Fairfax Media

Justice Rares legalises Optus’s copyright theft and Fairfax Media’s criminal conduct.

Federal Court Judge, Justice Steven Rares, handed down a jaw dropping judgement on the 1st February 2012 which has legalised copyright breaches by Optus.

Justice Rares has form on the board for corrupt decisions. He should be in jail, not still sitting on the bench wasting tax payers money for his own benefit.

Another case showing his form is a judgement saying that the Federal Magistrates Court of Australia can not deal with criminal matters. This enabled Fairfax Media to get away with fabricating evidence to pervert the course of justice. But first I will deal with his Optus judgement.

Justice Rares’s dodgy Optus judgement

The Australian telecommunications company, Optus (Singtel Optus Pty Ltd), has been recording and selling copies of various football games (AFL – Aussie Rules and NRL – Rugby League). Optus last year, September and October, and with the intention of doing the same this year recorded AFL and NRL games on free to air TV with the sole intention of selling these recordings to their customers for a profit. Almost everyone in the country knows you can not do that. Rent a DVD and an ad at the start will tell you it is illegal to copy the movie and sell it. Copying sport on TV for resale is the same thing.

Optus do this via their service they call “TV Now”. They record the games on free to air TV and then resell the games to their customers who can play them back on any one of four compatible devices, namely, PCs, Apple devices, Android devices and 3G devices .

There is an exception in the Trade Practices Act which allows people to record TV shows to play back at a time of their convenience without breaching copyright laws. That is section 111 of the Copyright Act 1968. (Click here to read)

But part 3 of s 111 of the copyright act makes it very clear you can not record free to air TV for the purpose of selling the recording.

Justice Rares fails to answer a basic question. What was the motive of Optus to record and store the free to air games? The answer is for resale which is covered by s 111 part 3 of the Copyright Act 1968 and a breach of copyright. Justice Rares claims it is the Optus customer who is recording the games. (Click here to read his judgement)

Melbourne barrister Paul Ehrlich had this to say on Rares’s judgement:

“My personal view is that the judge got it wrong,” said Melbourne barrister Paul Ehrlich yesterday. “The exception of the copyright act applies to a person recording a broadcast solely for private or domestic use for watching at a more convenient time.

“This legislation was introduced especially for videotapes, and the question is, who is making the recording?

“Optus is making the recording and sending it to clients for a fee.”

and this: “It is illegal for someone to videotape a program and then courier it to another person for viewing,” he said. “What’s the difference with the Optus (TV) Now service?” (Click here to read the full article)

It is clearly a breach of copyright and theft by Optus for financial gain.

If Optus are allowed to get away with this then it opens a huge can of worms. What would stop someone from copying a movie on free to air TV and giving that copy to someone else to copy and then charge them a fee for that.

Optus have since tried to close down free speech on the matter via an attempted court injunction to stop the AFL CEO Andrew Demetriou repeating criticisms he made of its TV Now service. Mr Demetriou had accused Optus of stealing and lifting its content for its mobile TV service. Which clearly Mr Demetriou is right. (Click here to read more)

I would like to see Optus try to close down this article or maybe they will block this site on their internet service.

Rares’s judgement in the Optus matter in currently under appeal and I will update this post when the judgement is handed down.

By itself the average person might think Justice Rares made an honest mistake in the Optus case. But when put together with the judgement below and other judgements that I could write about it tells another story.

Justice Rares’s dodgy Fairfax Media judgement

I will keep the background brief. I instituted unlawful termination proceedings against Fairfax Media in May 2007. Not long after I also instituted a breach of freedom of association claim against numerous managers and directors at Fairfax Media and an application for contempt.

It is the application for contempt that is the key part to this post. The net effect of filing an application for contempt is that I was instituting criminal proceedings against four individuals for fabricating evidence in my unlawful termination proceedings.

