01 January 2011


A contact has drawn my attention to litigation challenging Commonwealth funding of the National School Chaplaincy Program (NSCP), ie paying for chaplains - predominantly Christian - in several thousand public and private schools.

The NSCP was funded by around $165 million last year, having absorbed around $437 million since its inception under the Howard Government. During the recent national election campaign Julia Gillard - channelling Doris Day in 'anything he can do, I can do better' mode - promised to double the money available for the program.

At a time when funding for education is in demand and teachers are underpaid, the rationale for funding religious activity is contestable. In August last year Prime Minister Gillard stated that -
Chaplains and pastoral care workers provide general personal advice, comfort and support to all students and staff. Chaplains can help build the sense of community in the school, support the school ethos and provide additional support for vulnerable children.
Critics have unsurprisingly - and, in my opinion, persuasively - responded that the chaplains are not professionally qualified to counsel children, that public funding undermines the separation of church and state and that schools cannot effectively supervise the work of the chaplains. Some critics have highlighted concerns that chaplains are evangelising in the playground. Others have noted concerns regarding practice.

The Northern Territory Ombudsman for example in its 162 page Investigation Report on the Operation of the Chaplaincy Program in Five Northern Territory Schools [PDF] for example expressed strong concern regarding the shape of the national program and its operation in the Territory, noting that "policies and procedures associated with the chaplaincy service" were "inadequate or non-existent" and that there was a need for "nationally consistent" criteria regarding who can be appointed as a chaplain. The Ombudsman recommended a ban on one-on-one pastoral care sessions after finding that chaplains were doing more than offering "a listening ear" to children experiencing domestic violence and abuse.
In one instance a psychologist who later treated a student was of the opinion that the chaplain had provided psychological services without the required qualifications. The most salient point is that nobody knew what services were provided during one-on-one sessions, nor the appropriateness or quality of those services.
That concern appears to be reflected in investigation by the Commonwealth Ombudsman.

The current High Court challenge to the constitutionality of the NSCP moves beyond the decision in Attorney-General (Vic); Ex Rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (the 'DOGS case') regarding federal funding of church schools. It appears that the plaintiff, Ron Williams, is arguing that -
a) the Commonwealth lacked executive power to enter into the Funding Agreement at his children’s school and as a consequence, that agreement was invalid or void;

b) The Commonwealth lacked executive power to enter into the agreement for the provision of funding for chaplaincy services at the school;

c) The Commonwealth could and cannot validly authorise the drawing of funds from consolidated revenue for the purposes of the funding agreement and the chaplaincy services;

d) That in the circumstances, any chaplain retained under the funding assistance given by the Commonwealth holds office under the Commonwealth and within the meaning of Section 116 of the Constitution;

e) By requiring school chaplains engaged at the school to comply with the stipulation set out in the NSCP Guidelines, the Commonwealth is imposing a religious test as a qualification for office under the Commonwealth in contravention of Section 116 of the Constitution;

f) That the qualification stipulation in the agreement is void and of no effect.
It is notable that the program has not been authorised by specific legislation, with the chaplains instead being paid out of Education Department funds.

In the DOGS the plaintiffs opposed state-aid to parochial schools, arguing that such aid was inconsistent with s 116 of the Constitution -
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The High Court, with a dissent by Justice Lionel Murphy, rejected the claim of inconsistency, declining to interpret the provision literally and narrowly, and hence rejecting claims that funding to religious entities breached a US-style strict separation of church and state.

Narrow interpretation of s 116 was apparent in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126 - the 'Stolen Generations Case' - where a majority of the High Court declined to consider forced removal of Indigenous children from their families as a violation of that section, with obiter that although a consequence of removal was to limiting the children’s religious freedom that was not the policy's purpose.

In March 2008 Carmelo Vescio, who has gained some prominence with ambitious litigation, challenged Commonwealth provision of around $22 million for the week-long World Youth Day event held by the Roman Catholic Church in Sydney. (The NSW Government provided upwards of $87 million.) Vescio's initial writ was reportedly refused by Justice Crennan as "confusing, prolix and embarrassing", after Chief Justice Gleeson directed the High Court Registrar to decline to issue the proceedings without the leave of a judge. In June 2008 Justice Kirby in a separate hearing considered that the case was "reasonably arguable", followed by a hearing before Justices Kirby, Gummow and Heydon, with Kirby in dissent over the majority's decision to deny an appeal over Crennan's decision and thus tacitly to deny the writ.

