Retro

From the NY Times coverage in 1982 of the National Science Foundation Teletext and Videotex in the United States report, under the heading 'Study Says Technology Could Transform Society' -

A report commissioned by the National Science Foundation and made public today [13 June] speculates that by the end of this century electronic information technology will have transformed American home, business, manufacturing, school, family and political life.

The report suggests that one-way and two-way home information systems, called teletext and videotex, will penetrate deeply into daily life, with an effect on society as profound as those of the automobile and commercial television earlier in this century.

It conjured a vision, at once appealing and threatening, of a style of life defined and controlled by videotex terminals throughout the house.

As a consequence, the report envisioned this kind of American home by the year 1998:

Family life is not limited to meals, weekend outings, and once-a-year vacations. Instead of being the glue that holds things together so that family members can do all those other things they're expected to do - like work, school, and community gatherings -the family is the unit that does those other things, and the home is the place where they get done. Like the term 'cottage industry,' this view might seem to reflect a previous era when family trades were passed down from generation to generation, and children apprenticed to their parents. In the 'electronic cottage,' however, one electronic 'tool kit' can support many information production trades.

It continues that -

Privacy Issues Seen Posed

The report warned that the new technology would raise difficult issues of privacy and control that will have to be addressed soon to "maximize its benefits and minimize its threats to society." ...

The study focused on the emerging videotex industry, formed by the marriage of two older technologies, communications and computing. It estimated that 40 percent of American households will have two-way videotex service by the end of the century. By comparison, it took television 16 years to penetrate 90 percent of households from the time commercial service was begun.

Opportunities for Abuse

The "key driving force" controlling the speed of videotex penetration, the report said, is the extent to which advertisers can be persuaded to use it, reducing the cost of the service to subscribers.

But for all the potential benefits the new technology may bring, the report said, there will be unpleasant "trade offs" in "control".

"Videotex systems create opportunities for individuals to exercise much greater choice over the information available to them," the researchers wrote. "Individuals may be able to use videotex systems to create their own newspapers, design their own curricula, compile their own consumer guides.

"On the other hand, because of the complexity and sophistication of these systems, they create new dangers of manipulation or social engineering, either for political or economic gain. Similarly, at the same time that these systems will bring a greatly increased flow of information and services into the home, they will also carry a stream of information out of the home about the preferences and behavior of its occupants."

Social Side Effects

The report stressed what it called "transformative effects" of the new technology, the largely unintended and unanticipated social side effects. "Television, for example, was developed to provide entertainment for mass audiences but the extent of its social and psychological side effects on children and adults was never planned for," the report said. "The mass-produced automobile has impacted on city design, allocation of recreation time, environmental policy, and the design of hospital emergency room facilities."

Such effects, it added, were likely to become apparent in home and family life, in the consumer marketplace, in the business office and in politics.

Widespread penetration of the technology, it said, would mean, among other things, these developments:

- The home will double as a place of employment, with men and women conducting much of their work at the computer terminal. This will affect both the architecture and location of the home. It will also blur the distinction between places of residence and places of business, with uncertain effects on zoning, travel patterns and neighborhoods.

- Home-based shopping will permit consumers to control manufacturing directly, ordering exactly what they need for "production on demand."

- There will be a shift away from conventional workplace and school socialization. Friends, peer groups and alliances will be determined electronically, creating classes of people based on interests and skills rather than age and social class.

- A new profession of information "brokers" and "managers" will emerge, serving as "gatekeepers," monitoring politicians and corporations and selectively releasing information to interested parties.

- The "extended family" might be recreated if the elderly can support themselves through electronic homework, making them more desirable to have around.

Attribution and the film factory

'The Role of Private Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000' by Catherine Fisk in 32 Berkeley Journal of Employment and Labor Law (2011) offers a history of screen credit and the Writers Guild of America focused on "the union’s administration of private intellectual property rights to facilitate the labor market for writers and the market for ideas, scripts, and treatments for film and TV".

Fisk comments that -

Screen credit is one of the very few forms of intellectual property in the modern economy that is designed by workers for workers and without the involvement of the corporations that control most intellectual property policy. Based on research in the archives of the Writers Guild not available to the public, this article argues that the Guild survived conditions that might lead to de-unionization because of the value it provides writers and employers in managing markets for labor and ideas. In particular, the Writers Guild administers two private intellectual property rights systems – the screen credit system and the script registry – that facilitate transactions between writers and producers. The experience of the Guild suggests that under the right circumstances unions can support innovation by creative private intellectual property rights systems to address structural problems in labor markets for talented short-term workers and the start-up.

