Monthly Archives: September 2010

Punishing lawyers who do the job properly

My initial reaction to the news that Victoria Legal Aid will be changing its rates to a “whole of job” structure was not particularly positive.

It will reward legal practitioners who apply pressure to their clients to plead guilty and resolve the matter quickly, whilst punishing those who vigorously defend their clients from allegations of crimes of which they are not guilty. Those who successfully advise their clients to plead up and get it over with, straight away, will do better than they do now. Those who assess the evidence more critically, and who successfully advise their clients to defend themselves properly will find themselves doing appearances effectively for free.

In the real world, despite the commitment to their duty as responsible officers of the court that is the hallmark of the vast majority of the profession, it seems to me that this proposed system will make it more likely that the innocent will pressured into pleading guilty. That our jail population will expand with residents who should never have been placed there.

And why? In order to save the taxpayer a few dollars. Well, a few dollars from the VLA fund – if more people are getting locked up, the taxpayer will just have to spend that money (probably more) on prisons instead, so it’s not really a saving. More a transfer of money from one area of the Department of Justice to the next.

But, even if it was going to save some money – isn’t the point of our legal system to achieve, as best we can, some form of justice? How is making it harder for those charged with crimes to defend themselves supposed to do anything but make a just result less likely?

When will we enter this glorious new world?

An implementation date for the new fee structure of 1 January 2011 has been set. There are likely to be further discussions before the final model is implemented. The Law Institute isn’t happy about the proposed changes, and after a couple of years of behind-the-scenes negotiation is starting to voice its dissatisfaction publicly.

I wish them luck with that. Sadly, coming at the end of a long review, I can’t see the Government resiling from this fundamentally broken approach.

ELSEWHERE: The copyright industry overseas, where lawyers don’t mind being dodgy.

Would you travel to a country where the basic legal protections do not exist?

Would you travel to a part of the world where you know that the authorities have the power to imprison you without a legitimate charge and deny you a fair trial? How about one where they have the death penalty, and it is fairly obvious that they have in the recent past executed innocent people? Or would you feel confident that you could avoid accidentally annoying such a government – if you witnessed some kind of atrocity, say, you could be relied on to leave the country quietly without making a fuss – and would personally be safe enough as a tourist, doing touristy things and turning a blind eye to whatever outrages you might encounter?

I’m certainly not so keen to do so – which is unfortunate, because that rules out an awful lot of the planet.


This would be great to see – if I had any confidence in the legal protections in the country that contains it.

And, to be fair, it’s also not much of a solution in the long run if everyone just stays home and leaves those stuck living under tyrants to suffer out of sight. That approach doesn’t do much for the cause of change, of reform, either.

So I definitely have the utmost respect for people who go to countries with autocratic regimes that do not respect the rule of law – and that’s a broad list: my definition of “do not respect the rule of law” includes any country where you can be imprisoned, or worse, by the state without a fair trial, because that’s really all unchecked executive power needs to destroy anyone it chooses – in order to assist the cause of change; to help the people such governments have deliberately abandoned and oppressed. To do all this despite knowing their own personal safety is in danger, and taking that risk for a positive purpose.

But I’m not convinced just tottering along as a tourist, looking at the tourist sites, being careful not to look behind the curtain, is all that constructive – and that the risk of something terrible happening with no recourse, a risk which you can never really remove no matter how craven you’re prepared to be, is really worth it.

Not that I’m particularly desperate to go to New Zealand again, either.

ELSEWHERE: Iran jails a blogger for 19 and a half years for daring to criticise the regime. Oh, sorry – “cooperating with hostile states“, “propaganda against the system”, “propaganda in favour of counter-revolutionary groups, “insults to the holy sanctities”, and “the set-up and management of vulgar and obscene websites”. I suppose, given he’s not being murdered by the state, they think they’ve treated him somewhat leniently.

Channel 7 vs Media Watch: hey, we’re only guilty of some of your allegations of dodginess!

If you watched this story on Monday night’s Media Watch about Channel Seven’s “expose” on security at the Delhi Commonwealth Games, you might have concluded that reporter Mr Duffy has some real questions to answer:

So what strikes me as particularly interesting about the unusual and extraordinary step that he and Channel 7 are taking in response, that of actually suing Media Watch for defamation, is the noticeably limited portion of the allegations that they’re apparently disputing:

But Seven has hit back, defending Duffy’s story, saying he was in possession of a full remote detonation kit for 24 hours and that he did walk into a secure area with a case containing detonation components.

