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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”

Publishers of newspaper internet sites face indefinite liability for defamation actions, Justice Michael McHugh of the Australian High Court warned at a legal conference in Dublin this week (Subs: Thursday June 30).

The normal limitation of one year in the ACT or six years in most other Australian jurisdictions would not apply in the case of internet use of a newspaper site as it did with the paper version, he told a joint conference of the Australian and Irish Bars in Dublin.

He said this was the consequence of the High Court’s decision in the Dow Jones case. It meant that, in the case of the internet, publication took place at the time and place at which the reader downloaded the article, not the date of the original newspaper article.
For example, a download today from a newspaper site of a defamatory article contained in a paper version more than six years old would still be actionable.

Justice McHugh said this would pose a great difficulty on publishers.
He said that the national defamation law being proposed by Attorney-General Philip Ruddock and the counter proposals by the states and territories had not addressed the question.

More generally, he said the fact there were different defamation laws in Australia showed that there was no single objective answer to the question of balancing freedom of speech with reputation.

He thought, however, that the Australian doctrine of the constitutional implied freedom of communication struck the balance better than the US “public figure” test.

In the US defamatory statements about public figures are not actionable unless the person can prove actual malice or reckless indifference to the truth.

Justice McHugh said it was unfair to have one class of citizen with fewer rights than another. The status of the plaintiff had little to do with the public expression of ideas.

In Australia discussion of government and political matters was protected provided the publisher acted reasonably; took steps to verify the truth of the matter; had a reasonable belief in its truth; and was not acted by malice. That test focused on the matter being published, rather than who it was published of.

He thought that the Australian defence was more likely to promote responsible journalism.

However, the US doctrine was appropriate for the US because it arose out of a great social need in the 1960s to stop racist officials in the southern states using libel laws to prevent criticism of their abuse of things like voter-registration laws.

Professor William Binchy of Trinity College, Dublin, told the conference, that reputation should be seen as a human right, not merely as a qualification to the right of freedom of expression.
He said the right to reputation related to other rights because an unjustifiably maligned reputation affected rights to association. It damaged personal relations, work relations and could even imperil life.

Former Brisbane Lord Mayor Jim Soorley sank the boot into the media’s role in city planning and development this week.

He was attacking the Living City project inspired by businessman Terry Snow.

Soorley said of the media: “They do not help in the long run, because hard decisions are about serious, deep consultation and problem resolving, and media, no matter who owns them is about tomorrow’s headlines”.

It shows a complete misunderstanding of the Australian media. Probably no country on earth has a media more interested in the planning and development of cities. The reasons are historic and economic rather than altruistic.

In Australia, the great distances made nationally circulating newspapers impossible until the 1960s when pages could be transmitted electronically for printing in distant cities. But by then the main state-based newspapers were too established to budge.

Newspapers serve state jurisdictions from state capitals where decisions that affect the lives of their readers are made, and they circulate within those jurisdictions.

Added to this is the fact that Australia is one of the most urbanised nations on earth. The main city in each state and territory usually contains a half of more the state’s total population. The single city which is the state or territory’s capital dominates each newspaper’s circulation. It drives the debate upon which newspapers thrive.

The exceptions are The Australian and The Australian Financial Review – both of which have far lower circulations than any of the main papers in the five largest cities.
Continue reading “Forum for Saturday 11 june 2005 two cities”

The Schapelle Corby case has had at least one worthwhile effect. It has drawn attention to the importance of the rule of law and the rights of people accused of criminal offences.
It seems that a lot of people rushing to judgment are thinking: “Gosh what if that was me? What if someone put a wad of dope in my luggage and I was facing life imprisonment?” Continue reading “Shapelle shows importance of rule of law”

