Senators Ludlum, Waters and the emerging Section 44(i) mess

The sudden resignation from the Australia Senate of first Scott Ludlum and then Larissa Waters has further opened a constitutional can of worms. The two were joint deputy leaders of the Australian Greens in the Federal Parliament, both were young seasoned performers with considerable promise. Their resignations came about because they were found to be dual citizens and thus precluded from membership of the Australian Parliament under Section 44(i) of the Australian Constitution.

Born in New Zealand in 1970, Senator Ludlum came to Australia with his family when he was three. He became a naturalised Australian citizen in his teens and assumed that his New Zealand citizenship had lapsed as a consequence. It was Perth barrister Dr John Cameron who investigated New Zealand official records who found that Mr Ludlum was also still officially classified in New Zealand as a New Zealand citizen.

Born in Canada in 1977 to Australian parents, Larissa Waters came to Australia as a baby. When she found out about Sentaor Ludlum's status, she checked her own position only to find out that she, too, was technically a dual citizen and hence not eligible to serve in the Senate. She resigned as a consequence.

Section 44(i) of the Australian Constitution reads:

44. Any person who -
(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power:
....................
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The Constitution was passed as an Act of the British Parliament in 1900. This was a very different world, one of Empire and emerging Commonwealth. As you can see from the Wikipedia article on Australian nationality law, concepts of citizenship have evolved, as has the definition of a foreign power. In 1900, it would have been seen as inconceivable that Canada or New Zealand could or would be classified as foreign powers for the purpose of Section 44(i) as compared to, say, the United States or Germany. When Canberra founder King O'Malley, for example, wanted to run for Parliament, he appears to have changed his birthplace from the US to Canada so that he was not precluded by Section 44(i).

The problem now can be simply put: something like 28% of the Australian population was born overseas, while almost 50% of the Australian population has one parent born overseas. Perhaps as many as 4.5 million Australians are or may be eligible for dual citizenship depending on the laws in the other country and hence not be eligible to stand for the Australian Parliament on a strict interpretation of the wording of Section 44(i).
.
Consider my own case as someone who has run for preselection for Federal Parliament. At the time I ran, I was eligible to apply for both British and New Zealand passports, to become a citizen of those countries. Indeed, my family later pushed me to apply for a British passport while I still could because of then EU access. Was I therefore ineligible to stand for Parliament?
    
One of the arguments in the current debate is that people should renounce their alternative citizenships and that they have only themselves to blame if they have not done so. There are a number of problems with this argument. You have to know exactly what your position is. Further, you have to be able to do so in some meaningful way given the laws of the other country. This actually makes membership of the Australian Parliament dependent on other countries' changing laws, something of an absurdity.

To take an extreme case, say the Irish Parliament changed its laws so that every person of Irish ancestry had an automatic right to apply for and be awarded Irish citizenship. On a strict reading of 44(i), that could immediately disqualify many of our current Parliamentarians. Perhaps a more relevant example is Israel's Law of Return that gives Jewish people an automatic right to Israeli citizenship. Are we therefore to exclude all Jews from the Australian Parliament?

A fair bit of point scoring from all sides has gone on around  the question of  Section 44 as they seek to use it for immediate political advantage. At a low level, this includes Mr Turnbull's comment on Senator Ludlum:

 "Obviously Senator Ludlam's oversight is a pretty remarkable one when you think about it - he's been in the Senate for so long," Mr Turnbull said. 

"Anyway, there it is, he's ineligible, and so there'll have to be, I assume, a countback ordered by the High Court to produce a replacement for him."  .

Maybe that's fair, but it ignores the way this issue has been developing and the implications it has for the operations of Parliament. Do we really want to place ourselves in the position that more than 25% of the Australian electorate may be excluded from running for Parliament?

In the end, it comes back to the High Court and the way it might interpret Section 44(i) in the light of current events. Perhaps Dr Cameron as a concerned citizen who has already brought down two Senators might consider doing a Bryan Pape and taking a citizen's case to the High Court. I, for one, would like to know just how that clause might be interpreted so that we know who is actually eligible to run.  

Postscript later on 18 July

Interesting piece by Amy Remeikis and Eryk Bagshawin the Brisbane Times: Greens senator Larissa Waters resignation triggers wave of MPs declaring Australian allegiance. Settled one issue to begin with. Tony Abbott renounced his British citizenship before entering Parliament. On Ms Waters:

Senator Waters, who was born to Australian parents studying in Winnipeg, said she had been assured as a teenager that she needed to "opt-in" for Canadian citizenship by her 21st birthday, an option she declined after not visiting the country since she was 11 months old. 

But her lawyers this week revealed that while Canada had changed its citizenship laws to the opt-in model in 1977, the year Senator Waters was born, it did not take effect until the week after her birth and she was automatically a citizen. 

An update too on ABC, including information that it cost Senator Sam Dastyari $25,000 giving up his Iranian citizenship cost $25,000 and involved two teams of lawyers — one from Australia and one in Iran.

It all remains a bit of a mess.

Postscript still later 18 July

I had not seen this High Court Decision that bears upon the application of Section 44. Recorded for later reference.

Update 26 July 2017

Section 44(i) of the Australian Constitution continues to create problems with the resignation (and here, here, here, here) from the ministry of National Party Senator Matt Canavan.

Senator Canavan was born in Australia and has never been to Italy. However, it appears that Senator Canavan's mother included him in her 2006 application to become an Italian citizen, making him a dual citizen without his knowledge. Senator Canavan has not resigned from the Senate at this point. Instead, the Government will test the matter in the High Court,.seeking to clarify the interpretation of Section 44(i).

For those who are interested, there is quite an interesting discussion on the Melbourne Law School High Court Blog that draws out some of the issues associated with Section 44.

Monday Forum - whatever you want

I have been bogged down. Hopefully this will now ease. Meantime, this somewhat late Forum is another as you like.

The sudden and sad death of John Clarke removed a major figure from Australian and New Zealand life. He was brilliant on his own and in conjunction with straight man Bryan Dawe. Clarke and Dawe was very much a team in which Bryan's sometimes incredulous expression and pointed attempts to gain answers provided a perfect foil to Clarke's insouciance. For overseas readers, this link will give you some examples. Others are readily available on YouTube.

The United Airlines fiasco over the forced removal of a passenger to accommodate crew needed for a later flight was quite astonishing. I won't repeat the footage here, but this is an example. The reaction on social media was instant and savage.  

The graphic is from a January 2016 piece by Bloomberg's. Drake Bennett on the airline's efforts under CEO Munoz to turn around, to recover from disaster centered in part on poor customer service. This included the infamous 2009 broken guitar case.

It would appear that United had made some progress until this case turned the whole thing around, again twisting the airline into knots. The facts of the case will be picked over and over. It should not have occurred in the way it did, although I can understand the chain of events. Once it did occur,  the responses of CEO Munz displayed a remarkable lack of human sensitivity, a failure to understand the implications of just what had happened. The sight of the passenger back on the plane with a bloody face repeating "I have to get home" in a dazed fashion will stay with me for some time.

In all this, I have learned a new word, "re-accommodate", to describe passengers who do get bumped even when they have a valid ticket and allocated seat and are sitting in that seat. While I knew about over-booking, that is one reason I book on line or get to the airport early, while I knew that the airlines had a legal right to put me off, the thought that one might get dragged off was a new one to me.

The ABC had a useful piece on the Australian legal position if you are faced with "re-accommodation." I did not realise just how limited my rights were. I think that this is a case where legal reform is required.

Update on United

The CEO of United has now provided a full apology on the matter:

Statement from United Airlines CEO Oscar Munoz on United Express Flight 3411
April 11, 2017 

The truly horrific event that occurred on this flight has elicited many responses from all of us: outrage, anger, disappointment. I share all of those sentiments, and one above all: my deepest apologies for what happened. Like you, I continue to be disturbed by what happened on this flight and I deeply apologize to the customer forcibly removed and to all the customers aboard. No one should ever be mistreated this way.  

