04 December 2010


From the WSJ review of Douglas Coupland's Marshall McLuhan: You Know Nothing of My Work (2010) -
Like his fellow devout Catholic, J.R.R. Tolkien, media theorist Marshall McLuhan exerts a powerful fascination over certain adolescent minds. His catchphrase, "the medium is the message," encapsulates an intoxicating technological determinism; his prediction, in the 1960s, that electronic communication would create a "global village" makes him seem a seer. Novelist Douglas Coupland, himself a chronicler of technology and culture, seems never to have outgrown his McLuhan phase.

Inspired by perceived similarities between their lives—both are Canadians, from stern, Protestant, frontier stock—Mr. Coupland has written a short yet infuriatingly digressive biography of McLuhan. In broad outlines, he shows how a scholar of Renaissance literature turned his critical skills toward such topics as popular culture and television. Readers may be surprised to learn that McLuhan believed the effects of modern communication technology on society to be mostly malign. Old-fashioned to the point of medievalism, he predicted the end of print but was not at all pleased about the possibility.

... Coupland's biography exhibits the same flaws as McLuhan's own books. It is lazily researched: Describing major figures that a young graduate student might have encountered at Cambridge University in the 1930s, Mr. Coupland admits that "much of this information came from Wikipedia."

03 December 2010

Dr Muehlon, I presume

Amid brouhaha about Wikileaks, 'open secrets' and Julian Assange I'm reminded of outcry last century about Dr Wilhelm Mühlon (1878-1944).

Mühlon gained a PhD in law in 1904 and after posts in the German consular service was a director of the Friedrich Krupp conglomerate, concerned with war materials. He resigned from Krupp in late 1914, claiming to have freed himself "from the profession he loathed". In 1915 he became Special Commissioner of the imperial administration of the Balkans (ie representing the Wilhelmstrasse in Bucharest, Sofia, Vienna and Budapest regarding grain and oil negotiations). After ineffectual efforts to shape German policy through gatherings of uper-class liberals and litterateurs Mühlon migrated to Switzerland, from where, on 7 May 1917, he sent a memorandum (later published in France and Switzerland) to Imperial Chancellor von Bethmann-Hollweg "repudiating the German government and all its works".

In subsequent denunciations he drew on his diary and on a cache of Krupp documents, inevitably (given hysteria as the great Wilhelmine train crash proceeded) being denounced as a traitor, person deserving of assassination, a cad and otherwise a person of unsavoury habits.

During a Reichstag meeting on 16 March 1918 Franz von Papen characterised Mühlon as "pathological" and as a "neurasthenic who could not even come into a room if it contained a few gentlemen with whom he was personally acquainted". By June 1918 he was reported as having "bought a good deal of land and an old country house near Berne" and settled in Switzerland with his family, ignoring call-up for German military service -
Dr Muehlon has thought it best to remain in Switzerland, although by doing so he constitutes himself a deserter, and although the position of deserters in Switzerland is not altogether a pleasant one.
Somewhat more pleasant, of course, if you have a private income and are not parked in a wet trench with cadavers and rats while people try to kill you.

Mühlon published his 1914 diaries - Die Verheerung Europas: Aufzeichnungen aus den ersten Kriegsmonaten [The Devastation of Europe: Notes Written During the First Few Months of the War] - now a forgotten best-seller. He was reported as explaining that
Dr Muehlon did not intend to publish the diary until these statements were made about him in the Reichstag and now, when people read the book the world in general will be able to laugh at to scorn the notion that of a mentally unbalanced man having clear, direct, and logical a style ... Nothing appears more clearly from this diary than the fact that Dr Muehlon considers – for excellent reasons – based on fact, which he cites in detail – that Austria, her intolerance and lack of conciliation generally, were mainly responsible for outbreak of the war, and the individual most responsible for rushing Europe into it was the German Emperor.
Translations as The Vandal of Europe and as Dr Muehlon’s Diary promoted Mühlon as a successful businessman and as thinker who was "highly sensitive to moral considerations and placed moral values above material success".

