The Law Thoughts

We are off to WordPress

2006-06-08T00:38:00.000-07:00

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

2006-06-08T00:26:00.000-07:00

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

2006-06-08T00:20:00.000-07:00

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’.

Gay Marriage in America

2006-06-03T20:45:00.000-07:00

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

2006-06-03T20:33:00.000-07:00

Good on them. Montenegro formally asserts its independence.

Faking it Today

2006-05-29T21:11:00.000-07:00

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.

Banning the Da Vinci Code

2006-05-26T23:31:00.000-07:00

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

2006-05-26T23:25:00.000-07:00

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.

Iran v Israel - Round 26483

2006-05-23T05:21:00.000-07:00

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

2006-05-23T05:13:00.000-07:00

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

2006-05-23T05:02:00.000-07:00

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.

Echoes of the Past

2006-05-19T21:13:00.000-07:00

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.

Karl Rove Indictment

2006-05-14T07:44:00.000-07:00

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.

ICANN rejects .xxx

2006-05-11T16:29:00.000-07:00

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?

Closing Gitmo?

2006-05-08T01:08:00.000-07:00

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.

Case of the Year

2006-05-04T06:51:00.000-07:00

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?

Failed Capital Punishment

2006-05-03T05:01:00.000-07:00

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

2006-05-03T04:57:00.000-07:00

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.

Podcasting Legal Guide

2006-04-30T06:43:00.000-07:00

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?

2006-04-30T06:25:00.000-07:00

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.

Invoking or Copying?

2006-04-25T23:06:00.000-07:00

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.

Problem fixed?

2006-04-24T18:16:00.000-07:00

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

Blogger Problems

2006-04-24T18:14:00.000-07:00

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

2006-04-24T04:17:00.000-07:00

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

2006-04-24T04:13:00.000-07:00

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!!

Stuff

2006-04-22T20:26:00.000-07:00

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.

The Imminent Smackdown

2006-04-14T05:57:00.000-07:00

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?

Dan Brown in Winning Form

2006-04-13T02:29:00.000-07:00

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.

Accountability in Office

2006-04-12T18:15:00.000-07:00

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'.

Bangladeshi Cricket Chaos

2006-04-10T02:08:00.000-07:00

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?

2006-04-10T01:12:00.000-07:00

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.

Court Appearances via Blog

2006-04-08T21:16:00.000-07:00

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.

More Stadiums = Good City

2006-04-07T07:29:00.000-07:00

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?

Mother Theresa a Porn Star? Or Just A Lookalike?

2006-04-06T06:14:00.000-07:00

I really should have published this first, as it pushes my much more cerebral transport piece down the page a bit.

Paris Hilton is going to play Mother Theresa in a new film. Here you go, I’ll say it again. Paris Hilton is going to play Mother Theresa.

I thought I was reading The Chaser. The report says that she was cast because she looks like Mother Theresa. On what planet exactly? I bet the director just crawled out from under a rock, walked down Hollywood Bvd, saw Paris Hilton and went ‘Wow! That girl really looks like Mother Theresa’.

Yeah, it is all about the resemblance, not the ‘star potential’.

It seems you can still play Mother Theresa, probably the next Saint, even if you star in porn films on the internet.

Maybe that is where all the journalists went when The Chaser shut down. To bring down the Herald Sun from the inside.

Why Increased Tolls Will Not Make a Difference

2006-04-06T06:08:00.000-07:00

I don’t know how serious this plan is, but it seems users of the Westgate, Citylink and Eastlink are to face increased tolls. This, apart from nailing people who do not really have a choice, and making Citylink (Transurban) shareholders very rich, will do nothing to alleviate the traffic problems Melbourne faces.

Firstly, there is not a real choice for most commuters and increasing tolls will not alter their behaviour, because they cannot behave differently. Plenty of people simply do not live near viable public transport. For these people, the increased cost is just something that will have to be sucked up. For the average Westgate user, for example, who, let us assume, cannot ride their bicycle to work, and who doesn’t live near a train line, there is no other option to get to work.

Likewise, for businesses that require the Westgate to transport goods and services, there is simply no choice but to use the bridge. I can’t see a delivery guy taking a fridge on the train. Therefore, for these two categories of user, increasing the toll simply increases the revenue of the operator and does little to actually change behaviour.

At the very least, we will go back to clogged secondary roads, a problem the freeways were designed to avoid in the first place.

Secondly, for lots of users who DO have alternatives, that alternative is so unattractive as to be useless. For example, I have a friend who lives in Hoppers Crossing, which I understand is the second last stop on the Werribee train line (I could be wrong.) He says the trains are so infrequent that even by their second stop, it is difficult to get a seat. Now, I am not one to shirk standing up on the train, but it must be a very unattractive option to pay about the same as the toll for a train ticket, yet have to stand toe to toe with a whole lot of people with coughs for an hour or so each way. Why not pay the same amount and spend the time with Matt and Jo on FoxFM?

So, increasing tolls will only assist in the traffic problem when there is a more attractive option. In Melbourne’s case, that means the toll has to become so expensive that people are willing to pay to catch an unreliable, overcrowded train. Otherwise, there MUST be something done on the public transport side to increase the attractiveness of the option, even holding the tolls level. If I were given to pushing my own little bandwagon, I would say free PT is the way to go.

I do understand and acknowledge that trains are to upgraded. However, that is something I will just have to see to believe. If, for example, a train went through Box Hill station every five minutes, like in lots of European capitals, all of a sudden you have a better case for ‘the better alternative’ I am after. I just don’t think it will happen like that unless the government changes its service standards in the train operators’ contracts. And that ain’t gonna happen.

Without a severe tip in that balance either on the (+ tolls) side or the (+ better public transport) side, there is no way tolls will do anything to change the way people behave.

Go on, economisty people, I am sure I am wrong somewhere, so go ahead and nail me. I will stand by the assertion that ‘its all about the shareholders’. Of tollway operators, that is.

More More IR Rubbish

2006-04-05T22:11:00.000-07:00

Further to my last post, I would be interested in seeing exactly which part of the new IR laws support the assertion that you can be sacked by SMS.

I don’t imagine the legislation actually says that, and if not, I don’t think it is necessarily illegal. However morally reprehensible it might be, I would be interested if somebody could point me to some legal authority which holds that sacking somebody by SMS is not permitted.

More IR Rubbish

2006-04-05T22:08:00.000-07:00

Why on earth should you need a medical certificate for sick leave days?

Surely, once you are entitled to sick leave, rightly or wrongly, you can take it for whatever reason you want. If a person has an ailment that is too crap to go to work with, but not really a big deal, why should an employer force them to bear the cost (physical, financial and time) of getting a medical certificate?

I am not saying that sick leave entitlements are rightly or wrongly granted by IR legislation. What I am saying is that once you have that time available as leave, if you choose to go surfing and use up all your sick leave, then get sick, well tough bikkies, you just don’t get paid. If you are constantly away without pay and without a medical reason, there is no reason why you should keep your job. However, the incentive to go to work when you are not sick is there – should you get sick, you lose your wage.

Likewise, if you hack it and go to work when you are sick, you can cash out your sick leave (can’t you? I’m happy to be corrected on this one).

