Friday, December 27, 2002

Since Tim Blair appears to be the golden child-interrupted [= baby boomer] of the Oz blogging scene, I fell that I may as well have a go at him. Normally, I’m wary of giving the intellectually marginal any third party endorsement whatsoever – good or bad – but since Blair gets a regular gig in print, and given the spectacular, arrant stupidity of his latest column in The Australian,5744,5741853%255E7583,00.html, I’ll make an exception on this occasion.

To, as Blair does, admonish a crackpot Islamic youth website with the labels “racism” and “Pauline Hansonism” is to throw sledgehammers used to crack nuts in glass houses – galore. It is overkill, but only in the specific, culturally arrogant way of declaring an adverse link between a generally discredited, but once-serious threat (Hanson) and a freshly-discovered, authorless piece of sectarian cant and hokum.

Otherwise, the comparison is simply ludicrous – more ludicrous, indeed, than the Islamic website which Blair is angling to have banned. Racism in Australia has a long pedigree, and one in which religious difference has only intermittently figured as a co-factor. Skin colour and, most importantly, perceived willingness to undercut existing (“white”) wages and conditions have always been the primary drivers and determinants. If my rough working knowledge of Islam is correct, race/colour-blindness and broad economic justice go very much with the territory. All of which makes Blair’s comparison of Islam to Hansonism not so much insulting (although plainly it is) as ultimately anaemic – pale white and whimpering.

Friday, December 20, 2002

Not too much blog action happening on the recent verdict in Richard Carleton defamation case:

Which is disappointing, but perhaps understandable, given that, two days on, the written judgement hasn’t been uploaded onto austlii (the usual legal portal for Oz cases), and that Google can’t find it, either (I only found it by going through the civic bowels of Canberra online; aka )

A quick read of the judgement confirms for me that the broadsheet reports (Age, Australian and SMH) of the case did not really do justice to the case in their respective 19/12 reports. This is in striking contrast to the previous week’s Gutnick, verdict, which received abundant analysis, including on the day after the judgement (journo’s and commentators have about a 12 hour window between the judgement hitting the web around 11 am and their evening deadlines).

Of course, Gutnick was bigger news than Richard Carleton – a higher court, strong international aspects, and, most importantly of all for news value perhaps, an element of car crash shock. While I doubt that the comparatively soft reporting on Richard Carleton was caused by his being a fellow journalist, I think that indirectly, reporters did not want to be seen as gloating on his defeat. Hence, the main angle of all reports was equivocal; a victory of sorts for both sides being had.

In other words, the case was a “tie”, if not a nonsense. Now THAT is “lazy journalism”. Legal judgements may be long, obscure and boring, but they usually (and this one definitely) leave no doubt as to who won and who lost.

Does this reflect a deeper problem: with Oz journalists not being adept at making good news (as clearly this was) into hard news? Well, someone’s got to do the job, so here goes.

The Richard Carleton defamation case did have a couple of unkind things to say about the ABC Media Watch people. In the main event, though, they were totally shielded by the “fair comment” defence. For non-lawyers out there, I don’t propose to write a treatise on this, other than to say every serious writer/blogger should be up with it, if they are not already – it is not a mater of dry law, as much as constructing and styling one’s arguments.

In brief, the “fair comment” defence separates “facts” from “opinion”. As long as the false and defamatory elements are in the “opinion” part, then the defence will operate. Of course, it’s a bit more qualified than that; but the two most important, and related subsidiary points are that the underlying “facts” must be true, and that the “facts” and “opinions” are clearly separated. The latter was found to be made out on the facts, of course.

More importantly for writers/bloggers, though, is that what I would call the Media Watch “house style” was a form of prophylaxis in this regard. By crediting their viewers with some intelligence – and in particular, inviting them to draw their own conclusions from the bare facts – Media Watch have made a virtuous circle (and legal defence) for themselves out of being opinionated.

So take note, writers/bloggers out there.

