Monday, 27 May 2013

Why the Australian Family Law System is Broken

Perhaps a little bit extreme, however I do think that there are a number of gaping holes in our Family Law system, sufficient to swallow planets.

Ok, to start with, Family Law is complex. Incredibly complex. There is NEVER an identical case, and although the outcomes can be fairly predictable, other times they can come right out of left field.

This leads to a requirement that a person is represented. Legally, you can represent yourself, but the Courts dislike it, because if matters proceed to trial, you end up with ex-partners cross examining each other. You can just imagine how that would work, especially where there have been allegations of serious abuse.

As a result, the Court prefers (and encourages) litigants to be represented.

As a family lawyer, I spend hours upon hours drafting documents and affidavits. Trying to put together an affidavit in support of a Relocation Application is involving digging through two years of affidavits, picking out events relevant to domestic violence, abuse, harassment, mental health, the relationship between the parties and the children etc.

This makes the system expensive. If I wasn't acting for my client on the basis of a grant of legal aid, I would have just racked up about $600, just for typing a complex affidavit. (Cost according to Supreme Court Scale is currently $29.32 per 1/4 page, times 8 pages..., plus GST...)

It also makes the system slow. Drafting those affidavits takes me time, but worse, it takes the Court time to read it! (It's why drafting concise documents is a skill worth learning).

Thursday, 23 May 2013

Free Legal Advice for Idiots

We just received a phone call from someone who was filling out a Legal Aid form. They wanted to know what a 'Financially Associated Person' was.

Looking past the fact that the second page of the application form describes exactly what a 'financially associated person' is, this client can be commended for asking for help, rather than leaving it blank.

But what he has just done is called a lawyer to help her fill in a form. If he was paying privately, that could have cost him up to $50.00, just for a quick question that he could have worked out by reading the form!

Is this what is wrong with the justice system?

Wednesday, 22 May 2013

Work for the Dole and the impact on industry

As a solicitor doing a lot of Legal Aid work, most of my clients are in receipt of Centrelink. Many of them are on parenting payments, but many of them are in receipt of NewStart, or the Disability Support Pension.

For those people on Newstart payments, I acknowledge that there are many barriers to employment, including lack of skills. In Australia, we have a safety net which enables people in that situation to survive, even if that 'survival' is merely subsisting on the bottom level of society.

One of the roles of Government is to attempt to re-engage these people in society by sourcing remunerative employment for them. There are lots of private- and public sector organisations which assist people to obtain employment, but many of them are simply not capable of obtaining a job due to complete lack of skills.

There is a program available through the Department of Education, Employment and Workplace Relations called 'Work for the Dole'. This is a voluntary program, and the stated intention is to "provide you with opportunities to build skills and gain experience through activities which benefit local communities across Australia." If you are local to Adelaide, you will remember the bone-jarring trips up King William Street south of the parklands, which was paved with bricks during a Work for the Dole program. I cant help thinking it could have been done with a lot less labour if it was sealed normally, but I guess when you are employing people for free, you don't need to worry about paying for man-hours!

The website states that "Work for the Dole activities are available with not-for-profit organisations, or with local, state, territory or Australian Government agencies."

I wonder if these programs could be expanded to allow more people to enter the work-force and engage in skill-building activities.

The Federal and State governments spend billions of dollars each year on construction projects across the country. Much of it is outsourced to private companies, who bid for the contract to perform the work. Those companies employ highly skilled labourers (or less-skilled labourers) to do the work, and this area of industry accounts for a significant portion of the total industry.

But what if our governments, instead of paying private companies to source the labour, sourced the labour itself?

You have a massive pool of unemployed people with no real work skills. The government is already paying them $400/fortnight, just to sit around and 'look for work.' For a small increase (say 50%), you could have them gainfully employed, which saves the cost of paying other workers.

I would propose a graded scale of increases to welfare payments based on continuing training, and hours worked. So a person could walk off the street and into 'basic training', where they would learn the basic skills needed to mix concrete, lay bricks, or shovel manure.

