Archive for the ‘Law’ Category

Constitutional Federalism In Australia: A Brief History

July 6, 2010

Facilis descensus Averno, Sed revocare gradum, superasque evadere ad auras, Hoc opus, hic labor est” – In Defence Of Federalism, Chief Justice Harry Gibbs

It is hardly a great secret that Federalism & the Australian Constitution is a great passion of mine. Indeed, I freely admit that back in the day I would read rulings of the Griffith High Court – rulings that, in my mind, were not merely legal opinions, but works of beauty sublime – in my spare time, and that I still speak about the subject whenever I get the chance (I recall a few months ago – quite literally – putting a poor American to sleep with my rants on the matter). So I’m a Con Law geek. Deal with it.

In light of this, though, it is of great sorrow to me that of the few people remaining on our side of politics in Australia who remain committed to the core Liberal-conservative principle of Federalism, there is little understanding of how we got into our present morass, and that, outside of the membership of my beloved Samuel Griffiths Society (which ought really consider renaming itself to The Society of St. Jude), few are aware of how the High Court of Australia rode roughshod over the Australian constitution, and, in the course of 80 years, ripped up the Framers intentions, and turned very limited powers into a blank cheque for the Commonwealth.

I’ve also noticed that no real summary exists of how this occurred.  As such, I thought I would prepare a very brief history of Federalism in Australia, as seen through the few landmark cases which act as signposts to the Tartarus we are now in. Hopefully some of you will find it useful. (Also if people are interested, I may follow this up with a discussion on how the Australian Constitution was based primarily on the U.S. Constitution in terms of Federalism, and, more importantly, how even following Federation there were strong links between U.S. and Australian jurisprudence, to the effect that the Australian High Court adopted U.S. rulings carte blanche, but we shall see). I note that much of this post is adapted from an Independent Research Project I wrote at Law School, which, if you wish to download, you may here.

(more…)

Following This Blog Post In Australia Will Make You Guilty of Being a Child Sex Offender

March 16, 2009

In possibly one of the most stupid legal decisions by an Australian court in recent times, a man pleaded guilty yesterday to possessing child pornography after he downloaded images of characters from The Simpsons and Pokemon naked and performing sex acts on each other. “Magistrate Sharon Holdsworth said that even though the images did not depict actual children being exploited, the need remained to deter members of the community from viewing or disseminating such images.”

These images get frequently passed around as jokes. There are thousands of them floating around the internet. And apparently having them on your computer makes you guilty of child porn. Which will go on your record. Permanently.

So, here’s a link to the Google image results if I do a search for’ Bart Simpson Sex’. If you follow the link and view these pictures in Australia, you will be guilty of viewing child pornography. Go ahead. Follow the link. I dare you.

(Via the ever-brilliant Radley Balko)

PS: I know this whole issue first came up a few months ago, but didn’t have the blog back then…

PPS: I was going to include the pictures on my blog post, so everyone who views this blog would be guilty of “viewing child pornography” but chickened out…

Manufacturing Guilt

February 19, 2009

Working as a defence paralegal for a year quickly shattered most of the nativity I held towards prosecutors and police. Many of the former do anything to obtain a conviction, many of the latter believe their uniform makes them invincible, above the law, and able to arbitrarily abuse at whim. Not all, mind you, not even the majority, but far too many for us to unquestioningly trust their judgment. Certainly as a class they are far from the shining knights presented in popular culture. Nevertheless, despite my general cynicism, some actions are still so abhorrently horrifying they still manage to shock me still.

Rodney Balko from Reason presents the results of an investigation he conducted demonstrating how medical examiners manufactured the evidence that put a man on death row.

Lengthy article, but a must read for anyone even remotly interested in justice.

One wonders whether the blatant fabrication of evidence resulting in people being sent to death law could be considered equivalent to murder.

Law Student Activity During Class

January 14, 2009

song chart memes

The Drug War

January 12, 2009

I was reminded earlier today of the instance where the futile stupidity of the drug war became so apparently obvious to me. For quite some time now (ever since reading Friedman & Szasz’s Liberty & Drugs) I have held the standard libertarian position in favor of drug-legalization. But it was always a rather abstract, almost esoteric position – something I accepted intellectually – almost as part of a check-the-boxes-of-libertarianism – but never really applied or actually felt. Then one day I actually was able to see first hand the effects of the drug-war, and its insane stupidity, and I felt like I was quite literally hit.

Essentially throughout last year (while I was completing my Masters in Public Policy), I took advantage of my law degree and worked part-time as a defense paralegal. I was observing a case where a teenager was convicted of ‘deemed supply’ of ecstasy – essentially he just had enough in his amount that it was ruled he was a supplier, even though there was no evidence of this. In NSW, 3g (or roughly 30 pills) is enough to have you deemed a supplier – hardly enough to make you a drug baron.

Merits of this particular case aside, I was watching this trial and conviction unfold and began to think about the cost involved.

Now, this trial went for 5 days, plus sentencing. The government paid for a judge, his clerk, court officers, security, prosecution counsel, defense counsel (both barrister and solicitor – and their many house of case preparation), jury fees, court operating costs, witness expenses,  and obviously all the costs involved in the police preparing for the trial.

Adding these up – and remember how exorbitantly staggering particularly defense legal fees are legal aid or not – and it’s a staggering amount. Plus of course there’s the cost of sentence on top of this. Quite possibly over $100,000 in total. And why? Because a kid had a few pills on him.

We could have spent $100,000 – or even more – of taxpayer money to punish a kid for having a small bag of pills. $100,000. Heck, even if it was only half that it’s still a staggering, staggering thing to think about.

Then multiply this by all the drug cases our courts hear. All the police resources they take up.  And think how much better the money could be spent.

[As a side note, working in the legal industry made me rapidly lose most of the respect I used to have for police as an institution, and realise just how f**ked our justice system is – quite scary really. But thats for another post]

Sloppy Journalism

January 12, 2009

“Loophole gets criminals off” led the SMH earlier today in respect to no-conviction-recorded sentences (known as Section 10 orders).

On one hand the Sydney Morning Herald (sensibly) decries the Law & Order auction, and then on the other comes up with such ridiculous headlines.

Whilst I do not dispute the potential of the Section 10 orders being overused, they are a fundamental part of our criminal justice system, and an important check & balance on the power of the state. To call something so integral to the courts a ‘loophole’ – as if the guilty are getting off scot-free on some technicality – is just mind-boggling.

Granted, it’s probably the fault of an ignorant sub-editor, but still, this headline is just sloppy journalism and precisely what encourages the simplistic hysteria that is the NSW Law & Order Auction.

Update: There have been a number of letters to the editor of the SMH published today,  including from my former boss, which I shall quote here:

“The hysterical headline “Loophole gets one in six off the hook” (January 13) misleads the reader about the effect of section 10. That section may save a defendant from a criminal conviction for a good reason. A conviction for lower-level offences can have a disproportionate effect on a life.

There is a public benefit in allowing a magistrate to place a miscreant under the pressure of a good-behaviour bond. A year or more under the sword of Damocles can do far more to deter offending than a conviction and fine. Reoffend while on a good behaviour bond and you may deserve a conviction and penalty. Deterrence and rehabilitation are both facilitated by section 10.

After 20 years as a defence lawyer, I know a section 10 is not that easy to get. The circumstances of an offence and the life history of a defendant can cry out for something better than a hardline approach. Listing the outcome of celebrity cases tells us little about the successes of section 10.

I will give the Herald a section 10 and hope for rehabilitation.”