Celine translated by Larkin

From Lee Siegel's characteristically contrarian review in MoreIntelligentLife -

Go the F*** to Sleep is an expletive-laced cry of adult rage disguised as a child’s book of lullabies that is now a smash bestseller. Go, as they say, figure. The book consists of page after page of more or less conventional two lines of nursery rhyme, and flat-footed ones to boot — "The tiger reclines in the simmering jungle./The sparrow has silenced her cheep." — followed by another two lines, which are crude, angry pleas for the resistant child to immediately make himself unconscious. "F*** your stuffed bear, I’m not getting you s---./Close your eyes. Cut the crap. Sleep."

The whole thing reads like Celine translated by Philip Larkin and recited by James (Tony Soprano) Gandolfini. It has the vitality of a Bronx cheer at a stuffy formal dinner. It is supposed to be a prank, a great, vulgar cri de coeur revealing a truth hitherto hidden away: parents resent their kids for depriving them of sleep. But the F-word is a powerful imprecation that carries a wish for subjugation and even annihilation. A celebrity among words, it is — like certain tough-guy actors who have made it their trademark — full of rage. The idea of applying it to children, “in fun”, in a world where they are the first victims of adult stupidity, incomprehension and rage simply doesn’t work as an extended joke. "You know where you can go? The f*** to sleep." None of the parents I know, who like my wife and me have young children, could make it past the first few pages without tossing the book down in disgust.

The very fact of the book's commercial success, however, seems to have inspired legitimising kudos. After the book — written by Adam Mansbach and illustrated by Ricardo Cortes — rose to bestseller-list heights, writers rushed to explain just what made it so important to own. In a typical effusion, one writer deployed Proust and Freud on her way to extolling the book as "odd, rageful, beautiful", praising it for exposing "a kind of existential despair that is very particularly ours". And you thought getting the kids to sleep was the least of your problems.

I, on the other hand, am a sucker for the pictures of the drowsing tigers.

Garry Wills' NY Times review of Inside Scientology: The Story of America’s Most Secretive Religion (Houghton Mifflin Harcourt 2011) by Janet Reitman and Render Unto Rome: The Secret Life of Money in the Catholic Church (Crown 2011) by Jason Berry begins -

We do not need these books to tell us that money and religion make for a poisonous combination. But it is of some interest to see that ancient truth confirmed in both a church as relatively new as Scientology and one as ancient as Roman Catholicism. Even religious leaders develop a certain swagger when they know they are backed by bundles of cash. When a French court fined Scientology nearly a million dollars, one of its officials shrugged that off as “chump change.” And when the Vatican ran a deficit of nearly 2.4 million euros in 2007, an Italian journalist familiar with the church’s finances dismissed the debt as “chopped liver.” Chump change or chopped liver, both churches have bigger sums they can get to and use, and few outsiders are given a look at how they do it. These two books trace the cash source of theological confidence.

Miracle busting

The Australian Competition and Consumer Commission has instituted proceedings against Sensaslim Australia Pty Ltd (Administrator Appointed), Peter Clarence Foster, Peter Leslie O’Brien, Mr Adam Troy Adams and Michael Anthony Boyle.

The colourful Foster is a pin-up boy for teachers of consumer protection law, with a history that includes marketing of Bai Lin tea, Chow Low tea, Ageless Aging jelly, the TRIMit diet pill and other products that supposedly have miraculous benefits. He had an interesting connection with Fijian and UK politicians, including controversial contact with Cherie Blair (a nice illustration of the notion that very clever lawyers sometimes have very poor judgment in dealing with charming scammers), and has had trouble with passport and money laundering offences.

The ACCC alleges that Sensaslim and several of its officers engaged in misleading and deceptive conduct and made false representations in relation to the identity of Sensaslim officers, the Sensaslim Spray and the business opportunities offered by Sensaslim.

