“And law was brought into the world for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt, but assist one another, and join together against a common enemy.”
Thomas Hobbes, Leviathan (Forgotten Books, 2008), at pp. 87, 147, 184
2016 marks 20 years since the High Court handed down the Wik Peoples v Queensland decision on the extent to which pastoral leases over land in Queensland extinguished native title. This year also marks the 20-year anniversary of the stoking of the judicial activism debate in Australia.
It is no coincidence that the rise of the “judicial activism” terminology coincided not only with the Wik decision, but also with the new Coalition government’s campaign to ensure all arms of government focused on the protection of “mainstream” interests. The Coalition argued these had been ignored at the expense of progressive, boutique interests during the Keating government years.
The terminology’s sudden prominence – one of the Coalition campaign’s byproducts – had a profound effect on the way the High Court’s work was discussed.
Where did it come from?
“Judicial activism” was coined in the US. It has never been regarded as a term of art in the legal field in any jurisdiction.
Historian Arthur Schlesinger Jr first used the term to describe a particular voting bloc on the US Supreme Court in the 1940s. He gave no precise definition, but suggested the “activists” were more likely than the other, more restrained, voting bloc to use the US Constitution’s civil rights protections to invalidate legislation.
Schlesinger considered his term to be politically neutral. In academia in the 1950s and 1960s, some legal scholars expressed an early scepticism about his terminology.
Academics were aware that “activism” appeared to lack a fixed definition. Did it involve a discernible method of interpreting the constitution? Or did the “activist” label merely apply to a judicial outcome?
The terminology only took off in public discourse in the US in the 1970s and 1980s. The presidential campaigns of both Richard Nixon and Ronald Reagan harnessed it as a pejorative to describe the Supreme Court’s work.
Nixon and Reagan argued the court’s supposed implicitly progressive activism – protecting the rights of African Americans and the criminally accused, for instance – could only be quelled (and power returned to Congress) by a Republican president being given the opportunity to appoint strident anti-activists to the bench.
By this point, many academics and judges in Australia were aware of the terminology. However, they regarded it either as tainted as political language, or as a term uniquely applicable to the US. It was linked with bill of rights litigation, which is of less significance in Australia due to the lack of explicit civil rights protections in the Australian Constitution.
The same might be surmised of the popular media. They also avoided using the term, even as the High Court handed down politically charged decisions in the 1980s. The term remained dormant in Australia until the early 1990s.
“Judicial activism” only came to the fore in Australia between 1992 and 1995, as the Mabo native title decision was handed down, followed by a suite of decisions on implied rights in the constitution.
A handful of commentators and academics also used it rather innocuously, in passing, in this period. This was perhaps because they were aware of the term’s inherent ambiguity.
In 1996, as “judicial activism” entered political discourse, it assumed a new dimension as a term of absolute denunciation in Australia. In the years ahead, chief justices as diverse in views as Anthony Mason, Murray Gleeson and Robert French all warned against the activist label. This was because it concealed, rather than revealed, the essential critique that was being made of the High Court.
How it took hold in Australia
The Wik decision involved no “civil rights” questions. The High Court majority decided the grant of a pastoral lease did not necessarily extinguish native title, but would extinguish native title to the extent of any inconsistency.
This was hardly a judgment that promoted native title interests at any expense. But it nevertheless rankled the Coalition at both federal and state level as an example of sectional interests prevailing. The pastoralists were seemingly regarded as representative of “mainstream” interests in this case.
The deputy prime minister, Tim Fischer, and Queensland premier, Rob Borbidge, repeatedly attacked the High Court for its activism in Wik in “making [native title] law”, rather than interpreting it.
Borbidge’s view of the work of the High Court was simplistic. The High Court has always made law; this is not a matter of controversy. But the prime minister, John Howard, and others tacitly acknowledged the use of the terminology after Borbidge’s remarks.
Within a matter of weeks, a sustained public attack on the High Court had begun. The majority judges were described as “bogus”, “purveyors of intellectual dishonesty” and “undermining democracy” in further developing a framework for the recognition of native title.
