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.

The ‘Inbox Zero’ series

Posted in lifehack at 9:36 am by thelawthoughts

Another 43Folders link. Or, well, three. More for my benefit than yours.

Given the dates on these posts, it must be obvious for all to see how long articles stay in my feedreader backlog.

These posts will give you a good run down on how to process your inbox. Know what? They will help you process any information stack you have, just quietly, not just your inbox.

I’m trying, Merlin! I’m trying!

Citing Legal Blogs

Posted in blogging, judgments and transcripts, law reform at 7:23 am by thelawthoughts

Ian Best has put together an incredibly interesting list of citations in judgments to legal blogs.

Welcome to the future of legal scholarship. It is only a matter of time until judges here start to cite blogs by legal academics in Australia.

Guantanamo Suicides ‘Warfare’?

Posted in terrorism at 7:17 am by thelawthoughts

Are these idiots serious? The US military at Gitmo have said that the three suicides the other day were a calculated act of warfare, not an act of desperation.

What. Utter. Wankers. 

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!

How Cool is This!

Posted in random at 4:46 am by thelawthoughts

Dolphins recognise each other by name, not tone of voice.

How awesome! 

BBC gets into a Virtual World (updated)

Posted in contracts, copyright, internet law, law reform, virtual worlds at 4:36 am by thelawthoughts

I am going out on a limb and will say that the law of virtual worlds is going to be one of the most important legal discussions we, as a society, need to have.

The BBC has rented space on a virtual island, to broadcast a concert to people who are 'visiting' the virtual world. Here are some critical questions the law needs to answer:

Should virtual world creators be allowed to set the rules? Does this mean we have 'private States' rather than our current public government? In other words, should game or virtual world creators be allowed to 'legislate' so that their rules apply over 'real world' legislation? What happens when real money is exchanged for 'virtual goods'? Do real world contract laws apply? Who owns the copyright in the BBC's concert? Do property laws apply to virtual worlds? What happens if a gifted coder hacks the virtual world and destroys parts of it? Should owners of virtual property get compensation?

This is effectively a rambling list off the top of my head. There are even more important issues to discuss than these and it is a fascinating development.

UPDATED: To follow this up, I found an interesting piece by the Counterfeit Chic on counterfeiting in virtual worlds. See? I told you this was important!

Fair Use Copyright Review

Posted in copyright, fair use, law reform at 4:00 am by thelawthoughts

Kim Weatherall provides an in-depth commentary on the Fair Use review just held in Australia.

They are getting there, although I always doubt the ability of Parliament to keep up with technology as the Attorney General says it should. Why not draft the legislation to allow the US case-by-case assessment of whether the use is fair use? My impression of the Copyright Act provisions were that they were so narrow as to be almost non-existent.

My biggest gripe is that, although it is now legal to tape your favourite show and watch it later, if you watch it more than once, watch out.

Why would a review which was designed to weed out the ridiculous time- and format- shifting anomalies in the current Act leave oddities like this in there by choice?

Bosnian War Criminals

Posted in criminal law, war crimes at 3:37 am by thelawthoughts

It might take a lifetime to catch all these animals, but one by one, alleged Balkan war criminals are being captured and handed over to the ICTY.

Despite the reasonably slow progress in prosecuting these people, nevertheless the process must be pursued. If these people did half of what they are accused of, then the money being spent on their prosecution is well spent.

Abolishing AWAs

Posted in industrial relations, politics at 3:34 am by thelawthoughts

Kim Beazley has announced that a Labor government will abolish AWAs.

While I am not a fan of the way AWAs are being used by the current government, what is the alternative being proposed by Beazley?

If he has one, he should tell us about it. If he doesn't have one, he leaves himself open to accusations of being just as ideological as the current government.

Beazley won't replace AWAs with another form of statutory individual contract. So, how does he proposed employment agreements be regulated?

