30 April 2011

Famous but smelly feet

'Couple to forge future of the British monarchy', one of the BBC's more fatuous items on yesterday's royal wedding indicated that "The House of Windsor, its power stripped away over the centuries, now survives on being noticed. It withers, if ignored". Oh dear, that sounds like 'famous for being famous', with the House of Windsor largely indistinguishable from celebrities such as David Beckham or Lindsay Lohan or the exhibitionists in the Big Brother House.

Having survived -
The corgis have been consumed at the afternoon reception, the crowds are beginning to diminish, and we are left with a fresh royal recruit - Her Royal Highness the Duchess of Cambridge
- corgis being of course canapes - I was reminded of the recent ODNB profile of Jane Myddelton, who is characterised simply as a "beauty" and is famous for being famous, albeit with smelly feet.

The date of birth of Myddelton (née Needham) is unknown. She was baptised in 1646 and died some time between 1692 and 1703. She was married at the age of fourteen, as his second wife, to a man some ten years older than herself, Charles Myddelton as his second wife.
According to the courtier and writer Anthony Hamilton's ironic pen-portrait, Mrs Myddelton's beauty soon attracted many admirers, but she had an air of 'indolent langour' which not everyone found appealing, and her efforts to appear brilliant succeeded only in putting her audience to sleep. His acerbic comments may owe something to the failure of his friend the comte de Gramont to seduce her. Gramont, who arrived in London in January 1663, instantly pursued Jane Myddelton, as did Richard Jones, Viscount Ranelagh. Gramont soon desisted, the French ambassador reporting in August 1663 that Mrs Myddelton had ordered him to stop as it was both useless and disagreeable. Colonel William Russell, son of the Hon. Edward Russell, and grandson of Francis, fourth earl of Bedford, sent her presents and owned her portrait but only one of the admirers mentioned by Hamilton certainly became her lover - Ralph Montagu, master of the horse to the duchess of York and then the queen. Mrs Myddelton was painted by Sir Peter Lely in the early 1660s as one of a series of portraits of beautiful women to hang in St James's Palace. The portrait indicates she was blonde, with the fashionably full face, heavy-lidded eyes, 'bee-stung' lips, and rounded figure of the Restoration.
Alas, there's a canker in every rose, or in every disagreeable memoirist. The ODNB records that -
In 1665 the diarist Samuel Pepys saw Jane twice: on 22 March at Gresham College, when he called her "a very great beauty I never knew or heard of before", and on 10 April in Hyde Park, where she was the only "beauty" he saw that day. ... On 3 October Pepys was troubled to hear that she was "noted for carrying about her body a continued soure base smell that is very offensive especially, if she be a little hot", a problem referred to in two later satires Colin (1679) and The Ladies March (1681):
Middleton, where'er she goes,
confirms the scandal of her toes.
... Rumours circulated that Jane was to be appointed a dresser to the queen but, Browne wrote, "the conditions have not yett a mutuall consent and I am told hir last indisposition hath a little impaired hir esclat". Nothing seems to have come of the negotiations. Pepys saw Mrs Myddelton on 5 February 1667 at the King's Theatre in Drury Lane, and on 23 June that year he wrote that a previous rumour he had heard, that Mrs Myddelton was now a mistress of the duke of York, was untrue. Robert, second earl of Sunderland, commissioned her picture from Lely in 1666, Lorenzo Magalotti visiting England in 1668 included her in his list of English beauties, and the following year the French ambassador reported that the king was pursuing her, but again she seems to have avoided becoming a royal mistress.
Virtuous, it seems, or merely descreet, as well as beautiful. Her younger sister Eleanor became the mistress of the king's son James, duke of Monmouth, about 1674 and had four children with him.
Mrs Myddelton became friendly with both the king's mistress, the duchess of Portsmouth, and her rival the duchess of Mazarin, in 1676. In the summer of that year the French ambassador, Courtin, reported that Mrs Myddelton was the most beautiful woman in the kingdom and that the aged poet and philosopher M. de Saint-Evremond had fallen hopelessly in love with her, but that Ralph Montagu, who had been her lover for a long time, had now fallen for the duchess of Mazarin. Courtin was greatly attracted to Mrs Myddelton, who he claimed was not only a great beauty but most amiable. It was, however, difficult to get near her as she was surrounded by admirers and, moreover, Courtin did not think she could be seduced by money, having once refused a significant present from Gramont. Courtin's praise was such that the French minister Louvois requested her portrait.
The profile comments that -
From a protestant Welsh gentry background and married young into a similar family, not wealthy and with nonconformist friends such as the Angleseys, Jane Myddelton's image as a 'beauty', which she no doubt cultivated, gave her an entree to court circles and gained her many male admirers, although she in fact seems to have been attracted to relatively few of them. "Illustre entre les belles" ("Illustrious among beauties"; Steinman, 60), "handsomely made, all white and golden" (Hamilton, 109), for her own and subsequent generations Jane Myddelton was the epitome of the Restoration beauty, never mentioned without the epithet "fair" or "beautiful". Such indeed was the exclusive interest in her looks that she seems almost wholly defined by them and the person remains rather less accessible than the famous image.
Contemporary sources refer unkindly to "the notorious Mrs Middleton" and to "the fair one's funky hose".

