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Where bad arguments go to be mocked

August 13, 2010 – 3:47 am
By skepticlawyer

I’ve always found the various attempts to argue for the burqa or niqab as liberating rather than constricting and deeply misogynistic to be a steaming pile. Clearly the people at newsbiscuit agree. Some highlights:

New laws in Saudi Arabia and the United Arab Emirates will require that every Blackberry user dress their phone a miniature burqa and face veil.

‘The Blackberry burqa means that people can still use their phones,’ said a Saudi government official, ‘but the tiny niqab that covers the screen will stop them from reading emails or accessing the Internet.’

Followed, thereafter, by this:

Some businessmen believe that making their phone wear a burqa can be very liberating. ‘It’s great,’ said one, ‘with the veil in place I am free to walk about with my Blackberry in public without the feeling that people are staring lustily at my multi-media application. It also covers my shame for not owning an iPhone.’

Some religious groups have welcomed the policy. ‘If Allah had meant us to freely access the Internet He would have given us web browsers in our heads,’ said a local imam, adding ‘There is absolutely no mention of instant messaging in the Koran and at no point did Muhammad, or any of his eleven wives, ever say LOL, ROFL or PMSL.’

It’s rather like spotting racism or sexism in a given document by substituting one ethnic group’s name for that of one not usually subject to abuse and reaslising that, ah, racism doesn’t just happen to black people.

But wait, there’s more:

If the Blackberry burqa is successful it may spread to other countries. However, experts say that dressing your phone in a burqa could result in poor reception, especially in France and Belgium.

The British government has yet to declare an official line on phone burqas although Immigration Minister Damian Green said that to ban them would be ‘very unBritish’. He went on to explain that, ‘the British thing to do, as always, is to grumble and tut.’

As they say, read the whole thing.

[A gentle tip of the hat to Michael Bonner].

By skepticlawyer | Posted in Free Speech, Funnies | Tagged , , , , | Comments (7)

And I broke a bloody fingernail!

August 11, 2010 – 5:03 pm
By skepticlawyer

Those of you who are my facebook friends will know that last night, I was the victim of a serious assault. That piece of legalese doesn’t, however, quite do justice to the experience of having a bottle smashed over one’s head.

If it’s a ned, then it must be Buckfast.

In short, two persons — a male and a female — attempted to force entry to two of the apartments in this building. One of them was DEM’s. They were not interested in theft. They were, however, interested in assault. This building includes a significant proportion of sheltered housing (for elderly and disabled people). Not the sort of people who can easily defend themselves. When the pair tried to burst through our door, I threw them out. I found out that martial arts is for life and not just for fitness, although it would appear that some of the rules have changed since I earned my shodan (black belt) in 2000.

I followed Sensei Enoeda‘s advice and immobilised the male — very successfully. He could do nothing. I had him in an arm bar (a ‘no 9′ for the aficionado) with his back to me. I then used his bulk to drive both of them towards the front door and out of the foyer of the building. At this point, his female companion broke a half-full bottle of Buckfast over my skull. This represents a significant cultural shift. I have worked as door staff in a few venues; take out the male and any woman usually goes to pieces. During later conversations with the paramedics who provided EMT, I learned that women are now worse when it comes to the perpetration of certain kinds of street violence in Scotland (particularly when it comes to disrespecting members of the emergency services). One paramedic put it down to a failure to appreciate ‘when one is beaten’. Men know when to stop; indeed, once I had the male in a secure arm bar, he was shouting at the woman to calm down and not resisting me strongly.

In a comment on another thread, Lorenzo made the following observation:

On the other side, I am told by a friend who used to manage a venue that female audiences at strip nights tend to be much worse than male audiences because of a more attenuated sense of when to stop.

This, after my experience, has the ring of truth to it.

At that point, I got a bit miffed and there was a a scuffle in full view of the CCTV cameras in front of the building (see you on Crimewatch, people). I think most people pass out when glassed. I didn’t. I kept coming (ADMIN DEM: think of the terminator robot wearing a curly blonde and badly bloodied wig). At this point they ran (ADMIN DEM: As you would).

For the uninitiated, Buckfast is the ned’s tipple of choice. All 15% alcohol volume of it. A ned — as I explained on facebook — is Scotland’s version of the chav. However, one friend who is a member of the Scottish constabulary describes neds as ‘unaspirational chavs’.

The joys of the NHS

At this point staff and patrons of the nearest Italian restaurant were very helpful… and it was very handy that their paper napkins were already red. Scalp wounds bleed like buggery. There followed two phonecalls to the police (one by DEM, one by the restauranteur), one call to the ambulance (by the restauranteur) and then a late night tour of the Royal Infirmary’s A & E department. And let’s just say that if waiting 2 and a half hours while pissing blood from a head wound is ops normal for the NHS on a TUESDAY, then I can see why the American reaction to socialised medicine is: DO NOT WANT.

Apparently my failure to either (a) pass out or (b) lose the plot was the justification for this. When I was finally x-rayed, I was complimented on my unusually hard head and thick skull (ADMIN DEM: no comment). Something (for those lawyers among our readers) of a reverse to the usual ‘Eggshell Skull‘ rule. Even worse, DEM and I were sent home in a taxi — for which we had to pay — at close to 3 am. The incident occurred at approximately 9pm.

Notices informed people waiting in A & E that this is normal procedure. I am unusually strong and fit and capable of managing my emotions from many years of martial arts training. I would not like to be a ‘regular person’ with a ‘regular skull’ and no martial arts training being sent home in a taxi after being glassed. I didn’t like it much anyway (ADMIN DEM: ordinary people being glassed wouldn’t be going home at all).

And I broke a bloody fingernail!

The irony this morning as I write this? The thing that really canes is a torn-off fingernail (right down to the nail bed) on my right hand (I am left-handed, fortunately). Apparently what is in my head is a staple (the implement used did look like an office stapler), not a stitch, although this seems to be something of a distinction without a difference. It doesn’t hurt, unlike the fingernail.

Here endeth my anthropological report on the Edinbuggeris Vulgaris Ned.

