11 December 2010


The ACT Attorney General, Simon Corbell, last week introduced the Crimes Legislation Amendment Bill 2010 (ACT) that includes re-establishment of the offence of bestiality.

The re-introduced offence will criminalise all sexual activity between a person and an animal, punishable by a maximum of 10 years imprisonment.

The ACT will join South Australia as the only Australian jurisdiction to state that bestiality involves all sexual activities between a person and an animal, with that broad definition contrasting with law in the Australian jurisdictions, where bestiality offences are restricted to penetration by or of an animal.

The Attorney General commented that -
This amendment will ensure that where an animal is used in a serious sexual assault, then this offending is captured by the most serious sexual offences in the ACT. ...

The Government identified that the offence of bestiality had been repealed at self government and saw the need to re-establish the offence to properly protect animals into the future in the ACT.
A consequential amendment to the Prostitution Act 1992 (Cth) will to ensure that a person convicted of the new bestiality offence cannot be an owner, operator or director of a commercial brothel or escort agency.

The rational for reintroduction is unclear, with no indication that abuse of/by animals is widespread and questions whether the AG is exploiting recent furore over footballer Joel Monaghan.

A quick scan of Ross on Crime 4 ed (Pyrmont: Lawbook Co 2009) suggests that salient statutes outside the ACT appear to be s 211 Criminal Code (Qld), s 69 Criminal Law Consolidation Act 1935 (SA), s 59 Crimes Act 1958 (Vic), ss 79 and 104 Crimes Act 1900 (NSW), s 138 Criminal Code (NT), s 122 Criminal Code (Tas) and s 181 Criminal Code (WA). Reported Australian ccase law - in contrast to apocrypha about rural congress with pigs, cows, sheep and goats - appears to involve dogs and even wallabies, eg R v Packer [1932] VLR 225 (CCA), R v. CAP [2009] QCA 174 and R v Tutchell [1979] VR 248 (CCA). The description in Buckley v R [2006] HCA 7; (2006) 224 ALR 416; (2006) 80 ALJR 605 is particularly unlovely.

In past times the penalty was death: examples are R v Jones [1833] TASSupC 6 and R v Smith (No 3) [1834] NSWSupC 125, with William Smith being "convicted of an unnameable offence". The court in that case stated that
after a patient trial, a Jury of his Country had found him guilty of a most atrocious offence, not to be named amongst mankind; he should follow the example of the learned Chief Justice, and forbear polluting the ears of the auditory by referring to the particulars of the heinous offence; all that remained for him then, in obedience to the commands of the law, was to order that the prisoner be taken to the place whence he came, then to the place of public execution, and then to be hanged by the neck until dead.
Changing values regarding the offence and its punishment are highlighted in works such as 'Zoosex and Other Relationships with Animals' by Rebecca Cassidy in Transgressive sex: subversion and control in erotic encounters (New York: Berghahn 2009) edited by Hastings Donnan & Fiona Magowan, Peter Singer's controversial 2001 'Heavy Petting', Bestiality and Zoophilia: Sexual Relations with Animals (New York: Berg 2009) edited by Andrea Beetz & Anthony Podberscek, and 'Peter Singer's 'Heavy Petting' and the Politics of Animal Sexual Assault' by Piers Beirne in 10(1) Journal of Critical Criminology (2001) 43-55.

privacy in the public sphere

Two perspectives on privacy ...

'Political parties and voter privacy: Australia, Canada, the United Kingdom, and United States in comparative perspective', an article by Philip Howard and Daniel Kreiss in (2010) 15(12) First Monday discusses the dirty little secret - abuse by political parties and associated entities.
Political parties are among the most lax, unregulated organizations handling large volumes of personally identifiable data about citizens’ behavior and attitudes. We analyze the privacy practices of political parties in Australia, Canada, United Kingdom, and United States to assess the current state of electorate data, compare regulatory efforts, and offer policy recommendations. While data has long been a part of political practice, there has been a revolution over the last decade in the opportunities for gathering, storing, and acting upon data. Candidates, parties, lobby groups and data–mining firms collect massive amounts of data. They trade analytical tools, databases, and consulting expertise on a vast and unregulated market. In these practices, political actors routinely violate the privacy norms of many citizens. There are also documented cases of data breeches in all four countries. Meanwhile, political parties face relatively few restrictions on their use of data, and have developed a wide variety of largely voluntary privacy policies that are inadequate. We argue that some straightforward policy oversight would significantly improve the way personal records are handled by political actors.
Closer to home there is a cogent 16 page paper [PDF] by Anthony Bendall & Helen Versey of Privacy Victoria on 'Privacy and the media - how to balance rights and interests'.

The authors comment that although the media is properly concerned about protecting freedom of expression,that protection must not be to the exclusion of privacy rights. Privacy and freedom of expression are not antithetical.