I want you to know that we take full responsibility and we will work to make it right.   

It’s never too late to do the right thing. I have committed to our customers and our employees that we are going to fix what’s broken so this never happens again. This will include a thorough review of crew movement, our policies for incentivizing volunteers in these situations, how we handle oversold situations and an examination of how we partner with airport authorities and local law enforcement. We’ll communicate the results of our review by April 30th.  

I promise you we will do better.  

Sincerely,
Oscar 

Meantime, the Louisville Courier-Journal has been dragging up material about Dr Dao's past, something that has also attracted considerable ire and forced some backtracking from the paper. .

Introducing lawfare

I'm not sure where this came from originally, the Republican Party?, but I had to laugh. It's really quite clever.

When Prime Minister Abbott used the term "lawfare" to describe the reasons for proposed changes to the Commonwealth Environment Protection and  Biodiversity Conservation Act 1999,  my first reaction was to think that he had defined a new term following his usual desire for simple slogans. The last may be true, but lawfare (while a recent term) has a considerable history.

I like the term. I first came across lawfare in commercial law and especially in the intellectual property arena where big companies were able to use legal processes to steamroller smaller competitors who could not afford to fight the cases. The legal grounds used were often spurious or at least dubious. That did not matter. All that was required was an apparent case with the aim of out-lasting the smaller company. As often happens, processes created for one purpose had unforeseen side effects, as in the rise of patent trolling.

 If you look at the Wikipedia article on lawfare, link above, you can see how the use of the term has, to a degree at least, become entrapped in varying ideological and political stances. While we can all think of examples of lawfare, the term is actually quite difficult to define. Simplifying, lawfare involves the deliberate use and manipulation of the law and legal processes by individuals, organisations and indeed governments to achieve objectives that are independent of the intent of the law or legislation.

 In this sense, I find lawfare a useful and indeed interesting term.  

Sunday Essay - the continuing allure of monarchy

A blogging colleague, a lawyer, was very upset at the way that Queensland barristers opted to return to the Queen's Counsel (QC) from Senior Counsel (SC) when given the choice. Apparently, only three opted to stay with SC. I'm not sure why he should have been surprised. The decision to replace QC with SC was imposed politically. Given a choice, people revert to the liked and familiar.

In retrospect, the best chance that the republicans had of abolishing the monarchy was during the Keating period. It is also clear, I think, that Mr Keating's determination to take away the familiar royal designations played  a major role in ultimately dooming the republican push.

As a practical example, when the Royal Australian College of Ophthalmologists merged with the New Zealand equivalent, the College wanted to change its name to the Royal Australian and New Zealand College of Ophthalmology. Canberra told it that it could add New Zealand, but only if it dropped the Royal. That wasn't going to happen. Why should the College give up the Royal title? The merger went ahead, the name stayed the same, and was then changed later as the political winds shifted to allow it to retain Royal in the new title.

If Mr Keating and his fellow republicans had been more flexible, more accommodating, they might have had a chance of getting the substantive change through. Their problem was, I think, that the desire to achieve a republic was of itself as much about symbolism as substance. They fought and lost on the symbols. 

I mention this now in part because there is a new push by some in Australia for a republic. Yet at the same time, looking at both the mainstream and social media there is a continuing fascination with monarch. In Canada, the historian Christopher Moore is a dedicated republican. He struggles to understand why such an anachronism as the monarchy should stay in place, why there is so little desire to replace it.

I think that part of the answer is that monarchy is actually interesting. Only in the US where the president has become the monarch does presidency exercise a similar fascination. There, too, you have all the trappings of monarchy played out across screens in every household. I think, too, that part of the answer lies in the need for continuity, a desire to link present and past.

Here in Australia, prominent opposition leader and leading republican Malcolm Turnbull says that a republic won't come until the Queen dies. I thought that too, but that was at the height of the anti-Charles feeling. That has died down now, while the young royals have established a new bridge that extends beyond Charles. I can't see how the Queen's death will affect things. If anything, the consequent surge of emotion is likely to entrench the status quo.

I may be wrong, of course. I have been many times before! But I find it hard to see how the often pedestrian vision of a Australian republic might overcome the constantly changing allure of the alternative. 

Postscript

Interesting piece in today's Financial Review (14 June 2013) on the change back to QC in Queensland.

The factual lead on the front page says in part:

The Queensland Attorney-General Jarrodd Bleijie, said the change would help barristers in Asia. Some Queenslanders believe SC is being confused with the law  firm role "special counsel" and that clients in Asia view QCs as more prestigious given their history of briefing silks from Britain.

Now I would have thought that this may be right or wrong, but it is testable. So, for example, the term senior counsel has indeed come to acquire wide usage in law firms for, for example, retired partners or other senior people not in standard roles.

Now when you go to the story itself (p33) all this drops away. The story itself has no analysis, just a stream of opinions.  

Julia Gillard - it's time to move on

Back in October 2011, I commented on the Australian's plans to introduce pay too view, and wondered how it would affect blogging among other things. Almost twelve months later, I can report that the main impact for this little blogger is that I stopped visiting the Australian. There just wasn't enough free content on the sight to make it worthwhile. Now that hasn't been a problem until now when the Australian itself becomes the story. 

It appears that some seventeen years ago, Australian PM Gillard was involved at law firm Slater & Gordon in some unwise business. This story by Phillip Coorey in the Sydney Morning Herald will give you a feel. I don't think that you need to know all the details, nor do I have the time to do the investigation to give them to your properly.

The Australian has apparently been campaigning on this issue for some time in its role as an objective source of political analysis. It appears to have made one assertion three times, withdrawing it three times. Now it has come out with an editorial justifying its position that is, for the moment at least, on the public record. All this largely escaped me since I have not been reading the Australian. 

All the pressure made the PM feel that she should do a full press conference to put the matter behind her. To quote the Australian:

JULIA Gillard's strong performance yesterday was a belated attempt to address questions surrounding the conclusion of her legal career at Melbourne firm Slater & Gordon in 1995. At the heart of the controversy is how she served the interests of her employer, those of her client (the Australian Workers Union) and how she has levelled with the public subsequently.

Canberra is a pressure cooker gold fish bowl. It is also an incestuous world in that everybody knows and feeds from each other.

In her press conference, the PM took a swipe at the blogosphere and especially Larry Pickering. Dear that took me back, back in fact to the seventies when Larry was the cartoonist for the Canberra Times. That, dear children, was when the Canberra Times was still a must read newspaper for those like me  with some pretensions of being in touch as a member of the political classes. Larry later broadened his interests to include calendars that combined his interests in caricature and genitalia. He was a very funny man - I still remember roaring with laughter at his cartoon on the chardonnay drinking socialists of Bungendore. We all knew who he was talking about.

I knew that Larry was back on the scene, but had no idea how much he had managed to annoy the PM. This doesn't mean he is either right or entertaining. I actually don't know on either. He could be tedious sometimes. Yet in a funny way, all this does put current Australia in perspective.

Round the world, there are a few problems. Consider the case of Greece, or of Mali or of changes in China. Consider Ramana's complaints about corruption and lack of direction in India. Here in Australia, we seem to be obsessing (among other things) about the question of why the PM didn't open a file all those years ago on Slater & Gordon. Now, and as an aside, Slater & Gordon was the first law firm to list any stock exchange anywhere in the world, Australians have always been innovative in these areas!

It appears to me that the PM didn't open a file because she was doing a freeebie and didn't want to the whole thing to get caught up in the matter management systems so beloved by law firms. Now leaving aside the changes that have taken place since then including the spread of computerisation, so what? This does not, as the Australian claims, go to the question of trust.

Is the Australian telling me that its journalists - leave aside the management - don't get drunk; don't have affairs; don't help their friends? In other words, that they are not human? Is there anything in this that would make me think other of PM Gillard that she is human?

