20 November 2009

National memory

With marking out of the way I'm reading Australia and the Birth of the International Bill of Human Rights 1946-1966 (Leichhardt: Federation Press 2005) by Annemarie Devereaux, Sorry States: Apologies in International Politics (Ithaca: Cornell Uni Press 2008) and Prague in Danger: The Years of German Occupation, 1939-45: Memories and History, Terror and Resistance, Theater and Jazz, Film and Poetry, Politics and War (New York: Farrar Straus Giroux 2008).

National memory, just like memorialisation, is a strange thing.

It is interesting to see the emergence of questions about the announcement that the National Archives of Australia will shortly end its presence in Tasmania, the Northern Territory and South Australia - noted recently in this blog.

One analyst commented that those locations hold significant records of ongoing interest and in different formats, including substantial quantities of photographs. Examples include the Child Migrant collection and records relating to Maralinga (in Adelaide), material regarding the 'Bringing Them Home' inquiry and its results (in Darwin), and Australian Antarctic Division material (in Hobart). Presumably researchers - official and private - will need to pack their bags and visit Canberra or Sydney, as the NAA's enthusiasm for large-scale digitisation of images appears to have waned. Perhaps the Archives will simply shuttle records to and from the east coasts, although that will implicitly restrict access and will of course erode the cost-savings foreshadowed by the NAA executive.

One reader of this blog wondered whether closure means that the NAA will face costs in restoring the premises to the condition required by the terms of the leases. There are also questions about the cost of employee redundancy, relocation and any retraining. So far there has been no public statement about the "sympathetic institutions" (curious phrase) that might provide storage on behalf of the NAA. That provision would presumably be at rates comparable to commercial service providers, given that the state archives are under pressure from their masters to make cost savings and 'sweat' public sector assets.

A true partnership between the NAA and its state/territory counterparts (with shared facilities, a genuine commitment of funding and opportunities for the strengthening of professional skills) would arguably be a step forward in enhancing access by all Australians to the records of government. However, it would be a bold step, a reshaping of the archival landscape and of Commonwealth/State relationships, to be undertaken on a strategic rather than reactive basis.

It is unclear from the NAA statement that such a step is envisaged; instead the NAA may be simply preemptively pruning several of its limbs and trusting that the administrative version of 'tea & sympathy' will be forthcoming from its Minister or from its state peers.

DIY corporate surgery using a chainsaw sometimes backfires: the benefits aren't as great as expected and the smell of blood excites the unwholesome. It is easy to imagine the drier economic rationalists asking why the NAA shouldn't further cut costs by euthanasing its Perth and Brisbane branches, and why the reduction of "service costs" in Canberra cannot be taken further. (Presumably Brisbane will survive until after the NAA hosts the International Council of Archives congress in 2012.)

The NAA 2009-10 component of the portfolio Budget Statement indicates that -
A need for a new storage and preservation facility remains as pressing as ever because the Archives' current storage facilities are very close to full capacity. The Archives estimates that it will have to curtail transfers from agencies in approximately five years time if new storage capacity does not become available. In addition, the current storage facilities are ageing and costly to operate, especially in terms of their energy costs. Hence, one of the Archives' major priorities for the coming financial year will be to complete the business case for a new state of the art storage and preservation facility.
Beancounters or opportunists in search of easy short-term fixes might ask why not close the Victorian office and ship those holdings to a spanking new facility in a cowpaddock on the outskirts of Canberra?

Why not go further and adopt the 'Irish Model', ie merge the national library and national archives? (The minister responsible for that merger commented in the Irish legislature on 21 October that "Bodies such as the National Archives do not move with quite the same speed as greyhounds". Quite so, when they're missing a leg or two rather than merely being underfed and under-loved.)

Concerned citizens may wish to raise their concerns with the Director-General, with the NAA Advisory Council (a body sufficiently important, it seems, to justify memorialisation through publication of a book with the title A Necessary Safeguard) and with the Minister.

19 November 2009

Torture and Old Sparky

The national Attorney-General today introduced the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009, following consultation with the States and Territories and reflecting the Commonwealth's external affairs power under s 51(xxix) of the Constitution [PDF].

The expectation is that the legislation will extend the current prohibition on capital punishment to Australia's state jurisdictions.

The proposed Act will create a specific Commonwealth offence of torture as part of the Commonwealth Criminal Code.

That new offence will operate concurrently with existing offences in state/territory laws. One example is s 320A of the Criminal Code 1899 (Qld), which provides that "a person who tortures another person commits a crime" (attracting a maximum penalty of 14 years imprisonment), with torture constituting "intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion" (pain or suffering including "physical, mental, psychological or emotional pain or suffering, whether temporary or permanent" but excluding what happens when you play football, visit the dentist or listen to some academics and politicians. Consent matters).

The Act will also amend the Death Penalty Abolition Act 1973 (Cth) [here] by extending application of the current prohibition on the death penalty to state laws, "to ensure the death penalty cannot be introduced anywhere in Australia".

Amending the 1973 Commonwealth statute to cover state laws will "safeguard Australia's ongoing compliance" with the Second Optional Protocol to the International Covenant on Civil & Political Rights (ICCPR), ie regarding abolition of capital punishment. (The text of that Protocol is here.) Introduction of the Bill in the national parliament coincides with reports that yet another person has been stoned to death in Somalia for the crime of adultery and that Iran has disposed of more enemies of the people. Having lectured a group of Chinese officials this morning I don't care to think of how many people have been shot in the PRC this week.

Torture

Australia has been a party to the United Nations Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment (CAT) since 1989. The Convention requires Australia to ensure that all acts of torture are offences under domestic criminal law.

The Convention defines torture as any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain specified purposes, such as obtaining information or a confession from a person. (A sentence that involves being locked in a very hot cell with only a slop bucket and a beefy rapist who suffers from 'poor anger management' thus isn't torture, although it might be a form of hell for the inmate.)

The Crimes (Torture) Act 1988 (Cth) [here] currently criminalises acts of torture committed outside Australia, only when committed by Australian citizens or other persons who are subsequently present in Australia. Acts of torture committed anywhere in the world during the course of an armed conflict or as a crime against humanity are currently criminalised under the Criminal Code Act 1995 (Cth).

