Al-Kateb v Godwin

Many court cases become famous or historic because of the controversy that surrounds them. While many cases follow existing laws there are some that interpret the law in a new and different way, setting new precedents. In 2004 the case of Al-Kateb v Godwin in the High Court of Australia did just that.

In the year 2000, a Palestinian man named Ahmed Al-Kateb who was born in Kuwait moved to Australia. Al-Kateb applied for a temporary protection visa which recognizes a person as a refugee who is fleeing persecution. A temporary protection visa (TPV) is issued to someone who applies for refugee status after arriving unauthorised in Australia. In Al-Kateb’s case, the Commonwealth Minister for Immigration made the decision to refuse his application. The Refugee Review Tribunal and the Federal Court upheld the Commonwealth’s decision.

In 2002 it was Al-Kateb’s wish to then return to Kuwait or Gaxa, however, no country would accept him. Due to the countries refusal and Australia’s denial of a TPV Al-Kateb was declared stateless and wound up being detained within the policy of mandatory detention.

There were two issues that made this case so controversial. One is whether or not the Migration Act 1958 allowed for a person in Al-Kateb’s situation to be detained indefinitely. The Migration Act allowed unlawful non-citizens to be detained until their removal from the country, even when their removal could not take place in the foreseeable future. The second issue was if the Act did permit indefinite detainment was it actually legal under the Constitution of Australia. 

These two points caused quite a debate, with two Justices offering differing views on the constitutional interpretation. The views these individuals expressed focused particularly on human rights and the role of international law. The High Court considered these issues and a majority ruled that the Act allowed for indefinite detention and was not unconstitutional.

At the time Al-Kateb was to be detained indefinitely until either a Middle Eastern state became willing to take him or a state of Palestine was created. The ruling sparked major controversy as many saw the scope of mandatory detention laws as a violation of human rights.

The case put pressure on the Immigration Minister and forced the Court to review other stateless people’s circumstances. At the time 24 people being held in immigration detention had their cases looked at for a second time. After reviewing Al-Kateb and 8 other people were granted bridging visas. In 2005 these people were released from detention, however, they were unable to study, work or obtain government benefits. 

Al-Kateb has said of the situation that he was constantly worried about being sent back and had to rely on donations from friends and supporters. In the summer of 2007, he was granted a permanent visa by Immigration Minister Kevin Andrews.

The case is used in academic circles as an example of the court taking differing approaches to statutory interpretations and how a legalistic approach can contrast with a purposive approach.

Pros and Cons of Retaining a Lawyer

A retainer fee is money paid in advance to a lawyer for services that will be rendered. The retainer can be paid based on an estimate of the amount of work done for the client that month or can cover all anticipated work for the entire case.

For example, if you hire a lawyer to handle a custody matter you may pay them 5,000 to provide that service. In that case, every letter, phone call or time spent working on your case will be billed to the retainer amount that you’ve put on deposit with them. In some cases, if you do not use the full amount in some cases there is no refund or credit. It’s important to understand the retainer agreement and read the fine print before signing so you know just how any overpayments will be handled. If you use more than the amount of the retainer it is reasonable to be sure that you will have to pay additional fees.

There are a number of reasons that a lawyer may request a retainer fee. It can compensate the lawyer for the use of their expertise and reputation, even if it is because that particular lawyer’s name can help the client gain leverage or allow the case to settle quickly. There are instances where the right lawyer can even achieve a settlement after only a few phone calls or a letter. If that’s the case that the value of the retainer fee is obvious and the lawyer should be compensated for the use of his or her reputation.

A lawyer may also request a retainer fee when they are agreeing to be on standby for the case. When that happens the lawyer is essentially forgoing other gainful employment or business opportunities so that they are able to remain available when they are needed for the lawsuit. This is a major reason many businesses have lawyers on retainer if the situation occurs where a lawsuit is filed against a company a lawyer that is on retainer can be available immediately with their expertise.

Furthermore, retainer fees protect lawyers once the work has begun. If the case proceeds the lawyer can use the fee to defray costs as they work on the case. If a disagreement takes place or an unforeseen circumstance makes it impossible for the client to pay the lawyer the retainer fee ensures that the lawyer will receive at least some of their compensation for the time they’ve spent on the matter.

There are, inevitably, arguments against collecting a retainer fee up front. There are people who are simply put off by the idea of prepaying for a service and will choose to hire a lawyer who does not charge a retainer fee. That is often why a lawyer who does charge a fee upfront is a professional who is specialised in a major discipline, well-known, or exceptional in one way or another. Scarcity creates value which can provide specialised lawyers with an advantage when negotiating retainer fees.

