A Journal of Australian Law

Charges against Haneef dropped

2007-07-27T17:43:00.000+10:30

Media release here: http://www.cdpp.gov.au/Media/Releases/20070727-Haneef.pdf (via)

Apparently, the Minister for migration, though having revoked his visa, has sent him into community detention, rather than in conventional immigration detention. This means that he will be deported soon, since he is no longer held under charge. An apology from the Minister would be good, to restore the doctors' name.

More comments here, here and here

Pressured Haneef Investigator Dies

2007-07-27T09:45:00.000+10:30

Quote from news where one of the investigators on the Haneef case dies:

"One of the pressures that I haven't spoken about publicly is that one of the investigators dropped dead in the investigation room Monday last week, so the investigation team has been through a very emotional and stressful time."

If any one has forgotten, during the Tampa yellow invasion scare:

They also show the Government directed defence headquarters to put pressure on the navy to ensure that no one from SIEV 4, the boat at the centre of the ``children overboard'' affair about six weeks later, would ``ever'' be allowed to land on Christmas Island.

How about this event during children overboard affair:

So, once the truth is out on this, I think the concentration ought to be getting the message out to the Australian public as to what a tremendous job these young women and young men are doing for this country under a very great stress

Any one else see a pattern here?

It's the Government who's putting public servants under stress. I think the widow of the dead investigator would have a plausible case to bring against the Government here.

Relief for Haneef

2007-07-24T22:14:00.000+10:30

Government frees doctor

... oops. It's the Libyan Government.

Detention without being charged

2007-07-16T16:42:00.000+10:30

Some information about the Malaysian blogger who is detained without charge.

For an unknown reason, I'm not holding my breath for the Australian authorities to be preach the virtues human rights to the Asians today. Dr Haneef, for what it's worth, is now royally screwed. This is not to say I symphatize with him, lest I be mistaken as a reckless-symphatizer-of-a-reckless-supporter-of-~~cousins~~terrorists.

A Fair Go in Australia is as dead as Truth, Freedom and Justice in America.

Life is Tough When You Can't Tell One Politician from Another - Haneef Part 2

2007-07-15T12:31:00.000+10:30

Check out this article in the online paper:

Mr Rudd, who was briefed early yesterday, also praised the AFP for its work in a "complex" case.

I had to read the article twice because I thought they had made an error and quoted the A.G. Phil Ruddock but misattributed it to the opposition leader Kevin Rudd.

Haneef Charged With Recklessly Providing Support

2007-07-14T17:38:00.000+10:30

This just came in half an hour ago. Bloomberg reports:

``The charge is not one of having knowingly supported, but being reckless, and these offenses attract the possibility of very severe penalties,'' said Andrew Lynch, director of the terrorism and law project at the University of New South Wales. ``I think that is a fairly worrying state of affairs.''

I'm not sure if Australia can do any more to make itself less endearing to the Muslim countries around the world.

Surrender Your Judgement

2006-12-07T13:42:00.000+11:00

Here's something interesting I found.

Type into Google:

muslim surrender

And the first entry is about the Muslim Concept of Surrender to God

Now type into Google:

Jesus Surrender

The first entry points to "Surrending To Jesus".

How one chooses to surrender to ones faith is a matter of personal judgement, but you can see how a misguided leader can tell his flock to participate in suicide bombings, justification of bombings of abortion clinics, bombings of churches, invasion of countries.

The problem is inherently hard to solve though. How many times at work when you had to surrender your personal judgement because your boss told you to just "do it"? I do at least once a week, and I'd often say I'll do it, but under protest.

Whatever Happened to Mens Reas

2006-11-24T14:42:00.000+11:00

I'm shaking my head at this.

Teenage kids walks in front of a car, car swerves, annoyed driver grabs the girl by the arm and lectures her.

Now he's a registered sex offender.

http://worldnetdaily.com/news/article.asp?ARTICLE_ID=45104

technorati tags:mens-rea

Women Who Really Ask For It

2006-11-20T11:57:00.000+11:00

India Knight points out

In the real world there are predatory men with demented, damaged ideas about women. There are confused men who don’t understand the mixed messages many of us sometimes give out inadvertently — especially if we are young and confused ourselves, and have spent all night flirting massively only to shriek with shock and disgust if the object of our flirtation dares to lunge. There are men who believe what they see on telly, online and in their silly little magazines — that all women, everywhere, are gagging for it.

The grand mufti in Australia got into a heap of trouble for saying something very similar, with politicians from both major parties asking him to resign.

Sometimes, one has to wonder who is actually taking into account the interests of young women when giving advice about being careful in how they dress?

List of Job Opportunities for Migrant Doctors in New Zealand

2006-08-17T18:51:00.000+10:30

For doctors thinking about migrating to New Zealand. After speaking with a few migrant doctors who lived in New Zealand for several years, here's a comprehensive list of job opportunities available if you are not trained in Australia, New Zealand or the U.S.:

-- begin list --

-- end list --

A parking ticket or breach of international law?

2006-06-08T11:31:00.000+10:30

(Reproduced with permission from The Free Times Independent - Warwick QLD)

A parking ticket or breach of international law?

By: David Dawson

Speeding tickets bring out all kinds of excuses - some people claim that they were running late, while some plead for mercy. Others get more creative.

The Warwick District Court received an interesting submission last week, when Warwick resident David Drinan claimed that the judge presiding over the case and indeed, vast sections of Australian legislation were violating international law. He also said that the appointment of the magistrates and judges who had sentenced him and presided over his appeal were invalid.

Mr Drinan, a former One Nation candidate for the district, was appealing a speeding ticket, after an incident on the 17th of October 2004. He was clocked at driving 119 km/h while in a 100 km/h zone. Mr Drinan’s submission claims that all motor traffic acts have no basis in Australian law, as after the treaty of Versailles Australia should have enacted it’s own laws rather than adopting British ones. The reasoning
behind it was a little more complex.

His submission stated that “the Constitution of the State of Queensland... made for the furtherance of the colonial administration... ceased to have legal effect within Queensland upon the attainment of separate Australian legal sovereignty.”

He cited a treaty made by the now defunct League of Nations in 1919, and a vast number of legislative documents and Acts.

One may argue that since the League of Nations has been disbanded, their laws no longer have any effect, though Mr Drinan’s submission had an answer to this.

The submission said that although the Australian Government had previously used a piece of legislation called Commonwealth of Australia Constitution Act (1901), (which Mr Drinan says is a British piece of legislation) to enter into international treaties, the use of this legislation was rejected by the United Nations because it was subordinate to the UK. Mr Drinan believes that this has forced the Australian Government to fall back to using their membership of the League of Nations for entering treaties.

He claimed that a 1919 League of Nations treaty guaranteed Australia separate legal sovereignty, rather than using British laws, which according to Mr Drinan, include motor traffic acts. His submission said that there had been no referendum to adopt the old British Constitution, nor to re-introduce a new Australian one.

Mr Drinan was unsuccessful in his attempts to have the case referred to the federal attorney general, with Senior District Court Judge Trafford-Walker throwing out the appeal.

Cop fines someone for speeding

2006-06-08T11:28:00.000+10:30

Revenge is the sweetest.

Follow story.

Can a medical doctor be referred to as Dr in a court of law?

2006-05-25T13:08:00.000+10:30

Anthony Morris QC clarifies

It is improper to use the title "doctor" in court if you hold a non-legal doctorate, or if you are a medical doctor or dentist.

Be careful how you salary sacrifice

2006-03-22T23:01:00.000+11:00

Issue
If an employer pays an employee's loan repayments, where the loan was taken out by the employee to purchase a laptop computer, will this be an exempt benefit under paragraph 58X(1)(a) of the Fringe Benefits Tax Assessment Act (1986) (FBTAA)?

Decision
No. The repayment of the employee's loan is not considered to be referable to the purchase of a laptop computer and is therefore not exempt under paragraph 58X(1)(a) of the FBTAA.

Moral
Even if an arrangement to me sounds like within the spirit of a FBT-exempt salary sacrifice arrangement, the ATO may chose not to grant FBT-exemption. The ATO has taken a position that a personal loan to buy a computer is different from lease payments on a computer.

Reference: ATO Interpretive Decision ATO ID 2005/68

The Speech Accent Archive

2006-03-19T23:47:00.000+11:00

(Non-legal post)

I frequently get e-mailed from doctors in India asking about migration to Australia.

One thing I always forget to mention is: don't underestimate the communication difficulties you are going to experience when you come to Australia.

