Bob Collins

I had a bit of a cyber-chinwag on Twitter this morning with a couple of other legal academics about the rather obscure topic of the torts of maintenance and champerty.

Melissa Castan ‏@MsCastan

Regulating champerty RT @GdnLaw: Litigation funders become big business, enjoying booming market in UK http://gu.com/p/37py4/tf #lawstudents

4h Kate ‏@katgallow

@MsCastan is champerty still a thing?

2h CDU Law School ‏@CDUlawschool

@katgallow @MsCastan 1/2 I once got interloc injunction against entire NT Cabinet for mtce & champerty. Very enjoyable.

9:05 AM – 26 May 12 via web · Details

2h Kate ‏@katgallow

@CDUlawschool @mscastan I bet! Thx for link

Maintenance and champerty are explained in this article at NSW Lawlink:

Maintenance is the ancient common law crime and tort of assisting a party in litigation without lawful justification. Champerty is an aggravated form of maintenance, in which the maintainer receives something of value in return for the assistance given. As stated above, the crimes and torts of maintenance and champerty were recently abolished in New South Wales.¹

My reference to a case I ran where we obtained an injunction against the entire Northern Territory Cabinet is worth expounding in a bit more detail. ²

I acted for the NT ALP for quite a few years before a short and eventful stint in Parliament myself.  As part of that informal retainer I conducted numerous matters for then Opposition Leader Bob Collins, including the one described below.  I’ve written here before about Collins’ much more recent suicide when facing charges of child sexual abuse, but this story comes from happier times in the late 1980s when Bob was riding high.  Mind you, not long after these events he was deposed as Labor Parliamentary Leader and, after a short stint in the political wilderness, was elected as a federal Senator for the Northern Territory from which he went on to a successful career (in political terms anyway) as a Minister in the Hawke and Keating governments.

The maintenance/champerty case arose when CLP Chief Minister Ian Tuxworth was deposed in an internal coup by Member for Nightcliff Steve Hatton.  Tuxworth was making a dreadful hash of the Chief Minister job, and Collins was making mincemeat of him in the Legislative Assembly and media.  The dominant CLP government could foresee its massive ascendancy being eclipsed if they didn’t act decisively to stop the rot.  So they did a deal whereby Tuxworth apparently agreed to go fairly quietly in return for the government agreeing to fund a defamation action he wanted to run against Collins.

Somewhat unwisely as it transpired, Tuxworth and a couple of other CLP politicians made veiled public references to the existence of this deal.  It occurred to me that this might amount to maintenance or even champerty (torts I very vaguely remembered from law school) and Colin McDonald QC agreed, so we commenced proceedings seeking damages for those torts against the entire Cabinet as individuals, supported by an interlocutory injunction to restrain funding while the substantive matter was decided.

The application came on on short notice one morning before Nader J in the Supreme Court. I was junior counsel to McDonald QC  An entertainingly theatrical irascible judge, Nader J’s first words on seating himself were:

“Mr McDonald! Mr Parish!   This isn’t another one of your blatantly political cases, is it?”

The answer to His Honour’s rhetorical question was fairly obvious given that the plaintiff was the Opposition Leader and was sitting large as life in the back of the court along with federal Minister and famous Labor fixer Senator Graham Richardson who was coincidentally in town at the time and keen for some light entertainment; and that the defendants were the recently deposed Chief Minister and every single current member of Cabinet. Nevertheless, being well used to Nader J’s usual courtroom demeanour, Colin simply responded mildly:

“No, not at all Your Honour. It’s simply a normal matter where we are seeking an interlocutory injunction in the Court’s equitable jurisdiction, and where we will convince Your Honour on the evidence that there is a serious question to be tried and that the balance of convenience between the parties favours the grant of an interlocutory injunction.”

The tone of proceedings rapdly improved from there.  We got our injunction and both Collins’ maintenance/champerty proceedings and Tuxworth’s defamation action were settled on terms not to be disclosed not long after.

Later that day at a very long and jolly lunch, Richo expressed his unbounded admiration for Colin McDonald’s chutzpah under pressure in denying with a straight face that the case was political, saying: “I don’t think I’ve heard a bare-faced lie as good as that even in Parliament.”

Craig Thomson addresses Parliament (note Andrew Wilkie's expression)

More often than not these days, even day-to-day political “footie commentary” is purveyed with greater depth and perceptiveness by the blogosphere and alternative media than in Australia’s sadly diminished mainstream mass media.  The Craig Thomson soap opera is a case in point, although Thomson’s Parliamentary performance on Monday was rated equally poorly by both sectors.

Strategically and no doubt wisely abandoning any pretence of academic objectivity, UNSW’s Mark Rolfe gave Thomson’s performance a one star rating at the G8 universities’ site The Conversation:

Thomson’s statement showed him to be a man lost in politics, lashing at enemies with the usual tactics of push and shove because that’s how the game has been for him and others in this sorry little saga.

Thomson’s case about conspiracy was at best circumstantial and at worst composed of the kind of supposition that political players often make about enemy moves and intentions, even if it was more outlandish than usual. He expects us to believe this line of thinking, when we are actually incredulous at his story.

The Health Services Union has been decidedly unhealthy for more than 12 years. Thomson has been in the thick of it and has thrived in the melees, beginning with victory in 2002 in a struggle that involved allegations of defamation and gross misbehaviour. Why would Williamson be trying to destroy Thomson at the same time that he was supporting Thomson’s federal election campaign in 2007 and 2010 with election funds subject to an AEC investigation?

Still, Rolfe wasn’t going to let Tony Abbott and his Coalition cronies off scot-free either:

It’s the same game with the current fight in NSW Liberals which is spilling into the public square. For all the po-faced reactions of Abbott & co., we know they’d adopt Labor’s same arguments if in the same position. This is just the adversarial nature of the political game.

Meanwhile, Tom Cowie at Crikey provided profiles of some of the extensive list of characters on Thomson’s sh*t list.

Cowie’s Crikey colleague Bernard Keane was marginally more positive about Thomson’s performance:

Every political cycle has rare moments when an otherwise disengaged electorate tunes in to politics. The Godwin Grech moment in 2009 was one such. Leadership stoushes are another. Political journalists understandably ride them for all they’re worth. Craig Thomson’s defence yesterday was one such moment.

It was, even Thomson’s few defenders would admit, not exactly up there with Nixon’s “Checkers” speech in successfully wriggling out of a tight spot, although, like Nixon, Thomson offered plenty of detail about his early career in order to, well, humanise the figure behind the scandal.

But Thomson managed to throw up plenty of confusion, especially about the operation of Fair Work Australia in the conduct of its investigation, and offer a narrative of persecution by internal enemies that, oddly, exactly complements one of the stories the Coalition has been running in relation to the affair, that there’s something innately crooked about unions. And it’s only a few weeks since Tony Abbott smeared the whole industry superannuation sector with his reference to “gravy trains” and “venal” union officials.

Sydney University legal academic Anne Twomey appears to be much less than impressed by Thomson’s claim that the Australian Electoral Commission’s report had somehow both exonerated him in relation to spending half a million dollars of HSU funds on getting elected and also discredited the scathing Fair Work Australia report which precipitated this latest episode of the soap opera:

First, the ‘donations’ that allegedly funded the employment of staff to raise Mr Thomson’s profile in the electorate of Dobell did not require disclosure because they occurred before the date he was pre-selected as a candidate for the seat in 2007. As he was a new candidate and had not run in the previous election, donations to support his campaign did not count until he was pre-selected. The vast bulk of the HSU money that was allegedly used to support Mr Thomson’s campaign, as set out in the Fair Work Australia report, occurred before he was pre-selected. Equally, his electoral expenditure only counted if it occurred during the election period (from the issue of the writs to polling day). So any expenditure that occurred earlier than this did not need to be declared by Mr Thomson.

The second issue is the high disclosure threshold, which in 2007-8 was $10,500. While the amount of all donations needs to be recorded by political parties and by donors in their returns to the AEC, they do not need to be ‘particularised’ unless a single donation is over the threshold amount. For example, expenditure of $4,826.99 to establish a Campaign Office would have to be disclosed in the overall total of donations made by the HSU or received by the ALP, but didn’t have to be specifically itemised. Hence the AWC cannot tell whether or not it has been disclosed, because all it has is a global figure.

On the other hand, an earlier article by Twomey points out that Parliament does not have the constitutional power to expel Thomson, although that would occur by operation of law in the event of criminal conviction and imprisonment satisfying the criteria in s 44(ii) of the Australian Constitution.  However that prospect seems highly unlikely before the excruciatingly distant expiry of the current Parliament next year by the effluxion of time.  Even the extent of its power to suspend him is uncertain:

It is unclear whether the power to suspend continues to apply to conduct which does not fall under the Standing Orders and does not amount to an ‘offence against a House’ as defined in s 4 of the Parliamentary Privileges Act.¹ …

However, when questions of power arise, it is ultimately for the courts to determine whether an institution of government, including a House of the Parliament, has the capacity to exercise a power.

