22 November 2009

Contraband

A recurrent question in intellectual property tutorials is how many bogus items - brand-name clothes, perfume, CDs, bling - get into Australia.

It was thus interesting to see a media release from the Minister for Home Affairs boasting that Customs & Border Protection officers in Fremantle "stopped more than 10,000 counterfeit Tiffany and Company items from reaching the local market and being sold to unsuspecting consumers." Alas, no pictures of the very cute Customs dogs sniffing at the suspect containers and being rewarded with a treat for their excellent work.

The Minister commented that -
It is vital that we stop these goods at the border as they threaten the profitability and reputation of legitimate businesses and are potentially a risk to consumer safety.

Tiffany & Company is a prestigious company and Customs & Border Protection's work in stopping these counterfeit goods ensures there is no negative impact on the famous Tiffany brand.
Ministerial experience of the Holly Golightlys aside, the mechanics of the bust are more engaging.

It appears that the goods were originally referred to Customs & Border Protection on 3 August by the air freight forwarder who thought the consignment, made up of eight boxes, was "suspiciously labelled". The nature of that labelling or the origin of the boxes (China, Vietnam, south of the border down Mexico way?) has not been revealed.

A second shipment of one box was stopped and examined by Customs & Border Protection Compliance Assurance officers on 5 August 2009.

Both consignments were confirmed by Compliance Assurance officers as containing thousands of counterfeit Tiffany products along with associated packaging and care instructions. ("The attention to detail in the packaging makes it especially difficult for consumers to spot a fake.") The goods were formally seized and Tiffany was notified.

Some "10,778 counterfeit items (jewellery and packaging)" were seized, including 476 necklaces, 597 bracelets and 177 rings.

Subsequent investigation by Compliance Assurance officers has identified the supplier of the goods and a website used by the importers to "sell them on a commercial basis".

Holograms, hocus pocus and humbugs

Looking at another instance of recurrent re-invention in Victoria, where former plumber Peter de Angelis became Sioux Lakota Indian shaman Thunder Eagle and then Shamir Shalom. As the Age rather naughtily commented, he -
is not a shaman. He's not even American, native Indian or otherwise ...
and he's in trouble over alleged inappropriate sexual contact with up to six women who paid him several thousand dollars for healing services.

Victorian Health Services Commissioner (HSC) Beth Wilson appears to have been unimpressed, consistent with reporting by the Age that in one "ritual" last year - presumably as part of sessions that included "smoking ceremonies, chanting, drumming and tantric dance" - the ingenious Mr de Angelis (later known as Shamir Narra Avorham Djuwani Kiefa Israel Marlon Wati Dakota Jessie Malakhi-Zion-Angel-Shalom) pressed his body against a client to "absorb the toxins". Uh huh.

Things moved on to the Supreme Court, where Kaye J in Shalom v Health Services Commissioner [2009] VSC 514 found in favour of Wilson.

Shalom had sought an injunction to restrain the Commissioner from presenting the Victorian Parliament with a report naming him, pursuant to subsection 11(5) of the Health Services (Conciliation and Review) Act 1987 (Vic). He had also sought a declaration that his naming through that report is ultra vires.

Subsection 11(2) of the Act offers a 'naming & shaming' mechanism. It provides that the Commissioner may report in the public interest, a provision that enables community awareness of the practice of someone who is providing health services. A report made by the Commissioner under subsection 11(5) may name a person if –
the Commissioner believes on reasonable grounds that naming the person is reasonably necessary to prevent or lessen the risk of a serious threat to –
(i) the life, health, safety or welfare of any person; or
(ii) the health, safety or welfare of the public.
The Court noted that the plaintiff advertised as "Shaman Psychic Spiritualist, Healer, Counsellor" and described himself to his clients as "Shamir Zion Thunder Eagle", claiming to clients that "he was a North American Indian by birth, and that he was an American Indian Shaman Initiate".

The Commissioner alleged that de Angelis/Eagle/Shalom "had acted unreasonably in the manner of providing health services": he had "falsely represented himself as a North American Shaman healer" and in the course of treatment had "breached professional boundaries, by initiating sexual relationships". He responded through two fax messages, denying that he was a health service provider (ie the Commissioner lacked jurisdiction to investigate him). The Commissioner indicated that she did indeed have jurisdiction, because each of the complainants had consulted him for the purpose of healing, his advertisements described him as a "healer" and "counsellor", and his registered business name stated that the nature of his business was "Educative and Healing".

The draft report from her consequent investigation featured three recommendations: that he undergo a psychiatric assessment, only practise in the field of Shamanic Education and Healing in accordance with the Practice Code of Ethics developed by the Australian Shamanic Practitioners Association, and revise his advertising material so as to only make claims regarding his cultural background and qualifications which could be supported by documentary evidence.

