16 July 2011

Data mining

The national Minister for Home Affairs has promoted the 'National Criminal Intelligence Fusion Capability' by reporting "53 new criminal targets identified in Fusion's first year". The rhetoric is off the shelf -
"Within a year, Fusion has identified 53 new targets involved in serious organised crime. That's a great result for crime fighting across Australia and the safety and security of our nation as a whole," Mr O'Connor said.

"A number of these targets have been identified as laundering suspected criminal proceeds in excess of $100 million a year. All targets are now firmly in the sights of law enforcement agencies nationally," he said.
Fusion, ie the National Criminal Intelligence Fusion Centre coordinated by the Australian Crime Commission (ACC), comprises Commonwealth agencies such as the Australian Federal Police, Australian Competition & Consumer Commission, Australian Security Intelligence Organisation (ASIO), Australian Customs & Border Protection Service, the Australian Transaction Reports & Analysis Centre (Austrac), Australian Securities & Investments Commission (ASIC), the Australian Taxation Office, Centrelink, the Department of Immigration & Citizenship and state police forces.

It was launched last year, at a cost of $14.5m, as "a key plank of the Gillard Government's assault on organised crime".
It is a critical element of the Commonwealth Organised Crime Strategic Framework, providing the means to identify patterns of crime and the flows of money associated with them. From this information, Fusion is able to identify the individuals, businesses and corporate structures involved in criminal enterprises in Australia.

The ACC-led Fusion Capability is about integrating or ‘fusing’ the national criminal intelligence picture. It represents a significant step towards delivery of a real-time national picture of the threat being posed to Australia by organised crime. It brings together people from a range of Government agencies, who work collaboratively to provide a more comprehensive picture of the targets, risks, threats and vulnerabilities associated with organised crime. These people have a variety of expertise and unique skills, as well as access to their own agencies’ information holdings.
In promoting the initiative the Minister stated that -
"Fusion brings together specialists from a broad range of agencies to work collaboratively to prevent, disrupt, investigate and prosecute organised crime."

Fusion provides in-depth criminal intelligence and analysis and boosts the capability of law enforcement agencies to identify high-risk cash flows, patterns of crime and the people, businesses and corporate structures that may be involved in criminal enterprises in Australia and overseas.

"Through the integration of public and private sector information holdings with the Australian Crime Commission's criminal intelligence, Fusion is able to identify patterns of crime and the flows of money associated with them," Mr O'Connor said.It
If you want to go beyond taglines such as "Fusion has generated over 2300 actionable leads" and "Fusion has also produced 974 intelligence reports that have been disseminated to 53 partner agencies" you can contemplate two 'case studies' -
Case Study 1

Comparing the details of over 28 000 casino high-rollers Australia-wide against the known nationally significant criminal targets and their close associates revealed 78 potential matches. Some of the losses were recorded in the millions of dollars. Further investigation revealed that for many of these individuals there is no apparent legitimate source of income to explain these large sums of money. Intelligence summaries were provided to relevant partner agencies, leading to a better understanding of the financial picture surrounding these individuals. Cases of apparent fraud involving the welfare system were forwarded to Centrelink. Instances of unexplained wealth were provided to the Australian Federal Police-led Criminal Assets Confiscation Task Force for ongoing action.

Case Study 2

Using filtering techniques to identify anomalous money movement among the many millions of overseas financial transactions reported to the Australian Transaction Reporting and Analysis Centre (AUSTRAC) each day, Fusion has identified individuals that are sending large amounts of drug-related profits offshore. One remittance agency operating from two small city shop fronts was found to be moving relatively large amounts of funds offshore — approximately $20 million in a single month — most of which was suspected of being the proceeds of criminal activity. Further investigation identified several customers with apparent links to criminal syndicates involved in the importation, manufacture and distribution of illicit drugs. These customers are now subject to law enforcement and regulatory attention.

Personnel records

Under the headline 'Privacy fears spark call for crackdown' David Ellery in The Canberra Times reports -
Special legislation may be needed to protect the confidential records of Australian service personnel and ensure defence force efficiency is not undermined by privacy concerns, Australian Defence Association executive director Neil James has said.

Mr James has backed calls for a crackdown on what can be issued by National Archives, after complaints that confidential medical records and work performance assessments had been made public.
Those complaints about provision by the Archives [NAA] of public access to medical records under the Archives Act 1983 (Cth) or Freedom of Information Act 1982 (Cth) do not appear to have been substantiated.

James is reported as stating that
there was a lot of anger in the military over the publication, under freedom of information laws, of Brisbane Lord Mayor Campbell Newman's military records.

News Ltd journalists used the former Army major's Duntroon reports to raise questions about his leadership skills.

The archive makes such records public after 30 years.

In many cases they can be downloaded from the official website.
The Defence Force Welfare Association, under executive director Les Bienkiewicz, reportedly fears that records - presumably 'sensitive' records - will be publicly accessible under s 31 of the Archives Act 1983 (Cth) or under the Freedom of Information Act 1982 (Cth) while former service personnel are in the workforce, particular because under the 'open government' philosophy highlighted elsewhere in this blog the 'closed access period' for most archival material is being reduced to 20 years. The usual alarms have been sounded and advocates have mounted the sooapboxes.
Mr James said if military leaders conducting performance assessments feared what they wrote could be made public down the track they would be less than frank.

Serving soldiers would be reluctant to seek psychological counselling or other forms of medical assistance for fear of having it become public knowledge.

"We already have the situation where some personnel have sought treatment for conditions or injuries outside the Defence medical system because of the effect [disclosing] it could have on their military employment or career", he said.
The CT reports that the NAA has "defended its practices, saying both the Administrative Appeals Tribunal and the Federal Court had ruled performance reports were not considered 'personal affairs' and could be issued", with the Defence Department checking personnel dossiers "for sensitive medical information" prior to transfer to the Archives. The NAA does not have a practice of releasing medical or other sensitive information in an individual's lifetime and there are exemptions under s 33 of the Archives Act 1983 (Cth) that authorise restriction.