Every step you take ...

The NY Times reports on a 65 page report [PDF] by the National Employment Law Project, which suggests that around 65 million people in the US have some type of criminal record (for an arrest or a conviction) and highlights employment discrimination on the basis of that information.
Some ... have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.

Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.
The Times notes a 2010 survey [PPT] by the Society for Human Resources Management, with around 90% of companies surveyed - mostly large enterprises - indicating that they conducted criminal background checks on some or all job candidates. Many are reported to screen out anyone who has a hint of criminal activity (including people who were arrested but not convicted), disregarding government guidelines that demand employers take into account the severity of an offense, the length of time that has passed and its relevance to the job in question.

The Times comments that -
There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964. ...

At least three lawsuits brought under the Fair Credit Reporting Act, which mandates that employers notify applicants rejected because of a consumer reporting agency’s criminal background check, have been settled for the plaintiffs.

Defendants in lawsuits over criminal background checks have included transportation companies, a charter school, screening companies, a global consulting firm and the Census Bureau.

In New York, where state law regarding background checks is stricter than federal policies, the state attorney general’s office has settled with Radio Shack, ChoicePoint and other companies after investigating them for violations.
Meanwhile the European Commission has release a 44 page Evaluation report on the Data Retention Directive (Directive 2006/24/EC) [PDF].

The report notes inconsistencies in national interpretation (or merely in implementing) the 2005 EU Data Retention Directive. More problematically, it comments that eight of the 19 member states that have implemented the Directive have disrespected its focus of providing data to combat "serious crime". The UK has not defined "serious crime". Law in France, Italy, Belgium, Denmark, Poland, Latvia, Slovakia and Slovenia permits use of retained data in investigation of all criminal offences.

One of the more perplexing memes in Australian IT literature is that European privacy law fundamentally hobbles effective law enforcement and that there are few requests for access under the Directive. The report is a useful reminder that is not so.

The Directive harmonises European law, requiring Member States to oblige providers of publicly available electronic communications services or of public communications networks to retain telecommunication traffic and location data for between six months and two years for the purpose of the investigation, detection and prosecution of serious crime.

An unused regime? The report notes that there were around 2.9 million access requests from 2008 to 2009 (equivalent to two requests for every European police officer a year or 11 requests for every 100 recorded crimes).

The Commission has floated the idea of a data retention hierarchy to ensure data is only accessed under the Directive in relation to serious criminal offences.


From 'Giving Guilt: The Aneconomy of Law and Justice' by Andreas Philippopoulos-Mihalopoulos in 12(1) Distinktion: Scandinavian Journal of Social Theory (2011) 79-93 -
The concept of guilt is seen here as debt beyond repayment. Following Derrida, the gesture of giving is placed in the economy of gift, an aneconomical gift that is not part of the exchange cycle. At the same time, guilt is linked to desire, the desire to give and to be free from guilt. Desire is described as the urge to cross over, to apprehend the non-identical and to give oneself away. In this reinforced crossing, where the improbability of giving conditions the improbability of reaching out, guilt and its impetus are found locked up in claustrophobic self-reference. For this reason, the author consults Kierkegaard and Luhmann whose contributions show that the gesture of giving acquires its relevance not so much on account of its recipient, but precisely because of the absence of such a recipient. The combination of an absent recipient and an absented giver fills the gift with an emptiness that can only be channeled back upon itself, in the autopoietics of guilt. This is exactly the fate of the law, which can deal with the guilty but never with guilt (in the above sense). In its attempt to give away guilt, the law attempts to become other than itself: justice. The improbability of crossing over becomes more obvious than ever.
He comments that -
Giving performs a certain crossing. This occurs not just because giving traditionally entails a movement from the one who gives over to the one who receives. Not even because one usually wants to receive back or to bask in the recipient’s pleasure. Rather, the act of giving itself, the gesture per se, is a crossing. It is irrelevant what is given or to whom. The point of relevance is the crossing from self to other, from one side of a boundary to the other, from here to there: indeed, the gesture of giving as an intentional bridge between giver and receiver, namely, a bridge that connects while keeping apart. Just as Husserlian intentionality constitutes a disrupted connection between subject and object (Husserl 1973), in the same way guilt intentionally links while tears apart. Thus, on the one hand one finds the emptying of givenness, the absence of the given left behind. And on the other, the desire that is left unfulfilled, the unquenchable wish to cross onto the other side: these are the loci of the present text. ...

