Extortion

The Illawarra Mercury reports another instance of extortion via Grindr.

Jayson Hastie, 25, has been ordered in Wollongong Local Court Magistrate to serve 20 months' in corrections , with a non-parole period of nine months. He had reportedly attracted the attention of an older man using a Grindr profile under the name of 'Alex', with an initial two weeks of messages and phone calls. He failed to attend a planned meet-up in March, a frequent occurrence with relationship SNS. At a subsequent meeting the man was greeted by one of Hastie’s friends. Hastie arrived a short time later, climbed into the backseat of the man's vehicle and introduced himself as 'Alex', claiming that he was an undercover police officer and told the man, "you have been pinged".

It is unclear what being "pinged" means but we might infer that Hastie had initially purported to be a minor. The Mercury reports that Hastie said a disc he was holding was a tracker that would bring other officers to their location, before stating "you don’t have to say anything, but whatever you do say can be used as evidence in court". Impersonation of a police officer is a specific offence under statute law in all jurisdictions.

The "terrified" victim told NSW police representatives that he agreed to Hastie’s demand for $2,000 (promptly withdrawing cash) and also agreed to provide continued financial "help" on a weekly basis. Hastie reportedly stated "If you don’t, all the transcripts [and] photos will be going to police,". Along with the friend Hastie searched the victim’s car before saying "if you ever do this again, I’ll find you and break your legs" and leaving.

 Hastie has pleaded guilty to charges of demanding money with menace and impersonating a police officer, in exchange for prosecutors dropping a more serious charge of kidnapping. In impersonating a police officer, Hastie had contributed to an "undermining of the confidence the community might have in police officers".

There have been several instances of extortion involving gay social media, at least one involving the death of a victim of extortion.

In DKN v the State of Western Australia [2018] WASCA 87 the appellant and Mr N used Grindr to arrange a meeting with the victim, purportedly for consensual intimate activity.

With the appellant's consent, Mr N sent the victim a photograph of the appellant. 

The appellant, Mr N and two other male alleged co-offenders, agreed that they would meet the victim with the common plan to beat him up. This assault was the subject of count 8. The victim arrived at the meeting location and the appellant stood waiting for him in front of some bushes in which the other three men hid. The victim approached and, recognising the appellant from the photograph, greeted the appellant. The three other men emerged from the bushes, approaching the victim. Mr N said something to the victim. 

One of the alleged co-offenders then walked away. 

The other walked behind the victim and struck him to the back of the head.The victim attempted to run away. Mr N tripped the victim, causing him to fall to the ground. 

Mr N and one of the alleged co-offenders began to punch, kick and stomp on the victim's head, body and face. The appellant then punched the victim once in the face. The victim tried to protect himself by curling into the foetal position on the ground. 

The appellant took the victim's wallet, removed his licence and gave it to Mr N. While recording the assault on his mobile phone, Mr N read the victim's name from his licence, demanding that the victim never do this again. The appellant then took $40 from the wallet. This act was the subject of count 10. One of the alleged co-offenders took the victim's house and car keys. The offenders then ran off. 

The appellant and Mr N returned to the victim with the intention of taking his mobile phone. The victim handed it over after Mr N told him that if he did not he would kill him. The appellant and Mr N then ran away, stopping 100 metres from the victim. The appellant removed the phone's SIM card and handed the phone to Mr N. Mr N then stomped on the phone, smashing it, before placing it down a drain in the road. The destruction of the phone was the subject of count 12. 

The victim suffered bleeding to the brain and was hospitalised. He sustained bruising to his face, back and arms and abrasions to his face, legs and arms. The victim's injuries were medically reported to be of such a nature as to endanger or be likely to endanger his life.

In R v KB [2017] ACTSC 344 the Court notes

 In early January 2017, the offender's younger brother (then 16 years old) created a profile on “ Grindr ”, a social networking app used by gay men to arrange romantic and/or sexual liaisons. The offender's brother stated that he was 18 years old or older, as the app required users to be adults. 

On 7 January 2017, the offender's brother “met” the victim through the profile. They “befriended” each other on Facebook. The offender's brother said that he wanted to meet the victim in person and they arranged to meet at the playing fields at Mawson. 

The offender drove his brother to the agreed meeting place. The offender exited the car, approached the front driver's side of the victim's car and said “Hi, I'm the paedophile hunter... you have come here to see my little brother, he is only 15.” The offender threatened to publicly release details of the Grindr exchanges between the victim and the offender's brother, which included images.

As this conversation was occurring, the offender's brother left the offender’s car and approached the offender and the victim, holding a mobile telephone. He recorded the conversation between the offender and the victim. 

The offender said to the victim, “we can sort this out; you don't have to ruin your life.” He continued to threaten to publish on social media the conversations and images that had been exchanged. He said that he would have the victim arrested and would ruin his life. 

After protesting that he had done nothing wrong, the victim attempted to enter his vehicle to leave. The offender leaned against the front driver side door and prevented the victim from doing so. However, the victim managed to force open the front driver door and enter the vehicle. As the victim drove off, the offender and his brother called out “we are going to ruin your life”. 

When he was exiting the car park, the victim stopped his vehicle. The offender and his brother approached. The victim used his mobile telephone to photograph them. The offenders repeated that, “we can sort it out; you don't have to ruin your life.” When the victim asked what they wanted, the offenders indicated that they wanted money. The victim drove away. 

The victim continued to receive messages from the Grindr account in the name of the offender's brother. One of the messages said, “[w]ould you ruin your life just for $150, is it worth it?” .... In February 2017, police executed search warrants at the residence of the offender and his brother. Police searched the offender’s vehicle, where they located a printed piece of paper containing explicit Facebook message exchanges between the Facebook account operated in the name of the offender's brother an unidentified male.

The Canberra Times in reporting on other instances of blackmail by KB's associates commented

A teenager used as "bait" to lure a man who died by suicide hours after he was blackmailed by a group of males who targeted men on a gay hook-up app and threatened to out them as paedophiles will spend four months in detention.

The boy, now 17, was the fifth person to plead guilty after police this year cracked a syndicate for vowing to publicly "out" men, who they trapped through apps including Grindr, as child molesters if they didn't hand over mobile phones or cash.

He had been driven by greed when he asked the scam's teen "ringleader" to get involved, the ACT Childrens' Court was told on Monday. ...

The boy was among offenders who ensnared the man through social media and arranged a meeting at Mawson shops the night of January 20.

When the man arrived, the boys showed him a dossier compiled on him and said they would publish messages and expose him as a paedophile before they fled with his mobile phone and $400.

Not satisfied with that haul, he was among several boys who later showed up at the man's house to put further pressure on him before they were scared away by his brother.

The victim was found dead the next afternoon.

Police arrested the offender after they found the victim's phone in the boy's bedroom in April this year. He admitted to blackmail and unlawful possession of stolen property.

In August SBS reported Timothy Ruge, 34, pleaded guilty in Melbourne Magistrates Court to making an unwarranted demand for money with menace, having demanded $1300 from a Grindr user in return for not telling the victim's girlfriend.

Ruge - who presumably knew the victim - allegedly responded to contact by sending an image of the victim's fiancee, commenting: "She's pretty, you cheating bastard". The victim apologised; Ruge demanded "Cardless cash me $500 now, then $500 in 30 mins Are We Clear", followed by "And I vanish". The victim said he didn't have the money, explaining "she handles all my money", with Ruge apparently responding "tick tock I'll ask her for it then shall I. Tick tock".

