Law, Thoughts, Words

Quotable Quotes: too cool for stare decisis

2011-03-05T18:51:00.000-08:00

Griffith CJ is too cool for stare decisis: Doodeward v Spence (1908) 6 CLR 406, 412

[Regarding some very old cases on the status of a dead body as property:] I do not, myself, accept the dogma of the verbal inerrancy of ancient text writers. Indeed, equally respectable authority, of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft. But in my opinion none of the authorities cited afford any assistance in the present case. We are, therefore, free to regard it as a case of first instance arising in the 20th century, and to decide it in accordance with general principles of law, which are usually in accord with reason and common sense.

Words Gone Wrong: Proscribed, prescribed, or something

2011-03-03T08:13:00.000-08:00

I feel some sympathy for the people who made this mistake:

Successful applicants will have until last mail October 14, 2011 to claim their rebate. Rebates not claimed by that date in the proscribed manner will be forfeited.

(Emphasis mine.)

Proscribed, not prescribed. For those unfamiliar with the word, here's a definition of "proscribe", courtesy of the OED:

proscribe: verb [with object]
forbid, especially by law:
strikes remained proscribed in the armed forces

Therefore, if you replace proscribed with a synonym, such as forbidden, the last sentence reads:

Rebates not claimed by that date in the forbidden manner will be forfeited.

Oops.

The word they're almost certainly looking for is prescribed. If we again substitute a synonym - say required - we get the much more sensible sentence:

Rebates not claimed by that date in the required manner will be forfeited.

As I said, it's an easy mistake to make. Don't be the sucker who makes it next.

Update: Contempt of the CCC: Sentencing

2011-02-04T01:12:00.000-08:00

An update my post about the bikies convicted of contempt of the CCC: they've been sentenced, most to 2 years. The story's on WAtoday.

Allbeury, the guy who swore at the Commissioner, also swore at Martin CJ, and got three months extra for his trouble.

UPDATE: The judgment has been published.

Infographic: What the WA Supreme Court did in 2010

2011-02-02T05:56:00.000-08:00

With the help of the miracle of computers, I've created this chart of first-level catchwords of the cases decided by the WA Supreme Court (not including the Court of Appeal) in 2010, which gives an interesting overview of where the court spends its time. Mouse-over a section for more info. (Update: This does not work in the RSS feed - please click through to the blog see the chart.)

Topics the WA Supreme Court considered in 2010

[2010] WASC cases by catchword

Methodology
Catchwords
Catchwords are the way the court categorises issues decided upon in a case. For example, the catchwords for one case read:

Practice and procedure - Application for summary judgment - Whether the defendant has an arguable defence - Turns on own facts

Any case can have any number of sets of catchwords. For example, another case has the following two sets of catchwords:

Arbitration - Award of arbitrator - Application for leave to appeal on question of law - Whether various findings by arbitrator provide strong evidence of or amount to a manifest error of law

Arbitration - Application to set aside award for misconduct - Whether arbitrator breached rules of natural justice by determining an issue not pleaded - Factors governing the exercise of the discretion to set aside award

Construction of the chart

Every 2010 WASC decision was downloaded, and the keywords extracted.
The first catchword from each set was extracted (the part before the first dash). For example, the first catchwords from the above sets are "Practice and procedure", "Arbitration" and "Arbitration".
Similar catchwords were merged. For example, "Criminal law and procedure" was combined into "Criminal law". Another example: "Real property", "Indefeasibility", "Sale of land", etc., were all combined into "Property".
The merged catchwords were counted and the results charted above.

Notes
The merging process, and the catchwords themselves, are inexact. Therefore the results, while indicative, should not be relied upon for anything serious.

Twitter

2011-01-31T09:15:00.000-08:00

I don't know how it'll turn out, and I won't promise it as a permanent feature. But for now at least, I have a twitter account.

Now I just have to do something useful with it.

In Brief: "WikiLeaks lawyer vows to prosecute Palin if she goes to Australia"

2011-01-22T23:21:00.000-08:00

A lawyer associated with WikiLeaks has vowed that if Sarah Palin ever comes to Australia, he would begin a private prosecution against her for inciting violence against Julian Assange.

WikiLeaks lawyer vows to prosecute Palin if she goes to Australia: NPR « The Trial Warrior Blog

It's doomed to failure: the DPP can take over and discontinue any private prosecution. But it's still pretty hilarious.

Also, I didn't know private prosecutions were possible in Australia --- you learn something every day.

