Lock them up and throw away the key? There must be a better way!

There is quite a bit of current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment. The fad for secret evidence provisions had its genesis in reaction to 9/11, but gained momentum from State government reactions to the activities of criminal bikie gangs.

In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police 1, despite arguments from the bikie gang that provisions of WA “anti-fortification” legislation offended the Kable doctrine, the High Court held that the taking of secret evidence did not offend fundamental notions of judicial power. It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself. Secret evidence provisions have been upheld previously (on grounds of unacceptably compromising the integrity of ongoing investigations or sources of criminal intelligence), but they have usually at least allowed the defendant’s counsel to know the evidence and be able to argue against it.

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  1. (2007) 234 CLR 532

Ashamed to be a lawyer?


Pseudonymous blogging lawyer Private Law Tutor confesses her occasional feelings of “shame” at being a lawyer:

I’ve thought and talked and written about the deep discomfort that ebbs and flows in me with my work. Well, not my work as such, but the work that I do. The industry I work in. The impact we have on lives, as lawyers.

Conflict is normal, and sometimes the people in conflict need help to resolve their disputes. This is what lawyers are primarily engaged in. Dispute prevention and dispute resolution. So our primary purpose is good and honourable. I’m just not always sure that our system and our work meets that standard.

A good friend has asked me a few times now if my discomfort is guilt. I don’t think it is. I think it’s deeper than guilt. After all, guilt can be sorted with an apology. “sorry about that. I made a mistake”. I think my discomfort creeps dangerously close to shame. Shame is a dark shadow that can overtake so much of ourselves. All of us have it lurking somewhere. …

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Troppo – your portal to the best in blog reading

Want to save time and identify the best in Australian blogosphere writing?  See these features built into the recently re-designed Troppo front page. If you can’t find several excellent articles every day of the week among that lot, you’re very hard to please:

  • “Blog reading selections” at the top of the sidebar links to various human-curated “best of” features, both blog and twitter-based.
  • A bit further down the sidebar is “Missing Link on Twitter”, Don Arthur’s continually updated “best of” service.  Someone else on Twitter recently rated it as the best source for locating excellent blog writing.
  • Blogroll (now updated) – also in sidebar.
  • Bottom of front page – RSS feeds to what I regard as the 12 consistently best Australian blogs.  They cover politics, law, economics and culture/arts.

Playing the bankruptcy game

Swimmer Simon Cowley

There’s been lots of media coverage of the washup of swimmer Nick D’Arcy’s bashing of fellow swimmer Simon Cowley in a bar some 4 years ago.  Understandably the victim is not willing to allow the perpetrator to escape scot-free by declaring himself bankrupt to avoid paying more than $370,000 in damages and costs awarded in the NSW District Court last year.

Moreover, D’Arcy is off to the London Olympics despite Cowley’s equally understandable view that he should never have been selected and that a secret deal was done, probably due to D’Arcy’s threats of legal action against Swimming Australia and AOC if his earlier banning was renewed on the basis that his cunning bankruptcy move rendered him in breach of SA’s code of conduct.  Cowley is in no doubt that D’Arcy is in breach and unfit to represent Australia:

Under Swimming Australia’s behavioural guidelines, competitors are required to be ”ethical, considerate, fair and honest”; refrain from any form of abuse, harassment or victimisation of others; and ”be a positive role model”.

Cowley said the organisation appeared to have overlooked those requirements when it recommended to the Australian Olympic Committee that D’Arcy be included in the Australian team for London.

However it appears that the AOC’s legal advice was rather different:

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The fastest milk cart in the west?

Readers as geriatric as me will probably remember British comedian Benny Hill’s famous spoof song Ernie (He drove the fastest milk cart in the west). It topped the UK Singles Chart in 1971, reaching the Christmas number one spot, and also reached no. 1 in Australia. But you probably didn’t know (or at least I certainly didn’t) that there was a very similar real life case in western New South Wales in the early 1970s, which was recounted in the latest edition of Bar News, the journal of the NSW Bar Association. Below are the reasons for decision of Cross J on appeal after a wronged husband was sentenced to one month’s imprisonment by a magistrate. Hat-tip Law Geek Down Under:

It has been said that revenge is a kind of wild justice. And, though the courts may not approve the infliction of deliberate injury, still one’s heart goes out in sympathy to all those who are moved to violence in defence of their family. Circumstances, which understandably give rise to a degree of passion may properly be regarded as mitigating factors on the question of sentence for violent conduct.