Another argument against retainer fees is that for some potential clients there is a fear that if a case settles before much work is done the client will have essentially paid for nothing. However, the counter-argument to that is of course that the lawyer has potentially utilized his or her reputation and the client paid for the opportunity to use that lawyer to their advantage. 

Finally, when given the opportunity to work with two similarly qualified lawyers many may choose the one who does not charge a retainer fee. Many lawyers are willing to forgo the fee or refund it if little or no work is actually completed before a settlement is reached. New layers may find that it is beneficial to refrain from collecting retainer fees so that they can compete against more seasoned layers with already developed reputations.

A lawyer’s choice of whether or not to charge a retainer fee is ultimately their preference. It’s important to evaluate layers and determine how experienced, well-known, and qualified that individual is before deciding if their expertise warrants the fee that they are charging. Most lawyers are willing to work with a client and find the best approach so that it is fair to both the lawyer and the client. 

The Case of Dietrich v The Queen

A court case in which a law is interpreted differently than ever before often makes whatever particular subject of the case reach headlines. There is usually quite a bit of controversy. When a ruling is brought down in these situations it can influence the future of similar cases in the future. Dietrich v The Queen in 1992 was a great example of such a court case.

Dietrich v The Queen was a very important case concerning the nature of the right to a fair trial. It also highlighted in what circumstances legal aid should be provided by the state for defendants who cannot afford legal representation. The issue began when the accused, Olaf Dietrich flew from Bangkok, Thailand to Melbourne Airport concealing 70 grams of heroin in condoms that he had swallowed. Australian Federal Police arrested Dietrich the next morning and he was taken into custody. 

While being tried in the County Court of Victoria for charges relating to drug trafficking the accused did not have any legal representation. While Dietrich had applied for the Legal Aid Commission of Victoria’s assistance, it said that unless he pleaded guilty it would not help him. Dietrich refused to plead, and instead applied to the Supreme Court of Victoria for assistance, but once again was turned down. While Dietrich was acquitted of the lesser charge, he was convicted on the principal charge in the County Court. Dietrich then took his appeal to the Supreme Court, which refused to hear it. Finally, he then sought leave to appeal to the High Court of Australia.

During the appeal in the High Court Dietrich was represented by David Grace of the Queen’s Counsel. The argument stated that his trial in County Court had been a miscarriage of justice because he did not have legal representation. His lawyer argued that because of the seriousness of the crimes he was charged with counsel should have been provided to him at the public’s expense. If that was not possible, it was alternatively argued that the judge should have adjourned the trial until Dietrich could obtain counsel for himself. 

Dietrich used three different sources in law to prove his point. The first was a section of the Victorian Crimes Act 1958 which has since been repealed. The second was the obligation of Australia under the United Nations International Covenant on Civil and Political Rights (ICCPR). The article of importance in the Covenant provides that an accused person should have legal assistance provided in any case where the interest of justice so required. Australia hasn’t incorporated the ICCPR into its own domestic laws with any type of specific legislation, however, Dietrich argued that common law of Australia should be developed in principle of the ICCPR and other international treaties that the country is a part of. 

In the High Court, the majority of judges decided that Dietrich did have the right to a fair trial and by not allowing him proper legal representation the original trial was unfair. Furthermore, it was concluded that when someone accused does not have legal representation, through no fault of their own and is charged with a serious offence, a judge can order than a trial is stayed until legal representation is available.

The nature of this trial focused on the common law tradition that anyone accused is entitled to a fair trial. This case was significant in not only criminal law, but also in Australian constitutional law because members of the High Court found implied human rights in the Australian Constitution.

Things to Consider When Choosing a Lawyer

The type of legal matter will determine what sort of lawyer you’ll need. However, there are many other aspects to take into consideration when choosing a lawyer. Finding the right legal counsel is important so it’s necessary to do research and ensure that it’s a good fit.


Here are a few factors to consider when choosing a lawyer.

Reputation

The reputation of a firm is something to pay attention to. A good firm will uphold a reputation for honesty not only among clients, but also its peers. It’s also important that the firm has strong drafting skills. Do your research and look for references so that you have an idea of the firm’s integrity.

Experience

It’s important to consider the experience of your representation. Not only should you consider the number of years that a lawyer or firm has been in practice, but also whether or not they have any reported decisions. While it’s important to settle when it makes sense, it’s necessary to prepare for trial when things can’t be settled outside of court. If your case ends up going to court you’ll want to feel confident in the abilities of your lawyers during a trial.

