Peter Black's Freedom to Differ

#atNickHodge: "Australian Constitution. Yes, We have one"

Last night I was a guest on Nick Hodge's Ustream show, atNickHodge, where we discussed the Australian Constitution:

 

Podcast of The Tangled Web: Beyond an Internet Filter

On Tuesday night I had the pleasure of chairing a newmatilda.com public forum on the internet regulation debate in Australia:

newmatilda.com presents a series of public forums about the internet regulation debate in Australia.

The Federal Government's proposal to block internet sites with a mandatory filter has drawn overwhelming opposition from voices across politics and civil society. So what are the real questions for policy-makers?

These forums explore the ethical, social and political questions raised by government regulation of the internet. With the growing intersection between technology, politics and media, how do existing and proposed classification regimes measure up?

Is filtering inevitable? Or are there better ways to regulate the world wide web?

Chair:
Peter Black, QUT Faculty of Law

Speakers:
Senator Scott Ludlam, The Australian Greens
Irene Graham, libertus.net
Nic Suzor, Electronic Frontiers Australia

A podcast of the audio recording of this forum can be downloaded here:

iiNet copyright case update

In November I blogged that iiNet had been sued for copyright infringement by by Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney and the Seven Network (see here).  The case moved forward during the week with iiNet filing their defence on Thursday and a preliminary hearing taking place before Justice Cowdroy on Friday:

THE court showdown between internet service provider iiNet and movie studios has been set for October 5 in the Federal Court.

The Australian Federation Against Copyright Theft (AFACT), on behalf of seven leading film companies and their affiliates and licensees, sued iiNet last November on copyright infringements claims.

AFACT alleges that despite being warned on 18 occasions over a five month period, iiNet didn't stop its customers from illegally downloading and exchanging movies and TV programs.

It is seeking a ruling that iiNet infringed copyright by virtue of not taking reasonable steps to prevent its customers from allegedly dabbling in the illegal activity.

iiNet has said it would vigorously defend itself against the lawsuit.

Entertainment industry heavyweights party to the court action include Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Disney Enterprises, Seven Network and Twentieth Century Fox, owned by News Corp, which also owns The Australian.

In the Federal Court this morning, lawyers for iiNet and AFACT agreed that the trial would last around two weeks.

Justice Dennis Cowdroy also set the next directions hearing date on July 29, as well as a series of deadlines for affidavits to be filed.

Read more here (from Australian IT).  The Age has more details about iiNet's defence:

iiNet filed its defence yesterday, claiming that the Copyright Act and Safe Harbour provisions introduced with the US free trade agreement stipulated that ISPs were not liable for copyright infringement by customers.

...

In its defence, iiNet admitted that the movie studios held copyright to their libraries of films but was not yet ready to concede that its customers illegally downloaded them.

Regardless, it said that it would not derive commercial benefit from customers downloading films illegally and would in fact incur more costs due to the additional bandwidth used.

In court today, lawyers for the movie studios said they provided iiNet with evidence of its customers' copyright infringement yesterday. The studios hired online investigators DtecNet to intercept BitTorrent traffic and record all instances of iiNet users downloading copyrighted movies illegally.

In the face of this evidence, lawyers for the movie studios said they expected iiNet to admit that its customers had downloaded movies illegally. iiNet's lawyers said they were still reading the document but may be willing to concede that point.

Both sides agreed that the main issue in the hearing would be whether iiNet was liable for the actions of its users and whether it in effect "authorised" their copyright infringement by failing to disconnect them when notified of the infringements by the movie studios.

The Australian Federation Against Copyright Theft (AFACT) sent several letters to iiNet notifying the ISP of the infringements, however, in its defence iiNet said the notifications were "mere allegations of copyright infringement" and were forwarded to police.

"The allegations of copyright infringement in the AFACT notifications were not accompanied by sufficient information to demonstrate the veracity of the allegations," iiNet claims.

"iiNet was, and is, legally bound to continue to provide relevant iiNet Services to iiNet Subscribers under its contracts with those subscribers."

iiNet pointed out that it provided access to legal downloads of games, movies, music, radio, sports and TV content through its Freezone service. (www.iinet.net.au/freezone)

It said it "did not sanction, approve, or countenance" alleged copyright infringement by any iiNet user.

Read more here.  I was interviewed about the iiNet lawsuit for ABC's Radio National PM program on Friday.  You can listen to the report or read the transcript here.