We have the luxury in this country, a luxury shared by few others, of being able to focus on the small because in a day to day sense we do not have big problems. We can obsess with our navels

Now it may be that in all this obsessive digging that has been going on people will identify important issues of principle that need to be considered. Yet I doubt it.

Like the Australian journalists or even that paper's management, I am human with flaws. I couldn't survive this type of scrutiny. It would tear me down. It's been hard enough letting some comments stand, But does that make the things that I am working on less important? Does that make my beliefs or the things that I campaign for in my limited way less important? I don't think so.

I do not support many things that PM Gillard does. I wish to debate those things. As a member of what we might call the public chattering classes, as someone interested in ideas who cares, I wish to engage. I don't want to get involved in the minutiae of a normal human life of seventeen years ago with all its normal pressures and human confusions. It's just not relevant.

So let's move on. That's all I ask.

Postscript

Over on skepticslaywer, Legal Eagle in Gillard and the AWU brought up a legal process assessment of those events seventeen years ago. The post and some, not all, of the comments are worth a read. I will bring up a short companion post on another blog and then reference it here.   

Four Corners, the Armidale Express and Father F

This one made me very angry. Consider the following. Was I wrong to be angry?

On Monday night, ABC Four Corners ran the following story -  Unholy Silence. You will find the transcript and video here. I was interested if depressed because this was a very local story from my home area. On Wednesday, 4 July, the Armidale Express carried this story by Janene Carey Disgraced priest lives comfortably among us. The story began:

A SHOCKING exposé aired by the ABC’s Four Corners on Monday night dropped a prominent Armidale resident into the spotlight of allegations about a child sexual abuse cover-up within the Catholic Church.

The man, a former priest who was defrocked in 2005, was called “Father F” throughout the program due to a court order from 1987 that prevents the media from revealing his name, and was shown on the streets of Armidale with his face pixelated.

Although allegations have been repeatedly raised that Father F molested altar boys in Moree and Parramatta during the 1980s, he has never been formally convicted.

It ended with this statement:

Ms Mary Ann Jolley
ABC 4 Corners

Dear Mary Ann,

Your email of the 14th June mentions the tragic case of Mr Damian Jurd. Whilst I have only recently become Bishop of the Diocese, I have been made aware of his plight. I offer my deepest sympathies to his family and friends.

As far as I can ascertain, the Diocesan Authorities became aware of alleged incidents of abuse by (‘Father F’) on the 13th August 1987 when he was arrested. He was immediately stood down from all public ministry. The Church paid for his legal fees since every person accused of a crime is entitled to a defence.

(‘Father F’) was later permitted to undertake ministry in the Parramatta Diocese since the charges against him were dismissed and since a Clinical Psychologist’s 1998 report indicated that he did not present any problem to children.

I have no knowledge of any sessions between (‘Father F’) and Rex Brown as you mention.

(‘Father F’) last worked as a priest in 1992 when on the 1st of July his priestly faculties were removed by the then Bishop of Armidale and he was forbidden from any undertaking any public ministry. The diocese took this course of action because, although the charges against him were dismissed, there were continued rumours about him. Subsequently the Church’s Special Issues Resource Group (forerunner to Towards Healing) formed the opinion that he should not undertake public ministry due to these continued rumours.

(‘Father F’) was formally laicised on the 18th November 2005 and no longer has any priestly status in the Church.

Yours faithfully,

Most Reverend Michael Kennedy
Bishop of Armidale

On Wednesday evening, the Armidale Express issued the following statement on its Facebook page headed Clarification:

"The Armidale Express would like to make it clear that the person identified as ‘Father F’ in the story "Disgraced priest lives comfortably among us", published on Wednesday July 4, has never been employed as a journalist or in any other capacity by this newspaper, its sister paper, The Armidale Extra, or by our parent company, Fairfax Media.

In the past, Father F has occasionally contributed unpaid articles to the Armidale Express, however, the paper’s management decided to cease accepting Father F's copy in April 2012 after being informed about his background.

Although the ABC Four Corner's program about Father F showed our office and stated that he was a "regular contributor to local newspapers and employed to enter family homes gathering information for a survey funded by the Federal Government", in fact he is a regular columnist for another Armidale newspaper.

Father F's contributions to us were ad-hoc and dealt with historical subjects, and at no time was he ever requested by us to enter people's homes to gather information.

The Armidale Express, The Armidale Extra and Fairfax Media have no on-going relationship with Father F in any capacity."

I saw the clarification as it was posted and responded with an angry comment. Let me explain why.

The question of Father F's guilt or innocence nor the crimes he allegedly committed were not the reason for my response. Rather, it was anger at the Express itself.

Leaving aside the way the clarification identified Father F, to my mind it was disingenuous even hypocritical. I quote: "Father F has occasionally contributed unpaid articles the the Armidale Express."  If Father F is the person that seems to be implied by all the comments, the Express welcomed his contributions and ran them every week. And why not? To my knowledge, the then editor knew nothing of the matters revealed on the Four Corners story, nor did others connected with the paper including myself. I was a weekly columnist on the Express for a number of years. Father F wrote quite well on historical topics of local interest.

Continuing, and again I quote: "In fact he is a regular correspondent for another Armidale newspaper." I wonder what the fact that Father F wrote a column for the Armidale Independent  - a fierce competitor - has to do with anything except to demonstrate a holier than thou attitude.

The reference to "unpaid articles" made me smile. It adds to the vision of a local scribbler carried in the paper as an act of grace and favour. In fact, the Express paid none of its regular contributors including yours truly, and I contributed over 150 weekly columns!

To quote further:  "the paper’s management decided to cease accepting Father F's copy in April 2012 after being informed about his background." Really? So in April Armidale's main media outlet took the allegations about Father F sufficiently seriously to stop accepting his contributions.

I fully accept that local newspapers can face difficult choices when it comes to dealing with allegations about locals. Yet surely it is a little odd that a newspaper should wish to claim in its defence that they stopped dealing with a contributor having been informed of his background two months before the story broke nationally? And then the focus of their coverage is on, and I quote: "A SHOCKING exposé aired by the ABC’s Four Corners on Monday night dropped a prominent Armidale resident into the spotlight of allegations about a child sexual abuse cover-up within the Catholic Church."

In my response on Facebook, I described the Express clarification as mealy mouthed. It struck me as back-protection that would have made any of our politicians proud Was I wrong? I'm still cranky.

Postscript

Just in case I was being unbalanced, I watched the whole Four Corners program again. It's not pleasant viewing. The paper's concern is something I hadn't actually noticed the first time, the juxtaposition of a piece of commentary with a picture of the Express window. I think that I stand by my comments.

Postscript two

Tonight's ABC 7.30 Report has just reported on the matter. You will find the transcript and video here, at least for the moment.  It made me really uncomfortable because we are now dealing by trial by media. You will get a more balance picture if you look at the comments on this on both side.

Armidale is a small gold fish bowl. This matter has to go to a full police investigation for the sakes of all those involved.

Postscript three:

In a comment tonight on the discussion thread on this post, I wrote:

"First of all, a heartfelt thanks to all of you for your courtesy in discussing this difficult topic. You have educated me.

After coming home tonight, I did some more web searches triggered by comments including that relating to the Broken Rights, Janene's latest story and kvd's comments. For reasons that I will explain properly in a postscript on the main story, I am withdrawing from coverage of this matter for the present. However, I will leave the comment thread open.

I am not quite sure how to number all the anons! However, one informed anon commented, and I quote, "Jim, if you read the witness statements, court transcripts, spoke to families involved, etc, I don't think you would remain so impartial." I did not read this as a criticism, rather an objective observation.

I am not opposed to use this blog for campaigning purposes, but when reporting or examining issues of principle, my value add lies in impartiality, in my ability to delineate issues. This holds even when I am angry as I was with the Express. I asked readers for their judgments as a consequence.

As a part time blogger in a fast moving case like this one, I am not equipped to report in a conventional sense. I am not a newspaper. Further, some of the reporting that I might do even just providing links to past stories, is likely to threaten the chances of a fair trial.