The reporting is a nice example of sectoral exceptionalism and misunderstanding. Bienkiewicz is reported as indicating that "there was an arrangement in place between NAA and Veterans Affairs to protect clients' privacy". Indeed there is and the NAA has obligations regarding the privacy of all military personnel and Commonwealth employees, rather than merely documents generated by Veterans' Affairs. The CT states that -
"The current practice of NAA has the potential to cause embarrassment and distress to Australian Defence Force and former Australian Defence Force members and to families of deceased former ADF members", he said in a recent letter to Veterans' Affairs and Defence Personnel Minister Warren Snowdon.

"The rights of ADF and former ADF members to the privacy of their personal and confidential records justify a similar arrangement between the director-general of NAA and the minister."

Mr Snowdon wrote back the current legislation was "sound" and if there had been an "inadvertent release of specific sensitive medical information" it should be taken up with the director-general of NAA or the Commonwealth Ombudsman.
Regrettably, there was apparently no reference to a complaint to the Office of the Australian Information Commissioner, although we might be wary about what a newspaper is reporting and what someone has told to a journalist, given scope for confusion.
Bienkiewicz said current practice meant the person seeking information had all the rights while the person the information was about had none.
Last month The Australian stated that -
The documents released by the Department of Defence under Freedom of Information laws were posted on The Australian’s website on 22 June, in line with the new provisions in the FOI Act whereby the department is compelled to make the same documents publicly available via its disclosure log within 10 business days.

After concerns were raised by Campbell Newman’s office about the disclosure of private family information – unrelated to the article published on 22 June – The Australian, as a courtesy, removed the file from its website. Mr Newman, who has raised no concerns about the article, was originally consulted by Defence and allowed the release of the documents in their entirety, but is now reconsidering his position. The file on The Australian’s website will be reviewed once Defence has updated its disclosure log.
At the same time the Newcastle Herald reported that -
special forces soldiers fighting in Afghanistan could shun counselling after the psychological records of two commandos cleared over the deaths of civilians were taken by Defence prosecutors for use as evidence against them.

The Herald believes Defence Force investigators seized records of counselling the two men received before and after the event, in which six Afghan civilians - including five children - were killed during a disastrous night raid on a compound in February 2009.

Manslaughter charges against the two soldiers were thrown out by a military judge last month, and the military prosecutor announced last week that she would not lay further charges.

A number of Defence sources have told the Herald that special forces soldiers have been horrified to hear that the records were handed over, and that some have since said they will not see psychologists, in case their records are also used against them.

Civilian psychologists and medical doctors are obliged to hand over patient records when there is a legal obligation to do so, but they must be subpoenaed by the court. It is unclear what the process is within Defence.

It is understood that the prosecutors had the mens' psychological records for a year before telling the Defence Forces, but there was nothing the prosecution deemed relevant enough to use as evidence.

"If you come back from operations and you're feeling uncomfortable, you will hold that in, rather than go to the psychologists", one source said.

"That could be a problem, because you could be deployed on future operations without being counselled. If you don't report it, you could also have problems later making a claim with the Department of Veterans Affairs."

Dead ends

From 'The End: Death in L.A. can be an odd undertaking' by Ben Ehrenreich in Los Angeles Magazine (11/1/2010) -
You've made some bargains. We all have. Maybe you allow yourself a single Tommy’s burger every six months. Maybe you’ve given up meat altogether, or red meat anyway, most of the time. Maybe you’re serious about this and you’ve given up all refined grains and any processed anything; the extra buck a pound to buy organic seems a reasonable sacrifice. You’ve given up booze, cigarettes, pills, cocaine, sex with strangers. You tell yourself you don’t miss them. You wear sunscreen and eat flaxseeds. You go to the gym on breezy Sundays when you’d rather lie around. You go to yoga classes even though the chanting makes you want the world to end. You sold your motorcycle years ago. You cross at the light and look both ways.

No matter how many sacrifices you make to Lady Death, no matter how rich the offerings you lay before her altar, she will know where to find you. When she comes, she will hold you tight, and she will never let you go. Don’t be frightened. She takes us all.

Even here in Los Angeles, in the glow of so much newness, she takes 60,000 of us each year.1 That’s 164 each day. Imagine them all lying side by side, napping forever without a snore. The sun goes down and rises again, and 164 more are sleeping beside them, resting cheeks on shoulders, ears on arms. One day you will join their still parade. Chances are good—about one in four in L.A. County—that death will grab you by the heart. Coronary disease is by far our leading cause of mortality, as it is in the rest of the country. L.A.’s specific inequities, though, travel as deeply through death as they do through life. In this and other ways, death maps life. If you’re an African American or a Latino male and you die before 75, you’re more likely to die of homicide than any other cause. The same goes if you’re of any race or either gender and you live in South L.A. If you’re white or live west of La Cienega and it’s not your ticker that gets you, it will most likely be an overdose, or a car crash, or lung cancer,2 or your own hand—murder is not even in the running.

Whoever you are and wherever you live, you will go. You will not be you anymore. Not exactly. You will be a corpse, a cadaver, a decedent, a “loved one.” You will be remains. The death industry employs more euphemisms than politicians do. Someone will find what’s left of you. A child, spouse, or parent. A nurse or passerby. Whoever it is will call for help. At home, at work, or in the street, he or she will dial 911. In a hospital, hospice, or nursing home, someone will call your doctor, who will check one last time for vital signs, declare you dead, and fill out the proper forms. A nurse will remove your clothes and close your eyes. (Not just for modesty’s sake: Rigor mortis hits the eyelids fast.) He or she will tie a tag bearing your name, which you can no longer speak, onto one of your toes, cover you with a plastic shroud, and wheel you to an elevator and thence to the morgue. In most hospitals it is in the basement. You will be rolled from the gurney into a refrigerated drawer. The door will close behind you. It will be dark and cold, but you won’t care.
Ehrenreich continues -
So here you are, dead and alone. Chances are you didn’t want this, but your wishes were ignored. Whatever happens to the part of you that you recognize as somehow quintessentially you (call it soul, self, spirit, spark), the other part isn’t finished yet — the fleshly part, the limbs and guts that ached and pleased you in so many ways, the meaty bits that you vainly or grudgingly dragged around for all those years. That piece is still of interest to the bureaucrats. It is still a potential source of profit. In your absence its journey is just beginning.

