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

Maintenace 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 thought I might have told this story before at Troppo but I can't find it from a quick Google.]

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 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 imrpoved 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.”

And now we have all sorts of nonsense. As Greg Mankiw reports from the Harvard Crimson:

For a Statistics 104 final project, a group of students asked 1,035 undergraduates to gauge their impression of Occupy on a scale of one to ten, with ten being most positive. They found that the average ranking of Occupy Harvard was 2.84 out of 10.

Now Occupy Harvard might not achieve much, but civil disobedience almost always has highly undesirable aspects of social holdup, whether it’s a picket line (effectively turning the collective action of workers into property rights in their jobs) or truckies surrounding Parliament House and preventing others using the roads in defence of various subsidies implicit or otherwise. Yet very often it works for its instigators.

Is this good? Like most things in life, it’s got it’s good side – and its bad side. As Alvy Singer’s mother says to his father in Annie Hall “Have it your own way, the Atlantic Ocean is a better ocean than the Pacific Ocean”.

Trustworthy by Convention, By: M. Bigoni, S. Bortolotti, M. Casari, D. Gambetta, URL: http://d.repec.org/n?u=RePEc:bol:bodewp:wp827&r=evo

Social life offers innumerable instances in which trust relations involve multiple agents. In an experiment, we study a new setting called Collective Trust Game where there are multiple trustees, who may have an incentive to coordinate their actions. Trustworthiness has also a strategic motivation, and the trusters’ decision depends upon their beliefs about the predominant convention with regard to trustworthiness. In this respect, the Collective Trust Games offers a richer pattern of behavior than dyadic games. We report that the levels of trustworthiness are almost thirty percentage points higher when strategic motivations are present rather than not. Higher levels of trustworthiness also led to higher levels of trust. Moreover, strategic motives appear as a major drive for trustees, comparable in size to positive reciprocity, and more important than concerns for equality.

In summary

• I was quite surprised at how much I had to figure out in making the transition from Windows.  There are a surprisingly large number of small differences and when you’re used to one way of doing things it’s surprising how often one way of doing things needs to be unbaked into memory and something else baked in.
• Steve Jobs’ famous arrogance is on display with far more things that can’t be changed and customised to your own preferences.
• I expected to find the Apple software better designed, but it’s not. If anything – and this is now after nine odd months, I think it’s slightly worse. The Task Bar in Windows was always a snappy device, but I didn’t realise how good it was till I discovered the dock is definitely worse. If you’ve got lots of windows open the task bar lets you navigate to different windows quickly. On the Apple it’s usually two rather than one click away. Sounds like a small thing but it’s irritating.  Still perhaps there’s a way of doing it I don’t know of. So generally I’d rate the operating system somewhat inferior to Windows in terms of convenience and intuitiveness.
• The trackpad in the Apple is seriously better than Windows. However this isn’t a big deal for me because I use external keyboard, screen and mouse most of the time.
• The Apple hardware is lovely.
• Ultimately my experience hasn’t made me, like many a baked on Apple fan. But I’ll probably keep with Apple for a funny reason. I can’t stand the Microsoft Office ‘ribbon’ which is compulsory in Office from Office 2007 on. Of course the best thing to do is to simply transition out of Office but unfortunately it’s impracticable given how much I have to interface with people using Office and Open Office won’t read Microsoft Office documents without formatting glitches. However Apple has managed to get Microsoft to do for its Apple variant what it should have done all along which is to provide menus at the same time as indulging it’s obsession with the ribbon. Anyway, that means that until Microsoft changes its policy in the Windows world, I’ll probably stick with Apple computers.
• Which brings me to the main subject of this post.  Until a week ago, my battery lasted around 3 1/2 hours. Now it lasts around 1 1/2 hours.  I don’t know of any setting  I’ve changed. The fan seems to come on more though even when it’s not on the meter seems to show much less time is left in the battery than before.  Anyway, this all suggests that, like old copies of Windows, the OS degrades in efficiency over time and needs reinstallation from time to time – if so that’s another reason I’m not happy but there you are. 1 1/2 hours is enough for most plane rides. Any clues O Troppolishous ones as to how I can fix this? (And yes, I’ve checked the power settings and there doesn’t seem to be anything particularly unusual in there.)

Well humans are still competitive – for now.

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).

