November 29, 2005

Bikes and Morons

Posted in Uncategorized at 9:27 am by thelawthoughts

I have blogged previously and also here about bike riders in the central city. Today, it happened again. As I was walking out to get on the tram, a moron on a bike rode straight through the group who were getting on. It happened yesterday also.

Bikes, for the purposes of road rules, are motor vehicles. Therefore, they must obey road rules, such as not travelling on the footpath. More importantly, when tram doors open and people step out to get on, BIKES MUST STOP.

Bikes don’t go fast. However, they are able to knock people down, which can and does cause injury. So many people simply do not know or understand road rules. Ignorance is bliss, I suppose.

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November 24, 2005

Anti-Discrimination Exemptions

Posted in Uncategorized at 10:15 am by thelawthoughts

Given the upswing in female only gyms, it was only a matter of time before men began to find themselves able to use facilities to the exclusion of women. In this VCAT decision, the Greater Shepparton Council was granted an exemption under the Equal Opportunity Act to exclude women from the ‘Aquamoves’ class outside normal public hours. The class, which I assume is aqua aerobics, will only be available to men, at the same fee as normal users of the facility.

I am a bit hum-ha about these kinds of exemptions. McKenzie DP, in her reasons, pointed out that the poor body image of some men, or the religious belief which restricts semi-naked public appearances, were good reasons to give this exemption. The underlying policy seemed to be the encouragement of male exercise.

I have this argument with my dad all the time. He won’t go to the gym to exercise, because he thinks all the big tough he-men will look at him funny because he is overweight. Crap, I say. Get in there and be active. Why should anybody feel like they can’t exercise without feeling intimidated, especially in a community centre like, say, the local YMCA?

I can understand the need to encourage people to exercise. In some cases, positive discrimination is a good idea, to discriminate to achieve a certain [good] outcome, rather than prevent discrimination to prevent a bad outcome. Still, and I don’t know why, I can’t reconcile myself with segregated exercise, whether based on sex, race, religious beliefs, weight levels or anything else.

November 23, 2005

Applicant 226/2003

Posted in Uncategorized at 7:32 pm by thelawthoughts

I will stop banging on about this, but now that I know to look for unrepresented clients, such as in this case, my question changes from ‘why are lawyers bringing these stupid appeals’ to ‘why are they letting people self-represent and argue about Constitutional writs?’

Now, I must say I did ok in Con & Admin. I had a fail for the first 50pc of the course and ended up with a 67. By my reckoning, that is a bloody good exam. I am ok at writs.

However, I wouldn’t dream of trying to convince Conti J that such a writ should/not be granted in open court. So, we have to ask why this is happening. My answer is because people have to. We have reduced the ability of persecuted people to stay in the country to their ability to argue about principles of law which hark back to the dark ages of the Common Law in front of a Federal Court judge with too much to do and not enough ability to tweak the interpretation of the law in favour of an applicant.

Poor everyone. What a giant waste of time and resources, as well as emotion and heartache.

Lie WIth Dogs…Get up with Mokbels?

Posted in Uncategorized at 4:53 pm by thelawthoughts

Poor old Zara Garde-Wilson. She was sentenced today, but Harper J only recorded the conviction and did not send her off with her friends, well, the alive ones anyway, to the Big House.

Harper J, in recording the sentence, noted how severe was her fear and how she took all the reasonable steps, including the obtaining of advice, before she refused to answer questions.

I can understand. If I were in her situation, I would need a change of shorts.

Blogging as an (academic) health hazard – and go MobBlogs

Posted in Uncategorized at 3:14 pm by thelawthoughts

Also, our regular Dash Brannigan comments as follows:

“”I would have to disagree with you on lack of understanding thing. I would imagine that ANY academic would be more than familiar with use of the web and email. So I don’t think it’s technology getting in the way.

Also I have no doubt that academics realize how amazing blogs can be. It would be like a Symposium (or Symposia not sure) every week. Ideas are supposed to be their currency the better they flow they happier they should be. I think the issue is like the article said, the threat to careers. Not only from within academia but from without.

