He didn't like her

From Joseph Epstein's snarky WSJ review of Sempre Susan (Atlas & Co, 2011) by Sigrid Nunez -

Sontag wasn't sufficiently interested in real-life details, the lifeblood of fiction, but only in ideas. She also wrote and directed films, which were not well-reviewed: I have not seen these myself, but there is time enough to do so, for I have long assumed that they are playing as a permanent double feature in the only movie theater in hell.

In case you didn't get the message that Epstein didn't like her he comments that -

In the end, Susan Sontag may have been most notable as a photographic subject and for the querulous interview, of which she gave a bookful (see "Conversations With Susan Sontag.") She was photographed by the best in the business, in poses sexy, earnest, sultry, brainy and sublimely detached. She did the siren in a thousand faces. Her last partner, Annie Leibovitz, is, appropriately, best known as a celebrity photographer. Sontag's obituary in the New York Times was accompanied by no fewer than four photographs — an instance of intellectual cheesecake.

If Susan Sontag had been a less striking woman when younger, her ideas would not have had the reach that they did. Something similar could be said about Mary McCarthy, another attractive writer, who claimed that Sontag was "the imitation me." Today, more than six years after Sontag's death, not her writing — as a prose stylist she gave no pleasure — but only the phenomenon of Susan Sontag is of interest.

And -

"Intelligence," Sontag wrote, "is really a kind of taste: taste in ideas." In her thrall to ideas she resembles the pure type of the intellectual. The difficulty, though, was in the quality of so many of her ideas, most of which cannot be too soon forgot. Her worst offenses in this line were in politics, where her specialty was extravagant utterance.

During the Vietnam War, Sontag went off to Hanoi as one of those people Lenin called "useful idiots"—that is, people who could be expected to defend Communism without any interest in investigating the brutality behind it. There she found the North Vietnamese people noble and gentle, if a touch boring and puritanical for her tastes. Doubtless that trip led to her most famous foolish remark, when she said that "the white race is the cancer of human history," later revising this judgment by noting that it was a slander on cancer. Hers was the standard leftist view on Israel, which was — natch — that it is a racist and imperialist country. All her political views were left-wing commonplace, noteworthy only because of her extreme statement of them.

Andrew Roberts in the WSJ adopts the same tone in his review of Lelyveld's Great Soul: Mahatma Gandhi And His Struggle With India (Knopf, 2011) -

"Great Soul" ... obligingly gives readers more than enough information to discern that he was a sexual weirdo, a political incompetent and a fanatical faddist — one who was often downright cruel to those around him. Gandhi was therefore the archetypal 20th-century progressive intellectual, professing his love for mankind as a concept while actually despising people as individuals.

George Scialabba emotes from the other direction -

Gandhi is, to my mind, the gold standard of 20th-century political greatness. He produced tremendous effects, overwhelmingly good, and he achieved them not by luck, force, or guile but virtuously, by persuasion and example. Martin Luther King is perhaps his peer in these respects, but the scale of Gandhi's accomplishment was much greater. ...

Lelyveld's probing account of the visionary-as-politician reveals that, as one might expect, the politician often prevailed over the visionary. The Mahatma had a remarkable capacity for compromise, and even for nimble rationalization. But he was morally serious, a genuine "great soul," and thus lacked the true politician's talent for convenient self-deception. "By the end," Lelyveld writes, he was "forced to recognized that the great majority of his supposed followers hadn't followed him very far," spiritually speaking.

Guardianship

The Victorian Law Reform Commission has released a 458 page consultation paper on Guardianship, featuring suggestions for reforming the Guardianship & Administration Act 1986 (Vic) and other state guardianship laws such as the Instruments Act 1958 (Vic), Mental Health Act 1986 (Vic), Medical Treatment Act 1988 (Vic) and Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

The statutes concern formal arrangements available when an individual is unable to make independent decisions about important matters because of a disability, for example substitute decision making such as enduring power of attorney for financial decisions and enduring medical treatment agent for medical treatment decisions. They include powers regarding involuntary detention and treatment of people with mental illness and compulsory treatment of people with intellectual disabilities who are a serious risk to others.

The consultation paper follows an information paper released in February last year and features proposals for new guardianship laws that encompass appointment of substitute decision makers by a tribunal in addition to personal appointment of substitute decision makers (eg when an individual uses an enduring power of attorney). Responses to the consultation paper are expected to inform a report to the Attorney-General in late December 2011.

The Commission indicates that it is aiming to ensure that the state's guardianship statutes "respond to the current and future needs of people with impaired decision-making capacity and promote their rights". Terms of reference for the review require the Commission to consider changes that -

• promote respect for human dignity, individual autonomy and other important human rights principles;

• reflect developments in policies and practices for people with impaired decisionmaking capacity since 1986;

• respond to the needs of an ageing population.

The Commission is to give particular attention to

• specific features of the Guardianship Act, including the role of guardians and administrators in advancing the rights of those represented and in assisting decisionmaking,

• whether the right balance is struck between the best interests of a represented person and rights in the UN Convention on the Rights of People with Disabilities,

• whether the powers and duties of guardians are "effective, appropriate and consistent" with Australia's obligations under that Convention and the Charter of Human Rights and Responsibilities Act 2006 (Vic),

• the validity and feasibility of informal decision making,

• potential extension of the Guardianship Act to people over 17 years of age,

• the functions, powers and duties of the Public Advocate and the Victorian Civil & Administrative Tribunal (VCAT),

• the tribunal process for appointing guardians and administrators

• whether there should be additional ways to review decisions made by guardians and administrators and new ways of dealing with inappropriate conduct by guardians and administrators

• whether existing laws concerning substitute consent for medical treatment and participation in research trials, including the 'person responsible' model, are appropriate, and whether the Guardianship Act interacts effectively with the Medical Treatment Act 1988 (Vic)

• whether ‘disability’ should continue to be a threshold requirement or should be replaced by concepts such as ‘capacity’ or ‘vulnerability’

• whether confidentiality provisions in the Guardianship Act adequately balance protection of private information and the need for transparency

The Victorian regime currently allows an adult with capacity to appoint one or more substitute decision makers and provides for appointments by a tribunal (and by the operation of an automatic legislative appointment scheme) when a person has not appointed a substitute decision maker. The Guardianship Act initially concerned appointment of guardians and administrators for people with intellectual disabilities moving from institutions into the community but has expanded to cover other groups, such as people with age-related impairments, with mental illness and with an acquired brain injury. It "draws a sharp line between capacity and incapacity to make decisions" and was not designed to respond to the needs of people whose capacity fluctuates over time or who can make their own decisions with some assistance. It thus offers only one mechanism: substitute decision making.

