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:

 

The Australian Constitution on your iPhone or iPod Touch

Ben Kremer (who blogs at Lawfont) has created an iPhone and iPod Touch application that contains the text of the Australian Constitution.  You can download the free application at the iTunes Store here.

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.

Copyright Paradox

Over at The Volokh Conspiracy  Neil Netanel has been guest blogging on his new book Copyright's Paradox.  Here are some of his posts:

• Online Journalism versus Newspapers
• Copyright's Paradox
• How Copyright Burdens Speech
• Copyright and the First Amendment
• Blood Libel or Just Libel?

 For anyone interested in the tension between copyright law and free speech these posts are essential reading.

Good question

Daniel Solove asks why is there no stare decisis for methods of interpretation?:

The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?

Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?

Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?

Is there a good argument for why stare decisis should not apply to interpretative method?   

Read more here.

Roundtable Seminar - Reforming the Constitution

Today I'm participating in a Roundtable Seminar on Reforming the Constitution at Parliament House in Canberra.  For more details see my earlier post here.  If you're interested in the topic, you can watch the Roundtable as a webcast here.

Blogging will resume tomorrow.

Roundtable Seminar - Reforming the Constitution

This week on Thursday 1 May I'll be participating in a Roundtable Seminar on Reforming the Constitution at Parliament House in Canberra.  This is the media release:

Committee roundtable to discuss constitutional reform 
Federal-State relations, a constitutional preamble and issues of citizenship will be on the agenda at a roundtable on constitutional reform on Thursday 1 May 2008 at Parliament House, Canberra. 

Chair of the House of Representative’s Legal and Constitutional Affairs Committee, Mark Dreyfus QC, said the aim of the roundtable is to explore the current debates surrounding constitutional reform.

“The need for reform of the Australian Constitution is a persistent theme in academic, political and public debate, and some good ideas were produced by the governance group at the 2020 summit last weekend,” Mr Dreyfus said. “The Committee is hoping to build on some of these ideas through the roundtable, giving us a clearer idea on areas in which change is feasible in the near future“.

Issues to be discussed on the day include:

• the process for amending the constitution;
• election terms and qualifications of parliamentarians;
• federal-state relations in relation to constitutional powers; and
• the inclusion of a constitutional preamble.

As well as the Committee Members, participants will include Professor Larissa Behrendt, Peter Black, Professor Tony Blackshield, Professor Hilary Charlesworth, Professor Greg Craven, Professor David Flint AM, Peter Hanks QC, Professor Michael Lavarch, Professor Kim Rubenstein, Professor Cheryl Saunders, Ms Khatija Thomas, Ms Anne Twomey, Professor George Williams, and Professor Leslie Zines.

The roundtable will be held in Committee Room 1R4, 1st floor, Parliament House, Canberra on Thursday 1 May 2008 from 9.00am - 5.05pm.

Members of the public are welcome to attend the roundtable discussions, or listen to the broadcast on FM 97.1 in Parliament House, and via webcast on the APH website: http://webcast.aph.gov.au/livebroadcasting/

More details, including the Roundtable program and the focus questions that will be guide the discussion, is available here.  If you have any thoughts on these issues or the focus questions, let me know by leaving a comment or send me an email: p2.black@qut.edu.au.

Telstra loses court challenge to ACCC

The High Court today handed down a rare unanimous joint judgment dismissing Telstra's constitutional challenge to the ACCC.  Read the judgment here.  This is how The Australian summarised the decision:

THE High Court of Australia today threw out Telstra's constitutional challenge against the competition watchdog's powers to set prices for access to its networks by rivals.

Telstra launched the challenge in January 2007, after the Australian Competition and Consumer Commission ruled that the telco should give its rivals access to certain parts of its network for $3.20 a month.

"The telecommunications access regime set out in the Trade Practices Act did not amount to an acquisition of Telstra's property," the High Court said in its judgment.

The decision was unanimous and the court ordered Telstra to pay costs.

Shares in Telstra fell 1.3 per cent to $4.49 in early trade, as the benchmark S&P/ASX200 index gained 0.5 per cent.

Telstra had claimed that the ACCC's actions force it to give rivals access to its network, which it believed breached the Constitution.

The Constitution prevents the Government from taking property without providing "just" compensation.

"The rights in Telstra's assets were rights to use the assets in connection with the provision of telecommunications services, but those rights were always subject to a statutory access scheme which permitted other carriers to use the assets," the court said.

