tag:theconversation.com,2011:/us/topics/legal-action-13421/articlesLegal action – The Conversation2023-09-27T20:05:29Ztag:theconversation.com,2011:article/2137542023-09-27T20:05:29Z2023-09-27T20:05:29ZEven if Qantas is fined hundreds of millions it is likely to continue to take us for granted<figure><img src="https://images.theconversation.com/files/550516/original/file-20230927-25-ha0bmh.png?ixlib=rb-1.1.0&rect=119%2C724%2C3161%2C1670&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>As Qantas faces up to tough questioning from a Senate committee and a claim from the Australian Competition and Consumer Commission (ACCC) for as much as <a href="https://www.bandt.com.au/qantas-should-be-fined-hundreds-of-millions-if-found-guilty-of-misleading-ads-accc/">A$600 million</a> for allegedly selling tickets on more than <a href="https://www.accc.gov.au/media-release/accc-takes-court-action-alleging-qantas-advertised-flights-it-had-already-cancelled">8,000</a> “ghost flights” it had already cancelled, its customers might be thinking things are about to get better. </p>
<p>But there are reasons to think they won’t. At the heart of both the ACCC’s <a href="https://www.bandt.com.au/qantas-should-be-fined-hundreds-of-millions-if-found-guilty-of-misleading-ads-accc/">lawsuit</a>, and the airline’s separate refusal to quickly refund hundreds of millions of dollars worth of <a href="https://www.afr.com/rear-window/qantas-grand-theft-klepto-20230829-p5e0g8">credits</a> for flights cancelled during COVID, lies the indifference to customers typical of a duopolistic market.</p>
<p>Qantas does face competition on international routes, although the government’s action in denying Qatar Airways extra landing rights has <a href="https://theconversation.com/what-will-putting-the-interests-of-qantas-ahead-of-qatar-airways-cost-1-billion-per-year-and-a-new-wave-of-protectionism-of-legacy-carriers-212495">constrained</a> that competition.</p>
<p>But, with only one exception – Virgin – it faces very little competition within Australia, given the limited offerings by airlines such as Rex and Bonza.</p>
<p>On Wednesday former ACCC Chair Rod Sims told the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Commonwealth_Bilateral_Air_Service_Agreements/cbasa">Senate inquiry into air service agreements</a> Qantas was able to use its leading market position to charge higher prices than it would otherwise have been able to.</p>
<p>One could put it more generally: Qantas had the power to treat customers worse than it would otherwise have been able to.</p>
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<h2>What the ACCC alleges</h2>
<p>The ACCC alleges Qantas engaged in false, misleading or deceptive conduct in breach of the Australian Consumer Law in 2022 by selling tickets for flights that had already been cancelled, and by falsely representing to consumers who already had tickets that their flights had not been cancelled.</p>
<p>Under the law, where liability for “misleading or deceptive conduct” is concerned, the reasons for the conduct don’t matter, meaning all that is likely to matter is whether the commission’s claims about Qantas’s conduct are true.</p>
<p><a href="https://gibbswrightlawyers.com.au/publications/misleading-deceptive-conduct">Section 18</a> of the Australian Consumer Law simply says:</p>
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<p>a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.</p>
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<p>For online bookings, the commission is suggesting Qantas may have made several misleading representations, including indicating flights were available when they were not, confirming bookings for flights that were not available, and displaying unavailable flights on customers’ “manage booking” pages.</p>
<p>While the ticket contracts may have included disclaimers, these would be unlikely to have force in the face of Section 18. The law does not permit contractual language to exclude liability for contraventions of this provision. </p>
<p>A disclaimer can be relevant to the factual question of whether a party was misled but, given <a href="https://www.tandfonline.com/doi/abs/10.1080/1369118X.2018.1486870">98%</a> of online consumer contracts are unread, it’s unlikely Qantas would be able to rely on disclaimers to claim customers weren’t misled.</p>
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Read more:
<a href="https://theconversation.com/booking-customers-on-cancelled-flights-how-could-qantas-do-that-212793">Booking customers on cancelled flights – how could Qantas do that?</a>
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<p>Even if the commission is successful in getting the Federal Court to award a penalty amounting to hundreds of millions, such a fine is likely to be manageable for Qantas given its <a href="https://www.abc.net.au/news/2023-08-24/qantas-profit-2023-annual-results-alan-joyce/102763766">$1.7 billion</a> 2022-23 profit.</p>
<h2>Qantas ill-prepared for questions</h2>
<p>At Wednesday’s Senate hearing Qantas chief executive Vanessa Hudson and Chairman Richard Goyder were not prepared to answer several questions, asking for them to be put on notice.</p>
<p>They also passed up the opportunity to provide the committee with a written statement addressing the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Commonwealth_Bilateral_Air_Service_Agreements/cbasa/Terms_of_Reference">formal topic</a> of its inquiry which was the impact of government decisions about landing rights on competition in the aviation industry and the cost of living pressures on Australian families and businesses.</p>
<p>Pressed on whether Qantas would publish a redacted version of its representations to the government about foreign airlines’ bids for landing rights, Hudson declined, although she said Qantas would provide them in confidence. </p>
<p>Goyder told the hearing Qantas had “genuine contrition for where we are at” but had “sound commercial reasons” for many of the decisions it took during the years since the outbreak of COVID, including what the High Court subsequently found was an <a href="https://www.abc.net.au/news/2023-09-13/high-court-rules-in-qantas-twu-battle-over-ground-crew-staff/102848684">illegal decision</a> to sack 1,700 ground staff.</p>
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Read more:
<a href="https://theconversation.com/high-court-ruling-vindicates-sacked-qantas-workers-but-doesnt-stop-the-outsourcing-of-jobs-in-the-future-213452">High Court ruling vindicates sacked Qantas workers but doesn't stop the outsourcing of jobs in the future</a>
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<h2>What matters to Qantas is slots</h2>
<p>While there is little that can be done to make Qantas more responsive to its customers while it dominates the domestic aviation market, <a href="https://www.accc.gov.au/system/files/ACCC%20submission%20in%20response%20to%20the%20Aviation%20White%20Paper%20terms%20of%20reference%20-%20March%202023.pdf">freeing up landing slots</a> at airports would help loosen that dominance.</p>
<p>The current rules allow incumbent airlines such as Qantas to apply for more slots at airports such as Sydney than they will require, so long as they use them 80% of the time.</p>
<p>In a report to the government in 2021 former Productivity Commission chief Peter Harris recommended overhauling the system at Sydney Airport to make it <a href="https://www.infrastructure.gov.au/sites/default/files/documents/sydney-airport-demand-management-review.pdf">easier</a> for new entrants to get slots.</p>
<p>Among the recommendations was an independent audit of cancellations by a “reputable, unconflicted auditor”.</p>
<p>The government has yet to respond to the report, although when releasing the government’s aviation green paper earlier this month, Transport Minister Catherine King indicated she soon would.</p>
<p>Implementing needed reforms to free up slots at key airports would help to promote better consumer outcomes. However, profound change in Australian air travel seems unlikely for the foreseeable future.</p><img src="https://counter.theconversation.com/content/213754/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mel Marquis has in the past collaborated with the ACCC on unrelated matters. He has no involvment or interest in the pending litigation discussed in this article.
</span></em></p><p class="fine-print"><em><span>Neerav Srivastava does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The only thing Qantas seems to fear is losing landing slots. It’s time to reallocate the slots it doesn’t use.Mel Marquis, Deputy Associate Dean and Senior Lecturer in Law, Monash UniversityNeerav Srivastava, PhD Candidate and Teaching Associate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1497882022-08-15T15:58:19Z2022-08-15T15:58:19ZTavistock Clinic fallout: what the courts would consider in litigation by former patients<p>Clinical judgements and the clinical counselling at the Tavistock Centre, which since 1989 has provided the UK’s only gender identity clinic for children and young people, now <a href="https://inews.co.uk/news/gender-identity-clinic-tavistock-centre-nhs-trust-legal-action-patients-closure-1789336">seem set to be examined by the courts</a> in clinical negligence claims brought by some former patients. </p>
<p>The NHS trust that runs the clinic, already set to close following the <a href="https://cass.independent-review.uk/publications/interim-report/">February 2022 interim review</a> by Hilary Cass, former president of the Royal College of Paediatrics and Child Health, is reportedly facing a mass action lawsuit, with a particular focus on the use of so-called puberty blocker drugs. </p>
<h2>The Cass review</h2>
<p>Cass’ review built on the findings of the Multi-Professional Review Group (MPRG) set up in 2021 by NHS England (which has not yet formally reported) and a 2020 Care Quality Commission <a href="https://api.cqc.org.uk/public/v1/reports/7ecf93b7-2b14-45ea-a317-53b6f4804c24?20210120085141">review</a>. Her report criticised the provision of children’s gender identity services by only one centre, and recommended the establishment of regional services. </p>
<p>But the concerns identified were not only structural. Cass agreed with the MPRG’s criticism of the centre’s “predominantly affirmative, non-exploratory approach, often driven by child and parent expectations and the extent of social transition that [had] developed due to delay in service provision.” Primary and secondary care staff told her that they felt under pressure to adopt an unquestioning affirmative approach, an approach at odds with the approach they were trained to adopt in other clinical contexts.</p>
<p>Cass noted “a lack of agreement, and in many cases a lack of open discussion, about the extent to which gender incongruence in childhood and adolescence can be an inherent and immutable phenomenon for which transition is the best option for the individual, or a more fluid and temporal response to a range of developmental, social, and psychological factors. Professionals’ experience and position on this spectrum may determine their clinical approach.”</p>
<p>One of Cass’s reform proposals is particularly illuminating. In <a href="https://cass.independent-review.uk/publications/">a letter</a> to NHS England in July 2022, Cass asserted that staff involved in gender realignment clinics: “Should maintain a broad clinical perspective by working across related services … in order to embed the care of children and young people with gender-related distress within a broader child and adolescent health context.” </p>
<p>Gender realignment, in other words, should not be seen as an intellectual, ethical or clinical island unto itself, where different standards and skills should apply. The clinical and ethical issues raised by gender alignment are related, sometimes crucially, to other areas of paediatric care.</p>
<p>In clinical negligence proceedings, how might such claims be framed? We should be cautious about drawing conclusions from Cass’s report (it is an interim report) but if her criticisms are just, there would seem to be several possible types of allegation, including inadequate investigation, ignoring other pathologies, the use of inadequately researched treatments, and issues about patient consent.</p>
<h2>Inadequate investigation</h2>
<p>Patients presenting to gender realignment clinics are complex. Cass noted that “it is highly unlikely that a single cause for gender incongruence will be found. Many authors view gender expression as a result of a complex interaction between biological, cultural, social and psychological factors.” She observed, too, that about a third of the children referred to the Tavistock service had autism or another type of neurodiversity, and that children in care were over-represented.</p>
<p>Such complexity demands sophisticated, nuanced and multidisciplinary assessment. The Tavistock’s assessments will be rigorously probed. If an assessment would not be endorsed by a responsible body of opinion in the relevant specialty (the famous <a href="https://www.cambridge.org/core/journals/cambridge-law-journal/article/abs/trumping-bolam-a-critical-legal-analysis-of-bolithos-gloss/12E1A801046FFA958F745BC5E83776DC">Bolam test</a> – as explained in <a href="https://bit.ly/3QHGlm5">the case</a> of Bolitho v City and Hackney Health Authority – ubiquitous in professional negligence litigation), there will be a breach of duty. And if that breach has caused some damage or loss recognised by the law (for instance physical injury), compensation will be payable.</p>
<h2>Other pathologies</h2>
<p>Many of the children presenting to the Tavistock, said Cass, had complex needs, but “once they are identified as having gender-related distress, other important healthcare issues that would normally be managed by local services can sometimes be subsumed by the label of gender dysphoria”. </p>
<p>The long waiting lists at the Tavistock made this issue worse: children could be left “a significant period of time without appropriate assessment, treatment or care”. If overlooking those other healthcare issues could be characterised as negligent, and damage resulted, again compensation would be due.</p>
<h2>Puberty-blockers</h2>
<p>Instituting treatments for which there was an insufficient justification in the literature is the most controversial, and likely to be the most relevant, issue in the context of a clinical negligence case. The Tavistock has been in the spotlight for its use of <a href="https://theconversation.com/what-are-puberty-blockers-and-how-do-they-work-151384">puberty-blocker drugs</a>, which are intended to prevent puberty until a definitive decision has been made about gender identity. Critics say that not enough is known about what irrevocable changes that these drugs may cause. </p>
<p>Cass noted that much of the existing literature about puberty-blockers is based on cohorts of predominantly birth-registered males presenting in early childhood. But the more recent case mix is wholly different: it is predominantly birth-registered females presenting in their early teens. </p>