The paper argues that there are at significant gaps in Australian privacy laws and that privacy rights are unprotected in significant areas. I concur with that assessment and am, for example, concerned with the cavalier approach adopted by the national Privacy Commissioner in enshrining very fuzzy restrictions on data harvesting/use (PID 11 and PID 11A) in relation to genetic information.

The authors persuasively argue that "the way forward is to ensure that a serious breach of an individual’s privacy is protected through a statutory right of action. Technology no longer allows information to be forgotten. It is time that the gaps in the law are filled." Their national counterpart seems to be intent on widening the gaps on the basis of a problematical consultation exercise that should pose concerns for medical practitioners and members of the public.

a moral void?

From Christian Caryl's NYRB post on 'Wikileaks in the Moral Void' -
The Internet has brought countless benefits to mankind, but, as we see now, it also creates incalculable potential for mischief: it amplifies the threats of schoolyard bullies, empowers terrorists and fringe groups, and opens up huge new spaces to technologically savvy criminals. Now that data can be shared, linked, and exploited with near-instantaneous ease, the risks entailed by the publication of information mushroom out of all recognition; there is simply no way that any editor, however well-meaning, can make an informed judgment about the potential repercussions entailed by the release of vast amounts of confidential data of this sort. But this is where we are, and I wonder whether preaching restraint can have much effect. The technology has outpaced the ethics, and I wonder whether the ethics can ever catch up again.

Advocates of total information freedom might object that I am overlooking the fact that the tug-of-war between journalists and governments remains a deeply lopsided one. They might contend that government bureaucracies, with their enormous resources and closed cultures, still have far more power to control information than any Julian Assange; The Web’s guerrilla leakers are merely trying to even the playing field. I do have some sympathy with this argument. The WikiLeaks revelation that the State Department urged its employees to collect biometric data on foreign diplomats serving at the United Nations, while chilling, confirms what we already knew: that the modern-day national security state has at its disposal information technologies and resources that enable it to map our lives with a precision and power that will be extremely difficult to constrain by the rule of law. (Indeed, I may be particularly sensitive to this fact, since I’m one of the few American citizens to have had my biometric data recorded by the US government; that was a precondition for receiving a press card during my last visit to Iraq. I am allowed to be skeptical, I think, about whether the Department of Defense deleted this information when my accreditation ran out.)

So, yes, journalists should certainly strive to prevent abuses of the culture of secrecy. And, of course, the United States still offers plenty of room for precisely that by allowing for the possibility of political competition and public accountability—including disclosure of secret documents through the Freedom of Information Act. But the journalists (or whatever we decide to call them) who perform this justified oversight can only do so by exercising transparency in their own right—about their own motives, methods, and intentions. (One of the sad ironies of this latest chapter in the WikiLeaks saga is the revelation that Assange chose to punish The New York Times by denying it direct access to the cables because the paper had earlier published a story examining his management style and the personal controversies surrounding him; presumably Assange would denounce this as censorship if one of his targets were to indulge in such behavior. The Guardian ended up sharing its own copies with the Times, thus, in effect, leaking the leak.)

What, precisely, are the criteria by which WikiLeaks is deciding to release the cables it opts to publish? How are WikiLeaks and its print media partners editing them? According to a vetting process described by The Guardian and The New York Times, they have been deleting the names of some of the people mentioned in the cables—but not others. Why, precisely? If their goal is indeed “to open up the inner workings of a closed and complex system,” then shouldn’t they be publishing everything? And now we hear that Assange has been uploading a huge file of other confidential documents to various supporters around the world as “insurance,” to be published in the event that hostile governments succeeded in silencing him. (Meanwhile, in yet another twist, Assange was arrested in London this morning on charges of rape and faces possible extradition to Sweden.) The targets of that megaleak appear to include Bank of America and BP. Will the revelations in these files include commercial data on the firms’ customers? Perhaps their account numbers and credit card info? Of course the release of such personal information could cause enormous harm, but if it’s full disclosure we’re after, why not? (Apologies for the sarcasm—but you can’t help but wonder.) And why wasn’t this information published earlier?

What’s really at stake here is whether the technology, with all its intrinsic power and instantaneity, will allow for the introspection necessary for an enterprise like this. So far, though, I don’t see any convincing answer. And this is a much bigger question than the fate of WikiLeaks or Julian Assange.

10 December 2010

Card Crime

The ABC reports that five men are being prosecuted over a range of Commonwealth and state offences regarding fake credit card scheme. Given that every report needs hyperbole (the war on OMGs, terror, organised crime, comics, hobbits, baddie du jour) the men are described as "the credit card manufacturing syndicate".

