Soft soap me with just a pocket full of oil… Do we need a ‘Truth in Electoral Campaigning’ provision in the ACT?

A very quick post while I’m buried in marking.

The ACT Legislative Assembly is currently holding an inquiry into how the 2020 Election went.  There are some very interesting submissions and some difficult ideas at play.

One of the big ticket items of the moment is whether there should be a ‘truth in electoral campaigning’ provision. Last year, the Assembly passed the Electoral Amendment Act 2020, which introduced a new offence for misleading electoral advertising that had delayed commencement so that it will apply to future elections but not the 2020 election.  This was to give everybody a bit more time to work out how the law would work and function.

Continue reading “Soft soap me with just a pocket full of oil… Do we need a ‘Truth in Electoral Campaigning’ provision in the ACT?”

Quick post: Facts, public debate, and emergency powers…

YouTube provides really great analytic information about the videos you upload.  I am genuinely amazed that I can get people to stay engaged with a legal topic for an extended period of time.

Two interesting things that I’ve noticed.  First, if I have more than one topic in a video, the point at which I change topics is a moment where I lose audience members.  This makes sense: if you’ve come for the main meal, you’re not likely to be that interested in the minor notes towards the end.

But, second, there are certain facts that some audiences really, really do not want to hear.  The greatest audience drop-off I’ve had in any video is in the one I uploaded yesterday, and the critical point is when I drop the fact that, under our federal system, administering quarantine is a State responsibility and the Western Australian Government dropped the ball with regard to the passenger who returned from India.

Public debate often characterises this as a left-right issue.  We got wild electoral outcomes (Trump, Brexit, re-election of Scott Morrison) because rightwing and centre-rightwing voters were playing with a different set of facts.  But this video is a pretty good indicator that maybe this is just a general feature of the electorate at large: people who invested a lot of time in the debate about whether or not the Victorian Government should have prevented people returning home from NSW and who then went on to claim that the Federal Government was responsible for the recent ‘outbreak’ in Western Australia really are resistant to information which contradicts those viewpoints.

An open letter to @ElizabethLeeMLA in support of e-scooters in the ACT

Dear Elizabeth Lee MLA (Leader of the Opposition, Shadow Attorney-General),

There is significant public debate about the use of e-scooters in the ACT, and you issued a leaflet to residents in the Inner North about contacting you with concerns.  The debate is overwhelmingly dominated by disparaging views about e-scooters, and this open letter seeks to open up the discussion more reasonably.

I am a regular user of e-scooters.  I use them to get from Braddon to the Australain National University regularly.  I use them to get from my office to Civic for lunch.  I use them to get out to Ainslie IGA for groceries.  Every time I use them, it’s a car off the road.

I regularly see cars.  Next to my building is a five-storey car park.  Under my apartment building is a car park.  Several of the buildings near me have multi-floor car parks beneath them.  If you were to ask me if I would rather see a few dozen e-scooters parked badly around the ACT or the hundreds of cars I see each day clogging up roads or needing land allocated to their parking, I would struggle to side with the cars.

I regularly see cars driven badly.  Spend any amount of time in Civic, and you will almost certainly see a car come close to hitting pedestrians in the ‘pedestrian priority’ area.  Spend any amount of time between Braddon and the ANU, and you will almost certainly see a car come within inches of hitting cyclists.  Just this week, I was nearly hit by a car going at 60km/h that ran a red light.  Last week, a car went through a pedestrian crossing in Civic and nearly knocked over a group of pedestrians.  Also last week, on my way to Ainslie, a driver ran a cyclist off the road entirely.  If I drive an e-scooter badly, I am limited in the amount of damage I can do at 25km/h.  In pedestrian-heavy areas, I’m limited to 10km/h, limiting my damage further.  In contrast, a car driven badly will kill people.

I regularly see unnecessary cars.  According to the Canberra Times in 2019, three of the top ten most popular cars in Canberra were the Ford Ranger 4×4, the Toyota Hilux 4×4, and Nissan X-Trail.  These monsters are allowed on our road, regularly driven poorly, regularly parked unsafely on the central strip along MacArthur Avenue, O’Connor, or along the side of the Gungahlin Drive, Bruce, or along Parkes Way, Reid.  And yet despite the way that these tanks are parked unlawfully, despite the risk that large vehicles pose to other road users, and despite the complete lack of need for them, we don’t have inquiries about banning them or regulating them further.

There is a lot of animosity from other road users towards e-scooters.  I have had older car drivers yell at me from their vehicles even though I was riding lawfully.  I have had cars drive menacingly near me in an attempt to intimidate me.  I even have cars drive illegally near me, to the danger of other cars on the road, just to yell at me from their vehicles.