In previous periodic reports to the UN Committee Against Torture, Australia has stated that it meets its obligations on the basis that acts falling within the Convention's definition of torture are offences under state/territory criminal laws. Those acts include infliction of bodily harm, murder, manslaughter, assault and other offences against the person. The Committee Against Torture has criticised nations that have not enacted torture as a specific criminal offence, and has called on nations to do so. In its May 2008 'Concluding Observations' on Australia the Committee recommended that Australia enact a specific offence of torture at the federal level. The Government - in seeking to "demonstrate [a] condemnation of torture in all circumstances" - has responded with legislation to enact a new offence of torture in the Criminal Code, which will criminalise acts of torture within and outside Australia.

The legislation will repeal the Crimes (Torture) Act 1988 (Cth), as the current statute would be redundant. Extraterritorial application is intended to reflect a key aim of the Convention, ie to end impunity for torture globally.

The offence is intended to operate concurrently with existing state/territory offences. In introducing the Bill the Government indicated that enactment of the new offence is not intended to exclude or limit the concurrent operation of any other Commonwealth law or state/territory law.

Capital Punishment

The ICCPR permits capital punishment for the 'most serious crimes'. Australia's adherence to the Second Optional Protocol involves further obligations, requiring the nation to "take all necessary measures" to abolish the death penalty within its jurisdiction and ensure that no one within its jurisdiction is subject to the death penalty.

The death penalty was abolished for Commonwealth and Territory offences in 1973 through the Death Penalty Abolition Act. Each state subsequently independently abolished the death penalty, with no hangings having taken place since the 1960s - the last being described in The Hanged Man (Melbourne: Scribe 2002) by Mike Richards. (Australia never acquired a taste for Old Sparky, one of Thomas Edison's favourite toys, or embraced the lethal injections in use in some US states.) There are no proposals by any state/territory Government to reinstate capital punishment but recent populism might reasonably lead civil libertarians to worry that a desperate government might reach for capital punishment to save its own skin.

The Attorney-General commented that
Introducing a specific Commonwealth offence of torture will more clearly fulfil Australia's obligations under the United Nations Convention Against Torture to ban all acts of torture, wherever they occur.

The purpose of the legislation is to extend the application of the current prohibition on the death penalty to State laws. This will ensure that the death penalty cannot be reintroduced anywhere in Australia in the future.

The amendments emphasise Australia's commitment to our obligations under the Second Optional Protocol to the International Covenant on Civil & Political Rights, and ensure that Australia continues to comply with those obligations. Such a comprehensive rejection of capital punishment will also demonstrate Australia's commitment to the worldwide abolitionist movement, and complement Australia's international lobbying efforts against the death penalty.

Marriage

Two perspectives this afternoon on marriage and death.

The UK Independent reports ('Till death us do not part: French woman marries dead fiancé') that Magali Jaskiewicz has married her dead fiancé.

The dead man, father of her two daughters, was killed in a road accident two days after the couple informed the town hall that they planned to become man and wife. That was almost a year ago. Under article 171 of the French civil code it is possible for a bride or groom to marry a dead fiancé, with permission from the French President after providing clear evidence that the people planned to marry and were interrupted by the grim reaper.

The Article dates from December 1959, after De Gaulle was inspired to change the law to enable Irène Jodard to marry deceased fiancée André Capra, a victim of the Malpasset dam disaster. It specifies that -
The President of the Republic may, for grave reasons [no pun in the original], authorise the celebration of the marriage where one of the future spouses is dead after the completion of the official formalities indicating unequivocally his or her consent.

In this case, the effects of the marriage date back to the day preceding that of the death of the spouse.

However, this marriage may not involve any right of intestate succession to the benefit of the survivor and no matrimonial regime is considered to have existed between the spouses.
I haven't yet checked for an exegesis of the Article, which presumably gives the surviving partner some consolation and confers the father's name on the offspring.

The Independent delivers the expected bathos -
The bride wore white but, as the mayor sadly pointed out, she was a widow before she left the town hall. ...

"She left the town hall a widow but she had taken her loved one's name," Mr Caput said. ... "It is a real love story. When the gendarmes brought her the decree signed by the President, she came straight to see me. She said, 'These are my first tears of joy since Jonathan died'."

[Jaskiewicz] dressed all in white, married Jonathan and became his official widow. During the ceremony, a large colour portrait of Jonathan was placed beside her on a wooden stand. ... The bride, relatives and friends and the couple's daughters, Doriane, three, and Kassandra, 18 months, then went to place flowers on the bride-groom's grave.
Supposedly there are around 20 such posthumous marriages in France each year, which on consideration are less bizarre than the retrospective conversion of dead ancestors practiced by devotees of the Church of Latter-Day Saints.

The last major media coverage appears to have been reporting of a 'provocation' by US performance artist Shishaldin, otherwise known for selling her DNA on eBay and running the New York City marathon dressed in salami, so much more original (for anyone who can't remember the Italian Futurists) than dressed as a salami.

'Lautréamont and the Haunting of Surrealism' by Shane McCorristine in 5 Studies across Disciplines in the Humanities and Social Sciences (2009) 31-49 reports that in 2004 Shishaldin
released a report to the media and appeared on British television claiming that she was attempting to marry the Isidor Ducasse aka the Comte de Lautréamont [author of Les Chants de Maldoror and interred since 1870] by invoking an obscure article of the French Civil Code which allows for the marriage between a living citizen and a dead fiancée. Shishaldin wrote a letter to President Jacques Chirac requesting that he authorise this posthumous engagement: En tant qu’artiste, je me sens compulsif pour faire un stand 'bold' à la défense du mariage en tant qu'une union qui ne peut pas être définie, une union des âmes et des spirites, la sorte d'union célébrée par fait d'art et de littérature ..., un mariage d’art et littérature.
Chirac was apparently not amused.

Coincidentally there has been a reference in the New York Times to the 1964 'von Linde' case, a posthumous dissolution of a US marriage that illustrates conceptualisation of marriage as something concerned with heterosexual activity.

