Wow. Tackling family violence in Victoria. It's a huge topic. A vexed topic. And thankfully it isn't quite the topic of this post.
My work in community legal centres and legal aid has taken me to three different places in Victoria where I have appeared in family violence matters in three different magistrates courts - Werribee, Geelong and now Morwell in the Latrobe Valley.
I'm more familiar with procedures in NSW with Apprehended Violence Orders (AVO) which were once dealt with under Part XVA of the Crimes Act. Victoria has a scheme for granting civil orders protecting victims of family violence which is governed by the Family Violence Protection Act 2008 (FVPA) which was introduced in December 2008. This Act provides for police issuing safety notices and applying to the Court for intervention orders (often referred to as 'IVO's).
Police can also issue criminal charges against the perpetrator where there's enough evidence to base a charge of assault. Criminal charges are made in addition to, not instead of, a civil IVO.
A victim can obtain a final IVO for a defined or indefinite period of time. This can be granted on the first occasion when the matter is in court, and will be granted:
* if the defendant/perpetrator does not show up to court in which case it will be dealt with in their absence. Usually the applicant/victim will be put in the witness box and asked about incidents of violence and the nature of fears to the victim's safety as well as the safety of any children and property of the victim.
* if the defendant/perpetrator does show up and agrees to the making of orders, often without admitting any of the allegations made by the applicant/victim.
If no agreement is reached on the first occasion the matter is in Court, the parties can agree to have the matter delayed ('adjourned') to a future date to allow them more time to negotiate.
Monday, October 29, 2012
Friday, December 02, 2011
Social Security is no piece of cake
“Dole bludger” is a phrase we often hear. So is “Centrelink mum”. They are phrases used to stigmatise people requiring income support (or who are trying to access such support) through the Centrelink system.
Popular mythology tells us that it is so damned easy to dip into the taxpayers’ largesse. Just go to the Centrelink office, fill out a form and viola! Start receiving more money than us poor battlers could dream of.
If only it was that easy. But try reading the Social Security Act 1991 (Cth). Better still, get your solicitor to try reading the Act and make sense of it.
And you thought managing tax was complex.
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Sunday, November 13, 2011
QLD: Some thoughts on Murgon
Murgon is a one-horse town located somewhere between Brisbane and Cape York. No, that isn’t a lie. Okay, it isn’t very helpful.
Here’s a better description.
Murgon is located in the South Burnett Shire. It is inland from Gympie, which is the gun capital of Queensland. Murgon is around 100 km from Gympie. It is also around 40 km from Kingaroy, the peanut capital of Australia and home to a huge number of orthodox and not terribly orthodox Christian denominations.
Speaking of which, Murgon is the home of perhaps the most unorthodox denomination in the southern hemisphere. There’s a bloke from the nearby town of Tingoora who meets with his disciples at the Murgon hall. His message is quite simple really – that he is Jesus Christ. He has a girlfriend with whom he is living in ... er ... sin. Her name’s Mary Magdalene. At least that’s what it is now that she’s changed it.
But for my purposes, Murgon’s most important feature was that it was my home for some four months. It was also my place of work.
In the short time I was there, I grew quite fond of the place. I also grew fond of the people I worked with. Hopefully that fondness was reciprocated.
I worked in what was regarded as the toughest and least desirable location for a solicitor seeking employment in the QLD legal profession. This assessment was made by just about every other QLD lawyer I spoke to. Here’s a sample of the typical and more polite reactions:
“You poor arsehole.”
“Fuck, they sent you there?”
“Mate, they’re all fucking deadbeats over in Murgon. And the clients from there are fucking worse.”
“Murgon, eh? Fucking hole of a place.”
“I wouldn’t last there 4 months.”
Well I did last there 4 months. The people were lovely. The clients were interesting. And I enjoyed the experience immensely.
More later.
Words © 2011 Irfan Yusuf
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Here’s a better description.
Murgon is located in the South Burnett Shire. It is inland from Gympie, which is the gun capital of Queensland. Murgon is around 100 km from Gympie. It is also around 40 km from Kingaroy, the peanut capital of Australia and home to a huge number of orthodox and not terribly orthodox Christian denominations.
Speaking of which, Murgon is the home of perhaps the most unorthodox denomination in the southern hemisphere. There’s a bloke from the nearby town of Tingoora who meets with his disciples at the Murgon hall. His message is quite simple really – that he is Jesus Christ. He has a girlfriend with whom he is living in ... er ... sin. Her name’s Mary Magdalene. At least that’s what it is now that she’s changed it.
But for my purposes, Murgon’s most important feature was that it was my home for some four months. It was also my place of work.
In the short time I was there, I grew quite fond of the place. I also grew fond of the people I worked with. Hopefully that fondness was reciprocated.