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Read more:
<a href="https://theconversation.com/what-are-puberty-blockers-and-how-do-they-work-151384">What are puberty blockers, and how do they work?</a>
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<p>In her letter, Cass said that without fully understanding the role of adolescent sex hormones in driving the development of sexuality and gender identity through the early teens, we cannot be sure about the impact of stopping these hormone surges on psychosexual and gender maturation. “We therefore have no way of knowing whether, rather than buying time to make a decision, puberty blockers may disrupt that decision-making process,” she said.</p>
<p>There was further concern around surges in adolescent sex hormones which “may trigger the opening of a critical period for experience-dependent rewiring of neural circuits underlying executive function (ie maturation of the part of the brain concerned with planning, decision making and judgement). If this is the case, brain maturation may be temporarily or permanently disrupted by puberty blockers, which could have significant impact on the ability to make complex risk-laden decisions, as well as possible longer-term neuropsychological consequences. To date, there has been very limited research on the short, medium or longer-term impact of puberty-blockers on neurocognitive development”.</p>
<p>These words will have caused consternation in the corridors of <a href="https://resolution.nhs.uk/">NHS Resolution</a>, which handles claims against NHS trusts. Would a responsible body of medical opinion have prescribed puberty blockers on the basis of the available evidence? If not, and damage was caused by the prescription, claims might succeed.</p>
<h2>Lack of informed consent</h2>
<p>Over the last few decades, English law in relation to consent to medical treatment has <a href="https://academic.oup.com/medlaw/article-abstract/27/1/108/5033542">increasingly focused</a> on the vindication of patient autonomy. To be lawful, treatment must be adequately explained. </p>
<p>The Tavistock had an <a href="https://www.theguardian.com/society/2022/mar/10/nhs-gender-identity-service-for-children-cant-cope-with-demand-review-finds">overwhelming workload</a> (referrals climbed exponentially over the last few years), and that may have meant less time for deliberation and explanation. Cass reported that “parents have … raised concerns about the vulnerability of neurodiverse children and young people and expressed that the communication needs of these children and young people are not adequately reflected during assessment processes or treatment planning”. Lawyers may ask if an “affirmative culture” contributed. </p>
<p>And, overwhelmingly, there is again the issue of under-researched puberty blockers. In a “letter to children and young people” at the beginning of her report, Cass wrote: “Whenever doctors prescribe a treatment, they want to be as certain as possible that the benefits will outweigh any adverse effects so that when you are older you don’t end up saying ‘Why did no-one tell me that that might happen?’ This includes understanding both the risks and benefits of having treatment and not having treatment.” That’s an accurate statement of the law and the ethics.</p>
<p>Wholly new treatments are not necessarily inappropriate. If it were otherwise, there could be no innovation. But where a treatment is not supported by the evidence base one would usually expect, the process of obtaining consent must be followed meticulously. There is a particularly onerous burden of explanation. Treatment without adequate explanation is a breach of duty.</p>
<p>How will the threatened litigation affect gender reassignment clinics?</p>
<p>Cass was clear: gender reassignment services for children and young people should not be reduced or stopped: “The reverse is true … more services are needed for you, closer to where you live”. The NHS is to create a network of regional hubs with an initial two in London and Manchester due to open fully in spring 2023. Litigation will not affect these proposals. </p>
<p>But the financial consequences of litigation will concentrate minds on what the services should involve. The number of potential claimants is unclear. Some of the claimant lawyers involved have spoken about more than 1,000 individual claimants, with individual claims running to millions of pounds: others <a href="https://inews.co.uk/news/gender-identity-clinic-tavistock-centre-nhs-trust-legal-action-patients-closure-1789336">have questioned</a> whether the number of claimants could be so large. </p>
<p>In any event, patients are likely to be investigated and counselled more fully in the future. Puberty blockers – at least for the now predominant patient group of birth-registered females in their early teens – are likely to stop, and to be the subject of intense research.</p><img src="https://counter.theconversation.com/content/149788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Foster does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>NHS trust could face compensation claims for millions in a litigation of the Tavistock Centre. But what claims would the courts consider?Charles Foster, Fellow of Green Templeton College, Visiting Professor at the Faculty of Law, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1297072020-01-14T19:09:10Z2020-01-14T19:09:10ZI’ve won cases against the government before. Here’s why I doubt a climate change class action would succeed<figure><img src="https://images.theconversation.com/files/309864/original/file-20200114-103954-1hpjtgb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bushfire-related class action suits against the government have had little success in the past, but there are other benefits to pursuing a case.</span> <span class="attribution"><span class="source">Steven Saphore/AAP</span></span></figcaption></figure><p>This summer’s bushfire apocalypse has caused many Australians to express their fury at a federal government they feel is either in denial about the impact of climate change or failing to address it sufficiently.</p>
<p>To many, the fact the Morrison government did not act on <a href="https://www.abc.net.au/news/2019-11-14/former-fire-chief-calls-out-pm-over-refusal-of-meeting/11705330">warnings from former firefighting chiefs</a> or <a href="https://www.afr.com/politics/federal/government-buried-climate-risk-action-plan-20200110-p53qeg">take meaningful action to implement a natural disaster plan</a> is further evidence of a broken political system and a political elite that isn’t listening.</p>
<p>When you consider the full impact of the bushfires, it is no wonder there are now <a href="https://www.change.org/p/a-class-action-against-the-morrison-government">calls</a> for a class action lawsuit to hold our government accountable for these failures and its inaction on climate change. </p>
<p>I’ve brought <a href="https://www.sydneycriminallawyers.com.au/blog/justice-for-offshore-detainees-an-interview-with-national-justice-projects-george-newhouse/">several class action suits</a> against the government on issues such as asylum seekers and breaches of privacy. Though climate change class actions might be possible elsewhere in the world, here in Australia, there are many obstacles to success. </p>
<h2>Legal precedent for climate change suit</h2>
<p>Many environmental activists have been emboldened by a significant legal victory by the Dutch environmental group, <a href="https://www.urgenda.nl/en/themas/climate-case/">Urgenda Foundation</a>. For seven years, the Urgenda Foundation has been fighting the Dutch government to force it to reduce Holland’s greenhouse gas emissions by 25% from 1990 levels by the end of 2020. </p>
<p>In December, the Dutch Supreme Court upheld the finding of the Hague Court of Appeals <a href="https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007">that</a> the government is obligated by the European Convention on the Protection of Human Rights to take </p>
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<p>suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk.</p>
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<p>The ruling further stated</p>
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<p>the obligation to take suitable measures also applies when it comes to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. </p>
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<p>The case <a href="https://www.nytimes.com/2019/12/20/climate/netherlands-climate-lawsuit.html">marked the first time</a> a government has been required by the courts to take action against climate change. </p>
<p>Urgenda’s success has led to <a href="https://www.urgenda.nl/en/themas/climate-case/global-climate-litigation/">similar legal strategies</a> in a host of countries, including Canada, France, Germany, India, New Zealand, the UK and the US. Australia, however, is missing from the list.</p>
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Read more:
<a href="https://theconversation.com/some-say-weve-seen-bushfires-worse-than-this-before-but-theyre-ignoring-a-few-key-facts-129391">Some say we've seen bushfires worse than this before. But they're ignoring a few key facts</a>
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<p>The reason is that a climate change class action is unlikely to succeed here because we do not have the equivalent of the European Convention on Human Rights incorporated into our legal system. </p>
<p>Without a bill of rights or other laws that mandate precautionary measures to mitigate climate change, it is unimaginable that an Australian judge would make a ruling requiring our government to take measures to reduce carbon emissions. </p>
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<h2>Class action suits against companies</h2>
<p>Nevertheless, our courts still have a role to play in cases related to natural disasters, particularly when the cause of damages is clearly identifiable. </p>
<p>There have been successful class action suits against businesses that were found to be responsible for igniting bushfires. </p>
<p>For instance, survivors of the devastating 2009 Black Saturday fires in Victoria <a href="https://www.abc.net.au/news/2014-07-15/black-saturday-bushfire-survivors-secure-record-payout/5597062">received a payout of A$500 million</a> from the power company SP AusNet after the courts ruled the fires were caused by poorly maintained powerlines. It was the largest settlement in Australian legal history.</p>
<p>In the current bushfire crisis, however, there is no faulty powerline to point to as the cause of the destruction. And when it comes to suing the government for failing to take steps to prevent a bushfire, things get much trickier.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309889/original/file-20200114-103994-7n1vuz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The 2009 Black Saturday fires killed 173 people and burned 450,000 hectares of land.</span>
<span class="attribution"><span class="source">Andrew Brownbill/AAP</span></span>
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<h2>What is required to sue the state</h2>
<p>For starters, it is doubtful the federal government would ever be held responsible for the current crisis because the states and territories are responsible under Australian law for bushfire fighting and land management. </p>
<p>Our courts are also reluctant to impose a duty or liability on any government regarding its policy-making functions – including how to prepare for a fire season. The courts have likewise been reluctant to mandate how a government allocates resources and how they make day-to-day fire management decisions.</p>
<p>As a result, claimants in bushfire cases have had to argue the government owed them a common law duty of care. And this can only be determined through a complex evaluation of the relationship between the person who is harmed and the state. </p>
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Read more:
<a href="https://theconversation.com/australian-building-codes-dont-expect-houses-to-be-fire-proof-and-thats-by-design-129540">Australian building codes don't expect houses to be fire-proof – and that's by design</a>
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<p>When our courts have considered claims arising from bushfires in the past, they have tended to put limits on the ability of individuals to take action against the state. </p>
<p>For example, when the Mount Stromlo Observatory <a href="http://www.spacedaily.com/news/aust-03a.html">was destroyed</a> in the 2003 Canberra bushfires, one of the affected parties, Electro Optic Systems Pty Ltd, sued the state of NSW. </p>
<p>The case alleged the state’s Rural Fire Service and National Parks and Wildlife Service owed a duty of care to the plaintiffs and that its fire-fighting strategy was flawed. As a result, the state should be held responsible for any losses. </p>
<p>Because the direct cause of the fire was a lightning strike, the ACT Court of Appeal <a href="https://jade.io/article/350654">found</a> the state did not owe a duty of care to property owners to prevent harm caused by the spread of the bushfire. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309891/original/file-20200114-103959-v8e5rb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Prime Minister John Howard visits the bushfire-damaged Mount Stromlo Observatory in 2003.</span>
<span class="attribution"><span class="source">David Foote/AAP</span></span>
</figcaption>
</figure>
<h2>Why legal action is important, even if it fails</h2>
<p>One final question remains: are our courts really the best place to address political inaction on climate change? </p>
<p>Court proceedings are slow and expensive. They will take years to reach finality, as the Urgenda case shows. And the climate crisis requires urgent action both locally and internationally. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-know-bushfire-smoke-affects-our-health-but-the-long-term-consequences-are-hazy-129451">We know bushfire smoke affects our health, but the long-term consequences are hazy</a>
</strong>
</em>
</p>
<hr>
<p>But despite the fact a successful class action along the lines of Urgenda is doubtful in Australia, there are some who may go forward with a case.</p>
<p>Many advocates believe that arguing for a reduction of CO₂ emissions in court would provide a compelling, fact-based case they could use to demand change from the government. And this process might give those who are concerned about our planet some hope in dark times.</p><img src="https://counter.theconversation.com/content/129707/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>George Newhouse is a director of the National Justice Project, an executive member of the Climate Justice Programme and the Company Secretary of the McKell Foundation. He was also Labor's candidate for Wentworth in the 2007 election.