As a general principle, the courts try to avoid interfering in internal parliamentary matters and treat them as ‘non-justiciable’ (i.e. something that they cannot or will not determine). However, when questions of power arise, it is ultimately for the courts to determine whether an institution of government, including a House of the Parliament, has the capacity to exercise a power….

In the case of the Federal Parliament, where the power to suspend is determined by reference to the scope of the powers of the House of Commons at the time of federation, the courts have not so far been called upon to intervene. They might agree to do so, however, if the challenge related to the power to suspend, rather than the merits of the suspension.

The exercise of such a power might be challenged on the ground that either (a) it was beyond the power held by the House of Commons at the time of federation (which is unlikely); or (b) that the power has been impliedly altered since by legislation or constitutional implications. For example, it might be argued that since the enactment of the Parliamentary Privileges Act 1987, the power to suspend is limited to ‘offences against the House’ and could not be exercised in relation to events that took place before the Member was elected and did not interfere in any way with the free exercise of a House of its authority or functions. It might also be argued that the constitutional implications derived from the system of representative government preserve the right of a Member of Parliament to exercise his or her vote in the Parliament on behalf of his or her constituents unless disqualified from doing so by legislation or the express provisions of the Constitution.

But of course these events aren’t really about removing Thomson from Parliament, however much Tony Abbott may posture to that effect.  They’re about prolonging and exacerbating a public aura of chaos and decay around an increasingly punch-drunk Gillard government, so that its reputation with the electorate remains at historic lows through until next year’s election.  And you’d have to give short odds on Abbott continuing to succeed in that aim, absent enough ALP pollies mustering the intestinal fortitude to eat a KRudd sandwich, however nauseating, in the interest of their own political survival.

In a more general sense, however, Bernard Keane argues it’s really all just about the soap opera:

What it definitely tells us is that the media and their audiences are far more comfortable with personalities and scandal than the “real issues” everyone says they prefer in political coverage.

This finally yielded some meaning for an otherwise meaningless saga. What does the Thomson affair tell us? That unions are corrupt? That we’re a lynch mob ready to drop the pretence of due process? What it definitely tells us is that the media and their audiences are far more comfortable with personalities and scandal than the “real issues” everyone says they prefer in political coverage.

The Thomson saga is, of course, Important, no doubt; the government, after all, Could Fall; big issues are at stake, such as The Future Of The Union Movement. The saga is not for trivialising. And yet it now looks nothing less or more than a torn-from-the-headlines crime drama missing only the characteristic doink! of Law & Order, the much longed-for transformation of boring politics into prime-time drama.

Thus has minority government served us; its hothouse atmosphere encouraging the hypertrophy of the more grotesque organs of the body politic, each to be placed on display by the media. It’s not so much that we’ve become judge, jury and executioner, but judge, jury and showman, reproving and castigating that which we’re delighted to display. That’s entertainment.

Nevertheless, looking at the bright side, the Gillard government might not be able to organise a root in a brothel (at least in PR terms), but Craig Thomson probably can (unless it was someone else).

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.

In Gypsy Jokers, the majority decided that the Court itself was perfectly capable of ensuring that justice was done; there was no need for either the party or counsel to be told. Also now see K-Generation Pty Ltd v Liquor Licensing Court ², which holds to similar effect that keeping evidence secret from a party and their counsel does not of itself offend basic 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.

More recently, the High Court has struck down aspects of more general “anti-bikie” legislation in South Australia ³ and New South Wales ⁴ as offending the Kable doctrine, which forbids State parliaments from vesting in State courts powers or functions apt to undermine public confidence in the integrity, impartiality and independence of those courts. However, both Acts contained “secret evidence” provisions similar to those held valid in Gypsy Jokers and K-Generation, and the Court did not comment adversely on those aspects of the legislation. It seems safe to conclude that no constitutional challenge to the validity of similar provisions, including the ASIO regulations affecting refugees, is likely to succeed.

However, the practical plight in which these refugees find themselves is much more dire in human rights terms than that of bikie gangs, for whom many Australians will have scant sympathy despite the evidently draconian nature of these laws. “Rough justice for roughnecks” is a slogan familiar from old Phantom comics and which encapsulates the prevailing public attitude. The situation of refugees in immigration detention is very different, as legal academic Spencer Zifcak explained in The Australian last week:

LAST night, about 50 people in Australia went to sleep not knowing whether they will ever be released from immigration detention.

These people have committed no crime. They have spent more than a year in detention seeking to demonstrate that they are refugees. At the end of that process, they have been found to be genuine refugees.

That is, their case that they would be persecuted if they returned to the country from which they fled has been accepted.

They had the fair and legal expectation that they would then be released so as to pursue new lives either in Australia or some third country that would accept them for resettlement.

Yet they are still locked up.

This is because, after having been determined to be genuine refugees, these 50 individuals received adverse security assessments from ASIO. Those with such an assessment must be detained, normally pending their deportation. They have an entitlement to appeal to the Commonwealth Administrative Appeals Tribunal against their continuing detention. But they cannot win.

This is because refugees who are assessed adversely by ASIO are not, in law, permitted to know the evidence on the basis of which the assessment is made. Nor are they permitted to know the reasons for it.

The considerations that guide the process of adversely assessing a person are not found in the ASIO Act. They are found in regulations made under the act. But the regulations are not made publicly available.

Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence. We know only that a person may be adjudged as a risk if that judgment is consistent with the requirements of security.

Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them.

Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them.

Under national security information legislation, the federal government may require that security-related evidence be withheld from an applicant. It may also require that the evidence be withheld from the applicant’s legal representatives.

Similarly, judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that the person has been determined to be a security risk.

That is why, following the High Court’s deplorable decision in al-Kateb, detention may be indefinite, perhaps for life. In a very real sense, this is Kafkaesque.

Zifcak’s “Kafkaesque” label is fair enough in those circumstances, but he does not propose a workable solution to the evident public policy dilemma. Presumably at least some of the adverse ASIO assessments correctly conclude that the persons concerned represent real and serious security threats to Australia. They can’t just be released into the community if they have significant international terrorist or organised crime links, nor can sensitive intelligence information be disclosed to them that may put sources, methods or even lives at risk.

On the other hand, and despite the High Court’s rather minimalist conception of the fundamental requirements of justice, there really is a serious need for a better solution that balances the competing public policy considerations of national security and individual justice. As Justice Brennan observed many years ago in in an early Adminstrative Appeals Tribunal decision on similar “secret evidence” provisions (Pochi):

There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Nevertheless, if an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view – slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

Certainly oversight of ASIO by a parliamentary committee, which is the only real accountability constraint currently imposed, is nowhere near enough. Like ASIO itself, politicians will inevitably err on the side of extreme caution when it comes to matters of national security and terrorism. No-one wants to take a human rights-oriented approach in case a new September 11 or Bali bombing should occur as a result.

So what is to be done?

Human Rights Commission President Catherine Branson advances some constructive proposals in yesterday’s Age newspaper:

The Australian government has an indisputable responsibility to safeguard our national security. That is our right and what we expect and require as Australian citizens and residents. However, it is my firm belief that this sovereign duty can be realised simultaneously with the protection of human rights. And that is a belief I share with many others, including: the United Nations High Commissioner for Refugees; numerous domestic and international experts in security and refugee law; the majority of the joint select committee on Australia’s immigration detention network (which handed down its report in April of this year); and the governments of many other democracies around the world.

We must find solutions to the circumstances of people who have received adverse security assessments. And we must find them fast. The human costs being paid make not doing so untenable. …

So what can be done to create a fairer system? The simple answer to that is that there are several models and options to explore. Comparable jurisdictions, such as Britain, Canada and New Zealand, have developed more transparent and equitable systems that could guide our own approach.

And various recommendations for our domestic context have already been made – for instance by the parliamentary committee to which I have referred.

These recommendations include allowing refugees to challenge the merits of an adverse security assessment in the Security Division of the Administrative Appeals Tribunal. This would simply extend to refugees a right that already exists for Australian citizens and others. And it would not require public disclosure of sensitive intelligence.

In other countries appeals processes use special advocates who are security cleared and bound by stringent confidentiality requirements so that they can receive certain types of classified information on behalf of people deemed to pose a risk. Without such a review process, it is impossible to detect if a critical error has been made – such as a mistake over identity or a failure to identify false intelligence perhaps created maliciously.

Consideration could also be given to introducing a system of graded risk assessments. This would allow for the management of a specific risk according to how serious it is. Such an approach would probably find that a good number of people assessed to pose a risk could nonetheless safely live in a community setting with appropriate conditions or controls. These kinds of arrangements have been adopted in other countries.

As the New Zealand Court of Appeal has said, it is obvious that all risks to national security don’t call for equal treatment, and it is also apparent that different risks can be identified and distinguished.

Australia can and must do better. I firmly believe that we have the maturity, compassion and experience to protect human rights, as we must under international law, while at the same time safeguarding our national security. It will require strong political will and conviction. But there is too much at stake for us to do nothing.

Update – See Sinclair Davidson over at Catallaxy on this topic, as does Chris Berg at ABC Unleashed.