The alleged conduct includes -

• failing to disclose the involvement of Peter Foster in the business of Sensaslim;
• falsely representing that the Sensaslim Spray was the subject of a large worldwide clinical trial when in fact no such trial was conducted;
• falsely representing that Dr Capehorn, an obesity specialist, gave unqualified support to the effectiveness of the Sensaslim Spray and the purported clinical trials;
• falsely representing that Michael Boyle was managing the business of Sensaslim;
• failing to disclose that Michael Boyle was intending to resign as Director immediately following the launch of Sensaslim;
• falsely representing that Sensaslim franchisees were already participating in, and profiting from, the Sensaslim franchise, that a Sensaslim franchise had a certain earning potential and that there was a “money back buy back guarantee”

The ACCC is seeking court orders including declarations, injunctions, penalties, compensation orders, orders that Sensaslim officers be disqualified from managing corporations in the future and costs.

The Federal Court last week made orders granting leave for the ACCC to proceed against Sensaslim Australia Pty Ltd (Administrator Appointed). Foster, O’Brien and Adams are restrained from taking further steps to make representations regarding the efficacy of the Sensaslim Spray where the basis for the representation is a clinical trial or scientific report, unless the clinical trial was conducted and is the subject of a scientific report which has been published in a peer reviewed scientific journal.

SensaSlim has attracted attention over the nature of its claims, a website that appears to use deceptive images (instances of identity theft) and its defamation action against La Trobe University academic Ken Harvey, whose action has exposed inadequacies in the policing of claims regarding products with 'therapeutic' qualities. We need more people like the courageous Dr Harvey and fewer rich - and shameless - criminals such as Foster. Now that the ACCC has acted the Therapeutic Goods Administration (TGA), one of the more somnolent parts of the national bureaucracy despite its major responsibilities, might engage in some self-examination regarding the quack medicine regime. At the moment we are waiting for the Australian Health Ministers to adopt a more fact-based approach to what is dubbed 'complementary medicine', the subject of my AHMAC submission earlier this year regarding regulation of practitioners of 'therapies' such as 'magic touch'

Allphones

In Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 5) [2011] FCA 807 Allphones has been ordered to pay costs and fined $45,000 for contempt of court.

Allphones is a owner and franchisor of a network of retail stores selling telecommunications products. Disagreement between Allphones and a franchisee - involving the Trade Practices (Industry Code – Franchising) Regulations 1998 and the Trade Practices Act 1974 (Cth) - was reflected in Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338. In October 2008 Allphones gave undertakings to the Federal Court not to withhold consent to assignment of its franchises on a certain basis. regrettably, the undertakings were not effected.

Allphones has been held to have breached the undertakings in June 2009 by withholding consent to one of its franchisees assigning the franchise agreement on the basis that -

• the franchisee had not released Allphones from liabilities regarding a Notice of Dispute and
• the assignee must enter into a form of franchise agreement with Allphones that is different to the initial franchise agreement

Allphones also did not give seven days notice in writing of its intention to withhold consent to assigning the franchise agreement.

Neither the Australian Competition & Consumer Commission nor the Court were impressed.

Allphones acknowledged that its conduct was both wrongful and culpable, and apologised to the Court and franchisees. Potential franchisees might take note.

Federation

The report of the Senate Select Committee on the Reform of the Australian Federation, a marvellously 'states rights' document, is now available.

The Committee was established last year to -

a) inquire into and report by the last sitting day of May 2011 on key issues and priorities for the reform of relations between the three levels of government within the Australian federation; and

b) explore a possible agenda for national reform and to consider ways it can best be implemented in relation to, but not exclusively, the following matters:

i) the distribution of constitutional powers and responsibilities between the Commonwealth and the states (including territories),
ii) financial relations between federal, state and local governments,
iii) possible constitutional amendment, including the recognition of local government,
iv) processes, including the Council of Australian Governments, and the referral of powers and procedures for enhancing cooperation between the various levels of Australian government, and
v) strategies for strengthening Australia's regions and the delivery of services through regional development committees and regional grant programs.

The Committee's 162 page Australian Federation: An Agenda for Reform report [PDF] makes 21 recommendations -

R1 - that the tendency towards greater centralisation within the Australian federation resulting from High Court decisions be among the matters referred for inquiry to the Joint Standing Committee proposed in R17 of this report. In the event that the proposed committee is not established, more extensive academic research should be undertaken with a view to formulating policy proposals that might be referred to a constitutional convention for possible constitutional change.

