Hockey v Fairfax: Defamation - The Substance Survives But Not the Spin

In the recent case of Hockey v Fairfax Media Publications Pty Limited[2015] FCA 652, handed down on 30 June 2015, Justice White of the Federal Court has found in part for the Federal Treasurer Joe Hockey, in his defamation case against the Fairfax Media. A case directed to a series of articles, twitter posts and advertising signs and placards which appeared across the three Fairfax Media newspaper mastheads (The Sydney Morning Herald, The Age and The Canberra Times) on 5 May 2014. Receiving particular attention, and raising the most reaction, was a page one article published under the headline "Treasurer for Sale" in two of the Fairfax newspapers. As a result of the decision, the Federal Treasurer received an $80,000 payout for two tweets from The Age's Twitter account in May 2014 and a $120,000 payout for similar words on newspaper advertising signs and a placard - in all a total of $200,000 in damages.

Decision a Victory of Sorts

While in some sources, the decision has been seen as a total vindication, such as was sought by the Federal Treasurer, the decision is reported by others as not being a total victory for the Federal Treasurer, with one commentator, Associate Professor David Rolph, a media law expert at the University of Sydney being reported as saying, that the core decision by Justice White was:

". . . unsurprising and orthodox given the principles of defamation law as they are, . . .What was found to be defamatory was the posters outside newsagents and the tweets that were sent to promote the story. But the article[s] itself, with the headlines and the allegations set out, were held not to be defamatory."

Substance Fine - Spin Not So

In effect, the decision seems to target the selling of the article, not the substantive story, which was not found to have defamed. Thus, in respect of defamation being found proven against Fairfax Media, it was found to lie in the material promoting the article on social media and generally, rather than the article and headline itself.

In this way, the decision of Justice White throws up a novel twist to the law and glaringly highlights some of the legal pitfalls that may lie with social media, such as Twitter and Facebook, which rewards quick response and often snappy concise content stripped of context and explanation.

Arising out of the judgment there is, as was pointed out on the PM program, the implication for editors and journalists in general that what is tweeted and what is put in headlines is, as a result of the decision, ". . . substantially more dangerous than the stor[y] itself".

In the decision, Justice White distinguished Charleston v News Group Newspapers Ltd [1995] 2 AC 65, a UK decision in which two television actors were allegedly defamed by a page one article in the News of the World newspaper screaming "Porn Shocker for Neighbours Stars" which also featured doctored images from a computer game. In that case, it was made clear that headlines and photographs should be read in the context of a newspaper article but in the current case, Justice White said that the words "Treasurer for Sale" assumed a different complexion when they were reproduced in isolation on Twitter and on an advertising signs and placard. Referring to cases which make it clear that newspaper posters are in a "special position", because they are published to people who may never read the "very considerable qualifications" in a newspaper article, at par 160 Justice White states.

". . . It was common ground that the meaning conveyed by the posters is to be assessed on the basis that they were a discrete publication. In World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725, Glass JA said that 'posters stand in a special position, for the obvious reason that they are published to many persons who do not read the newspaper itself'. Glass JA referred in this respect to the finding of the New South Wales Court of Appeal in West v Mirror Newspapers Ltd (unreported, 14 May 1973) that 'a plaintiff may declare upon words published in a poster, and disregard the very considerable qualifications placed upon those words by what appears in the newspaper, . . . "

In the current case, Justice White indicated the poster was read in the context of the "heightened consciousness of issues of corruption in New South Wales at the time" around ICAC investigations into other political figures and would have for those who read no further conveyed a different meaning than for those who read the full article. At paras [168] and [169] he says as follows:

"168 In the circumstance of the heightened consciousness of issues of corruption in New South Wales at the time, to which I referred earlier, some ordinary reasonable readers are likely to have understood that the poster was indicating that the SMH contained an article concerning corrupt conduct by Mr Hockey. The words “for sale” implied that that conduct involved the receipt by him of payment of an improper kind, or a willingness on Mr Hockey’s part to receive such payments. In context, the ordinary reasonable reader would have understood there to be an assertion that Mr Hockey was taking, or willing to take, payments which were influencing his decisions as Treasurer of the Commonwealth. That is to say, ordinary reasonable readers would have understood the poster, considered by itself, to be conveying imputations (c) and (d).

169 Those readers who later read the SMH article would, for the reasons given earlier, have appreciated that that was not what the SMH was in fact conveying. However, those who did not read the SMH article would not have had their initial understanding removed in this way."

Is Our Defamation Law in Need of a US style “public figure” doctrine?

Again, this case raises questions as to whether a public figure like the Federal Treasurer should be able to be criticised more widely by the media and public alike, than an average citizen, and that recourse to laws like defamation should not be as readily available for public figures and politicians in an open and democratic society where government in particular is meant to be accountable. As The Conversation states:

"The Australian people deserve a more robust debate. It is worth considering whether we should follow the US 'public figure' doctrine, which makes it harder for politicians to be successful in a defamation claim."

An interesting add-on to this is that in times when technology and Google are here, the decision and all that surrounds it will linger-longer, for as is pointed out by The Conversation:

"The irony in all of this is the attention it has brought on the issue, and on Hockey. The public might have long forgotten Fairfax Media’s headline, but with this decision, the wound is re-opened. Google 'Treasurer For Sale', and see what happens."

