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A rotten state

/ Geoffrey Gibson / Leave a comment

The desolate prince was right when he described the state of Denmark as ‘rotten’.  The Compact OED gives us ‘rotting or decaying…. morally or politically corrupt.’  And there was a lot more to that decay and corruption than an ‘o’er hasty marriage’ and binge boozing behind the battlements. 

We can see signs of this rotting in governments generally in what we call the western world, but none more so than in the United States.

In her most enlightening book, Autocracy Inc, Anne Applebaum traces the similarities between the current regime in the U S, and those autocratic regimes like China or Russia, or ‘illiberal democracies’ like Turkey, Malaysia, India, the Philippines, or Hungary.

They share a brutally pragmatic approach to wealth.  Unlike the communist and fascist leaders of the past…the leaders of Autocracy Inc often maintain opulent residences and structure much of their collaboration as for-profit ventures.  Their bonds with one another, and with their friends in the democratic world, are cemented not through ideals, but deals – deals designed to take the edge off sanctions, to exchange surveillance technology, to help one another get rich…. Autocracy Inc offers its members not only money and security, but also something less tangible: impunity.

Does that not describe the Trump malaise in the U S?

After referring to ‘the fascist belief in the liberating power of violence’ and describing the feeling of success and calm after the fall of the Berlin Wall, Anne Applebaum says:

Everyone assumed that in a more open, interconnected world, democracy and liberal ideals would spread to the autocratic states.  Nobody imagined that autocracy and illiberalism would spread to the democratic world instead.

Later, the author refers to the remarks of a U S senator who said that ‘the same techniques of concealment used to facilitate offshore thugs and criminal activities also facilitate the political activities of domestic special interests.’

The book prompts discussion of the following – the relationship between political and financial dishonesty; the fundamental fallacy that underlies every aspect of the Trump administration; the limitations of the notion of kleptocracy; and the liability of the profiteers to account for their obtaining profits from their offices.

Trust and probity

People who hold office in government are in a position of trust owed to those who put them there.  They were not appointed or elected to look after themselves, but to serve the interests of others.  If they choose to break the rules about the limitations on their political powers, then they may just as easily break the rules about how they help themselves financially.  If they are dishonest politically, why not be dishonest financially?  If you are rotten about the rights of others, why not be rotten about their money?

There is nothing new in the notion that those in charge of the most austere political regimes are also likely to be the most corrupt financially.  Here from my schooldays is J B Bury, the bible on ancient Greece, on Sparta.

…..  the ‘communism’ which we observed in the life of the citizens was only superficial.  But it was specially provided by law that no Spartan should possess wealth in the form of gold or silver.  This law was at first eluded by the device of depositing money in foreign temples, and it ultimately became a dead letter; Spartans even gained throughout Greece an evil reputation for avarice.  By the fourth century, they had greatly degenerated, and those who wrote studies of the [Spartan] constitution contrasted Sparta as it should be and used to be with Sparta as it was.

The Spartans were not alone in having an evil reputation for avarice.  Greed was good generally – just look at Timon of Athens.  Bury remarks that Solon of Athens introduced reforms that ‘hit the rich hard,’ but that he was ‘too discreet to attempt to interfere seriously with the money market by artificial restrictions’. 

But it does seem that otherwise austere regimes cause its members to resort to graft as a way of life.  Does anyone believe that the rulers of Burma or Iran or Venezuela have clean hands?

Yet for centuries, Oxbridge clung to the myth that ancient Athens and Rome were civilized.  The wealth of each was built on slavery and the protection racket called empire.  Both slavery and empire disqualify the ancients from being called civilized. 

It was not until England shed its empire that it saw the ancient world for what it was.  Neither Athens nor Rome had ever dreamed that each of us is born with a dignity or worth merely because we are human – the sine qua non of civilization after the teaching of Jesus of Nazareth or Immanuel Kant.

For many, including me, The Republic of Plato is a blueprint for fascism.  But if we go to authentic fascists like those of Nazi Germany, we find real graft and corruption on a huge scale.  Put aside the dog-like loyalty of people like Hess and Rohm – Hitler, Goring and Himmler wallowed in mansions and riches, much of it the product of what the Romans called rapine.  Indeed, the conquering Roman armies lived off rapine – vae victis – in a manner that would only be surpassed by Attila the Hun, and Napoleon the Corsican.

It is not surprising that people cannot silo their dishonesty or greed.  That is why I take the view that we should be wary of dismissing as irrelevant the failures of those in public life that may be characterized as ‘private’.  If a person in a position of public trust cannot be trusted by those close to them, where does that leave the rest of us? 

That view may sound old fashioned.  That is not of itself a problem for most of us – if, for example, you also believe in having a trained independent civil service, or two political parties both capable of serving equally in government and opposition.  Each of those has gone clean out the window here in the last two generations.

So, that is the first point.  People in power who break the rules of government may be just as likely to break the rules about crime generally, and enrich themselves at your and my expense.

The present Trump regime stands for every part of that proposition.  Its own contribution is to be more brazen – shameless – than any of those who came before it – starting in the garden of Eden.

Government and business – and profit

The second point is the fallacy that underlies the whole Trump administration.  About forty years ago, some business people in Melbourne thought it would be simple to save struggling football clubs.  Just run them like their business.  They were dead wrong, and they sadly failed in their mission. 

Trump makes the same error.  He thinks he can run the U S like a business.  He is wrong. 

A trading corporation is formed and managed to return a profit on its business for its shareholders. 

That is not what the United States was formed for.  Its founders may have been grandiose, and hypocritical, but their stated object was not to make money.  Putting to one side the dreams of the Puritans, the aim of the founders was to deliver and ennoble the new Promised Land:

We the People of the United States in order to form a more perfect Union, establish Justice, ensure domestic Tranquillity, provide for the common Defence, and general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity ….

The congeries of slave owners who had their own self-evident truths were not after profit, but justice, tranquility, and general welfare. 

Those aspirations are pure moonshine for the New York property developer and his rough mates.  He is in it for profit and fame, and that contradiction undermines every part of his administration.  To adopt the phrase of Anne Applebaum, he puts deals way above ideals. 

Although he did not write one word of the book, Trump is obsessed with ‘the art of the deal,’ and his coming out the winner.  This is a different universe to that of Lincoln, Roosevelt, or Truman, whose one aspiration was to serve the people of the United States – ‘of the people, by the people, for the people.’  Trump does not believe in God, but if he did, he would surely know that God did not create him to serve the people.

It follows that this presidency stands on an obviously false premise.  But it gets worse.  The first object of government is to keep the peace – to ensure domestic tranquility and general welfare.  The laws of the union about guns make the first impossible, and the opposition to the Welfare State, that is pursued everywhere else in the West, make the second impossible.  The United States has not achieved its stated objectives.

Trump must be taken to have admitted that the United States has not ensured tranquility for Americans.  He says he should send the federal army into cities that have let crime run amok.  That would be unthinkable in Western Europe – or, say, Australia or Canada.

Because Trump is so egocentric, his political responses are often so personal.  During the Dark Age, the justice of the state was created to replace the vendetta.  Trump now uses – or abuses – the organs of the state to pursue his own personal and political vendettas, and to give succor to those whom he persuaded to try to overthrow the Constitution.  We therefore have a fearful combination of Alice in Wonderland and Nineteen Eighty Four.

There is something more about Trump’s infatuation with ‘deals’ – as when he told President Zelensky that he, Zelensky, did not hold the right cards.  To which the obvious response was – this is not a card game. 

But deals are games for Trump, and he is a very bad loser.  (Witness the Nobel Prize, a loss he suffered in full war-like mode.)  