As their experience increased, they could be offered increasing training to be able to perform more complex tasks, until they are, in effect, a skilled labourer.

As that person up-skills, their welfare benefits could increase also, BUT not so much as to compete with private companies. Once that person has reached a certain training level, they will be an attractive worker for private businesses, but not being paid as much. A private business could then hire them directly, simply by offering a higher (IE award) wage.

The money for the training could be saved by not needing to pay contractors to do the work at market rates.

One down-side to this is that this work-force detracts from a similar private industry. It could be seen to compete with private businesses, especially for other government contracts.

I do, however, see a radical expansion of these programs in the not-for-profit sector (including government sector).

Wednesday, 15 May 2013

Government cuts baby bonus... FINALLY!

[DISCLAIMER: I fully support people who want children having children. I know people, both in relationships and single, whose biggest delight is their child or children. I know people who have considered the issue, and made a decision, and been blessed with a squalling, pooping, bundle of love. What I DON'T support is people having children because of the baby bonus.]

When Howard first introduced the 'Baby Bonus', I was shocked. Imagine, paying people to have children! Too many people don't need any encouragement to do that!

I thought that the policy was horrifically irresponsible. For one thing, I don't believe in a 'Bigger Australia.' Sure, the economy has to grow, but it doesn't have to grow by being fueled by population booms! This nation, this planet, doesn't need higher populations!

Children having Children:
Secondly, I thought that it was irresponsible because of the target audience. $2,000 (later raised to $3,000, then $4,000, then indexed to inflation, as of January 2012, $5,437.) is a very attractive sum, especially when paid as a lump sum. For a person who has been working for five years, $5,000 doesn't seem like a huge amount, but for a person who has never worked, or is just coming into the workforce, that is a massive amount.

I am talking, of course, about children and young people. For 16- and 17-year-olds who have just left school, what could be easier than having a child to earn $5,000? You even get to have sex to make it happen! (What does sex for money remind me of???)

Even after the payment was divided into fortnightly sums, I still felt that it was an irresponsible policy, promoting young people to have children by the promise of easy, quick cash. First time parents, especially, would have no idea of the true costs of raising a child. What happens when the baby bonus runs out?

To add to that, once the baby-bonus was finished, those young people would most likely then be eligible for Parenting Payments through Centrelink. So instead of having people finishing school and looking for further education or work, you have a generation of young people who have had the opportunity to skip working, and go straight onto the welfare system via a policy promoted by the government. And once the bonus runs out, why stop at one?

Even once their children are old enough for child-care, it will seem daunting to enter the work force heavily enough to make child-care affordable. Also, that person now has the everlasting responsibility of having a child to care for. Their opportunities are always going to be so much more limited. Entire blogs have been dedicated to the difficulties faced by mothers re-entering the work-force. Add to that a complete lack of employment skills, and you have a recipe for frustration.

Tuesday, 14 May 2013

Should my client apply for Bail?

It's been a while since I have made a post about a strictly 'legal' topic. Most of what I do here is complaining about the Legal Services Commission (hand that feeds?) or snarking about politics. I guess it's time to get back on topic.

Ok, so Bail. Anyone who has ever worked in Criminal Law has had to apply for or defend an application for Bail. The usual course of events is this:
  • Applicant applies to Sergeant at Police Station where arrested for bail. If refused...
  • Applicant makes application for Magistrates Court. Must be heard quickly. If refused...
  • Applicant can make application for review in the Supreme Court.
I have yet to do a Supreme Court bail application, because the last time it came up, by the time funding was approved, there was a material change of circumstances, and our client was released on a fresh bail application in the Magistrates Court. 

The Bail Act 1985 governs the granting of bail in South Australia. Section 10 stipulates the most critical piece of the law, in my opinion: the resumption of bail. It means that the default position is that a person will be granted bail. It is similar in effect to the presumption of innocence. 