Kirby in 2009 commented that -
It is good to have competing moral principles taught and debated in our schools. It is not good to envisage religious instruction that denies all knowledge about controversies that the students will have to face on leaving the school gates. Like knowledge about the universal rights of women. Like knowledge about the existence of homosexuals and their rights. Like knowledge about the debates concerning in vitro fertilisation and therapeutic cloning of human cells. Like awareness of the conflicting views that exist in our society about abortion. Like knowledge of HIV and the use of condoms to reduce its spread. Like appreciation of the great diversity of Australia which is one of the strengths of our country and not a weakness.
Religious schools, along with other faith-based institutions, have successfully sought to place themselves outside anti-discrimination law. In a pluralist and liberal democratic society we should expect Scientologists, Wiccans, Roman Catholics, Hillsong, Presbyterians, the Church of Aryan Nations and other exponents of religious (or pseudo-religious) belief to seek a welcome in state schools. Recognition of religious diversity does not imply or require state funding of religious practitioners in those locations. By extension, it does not require funding of chaplaincy in workplaces - a notion that may strike some readers of this post as far-fetched but is consistent with the stated rationale for chaplaincy in schools.

'Religion as Politics not Law: the Religion Clauses in the Australian Constitution' by Carolyn Evans in 36(3) Religion, State & Society (2008) 283-302 noted that -
The Australian Constitution provides for the protection of religious freedom and prohibits establishment in very similar terms to the United States Constitution. Yet while Australian judges have often stated the importance of religious freedom in a democratic state and have defined religion in a broad, culturally sensitive way, they have taken a narrow approach to the scope of religious freedom and to the meaning of establishment. The end result is that the courts have played very little role in determining the boundaries of acceptable government or legislative behaviour in the regulation of religion. Instead, the key decisions have been left to the political branches of government, which have been given a broad scope of power to engage in all but the most direct and egregious breaches of religious freedom. ... the approach of the High Court in interpreting the religion clauses narrowly, as a constraint on government power rather than a right, has limited the capacity of the Court to participate meaningfully in the key legal questions around religious freedom. While this approach might have been workable in the past, the growing complexity of regulating religion means that the courts need to be able to develop more sophisticated legal approaches to questions of religious freedom.
We are unlikely to see those approaches, albeit Brett Walker SC for Walker may pose some challenging questions.

'An Argument for More, Not Less, Religion in Australian Politics' by Marion Maddox in 22(3) Australian Religion Studies Review 345-367 commented that -
Not only has s. 116 proved ineffective at preventing state aid to religion; it also offers only limited protection of individuals' religious freedom (Hogan 1981; Eburn 1995). Under the court's consistently minimalist interpretations, if an individual's right to religious freedom conflicts with the interests of the Commonwealth, the Commonwealth wins. Moreover, despite s. 116 falling in the Constitution’s chapter on the powers of the States, it constrains only Federal government. Referenda in 1944 and 1988 sought unsuccessfully to extend it to the States. Alone among the States, Tasmania’s Constitution Act (1934) protects religious freedom (s. 46[1]) and prohibits the imposition of a religious test (s. 46[2]). South Australia's Supreme Court found in Grace Bible Church v Reedman (1984) that "there is no legal remedy available to any person who believes that his or her right to freedom of religion or belief has been violated by that State’s Parliament or Government". Victoria, Queensland and Western Australia, as well as the Northern Territory and ACT, have laws prohibiting religious discrimination. The New South Wales Anti-Discrimination Act (1977) covers discrimination on the basis of ‘ethno-religious background’ under its prohibition of racial discrimination. Tasmania (Anti-Discrimination Act 1998), Queensland (Anti-Discrimination Amendment Act 2001) and Victoria (Racial and Religious Tolerance Act 2001) prohibit incitement to religious hatred, the Victorian Act becoming the basis of a controversial complaint against Catch the Fire ministries for a 2002 seminar said to have vilified Muslims (Deen 2008).

Neither necessary nor plausible

1 January, one year closer to 2012 when - if we're to believe Ervin Laszlo and other Mayan Calendar Endism fans - things either come to a very messy end or we (cue the quantum mystics' deux ex machina) somehow experience a "shift" in "global consciousness".