VCAT is authorised to appoint a guardian/administrator for someone who due to a disability is unable to make reasonable judgments about important personal decisions. The Act also automatically appoints people to undertake many medical decisionmaking responsibilities for others if they wish to do so, with those people (typically a relative) for example making most medical treatment decisions for individuals who are unable to consent to their own medical treatment, without the need for a tribunal appointment.

There is obvious potential for abuse and the Act accordingly establishes the position of Public Advocate with functions such as acting as guardian of last resort, as an advocate for people with disabilities and investigating matters related to guardianship hearings.

The Consultation Paper highlights reasons to update the regime -

• maximising participation in decision-making - a greater emphasis on promoting the autonomy of and participation by people with disabilities,exemplified by the UN Disability Convention

• a more realistic view of capacity - with recognition that the capacity of many people often fluctuates over time and circumstance

• changing attitudes to informal arrangements - a reconsideration of our reliance upon informal decision-making arrangements, the management of risk and concerns that some informal arrangements are highly restrictive with service providers becoming de facto guardians.

• more accessible laws and more efficient legal processes - concerns that the guardianship statutes are unnecessarily complex, difficult to understand and poorly integrated.

• the timeliness of reconsidering the roles and responsibilities of VCAT and the Public Advocate - with potential expansion of the latter's responsibilities.

The Commission suggests retention of the current distinction between the personal decision-making responsibilities of a guardian and the financial decision-making responsibilities of an administrator ("fundamentally different skills"), the system of tribunal appointments (instance by instance substitute decision-making appointments), the link between impaired decision-making capacity and disability (the objective element as an important way of ensuring guardianship laws "are not used to manage people simply because they engage in harmful behaviour such as excessive gambling or drinking"), the current system of automatic appointment in connection with most medical treatment decisions for adults unable to make their own decisions, and the Public Advocate.

In modernising the current regime it proposes new guardianship laws rather than amendments to the Guardianship Act, aiming for a protective safety net when required through "a coherent body of legal rules that responds to the needs of all people with impaired decisionmaking capacity because of disability ... in a way that respects their dignity and encourages them to be as autonomous as possible". New guardianship laws could seek to promote participation of people with impaired capacity, with substitute decision making be viewed "primarily as an enabling function, rather than as a restrictive one" and an integration of all relevant laws in one Act, offering more consistency in the responsibilities of substitute decision makers (regardless of how and by whom they are appointed).

Proposed changes include -

• new supported decision-making mechanisms - "mechanisms that have not been used before in Australia"

• a new decision-making continuum - inc clearer provisions by way of an advance directive and new supported decision-making orders made by VCAT

• modern principles to guide decision makers - eg the existing concept of ‘best interests’ decision making could be replaced by a 'substituted judgment' approach (with the substitute decision maker to make the decision that the person themselves would have made if that individual had the capacity to do so)

• improved safeguards and accountability - inc giving personally appointed substitute decision makers—enduring guardians and attorneys the same responsibilities and accountabilities as those appointed by VCAT, merits review of individual decisions and a civil penalty regime for substitute decision makers

• an expanded role for the Public Advocate - eg broader investigatory functions and powers for use in cases where there is an allegation of abuse, neglect or exploitation and the power to investigate possible breaches of new guardianship laws and to take civil penalty proceedings

• a more accessible and effective tribunal - inc changes regarding pre-hearing processes, confidentiality, procedural fairness

• lowering the age limit for some appointments - VCAT should be able to appoint a guardian or administrator for people who are aged 16 years or older, closing the current gap between child protection and adult guardianship laws

• expanded use of automatic appointments - changes to deal with complex issues that arise when a person with impaired decision-making capacity is admitted to, or detained in, a residential facility without consent but with their compliance (of significance as the population ages)

• interaction with other laws - it should be possible to use guardianship (personal and tribunal appointments) as a means of authorising psychiatric treatment and place of residence decisions for a person with a mental illness in some circumstances.

Oh dear

'The Liar As Hero' by historian Benny Morris in TNR (17 Mar 2011) begins by stating -

At best, Ilan Pappe must be one of the world's sloppiest historians; at worst, one of the most dishonest. In truth, he probably merits a place somewhere between the two.

Morris' demolition of Pappe proceeds with comments such as -

Those who falsify history routinely take the path of omission. They ignore crucial facts and important pieces of evidence while cherry-picking from the documentation to prove a case.

Pappe is more brazen. He, too, often omits and ignores significant evidence, and he, too, alleges that a source tells us the opposite of what it in fact says, but he will also simply and straightforwardly falsify evidence

and

The disproportion also reflects Pappe's worth as a historian. Let me explain. To cover the history of Palestine—a geographically small backwater in the giant Ottoman domain—and the activities of its aristocracy and their interaction with the authorities in the eighteenth and nineteenth centuries, one would have to spend many months in the Ottoman archives in Istanbul. There one would need to locate and pore over reports and correspondence from and about the relevant vilayets (provinces), Syria/Damascus and Beirut, and the relevant sanjaks and mutasarafliks (districts), Jerusalem, Nablus, and Acre, in addition to the central government’s deliberations and decision-making about Jerusalem and its environs. Pappe, who lacks Turkish, has not consulted any Ottoman archives. There is not a single reference to any Ottoman archive, or any Turkish source, in his endnotes.

and

Pappe repeatedly refers to "Harry Lock" of the British Mandate government secretariat in the 1920s —b ut the chief secretary's name was Harry Luke. Pappe obviously encountered the name in Hebrew or Arabic and transliterated it, with no prior knowledge of Luke against which to check it: if he had consulted British documents, he would have known the correct spelling. Pappe refers to "the Hope Simpson Commission" — there was no such commission, only an investigation by an official named John HopeSimpson. He refers to "twenty-two Muslim ... states" in the world in 1931, but by my count there were only about half a dozen. He refers to "the Jewish Intelligence Service" — presumably the Haganah Intelligence Service — and then adds, "whose archive has been opened to Israeli historians but not to Palestinians". To the best of my knowledge, this is an outright lie. All public archives in Israel, including the Haganah Archive in Tel Aviv, which contains the papers of its intelligence service, are open to all researchers.

and

It is unclear what Pappe is quoting from. I did not find this sentence in the commission’s report. Pappe's bibliography refers, under "Primary Sources", simply to "The Shaw Commission". The report? The deliberations? Memoranda by or about? Who can tell? The footnote attached to the quote, presumably to give its source, says, simply, "Ibid". The one before it says, "Ibid., p. 103." The one before that says, "The Shaw Commission, session 46, p. 92." But the quoted passage does not appear on page 103 of the report. In the text of Palestinian Dynasty, Pappe states that "Shaw wrote [this] after leaving the country [Palestine]". But if it is not in the report, where did Shaw "write" it?

and so on.

