affords due process to the respondent and does not expose the judiciary to adverse action by a government agency that may impair the capacity of judges to discharge their duties?

Or, if the parliament was so ready to prescribe how litigants and their lawyers should behave in court, why not do so for the judges?

That is to consider the question from the side of the lawyers.  What about the public?  Are they happy to have the rules of the inquiry about the conduct of a lawyer settled by a panel of lawyers and rather than by their elected representatives? 

Again, to put it differently, how long will it be before you hear reference to the ‘pub test’?

The act may refer to impartiality, independence and integrity, and other essentials.  But where does the Commission find the power or right or duty to comment on behaviour as ‘inappropriate or offensive’ – two very highly charged labels of common disdain? 

And what if it becomes apparent that someone appointed does not have sufficient knowledge or experience to be a judge of the court they are appointed to?  Or what if they just don’t have the nerve?  Or character?  Or judgment?  Or what if they display an uncomely affiliation with some beliefs of the party in power – of which they were a prominent member? 

And what about those in government responsible for the appointment, or the policy formulation that led to it?

And what about the magistrate I referred to at the start? He has been taken out – publicly.  What does the punter think when he is reinstated?  ‘We had our concerns about him, but we have had a quiet word to him and he should be OK now.’

Let us say that there is a body that can certify a person’s standing, say as a jockey or trainer, that has no standing as an arm of government, but the decisions of which can affect the name or livelihood of people.  It sets up a process for the granting or withdrawal of that certificate that is very fair and sensible.  But it does not set out the criteria by which the decisions are to be made.  Has it discharged its obligations to afford due process? 

As a general rule, the government can only move to diminish my legal standing or damage my reputation – as it has done in the case of the magistrate I referred to – if it sets out my conduct complained of and the law or prescribed standard that it is alleged that I broke or failed to meet.

Did that happen in either of the cases involving the magistrate?

As matters stand, it appears to me that the act has the effect of making people subject to surveillance and liable to an adverse finding and derogation of status by a government agency basing its decision on what conduct the agency regards as inappropriate or misbehaviour.  I am not saying that the agency would be acting unlawfully, but that proposition does smack of regimes that we do not admire.  It does not come within our understanding of the rule of law that has been in place since 1215:

….no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. (A V Dicey, The Law of the Constitution, Macmillan & Co 1885, 172.)

Scope of judicial duties – and failures

Let us assume that the powers to make adverse findings on behaviour being bad or conduct being inappropriate validly derive from the act, the common law, and the parts of the Guide referred to above – either by undermining confidence in the system or by failing to respect the dignity of people involved in the process.

Failings like those could cover a very wide area indeed.

According to the most recent annual report, the top ten grounds of complaint were as follows (with percentages following): incorrect decision (20); failure to give fair hearing (16); failure to act in judicial manner (12); inappropriate comments (11); rudeness (8); bias (80); overbearing conduct (6); prejudice (5); denial of due process (4); and corruption (6). 

There is obviously some overlap there, but if you put to one side the first and last grounds (incorrect decision and corruption) and the third (which restates the question), most of the others look to come within Hamlet’s ‘insolence of office’ or ‘proud man’s contumely.’

Well, then: what about the law’s killer – ‘the law’s delay’. 

The Commission for that year received only two complaints about delay.

There is something seriously out of joint here.  Hamlet listed these trials that we face in life when contemplating ending his own.  Insolence or contumely from those in power are insulting and annoying.  But neither comes anywhere near to the damage done by delay in the law and the consequent escalation of costs. 

When I there speak of damage, I refer to the pain and injury suffered by litigants and witnesses, and to the loss of confidence of so many people in the whole legal system, including the judiciary.  

A body policing, if that’s the word, judges that says that they are dealing with failures of courtesy, but not delay and costs, is like a health clinic saying that they are good on cuts and abrasions, but people should not come to them about cancer or heart ailments, or other killer diseases.  The big items are above the pay level of these guardians. 

There’s not much point in having good table manners if the house is on fire.

Two cases

Let me mention two cases I know of.  Both involved delay, and one involved a complete breakdown in a disciplinary process directed at lawyers.

Nearly forty years ago, when I presided over the Taxation Division of the Victorian AAT, I heard cases involving licence fees on petroleum.  One involved complicated cross-border petrol transactions designed to evade state duties levied as licence fees – that the High Court later ruled invalid.   There was some very hard swearing and plenty of schemes and shams that raised nice legal issues about ‘interstate trade’.  I had to intervene heavily before the hearing to reduce the time of the hearing to a manageable period.  (I had a busy practice to run.)  It ran for five days – an all-time record for me.  I gave a decision after a few days.  (George’s Jet Gas v Commissioner of Business Franchises [1986] 1 VAR 194, 405.)