A judicial activist, it seemed, engaged in non-judicial behaviour. They decided cases in favour of a preferred (non-“mainstream”) litigant or interest, to reach a result that was inconsistent with a conservative worldview. Whether there was any particular method discernible as constituting activism was another question entirely.
These early accusations seemed to equate activism with (progressive) results-oriented decision-making. However, it appeared no early protagonists in the debate were able to flesh out their claim that the majority decision in Wik was devoid of reasoning, or a ruse to mask the court’s progressive agenda.
Later attempts to give the term meaning also failed to gain traction. Was activism equated with dynamic (as opposed to legalistic) reasoning? Or did it involve significant change and expansion to common law principles, often to parliament’s surprise? Or the use of non-legal sources – for instance, works on Australian history – to buttress arguments?
Did judicial activism involve recourse to international legal materials rather than relying on Australian precedent? Or was there no method at all?
The only common thread was that activism – whatever it may be – was not something a judge should ever engage in.
Here to stay?
Using a catchphrase such as “activism” allows a commentator to avoid giving explicit reasons for their disapproval for a decision, while nevertheless using the catchphrase to accuse the bench of judicial illegitimacy.
It is a serious and derogatory charge to make of a court. It is a potentially unjust charge to make if no working definition of activism is disclosed at the outset. This is especially so when a commentator’s implicit understanding of activism extends only to examining the ultimate result in the case and deciding whether it accords with their own political preferences.
The term, it seems, is here to stay, both in certain sections of academia and elsewhere. It has arisen as an accusation levelled at the Federal Court while processing refugee claims, and has been described as a potential threat that might arise should a bill of rights be introduced in Australia.
Even over the past year, commentators have argued that proposals for Indigenous recognition in the Constitution will further encourage the courts’ activism. They have also argued that criticism of the former High Court judge presiding over the trade unions royal commission, Dyson Heydon, fails to appreciate his impartiality as an anti-activist.
Will the popular media assess the potential candidates for the soon-to-be-vacant seat of High Court chief justice through the “activist” lens?
Informed critique of the courts and their work is essential to the proper functioning of a democracy. Unhelpful shorthand phrases, however, do not assist with producing informed critique. Rather, they promote a form of opaque criticism that may well cloak analysis (or lack thereof) of court judgments, if not judicial outcomes.
Over the weekend, New South Wales police charged a man with murder after an alleged burglar died following an incident in the man’s home in the early hours of Saturday. Conversely, in a separate case, committal proceedings are continuing against two men charged with murder allegedly committed during a home invasion in Western Sydney in 2014.
How far can homeowners lawfully go to protect themselves in a home invasion in Australia? Where is the line drawn between self-help and vigilantism?
What is home invasion?
“Home invasion” is a popular rather than legal term. It emerged in the 1990s to describe multiple offenders, carrying weapons, who unlawfully enter a home, intending to rob or injure persons inside.
Australia has no specific offence of “home invasion”. Relevant offending is usually prosecuted through offences including robbery/armed robbery, break and enter with intent, burglary/aggravated burglary, and assault.
However, two states – South Australia and Western Australia – have laws that deal specifically with the issue of self-defence to home invasion. Additionally, protection against home invasion may involve the occupier performing a citizen’s arrest.
Self-defence, defence of property, and home invasion
In most home-invasion cases, occupiers who discover a person unlawfully in their home will be acting in defence of themselves and their family – as well as protecting their property.
Although the laws of self-defence vary across Australia, most laws require in essence that the person believed on reasonable grounds that it was necessary in self-defence to do what they did. And, from their perspective, there must have been reasonable grounds for that belief.
South Australia and Western Australia – the two states that have laws specifically dealing with self-defence to home invasion – require that occupants who act in defence of themselves or another, or to protect property against an intruder, must believe on reasonable grounds that it is necessary to do so, but relax requirements of proportionality in the home occupier’s response.
The approach generally adopted in Australia differs significantly from the “stand your ground” approach to self-defence that has been influential in the US. “Stand your ground” generally encourages “self-help” by removing any requirement of retreat. It permits a person who is threatened or attacked to stand their ground and claim self-defence even where an avenue of retreat or other means of avoiding the conflict was safely available.
