Peter A Clarke

The Victorian Law Reform Commission is currently considering submissions into its discussion paper on surveillance in public places.  The Federal Government has the ALRC report on Privacy.  How far both will go in forcing change is in the lap of the Gods.  I am not hugely optimistic.  New rights are not something governments tend to prefer, particularly in the face of media opposition.  And both reports prefer a statutory right of privacy.  The need is there.  If the Governments fluff around the common law will have to develop further than the principles in Giller v Procopets.  It is an issue that is High Court bound sooner or later (unless Governments do the sensible but unexpected). 

But the need is there.  Today’s Age piece The eye in the sky is a pretty good anlaysis of the issues.  It does make the point that while Melbourne/Australia has been less enthusiastic about CCTV than the insanity that exists in London the mood may be changing.  When our Lord Mayor does everything but actually instal new CCTVs you know the mood is on for a law and order push with CCTV being the latest panacea.  Bettert to go the route of statutory protections and regulations than have to have the common law step in. 

On other matters Privacy finally Facebook is being brought into line on its privacy and data collection policies courtesy of the Canadian Privacy Commissioner, see Facebook to tighten user privacy protection after Canada talks.  About time. 

One of the predictable pieces a paper produces at least once in every election cycle is the lack of talent in politics and how to get the best and brightest into the field.  And If you pay peanuts… fits the bill perfectly.  The hook upon which this story is based is the latest round of preselections in the State scene. 

The article is right in demonstrating the political renewal is not a given.  Politicians hold onto their seats as long as is possible.  Phillip Ruddock wants to hold on even though there is virtually no prospect of him ever sitting on the front bench again let alone being a Minister.  He loves the buzz.  Wilson Tuckey likewise.  Bronwyn Bishop.. and the list goes on.  Same, if not worse, in the State sphere.

The issues of money, lack of privacy and the lack of status that goes with being a politician are posited as reasons why people of calibre don’t go into public life.  Maybe but it was always thus.  In times gone past the attacks on a politician were more raw and the risks greater.  You have to have an itch to get into politics.  You don’t do it for the money.  The real problem is political atrophy within the parties and across the parties.  With a dwindling membership base party hacks have an inside running.  Factions in the ALP and intensive cultivation within the conservative ranks makes it very hard for a relative newcomer to find a place in a party and make a run. 

But things change. The American system is full of crusty old operators, much like the late Edward Kenneday who almost served 5 decades in the Senate.  But every so often there is a major electoral shock and like a spring rain the fluff is washed away.  It is harder to do these days but all is not lost.

Today’s piece in the Age, Screening the same old dreary story is spot on.  Michael Coulter is spot on.  He says his faith in Australian movies broke in 2004.  My faith was shredded well before then though I have saluted the occasional diamond, such as The Boys, Chopper and some excellent TV product.  But there is so much dross.  Even the supposed brilliant movies such as Lantana are disappointing.  Bleak doesn’t even begin to describe it. 

Unfortunately Coulter’s is a story run fairly often.  But it makes no difference.  Apart from his hypothesis, that an industry that lives of government funding need not worry about returns, there is another explanation.  The industry produces for its members and they love bleak super realistic product that fills the program at Film Festivals.  It frightens me to see the mass of autuers at the Melbourne Film Festival who spend their time rhapsodising over dreary, bleak, overwrought and generally appalling product.  Conversely they sneer at anything that is even vaguely commercial or aimed at a wider market.  What they miss is that the wider public have a yen for a good story well told.  Australian movies are poorly made stories badly told.  As Coulter notes, most of these efforts lack characters with whom the audience can empathise.  And like Coulter I can spend my dosh on stories that do engage you.  Or I can get a DVD of  a classic. 

It seems nothing will change.

Today’s Sydney Morning Herald is doing the meltdown thing about a plaintiff, Liskula Gentile Cohen,  successfully forcing Google to provide identifiers of a blogger.  The ruling enables  Cohen to  identity the blogger that described her as a skank and an old hag.  Actually the blogger said:

“I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen,” the anonymous blogger wrote.

“How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.”