Mühlon was in contact with - and often sponsored - figures such as Rilke, Hermann Hesse, Ernst Bloch, René Schickele, Hermann Staudinger, Annette Kolb and Hugo Ball. He was also in contact with 'opposition' inside Germany. In early 1919 he was invited to Munich by the Bavarian government and offered a ministerial post, which he sensibly declined, concluding that "the outlook seems so hopeless that he has decided to remain in Switzerland for the present". He remained in Switzerland until his death, being vilified in 1933 by the Nazis for financial support of the catholic Rhein-Main. Volkszeitung. By 1937 he was being denounced in German courts as "probably the biggest and meanest traitor that has ever been born on German soil" and, like the self-involved and unpleasant Mr Assange, was facing recurrent death threats. His diaries of the early 1940s - humane, perceptive, indignant - are a minor masterpiece that deserves to be better known.

The current significance of Wikileaks - as with Mühlon's revelations - is the consequence of disclosure and what responses to disclosure tell us about public perceptions of diplomacy and 'inner politics' rather than access to anything that's particularly new, exciting or disturbing. (That may change, of course, if future disclosures reveal the identity of informants in Afghanistan and elsewhere and put those people at risk.)

One contact commented to me that he inferred from reading the Economist and New York Times that Sarkozy has a thin skin and that the Karzai administration is riddled with corruption: no great revelations there. Paul Ginsborg and other scholars have indicated for over a decade that there are fundamental grounds for doubting the probity of Italian government: again, we didn't need Assange. Do Middle East states love Iran? Does Iran love them? Not much news there.

What is disturbing is the outrage, approaching hysteria, among some circles in the US - reminiscent of hyperbole about Mühlon - and the naivety, even irresponsibility, evident among fans of Wikileaks.

The Economist commented that -
It's telling that Mr Assange hasn't placed his servers in some technically capable autocracy with a desire to thumb its nose at the world, say Iran or Venezuela. He needs liberal democracies. Their laws guarantee the safety of his information. And when trying to solve what looks like a digital problem, the best path is to consider where the problem is physically vulnerable. Anti-spammers, for example, have finally notched up some successes in the last two years by going after server locations; spammers need servers in places like America, which has reliable networks and vast fields of vulnerable personal computers. But America also has laws, and ways to enforce them.

My gripe against Mr Assange is that he takes advantage of the protections of liberal democracies, but refuses to submit himself to them. If he wants to use the libel protections guaranteed by New York State, then he should live in New York, and commit himself to all of the safety and consequences of America's constitution. If he wants to use Sweden's whistleblower laws, then he should return to Sweden and let its justice system take its course. This, as we've written in the paper, is what distinguishes Mr Assange from Daniel Ellsberg. Mr Ellsberg did not flee America after releasing the Pentagon Papers; he stayed here and stood trial. Regardless of what you think about Mr Ellsberg's motives, he followed the basic tenets of civil disobedience: break a law, then publicly accept the consequences. Mr Assange just protects himself.

Julian Assange has created a legal structure that allows him to answer only to his own conscience. This is an extraordinarily clever hack of the world's legal systems. But it makes his pretense at moral authority a little hard to take seriously. And it also points toward a solution. If America feels threatened by WikiLeaks, then it should lean on its allies—Sweden, Iceland and Belgium—to strip the organisation of the protections it so carefully gathers as it shifts its information around the world. Mr Assange has suggested that he might be hounded all the way to Russia or Cuba. If he has to take all of his servers with him, it wil be harder for him to act so boldly.

02 December 2010

SMS Spam penalty

Australian telecommunications regulator ACMA has noted the $2 million penalty under the Spam Act 2003 (Cth) for the last respondent in Safedivert SMS spam scheme.

The Federal Court has today imposed $2 million in penalties against Scott Gregory Phillips in proceedings brought by ACMA regarding SMS spam, aka speam. That penalty is in addition to $22.25m imposed on seven other respondents last year in Australian Communications & Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 2) [2009] FCA 887, bringing the total penalties to $24.25m.

Phillips, along with the other respondents, was involved in a complicated scheme involving creation of established fake dating website profiles to obtain the mobile phone numbers of genuine dating website users. Those numbers were then sent messages from people pretending to want to chat via a 'Safedivert' service about meeting and forming a relationship. Users who were unfortunate enough to be tricked by that identity scam were charged approximately $5 per message, with ACMA alleging that the scheme cost Australian mobile users over $4m from late 2005 until November 2008.

