Big Bangs

The High Court will hear the South Australian Government's appeal against the decision by the SA Supreme Court, in Totani & Anor v The State of South Australia [2009] SASC 301, that the state's anti-bikie law is defective.

Last year the SASC held that that key elements of the Serious and Organised Crime (Control) Act 2008 (SA) were invalid, a matter discussed here. At that time the state Attorney-General, Mr Atkinson, the same Minister who recently suffered an embarrassing backdown over legislation that also appears to be defective, vowed that the fight against Outlaw Motorcycle Gangs [OMGs] would continue ... presumably at least until the election.

This week was marked by the explosion of what appears to have been a car bomb - or merely a car in which incompetents were conveying a bomb - an explosion quickly announced as attributable to OMG infighting. Mr Atkinson reportedly commented that the fact that OMGs and their lawyers "squeal like stuck pigs about our legislation" was proof the laws were effective, foreshadowing bans on all OMGs.

The Police Minister, apparently competing with the A-G for colourful remarks (Atkinson had damned the state's leading paper as a sewer) reportedly claimed that the anti-OMG legislation was justified and commented that -

Churchgoers don't generally cruise the suburbs at five o'clock in the morning with explosives in their car. This is precisely why we have ensured that our police have the resources and the laws they need to stamp out the criminal activities of these gangs. Rather than running knitting circles or claiming to belong to a men's support group filled with ordinary fathers and grandfathers, the reality is these gangs consist of dangerous offenders heavily involved in the manufacture and sale of drugs, murder, extortion and intimidation.

Indeed, members of OMGs are not nice people ... but as a society we need to be wary about legislation that denies natural justice or that is so shoddy that it rightly occasions serious criticism by a state's highest court. (Justice David Bleby ruled that part of the legislation breached a "fundamental proposition" of law.)

The Minister lamented "constant criticism" by civil libertarians (apparently forgoing the opportunity to characterise senior members of the SA Bar as herbal tea sipping tree hugging hippies) and explained that his Government "will not now, nor will ever, apologise for giving the police the powers and resources to combat organised crime gangs and will do whatever is necessary to protect the public". People may of course disagree about the effectiveness and appropriateness of particular measures. Given the Police Minister's promise that "It's going to take time to win the war, but that is what we will win" we can expect to see more fireworks, inside and outside courts.

Hopefully some of the actors will recall Lord Bingham's 2006 comment on the rule of law [PDF].

There has been much debate whether the rule of law can exist without democracy. Some have argued that it can. But it seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live

Inquiries

The Australian Law Reform Commission has released its report on Making Inquiries: A New Statutory Framework, the first comprehensive review of the Royal Commissions Act 1902 (Cth).

The review was commissioned in early 2009, covering the operation of that Act and questions regarding whether an alternative form/s of Commonwealth executive inquiry should be established by statute. Those questions include whether there is a need to develop special arrangements for inquiries involving matters of national security and restrictions on disclosure of information to (and use of information by) Royal Commissions and other inquiries.

In preparing the report the LRC drew on a public consultation process and contact with the commissioners in charge of the Haneef (2008), Equine Influenza (2008), Oil-For-Food Programme (2006), Cornelia Rau (2005), Intelligence Agencies (2004), Building &Construction Industry (2003), HIH collapse (2003) and Aboriginal Deaths in Custody (1991) inquiries.

The ALRC offers detailed and cogent recommendations for improving ad hoc, independent, Commonwealth public inquiries.

In particular it recommends that the Royal Commissions Act (to be renamed the Inquiries Act) should be amended to provide for two tiers of public inquiry.

Royal Commissions should be the highest form of inquiry, dealing with matters of substantial public importance and established by the Governor-General. Royal Commissions, as the highest tier, would have a wider range of coercive and investigatory powers than the second tier of inquiry ('Official Inquiries'). Those inquiries should be established by a minister, rather than by the G-G, to look into matters of public importance. The coercive powers that may be exercised by each tier of inquiry would be a key distinction between the two tiers.

In a major step forward the ALRC comments that -

The Inquiries Act should set out the powers available to each tier of inquiry, rather than the Australian Government selecting the powers that may be exercised by individual inquiries on an ad hoc basis at the time they are established. The ALRC's preferred approach ensures an appropriate level of transparency in the inquiry’s processes and procedures. It may also improve the perception of independence of the inquiry that may not be achieved if the Australian Government is able to select the powers on each occasion when an inquiry is established.