You have academics moving into other job area (i.e. Law Professors becoming Judges, Economics Professors becoming Fed Chairs). When being considered for roles like this every thing you have written is scrutinized. Isn’t Posner is still suffering form something he wrote back in the 70’s?

It seems to be one of those things that sometimes objective academic inquiry is not really fit for public consumption. Just take some of Gary Becker’s work or Stephen Levitt’s (for the record both from Uni of Chicago). To me, their work seems rational and coherent, other people from outside the field see it as racist, misogynistic or just plain cold.””

I have replied in the comments section to that post. However, just for the front page, I do want to signal my utter delight at the Mob Blog phenomenon, where groups of academics in a certain area come together to argue over a specific issue at a specific time, then seemingly dissolve. Copyrighty people did it a while back when they were waiting for the Grokster decision, but off the top of my head current examples include the real deal, Randy Picker’s ‘MobBlog’ and ‘A Grotian Moment‘, which is the who’s who of international criminal law debating in a Yes/No format legal questions and issues surrounding the Saddam Hussein trial.

For anybody who is interested, a Grotian moment is one so momentous it alters the course of international law. You know, Hugo Grotius. Anyone??

Migration cases continued

Posted in Uncategorized at 3:12 pm by thelawthoughts

It is always nice to get a good, chunky comment and I try to post them as much as I can so that people can really see what is happening. This is apart from the fact that there is no harm in drawing upon the considerably greater wisdom of others than my own. Therefore, QM says, in relation to our migration-idea:

””Migration is not my thing, but appeals and so on can be lodged by the party on his or her own behalf and prepared with the assistance of just about anyone. I suspect that this case was lodged in the name of the party. In this case, the decision indicates that the original appeal was a kind of “class action” which dealt with one issue common to a whole bunch of cases. In such a case, I would imagine that a refugee organisation or legal aid or similar were running the primary case and encouraged any other cases with similar facts to piggy back on their appeal (there would be little duplication of work, as only one common issue was argued). However when the appeal was successful and the appellants’ cases were remitted to the Federal Court, they would have been heard separately.

However I agree with your point that the legislation is hopelessly narrow. The quagmire of refugee cases is largely as a result of the fact that the prospects for appeals on the facts are extremely limited, which is why we end up with a stream of people arguing technical legal issues, when their most potent argument is on the facts.””

November 22, 2005

The Things One Notices Once One Has Been Told

Posted in Uncategorized at 8:40 pm by thelawthoughts

I would never have noticed the following phenomenon if my Copyright, Patent etc lecturer had not mentioned it.

When companies get into drug patent, or indeed lots of other patent cases, a common thread emerges. There are umpteen competing witnesses on each side, arguing exactly the opposite in agreement with their colleagues on their side, but acting as if the other ‘experts’ are complete whackers.

Then, the contents bit of the judgment, as in Pfizer v Eli Lilly, reads like my patent law notes. In other words, they argue everything. The case moves from claim construction, to infringement, to each threshold step of patent validity. First they argue no fair basis for the claim, then they argue a lack of inventive step etc. Further, just about every case I studied this semester is in the ‘Cases Cited’ list. Quite amazing. Surely the validity of a patent is arguable only on a couple of points, not the entire textbook, or every requirement the Patents Act 1990 places upon the claim.

Apologies for non-IP people, but it always strikes me as funny when something like that happens. A little knowledge, I guess, is a dangerous thing.

My Not My Real Nameness

Posted in Uncategorized at 5:06 pm by thelawthoughts

I didn’t want to say I told you so, but, well I told you so.

Blogging in your own name, especially with Articles interviews (fingers crossed anyway) coming up, is probably not so bright.

Nobody gives you much credit for blogging, then again, it can seemingly hurt your chances when you go for that big job.

Makes you think, hey…

Hat tip – Legal Theory Blog

Applicant S231/2003 -v- RRT

Posted in Uncategorized at 1:11 pm by thelawthoughts

Why do lawyers keep butting their heads against the wall by bringing cases like this?

The fact that this case is entitled Applicant 231/2003 means, in Registry jargon, they were the 231st unnameable applicant (privacy etc) in the year 2003. My guess is there were many more.