Counsel had said that the case could take weeks.  I had threatened to call my own expert – at the loser’s expense.  They then settled on some accounting issues.   But, as it turned out, the Crown had made an error of judgment.  They sought to play it again, but I declined.  I was still feeling my way a little in this tricky area, but it was out of the question that I could hear a case going for weeks.  Five days was far too long.  I never again allowed an agreed statement of facts.  The aura of unreality is reflected in par. 31 of the main decision.

The appeal to the Supreme Court was by way of rehearing – on issues of fact (credit) and law.  The judge who heard it in the Supreme Court reserved.  For two years.  

Any illusion of a fair hearing or due process on issues of fact had evaporated after about two months, at best.  The litigants would ring me pleading for my help.  In the meantime, the main member of the family died, and the High Court changed the law on ‘interstate trade.

That was disgraceful.

After about sixteen years running the Taxation Division, I was fired.  (That’s another story.) 

In the meantime, I had been appointed to exercise the powers of the CEO of the Metropolitan Fire Brigade under its act.  I had to set up and run a disciplinary tribunal from scratch to enforce laws that had never previously been enforced.  There were bound to be issues between management and the union, the UFU.  Discipline as a concept in that context was both novel and fraught.

The MFB was a statutory body that was an industrial minefield and a political death-trap.  It was effectively run by the union.  Sir Daryl Dawson, with whom I had read, told me that the MFB had been a regular source of work for him in the sixties, and a glance at the press now suggests that they still look like Hottentots tip-toeing about the edge of a live volcano.

After about ten years putting up with my being at it, the UFU decided that it did not want any more of this disciplinary process.  And it was suffered to die.  From time to time, I would tell management that they could get in trouble for doing nothing.  But there was a high turnover of CEOs, while that at the UFU remained constant.  Life tenure looks to be the new norm there.

After some years of silence, management got the courage to charge a firefighter.  He was charged with having obscene material on an MFB computer.  The material was vile for its abuse of other races and faiths – including Islam.  There was no defence.  It should have been disposed of in about two hours. 

It dragged on for days as the government intervened in the tribunal process.  The accused did not turn up on day one.  On day two, senior counsel for the accused said the accused had not been there because he had a message from the minister’s chief of staff saying that the matter would be adjourned.  It’s just that no-one asked the tribunal or was told of its hostility to any kind of adjournment.  No-one seemed to question the propriety of this kind of political interference in a statutory process that was meant to be both public and independent.  They all just looked serenely stupefied, like stray cats that had found their way into a kennel. 

At one stage I asked a simple question of those in charge of the prosecution – one that a police sergeant would have come straight back on.  Six lawyers left the hearing to consult – for quite some time.  Six of them.  As I recall it, I was left to discuss Hamlet with counsel for the accused.  This was an appalling fiasco in an essential service.  The MFB was more dilatory than the union.  (And the government was faster than both – and me.)

The accused should have been fired, but I thought that would mean he was paying the price of dreadful incompetence on both sides.  Instead, I was fired. 

Some smarty must have told the MFB that this kind of dirty work is best done after dark on a Friday night – of course, no one gets fired from the Elysium on Eastern Hill: or, for that matter the UFU – so I got the pink slip by email on returning to Malmsbury one Friday night after an outing in the city for an hilarious performance of Mozart’s Il Seraglio.  (Those at the MFB may have known that I don’t do Twitter.)

I then had to sue them to recover my retainer, which I did with interest and costs in proceedings in the Magistrates Court (where you have to turn up for a compulsory conference in a debt collection), but only after the Brigade had spent many thousands of taxpayers’ dollars in taking every dud point that vacuity could unearth as they trashed any possible suggestion that the Crown should behave properly in litigating with one of its subjects. 

Then they complained that I had acted unethically in publishing accounts of a public hearing.  That too was groundless.  But it took those responsible about two and a half years to get round to dismissing it. 

Two and a half years under the guidance of the relevant government department, the Legal Services Commissioner. 

The whole and express object of the MFB was to get me to shut up.  They were trying to get by the back door the non-disparagement clause that I had expressly refused to sign for reasons that they well knew.  They dread public knowledge of what they do.  They are like bats in fear of the light. 