By skepticlawyer | Posted in Defence, Law, Society, scotland | Tagged , , , , | Comments (26)

Ozblogistan News, Part Deux

August 10, 2010 – 8:17 pm
By Jacques Chester

Hello all, your friendly Ozblogistan Overlord here.

Last week I wrote briefly about slowness being caused by attempts to debug a comments plugin used by several Ozblogistan blogs — Brian’s Latest Comments — in the context of Larvatus Prodeo. It transpires that LP’s database of comments was too large to process without causing errors and slowdowns. During the week I worked on various modifications; these ‘work’ in that they have the correct behaviour and don’t crash, but in actual use they have proved to be unacceptably slow.

Consequently I have asked our blogs to deactivate the offending plugin for a few weeks. Our busiest, Catallaxy Files and Larvatus Prodeo, have done so, which should for now improve performance for everyone.

Why have I asked them to deactivate it for a few weeks? Because yours truly is moving to Darwin to take up a new job. I won’t have my usual computer for 3 weeks, according to the removalists. Once I am settled in I have another plan of attack to try, but until then I will not be in a position to easily fix things. Until then, enjoy the blogging.

By Jacques Chester | Posted in Site News | Comments (0)

Immigration debate for Melbournites

August 9, 2010 – 7:06 pm
By skepticlawyer

As the election campaign gets into top gear, it’s becoming clear (from afar, at any rate) that immigration has somehow turned into a live issue again. I honestly thought it was pretty much dead and buried after Howard and Rudd’s efforts, but apparently not. You could call it the ultimate policy zombie. If nothing else, a bit of actual information is probably a good thing, as well as an understanding that people’s views on immigration can be hard to pick based on the rest of their politics.

Back in the day, Labor was traditionally the anti-immigration party while the Liberals were more in favour. Billy McMahon — a Liberal PM — got rid of the ‘White Australia Policy’, but the evidence for a broader shift was already underway by his time. Labor’s Gough Whitlam wasn’t a supporter of the White Australia Policy either. That said, he didn’t like anti-communist immigrants, famously describing one group as ‘Vietnamese Balts’. The post war Eastern European immigrants tended to be on the right; so too were many of the Vietnamese, for obvious reasons.

As the wheel turned, however, more people on the right came to oppose immigration, although I suspect that what they most strongly opposed was multiculturalism. There is no doubt that cultural diversity raises transaction costs and undermines social cohesion — this process is well documented — but that said, few people would want to go back to Australian cuisine or fashion before the period of mass immigration. Like all things, it’s a trade-off. These days, opposition to immigration can also come from certain parts (but by no means all) of the environment movement (on sustainability grounds), which can make for very strange bedfellows indeed. Libertarians, by contrast, are most often in favour of high levels of immigration, although they do tend to be realistic about where some of the opposition to it comes from: those in low paid jobs who watch the equilibrium price for their labour drop below the mandated minimum wage and those who resent welfare support being paid to people who have never paid any tax.

All of these concerns are complex and thought-provoking, especially as they take us away from the often stereotyped accusations of racism commonly bandied about when this issue raises its head.

To that end, the good people at The Monthly Argument have organised a debate on immigration with some excellent speakers. The topic is Immigration: Should We Apply the Brakes and features Catallaxy’s Sinclair Davidson, the Australian Conservation Foundation’s Chuck Berger and a panel including Jill Quirk from Sustainable Population Australia, Cam Walker from Friends of the Earth and the redoubtable political contrarian Albert Langer (now known as Arthur Dent). A precis of the issues they’ll be discussing is available here.

The debate takes place on Thursday 12th August at 6:30pm in The Function Room, Dan O’Connell Hotel, 225 Canning Street, Carlton. Very cheap food and drink is available. A Google map is here.

The organisers specifically want to get away from ‘the usual suspects’ and would like all sorts of people to turn up, so in this election month, why not head along?

By skepticlawyer | Posted in Events, Immigration | Tagged , , , , , , , | Comments (6)

Unhappy Medium

August 7, 2010 – 1:33 am
By DeusExMacintosh

A major Edinburgh Fringe venue has defended its decision to put a “psychic medium” on the bill.

Joe Power – “The Man Who Sees Dead People” – is to play a three week run at The Assembly. However, Power was booed and heckled during the Assembly’s 30th anniversary gala.

Assembly director William Burdett-Coutts admitted he made a mistake listing Power for the gala but said he was right to put him in the programme.

Burdett-Coutts told the BBC Scotland news website: “We made a mistake putting him on in that context, it was incredibly difficult for him.

“While it was uncomfortable to watch, on a positive note, he has certainly gained a lot of attention from it.

“Even stand-up comedians find it incredibly hard to work within a five minute slot so for Joe Power, who needs time to take the audience with him, it was very difficult.”

“I regret putting him in that line-up but I don’t regret putting him on the Assembly programme.”

Power, 44, from Liverpool, said he has had a lot of trouble from sceptics since he was on Channel 4′s Derren Brown Investigates.

He said: “Since that programme I have had threats and had to move home.

“So I was expecting the sceptics at the Assembly launch night but I didn’t think it would be as bad as it was because anything people do should be respected.”

- BBC News

[ADMIN DEM: Obviously he's never sat through "Puppetry of the Penis". In case anyone happens to be visiting Edinburgh during his run, I can recommend several excellent local grocers for all your ballistic vegetable needs. Also for non-UK readers, we covered the fake kidnapping of Shannon Matthews here.]

Or as BBC Scotland’s Arts correspondent, Pauline McLean put it…

…it’s fair to say that in comedy terms, Mr Power well and truly corpsed, which is quite ironic given his build up as “The Man Who Sees Dead People”.

Which is a bit of a shame as his Derren Brown appearance got a quite good write up in The Guardian…

It’s never been a better time to be a medium. In times of recession and fiscal uncertainty, people are apparently more willing to look beyond the corporeal world for security, although quite how having a strange man telling you that your dead dad is standing behind you provides that security is not really explained. Power is Liverpool’s leading spirit communicator, and over the course of a week with Brown, he proves that, quite frankly, the dead of Merseyside must be pretty undiscriminating about who they’ll talk through.