Rose Ashton-Weir and her mum

The twitterverse erupted in response to this story in yesterday’s papers about a student suing her former school Geelong Grammar for compensation, saying that it provided inadequate support to enable her to do sufficiently well on her final exams to be accepted to study law at Sydney Uni:

Seeking compensation in the Victorian Civil and Administrative Tribunal, she said her final secondary school score was too low to study law at the University of Sydney.

Of her time at Geelong Grammar, she said: ”I didn’t ever feel I was getting the support I needed to really excel.”

Ms Ashton-Weir boarded at the school in 2008 and 2009 but finished her secondary studies at a TAFE college in Sydney. She is in the first year of a double degree in arts and sciences at the University of Sydney.

Her mother, Elizabeth Weir, is also suing the school for lost income and other expenses.

She said she gave up her chocolate fortune cookie business – which she had expected to make $450,000 over three years – because her daughter moved from Geelong to live with her in New South Wales.

Some might cynically observe that some lawyers in hindsight might have preferred to miss out on the ‘benefits’ of this career, but generally there have been pretty harsh assessments of the idea of litigating a school over this sort of issue.  I can’t resist pointing out that someone alerted the media to this story, and my bet is that it was the girl or her parents.  Given the response, I wonder whether she now considers that was a good decision?

It is not difficult to imagine why schools would be considered a target of litigation.  They are charged with important tasks of educating children and preparing them for life and further study.  Schools have a more and more involved role in the lives of students.  And particularly where the schools in question are private or independent schools, the whole relationship is complicated by a commercial element.  Finally to the extent that the school relationship is a legal or contractual one (again, most often with independent schools), the relationship is a complicated one – the person who is required to adhere to the rules and who receives the benefit of the school’s services is often not the person that has a legal contractual relationship with the school.

From a dispute resolution point of view, the position of the school in society has shifted (with some exceptions).  Once upon a time, it was very much governed by a sense of community or overriding relationship between the school, children and parents.  Now increasingly, people are more attuned to expecting particular outcomes, particularly where they are paying substantial fees for the service of educating a child.  However, the overriding relationship still exists.  Despite the very good work that many schools do, it can be difficult to determine just where particular responsibilities fall when there is a dispute.

As an example, one of the most common substantive complaints that I have heard levelled against schools is the failure to protect a child from bullying.  This is often argued to support a reduction or remission of fees that should be payable.  However conceptually this is a difficult element to regulate.  How far is it reasonable to expect a school to go to prevent bullying?  A school might have limited resources for supervision in the playground and bullying is, by its nature, an activity which seeks secrecy.  And the actual wrong in this situation is the behaviour of another student or students.  It is not unheard of (and more common than you would expect) for a child identified as a ‘bully’ (or more particularly his or her parents) to raise their own complaints about the treatment of their child.

In truth many of these cases ultimately don’t proceed as (unlike in the Geelong Grammar case) the child is normally the only one who would be able to give evidence of the fact.  And most parents acting in the interests of their children would not want to put their child through the ordeal of giving evidence in court.  So such cases are only likely to proceed somewhere like VCAT where the rules of evidence are relaxed enough to allow evidence to be permitted from parents or where the child at the centre of the story is old enough to agree.

This doesn’t guarantee that the child will be protected from harsh treatment, and one is reminded of the case of a negligence claim against a school where a young girl had been raped on an overseas excursion.  The hearing prompted outrage when the barrister acting for the school questioned the ex student at length about the way that she dressed and put into evidence surveillance footage of her going to night clubs and parties (upon her return from the trip).

This path towards increasing litigation and formal dispute resolution in areas which have traditionally been ill-accustomed to it can also be seen in increased litigation regarding clubs and associations and other community organisations.  I don’t expect the trend to reverse.  And it inevitably means that schools and community organisations are forced to protect themselves by becoming less flexible and more procedurally rigid.

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. …

I met with some colleagues recently for coffee. We chatted about lots of stuff. Family. Friends. Fun. Work. Then this comment, like an electric shock, threw me off my path and back into the shadow of my lawyer shame. “I like the research. I like the structured arguments. But you know the bit where we make out the other person to be something they’re not so our client gets what they want. I don’t like that”.

Am I just a “liar liar” who doesn’t even know it?

I was speechless as my mind yelled “Are you for real? Is that the game we’re playing?”. I felt a bit like I was in suspended animation, unable to do or say anything. And with that one comment, all my lawyer shame was back.

Is that the game I’m playing? Is informing someone of the factors that are influential and persuasive, and advising them to present those and minimise and work on their weaker factors, is that as dishonest as that other comment felt. Have I been completely duped by this industry? Am I just a “liar liar” who doesn’t even know it?

And then this “Nice people can’t be barristers, because they just can’t do their job properly”. Another speechless moment. Really? REALLY? Some of my most open and wholehearted conversations have been with my barrister friends. I believe they are nice people and are completely equipped to do their job properly.

So, in discomfort I sit. Once again. It’s dark here in the shadow of shame.

Speaking for myself, I sometimes have analogous feelings about being a lawyer, although I wouldn’t quite label them as “shame”. In my professional practice as a lawyer before coming to CDU as a legal academic, I assiduously avoided practising in the areas of criminal and family law. There were several reasons for that personal policy.

Family law especially in my observation is an area where both parties more often that not are out to exact retribution on each other, sometimes at any cost including the truth. I can certainly understand how people reach that stage of mutual bitterness and recrimination, but I don’t want to spend my working life coping with people in such a state of mind. I know there are others who are better equipped temperamentally to do so.

Victims and their families in criminal matters often report having been as traumatised by their experience with the adversarial legal system as by the original crime.

The reason for my aversion to criminal law practice is slightly different. I worked for a short time as a probation and parole officer for juvenile offenders after my graduation in law. I fairly quickly noticed that I didn’t have all that much sympathy for many of my young clients. I could intellectually recognise that many of them had experienced trauma and disadvantage that made their behaviour at least understandable. However my emotional response was that most of them basically deserved the fate the courts had meted out to them, and in quite a few cases should have been more harshly sentenced in my view (even taking into account criminology research about recidivism and the effects of imprisonment on first offenders).

I didn’t think that was a productive mindset to have in dealing with young offenders, and my conviction was later reinforced when my own immediate family experienced a particularly nasty crime that continues to echo in our lives. I simply would not be able consistently to apply the level of coolness and objectivity that proper legal representation requires. I had no problem achieving that in the areas of public law and commercial litigation where I mostly practised.

The other main reason for my aversion to practising both in family and criminal law was that I was aware that representing a party in those areas very commonly required aggressive cross-examination of the other side. Victims and their families in criminal matters often report having been as traumatised by their experience with the adversarial legal system as by the original crime. There’s no way of completely insulating victims (or alleged victims) from such experiences, because the presumption of innocence and a defendant’s right to a fair trial requires a reasonably extensive ability to test and challenge adverse evidence.

However I remain to be convinced that justice usually requires the sort of nasty, aggressive cross-examination that one often sees in criminal matters, especially though not exclusively from defence counsel. It’s not quite shame, but I’m certainly not proud to be a member of a profession which continues to permit and even aggressively defend the continuation of such practices with fairly minimal constraint except where children or other “vulnerable” witnessses are involved.

Is a witness whose evidence is exposed by cross-examination as containing inconsistencies more worthy of being believed than a glib, intelligent, well-rehearsed liar?

It’s not even clearly demonstrable that such techniques assist in getting to the truth, or that either judges or juries are very good at detecting the truth when they hear it in any event. Is a witness whose evidence is exposed by cross-examination as containing inconsistencies more worthy of being believed than a glib, intelligent, well-rehearsed liar? Is someone temperamentally able to withstand the pressure of aggressive cross-examination more credible than someone who can’t? As Barbara Tversky and George Fisher argue:

Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues. Juries are the fact-finders, and credibility issues are to be determined by juries. The issue then arises whether juries are equipped to make these determinations. Expert testimony may not be helpful. Indeed, since the very act of forming a memory creates distortion, how can anyone uncover the “truth” behind a person’s statements? Perhaps it is the terrible truth that in many cases we are simply not capable of determining what happened, yet are duty-bound to so determine. Maybe this is why we cling to the sanctity of the jury and the secrecy of jury findings:

We can put such questions before the jury entirely without fear of embarrassment, because the way the jury resolves the questions and, in all likelihood, the soundness of its answers will remain forever hidden. Perhaps the allure of the black box as a means toward apparent certainty in an uncertain world has tempted us to entrust the jury with more and harder questions than it has the power to answer.

The courts’ reliance on witnesses is built into the common-law judicial system, a reliance that is placed in check by the opposing counsel’s right to cross-examination—an important component of the adversarial legal process—and the law’s trust of the jury’s common sense. The fixation on witnesses reflects the weight given to personal testimony. As shown by recent studies, this weight must be balanced by an awareness that it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

I’m not arguing that either jury trials or the adversarial system should be abolished. However, given the well-documented limitations on the ability of that system to detect truth reliably, surely there is a persuasive argument for greater limitations on the ability of counsel to cross-examine witnesses aggressively and thereby inflict surplus trauma on already traumatised people. Maybe the “shame” label is justified if we as a profession fail constructively to address such issues in light of the findings of modern psychology (including the research of Jonathan Haidt about how humans reach moral judgments).

