Obscene Words

(the article below is one of the chapters in my book Word Watching (published by Scribe).  But beware, this article contains some words and ideas which will shock some people. Word Watching contains 48 essays about aspects of language.  Of course, I recommend that you get it.)

In late 1996, the Court of Appeal in New South Wales passed upon the use of the word fuck by a policeman to his (female) subordinate.  Although the decision turned on other points, a question arose whether it constitutes offensive behaviour to use the word, and its variants, in a police station.  The decision in Commissioner of Police v Anderson (CA NSW unrep 21 October 1996) thus provides an interesting starting point for a bit of harmless etymology.

The case was an application to review a decision of the Police Tribunal.  It had found that Anderson had “failed to show respect for his subordinates”.  It dismissed a charge that he had “used offensive language in a public place”.  The Commissioner sought to review that dismissal, saying that he had not had a proper opportunity to prove that the Blacktown Police Station was a “public place”.

The Court of Appeal said the decision was not reviewable on that ground.  Meagher JA went on to say that in any event the words spoken did not amount to offensive language in the circumstances.

The words complained of were spoken to a female officer, Constable Cowin.  They included the following passages of limpid prose:
“Constable, get fucking over here…why aren’t these fucking messages on the fucking pad…I don’t fucking care, I want them on the fucking pad…” etc.

The charges also alleged that Anderson used the word “cunt” although not to Const. Cowin.

The decision of all 3 members of the Court was that the Commissioner had had a proper opportunity to prove that the Police Station was a public place, so it dismissed the Application.

Meagher JA said in addition that the words spoken were not offensive.  He said:

“…Undoubtedly, the behaviour of (Anderson) was unchivalrous and unbecoming of the office he occupies.  This is, however, a long way from … being offensive in any sense.”

“The evidence discloses that Sergeant Anderson habitually used the word ‘fuck’ or its derivatives; that everyone else did also; that Constable Cowin herself did so regularly.  It was, so a witness said, part of what oxymoronically is called ‘police culture’.  Likewise, the word ‘cunt’ (is) used from time to time, although Sergeant Anderson never used this word to Constable Cowin.  There was no evidence that persons in the public area were ever offended, nor that the public area was frequented by  gentle old ladies or convent schoolgirls.  Bearing in mind that we are living in a post-Chatterley, post-Wolfenden age, taking into account all circumstances, and judging the matter from the point of view of reasonable contemporary standards, I cannot believe that Sergeant Anderson’s language was legally ‘offensive'”.

Fuck is an interesting word, linguistically speaking.  It has the virtues of brevity, adaptability, expressiveness and is understood universally.  It has a huge number of synonyms, ranging from coy euphemisms to acceptable jocular equivalents to coarse vulgarities.

Oddly, it has very few polite equivalents.  Strictly speaking, there is no single english word in current use which bears the same primary meaning.  It may be thought that copulate is an exact synonym for the verb to fuck, but copulate has a broader meaning: “To couple, conjoin, link together; to become conjoined or united”.  In its sexual meaning, it is primarily confined to zoology.

Fornicate is the second contender, but it is, strictly, confined to sexual intercourse between a man and an unmarried woman.

According to the second edition of the Oxford English Dictionary, the only verb which has as its only meaning “engage in sexual intercourse” is subagitate.  However, that word has not been recorded in use since 1693.  Not until now, that is.

In order to refer to the activity which  fuck describes, it is necessary to engage in circumlocution or periphrasis.  Thus we get make love to; sleep with; engage in sexual relations with, etc.

Along with cuntfuck was excluded from dictionaries and almost all writing from the end of the 18th century until 1960, when the Lady Chatterley trial was held, and both words were welcomed back from the Siberian gulags of condemned words.  Not without difficulty, it has since made its way onto stage and screen.  It must be said that an activity which is so popular and widespread has been poorly served by polite language.

It was not always so.  Fuck is recorded as being used in more-or-less respectable literature as early as 1500, and it is found in Florio’s Italian-English dictionary (1598).

It is interesting to reflect on the social process which results in a (nearly) universal activity having no convenient and polite verbal tag to denote it: the activity becomes very inconvenient to discuss, and so it is not discussed, at least in Polite Society.  Suppose a group of intelligent, decent and literate people who wish to discuss sex.  Instead of using fuck as verb and noun, they must resort to have sexual intercourse with (verb); an act of sexual intercourse (noun).  Instead of the participial use fucking, they must say having sexual intercourse, and likewise for the verbal noun form fucking.  And even these inelegancies involve a circumlocution, since intercourse is a word of wider application.

George Orwell wrote of the use of language to control thought (see especially his treatise on Newspeak in Nineteen Eightyfour).  The same process has made talk about sex so difficult if social conventions are to be observed.  Not surprisingly, a huge number of slang and colloquial words have sprung up to liberate thought and language in the middle ground between polite speech and the taboo-word.

Although the following words all describe the same thing, they have won acceptance: if not in the salon, at least in the outer-rooms of polite society: play mothers and fathers, go upstairs, make babies, get one’s jollies, play hide the sausage, get into one’s pants, have a tumble,.  And then there are the earthier monosyllabic inventions: stuff, screw, roger, pork, poke, bang, bonk, root, hump..  Note that these can be used both as verb and noun. Interestingly, it is easy to see that some of these synonyms are more acceptable than others, but all are more accepted than fuck.  Generally, the more humorous the construction, the more acceptable it is.

There are many jocular noun constructions which also provide the same meaning, and range in acceptability, although none of them has the versatility of their one-word equivalents: Ugandan affairs, country matters, parallel parking, horizontal folk-dancing, you know what, indoor sledging, knee-trembler.  Again, as the allusion retreats from sex and approaches humour, it becomes more acceptable.

Although the following words all describe the same thing, they have won acceptance (if not in the salon, at least in the outer-rooms of polite society): play mothers and fathers, go upstairs, make babies, get one’s jollies, play hide the sausage, get into one’s pants, have a tumble. And then there are the earthier monosyllabic inventions: stuff, screw, roger, pork, poke, bang, bonk, root, hump. Note that these can be used both as verb and noun. Interestingly, it is easy to see that some of these synonyms are more acceptable than others, but all are more accepted than fuck. Generally, the more humorous the construction, the more acceptable it is.

There are many jocular noun constructions which also provide the same meaning, and range in acceptability, although none of them has the versatility of their one-word equivalents: Ugandan affairs, country matters, parallel parking, horizontal folk-dancing, you know what, indoor sledging, knee-trembler. Again, as the allusion retreats from sex and approaches humour, it becomes more acceptable.

Then there is swive:

‘swive, v. Obs or arch:

  • To have sexual connexion with, copulate with (a female)
  • To copulate…

I had always believed, before I checked it, that swive was a slang word. In fact, it is a sturdy Old English word, related to the Old High German sweib (meaning sweep or swing). But for the fact that (apparently) its primary meaning is not gender neutral, it deserves to be ranked alongside subagitate.

Chaucer used it in The Miller’s Tale, The Reeve’s Tale, and also in The Manciple’s Tale:

For all your watching, bleared is your bright eye
By one of small repute, as well is known,
Not worth, when I compare it with your own,
The value of a gnat, as I may thrive.
For on your bed your wife I saw him swive.

Chaucer’s use of the word may not be enough to ensure its respectability. Later in The Manciple’s Tale, the episode above is referred to again:

Masters, by this example, I do pray
You will beware and heed what I shall say:
Never tell any man, through all your life,
How that another man has humped his wife;
He’ll hate you mortally, and that’s certain.