I worked in what was regarded as the toughest and least desirable location for a solicitor seeking employment in the QLD legal profession. This assessment was made by just about every other QLD lawyer I spoke to. Here’s a sample of the typical and more polite reactions:
“You poor arsehole.”
“Fuck, they sent you there?”
“Mate, they’re all fucking deadbeats over in Murgon. And the clients from there are fucking worse.”
“Murgon, eh? Fucking hole of a place.”
“I wouldn’t last there 4 months.”
Well I did last there 4 months. The people were lovely. The clients were interesting. And I enjoyed the experience immensely.
More later.
Words © 2011 Irfan Yusuf
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Monday, July 04, 2011
QLD Victims of Crime
Queensland has a (relatively) new scheme for compensating victims of crime. Unless corresponding schemes in Victoria and NSW, the QLD scheme isn’t so much compensation as reimbursement. To quote from their official guide:
If you were the victim of an act of violence that happened on or after 1 December 2009, you can obtain your financial assistance without first having to go to court. If the act of violence happened before 1 December 2009, you will not be able to bring a claim until:
•The offender is convicted in the District/Supreme Court; or
•You’re notified that the offender cannot be convicted.
Violent Crime
The “violent crime” has to have occurred in QLD and must have resulted in your suffering physical or psychological injury.
A violent crime is an act of violence that causes injury to at least one person. It includes:
•Assault
•Sexual assault/rape
•Grievous bodily harm
•Domestic/family violence
•Kidnapping/deprivation of liberty
•Stalking
•Murder/manslaughter
•Death caused by dangerous driving.
Injury
This basically refers to any of the following:
•Disease
•Intellectual impairment
•Mental illness/disorder
•Bodily harm
•Adverse impacts arising from sexual assault
•A combination of these injuries, including resulting pregnancy.
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The Queensland Government provides financial assistance to eligible victims of crime to pay for or reimburse the costs of goods and services you need as a victim to recover from the effects of a violent crime.
If you were the victim of an act of violence that happened on or after 1 December 2009, you can obtain your financial assistance without first having to go to court. If the act of violence happened before 1 December 2009, you will not be able to bring a claim until:
•The offender is convicted in the District/Supreme Court; or
•You’re notified that the offender cannot be convicted.
Violent Crime
The “violent crime” has to have occurred in QLD and must have resulted in your suffering physical or psychological injury.
A violent crime is an act of violence that causes injury to at least one person. It includes:
•Assault
•Sexual assault/rape
•Grievous bodily harm
•Domestic/family violence
•Kidnapping/deprivation of liberty
•Stalking
•Murder/manslaughter
•Death caused by dangerous driving.
Injury
This basically refers to any of the following:
•Disease
•Intellectual impairment
•Mental illness/disorder
•Bodily harm
•Adverse impacts arising from sexual assault
•A combination of these injuries, including resulting pregnancy.
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The Best Interests of the Child
Australian family law is governed by federal legislation called the Family Law Act, enacted in 1975. This legislation sets out how children of a relationship are to be looked after by their parents and how disputes are to be resolved should the relationship break up.
The basic rule is that any court making orders under the FLA must ensure that the best interests of the child are met. Section 60CA states that:
The Objects
Section 60B(1) sets out how the objects of FLA dealing with the best interests of the child are to be met. Four objects are set out:
•Ensuring children can benefit from both parents having a meaningful involvement in their lives;
•Protecting children from physical or psychological harm, from abuse, neglect or family violence;
•Making sure children get adequate/proper parenting to help them achieve full potential; and
•Making sure parents meet duties and responsibilities re care welfare and development of children.
The Principles
Section 60B(2) sets out five principles underlying these objects. These principles apply unless where they are contrary to the child's best interests. The principles are:
•Children have the right to know and be cared for by both parents. This applies regardless of whether parents are married, separated, have never married and have never lived together.
•Children have the right to spend time with and communicate with both parents on a regular basis. Children also have this right when it comes to other people significant to their care and welfare e.g. grandparents and other relatives.
•Parents have joint duties regarding care, welfare and development of children.
•Parents should agree on their children’s future parenting.
•Children have the right to enjoy their culture, including with people who share that culture.
Special Consideration for ATSI Children
When it comes to culture, Aboriginal and Torres Strait Islander children hace special rights which recognise their unique cultures. Section 60B(3) states that an ATSI child's right to enjoy his/her ATSI culture includes the right to maintain a connection with that culture. It also includes the right to have any necessary support and encouragement to explore and develope a positive appreciation of that culture.
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The basic rule is that any court making orders under the FLA must ensure that the best interests of the child are met. Section 60CA states that:
... a court must regard the best interests of the child as the paramount consideration.