People do not come back for repeat business with Trump.  Good business people know that the best ‘deals’ are contained in documents that are put on file and left there.  Ongoing arrangements turn on trust – and Trump’s whole career in business suggests he cannot be trusted. 

You can, if you wish, start with two admitted facts – he avoided national service, and he avoided paying tax.  In any other western nation, his history on those grounds alone would disqualify him from being elected to any significant public office.

So, there is something unsettling, is there not, about the following proposition?  ‘Jack and Jill went into politics – and then Jack and Jill got filthy rich.’

Kleptocracy

That leaves the kleptocracies discussed at length in Autocracy Inc.  Trump puts Mammon before God every time.  (His ego has no room for God.)  And he is making millions for himself and his family from the public offices he holds.  (I could be typing this under a framed cartoon of Trump as Superman.  He sold the cartoons.  The proceeds did not go to charity.  The very idea would be absurd.) 

Words like kleptomania come from the Greek kleptos meaning ‘theft.’  Wikipedia says:

Kleptocracy is different from plutocracy (rule by the richest) and oligarchy (rule by a small elite). In a kleptocracy, corrupt politicians enrich themselves secretly outside the rule of law, through kickbacks, bribes, and special favours from lobbyists and corporations, or they simply direct state funds to themselves and their associates.

That is not Trump.  His schtick is not theft.  That is a crime.  But Trump’s profiteering certainly looks unlawful and dishonest.

Under our Westminster system, ministers of the Crown, the members of the executive government, hold positions of trust.  As the great English legal historian, Maitland, said in another context, ‘for every exercise of the royal power, some minister is answerable’.  Civil servants are servants of the Crown and the people, and being in the same position as employees, they owe obligations under the general law of loyalty and good faith to those whose interests they serve.

It is not the Westminster model, but the rule of law that regulates the way that our governments ministers discharge their obligations under the law, at least to the same extent that we regulate the way that directors of public companies are obliged to act – in the interests of shareholders, and not themselves. 

That is very much the way of the common law in the view we take of the proper role of all those in government.  It is not to the constitution that we ordinarily look in order to control those who direct government, in much the same way that we seek to control those who direct business.  Parliament looks after its own, but otherwise these are matters for our general law – the common law and the statutes of our parliaments.  The rationale is the same.  These people are where they are for us, and not for themselves.

Unjust enrichment or unconscionable profit?

The ministers are, therefore, subject to legal duties owed to those who put their trust in them.  As such, the Ministers must put the interests of the public before their own; they must act toward the public with the utmost good faith (uberrima fidei); they must avoid any external obligation that conflicts with their duties to the public; and they must account to the public for any financial benefit they derive from breaching any such obligations.

There is a kicker for grifters in that last remedial proposition.  We are not constrained to talk about cases where the fault of the agent has led to loss of the principal.  If the principal happens to score a win, the agent may get the windfall.  The liability to account under our laws does not turn on dishonesty. 

The duties I refer to are customarily called ‘fiduciary’.  That is a very slippery word.  It is not understood by most lawyers, let alone those who are appointed as Ministers of the Crown.  It is a standing invitation to circular reasoning – he has to account, because he is a fiduciary; because he is a fiduciary, he has to account. 

But the obligations owed by public officers (or public servants) to the Crown (the Commonwealth) are described as ‘fiduciary’.  And the law is clear that the ordinary relationship of a contract of employment entails that the employee is subject to fiduciary duties to the employer.  It follows that those serving the Commonwealth, including Ministers of the Crown, owe these duties to the people of Australia.  They are accountable to the people of the Commonwealth for any failure to observe those duties and are liable to account to those people for any profit they derive from doing so.

Now, there may I suppose be nuanced arguments about the extent of these duties for public officers, but it would be difficult for ministers to say that they did not have to act in good faith, or that they could make and keep a profit arising from their position without seeking some form of authority – or without disclosing it.  Such a denial would of itself lead to loss of office.

This part of the law, generally called equity, turns on conscience, rather than fault, and it provides a remedy for conduct it regards as unconscionable.  And it does so in terms that would shock those shysters who are wont to clip the ticket, and with much greater thrust than our regulators can summon up.

Here are extracts from two texts of undoubted authority on equity.  The first is the standard text of Maitland.

….wherever a person clothed with fiduciary character gains some personal advantage by availing himself of his situation as a trustee, he becomes a trustee of the advantage so gained…the rule includes persons who are not trustees properly so called, but all those who stand in what is called a fiduciary position …it is a general principle of equity that if an agent acquire any pecuniary advantage to himself from third parties by means of his fiduciary character, he is accountable to his employer as a trustee for the profit he has made.  

The second is the great American text of Story.

But by far the most comprehensive class of cases of undue concealment arises from some peculiar relation, or fiduciary character, between the parties …the relation of client and attorney and principal and agent.  In these and the like cases, the law, in order to prevent undue advantage from the unlimited confidence, affection, or sense of duty, which the relation naturally creates, requires the utmost degree of good faith (uberrima fides) in all transactions between the parties.  If there is any misrepresentation, or any concealment of a material fact, or any justsuspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void ….

In short, it may be laid down as a general rule, that a trustee is bound not to do anything which can place him in a position inconsistent with the interests of the trust, or which has a tendency to interfere with his duty in discharging it.  And this doctrine applies, not only to trustees strictly so called, but to other persons standing in like situation.  … Besides, agents are not only responsible for a due account of all the property of their principals, but also for all profits which they have clandestinely obtained by any improper use of that property.

Story originated in the U S.  These citations come from an English edition.  But I am not qualified to say what may be the American law relevant to the millions upon millions Trump and his family are milking from the people as a result of his use, or abuse, of public office. 

Nor do I know whether abuse of, or misfeasance in, public office gives rise to a cause of action there, or whether our law of unjust enrichment may apply.  (That law derives from the decision of Lord Mansfield given before the United States was born, in Moses vMacferlan, and which was founded simply on the ‘ties of natural justice’ and ‘the equity of the plaintiff’s case’.)

It may help to mention two English cases where people have had to account for profit they made out of a relationship where they had to act in good faith.  Only one case involved dishonesty. 

In Reading v Attorney- General, an English sergeant during the war made a large amount of money by using his position and uniform to assist smugglers.  The court held that the assets of which the sergeant had control, or the facilities which he enjoyed, or the position which he occupied, were the real cause of his obtaining the money, and he was therefore accountable for it to his employer – at common law.  It mattered not that the employer had not lost any profit, nor suffered any damage.  (Sadly, our texts on equity are reluctant to discuss this decision at common law – given at the highest level.)

Previously, the same court (the House of Lords) in Regal Hastings Ltd v Gulliver had ruled that where the directors of a public company had, as if by accident, derived a profit from a corporate restructure, they were liable to account to the company for that profit.  It arose while they were discharging a fiduciary obligation, and that liability did not depend on any finding of fraud or bad faith.  ‘The profiteer, however honest and well intentioned, cannot escape the risk of being called to account.’ That is not comfortable reading for company directors.  Or servants of government.

So, our law makes not only the greedy pause before feathering their nest.  For present purposes, we need not stay to see what particular legal rubric – what we call common law or equity – that the court applied, since all have moved on since.

Under our laws therefore, Trump and his family would be liable to be sued for millions.  I do not know what is the position in the U S. 

It is easy to hear the response of Trump.  ‘I have not even been furtive; I am the most brazen hero of the Golden Age since Achilles.  In any event, I can do what I like since I am the President of the United Sates.’  Neither could be a defence, and either should inflame the remedy.

The assertion that the President is above the law represents an argument that was lost in England in 1215.  The President would strike at the very basis of the rule of law in the United Sates if he asserted that he could derive profit from breaching the trust imposed on him by virtue of his office, and that the law denied any remedy to the people.  Such a proposition may or may not hold in China, Iran or Russia, but not in the United States.

