12 December 2009

By the pricking of my thumbs

A woman, according to the ABC, is to appear in a Canadian court "on Christmas Eve" after allegedly posing as a witch "in order to defraud a grieving Toronto lawyer".

The case is attracting attention as a curiosity (grieving lawyer - and you thought they had cheque books rather than hearts - meets fake witch) and for use of a statute that non-specialist assume had vanished through desuetude. One contact responded "... ah, those crazy Canadians - it's a Canadian thing, like Mackenzie King channelling the spirit of his dead mum through his taxidermied dog".

Supposed faux witch Vishwantee Persaud -
was charged under a rarely used section of Canada's criminal code for allegedly pretending to practice witchcraft to convince a man that she was the embodied spirit of his deceased sister. 
She did so, police say, in order to defraud him of tens of thousands of dollars.

"Witchcraft is how she got her hooks into him to commit a larger series of frauds against him," said Detective Constable Corey Jones, who investigated the case. "She claimed to have come from a long line of witches and could read tarot cards, then told him his deceased sister's spirit had returned and inhabited a feminine form close to him - intimating it was her - and that she was going to guide him to financial prosperity and business success."

This allowed her to befriend the victim and become involved in his business dealings, setting the stage for the fraud that was to follow, including fictitious expenses for law school tuition and cancer treatments.
In Canada, as in Australia, it is not an offence to be a witch: providing you meet obligations under food safety, public health, cruelty to animals and other statutes you can cook as many newts and bats in your big black pot as you like and persuade yourself that kissing The Dark Master's hairy btm will confer sundry powers.

It is an offence to defraud people by fraudulently pretend to exercise sorcery, witchcraft or enchantment. The current Canadian 'bogus witching law' reportedly dates from 1892 and has been rarely used. It is presumably Section 365 of the Canadian Criminal Code, which provides that -
Everyone who fraudulently -
a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration
b) undertakes, for a consideration, to tell fortunes, or
c) pretends from his skill in knowledge of an occult or crafty science to discover where or in what manner anything is supposed to have been stolen or lost may be found
is guilty of an offense punishable on summary conviction
A police representative commented that "the law is not directed at witches, but rather at using the pretence of witchcraft to separate someone from their money". Persaud faces up to six months in jail and a fine of C$2,000 for sham witchcraft, along with stiffer penalties under conventional fraud charges.

The shape of Australian 'bogus witch' law has changed in the past two decades. The Vagrants, Gaming and Other Offences Act 1931 (Qld), repealed by the Summary Offences Act 2005 (Qld) for example indicated that anyone "who pretends or professes to tell fortunes for gain or payment of any kind shall be deemed to be a vagrant and shall be liable to a penalty of $100 or to imprisonment for six months". The Justice and Other Legislation (Miscellaneous Provisions) Act 2000 (Qld) removed the offence of "pretending to use witchcraft, sorcery, fortune-telling or other occult science" from the state's Criminal Code of 1899.

Section 432 of that Code was concerned with the offence of "Pretending to Exercise Witchcraft or Tell Fortunes". It provided that -
Any person who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult science to discover where or in what manner anything supposed to have been stolen or lost may be found, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for one year.
Section 40 of the Summary Offences Act 1953 (SA) regarding 'Acting as a spiritualist, medium etc with intent to defraud' stated that -
A person who, with intent to defraud, purports to act as a spiritualist or medium, or to exercise powers of telepathy or clairvoyance or other similar powers, is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years.
The Vagrancy Act 1966 (Vic) more colourfully provided that -
Any person who pretends or professes to tell fortunes or uses any subtle craft means or device by palmistry or otherwise to defraud or impose on any other person or pretends to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels stolen or lost may be found shall be guilty of an offence.

Blinded by the light

The BBC reports on prosecutions regarding misuse of laser pointers, eg pointing one at a police helicopter rather than at the ppoint slide.

The item rather chirpily comments that UK -
courts have never been busier. On Thursday 9 December Liam Coe, 21, from Hollingworth in Greater Manchester, was jailed for four months for shining a beam at a police helicopter during observations.

While on Friday 10 December, Jomir Ali, 20, from Oxford, was given 200 hours community service for directing a laser at a police helicopter over the city, temporarily blinding the crew.

And last month 25-year-old Richard Wakeman, of Fareham in Hampshire, was given a suspended jail sentence for targeting a police aircraft.

Those caught are charged under article 73 of the Air Navigation Order for recklessly endangering an aircraft - a penalty carrying a maximum five-year jail term. It is the same charge used in air rage cases
Concerns about laser pointers in Australia have been reflected in proposals such as the Police Offences Amendment (Laser Pointers) Bill 2009 (Tas), Criminal Code (Rock Throwing and Laser Pointing) Amendment 2009 (WA) and Criminal Code Amendment Bill (No. 2) 2009 (WA).

Clause 4 of the WA Crim Code Amendment Bill for example provides that it would be a crime to cause a person fear or alarm by "shining a laser or other narrow beam of light at the person without lawful excuse", attracting a maximum penalty of 7 years imprisonment. The amendment indicates that the offence typically occurs when a laser pointer is directed at an aircraft.

Misuse of lasers against aircraft would presumably be caught under statutes such as the Aircraft Offences Act 1971 (SA) s 10, Law Enforcement (Powers & Responsibilities) Act 2002 (NSW). Some jurisdictions have moved to characterising hand-held lasers as prohibited weapons, analogous to bans on knives.

