24 June 2011


From the NY Times coverage in 1982 of the National Science Foundation Teletext and Videotex in the United States report, under the heading 'Study Says Technology Could Transform Society' -
A report commissioned by the National Science Foundation and made public today [13 June] speculates that by the end of this century electronic information technology will have transformed American home, business, manufacturing, school, family and political life.

The report suggests that one-way and two-way home information systems, called teletext and videotex, will penetrate deeply into daily life, with an effect on society as profound as those of the automobile and commercial television earlier in this century.

It conjured a vision, at once appealing and threatening, of a style of life defined and controlled by videotex terminals throughout the house.

As a consequence, the report envisioned this kind of American home by the year 1998:
Family life is not limited to meals, weekend outings, and once-a-year vacations. Instead of being the glue that holds things together so that family members can do all those other things they're expected to do - like work, school, and community gatherings -the family is the unit that does those other things, and the home is the place where they get done. Like the term 'cottage industry,' this view might seem to reflect a previous era when family trades were passed down from generation to generation, and children apprenticed to their parents. In the 'electronic cottage,' however, one electronic 'tool kit' can support many information production trades.
It continues that -
Privacy Issues Seen Posed

The report warned that the new technology would raise difficult issues of privacy and control that will have to be addressed soon to "maximize its benefits and minimize its threats to society." ...

The study focused on the emerging videotex industry, formed by the marriage of two older technologies, communications and computing. It estimated that 40 percent of American households will have two-way videotex service by the end of the century. By comparison, it took television 16 years to penetrate 90 percent of households from the time commercial service was begun.

Opportunities for Abuse

The "key driving force" controlling the speed of videotex penetration, the report said, is the extent to which advertisers can be persuaded to use it, reducing the cost of the service to subscribers.

But for all the potential benefits the new technology may bring, the report said, there will be unpleasant "trade offs" in "control".

"Videotex systems create opportunities for individuals to exercise much greater choice over the information available to them," the researchers wrote. "Individuals may be able to use videotex systems to create their own newspapers, design their own curricula, compile their own consumer guides.

"On the other hand, because of the complexity and sophistication of these systems, they create new dangers of manipulation or social engineering, either for political or economic gain. Similarly, at the same time that these systems will bring a greatly increased flow of information and services into the home, they will also carry a stream of information out of the home about the preferences and behavior of its occupants."

Social Side Effects

The report stressed what it called "transformative effects" of the new technology, the largely unintended and unanticipated social side effects. "Television, for example, was developed to provide entertainment for mass audiences but the extent of its social and psychological side effects on children and adults was never planned for," the report said. "The mass-produced automobile has impacted on city design, allocation of recreation time, environmental policy, and the design of hospital emergency room facilities."

Such effects, it added, were likely to become apparent in home and family life, in the consumer marketplace, in the business office and in politics.

Widespread penetration of the technology, it said, would mean, among other things, these developments:
- The home will double as a place of employment, with men and women conducting much of their work at the computer terminal. This will affect both the architecture and location of the home. It will also blur the distinction between places of residence and places of business, with uncertain effects on zoning, travel patterns and neighborhoods.

- Home-based shopping will permit consumers to control manufacturing directly, ordering exactly what they need for "production on demand."

- There will be a shift away from conventional workplace and school socialization. Friends, peer groups and alliances will be determined electronically, creating classes of people based on interests and skills rather than age and social class.

- A new profession of information "brokers" and "managers" will emerge, serving as "gatekeepers," monitoring politicians and corporations and selectively releasing information to interested parties.

- The "extended family" might be recreated if the elderly can support themselves through electronic homework, making them more desirable to have around.

Attribution and the film factory

'The Role of Private Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000' by Catherine Fisk in 32 Berkeley Journal of Employment and Labor Law (2011) offers a history of screen credit and the Writers Guild of America focused on "the union’s administration of private intellectual property rights to facilitate the labor market for writers and the market for ideas, scripts, and treatments for film and TV".

Fisk comments that -
Screen credit is one of the very few forms of intellectual property in the modern economy that is designed by workers for workers and without the involvement of the corporations that control most intellectual property policy. Based on research in the archives of the Writers Guild not available to the public, this article argues that the Guild survived conditions that might lead to de-unionization because of the value it provides writers and employers in managing markets for labor and ideas. In particular, the Writers Guild administers two private intellectual property rights systems – the screen credit system and the script registry – that facilitate transactions between writers and producers. The experience of the Guild suggests that under the right circumstances unions can support innovation by creative private intellectual property rights systems to address structural problems in labor markets for talented short-term workers and the start-up.
She concludes that -
The Guild is virtually unique in American letters in having a democratic and worker-controlled process for deciding the meaning of authorship and administering private intellectual property rights that turn on authorship. Hollywood writers sometimes perceive themselves caught in a squeeze between the work for hire doctrine, on the one hand, and the director-auteur theory of film, on the other. That is, corporations are deemed the legal authors of motion pictures and directors are deemed the factual authors. Film theorists have written critically, especially lately, about the ways in which the auteur theory obscures important information about the labor of production, and also about how the auteur dynamic enhanced the power of directors at the expense of other talent, especially below-the-line talent.214 Movie and television production companies have established themselves as the only legal authors of movies and television programs. They have also sought, in many ways, to be perceived as the factual authors in the wider culture, except to the extent that acknowledging individual contributions is good for business in a celebrity-obsessed culture. Through control of screen credit and the compensation that turn on it, the Writers Guild has created a system of private intellectual property rights that is as important as copyright to the operation of both labor and product markets in Hollywood. It is a unique system of private ordering that underlies a multi-billion dollar industry. And it is a system that has operated for decades with virtually no judicial or legislative intervention.

While the credit determination process had significant procedural and substantive elements from its creation in the 1940s, it has grown more elaborate both procedurally and substantively as most writers in Hollywood lost their status as employees of large, vertically-integrated studios and became (along with most other talent and craft workers) short-term, project-based employees of one-off production companies. The increase in legal complexity was a result of the increasing financial significance of credit; the more that came to be at stake in credit determinations, the more the Guild added procedural protections and substantive nuance. Legalism offers the union the shelter of procedural fairness as it decides the zero-sum question of which of its members will receive the considerable financial benefits that flow from credit. And the very limited judicial review of the Guild’s administration of the system reinforces the tendency toward legalism. Under the duty of fair representation, the Guild’s determination will be final and the Guild will not be subject to damages so long as its determinations are not arbitrary, discriminatory, or in bad faith, which is a substantial financial incentive for the Guild to use a process with all the trappings of the rule of law.

Amidst the half-century decline of labor unions, this control over valuable private intellectual property rights has enabled the Writers Guild to remain vibrant and influential. The rise of flexible production in Hollywood and the transformation of Hollywood labor and product markets could have destroyed the WGA but did not. Whereas other United States industries (manufacturing, telecommunications, and raw material extraction and processing) experienced de-unionization followed by drastic job-restructuring and labor market change, Hollywood experienced drastic job-restructuring and labor market change without the de-unionization. The Guild survived in part because its governance of the screen credit system helped it adapt to the changed employment relationship and helped it facilitate transactions between writers and studios and production companies. As motion pictures and television programs became ever more expensive to produce in the era of blockbuster films and television, the individual hiring contracts to provide writing services and contracts to acquire literary properties became more complicated and more high-stakes. Screen credit and the rights that flow from it reduced transactions costs and helped to organize a market that might otherwise have seemed hopelessly diffuse and confusing. The script registry facilitates the rapid and widespread sharing of ideas in a sector in which fears of idea theft and copyright litigation might otherwise deter sharing by writers or shopping by companies.

Although it seems clear that the WGA has done a great deal for writers and studios in the 75 years of its existence, it is not at all clear whether it will be able to negotiate the difficult times ahead. As many have remarked, content creators are in for tough times as new media have made distribution ever cheaper and easier while content creation remains slow and expensive. About half of major motion pictures and a substantial amount of television programming produced in the U.S. are done outside the WGA’s jurisdiction. The WGA is trying to organize growth sectors (video game production) but has not yet succeeded. The downward pressure on production costs generated by the war between content providers and new media distributors can be expected to increase pressure on companies to produce non-union unless the WGA is able to adapt.