The Bee Gees were hardly the most fashionable of pop groups among the cool kids, either at the time or now.  But I reckon I Started a Joke is still one of the greatest and most moving pop songs of all time (albeit a bit corny for some tastes).  Even if schmaltz isn’t your schtick, you’d have to agree he had an extraordinary voice and it’s showcased here to perfection. RIP Robin Gibb.

I can reflect on my sister’s recent experience. She lost and lost badly, because she had no money to represent herself, the judge was disuninterested, and the husband’s lawyers were reprehensible, with no interest whatsoever in the truth, the interests of the Court, the child that was being contested or the Family Law Act. They threw every bit of sh*t at her that they could invent (and it was basically all made up) and they got away with it. They had a barrister, she’s a part-time school teacher, the whole thing left me feeling sick to my stomach. I do not trust or expect justice in the family law courts in Australia any more. The lawyers involved should be deeply ashamed of themselves.

Legal aid is also hardly ever available for litigants before general merits review tribunals like the Administrative Appeals Tribunal and its State equivalents. Yet unrepresented litigants are at a major disadvantage when facing “lawyered up” government departments, despite the exhortation in section 33 of the Administrative Appeals Tribunal Act 1975 that proceedings should “be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act … permit”.

Somewhat ironically, legal aid is also hardly ever available for anti-discrimination proceedings either before the Human Rights Commission or State or Territory equal opportunity bodies. That may mean that these bodies actually exacerbate the discrimination applicants have suffered rather than resolving it, because respondents will commonly be employers, businesses or governments who can usually afford their own legal representation where an ordinary applicant cannot.

When I worked as Director of Law and Policy at the NT Anti-Discrimination Commission in the late 1990s, then Commissioner Dawn Lawrie had a presumptive policy that usually neither party would be permitted legal representation at a complaint hearing. It certainly didn’t endear her to most of the local legal profession, but personally I strongly agreed with the policy. It meant that both parties were on a reasonably “level playing field” at least in the hearing itself. The right to natural justice is seen in administrative law, somewhat self-servingly some might think, as contributing to “natural justice” whereas it may paradoxically work an injustice where only one side can afford a lawyer.

Community legal centres provide a partial answer to the problem of access to justice, as to a limited extent does the phenomenon of private law firms providing pro bono representation to some people. Hugh de Kretser, Executive Officer of the Federation of Community Legal Centres (Victoria), published an article about this in the Herald Sun a couple of days ago as part of Law Week:

Before, if I met someone at a barbecue and told them I was a corporate lawyer, the conversation would stall. Now, the response is: Oh, so you’re a good lawyer.

One of the funny things that happened when I moved from working in a big corporate law firm to a small community legal centre was that people were suddenly interested in what I did for a living. Before, if I met someone at a barbecue and told them I was a corporate lawyer, the conversation would stall. Now, the response is: Oh, so you’re a good lawyer.

The 500 or so lawyers who work in community legal centres and Victoria Legal Aid are good lawyers. Many could get paid much more working in commercial law but, driven by a passion for justice, choose a career that is all about leveling the playing field for people who can’t afford a lawyer.

But they’re not the only good lawyers. As a profession, lawyers care deeply about access to justice. Yes, some lawyers charge high fees, but the legal profession also does a vast amount of work for free for people who can’t otherwise get legal help. Known as “pro bono”, this work delivers literally millions of dollars worth of free legal help to needy Victorians every year.

Many law firms have signed up to a target of 35 hours of pro bono legal work per lawyer per year, and many exceed this target. More than 1000 lawyers and law students also volunteer in Victorian community legal centres each year.

The chronic underfunding of community legal centres and legal aid risks creating a system where only the rich and powerful can access the law. Pro bono work by lawyers is a vital safety net that helps to ensure that people don’t fall through the cracks.

However, while “many” law firms might have signed up to a target of 35 hours of pro bono legal work per lawyer per year, most have not. Even for those who have, that’s a target of much less than one hour per week per lawyer. Moreover, given that larger law firms informally expect their young lawyers to work at least 60 hours or so per week, it’s a rather small target indeed though certainly better than nothing.