Section 11FA of the Summary Offences Act 1998 (NSW) - discussed here - provides for an offence of possession of any kind of laser pointer in a public place without a reasonable excuse, with a penalty of up to two years imprisonment or a fine of up to $5,500.

Importation of laser pointers is controlled under the Customs (Prohibited Imports) Regulations 1956 (Cth).

Dead fish and rotten reviews

I'm reading Matthew Evans' Never Order Chicken On A Monday: Kitchen Chronicles of an Undercover Food Critic (Sydney: Random House 2007), an engaging addition to the genre that features works such as Mimi Sheraton's Eating My Words: An Appetite For Life (New York: Morrow 2004) and other accounts by reviewers.

A reader has pointed out a spirited and astute review by David Rieff of Daniel Goldhagen's Worse Than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity (New York: PublicAffairs 2009).

Rieff comments that -
It is hard to believe that the erstwhile–Harvard political scientist turned full-time moralist, pro-Israel polemicist and amateur historian Daniel Jonah Goldhagen could have a more devoted admirer than, well, Daniel Jonah Goldhagen. In his first book, Hitler’s Willing Executioners, he stated baldly that explaining why the Holocaust occurred required a radical revision of “what has until now been written” and that his book was that revision. His next effort, A Moral Reckoning, claimed to expose the malign role of the Catholic Church not only during the Holocaust but pretty much from its inception, since, according to Goldhagen, the Church had been the central locus of Western anti-Semitism almost from its founding.

Having, by his own lights, first single-handedly rebutted what he called the "false paradigm" about the Holocaust, replaced its mendacities with his true rendering, before finally unmasking the Catholic Church and its clergy’s enormous “crimes and transgressions,” the historical contours of which, he has said, "no one can rightly deny", Goldhagen has now written Worse Than War, a book whose modest goal is to "reconceptualize, understand anew, interpret differently, explain adequately, and to propose workable responses to [the] catastrophic and systematic problem of eliminationism".

And on the seventh day, He rested.

Worse Than War is, depending on your point of view, either the logical conclusion of the path Goldhagen has been taking for the past fifteen years or its reductio ad absurdum. Despite Goldhagen’s extraordinary claims, he himself concedes in his unwittingly revealing afterword that he is not presenting much in the way of original research. That, however, is just fine with him since, as he puts it, the book "is not meant to be an exhaustive documentation of any individual mass murderer, let alone a history of our time’s sweep of mass murders, let alone eliminations".

Why his decision to write books that, to use a self-description he employed at the time of the publication of A Moral Reckoning in 2003, are "primarily about morality, not history", while simultaneously claiming for himself the authority to denounce or condescend to (condescension being a Goldhagen trope) the work of many of the finest historians working today should be just fine with us is another subject matter.
Rieff notes that -
This pattern began with Hitler's Willing Executioners, where, when he wasn’t busy laying down the moral law, Goldhagen was largely arguing against the historiographical consensus about the Holocaust (the great Holocaust scholar, Raul Hilberg, drew his particular scorn). If he had an essentialist view of German history from the early nineteenth century to the fall of Berlin in 1945 (that essence, broadly speaking, being what he calls eliminationist anti-Semitism), Goldhagen felt equally confident in his ability to discern and lavishly praise the moral regeneration of the post-Nazi German state and society.

The problem, whether when he was doling out praise or blame, as the historian of Nazism Christopher Browning (Goldhagen's bĂȘte noire in Hitler’s Willing Executioners) pointed out more than a decade ago, is that Goldhagen has shown a tendency in his work to claim to be blazing new trails in understanding when, in reality, his own views are not so far as he imagines from the conventional wisdom he so excoriates and about which he claims to be writing to correct and reform.
Further -
Worse Than War has some of this same reinvent-the-wheel quality to it. In fact, while Worse Than War is both long and turgid, it is rather less of an accomplishment than either its length or Goldhagen's claims for the work might lead the reader to assume.

As with his analysis of what he called German eliminationist anti-Semitism in Hitler's Willing Executioners and the Catholic Church's systemic culpability in A Moral Reckoning, in Worse Than War, Goldhagen again makes the sweeping claim that pretty much every government, institution and even most individuals have been unwilling to face the problem of genocide forthrightly and, more crucially, to understand its real nature. Enter Daniel Jonah Goldhagen, explanatory key and, in this case, institutional responses and policy solutions in hand. The man really does give self-love a bad name.

If Goldhagen was grandiose in his earlier books, the terms of reference he lays down in "The Choice", the stentorian title of his preface to Worse Than War, make his previous claims seem paltry by comparison ....

Unsurprisingly, in his own eyes he has succeeded brilliantly. In an afterword entitled "Thoughts and Thanks" — which is part self-promotion, part the conventional contemporary writer's boilerplate (thanks to nearest, dearest publishers, agents and institutions), and part childish score settling with critics and academic specialists with whom he has crossed swords in the past — Goldhagen claims to have "substantially recast our understanding of the phenomenon".
And on it goes.

11 December 2009

Australian judiciary

The Senate Legal & Constitutional Affairs Committee has released its 148 page report on Australia's Judicial System and the Role of Judges. The document is now attracting attention regarding recommendations on appointments to the bench.