There is a medieval background beside Magna Carta.  The Statute of Westminster 1275 provided that ‘No Sheriff nor other’s King officer shall take any reward to do his office, but shall be paid out of that which they take of the King.’  Later, Lord Mansfield said that a ‘public officer’ held ‘an office of trust and confidence concerning the public.’  The general law – common law or equity – had for long provided that someone misusing an official position for personal gain was liable to the relevant authority under a writ of account.  This was not a matter of what we call ‘constitutional law.’  It is the law that applies to the boy selling pies at the footy.

The old writ of account at common law, which was later effectively taken over by courts of equity, goes back to at least the twelfth century.  It involved two phases.  First, the issue was whether the defendant was accountable.  Secondly, a judgment for the return of capital and any profits from its use.  As was common with the development of substantive law from procedure, the writ came first, and the doctrine followed later – reluctantly.  Still, a leading text book is entitled ‘The Duty to Account’.

There is nothing therefore extraordinary, at least for Australian lawyers, about public officers at the highest level being subject to the general law of the land.  To adapt the language of A V Dicey, no one is above the law, but all of us, whatever our rank or condition, are subject to the ordinary law of the land, and amenable to the jurisdiction of the ordinary tribunals.  ‘The principles of private law have with us been by the action of the courts and parliament so extended as to determine the position of the Crown and its servants; thus, the constitution is the result of the ordinary law of the land.’

The second proposition does not apply in the United States.  The first did not apply in France.  I would be surprised if that were so in the United States.  (A footnote in Dicey, published in 1885, refers to the ‘servitude of the French.’)

The Prime Minister of Australia and the janitor at Parliament House are subject to the same laws about how they go about serving the people of Australia.  If the barons got it right at Runnymede in 1215, this issue is not one of governance, much less the constitution, but one of domestic housekeeping.  The law in Australia is clear that employees are liable to account to their employers and this applies to employees of government.  It would be odd if the Prime Minister had less exposure to the law than the janitor.  Is the state of the revenue less important than the state of the loo?

Put differently, the question is not whether Ministers of the Crown are accountable to the Commonwealth and the people for any profit obtained in the carrying out of their trust, but on what legal ground could it be submitted that they are not?  A standard work of authority is blunt: ‘Wherever A owes a duty to B, B is entitled to recover from A every benefit obtained by A by virtue of his fiduciary position, without B’s knowledge and consent.’

If the legal position is not the same in the United States, it might be time they came clean about it.

Now, the proper plaintiff in any action against the President would, I suppose, be the nation – the United States.  Trump could prevent that – but only while he is in office. 

There are ways around this where a company refuses to sue its directors – one is a ‘derivative shareholder action’ – but I do not know what the position may be in the United States.  Eventually, however, Trump and his family could be held to account.

Which brings me back to the disconsolate prince of Denmark.  He fell to ground like the providential sparrow.  He felt cursed that it was left to him to put things right in Denmark.  The problem for America is that no one is putting their hand up to do so there.

And it would be a shame if they were seen to go back nine hundred years on the bequest of the nation from which they seceded.

Notes

Maitland on ministers of the Crown: The Constitutional History of England, C U P, 1963, 203.

Equity: Maitland, Lectures in Equity, Cambridge, 1910, 82-83.

Equity: Story, Commentaries on Equity Jurisprudence, First English Edition, Stevens and Haynes, 1884, pars 218, 232, and 462.

Moses vMacferlan (1760) 2 Bur 1005.

Reading v Attorney- General [1951] AC 507.

Regal Hastings Ltd V Gulliver [1967] 2 AC 134n, 144.

Statute of Westminster, 1275, 3 Edward I, Ch 26: Paul Finn, Fiduciary Obligations, 2016, 358, fn 15. (Wikipedia offers a different version.)

Lord Mansfield: R v Bembridge (1783) 22 State Trials I, 155-156.

The writ of account: J A Watson, The Duty to Account, Federation Press, 2006, pars 2, 61, and 169.  The writ said the defendant must ‘duly and without delay render to the plaintiff an account’ for the time during which he held the plaintiff’s money: Pollock andMaitland, The History of English Law, 2nd Ed, Vol II, 221.  The authors there say that in the thirteenth century, statutes ‘sanctioned a procedure against accountants which was in that age a procedure of exceptional rigour.’

Dicey, The Law and the Constitution, Macmillan & Co, 1885, 177 (and footnote), 216.

Quo vadis, Conservatism?

/ Geoffrey Gibson / Leave a comment

The most abused word in our language may be ‘conservative’.  When applied to the political attitudes of a person or party, what does it mean?  Is it of any use here in Australia now?  Do we have a conservative political party?

The Shorter OED has: opposed to change and holding traditional values… (in politics) favouring free enterprise and private ownership.  The Macquarie has: disposed to preserve existing conditions…cautious or moderate…traditional in style or manner….

These categories are very wide, and obviously open to questions of degree.  They practically invite the application of bromides like ‘broad church’ – until the body is so wide that it is no longer a church. 

Most labels are suspect – this one is even more so.  Some people are optimistic about the work of government.  Others are pessimistic.  Some crave change.  Others fear it.  There may be deep emotional values underlying differing world views.  The place of ‘science’ in all this is wobbly.  The temptation of deception is strong.  And the poseur might have a field day.  Especially one who craves the ear of the ‘people’.

We can see the room for slippage in the notion of ‘conservative’ from the definition in The Oxford Definition of Philosophy.

Conservatism.  Originally in Burke an ideology of caution in departing from the historical roots of a society, or changing its inherited traditions and institutions.  In this ‘organic’ form, it includes allegiance to tradition, community, hierarchies of rank, benevolent paternalism, and a properly subservient underclass.  By contrast, conservatism can be taken to imply a laissez-faire ideology of untrammelled individualism that puts the emphasis on personal responsibility, free markets, law and order, and a minimal role for government, with neither community, nor tradition, nor benevolence entering more than marginally.  The two strands are not easy to reconcile, either in theory or in practice.

Those remarks are English and dated now.  No sane person here would refer to ‘a properly subservient underclass’.  But no political party in the Welfare State can reject ‘benevolent paternalism’.  That would be political suicide. 

We inherited the Welfare State from the English.  The constant political issue is that we demand to retain the benefits, but we turn against those who want us to pay for them.  The result is that our government is broke, because its members are too scared of us to do what is required.  They just pass the buck to the next lot. 

They deny that, but we do not believe them.  Nor do we do anything to fix the problem.  This failing looks to be inevitable in our model of democracy.  I have no idea what the end will be.

Another thing we inherited from the English was a rejection of theory or ideology.  We distrust both.  ‘Ideology’ comes from the study of ideas.  We act on the lessons of experience rather than the demands of logic.  You see very different attitudes across the Channel or the Atlantic.

Another thing we inherited from England, after America had not, is that the English had accepted the responsibility of government for looking after the poor from at least the time of Queen Elizabeth I (1558-1603).  In the sixteenth century, before white people had even seen America, the English people had assumed obligations for their poor that would have been abhorrent to their Puritans back then, and which still look at best alien to most Americans today.  By 1563, the English had made a law for the compulsory levy for the maintenance of ‘impotent, aged and needy persons’.  The Oxford History of England records that the English accepted that the poor were ‘a charge on public benevolence’ and that ‘responsibility in the matter could not be left to the conscience of the individual, but must be enforced by law upon everyone.’ 

The English did not do this for ideology or out of charity, but for the prosaic object of keeping the peace against vagabonds.  They faced reality, not God.  Common sense trumps theory.  The distance from this very old English position to that in America now is as deep as the Atlantic.

When you add to that the fact that the Welfare State was introduced to England by Lloyd George and Winston Churchill in the People’s Budget, you get a better idea of the difference between us and the U S. 