R2 - that proposed intergovernmental agreements between the Commonwealth, state and territory governments be referred for consideration and review to the Joint Standing Committee proposed in R17 of this report.

R3 - that exposure drafts of legislation intended as the foundation for a referral of power to the Commonwealth be made available for examination by parliamentary committees, including, as appropriate, the Joint Standing Committee proposed in R17 and the Senate Standing Committee for the Scrutiny of Bills, prior to their adoption.

R4 - that the Joint Standing Committee proposed in R17 inquire into the consequences and uncertainties created as a result of the decisions in Re Wakim and R v Hughes.

R5 - that the Council of Australian Governments (COAG) be strengthened through institutionalisation to ensure the Council's effective continuing operation and ability to promote improved mechanisms for managing federal state relations. Principles of transparency and joint ownership should be central to this institutionalisation.

R6 - that agendas for COAG meetings be developed jointly by Commonwealth, State and Territory governments, that they be made publicly available before meetings, and that the timing, chairing and hosting of COAG meetings similarly be shared.

R7 - that outcomes of COAG meetings be published in a more transparent manner than is currently the case with the communiqués.

R8 - that the states and territories establish a stronger foundation for the Council for Australia’s Federation by providing additional funding, formalising Council processes and ensuring that it meets more regularly than is currently the case.

R9 - that the Joint Standing Committee proposed in R17 of this report inquire into the need for adjustments to the IGA on Federal Financial Relations and to the level and structure of taxation in Australia to provide the states certainty regarding revenue raising and their capacity to meet their responsibilities. In considering this issue, the committee should inquire into any related matters that it determines are appropriate, including the roles of the state and federal governments, and seek advice from the Productivity Commission, the COAG Reform Council and the Commonwealth Grants Commission as required.

R10 - that the recently announced review into the distribution of revenue from the Goods & Services Tax give particular attention to the issue of incentives and disincentives to states and territories to maximise their revenue.

R11 - that the Joint Standing Committee proposed in R17 be asked to inquire into the extent of and need for reform of the arrangements for horizontal equalisation that currently exists between local government shires and municipalities across Australia.

R12 - that the issues of funding and constitutional recognition of local government be among the matters proposed for inquiry by the Joint Standing Committee proposed in R17.

R13 - pending the outcome of this inquiry, that mechanisms other than constitutional amendment, perhaps by way of agreement through COAG, be explored to place Commonwealth funding of local government on a more reliable long term foundation.

R14 - that each state give consideration to strengthening existing regional governance frameworks to improve the delivery of essential services and take into account the needs of local government. In particular,state governments are encouraged to review the boundaries of regions created for the administration and delivery of state services such as health and education to ensure their closer alignment with each other.

R15 - that the Commonwealth Government review the Regional Development Australia program after three years operation, to ensure the program effectively contributes to the long-term sustainability of Australia’s regions.

R16 - that propositions for change to the Constitution be referred for consideration to a constitutional convention and that responsibility for the agenda and organisation of the convention be the responsibility of a newly institutionalised COAG.

R17 - the establishment of a Joint Standing Committee of the federal parliament to be administered by the senate and with a senator as its chair. The committee should have a mandate to conduct its own inquiries and be assigned a range of oversight responsibilities that would enable it to assume a significant and integral role in helping to manage Australia’s modern federation, including responsibility to provide regular oversight of COAG.

R18 - that the Senate Foreign Affairs, Defence & Trade References Committee undertake an inquiry into the merits of Professor Uhr’s proposal that Australia sponsors an ongoing regional dialogue among elected representatives and parliamentary bodies in the Asia Pacific on the political management of decentralised and devolved national governance.

R19 - that funding be made available by the federal, state and territory governments for the establishment within an Australian university of a centre for the study and dissemination of ideas relating to federalism and Australia’s federal system of government.