Joe Trippi at QUT: "Online campaigning in the US Presidential election"

As part of Joe Trippi's visit to Australia thanks to Microsoft Australia, he will be speaking at QUT on Thursday 5 March:

QUT Faculty of Law Free Public Lecture Series 2009
Presents
 
Mr Joe Trippi
Trippi & Associates (USA)
 
Online campaigning in the US Presidential election
 
Thursday 5 March 2009
 
The Gibson Room
Level 10, Z Block
QUT Gardens Point Campus
 
5.30 pm Refreshments
6.00 pm Lecture commences
7.00 pm Lecture concludes

The Speaker
Joe Trippi is the man who introduced the internet into US presidential campaigning and is widely-credited with having ‘re-invented campaigning’.

Much of the success of Barack Obama’s presidential campaign has been attributed to the innovative use of the internet to rally grassroots support.

As National Campaign Manager for Howard Dean’s presidential campaign in 2004, Joe pioneered the use of online technology to organise what became the largest grassroots movement in presidential politics.

As a campaign manager, Joe has run presidential, senate, gubernatorial and mayoral campaigns in the US. His innovations have brought fundamental change to the electoral system and have become the model for smart campaigning.

Joe Trippi has been profiled in GQ, Wired, Fast Company, The New Republic and The New York Times Magazine. He is a  political analyst for the 24-hour US cable news channel MSNBC and a former Harvard University fellow. He currently heads the Washington, DC political consultancy, Trippi & Associates.

Joe is the author of “The Revolution Will Not Be Televised: Democracy, the Internet and the Overthrow of Everything,” the story of how his revolutionary use of the Internet and an impassioned, contagious desire to overthrow politics as usual grew into a national grassroots movement and changed the face of politics, and indeed many aspects of American life, forever.

Joe Trippi’s visit is supported by Microsoft Australia.

Registration: Register by 27 February 2009 at qutlawpubliclectures@qut.edu.au

Registered attendees may claim 1 CPD point for the Queensland Bar Association and Queensland Law Society.

The Great Dissenter

On Monday Justice Kirby will retire from the High Court of Australia.  In today's The Australian there are two pieces on Justice Kirby's contribution, one by Michael Pelly and another by Professor Michael Lavarch.  Although only time will tell if the judicial philoposhy evident in Justice Kirby's judgments, many of which were in dissent, will be vindicated, what is not in doubt is his remarkable contribution as a public intellectual.  One feature of this role has been his willingness to be involved in legal education; he has no doubt spoken at almost every Australian law school at one time or another (many on several occasions) and has always given his time, energy and insight generously.  However, he is a hero to so many law students not just because of this generosity but also as a result of his progressive judicial philosophy, his clear and compelling writing style (which students particularly appreciate) and his good humour.  One example of this is in his contributions to the University of Queensland Law Revue over the last decade, as James Tinniswood recounts:

To many, his Honour will be remembered for his liberal views, high rate of dissenting judgments (and being damn proud of it) and advocacy of gay rights.

For me, I'll remember him for doing some ripper cameos in the Revue for us. He was a great sport about doing this one in 2006...

He also did a quick direct to camera spot to open the 2004 show (which I don't have access to unfortunately), where he said something like

"Hello, I'm Michael Kirby and welcome to the Law Revue. Sit up, pay attention and no messing about in the stalls. That's a unanimous decision of the High Court. No dissents.

And while that was cute, I felt it was a comedic opportunity wasted.

So luckily, he happened to be coming back to UQ in early 2006 to give a speech about his ten years on the High Court, and we snagged him for about ten minutes before he had to give the speech. He nailed it in one take, even ad libbed the banging of the table and "think original" (which happened to be the theme of his speech).

He talked to us about his fondness for the recently deceased Harry Gibbs (the former Chief Justice after whom the moot court at T.C. Beirne was named) and we had a photo snapped of us in front of Sir Harry's portrait. I never did see that photo, but it was very cool thing of Justice Kirby to do for us.

Read more here.  As of Monday Justice Kirby will no longer be a judge of the High Court of Australia, but I have a feeling he will continue to be a present and persuasive figure in matters of public importance for a consierable time to come.

Second Annual Microsoft Politics & Technology Forum: Online Campaigning

On Thursday 26 February, Microsoft will be hosting their second annual Politics and Technology Forum.  The keynote speaker this year is Joe Trippi.  Once again it looks as though it will be an excellent event:

Join government, business leaders and political bloggers at the second annual Microsoft Politics & Technology Forum.

