Flabby

From Peter Hartcher's column in today's Melbourne Age -

the receding floods have left Julia Gillard and Labor newly exposed. A government has much greater freedom of action than an opposition. Gillard's first choice was to decide whether to respond boldly as a national leader or incrementally as a manager.

Bold leadership would have seized the floods as an opportunity to achieve big things, above and beyond the immediate contingency.

For example, Gillard might have declared that the floods across all the eastern states was not just a problem of recovery but an opportunity to rebuild better than ever.

She might have declared it as the moment for a new national productivity drive, a national economic rejuvenation. Drawing on examples such as the Great Chicago Fire of 1871 that allowed the creation of a thrusting modern metropolis and the invention of the skyscraper, she could have turned adversity into opportunity. But Gillard became Labor leader as the embodiment of the party's panicked retreat from ambition. Rudd, Gillard and Swan lost their nerve over emissions trading, immigration and the mining tax, and shrank Labor to present a smaller political target.

The Gillard government has now demonstrated that it is the same creature in the face of unexpected calamity as it was in the face of an election campaign. The flood response confirms that the Gillard government is cautious, timorous, and managerialist. This isn't necessarily bad, just small.

Small and disappointing

Fetishism and Flags on fire

Now that we're over Australia Day - the annual festival of beer, sunburn, burnouts and cheap nationalism - I'm reading 'A Fetishised Gift: The Legal Status of Flags' by Graeme Orr in (2010) 19(3) Griffith Law Review 504-526. Orr's lucid The Law of Politics: Elections, Parties and Money in Australia (Federation Press, 2010) is commended.

Orr comments that -

bridge the gap between cultural studiesʼ insight into nationalism and its symbolics, and the flagʼs legal status, to better understand the unique position occupied by national flags. In doing so it draws particularly on United States, Australian and New Zealand law and practice.

Flag ʻwavingʼ has become more prevalent in many liberal democracies. In such societies, flags occupy not a religious role, but a quiet and quotidian place in what Billig terms ʻbanal nationalismʼ. As a cipher for the whole, a particular flagʼs design is relatively unimportant; what lends it power is a mix of the gravity bestowed by its official designation and the easy commodification lent by a flagʼs easy reproducibility and portability. Unlike other state symbols such as the currency, coat of arms and honorifics, the state does not seek to monopolise the flagʼs use, let alone define its meaning.

Analysis of laws governing flag designation, observance and ʻdesecrationʼ reveals that the law accords the flag distinct status yet only equivocal protection. While the state may crave its citizensʼ fealty, a flag is not a symbol of some distant governmentality. Rather, it is gifted to ʻthe peopleʼ and relies for its relevance on its organic proliferation. As both object and image, people attribute a power to the flag - a power they recognise over themselves and others with whom they share a body politic. A key source of this fetishisation is its official, legal designation. Though it embodies no particular values, a flag is valued, even fetishised, by flag-wavers and flag-burners alike.

He goes on to argue that -

The legal act of designating an official flag – unlike the law governing other national symbols and currencies – is intended to encourage its proliferation, rather than create a monopoly. A flag is not an official symbol in the sense of representing a formal, even distant, governmentality. A flag is inevitably a cipher, and hence a site for contested values. As a result, although the state desires to encourage honour and respect for the flag, and hence the state’s symbolic self, the law is equivocal about punishing flagdestruction, let alone constraining flag use.

Ultimately, if the flag is to maintain its place as something gifted to a people, it relies for its relevance on its reproducibility and organic proliferation. It needs to be valued, indeed fetishised, by flag-wavers and flag-burners alike. Like most fetishes, flag fetishism bestows an arational power upon a common object. An otherwise empty, geodesic design on a piece of fabric is invested not just with the ability to symbolise, even bind, otherwise disparate people within a fractious liberal legal order: it comes to possess such emotional power that its mere sight inspires some to tears and others to jeers.

The article features a nuanced discussion of regulation and flag burning in Australia and New Zealand. I am reminded of Coleman v Kinbacher and Anor (Qld Police) [2003] QCA 575, one of the salient Australian flag burning judgments.

Chesterman J commented

On 1 October 2002 the applicant was convicted of four offences which arose out of an incident on the previous Australia Day in Townsville. The hearing of the charges occurred over five days in July and August 2002. The charges were: 

‘1.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN in a public place namely River Side Park behaved in a Disorderly manner. 

2.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN obstructed a Police Officer namely Andrew KINBACHER in the performance of the Officer’s duties. 

3.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN assaulted Anthony MARINOV with intent to Resist the lawful Arrest of the said Patrick John COLEMAN. 

4.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN wilfully and unlawfully destroyed one rear passenger side window and damaged one rear passenger side door the property of the Commissioner of the Police Service.’