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Sinking the Slipper

Recovering journalist Mr Denmore succinctly summarises the response of the media (at least the Murdoch portion of it) to the Peter Slipper controversy:

[T]he Tory regime changers of News Ltd could spin the Peter Slipper story into an imagined constitutional crisis and provide yet another reason to call for an ELECTION RIGHT NOW! to fix the mistake made two years ago and to “put an end to what many view as a dysfunctional government”.   The News Ltd goons had Slipper in their sights anyway, having used their ‘news’ pages recently to depict him as a rat. (That there was no manufactured outrage over Slipper in the 18 years  he served as a Coalition MP spoke volumes. A classic stitch-up, then.)

Indeed The Oz is so fixated on the story that it has even published a post linking to just about every op-ed they can find on the subject, even including a token few from non-Murdoch outlets.

However, as if to confirm that they’re completely uninterested in the truth as opposed to breathlessly retailing scandal, not one of the linked articles makes any attempt to assess the legal substance or otherwise of the allegations against Slipper.

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Judicial misbehaviour or just blunt speaking?

Magistrate Pat O'Shane

Cross-posted from CDU Law and Business Online

With CDU Introduction to Public Law students due to study the topic judicial independence next week, it is an opportune time to examine a current situation involving allegations of judicial misconduct or incapacity on the part of NSW magistrate Pat O’Shane:

Ms O’Shane, who turns 72 in June next year, has been the subject of at least six previous complaints to the Judicial Commission of NSW, including one that was dismissed by its conduct division, which handles the more serious cases.

On Friday, Ms O’Shane – a magistrate with 25 years experience – had dismissed the case, saying a paramedic, allegedly assaulted by a patient, had initiated the confrontation. Police will be asking the Director of Public Prosecutions to consider appealing the case on the basis of judicial error.

The Premier, Barry O’Farrell, announced yesterday he had asked for Ms O’Shane to be referred to the commission because he was concerned she had refused to allow the ambulance driver to give evidence.

Magistrate O’Shane has also had a number of other brushes with the legal system relating to her competence and attitudes as a magistrate.

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Micropaying Rupert

Journalism academic Terry Flew blogs about a recent paper by a UK colleague:

Recently published on Open Democracy has been an influential paper by Angela Phillips on “The Future of Journalism“. The paper was presented at the Media, Power and Revolution: Making the 21st Century, held in London and hosted by the Goldsmiths Leverhulme Media Trust.

There are certainly valid points that Phillips makes. The point that the much talked about “crisis of journalism” is actually a crisis of traditional news business models, at a time which in other respects is an exciting one for journalism, is well made. Similarly, the limits to the Huffington Post-type business model, where more and more content is aggregated, and drawn from as many non-paid sources as possible, are timely and important.

The question remains of, as Phillips puts it:

Journalism, done well, is an expensive business and it has to be paid for. The question is not whether it should be paid for but how.

The problem is that Phillips’ answer enters into the realms of conspiracy theory. …

Maybe the real reason why we cannot have a simple payments system, that doesn’t require complex and off-putting log-ins, is because that would prevent the big players from getting their hands on all that private data. It is in the interests of big players to keep small players out of the game and they are doing it by telling us that information wants to be free.

Flew observes that there are no technological barriers to media organisations implementing anonymous micro-payment systems allowing casual readers to access and download individual articles for (say) a few cents.  I can’t help wondering why someone hasn’t tried it.  Or have they?  Do Troppo readers know of any examples?  Examining my own reactions, there’s no way in the world I’m going to pay a few dollars a week to Rupert Murdoch for an online subscription to The Australian, but I would certainly click to access individual articles that interested me at (say) 5-10 cents a pop.  My gut feeling is that I’d probably spend on average $1-1.50 per week by such a system, which is less than Rupert charges for a subscription but $1-1.50 more than he receives from me now.

In more rarefied fields casual access “micropayments” seem to be getting more common.  For example, I noticed only a few days ago that the Alternative Law Journal offers a casual individual article purchase option.  However at $8.80 per article they’re not really “micropayments” except perhaps from the standpoint of a highly paid QC.  I can’t help wondering how carefully the Alternative Law Journal has actually thought through this initiative.  The main consumers of journal articles are academics and university students.  Neither group is likely to pay for casual access because we can get it for free anyway through our university’s subscription to the journal or by inter-library loan.  For the small number of casual browsers who come across an article and decide they’d like to read it, a price of $8.80 will almost certainly serve as a complete deterrent. It doesn’t make any obvious sense given that the marginal cost of allowing articles to be downloaded is zero and the extra revenue is money they otherwise simply won’t receive. Fifty cents or a dollar, or two dollars at most would surely be much more sensible.

As for News and Fairfax,  I have no idea why they don’t try a casual download micropayments option.  Anyone want to venture an explanation?