Ken argues that there is something that doesn’t seem quite fair about Nick D’Arcy’s “strategic” decision to voluntarily declare himself bankrupt and so avoid paying the court order for compensation (and costs) made in favour of Simon Cowley in relation to injuries that Cowley suffered when D’Arcy assaulted him in 2008.  He suggests that perhaps the liberal forgiveness of debts which occurs under Australian law should be amended somewhat where the bankruptcy is commenced voluntarily to avoid this sort of peverse incentive to file for bankruptcy.

I disagree.  But I find it more interesting the way that this narrative suggests that D’Arcy has acted in an immoral way.  Just what is our morality of debt?

Nick D’Arcy is clearly an unpopular young man.  Most of the coverage of his decision to file for bankruptcy and the consideration of the AOC as to whether this should disqualify him from the Olympic team has allowed considerable room for comment from people who consider that bankruptcy allows him to avoid this debt, most notably Cowley’s lawyer.  See for example here, here and here.  Avoidance in this context has a particular moral weight.

High profile cases don’t necessarily make good law.  The fact that D’Arcy is a medical student from a wealthy family doesn’t help the way that the whole thing looks.  And I am constantly surprised by just how many people there are who are willing to dishonestly exploit the letter of the law to their own financial advantage.

However, as I said in the comments of Ken’s post, there are plenty of cases where so-called ‘strategic bankruptcy’ is in fact an entirely reasonable and sympathetic situation.  While bankruptcy has lost some of its stigma over time, the vast majority will avoid it if they can.  In my experience in practice doing a lot of insolvency work, I can think of only one client I advised who acted like the decision to become bankrupt was an easy one.

Even more tellingly, the main thing that differentiates voluntary bankruptcy from involuntary bankruptcy in this discussion is the feeling that the debtor is ‘getting away with it’.  That sentiment is an undeniably penal and retributive idea that a debtor should literally pay, even if they can’t afford it.  Accompanying that thought is that because he may be wealthy in the future or because his family is wealthy, then they should take on the moral obligation to pay this debt, even though they have no legal obligation to do so.

Bankruptcy law attaches no moral distinctions in processing of debts.  In most cases, the law conforms to the principle of pari passu, the idea that creditors shall share in the recovered assets of a bankrupt equally in proportion to their debt.  It also makes almost no distinctions as to which debts shall be released on bankruptcy.  The old provisions which privileged tax debts in some ways have now largely been removed.

Nonetheless, most people have a sense of morality about debts which are “more payable” than others.  Acting for particular creditors, I have many times experienced debtors who continue to pay a particular debt after their legal obligation to do so has been removed.  Sometimes this is for commercial reasons – the supplier needs to be maintained, so their old debt is still honoured.  However, sometimes this is purely for moral reasons.  Primarily this happens with debts owed to family members, friends, or people who we feel “deserve” to be paid.  I have seen it with people who continue to pay schools, trusted tradespeople or health professionals or other people that we can put a face to.  In contrast, though I often have clients who assert that paying their debts is a moral issue, I have never seen anyone continue voluntarily to pay a bank, finance company or the taxation office as a moral issue.  I doubt that anyone would have the same questions about D’Arcy’s escape from his obligations if he were escaping a debt owed to a bank after a failed business venture.

Expanding personal credit (particularly credit cards) has chased bankruptcy into the middle class.  Business related financial failure is largely destigmatised.  However, there is still a considerable stigma attached to personal financial failure for a lot of people.  And for all that people say that people are free and clear after discharge, this is simply not true for most people.  A credit rating trashed by bankruptcy is a lasting and significant hurdle for most people trying to get back on their feet.

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:

D’Arcy declared himself bankrupt, and AOC boss John Coates revealed legal action was sought then to see if he deserved his place on the team.

“(Chef de Mission) Nic Green told me he wanted to get legal advice to see if bankruptcy constituted misconduct, and meant bringing the team into public disrepute,” Coates said.

“It was not. …

It needs to be kept in mind that D’Arcy has already served a significant period of disqualification from the sport for his assault on Cowley.  Despite the fact that he has evinced little or no contrition for his thuggery, D’Arcy has served his time for the substantive assault.  It’s reasonable to suggest that the double jeopardy principle should be regarded as just as applicable in the sporting sphere as in criminal law.  Accordingly, D’Arcy could only be properly re-suspended if entering voluntary bankruptcy could be treated in itself as a further instance of misconduct.  It appears that the AOC’s legal advice was that it couldn’t be so regarded, and so D’Arcy had to be selected if his trial performances warranted it.  They did and so he was selected.

However, I wonder whether the legal conclusion is necessarily so clear-cut.  Certainly voluntary bankruptcy in itself could not be viewed as misconduct, but mightn’t it be relevant to examine all the surrounding circumstances? If a person enters voluntary bankruptcy as a result of a truly dire financial situation from which there is no hope of recovery then that is one thing, but if they make a calculated strategic decision to enter bankruptcy merely to avoid paying a judgment debt might it not be reasonable to take a different view?

Should he be permitted cynically to take advantage of his current short-term “poverty” to avoid paying Cowley?

I confess I haven’t examined the case law (if any) on the point but it’s a reasonable question on first principles.  D’Arcy is a 24 year old medical student whose father is a wealthy surgeon.  No doubt his current income and asset position is meagre, but equally without doubt he’ll be very well off in the fairly near future and well able to pay Cowley his justly awarded damages.  Should he be permitted cynically to take advantage of his current short-term “poverty” to avoid paying Cowley?  It appears that his Trustee in Bankruptcy thinks this is pefectly OK:

SWIMMER Nick D’Arcy made numerous attempts to reach an arrangement over debts totalling $800,000 before declaring himself bankrupt, his trustee said yesterday.

The trustee, Robert Whitton, said D’Arcy petitioned his own bankruptcy when it became apparent Simon Cowley intended to force it.

D’Arcy was dumped from the 2008 Beijing Olympic team after an altercation with Cowley in a Sydney nightclub.

He was given a 14-month, 12-day jail sentence fully suspended after conviction for inflicting grievous bodily harm.

Cowley, who was left with a shattered cheekbone, was awarded civil damages of $180,000 this year.

With costs and interest he is now owed about $380,0000.

D’Arcy, a 24-year-old medical student, filed for bankruptcy on November 30, listing his father and Cowley as creditors.

Mr Whitton said yesterday that there was no doubt about the veracity of the debt owed D’Arcy’s father Justin, a Sunshine Coast surgeon.

“His parents funded his defence,” Mr Whitton said.

“It (the loan) was properly documented over time.”

Mr Whitton said it was very unlikely that he would withhold D’Arcy’s passport, preventing him from contesting the 2012 London Olympics.

He said a successful Games could bring D’Arcy financial reward which could then allow payment to creditors.

D’Arcy would be required to make payments to creditors after he reached an after-tax income of $47,000.

“That wasn’t an offer, that was an insult.”

But was D’Arcy’s “offer” a serious one or just another cynical manoeuvre in a game to avoid payment orchestrated by the lawyers paid for by his surgeon dad?  Cowley’s lawyer is in no doubt about the answer:

Mr Cowley’s lawyer Sam Macedone told Channel Nine on Tuesday night that bankruptcy was “just a way of walking away from this whole mess and this debt and this judgment that he owes”.

“I would have thought that he would have had the courage at least to try to speak to Simon and try and negotiate something with him, whatever it was,” he said.

Mr Macedone, who did not respond to questions from the Daily, told AAP yesterday that an offer of $25,000 had been made.

“Out of $380,000, he offered $25,000,” Mr Macedone said.

“That wasn’t an offer, that was an insult.”

Perhaps it’s time to revisit and reform the rules for voluntary bankruptcy.  As academics Ian Ramsay and Cameron Sim observed in a recent paper, voluntary bankruptcy is becoming an increasing middle class phenomenon:

Between 1990 and 2008 there was a 261% increase in the number of personal insolvencies in Australia. We suggest one important aspect of this increase is that
Australian personal insolvency has become an increasingly middle class phenomenon.

If even a significant proportion of these are cynical strategies like D’Arcy’s gambit, maybe the rules need to be changed. Certainly another very recent case involving a son of a WA politician suggests this sort of thing is not an isolated aberration.

[T]he liberal approach prioritises the concept of a ‘fresh start’ for debtors.

Ramsay and Sim observe that Australia’s bankruptcy laws are at the liberal end of the international spectrum:

The function of personal insolvency laws depends upon what their ultimate goal should be. Australia has been placed in the liberal category of bankruptcy jurisdictions. These jurisdictions are seen as offering levels of debt forgiveness with both a high degree of certainty and relative haste. This is in contrast to many other jurisdictions, which have been categorised as taking either a conservative or moderate approach to debt forgiveness, under which there is an absence of debt forgiveness provisions, or the offer of debt forgiveness exists but is tempered by great uncertainty as to whether it will be granted. …

[T]he liberal approach prioritises the concept of a ‘fresh start’ for debtors. Accordant with this observation, Australian courts have viewed the intention of Australia’s bankruptcy laws as serving a fair distribution of bankrupt’s assets among creditors, as well as allowing bankrupt debtors to start afresh. Consequently, personal insolvency laws reflect attempted reconciliation of two competing goals: a fresh start for debtors and protection of the interests of creditors (together with equality of distribution for creditors).