In Recommendation 1 the Committee suggests that the High Court adopt a written complaint handling policy (which would be made public). The recommended timeframe for action is within 1 month of the tabling of the Committee's report.

As its second recommendation the committee suggests that all federal courts publish quarterly complaint-handling summaries on their websites. The summaries would record the number of complaints received, the date each complaint was received, the nature of the complaint, the date on which it was resolved and an indication of any action taken in response to the complaint. No personal details of the complainant or judicial officer would be identifiable.

In dealing with the contentious matter of judicial appointments (perhaps one of the more astute senators or their minders has been reading comments by Bede Harris) the committee recommends that when appointment of a federal judicial officer is announced the Attorney-General should publish the number of nominations and applications for each vacancy. If the government or department prepared a short-list of candidates the number of people on that list should also be made public.

Under recommendation 4 the committee suggests that -
the process for appointments to the High Court should be principled and transparent. The committee recommends that the Attorney-General should adopt a process that includes advertising vacancies widely and should confirm that selection is based on merit and should detail the selection criteria that constitute merit for appointment to the High Court.
It goes on to recommend that all jurisdictions set a nationally consistent compulsory retirement age for judicial officers, and encourages each jurisdiction to implement that standard within the next four years. At the next Commonwealth referendum section 72 of the Constitution should be amended to provide that federal judicial officers are appointed until an age fixed by Parliament.

It also recommends that by 30 June 2010 the Attorney-General develop and implement a protocol that provides "guidelines to federal courts for the appropriate use of short and long term part-time working arrangements for judicial officers", with that protocol being discussed at the first meeting of the Standing Committee of Attorneys‑General after 30 June 2010.

The committee recommends that the Commonwealth government establish a federal judicial commission, modelled on the Judicial Commission of New South Wales. The new body would have three functions: judicial education, complaints handling and assisting courts to achieve consistency in sentencing. Functions of the National Judicial College of Australia would be incorporated into the new judicial commission.

In Recommendation 16 the committee recommends that by 30 June 2010 the government -
* implement a federal process enabling it to establish an ad hoc tribunal when one is needed to investigate complaints of judicial misconduct or incapacity;

* establish guidelines for the investigation of less serious misconduct or incapacity issues; and

* implement the Family Court and Federal Magistrates Court proposal for an oversight committee.

Red, sweet and confusing

Mars Confectionary - the local arm of the US-based sweets & petfood conglomerate - has lost an appeal in the Federal Court over the decision in Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606 regarding alleged infringement under the Trade Marks Act 1995 (Cth) [here] and passing off under the Trade Practices Act 1974 (Cth).

Mars had claimed that the packaging and the name of 'Malt Balls' from competitor Sweet Rewards of represented passing off, misleading conduct, false representations and infringement of trade marks regarding its 'Maltesers' mark. Perram J, in the court of first instance, was unconvinced.

In a judgement that cited standard cases such as Conagra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159; (1992) 33 FCR 302, Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd (2004) 61 IPR 212, Reckitt & Colman Products Ltd v Borden Inc (1990) 17 IPR 1 and
TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43 Perram noted that "The marketing of Maltesers is a serious business reflecting the very large revenues at stake in the bite-size confectionary market in this country".

Mars criticised packaging of the 'Malt Balls' in jars with red and orange labels, claiming that -
first ... their distribution is unlawful because, broadly speaking, the jars wrongly suggest a connexion between the Malt Balls product and the Maltesers product which does not exist; secondly ... both jars represent to consumers that their contents are the same as Maltesers when, in fact, they are not; thirdly ... the use on the jars of a label with floating chocolate balls, some of which are sliced through showing a yellow filling, misleadingly suggests to consumers much the same thing; finally ... the jars infringe two registered trade marks owned by it.
In dismissing an appeal the court agreed that Maltesers are so well-known that consumers would not confuse the two products.

The judgement from earlier thgis year is worth reading for Perram's dry wit, some of the explanations ("During a slow part of the trial" one witness testified that a particular label was chosen because the others were "hideous"), and discovery of marketing of a chocolate-covered lentil with the name Cha-Cha. Beats chocolate-covered ants and cockroaches but I do hope that no-one is planning to give me a jar of chocky lentils for Christmas.

There was an old man named Lear ...

After a night preparing a lecture on the Foreign Acquisitions & Takeovers Act 1975 (Cth) I can't resist the following para from the DNB biography of economist Joan Robinson -
Joan Robinson was a fellow of the British Academy from 1958 to 1971. She was elected to an unofficial fellowship at Newnham College, Cambridge, in 1962 and to a professorial fellowship in 1965. She became an honorary fellow of Girton in 1965, of Newnham in 1971 when she retired from her chair, and of King's College, Cambridge, in 1979. A strict vegetarian, in her later years she slept all year round in a small unheated hut, open on one side, at the bottom of her garden at 62 Grange Road, Cambridge. In spring the tits would wake her by pecking at her long grey hair for material for their nests.
Nicer, I think, to be woken by your dog licking your hand but 'woken by nest-builders' (particularly if they sing while extracting your hair) is a good way to start the day.

On the subject of sleep (or lack of it, once you are chased by lawyers rather than small birds) I note Warwick Rothnie's post on Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2009] FCA 1163, in which Jessup J found that Chiropedic's design for a mattress and base was protected under the Designs Act 1906 (Cth) and had been infringed by some of Radburg's competing mattresses.

