01 October 2010

Teaching, Discrimination and Crim Convictions

The Australian Human Rights Commission has found that decision by the NSW Department of Education & Training to refuse employment to a teacher applicant with a criminal record constituted discrimination under s 31(b)(ii) of the Australian Human Rights Commission Act 1986 (Cth).

The Commission's Report into Mr KL v State of NSW (Department of Education) [here]  followed a complaint to the national Human Rights &Equal Opportunity Commission (now the Australian Human Rights Commission) by 'Mr KL'. He had criminal convictions from 1983 up until 1992, for which he had spent a total of eight months in prison.

KL had no criminal convictions recorded from 1992 onwards. In 1983, aged 21, he was convicted of smoking Indian hemp. In 1986 he was convicted of offences including the possession of illegal drugs (marijuana and amphetamines), illegal use of a motor vehicle, attempting to break, enter and steal, driving in a dangerous manner and resisting arrest. He served a total of eight months. In 1991 he was convicted of larceny (shoplifting) and failing to appear, for which he received fines. A year later he was convicted of further offences involving self administering of a prohibited drug, dishonesty and stealing.

A principle in Australian law is that leopards can change their spots. Mr KL is described by the AHRC as having "rehabilitated himself and his life to the extent that he had completed a Bachelor of Music Education in 2003 and a Graduate Diploma in Education in 2006". He applied for a position as a secondary teacher in 2006 but was rejected by the Department of Education & Training following a criminal record check. The Department also rejected a recommendation made by an independent reviewer that he be given limited casual teacher approval for 12 months subject to review.

The Department has not disputed that KL was refused employment because of his criminal record. However, it disputes that the decision amounts to discrimination on the basis that Mr KL, in light of his criminal record, was unable to perform the inherent requirements of the position as a teacher.

AHRC President Catherine Branson indicated that -
As a result of my inquiry, I have found that Mr KL was discriminated against on the basis of his criminal record. The fact that the circumstances leading to Mr KL's period of offending no longer exist and the substantial changes he has made to his life since then, along with the steps he has taken to become an effective member of the community, were persuasive factors in my consideration.

It was also highly relevant to my determination that approximately 15 years have passed since Mr KL's last conviction.

The central dispute between the parties is whether Mr KL can perform the inherent requirements of the job.

I accept that being able to espouse the highest standards of conduct and integrity, and to demonstrate a commitment to upholding the standards expected by the community of teachers in NSW public schools, amount to inherent requirements of the job of a teacher.

In my view, the Department has failed to demonstrate a sufficiently 'tight correlation' between the decision not to offer Mr KL employment and the inherent requirements of the job.

It is difficult to imagine what additional steps Mr KL could have taken over this period of time that would strengthen the evidence of his rehabilitation and his commitment to making a contribution to society and to the education system.

I do not accept that a person with Mr KL's criminal record is necessarily rendered incapable forever of fulfilling the inherent requirements of the job of a teacher.
The AHRC has recommended that the State of New South Wales or the Department pay Mr KL $38,500 in compensation comprising amounts for hurt, humiliation and distress, loss of earnings and loss of opportunity. Under the Act that recommendation can be ignored by the state government.

the business of legal aid

Victorian Legal Aid (VLA) is implementing recommendations in the 108 page report [PDF] on its Criminal Law Fee Structure Review, concerned with payments to private practitioners in criminal matters.

The (VLA) report envisages movement to a 'whole of job' fee structure in the Magistrates' Court, replacing grants on an appearance basis. A single fee will relate to conduct of a whole summary crime case, regardless of when and how that case resolves.

'Non-complex cases' - those classified as taking approximately 6.5 hours of work - will attract a flat fee of $754. Complex cases (expected to require 13 hours of work) will attract a fee of $1508, with an additional $116 if the matter proceeds to contest. The expectation is that 25% of cases will be classed as complex.

The VLA indicates that it -
will increase fees to private practitioners in criminal cases for committal hearings, bail applications, Children's Court cases and County Court Appeals. VLA has also committed to indexing fees in these areas.