She concludes that -

The Guild is virtually unique in American letters in having a democratic and worker-controlled process for deciding the meaning of authorship and administering private intellectual property rights that turn on authorship. Hollywood writers sometimes perceive themselves caught in a squeeze between the work for hire doctrine, on the one hand, and the director-auteur theory of film, on the other. That is, corporations are deemed the legal authors of motion pictures and directors are deemed the factual authors. Film theorists have written critically, especially lately, about the ways in which the auteur theory obscures important information about the labor of production, and also about how the auteur dynamic enhanced the power of directors at the expense of other talent, especially below-the-line talent.214 Movie and television production companies have established themselves as the only legal authors of movies and television programs. They have also sought, in many ways, to be perceived as the factual authors in the wider culture, except to the extent that acknowledging individual contributions is good for business in a celebrity-obsessed culture. Through control of screen credit and the compensation that turn on it, the Writers Guild has created a system of private intellectual property rights that is as important as copyright to the operation of both labor and product markets in Hollywood. It is a unique system of private ordering that underlies a multi-billion dollar industry. And it is a system that has operated for decades with virtually no judicial or legislative intervention.

While the credit determination process had significant procedural and substantive elements from its creation in the 1940s, it has grown more elaborate both procedurally and substantively as most writers in Hollywood lost their status as employees of large, vertically-integrated studios and became (along with most other talent and craft workers) short-term, project-based employees of one-off production companies. The increase in legal complexity was a result of the increasing financial significance of credit; the more that came to be at stake in credit determinations, the more the Guild added procedural protections and substantive nuance. Legalism offers the union the shelter of procedural fairness as it decides the zero-sum question of which of its members will receive the considerable financial benefits that flow from credit. And the very limited judicial review of the Guild’s administration of the system reinforces the tendency toward legalism. Under the duty of fair representation, the Guild’s determination will be final and the Guild will not be subject to damages so long as its determinations are not arbitrary, discriminatory, or in bad faith, which is a substantial financial incentive for the Guild to use a process with all the trappings of the rule of law.

Amidst the half-century decline of labor unions, this control over valuable private intellectual property rights has enabled the Writers Guild to remain vibrant and influential. The rise of flexible production in Hollywood and the transformation of Hollywood labor and product markets could have destroyed the WGA but did not. Whereas other United States industries (manufacturing, telecommunications, and raw material extraction and processing) experienced de-unionization followed by drastic job-restructuring and labor market change, Hollywood experienced drastic job-restructuring and labor market change without the de-unionization. The Guild survived in part because its governance of the screen credit system helped it adapt to the changed employment relationship and helped it facilitate transactions between writers and studios and production companies. As motion pictures and television programs became ever more expensive to produce in the era of blockbuster films and television, the individual hiring contracts to provide writing services and contracts to acquire literary properties became more complicated and more high-stakes. Screen credit and the rights that flow from it reduced transactions costs and helped to organize a market that might otherwise have seemed hopelessly diffuse and confusing. The script registry facilitates the rapid and widespread sharing of ideas in a sector in which fears of idea theft and copyright litigation might otherwise deter sharing by writers or shopping by companies.

Although it seems clear that the WGA has done a great deal for writers and studios in the 75 years of its existence, it is not at all clear whether it will be able to negotiate the difficult times ahead. As many have remarked, content creators are in for tough times as new media have made distribution ever cheaper and easier while content creation remains slow and expensive. About half of major motion pictures and a substantial amount of television programming produced in the U.S. are done outside the WGA’s jurisdiction. The WGA is trying to organize growth sectors (video game production) but has not yet succeeded. The downward pressure on production costs generated by the war between content providers and new media distributors can be expected to increase pressure on companies to produce non-union unless the WGA is able to adapt.

The story is obviously not over. What the experience of the past suggests, however, is that private intellectual property rights regimes have played a substantial and generally constructive role in the markets for labor and for ideas and that the Guild has been able to solve the coordination problems necessary to make private IP rights systems function relatively efficiently. The Guild has both facilitated contracts and provided the institutional support to enable administration of private rights.

It may be that neither workers nor employers in other similar labor and product markets (such as video game and software development, and the development of other new media products and platforms) would be interested in establishing a union like the Guild. Path dependence is certainly a big part of the story of Hollywood. Writers unionized in an era when lots of educated (and uneducated) workers thought that unions were good. The culture of unionism that they created is easier to hand down to new generations than to create from scratch among a group of people who cannot imagine how a union could facilitate individual or collective negotiations or administer intellectual property rights. But to the extent that people think that knowledge workers never want unions and cannot benefit from them, or that unions have no role to play in the knowledge economy, the history of the Writers Guild teaches otherwise.