I suggest rewatching the ABC video and noting all the allegations that Seven’s defence notably ignores. Assuming that The Australian‘s report is complete, that seems to me to be fairly obvious admission by omission – and hardly leaves them looking like a competent, reliable news organisation. Frankly, it makes them look like tricky, disingenuous charlatans.

Meanwhile, check out the glass jaws:

Seven took the unusual step yesterday of sending a legal letter to other media outlets warning them not to repeat Media Watch’s allegations — although that did not stop the Nine Network from following up the story last night on A Current Affair.

It’s a funny old area, defamation – you need to strike while the iron’s hot, but that’s also a less than ideal time to be making good, sensible decisions on the overall advisability of legal action. Particularly in public. I suspect, in time, Seven might come to regret adding fuel to this fire. Even a minor victory, even if they managed one (and that’s a big “if”), would probably not compensate for the increased damage they would be doing to themselves and their reputations by running it. Particularly given the elements which they’re apparently not contesting, which they’ll be taken as effectively conceding, and which will be repeatedly raised until the matter is finalised – and beyond – and have greater light shone on them as a direct result of this action proceeding.

Don’t get me wrong – I’m glad that more attention will be paid to the dodginess of their reporting, and potentially the real damage it’s caused. But I don’t think they should be.

UPDATE: Crikey has a copy of the lawyers’ letter.

Jeremy’s Ear

An unfortunate misapplication of camel case in a National Times article strikes me as an excellent name for this blog – if I were a little more egomaniacal:

More abuse followed from others in the Twitterverse much along the same lines. One of the top tweets of the day was from JeremysEar who said “@JamesMassola is quite right; only journalists may discuss politics. Everyone else needs to have their job threatened.”

I’m not quite sure why that sarcastic remark qualifies as “abuse”, but, well, that’s not a bad title for a discussion site THAT IS ALL ABOUT ME AND THE STUFF WHAT I THINK – “Jeremy’s Ear”.

But I don’t think I could go through all the hassle of changing the URL again.

ELSEWHERE: Christian Kerr gets back at me in The Australian for running over his dog*:

“It’s also worth noting that the `blogosphere’ supposedly outraged is the small incestuous clique of self-identified lefties, with readerships composed mostly of themselves, who were more than happy to out other bloggers a few years ago with whom they disagreed.”

That last bit, for the uninitiated, is a reference to the modern dull and doctrinaire Crikey and its very own Adrian Mole, barrister-blogger Walter Jeremy Sear, and his role assisting The Sunday Age dissect the corpse of the spectacularly snarky site The Spin Start Here that offended sensibilities for years until it reached its logical conclusion and ripped itself apart. Sear was happy to help with an outing then.

The whole thing smacks of naivety and self-righteousness.

Of course, that’s not an accurate description of what happened – I wasn’t sorry to see that someone had outed the TSSH mob, but it wasn’t because I “disagreed” with them. It was because they’d been using that shield to out others. (And bully them fairly outrageously, as it happens.) Of course, Christian’s imputation of hypocrisy in that paragraph is fairly defamatory – “his role assisting”, “happy to help with an outing” indeed. This is the paragraph to which he must be referring:

Responding to the website, Mr Duncan and Ms Hamilton went to court for an interim intervention order against Bill Dennis, a blogger they suspected was responsible. The couple, who live in Eltham, alleged Mr Dennis was “stalking” them through the site.

To barrister Jeremy Sear, once a target for the Hack and Caz, such a complaint smacked of hypocrisy:

“They were particularly vile in the way they treated anybody who disagreed with them or they took a dislike to,” he says. “It’s almost funny that they’ve reacted so badly being ‘outed’, as this was something they regularly took part in with others.”

Mr Dennis was due to appear in the Heidelberg Magistrate’s Court next Tuesday to hear Mr Duncan give evidence against him. But it now appears that the pair have dropped their case.

“I think it’s probably a smart legal decision,” Mr Sear said. “To have the interim order made permanent they would have needed to give evidence and allowed themselves to be cross-examined. They would have been quizzed about their own blogging activities and therefore have to admit to being the Hack and Caz — or perjure themselves by denying it.”

Doesn’t really match Christian’s description, does it?

PS What the hell’s with the “Adrian Mole” crack? I don’t get it.

*I assume I must have unknowingly done something like that to motivate this particular effort.