June 10, 2006

Melbourne Uni Grad Degrees

Posted in university at 7:02 am by thelawthoughts

Much has been said about the coming changes at Melbourne Uni, where law, med and architecture are going to be offered only as post grad degrees. I think the discussion going on at Kalimna is fairly representative (and here for earlier post) and I agree with one commenter than nursing and teaching should be added to that list. Teachers who haven't studied something like literature, politics, history or higher mathematics are much less valuable than those who have done a full degree and a DipEd, in my humble opinion.

My starting point, as a current law undergraduate, is that every law and medicine student I know currently undertakes a double degree. Every single one. Medicine students must do a research year at Melbourne, which gives them a BMedSci. I did Commerce. Most of my friends do Arts. Holding all things equal, all that changes in the restructure is that students do their secondary degree first, and their primary degree second.

All this means is that people who don't know what they want to do can do an Arts or Commerce degree, thereby reestablishing those degrees as the classic first-choice liberal arts degrees. If they then want to be lawyers, they can go on at the postgrad level. People who want to be lawyers off the bat will do exactly the same thing. Nothing is lost, except reducing the number of law graduates, which in the current climate (being a grad this year and having been through the job application process) is not such a bad thing.

Under the changes, law students would only need to spend an extra year or so at university. People have been banging on about extra debt, but I think that is a bit of a furphy, on one proviso.

If Melbourne Uni were truly aiming at higher academic achievement, they would offer roughly the same proportion of HECS places as they currently do in the undergrad structure. This would mean no extra debt and in fact a reduction of debt, because students who undertake the law degree but do not practice are currently forced to pay back that degree. Students who get to the end of an undergrad degree and decide to be, say, a publisher, will not waste that extra three years.

My main argument with Harry Clarke's piece is his assertion that 'some bright students who know initially what they want to do will switch to dedicated undergraduate programs at other universities.' In my experience, plenty of people, including myself, know they want to be lawyers or doctors out of high school. Given we all do doubles, I cannot think of a single person I know who would have gone to a different institution because they could do law straight up, without having to do an Arts degree first. 

In the end, people often need to learn how to study, and giving these students the time to do this through an Arts or Commerce degree before tackling law can only lead to an increase in the quality of student work in the later law degree. Once students have the skills, they can tackle law in a much more meaningful way and Melbourne law graduates will be more sought after than they are now.

June 9, 2006

World Cup Predictions

Posted in football, random at 2:14 pm by thelawthoughts

Now that the World Cup has started, time to make some predictions. Come on people, pick a winner in the comments box.

What I really want to know is who is the best value at the TAB. I like Argentina for value, Brazil of course for sheer class. However, my tip is England. They have to win one sometime.

I, of course, reserve the right to change my pick to keep things interesting when England don't make knock out.

Hypocritical Murder

Posted in criminal law, murder, politics, terrorism at 9:11 am by thelawthoughts

Can somebody tell me why it is ok for the American military to murder people, but it is not ok for those same people to murder people? Why is nobody reporting the irony in George Bush's comments, which ran something like 'this violent man will murder no more'?

Now, I am not pro-terrorist and I don't care about numbers or scale. Zarqawi was an animal, I am sure. What I can't stand is a group of people getting up and saying that by their own murder, they have acted virtuously in preventing the murder of others. Why should governments be able to assassinate people, then blow up their photo on CNN and denounce them as murderers?

Murder is murder, regardless of which person commits it. I would even argue that state organised and sponsored killing is much worse than murder by a private citizen.

Some ‘How to Get Noticed’ Links

Posted in blogging at 6:29 am by thelawthoughts

For all you bloggers out there who are frustrated non-famous people, have a look at Seth Godin and Dave Pollard's posts about how to get noticed, and what the blogosphere wants.

Interesting to me is the presence of opposites in Godin's list. Blog about your kids, but don't. Blog on weekends to stand out in a smaller crowd, but blog on weekdays because there are more readers. I think it is summed up in another must – absorb all day, every day. Blog when you can. Blog when you think of something. Blog when a news article makes you so mad you want to throw your computer out of the window.

Because in the end, there are so many ways of being noticed that it only takes what works for you to catch on somehow, before you are in feedreaders everywhere. 

