Insanity doesn't run in my family ...rather it strolls in, taking it's time to get to know everyone personally.
The Hamilton Spectator, Canada - 1 July, 2014
By Dean Bee
OTTAWA - Many of the Justice Department's finest legal minds are falling prey to a garden-variety Internet scam.
An internal survey shows almost 2,000 staff were conned into clicking on a phoney "phishing" link in their email, raising questions about the security of sensitive information.
The department launched the mock scam in December as a security exercise, sending emails to 5,000 employees to test their ability to recognize cyber fraud.
The emails looked like genuine communications from government or financial institutions, and contained a link to a fake website that was also made to look like the real thing.
Across the globe, an estimated 156 million of these so-called "phishing" emails are sent daily, and anyone duped into clicking on the embedded web link risks transferring confidential information — such as online banking passwords — to criminals.
The Justice Department's mock exercise caught 1,850 people clicking on the phoney embedded links, or 37 per cent of everyone who received the emails.
That's a much higher rate than for the general population, which a federal website says is only about five per cent.
The exercise did not put any confidential information at risk, but the poor results raise red flags about public servants being caught by actual phishing emails.
A spokeswoman says "no privacy breaches have been reported" from any real phishing scams at Justice Canada.
Carole Saindon also said that two more waves of mock emails in February and April show improved results, with clicking rates falling by half.
"This is an awareness campaign designed to inform and educate employees on issues surrounding cyber security to protect the integrity of the department's information systems and in turn better protect Canadians," she said in an email.
"In this case, this exercise specifically dealt with the threat from phishing which is increasingly being used as an attack vehicle of choice by cyber criminals."
"As this project progresses, we are pleased that the effectiveness of this campaign is showing significant improvement."
A February briefing note on the exercise was obtained by The Canadian Press under the Access to Information Act.
The document indicates there are more such exercises planned — in June, August and October — and that the simulations will be "graduating in levels of sophistication."
Those caught by the simulation are notified by a pop-up window, giving them tips on spotting malicious messages.
The federal government's Get Cyber Safe website says about 10 per cent of the 156 million phishing emails globally make it through spam filters each day.
Of those, some eight million are actually opened by the recipient, but only 800,000 click on the links — or about five per cent of those who received the emails.
About 10 per cent of those opening the link are fooled into providing confidential information — which represents a worldwide haul of 80,000 credit-card numbers, bank accounts, passwords and other confidential information every day.
"Don't get phished!," says the federal website, "Phishing emails often look like real emails from a trusted source such as your bank or an online retailer, right down to logos and graphics."
The site says more than one million Canadians have entered personal banking details on a site they don't know, based on surveys.
In late 2012, Justice Canada was embroiled in a major privacy breach when one of its lawyers working at Human Resources and Skills Development Canada was involved in the loss of a USB key.
The key contained unencrypted confidential information about 5,045 Canadians who had appealed disability rulings under the Canada Pension Plan, including their medical condition and SIN numbers. The privacy commissioner is still investigating the breach.
The department has some 5,000 employees, about half of them lawyers.
The Canadian Press
By consumer affairs reporter Amy Bainbridge
Posted Tue 8 Apr 2014, 6:10pm AEST
RELATED STORY: Origin Energy facing legal action over door-to-door sales
RELATED STORY: AGL fined over illegal doorstep sales tactics
RELATED STORY: ACCC launches legal action over door-to-door sales
Energy Australia has become the latest electricity retailer to be slapped with a substantial fine for its door-to-door sales practices.
The Federal Court has ordered Energy Australia to pay $1.2 million, a decision which follows fines issued to other energy retailers in recent years for similar sales tactics.
The Australian Competition and Consumer Commission (ACCC) took Energy Australia to court last year for conduct that took place in Victoria, Queensland and New South Wales between July 2011 and August 2012.
The court found Energy Australia sales staff made false and misleading representations and engaged in misleading and deceptive conduct while calling on consumers in their homes to negotiate electricity agreements.
"This is another important outcome in the ACCC's focus on door-to-door sales tactics in the energy industry and follows other significant penalties ordered against some of the largest energy retailers in Australia," ACCC commissioner Sarah Court said.
"The message to the industry is clear. Energy companies must act now to ensure that their sales agents and representatives comply with the Australian Consumer Law and do not engage in illegal sales practices."
During the court case, the ACCC singled out several alleged assertions made by sales agents, including that:
The company's general manager of sales and marketing, David Hamilton, says his company worked cooperatively with the ACCC to reach an agreement.
"We take our legal obligations and commitment to providing quality customer service very seriously and we apologise for failing to deliver in these cases," Mr Hamilton said.
"We have already improved our sales compliance processes by improving how we monitor, assess and report on sales, and have increased resources to monitor third-party vendors.
"We also have a compliance program in place and will take further steps to make sure we meet the requirements set out in the orders. This includes ensuring all directors and employees involved with Australian consumer laws are provided yearly training."
Three marketing companies used by Energy Australia to train sales staff have also been ordered to pay fines of $290,000.
Multiple Stories (trading as Aegis Direct) will pay $200,000, while Australian Sales and Promotions will pay $50,000 and Sales Marketing and Real Technologies will pay $40,000.
Energy retailers should 'give up' door-to-door practicesThe Consumer Action Law Centre (CALC) says today's result is a win for consumers.
"Energy Australia is the latest retailer to learn that breaking consumer law will land you in trouble with the regulator," CALC senior campaigner Sarah Wilson said.