Before Churchill, Disraeli had been the pin-up boy of English Conservatives.  That did not stop him taking the plunge and introducing something like universal male suffrage.  The great Prussian, Count Otto von Bismarck, had done the same for Germany before he introduced the Welfare State there.  Disraeli and Bismarck were archetype conservatives – and I admire both.

‘Conservatives,’ then, could be alarmingly ‘progressive, to use another very plastic label.  Even when ‘conservatism’ was in full flower it allowed policies we now call liberal or progressive and which would be pure heresy to those who claim to be ‘conservatives’ in the U S today.  Burke, Bismarck and Disraeli did things that would lead to apoplexy on Sky After Dark.

England had both a conservative party and a liberal party.  (Churchill flitted between both, but he was one off.)  England still has a party with ‘Liberal’ in its name beside the party of the Tories.

Australia has a party called the Liberal Party.  It also claims to be conservative, although its lore is that the title ‘Liberal’ was deliberately chosen.  It now looks neither liberal nor conservative.

For about a generation it was wedded to a party of very determined agrarian socialists.  That party now looks to be in the hands not of farmers, but mining companies and urban ideologues in think tanks.  The coalition further dilutes any recognisable platform.

What are the results in Australia? 

 First, neither of the two main parties can come close to forming a majority in parliament.  Each is on the nose to the public at large.  One is accused of forgetting its roots or past.  The other is accused – and fairly accused – of not fulfilling its obligations in opposition and of turning its province into a one-party state. 

Secondly, on vote-driving issues, the only differences between the two parties are those of degree.  With the possible exception of preserving the environment, neither major party offers policies that derive from its platform, and are different in substance to those of the other side.  Each is engaged in a listless and useless game of charades that turns people right off politics as a whole.

Thirdly, whereas two generations ago it was the Labour Party that was unelectable because of division, ideology, cranks, and crooks, now it is the turn of the Liberal Party.  They look useless and bent on sustained irrelevance under the sedative of the ideology of their media drivers. 

It is best to pass over the National Party and One Nation in silence.

The conclusion is, I think, that the word ‘conservative’ has no place in Australian politics.  It is at best useless, and at worst misleading.  Like ‘socialist’, it is a darling dodo of our time.

And no populist can claim to be ‘conservative.’  They stand, they say, for ordinary people against the ruling Establishment, whose members they brand with the term ‘elites’.  I long for the day when an Australian says ‘I don’t want the best cricketer in my Australian XI – I want a dinky die Aussie battler or bludger.’  Or someone walking into a hospital saying ‘I need surgery to deal with a life-threatening condition, but I don’t want a Top Gun surgeon – a GP from the sticks suits my schtick.  I distrust all elites.  I am but a child of the people. Who was it who said of the people, by the people, for the people?’

The most hilarious claimant for the label ‘conservative’ is Donald Trump.  His mission is to obliterate the whole status quo by deceit, and if necessary by violence and force.  And a frightening number of Americans are happy to go along for the ride on a violent road.  And the last thing Trump wants to ‘conserve’ is the planet.

His major trumpet, Fox News, has nothing to do with politics.  It exists simply to enrich and aggrandize its owners.  In this respect, it resembles Trump.  By contrast, the function of the Murdoch press in Australia is simple.  It appeals only to a portion of the voters who can only vote for one party, and while doing so makes that party unelectable.

The American ideology is home grown – the family, God, and the flag.  They look still to have a hankering after royalty, as do the French, but at its worst in the U S, you get the spewing hate of Stephen Miller, who is besotted by the very idea of ideology.

There is an ideology that has steadily been growing in this country which hates everything that is good, righteous and beautiful and celebrates everything that is warped, twisted and depraved.  It is an ideology at war with family and nature. It is envious, malicious, and soulless.  It is an ideology that looks upon the perfect family with bitter rage while embracing the serial criminal with tender warmth.  Its adherents organize constantly to tear down and destroy every mark of grace and beauty while lifting up everything monstrous and foul.

You would not want to be left alone in a room with a man who talks like that.  Goebbels would have blanched.  This is wild uncharted Scapegoat Territory.

So, the future looks bleak for democracy all round. 

Conservatism is a natural and decent instinct, but it has been claimed by people who are anything but decent, either because they are stupid, or greedy, or both.

Oddly enough, Australia may be well placed to deal with the Fall.  This is because we are not interested in ideology – or, for that matter, politics at large.  Life offers so much more.  Most sane Australians would much prefer to talk about footy or cricket than the so called ‘culture wars’.  And that is very healthy.  Australians correctly suspect those who have the time and inclination to indulge in what are called the ‘politics of grievance’.  What more do these people want?  What drives them to keep stirring the possum?  Did they not have enough toys in their childhood?

I was reminded of a very cold morning in the middle of winter on a crowded platform on a railway station an hour from Melbourne some years ago.  Then came the dreaded announcement.  The train was delayed.  Yet again.  That led to the following conversation.

I am going to punish these bastards for this at the next state election.

So am I, Mate.

Can you just remind me, Cobber – which set of bludgers claims to be running this bloody joint at the moment?

The Mob – and Some of our Vices

/ Geoffrey Gibson / Leave a comment

Shortly before white men began occupying this country, London was consumed by riots against Catholics.  These were the Gordon Riots of 1780.  Night after night, many substantial buildings, including the home of Lord Mansfield and his library beyond price, were burnt down, and hundreds were killed when the military established law and order. 

Charles Dickens told the story of those riots in his novel, Barnaby Rudge (1841).  It is an epic tale full of sound and fury, but an idiot is the hero, and this story is full of significance.  In the words of his mother, Barnaby, with the soul of innocence, ‘has been led astray in the darkness of his intellect.’  It must have taken real courage to write a novel so constructed, and having now read it for the third time, I regard it as the most powerful novel that this author has left to us.

It was not in my view an accident that led Dickens to write about the actions of the London mob with an idiot in the central role.  In words that will ring true for those who experienced the march against migrants that was patronized by neo Nazis in Melbourne in the beginning of Spring 2025, Dickens spoke of ‘this vast throng, sprinkled doubtless here and there with honest zealots, but composed for the most part of the very scum and refuse of London.’ 

One thing the novel is clear on.  People in a mob can be divided in two groups – the puppeteers, those who do the manipulating, and the base, those who are content to be manipulated.  It is an unholy marriage.  In the novel, one of the mob calls a puppeteer ‘so awful sly.’

Reading the novel again has prompted reflections on aspects of the Melbourne disturbances compared to the riots in London.

Selfishness

Even hermits may feel the need to call a plumber, night carter, or doctor.  If you wish to live with, or at least have access to, other people, you will not be able to act as if you were one person standing alone.  You would have to contradict Richard III expressly when he said ‘I am myself alone.’  (And he is the archetype villain.)  If you want to be able to take, you must be able to give.  In the vernacular, you must pull your weight.

This is too much for too many.  We saw it during the Covid emergency.  In an emergency, the need for cooperation and cohesion is increased.  Yet many selfish people asserted a right to opt out.  They sprouted ideological claptrap about ‘liberty’, or doubts about vaccines.  They were more concerned about their alleged rights than the vulnerability of others.  They were selfish. 

Some even claimed to be ‘sovereign citizens’.  Sovereignty is a tricky notion at best, but this looks like a contradiction in terms that makes as much sense as ‘powerless monarch’.  There is a term for such people.  ‘Bush lawyers’ are serial pests.

Then, after two police officers were murdered, and all available police were involved in a search for a dangerous killer, some decided to go ahead with a public event that they knew would take up police time and cause serious trouble.  They generated division and loathing, and some confronted and attacked police at the worst possible time. 

