December 25, 2005


Posted in Uncategorized at 7:36 pm by thelawthoughts

There you go. The Homeland Security story was rubbish. Since we need to own up, we will.

Here is the Daily Kos.


December 22, 2005

Incitement to Violence

Posted in Uncategorized at 8:34 pm by thelawthoughts

Let me start by pointing out that one of the fundamental principles of the Rule of Law is that legislation applies equally to all. What is the Rule of Law? Larry Solum can tell you.

When I see news items like this, I think two things. (1) Hooray and smack that person down and (2) why aren’t more prominent people being charged with exactly the same thing? I am a bit unsure on what basis this guy was charged, but if it had to do with sending text messages, it is probably the incitement to violence that was the alleged criminal act.

So, my question is, how are Alan Jones or Steve Price any different to this kid who sent around text messages? Given they read them out on talkback radio a couple of weeks ago, then, in particular Alan Jones, crowed about their involvement in this ‘show of strength’, why are they not being charged with incitement to violence?

I would even argue they are more culpable than the organisers of this kind of thing, because they are more influential in the community. If someone gets a message saying ‘let’s bash some Lebs’, lots of people would think what wankers these people are. However, as soon as it becomes mainstream, then at least some of those people think, ‘well, I guess its ok then.’.

I simply cannot understand, except to say that if they were prosecuted, they would undermine the government assertion that racism was not involved in these riots.

UPDATE: I forgot to link to Larry Solum’s entry on the Rule of Law. Fixed now.

December 20, 2005

A Few Links

Posted in Uncategorized at 12:14 pm by thelawthoughts

Too busy today to do anything but post a couple of links.

Firstly, I have been meaning to tell everyone I know about Dave Pollard. Give yourself a Christmas present and read just about everything he has written. Wow.

Secondly, I have a rare link to my blog. Dash Brannigan, that famed competitor of mine, debunks just about everything I say about martial law here. I disagree heartily, but my defence needs more time and preciseness than I can give today. However, defend I will.

If you don’t hear from me, Merry Christmas to all, party hard but not too hard and don’t take off your pants in company.

December 19, 2005

Knocking at the Door

Posted in Uncategorized at 11:44 am by thelawthoughts

Now that the US Department of Homeland Security is monitoring libray use, we can see the consequences.

See, for example, this piece by Anupam Chander, which relates how a university student who borrowed Mao’s ‘Little Red Book’ was visited by Federal DHS officials. The trigger, they said, was that he also had spent a lot of time abroad recently.

This stuff is just crazy. Note to any student who has been on exchange. Don’t think anymore. Don’t write any more essays. Don’t engage in criticism or conversation. The Feds will be at the door.

I hope ASIO isn’t monitoring Angus & Robertson Camberwell. I bought 1984, Machievelli’s ‘The Prince’ and Juvenals Satires the other day. I might be worth a visit, just to check I am not wearing any hippie clothes or something.

Lawyer Link of the Day

Posted in Uncategorized at 9:42 am by thelawthoughts

David Starkoff is always a great read, especially when he unearths little gems from court transcripts.

In his latest, he highlights Kirby’s discussion about his lack of crystal ball, which is clearly the result of his less than impressive salary, as well as Gleeson’s correction of the impression that Spartans had sex with their animals. An unfortunate turn of phrase from the barrister, indeed.

Have a read.

December 18, 2005

Moral Dilemma alright

Posted in Uncategorized at 2:58 pm by thelawthoughts

Everyone really should read Mirko Bagaric’s special brand of rubbish.

His latest article begins with this paragraph:

‘The Federal Government mercifully rammed the counter-terrorism laws through parliament recently. This will hopefully put an end to the tiresome ‘anti-democratic’ alarmist criticisms of the laws that have been pervaded by lawyer groups, civil libertarians and other ‘smarts’.’

It only gets better from there. Almost every sentence is simply his assertion, not backed by substantive proof. What is worse is that he is the Head of the Deakin Law School, which surely bodes well for budding students of Law at Deakin. If this is the crap they are being fed, I hope I never have to have lunch with them.

Secret, Presidentially Ordered, Spying

Posted in Uncategorized at 2:41 pm by thelawthoughts

The NY Times has this story on secret spying authorised by GWB in 2002.

As I understand, there is a mechanism in the US whereby Presidents can authorise laws without Congressional approval. That sounds funny enough, but at least Presidents usually tell people of the orders they are making.

In 2002, however, President Bush authorised the National Security Agency to authorise secret surveillance of terrorist suspects without court approval. This information was never released to the public, so that people have been under surveillance since that point with no public knowledge of the applicable law.

This is AMAZING. Essentially, the US administration made a huge step towards the implementation of an unaccountable police state, with no respect for law and no consideration of political probity. Usually, a President would be impeached for this kind of thing, but there doesn’t seem to be a great deal of uproar.