R20 - while the committee acknowledges the important work done by organisations such as the Museum of Australian Democracy and the Parliamentary Education Office in improving Australians' knowledge and understanding of Australian federalism, there is a need to promote a deeper understanding of federalism in the wider post-school community. Enhanced funding should be made available by the federal, state and territory governments to appropriate institutions to promote this deeper understanding.

R21 - that the Australian Research Council identify Australian federalism as a priority area for research funding.

Rights and rationales

Fresh on yesterday's announcement that Australia is moving towards a broad 'right of privacy', SSRN has released 'The Concept of a Right to Privacy' by Eoin Carolan (University College Dublin)-

This is a chapter taken from the first edition of The Right to Privacy: A Doctrinal and Comparative Analysis. The book was co-written with Dr. Hilary Delany and published by Round Hall in 2008.

The chapter provides a conceptual analysis of the notion of a right to privacy and serves as an introduction to the general themes that are explored in the remainder of the book in chapters.

The chapter reviews the literature on the difficulties of defining a right to privacy and provides a summary of the work of authors such as Judith Jarvis Thomson, Russell Brown, Warren and Brandeis, Ruth Gavison, Beate Rossler, Nicole Moreham and Daniel Solove.

The chapter argues in favour of an approach in accordance with which the right to privacy is justified as a necessary element of a system which adequately values and protects human autonomy. Privacy is argued, in this regard, to go beyond the simple protection of the secret or confidential so as to include the social dimension of human existence. Protecting privacy encourages the individual to fully engage in this social sphere by facilitating experimentation, intimacy and the development of a sense of individual and social identity.

The chapter then proceeds to consider the differences between privacy as an autonomy value and privacy as a legally enforceable right. It would not be workable for the law to define privacy as anything which engages individual or social identity.

The chapter therefore proposes a tripartite distinction between different types of privacy claim:

• Decisional privacy: This is the entitlement of an individual to make their own decisions. It is argued that this is incoherent as an independent legal right.

• Spatial privacy: This a claim of privacy over a physical space, whether that be territorial privacy or the privacy of the individual’s own body.

• Informational privacy: This is claim of privacy over particular information.

The chapter then considers the extent to which a right to privacy may be regarded as a claim of control over these dimensions. It concludes that control should not be understood in this context as an all-or-nothing entitlement to prevent all access to the area in question. Privacy is a more complex and context-sensitive concept. Thus a right to privacy operates as an entitlement to exercise control over who may access a particular dimension and/or of the use that may legitimately be made of such access. Just what the right involves will depend upon the particular circumstances of the claim.

The chapter concludes by considering the relationship between privacy and freedom of expression. It argues that privacy and freedom of expression are, in many instances, complementary. Protecting privacy may facilitate the individual’s freedom of expression. A conflict will more frequently arise between privacy and the media’s freedom of expression. However, the expression rights of individuals and of the media are different in character and in degree. There is a necessity therefore for a more nuanced and sophisticated understanding of the relationship between privacy and the expression rights of individuals and of the media.

Carolan comments that -

Privacy is a "distinctly contemporary" concept. The notion that individuals enjoy an enforceable entitlement to respect for their private lives is an idea of relatively recent vintage. That the concept of a right to privacy has acquired such contemporary currency is, in large part, attributable to the changed nature of modern society. In contrast to the localised "face-to-face society" of earlier times, we are today living in what Foucault has described as a panoptic society. Technological advances allow access to the previously inaccessible. Modern communications can make images or information about us available to a potential worldwide audience. Information about our beliefs, our habits, our associations and our actions is systematically accumulated by a range of public and non-public bodies. We exist in "a state of conscious and permanent visibility".

Government, media, business organisations and the internet have penetrated our social existence to such an extent that they have colonised and commercialised areas which were previously the preserve of the individual. Our society is becoming a globalised goldfish bowl in which individual space is increasingly scarce. For many commentators, the modern movement towards the protection of privacy rights is a direct reaction to this escalating intrusiveness. It reflects an awareness that "[t]he opportunities for the invasion of privacy are greater [today] than they have ever been".

