Contraband

A recurrent question in intellectual property tutorials is how many bogus items - brand-name clothes, perfume, CDs, bling - get into Australia.

It was thus interesting to see a media release from the Minister for Home Affairs boasting that Customs & Border Protection officers in Fremantle "stopped more than 10,000 counterfeit Tiffany and Company items from reaching the local market and being sold to unsuspecting consumers." Alas, no pictures of the very cute Customs dogs sniffing at the suspect containers and being rewarded with a treat for their excellent work.

The Minister commented that -

It is vital that we stop these goods at the border as they threaten the profitability and reputation of legitimate businesses and are potentially a risk to consumer safety.

Tiffany & Company is a prestigious company and Customs & Border Protection's work in stopping these counterfeit goods ensures there is no negative impact on the famous Tiffany brand.

Ministerial experience of the Holly Golightlys aside, the mechanics of the bust are more engaging.

It appears that the goods were originally referred to Customs and Border Protection on 3 August by the air freight forwarder who thought the consignment, made up of eight boxes, was "suspiciously labelled". The nature of that labelling or the origin of the boxes (China, Vietnam, south of the border down Mexico way?) has not been revealed.

A second shipment of one box was stopped and examined by Customs and Border Protection Compliance Assurance officers on 5 August 2009.

Both consignments were confirmed by Compliance Assurance officers as containing thousands of counterfeit Tiffany products along with associated packaging and care instructions. ("The attention to detail in the packaging makes it especially difficult for consumers to spot a fake.") The goods were formally seized and Tiffany was notified.

Some "10,778 counterfeit items (jewellery and packaging)" were seized, including 476 necklaces, 597 bracelets and 177 rings.

Subsequent investigation by Compliance Assurance officers has identified the supplier of the goods and a website used by the importers to "sell them on a commercial basis".

Holograms, hocus pocus and humbugs

Looking at another instance of recurrent re-invention in Victoria, where former plumber Peter de Angelis became Sioux Lakota Indian shaman Thunder Eagle and then Shamir Shalom. As the Age rather naughtily commented, he -

is not a shaman. He's not even American, native Indian or otherwise ...

and he's in trouble over alleged inappropriate sexual contact with up to six women who paid him several thousand dollars for healing services.

Victorian Health Services Commissioner (HSC) Beth Wilson appears to have been unimpressed, consistent with reporting by the Age that in one "ritual" last year - presumably as part of sessions that included "smoking ceremonies, chanting, drumming and tantric dance" - the ingenious Mr de Angelis (later known as Shamir Narra Avorham Djuwani Kiefa Israel Marlon Wati Dakota Jessie Malakhi-Zion-Angel-Shalom) pressed his body against a client to "absorb the toxins". Uh huh.

Things moved on to the Supreme Court, where Kaye J in Shalom v Health Services Commissioner [2009] VSC 514 found in favour of Wilson.

Shalom had sought an injunction to restrain the Commissioner from presenting the Victorian Parliament with a report naming him, pursuant to subsection 11(5) of the Health Services (Conciliation and Review) Act 1987 (Vic). He had also sought a declaration that his naming through that report is ultra vires.

Subsection 11(2) of the Act offers a 'naming & shaming' mechanism. It provides that the Commissioner may report in the public interest, a provision that enables community awareness of the practice of someone who is providing health services. A report made by the Commissioner under subsection 11(5) may name a person if –

the Commissioner believes on reasonable grounds that naming the person is reasonably necessary to prevent or lessen the risk of a serious threat to –
(i) the life, health, safety or welfare of any person; or
(ii) the health, safety or welfare of the public.

The Court noted that the plaintiff advertised as "Shaman Psychic Spiritualist, Healer, Counsellor" and described himself to his clients as "Shamir Zion Thunder Eagle", claiming to clients that "he was a North American Indian by birth, and that he was an American Indian Shaman Initiate".

The Commissioner alleged that de Angelis/Eagle/Shalom "had acted unreasonably in the manner of providing health services": he had "falsely represented himself as a North American Shaman healer" and in the course of treatment had "breached professional boundaries, by initiating sexual relationships". He responded through two fax messages, denying that he was a health service provider (ie the Commissioner lacked jurisdiction to investigate him). The Commissioner indicated that she did indeed have jurisdiction, because each of the complainants had consulted him for the purpose of healing, his advertisements described him as a "healer" and "counsellor", and his registered business name stated that the nature of his business was "Educative and Healing".

The draft report from her consequent investigation featured three recommendations: that he undergo a psychiatric assessment, only practise in the field of Shamanic Education and Healing in accordance with the Practice Code of Ethics developed by the Australian Shamanic Practitioners Association, and revise his advertising material so as to only make claims regarding his cultural background and qualifications which could be supported by documentary evidence.