</span></em></p>In a landmark case in the Netherlands, the courts have ordered the government to cut carbon emissions. A similar strategy would be difficult in Australia, but other legal options could bring change.George Newhouse, Adjunct Professor of Law, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/824752017-09-28T14:04:22Z2017-09-28T14:04:22ZThe possible outcomes for victims of the tainted blood scandal, 40 years on<figure><img src="https://images.theconversation.com/files/187834/original/file-20170927-24182-1rmkdyv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bad blood.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/blood-transfusion-medicinepatien-upper-gi-bleeding-442801486?src=tPdmzGJ09zyzFe3xmzYjwg-1-0">chaiyawat chaidet/Shutterstock</a></span></figcaption></figure><p>Following the announcement of a <a href="https://www.theguardian.com/society/2017/jul/11/contaminated-blood-scandal-theresa-may-orders-inquiry">public inquiry into the blood contamination scandal</a> of the 1980s, a UK court has now ruled that surviving victims may <a href="https://www.theguardian.com/society/2017/sep/26/contaminated-blood-scandal-victims-win-ruling-to-launch-high-court-action">sue the government to obtain compensation</a>. After decades, the thousands of victims and their families will feel they have finally been given an opportunity to obtain justice. </p>
<p>Around 5,000 people with haemophilia became infected with hepatitis C and HIV following treatment with contaminated blood products between the 1970s and early 1990s as a result of negligence and failings by UK health authorities. At least 2,400 have since died, but until now there has been no UK public inquiry into the scandal, or no real opportunity to obtain financial compensation for the harm caused.</p>
<p>The issue began with the development of <a href="https://www.wfh.org/en/page.aspx?pid=635">concentrated blood clotting factors</a> in the 1970s – products derived from blood that proved transformative to patients with haemophilia, allowing them to lead relatively normal lives. Health authorities all over the world aimed for self-sufficiency in blood-based products, but the UK was slow to do so. Instead, it relied on imports from the US, many of which were manufactured from blood plasma drawn from thousands of paid donors. These included products coming from high-risk populations such as prisoners and drug addicts, where hepatitis C and HIV were more common. While Scotland became largely self-sufficient, the rest of Britain still imported most of its supply from the US during the 1980s – when the risk of HIV was at its greatest. </p>
<p>The dangers of blood contamination were well understood at the time – and donor screening, HIV testing and heat treatment were recommended by scientists worldwide. But these precautions were not taken up quickly enough in the UK – often because of costs – meaning patients were exposed to unnecessary risks. </p>
<p>British victims and their families have fought for decades to get to the bottom of how such a failure could have happened, yet to date <a href="https://www.escholar.manchester.ac.uk/api/datastream?publicationPid=uk-ac-man-scw:198260&datastreamId=FULL-TEXT.PDF">no individual or public authority has been held accountable</a>. Victims were instead offered minimal “<a href="http://www.mirror.co.uk/news/uk-news/victims-contaminated-blood-scandal-werent-10854692"><em>ex-gratia</em> payments</a>” on condition that they dropped their claims. </p>
<p>Other countries took a very different approach: in France, for example, more than 30 people including blood centre officials, doctors and ministers were <a href="https://www.research.manchester.ac.uk/portal/en/publications/the-role-of-the-criminal-law-in-healthcare-in-france(2940b3d7-f3aa-4d80-8146-04e2d299fdda).html">prosecuted for criminal offences including negligence and deception</a> – and two senior officials were jailed. </p>
<p>So the announcement of an inquiry by British prime minister Theresa May, after years of pressure from MPs and campaign groups, including the mayor of Greater Manchester, Andy Burnham – who has even claimed there is evidence of a “<a href="https://www.theguardian.com/society/2017/apr/26/andy-burnham-demands-nhs-contaminated-blood-inquiry">criminal cover-up</a>” – has been seen as a last chance for those affected.</p>
<h2>The battle for a public inquiry</h2>
<p>The inquiry’s aim is to investigate the failings of authorities at the time. Criminal proceedings may follow if there is evidence of criminal conduct. It has been a long time coming. Lobbying by victims of the contamination for compensation <a href="https://www.escholar.manchester.ac.uk/api/datastream?publicationPid=uk-ac-man-scw:198260&datastreamId=FULL-TEXT.PDF">started in England in 1987</a>, with demands for a public inquiry the following year. Resistance in Westminster to launch a public inquiry was reflected in the following statement by Lord Warner, then minister of state for health, in 2006: “We do not consider that a public inquiry is justified as we do not believe that any new light will be shed on this issue as a result”. </p>
<p>Yet the <a href="http://www.archercbbp.com/report.html">Archer Inquiry</a>, an independent report funded by donations, and so not a formal public inquiry, published a report in 2009 that stated “there was something to hide” and that “secrecy fosters suspicion”. Following devolution the Scottish Executive held the <a href="http://www.penroseinquiry.org.uk">Penrose Inquiry</a> into the scandal which reported in 2015 and made a number of recommendations to ensure blood safety in Scotland, but was angrily dismissed by campaigners as “<a href="http://www.scotsman.com/news/blood-scandal-victims-condemn-penrose-inquiry-1-3728511">a waste of time and money</a>” for failing to apportion blame. Successive governments in Westminster have failed to act on what was a national scandal.</p>
<h2>What are the possible outcomes?</h2>
<p>It is hoped that those infected by tainted blood and their families will discover exactly who was responsible. But will criminal charges be brought? Several options are available to prosecutors. </p>
<p>Where those infected by contaminated blood have died, individuals identified as responsible may be charged with <a href="http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#gross">gross negligence manslaughter</a>. Where the collective fault of an organisation can be identified, a charge of <a href="http://www.cps.gov.uk/legal/a_to_c/corporate_manslaughter">corporate manslaughter</a> might be brought – but in cases where victims died before this crime was introduced via the <a href="http://www.legislation.gov.uk/ukpga/2007/19/contents">Corporate Manslaughter and Homicide Act 2007</a>, prosecution under the old common law offence of corporate manslaughter is unlikely to succeed. </p>
<p>For injuries short of death, individuals who recklessly supplied the contaminated blood could be prosecuted for <a href="http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/20">grievous bodily harm</a> under Section 20 of the Offences Against the Person Act 1861. Proving that individuals were grossly negligent or reckless – and that this negligence or recklessness caused the death of the victim – will be hard. Proving the Department of Health guilty of corporate manslaughter might arguably be easier, although prosecutors would also need to demonstrate how the department’s policies or practices <a href="https://www.escholar.manchester.ac.uk/api/datastream?publicationPid=uk-ac-man-scw:198260&datastreamId=FULL-TEXT.PDF">directly led to the contamination of blood products</a>, causing the victims’ injuries and deaths.</p>
<p>There have been instances where doctors have been charged with gross negligence manslaughter following <a href="http://www.uhs.nhs.uk/HealthProfessionals/Clinical-law-updates/Manslaughter-by-doctors.aspx">the death of patients through negligence</a>, and one instance of a <a href="https://www.theguardian.com/society/2016/jan/28/frances-cappuccini-caesarean-death-trial-collapses">prosecution of an NHS Trust for corporate manslaughter</a>, which was unsuccessful.</p>
<p>Due to the time that has passed and the complexity of the law, it is quite possible that the courts will be unable to hold anyone criminally accountable. But the decision to allow victims to begin proceedings against the government goes some way towards providing victims some level of justice. If a rigorous, victim-centred inquiry is also conducted, they and the public may at least find some closure in their search for the truth of the failings that scarred thousands of people’s lives.</p>
<p>Handled properly, this inquiry will at least send the message that such professional and institutional failings are unacceptable – and the government’s admission of liability would be a first step toward providing victims with the justice they have sought for so long.</p><img src="https://counter.theconversation.com/content/82475/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Melinee Kazarian does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A public inquiry into the infected blood scandal will identify where fault lies, but what reparations are the courts able to provide?Melinee Kazarian, Lecturer in Healthcare Law, University of SouthamptonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680572016-11-03T03:11:22Z2016-11-03T03:11:22ZCourts are regulating the class action funding industry where the government has failed to act<p>Third party litigation funding, once illegal, is now on the rise in Australia and the courts are stepping in to regulate it in the absence of government.</p>
<p>Thanks to a recent court decision, the court can now approve “common funds” for litigation , meaning funders can lend money to claimants for their legal costs, in return for a share of the spoils.</p>
<p>Previously if there was no agreement for third party litigation funders to get a cut of the damages after a case, these funders would partly miss out. Now even without an agreement, the court can decide that third party litigation funders can receive part of the damages.</p>
<p>This came about because of a <a href="http://www.austlii.edu.au/au/cases/cth/FCAFC/2016/148.html">decision in the Full Federal Court</a> against insurance business QBE where the court approved a “common fund” for third party litigation funders. </p>
<p>This may seem like it will help third party litigation funders to receive extra commissions but there is a potential sting in the tail for the industry. The court may now be the one to decide the amount of commissions they receive. </p>
<p>The court approved the proposal in the QBE case, though did not set a commission rate. The decision hints that courts may be willing to get into the business of reviewing contractual arrangements between funders and litigants, in the interests of fairness. </p>
<h2>The rise of the third party litigation industry</h2>
<p>Courts used to call third party litigation funding “champerty” and frowned upon it. However since the Australian High Court <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2006/41.html?stem=0&synonyms=0&query=fostif">decision in Fostif in 2006</a>, third party litigation funding has become not only legal, but a growth industry. </p>
