The ANZAC day lie
A group of women in New Zealand, all in their 70s, dutifully get up early every morning in April. They have a cup of tea and bowl of cornflakes, feed the magpies in the backyard, and head out to the main street of their town.
They walk in small groups of two or three from business to business in their neatly pressed pants, politely speaking to shopkeepers and business owners about supporting their cause. They’re raising money for scholarships, to help young people attend university.
But these aren’t ordinary women. They’re refused and shouted at. Even the kindly old man at the butcher’s shop, who’s known them all their lives, won’t help them. Because they’re radicals. They’re threatening the system. They’re selling pretty little white poppies made out of fabric and green wire on ANZAC Day. Why?
For peace.
Take a three-hour flight across the Tasman Sea to Australia and we have the same problem. Any attempt to shift ANZAC Day to anything other than its carefully crafted script and dominant paradigm is seen as a threat.
Criticism of the manner of commemoration is deemed by some to be disrespectful, sacrilegious or, dare I say it, un-Australian. Those offended, however, often don’t see the criticism as separate to the individuals involved. They pair the two together despite their fundamental differences.
On this, Australian historian Mark McKenna is quoted as saying:
ANZAC has now become a dangerous tradition in which critical debate and political controversy are whitewashed. ANZAC engulfs dissent and division, burying any hint of disloyalty and deviance beneath the compulsion to be patriotic and stand by our troops.
Criticism of the manner of commemoration is deemed by some to be disrespectful, sacrilegious or, dare I say it, un-Australian.
What’s wrong with ANZAC?
“What’s wrong with ANZAC?” Marilyn Lake, the Australian historian, asks. “The militarisation of Australian history”.
The ANZAC myth is a calculated and deliberate distortion of Australian history to shape our collective historical memory, inform our schemas, and influence the way we look at the world.
The battle of Gallipoli is a tiny event in Australia’s history and in the war effort of WWI. Yet it’s promoted to be one of the most, if not the most, important day of the Australian calendar. It’s characterised as the birth of the Australian identity – as if to say that nothing at all happened in Australia until the ANZACs ran up that narrow beach to be pelted by bullets from Turkish soldiers who lined the sheer cliffs at Gallipoli.
Everything before 1915 is out. That’s Federation, the Eureka Stockade, a big chunk of the suffrage movement, and about 40,000 years of indigenous history. Lake says:
These commemorations have been taken over by delusions of national significance – that our values and national identity was born and shaped on ANZAC Day at Gallipoli – when in fact it is our civil and political history that has shaped our national democratic values.
Twenty years ago, most people expected ANZAC Day to disappear as the last diggers died, like other days of memorial. It probably would have – had it not been for former prime minister, John Howard. Howard, then newly elected, had always been interested in history and wanted to get away from the history wars that had dominated the 80s and early 90s.
To do this, he decided to open up a new front overseas. While he was not the first to start the process of the reinvention of ANZAC Day, he took on the issue as his own project, becoming its vanguard.
He undertook a deliberate process of re-education, led by the newly formed Department of Veterans Affairs (DVA), which was created in 1996, replacing the Repatriation Commission formed in 1917. The DVA had a much broader mandate than the Repatriation Commission, which had only commemorated people individually for giving their lives.
Since 1996, the DVA has worked on several key strategies:
- The identification of new national days of remembrance which mostly end up being new battles
- The refurbishment of war memorials and the building of new ones including war memorials for minority groups, long forgotten wars like the Boer War and the war effort of dogs and horses;
- Education about significant events and education in schools. Curriculum materials, prizes, videos and textbooks have been developed for this purpose.
- And community awareness campaigns that often focus on the collection of oral histories and medals for exhibition.
Peter Fitzsimons admits there was great renewed interest in ANZAC Day in the late 1990s. He is not convinced, however, that it was because of Howard and believes it is the quality of the story that has drawn people in.
Wearing his iconic red Che Guevara bandana standing in front of the crowd at the Opera House, FitzSimons solemnly declared that he is “Not a historian, … I speak from the heart and not from the head”. He spoke passionately about his connection to ANZAC:
On the ANZAC tradition, I was raised on it. My father was a soldier and my mother was an army physiotherapist.
He still makes it clear that although he came from a defence family, he was against the Iraq war and marched in the streets with the hundreds of thousands of other Australians.
Despite his opposition to the war, he is still determined to honour those who fell in Iraq through the vehicle of ANZAC – which he says has grown to encompass all veterans of all wars. After watching FitzSimons, it became clearer that he was using these individuals as a reason to justify the whole day. He did not separate them from the manner and system of commemoration which, arguably, provides a context for Howard more conducive to the politics surrounding the Iraq war.
The odd and distorted romanticism surrounding ANZAC Day and its attribution to the Australian identity may be because we don’t have an independence day. As Australia Day is becoming confused and recognised more and more as the day of British invasion, we go back to ANZAC Day. Even though it was the invasion of another sovereign territory, it escapes negative connotations.
For a day of military commemoration to be one of our most important national days, reveals the elevation of masculinity and militarism in Australian values and identity. All other groups – women, racial or religious minorities, Indigenous Australians – are excluded.
Attempts to include them in the day and the broader concept through the inclusion of other wars and conflicts are often redundant because of the ANZAC-centric focus, and constant remembrance of the mandated legend means Australians who meet the characteristics of the original ANZACs can be perceived as more Australian than others.
The Dardanelles campaign from the perspective of Keith Murdoch, Rupert Murdoch’s father and a war correspondent during WWI, was scathing. He wrote a damning letter to then Prime Minister Andrew Fisher while he visited the Gallipoli Peninsula, arguing that Australia was being used as a pawn, wasted and manipulated in the war efforts at the behest of the Allies. This dangerously contradicted the authorised propaganda coming out of the government.
Murdoch argued passionately that the ANZACs at Gallipoli had been victim to the poor strategic planning of the allied military leaders. This perspective received little genuine attention by the government of the day and has found itself lost beneath the concept of ANZAC. So too has the fact that ANZAC Day marks the date of the invasion of a sovereign territory, the Ottoman Empire.
FitzSimons, a passionate and engaged advocate of ANZAC and anti-Iraq War activist, remembers how shocked he was to learn this fact from a radio broadcast in 1999 while driving in his car.
The exclusion of these particular perspectives from our national ANZAC narrative is interesting when considering Australia’s role in more modern wars and our unrepresentative sense of importance in these foreign theatres. More importantly, it gives insight into our self-made narratives concerning the decisions to be involved in wars which disguise the power relationships between us and the US.
In a way, this reveals what is still deep in the psychology of Australians – the mindset of a colony. This relationship of empire and colony has shifted from the UK to US, particularly in wars since Vietnam up until now.
ANZAC reinforces our self-image as a greater power’s ally and aggrandises our need to unquestionably respond to their instructions and demands. Like in Gallipoli, we hope they will protect our national security, rather than looking inward and developing our own regionally based relationships and strategies.
Instead of recognising our role in conflict, which is often being the pawns of powerful empires, we ignore it and transform our participation into something much more palatable. Our national security policies over the years reflect this deep cultural understanding of our place in the world.
Hugh White from the Australian National University argued in The Monthly that, as we’ve continuously flitted between attempting to be self-sufficient and relying on the support of a great empire, we’ve ended up doing neither well. A colonial mindset means that while we’ve toyed with the idea of self-sufficiency, we can always be relied upon to look back up to the wisdom and strength of that great power.
The relentless commemoration, creation, and control of our collective historical memory has served to create a social backdrop where it’s easier to politically justify the wars our powerful friend wants to wage. Lake believes that the relentless and calculated commemoration of ANZAC has served to “naturalise and create a conducive environment for war”.
Although there are no parades of tanks down George Street on ANZAC Day or overt military breast-beating, the constant remembrance of war, alongside the controlled, unbalanced, and unrepresentative focus on our military history reinforces violence and military solutions as key options to resolve international conflict. We see the military as a feasible and successful mode of conflict resolution, but don’t look at the real cost of war.
Academic Tony Smith argues that:
[Our] reluctance to criticise the military has its origins in the notion that troops are risking their lives for us. A more realistic and non-militaristic view would acknowledge that while troops might well die for Australia, their primary role is to kill for Australia.
We are mindful that when we send Australian troops on overseas postings they could die for us but seem to ignore the reality that in order to do their jobs they must threaten to kill on our behalf, and sometimes do so.
This is the reality of war and its cost.
Criticising ANZAC is a serious thing. It isn’t just a criticism of the day and the commemoration. It’s a criticism about the exclusivity of the legend and what has been accepted to be Australia’s identity and birth as a nation. It’s a criticism of the folly of war and Australia’s role as a pawn in international conflict, a criticism of Australian defence policy, and a criticism of our relationship with the US.
Dissent from the mandated narrative is serious because it threatens power structures that stretch between the smallest of communities to the grandest of political theatres where geopolitical relations play out. These structures work to reinforce war and not peace, promote a white Australian identity rather than a multicultural one and fortify our inability to act in our best interests in foreign policy decisions.
This is what is wrong with ANZAC.
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BY Belinda Lowe
Belinda Lowe currently works as a Field Organiser in the union movement. She has presented a dissertation at the Global Rethinking International Criminal Justice Research Initiative and has volunteered with a number of organisations including the Cancer Council, Amnesty International and the Women’s International League for Peace and Freedom. Lowe holds a BA in Communications and a Masters in Peace and Conflict Studies.
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Power without restraint: juvenile justice in the Northern Territory
The institutional abuse of children detained by the government of the Northern Territory is a bone-chilling example of what occurs when raw power is exercised without ethical restraint.
The scenes broadcast by the ABC’s Four Corners program in July 2016 were the stuff of nightmares – the kind of thing done by ‘other people’, in ‘other countries’, in ‘other circumstances’. But this nightmare became real, for us – here and now. The prime minister announced a Royal Commission to investigate what had happened and why.
But first, we need to look at the general conditions that made the unthinkable possible. Those conditions do not just apply in the context of juvenile ‘justice’ in the Northern Territory. Australian governments are responsible for the detention of people throughout our states and territories as well as on Manus Island and Nauru. In every case, there is a risk (and often a reality) of people with power exercising it in a manner that fails the test of the most basic standards of decency.