In Estelle F Sophian v. Manfred Graf von Linde (10/27/64) the NY Supreme Court Appellate Division First Division upheld the lower court's decision in favour of Ms Sophian, who had sought posthumous annulment of a marriage between her niece and Mr von Linde. The husband, who died in 1968, is otherwise famous as a plastic surgeon who worked on Montgomery Clift's face and as a supporter of gay liberation prior to Stonewall.

The court notes that
The marriage took place on March 1, 1962. On March 11 the couple went on their honeymoon in Haiti. On March 14 the wife died there. The action is brought by an aunt of the deceased wife. No question of the capacity of the plaintiff to bring the suit is raised.
The Annulment was sought on the basis of fraudulent misrepresentations inducing von Linde's wife to enter into the marriage.
here were three causes of action, each based on representations of a different character. The first alleged that defendant misrepresented his age, origin and ancestry. The second alleged that he concealed the fact that he was a homosexual. And the third alleged that he misrepresented his intentions to have normal sexual relations with his wife. The [lower]court dismissed the second cause of action for failure of proof and submitted the other two causes of action to the jury. The latter found for the plaintiff on both causes of action.
The appellate court noted that -
As to the first cause of action, it was established beyond doubt that defendant's real name is Robert Dent and that he is a native of Birmingham, Alabama. He married under the name of Manfred Graf Von Linde, a name which he continues to use; and at the trial he claimed the protection of the Fifth Amendment as to all inquiries as to how he came to adopt it.
It commented that -
In this case the status of the parties, the bald-face fraud practiced for an obvious venal purpose on a woman peculiarly susceptible to this kind of allure, provided an issue as to the fairness of defendant's dealing. Its resolution by the jury is not in conflict with our law.

As for the third cause of action, there is, and there could be, no dispute that, if the defendant never intended to have normal sexual relations with his wife and either concealed or misrepresented this state of mind, it would constitute fraud material to the marriage contract. The objection here is as to the proof that defendant had such an intent. Proof of an intent rarely rises to a degree that absolutely precludes a finding to the contrary. The proof here was as to defendant's statements and conduct after the marriage. Here also the fact that the person whose testimony would be expected to shed the most light on the facts, namely, the wife, was dead, made the proof more difficult. But there was proof, and the greater part of defendant's argument is devoted not to its sufficiency but to its credibility. That was a matter for the jury, and we cannot say that their conclusion was against the weight of the evidence. ... The evidence presented in support of the third cause of action that the marriage between Lucille Rogers and the defendant was never consummated was based on the testimony of the Haitian chauffeur employed by the defendant relating to conversations he overheard by Lucille Rogers and the defendant while they were riding as passengers in the back seat of an automobile.
In discussing Dent/von Linde's sexuality, the court was more cautious, commenting that -
it is unnecessary to consider the appeal from the dismissal of the second cause of action. However, a brief statement of our views might be in order in the event that a retrial should ever become necessary. Dismissal was on the ground of failure of proof. The proof consisted of one act of homosexuality committed some 16 years prior to the marriage. There was also proof that the deceased wife had a very marked aversion to sexual deviation. The court concluded, rightly, we believe, that this single act was not proof of defendant's sexual character, nor was the proof of the wife's aversion sufficient to draw the inference that, had she known of this single act long antedating the marriage, she would not have accepted defendant's proposal. However, subsequent to the verdict plaintiff moved on the basis of newly discovered evidence for judgment on the second cause of action. The newly discovered evidence consisted of records of the United States Navy Department showing a long and continuous history of homosexuality. These records had been subpoenaed for the trial but were not made available by the Navy Department until after the verdict was rendered.

One Smell

The 3,105 page judgement by the NSW Supreme Court in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 (aka the 'One-Tel Case') is a depressing read.

Austin J found in favour of controversial entrepreneur Jodee Rich against ASIC, the national corporations regulator, in litigation that followed the demise of the One.Tel telecommunications group. That demise involved failure of One.Tel Ltd (a large Australian-listed company that had attracted major investment from the Murdoch and Packer families) and its local subsidiaries, accompanied by the collapse or on-sale of overseas subsidiaries. It was depicted in Paul Barry's Rich Kids (Sydney: Bantam 2002), which historian Bridget Griffen-Foley described as a tale of "breathtaking greed, self-aggrandisement, mismanagement, ineptitude and duplicity".

Following the collapse, seen by some as emblematic of the dot-com bubble, ASIC brought civil penalty proceedings for breach of the statutory duty of care of company directors and officers. The proceedings were initially brought by ASIC against three executive directors and the non-executive chairman of One.Tel. Action against joint managing director Bradley Keeling and non-executive Chair John Greaves was settled in 2003, with Keeling agreeing to a ten-year disqualification from acting as a director and liability to pay compensation of $92m and Greaves accepting a disqualification from being a director for four years and liability to pay compensation of $20m.

ASIC alleged that the defendants did not disclose the true financial position of the company to the board, and that they knew or should have known the true position.

Argument in court centred on whether ASIC had proved its case as to the true financial position in the first quarter of 2001. The judge concluded that -
ASIC has failed to prove its pleaded case against either of the defendants. Therefore judgment should be entered for Mr Rich and Mr Silbermann in the proceedings.
He indicated that -
ASIC's contentions have a superficial appeal, but time and again they were shown to be unpersuasive when the underlying financial detail was investigated. When Mr Carter's evidence was largely excluded, ASIC presented what it described, frequently, as a documentary case. Although there were many categories of documents, three categories were particularly significant, so much so that the defendants described them as the "three pillars" of ASIC's case (T 14952): management accounts, aged creditors reports and collection profile summaries. When those documents were scrutinised in detail, they were found to be, wholly or in part, too unreliable to form the basis for financial findings: the Australian fixed wire/service provider management accounts at 20.3, Australian aged creditors reports at 11.2.5, and collection profile summaries at 4.8.6. The difficulties encountered with those documents might have been overcome, wholly or in substantial part, if ASIC had brought forward witnesses to explain the documents and give evidence as to their status, witnesses such as Mr Holmes or Ms Nassif for the fixed wire/service provider management accounts and Australian aged creditors reports, and Mr Basman for the collection profile summaries. But that evidence was not forthcoming and so the unexplained problems with the documents added up to a serious flaw in ASIC's case. No evidentiary presumptions are needed for the court to get to that conclusion, but some are available as discussed in Ch 3.