The story is obviously not over. What the experience of the past suggests, however, is that private intellectual property rights regimes have played a substantial and generally constructive role in the markets for labor and for ideas and that the Guild has been able to solve the coordination problems necessary to make private IP rights systems function relatively efficiently. The Guild has both facilitated contracts and provided the institutional support to enable administration of private rights.

It may be that neither workers nor employers in other similar labor and product markets (such as video game and software development, and the development of other new media products and platforms) would be interested in establishing a union like the Guild. Path dependence is certainly a big part of the story of Hollywood. Writers unionized in an era when lots of educated (and uneducated) workers thought that unions were good. The culture of unionism that they created is easier to hand down to new generations than to create from scratch among a group of people who cannot imagine how a union could facilitate individual or collective negotiations or administer intellectual property rights. But to the extent that people think that knowledge workers never want unions and cannot benefit from them, or that unions have no role to play in the knowledge economy, the history of the Writers Guild teaches otherwise.

23 June 2011


The High Court in Wainohu v New South Wales [2011] HCA 24 has ruled that the Crimes (Criminal Organisations Control) Act 2009 (NSW) - counterpart of the South Australian statute considered in Totani - is invalid as it undermines the institutional integrity of the NSW Supreme Court of New South Wales and is outside the legislative powers of the NSW Parliament.

French CJ and Kiefel J in their judgment note that under the NSW Act an eligible NSW judge may make a determination under Pt 2 of the Act on the basis of -
information and submissions, without regard to the rules of evidence, partly based on information and submissions not able to be disclosed to the organisation or its members, and with no obligation to provide reasons for the determination which is made. The Act thus provides for the enlistment of judges of the Supreme Court to determine applications for declarations using processes which, if adopted by the Court itself, would be repugnant to the judicial function.

The making of a declaration by an eligible judge is a necessary condition for the exercise by the Court of its jurisdiction to make a control order. It is well established that a State legislature, untrammelled by a doctrine of separation of powers derived from the Constitution of the State, can confer administrative functions on a court of the State or on judges of the court. It cannot confer administrative functions on a court which are incompatible with the court's essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides. Nor, as is explained in these reasons, can a State legislature confer upon judges of a State court administrative functions which substantially impair its essential and defining characteristics as a court. The Act effects such an impairment. It does so because it provides, in effect, that the jurisdiction of the Supreme Court to make control orders against members of an organisation will be enlivened by a decision of a judge of the Court, after an adversarial proceeding, on complex and important matters of fact, for which the Act provides that no reasons need be given. The Act also creates an impression of a connection between the performance of a non-judicial function and the following exercise of judicial power, such that the performance of that function may affect perceptions of the judge, and of the court of which he or she is a member, to the detriment of that court. The plaintiff's challenge to the validity of the Act should succeed.
Undeterred by more bad news after the Totani decision, noted here, the SA Attorney-General John Rau is reported as commenting that he remains committed to implementing OMG law based on restriction of association.
The question is how you get those orders? New South Wales, I emphasise, used a completely different methodology to get those orders and the High Court has said that methodology was flawed as well
SA Opposition justice spokesman Stephen Wade is reported as commenting that the South Australian Government should make a thorough reassessment of its organised crime legislation -
It's about time we asked ourselves the question 'Is it better to waste money in futile High Court challenges or is it better to get in back into the parliament and make laws that are well within our legal and constitutional power and get in and fight organised crime?
Wainohu, a member of the Hells Angels Motorcycle Club, had challenged the validity of an application by the Ag NSW Police Commissioner to a Judge of the NSW Supreme Court for an administrative declaration under Part 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the Act") regarding the Club. That declaration wouldf provide the basis under Part 3 of the Act for the Supreme Court - on application by the Commissioner of Police - to make control orders against individual members of the Club. Those orders would make it an offence for specified members to associate with each other and would bar from certain classes of business and occupation.

French and Kiefel note the legitimacy of anti-association legislation that is aimed at addressing "the incidence and sophistication of what is generally called 'organised crime'". That must however -
be pursued within the framework of the Constitution so as to maintain the integrity, independence and authority of the courts that may be required to determine whether persons charged with offences under federal, State or Territory laws are guilty of those offences, and to punish them if they are.
Wainohu attacked the validity of the Act regarding -
• the functions it confers on eligible judges including the provisions for private hearings in relation to criminal intelligence and protected submissions; and

• the functions it confers on the Supreme Court in relation to the making of interim control orders and control orders and particularly the obligation to maintain, as against the person affected by such applications, the confidentiality of criminal intelligence and protected submissions.

Those functions are said to undermine the institutional integrity and independence of the Court.

The plaintiff also claims that the Act infringes implied constitutional freedoms of political communication and political association.
In considering the claims French and Kiefel commented that -
Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term "institutional integrity", applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court's independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution. ...

It is not within the power of a State legislature to enact a law conferring upon courts which have or can have federal jurisdiction conferred upon them functions incompatible with the role of such courts under Ch III of the Constitution as repositories of federal jurisdiction. A function conferred upon a court which substantially impairs the institutional integrity of the court has that effect. ...

The principle in Kable also leads to the conclusion that a State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member. Although the function may be conferred upon the judge in his or her capacity as an individual, the statute may create a close connection and therefore an association with the person's role as a judge. Where this is the case, the potential for incompatibility of the non-judicial function is brought more sharply into focus. The question which then arises is whether the performance of that function would impair the defining characteristics of that court. It is that question with which the Court is concerned in this case.
Gummow, Hayne, Crennan and Bell JJ stated that Wainohu -
submitted a range of further arguments as to why the Act was invalid, in particular by reference to the provisions of Pt 3 and the exercise of jurisdiction thereunder by the Supreme Court. These submissions should not be accepted, noting in particular the following.

First, the conferral of jurisdiction on the Supreme Court under Pt 3 by ss 14(1) and 14(3) is to be understood as bringing with it the usual incidents of the exercise of jurisdiction by the Supreme Court and these are not excluded by a "distinct regime" of the nature considered in International Finance Trust Co Ltd v New South Wales Crime Commission. Secondly, an eligible Judge who has made a declaration under Pt 2 may be recused from the subsequent exercise of the jurisdiction of the Supreme Court under Pt 3. Thirdly, while the Act does not attempt to prescribe what might be "sufficient grounds" for the making of a control order (s 19(1)(b)), these must be ascertained by regard to the subject, scope and purpose of the Act including the consequences of the making of an interim control order or control order; there are numerous authorities establishing that the conferral of curial powers by reference to such criteria nevertheless may be susceptible to the exercise of judicial power. Fourthly, the regime created by Div 2 of Pt 3 for the making of control orders significantly differs from the provision in s 14(1) of the South Australian legislation held invalid in South Australia v Totani: there is no obligation imposed upon the Supreme Court to make an order upon the basis of the anterior declaration made by an eligible Judge.

The plaintiff also attacked the validity of the Act for exceeding the constraint upon State legislative power said to be derived from implications in the Constitution respecting political communication and freedom of association. Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply.

Further, the Act is not directed at political communication or association. With respect to control orders, special provision for exemption is made by the Act. If in the opinion of the Supreme Court the circumstances of the case require, a person may be exempted from the prohibition upon association imposed by s 26 to the extent and subject to the conditions specified in the control order pursuant to s 19(7). The provision in s 19(7) permits the restriction of control orders so as not unreasonably to burden freedom of political communication; the power of the Supreme Court to make a control order should be construed conformably with the implied freedom so as to render reviewable for error any particular order which exceeded the limit of the implied freedom. No provision for exemption is made for interim control orders; but, as the Commonwealth submitted, even if the result was in some circumstances to burden the implied freedom, the question would then be whether the Act nevertheless in this respect served a legitimate end of protection against the activities of criminal organisations and their members.

Disability construction

'Disability Trouble' by Bradley Areheart in 29 Yale Law & Policy Review (2011) 347-388 argues that -
In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.

An almost identical binary exists for disability, the disablement/ impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability.

In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble. ...

Disability scholarship is now in a critical stage. Theoretically, work on disability is young and entering a second wave of critical development. Jurisprudentially, disability is at a pivotal stage as courts prepare to reinterpret the provisions of the ADA in light of recent amendments. It is both timely and appropriate to rethink the meaning of disability, and this requires attention to the core explanatory construct in disability theory: the disability binary.