Every person who is detained deserves to be treated with a basic measure of respect – even those who committed the foulest crimes still retain their intrinsic dignity as a ‘person’.
Second, we need to reckon with arguments that the ‘ends justify the means’ and the prisoner or detainee is the author of their own fate – that they ‘deserve what they get’.
Normally, you would expect parliaments in a liberal democracy to place strict curbs on the exercise of power by government officials. But in recent years, the tendency has been to take the opposite path – to smooth the way for excess.
This has been done by creating numerous exceptions to the application of usual legal and ethical restraints that have been designed, over millennia, to tame power – such as judicial oversight, civil and criminal liability, media scrutiny and respect for individual rights like habeas corpus.
Australia has wide exemptions – for members of the intelligence services, for those detaining suspected terrorists, for detention centres and, as evidenced in the Four Corners report, for those guarding juvenile detainees in the Northern Territory.
Section 215 of the Northern Territory’s Youth Justice Act confers a wide-ranging immunity on virtually all people working with juvenile detainees. Specifically it says:
“The person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.”
It is yet to be determined whether or not the behaviour revealed by Four Corners was done ‘in good faith’. If so, then the people responsible can never be held to account. The parliament of the Northern Territory has, for all intents and purposes, written a blank cheque.
Cultural failure is the responsibility of those in positions of authority. It cannot be addressed by lopping off the heads of a few ‘rotten apples’ buried in the depths of the barrel.
These provisions were likely enacted as part of a law-and-order campaign. It probably never occurred to legislators that children might be tear-gassed, bound to chairs (and all the rest) by their guards. I’ve no doubt they are now appalled at what has been done. But their lack of forethought does not lessen their responsibility for what they have made possible. It only deepens it.
Governments bear the ultimate responsibility for the treatment of those they detain. Such responsibilities cannot be outsourced. Every person who is detained deserves to be treated with a basic measure of respect – even those who committed the foulest crimes still retain their intrinsic dignity as a person. If we do not deny this for the worst of humanity, how can it be absent for children? They may be angry. They may be rebellious. They may be violent. Even so, they are children. Our children.
It is almost certainly the case that those responsible for abuse are not monsters. They will be just like most of us – most likely unable to conceive of treating their own children as they have those in detention. It’s an age-old puzzle. How can basically good people end up doing such terrible deeds?
It will be revealing to see if we take a wider look at what made this national disgrace possible and ask where else the same seeds have been planted.
There are a number of factors that were likely at work here:
- The guards could have been conditioned to look at their task through a purely legal lens – ‘if it’s not illegal it’s not wrong’.
- An element of tribalism – people conforming to the norms of a tight (usually isolated) group that overwhelms the dictates of individual conscience.
- A belief they were serving a ‘higher good’ (law and order) and their child victims deserved harsh treatment.
- A belief that the methods employed were ‘best practice’ sanctioned by a ‘respected authority’.
- A sense the children were not deserving of basic respect because they were ‘not like us’ – most likely linked to their Aboriginality.
- And most importantly, people within the group may have questioned what was being done while lacking the moral courage to speak out for fear (usually well-founded) of retribution.
Cultural failure is the responsibility of those in positions of authority. It cannot be addressed by lopping off the heads of a few ‘rotten apples’ buried in the depths of the barrel. Instead, we need to look at the ‘rotten barrel’ – and who made and maintained it.
How we respond to this issue will tell us a lot about Australia and its people. In particular, it will be revealing to see if we take a wider look at what made this national disgrace possible and ask where else the same seeds have been planted.
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
The value of principle over prescription
As a child, I visited the ski fields of New South Wales but once. So, you would think that my most enduring memory of that vacation would be of snow. But it is not. Rather, I remember a lamb chop—or, more particularly, the circumstances giving rise to a BBQ in a bushland clearing somewhere out of Cooma.
The chop had been purchased from a local butcher who sold his fare from an old-fashioned shop. The butcher operated from within an area enclosed by fly screen and served his customers through a sliding hatch. Inside, activity centred on a large wooden block set on a floor strewn with sawdust producing the earthy scent of freshly sawn timber. Having purchased our chops, we drove on into the country where we found a picnic spot somewhere off the road. In a family ritual, we older children were sent off to gather twigs for kindling and sticks for a fire used to cook our chops on a grill set on rocks surrounding the small fire. Having eaten, we made safe the fire and returned the area to how we had found it before ascending to the snow line.
Sadly, the experiences I describe have been almost regulated out of existence. Butchers can no longer dress their floors with sawdust. Travellers may no longer set small fires to cook their lunch in bushland settings but must find a ‘permanently constructed fireplace at a site surrounded by ground that is cleared of all combustible materials for a distance of at least two metres all around’. The rules preventing such things have been introduced for perfectly good reasons: to promote safe eating and to prevent bushfires. But was it really necessary to impose such uniform rules (e.g. hard surfaces for all butchers)? Or might we have done better to specify some general principles (e.g. around health and safety) and leave butchers and travellers to make responsible decisions about how best to meet their obligations?
There was a time when Australians were more willing to accept risk in return for a larger measure of freedom.
I should clarify two likely points of contention. First, I am not opposed to rules and regulations per se. Comprehensive and consistent regulation makes good sense in some areas of life (aviation standards come to mind). Second, I am not merely pining for a lost golden age of my youth. Life (and society) moves on. Rather, my concern is a deeper one—that Australia and Australians are becoming an overly compliant people and that our archetypal self (the knockabout and resourceful larrikin questioning of authority) now exists only in our rhetoric.
I recently discussed this issue with former Liberal minister, Amanda Vanstone. For the sake of lively conversation, she proposed a radical pruning of the regulatory thicket with all regulation being suspended unless proven to be both necessary and effective. Most proposals for reform are cautious and incremental, aiming only to remove the dead wood. The Vanstone proposal was to replace the whole tree. But what might be planted in its place?
I proposed three general principles that, in my opinion, do the work of most regulations:
- That no person may intentionally or recklessly cause harm to another
- That no person may expose another to harm without their free, prior, and informed consent
- That no person may engage in unconscionable conduct to the detriment of another.
Although Ms Vanstone inclines towards the lawyer’s typical suspicion of broad principle (perhaps concerned about the relative lack of certainty and the attendant scope for judicial activism), she agrees that principles like these would fill the vacuum caused by a serious reduction in regulatory burden.
But then it occurred to us that our entire conversation might have been based on a false assumption: that Australians actually want less regulation. But what if they don’t?
I still recall Peter Costello’s comment, when Federal Treasurer, that business leaders would often demand of him—in one breath—less regulation and more certainty about where ‘the line is drawn’. He could meet one of their demands, but not both. So, what did these leaders really want? They wanted certainty, which led them to prefer regulation. And the wider community? Would it have a greater appetite for the exercise of personal judgement and responsibility? Would it opt for principle over prescription? These are the central questions.
There was a time when Australians were more willing to accept risk in return for a larger measure of freedom. No doubt there were mishaps, but perhaps not as many as some would fear. For the most part, the sawdust on the floor of butchers’ shops was regularly replaced when soiled, and the diligent merchant produced an environment no less hygienic than found amongst the hard surfaces mandated by today’s regulators. Bush fires are a scourge but few are the product of camp fires left unattended or carelessly set. According to the Australian Bureau of Statistics, natural causes (such as lightning strikes) are the most prevalent. And to the extent that humans cause fires, the real menace lies in the acts of arsonists rather than the accidents of errant campers.
The proposal to do away with the majority of regulation may be unrealistic. However, the guiding sentiment is well-founded. Our world is largely populated by decent people. They are capable of developing a variety of innovative solutions to day-to-day challenges. Life loses some of its magic when creativity is constrained by a one-size-fits-all approach to managing risk.
Would it really be so bad if we were to trust ourselves and each other a little more?
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Why compulsory voting undermines democracy
Australia is one of the 19 countries in the world that legally enforces the vote. For Australian citizens voting is not merely a right, but also a duty. First introduced in Queensland in 1915, extended to the whole country in 1924, compulsory voting is a salient feature of the Australian electoral system. But is it democratic?
The main argument in defence of compulsory voting is the importance of raising citizens’ participation in elections. Australia’s turn-out rate has never fallen below 90% since 1924, in striking comparison with most Western countries that struggle to reach 60%. These are nevertheless, merely quantitative considerations: the fact that more people go to vote is not a better thing for democracy. In fact, it could be argued that compulsory voting is likely to do more damage than good, by reducing the quality of the electoral outcome.
Forcing everyone to vote means that the voice of those with no interest in politics will influence the decision about who rules the country.
Forcing everyone to vote means that the voice of those with no interest in politics will influence the decision about who rules the country. This generates what author Jason Brennan calls ‘pollution of the polls’ in his book The ethics of voting1 and is one of the main causes of the actual crisis of democracy worldwide: incompetent politicians winning elections through media control (the recent case of Italy under Silvio Berlusconi epitomises this phenomenon).
By the same token, compulsory voting cannot be defended by arguing that a government’s legitimacy of a majority formed by a low turnout is questionable, for numbers alone do not add credibility in this regard.
Those who do not care about politics should not vote.
Favouring democracy to other forms of government cannot be because of the mere fact that democracy allows everyone’s voice in the public arena. This might be, if anything, a reason against democracy. Dragging people to the polls will do nothing to improve the quality of our democratic lives, insofar as people do not take seriously what they are doing. There must be something else that makes democracy preferable to other forms of government.
This something else is the empowerment of the citizen. In a democracy, everyone has the power to partake in determining the rules according to which the community should be run. However, the misunderstanding lies in the fact that democracy does not entitle citizens to do everything: it confers not only entitlements but also responsibilities. Those who do not care about politics should not vote.
It could even be argued that they should not have a right to vote, and maybe the state would be better off justifiably preventing them from, not forcing them into, voting. Citizens should undergo a basic competence test, as with driving. This is because careless voters may seriously undermine those other citizens who spend time and energy gathering sufficient information before voting.