The Take Away

The decision is an interesting decision that makes the general public more  cautious about how they personally will use Twitter in future - maybe just for LOL Cat stories? Can cats sue? 

Sources:

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 (30 June 2015)

Joe Hockey's defamation win highlights the legal pitfalls of social media (SMH - 1 July 2015)

Hockey’s defamation win is dark news for democracy and free speech (The Conversation - 1 July 2015)

Joe Hockey awarded damages in defamation case against Fairfax Media (ABC PM Program Transcript - 30 June 2015)

Government Introduces Citizenship Amendment (Allegiance to Australia) Bill

On Wednesday (24 June 2015), the Australian government finally introduced the much debated and speculated upon proposed changes to Australian citizenship legislation. The changes proposed in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance Bill) will primarily give authorities the power to revoke the Australian citizenship of people who hold dual citizenship convicted of terrorism offences.

Key Changes Proposed by the Allegiance Bill

The Allegiance Bill proposes three mechanisms that will lead to automatic loss of citizenship:

1. There is a new provision where a person renounces their citizenship if they act inconsistently with their allegiance to Australia by engaging in certain terrorist conduct;
2. There is an extension to the current loss of citizenship provision for a person fighting in the armed forces of the country at war with Australia. Under the extension a person ceases to be an Australian Citizen if they fight for, or are in the service of, a specified terrorist organisation overseas; and
3. A new loss of citizenship provision if the person has been convicted of a specified terrorism offence by an Australian court.

The above three key changes, it should be noted, are all automatic, requiring no ministerial or executive action to apply; and, as per the Minister for Immigration and Border Security's second reading speech, are all proposed under the caveat that:

"In accordance with Australia's international law obligations, no-one will lose citizenship under any of these provisions unless they are a national of another country".

This meaning the law, once enacted, can only be applied to those already having or entitled to dual citizenship.

Policy Behind the Changes Proposed

In introducing the Allegiance Bill into Parliament, the Minister stated that it was the implementation of the Australian government's promise ". . . to address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities".

In his speech, the Minister focused on the view that the proposed legislation emphasised ". . . the central importance of allegiance to Australia in the concept of citizenship". The Minister saying also that because the world had changed ". . . so our laws should change accordingly". The Minister then announced a purpose clause to be inserted into the Allegiance Bill stating that:

". . . by these amendments, the parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the safety and shared values of the Australian community, demonstrate that they have severed that bond and renounced their allegiance to Australia".

The purpose clause which uses concepts from the current Citizenship Actpreamble is effectively a reworked definition of "Australian citizenship" as it is seen by the government, with the government stating its intent, to be implemented by the changes in the Allegiance Bill, is the protection of the community and the upholding of the communities' values, rather than punishing people for terrorist or hostile acts.

More interestingly with respect to the focus on the term "allegiance" is the view expressed by the Minister that:

"The concept of allegiance is central to the constitutional term 'alien' and to this bill's reliance upon the aliens power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community."

This seems to be foreshadowing how the government might respond to any challenge to the legislation in the courts, particularly in the High Court.

Further, because the proposed changes are delivered in sections of the Citizenship Act which are "automatic" or "self-executing", that is, rather than requiring a decision by the Minister, the sections operate once a situation exists or criteria are met - they are seen as avoiding opposition from some of the government's senior ministers and legal experts who argued issues and challenges would arise legally and constitutionally with respect to the separation of powers.

Comment and Reaction

The ABC reports Constitutional lawyer, Professor Greg Craven as saying:

". . . a person's citizenship could lapse or self-cancel if they fell under a certain category.

There's no action by a minister, there's no action by the executive Government of the Commonwealth, and that's important because it means that you're not having an executive officer exercising judicial power,

If your citizenship did lapse in that way, and you presented yourself in Australia, you would be perfectly free to say, 'No, that's not the case, I didn't do it, I wasn't there, I wasn't a member of that body', and ultimately that would have to be determined by a court."

In this way, Professor Craven, is reported as saying the matter is open for a court appeal and would counter concern the process could be abused:

"It's a fundamental distinction, because in Australian law only judicial officers can exercise judicial power, . . "

A contrary view and one that points to evidence issues, is that of Greg Barns from the Australian Lawyers Alliance whose criticism as reported by The ABC is:

"On who's evidence are we going to rely? It's unlikely to work, it's certainly unfair, and it's unnecessary. . . There's no doubt there are still constitutional problems with this bill, and that's one of them. . . . It is not the executive in our system of governance to assume the role of the judiciary, and that's what it looks like."

The Federal opposition is reported as saying it will support updating the citizenship act to automatically strip citizenship from Australian terrorists with dual citizenship as long as it doesn't render people stateless. The Federal opposition is not so supportive of the idea of the law applying retrospectively, a possibility floated by the Prime Minister, the view of the opposition being it should be examined by the Parliamentary Joint Committee on Intelligence and Security:

"It's not an idea that we would normally support ... but we'll look at what the proposal actually contains today and the appropriate place for that to now go is the committee and we'll work through that issue on the committee. . . It is a question that needs to be examined carefully by the committee." 

