[LINK] Roadshow loses appeal

[Frank O'Connor]

On 21/04/2012, at 9:06 AM, Stephen Wilson wrote:

> I'm sure the iiNet defence was more subtle than the slogan "dont shoot the 
> messenger" even if it is ancient.

Indeed it was ... It basically boiled down to:

1. ISP's don't have the obligation, the legal power, the legal authorization, or any power of indemnified agency to police their customers and adjudicate on penalties in the manner that the MPRA and AFACT wanted under any legislation in existence at the moment within the Commonwealth of Australia.

2. Policing their customers on behalf of the MPRA and AFACT without the authorisation, power, indemnity and statutory support would leave them open to law suits by said customers for any number of causes.

Therefore they couldn't do it ... they weren't required to do it ... they weren't authorised to do it .. and they weren't indemnified against liability if they did do it. What iiNet did do was forward the MPRA and AFACT notices on to the West Australian police ... who are officers authorised by statute (and the Court) to do what the MPRA and AFACT wanted viz-a-viz policing.  As for the judicial function ... well, iiNet wasn't prepared to exercise that at all ... I mean we do live in a constitutional Commonwealth democracy where these things are prescribed in both the Constitution and the Judiciary Act amongst numerous other pieces of legislation.

There were incidental arguments that covered little numbers like cost of process, evidentiary burden, due process, the scope of the Telecommunications Act, the Evidence Act and other pieces of Commonwealth legislation.

Additionally, the MPRA and AFACT were essentially asking the Court to allow non-judicial officers (the ISP's) to take over their function (and the function of the police) in this narrow area of endeavour without any legislative, regulatory or delegated judicial basis ... and actually expected the Court to be au fait with this state of affairs. They deserved to consistently lose in each and every level of the judicial system which they contested this matter. (Indeed I was surprised that the High Court didn't award 100% of the costs against the plaintiff ... they must have been in a collective good mood on the day.)

For the rest ... I agree with Ivan's interpretation of the difference between ISP's and water companies. It was a pretty long stretch there, Stephen.

Just my 2 cents worth ...