Chaucer’s use of the word may not be enough to ensure its respectability. Later in The Manciple’s Tale, the episode above is referred to again:

Masters, by this example, I do pray
You will beware and heed what I shall say:
Never tell any man, through all your life,
How that another man has humped his wife;
He’ll hate you mortally, and that’s certain.

On balance, it may still be advisable to prefer subagitate in genteel company, where clarity of meaning is traditionally subordinated to elegance. But swive is justifiable on historical grounds, and hump will not cause too many problems, as long as you sound the h.

In April 1914, Mrs Patrick Campbell created a sensation in London by uttering the word bloody on the stage, in the first performance of Pygmalion.  That word had been banned from books and stage since the middle of the 18th century. Before then, it had been accepted in polite use, but had gradually fallen into disgrace.  Since Shaw took the daring step of writing it into Pygmalion, it has returned to acceptable use.  Only in the most proper circles would it raise eyebrows now.  Its only use (relevantly) is as an intensifier.

Looked at solely as a lexical unit, fuck is a very good, sturdy, versatile and descriptive word.  If our social masters could reconcile themselves to the idea that sex is a legitimate part of human existence and is here to stay, it may be that fuck will eventually be accepted in polite use.  But then it would rapidly lose its utility as a swearword.

 

Quotations

The redoubtable (but flawed) F.E. Smith (1872-1930) was the subject of a few biographies: FE (hagiography, by his son); Lord Birkenhead by ‘Ephesian’ (Bechofer Roberts); The Glittering Prizes by William Camp – distinctly not hagiography.  Incidentally, the phrase ‘the glittering prizes’ is a quotation from F.E. Smith, who said in a Rectorial address in Glascow in November 1923:

The world continues to offer glittering prizes to those with stout hearts and strong swords.

Incidentally, in 1976 ‘The Glittering Prizes’ was the name of a 6-part TV mini-series with Tom Conti.    That is, arguably, the best form of quotation, although I do not think the author of the expression was identified: possibly because it was set in Cambridge, and Smith went to Oxford.

The most recent biography of F.E Smith is by John Campbell, published in 1991.

Given that our trade is words, lawyers are significantly under-represented in the matter of quotations.  Perhaps the best remembered is the exchange between Judge Willis and F.E. Smith in a case in which the Plaintiff, a young boy, had been blinded because of the alleged negligence of the tramways company, for whom Smith was acting.  When the judge heard that the boy had been blinded he suggested that the boy stand up, so the jury could see him better.  Smith did not like the idea.  This exchange followed:

FE: Perhaps Your Honour would like to have the boy passed around the jury box.

Judge: That is a most improper suggestion.

FE: It was provoked by a most improper suggestion.

Judge: Mr. Smith, have you ever heard of a saying by Bacon – the great Bacon – that youth and discretion are ill-wedded companions?

FE: Indeed I have, Your Honour; and has Your Honour ever heard of a saying by Bacon – the great Bacon – that a much talking judge is like an ill-tuned cymbal?

Judge: You are extremely offensive, young man .

FE: As a matter of fact we both are; the only difference between us is·that I am trying to be and you can’t help it …

It is hard to know whether the exchange has been polished up after the event, but it appears in substantially identical form in the biographies by Bechofer Roberts (1926) and Campbell (1991)

In a later case, Judge Willis and FE had this shattering exchange:

Judge: Whatever do you suppose I am on the bench for, Mr Smith?

FE: It is not for me, M’lud, to attempt to fathom the inscrutable workings of Providence

My favourite legal quotation of all times was made by John Clerk. He was a very bright barrister from Edinburgh later appointed to the Supreme Court as Lord Eldin – Eldin not Eldon, although Lord Eldon’s name before he was elevated to the peerage was John Scott).

Anyway, he was so bright that he was sent to London, as junior counsel, to argue a House of Lords appeal by himself – not led by a silk.

It was an appeal which involved the Water Act, so he used the word water quite a lot, and fairly distinctively because of his Scottish accent.

At one point, one of the Law Lords (who should have known better) said to him

“Tell me Mr Clerk, in Scotland do you spell water with two t’s?”

His reply was quick and dangerous, but brilliant:

“No my Lord, we do not.  But we still spell manners with two n’s”

It’s the sort of reply which might only occur to most people a couple of weeks later.

But it is also the sort of reply which most of us would be proud to think up on the spot and have the courage to say it.

There are very few advocates who are the subject of biographies published decades after their death.  The only other who comes to mind is the dazzling, but imperfect, Clarence Darrow (1857-1938) who was also the subject of a few biographies, the first in 1943 and the latest in 1980.  It was Darrow who devised and ran the famous Scopes case, also known as the Monkey Trial, and he acted for Dickie Loeb and Nathan Leopold in their famous death penalty case in Chicago in 1924.  Darrow once said:

I do not pretend to know where many ignorant men are sure – that is all that agnosticism means.

Darrow was famous for his opposition to the death penalty. He is, for obvious reasons, referred to extensively in Life Plus Ninety-nine Years by Nathan Leopold (Greenwood Press 1957).  He is quoted as saying:

I have never wanted to see anybody die, but there are a few obituary notices I have read with pleasure.

There are many books of quotations.  My favourites include: The Book of Insults and Irreverent Quotations (Hook and Kahn); The Dictionary of Musical Quotations (Wordsworth Library); The Wordsworth Dictionary of Musical Quotations (Watson); Cassell’s Book of Humourous Quotations ; Collins Dictionary of Literary Quotations ; Magill’s Quotations in Context; The Thesaurus of Quotations (Fuller); Brewer’s Famous Quotations (Rees); History in Quotations (Cohen and Major); The International Thesaurus of Quotations (Tripp); The Oxford Dictionary of Modern Quotations (ed. Knowles); The Oxford Dictionary of Quotations (4th ed) ; Simpsons Contemporary Quotations (Simpson and Boorshin); The Dictionary of Australian Quotations (Murray-Smith); The Dictionary of Biographical Quotations (Winke & Kenin); The Dictionary of Insulting Quotations (Green).

It is not easy to find quotations by lawyers.  In the books noted above, there are a few quotes by F.E Smith (later Lord Birkenhead), but in 1985 The Quotable Lawyer by Shrager and Frost was published by New England Publishing.  And books of anecdotes are common enough in the legal profession (I have 47 of them).  If a lawyer is important enough to be the subject of a biography, that book will inevitably include some quotations by the subject of the biography.  Even then, it’s thin pickings.

This lengthy nod to clever quotations from lawyers is by way of introducing one of the most famous quotations of all time: not by a lawyer, but by the famous physicist Isaac Newton.  In a letter to Robert Hooke on 5 February 1676:

“If I have seen further it is by standing on the shoulders of giants”

The quotation is so famous that the phrase ’the shoulders of giants’ was recently  inscribed on the English 2 pound coin.

But there is more to it.  Isaac Newton is arguably the most famous scientist of all time.  He published the laws of motion and universal gravitation in his famous book Philosophiæ Naturalis Principia Mathematica (Mathematical Principles of Natural Philosophy, 1687), which is generally referred to simply as “Principia Mathematica”.

Much of Newton’s adult life was spent pursuing what would now be considered mysticism.

