Shock! Horror! Latham lies!

The patent absurdity of Labor’s “27 Howard lies” document is underlined by a lie told by Mark Latham, reported in today’s SMH, about the basis and effect of Thursday’s High Court decision in Electrolux Home Products Pty Ltd v Australian Workers’ Union (which I blogged about here):

The Labor leader, Mark Latham, has responded cautiously to a High Court decision stopping unions charging non-union workers a fee for negotiated pay increases, saying early advice suggested it could not be overturned by legislation.

Mr Latham said the ruling by the High Court – which also effectively prevents unions from taking strike action in support of political, social and environmental causes – was complicated and based, at least in part, on an interpretation of the constitution.

“If that’s the case then no one can roll back any of that,” he told ABC radio in Adelaide.

“That is the end of the matter, full stop, end of the matter. The High Court decision would be respected, as it should be, given that what appears to be that interpretation of the Australian constitution. And if that’s the case, government legislation is not a relevant consideration.”

Not to put too fine a point on it, this is complete bullshit. McHugh J expressly disavows any constitutional basis for the decision (paragraphs 75-77), while the other majority Justices just don’t discuss the Constitution at all. The majority reasoning in Electrolux is entirely based on ordinary statutory interpretation and has nothing to do with the Constitution. Its effect could easily be reversed by legislation if Latham wanted to do so. No competent lawyer (and arguably no ordinarily literate person) who’d read the decision could possibly advise otherwise.

Of course, the reality is that Latham is caught between a rock and a hard place. He can’t afford to antagonise his union support base by refusing pointblank to intervene, but he also can’t afford to give in to union demands to legislatively override the decision and allow compulsory deduction of union agents’ bargaining fees, because that would antagonise not only employers but the 77% of Australian workers who aren’t union members. So the answer is to lie outright, but to leave himself an escape clause by using weasel words like “if that’s the case“.

Frankly, I don’t blame Latham for lying in this situation. He’d be a fool to do anything else in the circumstances. That’s one reason why I think sweeping generalisations about when it is and isn’t proper for politicians to lie are inherently problematic. It’s also one of the reasons why I thought Margo Kingston’s claim that George Brandis’ credibility had been “shattered” by the “lying rodent” affair was so absurdly hyperbolic as to merit the label “fucktard”. Apart from the fact that the evidence of Russell Galt is hardly conclusive given his background and evident malicious agenda, even if Brandis did lie my immediate reaction is “so what?“. He’s well known as a Costello supporter and Howard opponent, so it’s hardly surprising that he might have negative opinions of Howard, or that he might express them to Liberal insiders in unguarded moments. And it’s equally unsurprising that he would deny it when one of those Liberal insiders ratted and went public. Like Latham’s Electrolux lie, he’d be a fool to do anything else. His credibility is no more shattered than is Mark Latham’s. They’re both simply engaging in the sort of expedient lying that is a working politician’s everyday lot. Politics isn’t a profession for saints.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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John quiggin
John quiggin
2022 years ago

This seems like quite a stretch to me, Ken, especially when compared to the criteria you are applying to Latham here.

It is disingenuous to say that “The majority reasoning in Electrolux is entirely based on ordinary statutory interpretation and has nothing to do with the Constitution”, with no further elaboration, when, as you yourself pointed out in earlier comments, the minority judgements did raise Constitutional issues (presumably this is why McHugh rejected them).

I agree that, if you work through it carefully, the implication ought to be that the majority verdict could be overturned by statutory amendment, but it also seems fair to say that Latham’s reading of a briefing could leave him with the opposite impression.

As regards Brandis, I think you’re now hopelessly entangled in contradictions. Just as its routine for politicians to lie, it’s routine, when they are caught, for their opponents to say things like “his credibility is shattered”. Your own response to Kingston is every bit as hyperbolic as hers to Brandis and with less justification.

Robert
2022 years ago

A lie? Probably just that Latham didn’t read the judgment and was mistaken about its effect.

Ken Parish
Ken Parish
2022 years ago

John

McHugh and Kirby both expressly denied that there was a constitutional aspect to the case. The other Justices didn’t mention it at all. It’s not possible to misread the decision in the way Latham claims he was advised. And that’s the point, Robert. Latham claims he was ADVISED that this was what the decision held. He’s lying, and for the reasons I said. If he hadn’t read the decision and hadn’t been told what it said, he could have simply said he hadn’t caught up with it yet and couldn’t possibly comment.