10 December 2009

Psycho skinhead stalkers on SNS

The latest Business Week features an irreverent take on hucksterism in the social network service (SNS) and Web 2.0 industry, the same industry that's so enchanted authors of the recent Commonwealth government Engage report.

I was struck by one item -
Skeptics can draw from plenty of examples of social media experiments run amok. Consider Saatchi & Saatchi's ill-fated promotion for the Toyota (TM) Matrix. Targeting young men, a demographic known to resist traditional advertising, Saatchi's social media team last year created a campaign based on the pranks of the popular MTV (VIA.B) show Punk'd. According to the plan, a prospective buyer of a Matrix would single out a friend to be the target of a prank. The promise: a bit of fear, a lot of laughs, and perhaps a groundswell of free marketing across Facebook, MySpace (NWS), and Twitter.
Can't have too much twittering, of course.

Business Week claims that
Amber Duick, one of the targets in the short-lived campaign, says she received a series of e-mails from a fictitious British soccer hooligan named Sebastian Bowler. He said he was coming to visit her and bringing along his pit bull. He had a MySpace page where he bragged about "drinking alcohol to excess" and participating in riots. One e-mail Duick received was a fake bill for damage to a hotel room wrecked by Bowler. He had left her e-mail address, the message explained, as his contact info. Duick filed a $10 million lawsuit in October and says that to protect herself from the oncoming Bowler, she slept with a machete by her bed. "She was terrified," says her lawyer, Nicholas Tepper.

In a statement, Saatchi and Toyota wrote that they would "vigorously defend against the claim," which is "entirely without merit." They said the plaintiff had granted "her permission to receive campaign e-mails and other communications from Toyota".
The Consumerist site adds some context -
Toyota's lawyers say Duick agreed to the prank when she filled out an online personality test sponsored by the company, but her lawyer says the agreement she clicked didn't mention anything about the nature of the prank.

Tepper, Duick's attorney, said he discussed the campaign with Toyota's attorneys earlier this year, and they said the "opting in" Harp referred to was done when Duick's friend e-mailed her a "personality test" that contained a link to an "indecipherable" written statement that Toyota used as a form of consent from Duick.

Tepper, said that during those legal negotiations, Toyota's lawyers claimed Duick signed the written legal agreement, which they said amounts to "informed written consent."

"So if [Duick] signed something, she's informed that she's signing 'A,' but in fact she's signing something else," Duick's attorney said. "It's written and it is consent, but you're not informed about the thing that you're actually signing up for? "It didn't say someone was going to be stalking my client. It was premised upon keeping my client in the dark, upon fooling her that these e-mails were real."
Toyota has reportedly explained how the 'prank' works -
YourOtherYou is a unique interactive experience enabling consumers to play extravagant pranks. Simply input a little info about a friend (phone, address, etc.) and we'll then use it, without their knowledge [my italics], to freak them out through a series of dynamically personalized phone calls, texts, emails and videos. First, one of five virtual lunatics will contact your friend. They will seem to know them intimately, and tell them that they are driving cross-country to visit. It all goes downhill from there. The Matrix integrates seamlessly into the experience and you can follow the progress of your prank in real-time online. Each piece of the campaign assures that the experience is as Google-proof as possible.


With brouhaha about proposals in Victoria for MPs to disclose the value and size of stakes in companies - rather than merely whether they have a stake - it is interesting to read the recent updated comparison by the national Parliamentary Research Service on legislature Codes Of Conduct (eg registers of interests).

The PRS' A survey of codes of conduct in Australian and selected overseas parliaments covers Australia (national and state/territory), United Kingdom, United States and New Zealand. It notes that -
In 2009, for various reasons, the conduct of ministers and members of parliament has been the subject of much media attention. The Australian and United Kingdom governments have conducted major reviews of entitlements paid to members of parliament. A number of Australian governments introduced codes of conduct for the lobbying industry to deal with the relationship between current and former members of parliament and the lobbying industry. ...

The development of parliamentary codes of conduct has varied in Australian parliaments. In some states, codes have been developed as the result of inquiries, for example in New South Wales (the Independent Commission Against Corruption and the Greiner/Metherell affair) and in Queensland (the Electoral and Administrative Review Commission, formed as a result of the Fitzgerald inquiry)

Four Australian parliaments (New South Wales, Queensland, Western Australia, and the Australian Capital Territory) have separate codes for ministers and members of parliament. All Australian parliaments have adopted registers of pecuniary interests and four (New South Wales, Queensland, Tasmania and Australian Capital Territory) have ethics or standards mechanisms.

Most Australian governments have introduced lobbyist registers and codes of conduct governing the conduct of lobbyists and have codes governing the post-separation employment of ministers.
The Age reports that -
Premier John Brumby yesterday said ''modernising'' laws governing the integrity of Parliament would be part of the Government's election-year agenda.

Under current laws, state MPs are required to list only the companies in which they hold shares but not the number of shares or their value.

The Labor-dominated Law Reform Committee, in a 160-page report tabled yesterday, says the value of MPs holdings could affect the extent to which they were influenced by them and was "likely to affect the community's perception of the member's conduct".

It recommends MPs be instructed to disclose which of their investments are worth up to $50,000, which are worth between $50,000 and $200,000, and which are valued at more than $200,000.

