Thursday, June 08, 2006

We are off to WordPress

Ok, people, the time has come. Bigger and better things. We are moving to wordpress.

Same blog address, just type http://thelawthoughts.wordpress.com

I like it a lot better, update your feedreaders and let me know what you think.

The Lying Big V

As a lawyer, who in their right mind would tell the media that a statement of agreed facts they handed up to the Federal Court was just something they said so that the problem would go away?

Now, Steve Vizard is in the spotlight for a possible perjury prosecution. It is not like he said something in court before the police found a document on his hard drive which contradicted his evidence. He contradicted his own evidence in the Magistrates Court via a court document to be handed up in the Federal Court!

If I were his lawyer, I would be checking seek.com.au for a new job and my professional indemnity insurance. What a great response. ‘Oh, yeah, that…We were just blowing smoke up your arse there, Your Honour. We didn’t really expect you to take those as facts, more, just, um, well, goodbye.’ [door slamming…sound of lawyer running].

How pissed off would the judge be?

Stop Pretending

Just a quick note to John Howard, who, whilst probably better at running a country than me, remains a git.

If you are going to have convictions, don’t pretend to the electing public that you can reconcile your convictions with what is the ‘politically correct’ thing to say. If you want to remove discrimination against homosexuals, don’t then turn around and say their relationships are less real, important, valued, legitimate [insert correct adjective here] than that of a man and a woman.

It is like saying ‘I don’t hate Aborigines but doesn’t it suck that they can get access to the same welfare benefits as white people’.

Saturday, June 03, 2006

Gay Marriage in America

Being a country that supposedly values freedom above all other values, the United States sounds utterly hypocritical when its President spouts ideas such as a Constitutional amendment to ban gay marriage. To amend the Constitution is a HUGE deal. Australia has done it 8 times in over 100 years and the US has made 27 in the history of the country, and only 3 since 1967.

Whose freedom is important to Americans? Everybody’s, or just ‘my own’? How can a country based on liberty tell people with a straight face that they can’t marry whoever they damn well want?

Now, I know this is a political move that probably won’t go anywhere. Further, I know that people will say they aren’t telling people who they can and can’t have a relationship with, but I don’t believe such assertions. It is all about trying to oppress people in such relationships.

I find it incredible that the conservative base will get revved up by this. Is this a tactic like the Republicans used at the last election, where they put these kind of Propositions on ballot papers to ensure conservatives voted, or do they really believe this crap?

Montenegro's independence

Monday, May 29, 2006

Faking it Today

The Today show got shafted yesterday.

Jessica Rowe asked our troop commander in Dili whether he felt safe, given that he had an armed soldier standing behind him, guarding him.

The response was that he didn’t need this soldier, who had been placed there by Channel 9’s stage manager.

Ouch.

Crikey’s links to the video is here, and Rowe’s follow up is here.

Friday, May 26, 2006

Banning the Da Vinci Code

Why are people, especially Catholics, getting so worked up about this stupid book and movie? A cinema in NSW has banned it, and I have heard stories about it being banned in India too (links are somewhere!)

I am a Catholic and I couldn't care less about what the Da Vinci code says. It is fiction, although good and intriguing fiction, but is it really worth the fairly draconian measure of censorship?

Don't these people realise that by banning something like this, they give it extra impetus and maybe even more credibility? If you ban something, you first of all make people flock to it, but also you make people ask why it is being banned. Are they trying to hide something? Is somebody trying to prevent me getting information?

If you, as a Catholic, cannot refute the claims made in this work without trying to restrict public access to such claims, you don't really have a great deal of faith in your religion.

This from a person who isn't in the slightest big religious, but I am reminded of Mill's argument that truth is only discovered when even the one person minority in a sea of people on the other side can make their argument, and have it examined by the majority.

Criminal Smooching

A new anti-porn law in Indonesia is reportedly to make kissing in public a criminal offence.

Seriously. Five years jail for kissing in public? And they wonder why nobody is visiting anymore.

Tuesday, May 23, 2006

Iran v Israel - Round 26483

Someone tell me – can they do that??

