The language of power and persuasion

Julian Burnside, barrister, activist and writer, 20 March 2010

He had just had a conversation with a lawyer.

JOHN HARMS: What about the writing of legislation then?

JULIAN BURNSIDE: Shocking. Terrible.

JOHN HARMS: Really?

JULIAN BURNSIDE: More grotesque tortures of language are committed over the lake here than just about anywhere else. The plain English movement has helped ameliorate it a bit. But the problem is that the process of making laws – and this includes drafting statutes or writing judgments – involves drawing lines and saying, ‘On this side of the line is one result, on that side of the line is a different result.’ Whenever you draw a line to divide the possible fate of anyone, people will try to squeeze themselves across to the side that suits them. That means that legislatures tend to be very, very precise, so the position of the line is reduced to a point of minimal doubt. And that means you have to use a lot of words, and that means that what results is impenetrably difficult to read. The quantity of legislation these days is extraordinary. In every year the Australian Parliament produces more legislation than had been produced from 1901 to about 1950. Every year that quantity is redoubled, and that’s a terrible thing. It must drive judges crazy.

JOHN HARMS: So then in your area of commercial law, how do you keep up with it as a barrister? You’ve got to be reading all the time.

JULIAN BURNSIDE: You have to read a lot. But you see, an interest in language is useful in a couple of ways if you’re doing that sort of law. One is when you’re reading a statute or reading a contract or whatever else, you have an instinctive ability to parse sentences and draw out the meaning no matter how badly mutilated the sentences are – so that’s useful. But the other thing is in the course of examination in chief or cross-examination an interest in language is quite handy. I found this especially in the ‘cash for comment’ inquiry at the ABA [Australian Broadcasting Authority now Australian Communications and Media Authority] a few years ago. It was very interesting, I had to cross-examine some quite interesting characters, including Alan Jones who is a broadcaster, and the broadcaster Alan Jones reckons himself to be quite an intelligent, educated man with an interest in language. And we had the goods on him. When Alan Jones felt himself to be under pressure, I could always tell because he started to use bigger words than normal and use them wrongly. [laughter] It was a barometer – it was fantastic – it was a barometer of how he was feeling to see how his language use went. I have to say, if language hadn’t been a strong interest of mine for a long time, I’m not sure I would have picked up on some of his slight errors.

JOHN HARMS: In professional poker, that’s called a ‘tell’.

JULIAN BURNSIDE: A tell?

JOHN HARMS: A tell is where someone indicates by the position of their eyes or how they deal with their cards or whatever in a different way when they’ve got a better hand.

JULIAN BURNSIDE: I didn’t know that. It’s interesting because the word ‘tell’ has about 20 separate meaning in the dictionary. Sue Butler will be able to correct me. I’m probably wrong by quite a bit. But ‘tell’ has a lot of…

JOHN HARMS: We’ve only got time for 18.

JULIAN BURNSIDE: I’m not going to run through them, but ‘tell’ is very interesting. There are quite a few words, especially short ones, in the English language which have a lot of different meanings. One of them that comes to mind, and this is the sort of thing that interests me for some bizarre reason, is the word ‘let’, for example. We all understand ‘let’; we use the word ‘let’ probably every day.

JOHN HARMS: Tennis, yes.

JULIAN BURNSIDE: Yes, tennis. And also passports - please allow this citizen of ours to cross your border without let or hindrance. And then there’s ‘let’ as in ‘let me do this, let me do that’. The ‘let me do this’, and the ‘let or hindrance’ or the ‘let’ in tennis are completely opposite in their meaning, because the let in tennis and the let or hindrance means ‘to obstruct or prevent’; whereas the other let means ‘to permit’. Yet we use it every day unselfconsciously without ever recognising that we can use it in either of two quite opposite tenses. It’s an extraordinary thing about English.

JOHN HARMS: What about the language that surrounds refugees in Australia? There is a specific language that has been used over the last ten years or so – describe that language and its impact.

JULIAN BURNSIDE: Well, it’s essentially been an exercise in double-speak. There are a couple of interesting divisions of language or the use of language. Double-speak is one which is obvious. Non-speak is one where Don Watson is just so marvellous a commentator. Non-speak is very offensive, and I must say it does worry me. People who use words to anaesthetise you or to deceive you, they’re the people I really get upset about. I don’t care if people misuse the language, but when they use language to mislead or anaesthetise, I want to reach for my revolver.