A document that was clearly drafted almost a month after my termination for the court proceedings. It was a report into a complaint that I had made to David Kirk in relation to a number of employees at Fairfax Media.

They eventually emailed me a copy of the report and the markups showed up. Markups are when a number of people are working on a document and the changes and comments that they make can be seen. From the markups it was clear that they were lying and deceiving in an attempt to pervert the course of justice.

The four individuals were the Fairfax Media CEO at the time David Kirk, the director of HR at the time Linda Price, another HR manager Carolyn Bradley and a Freehills Lawyer Shivchand Jhinku.

The directors of Fairfax Media and Freehills were made aware of the fabricated evidence and took no action. If it was not so clearly fabricated they would not have needed a judge and magistrate to hand down dodgy judgments.

At this time the matter was before Federal Magistrate Cameron who summarily dismissed the application for contempt (it never went to hearing) saying he could not deal with the matter and at the same time dismissed a number of grounds of the other two claims.

It must be noted that Federal Magistrate Cameron ultimately dismissed my whole claim which was overturned on appeal. He also eventually stepped down from hearing the case because he was caught out lying about his personal interest in the matter which I documented via the transcript which is in my book. He knew at least one respondent Mark Burrows who was a director of Fairfax Media at the time. Mr Cameron and Mr Burrows are both Knox Grammar school old boys. This is relevant because where did Justice Rares’s go to school? Knox Grammar. They all knew each other.

I sought leave to appeal although have since found out that I did not need it but that is another story.

Leave to appeal is when you have to argue why you should be able to appeal.

Justice Rares was appointed to hear the matter. In relation to the application for contempt which he dismissed he said in the judgement at section 32 that the court has no criminal Jurisdiction:

32 The Federal Magistrates Court has no jurisdiction to deal generally with the administration of justice in other tribunals or courts, nor does it have criminal jurisdiction as his Honour pointed out: see also Wentworth v Rogers (unreported, Supreme Court of New South Wales, Court of Appeal, 22 July 1987) per Samuels, Mahoney, Clarke JJA; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, especially at pp 16-17 per Dawson J. An allegation of contempt is an allegation of the commission of a criminal act. Such matters are not to be dealt with lightly or imprecisely on the basis of a catch-all claim for ‘further or other relief’. The contempt proceedings, as they were constituted before his Honour, were the plainest abuse of the process of the Court. They raised issues with which the Court had no concern or jurisdiction. (Click here to read the full judgement)

A few issues in what Justice Rares says in section 32 are:

1. The Federal Magistrates Court commenced operations in the year 2000. The two precedents that Justice Rares used are 11 and 13 years before this. How could they say what jurisdiction the court has.

2. He says ” no jurisdiction to deal generally with the administration of justice in other tribunals or courts”. Well the fabricated evidence was filed by the respondents and myself in the Federal Magistrates Court. So what is the other court he is talking about.

3. Also if the fabriacted evidence was in another court like Rares tries to make out, which is not true, the Federal Magistrates Act 2000 at section 18 says

18 Jurisdiction in associated matters

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked

So the federal magistrates court could and should have dealt with it no matter how you look at it.

Every court in the land can deal with criminal matters when it comes to contempt of court such as perjury and fabricating evidence. If they could not it would be pointless taking the oath or affirmation when giving evidence from the witness stand. It would be pointless in having to sign affidavits as well.

The Federal Magistrates Court has and will continue to put people in jail for contempt of court breaches.

Justice Rares also said that he knew the group general counsel for Fairfax Media Gail Hambly and had represented Fairfax Media before when he was a barrister. He should not have been anywhere near the case.

Justice Rares has a lot to answer for in the Fairfax matter and I have put this to him before and he refuses to respond. It has also been raised with the Attorney General and Federal Police etc. (Click here to see my previous post where it gets mentioned)

What was Rares’s motivation in the Optus matter. Well the first place one would start looking is who benefited.