The path forks before it. Which way it goes will be determined by the cause of your demise. All the state wants is a death certificate: Think of it as a letter from your doctor excusing you from paying income tax forever.

15 July 2011

Aggravated Burglary

The Victorian Sentencing Advisory Council has released a 112 page report on sentencing trends for aggravated burglary.

The Aggravated Burglary: Current Sentencing Practices report [PDF] is based on sentencing remarks for 178 cases that involved at least one charge of aggravated burglary. It covers sentences that were handed down in the County Court of Victoria between July 2008 and June 2009.

Burglary involves entering a premises as a trespasser with the intention to steal anything in the premises or commit an offence involving assault or property damage. To be guilty of the offence, it is sufficient to enter the premises with the relevant intention (ie the offender does not have to actually carry out the intended theft, assault or property damage). It has a maximum penalty of 10 years’ imprisonment. Aggravated burglary occurs if, at the time of the burglary, the offender either carried a weapon or knew that a person was in the premises (or was reckless as to the presence of a person in the premises). Aggravated burglary has a maximum penalty of 25 years, the second highest level of maximum penalty available in Victoria after life imprisonment.

In examining common features and key differences between the cases the Council concludes that there are found six distinct forms of aggravated burglary, of which five had sufficient numbers to perform meaningful analysis. Each had a distinct sentencing range.

The categories are -
• intimate relationship (15.7% of cases analysed)
• sexual offence related (5.1%)
• confrontational (57.3%)
• robbery related (11.8%)
• theft related (3.4%)
• spontaneous encounters (1.7% or 3 cases)
The Council comments that -
The sentences imposed for these charges ranged from adjourned undertakings and fines to imprisonment for seven years. An immediate custodial sentence was the most frequently imposed sentence (55.2%). The median imprisonment term was two years. A wholly suspended sentence was the second most common sentence type (28.2% of charges) and the median term was two years.

Common features of aggravated burglaries sentenced in the higher courts were as follows:
• The offender was usually a person already known to the victim (71.8% of charges) rather than a stranger.
• The offence almost always occurred in residential premises (90.4%).
• The offender almost always committed at least one other offence (96.6%) – frequently this was an offence of causing injury or criminal damage.
• More than half of the offences involved at least one co-offender (59.0%).
• The offender was usually armed with a weapon (61.8%).
... Confrontational aggravated burglaries were by far the most common category, accounting for over half of the cases. They include cases such as ‘drug run-throughs’ (where there is a pre-existing dispute arising from illegal drug dealing and the offender breaks into premises to confront the other party and to take or damage property) and vigilante actions (for example, where the offender seeks to punish the victim because of a belief that the victim has done something wrong).

Fear Factor

From the 28 page paper by the Sentencing Advisory Council - Does Imprisonment Deter? A Review of the Evidence [PDF] -
Deterrence can be described as the prevention of crime through the fear of a threatened – or the experience of an actual – criminal sanction. General deterrence is aimed at reducing crime by directing the threat of that sanction at all potential offenders. Specific deterrence is aimed at reducing crime by applying a criminal sanction to a specific offender, in order to dissuade him or her from reoffending.

Deterrence is only one of the purposes of sentencing in Victoria, determined by section 5(1) of the Sentencing Act 1991 (Vic). The other purposes are: punishment, denunciation, rehabilitation and community protection (incapacitation). The scope of this paper is limited to examining the sentencing purpose of deterrence only – it does not present an analysis of the evidence of imprisonment’s effectiveness in regard to other sentencing purposes. There is an overlap in some studies when measuring deterrence and incapacitation; however, the paper does not draw conclusions on the effectiveness of imprisonment as a means of reducing crime through incapacitation.

Deterrence theory is based upon the classical economic theory of rational choice, which assumes that people weigh up the costs and benefits of a particular course of action whenever they make a decision. Deterrence theory relies on the assumption that offenders have knowledge of the threat of a criminal sanction and then make a rational choice whether or not to offend based upon consideration of that knowledge.

Rational choice theory, however, does not adequately account for a large number of offenders who may be considered 'irrational'. Examples of such irrationality can vary in severity – there are those who are not criminally responsible due to mental impairment, those who are drug affected or intoxicated and those who simply act in a way that is contrary to their own best interests. Research shows that the majority of offenders entering the Victorian criminal justice system have a history of substance use that is directly related to their offending.

That people are not perfectly rational and do not always make decisions that are in their own best interests is supported by studies in behavioural economics. Behavioural economic theory proposes that individuals make decisions on the basis of imperfect knowledge by employing 'rules of thumb', rather than strict logic, and are subject to limits on their willpower. People are also subject to a great number of patterns of deviation in judgment that occur in particular situations (known as 'cognitive biases'), which influence decision-making in predictable – but often irrational – ways.

The evidence from empirical studies of deterrence suggests that the threat of imprisonment generates a small general deterrent effect. However, the research also indicates that increases in the severity of penalties, such as increasing the length of terms of imprisonment, do not produce a corresponding increase in deterrence.

It has been suggested that harsher penalties do not deter because many crimes are committed in circumstances where it is difficult to identify when, or if, offenders have considered the consequences of their criminal behaviour. In addition, otherwise rational individuals are more strongly influenced by the perceived immediate benefits of committing crime and individuals ‘discount’ the cost of future penalties.

A consistent finding in deterrence research is that increases in the certainty of apprehension and punishment demonstrate a significant deterrent effect. Perceptions about the certainty of apprehension, for example, may counter the ‘present bias’ and reinforce the potential cost of committing crime. This result is qualified by the need for further research that separates deterrable from non-deterrable populations.

Research into specific deterrence shows that imprisonment has, at best, no effect on the rate of reoffending and often results in a greater rate of recidivism. Possible explanations for this include that: prison is a learning environment for crime, prison reinforces criminal identity and may diminish or sever social ties that encourage lawful behaviour and imprisonment is not the appropriate response to many offenders who require treatment for the underlying causes of their criminality (such as drug, alcohol and mental health issues). Harsh prison conditions do not generate a greater deterrent effect, and the evidence shows that such conditions may lead to more violent reoffending.