Although my reading of autopoiesis and Luhmann more specifically is idiosyncratic and purposefully distant from given interpretations (see, however, Clam 2007), I insist on the non-metaphorical conception of autopoietics of guilt. This means that guilt, just as communication, cannot be conceived outside its autopoiesis, namely, the self-generating and thus infinite stock of guilt that relentlessly moves (or attempts to move) across a boundary. This boundary (be it between individuals, organizations or systems) separates the location of guilt from its projected dislocation, namely, its eventual self-eradication. The paradox here is that guilt wants to exhaust itself, to disappear, and in so trying, it always produces itself in excess. Guilt is inexhaustible and so is the desire to cross.

In that sense, the present article contributes to what I have elsewhere called 'Critical Autopoiesis' (Philippopoulos-Mihalopoulos 2009), namely, the emerging understanding of autopoiesis that applies itself onto itself in critique and indeed in crisis. The crisis of autopoiesis is not just a theoretical crisis. Rather, it is a crisis of excess, of waste and putrefaction. In its normal operation, autopoiesis generates its own autopoietic excrement. This is both an expected state of the theory (any theory) as well as a much anticipated link between on the one hand, the theory, and on the other, a society that is consumed by guilt over its own overconsumption and overproduction. In that sense, guilt is a space of critique within society, a mnemonic mirror that cannot be alleviated by recourse to the traditional means of absolution, namely, god or law. Indeed, it is on the latter that this article partly focuses. The particular choice is justified on two fronts: first, law is considered to be dealing with guilt in an expiatory way for both the perpetrator and the victim. Indeed, this is what in some respects is called justice. And however rare an occurrence justice might be, it remains a more convincing manifestation of a working mechanism than divine justice. The second reason for the choice of focus is less valiant, but in some ways more imperative: god is much harder to focus on, herself a particularly intensely moving target whose absence might require an entirely different methodological avenue. Still, there is a lot of god in what follows, not least because the difference between law and justice on the one hand and god on the other might merely be a question of the material on which the text is written on – stone tablets, turtles, bodies, paper, screens.
And on and on.

29 April 2011


From John Cook's review in the current Bookforum of books on Wikileaks -
Assange's primary contribution to what he has repeatedly described as the largest leak of classified information in history consisted, essentially, of checking his e-mail. Aside from that, judging from Domscheit-Berg's account, WikiLeaks staffers spent most of their time Googling the organization's name and attending conferences.

That's not to diminish the genius of the idea Assange had in WikiLeaks, which was essentially to cut reporters and editors out of the process of disseminating sensitive information. It's simply to say that the story of how he did it is exceedingly dull, and that much of the cloak-and-dagger mythology that has developed around him since WikiLeaks began handing over hundreds of thousands of classified Defense and State Department documents to various newspapers last year is just that — mythology.
Cook goes on to describe the relationship between Assange and Domscheit-Berg, who -
joined WikiLeaks as a volunteer in 2007. He was swiftly promoted to being the group's chief spokesman, acting essentially as Assange's deputy. He begins the story as one of Assange's many wide-eyed congregants and ends it as a bitter and betrayed renegade. Their relationship was complicated and characterized primarily by Domscheit-Berg's keen hunger for affirmation from Assange and Assange's idle contempt for Domscheit-Berg. In high school terms, Assange is the cool and self-confident kid for whom everything comes easy; Domscheit-Berg is the clueless mule Assange keeps around to buy cigarettes. The intensity of Domscheit-Berg's desire for validation from his antihero borders on the pathetic. At the book's opening, he writes, "Sometimes I hate him so much that I'm afraid I'd resort to physical violence if our paths ever cross again." Yet when Domscheit-Berg became engaged to be married in March 2010, long after his relationship with Assange had deteriorated and Assange had started to behave cruelly toward him, "Julian was the first person I told ... there was nothing I wanted more than to have Julian there." After their final parting, Domscheit-Berg carried his laptop with him everywhere, including the bathroom, with the hope that Assange would bury the hatchet via a chat program.
Thumbs down for St Julian the Whitehaired Martyr -
The Assange who emerges through these chats is autocratic, vain, pedantic, self-aggrandizing, and utterly without self-awareness. "Under no circumstances was anyone permitted to criticize his Tweets", Domscheit-Berg writes — and the comic disproportion of that edict tells you all you really need to know. At various points, Assange says things like "I'm off to end a war", "Do not challenge leadership in times of crisis," and "I will destroy you." When two Swedish women filed sexual-assault charges against Assange — an accusation that landed him in a British prison; he is, at the time of this writing, appealing an order that he be extradited to Sweden to answer the complaint — Assange's reaction was to berate his staff for failing to organize rallies supporting him, raise money for his legal defense, and procure "false papers" so that he could travel without facing the charges.
Very Secret Squirrel or Inspector Gadget.
Assange certainly didn't view himself as a man who rented servers. He insisted on ludicrous security arrangements and told unconfirmed tales of assassination attempts, placing himself at the center of vast conspiracies even before he became a household name. And after he received a collection of intelligence documents from Afghanistan, incident reports from Iraq, and State Department cables from around the world—almost certainly from Private Bradley Manning, a dissident army intelligence analyst who now sits in a military brig — the spy games intensified. He began traveling with bodyguards, Domscheit-Berg writes. According to Leigh and Harding, he dressed up as an old lady in November 2010 during a drive from London to Ellingham, England, to avoid unspecified bogeymen.