To the extent that ASIC's case rested on other documents of less uncertain meaning, and on the evidence of its witnesses such as the UK witnesses, Ms Randall and Ms Ashley, the defendants were able to advance alternative plausible explanations for what had occurred, and ASIC failed to prove its case to the appropriate civil standard, having regard to the presence of those alternative explanations.

An additional problem with ASIC's case has been the extent to which it has strayed outside its pleading. The problem areas are identified in para 2.3.6. I have not expressly correlated the findings made in para 2.3.6 to the substantive discussion of the submissions found in the body of the judgment. However, in cases where I have considered a submission by ASIC in the body of the judgment and rejected it on its merits, and I have also found at 2.3.6 that the submission is impermissibly outside ASIC's pleading, my intention is that the submission is rejected on both the substantive ground and the pleading ground.

This judgment and the verdict to which it leads are the product of civil legal proceedings conducted in accordance with our adversary system. Under that system the issue for determination is whether the plaintiff has proven its pleaded allegations, by the evidence that is before the court. The question for determination is not the larger issue of how it happened that a rising corporate group supported by two well-resourced investors came to fail, in spectacular circumstances. The court has not been asked to determine, at large, who was to blame for the disaster, as amongst the defendants, other executives, non-executive directors, major shareholders and advisers. The proceedings are not a Royal Commission. Notwithstanding the huge amount of effort that has been devoted to these proceedings by the parties and their advisers, and by the court, many questions about the failure of One.Tel are left unanswered. That was inevitable, given the nature of the proceedings and the questions placed before the court for resolution.

One of the unanswered questions is whether One.Tel would have survived if, in May 2001, PBL/CPH and News had maintained their support for the company and implemented their plan to underwrite a deeply discounted rights issue to raise $132 million. The tendered evidence has led me to reject ASIC's figures as to the financial circumstances of One.Tel at the end of February, March and April 2001, and to prefer the figures set out in Chs 11, 13 and 15 respectively. If those figures are right, a fundraising of $132 million accompanied by continuing support by the major shareholders would probably have been enough to address the company's cash requirement until November 2001, by which time, according to the business plans, the company's businesses would have been generating more healthy Group cash flow. The withdrawal of that support, and the abandonment of the rights issue, may well have ensured that the company could not survive.
The judge also commented that -
Throughout my judgment there are criticisms of ASIC's submissions and of aspects of its conduct of this case. Amongst the more serious are my views that:

• the scope of the case, endeavouring to prove the financial circumstances of a large multinational corporate group over each of four months, was far too wide and produced an excessively long and burdensome proceeding;

• in a substantial number of significant ways, ASIC's final submissions were outside its pleaded case;

• ASIC chose not to call any witness to explain certain tendered documents, instead inviting the court to draw inferences from the documents notwithstanding their ambiguities and other grounds for doubting their reliability; and

• ASIC's engagement of Mr Carter to provide expert evidence in the proceedings gave rise to substantial difficulties, in circumstances where Mr Carter had previously prepared a detailed report to assist the Commission to decide what course of action to take, with unfettered access to documents and witnesses, and he was told when his forensic report was at a mature draft stage that he was to exclude information he had obtained from individuals who would not be called to give evidence.
Ian Verrender in The Age today reflected on the judgement, commenting that
The time has come to bite the bullet. Disband the Australian Securities and Investments Commission and start all over again. For if there is one thing that has come of yesterday's mammoth Supreme Court judgment it is this: ASIC, even though it is run by lawyers, seems incapable of putting together a decent case to present to the courts.

Given it already has a less than impressive record when it comes to the investigation of corporate malfeasance and white collar crime in general, this embarrassing episode should hammer home the final nail in its coffin.

Yesterday's 3000 page judgment by Justice Robert Austin is a damning indictment on the ability of our corporate regulator.

The case against the One.Tel founders was ill conceived, poorly conducted and riddled with errors at almost every step. ASIC's arguments to the court were embellished and exaggerated, its evidence and analysis of the company's financial situation deeply flawed and it failed comprehensively to convince the judge of the fundamental basis of its case - that the defendants misled the board and the market.
ASIC has responded to the judgement, indicating that -
ASIC Chairman, Mr Tony D'Aloisio said the case should provide important guidance to executives and directors on the exchange of information between the board and management.

Additionally, the case has shed light on several important legal issues, notably the additional responsibilities of the chairman of a public company, particularly one with a finance/accounting background and considerable experience on public boards. It also identified the right of defendants in civil penalty proceedings not to give discovery or file witness statements until the conclusion of evidence by ASIC's witnesses.

'The case has also provided important guidance to ASIC on how to run similar matters in the future'

18 November 2009

First Nations

I've belatedly caught up with Paul Chartrand's 30pp 'Reconciling Indigenous peoples' sovereignty and state sovereignty' [PDF], published by the Australian Institute of Aboriginal & Torres Strait Islander Studies in September this year.

Chartrand examines the concept of 'shared sovereignty' as
a contribution to the debate on reconciliation with Indigenous peoples in Canada and Australia. The discussion includes some commentary on some common features of the reconciliation debate in both countries. The main focus is on the views of a minority of justices in a Supreme Court of Canada case and their comparison with the analysis of Canada’s 1996 Royal Commission on Aboriginal Peoples.
His conclusion notes that
The concept of 'shared sovereignties' is presented as an idea that may influence the way citizens think about the indigenous peoples, and their aspirations to live harmoniously with others in circumstances of peace and justice in each country. I have not pretended to determine for indigenous peoples what their aspirations might be, and my contribution is intended to be supportive of aspirations for reconciliation.