Each one brings similar arguments. The Refugee Review Tribunal did not consider the evidence. Did not have jurisdiction to make the finding it made. Did not make the proper decision required by the Migration Act.

Wake up guys. The High Court is not granting your clients certiorari, which for beginners is an order rendering void an administrative order made by a statutory body such as the RRT. They are not finding there was no jurisdiction, because there clearly is.

It might be an interesting research paper to examine how many of these Federal Court cases, which have been sent down there by the High Court, actually have these quashing orders granted. Not very many, would be my guess, because the statute is narrow, well defined and very very clear as to who can and cannot be allowed to stay in this country.

Further, none of these applicants can bring sufficient evidence to substantiate their claims. Why not? Usually because their evidence is oral, ie ‘The Government tortured my family’. The Court says ‘you look dodgy and you are probably a terrorist, so we are not going to believe your evidence’. They aren’t quite that bad, but you get the gist.

What do we expect from these people? Statutory Declarations from their persecutors? “Yes” they would say “we tied up his mother with duct tape, you really should let him in”.

My point is that advocates are not winning the battle based on the law as it stands and how the Courts wish to apply it. The better path is changing the laws.

If nothing else, it will save the poor Fed Court judges from hearing hundreds of stupid and usually baseless claims for judicial review of administrative decisions.

UPDATE: Quantum Meruit quite rightly points out the lack of appearance on behalf of the applicant in the abovementioned case. You will see in my comment in response a request for further enlightenment. How is the system falling down? Where are the appeals coming from, the applicant themselves, law firms or more grassroots, NGO type organisations? It is hugely interesting, because if not lawyers and law firms, then people are actually exercising their review rights. However, I am unsure whether these people are actually filing the appeal documents, which require at least a bit of legalese, themselves.

Once we have the Migration Act repealed and replaced with something a bit more workable, Sackville J can go back to writing great one liners in IP judgments for me to quote in exams. He is a guru.

Thanks again to QM for (1) pointing out a very obvious mistake on my part and (2) stirring up a bit more discussion.

60 years since Nuremberg

Posted in Uncategorized at 1:06 pm by thelawthoughts

I so often link to Opinio Juris that I really should get off my backside and put them in the blogroll.

Until then, I want to post in full Roger Alford’s post of today, marking 60 years since Robert Jackson stood at the Bar and opened the Nuremberg prosecutions.

Roger says:

“”Professor John Barrett at St. John’s has reminded me that sixty years ago today Justice Robert Jackson, Chief Counsel for the United States, appeared before the Nuremberg Military Tribunal and made his opening statement. Jackson’s speech is one of the greatest in the modern era of international law.

The opening statement began as follows:

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason….

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”

Then in the closing paragraphs Jackson summarizes what is at stake in these trials:

“The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law.”

The full text of the speech is here. More on the Nuremberg Trials is available through Yale Law School’s Avalon Project here.””

Why do we keep forgetting the stuff wiser people, with much more experience than us, have said in the past? Why do we keep making the same mistakes???

November 19, 2005

The NSWSC shows its common sense

Posted in Uncategorized at 2:10 pm by thelawthoughts

I always love reading Einstein J, because you can always say ‘well, he’s not called Einstein for nothing’. This one is strictly for law students or lawyers (I am going to post most of a judgement, so non-techies feel free to not read on…)

This case deals with the third runway at Botany Bay, Sydney Airport. It is being heard in the NSWSC and deals with problems arising in the construction of the new runway. The catchwords read:

Courts -Responsibility of Court to remind parties that common sense can sometimes lead to a negotiated accommodation.

The headnote reads:

DECISION:
Direction to legal advisers to communicate observations of court to chief executives of parties

In any case, here goes with the judgement. Go on, it’s only 6 paras:

”’Overview of the Present Position

10 These observations are made from a courtroom with hundreds of volumes of documentary evidence lining the walls. We are presently at the end of the 20th hearing day. The transcript currently extends to across 1500 pages. The outline overview submissions extend to approximately 450 pages. There are nine counsel briefed, eight of whom are regularly at the bar table every day. The amounts and matters at stake are of high moment, including a dispute over legal obligations to remediate the problems encountered at a major piece of infrastructure, namely the third or parallel runway at Sydney airport.