The empirical evidence on the effectiveness of imprisonment as a deterrent to crime suggests that the purposes of sentencing should be considered independently – according to their own merits – and that caution should be exercised if imprisonment is to be justified as a means of deterring all crimes and all kinds of offenders.

Inquisitorial justice

SSRN features 'The Letter of Richard Wyche: An Interrogation Narrative' by Christopher Bradley, forthcoming in Proceedings of the Modern Language Association. From a legal procedure, rather than merely a legal and cultural history perspective, Wyche's letter is a fascinating document.

Bradley comments that -
This is a translation, with introduction, of the Letter of Richard Wyche – one of only two heresy interrogation narratives from medieval England written from the perspective of the accused heretic.

The Letter is an autobiographical account of Richard Wyche’s interrogation, in 1402-1403, at the hands of church officials. Wyche originally composed the Letter in (Middle) English but it survives only in a Latin translation, alongside other forbidden texts in a manuscript now in Prague. Wyche wrote and covertly sent away this Letter to an audience of intimates sympathetic to the cause (the so-called Wycliffite or Lollard heresy) before his interrogations ended. Ultimately, Wyche was freed and lived several decades before he was finally burned at the stake for his heretical beliefs, in 1440.

Few similar narratives survive from the pre-modern era, and none combines public drama with novelistic inwardness, or layered artifice with personal urgency, as does the Letter. Not just a literary or religious artifact, the letter is a legal narrative comfortable alongside classics such as those presented by Natalie Zemon Davis (Fiction in the Archives) and R. Po-Chia Hsia (Trent 1475).

The Letter is a counter-authoritarian and transnational work, produced under enormous pressure and preserved in an alien land and alien language. The fact that such effort was taken to snuff it out, and to save it, lends all the more weight to this engrossing narrative. Still, the author refuses to serve as a stereotyped “heretic” or fit his story into a generalized master narrative. Instead, humanizing details and complicated emotions serve as the engines of an extended consideration of the limits of institutional demands on individual conscience. Wyche’s Letter offers an ambiguous, dramatic meditation on the boundaries of political, spiritual, and social faith, truth, and compromise.
Wyche writes that -
... I arrived at the town Chester le Street. I left my saddle and breviary in a lodging near the middle of town, but at Lent I was told that the good master Dees Oknolle had taken them in. May the Father of Jesus give him the sweetness of heavenly life and the purity and blessing of the fullness of grace.

I could not get around well owing to pain from a fall, so I had hired a horse to get there.

December 7th

On December 7th, I appeared before the bishop. In his presence, I denied the alleged doctrines and also denied that I had preached them.

We discussed the mendicancy of the friars. They wished me to publicly approve the friars’ voluntary mendicancy as a perfect practice. But I said it was not, because it was contrary to God’s law.

They said, “But the catholic church has approved it with one voice. Friars are permitted to beg.”

“Paul says, ‘All things are permissible for me, but not all are beneficial.’”

Then they set this oath before me, to swear that I would “obey, firmly and precisely, the laws and regulations to which a catholic person is bound — those contained in the Decretum, Decretals, Sext, and Clementines.”

I requested counsel, and a hearing date.

They said, “No. But you may have time until after our meal. You will figure it out — should you want to.”

So, after the ninth hour [3 p.m.], I appeared before the bishop. He admonished me once, twice, and a third time to swear the oath, then and there. I gave no word in reply. He denounced me as an excommunicate and sent me to a cell. Thus they persecuted the one whom the Father, in His grace, was striking along the way. They heaped more onto the pain of my wounds.

I asked the bishop to have my horse taken to his stable, and I gave what I had in my purse to the man leading it there. ...

The next day, the Augustinian master came to me in my cell and offered me tempting advice.

He promised that his lord the chancellor or the bishop would advocate for me if I would reach an agreement with them. Even if the things I said were true, he said, nevertheless because everyone was unanimously against me, I should yield to them. He said that he himself would heartily advocate for me and pray for me in particular during mass for a year.

“You should make sure,” I said, “that you will find your actions sufficient for yourself on the day of judgment.”

He said, “Unless you follow their instruction, you are looking to be burnt.”

“As God wishes, let it be done.”

... When I had read that oath, I thought about the agreement that I had undertaken not to press questions about the oath they gave me. I went to the knight, who was standing by the fire in front of the bench, and said to him, “This is not the oath that was agreed on. I will never swear this oath.”

“Will you not swear it with the limitation in your heart?”

“Very well. I will.”

The bishop was sitting on the bench, and I knelt before him. I said to the bishop, “My lord, if you wish, I am willing to swear the oath I agreed to swear, as limited in my heart by my lord this knight.”

“Then swear. Place your hand on the book.”

I put my hand on the book. They read the oath, and when they finished, I kissed the book, hoping that the bishop would not try to extract anything from me beyond the agreed-upon oath — if, indeed, the truth was that he wanted an agreement.

But they gave me another oath to read and to swear concerning the doctrine of the Eucharist, and yet another on confession ...

The Selfish Meme

'Culture, Creativity & Copyright' by David Simon in 28 Cardozo Arts & Entertainment Law Journal (2011) comments that -
Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.

A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator‘s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright‘s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.
Simon concludes -
Focusing on originality, and derivative rights, fair use, and moral rights, we made several observations.

As to originality, memetics shows that the current copyrightability — a standard that trivial variations satisfy — should be discarded. Most of these variations are simple and anticipated mutations that occur through the meme‘s replication process. Protecting such trivial variation impedes the replication of numerous memes, which might be useful for creating a new work. For that reason, this Article argued that the originality standard should be heightened, but left for further study the question of the standard‘s new height.

Derivative works were then examined and found to be too restrictive. Instead of allowing nearly every use containing the original work to constitute a derivative work, a less stringent model was suggested. Because trivial and inconsequential variations are inevitable during replication, it was suggested that the author retain rights over those variations. As to significant variations, however, this Article proposed that the creator would acquire a wholly separate copyright.