Other road users need better understanding of the law.  The Road Transport (Road Rules) Regulation 2017 defines e-scooters as a personal mobility device (s 18A).  It was widely noted in the press that s 244D prohibits the use of personal mobility devices (and therefore e-scooters) on the road.  What was less widely noted were the exceptions contained within s 244D to this rule: the rule does not apply where there is no adjacent area (footpath, nature strip or shared path adjacent to the road) or where it is impractical to ride on the adjacent area.  In each place where I have had car users yell at me to get off the road, there was no available adjacent area (usually due to construction on the footpath, or because there was no footpath).

It is due to these exceptions and the widespread unavailability of adjacent areas that s 244E is important: when we are on the road, e-scooters must keep to the left, not ride into oncoming traffic, and must ride single-file.

The best solution to this would simply be to abolish s 244D entirely and have personal mobility devices follow similar rules to cyclists.  It is entirely commonsensical to allow e-scooters to use bicycle lanes where they are less likely to encounter pedestrians.  Abolishing s 244D would erode the sense of entitlement that many ACT car-drivers feel they have to exclusive use of the roads, including towards cyclists.

For all the ‘bad behaviour’ of e-scooters in the ACT–and I have definitely seen other riders engage in some less than sensible behaviour–it pales in comparison to the poor behaviour of car-drivers in the ACT.  Not only is dangerous driving of cars far more frequent than dangerous driving of e-scooters, the consequences of dangerous car driving is far, far more serious.  We need a reality check in this debate, and we should be supporting approaches that will reduce the number of cars on our roads that require vast quantities of land to be converted into parking spaces for them.

Warm regards.

[video] Did the ABC’s article identify the Attorney-General? #auspol

I have been playing around with how to communicate legal concepts via video. After getting over my nervousness about actually seeing my face on things, I think I’m getting happier and happier with these.

Enjoy my quick explainer of the law underlying the question of whether the ABC identified the Attorney-General even though it didn’t name him, a quick discussion of a difference between US defamation law and Australian defamation law, a quick discussion of why the Federal Court is involved and why that might be a problem, and the social media habit of sledging lawyers based on their past clients.

The reaction so far has been surprisingly positive, and has resulted in people asking questions about other aspects of the case (like how the truth defence works), so I might do another in this sequence.

And a shout out to Dr Joe McIntyre from the University of South Australia who wants to beef up the problem of the Federal Court perception. The version covered in this video was the far more common version presented on social media (but argued at its highest so that it wasn’t a mere strawman). As McIntyre points out on Twitter, there’s a way to construct the problem so that it’s not about actual or perceived bias in this present case, but instead so that it is about perceived bias in the system overall: if, say, Jagot J presides over this case and find in his favour and then–for extremely good reasons as she is an eminent and excellent judge–is appointed to the High Court next year, won’t the public reasonably perceive that there is preferential treatment here? I think there’s an answer to this, but it draws upon theories of courts more broadly…

Bendable figures with a fresh new pack of lies… More on standards of evidence and Christian Porter

Juror no. 77: You’d have to convince me he was innocent rather than guilty.

Let’s walk through this one carefully and slowly.  In a recent post, I talked about how we were not committed to criminal standards of evidence when we talk about public accountability.  Since that time, the Attorney-General, Christian Porter, has told the public that he is the subject of the complaint.  He denies the allegation and has said that he would not step down.

Unfortunately, he said a few other things.

If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print.

If that happens, anyone in public life is able to be removed simply by the printing of an allegation.

Every child we raise can have their lives destroyed by online reporting of accusations alone.

My guess is that if I were to resign and that set a new standard, there wouldn’t be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country.

This is not true, but social media chatter is very confused about what’s being discussed here and how we resolve this kind of problem.

Continue reading “Bendable figures with a fresh new pack of lies… More on standards of evidence and Christian Porter”

Fact Check: Can Federal politicians report State crimes to the AFP?

Yes.  The AFP liaises with State police.

It’s important that people seeking justice are, to the greatest extent possible, given the ‘No wrong door’ option.  It is more appropriate for Federal politicians to contact the AFP, who can then manage the details with State counterparts, than for Federal politicians to approach State police.  It smells like interference, especially when you’re filing complaints about political opponents.

One reason why it was important to report these matters–even in the situation of the historical sexual assault that’s been a topic of interest this week–is that people who aren’t very across the details of the allegation don’t know if there’s more to the issue than what it says on the tin.  Sure, you might not be able to establish the elements of the sexual assault without a witness, but there might be other options (subject to whatever limitations apply in the jurisdiction).

I’m having so much fun with the poisonous people… Legal standards and social standards in political accountability

One of the biggest stories of the past fortnight within political culture has been a number of allegations of sexual assault, harassment, and other toxic working conditions for women in Parliament House.  The question I haven’t quite answered for myself is how much people actually care about this issue.  Beyond the hyper-engaged, people don’t really care about political staffers.