The Bill is expected to pass the House of Representatives and the Senate where the opposition is expected to support it.

References

Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and 2nd Reading Speech

Terror citizenship laws: Lawyers divided on merits of bill to strip dual nationals of citizenship (ABC News - 24 June 2015)

Proposed terror laws open to challenge, says legal expert (The Australian - 23 June 2014)Jnr

Australia Attacks Scientific Basis of Japanese Whaling in International Court

As Australia's attempts to get whaling banned, Australia has mounted an attack on the scientific basis claimed for Japan's Antarctic whaling as it broadened its case for a ban by the International Court of Justice.

The 26-year-old Japanese program, conducted under a self-awarded special scientific permit, has taken upwards of 10,000 whales, the International Court of Justice has heard recently.

The Sydney Morning Herald reports that the counsel and witnesses for Australia have told the International Court in The Hague that the Japanese whaling research program (known as JARPA II)... "had made a negligible contribution to science".

Describing the program as a "parody of science" Professor James Crawford, QC is reported by SMH as saying:

''JARPA II is not a program of science, it is a parody of science,...It is designed to keep Japan in the whaling business, come what may.''

While Philippe Sands, QC, has according to SMH told the court that while Japanese whalers may have collected data on thousands of body parts, their program was nothing more than a collection of data: "a heap of stones, not a house."

Australia's case referenced the fact that a quarter of a century has passed with thousands of whales being killed and yet Japan is unable to offer any "discernible progress". The case was being prepared through written submissions because Japan had refused to respond to criticisms of its science taking the view that "if we say it's science its science".

Other criticism came from Australian Antarctic program chief scientist Nick Gales who is reported to have told the court that Japanese whalers' research had added nothing to what was already known about what Minke whales ate, or their age at death.

The case is being heard before a panel of 16 judges and is continuing.

Source: 'Science' of Japanese whaling attacked in court case (Sydney Morning Herald)

Metadata Warrants at What Point Should there be Control?

Recently the federal Attorney-General has declared that Australian law enforcement “would grind to a halt” if the police and other law enforcement authorities were compelled to apply for a search warrant every time they wanted or required access to the telecommunications data of Australians (see article published in delimeter.com.au).

Figures released in the federal Budget Estimates hearing sessions recently (Monday 27 May to Friday 7 June 2013) indicate that the Australian Federal Police made more than 40,000 internal requests for telecommunications ‘metadata’ (being defined as data pertaining to the numbers, email addresses, time, length and date involved in phone calls or emails, but not the content) in the past financial year. At present no warrant is required to support these requests.

Given this increasing access to metadata by Australian law enforcement it is no surprise that civil liberties groups and political groups have sought to have such activity controlled and called for he introduction of laws to control this.

Adding to the debate in recent times has been the fact that the US spy agency the NSA (National Security Agency) has been reported to have gained backdoor access to the data servers of major technology companies like Apple, Google and Microsoft - raising concerns among many of what might be made of such information and how it might be used. To this might also be added he use hat might be made of such information by media outlets who, if the News of the World scandal is any indication, seem to be able to obtain this information at will.

This issue of access to the mountains of collateral data produced by the Internet is one that has been attracting more attention and firing debate. It catches my attention because I constantly marvel at how all free societies argue vociferously against a "big brother" like totalitarianism yet seem uncannily to find ways to create it or empower it. The issue of law enforcement and metadata warrants seems to be yet another instance of where unintentionally, even unknowingly we could be delivering information to government which could easily be abused by a government minded to do so at some point in the future.

Modern Man Discovers Financial Gravity

When Sir Isaac Newton sat under his favourite apple tree, or so the conventional story goes, he dozed off only to be rudely woken by a maturing apple clonking down on his head. it is the sharp resulting pain that it is said led to his sudden realisation, simple though it may sound, that "what goes up must inevitably come down", from which the great man went on to contemplate that a force "magnetic like" was in the earth which attracted everything to it including man. Inevitably this force had the power to attract everything leaving the planet's surface back to it - the force we now call gravity.

This got me thinking that in recent times there have been some gravity defying events, for example, the  GFC which saw most of the world economies fall but in defiance saw most of the worlds wealthy escape unscathed, unlike the less wealthy who become even less wealthy, loosing jobs, getting less interest from banks. When it comes to the rich I think gravity is defied, wealth heads in an upward direction building on its self and seldom comes down as the rich are favoured by governments, banks and most institutions in society. Government of the conservative type has even been said to say that "we should favour the rich as wealth will trickle down"! Indeed and if one considers it right that some should drink from the glass while others, the majority, are forced to wait for a trickle then that theory works.

So if a modern equivalent of Newton sat under a fruiting money tree in a modern free market plutocracy such as exist in the modern world today the modern Newton story might look like this:

                             

Financial Recognition of Local Government: Constitution Alteration (Local Government) 2013 Bill

The Constitution Alteration (Local Government) 2013 Bill was introduced into the House of Representatives on 29 May 2013 and Wednesday (5 June 2013) was passed by the lower house. The Bill proposes to amend the Commonwealth Constitution s96 to make specific provision in relation to the granting of financial aid to local government bodies of which there are currently 565 many of whom struggle finically while trying to meet a growing list of funding demands .