This Article advances the conversation about disability identity in a way that is attentive to related areas of scholarship, especially feminist work on the gender/sex binary. In this way, disability scholarship may draw on the richness of others’ contributions and avoid wheel-reinventing. There are legal implications to rethinking disability identity, and this Article identifies several of them. Hopefully, scholars and activists will build upon these insights to further bridge disability theory and practice.

Witch and Secession

Last year I noted the delightful claim by self-described witch Eilish De Avalon that she was "from another world" and therefore wasn't subject to mundane traffic law. She was reported by the Geelong Herald as telling a traffic policeman that "Your laws and penalties don't apply to me. I'm not accepting them, I'm sorry, I must go, thank you" before dragging him down the road for 200 metres. Presumably he was lucky not to be turned into a frog.

Last year she was sentenced to two months imprisonment, with a further four months suspended, apparently having pleaded guilty to recklessly causing serious injury and dangerous driving. There seems to have been no penalty for driving without a licence.

That's puzzling if we believe the fulsome claims on her website, which indicate that she claims some prowess in clairvoyance (surely she foresaw the meeting with a member of the Victorian Police and a question or two in court).
I come from a long line of Hungarian/Transylvanian intuitive clairvoyants and I've been psychic all my life. I am clairvoyant, clairaudient and clairsentient which means I have psychic vision, hearing and feeling and can see auras, spirits and can communicate with them too. ...

I have consulted famous people, helped police in their missing persons/homicide investigations and often commune with deceased loved ones in the spirit world because I am a gifted spirit medium too. ... My six month previews are also very popular. I'm an eerily accurate, profound clairvoyant and I invite you to have a reading with me, if you are not happy, you don't have to pay!
The oh so talented De Avalon offers "healing services" -
I am an experienced advanced spiritual healer, Reiki Master, colour therapist, chakra and auric diagnostician and can help when you are feeling out of kilter but can't put your finger on the imbalance or when you just feel like a pick-me-up. I also do clearings of a more serious nature when entity removals are needed or when the soul is fragmented when your power has been given away or taken from you.

Spiritual healings are particularly powerful as preventative medicine, realigning and changing the auric frequencies around the physical body before they manifest into physical imbalances and illnesses. They can help cut ties with old fears, phobias, traumas balancing the body, mind and spirit, in a holistic, non invasive way. I can also assist you in breaking of old habits or letting go of things that are holding you back from moving on with your life.

Spiritual Healing is cross-dimensional healing, it can help heal deep spiritual wounds, imbalances and scars from past lives, from current lives and post lives right down to the subcellular level, whatever the person's own belief system. This subtle yet powerful form of healing actually is a process of me, the "healer" facilitating your own healing and internal balance by channelling you energy that allows for the movement of chi and unclearing blockages and shadows within the system.

Scanning the body with the palm of my hand with closed physical eyes, my inbuilt spiritual "radar" can detect imbalances and feel energy distortions and irregularities that are too subtle to detect by any other conventional means, these distortions can be found in the physical body or any of the seven auric layers outside of the physical body that vibrate at more and more refined frequencies the further away they are from the body. But the important thing to remember is, you don't have to understand the metaphysical nuts and bolts of spiritual healing to benefit from it's effects.

I use many levels of treatment in spiritual healing: hands-on healing, Reiki symbols, crystal therapy grids, homeopathy, colour, sound, smudging and other spiritual practises to balance mind, body and soul.

I also may invoke and invite any spiritual guides, Master healers and teachers, angelic beings, gods/goddesses that wish to be present in the temple during the time of the healing, and often, they work through me and assist me with deeper levels of healing, as I channel love and light through my body into the client's energetic body, which in turn tunes the physical body and aligns it to assist in it's own healing. ...

The room can often feel as if there are more present than just myself and the client. I assure you there is nothing to fear, as the room is energetically protected, the ground consecrated as sacred, and only the highest beings of love, light and creation are admitted to assist me with healing the client. You may have visions, or you may just zone-out and experience a deep feeling of surrender and relaxation, the only thing I ask is that you come with an open heart and mind and trust in the power of this sacred age-old technique of laying on of the hands.
De Avalon appealed against the sentence, which has now been reimposed by Judge Geoffrey Chettle. The ABC reports that she responded "I decline your offer, Your Honour". Unsurprisingly, the comment by Judge Chettle was "You decline my offer? I'm sorry, it's not negotiable." The Geelong Advertiser notes that
The court was told De Avalon displayed her remorse by asking the injured policeman if she could offer him spiritual healing and massage and could not understand why he declined her proposition.
No understanding? Presumably her spirit guides were out of sync.

Given that practitioners of the dark arts are not allowed to take their broomstick and cat into a state correctional facility I suspect that De Avalon will be out of circulation for some time. Bad news for people who want a De Avalon ceremony. She is described in the Witchvox professional directory [sic] as -
High Priestess of the Order of Avalon, Eilish De Avalon
• Authorised Civil Marriage Celebrant A6762 and initiated Pagan Priestess available for all your rites of passage.
• Handfastings
• Handpartings
• Bridal Showers including henna and belly dancing nights
• Goddess Baby Showers
• Birthing Circle rituals
• Wiccanings/Pagan naming ceremonies
• Menarche and teenage boys rites of passage to manhood
• Transexual/intersexual reclaiming of gender ceremonies
• Commitment ceremonies for Gay, Lesbian, Bisexual, Polyamorous, Transexual & Intersexual unions
• Croning Ceremonies
• Death Bed Rituals
• Funeral Rites including pyres and viking funerals, special conditions apply.
Can't go wrong, it seems, with your own Order ... except when you put a policeman into hospital.

Similarly unpersuasive claims that the state's law does not apply were evident in Williamson v Hodgson [2010] WASC 95, an appeal over a speeding conviction.

The judgment indicates -
By a prosecution notice dated 13 January 2009 Mr Williamson was charged with driving his vehicle in excess of the speed limit contrary to r 11(3) of the Road Traffic Code 2000 (WA). The charge was heard by the learned magistrate on 23 June 2009. Mr Williamson was found guilty and fined $75 and ordered to pay costs of $114.20. The facts of the case are very simple and not in dispute. They were in fact all admitted by Mr Williamson at the hearing. On 17 February 2008 Mr Williamson was driving his vehicle on a road in Glen Forrest. A radar device recorded the vehicle travelling at 89 km per hour in an 80 km per hour speed zone. Despite these admissions Mr Williamson maintained he was not guilty of the offence.
It goes on to note
Mr Williamson submitted that the provisions of the Road Traffic Act 1974 (WA), and I will assume the Road Traffic Code, are unlawful because, he says, they are inconsistent with the United Nations International Covenant on Civil and Political Rights (UN Covenant). Australia is a party to the UN Covenant but it has not been incorporated into Australian law and does not operate as a direct source of individual rights and obligations under that law.
The position is simply stated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, where at 286 - 287 Mason CJ and Deane J said:
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive.
So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.
Mr Williamson submitted that s 58A and s 102A of the Road Traffic Act are inconsistent with the UN Covenant. In brief terms, these sections provide that when an infringement notice is left on a vehicle, the licence holder of that vehicle, called the responsible person, is deemed responsible for that infringement notice unless he or she informs the police of the identity of the infringing driver. Moreover, a responsible person, if requested by a police officer to give information about the driver, commits an offence if that driver fails to make reasonable measures to comply with the request.
With respect, Mr Williamson's submission on this point is misconceived. First, the provisions are not inconsistent with the UN Covenant. Second, even if they were the inconsistency does not make every provision in the Road Traffic Act and the Road Traffic Code invalid. Third, Mr Williamson was not charged as a responsible person. He was identified as the driver and admitted that he was. Fourth, the UN Covenant is not in any event part of the law to be applied in the case by the learned magistrate. This submission cannot succeed. ...
Alleged secession
Mr Williamson claims to have seceded from the Commonwealth of Australia and that he is not subject to the Road Traffic Code. He said today that the UN Covenant has given him this right. With respect to Mr Williamson, this is a misinterpretation of this document.
The only lawful means by which land ceases to become a part of the state is set out in s 123 of the Commonwealth Constitution. The procedure described in this section has not been followed. Mr Williamson, or more correctly the land he has some connection with, has not lawfully seceded. Even if some part of the state to which Mr Williamson occupies had seceded, Glen Forest where Mr Williamson's driving occurred, remained part of Western Australia.
Any person whether a citizen of Western Australia or somewhere else is liable to abide by the laws of Western Australia including its road traffic laws. This ground has no merit.
Alleged invalidity of the Magistrates Court
Mr Williamson submitted today that the Magistrates Court did not have the lawful authority to try him since the passing of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (the Act).
Broadly speaking, the Act changed references from the Crown and Her Majesty in the statutory law of Western Australia to the State and the Governor. As I understood Mr Williamson's submissions, the Act unlawfully effects an amendment of the State Constitution as to the authority of the Crown and the Monarch. The consequence of this, he says, is that courts sitting under the name of the State, such as the Magistrates Court, are invalid and their decisions are also invalid.
This submission has been put to and comprehensively rejected by the Court of Appeal on several occasions. I am bound by those decisions, but it is not simply a matter of following precedent. Those decisions are undoubtedly correct. The Act does no more than change the terminology used in many statutes. It does not and could not amend the State Constitution. Even if it unlawfully amended the State Constitution, this would not invalidate a court's powers or a court's judgment or order . As to this see Glew v Shire of Greenough [2006] WASCA 260 [16], [20]; Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; and Glew v The Governor of Western Australia [2009] WASC 14. This submission has no merit.
Alleged invalidity of prosecuting entity
Another submission made today in the course of argument was that the entity who issued Mr Williamson with the infringement notice had an Australian business number or ABN. Mr Williamson submitted that he was therefore being prosecuted by a corporation and not the police.
A person or entity does not become a corporation because that person or entity has an ABN. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover above a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN.
An ABN holder may be an individual, a corporation, a partnership or government entity. It is not necessary that the entity be engaged in a profit-making venture. It is irrelevant to the validity of the infringement notice or any subsequent prosecution that the entity who issued the infringement notice had an ABN. In any event Mr Williamson was not dealt with under the infringement notice provisions of the Road Traffic Act. He was dealt with in Court. The prosecution was initiated by a police officer, a person who had the relevant authority to prosecute Mr Williamson. This ground has no merit.
Overall, nice try but no cigar.