P.S. The letter to the editor in The Australian, mentioned in the previous posting) about baby boomers having finished off their CD collections, so causing the dramatic drop in CD sales in the last two years, was by Phil Turnour, of Thornbury QLD (The Australian IT section, 7 December 2002). Go Phil!

Monday, December 16, 2002

Have had a HUGE weekend at Meredith Music Festival ( – so I’ll be keeping today’s blog pretty light, as well as music related.

In one of those so-bad-they’re-funny Letters to the Editor (today’s The Australian),5746,ausletters1^^TEXT,00.html
is to be found the choice spectacle of Indignant Baby Boomer-ism.

Specifically, one Bird Jensen of Byron Bay, writes a long complaining letter in response to a lukewarm review of a Brisbane Brian Wilson (Beach Boys) concert that she was also at.

One thing about indignant baby boomers is that they’re not shy about the “flaunt it at first” factor:

“Perhaps [reviewer, Martin] Buzacott had bad seats; we were front-row centre, and speaking as a professional musician myself ….”

But it’s not all champagne in A-reserve sweet nothings for Bird to be able to clinch the argument, so she drops this heavyweight fact in Brian Wilson’s defence:

“Like the Beatles before him, Wilson withdrew from the insanity of corporate exploitation, and a life constantly on tour.”

Pardon? The Beatles withdrew from the insanity of corporate exploitation? (BTW, for any pedants out there, I don’t know and don’t even care about the Beach Boys re this bit - their bad band name was reason enough for them to break up, as far as I’m concerned).

Now, I would like to think that I know a fair bit about the said “insanity of corporate exploitation”. Chiefly, it means running sweatshops, whether they be Nike factories in Indonesia, or Australian universities staffed largely by sessionals (another music reference!). If there’s any ambiguity at all about the term, I’m sure that measuring the size of pay packets to actual hours worked will do the trick.

I’m rather puzzled, then, as to how all The Beatles got to be seriously, filthy rich. And I’m not necessarily talking mostly about Paul McCartney here – I’m happy to deem at least 90% of his billionaire-ness to “Mull of Kintyre” royalties, as surely even Bird Jensen would not put that song down to withdrawal from the insanity of corporate exploitation.

On a second baby boomer note was another letter to the editor, in The Australian of about a week ago (sorry, I’ve lost the actual reference). The rather-funny letter opined that the reason for a dramatic drop in CD sales in the last two years or so has little to do with Napster etc. Rather, it was simply because baby boomers has finished off their CD collections, with every conceivable piece of classic rock para-banalia now having been fully and utterly commodified.

So go living Aussie rock! And as for Bird Jensen, your life as revealed on Google is even tawdrier than the baby boomer gold standard for such things. Not only TWO “charity” CD singles (Princess Diana and September 11); and the fact that these seem to be your entire opus; there is this little gem; you sad schmuck:

“I had been feeling very scattered, and feeling down about my music career not taking off as quickly as I wanted it to. One day, I visited seeking some uplift, and decided to download Chris Widener's audio clip on Developing Goals. I listened to it several times over the course of a week. Over the following weekend, I sat down and wrote a new song, recorded it... and I released it as a single last week! is very helpful to me when I need a quick energy pick-me-up... works every time!”

--Bird Jensen, Byron Bay, Australia

Friday, December 13, 2002

Today I think that the law sucks, really sucks. My heart goes out to all those of the Yorta Yorta diaspora. What is WRONG with this country when even the High Court has the attitudes, and command of history, of white shoe wearing real estate agents on the Gold Coast? "Washed away by the tide of history?" – bullshit. The fact is that the land, the title deeds, the children were stolen. Developers of all ilk have an obvious vested interest in denying this; but what is less apparent is what I would term the aesthetics of denial.

Almost every settler generation in this country (of which there has only been eight or nine) has started afresh, building wise. Given the rate of house gutting and demolition taking place in "old" Melbourne these days, the dwellings of white Australia seem wilfully blind to their own impermanence.