In short, you are entitled to X days sick leave per year. Take them and get paid for those X days and nothing else, or don’t take them and either accrue them for when you are REALLY sick, or cash them out at some appropriate time. Requiring that you get a medical certificate is simply a waste of everybody’s time and money.

International Conflict

2006-04-04T19:28:00.000-07:00

It really does suck how many international conflicts are currently raging.

The first swathe on this list are just the situations which have worsened in the reporting period.

IR Interventions

2006-04-04T19:22:00.000-07:00

Along with my previous post on the IR standoff at the abattoir, and in the sake of fairness, the Government has, of course, rejected claims the intervention was undertaken to garner favourable publicity.

In fact, it shows the new laws actually work.

Slicing and Dicing Your Inbox

2006-04-04T07:17:00.000-07:00

If you ever have problems with email and have it spewing forth from all parts of your inbox, 43Folders has a great series on how to get through a giant pile of crap in a short space of time, and change your habits so you are not so naughty again.

Your inbox will never look the same, trust me.

No More Funny Hats?

2006-04-04T07:10:00.000-07:00

How sad.

British barristers are getting rid of wigs, because their international colleagues at The Hague don’t wear them.

They can’t put on headphones to listen to translations. Oh, and they look silly.

Come on, people, get imaginative. Get an iPod and make the Court podcast! If I paid all that money to go to law school, only to be deprived of the right to wear that wig, I am going to be incredibly shirty.

Hat-Tip: Opinio Juris

Suing Fileswappers Again

2006-04-04T07:05:00.000-07:00

Why, oh why, does anybody bother to sue file shares for copyright infringement?

Helloooooooooooooooo!!! You just look like an idiot, and a nasty one at that.

Time to find yourselves a new business model.

Try, Try, Try Again

2006-04-04T06:07:00.000-07:00

Saddam Hussein is to be tried for genocide.

Good.

There are always questions about the international criminal trials of really big blokes like Saddam, but I have a philosophy on these things which, to be honest, not many people share.

We aim for justice and retribution against the Uncle Slobodans of the world. However, the crimes of these men are SO over the top that, even if we pull their toenails out before running them over with a bus, no amount of retribution can really make them pay for the crimes they committed. On that assumption, I don’t think it matters if they die in custody, like Milosevic, after an incredibly lengthy, stressful trial for the defendant.

I don’t think we, the world, or the victims, get justice when we pick a specific offence, try Hussein, and gas him to death. I don’t even think it is worth gassing him in the first place. I think justice comes by perception in the community. In this respect, I see no problem with hanging out every piece of dirty laundry, every parking ticket and smack of a slave that Hussein carried out.

Try him for genocide, even if it costs $100,000,000 and takes ten years. Bring out all the evidence. Tell the world exactly what happened, when, where, why and how. That way, no part of these animals’ crimes remains off the public record. That is the only way, in big criminal trials, we will ever get justice.

I do place a rather large caveat on this philosophy. Where a victim, or a community of victims do not wish to relive the events which led to the crimes committed and charges laid, we have no right to intervene. They are the ones who, if they say it is too much, or that giving evidence is too traumatic, should be listened to.

Otherwise, don’t pick a few offences, convict Saddam and shoot him. What is the point? Better I say to ensure for posterity that nothing escapes the record. No matter how long it takes or how much it costs.

The IR Standoff

2006-04-04T05:59:00.000-07:00

A very interesting thing happened this week when the Federal Government’s new industrial relations law became Law this week. If you have been living under a rock, the Cowra abattoir fired most of its workforce, only to offer them jobs back at a much lower rate. Howls of protest ensued. The ALP of course pointed to this as a prime example of the rampant nastiness to be unleashed under the new laws. The Liberal party, with a straight face, said that it had concerns about employers ‘jumping the gun’ and that it would take time for the ‘good’ parts of the legislation to shine through.

Now, the abattoir has agreed to withdraw those termination notices, after a wee visit from the Office of Workplace Services. It is hard not to agree with the ACTU when it asserts that the government intervened in this case so that people would not scrutinise too heavily the actual provisions of the legislation. Is it just me, or does the visit by the faceless bureaucracy sound to anybody else like a group of Lygon St toughs going around to threaten somebody with a kneecapping?? Sounds like it to me.

I can’t see how this wasn’t a purely political move. Send in the troops and let’s pretend this action is illegal. I don’t think it is illegal, sadly. I saw Stephen Smith interviewed and he challenged Mr. Andrews to point to the provisions in the Act which make the action taken in the first instance by the abattoir illegal. When pushed, he would not do so.

If anybody is swallowing the crap that Mr. Andrews is feeding them, good luck to you. Now, a person cannot be dismissed ‘unfairly’, however this does not apply where a termination is for “operational reasons”. Operational reasons are any economic, technological or structural reasons (s643(9) Workplace Relations Act) which, in effect, could mean bloody anything. Interestingly, I can’t find the ‘less than 100 persons’ exception, which allows employers with less than 100 employees to do, well, anything they want, if you believe the ALP.

The government won’t actually tell us why this action was illegal. Instead, it sent in the Perception Police and made sure that we all knew This Was Not On. Which we now all do, of course.

'Ruthless' Employers Are Sacking People

2006-04-02T18:27:00.000-07:00

I don't often swear, especially in this public forum, but The Hon. John Winston Howard gives me the shits.

Apparently, "new industrial relations laws are being misused by ruthless bosses as an opportunity to sack people". The cases quoted in the Herald Sun report are an abattoir sacking workers and placing others on 24 hour contracts, and another which sacked its entire workforce, subsequently reinstating them with a $180 a week pay cut.

The reason this gets me is that the Government knew this is exactly what would happen. They feed people a whole pile of crap about the wonderful things that are going to come from this legislation, but then when the Bill becomes Act and then Law, they worry about a few unforeseen 'rouges', who are just buggering up this fair new system for everybody.

Nothing is worse than when you are fed bald faced crap from politicians and you know they know it is crap.

If there are 'good reports' to come, Mr. Howard and Mr. Andrews, and the positive aspects of the legislation will become obvious soon, better get your skates on boys. People won't accept this rubbish much longer.

What is a Taxonomy?

2006-04-02T04:48:00.000-07:00

This is an excellent, excellent resource for lawyers. Ian Best has put together a taxonomy of legal blogs.

He wouldn’t take mine because (1) it is not American and (2) it is crap.

In any case, blogs are grouped in just about every imaginable category and information is very easy to find.

Highly recommended.

Bail Problems

2006-03-29T17:15:00.000-08:00

Simon Overland, the cop in charge of Purana (the underworld operation) wants a streamlining of the bail system.

Essentially, the delays involved in criminal proceedings allow a judge to justify granting bail to defendants. For example, if you can’t expect your case to be heard for six months, the Crown finds it very difficult to sustain an argument that bail should be denied.

If we got these cases moving through the system so that it was only a month or two, maybe judges will be less willing to grant bail, which might prevent the Tony Mokbel’s of this world skipping the country.

Seriously, why should a defendant such as Tony Mokbel be allowed a 24 hour head start on the police? The poor coppers are doing a great job at the moment, in my opinion, and there must be nothing more irritating than working your butt off to get a Carl Williams, Mick Gatto or Tony Mokbel charged, only to see them allowed back on to the streets until trial. [Although I must admit – I think Gatto was denied bail. Anyone?]

It must be even more galling when the conditions of bail are so lax that a defendant can skip the country without anybody noticing.