The Objects
Section 60B(1) sets out how the objects of FLA dealing with the best interests of the child are to be met. Four objects are set out:
•Ensuring children can benefit from both parents having a meaningful involvement in their lives;
•Protecting children from physical or psychological harm, from abuse, neglect or family violence;
•Making sure children get adequate/proper parenting to help them achieve full potential; and
•Making sure parents meet duties and responsibilities re care welfare and development of children.
The Principles
Section 60B(2) sets out five principles underlying these objects. These principles apply unless where they are contrary to the child's best interests. The principles are:
•Children have the right to know and be cared for by both parents. This applies regardless of whether parents are married, separated, have never married and have never lived together.
•Children have the right to spend time with and communicate with both parents on a regular basis. Children also have this right when it comes to other people significant to their care and welfare e.g. grandparents and other relatives.
•Parents have joint duties regarding care, welfare and development of children.
•Parents should agree on their children’s future parenting.
•Children have the right to enjoy their culture, including with people who share that culture.
Special Consideration for ATSI Children
When it comes to culture, Aboriginal and Torres Strait Islander children hace special rights which recognise their unique cultures. Section 60B(3) states that an ATSI child's right to enjoy his/her ATSI culture includes the right to maintain a connection with that culture. It also includes the right to have any necessary support and encouragement to explore and develope a positive appreciation of that culture.
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Wednesday, June 22, 2011
CRIKEY: Those who judge judges, lawyers need a lesson in depression
Here’s a great way to improve the quality of lawyers in Australia. Ensure that lawyers who want to renew their licences after five years of practice are made to sit through a rigorous psychological and psychiatric examination. They should also provide copies of all medical records.
Why? Lawyers are officers of the court. Some go on to become magistrates and judges. We need our legal profession to consist solely of stable, sane and depression-free individuals. We also need world peace, an end to all poverty and a Prime Minister worth voting for.
Two NSW magistrates have had to front up before the Parliament and explain to a bunch of politicians why their mental illness should not render them unfit to perform their duties. One wonders how many of the honourable members listening have (or should have) appointments with psychiatrists pencilled in their diaries.
This is the same Parliament whose numbers once included an opposition leader whose unfortunate gaffe led to a suicide attempt and admission to a psychiatric clinic. This traumatic roller-coaster ride has not stopped John Brogden from becoming chief executive of the Financial Services Council.
Brogden’s depression, a condition he shares with one in five of his countrymen and women, is not deemed by the financial services industry to render him incapacitated to do his job of overseeing the investment of about $1.4 trillion through superannuation, funds management and life insurance organisations. Yet for some reason, the Judicial Commission in its wisdom has decided that magistrate Brian Maloney is incapacitated after being diagnosed with bipolar II, an illness known to be very treatable with standard psychopharmacological treatments.
With respect, those who judge our judges and lawyers should understand that law is one of those professions very conducive to depression in its practitioners. Perhaps a good way to describe a lawyer’s job is to always assume the worst scenarios are going to happen and then protect his or her client from each of them. The best lawyers are almost always the ultimate pessimists. Too much positive thinking is dangerous in the legal game.
Life is especially tough for many small operators whose sources of work are drying out or legislated out of existence. These are often the lawyers prepared to do low-paying legal aid work for average punters. These are the lawyers who would struggle to pay their own hourly rate let alone the fees of the average private psychiatrist.
As magistrate Maloney told the NSW Parliament: “Interestingly, researchers have found that 40% of law students, 20% of barristers and 33% of solicitors have a mental illness. It is from this demographic that judicial officers are drawn. In the past 12 months three barristers have sadly taken their own lives. In recent years, two judges.”
So much of our criminal and civil justice system is carried out by the magistrates courts — simple traffic matters, drink-driving offences, family violence orders, debts and much more. A huge number of unrepresented persons, punters who can’t afford a lawyer and whose matter doesn’t come within legal aid guidelines, are seen by magistrates who generally bend over backwards to ensure no party is unfairly dealt with.
We need magistrates who have empathy and genuine life experience. That includes the experience of the large number of people suffering from mental illnesses who are disproportionately represented in our prisons, as parent-litigants in child protection cases and in so much of the business that comes before magistrates courts.
You’d think having a magistrate on the bench who is successfully managing mental illness would be an asset to the court. In short, if a magistrate is readily deemed incapacitated because of depression or bipolar disorder, the entire court system is potentially put at risk. And that’s enough to make anyone sick.
Words © 2011 Irfan Yusuf
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Monday, June 20, 2011
On Glorious Mackay ...
Check out this awesome website. And check out this amazing scene.
Some of you may find it hard to imagine how anyone could resist working in such an environment. And just thinking about it makes me wonder why the hell I left the place.
One of the fringe benefits of working in the community legal sector is that you actually get the time to walk outside your office, indeed to drive away from your office, at around 5:30pm in time to enjoy a place like this. Better still, you feel good about yourself because you've actually helped people who simply cannot afford to go anywhere else.
