Passing Bull 254 –Public interest and privacy

/ Geoffrey Gibson / Leave a comment

Some years ago, the BBC put on a tough interview with Boris Johnson.  As I recall it, the interviewer finished by calling his subject a ‘nasty piece of work.’  The subject was not amused.  I can almost see the steam rising.  But a critical function of the fourth estate is to check up on the other estates.  The BBC just happens to do that job better than most others.  The English Prime Minister is now gunning for the BBC.  You can draw your own conclusion about the connection between the two events.

Before I comment on the Four Corners program on the Canberra bubble, I must confess to three sources of bias. 

First, I like the ABC but I don’t like the federal government.  I acted for the ABC as a barrister and then as a solicitor for about a quarter of a century.  At times, I took instruction from Sally Neighbour, who was I think the producer of this program.  Otherwise I took instruction from Judith Walker, the in-house solicitor in Sydney.  Judith was as fine a civil servant as I have met.  Her position was very difficult because she was always subject to heavy political pressure from politicians of either side.  It could get very ugly – as they say in the NRL. (She and I both survived that frightful phase when John Howard stacked the board with preposterous puppets.)  I was happy to represent a public body that in my view performed well in a job that we badly need to see well done.  And my partners and I would be greatly amused to hear the firm that I was a partner of described as ‘left-wing,’ or some other such silly label.

As to the government, I find this Prime Minister to be determinedly unimpressive.  Queen Victoria said she felt that Gladstone performed as if he were addressing a public meeting when he spoke with her.  Whenever I hear our present Prime Minister, I feel like a fifth grade student in a geography class at Box Hill State School.  As to the MPs referred to in the program, they fall to be assessed by such of their conduct as is common ground.  On that evidence alone, the best I could say of either is that he is a nasty piece of work.  As to party politics, I will have none of it.  I vote at both federal and state elections based on my assessment of the candidates.  Their party is irrelevant to me – and let’s face it, neither of them stands for much anyway.

The second ground of my bias or prejudice is that I have raised two daughters and I know something of the demons out there that women have to deal with – and I hold very strong views about people who abuse power for personal advantage of any kind.  The crime of rape is after all the grossest form of abuse of power.

The third ground is that I am one of the few people in this country to profess respect for Malcolm Turnbull.  I hold him in much higher regard than most politicians on either side – including his two successors.  In my view, this nation has been badly let down by its politicians, and I very much regret that this man was assassinated by his own party, twice – because too many of them simply refuse to grow up and act decently on the challenges to the environment on climate and other grounds.

Now for the Four Corners program.  I will assume that you have watched it.

All the women were for me entirely credible.  The complainants in these cases – and I have acted on each side in such matters – have no interest in going public like this.  Such a step requires at least two things.  The person sees what they think that decency requires of them in their assessment of the public interest.  Then they find the courage to do what they see as their duty.  All the probabilities are against any fabrication.  The late Peter O’Callaghan, QC dealt with complaints against his church for many years.  He told me that in that time he only saw one bogus claim – and that one was hilarious.  A large part of the problem of this foetid culture in Canberra is that people are too scared to come out.  As one journalist who knows the scene says, ‘speaking out puts a target on your back.’

The evidence of the women was consistent with all the other evidence.  The problem of people living together in what is called the Canberra bubble is as well documented as the failure of the Liberal Party to get more women into parliament and government.

And the people against whom the allegations were made, in particular Mr Porter, chose not to respond to them after being given many opportunities to do so.  Instead, they used their influence to try to destroy evidence and to prevent publication.  On that ground alone, the subject of the program was obviously one of public interest.  Here you have members of parliament, including the Attorney-General, using their influence to try to remove evidence of the public conduct of one of them and to stop the public broadcaster informing the public of what happened.

You do not have to be a lawyer to see the result when evidence of misconduct is uncontradicted.  And we know that it was misconduct precisely because those responsible for it did not want us to know about it.

One critical item involved Mr Porter being seen in a well-known public bar in Canberra behaving with a woman who was not his wife, but who was on the staff of a minister, in such a way as to attract public attention – to the extent that a journalist watching it decided to take a photo of it.  This was the evidence that Mr Porter and his parliamentary supporter, Mr Tudge, tried to suppress.  As it happens, Mr Tudge has also had an affair with a staffer.  But Mr Porter’s friends in the press, especially The Australian, say that this was not a matter of public interest.

If I may say so, what happens in public is not private.  That would be a contradiction in terms.  And it is not private when it involves the conduct of people who are all on my pay-roll.  And it is in the public interest for us to be informed of conduct by our members of parliament that reflects on their capacity properly to represent us – to the extent that the then Prime Minister had to warn them and formulate some kind of precept to deal with an issue which was known to have been festering for a long time.  It is simply worse when one of those involved in the misconduct is the First Law Officer – the person charged with enforcing the law – and who is given to lecturing us about family values. 

And we hardly needed ASIO to warn us of the danger to the public weal of those in power over us engaging in misconduct that leaves them susceptible to the power of our enemies.  If Messrs Porter and Tudge react like this when approached by the ABC, what will they be like when agents of the secret service of China or Russia come knocking on their door? 

It is terrifying to think of what people may have tried on Kennedy or Trump because of their wanton womanising.  Clinton was no better.  The days when what was called adultery were kept in club are long gone.  If an elected representative behaves in a way that leads his wife unable to trust him to keep his word, how does he expect us to trust him?  Do they all not see that we are all just fed up with this perpetual hypocrisy?

There might be an argument in a court of law about what lawyers call similar fact evidence, but this was not a court of law. In my view, this was first rate journalism, and that is evidenced by the reaction to it by those inquired of. 

