Marriage

'Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family' by Matthew O'Brien of Villanova University in 1(2) The British Journal of American Legal Studies (2012) argues - in my view unpersuasively - that Rawls would oppose same-sex marriage. It's an example - along with John Tomasi's Free Market Fairness (Princeton University Press, 2012) of the appropriation or misreading of Rawls by the US Right.

O'Brien comments that -

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same-sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s ideal of “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown). But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law. ... 

Liberals cannot reasonably expect everyone to endorse their personal views about sexual morality and the value of some intimate relationships, even when those views are accompanied by intense feelings of moral certainty. Therefore, liberals must limit their arguments for statutory and constitutional legislation about these matters by the specifically political values that “belong to the most reasonable understanding of the public political conception and its political values of justice and public reason.” The reasonable understanding of marriage by this standard is the understanding that happens to be the traditional one: between a man and a woman.

Crims

The Australian Institute of Criminology has released a Tipsheet on assault statistics.

Tipsheet No. 29 - Male and female assault offending in Australia - comments -

Assault is by far the most common type of violent crime in Australia. In 2010, there were 171,083 assaults compared with 17,757 sexual assaults, 14,582 robberies and 260 homicides (AIC 2011). [C]ompared with the rate of offending recorded in 1996–97, assault offending has increased substantially. 

Media commentary has recently focused on the increasing rate of female offending. [B]oth male and female assault offending increased between 1996–97 and 2009–10; the rate of female assault increased by 49 percent from 125 to 186 per 100,000 over this period. Despite male assault offending only increasing by 18 percent, it is important to note that males are still committing the majority of assaults and at more than four times the rate of females. 

In 2009–10, males also experienced a higher rate of assault victimisation compared with females. Males were victimised at a rate of 837 per 100,000 compared with 675 per 100,000 for females (AIC 2011). Regardless, assault victimisation was highest for both genders in the 15 to 24 year age group (1,760 per 100,000 for males and 1,559 per 100,000 for females; AIC 2011). However, the statistics indicate some differences in the profiles of male and female victims of assault. For example, males are more likely to be assaulted by a peer or a stranger, while women are more likely to be victimised by a family member in a domestic violence situation (AIC 2011).

OMG and pseudolegalism

Transhumanists - especially transhumanist academics - say the strangest things.

'Transcendent Engineering' by Giulio Prisco in (2011) 6(2) Journal of Personal Cyberconsciousness is promoted thus -

 Giulio applies his insightful transhumanist and engineering vision to the crossroad of science and religion in that future technologies may create a pathway to resurrecting the dead. 

 Resurrecting the dead? At least that's an advance on the Ervin Laszlo claim that the dead aren't really dead - they're just not "in a familiar form".

Prisco's article begins -

 In “Engineering Transcendence” I argued that science may someday develop the capability to resurrect the dead and build (and/or become) God(s), and proposed to base a “transhumanist religion” on this idea. 

I also argued that the ultra-rationalist, aseptic engineering language dear to most transhumanists does not seem able to have an emotional impact on the majority of other people. This means that “traditional” transhumanist ideas will remain confined to a very small minority of technically oriented nerds, and never make a difference to the rest of humanity. 

This is a pity as I think our ideas are beautiful and could give happiness, hope, a sense of wonder, purpose and peace of mind to a multitude of seekers. To do this, we must develop formulations and interpretations of transhumanism more emotionally appealing to persons with artistic and spiritual inclinations. 

The “transhumanist religion” is addressed to persons with spiritual sensibilities and needs. It is designed to appeal to their sensibilities, and fulfill their needs, while at the same time remaining firmly grounded in the scientific worldview. Instead of “their”, I should of course say “our”: I am a person with spiritual sensibilities and needs. At the same time I am a physicist and an engineer by training and by inclination (and my worldview is strictly materialist), with no room for the supernatural. 

I have been a member of the Extropy mailing list since the late 90s. Ever since, the Extropy list has been one of my main sources of intellectual stimulation and enjoyment. I was also interpreting transhumanism in a spiritual sense at that time, and remember thinking of Extropy as a beautiful and powerful new religion for the new millennium. I also remember my very first post to the Extropy list, it was about the possibility of a technological resurrection of the dead; it received some encouraging replies. 