11 The Court is well aware that the parties will from time to time have given close consideration to their respective positions and by now may well have determined that the proceedings must continue to curial determination. Nonetheless, in my view common sense suggests that even at this stage the parties revisit the prospects of settlement. The amount of time likely to be taken in the ultimate determination of the parties’ rights at first instance and on appeal should be closely considered. The panorama of legal and factual issues falling for determination plainly bespeaks the need for a calm re-assessment of the current path being pursued. Likewise, the huge legal costs as well as the cost to the parties of the continuing involvement of officers and staff bespeaks a need to revisit the parties’ current positions.

12 In that environment I have come to the view that it is now appropriate to direct the legal advisers to each party to communicate these observations to their respective clients and in particular to the chief executive of each party. The Court so directs.

13 Nothing in these observations should be taken as suggesting that the Court has reached any decision on any issue. The decision will be reached after the taking of all evidence and after the parties have been heard in final submissions.

14 At times such as the present the Court has a responsibility to remind the parties that common sense can sometimes see a result by way of a negotiated accommodation as opposed to the parties taking the risks always associated with litigation of any order, let alone litigation of the present scale.

Direction

15 I direct that the legal advisers to the respective parties communicate those observations to their respective clients and in particular to the chief executive of each party. ”’

I Love Queensland

Posted in Uncategorized at 1:22 pm by thelawthoughts

You just have to keep up to date with Queensland cases. They are much funnier than Victorian ones. This one for example, Candy -v- Thompson.

How often, may I ask, would a Victorian go to the Court of Appeal (yes, that is one below Canberra) to argue that the (I think) single red kangaroo the wildlife officers took from your property constituted trespass? The kangaroo was called Mitchell, and was taken as a joey from the pouch of its dead mother by the appellant. It was raised as a pet. The trespass allegedly occurred because the kangaroo was the property of the appellant (despite the rescue, debateable at best’).

The wildlife officers removed the kangaroo because it the appellant’s ‘rescue permit’ (yes, apparently these exist in Queensland) had expired and the kangaroo had to be removed to the care of a qualified person, presumably a zoo or similar.

Fine so far. However, the appellant claimed $1.5 MILLION for distress and damage caused by the removal of the kangaroo. Where, exactly, would one lose $1.5 million? The distress caused by losing a pet, especially one you have rescued, must be immense. However, $1.5 mil seems a bit of a stretch.

And to claim $1.5 mil as part of a trepass action seems a bit rich also. Yes, this man has lost his pet. However, that’s a lot of candy for Mr. Candy.

The Kazaa Case

Posted in Uncategorized at 1:12 pm by thelawthoughts

Methinks Wilcox J may have made a godawful mess of the Kazaa case, Universal Music Australia Pty. Ltd. -v- Sharman License Holdings Limited, the latest instalment of which is here. Basically, instead of slapping Kazaa down by finding it illegal, Wilcox J held that Sharman must MAKE it legal, or face such a Slapping Down.

However, the policy of a court not interfering in an ongoing basis seems to have been ignored by Wilcox. Now, they are arguing every five minutes about what documents can be disclosed, what bank details and trust arrangements are around and other like tangles.

What, exactly, was the point? Better to save everyone’s time and declare illegality, then move on. If Sharman want to come up with a legal product, let them do it. But don’t make the Fed Court sift through this enourmous amount of crap to get there.

What is Going on Here?

Posted in Uncategorized at 1:00 pm by thelawthoughts

I am not really up with the workings of the Refugee Review Tribunal, which reviews migration decisions. These decisions are then appealed to the Federal Court, which is where QAAT of 2003 -v- MIMIA [2005] FCA 1659 ended up.

