02.14.10
Posted in Agreements, Family, Law in a Changing Society, News at 7:57 pm by admin
Queensland’s controversial surrogacy bill was passed on12th February 2010 by 45 votes to 36. Two Labor MPs crossed the floor to vote against the Bligh Government. Until this time, a contract for surrogacy had been unlawful in this state.
Surrogacy means substitute, and in this context the term is used for a substitute birth mother. Surrogacy is when a woman agrees to become pregnant and carry to term and deliver a baby for another party or parties. (known as gestational carrying)There are a range of ways this can occur including intercourse, artifical insemination or implanting an embryo. This may be done for altruistic reasons or for a sum of money (commercial surrogacy) which may be done through an agency. Given that altruistic surrogacy is now lawful in Queensland there will typically be a surrogacy contract drawn up. Surrogacy is an option when there are medical or other reasons for why a person cannot have a child in the natural way, for example, infertility, a medical condition that makes pregnancy risky for a woman, a desire to have a child but not go through a pregnancy, same sex couples and single people.
Debating this issue has been legally and morally difficult for many members of our Parliament .
Legally the presumption has been that a woman who gives birth to a child is the baby’s mother. In surrogacy, the mother is not the one who gives birth but the person who has acquired legal rights to the baby once born. So the law in Queensland will be changed so that the person or persons who contacted the surrogate birth are the baby’s legal parents.
Morally there are difficulties too. Some members of the Queensland Parliament believe that ideally children need parents of both sex and were morally concerned with babies being available through surrogacy to same-sex couples or to single men or women. Others felt it was discriminatory to exclude anyone from being a parent – essentially all people have a right to have a child to raise as their own and that Medicare payment should be equally available.
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Posted in Crime and Society, International Law, The Legal System at 6:56 pm by admin
Seven months after being arrested Stern Hu, an Australian business man with Rio Tinto, one of Australia’s largest mining companies, has been officially charged with criminal offences. He was born in China but became an Australian citizen in 1994.
On July 5, 2009 along with three other Chinese colleagues of Rio Tinto he was detained ( in prison) by the Chinese government for suspected bribery and espionage. All four now have been charged with bribery and stealing commercial secrets. Chinese law provides for a maximum penalty of seven years’ jail and a fine for stealing commercial secrets, and more than five years’ jail for bribery.
Australian consular officials have been allowed to visit him once a month, meeting Hu for up to an hour, albeit in the presence of Chinese officials. Under Chinese law he cannot see his wife, children or family. Months had passed before he received any legal advice.
The case highlights the very different legal system that operates in China, which is a socialist, inquisitorial system. No system is perfect and there are strengths and weaknesses in both approaches.
In chapter 9 of Legal Studies for Queensland the procedure of going to trial in Queensland is set out. This is very similar to what occurs in other common law countries. However, the system in the People’s Republic of China, as in some other civil law and socialist systems, is quite different. Some of these are listed below.
§ A person does not have to be brought before the court and charged ‘as soon as is reasonably practicable’ which in Queensland is usually within a 24 hour period. As in the Hu case, the pre-trial period without charge can be lengthy.
§ There is no presumption that a person will be given bail whilst awaiting trial. It is rarely granted.
§ There is a legal duty on defendants to answer questions.
§ Legal counsel is not mandatory but usually will be provided.
§ There are no jury trials. A panel of three judges oversees both the trial and the prior investigation by police and prosecutors. The lengthy supervised pre-trial period is to weed out weak cases.
§ This results in a very high conviction rate – around 98% of criminal cases that come to trial end in a guilty verdict.
§ As there are no juries the rules of evidence are different from Australia and confessional evidence is very important.
§ A defendant has only one opportunity to appeal a conviction or sentence ie limited right of review by a higher tribunal.
§ The state procurators, victims and their lawyers are also given the same right of one appeal even if the panel of judges has acquitted the accused.
§ China has retained the death penalty for a range of criminal offences, including economic, political, and environmental crimes as well as drug and offences against the person. The People’s Supreme Court reviews all death penalty cases before execution is carried out.
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Posted in Crime and Society, News at 5:04 pm by admin
Background:
In October 2003 Tina, and her new husband Gabe Watson, both from the American state of Alabama were on the 12th day of their honeymoon in Australia. Both were diving on the Great Barrier Reef when she died. Gabe Watson was an experienced diver and a certified rescue diver. His wife, a novice diver, experienced difficulty with her breathing apparatus on that day she died. He testified that his wife got caught in a current and panicked. He said he went to help but she tried to rip his mask off, and that he was unable to bring her to the surface. She sank to the bottom of the ocean. Video footage and photographs taken by other divers on the trip show her holding out her arms for him to help her. Gabe Watson argued that instead of going to her aid thought it better to return to the surface to get assistance from others. Another diver went to the ocean floor and brought up her body but she could not be resuscitated.