In many ways, the right to privacy can be seen as the contemporary re-expression of an age-old attachment to the idea of individual freedom. The great Enlightenment authors, from whom we have inherited so many of our legal and political traditions, were primarily concerned with the relationship between the individual and the state.6 Constitutional devices like the separation of powers, the protection of civil and political freedoms, and the independent judicial review of government conduct all aimed to safeguard the citizen against coercive governmental acts. Individual liberty was the philosophical lodestar of these theories.

At that time, the state represented the primary threat to the freedom of the individual. It was unsurprising, therefore, that the political thinkers of the day concentrated on developing constrains on state power. Freedom of speech, of association and of thought functioned as immunities against government action, disabling the sovereign powers of the state. Protecting these zones of individual conduct against governmental interference ensured that they were protected per se. The liberty of the individual was secured by the absence of government action. To an Enlightenment thinker, there was, accordingly, no need for a distinct privacy right.

The traditional focus of liberal democratic theories on the conduct of state institutions is, however, inadequate for two reasons. First, the modern state operates in a more dispersed and decentralised manner than was formerly the case. The interventionist administrative state operates across a range of areas and takes a variety of forms. "Private ordering has been swallowed up government, while government has become in part a species of private ordering ... [T]he government and private spheres are thus melded." Officials exercise power through the making of tertiary rules and discretionary decisions. Libertarian devices which concentrate their efforts solely on the central organs of the state neglect a significant area of government activity.

Secondly, the individual is today susceptible to the exercise of coercive power by a far wider array of public and non-public bodies. The state is no longer the sole repository of coercive power. The actions of a range of organisations potentially impinge upon the freedom of the individual. The risk of public exposure by the media or via the internet can discourage an individual from acting in ways which might attract public reproach. The necessity for health insurance can oblige an individual to disclose private information, undergo tests and refrain from engaging in conduct of which the insurer disapproves. Even the most mundane interactions with non-public institutions may have coercive conduct-shaping effects. Major commercial bodies have the capacity to construct detailed customer profiles, which allows them to incentivise the repetition of past behaviour and thereby discourage individual experimentation. By installing cookies on customers' computers, online retailers can track an individual's browsing and purchasing habits. This allows them to categorise customers according to type and to offer purchasing suggestions based on the actions of other individuals of the 'same' type. The individual is pigeon-holed, homogenised and encouraged to engage in collectively indistinct actions. ... privacy claims retain an intuitive appeal. Most people would agree that privacy is important. Most people also, however, would disagree about what privacy precisely entails. As Post remarked:

Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.

A legal model of privacy protection thus necessarily requires the articulation of a specific conceptual account of privacy. In the absence of a clearly-identified analytical starting-point, a legal privacy right would be incomplete, incoherent, and liable to cause confusion.

... Privacy is a notoriously elastic and equivocal notion. It has a "protean capacity to be all things to all lawyers". Its imprecision as a concept has given rise to extensive academic discussion and debate. A significant proportion of the voluminous literature in this area is dedicated to the preliminary task of defining what privacy is. These discussions have generated heat and light but little unanimity. In fact, "the most notable feature of th[e] literature has been an almost complete absence of agreement concerning both the definition of privacy and the values said to be promoted by the legal protection of privacy". Privacy has been defined in different ways and invoked in support of varying, sometimes even opposing outcomes.

Right of Privacy

It's been a long time coming and, like many proposals for privacy law reform, hasn't arrived quite yet.

The national Minister for Home Affairs has announced that the Government will "seek the views of the public on introducing a right to privacy in Australia".

His media release states that -

A public issues paper will be issued shortly, canvassing the prospect of introducing a statutory cause of action for serious invasions of privacy.

"Right now there is no general right to privacy in Australia, and that means there's no certainty for anyone wanting to sue for an invasion of their privacy," Mr O’Connor said.

"The News of the World scandal and other recent mass breaches of privacy, both at home and abroad, have put the spotlight on whether there should be such a right."

It's a shame that the travails of News Corp and its competitors has been required to elicit action by the Government. No reference to Medvet or other recent Australian incidents, of course.

The Minister's media release goes on -

"This Government strongly believes in the principle of freedom of expression and also the right to privacy. Any changes to our laws will have to strike a balance between the two ideals."