The committee calls for a new code of conduct to state that "MPs must avoid actual and perceived conflicts of interest".

It advocates a comprehensive rewriting of the Register of Interests Act and the introduction of increased penalties for breaches, including dismissal from Parliament in the most serious cases.
The Law Reform Committee's 198 page report regarding its review of the Members of Parliament (Register of Interests) Act 1978 (Vic) is here. The Committee recommends -
renaming the Act as the Members of Parliament (Standards) Act [and] also recommends a more contemporary approach to ethical standards in the Act. The current code focuses largely on preventing members using their public office for private gain. However, the Committee found the community now expects more from its elected representatives than just freedom from conflicts of interest. People value members of parliament who act honestly, with dignity and who are in touch with the community. The Committee has recommended a new statement of values which sets out important democratic values for members of parliament: serving the public interest, upholding democracy, integrity, accountability, respect for the different views and backgrounds of Victorians, diligence and leadership.

The Committee has also recommended a new code of conduct. It proposes modernising the rules on conflicts of interest and adding new rules on upholding democracy and respecting others regardless of background, handling personal information, using public resources appropriately and acting with honesty and respect.
To update the register framework it recommends change that focus on -
• the types of interests in the register — ... changes to clarify the types of interests members have to disclose in the register and to add debts to the list. It recommends members declare interests held by family trusts and companies. It also recommends excluding some interests that are unlikely to conflict with members’ public duties, including small interests

• the extent of information in the register — the Act requires members to provide limited information about their interests compared with some other parliaments. This makes it difficult to tell when a member does or does not have a conflict. The Committee recommends expanding the information required by the Act. However, it recommends members provide less information about residential properties for privacy and security reasons

• how often members update the register — the Act only requires members to update their interests annually. This means the information in the register can be out of date. The Committee recommends members should have to update their interests twice yearly and that the deadline for updates should be reduced from 60 to 28 days

• public access to the information in the register of interests — the Committee recommends the Parliament publish information for members of the public on its website about how to access the register and review arrangements for future public access.

09 December 2009

Glow in the dark

A feature of Maria Rentetzi's Trafficking Materials and Gendered Experimental Practices: Radium Research in Early 20th Century Vienna (New York: Columbia Uni Press 2008) is description of the fin de siecle 'radium craze'

Rentetzi comments that -
A very rapid expansion in manufacturing and consumer products that contained radium was one of the most dramatic phenomena of the early twentieth century. Radium cleanser, for example, was a sprayer that supposedly killed flies, mosquitoes, and germs as well as cleaned furniture, paintwork, and porcelain. Radium Enamel, manufactured by J. L. Prescott Co. of New York, was a radium product for shining metal surfaces, and Radium was a boot polish made in England by Radium Polishes Ltd. In Germany, chocolate bars containing radium were sold as a "rejuvenator." Radium-brand creamery butter, keyholes and chains, and toys and military equipment coated with radium flooded the market. A trade radium preparation called Nirama was used as a fertilizer to increase the speed of growth in potatoes, flowers, and other plants. ... At the 1904 banquet of the New York Technology Club, well-respected New Yorkers toasted with liquid glowing radium cocktails. Radium roulette, a New York rage, appeared the same year. Participants gambled and played with wheels, balls, and chips all layered with luminescent radium paint.
Consumers could buy radium bread and radium pastries made with radium water. What the promoter tagged as "biologically important" Doramad - a radium-enriched toothpaste - was supposed to increase blood circulation and strengthen the tissues of the mouth, with "its radioactive rays" providing "a new, pleasant, mild, and refreshing taste." I've written elsewhere about treats such as the Vita Radium suppositories ('soluble radium' in a cocoa butter base) and radium condoms for men's sexual rejuvenation, with the latter being promoted as "the best radium finest seamless male pouches ... guaranteed for one year" and the former marketed to "weak discouraged men" who could now "bubble over with joyous vitality". The radioactive corset - Shilouette Radiante - was claimed to have a "stimulating, even rejuvenating influence on the cells of the human body, aids fatigue, warms the body, and helps rheumatic pain".

The US$150 gold-plated Radiendocrinator for "sexual rejuvenation" - marketed as "the last word in scientific manufacture" - was worn as an athletic strap under the scrotum during the night. It comprised -
seven radium-soaked pieces of paper about the size and shape of a credit card, covered with a thin piece of clear plastic and two gold-wire screens placed in a beautiful, dark, embossed leatherette case.
Rentetzi notes that William Bailey, the father of the Radiendocrinator, was busy selling the Radithor tonic -
Produced by concentrated radium and mesothorium fluid diluted with distilled water, Radithor was packaged in half-ounce bottles and sold by the case of thirty. Between 1925 and 1930 more than 400,000 bottles were consumed by men who wished to restore their virility. One of the first victims of Radithor was Eben MacBurney Byers, a wealthy steel manufacturer from Pittsburgh and well-known sportsman and playboy who died of radium poisoning in 1932. At the recommendation of his doctor he averaged three bottles of Radithor a day for two years.
Mr Byers of course came to an untimely end after over-indulgence in chugging "perpetual sunshine in a bottle" and "a cure for the living dead".

A correspondent has naughtily gibed at other scientism, quoting Norman Vincent Peale's exhortation in A Guide To Confident Living ((New York: Simon & Schuster 2003) to -
Learn to pray correctly, scientifically. Employ tested and proven methods. Avoid slipshot praying.
ROFLMVFAO, as they say.