<p>I have studied 19 major Australian investor class actions and more than 60% appear to have had a third-party funder. <a href="https://www.lawyersalliance.com.au/ourwork/access-to-justice">Many in the legal profession say</a> this funding is a positive development encouraging access to justice. </p>
<p><a href="https://sydney.edu.au/law/slr/slr28_1/Aitken.pdf">Others</a> believe it may be negative, leading to third-party funders stirring up litigation which would otherwise not occur. <a href="http://www.imf.com.au/docs/default-source/site-documents/imf-bentham-civil-justice-and-third-party-litigation-funding.pdf?sfvrsn=2">Litigation funders counter</a> by saying it would be bad business for them to prosecute cases that have no merit and are unlikely to succeed.</p>
<p>Protection of litigants, as consumers of litigation funding, is an important issue but it is not clear that court supervision through the provision of these “common funds” will solve all problems.</p>
<h2>Problems with third-party litigation</h2>
<p>One problem is whether litigation funders will have the cash reserves to pay adverse legal costs if the claims are unsuccessful. This could be helped by a system of licensing for this industry to ensure it has adequate capital to meet adverse legal costs, where an unsuccessful plaintiff is ordered to pay the defendant’s costs.</p>
<p>The Federal Court decision may also encourage “open class” rather than “closed class” actions. An open class covers all victims of illegal conduct, whereas a closed class usually only covers those who sign up with a funder or lawyer. </p>
<p>Open classes will tend to widen access to justice and remove a potential conflict of interest that lawyers may have between funded and unfunded claimants (because open classes with common funds mean no unfunded claimants). This also means that more people may, unless they specifically opt out, find themselves involved in a class action (for example, small investors in public companies which have made misleading statements or nondisclosures).</p>
<p>Open classes will not remove all lawyers’ conflicts of interests. Lawyers will still have incentives to want to please both litigant clients and their third party litigation funders, whose interests may differ. </p>
<p><a href="http://www.austlii.edu.au/au/journals/UNSWLawJl/2016/5.html">My research suggests</a> that three party agreements between litigant, lawyer and litigation funders have potential problems, as there are incentives for two of the parties to collude to the detriment of the third. The problem is that the interests of the funder and litigant may be different. </p>
<p>This might happen for example when a settlement offer is made and the funder wants to accept but the litigant doesn’t (or vice versa). The lawyer is supposed to follow the client litigant’s instructions but may prefer the client to do what the funder wants, as the funder is paying the fees and is a source of work to the lawyer. </p>
<p>A partial solution with merit is requiring funders to maintain a small compulsory excess of a few thousand dollars, as insurers do (this is so litigants aren’t completely indemnified). Litigants would then still have to pay some adverse costs which would better align their interests with funders (reducing potential conflicts of interest) and it would also discourage litigants from bringing frivolous claims.</p>
<p>ASIC already has acted to partly regulate these issues by <a href="http://download.asic.gov.au/media/1334402/cp185-published-17-August-2012.pdf">publishing a regulatory guide</a> but further laws may be needed. These could establish that the funder has overriding duties of good faith to the litigant, which cannot be contractually altered. </p>
<p>Australia is leading the way in third party litigation funding so that overseas experience might not help us to decide which course of action is best. Australian courts can look after some aspects of third party litigation funding but some legislative and prudential regulation is still needed.</p><img src="https://counter.theconversation.com/content/68057/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Duffy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Thanks to a recent Federal Court decision, the industry that helps to fund class actions will now be regulated in part by the courts. But is this the best way?Michael Duffy, Lecturer and Researcher, Monash Business School, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/555772016-03-16T03:55:55Z2016-03-16T03:55:55ZThe two-year wait for Hazelwood mine fire charges shows the system needs to change<p>Victoria’s Environmental Protection Authority has <a href="http://www.epa.vic.gov.au/about-us/news-centre/news-and-updates/news/2016/march/15/charges-laid-following-epa-investigation-into-hazelwood-mine-fire">brought charges against four companies</a> over the <a href="https://theconversation.com/victorias-coal-fire-poses-a-rare-challenge-for-firefighting-23698">Hazelwood coal mine fire</a>, which burned for 45 days in February and March 2014, blanketing the nearby town of Morwell in smoke.</p>
<p>The charges allege that the pollution from the fire broke environmental laws by making the air:</p>
<blockquote>
<ul>
<li>noxious or poisonous or offensive to the senses of human beings;</li>
<li>harmful or potentially harmful to the health, welfare, safety or property of human beings;</li>
<li>detrimental to any beneficial use made of the atmosphere.</li>
</ul>
</blockquote>
<p>The charges follow a two-year investigation featuring <a href="http://hazelwoodinquiry.vic.gov.au/">several inquiries</a> into the fire, including a <a href="http://www.parliament.vic.gov.au/file_uploads/10826_HAZ_Hazelwood_Mine_Fire_Inquiry_Report_2015_16_Volume_II_____Term_of_Reference_6_LoRes_58CA_4NfZvjW2.pdf">report</a> which concluded that the blaze probably contributed to deaths in the community. </p>
<p>The mine’s owner is already facing <a href="http://www.worksafenews.com.au/component/k2/item/473-hazelwood-power-corporation-charged.html">charges from Worksafe Victoria</a>, which it says it <a href="http://www.abc.net.au/news/2016-02-04/hazelwood-mine-operator-charged-over-devastating-2014-blaze/7138378">will defend</a>. It is majority-owned by the power multinational GDF Suez (known internationally as <a href="http://www.engie.com/en/journalists/press-releases/gdf-suez-becomes-engie/">Engie</a>). </p>
<p>Some, including Victoria’s environment minister Lisa Neville, have <a href="http://www.smh.com.au/environment/victorian-environment-minister-lisa-neville-hits-out-at-epa-over-hazelwood-charges-delay-20160204-gmli2v.html">raised questions</a> over why it has taken so long for the EPA to lay its own charges. This chimes with our ongoing research, which indicates that Australian citizens and campaign groups have less power to bring environmental prosecutions than in other comparable countries.</p>
<h2>Compare and contrast</h2>
<p>We compared the situation in Australia with an Italian case involving another Engie subsidiary, Tirreno Power. In 2014, while Hazelwood was burning, Tirreno’s coal-fired power plant in Vado Ligure, Italy, was <a href="http://reneweconomy.com.au/2014/hazelwood-owner-told-to-shut-italian-coal-plant-blamed-for-deaths-18375">seized and shut down</a> in response to <a href="http://www.penalecontemporaneo.it/upload/1399222800Trib.%20Savona%20-%20decreto%20sequestro%20Tirreno%20Power.pdf">judicial findings</a> that the company had violated its environmental conditions, causing hundreds of deaths and thousands of illnesses as a result of the facility’s emissions.</p>
<p>Unlike at Hazelwood, there was no single disaster such as a fire, but rather a realisation of the damage being done by chronic pollution.</p>
<p>In Italy, not only is environmental protection improving under the guidance of the European Union, but citizens also have their own systems to report potential violations, balancing to some degree the rights of corporations against those of other parties. In the Tirreno case, the campaign group <a href="http://www.internazionale.it/reportage/2015/11/07/vado-ligure-carbone-inquinamento">Rete Savonese Fermiamo il Carbone</a> (Savonese Stop the Coal Network) was instrumental in raising the issue and ultimately securing a victory for local citizens.</p>
<p>Victorian state laws have some similar provisions, particularly under the <a href="http://www.legislation.vic.gov.au/domino/web_notes/ldms/pubstatbook.nsf/f932b66241ecf1b7ca256e92000e23be/750e0d9e0b2b387fca256f71001fa7be/$file/04-107a.pdf">Occupational Health and Safety Act</a>. If a citizen feels that an incident has breached health and safety laws and authorities do not prosecute within six months, they can make a written request to <a href="http://www.worksafe.vic.gov.au/">Worksafe Victoria</a> to prosecute. </p>
<p>This is probably how Worksafe’s recent action against GDF Suez came about about. Acting on behalf of campaign group <a href="http://www.votv.org.au/">Voices of the Valley</a>, Environmental Justice Australia <a href="https://envirojustice.org.au/blog/worksafe-to-prosecute-hazelwood-power-corp-over-mine-fire">asked Worksafe to pursue legal action</a>.</p>
<p>But similar provisions do not exist under Victoria’s <a href="http://www.epa.vic.gov.au/about-us/legislation/acts-administered-by-epa">environmental laws</a>, which date back to 1970. Only the EPA can bring charges, but if it chooses not to, there is no way for citizens to ask the authority to reconsider.</p>
<h2>Citizens’ rights</h2>
<p>In some ways this is rather startling. It begs the question of who will uphold environmental standards if the regulator chooses to look the other way. It is little wonder that citizens are resorting to <a href="https://newmatilda.com/2016/02/09/climate-angels-santos-csg/">protest</a> and <a href="http://www.smh.com.au/comment/coal-marketing-should-come-with-a-health-warning-20160309-gnegkv.html">media pressure</a> to be heard.</p>
<p>Meanwhile, there are worrying signs that corporations are being given special privilege on account of their role as drivers of economic development. This includes mining companies who, for example, have until recently been relatively free simply to <a href="http://www.abc.net.au/news/2015-09-19/taxpayers-may-foot-bill-for-mine-rehabilitation/6787954">abandon mines</a> once extraction has finished. Even now they only have to pay nominal rehabilitation bonds, with the result that Hazelwood is one of roughly <a href="https://theconversation.com/what-should-we-do-with-australias-50-000-abandoned-mines-18197">50,000 abandoned mine sites</a> across the country, many of which pose serious risks. The current Hazelwood Mine Fire Inquiry report on mine rehabilitation at the site was due March 15, but <a href="http://hazelwoodinquiry.vic.gov.au/">this has been delayed for an unspecified period or reason</a>.</p>