Correspondence moved backwards and forwards. The Commissioner noted that his suggestion of a "short course" in Shamanism was inadequate to enable him to comply with the practice code. The plaintiff indicated that he intended to continue to practise in activities which he considered to be outside the Commissioner's jurisdiction, such as teaching meditation. The Commissioner advised that he should not practise at all until he was qualified, and that if he did not comply with the recommendations contained in the report he would be named. The Commissioner appears be underwhelmed by a comment from Mr Shalom that he was now acting as a "psychic detective" rather than a health service provider.

The Court found that Shalom was covered by the Act and that the Commissioner had not denied him natural justice. She is thus in a position to name him in Parliament. The proceedings were open to the public and we are now able to read about "karmic consciousness" and other treats. A more rigorous regime might quarantine "Shamanic Education and Healing" in the entertainment sector, along with tea-leaf reading and scrutiny of chicken entrails. (Reports that Shalom told one of the complainants that he loved her and had been her husband and wife in a past life, that he asked clients to drink their own urine as part of a purification ritual, offered to cure breast cancer by sucking out the "serpents" and danced naked in front of them are surely just made for late night television.)

The Age offers other examples of hocus pocus, including reports that the Australian Competition & Consumer Commission has formally warned vendors of a $400 vibration treatment claimed to cure swine flu with a 100% success rate (apparently even if the healer and client lived on opposite sides of the world). One practitioner offers "quantum bioenergetic balancing", apparently useful for treating cancer, depression, chronic fatigue, cerebral palsy and autism. No indication, alas, of whether it cures mange in cats, keeps the rabbits and possums away from your carrots or will get you a HD in the Legal Systems exam. The Age notes that -

While Ms Hocking does not claim to cure people, she said she had seen a wheelchair-bound multiple sclerosis sufferer walk again and a deaf three-year-old hear after receiving her treatment. "What we do is we put them in the environment where the system actually heals itself ... There's an elevation in the cellular vibration which causes the DNA to communicate more clearly" she said.

Another provider of what is advertised as "health services" deals with flu viruses. For a mere $400 a hologram is "placed in one's psyche" -

If the virus is already established Virus Buster will knock it out in 24 – 48 hrs. If you do not have a virus then the Virus Buster Session will provide you with optimal protection from most flu viruses. ...

All of our sessions can be achieved successfully and with 100% accuracy without needing to come to our Practice. We have the ability to energetically connect with your loved one ANYWHERE IN THE WORLD and fully transfer the vibrational energies of the session to them without them needing to come to us.

Quite.

What do you need to become a shaman? Ignoring paraphernalia such as knucklebone of rat, feather of crow, and crystals of chutzpah, there's the Shamanic Practice Code of Ethics.

In identifying training and qualification requirements it indicates that -

1. It is expected that shamanic practitioners will have received essential training in core practices through their participation in and graduation from an appropriate training regime;

2.Appropriate training regimes are as follows:

1. A formal training course at the diploma, advanced diploma, or degree level in shamanic practice, or

2. A traditional form of apprenticeship to a shaman in an indigenous culture or a form of cultural-spiritual practice which is socially recognised and legitimised [e.g., Condomble in Brazil, or Vodun in West Africa or Haiti] and of at least three years in duration and 1500 hours of training contact.

3. The training shall have covered a range of healing methods which includes one-on-one, group, family and community modalities over at least 100 hours of practical work.

4. The training must be adequately documented.

5. The training program must have covered, in detail, aspects of ethico-legal dimensions of practice, articulation with other healing professions, professional insurances, and relevant state and federal legislation which applies to helping professions.

I particularly like item 3 of the Association's professional conduct code -

Integrity: SP's should not offer services for which they are not qualified to deliver. They should act with honesty, without deception, and not use any form of persuasion or undue influence in securing and delivering services. The services which SP's deliver should be of a kind which preserve the dignity and autonomy of the client and in no way sully the privacy, physical, sexual, financial or psychological integrity of the client. Communication about SP sessions should be clear and concise and offer clients an adequate description of what SP sessions involve and especially with respect to details of techniques used, possible effects [focal and side effects] and professional fees.

That pretty much cuts out anything other than entertainment and general feelgood stuff.

Item 6 in the code specifies that

Parameters of competence: SP's may not diagnose medically or psychologically nor prescribe medications or supplements, nor shall they engage in physical manipulation of the body unless they are appropriately qualified and registered with relevant professional Associations [e.g., the Medical Board and Psychologists' Board in each state, Naturopathic Association, Physiotherapists Board]. SP's should be prepared to show clients copies of their qualifications and training if required by clients, as a matter of establishing bona fides. In this respect, SP's shall not make any misleading or dishonest statements concerning their training, qualifications and abilities to heal or effect therapeutic changes verbally or in writing.

