09 January 2010

Echo chambers, anxieties and IP

The global echo chamber known as the internet is chattering over claims that Starbucks has been asked (and in some accounts has agreed) to pay Mexico's national government for "intellectual property rights" regarding the coffee chain's use of pre-Hispanic images on a line of coffee mugs.

If you believe the reports - there's nothing on the Starbucks site (which I note has a 'rumour response' section) - the Mexicans are claiming some sort of rights regarding reproduction of the Aztec calendar stone and the Pyramid of the Moon from the pre-Aztec ruins of Teotihuacan. Starbucks appears to have made and used a stylised representation rather than infringing copyright through unauthorised use of a photograph or drawing commissioned/owned by the government.

Unless there is special statutory protection in Mexican law (effective, of course, only within the Mexican jurisdiction) making an image of the stone and using that image on a commercial basis would appear to be permissible. It certainly wouldn't breach Australian or US copyright law, as the subjects of the images are well out of copyright. The vagueness of the reports means that it is impossible to tell whether the "government archaeological agency" is asserting that Starbucks has breached a trade mark regarding the stone and pyramid. Confusion reigns.

The reports are similar to the kerfuffle in December 2007 over reports that Zahi Hawass (the Egyptian counterpart of Steve 'Crocodile' Irwin) was seeking copyright protection for pyramids, scarabs and indeed every other pharaonic artefact. Hawass is the high-profile head of Egypt's Supreme Council of Antiquities. The proposal, which unsurprisingly appears to have died, would reportedly have required payment to that Council of a fee for 'replicas' of artifacts. Construct a pyramid-shaped building - in Sydney, London, Beijing or Las Vegas - and the cash register in Cairo would supposedly go kling.

In reality the insistence in international copyright law and Australian law, such as the Copyright Act 1968 (Cth, ) on protecting expression rather than idea and recognising national jurisdictions means that the Council would not have been impose a fee on Australian replication of a 'four-sided pointy thing', a generic scarab or faux pharaonic bling. The finite duration of protection under Australian copyright law also means that Hawass' ambitions are at best problematical.

Sceptics, such as myself, commented that his announcement momentarily grabbed media attention, was presumably useful in legitimising the Council's authority (or merely deflecting criticisms of Hawass) and underpinned Egyptian empire-building in international fora such as UNESCO. Arguably it wasn't an effective response to museological and archaeological challenges in Egypt, a jurisdiction that teeters on being a failed state, and it displayed - deliberately or otherwise - a misunderstanding of copyright and international law.

It may indeed have been counter-productive, akin to responses to claims in Australia several years ago by Indigenous people who asserted a "copyright" in the idea of 'kangaroo' or sought a ban on females playing the didgeridoo (the latter on the basis that use would result in sterility or worse).

Dr Mark Rose of the Victorian Aboriginal Education Association was thus reported as commenting that HarperCollins had committed "an extreme faux pas" by publishing a chapter on didgeridoo playing in its 2008 Australian edition of British bestseller The Daring Book for Girls -
I wouldn't let my daughter touch one ... I reckon it's the equivalent of encouraging someone to play with razor blades. I would say pulp it. ... The didgeridoo is definitely a men's business ceremonial tool. We know very clearly that there's a range of consequences for a female touching a didgeridoo. Infertility would be the start of it.
Indigenous author Dr Anita Heiss was reported as saying she would not "even pick up a didgeridoo".

Some Indigenous people disagree with that view, a disagreement highlighted in for example 'The ongoing debate about women playing didjeridu' by Karl Neuenfeldt in 1 Australian Aboriginal Studies (2006) 36-43 [PDF]. HarperCollins on the other hand announced that it "apologises unreservedly to any Aboriginal Australians who were offended by the inclusion of instructions on how to play the didgeridoo in the forthcoming publication. HarperCollins will replace this item when the book is reprinted as clearly we had no intention to offend."

Starbucks wants to do business in Mexico and will presumably, as the reports go, be "working with Mexico to resolve the issue as quickly as possible", irrespective of the niceties of Mexican trade mark, copyright or sui generis cultural protection law.

