The Capture of Professional Associations

Even though the metaphor is of uncertain origin, we all recognise a gravy train when it glides past us; from within the gilded carriages, the tinkling of crystal glasses and the self-regarding chatter of superannuated Prufrocks—voices dying beneath the music of a farther room—merge; waiters with their trays of canapés and the cocktail-clasping passengers whom they serve are silhouetted against the crisp gaily-lit blinds of each compartment. We think, does this express ever stop and if it does, how can I climb aboard?

If you are a lawyer or doctor or other university-certified individual and you can profess, or at least can accommodate without obvious discomfort your colleagues professing, the unreflective Left-liberal orthodoxies of our age, then the answer to that question might be: seek a position on the board that runs your profession’s association or guild.

This essay appears in the latest Quadrant.
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Such associations instantiate the modern gravy train par excellence. The enthusiastic endorsement by a number of them of the cause of constitutional change in furtherance of the radical Aboriginal agenda provides an ideal opportunity for an examination of this phenomenon.

On June 22 the senior counsel who is chairman of the Indigenous Affairs Committee of the Australian Bar Association solemnly announced that the body he represents supports the so-called Uluru Statement about Aborigines and constitutional recognition that came out of the Referendum Council’s activities last year. I won’t paraphrase what the submission to the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, which accompanied the announcement, contains—you can read that yourself. But there is much recitation of earlier Commonwealth initiatives in giving Aborigines a “voice” (that word becomes the motif of the submission) and of the failure of those schemes (ATSIC had what are coyly summarised as “probity” issues and also problems with “gender” and “traditional” representation). However, the endorsement of the proposal for a referendum and the need for the “voice” to be “permanently enshrined” in the Constitution are unambiguous; the ABA’s obeisance to these seminal demands of twenty-first-century Aboriginal radicalism is unreserved.

The Law Council of Australia (representing solicitors instead of barristers) had given their own public genuflection to the Uluru Statement a week earlier and gave similar justifications for so doing.

I use the language and symbolism of religious observance in both cases deliberately and not incautiously; the failure in both cases to even gesture at scrutinising the various claims advanced in the statement is striking, and is inconsonant with the rational frame of mind we properly assume to be essential to legal and especially constitutional analysis.

The claim by these spokesmen that they are credentialled to opine on such a matter on behalf of tens of thousands of Australian legal practitioners relies on a doubly-attenuated notion of representativeness. The ABA and the LCA are organisations with boards constituted by the delegates appointed by the boards of other organisations—state bar associations and law societies; the directors on the ABA’s board for example are elected or appointed by the boards of the state bar associations. Positions on those boards and committees are invariably secured by elections in which very few solicitors and barristers participate. They are too busy representing their clients and running their practices.

When I started in the law in the early 1980s the received understanding was that the people who volunteered for these associations were supporting you against the state and its regulators and with disgruntled clients; they were the guild-masters in modern dress. They also invigilated the maintenance of propriety and ethical behaviour by and between the members of the profession, something about which they were much more exacting than their salaried successors.

In those days, the notion that such an association should appropriate the authority to speak on behalf of a group of people as independently minded and politically disparate as barristers about such sub-Marcusian preoccupations as “First Nations sovereignty” would have been identified by the members of the profession for what it is—the manifestation of a progressive-totalitarian Weltanschauung—and would therefore have been stoutly resisted. The changed cultural and political conditions that have permitted such conduct by all kinds of professional and quasi-professional associations to become commonplace—in teachers’ unions, the Australian Medical Association, sporting leagues, industry associations—can be identified quite easily, I reckon, provided we can train ourselves to think and speak in the cant-averse ways that came more naturally to that earlier generation.

Lawyers Weekly reported the endorsement of the Uluru Statement in this way:

ABA president Noel Hutley SC said that, as the body representing all the independent Bars of Australia, a “unified and unanimous voice from the Australian Bar” is powerful on matters of national significance such as this. “Contributing to policy responses on issues of justice for all, especially our most vulnerable, and having the opportunity to influence lawmakers as they work to shape laws for the common good, is a precious and privileged role,” he said.