The latter is associated by Laszlo with brains - presumably the brains of the like-minded who enjoy a repackaging of Rudolf Steiner and Madame Blavatsky - becoming "quantum wave transceivers". One might wonder why transceivers are necessary, given that Laszlo's associates are big on precognition, two-way conversations with the dead (using valve radios or otherwise), dowsing, astrology, remote healing, telekinesis, Edgar Cayce's Ashashic Records and other delights that are not recognised in Australian law (or in hard science), but that's apparently the way it is.

In past posts on this blog I have questioned the absence of definitive scientific data substantiating the funnier assertions by exponents of quantum mysticism and suggested that nonsense on occasion harms people, not least through diversion of effort from changes that underpin the tangible improvement of human rights. A contact has now kindly pointed me to 'Is the Brain a Quantum Computer?' by Abninder Litt, Chris Eliasmith, Frederick Kroon, Steven Weinstein & Paul Thagard in 30 Cognitive Science (2006) 593–603.

They appear to be of the view that characterisation of the brain as a quantum computer is neither necessary nor plausible.
We argue that computation via quantum mechanical processes is irrelevant to explaining how brains produce thought, contrary to the ongoing speculations of many theorists. First, quantum effects do not have the temporal properties required for neural information processing. Second, there are substantial physical obstacles to any organic instantiation of quantum computation. Third, there is no psychological evidence that such mental phenomena as consciousness and mathematical thinking require explanation via quantum theory. We conclude that understanding brain function is unlikely to require quantum computation or similar mechanisms.
More pointedly, they comment that if the human brain is a quantum computer we should, if that characterisation is accepted, assume that other entities have the same consciousness. My contact noted that in questioning an article in Laszlo's World Futures journal I'd asked if acceptance of particular claims - legitimated through citation of fans of Uri Geller and other quackery - invoked acceptance of human rights for carrots and coffee cups. Litt, Eliasmith et al appear to be similarly troubled by the fuzziness of claims about the quantum brain, commenting -
Some have argued that tiny protein structures within neurons, microtubules, offer a milieu suitably sized and isolated for quantum coherence and computation (eg Hameroff 1998b; Kak 1999; Nanopoulos 1995). But these theories lack any empirical support and also run afoul of the previously mentioned decoherence–neural spike timescale discrepancies. Moreover, they raise the question of what makes brain microtubules so special that they alone allow for quantum computation. Microtubules are generic cellular structures that are involved in internal transport, combine to form cilia and flagella, and play a proven role in maintaining cytoskeletal structure (Grush & P S Churchland 1995). Found throughout the plant and animal kingdoms, their distribution in neurons is wholly unexceptional. Indeed, the hypotheses regarding microtubules offer nothing equivalent to traditional neuroscientific explanations of interspecies disparity. ... quantum–microtubule theorists have yet to outline plausible mechanisms by which species differ in their abilities. In this absence, are we to believe that carrots and rutabagas also exhibit quantum computation, or are conscious? As P S Churchland (1998) argued, "The want of directly relevant data is frustrating enough, but the explanatory vacuum is catastrophic. Pixie dust in the synapses is about as explanatorily powerful as quantum coherence in the microtubules" (p 121).
They comment that -
explaining brain function by appeal to quantum mechanics is akin to explaining bird flight by appeal to atomic bonding characteristics. The structures of all bird wings do involve atomic bonding properties that are correlated with the kinds of materials in bird wings: most wing feathers are made of keratin, which has specific bonding properties. Nevertheless, everything we might want to explain about wing function can be stated independently of this atomic structure. Geometry, stiffness, and strength are much more relevant to the explanatory target of flight, even though atomic bonding properties may give rise to specific geometric and tensile properties. Explaining how birds fly simply does not require specifying how atoms bond in feathers.

The primary aim of the cognitive sciences is to provide explanations of important mental functions, including perception, memory, language, inference, and learning. We contend that quantum properties are irrelevant to explaining brain functions, just as bonding properties are irrelevant to explaining wing function. ...

