Business men, they drink my wine… A legal analysis of a joke from my grandmother

My grandmother sends me a great many e-mails.  It’s often quite useful as I can keep an eye on the sort of alt-right nonsense that somehow finds a home amongst our elderly.  I think of it as a window into the Grey Supremacist movement across the Anglosphere: insane conspiracy theories about how somebody, somewhere is getting money that should instead be going to retirees.

But she also sends me jokes and riddles.  Here’s one I received today:

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And you should know that in my heart you fill every corner… ASIO Legislation Amendment Bill 2020

There’s a familiar rhythm to public discussion about national security legislation: too few people understand what’s going on, so every change to legislation seems radical and new.  Without specialist journalists, legislation is discussed in terms of press releases and slogans.

If you know nothing else about the Australian Security Intelligence Organisation Legislation Amendment Bill 2020you know that it has something to do with 14-year olds.  Perhaps you’ve even gone so far as to read an opinion piece from one of the usual suspects, even though their previous claims about national security law have consistently been inaccurate.

Part of the problem is that journos get interested in the legislation reform cycle at the end and then hurridly craft an opinion like an undergraduate philosophy student who hasn’t done the reading.

In 2017, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) undertook a review of ASIO’s questioning and detention orders. It tabled its report in 2018.  There were public hearings, a bunch of media releases, but not even a little bit of informed commentary in the media.  So, of course, a legislative reform process that started three years ago is now being described as ‘rushed’.

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If you want it, anytime I can give it… Another iteration of free speech and public servants

It’s like we’re trapped in a death spiral on this topic.  Somebody says something edgy, then we’re locked in an unproductive rehashing of slogans about whether or not the person should get sacked.  On the one hand, it simply could be the case that we keep getting locked into this unproductive mode because the nature of public debate is shifting: no longer do we privately say something to a maximum of 12 people, but instead we can broadcast to thousands.  Maybe the intuitions that served public debate back in the 1970s and ’80s (where most of our media class transitioned through young adulthood) are no longer apt to contemporary social issues.

Or maybe — just maybe — this sort of discussion is profitable to somebody.  Just maybe.

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I hope you don’t find a way to see how many times I’ll view your page… BREAKING: High Court lets News Corp get away with crimes

When should a person get away with a crime?

The average person might reasonably react to that question with a simple answer: ‘Never!’  Under an ideal justice system, those who commit crimes are punished and those who are innocent are not.

The public commentary about the Pell decision made the wider community more aware of the gap between that ideal system and the imperfect reality.  Just because a person committed a crime, the legal system might not declare them guilty.  By design, the deck is stacked in favour of the accused: the State has to meet an evidential threshold to remove reasonable doubt about their guilt.  Of course, this design is expressed in lofty, airy philosophy, and we can ponder whether the deck is equally stacked in favour of everybody accused of a crime.

One of my favourite decisions over the past few years received very little public attention, but it led to the conclusion that can have situations where we know–we absolutely, 110% know for an absolute cold hard certain fact–that the accused is guilty but are prohibited from convicting them.  The case is Strickland (a pseudonym): the Australian Crime Commission and the Australian Federal Police just did wildly (grossly) the wrong thing in obtaining evidence, with the result that the High Court prevented proceedings against the accused (I wrote a blog entry about this decision here).

Today, the High Court delivered its judgement in Smethurst v Commissioner of Police.  The Court found that the warrant was not correctly authorised by statute, and was therefore invalid.  Even though we know that Smethurst has material relevant to a crime, the High Court has found that the police obtained the material improperly.  Should a journalist be permitted to get away with crimes?

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Quick Post: Pell decision and legal intuitions

[T]here is a significant possibility that an innocent person has been convicted.

Any discussion of Pell v The Queen has to, in my view, begin with an acknolwedgement of the social dimension of this judgement.  Survivors of sexual assault will feel disappointed by the High Court’s decision.  It’s not a legal argument: it’s purely human.  Campaigners have been fighting for the justice system to give them the outcomes they want, to give them outcomes where people who do terrible things are punished, to give them the satisfaction of knowing that they are believed and supported by their community.

If I were in that position and if I heard the news as presented by journos rushing to get out the first tweet, I would be devastated.  They didn’t get the outcome they wanted; a reminder of how difficult it is for them to get the sort of justice that they want.

The response from the commentariat, on the other hand, has been unhinged.  While the High Court found that ‘there is a significant possibility that an innocent person has been convicted’, Australia’s professional chatterers announced that ‘this was a day that justice did not win‘, and ‘paedophilia is now legal in the state of Victoria‘.

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You say my name like I have never heard before… Late capitalism from home

It wasn’t that long ago that every TEDx talk or viral inspirational video was about the promise of technology. Futurists–unleashed from the need to produce falsifiable or evidence-based predictions–foretold of a Willy Wonka-esque utopia in which every dream became reality through the magic of technology.  Twitter would enable new forms of democracy. Wearables would give you real-time data about your health. Virtual windows in your house would show you the sky so you could have a guess about the weather.  There would be no end to the possibilities.

For a while, we knew that this promise was false.  The futurists quietly slurked away, and the ABC cancelled The New Inventors which gave a platform to those weirdoes. We had seen how misinformation spread rapidly through social media.  We saw how wearables helped companies to sell your health data to insurance companies.  Technology wasn’t utopian; it created new capitalist dystopias.

As a result of the pandemic, many of us have shifted to ‘working from home’. One issue that emerges is our reliance on technological structures that we (rightly) distrust.

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I’d see delight in the shade of the morning sun… Expertise in the time of COVID-19

I am a passionate advocate for improving the quality of opinion writing. I think high quality opinion writing is essential for good public debate. The sort of opinion writing I have in mind facilitates the use of facts by the wider community: it’s facts plus values, it’s facts plus argument, it’s facts plus the application to the real, day-to-day lives of the average citizen.

One of my heroes is Geoffrey Sawer.  At the core of his practice was a genuine love of law, and he wanted to ensure that the ordinary person on the street had a fighting chance of being informed about the laws that regulate their lives.  He had a radio show on the ABC where he would talk about a wide range of things, including gardening, in an attempt to build rapport with a public audience beyond academia.  He wrote a number of books designed to help the wider public understand the law (including one book published by the Australian Government Solicitor explaining the Constitution) and another specific for the needs of journalists wanting to write about legal issues.  He was the first Dean of the ANU Research School of Social Sciences, where I’m now studying.

For me, then, my question is about how do I use my own expertise to help others to form their own views.  How do I write an opinion piece that might be argumentative, but would let somebody else into the conversation so that they think about their own views differently or can adapt their own views to new sorts of discussions?

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