March 30, 2006

Bail Problems

Posted in Uncategorized at 11:15 am by thelawthoughts

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.


March 25, 2006


Posted in Uncategorized at 10:37 pm by thelawthoughts

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?

March 24, 2006

The Progress of Kazaa

Posted in Uncategorized at 10:26 am by thelawthoughts

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.

March 16, 2006

Mills and Government Power

Posted in Uncategorized at 7:45 pm by thelawthoughts

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)

Posted in Uncategorized at 7:39 pm by thelawthoughts

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?

March 15, 2006

Are you watching the Comm Games?

Posted in Uncategorized at 8:58 pm by thelawthoughts

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.


Sony in the Crap Again

Posted in Uncategorized at 8:02 pm by thelawthoughts

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

Posted in Uncategorized at 7:55 pm by thelawthoughts

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

Posted in Uncategorized at 7:48 pm by thelawthoughts

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

Posted in Uncategorized at 4:09 pm by thelawthoughts

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.

March 12, 2006

AWB and conflicts of interest

Posted in Uncategorized at 9:05 pm by thelawthoughts

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

Posted in Uncategorized at 8:55 pm by thelawthoughts

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.

March 10, 2006

1000 Hits

Posted in Uncategorized at 12:25 am by thelawthoughts

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!

March 8, 2006

Don’t Panic – Dash was Joking!!!

Posted in Uncategorized at 3:38 pm by thelawthoughts

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?

Posted in Uncategorized at 2:57 pm by thelawthoughts

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.

March 7, 2006

I, My Lords, embody the Law

Posted in Uncategorized at 6:08 pm by thelawthoughts

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

Posted in Uncategorized at 12:00 am by thelawthoughts

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.

March 6, 2006

Public Transport and our Greenhouse Problem

Posted in Uncategorized at 12:07 pm by thelawthoughts

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?

March 4, 2006

Yes, Abortion is Illegal

Posted in Uncategorized at 10:29 am by thelawthoughts

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!!

March 3, 2006

Comment Activation

Posted in Uncategorized at 11:16 am by thelawthoughts

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!

March 2, 2006

How Do People See You?

Posted in Uncategorized at 10:59 pm by thelawthoughts

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

Posted in Uncategorized at 10:57 pm by thelawthoughts

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.

March 1, 2006

IP redux

Posted in Uncategorized at 8:28 pm by thelawthoughts

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

Posted in Uncategorized at 8:26 pm by thelawthoughts

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.