Category Archives: Law

Lawyers, guns, money, chess and evidence (but with no guns and not much money).

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Lawyers like their evidence to be nice and straightforward. Not to statistical. This is a real problem in some negligence cases. A surgeon might be a good surgeon, might have well below average adverse events, but if something screws up, doctrines like res ipsa loquitur – “the thing speaks for itself” – can find the doctor in hot water.  If some fault can be found in their conduct in a particular case (are there doctors or any practitioners for which this isn’t sometimes true?) then they can be found guilty of negligence even if the broader evidence suggests they are the best, least negligent doctor in the country.*

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. Continue reading →

The GLAM Sector bytes a hand that tried to feed it: Or how really terrific organisations can do really silly things

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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. Continue reading →

Gizmodo loses it: Google has not turned evil (at least not yet . . .)

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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.

Paedophile priests and creative sentencing options

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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:

Continue reading →

Ken Henry and conspiracy theories

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

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

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

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

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

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

Continue reading →