The AFP is reported as indicating that it has "smashed a major fraud syndicate, allegedly responsible for manufacturing thousands of counterfeit credit cards", with officers from the AFP and NSW Police raiding properties in Sydney and Adelaide "as part of a 12-month investigation into the alleged credit card manufacturing syndicate" that was active in NSW, Victoria and South Australia.

The men allegedly skimmed people's credit cards to get the details and manufacture thousands of counterfeit cards that were then used to buy over $1 million worth of goods, such as televisions and luxury handbags. Just can't have too much Hermes or Louis Vuitton.

The ABC reports Col Dyson from the NSW Police Fraud Squad as indicating -
it is a burgeoning area of crime.

"We do have criminal groups that have moved from other criminal activities into identity crime," he said.

"We know that they realise now that this is a lucrative crime for them and they've either moved out of their more traditional crimes into this or they're supplementing their other criminal activities by engaging in identity crime."
Fadi Salami and Hussein Mourad were refused bail in Central Local Court.

The AFP media release is more detailed, indicating the involvement of the AFP, New South Wales Police, New South Wales Crime Commission, Department of Immigration & Citizenship and New South Wales Transport Roads & Traffic Authority.
It will be alleged that the syndicate sourced credit card details, created counterfeit credit cards and then used those cards to purchase goods and services in NSW, Victoria and South Australia.

The syndicate allegedly created supporting identification documents (including NSW driver licences and Medicare cards) to assist with the use of the counterfeit credit cards and supplied false identification to other persons on a ‘to order’ basis.
The investigation was initiated in November 2009 as a result of information provided by the Australian Crime Commission, with search warrants being executed this week in Roselands, Yagoona, Revesby, Hammondville, Punchbowl and Riverwood in NSW. A search warrant was also executed on a hotel room in Adelaide by AFP members supporting the investigation.
At the Hammondville premises approximately 1,000 blank credit cards and partially finished credit cards and NSW driver licences were seized, along with a card printing machine. A firearm was located at one premises and will be subjected to forensic examination. A commercial printer was also located ...

The men have been charged with a range of Commonwealth and NSW offences, including dishonestly dealing in financial information, dealing in the proceeds of crime, dealing with identification information, and making/using a false instrument. All were charged with participating in a criminal group.

The ISST is a multi-agency taskforce with members from the Australian Federal Police, NSW Police Force, NSW Crime Commission, Department of Immigration and Citizenship and NSW Roads and Traffic Authority.

The ISST operates from the AFP's Sydney office with teams also located in Melbourne, Perth and Brisbane. The teams investigate serious and complex identity security matters forming a collaborative network among law enforcement agencies to effectively deal with this crime.

Useful, like virology

From Gregory Petsko's impassioned denunciation [PDF] in (2010) 11 Genome Biology, of SUNY's plan to axe its departments of French, Italian, Classics, Russian and Theatre Arts.
As for the argument that the humanities don't pay their own way, well, I guess that's true, but it seems to me that there's a fallacy in assuming that a university should be run like a business. I'm not saying it shouldn't be managed prudently, but the notion that every part of it needs to be self-supporting is simply at variance with what a university is all about. You seem to value entrepreneurial programs and practical subjects that might generate intellectual property more than you do 'old-fashioned' courses of study. But universities aren't just about discovering and capitalizing on new knowledge; they are also about preserving knowledge from being lost over time, and that requires a financial investment. There is good reason for it: what seems to be archaic today can become vital in the future. I'll give you two examples of that. The first is the science of virology, which in the 1970s was dying out because people felt that infectious diseases were no longer a serious health problem in the developed world and other subjects, such as molecular biology, were much sexier. Then, in the early 1990s, a little problem called AIDS became the world's number 1 health concern. The virus that causes AIDS was first isolated and characterized at the National Institutes of Health in the USA and the Institute Pasteur in France, because these were among the few institutions that still had thriving virology programs. My second example you will probably be more familiar with. Middle Eastern Studies, including the study of foreign languages such as Arabic and Persian, was hardly a hot subject on most campuses in the 1990s. Then came September 11, 2001. Suddenly we realized that we needed a lot more people who understood something about that part of the world, especially its Muslim culture. Those universities that had preserved their Middle Eastern Studies departments, even in the face of declining enrollment, suddenly became very important places. Those that hadn't - well, I'm sure you get the picture.

Seamless silks

The Commonwealth Attorney-General, Robert McClelland, has announced that the national government will provide around $1.7 million to cover the start-up costs for the National Legal Services Board and the National Legal Services Commissioner, two legal regulators established as part of national reforms to the legal profession.

The bodies are characterised as -
a cornerstone of the new national regulatory framework and will play an important role in developing uniform national standards and ensuring consistency in complaints handling.
The funding has been puffed as demonstrating "the Commonwealth's commitment to the implementation of a truly national regulatory system for the legal profession".
These reforms will be of enormous benefit to the legal profession and to the broader Australian community.