The ALRC recommends that both tiers of inquiries should have the power to require the production of documents and other things, to require the attendance or appearance to answer questions (on oath or affirmation if so directed by the inquiry), and to inspect, retain and copy any documents or other things. A Royal Commission, but not an Official Inquiry, should have the power to apply to a judge for an entry, search and seizure warrant, or a warrant for the apprehension of a person who fails to appear or attend; and exercise concurrent functions and powers under Commonwealth and state and territory laws. Only a Royal Commission should have the power to abrogate client legal privilege or the privilege against self-incrimination.

The ALRC recommends development of an Inquiries Handbook "containing information for those responsible for establishing and administering inquiries, inquiry members, inquiry participants and members of the public on a range of matters relating to Royal Commissions and Official Inquiries". The Handbook would include information on the establishment and administration of inquiries, appointment of inquiry members, inquiry powers, protections and procedural aspects of inquiries, and use and protection of national security information by inquiries. The Handbook would not have statutory force.

The report discusses publication requirements, noting that the Royal Commissions Act does not require the tabling in Parliament of Royal Commission reports. The ALRC recommends that the Inquiries Act should contain a presumption that reports of Royal Commissions and Official Inquiries will be tabled by the Australian Government within 15 sitting days of receiving the inquiry’s final report, consistent with principles of government openness and accountability (and with requirements in similar federal, state and territory legislation). The Australian Government should publish an update on implementation of recommendations of an inquiry that it accepts: one year after the tabling of the final report of a Royal Commission or Official Inquiry; and periodically thereafter to reflect any ongoing implementation activity.

Given the concern about the high costs of inquiries and difficulties in accessing existing sources of information about those costs the ALRC recommends that the Inquiries Act should require the Government to publish summary information about the costs of completed Royal Commissions and Official Inquiries within a reasonable time after the inquiry has concluded. That summary information should itemise fees and allowances paid to the inquiry head and counsel assisting, financial assistance to witnesses and other participants for legal and non-legal costs, staff costs, ICT costs, office accommodation and other operational expenditure.

The ALRC discusses the statutory framework for handling national security information, noting that the Royal Commissions Act does not feature any provisions dealing specifically with protection of information that may prejudice national security during/after an inquiry. The ALRC considers that special procedures and powers regarding national security information are warranted. It argues that in determining the use or disclosure of information in the conduct of an inquiry (eg claims for public interest immunity regarding national security information or security clearance requirements for inquiry staff) inquiry members may benefit from expert advice that is independent of the provider of the information. It suggests that the Inspector-General of Intelligence & Security (IGIS) is "ideally qualified to give such advice" and that the proposed Inquiries Act should empower an inquiry member to request advice or assistance from the IGIS concerning damage or prejudice to national security in connection with use or disclosure of such information.

The report comments that -

The historical and political relationship between Indigenous peoples and the rest of the Australian community is unique. Further, public inquires have affected, and have the potential in the future to affect, the rights and interests of Indigenous peoples. In order to ensure that the special needs of Indigenous peoples participating in an inquiry are addressed adequately by an inquiry, the ALRC recommends that a Royal Commission or Official Inquiry looking into matters that may have a significant effect on Indigenous peoples should be required to consult with Indigenous groups, individuals and organisations to inform the development of procedures for an inquiry.

That duty to consult would arise only where the inquiry was likely to have a significant effect on Indigenous peoples (ie would not arise merely because an Indigenous witness was called to give evidence in an inquiry which otherwise had no special bearing on Indigenous interests).

Iced directories

In Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 Gordon J indicates that -

It is not sufficient to demonstrate the subsistence of copyright by asserting that someone (and I do not accept that such a person has been found in this matter), who may in certain broad circumstances, in an unspecified number of relevant instances, have done an act that constitutes some unknown contribution to a work in question "no matter how unimpressive" will be enough to make good the Applicants’ claim.

That decision, which has wider ramifications than lower revenue for Telstra's directories arm, calls on the IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 case in addressing questions about copyright protection of databases.

