Category Archives: Law

January 7, 2013 · 19:02

Be the change you want to see in the world

Well, here is my second attempt to today’s blog. The first one went almost into burn down mode, so it is not getting published, but it does have elements that might make it later.

Why mention this?

It seems that there are several areas where we could look for a probable initial solution to diminish the danger to women in India. Yes, a straight law and a ‘functioning’ police system there would work, but the overwhelming feeling I had was the oddity of it all. India is not a little village in the middle of nowhere. That place has a few more people than most. Almost 20% of the entire population of the planet lives there, so what to do?

So, now I mention the next fact that bothered me. NO ONE helped! Everyone was standing by all in a state of apathy. This got my goat! I’ll happily spend 20 years in prison for decapitating some rapist in the street, and I know I am not the only one feeling that way (I am likely the only psycho who would actually do it though). SO, if we consider the aggravation a population has when so many people live close together, then the inaction makes even less sense to me. I personally do not belief it would be a religious thing, because we were all children, and most of us become parents, so that primal rage to protect innocence is in all of us.

Good Samaritan laws are there to do something in aid of others. I personally belief that it is for the simple reason that the police cannot be everywhere all the time and the following duty to rescue that follows from it could drive down violence statistics and it also means that people will come to the aid of these innocent women. Isn’t it interesting that hundreds get raped, yet Richard Gere got a warrant instantly for a kiss? How interesting this looks against the rape victims who have to wait for week to get any kind of acknowledgement (especially by the police).
So let’s talk about the Good Samaritan Act.

The US does have Good Samaritan acts; however this does not seem to be the same for all states. In many states this umbrella will only protect professional assistance. Nurses, rescue workers are in those cases protected against liability (as it should), however, a bystander rendering assistance, could in theory get sued in several states, and under certain conditions. Volunteers are often protected (unless gross negligence can be proven).

The Good Samaritan act exists in almost identical forms in many Common Law countries. It is important to note that this is only their as a defence in criminal and Tort law cases. It is not a duty to rescue, a duty that professional workers are bound to (fire fighters, emergency medical staff and so on). We could see the Good Samaritan Act (GSA after this) as a moral compass for those who do not act. Do you really want to be bystander telling a judge in court that you wanted to help, but alas. That darn broken nail prevented you from applying pressure to a fatal wound bleeding out (of course some faint at the sight of blood, and that in not something they can control).

There are however places where the Duty to rescue applies to its citizens. In Germany and Canada (yes go figure), these two have a law in place that OBLIGES a person to give aid where needed, and as long as their assistance was given in good faith, this law also protects them from prosecution. It is a much stronger version then the GSA, I personally am on the fence whether we should go for GSA or Duty to Rescue. However, the Canadian version was short to the point and in simple English written, so it seems to be a simple ‘rule’ to follow. I personally think that it is not a bad thing to render aid when needed. Personally I must notice that Canadians tend to be much too nice and will give aid and render assistance at the drop of a hat (any hat). This makes life north of the US extremely liveable and friendly flavoured.

The Daily News and Analyses from Mumbai reported on the 6th of January “Coming to someone’s rescue — an accident victim or a woman violated — is fraught with risks. The good Samaritan will be summoned to the police station several times, sometimes at odd hours, forced to become an eye-witness, and seldom offered any protection, even if he/she is ready to testify in court against a dreaded criminal who probably has the means to hurt the witness.”

From these words it seems that there is no proper GSA active in India. This changes everything, and the fact that many newscasts seem to have ignored that little fact seems to bias us in the wrong way about India. When the need is there we would all happily help, but often not at our own expense. So it seems that in India the consequences to the financial stability (and therefor the family of the one helping) could be very consequential. It therefor becomes clear that this stops people people from rendering aid. Why was this not tackled?

The interesting part is that:

  1. I am not that clever (really I am not).
  2. This has been going on in India for some time.

No one in Indian Legislation, or the Bar council of India could have started this? This has been going on for years. It is time that questions should be raised quite loudly in this regard and in my humble opinion.

My first thought is that a group of people that others might have heard of at some point should speak out on this issue. For example Prime Ministers Julia Gillard (AUS), David Cameron (UK) and President Barack Obama (US). Then off course a few other names come to mind. Lord Neuberger, Lord Hope, Lady Hale to name just 3 of the 12 that come to mind at present. In that regard Australia might have a few titans to contribute to this cause. There is former Justice Michael Donald Kirby and not to forget Sir Gerard Brennan who is actually presently in office holding the position of Justice of the Court of Final Appeal of Hong Kong. These people are not just names to throw around.