The changes are designed to target areas of the criminal justice system where changes to fees have the potential to improve the operation of the system without compromising the interests of legally aided clients and will be implemented no later than 1 January 2011.

The changes follow the release of the Criminal Law Fee Structure Review Report and will be implemented in close consultation with the Office of Public Prosecutions (OPP) and the court. For example, if counsel are to negotiate effectively with the prosecution after committal then OPP systems need to be able to accommodate that process. Similarly, it is important that these processes are supported by court processes and judicial expectations. We are continuing productive discussions about these issues in the lead up to implementation.
VLA notes that it -
initiated a review of its criminal law fee structure in early 2009 in response to a threat of withdrawal by private practitioners from undertaking legal aid work. Expenditure on criminal law approximates $56 million per annum. Total external expenditure associated with grants of legal aid for criminal law matters approximates $33.8 million per annum. Private practitioners assist 63% of legally aided clients in criminal law. The remaining 37% are assisted by staff practitioners. ... Private practitioner fees were last indexed in 2006 and 2007 by 2.5% and 2.4% respectively but have not increased since. In the past three years the real value of fees has been eroded by 9%, which is said to have contributed to the juniorisation of work, late preparation and concerns as to the quality of advocacy. ...

The review identified that the current fee structure does not appropriately incentivise early resolution and in particular, is not aligned with recent reforms to criminal procedure. Similarly, the current fee structure does not make appropriate allowance for complex cases, which may contribute to poor quality or inadequate preparation, as practitioners are forced to commit more time to a complex matter or client than that for which they are paid. A whole of job fee would be paid regardless of when and how a matter resolves. It would remove any suggestion of incentives for defence practitioners to delay proceedings. Under a whole of job fee it would be more cost effective for practitioners to resolve cases early rather than adjourn cases unnecessarily. This will in turn improve efficiencies in the criminal justice system and reduce court delays in cases finalising. Earlier appropriate resolution benefits accused people by limiting the time in which they are in contact with the criminal justice system. A whole of job fee would encourage flexible legal practice.

30 September 2010

With a whimper, not a bang

The Guardian reports that composer Keith Burstein has been unsuccessful in a bid to appeal his defamation decision in the European Court of Human Rights.

Burstein claimed that he was defamed in an Evening Standard review that said his opera Manifest Destiny made suicide bombers seem heroic. His litigation over that review, whe he argued implied he was sympathetic to suicide bombers, was unsuccessful. The UK court of appeal accepted the Evening Standard's argument that the piece was fair comment. Burstein was subsequently declared bankrupt after failing to pay pay the Standard's costs, estimated at £67,000, having failed to persuade the chief registrar that payment should be delayed until after an appeal to the European Court of Human Rights. His appeal to the ECHR claimed a breach of human rights on the basis that he was denied a jury trial.

The ECHR has declined to consider the case, stating that -
In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the court found that they did not disclose any appearance of a violation of rights and freedoms set out in the convention or its protocols.
Burstein is reported as commenting that -
I took the case to Europe but in Europe you have to prove your human rights have been breached and my submission claimed that the denial of a jury trial breached my human right to a fair trial. The judge examining the case has decided there was no 'appearance of violation of rights'. I do not know why this decision was reached and no reasons are given.

However, I was warned prior to Europe that in Europe there is not the reverence we have in the UK for jury trial and nor are the libel laws as robust as in the UK.

Therefore once the court of appeal had closed off the jury trial awarded by the high court and the case was left only to Europe as last port of call the chances were always slim.
Time for an opera about justice and juries?

28 September 2010

The Secret

From 'Fight 'The Power'' by Christopher Chabris & Daniel Simons, a review in the NY Times that debunks the supposed 'law of attraction' -
Rhonda Byrne’s new book, THE POWER (Atria, $23.95), is the sequel to THE SECRET, which has sold more than 19 million copies in more than 40 languages and created an entire industry of spinoff products. Both books offer a self-help philosophy based on the "law of attraction", which Byrne describes as a fundamental universal law akin to gravity. This was the “secret” of the first volume. In the second book - currently No. 1 on the New York Times how-to and advice best-seller list - it has been supplemented with talk of the “power of love.”