Taken strictly, they can't say much at all ... but presumably that doesn't deter many consumers, especially those whose scepticism isn't associated with perusal of studies such as The Beauty of the Primitive: Shamanism and Western Imagination (Oxford: Oxford University Press 2007) by Andrei Znamenski, a sobering account of cultural appropriation and flimflam.

National memory

With marking out of the way I'm reading Australia and the Birth of the International Bill of Human Rights 1946-1966 (Federation Press, 2005) by Annemarie Devereaux, Sorry States: Apologies in International Politics (Cornell University Press 2008) and Prague in Danger: The Years of German Occupation, 1939-45: Memories and History, Terror and Resistance, Theater and Jazz, Film and Poetry, Politics and War (Farrar Straus Giroux, 2008).

National memory, just like memorialisation, is a strange thing.

It is interesting to see the emergence of questions about the announcement that the National Archives of Australia will shortly end its presence in Tasmania, the Northern Territory and South Australia - noted recently in this blog.

One analyst commented that those locations hold significant records of ongoing interest and in different formats, including substantial quantities of photographs. Examples include the Child Migrant collection and records relating to Maralinga (in Adelaide), material regarding the 'Bringing Them Home' inquiry and its results (in Darwin), and Australian Antarctic Division material (in Hobart). Presumably researchers - official and private - will need to pack their bags and visit Canberra or Sydney, as the NAA's enthusiasm for large-scale digitisation of images appears to have waned. Perhaps the Archives will simply shuttle records to and from the east coasts, although that will implicitly restrict access and will of course erode the cost-savings foreshadowed by the NAA executive.

One reader of this blog wondered whether closure means that the NAA will face costs in restoring the premises to the condition required by the terms of the leases. There are also questions about the cost of employee redundancy, relocation and any retraining. So far there has been no public statement about the "sympathetic institutions" (curious phrase) that might provide storage on behalf of the NAA. That provision would presumably be at rates comparable to commercial service providers, given that the state archives are under pressure from their masters to make cost savings and 'sweat' public sector assets.

A true partnership between the NAA and its state/territory counterparts (with shared facilities, a genuine commitment of funding and opportunities for the strengthening of professional skills) would arguably be a step forward in enhancing access by all Australians to the records of government. However, it would be a bold step, a reshaping of the archival landscape and of Commonwealth/State relationships, to be undertaken on a strategic rather than reactive basis.

It is unclear from the NAA statement that such a step is envisaged; instead the NAA may be simply preemptively pruning several of its limbs and trusting that the administrative version of 'tea & sympathy' will be forthcoming from its Minister or from its state peers.

DIY corporate surgery using a chainsaw sometimes backfires: the benefits aren't as great as expected and the smell of blood excites the unwholesome. It is easy to imagine the drier economic rationalists asking why the NAA shouldn't further cut costs by euthanasing its Perth and Brisbane branches, and why the reduction of "service costs" in Canberra cannot be taken further. (Presumably Brisbane will survive until after the NAA hosts the International Council of Archives congress in 2012.)

The NAA 2009-10 component of the portfolio Budget Statement indicates that -

A need for a new storage and preservation facility remains as pressing as ever because the Archives' current storage facilities are very close to full capacity. The Archives estimates that it will have to curtail transfers from agencies in approximately five years time if new storage capacity does not become available. In addition, the current storage facilities are ageing and costly to operate, especially in terms of their energy costs. Hence, one of the Archives' major priorities for the coming financial year will be to complete the business case for a new state of the art storage and preservation facility.

Beancounters or opportunists in search of easy short-term fixes might ask why not close the Victorian office and ship those holdings to a spanking new facility in a cowpaddock on the outskirts of Canberra?

Why not go further and adopt the 'Irish Model', ie merge the national library and national archives? (The minister responsible for that merger commented in the Irish legislature on 21 October that "Bodies such as the National Archives do not move with quite the same speed as greyhounds". Quite so, when they're missing a leg or two rather than merely being underfed and under-loved.)

Concerned citizens may wish to raise their concerns with the Director-General, with the NAA Advisory Council (a body sufficiently important, it seems, to justify memorialisation through publication of a book with the title A Necessary Safeguard) and with the Minister.

Torture and Old Sparky

The national Attorney-General today introduced the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009, following consultation with the States and Territories and reflecting the Commonwealth's external affairs power under s 51(xxix) of the Constitution [PDF].

The expectation is that the legislation will extend the current prohibition on capital punishment to Australia's state jurisdictions.

The proposed Act will create a specific Commonwealth offence of torture as part of the Commonwealth Criminal Code.