The reason for the three UK justices I mentioned is because I have always seen England as the foundation of law in Australia (it actually is). They are also the roots of law for India, and even though most of us have adapted the protection through the Good Samaritan act, it is interesting that India does not have such an approach (or so it seems to me, so if I am wrong please correct me).

Now, it seems to me that others might be able to help in this regards. The UK at present still enjoys an annoying (read frustrating) amount of red tape all over the place (also locally known as rules of the game). These rules dictate that at some point people become members of an elite squad of people given long term paid vacation (aka pushed into mandatory retirement, and at times against their wills). Amongst these people are Lord Walker, Baron Walker of Gestingthorpe (as per march 2013) and Lord Hope, Baron Hope of Craighead (as per June 2013). These two are Legislative Titans!

As law lords they could be the experts to offer expertise with their views of Legislation, which could assist India direly needs for implementing a clear and quality Good Samaritan Act; one that might give actual support to the women of India, aiding their protection against the current waves of violence that they face. More important, the gang rapes would then be stoppable by all. It would be a strong first step to make things a lot better for women in India.

So, from the thoughts we all might have had on who to blame for their non safety, we moved to a how to fix this. I do think that additional changes are needed. As mentioned in the Daily News and Analyses, people who helped are picked up, have to give statements and it seems that the approach there is extremely discouraging to give aid. That part would have to change too. Combined it will bring improvement to the women in danger there.

Perhaps I am still too naïve at times, but if we selected the field of law, is it not in our interest to make the laws better, more just and more protective for victims?

These thoughts also reflect the thoughts of the founding father of modern India, the Honorable Mohandas Karamchand Gandhi (Inner Temple), stated as displayed at the bar council of India website “Be the change that you want to see in the world”, words to live by!

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January 4, 2013 · 13:55

Just and Unjust alike?

We have all heard the utter unacceptable act against a young woman in India. She did not survive the events!

Now for most people from the most just person to the most unjust dealer of narcotics, we all seem to have two things in common. We all hate sex offenders and we hate offenders against children even more. These two events give way to feelings, that we as a people have hope. No matter how we feel about weapons, about drugs and about adult entertainment. We have a genetic drive to protect children and most of us see a woman as respected, admired and desired (not regarded as to be raped and beaten).

There are two issues with this highway of events as they happened the last few months (involving several rape cases).

First of all, most people all reacted in anger when we were told on the news (in my case BBC News) that a woman was raped on Nov 13th and that nothing was registered by the police until November 27th. The New York Times (Jan 3rd 02:00) mentioned in their article that in a similar case the police had done nothing for over 5 weeks. However when reading the Huffington post, they reported that the police allowed time for the families via elders to broker a deal. The even more unsettling part is that the elders tried to marry her to one of the attackers or the pressure on the family to accept a monetary settlement. Now for me the question becomes, how usual is this? I do not proclaim to have inside knowledge into Indian/Hindu affairs. So when reading this, I wonder whether the news was correctly portrayed, and if it was a correct/legal way to set things straight in India. (and no matter how legal, I still find it utterly disgusting that a woman would be treated in this way)

Now, let me be clear. Rape is NEVER EVER an accepted thing, and change as pushed for at present is a good thing in my mind.

I always believed in equal rights, and taking into consideration that out of 1 billion, 500 million people are unjustly treated is a big wrong, however, in my mind, it also means that criminals should be properly represented, or my idea of justice is just a farce at best. So, when I saw the news made mention of an event, that the Indian order of advocates made a move to not represent these criminals, I stood up in disbelief. Now, I will admit that I am not overly against capital punishment (especially against that group), but no matter what. They do deserve representation. They deserve decent defence, if only to make sure that we as a people do not turn into a quick lynch mob. There are rules of processing, rules of evidence, and as such, any party deserves correct representation, so that the law can be kept high, and it keeps the courtroom as a proper place for processing the criminals and the innocent alike.

Now, secondly, the need for a better system, so that the rights of women are correctly addressed is always a must, and it seems that the Indian way of life should be making a change for the better for everyone, not just men. My current concern is that these acts of violence against women are too common, and as such, India as a Commonwealth nation, should have been addressing these issues a long time ago. Why was it not?