"It's an expensive lesson to learn so other retailers would be wise to make sure their houses are in order.
Energy Australia is the latest retailer to learn that breaking consumer law will land you in trouble with the regulator. It's an expensive lesson to learn so other retailers would be wise to make sure their houses are in order.
"Energy contracts are complex products and it's impossible for a customer to make a good decision at the door.
"We think energy retailers should choose more appropriate marketing techniques and give up door-to-door sales all together."
Last year, the Australian Power and Gas Company Limited and Neighbourhood Energy were ordered to pay fines for door-to-door sales practices.
In November, the Federal Court ordered by consent that Australian Power and Gas Company Limited pay a penalty of $1.1 million.
In September 2012, the Federal Court ordered by consent Neighbourhood Energy and its former marketing company, Australian Green Credits Pty Ltd, to pay total penalties of $1 million for illegal door-to-door selling practices.
In May 2013, AGL Sales and AGL South Australia were ordered by consent to pay combined penalties of $1.55 million for false and misleading representations and breaches of the unsolicited consumer agreements provisions.
Marketing company CPM Australia was also ordered to pay $200,000 for its role in the conduct.
Court action against other energy retailers is ongoing.
From: Simon Dempsey
Date: Monday 13 February 2012 9.11am
To: David Thorne
Did you use my desk while I was away? You're not allowed to go on my computer. I can tell someone used it because I shut it down before I left and pulled out the power cord but it was on this morning and where is my mousepad and what is this shit drawn on my desk?
I need to collect everyones time sheets for last week as well. Have you done them?
From: David Thorne
Date: Monday 13 February 2012 9.52am
To: Simon Dempsey
Subject: Re: Timesheets
Good morning Simon,
No, I have decided not to do time-sheets anymore. I'm not a robot. As your new token responsibility as time-sheet collector is essentially the office equivalent of placing an OCD child in charge of equally spaced fridge-magnet distribution to keep it occupied while The View is on, this saves you from having to bother with the whole embarrassing process.
Also, while I generally avoid going anywhere near your cubicle of sorrow, lest the lack of atmosphere suck me in and cause my eyes to pop out like in that Arnold Schwarzenegger movie where he is on Mars and his eyes pop out, I was required to access your computer in your absence due to a client's request for files.
I actually missed you while you were away. To counter this, I placed a plank of wood in your chair and wrote ‘Simon’ on it. He said I could use your stuff.
From: Simon Dempsey
Date: Monday 13 February 2012 10.05am
To: David Thorne
Subject: Re: Re: Timesheets
YOURE NOT ALLOWED TO USE MY COMPUTER. What client needed a file off my computer? Youre not allowed to put things on the walls in the foyer either. It leaves holes. It was a waste of time anyway because I took it straight down. Some of us have work to do you know.
And you don't just get to choose if you do your time sheets or not . You're not special. Its the rules and accounts need them to bill the client properly. I’ve been here longer than you and I put my time sheets in every week. Everyone has to do them.
1. YOURE NOT ALLOWED NOT TOUCH MY COMPUTER
2. DO NOT USE MY STUFF
3. YOU HAVE TO DO YOUR TIMESHEETS. EVERYONE DOES.
I took a photo of my desk and am going to email it to Jennifer. Is it permanent marker? And where are my pens dickhead?
From: David Thorne
Date: Monday 13 February 2012 11.08am
To: Simon Dempsey
Subject: Re: Re: Re: Timesheets
I understand that following a set of rules saves you from having to make decisions but, as you are well aware, all branding services provided by this company are charged at a fixed quote and price. As such, time spent doing time-sheets might be better spent questioning the logic of requiring time-sheets to calculate a fee that has already been agreed upon. Or cleaning your desk.
I once read about five monkeys that were placed in a room with a banana at the top of a set of stairs. As one monkey attempted to climb the stairs, all of the monkeys were sprayed with jets of cold water. A second monkey made an attempt and again the monkeys were sprayed. No more monkeys attempted to climb the stairs. One of the monkeys was then removed from the room and replaced with a new monkey. New monkey saw the banana and started to climb the stairs but to its surprise, it was attacked by the other monkeys. Another of the original monkeys was replaced and the newcomer was also attacked when he attempted to climb the stairs. The previous newcomer took part in the punishment with enthusiasm. Replacing a third original monkey with a new one, it headed for the stairs and was attacked as well. Half of the monkeys that attacked him had no idea why. After replacing the fourth and fifth original monkeys, none had ever been sprayed with cold water but all stayed the fuck away from the stairs.
Being here longer than me doesn't automatically make your adherence to a rule, or the rule itself, right. It makes you the fifth replacement monkey. The one with the weird red arse and the first to point and screech when anyone approaches the stairs. I would be the sixth monkey, at home in bed trying to come up with a viable excuse not to spend another fruitless day locked in a room with five neurotic monkeys.
Regardless, you will be pleased to learn that due to your absence last week leaving me with a spare hour per day, which is usually dedicated to staring at the back of your head with one eye closed doing that thing with your thumb and finger where you squash it, I did do my time-sheets. Please find attached.
Arrived at work. Considered staying home in bed but, with Simon being away this week, there is no real reason to be absent. Checked production schedule. Completed my work for the week.
Cleaned my mouse.
Left for the day.