A couple of days ago the Attorney General Nicola Roxon introduced legislation to parliament establishing a formal complaint-handling system for the federal judiciary. It is nothing more than a smoke and mirrors routine by Roxon which I will write about soon. But even so Justice Rares would be a good place to start. He’s a real grub.

I could write a lot more about Rares but will leave it at that for the time being. He has more form on the board for corrupt judicial decisions than what is above.

Declaration: Justice Rares has his own chapter in my book “Love Letters from the Bar Table” where I write about his criminal conduct.

This site is not about my personal experience but when people from that experience raise their heads so to speak I will write about it.

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29 replies »

  1. Shane, even though I’m a Telstra shareholder I agree entirely with what you have written as it struck me exactly the same way: How can Optus record someone’s copyrighted material and then charge a fee for seeing it, regardless of the minute time delay?

  2. Because they are above the law and the likes of our Judicial system assist them when it suits.. To the mere lay person breach of copyright seems pretty clear but who are we mere mortals to question someone like the “honourable” Judge…
    I say this site should be blasted around Australia daily..
    When will we all wake up and say enough is enough. And more to the point Who will we say it to..

  3. As Bea says “who will we say it to”….that is the trouble with the current judicial system! Will there be any improvement when we get rid of this government? As Gillard has been placing her friends on the bench I believe a NEW Govt. could get rid those dishonest JUDGES.

    • No, to me Government itself is part of the problem. Government and Judiciary sit side by side above us. A change of Government has never changed anything of the bigger picture.

      • That is true and that is why the government get a substantial mention on this site even though this site is about judicial corruption. The hardest part about solving a problem is identifying the real problem and that is the government when it comes to judicial corruption.
        But slowly and surely that can change and it starts with this website. This site is only 14 months old but we have already managed to rattle a few people and will continue to do so. Three weeks ago there were only 350 email follows of this site. Now there is over 700. If it keeps on growing than we can start driving some real change.

  4. You are quite right Shane. I have to buy an APRA licence to show free to air TV on my shop television. It’s disgraceful.

  5. Well, I can record ABC and FTA TV on my Foxtel IQ box, and Foxtel doesn’t pay the FTA channels anything for it, but it does charge me for the IQ box. No difference, really. But this site seems to avoid reason and assume everything is black or white and half the world is corrupt.

    • I am not sure whether Foxtel pays the FTA channels. But either way they are re-broadcasting with the FTA channels permission. Recording free to air TV at home is something you could do whether or not Foxtel provided the service. That is the big difference.
      The recording and selling of the games by Optus to mobile devices is not something the consumer could get without Optus first recording it without the permission of the AFL and NRL who are the copyright holders. Unless they go to Telstra who have paid for the right to resell the games on mobile devices.

      • Optus did not *first* record anything.

        Users can legally record the broadcast themselves (timeshift), convert to a format playable on a mobile device (formatshift), and play back themselves. They can do this with a VCR / PVR (such as Foxtel IQ). All the TVNow system did was automate this on the cloud – it made a unique copy each time a user requested one. No pre-recording. No multi-party streaming. For some reason this is illegal because instead of directing their VCR or computer to legally make the copy, the user directs a computer owned by someone else to make the copy.

  6. Completely disagree with your analysis of the Optus case. Consider the following: I have a Home Theater PC (HTPC) in my lounge. I can watch TV from that computer on my TV. I can also watch TV from the HTPC on my laptop, while in my room. There is nothing stopping my from also viewing TV from the HTPC while on my phone, in my room.

    Now, what happens if I want to take my computer on the train, and watch TV from my own HTPC in my own house, over a 3G connection? Does that mean it is okay over wireless but not okay over 3G?

    What about if I want to take my phone on the train, and connect to my HTPC. Is it not okay, because I am on a mobile device? Where would you draw the line between a laptop, which is allowed to connect to the HTPC, and the phone, which isn’t? The technologies are converging so quickly it is hard to tell.