Now to get back to the issue at hand, the honourable Sanjay Kumar from the Saket District bar council was quoted stating “We have decided that no lawyer will stand up to defend the rape accused as it would be immoral to defend the case”. Is this not the whole issue? How can justice be an actual issue, when only one side is represented?

In addition, there is an interesting part that became visible to me today. Out of the 228650 cases of violence in 2012, 89% of these cases were against women. THIS IS SHOCKING!

The fact that this is coming out now, to the extent it does. When we read about rights left, right and centre, this remained so undisclosed? Why is there not a lot MORE visibility of this injustice? I do not remember an overly visible amount of reports on this until last week. So, who were reporters representing? Big business perhaps?

However, I do still belief that both parties should be represented. ABC reported that “A panel to recommend changes to the criminal law dealing with sexual crimes was set up last week.” This is only the first week of January and over 650 cases of rape are already reported. I find it more shocking that it took a heinous act of such size for the Indian government, as well as the international press to take notice of this level of injustice.

It is my belief that the Indian government should face visible public scrutiny and that the current Prime minister Mr. Manmohan Singh, should answer the following issues:

1. Why are women’s rights so trampled on in India, a Commonwealth nation no less!

2. Why is due process not correctly attended to? No matter how immoral, if we belief in commonwealth justice (common law), then both parties should be represented. If only to make sure that correct due process is adhered to, and that the law is properly applied. I understand the disgust of the honourable Mr. Kumar, but they do not set policy, and a refusal to represent a party is a change of jurisprudential policy, and it is interesting that current information implies that the government did not respond to the statement by Mr. Kumar. Why not?

3. We seem to go the great lengths to avoid Pakistan, Russia, Saudi Arabia and several other nations as business partners as human rights are trampled on. How is this any different? And if we accept that, why is India not on the list? Because many industrialised nations use them for cheap labour? Their moral values seem highly sanctimonious to me.

My biggest fear is that in the end too many men will walk away, as they will at some point shout the defence that no proper defence was allowed for them, which must be prevented at any cost, as it allows for even more injustice.

As for all these so called upset captains of industry. Perhaps you all should consider another solution. In stead of outsourcing TO India, i say that we start pulling out of India. In this day and age of recessions, that should have a very visible consequence in India, and that might be a clear signal for change. When this level of violence against women (89%) is tolerated by western worlds by doing business with these people we clearly have more problems then we admit to. I will not pretend to have all the answers, or even have some of the answers. However, it is clear that a lot more needs to be done, it should be done correctly and it should happen very very soon.

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January 2, 2013 · 00:16

PM and the freedom of the press

People might wonder why I keep my eyes on the things happening in Britain. I for one still believe that whatever happens there will impact us, especially in legal terms, development and evolution.

So when I initially read about Murdoch and phone tapping, I was less concerned with his paper here (the Daily telegraph for one), and more with the acts and power base of Fairfax. I have seen how too many people just jump to attention when Fairfax calls. From my point of view they have way too much power, and too many people are really eager to be on the ‘good’ list of Fairfax. This is not an accusation that they are doing anything wrong, more about the willingness of others to be in the good graces of some of these corporations.

From my personal view it would be less about what government thinks and does, and more about how our futures have been too strongly in the hands of companies like Telstra and Fairfax.

So when I read about the British PM commenting on the Leveson report and on ‘his’ fears in regards to freedom of speech, I had to wonder about certain parts connecting to these thoughts. Now most people currently use the Leveson report as a Hype and mention this reports mainly towards the events of Murdoch (which started this all), however, the words of the PM struck a chord in me and not a good one.

I will state here, that (just making sure you do not consider me an authority on this):

  1. I have not completely read it yet (this work is larger than the Hobbit and the Lord of the rings put together).
  2. I am still trying to see the wisdom of certain parts as I did not yet pass Media law as a subject (but I hope to get the option next semester).
  3. It is an UK report and little old me is on the Largest island of the British Empire also known as Australia (I am claiming artistic freedom of comparison in naming it an Island).

 

Lord Justice Leveson clearly mentions again and again, the need for the freedom of the Press (and him being in favor of it), so the fear of PM Cameron seems unwarranted.

There is the question that this view was given in light that in general politicians are slightly too deep in the pockets of the press to further THEIR visibility in regards of their political careers. (I am not implying ANYTHING illegal here, as their visibility does depend on publication of their views, all good and legal).