Impeachment

2006-03-25T03:37:00.000-08:00

Why shouldn't Congress impeach George W. Bush? MSN suggests the rumblings are getting louder.

If I said to you that one of the last two Presidents were impeached, then provided you with the following facts:

1. One President lied about a country having weapons of mass destruction, so that he could go to war against it, allowed countries like Uzbekistan to 'interrogate' suspects, ran and runs a Cuban gulag (which to this day holds an Australian citizen without trial), brazenly asserted that the Geneva Conventions prohibitiing torture 'do not apply' and openly wiretapped domestic citizens' telephone calls without any warrant or judicial oversight whatsoever, as well as had a staffer who allegedly was involved in outing a CIA agent, whilst

2. The other President had sex with a White House intern,

which would you think got impeached? What kind of world are we living in?

The Progress of Kazaa

2006-03-23T15:26:00.000-08:00

Universal Music -v- Sharman Networks, the Kazaa case, had another judgment handed down yesterday, link here. Basically, the question dealt with was whether Universal could begin contempt of court proceedings against some of the respondents (there are nine). We need to go back a step first.

At trial, orders were made against Sharman. In particular, the Respondents were restrained from authorising infringement of copyright by Kazaa users without getting a licence from the copyright owner. Even if they are eventually successful at the appellate level, the orders made bind them in the meantime. At the time, the orders seemed funny, because they also included monitoring by the Court. rather than just an Order shutting down the network full stop. I commented on that, although I can't find the post on my blog anymore.

Now, if the Order is not complied with, Sharman will be in contempt. The question yesterday was whether such proceedings could begin. Branson J in the leading judgment held that yes, such proceedings could be brought.

The argument against was that the Order was too ambiguous to be legally valid. Basically, the Court said 'Not a chance, people', and found that the Order was perfectly valid. This means that hearings will take place as to the FACTS in issue, whether in fact Sharman is in contempt of court.

This will be a very intereting little side story in the entire Kazaa saga.

Google Searching - Interesting Happenings

2006-03-19T23:32:00.000-08:00

When one performs this Google search:

"future fund" "corporate governance" 2006 -2005

My post on the FF comes out on top.

Is nobody else writing about this issue? I mean, I only wrote a few lines about it, surely somebody else has a better match than me on their website.

Mills and Government Power

2006-03-16T00:45:00.000-08:00

I am reading Mills On Liberty today, which I am loving. By the way, if you are ever interested about what I am reading, check my sidebar!

In any case, I came across this quote and realised how important it is that we read and understand old material. We learn from these works because, really, everything has already happened. How is this quote for reflecting our changing modern world, in terms of the relationship between State and individual:

“In England…there is considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion.”

Wow. Do we now think that the power of government is our power, and its interests aligned with ours? Is that why we keep letting Howard and Ruddock erode the protections against that power? Are we with them or against them?

Categories of Legislation (warning - legal theory)

2006-03-16T00:39:00.000-08:00

My Corps class was incredibly boring today, and when I was thinking about how we might classify the Corporations Act in terms of types of legislation. It occurred to me that we can categorise pieces of legislation according to how much they might be altered in future. I am unsure to what end I am thinking about this, but in any case, here is my categorisation of types of legislation:

1. Settled

No surprises here, but this is legislation that is very rarely, if ever, altered. Laws like the Property Law Act, the Instruments Act, the Judiciary Act (Cth) and the Trade Practices Act all spring to mind. Rules of civil and criminal procedure are in this category also. Every hundred years or so, we revisit the fundamental principles on which these laws are based. Otherwise, we leave these pieces of law alone.

2. Progressive – Permanent

These are laws which are revised incrementally in one direction only. By this, I mean laws which are slowly moved towards a particular state, and which no government will ever roll back. I see laws like anti-tobacco laws and food labelling laws in this category. They are laws for which society has chosen a direction, but cannot go the whole hog at once. If, for example, governments attempted to outlaw tobacco, outrage would ensue. However, it seems to me that, as a society, we have decided people should smoke as little as possible. Therefore, legislators push against dissenting opinion very slowly. Having said that, I cannot see any future government suddenly allowing people to smoke on train platforms again. Once a state has been reached, legislators move on to the next incremental stage of reform until the laws have reached the point at which ‘society’ deems them to be best extended.

3. Progressive – Temporary

In the same way, I see laws which are incrementally revised in a direction, but which are subject to governmental roll back every now and then. The position society has decided best is not as clear cut as with ‘Progressive-Permanent’. Therefore, laws are moved until, say, a new government attempts to rebalance the law in accordance with its views. They do not, however, overturn the law entirely. I see the Retail Leases Act, competition laws and Financial Services Reforms in this category. These ‘progressive’ categories seem to me to often be about consumer protection. Generally, we move towards more consumer protection, until we overbalance and regress the law a certain amount.

Incidentally, case law fits into this category somewhere, where precedent is incrementally progressed until a superior court either confirms or rolls back lower court precedent.

4. Fluctuating

These are laws which can be altered backwards and forwards with much regularity according to public opinion, changing technology or shifts in general societal requirements. I see taxation law and intellectual property law in this category. Constantly shifting, open to review, often subject to Parliamentary inquiry. Essentially, these laws are fluid enough to take into account what people think from time to time, and should reflect their changed opinion, with some time lag.

As I say, I am not sure why I thought up this little framework in a Corps class. I suppose it is because when we are making laws, we should ask ourselves why we are doing so. Are we tampering with a law which is settled and should only be overturned with great care? Are we moving society in a direction it seems to want to go by incremental reform? Or are we rolling back previous incremental change? Should we do either? Are we making law that is reflecting changed opinion, or do we just think we are in touch with that opinion?

A little thought before passing a law probably does a lot of good, beyond just thinking about the political consequences for legislators.

What do people think of my categories? Have I missed something?

I'm Back Now

2006-03-16T00:23:00.000-08:00

Sorry for the light blogging recently, everyone. I’ve been working on an essay on Greek colonial sites and factors to take into account when choosing where to found a colony.

Also, it covers aspects of the Greek city which a traveller from outside the Greek world would notice. It is more interesting than it sounds, I promise.

Anyway, back to normal I guess.

Are you watching the Comm Games?

2006-03-15T01:58:00.000-08:00

I am. Half an hour in, and quite possibly the tackiest event I have ever witnessed. I think I will go to bed.

A boy with a 'duck friend' 'meandering' through Melbourne? Puh-leese.

Although I must admit, having fireworks going off the tops of city buildings was kind of cool.

The Queen looks stoked to be there, just quietly. And I did enjoy the criminal line up (I'M JOKING - NOT DEFAMING) of Ron Walker, Steve Bracks, John Howard, Prince Edward, Prince Phillip and some other whacker. It is always funny seeing how short John Howard really is, and no amount of lusty anthem singing changes that, my friend.

Let me know in the morning if I miss anything fun. On present form, however, even my recorded Corps Law lecture sounds more exciting. I'm off to learn abour separate legal entities.

Yay!

Sony in the Crap Again

2006-03-15T01:02:00.000-08:00

I am writing a tute paper at the same time as these posts, so apologies for the lack of links.