22 June 2011

Sexing the law

Two articles from (2011) 14(3) Sexualities  ...

'Forming sexualities as judicial virtues' by Leslie Moran at 273-289 explores -
the formation of sexuality in the institution of the judiciary. Its object of study is an archive made up of the texts of swearing in ceremonies of newly appointed judges of the Supreme Court of New South Wales, Australia. The texts, records of public events, demonstrate a remarkable consistency of general content and tone. They take the form of what might best be described as life writing (biography and autobiography). They have a strong hagiographic quality. Dedicated to writing the life of the newly appointed judge, they are a particular form of life writing devoted to the portrayal of state officials. As such they have a double function formulating and fashioning the subject not only as an exemplary individual life but also as a subject that embodies the virtues of the judicial institution. Each swearing-in document offers a textual portrait that makes and makes public the values and virtues of the institution of the judge. An important context for this study is an earlier empirical research project on sexual diversity in the judiciary. Key informants in that research advised me that sexuality was unlike the other strands of diversity. It was described as a personal and a private matter: strictly extra judicial. The primary objective of this essay is to explore how, if at all, sexuality is made in these public judicial ceremonies and texts, and more specifically, how the subject’s sexuality is figured as an institutional ideal, as a judicial virtue. In undertaking this task the analysis will also examine some aspects of the role of gender in the formation of the judicial subject as a sexual subject.
'Sexualizing the child: The strange case of Bill Henson, his ‘absolutely revolting’ images and the law of childhood innocence' by Brian Simpson at 290-311 notes that -
In 2008 internationally acclaimed Australian photographer Bill Henson planned to exhibit some of his work at a Sydney Gallery. This included photographs of a naked 12-year-old child. When one image was used in publicity to promote the exhibition it came to the attention of the organizer of a child advocacy group who complained to police that the image constituted child pornography. The subsequent seizing of the images gave rise to a community debate about artistic freedom, what constitutes child pornography and the capacity of children to consent. Although these events coincidentally occurred at the same time as a Senate inquiry into the sexualization of children in the media, the issue of childhood sexuality was a muted aspect of the ensuing public debate. ...

Much of the public debate that occurred after the reporting of Henson’s images to the police centred on the issue of free artistic expression and the point that for centuries the naked body (including the child’s) had been the subject of art (Marr, 2008: 129–130) versus the appropriateness of exhibiting naked images of children which might be used by paedophiles for their sexual titillation. There was also some debate about whether a child could consent to being photographed naked, and whether the parents could validly consent on the child’s behalf. But for the most part there was little direct engagement with the ambiguity of childhood that Henson’s work represents. It is my argument that the issues of childhood sexuality raised by Henson’s work lead logically to the complaints made against him as they feed into the anxieties held by many about the meaning of childhood and children’s sexuality. At the same time those who defended him tended to avoid the issue of childhood sexuality raised by his work in preference to more orthodox stances based on artistic freedom and denials that the images were sexual at all. ...

In all the debates about the Henson images the matter of childhood sexuality was side-stepped by all concerned. Few suggested that children had agency in these matters, nor did the rights of the child, including to be sexually educated, figure much in debates. One might be forgiven for agreeing with Kincaid that it was as if everyone wanted to maintain the child’s innocence to increase the allure of the sexual context in which the images were portrayed by some. But what may instead unite both sides of the debate is the investment that all adults have placed in children, and a consequent reluctance to empower children and acknowledge their autonomy rights. This was a controversy very much controlled by adults and articulated in accordance with their competing anxieties on both sides.

Raising the bar

The Minister for Innovation, Industry, Science & Research has introduced the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (Cth) in the Senate.

That Bill was the subject of consultations noted earlier this year and is meant to "make improvements to IP rights legislation to better meet the objectives".

Amendments in the Bill cover the Patents Act 1990 (Cth), the Trade Marks Act 1995 (Cth), the Copyright Act 1968 (Cth), the Designs Act 2003 (Cth) and the Plant Breeder’s Rights Act 1994 (Cth), corresponding to six schedules -
S1 - Raising the quality of granted patents
S2 - Free access to patented inventions for regulatory approvals and research
S3 - Reducing delays in resolution of patent and trade mark applications
S4 - Assisting the operations of the IP profession
S5 - Improving mechanisms for trade mark and copyright enforcement
S6 - Simplifying the IP system
The 150 page Explanatory Memo outlines the Bill as follows -
Schedule 1: Raising the quality of granted patents

In order to meet its objective of supporting innovation, the patent system must strike a balance. It must provide sufficient protection to reward innovation, but not so much protection as to block future or follow-on innovation. Concerns have been raised that the thresholds set for the grant of a patent in Australia are too low, suppressing competition and discouraging follow-on innovation. Particular concerns have been raised that patents are granted for inventions that are not sufficiently inventive, and that the details of inventions are not sufficiently disclosed to the public.

These concerns were recognised in the 2008 review of the national innovation system Venturous Australia and the Government’s response to this review: Powering Ideas: the innovation agenda for the 21st century.

The Bill amends the Patents Act to address four key areas of patentability.

First, the Bill amends the Patents Act to remove restrictions on the information and background knowledge taken into account when assessing whether an application is sufficiently inventive to justify a patent. This will raise the standard set for inventive step in Australia to a level that is more consistent with standards set in our major trading partners.

Secondly, the amendments bolster the requirement that a patented invention be useful: that is, that the invention works in the way that the patent says it does and that the specification explains how the invention works. The amendments strengthen this requirement to prevent the grant of patents for speculative inventions that require too much further work before they can be put into practice.

Thirdly, the Bill raises the standards set for disclosure of an invention. A patent is a compact between an inventor and the state: in exchange for a time-limited exclusive right to exploit an invention, a patentee must give the public sufficient information to make and use the invention. In this way the patentee is rewarded for what they have done and the public has access to the information necessary to conduct follow-on innovation and to make and use the invention once the patent has expired. The amendments address circumstances where the information disclosed in a patent specification, although sufficient to make one thing within the scope of each claim, is not sufficient to make the invention across the full scope of each claim. The changes ensure that granted patents are no broader than the invention which has been disclosed.