This Commonwealth contribution represents an investment in Australia's progress towards a seamless national economy.

The reforms will improve consumer protections and enhance the competitiveness of our legal services profession internationally - by reducing red tape and standardising regulations.

These reforms will increase productivity in the legal services market, providing further opportunities for the legal profession to contribute to Australia's future prosperity.
All very white bread, motherhood and warm hugs.

09 December 2010

Border searches

The Commonwealth Ombudsman has released a 37 page report on Administration of coercive powers in passenger processing [PDF] regarding an investigation into use by the Australian Customs & Border Protection Service [ACBPS] of coercive powers.

The basis of those powers includes ss 195, 186 and 186A of the Customs Act 1901 (Cth), the Migration Act 1958 (Cth), the Environment Protection & Biodiversity Conservation Act 1999 (Cth) and the Anti-Money Laundering & Counter-Terrorism Financing Act 2006 (Cth). Section 195(3) of the Customs Act provides that the offence of not answering questions put under s 195(1) is one of strict liability. Salient case law regarding questioning includes R v Raso (1993) 115 FLR 319 and R v Bangura (2006) 3 DCLR(NSW) 179.

The report reflects complaints from travellers about their experiences with ACBPS officers. Those travellers often do not know why they have been searched, or are left wondering if the officer acted within their power. The report finds that searches by ACS "are generally consistent with principles of good administration but improvement could be made in several areas".

It indicates that -
A Customs officer is able to impede a person's passage through an airport and to ask questions that the person must answer. The officer is allowed to examine the person’s baggage and items found within it, including diaries and notebooks, laptop computers, cameras and other electronic storage devices. The officer can in some circumstances copy those documents – for example, the officer may download mobile phone content. The officer is also able to keep an item carried by the person for a period of time after the person has left the airport, to enable it to be examined by another area within Customs with the necessary expertise and equipment. These are strong powers, used by Customs to regulate the movement of people and goods across Australia's border.

Customs officers’ powers are exercisable with respect to all those who depart from and arrive in Australia on international flights. For the most part, passengers will travel through the airport unimpeded. Customs' 2008/09 Annual Report indicated that in that year it processed 24.33 million international air and sea passengers, and on average 97.4 per cent of those passengers were processed through Customs within 30 minutes of joining the inwards queue. Nevertheless, as complaints to this office indicate, when a person is subject to some form of Customs intervention at the airport, it can be cause for significant concern for that person.
Some sense of potential concerns is provided by an instance highlighted in the report, with the Ombudsman noting that -
a man was questioned about his accommodation in his country of origin, who he lived with, details of their relationship and whether he was married – which did not relate so much to the 'carriage of prohibited goods', as to whether his story stood up to the officer’s scrutiny. He complained to the Ombudsman that the questioning had been unduly invasive and personal, and that his reluctance to answer was interpreted by the Customs officer as if he had something to hide, which led to more questioning.
Improvements suggested by the Ombudsman relate to -
* the relevance of questions asked

* the relevance of documents copied

* the timeliness of the return of personal possessions after forensic examination

* gaps between policy and practice with respect to record keeping and the transparency of administration

* record keeping

* providing information to the public on passenger processing.

08 December 2010

Maybe it's the water?

Appointment as Attorney General of South Australia seems to induce a willingness to forget basic principles of jurisprudence among people who should be expected to provide an example to the community.

Yesterday the SA Attorney General, John Rau, announced that "South Australia is to get a Law Reform Institute for the first time in more than twenty years". According to his media release
the Institute will assist in the streamlining of South Australian laws and management of justice in this state. South Australia hasn’t had a Law Reform Commission since the late 1980s, and is the only jurisdiction in Australia not to have one. ...

"The South Australian Law Reform Institute, and its members, will play a key role in improving the administration of justice in South Australia", Mr Rau said.

"The Institute will help modernise, simplify and consolidate laws and the administration of the justice system and, in doing so, improve access to justice for the community.

The Institute's work will also lead to the repeal of laws that are obsolete or unnecessary for the community today.

In addition, the new body will consult and collaborate with law reform agencies in other states and territories on proposals to reform laws in other jurisdictions or within the Commonwealth."
Before you celebrate that progressive leadership, contemplate statements reported on the same day in the Adelaide Advertiser (ie the state's leading newspaper, albeit dismissed by Rau's colourful predecessor as a "sewer") under the headline "Attorney General John Rau moots laws to strip serious criminals of their rights".

The report states that -
Fundamental legal rights including the presumption of innocence and access to a fair trial must be sacrificed to eradicate sophisticated criminal gangs, Attorney-General John Rau says.

As the State Government prepares to return to Parliament in the new year with a raft of legislation targeting organised crime gangs, Mr Rau has warned the legal system has failed to keep up with ruthless gangs.