"Telstra had always owned and operated the assets within a regulatory regime by which other carriers have the right to connect their facilities to Telstra's network and to obtain access to Telstra services."

The challenge required the court to rule that the Trade Practices Act was in breach of the Constitution because it gave the ACCC price-setting powers.

Read more here.

Copyright and the First Amendment

Techdirt reminds us that the apparent tension in the US between copyright law and free speech is unlikely to be resolved by the courts any time soon:

While the Supreme Court has been gleefully taking on more and more cases concerning patent law, it seems that it's not yet ready to revisit some important discussions around copyright law, since the Eldred case back in 2003. Late last year, we updated you on a few cases that have used the specific wording of the Eldred decision to argue that recent copyright law changes were violations of the First Amendment. In Eldred, the Supreme Court had ruled that it was only a First Amendment issue if changes in the law changed the "traditional contours of copyright protection." It's that clause that some other cases have been challenging lately. As we noted in that last post, there appeared to be a split among the different circuit courts concerning whether recent copyright changes did, in fact, change the traditional contours of copyright protection. That, it seemed, was actually a good thing, because different circuits with different readings is the sort of thing that attracts the Supreme Court's interest.

Unfortunately, it appears that the Supreme Court just isn't all that interested yet. Larry Lessig has the update, where he notes that the Supreme Court has refused to take the case so far ... As Lessig notes, this is far from over, but it appears that the Supreme Court won't be settling this matter any time soon, which is a bit unfortunate.

Read more here.

"Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right"

An interesting article on access to digital media as a First Amendment Right:

Travis, Hannibal, "Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right" . Hofstra Law Review, Vol. 35, p. 1519, 2007 Available at SSRN: http://ssrn.com/abstract=1025474

Abstract: In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.

This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.

Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.

US Supreme Court won't hear appeal over 9/11 poem

From CNN:

The Supreme Court refused Tuesday to hear an appeal from poet Amiri Baraka, whose controversial poem about the September 11, 2001, terrorist attacks led to the elimination of an honorary post he held as New Jersey's poet laureate.

The justices declined without comment to intervene in Baraka's lawsuit against current and former state officials who he says retaliated against him for his public reading of "Somebody Blew Up America."

At issue was whether state officials had "legislative immunity" from such suits, even when they targeted an individual for special treatment, as Baraka alleges.

Baraka, a self-described "poet icon and revolutionary political activist" was named poet laureate in 2002 by then-Gov. James McGreevey, on the recommendation of the state's Council for the Arts. The post was designed to encourage poetry by having the honoree stage at least two public readings a year. The honorarium paid $10,000 a year for a two-year term.

Two months after his appointment, Baraka -- a longtime resident of New Jersey -- read the poem in question before a local arts festival.

Among the poem's lines:

"Who knew the World Trade Center was gonna get bombed

"Who told 4000 Israeli workers at the Twin Towers

"To stay home that day

"Why did Sharon stay away?"

State officials were outraged, but under the law, McGreevey could not fire the poet from his appointed post. Baraka refused the governor's request to resign, saying his work was neither anti-Semitic nor racist.

McGreevey then supported eliminating the poet laureate position, which the Legislature did in July 2003.

State officials denied the poet's claims that they "commenced a concerted campaign" to target Baraka, who turned 73 last week. Much of the case turned on specific things McGreevey and other officials may or may not have done.

In an open letter after the vote, Baraka called it a "confirmation of the ignorance, corruption, racism, and criminal disregard for the U.S. Constitution."

Baraka's Web site refers to the case, saying, "The recital of the poem 'that mattered' engaged the poet warrior in a battle royal with the very governor of New Jersey and with a legion of detractors demanding his resignation as the state's poet laureate because of "Somebody Blew Up America's" provocatively poetic inquiry (in a few lines of the poem) about who knew beforehand about the New York City World Trade Center bombings in 2001."

In its 2-1 ruling in March, the 3rd U.S. Circuit Court of Appeals concluded, "Baraka, like any person, was free to speak his views. But he had no protected legal interest in the maintenance of the position of poet laureate of New Jersey."

The judges also said, "Baraka's vague references to the conduct of the unknown defendants [state officials] are insufficient to constitute allegations" made by him that he was personally targeted for reprisal.

The case is Baraka v. McGreevey (07-79).

Read more here.