We also reexamined fair use. Here we saw that fair use still served at least two valuable purposes with new originality and derivative work standards. First, fair use was still needed to account for cases of socially valuable copying. Second, fair use provided breathing space for creativity that produces derivative works that are valuable, but are not creative enough to merit independent copyright protect.
Finally, under the memetic account of creativity, we say that moral rights needed to be adjusted. Given memetic theory, a dignity-based conception of moral rights seems unjustified. Moral rights, however, still found traction based on the same theory as originality: as an instrumental mechanism to produce more creative works.

All of these implications were drawn from memetic theory. This theory offers a chance to view copyright law outside the traditional scope of individual or group creators. Memetics doesn‘t fully do away with these categories, but places them in the background. Appearing in the foreground is the meme, which causes us to reevaluate our current conception of copyrights and creativity.

14 July 2011

Not just dumb

Greenpeace Australia has proudly announced that
A mum takes action against GM wheat

Greenpeace activists, including one mother who wants to protect her family, have stopped a GM wheat experiment outside Canberra this morning.

Three women used whipper snippers to remove a controversial genetically modified (GM) wheat crop before day break.

The activists constructed a decontamination area to safely dispose of the untested and potentially unstable GM organisms.

The activity follows the revelation that Australia’s peak scientific body, CSIRO, is conducting the world’s first human feeding trials of GM wheat, without adequate safety testing.

"This GM wheat should never have left the lab", said activist and mother, Heather McCabe. "I'm sick of being treated like a dumb Mum who doesn't understand the science. As far as I'm concerned, my family's health is just too important. GM wheat is not safe, and if the government can't protect the safety of my family, then I will."
One response might be that she's not just dumb; Ms McCabe's arguably a vandal who is happy to break the law in giving effect to romantic notions about GM. I wonder whether she'll next turn her attention to the old-fashioned breeding of plants and critters.

The ABC omitted the emo in reporting that
Greenpeace protesters have broken into a CSIRO experimental farm in Canberra to destroy a crop of genetically modified wheat.

In the early hours of this morning a group of Greenpeace protesters scaled the fence of the CSIRO experimental station at Ginninderra in the capital's north.

Greenpeace says activists were wearing Hazmat protective clothing and were equipped with weed string trimmers.
The Hazmat kit is a nice touch ... presumably useful in case the wheat tries to suck out the protesters' eyeballs or lure them into a crop circle to be beamed up by bug-eyed aliens working for the CIA.

The report continues -
About half a hectare of GM wheat is being grown on the site, as part of Australia's first outdoor trials.

No genetically modified wheat strain had ever been approved for cropping in Australia before.

Last month the CSIRO received permission to conduct Australia's first trial in which humans will eat GM wheat.

The wheat's genes have been modified to lower the glycemic index and increase fibre to create a product which will improve bowel health and increase nutritional value.

Animal feeding trials of up to three months have been conducted, with human trials at least six months away.

Greenpeace says it has taken action because of concerns over health, cross-contamination and the secrecy surrounding the experiments.
That apparently justifies a spot of direct action.
Campaigner Laura Kelly says the Federal Government needs to put an end to testing GM wheat in Australia. ... "No one is looking after the health of Australians. Julia Gillard isn't standing up to foreign GM countries to protect our daily bread so Greenpeace has to," she said.
Ooh, nothing like a dash of xenophobia among the bien pensants.
ACT Greens MLA Shane Rattenbury used to work for Greenpeace and says he is not surprised the group has taken such action.

"It's always very controversial these sorts of actions, but you have to stand up for what you believe in sometimes," he said.

"Greenpeace has clearly formed a view that the best way to both draw attention to this issue and to potentially protect the human food chain in Australia is to take this action."
Heaven forbid that they should engage with the legal system and develop effective legislation rather than self-involved agitprop. Greenpeace's actions may get favourable media coverage but, irrespective of the law, are problematical. Researchers are told to conduct field trials and other tests to determine the efficacy and safety of GMO crops. At the same time, the testing is sabotaged by vigilantes who assert that the crops are not safe and that 'activists' are right to ignore the law and destroy the field trials.

Identity factories

From 'Car thief flushed out after high-speed chase' by Stephanie Gardiner in today's SMH -
A man carrying stolen mail and a stash of bank statements and birth certificates has been arrested in the toilets of the Australian Museum after leading a dramatic chase through the city in a stolen car, police say.

A senior officer saw the driver of a black Holden Statesman run a red light on New South Head Road, Edgecliff, about 2.30pm yesterday and tried to pull the car over, police said.

The car allegedly sped away, reaching speeds of up to 100km/h through the Kings Cross Tunnel along William Street before crashing into the back of a car at the intersection of College Street.

Police said the driver ran into the museum and he was arrested in the toilets.

A search of the car uncovered stolen mail, photocopies of driver's licences and a number of bank statements and birth certificates, police said.

The car was allegedly stolen from Queensland last year and fitted with homemade Western Australia number plates.

Police said they also found documents under various names and equipment used to make fake documents at a hotel on Hickson Road.

The 34-year-old man has been charged with a string of offences, including two counts of possessing equipment to make false documents, two counts of goods in custody suspected of being stolen, possession of crystal methylamphetamine and one count of car theft.

13 July 2011

Human cloning

The 96 page report of the Independent Review of the Prohibition of Human Cloning for Reproduction Act 2002 and Research Involving Human Embryos Act 2002 [PDF] is now available.

The report was produced for the national parliament and the Council of Australian Governments (COAG) by a Review Committee chaired by former Federal Court judge Peter Heerey QC.

It considered the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) - initially the Prohibition of Human Cloning for Reproduction Act - and the Research Involving Human Embryos Act 2002 (Cth).

The Committee considers that the basic structure of the legislation should remain but offers 33 recommendations about the framework for human embryo research. Those recommendations centre on updating and clarifying the legislation, which bans human cloning "and other unacceptable practices" and imposes a strict regulatory regime, (including requirements for the consent of donors) on 'excess embryos' from assisted reproductive technology (ART) procedures. The legislation followed the 2001 Human Cloning: Scientific, Ethical and Regulatory Aspects of Human Cloning and Stem Cell Research report by the House of Representatives Standing Committee on Legal and Constitutional Affairs.