The Indians doctors I have met here have vocabulary as fine as any university graduate in Australia. However, Australians have a hard time adjusting to the accent, and it takes a few years before you figure out how to make yourself easier to be understood.

There is an interesting free resource over here: The Speech Accent Archive.

This website allows users to compare the demographic and linguistic backgrounds of the speakers in order to determine which variables are key predictors of each accent. The speech accent archive demonstrates that accents are systematic rather than merely mistaken speech.

Have a listen and it may be helpful to help you identify which parts of your accent is hard on Australian ears.

Income Splitting Test Case

2005-12-20T09:43:00.000+11:00

Part IVA avoidance rules do not apply in Personal Services business where the husband does the majority of work, but the business is run as a Husband-Wife partnership. The court deemed that the wife running as a partner exposes her to personal liability, therefore she takes on an element of risk in accepting half the income.

ATO is pursuing other test cases. One involves discretionary trust distributions to the tax threshold limits of each beneficiary. Since when did tax minimization equates to tax avoidance?

Man offers to hang death row compatriot

2005-11-28T23:45:00.000+11:00

A 65 year old retired Australian has offered to hang the Nguyen Tuong Van, an Australian who was sentenced to death.

If this macabre scenario pushes ahead, could the retiree be charged with murder?

There are a limited number of crimes that the Australian authorities could prosecute even if the acts were conducted on foreign territory.

The ones that come to mind are:

Taking sex tours which engage in child sex

Fighting with the enemy against Australian armed forces in a war

Sending SPAM emails to Australians

Killing of an Australian, under the auspices of a foreign government? I don't know. Can someone enlighten me on this?

Mandatory Death Sentence for Australian

2005-11-26T22:45:00.000+11:00

Singapore's tough antidrug sentencing laws requires the judge to hand down a death sentence once guilt is established. Mitigating facts are not considered at all. Remonstrations to the Government wouldn't work. PM H.S Lee can't be seen to pressure the Courts over this.

The story of Nguyen Tuong Van is one most tragic, and almost melodramatic, given that he had smuggled heroin to pay off his twin brother's drug related debt. As a country that prides itself on its Confucian values, the President of Singapore could have granted a pardon for the unusual circumstances surrounding the case of a man who took a stupid risk to save his twin brother.

The Australian Government, sensing that there is no sufficient public support for Nguyen, is not pressing for ICJ to intervene, arguing that Singapore is only a signatory to the drug trafficking related treaty, and not the rest.¹

Lex Lasry QC makes a point that it was up to Singapore to decide whether it would consent to accept the International Court's jurisdiction. It is up to the Australian government to put the ball in Singapore's court.

Mr Howard doesn't seem to have any principled stand against the use of the death penalty.²

Here is the PM's track record so far:

Supports the death penalty being meted out to the Bali bombers (who were Indonesian)

Given greenlight for the State Liberal parties to use the death penalty as an election policy

Intended to intervene if Schapelle Corby was given the death penalty.

New South Wales Countril for Civil Liberties has a more detailed discussion about John Howard and his position on the death penalty.

¹Contrast this to the attention the government Australia had given to Schapelle Corby, who was jailed in Bali on a similar charge.

²There is no death penalty in Australia, and the Australian police were to cooperate with police in other countries up to the point where assistance will lead to a death sentence.

Australia Transports Criminal To Serbia

2005-11-25T04:23:00.000+11:00

It has to happen some day. An Australian Permanent Resident since he was two, and who never set foot in Serbia has been deported to Serbia after a series of criminal convictions.

The man, a drug addict, had been jailed for drug-related burglary several times, and the Minister of Immigration has stripped Robert Jovicic of his permanent residency. The Department of Immigration had sent him to Serbia, because they figured Serbia would let him stay there as his parents were born in Serbia. Serbian authorities, after examining his papers, decided that he wasn't entitled to stay. Mr Jovicic is officially stateless.

Unable to speak the language and having run out of money, he has been sleeping at the Australian Embassy's gates.

For the past two cold winter nights in Belgrade, Mr Jovicic has camped outside the Australian embassy in a desperate attempt to be returned to Melbourne.

Brrrr...

A lawyer said on the radio that there is basis for Mr Jovicic to be able to reside in Australia. If I remember correctly, the lawyer argued he is substantially an Australian, having integrated into Australian society and way of life [sic]. If the court accepts this argument, then we are looking down at the barrel of another compensation case for wrongful deportation.

Migrants to Australia not using their qualifications

2005-11-08T13:58:00.000+11:00

The Australian reports that Rural migration program failing

A federal Government review of its expansion of the general skilled migration program has found that while overall employment among the foreign worker population is high, many are not using their qualifications. [emphasis mine]

I personally know of professional web developers retraining as acupuncturists, mechanical engineers doing handyman's job, electrical engineers driving courier vans. These people find it difficult because
1) there aren't enough opportunities for their kind of work in rural communities
2) Australian employers are generally worried about hiring the wrong kind of people. The more the Government talks about unfair dismissal laws, the worse the perception gets among employers that they can't fire their employees.

Anti-Terrorism Bill 2005 No. , 2005

2005-11-04T10:29:00.000+11:00

There's a thread of discussion over at Bruce Schneier's website.

Suprisingly, no one discussed how a legislation like this can be used by a fading political leader to hang on to power. I have seen the effect of routine political sweeps under anti-terror legislation can have political comment in a country. Philip Ruddock said that sedition laws will be reviewed. No one should estimate the ability of a political leader to turn a country into chaos. Witness Robert Mugabe in Zimbabwe. Once the food basket of Africa, Zimbabwe now has man-made famine. It is pure hubris if Australian politicians think that this will never happen in Australia. Having these laws in place gives leaders sufficient self-justification that would have otherwise not happen.

On Radio National, an ex-Federal Judge said that the proposed judicial review only ensures that the process was correct, not to ascertain that the person who was detained was in fact the right person, and the person detained is not entitled to know why he was detained, and is therefore unable to mount a defense. These are sweeping powers. If the Department of Immigration can goof up, so can the police.

A Punjab Migrant Doctor's Tale

2005-10-27T18:30:00.000+10:30

In "Passage to Wudinna", from the Focus magazine November 2005 (an Australian doctors magazine), the real life story of a Punjab doctor who came with his family to Australia only to leave rather quickly was recounted by the doctor himself.

It is hard to describe what this decision means to us. Before this, the question was "will I or won't I?", Now it is happening to us. Such a move requires great sacrifice. My mother, who is 66, will be left alone. I also have to leave behind a huge practice and a social network built up over many years.

I am first told that I will join a practice at Woomera, then a month later I was told I will be able to join a practice in Adelaide. All of sudden I get a call from my employer that I will be posted instead to Wudinna, on the Eyre Penisula.

We finally reach Adelaide. We are taken to Motel Granada. I have to carry all our luggage to our rooms; In Inda we have so many servants that we do not pick up even a small bag.

My boss takes me to the place where my future residence is still being renovated. It is slight out of town. There are no other homes nearby.

It looks like as if we are visiting a scene from a horror film. My whole family is demoralised.

The next day, Australia Day, I have to see only 5-6 patients the whole day. It is very boring.

Thre is no source of entertainment - no TV channels of interest. I am called in to attend to a patient that night, and I have to take the entire family with me, as no one wants to stay in that place without me.
In India, a lday alone in a far-flung house is an open invitation to rapists, robbers and other bad elements ...

We decide that night that we shall not stay here for three months; we wil go back in one month only.

Only one thing I can say - pure culture shock.

Doctors leaving India will leave behind:

a) all their servants,
b) most of your status - your patients do not fear you, and some can be very rude to you
c) patients who pay you nothing but expect everything (this is known as bulk billing)
d) big cities - Australia wants foreign doctors because they can compel migrant doctors to work in remote towns, akin to conscription. There aren't enough Australian doctors who want to work in these places, and for the politicians, getting doctors out to the bush is essential if they want to stay in office.
e) being a boss. You will work and earn money for somebody else, for possibly many years until you get your bearings.

But on the other hand, Australia is generally safe. There is a welfare system for those who could not find work, so people don't have to steal or rob.

The story also said that a migration agent said he could not migrate to Australia but for $500, he could see if "he could do something". Don't buy into this bullshit. You can contact the Department of Immigration directly and lodge forms yourself. There is no preferential treatment if you go through a migration agent. By the way, Australia is still short of doctors, doctors will have no problem in getting a visa.

If you are thinking about migrating and concerned, best thing to do is to find out from other migrant doctors. Alternatively, post your questions to me and I'll try my best to answer them.