Sony really is in the doldrums lately. Firstly, it lost the Sony –v- Stevens case, the High Court holding that modchipping, or inserting a chip which overrides the piracy protection in a PlayStation console, was not a ‘technical protection measure’ (trust me). People can, basically, modchip away.

Now, they seem to be in a bit of poo for infringing a patent held partly by Nintendo. The patent seems to cover parts of the PlayStation’s controllers. Ouch. They are talking of pulling PS2s off the shelves, as of now. So, if you want one, and haven’t got one, hop to it.

Further, ‘technical hitches’ will delay the release of the PS3, because of problems with their new BluRay technology.

A word of advice? Pack up and go home, fellas. Uncle Microsoft is going to smack you down.

Estate Agents and Legal Advice

2006-03-15T00:55:00.000-08:00

I always get really scared when people try and do their legals on their own, especially when they can be personally liable for doing so. I’m not trying to generate business, believe me, but for the love of God, if you are not a lawyer, DON’T DO YOUR OWN LEGALS.

Don’t buy a will kit at the post office. ESPECIALLY DO NOT write letters to buyers and sellers if you are a real estate agent, explaining the legal import of a contract.

Chances are, most times, you will be right. In the end, law is really not that hard. Mostly, as Seinfeld says, lawyers are just the people who, when you sit down to play Monopoly, have read the top of the box. Every now and then, I see something like this, and think ‘WHY?’

If you are advising people playing Real Monopoly™, please make sure you let somebody who has read the top of the box explain the effect of the contract to your client.

Little Plug for the Day

2006-03-15T00:48:00.000-08:00

We have our first comment that links to the Flinders Law Students’ Society, as far as I am aware, so I thought I would give them a plug. I hope any Flinders students reading get something out of this. If you were just commenting as an excuse to link, well, there you go. You got a plug anyway.

And, of course, my own LSS.

It is always nice to feel you have a relatively cosmopolitan blog, and I have lots of friends in Adelaide especially. The power of the internet, hey…

Accountants Should Wash More

2006-03-14T21:09:00.000-08:00

Apparently, accountants are germier than lawyers.

Well, duh, I say.

Funnier is the suggested reason. Lawyers go out to lunch more often. Accountants, being the poor, desk-bound creatures they are, just wallow in their own filth, eating their lunch at their desks.

Firstly, lawyers out there, when was the last time you went out to lunch? Now, how many times since then have you eaten at your desk?

Secondly, this reminds me of another study I read about which found it is cleaner to eat your lunch in the toilet than at your desk. People at least wash their hands in the toilet, it seems, rather than wiping their gungy bacteria all over keyboards, papers, telephones and the like.

Food for thought, hey.

AWB and conflicts of interest

2006-03-12T02:05:00.000-08:00

I like this.

Firstly, Government MPs are accused of failing to disclose their interests in AWB.

John Howard, of course, rejected these accusations here.

I actually think these kinds of accusations are, in Mr. Downer’s words, drawing a fairly long bow. Where you hold shares in an investment trust or mutual fund, I don’t really think you have a conflict of interest in dealing with that company.

When you directly own voting shares, such as John Cobb, that is a bit different. He seems to have known damn well he was a shareholder and, from the reporting, seems to have owned up and corrected the record very smartly.

These are really tough questions, because these people are paid lots of money and have to park it somewhere. Whether they have conflicts or not, I don’t think it is going to substantially increase the value of their investment, even if they do something a bit dodgy when dealing with the company.

How much can John Cobb possibly have invested in AWB? Even if it were his entire net worth, would it really make that much of a difference if he pushed for them to get a wheat contract somewhere?

Not enough to make it a big deal, I don’t think.

Dinner in Southbank

2006-03-12T01:55:00.000-08:00

I had dinner in a Southbank restaurant last night, and who should be at the table next to me but Jana Pittman.

Just a word of warning, Jana, if you were eating the same crap I was, you aren’t going to run very fast next week.

1000 Hits

2006-03-09T05:25:00.000-08:00

I thought I should point out our first milestone. We have reached 1000 hits! Go us.

I must admit, I hit refresh three or four times to get us there, but don't tell anybody.

I hope people are still finding the content here reasonably interesting, cos I enjoy writing it!

Don't Panic - Dash was Joking!!!

2006-03-07T20:38:00.000-08:00

I thought I should make this explicit – Dash was joking.

I am notoriously bad at jokes, so there you go!

Also, I’ve got my philosophy out there now, haven’t I!

Maybe I should go and have a cup of tea…..

Am I Anti-Growth?

2006-03-07T19:57:00.000-08:00

I have been accused of being anti-growth in this comment by Dash Brannigan:

‘Do you have something against economic growth? Was it mean to you at school? Did it take the jam out of your dough nut[sic]? Just seems that a lot of your posts are very anti-growth. I’m just beginning to wonder if it’s personal…’

He was commenting on my post regarding free public transport.

Apart from being mildly offensive, it shows a complete lack of understanding about, or refusal to accept my philosophical viewpoint, discussed here in relation to IP enforcement. In case those reading don’t get it, I will set it out here very clearly and even put it in bold.

Economic growth in itself is not a useful consideration when deciding whether to implement laws.

Now that is out of the way, I will tell you what I am. I am pro-environment. I am pro-human rights. You may not believe it, but I am pro-intellectual property rights in general and am going to work in a big law firm for clients who require me to think that way. I am even pro-growth, when it occurs incidentally to the implementation of my policy preferences. Growth is great, but it is not the be all and end all. I am anti-big corporations fucking up my world, so in some respect yes, Dash, it is personal. It should be personal to all of us.

I don’t understand why my post about free public transport was anti-growth in any case. I can tell you, if I didn’t have to pay about $40 per week to get myself to work, there would be some bookshops, cafes, bars and clubs that would see some pretty steep economic growth. This brings us, as always, to the question of WHOSE growth we are discussing. It is undeniable that economic growth in the first instance goes to companies and their shareholders, then slowly filters down to the wage slaves. This graphic is a useful example of how companies get richer whilst making workers poorer. When we are discussing pollution and public transport in general, I have to ask whether having oil companies, petrol station owners, refineries and their shareholders getting rich and yes, providing heaps of economic growth is worth the obvious impacts we are having on our world. Am I the only one who noticed Melbourne had a full week of steaming humidity and hours of monsoonal rainfall the other week? Why do you think that is happening all of a sudden? Not because of economic growth in itself, but because of policies which place such growth at the heart of lawmaking. Australia is not part of the Kyoto Protocol for the simple reason that it will hurt our big mining and transport companies. What do I say to that? Jam your economic growth, pals.

In any case, even when the growth does filter down, most of it has been handed out to those who don’t really need it. To counter any charges of hypocrisy, I’m happy to do the legal work for these corporations; I don’t think that disqualifies me from disagreeing with their activities. However, when we contrast free public transport with paid and privatised public transport, we have to ask – who is getting the benefits of economic growth? Further, we never discuss the impact on our environment when thinking about whether growth is good.

If public transport were free, I believe more people would use it. Each of those people are taking advantage of a benefit given by the government to work more, spend more on more frequent trips into the city, save the cost of running their car. Why is it bad that money is in the pockets of every person, rather than Connex and Shell? Call me anti-growth, I call me pro-a better world. Some companies, like Shell, will make their money anyway and contribute something to economic growth. Some, like Connex, will fade into insignificance. That’s just tough. By charging for public transport, Connex encourages us all to drive to work, shop in the city less and generally make it harder for the people who need it the most to travel around. I am not saying this is the fault of Connex, it is there to make its cash. It is the problem of a failed public policy.