<p>Society’s capacity to call on governments to prosecute is clearly mediated by how the law defines <a href="http://phg.sagepub.com/content/39/1/96.short">who can take legal action</a>. The federal government’s <a href="https://theconversation.com/brandis-changes-to-environmental-laws-will-defang-the-watchdogs-46267">ongoing bid to strip green groups of the right to challenge environmental approvals</a> is case in point.</p>
<p>The Hazelwood fire has exposed many environmental issues. But the slow pace of the investigation also highlights a real weakness in our legal system. Making this system more just and democratic is vital – not just to increase our capacity to respond to catastrophic events like the Hazelwood fire, but also to begin tipping the balance of power back towards society and away from corporations who must always be fully accountable.</p>
<p><em>This article was co-authored with Melanie Birkbeck, who has researched these issues as an intern at the <a href="http://sustainable.unimelb.edu.au/">Melbourne Sustainable Society Institute</a> and as a postgraduate student at the University of Melbourne’s <a href="http://environment.unimelb.edu.au/">Office for Environmental Programs</a>. It is based on research supported by the Melbourne Sustainable Society Institute and RMIT Centre for Urban Research.</em></p><img src="https://counter.theconversation.com/content/55577/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Rickards does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two years after Morwell was blanketed in smoke from the Hazelwood fire, environmental charges have been laid against the mine’s operators. But the process should be more open and democratic - and quicker.Lauren Rickards, Senior Lecturer, Sustainability and Urban Planning, School of Global Urban and Social Studies; Co-leader, Climate Change and Resilience research program, Centre for Urban Studies, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/501472015-11-10T03:39:59Z2015-11-10T03:39:59ZExplainer: the role of court interdicts in managing protests<figure><img src="https://images.theconversation.com/files/101038/original/image-20151106-16231-1kjqtyv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some South African universities said they felt sufficiently threatened to obtain interdicts against protesting students.</span> <span class="attribution"><span class="source">Kim Ludbrook/EPA</span></span></figcaption></figure><p>A few days into the <a href="https://theconversation.com/africa/topics/university-fees">protests</a> that swept South Africa’s campuses during October, university managers turned to the courts for help. A number of institutions <a href="https://www.enca.com/south-africa/universities-hit-back-students-interdicts-feesmustfall">obtained interdicts</a> in an attempt to control and restrain the protests.</p>
<p>The interdicts were interpreted by some as an attempt by university management to stifle legitimate protest. Institutions were also mocked for interdicting the Twitter <a href="http://www.2oceansvibe.com/2015/10/21/hilarious-it-is-now-illegal-to-use-the-feesmustfall-hashtag-whoops">hashtags</a> under which the student movements had organised, such as #FeesMustFall and #TUKSUPrising. Even the courts were <a href="http://www.hetn.org.za/documents/Press_Release_231_Complaint_Judge_Davis.pdf">criticised</a> for appearing to “side” with the universities.</p>
<p>So what is an interdict, and why did universities turn to this extraordinary legal procedure? And, crucially, is this a worthwhile measure given how frequently interdicts are ignored?</p>
<h2>The interdict process</h2>
<p>Applicants most often get an interdict by going to court on an urgent basis. It is an order designed to restrain the defendants, in this case students, from continuing with wrongful activities – that is, illegal and delictual wrongs, which result in loss caused by negligence.</p>
<p>By its very nature, an urgent interdict subverts <a href="http://uir.unisa.ac.za/bitstream/handle/10500/1840/10chapter10.pdf">the principle</a> that both parties should have a full opportunity to present their case before an order is issued. There’s an obvious tension here with the purpose of an interdict, which tries to prevent applicants from suffering irreparable damage caused by defendants’ wrongful activities.</p>
<p>The interdict gives applicants a tactical advantage. A full trial after an interdict has been granted is very rare and the applicant’s assertions of “interference with business” or “extreme violence” become <em>prima facie</em> evidence which the defendants must disprove.</p>
<h2>A tough order to enforce</h2>
<p>Essentially, an interdict is about respect for an order made by the constitutionally designated arbiters of conduct – the courts. It is irreparably tied to the authority of the courts and, if it is ignored, an individual or organisation can be held in contempt of court.</p>
<p>But there are three major difficulties in establishing contempt.</p>
<p>The first is the test that has been set by the courts. Contempt is the wilful and malicious refusal or failure to comply with an order of court. As the courts have put it: a deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe themselves to be entitled to act in the way that’s considered contemptuous. </p>
<p>The second is that courts insist the conduct which is being interdicted must be narrowly defined. This is so that defendants don’t fall into contempt for an overly broad prohibition. Those drafting the interdict must be specific about what they want the court to order.</p>
<p>Finally, a practical consideration. Once an interdict has been served, there must be proof beyond reasonable doubt that <em>an organisation</em> committed a breach of it. That is distinct from a breach by the <em>individual members</em> of an organisation. The liability for contempt of a court order is therefore strictly determined by reference to what the court ordered specific parties to do and the presentation of evidence that they did not do so.</p>
<h2>Interdicts in the university context</h2>
<p>Online photographs and videos leave little doubt that in many instances student behaviour went far beyond peaceful protest. <a href="http://www.iol.co.za/news/crime-courts/uwc-students-go-on-rampage-1.1938641">Criminal activity</a> – arson, assault, intimidation, destruction of property – was routine. </p>
<p>Some campus security guards stayed away from work to show support for the protesters, who were also calling for an end to outsourced guarding, cleaning and similar services. Their absence left staff, students and buildings without protection. What is the responsibility of university managers in this context?</p>
<p>There can be few who disagree that university managers have a legal and fiduciary duty to protect the people and property at an institution. Universities’ own statutes routinely require the executive and university councils to do so. When unable to offer this protection, universities have a duty to seek help where they can: from the courts and the police, both constitutionally mandated to offer this protection. </p>
<p>The courts can offer their authority to restrain crime, the police to prevent and prosecute crime. It would be surprising to find any critic of interdicts, if they were in the position of a vice-chancellor, doing nothing in the face of serious threats to life and property.</p>
<h2>Facing irreparable harm</h2>
<p>That said, one can ask whether using an interdict is desirable if it is routinely ignored, hard to draft and difficult to enforce. As I’ve said, interdicts against hashtags were a feature of several university court actions. This shows how complex it has become to restrain the way students communicate and organise. </p>
<p>By interdicting a hashtag the intention goes beyond restraining behaviour to restraining freedom of speech. Professor Jane Duncan has <a href="http://www.htxt.co.za/2015/10/20/high-court-issues-interdiction-against-a-hashtag-in-feesmustfall-doc/">pointed out</a> that this is overly broad. She said that:</p>
<blockquote>
<p>A student calling for an entirely peaceful occupation, for example, would be prevented from doing so and using the hashtag to make their tweet searchable.</p>
</blockquote>
<p>Still, the phrase “irreparable damage” – used so often to justify an interdict – is entirely appropriate where exams may be cancelled or a campus closed. There reaches a point where an interdict, if nothing else, signifies that a university, by resorting to the courts, is committing itself to legal process and the rule of law to avoid that irreparable harm.</p><img src="https://counter.theconversation.com/content/50147/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Rycroft does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Universities were widely criticised for turning to the courts during a series of student protests in South Africa. So why did they do it, and did the interdict process work?Alan Rycroft, Professor of Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/485242015-10-08T13:42:27Z2015-10-08T13:42:27ZChocolate war in the court room as KitKat fingers and Lindt bears take the stand<figure><img src="https://images.theconversation.com/files/97755/original/image-20151008-9682-kwzkl3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Battleground. Chocolate firms try to keep you coming back for more.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/brizzlebornandbred/5110941023/in/photolist-8MCUGP-mzTmkJ-muMuZF-nu9123-dLfeVH-TFbqx-9tgBve-3YayV-muN4ZX-2RDzB6-oR79JX-5Uy5V-p7pMWF-ge4zhR-oEbbrR-6YdVnJ-bunZdT-qJTaL-9cxMUu-96sqPo-gd5kFu-7aZjud-e2zn81-8MzhyL-8MzhGf-8MzhBU-aM7QGz-5ZrgaS-8FUh5D-8MzgC3-Gb222-toArip-7dAwfj-dq9r2-b42Jv-8HpKYo-6aS4dU-5QYvQr-fcrMeQ-75uBLs-sHgY21-xdQkyy-dsFK4V-cfMKwS-8NTyXb-5R6soV-eyPT6L-96ppwH-7dNeu8-8rX44q">Paul Townsend</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Rivals operating in the multi-billion pound world of chocolate branding occasionally launch attacks on one another as they seek to secure your snacking loyalty. They want to defend their existing empires, as well as pursue new territories and markets – and two such trade mark battles have come to the fore in the news in recent weeks which reveal a lot about the tension between the legal protections provided by trade mark law and the competitive nature of the marketplace for chocolate. </p>
<p>First, in mid-September the Court of Justice of the EU ruled on Nestlé’s bid to receive UK trade mark protection for the (allegedly) distinct shape of the four-finger version of the KitKat, long touted as the UK’s favourite chocolate bar. <a href="http://www.dailymail.co.uk/news/article-3237772/Cadbury-kills-bid-Nestle-trademark-distinctive-shape-KitKat.html">Nestlé’s main aim</a> is apparently to prevent a rival four finger chocolate bar from being marketed by Cadbury. Then, in late September the German Federal court ruled on the dispute between jelly sweet giant Haribo and Lindt over Lindt’s chocolate bears and Haribo’s “Gold Bear” trade mark. </p>
<h2>KitKat Attack</h2>
