The Angry Exile: It's our fault, now pay up

The Hangman

Into our town the Hangman came,
Smelling of gold and blood and flame.
And he paced our bricks with a diffident air,
And built his frame in the courthouse square.
The scaffold stood by the courthouse side,
Only as wide as the door was wide;
A frame as tall, or little more,
Than the capping sill of the courthouse door.
And we wondered, whenever we had the time,
Who the criminal, what the crime
That the Hangman judged with the yellow twist
of knotted hemp in his busy fist.
And innocent though we were, with dread,
We passed those eyes of buckshot lead --
Till one cried: "Hangman, who is he
For whom you raised the gallows-tree?"
Then a twinkle grew in the buckshot eye,
And he gave us a riddle instead of reply:
"He who serves me best," said he,
"Shall earn the rope of the gallows-tree."
And he stepped down, and laid his hand
On a man who came from another land.
And we breathed again, for another's grief
At the Hangman's hand was our relief
And the gallows-frame on the courthouse lawn
By tomorrow's sun would be struck and gone.
So we gave him way, and no one spoke,
Out of respect for his Hangman's cloak.
The next day's sun looked mildly down
On roof and street in our quiet town,
And stark and black in the morning air
Was the gallows-tree in the courthouse square.
And the Hangman stood at his usual stand
With the yellow hemp in his busy hand;
With his buckshot eye and his jaw like a pike
And his air so knowing and business-like.
And we cried, "Hangman, have you not done
Yesterday, with the foreign one?"
Then we fell silent, and stood amazed,
"Oh, not for him was the gallows raised."
He laughed a laugh as he looked at us:
"Did you think I'd gone to all this fuss
To hang one man? That's a thing I do
To stretch a rope when the rope is new."
Then one cried "Murder!" and one cried "Shame!"
And into our midst the Hangman came
To that man's place. "Do you hold," said he,
"with him that was meant for the gallows-tree?"
And he laid his hand on that one's arm.
And we shrank back in quick alarm!
And we gave him way, and no one spoke
Out of fear of his Hangman's cloak.
That night we saw with dread surprise
The Hangman's scaffold had grown in size.
Fed by the blood beneath the chute,
The gallows-tree had taken root;
Now as wide, or a little more,
Than the steps that led to the courthouse door,
As tall as the writing, or nearly as tall,
Halfway up on the courthouse wall.
The third he took -- we had all heard tell --
Was a usurer, and an infidel.
"What," said the Hangman "have you to do
With the gallows-bound, and he a Jew?"
And we cried out, "Is this one he
Who has served you well and faithfully?"
The Hangman smiled: "It's a clever scheme
to try the strength of the gallows-beam."
The fourth man's dark, accusing song
Had scratched our comfort hard and long;
"And what concern," he gave us back.
"Have you for the doomed -- the doomed and Black?"
The fifth. The sixth. And we cried again,
"Hangman, Hangman, is this the man?"
"It's a trick," he said. "that we hangmen know
For easing the trap when the trap springs slow."
And so we ceased, and asked no more,
As the Hangman tallied his bloody score.
And sun by sun, and night by night,
The gallows grew to monstrous height.
The wings of the scaffold opened wide
Till they covered the square from side to side;
And the monster cross-beam, looking down,
Cast its shadow across the town.
Then through the town the Hangman came,
Through the empty streets, and called my name --
And I looked at the gallows soaring tall,
And thought, "There is no one left at all
For hanging, and so he calls to me
To help pull down the gallows-tree."
So I went out with right good hope
To the Hangman's tree and the Hangman's rope.
He smiled at me as I came down
To the courthouse square through the silent town.
And supple and stretched in his busy hand
Was the yellow twist of the hempen strand.
And he whistled his tune as he tried the trap,
And it sprang down with a ready snap --
And then with a smile of awful command
He laid his hand upon my hand.
"You tricked me. Hangman!," I shouted then,
"That your scaffold was built for other men...
And I no henchman of yours," I cried,
"You lied to me, Hangman. Foully lied!"
Then a twinkle grew in the buckshot eye,
"Lied to you? Tricked you?" he said. "Not I.
For I answered straight and I told you true --
The scaffold was raised for none but you.
For who has served me more faithfully
Then you with your coward's hope?" said he,
"And where are the others who might have stood
Side by your side in the common good?"
"Dead," I whispered. And amiably
"Murdered," the Hangman corrected me:
"First the foreigner, then the Jew...
I did no more than you let me do."
Beneath the beam that blocked the sky
None had stood so alone as I.
The Hangman noosed me, and no voice there
Cried "Stop!" for me in the empty square.