The denials made by people like those at The Australian go to show their prejudice against the ABC.  In truth, as a friend of mine remarked, they hate the ABC.  And this will get worse.  Now that the ABC has people of the calibre of Laura Tingle, David Speers and Annabel Crabb, the advantage of the ABC will really grate.  They are far ahead of the rest of them.  And when did you last see investigative journalism like this in the rest of the press?  How many parliamentary inquiries or royal commissions have been launched because of Four Corners?  Who else has this facility?  Can you imagine a world in which we did not have the ABC by which we can gauge the rest – to their never ending chagrin?

What now for Mr Porter?  He comes across as having little or no judgment, a pampered pretty boy who is used to getting what he wants by throwing his weight around, a lightweight Antipodean version of Donald Trump in board-shorts and thongs – and we know what his leader thinks of thongs.  Mr Porter has a serene smirk that bespeaks a slovenly conscience trampled under a rampant ego and id.  His ineptness about that silly notion of religious freedom was not one off.  He is a serial dill.  Mr Porter is not at the stage yet where the Australian press uses the term ‘disgraced’, but he is hovering over another favourite sobriquet of theirs – dead meat.  He and his frisky and pesky pal are headed for oblivion, and that will be a blessing for us all – especially our women

And his watery reference to legal action was further evidence of his lack of judgment and tendency to bully.  The prospects of such action being taken and going to judgment well for him are about the same as my prospects of beating his father’s best high jump.

I congratulate the ABC and in particular its Chair and Sally Neighbour and Louise Milligan for staring down our government and doing their job so well.  Ita Buttrose knows all about male bullies.  She was a good choice by this Prime Minister and we should take care to see that the recriminations do not imperil the Chair.  Their capacity to indulge in purges of the ABC is another reason why I do not trust or respect this government.

And the government?  When the High Court found that this infection had reached it, our Chief Justice said ‘We’re ashamed….’I was moved by this integrity and decency.  We never get it from the other arms of government.  We just get more banal mediocrity, and, Heaven help us, ‘not on my watch’.

As for the folk at The Australian, it is hard to know whether their jealousy of the ABC is driven by contract or torment.  I watch Four Corners about once a year and I have never seen Q and A.  But the people at The Australian look to be addicts.  The Jewish Sabbath sees a motley of Liberal Party staffers and apologists, Looney Tunes from the IPA, and the most dolorous Catholic in Christendom all join hands for an orgy of ABC bashing.  They divide their time between putting down the ABC and boosting up Donald Trump.  Perhaps the wind brought their sore affliction over the water from their ugly sister in America – although it would have to come the long way.  It is fair to say that the warped minds of people like Credlin, Kenny and Henderson are notorious among people in what they are pleased to call the elites – but their bone crushing predictability must leave them all at risk of boring each other in their own little bubble to death.  They are all a shirtfront to sense and decency.  And the hate mail that they get from their followers which they publish is deeply disturbing.  It has been years since any person of sense, of any political stance, took that paper seriously.

The upside is that they are the best boosters that the ABC has ever had.  The downside is that while Rupert Murdoch lives, Donald Trump could happen here.  And they would see that as a big win.

A mare and her foal are in peace munching the long grass in my paddocks and reducing my fuel load.  Later I will stroll along the ridge toward the cemetery, trusting that the Almighty does not see that as teasing Him, and I will be gazed at by cows munching soulfully on their cud.  Then I will take in the view of a railway viaduct on one side and a lake on the other, each in its own valley.  And then, it being Saturday, I will go the village to collect the papers – and then count the orchestrated sprays of the ABC by Murdoch’s minions – and hope that my uptake of sanity survives the day.

Thank Heaven for the simple goodness of nature.

Passing Bull 253 –AFR Loading

/ Geoffrey Gibson / 2 Comments

An AFR editorial about Trump on 31 October 2020 showed leanings and aversions that keep appearing – disgust at anything ‘Left’ and closeness to big business.

In 2016, Mr Trump offered a weary and disappointed US middle and working class a self-contained America that kept out migrants and unfair trade, and kept away from the wars of others.  There were annoying kernels of truth in his complaints……Foreign allies piously calling for America’s global leadership also happily freeloaded under Washington’s huge defence budget burden.  The identity politics of left progressives still too easily sneers at common people and veers into censorship…..The Democratic response to the Trump presidency has been a shift to the wacky left…. Mr Biden, though too old for the job, offers the better hope of return to some form of normality.  President Biden, braked by a narrow Republican majority in the Senate, would be the only good result for America and the world.

A lot of that is in the language you see in another newspaper – identity politics, left progressives and the wacky left – but are these demons breathing so hard in the editor’s ear that his distrust of the ‘left’ is such that he thinks a divided country would best be served by a divided government, and that the interests of America and the world would best be served by Mr Biden having to put up for four years what Mr Obama had to put up with for eight years from Mitch McConnell?  And might it not seem just a little presumptuous for an Australian newspaper to say how Americans should structure their government?  By putting a brake on their president?

Bloopers

Judging by Biden’s first speech as effectively president elect, one of the chief dangers we will face from a Biden presidency is drowning in schmalz, slightly mangled.

The Australian, 9 November, 2020.

The dreamtime of a ghost-seer – Part 5

/ Geoffrey Gibson / Leave a comment

Reflections on the law and other things by a lawyer in autumn

V

In the late 70’s and the first half of the 80’s, Neil McPhee and I fought a lot of cases for the VFL, as it then was, in seeking to uphold their rules, and for the press responding to prosecutions for contempt of court.  We lost all of them – at least all those that were fought through to judgment.  The law is against people’s freedom to trade for the supply of their labour being restrained by rules of those running the relevant market.  It was obvious that the League’s zoning rules were in restraint of trade.  The onus was on us to show that the restraint was ‘reasonable’.  We never managed that – and so Mr Packer and others were able, for better or worse, to go into the market – and the rewards for the players went sky high.  Those running cricket had been obdurate and mean, and no one should have been surprised by the explosion.  The contempt cases involved another difficulty that I will come back to. 