A bypass on the strategic roadmap

The Australian Department of Innovation, Industry, Science & Research (DIISR) is developing a 2011 Strategic Roadmap for Australian Research Infrastructure (2011 Roadmap), promoted as articulating Australia’s national research infrastructure priority areas. Alas, the 74 page Discussion Paper regarding the 2011 Roadmap, [PDF] reflects the DIISR bias towards 'big science' - the roads bypass most areas of law and the strategies reinforce a funding regime that in practice punishes the legal academy and undervalues the humanities in favour of kit such as the Australian Synchrotron.

The 2011 Roadmap will aim to consider new or emerging areas of research which may require different types of infrastructure in the future, and determine whether the current mix of Capability areas continues to meet researchers’ needs. The 2011 Roadmap will consider priorities in an international context, reflecting the international, collaborative nature of modern research and the important role of collaborative research infrastructure in bringing researchers together.

The 2008 Roadmap indicated that -

Investment in research infrastructure is an essential input to the conduct of excellent research. Research infrastructure is a vital subset of the resources that support researchers. It comprises the assets, facilities and services that support organised research and development across the innovation cycle and that maintain the capacity of researchers to undertake organised research1. In this sense, research infrastructure includes more than just physical assets, and extends to enabling infrastructure such as information and communication technologies (ICT) and skilled support staff who maintain and operate research facilities.

Some infrastructure investments involve providing Australian researchers with access to major research facilities located overseas. International collaboration of this sort helps to link Australian researchers more strongly with the global research community. Correspondingly, investments in national research infrastructure can contribute to building world class facilities that are attractive to overseas researchers. ...

At the institutional level, investments in research infrastructure are generally site-specific in nature and are implemented from the host institution’s resources. The Research Infrastructure Block Grants (RIBG) program is a key funding mechanism for universities in this respect.

In the current Discussion Paper DIISR claims legitimacy with the statement that -

Roadmapping has been identified in the Strategic Framework Discussion Paper as the most appropriate prioritisation mechanism for national, collaborative research infrastructure. The strategic identification of Capability areas through a consultative roadmapping process was also validated in the report of the 2010 NCRIS Evaluation.

They would say that, wouldn't they.

Six Expert Working Groups have been established using the National Research Priorities (NRPs) as an organising principle, with additional groups for ‘Understanding Cultures & Communities’ and ‘eResearch Infrastructure’. The eResearch Infrastructure group will specifically consider the underpinning, pervasive ICT infrastructure requirements needed to support all research and research collaboration.

The six Expert Working Groups are as follows -

• Environmentally Sustainable Australia

• Frontier Technologies

• Safeguarding Australia

• Promoting and Maintaining Good Health

• Understanding Cultures & Communities

• eResearch Infrastructure

As a consequence, if you want more than loose change, shoehorn your research or your research unit into those boxes.

The Discussion Paper comments that -

while we have established a separate Expert Working Group 'Understanding Cultures & Communities', it is important not to lose sight of the role that research in Humanities, Arts and Social Sciences disciplines plays in the translation, implementation and transformation of research across the NRPs.

After that momentary genuflection, the DIISR vision seems to concentrate on areas of profound importance such as "Human Movement and Sports Science". References to law and to justice are scanty - drive onwards, enthusiasts for dirigisme, and ignore what is conveniently not signposted as you head for what DIISR labels "Super Science", the big rock candy mountain or research Kingdom of Cockaigne. Page 37 (under the rubric of 'Securing Australia') exceptionally refers to -

The identification and prevention of the planning and execution of unlawful acts against Australian citizens is a feature of research into countering crime and extremism. Linking and integrating social datasets to conduct large-scale surveys using digital means is assisting socio-cultural research into methods to identify and prevent organised crime and terrorism-related radicalisation of the populace and social resilience to any such radicalisation globally. Decreasing prices for high-tech devices and ready access to information on the internet is also driving research into new methods of traditional and digital forensics and the utilisation of sophisticated techniques and best practice models for non-polemic extraction of evidence from an incident or scene.

The Paper goes to acknowledge that -

The Australian Research Council (ARC) Linkage Infrastructure & Equipment Fund (LIEF) is another important basic source of infrastructure funding. However, the scheme is not designed to meet the growing needs of social and cultural research in Australia. Some examples of projects supported in the period 2006-2011 include the various phases of AustLit, humanities eResearch infrastructure for literary and narrative studies, access to the European law collection, the Australian Women’s Archive, the Australian Dictionary of Biography Online, AusGate (digital technologies for live performances) and Australian Policy Online. It is notable that the success rate of LIEF grants awarded to the Humanities & Creative Arts (HCA) and Social, Behavioural and Economic Sciences (SBE) sectors combined in 2006-2011 was only 16.5%, translating to just 6.3% of total funds awarded.

Taken overall, the current investments in research infrastructure catering for the needs of the humanities, arts and social sciences are inadequate, being generally ad hoc and largely unconnected – both factors inimical to collaborative, multidisciplinary research in complex subject areas. Researchers require infrastructure solutions appropriate to the research practices in this sector and to the data which they generate. They also urgently require effective and efficient interconnections with international research communities and the data they produce and utilise. At stake is the capacity of current and future generations to be globally engaged and productive. Current investments do not meet the current needs nor go substantially towards the future needs of the sector.

There is however no clear commitment to address that inadequacy and DIISR support can be read as being merely rhetorical: there aint no damn money, it aint our fault and we definitely aint gonna fix it! If LIEF "is not designed to meet the growing needs" what solution will be provided by DISR and the Education Department?

The Discussion Paper notes that -

Each of the current National Research Priorities identifies research from the humanities, arts and social sciences as a key goal. However, research infrastructure to maximise the benefits and reach of the major outputs of the social and cultural sector is yet to be substantially supported. Appropriately resourced, the Understanding Cultures & Communities Capability will address this deficiency. Cross-Capability integration should be sought where possible, to enable social and cultural research to feed directly into problem-solving within the domains of science, health, border security, or other priority areas, and more broadly to enhance investment in and synergies between existing Capabilities.

We might think about -

• meaningful funding of law, justice studies and the humanities

• rectification of ARC and HERDC research evaluation criteria that are based on the sciences

• conceptualisation of 'infrastructure funding' as including funding of access to databases rather than large shiny buildings suitable for ministerial photo ops and self-congratulation by the research roadmap Great & Good (often, alas, the New Class of the Ruthless & Well-connected).

Informed consent

The Australian Communications & Media Authority (ACMA) has released a 66 page report regarding Community research on informed consent [PDF].

The report -

presents the findings of qualitative research into community attitudes, perceptions and understandings of rights and responsibilities in relation to informed consent across a range of communication platforms. The research focused specifically on issues with consent and privacy relating to digital communications within a transactional context.

The document follows Community research into broadcasting and media privacy, another study for ACMA regarding "community perspectives about informed consent and privacy issues that arise in broadcast news and current affairs programs, radio competitions and the digital media context".