Fourthly, the Bill amends the Patents Act to increase certainty in the validity of granted patents. Currently, the Commissioner is limited in the grounds she can consider when deciding whether to grant a patent, or whether to revoke a patent after re-examination. In contrast the courts can consider a wider range of grounds. As a consequence, a patent correctly granted by the Commissioner may be subsequently found invalid by the courts. The change will expand the grounds that the Commissioner can consider, and apply a consistent standard of proof across all grounds, so that the Commissioner is not obliged to grant patents which would not pass scrutiny in a court challenge.

Schedule 2: Free access to patented inventions for regulatory approvals and research

The patent system grants exclusive rights to commercialise and exploit inventions free of competition. Research, as such, does not affect this. However, currently there is no statutory provision clarifying researchers’ freedom to conduct experiments and there is uncertainty about the scope of any existing common law protection. This leads to inefficiencies in research. Researchers are discouraged from taking up new lines of research where there is uncertainty about their liability for patent infringement. Uncertainty also leads to researchers expending effort and expense on seeking advice, where they have concerns about how their experiments intersect with the patent system.

The Bill amends the Patents Act to draw a line between research and commercial activities, leaving researchers free to conduct their experiments without worrying about the patent system. The amendments are designed to clarify that research and experimental activities relating to patented inventions are exempt from infringement, whereas commercial activities are not. The intent is to give broad and clear protection to research and experimental activities in order to maximise the potential for research in Australia.

The Bill also introduces an exemption for activities undertaken solely for the purpose of gaining regulatory approval to market or manufacture a patented technology. This expands the existing exemption for pharmaceutical inventions to all technologies; recognising that technologies other than pharmaceuticals may also suffer delays in bringing products to market as a consequence of lengthy pre-market and pre-manufacturing regulatory approval processes.

Schedule 3: Reducing delays in resolution of patent and trade mark applications

The patent and trade mark systems also need to strike a balance between giving sufficient time to get applications in order for grant or registration and minimising delays in giving certainty about whether a right will be granted, and what scope that right will have.

Two elements of the current patents and trade marks systems, in particular, lend themselves to lengthy delays in applications proceeding to grant or registration. These are patents and trade marks opposition proceedings and divisional patent applications (which occur when part of an application is divided out into a new application). Currently opportunities exist for a party, usually an applicant but sometimes also a competitor, to substantially delay finalisation of these elements. Delay may suit the party, but it is not in the interests of the public, or the party’s competitors.

The Bill amends the Patents and Trade Marks Acts to refine opposition proceedings to better meet their intended purpose as a means for settling disputes quickly and inexpensively. The Bill also amends the Patents Act to tighten the timeframes within which divisional applications can be filed, reducing opportunities for abusive use of these types of application.

Schedule 4: Assisting the operations of the IP profession

Patent and trade mark attorneys play a valuable role in assisting businesses and innovators to negotiate the IP system and protect their good ideas. Currently, there are anomalies between the ways in which patent and trade mark attorneys can conduct their business and the ways in which other professionals can operate, specifically the legal profession. The Bill amends the Patents and Trade Marks Acts to allow attorneys to incorporate and to extend to client-attorney communications the same privilege as currently exists for communications between a lawyer and their client. The changes will help patent and trade mark attorneys deliver professional high quality services to their clients.

Schedule 5: Improving mechanisms for trade mark and copyright enforcement

Effective enforcement of trade marks and copyright is a significant issue for rights owners, who have worked to establish their brand in the marketplace and do not want to see others take unfair advantage of their hard work. Stakeholders have raised concerns that the penalties for trade mark counterfeiting are lower than those for copyright infringement and insufficient to deter infringers. Concerns have also been raised that the current system for confiscating imported counterfeit trade mark and copyright goods is inadequate. The Bill amends the Trade Marks and Copyright Acts to bolster the penalties for trade mark infringement and to improve the system for confiscating counterfeit goods.

Schedule 6: Simplifying the IP system

An ever present challenge for the IP rights system is to balance the level of complexity necessary to ensure a robust system with the need for the system to be accessible and cost effective to a wide range of users.

The Bill amends the Patents, Trade Marks, Designs and Plant Breeder’s Rights Acts to implement a number of fixes to the system to remove procedural hurdles, streamline processes and make improvements to ensure that the system is fit for purpose in an increasingly electronic and globalised business environment.

Waldron on law and property

Jeremy Waldron's The Rule of Law and the Measure of Property: The 2011 Hamlyn Lectures are now available on SSRN.

The three lectures are -
1 The Classical Lockean Picture and its Difficulties
2 Unraveling the Form and Substance of Property
3 The Rule of Law, Property, and Legislation
Waldron notes that -
The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, in particular in a way that reflects realistic understanding of how property rights are created and modified. I use the Lockean phrase "the measure of property" but the gist of my argument will be that our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law.
In discussing Rule of Law (with a reference to Dworkin's Justice For Hedgehogs, recently noted here) he comments that -
The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize their economies around free markets and private property, and we want them to be governed in accordance with the Rule of Law. But constellations can deceive us. The juxtaposition of stars in a constellation is not necessarily indicative of their proximity to one another. Their apparent proximity may just be an artifact of where they present themselves in our visual field — the sky, as we call it, which for us is basically two-dimensional even though in astronomical fact it reaches in a third dimension away from us almost to infinity.

And so too in the constellation of our ideals. We think of democracy and the Rule of Law or human rights and the Rule of Law as close, even overlapping ideals. But it may be important to maintain a sense of the distance between them. There are multiple ways in which we evaluate social and political systems, multiple ways in which social and political structures may respond to or excite our concerns, and unless we buy into a very general holism — something like the position put forward in Ronald Dworkin's new book, Justice for Hedgehogs, in which all our ideals, however scattered, come down more or less to the self-same thing — there is not a lot to be gained by collapsing any one of them into any of the others.
Waldron explains that -
There are three lectures in all. Unfortunately the original lecture titles are not a good indication of the eventual contents.

Lecture 1 was called "The Classical Lockean Picture and its Difficulties" and it mainly addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). It explores Richard Epstein's version of this idea and then it spends some time on the Lockean account of property. The argument is that in the real world even Lockean property has an inescapable public law dimension.

Lecture 2 was called "Unraveling the Form and Substance of Property," but it is really about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. The argument is that given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc.

Lecture 3 was called "The Rule of Law, Property, and Legislation" and it is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law.

Readers should note that although I spend a lot of time discussing the fact situation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), these lectures are not lectures in American constitutional law, nor do they aim to build pathways through the swamp of US takings jurisprudence

21 June 2011

Donor Conception

A recent post noted the Senate Committee report on assisted fertility, which included somewhat quixotic comments on the shape of families and the number of sperm donations that should be permissible.

The Victorian Government has ordered an independent review of the management of long-term sperm storage issues, following disagrrement about compliance with statutory requirements that donated gametes must be destroyed after a decade unless the "owner" formally applies for an extension. The framework is provided by the Infertility Treatment Act 1995 (Vic) and the Assisted Reproductive Treatment Act 2008 (Vic). The Royal Women's Hospital is reportedly refusing to destroy several batches of sperm, arguing that it has been having trouble contacting some donors who have moved interstate or overseas and is therefore retaining the sperm beyond the 10 year deadline.

The Hospital has called on the Government to amend the law, witn state Health Minister David Davis commenting [PDF] that harsh and unreasonable outcomes appear to have occurred in instances where it has not been possible to notify the owners -
It appears that the current law is inflexible in not providing for the patient review panel [PRP] to consider extension of the period of time for which sperm may be stored in these circumstances
The review will examine mechanisms to make sure families are treated fairly when the storage deadline is approaching or has passed, consistent with practice such as storage of sperm by young men prior to undergoing cancer treatments.

The review will also examine whether current legal arrangements need to be changed.

It is to be conducted by "experienced administrator and medical practitioner Dr Andrew Perrignon", previously the CEO of Northern Health. His terms of reference are -
1. Practical means to ensure that there is fair treatment for men and women and their families where sperm or other reproductive tissues have been stored and the storage deadline is approaching or has passed.

2. Procedures and mechanisms to reasonably advise those whose sperm is stored within the terms of the current Victorian law.

3. Procedures and arrangements that should be adopted by health services and hospitals to comply with the law while providing reasonable protection for those who have sought their services in good faith.