Analysing comparative constitutional law

Anyone interested in constitutional law should an insightful article by Professor Cheryl Saunders on comparative constitutional law.  Here is the abstract:

Cheryl Saunders, "The Use and Misuse of Comparative Constitutional Law" Indiana Journal of Global Legal Studies, Vol. 13, 2006 U of Melbourne Legal Studies Research Paper No. 274
Abstract: http://ssrn.com/abstract=1025775

Abstract: This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions. The first is that, as a generalization, other common law countries do not share the concern about the legitimacy of reference to comparative case law that manifests itself in the United States. The second is that, as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout the article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s, dealing with the implied constitutional freedom of political communication, is used as a case study, to give the arguments context and greater substance.

Funeral speech

Columbia Law School Professor Michael Dorf asks does the First Amendment in the US protect highly offensive speech at a funeral and directed at the deceased?

Last week, a federal jury in Maryland ordered the Westboro Baptist Church, its leader Fred Phelps, and several other church members, to pay $10.9 million in compensatory and punitive damages to Albert Snyder, the father of a Marine who was killed in Iraq. Snyder sued after the defendants displayed extremely offensive signs near the site of his son's funeral, and posted defamatory messages about him on their website.

Nearly everyone in the United States--regardless of their religious views or their views about the war in Iraq--can come together in reviling the defendants' message. The Westboro Baptists believe that God is punishing America for tolerating homosexuality by killing our troops fighting overseas. Thus, the defendants have traveled around the country with signs like the ones they displayed near the site of Matt Snyder's funeral: "Thank God for Dead Soldiers" and "God Hates Fags."

The defendants claim that the civil verdict against them violates their First
Amendment rights and have vowed to appeal. In this column, I will assess the merits of their First Amendment argument. I conclude that efforts to restrict protesters at funerals survive constitutional scrutiny, and thus that the recent verdict may well pass muster under constitutional review.

Read more here (from FindLaw's Writ).

"The High Court and the Constitution in 2006"

Professor Leslie Zines has posted to SSRN an examination of the High Court's constitutional decisions during 2006. Three factors are considered, namely federalism, original intent, and policies, values and consequences.  Download the paper here.

What is TV indecency may end up before the US Supreme Court

USA Today has a detailed feature story on whether the US Supreme Court may enter the debate on indecency standards on US television:

The dirty words that started the ruckus were fleeting, but their consequences for television have been long-lasting.

At the December 2002 Billboard Music Awards, Cher waved her "Lifetime Achievement" trophy and said, "People have been telling me I'm on the way out every year, right? So (expletive) 'em." At the Golden Globes the next month, U2 lead singer Bono accepted an award by saying, "This is really, really (expletive) brilliant." At another Billboard Awards in 2003, TV star Nicole Richie used expletives as she joked about removing cow manure from a purse.

As the Federal Communications Commission was reviewing viewer complaints about the incidents, Janet Jackson's breast was exposed during a Super Bowl halftime show on Feb. 1, 2004. The next month, the FCC, in an unprecedented move, said that even a one-time use of vulgarities associated with "sexual and excretory functions" violated indecency standards. It cited NBC for Bono's remarks, then Fox Television for those by Cher and Richie.

The FCC's stance has inspired a legal battle — now on the Supreme Court's doorstep — over how rigorously the government can police what's on TV.

The larger questions surrounding the dispute: As broadcast TV pushes the limits of sexual content to compete against its racier and unregulated cable competitors, should an occasional expletive be allowed? Or can the FCC completely stamp out what it views as verbal smut on broadcast television, in the name of family-friendly programming?

The Supreme Court soon will decide whether to wade into the dispute and, for the first time since 1978, dictate indecency rules for the airwaves. No matter what the court does in the case pitting Fox against the FCC, the battle could lead to new standards for broadcast networks.

Already, the FCC's tough stance could be changing what Americans see on live TV ...

Read more here.  What is arguably most concerning about this trend is the potential chilling effect on what can currently be shown on US television.  Again, from USA Today's report:

The last time the Supreme Court reviewed the FCC's power to curb indecency, in 1978, it rejected a First Amendment challenge to limiting the hours that broadcasters could air "indecent" material.

The 1978 case arose over a New York City radio station's airing of comic George Carlin's "seven dirty words" monologue.

Carlin repeated seven words that referred to various sexual and excretory functions during a 12-minute routine that aired at 2 p.m. on Pacifica Foundation's FM station.

The court upheld the FCC's policy sanctioning the broadcast because it occurred between 6 a.m. and 10 p.m., when indecency is forbidden for radio and broadcast television.