The men then arranged to meet at Southern Cross Station, with the victim handing over $200 - apparently captured on CCTV - and Ruge deleting the messages, only to ask for a further $300 in a message six minutes later, with the victim then reporting to the police.

Ruge is elsewhere reported to have characterised the matter as an “unfortunate circumstance”.

In Landon v R [2018] NZCA 264 the NZ Court of Appeal notes

The complainant had been deceived into believing he would be meeting a young man he had been exchanging text messages with. When the complainant went to open the gate, however, he was ambushed by M1 (who was armed with a shotgun), M2 (who was carrying a baton) and Ms Landon. The complainant was then taken back to his apartment and subjected to degrading and homophobic abuse over an extended period, and threatened with serious violence. As the offenders departed, they stole multiple items of property, including the complainant’s car.

Reform of the Victorian Residential Tenancy Regime

My recent 'Unquiet Enjoyment? Privacy and Imaging of Residential Property' in (2018) 15(8) Privacy Law Bulletin 130 explored still/video imaging making and dissemination regarding rented residential property and other residential property, for example people taking snaps during an 'open house' for display on their blog or publication via social media.

That article drew on a submission to the Victorian Law Law Reform Commission several years ago, reflected in the Commission's 2015 Photographing and Filming Tenants’ Possessions for Advertising Purposes report noted here.

It is thus interesting to see that the state parliament has passed amendments to the Residential Tenancies Act 1997 (Vic), strengthening occupier rights.

The amendments include provision for establishment of a Commissioner for Residential Tenancies, to be appointed to "champion the rights of Victorian tenants in the private sector". The Commissioner will "consult widely with tenant and consumer advocacy groups across the rental sector to identify systemic issues and will give tenants a voice in seeking changes to renting laws".

Tenancy blacklists remain contentious. The amended legislation encompasses a landlord blacklist. The Government indicates that

 Currently, tenants who breach their obligations under the RTA may find their names on a tenancy database, sometimes referred to as a ‘blacklist’. Landlords and real estate agents will now be subject to similar measures. We will create a landlord and agent ‘blacklist’ that will be available to all tenants so they can identify landlords and agents who have previously breached their obligations under the RTA.

The Government states

The Residential Tenancies Act is the main source of consumer protection for Victorians living in rental housing, while also outlining the obligations of landlords and property managers. 

Since it was introduced, there have been many changes, both in the rental market itself, and in the characteristics, needs and expectations of tenants and landlords. In the past, private rental was commonly a relatively short-term transitional arrangement, which ended in tenants moving to home ownership or in a move to social housing. 

This is no longer the case, with growing numbers of Australians in rental housing, and around one-third of private tenants nationally considered to be 'long-term', having rented continuously for over 10 years. An increasing number of long-term tenants are either older people on fixed incomes, or families with children, for whom stability is important. 

The reasons why people become and remain landlords have also changed significantly, with rental property becoming an important investment and a key feature of many people’s retirement plans. ... 

The review represented a once-in-a-generation opportunity to revisit the regulatory settings that have been in place since 1997, and to ensure they meet the needs of participants in today’s rental housing market.

Public consultation was a significant feature of the review, commencing with the release in June 2015 of the consultation paper Laying the Groundwork, followed by a series of six public consultation papers covering a broad spectrum of rental issues – from security of tenure to protections for people living in caravan parks and residential parks. xxx In January 2017, Heading for Home, an options paper outlining the outcomes of public consultation, was released for final discussion. 

During the review, more than 4,800 public comments were submitted by a range of people and organisations. 

... Drawing on stakeholder submissions, broader consultation across government, as well as the results of independent market research, a package of more than 130 reforms to the Residential Tenancies Act was developed. 

The reforms are framed around the reality that a growing proportion of Victorians are priced out of home ownership and likely to rent for longer periods of time. There is, consequently, a need to rebalance the market through additional protections for a highly diverse population of renters.

It goes on

A number of the reforms were announced as part of the Government’s ‘Rent Fair’ campaign in October 2017. These included:

• allowing animals to be kept in rented premises 

• allowing renters to make prescribed minor modifications to a rental property 

• bolstering security of tenure and ending ‘no fault’ evictions by removing the ‘no specified reason’ notice to vacate and restricting the use of ‘end of the fixed-term’ notices to vacate to the end of an initial fixed term agreement 

• establishing a non-compliance register ‘blacklisting’ residential rental providers and agents who fail to meet their obligations 

• providing for the early release of bonds with the consent of both parties to the tenancy agreement 

• restricting solicitation of rental bids by residential rental providers and agents providing for yearly, instead of six-monthly, rent increases 

• providing for faster reimbursement where renters have paid for urgent repairs 

• increasing the number of properties to which the statutory maximum cap of four weeks for bond and rent in advance applies 

• enabling automatic bond repayments, which will be available to a renter within 14 days where the parties are not in dispute over the apportionment of the bond 

• requiring mandatory pre-contractual disclosure of material facts, such as an intention to sell the rental property, or the known presences of asbestos 

• prohibiting misleading or deceptive conduct inducing a person into renting a property.

The reform package incorporates more than 130 proposed reforms, spanning all types of rental housing currently regulated by the Residential Tenancies Act: public and private residential housing, rooming houses, caravan parks and residential parks.

In keeping with a forward-looking approach, the reforms include explicit legislative purposes for the Residential Tenancies Act and up-to-date terminology befitting of a modern regulatory framework. Gone is the feudal language of landlords and tenants, to be replaced by ‘residential rental providers’ and ‘renters’.

While the principal aim of the reforms is to ensure access to fairer, safer housing for Victorian renters, the reform package also incorporates a number of changes aimed at ensuring that residential rental providers (landlords) have appropriate tools to deal with common issues they identified as arising in the course of a rental relationship.

To name a few supply-side reforms, rental providers will now have strengthened termination grounds for malicious property damage, as well as new grounds responding to serious threats and intimidation, and serious violence by visitors to managed premises. Serial late payment of rent of less than 14 days will also now entitle a rental provider to apply for compensation to recoup any arrears, whereas this was previously limited to situations where a renter had received a notice to vacate.

While some of the changes may be seen as unfair by some supply-side stakeholders, for a large number of rental providers they reflect current practice. In this respect, the changes to the legislation are not without precedent and are, in fact, supported by a number of suppliers of rental housing. The reform package aims to bring the rest of the market up to a consistent standard.

For example, the review found that the vast majority of rental providers already only increase the rent once every 12 or 24 months. For this reason, the move to annualised rents does not actually represent a major change.

Similarly, ‘no reason’ notices to vacate are also only used by one in 11 (9%) of landlords. The repeal of this notice is therefore highly unlikely to be disruptive, as landlords already rely on legitimate, recognised reasons in the legislation when terminating a rental agreement.

Pet-related changes also appear to be in line with majority views. Independent market research conducted during the review found that one in four (24%) landlords report that they ‘always’ allow pets at their rental property. A further 38% ‘sometimes’ allow pets depending on the type of pet (for a total of 62% of landlords who might allow a pet at their rental property).

Rental providers who currently try to do the right thing by renters will not be affected by the changes. However, those who cut corners or who do not prioritise compliance with their obligations will find themselves facing increased monetary penalties and other punitive action.

