Article written by

Lauredhel is an Australian woman and mother with a disability. She blogs about disability and accessibility, social and reproductive justice, gender, freedom from violence, the uses and misuses of language, medical science, otters, gardening, and cooking.

5 Responses

Page 1 of 1
  1. Sam Bauers
    Sam Bauers at |

    AFACT thought they could get a relatively small ISP to capitulate and set a precedent in their favour. Thankfully iiNet acted on principle despite the risk.

    With this plus their stance on the clean-feed, I’m happy to be an iiNet customer right now.

  2. Elisabeth Marie Alice Victoria
    Elisabeth Marie Alice Victoria at |

    The American companies can still appeal to the High Court and its a tossup as to what Howard’s conservative appointees will rule

  3. lauredhel
    lauredhel at |

    Do you see iinet as relatively small, Sam? They’re the third-largest ISP in Australia.

  4. Sam Bauers
    Sam Bauers at |

    It was just code for “someone besides Telstra”.

  5. Jo Tamar
    Jo Tamar at |

    Sam: when you want to set legal precedent, it’s FAR better to do it with someone who is going to take the matter all the way: if you settle, it’s not a binding precedent by a long shot (although it might be something if a psychological precedent, in that if you get a few people to settle, others might start to follow).

    Elisabeth Marie Alice Victoria: our High Court is nowhere near as political as SCOTUS. Not even in constitutional cases; not even when the government is a party. Sure, there are no particularly “activist” members on the current court (the way the term “activist judge” is normally used, which I have quibbles with, but that’s a matter for another day :) ), but (1) activist vs conservative (in terms of judges) =/= politics (and certainly not party politics); and (2) there’s very little in the way of a trend in relation to any member of the current Court consistently finding either in favour of government or in favour of big corporations.

    In particular, there’s no observable trend based on which government judges are appointed by – and there is much less politics in the appointment of judges. Kiefel J, for example, has been appointed to courts by governments of both ilks.

    In any case, based on the above extracts & summary, I’d actually say that Cowdroy’s decision was fairly conservative, from the point of view of the law (and using a definition of conservative that means “doesn’t like too much change”, as opposed to the common usage of conservative that means “for big corporations”), as it appears to involve a fairly straightforward application of existing principles without much, if any, extension. So if it gets to the High Court – which, yeah, it probably will, but they’ve got to go through a Full Federal Court appeal first and then the High Court has to grant special leave to appeal – my money would be on the High Court ultimately upholding Cowdroy’s decision.

    But a couple of caveats: I haven’t been through all the legal arguments, or even all of Cowdroy’s decision, and also, these things can be unpredictable. So who knows?

Comments are closed.