Maurice Ogden

Tuesday, 26 April 2011

It's our fault, now pay up - UPDATED

A couple of weeks back I had a rant about the insanity that is allowing governments to sign contracts which extend far beyond the few years of their term and commit both their successors and the poor bastard taxpayers to what may turn out to be a bad deal. The rant was prompted by news that the Wonthaggi desalination plant, a multi-billion dollar project to secure Melbourne's water supply against drought and which was agreed by the last state government shortly before a particularly rainy year almost doubled the amount of stored water, was at least six months behind schedule because of delays caused by rain. Extra levels of Exile outrage were caused because the bastards were talking about taking legal action against the state because the profit forecast had dropped 98%. My feelings were, and still are, well boo fucking hoo - it was up to bidders to allow for the possibility of bad weather and factor that into their tenders. If the winning bidder failed to do so and is now up shit creek that's nobody else's responsibility but their own, and that Premier Ted Baillieu should make this absolutely crystal clear to the company.

It now turns out that it wasn't an empty threat.

THE companies building Victoria's multibillion-dollar desalination plant are seeking compensation from taxpayers because of the impact of this year's floods on construction.
The state government has confirmed that the Aquasure consortium has lodged a ''force majeure'' claim under the contentious 28-year contract signed by the former Brumby government in 2009.
Force majeure - French for superior force - refers to an event beyond the control of government or contractor.

This is a new legal term for me, but a quick web search tells me that it's fairly common clause in contracts that allows for both parties to walk away without there being any liability. It actually sounds rather like the 'acts of God' stuff you see in the fine print of your insurance policy and it seems like it's being used much the same way in this case. Now I'm no lawyer but to me this whole force majeure thing sounds ripe to be abused. To exaggerate the point, why bother doing any due diligence at all when you can just put in a clause saying that the contract is voided if anything happens which you hadn't thought of? I'm not saying that Aquasure didn't do any due diligence but clearly they didn't allow for the possibility of a severe rain delay, and I still don't see why the financial consequences of that should be borne by the poor bloody taxpayers.

Oh.

[...] the Brumby government agreed to share the risk for ''act of God'' events with Aquasure.

Wonderful. John fucking Brumby yet again.

Now I know that Brumby is hardly unique in this and that lots of governments sign up their taxpayers for all sorts of long term deals of varying degrees or value and shittiness, but isn't it about time somebody somewhere put the fucking brakes on this?

Baillieu's government is at least taking the same line I would.

The government is resisting the compensation claim. ''We believe this is a matter for Thiess and its insurers and [we] will not comment further on this as it is a commercial matter under the contract,'' said a government spokeswoman in a written statement.

Couldn't agree more, but it shouldn't be necessary. As I've said here a couple of times we need to have contracts limited to the lesser of a single parliamentary term or halfway through the next parliament unless approved by a referendum. The more the whole Wonthaggi business drags on the more certain I am of it.

UPDATE - In the comments Geo points that force majeure is a legitimate clause in most contracts. I'm prepared to believe that it is but it's not really the point I was making. You can put whatever you like in a contract as long as it's legal, and if it's unacceptable it's for the other party simply to not sign the thing. My problem is that governments are able to sign up to all sorts of things with costs and effects that far outlast the government and even the political careers of those involved, and that since governments are also known to be a little too free with other people's money and to pay less attention to details than they might if they personally were going to take the financial hit this is something that ought to be stopped.

As to the validity of the force majeure in this instance, Geo notes that

The unusual rain will almost certainly be accepted by the Adjudicator as a force majeure event if the dispute is not settled.

