Saturday, December 03, 2011

Judicial legislation in Australia too

The U.S. Supreme court is notorious for this: Making laws instead of applying them. They refuse to apply clear provisions of the constitution (such as a ban on racially discriminatory legislation) and invent rights (such as a right to abortion) that are nowhere mentioned in the constitution. Our judiciary is less politicized so has been less prone to such "legislation" but, against much precedent, they have just abolished the historic right of a wife not to testify against her husband

The High Court this week granted the judiciary an increase in its powers - in particular, the power to force a wife to dump her husband deep in the doo-doo. We learnt on Wednesday that what had been known to the common law for 200 years as "the claim to privilege against spousal incrimination" was really a figment of our collective imagination.

The case revolved around misdeeds of a Brisbane accountant, Ewan Stoddart, prosecuted by the Australian Crime Commission on an allegation of tax fraud. Ewan's wife of 20 years, Louise Stoddart, provided part-time book-keeping services for her husband's practice.

Mrs Stoddart was called as a witness by a commissioner for the ACC and asked "whether she was aware of invoices prepared at the premises of her husband's practice for services provided by other entities".

Mrs Stoddart's counsel sought an injunction preventing the ACC from continuing that line of questioning, on the basis that she could not be required in any tribunal to incriminate her husband. The ACC defended the injunction application, arguing that no such doctrine was known to Australian law or that its effect in this case had been extinguished by the statute creating the ACC.

The Federal Court upheld the application of Mrs Stoddart as a clear example of spousal privilege. On appeal to the High Court, French, CJ, and Gummow, Crennan, Kiefel and Bell, JJ, overturned that decision. The High Court did not find the notion was no longer relevant, or that its detriments outweighed its benefits or that it was extinguished by statute. Their honours took the rather magical step of finding that it never existed.

The dissenting judgment of Justice John Dyson Heydon is an absolute ripper: on the net, Heydon is a "black-letter lawyer", eschewing adventure, determined to render the law as it is, resisting the temptation to correct perceived defects in Parliament's conscience.

Canadian by birth, he graduated from Sydney University, earned a bachelor of civil law and masters of arts from Oxford on a Rhodes scholarship, was made a fellow of Keble College, Oxford, teaching international law, then was a professor of law at Sydney University at 30 - its youngest ever.

He co-authored the second Australian edition of the bible of evidence law, Cross on Evidence, in 1980, and sole-authored the later five editions, most recently in 2009. He is one of the editors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies - a global authority on two of the most complex and demanding areas of the law outside tax - evidence and equity.

Heydon dissects the winning argument, line by line, blow by blow, with brutal, relentless efficiency, leaving a smoking pile of intellectual ruin. He then proves that spousal privilege is (or was, until this judgment) not merely a rule of evidence but a substantive rule of law - in the process furnishing a dozen substantive reasons why the doctrine is in the interests of justice and comity.

(I can just imagine the atmosphere on the first night home after a couple of years cohabiting with the tattooed gangs in Silverwater Jail for a white-collar crime, convicted on the wife's evidence. "How was your stay, honey? Were they nice to you?")

Heydon takes us on a panoramic tour of the evolution of a legal doctrine from its seminal dicta by Justice John Bayley on the King's Bench in R v The Inhabitants of All Saints, Worcester (1817). He writes with the assurance of a master of our law and language. Noting that the force of a precedent is influenced by the stature of its author, he provides a mini-biography of Bayley, who also penned legal texts that ran to multiple editions.

Like an archaeologist handling artefacts with immense care and respect, he individually cites 90 editions of the 13 weightiest evidence treatises, in Britain, the US, India, Australia and New Zealand, which is more than 160 years of legal precedent, concluding dryly: "The submissions of the appellant entail an assumption that the body of legal writing from 1817 to 1980, surveyed above, represents a massive deception of the reading public - judiciary, practitioners and students - stemming from a general self-delusion on the part of nearly 70 writers and editors over nearly two centuries. With respect to the appellant's position, it is not possible to accept that assumption."

Justice Heydon lost and Mrs Stoddart lost and, presumably, publishers of our common law have urgent need of a big bottle of liquid paper. I don't presume to give my readers legal advice but, when your nearest and dearest next asks, over a glass of red, "What's on your mind babe?", it may be prudent to consult a solicitor.


Australia not "correct" enough for a self-righteous American woman

I think it is true that in private conversations, most Australians are not much constrained by political correctness -- but that is part of Australia's relaxed lifestyle -- a lifestyle much easier than that of uptight America

I attended a networking event the other night in Sydney during which an American friend and I struck up a conversation with an older Australian man. We were talking about a pretty bland topic – Australian television – when the man said he had a joke for us.

“An Aboriginal man walks down the street wearing only one thong. Someone calls out, ‘You’ve lost a thong!’ The Aboriginal man says, ‘No mate, I’ve just found one.’”

An uneasy look crept across my friend’s face and my guts started churning. We swiftly changed the subject. I made it my mission to distance myself from this man for the rest of the night.

Incidents like this one have played out in many a public setting since I moved from America to Australia in early 2010. There was the random man in Woolworths who thought it appropriate to tell me Indians run all the 7-Elevens; an old roommate who called Lebanese people “Lebos”; the friend of a friend at a rugby match who made comments about the indigenous players. The proliferation of jabs at or generalisations about minorities takes on a new level in the land down under, at least for me.

The subject of whether or not Australia is “racist” as a whole has been debated heavily over the years in major newspapers and on news shows throughout the country. Part of the concern stems from actual statistics. For instance, 36 per cent of Australians do not think certain Middle Eastern and Asian groups fit in with Aussie society, as reported in a 2009 survey by VicHealth. The same report said one in 10 Australians does not think all races are equal.