They seemed to be equally opposed to recent migrants and those who had been here for many thousands of years before any white people arrived in their boats.  (A lecturer of colour at Cambridge said the British Empire was spread by ‘water-borne parasites’.  It was a great line about ‘boat people’.)  The flag they purported to celebrate features a foreign flag – the one that was run up by those white migrants who first arrived here in 1788.  These marchers were in large part as nasty as they were selfish.

Prejudice

Truth matters.  Or it used to matter. 

We arrive at it, or try to arrive at it, by thinking.  There are many ways that process can be corrupted.  The most common is prejudice.  We tend to prejudge issues based on insufficient evidence and to arrive at an opinion that suits our world view.  Antagonism between people of different race, religion, sex, or sexuality typically starts this way.  It is harmless in sporting competitions, but poisonous elsewhere.

That is one way we fail to arrive at truth and risk being lost in Fantasyland.  But truth as a whole has been undermined by what is called ‘social media’, so that the man who was called the leader of the free world looks to have lost all connection with truth.  There is in play a catatonic movement in how people at large think – or, rather, don’t think.

Laziness

Too many people are too loose in their language.  We all have our prejudices – about religion and sport for example – but we are insulted if someone says we are prejudiced against people on the grounds of race, sex, or sexuality. 

The relevant terms of abuse include ‘anti-Semitic’, ‘misogynist’, and ‘homophobic’.  They have all been used so loosely that none has scarcely any useful content left.  If John the footballer is said to be ‘homophobic’, the relevant emotion is not fear.  Rather, the charge is that John dislikes gay people; that his dislike is irrational; and that he regards all gay people as being in some way inferior.  John is in truth endorsing a form of branding – something we normally reserve for cattle.

You do not compliment John by describing him in that way.  On the contrary, you are attacking him by denigrating his humanity.

There are then these problems.  This charge is far too often made with no adequate foundation.  And in circumstances of strife where prejudice and malice too often are manifest.  And the person making the charge is indulging in a form of branding, and so engaging in something like the vice he or she is attacking.

Stupidity

This ‘branding’ commonly involves its own kind of stupidity.  Do I have the right to call John a loud bigot just because he barracks for Arsenal or Collingwood?  Or can I call Ivan uncivilized just because he is Russian?  Or can I say that no Irish man can be trusted to pay tax because of the attitude of Irish government to tax? 

In each case the available premises do not support the conclusion.  The Latin phrase is non sequitur.  And in each case, there is an insult to the humanity of the target. 

Insult weighed very heavily in the Roman law of civil wrongs.  And you can find authority for a very large proposition of Roman law that any affront to the dignity of the individual was actionable for the wrong of inuria.  The common law knew nothing of the kind.

Victimhood

You know you are in Lala Land when Donald Trump claims that he and Vladimir Putin, and, for that matter Benjamin Netanyahu, are victims of some undue process.  (He is happy to pass over the fact that he is so far at least the only member of the trilogy to have been convicted of a serious crime.)  Nigel Farage claims the right to stand up for victims.  He says that ordinary English people are victims of excessive migration.  That claim was being aired in the marches against migrants here in Australia.

This is I suppose an example of what some people in the press call ‘identity politics’.  The problem is that to claim each member of a group should be regarded as different to the rest of the community, and therefore dealt with differently, can lead to the most pernicious consequences in the history of mankind.

Naivety

If you watch programs like American Greed, you will wonder at the stupidity of victims of con men.  You may wonder if you could be so vulnerable.  ‘There is one born every minute’ is a truth that comes from the fact that the promise of wealth distorts, or blows, people’s minds.  They forget one maxim of investment: the greater the return, the higher the risk.  At best, the victims look naïve, and when the scam is uncovered, they feel shame that they allowed themselves to be taken for a ride.  (I speak from experience of having been scammed.)

Recently, people marched in Melbourne protesting, they said, against migration.  Very few would acknowledge that all white people in Australia – the nation of the infamous White Australia Policy – are migrants, or descendants of migrants going back to 1788, but we can put that to one side.  We are assured that many of these people were decent people exercising their democratic right of protest in an event that was taken over by neo Nazis. 

That takeover was foreseeable, if not inevitable, and those decent people must be naïve to a level that makes them dangerous.  They were after all participating in the inevitable replay of an historical process.  Children fight hard to gain control of the tree house, and then fight like hell to lock out other upstarts threatening to dilute their power or wealth.  Try for example The Lord of the Flies by William Golding.

Jealousy

If you look at western democracies that embody the welfare state – and the U S is not one of them – you face the same problems.  People want to receive the same benefits from government, but they don’t want to pay for it.  Those at the top get cross at the increasing demands made on them, and those at the bottom are incensed at the lack of fairness in the distribution of income and wealth.  And they resent newcomers who look to them to be here to get their heads in the trough.  They fear that their own standing is being debased.

You know you have a problem when both ends are whingeing, but it is hard to persuade a bank teller that the system is fair and reasonable when her boss gets paid one hundred times what she gets, and when some professional people are charging north of thirty thousand dollars a day.

Righteousness

This term is not often used favourably now.  It is downright obnoxious when claimed for one’s self by the speaker – usually by implication.  It is implicit in the bearing of the victims.  The self-righteousness of some victims – actual or alleged – can be revolting, especially with those who look like anything but victims, when they seek to benefit from the suffering of others.  (A droll observer, might offer, from a safe distance, Collingwood supporters as a good example.  People of wealth and standing posing as victims.) 

Not many of these standard-bearers of the downcast are surgeons or silks.  But we see it now from those at the very top to those at the very bottom when they seek to assert some moral right in what is otherwise a sterile argument about wealth and power – underwritten by the green-eyed monster called jealousy. 

These claims on righteousness lead people into melodrama, and claiming a significance that life has otherwise denied them.  For a change, they mean something, and they have a cause.

And white Australians baiting migrants and people of colour, when all white Australians are white migrants or their descendants, are about as nasty as you can get.  Among other things, apart from our migrant past, you would have to shut down every hospital in Australia if you were to exclude migrants, especially those from Asia and Africa.

Insecurity

Insecurity is no more a vice than anxiety, but it plays a fundamental role in much of our communal unrest.  You do not see many professional people or leaders of business at MAGA or Nazi rallies, and you rarely hear complaints or fears about migrants from those whose position or status is secure.  The trouble often comes from those who are insecure, and therefore feel anxiety, a form of fear.  This then disfigures thought.  The great Dutch philosopher Spinoza said:

‘Men would never be superstitious if they could govern all their circumstances by set rules, or if they were always favoured by fortune …. The human mind is readily swayed this way or that in times of doubt, especially when hope and fear are struggling for the mastery, though usually it is boastful, over-confident and vain.  Superstition, then, is engendered, preserved and fostered by fear.’

Some cannot tolerate doubt, and along with superstition, they go after any conspiracy theory that they think might justify their world view.

It is, I suppose, a fact of life, if not language, that the weak are prey to predators.  And stupidity and insecurity lead inevitably to gullibility, as Spinoza observed. 

People become suckers for those who have the answer.  They are vulnerable, and when the aggrieved unite behind a leader, their communal belief and self-righteousness warps their minds, and strife and violence become more incidental than accidental.  On a bad day you get the Proud Boys.  Here it is the so-called neo Nazis – forget the neo, they are Nazis properly so called. 

Macaulay said:

‘We daily see men do for their party, for their sect, for their country, for their favourite schemes of political and social reform, what they would not do to enrich or avenge themselves…. virtue itself may contribute to the fall of him who imagines that it is within his power, by violating some general rule of morality, to confer an important benefit on a church, on a commonwealth, on mankind.’

