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The Chief Justice of the High Court, Murray Gleeson, was bemoaning regulatory overload this week. He cited the Corporations Law, which had increased tenfold in the past 20 years. My guess is the volume of various taxation Acts would have gone up perhaps twenty-fold in that time.

”We have a constant problem in the High Court, for example, with identifying the statute that’s relevant to the case that we have to decide because these statutes are amended so often,” Gleeson said. ”If you compare the amount of legislative output of a modern parliament with the legislative output of 100 or 50 years ago, the change is extraordinary.” Continue reading “Forum for Saturday 31 march 2007 Swamped by law”

The Government has done nothing about the management of its $7 billion worth of intellectual property despite being warned about the neglect three years ago, the Australian National Audit Office says in its latest report.

The Audit Office recommended three years ago that the Commonwealth produce a whole-of-government policy statement and management guidelines. It said the task should be led by Attorney-General’s, Finance and the Department of Communications Information Technology and the Arts. The departments agreed.

Intellectual property is intangible property like computer software (about half the $7 billion), medical and scientific inventions, copyright in documents, logos and designs.

Three years after the 2004 recommendations, the Audit Office said in a report to Parliament tabled last week, “By December 2006, the overarching approach and guidance on IP management was not finalised. . . . It is still not clear when either the IP Principles or the IP Manual can be expected to be finalised or released.”

This is despite a joint parliamentary committee agreeing on the recommendations of the 2004 report and setting a deadline of May 2006.

The Audit Office said that many agencies had done nothing because they were waiting for the whole-of-government statements.

It said without proper management there was a danger the property could be lost, stolen or not used to best advantage either in revenue or in proper public use.

By CRISPIN HULL

Lawyers should lift their game and abandon expensive overseas conferences and stop abusing professional privilege, according to the shadow attorney-general, Nicola Roxon.

She said also that barristers’ immunity from being sued for negligence, recently upheld by the High Court, should be abandoned.

She told the inaugural Australian Women Lawyers conference in Sydney yesterday (Friday 29 September) that incidences of “lawyers behaving badly” were not symptomatic of the whole profession but they could not be dismissed as on-offs.

She cited a legal education conference in a US ski resort and a two-day conference in Prato, Italy, on the cost of justice with the conference dinner in a palace.

She cited lawyers’ roles in the $5.3 billion HIH collapse and the concealment of documents in the AWB and tobacco cases and the failure of some barristers to pay tax.

She accused public-sector lawyers of behaving badly in serving their departments and ministers rather than the public through obstruction in freedom-of-information cases, over-vigilant pursuit of welfare and refugee cases and coming up with the Pacific solution.

It did not help that at the head of the legal profession Attorney-General Philip Ruddock was prepared to use people’s fears for political purposes by suggesting the recent Western Australian native title case would prevent access to Perth beaches and parks and by linking David Hicks’s case to the recently drawn out NSW rape cases.

She said that she would defend the courts and not take part in under-mining them if she were Attorney-General.

Ms Roxon said that lawyers behaving badly threatened to undermine the much greater good that the legal profession did. She cited the huge amount of pro bono (free) work done for those who could not afford it. She also cited the good done by legal professional bodies in standing up for human rights. She said the great majority of the profession worked well, but was being let down.

Middle Australia thought of the legal profession as being only for the very rich or very poor; too costly and too riddled with delay.

This threatened confidence in the courts.

“There is a public good in peaceful and just resolution of disputes,” she said.

Ultimately, if people’s views of the legal profession and the legal system did not improve it would undermine the rule of law and threaten “our peaceful, stable and prosperous society”.

She said the immunity for barristers undermined confidence in the system. Its message was: “We have special rules. If you are negligent we will sue you, but if we are negligent you cannot sue us”.

She thought that legislation should be passed to overrule the immunity after debate among the professional bodies.

She called on lawyers to do more pro bono work; do more work with non-government organisations; speak out against abuse of professional privilege and support alternative dispute resolution.

Women lawyers had to act together to look after themselves in the face of inequality, according to former High Court judge Mary Gaudron.
“While ever men gather in private clubs, where women are excluded, and there discuss future appointments [to the judiciary] and their prodgeny, women have got to work together to look out for themselves because they are looking after themselves over lunches at the Australia Club,” she told the inaugural Australian Women Lawyers conference in Sydney yesterday (Friday 29 September). Continue reading “Stick together, woman ex-judge says”

Home-owners have been hit hard by the Budget – more than $450 a year on average.
Rates go up by more than usual and three new charges have been imposed on property owners. Continue reading “Homeowners hit by budget”

Jon Stanhope is in it for the long haul.
This is why he went now for a Budget that is tough – or in ministerial words one that is “economically responsible”.
Several factors allowed him to be tough – a-dollar-a-day tough, or more than $450 per home-owner if you add the utilities charge that will inevitably be passed on by ActewAGL, Transact and Telstra.
Politically, he is more than two years out from and election and the Opposition is in disarray. Continue reading “Long-haul Budget”

The Commonwealth Government could get itself into a constitutional bind over same-sex unions, if the attitude it displayed last week is any guide.