Appellate Judges

Posted in funny law, judgments and transcripts at 6:18 am by thelawthoughts

See David Starkoff for a great quote about appellate judges, from the perpsective of trial judges.

I would just post his post in full, but that is naughty.

You Will be Bound

Posted in contracts, real estate at 6:11 am by thelawthoughts

I noticed that when I made an offer on a flat the other day, the real estate agent told me it had to be in writing for the vendor to accept it. No problems, I thought, send me over your forms and I will write in my offer.

Problem was, I suffered a shock like those detailed here by The Australian Real Estate Blog. Instead of some form with a space for my 'in writing offer', I got the front page of the contract note. Further, it had the subject to finance clause deleted. The agent expected me to sign the contract note, fax it back, and be contractually bound if the Vendor 'accepted' the offer and signed.

Apparently this happens all the time. I was expected to sign a contract, which I was not given the opportunity to read, without the protection of a back out clause should I not like it. Not only that, they would not submit my offer to the vendor unless it was by way of the contract note. In other words, I had no opportunity to buy the flat unless I was willing to sign a contract which I was not allowed to read.

My solicitior said this was common practice and that I couldn't do anything about it. What a ludicrous situation this is, where the Vendor could have any contractual term it wanted in the Special Conditions to the standard form contract note, and my signature would be on the front. If you won't take this chance, you can't buy the property! 

New Politician Blog

Posted in blogging, politics at 5:07 am by thelawthoughts

The Hon Penny Sharpe MLC, an Upper House member for NSW, has started a blog here.

Everybody should get behind politicians that start blogs, so that more of them will do it. And I mean genuine, grass roots contact kinds of blogs. This one by Malcolm Turnbull is fairly average, but at least it is out and about.

The more pollies get blogging, the more they hear you. The end result should be that a more genuinely representative and responsive democracy is created. No? 

Community Service in Zambia

Posted in funny law, judgments and transcripts at 4:58 am by thelawthoughts

This UK businessman will be thanking his lucky stars– after overstaying his visa in Zambia, he was sentenced to 15 days gardening at, guess, the Zambian Immigration Department!

Imagine we applied that policy in Australia. Right, all you queue jumpers, get out and mow the lawn, then we will deport you. We would save a heap of money on those expensive outback detention centres, and would save even more on the gardening bills in Canberra. I hear there is a lot of grass up there.

Captain Copyright

Posted in copyright, marketing, politics at 4:50 am by thelawthoughts

The IPKat put a link up the other day to a new superhero called Captain Copyright. Take a few minutes to have a look through this website and come back.

Done? Did you see the 'Story of Captain Copyright' comic? If you didn't, the superhero, wrote a comic when he was a child. The big bad 6th grade bully stole it, then sold it to everybody in the school corridor. Captain Copyright has dedicated his life to not letting the bullies win.

I think depicting people who use the work of others in this way is incredibly dangerous. They have exercises in the teachers section for 1st graders (6 year olds?). Stuffing this kind of propaganda down the throats of impressionable children is wildly irresponisble.

The concept was created because there was a gap in the ability to teach kids how copyright works. Even if you are in favour of copyright, it is terrible to present the ideas in such a slanted way. Yes, the infringer in this case was in the wrong. However, the loaded associations with bullies and rip off merchants is simply not fair. To associate infringers with bullies means that kids growing up with this stuff will not in future come to the concept with an open mind to decide what is best for society in terms of the balance of copyright.

I must admit, however, this is an incredibly visionary campaign from whoever thought it up.

World Cup Sponsorship

Posted in marketing, passing off, sponsorship, trade practices at 4:28 am by thelawthoughts

This photo, posted by The Trademark Blog, gives rise to an interesting question about sponsorship rights. Air Emirates are the official WC sponsor of FIFA, as I understand, and are grumpy at Lufthansa painting soccer balls on their nosecones.