Background

The Attorney-General in speaking to the Bill said that in August 2011 the federal government had appointed an Expert Panel on Constitutional Recognition of Local Government chaired by former Chief Justice of the Supreme Court of NSW, the Hon James Spigelman AC QC (the Expert Panel) to identify options for the constitutional recognition of local government.

In December 2011 a majority of the Expert Panel members concluded that financial recognition of local government by amendment of the Commonwealth Constitution s 96 was a viable option within the 2013 election timeframe and led to the Commonwealth Parliament establishing a Joint Select Committee on Constitutional Recognition of Local Government to inquire into and report on the majority finding of the Expert Panel in November 2012. It subsequently supported the findings of the Expert Panel that a referendum on financial recognition of local government be held at the 2013 federal election.

Whistle Blowers get a Harsh Deal

In an article in SMH (5 June 2013) it is reported that informing a regulator like Australian Securities and Investments Commission (ASIC) of corruption may not be as easy as it might at first seems: "[i]f you've come across something rotten in the organisation you work for and are thinking of blowing the whistle to the corporate regulator, think twice".

The SMH report deals with a group of "whistle blowers" at the Commonwealth Bank who contacted ASIC in October 2008 with detailed information outlining "serious flaws" in the bank's financial planning unit. But, as reported, instead of ASIC moving quickly on the serious tip-off that one of the bank's top financial planners had engaged in systemic misconduct and his files were being "cleaned up", it took ASIC 16 months to take action and even more concerning is the lack of protection offered to the whistleblowers in the case.

One of the "whistle blowers" quoted said ''We dealt ASIC the cards to take 10 tricks but they settled for six . . . My whistleblower protection consisted of advising me to 'get out with what you have left'."

Although there have been Bills for proposed laws in four states (QLD, VIC, NSW and NT) as well as the CTH aiming to protect whistleblowers are in progress in those jurisdictions none have as yet been enacted  into law and all continue to use the terminology  "whistle blower" with all the pejorative connotations that Australian society connects to the term. Reading stories like this one  it is difficult not to wonder whether if citizens who take it upon themselves to do the right thing were not referred to as "whistle blowers" words which seems to evoke the view that such a person is a "tattle-tale" or "lag" instead of being someone who did the right thing, it might not go better for the said "whistle blowers". Is it our less than splendid origins as a penal settlement that seem to favour a less sympathetic disposition to people who take the often lonely path of revealing corruption, prejudice or deficient administration or even criminal activity by blowing the whistle on it?

Whistle blowing is right not wrong? To be encouraged and supported by government, policy and integrity commissions and regulators? More so than ASIC appears to have done in this case.

Source: Blow the whistle, face the music (SMH)

New Start Bill referred to Senate Committee for Inquiry and Report

The Senate has referred the Social Seurity Amendment (Supporting More Australians into Work) Bill 2013 (the Bill) to a Senate Committee for inquiry and report. The referral has been very much supported by the Greens who have been critical of the legislation. Senator Rachel Siewert (Australian Greens spokesperson on families) saying:

"This Bill allows people on very low payments like Newstart to earn a miserly additional $19 per week before their income support begins to be affected."

Nature of the Inquiry

The Bill has been referred to the Senate Education, Employment and the Workplace Relations Legislation Committee for inquiry and report by 17 June 2013. Key measures in the Bill include:

(i) Proposed increase to the income free area applying to recipients of benefits like Newstart Allowance, Widow Allowance, Partner Allowance, Parenting Payment (Partnered) and Sickness Allowance. The increase in the income free area would increase benefits from $62 to $100 per fortnight starting from 20 March 2014 and would be subject to an annual indexation.

(ii) Proposed extension to the eligibility criteria for the Pensioner Education Supplement to single principal carer parents receiving Newstart Allowance Payments from 1 January 2014. 

(iii) Proposes provision of a 12 week extension of eligibility for the Pensioner Concession Card to single parents who are no longer qualified for Parenting Payment (Single) because their youngest child has turned eight years of age, and who do not qualify for another income support payment due to earnings - commencing on 1 January 2014.

Green's Reasoning for Inquiry

The view of Senator Siewert and the Greens is that the short Inquiry would allow the Bill to be dealt with before the end of the current Parliament in June 2013, while at the same time providing the community with the formal opportunity to respond to the measures.

Key criticisms from the Greens include:

The amount of extra casual work proposed: "That's one hour of work extra per week at the casual minimum wage. The Bill does nothing to actually help people into work or to overcome the financial pressures they are facing."

The increase in the income free area: "Such a meagre increase of the income free area - from $62 to $100 per fortnight - falls short of the $50 per week increase to Newstart that has been widely called for. The fact is people on Newstart need an increase to Newstart and an improvement in the income free area."

The timing of changes: "To compound matters, the increase does not start until March 2014, so will offer no relief whatsoever until well after the election".

Indeed the Newstart benefit in particular is agreed by most social welfare advocates to be well below where it should be to provide fair and reasonable treatment for those on it and well below a sustainable living standard even a subsistence level. For his the Greens should get credit for trying to get more. However, it perhaps should also be noted that this is the first federal government in 20 years who has moved to increase such benefits, albeit perhaps not enough?