Obtaining those documents seemed to change Assange — in much the same way that Gollum became a different being entirely when he happened on the ring. As all these books show, it's not that Assange was covetous — he was in fact loose with the cables, doling them out to various hangers-on and even giving the whole database to one Icelandic volunteer who then leaked it to another reporter. But the power they bestowed was not lost on him. One of the grand ironies of Assange's story is that WikiLeaks' success transformed the group into precisely the thing it was designed to render obsolete — a journalistic institution with its own agenda. ...

For decades, secrets have been trafficked through a professional class of journalists and newspapers with their own interests, liabilities, social networks, and standards of official conduct. ... Enter WikiLeaks, which performed a technological end run around the sclerotic, compromised journalist class. Assange's digital machine was nearly automatic. Anonymous leakers uploaded their wares, and if WikiLeaks volunteers could verify the material, it would be published in the order in which it was received. If successful, such a system could rob the journalistic establishment of its power as gatekeeper between the murky netherworld of secrets and rumors and the light of day.

But instead of undermining that power, Assange sought to commandeer it. Both The Guardian's WikiLeaks and the Times' Open Secrets reveal Assange's tortured relationship with the newspapers to be more about control and ego than information. Worried that the disclosures of the Afghanistan, Iraq, and State Department documents wouldn't be high-profile enough if WikiLeaks staffers simply dumped them onto the Web, Assange agreed to offer The Guardian, the Times, and Der Speigel (and later El País and Le Monde) exclusive access to the documents ahead of publication. But with each release (the consortium published the Afghanistan documents in July and the Iraq ones in October, then began releasing the cables in November), relations became more frayed. Assange began making side deals, promising access to the State Department cables to television news outlets without consulting the other partners. At the same time, he held out on handing over the cables to the eager Guardian reporters he'd promised them to; Leigh and Harding write that he "talked of how he would use his power to withhold the cables in order to 'discipline' the mainstream media."
The "the sclerotic, compromised journalist class" hasn't come to heel.

Crime Myths

The 'strong on crime' rhetoric that disfigured the recent NSW state election would have us believe that 'crime' - in particular violent crime perpetrated by strangers rather than by the people with whom you share your dwelling - is increasing and can be reduced through the sharp smack of 'law & order', restrictions on knives or spending on public cctv.

The reality is somewhat different, illustrated by data in the New South Wales Recorded Crime Statistics 2010 [PDF] from the NSW Bureau of Crime Statistics & Research. (It would be nice, by the way, to see similar compilations from the other jurisdictions.)

The 60 page NSW report presents data extracted from the Computerised Operational Policing System (COPS) of the NSW Police Force in February 2011 regarding -
crime reported to, or detected by, the NSW Police Force from January 1995 to December 2010, with a focus on the statistical trends for the 24 months ending December 2010.
The Bureau comments that -
The broad picture among the 17 major offence categories is largely one of stable or falling crime. In the 24 months to December 2010, ten of the 17 major offences were stable and seven were trending downwards. No major offences were trending upwards across the State.

The downward trend in assault on licensed premises reported in the last two quarters has dropped back to stable across all licensed premises, but continued for clubs (down 16.9%) and nightclub/licensed restaurant/winebar (down 16.8%).