Ambition

This does not sound like the people we are looking at.  ‘Ambition should be made of sterner stuff.’  Big hitters like Alexander, Julius Caesar, Napoleon and Hitler all had ambition and were brought down by it, leaving millions of dead behind them, but it does not seem the appropriate epithet for our protesting marchers.  They do not want to join the ‘elites’ – they loathe them.

Intolerance

Attaching headings to these traits should not give these labels any more force than traits to look for in trying to work out how we go off the rails.  They are all out there to combine to undo us.  But we may have left the worst to last.  Intolerance.  Sir Lewis Namier knew as much about history as anyone I have read.  He said what we miss is ‘tolerance with the restraint it implies.’  If you look at the flare-ups currently being encountered in the U S, the U K, or Australia, they arise from or are driven by intolerance and a lack of restraint.

Venom

The result of these vices can be a loathing that cannot be dismissed as irrational, and a form of vitriol that is anything but rational.  Such as Nazis or police killers who call themselves ‘sovereign citizens.’  These people are cancers on the common weal, and in looking at dealing with them, we should bear steadily in mind the forces for evil that were unleashed in Paris in 1789, in St Petersburg in 1918, and Berlin in 1933.  Those explosions led to catastrophic losses of life and human dignity.  It is curious that two are still celebrated in some parts.  But what we do know is that when revolution comes, the scum rises to the surface – and we can already see the scum before our eyes.

Dickens had at least two things in common with Shakespeare – the ability to depict precisely those at the bottom of the barrel, and an unholy fear of the mob.  In this Dickens novel, the hero was sentenced to death for his part in the riots.  He got a full pardon in the end, presumably on the ground of some kind of diminished responsibility.  Medicine may need to refine its views on insanity, and the law may need to do so on criminal liability, but it would be as well to remember the insistence of Hannah Arendt that:

‘The trouble with Eichmann was precisely that so many were like him, and that many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal.’

Non sequiturs

/ Geoffrey Gibson / Leave a comment

The most common form of fallacy, in the broad sense of that term, is a statement that the premises of an argument lead to a conclusion that they do not.  The conclusion simply does not follow from the premises.  The Latin term is non sequitur.  ‘My uncle smoked fifty a day and lived until he was ninety – when he got hit by a bulldozer.  Therefore, I can smoke the same amount without impairing my health.’

If I criticise the present government of Ireland, that act alone cannot establish that I have an irrational prejudice against Irish people at large – especially those people claiming to be Irish at the other end of the world.  That would be an obvious non sequitur.

But if Irish people in Australia accused me of such irrational prejudice against all Irish people on that basis, and no other evidence, I would resent that very much. 

And that resentment would be much greater if those making this untenable charge – because that is what it is – are plainly not stupid, but hold positions of responsibility and power.  (On a bad day, they may even get the sobriquet of being ‘influencers’, people who are rarely seen without a smart phone or podcast mike in their hands.)  I would regard this false charge from such a source as malicious. 

What do I mean by malice in this conduct?  In the words of Justice Holmes, ‘harm to another person was intended to come of it, and … such harm was desired for its own sake as an end in itself.’

The risk then is that a false charge against me has led to my having an adverse opinion of at least some Irish people.  And this might then be urged to support a claim that I had an irrational prejudice against Irish people at large.  And so, a false statement gets what some call ‘traction’, and this rolling ball can gather plenty of moss.

People can have their own views about the bearing of this analogy on the current discussion surrounding suggestions put forward by the Special Envoy to Combat Antisemitism.  The lady is obviously one of outstanding credentials and honours.  She is one of the most privileged people in Australia, one who could attract the ear of government – or, if you prefer, call on our government to hear her voice.  Her Wikipedia entry is a trainline of civic adornment and government recognition in the Sydney Establishment.  University Medal.  Harvard.  Associate to High Court Judge.  Partner of the Sydney Establishment law firm.  Director of a bank.  Officer of ASIC, member of the Opera board, and other quangos.  Order of Australia.  As elite as it is possible to get in Oz, she would be as far removed from Old Jack out the back of Yuendemu as any person, white or black, in this Commonwealth.

And at least two things seem clear about the envoy. 

First, someone of this training and experience would be quite incapable of committing the non sequiturs that I have referred to above.

Secondly, we are asked to accept that those as elite as their envoy are in need of protection over and above that afforded by our laws and governance to identifiable minority groups who do not have the same political clout or economic heft.

And even this discussion seems both petty and insensitive when we reflect on the inexpressible horror of events in the Holy Land that have led it to it.  Is it not the case that a whole ocean of ink cannot wash away the stain left by one lost child?

But, still, in what sense is the lady an ‘envoy’ – a title certainly denied to the people of Old Jack? 

If I look at the Shorter English Oxford Dictionary, I find ‘A public minister sent by one sovereign or government to another for the transaction of diplomatic business’ and ‘An agent, commissioner, deputy, messenger, representative.’ 

Surely neither party contemplated the kind of separation in our community that those terms would suggest.  Do the people the envoy was appointed to represent really want to be seen to be that different to other Australians?  Should I be looking at my friends of Irish or Jewish descent as being somehow different to me – branded, even?  Do Albanian or Anglican Australians see themselves as separated from the rest of us by race or at all?  Outside of the First Nations, does human pedigree somehow count in my country?

I will look later at some issues arising from the appointment of this envoy and her recommendations to the government that appointed her.  The only thing I wish to say of it now is that both the appointment and her advice seem to me to be predicated on the proposition that events in the history of one race of people may entitle or even require a government to treat all people who belong to that race differently as a matter of law to people of other races. 

That in my view is a proposition that is as pernicious as it is baseless.  And I fear it will generate real resentment and cause just the kind of grief and stress that the creators of the office of envoy sought to contain.

Trying to deal with Australians who are seen by some to be different is not, then, this Prime Minister’s strong suit.  He is in my view honest and well meaning, but this is his second gutser in the tricky realm of race in Australia.  Honesty may be necessary, but it is not sufficient, and the old saying remains true – the road to hell is paved with good intentions.

Well, at least some Australians may get some light relief from reflecting that those who support the appointment and the work of the envoy include a lot of those political and press warriors who spend so much time banging on about elites, identity politics (the tendency of people in a group to forge exclusive alliances), virtue signaling, or giving our First Nations people a Voice recognized in the Constitution – because, wait for it, it would be ‘divisive’ in the Australian community!

And then we could look at those people whom the envoy was appointed to represent, and ask how many people of, say, Aboriginal, Chinese, Arab, or Muslim descent or connection have risen to the same commanding heights as her lot in in the professions, business or government of Australia – or even just attained common garden membership of the Melbourne Club or Royal Melbourne Golf Club.

Events, dear boy, events – are what keep our weather cocks turning in the wind. 

, , , ,

Race – racism – Special Envoy.

This is not a card game (Volodymyr Zelensky)

/ Geoffrey Gibson / Leave a comment

Politics and politicians are on the nose in countries that like to  call themselves democracies.  This is especially so in countries like ours that have adopted a version of the English two party system.  Failings in that system have led to what are called ‘populist’ movements in the U S and U K.  By and large, we have escaped that curse here. 

The main reason may be that we just can’t be bothered, but our failings are different to those in the U S or U K. 

For the non-partisan observer, it is hard to tell what is the difference between the platforms of the Liberal Party and the Labor Party.  Any differences are matters of degree only, and not of kind.  That is unhealthy, because it creates the impression that neither stands for any distinct difference in principle. 

Very few sane people want to pay more tax or get less benefits from government in return.  The trick is to balance the two.  People whose jobs are on the line at each election may not be the best at handling that trick.  What is entirely clear is that the leaders of both parties have been well and truly frightened off taking a stand as a matter of principle. 

But the reaction here has not been the rise of populism.  That embarrassing flash in the pan has been largely contained here, notwithstanding some dropping of the guard by some vote-chasing Liberals.  (It is called ‘dog whistling’.)