By the way, John Howard snuck a scary law through Parliament last week, which was lost amongst the hooha about VSU, IR, Anti-terror etc etc. The law authorises the PM, where the GG is unavailable, to call out the army to restore ‘law and order’. If the PM is unavailable or cannot be contacted in an emergency situation, ANY TWO MINISTERS can authorise and implement what essentially is martial law.

How does this play out in a situation like last week’s Cronulla riots? Let’s say that John Howard was on his recent trip to Pakistan and was up in the mountains with little ability to be contacted. At the same time, GG Jeffries is (hypothetically) opening a school in Canada and also is out of contact by government Ministers. In this situation, ANY TWO MINISTERS, can authorise the army to be sent to Cronulla to bash some skulls. So, Kevin Andrews and Tony Abbott could get together and implement martial law, so that our army roams the streets and ‘restores order’ with virtually no accountability. At least the police remain accountable to the public. The army are simply not.

Why is nobody getting worked up in Australia? Do we think these powers are a GOOD thing? When I go to NZ on Boxing Day, I may not bother coming back.

Swiss suicide

Posted in Uncategorized at 2:31 pm by thelawthoughts

The university hospital in Lausanne has decided to allow assisted suicide on its premises.

I wrote a Criminal Law paper in 2002 on the relationship between euthanasia and patients in persistent vegatative state (PVS). Assisted suicide is a different beast, but all part of the same argument, really.

It would seem that this practise is only going to become more prevalent around the world. It is already legal in some jurisdictions, to assist terminally ill patients to suicide, in, theoretically, strictly controlled conditions. Usually, these laws require (1) terminal illness, (2) doctors certifying the patient will not recover, (3) competence on the part of the patient, and (4) no practitioner involvement in the act which constitutes suicide, apart from the ability to provide a lethal concoction of drugs. This method of assisted suicide is legal in, for example, The Netherlands and Switzerland, as well as Oregon. There is a huge case being decided in the Supreme Court of the US on the constitutionality of the statute in Oregon.

The ethical concerns surrounding these practices are many. Of course, there is the issue of ‘competence’ and when a patient is actually competent to make a decision. A patient can be perfectly mentally aware but clinically depressed, or can be competent but feeling either direct pressure from children or the indirect feeling that they are becoming a ‘burden’. Regulating improper influence is incredibly difficult.

I posted once about the ‘sperm ship’ and this is another example of what could be called ‘regulatory arbitrage’. Basically, the ability of persons to seek out a jurisdiction which suits their agenda means there is a race to the bottom in terms of regulation. In Victoria, I cannot receive assistance to die, so I join the new ‘death tourism’ phenomenon and go somewhere I can.

The solution is not immediately obvious. Whilst generally in favour of removing life support for PVS patients, assisted suicide is an entirely different proposition. What are people’s views?

December 15, 2005

Terrorist Financing

Posted in Uncategorized at 2:20 pm by thelawthoughts

I read a news clipping from the AFR (can’t get the full article) which cautioned people from buying fake handbags. Why? Apparently, the proceeds are being used to finance terrorism.

This floored me. Firstly, does anybody actually know the title of the Act that deals with offences relating to terrorist finance? I really want to examine this issue in more detail, this is hugely interesting. As I understand it, it is an offence to finance terrorism, even if unknowingly, if you have been reckless as to whether your money is being used for such a purpose.

So, buying chemicals for your friend Mr. Bombmaker is clearly a criminal act. Dropping $20 on the street, which is used for this purpose, is clearly not. On this continuum, there is a grey area in the middle, which for non-lawyers, basically says you can be held accountable for acts you undertake without really being considerate of the possible ramifications.

Murder is a classic example. One can be guilty of intentional or reckless murder. My favourite reckless murder case is the guy who drove his semi-trailer into a crowded pub to kill his ex-girlfriend. He killed someone else instead. Clearly, this is intending to commit a criminal act, and being reckless as to the consequences of that act. Usually, you have to intend the consequences for the person who suffers them. Recklessness allows the law to attach the requisite mental element to people who, as in my example, kill the wrong person.

However, terrorist financing, as I understand, does not require the normal ‘mental element’ of criminal behaviour. So, as long as you fail to make proper inquiries as to the use of your money, you are liable to be prosecuted. If I give money to a local charity without really finding out what my money is being used for, should I be liable in criminal law as recklessly financing terrorism?

Personally, I don’t think so, but I think that is how the law stands. However, I can’t understand how this applies to pirated goods. Surely, we are not expected to make reasonable efforts to discover where our money is going. Regardless of the pirated nature of the goods, if somebody wants to use the proceeds of their commerce for illegal purposes, whether terrorism, drug financing, money laundering, whatever, should the consumer really be responsible? If the answer is yes, our entire trading system will fall in a heap. I won’t go to the milk bar in case the person behind the counter has a cousin who is a nutter who wants to blow things up.

Or is it just one of these laws, like sedition or incitement of racial hatred, which is only going to be used against Craaaazy Muslims, rather than us whities like Alan Jones, who under the letter of the law, are clearly guilty of an offence? It seems like the law is used when it suits, rather than in an even and balanced way.

