April 30, 2006

Podcasting Legal Guide

Posted in Uncategorized at 11:43 pm by thelawthoughts

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!

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Reneging on the Refugee Convention?

Posted in Uncategorized at 11:25 pm by thelawthoughts

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.

April 26, 2006

Invoking or Copying?

Posted in Uncategorized at 4:06 pm by thelawthoughts

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.

April 25, 2006

Problem fixed?

Posted in Uncategorized at 11:16 am by thelawthoughts

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

Blogger Problems

Posted in Uncategorized at 11:14 am by thelawthoughts

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.

April 24, 2006

Bagaric Follow Up

Posted in Uncategorized at 9:17 pm by thelawthoughts

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.

April 23, 2006

Stuff

Posted in Uncategorized at 1:26 pm by thelawthoughts

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.

April 14, 2006

The Imminent Smackdown

Posted in Uncategorized at 10:57 pm by thelawthoughts

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?

April 13, 2006

Dan Brown in Winning Form

Posted in Uncategorized at 7:29 pm by thelawthoughts

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

Posted in Uncategorized at 11:15 am by thelawthoughts

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’.

April 10, 2006

Bangladeshi Cricket Chaos

Posted in Uncategorized at 7:08 pm by thelawthoughts

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?

Posted in Uncategorized at 6:12 pm by thelawthoughts

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.

April 9, 2006

Court Appearances via Blog

Posted in Uncategorized at 2:16 pm by thelawthoughts

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.

April 8, 2006

More Stadiums = Good City

Posted in Uncategorized at 12:29 am by thelawthoughts

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?

April 6, 2006

Mother Theresa a Porn Star? Or Just A Lookalike?

Posted in Uncategorized at 11:14 pm by thelawthoughts

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

Posted in Uncategorized at 11:08 pm by thelawthoughts

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

Posted in Uncategorized at 3:11 pm by thelawthoughts

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

Posted in Uncategorized at 3:08 pm by thelawthoughts

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.

April 5, 2006

International Conflict

Posted in Uncategorized at 12:28 pm by thelawthoughts

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

Posted in Uncategorized at 12:22 pm by thelawthoughts

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

Posted in Uncategorized at 12:17 am by thelawthoughts

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?

Posted in Uncategorized at 12:10 am by thelawthoughts

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

Posted in Uncategorized at 12:05 am by thelawthoughts

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.

April 4, 2006

Try, Try, Try Again

Posted in Uncategorized at 11:07 pm by thelawthoughts

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

Posted in Uncategorized at 10:59 pm by thelawthoughts

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.

April 3, 2006

‘Ruthless’ Employers Are Sacking People

Posted in Uncategorized at 11:27 am by thelawthoughts

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.

April 2, 2006

What is a Taxonomy?

Posted in Uncategorized at 9:48 pm by thelawthoughts

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.