Wainohu

The High Court in Wainohu v New South Wales [2011] HCA 24 has ruled that the Crimes (Criminal Organisations Control) Act 2009 (NSW) - counterpart of the South Australian statute considered in Totani - is invalid as it undermines the institutional integrity of the NSW Supreme Court of New South Wales and is outside the legislative powers of the NSW Parliament.

French CJ and Kiefel J in their judgment note that under the NSW Act an eligible NSW judge may make a determination under Pt 2 of the Act on the basis of -

information and submissions, without regard to the rules of evidence, partly based on information and submissions not able to be disclosed to the organisation or its members, and with no obligation to provide reasons for the determination which is made. The Act thus provides for the enlistment of judges of the Supreme Court to determine applications for declarations using processes which, if adopted by the Court itself, would be repugnant to the judicial function.

The making of a declaration by an eligible judge is a necessary condition for the exercise by the Court of its jurisdiction to make a control order. It is well established that a State legislature, untrammelled by a doctrine of separation of powers derived from the Constitution of the State, can confer administrative functions on a court of the State or on judges of the court. It cannot confer administrative functions on a court which are incompatible with the court's essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides. Nor, as is explained in these reasons, can a State legislature confer upon judges of a State court administrative functions which substantially impair its essential and defining characteristics as a court. The Act effects such an impairment. It does so because it provides, in effect, that the jurisdiction of the Supreme Court to make control orders against members of an organisation will be enlivened by a decision of a judge of the Court, after an adversarial proceeding, on complex and important matters of fact, for which the Act provides that no reasons need be given. The Act also creates an impression of a connection between the performance of a non-judicial function and the following exercise of judicial power, such that the performance of that function may affect perceptions of the judge, and of the court of which he or she is a member, to the detriment of that court. The plaintiff's challenge to the validity of the Act should succeed.

Undeterred by more bad news after the Totani decision, noted here, the SA Attorney-General John Rau is reported as commenting that he remains committed to implementing OMG law based on restriction of association.

The question is how you get those orders? New South Wales, I emphasise, used a completely different methodology to get those orders and the High Court has said that methodology was flawed as well

SA Opposition justice spokesman Stephen Wade is reported as commenting that the South Australian Government should make a thorough reassessment of its organised crime legislation -

It's about time we asked ourselves the question 'Is it better to waste money in futile High Court challenges or is it better to get in back into the parliament and make laws that are well within our legal and constitutional power and get in and fight organised crime?

Wainohu, a member of the Hells Angels Motorcycle Club, had challenged the validity of an application by the Ag NSW Police Commissioner to a Judge of the NSW Supreme Court for an administrative declaration under Part 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the Act") regarding the Club. That declaration wouldf provide the basis under Part 3 of the Act for the Supreme Court - on application by the Commissioner of Police - to make control orders against individual members of the Club. Those orders would make it an offence for specified members to associate with each other and would bar from certain classes of business and occupation.

French and Kiefel note the legitimacy of anti-association legislation that is aimed at addressing "the incidence and sophistication of what is generally called 'organised crime'". That must however -

be pursued within the framework of the Constitution so as to maintain the integrity, independence and authority of the courts that may be required to determine whether persons charged with offences under federal, State or Territory laws are guilty of those offences, and to punish them if they are.

Wainohu attacked the validity of the Act regarding -

• the functions it confers on eligible judges including the provisions for private hearings in relation to criminal intelligence and protected submissions; and

• the functions it confers on the Supreme Court in relation to the making of interim control orders and control orders and particularly the obligation to maintain, as against the person affected by such applications, the confidentiality of criminal intelligence and protected submissions.

Those functions are said to undermine the institutional integrity and independence of the Court.

The plaintiff also claims that the Act infringes implied constitutional freedoms of political communication and political association.

In considering the claims French and Kiefel commented that -

Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term "institutional integrity", applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court's independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution. ...

It is not within the power of a State legislature to enact a law conferring upon courts which have or can have federal jurisdiction conferred upon them functions incompatible with the role of such courts under Ch III of the Constitution as repositories of federal jurisdiction. A function conferred upon a court which substantially impairs the institutional integrity of the court has that effect. ...

The principle in Kable also leads to the conclusion that a State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member. Although the function may be conferred upon the judge in his or her capacity as an individual, the statute may create a close connection and therefore an association with the person's role as a judge. Where this is the case, the potential for incompatibility of the non-judicial function is brought more sharply into focus. The question which then arises is whether the performance of that function would impair the defining characteristics of that court. It is that question with which the Court is concerned in this case.