While I have no major problem with bankrupts being released after 3 years with a “clean slate”  where they’ve been bankrupted on a creditor’s petition (the currrent legal regime), perhaps we should have a different regime when dealing with (strategic) voluntary bankruptcies.  I suggest that in that situation a discharged voluntary bankrupt should be required to continue contributing one-third of his/her income and assets acquired at any time within (say) 10 years after discharge. That would still allow a debtor to make a “fresh start” but prevent lawyered-up middle class debtors from taking advantage of short-term impecuniosity to avoid their creditors (who in D’Arcy’s case consisted only of his own parents and his victim Cowley).

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.

In the present case Mr Laundess had been happily married for seven years and has four small sons. The evidence reveals that about a week before 18th February, 1973 his wife informed him that she wanted him to leave the home in Grenfell as she no longer loved him. The surprised Mr Laundess asked if there was another man. No, lied the wife, she had merely fallen out of love with him. In an understandably bewildered state Mr Laundess was shortly afterwards informed by a friend that a local milkman named Keys had been carrying on with his wife. Mr Laundess confronted Keys, who admitted it. Mr Laundess then confronted his wife with his information, whereupon she confessed her past misconduct with the milkman, said she was madly in love with the milkman, could not live without him, etc. etc. She told Mr Laundess that he would have to leave home, and he subsequently found his bags had been packed for him. He was understandably confused. Of course, he could have ordered his wife out of the house; but there were four small sons in need of a mother’s care. Considerations such as these, added to the understandable bewilderment and confusion, led him to accept his wife’s direction and he moved out.

He felt, of course, some sense of injustice. He approached Keys and complained of the milkman’s intrusion into his marriage. He pointed out the possible disadvantage to the children, and he asked Keys if Keys was really going to take on all the responsibilities that the wife was asking him, Mr Laundess, to abandon. Keys replied that he would give the situation a week’s trial and let Mr Laundess know!

This statement by Keys that he would take the wife for a week, apparently on appro., no doubt deepened the husband’s gloom. He felt that he – at least he – was getting the wrong end of the stick. He brooded over a few drinks with his brother on the night of 17th February. Thoughts turned to resolve and resolution to action; and about 3am on 18th February, Mr Laundess and his brother arrived at the matrimonial home.

They entered the house, and Mr Laundess entered the bedroom. He found the wife and the milkman both naked in bed together. In Mr Laundess’s own words, ‘I lifted him up and got into him’. When he finished getting into the milkman, Mr Laundess told him to get out. The milkman raised a minor objection to appearing in the Grenfell streets at night totally unclad. The husband, becoming irritated at the thought of the milkman’s sense of propriety being offended by these sartorial or thermometric considerations, happened to notice a rifle on the top of the wardrobe, which he remembered was loaded, perhaps not inappropriately, with rat-shot. He grabbed the rifle and asked the milkman to leave. The milkman had by then donned some clothes and commenced to move off.

Perhaps by another piece of wild justice … the pellets hit the wife’s legs and not the milkman’s.

All this time, the wife — as some wives, tend to do in these situations — had remained noticeably audible. She had put on a dressing gown and now decided to leave with the milkman. At this stage the husband, becoming even more irritated at the slow rate of the milkman’s departure, at his wife’s wailings and at her pursuit of the milkman, decided to fire some rat-shot at or near the milkman’s feet to speed him on his way. At that very moment, however, the wife had run up near the milkman; and perhaps by another piece of wild justice (and partly due to the husband’s inexperience at shooting from the hip) the pellets hit the wife’s legs and not the milkman’s. This development did not cause the wife to fall silent. The husband’s brother then took the rifle from him. The milkman helped the wife into the milk truck which was parked outside and, getting his priorities into an order that may not have instinctively occurred to all persons, drove first to the police station to demand that the husband be charged and only then to the hospital, where the devoted surgical staff removed eight pellets from the skin of the wife’s lower legs. Since that night the wife’s mother has visited her in Griffith and I am informed that there is some possibility that the wife with the children may move to the mother’s home at Katoomba; and there was a suggestion that the milkman’s ardour has cooled.

It is in the light of that background that it falls to this court to determine an appropriate sentence on the two charges preferred against the husband — one, a summary charge of assault on the milkman and the second, an indictable charge of ‘Malicious’ wounding of the wife. The learned magistrate felt that an appropriate penalty for the husband assaulting the milkman was one month’s imprisonment with hard labour.

The affair between the wife and the milkman had been carried on for some time before the husband knew of it. The husband was acting as father, husband and provider while the milkman was clandestinely the wife’s lover. When spoken to by the husband the milkman replied in terms which were on any analysis contemptuous of the husband and indeed contemptuous of the wife. It appears to me that if a man elects to intrude into another’s marriage, putting the welfare of the children as well as that marriage at peril, he must expect a hiding from the husband. On any realistic basis this milkman appeared to have asked for what he got. In my opinion the circumstances surrounding this assault on the milkman are such as to reduce its seriousness below the level which attracts a prison sentence, even one to the rising of the court.

TO THE PRISONER: In lieu of the learned magistrate’s penalty you are fined the sum of twenty cents, which you must pay to the Clerk of Petty Sessions, Cowra, within seven days; otherwise imprisonment with hard labour for twenty-four hours.

As to the shooting it must be said that rat-shot from a .22 rifle from some distance away is scarcely lethal. There was clearly no intention to do serious injury to any person nor was any serious injury done. The incident occurred at a time when your mind was cursed by domestic affliction. And it must also be remembered that it was the milkman and your wife who created this explosive situation which you in an understandable excitement merely detonated. You do not present any threat to society; you are conceded by the police to be an honest and hard worker; and you have already spent fourteen days in Bathurst Gaol as the result of the magistrate’s order. Compassion blends with responsibility in inducing me to defer passing sentence on you entering into a recognisance yourself in the sum of $400 to be of good behaviour, for a period of two years and to be liable to be called up at any time for sentence for any breach committed within that period. That recognizance may be taken before a magistrate.

As to the appeal, I formally say that the appeal is dismissed, the learned magistrate’s conviction and findings are confirmed, but in lieu of the learned magistrate’s penalty of one months’s [sic] imprisonment, you are fined the sum of twenty cents, in default imprisonment with hard labour for one day.

[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.

One might reasonably argue in relation to the taxi vouchers aspect that evidence has only become available in the last 24 hours suggesting that alleged harassment victim and erstwhile Liberal Party member James Ashby’s claims may well be false.

However the substance of Ashby’s sexual harassment allegations has been known for at least a week or more, and yet journalists have not bothered to analyse the allegations against relevant legal standards.  Perhaps they might claim if challenged that the sub judice convention inhibits any such analysis, yet that isn’t the case even on Parliamentary sub judice conventions let alone the more free-wheeling ones media outlets apply to themselves when it suits them. Legendary UK judge Lord Denning explained the principles in Attorney-General v Times Newspapers Ltd [1973] Q.B. 710:

It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influencing the judge,the jurors, or the witnesses or even by prejudicing mankind in general against a party to the cause…. Even if the person making the comment honestly believes it to be true, still it is a contempt of court if he prejudges the truth before it is ascertained in the proceedings.

We must not allow trial by newspaper or trial by television or trial that any medium other than the courts of law.

But in so stating the law, … it applies only when litigation is pending and is actively in suit before the court…. There must appear to be a real and substantial danger of prejudice to the trial of the case or to the settlement of it. And when considering the question, it must always be remembered that besides the interest of the parties and a fair trial or a fair settlement of the case there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make their comment on such matters. The one interest must be balanced against the other….

Our law of contempt does not prevent comment before the litigation is started nor after it has ended. Nor does it prevented when the litigation is dormant and is not being actively pursued…. No person can stop comment by serving a writ and let it lie idle…. it is active litigation which is protected by the law of contempt, not the absence of it.

In a situation where proceedings have only just been issued and won’t come to trial for a year or more (if at all), and will be heard by a judge sitting alone not in front of a jury, there is very little risk of prejudicing a fair trial and very little risk of contempt proceedings from a judicious tentative legal analysis of the allegations. Media editors must know this, so one can only conclude that it doesn’t suit their purposes to allow either the facts or the law to get in the way of a juicy, circulation-boosting scandal.

As far as I can see from the known facts (or rather allegations), Ashby’s harassment case faces a major hurdle in establishing that Slipper knew or ought to have known that his alleged sexual advances were “unwelcome”.  Although the legal requirement to prove this has been subjected to significant criticism, it remains an essential element of sexual harassment under the Sex Discrimination Act (Cth).  Section 28A reads:

Meaning of sexual harassment

             (1)  For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

                     (a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

                     (b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

          (1A)  For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

                     (a)  the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;

                     (b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

                     (c)  any disability of the person harassed;

                     (d)  any other relevant circumstance.