On this informative morning, Keynote Speaker Joe Trippi details the impact of new technologies on modern politics. Heralded by the US press as the man who “reinvented campaigning”, Joe has run Presidential, Senate, Gubernatorial and Mayoral campaigns. His innovations have brought fundamental change to the electoral system and have become the model for online campaigning.

There will also be a Q&A panel discussion, new technologies will be demonstrated, and some revealing insights and statistics around Australian digital behaviour will be shared.

We are delighted to welcome Lindsay Tanner MP, Minister for Finance and Deregulation, The Hon Malcolm Turnbull MP, Leader of the Opposition to this exciting event.

RSVP here. Note, however, that before you start booking flights to Canberra, Microsoft is organsing events in other capital cities where Joe Trippi will akso be speaking.  Stay tuned for details of those other events ...

Update: Microsoft's Australian Government Affairs Blog has more information on the event, including this invitation:

While our keynote and discussion will be invaluable to anyone interested in democracy and communication in the first half of this century I also wanted the forum to be an opportunity for a look at practical examples of new technology tools.

To that end I'd like to invite any developers, web 2.0 or social networking activists with ideas for, or examples of, on-line tools that can be used in political campaigning and who would like to demonstrate their ideas (as a proof of concept or developed application) to the attendees at the forum to contact me.

I'm not interested in how the tools were or are developed, what platform or language the tool was or would be developed with as long as the idea is original, is yours, and you are prepared to demonstrate the concept or tool to the audience. It would be preferable if the idea were capable of wide usage but that is a matter for you.

• Up to three ideas will be selected for demonstration.
• Financial support will be provided to get to Canberra.

Contact me:

If you have an idea or you have developed a tool that you think will support on-line campaigning and you want to demonstrate it to our federal political campaigners and bureaucrats send me an email - simone@microsoft.com

Proposals will need to be with me by 16 February and you will need to have the tool ready for demonstration on the 26th of February in Canberra.

Read more here.

Comparing government copyright on the web: from whitehouse.gov to pm.gov.au

One feature of US President Barack Obama's relaunched whitehouse.gov website was the inclusion in the copyright notice the provision that all third-party content on the site is licensed under a Creative Commons Attribution 3.0 License:

Copyright Notice

Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

Read it here.  Canadian copyright scholar Michael Geist compared the copyright notice on whitehouse.gov to the Prime Minister of Canada's copyright notice:

The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Such provisions serve to identify the information source and, in specific instances, to prohibit reproduction of materials without written permission.

Non-commercial Reproduction

Information on this site has been posted with the intent that it be readily available for personal and public non-commercial use and may be reproduced, in part or in whole and by any means, without charge or further permission from the Office of the Prime Minister. We ask only that:

• Users exercise due diligence in ensuring the accuracy of the materials reproduced;
• The Office of the Prime Minister be identified as the source department; and,
• The reproduction is not represented as an official version of the materials reproduced, nor as having been made, in affiliation with or with the endorsement of the Office of the Prime Minister.

Commercial Reproduction

Reproduction of multiple copies of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from the Government of Canada's copyright administrator, Public Works and Government Services Canada (PWGSC). Through the permission granting process, PWGSC helps ensure individuals/organizations wishing to reproduce Government of Canada materials for commercial purposes have access to the most accurate, up-to-date versions. To obtain permission to reproduce materials on this site for commercial purposes, please contact:

Public Works and Government Services Canada
Publishing and Depository Services
350 Albert Street, 4^th Floor
Ottawa, Ontario
Canada
K1A 0S5 or
copyright.droitdauteur@pwgsc.gc.ca

Giest concluded that:

While this is better than some other Canadian government departments (who require permission for all uses), it is still not good enough.  First, Canada should drop crown copyright so that there is no copyright in government-produced materials.  Second, there is no need for a distinction between commercial and non-commercial - Canadians should be free to use the government-produced materials for either purpose without permission.  Third, third-party materials, which are Creative Commons licensed in the U.S., are subject to full restrictions in Canada.  Admittedly few people take the time to read these terms and conditions, yet they send a message about the openness, transparency, and a commitment to public engagement with government.  The White House has changed its approach and now the Prime Minister should do the same.

Read more here.  Geist's post made me curious as to what the position would be in other countries with a similar copyright and political system, so I looked at the respective websites for the Prime Minister of Britain and the Prime Minister of Australia.  This is the copyright notice for number10.gov.uk:

Material on this site is subject to Crown copyright protection unless otherwise indicated. The material may be downloaded to file or printer without requiring specific prior permission. Any other proposed use of the material is subject to the approval of Her Majesty’s Stationery Office (HMSO).