What is less commonly known in connection with Newton’s famous observation is that Robert Hooke (1635-1703) was a very famous scientific rival of Newton (1643-1726) and, like Newton, had developed many significant scientific principles.  He was a polymath (like Newton) and in 1996 was described by Alan Chapman as ‘England’s Leonardo’.  He built the earliest Gregorian telescope, and observed the rotations of the planets Mars and Jupiter.  In 1665 published Micrographia, which prompted microscopic investigations. His observations of microscopic fossils led him to endorse biological evolution: several centuries ahead of Charles Darwin.

Hooke proposed that gravity heeds an inverse square law, and first hypothesised such a relation in planetary motion, too: a principle which Newton propounded in his law of universal gravitation.  That was the underlying cause of the rivalry between Newton and Hooke.

In addition to their notorious scientific rivalry, Robert Hooke was very short, so he could not have been considered a ‘giant’.

It has always struck me as odd that a comment, so famous that it was inscribed on an English coin, was originally intended as an insult.  At least John Clerk did not try to hide his purpose.

Quotations by Hooke are hard to find.  That said, quotations by Newton are relatively rare (apart from the ‘shoulders of giants’ quote), and most books of quotations ignore some of the best observations by lawyers.

(For those who are interested in gathering quotations by lawyers R.E. Megarry wrote Miscellany At Law (1955), A Second Miscellany At Law (1973) and A New Miscellany At Law (2005).  Although they do not contain any of the quotations above, they contain many excellent legal stories, across hundreds of years.)

Magna Carta-myth and reality

Most Australians would, if asked, probably identify Magna Carta as the foundation stone of our legal system.  They would have a vague sense that Magna Carta was the start of it in England and that, in 1788, the system built on Magna Carta was transplanted into Australia.

Magna Carta is mostly a myth, but provides a great example of an enduring truth: that in political matters, mythology is far more important than facts.

Popular history tells us that Magna Carta was sealed on the meadow at Runnymede on 15 June, 1215.  So, on 15 June 2015, we commemorated 800 years since it was sealed.

In fact, we acknowledged the wrong document and the wrong day.

The document that was sealed on 15 June 1215 was the Articles of the Barons.  The document we think of as Magna Carta was based on the Articles of the Barons and was prepared and engrossed a few days later, some say on 19 June 1215.

But in any event, England switched from the Julian calendar to the Gregorian calendar in 1752, so as to bring the calendar back into synchronisation with the real world.  When that switch happened, eleven days simply disappeared.  So while it is true that the Articles of the Barons, later called Magna Carta, was signed on 15 June 1215, that day was 800 years minus 11 days before 15 June 2015.  The date which is exactly 800 years after the signing of the Articles of the barons was actually 26 June this year.

But this does not matter: it is the symbolism of the thing that really counts, and I doubt that anyone thought about Magna Carta on 26 June 2015.

Winston Churchill wrote about the signing of Magna Carta in volume 1 of his great History of the English Speaking Peoples:

“On a Monday morning in June, between Staines and Windsor, the barons and Churchmen began to collect on the great meadow at Runnymede.  An uneasy hush fell on them from time to time.  Many had failed to keep their tryst; and the bold few who had come knew that the King would never forgive this humiliation.  He would hunt them down when he could, and the laymen at least were staking their lives in the cause they served.  They had arranged a little throne for the King and a tent.  The handful of resolute men had drawn up, it seems, a short document on parchment.  Their retainers and the groups and squadrons of horsemen in sullen steel kept at some distance and well in the background.  For was not armed rebellion against the Crown the supreme feudal crime? Then events followed rapidly.  A small cavalcade appeared from the direction of Windsor.  Gradually men made out the faces of the King, the Papal Legate, the Archbishop of Canterbury, and several bishops.  They dismounted without ceremony.  Someone, probably the Archbishop, stated briefly the terms that were suggested.  The King declared at once that he agreed.  He said the details should be arranged immediately in his chancery.  The original “Articles of the Barons” on which Magna Carta is based exist to-day in the British Museum.  They were sealed in a quiet, short scene, which has become one of the most famous in our history, on June 15, 1215.  Afterwards the King returned to Windsor.  Four days later, probably, the Charter itself was engrossed.  In future ages it was to be used as the foundation of principles and systems of government of which neither King John nor his nobles dreamed.”

King John was the youngest of five sons of Henry II.  His oldest brother, Richard, was king, but went off to fight the crusades, where he earned his nickname “Lionheart”.  John’s elder brothers William, Henry and Geoffrey died young.  Richard died in 1199, and John became king.

Richard and John both incurred huge expenses in war, especially in suppressing rebellion in their French domains in Normandy and Anjou.  Both leaned on their nobles to support the expense.  John, who had managed to make himself deeply unpopular, met resistance.  John made increasing demands for taxes of various sorts, including scutage – money paid to avoid military service – and he sold wardships and heiresses for large sums.  Henry II and Richard had done the same, but John’s nobles resisted.  By May 1215, the barons had occupied London and made a series of demands.

In June 1215, the barons met King John at Runnymede.  The Archbishop of Canterbury, Stephen Langton, played an important role in mediating the dispute and eventually the Articles of the Barons were prepared and sealed.

Before it became known as Magna Carta, it was set aside.  Two months after the Articles of the Barons were signed King John (who was not a reliable person) prevailed on Pope Innocent III to declare the Deed invalid.  The Pope said it was “not only shameful and base but illegal and unjust.” He declared it null and void, and ordered King John not to observe it.  This was in August 1215, just 10 weeks after the great symbolic meeting at Runnymede.

The barons were not happy.

John died in October 1216.  His son Henry was only nine years old.  Henry’s advisors saw that re-issuing the Charter in modified form would help keep the young king in power.  So an amended version was issued in 1217, under the title Charter of Liberties.  At the same time the Charter of the Forest was issued.  The Charter of Liberties was the bigger of the two, and soon became known as the Great Charter: Magna Carta.

When he had come of age, Henry III swore his allegiance to a modified version of Magna Carta.  This took place on 11 February 1225, so that is probably the most appropriate date to observe.  The 1225 version of Magna Carta more closely resembles the document which has been so venerated for so long.

Perhaps people will celebrate the 800th anniversary of Magna Carta on 11 February 2025, or perhaps on 22 February 2025 to allow for the change in calendars.  But probably not.

The 1215 version of Magna Carta includes many provisions which are concerned with taxes.  For example:

(2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a ‘relief’, the heir shall have his inheritance on payment of the ancient scale of ‘relief’.

(12) No ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter.  For these purposes only a reasonable ‘aid’ may be levied.  ‘Aids’ from the city of London are to be treated similarly.

(15) In future we will allow no one to levy an ‘aid’ from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter.  For these purposes only a reasonable ‘aid’ may be levied.

(27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church.  The rights of his debtors are to be preserved.

(28) No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.

(30) No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent.

And there are plenty of surprises:

(4) The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services.  …

(5) For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself.  When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear.

(6) Heirs may be given in marriage, but not to someone of lower social standing.  Before a marriage takes place, it shall be’ made known to the heir’s next-of-kin.

(10) If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands.  If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.

(11) If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it.  If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands.  The debt is to be paid out of the residue, reserving the service due to his feudal lords.  Debts owed to persons other than Jews are to be dealt with similarly.

(33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast.

(35) There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom.  There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells[1] within the selvedges.  Weights are to be standardised similarly.