Partnerships

If you are an Australian who is facing legal action from somewhere outside of the country you’ll want to know whether or not the firm has any experience partnering with international, regional, or national firms. Furthermore, if they do have experience find out if the outcomes were successful in those cases. If a lawyer is going to be dealing with laws and lawyers from different countries then make sure that your case won’t be there first time getting that experience.

Results

Ask the firm to see a Case Study or Practice Area summaries so that you can see examples of their work. It’s not enough to seek a good lawyer, find a great one. The track record of the firm you choose should have fantastic results.

Practicality

Make sure that the lawyer or firm understands your financial budget and will settle on a number that works for both of you. Avoid lawyers that make you believe that they’re looking to make a quick buck or aren’t being practical on how they are approaching your case.

Value

Value can go hand in hand with practicality. Make sure that you know what you will be expected to pay for the legal services. Develop a clear understanding of the contract and if you are paying on contingency then know the percentage that you’ll expect whether or case goes to court or settles.

Sometimes it can be difficult to draw a line between personal and business legal interests. That makes it all the more important to have a lawyer with the right experience and confidence to use their abilities to work towards getting you the results you need. It is extremely important to understand the legal position that you are in when choosing a lawyer to represent you.

How To Choose an Area of Law Practice

Law school does not always prepare students for an important factor in the success of their careers. Choosing an area of practice is something to take seriously and there are many things to consider. It’s imperative that you take the stability of the field, as well as your own personal ability and satisfaction into account when deciding on an area of practice.

Law is an incredibly competitive field so choosing and committing to an area of practice is best to accomplish while still in school. Employers are interested in candidates that have already shown interest in a specific field. Once you’ve decided on an area that best suits your personal agenda you can begin demonstrating interest by more focused classwork or an internship.

When a firm is hiring, employers are going to lean towards someone who has interest and knowledge of what it is they are hiring for. It can allow you to stand out from other interviewers that may not have a focus, and even assist you in narrowing down your job search. As a lawyer’s career lengthens it can be increasingly difficult to change fields. By committing to an area of practice early you can gain expertise that will help you to grow professionally.

Certain areas of law practice are a better fit for certain types of personality. There are three broad areas of law and each involves a unique skill-set. Take inventory of your strengths and weaknesses so you can better match yourself to a practice area. For instance, corporate lawyers, which include real estate and finance are best suited for someone interested in commercial affairs and business aspects. Corporate lawyers spend a lot of time drafting contracts and closing deals, so if that sounds like something you’d find enjoyable consider how well you work within a structure of interpreting contracts and paying close attention to details.

Furthermore, if you’ve despised legal writing and research classes then you may not want to be a litigator. Litigators often work at large firms or as trial attorneys and spend large amounts of time researching, writing, and thinking analytically. Many cases are fought and settled without ever moving to the courtroom, so someone in this field should enjoy developing advocacy and dealing with writing and discovery.

If, while in school, you’ve realized that you have a passion for a specific subject or issue then you may want to consider being a regulatory lawyer. These lawyers practise at all types of levels and there are many government agencies that employ them for things such as drug laws, energy, healthcare, or the environment. As a regulatory lawyer, you will handle administrative hearings, lend legal advice to companies, and interpret laws in regards to very specific schemes.


When it comes to choosing an area of law practice, make sure that you’re doing your research. Attend industry events, speak to lawyers in different fields, and read as much as you can. It is vital that you understand your goals by being aware of what different career paths and practice areas look like.

Types of Legal Technology on the Market

Technology is advancing at a rapidly increasing rate. In this day and age you’d be hard-pressed to find an industry that isn’t affected by the technology that’s been introduced to the market. Law is no exception to this movement. Like many other occupations, lawyers have seen a shift in pre-requisites for employment that involves increased digital literacy.


Law schools have begun offering electives that aim to improve students knowledge of technology to help instill an advanced technological aptitude for those entering the workforce. Legal teams can now automate many routine and repetitive tasks, allowing them more time to work on complex legal issues. It’s evident that legal technology has already become something of a necessity.


There are a plethora of products on the market that perform different and overlapping functions. It can be daunting for a company to choose the right product, and while many try to create their own tech, often times they end up buying something off the shelf.



There are six categories that can break up the broad legal technology market. 


Artificial Intelligence

This may be the most ambitious of all legal tech products on the market. AI products aim to summarize legal documents and answer questions more quickly than a human lawyer, and with more accuracy. This technology is sometimes perceived as a threat to the profession.


Contracts
The contracts software has been used to reduce the time it takes to draft, review and analyse legal contracts. It allows mark-ups of changes to be made easily and a few of the software companies even offer risk and compliance analysis in their product.


E-discovery

The e-discovery software simplifies the process of searching electronic data and deeming it useful as evidence in litigation.


