Rights or wrong?

When I was younger, I was very taken with the idea of a Charter of Rights for Australia. I simply couldn’t fathom the fact that Australia didn’t have certain rights in its Constitution. But now that I’m older, I’m not so sure that a Charter of Rights is the panacea for all ills in society. I know that human rights are malleable, and that one human right can conflict with another.

For a particularly thorny and controversial case, see The Queen v GJ [2005] NTCCA 20, a case involving an Aboriginal elder and a young Aboriginal girl aged 14 or 15. The girl had been “promised” to the elder when she was a baby, but did not want to marry him, but her grandmother sent her to his house. In the event, the elder was charged of offences including assault (with a boomerang) and sexual intercourse with a child under the age of 16. The trial judge sentenced the elder to one month imprisonment (with a suspended sentence) because he found that the elder was behaving in accordance with customary indigenous law. However, on appeal, this sentence was overturned. 

Human rights do not provide a clear answer to a case like this. On the one hand, the elder could be said to have a right to continue to practice his own culture in a society where he made up an ethnic minority. On the other hand, the girl could be said to have a right to be free of inhuman and degrading treatment, and to have her rights treated as equal to any other child, regardless of her race or religion, and not to suffer because of her status as a woman.

I’m thinking about these issues because the Charter of Human Rights and Responsibilities Act 2006 (Vic) comes into force in Victoria today. Do I believe in human rights? Of course I do. I think that there should be a certain amount of freedom of speech (whether I agree with what is said or not), and that there should be freedom of religion, and so forth. But I can see that in some circumstances it is not easy. Say there is a group who argue that a certain religious group controls society and that they should be banned from Australia. This is something to which I have a very deep seated revulsion on a personal level. Obviously there is a right on the part of the group to freedom of speech, but there is also a right of the people of that particular religion to be free from vilification and discrimination. How to balance it? I can never quite make up my mind.

Peter Faris QC has written a piece which is extremely critical of the Charter of Rights. He sees it as a gravy train for lawyers, with little real practical benefit for the people.

I am not quite sure that the scenario is quite as dire as Faris QC portrays it. I went to a site for Conservative Lawyers in the UK (a scary concept). There I found a paper by two barristers which outlined the benefits and detriments of the Human Rights Act 1998 (UK) in the United Kingdom. (I had to overcome a personal prejudice – a lifelong dislike of Tories arising from my schooling in England). I found it to be a fair paper. The lawyers made five provisional conclusions:

• There was more uncertainty in the outcome of litigation where public authorities were concerned, particularly concerning the liability of public authorities in tort.
• More time and expense is incurred in arguing Human Rights Act points than is probably justifiable, although this is likely to settle down.
• There has been some “refreshing” of the common law with arguable benefit in some areas although the common law was generally regarded as being sufficiently dynamic to bring about changes absent the Human Rights Act.
• There is greater freedom for judges to make new law in areas where the law is either uncertain or possibly antiquated. 
•  Some cases where claimants would have failed before the Human Rights Act can now succeed. What success means however is still somewhat uncertain. The actual remedies available under the HRA are still a matter for development.

At [50] of their paper, the barristers conclude:

The approach of the Courts to the Human Rights Act has not perhaps been as radical as some feared. But we do venture to suggest that the effect of the Human Rights Act has been considerable in terms of the way in which public authorities organise their affairs. Whilst much of the evidence is anecdotal and perceived, sometimes, through the possibly unreliable medium of the popular press, there nevertheless seems to us to be a significant body of evidence that in a number of areas public bodies fearful of human rights violations are being unnecessarily elaborate and defensive in their response. This is very much a mirror of what was covered by the all party parliamentary enquiry into the so-called Compensation Culture. There it was concluded that the perception of a compensation culture affected the way people behaved notwithstanding the fact that there was no real evidence of an increase in compensation claims.

I am not against human rights per se, but my fear is that incorporating human rights into legislation may actually mean that governmental bodies try to obfuscate their actions from a fear of potential legal action. I would not be as negative as Faris QC, and I can see some benefits in human rights legislation. However, I cannot help thinking of freedom of information legislation, which has led to governmental bodies trying to increase the amount of material which is “off-limits” and exceptional. The case of McKinnon last year (about which I wrote a post) is an example of the way in which FOI can be manipulated to hide information. Similiarly, I worry that the net effect will be an unsavory one: governmental institutions will attempt to circumlocute human rights rather than upholding them.

Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

Freedom of Information ain’t so free

On Wednesday, the High Court handed down a decision which will be pivotal in establishing the ambit of FOI claims. In McKinnon v Secretary, Department of Treasury [2006] HCA 45, a majority of the High Court found that requests for information could be resisted on the basis that the minister responsible for that portfolio had signed a certificate stating that disclosure of information was not in the public interest.