The authors of the current report comment that -

Informed consent, as a legal concept has various meanings, depending on the legislation and circumstances in which the term is used. While the research took into account the way that informed consent is defined in communications legislation and regulation, it was not intended to examine consumers understanding of the legal concept. Rather, the research specifically aimed to explore the consumer experience of providing informed consent in various situations and to understand community attitudes towards consent issues more generally.

This research will assist the ACMA when assessing issues that arise in the communications sector around obtaining consent for contract formation, subscriptions services and use of personal information. The research findings are also intended to provide the ACMA with a rich understanding of community perspectives when providing advice to industry, government and other stakeholders on related subjects.

The report is based on 14 discussion groups (six to eight people aged 18 years and over from metropolitan and regional areas in New South Wales, Victoria and South Australia) considering scenarios with "realistic situations involving giving consent", eg a financial agreement with a company in return for goods and services, provision of personal information in return for a service or potential gain (such as for surveys or competitions) and provision of "permission for others to make decisions or use their skills on their behalf, such as medical providers".

The objective was to explore attitudes in relation to communication services regarding -

• what 'informed consent' means

• perceptions of the opt-in process (opt-in/opt-out) across various technologies and services

• the decision-making process that is associated with providing informed consent and inferred consent, including the length of time for which consent is valid across a range of situations

• issues associated with giving consent and privacy issues, sharing information within organisations and with third parties

• providing consent on other people’s behalf eg parents for children

• common concerns consumers have across a range of products and services relating to informed consent

Key findings were -

‘Understanding’ and ‘comprehension’ of the agreement are essential to ensure ‘informed’ consent can be given
A number of factors relate to ‘understanding’ and whether a consumer feels they can give informed consent, including -

• understanding the terms and conditions

• accessible language being used

• information delivered in an accessible format and layout

• a non pressured environment

• feeling comfortable and able to ask questions if they do not fully comprehend.

Participants believed that informed consent relies upon both the company and the consumer having a thorough understanding of the situation. Thus, they believed that a company has a responsibility to provide the full information to the consumer. In turn, a company has a right to expect that, in order to feel informed, consumers have understood the information should they agree. Consumers also recognise they have a responsibility to understand the information to which they are agreeing.

Providing ‘consent’ versus ‘informed consent’
Consumers perceived there to be a clear difference between providing ‘consent’ and ‘informed consent’. They identified that they often gave ‘consent’ but claimed that in reality it was not always ‘informed consent’, as they defined it. This is because they often provided consent without a full understanding and comprehension of the terms and conditions of the agreement.

Perceptions of ‘risk’ affect people’s attitudes and behaviour as to whether they want to feel fully informed
Consumers readily admitted that they often chose not to read or listen to the terms and conditions, and, therefore, be fully informed. Many respondents provided examples of instances when they -

• scrolled to the end of the webpage without reading terms and conditions

• clicked the box without reading the offered information

• became distracted or bored and chose not to read blocks of text or listen to a salesperson.

In these instances, consumers felt comfortable that they had not informed themselves of the terms and conditions because they perceived few, if any, negative consequences relating to financial or personal details being compromised.

Yet in situations that appear more ‘risky, consumers endeavour to fully understand and comprehend the terms and conditions to ensure they are ‘informed’. These situations included

• when substantial finances are involved, particularly ongoing contracts with a set period of time where they want to know the ongoing and maximum costs

• when detailed personal information is required and there may be a risk of personal privacy being compromised

• when the brand or company are seen to be more ‘risky’ and there may be more to lose if they are unscrupulous.

Consumers recognise that companies often make it difficult for them to provide informed consent

Consumers recognise that it was not always easy to give informed consent.
In some instances, they believed that companies purposely make it difficult for consumers to comprehend the terms and conditions. Many reported instances where they did not provide informed consent, because -

• the language used made the terms and conditions inaccessible, with the use of legalese or technical, unfamiliar phrases

• there was too much information in the terms and conditions to comprehend at once, particularly when provided over the phone

• the environment meant they felt pressured or rushed.

Consumers have a real issue when they feel the option of choosing whether they want to provide ‘informed consent’ is taken away from them.

Generally, consumers accept they have a significant role to play in ensuring their consent is informed. They recognise they have a responsibility to understand the terms and conditions of the agreements they are consenting to. They believe they should have a right to make the choice to access and read the terms and conditions before providing consent or not.

The real concern arises when consumers feel they do not have a choice as to whether they can provide ‘consent’ or ‘informed consent’. Thus, it is when information is not provided by the organisation, or not provided in an accessible format, that consumers believed consent can never be informed. Consumers can feel disempowered in these situations as they feel the power lies in the hands of the organisation with which they are dealing.

ANAO Electronic Security Report

The Australian National Audit Office's 92 page report on The Protection and Security of Electronic Information Held by Australian Government Agencies [PDF] has called on Commonwealth agencies to "mitigate security and information integrity risks", for example through restrictions on access to Hotmail.

The report covers an examination of electronic security at the Department of Prime Minister & Cabinet, Medicare, ComSuper and the Australian Office of Financial Management - characterised as a cross-section of the national bureaucracy.

It highlighted concerns regarding network security, with recommendations that agencies should -

• ensure content filtering blocks access to internet sites that are inappropriate for work use or may be high risk for malicious content (eg those with adult content, gambling, chatrooms, dating sites, criminal or terrorist information and music downloads)

• use email filtering software that block delivery of suspicious emails and prevent transmission of unmarked or inappropriately marked messages

• ensure that information security policies and procedures are complete and up-to-date. Some agency policies and procedures were outdated and each agency needed to compile or update Standard Operating Procedures (SOPs) for ICT security officers to assist "consistent implementation of key ICT security measures, controls and practices"

• block public email services such as Gmail and Hotmail on agency networks "as these can provide an easily accessible point of entry for an external attack and subject the agency to the potential for intended or unintended information disclosure."

• document patching processes for the network operating system and third party applications and monitor that the processes are correctly implemented.

Prime Minister & Cabinet has responded, indicating that it will cease allowing staff access to free email services from 1 July, a response that will presumably be emulated by other national agencies and cited by state/territory public sector bodies.

The ANAO also calls on agencies to review log-in credentials and reflect the level of access through appropriate password complexity requirements, finding that administrator or service account passwords (20% of passwords) were compromised at three of the four agencies examined in the report. That figure "compared reasonably favourably with some private sector and state government agencies".

The recommendations reflect the requirement under the national Protective Security Policy Framework (which superseded the 2007 Protective Security Manual) for Commonwealth agency chief executives to maintain "effective protective security programs" covering -

• each agency’s capacity to function;

• maintaining the public's confidence in agencies;

• the safeguarding of official resources and information held on trust; and

• the safety of those employed to carry out the functions of Government and those who are clients of Government

The report cites the June 2010 Directive from the Attorney-General regarding that Framework -

agency heads are to ensure that protective security is a part of their agency's culture. A successful culture will effectively balance the competing requirements of limiting access to those that have a genuine 'need to know' with ensuring key business partners receive the information in an appropriate timeframe.

