Crispin Hull

Finding cases are a treasurer trove of legal issues. The dispute over the treasure trove found in a Perth garden proves the point.

Non-lawyers usually seek a simple answer. Is it finders keepers? Who gets the treasure?

In Perth, a gardener, Cliff Anderson, uncovered $19,000 in cash when dig the rose garden. The house-owners Eunice and Joseph Borges are claiming finders keepers. The previous owners, the Konior family, say the stash is part of the money their widowed Russian mother, Anna, stashed away for hard times. She died suddenly in 1997. Her three children searched for the stash, but eventually sold the house and split the proceeds. They reported the matter to the police and the Director of Public Prosecutions.
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The Australian people appear to be having a silent referendum on the Government’s digital television legislation. The vote is an overwhelming No.

The huge No vote and tiny Yes vote of about 15,000 households in the whole country appears to be making the Government crack. The Sydney Morning Herald reported this week that a Cabinet submission had been prepared recommending the present rules be changed to something sensible. All queries to the Minister’s office asking to confirm or deny were stonewalled. The Government would make an announcement in due course, the Minister, Senator Richard Alston, said.
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A dancer whose performance was described by The Canberra Times dance reviewer Michelle Potter as “”the most undancerly dance performance I have ever had to review” lost her appeal yesterday in a defamation action.

Three judges of the NSW Court of Appeal unanimously rejected her appeal against a jury verdict last year that the review was not defamatory.

The review of a dance by Vimala Sarma at Hawker College on April 30, 2000, said, “”Sarma has very little sense of rhythm in her body. Not only does she not move with the music, not frequently anyway, nor does she seem able to co-ordinate the various parts of her body so that they all move rhythmically together”.

The jury found that the imputation that Ms Sarma “”as a dancer is incompetent as a dancer performer” was conveyed by the newspaper but was not defamatory of her.
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The United States Supreme Court makes it difficult sometimes for those who argue for a Bill of Rights. This week the court ruled that the national Child Pornography Prevention Act of 1996 was invalid because it offended the First Amendment. The First Amendment says that Congress shall make no laws that abridge freedom of speech. It was agreed to shortly after the US came into being in 1776 is one of 10 amendments that form the US Bill of Rights.

Congress’s law prohibited virtual porn – that is images of children engaged in sexual acts created from artwork and other computer generated work that did not involve the use of live children. The Supreme Court ruled the law did not fit the usually acceptable exception to freedom of speech that protected the interests of children, because no children need be used and exploited in the production of virtual imagery. The court said that Congress could prohibit obscene material, but this law went beyond banning just the obscene; it also prohibited non-obscene expressions – for example, a film with redeeming social values that discussed the idea of child pornography. In short, Congress’s law was too sweeping.
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The Catholic Church is racing against time with stem cell research.

While there is a fair degree of ignorance about it, the church is in with a chance of getting the total ban it wants imposed by the Federal Government. But once more knowledge gets into the community and researchers, either here or elsewhere, get some worthwhile results, its chance of getting a ban will be reduced.

Catholic bishops have called for a nationwide ban on any stem cell research that would destroy human embryos. The House of Representatives Committee on legal and Constitutional Affairs reported on human cloning and stem-cell research in August last year and was divided. The Government is yet to respond, though the Minister responsible, Kevin Andrews, has addressed Cabinet on it.
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If it sounds to good to be true, then it probably is.

In the past two days, the pay television industry has been touting a win-win-win deal.

The two big contenders Optus and Foxtel have done a deal. They say it is good for both of them and good for the consumer and good for Australia.

The Foxtel partners are Telstra, Rupert Murdoch’s News Corp and Kerry Packer’s Publishing and Broadcasting. Optus is owned by SingTel, in turn controlled by the Singapore Government.
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It is fairly sobering that a renewed debate should break out on the Easter weekend about automotive advertising.

The Federal Chamber of Automotive Industry wants to conduct further consumer research into whether there should be restrictions on car advertisements that show excessive speed and aggressive driving.

The chamber and others have argued that there is little harm in the hyperbolic advertisements that show young drivers accelerating violently, speeding and generally putting cars through their paces.
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Yesterday’s conference on public liability insurance saw a lot of finger pointing and blame shifting. But it also saw a number of suggested solutions to the problem – some of which should be treated with a great deal of caution.

The evidence is clear that premiums for public-liability insurance have increased dramatically in the past year. Small business, charity and community groups and sporting organisations have been hit with increases of sometimes more than 100 per cent.

Less clear is the reason for the increases. Insurance companies say that the number and cost of claims has gone up due to increasing litigiousness and lawyers advertising. They also cite the collapse of HIH insurance and the September 11 attacks of the World Trade Center and the Pentagon. This blame throwing has to be taken with a grain of salt. There is little evidence of a sudden upsurge in claims to warrant the sort of premium increases that small organisations are citing. The collapse of HIH has been a factor, but not for the reasons cited by the Insurance industry. HIH was pricing unsustainably low, and now the insurance industry wants to catch up on profits lost in the past.
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Whenever the Liberal Party is out of power – either and federal or state level – its members have a habit of changing parliamentary leaders, usually in ambush coups.

And so it was on Monday that the Opposition Liberal Leader in NSW, Kerry Chikarovski, was ambushed on Monday. She was tapped on the shoulder by a group of younger, less conservative, MPs who told her that her leadership would be challenged by John Brogden, who will turn 33 on Thursday, the day the vote on the challenge takes place.

The extraordinary element of the ambush was its embarrassing timing. The state party’s annual council was held on Sunday. And at that meeting Prime Minister John Howard went out of his was to praise Mrs Chikarovski as the person to become the next Premier of NSW – to the usual hoop-la that accompanies such endorsements. He said that Mrs Chikarovski had the support of all the Federal Liberal MPs and that no election was unwinnable or unloseable, so Mrs Chikarovski could win with a steady release of policy in the year up to the election.
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The Act Government seems to be facing a grim choice: reneging on election promises or job reductions in the public service or going into deficit.

Treasurer Ted Quinlan has asked all public service sections to make a 2 per cent efficiency gain. Any section that cannot would have to explain why. This marginally better than the salami slicing of the 1990s where every public service department took a cut, irrespective of the merits of their spending programs. But it is no substitute for looking harder at some areas of government funding to see if they can be cut out altogether so a greater concentration of effort can be made on the key areas of government activity that concern most Canberrans: health, education and police.

The question confronting Mr Quinlan is, what happens when a large number of public-service sections have “”good grounds” for not achieving a 2 per cent efficiency? Unfortunately, the large areas – education and health – are the easy targets for insisting on the efficiency dividend. And then Labor would be driven to giving with the left hand – an election promise of $27 million of education – and taking away with the right hand – a $7 million cut to education, or promising 20 new police officers before the election and taking away 16 officers through an efficiency drive. This much was pointed out by Deputy Opposition Leader Brendan Smyth.
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