For those interested making submissions to the Committee have been requested by 11 June 2013 and the reporting date for the Committee is 17 June 2013. Click here to see more information.

Sources:

• Parliament of Australia Web Page
• Senator Rachel Siewert, Australian Greens spokesperson on families Media Release date 3 June 2013 (Chris.Redman@aph.gov.au)

Ashby Gate: Abbott says no need for " witch-hunt"!

Opposition Leader Tony Abbott says there is no need for an inquiry into the collapsed case against former speaker Peter Slipper where the judge found outrageous behavior by many who had more than a passing connection with the LNP. Abbott claims such an inquiry "would only end up as a "witch-hunt"" and he might know having conducted a few in the last year or so? One is tempted to ask if the concern arises only because of the like subject(s) of the inquiry.

Abbott was speaking for the first time since a Federal Court judge Rares ruled that the sexual harassment case, brought against Mr Slipper by staffer James Ashby, was an abuse of process designed to cause "significant public, reputational and political damage".

It was interesting to note that many LNP ministers and members previously present and opinionated on the matter were today absent or if available not answering the real questions. No brandishing legalities from Senator Brandi's, no needling from there redoubtable Pyne - just that kind of feeling that if they just shut up it will be gone after Christmas.

Given that Justice Rares has made clear he Machievalian nature of this conspiracy saying he believed the case "was designed to further the political interests of the Liberal National Party (LNP) and Mal Brough, who has been preselected as the Coalition's candidate in Mr Slipper's Sunshine Coast electorate of Fisher". ... there is need for an inquiry, a proper inquiry and one not run, created and decide by the LNP and it's friendly press.

Judgement in Slipper Case Sees Ashby Claims held to be "Abuse of Process"

Yesterday (12 December 2012) Justice Rares of the Federal Court of Australia handed down his judgement in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411. The judgement has thrown out Ashby's sexual harassment claims in an emphatic judgement which among other things found: “that these proceedings are an abuse of the process of the Court. "

Justice Rares found that the "originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper". The judge then questioned various claims saying they "contained the scandalous and irrelevant 2003 allegations and assertion about intended reporting of the Cabcharge allegations to the police."

Finally, Justice Rares concluded that to "allow these proceedings to remain in the Court would bring the administration of justice into disrepute among right-thinking people and would be manifestly unfair to Mr Slipper."

The key facts

The case was an application by Peter Slipper MP and former Speaker to have the proceedings brought against him by Ashby dismissed or stayed as an abuse of the process of the Court.

The key contention was that an abuse had arisen because the Court's process was employed for an “ulterior or improper purpose, or in an improper way, or in a way that would bring the administration of justice into disrepute among right thinking people”.

It was further alleged by Slipper that Ashby had an “improper, predominant purpose for commencing and pursuing … proceedings that he commenced on 20 April 2012 by filing his originating application”.

Ashby accepted a position as an adviser on Slipper's official staff shortly after Slipper became Speaker of the House of Reps in controversial circumstance in 2011, Slippper also resigning his position as a member of the opposition Liberal National Party and sitting as an independent. As a result of this Slipper was then facing a possible challenge for pre-selection for his seat by Mal Brough a former Howard Government minister.

Ashby made serious allegations against Slipper as follows:

- that he had sexually harassed Ashby in the course of his employment verbally, in text messages, and on one occasion, by stroking his arm in his office;

- that in 2003 Slipper had relationship of a sexual nature with a younger male member of his staff and an encounter between them had been recorded on a video. A viewer of the video had concluded that the relationship depicted was consensual; and

- that Ashby had been forced on three occasions in late January to mid February 2012 to watch Mr Slipper sign multiple Cabcharge vouchers during his employment and hand them to the driver of a vehicle in which they both travelled and that Ashby intended to report these matters to the AFP.

In response Slipper alleged Ashby had “commenced and prosecuted the proceedings in a manner that was seriously and unfairly burdensome, prejudicial and damaging” to him.
Slipper further alleged that Ashby brought and continued the proceedings in combination with one or more co-workers on his staff and Mr Brough and a News Ltd journalist, a media consultant (Anthony McClellan), his solicitor (Michael Harmer and Harmers Workplace Lawyers), for an improper predominant purpose. Finally, Slipper alleged that Ashby had brought and continued the proceedings, for the predominant purpose of forming a political attack on Slipper to aid the Liberal National Party and or Mr Brough so that Ashby and Doane would be able to find new employment with the help of the LNP.

Justice Rares Conclusions

All Quotes below are from the summary of case.

Justice Rares concluded that Ashby's primary consideration in launching proceedings was political and not for redress of a wrong and as such an abuse of process.
To quote “I have reached the firm conclusion that Mr Ashby's predominant purpose for bringing these proceedings was to pursue a political attack against Mr Slipper and not to vindicate any legal claim he may have for which the right to bring proceedings exists."

“I am satisfied that these proceedings are an abuse of the process of the Court.”