It comments that -

The recent 'Wikileaks' release of Government electronic information has demonstrated the importance of maintaining appropriate protective security frameworks and the risks of failing to adequately protect electronic information.

Payment Systems and Privacy

The Reserve Bank site features Malcolm Edey's speech at Cards & Payments Australasia 2011 on 'The Reserve Bank's Strategic Review of Payments Innovation'.

Edey is the RBA Assistant Governor (Financial System). His speech covers the Bank's broad review of payment systems and features information about the ways in which payments by Australian consumers are changing, eg a significant ongoing reduction in the use of personal cheques.

Edey comments that "there's no particular trigger" for the review launched in July last year and expected to result in a final report at the end of 2011. The RBA's Payments System Board has "a mandate to promote payments system efficiency", including the cost, speed and reliability of payment services.

As a regulator, we recognise that our approach to these questions has to be quite different from the way we approach other cases for regulatory involvement. The RBA has significant powers, as you know, to designate payments systems and to set standards. But we're well aware that you can't regulate innovation into being. That's not the intention. As far as possible we'll be aiming to work with industry, looking at whether there are areas where more co-ordination is needed, and assisting with that where we usefully can.

The Bank's objectives in relation to an efficient payments system include -

Timeliness - Not all payments are time-critical, but users of the system should at least have options available that give recipients timely access to their funds and allow timely confirmation to both parties.

Accessibility - It's desirable that everyone who needs to make and receive payments should have ready access to the payments system.

Ease of use - It goes without saying that systems that are easier to use are preferable to those that are more cumbersome. But this is not only an issue of convenience. Systems that require manual entry of account and transaction details are prone to errors that can be costly to correct and can discourage use. That is one reason why payment cards are so popular – because most of the need for manual entry is removed. The need to know a recipient's account details is another challenge for many payment systems. One of our oldest payment methods – the cheque – deals with that by only requiring the recipient's name, with the recipient doing the rest. The challenge for electronic payment systems is to replicate or improve upon that sort of convenience.

Ease of integration with other processes - Payments are rarely made in complete isolation. Typically they are made as part of a process that requires reconciliation and recording of information by the parties involved. It's desirable that payment systems should be able to integrate efficiently with these processes. A key example here is the capacity of payment systems to carry additional reconciliation information with the payment.

Safety and reliability - End users of a payment system need to have confidence that the system will be available when needed and that payments will reach the intended recipient at the time promised. They also need to be confident that the system is secure, so that using it will not expose them to future losses as a result of information being fraudulently obtained. Some of these problems can be addressed by system participants guaranteeing payments, but good system design is a more fundamental solution.

Low and transparent costs - Some would say that this has been a preoccupation of the RBA over the past decade. If two systems perform exactly the same function, we should of course prefer the cheaper one. But the reality is more complicated than that. Each system typically has different attributes from every other system, and so end users need to make choices as to which one most cost-effectively meets their needs. That means that costs need to be transparent, so that those choices can be well-informed.

Edey referred to information gathered through the RBA Payments Use Study, covering 1,200 households in 2010. Participants kept a diary of their payments over a one-week period and were asked about their attitudes to newer payment methods such as contactless payments.

RBA conclusions from the diary data are that -

First, the broad patterns of payments behaviour observed in the 2007 study still hold.

1. Cash remains the most widely used payment instrument in Australia and the dominant instrument for low-value payments.

2. Cards are the dominant payment method for mid-value payments (between $50 and $500), with the use of credit cards growing relative to debit cards as the transaction value increases.

3. BPAY and internet banking are used frequently for bill payments and high-value transactions.

Second, payment patterns have nonetheless evolved to some degree in the three years since the initial study.

1. Use of cash has declined, especially noticeable in cash's share of the value of traditional payment methods – down from around 40% to 30% of the value of those payments;

2. Debit cards appear to have been substituted for cash, with scheme debit and EFTPOS transactions both gaining share.

Edey went on to note that -

Cheques - Fewer than 40% of consumers reported making a payment by cheque in the past year, most commonly because they felt there was no alternative for the type of payment. "That is significant, given that one of the issues being considered both by the industry and the current review is the scope for phasing out cheque use".

It's in my wallet - In responding to questions about what factors influence the choice of payment method at the checkout, respondents indicated that the most important factor was "what they happen to be carrying with them at the time". Otherwise, "the main factor cited in determining how people pay is the speed of processing the transaction, followed by the ability to use their own funds and the ease of managing finances". Speed is significant as an explanation of why people continue to use cash for small value transactions. It also indicates that the current push towards contactless cards might be quite important for many consumers.

Online - In considering high adoption of online payments around 90% of respondents had access to the internet. Of those, about 80% reported having made an online purchase and almost 60% reported an online transfer of funds to a family member or friend. "A surprisingly high 60 per cent of people with internet access said they pay most of their bills online". In considering factors preventing greater use of online payments 25% of respondents indicated that they were already satisfied and didn't think mechanisms could be improved. Otherwise, the major factor preventing greater use of online bill payments is perceived risk of fraud.

Fraud - Around half of respondents identified risk of fraud as a factor discouraging greater use for online purchases. "Probably this reflects a lower degree of comfort with online purchases using methods like credit cards and PayPal, compared to making bill payments using BPAY and internet banking transfers."

Adoption of contactless payments and mobile payments is much lower than online payments, with only 3% of respondents having made a contactless payment in the period and under 10% having ever made mobile payments.

From privacy and security perspectives Edey highlighted several areas of strategic concern -

Transmission of data with payments

Successful integration of payments systems into other processes requires that sufficient information travel with the payment to allow proper reconciliation. A business owner making payment to a supplier might wish to convey information, not just on the invoice number, but (for example) on which items on that invoice are being paid and why. An employer making a payment to a super fund needs to be able to provide information on the relevant employee accounts, the amounts of each payment and even the type of payment. Even an individual sending money to a friend or relative might simply want to attach a personal message to that payment. At the moment, the choices are largely either: to limit the additional information to the 18 characters permitted by the direct entry system; separate the payment from the information and put in place a process to bring them back together at a later stage; or to pay by cheque attached to the information source.

Timeliness and ease of addressing payments

There are times when we really need payments to be made quickly. The classic example is government emergency payments. Most government payments to individuals can be made perfectly adequately by the direct entry system. But in an emergency, the availability of funds the next day might not be sufficient. In recent times many such payments have been made using the RTGS system, even though this is a long way away from that system's intended use. Even then, the speed can vary significantly depending on the systems of the recipient bank.

