Uncommon Sense

I don’t know about you, but when I read Michael Sexton’s articles in our journals, I am struck by a strange feeling that not all the world has gone nuts and there just might be a glimmer of hope. What? There are people who think our laws should be made by our elected representatives and not by judges? That maximising profit might be the main duty of corporate boards and not “diversity”? That it shouldn’t be illegal for churches to preach what they practise? That a Swiss court just might not be the right place to resolve a problem in a Melbourne football team? No, that can’t be right.

Michael Sexton is one of Australia’s leading lawyers. After a brilliant undergraduate degree, he was appointed associate of the High Court Judge Sir Edward McTiernan. He completed his legal studies at the University of Virginia, worked in the Attorney-General’s Department during the Whitlam government, taught law at the University of New South Wales and practised law as a barrister specialising in media law. He has authored or co-authored many books including, with Terry Tobin QC, the standard text on defamation in Australia.

This review appears in the May edition of Quadrant.
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Since 1998 he has been New South Wales Solicitor-General. In private life, Sexton has always been a loyal supporter of and participant in the Labor Party. Unlike many committed people on both sides of politics, he has remained an independent, clear and incisive thinker. Over the past forty years he has been a contributor of articles on matters of public interest in many journals including the Australian Financial Review, the Australian and the Spectator. This volume, Dissenting Opinions, has collected them for the first time. Several themes run through the book.

There are some interesting lawyer’s perspectives that Sexton brings to the question of free speech. I don’t think you can quote American jurist Oliver Wendell Holmes’s dicta about free speech too often; Sexton certainly doesn’t shrink from quoting him. “We should be eternally vigilant against attempts to check the expression of opinions that we loathe.” Holmes’s unrelenting advocacy of free speech, even in cases such as espionage and sedition where much legal tradition up to his time would have suppressed it, meant that his were often dissenting opinions. That is reflected in the title of this book. Holmes is also quoted from the Left, but increasingly the only quote we hear from that direction is his saying that there was no free-speech right to cry out “Fire!” in a crowded theatre.

I thought one of his more interesting observations, as a barrister formerly specialising in defamation law, was that the people who most supported laws like Section 18C, laws against causing public offence against a range of people and classes, were often the most offensive in the language of their advocacy:

The truth is that most of the vitriolic abuse occurring in public debate in Australia comes from the politically correct class and reflects their almost disbelieving response to an alternative point of view. In the course of their constant and confected concerns about hate speech they have themselves determined to make any opponents the subject of the libel law’s hatred, ridicule and contempt.

This was written in 2016 when the responding vitriol from the Right was muffled. Sadly, I think that five years later this might not any longer be true. Sexton observes that it has always been against the law in all Western countries to incite violence. Nazi Germany in the 1930s legitimised incitement to violence against Jews. Are we entering a period of sharp civil division like that in Germany in the 1920s which led to the rise of Nazism? Of course we hope not but the shrillness of debate on both sides now is beginning to be reminiscent. The seeming acceptance at the highest levels in America of political violence on the Left worries me particularly. “They’re not gonna let up and they should not and we should not,” says Kamala Harris of the violent BLM protests. Wait and see what happens when the protests are against her.

And then we come to the general question of political correctness, a term, let me remind you, which was coined by Lenin—“He may have factual problems but he is politically correct.” Sexton trawls through the absurdities which we now live with every day: the Archbishop of Hobart being dragged through the courts for having a view on a public vote on same-sex marriage, a footballer being banned from his sport for quoting the Bible. Sexton canvasses the question of whether the politically correct religion will make it impossible for contrary cases to even be put in referenda on social issues without fear of prosecution. Things are already tough in parliament. Two senators proposing amendments to Section 18C were described by the Sydney Morning Herald as “hate-speech apologists” and one further described as a “boorish, supercilious know-all with the empathy of a Besser block”. As for Israel Folau, more football later in a different context.

I enjoyed Sexton’s voyage through Australian politics. I felt he missed an important point in his discussion of balanced budgets. As he says, Menzies campaigned through the 1950s against Labor’s budgetary proposals with the phrase, “Where’s the money coming from?” Since then, he says, Liberals, despite saying they are for smaller government, have never delivered it and with the (important) exception of Howard, have failed to balance budgets. Now, as he says, elections have become contests to see who can offer the bigger magic pudding. There is an important difference between the monetary situation applying in Menzies’s day and now. Menzies operated under the Bretton Woods monetary system when there was a theoretical gold standard. Money wasn’t unlimited. That finished in 1973 when Nixon abolished the Bretton Woods arrangements and the whims of the US Fed became the standard. Since then, any debt a government incurs will be inflated away. Why would any government do other than overspend when there’s no monetary discipline to stop this? Now we seem to accept “Modern Monetary Theory”, which says if you need more money just print it. Last year the RBA printed 100 billion dollars. For the future, see Germany and Austria 1922.

Sexton is a Labor man but he is also, in common with many other Labor men, conscious of the shortcomings of the Whitlam government. You may disagree with some aspects of his treatment of Kerr’s dismissal of Whitlam. However, I feel he does us all a service by reminding us that, by withholding supply, Fraser, not Whitlam, was the author of the crisis which led to Whitlam’s downfall. Some of the events which preceded the supply crisis were equally questionable, whatever you thought of Whitlam. Bjelke-Petersen was within his strict rights in appointing Albert Field on the death of a Labor senator and changing the balance of power in the Senate, but this went against all convention. Whether Kerr had other options available to him, including doing nothing, is a separate question.

And finally, as a life-long Essendon barracker, let me indulge myself by telling you how deeply I enjoyed Sexton’s articles on the Essendon drugs farce of 2013, three of which are reprinted in this volume. It’s all here: the solemn appearance of federal ministers on television announcing “the blackest day in Australian sport”, the dark hints of international criminal involvement, the court cases culminating in the final absurdity of the appeal to a Swiss court—a Swiss court to settle a matter in a Melbourne football team! Don’t you have visions of Gilbert and Sullivan pouncing on this for an operetta? Their Swiss Honours had the decency to deny all knowledge or experience of this strange game and call for the ablutions cruet. But one felt that there were deeper questions involved here. This wasn’t the first time the AFL had appeared in this volume. Former AFL CEO Andrew Demetriou’s views on free speech are quoted extensively—clearly inspired by Oliver Wendell Holmes but more of the “don’t cry fire in a theatre” variety. Then we have the sad saga of Folau, and the various “taking the knee” commands. Doesn’t anybody just play footy any more? I suspect the underlying reason for all this is that all the television rights money flowing in has left sporting bodies with the conundrum of what to do with it. The answer has been to hire more and more people and suddenly the new bureaucracy decrees that what was previously peripheral has now become central. I think the same applies to businesses outside sport. A while ago a commentator said that one reason for Yahoo’s poor performance was that they didn’t have a “Chief Diversity Officer”.

So I commend this book. If you want a clear critique of cant, Left-babble and intellectual pied-piperism, this is the book for you.

Dissenting Opinions
by Michael Sexton
Connor Court, 2020, 315 pages, $39.95

Ted Rule is a former diplomat who now lives on the Central Coast of New South Wales