<p>Dealing first with the KitKat case, Nestlé’s claim over the four finger shape was framed around two fundamental aspects of trade mark law. First, <a href="http://www.legislation.gov.uk/ukpga/1994/26/contents">it is possible under trade mark law</a> to register a three dimensional shape – in this case the four fingers – as a trade mark, as long as that shape has sufficient “distinctiveness”. It is also possible for a shape to “acquire” distinctiveness through use in the marketplace and consumer recognition. <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2014/16.html">Cadbury argued</a> that the shape had not acquired sufficient distinctiveness in the minds of consumers. </p>
<p>So far, so simple. But the other key question centred on whether a shape with so-called functional elements in its design could also be protected as a trade mark. In the case of the KitKat, that basically refers to the ability to break off each individual finger to dip in your tea (or however you choose to eat it; I’m aware it is a personal thing). Now, generally, the law does not protect purely “functional” shapes – the reason being that competitors ought to be allowed to produce competing goods.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/97757/original/image-20151008-9670-8p6hzs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A ‘functional’ element at work.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/threefingers/2246571713/in/photolist-4qwgv4-avr3N4-7UEyip-7q2JLu-dWxve6-jgW6HC-sgtPXf-9svtNJ-d7Fbzh-d7FbWf-4NdFUx-b4aLqz-7v4nJq-qF3CGa-5ZnEK4-88QgKH-7ndYC4-bJy2M2-8Dd2gj-89VEKL-gd9gWW-6i27iZ-5ZnD9x-5ZnDXH-KGcCq-64SAPL-6bsjLu-4KdUc5-4vmiPz-6MZRKm-9t9RYQ-7twsMY-6rvHsW-9t6RBF-bvbD7w-5paSKX-ppH6Af-3d8TCk-9t6SeZ-dWxv6v-6hwE2t-5HDSby-5HDRFo-5HDRRw-98H7J9-97fKF4-dxaeaM-Yv2X1-aHnQWT-9H4YMj">Sean Murray</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>On the matter of distinctiveness, the court ruled that to obtain trade mark protection, Nestlé had to demonstrate that consumers identify the four finger shape itself - stripped of any packaging or branding - with Nestlé and KitKat. This ruling was <a href="http://www.bbc.co.uk/news/business-34266169">widely reported in the media</a> as a victory for Cadbury, but the legal reality is more complex. </p>
<p>Nestlé has always claimed that even without its well known red and white packaging or the use of the existing trade mark name, the shape of the bar should of itself be regarded as sufficiently distinct, and it <a href="https://www.ipo.gov.uk/types/tm/t-os/t-find/t-challenge-decision-results/o25713.pdf">claims some consumer survey evidence</a> to support this. </p>
<p>For Cadbury there is a further sting in the tail. On the issue of functionality the court’s ruling seems to strongly favour Nestlé because the key elements of the four finger shape do not seem to fall within a single category of objection, which means that Nestlé’s four finger shape is likely to survive this test. The case now <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2014/16.html">returns to the High Court</a> for a determination on the facts. </p>
<h2>The bear facts</h2>
<p>The case between Haribo and Lindt has a similar ring to it, and it is again all about stopping rivals encroaching on your space in the confectionery aisle of the supermarket, however limited that danger might appear to us shoppers. </p>
<p>Their dispute concerned the “Gold Bear” trade mark under which Haribo has long marketed a well known range of gummy bears; the words themselves are protected under trade mark law as a word mark. The problems started when Swiss chocolate maker Lindt began selling a gold foil-wrapped chocolate teddy bear. Haribo was quick to accuse its rival of infringing the Gold Bear trademark. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/97759/original/image-20151008-9655-l6uqwa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Flash point. When bears attack.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/foodishfetish/8140351801/in/photolist-dpkqZ8">Jocelyn & Cathy</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>Haribo claimed that consumers would confuse the two products and go on to incorrectly associate the Lindt gold bear with Haribo. Lindt, meanwhile, argued that its foil-wrapped chocolate bears were merely a variation on its famous chocolate Easter bunny rabbit design. Lindt pointed out that both the Lindt bear and the Lindt bunny rabbit are typically packaged in gold foil with a red ribbon, and argued there was no intention to associate with Haribo’s Gold Bear mark.</p>
<p>Haribo <a href="http://www.theguardian.com/business/2012/dec/18/gummy-bear-wins-court-battles">won the first round of this battle</a> when, in December 2012, a German regional court banned future sales of Lindt’s bears. However, a later German appeal court in Cologne rejected that ruling and said that Haribo’s feared consumer confusion between the two products would not in fact occur. This appeal ruling has now been upheld by the German Federal court in a decision that leaves the Lindt bears on the shelf and which brings this particular chocolate war to a fitting close.</p>
<p>If nothing else, these cases are a useful reminder of how valuable you - the consumer - are to makers of sugary snacks, and how fearful companies are that your gaze might be diverted from their offering. Disputes that might on the surface seem petty have pitted together three of Europe’s largest chocolate manufacturers (Cadbury, Nestlé and Lindt) as well as one of its premier sweet manufacturers (Haribo). Behind the scenes of your mid-morning treat is a fierce battle to protect trade marks, market share and, ultimately, profit margins.</p><img src="https://counter.theconversation.com/content/48524/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke McDonagh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Behind the scenes of your mid-morning treat is a fierce legal battle to protect market share and profits.Luke McDonagh, Lecturer in Law, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/420422015-05-19T05:27:46Z2015-05-19T05:27:46ZScott McIntyre vs SBS will test employees’ right to be opinionated<p>When Scott McIntyre <a href="https://theconversation.com/anzacs-behaving-badly-scott-mcintyre-and-contested-history-40955">tweeted his own opinions</a> about the horrors of war on Anzac Day, he probably didn’t expect to be sacked from his job at SBS. </p>
<p>After all, we have plenty of examples in this country of journalists and commentators – Alan Jones, Andrew Bolt and Kyle Sandilands, to name just three – who make a living from expressing controversial views that often offend at least some section of our community.</p>
<p>McIntyre is now <a href="http://www.abc.net.au/news/2015-05-18/scott-mcintyre-sues-sbs-over-sacking-for-anzac-day-tweets/6478816">appealing his dismissal</a>, on the grounds that his employer has breached the “general protections” for workplace rights in the Fair Work Act 2009 (Cth).</p>
<p>The particular provision McIntyre is relying upon is <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s351.html">section 351</a>, which provides that:</p>
<blockquote>
<p>An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.</p>
</blockquote>
<p>Adverse action includes dismissal, as well as other forms of workplace discipline (such as demotion), and the Fair Work Act places the onus on the employer to prove that they were not motivated by an impermissible reason (covered under <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s361.html">section 361</a>).</p>
<p>So it will be for SBS to demonstrate that it sacked McIntyre for a legitimate reason, not including his political opinions.</p>
<h2>Proving discrimination isn’t easy</h2>
<p>On its face, the Fair Work Act protections against discriminatory treatment at work seem clear – but it has not always been easy to establish a successful claim.</p>
<p>Two notorious High Court cases stand in McIntyre’s path. One is the 2012 <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/32.html">Board of Bendigo Regional Institute of Technical and Further Education v Barclay</a> case. The other is the more recent 2014 decision on <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-41-2014-10-16.rtf">CFMEU v BHP Australia</a>.</p>
<p>In both these cases, employees were seeking to use related “adverse action” provisions protecting employees’ rights to exercise their internationally recognised right to freedom of association by engaging in union activities (under <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s347.html">section 347</a> of the Fair Work Act).</p>
<p>In both cases, the employees were punished for some activity related to their union membership. </p>
<p>CFMEU v BHP was the <a href="http://www.corrs.com.au/publications/corrs-in-brief/high-court-majority-applies-barclay-decision-to-find-scab-sign-dismissal-was-lawful/">infamous “scab” case</a>, where employees were dismissed for holding up placards naming others as “scabs” during industrial action.</p>
<p>In both the Barclay and BHP cases, the employers were successful in demonstrating that they had other, legitimate reasons for taking action against the employees.</p>
<p>In the BHP case, the court accepted the employer’s assertion that the disciplinary action was taken for the sole reason of enforcing a workplace civility policy.</p>
<h2>McIntyre’s challenge</h2>
<p>So for McIntyre to succeed in his section 351 case against SBS, his counsel will have to demolish any assertion by SBS that it was motivated by a legitimate reason (such as enforcing a workplace civility, or a “don’t offend the viewers” policy).</p>
<p>This case will be an interesting test of whether the general protections in the Fair Work Act do offer any safe haven for employees to maintain a personal and political identity, unrestrained by any obligation to defer to their employer’s interests.</p>
<p>Once upon a time, long, long ago, and before social media all but obliterated any boundary between public and private lives, a judge in Australia said (in Australian Tramways’ Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35) that a person may wear, worship or believe whatever one chooses, in matters not affecting work.</p>
<p>Finding the balance between the employee’s rights and the employer’s interests is an old problem. It will be interesting to see how McIntyre’s case is resolved.</p><img src="https://counter.theconversation.com/content/42042/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joellen Riley Munton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Scott McIntyre’s legal challenge against being sacked by SBS will be an interesting test of whether the Fair Work Act offers any safe haven for employees to maintain a personal and political identity.Joellen Riley Munton, Dean and Professor of Labour Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/322662014-12-18T19:48:00Z2014-12-18T19:48:00ZGreat Southern class action calls for debate on lawyers fees<p>The failed <a href="https://au.news.yahoo.com/thewest/a/25754633/23m-great-southern-settlement/">Great Southern class action</a>, which saw lawyers receive substantially more compensation than victims, could be seen as making the case for contingency fees. The Productivity Commission recently recommended the removal of the ban on contingency fees that exists in all Australian states.