However, a look at Bureau of Meteorology records for rainfall in the area suggest that the rain wasn't particularly unusual. Australia is, as Dorothea Mackellar wrote a century ago, a land of "droughts and flooding rains" and so I suspected it might turn out to be unusual for recent years but not out of the ordinary in the medium to long term, but not even that as it turns out. The 2010 rainfall (1131.2 mm, not yet QCd) is above average but isn't even in the 90th percentile (1153.3 mm) and has been exceeded many times. Even in recent years during the drought (if it really was a drought rather than increased water consumption - I'll look into that now if I can make time) we've had more rain in one year, 2001 (1157.2 mm). 1995 (1379.0 mm) and 1996 (1182.2 mm) immediately preceding the 'drought' were both much higher and 1991 (1151.7 mm) was also a wetter year, though the 80s and 70s were drier overall. Nor was 2010 affected by a freak month of really high rainfall since none of the monthly figures were record highs. In addition the proposed site was actually flooded in 2007, two years before the winning bidder was announced, which you'd imagine would have rung some alarm bells. With all that in mind I'd have thought they're batting a sticky wicket but of course fuck alone knows what the arrogant twats signed us all up to. For all we know we might be on the hook for the fucking lot.

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atangledweb1 22p · 726 weeks ago

Force Majeure has been used and abused since the first day some smartarse lawyer first thought of it.

But the real problem, as you say, is a govt binding its successors financially - often for generations. PFI is the timebomb under the UK. Off balance sheet shit that our grandchildren will still be paying for long after it's fallen down.

The argument used there is...we can't just tell the suppliers that they are thieving bastards and rip the contracts up because nobody will ever bid again. The answer of course is that they *will* because the govt has huge pockets. The suppliers will just know next time not to take the piss.

1 reply · active 726 weeks ago

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Angry_Exile 90p · 726 weeks ago

Yeah, I think it's a symptom of governments rarely being run by people who've done this in the real world. The only thing that will turn the private sector suppliers off government work is if the government stops being such a huge and easy cash cow, just like you said.

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Geo · 726 weeks ago

Force majeure is a legitimate clause in most contracts, if a Contractor was to allow for all eventualities in their price they would never win a tender or be accused of profiteering if they allowed for it. The unusual rain will almost certainly be accepted by the Adjudicator as a force majeure event if the dispute is not settled. The Contractor has an obligation to minimise the costs incurred due to the event and is not entitled to any profit on these costs. Assuming that the Contractor has followed the contract requirements, your Government may be better served employing a firm to analyse and challenge the supporting data for the claim (you would be surprised how much of the claim could be disallowable) rather than stamping their feet and whinging.

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Angry_Exile 90p · 726 weeks ago

The point was not really about force majeure being legitimate or not. As far as I'm concerned anyone can put whatever they like in a contract that doesn't actually involve something criminal. And I do mean anything. It's up to everyone signing it to make sure there are no clauses they can't live with inserted by the other side - caveat contractor if you will. The point was really that governments, which are temporary, are able to sign contracts on behalf of and which commit the nations, states or territories, which are as good as permanent, that they are in charge of until the electorate kick them out. They may not even have a mandate.

In the example of the Wonthaggi desal plant the idea was initially opposed by the ruling Labor government during the 06 state election, which they went on to win comfortably though with a reduced majority. It was still more than enough to ramrod the approval for the desal project against public opposition when the government changed its mind less than a year later. The then Premier Steve Bracks gave the green light and then almost immediately quit politics for unrelated reasons, handing the job of both Premier and signing the desal deal (among other contentious deals) to his replacement, John Brumby. Thus the situation was not unlike Gordon Brown's time in No. 10 - as State Treasurer Brumby was even in the equivalent job to Brown and had no opposition in the contest to become leader and Premier. So, running the second most populous state in the country and having been voted in as representative for Broadmeadows rather than Premier of Victoria, and member of a party opposed to a desal plant, he was able not only to sign a contract to have one built and commit the state to the costs of running it for many years after his own government had gone even if it hadn't lost the next election.

That's what I have a problem with. Not force majeure itself but the fact that governments are able to sign contracts that bind others, including successor governments, to conditions they might not have agreed and over terms far longer than an electoral cycle. I do realise that this is sometimes necessary with projects with high up front costs - desal plants, for instance - but I don't think it's unreasonable for a government to be required to be open about what it's signing everyone else up to and to seek approval if it's going to be over a significantly longer period of time than a parliamentary term. The Brumby government did not exactly cover itself in glory in this regard and Brumby himself once dismissed a journo's question about the costs of another contract (involving trams) with words to the effect of 'You don't need to know that'. It's that kind of thing I want stopped. If the state as a whole agrees to a shit contract then so be it, but it's entirely different when it's done with no mandate by party that promised not to do it run by a man who wasn't elected to the top job.

As to the validity of the force majeure claim I'll do a little PS on the post.

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