We have reacted by electing principled independents.  Who happen to be women.  Who then raise the question – are they just better at this than men?  (In my view, they are.)

In the election just held, I could not bring myself to vote for either major party, because in my view each has been guilty of a moral failing in not responding to the vice of advertising gaming on sport.  Since I am in a safe seat with no independent, and I could not care about the Senate, my time in the booth was as useless as it was short.

Every now and then, the two-party system produces a leader who is prepared to take a position, and fight for it, on an issue of principle.  Margaret Thatcher and Paul Keating come to mind, but not many others – and you need to take care where you drop either name.

It is axiomatic that the two-party system is only as good as the two parties.  A weak opposition will lead to bad government.  We are acutely aware of this in Victoria, and must now look for it federally.

The election just held was a disaster for one party – and therefore the rest of us.  The Liberal Party is now so weak, and seen to be both weak and unprincipled, that it may not be able to discharge its function in opposition of keeping government on the rails.  As Philip Coorey remarked, you cannot engage in soul searching if you have no soul.  We here in Victoria may be just as badly off in federal government as we are in state government.

In my view, the Liberal Party finds itself looking into the void because it has no defined world view, and it has failed to discharge its obligations as the party of His Majesty’s Opposition. 

That fine English historian Dr J M Thompson stated the role of opposition parties 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.  But party politics in the French Assembly meant a very different thing….so majority legislation might be merely partisan, and minority criticism merely destructive and irresponsible.

You don’t criticize the government until you have a better policy, and you do not get in the way in a time of national crisis.  That is not statesmanship, a word that now dies on our lips.  It is common sense and common courtesy.

We are in a time of national crisis of a kind that some call ‘existential’ with the climate.  The then Leader of the Opposition said he could not comment because he was not a scientist.  That was downright silly, but it did entail that the issue is one to be resolved by scientists, not politicians.  It should never have been a party-political issue – on which the Liberal Party delivered raw tripe, and looked to be in thrall of a very rich lady who has bought a think tank just for herself.

Nor should the treatment of the First Nations have been allowed to degenerate into a demeaning party-political squabble.  It was far too important for that.  The referendum was called as part of government policy carried at election, and the opposition knew that history showed it would fail if they opposed it.  So, they did, and with fear and deception.  The result was in my view disgraceful, and the worst failing of governance in Australia since the Dismissal in 1975.  Those calling it a win remind me of Douglas Jardine on Bodyline.  As the poet said, ‘out went the candle and we were left darkling.’  Round up the usual suspects; as it happens, the same Born to Rule crowd that sends us to war on false premises.

Now they have paid the price.

But it is obvious that we are all worse off.  The Murdoch crowd have form for being bad losers (as of course does their American idol).  They pout and they sulk, and one lady looks like her soul has left her body.  Then she and the booster in chief last night joined hands to proclaim that they had not fought enough culture wars, and that the referendum was one culture war they had won. 

What was really sad is that they did not see this as a confession.  And they forget that the Anglo-Saxon peoples distrust intellectuals and ideology.  (Name one nation that has benefited from either.)

The two-party system of democracy is like our adversarial system of litigation.  It involves a contest, but it is not a game.  And these people do not just fail by treating it as a game, but they play the wrong kind of game – they play poker, when what is needed is the demurer contest of bridge. 

In truth, they have been sucked into what might be called the ‘McConnell Model’ of opposition.  Just oppose everything the government proposes.  Put a spoke in the wheels of government.  And then let the government feel the wrath of the people.  Then it will be our turn again to hand out the goodies, and the folks at home will get what they deserve.  

What could be simpler?  It goes down a treat in Africa.

The independents are alive and well.  The minor parties – the Greens and One Nation – in my view deserve each other and their decline. 

As it seems to me, we are beginning to transition away from the two-party model to the European.  It is hard to see how we could be worse off.

So, what is the answer?  Simple, Mate.  Turn the footy back on, and then go back to sleep.

Sam Kerr

/ Geoffrey Gibson / Leave a comment

It is hard to believe that this trial alleging ‘racially aggravated harassment’ against Sam Kerr is going on. 

I need hardly declare my bias, which will be shared by most Australians, and followers of sport.  Sam Kerr is one of the best footballers I have seen, and something of a national idol.

For a start, it had not occurred to me that Sam was of a different race to me.  If I had wondered about her complexion, I may have repeated the error I had made with Stan Grant about twenty years ago – until I was corrected, I thought he had spent too much time in a solarium.  But, then, in the 1950’s, when this nation’s traditional racism was at its peak, a federal MP asked whether Italians or Greeks – wogs or dagoes – were truly white. 

It all shows how careful we must be – it appears to be accepted that a reference to the colour of a person is a reference to that person’s race.

The accused was obviously drunk, and police are trained and paid to deal with problems that that condition might lead to.  It is remarkable that a whiter copper can be hurt actionably under the criminal law by a drunk referring to the colour of his skin while she abused him.  What if she had added that he was a ‘he’, and a straight one to boot?  Could he get some furlough to recover his composure and become whole again?  The copper could not claim to have been hurt as a member of an oppressed minority.

It gets worse.  The court has been told that the informant did not allege personal hurt when the charge was first formulated.  He only did so after he got knocked back by the officers of the Crown.  As a lawyer, I would feel uncomfortable in presenting such a case.  It had enough whiskers on it already.

Then the charge is one of ‘harassment’.  On my reading of the dictionaries – Oxford and Macquarie – that involves repetition or persistence.  I do not see that hear.

And all this is not being dealt with by a magistrate in a morning.  It is being heard by a judge and jury in a trial lasting more than a week. 

Yet I keep hearing on Sky News UK that the criminal justice system in the UK is hopelessly out of control.  Are real victims of sexual violence not getting the protection they desperately need because a drunken woman has ruffled the sensitivities of a male copper?

What politics could drive this oddity?  Surely at some stage there was a polite high-level phone call.  ‘Do your members really want this?  Is it good for their standing – what people call ‘optics’?  This could be seen as a ‘test case’ and front-page news here and elsewhere.  During the war, the trains carried a message: ‘Is this journey really necessary’?  Even the Palace might be interested.  A conviction would be a real shot in the arm for republicans in Australia.’

It is not hard to imagine at least some on the jury busting to ask the judge: ‘On the off chance we decide to pot this woman – and God knows I have done a lot worse with a skin full – can you give us an assurance you will not put her inside?’

This and the Federal Court case against the ABC arising from comments made about Gaza show how tricky and dicey it is to make laws about what we can and cannot say in public about issues we are wont to call ‘sensitive’.  If you push the law too far, you degrade it.

The one thing that is clear to me is that cases like that involving Sam Kerr are blood to a tiger to people like Nigel Farage, Peta Credlin, Donald Trump, Elon Musk, and Peter Dutton.  It’s hard to imagine a Queensland copper taking any of this seriously, but Pete will do what he can do for the team.

Put to one side all that bumpf about freedom of speech – making penal laws to enforce manners that you regard as appropriate demeans the law, and gives a free kick to vacuous, malicious, ideologues.

The Men Who Killed the News

/ Geoffrey Gibson / Leave a comment

This book by Eric Beecher is long -or it seems long – and it may not tell us much that is new – but we should read it.  I may have missed it, but the subtitle could be the aphorism ‘Power without responsibility – the prerogative of the harlot through the ages.’

We get all the moguls.  They are devoid or style and humanity.  They are in it for power – bought with money.  The main villain is of course Rupert Murdoch – and the book makes it clear that he could not give a bugger. 

It also makes it clear that things could get worse under the presently nominated successor, Lachlan Murdoch.  If his action against Crikey is any indication, Lachlan has no judgment at all.  In a lifetime in the law, much of it involving the press, I have never seen anything like it.