In its decision, the court said it was not ruling on the broadcast of "an occasional expletive."

Today, the FCC's tougher approach casts uncertainty across network programming.

Read more here.

A good week for user generated porn sites

Duncan Riley at TechCrunch reports on a potentially controversial decision from the Sixth Circuit for the US Court of Appeals:

Creators of porn websites have been set free of onerous confirmation of age record keeping laws, after the Unites States Court of Appeals found that the law requiring the keeping of these records was unconstitutional.

Previously, porn websites hosted in the United States had to keep records confirming that all performers shown on their sites were of a legal age. More recently there has been some suggestion that these requirements would be extended to all sites showing porn, potentially destroying sites such as YouPorn.com and Pornotube.com (both NSFW) who rely on user generated content and therefore would not have access to records.

A majority ruling of the Appeals Court found that “the purpose, and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record keeping important in battling all of it, without respect to the creator’s motivation” in that it impedes free speech rights.

Law.com notes that “the decision is a significant First Amendment ruling that directly implicates the controversial subjects of legal adult pornography and illegal child pornography.”

Read more here.  Techdirt's Mike Masnick also chimes in:

Just last week, Wired had an article looking at how a particular section of law regulating adult content could potentially hurt the growth of "user generated" porn sites. The law in question required any "publisher" of adult content to obtain and permanently keep records proving that the "performers" in question were of legal age. Obviously, the goal here is to prevent child porn -- but many felt that such a rule was incredibly burdensome on those who were producing legitimate adult content, and it was even worse for "user generated" sites that would now require such information from every participant. Now, Slashdot points out that the Sixth Circuit Court of Appeals has found the law to be unconstitutional, as it violates the First Amendment. ... The full ruling (pdf) is an interesting read, but the crux of the argument is that while preventing child porn is a noble goal, if it ends up putting a burden on plenty of legitimate expression, then it's a clear First Amendment violation. Many people may not think this is a big deal, as they don't care for adult content or don't have any problem with having it heavily regulated -- but as the court notes, the right for people to remain anonymous is an important part of the First Amendment. Weakening that right -- even if for a reasonable end goal -- starts you down a slippery slope.

Read more here.

Colbert and campaign finance laws in the US

Although I and many others think Stephen Colbert's intention to run for President in South Carolina not only very funny but inspired marketing, a couple of US bloggers have begun to consider the legal implications of that decision on Comedy Central (and therefore Viacom) insofar as compliance with US campaign finance laws.  The issue turns on whether Viacom is able to rely on the media exemption for Colbert promoting his candidacy on The Colbert Report.

Rick Hasen of the Election Law Blog summarises the issue succinctly:

Here's the relevant law. A corporation cannot fund the express advocacy of a candidate for federal office out of its treasury funds. So General Motors could not run a newspaper ad saying "Vote for Colbert for President." The same rule applies to labor unions. The funding has to come from its political action committee.

But there's an exemption in the law for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."

Read more of his analysis here.  Hasen is leaning to the conclusion that the exemption doesn't apply, but Allison Haye, blogging at Sketpic's Eye, thinks the exemption would apply.  Read Haye's analysis here.

In any event Lost Remote is reporting that Comedy Central is taking Colbert's bid seriously:

Well, at least serious enough to have the lawyers look into it.  Meanwhile today, Colbert has surpassed the 1 million friends mark on his “1,000,000 Strong For Stephen T. Colbert” Facebook group.  So who’s behind this strategic effort to engage potential voters? A 16-year-old high school student named Raj.  Now there’s even a poll suggesting that Colbert could be a presidential frontrunner in a month.  What is this, Man of the Year?

Read more here.

And there even polls suggesting that he is making an impact, as Editor & Publisher reports:

Less than a week ago, shortly after he announced for president, Stephen Colbert was favored by only a little more than 2% of Democrats as the favorite for the nomination. Now, a Rasmussen Report national telephone survey has found that he gains 13% of voters in a matchup with Rudy Giuliani and Sen. Hillary Clinton.

With former Sen. Fred Thompson substituted for Giuliani, the host of Comedy Central's Colbert Report still got 12%. 

If he keeps gaining over 10% a week, Colbert should be leading the field before November is out.