The law of attraction states that whatever you experience in life is a direct result of your thoughts. It really is that simple. If you think about being fat, you will get fatter. If you think about thin people, you will become thin yourself. If you think about your bills, you will get more bills, but if you think about checks instead, your mailbox will overflow with them.
Strangely enough, as I've noted elsewhere in this blog, the supposedly universal law is capricious - it doesn't seem to work in locations such as Auschwitz, Babi-Yar or Darfur. Presumably the targets of genocide didn't wish hard enough!
According to “The Secret” and “The Power,” your thoughts and feelings have magnetic properties and “frequencies.” They “vibrate” and resonate with the “universe,” somehow attracting events that share those frequencies back to their thinker.
Oops, that's sounding just like the Akashic Field.

The reviewers share my irreverence for such mumbo jumbo, commenting that -
“The Secret” and “The Power” deliver their wisdom in an ex cathedra voice reminiscent of the “Saturday Night Live” segment “Deep Thoughts.” And Byrne offers no scientific evidence for the absurd physics behind the law of attraction. But that doesn’t mean her books don’t take advantage of up-to-the-minute science. The problem is, it’s not the science she thinks it is.

The law of attraction has been around for millenniums; Byrne cites Plato, Galileo, Beethoven, Edison, Carnegie, Einstein and even Jesus himself as adepts. Just in the past century, it has been repeatedly expressed in essentially the same form as Byrne’s version by Wallace Wattles (“The Science of Getting Rich”), Napoleon Hill (“Think and Grow Rich”) and many other writers. Byrne’s idea of “the universe” plays the same role as Wattles’s “intelligent substance” or Hill’s “infinite intelligence” — a godlike agent that provides whatever we desire. Why is this particular pseudoscientific concept so persistent?
Their explanation is that the 'science' is about gullibility, not quanta -
The message of “The Power” and “The Secret” might best be understood as an advanced meme - a sort of intellectual virus - whose structure has evolved throughout history to optimally exploit a suite of weaknesses in the design of the human mind. Had Byrne and the other purveyors of “The Secret” (including Oprah Winfrey, who repeatedly plugged it on her show) set out to reap huge profits by manipulating cognitive biases wired into the brain, they could hardly have done a better job. More likely, they caught the virus themselves and are unwittingly spreading it as far as they can.

The first trick they use is what psychologists call “social proof.” People like to do things other people are doing because it seems to prove the value of their own actions. That is why QVC displays a running count of how many viewers have bought each item for sale, and why advice seems more credible if it appears to come from many different people rather than one. “The Secret” is peppered with quotations from a group of about 20 “teachers” or “avatars,” many of whom are themselves popular self-help gurus. In “The Power,” Byrne also quotes sages like Thoreau, Gandhi and St. Augustine. This ploy, an example of a related logical fallacy called the argument from authority, taps our intuitive beliefs so forcefully that we psychology professors spend time training our introductory students to actively resist it.

Byrne also activates what might be called the illusion of potential, our readiness to believe that we have a vast reservoir of untapped abilities just waiting to be released. This illusion helps explain the popularity of products like “Baby Mozart” and video games that “train your brain” and entertain you at the same time. Unfortunately, rigorous empirical studies have repeatedly shown that none of these things bring about any meaningful improvement in intelligence.
Oh dear.

They go on to note that -
“The Power” and “The Secret” are larded with references to magnets, energy and quantum mechanics. This last is a dead giveaway: whenever you hear someone appeal to impenetrable physics to explain the workings of the mind, run away - we already have disciplines called “psychology” and “neuroscience” to deal with those questions. Byrne’s onslaught of pseudoscientific jargon serves mostly to establish an “illusion of knowledge,” as social scientists call our tendency to believe we understand something much better than we really do. In one clever experiment by the psychologist Rebecca Lawson, people who claimed to have a good understanding of how bicycles work (and who ride them every day) proved unable to draw the chain and pedals in the correct location.