Million Dollar Quiz and Tax

2005-10-20T11:07:00.000+10:30

The Tax Office wasn't going to comment on how much tax Rob Fulton owes following his win in the popular TV game show "Who wants to be a Millionaire".

The tax rate in Australia is 48.5% and 1.5% medicare. Rob could see up to half his winnings being pocketed by the Treasurer, and hopefully shared with the other 17 million Australians.

Under Australian Tax law, Rob has two ways to find out how much he owes:

1. He can obtain a Private Binding Ruling, detailing legal points for and against why he should not be taxed. For such a large winnings, he'll need to get a pretty good tax lawyer
2. He can pay up 50% of his winnings
3. He can elect not to pay, but risk an audit, which under Australia's tough self assessment laws can see him paying 50% penalty plus 14% interest. This could easily add up to more than 75% of his winnings.

The problem is Rob has been diligently preparing for his quiz shows for several years by studying magazines and reference books. Now one could term his winning as speculative but taxable income nontheless, similar to day traders who speculate on the stock market. In contrast, winnings due to raffles aren't taxable.

On the other hand, Rob could argue that he was able to participate in the game show only by chance, and all those studying would have come to nothing.

Maybe the Capital Gains tax would apply, since he has to give back a cheque worth $468,000 in order to take a chance on the million dollars.

Who knows? The tax legislation is heavy enough to kill someone.

Howard's quote of the day

2005-10-10T11:38:00.000+10:30

WORKERS who believe they are being pressured to sign unfair new contracts "can always look for another job", Prime Minister John Howard said yesterday.

Let them eat cake - Mary Antoinette

Some how this doesn't gel with my understanding why politicians need lots of tax-payer funded superannuation. It's not like they are conscripted. Hey, if you don't like the money, get a real job.

Immigration reform reaches a dead end - Opinion - smh.com.au

2005-10-08T10:02:00.000+10:30

George Newhouse, one of the lawyers representing Vivian Alvarez and Cornelia Rau, writes on further changes to the Migration Act

With legal aid and pro-bono lawyers exposed to tens or hundreds of thousands of dollars in penalties, many will be forced to leave applicants unrepresented.

No wonder the minister Vanstone says she is not responsible. The Prime Minister effectively dictates the kind of policies that gives the DIMIA carte blanche.

Where can I get a copy of the Australian Law?

2005-10-07T11:26:00.000+10:30

Lots of web searches seem to end up here about finding out more about Australian Law.

If you are looking for legislation, then there are State legislation, and Federal legislation.

For Federal legislation, go to ComLaw, and in the search box titled "Find current law", type in the Title - "Income Tax Act" and hit search. You can also search for a phrase in the second box below. Try "Border protection".

The Queensland state legislation can be found here. Select the Search tab, and check "Acts as passed", and type in your search phrase. Trying "speeding".

Alternately click on the Legislation tab on top. It's organized like they would appear in shelves of your friendly lawyer.

Government wearing two hats

2005-09-08T11:23:00.000+10:30

The Government is both a majority shareholder of Telstra and a regulator of Telstra. So when Telstra informs the Government of market sensitive news, did Telstra also have an obligation to inform the rest of the shareholders?

Issues:

1. It could be argued that Telstra is negotiating with the Government playing it's role as the regulator. However, clearly talking about having to borrow money to pay dividends doesn't sound like regulatory issues to me.

2. The other option is to argue that the information is already readily available, and that financial analysts could already deduce that information from public records.

3. Now if there were additional information that was made available to the Government and the Government is acting on the information to sell its shares to the disadvantage of other people in the market, does this constitute as insider-trading?

4. The government argues that it is illegal for them to reveal the substance of discussion to the general public, under advice from the Department of Finance.

"The reality is that according to the advice I have from the Department of Finance, and from my own department, it would have been against the law for the Government to have done so," he told Parliament.

How come he didn't ask the Department of Attorney General. I thought that when two laws contradict, the newer law has legal effect. Apparently, the information was "... provided to the Government in accordance with the Telstra Corporation Act".
(I'll look these up later)

Oooh, so many questions. Let's so not-have-another-enquiry-this-time-because-no-heads-are-going-to-roll-and-maybe-someone-will-get-a-plum-ambassador-appointment-again.

Arabic Trojan butts into porn surfing - vnunet.com

2005-09-06T13:43:00.000+10:30

Security experts today issued a warning after detecting a malicious Trojan horse which tries to interrupt the surfing of adult websites by displaying messages from the Koran.
At last, the Christian Right and the Muslims can find some common ground.

Hurricane Katrina

2005-09-05T11:12:00.000+10:30

There's been a lot of criticism on the Bush government's response to Hurricane Katrina. For example, "people didn't leave because they didn't have cars". However, I just don't think the government is alone to blame here.
In Asia, if people relied on the government to save them, well, that's as reliable as waiting for God. A Muslim school teacher used to tell me that the Prophet Muhammad said: "Have faith in God, but you should still tie-down your cow to the fence post".
Of the disabled people who were left behind, I want to know what their neighbours did. Did they just leave these people behind to die?

Policy and taxes

2005-09-03T21:00:00.000+10:30

The comments to John Quiggin's blog on simplifying taxes reinforce how taxation is becomes a tool of social policy.

There were some snide comments about the 2% tax on revenue proposed by Pauline Hanson. Let's say if they manage to get around the problem of not taxing financial transactions by banks, the end result would be very large businesses, which benefit from lower costs by avoiding tax cascading. However, the end result would be very much like the old Australia, where Australia becomes a workers paradise, in contrast to UK - a nation of shopkeepers. I can imagine the government of the day then pandering to the workers instead of chanting industrial reform.

Play that funky music, white boy

2005-09-02T16:33:00.000+10:30

Michael Sippey writeswrites:

New Orleans is under water, gas is headed to $4 a gallon, Iraq's a fucking mess and our fearless leader is strumming guitars with country stars.

Reminds me of Indonesia's last President, who preferred to spend time cooking rather than meeting foreign emisaries.

Less Laws

2005-08-29T10:19:00.000+10:30

DownsizeDC comes up with Read the Bills Act of 2005 .

Every member of the House and Senate must sign a sworn affidavit, under penalty of perjury, that he or she has attentively either personally read, or heard read, the complete bill to be voted on

via Shutup and Code

New Rules of Traffic Engineering

2005-08-27T20:44:00.000+10:30

Wired.com reports:

Monderman is one of the leaders of a new breed of traffic engineer - equal parts urban designer, social scientist, civil engineer, and psychologist. The approach is radically counterintuitive: Build roads that seem dangerous, and they'll be safer

via Brian Marick

Skilled migrant program flawed

2005-08-27T13:56:00.000+10:30

A report twenty years too late:

Skilled migrants who come to Australia are ending up as taxi drivers because of major flaws in the skilled migrant program, an independent inquiry has found.

I personally know of a few engineers who work in Fish and Chips shops and run home delivery trucks, because of difficulty securing work as engineers.

Herald Sun: Howard praises journos [27aug05]

2005-08-27T12:53:00.000+10:30

Howard praises journos for not revealing sources, who are facing contempt of court action.

Whatever happened to upholding the Rule of Law? Can we be selective about the Law? What happens if the Law requires one to do things immoral, like refuse medical treatment to mentally ill people if they were deemed by Migration Officials to be "illegal"?

Wifi: Public Infrastructure for the new century?

2005-08-23T17:15:00.000+10:30

A Venture Capitalist mulls whether Wifi should be public infrastructure?, and points to farmers in rural Oregon already have wifi. Over here in Australia, with vast distances it certainly makes a better case than rolling out broadband to every farming household, and (my guess) wouldn't cost close to the AUD$3 billion that Telstra claims it needs.

via Wesner Moise

A-levels becoming 'just a leaving certificate'

2005-08-21T13:54:00.000+10:30

The Guardian reports in the UK, that A-levels becoming 'just a leaving certificate', because of it's inability to differentiate between the good and the brightest.

However, the principle behind allocating university places should not depend on making it available to the brightest, but those who are able to complete the course. Given that A-levels is pretty objective as to the capability of school leavers, we can pretty much bunk the view that kids are getting dumber. As a matter of fact, they are getting smarter thanks to more effective teaching and a healthy economy that is more conducive to learning.

This is the paradox of workforce shortages, on one hand you have able people who can't get into medicine after leaving high-school, and on the other hand you have a society which is terribly short of doctors.

