In the High Court - first appeal hearings for 2012

Next week sees the commencement of the 2012 Law Term for the High Court of Australia.

Tuesday, 31 January 2012 kicks off with the Australian Education Union v General Manager Fair Work Australia.  This is essentially a demarcation dispute between two unions, the Australian Principals Federation and the Australian Education Union, which raises an issue of statutory construction (whether section 26A of the Fair Work (Registered Organisations) Act 2009 operates to validate the registration of the APF in circumstances where the Full Federal Court had already determined that the registration was not valid) and an issue of constitutional law (whether, assuming section 26A had that effect, it was an invalid usurpation of or interference with the judicial power of the Commonwealth).  Truly, one for the law nerds.

Wednesday, 1 February 2012 is a taxation case, with the hearing of Commissioner of Taxation of the Commonwealth of Australia v Bargwanna.  The question in this case is whether, in determining an application by a charitable trust for endorsement as an income tax exempt entity, the fact that the application of some of the trust funds is for purposes other than public charitable purposes results in the trust not being entitled to tax exempt status. A related question is what are the factors to be considered in determining an entitlement to that status.

Thursday, 2 February 2012 sees the appeal in ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue, raising issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

Finally, on Friday 3 February 2012 an interesting appeal in Harbour Radio Pty Ltd v Trad.  This defamation case arises out of a rally in Hyde Park following the Cronulla riots in December 2005.  Keysar Trad addressed the rally in the course of which he made various allegations against Radio 2GB including of whipping up fears, that it was racist, that it was a predominant cause of the suffering of many of Australia’s Muslims, and that it ought to have sedition laws applied against it.  This provoked a response by Jason Morrison on Radio 2GB the following day, in a broadcast that a jury found conveyed various defamatory imputations about Trad, including that he incited people to commit acts of violence and to have racist attitudes, he was a disgraceful and dangerous individual, was widely perceived as a pest, and deliberately gave out false information about the Islamic community.  Radio 2GB then relied on various defences, including truth, contextual truth, the “response to attack” qualified privilege at common law, and comment.  They relied upon comments publish by Trad in relation to homosexuality (including that it was analogous to cancer, that homosexuals were no more civilised than dogs and were sub-human, and that lesbianism was little different to shared masturbation), his endorsement of anti-Semitic websites, his defence of comments by Sheikh Hilali suggesting women were responsible for sexual violence by likening them to “uncovered meat”.  It is the upholding of those defences by McLelland J (and their reversal by the Court of Appeal) that gives rise to the appeal.

Further details are available on the High Court’s website.

A review of eBooks from LexisNexis

Shortly before Christmas I realised my long-lost copy of Cross on Evidence would not be returning to my chambers, and so I took advantage of the LexisNexis sale to order a new copy.  I decided to get it bundled with an eBook so I could carry it with me to court on my iPad.  For reasons I am yet to understand, I did the same with Pearce & Geddes Statutory Interpretation in Australia.

I have been underwhelmed by them.

It is not clear to me whether the problem lies with LexisNexis, with the Bluefire Reader software LexisNexis has chosen as its eBook software for the iPad, or both.  But there are problems aplenty.

Let's start with Statutory Interpretation in Australia. This is the how the top of the title page appears.

This is how it appears in portrait mode.

If a publisher can't even format the title page properly, there is something seriously wrong.

Turning to more functional aspects of the book, I was expecting to be able to read it as if it were the hardcopy. At least, I wanted the ability to do so if should I so desire.  But you can't. There is no way to paginate the eBook as it is paginated in the hardcopy. This is what it looks like.

Personally, I find the page markers visually distracting, but perhaps that's just me.  I did try and force it to paginate in the same way as the hardcopy by reducing the font size.  This is where I ran into the next problem. Using the Bluefire Reader settings to make the font size smaller did not change the font size at all. I tried again, and still the font size remained stubbornly the same.  Only the "lorem ipsum" text in the settings dialogue box changed font. I persevered, until this happened:

The footnote marks are hyperlinked, and so tapping on the footnote number takes you to the text of the footnote (not instantly...there is a lag).  The footnotes are in fact endnotes, and so the context is lost when you go to the text of the note.  There is no "back" button, and returning to the main text is achieved by tapping on the footnote number.

The absence of a  "back" button is not a difficulty with footnotes.  But it is a massive headache for other parts of the book that are hyperlinked.  For example, the table of cases at the front of the eBook has hyperlinks to take you to the passage of the book where the case is referred to.  However, there is no way of getting back whence you came, other than by going back to the table of contents and starting again. Quite frankly, that is bonkers.

It becomes even more bonkers when you click on a hyperlink in one part of the text that then takes you to another part of the text.  Unless you remember where you were in the book before you tapped the hyperlink, there is no way of getting back. None.  At least none that I could see, and none referred to in the user guide.