After an inquest and investigation in 2007, the Queensland coroner determined there was enough evidence to charge Watson with murder. This was because there were inconsistencies in his story – a total of 16 – and because of eyewitness evidence that he held his wife in a bear hug for a short period before she sank in an uncontrolled manner. Thus it was possible that Gabe Watson cut off her air supply from her oxygen cylinder during that time, bear-hugged her until she suffocated, then turned it back on the oxygen before he let go of her. This allowed him to surface whilst she sunk to the bottom of ocean. He argued he panicked.
Before the honeymoon, Gabe Watson asked Tina to increase her group life insurance to the maximum and name him as the sole beneficiary for her work insurance policy. This was seen as a possible motive for killing his wife, and he did contact the insurance company shortly after her death. He re-married.
Although Watson faced a murder trial in 2009, Queensland prosecutors did a plea deal which accepted a guilty plea from Watson to the lesser charge of manslaughter. [That means there was no trial – he pleaded guilty to the lesser charge and then was sentenced]. The court in sentencing him accepted that as an experienced rescue diver, he had breached his duty to his wife Tina but that there was no intention to kill or to do her any grievous bodily harm. Gabe Watson was sentenced to four-and-a-half years’ jail in June, to be suspended after 12 months. [See Legal Studies for Queensland Vol 1 10.5 pp 228-229] Many were concerned that he would serve only a year in prison. The leniency of the sentence for the unlawful killing of his wife was appealed by the Attorney–General of Queensland and was increased to 18 months. [Re criminal appeals see Legal Studies for Queensland Vol 1 9.9 p208] He is due for release this year.
Gabe Watson will have served his time in prison and that should be the end of the matter. He is not an Australian citizen and would not have a valid visa beyond his prison term. Hence, it is likely he will be transferred to an immigration detention centre until he can be put on a plane to either America or another country that will offer him a ‘safe haven’.
The family and friends of Tina Watson in her home state of Alabama remain unhappy with the outcome. They argue that only a jury trial for murder could determine his guilt or innocence. Her father said: “He should have gone to trial for murder before a jury. Had that happened I am confident that the judicial process in Australia would have worked.” [See Legal Studies for Queensland Vol 1 9.5 pp 190 –196 on the pros and cons of jury trials]
Currently
The Attorney-general’s department in Alabama commenced its own investigation into the death building a case against Watson that the death of his first wife, Tina, on the Great Barrier Reef was pre-mediated. They say they have evidence that he plotted and planned Tina’s murder. They want him on release from prison here to be extradited to Alabama to stand trial for first degree murder – despite the Queensland conviction for manslaughter. Alabama authorities have requested Watson’s case file from Queensland police in a bid to try him for murder and have indicated they will seek the death penalty. They have criticised the Queensland government for not providing necessary information. Their Attorney-General said: “If an Australian’s loved one was (killed) in Alabama, we’d be co-operating so fast their heads would spin.”
Death Penalty:
Australia does not have the death penalty for any offences. Alabama has the death penalty as a sentencing option for first degree (pre-mediated) murder. Extradition is a federal, not State, matter. Under Australian federal laws, the Extradition Act (Cth) 1988 prevents a minister from surrendering a person to be prosecuted for an offence that carries the death penalty. Hence, the only circumstances where Watson is likely to be sent back to the US is if there is an undertaking that the death penalty won’t be imposed or, if it is imposed, it will not be carried out.
See s22 (c) Extradition Act (Cth) 1988.
Is this double jeopardy?
Under the Queensland Criminal Code murder and manslaughter are alternative verdicts. Hence in Australia Watson cannot be tried a second time for a crime for which he had already been in jeopardy and punished as this double jeopardy. [On double jeopardy see Legal Studies for Queensland Vol 1 9.9 pp 208-212] However, Alabama lawyers argue that there is no “international standard” on double jeopardy, and that it is would not be prosecuting someone twice for the same offence, especially as Watson didn’t plead guilty to murder and was never tried for that offence before a jury.
Section 7 of the Extradition Act (Cth) 1988 states that there is an objection to extradition where: the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
The case of Gabe Watson remains one to watch.
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01.14.10
Posted in Crime and Society, Law in a Changing Society at 6:19 pm by admin
The suspension of tasers (after the death of a tasered man in June 2009) has ended and police will now be able to resume using them to settle violent and difficult confrontations. Trials of cameras being attached to tasers (taser-cams) have commenced as a way of monitoring use of these stun-guns by police.
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Posted in Crime and Society at 6:02 pm by admin
The coroner investigating Michael Jackson death (at age 50) has ruled that it was a homicide. Death was caused by acute intoxication of the powerful anaesthetic drug propofol along with other sedatives. There were no illegal drugs found in his system. His doctor is being charged with manslaughter arising from gross negligence in the treatment and care of his patient Michael Jackson.
What is required for a manslaughter convicted is covered in legal Studies for Queensland Vol 1, Ch 7:131 – 137. Note the case study on Jayant Patel -p 136 and the practical application -p137. For the difference between civil and criminal negligence see; p322 -325.
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12.08.09
Posted in Crime and Society, News, The Legal System at 10:26 am by admin
In responding to the recommendations of Moynihan Report a bill was submitted to Queensland’s parliament on 24th November with the expressed aim of modernising Queensland’s civil and criminal justice system. The existing law is set out in Legal Studies for Queensland Chapter 9 – Going to Trial – pp180 216. However, if this bill becomes law, there will be some changes as part of the modernisation process.