As was noted, there is a difference between revenge and justice. If justice cannot be obtained by any other means, then there is a case for the use of direct action or the media to redress the balance. But there is also a question of balance.

Consider kvd's report on Mr Hadley. Does anybody believe that this (Mr Hadley's actions) will aid justice? To my mind, it is far more likely to have the opposite effect by impeding the chances of a fair trial, indeed even increasing the chances of a dismissal of any charges.

As I said, I will try to outline my views in a little more detail in a postscript on the main post."

I meant very sincerely what I said about my commenters. I stuck my head above the parapet on a sensitive issue, and the whole thing could have collapsed in a flame fight of type that we have seen too often before in the blogosphere. It did not. Instead, I gained a greater understanding.

I have grouped the comments that follow under headings to make it easier to understand the differing issues as I see them.

The Catholic Church

The Armidale Diocese has announced an inquiry into the matter and rightly so. Leave aside broader issues including legal questions, we appear to be dealing with a failure in due process in the previous investigation. This demanded impartial investigation as well as natural justice on both sides. I may be wrong, but an objective inquiry is required to determine the facts. This includes natural justice for Father F.

Failures in Legal Process

I am very careful in this area because I lack facts and do not have time to do the proper analysis. Have there been failures in general legal process in handling this matter?

Use of the Media to seek Justice

Are people entitled to use the media to seek justice denied through the courts or other systems? I would have thought clearly yes. That right is central to a free society. Note I said justice. More on that in a moment.

Role of Armidale's newspapers

This was actually my entry point, my anger at the Express clarification. Based on my commenters, I haven't validated the claims, the facts appear to be these:

• The allegations about Father F including some evidentiary material, were supplied to Damian Jurd and Daniel Powell when Christian Knight was Express editor. Armidale Independent Editor Joanna Harrison was informed at least twelve months ago. The allegations were also supplied to Matt Taylor, the Express editor who replaced Christian Knight.
• The papers continued to run material from Father F for a period, although according to the Express clarification, the paper dropped Father F when the paper was informed of the allegations in April. By contrast, the Independent continued to use his material. Neither paper launched any form of news investigation.

Subject to one qualification that I will come to in a moment, my sympathies are with the papers on this one. It's very hard being a local paper in a gold fish bowl. All sorts of allegations cross your desk about locals. That's the nature of local life. Further, the presumption of innocence has to hold, while journalist resources are limited. So you make judgements.

My qualification is the Express.

The clarification said, and this was one of the things that got me angry, "the paper’s management decided to cease accepting Father F's copy in April 2012 after being informed about his background." It seems to me, and maybe I am being too simplistic, that if the Express took the allegations sufficiently seriously to stop publishing Father F because they had been informed of his background, then they actually did have a duty to investigate them from a journalistic viewpoint.

A Question of Justice

Once the story broke, once it became clear that investigations were underway, the whole game changed. At least it did if you are interested in justice rather than revenge.

Whatever the results of any investigations or court cases, this whole thing has destroyed Father F in that one area in which he has rebuilt his life, his role as a local historian in the community that he loves and identifies with, that is central to his sense of self. Now maybe that's fair, although fairness in that sense is arguably linked to revenge rather than justice. Consider only justice. That's two edged, justice to both sides.

The media feeding frenzy since the Four Corners story has gravely damaged Father F's chances of getting any form of fair trial should a trial result. Let me quote from a comment by kvd:  

Just to note that driving around today, flicking radio stations, I listened to 2GB's Ray Hadley read - in full - that record of meeting which was published yesterday. He'd apparently had legal advice, so instead of "Father F" he was using (repeatedly) the name of the fellow.

He completed his recitation with the note that he was not at liberty to take either calls, or emails/texts on the subject - but the name was mentioned probably a dozen times.

Just mentioning it for the record.

Now with that type of coverage, how does Father F get a fair trial? 

Jottings - Slipper, the power of the Executive

With thirty boxes still to unpack, I am struggling to post tonight. Just a few snippets.

I haven't written anything on the Peter Slipper issue and don't feel strong enough to try to explain it all to my international readers. But just to give you a feel, consider these two stories:

• Slipper diary 'was sent' to LNP rival
• News named in Slipper case.

I must say that the whole thing bemuses me.

In my post, Jottings - the environment, entitlements and the High Court with a dash of media, I said in part:

At the end of High Court asserts the power of Parliament, I expressed the hope that Legal eagle would explain the implications of the school chaplain court case to us all. She did so in High Court Chaplaincy case and government contracting. kvd, a regular commenter on both blogs, expressed his continuing confusion. I share that confusion. The decision followed the earlier decision in the Brian Pape case and in a sense amplifies elements of that decision.

To my mind, the issue is not contracting as such, although the case has led the Commonwealth to foreshadow rushed legislation to validate a whole series of previous arrangements. Rather, the whole imbroglio appears to have profound implications for the workings of Government, with something of a baby and bath water flavour. Mind you, that's a dreadfully mixed concept!

Now kvd has directed me to this post by Anne Twomey: Parliament's abject surrender to the Executive. I think that she has well captured some of my concerns. Well, I want to unpack some more boxes!

High Court asserts the power of Parliament

When I moved house, a work friend kindly gave me a slow cooker as a housewarming present.Tonight I sat down to eat a stew cooked in the cooker and found the time to do some browsing. It's been an interesting time. In this post I want to deal with just one item.

For the benefit of international readers, Australia is a federation in which the Commonwealth is granted certain designated powers, the rest staying with the states. Overtime, the Commonwealth has used its financial muscle to expand into every aspect of Australian. Now the Australian High Court has effectively said tutt, tutt chaps, just because you have the money and want to do it doesn't mean that you can do it in any way you want.

The judgement summary on this point reads:

By majority, the High Court held that  the  Funding Agreement  and payments made to SUQ under that agreement  were invalid because  they were beyond the executive power of the Commonwealth. In the  absence of legislation authorising the Commonwealth to enter into the Funding Agreement, the Commonwealth parties relied upon the executive power granted by s 61 of the Constitution. Relevantly, s 61 provides that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". A majority of the High Court held that, in the absence of statutory authority, s 61 did not empower the Commonwealth to enter into the Funding Agreement or to make the challenged payments. In particular, a majority of the Court held that the Commonwealth's  executive power  does not  include a power to do what the Commonwealth Parliament could authorise the Executive to do, such as entering into agreements or contracts, whether or not the Parliament had actually enacted the legislation. A majority also held that s 44 of the Financial Management and Accountability Act 1997 (Cth) did not provide the Commonwealth with the  necessary statutory authorisation to enter into the Funding Agreement or to make payments to SUQ under that agreement

Much of the media commentary has focused on the implications for the Federation and for relations between Commonwealth and states. But if you look at this summary, it appears to affirm the power of Parliament relative to the executive. I think that's important.

I am looking forward to Legal Eagle's explanation. In a Facebook comment she promised to do so after she had finished her current round of marking. Please finish soon!

Australian High Court forces wife to give evidence against husband

One of the long-standing legal principles has been that a wife or husband cannot (at least as I understood it) be compelled to give evidence against the other. The Australian High Court appears to have overturned this understanding, at least so far as Australia is concerned. Decision here.

On the surface, this is quite a significant decision. Hopefully one of my legal blogging colleagues (Legal Eagle?) will elucidate all this.

Postscript

Legal Eagle has now discusses this case in Spousal right to silence abolished in Australia'

Speedo acts to protect brand

Here in Australia, the Sydney Morning Herald reports that the Federal Court of Australia has ordered a NSW central coast blogger to shut down a number of salacious and pornographic websites because they featured Speedo swimming costumes and domain names using the company's trademark. Swim wear maker Speedo took the action to protect its brand.

Given Opposition Leader Abbott's proclivity for appearing in public dressed in nothing but his budgie smugglers, I suddenly had this strange and bizarre thought! Not a good start for a Friday morning.

Actually, I am glad that Speedo took action. I am quite sick of parasitic sites that skim material even from this site.