Someone, finally, to prosecute over the death of Mr Ward

2011-01-18T22:21:00.000-08:00

Seems WorkSafe has got the guts (and the law, and the evidence, presumably) to do something.

Worksafe to prosecute over death of Mr Ward - ABC News

A prosecution means that justice is seen to be done. More importantly, it reinforces that no-one is below the protection of the law; no-one is above its scrutiny. The protection of law is common to all, not just to the upright and the virtuous. And so it should be!

Whatever your thoughts on Mr Ward, the fact is that a man died. It is entirely appropriate that WorkSafe investigate whether that death was due to unsafe work practises, and prosecute if it sees fit.

I am aware that Mr Ward is no saint. But consider this: what if it had been your father in the van? Your brother? Your son? Even if they had a criminal record, even if they were being hauled off to face a drink-driving charge, wouldn't you want their death fully investigated? Wouldn't you want those responsible to face some sort of justice?

In Brief: Unauthorised use of your own computer = cracking?

2011-01-17T05:09:00.000-08:00

Seems there must be something in the water with regards to crazy applications of anti-cracking law.

I was somewhat amazed to find lawyers for Sony arguing that (in the US at least) it is cracking to use your own computer in a way other than authorised. (Post on The Volokh Conspiracy, hat tip to Overlawyered)

Sure, it rightfully wins the "Silliest Theory of the Computer Fraud and Abuse Act" award, but it highlights again the dangers of over-broad computer crime law.

Breaching an Acceptable Use Policy a Criminal Offence

2011-01-16T09:22:00.000-08:00

We generally expect that 'hacking' --- illegally gaining access to the computer systems of another --- would be a criminal offence. (Out of deference to the computer community, 'cracking' will be used for the remainder of the post.) And we generally expect that breaking the acceptable use policy at work is something deserving --- at most --- of being fired.

However, at the core of both is the unauthorised use of a restricted-access computer system. And that is an offence under the Criminal Code (WA). Section 440A(2) reads:

(2) For the purposes of this section a person unlawfully uses a restricted‑access computer system —

(a) if the person uses it when he or she is not properly authorised to do so; or

(b) if the person, being authorised to use it, uses it other than in accordance with his or her authorisation.

UPDATE: To clarify, a "restricted-access computer system" is nothing special. It's defined in the Code as:

a computer system in respect of which —
                 (a)    the use of a password is necessary in order to obtain access to information stored in the system or to operate the system in some other way; and
                 (b)    the person who is entitled to control the use of the system —
                              (i)    has withheld knowledge of the password, or the means of producing it, from all other persons; or
                             (ii)    has taken steps to restrict knowledge of the password, or the means of producing it, to a particular authorised person or class of authorised person;

So breaching an AUP could, at least conceivably, land you in jail: ss (2)(b).

But would it ever happen?
Yes, and a conviction was just upheld in the WA Supreme Court --- Giles v Douglas [2011] WASC 14.

Ms Giles was a WA police officer. While working in the Northern Territory some years ago, she met a "RA", a police officer, and they became friends. RA separated from his wife around 2002, and RA's wife took custody of their children and moved to WA. RA's wife had been abused as a child, and had drinking and domestic violence issues. Ms Giles moved to WA in 2004.

On 27 March 2009, Ms Giles was contacted by RA. He told Ms Giles that his wife had just died, and as such, he had concerns about the children. Ms Giles set about making inquiries about the children.

Some of the inquiries she made were searches of the police database. Upon logging into this database, all users were presented with the following warning:

Information contained within the Western Australia Police Computer Systems is confidential, must not be disclosed to unauthorised persons under any circumstances and not be accessed for personal reasons. (emphasis added)

This is where she came unstuck, and ended up in court. She was charged under section 440A. She argued that accessing the database in these circumstances was a proper part of her role --- that she would have done the same for "the local butcher", if he had come in with the same story. She also argued that her supervisor had authorised the searches, or alternately that she had an honest and reasonable belief that she was authorised to do the searches.

The Magistrate didn't buy it, and Ms Giles failed in her appeal to the Supreme Court. To be clear, Ms Giles wasn't convicted for breaching police secrecy, or improper disclosure of information --- she was convicted for common cracking. She used the restricted-access system other than in accordance with her authorisation: s 440A(2)(b).

So What?
The decision is fully in accordance with the law --- although whether it's the right decision on the facts is slightly more open. Either way, it highlights the dangerous state of computer offences in WA law. The decision would seem to stand for the proposition that a breach of a contractual or workplace agreement regarding computer use amounts to criminal conduct.

