In answer to my post earlier today about the data retention bill, frequent commenter Patrick Fitzgerald made a rather important point about the data retention zeitgeist:
Embrace the panopticon Ken, buy yourself a webcam, attach it to your head and stream live 24×7. Plus for good measure get a fitbit with GPS and stream that live 24×7 too – that way at least your friends will know as much about you as your enemies, and you may kill at least one enemy through boredom ;)
As it was, I had already made pretty much the same point earlier in the day on Twitter in answer to a tweet from FOI guru Peter Timmins linking an article about the US situation regarding metadata retention.
Data security and retention are very much in the news at the moment. Indeed the Abbott government’s data retention bill is currently being debated by the Senate and will inevitably be passed given that the Coalition did a deal with Labor whereby the latter will support it in return for inclusion of a fairly weak requirement for a warrant before law enforcement agencies can access journalists’ metadata. Richard “Justinian” Ackland published an article yesterday that highlighted the deficiencies of the warrant regime in the current bill.
I can modestly claim to have been ahead of the zeitgeist on this issue, having made a submission and given evidence before the Senate Standing Committee on Legal and Constitutional Affairs way back in 2010, when they were considering the bill which eventually gave rise to the current journalists’ qualified privilege or immunity in relation to disclosing confidential sources when giving evidence in court. As I argued at the time:
Amidst all the depressing events of last week’s failed leadership coup in the Northern Territory, there was at least one redeeming feature, at least for constitutional lawyers. Adam Giles’ refusal to resign as Chief Minister, despite losing the confidence of the majority of his party room (albeit in a dodgy unofficial meeting), gave rise momentarily to an occasion for exercise of the Administrator’s reserve powers.
Chief Minister “elect” Willem Westra van Holthe asserted to the assembled media at Government House that Giles’ refusal to sign a resignation letter was just a momentary glitch in his plans to be sworn in as the new Chief Minister by Administrator John Hardie. They would simply need to prepare an “instrument of termination” for the Administrator to sign.
Unfortunately for van Holthe and his majority coup plotters, the Administrator didn’t agree. He indicated (no doubt after consulting the Solicitor-General) that it was a matter for the Legislative Assembly. In the circumstances that existed last week, that was clearly the case. The conventions of responsible government indicate that an Administrator/Governor should only exercise his reserve powers by dismissing a Chief Minister/Premier/Prime Minister contrary to the incumbent’s advice and appointing a successor in his or her place if it is completely clear that the incumbent has lost the confidence of Parliament and that the claimed successor now enjoys that confidence. Usually that will require the contenders’ numbers to be tested on the floor of Parliament. However, what happens if the claimed successor is able to produce clear written evidence that he/she now enjoys the support of a majority of members of Parliament? Wouldn’t that be sufficient justification for exercise of the reserve powers?
Of course that wasn’t the situation in the Northern Territory last week. Van Holthe had the support of only nine out of the 25 members of the Legislative Assembly i.e. a clear majority of the governing party but not of the Parliament itself. Accordingly, there is no doubt that the Administrator was correct in his interpretation of reserve powers. The only way to resolve the situation was for the contenders to test their support on the floor of the Assembly. The Administrator no doubt would have exercised his reserve power to recall the Legislative Assembly urgently had the CLP Parliamentary Wing not resolved its leadership dispute (in however bizarre manner) a few hours later.
But what if the situation had been that Giles was refusing to resign but it was clear that the other 13 government MLAs supported the claimed successor van Holthe? Could the Administrator properly have terminated Giles’ commission and appointed van Holthe without a Parliamentary motion of no confidence? It appears that the question has arisen in several Commonwealth nations with a Westminster system, including Malaysia, India and Fiji. However, the most entertaining example of such a situation is one that occurred in Nigeria. It suggests that the Queen and her advisers do not necessarily regard a no-confidence motion as being an essential requirement for dismissal. The story is recounted by prominent constitutional law academic Anne Twomey:
The legal misadventures of some colourful Darwin characters in A Territory Testamentary Tale at Parish McCulloch website.
For some time I have been posting specifically legal articles/posts over at the bloggy part of the Parish McCulloch, Barristers & Solicitors website. I cross-post some of them here at Club Troppo.