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Over about the same period, Jim Kennan and I treated ourselves to a long lunch at the Society at the top end of Bourke Street about three or four times a year.  Crayfish legs for $2.50.  We would settle in until about 3pm, and then go to a bookshop or record shop, and end up for coffee and liqueur at the Windsor.  The clientele looked to be the Catholic hierarchy, racing identities, and up-market call girls.  I loved all of it.  It would be fair to say that I probably drank more, although I don’t think we ever got disorderly.  We walked into the Windsor one afternoon and Liv Ullman was at reception.  I had just bought a volume of poems – I think Browning – and I said I would get Ms Ullman’s autograph.  Jim was scandalised and hid behind an aspidistra.  (That is literally true.)  The actress was both charming and obliging and signed the book of poems.  Jim was relieved and we went back to the Hill of Content for another go at a bookshop.  Liv Ullman’s autobiography was on the shelves.  Jim bought a copy and wrote in it.  When I got home I saw what he had written.  ‘To Christine.  From a friend of a friend of the author.  J H K.’  That was all style.  Jim was always good for me, and I still miss him.  Just as I still miss another Jim from the law, Jim Merralls.  Each for me in his own and different way showed how we could try to do something good in our profession.  And each knew just how well off we were to have that opportunity.

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‘Majesty’ is such a fine word – majestic, even.  Churchill concluded a speech to a spellbound U S Congress this way:

It is not given for us to peer into the mysteries of the future. Still, I avow my hope and faith, sure and inviolate, that in the days to come the British and American peoples will for their own safety and for the good of all walk together in majesty, in justice, and in peace.

Possibly only Churchill could have said that, and his American audience erupted.  They had heard of his oratory – and they had one of their own at that time – and now they had shared it.  He probably had in mind ‘the dignity or greatness of a sovereign’.  We are talking of the kind of dignity in a sovereign that we find in the offences of lèse majestie or laesae majestatis – ‘insulting the sovereign’ – that you can still find in regimes in Thailand or Turkey and which was probably the basis of the judgment adverse to Jesus of Nazareth:  the suggestion came – we know not from where – that the prisoner had claimed to be the King of the Jews – and that could be found to have queried the authority and power of Rome over that part of its empire that included what we now call Israel.  Pilate did not refer to the response of the prisoner that ‘My kingdom is not of this world’, and we might doubt whether that proposition would have been a defence to ‘wounding majesty’ which is the meaning of the French and Latin phrase above.  But that sense of majesty is precisely what I feel at that part of the second movement of the Eroica that I referred to before.  It makes sense, therefore, that the other comparison that occurs to me is Churchill’s reference to ‘those broad sunlit uplands.’

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You might I suppose want to talk of the majesty of the law, but I incline to the view that such an attitude might best be left to the history of the law or visits to its birthplace, England.  I always dropped in on the Royal Courts of Justice on the Strand when I was in town.  (They are not far from Australia House that we used to repair to in the distant past on Mondays to check the footy scores.)  I don’t know whether it was just luck, but I always seemed to find myself listening to a barrister who looked very much at home and was as smooth as a baby’s bum.  A substantial part of the Victorian Bar turned up to tune into a fabled libel action between Jeffrey Archer and Rupert Murdoch.  Bob Alexander for the plaintiff was outright svelt.  But we thought that the cross-examination of Archer – who looked awful – was anaemic.  We thought that McPhee or Sher would have wiped the floor with him.  And the judge was so loaded against Murdoch that it was downright embarrassing.  So, we did not need to feed any chip on our shoulders.  As it happens, I think that the verdict was later set aside when the duplicity of Archer became known.

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Which reminds me that my first jury trial was a libel action.  This was about 1974.  Gavan Griffith had advised the owner of a caravan park to sue the ANZ bank for libel for bouncing a cheque.  If a bank tells someone that its customer has insufficient funds to meet his obligations, that communication causes others to think less of the bank’s customer.  That is a libel – or, if you prefer, defamation.  The action was brought by the company that ran the carpark – it was run by a retired police officer, a doughty type who took offence at his bank’s rudeness.  The bank pleaded all the defences to libel – except qualified privilege – which I thought would have been unanswerable.  I spent the best part of a week learning about the law of libel.  I paid real money for the main text, Gatley.  I also had to find out about appearing before a jury, and to overcome nerves at stepping into the unknown.  One thing did trouble me – the company was in substance defunct.  How could it maintain the action?  What could the damage be?  Well, I was briefed to appear for the company by a reputable firm, and the bank was represented by my old firm and reputable counsel, who said nothing about the standing of my client.  So we went on.  I had cases on the law of libel coming out of my ears, so I was more than a little surprised to look up and see Judge ‘Slim’ Somervaille charging the County Court jury from the precedents part of a book about process in the County Court that was about half a century out of date.  The jury did the right thing and came back with a verdict.  For us.  I think the damages were assessed at $500.  That meant we got off the bottom row of costs.  I think my fee for the two days hearing, conferences, and about a week’s preparation would have come to less than $200.  It was all very gratifying.  I started to ease into libel generally.  My old firm acted for the ABC, and after a while I was specially retained by the national broadcaster, for whom I still have a soft spot.  I got to know Bernie Teague for Murdoch and Tony Smith for The Age, so that I was involved in most libel actions in Victoria on one side or the other.  Some of the press were very heavy handed and sought to beat up plaintiffs, especially politicians and celebrities, by arguing about very technical points of procedure – that I was learning all about.  I tried to discourage most people from suing – unless I thought the case was clear.  Then I could get a writ issued, and seek a speedy trial, and settle for, say, $20,000 and an apology.  I found all this very rewarding.  It is good to have one area in which you specialise, and are known for such, and in my view it is very unhealthy for lawyers only to act on only one side.  That can lead to a very dangerous closing of the mind. 