A related issue is the ease of addressing payments to individuals. Writing someone's name on a cheque is relatively straightforward, directing an electronic payment can be much more difficult. For most people this currently involves entering BSB and account number details into an internet banking package. This of course means having to obtain those details from the recipient (who mightn't even remember them) and then keying in all the details correctly, which probably doesn't meet the 'ease of use' test.

The decline of cheques

The number of cheques written in Australia has been declining by an average of 9% per year over the past decade, adding to unit costs so that cheques, already an expensive form of payment, are becoming increasingly so. Cheque use remains "entrenched in certain areas" because it meets a number of specific needs, including the ease with which cheques can be addressed to others and accompanied by additional information, suitability in face-to-face exchanges and for providing an element of financial control.

Mobile payments

The Board's main interest will be in determining impediments to development of mobile payments, eg regarding messaging, device and security standards that have significant implications for efficiency and for innovation. The increasingly global nature of commerce suggests that adoption of internationally compatible standards will be very important for maintaining a world class payments system.

Electronic purse systems (general purpose, prepaid, and typically contactless cards such as Oyster and Octopus) have been successful where there is significant interdependency with electronic transport ticketing systems, slow to develop in Australia. Edey asked whether there is a significant impediment to development of these systems in Australia, given the already high use of payment cards. [A perspective on consumer expectations is provided in last year's 55 page ACMA study [PDF] on Community research into attitudes towards use of mobile payment in Australia.]

Security

The RBA's survey results suggest that concerns about fraud are impeding the take-up of online payments. This may also become an issue for mobile payments. A question for the Strategic Review is whether there is a need for increased co-ordination and co-operation on fraud issues.

Naming and claiming

With the ACT Law Reform Advisory Committee inquiry into legal recognition of transgender and intersex people underway it is interesting to see plans by 'Still Fierce and Allied Organisations' for what is described as the "first ever ISGD rally" in Canberra on 11 May. Naming has consequences in law and as a basis of political activism.

The ISGD rally encompasses "Intersex, Sex &/or Gender Diverse" people - a group that overlaps with the more traditional LGBTQI denomination - and is apparently under the auspices of Sex & Gender Education Australia, the Australian Health & Education Centre, the Australian Federal Greens Party, the Australian Socialists Alliance, the Femme Guild Sydney, the Scarlet Alliance and Equal Love Canberra.

The organisers -

call upon intersex, sex and/or gender diverse (ISGD) people and their families and allies to rally outside Federal Parliament on May 11th, 2011 to highlight the need for the Australian government to address the inequalities in law and human rights suffered by these groups of people.

Still Fierce - "a community-based collective that aims to promote the interests of the ISGD community, and create an inclusive space for ISGD folk to meet, network, socialise and engage in ISGD activism and education" - indicates that ISGD includes -

people who may be who may be intersex, transexed, transsexual, transgender, genderqueer, androgynous, without sex and/or gender identity, and people with sex and gender culturally specific differences.

The collective calls on the federal and state governments to "implement the recommendations of the 2009 Australian Human Rights Commission's Sex Files Report, review inequalities in the law for ISGD people and to outlaw unethical medical practices forced on intersex children".

It demands "Equal rights for ISGD People", through an ambitious agenda, in particular -

1 Implementation of the following AHRC Sex Files (2009) recommendations -

R1: Marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex.

R2: the definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex.

R3: evidentiary requirements for legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex.

R4: The special needs of children and young people who wish to amend their documents and records should be considered.

R5: A person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.

R6: Information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly.

R7: Documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex.

R8: Laws and processes for the legal recognition of sex should use empowering terminology.

R9: Where possible, sex or gender should be removed from government forms and documents.

R10: The federal government should consider development of national guidelines concerning collection of sex and gender information from individuals.

R11: The federal government should take a leadership role in ensuring a nationally consistent approach to the legal recognition of sex in accordance with the recommendations of the AHRC. We as ISGD people do not want a national board that acts to police people’s sex and/or gender. The states and governments work cooperatively with state and territory governments through the Council of Australian Governments (COAG) process to amend their respective legislation and policies in line with the AHRC recommendations, particularly in relation to birth certificates or identity documents.

R12: The federal government should consider establishing a national office to advise and assist the public and federal government in relation to changing legal recognition of sex, as an alternative or precursor to the national board put forward in Recommendation 11. in the AHRC report,

R13: In the event that Recommendation 11 fails to result in sufficient support from state and territory governments, the federal government should consider legislation to: amend the Sex Discrimination Act 1984 to ensure that the protection against marital status discrimination applies in the context of married persons seeking to amend their birth certificates, to effectively override existing discrimination under state and territory births registration legislation or establish a minimum national standard in respect of legal recognition of sex in documents and government records in line with the AHRC recommendations.

R14: The federal government should harmonise policies, procedures and legislation relevant to the legal recognition of sex in federal documents and records.

R15: The federal government should take immediate steps to ensure that all federal government departments and agencies provide clear and accessible information relevant to legal recognition of sex in documents and records and how those documents and records can be amended, such as by including a page on the department or agency’s website dedicated to this topic.

2 Legal protection against enforced medical treatment of ISGD children - Prohibition of enforced non consensual surgery, hormones or other treatments on ISGD children who are not in a life-threatening situation until they are old enough to give informed consent, in other words cognitively aware, not age specific. This must also include psychiatric or psychological treatment.

3 Federal antidiscrimination laws protecting all ISGD people - Requirement for a future Bill covering anti-discrimination law protecting intersex, sex and/or gender diverse people ...

1. Such a Bill must protect all Australians not just special interest groups.

2. The Bill must include protection against discrimination on the grounds of being intersex, sex and/or gender diverse.

3. Protection must be extended to the workplace.

4. Protection must be extended to all public places without exception.

5. Only private dwellings should be exempt and anytime the public is invited in they are no longer deemed private.

6. The Bill needs to state that some people are physiologically intersex and intersex is determined by a persons’ personal physical experience. Some people have sex diverse features that they are other than stereotypically male or female although they may not have a medical diagnosis of intersex. Neither should be hierarchical.

7. The Bill needs to recognise that gender diverse presentation is a normal part of a multi-faceted healthy culture.

8. People need to be able to bring complaints for sex and/or gender discrimination.

9. The present system at the AHRC is little more than window dressing when Attorneys General refuse to attend conciliation and the AHRC exempts itself from its own guidelines. Any future system needs to compel government departments to attend conciliation; since Australian governments are presently by far the greatest discriminators against ISGD people and anything less would be a farce.

10. Complainants need to be able to bring cases against private individuals, hospitals, medics, corporate bodies, educational institutions, clubs, and government departments. In short, the whole of society.

11. Applicants need the ability to bring cases without the burden of costs should they lose otherwise it just becomes a rich mans' law.

12. Cases for discrimination on the grounds of being intersex sex and/or gender should not be confused with sexuality.

13. The laws should not get into a redundant class system of labels of who is included under the Act because all Australians need to be protected from such discrimination.