Gummow, Hayne, Crennan and Bell JJ stated that Wainohu -

submitted a range of further arguments as to why the Act was invalid, in particular by reference to the provisions of Pt 3 and the exercise of jurisdiction thereunder by the Supreme Court. These submissions should not be accepted, noting in particular the following.

First, the conferral of jurisdiction on the Supreme Court under Pt 3 by ss 14(1) and 14(3) is to be understood as bringing with it the usual incidents of the exercise of jurisdiction by the Supreme Court and these are not excluded by a "distinct regime" of the nature considered in International Finance Trust Co Ltd v New South Wales Crime Commission. Secondly, an eligible Judge who has made a declaration under Pt 2 may be recused from the subsequent exercise of the jurisdiction of the Supreme Court under Pt 3. Thirdly, while the Act does not attempt to prescribe what might be "sufficient grounds" for the making of a control order (s 19(1)(b)), these must be ascertained by regard to the subject, scope and purpose of the Act including the consequences of the making of an interim control order or control order; there are numerous authorities establishing that the conferral of curial powers by reference to such criteria nevertheless may be susceptible to the exercise of judicial power. Fourthly, the regime created by Div 2 of Pt 3 for the making of control orders significantly differs from the provision in s 14(1) of the South Australian legislation held invalid in South Australia v Totani: there is no obligation imposed upon the Supreme Court to make an order upon the basis of the anterior declaration made by an eligible Judge.

The plaintiff also attacked the validity of the Act for exceeding the constraint upon State legislative power said to be derived from implications in the Constitution respecting political communication and freedom of association. Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply.

Further, the Act is not directed at political communication or association. With respect to control orders, special provision for exemption is made by the Act. If in the opinion of the Supreme Court the circumstances of the case require, a person may be exempted from the prohibition upon association imposed by s 26 to the extent and subject to the conditions specified in the control order pursuant to s 19(7). The provision in s 19(7) permits the restriction of control orders so as not unreasonably to burden freedom of political communication; the power of the Supreme Court to make a control order should be construed conformably with the implied freedom so as to render reviewable for error any particular order which exceeded the limit of the implied freedom. No provision for exemption is made for interim control orders; but, as the Commonwealth submitted, even if the result was in some circumstances to burden the implied freedom, the question would then be whether the Act nevertheless in this respect served a legitimate end of protection against the activities of criminal organisations and their members.

Disability construction

'Disability Trouble' by Bradley Areheart in 29 Yale Law & Policy Review (2011) 347-388 argues that -

In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.

An almost identical binary exists for disability, the disablement/ impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability.

In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble. ...

Disability scholarship is now in a critical stage. Theoretically, work on disability is young and entering a second wave of critical development. Jurisprudentially, disability is at a pivotal stage as courts prepare to reinterpret the provisions of the ADA in light of recent amendments. It is both timely and appropriate to rethink the meaning of disability, and this requires attention to the core explanatory construct in disability theory: the disability binary.

This Article advances the conversation about disability identity in a way that is attentive to related areas of scholarship, especially feminist work on the gender/sex binary. In this way, disability scholarship may draw on the richness of others’ contributions and avoid wheel-reinventing. There are legal implications to rethinking disability identity, and this Article identifies several of them. Hopefully, scholars and activists will build upon these insights to further bridge disability theory and practice.

Witch and Secession

Last year I noted the delightful claim by self-described witch Eilish De Avalon that she was "from another world" and therefore wasn't subject to mundane traffic law. She was reported by the Geelong Herald as telling a traffic policeman that "Your laws and penalties don't apply to me. I'm not accepting them, I'm sorry, I must go, thank you" before dragging him down the road for 200 metres. Presumably he was lucky not to be turned into a frog.

Last year she was sentenced to two months imprisonment, with a further four months suspended, apparently having pleaded guilty to recklessly causing serious injury and dangerous driving. There seems to have been no penalty for driving without a licence.

That's puzzling if we believe the fulsome claims on her website, which indicate that she claims some prowess in clairvoyance (surely she foresaw the meeting with a member of the Victorian Police and a question or two in court).

I come from a long line of Hungarian/Transylvanian intuitive clairvoyants and I've been psychic all my life. I am clairvoyant, clairaudient and clairsentient which means I have psychic vision, hearing and feeling and can see auras, spirits and can communicate with them too. ...