Applications should be made to:

HMSO
St Clements House
2 - 16 Colegate
Norwich
NR3 1BQ
United Kingdom

Tel: +44 (0) 1603 621000
Fax: +44 (0) 1603 723000

Read it here.  This policy is even more restrictive than the copyright notice on the Prime Minister of Canada's website.  First, it provides that all material on the website is subject to Crown copyright.  Second, this policy does not allow for reproduction for non-commercial use; rather it requires premission regardless of whether the use is for commercial or non-commercial purposes.  A further disappointing feature of this copyright notice is that applications for permission cannot be made online or on email.

Fortunately, the copyright statement on the website of the Prime Minister of Australia is not as restrictive:

The material on this website is copyright. You may download, display, print and reproduce (copy) this material in unaltered form only (retaining this notice) for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. If you wish to republish any material on your own website or in a publication of any description, please see further guidance under Republishing Material from this Website below.

Requests and inquiries concerning reproduction and rights should be addressed to: 

Commonwealth Copyright Administration
Attorney General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

or posted at http://www.ag.gov.au/cca.

Republishing Material from this Website

All the material on our website is subject to copyright. You must not:

• Unlawfully use any of the material from this site, or
• Pass off content from this site as your own. This includes copying sections or re-using parts of the site under this pretense.

If you wish to republish or quote any material from the Prime Minister's website in a publication of any description you must seek written permission from the Department of the Prime Minister and Cabinet which manages this website. Written enquires should be directed to:

Publishing Services Manager
Department of the Prime Minister and Cabinet
PO Box 6500
CANBERRA ACT 2600
Australia

Read it here.  This notice is quite similar to the Canadian notice in that it allows personal, non-commerical use, but does not go anywhere near as far the new whitehouse.gov website.  Presuambly nations like Canada, Britan and Australia share Obama's ideal of transparency and accountability in government, yet these values are not yet reflected in their copyright policies. 

As a post on the Creative Commons website suggests, the rest of the world should follow the lead site by Obama and whitehouse.gov:

While the decision to use CC on Whitehouse.gov may appear uncontroversial in light of the fact that US federal works are not subject to copyright protection, very few other countries share this policy ... This is precisely where Creative Commons can help. Obama’s far sighted choice should serve as an example for other governments around the world: now is the time to start sharing.

Read it here.

Filtering political speech

Stilgherrian has a piece in Crikey today titled So Conroy’s Internet filter won’t block political speech, eh?:

“Freedom of speech is fundamentally important in a democratic society and there has never been any suggestion that the Australian Government would seek to block political content,” intoned Senator Stephen Conroy on Tuesday.

Yet the very next day, ACMA added a page from what’s arguably a political website to its secret blacklist of Internet nasties.

The page is part of an anti-abortion website which claims to include “everything schools, government, and abortion clinics are afraid to tell or show you”. Yes, photos of dismembered fetuses designed to scare women out of having an abortion. Before you click through, be warned: it is confronting. Here’s the blacklisted page.

Read the rest here (you don't need a Crikey subscription to read it).  When writing the piece, Stil asked me for my thoughts and I jotted them down in a quick email, extracts of which Stil generously quotes.  Here is what I wrote to Stil in that email:

The ACMA classifying this anti-abortion website as prohibited content or potential prohibited content highlights several serious flaws inherent in the policy to filter the internet. 

First, it is indicative of the difficulty associated with defining “political speech”.  Legal scholars, judges and philosophers have wrestled with the boundaries of political speech for centuries, from John Milton to Alexander Meikeljohn, and it ludicrous to suggest that the ACMA or the Government is magically imbued with the ability to determine which websites have an element of political content and which do not.  And nor should that be the role of the ACMA or the Government.  Citizens in a liberal democracy should be lawfully able to inform themselves on matters that are of political interest of them, and not have the debate framed or restricted by Government classification.

Second, it demonstrates the inflexibility of the classification standards.  It is probable that this website does indeed constitute prohibited content or potential prohibited content under the Broadcasting Services Act, but that is only because the definitions in the Act inevitably treat all content in the same way; the same standard applies to political and non-political content.

Third, it is a good example of the dangers inherent in prior restraint.   Once a website like this gets added to the blacklist is becomes impossible for Australian citizens to determine for themselves whether this website should be banned or not.  The proposed filter means that the public cannot review the decisions made by the ACMA or the Government.  This lack of accountability should be very troubling to anyone living in a liberal democracy.