The terms of reference for the Review were to report on the scope and operation of the Acts, with recommendations regarding that take into account -
a) developments in assisted reproductive technology, including technological, medical and scientific developments, and the actual or potential clinical and therapeutic applications of such research;
b) developments in embryonic stem cell research, including technological, medical and scientific developments, and the actual or potential clinical and therapeutic applications of such research;
c) community standards;
d) a brief analysis of international developments and legislation relating to the use of human embryos and related research;
e) an analysis of research resulting from the licenses granted;
f) any National Stem Cell Centre and any national register of donated excess ART embryos;
g) an evaluation of the effectiveness of legislative provisions and NHMRC guidelines relating to proper consent;
h) an evaluation of the range of matters for which the NHMRC Licensing Committee may issue a licence and any recommendations to increase, decrease or alter these arising from the evaluation;
i) an analysis of any research or clinical practice which has been prevented as a result of legislative restrictions;
j) the extent to which the NHMRC Licensing Committee has effectively used information and education tools to assist researchers working in the field, and any ongoing need for legally binding rulings;
k) the extent of Commonwealth/State cooperation in the area of human embryo research and the requirement for further Commonwealth or State legislation on the matter.
The report features 33 recommendations -
R1: Cloning of a human being for reproduction should remain a criminal offence. The other criminal offences in the Prohibition of Human Cloning for Reproduction Act 2002 should also remain.

R2: Research involving embryos and ES cells should continue to be permitted subject to the statutory controls in the present legislation.

R3: Provisions in the current legislation regarding SCNT should not be amended. However, in reaching this recommendation, the Review Committee notes the lack of progress in SCNT research in animals and humans. The Committee believes that this must impact on the Licensing Committee’s interpretation of its statutory obligation, when it is considering any future application for a licence to undertake research involving SCNT, to take into account ‘the likelihood of significant advance in knowledge or improvement in technologies for treatment as a result of the use of excess ART embryos or human eggs, or the creation or use of other embryos, proposed in the application, which could not reasonably be achieved by other means’ when it is considering any future application for a licence to undertake research involving SCNT.

R4: Provisions in the current legislation regarding the cooling-off period related to the use of excess ART embryos for research should not be amended.

R5: There should be no change to the legislation that would permit research on embryos later than the point where the egg divides into two cells (the first mitotic division).

R6: There should be no change to s 21 of the Prohibition of Human Cloning for Reproduction Act 2002 in relation to the payment of ‘reasonable expenses’.

R7: There should be no change to the current legislation in relation to the use of DNA from more than two persons.

R8: The current framework for research involving human embryos which involves ethical assessment by a Human Research Ethics Committee and assessment of applications for licenses by the Licensing Committee should continue.

R9: In consultation with the Licensing Committee and other relevant stakeholders, the AHEC and NHMRC should establish a system of credentialing for HRECs that consider research involving embryos.

R10: s20(1)(d) of the Research Involving Human Embryos Act 2002 should remain unchanged, permitting under licence the creation and use for research purposes of human embryos using precursor cells from a human embryo or a human fetus.

R11: s 20(1) of the Research Involving Human Embryos Act 2002 should be amended to include that a person may apply to the NHMRC Licensing Committee for a licence authorising the creation and use of human embryos by fertilisation of a human egg by a human IVD sperm, fertilisation of a human IVD egg by human sperm, and fertilisation of a human IVD egg with human IVD sperm, in each case provided that the sperm and egg are not derived from the same person.

R12: The legislation should be amended to include a definition of IVD gametes. Such a definition could be ‘human sperm or eggs derived from precursor cells or by in vitro means’.

R13: s 20(4) of the Prohibition of Human Cloning for Reproduction Act 2002 should be amended to include embryos created with the use of IVD sperm or eggs in the definition of ‘prohibited embryo’. Such a definition could include ‘hybrid embryos within the meaning of s 8 of this Act’.

R14: The Prohibition of Human Cloning for Reproduction Act 2002 should be amended to extend the definition of ‘hybrid embryos’ to include an embryo created by the use of IVD gametes. Such a definition could be ‘In the foregoing human egg or human sperm includes IVD gametes’.

R15: s 21 of the Prohibition of Human Cloning for Reproduction Act 2002 should be amended to include IVD gametes.

R16: There should be no specific definition of human sperm and egg.

R17: The Prohibition of Human Cloning for Reproduction Act 2002 should be amended to include a definition of fertilisation.

R18: s 8 of the Research Involving Human Embryos Act 2002 should be amended to clarify who is required to give consent in relation to donation of fetal tissues and who is required to give consent in relation to donation of failed-to-fertilise or abnormally fertilised eggs.

R19: s 24(5) of the Research Involving Human Embryos Act 2002 should be amended to provide that a condition of a licence may include a limitation on the number of embryos or eggs for which consent is to be obtained prior to research use.

R20: When the current NHMRC Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research undergo review, consideration should be given to including guidance that excess embryos donated for research should be kept in storage for a maximum of five years, after which their custodians should arrange for the respectful disposal of these embryos. Consideration should also be given to guidance that respectful disposal of these embryos should occur if it becomes clear even within that five year period that these embryos are most unlikely to be used in research.

R21: The term ‘significant advance’ in s 21(4) of the Research Involving Human Embryos Act 2002 should not be the subject of legislative definition.

R22: s 21(2) of the Research Involving Human Embryos Act 2002 should be amended to provide that the Licensing Committee may require that an application be withdrawn if the Licensing Committee does not have sufficient information to allow it to make a decision to issue or not issue a licence.

R23: s 26 of the Research Involving Human Embryos Act 2002 should be amended to provide that the Licensing Committee may, by notice in writing to the licence holder, suspend or revoke a licence if it considers that the endpoints of the licensed activity have been achieved or that the licensed activity no longer would be expected to lead to a significant advance.

R24: s 26 of the Research Involving Human Embryos Act 2002 should be amended to provide that the Licensing Committee may, by notice in writing to the licence holder, suspend or revoke a licence if the Licensing Committee believes on reasonable grounds it is necessary or desirable to do so.

R25: s 27 of the Research Involving Human Embryos Act 2002 should be amended to provide that a licence may only be surrendered with the prior consent of the Licensing Committee.