An assumption behind the discussion in this paper is that concepts or ideas are useful and practical. It is interesting that politicians in each country have run roughshod over this simple proposition. To illustrate, they have used rhetoric which pretends to assert a preference for 'practical' strategies over such things as 'abstract discussions about rights ...'. The better view would seem to be that ideas or concepts are useful and practical guides for action. In this view, ideas play not only an important but an essential role because they inform actions designed to reach a particular policy objective. Ideas or concepts inform the development of legal rules and build a coherent doctrine governing a particular sphere of law. Furthermore, extremist views, whether advanced by politicians or ivory-tower ideologues, can not, by their very nature, contribute much to reconciliation.

Shared sovereignties as an idea moves collective thinking in a country that has jettisoned the idea of terra nullius, and which now accepts that the existence and presence of indigenous peoples on their lands matters, to the more fully equitable notion that not only the existence but also the political action of indigenous peoples matters in the creation of practices, precepts and laws that reflect a consensual view of the fundamental values that guide a vision of the just society and of the constitutional order that ought to sustain it. Indigenous peoples have a right to aspire to live according to their own visions of the good society, inspired by their own concepts about the universe and the values that ought to inform the way that good relations are to be established and maintained within families, communities, and the Nation-State. This is my understanding of the essence of the right of self-determination.

... The goal of creating harmonious relations can only be achieved, in the long run, by creating and maintaining good relations between representatives of the indigenous peoples and representatives of the State's governments. The agents and representatives of States, that is, the democratically elected government politicians, decide what is the nature and scope of the 'public interest' of all citizens. That includes all Aboriginal persons. Aboriginal persons are entitled to the enjoyment of all the rights of citizens, and are also subject to the obligations of citizenship. So the government represents the public interest of the entire population of the State, and its government members make decisions in the public interest. At the same time, under the concept of 'shared sovereignty', those who speak for the Aboriginal peoples have the authority and power to make decisions in the 'public interest' of each Aboriginal people that has a right of self-determination.

It is better to live with 'shared sovereignty' than with 'contested sovereignty'. The latter is the enemy of democracy and the companion of repression, subjugation and civil strife. It is better to legitimize the de facto governance of States such as Australia and Canada over the indigenous peoples by welcoming the participation of indigenous citizens in all decision-making that affects the general public interest as well as the public interest of each of the 'nations' or 'peoples' entitled to self-determination.

Wherever decisions are made that affect the interests of indigenous peoples there they must have a voice. The concept of 'shared sovereignty' stands for the idea that legitimate political participation today can cure an unconscionable beginning. If a just vision for our common future in our country must be built upon a common truth about the past, then perhaps 'shared sovereignty' also stands for the idea that as a country we can have a just vision of our society that is built upon an illusion about our ancestors so long as the illusion is commonly held. This should not be surprising if it is accepted that countries or societies seem to build a collective self-identity upon idealized histories.
It is a worthy study but to me far less persuasive than David Ritter's lapidary and insightful 250pp Contesting Native Title: From Controversy to Consensus in the Struggle for Indigenous Land Rights (Crows Nest: Allen & Unwin 2009).

Ritter was an Associate to Justice Robert French (now Chief Justice of the High Court) when the latter was President of the National Native Title Tribunal. Ritter subsequently served as Principal Legal Officer of a native title representative body and wrote the provocative 88pp The Native Title Market (Crawley: University of Western Australia Press 2009).

Contesting Native Title will discomfort some readers but is of major value for people interested in Indigenous land rights in Australia, in law's treatment of Indigenous people and in justice as a process rather than an outcome.

Enchanted Palaces and magic candles

I'm reading Mark Mazower's 236pp No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton Uni Press 2009), Beth Simmons' 451pp Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge Uni Press 2009) and Eric Posner's 266pp The Perils of Global Legalism (Chicago: Uni of Chicago Press 2009).

The Mazower is simply a delight: lucid, respectful, realistic, full of insights. It is founded on an awareness of history, appreciation of legal principles and recognition of how states/individuals actually behave. I recommend it strongly. The Posner strikes me as clever - very Chicago School - but overall unpersuasive because centred on a view of law as something that can ultimately be reduced to a cost/benefit analysis without any fuss about transcendent principles.

On the subject of magic the excellent Christine Corcos points to a US incident in which a Florida psychic was arrested after attempting to extract $1,000 from a customer.

The aggrieved customer was reportedly approached by Tiffany Evans at the Smith Haven Mall (so much more convenient than in a moonlit conventicle in the dark dark woods or in a smelly gypsy caravan) on 7 September. She agreed to have her fortune read for $25. During the reading - no specifics on whether it was just a quick squint at the palm or whether animals and other critters (newts, rats, chickens) were harmerd in the process - the victim was informed that for another $100 she could have a more detailed reading. She coughed up. On meeting Evans - again at the mall - on 9 September she was told that she had a curse. Never fear: hand over another $1,250 for a stone (where would we be without a magic stone, even if it isn't the stone extracted from the forehead of a toad) and a body wash and the curse would then be lifted.

Later in September the victim handed over $600 as the down-payment for lifting the curse. She received a small stone and a plastic bag containing an unknown liquid. When she next meet the psychic, watched by undercover police officers, Evans pretended to read the victim's fortune (checking whether the curse was half-lifted?) and attempted to sell her candles for $550. The candles would supposedly remove negative energy. The media report concludes with the lapidary phrase: "Officers arrested Evans at 4:51 pm."

17 November 2009

Necrosis is the new black

One of the fascinating aspects of the sociology of knowledge (if I was being cruel I'd say the anthropology of academia, given that members of the PhD tribe have as many shibboleths and fetishes as the latest undiscovered people in the Amazonian rainforest or New Guinea Highlands) is watching the way that new disciplines create and propagate language to reinforce their exclusiveness, assert authority or simply have fun.

'Necro' it seems is 'in' among the cultural studies people. Necro is the new black or the circlet of pig tusks and human incisors around the young warrior's neck.