Nevertheless, de Kretser’s article has sparked an idea. What if the legal profession were to set out actively to broker a national Access to Justice Accord with Commonwealth, state and territory governments aiming at a dramatic boost in community access to justice? If we as lawyers want to be taken seriously in our claims to be a true profession with a real commitment to the public interest and social justice rather than just a money-making industry, this is exactly the sort of initiative we should be pushing. Here’s my idea:

1. The profession would accept that it would henceforth be a condition of renewal of practising certificates of all private lawyers (barristers and solicitors) that they must undertake a minimum of 92 hours of pro bono work per year. That amounts to roughly 2 hours per week per practitioner, a significant commitment but hardly impossibly burdensome.
2. The quid pro quo would be that Commonwealth, state and territory governments would have to agree to maintain existing legal aid funding in real terms and would commit to boosting funding to community legal centres by a combined total of at least $20 million per year.

Of course there would need to be some safeguards to ensure that practitioners could not easily evade the pro bono commitment e.g. by characterising existing “freebies” for mates as pro bono work or “doing a Keddies” on the real number of (otherwise billable) hours spent on it. Those dangers could largely be avoided by requiring existing legal aid organisations to assess and approve eligible pro bono clients (people who qualify on a means tested basis for legal aid but whose type of matter is not eligible for aid, or who just fail the means test by a whisker) and to assess and acquit the firm’s bill at the end of the matter.

A realist/cynic would instantly conclude that a proposal like this has no chance of winning support from State law societies, which profess to be impartial regulators of the “profession” but actually have an irretrievable conflict of interest between that role and serving as an employers’/industry association. That conflict was exemplified only last week (Law Week) when NSW Chief Justice Tom Bathurst described large law firms dedicated to billable hours as being occupied by “mindless drones”, only to be forced to back down partially after criticism from the NSW Law Society whose President piously observed that profit and ethics were not mutually exclusive. Richard “Justinian” Ackland subsequently published an article by the pseudonymous Artemus Jones which effectively demolished the Law Society’s pretensions.

Anyway, I’m going to cast this bread on the waters by tweeting my Access to Justice Accord proposal to CDU’s numerous lawyer followers. Let’s see what happens. Are we a profession or just an industry? If the profession takes up an idea like this it would not only dramatically enhance access to justice in Australia but do much to break down the sort of negative perception of lawyers exemplified by the image accompanying this article.  However I won’t be holding my breath.

PS I should make it clear that I have no problem whatever with lawyers making a decent living from their calling, even a handsome one.  It’s a stressful occupation, most lawyers work very hard and undergo years of training to get there.  However when an industry claims special privileges (e.g. self-regulation and a closed shop)¹ through being a “profession” serving the public interest, those claims need to have a solid basis in reality not just be mere self-serving PR “puff”.

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.

So why do people carry on like this? "There can be only one answer", says Irvine, "we are, as a nation, chucking a full-on, all-screaming, all-door-slamming teenage temper tantrum." Voters and business are like petulant teenagers and the government is like a weak-willed parent desperate for affection.

Irvine’s column was the talk of Twitter this morning. "Fantastic piece on what a pack of whingers Australians are", tweeted Bernard Keane while Aleta describes Irvine as "a breath of sensible in a world of stupid". Trent Driver writes: "Best piece I have read in a long time. Wish you could hear the debate by the teenage girls in my ecos classes. :)"

Others were less convinced. "I don’t understand why people like that Jess Irvine thing" said Jason Wilson. "More pundits telling the people they’re spoilt children."

Liam Hogan commented "three things missing from that piece: price of housing, major city rental vacancy rate, homelessness index." Sarah Toohey from Australians for Affordable Housing agreed, "Nice points Liam. Overall econ good, lots quite comfortable, but some have really difficult lives b/c of hsg."

Arriving just after the ACTU conference, Irvine’s column runs into their campaign on insecure work. Jason Wilson asked: "Haven’t we just heard at the ACTU congress that ppl feel chronically insecure?"

According to the ACTU’s Ged Kearney, millions of Australians are in casual jobs, contract jobs and labour hire work. "On top of low wages, and a lack of conditions like sick leave and holiday pay, there is a huge amount of uncertainty about when and how much people will work."

Matt Cowgill and Keiran McCarron took issue with Irvine’s claim that Australia’s welfare state is bloated. Cowgill wrote: "I disagree that our welfare system is ‘bloated’ (unless you include tax expenditures in your definition)" while McCarron tweeted: "I didn’t read your article. But if you’re calling a welfare system smaller than the US’s "bloated" you’re just politicking."

