August 13, 2006

It Is Time to Bail

Posted in Uncategorized at 10:56 pm by thelawthoughts

After almost two years of doing this, I think I have had enough. Life is busy enough without voluntary stress!

I’ve decided to stop blogging, at least for a while, but I will leave my posts up. Thanks to all who have read and commented in the last two years!

Cheers

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August 8, 2006

Deakin Law School Link

Posted in Uncategorized at 1:09 am by thelawthoughts

Somehow, I have got myself on the ‘law blogs’ page of the Deakin Law School website.

It must be because I love Mirko so much. In any case, it is nice to be there. I don’t know that they got the right link, however, because I am under ‘The Law Blogs: Neatly Categorised’.

August 7, 2006

Native Plants in your Garden?

Posted in Uncategorized at 6:17 am by thelawthoughts

Harry Clarke has an excellent post on why we should all plant natives species in our yards. I couldn’t agree with him more.

June 28, 2006

Holiday

Posted in blogging, Uncategorized at 9:29 am by thelawthoughts

Even bloggers need a holiday! I’m off for five weeks on Sunday and, unless I get really bored at work tomorrow, I’m going to sign off until I get back.

Please keep me in your readers, or check back in a few weeks when I get back on deck!

Cheers all.

June 27, 2006

Socceroos

Posted in football, Uncategorized at 3:32 am by thelawthoughts

I’m going to go out on a limb and say THAT penalty WAS a penalty, but what a great game of football it was last night.

Really, teams shouldn’t complain when they are 11-10, they shouldn’t put themselves in a position where one good or bad refereeing decision makes or breaks the game. It was a simple story of the fortress-like Italian defence meaning we couldn’t get enough dangerous shots on goal.

Whilst the Socceroos utterly did Australia proud, one has to ask themselves –  ‘can you remember Buffon making any great saves?’ I can’t, which means there simply wasn’t enough pressure put on the Italian goal. Until the send off, Italy were all over us and, really, should have been up at least 1 or 2-0 at haf time.

Well done, boys, what a great effort.

June 17, 2006

Insomnia

Posted in Uncategorized at 7:12 am by thelawthoughts

I know I link to 43Folders a lot, but how can you not? Exam time means these anti-insomnia tips are coming very much in handy.

Some good comments also – don't have too much electronic equipment in your bedroom, for example. I find that creating good associations with your bed works. So, I find that reading a good book in bed creates the association of feeling nice and happy. In turn, I can't read much of a book in bed, even when I am really enjoying it. 

June 16, 2006

KFC follow up

Posted in Uncategorized at 2:48 am by thelawthoughts

The web is teeming with reports about the KFC case, but I can't get my head around the crucial question the group bringing the action must answer.

What on earth is the cause of action? Further, does this public interest group have standing to bring the action? Is it tort or what?

I just don't get it. 

June 14, 2006

Leave Junk at Home

Posted in Uncategorized at 6:08 am by thelawthoughts

I'm going to Europe in a few weeks, so this advice was timely. It is incredible how much junk I can pack if I try. I give in to that urge to throw in the extra jumper and pair of pants, as well as taking about 8 books which I won't read but feel naked without.

Vicarious Liability of the Church?

Posted in Uncategorized at 5:47 am by thelawthoughts

To what extent can a person who has been sexually abused by a Catholic priest sue the institution of the church?

See this case in the US, in which it was held the person could sue the Holy See, despite its claims of immunity under the American Foreign Sovereign Immunity Act, because apparently that law has an exception for tortious behaviour.

It might have been interesting to see whether the Court would apply vicarious liability. Is the church an employer? This could mean that the Church would be liable for the tortious acts of 'employees', although the acts would have to have taken place within the normal scope of the employee's employment.

That sexual abuse was part of normal employment duties of priests might seem like the reality, it would be a tough argument to get up on.

June 11, 2006

How the World Works

Posted in Uncategorized at 10:12 am by thelawthoughts

Dave Pollard put up a post ages ago about money flows in our capitalist society, and how wealth is consciously entrenched by governments and powerful corporations.

Very interesting stuff. I can't find any holes.

Keeping Up

Posted in Uncategorized at 4:55 am by thelawthoughts

43Folders had a few very interesting posts about the phenomenon of 'info glut' a while ago (see here and here).

I am a shocking 'keeper-upper' and it can make life much more stressful than it needs to be. I take on too much reading, too many newsletters, too many blogs. I feel like I need to read them all, and have trouble deleting information 'I might need' without reading it.

I have a pile of Economists I haven't had time to read, and a pile of marketing newsletters.

Why do we do this? I am not the only one! I guess that now we all have access to the sum of human knowledge, we feel like we are missing out on information if we don't take it all in. We need to realise that we don't need EVERY piece of information out there. Good luck changing the habit, however!

June 8, 2006

The Lying Big V

Posted in Uncategorized at 7:36 am by thelawthoughts

As a lawyer, who in their right mind would tell the media that a statement of agreed facts they handed up to the Federal Court was just something they said so that the problem would go away?

Now, Steve Vizard is in the spotlight for a possible perjury prosecution. It is not like he said something in court before the police found a document on his hard drive which contradicted his evidence. He contradicted his own evidence in the Magistrates Court via a court document to be handed up in the Federal Court!

If I were his lawyer, I would be checking seek.com.au for a new job and my professional indemnity insurance. What a great response. ‘Oh, yeah, that…We were just blowing smoke up your arse there, Your Honour. We didn’t really expect you to take those as facts, more, just, um, well, goodbye.’ [door slamming…sound of lawyer running].

How pissed off would the judge be?

Stop Pretending

Posted in Uncategorized at 7:35 am by thelawthoughts

Just a quick note to John Howard, who, whilst probably better at running a country than me, remains a git.

If you are going to have convictions, don’t pretend to the electing public that you can reconcile your convictions with what is the ‘politically correct’ thing to say. If you want to remove discrimination against homosexuals, don’t then turn around and say their relationships are less real, important, valued, legitimate [insert correct adjective here] than that of a man and a woman.

It is like saying ‘I don’t hate Aborigines but doesn’t it suck that they can get access to the same welfare benefits as white people’.

June 4, 2006

Montenegro’s independence

Posted in Uncategorized at 1:33 pm by thelawthoughts

Good on them. Montenegro formally asserts its independence.

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.

Ouch.

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.

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!

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.

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

Impeachment

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.

Yay!

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.

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