People’s efforts to follow politics to develop an informed idea might be cancelled out by the vote of someone else who does not care, but still is given the power to vote. In such a situation, making the effort to follow politics might even be irrational for the individual citizen, given that this effort may well be wasted due to the careless voters. Thus, compulsory voting backfires twice, since it even makes it pointless for citizens to develop political awareness.
Compulsory voting may advance the misleading idea that democracy works even without citizens’ commitment or responsibility.
It is not only wrong to think citizens have a duty to vote. As Brennan argues in his book, it is rather the case that some citizens (those who do not care about politics) have a duty to not vote, for we all have duties to not cause damage to others. It is also the case that not everyone has the right to vote, for the latter is not an unconditional entitlement we receive through mere membership to a democratic community. If people do not care about politics, then they do not have a right to participate—forcing them to vote is counterintuitive, and counterproductive. The right to vote can be gained, and lost, depending on one’s commitment to democratic values.
Compulsory voting does not seem to offer any substantial advantage to the democratic life of a country, since quantity does not mean quality (and in the end, it is the quality of our decision-making procedures that should matter). Compulsory voting may advance the misleading idea that democracy works even without citizens’ commitment or responsibility. To be sure, no one should be forced to be a responsible citizen: however, neither should anyone be forced to do what responsible citizens can do; that is, cast their vote at election time.
Reference
1. Brennan, J. (2011), The ethics of voting, Princeton University Press
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BY Piero Moraro
Piero Moraro holds a PhD in Philosophy from the University of Stirling (UK), and a MSC in Philosophy and Public Policy from the London School of Economics.
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Big Brother is coming to a school near you
It’s Monday morning in Newcastle when a child arrives at school, places her finger on the scanner, and waits until a crackly electronic voice acknowledges her.
In Sydney, a wall-mounted CCTV camera records a 12-year-old boy entering a classroom and taking his seat. While this might sound like an Orwellian prophecy, it’s slowly becoming reality. Surveillance technologies such as CCTV cameras and biometrics are being used in schools across Australia. What’s the point? And what are the issues we need to be aware of?
Australia is tentatively following in the footsteps of the UK in implementing surveillance in its schools. In England, it is estimated that 85% of secondary schools have some form of CCTV system, and that a third systematically fingerprint pupils from the age of four. Schools in Australia haven’t reached the same level of near-ubiquity yet, but they are demonstrating a growing appetite.
The effectiveness of CCTV has never been proven and public support is often based on unsubstantiated political rhetoric that it ‘works’.
More than 50 schools in NSW have CCTV cameras in playgrounds and outside dining areas, with plans to install them in classrooms and corridors. Similarly, in Western Australia where the Department of Education confirmed its plans to roll out systems across the state’s schools, half of Perth’s secondary government schools have installed CCTV. Further momentum has been provided by the WA State School Teachers Union that tabled a motion to have at least five surveillance cameras installed in all schools.
The overarching reason cited for the use of CCTV is the prevention and detection of crime. However, it is important to remember that the effectiveness of CCTV has never been proven and public support is often based on unsubstantiated political rhetoric that it ‘works’. In the UK, arguably the CCTV capital of the world, a government funded evaluation failed to find evidence of efficacy. Just one out of 14 CCTV systems demonstrated a significant reduction in crime. More recent studies have revealed that for every 1000 cameras in London, just one crime per year is solved. A sobering thought when the government has already invested more than £500 million in the equipment.
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BY Dr. Emmeline Taylor
Dr. Emmeline Taylor is a Reader in Criminology. She has completed empirical research in a number of areas including; surveillance and the societal impact of new technologies, armed robbery, residential burglary, retail crime, crime and security in education, and several evaluations of criminal justice initiatives in England and Australia.
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Why have an age discrimination commissioner?
The Federal Attorney-General recently decided to amend the 2004 Age Discrimination Act to provide for a an Age Discrimination Commissioner in response to growing evidence of damaging discrimination on the basis of a person’s age.
This discrimination is all too widespread. It affects older people in the main, though people of any age, including young people, experience age discrimination at times.
We are increasingly aware that many able-bodied, keen and productive employees are forced out of the workforce in their early 50s, sometimes even before that, for no reason other than that the employer has bought into the idea, false as it is, that only younger people are dynamic, energetic and able to learn new ways of doing things.
This is age prejudice and it must be tackled.
Any form of prejudice in our society diminishes the person or the groups suffering from this discrimination and diminishes our society as a whole. At the Australian Human Rights Commission, our slogan is: ‘human rights—everyone, everywhere, every day’. We understand that a person’s human rights do not diminish because of their age, just as they should not be diminished because of their race, gender or in the case of a disability.
Australia has had laws against race, gender and disability discrimination for quite a long time. The Australian Human Rights Commission was established by law in 1986, to protect and advocate human rights and to work against illegal discrimination.
As our society and our law-makers came to understand the terrible damage done to individuals and to society by discrimination we have long been familiar with, they came to the recognition that there is another form of discrimination which potentially affects every single human being, and this is age discrimination.
When I think of the long journey we took in Australia to challenge and then to start to reduce discrimination on the basis of sex, I worry that it might take us another generation to get on top of age discrimination. But when I think this through, I come to the view that age discrimination is something we can challenge today and every day in many effective ways.
While it is always hard to get rid of deep-seated prejudices in society, we’ve all had a bit of experience in doing that and I hope we can learn from that experience and remove the burden of age discrimination quickly and completely.
At the Australian Human Rights Commission, my main tool in carrying out this work is the Age Discrimination Act 2004. Like other anti-discrimination laws, it makes illegal discrimination on the basis of age in fundamental areas including employment, finance, education, and goods and services.
The discrimination that is illegal and is causing great damage to individuals and to our economy is most strongly evident in employment.
The discrimination that is illegal and is causing great damage to individuals and to our economy is most strongly evident in employment. I have seen in my short period in this job a great deal of evidence that the mature age worker, and people from 45 are often categorised as mature age, is frequently subjected to workplace discrimination. This unfair treatment can lead to people in their early 50s finding themselves unemployed.
This can be a disaster. Because of age discrimination, people at that age have a very difficult time finding another job. They try hard, they submit many applications, but all too frequently they get knocked back without even an interview.
Of course at that age they are unlikely to have a lot of superannuation and they are not eligible for the age pension. They have to try to manage on the very low Newstart Allowance. Female employees can be in an even worse position because generally they have only small superannuation savings even if they are of an age that they can access their superannuation savings.
At the same time, employers throughout our economy, large and small businesses, are crying out for more skilled workers. Every day the media publishes stories about skills shortages holding back our economic growth.
Well, you might think the solution is obvious. It is in principle, quite obvious to me. Employers need to throw out their prejudices against mature age workers, look closely at the needs of their businesses, and the existing skills of their older workers, and see what steps they need to take to match the two.
In many cases, it will be simply a matter of providing their older workers with some training to upgrade their skills. In other cases, when they consult their employees, they may find that offering them more flexible hours, such as a shorter working week or a shorter working day, will ensure that the employees can keep their jobs and the businesses can continue to profit from their experience and loyalty.
The Hon. Susan Ryan AO was appointed Age Discrimination Commissioner on 30 July 2011. This is an extract from a speech she delivered to a Victorian Equal Opportunity and Human Rights Commission Forum on the Rights of Older People in Melbourne on 28 October 2011. You can read this speech in full at humanrights.gov.au
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BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
The Australian debate about asylum seekers and refugees
Debate about asylum seekers and refugees, especially when it concerns “boat people”, is often characterised by misrepresentation and hysteria. Amid all of the politics concerning the issue, the ethical dimensions of asylum are not always given their proper attention.
This paper seeks to offer a brief guide to the ethics of asylum and refugees, focusing in particular on four general questions:
- What should be the place of empathy and compassion in our moral reasoning with respect to asylum seekers and refugees?
- To what extent must any ethical account of refugee policy incorporate concerns about practical or political feasibility?
- What is the nature of Australia’s moral obligations to asylum seekers and refugees, and to what extent are these shaped by our understanding of membership?
- Can mandatory detention and offshore processing be ethically justified?
It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.
It is argued that empathy should figure in ethical reasoning, that it is irresponsible to adopt an ethical framework without attention to practical feasibility, and that in a liberal democracy, moral obligations are complicated by a value of self-determination.
In policy terms, the paper argues that it is difficult to justify the continuation of mandatory detention, and that onshore processing of asylum seekers who arrive in Australia by boat is the ideal response. Yet the latter would be best achieved with bipartisan political support and as part of a credible, regional solution. By itself, a shift to onshore processing is likely to lead to an increase in the arrival of boats carrying asylum seekers wanting to make it to Australian territory.
In such a scenario, political leaders must educate public opinion about asylum seekers and refugees and avoid politicking over boat people. Where such resolve is missing, a shift to onshore processing may carry the risk of a number of “spillover” effects – in particular, the possible undermining of public acceptance of a substantial, racially non-discriminatory immigration program, and of a multicultural Australian society.
If there is to be offshore processing, as may well be the case, there must be legislated minimum standards for how asylum seekers are treated in any offshore facility, based on relevant human rights standards, with adequate legal protections. It is also important that any durable policy response involves a regional dimension. It is important to ensure Australia bears a larger burden, if there is to be successful cooperation with our regional neighbours, particularly in stemming the arrival of asylum seekers by boat. It would be a demonstration of good faith if Australia should increase its intake of refugees under its humanitarian program.
There is also merit in proposals to establish an independent commission to facilitate informed public debate, and an independent authority to administer Australia’s humanitarian programs. At least until there can be strong bipartisan political leadership on this issue, it may be necessary to seek an institutionalised form of depoliticising this most divisive of issues.
Read Dr Tim Soutphommasane’s introduction to the Ethics of Asylum and Refugees Symposium, held on 30 June 2011.
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BY Tim Soutphommasane
Tim Soutphommasane is a political theorist and Professor in the School of Social and Political Sciences, The University of Sydney, where he is also Director, Culture Strategy. From 2013 to 2018 he was Race Discrimination Commissioner at the Australian Human Rights Commission. He is the author of five books, including The Virtuous Citizen (2012) and most recently, On Hate (2019).
