an idea about police spying
This kind of thing makes grim but not at all surprising reading. Just as they did in the 1950s and 1960s, the powers that be are making it their business to infiltrate groups of citizens attempting to exercise their legitimate democratic rights. Not surprisingly, the targets seem to be progressive and human rights oriented groups.
It’s easy to be offended by this stuff, but I would like to see these groups taking a more creative approach to fighting back. They still have the common law legal system at their disposal – they just need to use it.
Specifically, I would like to see them obtain undertakings, warranties or other legally binding statements or agreements from participants in their groups in order to give them some leverage when it is discovered that someone is a spy. In particular, some form of token contract comes to mind – the organisation could contract with each member that in exchange for $1 from the group, the member agrees not to spy on it for the duration of their membership.
Strictly speaking a contract cannot contain an enforceable penalty clause which is disproportionate to any real loss suffered by one of the parties upon a breach by the other. For example, in theory when a bank charges you an ‘administration fee’ for overdrawing your account, they are only allowed to charge you the actual cost to them of any administration or other real costs (obviously this is not enforced much as people don’t tend to go to court over $40, although the world might be a less annoying place if they did).
On the other hand, it is not impermissible to include a clause for special damages, that is, losses which might not ordinarily be said to flow from a breach of the contract, but which both parties agree are in contemplation should a breach occur. So for instance, each member of a group could be asked to sign an agreement not to conduct any covert spying (defined somehow) while they are a member of the group, and to further agree that if they breach that term then the damages which flow from it include the costs of legal representation for the group in relation to that spying, the costs of media publicity to counter-act the negative consequences of the spying, the costs of losing new members who will be scared off, et cetera.
Another option would be to bind someone with a confidentiality agreement, which is a different creature altogether but effective in some circumstances.
All of this would have to be done in a way that wouldn’t seem insulting or frightening to legitimate members of your group.
There are other problems – you would have to find some basis for there to be a contract in the first place (i.e. some kind of bi-directional exchange of value). You would have to be able to quantify the damages referred to above somehow (although a court will not reject a damages claim just because it is difficult to quantify). There might be other issues depending on the particular legislation which apparently empowers the police to do these things in the first place.
That’s enough rambling: my main point is that groups like these in Australia might do better to think of creative solutions to these problems, rather than relying on the generally apathetic Aussie public to rise up in anger at the governments which permit these things to happen.