Goldie Osuri's 'Media Necropower: Australian media reception and the somatechnics of Mamdouh Habib' in 5(1) Borderlands (2006) - the journal where the UnDead such as Foucault and Derrida haunt the landscape (please, someone, please show them the way back to Pere Lachaise or unleash Jane Austen the Fearless Zombie Killer!) - discusses how Mamdouh Habib -
was discursively positioned within Australian media reception. Specifically, I argue that Habib's body was made culturally intelligible within what I call media necropower or contemporary media practices which reconfigure the politics of race and assimilability within the somatechnics of racialised bodies. Reading at least two televisual interviews on Sixty Minutes (2005), and Dateline (2005), as well as newspaper articles and a number of public responses to Mamdouh Habib's interviews, this paper will explore how the materiality of Habib's body was produced within a speculative, judgmental regime, media necropower.
Hmmm, can't beat necropower and judgmental somatechnics. The latter is -
a newly coined term used to highlight the inextricability of soma and techne of the body (as a culturally intelligible construct), and the techniques in and through which bodies are formed and transformed' (2005). With reference to Derrida's work, Joseph Pugliese discusses somatechnics as a way of addressing how 'techne', understood as 'writing, signifying systems and hard technology', is not applied to the body. In fact, the body and techne are indissociable since 'techne in fact constitutes a type of "arche trace" that constitutes the very conditions of possibility for the cultural intelligibility of the body' (Pugliese, 2005). In this sense, 'the body comes into being only through techne' (Pugliese, 2005). Or, to put in another way, the technologies of thinking, seeing, hearing, signifying, visualizing, and positioning produce bodies as culturally intelligible.
And necropower, you ask? No, it's not a green form of electricity generated by attaching a set of jumper leads (ouch, no alligator clips on the nipples) to the phosphorescent cadaver of a philosopher who hs reached his use-by date but is still getting the tonsil-hockey treatment from the disciples.

Necropower is associated with necropolitics.
Post 9/11, these technologies are intensified through the practice of necropower. The practices of necropower by the U.S. and its allies have been represented as necessary to the very identity of democracy and freedom. This necessity of the practices of necropower marks a discursive shift in post 9/11 national and international politics and mediascapes. In making visible how the 'war against terrorism' enables the reinvention and practice of necropower, which constituted the difference of colonial rule, on populations within colonial centres, I make the claim that contemporary western governmentalities (through state and other forms of governmentalities such as media governmentality and the exercise of consumer citizenship) demand new forms of racialised assimilable bodies and subjectivities which will comply with, consent to, and even demand overt practices of necropower while maintaining the identity of the 'west' as 'civilized,' democratic, and free. These new forms of racialised assimilable bodies and subjectivities are always already situated within the shifting historical hierarchies of racial formations in different locations. ... But the practices of necropower point to the intensification and reconfiguration of race and assimilability through the somatechnics of racialised bodies.

In order to understand what racialised assimilable bodies and subjectivities these post 9/11 forms of governmentality require, it is necessary to trace the theorization of necropolitics and the practice of necropower as outlined by Achille Mbembe.
Damn, until today I had missed out on Mbembe.
Positing biopower in Foucault's terms as 'that domain of life over which power has taken control', Mbembe outlines a series of ways in which the concept of biopower does not account for the place of 'life, death, and the human body (in particular the wounded or slain body)' in the context of politics as a form of war. Mbembe's articulates necropower specifically as the type of power exercised in Palestine reconfiguring the relationship between suicide, resistance, sacrifice and terror. So if necropolitics is the 'subjugation of life to the power of death' (2003: 39), freedom itself (for the figure of the suicide-bomber, for example) may be a vision of that which is to come through death, which is itself 'a release from terror and bondage' (2003: 39). In this context, the concept of necropower accounts for the ways in which 'in our contemporary world, weapons are deployed in the interest of the maximum destruction of persons and the creation of death-worlds, new and unique forms of social existence in which vast populations are subjected to conditions of life conferring upon them the status of the living dead' (Mbembe, 2003: 40).
No, he's apparently not describing the Shoah ... or what happened in the Ukraine under Mr Stalin or Comrade Pol Pot.
In Mbembe's thesis, necropower operates in the space of the late modern colony where the sovereignty of the colonial power is based on the violence of occupation. ... In the historical moment that we're living in, the practices of necropower are constitutive of the discourses of security and freedom of populations located in western nation-states through forms of governmentality not simply aligned with the state. The invocation of security and freedom shifts dominant discourses on the acceptability of torture or other 'state of exception' practices as now fundamental to the freedom, sovereignty and security of western nation-states and its citizens.
Subhabrata Bobby Banerjee, writing on 'Live and Let Die: Colonial Sovereignties and the Death Worlds of Necrocapitalism' in the same issue of Borderlands, generously develops -
the concept of necrocapitalism by discussing contemporary forms of organizational accumulation that involve dispossession and the subjugation of life to the power of death. Drawing on the works of Agamben (1998, 2005) and Mbembe (2003) I discuss how some contemporary capitalist practices contribute to this subjugation of life. I discuss some ideological formations of necrocapitalist practices and examine what kind of social relations are disrupted and destroyed as a result of these practices. I discuss the organization and management of global violence and explore the rise of the privatized military and its use in the so-called war on terror.

... rather than reduce death to distinctions between labor whether in a colonial or a metropolitan context, it is necessary to understand necrocapitalism as a practice that operates through the establishment of colonial sovereignty, and the manner in which this sovereignty is established in the current political economy where the business of death can take place through states of exception. In this sense, it is necessary to read the manner in which colonial sovereignty operates to create states of exception conducive to the operation of necrocapitalist practices.
You can't have too much necro - the academic equivalent of the black eyeliner used by seriously emo Goth kids (essential for members of the little tribe but underwhelming grizzled wrinklies such as myself who wonder whether the insights are all that exciting or original once the academic mantras are translated into ordinary English). Banerjee notes that -
Situating necropolitics in the context of economy, Montag (2005: 11) argues that if necropolitics is interested in the production of death or subjugating life to the power of death then it is possible to speak of a necroeconomics - a space of 'letting die or exposing to death'.
What about necrogastronomy - the endless wait for service that is a feature of life "in the historical moment that we're living in" followed by food that sees you parked interminably, twixt life and death (or just smells and feels that way), in the smallest room in the house. Or necrocallcentre, situated in the offshore limbo land staffed by resentful subalterns you'd much rather be home reading Gayatri Spivak than keeping you on hold for two hours.