Logan J, in delivering judgment, indicated that -
The conduct was undoubtedly deliberate. IMP and its agent Jobspy, which employed IMP's modus of operation, engaged in concerted deception. Mr Phillips' involvement in the deception was at the most senior level. He was the controller of IMP.
ACMA chair Chris Chapman commented that -
The size of the penalties awarded in this case are an indication of how seriously the courts treat breaches of the Spam Act, which is very encouraging.

In cases such as this where the conduct was calculated, deceptive and had a detrimental effect on Australian phone users, the ACMA will not hesitate to use every available avenue to protect the consumer. This prosecution again demonstrates the commitment of the ACMA to ensure that individuals and companies comply with the Spam Act.

01 December 2010


From Fred Inglis' A Short History of Celebrity (Princeton: Princeton University Press 2010), a sort of Limburger cheese of a book -
So social action for the novelists and the journalists alike justified itself in private lives and conspicuous leisure. Sure, the money had to be made, but its blossom was made manifest in such fruits of the spirit as (and supremely) works of art, exquisite but unassuming dress, careful and uncondescending courtesy, the reticence of high, withheld intelligence, discreet but massive generosity towards the nation, a complex and interestingly ironic attitude to life.

Against these grand, middle-aged and bounteous qualities, exuding the certainty of success, the narratives of spontaneity, passionate (probably erotic) expression, vivid impulsiveness, hot allegiance, financial insouciance thrust themselves forward on the side of youth. Calm and fulfilled marriage on one side, the reckless love affair on the other; this is the twist-point of value as the First World war trundled over the horizon, and it was in these terms that celebrity was called onstage to enact the constellation of ideas.

Drama thrives on the collision of values in which either the admirable or the hateful is destroyed. In this short fresco of American life culminating in 1920, the gangster as celebrity is one favourite such action, particularly in the United States where social forms were so plastic, and success so defined in terms of physical action and sudden reward - gold mines, railroads, herds of cattle, newspapers, murder, So the ambiguous dramas of Al Capone, John Dillinger, the Pinkerton agency, and the grisly escapade in a garage on St Valentine's Day have a brightly lit corner in the moral imagination of the epoch, and in ours, its inheritor.


If you are thinking of buying me Lee Harvey Oswarld's slightly used coffin for Christmas, don't!

The ABC reports another expression of murderabilia (ie collectibles from serial killers and other nasties) in the form of an auction of Oswald's coffin -
For the JFK assassination conspiracy junkie who has everything: Lee Harvey Oswald's coffin is due to be auctioned in the US this month. Body not included.
Oswald and coffin were disinterred in 1981 after his widow gained an exhumation to test a conspiracy theory that a look-alike Russian agent had been buried in her husband's place. If you are into alfoil beanies you won't be convinced by the news that "the badly decomposed body was indeed Oswald's" ... presumably They switched the body back or tweaked the testing or whatever, before Oswald (or his look-alike) went back underground in a replacement coffin. They are so ingenious, whoever They are.

The report notes that
A Los Angeles auction house said it would sell the simple pine coffin in which the official assassin of president John F Kennedy was buried for almost 20 years.

Bidding will start at $US1,000, but the item is expected to fetch strong interest from museums and collectors of presidential memorabilia when it goes on the block on December 16.

"There's just a lot of interest in Kennedy and anything to do with his assassination", said Laura Yntema, auction manager at California-based Nate D Sanders. ...

The original coffin, which had suffered extensive water damage, is being sold by Baumgardner Funeral Home, the local undertaker which handled the re-internment.
Reuse of the box has startling possibilities - recycled into pencils, embedded into bling for placement on a finger or earring or around the neck, toothpicks, inlay in picture frames, barbecue chips, coasters ...

save you the bother of shooting yourself

George V famously exclaimed that he thought English upper class adult males found to have engaged in same sex activity did the decent thing and shot themselves. (I say adults, given indications of exploration among gender-segregated elite schools).