Ultimately the fate of this website is an illustrative example of the dangers inherent in any Government censorship scheme.  Issues of political speech, classification and accountability are without doubt both complex and important, and any notion that they can be adequately addressed and balanced by a Government regulator engaging in prior restraint is somewhere between being unbelievably naive and downright dangerous.

Again, you can read Stil's piece in Crikey here.

A-PAC: Australia's Public Affairs Channel

Australia's answer to C-SPAN, now called A-PAC, will launch on 20 January.  The website is online here, where you can watch a promotional (propaganda?) video that gives the impression that this channel was the most important outcome of Kevin Rudd's 2020 Summit and that it has come "more than a decade ahead of that vision".

A conversation with Charon QC

Earlier this evening I chatted with British blawger Charon QC for a podcast he has now posted to his blog.  On the podcast we chat about the Australian Government's plan to filter the internet, blogging, Twitter, cricket and legal education.

You can download the podcast here.

"The world smirks at Conroy's censorship plan"

In today's Crikey, the Vice Chair of Electronic Frontiers Australia Colin Jacobs had an excellent piece on a new study published by Brooklyn Law School entitled "Filtering in Oz: Australia's Foray Into Internet Censorship".

The rest of the world has been smirking at Stephen Conroy's ill-conceived plan to censor Australia's Internet for a while now, but a new study published by Brooklyn Law School entitled "Filtering in Oz: Australia's Foray Into Internet Censorship" is a serious embarrassment.

This report is important. Not only is it authored by a reputable and neutral foreign observer but it also focuses more on the legitimacy of the scheme than the technical concerns, and it finds some serious problems. Despite the sober language, phrases like "troubling", "worrisome", "politically motivated" and "unaccountable" are common.

Contrary to persistent claims by the Minister, the study finds that Australia "will likely become the first Western democracy to block access to on-line material through legislative mandate."

Read the rest of piece here and download the full report here.

Academic blogging

Jeremy Gans has decided to bring a halt to his Charterblog, which for the past year has followed the progress of Victoria’s Charter of Human Rights.  Although this is a loss to the Australian blawgosphere and to anyone interested in human rights and charters of rights, it is hard to fault his logic in bringing the blog to an end:

Why stop now?  I made the decision to stop the blog today back in around July.  Charterblog is, as readers will well know, a very intensive blog . I’ve managed it so far, but I’ve long known that it isn’t sustainable (especially for someone with two regular jobs.) My options were either to make the blog less intense or to make it finite. I didn’t hesitate in choosing the latter. Better an intense, temporary blog, than a perpetual and lame series of links,  one-liners and the odd meaningful post. A year-long blog makes aesthetic sense and matches the year-by-year nature of the Charter’s development too.

As well, 2009 is a big year for me in my academic job ... Finally, recently, it’s become clear that it’s probably too early for a perpetual blog charting the development of Charter jurisprudence, as the pace of that development (if, indeed, it is happening at all) is too glacial to sustain a case-by-case analysis.  The result is too many frustrated posts that begin ‘Yet again…’. If I kept this up, I might become jaded!

In wrapping his blog he also thanks his employers, including the University of Melbourne:

Blogging carries no cred with DEST and even the folks at Melbourne Uni who defined ‘knowledge transfer’ can’t seem to get their heads around the concept. And my particular blogging style and views bring political risks, not only for SARC but (as it turns out) for Melbourne Law School too. I’m fortunate indeed that neither has raised the slightest objection. That’s quite appropriate, of course, given Charter s. 15, but it’s also courageous, especially when there’s a bully on the block.

Finally, he endorses the benefits of blogging for academics:

I can’t recommend blogging highly enough to any academic whose field includes regular contemporary developments. A commitment to regular, public and comprehensive commentary forces an engagement with the subject-matter that exceeds any other academic endeavour, even a PhD. And the informality of blogging is a perfect antidote to the jargon and circuitous nature of formal academic discourse, not to mention the obsequiousness and pomposity of the law.

Read more here. 

Whenever I read statements like that, and academically rigorous blogs like Jeremy's, I always reflect on my little blog and wonder whether it is too frivolous or whether there is too much linking and pop culture and not enough original legal analysis.  However ultimately I always conclude that I like my blog the way it is - I think my mix of posts is part of what keeps it interesting to read.  And perhaps more importantly, it reflects me and what interests me, which means that I enjoy writing it.  So at least as far as my blog is concerned, I'm quite happy to be labelled as a bit of a pop academic.