[4] The Magistrate appears to have evaluated the evidence quite carefully. He made the following findings of fact: 

‘1.That a large number of people of all ages, including children, toddlers, teenagers, family groups and older people, attended the Australia Day celebrations at Riverside Park on 26th January, 2002. (Estimates given range from 1000 (Ms. McDermott) [sic] couple of thousand (Mr. Moriconi) to five thousand (Mr. Jackson) Ms. McDermott [sic] stated there were about a hundred people in her location, in sight and sound of the defendant. 

2.That the defendant planned for it to be an occasion upon which he would make a dramatic form of protest against the Australian government in relation to its attitude to the persons held in detention centres. 

3.That part of this protest was intended to include a burning of the Australian flag in public. 

4.That the defendant in preparation for this activity, placed a quantity of two-stroke petrol in a bottle, and brought with him a brown bed sheet that had been soaked in water, as a safety measure. 

5.That he also prior to coming to the park conducted a “trial burning” by cutting a small piece of the flag, and putting a light to same, although without the application of any petrol. 

6.That after some preliminary vocal protest directed at Mr. Howard, the Prime Minister, (who was not present) and to some extent at Mr. Mooney, the Mayor, (who was present) the defendant made a statement to the effect that he was going to burn the flag he had with him. 

7.That the defendant placed the flag upon the brown sheet that he had laid out on the ground, and sprinkled it with the petrol he brought with him. 

8.That at the time he did this, a number of members of the public were on and about the park area, in his vicinity, but none in close proximity to him; that the nearest person would have been not closer that [sic] 5 metres from him. 

9.That it was self-evident from the actions, and speech of the defendant, what he intended to do, and why he was in fact doing it. 

10.That his actions were responsible for altering the happy festive mood of some of the persons present, and created a significant feeling of ill-will, if not aggression, and disgust, by some members of the public towards the defendant. 

11.That some persons, at least, one of which was Helen McDermott [sic] felt some degree of concern, and unease as to precisely what the defendant was going to do after he lit the flag, some of that concern being because of the presence of a number of small children in the park that day; that Mrs. Bettenay was frightened and angry by the conduct of the defendant. 

12.That about this time, as it became apparent the defendant was making preparations to carry out his stated intentions, the two police officers approached the defendant; that some of the onlookers became more vocal at this time. 

13.That the defendant when he initially attempted to light the flag with the cigarette lighter, was unsuccessful, in that after a brief show of flame, the flame was extinguished. 

14.That this act caused some mirth and laughter to occur in a section of the onlookers. 

15.That officer Kinbacher spoke briefly to the defendant, and a number of times asking him, in effect, to “Please do not light the flag.” 

16.That the defendant ignored that request, stating it was not illegal to burn a flag, and continued to attempt to light the flag, and, after a number of attempts, was successful in doing so. 

17.That as the flag ignited, and proceeded to burn, small pieces of it dropped to the sheet below, one or more of such drops causing flames to more or less spontaneously occur, when the burning pieces made contact with the sheet; that such flames were extinguished by Officer Marinov, and to some extent by the defendant, by their stamping upon them. 

18.That the precise cause of that secondary fire has not been properly shown or proved to the court, although the presence of the petrol accelerant on either, or both, the flag itself, or upon the ground sheet appears to have been a causative factor. 19.That the brown sheet itself did not itself catch fire or substantially burn, with the possible exception of a small, circular hole, as clearly evident thereon; neither did the surrounding grass or vegetation catch fire. 

20.That as the defendant lit the flag, and as the pieces of the flag dropped to the sheet, causing the secondary fire, Officer Kinbacher placed his hands upon the defendant advising him to the effect: “you are under arrest for disorderly conduct.” 

21.Thereafter the defendant, restated, in effect, that it was not unlawful to burn a flag, and proceeded to resist the actions of Kinbacher and Marinov in a most determined an [sic] violent fashion, as detailed in the evidence presented to the Court.’ 

[5] The Magistrate summarised his views on the evidence and submissions relating to the charge of behaving in a disorderly manner in these terms: 

‘The circumstances existing on that day was a family day of entertainment, with a view to celebrating Australia Day. It was a day on which some persons born outside of Australia were officially accepted as Queensland and Australian citizens, in some form of official ceremony involving the Mayor of Townsville. I have personally examined the flag which has dimensions of approx 130cm x 83cm. and the wooden pole, with pieces end to end measures approx. 240cm. In lighting a cloth item of that size, with the use of petrol accelerant, in an open park area with numerous members of the public in the general vicinity, (if not right next to him) including a number of children, the defendant has taken some risk. The flames that occurred unexpectedly on the sheet are some proof of that. Applying an objective test, I accept and find that conduct to have been provocative, disruptive and disturbing, and, in the manner he went about it, could be described as “a substantial breach of decorum”. I find that behaviour to be disorderly.’ 

