Whose Side Are You On?

For about two months this year I found myself in the middle of a national debate about tax policy.

A proposed tax measure would have applied a 30 per cent minimum rate to discretionary testamentary trusts. I argued publicly that it should not.

I made that argument to politicians, journalists, Treasury officials and a few thousand people on the internet.

The argument was narrow. Discretionary testamentary trusts are not a tax shelter. They are how ordinary families provide for a child, a surviving and now sole parenting spouse, a beneficiary who cannot manage money, a beneficiary who is vulnerable. The proposal would have fallen hardest on the people the trust exists to protect.

That was the whole position. I did not think it was controversial.

What surprised me was not that some people disagreed. A few did, on reasonable grounds, and the argument was sharper for it. What surprised me was how rarely the argument was heard as an argument.

Most people reached past the substance for a label. And the label they reached for told me more about how we run public debate than it did about me.

First I was a political actor. I had met with the crossbench, briefed MPs and sat across a table from Treasury officials and Senators. Therefore, the logic ran, I was doing politics. Politics has sides, and I must be on one of them.

The possibility that a person might engage the political process without belonging to it did not seem to occur to anyone. You were either in the game or outside it shouting. There was no category for someone making a claim about how a law would work and asking the people who write laws to take it seriously.

Then I had commercial interests. This one stuck most easily, because it was half true. I am an estate planning lawyer. I prepare testamentary trusts. So when I defended them, the obvious read was that I was protecting my own billing.

The trouble with that read is that a practice is not made or broken by a single structure, and most of the estates that would have been caught are modest ones whose families will never be anyone's lucrative client.

The deeper trouble is the assumption underneath it. If the only reason to defend something is to profit from it, then every expert is compromised by definition, and the people who know most about a subject become the people you trust least.

Of course I had an interest. I thought the proposal was wrong. The mistake was assuming that conviction must have been purchased by politics, profit or partisanship.

Then I was aligned with the opposition. I had criticised a policy of a Labor government, so I must be carrying water for the opposition and their allies.

This was the strangest charge of the three, because my actual position conceded the government's broader point. I understood the tightening the tax treatment of inter vivos trusts. I argued only that testamentary trusts are a different instrument and should be treated differently.

Agreeing with the principle while disputing one application of it is not opposition. But in a binary frame, that distinction does not survive. Conceding ground reads as weakness, or as cover. There is no slot for "they are right about this and wrong about that", so the nuance is the first thing to go.

I do not think any of this came from stupidity or bad faith. The labels are simply how we make sense of public claims now.

We have built a world in which everyone is assumed to have a stake, so the first question asked of any argument is not whether it is true but whose interest it serves.

Who benefits has crowded out is it right.

Once that becomes the operating question, a person with no angle is not reassuring. They are suspect, or they are invisible. The non-partisan position is the one nobody believes exists, because the frame has no room for it.

The people most likely to be filtered out of public debate are precisely the ones who are not playing one.

Frequently the discussion moved from the merits of the case to the legitimacy of the person making it. I was speaking for people with no standing of their own. The complaint was that I had none either.

That is the pattern I mean. Faced with a question about the merits, answer the standing of the person asking instead.

A motive filter does not screen out bad arguments. It screens out disinterested ones. That is the real damage, and the debate carries more of it than I do.

The cost to me I can describe. I spent energy proving I was not the thing I had been accused of being, energy that should have gone to the merits. There has been a price beyond that, the kind that does not show up on an invoice.

I find none of it weighs much. I have spent the past twelve months saying things the people in the room would have preferred I did not, about this and about other comfortable arrangements that do not survive much scrutiny.

The pattern is familiar enough to be boring. When a criticism is uncomfortable, it is often easier to question the critic than the criticism. No conspiracy is required. It is simply a cheaper response.

A few years ago I would have managed it more carefully. I would have softened the edges and worried about which file I was being put in.

Something shifts with enough years behind you. If a thing is true and needs saying, I can wear being misread for having said it. That is cheaper than the alternative.

The easiest way to avoid being accused of having an agenda is to say nothing at all.

The people most willing to pay that price are often the people with the least useful things to say.

Yesterday I watched my nephew admitted to the Supreme Court. The Chief Justice reminded the room that our duty is not to tell clients what they want to hear, but to give them our honest advice.

That is the job.

It is also, it turns out, the whole of what I have been doing.

The discomfort I have described is not a temperament I have grown into. It is the work, performed in public instead of across a desk.

On 18 June the government announced a full exemption for testamentary trusts established for genuine testamentary purposes.

The merits won, in the end.

What I cannot tell you is whether they won because of the argument or in spite of the noise around it. I would like to believe the case carried itself. I suspect the truth is messier than that.

What I am left with is a question.

Before we ask whether a public claim is right, we now ask whose side it serves, and we treat that reflex as a form of sophistication.

It might be the laziest thing we do.

The next person who turns up with an argument and no angle will get the same treatment I did. We will all be a little worse off for not having listened.