"We know that privacy is a growing concern for everyday Australians – whether it is in our dealings with individuals, businesses, government agencies or the media," he said.

“Privacy is emerging as a defining issue of the modern era, especially as new technology provides more opportunities for communication, but also new challenges to privacy.”

“I’m keen to hear from everyone with a stake in the privacy debate – that includes individuals, businesses and of course the media,” Mr O’Connor said.

The Australian Law Reform Commission’s 2008 report into privacy laws made 295 recommendations for changes to privacy regulation and policy, including a proposal to introduce a statutory cause of action for serious breaches of privacy.

It is important to note that there are laws in place to deal with criminal offending related to privacy breaches, for example the Telecommunications (Interception and Access) Act outlaws phone tapping and other misuse of communications services.

An issues paper will be issued soon and a period of public consultation will follow.

At the moment there is no common law tort of breach of privacy, although the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 185 ALR did not rule out the future development of such a tort.

Various law reform bodies have recommended establishment of a statutory cause of action. The Australian Law Reform Commission's 2008 For Your Information: Australian Privacy Law & Practice (ALRC Report 108) recommended a tort (r 74). The Victorian Law Reform Commission in its 2010 Surveillance in Public Places – Final Report (report 18) 150 and New South Wales Law Reform Commission 2009 Invasion of Privacy (report 120) 4.11 recommended establishment of a tort.

ABC Radio reports -

BRENDAN O'CONNOR: All we've done in this instance is bring those matters forward because we think there needs to be, now, proper debate about whether we've struck the right balance between two very important ideals: the freedom of expression and freedom of the press on one hand, and the right for a private life; the right to privacy.

NAOMI WOODLEY: But the Government already has telephone intercept laws in place, if phone hacking was going on in Australia - and there's no evidence that it has been - there are laws to deal with it. So isn't it a bit dangerous to link this to the News of the World scandal in the UK?

BRENDAN O'CONNOR: Well I think it's created a public expectation that the Government consider these matters. And we're not suggesting that the gross invasions of privacy that have occurred in the United Kingdom in this recent scandal are happening here. And yes, we do have some criminal sanctions in place in order to penalise organisations or people who invade people's privacy in that manner. But there is no general right to privacy in this country.

NAOMI WOODLEY: The Opposition's communications spokesman, Malcolm Turnbull, says the debate about a statutory right to privacy is needed, but it shouldn't be linked to events in the UK.

Turnbull is quoted as commenting, most acutely, that -

We really do need to make sure than any discussion doesn't just become a sort of antipodean rerun of the News of the World inquiries in the UK. This has got to - if we're going to look at privacy we should look right across all media and have an honest debate: how much privacy do we believe we are entitled to and to what extent should that limit the right of the media to free speech and freedom of the media?

Higher powers

One of the delights of teaching undergraduate intellectual property law is the look of incredulity on the face of students when they hear that Australian police forces and other government agencies are held to have infringed copyright rather than serving as examples of best practice.

Micro Focus (US) Inc v State of New South Wales (New South Wales Police Force) [2011] FCA 787 involves action by a software developer against the NSW Police Force, the Police Integrity Commission and NSW Ombudsman regarding alleged infringement of copyright in Micro Focus' ViewNow for Mainframe software program.

Micro Focus and associated parties claim relief against the NSW Ombudsman under s 115(2) of the Copyright Act 1968 (Cth) consisting of -

• an order restraining the NSW Ombudsman from reproducing the whole or a substantial part of ViewNow without a licence
• damages (including additional damages), and
• an account of profits.

Jagot J notes that it must be assumed that -

the NSW Ombudsman, since at least July 2010, has reproduced in material form the whole or a substantial part of one or more versions of ViewNow without any licence from the copyright owner to do so and, thereby, has infringed copyright in those works.