Postscript

I wrote this post as a quickie because the story caught my eye. Through the wonders of blogging, I do love those who make comments!, Marcellous said:

Jim,

The SMH report is misleading or at least only tells half the story. You can read the judgment here.

You can track down the blog with a little simple googling but it probably won't be to your taste.

It's basically a pornographic blog - it's not so particular about speedos in the brand name sense - it also likes pictures of "aussiebums" for example - but mostly it's about when the speedos come off in a kind of fantasy-land of sand and surf and sex, and it is probably really a marketing gateway for pay-sites that lie just a few clicks further in.

The respondent is a chimera, or at least and most a pseudonym. So-called "Dave Evans" claimed he couldn't go to court because he was closeted and would have to out himself if he attended. That's a rather good joke.

Actually whoever is responsible for the blog is clearly an "adult industry" professional.

As far as I can make out, Speedo's lawyers haven't managed to track down the author of the blog in person. He (could even be a she) has communicated by email and presumably was served that way. However, I don't think it is really right to say that the site is in any way parasitic. It really does reference "Speedo" as a generic term. You know, as in "she was doing the hoovering."

The blog is still up although it will probably come down in a little while. There is some hint on the site that it will fold of its own volition (after all that free publicity, such a shame). Otherwise I think it might be quite cumbersome to get a US web-domain recognize orders of an Australian court which empower the Registrar to sign the relevant documents etc.

Speedo are also claiming damages. I'm still trying to work out what they will be.

My guess is that Speedo is sick of searches on the web for "Speedo" leading to a very not-safe-for-work site. And it's true, they do have to protect their trademark.

M's comment suggests that there are more to this case than meets the eye, so to speak. You see, I couldn't resist continuing the theme!

Seriously, the judgement (link in M's comment) is worth while reading. To my mind. it raises some interesting legal issues. 

Whigs, law & the concept of progress

Has The Law (caps) lost meaning? generated some interesting comments that I will come back too in later posts.

One issue that I want to address later is clarity in language and the importance of recognising variations in definitions. This is not a comment on the discussion on that post or on LE's The Art of Law, but on my own recognition that I may be using certain words in a different way to others.

I grew up in a world in the which the idea of progress, of advancement, was deeply embedded. To the people of that world, the First and Second World Wars and the Great Depression were part of living memory. I make this point because the idea of progress survived despite personal experiences of cataclysms that demonstrated the frailty and uncertainty of life.

This was also a world in which the now disparaged Whig view of history was still dominant. I say disparaged. Here I quote one commentator from the Adam Smith Institute, a UK Libertarian think tank:

"The Whig view of history" is more often than not now used as a pejorative. When first coined it was to describe a narrative where everything just got better all the time. Whiggish people (almost universally the Great and the Good among white men), Whiggish politicians (this is all for your own good!) and Whiggish activists (we know what is right for you!) enabled civilisation to scale previously unheard of peaks of delightfulness. Certainly it's true that many things done were imporvements, but it always carried the overtone that the next set of Whiggish ideas would enable the scaling of ever yet more ecstatic mountains of joyousness. You can't argue against those ideas, for, see, civilisation is made up of all the ideas that we have previously so righteously proposed.

Just at present, I am reading some material on the work of Dr R B Madgwick in establishing and developing the Australian Army Education Corp during the Second World War, work that flowed on to the establishment of adult education at the New England University College. I will write something on this later, for it provides an interesting context for some current discussion in Australia.

For the moment, I simply want to note that Madgwick held and acted on the Whig view of the capacity for human improvement.

 Law and the court system occupied a particular place within the Whig view of the world. Courts and law could be corrupt; the idea of the venal lawyer has a very long history. However, the courts and common law were also seen as one of the key underpinnings of British freedoms. To those holding the Whig view, the genius of the common law lay in its capacity to evolve.

Growing up, I would not have called myself a Whig. The term was restricted to those of particular political persuasions in, was part of the history of, the UK.

 To those on the left today, the Whig view of the world has been discredited because of linkages with Empire and England. To those on the economic right today, the Whig view of the world has been discredited because it is seen as interventionist, paternalistic.

Despite these changes, I find that I still hold many Whiggish views, including my belief in the possibilities of progress and human advancement.

This explains my personal discomfort at what I see as detrimental changes in the legal system, changes that I am seeking to understand. To my mind, I accept that this is simplistic, the law and legal system have become increasingly complicated and mechanistic.

Now that we as a society have apparently rejected the idea of progress and human advancement, it seems to me that it leaves the law as just another control device.

Postscript

My friend and colleague Noric Dilanchian has a new post, Is more law a good thing?  Like Noric, I am absolutely staggered at the way in which Australian minister Anthony Albanese apparently wants to use the volume of legislation passed as a measure of Government performance.

Has The Law (caps) lost meaning?

I would normally discuss this matter on my main professional blog and I did refer to it there in passing in If you have a hammer, everything looks like a nail, but I try to avoid exposing my confusions in that environment!

So what's all this about?

In The Art of Law, Legal Eagle followed up an earlier post of mine. Reading that post raised a real confusion in my mind. Simple put, what is The Law?

Now this might sound a bit stupid, so let me illustrate. I am speaking of common law countries.

Many, if not most, discussion on law centre on the courts, litigation and the adversarial process, yet a large proportion of law and legal matters is far more focused on facilitation of normal transactions.

A considerable quantity of law is actually concerned not with the law but with other disciplines. Take competition law. There questions such as the definition of markets are critical. While the law has a force, economists and economics are central.

As I understand it, and I am not a lawyer, common law centered on the role of precedents, on decisions by judges about cases based on general principles as defined through practice. Today, lawyers are more and more involved in simply advising on the meaning of specific laws or regulations.

Legal practice has fragmented into myriard fields determined not so much by law as by subject areas of legislation. Whereas lawyers used to follow decisions of courts, and they still do if to a diminishing extent, now they have to respond to an everchanging melange of discussion papers, laws, regulations, processes and reviews.

When I talk to my my legal friends, they talk about The Law as if it still exists. Yet when I listen to them, they actually talk about the laws all lower case. The Law may still exist, but it seems to me that it is a much dimished creature.

Or am I just confused? 

 

Twitter, privacy & the court system

This one passed me by. I record it now.

On 14 May in Privacy in a cyber-glasshouse world, Ken Parish looked at privacy issues. He concluded:

The effect of the ALRC (Australian Law Reform Commission) recommendation would be to institute for the first time in Australia a direct and immediate right to litigate through the courts for serious breaches of privacy.  As things currently stand, breaches of personal privacy are only directly actionable if they happen to involve the commission of some existing recognised civil cause of action e.g. infringement of intellectual property rights if someone’s photos or diaries are acquired and republished without their permission (as the St Kilda Schoolgirl is alleged to have done with photos of Nick Riewoldt); or if the acquisition of privacy-infringing material involves an actionable trespass.  You can mount a respectable argument that the current patchwork system provides sufficient protection of privacy and that any legislated general right to litigate for privacy infringement runs too much risk of recreating the old high stakes defamation litigation lottery under a new guise.

  Ten days later in Privacy in a cyber-glasshouse world – post-script, Ken said in part:

On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating.  In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries.  Most people lived in villages and knew everyone else’s business anyway.  Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.

Now Super injunctions, privacy and Twitter, Legal Eagle extends the discussion. She concluded:

Like Ken, I feel that we do not have a right to prurient information about celebrities: but whether the law can actually control the dissemination of such information in the present climate is quite another question.

This discussion actually bears upon other questions previously discussed on a variety of blogs: the way in which comments on social media can entangle people in a variety of potential legal actions; the responsibilities of providers such as Twitter for the comments made; the nature of cross-border issues and conflicts in a porous world; and the risk that remedies introduced for one purpose may lead to adverse results in other connections.

I am recording the discussion now because I think the issues are important. So I don't detract from Legal Eagle's latest post, feel free to comment there rather than here.        

