Archive for the 'Law' Category

Would judicial activism have saved the Howard government?

Published
by
Mercurius
1 week ago
in Government, History, Industrial Relations, Law, Politics and Uncategorized
. 12 Comments

While I’m quite a fan of allohistory, I rarely engage in it because (a) I’m not very good at it and (b) it’s rather self-indulgent. But like most indulgences, it’s a bit of harmless fun and it won’t make you go blind.

So here goes: This letter in today’s Oz alerted me to the intriguing possibility that a bit of judicial activism by the High Court over WorkChoices might have been enough to save the Howard government from electoral oblivion.

While the High Court’s 2006 judgement on WorkChoices makes an unassailable case for the legal correctness of upholding the legislation, let’s pretend things were different. If the High Court judges had gone all activist and concocted a convoluted Constitutional argument to strike down WorkChoices, then the result of the 2007 election might have been very different.
Continue reading ‘Would judicial activism have saved the Howard government?’

Legal eagles take flight

Published
by
Kim
1 week, 2 days ago
in Blogging and Law
. 33 Comments

… to establish a new star in the Ozblogging firmament.

Helen Dale aka skepticlawyer and Legal Eagle have teamed up to start a new blog - skepticlawyer by name.

Helen explains her rationale at Catallaxy. She doesn’t reflect on her old digs, and the following represents my opinion not hers. But having witnessed the degeneration of Catallaxian comments threads over recent years - yes, folks, once upon a time you could go over there and have an intelligent argument with the libertarians without being told you were a LIAR and a taxeater, being threatened with horsewhipping, having to endure reading your way around hundreds of piffle filled comments of hyperbolic idiocy, etc. - it’s a move I’m pleased she made! Although Helen’s politics aren’t to everyone’s taste, I don’t think there’s much disagreement that she’s got a fine analytical mind and can turn a neat phrase, so I am looking forward to watching this baby blog grow.

Analysing Austria

Published
by
Kim
1 week, 6 days ago
in Crime, Culture, Feminism, International, Media, Politics and Sociology
. 202 Comments

There seems to be a great need for particularly heinous crimes to be invested with some meaning - a displacement, I think of “how could this happen?” into “what is it about this society that enables this to happen”? This is very much at issue with the horrible crimes committed by Josef Fritzl, who confined his daughter to a cellar for 24 years, and incestuously sexually abused her, leading to the birth of seven children. Much of the commentary appears to refer back to some sort of essential Austrian pathology, no doubt stimulated by the fact that this isn’t the first recent case of an abduction and forced deprivation of liberty in a cellar - the case of Natascha Kampusch was brought to the forefront of people’s minds by the revelations of Fritzl’s horrendous crimes.

The tenor of this insta-sociology is clear from the (rather asinine, imho) questions Leigh Sales put to Times Berlin bureau chief Roger Boyes on Lateline last week.

LEIGH SALES: This is not the first case of its type in Austria and you mention the issue of Austria being a “look away society”. We also had the case recently there of Natascha Kampusch, the woman, the girl who was kidnapped and kept in captivity for eight years. Every society, of course, has its inexplicable cruelties, but you’ve written that Austria in particular is a society that nurtures its secrets, that suppresses its history, that blocks out uncomfortable biographies. What do you mean by that?

There seems to be an assertion around that the Austrian failure to do de-Nazification properly (which raises the question of whether Germany did either - which is a big one) and its consensual system of politics created this “look away society”. It was to Boyes’ credit that he pinged the responsibility at a much less metaphysical or world-historical level - the uselessness of the Austrian police and bureaucracy (which of course, for readers of Robert Musil’s novels and/or students of Habsburg history, is a much older story than the Nazi one). Continue reading ‘Analysing Austria’

Rudd govt anti-same-sex-discrimination bill depends on the Senate balance of power

Published
by
tigtog
2 weeks, 3 days ago
in Law, Lesbian and Gay, Parenting and Policy
. 31 Comments

The Age:

The Age believes Attorney-General Robert McClelland will announce today that he will introduce amendments to Parliament as early as next month to alter around 100 federal laws.