In truth, we live in humpies, wurlies and gunyahs – whether they be faux-Tuscan, or whatever. Our "history" is the preserved facade, or other token from the demolition of the previous incarnation – and scarily enough, that's it. Our memories, our meaning, our attachment to the land. Never mind that collectively, these two-to-eight layers of demolition are a pancake-flat record of almost nothing – and absolutely nothing when compared to the living land beneath.

Wednesday, December 11, 2002

According to another lawyer-blogger:

Predictions by publishers and Internet industry spokesmen of dire "chilling" effects on worldwide Internet publishing caused by today's High Court decision in the Joe Gutnick defamation case are greatly exaggerated.

You can read the rest of Ken Parish’s article for yourself; I see things rather differently.

For a start, the case has been widely misunderstood as an attempt by evil American multinational Dow Jones/Barrons to force Joe Gutnick off his home soil and into “their” presumably one-sided playing field. While everyone agrees that American defamation law is usually less generous to plaintiffs than is Australia’s, I don’t see this at all as being the main point. The offending article about Gutnick was written by Americans, for Americans. Ergo, Gutnick is very much an American public figure (as well as, of course, an Australian one), in direct contradiction of what Ken Parish says.

Don’t just believe me on this. As should really come as no great surprise, the offending article, “Unholy Gains”, itself is available on the Internet – as I found for myself today. So check it out:

(thanks to for the link, although Google found it anyway)

I emphasise here that some of the imputations which may be found in the specifically- offending seven words in the long article “Unholy Gains”: “Gutnick has had dealings with Nachum Goldberg” are false, and that in particular, Gutnick has had no business dealings with Goldberg and has not been a customer of the convicted money-launderer.

There are many, many sides and angle to this case. One rather interesting point, which necessitates delving somewhat into the nitty-gritty of why Nachum Goldberg’s name came briefly up in a long article on Joe Gutnick, is a presciently pre-September 11 note in the Dow Jones/Barrons article, on the misuses of religious – Jewish and Islamic – charities, for money-laundering, or worse.

For the benefit of the general readership out there, however, I’ll confine my main take on the case to the High Court’s actual legal reasoning, and even more specifically, their Honours’ reliance on an 1849 English precedent, The Duke of Brunswick v Harmer. The facts, and summarized law, of this case (the raw case is unable to be sourced on the Internet, BTW) were:

The Duke was defamed in an article in the Weekly Dispatch (as small newspaper). Seventeen years after the article was published, a back copy of the article was bought from the offices of the Weekly Dispatch, by none other than the Duke’s manservant. Another copy was obtained from the British Museum. The Duke sued on these two distributions. The Weekly Dispatch argued that the cause of action was time barred, relying on the original publication date of the article. But the Court held that the delivery of a copy of the newspaper constituted a separate publication, in respect of which an action could be brought.

- key source:

Having dusted off a hardcopy of the case for myself this afternoon, I can generally vouch for the above summary of law. The case was, like Gutnick’s, an appeal, although they seemed to do appeals quite differently in the Duke of Brunswick’s day. The Chief Justice had presided over the first instance finding in the Duke’s favour, and the three puisne judges who sat on the appeal (although only one put their name to the written judgement) were clearly reluctant (to put it mildly) to overturn the Chief Justice’s awarding of a massive 500 pounds to the Duke. In fact, the Chief Justice would ordinarily have been there in person to supervise over such matters, but as the case report notes, he was ill, and therefore absent for a whole “term” of the court. As it happened, however, they went on to grant a retrial to the publisher, but only on a technicality (an unsigned affidavit).

My own, alternative summary of The Duke of Brunswick v Harmer is:

A laughably wrong verdict, coupled with a manifestly excessive award of damages, results in such a severe case of judicial timidity, that it could better be termed judicial paralysis. (But no harm ends up being done, really)

Which would make the case all of a very minor, novelty footnote today – but for the fact that the same judicial paralysis has re-emerged, in the High Court’s reasoning in the Gutnick case. Not only was ancient case of The Duke of Brunswick v Harmer explicitly followed and applied (although with Kirby J wavering), there is the same sense of sang-froid, in the face of ludicrous injustice, emanating from the Bench.