             (2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Feminist criticism of this requirement has been extensive and cogent, as this 2003  journal article by Gail Mason and Anna Chapman explains:

It went against the ‘very essence’ of sexual harassment, namely, the ‘inability of the victim to speak out because of fear of retaliation from the more powerful harasser’. Writing in 1985, Scutt pointed out that ‘very few women would ever be in a position to prove sexual harassment if one of the conditions is that she must have made it obvious beyond any reasonable doubt to the respondent that the sexual activity was unwelcome’. To Scutt’s way of thinking, the position of women in relation to men was generally one of ‘relative powerlessness’, and thus any unequivocal rejection of sexual harassment would require ‘the possession of a degree of self-esteem or socialisation not generally found in women’.

Nevertheless, proof that the “harasser” knows or ought to know that such advances are unwelcome remains a legal requirement without which a sexual harassment case cannot succeed.

Ashby’s relevant allegations against Slipper (at least as recounted by the apparently well-connected Murdoch journo Steve Lewis) are:

In a series of text messages Mr Slipper sent Mr Ashby in February he told the staffer, “if you are interested we could be closer”.

But his attempt to forge a closer relationship was rejected by the adviser, who joined the Speaker’s office in December.

He also asked Mr Ashby: “You getting roks (sic) off. Pity,” during an exchange of text messages sent on February 1 this year. A few minutes later Mr Slipper wrote via email: “U want something more? U brillianmt (sic) at massages.”

‘Rejected advances led to sudden deterioration at work’

However when Mr Ashby – who told Mr Slipper he was homosexual before commencing employment – said he only wanted a professional relationship, the Speaker’s tone allegedly changed.

He told Mr Ashby he should “in future” arrange all communications through another staffer, Tim Knapp, as Mr Slipper said he “cannot guarantee availability”.

In other words, it would appear that Slipper desisted as soon as Ashby made it clear that his advances were unwelcome.  Of course, one should not discount the power differential between the Speaker and a junior employee, but the tenor of Lewis’s story hardly suggests that Ashby was in any sense overawed or intimidated.  Indeed Slipper comes across more as pathetic than predatory.

Nevertheless, although Slipper may well have a good legal defence, in the court of public opinion presided over by the Lords of the Media he’s a walking corpse.

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.

She initially won a defamation action against the Fairfax newspaper group and its conservative columnist Janet Albrechtsen but later in 2005 had her damages massively reduced after the NSW Court of Appeal found that several of the allegedly defamatory statements about O’Shane were covered by the defence of fair comment:

66 At the heart of imputation (c) was that the respondent allowed her subjective attitudes to affect her judgment. In my view, an opinion to that effect might reasonably have been based on the dismissals of at least the charges other than the Kanaan charges, in the light of the respondent’s anger expressed by her statements as to police harassment and inappropriate action and advertising suitability and her approach of human values; taking them together, the hypothetical opinion-holder might reasonably have concluded that there was anger and bitterness influencing the respondent’s decision-making. …

68 Imputation (f), that the respondent, as a magistrate, is incompetent, was an opinion which might reasonably have been held, because that description might reasonably have been given to a judicial officer who allowed the attitudes earlier identified to affect the judicial officer’s decision-making. Similarly as to imputation (g) and (h); the hypothetical opinion-holder might reasonably have come to the view that the respondent departed from the objectivity and impartiality necessary for a judicial officer.

69 In my opinion, therefore, the defence of comment was made out as to imputations (c) and (f), (g) and (h).

Internet publication Crikey also recently catalogued magistrate O’Shane’s alleged judicial misdeeds:

1999: O’Shane dismisses attempted murder charges against notorious drug dealer, Michael Kanaan. He has been chased by police into White City Tennis Centre in Rushcutters Bay, where several shots have been fired and a policeman wounded. O’Shane describes police as “stupid, reckless and foolhardy” to give chase, and suggests they were harassing him and his three companions.

Kanaan (who is now serving two life sentences) had executed a rival drug gang leader, Danny Karam, the week before. Six months earlier, he had killed two strangers in a drive-by shooting.

NSW DPP, Nicholas Cowdery, ignores O’Shane’s decision and brings charges ex-officio. Kanaan is eventually found guilty of malicious wounding and jailed for 12 years.

2000: The Police Association makes a complaint about O’Shane to the Judicial Commission in relation to Kanaan comments.

2001: O’Shane is investigated by Judicial Commission after she claims some women fabricate rape charges. Her comments are made while rape charges are pending against Indigenous leader Geoff Clark.

Sept 2004: O’Shane discovers her husband of 19 years is having an affair with their next-door neighbour. She allegedly waves a knife, threatens him, and throws his clothes on the neighbour’s doorstep at 1.30 am. The woman takes out an AVO against her. O’Shane’s husband also seeks an AVO then withdraws it. Police bring assault charges, then drop them. O’Shane steps down from the bench while she is treated for depression.

Oct 2005: O’Shane dismisses charges of offensive behaviour against a drunken pedestrian who tells police, “youse are fucked”. She claims there are no longer “community standards” in relation to such behaviour. She awards the man $2600 in costs, on the basis he should never have been arrested and charged, because this sort of language is “to be expected on George St at that time of night”.

2006: O’Shane is investigated by Judicial Commission after she locks up a defendant in a civil case for alleged contempt of court.

2007: There are calls for NSW Parliament to sack O’Shane after she dismisses charges against a 51-year old man for spitting at transit police at Redfern Station. O’Shane accuses the officers of assault and fabricating evidence, despite CCTV footage showing the man making threats.

March 2010: O’Shane dismisses charges against a drunken man for assaulting police, and says the police were to blame. She also accuses them of “fabricating” and “colouring” their evidence. Constables Scott Williams and Daniel Ayling have given evidence in court that the man called them “fucking pigs”.

January 2012: O’Shane dismisses charges of assault against an African Australian who has allegedly punched a paramedic. She questions whether the paramedic is racist after hearing evidence that the parademic called the refugee a “filthy pig” for spitting on the ambulance floor. She refuses to hear corroborating evidence from the ambulance. NSW Premier Barry O’Farrell asks the Judicial Commission to investigate, saying O’Shane’s behaviour “fits a pattern”.

Lastly, ANU legal academics Michael Eburn and Ruth Townsend recently conducted a study into magistrate O’Shane’s comparative record of reversal on appeal:

Between 1999 and this year, the NSW Supreme Court has been asked to review decisions of O’Shane in at least 56 cases, including 16 criminal cases. In at least three of these cases, she was criticised for refusing to allow a prosecutor to call further witnesses and, in effect, placing herself in the role of counsel for the defendant rather than an impartial judicial umpire.

In the latest decision, Justice Peter Garling noted the Supreme Court had given very specific directions on how O’Shane should apply the law but again her conduct ”fell short of the required standard of a trial judge acting properly and … involved a manifest error of law”.

The Supreme Court has found O’Shane got the law wrong in 14 out of those 16 criminal cases. In the two cases in which her decisions were upheld, one was a private prosecution that did not involve the police and in the other the defendant was herself a police officer so the police were, in effect, on both sides.

In the other 14 cases, the police or Director of Public Prosecutions had brought a case against a private citizen and then appealed when O’Shane dismissed the case. In one case she dismissed a charge even though the accused had entered a plea of guilty.

In different cases, Supreme Court judges have said:

O’Shane ”did not comprehend the real basis of the prosecution case or the significance of the evidence before her”;

That she dismissed a case on the basis ”the prosecution had not proved a fact that it did not have to prove” and that her decision was based on reasons that were ”either undisclosed or incomprehensible”;

That her conduct ”bore little resemblance to what was required by law”, she ”failed to comply with statutory procedures … and denied the prosecutor procedural fairness” and failed ”to give reasons as required by law”.

That she dismissed a charge ”without proper regard to applicable law and practice”;

That ”with all proper respect to the learned magistrate … it seems to me that there was a clear failure of procedural fairness in the way in which her worship dealt with the prosecution and with the prosecutor”; and

That she ”used intemperate language in a way that inappropriately denigrates the evidence of the police”.

Where the Supreme Court finds there has been a legal error, the matter is often returned to the magistrate to reconsider the case and to apply the law as explained in the Supreme Court’s decision. In eight of the 14 appeals upheld against O’Shane, the matter was returned to the local court with orders it be finalised by a different magistrate.

In one of those cases there had been two appeals – O’Shane dismissed the charge, the prosecution appealed and the Supreme Court upheld the appeal and returned the matter to the local court where O’Shane again dismissed the charges.

The prosecution again appealed and the matter was returned to the local court with an order that it be heard by another magistrate.

O’Shane was the first Aboriginal Australian barrister and first Aboriginal woman to be appointed the head of a government department in Australia.

Like other high achievers, such as Marcus Einfeld, she runs the risk her achievements will be overshadowed by what appears to be increasing personal failings in her judicial role. Her conduct on the bench must cause the community to doubt whether she is capable of performing her task without ”fear or favour”. Any victim of a crime would have to be concerned if their matter was listed before her because of her repeated failure to afford procedural fairness to the prosecution.

