26 June 2010


The preceding post noted the federal Opposition's Contract With Australia, which features dogwhistles about "illegal" refugees, consistent with recent hyperbole from Opposition representatives who seem distressed about the few thousand people arriving in leaky boats from Asia but indifferent to the much larger number of people arriving via passenger planes from Europe and then outstaying their visas.

The Contract promises to "Enforce strict border security and control" -
The Coalition will maintain rigorous offshore processing of those arriving illegally by boat, reintroduce temporary protection visas (to deprive people-smugglers of a product to sell) and be ready, where possible, to turn boats back.
Calling King Canute?

A perspective on selective indifference is provided by a recent 20 page report from Amnesty International about Malaysia's treatment of refugees - Abused and abandoned: Refugees denied rights in Malaysia [PDF].

The report reveals a "litany of abuses suffered by refugees in Malaysia, the vast majority of whom are from Myanmar" and presumably chose not to be the children of English or Swedish professionals, study law at an EU university and come to Australia on an extended holiday. Such an omission is, it seems, an act of criminality. The AI report notes that refugees and asylum-seekers in Malaysia are subjected to arbitrary arrest, detention in "atrocious conditions", caning and human trafficking. It comments that -
Malaysia has consistently failed to ratify international standards that protect and promote the rights of refugees and asylum-seekers. It is not a state party to the 1951 UN Convention relating to the Status of Refugees or its 1967 Protocol, the major international instruments governing refugee protection. Similarly, it is not a state party to the:
• International Covenant on Civil and Political Rights (ICCPR);
• UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
• International Convention on the Elimination of All Forms of Racial Discrimination;
• International Covenant on Economic, Social and Cultural Rights (ICESCR);
• 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
The report notes that -
Malaysia effectively maintains that refugees and asylum-seekers do not exist in the country. There is currently no legislative or administrative framework for dealing with refugees, and Malaysian law makes no distinction between refugees, asylum-seekers and irregular migrants. Refugees and asylum-seekers have no legal right to work in the country. They do not receive any assistance from the government, and some resort to working without authorization just to survive. State officials have explicitly refused to recognize refugee rights. Malaysia actively penalizes those who are deemed in breach of its immigration laws. Refugees and asylum-seekers are subject to criminal penalties, harassment, ill-treatment, extortion, unnecessary and prolonged detention. ... All are considered to be illegal and are subject to the same penalties. Entering and staying in Malaysia without a permit (illegal entry) is punishable with a fine of up to 10,000 ringgit (US$2,915), imprisonment of up to five years and, since 2002, "whipping of not more than six strokes". The same punishment, including caning, applies to those who unlawfully re-enter or reside in Malaysia after they have been deported. Overstaying a visa is punishable by a fine and imprisonment on the same terms as illegal entry – up to 10,000 ringgit and five years – but does not include caning. The same punishment applies to those who enter or leave Malaysia other than at an authorized immigration control post.

The Malaysian Constitution provides that those who are arrested must be brought before a magistrate within 24 hours or released. However, non-citizens who are arrested for immigration violations may be held for up to 14 days before being brought before a magistrate. They are then transferred to immigration detention facilities, where they can remain for extended or even indefinite periods.
It suggests that a potential solution is the introduction of government ID cards for UN-recognized refugees.

A recent post by John Menadue on the ABC's Drum site comments that -
If Ben Chifley had responded only to populist prejudice, his government would not have accepted Jewish refugees after WWII. Malcolm Fraser would not have allowed large-scale Indochinese refugee programs in the 1970s and 80s if he had consulted only opinion polls. They both showed leadership in 'encouraging the better angels of our nature' as Abraham Lincoln put it.

Sadly an appeal to fear and xenophobia has been the more chosen route. Fear of the foreigner and the outsider is as old as human history itself. In Australia, we have a long history of demonising migrant and refugee groups. In 2010, we again have a thinly veiled appeal to racism and xenophobia, called 'protecting our borders'.