But ersatz theoretical physics has only so much persuasive power. Byrne also provides several bits of empirical evidence for her claims. For example, in “The Power,” we hear about an anonymous woman who left a long, abusive relationship and “never talked negatively about her ex-husband but instead gave only positive thoughts and words about a new, perfect, beautiful husband.” Sure enough, we are told, she soon met her “perfect and beautiful” new husband, and they now live happily ever after in Spain - which happens to be in Europe, the very continent the woman had dreamed of visiting!

The intuitive appeal of such stories illustrates the human tendency to see things that happen in sequence - first the positive thinking, then the positive results - as forming a chain of cause and effect. This is even more likely to happen when all the stories we hear fit an expected pattern, a phenomenon psychologists call “illusory correlation.”
They conclude, rather generously, that -
The powerful psychology behind these rhetorical tricks can distract readers from the larger illogic of ­Byrne’s books. What if a thousand people started sincerely visualizing winning the entire $200 million prize in this week’s Lotto? How would the universe sort out that mess? But it’s useless to argue with books like “The Secret” and “The Power.” They demonstrate an exquisite grasp of the reality of human nature. After all, the only other force that could explain how Rhonda Byrne put two books on top of the best-seller list is the law of attraction itself.

27 September 2010

Zepinic and the CV shuffle

The SMH reports that Vitomir Zepinic, arguably not the person you would want as your practitioner (and not merely because he is the subject of claims regarding war crimes), has been creative again with his certification. Ah, the joys of resume fraud!

The SMH indicates that -
An Australian man with criminal convictions for pretending to be a doctor has conned his way into a position at one of the most prestigious medical schools in Britain.

And despite being on a two-year-good behaviour bond, has continued the deception, telling an international war crimes tribunal he has a medical degree. For the past decade Sarajevo-born Zepinic has repeatedly lied to Australian authorities about his training and presented fabricated documents to medical boards. He has forged the signatures of other medical practitioners and created bogus references in his attempts to practise as a psychiatrist.
Earlier this year he featured in Zepinic v Psychologists Registration Board of NSW [2010] NSWPST 6 , an appeal to the Psychologists Tribunal over a decision by the Registration Board, ie the entity concerned with whether people can practice under the Psychologists Act 2001 (NSW).

The appeal followed Magistrate Burkell's decision in Burwood Local Court in July 2008 [PDF], with the court in Registrar, NSWMB v Vitomir Zepinic finding Zepinic guilty of six counts of falsely holding himself out to be a doctor (with inter alia the degrees of Bachelor of Medicine and Bachelor of Surgery) in breach of the Medical Practice Act 1992 (NSW). He was placed on a good behaviour bond, avoiding a prison term.

The SMH states that the Board thereafter -
undertook a long inquiry into Zepinic. Its discoveries were extraordinary.

Zepinic routinely lied, used forged documents, faked the signatures of other medical practitioners and made false declarations about his qualifications, investigators found.

The material was given to the Psychologists Tribunal of NSW. So appalled was the tribunal at Zepinic's "improper and unethical" conduct, last month it banned him from practising as a psychologist and said he posed "a significant risk to public safety".

"The level of dishonesty of [Zepinic] is remarkable", said the tribunal. Zepinic had demonstrated "he cannot be trusted to act in an honest and truthful manner" and was happy to lie "whenever it suited his purposes".

As well as lying about having a medical degree from Belgrade, the tribunal held that the document Zepinic used to claim he had graduated from the faculty of medicine of the University of Sarajevo was a forgery.
The SMH goes on to state that -
For years Zepinic has falsely claimed his medical degrees had been lost due to the war in his homeland. Using this excuse, he was able to work as a psychiatrist at Toowoomba Hospital for two years. In 2002 the Queensland Medical Board discovered he had no medical training.

He had earlier tried to secure a position as a psychiatrist with the Hunter Mental Health Services. However, the panel of doctors who interviewed him for the position said they were "seriously disturbed by Dr Zepinic's responses".