I am about to tell you plainly what this individual barrister (I left the ABA in 2016) thinks of the Uluru Statement. While they are certainly not speaking for me, neither are they speaking for many other barristers who are still members of the ABA, just as, last year, the New South Wales Bar Association and Law Society were not speaking for many of their members when they publicly announced support for the changes to the Marriage Act that allowed homosexuals to marry each other.

I have never met Mr Hutley nor the chairman of his organisation’s Indigenous Affairs Committee (I didn’t even know it had one) and assume they hold their personal views sincerely, but why do they purport to speak on behalf of all of their members when they well know that many members do not share their views? Where in the Objects of the ABA constitution do they find their authority to publicly endorse a contentious political announcement? One of those Objects is to promote the rule of law, certainly, but reliance on that as a warrant for these expressions of political support would be disingenuous, surely; whether constitutional amendment for the purposes of privileging one racial group within the nation undermines or promotes the rule of law is one of the many serious matters in dispute here.

Why can members of the ABA board not be content with speaking for themselves? More generally, what explains this growing propensity of professional associations to arrogate to themselves an authority to declaim on behalf of tens of thousands of individual members about such matters? The “unified and unanimous voice” that Mr Hutley speaks for is that only of the delegates of the state associations, in any event, is it not? I can understand why those who agitate for a referendum would be pleased that the ABA and the LCA purport to speak on behalf of the massed ranks of the profession, but the reality is they do not.

Let us remind ourselves what the Uluru State­ment says:

Uluru Statement from the Heart

We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from “time immemorial”, and according to science more than 60,000 years ago. 

This sovereignty is a spiritual notion: the ancestral tie between the land, or “mother nature”, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

I should tell you plainly what this individual barrister and legal practitioner thinks of the Uluru Statement. Whomever the ABA and LCA thought they were speaking for, I want you to know it wasn’t me.

I strongly oppose nearly all of the propositions put in that document and would do all I could to prevent their implementation. I will tell you the most important reasons why.

1. Tribes are not nations; indeed, the two words denote antithetical concepts.

2. “First Nations” is an agitprop expression that does not belong in a document ostensibly promoting sensible constitutional discourse. It seems to have been floating around for a decade or so in the parlance of the radical Aboriginal types that flourish in ABC news soundbites, but it actually has a longer leftist pedigree than that. As far as I can ascertain, its provenance is the world of late twentieth-century Canadian (especially Inuit) identity politics, though it would not be surprising to find it or its cognates in Comintern propaganda in the 1930s. “First Peoples” is sometimes used interchangeably (it is the ABA’s preferred nom de guerre of the cause).

Aboriginal inhabitants of this continent were manifestly never part of a nation, as that word is understood in our language. After 230 years of settlement we still have no catalogue of these putative Aboriginal nations; no map delineating their boundaries; no specification of the criteria as to how one would qualify for “citizenship” in any such nation; and certainly no “constitution” for one. It seems clear to me that an Aboriginal “nation” would not be a strictly geographical entity, and that this must entail nationhood being interpreted in a racial sub-group sense instead.

Does the Bar Association think racial profile as a determinant of nationality is enhancing the rule of law in Australia, then? Has it even thought matters through to this point? Does it think this problem can be dealt with, as its written submission suggests is possible, by calling races “peoples” instead?

“Nations” betokens sovereignty. For me, that is what explains the ubiquity of the term in Referendum Council discussions. It is a word adopted for strategic political purposes, then, because it posits a fiction—Aboriginal nationhood—that can be used to ground the pursuit of the real political goal here—the constitutional disfigurement of the Australian nation.