In the current judgment Gordon J notes that -

Many thought that the issue in these proceedings – whether the [White Pages and Yellow Pages directories] published by the Applicants satisfy the requirements of the Copyright Act 1968 (Cth) (the Copyright Act) to attract the statutory monopoly granted by that Act – might have been resolved by the decision of the High Court in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 254 ALR 386 (IceTV). It seems they were mistaken. The Respondents say it was. The Applicants say it was not.

Some law undergrads, on the basis of questions to me today, seem to think that the issues had been settled forever by the decision in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112, famously contrasted with the Feist judgment in the US.

The Australian court in Desktop gave copyright protection to Telstra's telephone directories, enshrining a 'sweat of the brow' doctrine.

In the IceTV case the High Court considered originality and use of non-substantial parts of television program (ie directory) information, with a comment that -

Much has been written about differing standards of originality in the context of the degree or kind of "skill and labour" said to be required before a work can be considered an “original” work in which copyright will subsist. "Industrious collection" or "sweat of the brow", on the one hand, and "creativity", on the other, have been treated as antinomies in some sort of mutually exclusive relationship in the mental processes of an author or joint authors. They are, however, kindred aspects of a mental process which produces an object, a literary work, a particular form of expression which copyright protects. A complex compilation or a narrative history will almost certainly require considerable skill and labour, which involve both "industrious collection" and "creativity", in the sense of requiring original productive thought to produce the expression, including selection and arrangement, of the material.

The current decision indicates that -

1. among the many contributors to each Work, the Applicants have not and cannot identify who provided the necessary authorial contribution to each Work. The Applicants concede there are numerous non-identified persons who “contributed” to each Work (including third party sources);

2. even if the human or humans who “contributed” to each Work were capable of being identified (and they are not), much of the contribution to each Work -

2.1 was not "independent intellectual effort" (IceTV [2009] HCA 14; 254 ALR 386 at [33]) and further or alternatively, “sufficient effort of a literary nature” (IceTV [2009] HCA 14; 254 ALR 386 at [99]) for those who made a contribution to be considered an author of the Work within the meaning of the Copyright Act;

2.2 further or alternatively, was anterior to the Work first taking its “material form” (IceTV [2009] HCA 14; 254 ALR 386 at [102]);

2.3 was not the result of human authorship but was computer generated;

3. the Works cannot be considered as "original works" because the creation of each Work did not involve "independent intellectual effort" (IceTV [2009] HCA 14; 254 ALR 386 at [33]) and/or the exercise of "sufficient effort of a literary nature": IceTV [2009] HCA 14; 254 ALR 386 at [99]; see also IceTV [2009] HCA 14; 254 ALR 386 at [187]-[188].

It will be interesting to see whether Telstra appeals to the full Federal Court (and beyond) and whether the failure of such an appeal is reflected in calls for amendment of the Copyright Act 1968 (Cth) to provide database protection through a sui generis regime modelled on the European Database Directive, discussed in Mark Davidson's The Legal Protection of Databases (Cambridge: Cambridge University Press 2003).

Central Australian Magical Gothic

Chapter Three of the national Social Justice Report 2009 features a plea for the "preservation" and strengthening of Australian Indigenous languages.

It is a fascinating document in terms of the values it embodies, the rhetoric in its expression (heartfelt but, to my mind, not particularly persuasive, especially when invoking Traditional Knowledge) and the ongoing crises it is seeking to address - both the loss of Indigenous languages (along with Traditional Knowledge) and fundamental problems of alienation, violence, substance abuse and unemployment within Indigenous communities. Just the thing if you're familiar with political gestures, bureaucratic inertia or incapacity, and the surreality of central american magical gothic.

The chapter laments disuse of Indigenous languages in Central Australia and other remote parts of Australia, notes problems with day by day administration of language policies in the states and territories, and questions the level of commitment provided by the national government in implementing the National Indigenous Languages policy announced last year.

It highlights mechanisms that might preserve and strengthen the remaining Indigenous languages, even revive their use ("language reclamation and revitalisation"). Those mechanisms include reference in the national Constitution to Indigenous languages, recognition of Indigenous languages as "national languages" or "official languages", greater funding for teaching in Indigenous languages from kindergartens onwards, more money - but of course - for various academic centres and arts projects, and establishment of a "national language authority" - shades of L'Académie française. Fortunately the recent Indigenous Spirituality report did not propose a national spirituality authority.