That new offence will operate concurrently with existing offences in state/territory laws. One example is s 320A of the Criminal Code 1899 (Qld), which provides that "a person who tortures another person commits a crime" (attracting a maximum penalty of 14 years imprisonment), with torture constituting "intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion" (pain or suffering including "physical, mental, psychological or emotional pain or suffering, whether temporary or permanent" but excluding what happens when you play football, visit the dentist or listen to some academics and politicians. Consent matters).

The Act will also amend the Death Penalty Abolition Act 1973 (Cth) [here] by extending application of the current prohibition on the death penalty to state laws, "to ensure the death penalty cannot be introduced anywhere in Australia".

Amending the 1973 Commonwealth statute to cover state laws will "safeguard Australia's ongoing compliance" with the Second Optional Protocol to the International Covenant on Civil & Political Rights (ICCPR), ie regarding abolition of capital punishment. (The text of that Protocol is here.) Introduction of the Bill in the national parliament coincides with reports that yet another person has been stoned to death in Somalia for the crime of adultery and that Iran has disposed of more enemies of the people. Having lectured a group of Chinese officials this morning I don't care to think of how many people have been shot in the PRC this week.

Torture

Australia has been a party to the United Nations Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment (CAT) since 1989. The Convention requires Australia to ensure that all acts of torture are offences under domestic criminal law.

The Convention defines torture as any act by which severe pain or suffering is intentionally inflicted upon a person by a public official for certain specified purposes, such as obtaining information or a confession from a person. (A sentence that involves being locked in a very hot cell with only a slop bucket and a beefy rapist who suffers from 'poor anger management' thus isn't torture, although it might be a form of hell for the inmate.)

The Crimes (Torture) Act 1988 (Cth) [here] currently criminalises acts of torture committed outside Australia, only when committed by Australian citizens or other persons who are subsequently present in Australia. Acts of torture committed anywhere in the world during the course of an armed conflict or as a crime against humanity are currently criminalised under the Criminal Code Act 1995 (Cth).

In previous periodic reports to the UN Committee Against Torture, Australia has stated that it meets its obligations on the basis that acts falling within the Convention's definition of torture are offences under state/territory criminal laws. Those acts include infliction of bodily harm, murder, manslaughter, assault and other offences against the person. The Committee Against Torture has criticised nations that have not enacted torture as a specific criminal offence, and has called on nations to do so. In its May 2008 'Concluding Observations' on Australia the Committee recommended that Australia enact a specific offence of torture at the federal level. The Government - in seeking to "demonstrate [a] condemnation of torture in all circumstances" - has responded with legislation to enact a new offence of torture in the Criminal Code, which will criminalise acts of torture within and outside Australia.

The legislation will repeal the Crimes (Torture) Act 1988 (Cth), as the current statute would be redundant. Extraterritorial application is intended to reflect a key aim of the Convention, ie to end impunity for torture globally.

The offence is intended to operate concurrently with existing state/territory offences. In introducing the Bill the Government indicated that enactment of the new offence is not intended to exclude or limit the concurrent operation of any other Commonwealth law or state/territory law.

Capital Punishment

The ICCPR permits capital punishment for the 'most serious crimes'. Australia's adherence to the Second Optional Protocol involves further obligations, requiring the nation to "take all necessary measures" to abolish the death penalty within its jurisdiction and ensure that no one within its jurisdiction is subject to the death penalty.

The death penalty was abolished for Commonwealth and Territory offences in 1973 through the Death Penalty Abolition Act. Each state subsequently independently abolished the death penalty, with no hangings having taken place since the 1960s - the last being described in The Hanged Man (Melbourne: Scribe 2002) by Mike Richards. (Australia never acquired a taste for Old Sparky, one of Thomas Edison's favourite toys, or embraced the lethal injections in use in some US states.) There are no proposals by any state/territory Government to reinstate capital punishment but recent populism might reasonably lead civil libertarians to worry that a desperate government might reach for capital punishment to save its own skin.

The Attorney-General commented that

Introducing a specific Commonwealth offence of torture will more clearly fulfil Australia's obligations under the United Nations Convention Against Torture to ban all acts of torture, wherever they occur.

The purpose of the legislation is to extend the application of the current prohibition on the death penalty to State laws. This will ensure that the death penalty cannot be reintroduced anywhere in Australia in the future.

The amendments emphasise Australia's commitment to our obligations under the Second Optional Protocol to the International Covenant on Civil & Political Rights, and ensure that Australia continues to comply with those obligations. Such a comprehensive rejection of capital punishment will also demonstrate Australia's commitment to the worldwide abolitionist movement, and complement Australia's international lobbying efforts against the death penalty.

Marriage

Two perspectives this afternoon on marriage and death.