Arrived at work. Answered the phone on Simon's desk with "Hello, this is Simon Dempsey speaking. How may I be of help to you?" Told client I would have a pdf to them "as quick as a cheetah."
Accessed Simon’s computer using his secret password ‘Archmage’ in order to locate and send requested pdf to client. Sent. Read Simon's emails. Replied to his mother regarding her question about what to get Auntie Maureen for her birthday. Recommended jumping castle.
Attempted to log into Simon's Facebook. Clicked 'send me my password'. Checked Simon's email. Logged into Simon's Facebook.
Changed status to single. Sent Karen a message saying "Ignore the status change. We haven't broken up. I just don't want anyone to know I have a girlfriend."
Looked at pictures Simon uploaded of himself in a boat. Googled the names of the two guys in Miami Vice. Tagged Simon's nipples 'Sony' and 'Chubbs'.
Left for the day.
Arrived at work. Read about Emperor penguins on Wikipedia while having my morning coffee at Simon’s desk. Drew pictures of penguins.
Realised the permanent Sharpie I was drawing with had penetrated the paper and Simon’s desk now had eighteen penguins saying 'Hey' on it. Hunting for something to clean it with, I used the key Simon hides behind the framed photo of his cat Lady Diana to unlock his top drawer. Found Star Wars Lego. Recreated the scene from the movie where, during a light-saber duel, Vader cuts off Luke's right hand, reveals that he is his father, and entreats him to convert to the dark side so they can rule the galaxy as father and son. Lost Luke's hand behind Simon's desk.
Chased and killed a bee in the office with Simon’s mousepad rolled into a tube while making light-saber noises. Closed Simon's window.
Thought about the bee’s family waiting expectantly at home for his return. Gave them names. Imagined Bradley rushing into his mother’s outstretched arms, bewailing, “I miss him so much” and Brenda replying, “I know Bradley, I miss him too.”
Performed ceremony. There was cake. Constructed a small funereal pyre on Simon's desk out of a paperclip, placed Ben's small lifeless body on top, mentioned his selfless determination to provide for his family, and set it alight.
Unfortunately, I was only into the first verse of Bohemian Rhapsody, the only church song I know, when Ben’s body popped like a corn kernel and flew behind the desk. Unsure if he was still alight, I poured coffee down after him. Realising nobody has ever been behind the desk due to its size and position against a rear wall, I also dropped the remains of the cake and the plate down the back to save me having to walk into the kitchen. Accidently knocked Simon's pencils down there as well. And then his mousepad.
Left for the day.
Arrived at work.
Sat in Simon's chair without my pants on.
Left for the day.
Called in sick. Went shopping. Bought a Keurig.
From: Simon Dempsey
Date: Monday 13 February 2012 11.29am
To: David Thorne
Subject: Re: Re: Re: Re: Timesheets
Thanks for the evidence dickhead. I emailed that to Jennifer and i changed my password. I am making a formal complaint. Stay off my computer or I will punch you in the throat. I am serious. Are you going to get my stuff out from behind the desk?
From: David Thorne
Date: Monday 13 February 2012 11.41am
To: Simon Dempsey
Subject: Re: Re: Re: Re: Re: Timesheets
I wish I had the time. Some of us have work to do and time sheets to complete. I have attached today’s should you wish to also email to Jennifer.
Arrived at work. I feel it is important to set a good example for the other staff through promptness.
Received a series of rather vicious emails from Simon, which began with accusations, insults, questions and demands, and degraded into actual threats of bodily harm. This was after I told him I had missed him while he was away. I find this unprovoked animosity disappointing and would have expected more from the employee of the month.
Filled out these time sheets as it is part of the job and allows production to bill the client accordingly. Finding it difficult to concentrate on job priorities today due to the negative environment Simon has created, so will be leaving at lunch time.
From: Simon Dempsey
Date: Monday 13 February 2012 11.53am
To: David Thorne
Subject: Re: Re: Re: Re: Re: Re: Timesheets
Good. I wont have to see your ugly head if you go early. Youre the one who will get in trouble dickhead.
From: David Thorne
Date: Monday 13 February 2012 12.09pm
To: Simon Dempsey
Subject: Re: Re: Re: Re: Re: Re: Re: Timesheet
All new, never before published material.
The first book has debuted at #4 on the New York Times Bestseller list.
Friends of 27b/6
I'll Go Home Then; It's Warm and Has Chairs is the second release by David Thorne and is available now.
More emails, more articles, more everything. The Internet is a Playground is the first best-selling book by David Thorne and is in stores now.
Last Updated: 5 April 2014
Article by Lester Ross, Kenneth Zhou and Tao XuWilmerHale
Reproduced with full attribution from Mondaq
[LawoutofOrder Editor note: This is a topic that we intend to watch with interest]
The Standing Committee of China's National People's Congress on December 28, 2013 approved amendments to China's Company Law (the "Company Law"). The State Council approved amendments to China's Administrative Regulations on Company Registrations (the "Registration Regulations") on December 19, shortly before the Company Law was amended. Both the amended Company Law and the amended Registration Regulations took effect on March 1, 2014. These reforms create a simplified and more capital-efficient registration system with respect to registered capital and regulatory requirements for companies in China. The reforms apply to both domestically-invested enterprises and foreign-invested enterprises ("FIEs"), although the formation of FIEs still requires approval by the Ministry of Commerce ("MOFCOM") or local commerce bureau or commission before company registration can be completed with the State Administration for Industry and Commerce ("SAIC") or its local office (the "AIC").