[6] Section 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (“VGO”) relevantly provides: ‘7. Obscene, abusive language etc. (1)Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear – (e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner; shall be liable to a penalty...’ 

[7] The applicant was arrested for disorderly conduct by Constable Kinbacher. The applicant’s resistance to his arrest was violent. He struck a police officer in the stomach with some force and struggled strenuously to escape apprehension. When finally overcome, handcuffed and put in a police car he kicked out one of its windows. 

[8] During the course of the trial particulars of the charge of behaving in a disorderly manner were asked for, and given. The particulars were: ‘At about 4.50 pm on 26 January 2002 at Riverside Park it will be alleged that whilst setting alight a flag the ensuring fire spread out of control to a ground sheet and surrounding vegetation causing fear, danger of injury and disruption to members of the public.’ The Magistrate found that there was no satisfactory evidence that any vegetation caught fire. There was evidence that the sheet which the applicant had taken with him to suppress any fire that might result from his intended incineration of the flag, itself caught fire. The Magistrate, however, held that the fact that the blanket caught fire was an accident within the meaning of s 23 of the Criminal Code so that the applicant was not criminally responsible for that act. Nevertheless he thought the applicant’s conduct was disorderly. 

[9] The applicant appealed against his convictions to the District Court which, having heard the submissions to the parties on 16 June 2003, dismissed the appeal on 30 July 2003. 

[10] The applicant’s appeal to the District Court identified fifteen separate grounds of appeal. Many of them are general complaints about the outcome. Some took issue with particular findings of fact which did not appear to be critical. There appear to have been two strands to the attack on the Magistrate’s judgment made in the District Court. The first was that the finding that the burning of the sheet was accidental meant that the charge of disorderly conduct as particularised had not been proved because an essential particular had not been established and/or because the remaining conduct could not be regarded as disorderly. As a consequence, it was said, the police officers present had no right to arrest the applicant because he had not engaged in disorderly conduct. He was therefore entitled to resist arrest and attempt to escape unlawful custody in the police car.  

[11] The second strand was that the applicant’s conduct was a ‘direct and forceful political protest’ which was constitutionally protected. 

[12] The function of particulars in a criminal trial was discussed in a decision of this court, The Queen v Trifyllis (CA No 358 of 1998, delivered 11 December 1998) in which R v Saffron (1989) 17 NSWLR 395 was referred to with approval and it was noticed that ‘the function of particulars is the same in criminal as in civil cases.’ In Saffron Hunt A-JA said (455): ‘The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded … the relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings …’ Reference was also made to what the High Court has said in Dare v Pulham (1982) 148 CLR 658 at 664: ‘… Where there is no departure during the trial from the pleaded cause of action, a misconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence …’ Part of that function is to give the opposing party a sufficiently clear statement of the case to allow him to meet it and to identify the issues for decision and thereby enable the relevance and admissibility of evidence to be determined. See Dare at 664. 

[13] The applicant’s point is that the burning of the ground sheet ‘was an integral part of the particulars’. That part of the case was not proved against him in the sense that he was found not to be criminally responsible for that event. The consequence is, so the applicant contends, that ‘an essential element’ of the offence charged against him was not proved so that he should have been acquitted. 

[14] The argument misunderstands the function of particulars and the nature of the charge brought against the applicant. If the facts proved by the prosecution establish beyond reasonable doubt all the elements of an offence then a conviction must follow even though the Crown may have furnished particulars not all of which were made out. If the facts proved against the applicant were sufficient in law to constitute disorderly conduct and they were within the description of the offence given by the particulars the applicant would have been rightly convicted. It would not matter that not all of the particularised actions were proved to have occurred or were acts for which the applicant was not criminally responsible. 

[15] This was the approach taken by the District Court judge on appeal from the Magistrate. His Honour said: ‘The particulars provided … though brief describe a single episode. … The events complained of would seem to have occurred within the space of seconds rather than minutes. It is transparently obvious that the events commenced with the igniting of the flag to which the contents of a flask of petrol had been previously applied. It may well be that the secondary fire to the ground sheet appeared to observers including the police officers as potentially more serious but the appellant could not have been in any doubt that part of the case against him involved the igniting of the flag itself. … In his own evidence he made reference to the secondary fire being unexpected and unforeseeable making particular reference to the wetness of the ground sheet which would seem to have raised a reasonable doubt in the mind of a Magistrate. In effect he was seeking to compartmentalise the episode to argue that the verdict was not able to be supported by the initial actions concerning which there was common ground. The appellant’s own evidence was that he had come along intending to burn the flag and had provided himself in advance with the wherewithal to do so. 