R26: s 21(3)(c) of the Research Involving Human Embryos Act 2002 should be amended to provide that a HREC should have regard, amongst other things, to the matters which the Licensing Committee itself must have regard under s 21(3) and s 21 (4).

R27: There should be no change to the categories of membership of the Licensing Committee.

R28: Note (b) to s 23B(3) of the Prohibition of Human Cloning for Reproduction Act 2002 should be amended to reflect s 20(1)(f) of the Research Involving Human Embryos Act 2002.

R29: ss 26(2) and 41 of the Research Involving Human Embryos Act 2002 should be amended to refer to the Prohibition of Human Cloning for Reproduction Act 2002.

R30: The Research Involving Human Embryos Act 2002 and the Prohibition of Human Cloning for Reproduction Act 2002 should be amended to make reference to the Ethical guidelines on the use of assisted reproductive technology in clinical practice and research and the National statement on ethical conduct in human research as in force from time to time.

R31: The Research Involving Human Embryos Act 2002 and the Prohibition of Human Cloning for Reproduction Act 2002 should be amended to make reference to a National Stem Cell Bank instead of a National Stem Cell Centre.

R32: s 1 of the Research Involving Human Embryos Act 2002 should be updated to list specified prescribed bodies such asthe Australian Academy of Science, CHOICE, Law Council of Australia, Australasian Association of Bioethics and Health Law, Fertility Society of Australia and Society for Reproductive Biology

R33: The Research Involving Human Embryos Act 2002 and the Prohibition of Human Cloning for Reproduction Act 2002 should be amended to provide for a review of these Acts be undertaken at five year intervals.

12 July 2011


In a recent testimony at a Senate inquiry I noted issues regarding self-regulation within the outdoor advertising industry, highlighting that although consumers can choose not to watch some television channels or listen to radio stations they are confronted by billboards that in practice cannot be evaded by people who drive down Parramatta Road or other locations. You can switch off the device but you can't independently make the humungous billboard ad from Advanced Medical Institute (AMI) disappear.

The House of Representatives Standing Committee on Social Policy & Legal Affairs has released its 143 page report titled Reclaiming public space: inquiry into the regulation of billboard and outdoor advertising [PDF].

The Committee comments that -
outdoor advertising constitutes a specific category of advertising because of the way that it occupies public spaces, dominates civic landscape, and targets captive, unrestricted audiences. The inquiry addressed particular concerns about the impact of increasing, cumulative and sustained exposure to advertisements that contain sexual, discriminatory or violent material and to advertisements for alcohol and unhealthy foods and beverages.

As such, ... industry self-regulation of advertising standards needs to include a specific code of practice for outdoor advertising. This code of practice should reflect the particular nature of outdoor advertising, recognising that all members of society are exposed to it and do not have a choice about viewing it. Community sentiment supported the Committee’s opinion that there is a need to reclaim public space from any wayward interests of commercial advertising.

Furthermore, the self-regulatory system for advertising as a whole requires strengthening to address some of the concerns that were raised at public hearings and in submissions to the inquiry.

The definition of 'community standards' is a contentious issue, given the wide range of views held by all members of society. More research into community attitudes about outdoor advertising standards should be conducted to increase the public’s confidence in decisions about advertising that purport to reflect community norms.

Moreover, the Committee recommends that the advertising self-regulatory system adopt international best practice measures such as the provision of independent advice to advertisers on their advertising content prior to publication, and the establishment of a monitoring role to promote high levels of compliance with the voluntary advertising codes.

This report contains many recommendations to advertising industry bodies. The Committee expects the recommendations to be adopted and implemented by the relevant bodies, as the industry has demonstrated that it is keen to preserve the system of self-regulation. However, if the industry does not demonstrate over the next few years that self-regulation can appropriately operate within the bounds of community expectations for appropriate outdoor advertising, then the Committee strongly recommends that the Australian Government institute regulatory measures.

Public spaces are for the use of all members of the community — men, women and children — and the right to enjoy the amenity of a space should not be compromised by an advertiser’s array of inappropriate images. This report has listened to the Australian community and, on behalf of the Australian community, it says enough is enough. It is time to reclaim our public spaces.
The Committee's Terms of reference were to "report matters relating to the extent to which the current arrangements for the regulation of billboard advertising continues to be an effective method for managing this form of advertising in Australia in line with Australian community expectations", considering -
1. the existing self-regulatory scheme for advertising
2. whether the current arrangements, including the Industry Codes administered by the Advertising Standards Bureau, meet community concerns about billboard advertising
3. trade practices and fair trading legislation in all jurisdictions that contain consumer protection provisions that prohibit false, misleading and deceptive advertising
4. technical developments in billboard advertising, if any
5. the rate and nature of complaints about billboard advertising
6. any improvements that may be made to current arrangements
7. the desirability of minimising the regulatory burden on business, and
8. any other related matter.
Its recommendations are -
R1 — Advertising and industry bodies
— that the Australian Association of National Advertisers (AANA), the Advertising Standards Board (ASB), the Australian Food & Grocery Council (AFGC), the Federal Chamber of Automotive Industries (FCAI)and the Alcohol Beverages Advertising Code Scheme (ABAC) report to the Attorney-General's (AG's) Department by 30 December 2011 detailing their responses and how the relevant recommendations will be implemented.

— that the Australian Association of National Advertisers, the Advertising Standards Board, the Australian Food & Grocery Council, the Federal Chamber of Automotive Industries and the Alcohol Beverages Advertising Code Scheme provide a comprehensive report to the AG’s Department by 30 December 2012 detailing how the relevant recommendations contained in this report have been implemented.

R2 — Australian Government
— that the Attorney-General’s Department review by 30 June 2013 the self-regulatory system for advertising by evaluating the industry implementation reports and assessing the extent to which there has been effective implementation of the recommendations contained in this report. If the self-regulatory system is found lacking, the Committee recommends that the AG's Department impose a self-funded co-regulatory system on advertising with government input into advertising codes of practice.

— that the AG’s Department conduct five-yearly reviews of the advertising regulatory system to ensure that technological advances and changes in advertising trends are being addressed adequately in line with community expectations.