It is claimed that these laws originate from the old common-law castle doctrine. This effectively provided that a person attacked in their home could use reasonable force, including fatal force, to protect their life without any duty to retreat from the attacker. But, in reality, these modern laws go far beyond that 17th-century tradition.
Their popularity is underpinned by factors that are distinctive to the contemporary US: high levels of gun ownership; a belief in the constitutional right to bear arms; and decreasing public confidence in the ability of law enforcement agencies to protect the community.
Approaches to self-defence in Australia still tend to emphasise reasonable necessity and discourage vigilantism. Police advise Australian homeowners against keeping weapons for protection and instruct them to immediately contact police if they suspect an intruder is in their home.
Although there are significant differences, laws in each Australian state and territory broadly empower members of the community to make a citizen’s arrest where they find someone committing a crime.
Consequently, a person who apprehends an intruder unlawfully inside their house could arrest the wrongdoer and deliver them to police. As a general rule, a person may use “reasonable force” which is not disproportionate to – or unnecessary for – the purpose of the arrest.
But if the offender resists, complex issues may arise as to how much force can lawfully be used.
Determining how far a person can lawfully go in protecting themselves in a home invasion requires consideration of complex legal issues. It also involves broad matters of social policy.
By requiring that a person acting in self-defence or effecting a citizen’s arrest must act genuinely and reasonably, Australian states and territories have developed a distinctive approach that appropriately balances self-defence against vigilantism.
Recent police investigations into the alleged actions of Mal Brough, before he became special minister of state, have led some to suggest that “Westminster tradition” demands Brough step aside. But what does “Westminster tradition” mean in Australia, and how does ministerial responsibility work?
… federal government is held responsible to both the House of Representatives and the Senate.
But how? And why?
Australia’s Constitution sets the ground rules for its system of government. But many things one might expect to be in it simply aren’t there.
The Constitution doesn’t spell out how the prime minister is to be chosen, for instance, or when they should be obliged to resign. There’s no reference at all to the prime minister in the document. And although the Constitution requires ministers to be members of parliament, there’s no mention of terms such as “responsible government” or “ministerial responsibility”.
… the principle of responsible government – the system of government by which the executive is responsible to the legislature … is an integral element in the Constitution.
But where do we find this “integral element”, if not in the text of the Constitution?
What are conventions?
In many important areas of Australia’s system of government, much is determined by unwritten rules – or what we call “constitutional conventions”. Australia shares this characteristic with the UK’s Westminister system of government, on which Australia’s is partly based.
As British legal writer Sir Ivor Jennings put it, constitutional conventions:
… provide the flesh which clothes the dry bones of the law.
They are rules that help make the legal text of the Constitution work, and they can add some flexibility to constitutional arrangements by evolving over time.
Australia isn’t alone in relying on such conventions to make its Constitution work. Many countries have similar conventions to Australia’s; different legal systems also have different conventions. In the United Kingdom, for instance, it’s a convention that the Speaker of the House of Commons is truly independent of party politics – but there is no such convention in Australia.
As they are unwritten rules, it’s not always entirely clear when a constitutional convention exists, let alone exactly what it allows or requires. Unlike laws, constitutional conventions cannot be enforced in the courts.
So, when a convention is broken, the consequences are usually political rather than legal. Instead of being brought before the courts, a convention breaker is more likely to suffer political criticism, be the subject of popular outcry, or be punished at the ballot box.
But while conventions cannot be enforced in the courts, they’re understood by everyone involved to be important constitutional rules.
Why is it so?
When the Australian Constitution’s framers were drafting its text in the late 1800s, they thought certain things went without saying, given the way the system was designed.
That means Australia’s constitutional system is built on the assumption that all ministers will be responsible to the parliament and, through the parliament, responsible to the Australian people. But there’s no precise legal statement of how that assumption works, what it covers, and what happens if the ministers are not sufficiently responsible.
The general understanding is that ministers are accountable to parliament for their policy decisions, for the administration of their departments and for any relevant indiscretions. But these are unwritten rules: what does “accountable” mean anyway?
For some, it means the minister must resign upon the discovery of any misadministration or mistake. For others, accountability requires that the minister is obliged:
… to explain and to justify his or her conduct, the [parliament] can pose questions and pass judgement, and the [minister] may face consequences.