And when we do hear about staffers, we hear about them disparagingly: ‘An advisor to the Minister rejected the advice of the expert committee’, ‘An advisor to the MP leaked materials but the AFP won’t investigate’, ‘Too many politicians are former staffers’.

I want to focus less on the dynamics of the specific issues and focus more on something that is my expertise: the public’s adoption of complex legal concepts to engage in political debate.

Framed more simply: is this merely a criminal matter that should be left to the police to investigate?  What about the presumption of innocence?

Continue reading “I’m having so much fun with the poisonous people… Legal standards and social standards in political accountability”

He packed his suitcase and kissed his kids goodbye… Some facts about recent defamation cases

New year, new batch of defamation cases!

Two recent cases have had journalists and media professionals on Twitter all abuzz.  Media companies continue to lobby for changes to defamation law in the same way that vehicle manufacturers continue to lobby against emission standards.  Media organisations wield incredible and largely unchecked powers in Australia.

Until 2005, there was significant variation between Australian jurisdictions in the law of defamation, including whether or not truth alone was a defence.  Some jurisdictions required news organisations to also show something like ‘public interest’ or ‘public benefit’ when using a truth defence (called ‘justification’).

In 2005, it was decided to lower the standard across Australia to ‘truth alone’: if you could demonstrate that what you were saying was substantially true, you had a defence in defamation law.  The quid pro quo of this lower standard was that we were going to get a legislated tort of privacy: if media companies invaded your privacy, they would have to demonstrate a public interest in doing so.

Having obtained the lower standard in defamation law, media companies then lobbied against the privacy tort…

Continue reading “He packed his suitcase and kissed his kids goodbye… Some facts about recent defamation cases”

All I see is washed away; I am the voice left from drinking… On University Metrics

It is not often that questions about university performance metrics enter public debate.  It’s a niche subject so removed from the ordinary lives of everybody else that it might even surprise some people to discover that there are entire fields of study dedicated to assessing universities.

Anybody who engages — even peripherally — with the discussion soon discovers how broken the system is.  There are perverse incentives, there is significant doubling-up of work, and the cost of managing the processes is extravagent.

However, debate about the issue always starts at the wrong end.  People see the outcomes, notice the immediate absurdities, and say: ‘This is appalling, here is an itemised list of why it is appalling, and it should be scrapped because it is so appalling.’  Extremely commonly, the debate is motivated by hostility towards metrics of any kind, with metrics being viewed merely as a symptom of ‘neoliberalism’ (however vaguely defined) or ‘managerialism’.

A forthcoming chapter by Dr Rebecca Giblin and Prof Kim Weatherall takes this conversation a helpful few steps further, arguing instead for a different set of metrics.  Following a discussion that was mostly about the ARC’s attempt to undertake a research impact evaluation, Giblin and Weatherall argue:

So we propose that, rather than asking researchers to describe ‘what impact has your work had’, we move towards asking ‘what have you done about your discovery?’ […]  Just as we believe that research translation is critical, so too we think that creating a collaborative, enabling research culture is a key part of the role of a research academic that we need to foster and reward. […] We think that one way to start a conversation about leadership, collaboration and mentoring is to encourage researchers to reflect on, and articulate, ‘what have you done to enable the research and careers of others?’.

Continue reading “All I see is washed away; I am the voice left from drinking… On University Metrics”

While your feet are stomping and the jam is pumping… Conservatism in 2021 and Power as a Game

About two decades ago, there was a highly popular television show called Game of Thrones.  After about four or five seasons, they weirdly just stopped making new episodes, leaving it up to fans to discuss how they think the series would have ended.

In the first season, a major character explains the underlying philosophy of the plot: ‘When you play the game of thrones, you win or you die–there is no middle ground.’  Over the remaining seasons, the audience never really got a chance to challenge this assertion.  The show was infamously cynical about the nature of political power, subscribing entirely to the view that lawful authority was little more than the threat of greater violence.

Within a few years, we had a resurgence of political drama.  House of Cards was adapted from an old UK series.  We had a half dozen shows about fictional White House intrigue that made American democracy seem more like a soap opera than a system of government.  We had historical drama set with contemporary political norms, such as The Crown, Reign, and the one about the Medicis that I kept meaning to watch but never bothered.  We even had shows that adapted ‘political drama’ to other domains, such as the music industry (as in Empire) and media industry (as in Succession).

Sure, there is some variance in those shows, but overwhelmingly political power was presented in terms of personal drama.  Cersei doesn’t have a political ideology to represent: she just wants power.  Danaerys articulates a political ideology about emancipation… but ultimately just wants power.

And while that might be fine in the world of fiction, what happens in the real world when democratic processes become little more than a game of who can win elections every three or four years?

Continue reading “While your feet are stomping and the jam is pumping… Conservatism in 2021 and Power as a Game”