Irvine isn’t the only one arguing that Australians are complaining too much. The Australian newspaper’s George Megalogenis has pledged a "war on whinging". And that’s just where twitter user truckie is filing the piece, under #waronwhinging. Megalogenis says he might pitch a ‘war on whinging’ show to the ABC. Fake Paul Keating tweets: "if you get a show, @Jess_Irvine is in the stop whinging camp, and lot more photogenic than you".

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 been having to go further and further in the world to get anyone to listen to me. But in any event, I enjoyed this breakfast radio interview in Regina Saskatchewan.

I’ve often thought that in politics, the signature of honesty is not lack of dishonesty – an impossibility in party politics – but a certain discomfort with the the lies you have to tell. I’m giving Joe the benefit of the doubt on this one. And good on you Penny for your dignity in the midst of indignity.

EVEN as the contrast between left and right fades in mainstream politics, politicians continue ideological warfare like lions eat red meat. But somehow left-leaning politicians have become vegetarians. And they’re being eaten alive by the carnivores of the species.

Deep in the psyche of the electorate, the right is dad and the left is mum. Seriously! The electorate instinctively feels that the right is better with money while the left is better at ”caring” things such as health and education. The left’s desperation to avoid the right’s stereotype of them as feckless spendthrifts sees them continually hamstrung in articulating their case. Seeking to appease our economic anxieties they buy into the right’s way of framing the issues. In the name of managing the news cycle they give up more and more political and ideological ground.

Thus, for instance, to allay electoral fears about rising debt, US President Barack Obama suggested that, since American families and businesses were tightening their belts, the government should do the same. This is nonsense on stilts. By the very logic of his stimulus (and Bush’s cash handouts before him), the whole point of deficit spending was to reverse or counterbalance a temporary lack of private spending. As Paul Krugman argues, one can forgive Obama for compromising on the policy, but not on the truth; not, that is, for casually adopting his opponents’ framing of the issues that gainsaid the whole point of the stimulus in the first place.

Australia’s economic circumstances are different. Partly because our stimulus worked so well and also because of the surging resource sector, our central bank hasn’t needed to cut its cash rate to near zero. So it hasn’t run out of conventional monetary ammunition like the US Fed. So unwinding our fiscal stimulus makes sense.

Yet our left-leaning politicians can’t take credit for their greatest achievement because they’re forever thrusting their little vegetarian heads into the lion’s jaws of their opponents’ framing of the issues.

Recall how initially the government couldn’t even bring itself to mention the word ”deficit”? The real damage wasn’t how silly this made it look but how in being so defensive it hamstrung its explanation of what it was doing and why.

And when the opposition and the Murdoch press mounted a campaign against the wastefulness of the inevitable snafus in stimulus projects, it needed to stand and fight: not just because it had to defend its greatest achievement, but also because this was its issue. It should have said, ”Yes, the necessary haste meant there’d be some mistakes in more than 20,000 projects, but they were minimal, especially compared with keeping more than 100,000 people employed. That’s not just good for them. It’s good for the budget. They’re off the dole and paying tax so we got thousands of school halls for a song. Come to one near you to see what we’ve built together and hear us debate the opposition who criticised us for building it.”

And as some opposition politicians continue to laugh to themselves and journalists, the government was so consumed by its economic inferiority complex that it was suckered into foolish bravado. On her first day in office, Prime Minister Julia Gillard turned a budget forecast into an ironclad promise to return to surplus by 2012-13, immediately rendering her government a hostage to fortune.

The less you stand and fight, the more ground you lose. And the mindset in which one makes progressively riskier and more desperate assertions of one’s own economic bona fides by promising a surplus come what may is one in which the deficits funding the fiscal stimulus become something shameful, rather than the government’s crowning achievement.

ALP state governments followed a similar path of populist fiscal rectitude – to their doom. Clutching their AAA ratings, ALP governments mortgaged their economic future and their cities’ amenity by starving them of infrastructure investment. Ask former premiers Keneally, Brumby, and Bligh how those AAA ratings turned out.

And so to the budget. It really brought home the bacon. ”The deficit years of the global recession are behind us. The surplus years are here.” Makes you wonder why we ever ran deficits. And what happens if there’s another GFC?

In fact, the very night before the budget, Australians were being polled on just that. Just 25 per cent said they’d trust the ALP if there were another GFC, down from 31 per cent just in August. For the government that could reasonably lay claim to being the world champion at steering its people through the last GFC, how extraordinary, how sad that it’s come to this.

Postscript: the podcast of the column - on James McLoghlin last Sunday night.