The UK Independent reports ('Till death us do not part: French woman marries dead fiancé') that Magali Jaskiewicz has married her dead fiancé.

The dead man, father of her two daughters, was killed in a road accident two days after the couple informed the town hall that they planned to become man and wife. That was almost a year ago. Under article 171 of the French civil code it is possible for a bride or groom to marry a dead fiancé, with permission from the French President after providing clear evidence that the people planned to marry and were interrupted by the grim reaper.

The Article dates from December 1959, after De Gaulle was inspired to change the law to enable Irène Jodard to marry deceased fiancée André Capra, a victim of the Malpasset dam disaster. It specifies that -

The President of the Republic may, for grave reasons [no pun in the original], authorise the celebration of the marriage where one of the future spouses is dead after the completion of the official formalities indicating unequivocally his or her consent.

In this case, the effects of the marriage date back to the day preceding that of the death of the spouse.

However, this marriage may not involve any right of intestate succession to the benefit of the survivor and no matrimonial regime is considered to have existed between the spouses.

I haven't yet checked for an exegesis of the Article, which presumably gives the surviving partner some consolation and confers the father's name on the offspring.

The Independent delivers the expected bathos -

The bride wore white but, as the mayor sadly pointed out, she was a widow before she left the town hall. ...

"She left the town hall a widow but she had taken her loved one's name," Mr Caput said. ... "It is a real love story. When the gendarmes brought her the decree signed by the President, she came straight to see me. She said, 'These are my first tears of joy since Jonathan died'."

[Jaskiewicz] dressed all in white, married Jonathan and became his official widow. During the ceremony, a large colour portrait of Jonathan was placed beside her on a wooden stand. ... The bride, relatives and friends and the couple's daughters, Doriane, three, and Kassandra, 18 months, then went to place flowers on the bride-groom's grave.

Supposedly there are around 20 such posthumous marriages in France each year, which on consideration are less bizarre than the retrospective conversion of dead ancestors practiced by devotees of the Church of Latter-Day Saints.

The last major media coverage appears to have been reporting of a 'provocation' by US performance artist Shishaldin, otherwise known for selling her DNA on eBay and running the New York City marathon dressed in salami, so much more original (for anyone who can't remember the Italian Futurists) than dressed as a salami.

'Lautréamont and the Haunting of Surrealism' by Shane McCorristine in 5 Studies across Disciplines in the Humanities and Social Sciences (2009) 31-49 reports that in 2004 Shishaldin

released a report to the media and appeared on British television claiming that she was attempting to marry the Isidor Ducasse aka the Comte de Lautréamont [author of Les Chants de Maldoror and interred since 1870] by invoking an obscure article of the French Civil Code which allows for the marriage between a living citizen and a dead fiancée. Shishaldin wrote a letter to President Jacques Chirac requesting that he authorise this posthumous engagement: En tant qu’artiste, je me sens compulsif pour faire un stand 'bold' à la défense du mariage en tant qu'une union qui ne peut pas être définie, une union des âmes et des spirites, la sorte d'union célébrée par fait d'art et de littérature ..., un mariage d’art et littérature.

Chirac was apparently not amused.

Coincidentally there has been a reference in the New York Times to the 1964 'von Linde' case, a posthumous dissolution of a US marriage that illustrates conceptualisation of marriage as something concerned with heterosexual activity.

In Estelle F Sophian v. Manfred Graf von Linde (10/27/64) the NY Supreme Court Appellate Division First Division upheld the lower court's decision in favour of Ms Sophian, who had sought posthumous annulment of a marriage between her niece and Mr von Linde. The husband, who died in 1968, is otherwise famous as a plastic surgeon who worked on Montgomery Clift's face and as a supporter of gay liberation prior to Stonewall.

The court notes that

The marriage took place on March 1, 1962. On March 11 the couple went on their honeymoon in Haiti. On March 14 the wife died there. The action is brought by an aunt of the deceased wife. No question of the capacity of the plaintiff to bring the suit is raised.

The Annulment was sought on the basis of fraudulent misrepresentations inducing von Linde's wife to enter into the marriage.

here were three causes of action, each based on representations of a different character. The first alleged that defendant misrepresented his age, origin and ancestry. The second alleged that he concealed the fact that he was a homosexual. And the third alleged that he misrepresented his intentions to have normal sexual relations with his wife. The [lower]court dismissed the second cause of action for failure of proof and submitted the other two causes of action to the jury. The latter found for the plaintiff on both causes of action.

The appellate court noted that -

As to the first cause of action, it was established beyond doubt that defendant's real name is Robert Dent and that he is a native of Birmingham, Alabama. He married under the name of Manfred Graf Von Linde, a name which he continues to use; and at the trial he claimed the protection of the Fifth Amendment as to all inquiries as to how he came to adopt it.