The legal regulator adopted a form of inquisitorial process rarely seen south of Gibraltar.  It is appalling that it took years to dispose of this nonsense.  I was never confronted by the accuser.  There was never a hearing.  My counsel could not therefore examine their sources of evidence.  We just had to keep responding as whoever was directing this process continued to shift the goal posts and alter their line of inquiry – or attack. 

You will understand how often the name of Kafka was invoked at our end.  (You will recall that The Trial begins: ‘Someone must have traduced Joseph K, for without having done anything wrong, he was arrested one fine morning.’)

Eventually someone I had never heard of or seen put his name to what was said to be a decision.  Well before the time of James Comey, my decision-maker decided that while dismissing the complaint, he should take a swipe at me personally.  My recollection – which is far from flawless – is that he concurred in thinking, and saying, that I really should not have put a post on my website to the effect that the MFB had now overtaken 36 Collins St (the Melbourne Club) as the most exclusive men’s club in the State of Victoria. 

The complete aura of lassitude and incompetence was very unsettling and demeaning.  That of the MFB was matched by that of the legal regulator.

By what I saw of the MFB, it must be one of the worst run statutory bodies in the nation.  At one point in the last case, a lawyer rang me saying that he was ‘a trusted adviser’ of the board of the Brigade.  That was interesting.  Until then, I had not heard of the board.  For about twelve years, I was vested with the powers of the CEO over discipline in a statutory corporation of an essential service, and not once did any member of the board feel the need to talk to me.  This was my first piece of evidence that a board of the MFB existed.

Those who think that professional bodies cannot be trusted, or be seen to be trusted, to manage their affairs without intervention from government, might look into this case.  For me it was a pest – of a kind I was used to.  And I had very good advice and support from my solicitor and counsel. 

What about some struggling newcomer who has just arrived in practice?  What about a magistrate or judge faced with a challenge of a kind that does not come from within their playbook?  Do people on the Commission know that it’s like to be confronted by a force you cannot see?  Or be subject to the vagaries of a system that leave you feeling utterly powerless?  Or be trapped in a process that leads you to believe that no one knows what to do?  Or cares?

Now, I have gone into those two cases in some detail for three reasons (apart from the pain that each caused me). 

First, we have a reminder that tribunal members are not judges and do not have the tenure or protection of judges provided by the Act of Settlement, an essential part of our constitutional settlement.  I do not suggest that they should have that tenure, but they are amenable to government pressure in ways that judges are not, and some behave or misbehave accordingly. 

On the other hand, the insecure ones, like the untenured part-timers, are those closest to being influenced by government, and they may not be improved by being aware of being under surveillance by government for conduct unbecoming.  Only God knows what the justices of previous generations would have thought of all this government intervention in their offices.

Secondly, we can understand why governments get toey about professional bodies being left to police their own professional obligations.  But experience suggests things may only get worse if government interferes in the process in what government understands to be the public interest.  The alliance between a profession and the public service tends to be both gelatinous and unholy.  For that matter, the history of government in policing capital markets has not been happy in this country.  The corporate regulator cannot seem to attract the right people, and the regulator is seen to be dynamite on the small fry, but of not much use where they may be most needed.

Thirdly, and very relatedly, we are witnessing the death of an independent civil service.  Where the law intersects with the executive, in any of its guises, there may be breakdowns in efficiency, if I may put it that way. 

There may also be head on collisions with politics.  A body like VCAT is not a judicial body: its members do not exercise the judicial power of the state.  It is an arm of the executive that must inevitably be much closer to government policy issues than judges can ever be comfortable with.  The implosion and destruction of the federal AAT was a hideous example of what happens when people who are supposed to be independent of government get too close to government.

That is why I do not think that it is appropriate for a justice of a superior court to be in charge of this body.  It is like having a sitting justice hear a Royal Commission – something they refuse to do point blank.

Judicial morale

Courts and tribunals are like law firms, hospitals, and football teams.  Everything turns on morale, teamwork and leadership.

It is not hard to see how external surveillance may disturb morale.  The members of the team might keep looking over their shoulders to see what a government agency might think about their conduct. 

Then one day a judge may turn up for work and get a letter from the government saying that the Commission had received a complaint about him or her, but had dismissed it.  And this was the first that the judge has heard of the complaint.  Kafka and Orwell were right, after all.  And think of how that may have gone down with, say, a member of the Starke family.

Take the team leaders in the courts.  They are now deputies of a government agency which is there to police standards fixed and determined by that agency.  How can they square that duty with leading their team?  Independently of government?