For this I got charged $866.25 and that was for my personal return. There’s also the company . . .  In any event, I’m after a new accountant. I don’t want or need anything fancy. Someone who is reasonably diligent and preferably someone who has some ideas from time to time about structuring a small business. If they come from Melbourne that’s well and good, but it’s by no means essential – we have post and email these days, and the person who does the books is in Queensland.

If you’ve got an accountant who’s Just Great, please let me know either in comments or by email on n g r u e n  AT g m a i l DOT c o m

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).

Berg draws on Jonathan Haidt‘s moral foundations research. Haidt argues that moral judgments are largely intuitive and rest on six foundations – care/harm, fairness/cheating, liberty/oppression, loyalty/betrayal, authority/subversion and sanctity/degradation.

Haidt and his colleagues have found that progressives (liberals) rely almost entirely on the first three foundations when making moral judgments. In contrast, conservatives rely on all six.

In many ways libertarians are like progressives. “We found that libertarians look more like liberals than conservatives on most measures of personality” Haidt wrote in his recent book, The Righteous Mind: Why Good People are Divided by Politics and Religion. However:

Where they diverge from liberals most sharply is on two measures: the Care foundation, where they score very low (even lower than conservatives), and on some new questions we added about economic liberty, where they score extremely high (a little higher than conservatives, a lot higher than liberals).

So if progressives are wrong about conservatives, could they be right about libertarians? In a recent paper, a group of researchers including Haidt reported that libertarians reject the morality of altruism “as well as all other moralities based on ideas of obligation to other people, groups, traditions, and authorities.”

Interestingly, the research suggested libertarians may be less satisfied with their lives than either progressives or conservatives. The researchers reported that “libertarians may be less happy in part because they care less about others and (most likely) bond less with others, particularly close others.” Libertarians seem to rely less on emotion and more on abstract reasoning.

Given their lack of interest in conservative values, why do American libertarians consistently favour the Republican party? According to Haidt:

People with libertarian ideals have generally supported the Republican Party since the 1930s because libertarians and Republicans have a common enemy: the liberal welfare society that they believe is destroying America’s liberty (for libertarians) and moral fiber (for social conservatives).

There is always potential for tension between conservatives and libertarians. As I argued in a 2008 article for Policy magazine – ‘Defusing the American Right‘ – the alliance comes under stress when conservatives enlarge the size and scope of government in order to pursue their values. The wars in Iraq and Afghanistan and the war on drugs were areas of tension under the Bush administration.

But perhaps not all libertarians lack concern for people who are poor and marginalised. Recently a number of libertarian thinkers have gathered together at the Bleeding Heart Libertarians blog. Some of them are even talking about social justice.

Other than the car – I don’t know what’s wrong with taxis – this seems OK to me. Indeed if the story is to be believed, it’s only for six months after he resigns – to handle correspondence etc (one needs a driver to handle correspondence for obvious reasons).

Anyway, though the reporting was neutral enough there’s a poll on whether this is OK or not. And of course they don’t just want you to vote ‘yes’ or ‘no’. They want you to run your own little story on A Current Affair. With a yawning and very dreary excluded middle, one gets this choice:

Is Mike Rann entitled to the extra perks?

• Yes, he served the state well
• No, this is outrageous

And of 2815 votes, 86.47% said it was outrageous. I’m generally down on perks – like outrageously generous superannuation or free business class travel for life, but these seem to me to be some of the least outrageous perks I’ve come across.

Johns also implies that advocates of social justice and equality are opposed to democracy. As he writes in the Australian: “In a democracy, achieving a just distribution of society’s wealth requires permission to take money from some to distribute to others. Often, those others do not agree to hand over the money.” In his essays and articles Johns misconstrues social justice and egalitarianism as well as the relationship of these ideals to democracy.

People fight for equality when they feel they are being bullied or dominated, writes psychologist Jonathan Haidt. Haidt argues that social justice movements not only urge compassion for the poor and disadvantaged, they also “call for people to come together to fight the oppression of bullying domineering elites”. On this view social justice is not fundamentally about an equal distribution of wealth or income, it’s about freedom.

Philosopher Iris Marion Young makes the same point in her book Justice and the Politics of Difference. Commenting on signs and banners bearing the slogan “Peace, Jobs and Justice” at an American political rally she asks:

What does “justice” mean in this slogan? In this context, as in many other political contexts today, I suggest that social justice means the elimination of institutionalized domination and oppression. Any aspect of social organization and practice relevant to domination and oppression is in principle subject to evaluation by ideals of justice (p 15).