And as far as Margo Kingston is concerned, she’s still supposed to be a journalist rather than an “opponent”, and you’d expect her to make some attempt at detached analysis not just shrill partisan propaganda. I would be equally dismissive of a blogger who was incapable of any sort of rational perspective on such a situation. I’d expect Latham to claim Brandis was “shattered”, but he’s a politician.

John quiggin
John quiggin
2022 years ago

Well, Ken, I’m not a lawyer, but I am literate. As you can see from my first comment, I read your summary of Kirby as saying there were constitutional issues.

Ken Parish
Ken Parish
2022 years ago

John

You say you formed an impression about the Electrolux decision on the basis of a comment of mine. You certainly didn’t form it from my primary post, which is where I summarised the decision and made no mention of constitutional issues. The comment you’re trying to rest your Latham defence on was (a) keyed in haste; (b) responding to a specific point of yours rather than trying to convey the basis of the decision; and (c) dealt only with Kirby, who was in a minority of one. Hardly a sensible basis on which to form a view on what the case was about. You’re not saying that you formed that view on the basis of reading the decision itself, nor could any intelligent literate person do so.

Latham says he was advised about the basis of the decision. If he was (unless that person was an ignoramus), then he’s lying about what he was advised. If he wasn’t, then he’s lying about the fact of being advised. Either way, he lied. But neither is a significant lie in the scheme of things. Are you denying that Latham ever lies? And my points were (a) that Brandis’s lie (if indeed it was one) was just as insignificant as Latham’s and provided no sensible basis for Margo to claim his credibility was “shattered”; and (b) both lies were in a similar everyday non-drastic category as most of the ALP’s list of “Howard’s 27 lies”.

Scott Wickstein
2022 years ago

Credibility is a subjective value anyway. I get the impression that anyone that has a remotely pro-Liberal or anti- ALP view has zero credibility with Margo anyway. And the reverse for, say, some of the RWDB crowd.

Ideally, public policy should be discussed in slightly more intelligent terms, but as any Crikey.com.au reader would be aware, the public debate in Australia is run by morons. Both in Parliament and the Media.

mark
2022 years ago

Only “some” of the RWDBs, Scott? I’d say it’s part of the qualification that they don’t credit anyone even remotely left-wing…

But I’m with Rob on this ‘un, Ken. The HC hands down a judgment, one’s first thought is “oh, it’s the Constitution!” It’s entirely possible that Latham got from the media that “I shouldn’t like this”, and embellished a bit on seeing the source “oh, it’s the Constitution!”. That’s a Bad Thing, but not nearly so bad as Howard’s attempts to free our minds from the shackles of reality (without recourse to drugs).

Now, if he’d *read* the judgment (or been told by, say, Mike Scrafton, that he was wrong about it), and *still* come up with the quoted words, there might be a case for comparison.

Ken Parish
Ken Parish
2022 years ago

Mark

You’ve misinterpreted the discussion. I’m not seeking to exculpate Howard here. His “children overboard” lie is in a different and much more serious category, as I’ve been saying all along. Not only was it much more central to the election outcome in 2001, but more importantly it involved demonising desperate people fleeing torture and oppression; misleading the Australian people about those desperate people (characterising them as people with a selfish, callous disregard for their children who were unacceptable as Australian migrants); and dividing Australians by fuelling and exploiting our most base fears and hatreds for immediate electoral gain. It was contemptible, inexcusable political behaviour of the worst kind, and merits the most severe electoral punishment now that the dimensions of the deception and abuse of the trust of the Australian public are known.

My comparison was simply between Latham’s lie (and it WAS a lie for reasons I’ve explained, however some may try to spin it) and George Brandis’s one (“I did not call that lying rodent a lying rodent”). Both these lies are common-or-garden everyday political lies, as were most of the ALP “27 Howard lies” list. Labor didn’t do itself any favours IMO, and blunted the force of its indictment of Howard on “children overboard” by bringing in these additional “charges”. It plays into the hands of the Colaition “so what? All politicians lie” defence.

The contrary argument, of course, is that the Coaltion was also defending Howard by saying “so what? It all happened three years ago, and we were tough on border control anyway, which is far more important, so let’s just move on and stop living in the past”. Labor sought to counter that defence by widening the indictment to paint Howard as a congenital and ongoing liar. I tend to think that was a mistake. They should simply have moved on to the next phase of their campaign; they had gotten as much mileage out of the “lying rodent” phase as they were going to achieve, and it could (and no doubt will) be reinforced by attack advertising in due course.

