24 September 2011


From Conrad Black's self-absorbed interview in Vanity Fair -
Of course, I know nothing precise about what goes on in News Corp. but it has been for decades a rigorously micro-managed company and Rupert Murdoch has created and flaunted an attitude of unlimited right to intrude on, harass, and to the limit that may be legally feasible, defame people whom he or his editors target. The News Corp. company ethos is one of lawlessness and unrestrained liberty self-righteously to do what it wants, inflated by notions of decisive political influence. I doubt if he personally ordered telephone or internet intercepts on individuals, but he must have known that some of his employees did them routinely, going back, at the latest, to some of the famous cell-phone conversations of the Prince of Wales. Murdoch deserves all the credit for building so powerful a company that most of its institutional self-confidence was justified, and most of the discredit for the sleazy way he operated it. I would add that I was more offended by the cowardice and hypocrisy of those in the British Establishment who licked his boots — not to mention other places — for decades, and now swaddle themselves in shock sanctimony than I was by the offensive activities.
On life in prison -
All that day and the next, inmates approached to introduce themselves. Almost all had been following his case on CNN, and all, Black says, were as pleasant as could be. One — "a Wall Street Journal subscriber," Black recalls — showed him the cafeteria. That first night, Black noticed a well-coiffed prisoner approaching, trailing a phalanx of other inmates. The man, who turned out to be a senior member of the Genovese crime family, smiled and held out his hand. "Welcome, Mr. Black," he said. "No one will bother you here. If you catch a cold, we will find out who you got it from." He smiled again. "You know, we have much in common."

"Because we are victims of an unjust system?" Black offered.

"Not just that," the mafioso said. “We are industrialists.”

For whatever reason, in fact, Black says, he was never bothered or harassed by other inmates. "Yes, well, I quickly developed alliances with the Mafia people, then the Cubans. I was friendly with the 'good ol' boys' and the African-Americans. They all understood I had fought the system, and I do believe I earned their respect for that." He takes a sip of wine. "Everyone got along, you know, except with the child-molesters. There was the occasional scuffle there, I heard."
And on his self-reflection ...
As he worked on his memoir, Black spent long hours considering his ordeal. He picks at a dessert cookie. "What I’ve been trying to do the last eight years is to deduce, at a very fundamental level, what is the message of all this?" he muses. "I don't doubt that I am a humbler, more sensitive person now that I have experienced conditions with which I'd had little experience. I've worked hard to find something meaningful. You have to believe, whether you are cleaning latrines or tutoring inmates, that it served some purpose. I have tried to make the most of an unjust charge, and in this book I have tried to expose the injustice of a system that is at the very core of this great country. That is the takeaway from all this, I think."

He smiles. "You know, the judge told me she thought I was a better man now, and I took that as a sort of head-patting expression on her part, you know, that she had the wisdom to send me to prison. But I think she’s right. I probably am. It is a broadening experience."
The interview promotes Black's forthcoming book. He'd have been better served with a more probing account - less emphasis on his return to the family estate (12 cars etc) and supposed victimisation, more on business and the law.

Secrecy post-Wikileaks

The FAS points to the 32 page Criminal Prohibitions on the Publication of Classified Defense Information (Congressional Research Service 7-5700 R41404) by Jennifer Elsea [PDF].

Elsea's brief indicates that -
online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by The New York Times and other news media have focused attention on whether such publication violates US criminal law. The suspected source of the material, Army Private Bradley Manning, has been charged with a number of offenses under the Uniform Code of Military Justice (UCMJ), including aiding the enemy, while a grand jury in Virginia is deciding whether to indict any civilians in connection with the disclosure. A number of other cases involving charges under the Espionage Act demonstrate the Obama Administration’s relatively hard-line policy with respect to the prosecution of persons suspected of leaking classified information to the media.

This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.

This report discusses the statutory prohibitions that may be implicated, including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals.

The report provides a summary of recent legislation relevant to the issue (H.R. 703, S. 315, S. 355, H.R. 1823) as well as some previous efforts to criminalize the unauthorized disclosure of classified information.
Elsea comments that -
... it seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate many of the documents at issue, as long as the intent element can be satisfied and potential damage to national security can be demonstrated. There is some authority, however, for interpreting 18 U.S.C. Section 793, which prohibits the communication, transmission, or delivery of protected information to anyone not entitled to possess it, to exclude the “publication” of material by the media. Publication is not expressly proscribed in 18 U.S.C. Section 794(a), either, although it is possible that publishing covered information in the media could be construed as an “indirect” transmission of such information to a foreign party, as long as the intent that the information reach said party can be demonstrated.

The death penalty is available under that subsection if the offense results in the identification and subsequent death of “an individual acting as an agent of the United States,”83 or the disclosure of information relating to certain other broadly defined defense matters. The word “publishes” does appear in 18 U.S.C. Section 794(b), which applies to wartime disclosures of information related to the “public defense” that “might be useful to the enemy” and is in fact intended to be communicated to the enemy. The types of information covered seem to be limited to military plans and information about fortifications and the like, which may exclude data related to purely historical matters.

Moreover, the statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and CRS is aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.
In identifying post-Wikileaks measures she comments that -
The Securing Human Intelligence and Enforcing Lawful Dissemination Act (“SHIELD Act”), S. 315, introduced by Senator Ensign on February 10, 2011, and a companion bill in the House, H.R. 703, would amend 18 U.S.C. Section 798 to add coverage for disclosures of classified information related to human intelligence activities (the provision currently covers only certain information related to communications intelligence). The bills would add “transnational threat” to the entities whose benefit from unlawful disclosures would make such disclosure illegal. The statute as written prohibits disclosure of classified information for the benefit of any foreign government (or to the detriment of the United States, which would remain unchanged if the bill is enacted). A “transnational threat” for purposes of the bills means any ‘‘any transnational activity (including international terrorism, narcotics trafficking, the proliferation of weapons of mass destruction and the delivery systems for such weapons, and organized crime) that threatens the national security of the United States” or any person or group who engages in any of these activities. This change is likely intended to ensure that disclosures of any covered information that a violator “publishes, or uses in any manner … for the benefit” of Al Qaeda or any other terrorist group, international drug cartels, arms dealers who traffic in weapons of mass destruction, and other international criminals will be subject to prosecution, regardless of whether the group purports to govern any territory. As is currently the case, it is unclear whether this conduct must be undertaken “knowingly and willfully” to incur a punishment, or whether those qualifiers apply only to furnishing covered information to an unauthorized individual.

The bills would add two types of information to be covered by the prohibition: “information concerning the human intelligence activities of the United States or any foreign government”; and “information concerning the identity of a classified source or informant of an element of the intelligence community of the United States.” “Human intelligence” is defined under the bills as “all procedures, sources, and methods employed in the collection of intelligence through human sources.” “Classified information” would be defined, as in the current provision, as “information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution.” In other words, the information need not be classified information within the meaning of the executive order, so long as it has been specifically designated as subject to some form of restricted dissemination due to national security concerns. Because the concept of national security includes foreign affairs as well as national defense, the information covered may already be broader than that protected under the preceding sections of the Espionage Act.

However, the proposed limitation on the identity of informants and sources to those giving information to an element of the intelligence community may be interpreted to exclude informants and sources who provide information to entities not listed in 50 U.S.C. Section 401a(4), such as infantry units or consular offices.

Senator Cardin introduced the Espionage Statutes Modernization Act of 2010, S. 355, on February 15, 2011. This bill would broaden the Espionage Act provisions by extending their coverage to all classified information related to the national security (rather than merely national defense information) and would incorporate non-state threats into the prohibition by substituting “foreign power” (as defined under the Foreign Intelligence Surveillance Act, at 50 U.S.C. Section 1801) for “foreign government” or “foreign nation.” The bill also includes a new provision to be codified at 18 U.S.C. Section 1925 to prohibit the intentional unauthorized disclosure of properly classified information by government employees, contractors, or consultants in violation of the terms of a nondisclosure agreement, provides for extraterritorial jurisdiction over the offense, and instructs the U.S. Sentencing Commission to review and amend as appropriate the Sentencing Guidelines with respect to the new provision to take into consideration a number of factors relevant to the nature and scope of the offending disclosures.