"He seemed not to understand the difference between benzodiazepines and antidepressants, [and] thought that Valium and Ducene were different substances".
He is in the news again over claims in the UK. He is reported as using "fraudulent documentation and references" in September last year, gaining a position as a senior lecturer in psychiatry within the Unit for Social & Community Psychiatry at Barts and the London School of Medicine and Dentistry.
Part of Queen Mary, University of London, the medical school is internationally renowned for its research and teaching, which makes it even more extraordinary that Zepinic's bogus qualifications were not checked.

It was not until February, five months into his job, that Zepinic's conviction in Australia was brought to the attention of the medical school.

On March 1, Zepinic was confronted about having lied on his application for employment and he was suspended. Later that day he handed in his resignation, effective immediately.

"Since his departure the school has conducted a review of their recruitment procedures to ensure absolute scrutiny of qualifications occurs at interview stage by the chair of the interviewing panel."
It's reminiscent of questions about vetting at Murdoch highlighted recently in this blog.

The SMH is unimpressed with Zepinic, a former Deputy Interior Minister in the government of Bosnia-Herzogovina and allegedly subsequent security chief in Republika Srpska (a breakaway Serb republic created during the 1992-95 Bosnian war, headed by Radovan Karadzic and busy with crimes against humanity). It commented that -
Zepinic's lies did not stop there. In January this year he was called as a witness for the prosecution at the war crimes trial of his former colleagues Stojan Zupljanin and Mico Stanisic.

Zepinic, who trained as a psychologist at the University of Sarajevo, was the security chief for the breakaway Serbian state headed by the alleged war criminal Radovan Karadzic. In 1992 he resigned and fled to Australia the following year.

When he gave evidence earlier this year, the International Criminal Tribunal for the former Yugoslavia was not told that Zepinic had a criminal conviction in Australia for falsely claiming to be a doctor. Instead he told the tribunal sitting in The Hague: "I am doctor of medicine, PhD degree". He also said he had finished his master's degree in medicine in Belgrade, obtaining a PhD in 1985.

However, the dean of the school of medicine at the University of Belgrade has confirmed to Australian medical authorities that Zepinic had never been enrolled in medical studies at the university. "He is not a graduate of the school of medicine in Belgrade, and he did not complete a specialist degree in psychiatry at the school of medicine, University of Belgrade.

26 September 2010

aether drinking

A reader has kindly pointed me to Anton Mesmer's description of animal magnetism, the aether that resembles the Akashic Field mocked elsewhere in this blog but embraced by practitioners of the pseudo-science belief system dubbed quantum mysticism.

Mesmer, now often placed in context with phrenologists and physiognomists, indicated that animal magnetism is-
a universally spread fluid; it is the means of a mutual influence between celestial bodies, the earth, & living bodies; it is continuous so as not to permit any vacuum; it is incomparably subtle; it is capable of receiving, spreading, & communicating all the sensations of movement; it is sensitive to flux & reflux. The physical body feels the effects of this agent; &, when it insinuates itself into the substance of nerves, it affects them immediately. One recognizes particularly in the human body, properties similar to those of the magnet. One distinguishes two diverse & opposed poles. The action & property of Animal magnetism may be transmitted from one body to another, animate & inanimate: This action operates from a distance, without the help of any intermediary body; it is increased when reflected by mirrors, communicated, spread, & increased by sound; this property may be accumulated, concentrated, transported. Although this fluid is universal, all animated bodies are not equally susceptible. There are some, albeit few, in whom the polar property is so strong that their mere presence destroys all the effects of this fluid in other bodies.

Animal magnetism may itself cure nervous disorders & be a medium for curing others; it improves the action of medications; it induces & guides crises in such a way that disorders can be understood & mastered.
Mesmer, writing in the 1780s, predated the radio and the alfoil beanie, thus being unable to understand Ervin Laszlo's pronouncement that - as part of quantum mysticism's intelligent design and the 'evolution' celebrated in World Futures journal (albeit an evolution that involves Mayan Calendar 2012 endism!) - some human brains are becoming "quantum field transceivers", apparently attuned to the infinite, able to both receive and transmit information to other brains and the Akashic Records. Not of course the most original of ideas for anyone who's looked at fin de siecle spiritualism and 1920s notions of brains as radios that could communicate with the spirit world (or radios that could communicate with the spirits).

locavore vampires

Looks like a very slow news day at the online SMH as it is running not one but two items on people who think that they are vampires.