Justice Bell appointed to the High Court of Australia

Attorney-General Robert McClelland has announced that the Australian Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009.  Justice Bell will replace Justice Kirby on the High Court.  Here is the announcement:

I am pleased to announce that the Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009.

Justice Bell will be the 48th person, and the fourth woman, appointed to the High Court since Federation. Her Honour’s appointment will follow the retirement of the Honourable Justice Michael Kirby AC CMG after 13 years of outstanding service to Australia’s highest court.

Justice Bell is currently a Judge of Appeal of the NSW Supreme Court. Beginning her legal career at the Redfern Legal Centre in 1978, Justice Bell practised as a lawyer for over 20 years before being appointed a Judge of the NSW Supreme Court in 1999.

Her Honour’s time in practice included service as a Public Defender, as Counsel Assisting the Royal Commission into the NSW Police Service, and as a part-time Commissioner of the NSW Law Reform Commission. Most recently Her Honour has also served as President of the Australasian Institute of Judicial Administration.

In accordance with the Government’s public commitment to extensive consultation on appointments to the High Court, I again wrote to State and Territory Attorneys-General, the Chief Justice and other Justices of the High Court, the Chief Justices of the Federal Court and the Family Court and the Chief Federal Magistrate, the Chief Justices of the State and Territory Supreme Courts, the Council of Australasian Tribunals, the Law Council of Australia, the Australian Bar Association, State and Territory Bar Associations and Law Societies, Australian Women Lawyers, the National Association of Community Legal Centres, National Legal Aid, and Deans of law schools.

The Government is grateful to all those who put forward suggestions, which greatly assisted the Government’s consideration.

A short biography of Justice Bell is attached.

Media Contact: Adam Sims 02 6277 7300 or 0419 480 224.

Name: Justice Virginia Margaret Bell

Date of birth: 7 March 1951

Qualifications: LLB, University of Sydney, 1976
Admitted as a Solicitor, 1977
Commenced as a Barrister, 1984
Appointed Senior Counsel, 1997

Judicial offices: Judge of Appeal, NSW Supreme Court, 2008
Judge, NSW Supreme Court, 1999-2007

Other: Australasian Institute of Judicial Administration
President, 2007-2008
Council Member, 2003-2006

University of Wollongong Law Faculty Advisory Committee
Chair, 2007-2008

NSW Law Reform Commission
Part-time Commissioner, 1998-1999

NSW Bar Association, Criminal Law and Equal Opportunity
Committees, 1997-1999

Royal Commission into the NSW Police Service
Counsel Assisting, 1995-1996

Public Defender, 1986-1989

Public Interest Advocacy Centre Steering Committee, 1982-1984

NSW Sexual Assault Committee, 1983

NSW Law Foundation Board of Governors, 1982-1984

Solicitor, Redfern Legal Centre, 1978-1984

Read it here. 

Rally against Internet Censorship in Australia

This coming Saturday 13 December there are rallies planned for across Australia to protest the Australian proposed internet filter:

There are more details available here.

Although I hope to attend the Brisbane rally (before rushing off to an engagement party), I can't help but think there is something to Mark Bahnisch's position:

There’s a rally protesting the Clean Feed internet censorship plan in Brisbane Square on Saturday from 11am to 3pm.

I support the cause, but I won’t be there. I’m aware of three other protest rallies and marches in Brisbane over the last month or so, and participants reported a condition close to heat exhaustion, no matter how behatted and water bottled. Saturday’s maximum temperature is forecast to be 33 and it’s bound to be over 30, with probably very high humidity all through the rally (and what’s with a four hour rally, anyway?). I just walked home from the bus stop - about three minutes’ walk - and even with a bit of shade and a slight breeze, at 28 degrees with a searing sun and very muggy conditions, that was an unpleasant three minutes. I was arguing in various activist communities as early as the mid 90s that the rally/march model had had its day. With all due respect to the organisers, no one sane would advise anyone to stand around for an hour in the middle of the day at the height of Brisbane summer. Shade in Brisbane square is about nil. There are actually serious health risks.

Surely net-savvy folk can find much more creative ways of making their point, and as I do recognise that it’s often worth gathering people together in physical space, whatever’s wrong with a night time vigil or sunset gathering on the grass? At best this rally will achieve a short grab on the news. Activists need to think much more innovatively, and also take into account the bloody climate!

Read more here.