During the time when asylum seekers was a major issue in the country, they were called ‘illegals’ although there was nothing illegal about their coming here. They were put in so-called ‘detention centres’, which means they were jailed indefinitely without trial, without charge and held for as long as it took. If they failed in their claim for protection, they would be ‘extracted’, which is a very grim little term within the department. An extraction would involve half a dozen CERT [Correctional Emergency Response Team] team members going into these hapless refugees’ room, taking them out of bed at two or three o’clock in the morning, and then bundling them into a van so they could be whipped off to an airport and thrown into a plane to be returned to whatever fate awaited them.

But I have to say I think ‘illegals’ was the most insidious of the bits of double-speak that we had from the government during those years. It conveyed a sense that these were criminals and locking up criminals looks OK. Then when you realise that the people behind the razor wire were children who had done nothing wrong at all, it all looks very different.

JOHN HARMS: What about the way sections of the media have used language in the reporting of the refugee situation?

JULIAN BURNSIDE: Well, they pick up the language, and they still do. You will still see reference to ‘illegals’. Now that it is becoming popular again to get grumpy about the tiny trickle of unauthorised arrivals the word ‘illegals’ is coming back.

JOHN HARMS: I remember listening to you one other time when you were talking about the impact of a style of language which took personality from refugees, which took the humanity from the refugees. Do you think that is a deliberate political ploy?

JULIAN BURNSIDE: Yes, of course. It is obvious that politically you would not want the people of the country to recognise exactly what you are doing. We saw that played out very interestingly with the Bakhtiari family. You may remember in Easter of 2002 there were protests at Woomera. A lot of Australians gatherer there and were protesting outside the fence at Woomera. Some of them actually broke open a couple of the bars of the palisade fence around the detention centre and a number asylum seekers got out. Some of them escaped. Almost all were recaptured pretty quickly. But amongst those who got out were the two Bakhtiari boys. The two Bakhtiari boys were then spirited across to Melbourne and someone – I am not sure who – took them to the British Consulate in Melbourne and they applied in the British Consulate for asylum. They wanted to be protected from Australia, which is really an interesting idea when you think about it. Of course, the consulate is part of British territory so they were in another country seeking refuge and protection from Australia.

They were captured on the television cameras both of them wearing baseball caps backwards. They had been given a Big Mac and a Coca-Cola. And they looked just like the kid down the street. And all of a sudden the public of Australia was galvanised by the idea that, ‘Oh my God, the illegals we are keeping there are actually kids. They look like the kids next door. This can’t be so good.’ The government then went into overdrive to demonise that family and eventually shuffled them out of Australia in the immediate aftermath of the tsunami in late 2004. They were taken out of Australia on Boxing Day or the next day in 2004. They were woken up in the early hours of the morning. The eight-year-old daughter was so terrified that she wet herself and was not allowed to change before she was taken off to the airport. The baby, 13 months old, born in Australia – the mother was not allowed to change the nappy before they were bundled off to the airplane. That was a really shameful extraction done as we were expressing our great feeling for other human beings, responding to the misery of the tsunami, sending money, and grieving for the people who died there. And at the same time this family who had caused such trouble was sent out of the country in those circumstances. If the people of Australia all understood who are the people held in detention centres and how they are treated, I think we would react differently than we do. And in the middle, the middle ground, the gap between reality and perception is all language. It’s all done by language.

JOHN HARMS: So you are more of an advocate than an activist, although you could be described as an activist, I suppose.

JULIAN BURNSIDE: I have always been amazed by that, having been a Liberal voter all my life up to and including 1996 – sorry. [laughter] Kate never knew that until we’d been married for a few years and she was furious. [laughter] We met on that election night in March 1996. I was so indifferent to politics back then, couldn’t care less. I had voted Liberal, didn’t think about it really. Kate was grieving the departure of Keating. We didn’t talk politics, because I was fascinated by her and hadn’t even thought politics was worth speaking about. It was a close call actually.

JOHN HARMS: In terms of the language of activism, I mean, we have two right wing parties really in Australia now. But if you were to put them on a spectrum, one of the things that I reckon is that the left have not been able to articulate in language understandable by the broad section of the population that they are actually on their side, in a way that wins them elections. Why was John Howard able to survive? What language was he using to first win and then survive given that if you look at the aspiration suburbs of Brisbane as a classic example of people who were voting against their natural position?

JULIAN BURNSIDE: I don’t know about politics. I really don’t understand it. I’ve always stayed clear of politics as best as I can, because someone once said to me, ‘Never wrestle with a pig. You both get filthy and the pig loves it.’ [laughter]

JOHN HARMS: Can I take a different tack then – this is coming from a completely different way. If we only know people… or a lot of what we know about people is from what they say, do you think we know a lot about Mr Rudd at the moment?

