Club Troppo

Tim O’Reilly proposed the slogan “Government as a platform” for his Government 2.0 activities which he’s heavily scaled back in favour of more lucrative opportunities. But there was always a problem. That problem was that it wasn’t so much that no-one had ever had the idea that government might be an enabling resource – a platform in the lingo of Web 2.0. The real problem is that government has no culture of this. Departments are proprietorial and secretive and that’s a tenacious culture which is prevented from evaporating by lots of expectations and structures.

But there is one part of government that has cultivated the culture of ‘Government as a platform’ since its inception around a century and a half or so ago:  The GLAM sector – that’s galleries, libraries, archives and museums. I couldn’t help noticing when doing the Government 2.0 Taskforce that the GLAM sector were up and at it long before anyone else. The National Library had its newspaper digitisation program and Seb Chan from the Sydney Powerhouse Museum was on our Taskforce and instrumental in getting us to run a mashup competition – and likely instrumental in getting the Powerhouse to become the first museum anywhere in the world to post its historic photos on Flikr and licence them Creative Commons. Seb’s unit built the mashup of baby names in NSW which is fascinating to play with.

I also learned about all the problems the national and state libraries were having getting rights to archive web content that were analogous to their rights as libraries of record to receive a copy of all publications in their jurisdiction from publishers. If they had such rights all they would need would be a robot to go and collect the material and Bob’s your uncle. In fact without this, much of their efforts involve sending people letters to ask their permission to archive their sites. I discussed with various people in libraries of record having such rights which certainly made sense to me.

Anyway, they still don’t have such rights.

Meanwhile . . . they are certainly keen on their rights to printed material as you will observe from this letter I received from the Victorian State Library this week (I might add that The Victorian State Library is a terrific organisation, which I am very fond of, but even terrific organisations do really silly things):

The State Library of Victoria tries to collect a copy of all books, videos, CD’s, CD-ROMs, pamphlets, periodicals, newspapers and any other items published in Victoria for permanent preservation in the Library.

To help us in this endeavour, legislation was passed in 1869 requiring publishers to deposit free of charge with the library a copy of every item published in Victoria. Current legislation is contained in section 49 of the Libraries Act 1988 (see enclosed leaflet).

Recently the following publication came to our notice.

The economic value of Australia’s investment in health and medical research: reinforcing the evidence for exceptional returns. 

We look forward to receiving a copy of this publications (sic), as well as any other publications you might not have previously sent us for legal deposit. Please follow the enclosed legal deposit instructions when forwarding publications. (Continued)

What a load of old sensationalist nonsense. I’m seriously starting to worry about Giz. If I want to search anonymously there is a thing called an anonymous tab. And I don’t log into my Google account outside work because why would I? – My phone is logged in.

That’s how the first commenter responded to this piece in Gizmodo accusing Google of being evil because it – wait for it – shares identity information between functions. That’s right, Gmail can now share information with Google search with Google + and on it goes.

This is supposed to be some attack on our privacy. Well there are very nasty things Google can do to harm my privacy. Those things would be telling other people things it knows about me that it could reasonably expect that I might not want them to tell them.

But it doesn’t do that. It is just using all the data it has to further improve improve the adds and other services it provides me. WTNTLAT? *

My point is, as I said here, privacy law, and privacy activism should be focused wherever practicable on stopping conduct that actually threatens privacy – ie where that information is provided to agents other than the one that has the information in the first place. It always pissses me off when I have to wait to be read some stupid thing which tells me my voice is going to be recorded “for quality purposes”. If it’s for training purposes they can protect my privacy by making sure the recordings don’t get leaked and by destroying them after the couple of weeks it was necessary to hold them to use them for the entirely benign purposes of quality control.

And remember, although Google is probably mostly thinking of optimising advertising here . . .

1. making advertising relevant is a source of considerable value to the world and
2. there are lots of other ways that the data might be able to be used to simply provide improved services to people – such as search, prompting connections with others, or with information of relevance to users, task management and all the other things that I can’t think of.

So broadly speaking, and with the caveat that I’ve not researched all this in great depth, I submit these views to you O Troppodores and Troppodillians.

* “Define: WTNTLAT” doesn’t generate any answers in Google, so we’re on the ground floor here Troppodores. This could be Troppo’s big break – our own little footnote in the English language, our own corner of the universe.

New article by me at CDU Law and Business Online (I’ve written on this topic before at Troppo but this one is aimed at law students and is therefore a bit more academic though hopefully still accessible and interesting for a general audience – feedback in that regard is invited).

