May 30, 2006

Faking it Today

Posted in Uncategorized at 2:11 pm by thelawthoughts

The Today show got shafted yesterday.

Jessica Rowe asked our troop commander in Dili whether he felt safe, given that he had an armed soldier standing behind him, guarding him.

The response was that he didn’t need this soldier, who had been placed there by Channel 9’s stage manager.


Crikey’s links to the video is here, and Rowe’s follow up is here.


May 27, 2006

Banning the Da Vinci Code

Posted in Uncategorized at 4:31 pm by thelawthoughts

Why are people, especially Catholics, getting so worked up about this stupid book and movie? A cinema in NSW has banned it, and I have heard stories about it being banned in India too (links are somewhere!)

I am a Catholic and I couldn’t care less about what the Da Vinci code says. It is fiction, although good and intriguing fiction, but is it really worth the fairly draconian measure of censorship?

Don’t these people realise that by banning something like this, they give it extra impetus and maybe even more credibility? If you ban something, you first of all make people flock to it, but also you make people ask why it is being banned. Are they trying to hide something? Is somebody trying to prevent me getting information?

If you, as a Catholic, cannot refute the claims made in this work without trying to restrict public access to such claims, you don’t really have a great deal of faith in your religion.

This from a person who isn’t in the slightest big religious, but I am reminded of Mill’s argument that truth is only discovered when even the one person minority in a sea of people on the other side can make their argument, and have it examined by the majority.

Criminal Smooching

Posted in Uncategorized at 4:25 pm by thelawthoughts

A new anti-porn law in Indonesia is reportedly to make kissing in public a criminal offence.

Seriously. Five years jail for kissing in public? And they wonder why nobody is visiting anymore.

May 23, 2006

Iran v Israel – Round 26483

Posted in Uncategorized at 10:21 pm by thelawthoughts

Someone tell me – can they do that??

For those who can’t be bothered clicking the link, Israel is going to sue Iran in the ICJ for incitement to genocide.

UPDATED: Here is a nice little summary of the legal issues involved in this case.

Trust Opinio Juris to come up with the goods.

Aboriginal Customary Law

Posted in Uncategorized at 10:13 pm by thelawthoughts

I find it so interesting to read about cultural relativist arguments, pro or con, such as that surrounding customary Aboriginal law and our tolerance thereof.

Essentially, the cultural relativist says it is ok for Aboriginal men to rape small girls because ‘that is the way we do it’. It has been used to shield people from consequences of performing female genital mutilation and the like in Africa. Proponents argue that it is not up to ‘us’ to impose ‘our’ culture on ‘them’.

Critics argue that there are certain universal standards below which no culture can fall below. This type of argument goes along with ideas like universal rights. Basically, it says that ‘you’ can keep ‘your’ cultural practices as long as they meet universally recognised baselines, such as not being allowed to rape people.

I think this falls short of the extreme kind of argument, which runs like ‘the West is civilised, we know how to behave, you don’t, therefore you can’t do X’. I don’t like that argument either.

I, for one, am against cultural relativism where it permits violation of these basic human rights. However, are there cultural practices which, if we allow them to happen, do not violate those rights? Are we only interested in practices that violate what we say are basic human rights? Who gets to decide?

In this case, my opinion is that Aboriginal law should not be used for criminals to hide behind, or to achieve indemnity from prosecution. Laws allowing these practices to continue do not exist in Australia and, whilst I am all for allowing Aboriginals to pursue their heritage, I don’t think the tolerance of the legal system should extend that far. What we do need to do is work with Aboriginal communities to discover which parts of their law can be successfully integrated into the Anglo model, so that practices which do not harm can be allowed to continue as a matter of law, and practices which conflict with, for example, Anglo criminal law, should not be allowed to continue.

What do people think about all that?

UPDATED: The judge in this case has admitted that he made a sentencing mistake, in that he took too much account of customary factors, and not enough of the ‘heinous crime’ that was committed. Very interesting, not often judges make those types of comments.

Grandpa Directors

Posted in Uncategorized at 10:02 pm by thelawthoughts

Wow – I haven’t been blogging much lately, but it seems not too many people have noticed. Yes, it is exam time again. I’m slaving over a hot corporations law textbook and gee, I can’t wait til this is all over. Although it will be nice to go and have a pot with my 1st year brother after my last class this week!

I had to give my grandpa director’s duty advice over a beer tonight. He is 80-odd and let it slip that he is on the board of a ‘big’ company (his word). I asked if it was listed and he said ‘well, it is on the computer, so I guess it must be’. I assume he means his share trading software lists this company or something. I can’t, as yet, find this happy organisation on the ASX database, so it may not be.

In any case, he doesn’t go to meetings and has no idea what they are doing. Alarm bells went off. Oh my GOD grandpa, AWA v Daniels, YOU HAVE A MINIMUM STANDARD OF DUE CARE, SKILL AND DILIGENCE AND YOU HAVE TO ACT FOR A PROPER PURPOSE AND IN GOOD FAITH and when I had stopped hyperventilating, I told him that he had a choice – go to meetings of the board and work out what the hell was going on in his company, or send them a resignation letter. I may have been a bit rash, but when he said he couldn’t sit in a meeting unless he was the boss, I guess it showed me his time as a director was probably over.

He said he would send off a letter in the morning.

See, sometimes I forget that clients, and my grandparents for that matter, haven’t read the textbook. It becomes all the more important to watch out for what your clients are doing and ensure they are aware of their rights and obligations before the fact, rather than have them come in with a Writ and ask you to fix it. If your client tells you that he won’t comply with the rules he doesn’t even know about, even after being informed of them, then it is time to throw in the towel and get out of the game.