Proposed changes include:
§ extending the general criminal jurisdiction of the District Court for indictable offences from a maximum penalty of 14 years’ imprisonment or less, to those with a maximum of 20 years or less
§ abolishing committal hearings,
§ abolishing defendant’s elections for summary trial,
§ requiring a range of indictable offences to be tried summarily, including, stealing, receiving stolen property, fraud, forgery, wilful damage, certain burglaries, dangerous driving and escaping from lawful custody.
§ changes to bail
§ extending the time limits for prosecution of a simple offence.
For more information see:
Media Release by the Attorney-General, Mr Cameron Dick.
http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=67572
Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2009
http://www.parliament.qld.gov.au/view/legislativeAssembly/tableOffice/documents/TabledPapers/2009/5309T1476.pdf
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12.02.09
Posted in News, The Legal System at 7:33 pm by admin
Today, the 2nd of December, 2009, the Senate did not pass the government’s ETS (Emissions Trading Scheme) bill. The Liberal Party, the Greens and the two independents in the Senate, Steven Fielding and Nick Xenaphon, rejected the bill. This was the second rejection of the ETS legislation. It gives the government the option, or the trigger, for a double dissolution of Parliament, if they so wish.
What this means is that in a bicameral system of Parliament (two Houses) it does happen on occasions that a deadlock arises in which the Senate rejects legislation successfully passed in the House of Representatives. Our founding fathers recognised this may occur from time to time and provided a mechanism for resolving such deadlocks, if and when, they arise. The mechanism is laid down in s57 of the Constitution.
S57 is a complex section and requires the following
· House of Representatives has passed bill
· The Senate votes to reject the bill
· An interval of three months must elapse
· After this time the House of Representatives passes bill again
· The Senate again rejects the bill.
· Prime Minister may advise Governor-General to dissolve both houses
· A general election for the Senate and the House of Representatives is held.
· If the House of Representatives again passes bill for the third time and the Senate rejects the bill for the third time
· Then a Joint Sitting of both houses occurs to resolve the disagreement. An absolute majority of the total numbers of members of Parliament either passed or rejects the bill.
· If passed by the majority of both houses the bill becomes law with the assent of the Governor General. If it is rejected, then it does not become law.
There have been six double dissolutions in the history of the Australian Parliament: 1914, 1951, 1974, 1975, 1983, 1987 with mixed results. The government can and they have lost in double dissolution elections (three out of the six) so it is always a risky strategy. But from the perspective of Constitutional law and politics it is always interesting.
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Posted in Environent, International Law at 3:05 pm by admin
This week is the 50th anniversary of the Antarctic Treaty which originally had 12 countries agree that Antarctica (land and sea) should only be used for peaceful purposes and science. Since 1959 a further 35 countries have signed the treaty. It is seen as a success for International law showing that international co-operation is always possible when the cause is important. However, not all countries of the world are signatories.
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Posted in Crime and Society, Technology, Torts at 2:31 pm by admin
In Legal Studies for Queensland Vol Two Chapter 33: Law of Cyberspace, the issues pertaining to the use of social networking sites were canvassed. In Chapter 32 Cybercrime there was also an overview of criminal offences that occur on the internet. There is a new one to add to the list – criminal defamation via Facebook. This is something all 6 million + Australian Facebook users need to keep in mind. The Adelaide man who was convicted of criminal defamation had put photos of the police-officer on the Facebook site along with offensive, incorrect and clearly defamatory comments.
The following is a blog post from IP Whiteboard – the blog of Mallesons Stephens Jaques submitted by Julia Atcherley on 30 November 2009 .
“Be careful what you write on Facebook! Adelaide teenager Christopher Cross has recently been convicted for criminal defamation after posting material about a local policeman on a Facebook site. Cross said that he “didn’t realise you could get in trouble for things on the internet ”. Pleading guilty in the Kadina Magistrates Court to criminal defamation, Cross became only the second person in South Australia ever convicted of the rarely used charge. He now has a criminal record and was sentenced to a 2 year good behaviour bond.
The message for Cross and any other users of social media is that although anyone can publish material on social media, the laws that apply to traditional media will still apply. Social media is published in real time and the posts are often permanent.“
For information on what amounts to defamation see Legal Studies for Queensland Vol One, Chapter 18.
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12.01.09
Posted in Crime and Society, International Law, Uncategorized at 8:03 pm by admin
White Ribbon Day this year was on November 25th. It is the day which the United Nations has set aside to condemn violence against women. Homicide – the most heinous of offences – all too frequently occurs in family settings. This includes homicides that involve partners, former partners and family members, including women and children.
In Australia, the Australian Institute of Criminology released research undertaken of domestic related and other homicides to correspond with this date. It is sobering reading.
http://www.aic.gov.au/publications/current%20series/rpp/100-120/rpp104.aspx
For information on White Ribbon day see; http://www.whiteribbonday.org.au/
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