H.R. 1823, the Criminal Code Modernization and Simplification Act of 2011, would overhaul the Espionage Act along with the rest of title 18, U.S. Code. Chapter 15, subchapter E of the proposed criminal code would replace the Espionage Act with three sections. Section 302 would prohibit the gathering of defense information or its transmission to any person not entitled to receive it, if done with the intent or reason to believe it “will be used to the injury of the United States, or to the advantage of any foreign power.” Section 303 would apply only to those having lawful possession or control of defense information, providing for punishment of not more than 10 years’ imprisonment in the event they recklessly permit it to be lost, stolen, or destroyed, or fail to report such an eventuality to an appropriate superior officer. Section 304 would prohibit the knowing disclosure of classified or similarly protected information to a person not entitled to receive it, or the use of such information to the injury of the United States or the advantage of a foreign power. Protected information would include restricted data under the Atomic Energy Act or information designated by the U.S. government as restricted on the basis of some relationship to cryptographic systems or communications intelligence, in substance as defined under current 18 U.S.C. Section 798. The proposed language eliminates any reference to specific items containing defense information or to specific means of acquiring or disseminating it, but otherwise appears to track the current law. The substitution of “foreign power” (as defined in the Foreign Intelligence Surveillance Act) for “foreign government” is perhaps the most noteworthy change from the Espionage Act as currently in force.
Elsea concludes that -
The Espionage Act on its face applies to the receipt and unauthorized dissemination of national defense information, which has been interpreted broadly to cover closely held government materials related to U.S. military operations, facilities, and personnel. It has been interpreted to cover the activities of foreign nationals overseas, at least when they take an active part in seeking out information.

Although cases involving disclosures of classified information to the press have been rare, it seems clear that courts have regarded such disclosures by government employees to be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger or the value the release of such information might impart to public discourse. The Supreme Court has stated, however, that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment. Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected. Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make.

Corporations and Defamation

'Corporations' Right to Sue for Defamation: An Australian Perspective' by David Rolph in 22 Entertainment Law Review (2011) 195-200 comments that -
As the United Kingdom undergoes defamation law reform, it might be useful to consider recent Australian developments. Across Australia, since 2006, corporations have had the right to sue for defamation severely curtailed. After five years of operation, it is possible to make an assessment of the advantages and disadvantages of this reform. This article analyses recent cases in which corporations have been forced to rely on alternative causes of action, which previously would have been dealt with as defamation claims. It argues that the reform is sound as a matter of principle and policy but that the particular form of the legislative provision requires refinement. In addition, this article points out that there have been unintended and undesirable consequences to this reform.
In discussing such consequences Rolph states that -
One obvious and anticipated effect has been that corporations have been compelled to rely on alternative causes of action available to them, usually without the success that they might have received had they been able to sue for defamation.

A clear example is Bond v Barry (2007) 83 IPR 490; [2007] FCA 1484. In this case, high-profile entrepreneur, Alan Bond, and Lesotho Diamond Corporation plc commenced proceedings in the Federal Court of Australia against freelance journalist, Paul Barry, newspaper editor, Neil Breen, and two tabloid newspapers, The Sunday Telegraph and The Sunday Times, alleging misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) s 52. They claimed that an article written by Barry and published by the newspapers falsely alleged, inter alia, that Bond had effectively taken over Lesotho Diamond, to the exclusion of other directors and shareholders, and was extracting the maximum personal benefits he could from the company. The respondents applied to have the proceedings summarily dismissed on the basis that they had a complete defence as ‘prescribed information providers’. Under trade practices legislation in Australia, there are specific defences to misleading or deceptive conduct. The range of defamation defences are not incorporated into that legislation. The 'prescribed information provider' defence is a broad, but not absolute, protection, allowing media organisations to avoid liability for misleading or deceptive conduct, where the media outlet is engaged in its core business of newsgathering and journalism. At first instance, French J (as his Honour then was) acceded to the respondents’ application and his decision was upheld on appeal to the Full Federal Court.

The availability of this defence reinforces the forensic disadvantages a corporation confronts in using misleading or deceptive conduct as an alternative to defamation. Prior to the national, uniform defamation laws, this case would have been pleaded as a straightforward claim for defamation.

Another case in which a corporation was left without a remedy, which it would have had prior to the introduction of the restrictions on the right of corporations to sue for defamation, is AMI Australia Holdings Pty Ltd v John Fairfax Publications Pty Ltd [2010] NSWSC 1395. AMI provides goods and services relating to the treatment of erectile dysfunction and premature ejaculation. Its most prominent product is a nasal spray which it claims addresses these conditions. AMI principally sells its treatments through telephone consultations. Dr Rita Almothy worked for AMI but became increasingly concerned about its practices. Whilst working for AMI, she signed an agreement which contained a clause prohibiting her disclosure, use or reproduction of any confidential information acquired during the course of her employment. After she left AMI, Dr Almothy met with two journalists from The Sydney Morning Herald newspaper and provided them with patient consultation notes and other documents she had retained. The journalists drafted articles based on the material provided by Dr Almothy and, prior to publication, sought comment from AMI. Having been put on notice about the intended publication, AMI obtained an interim injunction Unable to sue for defamation, AMI brought proceedings against Fairfax for breach of confidence and injurious falsehood. Brereton J found that the proposed articles conveyed five false imputation, to the effect that AMI paid commissions to doctors to get them to keep consultations brief and to increase the volume of patients treated;that AMI threatened or reprimanded doctors who mentioned too many side effects of its products and services to patients; that AMI made claims about its products and services which were unsupported by scientific evidence; that AMI allowed customer service operators and nurses, rather than doctors, to provide medical advice to, and to write prescriptions for, customers; and that AMI employed doctors who were under supervision from the New South Wales Medical Board. However, his Honour was not satisfied that AMI had proven that the journalists were actuated by malice. Thus, AMI’s claim for injurious falsehood failed. Brereton J touched upon, but did not resolve, the difficult issue of whether false information can be confidential.

However, his Honour was able to dismiss the claim for breach of confidence on the basis that the journalists did not know or ought not to have that the information contained in the imputations was provided in breach of confidence He drew a distinction between the information contained in the imputations and the documents. In relation to the latter, Brereton J found that the journalists knew or ought to have known that the documents were being provided to them in breach of confidence.
Thus, his Honour ordered the delivery up of the documents but otherwise dismissed the proceedings. The Sydney Morning Herald was thus able to publish the articles with impunity. Given Brereton J’s findings, AMI would have had a viable cause of action in defamation. In the absence of a right to sue for defamation, AMI was left without any effective protection of its interest against publication.

In some cases courts have prevented corporations from seeking to subvert the restrictions on corporations’ right to sue for defamation. For instance, in AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970, AAMAC obtained an ex parte injunction restraining The Sydney Morning Herald from publishing allegations that its waterfront business was knowingly involved or affiliated with gangland or criminal activities and that it knowingly provided the services of prostitutes on Sydney harbour cruises. The injunctive relief was sought on the basis of injurious falsehood and misleading or deceptive conduct under the Fair Trading Act 1987 (NSW) s 42. At a contested hearing, Slattery J set aside the injunction on the basis that the witnesses for AAMAC breached their obligation of utmost good faith in giving evidence at the ex parte injunction.