Before the amendments took effect, shareholders were required not only to subscribe for contributions to registered capital but also to make such contributions upon company establishment. The amendments are based on the system of "subscribed for registered capital" in place of the older system of "paid-in registered capital." Abolition of the paid-in capital registration system, which required companies to file details of both their registered capital and paid-in capital with SAIC or the AIC, greatly simplifies the company registration process.
A company's registered capital continues to be the amount of capital that its shareholders subscribe for as set out in the articles of association, together with the timing of the contribution. However, as paid-in capital is no longer required to be registered, the requirement to file an accountant's report verifying the contribution of capital with the AIC has been abolished.
This reform has important consequences. It frees shareholders from the obligation to contribute registered capital before it is needed. It meanwhile places the burden on counterparties and creditors to conduct meaningful due diligence rather than rely on the static concept of registered capital to evaluate borrowers and counterparties as nothing prevents a company from depleting its registered capital after it is contributed.
Minimum Registered Capital
The Amendments remove the minimum capital threshold. The previous minimum registered capital requirements (RMB30,000 for a limited liability company, RMB100,000 for a one-member limited liability company and RMB5,000,000 for a company limited by shares) have been abolished. Shareholders no longer need to have funding in place on the date of establishment.
The requirement that a minimum of 30% of the registered capital of a limited liability company be in cash has been abolished, giving shareholders more freedom to contribute non-cash assets to registered capital.
The financial, securities and insurance industries as well as some other industry sectors fall outside the scope of the new registration regime, however, as they are subject to the jurisdiction of their respective industry regulators where different policy concerns apply. Industry-specific minimum registered capital requirements may therefore continue to apply in certain sectors.
Note that the new registration regime does not alter shareholders' civil liability in relation to capital contributions. A shareholder who fails to contribute capital in accordance with the articles of association will continue to be liable for that amount to the company and fellow shareholders, as well as to creditors if the company is unable to satisfy its debts.
To implement the amendments, the SAIC on February 19 issued a notice officially canceling the annual inspection procedure for all types of enterprises including domestic entities, representative offices, branches and FIEs. The annual inspection procedure was led by the AICs and required all companies in China to submit documents and information concerning their legal, operational and financial status on an annual basis at the beginning of the following year for review and confirmation by relevant government authorities, including AICs, foreign exchange administrations, tax bureaus, customs offices and other regulators. In accordance with the notice, all local AICs have changed from an annual inspection approval registration procedure to a less burdensome annual filing for the record requirement. From this year forward, all types of enterprises only need to complete online annual filing instead of the previous requirement to complete both online and onsite annual inspections with AIC. Enterprises need also only to print the online AIC approval notice as their record for passing the annual inspection. Previously, enterprises needed to have their business license physically chopped by the AIC.
Impact on Foreign-Invested Enterprises (FIEs)FIEs currently remain subject to the laws and regulations governing incorporation and operation of FIEs in addition to the Company Law. This means that FIEs still need to be approved by MOFCOM or the local commerce bureau or commission before registration. Under the existing FIEs rules, their shareholders are required to make their capital contributions in a lump sum payment within 6 months after formation, or in installments over a period of years provided that at least 20% is contributed within the first three months after formation. The amount of permissible total investment is also subject to approval which constrains their borrowing capacity. It is, however, generally expected that the Chinese government will soon issue guidelines to revise regulations regarding registration of FIEs. In fact, commerce commissions in some localities, such as Hangzhou, the capital of Zhejiang and a high tech center, have already approved formation of FIEs based on subscribed capital, rather than actual capital contributions.
While the direction of reform is promising for foreign investors, the actual benefits derived will depend very much on the details. For example, it is not yet known whether the concept of total investment will still be applicable.
Another area of uncertainty, relates to the FIE approval regime. Under the current FIE approval regime, total investment is one of the factors determining whether an FIE is subject to approval at the sub-provincial, provincial or central level. If the concept of total investment is abolished along with the concept of registered capital, then the FIE approval system will also need to be revised. It may be that the central government is contemplating a registration-only system for FIEs, similar to that being rolled out in the Shanghai Pilot Free Trade Zone where a negative list simplifies approval procedure for some FIEs.
ConclusionWith the amendments to the PRC Company Law already promulgated, and further rules expected soon to relax other requirements, the Chinese government is giving a strong signal that it wants to boost the economy by giving more flexibility to businesses—including foreign investors at a lag.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
23 April 2014, 7.46pm AEST
Author: Michelle Gratton
Reproduced in full with attribution from The Conversation
Joe Hockey says the only sustainable solution to fixing the budget is to wind back the excessive levels of spending. Repairing the budget will require more use of means testing and co-payments, Treasurer Joe Hockey has warned, in a speech also renewing his criticism of “corporate welfare”.
Hockey appealed to people not to judge his May 13 budget on what they got or lost in the short term. It was about “our quality of life for the years ahead”.
While indicating the budget will mostly impose pain, Hockey flagged that Tony Abbott’s signature generous paid parental leave scheme still enjoys protection and that there will be a boost to infrastructure spending.
Drawing on its projections on spending growth, Hockey said the Commission of Audit report, with its 86 recommendations, will be released next Thursday.
He told a function hosted by the Spectator magazine that while stronger growth was part of addressing the budget problem, it wouldn’t be enough to get back into the black.