But there’s no authoritative view.
The reality is that political circumstances will determine what’s required of a minister, and the consequences for not meeting expectations. If a minister has the support of their party colleagues, for example, it’s possible that less will be required of that minister and that the consequences will be less severe than they might otherwise have been.
What chance reform?
A desire for greater certainty has led to some discussion in Australia – and elsewhere – of arguments in favour of codifying constitutional conventions and making them enforceable as a matter of law. This is certainly possible.
As recently as 1977, the Australian Constitution was amended to codify and entrench what had previously been a convention about filling casual vacancies in the Senate. The argument for codification may make most sense in the context of conventions about the Governor-General’s reserve powers, over which there was so much controversy in 1975.
But the risk of codifying conventions more generally is that we transfer power away from democratically elected representatives and towards the courts. If we legally require ministers to resign for poor administration of their departments, for example, a judge might have the final say about whether a particular minister should resign for a particular action. This may undermine the extent to which the people can control their government.
The question then becomes whether we prefer greater flexibility and democratic control over the government, or greater certainty and judicial control. But there may be a middle ground.
The Australian Department of Prime Minister and Cabinet, for instance, offers a “guidance” document on those constitutional conventions known as caretaker conventions. These conventions affect how government operates during election campaigns.
The document is “neither legally binding nor hard and fast rules”, and cannot be enforced in the courts. But it offers clarity for those affected by the relevant constitutional conventions. Similar guidance documents on other conventions could provide greater certainty about the relevant unwritten rules.
But, as things stand, it’s incumbent on all of us, as citizens in a democratic society, to ensure that our representatives hold our government to account.
This article is part of a series on breaking political conventions. Look out for more articles exploring various political conventions in the coming days.
As scientists, one of our responsibilities should be to promote clarity. A lot of problems are caused by an incorrect or incomplete understanding of terms we regularly, and even lovingly, use.
When I use the word “evidence”, what I think I mean is a function of many things, not least my education in science and philosophy.
It’s also the product of many discussions with people about science, superstition, psychology, pseudoscience and subjectivity.
These discussions have added nuance to my understanding of the nature of evidence. They’ve also alerted me to the fact this nature changes in certain circumstances and through certain worldviews. In other words, what I intend to say is sometimes heard as something else entirely.
This type of miscommunication can be bad enough when dealing with someone who isn’t using the terms in a scientific way, but it’s particularly frustrating when it happens when talking to teachers and communicators of science.
I’d like to take a shot, then, at defining some key terms in the name of clarity.
People might think scientific law is about the highest sort of truth you can get; they might think something “proven” scientifically has the status of certainty, which is to say it’s always true: nature will always behave so as to be in accord with this law.
While in some way accurate, that interpretation is fundamentally flawed. It conflates (or worse, ignores) important concepts and creates a brittleness in the public conception of science that erodes confidence and trust.
First and foremost, laws in science are seldom proven: they are demonstrated, and they are demonstrated because they are demonstrable, which is to say they are descriptive.
Newton’s inverse square law of gravity outlines how the force of gravity between two massive objects varies with distance. Basically, if you double the distance, the force is reduced by a factor of four. Triple it and the force reduces by a factor of nine, and so on.
The same relationship with distance holds for the intensity of omnidirectional radiation, as shown below. What’s significant about a law like this is that while it describes the effect it does not really explain it.
Newton himself was famously silent on the question of what gravity was and why it would behave this way. To get an explanation of what gravity is, we needed Einstein. And we needed a theory.
General relativity explains the phenomena associated with gravity by postulating that the presence of mass warps, and hence affects movement through, space-time. This theory – or model – of how the universe works, when “run” through the process of mathematical calculation, produces outcomes that correspond to possible states of the world.
These states are checked against reality to test their veracity. The more times the model produces results that agree with observation, the more confidence we have in the model as an accurate representation of how the world works.
The example above shows nicely the difference between a model and a law: the former is a representation of reality, the latter a descriptive account.
It’s worth noting, of course, that “model” can be both a noun and a verb (and sometimes both at once). We can build a model of the solar system, or we can model weather on a computer. Either way, the terminology holds.