The State Government is in possession of a report from retired District Court Judge Alan Moss which includes several proposals for fixing anti-association laws ruled unconstitutional by the High Court last month.

Mr Rau said each model "has its own repugnant element" but the Government had "no choice" but to sacrifice legal principles in its attempt to win the war against criminal gangs.

"The rule of law has certain underpinnings in it, which include the fact that people are entitled to a fair trial, that there's a presumption of innocence," he said.

"When you are dealing with very organised, very sophisticated people whose capacities are much more focused and targeted than general government capacities are, you unfortunately have to start looking at models which eat away at those fundamental rights."
It is, in my opinion, both disturbing and bizarre that the SA Government - apparently unabashed by Supreme Court and High Court rejection of its flawed anti-bikie statute, apparently unabashed by criticisms such as that noted here, apparently unabashed by disquiet regarding proposals to reshape the rules of evidence in pandering to a crude populism - seems to be blithely headed towards sacrificing foundational legal principles.

We should, in my opinion, be wary about rhetoric involving "the war against criminal gangs". We should also be hesitant about statements that foster a moral panic or that expose the Attorney General to a much deserved ridicule. What will the new Law Reform Institute (and the University of Adelaide) be saying about Rau's proposals?

07 December 2010

Talking up

The High Court in Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42 has tacitly reinforced the right of political communication in confirming that an outspoken NGO has charitable status.

Aid/Watch was incorporated in 1993 under the Associations Incorporation Act 1984 (NSW), gaining endorsement in July 2000 as a 'charitable institution', ie as an entity exempt from income tax liability under the Income Tax Assessment Act 1997 (Cth). It was subsequently endorsed as a 'charitable institution' for the purposes of the Fringe Benefits Tax Assessment Act 1986 (Cth) and the A New Tax System (Goods and Services Tax) Act 1999 (Cth), aka the GST Act.

In 2006 those endorsements, and thus Aid/Watch's charitable status, were revoked by the Australia Commissioner for Taxation. Aid/Watch lodged an objection to the revocation (disallowed by the Commissioner in March 2007)and then appealed to the the Administrative Appeals Tribunal, which in Re Aid/Watch Inc and Federal Commissioner of Taxation [2008] AATA 652 set aside the Commissioner's decision and determined that the organisation was a "charitable institution" within the meaning of the relevant legislation. The Commissioner appealed, with the Full Court of the Federal Court in Federal Commissioner of Taxation v Aid/Watch Inc [2009] FCAFC 128 setting aside the AAT decision of the AAT and affirming the Commissioner's 2007 decision. Aid/Watch appealed to the High Court.

Aid/Watch, which promotes itself as an "activist" organisation, is concerned with the relief of international poverty, a laudable objective. In undertaking its mission it campaigns for improvement in the delivery of Australian overseas aid. That campaigning, which necessarily involves criticism and can be construed as political comment, contrasts with traditional charitable activity such as raising funds (which may or may not stick to the charity pipeline) or engaging directly in anti-poverty initiatives.

Aid/Watch argued that it seeks to ensure that -
1 aid projects and development programs and projects are designed to protect the environment and associated human rights of local communities in countries that receive Australian aid.

2 there is increased aid funding for environment programs with specific attention to renewable energy, end-use efficiency and energy conservation, small scale irrigation schemes and sustainable agriculture, land rehabilitation programs, waste management, and protection of biodiversity.

3 there are complete environmental impact assessment according to the highest standards for all projects, incorporating meaningful public/community participation.

4 aid and development projects and programs incorporate the principles of ecologically sustainable development.

5 there is respect for the rights of indigenous people and a recognition of their expertise in ecological management.

6 aid agencies, development banks and export credit agencies conduct full and regular [consultations with] community organisations, regarding the identification, planning, implementation, monitoring and evaluation of projects.

7 there is accountability and transparency in the Australian aid and export credit programs including freedom of information on all aspects of projects and programs of development agencies and multilateral development banks.

8 there is greater recognition of women's needs and greater involvement of women on development projects, and greater gender equity at all levels of the development process, including in consultancy firms contracted to implement aid programs and projects.

9 there is a halt to structural adjustment programs that contribute to environmental degradation and dislocate or damage the poorest populations.

10 there is an increased proportion of appropriate professional staff in Australia's official overseas development agency (currently AusAID), official Export Credit Agency (currently EFIC) and multilateral development agencies and consultancy firms contracted for aid programs and projects and the development banks.

11 there is increased funding of development education activities within Australia and an increased public awareness of the environmental and social impact of the Australian Overseas Development Assistance Program and related private investment, including input into environmental and developmental studies.
As a result Aid/Watch has criticised government and proposed major reforms. That activity was considered by the Commissioner to deny it charitable status, a matter explored in works such as Dal Pont's new Law of Charity (Chatswood: LexisNexis Butterworths 2010), noted here.