What I do fear is that most of all this is too often and too visibly NOT about accountability. This report does mentions accountability of government, however there is at present (read as far as I got) too little about accountability of the press. There is some mention of its history by Sir David Calcutt QC (page 205). Volume 2 in part F does mention this failing, although there it is in regards to policies. This in itself is questionable in my view. If a person is not accountable for actions and he works under policies that do not set rules of accountability, or have clear lines of oversight, making sure that ethics are correctly checked, enforced or demanded, what remains?

How can those press organisations be regarded as possible employers? How can a situation evolve as quoted from Vol.2 page 538 where senior management were ‘shielded from anything that was going on there’.

 

If we consider this to be intentional acts of non-accountability, are the issues involving the press not about their freedom, but the essential need for their accountability?

From my point, especially the British press has moved from reporting events to the unadulterated abuse of the wealthy and famous at their expense for the benefit of more money (labelled as entertainment). I’ll be honest. I do enjoy a jab at those on pedestals too high for their own good just like anyone else (with a little moderation), but the press has overdone it for too long, and at the harmful expense of too many.

When we consider this in regards (especially) to glossy magazines, should we not consider criminal prosecution?

Consider this:

Narcissistic personality disorder (NPD) is a personality disorder, and it has been linked to egocentrism.

The Diagnostic and Statistical Manual of Mental Disorders fourth edition (DSM IV-TR), defines narcissistic personality disorder (in Axis II Cluster B). So if this is known, is the over abundant exposure of these people not criminal?

The UN charter defines Principles for the protection of persons with mental illness in their charter since 1991. So is the press hiding behind the freedom of the press in light of a criminal act?

I agree that my view is exaggerated; however, it seems that everyone is supposed to be held to some minimum level of standard. To deviate from this for one group is called discrimination, whether this is positive or negative. So why is the press discriminated for in light of their acts, as they get away with something that is nothing short of character murder.

Not unlike the Lord Justice, I am all for the freedom of press. How else will we know what is going on?

However, I am also in favor of accountability to be introduced to the press. This is not a bad thing. It forces a higher level of quality in published works. That also means that only those versed in journalism, ethics and linguistic skills call themselves Journalists (this excludes the large groups of people with a mobile phone, a Facebook account and only those two to propel happenings into misrepresented accounts of events to be published under the label of some form of ‘Contributor/Announcer’.

(to be continued soon)

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December 13, 2012 · 00:13

Results to be listened to

Tuesday was an interesting day to say the least. Awaiting my grades I decided to spend the day in court, watching proceedings. I could not get into the second court as it was a closed court, so I went into court 5. There I saw the proceedings of a case that included narcotics, the Netherlands (my native nation) and wiretaps.

The interesting part is the issue on infrastructure on evidence of wiretaps (I will not set you to sleep with conversations of wiretaps themselves, as the issue in play is actually a lot more interesting).

If we consider the track of such evidence, like the capturing of the conversation, the collecting and transcribing of this evidence, and then to make available this evidence to prosecution and defence is the actual topic.

The fact that several warrants are needed for one phone number is one thing. Getting this all managed afterwards is more than ridiculous (and the real ball buster). From what I understood, in one specific case it would take 6 full weeks for one person to prepare these files and reports. This comes down to almost 300 man hours. This is just one case and it is just a small pinch of the entire captured data for that case. The Dutch representative was in a state of extreme avoidance to give direct timings to get this all sorted (for several valid reasons).

For me with decades of IT experience takes a look at this from another side. How could ANY system be set into function with this ESSENTIAL need properly addressed before the software was used? Even further, how could such systems be replaced without the proper alignment of passed cases (we are talking many hundreds of thousands of tapped phone calls).No matter HOW this would have been addressed, this as ANY system will be replaced at some point. This is to be expected as infrastructures change and grow. Consider that the Justice system should need an available solution spanning not mere years, but in access of a decade as a case goes from court to appeal and further. (The Bell group case took 13 years).

I can understand that there are reservations of such systems. However, at times they are valid, and at times they would be essential. One should make sure that these systems are properly addressed by parties needed, before forced to commit thousands of man hours to oblige the need of information to both the Crown and defence. A request that, especially in today’s options of automation should be done in 10% of that needed time, with perhaps some additional valid time to burn needed discs (some expected manual labour required).