The Bluefire Reader allows you to copy text, but pasting it seems to lose the formatting, an irritation if the text includes case names that are italicised.

It allows you to select text and create a bookmark.  The selected text then appears yellow.  Somewhat laboriously, you cannot tap the highlighted text to pull up the notes attached to the bookmark. You have to go out of the book to the list of bookmarks, then find the relevant bookmark to read the notes. The bookmarks cannot be tagged, and the notes are not searchable. This is a serious limitation on what ought to be a useful function.

Finally, one thing you can't do, despite the permissions on the eBook allowing you to, is print. You can't print from this book on the iPad, and instead have to copy and paste into another program and print from there.

Now to Cross on Evidence. This is what page one (and part of page two...this book has the same problem in not being able to read it as if it were the text) looked like.

Seriously, what is going on here? For some reason LexisNexis has decided to publish this text in a sans serif font.  Yes, you can go into the settings and turn off the publisher's formatting and then set the font yourself. But why change the default font from that used in the hardcopy? At least in this eBook the settings function that allows for a change in font size worked

You may notice that the text itself has some serious issues.  Firstly, can you see the word "inadmissibleat" and "ayear"? The absence of a space so words run into each other is not isolated.  There were three examples in the first three paragraphs.  It goes the other way as well, with "climacter ic" appearing instead of "climacteric".

Footnotes work in the same way.  However, for some reason they are formatted in a way that increases the linespacing where they appear, creating a visual awkwardness that cannot assist in reading the text.  I also noticed an issue with this book that I did not experience with the other, and that is frequently, tapping on the footnote number to return to the main text in fact resulted in the book turning to the preceding page. The footnote marks themselves were often more difficult to tap precisely enough for the hyperlink to activate.

Within the text and in the footnotes for some reason case names, legislation and latin phrases were mostly, although not always, not italicised. 

The same issues in relation to hyperlinking within the text appear in Cross on Evidence as in Statutory Interpretation in Australia.  But not all of the internal cross-references were hyperlinked: again, there appeared neither rhyme nor reason for why some were and some were not.

All in all, I was underwhelmed by the eBook implementation of both texts on the iPad, with serious flaws in the formatting of the text (presumably by LexisNexis) and serious limitations in the Bluefire Reader software. Sorry LexisNexis, but these are not worth the outrageous prices you're charging.

A different perspective on SOPA/PIPA

I have not had the time to comprehensively demolish the more hysterical aspects of the criticism being levelled at SOPA/PIPA.  I have read the proposed bills, and they are far from perfect.  But they are far from warranting much of what has been said about them.

Without endorsement, and in the absence of an opportunity to write my own response to the critics of SOPA/PIPA, I simply offer this comment from Thomas Carpenter form the American Federation of TV & Radio Artists.

The misinformation about this bill is akin to "WMDs in Iraq." The more you repeat the lies, and the louder you shout, the more people start to believe them. The content industries employ millions of people, many of whom have good-paying middle-class union jobs, and it's one of the few industries where the US actually has a trade surplus. But law enforcement doesn't have the same tools available to stop the trafficking of stolen content abroad, that they have stateside. This legislation would fix that.



An important provision of the Stop Online Piracy Act and PROTECT IP Act allows only the Department of Justice to go to federal court to obtain an order for a search engine to stop linking to a foreign criminal website. Then—and only if ordered by a judge—will search engines simply be required not to return search results that include links to a specified foreign rogue site.



Removing foreign criminal websites from search results is crucial to preventing their access to the American market. Search engines serve as the portal to foreign criminal websites. Anyone looking for free movies or illegal prescription drugs can find them within seconds on search engines like Google. Even U.S. consumers seeking legitimate products or content are often unwittingly directed to criminal sites through the results provided by search engines, which was highlighted in a 2010 study by McAfee regarding the risks associated with visiting piracy sites. Requiring search engines not to direct users to these criminal websites will help protect consumers and preserve the marketplace for legitimate American companies, whose products and creative works today are often buried in search results below those for rogue sites.



Companies opposed to the legislation that rely on search engines for much of their revenue, especially Google, have objected to the provisions requiring them not to direct users to foreign sites found to be illegal by a federal court. First, they argue that such requirements would be ineffective because users would find alternate ways to find rogue websites. But this argument cannot withstand scrutiny. In fact, a frequently noted conventional wisdom among many in the Internet community is that if a website is not listed on the first or second page of Google search results, it simply “does not exist.” Consumers use search engines to find products they want. If the foreign criminal websites, which often appear legitimate, are no longer listed, then consumers will be much more likely to visit safe, legitimate websites and purchase goods from law-abiding American companies. Of course, no single tactic is 100% effective and some dedicated users will still find their way to free stolen content. But, as with all crime, just because it cannot be completely eradicated does not mean we should abandon the fight.