If the retirees of tomorrow find they have mortgage their homes to pay for healthcare, they have only themselves to blame for not funding medical places at universities.

Financing health care -| Economist.com

2005-08-19T13:29:00.000+10:30

The Economist has a writeup on British healthonomics.

This sounds much like the system that's under scrutiny by the Morris enquiry in Queensland where a regional hospital tried to perform difficult surgeries because they bring in more funds, despite the hospital being ill-equipped / ill-qualified to perform these tasks.

The following facts are related:
1) there aren't enough doctors,
2) there never enough places for people who want to study medicine.
3) ability to practice medicine is tightly regulated
4) healthcare is expensive

I read that in Hong Kong, (2) is getting worse because doctors are leaving university hospitals for the private sector.

Given that there is such an immediate crisis in the doctor-shortage, perhaps it's time for the government to start to actively seek to accredit overseas medical colleges, so that there is more freedom for doctors to move from one country to another.

More on Cornelia Rau

2005-08-17T15:18:00.000+10:30

More clippings of Cornelia Rau's detention here.

Migrants can struggle to get jobs

2005-08-17T14:56:00.000+10:30

The Age reports migrants can find it extremely difficult to find work even though there are shortages.

Calls are growing louder to boost the number of skilled migrants to help solve our skill shortages. But migrants will only help stem shortages if they secure work in areas in which they are qualified. And many find that even in fields of supposed shortages, they are struggling to do this.

Migrants are not able to access unemployment benefits for their first two years in Australia. Unfortunately, this also means they can't be helped by Government-funded recruitment agencies like the Job Network.

On top of this, many jobs in Australia are highly regulated. Plumbers, electricians require Australian-recognized qualifications before they can operate.

An article on a job placements firm in New South Wales says basically the same thing: "Many migrants also face the problem of never having been exposed to Australian standards. This is a very legitimate reason for Australian employers to prefer candidates with relevant exposure to Australian standards". (Link to article)

If you are a migrant engineer, please share with us your experience here.

Skilled Migrants Might Not Get Jobs

2005-08-17T14:33:00.000+10:30

In this FT.com news, a small business said that he is reluctant to hire because fears of the new hires being "not good".

However, the immigration drive has been greeted with scepticism in some quarters. One of the groups targeted by the immigration drive is to be automotive electricians. But Deylan Barrie, the managing director of Barrie's Auto Electrics and himself an immigrant, agrees there is an urgent shortage of electricians but he says he would be reluctant to hire someone from a government list of approved immigrants.

This restates my previous assertion that potential skilled migrants to Australia should be very careful before selling up and moving to Australia. Employers in Australia are very risk averse because it can get very expensive if new employees do not hit the ground running. Try getting a work visa first, and try to find a job.

I know of a Human Resources specialist from South Africa (who is white, by the way) who is running of all things his own tyre shop here in Australia, after obtaining an Australian IT degree. No lack of qualifications here, just not enough employers who would give new Australians a chance.

Hunt for migrant workers

2005-08-16T11:44:00.000+10:30

Australia launches another drive for skilled migration, but the problem isn't with the government. It's with the employers.

I personally know of several experienced engineers from overseas who are still looking for work two years on after settling in Australia. Australian employers are extremely wary of overseas talent, and often want people with "Australian" experience. A catch-22 situation for migrants.

The situation is probably the same for all industries other than health, as the government usually employs migrant doctors by imposing severe restrictions on how migrant doctors can practice.

The government could first start a register of unemployed qualified professionals who are already resident in Australia and give these people a break they need to get into the workforce. A buddy system can help. For instance, employers who already have an engineer from say Sri Lanka should look up in the register for more Sri Lankans, and leverage the existing engineer's experience to orientate the new hire.

Overseas Doctor marrying Australian Citizen

2005-08-14T14:57:00.000+10:30

Overseas doctors marrying an Australian citizen should give some consideration to their potential job prospects in Australia.

Under Section 19AB of the Health Insurance Act, migrant doctors can only provide government subsidized healthcare if they live in the outback for 10 years. Australia has an oversupply of doctors living in towns and cities but the situation in the "bush" is dire. There are virtually no job prospects for their spouses (especially if they are professionals) in the bush, where town with populations of 10,000 are considered large regional centres.

The government health subsidy works out to about 70% of the standard GP consultation. If a GP wishes to forgo that 70% they are virtually non-competitive in a city, where some bulk-billing clinics charge the patient nothing, instead making their money only on government subsidy alone.

However, there is a leeway here. If both the doctor and his/her spouse are migrating to Australia, and the spouse has a skill which there is shortage in Australia, e.g. Civil Engineer, then the doctor can get an exemption and work in the city.

Seafood worth $150,000 stolen

2005-08-08T12:10:00.000+10:30

The Herald Sun reports Seafood worth $150,000 stolen. If there is some genius behind the madness of stealing something that would spoil so quickly, I would like to know it.

Australian Immigration Departmental statement on Hwang case

2005-07-28T11:34:00.000+10:30

The Immigration department finds a woman who entered Australia on a false passport, takes her into detention. Then assuming that her two children were not entitled to reside in Australia, plucked them from their classrooms and put them in detention with their mother.

Horror of horrors, the government released them because these kids were Australian citizens. Kids missed school 4 months, and relatives commented that the kids were emotionally different now, having seen people self-mutiliate themselves in detention.

In the Australian Immigration Media Release - Departmental statement on Hwang case, the Department stated that the children's status came to light after the PM asked for the status of all women and children in detention be reviewed.

In light of these events, I believe the government should hand over the task of deciding who gets detained to courts. Loss of liberty is not a decision to be made by an administrative arm of government. The onus is on the immigration department to prove that these people have to be detained to a court, rather than these people proving to the court that they deserve to be freed. This is a basic principle of justice.

Illegal migrants

2005-07-18T13:15:00.000+10:30

People smuggling/trafficking/employment agencies are the flavour of the day:

Smuggling asylum seekers into Australia - Jailed. Most of these people are fleeing their country due to persecution, and 353 drowned when the boat they were put in sank. This is not rhetoric, the Australian government usually finds in favour of these arrivees. These people take a risky boat journey because the Australian government makes it impossible to arrive by plane. Question: Who is the bastard here?

Illegal Indonesian workers in Malaysia - Hunting Malaysia's illegal migrants

Illegal Malaysian workers in UK - People smuggler jailed for 7 years

A couple of years ago, I was at one of the dockside restaurants at Sydney. Eyeballing the waiters, at least half of them look like Malaysian Chinese. One guy I spoke to came from Sabah (I didn't ask whether he was illegal or not). He was working as an IT professional at a Japanese bank at Malaysia's off shore banking centres (the name slips me now), and he's now working at a restaurant in Australia because conditions were better. These people are paid standard award wages by the way, and these people don't plan to stick around for ever, once they have some savings, they head back home.

Working without permit is illegal under Australia's laws. But, gee, you'd have to frame these folks as vermin you one can think of this as a crime. This reminds me of the Disney version of the Hunchback of Notre Dame, where the Judge Frollo persecuted illegal gypsy migrants.

As for Martin Moo - jailed for finding jobs for 300 people - sure he broke the law, but where was the crime? These people didn't arrive on unsafe boats, but came through international flights through Heathrow. The press release from the National Crime Squad mentions "immigrants would often pay large sums of money to individuals who would then facilitate their travel to the UK and their employment here". Well, in Australia, the government hospitals pay the recruitment agencies to recruit doctors from countries which have worse doctor-shortages. Who is the criminal here?

The laws are really bent if it is legal for a Japanese bank to set up shop overseas, pay university graduates less money than a waiter in Australia, but make it illegal for an Australian shopkeeper to hire off-shore workers at award wages.

Alert waitress saves girl

2005-07-04T12:57:00.000+10:30

The US story of how a alert waitress saved an 8-year-old girl from a serial sex offender is so heart warming.

Contrast this with the Morris Inquiry into the Bundaberg Hospital deaths, where a surgeon was (allegedly) linked to at least 8 deaths.

Commissioner: All right. Did you ask Dr Miach about the concerns raised by Nurse Hoffman?
Dr Leck: No.
Commissioner:Why not?
Dr Leck: Because that isn't my role.
Commissioner:I see?
Dr Leck: I mean-----
Commissioner:It doesn't worry you that patients might be dying or that
15-year-old boys might be losing their legs. It's not your role to see whether there might be some truth in these allegations?
Dr Leck: It's the role of the Director of Medical Services in terms of clinical issues. I'm not a clinician.