“Sexual harassment of anyone, including an employee such as Mr Ashby, is a violation of the person's human dignity and rights. The Court must always be available for the hearing and determination of bona fide proceedings to vindicate and protect those rights. But for the reasons I have given, Mr Ashby's pre-dominant purpose in bringing the proceedings was not a proper one.”

On Slipper's argument of a wider conspiracy which would have included a News Ltd journalist and Ashby’s legal team, Justice Rares did not find such a wide conspiracy existed. He did find collusion at the level of Ashby, Doane and Brough.

“Even though I have not found that the combination was as wide as Mr Slipper alleged in his points of claim, the evidence established that Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. "

Justice Rares concluded: "Accordingly, I am satisfied that the exceptional situation that enlivens the Court's power to dismiss proceedings as an abuse has been proved to the heavy standard required. The duty and power of the Court to protect its own processes require that I give effect to the findings I have made by dismissing the proceedings with costs.”

Comment

This decision is on the one hand a victory for law over lynch mobs. On the other proof that even with a less interested in fact media the truth and justice find a way into the public domain. Serious questions now arise to be answered by he likes of Mal Brough, the people who mentored this in the Liberal National Party who mentored the claims and most of all the leader of the opposition in terms of what he knew of the collusion and what he will do with respect to Mal Brough now an endorsed Liberal candidate.

National Disability Insurance Scheme Introduced to Parliament

The much awaited National Disability Insurance Scheme Bill 2012 the legislation which establishes the framework for the National Disability Insurance Scheme and the National Disability Insurance Scheme Launch Transition Agency was introduced into the Federal Parliament on the last sitting day of the year (Thursday 29 November 2012).

The main effect of the legislation is that it will enable the NDIS scheme to be launched and the Agency to operate that launch in five sites across Australia from July 2013.

The press has quoted the Prime Minister as saying that the legislation is “a once in a generation opportunity” to change the treatment of less able citizens in Australia. The scheme is expected to cost about $15 billion a year when it is fully implemented in either 2018 or 2019, an amount that has been criticised by the opposition and those against the scheme as being beyond the capacity of the Australian economy to fund.

The legislation sets out the process for a person becoming a participant in the scheme. It also details how participants can develop a personal, goal-based plan with the Agency and how reasonable and necessary supports will be assured to participants. People in the scheme will be able to decide for themselves how to manage their care and support and choose how they want to manage their supports.
Additionally participants will be able to access assistance from local coordinators should they require help.

The legislation also provides that the Agency will be responsible for the provision of support to people with disability, their families and carers. This could include providing funding to individuals and organisations to help people with disability participate more fully in economic and social life. An independent review of the new Act commencing after two years of operation will be legislated through this Bill.

The first stage of the National Disability Insurance Scheme will on the governments estimates cost the Commonwealth $1 billion over four years from 2012-13.

While this is only a first stage it is pleasing to see action and efforts beyond rhetoric to finally deliver a national scheme.

Corporations Legislation Amendment (Derivative Transactions) Bill 2012 close to passing

Yet another piece of corporate regulation is ready to see the light of day as the Corporations Legislation Amendment (Derivative Transactions) Bill 2012 has passed through all its parliamentary stages and is awaiting assent.

The legislation will enact measures that implement commitments made by the Australian Government and other G20 nations regarding the regulation of what are known as over-the-counter derivatives ('OTC?') for which there is a very substantial global market. for example at the end-2011 the Bank for International Settlements reported that total notional amount outstanding for OTC derivatives worldwide was $648 trillion. The global financial crisis highlighted structural deficiencies in the OTC derivatives market and the systemic risks that those deficiencies can pose for wider financial markets and the real economy.

In many countries, these structural deficiencies contributed to the build-up of large, insufficiently risk-managed, counterparty exposures between some market participants in advance of the global financial crisis; and a lack of transparency about those exposures for market participants and regulators. At the 2009 G20 summit, the Australian Government joined other nations in committing to substantial reforms to practices in the trading of the OTC derivatives market.

The three key G20 commitments the Government says this legislation addresses are the:

• reporting of OTC derivatives to trade repositories;


• clearing of standardised OTC derivatives through central counterparties; and


• execution of standardised OTC derivatives on exchanges or electronic trading platforms, where appropriate.

The effect of acting the commitments are according to the Government the:

• increased transparency in the OTC derivatives market for regulators, market participants and the public; and


• a reduction in counterparty credit risks and operational risks associated with OTC derivatives.

The Bill proposes to amend various financial laws including the

• Australian Prudential Regulation Authority Act 1998,


• Australian Securities and Investments Commission Act 2001,


• the Corporations Act 2001,


• the Mutual Assistance in Business Regulation Act 1992, and the


• Reserve Bank Act 1959


• to establish a legislative framework to implement the regulation of OTC derivatives reforms.

Once the Bill is assented it is intended to take effect on the 28th day after the Act receives Royal Assent. It should however be noted that while the amendments commence 28 days after assent, ASIC’s derivative transaction rule making power will not be enlivened unless and until the has Minister prescribes a derivative class in respect of one or more of the trade reporting, clearing or execution mandates.