A witness for AAMAC testified that women from ‘restaurants’ were procured to act as waitresses on the harbour cruises without disclosing that the restaurants in question were topless restaurants or strip clubs and that the waitressing services provided on the harbour cruises were also performed partially orfully naked.
The sales manager of AAMAC also misled the court about his past involvement with a convicted drug smuggler and his own criminal record. His Honour found that these non-disclosures were deliberate. On a fresh application, Slattery J refused to grant an injunction. Again, AAMAC relied upon claims for injurious falsehood and misleading or deceptive conduct. His Honour found that there was no serious question to be tried on the issue of injurious falsehood because there was no arguable case on malice. His Honour found that there was no serious question to be tried on the issue of misleading or deceptive conduct because there was no evidence to suggest that Fairfax was disentitled from relying on the ‘prescribed information provider’ exemption under the Fair Trading Act 1987 (NSW) s 60. Slattery J concluded that AAMAC’s claim was essentially a defamation action, not a claim for either of the pleaded causes of action. As such, AAMAC was not entitled to an injunction. Again, this case demonstrates that companies have been deprived of the high level of reputational protection they previously enjoyed. This may not necessarily be undesirable. As Slattery J noted, what The Sydney Morning Herald proposed to publish in this case clearly related to a matter of public interest, namely corruption on the Sydney docks.

The restriction on the right of corporations to sue for defamation may have had some unintended consequences, as the decision in Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 illustrates. The plaintiff building company sought an injunction to restrain the defendant building consultant, Charles Camenzuli, from posting highly critical material on a website. Camenzuli claimed, inter alia, that Beechwood Homes was a ‘shonky builder’, acted in underhand or dishonest ways and bullied dissatisfied customers. Beechwood Homes framed its claim in injurious falsehood and misleading or deceptive conduct under the Fair Trading Act 1987 (NSW) s 42. Camenzuli resisted the injunction on the basis that Beechwood Homes had impermissibly relied on these causes of action in order to subvert not only the legislative restriction on corporations’ right to sue for defamation but also the restrictive approach to the grant of interlocutory injunctions in defamation cases. Harrison J found that these causes of action were clearly open to Beechwood Homes on the facts and there was no subversion of any principle in it seeking to rely upon them. The restriction on corporations being able to sue for defamation was motivated, in part, by a concern that corporations could and sometimes did use their resources to ‘chill’ speech. Depriving large corporations of the right to sue for defamation and compelling them to rely on other causes of action with more onerous requirements was intended to facilitate freedom of speech. However, these other causes of action do not have the restrictive approach to injunctive relief that defamation does.

In seeking to prevent corporations from ‘chilling’ speech, the national, uniform defamation laws allow corporations to stop speech entirely by reliance on other causes of action. This was not a matter anticipated by law reformers responsible for this change to Australian defamation law. It might be usefully revisited in any future defamation law review or reform.

23 September 2011


'Conflicting Rights: English Adoption Law and the Implementation of the UNCRC' (University of Cambridge Faculty of Law Research Paper No. 30/2011) by Brian Sloan comments that -
Under the Adoption Act 1976, the welfare of a child to be adopted was merely the first consideration in adoption decisions in England and Wales. The child‘s welfare became the paramount consideration when the Adoption and Children Act 2002 was commenced in 2005. This ostensibly brought English Law into line with Article 21 of the United Nations Convention on the Rights of the Child (the UNCRC or the Convention), which requires states inter alia to ensure that the best interests of the child shall be the paramount consideration in the context of adoption. Of course the Convention as a whole has not yet been incorporated into English Law, a state of affairs that continues to cause concern for the UN Committee on the Rights of the Child. But Baroness Hale has recently emphasised in the Supreme Court that the Convention imposes binding obligation[s] in international law. Moreover, the UNCRC is cited by the European Court of Human Rights when applying the European Convention on Human Rights (the ECHR), which has been incorporated into English Law, and the Convention is an important measure of the protection afforded to children‘s rights in national law.

This article considers the scheme of the 2002 Act and conducts a survey of the domestic adoption case law under it in the light of some of the requirements of the UNCRC, with particular reference to the implications of the Act for the prospective adopted child‘s relationship with his birth family. It is particularly appropriate to consider the overall consistency of the Act with the UNCRC (as distinct from the ECHR, where the focus of scholarly discussion often tends to lie) given that the terminology of the Act appears explicitly to ensure compatibility and may thereby generate political advantage for the Government of the day.

The article argues, however, that the judiciary‘s understanding of the paramountcy‘ of best interests when applying the Act, their treatment of the child‘s birth parents and his relationship with those parents and their frequent emphasis on achieving a secure adoption placement irrespective of the other interests involved may risk infringing certain provisions of the Convention. Those provisions include Article 21 itself, which requires that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians‘ and makes specific reference to the informed consent to the adoption‘ of relevant persons. Other pertinent provisions of the Convention include Article 7, which protects the right of the child to know and to be cared for by his parents as far as possible; and Article 8, under which the child has a right to preserve his identity and family relations.

It is not contended in this article that the additional rights protected by the UNCRC should be given priority over the child's judicially-determined individual and immediate best interests in every adoption decision. But the article highlights the fact that the implementation of the UNCRC in the field of adoption law is far from straightforward. It begins by examining the paramountcy of best interests under the Convention and English Law and analysing the implications of other aspects of the Convention. It then considers English Law‘s compatibility with the Convention in view of the child‘s relationship with the natural parents both pre- and post-adoption.

Throughout the discussion, reference is made to the Concluding Comments issued by the UN Committee on the Rights of the Child, which is said to be recognized as the highest authority for interpretation of the Convention, in response to national reports submitted by state parties. Another invaluable tool is UNICEF's Implementation Handbook for the Convention on the Rights of the Child, which aims to synthesise the Committee's views and provide a detailed reference for the implementation of law, policy and practice to promote and protect the rights of children‘.

22 September 2011


Reading Australian Competition & Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086 ... the Australian 'adwords case'.

Nicholas J in the Federal Court declared that -
1. By publishing or causing to be published advertisements on or about 28 August and 30 August 2005 in response to searches undertaken using the search engine at the website at www.google.com.au for the keyword “Kloster Ford” in circumstances where:
(a) each advertisement included a headline consisting of the words “Kloster Ford”;

(b) each advertisement included a link to the website at www.tradingpost.com.au;

(c) no information regarding Kloster Ford could be found at the website at www.tradingpost.com.au; and

(d) no information regarding Kloster Ford car sales could be found at the website at www.tradingpost.com.au
the first respondent [the Trading Post, a Telstra subsidiary], in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 52(1) of the Trade Practices Act 1974 (the Act) by representing, contrary to the fact, that:
(i) there was an association or affiliation between the first respondent and Kloster Ford;

(ii) information regarding Kloster Ford could be found at the website at www.tradingpost.com.au; and

(iii) information regarding Kloster Ford car sales could be found at the website at www.tradingpost.com.au.
2. By publishing or causing to be published advertisements on or about 28 August and 30 August 2005 in response to searches undertaken using the search engine at the website at www.google.com.au for the keyword “Kloster Ford” in circumstances where:
(a) each advertisement included a headline consisting of the words “Kloster Ford”;

(b) each advertisement included a link to the website at www.tradingpost.com.au;

(c) no information regarding Kloster Ford could be found at the www.tradingpost.com.au website; and

(d) no information regarding Kloster Ford car sales could be found at the tradingpost.com.au website
the first respondent, in trade or commerce, in connection with the supply or possible supply of goods or services, represented that it had an affiliation which it did not have and thereby contravened s 53(d) of the Act.
In essence, the Trading Post used Google's AdWords program to generate an advertisement that featured the term 'Kloster Ford' but "did not have anything to do with Kloster Ford or vehicles Kloster Ford was offering for sale". The Court held that the Trading Post had therefore engaged in misleading or deceptive conduct.

Google’s placement of AdWords advertisements in its search results pages was not held to be misleading or deceptive conduct.