We have to accept that the Commonwealth can do what it likes in the ACT. It can over-ride any legislation passed by the ACT Legislative Assembly. This is because the Constitution gives the Commonwealth power to make laws with respect to the Territories. Continue reading “Feds have no power over same-sex unions”

The black ball usually applies to clubs. In many, a single black ball cast in a ballot would be enough to exclude a prospective new member.

The equivalent of the black ball is still around in unit (or strata) title legislation. Its effect came to light in the ACT Magistrates Court last week.

The legislation enables just one unit holder to veto proposals that might affect the common property. No reasons have to be given.

And in NSW the redevelopment plans of majorities in some old blocks of units are being blocked by single or small minorities. This week the NSW Property Council urged some changes.

The ACT case was about the request of a unit owner in O’Connor to install a split system air-conditioner. The unit owner’s daughter who has a chronic pain complaint lives in the unit. Even temperatures help her complaint. Some of the drugs she takes for her condition require her to avoid very cold or very hot conditions.

But the air-conditioner would have required a box to be placed outside, on the common property. Under the Unit Titles Act any use of any common property for the use of one unit holder requires an “unopposed” resolution. It means any single unit owner in the block can block the proposal.

Incidentally, in the ACT unit title can apply to single level developments with as few as two units. About 40,000 people live under unit title in the ACT.

The unit owner appealed to the Magistrates Court.

Magistrate John Burns held that the legislation did not allow for a review on the merits or on the reasonableness of the objection.

The only ground for reversing an opposed proposal is if “the proposal is in the objective best interests of all the unit holders”. It means that the court would have to find that the unit owner blocking the proposal had voted against their own best interests. On that reasoning it might require that the opposing unit holder was – at least in economic terms – off the planet. The magistrate did not hold that in this case.

Indeed. We will never know why the air-conditioning system was opposed. The opposing postal ballots were kept secret by the executive committee on the grounds of privacy. That, of course, meant it was not possible for the air-conditioning proponents to approach the opponents to persuade them to change their minds. So the case went to court with the proponents suing the body corporate.

Overall, the legislation tries to avoid a tyranny of the majority by requiring more than simple majorities for certain actions.

For example, unanimous resolutions (everyone actively agreeing) are required to sell the whole block as a single property. Unopposed resolutions (no-one actively disagreeing) are required for changes to the common property. Special resolutions (two-thirds majority) are required for large purchases of equipment or changes to rules on pets, plants and noise.

It may be that the legislation in the ACT and NSW has gone too far in protecting individual unit owners.

On the other hand, you could argue that an individual unit owner has property rights which should be enforced. One unit holder in a block of say 20 might like the old architecture, the local amenity and simple not want to move. Why should they be forced to sell to a developer just because the other 19 want to make a buck?

Why should a unit holder surrender the use of even a square metre of common property for an air-conditioning unit? That was the entitlement they paid for. No-one is obliged to be kind or generous. They might even have an environmental objection to air-conditioning. But bear in mind it could have been a proposal for a rain-water tank or solar panel.

That said, the unit title legislation must attempt balance between competing interests and enable people to live in harmony – given that they often are living literally on top of each other.

It should encourage more negotiation. Court cases have to be paid for by all unit owners.

The black ball may longer be appropriate, especially in larger blocks where one voter is a very small minority. A two-thirds or three-quarters vote might be better, or even a sliding scale depending on the number of units in a block.

Even some of those English gentlemen’s clubs required more than one black ball to oust a prospective member one the total voting reached a certain number.

And in corporations law, from which unit title developed, someone obtaining 90 per cent of the shares can compulsorily force the holder or holders of the remaining 10 per cent to sell.

The economic argument is that it benefits society as a whole for land to put to most efficient use, so the wishes of one person holding out against redevelopment should give way.

In any event, last week’s ACT case and the NSW experience reveals defects in the legislation. It has not taken care of someone holding out against the demolition of old, badly designed, energy-inefficient blocks nor the situation where some unit holders want to install new technology – and it could be solar hot water, photovoltaic cells or rain-water tanks as equally as air-conditioning.

At present one unit holder can cast the black ball.