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In addition to libel actions, I had to fight prosecutions for contempt.  They are different.  Your proprietor can write the cheque for damages for libel, but it cannot do your time for contempt.  The Crown had only to show that what our clients had published had a tendency to interfere with the course of justice.  That issue would be tried by a judge alone, and a lot of judges were worried that the press could abort criminal trials if they were not careful.  The crime is prescribed by the common law, and there is no limit on the penalty.  It is no understatement to say that we were kicking into the wind – sometimes a bloody gale.  The upshot was that a well-known broadcaster, Derryn Hinch, was sentenced to six weeks in prison for telling the truth on a matter of public interest – that a priest awaiting trial had prior convictions.  As the law then stood, there seemed to be no defence; that is still, I think the law, but it is very hard to imagine that the result would be the same today.  Still, it gave me something to dine out on at legal conferences in all parts of the world.  A large crowd turned up each day to show their hostility to Hinch.  I could feel it drilling into my back at the bar table.  I was glad I was with John Winneke.  The judge, Peter Murphy, was having trouble concealing his appetite to send Hinch to the slammer.  Then one day a woman came into court apparently to watch John Winneke in action.  She had just briefed him to act for her.  Her arrival caused quite a frisson.  This lady had her own special kind of presence – it was Lindy Chamberlain.

Passing Bull 252 – Fluffy tropes

/ Geoffrey Gibson / Leave a comment

Some people get by saying nothing pompously.  In The Australian today, Paul Kelly begins his front page column this way.

Annastacia Palaszczuk has proven the power of closed borders and the curse of pandemic protectionism.  In this first state election of the COVID-19 crisis, Palaszczuk has shown how the virus has elevated strongarm populist premiers as the new giant killers roaming the land.

The results of elections are caused by all sorts of things.  They may or may not evidence sentiments in the electorate.  We will never know.  It is impossible to say what sentiments were the most significant.  That is one reason that we don’t trust polls.  Yet Mr Kelly can isolate one cause not just as evidence but proof.  There is a very big difference between the two – that we might hope a political diagnostician might have firmly in mind.

But what on earth is ‘pandemic protectionism’ and why is it a ‘curse’?

Let us put to one side tropes like ‘strongarm’ and ‘giant killers roaming the land’.  They are just silly.  But what does populist mean there?  It is not meant as a compliment.  The word ‘Trumpian’ gets a run in the next paragraph.  It looks to be an essential part of the ‘curse’.  As I follow it, in the two party system, people vote for the party that they think will best serve their interests.  The winner can say that it is the more popular party of the two.  A clear majority thought that the winning party would serve their interests better than the other party.  It is a fair inference that the pandemic was a significant factor in their thinking.  Experience suggests that incumbents are favoured in times of crisis.  But what here takes the successful party from popular to populist?

The thoughtless use of clichés as labels is the bane of our press.

Bloopers

Apollo said in a statement it was ‘firmly committed to transparency’. It added: ‘Leon has communicated directly with our investors on this issue and we remain in open dialogue.’

Financial Times, 23 October, 2020

What matters is that I act with integrity and honour.  That means I need to act in the best interests of ASIC and its vital purpose to build a fair, honest and efficient financial system for all Australians….I only took this position to serve the Australian community and to work to improve the corporate and financial system that should also serve it.  If I in any way impede that purpose, the right thing for me to do is to step aside until such time that I can.

The Weekend Australian, 24-25 October, 2020

Dreamtime of a ghost-seer – Reflections on the law and other things by a lawyer in autumn

/ Geoffrey Gibson / Leave a comment

V

Philosophy does not have much to say for itself now.  I studied it for three years at Melbourne University, and I have since topped that up with summer courses at Oxford – and a lot of reading and writing.  It is a very good aid as a bullshit meter.  I am as interested in how philosophy helped Spinoza, Hume, Kant and Wittgenstein in their lives – and deaths – as in what they wrote.  (I wrote a book about them.)  And their lives are chock full of interest for me.  The lives of great people always are – biography is my chosen entrance into different fields of learning or experience – including the law.  We often wonder if philosophy might affect how other people act.  G E Moore was both respected and loved in England.  People like Russell and Keynes found his Principia Ethica to be a source of instruction on how to live.  Moore said that ‘verbal questions are properly left to the writers of dictionaries and other persons interested in literature; philosophy….has no concern with them.’  I had thought that English philosophy concerned itself with the meaning of words – and little else.  But Moore said that ‘good is undefinable.’  ‘…good is good and that is the end of the matter….good is a simple notion; .just as you cannot, by any manner of means, explain to anyone who does not already know it know what yellow is, so you cannot explain what good is.’  How many other terms are as undefinable as this one?  ‘Bad’?  If I say that  a meat pie or a rendition of Nessun Dorma or an afternoon siesta is ‘good’, can I resist explaining myself by saying that ‘good is good and that is the end of the matter’?  I am confident that this difficulty is not mine alone.  It does make you wonder if philosophy is still of any use.

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Hannah Arendt had a very powerful mind and insight.  She said:

You know that the left think I am conservative and the conservatives sometimes think I am left or a maverick or God knows what.  And I must say I couldn’t care less.  I don’t think the real questions of this century will get any kind of illumination from this kind of thing.

There should be more of it.  Not least in those Australian newspapers that claim to be conservative.

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At a wine-tasting course, the tutor asked us to taste wines and then take the mask off the bottle, and pass it round so that we idiots could compare notes.  One night we got a rare highlight.  ‘Did you say that this was a distinctive Hunter Valley Semillon?’  ‘Yes.  It is something they do so very well.’  ‘That’s curious.’  ‘Why do you say that?’  ‘Because the wine-maker thought it was a chardonnay.’  That left us idiots to smirk.  Another tutor sported what looked to be an expensively rouged nose.  ‘What would you choose to eat with this wine?’  ‘Why do you have to eat anything with it?  ‘Madam – a woman after my own heart.’  I did some tastings at Oxford – for a fee that could not be characterised as inconsequential.  Two undergraduate types made the awful mistake of making assumptions about the experience of the group.  My class included a gorgeous psychiatrist from Paris, a London partner in a leading international accounting firm, and a Californian wine maker.  When we expressed a lack of enthusiasm for their samples, one of them told me I was looking for ‘new world’ wines.  ‘I could not give a hoot where it comes from as long as I can feel its strength on my palate.’  Or grumpy words to that effect.  I suspect that that response was new world too.