Do you recall the shambles when the captain of the Australian XI became part of management?  The nation was appalled, and Michael Clarke never recovered.  Australia lost a series 4 nil after four players were suspended for failing to do homework set by the coach.  Mature adult leaders in their field were being punished by a regime of which the team captain was part.

In any hierarchy, there will be tensions.  Having acted for a number of Anglican priests in dealing with theirs, I can say that their bishops have a job that no one would want.  To put it softly, they are not well liked.  My firm advice to the priesthood was that the first thing they should do should be to form a union.

My impression is that morale is low among magistrates, and possibly worse in the County Court.  (It can even drop in the superior court when those in Canberra get ethereal.  Which they do from to time, when none of them now has, I think, ever directed a jury in crime or anywhere else.  At least I got to appear in a few jury trials.) 

The politics of my appointment to head the Tax Division were that since appeals from that division were to a single judge of the Supreme Court, it was not appropriate for a County Court judge to deal with them.  Relations now between the County Court and the Court of Appeal are at a very low ebb.  They have never been good. 

It is a sad fact of life that some appellate judges are remarkably insensitive about the feelings of those they are commenting on.  It does not help that too many of those judges have never done time at the relevant coal face. 

And when judges get roughed up, the tradition in any kind of public service is that they pass that on to the next level – here, the Bar or magistrates.  We are reminded of the American aphorism about appeal judges – they are the ones who hide out in the hills when the battle is on – and then come out to finish off the wounded

You can, I gather, see the problem better with serious injury cases.  It is the first step in a personal injuries action.  It should be dealt with in a couple of hours with judgment on the spot.  Instead, there are affidavits, bundles of expert reports, a silk on either side, and judges’ reserving, giving judgments up to fifty pages or so, sometimes a year or so later. 

Why?  The main reason is that there is an appeal as of right to the Court of Appeal (no member of which is likely to have ever heard such a case) and the trial judges feel the need to act and write defensively. 

This is a form of madness that feeds a very greedy gravy train for the lawyers.

VCAT is in its own realm of insecurity.  Its members have no tenure.  They are on time-contracts.  Can they afford to offend government, which is their boss? 

And the pressure on them from government in matters such as FOI or town planning can be heavy.  I have seen it with my own eyes.  It is very unsettling.  

I referred to the collapse of the federal AAT above.  That followed conduct of corruption at the highest level of government, but the pressure generally is more insidious and less visible.  And I doubt whether the Judicial Commission can deal with that kind of attack on the impartiality, integrity and independence of the members of that tribunal.

It now looks to me that the creation of a second tier and second class of government dispute resolution, transferring the work from the judiciary to the executive, was a mistake.  But there is no chance of that mistake being corrected now. 

Well, one option would be to give it more work.  Starting with serious injury cases and limiting rights of appeal to those at least as stringent as those set for the High Court.

Delays in litigation

There are three kinds of this delay – getting the issue to hearing; completing the hearing; and getting a decision.

The first is a matter for the rules of court and the extent to which the judges want to stick with court’s managing the case – which adds to time and expense – and go on with those frightful witness statements, or brawls about pleading and discovery.  People have been bleating about our time wasting for years – and nothing gets done.  We spend all that time on getting the matter set up for hearing – when that energy would be better applied in fixing times during the hearing.

Although the head of the court is responsible, these are issues for the court as a whole – and are hardly amenable to a body like the Commission.  Among other things, the heads of the court would be sitting in judgment on themselves.

Nor do I think that the scheme for the conduct of the hearing within the courts is a matter for the Commission.

But delay in giving judgment certainly is.  The case of delay I mentioned was an offence against humanity.  I referred to the Civil Procedure Act.  Its purpose is to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.  The judges speak of treating people with ‘dignity.’  Whatever judges do when they take too long to decide, they are not treating people justly or with dignity.  The case I referred to was a wanton betrayal of trust and a spurn of patient merit – for which the court as a whole should be ashamed. 

It is still now, and it has been so since 1215, part of our law that the Crown must not deny or delay justice – and justice delayed is justice denied.

The court could set times within which judgment should be delivered.  I would suggest a month.  A couple of failures could be dealt with in discussion.  After that, the discussion should get very serious.  Judges who cannot meet those requirements should consider whether they are in the right place.  The court should maintain a list of outstanding judgments with times.  That list, and the suggested time limit, should be publicly available.  It would also help if the court published a statement of the hours spent in court by its judges.  The buzz word is transparency.

And that regime should come within the ambit of the Commission.

