I don't think that they like him

A nice denunciation from the UK Guardian -

The UN's scientific and cultural organisation, Unesco, has put on hold the award of a prize for "improving the quality of human life" paid for and named after one of Africa's most authoritarian, brutal and corrupt rulers.

The prize, aimed at scientists, is funded with a $3m (£2m) donation by President Teodoro Obiang Nguema Mbasogo of Equatorial Guinea who is regarded as having made a major contribution to human misery as well as curtailing more than a few lives. It was to have been awarded later this month but has been suspended following an international outcry.

Obiang, 68, is known not only for having his predecessor executed and the arbitrary arrest and torture of political opponents but for plundering his country's oil wealth while many of its people live in poverty.

A Grauniad criticism of some of the Middle Eastern monsters would now be in order.

Fake MD

The ABC reports on another medical practitioner who wrote his own qualifications and has now been sentenced by the NT Supreme Court to 14 months in prison.

Singapore national Balaji Varatharaju, 29, was employed as a doctor at the Alice Springs Hospital for nine months. The news report indicates that 'medical staff became suspicious of his lack of clinical knowledge, leading to the discovery that he had forged his medical degree from Adelaide University. Varatharaju had been enrolled in the six year medical degree but was expelled for forging a senior lecturer's signature on a research paper and for attempting to change an E-grade into a B-grade.

Blokland J commented that Varatharaju, who also pleaded guilty to the aggravated assault of a patient during a medical procedure, had breached the trust of patients and the medical board with a deception that required "some significant confidence and audacity". "The breach of faith with the Alice Springs Hospital and the medical board are of a high order given the deplorable consequences that can flow from such deception."

Varatharaju's lawyer told the court that the bogus doctor's motivation was to help people, rather than money. Of course he is remorseful for his actions.

We might want to enhance our vetting of medical practitioners.

Offshoring, Secession and Sovereign Citizens

A friend points to a BBC item on supposed plans in Andhra Pradesh to set up an outsourcing unit in a jail, with "200 educated convicts" handling "back office operations like data entry, and process and transmit information". Oh joy. The proposed unit is described as a public-private partnership between the Andhra Pradesh department of jails and Radiant Info Systems.

The idea is to ensure a good future for the educated convicts after they come out of jail," CN Gopinath Reddy, director general of prisons in Andhra Pradesh, told the BBC. "With their experience of working in the BPO [business process outsourcing] in jail, any company will absorb them in future." ... The unit, which is expected to undertake back-office work for banks, will work round the clock with three shifts of 70 staff each.

The intention is that the work "will also be financially rewarding for the prisoners", and "benefit the inmates as well as help the IT company make some profits". If the unit is successful the outsourcing could be extended to other jails in the state. Be afraid, be very afraid.

In Williamson v Hodgson [2010] WASC 295 - originating as a traffic dispute - the WA Supreme Court has considered pseudolegal claims. 

The Court states 

[13] Mr Williamson submitted that the learned magistrate erred in law by refusing his request for a trial by jury. 

 

[14] Mr Williamson submitted that he was entitled to a jury trial by virtue of s 80 of the Commonwealth Constitution. This section provides: 

 

The trial on indictment of any offence against any law of the Commonwealth shall be by jury and every such trial shall be held in the State where the offence was committed and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. 

 

[15] This section does not apply to this case. Mr Williamson was not charged on indictment with an offence against the Commonwealth. He was charged with a simple offence against the law of Western Australia. Under Western Australian law only certain offences can be tried by judge and jury. A citizen is only entitled to a jury trial if he or she is charged with an indictable offence in either the Supreme or District Courts; pt IV of the Criminal Procedure Act 2004 (WA). 

 

[16] A speeding offence is a simple offence which can only be tried in the Magistrates Court; s 11 of the Magistrates Court Act 2004 (WA). The learned magistrate was right to refuse Mr Williamson's request for trial by a jury. He had no power to do so. This ground has no merit. (iii) Alleged contraventions of United Nations Covenant on Civil and Political Rights 

 

[17] Mr Williamson submitted that the provisions of the Road Traffic Act 1974 (WA), and I will assume the Road Traffic Code, are unlawful because, he says, they are inconsistent with the United Nations International Covenant on Civil and Political Rights (UN Covenant). Australia is a party to the UN Covenant but it has not been incorporated into Australian law and does not operate as a direct source of individual rights and obligations under that law. 

 

[18] The position is simply stated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, where at 286 - 287 Mason CJ and Deane J said: 

 

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. 