In the second reading speech the minister also indicates that while trade repository licensing applications may be lodged from the date of commencement, subject to prescription or approval of the relevant form, ASIC would be unable to satisfy itself of the criteria for granting a licence until derivative trade repository rules setting out the operational requirements of a licensee are finalised. Prohibitions on the other hand will apply from the date of commencement on a person holding themselves out to be a licensed or prescribed facility for the purpose of any of the three mandates, when they are not a licensed or prescribed facility. Prohibitions on operating an unlicensed trade repository will only come into effect once regulations are made providing that specified classes of trade repository must be licensed.

Uniform Anti-discrimination is not a Free Speech Issue

At last some attempt at the Federal level is to be made to create effective and cohesive anti-discrimination laws. Much discussed in the last two years, the Attorney General has this week released draft legislation consolidating the five separate pieces of Federal anti-discrimination legislation into a single Act to be called Human Rights and Anti-Discrimination Act.

Although the law is yet to be introduced into Parliament, consultation closed earlier this year and the draft bill will cover issues and problems like:

1. Defining the levels of protections to the highest current standard, to resolve gaps and inconsistencies without diminishing protections.


2. Clearer and more efficient laws provide greater flexibility in their operation, with no substantial change in practical outcome.


3. Enhancing protections where the benefits outweigh any regulatory impact.


4. Voluntary measures that business can take to assist their understanding of obligations and reduce occurrences of discrimination.


5. A streamlined complaints process, to make it more efficient to resolve disputes that do arise.

This new legislation is aimed at a unified response to discrimination across Australia.

Already debate from some of the more predictable quarters has attacked the proposed law as an example of the Labor government attacking free speech. These glib critics refer to the Bolt Case and continue to argue that someone who attacks a persons race in forums where the people he attacks have no equal chance to respond or reply is exercising free speech. And they might be right if you equate "unfettered speech" and "free speech" but they are not the same. Free speech is a democratic right that comes with the responsibility not to have it abused unlike unfettered speech which has no rules and creates a jungle of abuse and innuendo without redress or defense.

Guilt by Association Can Get You Sued: Google and Defamation

An Australian jury has found Google liable for damages following on a successful defamation action by a Melbourne man who argued that he had been defamed by the Search engine after it linked him wrongly to gangland crime. The man aged 62 claimed Google’s web and image search results had caused damage to his reputation such as to give rise to his action. The 62 year old  had already won a related case against Yahoo.

The facts giving rise to the case occurred in 2004, when the man was shot in the back by a man wearing a balaclava (a crime which was never solved). As a result of the attack a Google search for the man brings up images of other people who appeared in news reports and the man claims the pictures show murderers and a drug trafficker which could lead users to believe he was a criminal and could injure his reputation.

As a result of the suit Google was forced to cough up more than $200,000 in damages.

This case is certainly an interesting development and could open many other plausible assaults on the Google and other search engine providers, especially in these days when the first place people seek information about you is in a search engine like Google, Yahoo, Seek or even social media sites like Facebook and Linked Inn.

It becomes interesting to consider at what point in the context of the internet is the individual responsible for his fate and at what point does the Internet Service, Search Engine or Service become liable.

There is No Such Thing as a Private Remark

"What these continual eruptions are doing is they are putting people on notice that there is no such thing as a private remark anymore."

The above is a quote from a comment by Media Expert Jane Caro on the backlash that has recently been heaped on shock jock Alan Jones when he went too far even for him and the residents of Sydney or "Jones Town" reacted mostly through social media to let him know that his trashing of the female Prime Minister had gone to far.

The point is that people who make a public living out of public speaking need to realize that no matter how small the audience no matter how partisan the crowd it is no longer as easy or possible to brush off or play down what is or might have been said. Now by way of a smart phone all present at such speaking events have access to a camera and a recording device and the means to upload and make such supposedly "private comments" making them matters of publicly recorded fact in minutes,

In other words the days when the shock jock or the politician was the only one with access to the ability to publish are long gone. As Mitt Romney the US Republican Candidate recently discovered you may think you are talking to a room where you think none of the 47% you consider don't care for your views are not listening but you can be very certain they will hear about it these days.

People often talk about greater accountability for social media but in my view social media in a way is promoting greater accountability, It is requiring people in the public eye to exercise greater caution not through fear of inane industry regulation but through fear of public opinion and social retribution through posts to Twitter, Facebook and more and more places evolving on the web. It will be interesting to see how these trends develop.

The Smoke of War

"Blue is the Smoke of War,
White the Bones of Man”

…a haiku by Japanese 3rd century poet Pu Ui captures in a few words the desolation and the stench of war in few words and large images. It proves that throughout history there has never be a grand our purposeful battle, a war that could be viewed with favour.

Likewise Herotdous the Greek historian captured the cost of war when he writes …

"Peace is when sons bury fathers; War is when fathers bury sons..”

These are words of relevance these few days after five more Australian soldiers have been killed in Afghanistan. Again this conflict that was intended to be a quickly carried out mission to capture Bin Ladin has now drawn out 10 years and gone far past it's original purpose. A purpose completed last year in Pakistan (a completely different country) last year by US soldiers not involved in Afgahnistan. It seems fair to ask wh is his conflict continuing? Are we like the Russians before us deluding ourselves thinking Afgahnistan is a place that can be westernized and tamed into a Western style democracy. Will Australia linger with the Americans so long in Afgahnistan that it will see the same result for its efforts as was sen in Vietnam - a loss of face and embarrassing withdrawal having to admit defeat.