For those who can’t be bothered clicking the link, Israel is going to sue Iran in the ICJ for incitement to genocide.

UPDATED: Here is a nice little summary of the legal issues involved in this case.

Trust Opinio Juris to come up with the goods.

Aboriginal Customary Law

I find it so interesting to read about cultural relativist arguments, pro or con, such as that surrounding customary Aboriginal law and our tolerance thereof.

Essentially, the cultural relativist says it is ok for Aboriginal men to rape small girls because ‘that is the way we do it’. It has been used to shield people from consequences of performing female genital mutilation and the like in Africa. Proponents argue that it is not up to ‘us’ to impose ‘our’ culture on ‘them’.

Critics argue that there are certain universal standards below which no culture can fall below. This type of argument goes along with ideas like universal rights. Basically, it says that ‘you’ can keep ‘your’ cultural practices as long as they meet universally recognised baselines, such as not being allowed to rape people.

I think this falls short of the extreme kind of argument, which runs like ‘the West is civilised, we know how to behave, you don’t, therefore you can’t do X’. I don’t like that argument either.

I, for one, am against cultural relativism where it permits violation of these basic human rights. However, are there cultural practices which, if we allow them to happen, do not violate those rights? Are we only interested in practices that violate what we say are basic human rights? Who gets to decide?

In this case, my opinion is that Aboriginal law should not be used for criminals to hide behind, or to achieve indemnity from prosecution. Laws allowing these practices to continue do not exist in Australia and, whilst I am all for allowing Aboriginals to pursue their heritage, I don’t think the tolerance of the legal system should extend that far. What we do need to do is work with Aboriginal communities to discover which parts of their law can be successfully integrated into the Anglo model, so that practices which do not harm can be allowed to continue as a matter of law, and practices which conflict with, for example, Anglo criminal law, should not be allowed to continue.

What do people think about all that?

UPDATED: The judge in this case has admitted that he made a sentencing mistake, in that he took too much account of customary factors, and not enough of the 'heinous crime' that was committed. Very interesting, not often judges make those types of comments.

Grandpa Directors

Wow – I haven’t been blogging much lately, but it seems not too many people have noticed. Yes, it is exam time again. I’m slaving over a hot corporations law textbook and gee, I can’t wait til this is all over. Although it will be nice to go and have a pot with my 1st year brother after my last class this week!

I had to give my grandpa director’s duty advice over a beer tonight. He is 80-odd and let it slip that he is on the board of a ‘big’ company (his word). I asked if it was listed and he said ‘well, it is on the computer, so I guess it must be’. I assume he means his share trading software lists this company or something. I can’t, as yet, find this happy organisation on the ASX database, so it may not be.

In any case, he doesn’t go to meetings and has no idea what they are doing. Alarm bells went off. Oh my GOD grandpa, AWA v Daniels, YOU HAVE A MINIMUM STANDARD OF DUE CARE, SKILL AND DILIGENCE AND YOU HAVE TO ACT FOR A PROPER PURPOSE AND IN GOOD FAITH and when I had stopped hyperventilating, I told him that he had a choice – go to meetings of the board and work out what the hell was going on in his company, or send them a resignation letter. I may have been a bit rash, but when he said he couldn’t sit in a meeting unless he was the boss, I guess it showed me his time as a director was probably over.

He said he would send off a letter in the morning.

See, sometimes I forget that clients, and my grandparents for that matter, haven’t read the textbook. It becomes all the more important to watch out for what your clients are doing and ensure they are aware of their rights and obligations before the fact, rather than have them come in with a Writ and ask you to fix it. If your client tells you that he won’t comply with the rules he doesn’t even know about, even after being informed of them, then it is time to throw in the towel and get out of the game.

Friday, May 19, 2006

Echoes of the Past

Apparently, the Islamic parliament seems to have passed a law requiring non-Muslims to wear identifying insignia. Yes, Jews are targeted, but Christians also must wear badges. This apparently is so that Muslims don’t accidentally touch somebody who is ‘unclean’.

Also, however, Iranians must wear standard clothing.

A State sponsored dress code? Why aren’t we doing more to stop these people getting hold of a nuclear weapon? They are…just…bloody…nuts.