[W]e have provided an interlocking set of computational, biological, and psychological arguments against the hypothesis that the brain is a quantum computer. Let us return once more to our bird-flight analogy. The relevance of atomic bonding properties to the structure of wings does not necessitate their involvement in explaining flight, because aerodynamic mechanisms have proven sufficiently powerful to explain the phenomenon. Only if specific, flight-relevant geometric or tensile features arose purely from atomic bonding properties in feathers would it make sense to import these details into our explanations of bird flight. Because no such special properties are found in existing examples of wings, atomic bonding is not relevant to explaining bird flight. Similarly, there appear to be no special quantum mechanical properties needed to explain psychological and neurological phenomena. The onus is on those who would appeal to quantum theory to show the existence of aspects of the brain that are not explained by neurocomputational theories, and that can be explained by quantum computation or associated mechanisms. Although the discovery of solid evidence for fundamentally quantum characteristics of mental phenomena would be tremendously exciting, current ideas fall well short of this standard.

30 December 2010

UK Identity Documents Bill

Hoopla in the UK, with announcements that the national Identity Documents Bill received Royal Assent on 22 December, the outcome being that "ID Cards consigned to History by Home Office's first Bill!" The announcements follow rhetoric about Britishness and the imperative to despatch the card earlier this year.

Parliamentary Under Secretary of State Lynne Featherstone announced that -
All ID cards will be cancelled within one month of Royal Assent and the National Identity Register, the database which contains the biographic information and biometric fingerprint data of card holders, will be physically destroyed within two months.

The Identity Card Scheme represented the worst of government. It was intrusive, bullying, ineffective and expensive.

The coalition Government is committed to scaling back the power of the state and restoring civil liberties. This is just the first step in the process of restoring and maintaining our freedoms.
The Bill formally invalidates the identity card for UK citizens (although not for aliens) -
meaning that within one month, holders will no longer be able to use them to prove their identity or as a travel document in Europe. Following Royal Assent, a counter will be placed on the Identity and Passport Service (IPS) website counting down the time until cards become invalid.
Can't have too many gimmicks - clocks in countdown mode and so forth - to distract the voters.

In an article for Privacy Law Bulletin earlier this year I noted the diligence with which Ministers of the Cameron-Clegg coalition have stayed "on topic" when dealing with the Card. That has continued, with the Home Office announcing that -
ID cards have been scrapped by the government after the Identity Documents Bill received Royal Assent.

This means that all ID cards will now be cancelled within one month and the National Identity Register, the database which contains information of card holders, will be destroyed within two months.

Home Office Minister Damian Green said: 'The Identity Card Scheme represented the worst of government. It was intrusive, bullying, ineffective and expensive.

'That is why the first Home Office Bill of this Coalition Government has scrapped ID cards and the National Identity Register.

'The Government is committed to scaling back the power of the state and restoring civil liberties. This is just the first step in the process of restoring and maintaining our freedoms.'
The Identity & Passport Service Office (indeed complete with a clock ticking away the seconds) indicates that -
The Government began the process of scrapping identity cards by introducing the Identity Documents Bill to Parliament on 26 May 2010. The Bill made provision for the cancellation of the UK National Identity Card, the Identification Card for EEA nationals and the destruction of the National Identity Register. This Bill has completed the parliamentary process and the Identity Documents Act 2010 [PDF] received Royal Assent on 21 December 2010.

The passing of the Act means that identity cards will cease to be valid legal documents for the purposes of confirming identity, age or for travel in Europe after 21 January 2011.

Under the terms of the Act the National Identity Register will be destroyed within two months of the Act coming in to force. This means all personal information supplied during process of applying for an identity card, including photographs and fingerprints, will be destroyed by 21 February 2011.

Refunds will not be provided and identity card holders are not required to return the card to IPS. As the card will cease to be a legal document, if you have an identity card you should consider securely destroying it. If you choose to retain your identity card, you should ensure that it is kept in a safe and secure place.

The statutory post of Identity Commissioner, set up under the Identity Cards Act 2006 to provide independent oversight of the National Identity Service, is also terminated under the terms of the Act.

We will be writing to all existing cardholders at their registered address to inform them of the position.

If you are currently travelling overseas using an identity card and don't have a valid British passport, you will need to make arrangements to obtain a passport to continue your travel. You can either renew your last passport or if you are overseas and need to travel quickly you can apply for an emergency travel document at your local British Embassy/High Commission or Consular Office.
The IPS goes on to note that -
Is the biometric residence permit also being scrapped?