I have just posted quite a long article there which discusses yesterday’s High Court decision Minister for Immigration and Border Protection v SZSCA in the context of current moves by the Abbott government to reshape radically the Migration Act provisions concerning asylum seekers and refugees. I don’t think I’ll cross-post it here because it’s fairly technical. Nevertheless some Troppo readers may well find it interesting.
IPKats love a tweet
The lecture will be delivered (in Melbourne Sydney and Brisbane) by Jeremy Phillips. Jeremy (or more exactly a fictional and “notorious” cat: the IPKat) has three times, been named as one of IP’s “Fifty Most Influential People “. The IPKat is widely read, wide ranging and fun.
The lectures Big Picture theme could be of interest to many:
In the face of accelerating changes in the make-up of the world’s economic, cultural and political structure, IP rights face a stress-test. Pulled back into the past by legislative intent and judicial precedent, they are propelled forwards by new technologies, increasingly specialised laws and creative business structures. And they are subject to the constants of the need for justice, the requirement of legal predictability and the demand of due process. Is there a Big Picture: a vision that can be shared by legislators, IP owners and their lawyers and attorneys? If so, what does it look like?
The lecture will be streamed , Mon 17/11/2014 at 6:15 PM – 7:45 PM. Attendance is free, but booking is required : Melbourne (12 November), Sydney (17 November) and Brisbane (18 November)
I don’t have a particularly high opinion of Senator Nova Peris. I certainly don’t think Prime Minister Julia Gillard should have effectively sacked long-standing and well regarded Senator Trish Crossin to get her into Parliament. Moreover, even if it was reasonable to aim at getting new blood into the Senate and do so by introducing a capable Aboriginal woman, retired Territory Minister Marion Scrymgeour would have been a much better bet.
However, none of those factors justifies publication of the story about Senator Peris’s romantic liaison with international superstar Ato Boldon, at least with the slant it was given. Let me be clear. I certainly don’t take the Pollyanna attitude that the salacious emails should not have been published at all. Whatever some may assert, I suspect there wouldn’t be a single newspaper editor anywhere in Australia who would have refrained from publishing those emails if he/she had them and had obtained them lawfully (or at least without any specific knowledge about how they were obtained).
If they had merely been published as an avowedly prurient exercise in boosting tabloid circulation (as gossip magazines do on a weekly basis), I would have no problem at all. However, the Northern Territory News attempted to dress up its publication with an element of “public interest” which is almost certainly spurious.
Monica Attard reports in The Hoopla on a very recent speech by Russian President Vladimir Putin in which he forcefully puts his country’s side of the current conflict with Ukraine. I was especially struck by this observation:
The US, [Putin] said, had instigated a “coup d’etat” in February to oust Ukraine’s pro-Russia President Viktor Yanukovich when he reversed his decision to sign up to a trade deal with Europe rather than Russia.
The stance echoes a fundamental point of a long post I wrote a few months ago on the Ukraine situation. More generally, Attard puts the broad situation in its Great Power context:
It looks as if prominent and obsessively determined euthanasia campaigner Dr Philip Nitschke may be in trouble again. He has already had his right to practise medicine suspended and is facing Medical Board disciplinary proceedings arising from a situation a few months ago where he apparently provided telephone and email advice to a non-terminally ill man, seemingly about suicide options. The man subsequently successfully committed suicide using the so-called “peaceful pill” Nembutal. His relatives later found the correspondence. I will return to this situation later.
The current situation, by contrast, seems morally if not legally straightforward. In August this year Dr Nitschke assisted a 71-year-old man named Martin Burgess to upload the above video onto Nitschke’s YouTube channel. Burgess appealed for someone (anyone) to help him by donating supplies of Nembutal to allow him to kill himself. Burgess was in the latter stages of terminal rectal cancer, was in frequent pain and not being effectively supported by palliative care services, and was pretty clearly not suffering from any mental disability which might have impaired his decision-making process. He made an entirely rational decision to kill himself. He died last week. To be blunt, I would have made exactly the same decision had I been in his situation. See the slightly longer video below where Burgess describes his situation (try to ignore the irritating background noise).