The reforms are the first, important step towards a more future-proofed Residential Tenancies Act. Work will continue next year to ensure that the suite of reforms in the Bill is supported by complementary, easily accessible and effective dispute resolution through the Victorian Civil and Administrative Tribunal (VCAT), encouraging the parties to assert their rights in a non-adversarial manner.

The Second Reading Speech states

A number of the reforms were foreshadowed as part of the Andrews Labor Government's 'Rent Fair' campaign in October 2017. These include:

• allowing animals to be kept in rented premises; 

• allowing renters to make prescribed minor modifications to a rental property; 

• bolstering security of tenure by ending 'no fault' evictions by removing the 'no specified reason' notice to vacate and restricting the use of 'end of the fixed term' notices to vacate to the end of an initial fixed term agreement; 

• establishing a non-compliance register 'blacklisting' residential rental providers and agents who fail to meet their obligations; 

• providing for the early release of bonds with the consent of both parties to the tenancy agreement; 

• restricting solicitation of rental bids by residential rental providers and agents; providing for yearly, instead of six-monthly, rent increases; 

• providing for faster reimbursement where tenants have paid for urgent repairs; 

• increasing the number of properties to which the statutory maximum cap of four weeks for bond and rent in advance applies; 

• enabling automatic bond repayments, which will be available to a renter within 14 days where the parties are not in dispute over the apportionment of the bond; 

• requiring mandatory pre-contractual disclosure of material facts, such as an intention to sell the rental property, or the known presences of asbestos; and 

• prohibiting misleading or deceptive conduct inducing a person into renting a property.

These protections are rounded out with other important changes aimed at improving the state of rented premises and ensuring that renters have a safe and sustainable living environment:

• mandatory condition reporting to ensure the state of rented premises is accurately recorded at the beginning and end of a rental relationship; 

• mandatory safety-related obligations, notably electrical and gas appliance servicing every two years, and compliance with smoke alarm and pool fence regulations; and 

• the power to prescribe in regulations minimum standards for residential rental properties.

Minimum standards that would be prescribed include basic, yet critical requirements which no reasonable person could object to, such as:

• a vermin proof rubbish bin; a functioning toilet; adequate hot and cold water connections in the kitchen, bathroom and laundry; 

• external windows that have functioning latches to secure against external entry; 

• a functioning cooktop, oven, sink and food preparation area; 

• a functioning single action deadlock on external entry doors; 

• functioning heating in the property's main living area; and window coverings to ensure privacy in any room the owner knows is likely to be a bedroom or main living area.

This power to prescribe minimum standards has been flexibly designed, so that it can incorporate standards imposed under other Victorian legislation, such as energy and water efficiency requirements. A failure to comply with the standards will trigger a variety of responses, including a fine, urgent repairs to the premises, or termination of the parties' agreement before a renter has even moved in.

Importantly, the Bill implements each component of recommendation 116 of the Royal Commission into Family Violence to better protect and support family violence victims living in residential rental housing. Consideration of family violence has also been interwoven with relevant provisions of the Act to avoid further victimisation of vulnerable renters while ensuring continuity of housing. 

Specialised reforms have also been included for alternate tenure types such as rooming houses, caravan parks and residential parks. The Bill allows for a new, tailored rooming house agreement to be developed for operators and residents wishing to enter into an agreement with a defined occupancy period. Parties who do not wish to enter into the new agreement will be subject to the ongoing residency right currently conferred by the Act. Use of tenancy agreements in rooming houses will only be allowed in respect of residents living in self-contained apartments that form part of the rooming house. 

Importantly, the Bill responds to ongoing concerns about the procedural rigour, and impacts, surrounding park closures. Residents affected by the closure of a park will now have access to compensation in particular circumstances, and park owners will need to comply with stricter notification and permission processes before they can proceed with closing down a park. 

While the main focus of the Bill is improving protections for vulnerable renters, and greater security of tenure, these reforms are offset, in a number of instances, by increasing clarity around renter responsibilities. Residential rental providers will now be able to terminate a tenancy if a renter or any other person occupying or jointly occupying the rented premises has seriously threatened or intimidated the residential rental provider, their agent, or a contractor or employee of either. 

Existing termination grounds have been fine-tuned to ensure they provide residential rental providers with effective tools for managing risks arising during a tenancy. For example, renters who intentionally or recklessly damage premises will no longer be able to avoid eviction on the basis of a prediction by VCAT that the conduct will not recur. 

Termination for repeated non-payment of rent will now be underpinned by a more structured process. Tenants who receive four notices to vacate for being 14 days or more in arrears in any 12-month period risk being evicted the next time they receive another notice to vacate, unless they can pay the arrears, satisfy the terms of a payment plan (where such a plan is imposed by VCAT), or demonstrate that it would not otherwise be reasonable or proportionate to end the rental relationship. This 'reasonableness and proportionality' test would also apply to other applications for a possession order to ensure that renters are not evicted for trivial or easily remediable reasons. 

Tenants will need to comply with new safety-related duties to ensure they play their part in ensuring the safety of the premises. This also includes a prohibition on tampering with any safety devices, such as smoke alarms, unless it is reasonable to do so in the circumstances. 

Rights of entry have been significantly clarified to ensure that inspections can be conducted in an orderly manner, while avoiding undue interference with renters' daily lives. For example, residential rental providers will have a clear right to conduct at least two opens for inspection per week when re-letting or selling a property. Renters would have the right to refuse further inspections, and would be compensated for any inconvenience, as well as loss of property that might occur during an inspection. 

The Bill also modernises the process for dealing with goods left behind by a renter, and empowers the Director of Consumer Affairs to issue guidelines clarifying the operation of the RTA. 

The Bill implements the Victorian Law Reform Commission's recommendations about photography of premises, allowing residential rental providers to do what is necessary to re-let or sell their premises, while balancing the need for renters to impose restrictions on the types of photographs or videos that may be taken.

Unions Royal Commission

The two volume interim report by the Royal Commission into Trade Union Governance and Corruption states that it is structured as follows -

Part 2: The legal landscape

69. Part 2 sets the legal landscape by providing an overview in respect of the duties of officers of registered organisations, the use of union resources in elections, and financial reporting obligations on registered organisations.

Part 3: Generic slush funds

70. Part 3 considers funds with variety of purposes. The most notorious fund, the Australian Workers’ Union – Workplace Reform Association, is considered in Chapter 3.2.

71. Funds of this kind pose significant governance issues. The officials who operate those funds owe statutory and general duties to the union. On the other hand, the officials deploy their energy and sometimes their employer’s resources for the benefit of the fund. This gives rise to actual or potential conflicts of interest. Often these funds have no or no adequate record keeping. Management decisions are made informally or without due process. Directors’ or shareholders’ meetings are not held. If they are held, minutes are not kept. Transactions are often effected by cash. When records are maintained, they are often maintained in a haphazard fashion.

72. The Australian Workers’ Union – Workplace Reform Association case study concerned allegations of fraudulent and other misconduct by Bruce Wilson and Ralph Blewitt, former officials of the AWU. A recommendation is made that this Interim Report be referred to the relevant prosecuting authorities in Western Australia and Victoria to consider whether Bruce Wilson and Ralph Blewitt may have committed criminal offences. Findings are made that Julia Gillard did not commit any crime and was not aware of any criminality on the part of these union officials.