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Who’s your daddy?
“Discrepant paternity” – or what fathers’ rights discourses call paternity fraud – has become a rallying point for parts of the fathers’ rights movement. Though fathers’ rights groups have successfully engaged with the media and politicians to achieve desired changes to the family law system, what is novel is the use of paternity fraud discourse to achieve these ends.
Types of paternity fraud
Bureaucratic and fathers’ rights discourse use the term paternity fraud to refer to two distinct phenomena. The first is where non-biological fathers are assigned legal and fiscal obligations for children they have never parented and may not even have known existed. Men attempting to use DNA evidence of non-paternity to terminate such obligations are blocked by legal and/or bureaucratic obstacles.
The second referent for paternity fraud in fathers’ rights discourse is the discovery by a man in a married or de facto relationship, through deliberate or incidental genetic testing, that he is not the biological father of one or more of the children he is parenting.
In Australia, the case of Liam Magill is a classic case of what I will call ‘cuckold’ paternity fraud. Several years after separating from his wife Meredith, Magill subjected his three children to secretive DNA paternity testing that revealed that the two youngest were genetically unrelated to him. He successfully terminated child support payments for these children and, because he was in arrears for payments for all three children, was effectively offered a refund for previous amounts paid for the two when this debt was cancelled.
Despite this, Magill pursued a claim for compensation from his wife on the grounds of deceit. While a lower court awarded Magilla $70,000 for pain, suffering and economic loss, the Australian High Court eventually dismissed the case on the grounds that the tort of deceit was an inappropriate vehicle for remedying the wide variety of dissimulation that can occur in intimate relationships.
Motivations for testing
Father’s rights groups claim that between 10 percent and 30 percent of children are being parented by men who are unaware they are not the genetic father. These figures are used to support their contention that discrepant paternity is a widespread social problem in need of systemic address through changes to family law and policy.
Fathers’ rights discourse implies that men are the prime instigators of paternity tests in the face of duplicitous and resistant mothers. This depiction is particularly seen in the push by fathers’ rights groups for ‘motherless testing,’ or the testing of the child’s DNA without the mother’s consent.
In arguing in favour of the legality of this sort of testing, fathers’ rights advocates claim that any law requiring the consent of both parents would effectively deny fathers the ‘right to know’ because mothers with something to hide would always withhold consent for the child to be tested.
Fathers’ rights discourse articulates four ways in which paternity fraud cheats or defrauds men or children: first, by creating a relationship between a man and a non-biological child/ren; second, by stripping non-biological fathers of the resources they need to start another family in which they can create and raise biological progeny; third, by denying the biological father knowledge of his progeny and/or a chance to form a relationship with that progeny; and fourth, by denying children full and factual knowledge of their biological origins and the resulting opportunity to both form a relationship with their biological father and to gain knowledge of paternity genetics essential to their health.
The central claim of paternity fraud discourse is that a man’s relationship with a non-biological child does not constitute a real parent–child relationship, and that cuckold paternity fraud cheats or defrauds husbands of real fatherhood.
The causative agent in this fraud is the unfaithful wife who, through her sexual infidelity and subsequent failure to disclose it, causes the man to form a relationship with a biologically unrelated child that he wrongly believes – and has a right to expect – is his biological progeny. In its arguments in favour of compulsory DNA testing at birth, the group Men’s Confraternity reveals its understanding of authentic fatherhood as biological fatherhood:
“DNA testing should be a compulsory procedure at the birth of every child born to ensure that the correct father is registered. Paternity must be determined via DNA testing at birth because any man can be deceived into believing they are the father.” (Men’s Confraternity, 2006)
Citing figures impossible to confirm, the website Men’s Rights Online asserts that non-biological relationships between men and children provide no basis for legal paternity and its attendant fiscal obligations for children:
“The Court System … forc[es] males to continue paying child support for children that they are NOT the biological father of as DNA testing proves. It is also brought to the knowledge of the judges in the individual cases that DNA testing proves the male paying child support is NOT the biological father… A minimum of 1,600,000 (1.6 million) males are being forced to financially support children that they are NOT biologically related to.” (Men’s Rights Online, 2003–2006)
Implicit in much paternity fraud discourse are normative claims about the wrongs of female infidelity and subsequent duplicity with regard to it, and the potential reproductive consequences. Justice, the discourse suggests, requires men to be released from support obligations for children of the marriage not just because of the non-biological relationship between father and child, but because they have resulted from illegitimate female sexual and reproductive activity.
Paternity fraud discourse also asserts that, when biological paternity is wrongly ascribed to the social father, the biological father loses the opportunity to know he has a biological child and/or accept rights to and responsibilities for this child. The group Australian Paternity Fraud, for instance, claims that paternity fraud ‘victims’ include “the biological father that may not even know he is a father and who, when the deceit is uncovered, will suffer … mental … damage”.
Finally, it is asserted that paternity fraud denies children necessary knowledge of their biological origins, the chance to form a relationship with their biological father and the knowledge of paternal genetics necessary for optimal medical treatment.
At the heart of cuckold paternity fraud discourse is the claim that real fatherhood is biological fatherhood. However, neither this assertion nor assertions about the threat to children’s health posed by non-disclosure of paternal genetics stand up well to scrutiny.
Legal definitions of parenthood
DNA paternity testing is often credited with causing the paternity fraud phenomenon. When performed properly, DNA tests guarantee a 99.9% probability of paternity.
Legislators in both Australia and England see the commercial paternity testing industry as a means of reducing the cost to taxpayers of growing numbers of socially fatherless children. They understand that, while not all children have social fathers, they all have biological ones, and that the new testing technology could, for the first time in history, reliably identify these men.
Affordable and reliable genetic testing is available, and the legal and financial implications of test results for men, women and children are significant and profound.
Motivations to test
While research data are scant, those available suggest a variety of motivations for both men and women to undertake or consent to tests that lead to the discovery of discrepant paternity.
Counter to the picture offered by fathers’ rights discourse, such tests are not always undertaken by men in the face of the mother’s ignorance or resistance.
Discrepant paternity may be discovered via a genetic test taken for other reasons. For instance, genetic tests may be performed on the parents of a sick child to ascertain whether the illness is caused by a hereditary condition or to determine whether the parent is a tissue match for a sick child. Parents of children diagnosed with a hereditary condition may also undertake genetic tests to discover their carrier status and the risk of transmission to future children. Separated and divorced mothers may test their children in the hope that proof of the social father’s non-paternity will allow them to block their ex-husband’s access to children of the relationship.
It is perhaps worth noting that the potential for mothers to deploy DNA paternity testing technology against social fathers to deny them access to children they have parented within the marriage was an early concern expressed by academic lawyers about the widespread use of DNA testing technology and concomitant legal changes to definitions of paternity and paternal obligation. This worry – about the risk testing posed to the maintenance of men’s relationship with children – contrasts with what appears to be the main concern of contemporary academic lawyers: the claimed injustice of men’s inability to shrug off support obligations – and be compensated for past amounts paid – for genetically unrelated children.
Single and divorced mothers may wish to test, or be coerced into doing so by the state, in order to facilitate the identification and/or enforcement of paternal support obligations. In Australia, England and the United States, a failure to identify and, where necessary, prove the paternity of their child’s father may put all or part of the mother’s welfare benefits in jeopardy.
In Australia, it is estimated that around one third of tests are sought by mothers wanting or needing – through obligations related to their pension – to enforce child support obligations from biological fathers.
As well, men, or parties acting on their behalf, pursue tests. They do so, the evidence suggests, not to satisfy a disinterested pursuit of the truth – as father’s rights discourse often suggests – but in the hope of altering existing legal and fiscal obligations for children.
The link between men’s, their new wives’ or their parents’ decision to test and the desire to alter legal responsibilities for children in the wake of relationship breakdown is further supported by Australian data showing that at least some men who test know that the child of the marriage is or may be genetically unrelated to them.
Finally, men with little doubt about their biological paternity may test to humiliate estranged partners and/or delay paternity adjudication and the assignment of support obligations.
Harm to children
The fathers’ rights argument about a child’s right to know takes in both the idea that the creation of a parenting relationship between a father and a genetically unrelated child is wrong because it is not a ‘real’ parent–child relationship and the claim that children’s health and identity formation are harmed by ignorance of their biological father’s existence and paternal genetics.
Claims of a child’s right to know also encompass assertions about the harms to children’s health resulting from non-disclosure of paternity uncertainty or discrepancy.
The claim that only biological paternity is real paternity is asserted rather than argued in father’s rights discourse, and is contestable on moral, logical, evidence-based and consistency grounds. In particular, the lack of argument leaves many questionable assertions including, though not limited to: What makes biological parental relationships real or valid in a way non-biological ones are not? How can genetics be understood as critical to the creation of real parent–child relationships when parties to such relationships can die unaware that their social parent–child relationship was not accompanied by a genetic one? If non-genetically based relationships between men and children harm both, how can the deliberate creation of such relationships in some contexts, most notably where a couple is infertile, be justified?
The central role that fathers’ rights discourse gives to paternal genetics in the establishment of a child’s identity may also be questioned.
While reflective of dominant Western social understandings that biological or blood relationships form the basis of kinship, Ruth McNair argues that “non-biological parenting has existed for millennia as a successful and meaningful addition to or replacement for biological parenting” (McNair, 2004, p. 39).
While some evidence exists to support claims that children may be harmed by the failure to disclose the existence of non-genetic parental relationships, McNair has found that this harm appears largely attributable to secrecy about the existence of such relationships rather than to a decisive role of genetic knowledge in identity formation (McNair, 2004, pp. 39–45).
Indeed, McNair adds:
“… the profound role social parenting plays in children’s understanding of who they are may be why some adopted children choose not to pursue knowledge about their genetic parents and suffer no negative outcomes as a consequence.”
Of course, identity is hard to define and measure, but this does suggest that, while it may be preferable for parents to give their children a truthful account of their conception story, including information relevant to their genetic lineage, the failure to do so need not necessarily damage children’s identity formation or overall social and psychological wellbeing.