I have consulted famous people, helped police in their missing persons/homicide investigations and often commune with deceased loved ones in the spirit world because I am a gifted spirit medium too. ... My six month previews are also very popular. I'm an eerily accurate, profound clairvoyant and I invite you to have a reading with me, if you are not happy, you don't have to pay!

The oh so talented De Avalon offers "healing services" -

I am an experienced advanced spiritual healer, Reiki Master, colour therapist, chakra and auric diagnostician and can help when you are feeling out of kilter but can't put your finger on the imbalance or when you just feel like a pick-me-up. I also do clearings of a more serious nature when entity removals are needed or when the soul is fragmented when your power has been given away or taken from you.

Spiritual healings are particularly powerful as preventative medicine, realigning and changing the auric frequencies around the physical body before they manifest into physical imbalances and illnesses. They can help cut ties with old fears, phobias, traumas balancing the body, mind and spirit, in a holistic, non invasive way. I can also assist you in breaking of old habits or letting go of things that are holding you back from moving on with your life.

Spiritual Healing is cross-dimensional healing, it can help heal deep spiritual wounds, imbalances and scars from past lives, from current lives and post lives right down to the subcellular level, whatever the person's own belief system. This subtle yet powerful form of healing actually is a process of me, the "healer" facilitating your own healing and internal balance by channelling you energy that allows for the movement of chi and unclearing blockages and shadows within the system.

Scanning the body with the palm of my hand with closed physical eyes, my inbuilt spiritual "radar" can detect imbalances and feel energy distortions and irregularities that are too subtle to detect by any other conventional means, these distortions can be found in the physical body or any of the seven auric layers outside of the physical body that vibrate at more and more refined frequencies the further away they are from the body. But the important thing to remember is, you don't have to understand the metaphysical nuts and bolts of spiritual healing to benefit from it's effects.

I use many levels of treatment in spiritual healing: hands-on healing, Reiki symbols, crystal therapy grids, homeopathy, colour, sound, smudging and other spiritual practises to balance mind, body and soul.

I also may invoke and invite any spiritual guides, Master healers and teachers, angelic beings, gods/goddesses that wish to be present in the temple during the time of the healing, and often, they work through me and assist me with deeper levels of healing, as I channel love and light through my body into the client's energetic body, which in turn tunes the physical body and aligns it to assist in it's own healing. ...

The room can often feel as if there are more present than just myself and the client. I assure you there is nothing to fear, as the room is energetically protected, the ground consecrated as sacred, and only the highest beings of love, light and creation are admitted to assist me with healing the client. You may have visions, or you may just zone-out and experience a deep feeling of surrender and relaxation, the only thing I ask is that you come with an open heart and mind and trust in the power of this sacred age-old technique of laying on of the hands.

De Avalon appealed against the sentence, which has now been reimposed by Judge Geoffrey Chettle. The ABC reports that she responded "I decline your offer, Your Honour". Unsurprisingly, the comment by Judge Chettle was "You decline my offer? I'm sorry, it's not negotiable." The Geelong Advertiser notes that

The court was told De Avalon displayed her remorse by asking the injured policeman if she could offer him spiritual healing and massage and could not understand why he declined her proposition.

No understanding? Presumably her spirit guides were out of sync.

Given that practitioners of the dark arts are not allowed to take their broomstick and cat into a state correctional facility I suspect that De Avalon will be out of circulation for some time. Bad news for people who want a De Avalon ceremony. She is described in the Witchvox professional directory [sic] as -

High Priestess of the Order of Avalon, Eilish De Avalon
• Authorised Civil Marriage Celebrant A6762 and initiated Pagan Priestess available for all your rites of passage.
• Handfastings
• Handpartings
• Bridal Showers including henna and belly dancing nights
• Goddess Baby Showers
• Birthing Circle rituals
• Wiccanings/Pagan naming ceremonies
• Menarche and teenage boys rites of passage to manhood
• Transexual/intersexual reclaiming of gender ceremonies
• Commitment ceremonies for Gay, Lesbian, Bisexual, Polyamorous, Transexual & Intersexual unions
• Croning Ceremonies
• Death Bed Rituals
• Funeral Rites including pyres and viking funerals, special conditions apply.

Can't go wrong, it seems, with your own Order ... except when you put a policeman into hospital.

Similarly unpersuasive claims that the state's law does not apply were evident in Williamson v Hodgson [2010] WASC 95, an appeal over a speeding conviction noted in more detail here.