It commented that -

In this case the status of the parties, the bald-face fraud practiced for an obvious venal purpose on a woman peculiarly susceptible to this kind of allure, provided an issue as to the fairness of defendant's dealing. Its resolution by the jury is not in conflict with our law.

As for the third cause of action, there is, and there could be, no dispute that, if the defendant never intended to have normal sexual relations with his wife and either concealed or misrepresented this state of mind, it would constitute fraud material to the marriage contract. The objection here is as to the proof that defendant had such an intent. Proof of an intent rarely rises to a degree that absolutely precludes a finding to the contrary. The proof here was as to defendant's statements and conduct after the marriage. Here also the fact that the person whose testimony would be expected to shed the most light on the facts, namely, the wife, was dead, made the proof more difficult. But there was proof, and the greater part of defendant's argument is devoted not to its sufficiency but to its credibility. That was a matter for the jury, and we cannot say that their conclusion was against the weight of the evidence. ... The evidence presented in support of the third cause of action that the marriage between Lucille Rogers and the defendant was never consummated was based on the testimony of the Haitian chauffeur employed by the defendant relating to conversations he overheard by Lucille Rogers and the defendant while they were riding as passengers in the back seat of an automobile.

In discussing Dent/von Linde's sexuality, the court was more cautious, commenting that -

it is unnecessary to consider the appeal from the dismissal of the second cause of action. However, a brief statement of our views might be in order in the event that a retrial should ever become necessary. Dismissal was on the ground of failure of proof. The proof consisted of one act of homosexuality committed some 16 years prior to the marriage. There was also proof that the deceased wife had a very marked aversion to sexual deviation. The court concluded, rightly, we believe, that this single act was not proof of defendant's sexual character, nor was the proof of the wife's aversion sufficient to draw the inference that, had she known of this single act long antedating the marriage, she would not have accepted defendant's proposal. However, subsequent to the verdict plaintiff moved on the basis of newly discovered evidence for judgment on the second cause of action. The newly discovered evidence consisted of records of the United States Navy Department showing a long and continuous history of homosexuality. These records had been subpoenaed for the trial but were not made available by the Navy Department until after the verdict was rendered.

One Smell

The 3,105 page judgement by the NSW Supreme Court in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 (aka the 'One-Tel Case') is a depressing read.

Austin J found in favour of controversial entrepreneur Jodee Rich against ASIC, the national corporations regulator, in litigation that followed the demise of the One.Tel telecommunications group. That demise involved failure of One.Tel Ltd (a large Australian-listed company that had attracted major investment from the Murdoch and Packer families) and its local subsidiaries, accompanied by the collapse or on-sale of overseas subsidiaries. It was depicted in Paul Barry's Rich Kids (Sydney: Bantam 2002), which historian Bridget Griffen-Foley described as a tale of "breathtaking greed, self-aggrandisement, mismanagement, ineptitude and duplicity".

Following the collapse, seen by some as emblematic of the dot-com bubble, ASIC brought civil penalty proceedings for breach of the statutory duty of care of company directors and officers. The proceedings were initially brought by ASIC against three executive directors and the non-executive chairman of One.Tel. Action against joint managing director Bradley Keeling and non-executive Chair John Greaves was settled in 2003, with Keeling agreeing to a ten-year disqualification from acting as a director and liability to pay compensation of $92m and Greaves accepting a disqualification from being a director for four years and liability to pay compensation of $20m.

ASIC alleged that the defendants did not disclose the true financial position of the company to the board, and that they knew or should have known the true position.

Argument in court centred on whether ASIC had proved its case as to the true financial position in the first quarter of 2001. The judge concluded that -

ASIC has failed to prove its pleaded case against either of the defendants. Therefore judgment should be entered for Mr Rich and Mr Silbermann in the proceedings.

He indicated that -

ASIC's contentions have a superficial appeal, but time and again they were shown to be unpersuasive when the underlying financial detail was investigated. When Mr Carter's evidence was largely excluded, ASIC presented what it described, frequently, as a documentary case. Although there were many categories of documents, three categories were particularly significant, so much so that the defendants described them as the "three pillars" of ASIC's case (T 14952): management accounts, aged creditors reports and collection profile summaries. When those documents were scrutinised in detail, they were found to be, wholly or in part, too unreliable to form the basis for financial findings: the Australian fixed wire/service provider management accounts at 20.3, Australian aged creditors reports at 11.2.5, and collection profile summaries at 4.8.6. The difficulties encountered with those documents might have been overcome, wholly or in substantial part, if ASIC had brought forward witnesses to explain the documents and give evidence as to their status, witnesses such as Mr Holmes or Ms Nassif for the fixed wire/service provider management accounts and Australian aged creditors reports, and Mr Basman for the collection profile summaries. But that evidence was not forthcoming and so the unexplained problems with the documents added up to a serious flaw in ASIC's case. No evidentiary presumptions are needed for the court to get to that conclusion, but some are available as discussed in Ch 3.