The failure of fathers’ rights discourse to problematise the potential harms to children resulting from men’s behaviour around cuckold paternity raises questions about the sincerity of such concerns.
For instance, the discourse is largely silent on the question of paternal motives for testing and silent about the harms caused by men who respond to test results disconfirming biological paternity by abandoning children they have parented from birth.
In contrast to the gendered and non-nuanced depictions of cuckold paternity offered by fathers’ rights groups, analysis and evidence suggest that discrepant paternity reflects the complex nature of sexual and intimate relationships at the end of the twentieth and start of the twenty-first centuries.
At the heart of cuckold paternity fraud discourse is the claim that real fatherhood is biological fatherhood. However, neither this assertion nor assertions about the threat to children’s health posed by non-disclosure of paternal genetics stand up well to scrutiny.
In contrast, feminists who value autonomy may share concerns raised in cuckold paternity fraud discourse about the harm suffered by men and children when informed consent is denied.
Defining fatherhood in social and intentional terms could end the nexus in law, social policy and the public imagination between biological fatherhood and fiscal obligations for children, undermine the ‘you play, you pay’ philosophy supported by biological definitions of fatherhood, and reduce demand for DNA paternity testing with their high costs to father–child relationships.
References
McNair, Ruth (2004), Outcomes for children born of ART in a diverse range of families (occasional paper), Victorian Law Reform Commission, Victoria, Australia.
See also Men’s Rights Online at www.mens-rights.net/law/paternityfraud.htm and Men’s Confraternity at www.mensconfraternity.org.au
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BY Leslie Cannold
Dr Leslie Cannold is a bio-ethicist, researcher, writer, commentator and an Honorary Fellow at the School of Philosophy, Anthropology, & Social Inquiry at the University of Melbourne, and lecturer at the Centre for Gender and Medicine at Monash University.
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
Has passivity contributed to the rise of corrupt lawyers?
When China – one of the world’s biggest economic powers – applied to join the World Trade Organisation (WTO), it had to promise it would carry through root-and-branch reforms of its laws and legal systems before it was considered eligible to join.
Like it or not, the WTO coalesces national sovereign and private mercantile interests, and it has unparalleled influence. What the WTO’s members say really counts.
The demand, made and accepted in 2001, was that China apply and administer in a uniform, impartial, and reasonable manner all its relevant laws, regulations, and governmental measures. Its requisite tribunals must be impartial and independent of concerned agencies of the executive or other parties. China would commit to systemic reforms that would promote transparency, predictability and fairness in business dealings.
The US Senate Finance and House Ways and Means Committees asked the US General Accounting Office (GAO) to monitor China’s implementation of its WTO commitments. A preliminary report was given by the GAO to the Congressional Executive Commission on China in mid-2002. The rule of law, and the new WTO member’s aspirations with regard to it, were the focus. US businesses considered it very important – especially as the actual characteristics of the current Chinese legal system included subordination of law to Communist Party policy and a lack of independence of the courts.
Also reported were the “challenges” – a synonym for difficulties and obstacles – conceded by some Chinese officials consulted by the GAO. This was alongside the detected considerable progress, “on paper”, in China’s efforts to render its legal system WTO compatible. But the progress was not just on paper. As a climax of its testimony to Congress, the GAO concluded what really showed China’s substantial shift toward a rule-of-law oriented society was the recent proliferation of law schools and legal training. There would be more lawyers, in the service of business, through a sound system of justice. “Lawyers and money” is not only a chapter heading of the most cutting part of a New Yorker-style book of jokes and cartoons.
The next early 21st-century occasion for reflection on lawyers and money flows from domestic US financial scandals. The spectacular rort at Enron was merely the example of a “supposed mischief” best known to the general public. “A supposed mischief?” It wasn’t the spectacle of big business using clever accounting and innovative so-called financial products or structures that spurred the United States Congress to action. No, it was the perception of crimes and frauds – telling lies when asked to show someone the money.
And at the heart of the Congress response to the excesses of capitalist greed was a special whistleblower role for the lawyers of possibly delinquent business clients – that is, clients reasonably suspected by their own lawyers of breaking legal standards concerning corporate securities. This is not an exotic foreign frolic – it clearly has influenced the various legislative suggestions afoot now in this country.
Just as the WTO demands on China as a new member show the country’s burgeoning attachment to an internationalised concern, so too the US Sarbanes-Oxley Act of mid-2002. Governments friendly to business, at least that of their own nationals, and willing to trade reciprocal standards with other governments, are clearly persuaded of the crucial part for lawyers in the serious matter of money and moneyed exchanges.
Under section 307 of the Sarbanes-Oxley Act, the US Securities and Exchange Commission (SEC) was required to issue rules for minimum standards of professional conduct for attorneys involved in matters of issued corporate securities, most obviously equity shares. Foreign lawyers were expressly in the frame. The only explicit requirement for these new rules was stipulated to be an obligation to report – “up the ladder” – dishonest corporate conduct.
The draft rules went on to permit reporting, or dobbing, externally, to the SEC, without lawyers breaching their duties of confidentiality. The touchstone is the involvement of the attorney in suspect behaviour, presumably unwittingly until he or she forms the reasonable suspicion in question. It can be seen how much further the Americans were prepared to consider going, compared with the current and understandable Australian professional worries about privilege and loyalty to clients.
By August 2003, consultations were over, and the final rule was promulgated. Commentators from the legal profession had uttered various dire warnings, some with much substance. The requisite record-keeping was viewed askance by some, as increasing a corporate client’s (or employer’s) vulnerability in litigation by forcing reports that would be a treasure trove of selectively damning evidence. A new and glittering prize for pre-trial discovery.
But the SEC pressed on, convinced that these new responsibilities for commercial lawyers would be an early remedy of illegal behaviour. This would, in turn, boost investor confidence – itself self-evidently good, however deluded some participants in irrationally exuberant booms have surely been.
How revealing that the most effective pressures for such radical change in professional obligations was the perceived need for honest capital raising. Congress’s charge to the SEC in section 307, after all, was put in the language of “the public interest and for the protection of investors”. If they know the business of America at all, it seems Congress members are – or at least a majority of them – persuaded of the critical, protective role of lawyers in the world of money.
Of course, it is not only big business, international trade, and the capital markets that display and need the good offices of decent lawyers. The myriad transactions and relationships of private and business dealings, large and small, have the same dependence.
Whatever else should be boasted or confessed about lawyers and money, it’s nonsense to suggest the legal profession is unproductive. Let wheat and beef growers, manufacturers of widgets and coal magnates, imagine the results of their efforts without laws of contract, punishment of theft, and enforcement of quarantine regulations. Then let them realise the essentials of government, and the integral component of government that is the part of lawyers. Even the most Luddite critic of the WTO, after all, shares its regard for the rule of law, differing only on the desirable extent of what may be called globalised jurisdiction.
The note of self-congratulation starts to falter at this point. The useful service of mercantile interests, in the public interest, poses conflicts and embarrassment for the legal profession. Traditional restraint and constraints are freshly needed, but may not be adequate in their existing forms. For example, while imitation of clients is universally rejected when lawyers represent criminals, it’s massively growing in the case of lawyers advising on and representing the interests of money.
Before elaborating on this, there is the perennial but less pressing matter of fees. Only about half of law-school graduates take up careers in private practice. The others practise law as government public servants, as corporate counsel, and in legal aid and other salaried non-profit sector positions. But public comment on lawyers and the money they get fairly focuses the emphasis on those lawyers who derive income from fees paid by clients.
Are those fees too high? Answers range from a hostile affirmative from those who regard lawyer jokes as sound sociological observations, to a righteous negative from the organised profession. Because the question is usually posed in a judgemental context, the wide range of answers can simply be noted, with a quiet rider that very similar questions could be asked about every other profession, trade and occupation – and often have been.
Regulators of the legal profession, it is interesting to learn, have not seen evidence of any major, let alone growing, incidence of genuine complaints about overcharging. Some reasons are, probably, that prior disclosure and agreement of legal fees are compelled, and that litigation fees are indirectly supervised by the courts especially through costs orders, and that commercial transaction fees increasingly are struck in competition against other advisers such as accountants and merchant bankers. And then there are, in fact, a lot of clients who observe how hard and well lawyers work to provide their services.
Sanity checks can and should be applied. If you want a New York salary, go there. If you are embarrassed by your large local fees, why not call them excessive and therefore reduce them? Should lawyers perhaps see their most expensive colleagues as, just maybe, not the best value for their clients?
But complacency, self-satisfaction and a kind of guild smugness await a legal profession content to leave issues about the level of legal fees in this neat package. Other tertiary-educated but less well-remunerated occupational groups are entitled to challenge lawyers on how much we’re paid. Lawyers can’t keep referring back to their years of study and early period of modestly paid apprenticeship. The former is not so long, and the latter is perhaps not long enough. Could HECS payments be the next form of this kind of self-justification? What multiples of annual earnings could one seriously claim on that account?
Increasingly, the pay of lawyers is justified by reference to the money offered in, say, London, New York, and Chicago. It suffices here to ask, how does the salary given for professional serfdom in those centres of commerce raise what should be paid in Sydney, Melbourne, and Perth? Sanity checks can and should be applied. If you want a New York salary, go there. If you are embarrassed by your large local fees, why not call them excessive and therefore reduce them? Should lawyers perhaps see their most expensive colleagues as, just maybe, not the best value for their clients?
Litigation currently displays aspects of a legal culture war. The Bar’s (and some solicitors’) time-honoured speculative (“spec”) briefs long ago won the High Court’s admiring approval. Almost as long ago, barristers recognised the possibilities for corruption posed by the spec representation of plaintiffs for whom the best, or only, prospect of a financial return might turn out to be a settlement – that is, a compromise less than the client wants, as compromises tend to be.
In hindsight, it is not surprising that the noble if flawed tradition of spec briefs – no win, no pay – has flowered, or exploded, into the frankly entrepreneurial industry of litigation funding, usually associated with what are dubbed “class actions”. No-one who has advised or appeared on either side of these models of modern litigation could be unaware of the fertile soil they present for conflicts of the most venal kind.