There are provisions under s10A for when bail should not be granted except in exceptional circumstances. The most common of these is where the person has been arrested for breaching terms of an Intervention Order, and young lawyers should be very careful about making applications in these cases, without reading the legislation thoroughly. Even if the allegation is not that they breached the IO by threatening the victim's physical safety, if the condition that they breach is imposed for the victim's physical safety, then they are a prescribed applicant. 

If s10A applies, bail will not be granted unless you can demonstrate 'special circumstances.'

I have dealt with a matter where a client was charged with a large number of offences, many of them committed whilst on bail for similar offending. The offences, if proven, were certain to attract a penalty of imprisonment (drive disqualified), and that sentence is likely to exceed a year. 

Whilst there was a distant chance that he could be released on Home Detention, as soon as he entered pleas, he would be sent straight back to Port Augusta for a lengthy stay. I therefore advised him NOT to apply for bail, and enter pleas immediately. (He acknowledged all elements of all charges.)

Under the new Criminal Law Sentencing legislation, entering a plea on the first possible occasion entitles you to a sentencing discount of up to 40%. This means that for a 10 month term of imprisonment, you could be sentenced only to 6 months. You could then be eligible for release on Home Detention after three months. 

Also, whilst my client is in detention, he won't be able to commit any more offences. 

Monday, 13 May 2013

Dan Brown? Love him or hate him, you have to be jealous of him!

One of my Facebook friends linked me to a post on Dan Brown, which can be found here, titled "Don't make fun of renowned Dan Brown."

The article is hilarious, and worth reading, if you can deal with far too many literary puns (or punes.)


My favorite would be either:...
Dan Brown, whose blonde locks and receding
hair line made him look rather Putin-esque.
"The critics said his writing was clumsy, ungrammatical, repetitive and repetitive. They said it was full of unnecessary tautology. They said his prose was swamped in a sea of mixed metaphors. For some reason they found something funny in sentences such as “His eyes went white, like a shark about to attack.” They even say my books are packed with banal and superfluous description, thought the 5ft 9in man. He particularly hated it when they said his imagery was nonsensical. It made his insect eyes flash like a rocket."
Or:...
Renowned author Dan Brown gazed admiringly at the pulchritudinous brunette’s blonde tresses, flowing from her head like a stream but made from hair instead of water and without any fish in. 
When Dan Brown's books first hit the world stage, I admit that I was a solid band-wagoneer. I didn't read any of them until the 4th book was out, and I can't make that hipster comment 'I read it before it was cool.' If it ever was cool...

Blog drops annonymity

Fine. I give in. I am going to put my name to this blog.

Well, not really. I am going to keep publishing under 'Miscellaneous Lawyer.' BUT, I will start admitting to people that this is my blog, and that yes, I actually do think that.

Sorry!


Why Lawyers Should Run the World: Part 2 (Why Lawyers do it better)

I am always struck by the fact that in Court, barristers, who are representing people whose interests are diametrically opposed, are always civil and polite to each other, and at the end of the day, leave the Court room and drink at the same bar as their opponent. They refer to their opponent as 'My friend,' except when they think they are saying something stupid, in which case they say 'My learned friend.'

I propose that a system should be devised where the political arena works the same way as a Court. Politics are presented to the public by people who are paid to present the facts, arguments, and suggestions, who are also bound by the duties towards disclosure, the Court, the clients (political parties), and the interests of Justice.

As an example, a party can use a study to demonstrate that their policy is the best one. They refer to Study A, Study B, and Study C. However, the opposition refers to Studies D, E and F, and say that they contradict the policy.

In the legal system, when presenting a case, you are bound (in the civil system at least) to disclose ALL the evidence, not just what supports your case. So, in the above example, the party must disclose studies A, B, and C, but also Studies D, E and F. They should also disclose Studies G, H, and I, which suggest that ABC, DEF are biased, and don't prove anything, because they were funded by XYZ, who support QRT.

This allows a listener/arbitrator/Court/voter to make a decision based on all the evidence, not just the hyped up Study that may (or may not) support the policy.