Meanwhile the estate of scifi author Philip K Dick – certified as great through inclusion in The Library of America but on occasion just certifiable - is reportedly planning to "sue Google" over the search giant's decision to brand its mobile phone as the 'Nexus One'. The suit will supposedly be based on claims that the brand 'exists' in Dick's work, although observers have noted that neither Dick nor his family registered 'Nexus' as a trade mark. The Dick estate will presumably have to argue that Google is trading off the goodwill associated with the Nexus 'replicants' in Do Androids Dream of Electric Sheep. Replicants? They're ones that burn so brightly but not for very long and have unpleasant habits such as squashing your skull or removing your eyeballs ... not quite the association I want for my phone.

His daughter told the NYT last year that she was "shocked and dismayed" (s&d is so much better than dancing with glee to the bank) over reports that Google would use the Nexus name. "We were never consulted, no requests were made, and we didn't grant any sort of permissions", perhaps because Google didn't think it needed to consult the keepers of the flame, given its claim that the word is being used in the generic sense of where things meet.

A quick surf indicates that 'Nexus' is in use elsewhere, for example the Nexus Program "designed to expedite the border clearance process for low-risk, pre-approved travellers into Canada and the United States". One writer rather charmingly explains that -
Our neighbor to the north is conveniently located, but getting across the border can be anything but convenient. Americans who frequently travel to Canada should apply for a Nexus pass to expedite the border crossing process. Nexus member benefits include automated entry through self-serve kiosks at the airport, dedicated traffic lanes to shorten the wait time by land and a simple call to officials to get through by boat. A membership is valid for five years.
Quite, and there's no problem with being terminated by a Bladerunner when your five years are up.

Gender and the law

A nice example of judicial expectations regarding gender and the legal profession in Bradwell v. The State, 83 U.S. 16 Wall. 130 (1872), replete with treats such as -
Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother
Ms Bradwell was seeking admission as a lawyer in Illinois, considered by some to be contrary to "the law of the Creator".
The claim that under the Fourteenth Amendment of the Constitution, which declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that state, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.

It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state, and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

The humane movements of modern society, which have for their object the multiplication of avenues for woman's advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things, it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the state, and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

08 January 2010

Money money, money

The Report of Review of Commonwealth Legal Services Procurement, released today, considers use by national government agencies of inhouse legal practice units and commercial specialists

The 94 page Report [PDF] is a delicious example of bureaucratic ambiguity, with something for all the major stakeholders to fight over.