Who are the clients? Who is the master of the case? What does it mean, socially and professionally, for litigators to spur into action those whose claims were neither pressing nor large, but who belong to a formidably large group of similarly unenthusiastic pseudo-litigants? Apparently, it produces major litigation, enthused by the money it promises for funders and lawyers. But who is to say that this kind of money for lawyers does not, in reality, provide justice where formerly access to it was too expensive? The High Court will soon be looking at these questions.
As a former NSW Bar president I can’t depart the topic of legal fees without reliving shudders about lawyers and the flouting of their taxation obligations. Because it is lawyers, not just barristers, nor New South Wales.
Lawyers have no better immunity than anyone else from the requirements to render annual returns of income and to pay the tax due. If anything, the publicly funded system in which all lawyers – not just litigators – work makes it all the more intolerable that some lawyers resist meeting such reasonable obligations.
The statutorily deemed debt that is income tax is not, contrary to a stray dictum in the Court of Appeal, indistinguishable from debts incurred in private life. Welshing on the democratically set tariff for benefiting from organised society is, as the Court of Appeal has well and truly held, a special sign of unfitness for the office of lawyer.
This, hopefully temporary, embarrassment from a dysfunctional relation between lawyers and their money has undoubtedly added to the burdens of leaders of the profession when they lobby politically for the really very modest money demands of their most vulnerable clients – those who have suffered personal injury. Lawyers are now constantly met with strident protests that they are merely engaged in lining their own pockets.
It is, of course, true that restored or enhanced rights to compensation for the injured will end up providing work for the lawyers engaged in such disputes. The same truism applies to those who provide food, shelter and health care for those who need it – but that does not disqualify providers of those social goods from being politically active in promoting fair and general access to those goods. Actually, providers quite often know quite a lot about the weaknesses of current methods of provision. But for some time to come, lawyers will be handicapped by cynical responses as they try to advocate the claims of injured people for fair compensation payouts.
Meantime, over the last two decades the legal profession has been officially told to face up to being in business. Although there has been no official rhetoric to countenance backsliding on professional ethics, there has been any number of government enquiries and statutory overhauls to enshrine, proselytise, and – to a degree – compel the observance of competition principles. In this country, the regulatory politics have gone so far as to challenge, as anti-competitive, the Bar’s prohibition against the combination in business of advocates who would otherwise be each other’s competitors. Fortunately, that challenge has yet to succeed.
Thoroughgoing reviews of the legal profession in England and Wales and in Ireland concluded that most aspects of the institutional structures and practice regulation should conform to the laissez-faire model overtly driven by self-interest for money. In the lobbying clinches, time and time again, consultants to these enquiries made clear their political economy bent – the provision of legal services is not so different from that of any goods and services, many of which also require obvious quality and honesty regulation. Lawyers and money are thus treated as amounting to legal practice as entrepreneurial business, to be encouraged to act according to the profit motive.
None of the law reform reporters or attorney-generals responsible for the slightly muted competition march in Australia has intended any weakening of the legal profession’s ethical vigour. But their failure to slow, let alone halt, the slide into legal practice as a business brings about intolerable conflicts of interest and duty.
Of course, competition principles have inspired some salutary changes to the legal profession, not least an insistence that we justify in the public interest our grab-bag of rules and customs, some of which could sensibly be thrown out or dusted off.
Lawyers and money are thus treated as amounting to legal practice as entrepreneurial business, to be encouraged to act according to the profit motive.
In parallel, the last three decades of litigation and court reforms illustrate a continuing paradox of that project. As the court system improves in the direction of “just, quick, and cheap”, one of the aims is to reduce the volume of contested cases. This is to direct the public funding and the private expense of litigation to the tiny minority of cases where compromise is either not preferable or not possible.
But as success reduces delays in court lists, and speeds up hearings and streamlines costly procedures, so the calculus that determines which cases are better settled or fought shifts in favour of fighting. In this endless circle, the relation of lawyers and money displays in its most striking fashion our dependence on government and public funding.
How could lawyers discharge that social responsibility and honour that dependence if the standing of individual lawyers is measured by how much revenue they generate? What chance of litigation reform if the profession, metamorphosed into business for profit, explicitly disapproves of a lawyer devising the least costly option for the client? Imagine if medical practitioners took the approach that professional kudos should go most to the doctor who performs the most procedures for the largest fees on a particular patient?
It is not as if all competent and hard-working doctors and lawyers make inadequate incomes. Or has that observation lost its force, by the much closer proximity of commercial lawyers, in the service of big-business clients?
Lawyers are frequently parts of multi-disciplinary teams helping big business do business or government sell public assets. Other members of those teams are accountants. Accountants are well paid, too, and it may be that some are so well paid that they have encouraged commercial lawyers to feel their own value is under-appreciated by their common clients.
But perhaps the star turns are the merchant bankers. Scarcely merchants, although very mercantile. Usually not really bankers, but rolling in money – with pieces of the action, capitalist venturers, and people the lawyers briefly knew at university. No wonder the published aspirations of many big law firms have much more in common with large accounting combines and dazzling millionaires factories, than with their legal colleagues in small firms, in the country and in sole practice.
So too, it may appear, much of the work of commercial lawyers has a diminishing connection with justice, let alone an involvement in its administration. The wrong fork in the road was taken when the profession determined to specialise and sub-specialise its brightest graduates almost as soon as they had obtained their generalist law degree and practical legal training.
In many cases, the commercial lawyers are really part of the clients’ entourage, being served with the client by the litigators and counsel. Perhaps it is time for that division to be recognised formally. The lawyers closest to the big money of their business clients, having nothing really to do with the general corpus of law and no real interest in the administration of justice, might leave the legal profession and join with the management consultants, accountants, finance brokers and merchant bankers.
Much of the work of commercial lawyers has a diminishing connection with justice, let alone an involvement in its administration.
Excessive proximity to business clients, and their money, seems to have produced elements of imitation unlikely to enhance professionalism. The phenomenon of the big – and bigger and bigger – law firm should not simply be witnessed as if it were a force of nature. If we pinch ourselves, it will be remembered that not long ago the leading firms in this country, big by the standards of their times, had so few partners and staff that, by the standards of our time, they would not even be considered as mid-tier firms.
Yet were they able to conduct the largest and most complex litigation, minister to the most important property and commercial transactions, that their clients required? Could they carry out the legal research and inculcate the scholarship needed to advance the law and win the hardest cases in the highest courts? Were they good lawyers? Did they live in penury? The answers to those questions certainly do not support the truth of slogans such as “grow or die”. They do not substantiate the claim that only mega-firms have the capacity, whatever that means, to provide the services required by mega-cases.
One of those mega-cases being fought at the moment caused a press commentator to wonder whether, even for the magnates involved, it was so expensive that it might be the last hoorah for such major litigation. For some, this would be wishful thinking, for others an appalling downturn in their market. It is as unlikely as the death of the novel.
Yet very large pieces of litigation should not be deplored. Especially in commerce, very large forces do have disputes with each other, sometimes on a tectonic scale. Of course this jurisdiction and its lawyers are the best place and people to help resolve such disputes. Mega-cases are not really the problem. But thinking that the possibility of them occurring from time to time means that mega-firms need to exist constantly – that is a problem.
Competition theorists frequently talk up the promises of economies of scale. The idea is that a mass-produced motor car will be much cheaper and perhaps better than a custom-made one. Everyone wins (apart from the custom-builders). If that analogy held good for the provision of legal services in private practice, the biggest firms would have the lowest fees. But they don’t. If it held good, the biggest firms would provide legal services to the broadest range of willing clients. But they don’t.
Motor car manufacturers don’t incur fiduciary and other obligations like confidentiality which prevent them from selling their models to all comers. Lawyers do. The economy of scale is not a useful concept to justify more and more lawyers becoming less and less available to more and more clients – which is an inexorable effect of big firms, demanding business clients and reliable registers of conflicts.
The financial pages of serious newspapers have started to report and discuss the performance of big and aspiring middle-sized law firms in a sometimes fascinating mixture of sporting journalism, theatre reviews and gossip columns. Virtually the only yardstick of performance, equated to professional quality, is money. Very occasionally, the money won for the client, never the money saved by the client, nor the value bought by the clients’ money. Mostly just the money received by the firm, the revenue.
To rub it in, the figures are presented and re-presented to drive a message home. Whether it is the journalists or the firms who want the message sent is difficult to say – but one rarely reads of disclaimers or resistance by the firms with the glittering figures.
What is the message? That money defines the most desirable professional attainments in private practice. See the number of leveraged fee-earners per equity partner, or the revenue per head of professional staff. Marvel at the margins between revenue and costs, and especially the profit per partner. Business clients presumably put up with this perverse publicity on the part of their chosen lawyers, because imitation is understood to be the sincerest form of flattery.
It is doubtful whether the elaborate and intelligently managed businesses thast are the big law firms seriously claim they’re the only ones capable of doing what much smaller firms used to do – that is, deploy learning, integrity, imagination and loyalty in the fused service to clients in the administration of justice. What attribute necessary for that exercise may be found only in big firms? If really large teams are from time to time required, why not form ad hoc alliances?
It would be demeaning to justify big firms getting bigger so as to provide lots of IT, word processing, and photocopying. Those activities are no more professional than stationery is the business of a bank.
If all this misunderstands the way the world is, and vainly protests against progress, the path taken by lawyers imitating business clients has some interesting milestones coming up. Business outsources not only clerical drudgery but also highly skilled and relatively capital-intensive IT and document management – and outsources them to the ancient home of mathematics in India. Why shouldn’t massive mindless discovery be conducted in Mumbai. The requisite partner in charge could go there to supervise paralegals retained at much cheaper prices than permanent paralegals on staff in Sydney.
If money is the measure, who would dare to say that money for the lawyers is more important than money saved by the clients? Whenever functions or activities in the practice of law are no longer the essentially mental, personal and individual professional responsibility of lawyers, then the money spent on those other activities and functions surely should be spent as cheaply as possible in the clients’ interest.