We need to correct the dangerous and wilful misrepresentation and misinformation about asylum seekers. In the longer term we need to revisit approaches that were successfully adopted in the 1980s by the Fraser Government.
Menadue goes on to suggest that we consider facts -
• Push factors, crises such as war and persecution, force desperate people to reluctantly leave their homes. When the crisis subsides, so does the people flow.

• As an island country at the 'end of the line', Australia does not have anything like the refugee flows that occur elsewhere. In 2009, Australia received 6,170 asylum applications. In the US it was 49,020, France 41,980, Canada 33,250 and UK 29,840 At the end of 2008, there were 42 million forcibly displaced persons worldwide, including over 15 million refugees. Australian exposure to asylum seekers is miniscule.

• Less than 2 per cent of Australia's migration intake comes from asylum seekers. Yet Essential Research reports that 10 per cent of Australians believe that half or more of our migrant intake were asylum seekers; 15 per cent said about 25 per cent and 13 per cent said about 10 per cent. Only about 18 per cent of Australians were close to the mark in saying only 1-2 per cent. The misinformation is working.

• The pattern varies, but the majority of asylum seekers come to Australia by air and not by sea. As the Australian Parliamentary Library put it: 'the vast majority of asylum seekers ... arrive originally by air (96 per cent - 99 per cent)'.

• Most boat arrivals who seek asylum are found to be refugees. Past figures show that between 70 per cent to 97 per cent of asylum seekers arriving by boat have been found to be refugees. This is far higher than for asylum seekers who come by air.

• Our exaggerated focus on boat people ignores the fact that there are about 50,000 illegal over-stayers in Australia. They are real illegals, unlike asylum seekers who are legally entitled to seek our protection whilst their claims are assessed.

Mere puffery, sir!

A friend has pointed me to Tony Abbott's Contract With Australia [PDF], a rather lame version of the US Contract With America -
This document contains my Contract for real action for Australia.

It comprises 12 realistic, modest and prudent election commitments that are achievable and deliverable over the next three years. I guarantee to take real action to deliver on these commitments because I believe that actions speak far louder than gestures, words and stunts. The Coalition will deliver on these commitments.
In contract law much of the document would be characterised as puffery ... we know that it is an airy nothing that is not legally actionable and the supposed guarantee is meaningless. Can you get your money (or vote) back if the Opposition Leader resiles from his promise? No. Claim damaqes for non-performance? Invoke protection under the Trade Practices Act (Cth)? No.

Contract item 10 - 'item' is presumably the preferred characterisation, rather than 'promise' (particularly as Mr Abbott's role model famously distinguished between core [ie 'real'] promises and the faux promise) - concerns CCTV.
Provide safer neighbourhoods.

The Coalition will work with local councils and police to ensure that more crime-prone areas have closed circuit TV (CCTV).
If only crime reduction was so simple, there were no concerns about fostering belief in technological silver bullets and no problems with the diversion of resources.

There is no reason to believe that deployment of cctv will necessarily increase public safety and reduce crime in neighbourhoods that are "more crime-prone" or merely in more neighbourhoods. Is the coalition proposing to fund monitoring by local government personnel - or by their agents in the private security sector - using cctv, given that safety involves more than installing a cam and hoping that someone remembered to start the recorder? What of the role of state/territory governments, given that police are state/territory rather than local government agencies? Where does private sector cctv fit in? And does 'cctv policing' (as distinct from, for example, more police on the street, especially on foot rather than in patrol vehicle drive-bys) substantially increase public safety? Will the states be requisted to ban the wearing of 'hoodies'?

The Opposition would be advised to look at studies such as 'Open-street CCTV in Australia: The Politics of Resistance and Expansion' by Adam Sutton & Dean Wilson in 2(3) Surveillance and Society (2004) 310 and Surveillance, Closed Circuit Television and Social Control (Aldershot: Ashgate 1998) edited by Clive Norris, Jade Moran & Gary Armstrong.

Cold hard facts about safety are, presumably, less significant than statements such as "We stand for taking real action, seeing things through and getting things done. We stand up and take responsibility for our election promises".