Second, companies opposed to the bills claim that court orders not to link to websites, even if they are engaged in wholesale illegal activity, constitute “censorship.” However, this ignores the fact that Google and other search engines already alter their search results every day, with no effect on free speech. In fact, Google boasts that through November 2011 they “have processed takedown notices for nearly 5 million items,” all without a court order in response to DMCA notices from copyright owners or requests from trademark holders. To argue that it would be “censorship” to engage in similar action for foreign websites, where there exists the additional safeguard of a federal judge determining whether the entire site is illegal and thus subject to an order, is without merit. Google makes more decisions about website and search blocking than any other company or country in the world, and free speech has not suffered from existing compliance with search result takedown notices.



Congress needs to act now on these bills. The failure to pass meaningful legislation will result in overseas websites continuing to be a safe haven for criminals stealing and profiting from American creativity. As the Obama Administration stated on January 14, "Online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs."

When is a crime not a crime? When it's a breach of bail

The Sunday Telegraph spectacularly announced yesterday that the “Crime rate on bail is soaring in NSW according to new data.”

Except, it is not.

The data being referred to is the data freely-available on the website of the NSW Bureau of Crime Statistics and Research (BOCSAR).  What that data shows, in summary, is that the number of breach of bail conditions has increased from 26,278 in the 12 month period to September 2010 up to 31,002 in the 12 month period to September 2011.

There are numerous problems with the article, beginning with the headline.  The statistics do not record an increase in the rate of crime committed by persons who are on bail.  They record an increase in the number of breaches of bail conditions that have occurred.  The first point to note is that breaching a bail condition is not a crime.  The only relevant offence is failing to appear in accordance with a bail undertaking. Breaching a bail condition renders you liable to arrest, but only for the purposes of bringing you before the court for reconsideration of your bail status. And so an increase in the number of breach of bail conditions says nothing about an increase in crime.

Still less does it say anything about an increase in the crime rate…a change in the rate could only be determined by knowing how many people were on bail during the relevant periods being compared, a matter about which the article provides data for person subject to bail conditions at the time their matter was finalized, and then only for the 2010 year. It is far from clear that even that number is a relevant one for the purposes of determining an increase in the rate (the relevant number would seem to be the number of people subject to a bail condition at any time during the relevant 12 month period).

But I digress: the headline is hopelessly misleading.

The article is worse.

The first paragraph asserts that “Not even the threat of lengthy jail time is enough to deter them with the number of breaches soaring by almost 20 per cent in the past 24 months.” As noted above, breaching bail conditions is not a crime, and so there is no “lengthy jail [sic – read “gaol”] time” that poses a threat.  At worst the existing bail could be revoked and further bail refused.  Sensationalism is the only excuse for writing “almost 20%” instead of just saying “18%”.  Somewhat ironically, the increase that was recorded is over a 12 month period, not a 24 month period as reported…surely that’s MUCH more spectacular.  A course in statistics would pay handsomely for Sunday Telegraph journalists.

The second paragraph suffers from an odious failure to identify the so-called experts who proffered a view on the reason for the increase in breaches of bail conditions. If it is Don Weatherburn, subsequently referred to in the article, then why not say so.  And if there are others (implied by the use of the plural) who are they and how are they qualified to comment?  Is it the “spokesman for acting NSW Attorney-General Chris Hartcher” later referred to?

The third paragraph repeats the sins of the headline in even more egregious fashion,   which makes it difficult to blame the sub-editor. It is simply lazy, ill-researched reporting.  It is internally inconsistent, referring initially to a surge in “breach of bail offences”, but then to the number of “charges laid against offenders who committed further crimes while on bail.” It bears repeating that both these statements are wrong: there is no offence for breaching bail; and the statistics say nothing about the commission of “further crimes” while on bail.

The fourth paragraph repeats the sin of referring to “charges” for “breach of bail offences”.

The sixth paragraph asserts: “The offences committed on bail ranged from serious violent crimes to small breaches, including not reporting to police at a designated time or breaking a court ordered curfew.”  This is curious, because the statistics available on the website don’t show that at all, and BOCSAR informs me that this data is provided by the NSW Police and from that data it is not possible “to characterise the nature of these breach of bail incidents nor whether they were committed in conjunction with a further offence.”

Then, at long last, we get an explanation of the increase from Don Weatherburn, crime statistics guru.  What is interesting about this explanation for the increase in the statistic is that it is not related to an increase in criminality, or the wrong people being given bail…it is simply a result of changes to the application of the law by Courts which result in a larger number of people having conditions attached to their bail, and changes to the policing of bail conditions. 

Who’d have thought!!!