Judicial removal in NSW is governed by the Judicial Officers Act 1986 (especially section 41) and the Constitution Act 1902, especially section 53 which relevantly reads:

53 Removal from judicial office

(1) No holder of a judicial office can be removed from the office, except as provided by this Part.

(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.

As you can see, the criteria are very similar to section 72 of the Commonwealth Constitution which of course governed the situation of High Court Justice Lionel Murphy examined in the LWZ202 study guide. Do you think that either ‘misbehaviour’ or ‘incapacity’ (probably more the former than the latter) is made out on the above facts? If you have time you might also like to read john Waugh ‘A question of capacity: the case of Justice Bruce’ 9 Public Law Review 223 (reproduced in PDF here). Note however that Justice Bruce’s case was one of incapacity rather than misbehaviour.

Anyway at the same time as being too quick on the trigger if the thing ‘speaks for itself’ they’re amazingly deaf to statistical evidence, which, one might have thought speaks for itself. Here’s an intriguing story of a chess cheat who used Fritz – a chess engine to go from being a 55 year old who played at a rating strength of 1900 odd to someone who was beating Grandmasters and playing at rating strengths of 2600+. Not only that, but he played a comically engine driven game. A basic rule of good (human) play is to simplify the position when you’ve got it won to minimise the scope for mistakes. A chess engine will rank such moves as bad ones – because there are moves which are better all things considered. But for us poor souls relying on our primary cognitive apparatus and not the secondary cognitive apparatus available to computers – they’re actually the best moves if you want to win the game – they maximise your chance of winning the game.

In a won position the cheat proceeded to play incredibly sharp moves again and again – including approaching a time control.

You can read the story here.  You can also play the game on that page! It’s fun.

Some months after the event the District Attorney’s office began investigating Allwermann for embezzlement of the prize sum of DM 1,660 – (about $850). GM Rainer Knaak was consulted, and the Fritz expert (Knaak works for ChessBase) confirmed that all the games were almost completely reproducible, move for move, with Fritz5.32 and the Fritz Powerbook ’99. Even a small transposition error in the PowerBooks was faithfully reproduced in one of the games. In the meantime Hartmut Metz had located an electronics supplier who had sold Allwermann the equipment he probably used to transmit the computer moves. According to the store owner Allwermann had insisted on a modification that would allow him to enter four-digit codes in the hand-held radio transmitter. He had also purchased the very smallest receiver possible, one that could be completely concealed in his ear and hidden behind his long hair.

However, after many months the DA’s office dismissed the case due to “lack of sufficient proof”. A speaker expressed the view that “moves by good chess players often coincide with those of a computer”, and apart from that there was no direct evidence – nobody had seen or documented the use of electronic devices during the tournament. The Bavarian Chess Federation, on the other hand, took drastic action and barred Allwermann from participation in further tournaments.

Before this was enforced Allwermann had played in one more tournament, closely watched by large numbers of spectators and journalists. He scored exactly what is to be expected of a player who is below the 2000 Elo mark.

* Note: this is based on my LLB which I began over three decades ago. Perhaps we’re in legal nirvana by now.

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.

This is really silly. In fact Lateral Economics is not the publisher of this ‘book’.  Our client was Research Australia which published it on their website (pdf). It’s true they distributed a few copies to the conference where the report was launched. But it’s not a ‘book’ and it wasn’t ‘published’.  And it would be a lot cheaper and a lot safer as far as preservation goes if the State Library downloaded the ‘book’ from the website where it reposes and archived it rather than spending a lot of money sending silly letters to people.

I got a similar letter from The Australian National Library about a number of other Lateral Economics studies all of which are freely downloadable on the internet.

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.

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:

After the CUR24 case commenced, I cannot recollect discussing child sex cases with him in any way except perhaps in passing. If I bumped into him in the street, he might mention that he had another case. I have never discussed CUR24 with him at all.

I can remember Mr Walsh being present at the swearing-in and at the morning tea ceremony and I recollect him telling me at the morning tea ceremony that he was particularly there because the new judge, like him, was a solicitor.

I have considered Mr Walsh’s claims about what I said to him at the morning tea but I am unable to agree that I used the words attributed to me, apart perhaps from greeting him on the basis that he was appearing for another paedophile, something that he then confirmed. That greeting was a friendly one. I am absolutely certain I did not tell him that I had a view that all paedophiles should be put on an island and starved to death.

It is my memory that some years ago, during the hearing of the paedophile reference at the Royal Commission into the New South Wales Police service, a psychologist was asked by the Commissioner, Wood J, what he thought could be done to rehabilitate paedophiles. My recollection is that he expressed the view that they should all be placed on an island. I have no memory that he considered the island should be a desert island or that they should be starved to death. My memory may be an imperfect one and I have not had access to any Royal Commission transcript to refresh my memory.

This view, understandably enough, was rejected by the Commissioner. I did not take this man to be making a serious suggestion that paedophiles should be exiled. Rather, it seemed to me that he was expressing a view that rehabilitation was very difficult. He was engaging in a form of hyperbole. I feel confident that Wood J did not have a view that the witness had a literal view that paedophiles should be marooned.

It may be that I recounted to Mr Walsh something of what this man had said but I cannot ever recollect this man talking about starving them to death. That is what makes me confident that I did not at any point express such a view, which I would regard as abhorrent.

I think I may have said, “Greg, I heard someone say that what should be done with paedophiles is to put them all on an island”, but I doubt that I said this as the second thing I said to him when I met him. It seems probable to me that we said more to one another than what he has deposed to, because my experience of social occasions is that there is a great deal of small talk in even the briefest of conversations.

I also have never expressed an opinion to Mr Walsh that all persons charged with paedophile offences are guilty. It is perfectly obvious that many of those who are charged are found not guilty and in the case of SKA v the Queen (reported in [2009] NSWCCA 186; [2011]HCA11), I expressed the view that the accused should not have been convicted at all. This view was rejected by the Court of Criminal Appeal and the sentence I imposed on SKA was doubled.

I do not know how Mr Walsh came to the conclusion that I made the comments he attributes to me. I also do not understand how he could possibly believe that I had a personal view that pedophiles should be put on a desert island and starved to death. Whatever was said by me to him was said in passing at a noisy social function. It was not a considered statement of opinion, such as might be expressed by someone at a seminar or in a newspaper article.

It seems probable to me that he has misunderstood what I did say. It seems clear that he did not at any time during this brief conversation ask me what I meant or whether I was serious in what I said. At no point did he raise with me my views on sentencing. If he was really concerned by what I said, I would have expected him to have raised it with me.

As far as I can see, the psychologist expert witness’s alleged opinion about paedophiles’ rehabilitation prospects seems a little more pessimistic than the research would justify.  Even if correct, most people would probably regard His Honour’s proposed punitive regime as reported by Walsh as a tad harsh.  Surely a parachute drop of dry bread and water every couple of days would need to be part of the sentence.  Anyway, whoever’s recollection of the morning tea is correct, we can be very confident that CUR24 isn’t looking forward to being tried before Finnane J.  In fact one suspects an appeal may now have been filed.

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:

The earliest appointments to the APS, apart from those State public servants transferred to the national government under the Australian Constitution when the Commonwealth was formed on 1 January 1901, were made under s 67 of the Australian Constitution:

Section 67 is still occasionally used, but it was not very long before the inaugural government of the Commonwealth introduced a Public Service Bill which was adopted in 1902. It was overtaken by another Act in 1922. As already noted, Australia’s third and latest Public Service Act dates from 1999 …

Samuel J attempts to enlist s 6 of the Public Service Act 1999 to support his argument.  It relevantly reads:

(1)  All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.

             (2)  Subsection (1) does not apply to:

                     (a)  persons engaged on an honorary basis; or

                     (b)  persons engaged to perform services in the Australian Secret Intelligence Servic

Samuel J argues:

Well the Parliament has otherwise provided, firstly with the Public Service Act 1922 and presently with the Public Service Act 1999.

However the problem with that argument is that on its face s 6 does not purport to provide exhaustively for the appointment of all officers of the Executive Government.  It only provides for those employed “to perform functions in a Department or Executive Agency“.  Manifestly that doesn’t include someone like Dr Henry who is being employed to work directly for the Prime Minister and not within any Department or Agency.

You would normally have expected someone in Dr Henry’s position to have been employed as a Ministerial Consultant under Part II of the Members of Parliament (Staff) Act 1984.  However, s 4 of that Act simply provides that a Minister “may” engage consultants under it.  It does not oblige a Minister to do so (in contrast to the situation with people being employed to work within a Department or Agency).  I don’t know why the government chose to rely on its constitutional power under s 67 to employ Dr Henry rather than employ him under the Members of Parliament (Staff) Act 1984.  If I was to take a guess, I suspect it has something to do with superannuation implications, which might have been adverse had Dr Henry been employed under the Members of Parliament (Staff) Act 1984.