This film, The Man Who Contacts The Dead, is partly about the medium trade, rather more about envy and delusion. What’s apparent from the get-go is that Power simultaneously harbours desires to reach Derren Brown-sized audiences – when he’s not seeing dead people, he probably dreams of the day that he gets to wear a microphone headset just like Derren’s – and the festering resentment of a man who knows he won’t get there. He’s determined not to be upstaged by Brown and, indeed, gives a virtuoso performance of twattery that would actually beef his stage act up no end.

Judge for yourself here (if the spirit so moves you)

H/T: to all those lovely “paedophiles” at the Merseyside Skeptics Society

By DeusExMacintosh | Posted in Britain, Funnies, Media, Skeptics | Tagged , , , , , , | Comments (0)

Sexual harassment and the law

August 5, 2010 – 1:57 pm
By Legal Eagle

Personal recollections

A long time ago, in the process of applying for Articles, I was sexually harassed by a male partner at a law firm. I think I was, anyway. I hadn’t received a place in the first round of offers, and I’d come to seek feedback on my interview technique. “What would you do to work at our firm?” asked the partner. “Would you deliver mail for us?” I answered back, “Sure, I’d deliver mail, but it seems like a bit of a waste of my capabilities. I’ll write an essay on any legal topic you choose. Just choose a topic, any topic.”  The partner watched me intently and leaned towards me, into my personal space. “How much do you want Articles? What would you be willing to do? How low would you go?” I got a bad feeling about what he was asking. Leaning back from the man, I said, “Name a legal topic and I’ll write an essay for you.” When the interview concluded, I emerged blinking into the sunlight, shaking. Did he mean what I thought he meant? Ugh.

Thinking about it over 10 years later, I think I’d have handled it very differently now. I would say, “What exactly are you asking of me?” Then, depending on his reaction, I might say, “Are you asking me to sleep with you? If so, just ask straight out, but I don’t tend to favour portly middle-aged alcoholics.” Then I’d stare at him with contempt and walk out.

Of course, I’m speaking with the advantage of 10 years experience, and as someone who now would have no problem seeking a legal job wherever she chose. As the person I am now, I could afford to burn my bridges with this man and to shame him. Back then, I thought I’d never get a job anywhere. I doubt he’d have tried it on a woman who was in a more secure position: it was precisely my insecurity and vulnerability which attracted the advance.

Would I have sued that guy, if it had been suggested to me? No. I didn’t want to render myself unemployable. As it turned out, revenge was a dish best served cold. I told my law school compatriots of the unpleasant experience I’d had at this firm, and I’m sure I read somewhere that the particular firm dropped in popularity with graduates from my university during the next year or two. I do hope that it was at least partly down to me. Then, some five years later, the same firm tried to head-hunt me. I told them politely that I wasn’t interested.

More general thoughts

One of the hard things in responding to unwanted sexual advances is a lack of knowledge of quite how to respond. Particularly if one is a nice middle-class girl, one is inculcated with politeness and a lack of desire to offend or hurt someone’s feelings. In Helen Garner’s The First Stone, she recounts an episode where her masseuse feels her up in an inappropriate manner. Garner recounts feeling frozen, not quite sure what to do. She wonders if she is imagining the inappropriate touch. This account reminded me of my reaction to the law firm partner. Was I imagining it? I also felt frozen, not quite sure what to do.

Now, if I’d been sure of what exactly he was proposing, the law firm partner might have been at risk of a slapping. I once asked my mother why my sister got more inappropriate advances than I did. “Am I less attractive?” I wondered. “No,” said my mother, after a thoughtful pause, “I think it’s just that you’d be likely to hit the guy. I’m sure they can tell.” That’s the advantage of being taller than average and reasonably broad-shouldered. I suspect that hitting the guy is not a nice middle-class response to the problem, either. But geez it feels good.

It’s quite extraordinary what politeness will lead women to do. I had a female friend who experienced unwanted approaches from a male friend. She still kept going to the movies with him and talking to him on the phone because she liked him (although not in that way) and she didn’t want to hurt his feelings. Possibly she thought her feelings towards him were obvious – it was obvious to me that she wasn’t interested in a romantic relationship because she flinched every time he touched her. Unfortunately, he wasn’t very good at reading body language signals. Things escalated to the extent that he began stalking her. She had to tell him not to approach her ever again and threaten to take out a restraining order. The issue was complicated by the fact that each of the parties had different cultural backgrounds, and were both very inexperienced in relationships. He thought her politeness masked keenness for his company, she thought her politeness was self-evidently kindness, and that it should be clear to him that she didn’t want anything more.

In some ways, I think people of both genders need to be taught to know how to respond to unwanted advances before it gets to law suits and restraining orders. Certainly I had no idea that I’d be facing potential sexual harassment during the Articles application process, and I had no idea how I should respond to that without tanking my career. I am sure that I am not alone in experiencing unwanted advances in the job application process. And it’s clear that people worry about the effect of bringing complaints on their career.

It gets even more difficult when one is sexually harassed by one’s boss. Fortunately I’ve never been in that position, but I know others who have. It’s not like you can just storm out of there in a huff. You have to keep working with this person. And sometimes, no matter what boundaries you put up, or how often you say “no, I’m not interested”, some people will keep making further advances. The important thing, when giving people the tools to deal with sexual harassment and how to respond, is not to put all responsibility on the victim. The perpetrator has primary responsibility to cease harassment. Still, if there’s one thing I’ve learned over the past 10 years or so, it’s that you can’t control how other people behave, but you can control the way in which you react to them.

The David Jones sexual harassment suit

By a meandering process, I now arrive at the sexual harassment suit in the news at the moment. In June this year, Mark McInnes, the CEO of David Jones, quit after being informed that a female employee was going to bring a sexual harassment suit against him. He issued a statement in which he admitted:

At two recent company functions I behaved in a manner unbecoming of the high standard expected of a chief executive officer to a female staff member. As a chief executive officer and as a person I have a responsibility to many, and today I formally acknowledge that I have committed serious errors of judgement and have inexcusably let down the female staff member.