Regulation of Legal Costs

The release of proposals for a National Legal Services Ombudsman, highlighted in the preceding post of this blog, has been accompanied by the National Legal Profession Reform Taskforce's discussion paper on regulation of legal costs.

The paper envisages that the following principles would be embodied in national legislation and more detailed guidelines under the supervision of the National Legal Services Board -
Objectives of the scheme

The scheme would provide for law practices to make disclosures to clients regarding legal costs; regulate making of costs agreements regarding legal services, including conditional costs agreements (eg 'no win, no fee' agreements); regulate billing of costs for legal services; provide a mechanism for assessment of legal costs and for setting aside of certain costs agreements.

Costs disclosure

Before, or as soon as practicable after, giving instructions to act clients will receive sufficient written information about the estimated costs of their matter, and the method for calculating that estimate, to reasonably allow them to make informed decisions about the conduct of the matter. That will include disclosure in relation to costs where a law practice intends to retain another law practice or expert on behalf of the client.

Any significant change to a matter previously disclosed must be notified to the client as soon as reasonably possible after the law practice becomes aware of the change. Costs disclosure should be presented in a concise, clear and accessible format.

Legal practitioners should take reasonable steps to ensure that clients understand the information disclosed. Consumers from "culturally and linguistically diverse backgrounds" should not be disadvantaged.

Clients must be informed about their right to negotiate a costs agreement and to challenge legal costs.

Costs agreements are enforceable as a contract between the parties. (Any assessment will by reference to the costs agreement if it is a valid agreement complying with the legislation). If a law practice fails to disclose anything required by the legislation, the client will not be required to pay legal costs until they have been assessed. The law practice must not commence or maintain proceedings to recover fees until after the assessment. Sophisticated clients may contract out of the mandatory costs disclosure and assessment regimes.

Reasonableness

Legal practitioners and law practices may only charge fair and reasonable costs. A costs agreement is prima facie evidence of what are fair and reasonable costs. Legal costs should be proportionate to the complexity or importance of the issues and amount in dispute. Law practices and their clients may agree to a variety of methods for calculating legal costs. Courts/tribunals may set aside costs agreements that are not fair or reasonable. Legal practitioners and law practices must make reasonable endeavours to act promptly and to minimise delay and must not work in a way that unnecessarily increases costs in a matter.

Billing

A law practice may not seek to recover its fees unless it has provided a properly prepared bill to the client. A law practice may not charge for the preparation of bills and clients may request an itemised bill (at no additional cost). Bills must include a notice about a client’s right to challenge legal costs or to have a costs agreement set aside.Liability of principals for overcharging. Principals of law practices are responsible for the reasonableness of bills rendered to clients, and will be personally liable in the event of the charging of excessive legal costs in matters in which they have acted or which they have supervised. A law practice may be liable for the charging of excessive legal costs by one of its principals or one of its employees.

Cost assessment

Costs assessments must be conducted in accordance with National Rules. Determinations of costs assessors are admissible in disciplinary proceedings as evidence as to the reasonableness of legal costs.

Regulatory Guidelines

The Board will issue National Rules detailing actions that practitioners are required to take to comply with and give effect to the legislative principles. A breach of the National Rules will be conduct capable of constituting unsatisfactory professional conduct or professional misconduct. In the case of law practices, a breach without reasonable excuse may constitute an offence.

Legal Ombudsman

The federal Attorney-General, the Hon Robert McClelland, has announced release by the National Legal Profession Reform Taskforce of two discussion papers.

The Taskforce has "been charged with developing uniform legislation to regulate the legal profession across Australia". It is due to report to the Council of Australian Governments (COAG) in April 2010. Its activity broadly reflects the recent Access To Justice Strategy announced by the national government.

The Papers

The Taskforce's first paper sets out a proposal for a new National Legal Services Ombudsman.

The 18 page paper outlines functions for the proposed Ombudsman including -
* receiving and investigating complaints;
* making determinations in relation to complaints and unsatisfactory professional conduct;
* conducting internal reviews of certain decisions; and
* educating the public and the legal profession on ethical issues and the complaints process.
The Taskforce's second paper articulates "proposals to constrain overcharging and the exploitation of vulnerable legal services consumers".

Those proposals include -
* providing for law practices to make disclosures to clients regarding legal costs;
* regulating the making of costs agreements in respect of legal services;
* regulating the billing of costs for legal services; and
* providing a mechanism for the "assessment of legal costs and the setting aside of certain costs agreements".
The Attorney-General commented that -
In these papers the Taskforce has tackled complaints and legal costs, two critical areas in need of regulatory reform. We need to ensure that consumers of legal services across Australia are afforded consistent protection and remedies, and they can obtain all necessary information to make informed decisions about the conduct of a matter, and that legal costs are fair and reasonable.
The Ombudsman

The expectation is that the Ombudsman would provide consumers of legal services with a "single, easily accessible avenue for making complaints about legal practitioners".

If substantiated, those complaints could result in findings of unsatisfactory professional conduct or professional misconduct against a legal practitioner. The Ombudsman "would have powers to deal with complaints of a more 'consumer' nature, being complaints about the provision of legal services", being able to make a determination if reasonably satisfied that conduct by the service provider was not fair and reasonable in all the circumstances.

The Ombudsman's functions regarding complaints against legal practitioners and law practices would include
• receiving complaints;
• investigating complaints;
• making determinations in relation to complaints of a consumer nature, and certain cases of unsatisfactory professional conduct, and making appropriate orders;
• prosecuting matters involving unsatisfactory professional conduct or professional misconduct in the appropriate disciplinary tribunal;
• conducting internal reviews of certain decisions;
• being involved in reviews by the disciplinary tribunal, and appeals to the Supreme Court in relation to disciplinary matters; and
• providing education to the public and legal profession about ethical issues, producing educational information about the complaints process and advising members of the public about the complaints process.
An office of the National Legal Services Ombudsman (NLSO) would be established to oversee the national scheme. In practice, the NLSO would handle relatively few complaints itself at first instance (for example, only where a complaint is particularly sensitive or may lead to a legal precedent). In most cases, the NLSO would delegate its complaint handling functions to state/territory bodies, which would investigate and resolve complaints, and prosecute disciplinary matters on its behalf.