He goes on to indicate the "cornerstones of the transcendent engineering 'religion'" -

• Mind uploading --- someday it will be possible to transfer entire personalities from their original biological brain to more durable and powerful engineered substrates.   
• Time-scanning --- someday it will be possible to acquire very detailed information from the past. Once time-scanning is available, we will be able to resurrect people from the past by “copying them to the future” via mind uploading. Note: time-scanning is not time travel, and it is free from the “paradoxes” of time travel. Time-scanning is just a form of archaeology --- uncovering the past by means of available evidence and records. Of course the very high definition form of time-scanning proposed here is orders of magnitude more powerful and sophisticated than archeology as we know it, but the concept is the same.  
• Synthetic realities --- someday it will be possible to build artificial realities inhabited by sentient life. Perhaps future humans will live in synthetic realities. Perhaps we will wake up in a synthetic reality after having been copied to the future. Or … perhaps we are already there. 
• Transcendent engineering offers not one, but two possibilities of resurrection: We may be copied to the future by our descendants by using time-scanning and mind uploading; or, we may already be living in a synthetic reality and the system admins may make a backup copy of interesting patterns every now and then. Hope in resurrection is, I believe, a necessary component of any effective alternative to traditional religions. 
• If we live in a synthetic reality, then in a certain sense, we cannot even rule out the supernatural, or miracles. The simulators, the system admins, cannot violate their laws of physics, but they can violate our laws of physics if they want. It seems that the supernatural, which we have kicked out of the back door of superstition, may come back through the main door of science. 

Last year I noted Hedley v Spivey, one of those pseudolegalism disputes that are both disquieting and bleakly amusing. They are interest to scholars of the sovereign citizen belief system.

In Hedley v Spivey [2012] WASCA 116 the Court states 

2 The appellant is a litigant in person. He is one of a number of self-represented litigants, in this and other State courts, who continue to rely on eccentric legal theories relating to the authority of State courts and State judicial officers. Ordinarily, their oral court submissions are made in the presence of their supporters. 

 

3 After a four-day trial in the Magistrates Court the appellant was convicted of obstructing a police officer in the execution of his duty and was sentenced to a conditional release order. 

 

4 The prosecution case at trial was that on 29 April 2010 the appellant and a female were in the back of court no 1 of the Kalgoorlie Magistrates Court which had been closed due to the disorderly behaviour of another person. The presiding magistrate had left the court. Various police and court security staff were attempting to gain control of, and to get people to leave, the court. The appellant intervened in the arrest of another person and was asked to step back. It was alleged that he shoved a senior constable in the chest with a briefcase, not particularly hard. The constable stepped forward to deal with the appellant and was punched by him. Another police officer came to the constable's assistance and the appellant resisted arrest, trying to grab the officer's firearm. 

 

5 The appellant appealed against his conviction in the Magistrates Court to a single judge of the Supreme Court under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). His grounds of appeal were that the magistrate was wrong in law and in fact:

• When he refused to sit under ch III of the Commonwealth of Australia Constitution 1901; 

• When he failed to swear his oath of allegiance to the Crown in accordance with the third schedule of the Commonwealth of Australia Constitution Act 1901; and 

• When he refused to state where in the Commonwealth of Australia Constitution 1901 his authority to sit in the court comes from without having sworn an oath of allegiance to the Crown.

6 It is difficult to provide a coherent summary of the appellant's contentions. A few excerpts from a document filed by the appellant in the single judge appeal entitled 'Presentation for Scott Hedley in Summation' (the summation) conveys something of their flavour: 

 

[T]he State Government of Western Australia is a company with the ABN 66 012 878 629, 

 

[B]oth the State Government of Western Australia and the Attorney Generals Office of Western Australia are subsidiary companies of the Commonwealth of Australia which is registered as a corporation with the US Securities and Exchanges Commission number 00 00 80 51 57, 

 

[T]here are no courts in Australia at this time that sit under and comply with Chapter III of the Constitution of Australia except the High Court of Australia, 

 

[N]o decision of any court in Australia is valid because there is no separation of powers between the governments and the courts, 

 

[N]o court in Australia can make rules of court and apply them with any force to stop the Sovereign people exercising their rights or will as would grant legislative powers to the courts contrary to s 71 of the Constitution of Australia ... ... 