    Further, what about if the HTPC is not a computer that I own, but one that I rent, from a company like Radio Rentals? Are they selling me something which will breach copyright because it allows me to watch TV on something which is not typically considered a TV (i.e. a phone or a laptop)?

    Then, what about more modern technologies, where I don’t rent my computer from Radio Rentals, but rather the much more convenient, and much cheaper option of renting computers in the cloud from an organisation like Amazon?

    What Optus doing is providing the services I’ve discussed. If they are not allowed to do this, then I would not be allowed to view TV on my laptop while at home. The distinction between all of the steps I discussed above are largely technological.

    Why would you make a legal distinction between doing something over 3G?

    Why would you make a legal discussion between phones, tablets, laptops, desktops or modern televisions (with computers inside them)?

    It just boggles the mind.

    • Thats not the main issue though the comments have gone that way. The bottom line is Optus have copied the free to air NRL/AFL games to sell for a profit which you can not do and is a clear breach of copyright laws. The judge in the matter, Justice Rares is as corrupt as they come and would have known this.

      • I must respectfully disagree again. I believe that this is the real issue, and it is not getting enough coverage. I don’t know anything about the judge, and nor do I care for him one way or the other. I also don’t really care for Optus, or how they tried to gag Demetriou. However I have heard many rash comments from not only Andrew Demetriou, but also Senator Arbib and others in the government which really concern me.

        What they don’t understand is that they are discriminating against completely arbitrary distinctions in technology.

        What if Optus sold people those old, small portable TV’s that never quite took off in the 1990s. If people then watched free to air TV on those while they were out and about, did Optus just facilitate copyright infringement? I highly doubt it.

        What about if Optus sold a phone which had a television tuner in it, and was capable of receiving and playing free to air TV, just like a regular TV in your house. Is this facilitating copyright infringement because they provided you with a computer (smart phone) which can watch television?

        No, because thats all a TV is. All modern TV’s have computers inside them which read from the tuner and broadcast the audio and video. How could shrinking this same technology down and including it in a smart phone possibly be construed as copyright infringement?

        This is what I mean when people are drawing arbitrary distinctions between different technologies.

      • You are missing the whole point. The mobile phones that play TV are coming from what I have read. But most people will still pay Optus because they just want the games and want to be able to watch them when they want. Unless the mobile phone can record at preselected times as well, which I doubt very much, nothing much will change.

        Carrying around a small TV as you suggest would not help as people are paying for the convenience of watching at a time that suits them and most people would not carry around a TV anyhow.

        Optus are breaching copyright law for profit and also undermine Telstra who has paid for the rights and the NRL/AFL who have sold the rights.

        You can run whatever argument you want but copyright law has clearly been breached as the law currently stands irrespective of what new technology might be coming. This is something you totally avoid. You need to click on the link in the post which has the relevant laws and then show me how they have not been breached.

        If Justice Rares was not as corrupt as he is we would not have been having this argument. That is what happens when corrupt judges hand down corrupt decisions. A lot of time and money is wasted by a lot of people.

      • I am not a lawyer, so I can’t comment on the specifics of the law. However if copyright law has been breached here, then I am arguing that the law is wrong.

        “Unless the mobile phone can record at preselected times as well, which I doubt very much, nothing much will change.”

        Why would you doubt that? Of course, we are debating completely hypothetical scenarios here, but I assure you that they are well within the realms of possibility. If a phone was available which could watch television, it would be a very small addition to allow it to record at preselected times.

        Although I am not a lawyer, I am a computer programmer, and I fully understand what is required for this to become a reality. I also fully believe that it will be a reality in the near future.


        (p.s. sorry if I replied in the wrong spot, can only seem to reply to your first reply.)