The only part of Magna Carta which is widely remembered (if that is the right word) is found in Articles 39 and 40:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

Together, these became Article 29 of the 1225 version:

(29) No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.  To none will we sell, to none will we deny, to none will we delay right or justice.

Considering the mystic significance which is attached to Magna Carta these days (and especially in 2015) it is interesting to note that Shakespeare, in his play King John, does not mention it at all.  He mentions Stephen Langton, the Archbishop of Canterbury who played a large part in compiling the document.  But he mentions Langton just once, and in passing.  He does not mention Runnymede.

Sir Edward Coke

So why do we honour it so greatly? The short answer is: Sir Edward Coke.  And here we embark on a truly remarkable story of a new reality being formed as myth is piled on myth.

Sir Edward Coke entered the English parliament in 1589, during the reign of Queen Elizabeth I.  In 1594, he became Attorney-General and still held that role when James VI of Scotland became James I of England in 1603.

Elizabeth’s father, Henry VIII, had famously broken from the Church of Rome because he wanted a divorce.  The formation of the Church of England led to increasing oppression of English Catholics.  The oppression sharpened during the reign of Elizabeth.  Elizabeth died without leaving an heir or any obvious successor.  When James VI of Scotland was cautiously chosen as Elizabeth’s successor, the oppressed Roman Catholics of England had hopes that James might treat them more leniently.  After all, James was married to Anne of Denmark who, although a Protestant, had converted to Catholicism.

But these hopes were dashed, and a group of well-educated, pious, Catholic nobles conceived a bold plan to resist the increasing oppression: they would blow up the Houses of Parliament on the day of its opening.  The opening of James’ first Parliament was delayed because the Plague had spread through London.  For the opening of the Parliament, the Royal family, the Lords and the Commons would collect together in the Great Hall at Westminster.  Eventually the date for the opening of Parliament was set for 5 November 1605.  But word of the conspiracy got out.  The night before Parliament was due to open, the whole Parliament building was searched.  In a room immediately below the great hall, a man who called himself John Johnson was discovered.  He had 36 barrels of gunpowder: enough to blow the whole place sky-high.

John Johnson was also known as Guy Fawkes.

King James personally authorised the torture of John Johnson, in an attempt to identify the other conspirators.  Torture was unlawful then, as it is now.  But King James considered that he ruled above the law.  He adhered to the theory of the Divine Right of Kings.  In this, we see the elemental force which was at play in the Constitutional struggles of the 17th Century.  The key question was this: Does the King rule above the law, or is he subject to it?

The trial of the Gunpowder conspirators began on 26 January 1606.  Sir Edward Coke[2], as Attorney-General, prosecuted the case.  He won.  He was a favourite of King James because, on many occasions, he had supported King James’s view that the King ruled above the law.  Later in 1606 he was rewarded for his loyalty and good service by being appointed Chief Justice of Common Pleas.

On the bench, Coke’s view seems to have changed.  This sometimes happens to judges, to the great irritation of governments.  In a number of cases, Coke CJ insisted that the King ruled subject to law.  It is a principle we take for granted these days, but in the early 17th century it was hotly contested.  He rejected King James’ interference with the operation of the Courts.  The King dismissed him from office in 1616.  He re-entered Parliament.

The Petition of Right

In 1627 (the second year of the reign of Charles I) the King ordered the arrest of Sir Thomas Darnel and four others who had refused to advance a compulsory “loan” to the King.  They sought habeas corpus.  The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King].

Darnel’s case in 1627 prompted Coke to draft for Parliament the Petition of Right (1628).  The Petition raised, very politely, various complaints about the King’s conduct, including that:

  • he had been ordering people, like Darnel, to be jailed for failing to lend him money;
  • he had been billeting soldiers in private houses throughout the country against the wishes of the owners;
  • he had circumvented the common law by appointing commissioners to enforce martial laws and those commissioners had been summarily trying and executing “such soldiers or mariners or other desolate persons joining with them as should commit … (any) outrage or misdemeanour whatsoever …”;
  • he had been exempting some from the operation of the common law.

The Parliament prayed that the King “would be graciously pleased for the further comfort and safety of your people, to declare … that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm …”.

The Petition of Right reflected Coke’s distilled thoughts about English law and politics.  In his most famous work, The “Institutes of the Lawes of England”, Coke elevated Magna Carta to previously unrecognised significance.  He claimed of it that it was the source of all English law, and in particular he claimed that it required that the King rule subject to law, not beyond it.  He said that Magna Carta “is such a fellow that he will have no sovereign.”

The Petition of Right was Coke’s way of creating (he would have said “recognising”) the essential features of the English Constitutional framework.

The Petition of Right was adopted by the Parliament but Charles I would not agree to it.  Charles I, like John centuries earlier, wanted to continue raising taxes without the inconvenience of Parliament.  Like King John, he did it by exacting large sums from his nobles, as he had done in Darnel’s case.  Again, the nobles were unhappy.  The Civil War started in 1642.  Charles lost the war and, in 1649, lost his head.  Then came Cromwell, Charles II and James II.

James II was a Catholic and was not popular.  His son-in-law, William of Orange, was persuaded to usurp the throne of England.  In what became known as the “Glorious Revolution”, on 5 November 1688, William landed at Brixham.  That year, 5 November turned out worse for James II than it had in 1605 for James I.  James was deposed and William and Mary became joint sovereigns in James’s place.

But there was a condition.  William had agreed in advance to accept the Petition of Right.  So the parliament of 1689 adopted the petition of Right and it became the English Bill of Rights.  By this path, Sir Edward Coke’s views on Magna Carta gained an unassailable place in the fabric of English law.

In form, the Bill of Rights declares itself to be “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”.

It recites and responds to the vices of James II.  Its Preamble starts this way:

“…  Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom …”

and it then declares certain ‘ancient rights and liberties’.

The English Bill of Rights does, in some ways, reflect Magna Carta.  So:

Magna Carta (1215) Article 12: No ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter.  For these purposes only a reasonable ‘aid’ may be levied.  ‘Aids’ from the city of London are to be treated similarly

Bill of Rights, clause 4: That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

And the ideas underlying Article 20 of Magna Carta and clause 10 of the Bill of Rights are similar:

Magna Carta (1215) Article 20: For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.  In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court.  None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Bill of Rights, clause 10: That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Beyond this other parallels can be found, but it takes the ingenuity of Sir Edward Coke to make them sound persuasive.  For example, Article 61 of Magna Carta of 1215 (which was not repeated in the 1225 version adopted by Henry III) provides for a council of 25 barons to hold the King to his promises, and clause 13 of the Bill of Rights requires Parliaments to be held frequently.

But Coke had persuaded a generation of lawyers and historians that the liberties in the Petition of Right, and thus in the Bill of Rights, were recognised in Magna Carta.  So the importance of Magna Carta was picked up and sustained by the Bill of Rights.

The US Bill of Rights

We do not think about the English Bill of Rights very much these days.  When we hear about “The Bill of Rights” these days, we automatically think of the United States of America.  It is not an accident.  The American colonies had been established by the English when they settled Jamestown in 1607.  By 1773, things were not going well.  The Boston Tea Party took place on 16 December 1773.  It was the colonists’ protest against having to pay taxes to a distant government in which they had no representation.  In 1776 the colonists decided to sever their ties with Britain and on 4 July 1776 they signed the Declaration of Independence.