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For about my first five years at the Bar, I tutored and then lectured in law at RMIT.  The lectures were I think at 8.30 am, which meant that I would have to make arrangements if I had to be at, say, Ferntree Gully or Eltham by 10 am.  For trials in the County Court or Supreme Court, you would see the client at least a day before the hearing.  The case may have been started a year or so beforehand, but it was remarkable how often that it was only after you had been with the client for an hour or so that you found out what the point of the case really was.  Appeals to the County Court were rehearings of what had occurred before a magistrate – or the justices of the peace.  You would ring your clerk to find out which judge you had drawn – and sometimes you would advise the client to abandon the appeal since the judge you had drawn was renowned in the worst way for threatening to increase the penalty – and then executing on that threat.  On my first trial in the Supreme Court, the client was seeking repayment of a loan made many years ago.  I saw the client, who lived on King Island, some time before the hearing.  He was a bit vague about why he had not pressed the defendant for repayment years ago.  The defendant was a notorious criminal.  He was on a bond that forbade him to come within forty miles of the GPO in Melbourne.  At about 10 am on the morning of the hearing, I got a long distance phone call from the client.  He was at home and not budging.  I could hear the fear over the phone.  Mr Justice Lush asked my opponent if he had heard the name of the defendant – it was Jack Twist – from another jurisdiction of the court.  I forgot that I had subpoenaed the police file on Twist – until a nice man sitting at the back of the court showed me a bundle that would have accommodated more than one wheelbarrow.  A large part of your education at the Bar comes to learning to live with a lottery, but this was a lesson in a different form of chance.  The law is nowhere near being a perfect instrument.  It does after all depend on us.

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My preferred mode of cooking is by casserole – the big French blue Le Creuset bowl with lid or the ridiculously expensive red saucepan and matching pan-lid.  You just braise the ox-tail, shanks or osso bucco in a little olive oil, and then do the same with vegetables and herbs in red wine and stock and cook for about four hours in a slow oven.  The sauce should finish with a golden meniscus.  In each case, the meat should fall comfortably off the bone.  The smaller ox-tail portions make for a wonderful ragout to have with gnocchi.  I use a generous spread of herbs from the garden, and I have been known to add some Bonox to the ox-tail.  The last goes well with a big shiraz from say McLaren Vale, the Grampians or the Hunter Valley (say, the Cricket Pitch).  The Wolf was very fond of all those meals – he was guaranteed a portion to clean up with and a bone.  The red was not so good for him.

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The law consists of trying to work out what may be said or done in the future by looking at what was said and done in the past.  My addiction to history, and legal and constitutional history in particular, is in part my response to that simple truth.  I want to be there when the springs of Runnymede meet those of the Campaspe.  I idolise legal historians like Maitland, and I bought a whole set of the Year Books – our first case books from the Middle Ages – so that I could better understand Holmes’ The Common Law – that I read on average once a year.  I bought a set of Holdsworth, and State Trials, and whole shelves of ancient classics and legal biography.  I have given that library to the Victorian Bar, and there are times when I miss the comfort of its tactile presence.  The Ford Lectures offer their own form repose.  Today, English Feudalism, 1066 to 1166 turned up.  Professor Stenton spoke with great authority.  (So did his wife.)  These lectures were given in Hilary Term, 1929, at Oxford.  You did not then feel the need to offer a translation of the Latin.  And you know you have a heavyweight when he queries Maitland, or in a footnote he says that a charter he quotes was ‘obviously written by an illiterate clerk, and its bad grammar suggests that the rarity of early baronial charters of this type is due chiefly to the rarity of competent draftsmen in the Norman period.’  Quite so.  And for those of us sloppy enough to miss the grammatical solecisms, we get ‘[sic]’ – thrice.  But what caught my eye was that ‘whatever else a baron may have been, he was his lord’s counsellor…the quality enabling a baron to play his distinctive part in the life of the honour [estate] to which he belonged was not derived from wealth or rank alone.  It can best be described in modern terms as a sense of responsibility, the power of giving a reasoned opinion for his lord’s guidance….It was essentially the power of using experience and elementary legal knowledge in the interest of a lord.’ 

*

Well, that may I suppose be a rosy view, but it does look like a very English rosy view – and of a time when the English were coming to grips with what Blackstone called ‘the rude shock of the Norman Invasion’ – another very English proposition.  But I find this learning to be a great comfort – especially at a time (October, 2020) in Washington, Westminster and Canberra, when standards of sense and decency have gone clean out the window – for the want of a ‘sense of responsibility, the power of giving a reasoned opinion for his lord’s guidance.’  This observation calls to mind two propositions about the story of our English ancestry – and that of our history that comes from the forests of Germany.  The first is that if you want to understand the history of England, look upon it as the story of a moderately sized and competent cricket club.  The second is that the core of the feudal structure was elemental – you look after me and I will look after you – one takes homage and gives allegiance.  That also precisely defines the modus operandi of the Mafia.  Just picture Marlon Brando stroking the cat when the victim of injustice not dealt with by the law asks the godfather to be his friend.  And, homage given, the godfather says that one day that debt will be called up.  Protection then was not a racket – it was a way of life.  Professor Stenton concluded his book with a discussion of a remarkable charter between two great magnates in about 1150.  One covenants ‘on his Christianity’ and ‘saving the faith due to his liege lord’ on the circumstances of when one ‘goes against’ another –  the magnates limited their own independence in order that anarchy might be avoided.  It was like Mafia dons ‘making the peace’ – as if there were no central government; BYO law and order.