Mixed signals

My attention was caught today by the ABC news item reporting that "Killer wins reduced sentence" -
A Melbourne clairvoyant who killed his lawyer after losing his house in a divorce settlement, has won a reduction in his prison sentence.

But his appeal against the conviction was rejected.

The court heard Glascott was so resentful over his failed divorce settlement, that he went to [lawyer David] Robinson's offices with the intention of burning them down.

When Mr Robinson unexpectedly arrived, he shot him dead.
Perhaps the murderer was receiving mixed signals from the celestial aether, his clairvoyance apparently failing to convey bad news in advance regarding the divorce and several judicial decisions, such as DPP v Glascott (Ruling No 4) [2008] VSC 243 and DPP v Glascott (Ruling No 5) [2008] VSC 244.

The initial judgment is DPP v Glascott [2008] VSC 236, where the court commented that -
I conclude particularly on the specialist evidence and also having regard to the general evidence that you at the relevant time (July 2006) suffered depression and had some cognitive deficits but that you were fully aware of what you were doing and had full control over what you were doing. In particular you were fully aware of, and had full control of, your acquisition of the Russian pistol and its ammunition, your taking it to Station Street fully loaded, your two attempts to set fire to the solicitor’s premises, your shooting of and assault upon Mr Robinson in order to avoid identification and apprehension, and your flight from the scene. At all times you fully knew the wrongfulness of your conduct. It has not been established that you now are, or ever were, psychotic.

In all the circumstances I have moderated the sentence to be imposed upon you by reason of your medical history and condition, but do not conclude under well-known principle that general deterrence does not apply or should be moderated in this instance.

Further, I consider that general deterrence has an especial application in this case. That is because resentful persons who seek to punish the caring professions should themselves be discouraged by the law from doing so. It is the proper task of caring professions – lawyers, doctors, welfare persons and many others – to care for unstable persons, which persons can be resentful, brooding and aggressive. As you were. It is the function of the law to protect those caring professions from that incident of their good work.
The Court stated that -
You are an intelligent, unstable, and aggressive person. Your dealings with your former wife and her family, and their legal counsel, amply demonstrate those characteristics. You have a number of previous convictions. The relevant convictions are three convictions in May 1983 of imposition, for which ultimately you were placed on a good behaviour bond for twelve months; a conviction in April 1985 of being in possession of property suspected of being stolen or unlawfully obtained, for which you were placed on probation for two years; a conviction in September 1991 of making a false report to police, for which you were fined $500; and a conviction in February 1993 of being employed as an unlicensed agent and for which you were fined $500.

You have an extensive medical history. On the plea comprehensively made on your behalf by your counsel, a substantial body of material was tendered. In considering sentence I have had central regard to it. ... No witnesses, expert or otherwise, were called on your behalf on the plea.

It is evident from those reports that you have a lengthy medical history. You attempted suicide by carbon monoxide poisoning in January 1985. Following the 1985 attempted suicide, you have suffered cognitive defects as the result of brain damage in the region of the globus pallidus bilaterally and the right corona radiata. The principal consequence of this injury is in the area of memory, and also in new learning. However, as noted by the clinical neuropsychologist who examined you on 17 April 2008, Mr J Drury, in his report (p.8) you have "satisfactory cognitive skills across several measures, including verbal reasoning and social judgment". Mr J Drury reported that you have deficits in short-term memory and new learning. You were noted to exhibit no evidence of psychosis, depression or suicidal ideation upon admission in 1985 to the Mont Park Psychiatric Hospital. In April 2006 you were admitted to Sunshine Adult Acute Psychiatric Unit as a possible suicide risk, where you remained for six days and were then discharged. It is clear that you have suffered depression over many years. A distinguished psychiatrist, Dr L Walton, in his report of 2 June 2008 following a review of the medical history and examination of you on 9 April 2008 concluded as follows (p.3):
"What can be stated unequivocally is that Mr Glascott is a brain-injured individual. It seems highly likely that he was suffering from significant depressive problems prior to the assault upon his brain with carbon monoxide and there have been recurring depressive problems thereafter, more than likely aggravated by the brain injury.

It does seem that Mr Glascott has become increasingly paranoid in more recent years. I suspect that this is a belated consequence of his brain injury as well, as he does not seem to have been observed at any stage in a state of full-blown psychosis.

Simply given the duration of this man’s psychiatric symptoms, it can be safely concluded that he was mentally compromised at the material time.