3. Sovereignty is a legal notion. It is in no sense a “spiritual notion”, even if we were to accept that the diverse totemic and animist traditions and stories and rites of Aborigines are spiritual in the numinous sense in which that word is used in describing religious belief and experience in Occidental and Oriental traditions. Discussions about sovereignty are discussions about identifying the source of authority within a polity for the legitimate exercise of power; positing amorphous atavistic links with the soil as a foundation for sovereignty contributes very little to the discussion; indeed it has the effect of closing such a discussion down, which was the very reason it was the first resort of so many authoritarian apologists of various extreme political persuasions in the twentieth century.

I am very familiar with the claim that Aborigines have a unique affiliation with the land we Australians all inhabit. How could I have missed its incessant promotion by the artistic and educational cadres who have controlled our schools and our national broadcaster for a generation or two now? It is a claim I am sceptical about. But note, please, that I am sceptical rather than rejecting of it. It is simply that, for me, sadly, the contamination of the knowledge and understanding we non-Aborigines have of the tjurrunga by decades of bogus anthropology and Coombsian hucksterism has left its mark, as I am sure it has on many of my contemporaries.

4. The linkage of Aboriginal crime and high incarceration rates in the document to the absence of the attainment of a particular politically calibrated level of constitutional formality is perverse. The information now available to us all about the levels of violence and sexual assault against children and foetal alcohol abuse and lawlessness in many remote Aboriginal settlements (those closest to the land, incidentally) suggests rather powerfully the salience of other factors. It is, moreover, a pernicious linkage. It distracts Aborigines themselves from confronting the actual causes of the levels of lawlessness inside and outside these gated communities. Please note, I do not believe that innate criminality is such a cause; the presence of that particular straw man in the document is itself unintentionally revelatory of the Alinskian elements in the whole referendum enterprise.

5. The Referendum Council which initiated the cross-country “dialogues” which culminated in the Uluru convention and this document is the kind of patronising assemblage of big-business and mass-media personages to which Western governments now seem to reflexively resort when they want to push a policy they know will meet fierce resistance from the populace, and I refuse to be coerced by them. I was surprised Cate Blanchett didn’t get another such gig on this one. Many of the people on the Council and those like it seem as if they were drawn from the membership of another club, one that refuses to be identified, one where regularly appearing on the ABC is ceremonially analogous to the wearing of an apron in a different privy society. Up with being manipulated by such people, I will not put!

6. The authors of the statement make a grave error in inserting the “in 1967 we were counted” reference as part of the document’s climax. That simply draws more attention to their bad faith. In making this reference, they rely on the persistence of a widespread misunderstanding about what was both addressed and achieved by the 1967 referendum. The referendum had two aspects. The change to s.51(xxvi) of the Constitution had nothing to do with “counting” at all but was all about giving the Commonwealth the power to make special laws for Aborigines (laws which ironically have enabled the promotion of native grievance to acquire its present-day industrial dimensions); and s.127 only ever dealt with “counting”, as Keith Windschuttle (in The Break-up of Australia, pages 212–13), drawing upon Geoffrey Sawer, demonstrates, in the very esoteric sense of determining the number of federal electorates within each state which s.24 of the Constitution required be fixed by reference to the state’s population. Its repeal made no difference at all to Aboriginal enfranchisement, which had long existed; by 1967 Aborigines were “counted” in all the ways that signify in a democratic and humane polity such as Australia, and the authors of the statement well know that. The resort to such rhetorical sleight-of-hand in its concluding passages tells us all we need to know about the shoddy nature of a document which pretends to be taking the high-road in national political discourse.

If you are a legal practitioner and like me you disagree with the ABA and LCA statements (even if only in part) you should do as I am doing and speak up, else you will be allowing someone whom you probably do not even know to usurp your personal entitlement to speak the truth. Why would you permit that to happen? Truth-telling, as Jordan Peterson reminds us, is the manifestation of our civilisation’s precious inheritance of the logos.