I heard cases for over thirty years on a sessional basis.  I had to fit in this public duty work while carrying on a busy practice.  I was certainly not there for the money.  I doubt whether the daily rate for tax cases ever reached the hourly rate of my own practice (which some of the commercial partners in my firm were prone to notice).

After a year or so to get my eye in, I followed a scheme that I formulated to deal with hard tax cases as follows.

The Crown would refer its disallowance of an objection to an assessment to me.  I would say that we would resolve it within six weeks.  I would fix a hearing date in about four weeks’ time.  There would be no prior hearing or directions or witness statements.  We would usually finish the hearing before lunch.  If necessary, I would fix times for the examination of witnesses and submissions.  I would try to give my decision on the next working day.  We applied that model to most cases for about fifteen years. 

A lot of lawyers grizzled, groaned, protested, and appealed.  I never once heard a complaint from a litigant.  The Crown appealed as of course and as of right almost every case they lost.  They had a legitimate interest in getting a ruling from the Supreme Court.  In the end, three of mine were dealt with by the High Court. 

I have never understood why decent judges get so uptight about what happens on appeal from them.  It never troubled me.  As often as not, I did not even get to hear to hear about it.  I was intent on expedition – fairness, of course, but at a properly controlled speed.  Lord Mansfield knew the truth.  Most delay in litigation comes from the lawyers.  No litigant with a good case wants delay.  Delay suits those with power and wealth. 

In 1215, the English Crown acknowledged that justice delayed is justice denied.  In my, view the fall from grace of our trial lawyers and systems has come from our failure to deal with delay.  It is partly a failure of nerve and partly a sustained flirtation with the inquisitorial – which as a matter of simple but long history is not the way we practise the law. 

Well, all that in me sounds like a broken record – but it does hurt other people more than me.

In a very politically charged public inquiry I conducted in 1992, the following occurred.

Predictably, boxes of documents on trolleys started to arrive.  The lawyers were talking about the proceedings lasting for months.  They thought that the hearing would last for four months of itself and that it would take many, many months to get to that stage.  This was out of the question.  The other members of the Commission had lives to lead – and so did I.  We told them to convert an elastic quote of four months to a fixed one of four days and that we would start soon.  There was a degree of posturing and expostulating that you expect from lawyers when you tell them to get on with it.  …. What we had to do in the hearing itself was what a court has to do – we had to distil the issues, that is, settle the questions to be answered.  Through the hearing we progressively narrowed propositions of fact that were not in issue.  I will never allow agreed statements of fact – they are inherently only as trustworthy as the parties and the lawyers submitting them – but we developed a list of allegations of fact that were conceded.  ….. We were able to express our reasons in plain terms with no reference to legal authority at all.  In the end, the substantive hearing took four days, not four months.  The notice of appeal was given on 31 July 1992 and the final decision was given on 23 September 1992. 

The point is simple.  It is up to counsel to present their case to the court.  But it is up to the judge to deliver a fair trial and to conserve valuable court time.  To do that, they may need to be firm with counsel who are incompetent or just long winded.  If judges can be put off doing that job, then the bad position we are in now will only get much worse.

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

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

We are supposed to be a learned profession – standing up for those we have the honour to represent, and helping to maintain the justice system that we have the privilege to serve.

Conclusion

The Commission is not backward in stating its mission.

We exist to ensure an exemplary legal system for all Victorians. Through our work, we cultivate superb judicial behaviour, support complainants and create a fair, esteemed and accessible legal sector.

My impression is that most Australians have a justified confidence in the integrity of their judges, but that very few of them have much confidence in the efficiency with which their justice is delivered. 

Australians tend to take integrity for granted with their judges.  They expect them to be fair, sensible, independent of government, and up to the job.  Most of them are fair and sensible.  And most of them are independent of government.  But too many of them are not delivering justice within a time and at a cost that most Australians might decently expect from their judges.

If a body like the Judicial Commission cannot confront the serious problems of delay and costs in litigation, is it there for anything much more than window dressing?

The conclusion I draw is that the Commission does not matter where it counts.  The lawyers, judges and, above all, the people of Victoria, deserve more.

Opinions may differ about whether a government should claim the power to tell judges how they should act.  My instincts, informed by both practice and learning, are firmly against it.  But if you are to have such an agency, it is just wrong that its main task is not to deal with the cancers of litigation.

Judicial Commission – Legal Services Commissioner – County Court – Supreme Court – Magistrates’ Court – delay in litigation – lawyers – legal costs.