JULIAN BURNSIDE: If you were to judge a person by the way they speak, you’d have to say he is quite boring. But he did make quite a good speech in giving the apology to the stolen generations. I have heard Kevin Rudd give a couple of really good speeches actually. One was at the second anniversary of The Monthly Magazine in Melbourne not long after the election.

JOHN HARMS: I was there that night.

JULIAN BURNSIDE: He gave a terrific speech. He was really good. But Kate’s theory –and she knows about these things and I don’t – is that he is increasingly being told by the minders what has to be said to appeal to the relevant marginal electorates, so he is off his real pitch. One of the big complaints I’ve got about politics in Australia at the moment is that it’s all about focus groups and that sort of thing rather than about philosophy. It is a really great thing to see every now and then a politician saying, ‘This is my stand because I think it’s right’ not ‘This is my stand because 51.4% of you said it was right.’ There’s a big difference.

JOHN HARMS: It’s happening with newspapers as well in what they give to their readers.

JULIAN BURNSIDE: Sure.

JOHN HARMS: Let’s throw it open to some questions. Anyone got a question for Julian?

JULIAN BURNSIDE: Thinking of questions, I was thinking this morning that I like the idea that English absorbs new words and invents new words. I think it’s a great strength of English that we can borrow, steal and twist things into shape according to what we need. I’ve thought of a new swear word – Qantas. [laughter] ‘Get out of my parking place, you little qantus!’ It gets around an awkwardness. I felt it very strongly this morning.

JOHN HARMS: We’ve got a few new words tomorrow at Manning Clark House.

QUESTION BY ROB: You’re talking about the language of law. I often think the best legal judgments are often the best use of the language, because they are concise. They are a good usage of words and language put together. I must say that I’ve tried this theory on a couple of barristers, and I’m getting the same look from you at the moment, which is complete amazement. Is there any validity in my view that there is some very good language in the best legal judgments?

JULIAN BURNSIDE: No. [laughter] I happen to have with me a page from a judgment chosen almost at random. I will read you one sentence of it:

If as we have said, interest is to be awarded not to punish the defendant but to compensate the plaintiff for being deprived of his money, and the discretion arising out of the words ‘unless good cause is shown to the contrary’ is to be seen as existing in order to relieve against injustice to the defendant, the question will be whether the plaintiff’s delay, such that it is in the given case, is seen as working such injustice were the plaintiff to be allowed interest for the whole period available under section 58.

Now do you want to go into bat for that one? Can I tell you though that there are some judgments which are brilliantly written. Lord Denning was famous for his beautifully crafted judgments, and there’s another great judgment from Lord Justice MacKinnon in 1944, I think. He was the first of the three judges on this appeal court, and he began his judgment saying:

He must be a bold if not a conceited man who can venture to express an opinion about any of the innumerable problems arising under what may be referred to collectively as the Rent and Mortgage Interest Restriction Acts. But having once more groped my way about that chaos of verbal darkness, I’ve come to the conclusion, with all becoming diffidence, that the county court judge was wrong in this instance. My diffidence is increased by learning that my brother Larksmore has groped his way to the opposite conclusion.

I think that not only tells you that some judges can write well but also tells you that some parliaments write very badly.

JOHN HARMS: Gideon Haigh was invited to give a seminar to some of the judges in Victoria about writing in a more simple fashion. Here’s another question.

QUESTION BY ALBERT WHITE: Just an observation in relation to two words that I have difficulty with, and one of them is in the direction you were addressing a few moments ago in relation to the refugees. It makes me cringe every time I hear it. Refugees are ‘processed’. It reminds me of anaemic cheese. It’s a dreadful word to be used in relation to human beings.

JULIAN BURNSIDE: Can I say I agree with you, and I apologise if I used it. It’s so much the currency of the area that it can become a habit. In a judgment Justice Kirby has made precisely the point you just made, and I agree with you.

QUESTION BY ALBERT WHITE: The other word which I think is meant to confuse and sanitise in relation to prisons. We’ve had a new prison built here in the ACT and we no longer have ‘cells’ in the prison, we have ‘beds’ in the prison. In other words, there’s a confusion between the local hospital and the detention centre, so are they occupying a ‘bed’ in either one of the two places?