Forum: Internet filtering and censorship proposals

Tomorrow (Thursday 27 November) the UNSW Cyberspace Law and Policy Centre is hosting a forum to explore aspects of the Australian Government's current internet filtering and censorship proposals. The aim of the forum is to "get beyond the more heated claims and counter-claims circulating at present and explore some of the underlying issues and constraints, hopefully giving room for various perspectives and arguments to be considered on their merits". It promises to be an excellent event.  For more details about the forum visit the resource page for the event here.

Stilgherrian will be live blogging the event with others (including myself and Michael Meloni):

Forum: Internet filtering and censorship proposals

On Thursday 27 November, the UNSW Cyberspace Law and Policy Centre is hosting a forum to explore aspects of the Australian Government's current internet filtering and censorship proposals.  The aim of the forum is to "get beyond the more heated claims and counter-claims circulating at present and explore some of the underlying issues and constraints, hopefully giving room for various perspectives and arguments to be considered on their merits".  it promises to be an excellent event.

For more details about the forum visit the draft resource page for the event here.

 

Governments beware: hyperpolitics is here!

In a very insightful piece, Mark Pesce describes how the recent internet filtering controversy is a good example of hyperpolitics:

In less than a week's time, Conroy has found himself in deeper and hotter water than ever before in his ministerial career. Australia's Twitterers, better connected than the Government which governs them, have out-organized, out-thought, and out-manoeuvered the government. Senator Conroy has taken a disorganized community of well-connected peers and given them an organizing principle, a raison d'etre. This may not have been Conroy's intention (I rather think it wasn't) but the senator must face the consequences of his actions. This mob won't quiet down until the Government drops the filtering proposal.

Worse yet, from the Government's point of view, when this mob succeeds in changing the policy of the Government, the Government will have implicitly blessed a new political force. This collective, ad-hoc political action (which I have termed "hyperpolitics"), is well on its way to becoming a permanent feature in Australian politics, no matter what happens in this particular instance. Both different from and complementary to online campaigning, hyperpolitics knows no party affiliation, and is too chaotic to be channeled into manageable forms. Hyperpolitics come at you from a dozen directions at once - a sensation Senator Conroy is now wholly familiar with.

Although the issue at hand involves making the internet safe and clean, that is actually less important than the force rising to oppose the plan. In the next days, weeks and months, as we watch the Department of Communications and Broadband modify its proposal and redefine their election commitments in the face of hyperpolitical opposition, we'll get a good glimpse into the inner workings of political life in Australia in the 21st century. Senator Conroy, as the first victim backed into the buzz saw of hyperpolitics, is learning a lesson that other politicians would well heed: the mob is no longer yours to command or control. The mob is fully capable of stating its own needs, and furthermore, is fully capable of satisfying them.

Read more here.

R18+ for games

Electronic Frontiers Australia has launched a new website, R18+ for games , as part of a campaign for the introduction of an R18+ rating for video games in Australia:

Australia is the only Western country without an R rating for computer and video games. If a game is deemed unsuitable for MA15+ by the Office of Film and Literature Classification, it is refused classification and cannot be sold. Titles including 50 Cent, Bulletproof, Postal 2, Leisure Suit Larry, NARC, Singles, Blitz: The League, and Manhunt have all been refused classification in recent years. In 2008 alone, four game titles have been banned: Silent Hill, Fallout 3, Dark Sector and Shellshock 2.

According to recent surveys, the average age of gamers in Australia is around 30 years old.

An R18+ classification would require the unanimous support of all Attorneys-General, and in the past moves to change the current classification have been blocked on the vote of a single state Attorney-General.

EFA is now sponsoring a campaign to have the R18+ classification for games introduced in Australia.

Check out the website here.

The Great E-Barrier Reef

Eugene Volokh at The Volokh Conspiracy, one of the leading legal blogs in the United States, has blogged about the Australian Government's proposal to filter the internet.  He also coined the phrase the "Great E-Barrier Reef" to label the policy (at least I think he was the first to use that phrase).  Here is part of his commentary:

As I argued before, it seems to me quite likely that once government-mandated nationwide filtering is imposed on one sort of content, there'd be considerable pressure to extend it. After all, we already mandate provider-based filtering of child pornography, and this is just a small extra step, since it's only going after illegal material.

True, the filtering may be overinclusive, because it will inevitably block even some material that, on closer examination, would have proved to be constitutionally protected. But we've already crossed that bridge in the earlier proposal, haven't we? So why not take this a step further? The slippery slope is a real phenomenon, in legal and political systems that are heavily influenced by notions of precedent and logical consistency.