Rasmussen explained, "Colbert does particularly well with the younger voters most likely to be watching his show and therefore most aware of his myriad presidential-like qualities. In the match-up with Giuliani and Clinton, Colbert draws 28% of likely voters aged 18-29. He draws 31% of that cohort when his foes are Thompson and Clinton. In both match-ups, Colbert has more support with young voters than the GOP candidate."

Warning to other candidates: The poll was taken Oct. 19-21 -- mainly completed before Colbert's breakout appearance on "Meet the Press."

...

Another Huffington Post commenter asked, "They're including him in the polls???" But a third observed: "I know that Colbert's candidacy is a joke, but the fact remains that he is the only "candidate" to directly confront George Bush and the media elite. I think that's why he is gaining support. Even though he is a comedian, he has heart, brains and courage. That separates him from the rest of the pack."

Read more here.

Justice Thomas and the First Amendment

Timed to coincide with the release of Justice Clarence Thomas’s autobiography, the First Amendment Center has published an online symposium concerning Justice Thomas’s First Amendment jurisprudence.  Read it here.

Open letter to WIPO

Via Michael Geist: IP Watch posts a open letter to the WIPO Secretary General that demonstrate the enormity of the problems at the UN institution.

An unconstitutional acquisition of property?

John Quiggin posed an interesting question last week on the constitutionality of the Northern Territory National Emergency Response Act 2007 (Cth):

One of the striking features of the government’s intervention in Aboriginal communities, embodied in the Northern Territory National Emergency Response Act 2007 was how rapidly the ostensible motive of intervening to tackle social problems, most notably child abuse, was swallowed by the ideological push to refashion property rights, taking over land owned by Aboriginal communities, with the presumed goal of turning it into individualised private property

A question that’s come up a couple of times and to which I haven’t seen an answer is how this squares with the Constitutional requirement for “just terms” in acquisition of land and other property, and also the statutory requirements of the Lands Acquisition Act (unless these have been overridden by the latest legislation). Is there anyone with a legal background who can comment on this?

At Club Troppo, Ken Parish has posted an excellent and comprehensive response to John's question.  Read it here.

While I agree with Ken's constitutional analysis, some of the comments on both Club Troppo and John Quiggin's blog about what this means for the rights (or lack of thereof) of residents of the territories - in contrast to the rights of residents of the States -  are forgetting two important aspects of s 51(xxxi) of the Constitution. 

First, the Commonwealth Executive enjoys a power to acquire property unencumbered by the requirements of just terms (see Johnston Fear and Kigham & The Offset Printing Co v Commonwealth (1943) 67 CLR 314); although this seems to be limited to national emergencies and some would argue that this intervention is in response to a national emergency) or wartime (see Clunies Ross v Commonwealth (1984) 155 CLR 193 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

Second, s 51(xxxi) does not appy the States; that is, the States can acquire property compulsorily without providing just terms (see Pye v Renshaw (1951) 84 CLR 58).  Furthermore, in Durham Holdings Pty Ltd v New South Wales (2000) 205 CLR 399, the High Court held there was no "deeply rooted right" to receive compensation for property acquired under State legislation.

I make these two points simply because I think it is worth remembering them when discussing the constitutional issue, as distinct from the policy or political aspects to this debate.

Freedom of the Press 2.0

The author of The Utube Blog, Professor Edward Lee, has an interesting article on free speech, copyright and Web 2.0:

Lee, Edward, "Freedom of the Press 2.0" (August 2007). Ohio State Public Law Working Paper No. 97 Available at SSRN: http://ssrn.com/abstract=1008877

Abstract: In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders have increasingly invoked copyright law to regulate directly - indeed, even to prohibit - the manufacture and sale of technology that facilitates the mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable, the expansion of copyright law to regulate - and, in some cases, to prohibit -technologies raises a troubling question. Can the government regulate under copyright law technologies that facilitate the dissemination of speech, consistent with the First Amendment? If so, are there any limits to what the government can do? Or does copyright law have constitutional carte blanche to regulate technologies, without any First Amendment scrutiny? Because copyright law, dating back to the first Copyright Act of 1790, traditionally refrained from regulating technologies directly, these questions were scarcely considered before. But, today, these questions have vital importance as copyright law and other laws proposed in service of copyright holders contemplate even greater regulation of emerging technologies that are revolutionizing the ability of individuals to create expressive content on the Internet, in the “Web 2.0” culture of user-created content. However, despite their importance, these questions have escaped attention in legal scholarship. This Article attempts to answer these questions by tracing the historical development of the “freedom of the press” that led to the Framers' inclusion of the concept in the First Amendment. My core thesis is twofold: (i) the Framers understood the freedom of the press as the freedom of the printing press - a speech technology - to be free of intrusive governmental regulation, including restrictions on technology imposed under copyright law; and (ii) today, the Sony safe harbor operates as a “First Amendment safeguard” within copyright law that is designed to protect the freedom of the press and the development of speech technologies. All future attempts by Congress to regulate speech technologies under copyright law must answer to the Free Press Clause or the Sony safe harbor.