Oped for Friday or Monday 20 May 2005 . Ports
By CRISPIN HULL
Deputy Prime Minister John Anderson’s brief reference to Australia’s ports at an industry lunch this/last week (week ending 21 May) was like a stick stirring up an ants’ nest.
The states are ropable.
Anderson said, “We also need to have a single, Australian Government regulator with transparent processes and tight deadlines, because of the ports’ critical importance to our national future.
“The Australian Government has always had the power to make laws for our export ports, under the trade and commerce power in the constitution. We have not needed to use it until now, but I believe that we now have to take action in the national interest.”
The trouble for Anderson and the Federal Government in general is that many of the ports are owned by state governments and all of them are substantially regulated by state legislation.
The states are not likely to give up ownership and power over ports and the income from them very easily.
The states have been taken aback by Anderson announcing publicly that the Federal Government is to take action without first telling them and telling them what sort of action.
The Federal Government has not spelt out the detail of its proposals. Even so it is a remarkable grab for power and it comes at a time of unique political circumstance – a Federal Coalition Government with control of the Senate and every state and territory controlled by Labor.
It means the Government has the power to gets its legislation through exactly as it wants and it can force it on the states without treading on the toes of its own side.
That said, you can understand Anderson’s frustration. The states so often make a hash of the things they administer. But if the Commonwealth asserts power over the ports, it must surely end the myth that the Liberal and National Parties are the parties of states’ rights.
Since at least 1972 they have stood for states rights against the onslaught of centralism which it equated with socialism and meddling state control. They riled against Labor’s use of constitutional inventiveness like the expansion of the foreign-affairs power to enable the central government to get its way in fields such as the environment, discrimination law and unfair dismissal.
Now the Coalition parties federally are using whatever constitutional power they can to pursue their ideological agenda: industrial relations and education. Much the same as Labor, really.
So how will they go with the ports?
The Federal Government says it is concerned about efficiency. Presumably, it is concerned about fees and charges; investment in infrastructure; rules and regulations governing the operation of the ports; and industrial awards applying to them. The last is a separate issue.
The Constitution provides that the Commonwealth Parliament has power to make laws with respect to “trade and commerce with other countries, and among the states”.
It has not been a widely used power because another section of the Constitution provides that trade and commerce among the states shall be “absolutely free”. This has left little room for regulating interstate trade.
The extent of the foreign trade power has been tested and found to be quite broad. For example, a Commonwealth law prohibiting the export of certain minerals has been upheld, even though the intent of the legislation was to end sand mining on Fraser Island as an environmental measure (because there was no local market for the minerals).
A Commonwealth law regulating the standards of meat processing has also been upheld, even though only part of the meat-processing works’ produce was for export.
The states will have a difficult time trying to argue that much of the traffic going through the ports is not connected to foreign trade so the Commonwealth cannot take over the ports.
The High Court has held, for example, that the Commonwealth can regulate a purely NSW airline because its operation affected the safety of interstate and international aviation.
It may well be that if a port is the route of any foreign trade, it will be enough for the Commonwealth to assert power over it even if the vast majority of traffic is local.
Legislation giving the Australian Competition and Consumer Commission power to administer federal legislation and regulations over the operation of ports could most likely be drafted in a way to withstand challenge.
However, that is not the full story. For an efficient waterfront you need new infrastructure and competitive fees. With airports that was done by privatisation. That was easy because the Commonwealth owned the airports and could sell them. It does not own the ports. It cannot easily march on to someone else’s land and start constructing new infrastructure. And it cannot easily tell the states and companies who own the ports how much to charge for use of their land, buildings and materials.
To do so might offend the constitutional prohibition against the Commonwealth acquiring property without giving just compensation.
It is easy enough for the Commonwealth to step in when it is providing something without compulsion: new TAFE colleges or a Year 12 exam. But when you are taking something away – profits from ports, water, electricity and the like, it is a different matter. You are bound to get a legal challenge or at least uncooperative conduct.
In that environment the Commonwealth might be better off not wielding the constitutional stick, but doing what is has done to get greater efficiency in other state utilities – using the fiscal carrot. If the states meet certain port benchmarks, they will get efficiency payments.
The Commonwealth may have the power – constitutionally and in the Senate, but that alone will not make the ports more efficient.
crispin.hull@netspeed.com.au
Ends

Attorney-General Philip Ruddock is asking the states and territories to do his dirty work.
The Commonwealth has already passed laws allowing for the detention of terrorism suspects and witnesses for up to 48 hours. Now Ruddock wants detention for up to 14 days without charge as a means of “stopping further terrorism” or “the destruction of evidence” – a form of preventative detention. Continue reading “AG wants states to do dirty work”

It is a rare day indeed that the Commonwealth does not get its way over a state or territory once it puts its legal and financial mind to it.

So it was out of the ordinary this week for the Commonwealth to submit to South Australia’s efforts to block the national nuclear waste dump proposed near Woomera in that state’s far north. It was so out of the ordinary that you would have to conclude that the Commonwealth was not really trying. There is an election pending, and South Australia has too many marginal seats that might be affected by the Commonwealth forcing the issue on the dump. So why try when you can bow out gracefully on the moral high ground?

Even so, the power of the Commonwealth to acquire land in any of the six states is in such a hiatus that it would be perfectly reasonable for the Commonwealth to put the nuclear waste dump in the ACT. Shock. Horror.

It is worth revisiting last month’s Full Federal Court decision that led to the Commonwealth throwing in the towel.

The judge at first instance found for the Commonwealth, but the Full Court of three judges allowed South Australia’s appeal.

The history goes back to the mid 1980s. The Hawke Government and the states agreed that there should be a single national nuclear waste repository (a better word than “dump” because “dump” indicates throwing out and abandoning, whereas the nuclear repository will be constantly monitored and looked after).
Continue reading “2004_07_july_forum for saturday nuclear waste”

Federal Attorney General Philip Ruddock flexed Commonwealth muscle this week in a worthy cause – uniform defamation laws.

He issued a discussion paper outlining Commonwealth proposals to use the broadcast, corporations and territories powers to pass a nationwide defamation law. Hitherto, the area had largely been seen as one for the states. With a Commonwealth law, the states would be left with only defamation by individuals; all the major media players would be brought within the uniform Commonwealth law.

The madness of the present defamation laws has long been apparent, most markedly in 1973 Justice Russell Fox of the ACT Supreme delivered his judgment in the defamation action brought by Prime Minister John Gorton against the ABC and journalist Maximillian Walsh.

It was over a fleeting comment on a current affairs program suggested that Gorton had ordered a denial to be issued to a story he knew to be true in order to discredit his Defence Minister Malcolm Fraser.

Gorton was no longer Prime Minister by the time the case concluded.

It was standard political stuff that should not have raised an eyebrow in a society that respected freedom of speech. But Australian defamation laws by and large require people to prove the truth of everything they publish at such vast cost in lawyers’ fees that chills even the richest media organisation. That law remains unchanged and its general anti-free-speech approach is likely to remain unchanged for the indefinite future.
Continue reading “2004_03_march_uniform libel laws”