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Cite as: (2005) 79(4) LIJ, p. 8


We welcome letters to the editor of no more than 400 words.
Email: letters@liv.asn.au. Fax: 9607 9451.
Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263C, Melbourne 3001; or DX 350 Melbourne.
We reserve the right to edit letters and to republish them in their original or edited form on the Internet or in other media. Letters must include a phone number and address for authentication.

Imperfect match

I concede that I am a senior practitioner and that my tolerance levels may have diminished slightly with the passage of time but I do not feel I will be alone in questioning whether an article on the benefits and experiences of Internet dating [“You’ve got male”, January-February 2005 LIJ, page 85] evidences or comes within cooee of possessing “merit”, particularly in the context of a professional journal.

By all means continue to keep us well-informed about legal and professional matters and keep us similarly well-informed about practice issues of relevance to female practitioners as “According to Merit?” usually does – but leave dating, romantic, relationship and decidedly private matters to the Cleos and Cosmopolitans of the world. What’s next: “how to breastfeed during court appearances” or “how to combine your IVF program commitments with the partners’ weekend conference”?

Spare me, and the rest of the profession, Susan Borg’s threatened follow up article, and return this column to the tone and standing it has displayed to date.

Bronwyn L Crook
General counsel
Guild Insurance & Financial Services

For providing the letter of the month, Bronwyn Crook has won a $50 book voucher from the LIV Bookshop, redeemable for the next 12 months.

A rule that should be broken

Gordon Hughes and Ian Oi [“Shrinkwraps, clickwraps and webwraps: the overseas experience”, January-February 2005 LIJ, page 34] highlighted the fact that it is difficult for practitioners to protect their clients where they incur “contractual commitments incurred through ignorance or inattention”, and I would suggest that this ignorance or inattention is the rule rather than the exception.

Recently, a US vendor posted a reward within the body of its webwrap agreement as a test to see who actually read this agreement. Software users were required to accept the webwrap agreement before downloading and using the software. It took four months and more than 3000 software downloads before someone actually read the detail of the webwrap agreement and claimed the reward (US$1000) that was buried in the text. Although this would seem at first glance a startling example, I would argue that the proportion of normal business contract terms and conditions that go unread would be much higher.

Adam Reynolds
Proficio principal and LIJ columnist

Begging a socio-economic and welfare issue

The issue of the legislative and community response to begging was an issue raised by politicians and the media [last month] with some suggesting that begging remain a criminal offence and that people be moved from the streets for the Commonwealth Games.

The Council to Homeless Persons (CHP) and a range of other community groups support the decriminalisation of begging and recommend that a resourced collaborative government and community strategy be developed to respond more effectively to begging and its underlying causes.

The main arguments for decriminalising begging include:

  • begging is a socio-economic issue requiring a welfare response. The criminal law is not equipped, appropriate or necessary to deliver this response;
  • criminalisation exacerbates the underlying causes of begging. The imposition of fines for begging is punitive, causing severe financial, social and psychological hardship. Incarceration may perpetuate underlying begging behaviours such as social isolation and exclusion, frustration and a sense of disempowerment. Community-based orders impose numerous onerous conditions with which people who are homeless may be unable to comply;
  • domestic laws that criminalise begging breach international human rights covenants, and are inconsistent with other anti-discrimination legislation. Anti-begging laws fail to account for the disadvantaged position of people who are poor;
  • current legislation adequately proscribes aggressive or undesirable conduct by all citizens, therefore it is not necessary to make begging a criminal offence; and
  • research indicates that people who beg are usually the most marginalised, disadvantaged and disenfranchised in society, requiring support and accommodation not criminal sanction.

The criminalisation of begging is costly and wasteful of resources such as the police, correctional centres, the courts and the broader community. For individuals it fails to address their underlying needs and exacerbates their circumstances, for police it requires more time and resources, for the courts it ties up time and resources which should be devoted to criminal matters and for the public it results in a more stratified, less cohesive and less safe community.

Victoria hosts a range of international and national events. It is important that visitors to our state can witness an open, caring and compassionate community that has a strategy and commitment to supporting our most marginalised people.

David Wright-Howie
Policy Officer
Council to Homeless Persons

Justice denied . . .

Much was made last year of the release of Victoria’s first Justice Statement – a blueprint, among other things, to set the Bracks’ human rights agenda for the next decade or so.

Included was an undertaking to introduce a “Bill of Rights” supported by an all-of-government commitment to tackle discrimination in the community by improving compliance with the Equal Opportunity Act and by vetting all legislation to ensure unintended discrimination does not happen.