R3 — Australian Association of National Advertisers
— that the Australian Association of National Advertisers introduce a code of practice for out-of-home advertising and for use by the Advertising Standards Board when determining complaints about out-of-home advertising. The code of practice should recognise that out-of-home advertisements:
• occupy public space and have the potential to affect the amenity of that space for some community members;
• can be viewed by an unrestricted audience, regardless of their target audience; and
• have a cumulative impact on the community through the social messages they convey.
R4 — Australian Government
— that the AG’s Department investigate, through its anti-discrimination legislation consolidation project, how to include the unrestricted display of racist or sexualised images in the public space under the scope of discriminatory practice.

R5 — Advertising Standards Bureau
— that the Advertising Standards Bureau introduce a transparent copy advice service, which provides independent advice on the suitability of proposed advertisements, for all outdoor advertising.

R6 — Advertising Standards Bureau
— that the Advertising Standards Bureau conduct and publish annual random compliance surveys of outdoor advertising across specific industries and specific elements of advertising codes, such as:
• the food and beverage sector;
• the alcohol sector;
• outdoor advertising that portrays children;
• advertising at event venues and sportsgrounds; and
• outdoor advertising that portrays sex, sexuality or nudity.
— that Advertising Standards Board members take on a formal monitoring role of outdoor advertising and self-initiate investigations where warranted. The Committee considers that the compliance surveys would inform the monitoring role.

R7— Australian Association of National Advertisers
— that the Australian Association of National Advertisers establish a more regular program to review each of the voluntary codes of advertising, in consultation with stakeholders and relevant organisations and experts in the field.

R8 — Australian Association of National Advertisers
— that the Australian Association of National Advertisers amend its Advertising Code of Ethics to proscribe sexual objectification of men, women and children.

R9 — Advertising Standards Bureau
— that the Advertising Standards Bureau, in conjunction with relevant industry bodies, conduct research every two years into:
• community perceptions of the use of sex, sexuality and nudity in advertising in general and specifically in outdoor advertising;
• prevailing community standards on health and safety in advertising in general and specifically in outdoor advertising;
• prevailing community standards on the advertising of food and beverages;
• prevailing community standards on advertising to children; and
• prevailing community standards on the advertising of alcohol.
These findings should be reflected accordingly in determinations by the Advertising Standards Board.

R10 — Alcohol Beverages Advertising Code
— that the Alcohol Beverages Advertising Code Scheme conduct research every two years into prevailing community standards on the advertising of alcohol. This research should include particular reference to outdoor advertising and the findings should be reflected accordingly in Alcohol Beverages Advertising Code panel determinations.

R11 — Australian governments
— that the Monitoring of Alcohol Advertising Committee continue to monitor alcohol advertising and report annually to the Intergovernmental Committee on Drugs.

— that the Intergovernmental Committee oversee the operation of the Alcohol Beverages Advertising Code Scheme and provide reports every two years of its assessed effectiveness to Health ministers.

R12 — Federal Chamber of Automotive Industries
— that the Federal Chamber of Automotive Industries conduct transparent reviews of the Voluntary Code of Practice for Motor Vehicle Advertising every two years in consultation with road safety authorities and government representatives, and publish the findings of the reviews on the Federal Chamber of Automotive Industries website.

R13 — Australian Association of National Advertisers
— that the Australian Association of National Advertisers amend the Australian Association of National Advertisers Food & Beverage Code to include sports sponsorship as a form of advertising and therefore subject to advertising codes of practice. This should be implemented by 30 October 2011.

R14 — Australian Food and Grocery Council
— that the Australian Food & Grocery Council act immediately to include outdoor advertising in the definition of 'media' as it applies to the Responsible Children's Marketing Initiative. This should be in place by 30 October 2011, notwithstanding that a review of the Responsible Children’s Marketing Initiative is scheduled for 2012.

— that the Australian Food & Grocery Council amend both the Quick Service Restaurant Industry Initiative for Responsible Advertising & Marketing to Children and the Responsible Children's Marketing Initiative to include sports sponsorship as a form of advertising. This should be implemented by 30 October 2011.

R15 — Advertising Standards Bureau
— that the Advertising Standards Bureau amend its complaint process to also accept complaints about advertising by telephone and email and accept and investigate anonymous complaints. These changes should be implemented by 30 October 2011.

R16 — Advertising Standards Bureau
— that the Advertising Standards Bureau establish regular nation-wide information and awareness campaigns about the advertising complaints system across all forms of media, including outdoor, television and print. In particular, information on the outdoor advertising code, once it is developed, and the complaints process should be provided to:
• all federal and state or territory elected representatives; and
• the Australian Local Government Association for distribution to local governments.
R17 — Advertising bodies
— that the Australian Association of National Advertisers require its members to forward any complaints from the public about their advertising to the Advertising Standards Bureau.

— that the Outdoor Media Association require its members to forward any complaints from the public about their advertising displays to the Advertising Standards Bureau.

R18 — Advertising Standards Bureau
— that the Advertising Standards Bureau address instances of advertiser non-compliance by:
• establishing a dedicated webpage, easily accessible from the Advertising Standards Bureau website, that names advertisers, and their products, who have breached advertising standards or refused to comply with Board determinations;
• circulating the names of non-compliant advertisers in industry newsletters and other means of communication;
• providing the names of non-compliant advertisers to the Outdoor Media Association and encouraging their members to consider not accepting advertisements from them;
• providing the names of non-compliant advertisers to the Attorney-General so that the AG’s Department can consider legislation that would require the naming of non-compliant advertisers in Parliament, similar to the Equal Opportunity for Women in the Workplace Act 1999 (Cth); and
• reporting annually to the AG’s Department on the non-compliance rate and steps taken to achieve compliance.
R19 — Advertising Standards Bureau
— that the Advertising Standards Bureau strengthen the independent review process by:
• providing a comprehensive explanation of the independent review process on its website and in informational material to increase the public’s understanding of the role of the Independent Reviewer;
• tasking the Independent Reviewer with checking a random sample of determinations annually to assess the validity of Advertising Standards Board determinations that have not been appealed formally; and
• aiming for 90% or higher Independent Reviewer agreement with Advertising Standards Board determination processes in the random sample.