McInnes had been a very successful CEO who had turned David Jones around financially. Press reports said that the behaviour of McInnes was in character, given that he was somewhat notorious for being a “flirt” with women. The female staff member was 27 year old Kristy Fraser-Kirk, a publicity and marketing manager. Fraser-Kirk has now brought the promised legal action. Her allegations are as follows:

It was during a lunch hosted by David Jones in May to celebrate its renewal of a contract with the horse trainer Gai Waterhouse that Ms Fraser-Kirk claims she was first harassed by Mr McInnes.

Mr McInnes allegedly urged her to try a dessert, describing it as like ”a f— in the mouth” before placing his hand under her clothing and touching her bra strap.

Ms Fraser-Kirk alleges he also repeatedly asked her back to his Bondi home ”with the clear implication that such a visit would be for the purpose of sexual intercourse,” the statement of claim said.

He did so on one occasion while lifting her up in a hug, in front of the general manager of David Jones public relations, Anne-Maree Kelly, and Ms Fraser-Kirk’s supervisor, Tahli Koch, she alleges.

During the second occasion at a function for La Prairie cosmetics at Tivoli Villa, a luxurious Rose Bay home, Mr McInnes allegedly twice tried to kiss her on the mouth before placing his hand on her stomach and on the bottom of her bra.

On both occasions Ms Fraser-Kirk claims she made it clear his advances were unwanted.

The following day she alleges he phoned her to meet him for dinner or a drink before saying, ”I could have had guaranteed sex with that brunette last night [at the party] but I wanted you.”

Fraser-Kirk has said that there were four other women who worked at David Jones who had suffered similar advances, and that the company was aware of three of them. Fashion designer Alannah Hill declared that she was “the brunette” and then said:

…she had a crush on Mr McInnes and that “I threw myself at him”.

“I wouldn’t be trying for $37 million, I would just be like, good,” she said.

“I would have gone back to that Bondi flat in a heartbeat.

“Yes, yes. I wish it was me. I wish he’d touched me up. He told me he didn’t want to mix business with pleasure.”

After a public backlash, Hill apologised for her comments, and proposes to hold a “sorry sale”, half of the proceeds of which will be donated to a woman’s shelter or sexual abuse charity.

Still, Hill’s comments throw up something that some feminists would probably rather ignore. It is this: some women like the kind of attention McInnes seemed to want to shower on any attractive female. I happen not to be one of those women, and my reaction to Hill’s disclosures was distaste. Everyone has a different place where they draw the line. I don’t mind catching someone “checking me out”, unless I’m trying to have a serious intellectual discussion. I don’t mind a boss saying that I look good in a particular outfit either. But if you put your hand up my top without my consent and touch the edge of my bra (as Fraser-Kirk alleges McInnes did to her) you’ll find yourself slapped in the face as hard as I can manage. I don’t care if you’re my boss or the Lord High Admiral. Being touched like that without my consent pushes my buttons big time.

The legal aspects

As I have outlined in another post, “sexual harassment” is defined by s 28A of the Sex Discrimination Act as follows:

(1)  For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Personally, I think it’s appropriate to have legal regulation to prevent discrimination and sexual harassment in the workplace. Nonetheless, as I described in my other post, a close inspection of s 28A of the Sex Discrimination Act worried me, because it includes conduct of a sexual nature which offends, humiliates or intimidates.

To me, offence is very different to humiliation and intimidation.  Humiliation and intimidation seek to belittle the person’s standing as an equal human being in the eyes of the community. In a Kantian sense, the perpetrator inflicts a moral injury by trying to belittle the other. It is entirely appropriate to regulate harassment which is intended to humiliate or intimidate because it cannot be done without intent. By contrast, offense is a very subjective concept. A person may offend another without intending to do so and sometimes, without even realising it. Trying to regulate conduct which is offensive is difficult precisely because offense is so subjective. Anyway, that’s an academic debate for another day; the Act is the way it is for the present.

Fraser-Kirk has claimed $37M from David Jones and McInnes, an extraordinary amount.

Before we start talking about this, it is very important to be clear about the different kinds of awards of damages in legal claims, and the different purposes behind them. The most common sort of claim is compensatory damages, which seek to compensate the plaintiff for the loss suffered (or for the infringement of her rights, if you’re a rights-based scholar). However, there are other kinds of damages awards which have other motives at the forefront. Punitive damages, as the name suggests, are not concerned with compensation for loss but are motivated by notions of punishment and general and specific deterrence. Punishment looks to past conduct and seeks to penalise the defendant for that conduct. General and specific deterrence are forward-looking. General deterrence seeks to deter other people from engaging in that particular conduct in the future, whereas specific deterrence seeks to deter that particular defendant from engaging in the particular conduct again.

Fraser-Kirk’s claim of $37M is said to be punitive damages, not compensatory damages. Miranda Devine wrote a piece criticising the quantum sought by Fraser-Kirk, saying:

Woman who are raped don’t get that kind of money as victims’ compensation – they’re lucky if they receive $100,000. A woman who was raped by a navy colleague at HMAS Cairns was awarded less than $500,000 in 2007 in a sexual harassment lawsuit.

A David Jones employee who sustained a serious brain injury at work would get less than $300,000 in compensation under Work Cover. So why does McInnes’s conduct qualify for such a grand cash grab?

(emphasis added)

If Fraser-Kirk was merely seeking compensation for loss, I would suggest that the quantum she would be likely to receive would be on a par with those other cases. But she is not merely seeking compensation for loss. She is seeking punitive damages, which have a different aim entirely. If one is looking for why she is seeking to punish and deter, one only has to look at her press statement:

  • ”I’m a young woman standing here today simply because I said it wasn’t OK, because I said that this should never happen to me or to anyone.”
  • ”I believed I could have gone far if my career had been able to continue.”
  • ”Put simply, my whole life has now been turned upside down.”

Still, I do wonder how her claim will fare. Elizabeth Knight in the Sydney Morning Herald was doubtful about the motives of such a claim:

Punitive damages sought for the deterrent effect are uncommon and the damages being sought here are out of the ballpark.

It has left the average person and indeed the legal profession wondering why such a large amount is being asked for and whether there are other agendas.

Fraser-Kirk sought to head off claims of greed by announcing on Monday that any money raised from a punitive claim would go to a charity set up to help future victims of sexual harassment.