Judge Michael Finnane

Justice Michael Finnane of the NSW District Court has long been one of my favourite legal characters.  But then I’m not a criminal defence lawyer.  If I was I’d almost certainly have a different opinion, as this SMH story notes:

But it is as the state’s most punitive District Court judge – the man who jailed the gang rapist Bilal Skaf for 55 years and the paedophile Robert ”Dolly” Dunn for 30 – that Michael Finnane has made his name. His reputation has prompted defence lawyers to try in vain to move their clients to other courts, and for good reason.

A Herald analysis of the Court of Criminal Appeal’s published decisions since January 2008 shows Judge Finnane is the state’s toughest sentencer.

In the past two years, he has had a total of 37 years stripped from his sentences because the state’s top criminal court deemed them excessive, at a time when it is increasingly reluctant to do so.

Judge Finnane’s decisions were overruled 16 times – 10 of them for excessive sentences.

Even his oldest legal mates like solicitor Greg Walsh try to avoid having a matter heard by Finnane J if they get half a chance.  His Honour explained the extent of his relationship with Walsh in recent reasons for decision for decision in which he refused an application that he disqualify himself  for reasonable apprehension of bias from hearing charges against one of Walsh’s paedophile priest clients:

I have known Mr Walsh personally for more than 30 years. When I was a barrister, he would brief me to appear for his clients from time to time. For the most part I appeared in civil cases.Mr Walsh has always a done a considerable amount of criminal law work in his practice and in the few years before 2000, when I became a judge, he developed a considerable practice appearing for Catholic priests and brothers who were charged with child sex offences. At one stage, he frequently briefed Mr Chester Porter QC to appear for his clients. He also briefed other barristers to appear for them and he appeared for some of them directly. To my knowledge he has appeared in such cases in New South Wales, Victoria, Queensland, Tasmania and Western Australia. From time to time, over the years, I have met him on a social basis and have discussed in a broad sense this part of his practice.

Within the past few years, he has borrowed from me a set of robes I had kept from my days as a junior counsel, my barristers wig and some jabots so that he could appear as counsel in the Supreme Court of Tasmania in a child sex case involving a priest or a brother. He discussed this briefly with me.

Greg Walsh’s bias application against his old mate Finnane J arose from a jocular conversation at a morning tea at the District Court following the swearing in of a new judge. On Walsh’s recollection you can certainly see why he was concerned that His Honour might not bring an entirely unbiased mind to bear on the question of sentencing his priestly client CUR24 if a jury ended up finding him guilty of any of the very large number of child sexual abuse charges due to be heard before Finnane J. Unfortunately for Walsh’s client, His Honour’s admittedly hazy recall of the conversation was different enough to allow him to adopt the robust attitude that the High Court says judges should apply towards bias disqualification applications. We wouldn’t want to encourage solicitors to manufacture spurious bias claims against trial judges merely for the purpose of cynical forum shopping, would we?

Anyway, whether Walsh’s recollection or that of Finnane J is the more accurate is currently a moot point. His Honour refused to disqualify himself. Nevertheless His Honour’s version of his morning tea conversation with Greg Walsh is well worth revisiting:

(Continued)

I paid a visit to Catallaxy earlier today after my Google reader informed me that Rafe Champion had awarded me and Jason Soon something called the HL Mencken Award. Although it’s evidently not intended ironically, I was a bit taken aback given that my last interaction with Rafe involved threatening to sue him for defamation for falsely accusing me of conspiring to secretly alter a blog post about global warming.

In any event that seems to be ancient history now.  Rafe even graciously apologised, while I’ve restored his commenting access here at Troppo (a magnanimous impulse I may live to regret next time we host a global warming thread).

While I was over there, I noticed that some of the Catallaxians seem to have a bee in their collective bonnet about the constitutional validity of the Gillard government’s appointment of former Treasury head Ken Henry as a special adviser to the Prime Minister under Constitution s 67.  See this post by Sinclair Davidson and this one and this one by Samuel J.

I’m not at all sure why they’re worried about it.  Presumably Henry is seen as a class traitor for taking a job with Juliar.

In any event the discussion provoked my interest because I’d never looked closely at s 67 before. Samuel J’s argument appears to be that s 67 should be regarded as a transitional provision whose effect was spent once the first Public Service Act was enacted in 1902.  He appears to rest that argument mostly on the introductory words “Until the Parliament otherwise provides, …” .  However those words also appear in s 96 (Financial assistance to States) and no-one argues that the Commonwealth no longer enjoys the power to make grants to the States under it.  It’s certainly true that section 41 (Right of electors of States) was held to be a transitional provision whose effect was spent once the Commonwealth Parliament met and enacted the first comprehensive electoral legislation to provide for the franchise for federal elections.  But that’s essentially because it was clear that that was the Founding Fathers intention.

By contrast, it is abundantly clear that the Founding Fathers did NOT intend s 67 to be a mere transitional provision.  See the relevant part of the 1897 Convention Debates starting at page 916. As the ANU publication Public Sector Employment in the Twenty-First Century relevantly observes:

(Continued)

The ethics of the second oldest profession – new post by me at CDU Law and Business Online.