The judgment indicates -

By a prosecution notice dated 13 January 2009 Mr Williamson was charged with driving his vehicle in excess of the speed limit contrary to r 11(3) of the Road Traffic Code 2000 (WA). The charge was heard by the learned magistrate on 23 June 2009. Mr Williamson was found guilty and fined $75 and ordered to pay costs of $114.20. The facts of the case are very simple and not in dispute. They were in fact all admitted by Mr Williamson at the hearing. On 17 February 2008 Mr Williamson was driving his vehicle on a road in Glen Forrest. A radar device recorded the vehicle travelling at 89 km per hour in an 80 km per hour speed zone. Despite these admissions Mr Williamson maintained he was not guilty of the offence.

It goes on to note

Mr Williamson submitted that the provisions of the Road Traffic Act 1974 (WA), and I will assume the Road Traffic Code, are unlawful because, he says, they are inconsistent with the United Nations International Covenant on Civil and Political Rights (UN Covenant). Australia is a party to the UN Covenant but it has not been incorporated into Australian law and does not operate as a direct source of individual rights and obligations under that law.

The position is simply stated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, where at 286 - 287 Mason CJ and Deane J said:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive.

So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.

Mr Williamson submitted that s 58A and s 102A of the Road Traffic Act are inconsistent with the UN Covenant. In brief terms, these sections provide that when an infringement notice is left on a vehicle, the licence holder of that vehicle, called the responsible person, is deemed responsible for that infringement notice unless he or she informs the police of the identity of the infringing driver. Moreover, a responsible person, if requested by a police officer to give information about the driver, commits an offence if that driver fails to make reasonable measures to comply with the request.

With respect, Mr Williamson's submission on this point is misconceived. First, the provisions are not inconsistent with the UN Covenant. Second, even if they were the inconsistency does not make every provision in the Road Traffic Act and the Road Traffic Code invalid. Third, Mr Williamson was not charged as a responsible person. He was identified as the driver and admitted that he was. Fourth, the UN Covenant is not in any event part of the law to be applied in the case by the learned magistrate. This submission cannot succeed. ...

Alleged secession

Mr Williamson claims to have seceded from the Commonwealth of Australia and that he is not subject to the Road Traffic Code. He said today that the UN Covenant has given him this right. With respect to Mr Williamson, this is a misinterpretation of this document. ...

Any person whether a citizen of Western Australia or somewhere else is liable to abide by the laws of Western Australia including its road traffic laws. This ground has no merit. ...

Alleged invalidity of prosecuting entity

Another submission made today in the course of argument was that the entity who issued Mr Williamson with the infringement notice had an Australian business number or ABN. Mr Williamson submitted that he was therefore being prosecuted by a corporation and not the police.

A person or entity does not become a corporation because that person or entity has an ABN. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover above a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN.

An ABN holder may be an individual, a corporation, a partnership or government entity. It is not necessary that the entity be engaged in a profit-making venture. It is irrelevant to the validity of the infringement notice or any subsequent prosecution that the entity who issued the infringement notice had an ABN. In any event Mr Williamson was not dealt with under the infringement notice provisions of the Road Traffic Act. He was dealt with in Court. The prosecution was initiated by a police officer, a person who had the relevant authority to prosecute Mr Williamson. This ground has no merit.

Overall, nice try but no cigar.

Sexing the law

Two articles from (2011) 14(3) Sexualities  ...

'Forming sexualities as judicial virtues' by Leslie Moran at 273-289 explores -

the formation of sexuality in the institution of the judiciary. Its object of study is an archive made up of the texts of swearing in ceremonies of newly appointed judges of the Supreme Court of New South Wales, Australia. The texts, records of public events, demonstrate a remarkable consistency of general content and tone. They take the form of what might best be described as life writing (biography and autobiography). They have a strong hagiographic quality. Dedicated to writing the life of the newly appointed judge, they are a particular form of life writing devoted to the portrayal of state officials. As such they have a double function formulating and fashioning the subject not only as an exemplary individual life but also as a subject that embodies the virtues of the judicial institution. Each swearing-in document offers a textual portrait that makes and makes public the values and virtues of the institution of the judge. An important context for this study is an earlier empirical research project on sexual diversity in the judiciary. Key informants in that research advised me that sexuality was unlike the other strands of diversity. It was described as a personal and a private matter: strictly extra judicial. The primary objective of this essay is to explore how, if at all, sexuality is made in these public judicial ceremonies and texts, and more specifically, how the subject’s sexuality is figured as an institutional ideal, as a judicial virtue. In undertaking this task the analysis will also examine some aspects of the role of gender in the formation of the judicial subject as a sexual subject.