Claimed rationales include enhanced "cognitive development in infants", increased employment opportunities for Indigenous people" and the centrality of Indigenous languages to "Indigenous cultural knowledge [which] has assisted scientists in understanding patterns of climate change". Models include Greenland and Algeria, although critics will presumably suggest that the experience of neither is directly transferable to Australia or will provide an acid comment or two on cultural and physical suppression of minorities outside Algiers.

As a government document the chapter is disappointing, relying on assertions and conflating causation with correlation. Efforts to freeze-dry Indigenous languages or cultural expression are unlikely to be successful and the mooted economic/social benefits of tourism in reality are not necessarily founded on remote Indigenous people being proficient in Indigenous languages.

We might indeed be sceptical about assumptions regarding the virtues of what Walter Benn Michaels challenged as a restrictive 'identitarianism' and fuzziness in references to "properly preserved and made accessible appropriately". We might also be sceptical about initiatives such as the 'Indigenous Contemporary Music Action Plan' ("based on principles of flexibility, sustainability and diversity" etc) which will strengthen 'Pride in Identity and Culture through Language Revival' via support for "music in Indigenous languages to increase the transmission of languages across generations to younger speakers".

One contact suggested that channelling a singing cowboy or two doesn't necessarily strengthen Indigenous languages and or culture. Another more cruelly replaced the word 'music' in the Action Plan with the word 'milk' and pointed out that the amendment made sense (milk can "foster reduction in substance abuse; improved community health and cohesion" and governments should "seek to build the profile of milk as a positive factor in helping to address social and economic disadvantage. An enhanced focus on the role of milk in contributing to these broader strategies and outcomes could create greater opportunities for employment and income generation". That's of course a criticism of the language used in corporate strategy statements, rather than a dismissal of the fruit of the cow or what you'd hear if you were listening to an indie band in the Western Desert.

No jam with porridge?

ACMA, the national telecommunications regulator, has released a 40 page discussion paper [PDF] on mobile phone jamming.

At the moment use of devices for the purpose of jamming mobile phones is broadly prohibited. That restriction dates from 1999 when ACMA's predecessor published the Mobile Phone Jammer Prohibition, which formally sought to "prohibit the supply and operation of specified radiocommunications devices commonly known as mobile phone jammers" after criticism that "a small number of retailers were marketing mobile phone jammers" and the regulator "could not identify any legitimate uses for them".

ACMA has come under pressure from other government agencies to loosen or even abandon the prohibition. In particular, correctional agencies (ie the public/private bureaucracies that operate places where you can share a cell or shower with Bubba ... and twenty of his mates) have argued that use of jammers at prisons is a key law enforcement tool.

That argument reflects incidents where visitors or prison staff have been found smuggling mobiles to inmates, or where inmates have been found to have used mobiles, a use that breaches institutional expectations regarding discipline and denies the prison operator the ability to monitor incoming/outgoing calls (a monitoring that's useful if the inmates are threatening witnesses, attempting to commission a 'hit' on a judge or rival, seeking to coordinate drug importation/distribution or to corrupt some of their keepers).

ACMA indicates that it

has formed the preliminary view that a trial of mobile phone jammers, at a suitable correctional facility, would be a useful first step in evaluating the feasibility of making regulatory arrangements to enable ongoing deployment of mobile phone jammers in correctional facilities in Australia.
In particular, [it] is considering the potential for an exemption to the Mobile Phone Jammer Prohibition to facilitate the trial of mobile phone jammers at the Lithgow Correctional Centre, a maximum security correctional facility in regional NSW.

The paper -

# examines the ten year history of the Mobile Phone Jammer Prohibition and its interaction with other provisions of the Radiocommunications Act;

# considers the Mobile Phone Jammer Prohibition within the broader context of relevant regulatory theory;

# identifies problematic aspects of the current regulatory approach;

# explores options for future regulation of mobile phone jammers; and

# invites comment on those options and other matters relating to the regulation of mobile phone jammers; including consideration of the proposed trialling of mobile phone jammers at the Lithgow Correctional Centre.