Despite this latter undertaking, in the past few months alone, two pieces of government legislation have been presented to the Parliament that are inherently discriminatory of our society’s most marginalised minority group – those who experience the unusual variation in sexual formation known as transsexualism.

The worst example is that found in recent amendments to the Births, Deaths & Marriages Registration Act 1996 that recognise the contemporaneous physical circumstances and common law sex of a person with transsexualism after surgery.

The grant of this right to be identified by the state as a member of the sex assigned to one by medical intervention and the common law, however, is subject to restrictions that deny it to those who are not adults, those who are not “unmarried”, and those who cannot undergo full surgical procedures because of health impediments.

The plight of young people with transsexualism was graphically described by former Family Court Chief Justice Alastair Nicholson in the judgment known as Re Alex. In this case, a boy born overseas but a citizen of Australia had to be enrolled at school using his female birth certificate and was unable to obtain a passport in the sex with which he so totally identified.

Those very few who have undergone sex affirmation while remaining in a prior valid marriage are faced with an impossibly cruel choice between the happiness of their partner and the sanctity of their family, or their own individual release from the wrong identity that has held them trapped for so long.

And those others, especially men with transsexualism, who have been unable to undergo the radical surgical procedures required to alter their phenotypic presentation because of contra-indicating medical conditions or simply the relatively primitive nature of the male construction techniques, have been excluded by a narrow surgical requirement without any discretion.

Finally, in another example, the government decided to amend the Corrections Act 1986 to give an administrative discretion to the Department’s Secretary to deny serving prisoners the right to change their name, irrespective of their reason for doing so and without establishing the circumstances in which such a decision can be made.

While it stops vexatious and deviant applicants from applying to the Registry, it also fails absolutely to recognise the medical nature of transsexualism and the benefits to society of treating it expeditiously and effectively.

Karen Gurney
Researcher
Deakin University Law School

Holding the Executive to account

One of the two Australian citizens held at Guantanamo Bay has now come home.

Although never charged or convicted of any offence, he was held in custody for over three years.

Mr Habib was arrested by Pakistani police on 5 October 2001 and was allegedly beaten and tortured by officials in that country. He alleges that an Australian official was present during some of his interrogations. The Australian government should disclose whether any Australian official was present at the interrogation of Mr Habib in Pakistan, and for what purpose.

Mr Habib was then deported to Egypt. The deportation was contrary to international legal norms. The Australian government should say what role it had in this transfer of an Australian citizen against his will from Pakistan to Egypt.

Mr Habib was held in Egypt for five months, during which time he was allegedly shocked with high voltage wires, hung from metal hooks on walls, almost drowned, and mercilessly kicked and beaten. What knowledge did the Australian government have of these events? What actions did the Australian government take to protect its citizen?

Mr Habib was then sent to Camp X Ray at Guantanamo Bay. Again, there was no formal extradition process. What knowledge did the Australian government have that one of its citizens was being abducted from one country to another against his will? What steps did the Australian government take to prevent such an outrage?

Mr Habib alleges that he received further shocking treatment in Guantanamo Bay. He was told that his family members were dead. He was neither accorded the protections of the Geneva Convention nor (until years had passed) given access to courts to test the lawfulness of his detention.

The Australian government has made no criticism of this treatment of an Australian citizen.

On Mr Habib’s return to Australia, both the Prime Minister and the federal Attorney-General have made statements implying guilt on the part of Mr Habib.

Mr Habib has not been charged with any wrongdoing. But the evidence suggests serious wrongdoing by the Australian government. The rule of law has been seriously undermined by the Executive’s conduct. The Parliament of Australia should call the Executive to account.

Brian Walters SC
President, Liberty Victoria

LIV live on TV?

I am a Monash University Law student, as well as a Law Institute of Victoria (LIV) student member.

I am interested in doing a television program through Channel 31, a consortium of community television programs. The purpose of this TV program is to be the focal point of national and international research from research centres to universities including other bodies such as the LIV.

The program would focus on live legal and political issues, raise awareness of human rights, discuss commercial, constitutional and international law issues and market these.

Are there any people willing to take the challenge on of this initiative – that is, use TV as a viable media option for the law? The research done in the LIJ, for instance, can be readily converted into TV media, I believe.

Imagine the LIV with its own community television program on Channel 31 – 1,000,000 viewers is not bad. What do readers think? They can email me on julio@pacific.net.au.

Julio Altamirano
Monash University law student

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