'Sexualizing the child: The strange case of Bill Henson, his ‘absolutely revolting’ images and the law of childhood innocence' by Brian Simpson at 290-311 notes that -

In 2008 internationally acclaimed Australian photographer Bill Henson planned to exhibit some of his work at a Sydney Gallery. This included photographs of a naked 12-year-old child. When one image was used in publicity to promote the exhibition it came to the attention of the organizer of a child advocacy group who complained to police that the image constituted child pornography. The subsequent seizing of the images gave rise to a community debate about artistic freedom, what constitutes child pornography and the capacity of children to consent. Although these events coincidentally occurred at the same time as a Senate inquiry into the sexualization of children in the media, the issue of childhood sexuality was a muted aspect of the ensuing public debate. ...

Much of the public debate that occurred after the reporting of Henson’s images to the police centred on the issue of free artistic expression and the point that for centuries the naked body (including the child’s) had been the subject of art (Marr, 2008: 129–130) versus the appropriateness of exhibiting naked images of children which might be used by paedophiles for their sexual titillation. There was also some debate about whether a child could consent to being photographed naked, and whether the parents could validly consent on the child’s behalf. But for the most part there was little direct engagement with the ambiguity of childhood that Henson’s work represents. It is my argument that the issues of childhood sexuality raised by Henson’s work lead logically to the complaints made against him as they feed into the anxieties held by many about the meaning of childhood and children’s sexuality. At the same time those who defended him tended to avoid the issue of childhood sexuality raised by his work in preference to more orthodox stances based on artistic freedom and denials that the images were sexual at all. ...

In all the debates about the Henson images the matter of childhood sexuality was side-stepped by all concerned. Few suggested that children had agency in these matters, nor did the rights of the child, including to be sexually educated, figure much in debates. One might be forgiven for agreeing with Kincaid that it was as if everyone wanted to maintain the child’s innocence to increase the allure of the sexual context in which the images were portrayed by some. But what may instead unite both sides of the debate is the investment that all adults have placed in children, and a consequent reluctance to empower children and acknowledge their autonomy rights. This was a controversy very much controlled by adults and articulated in accordance with their competing anxieties on both sides.

Raising the bar

The Minister for Innovation, Industry, Science & Research has introduced the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (Cth) in the Senate.

That Bill was the subject of consultations noted earlier this year and is meant to "make improvements to IP rights legislation to better meet the objectives".

Amendments in the Bill cover the Patents Act 1990 (Cth), the Trade Marks Act 1995 (Cth), the Copyright Act 1968 (Cth), the Designs Act 2003 (Cth) and the Plant Breeder’s Rights Act 1994 (Cth), corresponding to six schedules -

S1 - Raising the quality of granted patents
S2 - Free access to patented inventions for regulatory approvals and research
S3 - Reducing delays in resolution of patent and trade mark applications
S4 - Assisting the operations of the IP profession
S5 - Improving mechanisms for trade mark and copyright enforcement
S6 - Simplifying the IP system

The 150 page Explanatory Memo outlines the Bill as follows -

Schedule 1: Raising the quality of granted patents

In order to meet its objective of supporting innovation, the patent system must strike a balance. It must provide sufficient protection to reward innovation, but not so much protection as to block future or follow-on innovation. Concerns have been raised that the thresholds set for the grant of a patent in Australia are too low, suppressing competition and discouraging follow-on innovation. Particular concerns have been raised that patents are granted for inventions that are not sufficiently inventive, and that the details of inventions are not sufficiently disclosed to the public.

These concerns were recognised in the 2008 review of the national innovation system Venturous Australia and the Government’s response to this review: Powering Ideas: the innovation agenda for the 21st century.

The Bill amends the Patents Act to address four key areas of patentability.

First, the Bill amends the Patents Act to remove restrictions on the information and background knowledge taken into account when assessing whether an application is sufficiently inventive to justify a patent. This will raise the standard set for inventive step in Australia to a level that is more consistent with standards set in our major trading partners.

Secondly, the amendments bolster the requirement that a patented invention be useful: that is, that the invention works in the way that the patent says it does and that the specification explains how the invention works. The amendments strengthen this requirement to prevent the grant of patents for speculative inventions that require too much further work before they can be put into practice.

Thirdly, the Bill raises the standards set for disclosure of an invention. A patent is a compact between an inventor and the state: in exchange for a time-limited exclusive right to exploit an invention, a patentee must give the public sufficient information to make and use the invention. In this way the patentee is rewarded for what they have done and the public has access to the information necessary to conduct follow-on innovation and to make and use the invention once the patent has expired. The amendments address circumstances where the information disclosed in a patent specification, although sufficient to make one thing within the scope of each claim, is not sufficient to make the invention across the full scope of each claim. The changes ensure that granted patents are no broader than the invention which has been disclosed.