Cognitive bias and the practice of law

This post is for Legal Eagle.

In a post at the start of May I wrote:

Staying with Club Troppo, Ken Parish's Rooting out Cognitive Bias 101seeks advice - a wisdom of crowds thing - on some seminars in jurisprudence seeking to correct perceptual bias. This led skepticlawyer to write a companion piece, Crowdsourcing bleg – getting lawyers to think creatively.

Now this must seem pretty dry stuff, and in some ways it is. However, bear with me for a moment.

One of the issues that I have been trying to think through is the reason why lawyers so often fail to address the real needs of their clients. This is directly related to cognitive bias installed during legal training, as well as the dynamics of the profession.

I decided to write a companion post, but found it almost impossible. Both Ken and SL address the issue from a macro level whereas my concern is very micro, professional failure in the handling of individual matters. I do want to write something on this, for I actually spend a lot of time on this blog trying to address cognitive bias, the way in which our mental frameworks affect our perceptions and judgements. However, it will have to wait.

Legal Eagle encouraged me to write my post. Normally I would put it on my Managing the Professional Services Firm blog, although my purely professional writing is suffering just at present. However, I decided to say something here because this blog has a wider audience.

In considering the brief remarks that follow, I think that it would be helpful to keep in mind that:

• Lawyers are trained to think in terms of law and legal responses.
• Legal agreements of all types are simply the legal wrapping placed around a transaction or arrangement. A fair bit of law is linked in one way or another to the interpretation of that wrapping. 
• Transactions generally fail not because of the legal wrapping, but because of failures in the transaction or arrangement.

Issues

In medicine, the first thing a doctor does is to undertake a diagnostic.

No doctor worth his professional salt would take what the patient says and simply prescribe based on that. Have a bad headache, here is a powerful pain killer. Yet this is what many lawyers actually do. Here's my transaction or arrangement. Please draw up a contract  or arrangement. Yes, client.

I accept that clients are their own worst enemy. I accept that we live in a just in time world in which clients have too little time to think and then issue skimpy email instructions expecting an instant response since its now at the top of their mind. Still, the reality is that lawyers are not trained in diagnostic techniques that force the client to define and test the detail of what they have in mind. Not the law, but the underlying transaction.

The case studies included in this post are all actual if disguised examples 

Case study. A Government agency was concerned about a GST issue. They went to a leading law firm seeking advice and a tax ruling. The law firm did not test the client's thinking, but simply accepted the instruction. The client did not fully understand what they were doing, nor the advice provided. Finally, the assignment was cancelled when the client realised that what they wanted could not work for practical policy reasons. The cost to the taxpayer was over $57,000. The failure was foreseeable.

Once the instructions have been issued, the legal document is drawn up. Most legal documents incorporate a series of standard clauses - definitions, remedies etc. For efficiency reasons, most law firms use templates and clause libraries to streamline the process. Nothing wrong with that, but!

Anybody who has seen a variety of legal agreements will agree that some of the clauses seem a little strange, even over-kill. This reflects the fact that the lawyer has not thought through properly the underlying purpose of the agreement. Play it safe and slot the past in.

During this drafting process, failures in the diagnostic increase costs. This leads to higher costs on both sides through a more extended drafting process. It also increases risk compounded by the mechanistic drafting process. 

Case study. The matter involved a joint commercialisation venture between a private company and a research institution to commercialise technology. The two parties had worked together well for some time. The challenge was express the new arrangement in a way that reflected agreed principles while terminating previous agreements.

The initial legal material supplied by the lawyer representing one party was unclear and missed several important steps. The new arrangements required intellectual property (IP) to be clearly specified. The other lawyer investigated and found problems in the definition of IP. When the lawyer tried to insist that the IP be properly specified, the impatient client terminated the assignment.

This case illustrates two very different issues.

The first is the failure of the supplying lawyer to properly identify the issues involved, relying to much on precedents with insufficient real analysis of the issues around which the agreement was to be wrapped. The second was the unwillingness of the client to take the time to supply proper information.

Impatient clients are a very real professional problem for lawyers. Clients feel that lawyers who try to insist on proper information are acting to inflate their bills. This can be hard to manage and requires people management skills, something that most professionals are not well trained in.

The problem of bill inflation and of cutting corners to get things done all links to charging patterns. The critical variables of time credited to a client, work in progress, the transmission of work in progress to client bills and the degree of time write-offs in the process are individually measured. This can make it hard to commit time that professionals believe is warranted when that time might have to be written off. 

in the case I was talking about, the final result may be okay so long as nobody else challenges the IP and the parties themselves do not fall out. In either case, the dance of litigation may begin.

Litigation is a chancy business because it favours the big, is often uncertain in legal terms and becomes a gladiatorial content that feeds egos. To a substantial degree, litigation is as much about non-legal tactics and strategy as it is about the law itself.

Effective litigation requires an understanding of client objectives and options especially when representing smaller clients, for these clients are at greater risk. Good lawyers have to make judgements that have nothing to do with law although they may take legal expression, everything to do with negotiating or forcing an acceptable outcome. Many lawyers just get locked into the gladiatorial contest or lack the skills to understand their client's real commercial position. Other lawyers and barristers become too locked into specific legal issues when the case itself actually has little to do with law as such.    

Discussion

This post is not an attack on the legal profession. I actually have  a very high opinion of lawyers as a whole. Rather, I have been setting a context focused on the practice of law.    

Both the teaching and practice of law are changing. Once the majority of those studying law whether as articled clerks or at university planned to go into private practice and were taught by those in practice. Today, the majority do not intend to go into private practice, nor are they taught by those in practice. This changes things.

If we look just at those going into practice, the way that they are taught does introduce perceptual bias. They are trained to think of the law as the law, not a means to an end. This is not new, but is deeply embedded.

Obviously, clients expect lawyers to have a knowledge of law, to be lawyers. That is a necessary precondition of practice, but it is not a sufficient condition. Lawyers are failing clients because they cannot stand outside the law and recognise and analyse other elements.

The solution? I do not have one. I can only indicate things that I consider to be important.

One thing is to focus on the discipline of professional practice, not just legal practice. Doctors do face similar problems to lawyers. Lawyers can learn from the concept of the diagnostic.

A second thing is to force lawyers to recognise the non-legal aspects of the work they do, forcing them to think outside the box while acquiring new skills.

This may sound abstract, so let me make it concrete.

I have been involved in the development of training on contracts and contract drafting. These are pretty important to the practice of law. We use case studies that require participants to actually analyse the business problems facing their clients and to relate suggested legal solutions directly to those business problems.

A small thing, but quite effective in forcing paradigm shifts.

Postscript

I woke up this morning still thinking about this post. Sad, I know!

All professions teach ways of thinking. One of the problems in multidisciplinary work, the reason why true multidisciplinary working is so difficult, lies not just in variations in fields of knowledge but also in patterns of thought. For that reason, some of the professional writing I have done has been concerned with ways of encouraging true multidisciplinary working.

In his original post that started this discussion, Ken Parish referred to the concepts of frames and framing. I first came across this concept a long time ago through the work of economist Kenneth Boulding on images, the term he used to describe the frameworks that we all use to simplify and interpret a complex world. In my writing on this blog I have used the term mental mudmaps.

At the time I first read Boulding I was back at UNE doing postgraduate research in history. I found the concept useful not just in thinking about the past, but also my own interpretation of the past. Take, as a simple example, the effects of speed of travel on the way we see the world around us. This really does affect the way we see the world.

A little later, I found Boulding's concept and the ideas I had developed based on the concept very helpful in developing new policy that required changes in thought. One problem today is that so much politics and policy actually plays to, reinforces, current frames.

Ken's focus in his post was on the possibility of introducing his students at CDU to problems of cognition and cognitive dissonance. He wrote:

I have in mind a couple of seminars that would explain the basics of each of these research approaches to cognitive biases or shortcomings.  We would also have students undertake versions of some of the surveys that led to these research findings.