JULIAN BURNSIDE: The distinction may be a real one, because there may be more than one bed in a cell, and in fact I understand that there generally are. And certainly in detention centres, each room in a detention centre will typically have four or six beds, so to count the beds is probably a relevant exercise.

QUESTION BY MAX RICHARDSON: Have you read an essay from Walter Murdoch written in the 1930s called ‘Sesquipedalianism’? He says exactly as you say. ‘Language is to either inform or confuse. When people want to confuse you, they use words that are a foot and a half long’, and then he gives examples.

JULIAN BURNSIDE: Very interesting, because sesquipedalian means precisely a foot and a half, whereas now it’s generally used to mean 150 – oh, no, sorry.

QUESTION BY MAX RICHARDSON: No, that’s sesquicentennial. ‘Sesqui’ is one and a half.

JULIAN BURNSIDE: ‘Sesqui’ is one and a half, that’s right.

QUESTION BY MAX RICHARDSON: A foot and a half, sesqui, one and a half, sesqui…whatever. But that’d give you fair suck of the sauce bottle, wouldn’t it?

JOHN HARMS: Julian, what do you understand the correct term to be, is it ‘fair suck of the sauce bottle’ or ‘fair shake of the sauce bottle’?

JULIAN BURNSIDE: I’ve heard both. I don’t know which is correct – probably both. I didn’t bring my copy of Morris [Morris Dictionary of Word and Phrase Origins] with me.

MAN IN AUDIENCE: Or Norman Gunston with ‘fair suck of the pineapple doughnut’…

JULIAN BURNSIDE: I quite like the thing that Ogden Nash once said. He said, ‘Try to shake a ketchup bottle. First none’ll come, and then a lot’ll.’ [laughter]

JOHN HARMS: Which is one of those great ones. Have you ever read that book The Meaning of Liff by Douglas Adams?

JULIAN BURNSIDE: For those of you who haven’t read it, it’s a collection of obscure names of towns in various places. He then uses those as if they’re words that have a meaning, and he invents a meaning for them. One of them is ‘Creakle’, which is a town somewhere in England, and he defines ‘creakle’ as the smile of a pederast. [laughter] It works pretty well, I think.

QUESTION BY LIZ SHAW: I do accept that new words, making verbs out of nouns, has become part of the language. My grandson said his cricket team is versing a different team next week. But where does it end? I know the NRMA has ads saying ‘Unspend and unworry.’ My grandson reads that, and he thinks these are real words. Surely it doesn’t go that far. But my pet hate word this week was the academic who was discussing the possible new Shakespeare play and said, ‘Right from the get go’ – I thought ‘so-and-so’. Is there a limit in making words out of nouns?

JULIAN BURNSIDE: No, I think language is essentially very democratic, and ultimately the words that are used and the meaning that we give them is a matter of general agreement. If you go through the number of words that have been invented – and Shakespeare was one of the great inventors, by the way – especially by processes like back formation, they’re enormous. Hundreds and hundreds and hundreds of words in common use have been simply invented.

I mean ‘edit.’ We talk about editing a manuscript, no one says that with any discomfort, but that is purely an invented back formation from the word ‘editor.’ What does an editor do? Well, they edit. So there you go, you’ve got a verb. You’ve just created it. Now, if the word created by whatever process is useful and people understand it, it’s likely to become part of the language.

There’s a very interesting thing. In 1818, Dr Todd produced an edition of [Samuel] Johnson’s A Dictionary of the English Language. It was the first edition that hadn’t been supervised by Johnson. For the purpose of it, he’d had access to a folio edition of Johnson which had belonged to Horne Tooke, who was the politician and pamphleteer. Horne Tooke had annotated the folio edition of the first edition of Johnson and had noted various of the words in the dictionary as not proper English, and Todd lists all these words in the 1818 edition. They include some extraordinary words like ‘wharable’, ‘abdictitive’ and other strange things like that. But it also includes words like ‘justiciable’, ‘mandible’ and ‘horticulture’. So in 1818 three truly bizarre and non-existent words nowadays were thought by Johnson to be proper English, but another three were condemned as not proper English which are now orthodox.

JOHN HARMS: And in 1408 ‘suckled’ came from ‘suckling’. ‘Grovel’ came from ‘grovelling’ in 1593. These are all in Julian’s book.