... the NSW Ombudsman and officers of the NSW Ombudsman use ViewNow on their computers to access the computerised records of the New South Wales Police Force relating to all police operational activity – a system known as COPS. The NSW Ombudsman and officers of the NSW Ombudsman use ViewNow for the purpose of exercising functions under Pt 8A of the Police Act 1990 (NSW), which empowers the NSW Ombudsman to investigate complaints against the NSW Police Force and to monitor investigations of the NSW Police Force conducted by the Commissioner of Police (NSW), as well as to keep under scrutiny the systems established within the NSW Police Force for dealing with complaints and to provide special reports to the NSW Parliament on any matter arising in connection with these functions.

The Ombudsman contends that s 35A of the Ombudsman Act 1974 (NSW) provides protection from liability for the alleged infringement, with the consequence that the proceeding cannot be maintained or has no reasonable prospect of success.

That section provides that -

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

Jagot J states that -

It may be accepted, as the NSW Ombudsman submitted, that the office of the Ombudsman is unique, with the Ombudsman exercising extensive powers in the public interest for the purpose of improving public administration and accountability (Ainsworth v The Ombudsman (1988) 17 NSWLR 276 at 283 and Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 367-368).

It may also be accepted that the NSW Ombudsman and officers thereof only use ViewNow for the purpose of exercising functions conferred on the NSW Ombudsman by the Police Act (noting that s 6(8) of the Ombudsman Act provides that the Ombudsman may exercise functions conferred or imposed by the Ombudsman Act or any other Act).

It may further be accepted that use of the ViewNow system provides an effective and efficient means for the NSW Ombudsman and officers thereof to discharge their statutory functions under Pt 8A of the Police Act.

All these matters may be accepted without leading to the conclusion that s 35A of the Ombudsman Act is engaged so as to protect the NSW Ombudsman from liability for infringements of copyright as alleged in this case.

The Court went on to state that -

... the NSW Ombudsman required no statutory authority to install software on the computers used by the Ombudsman or the Ombudsman’s officers. This could be done without any specific legislative authority. In terms of the approach of Callinan J it was no part of the NSW Ombudsman’s functions to copy software onto a computer in breach of copyright.

Although The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 concerned the relationship between two State Acts, the same approach is evident. Spigelman CJ said that s 35A of the Ombudsman Act must be construed purposively. The purpose of the section is to “protect from challenge the substantive conduct of the Ombudsman”, with the consequence that the words "'executing (an) Act' do not necessarily extend to the performance of any statutory function or the exercise of any statutory power" (at [25]). Handley JA construed the words "in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act" as “words of limitation which confine the protection afforded by the section to acts or omissions done or omitted in exercising or refusing to exercise the statutory powers of obtaining information and investigating complaints conferred by the Act" (at [29]).

On either approach the copying of software onto a computer to enable access to the COPS database is outside the scope of s 35A. The act of copying is not "substantive conduct" of the NSW Ombudsman but conduct preliminary or incidental thereto. The act of copying is also not done in the exercise of or refusal to exercise the NSW Ombudsman’s powers of obtaining information or investigating complaints. It is done merely in order to provide the NSW Ombudsman with a method or means of facilitating the exercise of the Ombudsman’s powers of obtaining information or investigating complaints. In this sense, acquiring software is no different from acquiring any tool to assist in the exercise of those powers such as a laptop, a photocopying machine or the like. ...

For these reasons I do not accept the contention of the NSW Ombudsman that s 35A(1) of the Ombudsman Act is engaged in this case. It follows that the requirement for leave under s 35A(2) is also inapplicable. This conclusion also renders moot the applicants’ other answer to the NSW Ombudsman’s notice of motion, that by s 79 of the Judiciary Act s 35A does not apply to this proceeding.

Moreover -

in the present case, it is inappropriate to attempt to resolve the operation of s 79 of the Judiciary Act on an assumed construction of s 35A(1) of the Ombudsman Act which I do not accept and in circumstances which appear to be to be far removed from those which s 35A(1) is intended to cover.

Jagot accordingly held that -

Section 35A(1) of the Ombudsman Act does not protect the NSW Ombudsman from liability in respect of the applicants’ claims in this case. Accordingly, the notice of motion must be dismissed. Costs should follow the event.

It would appear to have been simpler for the Ombudsman to simply pay the licence for the software and implicitly set an example for other NSW agencies.