08 December 2009


Elizabeth Bernstein in the online Wall Street Journal of 3 December writes on 'The Dark Side of Webtribution': essentially 'getting even' by using the web.

That online revenge may, of course, involve identity offences and breach Australian or other defamation law.

Amog Bernstein's examples is that of "Jacquelyn Eschbach, an editor at a university in Philadelphia" (presumably the person of the same name with a web presence prior to the WSJ's disclosure and a post at the University of Pennsylvania).

Bernstein quotes Eschbach as saying "It's perfect for public humiliation" and goes on to report -
She should know. When she found out her husband was cheating on her last March, she logged onto his Facebook account, deleted all his privacy settings — allowing anyone to see his page — and created a new status update for him: "Moving back to my mom's because my wife caught me cheating with a woman from work."

Almost immediately, her husband's friends began sending questions, which Ms. Eschbach answered, acting as him. She named the other woman and explained that the affair had been going on for four years and had been carried on over lunch, sometimes at the woman's house, sometimes in a car. She asked if anyone had a room for rent. Finally, she disparaged his physical attributes, adding that "I am surprised Jackie stayed with me for so long."

"I wanted everyone to know what a jerk he was, and this was the easiest way to do it without saying it to each person's face," says Ms. Eschbach, 39 years old.

By the time she was done about an hour later, there were 55 comments from family and friends on her husband's Facebook page. Some asked if the status updates were true. Others, including his sisters, angrily criticized her husband and the other woman.

When her husband found out about it, he immediately changed his Facebook password. But he says he understood why she wanted revenge. (He also begged her forgiveness.) Now the couple is trying to work things out. Ms. Eschbach says she doesn't regret her online outburst, but sometimes feels embarrassed when she runs into people she knows and wonders if they are aware of her husband's affair.

"I'm fine with what she did now," says her husband, who asked that his name not be published. "It made her satisfied, and it was better than her slashing tires or doing something even worse that would get her in trouble with the law."
I confess to finding the account deeply problematical.

Irrespective of the errant husband's reported comfort regarding Ms Eschbach's response, embarrassment over whether people are aware of the affair seems at odds with global exposure in the WSJ (and consequent comment in blogs - such as this page - and other publications, some of which will remain accessible in the long term).

More broadly, appropriating a husband's persona as an act of 'webtribution' is, in my opinion, something that is both ethically and legally wrong. Don't put the family bunny or kitten in the blender. It's better to remodel the family car with a ball pein hammer.

The web might be "perfect for public humiliation" of the person who has wronged you but it is also perfect for self-immolation. Should people behave this way? One response is that people have a choice to do so. Should we engage in online critique of that behaviour? I am unsettled by conflicting answers to that question.

Throw away the keys?

After surviving the Law & Society conference in Brisbane - too much Lacan and other yesterday's weirdies, precursors of the Zizeks and Bhabhas of 2009 - I'm catching up on reading, starting with the acerbic Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation (Montreal: McGill-Queens University Press 2008) by Frances Widdowson & Albert Howard, Sex Offenders & Preventive Detention: Politics, Policy & Practice (Leichhardt: Federation Press 2009) by Bernadette McSherry & Patrick Keyzer, The Double Helix and the Law of Evidence (Cambridge: Harvard Uni Press 2009) by David Kaye and Down From Olympus: Archaeology & Philhellenism in Germany, 1750-1970 (Princeton: Princeton Uni Press 1996) by Suzanne Marchand.

Marchand might have added 'Philology' immediately after 'Archaeology', as her work centres on a fin de siecle battle of the books: were the burgers to parse lapidary prose or dig and delve for Attic marbles and Thuringian clay pots (with government funding to follow). I'd have preferred some comparative analysis, looking at for example the decline and fall of philology - classical or otherwise (Tolkien & Co going cow-eyed over Saxon or Middle English rather than Latin hexameters) - in France, the UK and US.

McSherry & Keyzer build their argument around three offenders, including Dennis Ferguson (whose crimes, media exploitation and ministerial jellyback inspired special legislation in NSW earlier this year). Some concerns regarding treatment of the odious Mr Ferguson have been highlighted in this blog, for example here; one doesn't have to like him in order to feel disquiet about legal populism.

Meanwhile the ABC reports claims that the United Motorcycle Council in South Australia has complained that SA police have given anti-consorting orders to all members of the Finks motorcycle club, an affinity group sometimes dubbed an outlaw motorcycle gang (OMG) or bikie gang.

The Council decries the orders - reportedly issued to every Fink, including those with no criminal record - as "another attempt to silence them". The orders, described as being in the form of letters, were hand-delivered to 46 members of the Finks. Their statutory basis appears to be the Serious & Organised Crime (Control) Act 2008 (SA), highlighted recently in this blog and shortly to be contested in the High Court after an adverse decision by the SA Supreme Court in Totani & Anor v The State of South Australia [2009] SASC 301.

The Council is reported as claiming that the orders make it illegal for club members to associate with each other more than six times in a year, whether electronically or in person. South Australian police confirm that some letters were sent (I have visions of earnest young constables chasing grim-looking bikies to hand over an envelope) and indicate that the bikies were only warned that they may be subject to criminal prosecution if they continue associating with each other. The letters reportedly explain the Act in detail and invite recipients to get legal advice.