In 1789 a Constitution was proposed for the newly independent United States of America.  It was a bold and unprecedented venture.  The idea of a federation of states with local as well as a central government was a novelty back then.  The thirteen colonies, anxious about the possible tyranny of a Federal government, put forward 10 amendments to the Constitution.  Those amendments are known, in America and across the English-speaking world, as the Bill of Rights.  They closely reflected the English Bill of Rights of 1689.

Although it is sometimes thought the US Bill of Rights is a human rights document, it is no such thing.  It is no less than a reflection of what is now called the Rule of Law.

The parallels between the English Bill of Rights and the US Bill of Rights are very clear:

English Bill of Rights (1689) US Bill of Rights (1791)
Preamble: By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law 5 – No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
3 – That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious; 3 – No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
4 – That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; See US constitution Article 1, Section 9 “…No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time….”
7 – That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; 2 – A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
10 – That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; 10 – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
5 – That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal; 3 – No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Two important provisions of the US Bill of Rights reflect Articles 39 and 40 of the 1215 Magna Carta (Article 29 of the 1225 re-issue).

Magna Carta 1225

Art 29: No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.  To none will we sell, to none will we deny, to none will we delay right or justice.”

US Bill of Rights

“8 – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …  and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; …  and to have the Assistance of Counsel for his defence.

9 – …the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court”

It is no great surprise that the American colonists drew so heavily on the English Bill of rights.  Sir Edward Coke’s Petition of Right represents a stand against the Divine Right of Kings: it seeks to place the ultimate law-making power in the people, through their elected representatives, and it sought to ensure that no-one would stand above the law.  The American colonists in 1789 were in the process of creating a new and powerful body which would hover above the various States.  It looked as though they might be creating a new monarchy.  To guard against that, they proposed the first 10 Amendments to the proposed Constitution.

The US Bill of Rights has very little to do with human rights.  It is all about constraining the power of the new Federal government.

The principle of legality

Article 29 of the 1225 Version of Magna Carta is sufficient justification for the document’s fame.  Its provisions have since been taken to stand for the proposition that punishment can only be imposed by a court, that laws apply to all equally according to its terms, and that all people are entitled to have their legal rights judged and declared by a Court.  This is more grandly expressed as the Principle of Legality or the Rule of Law.

In Australia, we did not adopt a Bill of Rights in our Federal Constitution, and our Constitutional fathers did not have the same reasons to be anxious about a Federal government as the American colonists had a century earlier.  But the High Court of Australia has found in the structure of our Constitution a Principle of Legality which reflects the spirit of Magna Carta as interpreted by Coke.

The power of government includes the legislative power[3], the executive power[4], and the judicial power[5].

The Australian Constitution is divided into chapters.  The first three chapters create the Parliament, the Executive Government and the Courts respectively.  The High Court very early on decided that this gives each arm of government exclusive rights within its own domain.  So, for example, only the parliament can exercise the legislative power, and only the courts can exercise the judicial power.  For present purposes, that means that courts can impose punishment, but the Parliament and the Executive cannot.  Parliament can pass a law which says “Doing x is illegal; penalty 5 years’ jail” but only a court can find that a person has done x, and impose the appropriate punishment.

At least according to Coke, this echoes the provision in Article 39 of Magna Carta that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals…”

It seems odd, and not a little ironic that, in the year of the 800th anniversary of Magna Carta, Australians were confronted with a government which is seriously challenging the Rule of Law.

A Bill introduced into the Federal Parliament in 2015 authorised guards in immigration detention centre to treat detainees, including children, with such force as they think is reasonably necessary.  As a retired Court of Appeal judge said to a Parliamentary enquiry, this would, in theory, allow a guard to beat a detainee to death without the risk of any civil or criminal sanction.

The Social Services Legislation Amendment Bill removed financial support for patients with a mental illness if they are charged with an offence which could carry a sentence of 7 years or more.  This automatically puts a defendant at a disadvantage when facing a serious charge, and they suffer that disadvantage regardless whether they are innocent or guilty.  It looks very much like punishment without trial.

The Abbott government advanced the idea that any Australian who goes to fight with the Islamic State should be stripped of their citizenship by a Minister of the Crown, that is to say, by a member of the Executive government.

Having your citizenship cancelled looks very much like a punishment: but the Abbott government was determined to be able to do it without troubling a Court to see if the relevant facts are proved and the punishment is required by law.  And, archaic as it seems, letting the Minister take away a person’s citizenship looks very much like outlawing or exiling the person without the judgment of his equals.  Punishment without trial.

This is not a political argument: it is an argument about the rule of law and is as serious and important as it was in 1215.

In the 21st century it is too late to deny that Magna Carta has developed a level of significance which its authors may not have noticed or intended.  If we are true to the spirit which Sir Edward Coke found in it; if we are true to the same spirit which informed the Petition of Right and the English Bill of Rights and the American Bill of Rights then we owe it to the past and to the future to resist any attempt by any government to punish or outlaw or exile any person, except by the judgment of his equals.

 

[1] An ancient unit of measure.   But not a very useful unit of measure in a standardised system, because its value varied from place to place.  The English ell = 45 inches; the Scottish ell = 37·2 inches; the Flemish ell = 27 inches.

[2] pronounced “Cook”

[3] the power to make laws

[4] the power to give effect to laws and policies

[5] the power to decide legal questions, impose punishments etc.

Are We There Yet?

I’m a bit late posting this: just came across it again.  it’s the Barry Jones Oration I gave in 2013.

Are We There Yet?  

It is a great privilege to be giving a talk in honour of Barry Jones.

Like many others, I first became aware of Barry when he was an apparently permanent fixture on Pick-a-Box. Most of us remember that he often tangled with Bob Dyer and quibbled about the expected answer, most famously when he was asked who the first British Governor-General of India was. He gave the expected answer, Warren Hastings, but then pointed out that, strictly, Hastings was only the Governor of Bengal. The first Governor-General of India was Lord William Bentinck.

But what distinguished Barry’s participation in Pick-a-Box was a disconnect between his purposes and Bob Dyer’s purposes. For Bob Dyer, the show was all about competing for material reward; for Barry it seemed to spring from a genuine interest in knowing things. I will never forget how excited I found it to see a person who knew so much about so much.

His extraordinary run on that show started in 1960 and ended in 1968. Viewed from the present, that may not seem such a long time but, to orient it to my own life, it began when I was in year 6 and ended when I was in my second year at Monash University. I did not imagine then that I would later be able to count him as a friend.

No-one who lived through those years could forget the mark Barry made in his mighty struggle to save Ronald Ryan from the gallows. While Barry did not manage to save Ryan from the crazed vindictiveness of Henry Bolte, he won the larger fight: although Ryan was eventually hanged, in February 1967, he was the last person to be executed in Australia.

Barry once predicted that one day there would be more computers than cars in Tasmania. He was ridiculed for this.

The received wisdom then was in line with what had been said for years by people who should have known:

  • In 1943, Thomas Watson, the chairman of IBM said: “I think there is a world market for maybe five computers.”
  • In 1957 the editor in charge of business books for Prentice Hall said: “I have traveled the length and breadth of this country and talked with the best people, and I can assure you that data processing is a fad that won’t last out the year.”
  • And 20 years later, in 1977, the president of Digital Equipment Corporation, Ken Olson, said: “There is no reason anyone would want a computer in their home.”

In this and many other things, Barry sees much further than any of us. It is no accident that he is the only Australian to be a Fellow of all four learned academies: the Australian Academy of Science; the Academy of Social Sciences in Australia, the Australian Academy of the Humanities and the Australian Academy of Technological Sciences and Engineering.