In October 2009, after I'd finished writing and publishing and promoting my book, I had made a conscious decision not to go back to private practice in the big smoke. Community sector law proved a little less generous on my bank balance, but the benefits as far as lifestyle have been superb. It has also allowed me to see and live in parts of Australia I never expected to visit even on holidays.
Surviving on $65,000 per year for putting your unrestricted practising certificate on the line may not sound like a terribly good return on a 6 year study and decade work investment. Still, if it means sitting down on a hilltop cafe overlooking this ...
... whilst avoiding the inevitable second divorce and/or impending nervous breakdown of many a partner of a metropolitan law firm, then surely the pay cut is worth it.
Stupid me stayed in this gorgeous place only 10 months. At the time I regarded Mackay as a cultural wasteland, a veritable Boganville. And yes, in some ways it truly was.
But one of the great things about Mackay was its proximity to Airlie Beach and the Whitsundays, where the view was often even more spectacular.
It was a truly pleasurable 10 months. Among the areas of QLD law I managed to discover were:
a. A mega-tribunal that dealt with just about every jurisdiction under the planet. And calling itself QCAT. Pretty funky name.
b. The horrors of the QLD child protection system, one where sadly indigenous kids are over represented.
c. The rather scary prospect of being slapped with a "peace and good behaviour order" if I wasn't nice to my neighbours.
d. The amazing work done by an army of underpaid community and social workers, disability advocates and legal aid lawyers (though they got paid much more than we at the community legal centre did).
This isn't the kind of law I even knew existed in the days when I was busy working ridiculous hours defending employers who refused to dismiss their workers properly and/or pay award entitlements.
Words & Photos © 2011 Irfan Yusuf
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Some of you may find it hard to imagine how anyone could resist working in such an environment. And just thinking about it makes me wonder why the hell I left the place.
One of the fringe benefits of working in the community legal sector is that you actually get the time to walk outside your office, indeed to drive away from your office, at around 5:30pm in time to enjoy a place like this. Better still, you feel good about yourself because you've actually helped people who simply cannot afford to go anywhere else.
In October 2009, after I'd finished writing and publishing and promoting my book, I had made a conscious decision not to go back to private practice in the big smoke. Community sector law proved a little less generous on my bank balance, but the benefits as far as lifestyle have been superb. It has also allowed me to see and live in parts of Australia I never expected to visit even on holidays.
Surviving on $65,000 per year for putting your unrestricted practising certificate on the line may not sound like a terribly good return on a 6 year study and decade work investment. Still, if it means sitting down on a hilltop cafe overlooking this ...
... whilst avoiding the inevitable second divorce and/or impending nervous breakdown of many a partner of a metropolitan law firm, then surely the pay cut is worth it.
Stupid me stayed in this gorgeous place only 10 months. At the time I regarded Mackay as a cultural wasteland, a veritable Boganville. And yes, in some ways it truly was.
But one of the great things about Mackay was its proximity to Airlie Beach and the Whitsundays, where the view was often even more spectacular.
It was a truly pleasurable 10 months. Among the areas of QLD law I managed to discover were:
a. A mega-tribunal that dealt with just about every jurisdiction under the planet. And calling itself QCAT. Pretty funky name.
b. The horrors of the QLD child protection system, one where sadly indigenous kids are over represented.
c. The rather scary prospect of being slapped with a "peace and good behaviour order" if I wasn't nice to my neighbours.
d. The amazing work done by an army of underpaid community and social workers, disability advocates and legal aid lawyers (though they got paid much more than we at the community legal centre did).
This isn't the kind of law I even knew existed in the days when I was busy working ridiculous hours defending employers who refused to dismiss their workers properly and/or pay award entitlements.
Words & Photos © 2011 Irfan Yusuf
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Friday, October 29, 2010
Wednesday, September 22, 2010
Notes on Property Settlements
[01] The term property in the Family Law Act 1975 (Cth) is defined very broadly. In includes assets owned individually, jointly or by a family company/trust. It also includes property once owned but recently disposed of.
[02] From 1 March 2009, de facto partners can use the Family Law Act to resolve their property disputes.
[03] Section 80 FLA sets out possible orders the Court can make on property and spousal maintenance. The Court can only make orders within the list.
[04] Property disputes involving married parties can be settled under the FLA at anytime before divorce. They can also be settled at anytime upto 12 months after a final divorce. That means the application must be filed within 12 months of the divorce.
[05] A formerly married person who failed to lodge his or her application within the 12 month post-divorce period will have to obtain permission from the Court before lodging the claim. They will have to show good reasons for not lodging earlier.
[06] De facto (including same-sex) partners must lodge their property and/or spousal maintenance application within two (2) years of the relationship ending.