No. The UK Border Agency (UKBA) will continue to issue biometric residence permits to non-EEA foreign nationals (formerly known as Identity Cards for Foreign Nationals). The biometric data is not kept on the National Identity Register.
European law requires non-EEA foreign nationals to be provided with biometric residence permits.

They are separate from the programme to introduce the UK National Identity Card and the Identification Card for EEA nationals, and are issued under entirely different legislation.
and that
Is it now against the law to use my identity card when they are cancelled?

It will not be illegal to use your Identity card as proof of identity after 21 January 2011. Whilst the identity card is no longer valid for official purposes some organisations may still be willing to accept them as proof of identity without the ability to check against the National Identity Register.

Data loss (again)

Despite strong public criticism of recurrent losses of official laptops (in particular devices that hold unencrypted sensitive personal information) some US government agencies just don't seem to be getting the message, articulating guidelines for the management of the machines but then ignoring them.

A 34 page report from the Office of Inspector General (ie the internal compliance unit) at the national Government Printing Office on Control and Accountability of Laptop Computers (Audit Report 1102, 6 December 2010) indicates that as many as one-third of the 629 laptops issued to GPO employees and contractors since 2005 may be missing. To lose a few devices is bad luck; to lose a third of the complement looks like carelessness.

The report indicates that GPO managers could not explain where the laptops have gone (into the hopper bin, stolen, lost, with an executive's kids, in someone's bottom drawer?). GPO management did not adhere to standard written policies meant to ensure that the devices are tracked, indeed GPO recordkeeping does not identify which laptops went to which employee or contractor. The agency doesn't systematically collect laptops when employees leave.

Apart from concerns regarding expenditure (we might the estimate of US$470,730, given that laptops do wear out or get damaged) the Inspector General commented that the missing laptops risk exposing sensitive information on audits and investigations, acquisitions and personal data, including information on "the manufacture and issuance of security documents such as US passports". The organisation was exhorted to implement standard operating procedures covering acquisition, storage, delivery and return of laptops, underpinned by a better recordkeeping process. It should also inventory laptops each year, with investigation of those that go AWOL.

29 December 2010

Die, Frodo, Die!

From an obituary of Denis Dutton, Baudrillard foe, connoisseur of fakery and Arts & Letters Daily founder -
Dutton was at times considered a contrarian; in our [ie LA Times] opinion pages in 2004, he wrote
[Peter] Jackson's 'Lord of the Rings' represents the victory of special effects over dramatic art. ... I have never looked at my watch as often during a movie as I did in The Return of the King. Toward the end, I found myself desperately cheering on the giant spider in hope of getting home early. Eat Frodo! Eat him!
I was less generous, hoping that Gollum would channel Hannibal Lector and go munchies on Frodo, Sam ("oh master Frodo. Oh, Sam. Oh, Master Frodo. Oh, Sam. Oh, Master Frodo"), the longhaired wizard and all those elves.

I've meanwhile been reading 'Pee(k)ing into Derrida's Underpants: Circumcision, Textual Multiplexity, and the Cannibalistic Mother' by The Rev. Dr. Philip Culbertson, The College of Saint John the Evangelist (Auckland, New Zealand) in  (2010) 10 Journal of the Society for Textual Reasoning
In Nineteen Hundred and Forty-Four - the date was Columbus Day, October 12 - I was sailed like a frisbee quite involuntarily into the ocean of patriarchal heterosexism, of male hegemony, and of maternal betrayal, as the mark of circumcision was inscribed forever on my flesh. As I was hurled through the fog-obscured skies of gender expectation, my foreskin was ripped away in a gust/o of parental violence.

Four hundred and fifty-two years separate these two events, and yet Columbus and I hold a wound in common, like Freud, like Derrida. Columbus was, by most accounts, a Marrano, a Jew who adopted the external trappings of Catholicism in order to survive the successive waves of persecution and expulsion. I am not a Jew, but I, like Columbus - like Freud, like Derrida - am circumcised, involuntarily determined a child of patriarchy long before I could think for myself.

Who wounded me, and why was I wounded? As I struggle through the unveiling of my scars, so I unveil the wounds that all men carry. Some of us carry them visibly on our .... Even more troubling are the invisible wounds of the uncircumcised, the unreadable marks written on the bodies of men who are wounded and do not know by whom, or why, or even that they bear/bare wounds.