Sunday, May 14, 2006

Karl Rove Indictment

Rumors about that Karl Rove will be indicted for perjury over the Valerie Plame affair. See here, here and here.

Should this happen, it will be yet another crack in the administration which refuses to abide by any reasonable notions of the rule of law.

Essentially, Rove will be indicted for lying to the grand jury investigating the Plame affair, in which the name of Valerie Plame, a CIA agent, was leaked to the media. Her husband was a prominent critic of George Bush’s claim that Iraq sold yellowcake to Nigeria, or something similar.

In any case, it is great to see prosecutors with the guts to go after the big boys. Somebody like Rove, a ruthless, behind-the-scenes operator, almost never gets nailed for anything.

I can’t wait to see what happens.

Thursday, May 11, 2006

ICANN rejects .xxx

Apparently, ICANN has rejected calls for a new top level domain, .xxx. The argument, it seems, goes along the lines of recognising = condoning = encouraging, which frankly I cannot see.

How hard would it be to create a .xxx domain, legislate so that all porn sites must be within .xxx and allow ISP account holders a tick box option to block all .xxx sites?

That seems very, very sensible to me. I can't imagine that porn operators will be encouraged to open a new porn site just because they can call it sex.xxx rather than sex.com.

Or am I missing something?

Monday, May 08, 2006

Closing Gitmo?

It is good to see that, after all, massive, sustained political pressure does work.

I can’t imagine Bush wants to close Guantanamo because he is feeling beneficent towards the detainees there. More likely, it is just not worth the stink anymore.

There is also probably some element of having worked out that nobody detained there can be proven to have actually done anything detain-worthy.

For those of you who actually believe in little things like human rights, jus cogens, rules about torture and the like, keep up the fight. Just remember that with people like Bush, it takes a while to register.

Thursday, May 04, 2006

Case of the Year

I didn’t realise it was happening already, but Day 1 of the WorkChoices challenge happened in the High Court today.

The ABC report is here, the Austlii transcript of the hearing is here.

I have to admit, I haven’t read the transcript. I will do so and report. I don’t know if Peter Beattie’s assertion, that a Constitutional Convention will be required should the states lose, is quite correct, but it is incredibly important.

Essentially, the Constitution gives the legislature power to make laws with respect to a whole range of things, corporations being one of them. The question is: is this legislation with respect to corporations? There is a whole lot of Constitutional rara that goes on about the scope of each head of power, but I really don’t think it relates solely to corporations. It is enough, however, for laws to mainly be enacted in relation to corporations. So, just because the laws apply to, say law firm, does not preclude them from being made ‘with respect to corporations’.

What I find most interesting is the interpretative perspectives being used. The conservative base in America, for example, wants the Constitution interpreted as if that interpretation were set in stone on the day it was made. Under this approach, the meaning of words is fixed. Hayne J is happy, it seems from the report, to allow for some bending of that interpretation, which is a more progressive approach. Words can change their meaning, with the result that the Constitution can also change its meaning.

In the end, though, the question I would ask is why would this legislation be unconstitutional if the old Workplace Relations Act was Constitutional. And if that Act is not Constitutional, why has nobody challenged it before?

Wednesday, May 03, 2006

Failed Capital Punishment

If this incident is not a strong enough indictment of capital punishment, probably nothing will be.

The lethal injection on this bloke didn’t work, because the vein they were trying to use collapsed.

Can you picture the horror of this scene? You have a guy strapped to a bed, knowing he is about to die. He doesn’t die. He looks around and says ‘kill me properly, damn it’. He doesn’t really, but you get the picture.

If this is not cruel and unusual punishment, I defy anybody to give me a better example. What chaos.

Legal Football

The whole football siren brouhaha has been very interesting over the last few days. Now that the laws of the game have been overridden, I am very interested to hear what people think. My opinion is that the game should have been awarded to Fremantle, but I can’t reconcile this with the laws of the game.

Basically, the game ends when the umpire says it does. The laws of the game don’t say anything about what happens if the AFL employs a stupid timekeeper, who can’t observe his duties. Incidentally, it is also a rule that the timekeeper must continually sound the siren until the umpires hear it.