[16] The Magistrate had said: 

‘As to the above (particulars) it has been established, and (the applicant) admits that he lit the flag, and, I think it can be fairly stated, that it did spread, out of control to the ground sheet. There is no evidence of the fire spreading to any surrounding vegetation. There is some evidence to indicate some concern, fright, and anger, to some of the members of the public, particularly the females. Not, perhaps, because of any out of control fire, but due to what the defendant intended to do, i.e. light a fire. … Clearly then, some of the particulars have not been made out. This causes me some concern. On consideration, I am not satisfied that by itself is sufficient basis to dismiss the charge. … The particulars proved, and the findings made, must be considered, and examined, and a determination made as to whether the manner/behaviour could be considered to be disorderly. If this is found to be the case, then surely the offence would be made out.’ 

[17] This approach cannot be criticised. It is correct. 

[18] The judge understood the applicant to be contending that s 7(1)(e) of the VGO was unconstitutional and he dealt with what he understood to be the submission in support of that contention. He rejected it by reference to the remarks of Brennan CJ in Levy v The State of Victoria and Ors (1996-1997) 189 CLR 579 at 595: 

‘A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.’ 

The applicant disavows any constitutional challenge to s 7(1)(e). It does not form part of his application for leave to appeal to this court. His point seems rather to be that because he was engaged in what he regarded as a political protest his right to communicate his criticisms of Government migration policy were protected by the Constitution and his conduct could not therefore be disorderly. 

[19] The Magistrate said: 

‘It is really a balancing exercise that has to be performed – the unquestionable right of the defendant to make a peaceful protest, as opposed to the rights of other persons to enjoy a festive, family occasion, in a public park, free from disturbance, or concerns as to health and safety. … The crucial and significant facts … were … the actual decision … to burn the flag of that size, with the aid of an accelerant, at that particular time and place, that he did ignite, and the adverse affect his behaviour appeared to have on some of (the) public present at the time. I still find then, that the manner of the defendant could be fairly classified as disorderly. I consider the defendant has unfortunately made an error of judgment in choosing that time and place to make his particular protest.’ 

[20] The Magistrate considered this argument by reference to the relevant authorities, O’Connor v Police [1972] NZLR 379, in which Richmond J said ‘… The court has to apply an objective test to the conduct in question and determine as a matter of time, place and circumstances whether it was of a kind likely to cause serious annoyance or disturbance to some person or persons present’, Melser v Police [1967] NZLR 437 in which Napier J remarked ‘I have no doubt that these words ‘disorderly behaviour’ refer to any substantial breach of decorum which tends to disturb or interfere with the comfort of other people who may be in, or in the vicinity of, the street, or public place.’ and Watson v Trenerry (1998) 100 A Crim R 408 in which Angel J quoted the judgment of McCarthy J in Melser: ‘… The right to protest against political decisions, is now accepted as a fundamental human right in any modern society which deserves to be called democratic … the right of protest, in particular, if exercised without restraint, may interfere with other people’s rights of privacy and freedom from molestation. … Freedom of behaviour … is (not) absolute. The purposes of a democratic society are only made practicable by accepting some limitations on absolute individual freedoms. … This … is … elementary.’ 

[21] In particular the Magistrate noted the discussion in Watson concerning the relevance of the fact that the conduct in question which was alleged to be disorderly was, or was part of, a political protest. That clearly is a circumstance relevant to the decision whether the conduct complained of in a prosecution under s 7(1)(e) is disorderly as that term has been explained in the authorities. 

[22] Having referred to the relevant legal principle, and the relevance of the point just mentioned, the Magistrate concluded from his review of the evidence that the charge had been made out. 

[23] The applicant’s contention that his conduct could not have been disorderly because it was an expression of political opinion or participation in a criticism of Government debate cannot be accepted. His motive for his conduct and the characterisation of it as ‘political’ are both irrelevant. Acts which the law makes criminal do not cease to have that character by reason that they are the expression of political opinion. The point is too obvious to need explanation. Where it otherwise the murder of a Prime Minister whose policies one despised would be a constitutionally protected act of political debate. 