Grog-gate: Outing as bullying

So, some News Ltd journalist who I’d never heard of before this morning has outed a blogger/twitterer (who very effectively criticised the lame efforts of the media during the last election), on the flimsy grounds that he’s a public servant WHO HAS POLITICAL OPINIONS he expresses in his non-work capacity and for some reason it’s “in the public interest” for us to know who he is. You know, in case we run into him in the street and want to have a chat. Or we’re his manager and can be persuaded to sack him.

And let’s be clear, that’s what this is about. The only relevance of his job is as a target to punish him for pissing journalists off. There’s no evidence that his job has anything to do with his opinions, or that he lets his opinions influence his job, or that there’s something wrong with a person who works for the public service having political opinions like the rest of us. (All of which Grog very eloquently denies.)


Tomorrow in The Australian: James Massola outs the Easter Bunny. IS HE A PUBLIC SERVANT? You’ll find out in the morning.

But why shouldn’t we know who he is? Why shouldn’t news organisations publicise the details of anyone engaged in the political debate?

Because for many people, their livelihood is quite incompatible with their expressing political views in their own name. Sure, they have a right to express those views – but if linked back to their work, via their identity being made public, it could result in serious consequences for their employment. And it’s not in the interest of the rest of us that such voices be silenced.

Which is effectively what will happen if everyone who dares participate is going to be vigorously pursued by the fourth estate, with all the resources at its disposal, and have their public participation deliberately jammed against their personal lives, their ability to earn a living, their support for their family.

Journalists, whose public opinions are directly associated with their livelihood such that there’s no conflict, or those who are their own employers, or those who are unemployed or unemployable, are free to talk sanctimoniously about “owning your words” and “the right to know” and so forth – but that’s because they are personally immune from damage. It’s all very well for James Massola to have his name attached to his words – because they’re what his employer pays him to write. (Although if I were Massola I wouldn’t be so confident that having my name attached to today’s effort will be without consequence in the long run.) It might be different if James wanted to express an opinion incompatible with his employers’ interests, something that could get him sacked – then he would have to choose between participation in the public arena or not going hungry, a choice he shouldn’t have to make. Maybe James doesn’t care about that because he intends to always be a good boy and do his master’s bidding, but that’s not the case for all of us, and nor should it be.

There is a place in the public debate for people who cannot afford to use their real names. As long as they do not take advantage of their work situation, or use their anonymity to pursue work-related goals, or in some other way abuse their anonymity – and expressing a political opinion is not abusing your anonymity – then why on Earth shouldn’t they use a pseudonym?

It’s not, as James disingenuously pretends, about a “right to anonymity”. It’s about a right to participate freely in political discussion, in a world in which employers can be less than sympathetic to such a right. The bullying by Mr Massola and his organisation in this instance, abusing their power to punish a critic, is a problem because it is being used in an obvious attempt silence and prevent such involvement in the future – to send a clear message to anyone else who would dare to question them in the future that WE WILL DO WHAT WE CAN (and that’s a fair amount) TO CRUSH YOU.

Let’s hope that Grog – and his employer – are able to treat the gambit with the contempt it deserves.

UPDATE: Just a question on the etiquette of outing: if outing without a good reason is wrong (and I’d argue it is), then what about outing an anonymous outer? Do they not deserve the justice of having their own names associated with their spiteful act? And if so, then what of the person who outs the outer? Are they immune despite being the outer of an outer, because their outing was legitimate under the previous outing rule? So an outer of an outer of an outer would be back to square one and deserve to be outed by an outer of an outer of an outer of an outer? Yup, I think that’s fairly clear now.

UPDATE #2: If anyone doubted this was about bullying, check out James Massola’s further attack today:

Jericho blogged as a hobby outside work hours. But he sent literally hundreds of partisan political tweets out, during work hours… Jericho’s decision to “live blog” the Media 140 conference (was it a sick day, a day in lieu, annual leave, did he clear it with his supervisor?) made my mind up.

What a vicious little tattle-tale. Will Massola now start timing Grog’s bathroom breaks to make sure the taxpayer’s getting value for money out of his employment?

UPDATE #3: And Tim Dunlop contrasts News’ shamelessly hypocritical behaviour with its campaigning about the importance of anonymity to free speech during the SA election. (I’d still like to know when they’re going to start outing their “staff writers”.)

UPDATE #4: My Pure Poison colleague Dave writes an excellent explanation for journalists who still don’t understand why amateurs might need to stay anonymous.

If Australia flipped a coin at the moment…

…this is how it would land:

So, who’s excited about That One Day In October?