JULIAN BURNSIDE: My book probably irritates some people but I am actually a libertarian when it comes to language change. The one reservation I have about language change (which I regard as a completely unstoppable process) – the one difficulty I have is that, when a word is used wrongly out of ignorance, it disables the word for quite a while. Until a new meaning is established you can’t use the word safely unless you want to be naughty. One word that is changing right at the moment, although the change is probably complete by now, is ‘fulsome’. ‘Fulsome’ very early on meant ‘abundant or full’ and that’s the way it’s being used these days. ‘Fulsome praise’ is now taken to mean copious praise. It’s a good thing. But within a few decades of ‘fulsome’ being coined, it came to have overtones of rank overabundance and acquired the meaning of nauseating. It had a bad meaning from the fifteenth century until very recently, and now it is being used in a neutral favourable sense again. I will not use the word ‘fulsome’ unless I am wanting to be cheeky because I know what it should mean, what it has meant for a long time, and I know how a lot of people understand it – and they’re opposite. So there’s a problem.

One of the interesting illustrations of this disabling process of language change is in one of the essays – it’s the word ‘nice’. Nice has had 16 or 18 different meanings since it was first formed. Its original meaning was ‘ignorant’. It comes from ‘nescient’, not knowing. And it has drifted through all sorts of meanings some favourable and some not favourable.

At the time Shakespeare was writing ‘nice’ had, I think, 14 different meanings that were then current, some of them good, some of them bad, all of them different. He only used the word ‘nice’ – I don’t remember the exact number – about a dozen times in all of his plays, which is a very, very low usage rate given the amount he wrote. But I suspect that he was reluctant to use it because it was a word that was so unstable in its meaning that no one could really be confident what it was he was saying. And anyone who is interested in language wants to make sure that their meaning is communicated to the person that is listening.

QUESTION BY IAN HODGSON: ‘Alternate’ and ‘alternative’, to my knowledge they have totally different meanings and yet ‘alternative’ has almost been totally displaced by ‘alternate’. There must be consequences for the legal profession in this.

JULIAN BURNSIDE: I’m now punting this because I haven’t looked at it, but my belief is that ‘alternative’ is a noun and ‘alternate’ an adjective. Strictly it should reflect a choice between one of two possibilities but I think it’s now no longer confined to that. But I think probably what you’re talking about probably is the use of ‘alternate’ as a noun. I could have those two usages round the wrong way, by the way. I haven’t looked at it but I will. I will look at it tonight.

MAN IN AUDIENCE: Or a verb ‘to alternate’.

JULIAN BURNSIDE: ‘Alternate’ certainly is a verb.

MAN IN AUDIENCE: [inaudible] ‘alternative’ is a choice between two.

JULIAN BURNSIDE: Yes, you are saying alternative is the noun then.

QUESTION BY LYN BEASLEY: I would be interested in what you think about change in language actually being driven by popular culture – I can’t think of an example. I am thinking here particularly of American sitcoms and that sort of thing where a word will be deliberately used in an incorrect way over and over and over, and then it becomes incorporated in that meaning.

JULIAN BURNSIDE: I would say don’t get too upset about it. These things come and go. Sometimes they are just a breeze across the surface of the water and sometimes they’re a tidal shift – think 23 skidoo and zoot suit. These are things that came and went in the course of a generation. ‘OK’ is another American coinage and has survived since 1839. We don’t know which ones are going to survive. But the reason they survive typically is because they’re useful. If a word or a coinage is useful in the language then I say ‘good on it,’ and I’m grateful to the person who invents a new useful word. And if by ignorance or convenience or a mistake or anything else someone decides to impose a fresh meaning on an existing word and if that fresh meaning is useful and takes off, fine, I don’t mind.

JOHN HARMS: We will be talking more about that in the final session today too. One last question?

QUESTION BY VAL ALDA: Following on your last remarks, what do you think about the impact of SMS?

JULIAN BURNSIDE: Transient, in my opinion. SMSing imposes some constraints which are a function of the technology and those constraints, I think, will be relieved as the technology emerges so that people will no longer have to be compress their sense into that telegraphic form.  Remember the origin of ‘telegraphic form’, telegrams used to involve the same sorts of contractions.

QUESTION BY VAL ALDA: What about children those who have grown up with SMS and don’t know how to spell any differently?

JULIAN BURNSIDE: That involves an assumption that kids who use SMS don’t know how to spell differently, and I’m not sure that that’s right. If they were confined to a diet of SMSing only, then of course that would happen. Whether you think that’s good or bad depends on your view of these processes but I am not too fussed about it, to be candid. I think it will pass.

JOHN HARMS: Ladies and Gentleman, Julian Burnside. Thank you very much. [applause]

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Date published: 01 January 2018