73. Industry 2020 is another generic fund. It was associated with Cesar Melhem, the former State Secretary of the Victorian branch of the Australian Workers’ Union (AWU). Industry 2020 organised lucrative fundraisers by using the name, influence and resources of the AWU. The AWU or its members received no recompense or benefit from Industry 2020’s activities. The funds raised were deployed to support political causes associated with Mr Melhem, including members of the Labour Unity faction of the Australian Labor Party (to which Mr Melhem belonged) and the Asmar campaign for the HSU.

74. Other generic funds examined in Part 3 are Building Industry 2000, IR 21 and TLATA. The issues arising for consideration in relation to these funds include the fiduciary duties of union officials, conflicts of interest and corporate governance.

Part 4: Fighting funds

75. These are the most common type of relevant fund considered by the Commission so far. Commonly an election fund is maintained by a union through amounts deducted automatically from the salaries of members and paid into a designated bank account. On its face there is nothing objectionable about such a fund. A member who decides voluntarily to contribute to an election fund is free to do so.

76. However, a number of problems with such funds in practice have emerged. Often there is no or insufficient disclosure to contributors or union members as to the activities of the fund. Record keeping is commonly very limited. The voluntariness of members’ decisions to contribute to a number of funds is questionable. A fund may give rise to a lopsided election or no election at all. An incumbent may have a disproportionate benefit if he or she has significant resources which are not available to his or her opponent. Candidates for election can close their eyes to the sources, propriety and legality of funding received for their campaigns and disclaim responsibility for that funding on the basis of ignorance.

Part 5: Income protection and redundancy funds

77. Funds of this kind are significant sources of union revenue. The two funds considered in Part 5, the BERT Fund (Chapter 5.2) and the Protect scheme (Chapter 5.3), both illustrate the problems that arise when unions are too closely connected with the governance of important income protection and redundancy funds.

Part 6: Superannuation

78. The two case studies considered by the Commission in this Part vividly illustrate the difficulties which employees face in light of the current lack of choice of superannuation fund available to workers under an enterprise agreement.

79. Chapter 6.2 concerns Paul Bracegirdle’s Herculean attempts to choose his own superannuation fund, rather than having his superannuation contributions made to TWUSUPER. TWUSUPER is a fund associated with the Transport Workers’ Union (TWU): approximately $2 million has flowed from TWUSUPER to the TWU over the last two financial years.

80. Chapter 6.3 concerns Katherine Cole’s similar struggle. She was required to join the Labour Union Co-operative Retirement Fund (LUCRF), an industry superannuation fund associated with the National Union of Workers (NUW). Her attempts to get out of the fund were rebuffed. Ultimately, Katherine Cole she took the drastic step of resigning her position, rather than continuing in LUCRF.

Part 7: Training funds

81. The only fund examined in this Part of the report is TEACHO, a fund associated with the TWU. Issues arising in connection with other funds, such as METL, a fund associated with the Maritime Union of Australia, will be considered in more detail next year.

82. As with many of the other funds already mentioned, the relevant arrangements in respect of TEACHO came into existence as part of the enterprise agreement bargaining process. In part the problem with TEACHO derives from a lack of clarity as to the appropriateness or efficacy of its functions. Another problem involves the fact that Toll agreed in a side deal, negotiated at the same time as its EBA with the TWU, to make payments to TEACHO provided that the TWU in return supplied reports to Toll concerning the activities of competitors. The information required for the purposes of the reports would be obtained by the TWU in pursuit of its statutory functions as a trade union. Toll sought to keep this information suppressed at the hearings of the Commission, an application which was refused. In his evidence Damian Sloan of Toll, a very impressive witness, accepted that Toll had agreed to provisions in the EBA relating to TEACHO in order to achieve industrial peace.

Part 8: CFMEU

83. Part 8 is the largest part of the Interim Report. It contains a number of case studies associated with the CFMEU. Together they raise fundamental issues about the regulation of the building and construction industry, and the culture of wilful defiance of the law which appears to lie at the core of the CFMEU.

84. Chapter 8.2 concerns Boral Ltd. Boral is a multinational company listed on the ASX. It was the victim of a ‘black ban’ imposed by the CFMEU. The evidence of the conduct of the CFMEU and its officers towards Boral and its customers has led to findings that blackmail and contraventions of the Competition and Consumer Act may have been committed.

85. Chapter 8.3 concerns Cbus, which manages employees’ superannuation. Senior executives at Cbus, namely Ms Butera and Ms Zanatta, covertly provided contact information for Cbus members employed by the Lis-Con companies to Mr Brian Parker, the NSW State Secretary of the CFMEU. This was done at the request of Mr Parker, who wanted the information to cause employees of Lis-Con to be personally contacted to make trouble with their employer.

86. Chapter 8.4 deals with the question of whether, on 27 March 2013, Mr Darren Greenfield, a CFMEU official, made a death threat to Brian Fitzpatrick, another CFMEU official. The finding is that the conversation was as Mr Fitzpatrick described in his evidence.

87. Chapter 8.5 deals with the unsavoury views held and expressed by Mr Parker about another member of the Branch Committee of Management who had been compelled to give evidence to the Commission and who, when called, gave truthful evidence.

88. Chapter 8.6 addresses two case studies relating to the unacceptable way in which the CFMEU has dealt with its records, including those which may have been relevant to the Terms of Reference.

89. Chapter 8.7 is devoted to the Universal Cranes case study. It raises similar issues to those in respect of Boral, and thus involves issues of extortion, unlawful threats and breaches of the Competition and Consumer Act 2010 (Cth). Officials at the CFMEU in Queensland embarked on a campaign against it by banning it from sites, and threatening to continue the ban unless Universal Cranes signed the CFMEU’s form of enterprise bargaining agreement.

90. The Hindmarsh case study is dealt with briefly in Chapter 8.8. There are two reasons for brevity at this stage. The first concerns the fact that there are Federal Circuit Court proceedings due to be heard shortly which raise some of the issues raised in the Commission hearings. The second is that, in relation to the remaining discrete issues, it is desirable to afford the CFMEU and its officers a further opportunity to provide submissions which they have so far chosen not to provide.

91. Chapter 8.9 concerns the treatment of FWBC Inspectors by CFMEU officers. There was evidence of intimidating, abusive and verbally violent treatment towards FWBC inspectors by members of the CFMEU. In one case the verbal violence was captured on video. It involved a CFMEU official standing in close proximity to an FWBC inspector and screaming abuse of a particularly insulting and violent kind. Other evidence, equally insulting although not captured on video, related to the treatment of FWBC inspectors at the Barangaroo site.

92. Chapter 8.10 concerns the Pentridge Prison site and activity by the Victorian branch of the CFMEU. The activity in question included the making of abusive and threatening calls by union officials, and the application of improper pressure on subcontractors to sign the CFMEU’s form of enterprise bargaining agreement and on workers to become CFMEU members.

93. Chapter 8.11, which is extremely brief, relates to allegations made by Andrew Zaf. As those allegations remain under investigation, no findings are made at this stage.

94. The final chapter in Part 8 is Chapter 8.12. It concerns relations between the Lis-Con companies and the CFMEU in Queensland.