Very blogspeak.  Cohen is planning on suing.  In the Australian context there would be some interesting pleading challenges if one was to run a justification defence.  But the US laws are far more difficult for the plaintiff, particularly if Cohen is regarded as a public figure.  Cohen has apparently already made contact with the blogger by phone.  They know each other.

The Times on line (UK) has run a similar theme to the Australian Press reports with  Vogue model Liskula Cohen wins right to unmask offensive blogger, but it should know better.  It identified Richard Horton, the Night Jack blogger, months ago and fended off his attempt to maintain anonymity publish his details prompting a breathless analysis in June under the banner Analysis: bloggers can no longer be sure on anonymity,  The decision, by Mr Justice Eady, of The Author of a Blog v Times Newspapers Limited refusing an injunction to protect a blogger’s anonymity is hardly ground-breaking law.

There has never been a separate stand alone right to unmask/identify a blogger.

The interlocutory decision of the Manhattan Supreme Court sets no precedent.  The case involves long established principles Read the rest of this entry »

Colin Rubinstein was a pleasant enough fellow when I knew him back in my Monash days. He was an academic in the Politics Department ( I think).  A man of very strong views but, in the main,  quite logical.  His latest offerings to the Age, Terrorist television would violate our racial hatred laws,is anything but.  His views are still strongly held.  Maybe a bit too strongly.

A piece of clear thinking it is not. It is worth a close look see:

A Hezbollah-run Arabic station could soon be broadcasting in Australia.

IMAGINE for a moment that Abu Bakr Bashir ordered his Jemaah Islamiah followers to start a satellite television station, perhaps called JI-TV.

But it hasn’t.   Read the rest of this entry »

Politics is as tough a gig as they come.  At the pointiest end, parliamentary politics, it can feel like a sitting in a blast furnace while having the weights dropped on you.  And I only know that from being a research officer/speech writer many years ago.  A hard day in court can be stressful.  With a grumpy judge or a case going to hell the adrenalin output must be equivalent to our ancestors reaction when first seeing the lion/sabertooth tiger up close and personal.  But usually the stress in court is anticipated and there is a conclusion to the terror.  Not so in politics.

How Turnbull could have emerged from this trainwreck?  Let’s look at it through the eyes of a lawyer.  After all he was a barrister for a while. Read the rest of this entry »

The Law Lords are no more.  On 30 July 2009 the judicial work of the House of Lords ended.  And next Monday their Lordships find themselves as members of the United Kingdom Supreme Court.  Probably for the better though I thoroughly enjoy harmless anachronisms.  And there was something delightful in watching a Law Lord deliver his judgment as a speech from the benches of the House of Lords.  It was so informal and conversational.  It reminded me of what a wise colleague once said about the how the further up the legal tree the less the formality and stuffiness.  I think that is because the truly bright and competent don’t have the need to cloak any  insecurities in pomp, ceremony and unnecessary formality.  Some of the nonsense that some (and thankfully not many) Magistrates go on about on forms and process is enough to make a cat smile. 

Back to the House of Lords.  They went out with a bang not a whimper.  Seven judgements all in. And here they are:

The most contentious is the last in the list. 

. 

Yesterday Smith J handed down final orders in the Walker & Anor v Hamm & Ors (No 2) [2009] VSC 290.   The final outcome is, on my research, a record in Victoria (and probably in Australia) for an award for a police tort (assault by the coppers). The final awards are:

Conclusion

158 To sum up, I have come to the conclusion that aggravated damages should be awarded to Donald Walker in the sum of $200,000. He should also receive $400,000 by way of exemplary damages. Marcus Walker should be awarded aggravated damages of $75,000. The estate should be awarded aggravated damages of $100,000.

159 In relation to interest, interest on general damages should be awarded as follows:

• Donald Walker $63,000
• Marcus Walker $42,000
• Marcia Walker’s Estate $21,000

Interest should be awarded on their damages for economic loss to Donald and Marcus Walker as follows:

• Donald Walker $310,843 and $98.63 per day from 18 May 2009
• Marcus Walker $128,492 and $54 per day from 18 May 2009

160 As to costs, the defendants should be ordered to pay the plaintiffs’ costs in each proceeding on an indemnity basis.

Ron Meldrum QC acted for the plaintiffs.  I was his junior and will be at the appeal.