However, contingency fees also have dangers for consumers.</p>
<p>Contingency fees can be advantageous to clients because the lawyer only gets paid if the client wins and only in proportion to the victory. The lawyer bears some of the risk of the proceedings, by acting as both lawyer and banker to the client. </p>
<p>In the Great Southern class action the clients would have been much better off with a contingency fee arrangement. The lawyers charged A$20 million using a fixed fee and achieved a settlement of $3.55 million, or about $17 for every $10,000 invested. If a contingency fee of 25% applied, then the amount being paid to the lawyers would have been A$887,500. </p>
<p>Contingency fees are an alternative to time-based billing, fixed fees and even the conditional fee. A conditional fee, also called a “no win – no fee” approach, is where the lawyers also only get paid if there is a recovery. However, the payment to the lawyer is usually based on time worked. The lawyers may also charge an uplift of no more that 25% of their time-based fee. </p>
<p>The Great Southern class action shows the main issue is not embracing contingency fees, but instead the more difficult issue of how to ensure fees are charged in an appropriate manner that is fair to both lawyer and client. The Productivity Commission acknowledges this issue by stating in its report:</p>
<blockquote>
<p>The unfortunate reality for consumers of legal services is that lawyers can charge excessive fees, adopt a position that is incongruous to the needs of the client and fail to adequately inform their client under any billing arrangement.</p>
</blockquote>
<p>Great Southern illustrates that when a case is risky lawyers may chose a billing method that makes sure they get paid, rather than a contingency fee which exposes the lawyer to risk. The opposite position may also apply: contingency fees being adopted for cases with low risk or for cases that are currently undertaken using conditional billing. </p>
<p>Contingency fees may make litigation more expensive for plaintiffs. For example the Commission presents data on the fees charged in Victorian Supreme Court personal injury cases in 2009 and 2010. </p>
<p>For cases with recoveries over $1 million dollars legal fees equate to about 5% of the recovery. Compare that with a contingency fee of 25%. If contingency fees are greater than what is charged through time-based billing then transaction costs for the compensation of injuries will increase. If that happens then the plaintiff has less funds. Does that mean that compensation payments will increase, or does the injured individual have to make do with less, or is society to make up the shortfall in some way?</p>
<h2>The UK experience</h2>
<p>Regulators in the UK responded to this concern about the adoption of contingency fees in three ways: </p>
<ul>
<li>Increasing the compensation to be paid in personal injury cases by 10% </li>
<li>Requiring that the amount payable is reduced by the amount of legal costs recovered from the opponent in the litigation. In England, as in Australia, the loser usually pays the winner’s legal fees</li>
<li>Placing a cap on the percentage that could be charged as a contingency fee.</li>
</ul>
<p>The fact that regulation was needed in the UK to ensure clients are adequately compensated suggests this is a real area of concern. If lawyers use contingency fees to feather their own nests then there are some very real and serious implications for the rest of society. The problem of cost in the civil justice system is made worse. The Productivity Commission has recommended the use of caps, but has not addressed the other measures. </p>
<h2>Independent review of costs</h2>
<p>Another key protection for consumers is that the current regulation of legal costs includes the ability of a client to seek the independent review of a bill of costs. The review of costs determines if the costs are fair and reasonable. Contingency fees would presumably operate within this regime but to do so additional information is needed. Traditionally records of work done and time expended are considered. But a contingency fee is not based on work or time. </p>
<p>The fee review system would need some way to determine what a reasonable percentage for a particular case is. </p>
<p>Experience with uplift fees in Australia and contingency fees in the US is that lawyers usually charge the maximum allowed – if there is a cap they charge the cap amount. One response, recommended by the Victorian Law Reform Commission in 2008, was to make lawyers continue to record time and tasks so that a time or task based fee could be compared with the percentage actually charged. However, this does not take into account the risk of the litigation, in particular, the risk of the lawyer not being paid. The Productivity Commission devotes a chapter to protecting consumers of legal services but does not consider how contingency fees would operate in this system.</p>
<p>The Great Southern class action demonstrates lawyers can choose fee arrangements that are to their advantage. Rather than being an endorsement for contingency fees it suggests we must consider how contingency fees may be misused and the mechanisms for guarding against such misuse.</p><img src="https://counter.theconversation.com/content/32266/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Legg is affiliated with Jones Day, Law Council of Australia Class Actions Committee and the National Pro Bono Resource Centre.</span></em></p>The failed Great Southern class action, which saw lawyers receive substantially more compensation than victims, could be seen as making the case for contingency fees. The Productivity Commission recently…Michael Legg, Associate Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/350722014-12-05T06:15:29Z2014-12-05T06:15:29ZRussell Brand may be a soundbite on legs – but he’s not about to go away<figure><img src="https://images.theconversation.com/files/66354/original/image-20141204-7250-i287ds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Doesn't look so angry.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/evarinaldiphotography/5622506876/in/photolist-9yQPpJ-9yV352-4oqoYc-9yV34M-9yV34D-jdJWQ4-4TG35g-2BdUY9-4gtTSJ-4ouu6f-4ousaw-4ourwh-4ouur7-4oqqy6-6iqoFj-4oqoxT-4ourES-4oqpsH-4oqraD-4oqrq8-4ousMf-4ouvLy-4oqpVz-4ouqV7-4oqnst-4out7j-4oqqNZ-4outBG-4ourdW-4ouvoC-4ourPy-4oqo5X-4oqsE8-4oqqF8-4outLo-4our5N-4oqphK-4ouugq-4oqqZT-4ousCo-4ouvDC-jbrzE-2BdYmb-4TG3pF-hXZ65-6imgpn-4FQSZ9-6bXLxC-8Kjxzx-7WRuHE">Eva Rinaldi</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Well, we’ve been here before. On Wednesday, the comedian, author and activist Russell Brand <a href="http://www.theguardian.com/media/2014/dec/03/russell-brand-threat-sue-sun-housing-hypocrite-allegation">threatened to sue The Sun</a> after the newspaper ran a front-page feature labelling Brand a hypocrite for “ranting against high rents and tax avoidance” while paying “£76k a year to tax-dodge landlords”. </p>
<p>Its editorial then witheringly referred to Brand’s current status: he is, the Sun contended: “swept up in a vortex of conspiracy paranoia and clichéd leftie propaganda which he’s read somewhere and only half understood … He is a vacuous soundbite on legs.”</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=764&fit=crop&dpr=1 600w, https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=764&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=764&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=960&fit=crop&dpr=1 754w, https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=960&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/66350/original/image-20141204-7250-1sbs1uv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=960&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Branding Russell Brand.</span>
<span class="attribution"><span class="source">The Sun</span></span>
</figcaption>
</figure>
<p>If Brand decides to sue The Sun (and it is questionable on what grounds he has a case – though legal expert David Banks told the Huffington Post that he could potentially have a claim as accusations of hypocrisy can be libellous in some circumstances) it will be the second time in recent history that he has had recourse to the law against Britain’s most famous tabloid. </p>
<p>In May this year he accepted an undisclosed sum from the Sun on Sunday which admitted in the High Court that its story claiming he had been cheating on his girlfriend, Jemima Khan, was totally untrue, defamatory and shouldn’t have been published. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"456067241428414464"}"></div></p>
<p>In victory, Brand tweeted: “I got some money suing The Sun who lied about me. I am making a donation to the #JFT96 campaign. A tiny piece of justice.”</p>
<h2>‘Hippo-sized lies’</h2>
<p>The “war” between Brand and The Sun has being going on for some time. When The Sun printed the original claims about Brand’s infidelities in November 2013, Brand responded by penning, in typically decorative prose, a wonderful take-down of the paper’s activities. He referred to the “worst lies” – of Hillsborough, Milly Dowler and swan-eating asylum seekers. </p>
<p>In the Guardian <a href="http://www.theguardian.com/media/2013/nov/29/russell-brand-rages-sun-rupert-murdoch">he wrote</a>: “We will never know the true extent of their dishonesty. We are dealing with experts in propaganda who will stop at nothing to see their version of events prevail, and on the rare occasions when the truth emerges, like a hernia popping through gorged corpse, they apologise discreetly for their ignoble flatulence in a mouse-sized font for hippo-sized lies.”</p>
<p>The Guardian piece so enraged The Sun that it took down its paywall so that non-subscribers could be party to “20 Reasons Why Russell Brand is the Biggest Hypocrite in Britain”. Among other things, the article points out the fact that the “Booky Wookies” of the three-times winner of the “shagger of the year” awards are published by News Corp companies. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=802&fit=crop&dpr=1 600w, https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=802&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=802&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1008&fit=crop&dpr=1 754w, https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1008&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/66353/original/image-20141204-7259-1ck3o19.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1008&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fun in The Sun?</span>
<span class="attribution"><span class="source">The Sun</span></span>
</figcaption>
</figure>
<p>Perhaps what irked The Sun the most was that Brand has frequently written for the paper and has edited its notorious “Bizarre” column. One source told the <a href="http://order-order.com/2013/11/29/how-much-does-russell-brand-hate-the-sun/">Guido Fawkes</a> political blog: “He’s written countless pieces for us, I think the last was <a href="http://www.thesun.co.uk/sol/homepage/features/4942468/Blame-this-on-madnessnot-on-Muslims.html">in May this year</a>, so clearly he didn’t have an issue over Hillsborough then!”</p>
<h2>Fox in the stocks</h2>
<p>More recently Brand has aimed his fire at Fox News. His YouTube web series (The Trews – the truth about the news – now running to more than 200 episodes) has asked: “Is Fox News more <a href="https://www.youtube.com/watch?v=Q2FSMvrlUlY">dangerous than ISIS</a>?”, as well as: “Does Fox News <a href="https://www.youtube.com/watch?v=f1rcR_MJZDQ">want us to be Nazis?</a>” and “Why Does Fox news <a href="https://www.youtube.com/watch?v=6Ed5NOQICAY">love guns so much?</a>”</p>
<p>Bill O’Reilly, Fox News’s most visible and voluble newscaster, has been repeatedly singled out for criticism. Attacked for his supposed stupidity and <a href="http://www.huffingtonpost.com/2014/07/02/russell-brand-bill-oreilly-fox-news-mexican-immigration_n_5548020.html">bigotry</a> Brand <a href="http://www.independent.co.uk/news/people/russell-brand-attacks-bill-oreillys-isis-report-were-not-idiots-we-dont-need-to-have-a-conversation-is-beheading-bad-9680883.html">has stated </a>: “Bill O'Reilly’s message is the same as Rupert Murdoch’s, the same as Fox News’s and the establishment’s, ‘Things are ok the way we are, we will stay in charge’.”</p>
<p>Brand is certainly not afraid to take on Murdoch personally, either. Having previously referred to Murdoch’s “glabrous claw” and The Sun as a tiny part of the “demon’s dermatology” the <a href="https://www.youtube.com/watch?v=9H46hLibhHA&list=UUswH8ovgUp5Bdg-0_JTYFNw">very latest Trews</a> this week draws attention to Murdoch and tax.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/n8sgxsS4T0c?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Dem’s fighting words.</span></figcaption>
</figure>
<p>But Brand rails against the whole media system, not just the Murdoch empire. A media system which, in his eyes, ensures the continued existence of the status quo and the propagation of the views of the narrow elite. This is hardly original criticism, of course, but the fact that Brand has chosen to air his beliefs through his books, journalism and broadcasts is something that has clearly upset not just the right wing but also some on the traditional left of the media who you might think would welcome the intervention of someone so down with the (supposedly disaffected) “kids” and in tune with their own views.</p>