23 June 2010

Fastidious, soigne kittycats

Bennett J in Mars Australia Pty Ltd (formerly Effem Foods Pty Ltd) v Société des Produits Nestlé SA [2010] FCA 639 (on appeal from Effem Foods v Nestlé SA [2008] ATMO 55) has put aside the decision of the delegate of the Registrar of Trade Marks given on 30 June 2008 regarding Australian trade mark application no. 932937, with Mars - the petfood n chocolate conglomerate - gaining the colour trade mark for its products as "cat food and additives for cat food".

Fastidious, soigne kittens, to adopt the phrase of Dyson Heydon in one of his naughtier moments, will presumably rejoice.

Mars has been identifying its Whiskas cat food products using a shade of purple that was claimed as having been created "from scratch" (de novo, rather than with a tabby's claws) to brand designer food for cats.
It is used on all varieties of Whiskas cat food as the predominant colour of the packaging. It forms the background to all other material included on the packaging.
Mars sought to register that colour as a trade mark under the Trade Marks Act 1995 (Cth) for "Foodstuffs for domestic pets and additives for such foodstuffs", claiming that the mark satisfies the requirements of s 41 of the Act (ie capacity to distinguish). An official in IP Australia, acting as delegate of the Registrar of Trade Marks, considered that 'Whiskas Purple' was not inherently adapted to distinguish Mars' goods.

The Delegate noted that other traders used different shades of purple to identify varieties of cat food. The Delegate accepted that consumers would associate the colour with Mars' product but did not accept that consumers sufficiently recognised the colour to always distinguish Mars's goods from those of competitors and rejected Mars' claim that any relevant usage of Whiskas Purple would suggest an association with Mars. Moreover, the Delegate considered that it would "not remotely be tenable" to say that the proposed mark distinguished goods upon which it had never been used, such as other pet food, particularly dog food.

Nestlé opposed Mars' application to register the colour as a mark.

The current judgment states that -
Mars recognises and accepts that other traders have, before and after the priority date, used a form of purple on pet food packaging. While Mars does not accept that such use includes the use of colours that are very similar to Whiskas Purple, in my view there is evidence of such use. However, Mars emphasises that the use of a purple colour by other traders has not been shown to be trade mark use. It points out that, on the evidence, most use involves the use of purple on specific varieties within a product range to distinguish such varieties. It submits that other traders would not be likely without improper motive to desire to use the mark, or some mark nearly resembling it, upon or in connection with their own goods in any manner that would infringe the Mars mark ... Mars says that registration of Whiskas Purple does not destroy its primary use as a colour for trivial, descriptive or other non - trade mark use. It will not prevent non - trade mark use of the colour purple or a pink-purple by others, for example to indicate a particular variety in a product range.
It goes on to note that -
Mars points to the extensive evidence of the marketing of Whiskas Purple and of its use, which have served to establish the trade mark significance of the Whiskas Purple colour in the minds of consumers and the association between that colour and the Whiskas range of products. Further, there had been no previous use by Mars of such a colour. Mars had previously used blue on the packaging of Whiskas products. It adopted an entirely new colour as a trade mark and promoted it heavily from the outset with, as the evidence establishes, the clear intention of giving the colour a trade mark significance. The Act accepts (s 17 and s 6 of the Act) and the evidence establishes that a colour can function as a trade mark. Mars adduced expert evidence which supports its contention that Whiskas Purple functioned in this way at the priority date. As at the date of a survey conducted in May 2009, the evidence supports the submission that Whiskas Purple did function as a trade mark, a badge of origin by which consumers identified Mars’ goods in contrast to the goods of other traders. Mars relies on its use of Whiskas Purple as establishing that the colour in fact distinguished its goods so that it must have been capable of distinguishing them for the purposes of s 41(2) of the Act within the meaning of s 41(5) and, alternatively s 41(6). Mars submits that the Whiskas Purple colour itself has, by the use which has occurred, come to distinguish Mars’ goods.