The changes will not allow gay marriages or same-sex couples to adopt children, and the issue of access to the Family Court for same-sex couples is still being resolved.

Some of the changes would take effect immediately, but many financial laws — such as social security, tax and veterans’ affairs — would be phased in by mid-2009. But first the changes will have to be passed by the Senate, where the Coalition retains its majority until July 1.

Even after then, Labor will need the vote of conservative Christian and Family First senator Steve Fielding and independent senator Nick Xenophon if it cannot clinch Coalition support.

Opposition Leader Brendan Nelson has signalled he backed the principle of removing discrimination against gay couples but has yet to secure formal support from his colleagues.

This is the sort of situation that led to my rabbiting on so much about the importance of balancing the Senate in our last election. I’ll bet on Fielding voting against this bill, in which case unless the Liberals support it it won’t go through. Continue reading ‘Rudd govt anti-same-sex-discrimination bill depends on the Senate balance of power’

Haneef blame cage match continues…

Published
by
Robert Merkel
2 weeks, 3 days ago
in Crime, Federal election 2007, Howardia, Security and Terrorism
. 16 Comments

Former Howard Government minister Kevin Andrews and AFP Commissioner Mick Keelty seem to be continuing their attempts to blame each other for the Haneef debacle. You’ll recall a couple of days ago that a “source”, most probably Keelty or somebody close to him, claimed that Andrews had cancelled Haneef’s visa without bothering to tell the AFP. Now we have the bite back from Andrews. From the Oz:

FORMER immigration minister Kevin Andrews had no idea of powerful evidence of Mohamed Haneef’s innocence when he controversially revoked the visa of the then terrorism suspect last year. Mr Andrews will tell the Rudd government-ordered inquiry into the bungled case, which opens today, that Australian Federal Police did not inform him of evidence debunking allegations against Dr Haneef’s second-cousin Sabeel Ahmed - allegations that had led to the subsequent terrorism charge against the Gold Coast doctor.

These guys were supposed to be in charge of protecting us from Scary Terryrists - one, of course, still is. Thank your favourite deity that there seems to be so few actual Scary Terryrists in Australia, or we’d really be in trouble…

The politics of Hicks

Published
by
Kim
2 weeks, 4 days ago
in David Hicks, Howardia, International, Law and Terrorism
. 74 Comments

If there’s any doubt remaining after the Haneef affair that what passes for justice in terrorism and law enforcement matters is nothing of the sort but a blatantly political bag of tricks, the comments from David Hicks’ prosecutor, Colonel Moe Davis, should lay it to rest.

The former chief prosecutor of the US military commissions at Guantanamo Bay said overnight he would not have pursued Hicks because the case against the Australian was not serious enough.

The ex-prosecutor, Air Force Colonel Moe Davis, told a pre-trial hearing for another Guantanamo Bay inmate he had “inherited” the Hicks case and wanted to focus on cases serious enough to merit 20-year jail sentences, with the Australian’s case not meeting that mark.

Davis also said the commissions were tainted by political influence and evidence obtained through prisoner abuse.

The mendacity of the Howard government - pushing for Hicks to be charged after he became a political problem, after letting him stew because doing so was a political advantage - stands exposed. Continue reading ‘The politics of Hicks’

Visa cancellation ’spoiled’ Haneef investigation

Published
by
Robert Merkel
2 weeks, 5 days ago
in Crime, Howardia, Law, Security and Terrorism
. 14 Comments

It’s well known that the AFP harboured, and still harbour, strong suspicions about Mohammed Haneef. However, even if you make that assumption, the investigation and subsequent prosecution seems to have been stuffed up on several levels. Aside from the courtroom blunder that saw the criminal case against him collapse, I’ve been told by people who should know about these things that the AFP would have been much better off keeping him under surveillance - including in India, with the cooperation of Indian police - to see if they could turn up actual evidence that he’s anything other than a doctor with the misfortune to have the wrong relatives.
Today, a “source” is telling The Age that Kevin Andrews’ office prevented this from happening by revoking his visa, without even telling the AFP:

Senior public servants in a number of agencies in Canberra, including the police, were caught unawares when Mr Andrews suddenly announced that he was cancelling Dr Haneef’s visa.