How do we make meaning out of the practice of male circumcision in the world, in the South Pacific, in Aotearoa-New Zealand, in the contemporary men's movements, and above all in the thought of Sigmund Freud and Jacques Derrida?
For me it is more impressive, or simply more fun (in the spirit of Derrida), than Culbertson's 'Designing Men: Reading the Male Body as Text' in (1998) 7 Journal of the Society for Textual Reasoning .

That response is presumably a reflection of the truth of the Schopenhauer aphorism, quoted elsewhere by Culbertson for the New Zealand Association of Counsellors in 2007, that "Every man takes the limits of his own field of vision for the limits of the world".

28 December 2010

eyes in the skies

While reading about the Outdoor Recreation Party and LDP I've serendipitously encountered a recent UK Economic &Social Research Council report by Ray Purdy on 'Smart Enforcement in Environmental Legal Systems: A Socio-Legal Analysis of Regulatory Satellite Monitoring in Australia' [PDF].

The lucid 225 page report -
examines whether modern satellite technologies could provide a rigorous, legally reliable, and cost effective tool in inspection and compliance regimes in environmental regulatory systems. It considers these issues in the context of relevant experience and expertise in Australia, which is the only sustained comparative example where satellites have been used to monitor an environmental law. Satellite monitoring is used to monitor compliance with vegetation clearing legislation in Australia. This report seeks to demonstrate lessons learnt from this cutting-edge practice in Australia and to identify how best to build on this experience if satellite monitoring is to be used in new regulatory strategies.
Purdy comments that -
Satellite monitoring of environmental laws is still more theoretical than applied, its use having largely been limited to detecting fraud in the agricultural sector. Understanding amongst European Governments of the potential of using satellites in regulatory strategies is insufficient at the current time, because the development of satellites has been almost exclusively technology led to date. There has been little communication between the space sector and those in the legal field as to the immense improvements that have been made in what satellites can see, and consequently development of applications for use in an enforcement context has been stifled. The lack of empirical evidence on operational experiences and costs available to regulatory bodies has meant that there has been a poor level of the use of satellite technologies in regulatory strategies, relative to its full potential.
He goes on to comment that -
use of satellite technologies by Australian regulators to combat illegal vegetation clearance is the first international example where satellites have been systematically used to monitor compliance with a specific environmental law. Australian regulators use satellite imagery to check legislative compliance, by analysing it to determine whether and when vegetation was cleared. They look for relative changes in vegetation response between two satellite images of the same location with different capture dates. Comparative images can show that the vegetation clearing took place between the first image date and the second. If the satellite image shows that an offence might have occurred, regulators can then take a decision as to whether to direct resources to further investigations.

Australia has been using satellite data in a regulatory context for about ten years and there have been a significant number of cases where imagery has been used in the courts. Many lessons can be learnt from Australia which could be useful to regulatory bodies in Europe. This is particularly so because Australia has a federal legal system, so each State has a different experience of designing and implementing satellite monitoring programmes for vegetation clearance. The experiences of each of three States examined in this report throws further light on the operational effectiveness and cost of using satellite technologies in a regulatory context.

State Governments in Australia acquire imagery from medium-resolution satellites, as it is relatively cheap and has good geographical coverage. Whilst this gives them a state-wide picture of land-use change, there can be difficulties in using such data in court. Experience has shown that medium and low-resolution satellite imagery of this type can be confusing to non-technical people, such as judges, as it can look blurry. In two States, if monitoring data from the medium-resolution satellite detects a potential offence, the Government might then purchase high-resolution imagery. It is particularly purchased if it is likely that a prosecution will proceed, as high-resolution imagery is more photograph-like in image quality, and can be more easily understood by laypeople in court. One Australian State has invested substantially more money in their monitoring programme and purchases state-wide high-resolution imagery on an annual basis.

Ad-hoc acquisition of high-resolution imagery can seem expensive, costing States approximately (AUS) $2000 for each image. However, as only in the region of five to ten cases might go to court each year, this could represent a net annual spend of approximately (AUS) $10,000 to 20,000. New South Wales has a state-wide programme of monitoring using high-resolution SPOT imagery, costing in the region of (AUS) $2.5 million a year. Whilst numbers of court cases remain at current levels, buying high-resolution imagery as and when it is needed to corroborate evidence from medium-resolution satellites is therefore relatively costeffective. Buying the satellite data is not the only significant expense of a satellite monitoring programme. There are also costs associated with the recruitment and training of analysts, as well as purchasing computer hardware and data storage facilities. ...