Those bodies would continue to be separate state/territory entities but would operate "under the name and auspices" of the NLSO (eg as NLSO state/territory offices).

The discussion paper envisages that legal services consumers could automatically access the NLSO via a single telephone number, which could divert them to the relevant State or Territory body.

Archives Adieu

Amid hoopla from the national government about major reforms to informational law (including strengthening of access under the Freedom of Information Act and establishment of an Information Commissioner) it is disturbing to encounter reports that the National Archives of Australia (NAA) is planning to close its Adelaide, Darwin and Hobart offices.

The Director-General of the NAA indicates that
In order to make savings of this order, to meet current commitments and move to being a 21st century organisation that can meet future demands, we need to make fundamental changes to the way we operate.
Being a '21st century organisation' (whatever that is ... presumably one that uses the latest management-speak and has lots of high-tech kit with impressive blinking lights) should not involve excising arms and legs.

Meeting 'future demands' should not mean fundamentally restricting demand by restricting access, especially restriction on the part of an organisation that boasts about its provision of "leadership in archives and records management within Australia and internationally".

Restriiction is antithetical to the Government's announceme earlier this year that
In a significant pro-disclosure reform to the Archives Act, it is proposed that the "open access period" be substantially brought forward. The Archives Act is to be amended to bring forward the open access period for most records from 30 years to 20 years, and for Cabinet notebooks from 50 years to 30 years.
In announcing the changes the NAA Director-General notes that
Some of the records may be relocated to our repositories in Sydney or Melbourne, while others may be relocated locally under a memorandum of understanding arrangement with other sympathetic local cultural heritage institutions.
The closure is attributed, correctly or othwerwise, to the Mid-Year Economic & Fiscal Outlook budget cuts. Although details are uncertain, the closures will reportedly 'save' a derisory $4.9m - a reduction of some $700,000 in the current financial year followed by reductions of $1.4m per year over the next 3 years. Real savings may be less once staff redundency payments are factored in, there is payment to the "sympathetic local cultural institutions" (unlikely to be so sympathetic that they will obligingly accept burdens without recompense) and there is recognition of 'hidden' costs such as trans-Australian shipment of files to 'information access offices' provided by other agencies or 'digitisation on demand' for remote access. The cost of relocating files from the regional offices to the remaining offices, referred to by the Director-General, is unclear. One might wonder how long those offices will remain (are Brisbane and Perth next in the queue for 'rightsizing'?) and ask whether the latest iteration of the 'new federalism' should be more than unilateral buck-passing.

$4.9m is less than the cost of sundry military projects of proven unfunctionality (Collins Submarines, anyone) or successive IT projects damned by the Auditor-General as ill-conceived and poorly executed. (The $8m on the DOA site known as GroceryChoice is small change compared to some of the monumentally dysfunctional systems in agencies such as Customs and Defence.) It is also less than the notional cost of various 'government accessibility' and 'government 2.0' public consultation exercises underway at the moment.

Other benchmarks may be more invidious. As a community we are comfortable paying for tangibles - things that we can stroke, photograph, sit on or formally launch - rather than access to information. The latest annual report of the National Capital Authority notes that "RG Menzies Walk reconstruction Stage 1" in Citizenship Place (which "includes a sitting wall on a gravel beach with the citizenship affirmation inscribed in brass lettering and a sign showing the timeline of Australian citizenship") cost $450,000. The NAA annual report notes that "media advertising company hma Blaze was paid $126,280 (including GST) by the Archives in 2007–08".

The NCA also reports that
On 17 March 2008, a custom-made glass panel spontaneously shattered at the Australian Service Nurses National Memorial. The panel incorporated artwork that forms part of the memorial's curving commemorative walls. The Authority undertook a structural audit of the memorial to determine the cause of the breakage and determined that the glass panel could be replaced. Remedial paving works were performed in conjunction with the glass replacement. The memorial was reopened to the public on 27 October 2008. The cost of these works was $109,223 (including GST).
Should memory and memorialisation be restricted to glass panels and bits of photogenic bronze?

The rationale for closure of the NAA's regional presence is unclear. Tensions within the Archives have been apparent over a number of years, with suggestions for example that the organisation simply centralise all access in Canberra (with academics, journalists, students and other members of the public being forced to come to the national capital) or rely on digitisation of the kilometres of records in its repositories across Australia.

Past executives and members of the organisation's Advisory Council have resisted such quick fixes, arguing that there is value for officials and for the public in having a network of Archives regional offices (ie having archival material stored in the region in which those files or other items were created and being able to examine that material in the relevant state/territory capital or retrieve it from that office for official scrutiny). They have criticised the 'cost savings uber alles' ethos, noting that a quite nifty way to save small amounts of money - by federal government standards - would be to turn most archival material into cardboard. Why not get rid of that pesky FOI Act as well ... and some inconvenient courts or administrative law?

The Archives Act 1983 (Cth) does not prohibit the closure. Section 63 of that Act ('Location of material of the Archives') gives the Director-General considerable discretion. It specifies that "material of the Archives shall be kept at such places as the Director-General considers appropriate". If it was cheaper to store records in Nauru, Patagonia or Antactica the Director-General presumably has the authority to authorise such a transfer. Section 63(2) of the Act states that
In considering the places at which material of the Archives should be kept, the Director-General shall take into account:

(a) the convenience of persons who are likely to require access to the material;

(b) the desirability of keeping related material in the same place; and

(c) the appropriateness of keeping in a State or Territory material that relates in particular to that State or Territory or to places in that State or Territory.
Closure is analogous to the National Library closing its reading rooms for four days a week ... readily justifiable on 'cost' grounds (analogous to the Yes Minister model of refusing any patients access to a hospital, because all those sick people get in the way of the floor polishing and people with management consultant clipboards) but contrary to the organisation's raison d'etre.

The closure is a short-sighted and self-defeating measure that should be strongly condemned by anyone with an interest in Australian history and public administration and by anyone who expects the current Government to 'walk the talk' about public access to public information.