 

[Officers] of the courts, Judges and Lawyers swear an oath to the State of Western Australia and the Law Society, BUT (not the constitutionally valid oath to her Majesty Queen Elizabeth II her heirs and successors), 

 

[I]n 2003 the Lion and Unicorn Royal Seal (the Royal Identifier) was replaced with the State of Western Australia Kangaroo's Emblem, 

 

[B]ecause the oath of allegiance was repealed from the Supreme Court Act of Western Australia no court including the District Court and the Magistrates Court meet the requirements of Chapter III of the Constitution of Australia ... 

 

7 On 24 November 2011, McKechnie J refused leave to appeal, correctly characterising the proposed grounds of appeal as vexatious and having no basis in law: Hedley v Spivey [2011] WASC 325 [19]. The grounds and variants thereof have been repeatedly held to be completely devoid of legal merit: Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260 (special leave refused: Glew v Shire of Greenough [2007] HCA Trans 520); Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; Glew v City of Greater Geraldton [2012] WASCA 94; Glew v Frank Jasper Pty Ltd [2012] WASCA 93; Krysiak v Hodgson [2009] WASCA 114; Glew v The Governor of Western Australia [2009] WASC 14; Glew v Frank Jasper Pty Ltd [2010] WASCA 87; O'Connell v The State of Western Australia [2012] WASCA 96 [92]. 

 

8 McKechnie J described the appellant's trial in the Magistrates Court as getting completely out of control with the appellant attempting to question the magistrate 'wanting his constitutional rights upheld' and the magistrate trying to maintain order [8]. See also [11]. 

 

9 The appellant filed an appeal to this court from the decision of McKechnie J. His grounds of appeal are in these terms: 

 

The coram Justice J McKechnie was wrong in law and fact: 

 

(a) When he failed to acknowledge and rule on all the inherited law; 

 

(b) The Imperial Acts and Letters Patent; 

 

(c) All the statutes; 

 

(d) All references to the Commonwealth of Australia Constitution Act 1900; and 

 

(e) All decisions of the High Court of Australia.

11 The submissions in support of the grounds are in the following terms:

I attended at the court on 24 November 2011 before Justice J McKechnie and made submissions into all the following issues: 

(a) He refused to acknowledge inherited law 

(b) He refused to accept Imperial Acts and Letters Patent 

(c) He refused to accept all statute law put to him, 

(d) He refused to abide by all references to the Commonwealth of Australia Constitution Act 1900 

(e) He ignored all decisions of the High Court of Australia put to him. ... 

12 The appellant's grounds of appeal and written submissions are unintelligible. They do not comply with the requirements in the Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4) and r 32(5).

Alphabet Soup

'The Alphabet Soup of Transborder Intellectual Property Enforcement' by Peter Yu in Drake Law Review Discourse (2012) 16-33 comments that

 In the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the "alphabet soup" of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN. 

Published in the inaugural issue of Drake Law Review Discourse, this short essay identifies six different concerns and challenges the Anti-Counterfeiting Trade Agreement (ACTA) poses to U.S. consumers, technology developers, and small and mid-sized firms. It then explores the ongoing negotiation of the Trans-Pacific Partnership Agreement (TPP) and explains why TPP is likely to be more dangerous than ACTA from a public interest standpoint. The essay concludes by highlighting the challenges recently raised by two new pieces of legislation, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).

Yu argues that -

In its current form, SOPA has at least five shortcomings. First, some of the proposed correction measures are highly disproportional to the wrong. As noted constitutional law scholar Laurence Tribe observes:

[Under SOPA, c]onceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials. 

Indeed, it is hard to explain why legitimate industries and Internet users should pay the price—economically or technologically—when the online community has some inevitable bad apples. 

Second, U.S. Customs has already actively seized piratical and counterfeiting websites, including those providing live streams of sporting events. The U.S. government has also initiated extradition proceedings against massive infringers from abroad, including most recently Kim Dotcom, the owner of Megaupload. Successful, past extradition efforts have even sent the Australian leader of the warez group DrinkOrDie, Hew Raymond Griffiths, to jail in Virginia for fifteen months. 