Now, the decisions of the Tribunal itself are what they are. The legislation is so tight and narrow that it is difficult for any decision other than ‘sorry, go home’ to be made. However, when reading these cases, one thing really strikes me. The applicants are almost never at the review hearing. In fact, although I haven’t read many of these cases, I have never heard of an applicant being present at the review. Generally, this seems to be why the cases are appealed up to the Federal Court. If I were an FC judge and this kept happening, it would, quite frankly, give me the shits. The relevant paragraph of Sipois J’s judgement, [14], reads:

‘On 18 June 2003, the applicants lodged an application for review of the delegate’s decision. On 8 August 2003, the Tribunal wrote to the first applicant and invited her to attend at a hearing. The letter stated:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

…’

15 The first applicant did not accept the Tribunal’s invitation to attend the hearing. However, the first applicant provided the Tribunal with a supplementary statement dated 23 August 2003; and an extract from Time magazine about members of the Taliban and al-Qaeda entering Bangladesh, and a news report about violence against women in Bangladesh.’

My question is: what the hell is happening? Why is it that people don’t appear to make oral submissions at the review hearing? My immediate reaction is that (1) they can’t get there, because of public transport issues or similar, or (2) are too scared to appear and cannot contribute when they do because of a lack of language skills, or (3) don’t know about their rights in the hearing.

If (1), there is probably not much the legal system can do. However, if (2), THAT is why we have ADVOCATES. I wouldn’t want to represent myself at an RRT hearing any more than in a Supreme Court civil action. Is it that we don’t have enough refugee advocates to deal with the huge number of cases caused by our government’s overly restrictive legislation?

If (3), then this is the biggest failing in our legal system. Too often, whether people are refugees, homeless, criminal, victims of rape or domestic violence or whatever, our system is not giving these people a voice. If we have members of the community, arguing over their ability to stay in the country, it is the job of the legal system and its members to MAKE people aware of their rights. It is our job to REPRESENT such people. Otherwise, what is the point in having a legal system which has no option but to uphold the lower decision because it cannot get people involved to attend and provide some evidence of their circumstances which would allow the RRT or even the Federal Court to overturn some of these Visa decisions.

It makes me sad.

If Not Newsworthy…

Posted in Uncategorized at 12:48 pm by thelawthoughts

Then at least worth a link. The second paragraph of judgement in Visy Paper Pty. Ltd. -v- ACCC [2005] FCAFC 236, decided 17 Nov, reads:

‘Regrettably, the third member of the Full Court, Hill J, died following the hearing of the appeal. The parties have consented to the remaining members of the Full Court determining the appeal pursuant to s 14(3) of the Federal Court of Australia Act 1976 (Cth).’

Necessary, indeed, but possibly subtelty is not the strong point of Stone and Allsop JJs. ‘Yeah, remember that other guy up hear when you were arguing? Yeah, he’s dead. Anyways, people, the show must go on!’

Sorry, I thought it was funny.

November 16, 2005

Thank Goodness

Posted in Uncategorized at 2:17 pm by thelawthoughts

Exams are over, and I am now provisionally the holder of a Commerce degree, subject to my failing today’s exam. Don’t laugh, it is entirely possible.

Now that I have no law subjects to chew on, this is about the only place to get my law fix. Strap yourself in…

By the way, not sure if anyone is interested, but Simon Evans, who doesn’t post every day or indeed every week, has posted his Austlii feeds for recent HCA, FFC and FCA decisions.

When he does post, by god is it worth the wait!!!

November 14, 2005

The Thought Police Part 2

Posted in Uncategorized at 6:29 pm by thelawthoughts

I am going to respond to the two comments to my previous post on the main page. They were as follows:

  1. Or you can give yourself a pen name and use the anonymity of the internet to vent and rant out there opinions. Not that they can’t find out who you are, you just have to make it hard enough for them not to bother.
  2. Following on from Dash, have you seen Reporters without Borders’ “Handbook for Bloggers and Cyber-dissidents”?

    http://www.rsf.org/rubrique.php3?id_rubrique=542

    Loads of information on how to blog anonymously. And produced with the support of the French Foreign Ministry, of all things.

Firstly, yes you can give yourself a pen name and the internet is a relatively anonymous medium if you choose it to be. The handbook is wonderful for people who must publish their opinions anonymously. Funny how not only me, but my two commentors both have such pen names.