That's casts the net of conduct potentially caught by the section very, very wide. For example, as well as forbidding cross-posting and unlawfully downloading copyrighted material, the acceptable use policy governing my 3G wireless modem contains the following clause:

The service is provided for interactive use. However, if automated programs or programs that maintain a persistent connection to a remote service are used, they must only be used when you are physically present at the computer. These activities include (but are not limited to) automated file downloading, IRC ‘bots’, continuous streaming media and peertopeer file sharing applications. (emphasis added)

So if I set the latest set of system updates downloading overnight, I'd be breaching the AUP. I'd then be accessing the restricted-access computer system belonging to my ISP in excess of my authorisation.

Would that make me a cracker? No.

Would that make me liable to criminal sanctions? It would seem so.

Is that good law?

Words Gone Wrong: "and/or" ambiguous

2011-01-08T20:10:00.000-08:00

Those who deal with the law quickly become obsessed with words.

One of the move overused words (or is it two words?) is "and/or". Somehow, using it has become a bit of an obsession, with people putting it in anywhere they think possible. This is not always a good thing --- not only does it sound clumsy, but it can occasionally obscure more than it reveals.

Take, for example, this piece of text, from the website of a large Australian bookstore that also sells computers.

Quantity limits apply: one desktop and/or one notebook per academic year.

Is one allowed to buy (a) one desktop and one notebook, for a total of two items; or, (b) one desktop or one notebook, for a total of one item? Either the "and" or the "or" is unnecessary and incorrect, but (short of telepathy) it's impossible to say which one.

The moral of the story is: make sure you're clear on the meaning of your sentence before shoving in an "and/or"!

Wouldn't Happen Here: driving conviction overturned on a drafting error

2011-01-03T08:24:00.000-08:00

Only in America. (Full story at the Washington Post.)

Read (carefully!) this section of a Virginian law.

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

Spot the problem? On it's face, it says a driver must stop a stopped school bus. It's missing an at; probably between "direction," and "any".

There once was an "at", but it was accidentally removed by an amendment. And that two-letter missing word was enough for one very lucky driver to have a reckless driving conviction overturned. The appeal judge, whilst wondering "if there's some latitude" in reading the law, ultimately held that "There probably isn't, because it's a criminal statute." As such, he quashed the conviction.

Now, there's some debate over whether that was the correct decision under US law. But here's why the question would never have come up in WA. The Interpretation Act 1894 (WA) provides the courts with very clear rules about how they are to interpret statutes. Section 18 provides:

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.

There is no distinction here between criminal law or civil law --- it applies to all written law. Clearly the construction preferred by the court does not promote the object of road traffic legislation.

Additionally, a court may also refer to extrinsic material in some circumstances. Extrinsic material is material not part of the Act the court is trying to interpret, such as parliamentary debate, or explanatory memorandum. Extrinsic material may be used either to confirm the ordinary meaning of a provision, or to determine the meaning of a provision when ---

s 19(1)(b) ...

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.

The construction preferred by the US court would easily be described as unreasonable. So an Australian court would have no problem finding some material explaining what the fateful amendment was supposed to do, and doing that.

So, if you find a missing preposition in an Australian law, don't bet on being able to rely on the strict, literal interpretation of the law.

Do criminals have 'human rights'?

2010-12-29T10:16:00.000-08:00

According to the UK Court of Appeal, applying the UK Human Rights Act, yes.

Al Hassan-Daniel v HM Revenue and Customs [2010] EWCA Civ 1443 is a decision about the rights of a person who had swallowed, and was attempting to smuggle, 116 packages of cocaine. The decision was only on a preliminary point and not a full trial --- indeed the court held "grave doubts" about the future success of the action. A full summary can be found at the UK Human Rights Blog. (This post is a shameless reblog.) [Update: See also UK Law Society Gazette - it's a short, thorough, less opinionated case note.]

The decision is notable because generally in the UK --- and in other common law countries, such as Australia --- criminals are prevented from gaining legal benefit from their criminal behaviour. However, the court held that this criminality defence did not apply to human rights.

The comments of the court on the issue bear repeating verbatim. Emphasis mine.

That such harm or detriment may have happened to an individual whose own merits are severely tainted is not, it is argued, relevant. Human rights are not just for the virtuous. ...

It is one thing to discountenance the manipulative use of a ... right for a purpose for which it was not meant; it is another to create a gateway to human rights which only the virtuous may enter.

I believe it's a good decision, and the right one. To quote the UK Human Rights blog post:

A person’s criminal behaviour should not act as a green light for the state to treat them according to standards which would otherwise be unacceptable or negligent.