Part 9: HSU

95. The only issue relating to the HSU considered in this Interim Report concerns the activities of the HSU Victorian No 1 Branch (now named the Health Workers’ Union). A number of officials at this branch have alleged that their Right Entry Permit tests were undertaken by others on their behalf. This issue is considered and resolved in Chapter 9. As noted above, other issues concerning the HSU which have also been the subject of evidence before the Commission to date will be addressed in a future report.

Part 10: TWU

96. A number of funds associated with the TWU or its officials – namely the McLean Forum, the New Transport Workers’ Team, TWUSUPER and TEACHO – are dealt with in the Parts summarised above.

97. This Part also considers questions relating to the NSW Branch of the TWU’s electoral roll. For a number of years the NSW Branch of the TWU provided documents to the ALP which overstated the number of members of the NSW Branch eligible to vote in a ballot for an office in the union. The significance of this matter is that the TWU was exercising voting rights at ALP conferences based on an inflated number of members.

Part 11: SDA

98. This case study involves the then Secretary-Treasurer of the Queensland Branch of the Shop, Distributive, Allied and Employees’ Association terminating the employment of an organiser because – on the evidence, although this was not the stated reason – the organiser had decided to run against him at a forthcoming election. Confidential Report

99. There is a recommendation that one volume of this Interim Report be kept confidential. On 12 December 2014 an order was made directing that any information in the Confidential Report that might enable a person named in that report who has given evidence before the Commission to be identified not be published. That recommendation and that order were made because the confidential volume deals with threats to witnesses. It is necessary for that volume to be confidential in order to protect the physical well-being of those witnesses and their families. This is unfortunate, because the confidential volume reveals grave threats to the power and authority of the Australian state.

Recommendations for referral

100. It is recommended that this Interim Report and any other relevant materials be referred, pursuant to s 6P of the Royal Commissions Act 1902 (Cth) and every other enabling power, to the:

(a) Commonwealth Director of Public Prosecutions in order that consideration may be given to whether:

(i) the CFMEU should be charged with and prosecuted for cartel conduct contrary to ss 44ZZRF and 44ZZRG of the Competition Policy Reform (Victoria) Act 1995 (Vic) (Chapter 8.2); (ii) Darren Greenfield should be charged with and prosecuted for using a carriage service to make a threat and/or to menace, harass or cause offence contrary to ss 474.15 and 474.17 of the Criminal Code (Cth) (Chapter 8.4); and (iii) each of John Perkovic, Luke Collier, Rob Kera, Brian Parker and Michael Greenfield should be charged with and prosecuted for obstruction of a Commonwealth public official contrary to s 149.1 of the Criminal Code (Cth) (Chapter 8.9); (iv) each of Diana Asmar, David Eden, Darryn Rowe, Nick Katsis, Saso Trajcevski-Uzunov and Lee Atkinson should be charged with and prosecuted for making a false statement in an application or recklessly making a false statement contrary to ss 136 and 137 of the Criminal Code (Cth) (Chapter 9); and (v) Kimberly Kitching should be charged with and prosecuted for aiding and abetting the contraventions of each of Diana Asmar, David Eden, Darryn Rowe, Nick Katsis, Saso Trajcevski-Uzunov and Lee Atkinson (Chapter 9);

(b) Australian Securities and Investments Commission in order that consideration may be given to whether:

(i) Michael Ravbar should be charged with and prosecuted for breaches of his duty as an officer contrary to s 184 of the Corporations Act 2001 (Cth), and whether a civil penalty proceeding should be commenced and carried on against Michael Ravbar for contraventions of ss 180, 181 and 182 of the Corporations Act 2001 (Cth) (Chapter 5.2); and (ii) the exemptions granted to employee redundancy funds by ASIC Class Order CO 02/314 remain appropriate (Chapter 5.2);

(c) Fair Work Building Inspectorate in order that consideration may be given to whether proceedings should be commenced and carried on against:

(i) each of Michael Ravbar and Peter Close for coercion to the existence, exercise or refusal to exercise a workplace right contrary to s 343 of the Fair Work Act 2009 (Cth) (Chapter 8.7); (ii) each of Michael Ravbar, Peter Close and Andrew Sutherland for taking adverse action against another person as a result of the existence, exercise or refusal to exercise a workplace right contrary to s 340 of the Fair Work Act 2009 (Cth) (Chapter 8.7); (iii) each of Anton Sucic and Ivan Dadic for taking adverse action against a person because they were not a member of an industrial association contrary to s 346 of the Fair Work Act 2009 (Cth) (Chapter 8.10); and (iv) each of John Setka and Gerard Benstead for coercion by allocating duties to a particular person contrary to s 355 of the Fair Work Act 2009 (Cth) (Chapter 8.10);

(d) Australian Competition and Consumer Commission in order that consideration may be given to whether proceedings should be commenced and carried on against:

(i) the CFMEU for conspiring with others to contravene s 45E of the Competition and Consumer Act 2010 (Cth) contrary to ss 45E and 76(1)(e) of that Act (Chapter 8.7); and (ii) each of Michael Ravbar, Peter Close, Andrew Sutherland, Ben Loakes and the CFMEU for a secondary boycott for the purpose of causing substantial loss or damage contrary to s 45D of the Competition and Consumer Act 2010 (Cth) (Chapter 8.7);

(e) General Manager of the Fair Work Commission, or a delegate of the General Manager, in order that consideration may be given to whether a proceeding should be commenced and carried on against the TWU for a pecuniary penalty order for failing to hold records for 7 years contrary to s 231 of the Fair Work (Registered Organisations) Act 2009 (Cth) (Chapter 10.2);

(f) Australian Information Commissioner in order that consideration may be given to whether the Queensland Branch of the Shop, Distributive, Allied and Employees’ Association contravened National Privacy Principle 10.1 or any provision of the Privacy Act 1988 (Cth) (Chapter 12);

(g) New South Wales Director of Public Prosecutions in order that consideration may be given to whether Darren Greenfield should be charged with and prosecuted for common assault contrary to s 61 of the Crimes Act 1900 (NSW) (Chapter 8.4);

(h) South Australian Director of Public Prosecutions in order that consideration may be given to whether:

(i) John Perkovic should be charged with and prosecuted for assault contrary to s 20(1) of the Criminal Law Consolidation Act 1935 (SA) (Chapter 8.9); (ii) John Perkovic should be charged with and prosecuted for accosting or impeding another in a threatening manner contrary to s 20(1)(e) of the Criminal Law Consolidation Act 1935 (SA) (Chapter 8.9); and (iii) John Perkovic should be charged with and prosecuted for the common law offence of assault (Chapter 8.9);

(i) Queensland Director of Public Prosecutions in order that consideration may be given to whether:

(i) each of Michael Ravbar and Peter Close be charged with and prosecuted for extortion contrary to s 415 of the Criminal Code 1899 (Qld) (Chapter 8.7); and (ii) each of Michael Ravbar and Peter Close be charged with and prosecuted for threats to cause detriment to another person contrary to s 359 of the Criminal Code 1899 (Qld) (Chapter 8.7);

(j) Victorian Director of Public Prosecutions in order that consideration may be given to whether:

(i) each of Ralph Blewitt and Bruce Wilson should be charged with and prosecuted for obtaining financial advantage by deception and conspiracy to commit an offence contrary to ss 82 and 321 of the Crimes Act 1958 (Vic) (Chapter 3.2); (ii) John Setka and Shaun Reardon should be charged with and prosecuted for blackmail contrary to s 87 of the Crimes Act 1958 (Vic) (Chapter 8.2); and (iii) Shaun Reardon should be charged with and prosecuted for being an accessory to blackmail contrary to s 323 of the Crimes Act 1958 (Vic) (Chapter 8.2);