The majority in the High Court case indicated that -
Aid/Watch submitted that the generation by it of public debate as to the best methods for the relief of poverty by the provision of foreign aid has two characteristics indicative of its charitable status. The first is that its activities are apt to contribute to the public welfare, being for a purpose beneficial to the community within the fourth head identified in Pemsel. The second is that whatever else be the scope today in Australia for the exclusion of "political objects" as charitable, the purposes and activities of Aid/Watch do not fall within any area of disqualification for reasons of contrariety between the established system of government and the general public welfare.
The court concluded that -
These submissions by Aid/Watch should be accepted. By notice of contention the Commissioner submitted that the Full Court should have decided the appeal in his favour on the ground that the main or predominant or dominant objects of Aid/Watch itself were too remote from the relief of poverty or advancement of education to attract the first or second heads in Pemsel. It is unnecessary to rule upon these submissions by the Commissioner. This is because the generation by lawful means of public debate, in the sense described earlier in these reasons, concerning the efficiency of foreign aid directed to the relief of poverty, itself is a purpose beneficial to the community within the fourth head in Pemsel.
The Commissioners for Special Purposes of the Income Tax v John Frederick Pemsel [1891] UKHL 1, as noted by the High Court, is -
the source of the modern classification of charitable trusts in four principal divisions, namely, trusts for the relief of poverty, for the advancement of education, for the advancement of religion and for other purposes beneficial to the community. But even in 1891, the case law which gave the term "charitable" its technical meaning had developed considerably since the time of the British income tax statute of 1799. The case law may be expected to continue to do so as the cases respond to changed circumstances. As Lord Wilberforce put it, the law of charity is a moving subject which has evolved to accommodate new social needs as old ones become obsolete or satisfied.
the ultimate question regarding Aid/Watch is whether its public advocacy fits into the charitable category of "other purposes beneficial to the community". The High Court found that it did.

In the current case the Court also concluded that -
It also is unnecessary for this appeal to determine whether the fourth head encompasses the encouragement of public debate respecting activities of government which lie beyond the first three heads (or the balance of the fourth head) identified in Pemsel and, if so, the range of those activities. What, however, this appeal should decide is that in Australia there is no general doctrine which excludes from charitable purposes "political objects" and has the scope indicated in England by McGovern v Attorney-General.
In dissent Heydon J commented that Aid/Watch -
did not have the goal of relieving poverty. It provided no funds, goods or services to the poor. It did not raise funds to be distributed to the poor by others. The purposes of the appellant embraced aid to the poor, but they also embraced aid to many other sections of society as well. The goal of ensuring that there was local community involvement in the planning and implementation of aid projects was not targeted at the poor. Nor was the goal of ensuring that aid was delivered in an environmentally effective manner. Nor were the goals of respecting indigenous people and their expertise, ensuring "accountability and transparency" in relation to Australian aid programs, and increasing recognition of women's needs and involvement of women in development projects.

The Tribunal was correct to find that the relief of poverty had "no particular emphasis in [the appellant's] formal objectives". The Tribunal contradicted itself when it said that "[v]irtually every purpose or activity of [the appellant] is directed towards promoting the relief of poverty." The Tribunal was not correct to find that implicitly the relief of poverty was a "major objective" of the appellant. It was an objective, but diluted and diffused by many other objectives, and actually contradicted by some. The purpose of providing aid to improve infrastructure might relieve poverty, but the appellant opposed infrastructure which damaged the environment. One of its goals was to "demand" a complete phase out of support for extractive industries: these industries often damage the environment, but they also often bring wealth to many who would otherwise be poor. Similarly, the connection between opposing the Free Trade Agreement between Australia and the United States of America and relieving poverty was obscure.
Kiefel J concurred, commenting that -
A Full Court of the Federal Court (Kenny, Stone and Perram JJ) held that its main purpose was its political purpose, which is to say, the assertion of its views. The Court considered that it was not possible to determine that the appellant's purposes were for the public benefit, since the Court was in no position to determine that the promotion of one view, rather than the other, was for the public benefit. In my view, the Court's conclusion was plainly correct.

The submission by the appellant, that its purposes are for the public benefit because it generates public debate, cannot be accepted at a number of levels. Its assertion of its view cannot, without more, be assumed to have that effect. Its activities are not directed to that end. If they were directed to the generation of a public debate about the provision of aid, rather than to the acceptance by the Government and its agencies of its views on the matter, the appellant might be said to be promoting education in that area. But it is not. Its pursuit of a freedom to communicate its views does not qualify as being for the public benefit.