Move away from the ABC coverage and there's a bit more nuance. The SA Police media release of lunchtime 8 December states that "Control Orders have not been served on members of the Finks Motorcycle Club". It goes on to indicate that
On Friday 4th December 2009, police provided notices to members of the Finks Motorcycle Club outlining the provisions of Section 35 of the Serious and Organised Crime (Control) Act 2008 (SOCCA). These provisions apply to Finks MC members as members of a declared organisation.

The notices set out:
- That police believe the recipient to be a member of the Finks MC
- That the Finks MC had been declared pursuant to the SOCCA Act
- That Section 35 creates an offence in respect of associating with a member of a declared organisation.

The notices also pointed out the exceptions listed in the Act and invited the recipient to obtain legal advice if they were in doubt about their position.

The provision of notices to members was to assist in the clear understanding of the application of the SOCCA legislation.
A spokesperson for the Council, in a nice display of street theatre, lamented that -
Some of us work together, some of us are godfathers and godparents, you know, we've got a Christmas show coming up this Saturday and basically that'll be getting cancelled which obviously is disappointing for the kids because Santa comes down and hands out presents to the kids each year, so very disappointing.
The children of such a philanthropic organisation are presumably tough enough to cope when Santa doesn't appear on his Harley with an underclothed female companion on the pillion.

07 December 2009


Having read JR Spencer's Evidence of Bad Character (Oxford: Hart 2006) on the way back from Brisbane I was interested to see today's SMH item on the death and deportation of Andrew Derek Moore -
Moore arrived in Australia from Scotland aged 11. Almost 30 years and a string of convictions later, Australia decided he had failed its character test and cancelled his visa.

On October 20, after a decade-long stretch in jail and immigration detention and despite serious health problems that were known to Australian authorities, Mr Moore was sent "home". Leaving behind a teenage son and his extended family, the 43-year-old recovering alcoholic was released at Heathrow Airport at 6am with $1000 cash, medication and a hotel booking. Two days later he was dead.

... Moore's death has shone a spotlight on Australia's practice of washing its hands of up to 70 people a year who are Australian in all but citizenship - and often seriously unwell.

Unlike the cases of Cornelia Rau and Vivian Alvarez Solon, they attract little sympathy because they are convicted criminals. Some, such as Robert Jovicic and Ali Tastan, have been allowed to return after being found destitute and ill living on foreign streets.

Others, such as so-called "one-woman crime wave" Patricia Toia, have strained diplomatic relations by allegedly committing crimes upon arrival in the country of their birth.
Moore had permanent resident status (rather than citizenship), a status that could be revoked and indeed was so by the relevant Minister. An appeal, in Moore v Minister for Immigration and Citizenship [2007] FCAFC 134, against the Minister's decision to revoke his visa - non-citizens essentially remain in Australia at the government's pleasure - and hence deport him back to the UK, was unsuccessful.

The failure of the appeal reflected Moore's criminal history, evident primarily in R v Moore [2001] VSC 115 and R v Moore [2002] VSCA 33. In the March 2001 judgement Justice Vincent in the Supreme Court of Victoria imposed a sentence of imprisonment for a period of nine years, with a minimum non-parole period of seven years. At the expiry of the custodial sentence Moore was transferred to the Immigration Detention Centre at Maribyrnong. He was subsequently deported.

The migration department has denied responsibility for his death, indicating that -
The Department made all appropriate arrangements for his return. The Government does not consider itself responsible for Mr Moore's untimely death and extends its condolences to his family and friends for their loss.
The Minister is reported as stating that 'he remains determined to deport foreign-born residents convicted of serious crimes, no matter how long they have been here', with around 70 people per year being deported for 'character reasons' (up to 40, including Ms Toia, back to New Zealand).

The SMH indicates that the offences are typically drug-related or involve property and theft crimes, armed robbery or assault, with offenders sometimes spending more time in immigration detention than in jail. It quotes Michael Grewcock of UNSW Law as commenting that -
in virtually all cases, multiple forms of additional punishment beyond those envisaged or sanctioned by the sentencing court are inflicted upon the prisoner. This not only has damaging individual consequences but also has the potential to undermine parole, risk assessment and the nature of the sentencing process as a whole.

Moreover, the operation of s501 [of the Migration Act 1958 (Cth)] allows for inconsistent and discretionary political interventions against unpopular and often very vulnerable prisoners.
Grewcock's recent 'Multiple punishments: the detention and removal of convicted non-citizens' is here.

Warm, wet and fuzzy

Blathering about 'the digital community' and 'government 2.0' often strikes me as having the same characteristics as a one-year-old's bunny rug ... warm, fuzzy and wet.

Tne national government's grandly-named and presumably well-intended Government 2.0 Taskforce has invited public comment on its draft report - Engage: Getting on with Government 2.0.

The 159 page Engage report [PDF] is a document that oh very surprisingly exhorts the national bureaucracy "to embrace Web 2.0 tools to deepen democracy and engage citizens".

A more appropriate title might have featured the word 'question', with taskforce members and their audience being encouraged to more actively question what we mean by 'Government 2.0' - often a digital potemkin village (lots of funky widgets and self-congratulation about 'engagement' through blogs, tweets and other online bling) behind which it's business as usual.