[24] The District Court judge took the same approach. Having reviewed the evidence and referred to some particular portions of it his Honour said: ‘I have canvassed some portions of the prosecution evidence concerning the presence of members of the public and children because it was against the backdrop of such evidence that the Magistrate … approached the question of whether the (applicant’s) actions in lighting the flag amounted to disorderly conduct. It was plainly open for the Magistrate to do so on the evidence. Far from being a finding which was unsupported … it seems … to have been quite compelling. I was provided with an extensive summary of the evidence … which … contains reference to a large volume of other evidence to similar effect. The concept of disorderly behaviour is in every case a matter of degree depending upon the relevant time, place and circumstances. The police have made no move to interfere with the (applicant) while he made anti-Government political statements. While the statements may have been unpalatable to some of the patrons of the event there is no suggestion that feelings had become so inflamed as to render likely a breach of the peace. Actually, there seems to have been some merriment at the failure of the (applicant) to light the flag at the first attempt. The objectionable feature of the conduct had very little to do with its political significance. It related to the lighting of a large piece of synthetic material to which petrol had been added in close proximity to larger numbers of people including young children. The circumstances were such as to arouse the apprehension of parents for the safety of their children. The Magistrate described the conduct of the (applicant) as “provocative, disruptive and disturbing, and … as a substantial breach of decorum”. However he went on to describe the crucial and significant facts as being the actual decision by the (applicant) to burn a flag of that size, with the aid of an accelerant at that particular time and place … and the adverse effect his behaviour appeared to have on some of the public present.’ 

[25] The applicant’s submissions as they relate to the conviction of a charge of behaving in a disorderly manner are without substance. They appear to misunderstand the law. It is apparent that the Magistrate paid careful attention to the evidence and applied to it the correct legal principles. In particular the Magistrate took account of the circumstance that the applicant was protesting against a policy of the Commonwealth Government. Having taken that circumstance into account, together with the other relevant circumstances, his Worship was convinced beyond reasonable doubt that the applicant’s behaviour was disorderly. There was no error in his Worship’s approach. The District Court judge reached the same conclusion having reviewed the evidence and having been satisfied that the correct legal principles had been identified and applied. 

[26] The applicant’s complaints that he was arrested unlawfully and was therefore entitled to resist and behaved reasonably in striking Constable Marinov and damaging the police car can be shortly disposed of. 

[27] The point taken here seems to be that: (a)The police officers considered the conduct disorderly only when the secondary fire commenced; (b)The applicant has been found not to be criminally responsible for the second fire; therefore (c)It follows, so the applicant submits, that he has been effectively acquitted of the act which was said to base the criminal liability and authorise the arrest; (d)Therefore, it is submitted by the applicant, that the arrest was unlawful and the applicant’s resistance, was lawful. 

[28] The submissions by the applicant fundamentally misunderstand the law. It is not the law that an arrest is only lawful if ultimately the person arrested is found to be guilty of the alleged offence which was the basis of the arrest. 

[29] Section 198 of the Police Powers and Responsibilities Act 2000 (Qld) provides: ‘198 Arrest without warrant (1)It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons - (a) to prevent the continuation or repetition of an offence or the commission of another offence; … (g) to preserve the safety or welfare of any person including the person arrested; …’ 

[30] That section: (a)Gives a power to arrest dependent upon a police officer forming the belief prescribed by the section; (b)The existence of the power to arrest is distinct and independent from any ultimate determination of guilt; (c)Provided the police officer holds the requisite belief and the power of arrest therefore arises, the arrest is lawful notwithstanding that there is ultimately an acquittal of the defendant of the offence for which he was arrested and the arrest is lawful even if the police officer’s belief was founded upon some mistake of fact or law. 

[31] The arresting officer Kinbacher had clearly formed the view: (a)That the applicant had committed the offence of disorderly conduct; (b) That he was going to repeat the offence; and that state of mind was reasonably held given the applicant’s conduct up to that point in time. 

[32] On that basis the arrest was lawful. It was not rendered unlawful by the Magistrate ultimately having a reasonable doubt as to the applicant’s criminal liability for the secondary fire. Indeed, even if he was acquitted of the charge of disorderly conduct the arrest was still lawful and he would be guilty of the other charges.  

[33] There is no reason to doubt the correctness of the applicant’s convictions or that the appeal to the District Court was properly dismissed. The application for leave to appeal raises no point of law for determination. I would refuse the application with costs to be assessed. 

Naming as claiming

My doctoral dissertation features a brief section on identity construction through law regarding naming, so I was pleased to encounter 'Naming Baby: The Constitutional Dimensions of Parental Naming Rights' (UC Davis Legal Studies Research Paper Series Research Paper No. 241, January 2011) by Carlton Larson.