Look for the silver lining

A contact has pointed me to a Guardian piece, redolent of conspiracism, by Max Keiser, who appears to suggest that if we all buy some shiny metal we can - and should - bust JPMorgan Chase.
As part of the ongoing exposé, it has now become clear that JP Morgan is sitting on what is estimated to be 3.3bn ounce "short" position in silver (which they have sold short, meaning they don't own it to begin with) in an attempt to keep the price artificially low in order to keep the relative appeal of the dollar and other fiat currencies high. The potential liability for JP Morgan has been an open secret for a few years.

On my show, Keiser Report, I recently invited Michael Krieger, a regular contributor of Zero Hedge (the WikiLeaks of finance). We posited that if 5% of the world's population each bought a one-ounce coin of silver, JP Morgan would be forced to cover their shorts – an estimated $1.5tn liability – against their market capital of $150bn, and the company would therefore go bankrupt. A few days later, I suggested on the Alex Jones show that he launch a "Google bomb" with the key phrase "crash jp morgan buy silver".

Within a couple of hours, it went viral and hundreds of videos have been made to support the campaign.

Right now, silver eagle sales for the month of November hit an all-time record high and the availability of silver on a wholesale level is drying up. The most important indicator is the price itself – holding just under a 30-year high. With each uptick JP Morgan gets closer to going bust or requiring a bailout.
Putting aside a fundamental distaste for the Alex Jones Show (a venue for 9/11 Denialism and claims that the British Monarch is actually a large green extraterrestrial 'reptilian') my immediate response is to ask whether there is anyone with an interest in boosting the price of silver other than as a way of ostensibly punishing a big bad bank? Will it end in tears?

Large-scale speculation in shiny metal has a long history. I am reminded of the bursting of the speculative bubble on 'Silver Thursday', ie 27 March 1980, with panic on futures exchanges, a bailout of brokers and the disposal of the art collection (including the Euphronios Krater) of the "famously wealthy" and infamously right wing Hunt family.

Nelson Bunker Hunt and Herbert Hunt had attempted to corner the global market in silver, reportedly gaining rights over a third of the world's non-government holdings of the metal and in the process pushing up the price from US$2.90 per ounce to US48.70. Wealth has its ironies. The rise elicited an ad from Tiffanys - of course on a purely philanthropic basis - that declaimed
We think it is unconscionable for anyone to hoard several billion, yes billion, dollars worth of silver and thus drive the price up so high that others must pay artificially high prices for articles made of silver
Government-induced collapse of the bubble saw the brothers face a potential loss of US$1.7 billion and anxieties about the demise of other speculators and brokers, addressed through a US$1.1 billion line of credit from a consortium of US banks. Mitchel Abolafia & Martin Kilduff's 'Enacting Market Crisis:
The Social Construction of a Speculative Bubble' in 33 Administrative Science Quarterly (1988) 177-193 comment that
On October 26, 1979, the Chicago Board of Trade decreed that those traders holding in excess of 600 contracts for speculation in the silver futures market had to reduce their positions. "You can't do it," was Nelson Bunker Hunt's incredulous reaction. "You wouldn't dare. You're the last bastion of free enterprise in the world" .... Hunt found himself confronted by an organization with the power to redefine the rules of transaction and the temerity to violate the sacrosanct principles of a free nnarket. Over the next six months Hunt was to receive more lessons on the organizational context of free markets, as regulatory agencies and futures exchanges sought to control what they regarded as an artificial inflation in the price of silver.
The Hunts lost over a billion dollars, later being found guilty of conspiracy to corner the silver market and eventually declaring bankruptcy. Their travails are recorded in Stephen Fay's Beyond Greed (New York: Viking 1982), 'Spending: the Hunts, silver, and dynastic families in America' by George Marcus in 26(2) European Journal of Sociology (1985) 224-259, and Bryan Burroughs' The Big Rich: The Rise and Fall of the Greatest Texas Oil Fortunes (New York: The Penguin Press 2009).

SSN and ID Crime

'The Military’s Cultural Disregard for Personal Information' [PDF] by Gregory Conti, Dominic Larkin, David Raymond & Edward Sobiesk in 6(11) Small Wars Journal [2010] discusses misuse of the Social Security Number (SSN) in the US by military personnel, service providers and their families.

Despite advice that the number "is your identity" and has been shown to be a foundation for identity crime, the number is used as the default personal identifier in settings that include
- filling out health forms
- identifying laundry
- checking out basketballs, racquets or towels at the gym
- getting a flu shot
- buying a pair of pants at a ship's commissary
- identity cards borne by children of military personnel.
The authors comment that -
the military services lag a decade or more behind best practices found in other sectors of government, industry, and academia in the proper use and handling of PII [Personally Identifiable Information]. While positive progress has been made by the services, such progress is slow, ad-hoc, frequently ignored, and overshadowed by the common usage of the Social Security number as a way of tracking and identifying individuals. The systemic leakage of personal information in day to day operations, and a pervasive attitude of disregard for personal privacy is unsettling. Such issues are not tolerated outside the military - the time for substantive change within the military has arrived.