14. Such a complaint involving violence should be treated as a hate crime.

15. For a person suffering discrimination as a child, their guardian needs to be able to bring a case on their behalf.

16. Adults need to have the ability to bring cases for the mistreatment they suffered as children including forced medical treatment administered against their interests and without their permission. The second arm of this clause also needs to be that adults can bring cases for medical treatment denied them as children including hormones and surgery for transitioning children. Children also need to able to have a court-appointed guardian to help them access treatment when it is refused, including emancipation from their families.

17. Any appeals process needs to be presided over partly by members of the public. The present system is incestuous between government departments.

18. The applicant needs to have people from special interest groups on such an appeal panel who have a common understanding of the issues involved.

19. The present situation in Australia that allows butchering of intersex children, labelled as necessary surgery, singles intersex out as category needing positive discrimination measures.

20. We suggest that the AHRC and attorney generals FAG follows the thinking of the Sex Files Report and use the phrase sex and/or gender diverse (SGD) people, plus the word intersex (ISGD). In total this would be protection against discrimination on the grounds of being Intersex, Sex and/or Gender Diverse.

21. Government-funded educational institutions need to be compelled to teach about the whole spectrum of human sex and/or gender diverse identities.

4 Full Medicare funding for medical and psychological procedures needed by any ISGD people - Presently pregnancy, menopause, andropause and reproductive technology, are all fully funded by the Medicare system but establishment and maintenance of sex and/or of gender identity is not which is sex discrimination. All Medicare items need to patient specific not sex specific. All ISGD people should have the right to claim needed treatments as fully funded Medicare items on a parallel means tested basis as with pregnancy, menopause, andropause and reproductive technology.

5 Full Marriage rights for ISGD People - Legal marriage needs to be between consenting adults regardless of their sex and/or gender

6 Enshrinement of the right to establish sex and/or gender identity in federal law - Federal protection needs to be in place to protect the right to legally establish a sex/or gender identity other than on the original birth certificate for all ISGD people.

Online stalking

Reading Police v Gabrielsen [2011] SASC 39, in which the South Australian Supreme Court overturned a SA magistrate's decision in a stalking case under s 19AA of the Criminal Law Consolidation Act 1935 (SA). The magistrate had held that it was necessary to show intent to cause apprehension or fear for the victim’s personal safety, finding that there was no case to answer on that basis. The Supreme Court thought otherwise, finding that there is nothing in the section to justify the Magistrate's interpretation: intention to cause apprehension or fear of embarrassment is sufficient, with a case to answer being made out on that basis.

Section 19AA provides that a person stalks another if -

(a) on at least two separate occasions, the person —

(i) follows the other person; or

(ii) loiters outside the place of residence of the other person or some other place frequented by the other person; or

(iii) enters or interferes with property in the possession of the other person; or

(iv) gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or

(iva) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or

(ivb) communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or

(v) keeps the other person under surveillance; or

(vi) acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear;

and

(b) the person —

(i) intends to cause serious physical or mental harm to the other person or a third person; or

(ii) intends to cause serious apprehension or fear.

Gabrielsen appears to have sent "offensive and numerous" emails and text messages, with the Magistrate finding that -

It would be reasonable to conclude that the content of the materials sent would arouse any or all of anger, resentment, disgust and outrage in a reasonable person in [the recipient's] circumstances. The content combined crude insult with accusations of grave sexual impropriety.

Those communications were "likely to give rise to a reasonable apprehension or fear" on the part of the recipient that Gabrielsen -

• Would make allegations to the recipient's wife thereby causing them annoyance at least,

• Would cause a very embarrassing spectacle ruining his daughter’s wedding day,

• Would spread the allegations amongst the congregation of his church causing him great embarrassment,

• Would paint embarrassing allegations on the walls of his house,

• Would embarrass him in front of his employer.

The Magistrate found that there was no case to answer -

because important elements of the offence had not been made out even though there was a clear case that the emails and text messages had been sent, that they were offensive and, if acted upon by the respondent, would have the result of causing enormous embarrassment.

He held that -

In my view it is not open on the evidence to infer that the defendant intended to cause [the recipient] a serious apprehension or fear for his personal safety when sending the material I have referred to above.

The defendant's conduct may well be characterised as deplorable, causing distress and embarrassment to his former friends, but it cannot, in my view, taking the prosecution case at its highest, give rise to a case to answer on a charge of stalking.

In making the appeal against that decision the state argued that the Magistrate applied the incorrect test by importing the requirement that the material was intended to arouse apprehension or fear for personal safety.

The Supreme Court held that the Magistrate clearly found that offensive texts or emails were sent on more than two occasions and that they would give rise to a reasonable apprehension or fear. "An intention to cause a serious apprehension or fear of being embarrassed is sufficient to satisfy s 19AA(2)(b)(ii)" and that therefore a case to answer had been made out.

Decaf Fraud Report

Now that the NSW state election is over the mass media have embraced the latest KPMG Australian Fraud Barometer report [PDF], which claims that fraud cases totalling $116 million went before the courts in the second half of last year, down from $132 million in the first half of 2010. The report covers "large fraud cases", ie some 67 cases. It speculates that the drop is attributable to businesses stepping up their "detection systems in the wake of the financial crisis" - "times are tougher and so they're a bit more vigilant".

KPMG Forensic representative Gary Gill commented that most cases involved accounting fraud, with perpetrators tending to be employees who knew how to get past internal controls and falsify records. "Despite the dip in this period, the $1.7m average per case is nothing to sneeze at, requiring urgent attention from every business".

KPMG claimed that -

financial institutions continue to be the largest victims of fraud, having lost almost $40m to fraudsters in the period. Fraudsters also hit government organisations, investors and commercial businesses hard.

Fraudulent loans, investment scams and theft of investors’ money accounted for about half of the frauds in this period.

These losses reinforce the need for financial institutions to thoroughly vet loan applications and know their customer. For investors, the old adage still applies - if it sounds too good to be true, it probably is.

Accounting fraud continues to be the most prevalent type of fraud committed, with a third of the 67 cases falling into this category, amounting to $11 million.

The report suggested that -

• the majority of frauds both by number and value (70 percent) continue to be perpetrated on the eastern seaboard (New South Wales, Queensland and Victoria).

• almost 50% of large frauds coming before the courts occurred in New South Wales, totalling $60m.

• Western Australia’s booming economy seems to be driving an increased level of fraud, with $25m of large fraud cases, where the majority of victims were investors.

• the average size of a large fraud was $1.7 million.

• although there were no high profile 'supercases', there was a steady stream of large frauds between $1 million and $10 million, many of them bearing the hallmarks of the types of internal frauds that often go undetected for long periods.

• an increasing number of cases of deception, where people are conned into handing over money, often through investment scams that are fleecing unsophisticated investors.