Passing Bull 251 – Comparing cases and playing the man

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‘We may have made some mistakes financially, but your lot trashed the whole economy.’  This is standard fare in politics.  Playing the man – the Latin is ad hominem – is not meeting the argument.  It is a recognised fallacy.  But comparing one case to another may be revealing, and not just as showing hypocrisy on the part of the person putting an argument.  Comparing cases, and distinguishing them, is part of the lifeblood of debate and it is essential to the process of the common law.

This came to mind as I read a biography of Von Karajan by Richard Osborne.  Karajan had joined the Nazi Party and had to be cleared by the De-Nazification Tribunal.  Furtwangler faced a similar issue.  Both were attacked – in my view unfairly.

Karajan had said he made a mistake in joining the party. I don’t know why – he might have been unemployable if his ‘patriotism’ had been put in issue.  Eight million Germans signed up.  That was not in itself a crime.  Mr Osborne points out that David Oistrakh joined the Communist Party.  Does that mean he supported the crimes of Stalin?

Way back to the time when pioneering British socialists Sidney and Beatrice Webb excused the mass murder of the kulaks, the peasant landowners in Stalin’s Russia, on grounds of a pressing need for greater agricultural efficiency in the Soviet Union, there has been a long history of toleration – even on occasion justification – of ‘Uncle Joe’ Stalin’s acts of genocide that would be unthinkable in the case of Hitler’s.

That is an illuminating comparison.  As is the reference to the ‘raucous’ support of Hitler given by Karl Böhm, ‘the shrewd lawyer with the peasant’s instinct for survival.’  ‘Anyone who does not say a big YES to our Führer’s action and give it their hundred per cent support does not deserve to be called a German.’  Neither Karajan nor Furtwangler got even close to that, and if you looked hard enough you might find something unseemly in the dressing table of the ensainted Elizabeth Schwarzkopf.

Edmund Burke said ‘I do not know the method of drawing up an indictment against a whole people.’  The Nazis claimed to do just that.  Robert Jackson (later a U S Supreme Court Justice) said at Nuremberg:

We should also make clear that we have no purpose to incriminate the whole German people…..If the German populace had willingly accepted the Nazi programme, no storm troopers would have been needed….The German no less than the non-German world has accounts to settle with these defendants.

Mr Osborne tells us that Yehudi Menuhin shared this view. 

In 1949, a tour of Chicago by Furtwangler had to be called off in the face of death threats.  The President of the Chicago group issued a most dignified statement.

….I was confident however in my belief that all of us who have made great sacrifices to bring the war to a victorious conclusion had done so in the hope that our victory would above all else bring about a world attitude of tolerance.  To find that this attitude of tolerance has not yet been realised and accepted by many people , including even some outstanding artists, is tragic evidence of the fact that our victory as yet has not been complete.

The whole catastrophe started with an ascription of guilt to a whole people.  Guilt by association is the first refuge of the coward.  And we may want to reconsider our views on moral cowardice in view of the moral landslide now on show in the Republican Party.

Bloopers

Apollo said in a statement it was ‘firmly committed to transparency.’  It added: ‘Leon has communicated directly with our investors on this issue and we remain in open dialogue.’

Financial Times, 23 October, 2020

The dreamtime of a ghost-seer – III

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A stream of consciousness of an ageing white male – and a member of an elite, to boot

Reminiscences of a barrister in autumn

III

So much in all our lives depends on chance.  You might stumble over something that leads you to see the world through different eyes.  In about, I suppose, 1960, I watched an interview on the ABC with Professor Andrew Boyce Gibson.  Gibson was the Dean of the Arts Faculty at Melbourne University.  He would lecture me in philosophy at Melbourne University in 1964.  He just looked to me to be wise and kind.  .  He said he had learned to speak French so that he could read Descartes in its original form.  He said that this had given him a new window on the world.  That made me wonder how much our view of the world is shaped by our language.  Later, I would ask if that was not the main question facing philosophy.  Gibson was a Christian apologist.  (As were my other philosophy lecturers in each of the next two years.)  A rather preppy young interviewer got into high flown language about the role of the Church in modern industrial society.  With great calm, this very wise man said: ‘The problem is that the whole thing began in a carpenter’s shop and has just got a bit out of hand since.’  That seemed to me then, and it still does now, to sound like true wisdom.  Kant said that some things had a ‘fancy price,’ but that each of us has a worth or dignity above price merely because we are human.  Wittgenstein said that about some things we must be silent.  He also said that during the war, trains carried a sign: ‘Is this journey really necessary?’  A Greek philosopher said that we do not live to see our own death.  For some reason, that struck a very comforting note for me.  (I am not sure whether it was he who said that you never step into the same river twice.)  In War and Peace, Prince Bolkonsky said that when we die, we either get all the answers or we stop asking the questions.  Sir Lewis Namier referred to a need of plain human kindness, and ‘restraint and the tolerance that it implies.’  Hannah Arendt said ‘Every government assumes political responsibility for the deeds and misdeeds of its predecessor…every generation, by virtue of being born into a historical continuum is burdened by the sins of the fathers as it is blessed with the deeds of the ancestors.’  Finally, in burying his grandmother, Dietrich Bonhoeffer said: ‘She came out of a different time, out of a different spiritual world, and this world will not shrink into the grave with her.  This heritage, for which we are grateful to her, puts us under obligation.’  If I was asked what proposition in our past best expresses my hope for the world, that one would take a lot of beating.  There is about it an aura of nobility.