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[02] From 1 March 2009, de facto partners can use the Family Law Act to resolve their property disputes.
[03] Section 80 FLA sets out possible orders the Court can make on property and spousal maintenance. The Court can only make orders within the list.
[04] Property disputes involving married parties can be settled under the FLA at anytime before divorce. They can also be settled at anytime upto 12 months after a final divorce. That means the application must be filed within 12 months of the divorce.
[05] A formerly married person who failed to lodge his or her application within the 12 month post-divorce period will have to obtain permission from the Court before lodging the claim. They will have to show good reasons for not lodging earlier.
[06] De facto (including same-sex) partners must lodge their property and/or spousal maintenance application within two (2) years of the relationship ending.
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Sunday, December 20, 2009
Profile in NSW Law Society Journal ...
Media mentions: Irfan Yusuf
Sole practitioner
Sydney Lawyers
The story: I was contacted by a 2GB researcher to talk about Haron, a self-styled Muslim cleric currently before the courts. The mainstream media didn't precisely identify the charge, but it's apparently to do with harassing letters to families of Australian soldiers, particularly ones still in Afghanistan, and widows of soldiers.
Why did the media come to you? I suspect they picked me because the host had been involved in defamation litigation against some person they usually talk to, and they'd used stuff I'd written in evidence against that usual spokesman. So they expected me to be friendly, or their way inclined. I wasn't unfriendly, but I didn't play along.
Your background: I've done stints in law offices in government and private practice. Now I do mostly workplace issues. I also write comment in the mainstream and online media, and am the author of Once Were Radicals, which is a memoir, but mostly about young kids of Muslim heritage in Australia.
Your reflections: People see my name and the word lawyer and think lawyers are trained to spin, and so they make assumptions about who and what I am. Community advocacy isn't my favourite role, and I've taken it on only because others I see were doing such a bad job, in Sydney anyway. Usually, when some moron from within the religious establishment, or deemed to be, says something stupid, those who do the talking are middle to older aged men who have very poor English skills and almost no understanding of the broader culture and community.
How did the media treat the case? The initial researcher was sensible - she wanted to find out who this fellow is, and whether he has any religious qualifications or representative credentials. I asked if she'd approached anyone else and she said I was the first person she'd rung. On air, the host asked me why no one in 'your community' stands up and condemns this guy, and why did we have to go to so much effort to find you, and does the conspiracy of silence mean he represents what 'your people' really think? 300,000 Aussie Muslims have otherwise never heard of this guy. Fringe Muslim sheiks say ridiculous things. Why give them the attention they don't get from other Muslims?
Any tips for dealing with the media? Half the issue is to know what's worth talking about, and who's worth talking to. Not every microphone or camera is worth talking to. It's like if someone bowls a ball to you in cricket, you sometimes let it go through to the keeper. If it's a one-off, and you've never heard of the journalist before, look them up and find out what they're like. It's also a good idea to build up relationships and have an experienced journalist as a sounding board, to ask how they would respond.
Published in the December 2009 edition of the Law Society Journal.
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Sole practitioner
Sydney Lawyers
The story: I was contacted by a 2GB researcher to talk about Haron, a self-styled Muslim cleric currently before the courts. The mainstream media didn't precisely identify the charge, but it's apparently to do with harassing letters to families of Australian soldiers, particularly ones still in Afghanistan, and widows of soldiers.
Why did the media come to you? I suspect they picked me because the host had been involved in defamation litigation against some person they usually talk to, and they'd used stuff I'd written in evidence against that usual spokesman. So they expected me to be friendly, or their way inclined. I wasn't unfriendly, but I didn't play along.
Your background: I've done stints in law offices in government and private practice. Now I do mostly workplace issues. I also write comment in the mainstream and online media, and am the author of Once Were Radicals, which is a memoir, but mostly about young kids of Muslim heritage in Australia.
Your reflections: People see my name and the word lawyer and think lawyers are trained to spin, and so they make assumptions about who and what I am. Community advocacy isn't my favourite role, and I've taken it on only because others I see were doing such a bad job, in Sydney anyway. Usually, when some moron from within the religious establishment, or deemed to be, says something stupid, those who do the talking are middle to older aged men who have very poor English skills and almost no understanding of the broader culture and community.
How did the media treat the case? The initial researcher was sensible - she wanted to find out who this fellow is, and whether he has any religious qualifications or representative credentials. I asked if she'd approached anyone else and she said I was the first person she'd rung. On air, the host asked me why no one in 'your community' stands up and condemns this guy, and why did we have to go to so much effort to find you, and does the conspiracy of silence mean he represents what 'your people' really think? 300,000 Aussie Muslims have otherwise never heard of this guy. Fringe Muslim sheiks say ridiculous things. Why give them the attention they don't get from other Muslims?