There was an air of unreality about Mr Glascott’s sense of wellbeing at the time of my assessment. I strongly suspect that in the aftermath of his being convicted and sentenced, he will experience another bout of depression necessitating active treatment.

The combination of this man's chronic depression, brain injury and paranoia, in my opinion, would allow a sentencer to rely upon the principles enunciated in Verdins et al.
I have had careful regard to the opinion of Dr Walton. However, I regret to say that the generality of his opinion ("It does seem that Mr Glascott has become increasingly paranoid in more recent years" and "it can be safely concluded that he was mentally compromised at the material time") renders it of limited utility. I conclude particularly on the specialist evidence and also having regard to the general evidence that you at the relevant time (July 2006) suffered depression and had some cognitive deficits but that you were fully aware of what you were doing and had full control over what you were doing. In particular you were fully aware of, and had full control of, your acquisition of the Russian pistol and its ammunition, your taking it to Station Street fully loaded, your two attempts to set fire to the solicitor’s premises, your shooting of and assault upon Mr Robinson in order to avoid identification and apprehension, and your flight from the scene. At all times you fully knew the wrongfulness of your conduct. It has not been established that you now are, or ever were, psychotic.

27 April 2011

Judicial Review

The Administrative Review Council (ARC) has released a 101 page discussion paper on Judicial Review in Australia [PDF], for comment by 24 June 2011. (Black marks, to A-G's, btw, for a 223 character URL ... hardly consistent with the stated commitment to accessibility.)

The Council comments that over thirty years have passed since the commencement of the Administrative Decisions (Judicial Review) Act 1977 (Cth), so that it is timely to examine federal judicial review and assess whether the existing system for judicial review of administrative decisions meets current needs.

Matters relevant to the ARC inquiry include -
• the divergence of legal principle between constitutional judicial review and judicial review under the ADJR Act

• the differing jurisdiction of the three federal courts in judicial review matters

• the development of legal principle in all judicial review jurisdictions, including the alignment of state and federal judicial review

• the increase in both legislation and the volume of decisions made by government

• the privatisation of government functions through a variety of mechanisms

• changes in the way that decisions are made, in particular the use of technology to automate decision making, and

• the use of hybrid mechanisms which combine features of administrative decision making with decisions of a legislative character.
The paper indicates that the Council will consider -
• developments in the law of both statutory and constitutional judicial review

• changes in the broader system of government administration

• statistical data about judicial review applications under the current system

• comparisons with other jurisdictions, and

• views of stakeholders.
The paper has five parts.

The first identifies the background to the inquiry, summarises past reports dealing with judicial review, and notes the ARC's aims regarding the future direction of judicial review, including -
• the need for statutory review mechanisms, both general and specific, in light of the fact that constitutional judicial review is entrenched and cannot be excluded by legislation

• the ambit and provisions of a general statutory review scheme, if the Council considers such a scheme to be desirable, and

• general principles that should to apply to any statutory review scheme, and guidance as to whether and when specific statutory review mechanisms are appropriate.
The second part describes the Australian administrative law system in Australia and its development, covering changes to government since the 1970s that justify reconsideration of the system and foundational administrative law principles. The third part deals with "the complex mechanics of the current system of judicial review — the constitutional sources of review, the ADJR Act and other statutory sources of review", including a statistical overview.

The fourth part identifies the key issues, with overlapping sources for judicial review potentially creating uncertainty for users of the system. It examines and makes recommendations regarding six elements of judicial review —
• the ambit or scope of judicial review - the range of decisions and decision makers that are subject to judicial review, and those that might be included under an expanded regime

• the grounds of review - a comparison of the grounds available under the common law and statutory models and questions about the best approach to ensuring that there is clarity around the grounds of review

• remedies - a comparison of the remedies available under the common law and statutory models and whether any additional remedies are required.

• standing - the purpose and effect of standing requirements in judicial review proceedings and when a broader standing test should be available for judicial review

• reasons - should be an obligation to provide reasons for a decision and what that obligation should entail

• court procedures - the role of the courts in the judicial review process and whether the streamlining processes which have been introduced into migration litigation might be introduced more broadly
The paper also discusses 'additional statutory review mechanisms', ie the role of specific statutory review provisions operating in particular decision making jurisdictions and in appeals from Administrative Appeals Tribunal decisions. "These mechanisms add another layer to the multiple avenues of review, and their role could be reconsidered as part of the development of a new general statutory review scheme."

The final part of the paper considers models for implementing reforms to judicial review, comparing other jurisdictions and outlining possible models for reform in Australia.

Voter Identity and Voodoo

A fundamental identity is direct participation in political processes, through for example the right to vote in elections.