“That spoiled it for the police,” the source said.

“It was done without any warning. The police knew that was an option but not that it was to be used so quickly or in such a cavalier fashion,” the source said.

One might be tempted to think this “source” is Keelty, or somebody close to him, making yet another attempt to blame somebody else. But, if accurate, the inescapable conclusion is that Kevin Andrews preferred political grandstanding in the leadup to an election over actually catching and convicting somebody who was genuinely thought to be a for-real terrorist.

Emails of terror!

Published
by
Kim
1 month ago
in Crime, Politics and Terrorism
. 50 Comments

All you need to know about the ridiculous proposition that employers should be able to access employees’ emails is summed up in this tagline - “Gillard: All Workers are Possible Terrorists”.

Is there any limit to the absurdity of intrusions into privacy and civil liberties in the name of national security?

Update: Terry O’Gorman from ACCL:

We have passed so many laws in the name of fighting terrorism that we’re at … serious risk of losing the balance between giving the intelligence services sufficient powers to fight terrorism while at the same time keeping longstanding and cherished civil liberties.

Anti-Emo rioting in Mexico

Published
by
Kim
1 month, 2 weeks ago
in Crime, Culture, Sociology and Video
. 32 Comments

I really don’t know what to make of this story.

Video via Xeni Jardin at Boing Boing.

Eight days a week

Published
by
Kim
1 month, 4 weeks ago
in Culture, Ethics, Law, Media and Women
. 113 Comments

How trashy can the press get? Are headlines like this remotely necessary? Is there any objective basis for the judgementality and scorn? Obviously, Heather Mills McCartney is a bit, erm, eccentric, but isn’t it also the case that having ridden the media wave to promote herself as some sort of post-Diana anti-landmines saint and then getting sucked into the Paul McCartney vortex, she might be forgiven for losing it just a little as the tide turned against her? How ethical is it to shoot, select and publish photos of her looking as kooky as possible?

I’ve never been able to understand the emotion behind the whole “McCartney fans despise anyone he marries, then canonise Linda, then despise anyone he marries” thing. It’s really twisted. It’s the politics of celebrity in hyperdrive, and some sort of postmodern public hate hour.

And where’s the critique of a British family law process which allows an elderly male judge to pronounce on whether someone was a “good wife”?

McCartney’s legal team apparently pressed for the judgement to be made public, while Mills’ lawyers opposed this on the grounds that it might materially affect the life of their daughter. Adjudicate that.

The undead access welfare Smartcard

Published
by
Robert Merkel
2 months ago
in Authoritarianism, Crime, Policy and Technology
. 13 Comments

Some of you may remember, amongst the fag-end brain farts of the Howard government, a program called the Access Card. This was supposed to magically cure welfare fraud and solve the IT problems of dozens of government departments by inflicting every Australian adult with something that looked like an ID card, contained all the information of an ID card, had onerous proof-of-identity requirements that were very much like an ID card, but was somehow not an ID card. Aside from the privacy implications of the enormous data registry behind the thing, the costs and benefits didn’t seem to stack up either.

But, according to a series of articles in Fin Review (behind their bloody paywall) over the past couple of days, a plan to rejig the federal government’s payments bureaucracy, possibly including smartcard technology, is formulating quietly in the various government departments. Joe Ludwig, Human Services Minister, has ruled out a compulsory smartcard, but in such a way as to leave plenty of wriggle room:
Continue reading ‘The undead access welfare Smartcard’

Haneef inquiry

Published
by
Robert Merkel
2 months ago
in Howardia, Law and Terrorism
. 34 Comments

The judicial inquiry into the botched Haneef investigation and prosecution has been announced.