Perhaps Kirby J should not be tarred with exactly the same brush as the other Justices, on this account, but even he braked far too hard on the right with the following:

Such caution is reinforced by the consideration that recently, when invited to do so, the House of Lords rejected the global theory of defamation liability. One of the reasons of the majority was that any such change would be incompatible with the long established principle in the Duke of Brunswick's Case which, by inference, their Lordships felt to be beyond judicial repair – Berezovsky v Michaels [2000] 1 WLR 1004 at 1011-1012, 1024, 1026-1027; [2000] 2 All ER 986 at 993, 1005, 1007-1008; cf Robertson & Nicol at 103. See also Loutchansky v Times Newspapers Ltd (No 2-5) [2002] QB 783 at 814-818


The state of being “beyond judicial repair” may indeed put the ball squarely in parliament’s court (and so outside the proper reaches of judicial law-making), as Kirby J emphasises. Personally though, I don’t think that the House of Lords in Berezovsky indeed saw things quite that way:

There was a good deal of interesting discussion at the Bar about whether an internationally disseminated libel constituted a number of separate torts in each country of publication or whether it should, at least for some purposes, be viewed as a "global tort." In this country the point is settled in the former sense by the decision in Duke of Brunswick v. Harmer (1849) 14 Q.B. 185. Dean Prosser has described the rule, which may lead to a multiplicity of suits, as possibly appropriate to "small communities and limited circulations" but "potentially disastrous today": Interstate Publication (1953) 51 Michigan L.Rev. 959, 961. In the context of the present case, this discussion is entirely academic. There is no question here of a multiplicity of suits. It is the plaintiffs who are for practical purposes treating the publication as a "global tort" by calling upon the English court and only the English court to vindicate their reputations.

Thus, what the English call “academic” (or, in legalese, “obiter dicta”), more intellectually-inclined Australians term “beyond judicial repair”. You may think that less intellectually-inclined Australians would therefore simply state that The Duke of Brunswick v. Harmer is “wrong”, or even “dumb”. But no, Justice Kirby’s High Court brethren seem to have completely missed the haughty dismissal contained within the word “academic”.

“Beyond judicial repair”, indeed – The Duke of Brunswick v. Harmer is more like a stinking corpse; an actual one, not an “academic” one. It is a great shame that the High Court majority in Gutnick saw fit to dig such a corpse up, and then mooch lamely around it, like a pack of dogs only half-aware of what they had just done.

Tuesday, December 10, 2002

Homophobia is a slippery subject – like a man’s unconscious grip on the proverbial bar of soap in the showers, it manages to neutralise itself, by playing-off extreme threat (anal rape) against extreme lameness of material. In the homo-prism of the men’s showers, a threat that was never likely, itself a joke that was never funny, nonetheless somehow defuses the sexual tension. Perhaps, on the theory that bad jokes (like smelly farts) make everything go opaque, the collective grip on the soap brings on a veil of mutual modesty. A simpler explanation is that, like the soap joke, homophobia is not meant to withstand scrutiny, anyway – in its fleeting lightness of touch, it manages to out-gay even gayness itself.

Which paradox neatly explains the tenacity of the homophobe’s grip over his palmful of thin air. Writing around this topic recently, that well-known gay activist (NOT) Thomas Keneally reminded his readers of (just some of?) George Pell’s pithy admonitions for soap-holders on the brink of dropping it: ‘Homosexuality is not an “inescapable” condition, and only “a few” homosexuals have no choice about their sexuality’.*

In other words, the old soap joke, but told in reverse. Mysterious, hardened incorrigibles may be lurking in the showers, even in front of your own eyes and behind your own butt-cheeks.