The money necessary to keep a big firm going, to open the doors every morning (assuming they ever close during the 24 hours), is pretty scary. Decent human and social responsibilities to the many members of staff and their families mean that the partners and lawyers must generate very large sums of money by fees from clients, at a more or less constant level.
Perhaps it is time to ask if that business model presents, in the most obvious fashion imaginable, an intolerable conflict between the partners trying to do the right thing by their colleagues and staff at the firm, and doing the right thing by minimising their clients’ expenditure on legal services.
That conflict is presented in a form of dispute that very rarely reaches public attention. One of the less pleasant areas of advice work for some lawyers is partnership disputes – once upon a time dissolutions but now usually expulsions – among the partners of the larger law firms. There is good reason, from the point of view of public relations, for these disputes very, very rarely to go to court.
Increasingly over the the past 15 years, expulsions (and their precursors, downgrading of remuneration and support) have been decided on the basis of performance. What could possibly be wrong with that? Well, performance is invariably measured by money – and only money in the form of revenue.
The partnership deeds, the manuals and protocols all have commendable and sincere statements of professionalism, ethical service to clients and adherence to the requirements of law and justice. Those explicit standards of practice, not measured in money terms, only make clearer how important revenues have become. The non-mercenary standards are available to judge performance, but they are not used. Only revenue. Financial reasons are obvious and understandable. They include equally understandable grievances at partners who are not pulling their fair share of the heavy weight of paying to keep a big firm in business.
One expedient which may defer that intolerable conflict is for lawyers to join their business clients lock, stock and barrel. Not only the modest degree of corporatising already permitted, but out-and-out commercialising with publicly raised equity capital. Why should their own IPOs not become a new kind of professional achievement for lawyers?
When Teddy Roosevelt took on the Rockefellers and their ilk, Standard Oil must have appeared to be a natural growth of business conducted with appropriate self-interested vigour. There are probably still many who think anti-trust policy should never have made it into the statute books in the US or anywhere else. As you may have gathered by now, I’m not one of those. Industrialists and money need curbs and controls especially in relation to size and domination. So too, lawyers and money.
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BY Bret Walker
Bret Walker has been a barrister practising at the NSW Bar since 1979 and was appointed Senior Counsel in 1993 and Queen’s Counsel in 1994. He is a Foundation Fellow of the Australian Academy of Law. He was the inaugural Independent National Security Legislation Monitor from 2011-2014 and has been a member of the NSW Health Clinical Ethics Advisory Panel and a director of the Sydney Writers Festival.
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
An ethical dilemma for accountants
What if a loyal accountant was asked to fudge some figures on behalf of their company, all while straining under a new mortgage?
Imagine that you are the Chief Financial Officer of a medium to large company. It is April and the Chief Executive Officer has just returned from a meeting with the company’s bankers. She calls you to her office to discuss the results of the negotiations. As things stand, the company requires a fairly significant injection of capital which will be used to modernise plant and equipment. The company has been promised new orders if it can produce goods to an international standard. Existing machinery is incapable of manufacturing the required level of quality. Whilst the bank is sympathetic, current lending policies require borrowers to demonstrate an adequate current and projected cash flow, as well as a level of profitability sufficient to indicate a capacity to make repayments from an early date. The problem is that, largely because of some industrial problems, the business has not been performing at a level which realises even its ‘unimproved’ potential. Strictly speaking, the figures would not satisfy the bank’s criteria.
The CEO reminds you of all of this and then mentions that she has told the bank that the company is in excellent shape, that she believes that its financial results will meet the criteria and that she will ask the Chief Financial Officer to deliver a financial report to the bank at the beginning of the next week. She tells you that it is up to you to decide upon the contents of that report.
Two final pieces of information; you have recently purchased a home – leveraged with a significant mortgage. Failure to invest and gain the promised new orders is almost certain to lead to major retrenchments of personnel.
What are the issues?
What are some of the ethical issues arising in a case such as this? For the most part they are fairly obvious:
Should the accountant tell the truth to the bank, irrespective of the consequences?
Does it really matter if the accountant massages the figures, perhaps factoring in notional income arising from projected new sales that will be made once the new plant is operational? After all, the projected cash flows are the really important thing to consider.
- Does the accountant have a duty to do everything possible to ensure the preservation of jobs at the factory?
- Is the self-interest of the accountant a justifiable concern?
- How should the accountant tackle the matter of loyalty to the CEO?
Whilst this presentation involves a fictional dilemma, it is not too far removed from the actual experience of many practitioners. Even so, it is important to realise that there is still something rather artificial about such a construction. It’s not that the case is unreal. Rather, the problem arises from the fact that most ethical dilemmas are of a much smaller dimension, perhaps lacking the obvious significance of the type of ‘big ticket’ issue outlined above.
So commonplace that it is sometimes ignored
Indeed, one of the things that we need to recognise is that many people find it difficult to recognise an ethical dilemma as such. It is not that most people are inherently unethical. Instead, the problem is that many people are unconscious of the fact that nearly everything they do has an ethical dimension. Before trying to explain the reason for this, it may be interesting to pause and consider some of the relatively ‘invisible’ cases where ethical questions seem to be ignored. Take a simple example; have you ever seen a person avoid taking a telephone call by telling someone else to answer and say that the person is not there. Even such a simple case has at least two aspects to consider. Firstly, there is the matter of deceit and secondly there is the matter of getting someone else to do the ‘dirty work’.
It is not that most people are inherently unethical. Instead, the problem is that many people are unconscious of the fact that nearly everything that they do has an ethical dimension.
Some might respond by saying that this sort of behaviour is quite harmless. But is it really? What sort of message does such behaviour give about the prevailing values of an organisation? How easy is it to accept an avowal of honesty from a person who is habitually deceitful for the sake of minor personal convenience?
Some people take a similar line when it comes to filling in a tax return, or when producing financial statements or when trying to do a cost benefit analysis that compares product safety with cost of production, retrenchments with increased dividends to shareholders. Practical concerns and pragmatic considerations can make one relatively blind when it comes to spotting ethical issues that arise.
The reason for mentioning these cases is to demonstrate how even simple forms of behaviour are loaded with ethical significance. This ceases to be any kind of mystery once it is realised that ethics is all about answering a very fundamental question, namely, “What ought one do?”. As you will appreciate, this ancient question is an immensely practical one that admits all manner of answers. Some of these answers are given in the form of established moralities, frequently expressed in the writings and teachings of great religions. Other answers have been generated by philosophers searching for theories that might give some rational underpinning to answers about the nature of ‘right living’.
As this audience will know, the different voices in the conversation about how to answer that fundamental question seem to be arguing quite different cases. However, although there are real differences to be observed there is also much that is shared in common – not least, a fundamental agreement that persons ought to be valued as ends in themselves and not simply as means to help realise the ends of others.
Accountants as professionals
It is not just philosophers and theologians who have been in the business of developing ethical systems. Various groups in society have also been active in the development of rules of conduct that are sometimes referred to as Codes of Ethics. The rules of the accounting profession represent one such attempt to codify principles that apply to a particular group of people engaged in a common activity. Before going on to look at the status of such rules, it may be useful to say something, in general, about what it means to claim the status of being considered a profession. There is a widely accepted definition from Dean Roscoe Pound that runs as follows:
The term refers to a group … pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.
Thus, a profession is distinguished by having a:
- Specialised body of knowledge
- Commitment to the social good
- Ability to regulate itself
- High social status
The point should be made that to act “in the spirit of public service” at least implies that one will seek to promote or preserve the public interest. A person who claimed to move in a spirit of public service while harming the public interest could be open to the charge of insincerity or of failing to comprehend what his or her professional commitments really amounted to in practice.
In August 1993, the Australian Council of Professions (1993, p. 1) issued a discussion paper, Professional Services, Responsibility and Competition Policy. Significantly, a press release about this paper was issued under the title, In The Public Interest. Both the paper and the release sought to distinguish a profession from “more commercially minded occupational associations”. As opposed to others, professional practitioners:
… must at all times place the responsibility for the welfare, health and safety of the community before their responsibility to the profession, to sectional or private interests, or to other members of the profession.
If the idea of a profession is to have any significance, then it must hinge on this notion that professionals make a bargain with society in which they promise conscientiously to serve the public interest – even if to do so may, at times, be at their own expense. In return, society allocates certain privileges. These might include one or more of the following:
- the right to engage in self-regulation
- the exclusive right to perform particular functions
- special status
At all times it should be remembered that what society gives, it can take away. It only accords privileges on the condition that members of the profession work to improve the common good. Having said this, there should be no doubt that all citizens are served by the existence of independent professions that are free to interpret the common good as being something other than that which a government of the day decrees. Once again, it should be noted that a capacity for a profession to fulfil this role depends on the extent to which the broader community trusts its judgement and motives.
Deciding to take up the full and proper responsibilities of a professional career is akin to the old idea of finding a vocation. In most cases, the actual rewards on offer hardly seem to cancel out the sacrifice that is made when the narrower pursuit of self-interest (common in the market) is eschewed in favour of the public interest. Instead of relying on the operation of the ‘invisible hand’, the professional must choose – and choose well! The burden of choice is sometimes felt to be intolerable. This may explain why it is that one now hears members of the profession stressing that their primary orientation is towards ‘running a business’.
Perhaps the idea of ‘vocation’ has become foreign to most of those who make up the contemporary professions. Perhaps the belief in intrinsic goods has faded. But even if one is motivated by a spirit of public service, how is one to determine what may be in the public interest? One answer, from as far back as the ancient Greeks, is to try to identify certain core ‘goods’. Some of these immediately come to mind. For example, a good society is likely to be one in which people are treated with justice, in which good health is commonplace, in which the environment is rich, rewarding and safe.