Whatever the specific reason, there is no basis for concluding that it is something sinister, nor for a persuasive argument that appointment under Constitution s 67 is constitutionally invalid.  The High Court would be most unlikely to accept an argument that the multifarious Acts of Parliament authorising the employment of officers of the Executive Government in various capacities somehow together impliedly manifest an intention to cover the field exhaustively such that the direct constitutional executive power of appointment by the Governor-General in Council should be regarded as spent.

Refugee advocates mounted a somewhat similar argument  during the Tampa crisis in 2001. They argued that the Migration Act should be regarded as an exhaustive code regulating immigration, such that the previous constitutional/prerogative executive power to deal with aliens should be regarded as spent or in abeyance.  Refugee advocates argued that the Migration Act should be held to be an exhaustive code governing immigration.  It did not provide a power to refuse entry and send the Tampa asylum seekers to Nauru, and therefore no such power existed.  The Full Court of the Federal Court rejected the argument in Ruddock v Vadarlis and the High Court refused leave to appeal.  French J (as he then was – now Chief Justice of Australia) held:

The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to abrogation, modification or regulation by statute. …

The question is whether the Act operates to abrogate the executive power under s 61 to prevent aliens from entering into Australia. There are no express words to that effect. It is necessary then to look to whether by implication it has that effect. It is not necessary for this purpose either to determine the full extent of the executive power or the full effect of the Act upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-citizens on it from landing upon Australian territory.

In considering what is the implied intention of the Act and in particular the provisions referred to earlier, it is necessary to have regard not only to the general approach, supported by authority, to the question whether executive power is taken to be abrogated by statute, but also the importance to national sovereignty of the particular power in question. In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away. …

It is no more likely that the High Court would decide that legislation governing public sector employment somehow impliedly manifests an intention to abrogate executive power conferred on the Governor-General by the Constitution itself.

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

7 hours ago

sallysaraABCSally Sara

by CDUlawschool

3 Australian soldiers killed, 7 wounded in shooting by attacker dressed in Afghan National Army uniform. Shah Wali Kot, Kandahar province.

6 hours ago

CDUlawschoolCDU Law School

Meanwhile: “Microsoft buys Skype, attacks reverse engineer with bogus takedown notices and florid language” tiny.cc/ki6ii >

10 hours ago

CDUlawschoolCDU Law School

tiny.cc/shggd “no one at Qantas to blame, not workers or management..faced with horrid reality of competitive global airline business

10 hours ago

CDUlawschoolCDU Law School

FWA s424 tiny.cc/y4y3j – would end union action as well as lockout. Probably that’s what Joyce was aiming at – high stakes poker

11 hours ago

profsarahjSarah Joseph

by CDUlawschool

Govt applying under s424 to FWA to terminate all industrial action at #Qantas. #Albanese

11 hours ago

CDUlawschoolCDU Law School

From 8pm AEDT on 31/10 Qantas will lock out all employees covered by the new ALAEA, TWU and AIPA agreement. bit.ly/23SFRn

11 hours ago

CDUlawschoolCDU Law School

Qantas: total chaos and massive self-inflicted losses. For the latest, check Crikey’s aviation guru Ben Sandilands bit.ly/sjQkNu

11 hours ago

peterjblackPeter Black

by CDUlawschool

qantas media release about the lock-out bit.ly/tESBh6

11 hours ago

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

by CDUlawschool

And while I’m tweeting FWA sections, this is why you can’t sue #qantas for any loss you suffer: bit.ly/t0eEG3

11 hours ago

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).

Schumpeter’s central message is that the process of creative destruction describes the form of competition in capitalism that is capable of dramatic improvements in the quantity and quality of our lives (Diamond, 2004). …

In Capitalism, Socialism, and Democracy, Schumpeter had a lot to say about his process of “creative destruction,” not all of which is given equal emphasis by those using the phrase today. Here, I will distinguish two accounts of the process of creative destruction: Schumpeter’s original ‘big-is-better’ account, and a more recent ‘small-is-better’ account. The process of creative destruction, in both Schumpeter’s original, and in the more recent account, is a process in which technological advance is the main source of economic growth and improvements in the quality of life. In both accounts, a significant part of the incentive to produce leapfrogging innovations is the prospect of achieving monopoly profits. Traditionally the main source of monopoly profits would have been through patent rights. But currently a full account of monopoly profits would also include network externalities as a source (as with eBay and Microsoft).

Beyond what the two accounts share, Schumpeter’s original ‘big-is-better’ account also claimed that large, monopoly firms are the most able and the most likely to produce new, leapfrogging innovations. This version is the one usually, but not always1, associated with Schumpeter’s own views. The ‘small-is-better’ account identifies smaller, often start-up, firms as the most likely source of new leapfrog innovation. I argue elsewhere (2004) that the ‘small-is-better’ account is what the vast majority of authors have in mind when they apply the phrase “creative destruction” to competition among computer and internet related firms.

Schumpeter’s claim was that the new process or product that results from a dynamic leapfrogging innovative competition, is more important in understanding capitalism, than the static standard model of price competition that emphasizes unconcentrated markets as the means to lowering prices, where the goods and the technologies are assumed constant. If one set of rules (standard price competition) maximized one good result (lower prices for consumers); and another set of rules (creative destruction) maximized another good result (new products), then we would have to measure the utility produced by each of the good results, which is very hard to do. What if the creative destruction is not only best at producing new products, but also, in creating new processes, is also best at lowering prices for consumers? Then we would know the essential fact about capitalism, without having to decide whether consumers benefit more from lower prices for a constant set of goods, or from a set of goods of higher price, but of increasing variety and quality.

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:

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@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

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@chrismurphys Although I still find Cunneen events disturbing.

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

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

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@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>>

First a declaration of interest. I’ve known Allan Asher, thought only really to say ‘hello’ to, since the mid 1990s. I liked him and, at least from my limited vantage point think he was shaping up to be a good Commonwealth Ombudsman. He’d also invited me to the Ombudsman’s annual conference which had been thoughtfully put together, but has now been shelved in the light of his resignation yesterday.

It was  certainly a highly embarrassing and a stupid thing for Asher to have been caught scripting self-interested questions for the Greens to ask him in a Senate Committee. Yet, without wishing to criticise those who urged his resignation or his decision to offer it, it’s worth noting that in some ways (apart from his breach of the Eleventh Commandment) this is standard operating procedure in Canberra – and has been for generations.

And that’s not necessarily a tawdry truth. It often been a noble one. Alf Rattigan – one of Australia’s great countercultural bureaucrats helped build the institutions of micro-economic policy transparency – today represented by the Productivity Commission – by cultivating sympathetic politicians within the partisan politics of the day.

Senior officials in the Tariff Board in the late 1960s and early 70s may not have scripted questions for the likes of Bert Kelly, but they were running talking points to the opponents of government policy, often meeting discretely (I know of, but can’t vouch for the accuracy of a story of one of Rattigan’s deputies passing a dossier to a politician through the hedges in the rose garden of the old Parliament House).  Had Bert Kelly asked for help writing a parliamentary question it’s hard to imagine some of Alf’s deputies refusing.

Stephen Bartos disagrees, and perhaps he is right, stressing the role of the Ombudsman as an integrity organisation and also pointing out – quite rightly – that Asher had plenty of other options.  Indeed, given Asher’s ability, indeed duty to publish his views and findings via reports, speeches, and media appearances, and particularly given that these avenues had not been tried, his actual choice in the circumstances does seem particularly ill-judged – indeed frivolous.

Finally in his contrite media release (pdf) on the matter Asher sincerely apologises for his mistake. For me there’s a kind of post-mo0dern twist in it all.  The media release is not a direct statement by Asher. As has become commonplace, it is in the third person form of a pre-written media story.

Mr Asher said he was especially proud of his office’s investigations into systemic issues, citing as examples the school chaplaincy program, the use of interpreters for Indigenous Australians, tax file number compromises, how agencies engage with people suffering from a mental illness, and review rights for people under income management.

But Mr Asher didn’t actually “say” any of it. And he is being criticised by people almost all of whom are complicit in the system which has developed similar and in some ways even more bizarre daily duplicities such as ‘doors duty’ where politicians pretend to arrive at Parliament House in order to offer some carefully scripted one liner to awaiting media hoping to tempt some of them to run it as a ‘grab’ on the nightly news.

Is it any wonder that people sometimes make what they end up conceding are “errors of judgement” in an environment such as this.

Moreover, yesterday’s behaviour by Murdoch’s Brisbane Courier-Mail of publishing edited extracts of a Liberal-National “dirt” file on Queensland Labor MPs rather suggests that it is high time for media behaviour to be placed under the microscope of public scrutiny.  The “Fourth Estate” has been defecating in its own nest for too long and is unlikely to receive much sympathy from the general community if government seeks to bring it to account. …

However, [Jonathan] Holmes implicitly assumes that formal government regulation and heavy-handed bureaucratic oversight are the only available alternatives to the current system of self-regulation of the print media by the Press Council, which Holmes himself (and just about everyone else) concedes is “slow and toothless”.   In fact there a range of possible options for achieving more effective oversight of media behaviour without undermining democratic freedoms.

PS I was tempted to use this image in the post at the official CDU site/blog but I resisted. I’m not quite ready for compulsory retirement.