[BLML] Pleonasm & Law 23 (was LOOT)

Eric Landau ehaa at starpower.net
Wed Jun 13 14:48:36 CEST 2012


On Jun 12, 2012, at 6:56 PM, richard.hills at immi.gov.au wrote:
> Sven Pran:
>
> >The verb «could» in «could have known» implies
> >that a majority balance of probabilities is not
> >required, a significant probability however small,
> >say maybe 25%, is sufficient.
>
> Richard Hills:
>
> The 2007 "false inference" (a.k.a. Deceptive
> Information) Law 73F has retained the "could have
> known" criterion from its predecessor, the 1997
> Law 73F2.
>
> However...
>
> While the 1997 Law 72B1 used the criteria "could
> have known" and "likely to damage", its successor
> the 2007 Law 23 uses the criteria "could have been
> aware" and "could well damage".
>
> My understanding is that the 2007 change in
> language, especially the insertion of the modifying
> word "well", was due to a belief by the Drafting
> Committee that the 1997 Law 72B1 had too wide a
> scope, and that the 2007 Law 23 should be more
> judiciously applied.
>
That sounds backwards.  "Could have been aware" seems weaker than  
"could have known", and "could well damage" similarly weaker than  
"likely to damage".  Weaker criteria means broader applicability, so  
it sounds to me like TPTB wanted it used more than the older wording  
suggested.


Eric Landau
1107 Dale Drive
Silver Spring MD 20910
ehaa at starpower.net






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