Any tips for dealing with the media? Half the issue is to know what's worth talking about, and who's worth talking to. Not every microphone or camera is worth talking to. It's like if someone bowls a ball to you in cricket, you sometimes let it go through to the keeper. If it's a one-off, and you've never heard of the journalist before, look them up and find out what they're like. It's also a good idea to build up relationships and have an experienced journalist as a sounding board, to ask how they would respond.
Published in the December 2009 edition of the Law Society Journal.
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Saturday, March 21, 2009
BLOG: Some good reasons for lawyers to be proud of what they do ...
If you want confirmation from Pakistan about why lawyers aren't just about sucking blood and marrow out of the economy, click here.
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Sunday, March 08, 2009
WORKPLACE: Parental leave ...
There's an interesting letter concerning maternity leave in the Fin Review on Wednesday 4 March 2009 from a director of a Victorian company. The first paragarph really says it all ...
Will simplifying and streamlining the system really protect women? Is the current uncertainty providing more certainty for women's employment.
Words © 2009 Irfan Yusuf
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No small business employer will say so openly, but any attempt to extend maternity leave, requiring employers to keep jobs open for additional costs, will inevitably result in strengthening the preference for older women and confine more of those of childbearing age to casual roles.Could increased regulation designed to protect women's job security have the opposite affect? As it is, we have multiple layers of state and federal anti-discrimination and workplace legislation that seem to protect women from discrimination on the basis of sex, discrimination on the basis of being a carer and termination due to proscribed reasons (such as discriminatory conduct). Exactly how this affects women's rights to flexible working arrangements after pregnancy and the birth of a child is difficult to say. Different tribunals apply legislative guidelines in conflicting ways with different results.
Will simplifying and streamlining the system really protect women? Is the current uncertainty providing more certainty for women's employment.
Words © 2009 Irfan Yusuf
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WORKPLACE: An update ...
It's a pain in the backside trying to keep up with the latest changes in Workplace Relations. The Rudd Government has introduced a new Workplace Bill, but it's currently before the Senate and no one quite knows where it will go from there. The Senate numbers are tight, and lobbyists are having a field day trying to puish through their proposed amendments that suit their clients and stakeholders.
So for what it's worth, here's an update:
[01] Some employees will be worse off under the Commonwealth's proposed changes to the federal award system. These employees will be able to apply for top-up payments. Employers aren't happy with this as they claim it will unnecessarily complicate the system.
[02] Fair Work Australia, the new mega-regulator, will enforce the top-up system. Transitional legislation will be introduced into Parliament in around a week's time. Don't expect an English language version to be introduced anytime soon. Transitional legislation is often easier to read when written in Chinese. At least that's what Kevin Rudd would probably say. And anyone who has tried to read and make sense of transitional legislation will probably agree with him.
[03] Employers are rather peeved they aren't getting their own top-up should they suffer increased costs from the system.
[04] The proposed new federal award system being worked through by the Australian Industrial Relations Commission (AIRC) will "modernise" around 4,000 state and federal awards, and could affect some 6 million workers. Hopefully these workers will still have jobs by the end of the process.
[05] According to the Fin Review story "Employers cry foul over cost of awards shake-up" dated Wednesday 4 March 09 (from which this update is largely taken), some awards have been released thus far, and some industries (pharmacy, retail and restaurant) are peeved they have to bear increased costs.
[06] There's some fear of demarcation disputes (as in turf wars between unions covering the same set of workers) which could increase as the Rudd government will allow state unions to register under the federal system.
I'll continue with these updates if for no other reason than that it forces me to keep updated!
Words © 2009 Irfan Yusuf
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So for what it's worth, here's an update:
[01] Some employees will be worse off under the Commonwealth's proposed changes to the federal award system. These employees will be able to apply for top-up payments. Employers aren't happy with this as they claim it will unnecessarily complicate the system.
[02] Fair Work Australia, the new mega-regulator, will enforce the top-up system. Transitional legislation will be introduced into Parliament in around a week's time. Don't expect an English language version to be introduced anytime soon. Transitional legislation is often easier to read when written in Chinese. At least that's what Kevin Rudd would probably say. And anyone who has tried to read and make sense of transitional legislation will probably agree with him.
[03] Employers are rather peeved they aren't getting their own top-up should they suffer increased costs from the system.
[04] The proposed new federal award system being worked through by the Australian Industrial Relations Commission (AIRC) will "modernise" around 4,000 state and federal awards, and could affect some 6 million workers. Hopefully these workers will still have jobs by the end of the process.
[05] According to the Fin Review story "Employers cry foul over cost of awards shake-up" dated Wednesday 4 March 09 (from which this update is largely taken), some awards have been released thus far, and some industries (pharmacy, retail and restaurant) are peeved they have to bear increased costs.