Thor Halvorssen of the Human Rights Foundation - under the heading 'United Nations: It's Okay to Kill the Gay' - notes that many governments will save you the bother, promising to head, hang or otherwise dispose of you for the wrong object choice.
Last week, the Third Committee of the United Nations General Assembly voted on a special resolution addressing extrajudicial, arbitrary and summary executions. The resolution affirms the duties of member countries to protect the right to life of all people with a special emphasis on a call to investigate killings based on discriminatory grounds. The resolution highlights particular groups historically subject to executions including street children, human rights defenders, members of ethnic, religious, and linguistic minority communities, and, for the past 10 years, the resolution has included sexual orientation as a basis on which some individuals are targeted for death.

The tiny West African nation of Benin (on behalf of the UN's African Group) proposed an amendment to strike sexual minorities from the resolution. The amendment was adopted with 79 votes in favor, 70 against, 17 abstentions and 26 absent.
Halvorssen notes that -
A collection of notorious human rights violators voted for the amendment including Afghanistan, Algeria, China, Congo, Cuba, Eritrea, North Korea, Iran (didn't Ahmadinejad tell the world there were no gays in Iran?), Egypt, Malaysia, Pakistan, Russia, Sudan, Uganda, Vietnam, Yemen, and Zimbabwe.

Add to this Bahamas, Belize (where you get 10 years for being gay), Jamaica (10 years of hard labor), Grenada (10 years), Guyana (life sentence), Saint Kitts and Nevis (10 years), Saint Lucia (10 years), Saint Vincent (10 years), South Africa (Apartheid? What apartheid?), and Morocco (ruled by a gay monarch!). They are all on the list of nations that do not think execution of gays and lesbians is worthy of condemnation or investigation. ...

Those against the amendment include every European nation present, all Scandinavian countries, India, Korea, most of Latin America, all of North America, and only one Middle Eastern nation: Israel. In most countries in the Middle East, it is a crime to be gay - in some, like Saudi Arabia, it is punishable by beheading and in others, like Iran, by hanging.
With just a dash of hyperbole he comments that -
The UN has a remarkable track record of doing virtually nothing when presented with mass killings or genocide. "Never again!" was the cry after the holocaust. Since then, the world has witnessed a dozen more never agains with strong condemnation from the UN coming after the corpses pile up. A resolution of the sort that was voted on in the General Assembly is significant for its clarity of message: "It's okay to kill the gays."
Papua New Guinea, the failed state in our neighbourhood, abstained. Halvorsen notes that -
Not a single African nation voted against the amendment. This is not surprising. Homosexuality is illegal in most of Africa. So acceptable is the notion of extra-judicial killings of gay men and women for their consensual private conduct that one of these countries, Uganda, is considering legislation making homosexuality (not the behavior, just being gay) punishable with death. The proposer of the bill, David Bahati, and the Ugandan "Minister for Ethics and Integrity," Nsaba Buturo, have vowed the bill will pass before parliament dissolves on May 12, 2011.
I am consoling myself by reading Stuart Biegel's lucid The Right To Be Out: Sexual Orientation and Gender Identity in America's Public Schools (Minneapolis: University of Minnesota Press 2010).

The US Defense Department has - oh shock and horror - meanwhile acknowledged in a 267 page report [PDF] on DADT that allowing gay men and women to serve openly in the nation's armed forces presents a low risk to the military's effectiveness (including in times of war) and that 69% of surveyed service members (out of a survey of 115,052 responses, supplemented by a mere 44,266 responses to a spouse survey) believe that the impact on their units would be positive, mixed or of no consequence.

Concerns about openly gay service members were driven by misperceptions and stereotypes: "exaggerated and not consistent with the reported experiences of many service members" absent 'moral' and religious objections to homosexuality. The DOD has perhaps learned from experience with racially segregated facilities, indicating thar it is not planning to construct separate bathrooms (one for hets, one for non-hets) - described as "a logistical nightmare, expensive and impossible to administer".

The report noted that -
The reality is that there are gay men and lesbians already serving in today’s U.S. military, and most Service members recognize this. As stated before, 69% of the force recognizes that they have at some point served in a unit with a co-worker they believed to be gay or lesbian. Of those who have actually had this experience in their career, 92% stated that the unit's “ability to work together” was "very good", "good", or "neither good nor poor", while only 8% stated it was "poor" or "very poor". Anecdotally, we also heard a number of Service members tell us about a leader, co-worker, or fellow Service member they greatly liked, trusted, or admired, who they later learned was gay; and how once that person’s sexual orientation was revealed to them, it made little or no difference to the relationship. Both the survey results and our own engagement of the force convinced us that when Service members had the actual experience of serving with someone they believe to be gay, in general unit performance was not affected negatively by this added dimension.