My post at CDU Law and Business Online.

Update – Tweets placed in a more coherent context in In search of Qanilingus at CDU Law and Business Online.

NB Australian Financial Review arguably has the best coverage and has no paywall for the weekend.

AequoEtBonoAngus M-a-c-i-n-n-is

by CDUlawschool

@

@gavinrebetzke Yes, grounding was said to be to permit lockout to occur safely. Difficult for a court go behind that.

7 hours ago

KJBarKaren Barlow

by CDUlawschool

@

Right then RT @leigh_howard No decision till tomorrow arvo it seems folks. #Qantas

5 hours ago

leigh_howardleigh_howard

by CDUlawschool

There are at least 15 people appearing. This will go all night. #Qantas

7 hours ago

leigh_howardleigh_howard

by CDUlawschool

Appln under s 424(d). Never been used in history. Govt could have jumped this step by declaring grounding void under s 431. #Qantas

8 hours ago

AequoEtBonoAngus M-a-c-i-n-n-is

by CDUlawschool

So Qantas’ go-to silk, Harry Dixon SC, was in Melbourne today? What a lucky coincidence!

7 hours ago

leigh_howardleigh_howard

by CDUlawschool

Minister: seeks to terminate ALL industrial action, not just lockout. #Qantas #ausunions

(Continued)

I didn’t really expect that my recent posts about the somewhat indeterminate aims of the “Occupy …” protest movement would result in a lively discussion thread about what I imagined was the entirely uncontroversial proposition that the limited liability corporation is by and large not only a positive thing but a key element of the modern capitalist economy.  For Socialist Alliance types and at least one ultra-libertarian, it isn’t uncontroversial at all (though for almost diametrically opposing reasons).

I was discussing this with my CDU Law School colleague Geoff James over lunch a couple of days ago when he mentioned a corporate regulatory policy idea that I hadn’t heard before.  Given that the corporation is a “fictitious legal person”, Geoff said, why not take the analogy to its logical conclusion and legislate a mandatory corporate lifespan?  After (say) three score years and ten all corporations would be compulsorily liquidated and their assets and business undertaking sold.

Apparently this was a policy of the old Australia Party founded in the 1970s by eccentric transport tycoon Gordon Barton.  Be that as it may, it’s an interesting if fairly radical idea.  I’d be interested in the reactions of the diverse Troppo readership, especially the economists among us.

In a sense, it would bring the corporate structure more in line with that of trusts, which once had a maximum life span (perpetuity period aka rule against remoteness of vesting) delightfully defined as a “life in being and twenty one years”.  That equitable description gave rise to the equally quaint drafting convention of maximising the duration of any trust instrument by providing for vesting on the death of the “last currently living heir of Her Majesty Queen Elizabeth II”.  Sadly, most states and territories have now legislated for a more prosaic perpetuity period of 80 years or thereabouts.

Legislating for a maximum corporate life span might also be argued to enhance the prospects for business growth and productivity through harnessing Schumpeter’s notion of “creative destruction” as the principal engine of capitalist growth and renewal.  However it may be a bit more complex than that, as Arthur Diamond discusses (extract over the fold).

(Continued)

Celebrity lawyer Chris Murphy

Twitter is a much more useful social media tool than I had imagined. I’ve been using it for several weeks now to produce the daily links to interesting legal stories here at CDU Law and Business Online. Contrary to previous impressions, I’ve discovered that you can conduct a reasonably effective conversation despite the 140 character limit on any one “tweet”.

One example is an exchange I had yesterday with Sydney celebrity lawyer Chris Murphy. Readers may recall that I wrote a slightly equivocal (though mostly positive) article some weeks ago about Murphy and his noble fight against alleged ongoing police harassment of Muslim lawyer Adam Houda.

After clearing the air on that front we discussed a more general legal issue: the effect on juries of the Internet and the propensity of some jurors to use Google to do some amateur sleuthing into the case before them:

CDUlawschool
@chrismurphys Said I may have misjudged and indeed think I have from reading your tweets for a few weeks. It was a hook to a story

CDUlawschool
@chrismurphys Although I still find Cunneen events disturbing.

chrismurphys
@CDUlawschool Cuneen? Known ID gives evidence for thug footballer gets u a drink, pulls out a chair, wouldn’t be a sexual assaulter!!!

chrismurphys
@CDUlawschool she talked in a public speech about a man who later won his appeal. Crown should shut up & roll out the evidence.

CDUlawschool
@chrismurphys Appellate judges resist prej effect of public discussion even if juries cant. Why prosecutor silence rule but def lawyers not?

Keep reading at CDU Law and Business Online>>