BURDEN OF PROOF

I find a worrying trend in business and indeed within our legal system, a trend which undermines the very heart of our society. 

A basic tenet of ‘justice’ is that an accuser has to prove their accused is guilty.  It is not up to the accused to prove their innocence. 

In reality, it may be quicker for the accused to establish an alibi and circumvent the process.  However, the accused does not have to prove innocence and it makes perfect sense in that the accuser must have a proper case in order to accuse else there is no capacity to accuse.

Innocent people are left alone to enjoy without having to defend spurious action.

Fast forward to business.

Big companies seem to be trying to reverse that process especially when they are in a position to alter someone’s capacity to enjoy life.  For instance banks, communications companies or indeed any company we deal with.

The reason is obvious in that it’s far cheaper for a company to accuse without proof and sit back and wait until the accused proves they are innocent.  And, they must prove it or suffer withdrawal of some service.

This reverse thinking has also infected our legal system in services such as the ‘Financial Ombudsman Service’ or FOS.

For example, when a financial institution does the wrong thing and one is forced to engage FOS as an independent third party to help defend oneself, the burden of proof to maintain innocence often rests with the accused rather than the financial institution. 

Given this dysfunction, it also follows that accusing without merit carries a responsibility to return the injured party back to the position they were in prior to the fallacious accusation.  Otherwise the innocent party would have paid in some way for defending their innocence. 

Most of the time this cost in its simplest terms will be time.

Time is the one thing we can never replace and it is utterly wasted when we are required to protect our innocence against fallacious claims.

Using the FOS example, you have been accused of something and you must spend time proving your innocence as its charter is specific in that it requires both parties to conciliate and negotiate and you do indeed prove your innocence perhaps spending 50 hours doing so. 

So, the burden of proof was shifted to the wrongly accused and what’s more, the innocent party has spent time defending the wrongful action.  Time they can never get back and time virtually stolen by the accuser.

Yet FOS deem that the wrongly accused or indeed even a winning persons time has no value and will not direct compensation.

For example, a bank does the wrong thing which drastically effects our capacity to live as we had before their illegal action, we are forced to go to FOS to protect our interests and spend hundreds of hours defending ourselves against the banks illegal actions then at the end of the process the bank walks away with not even an apology whilst we have lost the one thing we cannot replace, time.

Not only have we lost our most valuable resource but we have lost our legal right to the burden of proof remaining with the accuser.  So, in effect, we are paying to have our legal rights removed.

Big business is laughing because their costs are reduced whilst the people they accuse suffer.

Doesn’t seem fair and it is most certainly against the meaning of the Westminster system of law.

Jon Langevad

EDUCATION - One person’s semi-educated opinion.

There seems to be a lot of discussion about education with every Minister trying to sound as though it was and is their life’s work to do ‘something’ about every minority interest group wanting to push their own agenda.  The result is a confused debate stuck in minutia.

There is no point in discussing teacher underperformance / pay or disability payments or indeed anything unless, the first question is asked and we all agree on the answer.

That question is – “Where do we want Australia to be in say 20 years?”

If the agreed collective decision is “She’ll be right, mate” then we tootle along as we have and we will all stand back aghast in 20 years when our country falls into third world status with loud protestations from the newly unwashed such as, ‘Not my fault mate, I wanted a new drinks fountain for the 8 year olds 20 years ago and that would have made the difference, but no one listened.  Now look at them at 28 and they are water deprived and illiterate’.

However, if we decide that we want Australia to lead the world in thinking, ideas and a really positive outlook on life then we need to make a few decisions – starting at the pointy end.

There are only two guiding parameters.  Firstly, everyone has a potential to create greatness and secondly, greatness can only happen if we provide the channels through which those magical thoughts can be turned into something special.

To provide those channels we need to accept the fact that an investment is required with all of us needing to contribute to make our country something special.

I have personal opinions as does everyone else but as I am writing this, then ..

Firstly, we do not spend time instilling into our little blighters a thinking ethic.  Sounds a bit harsh telling a four year old that thinking is a good thing until the alternative is realised.  Kids need to do kids things like suck the dog’s tail and live in a fantasy world and have extremes of emotion and know there’s always a hand to hold.  But they also need to experience the joy of thinking and accomplishment.  Personally, I think I realised I was part of the human race about the time I turned 30 and had to go back to school to get my degrees.  But I’m a bloke so I’ve got an excuse.

Therefore, I believe, we need to spend a huge amount of time making sure that when all our little pre-human poo machines turn 6 or 7 they have a joy of learning instilled into them which will enable them to focus and turn the mundane into the great.

Some will say that it’s the parents responsibility, and it is in part, but we cannot abrogate our responsibility as a society because it’s far far too important and, it has to happen early in life.  And, believe it or not, parents are ill equipped because they are actually just learning on the job.

Therefore, if we as a society accept the need to give our kid-ettes a leg up then we need to invest money, time, effort and drive into making it happen.  This is not about endless debate or trials or test cases or any other time wasting initiative actively sought by spotlight seeking minorities doing anything to stick their mono-syllable utterance machines in front of a microphone.

But it is about our Government [remember the ones who are supposed to represent us and do what the majority want] declaring war on ‘average’ and giving our brats and brat-ettes from 4 to 7 a boost into the future through focusing on the joy of learning stuff.

And, I bet there is an absolute plethora of talented people out there who can make this happen quickly, easily and with little politicking.

When we achieve this bunch of kids sneaking up on the age of reason actively seeking new challenges, then it will be a self fulfilling enigma machine because drive will come from within their buzzing and exponentially expanding brains - not from the outside from someone with a big learning stick.   

This should be free to all.

Now, given all the stuff in the middle is accomplished and we are seeking benefit for Australia then we also have a right to expect payback for all the freebies.

Our new and inspiring education machine is now spitting out people with trade qualifications, diplomas, degrees and doctorates at the peak of their intellectualism, creativity and ability to see the impossible as, possible.

 Yet, we shake their hands make them wear a funny hat and say see you later. “She’ll be right”. 

We have looked at the best start and the middle bit supporting a self fulfilling prophesy, now we need to focus on the prophesy bit.

Can you imagine the payoff for all this free education being as simple as giving a year back to the society which supported their success.  And what’s more, as we have instilled a thinking ethic at the almost human stage, these educated thinking machines will be champing at the bit to start their careers with a bang.

That bang is simple.  The first year out of education and prior to awarding a qualification, everyone would be required to join a think tank and work with like minded people to create ‘something’ for the benefit of our country.  Obviously, not everyone will be able to achieve a brain snapping moment but as long as everyone improves something it will snowball with a self fulfilling result – greatness.

Start with a vision to make Australia great, focus on creating a thinking ethic in little tackers, support that thinking / learning right through the education system and let it culminate in think tanks and outcomes and ‘greatness’.

How hard can it be?

Jon Langevad MBA

PS: Critical issues:

We need people who can channel the excitement of learning  – purge the dross.

Education should be free with the same investment in every kid.

Parents may choose a different school with that investment linked to their kid.

Develop and channel learning through the NBN for isolated kids.

Support kids with disability / different abilities to succeed.

Kids who fall out of the system need a hand to hold – not everyone will succeed 100%.

Everyone at any age needs that hand to hold at sometime – this should also be built in.

[note that the ‘hand’ is far more than just monetary benefits – it is also emotional support]

Beware the vocal minority moving focus away from the real issues.