Correspondence moved backwards and forwards. The Commissioner noted that his suggestion of a "short course" in Shamanism was inadequate to enable him to comply with the practice code. The plaintiff indicated that he intended to continue to practise in activities which he considered to be outside the Commissioner's jurisdiction, such as teaching meditation. The Commissioner advised that he should not practise at all until he was qualified, and that if he did not comply with the recommendations contained in the report he would be named. The Commissioner appears be underwhelmed by a comment from Mr Shalom that he was now acting as a "psychic detective" rather than a health service provider.

The Court found that Shalom was covered by the Act and that the Commissioner had not denied him natural justice. She is thus in a position to name him in Parliament. The proceedings were open to the public and we are now able to read about "karmic consciousness" and other treats. A more rigorous regime might quarantine "Shamanic Education and Healing" in the entertainment sector, along with tea-leaf reading and scrutiny of chicken entrails. (Reports that Shalom told one of the complainants that he loved her and had been her husband and wife in a past life, that he asked clients to drink their own urine as part of a purification ritual, offered to cure breast cancer by sucking out the "serpents" and danced naked in front of them are surely just made for late night television.)

The Age offers other examples of hocus pocus, including reports that the Australian Competition & Consumer Commission has formally warned vendors of a $400 vibration treatment claimed to cure swine flu with a 100% success rate (apparently even if the healer and client lived on opposite sides of the world). One practitioner offers "quantum bioenergetic balancing", apparently useful for treating cancer, depression, chronic fatigue, cerebral palsy and autism. No indication, alas, of whether it cures mange in cats, keeps the rabbits and possums away from your carrots or will get you a HD in the Legal Systems exam. The Age notes that -
While Ms Hocking does not claim to cure people, she said she had seen a wheelchair-bound multiple sclerosis sufferer walk again and a deaf three-year-old hear after receiving her treatment. "What we do is we put them in the environment where the system actually heals itself ... There's an elevation in the cellular vibration which causes the DNA to communicate more clearly" she said.
Another provider of what is advertised as "health services" deals with flu viruses. For a mere $400 a hologram is "placed in one's psyche" -
If the virus is already established Virus Buster will knock it out in 24 – 48 hrs. If you do not have a virus then the Virus Buster Session will provide you with optimal protection from most flu viruses. ...

All of our sessions can be achieved successfully and with 100% accuracy without needing to come to our Practice. We have the ability to energetically connect with your loved one ANYWHERE IN THE WORLD and fully transfer the vibrational energies of the session to them without them needing to come to us.
Quite.

What do you need to become a shaman? Ignoring paraphernalia such as knucklebone of rat, feather of crow, and crystals of chutzpah, there's the Shamanic Practice Code of Ethics.

In identifying training and qualification requirements it indicates that -
1. It is expected that shamanic practitioners will have received essential training in core practices through their participation in and graduation from an appropriate training regime;

2.Appropriate training regimes are as follows:
1. A formal training course at the diploma, advanced diploma, or degree level in shamanic practice, or

2. A traditional form of apprenticeship to a shaman in an indigenous culture or a form of cultural-spiritual practice which is socially recognised and legitimised [e.g., Condomble in Brazil, or Vodun in West Africa or Haiti] and of at least three years in duration and 1500 hours of training contact.

3. The training shall have covered a range of healing methods which includes one-on-one, group, family and community modalities over at least 100 hours of practical work.

4. The training must be adequately documented.

5. The training program must have covered, in detail, aspects of ethico-legal dimensions of practice, articulation with other healing professions, professional insurances, and relevant state and federal legislation which applies to helping professions.
I particularly like item 3 of the Association's professional conduct code -
Integrity: SP's should not offer services for which they are not qualified to deliver. They should act with honesty, without deception, and not use any form of persuasion or undue influence in securing and delivering services. The services which SP's deliver should be of a kind which preserve the dignity and autonomy of the client and in no way sully the privacy, physical, sexual, financial or psychological integrity of the client. Communication about SP sessions should be clear and concise and offer clients an adequate description of what SP sessions involve and especially with respect to details of techniques used, possible effects [focal and side effects] and professional fees.
That pretty much cuts out anything other than entertainment and general feelgood stuff.

Item 6 in the code specifies that
Parameters of competence: SP's may not diagnose medically or psychologically nor prescribe medications or supplements, nor shall they engage in physical manipulation of the body unless they are appropriately qualified and registered with relevant professional Associations [e.g., the Medical Board and Psychologists' Board in each state, Naturopathic Association, Physiotherapists Board]. SP's should be prepared to show clients copies of their qualifications and training if required by clients, as a matter of establishing bona fides. In this respect, SP's shall not make any misleading or dishonest statements concerning their training, qualifications and abilities to heal or effect therapeutic changes verbally or in writing.
Taken strictly, they can't say much at all ... but presumably that doesn't deter many consumers, especially those whose scepticism isn't associated with perusal of studies such as The Beauty of the Primitive: Shamanism and Western Imagination (Oxford: Oxford University Press 2007) by Andrei Znamenski, a sobering account of cultural appropriation and flimflam.