The Galt/Brandis circus is in a slightly different category, in that the ALP didn’t orchestrate it in the first place (as far as I know) and, whether it involved lying or not, it certainly does expose disunity within the Coalition. The incident should have been exploited on that basis rather than the lying aspect. So Margo’s “spin” was lacking in perspective or any form of rational analysis to the extent that she was acting as a journalist, and tactically stupid to the extent she was acting as an “opponent” (i.e. a shill for the ALP).

John
John
2022 years ago

Ken, I’ve never bothered to check (or link to) the 27 lies, and I’ll take your word for it that some of them are mild fudges like this one (assuming, for the sake of argument, that Latham’s advice made it clear the constitutional issues were nonstarters). But Howard has told some real doozies, about serious issues.

It’s true that everybody lies. But it’s not true that everybody is equally dishonest.

Ken Parish
Ken Parish
2022 years ago

John

Quite a few of the 27 lies were actually broken promises rather than lies. Others were common-or-garden lies, not ones in the more serious category which undermine the integrity of the entire political system. The broken promises may well have merited a separate list/advertisement, but of course that invites a retaliatory list of promises broken by previous ALP administrations. Hence, no doubt, the attempt to fudge and characterise them as “lies”. I’m not suggesting the ALP’s campaign was immoral in this regard (because no doubt the Coalition will be, and already is, mischaracterising Keating’s record in an equally dodgy way), just a tactical misjudgement.

John quiggin
John quiggin
2022 years ago

Of course Labor is vulnerable here, on all counts, though the prevalence of lying has been increasing steadily over time since the 1970s.

As regards broken promises, I’d distinguish between failed aspirations “no child will live in poverty” or “there will never be $100 000 degrees” and governments reneging on their word, as in the post-election promise dump 1996. The latter really are lies and, while Labor did something similar in 1983, Howard was far worse – hence the invention of “core promises”.

Ken Parish
Ken Parish
2022 years ago

John

I agree, but that sort of relative argument is difficult if not impossible to sell to disengaged swinging voters. That’s why I remain to be convinced that the “Howard is a lying rodent” theme is a big vote changer. I’m not saying it should be totally abandoned; reinforcing it with some high impact attack ads would be a good idea, as long as it’s not the dominant campaign theme. But otherwise I think it’s time to move on to positive policies and attacking other aspects of Howard’s record (especially on education and health).

David Tiley
2022 years ago

Sure we have to move on, but mockery is a powerful political weapon in this tall poppy culture. So the rodent is a useful background meme, popping up, whiffling its whiskers and moving on. Particularly if it is attached week by week to different lies.

The 27 lies is silly. Four or five doozies is enough; one of which is the grotesque libel that the ALP will attack interest rates which has all the intellectual decency of reds under the bed.

mark
2022 years ago

Fair enough, Ken.

(I also didn’t pay proper attention to your reply to Rob, and was mistaken about its effect…)

Jeremy
2022 years ago

I don’t think the Latham “lie” and the Brandis lie are comparable at all.

The first wasn’t a lie, it was a mistake, and a perfectly understandable one given that Latham was running a campaign and almost certainly hadn’t had a chance to read the Electrolux judgment in fine detail.

There’s no doubt that Brandis KNEW that what he was saying was a lie, and said it anyway. His denial does damage his credibility, because he’s made the decision to lie.

That’s why Howard was getting away with making a “mistake” on children overboard until it became obvious that he had been TOLD it wasn’t true and then said it anyway. That’s a lie – saying something you know isn’t true.

A mistake isn’t a lie. It’s a reason to doubt the person’s competency, perhaps – although I’d still say it’s more serious for the PM not to know what’s going on before making harsh pronouncements like the “children overboard comments” than it is for Latham to not know the finer details of a High Court judgment off the cuff.

In essense, Latham’s made a mistake. Howard’s made many. Latham has NOT actually lied; it’s obvious both Brandis and Howard have.

yobbo
2022 years ago

Let me be the first to say that I’m positively shocked by Jeremy’s position here.

Martin Pike
2022 years ago

As this is a legal post, Ken I think you should explain to readers in lay terms how if Latham brought a defo action against you, and you couldn’t *prove* that he lied- that is that he KNEW what he said was incorrect, as opposed to formed a mistaken understanding of what the decision was based on- then you would be up the creek without so much as a poo stained finger to paddle with?