An editorial in the NY Times points to a brief study [PDF] by the Brennan Center for Justice at New York University School of Law in discussing legislative changes that mandate use of identity documents at polling places and thereby "make it much harder for the young, the poor and African-Americans — groups that typically vote Democratic — to cast a ballot".

The Times comments that Republican legislatures and governors are rewriting voting laws -
Spreading fear of a nonexistent flood of voter fraud, they are demanding that citizens be required to show a government-issued identification before they are allowed to vote. Republicans have been pushing these changes for years, but now more than two-thirds of the states have adopted or are considering such laws. The Advancement Project, an advocacy group of civil rights lawyers, correctly describes the push as "the largest legislative effort to scale back voting rights in a century".

Anyone who has stood on the long lines at a motor vehicle office knows that it isn't easy to get such documents. For working people, it could mean giving up a day's wages.
The Brennan Center study suggests that 11% of US citizens do not have a current photo ID. (Figures on the number of Australians without a drivers licence, passport or other official photo ID are unavailable. As a point of reference Year Book Australia 2003 - the ABS compilation - indicated that there were some 15.4 million motor vehicle and motor cycle licences, a figure with substantial double counting.out of a population of 19.9 million people.)

In the US that 11%
increases to 15 percent of low-income voting-age citizens, 18 percent of young eligible voters and 25 percent of black eligible voters. Those demographic groups tend to vote Democratic, and Republicans are imposing requirements that they know many will be unable to meet.
The Times goes on to report that -
Kansas ... voters will be required to show a photo ID at the polls. Before they can register, Kansans will have to produce a proof of citizenship, such as a birth certificate.

Tough luck if you don't happen to have one in your pocket when you’re at the county fair and you pass the voter registration booth. Or when the League of Women Voters brings its High School Registration Project to your school cafeteria. Or when you show up at your dorm at the University of Kansas without your birth certificate. Sorry, you won’t be voting in Lawrence, and probably not at all.

That’s fine with Gov. Sam Brownback, who said he signed the bill because it’s necessary to “ensure the sanctity of the vote.” Actually, Kansas has had only one prosecution for voter fraud in the last six years. But because of that vast threat to Kansas democracy, an estimated 620,000 Kansas residents who lack a government ID now stand to lose their right to vote.
Over 30 US states are reported as joining the eight that already had photo ID laws.
The Wisconsin bill refuses to recognize college photo ID cards, even if they are issued by a state university, thus cutting off many students at the University of Wisconsin and other campuses. The Texas bill, so vital that Gov. Rick Perry declared it emergency legislation, would also reject student IDs, but would allow anyone with a handgun license to vote.
Perry has recently attracted attention for declaring three days of prayer for rain, a fascinating illustration of the intersection of religion, politics and popular culture.

His proclamation reads -
WHEREAS, the state of Texas is in the midst of an exceptional drought, with some parts of the state receiving no significant rainfall for almost three months, matching rainfall deficit records dating back to the 1930s; and ...

WHEREAS, these dire conditions have caused agricultural crops to fail, lake and reservoir levels to fall and cattle and livestock to struggle under intense stress, imposing a tremendous financial and emotional toll on our land and our people; and

WHEREAS, throughout our history, both as a state and as individuals, Texans have been strengthened, assured and lifted up through prayer; it seems right and fitting that the people of Texas should join together in prayer to humbly seek an end to this devastating drought and these dangerous wildfires;

NOW, THEREFORE, I, RICK PERRY, Governor of Texas, under the authority vested in me by the Constitution and Statutes of the State of Texas, do hereby proclaim the three-day period from Friday, April 22, 2011, to Sunday, April 24, 2011, as Days of Prayer for Rain in the State of Texas. I urge Texans of all faiths and traditions to offer prayers on that day for the healing of our land, the rebuilding of our communities and the restoration of our normal way of life.
As I've noted elsewhere, it is perplexing that the pious (or merely opportunistic) Texas Governor does not declare state Days of Prayer for other ills. Why not a Day of Prayer to deal with rattlesnakes, coyotes and other varmints (as unpleasant as drought - and, in the case of poisonous serpents, more deadly - but surely a part of God's creation)? If, like sundry people noted in this blog, we accept the notion that prayer or the miraculous intercession of the saints can heal cancer, why not a state - indeed national - day of prayer (or week of prayer) to alleviate inconveniences such as amputated limbs? (I remain perplexed, innocent that I am, as to why prayer makes cancer go away but doesn't regrow a missing limb or two ... such selectivity seems inconsistent with claims about higher powers.) If a week does not suffice, try a month, and throw in some wailing, gnashing of teeth, rending of clothes (sackcloth and ashes are the new black) and expiatory burning of witches or other baddies.