(k) Western Australian Director of Public Prosecutions in order that consideration may be given to whether each of Ralph Blewitt and Bruce Wilson should be charged with and prosecuted for:

(i) fraudulent conduct contrary to s 409(1) of the Criminal Code (WA); and (ii) conspiracy to commit an indictable offence contrary to s 558 of the Criminal Code (WA) (Chapter 3.2); and

(l) Divisional Branch Management Committee of the New South Wales branch of the Construction and General Division of the CFMEU in order that consideration may be given to whether any action should be taken against Brian Parker under r 51 of the Rules for the Construction and General Division of the CFMEU to investigate whether Mr Parker:

(i) has engaged in gross misbehaviour; (ii) has grossly neglected his duty; (iii) has conversed in an abusive or derogatory manner towards any person; (iv) has made statements which impugn the character and integrity of fellow officials; or (v) should be removed from office (Chapter 8.4 and 8.5).

Metadata and Discovery

A reminder about the potential for use by private investigators of metadata - on which the national Government is alas still apparently confused - is provided in AS v Murray [2013] NSWSC 733, which centres on the tort of intimidation.

The plaintiff [subject of a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW)] sought to recover $26,666 claimed to have been paid to Stephen James Murray as a result of extortion. The plaintiff also sought orders restraining Murray from communicating to any person any representation in relation to the plaintiff and restraining Murray from communicating in any form with the plaintiff other than by communicating with the plaintiff's solicitors. The plaintiff sought exemplary damages against the defendant in respect of the extortion.

The judgment states that

There is no doubt that the plaintiff paid the sum of $26,666 as a result of extortion. The plaintiff gives uncontradicted evidence to that effect and there is no reason to doubt that evidence. The only real question in this case is whether the extortionist was the defendant.

The extortion began in about December 2011 when the plaintiff received, at work, an unsolicited email from a person who identified themselves as "Felicity Jones". In a series of emails the extortionist demanded $26,666 and threatened to reveal to the plaintiff's wife, family and employer personal information concerning the plaintiff, and in particular the fact that the plaintiff had joined an internet dating site, if the plaintiff did not pay the amount demanded. It was apparent from the email sent to the plaintiff that the sender had considerable information concerning the plaintiff and appeared to have obtained that information by hacking into the plaintiff's computer and mobile telephone.

Eventually arrangements were made for the money to be paid in cash by leaving it at a place nominated by the extortionist, which is what happened. The plaintiff heard nothing further until 8 November 2012 when the extortionist began to make a fresh demand for $40,000. In response, the plaintiff engaged a computer forensic expert who was able to identify the IP address from which it was highly likely that the extortionist's emails had been sent. That IP address belonged to Telstra Corporation Limited (Telstra). The plaintiff then commenced these proceedings on 9 February 2013 initially seeking preliminary discovery against Telstra for records in relation to the IP address and against Vodafone Hutchison Australia Pty Ltd (Vodafone) for records kept in relation to the mobile telephone number from which the extortionist sent the plaintiff text messages.

Metadata, in other words, with discovery by a private agent rather than by the AFP, ASIO or other government agency.

The judgment goes on to state that

Preliminary discovery against Vodafone did not lead anywhere. However, preliminary discovery against Telstra revealed that two Telstra account holders had accessed the IP address identified by the forensic expert. One account holder was the defendant. The information disclosed by Telstra also disclosed a post office box number as the billing address for that account. The second email address was said to belong to a Christopher Robbins. It may be inferred that that name is fictitious. As a result of the information provided by Telstra, the plaintiff sought preliminary discovery against the Australian Postal Corporation (Australia Post). Material produced by Australia Post showed that the post office box belonged to the defendant and gave a physical address for the defendant in Huntingdale, Victoria. Using that address, the plaintiff joined the defendant and applied for search orders, which were granted on 15 March 2013.

The independent solicitor appointed by the court sought to execute those orders on 18 March 2013. However, the defendant refused to comply with them. In the meantime, the plaintiff arranged for a private investigator to conduct surveillance of the defendant. Following the attempt to execute the search order the defendant, at approximately 9 pm on 18 March 2013, drove to a place where he worked and appeared to place something in a large bin. Subsequently the private investigator searched that bin, but only found garden refuge.

A further search order was made by the court on 20 March 2013. That order was executed on 22 March 2013. During the execution of that order the defendant claimed that his home had been burgled and that a computer had been stolen. The defendant also conceded that he worked as a private investigator and had investigated the plaintiff about four years previously. He said that he may have a file relating to that investigation, although that file could not be found. The defendant did, however, have other files relating to his work as a private investigator. The search party found an internet thumb drive. The defendant denied that he had any other means of accessing the internet. However, shortly afterwards the search party found a Netgear-Bigpond wireless server. The defendant denied that he knew the login name and password for that device. However, the IP address associated with that device is the same as the IP address that the forensic expert identified as the one from which it was highly likely the emails had been sent. The search order was also executed at other premises.

As a result of the search order two computer towers, two memory cards and a laptop were located and impounded. Among material found were copies of a number of the emails that had been sent to the plaintiff under the name Felicity Jones.

In my opinion it is clear from this material that the defendant is the extortionist. That conclusion is supported by the fact that the emails were sent from an IP address associated with the defendant and the fact that the defendant had copies of the offending emails. It is also supported by the defendant's behaviour. Although nothing was found in the bin, the defendant's behaviour in driving to it at around 9 pm at night, the claim that he had been the victim of a burglary whilst under surveillance, the absence of any evidence of a burglary and the absence of the defendant's file relating to the plaintiff, strongly suggest that that file was destroyed by the defendant. The fact that the defendant had investigated the plaintiff four years earlier explains how the defendant chose the plaintiff to be the object of his extortion.

In the email the defendant sent to my associate he complains about the way the search order was executed. However, Mr Stevens, the independent solicitor appointed to conduct the search order, has provided a detailed account of the steps he took to serve and execute the order. I accept that evidence and, in my opinion, it demonstrates that there was no unfairness in the way the order was executed.

The Court concluded that Murray committed the tort of intimidation and referred to an offence under s 249K of the Crimes Act 1900 (NSW).

The judgment states that 

By [the] unlawful threats, the defendant compelled the plaintiff to pay the sum of $26,666. The plaintiff is entitled to recover that sum as damages.

In my opinion, the plaintiff is also entitled to injunctions in the form that he seeks. There are two bases for those injunctions. First, the plaintiff is entitled to an injunction to restrain threatened further conduct that would amount to the tort of intimidation. Second, the plaintiff is entitled to restrain the defendant from using confidential information that the defendant obtained improperly by hacking into the plaintiff's computer.

As to the first basis, s 66 of the Supreme Court Act 1970 (NSW) provides: (1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury. (2) Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases. ...