Yet, a frequent response among Service members at information exchange forums, when asked about the widespread recognition that gay men and lesbians are already in the military, were words to the effect of: "yes, but I don’t know they are gay". Put another way, the concern with repeal among many is with "open" service.

In the course of our assessment, it became apparent to us that, aside from the moral and religious objections to homosexuality, much of the concern about “open” service is driven by misperceptions and stereotypes about what it would mean if gay Service members were allowed to be “open” about their sexual orientation. Repeatedly, we heard Service members express the view that "open" homosexuality would lead to widespread and overt displays of effeminacy among men, homosexual promiscuity, harassment and unwelcome advances within units, invasions of personal privacy, and an overall erosion of standards of conduct, unit cohesion, and morality. Based on our review, however, we conclude that these concerns about gay and lesbian Service members who are permitted to be “open” about their sexual orientation are exaggerated, and not consistent with the reported experiences of many Service members. In today's civilian society, where there is no law that requires gay men and lesbians to conceal their sexual orientation in order to keep their job, most gay men and lesbians still tend to be discrete about their personal lives, and guarded about the people with whom they share information about their sexual orientation. ...

As one gay Service member stated:
I don't think it's going to be such a big, huge, horrible thing that DoD is telling everyone it's going to be. If it is repealed, everyone will look around their spaces to see if anyone speaks up. They'll hear crickets for a while. A few flamboyant guys and tough girls will join to rock the boat and make a scene. Their actions and bad choices will probably get them kicked out. After a little time has gone by, then a few of us will speak up. And instead of a deluge of panic and violence ... there'll be ripple on the water's surface that dissipates quicker than you can watch.
In communications with gay and lesbian current and former Service members, we repeatedly heard a patriotic desire to serve and defend the Nation, subject to the same rules as everyone else. In the words of one gay Service member, repeal would simply"take a knife out of my back ... You have no idea what it is like to have to serve in silence". Most said they did not desire special treatment, to use the military for social experimentation, or to advance a social agenda. Some of those separated under Don't Ask, Don't Tell would welcome the opportunity to rejoin the military if permitted. From them, we heard expressed many of the same values that we heard over and over again from Service members at large — love of country, honor, respect, integrity, and service over self. We simply cannot square the reality of these people with the perceptions about "open" service.
The report also states that -
We support the pre-existing proposals to repeal Article 125 of the Uniform Code of Military Justice and remove private consensual sodomy between adults as a criminal offense. This change in law is warranted irrespective of whether Don't Ask, Don't Tell is repealed, to resolve any constitutional concerns about the provision in light of Lawrence v. Texas and United States v. Marcum. We also support revising offenses involving sexual conduct or inappropriate relationships to ensure sexual orientation neutral application, consistent with the recommendations of this report

29 November 2010

Leave your brain at the door

Faith is a wonderful thing. Today's SMH reports a speech by Cardinal Pell in which he revealed that the lives of people without religious faith have ''nothing beyond the constructs they confect to cover the abyss". Life without God was ''life without purpose, without constraints'' ... a pronouncement somewhat at odds, in my case, of observance of constraints against strangling kittens, marrying a cow or otherwise running amok.

The same issue of the Herald reports the federal Opposition Leader as announcing that although there were good arguments for the monarchy (which he didn't condescend to share), they were ''often beside the point''.
The wellsprings of its appeal are instinctual as much as rational; more akin to loyalty to a team, solidarity within a family or faith in a church than they are to support for a policy. Deep down, they are the heart's reasons that reason doesn't know
The 'heart has its reasons' defence is perhaps unfortunate, given its use by former monarch Edward VIII in chucking the job.