After more than 25 years of argument and false starts, Australia is to get uniform defamation laws.

Alas, they will be uniformly unsatisfactory.

The new law was introduced into the ACT Legislative Assembly yesterday. Similar legislation will be introduced in all other states and territories.

Chief Minister Jon Stanhope and other state and territory leaders had no choice. If they failed to enact uniform laws, the Federal Government threatened to introduce its own law which was much less conducive of free speech.

The new law has major advantages over existing law, but in the case of the ACT, it takes away a defence and a better way of looking at defamation.

First to the good points. Under the new law, corporations will no longer be able to sue for defamation. This makes obvious sense. Companies do not have a character reputation, but a commercial one. Therefore, they should seek remedies in trade practices law for actual commercial damage.

Secondly, damages for general loss of reputation will be capped at $250,000. That will be fine provided the courts accept, first, that that amount is only for the very worse cases – false accusations of major crime, for example, and, second, that defamation asserting a person was not very good at their job would attract much lower damages.

Thirdly, wider protection is given for reportage of public proceedings and documents.

Fourthly, uniform law will mean an end to forum-shopping where plaintiffs would take their action in the jurisdiction that best suited their case. For a long time the ACT suffered because plaintiffs like this jurisdiction. The ACT Supreme Court has a history of rarely finding for media defendants. Other jurisdictions have juries and juries do not especially like politicians, professionals, public servants. So these people come to the ACT. Increasing our costs.

But that difficulty has been largely overcome since the ACT introduced a one-year statute of limitations, instead of six years and since judges gained wider power to remove cases to more appropriate jurisdictions. In all, the ACT Supreme Court has had only half a dozen defamation cases in the past five years – though half of them were not local.

Now to the not-so-good point.

For most of the 25-year debate, politicians have made much of the “public interest” test.

In defamation law, some states allowed a defence of truth alone. That was the old common-law test inherited from England. Other states required an additional test that the publication had to be in the public interest, or for public benefit, or be about a matter of public interest.

The states roughly divide according to their convict heritage. Those with a big convict past usually have a public interest requirement – the politicians who legislated to change the common law thought it would be a good idea to make it more difficult for the grubby press to dig up and publish long past convict backgrounds.

Anyway nothing much turns on it now. The courts give a wide meaning to public interest so it is an easy hurdle for a publisher to get over. I have only ever come across one case where a publisher proved truth but did not show public interest.

The big problem, however, remains: truth.

With few exceptions, under the new law, truth remains the core defence. It sounds reasonable. Why shouldn’t you have to prove the truth of everything you publish? The trouble is that, under our evidence laws, it is extremely difficult and costly to prove truth.

Moreover, under defamation law, the publisher is required to prove the truth not of what is published but of whatever defamatory imputations that the defendant can extract from the publication. Thus, for example, an accurate description of a company director leaving the country on the day the company goes bust might carry the defamatory imputation that the director was guilty of some wrong-doing and fleeing the scene.

Extracting imputations is a high legal art form which adds cost and delay. The onus is too high, so publishers are cowed into silence. They give up on investigative journalism.

It would have been better if the new uniform law had improved on the ACT’s “no-negligence” defence.

Under the new law, a journalist can be given a lot of information, have very good grounds for believing it to be true and honestly believe it to be true. The journalist can go to the alleged wrong-doer and put the allegations. The alleged wrong-doer can say, “Publish and I’ll sue.” If it turns out that the publisher cannot get enough admissible evidence together, the plaintiff will get damages – often for a publication that was most likely true.

The effect of this is that bad journalism gets a cover: “We were right but we just could not prove it because of the strict evidence laws.”

If, on the other hand, we had a defence of reasonable belief in the truth of what was published, good journalism would be rewarded and the public would get better information. Bad journalism would be exposed for sloppiness, negligence, failure to get the other side’s view, or reckless publication in the face of reasonable explanation or denial.

In short, defamation law should look more at the behaviour of the publisher – whether matters have been put to a person before publication and the person given a fair chance to respond, and having got the response whether the publisher still has reasonable grounds to believe the truth of what is published.

Defamation law’s search for the elusive truth is too costly. Worse, it is frightening off good journalism which is being replaced with too much inconsequential rubbish in the media.

The idea of a “war on terror” and the Australian response to it was condemned at the weekend (July 1-2) by the Irish Minister for Justice and two leading barristers, one Irish and one Australian.

The Irish Minister, Michael McDowell, told a joint conference of the Australian and Irish Bars at Dublin Castle that it was dangerous to compromise standards of the rule of law in order to protect the rule of law. Continue reading “War on terror label condemned”