His sad case raises another point.  None of these moguls shows any sign of contentment.  If life involves the pursuit of happiness, each is a pathetic failure.  And that goes for those who kowtow to them.  I have no idea what it may have been like to work in an Ottoman harem, or Oriental knock shop under the Red Guards, but that is how the well-paid tributaries of Rupert and Sons look to me. 

Rupert is just frankly vicious.  He knows no other way.  And he doesn’t even look like leaving us soon.  He may have time to claim the record of Henry VIII as a retail terminator of his wives – although not even Harry – what an awful rock to build a church on – could do so by email.  When Rupert goes, there will be a massive funeral, but not one mourner.  The damage he has wrought to the governance of Australia and the U S is beyond assessment.

As is the damage he has done to the profession of journalism – that he has devoted his life to perverting.  People in a profession do so as a vocation that serves a public purpose.  The public need for the functions of journalists is as clear as that for doctors and lawyers.  All of them have to put food on the table, but when money becomes paramount, as it does in the Murdoch world, professionalism goes clean out the window, and you are left with tits, lies, and downright hit jobs.

One chapter is called ‘Give ‘em what they want.’  There is a remarkable resemblance between the moguls and people like Trump, Boris, Farage, and now Musk.  They know how to fish the gutter – the contents of which they regard with contempt.  And the people so hooked think it is Christmas – so that the working people of the U S thought they may be better off under a government of billionaire egomaniacs.

All this is so cold that Michael Corleone could have blushed when he replayed the primal sin of murdering a brother.  Rupert sacked the guy who published the Hitler diaries after he, Rupert, had personally ordered their publication – the sort of thing Hitler avoided – and as the truth came out, said ‘nothing ventured, nothing gained – after all, we are in the entertainment business.’  (The German victim at Stern said ‘I couldn’t believe that anyone would have gone to the trouble of forging something so banal.’  That brought to mind Hannah Arendt, and my reaction to scammers posing as bankers – they were so banal, they had to be real.)

And when Rupert said ‘this is the most humble day of my life’, he butchered the language, but he was humiliated because he was caught with his hands in the till.  As was everyone at Fox when they were caught despising Trump.

And in the course of my legal practice, I have seen with my own eyes people very high up in the Melbourne community quail at the prospect of Rupert coming after them.

Mr Beecher quotes a remark of Edmund Burke I could not recall- ‘the world is governed by go-betweens’.  That is so true – and so many wheedling ratbags.  And the press is forever in danger of joining the swill.  It is very sad, because public trust is evaporating in almost every aspect of our communal life. 

Possibly the most potent quote comes at the start – from Janet Malcolm, who is about as respectable as you can get on this subject.

Every journalist who is not too stupid or too full of himself to notice what is going on knows what he is doing is morally indefensible.  He is a kind of confidence man, preying on people’s vanity, ignorance or loneliness, gaining their trust, and betraying them without remorse. 

Mr Beecham says: Journalism is by nature an exercise in manipulation. 

Well, so in some ways are those who practise medicine or the law.  But the problem for journalists is that they have to spend so much time in dealing with people in politicsor business who are on the make.  And manipulators work on manipulators and whole industries evolve to murder the very idea of truth and to salute evasion.  And they do for lucre, the potential pollutant of every profession.

And then along came AI.  Can anyone trust anyone now?  Mr Beecher concludes by saying that ‘he never imagined that the intervention of machines, controlled by another group of human beings behaving badly, could usurp the moguls and make things worse.’

Perhaps I should insert a form of disclaimer.  In my time in the law I acted for and against the press and have a settled view on where the power lies, but in dealing with journalists on a daily basis about issues I was involved in, I had hardly ever any complaint about dealing with them in confidence.  Which is more than I could say for my lot.

Finally.  I have very much enjoyed many summer schools at Oxford and Cambridge, but those drongoes at Oxford who established the Rupert Murdoch Chair in Communications should be utterly ashamed of themselves.  Alan Bennett said: ‘If the University thinks it’s appropriate to take Rupert Murdoch’s money, perhaps they ought to approach Saddam Hussein to found a chair in peace studies.’ 

Or they could cross the channel to see the sluts in white boots at Pigalle.

The Boeing Pact

/ Geoffrey Gibson / Leave a comment

In 2018, a Boeing aircraft for no apparent reason plunged to the earth killing all on board.  Less than a year later, another Boeing of the same model suffered the same fate.  More than three hundred people died in these crashes.  In each case, the fault was found to be a failure in the computerised mechanisms that resulted in the pilot not being able to over-ride the robot driving or flying the plane. 

Boeing struck  a deal  with regulators and was then prosecuted for fraud for reneging on it.  So they struck another deal – and with no apologies to Groucho Marx. Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. The families of the victims are outraged by the deal.  The reasons are obvious.  The court will be asked not to approve the settlement.

The origins of our laws come down to us from the forests of Germany that the Romans looked down on – until the Germans sacked  Rome.  In the first lecture in The Common Law, O W Holmes said that Roman law started from the blood feud and all authorities agreed that the German law started in the same way.  The law of criminal and civil wrongs  ‘started from a moral basis, from the thought that someone was to blame’.

Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.  (Little Brown  and Co, 1881, 3,37.)

The first object of the law was to deal with vengeance – the vendetta. 

As it happens, more than one hundred years before Holmes published his lectures, the Scots philosopher David Hume had looked at this .  He set out a short extract that ‘contains the history of the criminal jurisprudence of the northern nations for several centuries’.

Hume describes two phases of the emergence of the  ancient Germans from ‘the original state of nature.’  The vendetta remained ‘an indispensable point of honour for every clan’, but –

….the magistrate had acquired a right of interposing in the quarrel, and of accommodating the difference.  He obliged the person maimed or injured, and the relations of one killed to…accept a compensation for the injury, and to drop all further prosecution of revenge….A present of this kind gratified the revenge of the injured family by the loss which the aggressor suffered.  It satisfied their pride by the submission which it expressed.  It diminished the regret for the loss or injury of a kinsman by their acquisition  of new property, and thus general peace was for a moment restored…

Then the intervention by the ruler stepped up a notch.

The magistrate, whose office it was to guard public peace and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, he thought  himself entitled to exact a fine, called the Fridwit, as an atonement for the breach of the peace, and as a reward for the pains which he had taken in accommodating the quarrel.  (A History of England, Liberty Classics, 1983, 174-176).

And this is precisely what we got with the common law of England after 1215 when the writ of trespass alleged a breach of the peace of the king by force of arms – contra pacem regis, vi  et armis.  That allegation was essential to the process on which the English developed so much of their law dealing with civil or criminal wrongs.

We see immediately why the Boeing family victims are outraged by the second proposed Boeing settlement.  They have suffered most grievously. Their reaction starts from a moral basis, from the thought that someone is to blame – a wrong has been done.  What others call vengeance, they call justice.  Their felt needs are as primal as you can get.  If our law cannot accommodate them,  have we gone backwards or, worse, sold out?

People trust airline manufacturers with more than money – they trust the manufacturers with their lives.  Boeing  breached that trust and many people died.

If the court is to find that someone was to blame, it will not be the corporate legal entity, but a real person.  Instead, lawyers for the government and the corporation strike a commercial bargain.  Shareholders will be mulcted for the benefit of the government treasury.  The people responsible will walk away untouched.  And the victims  will not get to see due process of law.

A prime object of that process is to deter others from committing the harmful acts complained of.   There too the law is mocked, but we see it all the time.  It is as if there is one law for rich companies, and another for the rest of us.

But what we do know is that the  sight of one executive behind bars will offer more deterrence than all these cosy club deals done behind firmly closed doors .

Open justice – regulators – criminals.