May 20, 2006

Echoes of the Past

Posted in Uncategorized at 2:13 pm by thelawthoughts

Apparently, the Islamic parliament seems to have passed a law requiring non-Muslims to wear identifying insignia. Yes, Jews are targeted, but Christians also must wear badges. This apparently is so that Muslims don’t accidentally touch somebody who is ‘unclean’.

Also, however, Iranians must wear standard clothing.

A State sponsored dress code? Why aren’t we doing more to stop these people getting hold of a nuclear weapon? They are…just…bloody…nuts.

May 15, 2006

Karl Rove Indictment

Posted in Uncategorized at 12:44 am by thelawthoughts

Rumors about that Karl Rove will be indicted for perjury over the Valerie Plame affair. See here, here and here.

Should this happen, it will be yet another crack in the administration which refuses to abide by any reasonable notions of the rule of law.

Essentially, Rove will be indicted for lying to the grand jury investigating the Plame affair, in which the name of Valerie Plame, a CIA agent, was leaked to the media. Her husband was a prominent critic of George Bush’s claim that Iraq sold yellowcake to Nigeria, or something similar.

In any case, it is great to see prosecutors with the guts to go after the big boys. Somebody like Rove, a ruthless, behind-the-scenes operator, almost never gets nailed for anything.

I can’t wait to see what happens.

May 8, 2006

Closing Gitmo?

Posted in Uncategorized at 6:08 pm by thelawthoughts

It is good to see that, after all, massive, sustained political pressure does work.

I can’t imagine Bush wants to close Guantanamo because he is feeling beneficent towards the detainees there. More likely, it is just not worth the stink anymore.

There is also probably some element of having worked out that nobody detained there can be proven to have actually done anything detain-worthy.

For those of you who actually believe in little things like human rights, jus cogens, rules about torture and the like, keep up the fight. Just remember that with people like Bush, it takes a while to register.

May 4, 2006

Case of the Year

Posted in Uncategorized at 11:51 pm by thelawthoughts

I didn’t realise it was happening already, but Day 1 of the WorkChoices challenge happened in the High Court today.

The ABC report is here, the Austlii transcript of the hearing is here.

I have to admit, I haven’t read the transcript. I will do so and report. I don’t know if Peter Beattie’s assertion, that a Constitutional Convention will be required should the states lose, is quite correct, but it is incredibly important.

Essentially, the Constitution gives the legislature power to make laws with respect to a whole range of things, corporations being one of them. The question is: is this legislation with respect to corporations? There is a whole lot of Constitutional rara that goes on about the scope of each head of power, but I really don’t think it relates solely to corporations. It is enough, however, for laws to mainly be enacted in relation to corporations. So, just because the laws apply to, say law firm, does not preclude them from being made ‘with respect to corporations’.

What I find most interesting is the interpretative perspectives being used. The conservative base in America, for example, wants the Constitution interpreted as if that interpretation were set in stone on the day it was made. Under this approach, the meaning of words is fixed. Hayne J is happy, it seems from the report, to allow for some bending of that interpretation, which is a more progressive approach. Words can change their meaning, with the result that the Constitution can also change its meaning.

In the end, though, the question I would ask is why would this legislation be unconstitutional if the old Workplace Relations Act was Constitutional. And if that Act is not Constitutional, why has nobody challenged it before?

May 3, 2006

Failed Capital Punishment

Posted in Uncategorized at 10:01 pm by thelawthoughts

If this incident is not a strong enough indictment of capital punishment, probably nothing will be.

The lethal injection on this bloke didn’t work, because the vein they were trying to use collapsed.

Can you picture the horror of this scene? You have a guy strapped to a bed, knowing he is about to die. He doesn’t die. He looks around and says ‘kill me properly, damn it’. He doesn’t really, but you get the picture.

If this is not cruel and unusual punishment, I defy anybody to give me a better example. What chaos.

Legal Football

Posted in Uncategorized at 9:57 pm by thelawthoughts

The whole football siren brouhaha has been very interesting over the last few days. Now that the laws of the game have been overridden, I am very interested to hear what people think. My opinion is that the game should have been awarded to Fremantle, but I can’t reconcile this with the laws of the game.

Basically, the game ends when the umpire says it does. The laws of the game don’t say anything about what happens if the AFL employs a stupid timekeeper, who can’t observe his duties. Incidentally, it is also a rule that the timekeeper must continually sound the siren until the umpires hear it.

In the wash up, and from a strictly legal perspective, I find it incredibly funny that the respective clubs are considering their legal options. I think there are legal options, for what it’s worth, but I don’t think the Supreme Court will bother examining them. However, I don’t think this will give people the message that the result of a football game IS NOT IMPORTANT, no matter how much the presiding judge wishes to do so.

In effect, the losers can point to the rules, which say the game ends when the umpire says, and argue that the rules of the game were arbitrarily overridden. For what it’s worth, I think this is an entirely valid argument. However, the argument in favour of the winner, which has been bandied about as a ‘natural justice’ argument, is far more interesting from a legal perspective.

If the result stood, people could argue that the decision was unreasonable, that natural justice was not done. My response would be, ‘so what?’. In effect, the decision is not reviewable for administrative error. Some administrative decisions can be reviewed, but usually only when the legislation giving the power to make the decision also gives the power to have the decision reviewed. As far as I know, nobody has ever seen football results as important enough to make them a ‘reviewable decision’ for the purposes of a natural justice type argument. No legislation says ‘the AFL commission can make decisions about results of football games and this is a reviewable decision’ (qualified lawyers, please forgive my crucifixion of legislative form).

Basically, therefore, Fremantle went to the AFL and argued ‘it’s just not fair, people’. It must be the first time in the history of the world that barristers (who I think represented both clubs) have made that argument and actually won.