However, what I’m also wondering is whether there are any well accepted practical techniques for diagnosing and correcting such cognitive biases in ourselves, other than the obvious but difficult one of attempting to adopt a skeptical stance in interrogating one’s own thought processes, especially when dealing with a question likely to arouse strong emotions?  And what useful indicators might exist to tell us when to engage in that sort of careful skeptical reflection about our own motives, assumptions and thought processes?  Heuristics and habit are unavoidable and useful behaviours.  None of us has the time or energy to reflect carefully and skeptically on every decision we make in our daily lives, and in most cases repeating behaviour that worked previously is both efficient and sensible.  Are there any reliable guides for picking when that might not be so?

I obviously come at the problem that Ken is trying to address in a different way. I think that you can make people aware of things like framing and the way it affects thought in a general sense. I think that you can use examples that will help people interpret the effects of frames or images, aiding them in understanding others.

To go from this to increased ability to critically monitor our own frames and preconceptions on an on-going basis is much more complex. I'm not sure that there is an answer to Ken's final question. I also wonder a little whether or not its the right question in the specific context Ken is talking about.

This is not a criticism. Ken was trying to articulate ideas. But its a big leap from increasing understanding in a general sense to individualising it. I suppose my feeling is that it would be best, and that was in a sense the purpose of this post, to link the concepts to the actual theory and practice of law.                

Cognitive bias & Australia's position in the world

In yesterday's post Blog performance & a blogging meander I referred to problems associated with perceptual or cognitive bias in the practice of law. Legal Eagle kindly commented:

Can't wait for your cognitive bias and lawyers post, Jim. One of my theories is that lawyers get too tied up in the arguments and the joy of the fight, and forget that they are there to do what is best for their clients... I saw it a few times when I used to work for a judge...

It will take me a little while to put that post together. I am sure that LE is right so far as court is concerned. But in many areas of law and especially commercial law, the core problem lies much earlier in the process, in the drafting of the original documents. Lawyers are trained in law and are there to provide legal advice and "solutions". I have put solutions in inverted commas for emphasis. This leads to the misapplication of law to what are in fact non-legal problems.

You see the same problem in public policy as well in the proliferation of legislation and regulation. However, I want to focus just on the processes involved in giving legal advice and then drafting legal documents.

Problems with Kiki dealt with a quite entertaining (entertaining for the audience) problem that arose for a Newcastle woman because her personalised number plates carried her nickname Kiki. The New South Wales Roads and Traffic Authority asked her to show cause why the plates should not be withdrawn because Kiki apparently means vagina in Tagalaog. Ramana has an old friend called Kiki and responded with  Language And Bureaucracy. Now in a comment on the post, cousin Jamie reports that they have a friend called Kiki whose mother named her after an 80s English television character called Kiki the Frog!

My post Tinkler rides to Newcastle's rescue - again began with the line "I have to say that it's helpful to have a local billionaire."

To those that have shall be given. That phrase encapsulates one of my concerns about the process of economic change.

I have written a fair bit on this blog about the University of New England because it's my university and deeply entwined with my family.

When UNE began, there were local businesses and families that had money and backed the place. It would not exist otherwise. Putting it in today dollar terms, you had a million here, four million there, a couple of hundred thousand top up to fill a gap. The problem for UNE is that the economic changes in the second half of the twentieth century effectively destroyed much of the local donor base. This puts UNE at a growing disadvantage as compared to, say, Sydney University.

Obviously I am concerned with UNE because it is my university, but it actually bears upon something that I have been writing about in regard to Australia's position in the world, the hollowing of the Australian economy.

Just as those in New England did not properly envisage the impact of changes over which they had no effective influence, so with Australia today. Market forces in a globalised economy may redistribute economic activity so as the maximise global gains, but one should make no assumptions about Australia's place in the process.

Australia today could well be like UNE in the past, about to have its economic underpinnings ripped out. This won't happen overnight. It took three decades to destroy the economic base from which UNE drew part of its strength. But it can happen.

I am now straying into territory that I have previously marked out for a new series of posts. Still, consider this.

In the 1980s, the NSW and Australian Governments began to talk about the role of Sydney as a global financial centre. The term global Sydney dates from this time. All sorts of reasons were advanced as to why this might happen: good telecoms, stable government, closeness to Asia.

Has it happened? To my mind, no. It is now hard to see Sydney as anything but a subsidiary centre.

This post is long enough. Part of the problem is actually cognitive bias created by Sydney's place as a big fish in a very small pond. That happened to UNE as well. But that's another story.  

The Weaver case - climate change, defamation and the internet

Hat tip to Neil Whitfield's Google Reader for this one.

In desmogblog.com Richard Littlemore reports, Climate Scientist Sues National Post, on a defamation case brought by Canadian climate scientist Dr Andrew Weaver against the National Post newspaper and its publisher, editors and three writer: Terence Corcoran, Peter Foster and Kevin Libin. The report includes a link to the statement of claim lodged by Dr Weaver.

Just to summarise a few key points as I understand them:

1. The National Post appears to be published in Ontario. The case was lodged in British Columbia where Dr Weaver lives on the basis that the on-line material was available in BC.
2. Dr Weaver alleges that the National Post, its writers and intenet commentators defamed him over his views on climate change. 
3. In addition to damages, Dr Weaver is asking for a Court order requiring the newspaper to help track down and remove defamatory material. Part of his argument here is that the paper via things such as Digg and its article email facility created a channel that allowed the viral spread of the defamatory material.

Do read the statement of claim. Certainly some of the material would appear to fall in the playing the man rather than ball class, while other material would be classified in Australia as fair comment within the rough and tumble of debate. However, the overall pattern will be familiar to any one with exposure to the internet.

A few comments on the case:

1. As I think has now been established in Australian law, just because you are domiciled in one location does not prevent action being taken against you in a different jurisdiction if you are using what is in effect a global platform.
2. If one of your commentators defames someone, then you may be responsible.
3. If, and this is I think the really new element raised by the case, you consciously create channels to facilitate the distribution of your material, then you may be liable for that distribution.

In a practical sense, most regular bloggers are pretty conscious of the need for care. It's not really a question of law, but of equity, manners and common sense. I am not sure, however, that the same can be said of some of the intrusions into the on-line world by the main stream media where what we call in Australia the shock jock component is more obvious.

I must say that I would be interested in informed comment on the case from some of our legal blogging friends such as marcellous or skepticslaywer.

Postscript: 

A helpful comment from Mark Francis led me to another Canadian case, the link libel case.

A former Green Party Campaign Manager Wayne Crooks argued that when a Canadian website posted links to two US websites that featured defamatory statements it was the same as publishing defamatory material itself.

In 2008, a British Columbia judge dismissed the lawsuit, saying the links were like a footnote or a reference to a website in a newsletter. Now Mr Crooks has been given leave to appeal to the Supreme Court.


Another interesting case to watch.

Saturday Morning Musings - difficulties with whales

The current imbroglio over whaling in the Southern Ocean between the Sea Shepherd and Japanese whalers provides drama and some great visuals. My only difficulty is that I don't think that you can believe a word either side says.

The current Australian Government is in a difficult position on whaling, as was the Howard Government before it. It is opposed to whaling, as is majority Australian popular opinion.

Internationally, Australia appears to have have limited options. Because I did not understand the structure of the International Whaling Commission nor its history, I spent a little while pursuing it and the history of the Antarctic Treaty through various Wikipedia entries.

As best I can work out,  Australia may be able to mount a legal international challenge to Japan's scientific whaling program. However,  It would appear that all Japan has to do to legitimise its position and move to full commercial whaling is to withdraw from the IWC and, possibly, the Antarctic Treaty as well since this limits Antarctic activities to scientific ones.  Norway, which carries out commercial whaling, remains a member of the IWC but is able to whale in Northern waters because it previously lodged a formal objection to the actions limiting commercial whaling. 

The domestic position is more interesting from a legal perspective, in part because it involves a continuing outcrop of Empire.