The question I have is whether this creates any association in the minds of consumers about an association between Lufthansa and FIFA. I don't think it does. They aren't using the WC insignia on their planes, nor in their advertising, which in Australia is often protected by law (see Part 5A of the Commonwealth Games Arrangement Act 2001 (Vic) or the Olympic Insignia Protection Act 1987 (Cth) ). They are not really attempting to associate themselves with FIFA or any other directing agency involved in the World Cup. They are merely, well, cashing in on World Cup Fever.

There is no cause of action I can think of to be brought by a sponsor against Lufthansa. It is not passing off their product as that of FIFA's or Air Emirates'. The only action that might be possible is an action in misleading and deceptive conduct under s52 of the Trade Practices Act, or for false or misleading representations under s53. 

Whether either of these actions would get up is very difficult to say. The best thing about s52 is its broad scope. However, if you are trying to avoid a misleading and deceptive conduct action, you probably want to avoid saying things like this:

"People might think we are a sponsor," said Amelie Lorenz, a spokeswoman for Lufthansa, "but that's good for us."

June 8, 2006

The Lying Big V

Posted in criminal law, politics at 5:26 pm 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?
<!–[endif]–>

<!–[if !supportEmptyParas]–>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! <!–[endif]–>

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 discrimination, politics at 5:20 pm 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’.

eBay Home Sales

Posted in contracts, funny law, internet law, real estate at 8:55 am by thelawthoughts

This story, about Uri Geller (the spoon bending guy) buying Elvis Presley's old house, is intriguing.

After his bid, but before any documentation was signed, the house was sold to another party. Interestingly, an auction is not an offer for the purposes of offer and acceptance forming a binding contract. The bid is the offer. Accepting the bid is at the discretion of the vendor, despite what the auctioneer may tell you.

Whatever the outcome is in terms of contract law, I find eBay's reaction the most fascinating. Here is the money quote:

"The platform we provide in real estate really serves to generate interest," said eBay spokeswoman Catherine England. "It isn't a legally binding contract," she added.

Excuse me? An eBay sale is not a legally binding contract? So, are we just bidding on things in the hope somebody will send the product? At what point does a sale made on eBay become legally binding?

From my 236-odd experiences buying and selling on eBay, I have found that the bidder always transfers the money before the seller posts the item. What would happen if the $1mil odd sale price was deposited, then the vendor said, 'sorry, not a legally binding contract'. Could they sue for their money back?

I know they can in Equity, but what a hassle! Next time you are on eBay, watch what happens to people who renege, who effectively say 'it's not a binding contract'. Not pretty, I can assure you. It seems to me that everybody on eBay thinks it is a binding contract.

Centralised Water Management

Posted in constitution, federalism, politics, water at 8:45 am by thelawthoughts

Although Malcolm Turnbull hosed down suggestions that water management might be taken over by the Commonwealth government, why would this be such a bad idea? Even if limited to major water systems that cross state borders, I can't see why it is a bad thing for a central agency to determine the best way to manage water in this country.

Western US states like Utah, New Mexico and Colorado have terrible problems because they all assert rights over the one river, which of course is diverted upstream by those states through which the river runs first. This is inevitable, regardless of any agreement that might be reached and results in lower states being without enough water.

If states didn't control the distribution of the water in major river systems, to some extent these problems could be reduced. States should not need to fight each other to assert their water rights. If water really is a resource for us all, then its management and oversight should be centralised. 

The problem becomes more difficult when dams and power stations, rather than just rivers, are involved. However, I don't think the states were putting up a fight against privitisation, it was a populist reaction that caused the sale to fall through. The decision to privatise an asset like this would have been passed by the current Federal government if not for that movement, but the states would equally have been happy to see the sale go through.

If the point of having states is to ensure there is adequate discussion and opposition to moves like this from the central government, the question becomes whether the states actually have any power to provide that opposition. VSU, IR laws and terrorism laws have all been pushed through recently by a central government which has had the backing of state governments, even though one might expect the natural positions of said state governments would be opposed to the legislation being passed.

No Legal Aid for ‘Terrorists’?