Practice Management

This software is used as a management tool. The systems perform tasks such as time recording, billing, and contract management tools.



Document and Process Management
These systems can help your team to manage documentation. The software offers easy access and collaboration by providing generic legal documentation framework and includes security, e-signatures, and central cloud storage. 


Video Conferencing

While video conferencing isn’t specific to legal technology its use is becoming commonplace with lawyers working remotely. Reliable software for conferencing is vital to any legal team to uphold their arrangements.


When it comes to the use of these systems within a legal team it is often the juniors that use the technology the most. Since they have the most active role it’s a good idea to make them a part of the process when choosing which products to work with. Free demonstrations can be incredibly useful and there are seminars that take place often in Australia. 


If you are interested in the legal tech that a company offers, when you’re considering the agreement make sure that there is IT support included. It’s also important to go a step further and ensure that the support is in the right time zone and that they have good response times.


How to Hire a Lawyer for Your Small Business

When it comes to operating your own business it is important to build a great team that collectively has a broad skill-set. By surrounding yourself with people that you can trust and delegate work to, you will bring different perspectives and expertise to the organization. 


There are two obvious professionals that every business needs early on: a lawyer and an accountant. Both positions are important to the success of a business so it’s surprising that many employers neglect to hire a lawyer until it’s too late. While hiring an accountant is obvious, as you need someone to review numbers and prepare taxes, hiring a business lawyer is not always something that entrepreneurs consider early on.


However, lawyers provide assistance in almost every aspect of a business and are vital. Their roles include tasks such as tackling zoning compliance, trademark and copyright advice, and dealing with liability in general. It is never a good idea to wait until you’re being sued to seek legal counsel. At that point, the problem has already taken place and you’ll end up paying, whether in court costs or settlement fees to resolve the issue. However, often lawsuits can be entirely avoided when you have a lawyer on the payroll. 


One decision to make right away is whether you’re better off going with a small or big firm. Larger firms are typically more expensive however they do come with their advantages. For one, a larger firm holds much more clout than a solo practitioner. This can be beneficial in a number of ways, such as being introduced to financing sources or using their reference when you seek partnership arrangements. Furthermore, a large firm usually has every legal skill under the same roof so you’ll have any and all of your needs met.


The practice of law is becoming increasingly specialized. There are different types of lawyers, so it’s always better to hire someone that has experience with a number of skills. Ideally, you’re looking for a lawyer who can do the following things: prepare contracts that you’ll be sharing with clients, customers, and suppliers. Decide whether to organize your business as an LLC or corporation, provide provisions to your benefit when leasing commercial space, understand the tax consequences of basic business transactions, and have knowledge or connections with an intellectual property specialist.


When you are conducting interviews for a business lawyer it’s important to ask direct questions about their experience. It’s not possible for a lawyer to know everything about every area of law, however, if there’s something major outside of their scope of practice, a good lawyer should have working relationships with specialists who they can refer you to for different types of legal problems.


It’s also important that your lawyer is at least somewhat familiar with your industry; specifically the legal environment of your industry. It’s good to be wary of hiring a lawyer that represents more than one of your competitors. There is of course, a legal code of ethics, however, the last thing you want is sensitive information accidentally leaked to a competitor.


While you are conducting the interview try to get a feel of what type of lawyer you’re speaking with. Every firm employs lawyers that do one of three things: bring in new clients, make sure the existing ones are happy, and actually do the clients work. If you sense that you’re not talking to the lawyer that will actually be doing your work then don’t hesitate to ask to meet that person. You want to be sure that the lawyer providing their services is someone you trust and feel comfortable with.


During the first few years of business you’ll probably be visiting your lawyer’s office frequently so choose one that is conveniently located. Make sure that the person you hire can communicate well. A good business lawyer will outline all of your available options and point you in the direction of what the situation normally calls for. You want to like the person you hire because you’ll have to be comfortable enough to communicate openly. To be happy with your decisions make sure that the person possesses thoroughness, attention to detail, intelligence, and a willingness to work hard and at the end of the day, follow your instincts. 

Hiring the Right Employees

Employee recruitment is an essential part of a business. It can make or break your business. As a leader, you have the stress of constantly being judged for your decisions. Hiring is one of those decisions. Like many other choices, who you hire may not be popular among all of your employees but you cannot please everyone. You must search for specifics in every person you interview to ensure they are the right fit for your company.

 

Commitment

A person who shows commitment to their career is a candidate you should consider adding to your team. You don’t want an employee who switches careers frequently searching for a higher salary. You want a candidate who is searching to further their development as well as helping the company they are joining. 