It comments - no prize for savage insights - that "managing legal risk is among the most challenging tasks faced by any enterprise, including government" and that
"in general, there is inadequate attention, and a lack of strategic direction, in relation to the management of legal services across the Commonwealth". Demand for legal services has increased significantly and is "unlikely to reduce". Yes, the sun will rise and set each day. What's the basis of that demand? It's influenced by "the volume of legislation, significant changes to administrative law, moves by the Commonwealth to a 'free-market' economy and ... the resultant growth in regulatory authorities, decentralisation of legal services [supposedly reflected in "improved responsiveness of providers"], greater accountability placed on agencies ... It is also influenced by -
the increasing development of a 'rights' orientation within Australian society generally, and the related development of well-informed and well-funded community and commercial bodies able and willing to challenge government actions.
One might expect that acquisition of legal services, as a 'big ticket item' (ie millions of dollars feeding the big law firms) would be tracked and analysed by the national Attorney-General's Dept. Alas, not so. The report comments that -
despite recent initiatives which have improved the quality of the data collected by the Attorney-General's Department, there is no reliable data on either the demand for, or the cost of, legal services across the Commonwealth. There is no reliable data on the cost to the Commonwealth of agencies calling for and evaluating tenders for legal services, or to service providers in responding to requests for tender. Anecdotal evidence, however, suggests that the total costs to agencies and service providers are substantial. ... data collected by AGD on the costs of legal services for the past four years almost certainly understates the true costs of providing those services.
The Report suggests that -
The most significant development in recent times has been growth of large, and increasingly professional, in-house practices, particularly in the larger agencies. While it is evident that some in-house practices are well managed and efficient, there are no standards against which to measure performance between agencies or against broadly comparable external legal services providers. There are no accepted service-wide measures against which to assess whether agency practices are appropriate or efficient, or that staff are appropriately qualified or relevantly trained and experienced, in relation to the levels of responsibility required of them in providing legal services. While there have been numerous attempts to measure costs, there is nothing against which to measure the value of legal services, although each agency head is responsible for assuring themselves that the value of legal services is commensurate to the expenditure.
So, we don't know how much money's being spent and whether that money's being spent effectively. Never fear, the authors of the Report conclude that savings are achievable -
Despite the fact that some agencies have already made significant savings from legal services spending by contributing to agency savings targets and are managing the role effectively, there are further savings that can be made across the Commonwealth. Those savings will largely depend on the more effective management of in-house practices; in particular, on the further development of in-house informed purchaser skills and closer cooperation between agencies.
However, don't hold your breath -
We have found nothing to support any view that significant savings can be sensibly achieved ... in the short term. The imposition of additional arbitrary cuts to running costs targeting legal services would expose the Commonwealth to considerable additional risk.
The response seems to be to adopt a 'more of the same' model -
In-house lawyers within Commonwealth agencies need to be professionalised – that is, to be organised, managed, supervised and trained as in-house lawyers, both in order to improve service delivery and to improve the procurement, management and cost control of externally sourced legal services.
Cue sound of trumpets, as consultants march onto the stage.
professionalisation of in-house practices would be facilitated by the establishment of an Australian Government legal service network, and the network in turn would assist in developing and implementing a coordinated and strategic approach to the management of legal services across the Commonwealth.
Some agencies - whether because they are big & recalcitrant or merely because they are already "effectively managing relationships with external legal service providers" - will presumably left alone when any network is constructed. Bureaucratic imperatives are reflected in the comment that -
Although it is already happening to some extent there is greater scope for agencies, particularly but not exclusively smaller agencies, to make use of the legal services arrangements of large agencies (that is, to piggy-back). There is a strong case for greater coordination of the provision of legal services across the Commonwealth, particularly through centralised support for the professionalisation of in-house practices and for development of informed purchaser skills within agencies.
Outlier agencies such as the Australian Institute of Criminology may be ever so politely encouraged to make sacrifices so as fund the increased supervision by the Attorney-General's Department, which will presumably draw on outside expertise. Never fear, there's always the web. The Report chants the usual digital mantra, indicating that -
There is a need for a better system, such as the web-based Commonwealth legal services interface canvassed in this report, to provide coordinated support both to the role of the informed purchaser and the collection and management of data.
Most reports are ambit claims, and this one is no exception. It comments that -
The independent and uncoordinated development of in-house legal practices has been a major factor in the erosion of the role of the Attorney-General as the First Law Officer, and as such, responsible to Cabinet for ensuring the provision of appropriate legal services across the Commonwealth.
The authors modestly suggest that "a central role" for the Department is appropriate, implicitly requiring an articulation of the Department's authority and the acquisition of "the necessary management and technical skills", reflecting an assessment that
Despite the relevant recommendations of the Logan Review, the wider functions ["critical to the provision of effective legal services across the Commonwealth"] intended for AGD related to the provision of general guidance have never been adequately resourced either in terms of numbers or relevant skills.
.In anticipation of the response, the Report reiterates that -
The current system of agencies individually tendering for legal services is very costly both to the Commonwealth and to external service providers tendering, particularly to AGS which has little effective option but to tender for all Commonwealth work. Even under existing instructions and guidelines there would appear to be more efficient and probably cheaper procurement options. Those more efficient options would not remove from agency heads the responsibility for ensuring that the legal services procured were appropriate to the needs of their agency and represented value for money.
In releasing the Report the Attorney-General stated that "growth in Commonwealth legal expenditure" declined "from 25 per cent in 2007-08 ($510 million) to nine per cent in 2008-09 ($555 million)" through improved transparency, common tender arrangements, increased competition by legal service providers and use of alternative dispute resolution in place of courts.


Two points of entry to the inferno on the NYRB site - a review of Louis Ferdinand Celine, complete with his widow's use of copyright law to restrict republication of some of the author's more scabrous antisemitic ravings, and a pointer by David Kaiser & Lovisa Stannow to the US Bureau of Justice Statistics Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 report by Allen Beck, Paige Harrison & Paul Guerino.

