There is currently a case being fought out in the media. It concerns a woman Kristy Fraser-Kirk, who was sexually harassed by the former chief executive of David Jones, Mark McInnes. She is seeking $37 million in a civil action against the CEO and company.
My concern with this case is the interests of shareholders. We have a corporate structure in the country which effectively makes companies defendants for the behaviour of CEOs. Is it the responsibility of passive shareholders to compensate aggrieved victims of any civil standard. Shareholders are in a very weak position to settle such matters, and even CEOs will not always have control of these situations. Clearly, if Mark Innes perpetrated actions as it is alleged, then he has actively sponsored ethical mis-conduct, both as a role model, and as a principal to the act.
He is however the CEO. What are subordinates going to do? Risk their careers? Why should they? Kristy Fraser-Kirk didn't until far later. It could be argued that she allowed the 'culture' to continue as much as anyone.
I would suggest that if anyone ought to be responsible for this civil action, the burden ought to fall upon the CEO and the directors who appointed him, and whom failed to establish adequate procedures for eradicating such actions. In such circumstances as they might have done that, then the case can focus on the effectiveness of those measures. I see no reason why shareholders in David Jones ought to pay for such actions. This 'collectivised' justice is nonsense. It really is injustice. More importantly it leads to no change in behaviour. The perpetrators and enablers need to be punished, not the passive shareholders with no executive powers or direct interest in the case.
The same can be said for legal cases against government. The reason why government ought not to run any commercial or organised endeavour is because they have no civic responsibility. They are utterly unaccountable because they have no personal money at stake. Even the prospect of criminal action is limited for some office bearers because of they are subjected to parliamentary-based impeachment proceedings rather than court proceedings. This is just another failure in our parliamentary system.
There is also the issue of the amount of the civil punitive damages sought of $37 mil. Clearly this amount does not represent the 'damages' done to the victim, but is an attempt to claim punitive damages for women collectively, whether those women are victims at David Jones or in society in general. The reality is that the victim ought not decide who gets what, nor any non-profit she sets up. The court ought to recognise that most people do not take action against companies, and that there is a role for the government in punishing such action. I would suggest that the need for such punitive action is justified only by the fact that justice in the West is so inaccessible because of its cost and inefficiency. Thus it is deemed desirable to 'really hurt' the perpetrators so that other people are 'educated'. In fact, such justice is not really justice, since coercion does not educate, it merely modified or represses behaviour. This is why so many foreigners go offshore....to abuse children and others with less (economic and thus legal) power. We are - as a society - massive evaders. We don't resolve child abuse, which outsource it to Asia and other developing countries. Ask yourself how AIDS got to countries like PNG. Do you imagine that there are so many Papuans flying around the world infecting everyone. No, its Western cultural imperialism of a new type. The type where the West represses problems, and in effect drives them offshore. The cause is ultimately the system of executive administration - our method of decision-making which is the cause of the problem. This depends on our 'flawed' theory of knowledge...our epistemology.
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Author
Andrew Sheldon
