Extradition and a Fear of HIV...

There are many people out there in this big bad world of ours who fear being exposed to HIV and developing AIDS. This fear seems to be further intensified where a person is under threat of a prison term in a nation where HIV / AIDS is prevalent, or rampant, in the prison system where they would serve a sentence if convicted.

Adrian Kiki Ariawan, a convicted Indonesian felon, currently detained in Australia is fighting his pending extradition to Indonesia based on an argument that sending him back to a prison system where he may contract HIV is a breach of his human rights and a breach of prevailing international humanitarian law.

At this point, you might be shaking your head and saying, "what?" But, this is not as far-fetched as it sounds. And, more importantly the approach has been successfully argued in the Australian Federal Court in 2004. In de Bruyn vs. The Minister for Justice and Customs (FCAFC 2004), the Federal Court allowed the appeal of the lower court decision that granted the extradition.

The Federal Court also quashed the arrest warrant with the reasoning that the Minister had not given sufficient consideration to the humanitarian grounds associated with extraditing someone to a penal system where there is a risk of contracting HIV.

de Bruyn was fighting extradition to South Africa. The support for the petition included a number of articles that noted increased risks of HIV infection, particularly post-incarceration.

With respect to the risk, it would be interesting to see whether the Australian courts would consider a response from Indonesian authorities in the form of a guarantee that Ariawan would be jailed in isolation or only with other inmates of negative HIV status. This would presumably reduce and perhaps eliminate any risk of Ariawan contracting HIV while serving his sentence.

I am sure that serving the rest of your life in solitary confinement is most probably a breach of one's human rights, but if the fear is of contracting some disease whilst in prison then being separated from all other prisoners would seemingly resolve that fear, and it would be the choice of the convict themselves.

It must be noted that Australian prisons are not HIV-free nor are they violence-free, sexual or otherwise, although medical treatment is considerably better than what is available in the Indonesian penal system. It also needs to be noted that all prisoners in New South Wales are tested on entry into the system, usually three months after entry into the system and on release back into the community. As I remember it, tests can also be conducted at other times if thought warranted or if requested by the relevant authorities or the prisoners themselves.

I am going to have to do a little more reading on this subject, as I find it really interesting. It has not much to do with my life now that I have moved from lawyering work into teaching, but the legal stuff still remains a fascination (some might say an obsession) for me.

Ariawan has been sentenced to a life term for his role in the embezzling of Bank Liquidity funds offered to Bank Surya.

High Court and Federal Judicial Officers Get A Pay Rise...

The Remuneration Tribunal has awarded a 3 per cent pay rise to High Court and Federal Court judicial officers. However, it is expected that more rises might be on the way.

The salaries for judges are pretty good, but with increasing workloads and demands a 3 per cent pay rise might not be enough, particularly if the government is trying to attract high calibre people to the bench. For many judges coming out of private or public practice of the law quiet often means a considerable salary sacrifice, making the move a labour of love as much as anything else.

So, the 3 per cent rise takes the base salary of the Chief Justice of the High Court to a respectable AUD 446,580 annually. The Chief Justices of the Federal and Family Courts see their base salaries rise to AUD 378,170 annually.

This pay rise should also see the salaries of Supreme Court judges rise in each of the states. Supreme Court judges earn a salary pegged at 85 per cent of that earned by a High Court justice.

I do not have a problem with judges getting a pay rise as most of them more than earn it.

Stupid is as Stupid Does 3

It goes without saying that stupidity can happen anywhere and this is a case in point.

Marcus Einfeld (photo courtesy of Sahlan Hayes / SMH) in an attempt to lie his way out of an AUD 77 speeding ticket has exposed himself to up to 24 years in prison for trying to perjury and making a false declaration. He will not get that much time in prison but nevertheless he should probably do some prison time.

The culmination of three years worth of to and fro came down to two guilty pleas in the New South Wales Supreme Court.

What makes this case all the more interesting is that Einfeld is a former Federal Court judge of some 15 years standing and also a former Chairman of the Human Rights and Equal Opportunity Commission. To suggest that he should of known better is probably an extreme understatement.

Originally, Einfeld had been indicted on 14 separate offences of which all but the two he pleaded guilty to were either tossed in a legal sense (based on technicalities) or withdrawn.

For a man who at 70 years of age and a distinguished career in the law the idea of lying one's way out of a 77 dollar fine is either the height of arrogance or stupidity or perhaps both. Nevertheless, this foolishness should ensure that rather than enjoying his retirement with family and friends he will have the opportunity to make some new friends in prison.