One thing I’ve had intimated to me is that the AFP, and the Government, had additional information which they didn’t release at the time which justified their beliefs. It will be fascinating to see whether any such information (or even, just, the fact that such information existed) comes to light at the inquiry.

On the Howard government’s record with “secret intelligence information” to support their actions, I’m not holding my breath.

About time

Published
by
tigtog
2 months, 2 weeks ago
in Ethics, Government, Health, Law and Medicine
. 60 Comments

Today’s Australian:

A NATIONAL system of registration for doctors is being finalised by federal, state and territory governments, which will help prevent cases such as that of Jayant Patel in Queensland and the “Butcher of Bega” in NSW.

Federal Health Minister Nicola Roxon yesterday said the Council of Australian Governments was expected to sign off soon on a national registration system for health professionals.

“It will make a difference to ensure high standards across the whole country,” she said on ABC television. “It’s no solace to the people who are victims of the treatment for now but it needs to be proceeded with.”

The current system for registration of health professionals is done by medical boards in each state and territory. The COAG proposal is to replace this with a national process overseen by nine separate boards for all the different health professions.

Ms Roxon’s comments were made in relation to the so-called Butcher of Bega, deregistered former doctor Graeme Stephen Reeves, who allegedly performed unnecessary and sometimes horrific gynaecological procedures at Bega and Pambula hospitals on the NSW south coast over several months in 2002.

Self-regulation in most professions has been problematic, so it’s beyond time to have an external oversight system properly put in place for the health professions. It’s only shameful that it took a case as full of blatant system failures as that of Dr Reeves to finally get some action.

Interestingly, I hadn’t heard this before in all the recent coverage (emphasis mine):

The board maintains Mr Reeves was able to dodge the restriction because he moved from Sydney to take up a new post in Bega and at the time legislation prevented the board from passing on details of the ban to his new employer.

Really?

Kudos also to the NSW Government for planning to institute a system of mandatory reporting for medical personnel of medical misconduct by their colleagues. Such systems have been recommended by watchdog groups for years (decades?) of course, and who knows how many unnecessary harms could have been avoided if such systems had been in place for all that time, but at least it’s finally happening.

Next: regulating the specialist medical colleges so that they can no longer unreasonably inflate their incomes by maintaining an artificial scarcity of medical specialists. Isn’t competition meant to be healthy?

Crossposted from Hoyden About Town (related post by Lauredhel)

It’s unfair!… says small business

Published
by
Mark
2 months, 3 weeks ago
in Howardia, Industrial Relations, Law and Politics
. 46 Comments

Predictably, perhaps, the government’s move to reinstate unfair dismissal protections for employees in organisations with less than 100 staff is copping flak from small business reps (and lawyers who might reasonably be thought to be engaged in special pleading, since the intent of the changes is to make the process less legalistic).

Never mind the fact that there will be a twelve month probation period before the provisions apply, and that they won’t apply where there are less then fifteen employees. “Red tape!”, “uncertainty!”, “inflexibility!” are the cries. Julia Gillard and Craig Emerson are actually trying to make things easier for bosses - by removing lawyers from the process (as in the Queensland jurisdiction) to cut down costs and facilitate access, and by proposing a code for employers’ guidance. But the sticking point is apparently the suggestion that employees should be warned and given explicit details of what is lacking in their performance.

There’s something more going on here than meets the eye. Continue reading ‘It’s unfair!… says small business’

Nightclubs, capsicum spray, and statistics

Published
by
Robert Merkel
2 months, 3 weeks ago
in Crime, Law and Melbourne
. 45 Comments

Wonder no longer whether the Victorian police are using more capsicum spray (as speculated on earlier). According to an Age report on violence in Melbourne’s CBD, its use has become increasingly routine:

Police Association assistant secretary Inspector Bruce McKenzie said the force was under siege and increasingly forced to use capsicum spray to quell brawls in the city.

“As far as capsicum spray goes, I don’t know what our members ever did without it, because we use gallons of the stuff,” Mr McKenzie said.

Continue reading ‘Nightclubs, capsicum spray, and statistics’