I can understand the argument that eventually, economic growth creates a higher standard of living. However, I also read with interest once a study published by The Economist, which asserted that economic growth in the US outpaced European growth by about 1% per year in the period of the study. Productivity growth was way ahead of European pace. However, the study also found that Europeans are happier. Just because you work 60 hours a week and have stunning economic growth doesn’t mean you have a higher standard of living, because that all depends on what you define as a standard of living. For me, 40-50 hours a week, time at home, time to play sport etc sure beats working on Sundays. Further, I am quite happy to have one less TV and a few less meals out to do that.

Sure, I’m idealistic, but there are some of us around. If I have to pay more taxes so that everyone can have free public transport, well, to an extent that is fine. I’m happy to pay $5 a billing cycle extra on my electricity bill to source my energy from renewable sources. If any government consultants or others who have a hand in lawmaking or policymaking are reading, don’t forget that there are plenty out there who are just like me.

The world does not revolve around growth for everybody. Growth is fine, as long as it is not there for its own sake. If there is a policy that results in better human rights or environmental protection but creates zero economic growth, or that puts growth back in the hands of the everyman, well, so be it.

I’ll be happier.

I, My Lords, embody the Law

2006-03-06T23:08:00.000-08:00

Does anybody know of the lines in Iolanthe where the Lord Chancellor talks of the law thusly ‘It has no kind of fault or flaw/ and I, My Lords, embody the Law’?

That was my immediate reaction when I was picking through Burk -v- Cth [2006] VSC 25 , trying to find a reference by Harper J to a single other case. None. Harper J has managed to write 260 paragraphs without needing to refer to precedent for ANYTHING and therefore, in my book, embodies the law. I can’t find a link now, but I remember a case when a South Australian barrister was trying to found an argument on the difference between the South Australian Common Law and Federal Common Law, as if they were a different beast. Either Gummow J or McHugh J pulled him up and said something like ‘What is the Common Law? You are looking at it’.

I know he was dealing with evidence of post-traumatic stress disorder and so was making findings of fact, nevertheless it seems that he could have made reference to something. He really is a wonderful judge.

I will send a Freddo Frog to the first person who can find a case referred to in this judgment.

His Honour the Wuss

2006-03-06T05:00:00.000-08:00

Reading High Court transcripts is one of those things I always mean to do, and really should do more often.

However, there are only two reasons why one would do so. Firstly, to find out what the arguments were in a particular case, and why this may have led to the particular findings. Secondly, because High Court judges are, in fact, bloody funny old people who say some wildly funny stuff.

The first case is easy. If you have the findings, generally you can work backwards to the argument. The second case is dealt with routinely by David Starkoff, who has the wonderful knack of finding out when Kirby J asks what a wuss is, and McHugh tells him ‘It is you when you drink only one glass of beer’. Apparently, that wouldn’t make Mr. Hardhead Kirby fall out of the window.

Or the apparently immortal discussion by Hayne J of the ‘new’ phrase ‘well and truly hammered’.

If you are even a small law geek, they are just too funny to miss.

What Day is it? Offers Day!

2006-03-05T17:18:00.000-08:00

I have officially sold my soul to the world of corporate law: I have accepted a job in a big law firm.

If you are interested, I will even tell you which one. Not on these pages though, that would narrow down my identity to about 40 people. Can't have that, now, can we!

Public Transport and our Greenhouse Problem

2006-03-05T17:07:00.000-08:00

I read today, in my Economist of Jan 14-20, 2006 (p34), that Australia has the highest greenhouse emissions per head of any country in the world.

When you place this fact alongside the idea of free public transport, discussed in Sunday's Age (I'd love to link but paid only), it is hard to come to any conclusion but that public transport in Melbourne should be free, or at least very heavily subsidised.

Joshua Gans has his usual thoughtful and insightful post here, discussing toll roads and the proceeds of use of such roads, which could be used to fund free transport. I'm not au fait with the merits of that particular argument, however there must be a better way than the course we are pursuing.

We see driving our cars to work, play or in between as a right. In this we closely resemble the US, coincidentally, with China, one of the biggest emitters of greenhouse gas. It's not a right, people, it is a privelege. The quicker we work out that we are killing our environment, and that economic growth is not a reason to ignore that fact, the better we will be. Europeans don't see driving as a right. What is the result? Have you ever been on the Parisian underground? People look at you in awe if you mention the fact you are walking to your destination ten minutes away, rather than getting on the amazingly good train network.

Why are we building toll roads to Frankston? Why not run three times as many trains down there, for free?

Whence Do You Arrive?

2006-03-05T05:20:00.000-08:00

I did a really interesting thing today. I looked at my Sitemeter reports (go right to the bottom of the page if you want to see my stats), and discovered you can find out how users reach your blog.

I found that a lot came through Google searches. Which are my most popular posts, reached by Google search?

Funnily enough:

My Sambucks -v- Starbucks trade mark discussion.

My short piece on the conviction recorded against Zara Garde-Wilson, that infamous Melbourne lawyer.

There you have it folks. Good to see what works. I will run with more trade marks and criminal intrigue. Hmmmmm, where exactly does one find criminal intrigue?

Yes, Abortion is Illegal

2006-03-03T15:29:00.000-08:00

We had a bit of a chat recently about whether abortion was illegal.

The Age has a good run down of the legal position. They are looking at decriminalising abortion after the next election, which sounds pretty sensible to me.

It is not often you see the Crimes Act discussed on the front page of the paper!!

Comment Activation

2006-03-02T16:16:00.000-08:00

I've changed my comments policy. I didn't realise I had it set to only allow comments from people registered with Blogger.

It's open to all now, although you will still need to get through word verification (I'm talking to you, Mr. Spambot). So, if you are reading, but not registered with Blogger, feel free to add your comments on anything!

How Do People See You?

2006-03-02T03:59:00.000-08:00

This piece is also interesting. It was written a long time ago and is not legally relevant, but discusses Dick Cheney and the perceptions he created with his dress on the 60th anniversary of the Auschwitz collapse.

These things matter.

Be Grateful

2006-03-02T03:57:00.000-08:00

This short piece is quite interesting. Warren Buffett on gratitude. Why we should be grateful for what we have.

Nothing earth shattering, but relevant enough to make you stop and think nonetheless.

IP redux

2006-03-01T01:28:00.000-08:00

I don’t do this very often, but Dash Brannigan has put me back into my box for the moment.

I hate it when I know I disagree with someone, but can’t quite work out why. That is the art of truly persuasive writing, in my opinion.

Having said that, I still have some issues. We will iron them out, I guess.

Loathsome people

2006-03-01T01:26:00.000-08:00

Awesome stuff. I can’t believe I only just found this, but a lot of it still rings true.

The most loathsome people of 2004.

Number 2, Donald Rumsfeld. Why, you ask? I’ll tell you:

At least Herman Goering knew how to conquer people. Rummy is the richest person in the white house, a former auto and pharmaceutical CEO and the one who nurtured Dick Cheney’s career. So rife with corruption and fascist desire he makes dirt look clean. Carries himself in press conferences like a cranky grandfather who is sick of hearing his daughters whine about how he molested them every now and then.