It concludes that -

The making of exemptions over the past 10 years has brought into question one of the main reasons for the general prohibition of mobile phone jammers — the understanding that no legitimate uses for mobile phone jammers existed. However, the legitimate uses that have emerged are generally sector specific (defence, law enforcement, emergency situation management). That is, while some of the reasons given for making of the Mobile Phone Jammer Prohibition in 1999 would now be qualified, other concerns remain valid (such as the use of jammers for nuisance purposes) and some new issues have arisen (such as the potential use of jammers by terrorists).

iiNet, BitTorrent and the FCA

The Federal Court in the 'iiNet Case', ie Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 has created fun for intellectual property undergrads with a judgment on whether Australian internet service provider iiNet authorised infringement of the Copyright Act 1968 (Cth) by subscribers who were using BitTorrent to snaffle free copies of feature films.

In his 200 page judgment Cowdroy J notes that -

As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment.

He indicates that -

The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.

The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.

The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons.

What were those reasons? Cowdray J indicates that -

Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the 'means' of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the 'means' of infringement. There does not appear to be any way to infringe the applicants' copyright from the mere use of the internet. Rather, the 'means' by which the applicants' copyright is infringed is an iiNet user's use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

Stay tuned for the next episode.

Spot and Fluffy survive The Rapture

Counting myself as fortunate to be among those miscreants who won't be raptured (spending eternity in what looks like a bed sheet alongside the congregation of Hillsong is not my cup of tea) I was amused by an article in the Guardian about a pet-minding service for those who expect - or hope - to be experiencing a special kind of spiritual uplift in the near future.

The Guardian reports that US company Eternal Earth-Bound Pets (EEBP) is offering to take care of your pets during The Second Coming, ie when the godly folk ascend physically to heaven - one imagines that there will be temporary congestion in the airspace over Baulkam Hills - and the sinners are left behind to enjoy something like The Road, but with added cockroaches, spiders and a Derrida-quoting crit lit student or two (the latter, of course, to be offered to Billy Bob and his fellow cannibals).

What will become of your pets when you are snatched up to heaven? Really bad stuff is predicted to happen during Tribulation. How safe will a small fluffy dog be? Who will look out for the interests of an indoor cat, a tank of fish who actually have quite narrow temperature requirements, or a bird with only a few words of English?

Post-Rapture Tribulationists in the United States have a possible answer. Eternal Earth-Bound Pets, USA, is staffed by avowed atheists, also ineligible for Rapture. For a one-time charge of $110, they pledge to adopt your pet if you are Raptured within the next 10 years. Founded in June 2009, they now cover 22 states. ...

EEBP's market was originally conceived of as post-Rapture Tribulationists; it now appears narrower: post-Rapture Tribulationists who love particular pets, and who can bring themselves to trust atheists.

Can the unrighteous legally take money from the pious in relation to provision of services regarding an event that might just not happen?

The answer to that question is of course yes: it's matter of standard contract law. The person who expects to be raptured and wants someone to take care of Fluffy and Spot must not be under a legal disability (eg cannot be off his/her face or in barking moonbat mode when entering into the transaction) and courts would seek to determine an element of fraud but otherwise the cash registers can cling.

What if EEBP didn't perform, eg the Rapture happened and the cats n dogs were not properly looked after? Assuming that the secular legal system was still in place after the End of Time (a somewhat heroic assumption) disgruntled patrons could presumably demand their money back. Of course the wicked atheists, if not condemned to perpetual torment in a pit of fire listening to Dolly Parton or Beyonce, might plead that they had the best of intentions but were thwarted by an Act of God. We would need to look at the specific expressions in the contract, which might be akin to one of those amusing insurance contracts that promise to pay out if the Martians freeze-dry New Jersey or fritz Manhattan.

What if the godless pet minders had engaged in villainy, by for example eating said moggies and dogs? I do not purport to answer on behalf of the all highest, who might well think that eating a cat (nasty, sly, indolent creatures) was better than eating a child. In South Australia, subject to the defence of necessity, turning cats into casseroles is specifically prohibited by s 10 of the Summary Offences Act 1953 (SA), with a penalty of $1250. That Act does not make it an offence to eat babies or members of the clergy, elsewhere penalised as interference with a corpse.