Without policy change, to return to surplus within five years would require real annual economic growth of 5.25%, far beyond the current potential growth rate of about 3.25%.
Nor could the problem be solved just through increasing taxes. Without policy change, in a decade an extra three million taxpayers would have taxable income falling above the $80,000 threshold that sees additional earnings taxed at the top or second rate of 45 or 37 cents.
Click to enlarge
“Those who may oppose the hard savings measures necessary to deliver genuine fiscal repair would do well to recognise the highly regressive nature of fiscal drag,” Hockey said. The three million would not be “High Street executives on the top marginal rate but hard working wage and salary earners on Main street”.
“The only sustainable solution is to wind back the excessive levels of spending,” Hockey said.
This would mean difficult decisions at the individual program and payment level, winding back some spending that people “have come to take for granted”.
“Means testing must become an even more important part of Australia’s transfer system to ensure the sustainability of our income support payments. Support must be targeted to those most in need,” he said.
With the budget set to impose a co-payment for GP visits, Hockey said “more use of co-payments should be made to encourage some moderation in demand for government-provided goods and services. Nothing is free. Someone always pays.
“It is appropriate that those who use government services should contribute towards their cost.”
He said that in its analysis of spending over the medium term the commission’s report focused on the 15 largest and fastest growing programs predominately across welfare, health, education and defence. They were almost all set to grow faster than average growth in total government spending.
Hockey homed in particularly on the age pension, which he is targeting in the budget. The pension age is expected to be lifted to 70 in the longer term.
“Of the 15 programs, the report observes that the age pension is the largest by a fair margin. The $40 billion we spend on income support through the age pension is much more than we spend on defence, or hospitals, or schools each year. It is our single biggest spending program. Spending on the age pension already takes up 10% of all Commonwealth spending.”
On corporate welfare, Hockey said that too ofter previous governments had been drawn into areas that were better left to the private sector. “It is unsustainable for the Commonwealth to keep devoting significant resources to industry assistance.”
Hockey said the fiscal consolidation program to be revealed in the budget would establish a clear path back to a surplus of 1% of GDP in 2024.
Provides funding as a Member of The Conversation.
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Sun-Herald senior investigative writer
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NSW tobacco laws could be amended to specifically outlaw electronic cigarettes after a landmark legal test case in WA led to the criminal prosecution of an online stockist.
''E-cigarettes'', or vaporisers, are battery-powered devices that simulate the effects of smoking by heating a nicotine liquid into vapour, which the user then inhales and exhales.
Last week, the owner of HeavenlyVapours, Vince van Heerden, said of the ''case law precedent'' in an online forum: ''One can only imagine that the other states may now try to follow suit.''
Asked about the case, the NSW Ministry of Health confirmed it was ''continuing to monitor'' the case and was waiting to see ''whether the decision may be appealed.''
In the meantime, it confirmed more than a dozen Sydney retailers were facing legal action after being caught selling illegal nicotine-laced e-liquids, late last year.
''Prosecutions are being considered for breaches of the Poisons and Therapeutic Goods Regulation 2008 and evidence has been collected,'' a Health Department spokesman confirmed.
Vaporisers range from imitation cigarettes that cost as little as $20, to the Romanian built Wizard Evolved DA20 which sells for $1000.
In 2011, HeavenlyVapours' premises were raided by the Western Australian Health Department over alleged breaches to section 106a of the Tobacco Products Control Act which prohibits the sale of anything such as food or a toy that mirrors a tobacco product. But in September last year, HeavenlyVapours was acquitted by a magistrate's court which ruled there was insufficient evidence that the e-cigarettes in question looked anything like traditional cigarettes or cigars, pointing out the devices could just as easily resemble a ''fountain pen''.
But several weeks after the case was dismissed, the WA Health Department lodged an appeal which proved successful last week with the judge determining that any e-cigarette product that involves ''a hand to mouth action'' and results in the ''expulsion of vapour'' does in fact resemble a tobacco product.
Mr Van Heerden said his legal costs to date were almost $45,000 ''for something no one has ever been charged or prosecuted for before''.
But he has vowed to fight on. ''Common sense and dozens of studies demonstrate that e-juice consumed through e-juice/personal vaporisers do not contain the many thousands of deadly chemicals traditional tobacco cigarettes do,'' he said online. ''We deserve the right to choose an alternative.''
Read more: http://www.smh.com.au/nsw/ecigarettes-case-goes-up-in-smoke-following-landmark-ruling-in-wa-court-20140419-36xih.html#ixzz2zagDbIP6
As Law Schools Struggle, Diversity Offers Opportunities
Michael Morgenstern for The Chronicle
By Aaron N. Taylor
re-printed from http://chronicle.com/article/As-Law-Schools-Struggle/144631/
Legal education has been ground zero for practically all of the major challenges facing higher education: rising tuition, rising student debt, a contracted job market, and resulting questions about the utility and value of the degree. Unsurprisingly, there has been a steady drumbeat of bad publicity that has exposed the sausage-making side of law schools to unprecedented scrutiny.
As a result, applications are down more than a third in just three years. First-year enrollments are at their lowest levels in almost 40 years and down 24 percent since the record high just three years ago. Moreover, declining Law School Admission Test registrations, a proverbial canary, suggest those enrollment trends have yet to bottom out.
That has led colleges to lay off faculty and staff members and to revisit pricing strategies; a few have even gone as far as lowering tuition to attract more students—an unthinkable move during the boom. But lost in the din of negativity is a milestone that deserves cautious celebration: Law schools, as a whole, are more racially and ethnically diverse than ever.