The facts arose in the following manner. Mr McKinnon, the FOI Editor of The Australian made two requests for material from the Department of Treasury in late 2002 pursuant to the Freedom of Infomation Act 1982 (Cth) (“FOI Act“). The first request was for material relating to “bracket creep” in the federal income taxation system, and the second request was for material relating to the First Home Owners Scheme. Mr Costello, Federal Treasurer, signed two certificates pursuant to s 36(3) of the FOI Act stating that disclosure of the most of the relevant documents would not be in the public interest. The reasons for this were broadly as follows:

• Disclosure would mean that goverment officers would not feel comfortable communicating freely with a Minister and his office on issues which are sensitive. Officers should feel able to make written notes of such communications.
• Some of the documents discussed options that were not settled at the time the document was drafted or recommended courses of action that were not ultimately taken. This could lead to confusion and to mislead the public, and would undermine the public integrity of the Government’s decision making process.
• Further, preparation of possible responses to questions in Parliament is a very sensitive aspect of the work of departmental officers and should remain undisclosed. The release of such documents would threaten the Westminster-based system of Government.
• Some documents could not be put into their proper context because of the absence of any explanation of the variables used or assumptions relied upon, and so would not be a valuable contribution to public debate.
• The documents were intended for a specific audience familiar with the technical terms and jargon used, and thus could lead to public misunderstanding.

Meanwhile, Mr McKinnon made an application to the Administrative Appeals Tribunal (“AAT”) seeking a review of the decision to refuse to disclose the documents. Pursuant to s 58(3) of the FOI Act, the ATT does not have the power to review the decision to give the certificate. However, pursuant to s 58(4), the AAT can decide whether the Minister has reasonable grounds for citing the grounds claimed in the certificate. Further, pursuant to s 58(5), the AAT can decide whether the Minister has reasonable grounds for the claim that failure to disclose the document is in the public interest.

The ATT determined that there were “reasonable grounds” for the Treasurer to sign a certificate pursuant to s 36(3). Mr McKinnon then “appealed” to the Federal Court. A majority of the Full Court of the Federal Court (Tamberlin and Jacobson JJ, Conti J dissenting) dismissed Mr McKinnon’s appeal. Mr McKinnon then appealed to the High Court.

A majority of the High Court (Hayne J and Callinan and Heydon JJ) dismissed Mr McKinnon’s appeal. Hayne J said that Mr McKinnon’s submission had been that the AAT was in error in its approach to the question:

• It had merely identified a single ground that was not irrational, absurd or ridiculous in upholding the claim disclosure was not merited in order to preserve confidentiality of intra-governmental communications
• It had not decided all of the relevant questions of fact tendered by the competing evidence adduced at the hearing, and had wrongly treated certain classes of documents as necessarily exempt from disclosure.

Hayne J concluded that the AAT had not been in error in this manner, and therefore Mr McKinnon’s claim must fail.

Callinan and Heydon JJ, in a joint judgment, concluded at [131]:

“[I]f one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review… Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal.”

As Gleeson CJ and Kirby J point out in their dissent, the view of the majority appears to mean that, so long as there is anything relevant to be said in support of the view that disclosure would be contrary to the public interest, an application for review of a certificate must fail. The AAT may, however, in making its opinion, take account of all relevant opinions. Gleeson CJ and Kirby J explicitly reject the suggestion that they are arguing that the AAT should perform a “balancing” operation. They state at [19]:

There is a “general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]” (s 3(1)(b)). That is the context in which a Minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to “balancing” create a danger of losing sight of that context. That is the context in which the question of reasonableness raised by s 58(5) is to be addressed. To lose sight of that would be to lose sight of the principal object of the FOI Act.”

With respect, I think that the judgment of Gleeson CJ and Kirby J is far more compelling and accords with the aims of the FOI Act. It seems ridiculous to me that if there is just one reasonable ground for non-disclosure and one hundred reasonable grounds for non-disclosure, the AAT should come down on the side of non-disclosure. As Gleeson CJ and Kirby J say, the FOI Act makes it clear that its intention is to allow the disclosure of the vast majority of information in the public interest, and so it is not so much a “balancing act” as an exercise of deciding when it is appropriate to allow the aims of the FOI Act to be curtailed.

The government is supposed to act in the interests of the public and for their benefit. It seems that we are not allowed to have the information to decide whether the government is actually acting for our benefit if the government decides in its infinite wisdom that we should not know. I believe it is unfortunate that the majority view has prevailed, as this will give government a further means to sidestep the provision of information about which the public has a right to know.