To put this another way, a law describes what happens and to what degree, but if we want to find out why it happens we need a theory – a model that represents reality.
A model can give us a more satisfying insight into the possible mechanisms of the universe – it’s an analogy (for rarely is it completely accurate) that betters our comprehension, as analogies are designed to do.
Both theories and laws have predictive power and are subject to being refining, falsified or confirmed; although in the case of laws refining is best done in the light of theoretical change (i.e. explaining the law by the theory/model).
Observing the law
We generalise to laws through observation, and support our generalisations with theoretical understanding. But it can be very tricky to determine that something is true in all cases (we can’t test the potential law in all possible places and at all possible times) or just happens to be true every time we check.
When stating something is universally true (even if parameters need to be defined), we must be very careful to determine whether we mean it’s true because it must be that way, or simply because it happens to be that way.
It may be a necessary condition of the universe that all like charges repel each other. But what about a generalisation such as “all posters are held up by drawing pins”?
The posters in my room and all those in my building are held up by drawing pins, but this hardly seems a necessary condition of posters: surely something else would do the job just as well. These are extreme examples, but many “laws” of nature may not be necessary laws – which seems to suggest they really shouldn’t be called laws in the first place.
Calling something a law certainly does not mean it is unchallengeable.
Laws do not develop from theories. To put it another way, theories do not become laws. I have thrown out science textbooks from several schools because they outline an unrealistic progression: from hypothesis to theory to law.
These three concepts are different creatures, and one does not morph into the other. One of the most significant misunderstandings in science exists because of this type of thinking.
In as much as science can make us sure of anything, we are sure evolution occurred in the manner generally accepted by evolutionary biologists; it is a fact about the world.
Darwin, as is generally known, developed a theory – a model – to explain evolution. This model is natural selection. It’s unfortunate that the lovely phrase “the theory of evolution by natural selection” has been truncated into the misleading, inaccurate, confusing and very wrong phrase “the theory of evolution” – including on this very website.
The “theory of evolution” is wrong for two reasons (when scientists use it they know of what they speak, but this is not my point). First, evolution is not the model – natural selection is. So we immediately conflate two very different ideas – that of evolution and the model of natural selection.
When added to the mistaken belief that theories become laws, adherents of young earth creationism (for there are really no other serious evolution opposers) can claim evolution as a tentative conclusion, akin to vague, hand-waving notions, that culminated in Ronald Reagan’s famous dismissal of evolution as “only a theory”.
The consequences for both the teaching of evolution and the credibility of science are enormous. And yet I have never seen a defender of science articulate this misunderstanding.
Just as a theory is a model, and law is a generalisation, a hypothesis is a statement about the world that could be true or false.
Moreover, the statement must be testable, which means it must be falsifiable, or inherently disprovable.
Phrased like this, hypotheses seem to have more in common with laws than they do with theories, considering that Newton could easily have hypothesised the inverse square law of gravity without going through any theoretical modelling of gravity.
But, of course, the creative act of devising a model of the universe, or a part of it, is to hypothesise that the world is really like that, and the hypothesis becomes that the model is an accurate representation.
Hypotheses, then, are ways of talking about building theories and laws, but not in the common way of theories being intermediate between hypotheses and laws.
While hypotheses can stand alone or inform both theories and laws, the interplay in practice between various hypotheses, theories and laws is web-like and complex and exists at nearly every level of operation from the experiment of the day to the paradigm of the century.
The idea of a hypothesis-to-theory-to-law progression is seriously flawed, and this needs to be articulated as the root cause of much misunderstanding.
“Prove” comes from the Latin probare, meaning “to test”. It’s also the origin of the word “probe”.
An older term – “proving ground” – for a testing area or trial shows we have not entirely lost that interpretation. But in the everyday use of the term, “proof” has come to indicate certitude.
What remains poorly understood is that “proof”, as such, is a deductive creature that really does not sit comfortably in science (at least not in an affirming sense). In mathematics a proof conveys that, within the bounds of the axioms in use, there is a truth to be discovered or a certainty to be expressed.
For its theoretical claims, and indeed for its laws, inductive science can only boast confirming instances.