Funny enough to waste a few minutes reading.

Martial Law law

2006-02-25T22:48:00.000-08:00

We had a small discussion a while ago about the new expedited call-out procedures that are to be made into law in the near future.

For anybody who is still interested, the Parliamentary Library has its discussion paper out here. The Schedule 4 provisions, whereby the ADF can be called out in a sudden emergency by the PM alone or two Ministers together still seems like overkill to me.

Why should we allow two Ministers to authorise the implementation of martial law? If there is a terrorist off to blow up the Lucas Heights reactor, why don’t we send the police?

Stoner Criminal

2006-02-25T22:42:00.000-08:00

Criminals like these are always good for a laugh. How could someone be so messed they try to sell drugs to a cop, sitting in a marked cop car?

Can anybody tell I am catching up on my huge backlog of reading today?

Funny Patents for Today

2006-02-25T22:38:00.000-08:00

On a lighter note than below, the following couple of patents had me in stitches.

This one reminds me of leather bum pants. Heart shaped holes in the top of your trousers.

Also, this one, which is a combination of a breast pump and a vaccum cleaner. What whacko thought of breast pumps and vacuum cleaners in the same sentence? I guess it would make the housework easier. Not for me, though, just more painful than it already is.

ICC and Aid Withdrawal

2006-02-25T22:35:00.000-08:00

I wrote a very interesting essay on Article 98(2) Agreements in International Law last year. Well, interesting for me to write and research, rather than interesting to read.

In any case, you might ask, what is an Art 98(2) Agreement? Essentially, Article 98(2) restricts the jurisdiction of the International Criminal Court, so that where there is an existing agreement between States as to the treatment of their national armed forces accused of war crimes, the Court cannot require extradition of that national. Such extradition is effected by the issue of a Surrender Request to the country of which the accused is a national. The country can then refuse the request under Art 98(2). Put simply, a country is not obliged to act contrary to its existing international obligations, which includes obligations pursuant to treaty.

The problem is, the Article was written to cover Status of Forces Agreements signed before the Court came into existence. Usually, these agreements provide that where a member of the armed forces is accused of criminal behaviour, they are to be brought home and tried in the domestic jurisdiction, or by military tribunals. I am not sure, but think of the Abu Gharib soldiers who were tried in US Courts.

The Article was not intended to allow a State to oust the jurisdiction of the Court in the way the US is now doing. The US is forcing countries to sign agreements that provide that US nationals accused of war crimes will not be handed over to the ICC by the nation signing the agreement. The US threatens a withdrawal of aid and military assistance for countries who refuse to sign.

It is a blunt tool for the US to use and an extreme method of preventing the exposure of US nationals to the ICC. The agreements are actually illegal and invalid at international law, but as we know, the US doesn’t particularly care about international law unless it suits. And now, we have the first manifestation of the implications of this policy. Bolivia will be refused aid, because it had the temerity to tell the US that if an accused war criminal were found on its soil, it would hand the accused over the ICC.

IP and Development

2006-02-25T22:10:00.000-08:00

Following our relatively robust discussions about IP law and development, I found John Lambert’s page a good resource.

He is very hard-working and always has a ton of information available.

I still stand by my assertions of last week. This is too big a problem not to be addressed and the WTO, the EC and national authorities are finally beginning to take the interests of developing countries into account.

Good to see.

Burning Books

2006-02-25T22:06:00.000-08:00

Every now and then I see something which, though not law-related, makes me want to scream so badly I have to post it. Like this.

Why do people get so worked up about religion? Is it worth burning the works of Aeschylus for?

Iraq and Civil War - A Good Thing?

2006-02-25T18:46:00.000-08:00

Always nice to see – the Fox Network asking itself whether all out civil war in I-rak could be a good thing?

On what possible basis?

Is John Anderson an Inside Trader?

2006-02-25T18:24:00.000-08:00

Why is it that whenever I see a story like this one nowadays, I just think, ‘What a load of rubbish’?

Does John Anderson really expect us to believe that, after Alexander Downer was briefed in September about the Volcker Report, he sold his shares in AWB a month later without being told of any ‘adverse’ information?

Just a Little Thank You

2006-02-24T18:36:00.000-08:00

I got my weekly site report this morning and found, to my amazement, I am averaging 10 hits a day. They can't all be me, I'm obsessed with myself but not that much.

So, if you are reading and not letting me know, I hope you are finding the content interesting, informative and stimulating.

If not, well, clearly we is not doing our job.

Cheers

Religious copyright

2006-02-23T01:53:00.000-08:00

Now here is a BIG question. Should the Pope be able to exploit his copyright? Should it matter that he has taken a vow of poverty? Is it even relevant, given that he has assigned his copyrights to the Vatican's publishing house?

Something about Vatican lawyers demanding royalties from the writings of the Pope, even those before he was made Pope, strikes me as a bit on the slimy side.

Google's Noodie Pictures

2006-02-23T01:11:00.000-08:00

Sometimes, it is best to swallow your pride and link to somebody who is, quite simply, better than you at this kind of stuff.

See Kim Weatherall at LawFont on Google's defeat today over displaying copyright images as thumbnails.

Ouch.

Funny of the Day

2006-02-23T00:29:00.000-08:00

Should mention I am willing to get one of these at my second round interview at a major law firm this week?

But I am, I am, I am!!!!

Smelly Trade Marks

2006-02-22T21:45:00.000-08:00

Interesting case decided a little while ago in the EU. Apparently, the smell of strawberries cannot be trade marked, because it cannot be represented graphically. IPWar's points us to the Trade Marks Office manual, which describes section 17 of our Trade Marks Act 1995 (Cth), where a TM is a 'sign' etc. A sign is defined as including scent.

So, as long as you are using the smell of strawberries, or indeed rotting plant material or other such scent as a badge of origin, smells can in Australia be registered on the Trade Mark Register.

An interesting divergence between our law and that of the EU.

The Problems of Perspective

2006-02-20T21:37:00.000-08:00

This post has been updated where indicated

It is amazing to me how often I disagree with one Dash Brannigan, as I do in this little to and fro (my first post, Dash's reply). It occurred to me the other day that probably the reason for this was one of perspective. The Law Thoughts is written by a budding lawyer, who aims to examine, explain and critique law from the perspective of law. As far as I know, under his enigmatic guise, Dash is fairly focused on economics. This presents a diffculty because, from my perspective for example, human rights (yes, including property rights) are at the apex of all law and are universal and inalienable. Their satisfaction should be a primary outcome of lawmaking.

Whilst Dash is not heartless (I recently found cause to call him a smoochie, whatever that may be), he is very focused on economic growth. Dash uses complicated economics and game theory to analyse laws. I don't. We lawyers, when thinking about law, don't find it necessary for laws to be made with growth in mind, whereas Dash seems to see growth as a matter of fundamental importance in lawmaking. That is fine, but we are coming from different perspectives. I believe that laws should be made to obtain a particular outcome, rather than to achieve a state or environment in which that outcome might or might not be provided by the decisions made by individuals or, more likely in case of IP, by corporations.

