Category Archives: Law

A Craig Thomson Reader

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Craig Thomson addresses Parliament (note Andrew Wilkie's expression)

More often than not these days, even day-to-day political “footie commentary” is purveyed with greater depth and perceptiveness by the blogosphere and alternative media than in Australia’s sadly diminished mainstream mass media.  The Craig Thomson soap opera is a case in point, although Thomson’s Parliamentary performance on Monday was rated equally poorly by both sectors.

Strategically and no doubt wisely abandoning any pretence of academic objectivity, UNSW’s Mark Rolfe gave Thomson’s performance a one star rating at the G8 universities’ site The Conversation:

Thomson’s statement showed him to be a man lost in politics, lashing at enemies with the usual tactics of push and shove because that’s how the game has been for him and others in this sorry little saga.

Thomson’s case about conspiracy was at best circumstantial and at worst composed of the kind of supposition that political players often make about enemy moves and intentions, even if it was more outlandish than usual. He expects us to believe this line of thinking, when we are actually incredulous at his story.

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Lock them up and throw away the key?

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There is quite a bit of current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment. The fad for secret evidence provisions had its genesis in reaction to 9/11, but gained momentum from State government reactions to the activities of criminal bikie gangs.

In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police 1, despite arguments from the bikie gang that provisions of WA “anti-fortification” legislation offended the Kable doctrine, the High Court held that the taking of secret evidence did not offend fundamental notions of judicial power. It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself. Secret evidence provisions have been upheld previously (on grounds of unacceptably compromising the integrity of ongoing investigations or sources of criminal intelligence), but they have usually at least allowed the defendant’s counsel to know the evidence and be able to argue against it.

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  1. (2007) 234 CLR 532 ↩

A student’s lament

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Rose Ashton-Weir and her mum

The twitterverse erupted in response to this story in yesterday’s papers about a student suing her former school Geelong Grammar for compensation, saying that it provided inadequate support to enable her to do sufficiently well on her final exams to be accepted to study law at Sydney Uni:

Seeking compensation in the Victorian Civil and Administrative Tribunal, she said her final secondary school score was too low to study law at the University of Sydney.

Of her time at Geelong Grammar, she said: ”I didn’t ever feel I was getting the support I needed to really excel.”

Ms Ashton-Weir boarded at the school in 2008 and 2009 but finished her secondary studies at a TAFE college in Sydney. She is in the first year of a double degree in arts and sciences at the University of Sydney.

Her mother, Elizabeth Weir, is also suing the school for lost income and other expenses.

She said she gave up her chocolate fortune cookie business – which she had expected to make $450,000 over three years – because her daughter moved from Geelong to live with her in New South Wales.

Some might cynically observe that some lawyers in hindsight might have preferred to miss out on the ‘benefits’ of this career, but generally there have been pretty harsh assessments of the idea of litigating a school over this sort of issue.  I can’t resist pointing out that someone alerted the media to this story, and my bet is that it was the girl or her parents.  Given the response, I wonder whether she now considers that was a good decision?

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Ashamed to be a lawyer?

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Pseudonymous blogging lawyer Private Law Tutor confesses her occasional feelings of “shame” at being a lawyer:

I’ve thought and talked and written about the deep discomfort that ebbs and flows in me with my work. Well, not my work as such, but the work that I do. The industry I work in. The impact we have on lives, as lawyers.

Conflict is normal, and sometimes the people in conflict need help to resolve their disputes. This is what lawyers are primarily engaged in. Dispute prevention and dispute resolution. So our primary purpose is good and honourable. I’m just not always sure that our system and our work meets that standard.

A good friend has asked me a few times now if my discomfort is guilt. I don’t think it is. I think it’s deeper than guilt. After all, guilt can be sorted with an apology. “sorry about that. I made a mistake”. I think my discomfort creeps dangerously close to shame. Shame is a dark shadow that can overtake so much of ourselves. All of us have it lurking somewhere. …

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A debtor’s morality

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After I posted a comment on Ken’s recent post about swimmer Nick D’Arcy and his decision to file a debtor’s petition in bankruptcy, he graciously invited me to contribute a post if I am insistent on disagreeing with his take.

Ken argues that there is something that doesn’t seem quite fair about Nick D’Arcy’s “strategic” decision to voluntarily declare himself bankrupt and so avoid paying the court order for compensation (and costs) made in favour of Simon Cowley in relation to injuries that Cowley suffered when D’Arcy assaulted him in 2008.  He suggests that perhaps the liberal forgiveness of debts which occurs under Australian law should be amended somewhat where the bankruptcy is commenced voluntarily to avoid this sort of peverse incentive to file for bankruptcy.

I disagree.  But I find it more interesting the way that this narrative suggests that D’Arcy has acted in an immoral way.  Just what is our morality of debt?

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Playing the bankruptcy game

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Swimmer Simon Cowley

There’s been lots of media coverage of the washup of swimmer Nick D’Arcy’s bashing of fellow swimmer Simon Cowley in a bar some 4 years ago.  Understandably the victim is not willing to allow the perpetrator to escape scot-free by declaring himself bankrupt to avoid paying more than $370,000 in damages and costs awarded in the NSW District Court last year.

Moreover, D’Arcy is off to the London Olympics despite Cowley’s equally understandable view that he should never have been selected and that a secret deal was done, probably due to D’Arcy’s threats of legal action against Swimming Australia and AOC if his earlier banning was renewed on the basis that his cunning bankruptcy move rendered him in breach of SA’s code of conduct.  Cowley is in no doubt that D’Arcy is in breach and unfit to represent Australia:

Under Swimming Australia’s behavioural guidelines, competitors are required to be ”ethical, considerate, fair and honest”; refrain from any form of abuse, harassment or victimisation of others; and ”be a positive role model”.

Cowley said the organisation appeared to have overlooked those requirements when it recommended to the Australian Olympic Committee that D’Arcy be included in the Australian team for London.

However it appears that the AOC’s legal advice was rather different:

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The fastest milk cart in the west?

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Readers as geriatric as me will probably remember British comedian Benny Hill’s famous spoof song Ernie (He drove the fastest milk cart in the west). It topped the UK Singles Chart in 1971, reaching the Christmas number one spot, and also reached no. 1 in Australia. But you probably didn’t know (or at least I certainly didn’t) that there was a very similar real life case in western New South Wales in the early 1970s, which was recounted in the latest edition of Bar News, the journal of the NSW Bar Association. Below are the reasons for decision of Cross J on appeal after a wronged husband was sentenced to one month’s imprisonment by a magistrate. Hat-tip Law Geek Down Under:

It has been said that revenge is a kind of wild justice. And, though the courts may not approve the infliction of deliberate injury, still one’s heart goes out in sympathy to all those who are moved to violence in defence of their family. Circumstances, which understandably give rise to a degree of passion may properly be regarded as mitigating factors on the question of sentence for violent conduct.

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