Australia lays the greatest territorial claims to Antarctica of any nation.

In 1933 a British Imperial Order transferred claimed Antarctic territory to Australia, a transfer accepted by an Australian Act of Parliament in that same year. Since then, Australia has consistently maintained its formal ownership claim, and thus the formal application of Australian law to Australia's Antarctic Territory.   This was recognised by a January 2008 Federal Court ruling that Japan's so-called scientific whaling program in the Southern Ocean violated Australian law.

Australia's problem is that only four countries - New Zealand, UK, France and Norway - recognise Australia's claim. More countries including Japan do not. The 1961 Antarctic Treaty to which Australia is a signatory essentially did not deal with territorial claims. This means that while Australian law formally applies, the capacity of Australia to practically enforce any domestic court decisions is limited. Further, any attempt to do so risks significant damage to other Australian interests.

All this means that while oppositions may pontificate, all Australian Governments are likely to continue to temporise to some degree, no matter what the strength of public opinion within Australia. 

 

Multi-ethnic communities - Adolf Hitler's contribution

I finished my last post, Multi-ethnic communities - history's lessons, with this comment:

Now that I have got this particular obsession (the capacity of very different
ethnic groups to live together in harmony), it might be interesting to see just
what history tells us about multi-ethnic success stories, as well as
failures.

Dealing with a failure first. The picture that Mark Mazower paints of the administration of Hitler’s empire in occupied Europe is absolutely chilling. Hitler should not have lost this war. He lost because his own narrow racist obsessions destroyed the very things he required for success.

The difference between Italian leader Mussolini and Hitler can be simply summarised: whereas Mussolini was driven by visions of Rome recovered, Hitler was driven by visions of Race. Other things came in, but that really sums it up.

Hitler’s only contribution to civilised life, and it is not an insignificant one, is that in his mad obsession he crystallised, took to their logical extreme, ideas that had been built into European thinking and thus discredited them. In doing so, he laid the basis for the Nuremberg trails and for subsequent international action against war crimes.

No matter how weak and conflicted present international approaches to problems like Ruanda or Darfur, the very idea that the international community has the right to intervene to try to limit genocide is largely due to Adolf Hitler.

In The importance of international law - a note, I noted the importance of international law in constraining blind national self interest as well as human savagery.

This remains my view. International law is the first building block in encouraging different ethnic groups to live together in harmony because it imposes sanctions especially on official leaders who want to play the race or ethnicity card.

Of course they will continue to do so, but it is a start.

Note to readers: You will find a full list of posts in this series here.

Milan Deroc and the rules of war

In The importance of international law - a note I pointed to the importance of international law in constraining blind national self interest as well as human savagery.

Some years ago I was given a fascinating insight into this topic through conversations with Milan Deroc. Milan and I were both working on our PhD theses at the University of New England and shared a room for a period.

Milan's thesis, The Serbian uprisings of 1941 and the British response / (1985), covered a particular episode during the Second World War. This was real cloak and dagger stuff set within a context of Balkan politics and the evolving relationship between the Allies and the Soviet Union.

Milan himself was a fascinating bloke.

I am not sure when he was born, I guess around 1918, because he entered the Royal Yugoslav army in the last officer intake before the start of the Second World War. He became a POW,then (much later I think) came to Australia from Yugoslavia.

Milan's story emerged in snippets as we chatted. Individual points emerged - I think an Uncle had been PM of Serbia at one point prior to the First World War; the links between Belgrade and Paris; visits to pre-war Paris as a young man; sipping drinks in Paris watching the world go by.

At the time we shared a room, Tito had only recently died. Yugoslavia, literally South Slavia or Land of South Slavs, still existed.

The politics of the Balkans are incredibly confusing to an outsider. Their interpretation is also much affected by ethnic, national and political positions, and not just within the Balkans themselves.

I know of no easy way of summarising Balkan history. There are, however, two key points to remember.

The first is that the area has been a zone of competition between rival interests for a very long period; between the Roman later Byzantium Empire and invading peoples; between Byzantium and the emerging Ottoman Empire; between the Ottoman Empire and the Holy Roman later Austro-Hungarian Empire; and between Austro-Hungary and the Russian Empire.

The second point is that this history created an ethnic and religious patchwork quilt. Within this, forces of ethic nationalism and irredentism warred with each other and with the ruling power. The Austro- Hungarian Empire in particular faced the problem of maintaining unity in the face of religious division and ethnic unrest. World War One was one outcome.

At the time Milan was born, his country had only just been formed as an outcome of the peace settlements. It was then known as the Kingdom of Serbs, Croats and Slovenes, combining the Kingdom of Serbia with other parts of the the former Austro-Hungarian Empire.

The new Kingdom was an uneasy combination of the pan nationalism of the south slavs with more specific ethnic nationalisms and especially Serbian nationalism. It was also still marked by religious divisions - Muslim vs Orthodox vs Catholic. There was also resentment within the new country at the dominance of the Serbian ruling classes.

Milan would have been at primary school when the Kingdom changed its name to Yugoslavia. He was both Serbian and Yugoslavian at the time he entered the Military Academy.

The country he returned to after release from POW camp in the USSR was very different. In The importance of international law - a note I said of the First World War:

The use of propaganda and dirty tricks on all sides during the war intended to damage the enemy while maintaining home morale created a climate that both prevented peace moves during the war and then poisoned the aftermath. Attempts to destabilise Governments in other countries exported revolution and later civil strife in ways none foresaw.

The Second World War was no different. During the War the Allies had shifted support from the Royal Yugoslav Government in exile to the Communist partisans. For their part, the Germans played to Croatian nationalism through the creation of a Croatian puppet state.

Milan returned to a communist Yugoslavia. He also returned to one in which ethnic and religious divisions had been further inflamed by the War.

Like my own thesis, Milan's work was in some ways an exploration of his own past. Again like mine although much more so, he faced a difficult task because he was writing outside - indeed challenging - commonly accepted views.

Milan was multi-lingual. Prior to the War he spoke Serbo Croat, French and some German. During the war he learned Russian. He needed all these languages to pursue his investigations through German, Austro-Hungarian, Russian, British and US archives.

The work was painstaking and sometimes difficult. Painstaking, because he needed to check precise dates and orders of events, cross-tabulating between different accounts. Difficult, because he needed access to very specific records of still sensitive war time operations.

Take, as an example, the question of a radio. As I remember, this was carried into Yugoslavia by a British operative. The official story was that he had been killed by the Chetniks. While the Chetniks denied this, it was used as one of the ostensible justifications for the switch in British support to the Partisans.

By careful checking of records in four national archives, checking that went down to the log-books of a British submarine as well as unit records within the German Army, he traced the radio's journey. The final clue came from USSR archives. Here he was able to establish that the radio in question was being used in communications between Moscow and the partisans at a time when it was alleged to be in Chetnik possession.

Milan's work focused in part on the laws of war and the way they were observed. This included questions such as the legal position of a defeated army where their Government had surrendered.  

In all this, two examples stand out in my mind.

The first is a unit level example.

The Germans announced that for each German soldier killed, so many Yugoslavs were to be executed. In the case of one attack, the German unit records say something like this. So many German soldiers killed minus the number of attackers killed = the number to be used in calculating the number to be executed in reprisal.This is a very precise and legalistic way of doing things.

The second is a little more complicated.

As I remember it, under the rules of war, a defeated army must lay down its arms. Units that keep fighting have no legal protection. Once the Royal Yugoslav Government was established in exile and recognised by the British, then its fighters were recognised as soldiers. By contrast, the Partisans were treated as what we would call today terrorists. They had no protection.

Now the odd thing here is that when the British Government switched its recognition to the Partisans, the Germans also changed their position. Now the Partisans were soldiers, those on the other side including especially the Chetniks would be classified as terrorists if they fought the Germans.

I am not sure that I have all this right. It's a long time ago. However, it does illustrate my starting point, the importance of international law (and conventions) in constraining blind self-interest and savagery.