Thank goodness there are people like Deahn around.

Migration law ruled Rau case

2005-05-17T11:02:00.000+10:30

If the authorities believe one is an illegal migrant, but the doctors believe the person is mentally ill, what does the law say?
a) Put the person under migration detention, or
b) Put the person in a mental health clinic

The Townsville Bulletin reports Migration law ruled Rau case:

"IMMIGRATION authorities detained mentally ill Australian Cornelia Rau in solitary confinement for eight weeks, under a detention policy that demands that migration law take priority over doctors' advice."

Why such a ridiculous law? Well, A lot of long-term detainees develop mental illness, and this is the only way the government can keep the damage the government has been doing to other human beings out-of-sight of the general public.

Woman deported after up to 18 years in Aust. 07/05/2005. ABC News Online

2005-05-07T08:12:00.000+10:30

More information about the missing deported Filipino here: her name is Vivian Solon, and the authorities think she might be in Cebu or Tacloban.

This woman lived legally in Australia for 18 years and they deported her. I'm going to buy myself a bracelet. If I get hit by a car and get amnesia, I bet you I'll get deported too, because I don't "look" Australian.

Filipino woman wrongfully deported from Australia still missing

2005-05-07T00:29:00.000+10:30

Another sad story. A Filipino woman with mental illness was wrongfully deported from Australia, even though she has residency rights as she was married to an Australian, and has a son here. She had a car accident, and didn't pick her son up from child care. She told the police that she was a sex slave and was deported in mid 2001.

If there are Filipino readers, can you please write to the papers, and see if she can be tracked down and reunited with her family here? She identified herself to the police as Vivian Alvarez, but she is listed as Vivian Wilson in the missing persons register in Australia.

Geoffrey Hills - Courts are unlikely to find against James Hardie Industries

2005-04-19T12:12:00.000+10:30

Geoffrey Hills reminds us of how the notion of corporate veil was established the Salomon's case in 19th century England, and questions whether corporate law should give way to moral law.

The fundamental aims of tort and corporations law are in conflict. It has been observed that protection of the vulnerable is the “golden thread” and “core moral concern” of Australian tort law, but the courts also recognise the central economic importance of corporations law. At a moral level, there could hardly be a case in which responsible entities were more deserving of being stripped of the protection offered them by the separate entity doctrine of corporations law than one in which people have suffered terminal illness through the torfeasors’ concealment with knowledge of the real risks of their product.

This is a very well written article, and I would have to quote it beyond reasonable grounds of fair use, I suggest you have a read of it yourself. In particular, it discusses the scope of limited liability and acts of good faith.

References

CSR v Wren - expanded proximity test

Long term low income earners and housing

2005-04-17T14:24:00.000+10:30

Phil Greenspun write about the impact of immigration on minimal wages in the US.

There are plenty of people from poor countries who think that working 60-70 hours per week for $7.50/hour is acceptable, especially if there are opportunities for their children to do better. As long as the immigrants are streaming into the U.S. it seems unlikely that wages for the unskilled will rise.

He also offers some practical views on the long term implications, and how to tackle the problems:

With wages for low-skill workers set according to wages in India and China the living styles of many unskilled workers in America will have to be more like those in India and China.

Low-wage workers in America won't be able to afford housing constructed with currently prevailing methods.

If the Chinese can make a sleeping van for $10,000 (new) a low-wage worker could have transportation and minimal shelter at the same time.

Whom does the Law serve?

2005-04-11T22:12:00.000+10:30

Margo Kingston's Webdiary quotes P.F. Journey:

The westerners often forget that the Asian Society is still basically feudal, collective and hierarchical. The Laws are there to serve the Power, not to check the Power. I have a deep suspicion that if we look closely enough this is also the case in the West, except that the West is very much more polished and sophisticated in hiding this whereas the Asians are blatant.

Living away from home allowance

2005-04-06T08:41:00.000+10:30

If you live far away from your place of employment, your employer can pay you a living away from home allowance for the inconvenience (see Compliance Toolkit from ATO). But if you pay for your own accommodation under this situation, then under FCT v Green and FCT v Toms, your accommodation is private expense, and is not deductible.

Another craziness in our ol' tax system.

More on Barristerial Immunity

2005-04-05T13:07:00.000+10:30

Janet Albretchtsen argues in The Australian that it is the role of the Parliament to make the public policy decision with regard to immunity of barristers from negligence claims, suggesting that the High Court should not make "judicial adventures".

I'd argue not so. The High Court, being a separate arm of government is entitled to make rules that uphold and regulate the conduct of its members such that their institution is held in highest regard by the members of the public. Failure to do so at the very highest levels only leads to the opinion that the legal system is unfit to run itself, and can only be changed by the Government.

The High Court could have ruled that D'Orta-Ekenaike vs Victorian Legal Aid & Anor [2004] HCA was non-justiciable, as there is going to be a perception of a conflict of interest, and defer to Parliament to make a decision. The Court has done this with environmental issues on the basis that this is a complex issue involving many public interests. Why not this one?

A former President of the NSW Bar Association suggested that incompetence of counsel could be established as grounds of appeal in civil cases, as a way of keeping barristerial immunity while "getting the results right". (via Adam Barnes)

If anyone cares to remember, Equity was created to overcome the harshness of the Common Law. To get the results right. Maybe it's time to bring that back.

National water trading and taxation - Australian Water Summit - November 2004

2005-04-04T17:10:00.000+10:30

For those who are interested in water trading in Australia, the Australian Taxation Office has a speech on its website regarding tax laws with respect to trading of water entitlements.

Points of interest:

When water entitlement is leased, this is characterised as a form of rent.

there would be insufficient nexus between the income derived from a temporary transfer of water entitlements and the produce of the primary production business i.e. not primary production income

if whole of water entitlement is leased, then person is not carrying out a primary production business (but what if the land is turned into grazing instead?)

compensation padi by government for cancellation of water entitlements is ordinary income, since it replaces loss of production from land. But if owner wasn't using the water entitlement for income producing activities, then this might be treated as CGT

Tax laws wouldn't have to be so complex if there aren't so many industry-specific tax-breaks. In particular look at how sometimes compensation from water trading is treated as Capital Gains while at other times it is ordinary income.

Corporate Ethics

2005-03-23T15:00:00.000+11:00

A story on corporate money being used to candlestinely influence local council election results, through supporting astroturfed organisations. Can this be legal?

Here Westfield (for US readers, yes they own the WTC) is accused of running a fake grassroots campaign against other property development companies, and tainting a competitor's project with made-up controversy.

(via Trevor Cook)

Detainees converting to Christianity to gain review of cases

2005-03-21T20:55:00.000+11:00

In the news today, apparently detained refugees are converting from Islam to Christianity in order to get their application reviewed.

At stake here is the apparent prosecution of Muslims who have converted to Christianity, a prospect which they face should they return to their homelands. To be honest, I really don't know what to think here.

No more anonymous political opinions in Australian Blogs

2005-03-17T10:35:00.000+11:00

In this article - Bloggers face clampdown - Misha Schubert writes:

Bloggers and spammers could be forced to put their names to political commentary in a bid to close a loophole in the nation's electoral laws

(Via John Quiggin)

The relevant laws applicable are Commonwealth Electoral Act 1918 (Cth) ss 287, 328, and 331.

Section 287 defines "advertisements relates to election if they contain electoral matter". Electoral matter means "matter which is intended or likely to affect voting in an election", and I suppose would include forms of political commentary, including satire.

The term "advertisement" itself, however, is not defined in legislation. Turning to the online dictionary: 2. A notice, such as a poster or a paid announcement in the print, broadcast, or electronic media, designed to attract public attention or patronage. There is no requirement that the person who made the advertisement to have any direct relationship to the product itself. However, it will be difficult to impress a court that a cartoon drawn by Leahy for instance would fit the description of an "advertisement" in the ordinary sense of the word, unless he was closely affiliated with the political party the cartoon speaks for.

Section 328 requires all advertisements to carry the name and address of the person who authorized the advertisement, and the name of the printer.

Section 331 requires advertisements in publications or journals which contain electoral matter to include the word "advertisement" in the heading. This applies regardless of whether consideration was given or not, and regardless of whether the publication is sold or given free.

There are two questions arising from these matters:

a) whether the websites are more akin to opinion pieces in newspapers, or more like political advertisements, or more like a letters to the editor section in a newspaper.

b) whether we are trying to shoehorn something as formless as websites into the known forms of publications. After all, all commentary seek to influence opinions and actions.