The trouble is that, given punitive damages are unheard of in this type of claim, there has to be a real question mark over whether they would be awarded – so is such charity a realistic gesture of philanthropy?

As Knight notes, punitive damages have never been awarded in a sexual harassment case, let alone in such a massive quantum. I do not know how open an Australian court would be to such a development, given that punitive damages are not presently available for breach of contract or breach of fiduciary duty in this country.

Conclusion

As other commenters have noted, the positive aspect of this whole affair is that it has started off a discussion of sexual harassment in the workplace and hopefully caused large companies to realise that they cannot just shove these kinds of things under the carpet.

As an aficionado of unusual claims for damages, I will be watching this claim with interest. I will not be surprised if it is settled out of court, however.

Update

As a result of discussions with commenters kvd and Paul Walter below, I’m starting to wonder if the massive claim for punitive damages is what we lawyers call “an abuse of process”.

There is a very clear legal basis for suing McInnes for sexual harassment, particularly given that he has admitted that he engaged in inappropriate conduct which seems to fall squarely within the ambit of the Sex Discrimination Act. I strongly believe Fraser-Kirk should sue McInnes and DJs for as much compensatory damages as she can. It’s simply unacceptable that behaviour like this can go on in this day and age.

However, there is presently no legal basis for a massive claim for punitive damages, and my advice would be that such a claim is highly likely to fail. Her lawyers must know that as well as I do, but I’d guess they’re using it as a bargaining chip, along with the attendant negative publicity.

It’s bad form to run a weak legal claim when you know that it’s likely to fail, but you’re really using it for the purpose of forcing the other side to settle – it’s an abuse of the process of the court – see White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806. If I were DJs, that’s the argument I’d be running… The more I think about it, it’s a very dangerous strategy for her lawyers to be running.

Update 2:

Or maybe it’s not an abuse of process after all. This piece by Chris Merritt in The Australian suggests that as long as the basis for the cause of action itself is well-grounded, the quantum of the remedy sought may not matter (there is a distinction between the cause of action and the remedy sought in law). Merritt mentions the case of Momibo Pty Ltd v Adams (Unreported, Neilson J, District Court of New South Wales, 31 August 2004).

Neilson J was asked to consider ss 198J, 198K, 198L, 198M and 198N of the Legal Profession Act 1987 (NSW), which were added to the Act deal with the White Industries v Flower & Hart problem of unmeritorious legal actions. (This Act has since been replaced by the Legal Profession Act 2004 (NSW), but ss 345, 346, 347, 348 and 349 are in substantially similar terms to the sections mentioned above).

Section 198J provided:

(1) A solicitor or barrister must not provide legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(2) A fact is provable only if the solicitor or barrister reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.

(3) This Division applies despite any obligation that a solicitor or barrister may have to act in accordance with the instructions or wishes of his or her client.

(4) A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.

(5) Provision of legal services in contravention of this section constitutes for the purposes of this Division the provision of legal services without reasonable prospects of success.

(bolding added)

As you can see, s 198J(4) stipulates that a claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. The section does not say anything about the quantum of damages being reasonable.

At [88], Neilson J held as follows:

The fifth element is “reasonable prospects of damages being recovered in the action”. This formulation arises from combining subsections (1) and (4) of section 198J. An important word to note is the word “damages”. It is not qualified by any article or adjective. It does not require that a plaintiff recover “the damages claimed” or “all damages”. It merely requires the recovery of “damages”. One can properly construe “damages” as being “any damages” or “some damages” but not as “all the damages claimed”. At [44] I drew attention to the question of whether the statutory provision was directed to exaggerated or “ramped up” claims or to the more basic question of liability. In my view, nothing in section 198J affects exaggerated claims. There must be merely “reasonable prospects” of recovering “damages”. The applicants’ only remedy, if aggrieved by an exaggerated claim is under section 148E of the District Court Act or under DCR Pt 39A r 14.

Thus, an exaggerated or ramped up claim for damages will not be an abuse of process under the Legal Profession Act. As long as there is a prospect of recovering damages, it doesn’t matter if you say that you want 10 times more than is reasonable.

In other news, of course some parts of the press are now flinging mud about Fraser-Kirk. And people wonder why victims are reluctant to bring sexual harassment claims?

Update 3

The Statement of Claim is available online at The Australian. Fraser-Kirk makes no claims under the Sex Discrimination Act whatsoever in the Statement of Claim. Nonetheless, she has parallel proceedings under the Sex Discrimination Act which are presently being heard before the Australian Human Rights Commission (AHRC). She reserves the right to join the Sex Discrimination Act proceedings with the other Federal Court proceedings.

Interestingly, her claims are primarily for misleading and deceptive conduct in the course of employment: that is, David Jones represented that she would find it a “fun” and “rewarding” workplace, and it represented via its Code of Conduct that it was committed to a safe workplace in which bullying and sexual harassment was not permitted. She is also suing the individual directors in respect of comments made about herself and McInnes once the allegations became public.

She also alleges breach of employment contract, breach of duty of care to provide a safe workplace, trespass on the part of McInnes, and a “Claim in Equity” that she was induced to adopt certain assumptions upon which she relied to her detriment. (What is the cause of action intended to be, I wonder? Some kind of estoppel?)

The punitive damages are expressed to be in relation to the breach of duty of care and trespass, not for breach of contract or the misleading and deceptive conduct. As I have discussed in detail below, I do not think breach of contract or misleading and deceptive conduct would sound in damages in Australia. Historically punitive damages are available for torts because torts involve wrongs to the person and/or property, and this is something which the law is concerned to punish and deter.

By Legal Eagle | Posted in Feminism, Law, Society | Tagged , , , , , , , , , , , , , | Comments (65)

Scanning Judges

July 31, 2010 – 4:56 pm
By Legal Eagle

One of the reasons I really liked working at the Supreme Court was that it was a bastion of intelligent eccentricity. Many of the judges were unusual people, but they were also intelligent, compassionate people. I know that at least some judges were aware of their eccentricity. One judge (now retired) came in to my office to ask me why I hadn’t attended a particular meeting. “I’m allergic to nuts…” I began. I was going to explain that I’d had to go to hospital. But I never got a chance. The judge cocked his head, and with twinkling eyes exclaimed, “I’d better keep away from you then!” He then wheeled out and left the room, leaving my colleagues and I stunned for five seconds. Then we fell on the ground in hysterics.

