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Letters to the editor

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Cite as: Jan/Feb 2010 85(1/2) LIJ, p.8

Australia Day to remember

Australia Day 2011 reminded me why Australia is still a lucky country and why my dad put me on a boat in 1978 to escape from communist Vietnam.

It would not be an easy decision for any parent to put their child on a small boat and hope or pray that they would see that child again and that that child would make it to Australia.

And why would any parent in their right mind do such a thing to their child? Personal liberty, freedom and an opportunity to live without fear are just a few valid reasons. Now that I have been in Australia for a few years, procedural fairness and freedom of association are right up there with the other reasons.

In recent federal elections and the 2010 Victorian election campaign, “law and order” and “asylum seekers” were hot topics. By playing fear into our minds, certain politicians and authorities have made it an art in passing legislation that has been chipping away at our civil liberty. As learned people, we let these politicians and authorities go too far.

For example, last October an experienced barrister and I took my 16-year-old work experience student to observe the “terrorism trial”. The student was not allowed to enter the courtroom simply because she did not have photographic identification with her. You do not think that there is a problem? Please check your pulse. You may be dead.

If personal liberty was not so important, [Victorian Supreme Court] Justice [Kevin] Bell would not have observed that “nothing tears to shreds more completely the whole idea of the rule of law than unlawfully restraining the personal liberty of the individual”.

We are learned people, guardians of this country’s rights. Those rights include, but are not limited to, personal liberty, the right of association, procedural fairness, and freedom of speech. Do not leave it just to the High Court to do our work; we know not many cases make it to that Court.

Remember our rights (or what’s left of them) and speak out against those politicians and authorities who want to continue to chip away at them.

Do so even if it might cost you a spot on the bench. If you remain silent, one day you may have to put your child on a little boat to make an escape.


For providing the letter of the month, Jeff Tran has won a $50 book voucher from the LIV bookshop, redeemable for the next 12 months.

No need for section

I note that Anthony J. Edwards in his letter headed “Deposit disagreement” (November 2010 LIJ, page 10) wants to hear the views of other practitioners.

In my view, s27 of the Sale of Land Act should have been strangled at birth. In 56 years of practice, I used it only once and then unwillingly.

I was acting for a deceased estate in the sale of a Melbourne suburban property. It was the agent who forced the issue. He wanted his cut, so he went to my executor clients and demanded that the deposit be released. I had no alternative but to comply with their instruction.

Lo and behold, the agent sent me a cheque for what I considered to be the wrong amount – far more than he should have. He had to come to me cap in hand to beg that I rectify the situation. To think that it was a 30-day settlement.


Back munitions convention

One of the encouraging events occurring in the international community was the relatively rapid finalisation of the Convention on Cluster Munitions in Dublin by 107 States on 30 May 2008.

Also encouraging was the relatively rapid coming into force of the Convention on 1 August last year. Also encouraging was that Australia moved to implement the Convention by the introduction of a Bill into Parliament on 27 October 2010.

Australia has been prepared to claim moral leadership in the task of banning these weapons. They are immoral and pernicious and have the potential to cause indiscriminate civilian casualties, especially children, both during active hostilities and long after peace has descended on the scene.

It is very disappointing that Australia’s proposed legislation contains express permission for countries which are not parties to the Convention to stockpile, retain and transfer cluster munitions – including in Australia – if the activities are related to the operation of a military base in Australia, or an aircraft or ship operated by that foreign country in Australia.

The government is relying on an exemption in article 21 of the Convention, which allows a party to engage in military cooperation with states that are not parties to the treaty. Article 21 also provides that, while you can cooperate with non-parties, you are not let out of your obligations.

Disappointingly, Australia has extended the cooperation exemption so as to welcome cluster munitions into Australia.

It is hardly implementation that recognises the desperate humanitarian need to limit and eventually abolish the use of these weapons of mass destruction of innocents.

The exemptions that the government proposes will detract from Australia’s ability to provide moral leadership in the months and years ahead.

Will current plans for greater military cooperation between the US and Australia involve the use of Australian soil to store and, ultimately, deliver cluster munitions to the children of the world?

Laos was chosen as the country to host the first meeting of parties to the Convention because its people have been affected greatly by those weapons which were dropped by American planes over 37 years ago.

I urge your readers to put pen to paper to write to government ministers and MPs to demand a less mealy-mouthed implementation of the Convention on Cluster Munitions.


Castan Centre anniversary

I wish to thank you for publishing such a generous article on the Castan Centre to mark our 10th anniversary (November 2010 LIJ, page 40).

We greatly appreciate you going to such lengths to cover the event and the centre’s achievements.

I hope you don’t mind me pointing out a small error in the text: in the final column, the article specifies that Melissa Castan and Dr Julie Debeljak are the centre’s deputy directors. In fact, we have five deputy directors, the other three being Professor Susan Kneebone, Dr Adam McBeth and Dr Paula Gerber.


No trap in water statement

I found Norman Mermelstein’s letter (“Water tap”, November 2010 LIJ, page 10) about water information statements (prescribed under s75 of the Water Industry Act) very curious.

He suggested there is a ”trap” in practitioners obtaining only this statement from South East Water (or the other two metropolitan water authorities).

The only “trap” is for practitioners who don’t read the statement which, as Mr Mermelstein quotes, recommends you obtain a copy of the property sewerage plan whenever a combined drain or similar encumbrance may exist.

All you need to do is read the statement and then unless you are negligent you will get the plan. There is no trap. The Liability Committee’s advice is perfectly adequate.


History against national regulation

I have long been opposed on constitutional and practical grounds to the present regulation of the profession in Victoria, and oppose the proposed national regulation scheme on the same grounds.

I made a long submission to the taskforce in August and recently sent a copy of that submission to [state Attorney-General] Robert Clark. It occurred to me that I should probably have sent a copy to the LIV at the time and have done so.

In a nutshell I have taken 21 pages to say that our constitutional history establishes that it is not in the public interest for lawyers to be controlled by executive government and that the notions that lawyers must apply for an annual work permit from the government, and that the government can impose “ethics” in the guise of “professional practice rules”, are self-apparently constitutionally repugnant.

I have also pointed out the unfairness and function creep that occurs when policy goes astray like this.

I imagine the LIV and everyone else will say that it is too late to unscramble the egg, even if what I say is right. I do not agree with that position. It is never too late to fix something that is plainly wrong.



In the Victorian Law Reform Commission’s column “Making an impact in a year of change” (December LIJ, page 76), it was reported that the VLRC’s report Supporting Young People in Police Interviews “was recently delivered to Mr Hulls". It was actually delivered to Mr Hulls’ successor as Victorian Attorney-General, Robert Clark.

We welcome letters to the editor of no more than 400 words.

Email: 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.


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