Respectfully I must suggest you’ve been a bit silly and knee jerk here…

Ken Parish
Ken Parish
2022 years ago

Martin

Nonsense. Latham claimed he’d been “advised” of what the decision said. The only way that can be true is if he was “advised” by someone who either hadn’t read the case themselves or who lacked even the most basic ability to understand what the Justices wrote. My post and comments explained that, and therefore would well and truly be defendable as fair comment or under Lange qualified privilege. You’re talking arrant nonsense, as are all the other lefties who’ve attempted to defend Latham by applying blatant double standards in bliding contrast to the ones they used against Brandis only a few days ago. It’s frankly pathetic.

Martin Pike
2022 years ago

I disagree, and think you are showing both your sensitive side but also your weakness at defamation law, which I assume you don’t teach.

You actually said:
“No competent lawyer (and arguably no ordinarily literate person) who’d read the decision could possibly advise otherwise.”

You didn’t say:
“The only way that can be true is if he was “advised”

You then explicitly said he LIED on 6 occasions.

You’d be nailed to the wall, and you wouldn’t get a lange defence, not a man with your legal background who’d be seen to be misrepresenting the difference between legal interpretation and statements of fact.

Ken Parish
Ken Parish
2022 years ago

Martin

My most succinct statement of the overall mischief in what Latham said was “Latham says he was advised about the basis of the decision. If he was (unless that person was an ignoramus), then he’s lying about what he was advised. If he wasn’t, then he’s lying about the fact of being advised. Either way, he lied.”

That encapsulates the point you made and my response to it. End of story. A blog post is a composite work that must be examined in its totality, including an evolving comment thread. Where an initial “shoot from the hip” post leaves readers with an unclear or misleading impression, readers ask questions and the author clarifies or corrects any initial error or lack of clarity. That’s what happened here. It’s this evolving nature of the genre which makes it reasonably safe (touch wood) from defamation action, as long as you’re willing to admit errors and correct them promptly.

I’m entirely comfortable about standing by my statements, as qualified by the quote immediately above. To the extent that they’re opinion, it’s fair comment and to the extent that they’re statements of fact those statements are true/justified (as qualified above). You don’t even need Lange.

mark
2022 years ago

Calm down, Martin.

I did agree with you, until re-reading the first quoted paragraph above. Here we go (emphasis mine):
The Labor leader, Mark Latham, has responded cautiously to a High Court decision stopping unions charging non-union workers a fee for negotiated pay increases, saying early advice suggested it could not be overturned by legislation.
Latham did say he was advised, and as Ken said (although I wasn’t paying enough attention to realise it at first) this raises three possibilities:
He was not advised, and said it just to give himself an out (much like “if it’s the case”). This is pretty clearly lying.He was advised, didn’t like the advice, and lied about what it had said. This is what Howard did too over “children overboard”, as you’ll recall — not just lying, but dragging his advisers into the mud too.He was advised, but was advised by an incompetent who either read the judgment and didn’t understand it, or who didn’t read it and felt qualified to offer advice instead. This option is pretty far-fetched in my opinion.
Gawd, I feel like Jack Strocchi.

Martin Pike
2022 years ago

Calm down? CALM DOWN??

Hey, no, I’m not frothing over this one. I meant to have a friendly jab at our moderator and he went a bit personal on me.

As to the two entries above, I believe Mark fully captures the options, and it is Ken not giving enough weight to the third possibility that would be his undoing.

Regrettably, I think the third possibility, that someone has given him some off-the-cuff advice without reading the J-ment properly, is quite a good one. And if he produced such a person, who gave watertight testimony that yes they’d popped out such an advice, then he’d cane the case of Bark v Parish in Court.

I acknowledge it is possible explanation 1 or 2 is right, I merely argue that asserting so conclusively crosses the line.

Anyway, we’ve lost all but the legal anoraks with this one! Have a good night guys…

Tim Lambert
2022 years ago

Mark, you left out a possibility.
4. Latham was advised, but misunderstood the advice.

Ken Parish
Ken Parish
2022 years ago

Tim

Yes, that is indeed the fourth and final logical possibility, but just as unlikely as possibility 3 IMO.

Martin Pike
2022 years ago

Wait! It’s also possible he was given the advice but in a 50 second mobile phone call…