Mr Abbott was admittedly opining in the Neville Bonner Memorial lecture to the Australians for Constitutional Monarchy, not the most critical of audiences, when he reportedly explained that -
Reaction to the engagement of Prince William and Kate Middleton showed the monarchy was ''evolving and renewing - not as other institutions might through legislation, vote, or upheaval but through something as natural and as fitting as the marriage of an appealing man to an attractive woman''.
Let's not think, of course, about the marriage of an appealing man to another appealing man, or even ditch the requirement for 'appealing'.

In what the Herald delightfully describes as "opening up a new line of attack in the debate over an Australian republic" (ie that "support for the monarchy need not be rational"), Mr Abbott reportedly continued that -
''This latest royal wedding is likely again to demonstrate people's response to ritual and tradition and their tendency to delight in princes and princesses,'' he said. ''If republicans could bring themselves to suspend hostilities, they might come to appreciate that what they currently find inexplicable or even offensive is not so for others and perhaps need not always be for them either.''

Professing delight that ''a wedding can trump argument'' he applauded the ''perennial gap between the mainstream and a commentariat that can't quite get an institution with its roots in an earlier time and a different way of thinking''.
I do like the "delight in princesses and princes" (and presumably Priscilla Queen of the Desert ... can't have too much bling and fustian). Let's not talk about the delight that people (with occasional cheers from "the commentariat" and the judicary) have taken in pogroms, witch-burning and other time-honoured colourful treats.

Mr Abbott's speech - titled 'Almost an Indigenous Monarchy' - demonstrates that the Opposition Leader needs to brush up on his constitutional law. "The governor-general, these days always an Australian, is our head of state". Um, actually no, Mr Abbott ... read the Constitution or analysis by leading constitutional lawyer Bede Harris.

28 November 2010

Cold water

From Richard Betts' 'Conflict or Cooperation?' appraisal in Foreign Affairs (2010) of Fukuyama, Mearsheimer and Huntington -
Like most red-blooded Americans, Fukuyama rejected the sour realist theory of international relations, which sees history not as a progression toward enlightenment and peace but as a cycle of conflict. Epochal threats made realism persuasive during much of the century of total war, but at bottom it is alien to American instincts and popular only among some cranky conservatives, Marxists, and academic theorists. (I have been accused of being among them.) Most people happily pronounced it passé once the communist threat imploded. "Treating a disease that no longer exists," Fukuyama claimed, "realists now find themselves proposing costly and dangerous cures to healthy patients."

Mearsheimer, however, is an unregenerate realist, and he threw cold water on the Cold War victory. Bucking the tide of optimism, he argued that international life would continue to be the brutal competition for power it had always been. He characterized the competition as tragic because countries end in conflict not out of malevolence but despite their desire for peace. In the absence of a world government to enforce rights, they find it impossible to trust one another, and simply striving for security drives them to seek control of their environment and thus dominance. If peace is to last, it will have to be fashioned from a stable balance of power, not the spread of nice ideas. In short, there is nothing really new about the new world.

Mearsheimer was a party pooper, defying what seemed to be common sense. Many found it easy to write him off when he claimed the revival of traditional conflicts would soon make everyone nostalgic for the simplicity and stability of the Cold War. But realism can never be written off for long. This school of thought has always agitated, even angered, American liberals and neoconservatives (who are in many ways just liberals in wolves' clothing). The theory falls out of favor whenever peace breaks out, but it keeps coming back because peace never proves permanent. Mearsheimer's vision is especially telling because it is an extreme version of realism that does not see any benign actors in the system and assumes that all great powers seek hegemony: "There are no status quo powers ... save for the occasional hegemon that wants to maintain its dominating position."

Gene Patenting

Reading the 160 page Senate Community Affairs References Committee report [PDF] on gene patents, which so far is not quite as horrendous as might be inferred from the early media reports. Several of the recommendations flick responsibility to separate consultations or are anodyne, eg that the Government gather more data about patenting.

The Committee's initial recommendation is that -
#1 the Government support and expand the collection of data, research and analysis regarding genetic testing and treatment in Australia, in line with recommendation 19-1 of the 2004 Australia Law Reform Commission Genes and Ingenuity report.
That is a worthy but unremarkable recommendation covering activity that in practice, as distinct from rhetoric, hasn't attracted much enthusiasm from either the ALP or Coalition.

The Committee goes on to recommend that -
#2 the Government conduct a "public consultation and feasibility study regarding establishing a transparency register for patent applications and other measures to track the use of patents dealing with genes and genetic materials".