 

[19] Mr Williamson submitted that s 58A and s 102A of the Road Traffic Act are inconsistent with the UN Covenant. In brief terms, these sections provide that when an infringement notice is left on a vehicle, the licence holder of that vehicle, called the responsible person, is deemed responsible for that infringement notice unless he or she informs the police of the identity of the infringing driver. Moreover, a responsible person, if requested by a police officer to give information about the driver, commits an offence if that driver fails to make reasonable measures to comply with the request. 

 

[20] With respect, Mr Williamson's submission on this point is misconceived. First, the provisions are not inconsistent with the UN Covenant. Second, even if they were the inconsistency does not make every provision in the Road Traffic Act and the Road Traffic Code invalid. Third, Mr Williamson was not charged as a responsible person. He was identified as the driver and admitted that he was. Fourth, the UN Covenant is not in any event part of the law to be applied in the case by the learned magistrate. This submission cannot succeed. 

 

[21] However, this is not the only submission that Mr Williamson made based on the UN Covenant. Mr Williamson alleged that the learned magistrate treated him in such a way as to infringe his rights under article 14 of the UN Covenant. Essentially, this is an allegation of actual or at least apprehended bias and I will treat it as such. 

 

[22] Mr Williamson alleges that the learned magistrate did not bring an impartial and unprejudiced mind to the case. The tests for actual and apprehended bias were set out in Gamage v State of Western Australia [2008] WASCA 49. There Steytler P said [54]: There is no dispute concerning the test to be applied when it is alleged that a judge has been, or might be, actuated by bias. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. ... 

 

[23] In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said [11] - [12]: 

 

[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision'. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. (footnotes omitted) 

 

[24] The fair-minded lay observer is one who should be taken to have informed himself or herself '... on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' Johnson v Johnson [53] per Kirby J. See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87. 

 

[25] Kirby J set out in Johnson v Johnson [46] some considerations which a Court will take into account when judging bias. Further, at [52] he states the knowledge that should be imputed to the fictitious bystander. I found these statements useful in judging the learned magistrate's conduct in this case. 

 

[26] I have carefully read the transcript of proceedings. The prosecution case was wrapped up very quickly without objection. Mr Williamson made it clear he did not dispute the facts. The learned magistrate then heard from Mr Williamson. Mr Williamson did not give evidence, rather he made submissions. In truth what occurred was a lengthy dialogue between Mr Williamson and his Honour that occupied 30 or so pages of transcript. 

 

[27] His Honour's task was difficult. With great respect to Mr Williamson some of his submissions were hard to understand and were irrelevant. Some of the submissions he made related to issues that had already been decided by the Court of Appeal. 

 

[28] On the other hand I recognise that his Honour too drifted into irrelevancy. For example, his Honour early in Mr Williamson's submissions made irrelevant comments about the effects of speeding drivers on our roads. Later, Mr Williamson and his Honour engaged in discourse about the republic and the evolution of the law. 

 

[29] At one point (ts 9), Mr Williamson alleged that his Honour swore at him. The alleged swearword is not transcribed and appears to me, if it was uttered, to be totally out of context. Mr Williamson, who is articulate and not reticent about making a point, made no comment about it at the time. I am not satisfied that his Honour swore at Mr Williamson. 

 

[30] Looking at the transcript as a whole, it seems to me that Mr Williamson was given an ample opportunity to make all his points and he did so. 

 

[31] His Honour attempted during the making of submissions to understand them and to point out the flaws in those submissions. He did so often in unambiguous language, calling some of Mr Williamson's submissions 'complete nonsense' and 'complete and utter nonsense'. In my opinion his Honour was entitled to indicate his views to Mr Williamson in firm terms. 

 

[32] There were a few occasions where the learned magistrate was sarcastic towards Mr Williamson. For example (ts 9), when Mr Williamson sought a trial by jury his Honour asked, 'Where are they, your peers, at the moment? Will you look up the Yellow Pages for your peers?' When Mr Williamson made the submission that he had seceded from Australia, his Honour said, 'You're Prince Leonard of Toodyay'. 

 

[33] With respect to his Honour, sarcasm is inconsistent with the judicial obligation to be respectful to litigants and should be avoided. However, I do not think that its use here indicated bias. 

 

[34] I accept that at times, but by no means all of the time, his Honour displayed less than perfect courtesy, patience and tolerance. For example, out of exasperation, I suspect, his Honour made the inappropriate comment shortly before sentencing Mr Williamson, 'I feel like giving you life imprisonment'. 