It will often be appropriate for the court to grant an injunction to restrain the threatened commission of a tort where damages are an inadequate remedy. In the present case, damages are clearly not an adequate remedy. The vice in the defendant's conduct is as much in the threat as in the conduct that completes the tort and there is no means by an award of damages to compensate the plaintiff for the injury caused by that threat. As to the second basis, the court will grant an injunction to restrain the publication of improperly obtained confidential information; see Meagher, Gummow and Lehane's Equity Doctrines & Remedies, 4th ed (2002) LexisNexis Butterworths at [41-045]. The information obtained by the defendant was confidential because it was personal information concerning the plaintiff. It was clearly obtained improperly because it was obtained by hacking into the plaintiff's computer.

The injunctions sought by the plaintiff are expressed very broadly. However, there is no relationship between the plaintiff and the defendant. The defendant has no reason either to contact the plaintiff or to make representations concerning the plaintiff other than in furtherance of his attempts at extortion. There are difficulties in formulating narrower injunctions which achieve the objective of preventing the defendant making further threats and carrying out those threats, and at the same time making it clear what the defendant must not do. For those reasons, in my opinion, it is appropriate to grant injunctions in the terms sought by the plaintiff.

Blackmail

In Latorre v R [2012] VSCA 280 a full bench of the Victorian Court of Appeal has allowed prominent fruit grower Vincent Latorre's appeal - from R v Latorre (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009) - against his convictions for two counts of blackmail. A conviction for extortion was upheld. Latorre was resentenced to 7 years' imprisonment (non-parole 5 years) for the extortion offence and a number of other offences.

Using his 'mafia reputation' Latorre and associates intimidated businessmen and their families into handing over substantial amounts of money. The offenders engaged in assault, threats to kill and damage to property to ensure that payments were made.

Possibly not the sort of person from whom you'd want to buy apples, pears and grapes.

The judgment features the following information -

The applicant conducted a wholesale fruit and vegetable business based in Shepparton. Orsida, his brother Roy, and their wives Anne and Glennis owned three orchards in the Cobram region.

Luisa Racioppo (‘Racioppo’) was employed by the Orsidas in early 2004 for about six months. In mid 2004, Orsida made sexual advances towards Racioppo, who had been in a relationship with the applicant’s acquaintance, Vincenzo Mantovani. Vincenzo Mantovani overheard a telephone call between Racioppo and Orsida, found out about the earlier advances, and became enraged

Shortly afterwards, Orsida was advised by Nicola (Nick) Mantovani that telephone recordings existed of him talking to Racioppo. Nicola Mantovani made a demand for money in exchange for the recordings and said that otherwise the recordings would be played to Orsida’s wife.

A few days after the demand was made, Orsida went to Nicola Mantovani’s packing shed and handed to the applicant $10,000 in cash. The applicant did not hand over the tape, but told Orsida that it would be destroyed (count 1 – blackmail).

The Orsidas subsequently sustained substantial deliberate damage to their business on the following occasions:

(a) on 26 October 2004, approximately 1,600 fruit trees were cut down and irrigation pipes were damaged at the Orsidas’ Lonergan Road property;

(b) on 15 August 2005, the cool room plant at the Orsidas’ Cottons Road property was set on fire;

(c) on 31 August 2005, approximately 500 fruit trees were deliberately destroyed and irrigation pipes were damaged at the Orsidas’ Murray Valley Highway property;

(d) on 4 September 2005, a pump shed at the Orsidas’ Lonergan Road property was set on fire;

(e) on 25 September 2005, the cool room plant at the Orsidas’ Cottons Road property was again set on fire; and

(f) on 28 September 2005, the Orsidas’ partially completed packing shed at Schubert Street was set on fire. 

Soon after the fire at Schubert Street, Orsida contacted Michelangelo Diaco (‘Diaco’), who knew the applicant. Diaco told Orsida that he had spoken to the applicant and that the applicant required a $10,000 ‘negotiation fee’. Orsida handed $10,000 to Diaco in October 2005.

Diaco subsequently told Orsida that the applicant wanted more money. A payment schedule was agreed upon whereby Orsida would hand to Diaco $150,000 in instalments over two years (count 3 – blackmail). In accordance with that agreement, Orsida paid to Diaco $20,000 on 23 December 2005, $25,000 on 10 March 2006 and $5,000 on 10 April 2006. ...

In mid-November 2003, Thomas Corso had a consensual sexual liaison with Tammara Mantovani. Vincenzo Mantovani was Tammara’s cousin and a friend of Thomas Corso. He heard about the liaison and became upset.

On 13 December 2003, Vincenzo Mantovani, Carmine Mantovani (Tammara’s brother) and another man assaulted Thomas Corso.

On 14 December 2003, Thomas Corso’s brother, Antonino Corso, assaulted Carmine Mantovani.

That evening, representatives of the Corso and Mantovani families met in an attempt to resolve the dispute. The applicant joined the families and told Antonino Corso that to resolve the issue, the Corsos owed him $100,000, half of it payable in two weeks and the remainder at the end of the fruit season (count 1 – blackmail).

In late December 2003, Antonino Corso gave the applicant $50,000 in cash. In April 2004, the applicant telephoned Antonino Corso and asked for the remaining $50,000. Antonino Corso said he needed a few more weeks and the applicant said, ‘Alright’. Antonino Corso did not pay the remaining $50,000.

Fair Game?

'Playing Away from Home: Sportspeople, Privacy and the Law' by David Rolph in 6 Australian and New Zealand Sports Law Journal (2011) 35-62 notes that

The private lives of sportspeople are of considerable interest to many media outlets and their audiences, yet sportspeople may not always be able to protect their privacy adequately by legal means. Focusing on Australian and United Kingdom law, this article examines how sportspeople can indirectly protect their privacy through defamation law. It also examines how breach of confidence and the proposed introduction of a statutory cause of action for invasion of privacy in Australia. Finally, it analyses the recent cases of Terry v Persons Unknown [2010] EWHC 119 (QB) and ‘the St Kilda schoolgirl scandal’ to explore the legal and practical difficulties sportspeople confront in protecting their privacy and managing their image.

In discussing recent developments Rolph notes that

As privacy law in Australia develops in whatever form it takes, sportspeople will confront ongoing difficulties protecting their privacy against media intrusion. For sportspeople who have long been prominent in their sporting careers and therefore of interest to the media, often in relation to non-sporting aspects of their lives, the prolonged media exposure may act to deprive them of expectations of privacy they might otherwise have enjoyed. For instance, in 2010, an escort, Jenny Thompson, gave an interview to the tabloid newspaper, The News of the World, about having sex with Premier League footballer, Wayne Rooney, while Rooney's wife, Coleen, was pregnant. Rooney reportedly considered seeking an injunction to restrain the interview being published but decided against it. The fact that, in 2004, Rooney had voluntarily discussed his use of prostitutes when he was "very young and immature", and, to a lesser extent, the fact that he and his wife sold the rights to their wedding photographs to a women's magazine for an estimated £2.5 million, would have weighed against the success of any application, as this prior media coverage, particularly the former, could be used as the basis of a defence of public interest by a media outlet. In order for sportspeople to maximise the possibility of protecting their privacy against media intrusion, they need not only to be vigilant but also consistent in their dealings with the media.