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June 19, 2012 · 18:41

The accountability act – 2015

This is not about what is wrong, what raises questions on current legislation (actually, we all do that all the time). No, is about the future. I must admit that when I dream, I dream the big satisfying dreams. So, let there be no confusion. When I was young (roughly 30 years, 6 months and 19 days ago), not unlike other men, I dreamt of Heather Locklear, and now, I dream of becoming a Law lord. Both are equally unattainable, yet either is extremely satisfying to the mind.

So why this flashback?

I always believed that any nation, any true ground breaking thoughts they spawn comes from a dreamer. At times this is a real visionary Like Bill Gates, Steve Jobs, Lord Baden Powell or Justice Gummow. At times this is a person with a good thought that makes a real difference to many.

So what is my thought?

I believe it is time for things to truly change. I believe that the greed of some is utterly destroying the future of all others. Who would have thought in my days of primary school, that an individual would be able to have the amount of power to bleed entire cities into poverty? It was never in my thought, but then, GREED was always a weird thing. It is the one utter counterproductive sin. You see, greed does not drive forward. Competitiveness does. Innovation does. Greed does not. Greed is the foundation of slavery and submission. It drives one person to get everything at the expense of (all) others.

My worry is that too many in and out of government are driven towards this goal. Not to the goal of getting much, or the goal of getting more. But the goal of obtaining beyond reasonable proportion AND at the expense of many others, this is when we should stop and wonder the why! This is not about a business making a profit, or having good business sense. This is about an inflated situation, where a collapsed firm get’s a bailout, and then the ruling body walks off with a golden handshake of golden parachutes so large, that their feet never touch the ground. How could it even be tolerated for a company running under losses to give out these huge ‘extras’ to fat cats?

So this is where the dreamer in me woke up and thought of the following act:

The Accountability act – 2015

Why 2015? Well an act like this does not grow out of a goose feather and ink jar over night. If we think of a law that could make a real change, and would be a real stop to some of the acts of greed, then it will take time and a lot of effort too.

There is also the additional thought that this is not something against rich people. This is not about going after the rich. If someone like Zuckerberg (the guy behind Facebook) comes with a totally new approach, then those billions are his. This is not against those making and building something new. This is also NOT against the bank executive who walks out with a fat check after he made the bank real millions. This is about stopping those walking out with non-existing virtual profits, turned into real money, and leaving others behind to clean the mess.

Perhaps that one person did work really hard; perhaps he did get fantastic results. However, his co workers/bosses had their own choices and they lost the company annual profit. So alas he get’s nothing. I know it is not fair to those individuals, but these companies cannot continue in their current format, and nothing is being done about it. No results are achieved, so I personally feel that a legal side is required to slow down the outrageous growth of greed.

Why now? Well most people in London would have seen the rampant growth of landlords and how for two months they want their places available for games time, driving prices through the roof. We might not be able to stop all of these disproportionate acts. However, if we can stem the tide and make it a lot less rewarding, then there is a real option to protect a large number of victims that fall prey to these bad acts of greed. Because, the 8 weeks of Olympics are nothing compared to the months of damage for those suddenly shafted into nowhere, and at that point, these landlords will wash their hands of any responsibility. This is only an example, but in these last few weeks, one of the clearer examples.

This act might even stop the movement of these badly designed plans, especially in the financial sector. Consider that one executive tries these high risk options, which causes the loss of millions. For one, his co-workers will not react kindly to the loss of THEIR bonuses, and it would force corporations to rethink such high risk schemes, especially when no profit means no bonus and no golden handshake. It might just invite a little bit more of common sense to these greed driven board rooms.

I know I don’t have all the answers, and perhaps these thoughts are not the ones driving us forward. There is however something to be said of the exercise to try and stem the existence of one of the most unstoppable sins we know.

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September 15, 2011 · 04:23

Beginning the journey

Welcome to my new blog.

This blog is all about 10 points, or at least that’s the initial main reason.

To be eligable for the Justice Brennan leadership award, 100 points are required. 10% (10 points for non-mathematicians) of the needed points can be obtained with a blog.

The booklet states: “Maintaining a reflective blog with at least seven different entries, posted across a span of several months to reveal a developing perspective, each entry being at least 350 words in length (10 points)”.

So that is the main resaon this particular blog got started. It is actualy my second blog. During my postgrad in IT, the requirement was that for one subject, a blog was maintained. This is also the reason why I choose WordPress. It was the easiest one.

So here I am, starting my blog.

Not sure when the first ‘real’ blog entry will be, as I have to reflect on things, and this week is all about surviving midterm of my very first semester as a student of Law at the UTS.

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