Stupid!

Transgender and Sex Discrimination

It is always interesting to see how judges interpret laws and whether these interpretations expand the intent of the original law or restrict it.

There are always critics who voice their concerns when it appears that judges are making law rather than interpreting it.

A recent case involving a transgendered woman, who was a highly decorated soldier as a man, and the Library of Congress in the US. Diane Schroer was offered a position at the Library of Congress as terrorism research analyst when she was a man. This job offer was then revoked when the Library of Congress found out that David Schroer was in a period of transition from being a man and becoming a woman.

Schroer was qualified for the position, of that there seems little dispute, and had in fact been the highest rated candidate for the position. Her experience included being a special forces commander in the US Army and commanding a 120 person unit tasked with tracking terrorists.

She retired in 2004 and ultimately ended up applying for the position at the Library of Congress.

The American Civil Liberties Union took up the case and filed it in Federal Court. The suit alleged discrimination and relied upon the Civil Rights Act and in particular the provisions on sex discrimination.

The ruling of the judge pointed to direct evidence that the Library of Congress had based their hiring decision on sex stereotypes. The stereotypes here were that the Library of Congress felt that Schroer would be less capable of performing her duties as a woman than she would have if she had stayed a man. Although the testimony given in court was that the Library was worried that they would not be able to get a security clearance for Schroer in time.

The judge then went on to compare a situation where a person is denied employment because they are in the transitioning period from one religion to another.

Yet, and perhaps more importantly, this decision says that the laws as they relate to sex discrimination covers individuals who are transgendered and it also covers them during the period of transition.

I do not think that the decision expands the intent but rather clarifies that intent. It would be a difficult argument to sustain that the government's intent was to exclude people from the protections of the sex discrimination clauses in the Act.

Now that the judge has ruled in Schroer's favor the only question that remains is how should she be compensated for the discrimination that she has suffered.

When the damages award is made (assuming one will be made) I will post a postscript to this story.

Obesity and Lethal Injections

There is a simple question being posed by a death row inmate in a federal lawsuit that has been lodged in Ohio and that question is, "can you be too fat to be put to death by lethal injection?" By now most of my regular readers know that I am anti-death penalty and have stated my reasons for such opposition elsewhere on my blog.

The inmate, Richard Cooey, argues that because of his obesity the executioners would not be able to find suitable veins for the needle and that the drugs would have diminished effect because of his weight. The diminished effect of the drugs would seem to be the primary argument because this would conceivably render the execution cruel and unusual. A person has a lot of veins, so if one was not readily available in the inmates arms, then the executioners move to his hands, legs, and feet in search of a suitable vein. My guess is that they would find one even in a fat person. Cooey is 5'7" tall and weighs a hefty 267 pounds.

The debate about whether Cooey should die for his crime, the rape and murder of two University of Akron students back in 1986, is not the point of this post. What is the point is whether the execution of fat people by lethal injection constitutes a breach of fat people's rights to be executed in a humane way. How stupid does that sound? Is there any humane way to be executed? And should we distinguish between humane ways of execution for fat people and people whose weight falls within a recognized standard.

Although, the obesity arguments are not the only arguments being run by the Public Defender assisting Cooey. It is also alleged that the migraine medication Cooey is taking will effect the lethal injection process as Topamax, the drug Cooey is taking, is likely to block Thiopental which is the drug that knocks you out before the lethal drugs are injected.

This, according to an expert, is likely to increase the risk that Cooey is not properly anesthetized and therefore he would be getting the full enjoyment of the lethal drugs that will kill him as they are pumped into his body. I figure that perhaps the surviving members of his victims' families might not be too concerned with the idea that Cooey suffers a little excruciating pain. An eye for an eye, a tooth for a tooth might not be such a bad thing in the thoughts of those who have suffered since 1986 with the pain of losing loved ones.

The Federal Appeals Courts have generally not found in favor of these arguments. Therefore, the likely outcome is that the appeal will fail.

Cooey is scheduled to meet his maker on 14 October 2008.

Annoyance Provisions -- Tossed

Just a very brief update.

The Federal Court has tossed the annoyance provisions as they were written in Clause 7.1 of the legislation. The legal reasoning was that the provision was an infringement on free speech as there was no intelligible boundary as to what an annoyance is. The secondary reasoning was that current provisions in other laws and regulations are more than sufficient to deal with offensive behaviour.

Let's go annoy some pilgrims! The photo is of the two individuals that brought the action to the Federal Court, Amber Pike and Rachel Evans.