Justice Outsourced

What do I think of the shenanigans at AMP as reported here you ask?

I don’t know.

Do I think the initial punishment was sufficient, or should they all lose their positions as is happening now?

I don’t know.  I really don’t know if the Board acted appropriately during the course of the investigation into the case of sexual harassment or what the punishment should be.

But before we talk about that, can we talk about something else?

I wanna talk about what happened at the Wanderers a few years ago.  You know, when the RBB held up the banners containing images offensive to some – an image of a penis and the head of a man – and as a result many members of the RBB were banned from the game for years, and the club was sanctioned by the FFA.

At a later match, another member of the RBB was banned, was it for life, for wearing a T-shirt at a game that had emblazoned across the front “F#@$ the FFA”.  That was enough for an attendee at a match to be banned for life.  The man’s T-shirt a protest against the action of the FFA who had deliberately placed microphones in front of the RBB in order to be able to pick up the use of offensive language in the crowd.

Then, at the end of the season the main sponsor of the Wanderers, the NRMA, walked out, declaring they were sick and tired of the behaviour of the active supporters of the Wanderers and did not want to be associated with them.

What has this got to do with AMP?  Stay with me, we’ll get there eventually.

The NRMA had already announced sponsorship of the Brisbane Broncos for their next season.  So, you say, maybe there was more to the NRMA decision than just the behaviour of the Wanderer’s supporters, and maybe there was, but if so then why specifically mention that point when announcing the decision.

But here’s the rub; does anyone remember Matt Lodge?

Matt Lodge, you remember, was the rugby league player who was charged with viscously assaulting several people in New York, in the one incident, during which he threatened the life of a young lady, as reported here.

Matt Lodge joined the Broncos the year the NRMA started their sponsorship, and the NRMA were OK with that, saying something like, ‘well, he’s apologised, and said he won’t do it again’.

Was Matt Lodge banned for life?  Er, no.  I’ve had people explain to me that he wasn’t banned because his actions didn’t take place at a game.  Oh, OK then, that makes sense ….

Let me just summarise where we are at with this.  The NRMA ended their sponsorship of the Wanderers because members of the crowd, who are not paid employees of the club, held up a banner displaying a penis and at other matches swore a lot.  The same NRMA then sponsored a club who had on their player roster, which means NRMA are paying that player, a person who immediately prior to joining the club was charged with a violent assault.

My issue is this – I am growing increasingly uncomfortable with the idea that the senior management and Boards of companies believe that they are in a position to pass judgement on the behaviour of the rest of us, not only because (for it’s own reasons, because it is arrogant to do so), but especially considering the continuing poor behaviour of themselves.

Would you feel comfortable with the Board of the NRMA sitting in judgement on your behaviour, given they shied away from crass images and crude language, but felt comfortable with violence?

Let me extend the question; I’ll ask you to nominate a single company in the ASX100, the Board of which, you feel comfortable allowing to sit in judgment on our behaviour.

Name one!

I’m not suggesting you and I are perfect, or that every Board member is a rogue.  The people who make up the Boards of the company’s in the ASX100 are our society’s best and brightest, they have each had distinguished careers and in most cases would have held significant positions in various companies.  And yet, when they sit down in small groups and make decisions they seem to mess it up.

Name a single large Australian company, the Board of which is untainted by scandal.  The banks!  Would you allow the Board of any of our major banks to sit in judgement on our behaviour?  What about Rio Tinto?  You get my drift.

Those who remember the Sydney Morning Herald in it’s glory days will remember that the Sport pages were on the back of the section fronted by the Business pages, so it makes perfect sense to flip between the two.  So before we talk about AMP, let’s talk soccer again, and to illuminate our way, let’s light a flare, or two, that should help us see things clearly.

One of the major gripes that the supporters of the A-League had with the FFA was the lack of a right of appeal to it’s punishments.  A few years before the banner incident a number of flares were lit before a game against Melbourne Victory and then during the game as well.

Many of the people involved were banned, and in a nod to Kafka’s The Trial the FFA also placed bans on some people who were not involved, having not even travelled to Melbourne for the game.  Those who had been banned incorrectly appealed to the FFA, who wouldn’t hear their appeals, partly because they had no mechanism to do so.  The active supporter groups across all clubs protested for over a year before the FFA took action; the protests themselves resulting in further bans that were then appealed.

The FFA when setting up it’s disciplinary system saw no reason to include a right of appeal – the existence of which forms the basis of any civil democratic system of justice.  The FFA had to be dragged, literally kicking and screaming, into the 19th century.

What has this got to do with the sexual harassment case at AMP?  You need to step back a bit to see the bigger picture.

My next question to you is this; when did we all agree to outsource our justice system?  When did we allow private companies to operate their own justice systems separate from and a shadow of the public justice system that has been built up over centuries, the basis of which we all get to have a say in through the representatives we elect to a decision making body we call the parliament?

Why am I now subject to the capricious, inconsistent, haphazard, ad-hoc workings of multiple justice systems, each with their own laws interpreting the same behaviour in different ways and each offering me different levels of protection as either a victim or an accused?

Now we can talk about what happened at AMP.  A young lady is unnecessarily asked to fly half way round the world to attend a meeting so a person higher up the food chain, I am reluctant to say ‘her superior’, can prey on her, she takes umbrage at all of this and raises a complaint, he is disciplined – to an extent, and then subsequently promoted, and when it all becomes public a major shareholder demands the chair of the Board resign, which he does.