There have been different approaches taken by States as to whether to include specific provisions relating to the use of satellite imagery in legislation. Two States decided at the outset that this was not necessary and that the general investigative powers of regulators under existing legislation should suffice. Queensland adopted a different approach, by providing in their legislation that any technological instrument used under the act, in the absence of evidence to the contrary, is deemed to be accurate and precise. It is also deemed to have been used by an appropriately qualified person and the report that this person has prepared, based on the 'remotely sensed imagery', is deemed to be correct in the absence of evidence to the contrary. These provisions were copied from breathalyser legislation and effectively reverse the burden of proof, making it harder for the defendant to cast doubt on the evidence by questioning the correct functioning of the satellite. This legislative support came about not because of losing any court cases, but because this State Government was trying to save time-consuming work in proving that the imagery was credible evidence in court. The other side must advise, within a notice period, which specific areas of the evidence they will challenge. This is intended to give the Government enough time to prepare and respond to any challenges before a court hearing.

Satellite monitoring can be a very pro-active method of enforcement. Before satellite monitoring, Governments mainly relied on detecting offences through tip-offs. Satellite monitoring made them aware of a lot more possible offences, meaning that they had to substantially increase numbers of staff if they wanted to conduct inspections and make compliance decisions. Satellite monitoring might not, therefore, always solve resource difficulties within Government, and in fact, in the short-term, it might increase financial pressure. Governments wishing to introduce a satellite monitoring programme are required to have a far more strategic regulatory approach than those with conventional land-based approaches. Lawyers, scientific officers and investigators will all be required to work together as a team. Experience in Australia shows that there has not always been a good triangle of understanding and communication between these three groups. This has directly resulted in some prosecutions collapsing in court. It is, therefore, not just evidence that is an issue when satellite data is used in court, staffing and regulatory structures can sometimes be overlooked, even though these can be equally as important. Over time, States in Australia have been required to implement new strategies for encouraging liaison and interdisciplinary training between these three groups.

Australia has seen a significant number of cases where satellite imagery has been used as evidence in courts. There have been few challenges as to whether imagery should be excluded as unreliable evidence to date. However, the use of imagery in the Australian courts has been what can be best described as a 'bumpy ride' for Governments. After some early successful prosecutions, defence lawyers started to question the potential for date changing of the imagery, its quality and accuracy, the credentials of Government experts, and even whether the satellite was working correctly. Attacks such as these caught Governments by surprise. All three States have had phases where they have had problems with failed prosecutions, either for the above reasons or because of other procedural technicalities, causing them to pause enforcement programmes and reflect on their practices and procedures. A key cause of problems appears to be the initial lack of legal input in the development of monitoring programmes. Legal and technical disciplines need to work closely together, hand in hand, and not get out of sync with one another.

The judiciary in Australia appears to have a general openness towards new technologies and satellite images have been treated similarly to other forms of technological evidence. Judges appeared to be strongly persuaded by the facts and context of things visually. They were impressed that satellite imagery allowed them to view what the issue in dispute looked like at the time of the offence, allowing them to see for themselves what happened, rather than having to rely on recollections of witnesses as to what they saw, said, or heard. However, there was also recognition amongst the judiciary that as satellite imagery was digital data, there could be issues as to whether it could have been processed, or altered, in either a deliberately misleading or accidental manner, in a way that could affect its probity.

It is increasingly recognised by Governments in Australia that there are systems and protocols that can be put in place to enable satellite data to be a more effective form of legal evidence. For example, there is now greater emphasis on showing the chain of custody and events from the raw data, through processing, to the product that is used in court. Some States collect affidavits from external image suppliers to demonstrate authenticity. However, at the current time there are no national standards in Australia, which deal either directly or indirectly with using satellite imagery as evidence. Australia is not alone in not having developed standards in this area. There are no developed national or international rules or standards in place as to the specific use of satellite imagery as legal evidence. Such standards could give lawyers and judges greater confidence in the use of the technology and can also inform technical experts as to how to best manage digital data.