In discussing European frameworks about what you can call the kid Larson notes that -

Many foreign jurisdictions are significantly more restrictive with respect to naming practices. Portugal, for example, requires parents to select a name from a governmentally approved list. It makes for fascinating reading, a relentless enforcement of 'Portuguese-ishness'. Not surprisingly, "Yuri", "Svetlana', "Johann", "Ethel", and "Andy" all fail to make the cut, but so do "Carmencita", "Catelina", and "Iglesias". In 2007, Venezuelan lawmakers proposed legislation that would limit parents to 100 approved names, perhaps because at least sixty Venezuelans bore the first name "Hitler". Spain specifically prohibits "extravagant" or "improper" names. French law permits officials to reject first names "contrary to the welfare of the child". One such name was "Fleur de Marie", rejected by French courts as too eccentric. Argentina prohibits "names signifying ideological or political tendencies, ridiculous or extravagant names, or those contrary to good morals". It has also rejected certain non-Spanish names, such as "Malcolm". Portugal prohibits names that "raise doubts about the sex of the registrant".

Carlson goes on to note historic and contemporary curiosa in US naming practice -

Another Massachusetts man named his son "Mene Mene Tekel Upharsin". Other names simply defy explanation, such as that of the Boston boy named "Preserved Fish". In 1814, a Connecticut minister named his daughter "Encyclopedia Britannia". Political names of all sorts have been especially popular. In the first half of the nineteenth century, the governor of South Carolina named his son "States Rights". Perhaps proving that some names really are destiny, "States Rights" graduated from Harvard Law School, but was killed in battle as a brigadier general in the Confederate Army. Equally redolent of a Civil-War history exam is the mid-nineteenth-century family who named their sons "Kansas Nebraska", "Lecompton Constitution", and "Emancipation Proclamation", while giving their daughters the apparently more feminine names of “Louisiana Purchase” and "Missouri Compromise". The outhouse was no doubt an important feature of daily life, but one wonders if it was truly necessary to commemorate it, as did one Tennessee family, by naming a girl 'Latrina". Other children were given such gargantuan tongue-twisters as "Trailing Arbutus Vines", "Loyal Lodge No. 296 Knights of Pythias Ponca City Oklahoma Territory", and "John Hodge Opera House Centennial Gargling Oil Samuel J. Tilden".

Resurrections

Last year I noted that Paul Terroni had been refused bail in NSW after faking his own death, seeking the associated insurance and obtaining a false passport (albeit an improvement on the NZ scammer who cashed in on his own 'death' but chose to renew his existing pasport!).

The SMH today reports that Terroni has been sentenced in a NSW District Court to a maximum 23 months in jail (13 months on a fraud charge and 15 months on a passport offence). Although his minimum term reportedly expired two weeks ago, Terroni remains in custody pending sentencing on driving charges that apparently triggered his scam.

He appears to have been charged with driving offences, evading punishment by moving to Ecuador and there ostensibly drowning in a river in 2007. What better day for a faux demise than 1 April. His uncle obtained the death certificate, with Terroni sending that to Australia and snaffling a false passport used for his return to Sydney in 2008. There was an attempt to claim over $283,000 in life insurance, with his mother reportedly alleged to have tried to obtain his superannuation using the bogus death certificate.

Haesler J yesterday sentenced Terroni for for trying to obtaining money by deception and possessing a foreign passport not issued to him, noting that "to fake one's own death in the face of relatively minor criminal charges makes no sense to me". Terroni's barrister argued that his made what "can only be described as a disastrous life choice".

Online Accessibility

The Canadian Government has announced that it will appeal the Federal Court of Canada decision in Jodhan v. Attorney General of Canada 2010 FC 1197, an online disability case.

At issue was whether the national government's internet services are accessible to people with visual impairments and whether inaccessibility infringes the right to equal benefit of government services under section 15 of the Canadian Charter of Rights & Freedoms.

The Court held that the federal government sites in Jodhan's 2007 claim were inaccessible and infringed the right under s. 15(1), an infringement that was not justified under Charter s 1. The Court ordered the government to bring its websites into compliance with the Charter within 15 months and to pay c$150,000 costs.

Jodhan is a blind computer consultant who was unable to create a job profile on the government's employment website or to electronically file her legally required census information without personal assistance. She argued that it is demeaning to be required to rely on assistance to access government information and use government sites. She also argued that being forced to rely on personal assistance to submit her census returns is a violation of her privacy, a similar arguement to claims in Australia regarding voting by blind people in the federal elections. Jodhan argued that the government could use readily available cost-effective technology that would meet its obligations under the Charter.

The government argued that the case was limited to three specific sites identified by Jodhan rather than all sites and suggested that even if its sites are inaccessible Jodhan could not establish discrimination because there were readily available alternative mechanisms for accessing and providing information, eg by phone,in person or mail. The government argued that s. 15 of the Charter does not guarantee visually disadvantaged Canadians a constitutional right to access federal sites and that its then online accessibility standards (the Common Look and Feel Standards 1.0) could not be found to breach s. 15 because they were ameliorative.