Mayor wants to fine weatherforecasters for wrong forecasts

2005-03-13T13:35:00.000+11:00

Apologies for not posting a law article. This news report caught my attention today. The best way for the weather forecasters to get around the problem is to express their forecasts in the following manner:

80% of probability of a sunny day.
15% chance of rain.
2% chance of snow.
1% chance of others.

There.

Barristers keep immunity to lawsuits

2005-03-11T14:40:00.000+11:00

The High Court has handed down a decision which grants immunity for barristers and solicitor-advocates from being sued, however negligent their conduct. For the complete text of the judgement, refer to D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 link.

In this news report, the Victorian Bar Council chairman Ross Ray, QC, was quoted to have lauded the decision:

"It's not a decision to protect the advocate, it's a decision to protect the justice system," he said.

"The beneficiary of this is the administration of justice." [emphasis mine]

A little background: a man is was trying to sue his lawyers for allegedly giving negligent advice on a rape charge, which ended up with him being convicted and jailed. (Before you get worked up, these lawyers are good guys - they're from LegalAid).

Personally, I agree with the opinion of the dissenting judge Kirby J. I fear that while oiling the engines of the administration of justice, if the legal system is not seen to dispense justice, it will only serve to weaken the institution itself. Ultimately, an institution is made up of only people. It's authority is only derived by the respect of other people have for it.¹ Ironically, it is now up to legislators to act to protect the justice system.

¹Witness how the IRA has gone from being the defender of the Catholics to being the pariah of society in such quick time.

Links to other opinions on this topic:
FLAC, Barristerial Immunity , 2004
Richard Ackland, Majority Ruling gives Minnows Little Chance

Movie about lawyers

2005-02-24T12:01:00.000+11:00

Heard on the radio Mel Gibson is negotiating rights to make a movie about Australian lawyers. Move over Crocodile Dundee.

(OK, it's not all about Australian lawyers, it's about James Hardie Co. and the little guy who took them on in the legal system).

Parliamentary Question Time

2005-02-18T12:25:00.000+11:00

There has been a lot of hair splitting over what is interview and what amounts to interrogation.

An interview is when the Prime Minister is able to get the defense minister to lie on his behalf. An interrogation is when the Defense Minister is forced to lie on behalf of the Prime Minister.

There. Simple.

(Update 11 March 2005): Saying "rendering" is not "interrogation" is like saying euthanasia is not suicide. Nice words. Same bite.

Non-Laws

2005-02-17T14:00:00.000+11:00

Laws are only one aspect which governs how we conduct ourselves. Just because it is legal doesn't mean something is right, or the even best option.

Example 1: the so-called "interview" of Iraqi prisoners by Australian intelligence officials. It may be semantically legal, but no one really doubts the Iraqis were beaten up.¹

Example 2: Not apologizing for the detention of Cornelia Rau when it was clearly the "right thing to do", even if there are legal implications.

Example 3: The "right thing to do" defense has been used by the Government before though: in the case of the invasion of Iraq, and the sending of troops to East Timor when both were on questionable legal grounds.²

Conduct can also be governed informally through responsibility to one's community. For instance, members of the Muslim community was quoted to have said "Mamdouh Habib owes an explanation to the Australian Muslim community what he was doing in Afghanistan". That's a pretty legitimate expectation, given that all Muslims may be unfairly tarred with the terrorist brush by the questionable acts of one person.

The other one is simply of conventions - like not misleading the parliament. With both upper and lower house majority, the leader could get away with anything really, even lying. Looking at how John Howard had avoided trying to mislead the parliament by having layers of advisers and passing off questions to his ministers, I'm not certain what he's trying to achieve. He's only lessening his place in history by not being a real leader. Furthermore, he's not really endearing himself to his ministers. Costello and Hill are the kind of decent people one would invite home for dinner.

¹I'm impressed by the fact that Australians are more willing to act as whistleblowers compared to their American counterpart. Cynicism triumphs over jingoism.

²The only distinguishing feature between (2) and (3) is that Indonesia and Iraq were unlikely to sue the Australian Government.

Learn something new everyday

2005-02-14T14:19:00.000+11:00

10 points for any one who could name the middle names of Tony Abbott and Peter Costello. (answers)

Crikey - Vanstone, Cornelia Rau and Habib

2005-02-09T21:00:00.000+11:00

A reader wrote to Crikey:

Who has empathy for Hicks and habib

Who gives a flying ???? about Mamdou Habib? Three journalists and a couple of civil rights lawyers, perhaps. Crikey, the ABC and Fairfax should cease flogging a dead camel and admit the bloke's very suss. Talk with people around the streets and you'll learn that 99% of the Australian population has no sympathy or empathy for Habib or Hicks. The remaining 1%is attempting to keep this non-issue on the boil. Now there's this nutter Ms Rau who doesn't know what planet she's on, let alone what country, as the new cause celebre.

Maree

Sad.

Maree, these journalists and lawyers are fighting for your children and grandchildren, so that they too will enjoy the same liberties you had once enjoyed.

Prediction: When the investigation into Ms Rau's case is complete, fingers will be pointing at the States inadequacy with handling mental health patients, rather than how equitable it is to lock up people who are not dangerous.

Already, the opposition is wimping out, saying that the "inquiry should investigate all aspects of the case including the process that led to Ms Rau’s detention". What about section 177 of the Migration Act that you helped pass?

Update:Now the Prime Minister says he cannot apologize, citing that it would be legally dangerous. What a Howard. You've locked up an innocent person in our name. The least you could do is to apologize in our name too.

Update 9/2/2005: There are some reports that Cornelia declared herself as an illegal immigrant. I would have thought this in itself should have raised some warning bells. Incidentally, the old Soviet Union used to send their dissidents to mental institutions, reasoning that these people have to be mad to be openly against the government.

$2.6m awarded against the NSW Ambulance Service

2005-02-06T01:42:00.000+11:00

Paramedics administered adrenaline to a postman who suffered a severe allergy after being stung by a bee. Unfortunately, this was administered into the vein, causing a brain artery to burst.

The Sydney Morning Herald reported (note: registration required) that

The ambulance officers followed treatment protocols, ... and administered adrenalin in the only way they were permitted, into the vein. But the court had found this treatment was appropriate only in cases where the patient was close to death.

The situation is trickier for doctors. In the case of a doctor reported earlier in this blog, he followed the treatment protocol of the hospital, and discharged a young girl after she had a fall. The young girl later died of head injuries.

Now you'd think the doctor would be in the clear, given that he had followed the hospital's protocol. Not quite. The young girl's parents took action through the Health Practitioners Tribunal, citing malpractice.

Unfortunately, the legal position is still not clear, as the doctor pleaded guilty, saying that he just wanted to "move on".

(Note to foreign readers: Public hospitals are free in Australia, and there is always a shortage of beds. One can imagine these protocols are there in part to make sure beds are available for the critical cases. Doctors are in an untenable position here, since they are forced do make decisions constrained by scarce resources.)

Incidentally, Medical Indeminity Insurance does not provide for cases where malpractice was alleged. It only covers for civil cases.

Mentally ill Australian held in illegal immigrant detention centre

2005-02-04T21:37:00.000+11:00

Today's ABC news reports that an Australian resident has been locked up in Baxter Detention Centre in South Australia for the past 10 months.

Rather than taking a cheap shot at the Department of Immigration, I'm going to take a shot at our legislators. Detaining people who are not a danger to the community on an indefinite basis is bad law. Bad laws lead to bad outcomes. Now that is a natural law.

Cornelia Rau's situation was made worse because she was missing from a psychiatric ward. I can't imagine being held as an illegal migrant did her mental condition any good¹.

Unfortunately, voters do not realize how bad the law is since it locks up the 'outsiders', not Australians. Now that an innocent Australian had been effectively jailed, illegally, for 10 months, hopefully people will wake up to the executive's shenanigans.

¹Normal people held in migrant detention centres over a long term develop mental illness.

Habib v The Queen?

2005-01-28T11:55:00.000+11:00

Now that Habib is on his way from Guantanamo Bay, a legitimate question is asked whether the Crown is immune from legal action from Habib.

The Australia Law Reform Commission dicussion paper highlights that the Government can be liablity for injury, loss and damage by way of inaction or ineffective action.

If Habib was maltreated to the point of "virtually" being tortured, and the Government had sat on its hands over this matter, does the Government owe a duty to its citizens to protect them? Is the pledge taken by the citizen when citizenship is conferred a one-way bargain or is there an implicit promise by the Government to act in the interest of its citizens?