Today, students of color account for 26 percent of all law students. Ten years ago, the proportion was 21 percent; 40 years ago, it was 10 percent. Unsurprisingly, the rate of increase has been uneven. Forty years ago, Asians accounted for less than 1 percent of the nation’s law students; today, they account for 7 percent. The increase among Hispanic law students has been similarly striking, going from 1.7 percent 40 years ago to 8 percent today. Over the same time, the proportion of black students has gone from 5 percent to 7.5 percent.
The changing demographics of legal education are a welcome and necessary trend, even if most of the change is a result of fewer Asian and white students’ applying to law school. But the legal profession remains woefully unrepresentative of the population at large. Blacks and Hispanics account for about 30 percent of the population, but only 8.5 percent of lawyers. That proportion lags behind even the physicians’ ranks, in which blacks and Hispanics account for 12 percent. But today’s record proportion of black and Hispanic law students, while far below where it needs to be, is a tentative bright spot among all the unfavorable trends. That bright spot, however, could evolve into a dim reality if law schools do not adapt.
In their book The End of the Pipeline, the Pennsylvania State University professors Dorothy H. Evensen and Carla D. Pratt write about how the Socratic and case methods—pedagogical bastions of legal education—foster classroom environments that put students of color, women, and "nontraditional" students at a disadvantage. According to data from the Law School Survey of Student Engagement, students of color are less likely to report positive relationships with classmates; female students ask questions in class less frequently; and diverse perspectives are not as commonly expressed as we tend to believe.
To overcome those challenges, reformers have recommended a more seamless and intrusive integration of academic support services and other reforms, like adopting a problem-based approach to framing classroom discussions (as opposed to the venerable case method). Whatever the solution, schools must not miss this opportunity to assess the extent to which their programs aid the development of all students. The ends should be uniform, but the means must be flexible.
An assessment of admissions policies is also critical to the reform discussion. A threshold question is: Do we appreciate the extent of our obligations? When our new classes show up, we are not merely enrolling students; we are enrolling future professionals and leaders. Do our admissions policies and, more important, the qualities we seek in students reflect that long view? And, lastly, do our admissions policies serve equitable ends?
LSAT scores and undergraduate grades play major roles in determining which applicants gain admission to law school. While those indicators do have some value in predicting student success, the value is focused on the first year of law school, an important but nonetheless fleeting period of time. Those indicators have little to no value in predicting longer-term outcomes, like subsequent grades, bar passage, or professional success. Therefore, when one considers the larger purpose of legal education—to prepare students to be ethical professionals and leaders—the folly of undue reliance on the LSAT and undergraduate grades becomes apparent.
Marjorie M. Schultz and Sheldon Zedeck, two University of California at Berkeley professors, conducted a study in which they identified 26 skills that were important to lawyer effectiveness. The skills ranged from the abilities to write, speak, and listen effectively to the abilities to feel empathy for others and passion for one’s work. The professors found that the LSAT had very weak predictive value for 10 of the skills and no value at all for the other 16. Interestingly, two of the 10 correlations were negative—meaning, the higher the LSAT score, the less effective the lawyers in the study were at exhibiting the skills in question (in this case, networking and community service). Undergraduate GPA had even less predictive value across the 26 skills.
The authors identified a range of alternative assessments that were much more effective at predicting lawyer effectiveness—including an 80-question instrument that showed positive correlations with 24 of the 26 skills and a 72-question instrument that correlated with 23. Those correlations tended to be weak, but they also tended to be stronger than the LSAT and undergraduate GPA. Moreover, unlike the LSAT and undergraduate GPA, those assessments had very little deleterious racial or ethnic impact. In other words, the assessments were better at predicting lawyer effectiveness and did so in a more responsible and equitable manner. Those findings are yet more proof of the value of truly holistic admissions policies that serve the larger purpose of legal education.
And all of this comes back to the record proportions of students of color. Much of the rhetoric about the trend has been decidedly negative. A popular narrative seems to be that entering cohorts are weaker over all. Bolstering that assertion are large drops in high LSAT scorers—a trend that makes sense, given that whites and Asians tend to score highest on the test. Another thread to the commentary is that the increased diversity is being driven by weak, desperate law schools that are enrolling weak, desperate students in order to fill seats in a declining market.
While I believe those assertions are rooted in the type of elitism that stifles innovation and progress, law schools must be mindful of the stakes involved when they make an offer of admission. Long gone are the sink-or-swim days when orientation rituals included a directive to "look left and right" to observe future academic casualties. Law schools must take ownership of their students’ success. Now when an orientation speaker asks new law students to scan the room, it must be to prompt them to take note of their future colleagues. That is why we cannot ignore the imperatives presented by the difficult times we face. Our changing students, profession, and society require us to seize the opportunities in this crisis.
Aaron N. Taylor is an assistant professor in the School of Law at Saint Louis University and director of the Law School Survey of Student Engagement.
Who owns a joke? And can a comedian sue if someone steals his material?
By Peter McGraw and Joel Warner
Gun photo by Tanjala Gica/Thinkstock. Illustration by Natalie Matthews-Ramo.