As Young explains in Inclusion and Democracy, the ideals underlying this idea of social justice are self-development and self-determination. Young’s idea of self-development is similar to Amartya Sen’s idea of capability. For Sen what matters is a person’s opportunity to live the kinds of life they have reason to value Freedom plays a central role in the capability approach. In his book The Idea of Justice he writes:

… we have reason to be interested not only in the various things we succeed in doing, but also in the freedoms that we actually have to choose between different kinds of lives. The freedom to choose our lives can make a significant contribution to our well-being, but going beyond the perspective of well-being, the freedom itself may be seen as important (p 18).

While material resources are an important means to self-development they are not the only thing that matters. For example, philosopher Elizabeth Anderson raises the prospect of ‘contract feudalism’ where an employer is able to dictate how employees behave outside the workplace. She argues for “the right to conduct one’s life outside of work independently of one’s employer’s arbitrary will.”

Another example is marginalization. Young writes about the way dependence on the state can limit a person’s freedom:

Being a dependent in our society implies being legitimately subject to the often arbitrary and invasive authority of social service providers and other public and private administrators, who exercise power over the conditions of their lives. In meeting needs of the marginalized, often with the aid of social scientific disciplines, welfare agencies also construct the needs themselves. Medical and social service professionals know what is good for those they serve, and the maginals and dependents themselves do not have the right to claim to know what is good for them (p 54).

When people have no other way to secure an income they are vulnerable to coercion. Single parents, people with disabilities and Indigenous people in remote communities can lose control of their lives when the state ties income support to compliance with mutual obligations.

Violence and the threat of violence can also limit a person’s freedom. As long as social institutions and norms tacitly condone acts of violence and intimidation against groups like women, immigrants or homosexuals, these groups lack freedom. As Young points out: “Violence is a form of injustice that a distributive understanding of justice seems ill equipped to capture.”

For Young, oppression is the opposite of self-determination — the second ideal of social justice: “Persons live within structures of domination if other persons or groups can determine without reciprocation the conditions of their action, either directly or by virtue of the structural consequences of their actions.”

Young defines social justice “as the institutional conditions for promoting self-development and self-determination of a society’s members.” Politically this is a much broader agenda than the redistribution of income. The pursuit of justice is understood not just as adherence to rules and norms established by the traditions and institutions we have today but as a search for better rules and norms. As Anderson writes in her essay What is the Point of Equality:

Positively, egalitarians seek a social order in which persons stand in relations of equality. They seek to live together in a democratic community, as opposed to a hierarchical one. Democracy is here understood as collective self-determination by means of open discussion among equals, in accordance with rules acceptable to all.

There will always be disagreements about what social justice means in practice. But if there is a common thread to demands made in the name of social justice it’s about the pursuit of freedom rather than a more mathematically equal distribution of income.

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.

Here’s a picture of the moon and the sun juxtaposed. They cycle between being the same size in our heavens and being a bit bigger or smaller than each other. It’s spooky.  Just the right size to deliver a total eclipse, or an annular one, depending on how they are feeling at the time. A proof of the existence of God if ever there was one. (Now for an explanation of cystic fibrosis).

To make this picture, the Full Moon on May 6 was photographed with the same camera and telescope used to image the Sun (with a dense solar filter!) on the following day. Of course, on May 6 the Moon was at perigee, the closest point to Earth in its eliptical orbit, making it the largest Full Moon of 2012. Two weeks later, on May 20, the Moon will be near apogee, the most distant point in its orbit, so by then it will be nearly at its smallest apparent size. It will also be a dark New Moon on that date. And for some the New Moon will be surprisingly easy to compare to the Sun, because on May 20 the first solar eclipse of 2012 will be visible from much of Asia, the Pacific, and North America. Along a path 240 to 300 kilometers wide, the eclipse will be annular. Near apogee the smaller silhouetted Moon will fit just inside the bright solar disk.

Here’s a picture of the moon and the sun juxtaposed. They cycle between being the same size in our heavens and being a bit bigger or smaller than each other. It’s spooky.  Just the right size to deliver a total eclipse, or an annular one, depending on how they are feeling at the time. A proof of the existence of God if ever there was one. (Now for an explanation of cystic fibrosis).

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

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).