#3 the Senate refer the Patent Amendment (Human Genes and Biological Materials) Bill 2010 to the relevant Senate committee for inquiry and report.

#4 the Government provide a combined response addressing the Committee's inquiry into gene patents, the 2004 Genes and ingenuity report by the Australian Law Reform Commission (ALRC) on gene patenting, the review of patentable subject matter by the Australian Council on Intellectual Property (ACIP) and the review of Australia's patent system by IP Australia. The Committee recommends that the response be provided not later than mid-2011 or three months after the release of the findings of all reviews.

#5 at an "appropriate time following the release of the ACIP review of patentable subject matter and the IP Australia review of the patent system, the Community Affairs References Committee be tasked with inquiring into the Government's response to, and implementation of, the recommendations of those reviews, as well as the recommendations of the Committee's report on gene patents".

#6 the Patents Act 1990 be amended so that the test for obviousness in determining inventive step is that a claimed invention is obvious if it was 'obvious for the skilled person to try a suggested approach, alternative or method with a reasonable expectation of success'.

#7 the Patents Act 1990 (Cth) be amended to remove the limitation that 'common general knowledge' be confined to that existing in Australia at the time a patent application is lodged (that is, that 'common general knowledge' anywhere in the world be considered).

#8 the Patents Act 1990 (Cth) be amended to "remove the requirement that 'prior art information' for the purposes of determining inventive step must be that which could reasonably have been expected to be 'ascertained' (that is, that the 'prior art base' against which inventive step is assessed not be restricted to information that a skilled person in the relevant field would have actually looked for and found)".

#9 the Patents Act 1990 (Cth) be amended to introduce descriptive support requirements, including that the whole scope of the claimed invention be enabled and that the description provide sufficient information to allow the skilled addressee to perform the invention without undue experimentation.

#10 the Patents Act 1990 (Cth) be amended to provide that an invention will satisfy the requirement of 'usefulness' in section 18(1) only in such cases as a patent application discloses a 'specific, substantial and credible' use. The Committee recommends that such amendments incorporate recommendations 6-3 to 6-4 from the Genes and Ingenuity report.

#11 the Patents Act 1990 (Cth) be amended to clarify the circumstances in which the Crown use provisions may be employed; and that the Government develop clear policies for the use of the Crown use provisions. The Committee recommends that the Government adopt recommendations 26-1 to 26-3 from the Genes and Ingenuity (report.

#12 the Government amend the Patents Act 1990 (Cth) to clarify the scope of the 'reasonable requirements of the public' test, taking into account recommendation 27-1 of the ALRC's Genes and ingenuity report. The Committee recommends that the Government review the operation of the competition based test for the grant of a compulsory licence, with particular reference to its interaction with the Trade Practices Act 1974 (Cth).

#13 the Patents Act 1990 (Cth) be amended to include a broad research exemption.

14 to assist courts and patent examiners with the interpretation and application of the Patents Act 1990, the Government consider amending the Act to include anti-avoidance provisions.

#15 to assist courts and patent examiners with the interpretation and application of the Patents Act 1990 (Cth), consideration be given to Government amending the Act to include objects provisions.

#16 the Government establish a patent audit committee.
A supplementary comment by Senators Cooney and Heffernan, the latter best known for the shameful slur against then High Court justice Michael Kirby, reads -
the Report fails to address the very issue which triggered this inquiry in the first place – gene patents.

Unfortunately, while the Report states that the Bill introduced into the Senate to ban gene patents is providing a "much-needed opportunity for the arguments and questions around the impacts and effectiveness of an express prohibition on gene patents to be considered" (para 4.135), we are of the view that the evidence presented to this Committee is sufficient to support the call for the implementation of such a ban. The time has come, after more than two years, for action. More talk, which is what this Report suggests as "much-needed" we believe will simply delay necessary action to prohibit gene patents.
In contrast Senator Boyce indicates that -
I remain very concerned that any changes in one part of patent law may have unintended consequences across a system which has underpinned most technological and industrial advances for centuries.

No changes should be made to patent law without the expert advice of organisations such as IP Australia and the Australian Law Reform Commission.