As long as people have been telling jokes, people have been stealing them. Take the celebrated comedian Milton Berle, a guy so notorious for lifting from others’ routines he was known as “The Thief of Bad Gag.” Of all Berle’s suspect material, one particular joke stands out for its lack of originality: “A man comes home and finds his best friend in bed with his wife. That man throws up his hands in disbelief and says, ‘Joe, I have to—but you?’ ” According to Jimmy Carr and Lucy Greeves, in their bookOnly Joking: What’s So Funny About Making People Laugh, the joke bears an uncanny resemblance to one found in the fourth century tome Philogelos, the world’s oldest-known joke book: “Someone needled a well-known wit: ‘I had your wife, without taking a penny,’ He replied, ‘It’s my duty as a husband to couple with such a monstrosity. What made you do it?’ ” For this joke to get from Philogelos to Berle, it was likely passed from one humorist to another for 1,700 years. If Berle stole it, in other words, he was hardly the first.
These days, with so much comedic material captured and preserved on smartphones, YouTube clips, and tweets, joke-stealing allegations are proliferating. Roseanne Barr accused Two and a Half Men of nabbing some of her material. The Huffington Postwondered if Chris Rock had borrowed a gag from his admirer, Aziz Ansari. Sammy Rhodes, a University of South Carolina campus minister, took a hiatus from Twitterafter he was roundly criticized for plagiarizing funny tweets.
With all of this joke borrowing going on, what’s an aggrieved comedian to do? Does anyone actually own a joke, after all? What legal recourse, if any, does that owner have when some hack swipes his best material?
Several years ago, legal scholars Dotan Oliar and Christopher Sprigman asked themselves these questions in response to one of the most prominent joke-theft cases yet: In 2007, Joe Rogan confronted Carlos Mencia onstage at the Comedy Store in Los Angeles and accused him of stealing material. News of the clash, which was caught on video, caused some to bemoan the state of comedic plagiarism, while others argued that every comedian steals and is stolen from—it’s just part of the job.
In the wake of the controversy, Oliar and Sprigman decided take a scholarly look at the matter. “It just seemed odd,” says Sprigman, a visiting professor at the University of Virginia School of Law. “We just wondered, ‘Is this thing normal, that comics confront each other? What else do comics do when they think a joke is stolen?’ ”
After conducting telephone interviews with 17 working comedians at various levels of success in the industry and scouring the legal literature, they discovered that there’s not a lot comics can do about a stolen joke, at least officially. Copyright law defends the expression of an idea, but not the idea itself. So even if somebody stole your joke about bad airline food, there’s little you can do if that person tells the same joke with slightly differently wording—no one owns the idea of mocking bad airline food. And even when a comedian does have a legal basis to accuse somebody of copyright infringement, it can be expensive to do anything about it. (According to the American Intellectual Property Law Association, the average cost for both the plaintiff and defendant in a copyright case that goes to trial can range from $373,000 to $2.1 million.) Maybe that’s why Oliar and Sprigman couldn’t find a single instance of one comic suing another for copyright infringement. (They did find a few instances of well-heeled humorists suing noncomedians over joke theft, like the time Jay Leno, himself an accused joke lifter, sued writer Judy Brown for allegedly pilfering his one-liners for her joke books.)
There’s another problem with accusing someone of stealing your jokes. Sometimes similar jokes appear because the material is just ripe for the taking—great minds think alike. Take one of the jokes Mencia was accused of stealing: In his January 2006 Comedy Central special No Strings Attached, Mencia did a bit about plans to build a border fence to keep Mexicans out of the States that ended with the line, “Um, who’s gonna build it?”
Comedian Ari Shaffir claimed Mencia took the joke from him, and as proof he cited video footage from two years earlier, in which he noted that California Gov. Arnold Schwarzenegger wanted to build a border wall and then cracked, “Dude, Arnold, um, who do you think is going to build that wall?”
It’s compelling evidence, but then again, as Oliar and Sprigman discovered, in 2006,comedians D.L. Hughley and George Lopez also told similar versions of this joke. It’s possible that news reports at the time of the proposed border wall were so rampant, and so laughable, that multiple comedians came up with the same punch line.
It’s also possible that Mencia, Hughley, and Lopez all lifted the bit from Shaffir—but even if they did, they might not have realized it. Comedians constantly mine material from their own experiences, and since they spend so much of their time listening to other comedians, sometimes other comedians’ jokes get caught up in the production cycle without the thief even realizing it. In a lengthy essay on joke stealing, Patton Oswalt admitted to having done this early in his career: “I stole a joke. Not consciously. I heard something I found hilarious, mis-remembered it as an inspiration of my own, and then said it onstage.” And one of the more famous joke-stealing controversies—Dane Cook being accused of borrowing from Louis C.K.’s routines in his 2005 album Retaliation—might have been due to the same phenomenon, as C.K. himself acknowledged. When Cook made a cameo on C.K.’s show Louie, the two discussed the alleged plagiarism, and C.K. noted, “You’re like a machine of success, you’re like a rocket, and you are rocketing to the stars. And your engines are sucking stuff up, stuff is getting sucked up in your engines like birds and bugs and some of my jokes.”
In the early years of stand-up comedy, hardly anyone complained when a comedian stole a joke, whether it was on purpose or not. This was the era of the one-liner, says Sprigman, when most jokes could be slotted in and out of various routines with very little regard to who actually created them. But that changed in the wake of innovators like Lenny Bruce, who didn’t just deliver zingers, but instead told stories and imbued them with a distinctive voice. “There was a shift in comedy from one-liners to a personalized style,” says Sprigman. “These comedians felt more invested in their material, more protective of it.”