 

[35] In my opinion, a fair-minded lay observer, being aware of all the relevant circumstances of the case would not have thought that his Honour was biased against Mr Williamson. It cannot be overlooked that Mr Williamson admitted all the elements of the offence and that the submissions that he made were entirely without merit. 

 

[36] While his Honour might have conducted the proceedings better, no injustice has been caused to Mr Williamson. This ground has no merit. 

 

(iv) Alleged secession 

 

[37] Mr Williamson claims to have seceded from the Commonwealth of Australia and that he is not subject to the Road Traffic Code. He said today that the UN Covenant has given him this right. With respect to Mr Williamson, this is a misinterpretation of this document. 

 

[38] The only lawful means by which land ceases to become a part of the state is set out in s 123 of the Commonwealth Constitution. The procedure described in this section has not been followed. Mr Williamson, or more correctly the land he has some connection with, has not lawfully seceded. Even if some part of the state to which Mr Williamson occupies had seceded, Glen Forest where Mr Williamson's driving occurred, remained part of Western Australia. 

 

[39] Any person whether a citizen of Western Australia or somewhere else is liable to abide by the laws of Western Australia including its road traffic laws. This ground has no merit. 

 

(v) Alleged invalidity of the Magistrates Court 

 

[40] Mr Williamson submitted today that the Magistrates Court did not have the lawful authority to try him since the passing of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (the Act). 

 

[41] Broadly speaking, the Act changed references from the Crown and Her Majesty in the statutory law of Western Australia to the State and the Governor. As I understood Mr Williamson's submissions, the Act unlawfully effects an amendment of the State Constitution as to the authority of the Crown and the Monarch. The consequence of this, he says, is that courts sitting under the name of the State, such as the Magistrates Court, are invalid and their decisions are also invalid. 

 

[42] This submission has been put to and comprehensively rejected by the Court of Appeal on several occasions. I am bound by those decisions, but it is not simply a matter of following precedent. Those decisions are undoubtedly correct. The Act does no more than change the terminology used in many statutes. It does not and could not amend the State Constitution. Even if it unlawfully amended the State Constitution, this would not invalidate a court's powers or a court's judgment or order . As to this see Glew v Shire of Greenough [2006] WASCA 260 [16], [20]; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; and Glew v The Governor of Western Australia [2009] WASC 14. This submission has no merit. 

 

(vi) Alleged invalidity of prosecuting entity 

 

[43] Another submission made today in the course of argument was that the entity who issued Mr Williamson with the infringement notice had an Australian business number or ABN. Mr Williamson submitted that he was therefore being prosecuted by a corporation and not the police. 

 

[44] A person or entity does not become a corporation because that person or entity has an ABN. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover above a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN. 

 

[45] An ABN holder may be an individual, a corporation, a partnership or government entity. It is not necessary that the entity be engaged in a profit-making venture. It is irrelevant to the validity of the infringement notice or any subsequent prosecution that the entity who issued the infringement notice had an ABN. In any event Mr Williamson was not dealt with under the infringement notice provisions of the Road Traffic Act. He was dealt with in Court. The prosecution was initiated by a police officer, a person who had the relevant authority to prosecute Mr Williamson. This ground has no merit.

Missing passports

Australian passports are of interest as official mechanisms that facilitate travel and government assistance and serve as primary identity documents in public/private interactions within Australia for people who do not have a driver licence (eg in renting a video or meeting '100 Points' identity verification requirements in opening a bank account.

It is thus interesting to see a 25 page report [PDF] by the Commonwealth Ombudsman on the handling, or mishandling, of missing passports.

The Ombudsman indicates that -

More than a million passports are sent through the Australian post each year. Most commonly these are new passports issued by the Department of Foreign Affairs and Trade (DFAT) and passports sent to and from diplomatic missions for visa purposes. Australia Post carries the majority of these passports.

The Postal Industry Ombudsman noted an increase in complaints about passports going missing in the post, from 1.2% of total complaints about Australia Post in 2007–08 to 2.2% in 2008–09. Although these complaints comprise only a small overall percentage of complaints to our office, we consider that the security and financial implications involved in the loss of a passport warrant treating this kind of complaint seriously.

The most frequent passport-related postal complaints brought to this office are first, that a passport has been lost, and second, that the amount of compensation offered by Australia Post for the loss of the passport is inadequate. In investigating Australia Post processes and practices relating to its handling of complaints about lost passports we considered: how Australia Post deals with complaints of this nature the postal services used by passport holders and the compensation arrangements available in case of loss.