• as in previous periods, the value of frauds in the Financial Services sector for the period exceeded other sectors.

• government organisations suffered a range of frauds – mostly by external parties.

The actual report comprises a mere eight pages, of which one is the cover and another KPMG contact details. The analysis is nothing to knock your socks off: it's a simple tabulation (slicing & dicing by gender, location, type of fraud) of charges or convictions - the methodology is unclear - for offences over $100,000. All in all, what might be expected from a diligent but not especially gifted first year law undergrad with time to look at AustLII and newspaper coverage of who has been wheeled into the dock.

For more meaningful analysis readers might turn to research by the Australian Institute of Criminology and other research bodies.

Reply to attack

Last year this blog noted comments on the appeal against the decision by McLellan J in Trad v Harbour Radio Pty Ltd [2009] NSWSC 750. The decision concerned defamation action by colourful personality Keysar Trad.

The SMH site today reports that -

Muslim community identity Keysar Trad is not dangerous, disgraceful or a racist who incites people to commit violence, the NSW Court of Appeal has ruled.

Mr Trad, the president of the Islamic Friendship Association of Australia, has been cleared of those defamatory labels thrown at him by 2GB's Jason Morrison and backed by Supreme Court Justice Peter McClellan. Last week the Court of Appeal ruled there was no evidence to support them.

The court found that Justice McClellan had erred in his findings on a number of points in relation to those defamatory statements and has ordered a retrial to assess damages regarding Mr Trad's reputation.

However, the court allowed, in part, a rare defence known as "reply to attack", on some points relating to the counts. Mr Trad is considering appealing in the High Court.

The chief operating officer of 2GB, Stuart Thomas, said the court found that 2GB was only defending itself and allowed the reply-to-attack defence in five out of eight points.

The radio station was considering whether it would also appeal the remaining three points to the High Court, he said.

Tobias JA, McColl JA & Basten JA in Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 allowed Trad's appeal in part, setting aside the orders made by McClellan CJ and dismiss the appeal with respect to imputations a), b), d), g) and j). They remitted the proceedings to the Common Law Division for the assessment of damages in relation to the remaining three imputations - ie c), h) and k) - and order the respondent (Harbour Radio) to pay 50% of the appellant's costs of the appeal.

The Court noted that the jury in the initial trial had found that the broadcast conveyed defamatory imputations regarding the plaintiff [ie Trad] -

a. stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;

b. incites people to commit acts of violence;

c. incites people to have racist attitudes;

d. is a dangerous individual;

g. is a disgraceful individual

h. is widely perceived as a pest;

j. deliberately gives out misinformation about the Islamic community;

k. attacks those people who once gave him a privileged position.

Harbour Radio -

defended all the imputations on the basis that each arose from matter published on an occasion of qualified privilege at common law, as a response to it asserted was an attack on it by the appellant in a speech he gave at a public rally the day before the radio broadcast. The respondent further pleaded that imputations b), c), d), h) and j) were each a matter of substantial truth and related to a matter of public interest: s 15 Defamation Act. It claimed that any imputation held to be substantially true was published contextually to any others not so found in consequence of which the latter did not further injure the appellant's reputation: s 16 Defamation Act. The respondent further defended imputations b) - g) on the basis that they constituted comment on a matter of public interest within the meaning of Division 7 of the Defamation Act.

McLellan J -

upheld the defences in respect of each imputation with the exception of the defence of justification in relation to imputations h) and j). He found imputations b), c), d) and g) were substantially true. He held, for the purposes of s 15 of the Defamation Act, that the respondent's response to what he described as the appellant's "attack on the Australian government and the media, in particular the [respondent's] radio station" at the rally, related to a matter of public interest. The primary judge also upheld the defence of contextual truth finding that by reason of the substantial truth of imputations b), c), d) and g), imputations a), h), j) and k) did not further injure the appellant's reputation. Although the primary judge's findings on truth and contextual truth were sufficient to establish the respondent's defence, the primary judge indicated his conclusions in relation to the remaining defences. He held that the matter complained of was published on an occasion of qualified privilege as a response to the appellant's attack on the respondent. He rejected a claim by the appellant that the defence of qualified privilege was defeated by the malice of the respondent. He also found that imputations (b), (c), (d) and (g) were defensible as comment, being expressions of opinion based upon the appellant's attack on the respondent at the rally.

In considering that decision Tobias, McColl & Basten indicated that the issues for determination on appeal were -

issue a) Whether the defences of truth and comment can run in relation to the same imputations;

issue b) Whether the primary judge erred in finding imputations b), c), d) and g) were substantially true;

issue c) Whether the primary judge erred in upholding the defence of comment in relation to imputations b) - g);

issue d) Whether the primary judge erred in upholding the defence of qualified privilege; and

issue e) Whether the primary judge erred in finding there was no evidence of malice

In allowing the appeal in part the Court held that in relation to -

issue a) A defence of truth is available in respect of statements of fact and statements of opinion, but a defence of comment is not available in respect of an imputation properly characterised as a statement of fact

issue b) The primary judge erred in finding that the appellant believed that, in modern Australian society, death by stoning was the appropriate punishment for homosexuality:

The primary judge erred in finding that imputation b) was a matter of substantial truth both because the underlying factual finding could not be sustained and because he failed ask the question whether, given the attitudes and views properly found to be held by the appellant, a right thinking member of the Australian community would consider that he incites people to commit acts of violence

The primary judge erred in finding that imputation c) was a matter of substantial truth because he failed to ask the question whether, given the attitudes and views properly found to be held by the appellant, a right thinking member of the Australian community would consider that the appellant incited people to have racist attitudes.

The primary judge erred in finding that imputation d) was a matter of substantial truth because it may be doubted that the appellant's views on homosexuality published on a website via a discussion board were likely to encourage violence against homosexuals, because there was no evidence that the views were expressed on more than one occasion and because he failed to determine whether right thinking members of the community would consider a person who held those views and expressed them in the form that they were expressed on one occasion, to be a dangerous individual.

The primary judge erred in finding that imputation (g) was a matter of substantial truth because he failed to determine whether right-thinking members of the community would consider an individual who expressed views entirely repugnant to accepted values within the Australian community to be disgraceful: at [86].

issue c) The primary judge erred in finding that imputations b), c), d) and g) were defensible as comment, because there was no proper factual basis for them.

issue d) The primary judge did not err in finding imputations a), b), d), g) and j) were published on an occasion of qualified privilege. They constituted a legitimate response to the public attack upon the respondent or were within the latitude of response allowed by a reply to an attack.

The primary judge erred in finding imputations c), h) and k) were published on an occasion of qualified privilege. They were not relevant to the occasion of qualified privilege

issue e) The primary judge did not err in finding that the appellant failed to establish that the respondent was actuated by malice in the publication of the matter complained of.

On to the High Court!