 

Confidence

Anyone can look good on a resume. Their true character can come out during an interview in how they hold themselves. You want an employee who answers your questions confidently and depending on the position you may have them show their abilities. This could be an analytical or writing test or you could have them bring in a portfolio of their previous work. 

 

Compatibility

A candidate can have all the needed skills and extensive experience in your field but still may not be a good hire. You want to check if they’re compatible with your company’s culture. Have them interact with current employees and managers to test their social skills. 

 

Social Media

A large percentage of companies will look up their hiring candidates online before bringing them in for an interview. This can help you get a feel for the person’s life and whether or not they would be a good fit in your company. It also helps avoid the awkward personal questions during the interview process. You will also find that more companies are listing their job openings on social media. Everyone is using it, might as well use it to benefit your business.

 

Hiring is not a minimal process. There are many steps that go into hiring the right employee. When you hire, you want to retain these employees for years. It saves on the time taken to train new employees. Take these steps to help determine if your next interviewee is ready to join your company.

 

How Franchisees Succeed

Most everyone is familiar with successful franchise businesses. Those that achieve a level of financial and social notoriety can benefit and, quite possibly transform societies and economies. This blog will explore why certain franchises succeed while others fail. Profitable franchises:

 

Master Solid Concept Development

Successful franchisees understand the value of concept creation. This concept will drive the establishment of the products, goods or services the entity in question creates or provides to customers or clients. Solid concepts are simple, in addition to being easy to produce or understand.

 

Establish A Loyal Customer Base

Once a company or organizational concept is developed, reputable franchises execute due diligence establishing a customer base. Businesses cannot survive without continual patronage from a customer base. Successful franchisees identify what their customers want and work hard to satisfy those desires.

 

Identify Appropriate Locations

Many popular franchises succeed because they establish locations at more optimal locations. Profitable franchises position establishments in locations that will attract the most customers.

 

Conduct Consumer Research

In addition to providing reputable, necessary or enjoyable products, goods or services to a consumer base, successful franchises will continually strive to make improvements. No matter how profitable a franchise is and how satisfied the customer base is, chances are there will always be some matter that could use improvement. Franchise overseers might better identify what these issues are by conducting thorough consumer research and feedback. Researching the habits and desires of a business’s customers can enable the entity to provide improved services and greatly enhance their reputations.

 

Do Not Expand Hastily

Certain business insiders who study failed franchises opine that some of these entities did not succeed because they expanded far too hastily. The temptation to “spread the wealth” is an understandable, yet common mistake unsuccessful entities engage in. Successful franchisees will dot and cross all the proverbial “I’s” and “t’s” before expanding into new locations.

 

Do Not Saturate An Already Flooded Market

Successful franchisees do not saturate a flooded market for a particular product or service. For example, a pizza franchisee will typically not enter a market that is already teeming with other pizza franchises. Such an entity might do so only if it provides a unique niche or service the public may clamor for, which using the preceding example, could be an item like gourmet pizza. 

Protecting Your Online Business From Lawsuits

Legal liabilities and lawsuits are some common worst fears that can easily crumble a business if not prevented or managed. As a business owner, it is your responsibility to ensure that your online business is well protected against potential cases that can easily damage the business’s reputation. 

 

Uphold information security

Your online business, most likely, holds customers’ data, such as names and social security numbers. Safe data handling practices, including safeguarding client’s data and protecting financial information from illegal disclosure, ensures that your clients do not file lawsuits against you for potential mishandling of their data.

 

Proper communication with customers

Business-customer communication is a constant process that should be properly regulated to ensure that the kind of information disclosed is accurate and relevant. The kind of information that you display on your business’s website, including potential advice to web users and information relating to products and services should be well regulated to ensure accuracy. This can prevent a possible situation where customers feel defrauded or misled by the business.

 

Compliance with industry practices

Every business investing within a particular industry or area of investment is governed by specific as well as universal standards and practices. Among the crucial standards thereof is the need for businesses to ensure that all products and services are within the quality specifications and standards. Releasing products and services out there that do not meet the industry standards will most likely land your online business in legal trouble.

 

Insurance 

Online businesses are increasingly focusing on adding insurance to their operations and products against potential risks and damages. Such protection is crucial, especially since the products are normally handled by multiple persons before they finally get to the customer. Obtaining insurance for your products gives customers the peace of mind that the product will be in good working condition as described within the e-commerce site.

 

Child protection

Different jurisdictions have different requirements for child protection when it comes to online businesses. In the US, your online business will be required to obtain parental permission when collecting data and information from children under the age of 13 years. It is, therefore, upon you to exercise due caution and put in place mechanisms ensuring that you have an accurate overview of each client who visits your business.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.