Commonwealth Bank encouraging overseas investors to further inflate housing market

A housing affordability crisis in Australia fueled by increasing involvement of investors? A growing crisis in which only the very rich of future generations are going to be able to buy their own home? Iin which investors own the properties, and families are stuck renting for the rest of their lives? To this wonderful scenario the Commonwealth Bank says YES PLEASE and WHAT CAN WE DO TO MAKE IT WORSE:

The simmering debate about whether Australia has a housing bubble erupted again this week over a Commonwealth Bank presentation that seeks to assure global investors Australian real estate is a safe bet.

Senior Commonwealth Bank executives have travelled the world in the past couple of weeks with a presentation showing how Australian house prices, and the key price to income ratios, compare favourably with similar countries.

Isn’t that nice – the CBA wants to encourage more overseas investors to pour their money into the already inflated market. That’ll make its vast stake in existing property more secure, and increase the amount it can profit from ever-increasing home loans – who cares if the upshot is that an increasing proportion of the Australian population is being permanently locked out of buying their own home?


Craig James is already on the property ladder, and plans to use the inflated equity in his existing portfolio to force more young families to rent from him instead. Then he will live in a giant fortress with other wealthy Australians where the poor people can’t get at them.

When will governments wake up and see that the invasion of the market by investors is the real problem, and that it’s government tax policies – Howard’s cut to CGT in particular – that have made it so? How bad does the problem have to get before they take it seriously?

UPDATE: An international credit rating agency proposes to seriously analyse the extent of Australia’s problem, and bank stocks fall. (Via Jordan in the comments.)

An alternative public transport strategy to taking away pensioners’ concession

Well, yes. We could take concession fares away from pensioners, you spectacularly principled and not in any way utterly selfish and monstrous philanthropists of the “Tourism and Transport Forum”.

But I’ve got an even better idea.

First, we ignore everything you ever say for the rest of your nasty organisation’s pointless and unfortunate existence. We leave concession fares intact, and apologise to these struggling people for your unnecessarily mean-spirited suggestion. (I suppose we’re partly to blame for giving you the impression that we’re the sort of community that would respond positively to such utter bastardry.)

Then we remove “zones” from the public transport system, since they only punish the poorer inhabitants of outer Melbourne for not being able to afford to live in the much-better-served inner city. We expand the rail network to the many suburbs that don’t have any access despite growing populations and the fact that we simply can’t manage any more cars commuting to the city. We rebuild the railway lines to the regional centres that no longer have them, and we run decent reliable services to each. (By making it possible to commute from regional centres, we slightly lessen the demand on housing in Melbourne, and slightly address the housing affordability problem.)

And we build all of this infrastructure with public money (possibly deficit spending) because, for a number of reasons – from the unsustainability of growth on the roads, to the finite nature of the world’s oil supply, to tackling climate change – it’s imperative that we encourage people out of their cars and onto our trains and trams. Public transport is a natural monopoly; it’s not something we can leave up to the wondrous “free market”. As the last thirty years have demonstrated. So we fund it through our taxes, as an important public service.

And there’s no need to punish the poorest Victorians, concession-card holders, in order to do it.

Look, Kerry, even if I sign something you can’t rely on it

Righto. So, not only can you not trust anything Tony Abbott says verbally, you can’t trust documents he’s signed.

He’s withdrawing from an agreement – a signed agreement he made only a few weeks ago, after the election, regarding pairing the Speaker’s vote. Why? Because he wants to sabotage this parliament; he wants to force us all back to the polls. We didn’t elect him, and he wants to give us another chance to do so. And, presumably, keep on doing it until we BLOODY GET IT RIGHT.

But it’s important for voters to remember two things:

  1. Tony is even less honest than your average politician – he will say anything, he will sign anything, and he will refuse to be in any way bound by it. It’s not true to say “they all do that” – even the Liberals can’t find any good examples to minimise Abbott’s betrayal by comparison.

  2. If this backing out of an agreement forces us back to an election, it’s Tony Abbott who’s done it. Don’t forget who’s dragging you to a polling station to reconsider the vote you cast only last month.

Let’s hope Labor plays as hardball with the Libs as the Libs are playing with them.

PS: How disingenuous is Tony’s “oh Labor promised not to give us a carbon price so my lying is okay” defence? Labor promised a policy it would implement if it won government in its own right. It didn’t win government in its own right. So, after the election, it has to negotiate – and the majority of its voters plus Greens’ voters clearly want a carbon price. It’s not like Labor promised WE WILL NEVER IMPLEMENT A CARBON PRICE (this wasn’t a Liberal Party style “never ever”) – they just had a different process proposed, pre-minority government, for getting to it.