Sadly, I expect the room for intelligent eccentrics will be reduced if Rob Hulls gets his way:

Two months after announcing a judicial commission to monitor judges’ behaviour as part of a new anti-corruption regime, Attorney-General Rob Hulls is moving to overhaul the way judges are appointed.

Mr Hulls wants to modernise the judiciary. He says to meet the demands of the 21st-century justice system, the modern judge needs to have broader skills than the traditional attributes of high-level legal and technical skills.

”They need to be effective communicators on and off the bench, adept in … dispute resolution and willing to adapt to change and extend their understanding of the law.”

In a discussion paper to be released today, Mr Hulls says revamping the way judges are selected could ”improve the transparency, quality and diversity of appointments” and strengthen people’s confidence in the courts.

The 36-page Department of Justice paper says the government needs to ”ensure the judiciary reflects the diversity of the community” by moving beyond the tradition of judges coming from the bar and being predominantly middle-class, Anglo-Saxon men.

Meanwhile, Frank Vincent, a former judge of the Trial Division and the Court of Appeal, has said:

Some judges were intellectually or temperamentally unsuited to the job, a retired senior Supreme Court judge said.

Frank Vincent said some judges stayed too long in the job and “get sour”.

Others, he said, “suddenly decide they’re infallible and don’t want to listen because they know it all”.

Mr Vincent said there were four kinds of judges, ranging from those who were “good-hearted but not very bright” to those “temperamentally unsuited but very smart”.

Mr Vincent, who was one of Victoria’s most experienced and respected judges, made the controversial comments while endorsing a government review of the judicial appointment process.

Vincent’s four types of judges were as follows:

  1. Good-hearted but not very bright individuals who were unlikely to do anything terribly wrong.
  2. Good-hearted people of good personality who were bright and made good judges.
  3. Nasty individuals who were not very bright, but who could be handled most of the time through the appeal process.
  4. Those who were temperamentally unsuited but very smart – a serious problem for any legal system.

I can’t help wondering which judges of my acquaintance he’d put in which category!

In this post, I want to focus first on category 3 and then on category 4.

Category 3: the petty tyrants

First, I know that there are always judges who are petty tyrants. Any litigator knows that. They fall into category three of Vincent’s scheme.

There is a judge who has a thing about stapled affidavits. He has been known to throw unstapled affidavits across the court room. And if he sees evidence that an affidavit has had staples removed and then been re-stapled, he reacts very badly, and accuses the lawyer concerned of unprofessional behaviour. There is some method behind his madness; he is concerned that people will tamper with affidavits after they’ve been sworn. But quite clearly, he’s never had to deal with the annoyance of photocopying a 100 page affidavit without unstapling it. He doesn’t know how much easier it is when you take the staple out and feed it through the photocopy feeder. What did I do when appearing before this individual? I’d take out the staples, set them aside carefully, photocopy the affidavit and annexures in the feeder tray, and then replace the staples exactly where they had been, in the existing punctures. Which proves how silly his whole concern is in the first place. Still, at least he is consistent in his obsession. Once you know about it, you can handle it and work around it.

I have known of other petty tyrants (both judges and magistrates) who lose their temper over the smallest things. They pick on failure to comply with the minutiae of procedure because they aren’t clever enough or motivated enough to deal with the big issues. The law does tend to attract people who focus on detail and can’t see the wood for the trees. That’s why I think every lawyer should have a notice saying, “What’s it all about, really?” on the back of their door.

I can’t stand the petty tyrants. I think they are worse that Vincent’s category four, to be honest. They bring the law into disrepute with their pettiness. They are extremely depressing to deal with, because when you come before one of them, your heart sinks and you suspect that your claim won’t be dealt with on the merits. It’s awful when you have to tell a bewildered client that you’ve drawn one of those judges or magistrates. The claim then becomes a bit of a lottery. It depends in large part on the mood of the individual on the day, and what particular technicality he or she has decided to focus on. Justice becomes quixotic.

Category 4: the “temperamentally unsuited”

Vincent’s fourth category is intelligent judges who are “temperamentally unsuited” to office. I wonder what this means exactly. Given that he seems to regard  “good-hearted” judges as positive, even if they are unintelligent (see Category 1) I suspect he regards people who are not “good-hearted” as “temperamentally unsuited”. What does “good-hearted” mean? Does it mean that those who are “good-hearted” are compassionate, or want to achieve justice? I’m going to assume that it means that the judge in question has the proper motive when making a judgment, which is to resolve the dispute between the parties fairly.

As I’ve said previously, I think the essence of a good judgment is one in which the judge remembers at all times that she is the arbiter of people’s rights in society, and that she is mindful of the power she has over the individuals appearing before her. A judge does not despise the parties before her, or think that she has a right to get the parties to do whatever she wishes. A good judgment uses the law to achieve as fair a result as possible between the parties.

Personally, I believe that some members of the present High Court could be faulted for forgetting that they are resolving a dispute between individuals, not merely pushing a barrow which advances their particular preferred interpretation of the law.

And personal snarking towards judges whose opinion differs from one’s own has no place in a judgment, as I’ve also said before:

I…think rudeness and personal point scoring against other judges in judgments is the height of unprofessional behaviour, and extremely disrespectful to litigants. …

A judgment is not a personal grandstand for the judicial ego. Litigation occurs because two parties have a dispute and cannot resolve their differences otherwise. Presumably, these issues are very important to the parties if they have made it to the courtroom. They will already have spent a good deal of time, energy and money in litigation. It cannot be forgotten that judges have an immense amount of power over the lives of others.

A judge’s decision affects a person’s future in a profound manner. And a good judge will be mindful of this.

Physical and mental checks

What then of the physical and mental checks which are proposed to be made of potential judges? Part of the reason behind these checks is said to be to avoid the problem faced by Judge Dodd, a NSW District Court judge who fell asleep during trials. As I’ve said in previous posts, I have sympathy for Judge Dodd. His Honour suffered from severe obstructive sleep apnoea, for which he was later successfully treated so that he no longer fell asleep in court, but  he was still forced to retire on “health grounds”. It is a good idea for potential judges to be screened for these kind of problems before they take office.