Third, SOPA fails to take into consideration the many new technological and business models that have become popular among Internet users. Consider YouTube, for example. Displaying billions of videos a day in more than fifty languages, his service is exciting not because it facilitates copyright infringement, but because it provides an attractive platform for Internet users to locate legitimate content unavailable on the market. 

Unfortunately, SOPA does not appreciate the social benefits brought about by these new websites and services. As the Center for Democracy and Technology acknowledges, “The new de facto duty to track and control user behavior [as required by the proposed legislation] would significantly chill innovation in social media and undermine social websites’ central role in fostering free expression.” 

Fourth, while SOPA would not “break the Internet” — as some have claimed in exaggeration — it does inflict some serious collateral damage. From erosion of free speech91 to creation of cybersecurity concerns, the statute’s benefits do not always compensate for its unintended harms. As the U.S. Public Policy Council of the Association for Computing Machinery points out in its analysis of SOPA:

[W]e do not believe that attempts to block or alter DNS [domain name system] or DNSSEC [DNS Security Extensions] look-ups will be particularly effective in stopping individuals who wish to connect to criminal sites outside the U.S., and will be less effective over time for all users. However, the costs and overhead associated with maintaining blocks and responding to orders will remain. 

Finally, like ACTA, SOPA could provide repressive governments with an internationally acceptable blueprint for developing Internet censorship regulations. The legislation “would... set the dangerous international precedent that governments seeking to block online content that violates domestic law should look to online communications platforms as points of control.” Should SOPA be adopted, it would indeed be hypocritical for the U.S. government to complain about similar laws enacted abroad. 

Given the bill’s many shortcomings, and the political complications massive Internet protests will create in an election year, it is no surprise that the Obama Administration was willing to distance itself from the controversial legislation. The weekend before the massive Internet service blackout in January 2012, the Administration released a carefully drafted statement declaring that “it will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” 

Immediately following the blackout, several congressional members also quickly withdrew their support for SOPA and PIPA. More importantly, Representative Lamar Smith and Senator Harry Reid announced the postponement of consideration of these bills, bowing to pressure from Internet companies and the user community. In retrospect, the developments concerning SOPA and PIPA may have shown us how to mobilize individuals and communities to protest against international agreements such as ACTA and TPP.

Yu concludes that -

For the past few years, policymakers, with strong support from the entertainment and pharmaceutical lobbies, have been cooking alphabet soup in the legislative cauldron. Large and small, homemade or otherwise, time-tested or experimental, a wide variety of alphabet pasta has been added to this soup. While the pasta may look fun and attractive, and it could even fill up one’s stomach, strong evidence suggests that the fully cooked soup will unlikely nourish society. 

Although it is undeniably important to address intellectual property piracy and counterfeiting, most of the proposed initiatives are badly designed. The development of ACTA, TPP, SOPA, and PIPA is unlikely to provide private rights holders with much-needed protection. Even worse, such development may harm the public interest by violating due process while at the same time stifling free speech, free press, and other civil liberties. 

It is high time policymakers start inquiring about what they are really cooking in that legislative cauldron. It is also important that they explore whether alternative ingredients can be used to prepare better enforcement soup. After all, legislators have made election promises to carefully deliberate over what gets served at our table. It is only fair that we hold them accountable for what they cook

Circ Wars

Another round in the 'circ wars' coming up, with release of the Tasmanian Law Reform Institute's final report [PDF] on non-therapeutic circumcision.

The report offers 14 recommendations -

1 The Institute supports the enactment of legislation to reform the law governing circumcision. 

2 The Institute recommends reform to provide a clear legislative basis for the legality of circumcision performed at the request of an adult or capable minor. 

3 The Institute recommends the enactment of a new and separate offence generally prohibiting the circumcision of incapable minors in Tasmania. The new legislation ought to create an exception for the performance of some well-established religious or ethnicity motivated circumcision on incapable minors. 

4 The Institute recommends the enactment of legislation to require joint parental authorisation for the circumcision of an incapable minor. 

5 The Institute recommends the enactment of a law to require court authorisation for a circumcision whenever parents disagree about the desirability of performing a circumcision. 

6 The Institute does not recommend the enactment of legislation mandating court authorisation for the circumcision of minors. 

7 The Institute recommends the enactment of a law to require that all circumcisers provide accurate information as to:

• the financial cost of the procedure; 

• the non-therapeutic nature of the operation; 

• the purpose and function of the foreskin; 

• the procedure itself; 

• the procedure’s effect on the functioning of the penis; 

• the risks of the procedure; 

• the nature and significance of the evidenced prophylactic benefits of circumcision in an Australian context; 

• the potential for children to grow up into adults who resent their circumcision (this may include a discussion of the common rationales and prevalence of circumcision); 

• the availability of the procedure in adulthood; and • the legality of the procedure.

8 The Institute recommends that health policy, community and industry leaders use non-legislative avenues of reform to improve the dissemination of accurate information on the known and potential effects and significance of circumcision. 

9 The Institute recommends the enactment of a criminal law that sets general principles against which to judge the acceptability of a circumciser’s practice. These principles should set minimum standards that all circumcisers of incapable minors must meet in the provision of their service. Parliament should give an existing health regulatory body the responsibility of formulating regulations to qualify the general standards set in statute. The Institute recommends the setting of standards as to matters such as:

• the pain relief provided; 

• the instruments used; 

• the skill of the person performing the operation; 

• the skill with which the procedure is performed; 

• the adequacy of the wound care and post-procedure monitoring. 

The standards set by statute and in regulations ought to reflect the minimum standards the community would expect circumcisers to meet at the time of the operation in the circumstance in which they are operating. In particular, the standards should ensure that no minor be put at a needlessly high risk of pain or complication from a circumcision. 

10 The Institute recommends further investigation into whether the law governing the use and sale of human tissue would benefit from reform. 

11 The Institute does not recommend reform to the law regulating the commercial aspects of a circumciser’s service. 

12 The Institute recommends the enactment of reform to create a uniform period in which individuals harmed by a circumcision as a minor may bring an action against their circumciser. This period should extend for an appropriate time after the harmed person has reached the age of majority. This new limitation period should be enacted in a provision in a new Circumcision Act. 

13 The Institute recommends the enactment of legislation to require circumcisers to transmit information relevant to actions that may be brought for harm they cause to a minor to an appropriate government authority. 

14 The Institute does not recommend the enactment of a no-fault compensation scheme for harm caused by a circumcision performed upon an incapable minor.

The report follows the more problematical 2007 ‘First Do No Harm’ the Liability of Medical Practitioners Performing Non- therapeutic Male Circumcision on Minors in Tasmania Discussion Paper by the Tasmanian Office of the Commissioner for Children and the Institute's 2009 Non-Therapeutic Male Circumcision issues paper. As I've elsewhere commented, non-therapeutic circumcision poses interesting legal philosophical and regulatory problems because of tensions between perceived injury to minors and respect for the deeply-held values of particular communities.

The Institute's 2009 issues paper asked eight questions - (

1. Do you think the criminal law relating to non-therapeutic circumcision requires clarification? 

2. Under what circumstances do you think a non-therapeutic circumcision should be lawful (under the criminal law)? 

3. Do you think the law relating to the authorisation of non-therapeutic circumcision requires clarification? 

4. Under what circumstances should a parent be able to legally authorise the circumcision of their child? 

5. Should the authorisation of a court, or some other form of independent body, be required to legally perform a circumcision in some, or in all, circumstances? 

6. Should the law clearly establish that medically qualified and non-medically qualified circumcisers have the same legal duties in the provision of their service? 

7. Should the law set specific duties for circumcisers in the provision of their service? 

8. Should there be a special limitation period for civil law actions brought by an adult for a circumcision performed on them as a minor?

It was released after consultation with members of Tasmania’s Jewish, Muslim and health communities. The paper

took no position on the appropriateness of non-therapeutic male circumcision from a medical, religious or ethical viewpoint. 

It found that there has not been significant legal action relating to, or legislative regulation of, male circumcision in Tasmania. The Institute also found that there is a dearth of current, thorough and reliable commentary on the application of the law to circumcision in Australia. The Institute concluded that uncertainties abound in the application of Tasmanian law to circumcision.

Copyright Reform

The ALRC has released its important and thoughtful discussion paper on Copyright and the Digital Economy.

The paper features 55 questions, with the ALRC seeking responses by 16 November.

The questions are as follows -

1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law: affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services; affects the introduction of new or innovative business models; imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material; or places Australia at a competitive disadvantage internationally. 

2. What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, help it to evaluate whether exceptions and statutory licences in the Copyright Act 1968 (Cth) are adequate and appropriate in the digital environment or new exceptions are desirable?  

3. What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law? 

4. Should the Copyright Act 1968 (Cth) be amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet? If so, how should such exceptions be framed? 

5. Is Australian copyright law impeding the development or delivery of cloud computing services? 

6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how? 

7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted? 

8. The format shifting exceptions in the Copyright Act 1968 (Cth) allow users to make copies of certain copyright material, in a new (eg, electronic) form, for their own private or domestic use. Should these exceptions be amended, and if so, how? For example, should the exceptions cover the copying of other types of copyright material, such as digital film content (digital-to-digital)? Should the four separate exceptions be replaced with a single format shifting exception, with common restrictions? 

9. The time shifting exception in s 111 of the Copyright Act 1968 (Cth) allows users to record copies of free-to-air broadcast material for their own private or domestic use, so they may watch or listen to the material at a more convenient time. Should this exception be amended, and if so, how? For example: should it matter who makes the recording, if the recording is only for private or domestic use; and should the exception apply to content made available using the internet or internet protocol television? 

10. Should the Copyright Act 1968 (Cth) be amended to clarify that making copies of copyright material for the purpose of back-up or data recovery does not infringe copyright, and if so, how? 

11. How are copyright materials being used for social, private or domestic purposes—for example, in social networking contexts? 

12. Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that such use of copyright materials does not constitute an infringement of copyright? If so, how should such an exception be framed? 

13. How should any exception for online use of copyright materials for social, private or domestic purposes be confined? For example, should the exception apply only to (a) non-commercial use; or (b) use that does not conflict with normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the owner of the copyright? 

14. How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression? 

15. Should the use of copyright materials in transformative uses be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformative use does not constitute an infringement of copyright? If so, how should such an exception be framed? 

16. How should transformative use be defined for the purposes of any exception? For example, should any use of a publicly available work in the creation of a new work be considered transformative? 

17. Should a transformative use exception apply only to: (a) non-commercial use; or (b) use that does not conflict with a normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the owner of the copyright? 

18. The Copyright Act 1968 (Cth) provides authors with three ‘moral rights’: a right of attribution; a right against false attribution; and a right of integrity. What amendments to provisions of the Act dealing with moral rights may be desirable to respond to new exceptions allowing transformative or collaborative uses of copyright material? 

19. What kinds of practices occurring in the digital environment are being impeded by the current libraries and archives exceptions? 

20. Is s 200AB of the Copyright Act 1968 (Cth) working adequately and appropriately for libraries and archives in Australia? If not, what are the problems with its current operation?   

21. Should the Copyright Act 1968 (Cth) be amended to allow greater digitisation and communication of works by public and cultural institutions? If so, what amendments are needed? 

22. What copyright issues may arise from the digitisation of Indigenous works by libraries and archives? 

23. How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia? 

24. Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed? 

25. Are uses of data and text mining tools being impeded by the Copyright Act 1968 (Cth)? What evidence, if any, is there of the value of data mining to the digital economy? 

26. Should the Copyright Act 1968 (Cth) be amended to provide for an exception for the use of copyright material for text, data mining and other analytical software? If so, how should this exception be framed? 

27. Are there any alternative solutions that could support the growth of text and data mining technologies and access to them? 

28. Is the statutory licensing scheme concerning the copying and communication of broadcasts by educational and other institutions in pt VA of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? For example, should the use of copyright material by educational institutions be more freely permitted in the digital environment? 

29. Is the statutory licensing scheme concerning the reproduction and communication of works and periodical articles by educational and other institutions in pt VB of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? 

30. Should any uses of copyright material now covered by the statutory licensing schemes in pts VA and VB of the Copyright Act 1968 (Cth) be instead covered by a free-use exception? For example, should a wider range of uses of internet material by educational institutions be covered by a free-use exception? Alternatively, should these schemes be extended, so that educational institutions pay licence fees for a wider range of uses of copyright material? 

31. Should the exceptions in the Copyright Act 1968 (Cth) concerning use of copyright material by educational institutions, including the statutory licensing schemes in pts VA and VB and the free-use exception in s 200AB, be otherwise amended in response to the digital environment, and if so, how? 

32. Is the statutory licensing scheme concerning the use of copyright material for the Crown in div 2 of pt VII of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? 

33. How does the Copyright Act 1968 (Cth) affect government obligations to comply with other regulatory requirements (such as disclosure laws)? 

34. Should there be an exception in the Copyright Act 1968 (Cth) to allow certain public uses of copyright material deposited or registered in accordance with statutory obligations under Commonwealth or state law, outside the operation of the statutory licence in s 183? 

35. Should the retransmission of free-to-air broadcasts continue to be allowed without the permission or remuneration of the broadcaster, and if so, in what circumstances? 

36 Should the statutory licensing scheme for the retransmission of free-to-air broadcasts apply in relation to retransmission over the internet, and if so, subject to what conditions—for example, in relation to geoblocking? 

37. Does the application of the statutory licensing scheme for the retransmission of free-to-air broadcasts to internet protocol television (IPTV) need to be clarified, and if so, how? 

38. Is this Inquiry the appropriate forum for considering these questions, which raise significant communications and competition policy issues? 

39. What implications for copyright law reform arise from recommendations of the Convergence Review? 

40. What opportunities does the digital economy present for improving the operation of statutory licensing systems and access to content? 

41. How can the Copyright Act 1968 (Cth) be amended to make the statutory licensing schemes operate more effectively in the digital environment—to better facilitate access to copyright material and to give rights holders fair remuneration? 

42. Should the Copyright Act 1968 (Cth) be amended to provide for any new statutory licensing schemes, and if so, how? 

43. Should any of the statutory licensing schemes be simplified or consolidated, perhaps in light of media convergence, and if so, how? Are any of the statutory licensing schemes no longer necessary because, for example, new technology enables rights holders to contract directly with users? 

44. Should any uses of copyright material now covered by a statutory licence instead be covered by a free-use exception? 

45. The Copyright Act 1968 (Cth) provides fair dealing exceptions for the purposes of: research or study; criticism or review; parody or satire; reporting news; and a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice. What problems, if any, are there with any of these fair dealing exceptions in the digital environment? 

46. How could the fair dealing exceptions be usefully simplified? 

47. Should the Copyright Act 1968 (Cth) provide for any other specific fair dealing exceptions? For example, should there be a fair dealing exception for the purpose of quotation, and if so, how should it apply? 

48. What problems, if any, are there with the operation of the other exceptions in the digital environment? If so, how should they be amended? 

49. Should any specific exceptions be removed from the Copyright Act 1968 (Cth)? 

50. Should any other specific exceptions be introduced to the Copyright Act 1968 (Cth)? 

51. How can the free-use exceptions in the Copyright Act 1968 (Cth) be simplified and better structured? 

52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else? 

53. Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions? 

54. Should agreements which purport to exclude or limit existing or any proposed new copyright exceptions be enforceable? 

55. Should the Copyright Act 1968 (Cth) be amended to prevent contracting out of copyright exceptions, and if so, which exceptions?

Breathwork

One of the zanier ideas embraced by some legal theorists is holotropic breathwork, with people supposedly 'connecting' with their 'past lives' or with the 'consciousness' of inanimate objects if they modify their breathing.

A hoary old cynic such as myself would note that if you stop breathing long enough you are dead, but that is apparently not a problem for enthusiasts who espouse the notion that dead are still alive, just "not in a familiar form" ... a notion that collides very uncomfortably with Australian evidence law. The ghost, rather than the butler, did it?