The central recommendation calls for an 'Open Government Directive' - someone's embraced the EU lingo - from the Government to treat official information as "a national public resource" that should be as freely and as openly available as possible. The recommendation is consistent with recent government statements on Freedom of Information and establishment of an Information Commissioner. Only a grinch, such as myself, would comment that the nitty gritty of closing National Archives offices is a tad grimmer and won't for example be fixed by a tweet or two.

The Directive would apparently result in public sector information being "released proactively" unless there are strong reasons not to do so, with what are described as "creative commons" licences inviting people to "quote, share and transform" without seeking official permission.

More of the same, alas, in the recommendation that government agencies and public servants use Web 2.0 tools "such as blogs, wikis and online fora" to "engage with citizens, each other and likeminded professionals around the world".

The Government 2.0 Taskforce Chair, Dr Nicholas Gruen explained that -
If Government 2.0 is realised, citizens won't just be consulted by government they'll actively collaborate with government.

Government 2.0 can draw all those with the enthusiasm, expertise and crucial local knowledge to collaborate in the process of government.

By using these technologies and effectively inviting the community into its workings developing policy and delivering services, Government 2.0 lets us improve the myriad ways government activities help our society, our economy and our democracy thrive.
And so-on and so-forth as we dance digitally to the big rock candy mountain.

The draft report indicates that
As we have seen during our work, as people engage, possibilities – foreseeable and otherwise – are unlocked through the invention, creativity and hard work of citizens, business and community organisations. The government’s job is to liberate much more of its information as a key national asset. ...

Everything, from enabling data to be re-used, to forming and participating in online communities in their areas of interest will help build a public service that is smarter, more responsive, more strategic and personally rewarding
And of course -
We have little to lose, and much to gain from moving boldly in this direction. Ultimately, the invitation to engage is an invitation to get involved and get things done. This requires us to accelerate the policy, organisational and cultural changes needed so we can reap the rewards of Government 2.0
Onwards, cybercomrades, to the digital millennium, where we'll all be hip, rich and wrinkle-free!

The draft report is replete with shibboleths such as "info-philanthropy" and "the vibe- the culture of Web 2.0", "intrinsic motivation and the meritocracy of contribution", "hack, mash and innovate!"

Strip away the jargon, however, and much of the report is the traditional connectivity wet dream - we'll all come together, as one, with inter-office video - and an iteration of the expectations (even the mechanisms, such as a simplified whole of government metadata set) articulated in reports under the auspices of the Hon Barry Jones nearly three decades ago. Brave, self-consciously - or just self-congratulatorily - visionary, a fine romp for those involved (and those in need of a headline now that people are bored with the ascension of the Mad Monk) but ultimately going nowhere? Who now remembers the Commission for the Future or the Australia As An Information Society report. For all the derision directed at Mr Jones, the reports released by the Commonwealth government around 2000 (remember the end-of-history/economic-cycle and friction-free-economy fever) were equally zany.

I'd be more impressed if the report offered a sceptical comment on claims from the likes of Kevin Kelly ("internet searches generate total economic value of somewhere between 0.5 and 5% of US GDP") and uncritical restatement of hype such as Web 2.0 means that "A cancer patient can find others in the same predicament and, in addition to gaining mutual support can share information about drug reactions, doctors and specialists". (Quite, and they can order some magic water and an alfoil beanie or two while they're online.)

Hardheaded appraisals of blogging seem to have slipped by some of the report's authors, judging by statements such as -
Blogs permit rapid and highly informed discussion of all manner of subjects. One benefit of this is the rapid identification of those with the knowledge to speak authoritatively on a subject, however arcane. This potentially 'turbocharges' the process by which reputations are forged and authoritative insights are arrived at and disseminated.
Drink, drink, the digital kool-ade.

Meanwhile, in the UK the national government - now smellier than the Govt 2.0 Taskforce - has released another set of 'e-government' policy proposals, this time labelled Smarter Government [PDF].

A "commitment" on "public data principles" (public data being "government-held non-personal data that are collected or generated in the course of public service delivery") indicates that public data -
will be published in reusable, machine readable form; will be available and easy to find through a single easy to use online access point (www.data.gov.uk); will be published using open standards and following the recommendations of the World Wide Web Consortium ... more public data will be released under an open licence which enables free reuse, including commercial reuse; Data underlying the Government's own websites will be published in reusable form for others to use.
Of course there is a "commitment" (yes Minister) to "radically opening up data and promoting transparency", with an explanation that
Entitlements guarantee access to and quality of services, and digital technology enables more services to be joined up and online. It is equally vital to use new technology to harness people's appetite and ability to drive up service standards. In the past, much public service improvement was driven by the force of government targets set by central government. In the future, much more of the pressure for improvement can come from the local level.

Ultimately, a more informed citizen is a more empowered citizen. In a modern democracy citizens rightly expect government to show where money has been spent and what the results have been. With the interactive capabilities of the web, government can offer citizens and communities the chance to pass comment on services in real time.
The shining example of that comment is dobbing in graffiti by SMS.

Later this week the US national government will be launching its "comprehensive Open Government Plan", promoted as
furthering the President's commitment to increasing transparency and accountability in Washington and ensuring greater access and information for the American people.
The launch will be undertaken by "US Chief Information Officer Vivek Kundra and US Chief Technology Officer Aneesh Chopra" and of course feature a webcast.