If that’s how you personally imagine it, that’s fine, George – just wake the rest of us up when you think of a punch-line. Seriously, Archbishop Pell, if you really think that your Homophobia! NEW and IMPROVED! empty box is going to sell, you’re going to have to re-think the packaging. My friendly advice for you is to just stick with the old soap routine instead – hold on, hold on, hold on to it, for all it’s worth, because it's probably all you've got and are ever gonna get.

* Thomas Keneally, “Cold Sanctuary” The Age, 30 November 2002; extracted from The Best Australian Essays 2002, ed Peter Craven.

Wednesday, December 04, 2002

“Four Wheel Drives” are exhibit number one in the Great Australian Naming Malaise. If one actually drives or owns such a vehicle – although aspiring to do so is much the same thing, so I’m told – then there is no problem with ambiguity in what constitutes a “Four Wheel Drive”.

On the other hand, if one wishes to rant against Four Wheel Drives, it is compulsory to first master the taxonomy of passenger vehicles in its entirety – not all cars having four wheel drive are Four Wheel Drives, and it is even possible, I suspect, for a cars without four wheel drive to nonetheless be a Four Wheel Drive.

Because, as you may guess, I am not interested, nor probably able, to master the taxonomy of passenger vehicles, I will be taking a taxonometric shortcut from now on ('til I switch back at the end) – goodbye ambiguous Australian term, and hello the American “Sports Utility Vehicle”, aka the “SUV”.

The term “SUV” has the advantage of meaning exactly what it says. “Sports” and “Utility” are generally considered oxymorons – like “Nikes” and “work boots” – but that is precisely the point. SUV’s are definitely sporting, but not so sporting as to be without a faux-proletarian patina. Conversely, they are “work vehicles” for tax purposes (in Australia at least) – ha, ha, ha.

Drivers of SUV’s are often termed “wankers” – a description to which I emphatically concur. In fact, the terms “Sport” and “Utility” handily sum up the essence of collective masturbation, at least when practised by straight guys. Sometimes known as the “circle jerk” (a term that I dislike because of its geometric prescriptiveness), two or more straight guys wanking off together involves a neat combination of a showy competition element (tick “Sport”) with exactly the same release that comes from your common, workaday wank (tick “Utility”).

Which is precisely my issue with SUV’s – they take an activity that has traditionally been practised only or mainly in private – dumbass, reckless hooning – and then purport to make it socially acceptable by Sport-ifying it. I am quite happy for SUV’s to do whatever they do, then, singly or together, but no, no, NOT on public roads!

If you think that I am overly demonising Sport-ification, think again. What is the key difference between a group of two or more straight guys wanking off together, and the same gathering being termed an orgy? (Apart from the latter being “gay”, in an undefined way.) The difference, of course, is sport – an orgy has no competition element, and so is unquestionably a private affair. In short, an orgy is multiple masturbation – but without sport (or the pretext of it).

Which means that, short of banning SUV’s on public roads (the utopian solution), the next best thing is to take the “Sport” out of it. Take note, SUV drivers and owners – the game is up! You are wankers – individual wankers – doing it out in public. When there are two or more of you, you need to stop pretending that we can’t see your soggy, lame orgy – or worse, for you to assume that we are jealous, because we can’t join in. Ugggh! Vote "Yes" to making wanking a pure Utility - and let sportscars be sportscars.

Now endeth the rant; so let the merry songs begin. Hate those catchy song lyrics that you can’t get out of your head? If so, stop reading NOW!

“Fuckwit in a Four Wheel Drive” is a great song for singing while driving. Its libretto is, conveniently enough, basically its title, and for its score, you have the choice of “Camptown Races” or “Angel in a Centrefold”. Try it! Whether with the “doo dah” of “Camptown Races” or the bagpipes-in-your-head sound of “Angel in a Centrefold”, “Fuckwit in a Four Wheel Drive” is a memorable ditty indeed, and suitable for singing both in public and private.