[06] There's some fear of demarcation disputes (as in turf wars between unions covering the same set of workers) which could increase as the Rudd government will allow state unions to register under the federal system.
I'll continue with these updates if for no other reason than that it forces me to keep updated!
Words © 2009 Irfan Yusuf
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Wednesday, December 03, 2008
Discovering America?
Well, not quite.
Some years ago, I printed out a paper entitled Death By Discovery written by a Sydney barriater named Philippe D Gray-Grzeszkiewicz. The paper was designed to be an introduction to the mysteries of that proceral aspect of so much litigation called discovery.
The author specifically mentions poor junior solicitors and paralegals in his introduction. He must have come across a fair few in his day, and he obviously knows ...
The author provides 2 very interesting definistions of discovery. The first is from Martin Vernon's Bluff your way in Law and focusses more on discovery by the client than his or her legal adviser ...
Words © 2008 Irfan Yusuf
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Some years ago, I printed out a paper entitled Death By Discovery written by a Sydney barriater named Philippe D Gray-Grzeszkiewicz. The paper was designed to be an introduction to the mysteries of that proceral aspect of so much litigation called discovery.
The author specifically mentions poor junior solicitors and paralegals in his introduction. He must have come across a fair few in his day, and he obviously knows ...
... the concerns of newly admitted solicitors and paralegals who have lacked an authoritative but relatively accessible introductory paper that deals with the mechanics of a task that is often delegated to them without much instruction or supervision.Basically discovery is where parties (or their legal advisors) disclose to each other all documents relating to the dispute hat are in their possession or are within reach. I rarely received much help from my supervisors about this topic. Perhaps that's because my superbisors were way too sensible than to practise (and therefore allow me to practise) in jurisdictions where such procedures were needed.
The author provides 2 very interesting definistions of discovery. The first is from Martin Vernon's Bluff your way in Law and focusses more on discovery by the client than his or her legal adviser ...
Discovery - Process of detailing in a huge chronological list the ten cardboard boxes of random but crucial paperwork discoveredrvals by your client at unpredictable intervals {after he first told you that he has given you everything of relevance).The second is a somewhat more scientific definition by Albert Szent-Gyorgi and published in American Biochemist ...
Discover consists of seeing what everybody has seen and thinking what nobody has thought.Thankfully I'm not terribly interested in either form of discovery.
Words © 2008 Irfan Yusuf
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Monday, November 17, 2008
EVIDENCE: Experts in civil litigation ...
I've had to return to law school and find out again how expert evidence works. Actually, I already know how it works, but I need to figure out the best manner in which to express this knowledge. Later in the week, I have to deliver a paper on the use of imams as expert witnesses in civil law cases. My main interest is in the area of workplace matters where employers are required to make reasonable provision for their employees' religious requirements. In such cases, you would thinke most imams would be the most logical choice of expert witnesses for either party or indeed the court or tribunal.
My audience will largely consist of non-lawyers. I guess this means I will have to explain the idea of evidence and why we have rules for determining what kinds of evidence a court will allow. In an increasing number of civil jurisdictions, the rules of evidence are applied in a more lax manner.
My starting point has been the following 2 documents:
1. J Burke, Osborn’s Concise Law Dictionary, Sixth Edition (1976) Sweet & Maxwell, London (Burke). I bought this copy in 1994 during a trip to Karachi after having completed my first six months working in a private legal practice. It cost 150 rupees, which in those days approximated to around A$7.
2. DM Walker, The Oxford Companion to Law (1980) Clarendon Press, Oxford (Walker). From memory, this was purchased at the Lifeline Book Fair in Canberra last year.
Some lawyers may be wondering why I'm not using a more specialised text such as Cross on Evidence. The main reason is that I don't have the time to translate esoteric legal textbooks into the kind of English non-lawyers (albeit academics and postgraduate students in Islamic studies) can understand.
The more interesting aspect of this topic is how the rules of qualifying witnesses as experts could apply in the case of imams, a profession who (at least in Australia) have no consistent method of accreditation.
Anyway, here are some threshhold points relating to evidence in general and expert evidence in particular ...
[01] Here is Burke's definition of evidence:
[02] Burke includes in his definiton an wide variety of categories, including oral evidence given under oath.
[03] Here is Walker's definition of evidence:
[04] So why have rules of evidence? And what is their effect? Walker writes:
[05] Next comes the issue of how an expert is defined. Burke defines an expert witness as follows:
[06] In some senses, an imam in Australia may be regarded as a foreign lawyer in that he is an expert in a legal system foreign to Australia. Many imams play the role of jurists in that they are consulted for advice on matters pertaining to sharia (Islamic sacred law) and how it might be implemented within an Australian context. Typical areas where this might occur are family law and estate matters. Quite a few Muslims are going to imams with a view to obtaining advice on how their wills are to be drafted. At least one Sydney imam (who is also a qualified solicitor) is marketing sharia-compliant wills.