Poujadist donuts

A spot of poujadism in NSW, with announcement that the Outdoor Recreation Party (ORP) is campaigning against what it says is the growing intrusion of government, in particular restrictions on doing burnouts (ie making lots of noise, smoke and mess on a public road).

The ABC reports that the Party was initially formed "to represent four-wheel drive enthusiasts" but "now under new management" it's more broadly opposed to the nanny state.
Candidate David Leyonhjelm says speed limits are a case in point.

"We have revenue raising, masquerading as safety," he said.

Mr Leyonhjelm says all speed limits should be removed temporarily so they can be re-calibrated naturally.

"Measure the speeds at which drivers travel and drivers will travel at what they regard to be a safe speed," he said.

"Then you set the speed limit at the 85th percentile."

Mr Leyonhjelm also says motorists should be free to do burnouts.

"Law enforcement should not be worried about people doing silly things that endanger only themselves," he said.

"It should focus on danger to other people".

"So if you are doing a burnout and all that's likely to happen is you'll ruin your car, damage your tyres and leave some black marks on the road that's no business of anybody, especially not the police."
Mr Leyonhjelm appears to have been a candidate and Treasurer for the Liberty & Democracy Party, the libertarian microparty that attracted attention because its ACT Senate candidate Lisa Milat was the sister-in-law of convicted serial killer Ivan Milat. He doesn't seem to have been keen on seatbelts, bicycle helmets, gun control (the Howard Government restrictions were dismissed as "illogical and unjust"), restrictions on access by 4WDs to national parks and - of course - taxes. En route to the ORP he's apparently been a member of the Libs and NSW Chair of the Shooters' Party. "When the Shooters Party was deregistered by the AEC just prior to the federal election in 2004, he enlisted the Outdoor Recreation Party to run a team for the Senate and marginal NSW seats."

26 December 2010


Gathering info for my ANZSOG 'Wikileaks' paper in breaks from work on the Legal Practice Manual FOI chapter. Useful rhetoric from one L Trotsky on 22 November 1917 -
Secret diplomacy is a necessary tool for a propertied minority which is compelled to deceive the majority in order to subject it to its interests. Imperialism, with its dark plans of conquest and its robber alliances and deals, developed the system of secret diplomacy to the highest level. The struggle against the imperialism which is exhausting and destroying the peoples of Europe is at the same time a struggle against capitalist diplomacy, which has cause enough to fear the light of day. The Russian people, and the peoples of Europe and the whole world, should learn the documentary truth about the plans forged in secret by the financiers and industrialists together with their parliamentary and diplomatic agents. The peoples of Europe have paid for the right to this truth with countless sacrifices and universal economic desolation.

The abolition of secret diplomacy is the primary condition for an honest, popular, truly democratic foreign policy. The Soviet Government regards it as its duty to carry out such a policy in practice. That is precisely why, while openly proposing an immediate armistice to all the belligerent peoples and their Governments, we are at the same time publishing these treaties and agreements, which have lost all binding force for the Russian workers, soldiers, and peasants who have taken power into their own hands.

The bourgeois politicians and journalists of Germany and Austria-Hungary may try to make use of the documents published in order to present the diplomacy of the Central Empires in a more advantageous light. But any such attempt would be doomed to pitiful failure, and that for two reasons. In the first place, we intend quickly to place before the tribunal of public opinion secret documents which treat sufficiently clearly of the diplomacy of the Central Empires. Secondly, and more important, the methods of secret diplomacy are as universal as imperialist robbery. When the German proletariat enters the revolutionary path leading to the secrets of their chancelleries, they will extract documents no whit inferior to those which we are about to publish. It only remains to hope that this will take place quickly.

The workers’ and peasants’ Government abolishes secret diplomacy and its intrigues, codes, and lies. We have nothing to hide. Our program expresses the ardent wishes of millions of workers, soldiers, and peasants. We want the rule of capital to be overthrown as soon as possible. In exposing to the entire world the work of the ruling classes, as expressed in the secret diplomatic documents, we address the workers with the call which forms the unchangeable foundation of our foreign policy: 'Proletarians of all countries, unite'.
Trotsky, as first People's Commissar for Foreign Affairs, had reportedly earlier announced: "My task is a very limited one - to publish secret treaties and close down the shop".