The case arose from operation by Google Inc (the second respondent) of what the Court characterised as "the well known internet search engine also known as 'Google'". Trading Post Australia Pty Limited, the first respondent, paid Google to advertise. The Australian Competition & Consumer Commission alleged that Google and Trading Post, in trade or commerce, engaged in conduct that is misleading or deceptive or likely to mislead or deceive and that each contravened s 52 of the Trade Practices Act 1974 (Cth). The ACCC alleged that Trading Post also contravened s 53(d) of that Act. The ACCC alleged that the appearance of organic search results and sponsored links (ie the ads paid for by Trading Post) is essentially the same, arguing that the features of the relevant webpages that are said to distinguish organic search results from sponsored links are insufficient to do so.

The proceeding was settled as between the ACCC and Trading Post, with agreement between all parties that no declarations should be made as between the ACCC and Trading Post until the claims made against Google were determined - reflecting the possibility that claims regarding Google were unsuccessful.

Discrimination law

The national Attorney General and Minister for Finance & Deregulation have launched a 65 page discussion paper [PDF] regarding the consolidation of Federal anti-discrimination law.

The paper covers the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) but does not cover the Marriage Act or involve the issue of same-sex marriage.

The Attorney-General comments that -
These acts are now substantially inconsistent and unnecessarily complex. This results in confusion in respect to obligations arising under the laws and can increase the cost for legal and specialist assistance. The release of the discussion paper recognises the community's strong interest in the effective operation of anti-discrimination laws.
The consultation has been promoted as providing -
an opportunity to clarify existing protections and address areas where there may be gaps including seeking community views on the recommendations of the Senate Standing Committee on Legal & Constitutional Affairs 2008 report into the effectiveness of the Sex Discrimination Act 1984 and also that Committee's Report into the Disability Discrimination & other Human Rights Legislation Amendment Bill 2009. The project also provides the opportunity to ensure consistency with other legislation including the Fair Work Act.
Submissions can be made until 1 February 2012. The consultations will inform development of exposure draft legislation, to be released for public consultation in early 2012.

The paper states that -
Consolidation of federal anti-discrimination laws provides an opportunity to consider the existing framework, and explore opportunities to improve the effectiveness of the legislation to address discrimination and provide equality of opportunity to participate and contribute to the social, economic and cultural life of our community.

Clearer and more consistent anti-discrimination legislation will make it easier for both individuals and business to understand rights and obligations under the legislation.

Commonwealth anti discrimination law is currently found in four separate pieces of legislation, each of which deals with different grounds of discrimination:
Racial Discrimination Act 1975 (RDA)
Sex Discrimination Act 1984 (SDA)
Disability Discrimination Act 1992 (DDA), and
Age Discrimination Act 2004 (ADA).
A fifth Act, the Australian Human Rights Commission Act 1986 (AHRC Act), establishes the Australian Human Rights Commission and regulates the processes for making and resolving complaints under the other four Acts. There are also provisions relating to discrimination in employment in the Fair Work Act 2009.

Many of the provisions in the legislation set out above implement Australia’s obligations under the seven core human rights treaties to which Australia is a party:
International Convention on Civil & Political Rights (ICCPR)
International Convention on Economic, Social & Cultural Rights (ICESCR)
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child (CROC)
Convention on the Rights of Persons with Disabilities (CRPD), and
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
For example, the RDA is directed to implementing obligations under CERD. Australia’s international law obligations provide support for the constitutional basis for the consolidation bill. Together with the external affairs power, other heads of power are also available.

Current Commonwealth anti discrimination laws have been drafted over a period of nearly 40 years and consequently there are significant differences in the drafting and coverage of protections under each Act. These differences range from definitional inconsistencies to more significant issues such as different approaches to the tests for discrimination and to provisions relating to vicarious liability. Many of these differences are unnecessary and add to the complexity and regulatory burden of the legislation. We also have the benefit of 40 years experience with anti-discrimination legislation to consider if there are more appropriate mechanisms to describe and address discrimination in areas of public life.

The Government has decided, as part of Australia’s Human Rights Framework and as a Better Regulation Ministerial Partnership between the Attorney-General and the Minister for Finance and Deregulation, to consolidate existing Commonwealth anti-discrimination legislation into a single, comprehensive law. As part of this project, the Government is also delivering on its commitment to introduce new prohibitions on discrimination on the basis of sexual orientation and gender identity. In addition, the Government has also committed to consider, as part of this project, a number of the recommendations made by the Senate Legal & Constitutional Affairs Committee in its inquiry into the effectiveness of the SDA.

The Government has made it clear that this exercise will not lead to a reduction in existing protections in federal anti-discrimination legislation. In considering options for reform, the Government will keep the following principles in mind:
• a reduction in complexity and inconsistency in regulation to make it easier for individuals and business to understand rights and obligations under the legislation
• no reduction in existing protections in federal anti-discrimination legislation
• ensuring simple, cost-effective mechanisms for resolving complaints of discrimination, and
• clarifying and enhancing protections where appropriate.
Importantly, this discussion paper also considers the mechanisms in place to assist business in understanding and carrying out their obligations. There has been some criticism that business does not have adequate support in meeting their obligations under Commonwealth anti-discrimination laws. To address this, business may require guidance and assistance to establish policies and procedures that address discrimination issues. The discussion paper discusses possible reforms to establish or strengthen the mechanisms to assist business to meet their obligations.

The Government considers that enhanced protection of human rights and better outcomes for businesses should not be conflicting objectives in considering the development of a consolidated set of anti-discrimination laws.

The potential benefits of adopting or extending mechanisms to assist compliance with laws should be balanced with the implementation and ongoing costs of administering each mechanism for business and Government.

This discussion paper does not address the issue of same-sex marriage as the consolidation project will not alter the government’s position on this issue.

The discussion paper raises a number of questions around the existing framework, including a number of technical issues around the operation of the legislation. The following issues have been identified:
Meaning of discrimination – a consideration of current tests to establish direct and indirect discrimination, whether direct and indirect discrimination should continue to be separate concepts and how special measures should interact with the definition(s). This section also considers issues relating to the burden of proof for the various elements of the test of discrimination, the duty to make reasonable adjustments and other positive duties and the best way to prohibit harassment based on a person’s protected attribute/s.

Protected attributes – a consideration of the Government’s election commitment to include protections against discrimination on the grounds of sexual orientation and gender identity, whether other grounds of discrimination should be covered and whether protection should extend to discrimination on the basis of association with a person who has a protected attribute. This section also considers the issue of intersectional discrimination to determine whether our laws should better address situations where a person is discriminated against on the basis of more than one ground.

Protected areas of public life – anti-discrimination laws cover a range of areas of public life, including discrimination in employment, education, the provision of goods and services or requests for information. This section considers if there could be improvements made to how these areas of public life are covered, particularly for partnerships, sport and clubs, as well as examining protection for voluntary workers and domestic workers. This section also provides a discussion on vicarious liability of employers and statutory office holders.

Exceptions and Exemptions – anti-discrimination laws provide a framework to establish complaints of unlawful discrimination. However, not all discrimination is unlawful and there may be circumstances where it is appropriate to discriminate between people on the basis of attributes which would otherwise be protected. This section looks at key issues relating to exceptions and exemptions, including the use of a general limitations clause, inherent requirements and genuine occupational qualifications, religious exemptions and temporary exemptions.

Complaints and compliance framework – the current discrimination complaints process and considers issues such as improved alternative dispute resolution processes, representative actions for discrimination complaints and the availability of appropriate remedies for unlawful discrimination. It also examines other options to assist business and other people to not discriminate, including the use of co-regulatory approaches. Finally, it considers some issues that have been raised relating to the role and functions of the Australian Human Rights Commission.

Interaction with other laws and application to State governments – the interaction between the anti-discrimination laws and other Commonwealth, State and Territory laws, including how the laws should apply to State and Territory Governments and their agencies.
The paper asks the following questions -
1. What is the best way to define discrimination? Would a unified test for discrimination (incorporating both direct and indirect discrimination) be clearer and preferable? If not, can the clarity and consistency of the separate tests for direct and indirect discrimination be improved?