There was another judge of whom I heard who was reputed to have a severe drinking problem. I never met him in person or saw him on the bench. It’s probably a good idea to screen for those kind of problems too, and to manage them appropriately when they manifest after appointment.

What of other health problems? I knew another Judge who was diagnosed with cancer the day before he was appointed. He nonetheless took office, and rightly so, because he was just a fabulous person. He did manage a few trials. He was still coming into chambers a week before his death. In explaining why he still came to work, he said to me, “If I just stop now, I may as well give up.” Sadly, he died a year after taking office, something which still makes me sad. (Oh dear, I’m crying now.) I wouldn’t want someone like him to be prevented from taking office.

Then there’s the “mental checks”. Obviously, you wouldn’t want to appoint someone who had mental health problems which prevented them from doing their job adequately. But what does “mental checks” mean? The thing that worries me is that any kinds of eccentricity would be weeded out. Some judges I’ve known have been really quite odd personalities but exceptional judges.

And there’s the question of depression, which is endemic among lawyers. Indeed, a New South Wales District Court judge recently came clean on his own battle with depression to an International Judges’ Conference. Unfortunately, it’s something that’s not often discussed. Suffering from depression doesn’t stop you from doing a good job, particularly if it’s properly recognised and treated. Nonetheless, there was a judge in New South Wales who fell behind on judgments by extraordinary amounts because he was depressed. It is very important to allow people with depression which is properly managed to become judges, but also to recognise and treat depression appropriately when it is suffered by a judge and when the symptoms interfere with the ability to complete one’s job adequately.

I think the emphasis should be on putting in place better ways of managing physical and mental illness when these are suffered by judges.

Diversity

As I’ve said before, I maintain diversity on the bench is in principle a Good Thing. However, to introduce it as a specific criterion for appointment seems very dangerous to me.

Once you introduce diversity as a specific criterion, you start to get all kinds of personal questions about the potential judge’s background. Just look at the kind of stuff which has arisen about Obama’s nominations to the Supreme Court. Ultimately, it’s irrelevant who a judge sleeps with, who a judge’s parents were, what ethnicity a judge is, or whether a judge chooses to worship at a temple, a church, a mosque or a synagogue (or nowhere at all, as the case may be).

The main question is (or should be): does that judge do a good job? I care about the ability of a judge to put aside personal upbringing and prejudice and to judge fairly according to the law. If we have a diverse judiciary full of petty tyrants, then it’s not worth a fig. I also care about getting judges who do not push their own personal barrows, but maintain empathy for individual litigants who appear before them. I want judges to be thoughtful and open-minded.

Job interviews and role plays

My heart sank when I read that candidates for judicial office could be required to attend job interviews and ”selection exercises such as role plays”.

Let’s look at job interviews first. I’ve never been that happy with the idea of job interviews as a method of choice. It probably has something to do with the fact that I don’t perform well in job interviews, although I’ve improved vastly over the last ten years. I’m a shy person, and I am not good at selling myself. This might surprise those who have been taught by me, or those who have attended a conference at which I have presented. When I am presenting to an audience, however, another person takes over. I call her Performance Katy. She is confident and loud. She is not at all shy. She might have galloped around the other day in Trusts class, pretending to be a crusader going off to war, leaving behind a trusted friend to administer the estate for crusader’s wife and children.

I know quite a few judges like this too. Behind closed doors, they are shy and very nice to work with, but on the bench, they are master or mistress of their domains, stern and scary. Judge-persona takes over. I think it would be a pity if a shy person who would be a fantastic judge got passed over because that judge didn’t perform well in job interviews.

Then on to the “role play”… If done well it would be okay (something like a moot or a witness-examination, which are legal role plays familiar to any litigator). However, a nasty part of me can imagine the role plays being  mawkish and pathetic. And then I can imagine that if I was in that position, I’d say how mawkish and pathetic the role play was, and I’d be crossed off the list. But seriously, surely honesty and a willingness to speak against the grain is one of the things that should be valued in a judge? I suspect that’s why so many judges are eccentric – they are the kinds of people who speak their minds without fear or favour, and that’s something which should be valued in a judge. And as a friend and ex-associate said, if we had these kind of selection processes, one very important section of the community would be excluded from the Bench: the section that doesn’t put up with management twaddle.

Will the new process get us better judges?

To be honest, I don’t think Hulls’ process will necessarily mean that we get better judges. How on earth would a job interview screen against the petty tyrants, or the temperamentally unsuited? I’ve seen some absolutely crazy people who perform very well in job interviews. The only way in which you can really tell how someone will do is to put them in the job, and watch for a while. Maybe we need to have probationary periods for judges? Although this might be problematic for the purposes of the rule of law, because a judge who decided cases against the government would then be open to being removed on spurious grounds.

My worry is that job interviews might actually work against eccentrics who speak their mind, and will skew towards people who are good at meeting criteria instead. I think it’s really important to have judges who are prepared to speak their mind and think outside criteria, no matter how unpopular that might be.

I don’t know about “teaching” people to be better judges either. It’s a bit like good management or good teaching abilities – you either have it or you don’t. The best way to learn is not to study but to do, and to learn through experience.

I think that if a person gets to the bench and finds they are unsuited towards the judiciary, there should be a process for that person to back out gracefully. Indeed, I understand that this happens from time to time, and that sometimes, judges leave after they find that the bench is not for them. One judge I knew said that it was a very lonely life, and that he really didn’t like that aspect. Others don’t like the constant grind of judgment writing. And if a judge “goes sour” or think they are infallible, I think his or her colleagues should gently approach the judge and tell them that perhaps they should seek another position.

There should also be clearer processes in place to intervene if judges display health problems, or suffer from depression, or drink too heavily, and this affects their ability to do their job. I’d suggest a tactful approach at first, perhaps by colleagues, and then by more senior judges later. If a judge refuses to get treatment and still can’t perform his or her duties, it is in these circumstances that the judge should be removed (or at least, encouraged to step down from the bench).

Update:

You can make a submission to the Department of Justice on the judicial appointment process.