Fourthly, the Bill amends the Patents Act to increase certainty in the validity of granted patents. Currently, the Commissioner is limited in the grounds she can consider when deciding whether to grant a patent, or whether to revoke a patent after re-examination. In contrast the courts can consider a wider range of grounds. As a consequence, a patent correctly granted by the Commissioner may be subsequently found invalid by the courts. The change will expand the grounds that the Commissioner can consider, and apply a consistent standard of proof across all grounds, so that the Commissioner is not obliged to grant patents which would not pass scrutiny in a court challenge.

Schedule 2: Free access to patented inventions for regulatory approvals and research

The patent system grants exclusive rights to commercialise and exploit inventions free of competition. Research, as such, does not affect this. However, currently there is no statutory provision clarifying researchers’ freedom to conduct experiments and there is uncertainty about the scope of any existing common law protection. This leads to inefficiencies in research. Researchers are discouraged from taking up new lines of research where there is uncertainty about their liability for patent infringement. Uncertainty also leads to researchers expending effort and expense on seeking advice, where they have concerns about how their experiments intersect with the patent system.

The Bill amends the Patents Act to draw a line between research and commercial activities, leaving researchers free to conduct their experiments without worrying about the patent system. The amendments are designed to clarify that research and experimental activities relating to patented inventions are exempt from infringement, whereas commercial activities are not. The intent is to give broad and clear protection to research and experimental activities in order to maximise the potential for research in Australia.

The Bill also introduces an exemption for activities undertaken solely for the purpose of gaining regulatory approval to market or manufacture a patented technology. This expands the existing exemption for pharmaceutical inventions to all technologies; recognising that technologies other than pharmaceuticals may also suffer delays in bringing products to market as a consequence of lengthy pre-market and pre-manufacturing regulatory approval processes.

Schedule 3: Reducing delays in resolution of patent and trade mark applications

The patent and trade mark systems also need to strike a balance between giving sufficient time to get applications in order for grant or registration and minimising delays in giving certainty about whether a right will be granted, and what scope that right will have.

Two elements of the current patents and trade marks systems, in particular, lend themselves to lengthy delays in applications proceeding to grant or registration. These are patents and trade marks opposition proceedings and divisional patent applications (which occur when part of an application is divided out into a new application). Currently opportunities exist for a party, usually an applicant but sometimes also a competitor, to substantially delay finalisation of these elements. Delay may suit the party, but it is not in the interests of the public, or the party’s competitors.

The Bill amends the Patents and Trade Marks Acts to refine opposition proceedings to better meet their intended purpose as a means for settling disputes quickly and inexpensively. The Bill also amends the Patents Act to tighten the timeframes within which divisional applications can be filed, reducing opportunities for abusive use of these types of application.

Schedule 4: Assisting the operations of the IP profession

Patent and trade mark attorneys play a valuable role in assisting businesses and innovators to negotiate the IP system and protect their good ideas. Currently, there are anomalies between the ways in which patent and trade mark attorneys can conduct their business and the ways in which other professionals can operate, specifically the legal profession. The Bill amends the Patents and Trade Marks Acts to allow attorneys to incorporate and to extend to client-attorney communications the same privilege as currently exists for communications between a lawyer and their client. The changes will help patent and trade mark attorneys deliver professional high quality services to their clients.

Schedule 5: Improving mechanisms for trade mark and copyright enforcement

Effective enforcement of trade marks and copyright is a significant issue for rights owners, who have worked to establish their brand in the marketplace and do not want to see others take unfair advantage of their hard work. Stakeholders have raised concerns that the penalties for trade mark counterfeiting are lower than those for copyright infringement and insufficient to deter infringers. Concerns have also been raised that the current system for confiscating imported counterfeit trade mark and copyright goods is inadequate. The Bill amends the Trade Marks and Copyright Acts to bolster the penalties for trade mark infringement and to improve the system for confiscating counterfeit goods.

Schedule 6: Simplifying the IP system

An ever present challenge for the IP rights system is to balance the level of complexity necessary to ensure a robust system with the need for the system to be accessible and cost effective to a wide range of users.

The Bill amends the Patents, Trade Marks, Designs and Plant Breeder’s Rights Acts to implement a number of fixes to the system to remove procedural hurdles, streamline processes and make improvements to ensure that the system is fit for purpose in an increasingly electronic and globalised business environment.