However, I want to make a distinction between those who must blog anonymously and those who choose to blog anonymously. Currently, we are all choosers, because we live in a society which does not prevent us from blogging under our own names if we choose.

However, what happens when we publish opinions under our own names publicly? Kim Weatherall has an interesting take on this here. Kim points out that, as an ARC fundee, her funding is vulnerable to a government which objects to her opinion. This is where my distinction is most drawn out. Academics, for example, who write under their own names for whatever reason, should have the freedom to choose whether they can blog publicly. We risk moving from this choice to a society where people must blog anonymously to protect, for example, their government supplied research funding.

Herein lies the problem with our shift away from free speech. When I chose to blog under an assumed name, it was because the word on the street was that it could hurt your career, academic or commercial. In the days of Googling yourself, not everybody wants Mallesons to search their name, because they might want to protect their views, which might be incompatible with the corporate world they are looking to enter.

In any case, my point is that we should not have to choose whether to be anonymous. The whole potential of blogging is that it allows academics and others to publish their views in accordance with their free speech rights. Now that our government is tightening up the rules about when we have such rights and given the government is the sole arbiter of the parameters of free speech, we risk that kind of executive interference from which all free societies should indeed be free.

November 13, 2005

1984? No siree, 2005

Posted in Uncategorized at 11:03 pm by thelawthoughts

Mark my words. This story will be the kind of crap we are going to have to deal with in Australia. The Thought Police.

This woman was arrested on suspicion of ‘having wanted to blow herself up in a series of suicide bombings in Jordan’. Probably, under our new sedition laws, this is the kind of arrest that can be made.

‘Sorry, Sir, you are under arrest. You wanted to see a Republic instituted in this country’.

I am aware that this arrest did not occur in Australia. However, it is a harbinger of the times to come. Soon, opinions and thoughts are going to count for heaps more than they used to. Be warned.

NOW, this woman was PROBABLY going to blow herself up. However, it is difficult to sustain an argument that someone should be arrested because of what they want to do. Attempted to do is different. If she got caught walking towards her local pub (I know, I know) with her finger on the trigger, that is an indictable offence. Attempted murder.

Why do we need these new laws? We already have well defined crimes which cover all these offences. Are we going to start prosecuting people for wanting to drive their car right up the bum of the one in front, because that person has been driving at 30 kms on the freeway?

Of course not. However, I can see Australia moving in the same way. Be careful of your opinion, or anything that you might WANT to do. Make sure you only think good thoughts, because the camera in the corner is watching you, my friend.

November 11, 2005

Today’s Copyright Exam Lesson – Get Out There

Posted in Uncategorized at 7:24 pm by thelawthoughts

Oh, and by the way, today’s Copyright exam included a question about a blogger who posted, along with commentary, a sound clip, which was, as I argued, the property of the journo recording it, or the radio station employing her.

In any case, my point is that the more you get out in the real world, the more you read and take an interest in what is going on around you, the better you do in exams. My bet is that lots of people got thrown. I get blank looks from lots of friends when I talk about blogs – even the very world wise ones.

Thanks for the question, I loved it.

In Trade or Commerce?

Posted in Uncategorized at 7:20 pm by thelawthoughts

It is great to see other law students getting into the blogging act. See Follow My Rules. Just between you and me and the fence post – this blog is deep, perceptive and accurate. If you are looking for any of those things here, best you hop on over there for a bit. I try, but I can’t compete!

Just one little quote, re politicians, “They’re a pack of section 52s” – cue for all lawyers to roll around in hysterics.

If you don’t get it, don’t worry, you’re just obviously not a lawyer.

November 9, 2005

Virtual plague

Posted in Uncategorized at 5:54 pm by thelawthoughts

I find this mildly hilarious.

It seems that a monster in Warcraft (the online game) was infected with plague by the creators of the game. When you sliced open the creature in gameplay, it spewed out ‘Corrupted Blood’ which infected your character.