Posted in legal aid, terrorism at 8:13 am by thelawthoughts

Reports are around that terrorism suspects' lawyers have had their legal aid funding withdrawn, because the lawyers must submit to security clearances.

This is a great example of how bad laws, passed in a hurry, have unintended consequences.

It is unforgivable that in a society such as ours, legal aid can be withdrawn from defendants because the risk to the funding body of having a case stopped is too high to make the case viable for that funding body. Security checks for the lawyers is crazy. They are lawyers. Their security status has no bearing on their ability to defend a prosecution. What, are they worried the lawyers are going to blow up the Supreme Court?

If they are dodgy lawyers who are a threat to security, how on earth does this affect whether they should represent a defendant? Being dodgy and not undergoing a security clearance didn't stop Zara Garde-Wilson or George Defteros defending clients. The security status of the lawyer has no bearing on the conduct of the trial.

Legal Aid should not be put in a position where it is willing to provide assistance to defendants who, in this case at least, are generally assumed guilty regardless of their trial but is forced to consider the wasted costs involved in a negative securityclearance.

Shaving Tips

Posted in random at 7:58 am by thelawthoughts

There is so much good stuff out there, I just can't help sharing 43Folders' really good shaving tips. As Mr. Painful Shave, these types of articles are what the internet is all about. Forget the connectivity, academic research, access to news, this is what it's all about.

US Gay Marriage Follow Up

Posted in constitution, politics at 7:55 am by thelawthoughts

The first serious shots were fired in the gay marriage constitutional amendment debate. The President was blocked in the US Senate from beginning proceedings to amend the Constitution.

He is not fazed, though. He recognises it often takes a few tries to get these kinds of things through. Why not just get on with running the country? Crazy Iranians are playing with their uranium toys, why not deal with them?

I know this is a political issue which plays well with his base. But at what point does a person become a leader and deal with the things that are important to world security and wellbeing, rather than pandering to people who found their beliefs staunchly on religion?

I also know that this is really important to President Bush. He genuinely cares about this, as does our own PM. Still, there are some personal crusades that simply do not need to be waged whilst more important things are going on.

Alternative Dispute Resolution

Posted in funny law, judgments and transcripts at 7:50 am by thelawthoughts

Writing my Civil Procedure exam notes, which deal extensively with alternative dispute resolution, means I am in a frame of mind to be receptive to quirky methods that do not involve the words mediation, negotiation or arbitration.

Having said that, this case is not what I had in mind. Evidently, two lawyers who could not agree on the venue for a hearing were ordered by the court to play rock, paper scissors to determine the outcome. Yes, by court order. This is a binding order which in punishable by contempt of court proceedings.

It makes one ask the question, 'why can't they just figure it out?'

Refugee Detention Legislation

Posted in politics, refugees at 7:45 am by thelawthoughts

Andrew Bartlett, as usual, provides a comprehensive inside view of the possible defeat of the newest piece of keep them out legislation.

It is interesting to note that finally cracks are starting to appear in the Howard government. Pieces of legislation are being put back because of backbench murmurings. Privatisations are put on hold. The winds are changing?

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

Gay Marriage in America

Posted in constitution, politics at 1:45 pm by thelawthoughts

Being a country that supposedly values freedom above all other values, the United States sounds utterly hypocritical when its President spouts ideas such as a Constitutional amendment to ban gay marriage. To amend the Constitution is a HUGE deal. Australia has done it 8 times in over 100 years and the US has made 27 in the history of the country, and only 3 since 1967.

Whose freedom is important to Americans? Everybody’s, or just ‘my own’? How can a country based on liberty tell people with a straight face that they can’t marry whoever they damn well want?

Now, I know this is a political move that probably won’t go anywhere. Further, I know that people will say they aren’t telling people who they can and can’t have a relationship with, but I don’t believe such assertions. It is all about trying to oppress people in such relationships.

I find it incredible that the conservative base will get revved up by this. Is this a tactic like the Republicans used at the last election, where they put these kind of Propositions on ballot papers to ensure conservatives voted, or do they really believe this crap?

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.

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