Now perhaps the bottom of the slippery slope isn't that scary. Maybe service providers, in Australia or America, should automatically block access to sites that private filter companies -- or the government -- has decided contain illegal hard-core porn, child pornography, copyright-infringing material, libelous statements, statements that express hostility based on race, religion, or sexual orientation (at least when accessed from those Western countries that outlaw such statements), copies of the "Hit Man" murder manual or the Anarchist's Cookbook, and the like. Rather than requiring trials to decide whether each site contains illegal information, a process that would be so cumbersome that it would keep the regulatory schemes from working effectively, we should just have providers instantly block access to any site that some government agency has decided is indeed illegal. Much more efficient, indeed perhaps the only efficient way of effectively shielding Australia and America from potentially harmful off-shore speech.

In my view, such a solution, efficient as it may be, would nonetheless be wrongheaded; and under U.S. law, it would be an unconstitutional prior restraint, since it would involve the government mandating the blocking of potentially protected speech before a final court judgment that the speech is indeed unprotected. But in any event, we should recognize that it's quite likely that any filtering proposal -- even one pitched as being aimed at child pornography -- will indeed end up being quite broad. And we should evaluate such proposals with an eye towards these long-term consequences, and not just their initial scope.

Read more here.  I think Eugene's analysis that the slippery slope is a real phenomenon is particularly important.  If so if you are sceptical about the merits of this statement, you should read his very comprehensive articie that was published in the Harvard Law Review on this topic, "The Mechanisms of the Slippery Slope".

Australian censorship

Many Australians are rightly outraged at the policy of their to introduce mandatory internet filtering.  This is normally I topic I would have blogged about here in great detail (the name of the blog is, after all, inspired by a US Supreme Court decision on the First Amendment) but due to a lack of time on part and the fact that so many others are already doing a superb covering this issue, my only contribution to the debate so far has been one op-ed piece (which you can read here).  So if you would like to read more about this issue I'd encourage you to visit Michael Meloni's excellent blog on censorship in Australia, Somebody Think of the Children.

Public Law Weekend

I am currently in Canberra to attend the thirteenth annual Public Law Weekend held by the Centre for International and Public Law at the ANU College of Law on Friday 31 October and Saturday 1 November.  You can download the program here.  I had hoped to live blog and Twitter the event but unfortunately I can't access the internet in the auditorium.  However, I hope to be able to post a summary of the Weekend in the next few days.

Op-ed piece on internet filtering

I have an op-ed piece in today's The Courier Mail looking at the Australian Government's internet filtering policy.  You can read it here.

ACTA update

During the week my QUT colleague Nic Suzor attended a briefing session hosted by the Australian Department of Foreign Affairs and Trade (DFAT) on the Anti-Counterfeiting Trade Agreement (ACTA).  Read Nic's summary of the briefing here.  The main points Nic took away from the meeting were as follows:

• Negotiations will go 'well into 2009';
• The Commonwealth Government is not seeking to drive domestic changes through ACTA. Overall, there do not appear to be any great changes to Australia's enforcement regime – it appears to be more focused on affecting other states;
• The Government intends to limit the effect of any treaty to trademark infringement and commercial scale copyright infringement;
• However, statutory damages for copyright infringement are on the table;
• Next meeting, in December, will consider internet distribution;
• Camcording is likely to be criminalised;
• There's still time to make relevant submissions to DFAT – indeed, they release a substantial amount of information once they receive the draft proposals before every negotiation round;
• DFAT has a copy of the Cutler report.

 

The Howard Years

Now available on YouTube is a preview of the upcoming ABC documentary The Howard Years:

TV Tonight's David Knox has more here.

After having read The Costello Memiors I am realy looking forward to hearing more about John Howard's term as Prime Minister from several other key players.

The other blogging Peter Black

I've been aware of my namesake, a UK Liberal Democrat who maintains a blog, for some time, but it was nonetheless interesting to see Andrew Bartlett review his blog, and in particular, a more recent piece of his on the impact of blogging and the internet on politics:

I’ve mused a number of times about the potential impacts of blogging on politics and politicians, and the differences between various countries.

One longstanding blogging politician is Peter Black, a Liberal Democrat member of the Welsh Assembly, who has been at it for over five years. He has written an interesting piece on the impacts of blogging and the internet on politics, focusing particularly on Wales, but also the UK more broadly. The use of blogs by politicians in the UK is far more widespread than in Australia, but also different in tone and nature to those in the USA or those I’m aware of in some south-east Asian countries. If you’re interested in the general topic, it’s definitely worth a read.

Read more Andrew's post here and check out Peter Black AM here.