Worth reading:
http://www.news.com.au/technology/twitterati-dismiss-oppositions-nbn-policy-with-witty-memes/story-e6frfro0-1226617308069

http://www.independentaustralia.net/2013/politics/tony-abbotts-shaky-campaign/

Worth laughing at:
http://austeaparty.com.au/web/gillard-resurrects-death-duties-by-stealth-with-new-tax/


Higher Density or Urban Sprawl?

Where do you want to live?

Most people will answer this question by naming suburbs, or life-styles. "I want to live in Norwood" or "I want to live by the beach," or "I want a 1/4 acre block." Live the Australian dream!

The problem is that to fuel this Australian obsession with the 1/4 acre block, the city of Adelaide has to keep expanding. Urban sprawl happens because everyone wants their own little patch, and fair enough. If you can afford it, why shouldn't you have your own place?

There seems to be a resistance to living in high-rise apartments, or even in medium-density housing. Or is there? Given how much high-rise is worth near Adelaide, I think that it would be more popular than people think. I would leap at the chance to live closer to the city, and I don't have any particular objection to living in a nice apartment in town.

In an article "Urban sprawl is killing us, but there's another way" The Age writer Frank Reale proffers an unusual solution. My default quick-fix to urban sprawl is higher-density housing along sustainable infrastructure corridors. Reale suggests a focus on 'Smaller planned cities.' He notes that a lot of the energy released by burning coal or gas is actually lost as heat, and suggests that small cities built around power plants might be able to dramatically improve the efficiency of that process.

I don't agree. Firstly, where are we going to get the land to do that? Most of the areas within an easy drive from Adelaide are already populated, or else dedicated to other essential industry and agriculture. Next, most of the power plants are located a long way away from cities... deliberately. People don't want to live next to a coal station.

Finally, the most efficient use of space is vertical. Why not simply dedicate areas for construction of high-rise office space, above which is residential space? It is much cheaper to build the infrastructure for one massive building, than for 1000 smaller ones.

Thursday, 9 May 2013

Why Lawyers Should Run the World: Part 1 (Why our current system sucks)

TL;DR version: I think we should replace Politicians with lawyers (or other professional advocates) who can present arguments in an un-biased manner, based on their merit, not their origin.

This is based on the following points:
  1. I am a lawyer, and should run the world.
  2. Barristers represent people who are opposed to each other, yet always maintain civility and respect for each other, both in the Court room and in public.
  3. Barristers make reasoned arguments, based on instructions, to the Court, and their arguments are supported (hopefully) by facts. 
  4. Part of a lawyer's job is to advise the client when their argument has no merit, or won't succeed.
  5. At the end of the day, the barrister's job is finished at the end of the case, and they are not invested in the outcome. Their only concern is that they have done due diligence, and that their reputation is not harmed. Therefore, they will do the best job they can, but won't pursue an argument beyond its merits. 
  6. Barristers do not make the final decisions; they present the facts, make the arguments, and accept the outcome (subject to rights of appeal).
  7. I think parts of this system might be of benefit to politics in general. 
It won't surprise any of you that I am sick of politicians whinging about the other party's lack of economic credentials, or moaning about how bad the other side's latest policy is. Tony Abbott's attacks on the Gillard government are fast reaching the absurd, including his failed "How many illegal boats have arrived since Labor took over?" campaign.

This was all the more amusing after the sign was vandalised within hours, and quickly replaced with a 'generic' coalition sign.

Please don't interpret this post as another Abbott bashing exercise. I can't stand the budgie-smugglerd lunatic, but I am not a massive fan of Gillard either.



I think much of Labor's economic policy has been hasty, poorly researched, poorly planned, and VERY political. About the only good thing you can say is 'At least Rudd acted fast when he needed to.'

I won't get into the debate about Rudd Money, but the short of it is that I think the policy was poorly implemented, but at the time, it was an imperative that some policy was implemented, and it seems to have worked.

I also won't get into the argument that 'Any policy is better than no policy'. I am sick of Abbott's evasions about exactly what he plans to do, asides from "Scrap the carbon tax!"

In short, I am sick of politics. So what is this all about? Do I have a better way? Maybe. Is it crazy? Certainly.