It seems the plague spread through the virtual world through a virtual character’s pet. Now, whether this was a deliberate ‘virtual bioterrorism incident’ or just accidental spread of the plague, two things spring to my mind:

  1. At what point will the law need to regulate virtual universes? I remember virtual land being sold for $20,000 odd a while back. At what point will contract law, property law and, say, family law need to step in to regulate these transactions? If I buy a block of virtual real estate to house a character in the main street of a cool town, does my wife/husband/girlfriend/boyfriend/de-facto obtain any property rights in settlement of divorce or separation proceedings? Or, when we are selling this virtual real estate after a virtual housing boom, will we need to draw up a section 32 statement and ring VicRoads, to check if any virtual roads have been planned through the site? This sounds pretty damn silly, but I can see it happening…
  2. What can we learn in terms of real life applications from such ‘virtual’ incidents? I know we use flight simulators and that sort of stuff, but what could FEMA have learnt from a virtual hurricane, for example? Can we create these virtual disasters to test our response mechanisms in the case of natural disasters such as Katrina, or terror attacks? The Beeb article talks about dead characters in the streets, surely we could recreate, say, the London bombings and work out virtual responses, if only to test their applicability in a real world scenario. I am not great with computers, so not sure of the feasibility of this, but it could be quite interesting…
  3. Sorry, three things. Let’s say this was actually programmed to happen by a Warcraft user. (a) Is this ‘virtual bioterrorism’? I would say yes. (b) Supposing people need to pay to use a service like this, is this (i) vandalism or (ii) some criminal act? I know Warcraft characters revive when they die, but what if you had to pay $20 each time the character died? Sounds like real world property damage to me…

As I said, these scenarios seem absolutely ridiculous. But I am interested to hear what people think about regulation of a virtual environment. Maybe someone should write a paper, I know I haven’t got time to!!!

Those Arrests

Posted in Uncategorized at 4:03 pm by thelawthoughts

It seems that the arrests made in Melbourne and Sydney (no link, but it’s all over the place) were made under the existing provisions of the anti-terror laws operating in this country.

What better evidence is there than this that the laws in existence are perfectly adequate in achieving the goal of preventing terror attacks? Guilty or not, these people were arrested perfectly legitimately under existing provisions.

Why, therefore, do we need to go nuts and add to such provisions??

November 8, 2005

That Didn’t Take Long

Posted in Uncategorized at 12:07 pm by thelawthoughts

Luckily, we have narrowly avoided CATASTROPHE!! Yay!

I am sure our police services are just using the powers given to them in a balanced and fair way.

They better be, that’s all I have to say.

I expect there to be at least 10 or 12 prosecutions, given how these laws were passed because of ‘credible intelligence’ that an attack was imminent. Therefore, the AFP must have very good evidence of the fact these people were planning a terrorist attack.

Given the Federal DPP needs no longer to prove planning for any specific terrorist attack, just A terrorist attack, they better get their bums moving and get some prosecutions happening.

Otherwise, I am going to be pretty pissed off.

November 6, 2005

Why are we all missing the point?

Posted in Uncategorized at 2:42 pm by thelawthoughts

I am listening to the cricket (YES I AM working as well!!) and, on the ABC, an ad was run for a talkback program later in the week. I was struck at the end of this ad how advocates of these terror laws are (1) completely missing the point or (2) are wilfully misleading the entire country.

Alastair Nicholson was quoted as saying something like ‘If I were a judge faced with the new [anti-terror] laws [I assume he means an application for a control order], I would need to examine my conscience very closely before deciding whether to have anything to do with it’.

My reading of that is that he would probably, as a judge sitting in an application for a control order, decide not even to hear the application.

Then, some Liberal backbencher came on and said something like ‘London happened. Bali happened. Don’t let anyone kid themselves that it can’t happen here’.

Now, here is where the (1) stupidity or (2) wilful deception comes in. The fact a terrorist attack COULD occur is completely undoubted. Of course a terrorist attack could happen here. Unfortunately, there is probably a reasonable likelihood. However, the MERE FACT an attack could occur is no justification for stripping away to the bone our fundamental human rights, just to protect us from terrorism. Yes, we need to restrict civil liberties SOMEWHAT. However, these changes are not SOMEWHAT, they are to the greatest extreme we have seen in our lifetime, and wildly out of proportion to what SOMEWHAT would require.