      • Based on what you said above you are on the wrong site. This is not an IT/technology site, it is about judicial corruption and you obviously have no interest in that.
        You are what is known as an “internet troll” This is what it says on Wikipedia about you “In Internet slang, a troll is someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as an online discussion forum, chat room, or blog, with the primary intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion. http://en.wikipedia.org/wiki/Troll_(Internet)

      • Actually, I agree that I have little interest in judicial corruption, however there is almost no coverage of this case in any form of media. So when you state that you think the judge is corrupt because he said Optus was not infringing copyright when you think that he is, I felt the need to explain why I think he was correct. I thought I’d bring some technical expertise into the discussion as to why I respecfully disagree with your analysis of the case.

        Saying that this technical discussion is off-topic is like telling a court room that only lawyers are allowed to participate in any discussion, and that all technical people should not be allowed to participate in the case.


      • The problem is that the only technical expertise anyone needs is English. The law is very clear which you claim is beyond you. You cannot copy copyright protected material for resale which is what Optus have been doing.

        As I said in the post everyone who has rented a DVD would know that because they have ads at the beginning stating that.
        So let’s get this right:

        1. You do not understand basic English
        2. You have never rented a DVD
        3. You claim to be a computer programmer and everyone in IT understands copyright because that is a day to day issue in relation to software. You have to buy it not copy it. Except for you apparently.
        4. You previously said twice that you are not a lawyer then you say something that only a lawyer would say “why I respecfully disagree”. Only lawyers and barristers use that term.

        I hate to tell you but your basic common sense is non-existent let alone any technical knowledge.
        The reality is that you are trolling to disrupt the on-topic comments. The positive there is that the post must have rattled someone for you to decide the need to come on here a number of times. Who has it rattled? Optus, Freehills, Fairfax Media, Gail Hambly, Justice Rares or others?

        Time for you to move on. You have been made.

    • “The law is very clear” – I don’t know if this is the current copyright act (http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/) but it doesn’t seem all that simple to me. I suppose this is why lawyers get paid so much.

      “You cannot copy copyright protected material for resale…” – I am not disputing this.

      “…which is what Optus have been doing” – This is our point of disagreement. They are *not* reselling copyrighted material. They are selling a service, which allows you to do exactly what you can do legally with a VCR. The law seemed to catch up just fine when personal video recorders were introduced.

      It would not have made sense to say: “You can record for your own personal watching pleasure on a VCR, but not on a hard disk”. That would be silly to discriminate between VCR’s and hard drives. Do you agree with this? Optus is not reselling material, they are just providing an online service which does the same thing.

      Let me address your points:

      1) No comment.
      2) I hope the ads at the start of a DVD is not where you get all of your legal advice.
      3) Actually, you are correct. I haven’t bought software for several years. I use open source software which is both free, in the sense that you don’t have to pay for it, and free, in the sense that you are free to modify and use it how you wish (e.g. like the wordpress blog you are running).
      4) Well, I was trying to be courteous. I apologise if this made me sound like I was speaking in lawyer speak.

      You are right in saying that the post has wound me up. However I have no interest in Optus (not a customer, don’t plan on being a customer or even using their service), Justice Rares (didn’t even know he was the presiding judge until I visited this post), Fairfax (why?), Gail Hambly (never heard of them) or Freehills (never heard of them either).

      • Suing Optus for copyright infringement when I ask them to record a show for me is like suing Sony because my VCR recorded a show when I pressed the record button. This is all it comes down to.

      • Mate , you wrote the clanger in your previous reply, “If that is the law, then the law is wrong”. Well, Optus will have to press parliment to change the law, because even if flawed, the law is the law. It is not up to lawyers and judges to judge the law, it is up to them to judge if the law has been broken, which in this case, it seems to have been.

  7. This decision was knocked over this morning by the Federal Court of Appeal (Emmett, Finn, Bennett JJ) and was televised by Sky News – probably now to HCA

  8. An awful lot of argument over a game of football. GIVE ‘EM A BALL EACH and a DUNCES HAT FOR THE JUDGE. Allan Myalup.

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