In the wash up, and from a strictly legal perspective, I find it incredibly funny that the respective clubs are considering their legal options. I think there are legal options, for what it’s worth, but I don’t think the Supreme Court will bother examining them. However, I don’t think this will give people the message that the result of a football game IS NOT IMPORTANT, no matter how much the presiding judge wishes to do so.

In effect, the losers can point to the rules, which say the game ends when the umpire says, and argue that the rules of the game were arbitrarily overridden. For what it’s worth, I think this is an entirely valid argument. However, the argument in favour of the winner, which has been bandied about as a ‘natural justice’ argument, is far more interesting from a legal perspective.

If the result stood, people could argue that the decision was unreasonable, that natural justice was not done. My response would be, ‘so what?’. In effect, the decision is not reviewable for administrative error. Some administrative decisions can be reviewed, but usually only when the legislation giving the power to make the decision also gives the power to have the decision reviewed. As far as I know, nobody has ever seen football results as important enough to make them a ‘reviewable decision’ for the purposes of a natural justice type argument. No legislation says ‘the AFL commission can make decisions about results of football games and this is a reviewable decision’ (qualified lawyers, please forgive my crucifixion of legislative form).

Basically, therefore, Fremantle went to the AFL and argued ‘it’s just not fair, people’. It must be the first time in the history of the world that barristers (who I think represented both clubs) have made that argument and actually won.

Sunday, April 30, 2006

Podcasting Legal Guide

The Podcasting Legal Guide is out, supported by a Creative Commons Licence.

Hugely important work, and massively comprehensive. I think I might start a podcast soon. Why, you ask? Why not, I ask? Because everybody else is, and I have always considered myself a sheep.

By the way, has anybody heard of the idea that barristers might start recording their arguments, to provide samples to prospective clients?\

I am sure recording in court is against the rules, but I will read my Supreme Court Rules, find out, and report back later. Unless somebody wants to do it for me!

Reneging on the Refugee Convention?

Andrew Bartlett never fails to provide a succinct comment on very important issues: vide, his work on how we should (or should not) assess visa applications.

I don’t vote Democrat and I never will, but I do wish that more politicians were more like Andrew Bartlett.

Tuesday, April 25, 2006

Invoking or Copying?

I have a small problem, in that the area in which I want to write is covered so well these days that I just can’t compete.

Witness, for example, Professor Patry’s post on the Google v Miro debacle, where Google used the style of a dead painter’s work to honour his birthday.

Just too good.

Monday, April 24, 2006

Problem fixed?

It seems the problems are now resolved. Happy reading all.

Blogger Problems

Blogger is being a pain in the backside. If you can see this message, you know I am still posting.

If you can't, well you don't.

Kind of ironic, isn't it.

Bagaric Follow Up

I wanted to make a quick elaboration on yesterday's post about speed cameras. My problem is with the standard arguments against cameras and fines at the levels they are at today. These are firstly that cameras are simply a revenue raising device and secondly, as Bagaric asserts, humans are not infallible and are therefore punished excessively when they accidentally break the law. The arguments are interrelated.

Bagaric does not address the revenue raising argument explicitly, but his discussion of fine levels implies the argument. I would argue that of course cameras are a revenue raising device. This is the point of fines for breaking the law. The law sets a speed limit and, at least for all you 'anti-revenue raisers', does not make jail an alternative unless in extreme circumstances. This is the point of the law - to revenue raise. The only way people change their behaviour is if it hurts them in some way, and usually the most hurtful way is either a death in the family or caused by the driver, or a big fine. I would not wish the experience of killing another person on anybody, so for me, fines are the way to go.

I also notice that if the government really wanted to revenue raise just for the sake of it, they could be a hell of a lot more devious in their use of speed cameras. I may be wrong, but last I heard, cameras are never hidden (in trees for example) and are never placed on the bottom of a hill. It is, therefore, usually in an open space where if you are speeding you deserve to get booked. Further, fixed cameras are fairly widely publicised. Hands up if you didn't know cameras are all over the Western Ring Road, in the Burnley Tunnel and outbound on Alexandra Parade. For people who get booked at these points, all I can say is, well, why on earth were you speeding there?