He often spoke of the exquisite sensitivity of his theories to falsification, saying that it would not matter how many times experiment agreed with him, it had only to disagree once to prove him wrong (granted, of course, the validity of the experiment, as recent neutrino-based dramas have shown).
The simple fact that we can never test his theories under all conditions in all places at all times creates conclusions that are tentative, even though the level of confidence may be very high.
We may “prove” facts about the world, such as Earth being more or less spherical, but this does not extend to our laws and theories to the extent we might like to think.
So proof works best in science to falsify, not to affirm, though this is the opposite of common belief.
If we are clear on the above, we have a better appreciation of what makes an idea scientific, as opposed to pseudo-scientific.
We know that the best scientific hypotheses and theories are those with great explanatory power and high sensitivity to falsification, and that these are often the results of highly creative thinking, as are the experimental attempts to confirm or falsify them.
This is a very beautiful idea, but one that can’t be appreciated unless you know science does not spend its time stamping into place dry facts about the world, but grows as a vigorous and exhilarating human enterprise showcasing the best of collective human achievement.
Clarifying these ideas will, I hold, go a very long way indeed into increasing people’s understanding of science and their confidence in scientific findings.
Google’s efforts to scan millions of books for an online library have passed another legal hurdle with the United States appeal court agreeing earlier this month that the search-giant’s Google Books project does not violate copyright law.
The appeal judges’ ruling supports an earlier district court ruling two years ago. The case was brought by the Authors Guild, which argued that Google’s initiative constituted copyright infringement and could deprive authors of revenue.
But Google has successfully argued that its efforts could actually boost sales by making the text of books searchable, making it easier for people to find published works.
This latest outcome came without much surprise in the US, and the ruling is consistent with the earlier court rulings on fair use. The Authors Guild plans to appeal the case before the US Supreme Court but it is unlikely that it would succeed.
Google Books and Australia
The Google Books decision is based on a so called “fair use” doctrine which means that everyone can use copyrighted works free as long as the use falls under a particular definition of “fair”, including for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. But such broad and flexible doctrine does not exist in Australia or in most other countries, including Europe.
Instead, Australian copyright law contains narrower and more specific “fair dealing” exceptions as well as a few even more narrowly defined specific copyright exceptions.
It is unlikely that the Google Books project would fall under any of these exceptions. This means that if Google is sued in Australia for the same Google Books project, it is likely to lose the battle. Due to much stricter European copyright laws, a few years ago Google lost a case on Google Books in France.
On the other hand, Australian laws are more flexible than French ones and Australian courts may be as well able to find in favour Google. In short: the legal situation of Google Book still remains uncertain in Australia.
How Google Books works
It is worth clarifying here that not everything that can be found on Google Books website was digitised and made accessible by Google for free and without the permission from the copyright holders.
If you can access chapters from a book, it means that Google has got permission from the publisher of the book to do so (and maybe agreed to remunerate the publisher – hence the author(s) – for this too).
It is only when Google does not have an agreement with the publisher, it takes a risk to digitise the book but then only show snippets of the text. This can be a few lines or a short paragraph where the search terms can be seen.
The US appeal court’s decision on Google Books confirmed that the use of snippets (but not chapters or full books) is fair use.
Google Books is an innovative and useful service but the question is whether Google should pay authors and publishers for its use of their work.
The Australian Law Reform Commission (ALRC) proposed last year that Australia follow the US and introduces a fair use doctrine.
Accepting fair use in Australia would mean that Google is free to digitise all Australian books for free, put the text in its search engine and allow users to view at least snippets from the books.
Australian authors argue that fair use would further worsen their financial situation that is already rather miserable. As a result, government has not shown any signs in taking up this proposal.
It is true that fair use doctrine has its own risks. For many it looks open, flexible and seems to welcome innovative services such as Google Books. On the other hand, it creates even more uncertainty for those who want to rely on it.
What use is fair? Each particular case needs to be checked in court, but Australian courts do not have years of experience in applying fair use, as US courts do.
Alternatives to fair use
If fair use is not a perfect solution, what could be a compromise? This is a question with no easy answer.
Instead of fair use, European academics suggest reviewing the existing copyright exceptions and adding one broader exception that could apply in “emergency” situations such as Google Books case.