2. How should the burden of proving discrimination be allocated?

3. Should the consolidation bill include a single special measures provision covering all protected attributes? If so, what should be taken into account in defining that provision?

4. Should the duty to make reasonable adjustments in the DDA be clarified and, if so, how? Should it apply to other attributes?

5. Should public sector organisations have a positive duty to eliminate discrimination and harassment?

6. Should the prohibition against harassment cover all protected attributes? If so how would this most clearly be expressed?

7. How should sexual orientation and gender identity be defined?

8. How should discrimination against a person based on the attribute of an associate be protected?

9. Are the current protections against discrimination on the basis of these attributes appropriate?

10. Should the consolidation bill protect against intersectional discrimination? If so, how should this be covered?

11. Should the right to equality before the law be extended to sex and/or other attributes?

12. What is the most appropriate way to articulate the areas of public life to which anti-discrimination law applies?

13. How should the consolidation bill protect voluntary workers from discrimination and harassment?

14. Should the consolidation bill protect domestic workers from discrimination? If so, how?

15. What is the best approach to coverage of clubs and member-based associations?

16. Should the consolidation bill apply to all partnerships regardless of size? If not, what would be an appropriate minimum size requirement?

17. Should discrimination in sport be separately covered? If so, what is the best way to do so?

18. How should the consolidation bill prohibit discriminatory requests for information?

19. Can the vicarious liability provisions be clarified in the consolidation bill?

20. Should the consolidation bill adopt a general limitations clause? Are there specific exceptions that would need to be retained?

21. How should a single inherent requirements / genuine occupational qualifications exception from discrimination in employment operate in the consolidation bill?

22. How might religious exemptions apply in relation to discrimination on the grounds of sexual orientation or gender identity?

23. Should temporary exemptions continue to be available? If so, what matters should the Commission take into account when considering whether to grant a temporary exemption?

24. Are there other mechanisms that would provide greater certainty and guidance to duty holders to assist them to comply with their obligations under Commonwealth anti discrimination law?

25. Are any changes needed to the conciliation process to make it more effective in resolving disputes?

26. Are any improvements needed to the court process for anti-discrimination complaints?

27. Is it necessary to change the role and functions of the Commission to provide a more effective compliance regime? What, if any, improvements should be made?

28. Should the consolidation bill make any improvements to the existing mechanisms in Commonwealth anti discrimination laws for managing the interactions with the Fair Work Act?

29. Should the consolidation bill make any amendments to the provisions governing interactions with other Commonwealth, State and Territory laws?

30. Should the consolidation bill apply to State and Territory Governments and instrumentalities?

Do as I say?

The BBC reports that Julian Assange has accused UK publisher Canongate of a breach of contract for releasing "drafts" of his autobiography without his approval.

Canongate - a respected minor publisher - states that -
Canongate Books confirmed today, 21 September 2011, that it will publish Julian Assange: The Unauthorised Autobiography tomorrow. The publisher issued the following statement: On 20 December 2010, Julian Assange signed a contract with Canongate Books to write a book – part memoir, part manifesto – for publication in 2011.

At the time, Julian said,
I hope this book will become one of the unifying documents of our generation. In this highly personal work, I explain our global struggle to force a new relationship between the people and their governments.
Despite sitting for more than fifty hours of taped interviews and spending many late nights at Ellingham Hall in Norfolk (where he was living under house arrest) discussing his life and the work of WikiLeaks with the writer he had enlisted to help him, Julian became increasingly troubled by the thought of publishing an autobiography. After reading the first draft of the book that was delivered at the end of March, Julian declared, ‘All memoir is prostitution’.

On 7 June 2011, with 38 publishing houses around the world committed to releasing the book, Julian told us he wanted to cancel his contract. However, he had already signed his advance over to his lawyers to settle his legal bills.

We have decided to honour that contract and to publish. Once the advance has been earned out, we will continue to honour the contract and pay Julian royalties.

We disagree with Julian’s assessment of the book. We believe it explains both the man and his work, underlining his commitment to the truth. Julian always claimed the book was well written; we agree, and this has encouraged us to make the book available to readers.

We will publish the unauthorised first draft which was delivered to us in March. It fulfils the promise of the original book proposal and is, like its author, passionate, provocative and opinionated. We are proud to publish it.
Assdange is reported as commenting that the memoir is an unchecked work in progress and the publisher was profiteering from an erroneous draft. His advance is understood by the BBC to be "a substantial six-figure sum".

Assange is also reported as commenting that -
The events surrounding its unauthorised publication by Canongate are not about freedom of information.

They are about old-fashioned opportunism and duplicity - screwing people over to make a buck
with Canongate breaching the contract and personal assurances that the draft would not be released without his permission.

Posts in this blog have been critical of Assange's indifference to privacy, confidentiality, copyright and potential dangers to informants. Digital anarchists are in an ironic position when they invoke the law that elsewhere they have sought to destroy; everyone, Assange or otherwise, should be treated with respect and should not place themselves above the law.

Assange's subsequent media statement indicates that -
I am not “the writer” of this book. I own the copyright of the manuscript, which was written by Andrew O'Hagan. By publishing this draft against my wishes Canongate has acted in breach of contract, in breach of confidence, in breach of my creative rights and in breach of personal assurances. The US publisher, Knopf, withdrew from the deal when it learned of Canongate’s intentions to publish without my consent. This book was meant to be about my life’s struggle for justice through access to knowledge. It has turned into something else. The events surrounding its unauthorised publication by Canongate are not about freedom of information -- they are about old-fashioned opportunism and duplicity--screwing people over to make a buck. ...

I was informed that I could object to Canongate's actions on the basis that the proposal amounts to an infringement of copyright, a breach of the agreement, plus a breach of my right not to have my work subjected to derogatory treatment.

On 16 September 2011, I wrote a letter to my publisher informing them of my intention to obtain a temporary injunction unless they agreed to make immediately available to Q.C. Geoffrey Robertson a copy of the proposed book. In keeping with my rights under the contract, I requested five days for legal review of the manuscript by my own barrister, so that he could suggest any deletions reasonably required to protect our people from any adverse legal consequences that may arise from this publication. Jamie Byng attempted to extort legal immunity for his actions by refusing to giving me even a single chapter of the book unless I signed away my right to take legal action against Canongate. In his reply to my agent (16 September 2011), he wrote: "And we do need written assurances from Julian that he will not be taking legal action against the book before we can give our lawyers the green light to send over this chapter".

Canongate has stated that I have not acted on obtaining an injunction in the twelve-day window between the date of the letter informing me of the publication and the date that the book would go to press. This alleged twelve day window was in fact a five-day window, as I was only given the letter on Friday 9 September at 16:00. From the moment I was informed of Canongate's actions, I spoke to numerous solicitors. These solicitors were unwilling to take my case because I as the claimant must give a cross undertaking for damages when applying for an injunction. This means that I would be required to demonstrate that I was in the financial position to undertake to pay damages to Canongate in the event that the injunction should not have been granted. I am not in a position to provide such an undertaking. Canongate is aware of this. In a letter dated 14 September 2011, Canongate's lawyers write: "Please also note that if the Book is not published our client will incur very significant additional damage. As you will be aware the court will take this into account when considering any application for an injunction to satisfy itself that the cross-undertaking as to damages that Mr. Assange will need to provide is good in this respect. Furthermore, we understand that Mr. Assange is an Australian citizen and not resident in this country. If that is right he will need to provide security for costs."