The Court disagreed, finding that the government had failed to fully implement its mandated accessibility standards (which constituted reasonable accommodation) and had not earmarked funds to achieve accessibility. There was a requirement under Charter s. 15(1) to take special measures to ensure that the disadvantaged enjoy equal access to government services. The Court was critical of the government’s failure to fully implement its own accessibility standards and the absence of a stated justification under s. 1 regarding that failure to accommodate (eg on the basis that accommodation would have constituted undue hardship).

The government is reported to be appealing on the basis that the judge exceeded his jurisdiction in finding a "system-wide failure" by the government in relation to its sites, indicating that only Jodhan was proved to be directly affected. The Court is also claimed to have "erred in law" by ordering the government to "remedy" the sites of 146 agencies, when only 106 agencies used the now-superseded guidelines that were held to provide inadequate accessibility.

The landmark decision in Australia remains Maguire v SOCOG, a ruling in 2000 by the then Human Rights & Equal Opportunity Commission (HREOC) under the Disability Discrimination Act 1992 (Cth).

Maguire claimed that SOCOG breached the legislation by refusing to format the Sydney Olympic Games site in a way that can be converted to braille or synthesized speech. SOCOG was fined $20,000 after ignoring the HREOC ruling.

Fierce bad rabbits

Given past comments in this blog regarding hyperbole from South Australian politicians and the beginnings of a moral panic about 'outlaw motorcycle gangs', marked by inept legal drafting and a denial of justice, I was pleased to read comments by the SA Police Commissioner suggesting that we look at realities rather than hype. That caution echoes comments by NSW DPP Cowdery and others.

The Adelaide Advertiser, famously denounced by the former SA Attorney General as a sewer, reports Commissioner Mal Hyde as commenting that 'bikies have cultivated an image of committing more crime than they actually do' -

there is a great deal of public concern that may not necessarily match the serious crime that they are committing

So much, as the Advertiser notes, for the Premier's 2007 claim that bikies were as bad as "terrorists" and that "the national counter-terrorism laws that have been appropriately modified and adopted could provide a nationally consistent approach to ban and control outlaw bikie gangs". (The former Attorney General was correspondingly emo about gamers.)

Hyde is reported as commenting that OMG members present two problems: the "serious" and "organised type" crime actually committed and, secondly, the "public face which most organised criminals don't have" which portrayed them as "above the law".

The challenge around the bikies is really two-fold. The first is that they commit serious crime and much of it is organised type crime, so you have to deal with that.

There are other organised crime groups as well, but the bikies have a public face which most organised criminals don't have and which is about their persona: how they use violence, how they dress and how they behave and how they like to be above the law.

The fact that there is serious concern about their behaviour is an issue in itself.

As the Advertiser notes, Hyde's

views appeared to contradict the repeated comments of the State Government, which had devoted far more attention to "terrorist" bikies than any other crime group and passed laws banning them from associating with each other.

Parts of the legislation have been deemed unconstitutional in the High Court.

Critics of the laws have accused the State Government of exaggerating the bikie crime problem to promote its law and order credentials. Mr Hyde also says in the book South Australia is "under-represented" on bikie crime compared with other states.

"In terms of bikies we actually don't have a major problem here in the sense that it exceeds the problem in other states and territories," he says.

"When you count the number of bikies, South Australia only has about 6 per cent of the national figure and we have 8 per cent of the population of Australia, so we are actually under-represented in bikies."

That is consistent with other authorities, with the Advertiser quoting the SA Commissioner for the Victims of Crime as critical of "rhetoric" used discussing in OMGs -

"There is a perception that people are worried about bikies and the crime they are committing but when you ask people what they are worried about, bikies don't feature," he said.

Surveys on fear of crime do not reveal broad public concern about organised crime. Some of the very public and violent incidents involving members of bikie gangs and others have fuelled fear of these people and drawn attention to their activities.

That fear, however, might be a consequence of the general worry fostered by signs of disorder and social incivilities.

In a subsequent ABC interview Premier Rann commented that -

There's absolutely no conflict between me and the police commissioner on this.

Those are the laws the police wanted, those are the laws we gave them, and the police commissioner is well aware and has briefed me about the extortions, the illegal importations of every range of gun - we've got bombs being manufactured.

Essentially, outlaw bikie gangs are about manufacturing and distributing, selling drugs to our kids.

Without deriding the seriousness of illicit drug consumption and distribution, one might question an image of OMG members parked on Harleys next to primary schools selling speed or other nastiness to minors.

Violence against the homeless

Reading the 70 page Rough Living: Surviving Violence and Homelessness [PDF] by Catherine Robinson, UTS, which -

reveals the ways in which intense chains of disadvantage incorporating homelessness are triggered by very early experiences of violence. Drawing on biographic interviews with 6 men and 6 women, the project bears witness not only to horrendous repeated experiences of physical and sexual violence but discusses what may be understood as related multi-dimensional vulnerability in areas such as physical and mental health, education, employment and social connectedness. A picture of the long-term cycles of violent victimisation and homelessness and their compounding traumatising effects are made clear and the importance of trauma-informed service delivery is outlined as a key way forward.