[07] In what sense is an imam an expert? What special skill, technical knowledge and/or professional qualifications do imams have? And how can we determine whether an imam actually has such qualifications? Is there am agreed upon method for qualifying imams?
[08] Further, are imams necessarily qualified to give expert evidence on all areas of sharia? Does Islamic sacred law have peculiar and discrete areas of specialisation.
[09] Some years back, I read a primer on the Islamic law of estates. The primer was written by a group of South African imams, some of whom were also practising lawyers. One thing I remember from the book was that the law of estates was regarded as one of the most complex and difficult areas of sharia. If this is the case even for sharia lawyers, how much more will this be for Australian lawyers with little sharia expertise? And how much more for judges who must decide on matters involving sharia-compliant wills where the deceased's intentions much be determined with reference to intricate rules possibly external to the testamentary document itself?
[10] Walker defines expert evidence as follows:
More soon.
Words © 2008 Irfan Yusuf
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My audience will largely consist of non-lawyers. I guess this means I will have to explain the idea of evidence and why we have rules for determining what kinds of evidence a court will allow. In an increasing number of civil jurisdictions, the rules of evidence are applied in a more lax manner.
My starting point has been the following 2 documents:
1. J Burke, Osborn’s Concise Law Dictionary, Sixth Edition (1976) Sweet & Maxwell, London (Burke). I bought this copy in 1994 during a trip to Karachi after having completed my first six months working in a private legal practice. It cost 150 rupees, which in those days approximated to around A$7.
2. DM Walker, The Oxford Companion to Law (1980) Clarendon Press, Oxford (Walker). From memory, this was purchased at the Lifeline Book Fair in Canberra last year.
Some lawyers may be wondering why I'm not using a more specialised text such as Cross on Evidence. The main reason is that I don't have the time to translate esoteric legal textbooks into the kind of English non-lawyers (albeit academics and postgraduate students in Islamic studies) can understand.
The more interesting aspect of this topic is how the rules of qualifying witnesses as experts could apply in the case of imams, a profession who (at least in Australia) have no consistent method of accreditation.
Anyway, here are some threshhold points relating to evidence in general and expert evidence in particular ...
[01] Here is Burke's definition of evidence:
All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the proof of which is submitted to judicial investigation ...
[02] Burke includes in his definiton an wide variety of categories, including oral evidence given under oath.
[03] Here is Walker's definition of evidence:
Facts, inferences from facts, and statements which tend to convince a court or other inquiring body that certain facts, the state of which is unknown but being inquired into, are to a certain effect ...
[04] So why have rules of evidence? And what is their effect? Walker writes:
[T]he rules of evidence ... frequently restrict the kinds of evidence which may be adduced. The development of the law of evidence is ... on the whole a movement from reliance on non-rational grounds for decision to rational grounds.
[05] Next comes the issue of how an expert is defined. Burke defines an expert witness as follows:
A person with special skill, technical knowledge or professional qualification whose opinion on any manner within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant e.g. doctors and surgeons, handwriting experts, foreign lawyers. It is for the court to decide whether a witness is so qualified as to be considered an expert ...
[06] In some senses, an imam in Australia may be regarded as a foreign lawyer in that he is an expert in a legal system foreign to Australia. Many imams play the role of jurists in that they are consulted for advice on matters pertaining to sharia (Islamic sacred law) and how it might be implemented within an Australian context. Typical areas where this might occur are family law and estate matters. Quite a few Muslims are going to imams with a view to obtaining advice on how their wills are to be drafted. At least one Sydney imam (who is also a qualified solicitor) is marketing sharia-compliant wills.
[07] In what sense is an imam an expert? What special skill, technical knowledge and/or professional qualifications do imams have? And how can we determine whether an imam actually has such qualifications? Is there am agreed upon method for qualifying imams?
[08] Further, are imams necessarily qualified to give expert evidence on all areas of sharia? Does Islamic sacred law have peculiar and discrete areas of specialisation.
[09] Some years back, I read a primer on the Islamic law of estates. The primer was written by a group of South African imams, some of whom were also practising lawyers. One thing I remember from the book was that the law of estates was regarded as one of the most complex and difficult areas of sharia. If this is the case even for sharia lawyers, how much more will this be for Australian lawyers with little sharia expertise? And how much more for judges who must decide on matters involving sharia-compliant wills where the deceased's intentions much be determined with reference to intricate rules possibly external to the testamentary document itself?
[10] Walker defines expert evidence as follows:
Evidence given to a court by a person skilled and experienced in some professional or technical sphere of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements or similar means.
More soon.
Words © 2008 Irfan Yusuf
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