The introduction to Ethics & the Legal Profession, edited by Michael Davis and Frederick Elliston (1986, p. 18) builds on this idea:
One of the tasks of the professional is to seek the social good. It follows from this that one cannot be a professional unless one has some sense of what the social good is. Accordingly, one’s very status as a professional requires that one possess this moral truth. But it requires more, for each profession seeks the social good in a different form, according to its particular expertise: doctors seek it in the form of health; engineers in the form of safe efficient buildings; and lawyers seek it in the form of justice. Each profession must seek its own form of the social good. Without such knowledge professionals cannot perform their social roles.
As noted above, an old idea is at work here. It suggests that professionals might need to develop a particular appreciation and understanding of some defining end, such as justice. It is as much for this, and the disinterested pursuit of these ends, that the community looks to the professions for assistance.
Caring about the truth
But is there more to being an accountant than is captured by the definition of the professional? One answer suggests that beyond there being a specialised body of knowledge, there is also a particular end that helps to define the accountant’s practice. Medical practitioners have the preservation and encouragement of health as an end, lawyers have the pursuit of justice as an end. It can be argued that accountants have the presentation of truth, in a fair and accurate manner, as an end.
Naturally enough there is cross-over between the professions. No one group can be so focused as to ignore truth or justice in favour of, say, health. This is especially so when one realises that most matters involve one in engaging with a complex web of values. It should also be conceded that to talk of the ‘presentation of truth’ as being an important end of accounting may be to run the risk of ignoring other important factors.
Beyond rules
The real point to be made is that accountants, as professionals, cannot rely exclusively on their rules to define who they are and what they will do when traversing the ethical landscape. Rules are a rough and ready guide when issues are clear. But they tend to let us down whenever we are faced with a genuine ethical dilemma. To refer back to the beginning of this paper, it is in precisely such circumstances that you need to dig a little deeper. At a certain depth the challenge is to look at ethics from the point of view that demands answers to the questions “What sort of person do I want to be?” and “What sort of community do I want to help create?”.
Questions of this sort lead to contemplation about dispositions (to obey the rules, to ask difficult questions and so on). If a person’s character is being consciously expressed by what he or she does, then it becomes especially important to consider whether proposed actions represent justifiable and consistent aspirations about personal identity. Does it really make sense to do anything to get the job done? Is it really in the interests of the client to do exactly what he or she wants?
One is forced to ask whether being a professional involves exercising judgement (and not just skill). Are professionals relied upon by society to act as ‘gatekeepers’ of sorts?
Why is it that some types of unethical behaviour appear worse than others? For example, nearly everybody would be in high dudgeon at the thought of an accountant misappropriating funds from a children’s charity. Yet, it is difficult to generate the same ire when discussing an accountant who connives in ‘creative accounting’ designed to help a small business to complete the tax return. It is interesting to ask why this should be. Perhaps the answer lies in the degree of visibility enjoyed by the ‘victim’. Or, perhaps the difference lies in the relative position of power at the disposal of the different parties.
It is, of course, impossible to give a definitive answer to this question. However, it does draw attention to a range of issues relating to our perception of our responsibilities as citizens, that is as fellow members of a community of interdependent individuals. Formal and informal sanctions may act as some sort of protection and as a check on less noble ambitions. But beyond this is the prospect of there being a positive incentive to preserve and enhance the quality of life enjoyed by society as a whole. This is to go beyond the injunction ‘do no harm’ and actually to seek to do some good by the quality of the example set for other members of the community.
The line being developed in this paper may seem to be incredibly idealistic. Perhaps it is. On the other hand, if idealism is scorned then a change in perspective may be forced on the professions by a public that has many members who are sick and tired of paying the price for the sake of those who decided it was more profitable to be a ‘gun for hire’ than a ‘gatekeeper’.
The paradox of the response from business
One thing that must be borne in mind is that the conditions outlined above apply across the board. Every group in society has an opportunity to relieve themselves of responsibility for their own actions. A grudging reliance on government regulation can lead to a de facto abrogation of responsibility. In a similar way, reliance on professional advice allows for an opportunity to deflect criticism, blame and the penalty of sanctions. Some may regard this as a cynical suggestion, but it may be that business seeks further to insulate its sense of responsibility by taking cover under the cloak of the professions.
By relying on professional advice and services, any business seen to transgress the community’s mandate has the option of trying to shrug off the onus of responsibility by pointing to the government of the day’s failure to define (in adequate terms) the limit of the law, or to the experts who, having been consulted, approved, and even facilitated, the ill-regarded course of action.
This places the professional in an invidious position. It is often the case that the client will indicate a preferred course of action in the most general of terms and then ask, “Can this be done and if so, then how?”. Such a client rarely asks, “Ought this be done?”. In many situations, this reduces the professional to the status of a ‘hired gun’.
But, could it be that many people in business are actually looking for someone to point out the limitations inherent in a proposed course of action. The situation may be likened to the activities of a diabetic who is cursed with a sweet tooth. The last thing that such a person needs is a doctor who agrees to provide the opportunity and means for the consumption of vast amounts of chocolate. Chocolate may be what the patient wants, but it may not always be what the patient needs. Indeed, there may even be times when such a patient would welcome the intervention of a doctor who is prepared to advise against a course of action and then refuse to assist in its commission.
This is purely a matter of speculation. However, is it possible that business may look to members of the professions to take a broader view of what may be in the client’s interest? Following on from this, it may be that business expects the professions to act as a buffer against which they can drive their plans and ambitions. The fact that it is possible to do something doesn’t mean that it ought to be done. In the aftermath of the 1980s, there is probably some people in business who continue to appreciate the fact that someone had the moral courage to dissuade them from a reckless course of action.
Then again, there are those who will pursue a course of action irrespective of the harm that it might cause to others, or even themselves. Having made up their minds, they go for it. As things stand at the moment, a client who is bent upon a course of action can always shop around to find an accountant who is prepared to do what is deemed to be necessary. The temptation to capitulate and lower standards in order to maintain business must be very hard to resist. But if the profession has a sufficiently strong code of ethics that has been internalised by its members, then it may be that certain types of actions (which would not otherwise be possible without the assistance of a member of the profession) will not be performed. And it may be that the frustrated client may even be secretly pleased that an unwanted passion has been thwarted by another who can take the responsibility and hence the blame.
The power of a question
There are many factors that motivate people: natural dispositions to do what is right, the binding standards of the profession or, indirectly, the flow of sentiment arising from public pressure. Whatever the stimulus, there is evidence that change requires nothing more than a capacity and willingness in people to ask quite simple questions about the rightness of any proposed course of action.
It is this sense of awareness that ethical questions can and ought to be asked whenever we have a choice that really helps to define an approach that, in part, constitutes the role of the professional. To ask questions is not to seek to impose an answer on clients or colleagues. It is to seek to add a new dimension of significance to the decision-making process.
Conclusion
Accountants have the capacity and the opportunity to look below the surface of this complex society. I am sure that some have taken the opportunity to plumb the depths! Others are more attuned to the light. Whatever the case, members of the accounting profession have an opportunity to go beyond the provision of merely technical advice. Being a member of the accounting profession and, therefore, one of the ‘gatekeepers’ of our society, the accountant can stop to ask clients to consider whether what they want, at any point in time, is in fact what they might choose if they took a broader view of their own self-interest (including that of their community).
In considering such matters, can you be sure that your practice is a proper expression of the role of the professional, which necessarily involves a regard for the wellbeing of others in the community. In the same vein, try to imagine whether or not your actions would stand up to the ‘sunlight test’ of public scrutiny. The motto of the Society is ‘integrity’. Placed on a letterhead or a shield it is just a word, a series of printed letters. The word ‘integrity’ only gains life and meaning when it is applied to a person. That which is attained only after the passage of time and testing, can be lost in a moment of disregard. Your profession’s disciplinary committee can apply many sanctions but none as harsh and as potentially harmful as the loss of one’s good name.
To be a member of a profession is to be a member of a community. Ethical issues are not restricted to matters arising in relationships with clients and the community. There is also the very real question of how accountants relate to one another. This goes beyond being a matter of professional etiquette. Whilst matters of etiquette are important as an indication of mutual respect between members of a profession, there is a need to be aware of deeper obligations to one’s colleagues. In particular, members of the profession have a responsibility to provide mutual support and encouragement so that it becomes absolutely unquestioned and natural for accountants to present the truth in a fair and honest fashion and in a spirit of public service. In such circumstances clients would probably think twice before seeking creative accounting solutions to particular problems. Some of the hesitation would be due to the fact that the days of shopping around for a compliant practitioner would be largely over. One would also hope that those accountants operating in business would find a greater acceptance of their role as professionals capable of providing considered advice that goes beyond matters of simple expedience.
Being consciously ethical in one’s outlook, keeping one’s eyes open and mind engaged on such matters is a taxing and frequently thankless task. Very few people openly appreciate being made to think about value questions when under pressure to get the job done. This remains so despite the fact that ethical blindness is a lot like colour blindness. In both cases, defective vision can lead to accidents where injury to innocent third parties could have been avoided if warning signs had been seen and read. As young accountants, you are the inheritors of a tradition in which people have been prepared to point out the warning signs, even when the driver has been unwilling to look up from the road – or, for that matter, without thanks from the pedestrian on the crossing. In the past, some have felt able to betray that tradition. Whether or not it can be preserved will depend on the kinds of decisions that individuals make when trying to answer that fundamental practical question, “What ought one do?”.
To return to the question of the ethical dilemma. It is perhaps an unfortunate fact of life for us that there really are circumstances in which no system of rules can provide us with a sure and uncontroversial answer. On the other hand, it may be that the existence of ethical dilemmas provides us with two great boons; an opportunity to exercise our freedom and sense of personal responsibility and also to engage with others in exploring and developing traditions that provide guidance to communities.
References/footnotes:
Australian Council of Professions, (1993) Professional Services, Responsibility and Competition Policy: a discussion paper prepared for the Permanent Advisory Committee, August 1993
Davis, M & Elliston, FA (Eds) (1986), Ethics & the Legal Profession, New York, Prometheus Books
Pound, R (1986) quoted in American Bar Association Commission on Professionalism, (1966), In the Spirit of Public Service: a blueprint for the rekindling of lawyer professionalism, American Bar Association
Dr Simon Longstaff AO is Executive Director of The Ethics Centre.
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”