The ALRC also suggested, in its report last year, an alternative to fair use; the consolidation and expansion of existing fair dealing exceptions. Maybe this could be a starting point for a discussion?
One of the problems Google Books faced was the difficulty in finding all the copyright holders of a work and signing a contract with each of them. The Google Book Settlement was meant to ensure that all copyright holders whose books were used in Google Books were remunerated.
Wouldn’t it make sense to create licensing solutions that would make it easier for such projects as Google Books to get licenses and pay fees for millions of authors and publishers? Authors would then get paid and the global service would stay running for all to use.
If I took all of the money out of your wallet, you’d probably feel as though you’d lost something – wouldn’t you? Now imagine instead that I only took 80% of your money. Would you feel as though you had “won” the remaining 20%?
What if I tried to convince you that you had actually benefited from this transaction by playing happy music and letting off a few firecrackers?
This thought experiment might help you to get your head around a proposed legal action by law firm Maurice Blackburn that plans to use Australian consumer law to argue that poker machine operators are engaging in misleading and deceptive conduct to entice gamblers into using poker machines.
Misleading and deceptive conduct is prohibited by Section 18 of the Australian Consumer Law. The central test for this is whether the conduct is likely to mislead or deceive consumers having regard to all the circumstances. To apply this test, you need to identity both the “conduct” and the “relevant class of consumers”.
In this particular case, the class of consumers might be “gamblers”. Or, it might focus more specifically on “novice gamblers” or “problem gamblers”.
Maurice Blackburn seems to have identified a range of potential conduct that it would like to target in its action. One that particularly stands out is the technique known as “losses disguised as wins”. This is where a poker machine enables players to bet on more than one line and a minor win on one of these lines sets off a graphics and sound display that indicates a “win” when, in fact, the player has lost most of their money.
Applying the law to poker machines
The nice thing about consumer law is that it relies on fairly common-sense questions. So, the court would basically ask: if a poker machine displays a series of flashing symbols and music associated with winning and makes a chiming sound indicating that it is counting up winnings, would an ordinary and reasonable (novice) gambler be misled or deceived into thinking that they had won something despite having actually lost money?
Further inquiries or closer attention to detail that could enable a person to discover their error is not particularly relevant to this test. Also, the literal truth can be legally misleading, because the law recognises that humans do not behave rationally and tend to form an opinion in response to their overall impression of conduct.
In this case, for example, it might be argued that gamblers pay more attention to the flashing symbols and music than they do to their credit balance.
Previous cases give some idea of how the courts have applied this test. In ACCC v TPG Internet in 2013, the High Court found that TPG Internet had misled consumers by advertising “Unlimited ADSL2+ for $29.95 per month” when this price was available only to customers who bundled broadband with a home phone service.
The important detail was that TPG’s advertisements actually contained an explanation of this condition, but it was displayed less prominently than the advertised deal.
The High Court found that the attention given to advertising material by an ordinary and reasonable person may well be “perfunctory” and, therefore, many will only absorb the “general thrust”. The court also emphasised that it was enough if consumers were sufficiently misled to engage further with the company, even if they subsequently understood the true nature of the offer and chose not to purchase anything.
The TPG case was followed by the Federal Court in ACCC v Coles Supermarkets in 2014. In this case, the Australian Competition and Consumer Commission (ACCC) successfully alleged that Coles had misled consumers by advertising its reheated frozen par-baked bread with the words, “baked today, sold today” and “freshly baked”. This finding was made despite par-baked bread being able to be truthfully described as having been “baked”, and that Coles had detailed its par-baking method on its website.
Once again, the court emphasised the importance of considering both the context and the dominant message of the conduct.
Forming an argument
So, how could Maurice Blackburn possibly prove that gamblers might be misled by the “losses disguised as wins” technique?
It might draw on recent Canadian research which found that the flashing symbols and music that accompany “losses disguised as wins” trigger similar arousal levels in novice gamblers as real wins do – and that arousal is a key reinforcer in gambling behaviour.
In short, research seems to have demonstrated that novice gamblers do pay more attention to flashing symbols and music than they do to their credit balance. Perhaps unsurprisingly, these bright, loud messages appear to dominate.