Interaction with the media can also present another difficulty. In Terry v Persons Unknown, the active "reputation management‟ engaged in on behalf of John Terry, the captain of the Chelsea and the English national soccer teams and 2009 Father of the Year, deprived him of his ability to protect his privacy. In late January 2010, Terry sought an injunction to restrain the publication of the fact of his extra-marital relationship with French model, Vanessa Perroncel; details of their relationship, including its consequences; material leading to the identification of Terry and Perroncel; and photographs evidencing or detailing these matters. Tugendhat J accepted that the information, if published and found to be false, was arguably defamatory. The evidence before the court indicated that Terry‟s solicitors and business partners met to discuss media interest in Terry‟s private life. The business partners arranged for Perroncel to sign a confidentiality agreement. Tugendhat J was concerned about this, as, unlike the solicitors, the business partners owed no duties to the court. His Lordship inferred that the business partners had a clear, commercial interest in protecting and enhancing Terry's reputation, particularly for the purposes of sponsorship. He also had reservations about whether the confidentiality agreement accurately reflected Perroncel's wishes, suggesting a power imbalance between Terry and Perroncel based on their relative public profiles, questioning whether the stated consideration of £1 was the only consideration provided and querying how Terry's business partners came to be talking to Perroncel in the first place. Tugendhat J was also concerned that Terry did not put on any evidence himself. This lack of evidence was apparently because Terry was busy. In his Lordship's words, "[r]espect for the dignity and autonomy of the individuals concerned requires that, if practicable they should speak for themselves". Given that the interest sought to be protected in the proceedings was Terry's personal privacy, this gap in the evidence was telling. It fortified Tugendhat J in his ultimate conclusion that Terry was principally concerned with his reputation, not his privacy. In his Lordship's view, Terry treated the legal proceedings in response to the allegations as "a business matter". Consequently, the restrictive approach to the grant of injunctions to restrain the publication of defamatory matter applied. The newspapers were at liberty to publish the allegations. Terry v Persons Unknown indicates that successful sportspeople, who rely upon professional services to create, maintain and protect their public profiles, need to take a different approach when engaging in litigation to protect their privacy. Given the highly personal nature of the interest involved, courts require sportspeople to demonstrate an active concern for their privacy, rather than devolving that responsibility to others.

When seeking to protect their personal privacy, sportspeople also confront real challenges from technology. This capacity and the inadequacy of current Australian laws to protect personal privacy were amply demonstrated by the experience of several prominent St Kilda footballers in late 2010. A seventeen year old girl uploaded naked photographs of Nick Riewoldt and Nick dal Santo to her Facebook page. She claimed that she had come to know the footballers when they visited her school, that a sexual relationship developed with one player, Sam Gilbert, and that she fell pregnant with his child, although the baby was stillborn. She claimed that she took the photographs herself in Melbourne but it was later revealed that they were taken by Gilbert on a team trip to Miami and that she had copied them from his laptop computer. Riewoldt had asked Gilbert to delete them immediately but Gilbert had not done so. The girl threatened to release further compromising photographs of other players from the Carlton and Sydney AFL clubs but this never transpired. The St Kilda Football Club and Gilbert commenced proceedings in the Federal Court of Australia against the girl. Marshall J ordered the girl to take down the photographs and not to post any further ones. However, by then, the photographs were widely circulating on the internet. The girl continued to make allegations via Twitter and Youtube. As a result of the publication of the photographs, Riewoldt was harassed when he went out in public. In January 2011, a settlement was reached whereby the girl agreed to comply with a court order that she delete the photographs and not repost them again in return for accommodation being provided for her for several months. The resolution of the Federal Court proceedings was not the end of the matter. The girl in question attended the St Kilda AFL team's training session, distributing leaflets and heckling players. In February 2011, she also claimed that a sexual relationship developed between her and player agent, Ricky Nixon, during which he supplied her with cocaine. Following an investigation, Nixon was banned by the AFL Players' Association's Agents Accreditation Board from acting as a player agent for two years. In March 2011, the girl gave an interview to 60 Minutes, as a result of which her identity became widely discussed in the traditional media (although it had been readily accessible on the internet from the outset). In the interview, Kim Duthie admitted that she had lied about her pregnancy. Duthie subsequently admitted that she lied about her involvement with Nixon but she may have been lying about her lying. At the time of writing, neither Riewoldt nor dal Santo has taken legal action in relation to the invasion of privacy. As a result of this affair, the AFL Players' Association called for the introduction of effective privacy laws, not only for players but for all individuals. The AFL also conducted a session for rookie players on how to use social media appropriately. This incident clearly demonstrates how vulnerable high-profile sportspeople are to having their privacy invaded and how inadequate existing legal protections are to provide them with a remedy.

Even if sportspeople have the benefit of court orders protecting their privacy, they may nevertheless find their private lives exposed by virtue of internet technologies. The recent experience of Manchester United footballer, Ryan Giggs, underscores this. Initially known by the pseudonym, 'CTB', Giggs obtained an interim injunction, preventing former Miss Wales and Big Brother contestant, Imogen Thomas, from giving an interview with The Sun newspaper about their relationship. Giggs suggested, and Eady J accepted as arguable, that Thomas was attempting to blackmail Giggs – an allegation rejected by those representing Thomas. Even though the court orders extended beyond traditional media, the social media platform, Twitter, allowed individuals to speculate as to the identity of 'CTB'. A large number of names were suggested, although Giggs‟ name predominated. So concerned was Giggs that he commenced proceedings against Twitter for breaching the injunction. Eady J refused to vary the injunction to allow Giggs to be identified on the basis that his identity had become public via Twitter. This was not the end of the matter. The Scottish newspaper, The Sunday Herald, acting on advice that an injunction issued by an English court was not binding in Scotland, published a front page photograph of Giggs with the word, 'CENSORED', written in a black bar across his eyes. Although it did not name Giggs, he was clearly identifiable. The newspaper contained substantial coverage of the case and explained why it had decided to disclose Giggs' identity: it was concerned with the pernicious effect of injunctions and superinjunctions on freedom of the press and open justice. As a result of its conduct, The Sunday Herald was threatened with contempt proceedings. Giggs' injunction was further subverted by John Hemming, a Liberal Democrat parliamentarian, who named Giggs as 'CTB' under parliamentary privilege in the House of Commons. Tugendhat J refused to vary the injunction to allow Giggs to be named on the basis that he had been named in parliamentary proceedings. However, the combined effect of these three forms of disclosure was that Giggs became widely known and reported in traditional media as 'CTB'. Newspapers speculated whether Giggs was "the new Tiger Woods" and whether his sponsorship deals were in jeopardy. The United Kingdom Attorney-General, Dominic Grieve QC warned that tweeters who breached injunctions in privacy cases were exposing themselves to punishment for contempt of court. Revelations about Giggs' private life continue to emerge, with the most recent, at the time of writing, being the allegation that Giggs had an eight year affair with his sister-in-law, as well as liaisons with his mistress' mother and a third, undisclosed lover.

Paradoxically, privacy protections are developing at the same time that internet technologies with the potential to subvert these protections are burgeoning. It may not be possible to protect privacy through absolute secrecy and prior restraint. For lawmakers and legal advisors, the experience of Ryan Giggs provides a salutary lesson. Whilst plaintiffs might prefer to avoid an invasion of privacy in the first place, the balance of competing interests might favour allowing media outlets to publish and then allow plaintiffs to sue for damages, mirroring defamation cases.

Publish And Be Damned?

A paper on 'Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory' by Paul Robinson, Michael Cahill & Daniel Bartels argues that

Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.

The paper summarises the results of

an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment.

Blackmail is not only a common subject of scholarly theorizing, but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. [The paper] reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community’s views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment.

The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory.