the vanity of the security analyst

"unattractive figures whose writings betray their intellectual vanity" ... or merely the desire for attention?

From 'Protecting Sensitive Information: The Virtue of Self-Restraint' [PDF] by Dallas Boyd in (2011) 7 Homeland Security Affairs -

Changes in societal mores are probably more responsible than any technological development for the increased traffic in sensitive information. Irresponsible disclosures frequently occur without any social penalty for those who make them. This represents a dramatic shift from earlier generations, when cooperation with the government on security matters was more uniform. In one well-known example, American physicists refrained from publishing results on nuclear fission experiments during World War II for fear of assisting the Nazi bomb program. Even among provocateurs, there is precedent for self-restraint. Daniel Ellsberg’s name is synonymous with exposing government secrets, having leaked the Pentagon Papers. Yet Ellsberg conscientiously withheld four volumes regarding sensitive negotiations out of concern that they would disrupt the peace process. Such discretion can still be found, although it is uncommon enough to be conspicuous. In their analysis of radiological terrorism, for example, James Acton et al. stopped short of revealing a radiation immersion scenario that they claimed would “readily kill several hundreds and disrupt a large city.” As for the specifics of the plot, they wrote, “We will not describe it.” In an earlier episode, the government sought a voluntary embargo of the details of a 1984 incident in which religious cultists poisoned 751 people in Oregon with Salmonella. Fearing the attack would inspire copycats, officials asked the Journal of the American Medical Association to refrain from describing the method for twelve years; the editors agreed.

As an alternative to formal restrictions on communication, professional societies and influential figures should promote voluntary self-censorship as a civic duty. As this practice is already accepted among many scientists, it may be transferrable to members of other professions. As part of this effort, formal channels should be established in which citizens can alert the government to vulnerabilities and other sensitive information without exposing it to a wide audience. Concurrent with this campaign should be the stigmatization of those who recklessly disseminate sensitive information. This censure would be aided by the fact that many such people are unattractive figures whose writings betray their intellectual vanity. The public should be quick to furnish the opprobrium that presently escapes these individuals.

The need to influence the behavior of scientists is particularly acute. The Corson panel, while expressing little enthusiasm for restrictions on scientific communication, noted the existence of a category of research that merited "limited restrictions short of classification" on a largely voluntary basis. This category represented a "gray area" lying between research that can be discussed openly and that which the government has good cause to classify. While the need for voluntary self-censorship among scientists is already well recognized, there is still some resistance to the idea that scientific communication should ever be constrained. To wit, one of the researchers involved in the Australian mousepox experiment defended their publication on the grounds that "Anything scientifically interesting should be published." An effort must be made to temper this attitude and make clear that the pursuit of scientific knowledge does not absolve researchers of their social responsibility.

An understandable objection to self-censorship arises when one considers that huge quantities of classified information are being maliciously leaked under the auspices of WikiLeaks. It might seem curious to criticize well-meaning professionals for discussing unclassified information that is far less damaging than the genuine secrets being revealed. Yet the nihilism of this small group is not the standard against which one’s actions should be measured. Nor does it release conscientious citizens from their duty not to endanger the nation.

All security analysts are exempt from vanity, the professional imperative for self-promotion etc?

ALRC Discovery Report

The Australian Law Reform Commission has released its 380 page report on Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115).

The ALRC indicates that its recommendations -

are underpinned by eight principles or policy aims: the five 'Access to Justice Principles' proposed by the Access to Justice Taskforce, and three additional reform principles reflective of the particular context of this Inquiry:

1) Accessibility — justice initiatives should reduce the net complexity of the justice system.

2) Appropriateness — the justice system should be structured to create incentives to encourage people to resolve disputes at the most appropriate level.

3) Equity — the justice system should be fair and accessible for all, including those facing financial and other disadvantage and access should not be dependent on the capacity to afford private legal representation.

4) Efficiency — the justice system should deliver outcomes in the most efficient way possible, noting that the greatest efficiency can often be achieved without resorting to a formal dispute resolution process, including through preventing disputes; and the costs of formal dispute resolution and legal assistance mechanisms — to Government and to the user — should be proportionate to the issues in dispute.

5) Effectiveness — the interaction of the various elements of the justice system should be designed to deliver the best outcomes for users; and all elements of the justice system should be directed towards the prevention and resolution of disputes, delivering fair and appropriate outcomes, and maintaining and supporting the rule of law.

6) Proportionality — the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

7) Consistency — the civil justice system should be consistent in the application of laws and in practice.

8) Certainty — the civil justice system should provide as much clarity of expectations, both of parties and of the court, as the nature of particular cases allows.

The report offers "27 policy recommendations for improving the practical operation and effectiveness of discovery of documents in federal courts". The ALRC coments that -

The focus of the recommendations is principally on the Federal Court. The recommendations target a key theme in submissions and consultations that, to the extent that there is a problem in relation to discovery of documents in federal courts, it lies principally in the area of practice. Any uncertainty as to what is expected of parties and any inconsistency in case management by judges increases, the potential for litigation to become protracted and costs to balloon.

[The] recommendations are based on a model that is ‘facilitative’, emphasising the role of the judge in facilitating the resolution of the matter through active case management to offset what some argue is the problem of the adversarial nature of proceedings—or overly adversarial practice. Embracing a facilitative model continues the pattern of civil procedure reform identified in the ALRC’s Managing Justice inquiry and reinforced by trends since — for example through the introduction of s 37M of the Federal Court of Australia Act.

The ALRC considers that the most effective way to facilitate the resolution of disputes in the Federal Court is through robust case management. Such a model preserves the discretion of the judge while, at the same time, introducing greater clarity of expectations in relation to discovery. A key focus of the recommendations is on reinforcing the flexibility that Federal Court judges have in the case management of litigation so that, for example, any discovery regime can be tailored to suit the particular issues in each case. To achieve this, the ALRC makes a number of recommendations for reform of the Federal Court of Australia Act and the Federal Court Rules (Cth), supported by a suite of practice notes.

Practice notes, issued by the Chief Justice, are flexible and responsive tools for guiding practice in the Federal Court. Practice notes can set out clearly what the Court expects of practitioners, through which greater consistency of outcome may be achieved. Practice notes for participants are complemented by judicial education and training directed towards reinforcing judicial understanding of powers and encouraging their more consistent application. Recommendations for reform focus on the educative function of practice notes, to bring to the attention of parties—and to encourage the use of—the various ways in which discovery may be managed effectively and efficiently in proceedings. This provides guidance on the best practices of the parties, which may also be a valuable resource for judges in scrutinising applications and submissions. These reforms are also supported by recommendations for legislative amendments — to governing Acts and court rules — that provide statutory powers to facilitate the implementation of other reforms and to drive cultural change.

Vandiemenian Crims

The Tasmania Law Reform Institute has release a 108 page report on the Consolidation of Arrest Laws in Tasmania [PDF].

The report identifies powers of arrest currently available in Tasmania and the arrest laws that frame such powers, arguing that a proliferation of arrest powers in the state results in arrest laws that are unnecessarily complex, inconsistent and uncertain.

The report recommends consolidation, clarification and simplification of the powers. In particular it calls for the powers to be consolidated into one statute with elimination of the distinction between arrestable and non-arrestable offences, the introduction of protective provisions for vulnerable persons and changes regarding the use of force, entry to private premises, use of arrest warrants and private citizens’ power of arrest.

Specific recommendations are -

R1 That arrest powers contained in Tasmanian statutes be consolidated into one statute.

R2 That the consolidation of arrest laws should take the form of a new Act to be known as the Arrest Act.

R3 That the arrest powers in the Family Violence Act 2004 (Tas), s106L(1)(a) the Justices Act 1959 (Tas), s 55(2E) of the Police Offences Act 1935 (Tas), the Parliamentary Privilege Act 1858 (Tas) and Supreme Court Rules 2000 (Tas) be located in the proposed Arrest Act as exceptions to the general consolidating provisions in that Act.

R4 That the arrest powers contained in the Debtors Act 1870 (Tas) be reviewed with a view to their possible repeal.

R5 That -

1) The law of arrest relating to powers of arrest be reformed to eliminate the distinction between arrestable and non-arrestable offences;
2) The broadened power to arrest be circumscribed by:

(a) the statutorily specified requirement that an arrest is to be made only as a matter of last resort; and
b) provision that an arrest must not be made unless the police officer believes on reasonable grounds that specified limiting circumstances exist. In this regard the Institute recommends that the approach in Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) s 99 be adopted in preference to other models in operation in Australia;

3) The legislation establish a system of safeguards such as those provided in s 637(2) and (3) of the Police Powers & Responsibilities Act 2000 (Qld) to apply to a police officer’s exercise of the power to effect an arrest in any given case;
4) That this reform be accompanied by reform of the law relating to alternatives to arrest.

R6 That a consolidated general power of arrest without warrant be set down in the Arrest Act and that it provide that -

1) A police officer has a power to arrest without warrant a person whom he or she believes on reasonable grounds to have committed or be committing an offence.
2) This power should be subject to statutorily specified limiting circumstances as suggested in R5.

R7 That the proposed Arrest Act should include protective provisions for vulnerable persons. A vulnerable person should be defined as a person who falls into one or more of the following categories:

• Young persons;
• Persons who have impaired intellectual functioning;
• Persons who have impaired physical functioning;
• Aborigines and Torres Strait Islanders;
• Persons who are of non-English speaking background.

The protective provisions for vulnerable people should stipulate:

1) That the arresting officer must record in writing the reason for effecting an arrest rather than employing an alternative to arrest;
2) That a vulnerable person must be informed at the time of the arrest of his or her right to communicate with a friend, relative, parent/guardian, responsible person, legal practitioner and/or interpreter (relevant person) as is appropriate;
3) That when a vulnerable person is arrested there should be an obligation to inform a relevant person of the arrest:

(a) When a young person is arrested, there should be an obligation upon the police to inform a parent/guardian, responsible person or other relevant person of the arrest.
(b) When an Aborigine or Torres Strait Islander is arrested the Aboriginal Legal Service should be notified via the on-call Field Officer in accordance with Tasmania Police requirements (Aboriginal Strategic Plan).
(c) If a person with impaired intellectual or physical functioning is arrested, there should be an obligation upon police to notify a relevant person or responsible person as appropriate.

4) That the police must assist an arrestee who is a vulnerable person in communicating with a relevant person and the relevant person should be present during any interview.
5) That when a person from a non-English speaking background is arrested the police officer conducting the investigation must defer any questioning until an interpreter is present.

R8 That laws concerning how an arrest should be executed be located in legislation consolidating powers of arrest.

R9 That the consolidating legislation provide that -

1) It is the duty of a person arresting another, whether with or without warrant, to inform the other person, at the time of the arrest, of the process or warrant under which he or she is acting, or of the offence for which the other person is being arrested.
2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
3) This subsection does not apply to the arrest of the other person if -

(a) the condition or duties of the person making the arrest make it impracticable to perform this duty; or (b) the other person’s actions or condition make it impracticable for the person making the arrest to perform this duty.

(4) A failure to fulfill either of the aforesaid duties -

(a) Will make the arrest or the execution of the process or warrant unlawful; but (b) Shall not of itself deprive the person executing the process or warrant or making the arrest, or his or her assistants, of protection from criminal responsibility, but shall be relevant to the question whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.

R10 That the present Tasmanian Criminal Code provisions concerning the use of force in relation to arrests (ss 26, 30, 31 and 32) be repealed and reformed to enact the principle of proportionality as follows -

(1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2) Without limiting the operation of subsection (1), a person, in the course of arresting another person for an offence, may cause such damage to property that is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(3) Without limiting the operation of subsections (1) and (2), a police officer must not, in the course of arresting a person for an offence:

(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or
(b) if the person is attempting to escape arrest by fleeing – do such a thing unless: (i) the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and (ii) the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.

R11 That the recently legislated s 26A of the Criminal Code Act 1924 (Tas) be relocated to legislation consolidating the powers of arrest. The expression ‘premises’ should be defined as including any land, building, structure, motor vehicle, vessel or aircraft. The power of entry should be subject to additional safeguards such as those contained in the Police Powers & Responsibilities Act 2000 (Qld), the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) and Crimes Act 1914 (Cth) including -

1) A requirement that the police must have reasonable grounds for believing that the person to be arrested is on the premises;
2) A requirement that the police supply their details to the occupants and remain on the premises to effect the arrest for only such time as is reasonably necessary in the circumstances; and
3) That the police not exercise their powers of entry between the hours of 9.00 pm and 6.00 am unless they have reasonable grounds to believe that it would not be practicable to arrest the person at another time or it is necessary to do so in order to prevent the concealment, loss or destruction of evidence.

R12 That the proposed Arrest Act contain a codified model for the issuing and execution of arrest warrants in a framework similar to that which applies currently to search warrants. That the Act specify the criteria for the issue of the warrant, consistent with those provided for the making of an arrest without a warrant. Further, that the Act require that –

1) Information be provided on oath or affidavit stating the reasons for seeking the arrest warrant;
2) The judicial officer satisfy him or herself that the stated reasons establish reasonable grounds for issuing the warrant, or that there are other such grounds; and
3) The judicial officer endorses the affidavit stating the reasons on which she or he relies to issue the warrant.

R13 That the power of arrest pursuant to an arrest warrant currently set down in ss 21(2), (3) and (4) of the Criminal Code be relocated to the legislation consolidating powers of arrest.

R14 That all arrest powers without warrant of authorised persons be included in the Act consolidating arrest powers. Those powers should be made exercisable on the same grounds as those specified for police (along with the same restrictions) but be limited to the specified offences for which the authorised persons currently have the power to arrest. The offences and relevant authorised persons should be set out in a schedule to the consolidating Act.

R15 That government departments and agencies that empower authorised persons to arrest under legislation that they administer, begin to record and disclose publicly data on the number of arrests executed by their authorised officers and the outcome of those arrests.

R16 That private citizens’ powers of arrest be consolidated in legislation consolidating arrest powers. That private citizens’ powers of arrest be limited to persons found offending where the offence involves –

1) Substantial injury to the person of another;
2) Serious danger of such injury;
3) Loss of any property of the person so arresting, or of any person by whom he or she is authorised to effect the arrest; or loss of any property of which the person arresting has charge;
4) Serious injury to any property;
5) Injury to the property of a public authority; or
6) Escape from some person reasonably believed to have authority to arrest the escapee.

R17 That the duty of private citizens to make an arrest be incorporated into legislation consolidating arrest powers but be limited to the situation where a police officer calls upon them to provide assistance in the making of an arrest.

R18 That the powers of arrest granted to private citizens under the Bail Act 1994 (Tas), Second-hand Dealers & Pawnbrokers Act 1994 (Tas) and ss 27(10) and (11) of the Criminal Code Act 1924 (Tas) be repealed and incorporated into the new consolidating legislation.

R19 To promote further alternatives to arrest and to enhance arrest as a measure of last resort, a statutory regime, similar to that contained in the Police Powers & Responsibilities Act 2000 (Qld), ss 382-390, should be enacted enabling the police to issue on-the-spot attendance notices.

Superduper

Reading the Neuberger Committee report on Super-Injunctions, Anonymised Injunctions and Open Justice in the UK (aka the Super-injunctions Report) and the associated media conference transcript [PDF].

The Committee on Super-Injunctions was established in April 2010 to "examine well-publicised issues of concern to Parliament, the judiciary, the media, and the wider public", following RJW & SJW v The Guardian newspaper & Person or Persons Unknown (Claim no. HQ09) and Terry v Persons Unknown [2010] 1 FCR 659, in particular the perceived growth in the use and application of super-injunctions and the increasing frequency with which proceedings were being anonymised. Concerns had been raised with the British Parliament's Culture, Media & Sport Select Committee on Press Standards, Privacy & Libel and by the Lord Chancellor and Ministry of Justice officials with the senior judiciary.

The Committee's terms of reference were:

• To examine issues of practice and procedure concerning the use of interim injunctions, including super-injunctions and anonymised proceedings, and their impact on the principles of open justice bearing in mind section 12 of the Human Rights Act 1998;

• To provide a clear definition of the term super-injunction; and

• Where appropriate, to make proposals for reform, and particularly to make recommendations for any changes to the Civil Procedure Rules and Practice Directions.

The Committee's 112 page report makes recommendations on -

• The practice and procedure governing interim injunctions which restrict freedom of speech, including super-injunctions and anonymised injunctions;

• The use of specialist judges to determine applications for super-injunctions;

• Super-injunctions and the reporting of Parliamentary proceedings;

• The collection of data about super-injunctions, and anonymised injunctions, and the communication of information concerning the same to Parliament and the public.

Key findings in the report [PDF] are -

Open justice is, and has long been, a fundamental constitutional principle. It requires that all aspects of court proceedings should be open to, and freely discussed by, the public, and in particular, the media, and only permits oflimited exceptions, either those which are created by statute, or those which involve judicial discretion, to the extent that they are strictly necessary in the interests of justice.

Although confidential information has long been protected, a general right to respect for privacy was not recognised until 2000. Concerns have been expressed in some quarters about the way in which the law of privacy and confidentiality has developed since the introduction of the Human Rights Act 1998, particularly in interim injunction cases, given Parliament’s intention in passing section 12 of that Act, which was particularly concerned with maintaining a balance between privacy and freedom of expression. These concerns must be addressed either on a case-by-case basis by the courts or, at a more general level by Parliament.

A super-injunction is an interim injunction which restrains a person from:

(i) publishing information which concerns the applicant and is said to be confidential or private; and,
(ii) publicising or informing others of the existence of the order and the proceedings.

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

There has also been an increase in the number of cases which are anonymised. The law on anonymisation has been clarified in two recent Court of Appeal decisions. Confusion has arisen as many cases with privacy or anonymity aspects have been wrongly labelled as super-injunctions.

When anonymised orders are made, the court has and should wherever practicable provide a reasoned judgment for its decision.

The Committee has produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.

The Committee does not consider specific guidance on expedited appeals is necessary as such guidance already exists. It should however be revised and updated. It also recommends that training for judges who hear applications for injunctions which may impact on the principles of freedom of expression should continue.

The Ministry of Justice, with the assistance of HMCTS, should collect data about super-injunctions and anonymised injunctions, in relation to all privacy orders which derogate from the principles of freedom of expression.It is anticipated that the Ministry will implement this recommendation as soon as practicable.

The court has never asserted, and could not properly assert, power or authority to restrict Parliamentary debate or proceedings. The relationship between Parliament and the courts is predicated on mutual respect and confidence. The chapters in the Report which address questions relating to Parliamentary privilege and process have been disclosed to the Speaker of the House of Commons and to the Lord Speaker in the House of Lords. It is intended that any issues arising in the context of claims for injunctive relief on the basis of privacy will be discussed further with them,

Media reporting of what was said in Parliament is only protected if it is a summary of Hansard published in good faith. The extent, if any, to which other media reports of Parliamentary proceedings in breach of a court order would be protected is unclear.

Gene Patents

From the cogent Australian Parliamentary Library Bills Digest 107 of 2010–11 [PDF] by Roger Beckmann & Sharon Scully on the Patent Amendment (Human Genes and Biological Materials) Bill 2010 [No. 2], which seeks to ban gene patenting in Australia -

Uncertain effect of the proposed amendments

It is stated in the Explanatory Memorandum that:

The purpose of this Bill is to advance medical and scientific research and the diagnosis, treatment and cure of human illness and disease by enabling doctors, clinicians and medical and scientific researchers to gain free and unfettered access to biological materials, however made, that are identical or substantially identical to such materials as they exist in nature.

It is then explained that the legislation has been expanded to ensure that 'biological materials', '[including DNA, RNA, proteins, cells and fluids]', and 'including their components and derivatives, whether isolated or purified or not and however made, which are identical or substantially identical to such materials as they exist in nature' are expressly excluded from patentability to ensure that natural phenomena are not patentable inventions and thus subject to restricted use.

The application of the proposed amendments is uncertain and is likely to significantly expand the scope of subsection 18(2) of the Patents Act with respect to what would not be patentable inventions under the Act.

Should genes be excluded from patenting?

In the various inquiries mentioned above, those arguing that genes should not be patentable base their argument on several grounds. These grounds include that:

• the commercial exploitation of gene patents has the potential to:

– adversely affect matters such as incentives to conduct genetic and biotechnological research; as well as costs of and access to genetic testing, and
– reduce competition, and

• genes are discoveries not inventions and, consequently, are not patentable.

On the other hand, those arguing that genes should be patentable argue that:

• prohibiting gene patents may result in:

– creating a situation where Australia breaches its international law obligations – creating a situation incompatible with global obligations to harmonise patent laws
– adverse impacts on domestic and international investment in Australian genetic and biomedical research and development

• the distinction between discoveries and inventions is not clear cut, and
• there is insufficient empirical evidence to prove that gene patents adversely affect matters such as costs and access to genetic testing

The authors conclude -

The amendments proposed in the Senate Bill go much further than the longstanding debate as to whether to prohibit gene patents.

The proposal to exclude particular subject matter from the Patents Act would effectively extend to all naturally occurring biological materials per se, not simply human genes and human biological materials as the title of the Senate Bill suggests. As mentioned in several submissions, this would have the potential to affect a wider cross-section of biotechnological industries other than simply the medical industry.

Comments made by major interest groups in relation to the Senate Bill reflect evidence already provided at the various inquiries on the impacts of human gene patents, and in particular, those conducted by the ALRC and the Community Affairs References Committee discussed earlier. ....

Parliament may wish to keep in mind the arguments and counter-arguments for and against the Senate Bill as previously outlined. These are summarised as follows.

Arguments supporting the Senate Bill

Arguments for supporting the Senate Bill include:

• genes are discoveries not inventions — consequently, should not be patentable
• gene patents hinder genetic and biological research, and
• gene patents hinder access to genetic and biomedical testing and treatments.

Counter-arguments

Counter-arguments not supporting the Senate Bill include:

• under the current patent system in Australia, genetic and biological materials in their natural form are not patentable
• the existence of a patent over genetic or biological material does not constitute 'ownership' of such material
• concerns relating to gene patents, and the subject matter of patents generally, have already been extensively reviewed with a similar conclusion — there is insufficient empirical evidence of adverse effects resulting from gene patents to warrant prohibiting the patenting of genes and biological materials
• at this stage in any case, the nature and scope of patent applications relating to human genes have changed over time with changes in examination practices and, in the words of the ALRC "the time for taking this approach to the patenting of products and materials has long since passed"
• the proposed amendments go much further than simply excluding human genetic materials — the proposed wording could apply to all biological materials, thereby potentially affecting a broad range of industries, such as biotechnological and pharmaceutical industries; agricultural and animal protection industries; and bio-prospecting
• the proposed amendments may result in unintended adverse consequences to that broad range of industries, such as making it more difficult to patent novel genetically modified organisms in areas unconnected with human genes (for example agricultural plants)
• prohibiting the patenting of genes and biological materials may represent a significant departure from international practice with respect to genetic inventions in many developed countries and may adversely affect investment in the Australian biotechnology industry, and
• alternative methods — such as Crown use and compulsory licensing provisions, as well as a research use exemption and competition laws — have been proposed to address concerns regarding any monopoly arising from the existence of gene patents; and the development of and access to genetic and biomedical testing.

Some background to the Bill is here.

Lose the grey hair

In his forward to The Elephant in the Room: Age Discrimination in Employment [PDF], a 28 page study by Sol Encel, Penelope Nelson & Maria Stafford for the National Seniors Productive Ageing Centre, Peter Matwijiw comments that -

There is no doubt that older workers make a massive contribution to Australia’s economy. An earlier report released by the National Seniors Productive Ageing Centre, Still Putting In, showed that older workers contributed $59.6 billion a year to our economy. Equally, the country loses an astounding $10.8 billion a year by not making use of the skills and experience of older Australians who want to work1. Which prompts the question – why are we overlooking these older workers?

This report explores that question, and the results are not pretty. It finds that age discrimination is widespread - in recruitment, in promotion, and during times of retrenchment. It is evident in workplace harassment and pressure to retire, and in the unspoken but powerful assumption that the best workers are young workers.

Age discrimination, although widespread, is "the elephant in the room" – palpable but unmentionable. Australia loses incalculable talent and energy through age discrimination. Paradoxically, while the federal government is encouraging people to stay in the workforce well past the once-mandatory retirement ages of 60 or 65, many older workers find themselves rejected. There is a painful gap between laws against age discrimination, and the practice of age discrimination.

The thrust of this report is that awareness of age discrimination law leads often to nimble side-stepping – compliance with the letter rather than the spirit of the law. Recruitment advertisements no longer mention age but resort to euphemisms. Where complaints of age discrimination have been made, in many cases complainants received only an apology. Very few people refused a job were subsequently offered that job, and compensatory payments were usually low.

The effect of discrimination on older workers is often devastating. The case studies and personal accounts reveal the harrowing experience of older workers who have felt the weight of age discrimination and rejection. The policy implications emphasise that age discrimination cannot be ignored, even if it has become less overt, and more efforts are needed to overcome it.

The authors conclude by highlighting three policy implications -

Policy implication 1: Policy makers should examine the issue of ‘disguised discrimination’ and strengthen the relevant anti-discrimination legislation to reduce the likelihood of covert discrimination. Broader community education and awareness about the value of older workers is needed.

Australia is a prosperous country with a long tradition of a fair go and a broad consensus about fair treatment at work. Social inclusion policies emphasise participation for all. As the case studies in this report show, age discrimination has severe consequences for families and individuals. Despite the abolition of mandatory retirement ages, ideas about a social norm of the right age to retire lead to pressure on many older workers.

Australians are leading longer, healthier lives and are being urged by economists and politicians to work longer. Many are keen to do so, while others feel that after a lifetime of hard work they are entitled to an easier life.

The notion of an expected or “normal” age of retirement remains strong and leads to pressure on some older workers, especially when redundancies or restructures take place. In the report, a 2007 ABS survey of 3.9 million workers aged 45 and over is quoted, showing that most respondents hoped not to retire until they were at least 65. This cohort of Australians envisages an active lifestyle in their sixties, with 24% intending to retire at 70 or over. In time, this generation may overcome the community attitudes that have put some of our informants under pressure to leave the workforce around the age of 60.

Policy implication 2: Policies must allow individuals to make their own work or retirement choices in the light of their own health, aspirations, financial status and family situations.

It is evident from this study that age discrimination is alive and well in this country, and that it has devastating impacts on its victims. Legislation and administrative remedies are both necessary, but they alleviate only some of the problems. While Australia’s anti-discrimination laws are to be applauded, the number of conciliated cases reported by the Australian Human Rights Commission and the NSW Anti-Discrimination Board remains modest. To many people, the complaint process with its emphasis on written documents, legal representation, and referral to a higher body where conciliation fails, appears time-consuming, and potentially costly in terms of prolonged effort, emotional distress, legal fees and loss of reputation.

Policy implication 3: There is a need for greater awareness by employees of their rights to complain about age discrimination, and perhaps more information or advice for unions, professional bodies and the like to feel more confident in supporting such complaints by their members.

A campaign launched by the Fair Work Ombudsman in November 2010 is a good start in this direction. New educative material has been prepared to increase awareness among the more than three million working Australians aged over 45 that unlawful discrimination can include refusing to employ, promote or train someone because they are considered too old, or repeatedly offering training and promotion opportunities and overtime and penalty shifts to young staff first. The Fair Work Ombudsman Executive Director Michael Campbell said that every employee, regardless of how old they are, has the right to work without fear of discrimination

It is to be hoped that this campaign, together with initiatives that encourage the training and retention of older workers, will ensure greater progress in the elimination of age discrimination and the promotion of fairness at work. Only then will the elephant in the room cease to be a threat.

Will the subaltern please shut up

From 'Theorizing Resistance in Spivak's Deconstructive-Marxist Postcolonial Criticism' [PDF] by Ding Zhaoguo in 2(1) Studies in Literature & Language (2011) 19-25 -

Resistance has been an important subject of debates in recent postcolonial studies. This paper discusses the problematic of resistance in Gayatri Spivak’s deconstructive-Marxist postcolonial writings by focusing on her critical concepts "the subaltern" and "strategic essentialism". It concludes that though her deconstructive-Marxist postcolonial criticism is suspicious of valorizing the constitutive effect of the colonial discourse on colonized subjectivities and debilitating their power of initiating resistance, Spivak's problematization of the colonized subjective agency in terms of imperial epistemic violence and its heterogeneity and the intellectual's positioning helps interrogate the notion of identity as independent and self-sufficient consciousness, thus exposing the danger of reproducing the imperial power structures and re-silencing the subaltern involved in the process of postcolonial textual re-writing.

If Bhabha continuously interrogates the nature of colonial discourse and relationship in terms of its ambivalence and hybridity, it is Gayatri Spivak’s works that persistently problematize the constitution of the colonized subjective agency from various angles. She endeavors to theorize the possibility of counter-knowledge of the subaltern, such as those constructed by colonizers or scholars of the Subaltern Studies group. In her frequently quoted essay 'Can the Subaltern Speak?' Spivak engages with the effect of the "epistemic violence" imposed by colonialist and imperialist discourses on the colonized native subjectivity and the complex issue of the denial of subjectivity to the native subaltern women in nationalist histories. She examines the pitfalls and aporias into which even the radical Subaltern Studies group may fall through a deconstructive problematization of the category of "the subaltern" and a further analysis of the subaltern women who are ignored even by the revisionist histories. Meaning as "a junior ranking officer in the British army" and "of inferior rank" (OED), the term subaltern is used by Gramsci to refer to those social groups subjected to the hegemony of the ruling classes in his 'Notes on Italian History' (1934-5). Gramsci uses this term to cover a great variety of people, including peasants, workers and other groups having no access to hegemonic power. Thus the history of the subaltern is necessarily fragmented and episodic because they are always subjected to the hegemony of the ruling classes even in their rebellion. It is obvious that the subaltern has less access to cultural capital and social institutions to produce their own representation. According to Gramsci, only a permanent revolution of class adjustment can break this pattern of subordination of the subaltern class (Prison Notebooks 52-54). This term was adopted in the Subaltern Studies collective “as a name for the general attribute of subordination in South Asian society whether this is expressed in terms of class, caste, age, gender and office or in any other way” (Guha vii). This group argues that, the problem with the historiography of Indian nationalism lies in the fact that it is dominated by both colonialist elitism and bourgeois-nationalist elitism. Therefore, it defines its goal as examining the subaltern "as an objective assessment of the role of the elite and as a critique of elitist interpretations of that role" (Guha vii).

Zhaogou goes on - nothing like sectaries smacking the teacher - to conclude that -

Compared with the conception of resistance strategy as principally based upon a relatively autonomous and coherent notion of ethnic or national identity in the early anti-colonial writings, Spivak’s problematization of the constitution of colonized subjective agency in terms of imperial epistemic violence and its heterogeneity and the intellectual’s subjective position of power and desire helps interrogate the notion of identity as independent and self-sufficient consciousness, exposing the danger of reproducing the imperial power structures and re-silencing the subaltern involved in the process of postcolonial textual re-writing. However, the implication of this theorization and problematization consequently overemphasize the constitutive effect of the colonial discourse on colonial subjects, going so far as to disable their agency to initiate and sustain anti-colonial resistance and fail to get out of the captivating concept of discourse and power to imagine alternatives for effective resistance.

That'll teach her, won't it!