The Herald Sun gave the case a front page splash today with a very tough editorial. 

The defendants have indicated that this case will go on appeal.  C’est la vie.

Just to show that some with a badge and some authority just don’t get it there is an article in today’s Herald Sun Connex staff allegedly put woman in headlock at station.   

Today’s report from the Guardian Newspaper on line Murdoch papers paid £1m to gag phone-hacking  that News of the World had hacked into phones of celebrities and taped their conversations.  In a related article Trail of hacking and deceit under nose of Tory PR chief said:

Among those whose privacy apparently was illegally violated when British Telecom was conned into handing over their addresses and/or ex-directory numbers are Nigella Lawson (four times); Patsy Kensit; Jude Law and Sadie Frost; Lisa Snowdon (three times); Anne Robinson and her former partner; Carol Caplin; Lenny Henry; Vanessa Feltz; Lord Mountbatten’s grandson; and witnesses to the murder of Jill Dando, thus potentially interfering with the course of a live police inquiry.

Why the British Police didn’t tell the people whose privacy has been compromised is beyond me.  Their rights have been infringed.  It is not enough for the police to prosecute the offences.  If they know a person’s property has been trespassed upon they would notify the owner.  Simple as that.  Why the mystery of phones or computers? 

In the Australian/Victorian context there is probably a breach of the Telecommunications Act for obtaining the phone details illegally and for hacking into the phones and a breach of the state Listening Devices Act for taping the conversations. 

But none of that gives the persons whose privacy was breached any great comfort.  It is their rights that have been violated.  Under Gillers v Procopets there is a reasonable chance of being successful though it might be hard to show there there was an intention to cause distress or humiliation or whether there was humiliation.  Frankly a breach of privacy like this should be actionable per se.  That is damage should be presumed.  Hacking into private communications is like rummaging around somebodies personal effects on their property.  The difference is that physically going onto one’s property without consent or licence and rifling through one’s things is trespass and actionable per se.  But breaching the privacy of another is not.  The law needs to develop with the times. 

Under the proposed the ALRC recommendation for the statutory right of privacy the test is:

Recommendation 74–1 < ?xml:namespace prefix ="" o ns ="" "urn:schemas-microsoft-com:office:office" />

Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non- exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:

(a) there has been an interference with an individual’s home or family life;

(b) an individual has been subjected to unauthorised surveillance;

(c) an  individual’s  correspondence  or  private  written,  oral  or  electronic communication has been interfered with, misused or disclosed; or

(d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2

Federal  legislation  should  provide  that,  for  the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:

(a) there is a reasonable expectation of privacy; and

(b) the  act  or  conduct  complained  of  is  highly  offensive  to  a  reasonable person of ordinary sensibilities.

In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

If these breaches happened in Australia and there was a statutory right, I think there would be a good chance of success.  The issue would be whether there was disclosure of sensitive facts.  In defamation publication only needs to be to a third party.  Given the egregiuos nature of this breach it wouldn’t be a brave submission to say disclosure within the Murdoch would probably be enough,  If it was disclosed to the general public the argument would be unassailable. 

Interesting days indeed.  Now will the Federal Government do the right thing and enact a statutory right while batting away the shrill complaints of the Murdoch Press. 

Doug McClelland is one of the better Federal Attorney General’s of late.  He is experienced in the black arts of politics and  knows his way around the corridors of power (unlike Darryl Williams) and doesn’t see his role to be an attack dog for the government (ie he is not Ruddock lite).  Unlike his state counterparts he doesn’t bang the law and order drum until the skin breaks (Hatzistigos in NSW) or become an affirmative action zealot (Hulls) though he seems to be gently nods in that general direction.  All in all he is working quietly and smoothly through his portfolio pushing through reforms to the courts and procedures.  How well they work out is a matter for time to tell. 

So it is all the more disappointing to read about the Lexicon of Terrorism project in today’s email. 

Attorney-General, Robert McClelland, today welcomed the national roll-out of a project to

promote the consistent use of language in engaging with communities on national security

issues.

While we are working on lexicon:

•  “roll – out” means spending a lot of government money ; Read the rest of this entry »