So, of course speed cameras are there to revenue raise. As I always say, don't speed and you will not get booked, especially if you know cameras are fixed. This runs into Bagaric's next argument, that human beings are fallible and make mistakes. Of course they do, I would not deny that. However, I'll let you in on a little secret that Bagaric never would, indeed never does. He is discussing fundamental principles of criminal law that he would never fiddle with because of the massive cost that would impose on the legal system.

For the uninitiated and in a broad sweep, criminal liability requires not only a criminal act, but a criminal intention to commit that act, or a recklessness as to the harm that might be caused by that act. Some crimes, called crimes of absolute liability, require no criminal intention and apportion liability simply for doing the act. There is an intermediate category of crimes called strict liability, which allow an offender a defence of honest and reasonable mistake of fact. Therefore, if an alleged offender can prove they were mistaken as to a fact, such as the speed they were going, rather than mistaken as to the law, such as the prevailing speed limit, they will not be criminally liable. Speeding offences impose strict liability.

When Bagaric argues that humans are fallible and should not be punished when they speed accidentally, he is actually saying that speeding offences should not be ones of strict liability. He is saying that an offender should be able to go before a Magistrate and say 'Your Worship, I didn't mean it.'

Can you imagine the chaos that would be caused if every time the police wrote a speeding ticket, they needed to go to court to prove the offender meant it? This is why speeding is a strict liability offence, the harm from imposing strict liability where sometimes people will speed accidentally is outweighed by the social cost of allowing many offenders to get off their fines because the police could not prove their criminal intention at the time they were speeding.

Have a think for a moment how difficult it is to prove somebody had the intention to do something. It is a near-impossibility, which is why the cost to the legal system and to society of proving such intention is done away with.

Bagaric would never tell you that, which is amazing for a criminal law academic. It is almost intellectually dishonest, but I wouldn't actually accuse him of that - he might get angry with me.

Whence you came II

Only because I have nothing really interesting to say today (quiet you, who says I am never interesting!), I thought I would show you all where my visitors come from:

1
Australia
Auburn, Victoria
2
Australia
Narrabeen, New South Wales
3
Australia
Geelong, Victoria
4
Australia
Fawkner, Victoria
5
Australia
Melbourne, Victoria
6
United States
Horseheads, New York
7
Australia
Padstow, New South Wales
8
United States
Lawrence, Kansas
9
United States
Tampa, Florida
10
United States
San Diego, California
11
Australia
Footscray, Victoria
12
United States
Santa Clara, California
13
United States
Sunnyvale, California
14
Singapore
Singapore, Dakar
15
Australia
North Turramurra, New South Wales
16
Australia
Melbourne, Victoria
17
United Kingdom
18
United States
Sunnyvale, California
19
Portugal
Corroios, Setubal
20
Australia
Canberra, Australian Capital Territory

You heard right - North Turramurra, New South Wales and Corroios, Portugal. Give a yell if it is you visiting from one of these places!!

Saturday, April 22, 2006

Stuff

Well, I’m back, I guess.

I had two days in Sydney this week visiting the family, which is always nice. I forgot the two essays I have due tomorrow and walked the dog around the park in Rushcutters Bay.

Two little tidbits today:

I got myself very worked up this morning when I read Mirko Bagaric’s latest claptrap. I just can’t respect a person who says there is no connection between speed and road deaths.

Further, he is unaware that ‘dissension’ is not a word, which I felt it necessary to point out.

When I read Bagaric’s work, I am often struck with how populist and irresponsible he can be. I can only think that there is some connection between his positioning and his work being published in newspapers like the Herald Sun, where his populist ranting makes a connection with readers. However, it really is a funny position for a legal academic to place himself in.

Why, I ask myself, does Mirko feel the need to be populist, rather than actually analysing in an academically rigorous way the arguments he wants to make.

I am the first to admit less than sufficient academic rigor in my blogging work, but then again, I am not in charge of a Melbourne law school.