The 49 page report [PDF] presents findings from the first National Survey of Youth in Custody (NSYC), representing 26,550 adjudicated youth (91% male; 9% female) held nationwide in state-operated and large locally/privately operated juvenile facilities. A point of reference is provided by the 276 page report [PDF] by the National Prison Rape Elimination Commission under the federal Prison Rape Elimination Act of 2003, which notes that over "7.3 million Americans" are "confined in correctional facilities or supervised in the community, at a cost of more than $68 billion annually". 4.5% of adult prisoners surveyed reported experiencing sexual abuse one or more times during the 12 months preceding the survey. It comments that -
Investigators were shocked by the age and size disparity between many of the youth involved. Youth as old as 18 were assaulting or coercing children as young as 12; children weighing as little as 70 pounds were sexually abused by youth outweighing them by 100 pounds.
Over 20% of inmates in juvenile detention were there for offenses such as violating probation, truancy, missing curfews or running away rather than violence. "Many suffer from mental illness, substance abuse, and learning disabilities."

Overall, the Beck et al study indicates that around 12% of youth in state juvenile facilities and large non-state facilities (representing 3,220 youth nationwide) reported experiencing one or more incidents of sexual victimization by another youth or facility staff in the past 12 months or since admission. About 2.6% reported an incident involving another youth; 10.3% reported an incident involving staff.

9.1% of females and 2.0% of males reported unwanted sexual activity with other youth. Youth with a sexual orientation other than heterosexual reported significantly higher rates of sexual victimization by another youth (12.5%) compared to heterosexual youth (1.3%). Among youth victimized by another youth, 20% said they had been physically injured; 5% reported they had sought medical attention for their injuries.

Youth who had experienced any prior sexual assault were more than twice as likely to report sexual victimization in the current facility (24.1%), compared to those with no sexual assault history (10.1%).

About 4.3% of youth (1,150) reported having sex or other sexual contact with facility staff as a result of some type of force; 6.4% of youth (1,710) reported sexual contact with facility staff without any force, threat, or other explicit form of coercion. Approximately 95% of all youth reporting staff sexual misconduct
said they had been victimized by female staff. (In 2008, 42% of staff in state juvenile facilities were female.)

Kaiser & Stannow note that -
The survey, however, was only given at large facilities that held youth that have been tried for some offense for at least ninety days. That’s more restrictive than it may sound. In total, according to the most recent data, there are nearly 93,000 kids in juvenile detention on any given day. Although we can’t assume that 12.1 percent of the larger number were sexually abused—many kids not covered by the survey are held for short periods of time, or in small facilities where rates of abuse are somewhat lower—we can say confidently that the BJS’s 3,320 figure represents only a small fraction of the juveniles sexually abused in detention every year.
They subsequently comment that -
In essence, the survey shows that thousands of children are raped and molested every year while in the government’s care — most often, by the very corrections officials charged with their rehabilitation and protection


In writing about identity and legal taxonomies I was interested to encounter today's SMH article about the Perth doctor who -
will have to go without his prized $200,000 Lamborghini for four weeks after it was seized by police who say they caught his mechanic driving it 70 km/h over the limit.

The mechanic was allegedly clocked driving the luxury sports car at more than 160 km/h in a 90 km/h zone in Perth's east on Wednesday.

Dr Patrick Nugawela had left his car in the care of the garage where the mechanic worked.
Why worry about what happens to automotive bling? The SMH reports that -
Under Western Australia's anti-hoon laws, police can impound a car breaking the speed limit by more than 60 km/h, even if it is not the property of the driver.

The 2006 yellow Lamborghini Gallardo will be impounded for 28 days.

Dr Nugawela has hit out at the rejection of his application to have his car released, saying he had been persecuted for an alleged offence in which he played no part.

"I have basically been subjected to mandatory sentencing without trial," he said yesterday.

Police said they had not released the car early because the strict criteria of the anti-hoon laws did not permit it, unless the state police commissioner gave dispensation.

Police Minister Rob Johnson said the law acted as a strong deterrent to hoons and while he had some sympathy for the doctor, "he has to take it up with the garage owner".

"It's not something that I'm prepared to change the law for, simply because somebody who owns a Lamborghini does not have that car for 28 days."
It is a nice example of use of the category 'hoon', which has expanded from popular culture into law such as the Transport Legislation Amendment (Hoon Boating and Other Amendments) Bill 2009 (Vic), the Transport Legislation (Hoon Behaviour) Amendment Act 2009 (NT), Road Transport Legislation Amendment (Car Hoons) Bill 2008 (NSW) and Road Traffic Amendment (Hoons) Bill 2009 (WA).