To the extent that ASIC's case rested on other documents of less uncertain meaning, and on the evidence of its witnesses such as the UK witnesses, Ms Randall and Ms Ashley, the defendants were able to advance alternative plausible explanations for what had occurred, and ASIC failed to prove its case to the appropriate civil standard, having regard to the presence of those alternative explanations.

An additional problem with ASIC's case has been the extent to which it has strayed outside its pleading. The problem areas are identified in para 2.3.6. I have not expressly correlated the findings made in para 2.3.6 to the substantive discussion of the submissions found in the body of the judgment. However, in cases where I have considered a submission by ASIC in the body of the judgment and rejected it on its merits, and I have also found at 2.3.6 that the submission is impermissibly outside ASIC's pleading, my intention is that the submission is rejected on both the substantive ground and the pleading ground.

This judgment and the verdict to which it leads are the product of civil legal proceedings conducted in accordance with our adversary system. Under that system the issue for determination is whether the plaintiff has proven its pleaded allegations, by the evidence that is before the court. The question for determination is not the larger issue of how it happened that a rising corporate group supported by two well-resourced investors came to fail, in spectacular circumstances. The court has not been asked to determine, at large, who was to blame for the disaster, as amongst the defendants, other executives, non-executive directors, major shareholders and advisers. The proceedings are not a Royal Commission. Notwithstanding the huge amount of effort that has been devoted to these proceedings by the parties and their advisers, and by the court, many questions about the failure of One.Tel are left unanswered. That was inevitable, given the nature of the proceedings and the questions placed before the court for resolution.

One of the unanswered questions is whether One.Tel would have survived if, in May 2001, PBL/CPH and News had maintained their support for the company and implemented their plan to underwrite a deeply discounted rights issue to raise $132 million. The tendered evidence has led me to reject ASIC's figures as to the financial circumstances of One.Tel at the end of February, March and April 2001, and to prefer the figures set out in Chs 11, 13 and 15 respectively. If those figures are right, a fundraising of $132 million accompanied by continuing support by the major shareholders would probably have been enough to address the company's cash requirement until November 2001, by which time, according to the business plans, the company's businesses would have been generating more healthy Group cash flow. The withdrawal of that support, and the abandonment of the rights issue, may well have ensured that the company could not survive.

The judge also commented that -

Throughout my judgment there are criticisms of ASIC's submissions and of aspects of its conduct of this case. Amongst the more serious are my views that:

• the scope of the case, endeavouring to prove the financial circumstances of a large multinational corporate group over each of four months, was far too wide and produced an excessively long and burdensome proceeding;

• in a substantial number of significant ways, ASIC's final submissions were outside its pleaded case;

• ASIC chose not to call any witness to explain certain tendered documents, instead inviting the court to draw inferences from the documents notwithstanding their ambiguities and other grounds for doubting their reliability; and

• ASIC's engagement of Mr Carter to provide expert evidence in the proceedings gave rise to substantial difficulties, in circumstances where Mr Carter had previously prepared a detailed report to assist the Commission to decide what course of action to take, with unfettered access to documents and witnesses, and he was told when his forensic report was at a mature draft stage that he was to exclude information he had obtained from individuals who would not be called to give evidence.

Ian Verrender in The Age today reflected on the judgement, commenting that

The time has come to bite the bullet. Disband the Australian Securities and Investments Commission and start all over again. For if there is one thing that has come of yesterday's mammoth Supreme Court judgment it is this: ASIC, even though it is run by lawyers, seems incapable of putting together a decent case to present to the courts.

Given it already has a less than impressive record when it comes to the investigation of corporate malfeasance and white collar crime in general, this embarrassing episode should hammer home the final nail in its coffin.

Yesterday's 3000 page judgment by Justice Robert Austin is a damning indictment on the ability of our corporate regulator.

The case against the One.Tel founders was ill conceived, poorly conducted and riddled with errors at almost every step. ASIC's arguments to the court were embellished and exaggerated, its evidence and analysis of the company's financial situation deeply flawed and it failed comprehensively to convince the judge of the fundamental basis of its case - that the defendants misled the board and the market.

ASIC has responded to the judgement, indicating that -

ASIC Chairman, Mr Tony D'Aloisio said the case should provide important guidance to executives and directors on the exchange of information between the board and management.

Additionally, the case has shed light on several important legal issues, notably the additional responsibilities of the chairman of a public company, particularly one with a finance/accounting background and considerable experience on public boards. It also identified the right of defendants in civil penalty proceedings not to give discovery or file witness statements until the conclusion of evidence by ASIC's witnesses.