In 1962, when I was in year 8 at school and Barry was cleaning up all comers on Pick-a-Box, I discovered the writing of James Thurber. In particular, his Fables for our Time and Further Fables for our Time. These were little stories in the style of Aesop’s fables: short, simple stories which generally had small animals as the main protagonists and ended with an explicit moral.

Thurber’s reason for choosing that style was probably the same as Aesop’s: it meant he could write subversive things, but get under the radar of government censors. He wrote during the McCarthy era, when dissident thinking was even more dangerous and unwelcome in America than it is today.

In the last of his fables, Thurber tells of a lemming who, on his way home after a late night, stumbles, hits his head and, dazed, starts running towards the cliff. He accidentally starts a stampede. The other lemmings who follow him toward the cliff are no more certain why they are running than he is. They hurtle over the cliff, some shouting “We are saved” and others shouting “We are lost”.

The moral of the story was: “All men should strive to learn before they die, what they are running from, and to, and why”.

As a 12-year old I was greatly impressed by that moral. It has stood the test of time: I am still impressed by it, as the most unassailable single sentence of philosophical truth.

Thurber’s question shares a frontier with the question all children ask, as the miles roll tediously by: Are we there yet?

The answer depends on where you trying to go.

For human beings, we discover we are there just as we go over the cliff. At that moment it is a bit late to deal with Thurber’s question.

For Societies, Thurber’s question is just as important, but the cliff is a much more abstract idea. But every Society should ask: Are we there yet? Because asking that question focusses the mind on where we are trying to go.

Barry has a 17 year advantage on me, and his memory is far better stocked than mine. He would certainly have details which would illuminate the present landscape better than I can. But even with my more limited vision, it looks as though Australia has not worked out what it is running from, or to or why.

As a country, we are performing way below our potential. We have never been perfect. No country is. But I am old enough to remember how things were in the 1950s.

Post-war migration to Australia presented some interesting challenges for us.

I remember during the 1950’s hearing people of my parents’ generation talking about the DPs and dagos and wogs who were coming into the country. Old Australians complained that New Australians were too religious, they had too many kids, they didn’t learn English, they didn’t fit in. Their women dressed all in black from head to foot and their food was weird: coffee, with froth on the top. Spaghetti which didn’t come from a tin. And, heaven help us, they ate squid.

They challenged our view of ourselves.

What I did not notice at the time was that, by small degrees, those same people began to adopt some of our ways, and we began to adopt some of theirs. It became smart and fashionable to eat at Italian and Greek restaurants.

The stereotypes of the 1950s faded, and our fear of wogs and dagos evaporated.

One way or another, things seemed to work out fairly well. Bit by bit the White Australia policy was dismantled. In 1967 we overwhelmingly supported a referendum to recognize Aboriginal Australians as part of the human population of the country which we had colonized in 1788.

The Pill and the Swinging Sixties did not spell the end of civilization.

Despite the direst predictions, it turned out that 6 o’clock closing was not essential to the good functioning of Society.

And some time in the 1960s the divide between Catholics and Protestants – something which had broken families in the past – faded away.

In the late 1970s there was another wave of new faces, this time refugees who had fled Vietnam and Cambodia. Fraser persuaded Whitlam that we should let Vietnamese boat people come to Australia. A lot came: about 25,000 a year for a few years. Fraser said we had been part of the problem and we had to be part of the solution.

The problem was brought to us in terrible images and in real time. For the first time in the history of human conflict, we saw events as they unfolded. Previously, we had to wait until the hostilities ended before we got the pictures. We only learned of the concentration camps when allied troops conquered Germany and the world was exposed to the skeletons, living and dead, in Belsen and Auschwitz and Dachau and other places, and suddenly we understood what the Jewish refugees had been running from when we turned our backs on them at the Evian conference in 1938.

But the Vietnam war came to us each night on the TV news. And newspapers showed us the appalling image of a Buddhist monk who set himself on fire in 1963; and by another photograph of a police chief blowing a man’s brains out in the street.

Later, a photograph of a naked child running, terrified, from her burning village. And images of vast areas devastated by napalm.

It was to Fraser’s credit that he persuaded Whitlam not to make a fuss about the arrival of refugees from Vietnam and Cambodia.

We took another small step forward in 1992, when the High Court departed from centuries of learning and held that Australia had not been terra nullius in 1788: that Aborigines had been here as the owners of the land when white settlers arrived. Rai Gaita illuminated the significance of the Mabo decision when he explained the thinking which had supported the doctrine of terra nullius for so long:

“We love, but they ‘love’; we grieve, but they ‘grieve’; and of course we may be dispossessed, but they are ‘dispossessed’. That is why, as Justice Brennan said, racists are able ‘utterly to disregard’ the sufferings of their victims. If they are to see the evil they do, they must first find it intelligible that their victims had inner lives of the kind which enable the wrongs they suffer to go deep”.

So far, so good. As a Society, Australia had come to grips with a lot of contentious issues. It hadn’t been perfect, but it was not bad. And we knew that the idea of a fair go was in our DNA: it was not just a marketing idea.

But in 1998, something important and fundamental started to shift. Or perhaps that is just when I began to pay attention. By chance I was briefed to act for the Maritime Union of Australia in what turned out to be a fairly contentious case.

Patricks was one of the two big stevedoring operations in Australia. They were caught out training an alternative, non-union workforce in Dubai and never offered a convincing explanation.

Early in 1998, rumours began to circulate that Patricks were about to do something drastic. As the weeks went by, the rumour firmed into a suggestion that Patricks were about to dismiss the entire unionized workforce on the Australian waterfront. Rumours are not evidence and so there was not much to work with. Innocent of any knowledge about the Workplace Relations Act, I asked what would happen if Patricks acted as the rumour suggested.

Those in the team, who were cleverer and better informed than I was, told me that the workforce would be reinstated, because of the provisions of the Workplace Relations Act. I asked innocently if there were any exceptions to that. They said that the only exception was if Patricks were going out of the business of stevedoring. Well, if they were to go out of the business of stevedoring, Patricks would have to sell their assets, so I suggested that we should write to Mr Corrigan asking for an undertaking not to dispose of Patricks’ assets and not to dismiss the workforce. If he did not give the undertaking sought, then his refusal would provide the evidence we needed.

He treated the request dismissively. He did not give the undertaking. We prepared a motion for injunctions, returnable on the Wednesday before Good Friday. The motion simply sought an order restraining Patricks from disposing of its assets or sacking its workforce.

On Wednesday morning, 8th April 1998, Australia woke to headlines saying that the entire workforce of Patrick Stevedores had been dismissed and had been replaced by an alternative, non-unionized workforce. When I arrived in court, Counsel for Patricks told me that administrators had been appointed to Patrick Stevedores. This was a surprising turn of events. My time practising as a commercial junior in the 1970s and 1980s made me think immediately of Bottom of the Harbour schemes. I thought that probably the court would be unimpressed by Patricks acting precipitately and doing the very thing which the court had been asked to restrain.

The Judge granted a holding injunction and directed that the matter should come back for further argument after Easter. Patricks were required to provide us with all relevant documents showing what had gone on. The picture revealed by those documents was truly astounding.