Monday, December 02, 2002

How many mentors should a person have? Is there such a thing as “mentor promiscuity” – the state of having more than one mentor on the go at one time – or has the modern mentor/mentee relationship been informalised and/or casualised, like so much else today?

I raise these questions not out of arcane wallowing on a slow news day (not that there’s anything wrong with being proud of coming up with the big zero, when searching for a coined phrase on Google), but because of today’s quick stand-and-scan read at the local bookshop, of a new biography on Archbishop Dr George Pell, which gave me a sense of the déjà vu’s.

Sure enough, researching George Pell for “mentor”, sans “promiscuity”, reveals at least three people who have been, or could be called this, albeit one indirectly only.

Somewhat curiously, the clear front-runner among the three, the man who sponsored Pell for eight years of European learning and living in the sixties, and with whom Pell lived with at the end of his life – Bishop James Patrick O’Collins (1892-1983) – retired from the limelight (on 1 May 1971) just as the golden boy Pell was heading back to Australia. Was this an act of (i) abandonment (of Pell), (ii) emancipation (of a now-fledged Pell), (iii) Machiavellian cunning (by all who were in on it), or (iv) mere coincidence?

My vote is on (iii), although biographer Tess Livingstone, who ignores the twin-ness of the twin happenings at this crucial time in Pell’s life, presumably favours (iv). If it was (i), I would have long-since expected some public emotional fall-out, however minor, and if (ii), a familiar anecdote, as told by Pell, to have emerged at countless dinner table, if not Sunday sermons, with the mentor role conjuring up a character like Alec Guinness playing Obi Wan Kenobe.

Supporting my inkling, of a strange re-arrangement of power as part of the return of the Euro-suave Pell, is the lack of a bond, of any ordinary description, between Pell and his primo-mentor’s successor as Pell’s boss – Bishop Ronald Mulkearns (b. 1931, Bishop of Ballarat, 1 May 1971 to 1997). The new boss, it appears, was only a titular mentor, if even that. Certainly, Pell’s first on-the-job boss comes across as a strangely opaque and distant figure in Tess Livingstone’s book. Hence, my déjà vu’s were at least partially premature – and so I now revise the number of Pell’s known mentors to two.

The other mentor is the notorious anti-communist campaigner, B.A. Santamaria (d. 1998). As I take it that one could simply not be a conservative Catholic in the fifties, sixties and seventies, and NOT have B.A. Santamaria as a mentor-like influence, I take this one as a given.

So, back to my original point about mentor promiscuity, with two mentors definitely on the go at once in the sixties and seventies, can George Pell be termed a mentor slut? Or can a man have one (and only one) additional and simultaneous mentor “on the side”, as it were? If so, was it for reasons of propriety that Pell left Ronald Mulkearns out of the mentor-mentee loop of love, from May 1971 on? I think not.

As the winter of 1971 set in, a strange conjunction, one that would last the rest of that year, was well under way. At St Alipius primary school, “a disturbing number of the school's male personnel” (actually the entire male teaching staff of four) were paedophiles*. In tandem, in place and time, was another strange conjunction within the Ballarat diocese hierarchy – its three top men, two of whom are today alive and kicking – saw nothing, heard nothing, did nothing, vis a vis St Alipius. In such a frenzy of (outward) nothingness, it is fair to assume that much shuffling was going on behind the scenes, as the three men circled each other. What deal was done?


· Bishop Ronald Mulkearns (b. 1931), “Dr Pell's superior and close associate at the time [the early seventies]”
“Pell's man helped pedophile priests” By Fia Cumming, Sun Herald (Sydney) 2 June 2002

· Bishop James Patrick O’Collins (1892-1983) – Pell’s “mentor”, according to biographer Tess Livingstone

· B.A. Santamaria (d. 1998) has also been described as “Pell's mentor”.
Sydney Star Observer Issue 639, March 2001

* “Ballarat's good men of the cloth” By Peter Ellingsen, The Age 14 June 2002 (long article, but highly recommended) 06/13/1023864324376.html

This page is powered by Blogger. Isn't yours?