What is a hoon? The proposed statutes typically do not provide an explicit definition. Associated explanatory statements are challenging. The explanatory statement for the NT Act thus refers to "drivers who engage in hooning and antisocial driving behaviour (prescribed driving offences)" and to "a hooning offence", the latter implicitly being antisocial driving behaviour. The Second Reading Speech for that Act indicates that -
During 2008, the government introduced a range of initiatives aimed at increasing the safety of Territory road users. These included introduction of drug-driving penalties, public transport passenger safety legislation, alcohol ignition lock legislation, and greater emphasises on road safety education in remote areas. However, it is apparent with our rising road toll that not people are getting the message, and our young people are particularly at risk. The incidence of antisocial driving, or hooning as it is most commonly known, has being recognised as a significant concern for all Australian state and territory governments. ... We have heeded these calls and now introduce legislation that delivers harsher penalties to those people who continue to hoon and present a danger to others on the road.
In 2008 the WA Government used the 'hoon meme', with a media release that noted state police -
now have the power to impound a hoon’s vehicle for up to four weeks under tough new laws that come into effect today.

Police Minister John Kobelke today launched a television and print advertising campaign to coincide with the introduction of amendments to the State’s anti-hoon laws and reckless driving penalties.

Mr Kobelke said the Road Traffic Amendment Bill 2008, which increased the period police may impound a vehicle involved in a hooning offence, was an important initiative in the Government’s crackdown on hoons and reckless driving.

“Since our anti-hoon laws were introduced in 2004, more than 2,800 drivers have been removed for acting recklessly on our roads for the safety of the public,” Mr Kobelke said.

“The latest statistics indicate that male drivers are the biggest offenders, with two-thirds of hoons being caught belonging to the 17 to 25-year-old age bracket.

“That is a worrying trend, especially as young people are over-represented in the State’s road toll. ... “These new amendments to the Bill will strengthen the deterrent to those who continually flout the law and drive recklessly, endangering their own lives as well as the lives of innocent people.”

So far in 2008, 802 vehicles have been impounded for 48 hours. Under the new laws passed in June, the period for a first offence will increase from 48 hours to seven days.

For a second and subsequent offence, police may impound a vehicle for 28 days, with the opportunity of applying to the courts for a permanent confiscation of the vehicle.

Additionally, the possible court imposed fines for reckless driving will increase from $1,000 to $2,000 for a first offence, from $1,200 to $3,000 for a second offence and from $2,400 to $4,000 for any subsequent offence.

The Minister said the legislation had also expanded the definition of road rage circumstances so that events that occur on places other than a road, such as private property or carparks were included.

“When the State Government announced its intention to crack down on hoons in February, we stated that we were aiming for the legislation to come into effect by August and we have successfully met that target,” he said.

“Labor is tough on hoons and will make sure that hoons lose their cars for longer.”
The theatrics of tougfhness are evident in a 2005 paper by Lisa-Marie Folkman on 'Queensland's Anti-Hoon Legislation and Policing Methods used to Prevent Hooning Behaviour' [PDF] and Glen Fuller's more nuanced 2007 'the Hoon: Controlling The Streets?' [PDF].

07 January 2010

Tweets from 1878

A friend has sent me the latest tweets from Alain de Botton, including -
'And what did you do today daddy?' Three paragraphs. And to think this might count as an honest living.

Good work only happens in the last 10 minutes of the day, when the fear of not accomplishing anything at last exceeds the fear of writing.

Writerly self-disgust: How rare to finish a day and think: I have worked hard and dutifully to the best of my ability. 1 day out of 20?
Lichtenberg and Kraus did 'the aphorism thing' so much better.

By accident I then encountered extracts from the Woodbury (Connecticut) Reporter of 1878. It reads as the Twitter of the steam age -
On the 18th Gordon Castle lost a valuable cow. She was bitten by his own dog some six weeks ago. The dog also bit his horse at the same time and tried to bite some of the family, then disappeared and has not been seen since. The cow had all the symptoms of hydrophobia in its worst form.