The previous year, in September 1997, the assets of the main stevedoring companies had been sold to new companies and the resulting credit balances were sent upstream to a holding company. The companies which had always employed the workforce – apparently large and successful stevedoring companies – were left with two assets only: their workforce, and contracts to provide the workforce to the new owners of the assets. These labour hire contracts were, in effect, terminable at will by the company with the assets. The employees had no job security whatever and no means of knowing the fact.

The effective result of this arrangement was that the labour hire company could be jettisoned without harming the enterprise. This made it possible to dismiss the entire workforce in a single stroke. On the ground, nothing at all had changed: Patrick Stevedores still had the appearance of prosperity which it had enjoyed for many decades, but it was a mere shell. The workers were hostage to a corporate shadow, and a CEO with secret plan.

The only party bound to gain from this strategy was the company which owned the assets. The only people bound to lose were the employees. As it happened, an obliging Federal Government had agreed in advance to provide the labour hire company with enough cash to pay the accrued entitlements of the employees when the workforce was sacked en masse. Thus the risks associated with the stevedoring venture were transferred to the workers and underwritten by a Government enthusiastic for waterfront reform at any price.

The case ran at an astonishing pace. We resumed argument before Justice North on the 15th April. The argument ran for three days. On the 21st April, Justice North delivered his Judgment and granted injunctions pending trial. At 3 o’clock that afternoon the Full Federal Court convened. They ordered a stay of Justice North’s orders pending appeal.

The Full Court appeal began the next day, 22nd April and ran over to the 23rd April. At 7 o’clock that night the Full Court gave judgment, upholding the order of Justice North. At 10 pm Justice Hayne in the High Court granted a stay of the Full Court’s orders, pending an application for special leave to the High Court.

The following Monday, 27th April, the seven judges of the High Court convened in Canberra and began hearing Patrick Stevedores’ application for special leave to appeal from the Full Federal Court’s orders. The application ran until the afternoon of Thursday, 30th April.

The following Tuesday, 4th May 1998, the High Court delivered judgments upholding the judgment of Justice North. The process of going from Judge at first instance to appeal to a final hearing by 7 judges of the High Court took three weeks. Ordinarily it would take between three and five years.

For me at least it was a shock to learn that any Australian government would conspire to break its own laws in an attempt to break the union movement: it’s not how patrician blue-bloods are meant to behave. But the Coalition government argued all the way to the High Court that it was OK. They lost.

Then things got worse.

Since the Russians had left Afghanistan, the Taliban had escalated their attacks on the Hazara minority. Millions of Hazara fled Afghanistan. A few thousand reached Australia.

In August 2001, the Palapa I was carrying 438 Hazaras towards Australia.

It began to sink. Australia asked the Norwegian cargo ship, the Tampa, to rescue them. But when it tried to put them ashore at Christmas Island, Australia sent the SAS to take command of the Tampa at gunpoint.

John Howard said the people rescued by Tampa would never set foot in Australia. He said any asylum seeker trying to get protection in Australia would be sent to Nauru: a tiny Pacific Republic with a population of 10,000 people and an area of just 21 square kilometers. He ordered that no humanizing images of the Hazara refugees were to be allowed.

Then September 11 happened. And the Liberal government headed into the 2001 election on the indecent slogan that “We will decide who comes to this country and the circumstances in which thy come”. Liberal propaganda called asylum seekers “illegals” and “queue-jumpers” and said that asylum seekers had thrown their children into the sea.

The Labor party said nothing to contradict the lies. The Liberals, it seemed, had turned into a party which was prepared to lie to the electorate, and gain popularity by mistreating the most helpless people in the world.

For the next few years the cruelty and dishonesty continued. Asylum seekers, innocent of any offence, were held in detention for years until they collapsed into hopelessness and despair.

A little girl, ten years old, held in detention in Melbourne, hung herself.

A little boy, eight years old, held in detention in South Australia, slashed his arms with razor wire.

A man who had been in detention for five years cut himself so often he had ten meters of scarring on his body, but the government insisted that the only treatment he needed was solitary confinement and Panadol.

The Liberal government argued all the way to the High Court that a man who had not committed any offence and was not seen as a risk to anyone, who had been refused a visa but could not be removed from Australia because he was stateless, that this man could remain in detention for the rest of his life.

What was shocking was not only that the government won, but that a Liberal government was prepared to make the argument in the first place.

The Immigration Department held Cornelia Rau in detention for more than a year, in wretched, degrading conditions. She was filmed as she was dragged, naked and protesting, from her cell in Baxter detention centre, being manhandled by a group of guards.

Eventually the Department discovered that she had a visa and was entitled, all along, to be in Australia. It paid her a huge sum in compensation for the brutality and humiliation she had suffered.

We deported Vivian Alvarez-Solon from Australia and dumped her in the Philippines. The Department then realised that she was legally entitled to be in Australia: but it ignored that fact and did nothing to correct its mistake for the next two years.

We ignored the fact that David Hicks was being held and tortured in Guantanamo Bay by our allies, the USA. The Americans told him that, even if he was charged and found not guilty, he would not be released from Guantanamo. We knew this.

Hicks was held without charge for five years and the Australian government did nothing to help him. The Howard government eventually interceded on his behalf when public opinion swung in his favour, and Howard saw that there was an advantage to be had from helping him.

Then Kevin Rudd became leader of the Labor party and won government in late 2007. He promised a better, more humane, policy concerning refugees. And he delivered it.

But then Tony Abbott became leader of the party which still called itself Liberal.

He re-started the anti-refugee rhetoric. Rudd responded by attacking people smugglers. He called them “vermin” and the “vilest form of human life”. He seems to have forgotten that his moral hero, Dietrich Bonnhoeffer, was also a people smuggler.

The attack on people smugglers was ham-fisted at best, and hypocritical at worst. For a start, it lumped all people smugglers into one irredeemable moral group: they were the “scum of the earth”. When today’s refugees wash up on our shores, Abbott and Morrison speak with concern about the boat people who die in their attempt to get to safety, but their concern is utterly false. Instead of attacking the refugees directly, which is their real purpose, they attack the people smugglers instead.

Because, aren’t people smugglers the worst people imaginable? We overlook the fact that Oskar Schindler was a people smuggler, and so was Gustav Schroeder, captain of the ill-fated MS St Louis which left Hamburg in May 1939 with a cargo of 900 Jews looking for help. He tried every trick in the book to land them somewhere safe, but was pushed away. He ended up putting them ashore again in Antwerp, and more than half of them perished in concentration camps.

We also overlook the fact that, without the help of people smugglers, refugees are left to face persecution or death at the hands of whatever tyranny threatens them.

Many recent boat people are Hazaras from Afghanistan. They are targeted ruthlessly by the Taliban, who are bent on ethnic cleansing. The Hazara population of Afghanistan has halved over the past decade, as Hazaras escape or are killed. The Taliban want to get rid of all of them. We have overlooked, it seems, that we are locked in mortal combat with the Taliban; and that my enemy’s enemy is probably my friend.

For a couple more elections and a couple more fractured administrations, things kept sliding to the right. It is a striking fact that the Labor party’s stance on refugees is well to the right of John Madigan – a DLP Senator.

The Pacific Solution was begun by Howard’s Liberal government in 2001, it was abolished by Rudd’s Labor government in 2008, and it was re-started by Gillard’s Labor government in 2012. In 2013, Rudd topped it with the PNG Arrangement.

Then in 2013 we had an awful election campaign in which Rudd and Abbott competed with each other in their promises to mistreat asylum seekers. It’s tempting to think that if Pauline Hanson had been asked to help Rudd, she might have been concerned that he was too far to the right for her taste.