Most countries practice some form of racism or ethnic intolerance, and Australia is not necessarily worse than the others. Both Australia and America mistreated certain indigenous and minority groups well into the second half of the last century. In my experience, however, Australians seem to be more permissive of derogatory mentions of race or ethnicity than Americans. And that makes me uncomfortable.

The last place I lived before Sydney was Philadelphia, a city that, while diverse, still harbours its fair share of racist people. I remember the ex whose elderly father still used the “n” word, the kids in heavily Caucasian areas who shouted racial slurs at minority classmates, the fellow reporter who made sweeping generalisations about certain ethnic groups and races in the newsroom. But in this corner of America, I less often heard out-of-the blue jokes about race spewed from the mouths of strangers at a happy hour or other public event.

In Sydney, such comments are almost like an ice breaker. Words like “chocko” and “Abo” are as accepted in the vernacular here as “mate.” The political correctness that has come to permeate my mother country is sorely missing from conversation in Australia.

That’s precisely where I stumble. Should I, as a non-native resident, attempt to correct what I deem inappropriate language used against minority populations inside and outside Australia because I come from a country where it has become less OK to talk this way? Will it really help encourage any type of consideration among Australian citizens regarding the things they say? Maybe when you’re an expat, you learn to just accept the place you’re in instead of trying to change it.

Something tells me I’m nearing the end of my tolerance for intolerant speech, though. Every joke or comment left hanging in the air with my silence only furthers the idea this type of language is acceptable among certain Australians. And while I may not be able to change the way people speak in my adopted country, I can let them know at least one person won’t stand for it.


Crime and Misconduct Commission leans on University of Queensland for information over nepotism scandal

THE Crime and Misconduct Commission is unhappy with the University of Queensland's explanation for the nepotism scandal and has again demanded more information.

The CMC last month asked the university to provide additional information after it was revealed in The Courier-Mail that "a close family member" of vice-chancellor Paul Greenfield was allowed into a course for which he or she was not qualified.

Prof Greenfield and his deputy Michael Keniger were allowed to stay on despite an independent investigation implicating them in the enrolment fiasco.

The university and the governing Senate have steadfastly refused to explain the enrolment "irregularity" at the heart of the controversy. The Senate has declined to name the faculty or the student involved or to make public the independent report by barrister Tim Carmody, SC.

The cover-up has sparked an outcry from academics and lawyers, with a distinguished retired judge calling for a Commission of Inquiry. Now the CMC has also said the university response was inadequate.

"The CMC has since requested additional information," said a spokeswoman, who declined to reveal precisely what additional information was being sought. "As the matter is ongoing, it is not appropriate to comment further at this stage."

The chancellor, vice-chancellor and executive director have declined to answer questions.

The CMC has warned public sector agencies they are obliged to forward complaints of suspected official misconduct.

State Attorney-General Paul Lucas yesterday rejected a call from Justice James Thomas for a Commission of Inquiry if Prof Greenfield did not waive his rights to privacy. "His right to privacy is questionable, especially when there is an allegation of nepotism," Justice Thomas said.

He said high public sector ethics were expected from the CEO of such an institution.

Mr Lucas said the university was almost exclusively federally funded and was answerable to the public. Premier Anna Bligh refused to say whether she had seen a copy of Mr Carmody's report


Pig-headed school

Maybe they just don't like brown people

TWO of Australia's best young chess players have been told by Sydney Grammar to find another school next year after taking unauthorised leave to compete in the World Youth Chess Championships in Brazil.

Kevin Willathgamuwa, 8, and his brother Rowan, 9, have also been excluded from Grammar's chess team competing in the Australian Schools Teams Championships at Knox Grammar this weekend, despite missing only one day of the long competition. The boys were away from school for 10 days. In Brazil, Kevin placed 10th out of 90 boys in the under 8s, and Rowan won half his matches. The Australian grand master, Ian Rogers, who was at the competition, said Kevin was clearly the best player of his age in Australia.

"It's incredible someone should be punished for missing two weeks of year 2 for representing Australia," Mr Rogers said. "It was very important for him to go to the world youth championships. It's not just the tournament but it's important for him to see what other kids have achieved at the same age."

The school had strongly communicated its position to the boys' father, Ignatius Willathgamuwa, before the family left for Brazil.

"As has been made clear to you, the boys will have to leave the school at the end of the current school year if you proceed to take them on your proposed trip," wrote the principal of Grammar's St Ives prep school, Rowena Lee. "We would be sorry to see them leave and hope that you will accept our decision."

Grammar is one of several private schools in Sydney to enforce strict attendance rules.

Last year the boys were denied permission to compete in the world titles in Greece. But they were given permission to go there for a family reunion. The family then remained in the country for the competition.

Dr Willathgamuwa said the family were very disappointed. Other children at the world championships had been celebrated at their school assembly and told they were role models.

"We are very frustrated at this. It is like the boys are being punished for their excellence," he said. "If taking them to the world championships is going to make them leave the school, then we have no regrets because a school with this approach to their development can be quite detrimental for them in the future."

The boys participate in a range of extracurricular activities, including music and soccer. Their academic results had been "brilliant", Dr Willathgamuwa said.

The family returned from Brazil on Tuesday so the boys could play this weekend. They had competed more than 15 times before missing the last round but Mrs Lee's letter said they had been left out as "a matter of fairness to the other boys" who replaced them while they were in Brazil.


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