The difference with Tony’s backdown is that nothing has changed since he signed it. The MPs in the House are the same. The Constitution is the same. It’s just that he didn’t get what he wanted, so he’s picking up his bat and ball and going home to sulk.

UPDATE: Talking of Kerry – ohnoes! He’s leaving!

Why spend money fixing someone’s drug problem when you can spend much, much more imprisoning them and not resolving anything?

In Victoria, we have an excellent bail support program called CREDIT. (Or CREDIT/BSP. Or CISP. There’s some slight bureaucratic confusion over the name depending on the court.) The idea is to get drug-using offenders to learn to conquer and then resist their addiction, whilst in the community – a carrot-and-stick approach, in which the stick is that they’ll go to jail if they don’t do it successfully, and the carrot is, we can help you get off this substance and, if you do, you might be able to do your sentence in the community.

Locking an illicit drug user up only delays the problem: it doesn’t solve anything. They learn no useful techniques for dealing with their problem in the real world, and when they’re eventually released, many inevitably fall back on substance abuse – with the obvious consequent results for the rest of the community. A much better and more effective approach is to put them on a very tightly-monitored form of bail, monitored by experts in the field of drug addiction, in which their problem is managed very strictly, out in the real world where they will ultimately need to apply these strategies. The program takes place over some three months, with offenders being brought back to court every month to see how they’re managing: if they do not engage, or reoffend, then they go back inside and are sentenced accordingly; if they do well, and are clean by the time they are sentenced, then it is strongly mitigating against their sentence. If they were looking at a jail time to be served in custody, they might, for example, be able to do that as an Intensive Corrections Order, which is a form of jail served in the community. The idea being that, if drug use is the reason for the offending, then once that drug use is managed their threat to the community is greatly reduced.

Having a jail sentence hanging over someone’s head is an excellent motivator, but once they’ve been doing the program they often find that the techniques and habits they’ve developed actually stick. In reducing reoffending, the program really works – which is not just to the benefit of the offenders, it’s to the benefit of all of us. Fewer costs of crime (victims, police, courts, lawyers), and, as a side note, it’s much much cheaper to put someone on CREDIT and then an ICO than it is to keep them in prison. It’s also more just, and more constructive – rather than condemning people with what are, by the stage they reach court, effectively serious health problems, to a painful, useless life of offending and imprisonment, it gives them a way to become positive, constructive members of the community again.

The only problem is that it’s ridiculously underfunded. Increasing funding for bail support programs doesn’t get a Minister (in this case, Bob Cameron) a positive headline in the Herald Sun – quite the reverse. WHY ARE WE SPENDING MONEY ON CRIMINALS, the paper would angrily scream, completely ignoring that locking everyone up costs a vast amount more. And gutless Ministers are more interested in pandering to the ill-informed mob than advocating for policies and programs they know actually work.

The upshot of which is that the CREDIT program at many courts is full-up by the middle of each month, with the queues lengthening and the problem escalating as they struggle to cope with the unmet demand. Prisoners who could benefit from the program sit in prison because whilst they would be fine in the community with proper supervision, they’re too much of a risk to release with no supports – despite jail not necessarily being the appropriate sentence in their case. People serve time that is excessive compared with the offence they’ve committed. And they lose the chance to actually address the problem that’s put them in there. And we lose the chance to effectively get them clean while the opportunity is greatest.

CREDIT isn’t the only important such service that’s being left by the government to atrophy, of course. Part of the problem it faces is that many of the services on which it relies – drug and alcohol counsellors, in particular – are also under-resourced and stretched to the limit. Many are simply not taking new cases at the moment, meaning that we have people in the community with serious problems, ready and desperate to get the help they clearly need – that we simply are unwilling to provide. And then we complain when we read of drug-related crime!

The only way this situation will improve is if increasing numbers of citizens make our voices heard on the subject. We don’t want money wasted on more jails: we want sensible, proven, effective programs that actually reduce offending and lessen our risk of being victims of crime (and cost us much less as taxpayers) to be expanded to meet the obvious need. Programs like CREDIT.

Good luck getting that message through the tabloid gatekeepers, though.

ELSEWHERE: California proposes to legalise marijuana: beer companies spend money opposing it. Either they suddenly believe in restricting intoxicating substances or – well, you can draw your own conclusions as to their motivation. (They couldn’t be seeking to uphold a ban because they’re afraid of the competition, could they?)