The Liberal won the election. Australia lost.

The Labor party lost a lot of talent when half its front bench followed Gillard out the door.

The Liberals quickly showed their true colours when we learned that senior members of the new government had been rorting their parliamentary expenses. That was no surprise: but it was interesting to see that the new Attorney-General was involved. Haughty, supercilious, self-righteous George Brandis had elbowed his way to the trough with the best of them.

After all wasn’t Brandis the one who had ferociously attacked Peter Slipper for visiting a winery and charging the taxi ride to the Commonwealth? Brandis went to a friend’s wedding and billed the Commonwealth $1600. When he was found out two years later, Brandis repaid the $1600 but said he had done nothing wrong.

Peter Slipper is still facing criminal charges for much less.

And Tony Abbott has billed the Commonwealth for every fun-run and lycra cycle-fest, not to mention his Tamworth photo opportunity which apparently cost us about ten grand. Over the last couple of years he has had his hands in our pockets for about $3 million.

Just last week, Scott Morrison issued a directive to Immigration Department staff that boat people were to be referred to as “Illegal Maritime Arrivals”. Calling boat people “illegals” is now official Coalition policy, it seems.

It is a lie.

Scott Morrison and Tony Abbott know it is a lie.

But they lie to us deliberately, in order to dehumanize asylum seekers. That way they can mistreat asylum seekers and gain political advantage from doing so.

What is striking about the “illegals” lie is that Abbott and Morrison, and others in Cabinet, claim to be devout Christians.

But with their stealing from us, and lying to us and their claim to Christian belief smells like hypocrisy.

Since very recently, people held in our detention centres are again being addressed by use of their camp number, rather than by name. There are 1700 children in detention – innocent children, jailed indefinitely. Ostensibly for our protection. It is monstrous.

So here’s the problem.

By 1998, we had stopped running from our fear of foreigners and our fear of Communism; we had come to enjoy the idea that the world saw us as part Crocodile Dundee, and part Jack Thompson; part Kath and Kim, and part Edna Everage.

It’s a strange mix, but kind of endearing. It was a good place to be.

Now, we have a hard right-wing Liberal government, led by dishonest, self-seeking hypocrites.

Now, we have a weakened, right wing Labor opposition.

Now, we believe it is good policy to mistreat people who are escaping persecution.

Now, we are a country which is seen overseas as selfish, greedy and cruel and we have no political leadership at all.

We are well into the process of redefining Australia and what it is to be Australian. Most of us have not noticed because, for most of us, life is good. But a surprising number of people have admitted to me that they are ashamed to be Australian.

The sight of the major parties competing in their promises of greater cruelty to boat people was new in Australian politics. We have never been perfect, but this was something without precedent.

It is painful to recognize that we are now a country which would brutalize one group in the hope that other people in distress will choose not to ask us for help.

What are we running from? No one can say.

It’s not hard to see what we might be running to: but why?

The new path we are on has plenty of precedents in history. We know what can happen when governments conspire to break their own laws. We know what can happen when a Society thinks it is acceptable to see one group as less human than the rest, and use that as an excuse to mistreat them. We know what can happen when governments start stealing from the people and lying to them.

We know where those paths lead.

Are we there yet? Not yet. Not quite.

It is not too late to turn back.

Julian Burnside

11 November 2018: 100 years on

The Great War ended on 11 November 1918.  It was to have been the war that ended war, but the Treaty of Versailles laid the groundwork for the Second World War.

The Great War saw the start of brutal truth in poetry: Siegfried Sassoon and Wilfred Owen wrote poems of terrible, brutal honesty.  Sassoon was born in 1886 and died in 1967, but Owen was born in 1893 and died on the western Front just one week before the Armistice.  He was 25.

A century later, it is worth remembering what Owen wrote.

Anthem for Doomed Youth
What passing-bells for these who die as cattle?
      — Only the monstrous anger of the guns.
      Only the stuttering rifles’ rapid rattle
Can patter out their hasty orisons.
No mockeries now for them; no prayers nor bells;
      Nor any voice of mourning save the choirs,—
The shrill, demented choirs of wailing shells;
      And bugles calling for them from sad shires.
What candles may be held to speed them all?
      Not in the hands of boys, but in their eyes
Shall shine the holy glimmers of goodbyes.
      The pallor of girls’ brows shall be their pall;
Their flowers the tenderness of patient minds,
And each slow dusk a drawing-down of blinds.

And even more shattering:

Dulce et Decorum Est
(a reference to the Latin phrase Dulce et decorum est pro patria mori, which means “It is sweet and proper to die for one’s country” )

Bent double, like old beggars under sacks,
Knock-kneed, coughing like hags, we cursed through sludge,
Till on the haunting flares we turned our backs,
And towards our distant rest began to trudge.
Men marched asleep. Many had lost their boots,
But limped on, blood-shod. All went lame; all blind;
Drunk with fatigue; deaf even to the hoots
Of gas-shells dropping softly behind.
Gas! GAS! Quick, boys!—An ecstasy of fumbling
Fitting the clumsy helmets just in time,
But someone still was yelling out and stumbling
And flound’ring like a man in fire or lime.—
Dim through the misty panes and thick green light,
As under a green sea, I saw him drowning.
In all my dreams before my helpless sight,
He plunges at me, guttering, choking, drowning.
If in some smothering dreams, you too could pace
Behind the wagon that we flung him in,
And watch the white eyes writhing in his face,
His hanging face, like a devil’s sick of sin;
If you could hear, at every jolt, the blood
Come gargling from the froth-corrupted lungs,
Obscene as cancer, bitter as the cud
Of vile, incurable sores on innocent tongues,—
My friend, you would not tell with such high zest
To children ardent for some desperate glory,
The old Lie: Dulce et decorum est
Pro patria mori.

 

French au pairs

How does this work?

The story so far:
-Some Tory squatter couple needs a Froggy au pair to mind their idiot sprogs while they go to the polo.
-La Bimbo gets stopped by border security because she was clearly intending to break her visa conditions.
-Minutes later she is freed to work illegally after a couple of calls by our hero the head of the AFL
-Hundreds of refugees rot on Nauru.
-Dutton tells us there’s nothing to see here: it is irrelevant that the Tory squatter couple’s family are big donors to Dutton’s political party.
-Time to throw up

https://www.theguardian.com/australia-news/2018/aug/28/peter-dutton-intervened-in-third-au-pair-visa-case-for-afl-bosss-relatives

Trolls

Not surprisingly, I get a lot of trolls sniping at me on Twitter.

I posted a suggestion recently that we should identify the trolls, without wanting to give them any publicity.  People have been writing to me with suggested trolls.  The list follows.  I will update it as time goes on.  Let’s make social media #SocialAgain

Here’s a short-list of people on Twitter who seem unable to tweet anything but false allegations or meaningless insults:

@AstralCowboyz

@bennalongtime

@BoyfromBurleigh

@bush_bushy1961

@ClubMadManus

@Colt_Of_Freedom

@form0sa

@germ_nation1

@GondwanaLands

@GreattobeAussie

@Home_Oh_Hamish

@LeroyGJacobs

@Mabels_Message

@PrimaBaci

@ResistingHate_

@scammersbeware_

@scratchmynose

SchitCunce

@TiberiusMcGreg1

@UFC_fanboy

@wingisforever

@Yeahnahtoyou