Time to end it!
This long and protracted war was never intended to continue for the ten long years. To some it may seem like some form of back down to say its time to leave but for many who recall prior and like encounters, for example: Korea and Vietnam it is exactly the kind of stubbornness that persists to the bitter end that cost even more in needless waste of life and loss of belief in democracy,

When the Tide Turns

There is a story about the English King who stood at the edge of the ocean and spoke to the rising tide ordering it to go back from where it came. This was done by the wise king because he wanted to show his subjects that some things are even beyond the power of kings to turn back,

Yet it seems the leadership of our nation believe that it is not only plausible to regulate the tide of humanity seeking lives better than those they escaped in their own lands. They believe that being less than humane and imprisoning people in detention centers will stem the tide of refugees. The reality is that it will not. Many will simply take the view that being in a detention centre simply puts them one step closer to their desired place of refuge and they will continue to come any way. They know that as it did before under the Howard Government detention on Nauru will simply result in the eventual granting of entry to Australia.

Onshore processing and quick open treatment of asylum seekers is the right and decent way to handle asylum seekers. It's what we agreed to under our international treaty obligations and we as our nation should honor our agreements.

One way all men are Created Equal

Hearing and seeing the events that transpired in Federal Parliament the other day as the Member for Dobell stood up to speak for his political existence it was interesting to be a fly on the wall watching from a comfy spot in front of a television. It was worrying to realise during the speech how flimsy and lightly held the key principles on which our free society is based are are and how poorly defended they are by those charged with the responsibility of rising above their own base ambitions for power and success.

Regardless of how much or how little you may agree or disagree with Mr Thomson's defence, allegations or reason given in his explanation, one basic point was made and made quite validly, in the opinion of this writer and that is, the point that neither Parliament or the Media are the place for anyone to be tried, convicted and indeed found guilty. 


As the quote from Harper Lee's book To Kill a Mockingbird used by Mr Thomson states ". . . there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. […] Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal". 


In the case of Mr Thomson there has been:

Book Cover To Kill a Mockingbird

• no court involved, 
• no testing of evidence to any acceptable legal standard, 
• no judgement before an untainted open minded jury of reasonable men. 

There has only been a Fair Work report which has been criticised by all  for the time it took to produce, its quality and the many ways it leaves more questions open then it resolves. There have been no charges laid by any police authority and no charges based on any civil law or legislation. What has in fact come to pass is an almost unanimous taint of guilt liberally smeared by an opposition's belief  that its their best chance of bringing down a minority government;  a view supported by an equally self interested media wanting an early election because it's good for business.


From this has flowed an almost constant leaking of information to all corners of the media, information that is as yet unproven, unauthenticated information, documents and allegations by interested parties to a point where a fair defence for Mr Thomson in a proper legal sense has been rendered almost impossible. 


From this comes my view that basic rights like "habeas corpus", "the presumption of innocence" "equality before the law"  are from the situation of Mr Thomson shown to be  fragile and poorly defended as key concepts on which or legal system and free society are based. Like the treatment dealt out to certain Australians like those held as terror suspects by the US it seems that - how much our legal system is allowed to work for you - is more to do with the political ends of certain political parties and the media who support them than the notion that such concepts are not negotiable if democracy is to function properly. To quote Harper Lee again - "I'm no idealist to believe firmly in the integrity of our courts and in the jury system – that is no ideal to me, it is a living, working reality."

Why Mining Magnates Should not have Political Power

Black Orchids

An Australian Associated Press (AAP) report of 18 May 2012 reports that botanists say that a flora survey of the Bimblebox nature reserve near Alpha in Queensland is worthy of preservation. That is contrary to the view of mining magnate Clive Palmer who wants to develop the area for mining. In Mr Palmer's view the "former grazing property that's been degraded by cattle over 40 years [is] not worth preserving".

Bimblebox Tree

Mr Palmer, AAP reports, plans to develop his multi-billion dollar China First coal mine on the nature refuge, near Alpha in central Queensland. The National Parks Association of Queensland on the other hand says it has completed a flora survey of the refuge and that the opposite is true. The association, a non-government organisation that promotes the preservation and expansion of national parks, says the survey found more than 220 different types of plants in two days.

Bimblebox Forrest

It will be interesting to see if this will be another case of mining winning over conservation, of non-science over science. No doubt Mr Palmer will be calling to mind his large contributions and support he has already made to the ruling Government of Queensland?

"Premier State" or "State of Fear"

Once upon a time NSW use to be called the "Premier State" but if Channel Seven Sydney's "Today Tonight" is to believed it should be restyled the "State of Fear".

My goodness their main story tonight (30/4/2012) was that there are green fluorescent germ things lingering on every train door handle, train seat etc.

A germ fest waiting to kill you - or - more likely is it just more rabid paranoia being promoted by News Ltd favorite TV network?

Why has keeping people informed become an excuse for keeping us all in a constant "State of fear". It is almost like the people programing for these television stations have taken their strategy from the novel 1984.