There is of course another breathwork, that practiced by some aficionados of S&M. 'Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent' [PDF] by Ingrid Olson in 4(1) JGLR (2012) 171-200 comments that -

The contentious practices of the sadomasochism (S/m) community provide a template for investigating consensual sexual practices that are often deemed excessive. A recent Supreme Court of Canada (SCOC) decision convicted the defendant in an assault case regarding sexual activity performed during a sex partner’s brief loss of consciousness due to consensual erotic asphyxiation. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant’s argument of prior consent. That is, despite prior consent for sexual activities the SCOC ruled on the legal parameters of sexual autonomy. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent, and subsequently, one’s sexual autonomy. Legal parameters on sexual practices often conflict with the contemporary community standards of sexuality. This article argues that the autonomy to consent to the sexual practices one desires should not be limited by consciousness. There is a new sexual movement underway, fuelled by the discourses of feminist, sexuality, and queer theorists that seek to shift anti-porn and sexual assault dialogues to a positive project of sexual empowerment and queer sexualities. It is a call for sexual agency, the autonomy to negotiate sexual boundaries and pursue one’s sexual desires. This sexual liberation movement desires a revaluation of sexual values, and the right to say ‘yes’. Sexual autonomy, borne from negotiation and enthusiastic consent, is a re-imagination of the term ‘asking for it’.

Olson states that -

In a May 27 2011 Supreme Court of Canada (SCOC) decision, the defendant in an assault case, R. v. J.A., was convicted regarding sexual activity performed during a sex partner‘s brief loss of physical consciousness. The brief loss of consciousness occurred during breath play, or erotic asphyxiation, which involved a tempered amount of manual choking9 during a consensual sadomasochism scenario. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant‘s argument of prior consent. That is, despite consent prior to specific sexual activities, the SCOC ruled on the legal parameters of sexual autonomy. 

The upheld conviction of the J.A. case in Canada comes almost two decades after a group of sadomasochism (S/m) practitioners in England had their convictions upheld on charges of assault causing bodily harm despite claims of consent. Both cases involved relationships of consensual S/m, that took place in private homes and did not require medical attention. Nor were the police summoned during or immediately following their S/m activities. Neither case received police attention until well after the events with which the defendants were charged. Our sexual relationships are perhaps our most intimate ones. I suggest that sexual intimacy is an integral part of human life; most persons desire some form of sexual relationship, regardless of their placement in the plethora of diverse demographic classifications. Human sexuality denotes physically intimate activities that often involve touching other persons, caressing, kissing, and engaging in various sexual practices for the purpose of sexual pleasure. Furthermore, this level of intimacy has the capacity to create an emotional or spiritual bond between persons. Sexual consent is constitutive of sexual agency. It is the negotiation of intentional sexual activity and should not be limited by the loss of physical consciousness where prior consent exists. 

This article addresses the most intimate level of safety: the negotiation, trust and consent between persons within the context of sexual relationships. Specifically, I address the linkage between consciousness and consent in the SCOC judgement in the R. v. J.A. decision and argue that sexual autonomy means that consent does not cease with loss of consciousness. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent and, subsequently, one‘s sexual autonomy. Legal parameters on sexual practices conflict with contemporary discourses of feminist and sexuality movements seeking to shift anti-pornography and sexual assault dialogues to a positive project of sexual empowerment. This article interrogates the restriction of sexual consent based on legal decisions of S/m practices and argues that the impact of these laws negatively effect sexual autonomy. 

There are three legal cases regarding sadomasochism that I examine here. They are, in both chronological order and their order of appearance in this article, the 1993, England, House of Lords R. v. Brown (sadomasochism) assault case. Second, the 2004 British Columbia (Canada) provincial court, R. v. Price (pornography) obscenity case. My explanation of the British Columbia R. v. Price case includes an abbreviated explanation of Canada‘s obscenity law, generally referred  to in Canada as the ‘Butler decision‘. This explanation is included because it is a vital part of the contemporary community standard of sexuality for which I argue. Third, the 2011, SCOC, R. v. J.A. (sadomasochism) assault case that centred on the issue of sexual activity following loss of consciousness. I examine these three cases together because they represent significant legal decisions on S/m practices in the contemporary secular, industrialised West. These cases also work together in highlighting the distinction of the public/ private divide and how legal decisions of S/m are influenced, or not, by contemporary S/m practices and the community standard of sexualities and tolerance. What I argue through these three separate legal decisions is that what the court understood and applied correctly in R. v. Price and what the courts failed to recognise in the Spanner and J.A. cases, is the contemporary community standard of tolerance regarding sexuality and the significance of autonomy and self-determination in adjudicating sexual consent.

'Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory' by Lucinda Vandervort in 23(2) Columbia Journal of Gender and Law (2012) meanwhile

examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.