Canongate is profiteering from an unfinished and erroneous draft, preventing me from exercising my rights as the copyright holder, denying me and many others of market opportunity for the book I wished to publish, and depriving me of the earnings I would eventually have made with the second and third instalments of the advance. It is acting on a contract that both parties agreed to terminate, but is, in any event, in breach even of that contract. My agent was negotiating a new timetable and we had agreed to draw up a fresh contract for the book I wanted to publish in my name. The last conversation with Jamie Byng on 16 June was friendly, positive and forward-looking. Since then, as Canongate secretly prepared the manuscript for publication, it has found excuses not to interact with me, presumably in order to avoid discovery. Canongate has refused contrary to contract to provide me with a copy of the edit that has gone to print for my lawyers to assess. Canongate has carried out this action with the knowledge that my financial situation prevents me from undertaking legal action against them. Canongate’s actions undermine the economic benefit I and WikiLeaks could have derived from the book deal at a time when my legal costs are mounting due to politically motivated legal attacks and a financial blockade jeopardises WikiLeaks' continued operations.

My ability to comment on the content of the book is limited. I am aware that there have been edits to the draft of 31 March 2011, but I do not know what they are. Andrew O’Hagan has not been shown the final edit. Tomorrow, I will have to buy ‘my autobiography’ in order to learn the extent of the errors and inaccuracies of the content of the book, but the damage is done.

Gene Patents

The Senate Legal & Constitutional Affairs Committee report on the Patent Amendment (Human Genes & Biological Materials) Bill 2010 (Cth) has sensibly recommended that the Senate should not pass the Bill.

The report states that -
The committee notes that the Bill has been introduced in the context of a number of other reviews and other ongoing processes. IP Australia has recently finalised over two years of consultation in relation to the reforms which have been introduced as part of the Raising the Bar Bill. Legal cases related to the patentability of human genes are also currently being undertaken, both in Australia and overseas. Australian Government responses are also anticipated in relation to:
• the report of the ALRC inquiry on gene patenting and human health;
• the report of the Senate Community Affairs Committee inquiry on gene patents; and
• the report of the ACIP inquiry on patentable subject matter.
These events will be relevant to the broader issues identified in the [Explanatory Memorandum] as being affected by the Bill.

In the view of the committee, the key issues to be addressed regarding the provisions of the Bill and the issue of the patenting of human genes and biological materials are:
• the distinction between discoveries and inventions;
• the scope of the Bill's exclusion for biological materials;
• access to treatments, diagnostics and methods for healthcare;
• the freedom to conduct research;
• investment in research and development;
• access to new products and knowledge;
• ethical issues with respect to the patenting of human genes and biological materials;
• the crown use and compulsory licensing provisions of the Patents Act; and
• international considerations.
The report goes on to comment that
The Bill before the committee attempts to make amendments to the Patents Act in order to clarify the distinction between invention and discovery in the patents system. However, it is evident from the inquiry that there is not wide agreement that the amendments proposed facilitate this clarification. In the view of the committee, the amendments proposed in the Bill will, at best, not assist to clarify the distinction between discovery and invention in the patent system and, at worst, make the distinction more obscure.

The inquiry touched on several of the difficult policy questions regarding the appropriate distinction between discovery and invention in relation to patents over human genes and biological materials. However, these difficult policy questions are not limited to these particular subject matters. Other controversial areas include the grants of patents over computer software and business methods. Further, there are likely to be new fields of technology in the future where the issue of the appropriate distinction between discovery and invention will need to be carefully considered. This indicates to the committee that a technology neutral approach to this issue is preferable to an approach which will focus on one category of inventions only.
The report notes that ACIP concluded after an extensive inquiry into patentable subject matter that -
The current test for patentable subject matter as applied by the courts in Australia is the best one available to us. It has the flexibility to cope with a variety of concepts and to adapt to new technologies.

ACIP has proposed codifying the 'principles of inherent patentability (as developed by the High Court in the NRDC case and in subsequent Australian court decisions)'. In the view of the committee, this is an approach that is likely to add clarity to the Patents Act. In contrast, the amendments proposed in the Bill to alter the 'manner of manufacture' test in s 18 of the Patents Act are not likely to generate certainty within the patent system.

The proposed amendments contained in the Raising the Bar Bill also illustrate that other technology neutral changes to requirements in the Patents Act are viable. These amendments would tighten the requirements for the grant of patents in all fields of technology through proposals to raise the standards for inventive step, usefulness and disclosure of inventions. In the view of the committee, these proposals should contribute to improving the quality of inventions which are granted patents.

While previous inquiries and public discussions have focused on the patenting of human genes, the Bill goes further and proposes a specific exclusion for biological materials which are identical or substantially identical to such materials 'as they exist in nature'. The evidence received during the inquiry indicates that this exclusion is likely to have significant implications for a broad range of sectors and industries in Australia, including healthcare, pharmaceuticals, agriculture, food manufacturing and biotechnology. Extensive inquiries by the ALRC, the Senate Community Affairs Committee and ACIP have not revealed any persuasive evidence that would justify this type of broad exclusion from patentability for all biological materials.

The broad scope of the Bill, and the imprecise language of its provisions, was perceived by many as being potentially detrimental to Australia's patent system, the research sector and the many industries reliant on a stable patent system. The committee agrees that this ambiguity in the language of the Bill could discourage investment in research and development, and encourage litigation by those seeking to clarify patent rights.

The use of the term 'substantially identical' highlights many of these issues, particularly in view of the examples provided of current patented products, and those in development, which included inventive elements designed to mimic biological materials 'as they exist in nature'. The uncertain scope of the exclusion proposed for biological materials creates a risk that worthy inventions, which meet all the other requirements of patentability, will be unable to claim patent protection. Some amendments to the Bill were suggested during the inquiry to clarify the scope of the biological materials exclusion. However, in the view of the committee, these suggestions do not resolve the key deficiency of the Bill in seeking to carve out a broad category of subject matter from patentability.
In relation to healthcare the report suggests that -
The context for the debate over patents granted in relation to human genes and biological materials is the increasing scientific understanding of these materials and their increasing application to healthcare. As Dr Graeme Suthers from the Royal College of Pathologists noted, the relationship between genetic tests and clinical care 'is in a state of rapid flux at the moment'.

Like the Senate Community Affairs Committee, the committee received commentary which was concerning in relation to the potential impacts of the patents system on equitable access to healthcare. However, there was no evidence received by the committee that patents on human genes or biological materials are systematically leading to adverse impacts in the provision of healthcare in Australia. Further, as a number of submissions and witnesses highlighted, the enactment of the Bill would not resolve the issue which focused public attention on the patenting of human genes in Australia in the first place: the claims of Genetic Technologies over BRCA1 and BRCA2 genetic testing.

The evidence the committee received suggests that the key measure proposed by the Bill, the exclusion from patentability of biological materials which exist in nature, would also have significant adverse consequences for healthcare in Australia. This could potentially include:
• long delays for Australian patients to access new diagnostic tests, medicines and treatments;
• reduced access for Australian patients to clinical trials; and
• a reduction in investment for medical research and development in Australia.
In discussing research impediments the Committee commented that -
It is clear that legal uncertainty in relation to patents can cause anxiety for researchers and delays for research. In the BRCA example, legal claims by Genetic Technologies caused the research of the Peter MacCallum Cancer Centre to be delayed for a significant period. Currently, there is no provision in the Patents Act which clarifies the rights of researchers to freely conduct experiments. To ensure certainty exists for researchers, there was considerable support expressed during the inquiry for an explicit research exemption in the Patents Act. The amendments proposed in the Raising the Bar Bill clarify that research and experimental activities relating to patented inventions are exempt from infringement. In the view of the committee, a clear research exemption is the preferable approach to provide certainty for researchers. The Bill's proposed exclusion for biological materials would not provide this certainty for researchers.

The evidence the committee received indicates that patents over human genes and biological materials have not hindered research, particularly medical research, in Australia. In contrast, there was clear evidence from submitters and witnesses that these patents have encouraged and contributed to research and development activities. Patents allow researchers to attract investment to pursue the development of new inventions and allow companies to mitigate the risks associated with developing costly new products, such as medicines.

The committee agrees that the significant amendments proposed in the Bill risk creating uncertainty regarding the stability of Australia's patent system. A broad range of research organisations and companies highlighted their concerns that the ambiguous nature of the Bill's provisions could negatively affect investment in research and development in Australia. Uncertainty regarding the capacity to secure patent protection for new inventions, caused by the enactment of the Bill, is likely to discourage investment in research and development and potentially drive investment funding and research activities overseas.

In the view of the committee there is a clear risk that, without certainty in relation patent protection for biological materials, companies will have less incentive to develop and commercialise new products for the Australian market. This could negatively impact these companies, and their employees and shareholders, but also Australian industries and consumers who would lose access to these new products. Additionally, there is a risk that without clear patent protection for inventions related to biological materials, there will be less incentive for researchers to publicly disclose recently developed knowledge and inventions in this area. Other researchers would then be unable to utilise and build on this new knowledge in their own endeavours.

In addition to social, economic and policy considerations, there are clearly ethical dimensions to the issue of patenting human genes and biological materials. Particularly in the case of patents over human gene sequences, many in the community feel uncomfortable that the patent system may allow applicants to claim a degree of ownership over material which already exists, in another form, in nature.

The recent ACIP report on patentable subject matter (ACIP Report) included significant discussion in relation to these ethical concerns. It noted that it was important that the social contract of the patent system should able to take into account both economic and ethical matters when regulating the subject matter eligible to be patented. The report proposed maintaining the current specific exclusions, including for 'human beings, and the biological processes for their generation' as well as amending the Patents Act to insert a general ethical exclusion. This general exclusion would exclude from patentability inventions 'the commercial exploitation of which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public'.

The ACIP Report recognised the benefit in having a flexible approach to this issue through creating an arrangement which considers Australian values as they exist at the relevant time. In the view of the committee, the ACIP proposal for a general ethical exclusion has merit and is a preferable approach to prevent the grant of patents which would be perceived as unethical by the community.

In the view of the committee, the enactment of the Bill could breach Australia's international obligations under the TRIPS Agreement and the AUSFTA to allow for the patenting of inventions in 'all fields of technology' without discrimination. While there is explicit scope in these international agreements for other relevant exceptions, such as to protect ordre public or morality and for human healthcare, the provisions of the Bill are not framed in these terms.

Examples of restrictions on the patenting of biological materials in some developing countries were raised during the inquiry. However, in the view of the committee, the factors driving these sorts of exclusions in developing countries do not necessarily translate to an advanced research jurisdiction such as Australia. The international legal position may, or may not, be in the process of evolution, but it is too early to be certain how these issues will be resolved. The committee's view is that, until a clear approach exists in comparable jurisdictions, significant advantages remain for Australia in maintaining the harmonisation of its intellectual property regime with international standards and those of its major trading partners.
It also comments that
The committee does not agree with the characterisation, made during the inquiry, that the Crown Use and compulsory licensing provisions in the Patents Act are not effective because they are rarely, if ever, utilised. The existence of legislative mechanisms can effectively influence patent-holder behaviour. For example, it can be argued that these provisions were an important contributing factor in the decision of Genetic Technologies to abandon its legal claims in relation to BRCA1 and BRCA2 genetic testing. However, the committee was also concerned to hear that there may be some complexity with the operation of the crown use provisions, depending on whether they were exercised in the right of the Commonwealth or in the right of the states. This subject may be an appropriate topic of future inquiry by ACIP.

During the inquiry, the Bill was described as 'well-intentioned' and the committee agrees with this characterisation. However, the committee does not agree that the Bill represents an effective solution to the problems which may be caused by patents over human genes and biological materials. In particular, the committee is concerned that proposed amendments in the Bill, which are focused on addressing a specific issue, could have a large number of unintended consequences across the entire patent system with indeterminate impacts on a range of industries and sectors.

Like many of those who gave evidence, the committee prefers the solutions offered in the proposed amendments of the Raising the Bar Bill. However, the committee does not consider that the amendments in the Raising the Bar Bill will resolve all of the issues in the patent system. In the opinion of the committee, serious consideration should also be given to the proposals for legislative enactment of the patentable subject matter test and the general 'ethical' exclusion made in the ACIP report on patentable subject matter. Other reforms may also be necessary in the future, particularly in relation to ensuring equitable access to healthcare. In this context, the committee recognises that the Senate Community Affairs References Committee has indicated it will maintain a 'watching brief' in relation to the impact of gene patents in Australia. Despite the need for further reform to the patent system, the committee agrees that removing an area of patentable subject matter, as proposed by the Bill, is not an appropriate solution to this complex set of issues.

21 September 2011


Michael Froomkin's 42 page 'Lessons Learned Too Well ' considers the regulation of internet anonymity. He comments that -
This paper, prepared for a presentation Sept. 22, 2011 at the Oxford Internet Institute’s Conference, A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, examines, contextualizes, and critiques an international trend towards the regulation of anonymity.

The paper describes private incentives and initiatives during the past decade that resulted in the deployment of a variety of technologies and services each of which is unfriendly to anonymous communication. It then looks at three types of government regulation, relevant to anonymity: the general phenomenon of chokepoint regulation, and the more specific phenomena of online identification requirements and data retention (which can be understood as a special form of identification).

The concluding section takes a pessimistic view of the likelihood that given the rapid pace of technical and regulatory changes the fate of online anonymity in the next decade will be determined by law rather than by the deployment of new technologies or, most likely, pragmatic political choices. It therefore offers normative and pragmatic arguments why anonymity is worth preserving and concludes with questions that proponents of further limits on anonymous online speech should be expected to answer.

The consequences of an anonymity ban are likely to be negative. This paper attempts to explain how we came to this pass, and what should be done to avoid making the problem worse.
Froomkin concludes that -
There are those who say that in order to be safe we will have to create an infrastructure of mandatory identification. Some, including many of those charged with making decisions for the public’s safety, clearly say it in the best of faith. Other argue, sometimes despite the evidence, that we in the US must do so to protect the profits of an industry important to our trade balance. It is all very well for academics, often living in genteel surroundings, to ask that we not give in to fear, and to reply that before we create a regime that may be persistent and eventually ineradicable we should first ensure that there are no less restrictive means, and that we should consider all the externalities. But that is our job.

Here, then, are a few suggestions for avoiding what could otherwise be an outcome we likely will regret, also based on lessons learned from the past twenty years or so. Several of these concepts are already present in European data protection law, but none of them are legal requirements in the US today.
• Demand evidence of the need for mandatory identification and data retention rules, and insist the rules be proportional to the need.
• Avoid rules that lock technology into law.
• Always consider what an identification rule proposed for one purpose can do in the hands of despots.
• Empower user self-regulation whenever possible rather than chokepoint regulation.
• Design filters and annotators before designing walls and takedown mechanisms.
• Require transparency. Make it an offense for devices to make records without clear, knowing, and meaningful consent on the part of the speaker, reader, listener, or viewer.
• Build alternatives in technology and law that allow people to control how much their counterparts know about them, and which by making selective release of information easier reduce the need for a binary choice between anonymity or data nudity.
• Require that privacy-enhancement be built in at the design level.
Those who disagree with these suggestions worry, with some reason, about new technology undermining the powers of states and sovereigns. Why is allowing people to speak freely to each other, without fear of eavesdroppers or retaliation, such a terrible thing? After all, most core government powers, like the power to tax, will not in fact be undermined in any substantial way by unfettered communication so long as we still need to eat and we want physical things such as houses. The issues are the same ‘four horsemen’ they have been for many years: fear of terrorism, money-laundering, child pornographers and drug-dealers, to which one might add in some countries, revolutionaries.

The flip side of these fears is the recognition that even if the power to speak freely and privately is sometimes misused, it is also empowering. Communicative freedom allows people to share ideas, to form groups, and to engage not just in self-realization, but in small scale and even mass political organization. Here then is the most important lesson to be learned, but one that needs to be learned over and over again:
Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views ... Anonymity is a shield from the tyranny of the majority.
The Internet and related communications technologies have shown a great potential to empower end-users, but also to empower firms and especially governments at their expense. Governments (and firms) around the world have learned this lesson all too well, and are taking careful, thorough, and often coordinated steps to ensure that they will be among the winners when the bits settle.

The thing to watch out for, therefore, is whether we, and especially those individuals already burdened with repressive regimes, will be among the winners also.

Bananas and dried shark

From the ADB biography of Ian Ramsay Maxwell (1901–1979), professor of English at Melbourne University -
Maxwell's bravura performance of Robert Burns's 'Tam o'Shanter' was famous, as was the occasional shedding of an emphatic tear. Only late in the piece did he realize that one could lecture on a poem without knowing it by heart. At informal gatherings he would sing affectingly.

Maxwell held his chair at Melbourne until the end of February 1968, surviving sturdily into the new Leavisite era of literary moralism. He published little, being chiefly famous for his spellbinding lectures and for his latterly acquired enthusiasm for Old Icelandic language and literature. His study in the Old Arts building was legendary for its aged furniture, bookbinding equipment, overproof rum and 'deliquescent bananas', though few colleagues could be persuaded to sample the slab of dried shark which he brought back from one trip to Iceland. In 1966 he was appointed (chevalier) to the Icelandic Order of the Falcon. He derived joy from his remote bush camp at Howqua, whence came the story of his climbing a tree with a knife between his teeth, seeking to cut the throats of cormorants. His enthusiasm for axemanship was pronounced, and in one letter he wrote: 'some swine stole my axe, and I had a mild headache for a day and a half as I thought out what I should like to do to him'.

After his retirement, Maxwell was widely said to spend six and a half days at the university instead of seven. His clubbable, informal reading groups in the Norse sagas continued unabated, and there was a private edition of his useful pamphlet on rhythm and metre, Scansion Scanned (Melbourne, 1967).

18 September 2011


Tonight I'm avoiding hubbub about the Queenslander who's charmingly reported as indicating that he's a "resurrected" Son of God (one associate is a "resurrected" Mary Magdalene; alas no sign so far of a resurrected Pontius Pilate or Emperor Tiberius, whom we could quiz about the historicity of accounts by Tacitus and Dio Cassius) and reading 'Holistic healing as fresh evidence for collective consciousness' by Maria Sági in - but of course - 48(1) World Futures (1997).

That journal is of interest for its ERA ranking (so much for academic quality control?) and its history of articles expounding the 'truth' of remote healing, reincarnation, dowsing and other expressions of parapsychology. ERA is critiqued in Simon Cooper & Anna Poletti, 'The new ERA of journal ranking: The consequences of Australia's fraught encounter with 'quality'', 53(1) Australian Universities Review (2011) 57.

A generous response to the article would be that there is evidence and that there is, um, what sceptics dub 'evidence'. Facts in science and faith are contested. Sági states that -
Holistic healing in its several thousand years old history presupposes the existence of a transpersonal informational field accessible to all human beings as well as to all organisms.

The self-maintaining and self-healing properties of the organism rely on information from this field. Self-healing occurs by a matching of the morpho-dynamic pattern of the individual with the species-specific pattern accessed though the field. Natural healers perceive a mismatch between the morpho-dynamic pattern of a patient and the species-specific pattern in the field and use a number of different methods (homeopathy, new homeopathy, healing methods ranging from classical radioesthetic methods to sophisticated devices such as the Radionic devices) for correcting the mismatch.

This contrasts with the bio-chemical comparative causal method of classical Western medicine. A more detailed analysis of holistic healing in all its variants can lead to a closer identification of the working of the collective informational field that connects all members of the human species.
The collective information field is, of course, that promoted by Ervin Laszlo, the World Futures editor and enthusiast for notions that we can communicate with the dead (who in his view are not actually dead, just not in a conveniently material form) via valve radios or that the brains of the elite are becoming quantum wave transceivers (presumably quite useful now that corner shops don't stock thermionic valves for that must-do chat with the undead).

Oh, if it was only so simple ... and if magic touch, remote healing or other flavours of mystic medicine could make amputated limbs reappear!

Sági appears to like simplicity, encapsulating her claims with the statement that -
In the language of today's sciences, it is the uninterruptedly regenerating energy of the transpersonal information field that safeguards or restores the health of the human being.
Let's not quibble with complaints that no one, other than the true believers, has found hard evidence of the information field or its disruption. (Does wearing an alfoil beanie stop the field from "safeguarding" health and thereby induce illness? Regrettably I can't say, as alfoil isn't my favourite headware.)

Ditto that few scientists would use the "language" of the "uninterruptedly regenerating energy of the transpersonal information field".

Sági goes on to explain that -
In the case of distance healing the morpho-dynamic pattern of the patient is effected. The healer sends into the field a vibration that is "understood" by the pathogenic zones of the morpho-dynamic pattern. These are able to absorb it and thereby capable of autonomously matching themselves to the species-specific pattern. This is what happens when we obtain the healer's help to start the self-healing process.

In the case of normal, direct healing, the healer works through the organism of the patient. He, too, targets the morpho-dynamic pattern, but does it through the organism to which he imparts information in the form of geometrical signs and/or homeopathic remedies. These are perceived by the organism in the subtle-energetic realm and are automatically transferred to the morpho-dynamic pattern. Once the information has been received, the morpho-dynamic pattern is capable of the constant matching to the species-specific pattern autonomously. This corresponds to full recovery.
But wait, there's more. Sági - a member of Laszlo's Club of Budapest and one-time editor of World Futures - explains that the "psi-field "involves "the quantum vacuum" forming "a transpersonal information field" that links all people across space and time.
How is the holistic healer helped by psi-field perception in his diagnosis? The clairvoyant healer can establish distance diagnosis without difficulty. He fine-tunes his consciousness to his patient, and his perception matches the morpho-dynamic pattern of the patient to the species-specific pattern of the field.

The pathological regions of the pattern transmit different frequencies. Like little lamps lighting up, they call attention to themselves with their vibration. All a clear-sighted healer has to do is to read the signs of the morpho-dynamic pattern and he or she will know what the trouble is, and even the way to enable the organism to start its self-healing processes.

The non-clairvoyant healer uses auxiliary means for this purpose. Aware of his or her own endowments, he or she will choose the means accordingly. He may use his hand, or various radio-esthetic instruments — a pendulum, a dowsing rod — or even sophisticated instruments like Radionic devices. While examining the patient he fine-tunes his consciousness to successive minor areas, since he does not have the full picture. Yet, with long practice he may come to the same diagnosis as the clairvoyant healer: he will match the morpho-dynamic pattern of the patient to the species-specific pattern in the field. But not his psi-field perception, but the moving of a dowsing rod (or other instrument) will show him the pathological deviations.
Oops, if you're going to channel Madame Blavatsky or Edgar Cayce or Cleopatra or Marie Antoinette in discovering someone's tumour or broken bones it's best to have your dowsing implement or the "radionic device". If you practice substantive medicine, however, you might want to rely on aspirin, antibiotics, MRI scans and even surgery.

It remains a shame that the academy continues to reward mumbo jumbo and that otherwise reputable publishers endorse what in my opinion is egregious nonsense. Publication by law or other academics in World Futures scores ERA points, a prerequisite for academic advancement or merely continued employment . There is arguably something a little awry with the system. One inference might be that a journal for scientologists and by scientologists - articles about the historicity of Xenu, the physics of the e-meter and other mystical beliefs - would get the same ERA rating enjoyed by World Futures. All you need, apparently, is a friendly mainstream publisher, peer review (by a coterie of astrologers or otherwise), citation in other journals (typically by and for coterie members), and away you go. Let's hope that I'm wrong.