<p>The often antagonistic but always worthwhile <a href="http://www.medialens.org/index.php/about-us/faq.html#whatis">Media Lens</a>, whose <em>raison d'être</em> is to challenge the corporate media system with a view to instigating a more honest and compassionate world, helpfully catalogued and analysed journalistic responses to the publication of Brand’s call to arms, <a href="http://russellbrand.com/revolution/youtube/">Revolution</a>. </p>
<h2>Bête noire – and loving it</h2>
<p>What is most shocking in the examples provided is not so much the volume of criticism that routinely comes Brand’s way but rather the superior tones with which that criticism is expressed. Media Lens highlights the comments of the Observer’s <a href="http://www.theguardian.com/books/2014/oct/27/revolution-review-russell-brand-beverly-hills-buddhist">Nick Cohen</a>: “His writing is atrocious: long-winded, confused and smug; filled with references to books Brand has half read and thinkers he has half understood.” </p>
<p>The New Statesman’s <a href="http://www.newstatesman.com/politics/2014/11/stuff-your-revolution-if-it-doesn-t-include-treating-women-people">Sarah Ditum</a> condemned the man, the message and the audience: “Russell Brand, clown that he is, is taken seriously by an awful lot of young men who see any criticism of the cartoon messiah’s misogyny as a derail from ‘the real issues’ (whatever they are).”</p>
<p>For all the criticism of Brand’s style and his failure to articulate the finer points of how his revolution will work, he is at least opening up debate and challenging the mainstream views. For me, he is quite simply a force for good who uses activism to highlight the causes of the under-represented and disenfranchised. Look at the basis for the current furore – Brand was out on the streets marching in support of Hoxton’s New Era Estate residents and affordable properties.</p>
<p>What is unique about him – and he will be the first of many, I’ll wager – is that he doesn’t need the conventional media to support him. He can take on Murdoch and the Daily Mail because his voice is not limited to their platforms. He can respond to the “hypocrite” accusations within hours online and hundreds and thousands <a href="https://www.youtube.com/watch?v=9H46hLibhHA&list=UUswH8ovgUp5Bdg-0_JTYFNw">will watch it</a>. He tweets to nearly <a href="https://twitter.com/rustyrockets">9m followers</a>, broadcasts via YouTube and writes <a href="http://www.dailymail.co.uk/news/article-2825252/Crack-open-champagne-Russell-Brand-proves-s-big-money-left-wing-ideology-Revolution-book-rakes-230-000-just-11-days.html">best-selling</a> books. He is not going to go away.</p><img src="https://counter.theconversation.com/content/35072/count.gif" alt="The Conversation" width="1" height="1" />
Well, we’ve been here before. On Wednesday, the comedian, author and activist Russell Brand threatened to sue The Sun after the newspaper ran a front-page feature labelling Brand a hypocrite for “ranting…John Jewell, Director of Undergraduate Studies, School of Journalism, Media and Cultural Studies, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/339642014-11-07T16:20:58Z2014-11-07T16:20:58ZEurope faces weapons of legal destruction in USA trade talks<figure><img src="https://images.theconversation.com/files/63979/original/sfh9p393-1415367776.jpg?ixlib=rb-1.1.0&rect=76%2C111%2C915%2C432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The heart of the matter. The container port at Long Beach.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/msun523/3457213936/in/photolist-8LCJgS-8LCJ8Y-9a4Nhj-esVtg5-b25M6T-dGeKuD-dVMcr8-hxzP5f-6s6rjN-hxzNyW-nTNhrt-6oiWZo-6oeC6T-8LCHU1-8LCHCW-8LzE26-6oeLbX-gsVTd5-dsSiKc-6gv8fQ-mGCui-6ovtqu-6jhWcV-4PcFQn-36iPxd-dGkaKb-a5kehV-36iQjy-8dz6q5-8dz9Cj-8dvRLe-8dvHHz-8dzbPq-8dz1TS-8dvRo2-8dz3S1-8dz6LY-6oeC4D-36ecTi-adNYS-bvwpxo-hxyYzR-36ebzZ-av5Zra-a5o6Fj-36ecpM-36ec6Z-dVA9FH-36edpZ-w6Jx1">sunslate</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>Efforts to build a more effective trading regime between Europe and the USA can reasonably be called positive, both for growth and the ease of doing business. Currently, however, negotiations include proposals which threaten to distort the way governments regulate companies and which might cost the taxpayer dearly.</p>
<p>Back in <a href="http://www.acci.asn.au/getattachment/b9d3cfae-fc0c-4c2a-a3df-3f58228daf6d/Gillard-Government-Trade-Policy-Statement.aspx">2011, the Australian government announced</a>:</p>
<blockquote>
<p>The Government does not support provisions that would confer greater legal rights on foreign businesses than those available to domestic businesses. Nor will the Government support provisions that would constrain the ability of Australian governments to make laws on social, environmental and economic matters in circumstances where those laws do not discriminate between domestic and foreign businesses.</p>
</blockquote>
<p>Australia took this step as, under the provisions of her 1993 trade treaty with Hong Kong, she was <a href="http://www.ag.gov.au/internationalrelations/internationallaw/pages/tobaccoplainpackaging.aspx">effectively being sued for compensation</a> over the impact of an anti-smoking policy. Part of the treaty gave multi-national corporations the right to investment treaty arbitration, the right to seek compensation for the impact of government policy on profits. According to international lawyer <a href="http://www.thelawyer.com/george-kahale-iii/3000858.article">George Kahale, III</a>, under such provisions:</p>
<blockquote>
<p>Claimants are prone to bring exaggerated claims, encouraged by the availability of third-party funding, and are <a href="http://www.curtis.com/siteFiles/Publications/GAR.pdf">supported by a systemic bias against states</a>.</p>
</blockquote>
<p>Australia <a href="http://theconversation.com/when-trade-agreements-threaten-sovereignty-australia-beware-18419">may</a> have learned her lesson: Europe, <a href="http://www.huffingtonpost.com/larry-cohen/report-from-berlin-global_1_b_5588169.html">outside of Germany</a>, may not.</p>
<h2>TTIPing the balance</h2>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=299&fit=crop&dpr=1 600w, https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=299&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=299&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=376&fit=crop&dpr=1 754w, https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=376&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/63982/original/2gjxxk2w-1415368304.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=376&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Flagging up the flaws.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/opendemocracy/1441901063/in/photolist-79WRUV-4md7Hk-79X52X-79WRUM-4mdeLV-4mdeWB-4mhgfQ-4mheZu-4mh9Co-7a1mnm-4mhfEd-4md86g-4mhfRm-4mhg1u-4mddAP-4mddLZ-79WRU8-4mdd8V-4mdcXK-4mdeqc-7a1mnb-79WDwM-79WJRa-7a1mmf-79WJR6-7a1mnj-79WRUF-79WDx8-7a1mnf-79X53n-79WJRg-79X52Z-7a244L-79WJRD-79WRUn-79X53k-7a1PTy-7a1PTC-7a1PTq-79WRUe-79WDwX-79WDx2-79WDwV-6NBsPh-7a1PTo-8yosRL-cyThiL-7ZEQ78-dS6Nk-3cq7Xa">openDemocracy</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The EU and the USA are engaged at present in setting up a trade agreement, the <a href="http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/">Transatlantic Trade and Investment Partnership (TTIP)</a> which, so it is said, will be of benefit to both parties. A major feature of TTIP is to do with the harmonisation of regulations between the EU and the USA. In one sense, this is all to the good – certainly nations must cooperate and most economists believe that free trade to some extent or another can lead to economic growth. However, <a href="http://www.kent.ac.uk/law/isds_treaty_consultation.html">the sticking point for many</a> is the inclusion in the TTIP negotiations of the contentious <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/311247/bis-14-695-investor-state-dispute-settlement-faqs.pdf">Investor to State Dispute Settlement (ISDS)</a> provision.</p>
<p><a href="http://www.ibtimes.co.uk/ttip-isds-obscure-trade-clause-threatening-tear-european-politics-apart-1470908">ISDS</a> gives international investors the right to bring a case for damages against the local government if they (the investors) feel government policy has harmed their interests. A supposed independent international tribunal hears such claims. In other words, under ISDS, multinational corporations have the right effectively to sue a sovereign state, demanding the state (that is, the taxpayer) compensates them for enacting domestic policy if it reduces profitability below that which was expected.</p>
<h2>What’s the problem?</h2>
<p>On one hand, it might seem fair enough to protect corporate foreign investment from the risk of changes in domestic policy – however, the way ISDS addresses this risk creates, at the least, the potential for distortions in the market.</p>
<p>The legitimate concerns of governments and corporations are such that there will occasionally be disagreements between them. According to the economist Milton Friedman (<a href="http://books.cat-v.org/economics/capitalism-and-freedom/intro">writing in <em>Capitalism and Freedom</em></a>), government should maintain law and order,:</p>
<blockquote>
<p>foster competitive markets … [and] government may enable us at times to accomplish jointly what we would find it more difficult or expensive to accomplish severally.</p>
</blockquote>
<p>On the other hand:</p>
<blockquote>
<p>There is one and only one social responsibility of business to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game</p>
</blockquote>
<p>Here there are clear potential conflicts of interest. The responsibility of the corporate sector is to maximise profits, while the responsibility of government is to promote competition which might reduce corporate profits; also governments must promote the public good – which is likely in some instances to affect corporate profits, for example in controlling pollution or enforcing health and safety legislation. Establishing a means by which disagreements might be resolved is, therefore, of some importance. However, to this end, the ISDS is not an efficient means – <a href="http://www.transnational-dispute-management.com/article.asp?key=1918">it is apparently skewed</a>.</p>
<h2>Inequality before the law</h2>
<p>Because of the way ISDS is formulated, the rule of law is arguably compromised. In the first place, foreign investors in a host nation have access to ISDS arbitration – domestic industry does not have such access. This asymmetry gives the multi-national investor a competitive advantage over purely domestic rivals.</p>
<p>And <a href="http://www.curtis.com/siteFiles/Publications/GAR.pdf">ISDS is arguably biased against the state</a>. If we subsume the state’s fostering of competitive markets into their promoting public good, we see disagreements between business and the state are likely to arise when:</p>
<ul>
<li>In order to prevent the compromise of public good, some activities of business must be constrained, or</li>
<li>The state, for one reason or another, might not be pursuing public good, but rather (corruptly) be penalising business.</li>
</ul>
<p>In the first instance: where the corporate pursuit of profits is reducing public good, it is by no means clear why multi-national corporations should be compensated for being required to cease or reduce this activity. We might argue rather that business should compensate the state for any damage they have committed – this is certainly what economic theory would suggest.</p>
<p>In the second instance: where government policy does not promote public good, there is certainly scope for compensation. However, there is no reason to limit access to redress. The citizens of the nation whose interest is being side-lined ought to be afforded the means to take their leaders to task. ISDS does not address issues of (potential) lack of democratic accountability – <a href="http://www.theguardian.com/commentisfree/2013/nov/04/us-trade-deal-full-frontal-assault-on-democracy">rather the opposite</a>.</p>
<p>When you pull together the evidence, it is perhaps little surprise that this is one of those rare beasts of policy where right-leaning organisations, such as <a href="http://www.cato.org/about">the Cato institute</a>, and left-leaning, such as <a href="http://www.aflcio.org/content/download/138571/3647761/AFL-CIO_ISDSReport_5.pdf">trades unions</a>, are united in opposition. </p>
<p>The <a href="http://www.cato.org/publications/free-trade-bulletin/compromise-advance-trade-agenda-purge-negotiations-investor-state">Cato institute</a> says:</p>
<blockquote>
<p>ISDS arguably weakens the rule of law, forces the public to subsidise the risk of multi-national investment abroad, and effectively encourages outsourcing.</p>
</blockquote>
<p>According to <a href="http://www.thelawyer.com/george-kahale-iii/3000858.article">George Kahale, III</a>, in practice such arrangements are no better than in theory. He warns darkly that current investment treaty arbitration systems are <a href="http://www.curtis.com/siteFiles/Publications/GAR.pdf">“seriously flawed … weapons of legal destruction”</a>.</p><img src="https://counter.theconversation.com/content/33964/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Albertson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Efforts to build a more effective trading regime between Europe and the USA can reasonably be called positive, both for growth and the ease of doing business. Currently, however, negotiations include proposals…Kevin Albertson, Reader in Economics, Manchester Metropolitan UniversityLicensed as Creative Commons – attribution, no derivatives.