However, I accept that some people believe otherwise. (Links, from a quick search, are in descending order of comprehensibility/sanity.)

Either way, given the lingering debate about the desirability of formal legal protection of human rights in Australia, it's an issue which needs some serious thought.

In (very) brief: ex delicto --- a webcomic of law and nonsense

2010-12-27T21:41:00.000-08:00

Amusing.

Pity it isn't being updated.

In Brief: Reporting Human Rights, or something...

2010-12-27T10:29:00.000-08:00

Philip Lawrence is a convicted murderer who lives in the UK. The government attempted to deport him to his native Italy; a move which was blocked by a British court.

The Telegraph newspaper argued that this was indicative of problems in UK Human Rights law. However, the UK Human Rights Blog argues that the case was considerably more complicated than the Telegraph suggested, and "human rights" was not the central issue of the case.

Australian media is blighted by the same disease --- simplistic or just plain wrong reporting of legal issues.

(The blog also has other examples of incorrect reporting in the UK, if you care to browse.)

Contempt of the CCC: CCC v Wallace, and others

2010-12-21T21:27:00.000-08:00

The Supreme Court decisions in CCC v Wallace [2010] WASC 390, Smith [2010] WASC 396, Silvestro [2010] WASC 398, and Allbeury ([2010] WASC 399), delivered orally on the 13th, have been published.

Coverage of the decision can be found on ABC News Online.

The crux of the CCC's complaint was that the four had refused to answer questions. Mr Allbeury was also accused of insulting the Commissioner.

The primary judgment is that of Wallace, where the lawyers raise a number of mostly technical arguments, none of which were accepted. Smith, Silvestro, and Allbeury are shorter judgments incorporating the Wallace decision.

The first argument was that the certificate issued by the CCC to begin the proceedings went "beyond that which is permissible within the scope of s 163(1) of the CCC Act" because it did more than merely state 'the act or omission' that is said to constitute the contempt, taking "the document beyond the scope of a certificate which is valid to confer jurisdiction upon the court". Martin CJ held that, taking this view to the logical conclusion, it would make it impossible to include anything other than a bald description of the conduct alleged to constitute contempt --- it would not even be permissible to include the question asked. Rather, "the proper scope of the certificate will be determined by reference to the scope of the contempt alleged.

Furthermore, even if the certificate was technically irregular, the irregularity did not prejudice the accused, so the irregularity would be waived.

Secondly, it was argued for the accused that the CCC "failed to discharge the burden of proof by failing to prove the validity of what is described as an 'extraordinary powers finding' made by the Commissioner". A technical discussion of the Act follows, ultimately concluding that it was not open to a person summoned to appear before the CCC to hold off challenging the validity of extraordinary powers until they are called up for contempt charges --- they would be expected to make that challenge before the CCC first. The "colateral challenge" therefore failed.

The other cases proceeded upon similar lines.

On the less serious end of the spectrum, one of the more humorous submissions made by Mr Allbeury's counsel, regarding the alleged insult of the Commissioner, was dealt with in [14]-[15] of that decision. (Emphasis added)

... [I]n answer to 14 separate questions posed by the Commissioner and counsel assisting, ... Mr Allbeury answered by telling the Commissioner to 'fuck off' or to 'get fucked'.

It is said that I should conclude that that evidence does not constitute a contempt by insulting conduct. The proposition, it is said, is that mere abuse does not of itself amount to contempt of court. It seems to me that the difficulty with that submission is that the course of conduct identified by the certificate and which I have seen depicted in the DVD was not mere abuse; it was an abusive, derogatory and contemptuous response ...

Mason v Methodist Ladies College

2010-12-21T20:01:00.000-08:00

Mason v Methodist Ladies College --- the case of X, an autistic child who was not allowed to undertake kindergarten at MLC --- has been settled with MLC issuing an apology to the child and her parents, admitting fault. [Story on PerthNow, including the apology, and also ABC News Online]

The Mason's complaint was first brought before the Human Rights and Equal Opportunity Commission (HREOC). A case was then filed in the Federal Magistrates Court, alleging a breach of the Disability Discrimination Act 1992 (Cth) --- specifically, the Disability Standards for Education 2005 (Cth) --- as well as breach of contract. Orders were also sought under s 87 of the Trade Practices Act 1974 (Cth).

Lucev FM ordered that proceedings be transferred to the Federal Court ([2009] FMCA 570), as they were complex and touched on an important issue of law.

The settlement concludes those proceedings.

As the settlement is confidential, the lack of reported decisions under the Standards looks set to continue.