If you are a doctor and you share my views then I am afraid you have also recently been obliged to do as I am doing. On June 8, the Australian Medical Association also earnestly endorsed the Uluru Statement. AMA President Tony Bartone’s press release noted that it had been regarded by some as “the most important piece of political writing in Australia in the past two decades”, and said the AMA had for many years supported “Indigenous recognition in the Australian Constitution”.

If you are an accountant or an engineer or an AFL footballer or a pilot you should check what your society, association or federation has had to say on your behalf about Aboriginal constitutional recognition. You may find that they have publicly promoted ideas that you radically disagree with, and, what is worse, when doing so have told the world they are speaking on your behalf. But even before you check, you know, do you not, that the position will be either that your organisation will have said nothing about the topic—taken the view, surely correctly, that proselytising about such matters has nothing to do with their association’s raison d’être—or it will have enthusiastically supported the Uluru Statement. In other words, a decision to speak publicly at all on behalf of members will have entailed the promotion of only the one politically correct leftist view of the controversy. And so it will be with respect to any other issue. What accounts for this?

The answer lies at least partly in the gravy train element of all of these associations. Generally, the holding of office in a modern professional association especially at the national level (I single no particular profession out) offers more perquisites and gratifications than the mere exercise of the vocation itself possibly could: regular interstate and overseas (business-class) travel; a public profile and the simulacrum of exercising influence over the course of public policy or events, without the accountability that real responsibility that the decisions to implement such policies involves; authorised time away from the spouse and children and, its corollary, increased opportunity for philandering; the implicit suggestion that simply occupying such a position signifies proficiency or stature in the practice of the profession itself, which is often advantageous in attaining promotion from practitioner status to an administrator (or judge); attendance at conferences, soirees, lunches and all manner of catered-for colloquiums, both private and governmental; the frisson of occasional adjacency to power; a respite from the rigours and pressures of conducting an actual practice; and, not least for many, the chance to settle scores with, or to disadvantage, old rivals in the profession.

So it has its attractions. These are amplified and underwritten by the nature of their liaison with government, a liaison that blazons into a full-blown scandale every time they are recruited for major operations such as same-sex-marriage campaigns and the proposed constitutional referendum.

In former times, the decision to involve yourself in the work of a professional guild was motivated more often than not by a sense of duty (and it still is for some) but that has waned. The specific benefits that ensue from interaction with government in all of its modern manifestations, it seems to me, are much more conspicuous now. With so much of the work of political parties in power being done extra-legislatively, by readying or manipulating the populace to accept certain measures, a facility for co-opting the professions into the service of government is vital; professional organisations fulfil that role very satisfactorily. Government patronage of them can assume many forms, some near unrecognisable as patronage. Disciplinary boards in all of the health professions; regulatory bodies of industry; accreditation processes and educative boards in trades and vocations—all require a bureaucracy and the vast amounts of money necessary to sustain them and it is upon persons in the professions that a significant amount of that money is lavished and to whom the bureaucracy looks to constitute them. The movement towards national standards and national regulation for and of the professions has accelerated that process. These processes naturally entail close association with universities and other tertiary institutions, too. One might suppose our law societies, for example, are still notionally independent institutions, and certainly volunteer members still do much adjunct educative work, but they are so laden with a complex of obligations under the various statutes which regulate the legal profession, and the levels of their interface with government and universities are so extensive, as to have altered their whole character and purpose.

Why leftism in the postmodern form of visceral antipathy to Western institutions and laws and our cultural heritage is regnant in the bureaucracies and the universities is not a question this short composition purports to answer, but the fact of its triumph I take to be self-evident. Given the symbiotic relations our guilds have established with both, it might be said that there was an inevitability about the perversion of their reasons-for-being that the enlistment in the Aboriginal referendum campaign demonstrates (no doubt the AMA and ABA and their ilk will be calling it a “struggle” shortly, if they have not already). But if we act with honour, and I know the legal profession at all of its levels to be rich in honourable people, we will not be dissuaded from calling out our professional association’s infidelity to its roots.