4. Whether the current legal arrangements and administrative mechanisms in existence in Victoria should be altered to provide a fairer approach consistent with the objectives of the current legislation and with current evidence. Whether any changes should be made to current legislation or administrative arrangements, and if so, what the recommended changes should be.
The Minister might be nonplussed by tabloid journalism in the Melbourne Herald-Sun, which under the headline "Royal Women's Hospital bungle shatters families' baby dreams" states that -
ABOUT 20 Victorian families have had their baby dreams shattered after a hospital bungle.

The Herald Sun can reveal the Royal Women's Hospital must immediately destroy the frozen sperm samples kept illegally due to an administration error.

The hospital has so far defied the order. If the samples are not destroyed, hospital bosses could face up to two years in prison.

Victoria's Patient Review Panel has rejected an 11th-hour bid for more time.

Their only hope now is if the State Government steps in to change laws demanding destruction of the semen.

The State Government and Health Department last night were trying to resolve the heartbreaking dispute, with officials desperately trying to work out if they could alter legislation.

Cybersafety Report

High-Wire Act: Cyber-Safety and the Young, the 601 page report [PDF] of the Australian Parliament's Joint Select Committee on Cyber-Safety, is now available.

Overall the mountain has laboured - boasting that the Committee took "into account the opinions and internet habits of an unprecedented 33,751 young Australian internet users" (along with submissions by myself) - and brought forth a mouse, albeit a large and bureaucratic mouse.

The Committee's recommendations are -
Young people in the online environment

R1 - That the Minister for School Education, Early Childhood & Youth consider the feasibility of assisting preschools and kindergartens to provide cyber-safety educational programs for children as part of their development activities.


R2 - That the Minister for Broadband, Communications & the Digital Economy invite the Consultative Working Group on Cybersafety, in consultation with the Youth Advisory Group, to develop an agreed definition of cyber-bullying to be used by all Australian Government departments and agencies, and encourage its use nationally.

R3 - That the Minister for Broadband, Communications & the Digital Economy and the Minster for School Education, Early Childhood & Youth work with the Ministerial Council for Education, Early Childhood Development & Youth and the Australian Communications & Media Authority to investigate the feasibility of developing and introducing a cyber-safety student mentoring program in Australian schools.

Breaches of privacy and identity theft

R4 - That the Australian Government consider amending small business exemptions of the Privacy Act 1988 (Cth) to ensure that small businesses which hold substantial quantities of personal information, or which
transfer personal information offshore, are subject to the requirements of that Act.

R5 - That the Australian Privacy Commissioner undertake a review of those categories of small business with significant personal data holdings, and make recommendations to Government about expanding the categories of small business operators prescribed in regulations as subject to the Privacy Act 1988 (Cth).

R6 - That the Office of the Privacy Commissioner examine the issue of consent in the online context and develop guidelines on the appropriate use of privacy consent forms for online services and the Australian Government seek their adoption by industry.

R7 - That the Australian Government amend the Privacy Act 1988 (Cth) to provide that all Australian organisations which transfer personal information overseas, including small businesses, ensure that the information will be protected in a manner at least equivalent to the protections provided under Australia's privacy framework.

R8 - That the Office of Privacy Commissioner, in consultation with web browser developers, Internet service providers and the advertising industry, and in accordance with proposed amendments to the Privacy Act 1988 (Cth), develop and impose a code which includes a 'Do Not Track' model following consultation with stakeholders.

R9 - That the Australian Government amend the Privacy Act 1988
(Cth) to provide that an organisation has an Australian link if it collects information from Australia, thereby ensuring that information collected from Australia in the online context is protected by the Privacy Act 1988 (Cth).

R10 - That the Australian Government amend the Privacy Act 1988 (Cth) to require all Australian organisations that transfer personal information offshore are fully accountable for protecting the privacy of that information.

R11 - That the Australian Government consider the enforceability of provisions relating to the transfer of personal information offshore and, if necessary, strengthen the powers of the Australian Privacy Commissioner to enforce adequate protection of offshore data transfers.

R12 - That the Australian Government continue to work internationally, and particularly within our region, to develop strong privacy protections for Australians in the online context.

Educational Strategies

R13 - That the Attorney-General, as a matter of priority, work with State and Territory counterparts to develop a nationally consistent legislative approach to add certainty to the authority of schools to deal with incidents of inappropriate student behaviour to other students out of school hours.

R14 - That the Minister for School Education, Early Childhood & Youth propose to the Ministerial Council of Education, Early Childhood Development & Youth Affairs:
• to develop national core standards for cyber-safety education in schools,
• to adopt a national scheme to encourage all Australian schools to introduce ‘Acceptable Use’ Agreements governing access to the online environment by their students, together with the necessary supporting policies, and
• to encourage all Australian schools to familiarise students, teachers, and parents with the ThinkUknow program, and the CyberSafety Help Button and other resources of the Australian Communications and Media Authority to promote the cyber-safety message.
R15 - That the Minister for School Education, Early Childhood & Youth and the Minister for Broadband, Communications & the Digital Economy consider extending the Australian Communications & Media Authority's Connect-ED program and other training programs to nonadministration staff in Australian schools including school librarians, chaplains and counsellors.

R16 - That the Minister for Tertiary Education, Skills, Jobs & Workplace Relations and the Minister for Broadband, Communications & the Digital Economy work together to ensure that sufficient funding is available to ensure the Australian Communications & Media Authority can provide the necessary training for professional development of Australian teachers.

R17 - That the Minister for Tertiary Education, Skills, Jobs & Workplace Relations and the Minister for Broadband, Communications & the Digital Economy encourage all Australian universities providing teacher training courses to ensure that cyber-safety material is incorporated in the core units in their curriculums.

R18 - That the Minister for School Education, Early Childhood & Youth establish a position similar to Queensland's 'reputation management' position to provide nationally consistent advice to teachers who are being cyber-bullied by students about the role and processes of the Australian Communications & Media Authority, law enforcement agencies and Internet service providers in facilitating the removal of inappropriate material.

R19 - That the Minister for School Education, Early Childhood & Youth and the Minister for Broadband, Communications & the Digital Economy investigate funding a national, online training program for teachers and students that addresses bullying and cyber-bullying, and is validated by national accreditation.

R20 - That the Minister for School Education, Early Childhood & Youth invite the Ministerial Council of Education, Early Childhood Development & Youth Affairs to formulate a cooperative national approach to the development of a whole-of-school community approach to cyber-safety, and to provide all schools with the necessary information and strategies to measure the effectiveness of their cyber-safety policies.


R21 - That the Attorney-General work with State and Territory counterparts to invite all Australian Police Forces to develop a range of online courses to provide training in cyber-safety issues for all ranks, from basic training for recruits and in-service and refresher courses for more senior members.

R22 - That the Attorney-General work with State and Territory counterparts to initiate a mandatory training program for judicial officers and all relevant court staff addressing cyber-safety issues, to ensure they are aware of these issues, and of emerging technologies.

R23 - That the Attorney-General in conjunction with the National Working Group on Cybercrime undertake a review of legislation in Australian jurisdictions relating to cyber-safety crimes.

Australian and International Responses

R24 - That the Australian Communications & Media Authority facilitate the development of and promote online self assessment tools to enable young people, parents/carers and teachers to assess their level of awareness and understanding of cyber-safety issues.

R25 - That the Consultative Working Group on Cybersafety investigate possible improvements to the information provided to parents at the point of sale of computers and mobile phones.

R26 That the Minister for Broadband, Communications & the Digital Economy negotiate with mobile phone companies to increase affordable access to crisis help lines, with a view to ensuring greater accessibility by young people seeking assistance.

Input from young people

R27 - That the Minister for Broadband, Communications & the Digital Economy invite the Consultative Working Group on Cybersafety, in conjunction with the Youth Advisory Group, continue to advise Government on enhancing the effectiveness of cyber-safety awareness campaigns including targeted media campaigns and educational programs.

R28 - That the Minister for School Education, Early Childhood & Youth consult with the Minister for Broadband, Communications & the Digital Economy to develop measures to introduce:
• youth leadership courses enabling students to mentor their school communities about cyber-safety issues, and
• courses on cyber-safety issues for parents/carers and other adults are developed in consultation with young people and delivered by young people.
R29 - That the Minister for Broadband, Communications & the Digital Economy facilitate a cooperative approach to ensure all material provided on cyber-safety programs is accessible through a central portal, and that a national education campaign be designed and implemented to publicise this portal, especially to young people.