And:

I wish I could find a link, but I heard a story on the radio about a British man who has been charged with theft for ‘eBay fraud’, in that he took money but never delivered a product.

Apart from the inner law geek, which screamed ‘that’s not theft, it is obtaining financial advantage by deception’, my outer law geek started to think about how this is the first time I have heard of a case where eBayers are given some legal protection. I have always had faith in eBay’s feedback system, whereby the information market provides an assessment of a participant’s credibility.

It can only be a good thing, however, if criminal sanctions are imposed upon people who are fraudulent in their eBay participation. That way, rather than relying on the information of others, there is finally some legal support underneath the eBay framework, which can only encourage more participation in the entire process.

Friday, April 14, 2006

The Imminent Smackdown

Why is nobody making a fuss about this?

The US warning Iran that it may, as a last last last last resort, need to use force to bring them into line? Where have I heard that before?

Thursday, April 13, 2006

Dan Brown in Winning Form

Dan Brown is being sued again for plagarism, because a Russian author claims Brown stole his idea about Leonardo Da Vinci was a theologian.

It is a shame that people would abuse the legal system to promote themselves and ride the coattails of somebody else’s success.

I say this because there is no bloody way he will or can win this case UNLESS BROWN HAS USED A SUBSTANTIAL PART OF HIS WORK, in its FORM, rather than its content. You can’t copyright the idea that the Mona Lisa is a Christian allegory. Copyright only extends to the expression itself, not the idea.

If I were this cracker’s lawyer, I would be saying, ‘Calm down, sunshine’. Because they will get thrown out of court so fast they won’t know what hit them, along with a substantial costs order.

Wednesday, April 12, 2006

Accountability in Office

John Howard says that his appearance at the Cole inquiry shows his government is accountable. I think Mr. Howard has confused the concept of 'accountable' with 'available to answer questions in the most obstructive fashion possible'.

Monday, April 10, 2006

Bangladeshi Cricket Chaos

Ominous. Very ominous.

The Australian cricket team are going to lose to Bangladesh and I am going to be the first to jump on their bandwagon. Go tigers.

Maybe Ricky Ponting thought they should lose their test status because if they win this match, Australia will probably be the only team Bangladesh has beaten in both forms of the game.

This, of course, is a wild assertion which I have no evidence to back up, and frankly I can’t be bothered finding out.

Incompetent Or Lying? Is It Even Relevant?

I don’t care how limited Mark Vaile’s knowledge of AWB dealings was.

If he, as trade minister, didn’t see all these cables that were flying around, he was asleep at the wheel and must be the most incompetent department head ever, except for Alexander Downer.

I don’t like this government, but I don’t believe they are incompetent either. In fact, they are almost too competent. Therefore, they are either not nearly as good at government as they make out, in which case they are not fit to run a country, or else they are lying dirtbags, in which case they are not fit to run a country.

End of story.

Saturday, April 08, 2006

Court Appearances via Blog

This is quite incredible. Via Between Lawyers, there are rumblings that court trials in South Korea may be run by blogs.

This is a really interesting, innovating thoughts. Why couldn’t Directions Hearings, Committals and lots of other interlocutory steps be taken via a Court blog.

Each case could have a separate blog, with only the parties having access.

Really, really interesting thought.

Friday, April 07, 2006

More Stadiums = Good City

Just what Melbourne needs. Another football stadium.

Listen here Mr. Bracks. Take your $190,000,000.00, buy a thousand or two trundle beds, build a little shed somewhere in the ‘burbs, find some doctors and call it a bloody hospital.

Then, take what is left over and buy some school kids a decent education. That way, they will be able to do something better with their lives than sit on their bums watching rugby in a ‘bubble’.

This must be what was leftover from the Commonwealth games budget.

Updated: I should make very clear that I have no problem with rugby, soccer, or watching sport in general per se. I bang my chest at the footy with the best of them. My problem lies in the wild skewing of our priorities. Why, when we have people on the street who are mentally ill and can't get a bed, or who are lined up out the door and round the block six times waiting for surgery, are we building ANOTHER BLOODY FOOTBALL STADIUM?