It’s not easy to get inside the mind of a High Court judge, but when Justice Gummow used the word “Orwellian” last week in the latest instalment of ASIC v Andrew Forrest a bell tinkled in my mind.
The bell rang louder less than a day later when Forrest, the major shareholder in Fortescue Metals Group, was one of the rich Australians on the receiving of a strong verbal attack from the Australian Treasurer, Wayne Swan.
And it was sounding like a fire alarm the next day later when the government unveiled plans for a new media regulation authority that would “set and govern” journalistic standards.
Joining the dots which connect ASIC, Forrest, Swan, Gummow and the proposed News Media Council is not easy, and certainly risky.
But, it’s worth a shot because the link is one of private citizens v government, and that’s something everyone, not just people in business, should take seriously.
In the case of Forrest/FMG v ASIC (Australia’s corporate regulator) I have always suspected that the government officials who run ASIC read far more into what happened, and arrived at the worst possible conclusion – that Forrest was deliberately misleading investors when he announced a “binding” deal with Chinese companies, a deal which subsequently fell apart.
Anyone who has ever run a business knows that a deal which looks good on Monday can fall apart on Tuesday because of events beyond your control or because you cannot see inside the mind of the people on the other side.
That, in a nutshell is what happened to Forrest who, if he was guilty of anything it was excess zeal, and a desire to build the business he had founded. He was, in effect, guilty of saying too much, too soon, only to watch his Chinese “partner” renege on the deal.
Guilty of excess enthusiasm, yes. Guilty of a “large-scale conspiracy of a villainous kind”, as Forrest’s lawyer, Allan Myers QC, proposed as a theory in the High Court last week, no.
It was after Myers gave that colourful description that Justice Gummow said the allegation against Forrest was “getting into the territory of a sham.”
“It is a bit Orwellian really,” Gummow said.
Precisely what the judge meant is not clear and we are yet to hear the High Court’s verdict in the case, and since the judges are unlikely to be swayed by what’s written here it’s worth exploring that meaning of the adjective Orwellian which include this definition from the Macmillan Dictionary: “relating to a political system in which the government controls every aspect of people’s lives”.
Or Wikipedia’s version: “It connotes an attitude and a policy of control by propaganda, surveillance, misinformation, denial of truth and manipulation of the past”.
Swan’s attack on Forrest, and other mining entrepreneurs such as Gina Rinehart and Clive Palmer, was also in the Orwellian category because he based it on a belief that they were: “undermining good public policy and democracy”.
They’re not, and while the rich can defend themselves it needs to be said that what they were really doing is attacking what they regard as bad public policy, and that their stand against government is actually part of a robust democracy.
Whether anyone agrees with what Forrest, Rinehart and Palmer say is irrelevant because they have a right to say it, even if Swan thinks they’re wrong – and, in fact, even if everyone else in Australia thinks they’re wrong.
The final dot to be joined is the proposed News Media Council, a government agency which would have the power to enforce standards on the media – a job which begs a simple question: “whose standards”.
Would, for example, a television station, internet site, or newspaper, which ran a virulent campaign against the mining tax because it was controlled by Forrest, Rinehart or Palmer be guilty of breaching the rules of the News Media Council?
Could Swan, or another government minister refer that media outlet to the new council because of perceived bias against the government?
Would bias itself become a crime?
Would the officers in charge at the new council be recruited from ASIC to complete this Orwellian circle?
With a collective worth of more than $30 billion the three billionaires have the money and power to say and do what they like, and there are many things they do say which I find repellent.
But, if the rich are to be cowed by government attacks are we not indeed slipping into an Orwellian world, and after the rich have been cowed who’s next?