*

Books can furnish the house as well as furnish the mind.  I collected fifty of what for me were the great books or writers either in literature or affairs that were either part at least bound in leather or fitted with a slip case.  About half of them have been rebound by Helen Williams, a local bookbinder. ( Well, that is at least some contribution to the economy.)  There are books published by the Folio Society or those sumptuous American products from people like the Franklin Library or Easton Press.  I have added three more volumes about great books, so that there are now two hundred books that stand for something that counts in my life – apart from the novels, histories, plays and poems, there are books about fly fishing, wine, Barassi, cooking, Jussi Bjorling or Maria Callas, cricket, Ferrari or golf – and so on.  They are gorgeous to look at and they almost demand to be taken out and fondled.  For better or worse, they are the evidence of my journey here, and a source of real comfort – especially since we put the Wolf to sleep.

*

It is curious that Benjamin Britten and Tim Storrier had a fascination about water.  Britten brought it to life musically in two of his operas, Peter Grimes and Billy Budd.  You can just about taste the salt water in each.  A dealer at Australian Galleries told me that Storrier dealt with the fundamental.  He did a series of paintings of the sea with ladies’ hats.  He was also fascinated with fire.  I have one of his that is a blazing pyramid.  Would that I could afford one with a television box standing before a blaze in the bush – with a picture of the sea on the screen.  I have one of his firelines and a drawing of a saddle.  He could obviously draw –as could Jeffrey Smart and Fred Williams and others whose works I have – just works on paper, but theirs.  Storrier looks to me to have a patrician streak.  I went to hear him speak at the opening of a swish new gallery in High Street, Armadale.  He said that asking an artist to open a gallery was a bit like asking a cow to open an abattoir.  The owners did their best to put on masks of affability.  I was the art partner at Blakes, and I enjoyed it immensely.  It allowed me buy stuff I could never afford – and defend the acquisition for the occasional Presbyterian Philistine.  It also gave me the chance to have some fun.  I could go into a gallery on my way to or from gym looking like a bum.  And being looked down upon.  Until I responded to their query ‘Can we help?’  ‘Perhaps.  I am the art partner of an international law firm that is leasing six floors of a landmark building in Collins Street, and I have been instructed to acquire appropriate works of Australian art.’  The response was like that described by Banjo Paterson.  ‘There was movement at the station for the word had got around…..’(Did you know that Banjo was a lawyer?  And a good looking one, to boot.)

*

When I started at the Bar in 1971, I was almost completely dependent on my clerk, Ken Spurr, for briefs.  Most of them were in the Magistrates’ Courts.  There were three main categories of briefs – crash and bash (civil claims for motor car accidents); police prosecutions – mainly traffic; and maintenance cases between husband and wife.  We are speaking of a time about half a century ago – and I suspect that nearly all of that kind of brief has now gone by the wayside.  Most magistrates then had been clerks of courts, and were firmly on the side of the police – some of whom congregated in the clerk’s office before court.  It was almost impossible to get a magistrate to make a finding against a copper.  Some of them liked to have a drink with counsel over lunch at a bar.  One of them was addicted to Autumn Brown.  The grog did not soften them up after lunch.  It made sense to me to start at the bottom, and over time I noticed a kind of aloof distraction in those barristers who had the connections or front to avoid that kind of stuff.  Those briefs were marked at about $20 each.  And I thought that if I could get, say, three of those in a week, I could keep my head above water.  You used to drive out to a suburban court, and meet the punter there at about 9.30 am.  And then you would spend your time praying that you would get on.  There was nothing worse than waiting round all day at, say, Ferntree Gully and not getting on.  There was then the dispiriting drive back to the city – without a cracker to show for all that time out of your life.  You were not helped by bromides about cab ranks or swings and roundabouts, but this was a priceless way to learn about both the lottery and the pain of litigation.  You may not have wanted to say this to the punter, but the best way to learn was to lose – and lose both hard and often.  No sane person wants to embark on this kind of public raffle, and you realise that that your real role is to get the punter out of the clutches of the process as quickly and decently as possible.  As time goes on, you could get consulted before the proceeding was issued – and you could help deal with the hurt by pointing out that the cure was likely to be a lot worse than the disease.  It appals me now to go to mediations where counsel has been involved from the beginning – and you and they are seeing the punter for the first time.  I cannot understand how counsel can say that the course the client is pursuing was only embarked on after counsel took into account all relevant considerations.  What do you do if when you meet the punter, you think either that they will not be able to bear the stress of litigation – or be believed?  Perhaps that is why I wonder why of all the libel actions I have mediated over say the last five tears, I can hardly recall one that I would have recommended –  but I can recall a lot that were obviously too dicey to chance your arm in what Sir Owen Dixon called the temple of justice.

Passing Bull 250 – Inanity writ large – and worse

/ Geoffrey Gibson / 1 Comment

One Australian newspaper today posted two comments on the re-election of Jacinda Ardern.  One was from the Economist.  From a respectable newspaper, the comment was both sensible and gracious.  That from the I P A was the direct opposite of both those qualities.  It starts this way.

Nobody skewered Barack Obama during his presidency like legendary comedian Dennis Miller.  ‘It’s not all that dramatic with me and Obama,’ Miller once told his audience.  ‘It’s not racist, it’s not classist, it’s not ideological.  It’s just that he is an inept civil servant.  He’s the guy at the toll booth who’s constantly giving out the wrong change.’

The same could be said about New Zealand Prime Minister Jacinda Ardern.  She’s a brilliant politician, but has been a grossly incompetent administrator.

That was the beginning.  We know that the IPA people cannot tolerate Democrats in the U S or anyone to do with Labor here in Australasia or the UK.  We also know that where a lightweight says that he is not being A, B or C, there is every chance that he is certainly being at least B or C.  And these comments about Obama are certainly premised on both class and ideology – in spades.  We can be as certain of that as we can be that those remarks are as tasteless as they are both revealing and inane.  It is a beautiful instance of my rule of thumb that if someone gets up the nose of people at the Murdoch press or the IPA, they are doing some good.  The revelation comes from the derision of anything Democrat or Labor.  Not many presidents get ranked with toll booth attendants.  A former IPA person who works for Murdoch said the other day that it would be a tragedy if Gladys Berejiklian lost office, and Daniel Andrews did not.  The non sequitur is painful, but the ideological antipathy is palpable.  The article concludes.