The Ombudsman sought information from DFAT, as a bulk sender of passports and the agency responsible for issuing passports and dealing with reports of their loss. It goes on to report that -

As a result of our investigation, we have concluded that there are measures that both Australia Post and DFAT could put in place to capture better data about lost passports. This would enable more useful analysis of patterns of loss and expose possible systematic stealing of passports.

We have also concluded that Australia Post should redraft its terms and conditions and other information it makes available to the public about how to send passports through the post, and the compensation payable if a passport is lost. Updated versions could clarify the postal services available to customers and the protections for customers against the direct costs of loss of a passport.

Generally speaking, we do not consider it unreasonable for Australia Post to exclude payment of compensation for consequential loss (such as loss of income related to time off work) from its terms of service. Customers should be made aware of this, and should make passport and visa arrangements in ample time to deal with matters if a passport is lost. If that is not possible, customers should consider alternative arrangements that avoid the risk of loss in the course of carriage.

This report deals mostly with the inconvenience and damage encountered by members of the public when a passport is lost in the post. There are, of course, other considerations that make it important to minimise the risk of lost passports. Chief among these is the need to safeguard the integrity of the Australian passport system and reduce the risk for individuals that their personal information will be obtained by a third party. The danger of identity theft is a prominent concern within government. The recommendations in this report could go some way to reducing those and other risks.

Unlovely

Paul Sheehan notes proceedings in the appeal against the decision by McLellan J in Trad v Harbour Radio Pty Ltd [2009] NSWSC 750, defamation action by colourful personality Keysar Trad.

Sheehan's opinion piece comments on Trad's "performance under oath" last Friday, reporting that

the counsel for the defence, Richard McHugh, SC, delivered this devastating portrayal of his credibility under oath: "[Trad] attempted to evade responsibility for his statements by claiming he was misquoted, by claiming he was taken out of context, by claiming he had changed his mind, or by claiming he did not even know what he had said or written at the instant he said or wrote it. He was entirely disbelieved.

"[His] evidence that he did not know who was the author of Mein Kampf - and his feigned attempts at a thought process to recollect the author's name - were a low point in this trial. The transcript in this case can supply only a colourless picture of the evidence at trial." ...

This appeal was an attempt, McHugh argued, to turn the case into one about "freedom of speech and freedom of religion, and that the appellant has been unfairly branded as a racist, homophobic, terrorist-supporting, woman-hating bigot when all he was doing was expressing views consistent with his Islamic faith and his role as a prominent Australian Lebanese community spokesman … The question here is whether the deliberate peddling of grossly sexist, homophobic, anti-Semitic filth is not dangerous and disgraceful and an incitement to violence and racist attitudes in Australia in 2010. The most extraordinary claim is that his extreme views are [a] 'Muslim view'. This ought not to be accepted."

The arguments by Clive Evatt on behalf of Trad and the decision on the latter's appeal are awaited with interest. The Gazette of Law & Journalism tartly reported on Friday's proceedings with the teaser that "Legal sophistry reaches new heights as plaintiff barrister Clive Evatt likens Sheik al-Hilali to John Milton ..."

Aviation crime

The Australian Minister for Home Affairs, Brendan O'Connor, has proposed tougher penalties for aviation-related crime such as bomb hoaxes, 'air rage' and endangering an aircraft in flight.

The proposed change would involve amendment of the Crimes (Aviation) Act 1991 (Cth), with the maximum penalty for hoax offences - a false threat to destroy, damage or endanger an aircraft or airport - increased from two years to 10 years imprisonment.

Under the proposal, maximum penalties for aviation-related crimes will be provided within four categories -

* 10 years jail for hoax offences such as calling an airline and saying a bomb is on a plane or threatening to bomb an airport (currently a two year maximum jail term)
* 14 years jail for offences against aircraft or aviation environments, such as damaging a runway or air traffic control facilities at a major airport (currently a maximum jail term of seven or ten years)
* 20 years jail for very serious offences that pose danger or cause harm to groups of people, such as assaulting a pilot or endangering an aircraft while in flight (currently a maximum jail term of seven, 14 or 15 years)
* offences such as hijacking or destroying an aircraft and being reckless as to causing death (life imprisonment).

Three new offences are proposed -

* Assault of an aircraft crew member - a maximum penalty of 10 years imprisonment
* Reckless endangerment of an aircraft, where danger of serious harm or death can be shown - a maximum penalty of 14 years
* Having dangerous goods onboard an aircraft, where there is a risk of serious harm or death - a maximum penalty of 14 years.