Mrs. Cyrus Wetmore fell into a cistern, which her husband had just finished digging to the depth of six feet. She was badly bruised but no bones broken. Fairchild Burritt lost a fine young cow to-day, choked with an apple.

... Roderick Atwood is at work on his new mill, dam and raceway. Minortown will have special facilities in the mill line. Two birth-days occurred on the 26th inst in one neighborhood. Mrs. Sally Hurd was 80 years old, and Mrs. Eli Peet 55.

Frederick Atwood met with an accident last week while riding on a load of corn fodder. He was driving on a side hill, the wagon ran over a rock, turning him over and sending him some distance down the hill. He is badly bruised.

Marcus D. Smith is sick with a combination of chills and fever - some thing new for this region.

W.A. Strong left at our office, yesterday, a bunch of ripe strawberries, picked in his garden. They were a novelty at this season, and were duly appreciated. ...

S.B. Scott has some Lawton blackberries which look like giants among the common varieties.

C.W. Mitchell and family are appending a few days at Sea View, West Haven. Mr. and Mrs. W.S. Seeley are sojourning at Mt. Washington. Frank Peck and Bartlett Terrill and their wives are disporting themselves at Milford point.

06 January 2010

Stone the CROs

A friend has drawn attention to an ABC news report on potential introduction by the South Australian government of 'Community Responsibility Orders', apparently another instance of the 'must be seen to be doing something so don't worry too much about legality or effectiveness' ethos evident in recent SA anti-bikie law.

The 'Young Offender Ban' Orders - which would seem to be modelled on ASBOs in the UK - might
allow courts to ban people from areas where they have committed low level crimes such as vandalism or 'hoon' driving. ...

The Attorney General Michael Atkinson says it will be similar to a restraining order on an individual.

"We do not want him hanging around in a gang drinking alcohol, swearing, littering, intimidating people say in a shopping centre, a railway station or a public transport hub," he said.
In the UK there has been disagreement about the effectiveness and appropriateness of 'anti-hoodie' orders as mechanisms for clearing venues such as "a public transport hub", punishing young offenders or (more usefully) persuading them to act with greater civility.

My skepticism is not lessened by reading the SA Attorney-General's comment that: "We want to publish his name and photograph to the local community whom he afflicts". Irrespective of wariness about stigma as a way of inducing attitudinal change among yobs, an immediate thought is that CROs in South Australia may be counter effective. In the UK some miscreants have revelled in attainment of an ASBO or two: getting the Order is a validation, an indication of masculinity or authenticity, and the more Orders the better if you are a serious knob-head.

Publishing the offender's name and image (why not publish his address so we can all go round and throw rocks through dad's window or publish her phone number so we can wake her up at 3am?) may reinforce the scariness of the offender. If you see the equivalent of a 'wanted dead or alive, guaranteed 100% bad egg' poster you may hand over your goodies without hesitation or just run for cover. Nothing like having the law reinforce the terrorisation.

In discussion elsewhere of the UK ASBO regime I've noted the 2006 UK National Audit Office report [PDF] - referred to by the UK Home Office here - that questioned the effectiveness of the Orders. It claimed that over 55% of those given an ASBO did not comply with the Order's conditions. 20% breached the Order more than five times.

The report noted that
Co-ordinators we spoke with suggested that a lack of capacity and experience of using anti-social behaviour legislation within local government legal services departments meant breaches were not always dealt with in a timely manner, frustrating the local community.
That is likely to be an issue in South Australia. As with the recent national Access To Justice strategy, it is easy for Ministers to gain media attention through releasing a positive policy statement. Good intentions are irrelevant if bureaucratic actors fail to support the initiatives, if there is no continuity in executive supervision (eg a new Minister takes over and allows his executives to rejig the performance metrics) and if there isn't a meaningful commitment of funds to put the grand words into effect.