While the law doesn’t provide much in the way of protection for comedians, Oliar and Sprigman found that today’s comics do maintain an informal set of rules. If two comics come up with a similar joke, for example, it’s understood that whoever tells it first on television can claim ownership. Similarly, if two comedians are working on material together, batting ideas back and forth, it’s generally agreed upon that if one comedian comes up with a setup and the other the punch line, the former owns the joke.
Those who don’t follow the rules can face escalating repercussions. First they’re subjected to badmouthing; then they get blacklisted from clubs. Finally, if the unacceptable behavior continues, it’s understood that things might get physical. While none of the comics Oliar and Sprigman interviewed admitted to participating in or witnessing fights over stolen jokes, many had heard stories, and they accepted such violence as a possible, if remote, outcome. As one comedian told the researchers, “ … the only copyright protection you have is a quick uppercut.”
Far from being dismayed by this extralegal system, Oliar and Sprigman came away impressed by the comedians’ informal arrangement. “They have managed to put together a community project that requires a pretty high-level amount of group coordination,” says Sprigman. It’s a lot better than the joke-stealing free-for-all of Berle’s era. And it’s hard to imagine a more formal joke protection system, involving copyright filings and other legal procedures, working well in a world where comics are constantly generating and tweaking new material. In fact, Sprigman thinks this joke-stealing code could work for other industries struggling with how to balance creativity and copyright issues, including the music and tech industries. They should borrow it.
When counsel assisting the Royal Commission into Institutional Responses to Child Sex Abuse put it to Cardinal George Pell last week that his lawyers weren’t his moral advisors, she was implying that he shouldn’t blame his lawyers for his pursuit of a morally bankrupt legal strategy. Pell was the client. He gave the instructions.
But lawyers can and should play an important role in helping a client step back and reflect. Lawyers owe clients a duty to act in the client’s best interests. This may necessarily involve helping the client ascertain what their best interests are.
It is the lawyer’s role (especially in litigation, where costs – psychological, financial and, in this case, “spiritual”, can be so high) to put options to the client and ask whether a “no holds barred” approach is in fact in the client’s best interests.
The Ellis caseJohn Ellis was a victim of sexual abuse by a Catholic priest. Michael Eccleston, the church’s investigator, thoroughly examined Ellis’ allegations of abuse. Eccleston accepted, and reported to the church, that serious abuse had occurred.
Despite this, in defending the claim Ellis made against the church, Pell adopted an “attack dog” strategy against Ellis. It appears from evidence given to the Royal Commission that Pell’s lawyers, Corrs Chambers Westgarth, advised this strategy and then prosecuted it with gusto.
In doing so, the lawyers lost sight of their duty to act in their client’s best interests. The lawyers had a duty to counsel Pell to consider the cost to himself and to the church of pursuing such a strategy. They had a duty to suggest to Pell other options he might consider, including settlement.
If the lawyers had turned their mind to the client’s best interests, they cannot have believed that Pell and the church would come out of the litigation unscathed, reputation intact. What value the church’s unassailed coffers, if its reputation for integrity, moral leadership and pastoral care lies in tatters?
Lawyers’ duty to courtAll lawyers, even those who see themselves as hired guns, owe duties to the court. They must not mislead the court. This is whyCommissioner Peter McClellan was so taken aback by the actions of Pell’s lawyers.
Despite the fact that the church had accepted the Eccleston report validating Ellis’ claim of abuse, Corrs instructed barristers to contest Ellis’ claim and put Ellis through days of cross-examination suggesting he was fabricating his allegations.
That cross-examination was, in McClellan’s words, “not necessary” and “extremely hurtful” to Ellis. It gave the court the mistaken impression that the issue of whether or not the abuse had occurred was in serious contest.
The lawyers explained to McClellan that they were “acting on instructions” and that the cross-examination was done by senior counsel and they were not responsible for it. But McClellan would have none of that. They had misled the court, McClellan implied, and in doing so had breached their duty to it.
A merry-go-round of rationalisationsPell explained his actions to the Royal Commission by saying he was relying on legal advice. The lawyers explained their actions as “acting on the client’s instructions” and relying on senior counsel.
In doing so, both parties were using rationalisations – psychological processes that find the most rational and convincing reason for our behaviour, often with the goal of making it look better than it actually is. Rationalisations are self-serving explanations that can reduce or neutralise the impact of the ethical issues involved in a decision.
Psychology tells us that the processes of rationalisation are highly seductive. And that once a rationalisation has been used to support questionable behaviour, it can become deeply entrenched in our thinking.
It is easy to see with hindsight the rationalisations going on in the Ellis case. It was a merry-go-round of rationalisations. Pell was “acting on legal advice” and protecting the church’s assets. The lawyers were “acting on client’s instructions” and holding senior counsel responsible for how the case was prosecuted in court.
And once they had started down that track, it seems neither party was able to pull back and take a broader view of what was happening.
Take home lessons for lawyersFor lawyers, the message from all this is salutary. The proper duty to “act on instructions” can cause lawyers to lose sight of other important and overarching duties. Lawyers need to question their judgements, to step back and consider things from different points of view.
Importantly, lawyers need to ask themselves whether “I’m just acting on instructions” is excusing them from the necessary ethical reflection that might otherwise occur after strong questioning from a Royal Commissioner.
Vivien Holmes does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliation