08 February 2014


'Officers as Mirrors: Policing, Procedural Justice and the (Re)Production of Social Identity' (Oxford Legal Studies Research Paper No. 86/2013) by Ben Bradford, Kristina Murphy and Jonathan Jackson comments that
People’s encounters with the criminal justice system can powerfully shape both their sense of self and their sense of belonging. In this paper we focus on the effect experiences of policing may have on people’s identities. A representative panel survey of Australians provides the most convincing evidence yet that social identity (here, identifying oneself as a ‘law-abiding Australian’) is an important mechanism linking procedural justice to police legitimacy. When people feel fairly treated, their sense of identification with the group the police represent seems to be enhanced, strengthening police legitimacy as a result; but unfair treatment, which indicates to people that they do not belong, may undermine such identification and damage police legitimacy.
'Autonomy, Identity and Self-knowledge: A New 'Solution' to the Liberal-Communitarian 'Problem'?' (Sydney Law School Research Paper No. 14/02) by Jacqueline Mowbray argues that
The liberal-communitarian debate was a feature of the philosophy of human rights in the 80s and 90s. This paper argues that recent discussions about the benefits and dangers of protecting identity, and whether the purpose of human rights is to protect autonomy or identity, can be seen as a continuation of this debate in another form. In light of this insight, I consider whether this recent work offers new ways of exploring the liberal-communitarian issue. In particular, I argue that recent literature seeking to overcome the distinction between autonomy- and identity-based accounts of human rights, by foregrounding the concept of self-knowledge as critical to both accounts of human rights, may open up possibilities for bridging the divide between the liberal and communitarian views. Ultimately, I conclude that this approach is limited, in that it is based on understandings of self-knowledge and identity which are inherently problematic. However, building on this approach, I tentatively suggest an alternative methodology for bridging the gap between autonomy- and identity-based accounts of human rights, based on the idea that self-knowledge and self-creation are inextricably connected as part of the one process.

07 February 2014


In Hopley v The State of Western Australia [2014] WASCA 30 McLure P has commented that
 It is important that police officers and others working within the criminal justice system are not perceived as receiving preferential treatment in the application of the principle of open justice or exempt from the rationales that underpin it. 
WA Police officers Gareth Hopley and Leigh Jezewski had applied for an extension of suppression orders pending the hearing of appeals from the 12 November 2013 decision of Eaton DCJ refusing to extend suppression orders made in criminal proceedings against Hopley. Jezewski was a witness for the prosecution in those proceedings, which concerned a charge of  dangerous driving causing death. Hopley was driving a police car in the course of his duties; Jezewski  was a passenger. Both  were members of the police 'gang crime squad' at the time.

In May 2012 Hopley  appeared in the Magistrates Court, entering a plea of not guilty and gaining a suppression order to the effect that there be no disclosure or publication of his name or of other matters likely to lead members of the public to identify him until further order.In  April 2013 the Chief Judge directed that the order made by Magistrate Mignacca-Randazzo remain in force unless set aside by the District Court.Six months later Schoombee DCJ, on Jezewski's application (unsupported by affidavit) made a suppression order in the witness' favour.  West Australian Newspapers  and Channel Seven Perth  indicated prior to Hopley's trial beginning 4 November 2013 that they wished to be heard in relation to the suppression orders. Eaton DCJ, the  trial judge, varied both suppression orders to extend until 13 November 2013.

Importantly, Hopley's trial proceeded in open court.
 On the morning of 5 November 2013 the first appellant filed an application under s 171(4) of the Criminal Procedure Act 2004 (WA) (the CPA) supported by an affidavit sworn by him on 4 November 2013, for orders that: 1. Except where otherwise ordered all persons not associated with the matter be excluded from the court during the hearing of this application; 2. The name and any image of the accused be prohibited from publication outside of court; and 3. Any matter likely to lead to the accused's identification be prohibited from publication outside the court.
Also on the morning of 5 November 2013, counsel for the State handed up an application by the second appellant seeking orders in the same terms as the first appellant. However, there was no affidavit in support of that application. The trial judge adjourned both applications until 9.15 am on 6 November 2013.
On the morning of 6 November 2013 counsel for the Commissioner of Police (Mr J Bennett) handed up an application by the Commissioner seeking broader suppression orders than that sought by the first appellant. That application was supported by an affidavit sworn by the second appellant on 6 November 2013. Both applications were heard by the trial judge on that date. He reserved his decision.
After the hearing on 6 November 2013, the second appellant filed an application for suppression in substitution for the application made by the Commissioner of Police and sought narrower relief. The second appellant sought an order prohibiting the publication of any part of the evidence at trial relating to the identity and images of the second appellant and any information which would reveal his identity, rank, origin and present location within the West Australian police force and the grounds on which the court made the orders.
Eaton DCJ handed down his decisions on 12 November 2013. He was not satisfied that it was in the interests of justice to grant either application, both of which were dismissed. He proposed to order that the existing suppression orders be cancelled forthwith. Hopley and Jezewski foreshadowed an  appeal to the WA Supreme Court  and indicated that they would seek an interlocutory extension of the suppression orders pending the determination of the appeal.

McLure P notes that
the trial judge inferred that the work of the appellants on a day-to-day basis as members of the gang crime squad brought them regularly into face-to-face contact with members of motorcycle gangs. He said it was clear that the appellants knew gang members in the sense that they readily recognised those known to them and it was equally clear that they would, as officers of the gang crime squad, have been known by gang members and readily recognised by them as being police officers and members of the gang crime squad at the relevant time.
Based on the second appellant's affidavit the trial judge said it was clear that the second appellant had been recognised as a member of the gang crime squad even when socialising with other squad members. He and other squad members had left licensed premises because they were being heckled by gang members. The trial judge inferred that the gang crime squad was not a covert squad and that the relationship between the gang crime squad and gang members was a tense one. The trial judge observed that it would not be unusual for police officers to be threatened by people in the course of their duty and there was no evidence that the second appellant or police authorities had taken any steps to minimise any perceived risk to him arising from his involvement in the criminal proceedings, he having been aware for the previous 18 months that it was likely he would be required to give evidence at trial.
Not much secrecy, in other words.

McLure went on to note that
The first appellant's affidavit sworn on 4 November 2013 in support of his application was, according to the trial judge, in almost identical terms to his affidavit in support of his application for a suppression order in the Magistrates Court in May 2012. The trial judge was very critical of its scope. It offered very little about the first appellant's work circumstances after he was charged with dangerous driving causing death and contained no information as to the organisation or constitution of the gang crime squad. The court was not provided with affidavit evidence as to how and why the first appellant's duties were reallocated after he was charged with the offence.  ...  The trial judge noted from the first appellant's affidavit that his involvement in the incident giving rise to the criminal charge was known to motorcycle gang members since early May 2012. The trial judge continued:
Being in close proximity to gang members is part of the [gang crime squad's] modus operandi. Tension between the squad and the gangs is likely to be inevitable. It cannot be the case that mere membership of the squad would lead to the making of a suppression order in every case involved in the evidence of a squad member. Equally, it cannot be the case that mere membership of the [TRG] would lead to the making of a suppression order in every case involving the evidence of a group member.
There was also evidence that from time to time, members of the gang crime squad were removed from the squad for their safety by those in the force responsible for the deployment of police officers. No such action had been taken in relation to the appellants.
The trial judge concluded:
I am far from satisfied that the publication of [the second appellant's] name will endanger State or national security or will compromise any operation currently being undertaken by the [TRG]. I am far from satisfied as to the quality of the evidence offered in support of both applications by reason of the various matters already mentioned by me. I am not satisfied that it is in the interests of justice to grant either application.
 In referring to West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 McLure P quoted the statement by Owen JA that
 The principle of open justice is a significant element within the proper functioning of the justice system. It promotes veracity of testimony by encouraging attention among those involved in a case to the seriousness of the judicial process. Publicity may cause (or encourage) others with relevant information to come forward. It increases the community's appreciation of the methods of government and confidence in judicial remedies. It also ensures that the fairness, integrity and efficiency of the courts, and its administrators, are subject to public scrutiny
On that basis it is only in exceptional circumstances that courts depart from the principle of open justice by prohibiting  publication of the name or identity of a witness in criminal and other proceedings. "Mere embarrassment, distress, loss of privacy or shame if the identity of the witness were revealed is not sufficient".

Procedure matters. McLure P states that
As in WAN v WA, the second appellant was named and gave evidence in open court. The first appellant was named and present in open court. In the circumstances of this case, those factors told against the appellants' claim that suppression orders were necessary to protect the appellants against the risk of physical harm from motorcycle gang members. Any gang member with malign intent would have had little difficulty in obtaining the identifying details of both appellants.
However, there is a more fundamental objection. The evidence before the trial judge and this court fell well short of establishing that failure to make a suppression order would result in any realistic risk of physical harm to the appellants or their families over and above any risk flowing solely from their position as a member of the gang crime squad. The criminal proceedings did not involve any claim against or involving any gang member. In short, I agree with the trial judge's evaluation of the affidavit evidence.
As to the second appellant's recent move to the TRG, the covert work is identified as including the protection of undercover officers involved in drug transactions, arresting the 'target' once a drug transaction is complete, and assisting in witness protection. The work is covert in the sense that officers do not wear or use equipment that identifies them as a police officer. In essence, the claim is that mere membership of the TRG justifies the making of a suppression order. The second appellant swore that if his identity was made public 'then this may compromise my involvement in any current undercover operation as I am more likely to be identified as a police officer'. Having regard to his very short time in the TRG, I am not persuaded that his assessment of what may or may not happen is reliable. Further, the second appellant had been a uniformed police officer with face-to-face contact with motorcycle gang members which did not seem to be an impediment to his covert operations. In any event, any exposure resulting from the criminal proceedings would have a time limited effect. The second appellant's circumstances do not justify a departure from the principle of open justice. 

Musical Ghosts

It has been a good week for scholars of identity offences, with revelation that Mamoru Samuragochi - the deaf celebrity who is one of Japan's "most popular musical figures" - had used a ghostwriter over the past two decades to compose most of his music.

Samuragochi has been described as a "modern-day Beethoven" who pours "despair, hope and prayers" for those living in the "confused modern world". Confusion is unsurprising, given that he has now confessed that someone else had written his most famous works, including Symphony No. 1 'Hiroshima', Sonatina for Violin and the theme music for the video games Onimusha and Resident Evil.

One ghostwriter, Takashi Niigaki, has further accused Samuragochi of faking deafness. To adapt Gilbert & Sullivan, things are not what they seem, soy milk masquerades as cream.

The New York Times reports that
On Wednesday, Mr. Samuragochi expressed remorse for the deception, though he did not reveal why he chose to come forward at that particular moment.
“Samuragochi is deeply sorry as he has betrayed fans and disappointed others,” said a statement released by Mr. Samuragochi’s lawyer. “He knows he could not possibly make any excuse for what he has done.”
The reason for this sudden repentance became clear on Thursday when the ghostwriter revealed himself to be Takashi Niigaki, 43, a largely unknown part-time lecturer at a prestigious music college in Tokyo. Mr. Niigaki said he had written more than 20 songs for Mr. Samuragochi since 1996, for which he received the equivalent of about $70,000.
He said he felt so guilty about the deception that he had threatened to go public in the past, but Mr. Samuragochi had begged him not to. He said he finally could not take it anymore when he learned one of his songs would be used by the Olympic skater. He told his story to a weekly tabloid, which went on sale Thursday.
“He told me that if I didn’t write songs for him, he’d commit suicide,” Mr. Niigaki told a crowded news conference. “But I could not bear the thought of skater Takahashi being seen by the world as a co-conspirator in our crime.”
Perhaps just as shocking was Mr. Niigaki’s assertion that Mr. Samuragochi was never deaf. Mr. Niigaki said that he had regular conversations with Mr. Samuragochi, who listened to and commented on his compositions. Mr. Niigaki said the deafness was just “an act that he was performing to the outside world.”
Most writing about authenticity and identity in music centres on performance, with for example exposes of recordings attributed to Joyce Hatto, controversy over lipsynching in live performance (oops, Milli Vanilli) and acknowledgement that some singers in feature films were 'assisted'.

Having a ghost write your score does however have a long history. Henriy Desmarest (1661-1741) ghosted for Louis XIV’s chapel master Nicolas Goupillet. Austrian dilettante Franz von Walsegg-Stuppach (1763-1827) reportedly passed off the work of composers such as Mozart. In 1989 Italian modernist composer Vieri Tosatti claimed that he was responsible for work claimed by Giacinto Scelsi.

'Class, Ideology, and il caso Scelsi' by Eric Drott in (2006) 89(1) Musical Quarterly 80-120 notes
 it was an interview with the composer Vieri Tosatti published a few months after Scelsi's death, in the January 1989 issue of the magazine Il giornale della musica, that helped ensure the latter's continuing notoriety. In the course of the interview, entitled “Giacinto Scelsi, c'est moi,” Tosatti recounts how Scelsi had employed him as an assistant over a period of some twenty-five years, from the 1940s to the early 1970s. In this capacity Tosatti, along with a stable of other assistants Scelsi hired over the years, helped produce many of the scores that in the 1980s would win the composer a wide following among critics and aficionados of new music. Despite his claim to have acted more as a ghostwriter than as an assistant, effectively composing much of Scelsi's Ĺ“uvre himself, Tosatti expresses no desire to claim this music as his own, deeming it to be of negligible artistic value. He insists that his intention is to clear away the “mystification” surrounding Scelsi's compositions, which he attributes to critics either too unscrupulous or incompetent to recognize Scelsi's lack of genuine talent: “If I am now going to say some things that won't cast a positive light on Giacinto Scelsi's figure as a composer, this doesn't mean that I had anything against him. I do have something against the mystification whereby Scelsi's music is taken to be good, just as one hundred percent of what the accredited critics consider to be the music of our time is taken to be good.”
Rosemary Brown (1916–2001) gave ghosting another meaning, claiming - like Henry James' scribe Theodora Bosanquet (1881-1961) - that she took dictation, often on a daily basis, from the illustrious dead. Liszt suppposedly reported - via Ms Brown - that
We in spirit hope to help people to realise that they are evolving souls destined to pass into the realms of non-matter where they will continue to evolve. This realization should give them a whole new dimension of thinking, and raise their self-image above its earthbound limits. 
Brown took spectral dictation from Chopin, Beethoven, Delius, Rachmaninov, Schubert, Grieg, Brahms, Gershwin, Schumann, Debussy, Berlioz, J.S. Bach and John Lennon. George Bernard Shaw filled in her time by dictating a play, Caesar's Revenge. Bertrand Russell and Rupert Brooke contributed their thoughts. Van Gogh - another one of those people whom Nicolas Slonimsky characterised as masters whose careers, until rescued by the zany Ms Brown, had been "fatally affected by their protracted states of death" - even put in an appearance.

She explained that "I've always had the ability, ever since I can remember, to see and hear people who are thought of as dead". Reminiscent, alas, of quite a few people whose ills are addressed through court-ordered medication.

Brown was happily not entangled in the copyright problems evident in the 1927 Cummins v Bond ('Chronicles of Cleophas') and the 2000 Schucman ('Course in Miracles') disputes (the latter involving dictation by no less than Jesus Christ), noted here.


'Digital Identity, Privacy, and the Right to Identity in the United States of America' by Clare Linda Sullivan in (2013) Computer Law & Security Review 348-358 analyses
digital identity as an emergent legal concept in the United States of America, as a consequence of the move to place all federal government services on-line. The features and functions of digital identity and its legal nature are examined, and the consequences are considered. 
The analysis reveals that the part of digital identity which is required for transactions has specific legal standing under the scheme. This feature makes digital identity valuable and vulnerable. The identifying information which links the registered digital identity with a person is especially susceptible to error and fraud. Yet the system is designed so that all dealings using the digital identity are automatically attributed to the individual to whom it is registered under the scheme, regardless of whether that person did in fact use the identity to transact. This can result in significant consequences for all users and there are implications for the integrity of the scheme, but the consequences are most immediate and serious for the innocent individual. 
To date, legal scholarship and jurisprudence in the United States has relied on privacy to protect personal information. This article argues that privacy, by its nature, cannot adequately protect the part of digital identity which is required for transactions because of its essentially public nature. The author argues instead that the right to identity can and should be recognised in the United States to fully protect an individual’s rights under this scheme, especially considering the scheme’s inherent fallibilities.

06 February 2014

Royals, Pastafarians and giant moon monsters

One of the delights of reading law is encountering reports of litigants who claim that the Commonwealth lacks power because they are royal, or witches, or only accountable to God, or that the Constitution is invalid. Some people have fun with names or simply engage in fraud. Some have fun with fake passports, visas and other identity documents.

Claims of royal immunity appear to have been unpersuasive in Roman & Anor v Commonwealth of Australia & Ors [2004] NTSC 9, with the judgment stating that
The self-represented plaintiffs are husband and wife. The plaintiffs assert in paragraph 22 of the Further Amended Statement of Claim that the first plaintiff is “a royal and a religious Corporation Sole, namely Grand Duke of Lithuania and Archbishop President of Universal Family”. The first plaintiff in evidence claimed that his royal rank was superior to that of Her Majesty the Queen of Australia. In the course of the lengthy hearing I pointed out to the first plaintiff that having brought the action in this Court, whatever his royal rank might be, he had submitted to the jurisdiction of the Court and that given the equality of all before the law, any royal status he might have was irrelevant to the proceedings and that it was therefore unnecessary for me to decide whether he was of royal status or not.
No problems there with s 15(1)(e) of the Evidence Act 1995 (Cth), irrespective of the fact that neither the Grand Duchy (or Kingdom) of Lithuania nor legal identity of Grand Duke are recognised in international law.

Commonwealth officers had attended the plaintiffs’ premises at about noon on 25 May 2000
with the intention of locating a female illegal immigrant who had been living in Australia under a variety of false identities. That woman, who gave evidence before me, has been variously called, amongst other names, Mehra, Nisha, Nuku, Lynette Mwado and Lynette Aliba. She was referred to as Lynette during the proceedings and I shall refer to her as Lynette. At the time of the defendants’ attendance at the plaintiffs’ premises Lynette was on bail awaiting trial for alleged social security frauds, a condition of her bail being that she reside with the plaintiffs at their residence. The defendants say that Quirk, Warton and Swain lawfully entered the plaintiffs’ premises with the consent of the second plaintiff .... 
The defendants say that as a result of information received from Lynette later that day following her arrest, Quirk made application to Stipendiary Magistrate Wallace for the issue of a warrant under s 3E Crimes Act 1914 (Cth) to enter the plaintiffs’ Nightcliff residence and to search and seize evidential material relating to possible offences by each plaintiff under the Migration Act 1958 (Cth) – giving migration assistance whilst not a registered Migration Agent contrary to s 281 Migration Act – and the Crimes Act 1914 (Cth) – defrauding the Commonwealth contrary to the then s 29D in virtue of the then s 5 Crimes Act. The defendants deny they acted with malice and say they acted throughout honestly and in good faith in obtaining and executing the warrant.
In Ron Mann v Peter Isaacson Publications Pty Ltd No. 367 of 1986 Defamation [1988] NTSC 76 and Ron Mann v. John E Hogan No. 794 of 1987 Practice and Procedure [1988] NTSC 13 the Grand Duke appears to have taken - and lost - action as Mr Ron Mann.

The 1994 Immigration Review Tribunal decision in Applicant: Estrella Nguyen nee Salvatiera Principal: Estrella Nguyen (nee Salvatiera) IRT Reference: S92/01866 #number 3385 [1994] IRTA 3385 states that
A written submission on the applicant's behalf was submitted with the application in this matter. Such submission was prepared by Bishop Roman Dambski of St Basil's Priory in Darwin. 
The judgment in Cameirao v Minister for Immigration & Multicultural Affairs [2000] FCA 1319 notes that
The applicant in these proceedings is Ms Jovita Cameirao, a Filipino national. Prior to 23 November 1997, her surname was Del Rosario; on that date she acquired a "marriage blessing" from "the Universal Family" as a result of her de facto union with an Australian national, one Alfredo Jose Cameirao. On the hearing of her application, Ms Cameirao was assisted by Dr Prince Roman, the leader and Bishop in Darwin, of "the Universal Family".
Since that times things have apparently continued to improve for Prince Roman - presumably the Lord helps those who help themselves - as his website now refers to him as
His Imperial Majesty King Roman the First, Royal Sovereign of East Europe, Grand Duke of Lithuania, and Count of Lubraniec Dambski.
One of his imperial majesty's several websites - there are almost as many as his titles - indicates that
Like King William I of England who reigned from France, and King George I of Great Britain who reigned from Germany, and left the running of their kingdoms to parliament, His Imperial Majesty King Roman, Royal Sovereign of East Europe, Grand Duke of Lithuania, currently reigns from Darwin, Australia, and chooses to leave the running of his Realm to respective civil parliaments.
Most of King Roman's titles are inherited and therefore exist independant [sic] of any external recognition, while others are legally accrued.
It notes that
His Imperial Majesty is also Grand Prince/Grand Duke of Belarus, Ukraine, Livonia, Novgorod & Vladimir; Prince/Duke of Aukstota, Bryansk, Chernikov, Chernobyl, Courland, Galicz, Giedroyc, Grodno, Kiev, Kosovo, Krvac, Lvov, Minsk, Moldova, Novaharodak, Ossetia, Oswiecim, Palanga, Perjaslavl, Polotsk, Pskov, Ratno, Riazan, Rostov, Santok, Smolensk, Starodub, Trakai, Turau, Tver, and Vitebsk; Emperor and King Elector, Sovereign of the Royal Lithuanian Order & of the Most Honourable Orders of the White Knights and of Saint Andrew; Patriarch of Universal Family.
That is an echo of the Duke of Avram who very modestly characterises himself as
The Grand Duke of Avram, Marquis of Mathra, Earl of Enoch, Viscount Ulom, Lord Rama, cardinal-archbishop of the Royal See of the Continent of Australia, Earl Marshall, D.Litterarum, D.Sc., M.B.A., D.Phil., D.C.L., D.B.A., D.D., Grand Master of Orders of the Avram, St. Mark, The Ankh, Continental Ch. Cross, The Most Sacred Order of the Holy Wisdom, The Most Sacred Lamb, Serene Order of Leonard, Illustrious Order of Merit, The Black Swan, Royal Order, Knight of Sword, Knight of Merit, Royal Knight, Chevalier of Honour, Grand Knight Order Leonard, Knight Grand Cross Order of the Sacred Sword and Lance, Knight of Veritas, Knight Grand Cross The Royal Order,  Knight Grand Cross of Justice,  Knight Comdr. Grand Cross Order of St. Mark. Continental Gold Ch.Cross, Grand Knight Cross Order of The Ankh, The Order of the Holy Cross of Jerusalem, Grand Croix Order Souverain des Chevaliers du Saint-Sepulcre Byzantin, Magnus Cruz Ordo Supremus et Militaris Sancti Stephani Martyr, Knight Grand Cross Order of Aeterna Lucina, Knight Grand Star Illustrious Order of Merit, Knight of Bountiful Endeavours ...
In 2009 Prince Roman invited people to sign an online petition:
We the undersigned hereby petition the Lithuanian Government and President to advise the Lithuanian people that they have a king, and make early arrangements for King Roman of Lithuania to be crowned.
Alas, of of two years later it appeared that there were only 11 signatories and there was no coronation.

His Imperial Majesty appears to resist what others would regard as discouraging. He offers to sell you a title of nobility, with payment via PayPal. How much? Depending on which of the many royal sites you encounter it is $6,500 for title of Duke, $8,500 for Prince, and $10,000 for Grand Duke. The title of King is a snap at a mere $1m.

The money will be used to restore his kingdom and fund his "revolutionary" spacecraft, which resembles a flying saucer and will be useful for travelling to the Moon. He indicates that when we arrive we will
find caves, oxygen-releasing algae, and water lakes other than the ice lake in the South Polar Aitken Basin, and teeming with life. If, perchance, a cockroach was actually left on the Moon, as indicated by US astronauts, then we may also find an infestation of giant cockroaches.
I am not sure whether that is droll imperial majesty humour or a warning about giant bug-eyed monsters that have presumably been feeding on the lunar algae. Presumably if white mice were carelessly left by astronauts we would perchance find giant red-eyed rodents eating lunar cheese.

The King-Patriarch and Emperor claims a doctorate in Divinity from St Basil's Theological College, Hobart (apparently related to the St Basil's Priory in Darwin mentioned in the IRT decision), a graduate diploma in Professional Herbalism from the Northern Institute of Botanical Medicine (Qld) and a doctorate in Naturopathy from the Anglo-American Institute of Drugless Therapy, Renfrew. His Imperial Majesty states that he was Professor of Theology of the "then International Institute of Graduate Studies, Canberra", an entity with which I am oh so regrettably unfamiliar. He has an "experiential Doctor of Philosophy" from the mysterious Institute, along with honorary doctorates in theology.

There is little to stop people starting their own church or conferring problematical honours. I was interested to see, via the Wayback Machine, that in 2008 the 'Universal Family' site featured the following information
To globally assist orphans, destitute, oppressed 
Universal Ministry is the now name for Universal Family. We are a religious ministry to provide assistance to orphans, destitute and oppressed of the world without discrimination. 
Universal Family offers a unique online RELATIONSHIP BLESSING for defacto marriages or adoptions. 
You may also, for suitable donations, become a Universal Minister, Doctor, Sir, Lady, and Benefactor. 
To donate, tithe, or bequeth [sic] to help our least fortunate brothers and sisters, please contact .... 
You will be greatly blessed for the charity you give. 
The founder of Universal Ministry is King Roman, formerly Ronald Victor Charles Mann.
The Universal Family Ministry site offers "your own Ministry for a bona fide donation of $10,000 … Bona fide applicants will receive a Certificate of Ministry and an Honorary Doctorate".

But wait, as they say, there's more!
Universal Family Ministry also provides Marriage Blessings for those who are unable, or do not want, to marry officially. These Blessings come in the form of a certificate, and can be acquired for a donation of $295, with additional copies of the Blessing certificate for $25 each. ... 
Universal Adoption Blessings are similarly available through the same site above.
Ordination as a Minister in the Church of the Flying Spaghetti Monster (FSM) is much cheaper.

As noted elsewhere in the blog, s26 of the Marriage Act 1961 (Cth) provides that "The Governor-General may, by Proclamation, declare a religious body or a religious organisation to be a recognised denomination for the purposes of this Act". It does not appear that the Universals have been so recognised.


'The Right to Map (and Avoid Being Mapped): Reconceiving First Amendment Protection for Information Gathering in the Age of Google Earth' by Marc Jonathan Blitz in (2013) 61 Columbia Science and Technology Law Review 116 argues that
Modern electronic maps not only tell individuals where to find a city or street, they simulate the experience of traveling there: With the aid of Google’s "Street View" service, for example, individuals can peer at the details of streets, squares, and storefronts thousands of miles from where they stand – even in locations they have never visited, and may never visit at all. Such technological developments typically raise new legal challenges, and the one that has received the most attention from commentators is the challenge of protecting privacy. Legal commentators have worried that if mapmakers can record vast portions of our environment, and then allow individuals to observe any location they wish on the World Wide Web (or with other software applications), they will open up to visual observation areas and activities that people legitimately wish to keep obscure or unseen. Legislators in various United States jurisdictions have thus proposed bills that would place limits on what Google or other modern mapmakers can photograph – and legislators in other countries have already imposed such limits on Google Street View. But if there are privacy and security interests that weigh in favor of restricting the image capture used in modern mapping services (and I argue in this essay that there are), are there also First Amendment or other liberty interests that cut the other way? If so, what is the nature of these constitutional liberty interests to create or access dynamic computerized maps, and how do we balance those interests against the privacy and security interests that might justify some restrictions on what mapping software can reveal about us? It is, after all, difficult to strike this legal balance in the proper way if we attend to only one side of it. 
The First Amendment already protects photography and other kinds of artistic expression. Scholars such as Seth Kreimer have argued that it should recognize a broader right of "image capture" by individuals. Recent cases on video recording of police encounters, such as the Seventh Circuit’s decision in American Civil Liberties Union v. Alvarez, have found that, in some circumstances, individuals have a right to create a visual record of their encounters with government. 
But should free speech not only protect image capture, but also protect the wide scale, automated image capture by modern-day mapmakers? Such automated image capture, after all, is in key respects very different from what a person does when she takes a photo with an eye to such qualities as the placement of objects within a frame, the arrangement of light and shadow in it and in relation to the objects, and the interplay of color and shape. In contrast to such conscious and careful decisions about what the photograph will look like and about the way a viewer might later understand it and react to it, the cameras on Google’s fleet of Street View trucks are simply sweeping in as much of the environment as possible – so that Google can stitch into a virtual three-dimensional landscape for viewers to explore. Even if the First Amendment protects individual photographers, it is not clear that it would also protect this wide-scale gathering of visual data. 
I argue in this article that it should, and that this is so not simply when (and because) such image capture is a prelude to later expressive activity, but rather because the First Amendment should protect a right to receive (and capture) information from the surrounding environment. While the Supreme Court, in previous decisions, has indicated that the First Amendment only gives individuals a "right to receive information" when that information comes from a "willing speaker," I argue that this conclusion deserves reconsideration. First Amendment values, I argue, are offended not only when citizens are metaphorically gagged by the government, but also when they are blindfolded by it or forced to view the world only through government-imposed lenses. This principle that individuals should not be confined to a government-filtered view of the world, but should rather be able to explore it on their own – at least in ways that avoid imposing harms on others – applies not only to the observation of political activities (such as police encounters) but also to exploratory activity more generally. Some scholars have previously argued for such a right to autonomous exploration, but argued that (in order to keep it within reasonable limits) it should be understood as a right that journalists or those playing similar roles can invoke under the press clause, not a right that is available to citizens more generally. Using modern computer generated maps as an example, I argue for a broader conception of the right to receive information that allows individuals to explore and record their environment even when their focus is on matters of purely personal interest, rather than on issues of public concern, and even when their activities have no connection to journalism. I also argue that even if courts recognize that individuals have such a right to receive information about their environment, there is still room for government legislation that bars individuals or mapmaking companies from photographing or video recording their environment, but that any such legislation should have to survive a form of intermediate scrutiny in order to be permissible under the First Amendment.

05 February 2014

To a point, Lord Copper

'The Open-Access Movement is Not Really about Open Access' by Jeffrey Beall in (2013) 11(2) tripleC 589-597 claims that
While the open-access (OA) movement purports to be about making scholarly content open-access, its true motives are much different. The OA movement is an anti-corporatist movement that wants to deny the freedom of the press to companies it disagrees with. The movement is also actively imposing onerous mandates on researchers, mandates that restrict individual freedom. To boost the open-access movement, its leaders sacrifice the academic futures of young scholars and those from developing countries, pressuring them to publish in lower-quality open-access journals. The open-access movement has fostered the creation of numerous predatory publishers and standalone journals, increasing the amount of research misconduct in scholarly publications and the amount of pseudo-science that is published as if it were authentic science.
Beall warns that
 I do find that the open-access movement is a Euro-dominant one, a neo-colonial attempt to cast scholarly communication policy according to the aspirations of a cliquish minority of European collectivists. Early funding for the open-access movement, specifically the Budapest Open Access Initiative, came from George Soros, known for his extreme left-wing views and the financing of their enactment as laws (Poynder 2002). 
He argues that
If you ask most open-access (OA) advocates about scholarly publishing, they will tell you that we are in a crisis situation. Greedy publishers have ruined scholarly communication, they'll claim, placing work they obtained for free behind expensive paywalls, locking up research that the world needs to progress. 
The OA zealots will explain how publishers exploit scholars, profiting from the research, manuscripts, and peer review that they provide for free to the publishers, who then turn around and sell this research back to academic libraries in the form of journal subscriptions. They will also tell you that Elsevier, the worst of the worst among publishers, actually created bogus journals to help promote a large pharmaceutical company's products. Imagine the horror. Because of this, we can never trust a subscription publisher again. Ever. Moreover, the advent of the Internet means that we really don't need publishers anymore anyway. We can self-publish our work or do it cooperatively. Libraries can be the new publishers. All we have to do is upload our research to the Internet and our research will be published, and the big publishers will wither up and die freeing up academic library budgets and creating a just and perfect system of scholarly publishing. The story those promoting OA tell is simple and convincing. Unfortunately, the story is incomplete, negligent, and full of bunk. I'm an academic crime fighter (Bohannon 2013b). I am here to set the record straight. 
The logic behind the open-access movement is so obvious, simple, and convincing that no one could disagree with it, except that OA advocates don't tell the whole story. Open access will grant free access to research to everyone, including research-starved people in the Global South who have never read a scholarly article before. How could anyone oppose that? It will also allow everyone who has ever had the frustration of hitting a paywall when seeking a research article to access virtually everything for free, or so they claim. 
2. What the Open-Access Movement is Really About 
The open-access movement is really about anti-corporatism. OA advocates want to make collective everything and eliminate private business, except for small businesses owned by the disadvantaged. They don't like the idea of profit, even though many have a large portfolio of mutual funds in their retirement accounts that invest in for-profit companies. Salaries of academics in the United States have increased dramatically in the past two decades, especially among top professors and university administrators. OA advocates don't have a problem with this, and from their high-salaried comfortable positions they demand that for-profit, scholarly journal publishers not be involved in scholarly publishing and devise ways (such as green open-access) to defeat and eliminate them. 
The open-access movement is a negative movement rather than a positive one. It is more a movement against something than it is a movement for something. Some will respond that the movement is not against anything; it is just for open access. But a close analysis of the discourse of the OA advocates reveals that the real goal of the open access movement is to kill off the for-profit publishers and make scholarly publishing a cooperative and socialistic enterprise. It's a negative movement. 
This kind of movement, a movement to replace a free market with an artificial and highly regulated one, rarely succeeds. In fact, the gold open-access model actually incentivizes corruption, which speed the path to failure. The traditional publishing model, where publishers lived or died on subscriptions, encouraged quality and innovation. Publishers always had to keep their subscribers happy or they would cancel. Similarly, a movement that tries to force out an existing technology and replace it with a purportedly better one also never succeeds. Take the Semantic Web for example. It has many zealous advocates, and they have been promoting it for many years. Some refer to the Semantic Web as Web 3.0. However, despite intense promotion, it has never taken off. In fact, it is moribund. The advocates who promoted it spent a lot of time and blog space cheerleading for it, and they spent a lot of time trashing technologies and standards it was supposed to replace. In fact, that was what they did the most, badmouthing existing technologies and those who supported and used them. One example was a library standard called the MARC format. This standard was ridiculed so much it's a wonder it still even exists, yet is still being used successfully by libraries world-wide, and the semantic web is dying a slow death. Open access publishing is the "Semantic Web" of scholarly communication. 
The open access movement and scholarly open-access publishing itself are about increasing managerialism (Grayson 2013). Wherever there is managerialism, there is an increased use of onerous management tactics, including mandatory record keeping, rationing of resources, difficult approval processes for things that ought to be freely allowed, and endless committee meetings, practices that generally lead to cronyism. The traditional publishing model had the advantage of there being no monetary transactions between scholarly authors and their publishers. Money, a source of corruption, was absent from the author-publisher relationship (except in the rare case of reasonable page charges levied on authors publishing with non-profit learned societies) in the traditional publishing model. Managerialism is the friend of those who want to restrict freedom and advancement. It is a tool for creating malevolent bureaucracies and academic cronyism. Managerialism is the logical and malevolent extension of office politics, and it will hurt scholarly communication. Many universities subsidize or pay completely for their faculty members' article processing charges when they submit to gold (author pays) open-access journals. The management of the funds used to pay these charges will further corrupt higher education. The powerful will have first priority for the money; the weak may remain unfunded. Popular ideas will receive funding; new and unpopular ideas, regardless of their merit, will remain unfunded. By adding a financial component to the front end of the scholarly publishing process, the open-access movement will ultimately corrupt scholarly publishing and hurt the communication and sharing of novel knowledge. 
The open-access movement was born of political correctness, the dogma that unites and drives higher education. The open-access advocates have cleverly used and exploited political correctness in the academy to work towards achieving their goals and towards manipulating their colleagues into becoming open-access advocates. One of the ways they've achieved this is through the enactment of open-access mandates. The strategy involves making very simple arguments to faculty senates at various universities in favour of open- access and then asking the faculties to establish the mandates. These mandates usually require that faculty use either the gold or green models of open-access publishing. OA advocates use specious arguments to lobby for mandates, focusing only on the supposed economic benefits of open access and ignoring the value additions provided by professional publishers. The arguments imply that publishers are not really needed; all researchers need to do is upload their work, an action that constitutes publishing, and that this act results in a product that is somehow similar to the products that professional publishers produce. ... 
Another inconsistency in the open-access movement is that the zealots have been attacking scholarly journal publishers but generally ignoring scholarly monograph publishers, even though they operate using basically the same model, selling proprietary content to libraries. This is evidence that the open-access movement isn't really about making content open-access; it's really about shutting down journal publishers. Were it a truly principled movement, it would apply its principals consistently.


The Guardian features a report on a "wide-ranging" but thin interview with Australian Information Commissioner John McMillan, in which he has
called for intelligence agencies to be subject to freedom of information laws and has expressed concern about “mixed messages” on open government and transparency. 
Having recurrently highlighted the mixed messages coming from the Office of the Information Commissioner regarding access under the Freedom of Information Act to information held by that agency and by other agencies I am somewhat underwhelmed by Professor McMillan's enthusiasm for extending the Act.

The Guardian states that the Commissioner said intelligence agencies (the Australian Security Intelligence Organisation, Australian Secret Intelligence Service and the Australian Signals Directorate) should be subject to FOI legislation.
 “My preference would be at least for the FoI Act to apply to the intelligence agencies,” he said. 
“I think the FoI Act can suitably apply to any agencies, parliamentary departments and the intelligence agencies. The exemptions are adequate to protect whatever has to be protected.” ... 
McMillan added he was not confident changes would be made to freedom of information laws. 
“I’m also realistic and do not put a lot of time into arguing that case because I think it unlikely in the near future that there’s going to be any change,” he said.
The Commissioner is reported as stating that the Inspector General of Intelligence & Security (IGIS)  is an effective oversight for intelligence agencies and expressed disappointment that both houses of the national parliament are now exempt from FOI.
 “I see a lot of mixed signs and I hear a lot of mixed messages," he said. "I’ve no doubt that the 2010 reforms, in combination with the open data revolution, have substantially improved open government in Australia. 
"But I was disappointed that the parliament amended the act to exclude the parliamentary departments before the Hawke report. 
“My concern always is that in the middle ranks of agencies if they get conflicting messages we won’t get this strong commitment to open government that I think is important.” 
In seeking access to information held by the OAIC I have highlighted concerns that those "middle ranks" in looking at the OAIC's responses will get the message from the Commissioner's own staff that access actually isn't that important.

Sadly, if the OAIC is persistently resistant to providing access to information on matters of direct public concern it can expect other agencies to follow its lead.

The Guardian reports that
The commissioner also said the resources given to his office were not enough to deal with the increased caseload of freedom of information work, which meant agencies could be “gaming the system”. It now takes close to 200 days to allocate an application for information commissioner review. 
He said: “I’m not going to name individual cases, but I have a great concern that agencies will say, ‘Let’s just deny it. The person can appeal to the OIC, it may take them a year or two to get around to it,’ in which case the sensitivity will go out of the issue. 
"I accept that that happens at the moment. So there is gaming of the system going on.”
As one peer said, "gaming the system, who'dathunkit".

04 February 2014


The Sydney Morning Herald reports that Akal Kaur Khalsa has been arrested at Sydney airport trying to leave the country on a business class one-way ticket and an Italian passport in the name of Margaret Maree Saviane.

The SMH indicates that Khalsa was taken from the airport and bought before Garling J, who remanded her in the custody of the NSW Department of Corrective Services for failing to comply with a series of court orders.
Justice Garling said the two passports in Ms Khalsa's possession showed she had been to Malaysia, Myanmar, New Zealand and India in the past six months. He said she was a "serious flight risk" as documents she was carrying showed she had organised a house in New Zealand, future travel to Fiji and had withdrawn $35,000 in cash. If released, it was likely she would not turn up in court for an examination of her financial situation on Thursday, he said.
Last year the NSW Supreme Court in Patterson v Khalsa (No.3) [2013] NSWSC 1331 ordered Khalsa to pay $6.6 million in damages following a civil claim brought by the mother of Will Patterson, a six-year-old Sydney boy who has quadriplegic cerebral palsy as a result of his home birth in November 2006. Garling J found she had been negligent in both recommending and carrying out the home birth. Khalsa did not defend the case brought against her by the Pattersons.

In Patterson v Khalsa (No 2) [2013] NSWSC 901 Garling J stated that
I would infer that she has intentionally, or deliberately, failed to comply with the Court's Order. Of course, that conclusion may be altered if she attends in the future or if an explanation is provided for her non-appearance. However, at the moment, and in the absence of any such appearance or explanation, there is no available view other than that she has intentionally failed to comply with the Order. In those circumstances, namely of deliberate or intentional defiance of a Court Order, the Court is left with no alternative but to invoke the power which it has under s 97 of the Civil Procedure Act 2005 ("the Act") to issue a warrant for her arrest. 
That warrant, in accordance with the provisions of the Act, is sufficient authority for the Sheriff of New South Wales and all Officers therein, with the assistance of the New South Wales police force, as may be necessary, to arrest Ms Khalsa and detain her in custody pending a date and time fixed for appearance before the Court.
A warrant was accordingly issued in mid year for Khalsa's arrest.

In Patterson v Khalsa [2013] NSWSC 336 Garling J stated
On 14 March 2013, which was the day the defendant's liability evidence was due, my Associate received a letter from the defendant, in which the following was stated:
"Please inform Justice Garling that I am withdrawing from these proceedings as I am unable to fund my defence. My previous solicitors have indicated that I was returning to Sydney on March 14th. This is not the case. My present situation is that I have no fixed address and minimal income with little to no prospects in the future, given my age of 68. Please use the above email address for any future contact."
There has been no other explanation from the defendant as to why she has not served her witness statements or remaining expert reports, nor is there any suggestion by her that she intends to rectify her present default in complying with all of the court directions.
In October last year, Ms Khalsa was found guilty of professional misconduct and unsatisfactory professional conduct over a different home birth.

The Nursing and Midwifery Tribunal found in Health Care Complaints Commission v Akal Kaur Khalsa (No 1) [2013] NSWNMT 20 that she had failed to properly care for and manage the baby - who had a ruptured umbilical cord, persistent low temperature and could not feed - for more than 15 hours before it was admitted to Manly hospital in January 2011. The Tribunal also found that Khalsa failed to make proper clinical records and later submitted a second set of records that were false or misleading.

The SMH notes that Khalsa was in private practice as a midwife for over 34 years until March 2011 and worked as a casual nurse at the Royal Hospital for Women at Randwick for 10 years until October 2012.

A perspective is provided in 'Nurses, midwives and the requirement for "appropriate" professional indemnity insurance' by Kim Forrester in (2012) 19(4) Journal of Law and Medicine 678-684

Names and registers

The UK Independent reports that Mr King of Ink Land King Body Art The Extreme Ink-Ite (aka Body Art, the person formerly known as Mathew Whelan) has been refused a UK passport in that name.

Whelan changed his name by deed poll four years ago and reportedly has a drivers licence in his new name.
 "This is a breach of my human rights," said the Lib Demo activist from Birmingham.
"They want to put my birth name on my passport. But that is not my name any more." ...
[D]espite filling out the relevant forms and sending the £72.50 fee, Body Art received a letter from the Passport Office on 15 January, which said that they were sticking to policy and were refusing to issue a passport because of his unusual name.
The government agency told the Birmingham Mail that a policy section regarding "strings of words or phrases" meant his name was not admissible.
The section reads: "Where an applicant changes his or her name to a string of words or phrases that would not normally be recognised as a name, this should not be entered on to the personal details page of the passport."
The Mail adds a bit more info -
“I applied for an update on my passport because it had expired. I got a phone call from an administrator at the passport office and they said there was a problem".
“They said my application was being reviewed by the policy department, they said they needed further government documents with my name.”
Body Art said that he promptly sent off his driving licence, a letter from his MP and mortgage letter, all by recorded delivery.
But on January 15, he received a letter from the Passport Office saying that they were sticking to policy and were refusing to issue a passport because of his unusual name. ....
A spokeswoman from Passport Office said they did not comment on individual cases and referred us to the ‘strings of words or phrases’ of their policy.
It read: “Where an applicant changes his or her name to a string of words or phrases that would not normally be recognised as a name, this should not be entered onto the personal details page of the passport. For example, the names ‘New Year’ ‘Happy Easter’ or ‘Good Bye’ are unacceptable as, when put together, they become a recognised phrase or saying.”
Pointers to aspects of the Australian, UK and US name change regime are here.

'Private Lives, Public Records: Illegitimacy and the Birth Certificate in Twentieth-Century Britain' by Nadja Durbach in (2013) Twentieth Century British History comments that
In the early decades of the twentieth century, as the British government expanded its social programs, and private charities and co-operative associations began to offer more benefits, birth certificates became essential to the bureaucratic process of establishing both age and identity. But every time a birth certificate was produced, it made the private circumstances of an individual’s birth public knowledge. For those born out of wedlock, handing over these certificates was often stigmatizing at a time when illegitimacy remained for many a shameful family secret. When the government finally introduced an abbreviated birth certificate in 1947, which documented name, sex, and birth date without reference to parentage, they were responding to long-standing concerns both within and beyond the state bureaucracy about the tension inherent in keeping public records about people’s private lives. The emergence of the short form birth certificate is thus part of a much larger human story that can help us to map significant shifts in the relationship between the individual citizen and the modern state in the information age.
In the decades after the First World War, the birth certificate emerged as an important legal document. As the British government expanded its social programs, and co-operative associations began to offer more benefits, birth certificates became essential to the bureaucratic process of establishing both age and identity. In the 1920s and 1930s, birth certificates were required to gain access to elementary education, National Insurance, unemployment insurance, friendly society benefits, as well as state and private pensions. They were often necessary for employment purposes, particularly to initiate apprenticeships and to obtain jobs in industries with age restrictions. By the early twentieth century, an official birth certificate had become a vital document, which every time it was produced made the private circumstances of one’s birth public knowledge. For those born out of wedlock, producing these certificates was often stigmatizing at a time when illegitimacy remained for many a shameful family secret. When the government introduced an abbreviated birth certificate in 1947—that documented name, sex, and birth date without reference to parentage—they were responding to long-standing concerns both within and beyond the state bureaucracy about the tension inherent in keeping public records about people’s private lives.
Social theorists have tended to treat government record-keeping as part of a Foucauldian surveillance regime characteristic of the modern state that operates as a tool of social control by rendering the governed legible. But recent scholarship by historians working in diverse contexts has provided more nuanced readings of the multiple purposes and effects of the state documentation of individual persons. While recognizing that civil registration is part of processes of governmentality, these historians have also argued for the critical role that state records play in the recognition of individuals as subjects with rights. They have argued persuasively that individuals are often invested in the documentation process and frequently deploy it for their own ends. In the case of early twentieth-century Britain, citizens could no longer choose to operate outside the registration system. During this period, an ever-widening swathe of the British public became even more invested in civil registration, as it provided the mechanism for accessing benefits in an age that saw a rapid expansion of social services. Registration was nevertheless a dynamic process: some citizens petitioned the state, whereas others falsified their records, used loopholes in the law, or otherwise attempted to manipulate the system to obtain identity documents for themselves or their children that were not stigmatizing. The public’s use of these tactics led ultimately to a renegotiation between the British government and its people over what would remain private in the process of public record-keeping.
Britain’s long history of registration suggests that although the documentation of persons served the needs of the government, this tool of statecraft was also advantageous for a variety of British subjects from different social locations who participated in the process because it materially benefitted them to do so.

03 February 2014

Cash Reporting

A joint media release from the Australian Federal Police and Australian Customs and Border Protection Service reports that a 34-year-old Thai national was scheduled to appear in Parramatta Local Court over charges that she failed to declare over $100,000 in Australian currency as she attempted to leave Sydney International Airport.

Border Protection Service officers stopped the woman, an airline employee, for a baggage examination "after the Detector Dog Unit gave a positive indication" to the airline worker.
During the examination the woman verbally declared $8,000 in Australian currency found in her hand luggage. A subsequent examination of the woman's checked in baggage uncovered an additional eight envelopes with an estimated value of $100,000.
The matter was subsequently referred to the Australian Federal Police (AFP) and the woman was arrested and charged with:
  • One count of fail to report movements of physical currency out of Australia contrary to section 53(1)(a)(ii) of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth);
  • One count of dealing with money or other property reasonably being suspected of being proceeds of crime greater than $100,000 or more contrary to section 400.9(1) of the Criminal Code Act 1995 (Cth).
Thee offences carry maximum penalties of two years' imprisonment and/or a $85,000 fine, and three years' imprisonment and/or $30,600 fine respectively.
Travellers are reminded if carrying more than $10,000 in Australian currency or equivalent they must declare before departing Australia.
In Christian v Sawka [2012] WASCA 147 Pullen J states that
 On 12 March 2010, the appellant was convicted in the Magistrates Court at Perth of moving physical currency of not less than $10,000, namely $187,600, out of Australia without a report in respect to the said transfer having been given in accordance with s 53 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (Act) contrary to s 53(1) of the Act.
The appellant appealed against the conviction to the Supreme Court. The appeal was heard by Jenkins J and on 15 April 2011 her Honour made an order that the appeal be dismissed. This appeal is against that order of dismissal.
There is no prohibition on moving Australian currency (physical currency as defined in the Act) out of Australia. However, speaking in general terms it is an offence to move $10,000 or more out of Australia without a report being given to the appropriate authorities that this is to happen. The appellant entered the embarkation area of Perth Airport taking with him, in his carry on luggage and checked luggage, the sum referred to above. No report was given to Customs officers that he was doing so. There is a provision which, if it applied, deemed this to be a movement of physical currency out of Australia. The appellant submitted that a report was not possible because there was no 'approved' form on which to make a report and that absent an 'approved' form he committed no offence. This submission was rejected by the magistrate, rejected by Jenkins J and should be rejected in this court. ....
On the morning of 23 December 2008 the appellant, his wife and young child were at the Perth International Airport intending to fly to Bali. They had three suitcases, which they checked in, and the appellant had a carry-on bag. When in the embarkation area at the point where Customs officers examine passports, the appellant and his wife and child presented their passports, outgoing passenger cards and boarding passes. The Customs officer to whom they presented these documents for examination pointed out to the appellant and his wife that at least one of the outgoing passenger cards was incomplete as it did not have a tick in either the 'yes' or 'no' box alongside the question on the back of the outgoing passenger card which asked:
Are you taking out of Australia AUD $10,000 or more in Australian or foreign currency equivalent? If answered 'yes' you must complete an International Currency Transfer Report to present with this card.
The officer handed back the outgoing passenger card or cards and the appellant ticked the 'no' box. All three cards then showed the answer as 'no'. The officer then referred the travelling group to customs officer Raymond Fisher who escorted the appellant to an interview room. Mr Fisher told the appellant that he was going to carry out a search and asked if the appellant was carrying any cash. The appellant put his partially open backpack onto the bench. Mr Fisher completely opened it. The appellant pulled out a quantity of cash and said:
There's $30,000 there, 10 for myself, 10 for my son and 10 for my girlfriend, split between us so I don't need to declare it (ts 11/3/10 page 22).
The checked in luggage of the family was brought to where the appellant was being interviewed. The appellant said that the luggage belonged to him and that everything inside it was his. The luggage was then searched. One bag searched was a pink suitcase. Inside that suitcase Mr Fisher saw a layer of clothing. Underneath the layer of clothing he saw a towel which was wrapped around or was inside a plastic sleeve. Inside the plastic sleeve was a quantity of cash. Two other quantities of cash were located in the pink suitcase.
When the money was counted, it was determined that there was $144,250 in Australian currency inside the pink suitcase and $43,350 in Australian currency in the appellant's carry-on bag. The appellant said that he owned the money, that he had won it at the casino and that he intended to give it as gifts to friends and to poor children in Bali.

Telco Standard Form Contracts

'Looking at the Fine Print: Standard Form Contracts for Telecommunications Products and Consumer Protection Law in Australia' by Jeannie Marie Paterson and Jonathan Gadir in (2013) 37(1) The University of Western Australia Law Review 45 comments
Consumer contracts for telecommunications products are usually 'standard form contracts', which means that they have been prepared by providers and presented to consumers on a 'take it or leave it basis'. In an ideal world, this lack of an opportunity for consumers to negotiate the terms of their contracts would not necessarily result in one-sided contracts that are balanced against the interests of those consumers. Ideally, consumers would shop around and select between providers not only on the basis of the products offered by them, but also on the basis of the contract terms accompanying those products. The reality is that this almost never occurs.


'Destination death: A review of Australian legal regulation around international travel to end life' by Sarah Steele and David Worswick in (2013) 21(2) Journal of Law and Medicine 415 comments that
Travel for euthanasia or assisted suicide - so-called "death tourism" - is a controversial emerging subset of medical travel. Both anecdotal report and research indicate that individuals from around the world, including Australians, are travelling abroad to source medications or procedures that hasten death. This article surveys the laws that govern these markets, and asks - using the Australian framework as a case study - whether current criminal laws are themselves facilitating, even driving, this new form of medical travel. It is suggested that the complex, uncertain and often problematic nature of provisions around assisting death in Australia is making euthanasia travel increasingly desirable for those wishing to end their lives.


'Digital Citizenship and the Right to Identify in Australia' by Clare Sullivan in (2013) 41(3) Federal Law Review 557 argues that
Australia has announced the need to review the distribution of responsibility among individuals, businesses and governments, as a consequence of the move to digital citizenship. Australia has formally framed the issues in these terms and has opened dialogue between government and citizens regarding responsibilities for the use and protection of digital identity. This article examines digital citizenship in Australia and considers the implications for individuals, governments and the private sector of the requirement for an individual to use his/her digital identity for transactions. The features and functions of digital identity are examined, and the consequences for individuals, business and government of system failure are considered. The analysis shows that, while there are consequences for all, individuals are most affected.
Sullivan's 181 page ebook Digital identity: an emerging legal concept, a discussion of "digital identity in a transactional context under a national identity scheme" was noted here in 2011.


Charting the Course [PDF] - the International IP Index 2014 report from the Global Intellectual Property Center (GIPC) of the US Chamber of Commerce bravely claims to be
a rigorous statistical tool that business and policy makers can use to measure a country’s direction as they seek to chart a course to promoting an innovative and creative economy.
The destination is, of course, one that privileges members of the US Chamber of Commerce and the ranking, despite references to rigour, is problematical.

The authors claim that
It is also possible to use the GIPC Index as a measure of IP rights and correlate it to other areas of economic activity. While correlations fall into the field of descriptive statistics (i.e., they do not presume to suggest causality), they are nonetheless important and can provide a broad picture of the link between different areas of the legal and economic environment in countries.
The Index is based on thirty indicators in five categories -
Category 1: Patents, Related Rights, and Limitations
1. Patent term of protection
2. Patentability requirements
3. Patentability of computer-implemented inventions
4. Pharmaceutical-related patent enforcement and resolution mechanism
5. Legislative criteria and use of compulsory licensing of patented products and technologies
6. Patent term restoration for pharmaceutical products
7. Regulatory data protection term
Category 2: Copyrights, Related Rights, and Limitations 
8. Copyrights (and related rights) term of protection
9. Legal measures that provide necessary exclusive rights that prevent infringement of copyrights and related rights (including Web hosting, streaming, and linking)
10. Availability of frameworks that promote cooperative action against online piracy
11. Scope of limitations and exceptions to copyrights and related rights
12. Digital rights management legislation
13. Clear implementation of policies and guidelines requiring proprietary software used on government information and communication technology (ICT) systems to be licensed software 
Category 3: Trademarks, Related Rights, and Limitations 
14. Trademarks term of protection (renewal periods)
15. Non-discrimination/non-restrictions on the use of brands in packaging of different products
16. Ability of trademark owners to protect their trademarks: requisites for protection
17. Legal measures available that provide necessary exclusive rights to redress unauthorized uses of trademarks
18. Availability of frameworks that promote action against online sale of counterfeit goods 
Category 4: Trade Secrets and Market Access 
19. Protection of trade secrets
20. Barriers to market access
Category 5: Enforcement
21. Physical counterfeiting rates
22. Software piracy rates
23. Civil and procedural remedies
24. Pre-established damages and/or mechanisms for determining the amount of damages generated by infringement
25. Criminal standards including minimum imprisonment and minimum fines
26. Effective border measures 
Category 6: Membership and Ratification of International Treaties 
27. World Intellectual Property Organization (WIPO) Internet Treaties
28. Singapore Treaty on the Law of Trademarks
29. Patent Law Treaty
30. At least one free trade agreement with substantive and/or specific IP provisions such as chapters on IP and separate provisions on IP rights provided it was signed after World Trade Organization/TRIPS membership
The report states that
Australia’s overall GIPC Index score has decreased from 86% to 81% of the total available score, primarily in Category 1: Patents, Related Rights, and Limitations. Among other elements, recent actions by the Australian government have limited the ability of innovative pharmaceutical companies to seek adjudication of patent infringement by placing extra costs on companies with claims that are found to be invalid or non-infringing.
It goes on to comment that
Australia’s overall score has dropped from 87% of the total possible score (with a score of 21.63) in 2012 to 81% in 2014. This is mainly due to changes to the scoring methodology in 2014 that allow scores to better reflect existing weaknesses in Australia in pharmaceutical patent protection; the online copyright sphere, including an adequate notice and takedown mechanism; and enforcement of intellectual property rights, particularly in terms of civil remedies.
Patents, Related Rights, and Limitations
2. Patentability requirements: For a patent to be valid in Australia, it must be new, involve an inventive step, and have industrial applicability. Based on the IP Laws Amendment (Raising the Bar) Act of 2012, inventive step is assessed against the common general knowledge, considered either alone or together with additional prior art. The new law has also introduced greater flexibility concerning the requirements for opposing patents, for instance allowing for pre-grant opposition, but at the same time provides for the patentability of medical treatment methods.
4. Pharmaceutical-related patent enforcement and resolution mechanism: The Therapeutic Goods Act sets out a relatively transparent mechanism for adjudicating infringement issues as part of the market authorization process for generic or biosimilar medicines. Under the mechanism, the onus is on the applicants to notify patent holders of the application for registration or listing of the product, although the health regulator, the Therapeutic Goods Administration (TGA), also makes information about registrations publicly available. However, the mechanism may be deficient in cases where the applicant is not aware of relevant patents and, hence, does not notify the patent holder, particularly because there are known delays in the publishing of registration information by the TGA. As a result, patent holders may not discover infringement issues until aftermarket authorization has taken place in these cases. Recently, it has become possible for patent holders to be put at an additional disadvantage in the adjudication process: in the last few years, the Australian government has required (or threatened to require) patent holders to compensate generic companies and government agencies for delays in generic entry caused by court imposed injuctionsm, but has not taken a similar position in relation to losses experienced by innovator companies as a result of premature generic entry.
6. Patent term restoration for pharmaceutical products: A patent term restoration of five years is allowed under Australian patent law; hence, Australia receives a full score of 1. During 2012, an expert panel reviewed this provision. Its draft report, released in April 2013, contained various recommendations aimed at limiting patent term restoration, including reducing it, making it contingent on certain factors, and replacing it altogether with direct government subsidies for research and development. A closed final report has been submitted to the government. However, due to the recent change in government as a result of federal elections in September 2013, it is unclear at this stage if the new government will take action. If the term of extension were to be reduced, this would lower Australia’s score for this indicator in future editions of the Index.
Copyrights, Related Rights, and Limitations
11. Scope of limitations and exceptions to copyrights and related rights: The Copyright Act establishes a relatively categorical system of fair dealing and exceptions to copyright, which is applied consistently by the courts. Most recently, in National Rugby League Investments v. Singtel Optus (2012), the court upheld the requirement of non-commercial use for the time-shifting exception in Section 111 when it ruled against the recording of television broadcasts by commercial parties for watching at a later time in a domestic context. The Australian Law Reform Commission is currently conducting a review of exceptions to copyright in the digital environment, which is expected to be publicly released in February 2014.
Trademarks, Related Rights, and Limitations
15. Non-discrimination/non-restrictions on the use of brands in packaging of different products: The Tobacco Plain Packaging Act, which took effect in December 2012, restricts the use of trademarks on retail packaging of tobacco products, requiring them to be sold in non-descript packages. The new measure severely limits the ability of trademark GIPC international IP index owners to exploit their rights sufficiently, and has ignited a global debate on the use of plain packaging that threatens to affect trademark owners across different sectors and countries. In 2013, five countries, including Ukraine and Indonesia, brought action against Australia in the WTO on the basis that the law violates its WTO commitments, specifically under the Technical Barriers to Trade, TRIPS, and GATT agreements. WTO dispute panels and consultations are currently under way.
18. Availability of frameworks that promote action against the online sale of counterfeit goods: Action against an ISP whose services are used to violate trademark rights is not commonly available in Australia. This is because an infringement action under the Trademark Act requires explicit “use as a trademark,” and courts have been reluctant to apply this provision to cases of indirect or contributory infringement. There is the possibility of using the Australian Consumer Law to hold an ISP liable for infringing activity on their websites, but such action has only been brought in an indirect manner with a settlement occurring outside of the court (for instance, in Google v. Australian Competition and Consumer Commission [ACCC], 2013).
25. Criminal standards including minimum imprisonment and minimum fines: The Raising the Bar Act has increased the Copyright and Trade Marks Acts’ penalties to a maximum of five years imprisonment and 550 penalty units ($55,000 for individuals or $275,000 for companies). Application of the raised penalties is unknown at this time given the recent entry into force of the act. However, prior evidence suggests that Magistrates and Federal Courts often do not apply sufficient deterrent penalties, particularly in cases of digital piracy and illegal camcording.
Membership and Ratification of International Treaties
Australia receives a full score in this category, having signed and ratified all major international IP treaties as well as having concluded post-TRIPS FTAs with substantial IP provisions. Australia is also a negotiating party to the Trans-Pacific Partnership.