My Kingdom for a Clever Client

Posted in Uncategorized at 2:12 pm by thelawthoughts

Now, I make no claims to frying the big fish in my office. Nevertheless, I am amazed at the clients I sometimes get lumped with. Like my Pro Bono of the Week client, Mr. International Student. He is a friend of the secretary, so I said I would help him out. Having had a chat on the phone, I suggested he come in for a wee visit.

It turns out he had applied on for an ‘accounts receivable’ job. He was asked for his bank account details. Did he give them? You bet he did.

Next, along comes an email from a Hotmail address, explaining that ‘the way this job works’ was that his ’employer’ sent him money, which he was to take to Western Union Money Transfer and send to someone else. I had a look at this email – the address? Somewhere in Bulgaria.

Hmmmm. Accounts receivable hey?

Then, he springs the following small fact on me. Oh, today, $1700 turned up in my bank account. What do I do? ‘What do you do?’ I say. ‘Ok, my friend, my advice is the following. Pick up your paperwork. Go home. Print out a transaction history from your internet banking. Go to the ATM. Take out the $500 that was previously in the account before it goes missing. Take your paperwork, including these hilarious emails, and go to the police. By the way, you will probably need a new bank account. Sorry, what was that?? No, you haven’t done anything wrong!’

Why do these clients only come in a week before Christmas?

As I was seeing him out, he looked at me sheepishly and said ‘What, I don’t have to pay?’ I looked at him for a bit and said ‘Pay for what???’. And off he went.

December 9, 2005

The Commerce Degree

Posted in Uncategorized at 12:41 pm by thelawthoughts

Yes, that Comm degree I was worried about is in the mail. Well, they hold onto it for a while, but it has my name on it. Thank goodness. I am now forever lost to the world of high finance.

The US and torture

Posted in Uncategorized at 12:33 pm by thelawthoughts

There has been a lot going around about Condi touring Europe ‘clarifying US policy’.

Apparently, the UN Convention on Torture now applies to the US military, whether operating in the US or elsewhere. This is a matter of ‘policy’ because the CAT is not a ‘self-executing treaty’ at US law.

To be frank, this really pisses me off. Australia has a similar system whereby international law, including customary international law, is not incorporated into domestic law until done so by legislation. Some treaties in the US are self-executing, which means they do not require Congressional and Senate approval before becoming binding domestic law.

To hide behind a system like this is rubbish. You do not ‘choose’ whether to activate a ‘policy’ of banning your Executive officials, employees and contractors from torturing alien or domestic persons. This prohibition is so strong at international law it is not just customary, it is ius cogens. I think I have discussed this before, but torture is a norm of law which simply cannot be breached. It is not up to governments to decide whether this law applies to them or not.

This, of course, is a purely legal discussion. I can’t even stand to go into the moral and geopolitical implications of the Executive branch of the sole superpower not being forthright and clear in its abhorrence of such a disgusting way to behave.

SamBucks Coffee

Posted in Uncategorized at 12:24 pm by thelawthoughts

Marty Schwimmer of the Trademark Blog (that’s Trade Mark on this side of the pond) reports on this case, which reminded me of McDowell’s in Coming to America.

Basically, Samantha Lundberg, nee Buck, wanted to call her cafe Sambucks. Starbucks filed for trade mark dilution. She lost.

When cases like this come up, I wonder why people can’t be a bit more creative. To me, it wouldn’t matter if this woman’s name was Star Buck. There is a very well known trade mark registered over a competing product and, under our law anyway, that is passing off your own product as that of the company with the well known brand. This formulation depends upon a finding of fact that the marks are deceptively similar.

There is always the argument that sometimes a brand is SO well known that someone trading with a similar brand is not deceiving consumers. They know they want McDonalds, not McDowell’s. This, however, doesn’t convince me. Companies and people who have been creative and created a brand deserve some compensation, despite the nice feeling that we should encourage innovation also.

I am incredibly skeptical about the increasing reach of both copyright and patent law. However, I don’t think rewarding a company like Starbucks for its branding strategy goes too far beyond what the law should provide.

Why can’t she call her cafe something a bit more thoughtful?

December 6, 2005

Theft and not so theft

Posted in Uncategorized at 9:59 am by thelawthoughts

Every now and then I think – “Wow – only in America”.

This case involved a public school librarian retreiving dumped National Geographic magazines from the school’s rubbish bin and selling them on eBay. What did he do with the money? Even if he went and spent it on beer, it probably wasn’t a criminal act.

However, he spent the money, along with $300 of his own, to buy computers for the school. What a wonderful man. Nevertheless, he was arrested for theft. He was never convicted, the charges being dropped in return for his resignation. He went through the system trying to get the record of his arrest expunged, finally achieving this outcome in the appellate courts of Pennsylvania.

Why should such a person be put through such an ordeal? I don’t know, you tell me.