This is a subtle but important distinction and the example we have been using is illustrative. In terms of protecting the right to health, my position is that laws should be made with health protection in mind, rather than creating a state of economic activity in which it becomes profitable for an entity to provide that protection of their own bat. Call me a socialist, call me a commie, whatever. This is my point about perspective and I think that, whilst we both implicitly understand these assumptions, Dash and I don't ever make them explicit. Discount rates, perfect price discrimination, and other high level economic terms simply do not come into my consideration of what a law should be.

Our theft example is a good one. I see the law from the law's point of view. For me, theft is 'dishonestly appropriat[ing] property belonging to another with the intention of permanently depriving the other of it'. I don't see a failure to enforce IP rights as theft, it is a failure to enforce IP rights. It allows infringment of those rights, but that is not theft. It is best illustrated by those video piracy ads, which say 'Piracy is stealing'. That, unfortunately, is complete rubbish. Piracy is a copyright infringement and subject to economic damages, not a criminal offence as is made out by the media. Small differences, but important. I am the first to admit I am not one to talk about loose use of language and I have been critisised before. However, it is important to see what my perspective is.

Whilst Dash has a go about my assertion that IP companies do not lose anything where people who cannot buy the product 'steal' it, I stand by it. Yes, people derive a benefit from the drug. However, it is the manufacturer making the drug and the government not enforcing the property rights who are the actors here. People do not 'steal' these drugs, the model in fact is governments paying manufacturers to produce, because people are too poor to buy the drug. This is, of course, a theory, because nobody has yet taken out a compulsory licence. ***In any case, I stand by my assertion that where a consumer was not going to buy the product in question, the drug company is not losing profits by governments issuing a compulsory licence and paying some small amount to the drug company. In fact, they are gaining money. Everyone has to remember that there are strict terms and conditions on the issuing of these licences. They don't just happen automatically. One of the conditions under TRIPs is that fair remuneration is paid to the IP holder. The question of 'fair' is the pivotal discussion point.***

In terms of law, Dash's argument about parallel importation is a standard one against allowing developing countries better access to drugs. However, this argument is purely economic and in my opinion has no basis on which to found law. Yes, incentives are created to reimport the drug. Stopping this, however, becomes a matter of criminal and customs law. Why is it not possible to pass laws with tough criminal penalties for those who import drugs on which lower prices have been placed? This is an economic justification for a legal position, which can sometimes cause trouble. The law should have no problem dealing with this kind of argument. In the end, there is a black market in everything and I don't see why the chance of parallel importation is a justification for blocking poorer countries from making drugs. I guess if you want to use words like utility, then it is at least arguable that there is greater utility in allowing people to have access to medicine as there is in maximising profit by strict enforcement of rights. I am not saying I am right or wrong, I am just saying that the media in particular only present one side of the argument. Is it relevant that the media make much of their profit from copyright material?

My further point in response to Dash's post is that, whilst I understand the link between growth and IP protection, there is little examination of the proper balance point. Yes, the US Constitution gives the Congress the power to make laws relating to copyright, but it prohibits perpetual copyright terms. IP is important, yes, but it is only mentioned to give the legislature the power to make laws in respect to copyright. Our own Constitution does the same (s51(xviii)). There has to be a sensible balance in drafting these laws, however. Further, when patents were invented, they were a monopoly right over a whole industry. A throwback to this is why it seems playing cards are all the same design. This does not mean there was explosive growth. It was only when a balance began to be struck between what you call dynamic and static rights (I think) that innovation became connected with such protection.

As another side issue, you are right in terms of FDI going elsewhere when countries don't provide proper legal protection and sound legal institutions. It is interesting that nowadays, least developed countries tend to negotiate at the WTO as a big block, probably for that exact reason.

My point all along is that there must be a balance. IP rights must be protected to SOME extent, but not to every extent. My original post centred upon the question of why Brazil should enforce in its domestic law WTO obligations when more powerful countries were not willing to. However, I understand how these things are interconnected. I don't know the answer to this question, but I always ask people who use economic growth as a reason to enforce IP rigidly:

"Does the greatest economic growth come in the profit flowing to the IP holder due to high drug prices, or the production created when sick people are made well by drugs which have been manufactured contrary to patent rights?"

I don't know the answer, but I sure as hell would like to find out.

Cricket Bats

2006-02-16T14:30:00.000-08:00

Was there any sense of politics in the MCC's decision (the real MCC) to ban Ricky Ponting's cricket bat?

Why should a graphite bat not be allowed? We should go back to the days of wooden tennis rackets.

Maybe they think they can retain the Ashes this way.

RU486 Follow Up

2006-02-16T13:59:00.000-08:00

Further to our discussion yesterday, I almost choked over my brekkie this morning, when I opened up my Herald Sun and found this article. Apparently, Victorian MPs were instrumental in swinging the vote to lift the 'ban' on abortion. This reporting is misleading, innocently at best and downright wilfully at worst.

Firstly, who gives a rat's bum if Victorian MPs voted 3 to 1 in favour? The quote is 'Federal Victorian MPs cleared the way for drug to hit shelves.' Rubbish.

Secondly, the 'ban' on abortion has nothing to do with this drug. In Victoria, abortion is illegal (s65 Crimes Act). So is unlawfully supplying or procuring anything which will cause an abortion (s66 Crimes Act). Therefore, where a drug like RU486 is banned, it is illegal for a doctor to supply it. Where the drug is not banned, it becomes lawful to prescribe it, but the fact of abortion remains illegal. The fact it is almost never prosecuted does not mean it is legal.

The 'ban' is the ban on the importation of a drug. The ban is only a ban because we have a fruitcake Catholic Health Minister. Ministers of any stripe should not be able to make a decision on the safety of a drug, whether they are raging evangelicals or raging small 'l' liberals. These decisions are for competent authorities.

So, what 'Victorian MPs' have done is remove the power of any Minsiter to restrict access to a drug, as long as it is deemed safe and effective in the treatment of abortion. What they have not done is remove the ban on abortion. Given abortion is a crime under State law, and the States have responsibility for crime, Victorian MPs need to be proper Victorian MPs before they can lift any ban on abortion itself.

I really shouldn't read the Herald Sun (or look at the pictures as it were) in the morning, it makes my blood pressure way too high when I get to work.

RU486

2006-02-15T19:49:00.000-08:00

People commentating on the RU486 debate (except me) are missing the point. Much is being made of Peter Costello's forced choice to abort his wife's baby or lose them both, the doctor who had to perform them every day, Lyn Allison who actually had one herself. THIS DEBATE IS NOT ABOUT ABORTION.

From the outset, my position is anti-abortion but pro-choice. I hate the idea of abortion but believe in peoples' right to choose. I am especially upset about situations like this, where rape victims can't get the morning after pill because some pharmacists won't stock it on moral grounds. If we keep this debate going on about abortion, that is what will happen in Australia.

What the debate is really about is WHO gets to choose whether to import the drug. Both sides of Parliament in general are anti-abortion. We all agree. The debate in Parliament centred on how competent the Minister for Health (any one, not just this one) was to make a decision as to the desirability of import of a drug. In the media, all we get is ABORTION! ABORTION! Sides of the debate, for convenience, I will call side 1 and side 2.

Side 1 says that abortion is bad but the best way for women to be treated safely is to let the Theraputic Drugs Administration choose whether drugs are safe for use. If we leave the decisions in their hands, then the drug will be imported only when competent authorities choose to allow it.