'The case has also provided important guidance to ASIC on how to run similar matters in the future'

First Nations

I've belatedly caught up with Paul Chartrand's 30pp 'Reconciling Indigenous peoples' sovereignty and state sovereignty' [PDF], published by the Australian Institute of Aboriginal & Torres Strait Islander Studies in September this year.

Chartrand examines the concept of 'shared sovereignty' as

a contribution to the debate on reconciliation with Indigenous peoples in Canada and Australia. The discussion includes some commentary on some common features of the reconciliation debate in both countries. The main focus is on the views of a minority of justices in a Supreme Court of Canada case and their comparison with the analysis of Canada’s 1996 Royal Commission on Aboriginal Peoples.

His conclusion notes that

The concept of 'shared sovereignties' is presented as an idea that may influence the way citizens think about the indigenous peoples, and their aspirations to live harmoniously with others in circumstances of peace and justice in each country. I have not pretended to determine for indigenous peoples what their aspirations might be, and my contribution is intended to be supportive of aspirations for reconciliation.

An assumption behind the discussion in this paper is that concepts or ideas are useful and practical. It is interesting that politicians in each country have run roughshod over this simple proposition. To illustrate, they have used rhetoric which pretends to assert a preference for 'practical' strategies over such things as 'abstract discussions about rights ...'. The better view would seem to be that ideas or concepts are useful and practical guides for action. In this view, ideas play not only an important but an essential role because they inform actions designed to reach a particular policy objective. Ideas or concepts inform the development of legal rules and build a coherent doctrine governing a particular sphere of law. Furthermore, extremist views, whether advanced by politicians or ivory-tower ideologues, can not, by their very nature, contribute much to reconciliation.

Shared sovereignties as an idea moves collective thinking in a country that has jettisoned the idea of terra nullius, and which now accepts that the existence and presence of indigenous peoples on their lands matters, to the more fully equitable notion that not only the existence but also the political action of indigenous peoples matters in the creation of practices, precepts and laws that reflect a consensual view of the fundamental values that guide a vision of the just society and of the constitutional order that ought to sustain it. Indigenous peoples have a right to aspire to live according to their own visions of the good society, inspired by their own concepts about the universe and the values that ought to inform the way that good relations are to be established and maintained within families, communities, and the Nation-State. This is my understanding of the essence of the right of self-determination.

... The goal of creating harmonious relations can only be achieved, in the long run, by creating and maintaining good relations between representatives of the indigenous peoples and representatives of the State's governments. The agents and representatives of States, that is, the democratically elected government politicians, decide what is the nature and scope of the 'public interest' of all citizens. That includes all Aboriginal persons. Aboriginal persons are entitled to the enjoyment of all the rights of citizens, and are also subject to the obligations of citizenship. So the government represents the public interest of the entire population of the State, and its government members make decisions in the public interest. At the same time, under the concept of 'shared sovereignty', those who speak for the Aboriginal peoples have the authority and power to make decisions in the 'public interest' of each Aboriginal people that has a right of self-determination.

It is better to live with 'shared sovereignty' than with 'contested sovereignty'. The latter is the enemy of democracy and the companion of repression, subjugation and civil strife. It is better to legitimize the de facto governance of States such as Australia and Canada over the indigenous peoples by welcoming the participation of indigenous citizens in all decision-making that affects the general public interest as well as the public interest of each of the 'nations' or 'peoples' entitled to self-determination.

Wherever decisions are made that affect the interests of indigenous peoples there they must have a voice. The concept of 'shared sovereignty' stands for the idea that legitimate political participation today can cure an unconscionable beginning. If a just vision for our common future in our country must be built upon a common truth about the past, then perhaps 'shared sovereignty' also stands for the idea that as a country we can have a just vision of our society that is built upon an illusion about our ancestors so long as the illusion is commonly held. This should not be surprising if it is accepted that countries or societies seem to build a collective self-identity upon idealized histories.

It is a worthy study but to me far less persuasive than David Ritter's lapidary and insightful 250pp Contesting Native Title: From Controversy to Consensus in the Struggle for Indigenous Land Rights (Crows Nest: Allen & Unwin 2009).

Ritter was an Associate to Justice Robert French (now Chief Justice of the High Court) when the latter was President of the National Native Title Tribunal. Ritter subsequently served as Principal Legal Officer of a native title representative body and wrote the provocative 88pp The Native Title Market (Crawley: University of Western Australia Press 2009).

Contesting Native Title will discomfort some readers but is of major value for people interested in Indigenous land rights in Australia, in law's treatment of Indigenous people and in justice as a process rather than an outcome.