The mind explodes with questions.  Why was the initial punishment insufficient?  If he hadn’t been subsequently promoted would the Chair have kept his job?  Can someone who has harassed someone never be promoted, or if they can, what is the appropriate time lag?  What if the accused had left AMP to take a larger role in a different organisation and therefore no opportunity to increase his punishment – is that OK?  How does his punishment compare to others in the same situation but at different organisations?  Do the victims now need to approve the punishment for the punishment to be considered sufficient?

To the explosion of questions above, I say, we have answered these already within our society, and the answers are contained within the workings of our justice system.

In each situation where the justice has been outsourced there is a fundamental conflict of interest that prevents any possibility of justice, in it’s broad sense, from being done.  The learnings from the truisms behind the quotes that have become throwaway lines such as, ‘power corrupts’, and ‘justice must not only be done, it must be seen to be done’, have indeed been thrown away, at our cost.

To your question, what do I think about what’s happened at AMP, I answer – it should never have been down to the Board or management of AMP to determine the outcome.

If your response is, but this type of behaviour isn’t covered well enough by our laws, then my reply is simple – change our laws.  That is what our entire system of government is there to do.  At it’s most fundamental, the role of parliament is to decide the laws that the rest of us agree to live by.  If there is no such law that covers what happened at AMP, then create one.

When laws are made and administered via the apparatus of our democratic institutions we all receive the full benefit of the centuries of thought that are embedded within that apparatus.

If you then cry out that the wheels of change turn too slowly and that it takes too long for the law to acknowledge the various wrongs that exist, then you are a radical, I’ll greet you as a comrade and then counsel you on the benefits of not having everyone’s whims turned immediately into binding laws.

Or, if instead you cry out that we do not want to live in a society where every action is encoded into law, such as the hurt done when holding up an image of man’s face next to an image of a penis, then I too will agree with you.

What we have done, either deliberately or inadvertently, is to allow a large proportion of our lives to be covered by a collection of private justice systems.  If I am walking through an enclosed shopping centre and do wrong, or sitting at a sports match and do wrong, or attending a concert and do wrong, or sitting at work and do wrong, I am covered not only by the public justice system but also by the justice system of the shopping centre owner, the sporting club, the music promoter and by my employer.

Apart from the existence in each case of a conflict of interest there is also sitting behind the judicial body in each of those scenarios not a legally trained impartial magistrate, but - the mob.  We are now beholden to the mob.  And the mob, as always, wants blood.  And social media ensures there is always a mob, so the blood must flow continuously.

What we see now is the mob doesn’t just go after the perpetrator, sometimes not even bothering with the perpetrator, they go after the body that sat in judgment, in this case the Board of AMP.  In the case of AMP, the blow delivered was not related to who held the blame for the crime, but what would be sufficient to appease the mob, as the Chair was asked to resign and agreed to in order to protect others and to allow continuity in the management of the organisation, regardless of whether that management held a greater share of the blame for the original crime and it’s adjudication.

Did you cheer the actions of the CEO of Allan Gray, the company that is a large shareholder of AMP, who as the head of the mob, used his power to force action from AMP?  What were you cheering really?  Has that person provided a publicly available analysis of his decision, such as a magistrate or judge is required to do, where he outlined his reasoning and provided comparisons to equivalent cases?  Can you have confidence that he would, or has, acted in a similar fashion in all such cases, or just those that garner the most headlines?  What recourse would you have if he used his power against you?  How can you be certain that his prime reason for acting was to seek justice for sexual harassment, rather than expediently using the situation to take control of the Board?

Forgive me for not cheering quite so loudly as you.  I thought we had moved away from justice being dispensed by the man with the most money.  If he really thought an injustice had been done, then why not bring it to the attention of the relevant authority, and allow them to take action; too slow for you, then try stitching a head back on after you have prematurely hung someone.

My point is that sexual harassment is serious and we should not feel comfortable with it being dealt with by business managers within an organisation who have an inherent interest in the claims not being heard, or relying on the whims of particular shareholders who sniff the breeze and decide what action must be taken.  What if the same shareholder thought that the media storm could be ignored?

The reaction to the initial punishment for the sexual harassment case may indicate to you a shift in mood in relation to such behaviour, but to me they indicate the paucity of debate about how indeed we should treat such matters.

The instability within AMP as it dealt with a case of sexual harassment, and the flighty reaction of the FFA in banning vocal supporters, are both a failure of our system of government.  Neither of these cases should have been heard by the bodies that metered out the punishment.

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After writing this piece, but before posting it, another example of egregious behaviour by a senior executive became known, and in this case the Chair applied greater punishment as reported in this piece in the Herald.  And if I may, an aside, remember my comments earlier that it is just such senior executives who pass judgement on the rest of us.

There will be many who will cheer the outcome, the executive departing and in doing so leaving behind a potential $10m in stock incentives, and there will be some who will say that the punishment did not fit the crime.

The point I am making supports neither of these positions but instead asks – how can you have faith in a privatised legal system.  As this article highlights – no information relating to the event is publicly available.

These are the telling quotes from the article

“Without knowing the detail it certainly looks like Wilkins has exercised proper judgement and dealt with the situation appropriately.”

Without the detail how can you form any opinion on whether proper judgement was exercised, and on what basis are you assessing that the situation was dealt with appropriately?  Appropriate in relation to what? In our public legal system there are for every crime guidelines for magistrates to follow when sentencing, and those guidelines are developed through informed debate by people expert in the field.

And,

“So those shareholders that would have liked more detail need to be content with the chairman's decision.”

No!  This is not simply a matter for shareholders.  What if this was not a publicly listed company but owned by a small number of … men, and the Chair arrived at a very different position, would Elizabeth Knight still be content to just live with the decision made by the Chair?   Because the result seemingly goes in favour of Elizabeth’s views she is therefore supportive of the process.