The question no politician asks is:

‘To what extent are we willing to destroy our way of life and the fundamentals upon which our society is based to protect our way of life and society?’

Yes, terrorist attacks occur. Yes, it is nice to stop them when we can. BUT, what measures are we taking to achieve these ends? The question we must ask ourselves is whether or not these measures are proportionate to the threat we face.

November 5, 2005

Thumb Removal

Posted in Uncategorized at 6:21 pm by thelawthoughts

Via CrimProf.

The mayor of Las Vegas has a novel punishment for people who ‘deface freeways’ with graffiti.

Put them on TV and cut off their thumbs.

I would think this was a satirical piece, except for the fact that it seems very, very serious.

Just goes to show that the whackers in charge of the central admin in DC have NOTHING on the guys in charge around the country.

November 3, 2005

Our Happy New Anti-Terror Laws

Posted in Uncategorized at 9:16 pm by thelawthoughts

Yes, I’m busy at the moment. But not too busy to take a quick peek at our new anti-terror legislation, due to be rammed through Parliament any day now, come hell or high water. I just thought I should point out a few little tidbits to make you all feel safer.

1. When giving money to an organisation, it is now an offence to be ‘reckless’ in whether that organisation will use the money for financing terrorism. ‘Reckless’, in legal terms, is a very murky little word. NOTE TO SELF – DO NOT LOAD UP THE CREDIT CARD DONATING TO WORLD VISION. YOU NEVER KNOW WHO THEY MIGHT HELP.

These provisions apply even if the funds are not to be used in any specific terrorist attack. You give money to an organisation, they Govt decides they MIGHT use it for terrorism, BANG! You are up for LIFETIME IMPRISONMENT.

2. Preventative detention orders – I am not going to comment too much suffice to say that once detained, you can contact one person, but cannot tell them why you are being detained or by whom. Further, you can contact your lawyer solely for the purpose of ascertaining your rights under the detention order or your treatment under the order and to advise your lawyer about acting. The Bill says nothing about actually receiving assistance from your lawyer, just ‘advice’.

Such contact can be monitored by the AFP.

If you disclose that a detention order has been made against you, or that you are being detained, or the period you are being detained during the period of the detention, you might face 5 years in jail. IF I RANG MY GIRLFRIEND AND SAID ‘HEY SWEETIE, CAN’T COME HOME FOR A COUPLE OF WEEKS – HOPE YOU DON’T MIND’, SHE WOULD BE PISSED.

The same restrictions apply to the lawyer for the person.

3. There is a new defintion of ‘seditious intention’, for the purposes of the federal Crimes Act. One now has a seditious intention where they (1) bring the Sovereign into hatred or contempt (SO DON’T LAUGH AT PRINCE CHARLES. Or, by the way, nudge nudge Amanda Vanstone, DON’T CALL THE MONARCH ‘SWEATY BETTY’ LIKE YOU DID RECENTLY AT THE MALVERN RSL.) Hatred or contempt?? Come on! As Crikey.com says, they do it themselves.

Also, you are being seditious where you ‘urge disaffection’ against (i) the Constitution (having studied it for an entire year, I myself feel disaffected by it. If I tell all my friends what a crap subject it is, does that count?), (ii) the Government of the Commonwealth (because if there was ever an organisation which did not deserve some urging of disaffection, that is it. I guess that might shut up Rau and Solon) or (iii) either House of Parliament (well, I guess I can’t hang it on Wilson Tuckey any more. Or Reverend Tony Abbott. Or Uncle Johnny. Or Fat Kim. Or BLOODY ANYBODY.)

Again, as crikey points out, what about the Republicans? Are they going to nail Malcolm Turnbull? Eddie McGuire? Me? Maybe that was just Peter Costello’s way of getting rid of Malcolm for a while. Well, 14 days at least.

COME ON PEOPLE, WHY DOES NOBODY SEEM TO CARE ABOUT THIS STUFF?