R30 - That the Minister for Broadband, Communications & the Digital Economy encourages industry including the Internet Industry Association, to enhance the accessibility to assistance or complaints mechanisms on social networking sites; and develop a process that will allow people who have made complaints to receive prompt advice about actions that have been taken to resolve the matter, including the reasons why no action was taken.

R31 - That the Minister for Broadband, Communications & the Digital Economy invite the Consultative Working Group on Cybersafety to negotiate protocols with overseas social networking sites to ensure that offensive material is taken down as soon as possible.

R32 - That the relevant Ministers in consultation with service providers consider how costs may be reduced for law enforcement agencies collecting evidence against online offenders. The breadth and often anodyne nature of those recommendations reflects the Committee's portmanteau Terms of Reference -
i) the online environment in which Australian children currently engage, including key physical points of access (schools, libraries, internet cafes, homes, mobiles) and stakeholders controlling or able to influence that engagement (governments, parents, teachers, traders, internet service providers, content service providers);

ii) the nature, prevalence, implications of and level of risk associated with cyber-safety threats, such as:
• abuse of children online (cyber-bullying, cyber-stalking and sexual grooming);
• exposure to illegal and inappropriate content;
• inappropriate social and health behaviours in an online environment (eg technology addiction, online promotion of anorexia, drug usage, underage drinking and smoking);
• identity theft; and
• breaches of privacy;
iii) Australian and international responses to current cyber-safety threats (education, filtering, regulation, enforcement) their effectiveness and costs to stakeholders, including business;

iv) opportunities for cooperation across Australian stakeholders and with international stakeholders in dealing with cyber-safety issues;

v) examining the need to ensure that the opportunities presented by, and economic benefits of, new technologies are maximised;

vi) ways to support schools to change their culture to reduce the incidence and harmful effects of cyber-bullying including by:
• increasing awareness of cyber-safety good practice;
• encouraging schools to work with the broader school community, especially parents, to develop consistent, whole school approaches; and
• analysing best practice approaches to training and professional development programs and resources that are available to enable school staff to effectively respond to cyber-bullying;
vii) analysing information on achieving and continuing world’s best practice safeguards;

viii) the merit of establishing an Online Ombudsman to investigate, advocate and act on cyber-safety issues; and

(b) such other matters relating to cyber-safety referred by the Minister for Broadband, Communications & the Digital Economy or either House.

Hitting the hedgehog

From Carlin Romano's cranky review in The American Scholar of Dworkin's Justice For Hedgehogs -
Examined Lives is, then, an exercise in the Higher Wikipedia, which is not meant to sound completely snide. As a readable introduction to its worthies, it's fine. But those serious about exploring the philosophical tradition of pondering the exemplary life would be better advised to turn to the challenging work of the late French philosopher Pierre Hadot, particularly his Philosophy as a Way of Life.

If Miller’s book underwhelms by its timorous retailing of standard views, Ronald Dworkin’s Justice for Hedgehogs annoys because of its author’s trademark smugness. Long anointed as a kind of King of Jurisprudence by the New York Review of Books, bestowing on him a powerful, protected status among academics in that field, Dworkin specializes in the illusion of argumentative rigor, wed to a clear but colorless style. Fellow philosopher of law (and federal judge) Richard Posner, wrote in his own book How Judges Think of Dworkin’s well-known position on judicial reasoning — that judges can find "right answers” in the law if they just think hard enough. He caustically observed,
Really what he has done is relabel his preferred policies 'principles' and urged judges to decide cases in accordance with those 'principles'.
One would expect a sophisticated philosopher to approach the concept of justice with humility. As the late American philosopher Robert C. Solomon observed
What we call justice would not have been recognized as such in Homeric Greece or in the Athens of Plato and Aristotle 400 years later. It is very different from the sense of justice that one would find in feudal France, in the Florentine renaissance, or in the bourgeois London society of Jane Austen. It is very different, indeed, from the sense of justice one finds in contemporary Japan or Iran.
But Dworkin, in Justice for Hedgehogs, sets out his fundamental principles and treats them as if they’re obvious and "mutually supporting". As in his reasoning about judicial decision making, Dworkin rejects any form of relativism and argues that truth in morality is objective and can be shown to be so. The book’s title is a reference to Isaiah Berlin’s famous distinction, in 'The Hedgehog and the Fox', between the former, who knows one big thing, and the latter, who knows many little things. Dworkin identifies with the hedgehog. He’s sure about one big thing — that there is a coherent unity among all human values — and his new book is the 79-year-old thinker’s final attempt to pull his whole theory together.

"I believe", he writes in his opening "Baedeker", or introduction, "that there are objective truths about value. I believe that some institutions really are unjust and some acts really are wrong no matter how many people believe that they are not." Unfortunately, as in much of his work, Dwor­kin simply assumes that values held by well-educated, elite, liberal Westerners — for example, mak­ing one’s life a kind of work of art, respecting human dignity in one and all — are beyond question.

So, for instance, a fundamental shaping principle for Dworkin is that every life should be a "successful performance rather than a wasted opportunity" — that is, we should place extraordinary value on our own lives. Yet that's a view shared around the world, more by aggressively careerist professionals than by humbler, selfless sorts. Another supposed core principle is that we should, in a Kantian manner, treat all other people as ends rather than means, and show equal concern for them. It's a lovely sentiment, and one to which we might wish to subscribe, but a variety of cultures would object to showing equal concern for the kind and the cruel, the industrious and the lazy, just as many would reject the priority on "authenticity" that Dworkin urges.

What passes for rigorous argument in Dworkin's work is usually arbitrary, stipulative redefinition of concepts, regardless of their general use. So, for Dworkin, "ethics" and "morality" are two different things (the first is "the study of how to live well", the second is "the study of how we must treat other people"). In similar fashion, he divides "liberty" and "freedom" and with the help of that legerdemain, makes one of Isaiah Berlin's signature claims — that liberty and equality inevitably clash — disappear. Dworkin’s notion of democracy, in turn, stresses an ideal of citizens as partners rather than competitors, surely one of his less plausible twists of meaning. Law, as always in Dworkin’s past work, becomes a "branch of morality".

It’s not that one can’t prefer the way Dworkin articulates these notions — what irritates is his insinuation that any other understanding of them is wrong. He goes so far as to claim that even if no one existed to believe some of his fundamental judgments, they would still be true. He similarly contends that "we cannot defend a theory of justice without also defending, as part of the same enterprise, a theory of moral objectivity". Even Rawls, particularly in his later work, did not take such a leap, notwithstanding the way that Dworkin, like Rawls, believes all our judgments must cohere in what Rawls called "reflective equilibrium".

Alas, what Robert Solomon observed of prior justice theory might be applied to Dworkin’s massive new ahistorical effort as well:
The positions have been drawn, defined, refined, and redefined again. The qualifications have been qualified, the objections answered and answered again with more objections, and the ramifications further ramified and embellished. But the hope for a single, neutral, rational position has been thwarted every time. The attempt itself betrays incommensurable ideologies and unexamined subjective preferences ... We get no universal, strong, and complete system of justice.

Perfectionist Liberalism

From Martha Nussbaum's 'Perfectionist Liberalism and Political Liberalism' in 39(1) Philosophy & Public Affairs (2011) 3-44 -
The views of Isaiah Berlin are an influential example, in the philosophical literature, of what we might call perfectionist liberalism, a type of liberal political view that spells out a set of controversial metaphysical and ethical doctrines concerning the nature of value and the good life, and then goes on to recommend political principles built upon these values. Berlin’s formulations, though influential, are characteristically compressed and allusive, but Joseph Raz has developed a closely related set of ideas with great explicitness and clarity. For Raz, the key personal and political value is autonomy, a power of self-direction and selfgovernment.

To this (and here is the connection to Berlin) he links the acceptance of moral pluralism: to see why only a relatively extensive range of options adequately supports autonomy, one must grasp the fact that there are many incompatible ways of living, all of which are morally good and valuable. Thus Raz’s doctrine of autonomy — as he states — requires the acceptance of moral pluralism and uses that idea to support its account of adequate options. Religious and secular toleration, he argues, should be based on an acceptance of the ideal of autonomy and the truth of moral pluralism. Thus Raz espouses a two-part ideal: the central value is autonomy, but, as he understands that idea, it requires the acceptance of another controversial doctrine about value, namely pluralism.