One indicates that -
MORPHEUS knew he was a vampire from the age of three.

''When all the other kids wanted to be Luke Skywalker, I wanted to be Dracula,'' he said.

Morpheus, 34, a law student from Bronte who does not want his identity revealed, believes drinking blood will prepare him for a better afterlife. "I don't believe my body is immortal but I believe my soul is", he said.

"I believe that by drinking blood, I imprint my consciousness, so that in the next life I will remember who I am now."

He first tasted blood in primary school, having bitten a fellow student in a fight.

"It almost tasted like I had done that before", said Morpheus, although he now exclusively drinks the blood of women with whom he is romantically involved.
The 'imprinted on my consciousness' meme will go down a treat at World Futures. That journal has been happy to publish items claiming a hard basis for reincarnation, precognition and other nonsense that would delight Madame Blavatsky and other spiritualists, so perhaps we can look forward to an article from Morpheus on vampire science. Perhaps vampires - undead and using haemoglobin as a sort of USB - explain Ervin Laszlo's claims regarding "Communication with entities that are no longer living in the familiar form in this world but are alive nonetheless". (Such claims - unlike bats in the scholarly belfry - will not fly in the High Court but let us not allow legal realism to get in the way.)

Perhaps, of course, his desire for anonymity - it's such a shame that 'vampires' always have to camp it up with a moniker such as Morpheus - is attributable to the tale being a wind up rather than from fear Cardinal Pell will send a Dominican or two round to his coffin with a hickory-wood stake and a gallon of holy water. Is he indeed a law student?

Elsewhere in this blog I've been naughty, so very naughty, and asked why - if claims of levitation and materialisation are true - sundry gurus seem to restrict themselves to travel by Rolls-Royce or the first class cabin on major airlines, rather than just floating off into the aether and thereby avoiding the hassle of security checking at the airport. The item on Morpheus reports that -
Despite the resurgence of vampire tales in popular culture, Morpheus said it had not translated into an increase in ranks.

"I'm quite lonely; I used to have a circle of people but most of them moved to Melbourne - Sydney really doesn't have any vampires left", he said.
Poor dear. Life's tough when you are a vampire. If he is indeed undead rather than a dude with a tiresome taste in S&M can't he just flap his leathery wings and visit the other undead in Melbourne? Do vampires (or just kiddies who think that being a Goth or an Emo is so passe) have to be locavores?

He announces that "I'm more than happy to teach anyone who is interested about vampirism". Perhaps he's just happy to oblige a bored journo with a rather silly story. Law students and their wacky sense of humour.

Elsewhere the SMH reports that
VAMPIRES - and not just the pretty kind featured on big and small screens - are seeking fresh blood. ...

Researchers say the internet has provided a church for disparate individuals and groups across the globe to meet and cement new spiritual belief systems around traditionally "dark" mythical forces such as vampires and werewolves.

The University of Western Sydney's Adam Possamai, author of Sociology of Religion for Generations X and Y, has plotted the rise of "hyper-real" religions drawing on popular culture.

"People are becoming inspired by the characteristics of the vampire and see them as a source of fulfilling their potential and inner abilities", Associate Professor Possamai said.

Researcher Danielle Kirby used the "Otherkin", who meet in an online forum and believe they are partially or entirely non-human, to examine the phenomenon. In her paper, she found about 800 members of the Otherkin network, including those who identified as dragons, elves, vampires, fairies and angels. The internet had helped concentrate their underlying broadly neo-pagan beliefs, she said.

The online and secretive nature of many self-described vampires - some who profess to drink blood, others who consume "psychic energy" - make it difficult to pin down numbers but believers say there could be 300 in Australia.
Is there a difference between hyper-real and plain damn silly?