Side 2 says that abortion is bad and therefore the best way to make sure only safe drugs are used is by making the Minister tell Parliament when he or she decides to import a drug.

Everybody is going on and on about how bad abortion is, but I REPEAT, this is the wrongdebate. The Bill is not about whether we are for or against abortion, it is whether the best way to ensure safe treatment with new drugs is by letting an unaccountable but theoretically independent and competent body make import decisions, or whether to make those decisions subject to the more intense Parliamentary scrutiny.

Brazil and the WTO again

2006-02-15T19:14:00.000-08:00

Promote the Progress has a very interesting post on Brazil's IP policy here. J. Matthew Buchanan, always insightful, discusses the distinction between a country enforcing IP rights positively in foregin policy and Brazil, which is threatening to ignore IP rights, or use them negatively, as it were.

People have a go at developing countries for ignoring IP rights, but there is a very good reason they do so. After a recent decision against the US, in which the WTO found their cotton subsidies illegal, the US for a time refused to comply. If you were Brazil, wouldn't you be asking yourself why you should comply with your WTO obligations when others were not?

What connection, then, does this refusal on the part of the United States have with IP? The ability to IGNORE positive rights is one of the only weapons that developing countries have. Whereas a country like the US uses ENFORCEMENT as a weapon and negotiation tool, developing countries of course do not, because US corporations have lots of IP and Brazilian ones do not. They instead use non-compliance as that negotiating weapon.

People seem to think that ignoring the rules is more reprehensible when a developing country does it. Usually they threaten on drug patents and those sorts of public health issues, and usually for good reason as well as there being some political grandstanding. However, it is just as bad for the US to whinge about a failure to enforce obligations when it refuses to comply with its own. Why shouldn't a developing country use every weapon it has, when developed countries won't respect the rules either?

Three interesting questions

2006-02-15T01:09:00.000-08:00

These are completely unrelated, but food for thought nonetheless:

1. Should the man Dick Cheney shot subsequently die, what should happen to Dick Cheney? The guy had a heart attack today and is apparently recovering. Is it relevant that Cheney didn't have a permit? If it happened in Victoria, could he/should he be prosecuted for reckless murder? Would he be prosecuted at all?

2. What should happen to the rogue Chaser writer who sent Leunig's cartoon to the Iranian paper? Is he just so stupid he should be sacked? Should he be prosecuted for something? Or my favourite - could Leunig bring an action for copyright infringement?

3. Politically not legally - what the hell is John Howard doing sending letters to the Iraqi government pleading with them to 'think of individual Australian wheat farmers' who have lost business because of the Iraqis' decision to stop importing wheat. Do you think he will get a letter back? How about - 'piss off you moron, think of individual Iraqis who are having their legs blown off (1) by your allies and (2) by people who hate you so much they are willing to blow up all sorts of stuff so they make you look bad'. Or - 'think of the individual Iraqis who were tortured by the regime your individual wheat farmers funded illegally'.

That's what I would say, anyway.

Bali Death Penalties

2006-02-15T01:04:00.000-08:00

With all the rara about the Bali Nine, I found myself having a strange reaction reading the paper today.

I just don't care.

I'm not sure whether I am busy, or tired, or what, but I can't be bothered even getting indignant or upset about the fact these people are going to be executed.

The death penalty is unacceptable in all cases and it is so sad that people are stupid enough to try their hand at these things in countries which are never going to let them escape.

Ask those two blokes - 'is the money really worth it'?

However, the way the media blows these things up periodically leads to a feeling of vengeance and righteousness in those who want them shot, and despair for those fighting to defend peoples' right not to be executed. On this one, I am just not interested.

Maybe He Was a Terrorist

2006-02-12T16:14:00.000-08:00

Dick Cheney shoots a man he was hunting with.

What a tool.

And to think he has his fingers wrapped around much bigger triggers than his little shot gun.

Complementarity and the ICC

2006-02-11T18:58:00.000-08:00

'Complemenarity' is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute. Hence the term 'complemenatarity', which makes the ICC a Court of last resort. Where a national of, say Sudan, is accused, then the ICC will only have jurisdiction over the crime where there is an unwillingness or incompetence of Sudanese judicial institutions to prosecute. The reason this principle came into existence was the fear on the part of many prospective States party that the ICC would become a supra-national criminal court and would result in countries losing domestic control of criminal prosecutions.

There are Sudanese nationals who have been accused of war crimes over the recent alleged genocides which occurred there. There was no possibility that these crimes could be prosecuted domestically until only recently. Now, judicial institutions have been set up to try those accused of war crimes. Opinio Juris has a good potted commentary and link.

My philosophical objection to this principle is that the countries in which war crimes are committed are exactly those which require a court like the ICC. For example, there is little chance that a French national will be accused of war crimes, but if they were, I would expect French judicial processes were sufficient to prosecute a war criminal.

However, countries like Sudan set up kangaroo courts which are designed so that the government does not have to hand over its officials to the ICC. So, exactly those who the ICC is most required to punish are those who avoid the court's jurisdiction by having fake trials.

The best illustration of this is a hypothetical example. If John Howard were accused of war crimes, it is unlikely that DFAT would hand him over to the ICC. This is because Australia has sufficient and suitable processes by which Howard would be prosecuted. However, countries like Sudan, with no judicial oversight, have no chance of dispensing the correct justice where somebody is convicted of war crimes. Indeed, it is difficult for those processes to even obtain a conviction.

In my view, the job of the ICC is to be that supranational institution. No country should 'have a choice' whether criminals should be prosecuted. Indeed, the principle of complementarity allows a shield to be placed in front of those accused of the gravest crimes against humanity, by allowing their governments (of which they are usually officials or friends) to 'prosecute' them for their alleged offences.

How Did This One Pass Me By?

2006-02-06T21:10:00.000-08:00

This case must have had them rolling in the aisles.

According to the report, a man's ex-lover invited him over to 'rekindle the relationship', waited until he was asleep, then glued his penis to his stomach, his testicle to his leg and his bum cheeks together. Then when he woke up he found himself drenched in nail polish.

She was convicted of assault, but her defence was that it was all part of the normal, and agreed, sexual activity between the parties.

The money quote:

"Slaby said his injuries included severe burning on parts of his body, impingement of normal bodily functions and discoloration of his hair."

Deary me.

British Library and Online Rare Works

2006-02-06T18:32:00.000-08:00

For book lovers: this is uber cool (with a capital UB).

The British Library has developed flash technology which allows one to virtually turn pages of some of the rarest books known to man.

Well worth a peek at the future of reading.

Contract Drafting

2006-02-06T18:23:00.000-08:00

For all you lucky people who don't need to draft contracts, look away now. For those who do, this little post is a great resource.

Let's all be good concise lawyers. That way we will all know what each other means.

And, for the love of God, DON'T use 'reasonable' in a contract!!! There is no 'man on the Clapham omnibus' (although I did, on a trip to London once, take a photo of said bus amongst gales of laughter with my girlfriend.)

Or is that not the point?

Internet Law Subject Page

2006-02-05T14:15:00.000-08:00

This link is a gem.

Kim Weatherall taught Internet Law last semester, a subject which I could not take. However, her 'Useful Links' page is worth a look, as it contains a lot more than just links.

The set out of commentary and links on each issue considered in the course is extensive and a great beginning point for anybody studying internet issues.