I have already done so, making many of the points in this post. Gosh, I’ve never had the energy to do a submission before.

Update 2:

Warren CJ makes an excellent response to Hulls’ plans. She suggests that the process should be more like the process already in place for Federal Court Judges.

By Legal Eagle | Posted in Law, Public Policy, Society | Tagged , , , , , , , , , , , , , , , , , , | Comments (32)

Computer says “no”

July 30, 2010 – 3:44 am
By DeusExMacintosh

Work and pensions minister Chris Grayling is conducting an urgent review into a new medical test for incapacity benefit after fresh figures showed only 6% of those tested were deemed to be totally incapable of working.

The figures, covering all new claims from October 2008 to the end of November 2009, show 39% are being tested as fit for work and a further 37% are dropping their claim before the assessment is complete. The figures are widely out of line with estimates initially made by officials from the Department for Work and Pensions.

The figures suggest that either tens of thousands of incapacity benefit claimants are not as ill as they claimed, or that something is wrong with the way the tests are being applied. So far the tests have applied only to new claimants for the employment support allowance, the successor benefit to incapacity benefit, but ministers are planning to apply the test to nearly 1.6 million people already on incapacity benefit over the next three years or so.

Speaking to the Guardian, Grayling today did not seize on the figures to claim there was an army of scroungers, but said instead many people had been made anxious about the figures. He did not suggest there was an army of scroungers, but said: “We do not think and nor does anybody else think there is anything wrong in principle about these tests. Almost every major group working with people suffering long-term disability or sickness wants them to have the opportunity to get back into the workplace. But we have to look at how [the tests] are working in practice.”

Which is interesting because when speaking to The Telegraph (and virtually everyone else) his line has been considerably harsher.

“The vast majority of people who are applying for these benefits are being found fit for work or have stopped their claim.

“These are people who under the old system would have been abandoned on incapacity benefits. It’s a clear indication of why reform is so urgently needed.

“This is exactly why we are going to reassess everyone claiming incapacity benefits for their ability to work, from this October.

“They will now be given the support they need to get back to work and will be expected to look for work if they are able to do so.”

And if they’re not able to do so, they will be told they are anyway. A whole fortnight ago, on July 6th, Graylings response to parliamentary enquiries was that…

The Department undertook an internal review of the Work Capability Assessment which was published on 29 March 2010. The review found that generally the assessment accurately identifies individuals for benefit.

Perhaps he simply ignored the Work and Pensions Select Committee report from January that identified a major problem with the methodology being used by private company ATOS during the Work Capability Assessment.

70. CAB [Citizens Advice Bureau] argued that the computer generated answers narrowed the scope of the WCA because “stock phrases” did not accurately reflect some conditions. The LiMA system used by Atos Healthcare allows the doctor conducting the assessment to “cut and paste” these stock phrases into the report. RSI Action claimed that Atos Healthcare professionals have often misrepresented claimants’ responses on the assessment document.[48]

71. We also received evidence from a number of individual claimants, who reported poor experiences of the medical assessment process.

72. We received many complaints about the medical assessment process ranging from dissatisfaction from claimants who felt they were treated badly to criticisms of the computerised assessment process. We appreciate that DWP must strike a balance between providing a personalised service and ensuring a consistent approach to medical assessments but it is crucial that claimants’ responses are recorded accurately. We ask the Department to investigate the concerns raised to us with Atos Healthcare and inform the Committee of the outcome.

These latest results from the Department of Work and Pensions show that ESA success rates have actually DECLINED since August 2009 when 10% qualified for the Support group, 22% for the Employment group and 69% were either deemed fit for work and/or disappeared.

Not the first time, the Computer says “no”.

By DeusExMacintosh | Posted in Britain, Economics, Funnies, Personal, Politics, Popular culture, Society | Tagged , , , , , , , , , , , , | Comments (10)

Sorry, folks.

July 29, 2010 – 11:39 am
By Jacques Chester

You’ve probably noticed some slowness in the past 2 hours. That’s me, your loving Ozblogistan admin / tyrant, trying to debug a plugin. Apparently asking for debugging information is too much for PHP and MySQL to bear, so they threw an unedifying tantrum which choked the site.

By Jacques Chester | Posted in Site News | Comments (2)

The Dog Whistle

July 29, 2010 – 8:35 am
By skepticlawyer

I am not going to link to anyone making ‘dog whistling’ claims this election campaign; there are too many of them. Instead, I am going to make a few requests.

1. Before using this phrase, please take some care to find out what it means.

2. When claiming that this or that politician is ‘dog whistling’, understand and appreciate that your claim is a large one, involving — among other things — an insight into a given individual’s motives. Figuring out other people’s motives is difficult, as anyone who has ever had anything to do with a major criminal trial can tell you. Unless you are psychic or a Supreme Court judge about to deliver your summing up to the jury, stop it.

3. Remember that sometimes a cigar is just a cigar. Tony Abbott has always portrayed himself as a family man, including when he was up against equally big family man Kevin Rudd. He even did the family man schtick when John Howard was PM, for goodness’ sakes. Similarly, Julia Gillard has never made a habit of parading her partner around the place; he’s only ever popped up occasionally. Reading some sort of dog whistle into Abbott’s ‘familism’ and Gillard’s lack thereof involves ascribing a degree of manipulativeness to a pair of fairly standard pollies that would do credit to Josef Goebbels. Stop it.

4. Elections may be fun, but statistically, a single vote is close to meaningless (scroll down for data); worrying about dog whistles ‘getting through’ to the general public is a bit like trying to solve an algebra equation by chewing bubble gum. If you must vote (and in Australia, you must), then make sure you do so for the right reasons; here is the Undercover Economist, Tim Harford:

For this reason, nobody votes hoping that his vote will change the outcome. We vote instead because we like to feel involved, out of a sense of duty, or – importantly – to avoid being criticised by our friends and loved ones. These motives are enough to get about half of us out to the polls, but not enough to persuade us to engage in pointless research into the details of each candidate’s policy platform. All of which explains why many people vote, but few do so in an informed fashion.

By skepticlawyer | Posted in Economics, Media, Politics | Tagged , , , , , , , , | Comments (11)