The UK report also noted that -
The unwillingness of witnesses to give oral evidence at hearings for fear of reprisals was also considered a factor
One contact, who's had recurrent trouble in Canberra with an offender who "gets instructions from God via her toaster", commented to me last week -
My shop has plate glass windows. She has bricks. She has friends. When the police move her on she comes back. She's not going to be locked up unless she kills someone. We all know she's a problem. We can't do anything about it. Crazies aren't frightened of orders. They aren't frightened of the CCTV camera around the corner, even if it's working and even if someone's looking at it. The police aren't going to hang around 24/7 to see whether she comes to the city. Crime control isn't that simple.
It is unclear where the CRO legislation fits in with the Intervention Orders (Prevention of Abuse) Bill 2009 (SA) [PDF] that was introduced in state parliament on 10 September and passed on 1 December 2009. The curtain has risen meanwhile, on another act of justice theatre, with the comming into force of the Statutes Amendment (Property Offences) Act 2009 (SA).

That statute - promoted as abolishing "South Australia’s complicated cost-based penalty scheme" and giving "more authority to courts to consider the true price of vandalism and arson when determining a sentence" - provides for a maximum penalty of life in prison for arson, a penalty of seven years in prison for threatening to commit arson and a maximum penalty of 10 years in prison for other property damage. Anxieties about rational 'maniacs with matches' won't be allayed, presumably, by indications that the latest bushfires in WA are attributable to powerlines rather than arsonists.

05 January 2010

History is still over

One of my friends defines chutzpah using the example of the parricide who claims the mercy of the court on the basis that he's an orphan.

I thought of that when reading 'History Is Still Over' [here] by Francis Fukuyama - a dash of Spengler, a dose of Thomas Friedman, a splash of Ayn Rand - in Newsweek. It's an explanation of "how capitalism survived the crisis", reassuring presumably for devotees of the idea that history ended some time in the 1980s. That idea - as silly as many of 'new economy' dogmas that legitimised the dot com bubble - was expounded so much more eloquently by Sellar & Yeatman at the end of 1066 and All That A Memorable History of England, comprising all the parts you can remember, including 103 Good Things, 5 Bad Kings and 2 Genuine Dates.

"In the fourth quarter of 2008, global growth abruptly went into reverse, and the enormous edifice of globalization itself seemed to teeter." Business as usual, say many historians, which would account for "What is striking is how little about the pre-crisis world has changed".

04 January 2010

Social invisibility

Presentations from the 1 December 2009 Castan Centre symposium on Indigenous Birth Registration and Birth Certificates are now online.

They include copies of articles, in particular by Paula Gerber, and ppt slides (notably a set by Joel Orenstein).

Strongly recommended for people with an interest in the mechanics of identity, in Indigenous affairs or in justice.

03 January 2010


Reading Lynette Silver's Marcel Caux: A Life Unravelled (Milton: Wiley 2005), an account of Harold Katte's reinvention of himself as Frenchman Marcel Caux after unpleasantness on active service in the 1914-18 War.

Katte successfully adopted a new identity on return from the Western Front, conning the Veterans Affairs bureaucracy for about eighty years and having his second life 'unravel' at the age of around 100 when he was discovered to be one of the 'last diggers' (and hence appropriated by politicians and the 'repatriation industry'.

Katte/Caux had served in the trenches and is thus unlike impostors who've claimed financial benefits, military honours or merely public esteem to which they were not entitled ... often on an egregiously implausible basis.

One example was 'Major' Reg Newton, former junior vice-president of the 8th Division Association in Australia, who claimed a Military Cross and bar ("awarded ... for heavy action Laos"), service as a secret agent during the Cold War (setting up escape lines in East Germany in 1951, almost killed in Mongolia and wounded in Korea) and decoration by King George VI. Evidence emerged in 2006 that he was never a major, had not been awarded the Military Cross and indeed had never served overseas. Newton reportedly told acquaintances there were no records of his exploits and honours because his work was "top secret". Uh huh.

UK fantasist Alan McIlwraith was more inventive. He claimed to be Captain Sir Alan McIlwraith, CBE, DSO, MC, MiD: war hero, officer in the Parachute Regiment, top of his class at Sandhurst, an advisor to Supreme Allied Commander Europe General Wesley Clark and a terrorism expert who had served in Northern Ireland, the Balkans, Sierra Leone and Afghanistan. On exposure he blamed his fictions on "being hit on the head with a scaffolding pole by a gang of youths in the street". More recently he has been reported as having passed himself off at Strathclyde University as a millionaire property developer and charity worker, supposedly harvesting personal information such as National Insurance numbers from credulous students.