The only hope for New Zealand now is that, whatever horrifying plans that Labour has in store, Ardern is just as hopeless at actually implementing them in her second term as she was in her first.

What can you say?  It’s not that they prefer Trump to Obama and Morrison to Ardern, it’s that their inanity leaves them with no sense of grace at all.  We are left with the question that that Boston attorney – counsel for the U S army – asked of Senator Joseph McCarthy.  ‘Have you no sense of decency at all at long last?’

You will see that this is number 250 in this series on contemporary bullshit.  It’s sad that this entry is so gross.

Bloopers

Pence’s polished, reasoned and compelling performance would certainly reassure any viewer remotely inclined to support Trump that this is a substantial administration on the right policy track.

The Australian, 9 October, 2020, Greg Sheridan

The US left hates the history and institutions of America itself.

The Australian, 14 October, 2020, Greg Sheridan

Q E D.

Here and there – Rage by Bob Woodward

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It may have been a mistake for me to buy this book.  We have seen it all before and it is too painful to recall.  That is, I suppose, the whole problem.  In more than 300 pages that are meticulously reported, there are probably 300 acts of this President for which the CEO of a public company would be fired.  But so what?  We have seen it all before.  But at least we are reminded  – especially the Trump supporters in this country – that it is impossible to imagine a person worse placed to hold any form of public office – let alone that of President of the United States.

So, I could only bring myself quickly to scan it.  That’s a great shame, because this is a well kept a diary of a sad national failure.

The CIA never figured out conclusively who wrote and crafted Kim’s letters to Trump.  They were masterpieces.  The analysts marvelled at the skill someone brought to finding the exact mixture of flattery while appealing to Trump’s sense of grandiosity and being centre stage in history.

I expect that Kim, like Trump, has an ego that leaves no room for God, but Kim, like a few other cold killers, could go down on his knees each day and give thanks that Providence has given him this rude, loud, weak spoiled child – whom he can walk over at will.

A devout Catholic, Redfield had gone through a religious awakening during a private 10-minute conversation with Pope John Paul II in 1989 and believed in the redemptive power of suffering.  Redfield prayed every day, including a prayer for President Trump.

We thought the Evangelicals were the problem.  The whole mess has been very bad for religion.  For that matter, so has most of the history of the U S.

‘Don’t mock Kim’, Trump repeated.  ‘I don’t want a fucking nuclear war,’ he said again.  He returned to the new nuclear weapons he had.  ‘I have such powerful weapons.  They’re so powerful you wouldn’t believe it.  You wouldn’t even put them in your book.’

Those who think Trump is not a fool might answer this question.  Could anyone but a fool have said that on the record to the most respected reporter on earth?  And it is so utterly characteristic.

You do not have to be an expert in managing people to know that about the worst mistake a CEO can make is to have someone outside the hierarchy available to counsel the CEO on how to deal with those reporting to him – behind their backs – especially if that person is very close to the CEO – like being the husband of his daughter.  The trouble with Jared Kushner is that he is inadequate enough not to see how inadequate he is, or how much damage he is doing to the structure of management.  Messrs Mattis and Fauci are faultless leaders in their spheres.  One look at them tells you that these people understand and embrace public service – in a way that the Trump family could never understand.  How could decent people like them survive dealing with someone like Trump and his family?

The book confirms my worst fears about Kushner.  Kushner told Woodward – again on the record – that if he wanted to understand Trump, he should read four texts.  One of them was Alice in Wonderland.

When combined, Kushner’s four texts painted President Trump as crazy, aimless, stubborn and manipulative.  I could hardly believe anyone would recommend these as ways to understand their father-in-law, much less the president they believed in and served.

The worst is yet to come.  You thought Trump had got rid of his best advisers.

‘And by the way,’ Kushner added, ‘that’s why the most dangerous people around the president are overconfident idiots.’ It was apparently a reference to Mattis, Tillerson and former White House economic adviser Gary Cohn.  All had left.  ‘If you look at the evolution over time, we’ve gotten rid of a lot of the overconfident idiots.  And now he’s got a lot more thoughtful people who kind of know their place and know what to do.’

Trump is a spoiled child who never learned anything better.  Those Republican grandees who have enabled him do not have that excuse.  Their time will come in the blackest pages of history.

Perhaps we should all read this book to recall why.

Passing Bull 249 – Mixed waffle

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Trump is a hot but threatening politician, exuding a primitive albeit vicious power.  Biden, by contrast, is a cool politician, a decent man, but, compared with Trump, he looks weak, even fragile.  This election is a civil war over what constitutes virtue.

The Australian, 2 September, 2020, Paul Kelly

The last politician I can think of who used the word ‘virtue’ in a political context was Robespierre – and he did not meet a good end.  But if this election is between a man who is decent and one who is not, ‘virtue’ could know only one winner.  You might get more sense from Superman.

‘Our position is that our participation agreement includes a non-disparagement clause,’ the minutes say. ‘A reactive media statement will be prepared if required.’

The Guardian, 9 September, 2020

It is not surprising that they got caught.

Thales, whose roots stretch back more than a century, had come up with a statement of its purpose. ‘It is a statement that took six months to write,’ Mr Caine wrote on LinkedIn, adding there had also been six months of consultations with nearly half of the group’s 83,000 employees. The result was just seven words: ‘Building a future we can all trust.’  Staring at them, I thought, bingo! Thales had pulled off a trifecta in the corporate twaddle stakes. A group that makes everything from train ticket systems to drone software had spent hours of company time on a statement so devoid of meaning that it could have come from untold other firms.

Conservative MP Desmond Swayne claimed this week that Prof Whitty and Sir Patrick were engaged in ‘project fear’.

Financial Times, 30 September, 2020

What if there is something to be afraid of?