The problem of PII use has broad implications because the impact is felt by uniformed service members as well as government civilians, family members, and contractors, all of whom are compelled to disclose their Social Security number and incur the risk that it will be further disclosed, intentionally or unintentionally, without their knowledge or consent. The Federal Trade Commission, the United States Government’s lead agency in preventing identity theft, states “Don't carry your Social Security card in your wallet or write your Social Security number on a check. Give your Social Security number only when absolutely necessary, and ask to use other types of identifiers.” This guidance is impossible to follow within the military given the pervasive and compulsory use of the Social Security number.

There are some who believe that disclosing one’s Social Security number or birth date is harmless, however, this view is patently incorrect. An individual’s Social Security number combined with their date of birth provides access to one’s identity. Scammers, identity thieves, and other criminals can use this information to commit a wide variety of crimes including opening new credit card accounts, generating credit reports, taking over existing accounts, or as a way to shield their true identity when arrested for a crime. There is even a recent trend where criminals will use the Social Security number of children as a means of stealing an untainted credit history.

Fixing the damage caused by identity theft is imperfect, stressful, expensive, and time consuming. Accounts must be closed and credit reports fixed through long and painful processes. Innocent individuals are subject to harassment by collection agencies. The cost is high in terms of time and frustration. The problem is magnified when an individual is deployed, allowing much damage to occur without their knowledge, or if known, serves to place additional stress on already strained families. Unlike a password which can be routinely changed, our Social Security number and date of birth are meant to be with us for life. Thus, disclosure of this information places us at risk for life; in fact some identity theft even occurs after death, creating immense problems for surviving family members.

The Intervention

I'm impressed by the nuanced approach in Mary Edmunds' 28 page paper [PDF] The Northern Territory Intervention and Human Rights: An Anthropological Perspective.

Edmunds concludes that -
It is essential that the Commonwealth ensure that
Australia’s human rights international obligations are fulfilled. But it also needs to ensure that this process takes account of how those human rights are implemented
and experienced on the ground. The Intervention shook the assumptions of how that might happen. It relied, in its original incarnation, on the shock impact of The little children are sacred report. And, as Toni Morrison said in her 1998 ABC interview with Jana Wendt (Uncensored, Australian Broadcasting Corporation), ‘I insist on being shocked ... To lose the capacity to be shocked is to lose our humanity’.

But the impact of the Intervention also demanded that we reflect on how the implementation of human rights goes beyond pronouncements, fundamental as they are, to an active engagement between government and those affected by government policy. The present Federal Government approach is attempting to do that. It remains to be seen whether it will or, like so many previous governments, will not succeed.

The key to a long-term response is not to be captured by a disconnected rhetoric of human rights, but to anchor that rhetoric in its translation through the prism of Aboriginal people’s contemporary lived experience. That lived experience draws on traditional culture and values; acknowledges dysfunction; recognises that it is subject to the forces of modernity, including necessary engagement with government in the intercultural space; but demands the right to operate in full partnership. That, finally, will determine how Aboriginal people’s human rights are exercised.


Amnesty International has released a 51 page report [PDF] on caning in Malaysian prisons.

Among other statutes that allow flaying are the Immigration Act 1959/63, with 6 offences-
6. Unlawful entry into Malaysia
36. Unlawful return after removal
55. Conveying a person to Malaysia illegally
55B. Employing more than five people who are person in possession of a valid Pass
55D. Forgery or alteration of immigration endorsement or document
56D. Harbouring a person known or believed to have acted in contravention of this Act
and the Penal Code, which features offences such as -
377. Buggery with an animal
377A. Carnal intercourse against the order of nature
377B. Punishment for committing carnal intercourse against the order of nature
Jeremy Bentham will be turning in his grave.

The report indicates that -
In recent years, Malaysia has increased the number of penal offenses subject to caning to more than 60. Since 2002, when Parliament made immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

In Malaysian prisons specially trained caning officers tear into victims’ bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim’s naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness.

The Malaysian government does not punish officers for their actions. Instead, it trains officers how to conduct caning and pays them a bonus for each stroke. Many double their income through their caning work. Others take bribes to intentionally miss, sparing their victims.

State-employed doctors also play an integral role in caning. They examine victims and certify their fitness to be caned. When victims lose consciousness during caning, they revive them so the punishment can continue. After caning, some victims suffer long-term physical disabilities. ...

Refugees who fled torture and forced labour in Burma told Amnesty International how Malaysia (which does not recognise refugees) caned them for immigration violations, sometimes repeatedly. In Indonesia, Amnesty International met migrant workers deported by boat from Malaysia; 63 of the men had been caned.