The major liberal alternative to Berlin’s and Raz’s perfectionist liberalism, in the recent Anglo-American philosophical literature, is the view called "political liberalism". This view was developed first by Charles Larmore in Patterns of Moral Complexity and The Morals of Modernity, with explicit reference to Berlin, but in most detail by John Rawls in his great book Political Liberalism. I too hold a view of this type, having been convinced by the arguments of Larmore and Rawls. It seems worth exploring the reasons that led the three of us to prefer political liberalism to a view of Raz’s type.

I begin by outlining the views of Berlin and Raz. I then turn to Larmore’s critique and Rawls’s restatement of that critique, which I accept in most respects. I then discuss a crucial ambiguity in the formulation of a key notion in political liberalism: that of 'reasonable disagreement" (in the case of Larmore), or "reasonable comprehensive doctrines" (in the case of Rawls). Having resolved that ambiguity in favor of the version of the view that I find most appealing, I then argue that political liberalism is superior to perfectionist liberalism as a basis for political principles in a pluralistic society. In a concluding section, I address the issue of stability.

19 June 2011

Camp on camera

From the ODNB biography of wrestler Shirley Crabtree [performing name Big Daddy (1930-1997) -
At the age of fourteen Crabtree left school to work in a cotton mill, but left this job two years later to play rugby league for Bradford Northern. However, his temper often got the better of him, and he never played for the first team. He eventually became a lifeguard at Blackpool with his brothers Brian and Max, and all three brothers took up wrestling. Max later became a promoter, but Brian broke his leg and turned to refereeing. Crabtree used his own name at first, but was also billed as the Blond Adonis or Mr Universe. He was often on the same bills as Jimmy Savile. At this stage he was a middleweight, but he soon realized that the largest wrestlers attracted the most support, and he put on weight and eventually weighed over 25 stone. He was often cast as a villain, most notably as the Battling Guardsman, as he had briefly served in the Coldstream Guards. He was also in The Guinness Book of Records as the owner of the largest chest in England, at 64 inches.

In 1976 the persona emerged that made Crabtree famous across the land. His brother Max, by now one of the sport's leading promoters, thought up the name Big Daddy, which was taken from the character played by Burl Ives in the film Cat on a Hot Tin Roof. His second wife, Eunice, made him a leotard from the chintz covers of their sofa, and Crabtree reinvented himself as a good guy. By now wrestling had become little more than a stage show, with the stunts carefully choreographed, although Crabtree stoutly denied this, saying that most of his fellow combatants were not intelligent enough for such forward planning. However, its popularity was enormous, and on Saturday afternoons ITV's World of Sport attracted over 10 million viewers.

The spectators were attracted less by the athletic endeavours of its exponents than by the glitz and glamour of the rituals, from the opening announcement by the commentator, Kent Walton, of 'Greetings, grapple fans' to the climactic battle between, inevitably, Big Daddy and his current arch-rival. His enemies included such wrestling luminaries as Mick McManus, Giant Haystacks (once in The Guinness Book of Records as the heaviest man in the UK), and Dave 'Fit' Finlay. The ritual of these bouts would involve Big Daddy striding into the arena to his signature tune, 'We shall not be moved', and chants of 'Ea-sy, ea-sy!' from his fans. A bigger and stronger opponent would overcome his smaller tag-team partner at the start of the bout and then try to antagonize Big Daddy. On finally being tagged into the ring, Big Daddy would out-muscle his opponent and gradually wear him down before applying his special finishing manoeuvre, known as 'the splash'. This involved him climbing onto the top rope and flopping down to crush his fallen opponent with his vast belly.

... Wrestling had made Big Daddy a household name, and even prime minister Margaret Thatcher confessed to being a fan.
Can't go wrong with a leotard from the chintz covers of the family sofa.

Fudgy figures

In a recent post I expressed disquiet about potential survey bias in a report by the National Union of Students. There's a more hard-hitting analysis in the Victorian Ombudsman's 41 page report [PDF] on an Investigation into an allegation about Victoria Police crime statistics.

The Ombudsman states that -
Crime statistics are an important public interest issue. The processes for the recording and reporting of crime need to be trusted. Crime statistics are not only used to inform the Victorian public about crime, but also critically to inform operational decisions by police, such as the allocation of police resources.

In 2009 I reported to the Parliament on the issue of crime statistics and police numbers. At that time I recommended that there needed to be an independent body separate to the Victoria Police to manage the release of crime statistics.

Since that time nothing appears to have changed. Crime statistics are still managed and disseminated by Victoria Police, with known inefficiencies and other long standing concerns. There is still mistrust in the way crime statistics are used, which can be confusing and impacts on public perceptions and confidence.

In late February 2011 I received a complaint from a whistleblower that Victoria Police crime statistics released on 28 October 2010 had been manipulated for political purposes and the data was misleading. The media release stated that "... further analysis of the past three months – compared to the same three months last year - has shown a 27.5% fall in street assaults in the city and a 12.4% decrease in assaults across the state". I investigated the complaint under the Whistleblowers Protection Act 2001.

My investigation identified that the decision to release the crime statistics several days before the caretaker period leading up to the November 2010 state election was the Chief Commissioner’s and his alone. He confirms this, as do other witnesses.

I consider that the quoted reduction of 27.5% of assaults in the CBD between the July-September quarter 2010 compared to the July-September quarter in 2009 without qualification, was based on yet to be validated data. It was therefore likely that releasing the data without qualification could reasonably be perceived to be misrepresenting the fuller picture of the trends. The crime statistics were subsequently used for political purposes during a public debate by the then new Police Minister three days before the election.

The release of the quarterly crime statistics data, particularly so close to an election, was likely to be used in a political context. Senior officers also failed to pass on warnings to the Chief Commissioner that the data was not "settled" and was incomplete. In this regard the Chief Commissioner has responded that "I accept the figures in the media release, and the July-September statistics as whole [sic], can be criticised on the basis the data did not have time to settle because their release was brought forward".

There is also the perception that the public were misled by the crime statistics. After all, the media for the previous two summers had raised concerns about violence on the streets in the CBD. The data also let rank and file police down. How could for example the Superintendent in charge of the CBD argue for more resources on the basis of this information or make sound operational decisions? It is also in contradiction to their practical experience of violence in the CBD. However, the Chief Commissioner stated that "resourcing and tasking decisions are not and never would be made on the basis of this single data set. We continue to inject new resources into the city and to supplement as appropriate with resources from other units to deal with the issues in and around the city".

The independence of crime statistics is crucial. I consider there is a clear need as I indicated in 2009, for an independent body to manage the release of crime statistics. I have recommended accordingly. Victoria Police endorses this recommendation.

Action by the ICO

The UK, like the past, is another country ... they take privacy more seriously there.

The UK Information Commissioner [ICO] reports that -
The ICO has taken action against three individuals who have been found guilty of illegally obtaining personal information relating to thousands of people across the UK.

The first conviction was against Martin Campbell, a former employee of the Bury-based personal injuries company Direct Assist. Mr Campbell is thought to have obtained personal data relating to around 29 patients who had received medical treatment at Prestwich or Moorgate Primary Care walk in centres, both based in Bury. This information was then used to generate leads for the personal injury claims company he was working for at that time.

At a hearing on 1 June at Bury Magistrates Court Mr Campbell pleaded guilty to the charges brought against him before being ordered to pay a £1,050 fine, £1,160 towards prosecution costs, and a £15 victims' surcharge. [PDF]

In another case, two more convictions were secured against two former employees of UK mobile operator T-Mobile for stealing customer data from the company and selling it on in 2008. The accused, Darren Hames and David Turley, were ordered to pay a total of over £73,700 in confiscation costs as part of a hearing at Chester Crown Court on 10 June. [PDF]

The case is the first time that the ICO has applied for and been granted the use of confiscation orders, a power under the Proceeds of Crime Act.

Commenting on the news, Information Commissioner, Christopher Graham, said:
Those who have regular access to thousands of customer details may think that attempts to use it for personal gain will go undetected. But this case shows that there is always an audit trail and my office will do everything in its power to uncover it.
We might hope that the OAIC, the Information Commissioner's Australian counterpart, will take a similarly enthusiastic stance in protecting privacy after incidents such as release of data about Vodafone customers and Sony customers