Robinson comments that -

Despite consistent reports of repeated experiences of violence occurring both before and whilst living homeless, it was observed that little current local documentation or wider policy acknowledgment of these exists. Disturbingly, reports about episodes of violence revealed that positive engagement with responding emergency and support services was rare and in many cases was never even sought, and that the opportunity for the follow-up of past traumatic events was even rarer. Most distressing, however, was the perception identified amongst victims that often brutal and repetitive victimisation was a 'normal' and accepted part of everyday life in the past and present, and an expected part of everyday life in the future.

She continues that -

violent victimisation still receives limited acknowledgment within policy development or academic research, despite the fact that existing studies, both in Australia and internationally, consistently document that people experiencing homelessness report a horrendous and disproportionate level of victimisation, including repeated experiences of childhood abuse, domestic and family violence, rape, physical and sexual assault, and robbery (see, for example, Buhrich, Hodder & Teesson 2000; Jasinski et al. 2005; Kipke et al. 1997; Kushel et al. 2003; Larney et al. 2009; North, Smith & Spitznagel 1994; Taylor & Sharpe 2008). It is clear that repeated experiences of violent victimisation are more likely for those whose homelessness is both prolonged and made complex by mental illness and substance abuse, and yet the wide-ranging and often enduring impacts of victimisation are rarely acknowledged and considered as part of 'housing plus' (Morrison 2009, p.1) responses to homelessness.

Given the small but nonetheless powerful body of available research evidence which concludes, 'a history of violent victimisation is associated with the initiation and prolongation of homelessness' (Kushel et al. 2003, p.2492), it is also deeply troubling that more commonly public policy and public opinion address homeless people as perpetrators of crime (Strategic Partners 1999, p.37). This is disturbing in a context in which one Australian study concluded simply that 'a lifetime experience of trauma is common among homeless people' (Buhrich, Hodder & Teesson 2000, p.966), with half of the female participants reporting rape and over half of male and female participants reporting physical assault (Buhrich, Hodder & Teesson 2000, p.965). Half of the homeless respondents in a more recent Australian study indicated they had been violently victimised at least once in the past year (Larney et al. 2009, p.348).

As Gaetz (2004, p. 447) concludes, however, 'the homeless in general are cast not as real or potential victims ... but rather, as criminal offenders' (see also Alder 1991, p.3; Strategic Partners 1999, pp.4–5) and as a result public policy falls short of fully confronting violent victimisation as a central theme in homelessness. As Morrison (2009, pp.2–3) points out in the Australian context, for example, it is a surprising oversight that neither homeless policy nor research yet adequately addresses sexual violence, which remains so pivotal in the lives of many homeless women in particular. It has also been argued that crime prevention frameworks implicitly underpin the current policy and practice shift towards early intervention strategies aimed at homeless young people in particular (Strategic Partners 1999, p.37). Here again, an explicit recognition of young homeless people’s likely experience of violent victimisation remains missing.

The silencing of homeless people’s experience of victimisation is ensured socially by beliefs that homeless people are somehow deserving of violence because of their risky lifestyles – most extremely demonstrated in the active perpetration of violent hate crimes against those homeless (NCH/NLCHP 2008; Wessler & Melnick 2005). It is also ensured institutionally by the exclusion of homeless people from national crime surveys which inform crime prevention policy and through the evolution of service sectors without resources and time to offer more than superficial care to homeless people. Further, the entrenched under-reporting of victimisation by homeless people suspicious of law enforcement and emergency health agencies only serves to further cyclically perpetuate these silences. It is also tragically ironic that in the public domain homeless people are understood as a threat, despite the fact that, internationally and in Australia, homeless people strikingly report random members of the community (Alder 1991, p. 6; Ballintyne 1999, p.15; Newburn & Rock 2005, p.27) and indeed law enforcement officers (Alder 1991, p.6; Zakrison, Hamel & Hwang 2004) as major perpetrators of violent crime against them. ...

[S]tudies confirm the findings of international research that violence is endemic to the experience of homelessness, particularly long-term iterative homelessness, is linked to poor mental health and substance abuse, and has cumulative and lasting impacts on victims’ continuing vulnerability to poor physical and mental health, to housing instability and to further violent victimisation. These findings are deeply worrying in the context in which it has been estimated that, at any one time, at least a quarter of homeless populations in countries such as Australia may be experiencing long-term iterative homelessness with associated high and complex needs (Reynolds 2007, pp.4–5).