"Torture Porn"

From FindLaw's Writ:

FindLaw columnist, attorney, and author Julie HIlden discusses the idea of "torture porn," frequently invoked in relation to recent movies such as "Hostel II" and "Captivity." Hilden argues that, from a free speech perspective, it's unfortunate that the recent tendency to equate depictions of sex and violence in movies -- as the phrase "torture porn" does -- has sparked a crackdown on depictions of violence, rather than relaxing the regulation of depictions of sex. She also contends that if one looks more carefully at movies like "Hostel" and "Hostel II," they are hardly promoting violence; indeed, their strong heroes and heroines fight against violence, and the villains who use violence are depicted as weak and pathetic. Finally, she questions whether the "clean" violence of shoot-'em-ups should be preferred over the more realistically gory violence of such films.

Read it here.

Even the High Court is interested in Paris Hilton

Although the following excerpt from a recent High Court transcript has already been noted by several bloggers (including Legal Eagle and Atticus), I thought it was worth reproducing again. 

By way of background, the High Court case was Roach v Electoral Commissioner & Anor, a challenge to the validity of certain provisions of the Commonwealth Electoral Act 1918, specifically those that prohibit sentenced prisoners from voting.

MR MERKEL: ...  I was going to say under section 93(8AA) the amending legislation defines “sentence of imprisonment”.  That is at page 7.  This was also a significant amendment because prior to this amendment there was a question about whether home detention or parole would be caught by the disqualification.  So this amendment made it clear that you had to be in detention on a full-time basis.  So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.

Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with - - -

KIRBY J:  So Paris Hilton would now be disqualified, but last week for a short time she would have been entitled to vote?

MR MERKEL:   Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.

KIRBY J:   I just wanted you to know that I follow these things.

Read the rest of the transcript here, here and here.

If you are interested in the substantive matters raised by this case, The Law Report on ABC Radio National had a good discussion of the case this week.  You can read the transcript or download the audio here.

The boundaries of free speech

This post on Concurring Opinions made me realise how different the free speech culture in Australia is compared with America:

The Pennsylvania Supreme Court, in a recent decision -- Commonwealth v. Long, --- A.2d ----, 2007 WL 1574157 (Pa. 2007) -- concluded that the First Amendment requires public disclosure of jurors' names. This is an issue that the U.S. Supreme Court has not yet addressed. According to the court:

First, with respect to the value of openness in criminal trials, a trial by jury and public access to criminal trials serve the same function-ensuring the fairness of the judicial process. From the earliest days of this country, it was believed that the jury was the best way to assure a fair trial. See The Federalist No. 83, at 545 (Alexander Hamilton) (The Modern Library ed.) (“[The jury trial] is a valuable check on corruption”). Likewise, public scrutiny of the criminal justice system enhances the quality and safeguards the integrity of the factfinding process, “with benefits to both the defendant and to society as a whole.” Openness also fosters an appearance of fairness, which increases public respect for the criminal justice system as a whole. “And in the broadest terms, public access to criminal trials permits the public to participate in and serves as a check upon the judicial process-an essential component in our structure of self government.”

Read it here.  It may be protected speech in America, but revealing the identity of a juror in Australia would be a criminal offence ...

Is that binding?

It's not often I get to scoop David Starkoff, but here is an amusing moment in the High Court from oral argument in Santos Limited v Chaffey:

MR BENNETT: We would submit that that is simply something that is so far from the concept of acquisition of property, even though that may be its apparent affect on a particular person, that it is outside the prohibition. To argue to the contrary and to say that one looks only at the effect on the particular person, is to pick up – there is only one case I know which picks up that argument and that of course is The Castle where it was argued that the nature of one’s home was such that it was something the acquisition of which was in a different category because of its significance to the owner. The argument succeeded in that case, but the case is not generally regarded as authoritative for that proposition. Those, your Honours, are the submissions for the Attorney-General.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Walker?

(Hat tip: Ryan.)