24 April 2011

Moto perpetuo

As an aficionado of the legally weird and wonderful (evident in disquiet about research that cites proponents of reincarnation, two-way communication with the dead, remote viewing, remote healing (alas, not a therapy that seems to restore severed limbs), astrology and other parapsychological claptrap) I was delighted to read Australian Securities & Investments Commission v Cycclone Magnetic Engines Inc & Ors [2010] QCA 71. It's better than a visit from the Easter Bunny, and far less fattening!

In that case, involving action by the national securities regulator against fundraising by promoters of a new engine, the court commented that -
The Business Plan explained that CME was engaged in the development of a commercially viable engine which, deriving its power solely from magnets within the engine, would have no need for fuel of any kind. The respondent claimed and the primary judge declared that, in representing to potential investors that such a machine could work, CME engaged in conduct which was misleading or deceptive, or likely to mislead or deceive, in breach of s 12DA of the Act.
The Court in Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc & Ors [2009] QSC 58 noted that -
For hundreds of years people have been investing time, money and effort in attempts to create a perpetual motion machine. Even though such a machine would violate either or both of the first and second laws of thermodynamics, there has been a continual stream of these "inventions" since at least the twelfth century. Coincident with that has been the quest by the "inventors" for funding to support their creations. There are many examples of funds being raised to sustain these endeavours. There have also been many who have been willing to point out the impossibility of these attempts, sometimes with scathing condescension. On other occasions the would-be inventor is met with bureaucratic intolerance.

One of the ways in which it has been claimed that a machine can be created, which will require no external fuel input, is through the applied use of very strong magnets. That is the case here. In England the subject was studied during the reign of Queen Elizabeth, with a text on the properties of magnets being published in 1600.

Bishop John Wilkins, in his book Mathematical Magick, discusses the ”difficulty” of achieving perpetual motion, and considers in detail a device consisting of two tilted ramps, an iron ball, and a magnetic lodestone fastened at the top. He determined that the device could not work but concluded: "So that none of all these magnetical experiments which have been as yet discovered, are sufficient for the effecting of a perpetual motion, though these kind of qualities seem most conducible unto it; and perhaps, hereafter, it may be contrived from them.” The interaction among magnets, electricity and the generation of power has been investigated by giants of the field: Coulomb, Ampere, Faraday and Tesla.

In this case, the applicant (ASIC) says that the respondents have, in promoting a machine said to run solely on the power of magnets, engaged in misleading and deceptive conduct and have otherwise breached legislative provisions regulating fund raising by corporations. That simple description might lead one to the quick conclusion that the promotion of a "perpetual motion" machine must fall into the ‘misleading and deceptive’ basket, but looks can be deceptive in more than one way and the statutory remedies are not to be employed without careful scrutiny of what a promoter actually says and does.

The provisions of the Corporations Act 2001 (the Act) which deal with misleading and deceptive conduct are not designed as a complete shield to protect individuals against their own avarice or cupidity. Just as people will continue to play games of chance in casinos (knowing that the odds are in favour of the house) or buy tickets in lotteries (knowing that the chance of winning is one in many millions) so people will continue to chance their money in investments which, to others, appear far too risky. They sometimes adopt the attitude of one of the deponents whose affidavit was relied upon by ASIC – they see the investment as a bit of a gamble.
ASIC alleged that the promoters contravened the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth).

One of the promoters was asked "just explain to me how that engine works" -
A. .... The magnetic engine works wholly and solely with the attraction repulsion of permanent magnets. The objective of it is to produce an engine that doesn't require external input, either electrical or fuel. It's so that the engine runs purely on the attraction and repulsion of permanent magnets. In its geometric configuration that does not try to challenge perpetual motion but to use mechanical advantage.

Q. So it doesn't require any input or any source from an external battery system –

A. That’s correct.

Q. -- or any back up electricity or anything like that. It's just a self propelling engine run on magnets; is that right?

A. That's correct.
In the 2010 judgement the Court noted that engineers who gave expert evidence indicated that -
The proposed permanent magnet motor would comprise a perpetual motion machine.

The aim of using permanent magnets to produce power, to propel motor vehicles or conventional industrial machines cannot be achieved.

... The hope of making an engine that will operate purely on magnets is forlorn. ... The faith in an engine operated purely by magnets has been founded on quasi scientific reports that give an illusion of being erudite but never quite close the loop on being comprehensible.