The report cites Cubillo v Commonwealth¹, where a member of the "Aboriginal stolen generation" sued the Government for not using its powers properly through failing to act in her best interests. Incidentally, Cubillo lost, on grounds that she wasn't able to satisfy the court that the officer of the Commonwealth had an intention to act against Cubillo's interests. (The officer, Mr Moy, was deceased at the time of the hearing).

¹[2000] FCA 1084

IP3 Systems: Does a University own all the IP of their employees

2005-01-16T16:47:00.000+11:00

NSW Society for Computers and the Law has a comprehensive analysis of the Victorian Supreme Court decision in the IP3 Systems case.

In this case, the work of the two professors of the VUT (Victorian University of Technology) were held to be property of the University although they were hired not for "inventing", but for "research". Critically, the court held that the higher their positions, the wider the scope of their activities fell within the terms of their employment.

Tsunami aid - is it inflationary?

2005-01-06T16:33:00.000+11:00

With the Australian government now committing AUD$1 billion (USD 765 mil) to Indonesia, one wonders whether the influx of money will only lead to inflation or not.

The point is with limited capacity, the affected countries can't really produce enough building materials to get the people's lives back on track.

Surely there should be some monies set aside for other ways of helping out:

a) people are going to need places to live in: use funds to license manufacturing technology or designs from larger companies (like James Hardie) so that houses can be constructed cheaply.

b) use innovative building materials: fund architects to design new housing out of cheap, new lightweight materials.

c) fishermen are going to need boats: what sort of engineering help can we provide here?

d) what about feed stocks: have the breeding places been destroyed?

Postscript (7 Jan):

Looks like the Australian Department of Fisheries is going to be helping out.

Hiring lawyers from big firms

2005-01-05T12:43:00.000+11:00

Patrick Schiltz, of Notre Dame Law School wrote in "On Being a Happy, Healthy and Ethical Memeber of an Unhappy, Unhealthy, and Unethical Profession":

I am as critical of big firms as anyone, but I
don’t think it can be denied that, on average, big firm lawyers are
more talented and do better work than lawyers in other practice settings. There are, of course, tens of thousands of exceptions—lawyers who do not practice in big firms who are superb, or lawyers who do practice in big firms who are incompetent. But if I had to choose between two law firms to represent me in an important matter, and I knew nothing about the two law firms except that one had 250 lawyers and the other had five, I would hire the big firm in a second. So would most other lawyers.

Classic case of information asymmetry. Can the internet help?

Bush to Name Ex-Presidents Bush, Clinton to Asia Relief Effort

2005-01-04T02:33:00.000+11:00

It is ironic that the inward-looking Bush has been charged with managing two major international events that happened in the last decade. This terrible tsunami is Asia's equivalent of 9/11. It shocked the world and brought peoples together.

The tsunami relief effort is one of the best chance for the US to establish it's credibility in the predominantly Muslim South-East Asia.

With the toll in Indonesia approaching 100,000, any acts of generosity at this critical stage will help quell suspicion that the US is anti-Muslim. Violence has not been a characteristic of the peace-loving South East Asian Muslims until recently. I sincerely hope that any kindness shown will be returned with opened dialogue and better appreciation of US's position.

On a related note, more critically, this is a chance for the Thai government to work in an fair manner with the Muslim minority in southern Thailand, to demonstrate some value of not seceding from Thailand.

ps. My feelings have been echoed by Tom Barnett over here.

Poverty is no disgrace, but it's a great inconvenience its a crime.

2005-01-03T14:21:00.000+11:00

You'd better read the article yourself. Here's an excerpt from the Queensland law books:

A Vagrant includes any person who:
has insufficient or no visible lawful means of support (s 4(1)(a));

is a habitual drunkard who behaves in a disorderly or riotous manner in a public place (s 4(1)(c)), (the Liquor Act 1992 (Qld) also prohibits consuming liquor in a public place); or

loiters or places himself/herself in a public place to beg or gather alms (s 4(1)(k)).

The penalty for being a Vagrant is a fine of $100 or 6 months imprisonment.

Overworked doctors

2004-12-30T15:49:00.000+11:00

Should a doctor working in a public hospital be liable for injury caused due to fatigue?
In Queensland, Australia, the answer is yes. The Health Practitioners Tribunal found that "the Health Practitioners (Professional Standards) Act 1999 which prevented the board from taking into account Dr Doneman’s relative inexperience, the long shift and a culture at Caloundra Hospital of not admitting children for observation."

The doctor was working in his 20th hour of a 24 hour shift.

I'll blog more about this later. Doctors who are migrating to Australia should be aware that under existing Commonwealth laws, they will not be able to work in metropolitan areas as GPs for 10 years. The only options available are to work in the hospital doing horrid hours, or to work in the bush. Those who are contemplating migrating in the near future and who need this information right away can email me on teyc@cognoware.com.

I'd rather flip burgers

2004-12-26T12:13:00.000+11:00

Grandparents looking after grandchild so that parents can earn money and pay taxes can claim a grand sum of 47 cents per hour. (This is pretax earnings). The marginal tax rates for people on income support is around 20% in Australia.

I used to think the lawmakers still live in the 50s. Now I know they do.

Legal Privilege no protection for James Hardie

2004-12-07T23:47:00.000+11:00

When laws and ethics intersect, there are some days when ethics wins.

Lawyers should give legal advise that include the possibility that the Government may make legal things illegal.

In one of the debates on ABC radio, it was suggested that the corporate veil be lifted on James Hardie, exposing the shareholders to the liability directly.

Yahoo news: James Hardie laws pass first hurdle. The parliament passed a law that laws ASIC to access legally privilieged documents relating to James Hardie.

Parliament Bills: James Hardie (Investigations and Proceedings) Bill 2004.

apcmag.com: Daily Dispatch (opinion) - KazaaGate Day 1

2004-12-02T09:18:00.000+11:00

There is a trial in the Sydney Federal Court which is being intensely watched in the US by the computing community.

The issue at hand is: Sharman Networks has beeing distributing a piece of software that allows users to share their files with one another. This widely used software has been used to share, among other files, music which has been ripped from CDs. The Australian Records Industry Association (ARIA) is bringing a suit against Sharman Networks (more exact details when I find out), basically to stop this piece of software from infringing on copyrighted works.

Copyrighted works aside, there are quite a few legitimate applications that could run on a file-sharing network.

a) File backup
b) Sharing work documents (like a network drive)
c) Medium for small software companies to distribute "shareware"
d) Medium for unknown artists so that their works can be sampled. (see the Creative Commons License)
e) Political messages

It would be a blow to the smaller technical community if this type of software is ruled illegal, just because a lot people are doing illegal things with it.

Australian PC magazine maintains a daily blog about the trial progress. However, it is not legal reporting, and readers may find the tone rather flippant. Please email me if you find other sources.

Source code loss excluded from insurance, says court | The Register

2004-11-12T19:01:00.000+11:00

Source code loss excluded from insurance, says court | The Register. The High Court ruled "consequential losses resulting from the erasure, loss, distortion or corruption of information on computer systems" includes source code. (Via Outlaw)

R v. Ali [2002] QCA 064 (15 March 2002)

2004-10-30T20:08:00.000+10:30

Taunt your neighbours and go to jail. 5 years.

6 Reasons why George Bush should win

2004-10-30T01:31:00.000+10:30

Do it for the kids. Another 10 years of fundamentalist rule in America should be enough for the new generations to wake up and return a secular government. I'd give up some liberties for my children to live in freedom.
Catch up time. Another 10 years of fundamentalist rule would give time for other countries to catch up (look at what the Taliban did to Afganistan) - wake up EU!
Stagger out the chances of outright war with the Moslems. Now that Iran's fundamentalism is coming off the boil, it'll be a great time for Christian America to be around while there's no Satan to fight against.
Its chic to be religious. Hey, even Madonna's on to it.
It will make consistent foreign policy - what's good for America is bad for Middle-East. For the last 20 years, they couldn't have democracy. Now they can't have theocracy.
America is healthy enough for great social experiments. Any other country would have descended into a screaming heap in half the time.

Govt claims 87 seats in lower house

2004-10-23T17:27:00.000+10:30

Con Sciacca (Labour) lost his seat of Bonner narrowly to Ross Vasta(Liberal), and conceeded graciously link.

Mr Sciacca learned Mr Vasta's father, former Supreme Court judge Angelo Vasta, had refused to hand out how-to-vote cards for his son out of deference for his friendship with Mr Sciacca.
He said if he had to lose, he was pleased to lose to a Vasta.
"He is a third generation Sicilian, so in a way we are keeping it in the family," Mr Sciacca said.

ABC Radio National - Background Briefing: 30 November 2003 - What Insurance Crisis?

2004-07-25T21:45:00.000+10:30

Is litigation in Australia driving up insurance premiums? This transcript of ABC Radio National says not so.

Learning from the rest of the world

2004-06-29T11:50:00.000+10:30

Vicky Jackson argues that US judges have always looked to judgements in other countries and should continue to do so.

In Australia, the justices accord a very high level of respect to the decisions of the Privy Council and the House of Lords.

via Volokh Conspiracy

Federal Court decision in Trevor Kennedy legal privilege proceedings

2004-06-28T12:43:00.000+10:30

The Federal Court decision in Trevor Kennedy legal privilege proceedings
determined that the dominant purpose of the notes were not made for obtaining legal advice, and therefore not covered by legal professional privilege.

Justice Gyles found that Mr Kennedy did not establish that the dominant purpose for making the notes was to obtain legal advice, nor did he establish that any legal advice that might have been related to the notes was in connection with the administration of justice or proper function of the legal system in Australia. Justice Gyles noted that any such advice would have related to taking advantage of Swiss laws in order to keep assets and transactions secret from Australian authorities.

How Reagan Changed the Courts

2004-06-12T21:56:00.000+10:30

Another article about how judges were appointed. This time by the Reagan administration who took appointment of judges to new levels of sophistication.

Attributes of an ideal Supreme Court justice (in the eyes of a conservative leader) were:

"refusal to create new constitutional rights for the individual" and "deference to states in their spheres," as well as "legal competence" and "strong leadership on the court/young and vigorous."

On the transformation of the judiciary:

"President Reagan turned a system dominated by party courtesy and patronage into a systematic process that was an extension of his policies."

The Brown Decision

2004-05-20T12:32:00.000+10:30

The Brown Decision takes us into the backrooms of courthouses, office of the A-G, and gives insight on how the judges arrive at Brown v the Board of Education.

Judicial Activism in Brown v Board of Education

2004-05-17T16:24:00.000+10:30

This opinion on the WSJ questions the reasons behind Brown v the Board of Education. The case was determined based on "modern psychological knowledge", instead of reasons of policy.

Two questions:

a) If the judge had used some other "modern" fact and came to the opposite conclusion, would he have been derided as out-of-touch?

b) Is it possible for the court to make a decision of with policy elements without deciding what the correct outcome is, and then finding the reasons later?

2004-04-14T11:33:00.000+10:30

Chat, Copy, Paste, Prison - In New Hampshire, all parties to a conversation is required before recordings can be taken of conversations. Recordings are not not only inadmissible, but also illegal.

A recent ruling has that conversations also apply to electronics conversations, ie email and internet chat.

2004-04-10T14:10:00.000+10:30

This article at Sydney Morning Herald talks about a young couple who were boy-girl friends, living together because they had practical needs for accommodation.

The female - Sally - was subsequently denied NewStart allowance - because the law treats them as a couple living under marriage-like arrangement.

The Administrative Appeals Tribunal found that ... "the absence of commitment and pooled resources outweighed Sally and Stephen's shared bed and household" and ruled that their's was not "marriage-like" arrangement..

This is a good example of social change driving the law.

2004-03-19T12:28:00.000+11:00

Whitelisting spam as a final resort

If you are emailing me for the first time, I have set up my email client
to remind me to whitelist you if you include the word "coconut71" in your message. Otherwise, it goes straight into the Junk Folder.

If you'd like to know how to set up your email client this way,
feel free to email me at teyc @ cognoware . com.

Chui

2004-03-18T12:50:00.000+11:00

Launch on Warning: Aggressive Defense of Computer Systems by Curtis Karnow discusses the inability of the legal sytem of "policing the illegal behavior [of computers which launch `malware', or breach license terms of music or software]."

2004-03-10T10:18:00.000+11:00

Here is a article from a newsletter of the Law Council of Australia about the impact of the Federal Court on the legal scene in Australia (pdf).

Tony Abbott writes:

"Its judgments are accorded high authority, particularly those of
the Full Federal Court. This Court has become the final
Court of Appeal in the bulk of tax matters, as the High Court only
grants special leave where matters of fundamental principle are involved.

The Court’s decisions on section 52 of the Trade Practices Act
have shaped much of Australia’s commercial life, and its
work in the sometimes controversial areas of industrial relations,
migration law and native title regularly sees the Court
featuring in political and media discussion.

2004-03-09T13:13:00.000+11:00

About

I am Chui Tey, a software engineer for a Brisbane (Australia) company. Here is some information about me:

Professional experience

I have Bachelor's degree in Engineering from the University of Queensland (1993), and a Masters of Business Management (Technology) APESMA (1999).

I have worked in the coal mining industry as an engineer for nearly six years, and I have been involved with software development over the past five.

I am currently reading law at the Queensland University of Technology.

Interests

I am interested in patent law, the application of law in new environments, as well as the application of technology in a legal environment.

I am also interested in art. I maintain a blog about aboriginal art here, as well as an art gallery showcasing Australian Aborigine dot paintings.

Personal

I grew up in Kuala Lumpur, Malaysia. I studied in Singapore under a ASEAN scholarship before migrating to Australia.

I am married to Swee Sam Teng, and we have two children: Eeleen and Ian Sen.

A Journal of Australian Law

Charges against Haneef dropped

Pressured Haneef Investigator Dies

Relief for Haneef

Detention without being charged

Life is Tough When You Can't Tell One Politician from Another - Haneef Part 2

Haneef Charged With Recklessly Providing Support

Surrender Your Judgement

Whatever Happened to Mens Reas

Women Who Really Ask For It

List of Job Opportunities for Migrant Doctors in New Zealand

A parking ticket or breach of international law?

A parking ticket or breach of international law?

Cop fines someone for speeding

Can a medical doctor be referred to as Dr in a court of law?

Be careful how you salary sacrifice

The Speech Accent Archive

Income Splitting Test Case

Man offers to hang death row compatriot

Mandatory Death Sentence for Australian

Australia Transports Criminal To Serbia

Migrants to Australia not using their qualifications

Anti-Terrorism Bill 2005 No. , 2005

A Punjab Migrant Doctor's Tale

Million Dollar Quiz and Tax

Howard's quote of the day

Immigration reform reaches a dead end - Opinion - smh.com.au

Where can I get a copy of the Australian Law?

Government wearing two hats

Arabic Trojan butts into porn surfing - vnunet.com

Hurricane Katrina

Policy and taxes

Play that funky music, white boy

Less Laws

New Rules of Traffic Engineering

Skilled migrant program flawed

Herald Sun: Howard praises journos [27aug05]

Wifi: Public Infrastructure for the new century?

A-levels becoming 'just a leaving certificate'

Financing health care -| Economist.com

More on Cornelia Rau

Migrants can struggle to get jobs

Skilled Migrants Might Not Get Jobs

Hunt for migrant workers

Overseas Doctor marrying Australian Citizen

Seafood worth $150,000 stolen

Australian Immigration Departmental statement on Hwang case

Illegal migrants

Alert waitress saves girl

Migration law ruled Rau case

Woman deported after up to 18 years in Aust. 07/05/2005. ABC News Online

Filipino woman wrongfully deported from Australia still missing

Geoffrey Hills - Courts are unlikely to find against James Hardie Industries

References

Long term low income earners and housing

Whom does the Law serve?

Living away from home allowance

More on Barristerial Immunity

National water trading and taxation - Australian Water Summit - November 2004

Corporate Ethics

Detainees converting to Christianity to gain review of cases

No more anonymous political opinions in Australian Blogs

Mayor wants to fine weatherforecasters for wrong forecasts

Barristers keep immunity to lawsuits

Movie about lawyers

Parliamentary Question Time

Non-Laws

Learn something new everyday

Crikey - Vanstone, Cornelia Rau and Habib

Blogrolled! (First time ever)

$2.6m awarded against the NSW Ambulance Service

Mentally ill Australian held in illegal immigrant detention centre

Habib v The Queen?

IP3 Systems: Does a University own all the IP of their employees

Tsunami aid - is it inflationary?

Hiring lawyers from big firms

Bush to Name Ex-Presidents Bush, Clinton to Asia Relief Effort

Poverty is no disgrace, but it's a great inconvenience its a crime.

Overworked doctors

I'd rather flip burgers