Legal pluralism and cadavers

The ABC, in reporting "Clash of laws over Indigenous autopsy", highlights questions about legal pluralism and cultural diversity in Australia.

Prominent Indigenous artist Banduk Marika has unsuccessfully sought an injunction against the Northern Territory coroner's authorisation of an autopsy on her son, who was run over on 20 December. Marika reportedly argues that an autopsy is inconsistent with traditional law. She had told police after her son's death that she did not want an autopsy. She was told by the coroner during the next day that an autopsy would be carried out in 48 hours.

Marika was one of the participants in the landmark 'Carpets Case' (aka Indofurn Case) - George Milpurrurru, Banduk Marika , Tim Payunka and the Public Trustee of the Northern Territory v Indofurn Pty Ltd, Brian Alexander Bethune, George Raymond King and Robert James Rylands [1994] FCA 1544 - regarding intellectual property.

During the injunction hearing Marika reportedly told the court that her family felt "disfigurement" of her son's body was unnecessary, that the family had not seen any evidence from police to justify it and that when a body is interfered with by a foreign hand the dead person's spirit is prevented from moving forward into the next world.

Disquiet about autopsies (or more broadly about delays in burial/cremation of a body) is not restricted to Indigenous people. Most Australian jurisdictions make some allowance for cultural sensitivities, for example under ss 20 and 28 of the Coroners Act 1997 (ACT) and ss 25, 88 and 96 of the Coroners Act 2009 (NSW). (Note associated sanctions such as those under s 83 of the ACT Act.)

Coronial powers to order autopsies reflect the authority of the state (and rationales such as serving justice through fact-based criminal investigation and protecting public health through research in disease or injury). They also reflect the notion - articulated for example in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 and Leeburn v Derndorfer [2004] VSC 172 - that there are typically no property rights in a cadaver or - as noted in R v Sharpe (1856-57) Dears & Bell 160; 169 ER 959 - comprehensive rights of possession.

Your survivors thus do not own your bones and other "stuff". Once you are dead you are no longer in a position to claim torts of assault, false imprisonment, defamation and so forth. (In circumstances where a coroner is not involved you might, however, have made an 'advance direction' under for example s 25 of the Human Tissue & Transplant Act 1982 (WA) that your body may be 'anatomised' after death and provision is made in Australian jurisdictions, through for example s 22(5) of the Transplantation & Anatomy Act 1978 (Qld), for authorisation of post-mortem organ harvesting.)

The record of Australian courts in approving or rejecting applications to prevent autopsies or simply order that a deceased person be buried, burned or exposed for transmutation by vultures is mixed.

Riley J in Wuridjal v Hand [2001] NTSC 99 thus rejected an application by members of the Yolngu community. Coroners' decisions have been overturned in for example Green v Johnstone [1995] 2VR 176, Re Death of Simon Unchango (Jnr); ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65 and Abernethy v Deitz (1996) 39 NSWLR 701.

Corporations and dialectic

Reading Oona Eisenstadt's derridean 'Making Room for the Hebrew: Luther, Dialectics, and the Shoah' in 69(3) Journal of the American Academy of Religion (2001) 551-575 and 'Early Elements of the Corporate Form: Depersonalization of Business in Ancient Rome' (Amsterdam Center for Law & Economics Working Paper No. 2009-14 here) by Barbara Abatino, Giuseppe Dari-Mattiacci & Enrico Perotti.

Eisenstadt looks at Franz Rosenzweig's 1926 'Scripture and Luther' and Ullmann & Kien's Terezin masterpiece Der Kaiser von Atlantis [YouTube snippet here].

The 43pp paper by Abatino et al argues that -

A crucial step in economic development is the depersonalization of business, which enables an enterprise to operate as a separate entity from its owners and managers. Until the emergence of a de iure depersonalization of business in the 19th century, business activities were eminently personal, with managing partners bearing unlimited liability. Roman law even restricted agency. Yet, the Roman legal system did develop a form of de facto depersonalized business entity, which, although in a radically different way, exhibited all the distinctive features of modern corporations (continuity, direct agency, limited liability, and entity shielding). Business was depersonalized by making the fulcrum of the company a nonperson: the slave. Paradoxically, limited liability was achieved by extending the liability of the master to include assets managed by the slave (the peculium), in contrast with an earlier principle that the slave owner was not responsible for transactions by his slave. On the question why de iure depersonalization emerged only over a thousand years after the Roman experience, we discuss three hypotheses: (i) a cultural hypothesis, (ii) a technological hypothesis and (iii) a biased-evolution-of-remedies hypothesis.

All in all less entertaining - and, for me, less persuasive - than A Social History of Company Law: Great Britain and the Australian Colonies 1854-1920 (Aldershot: Ashgate 2009) by Rob McQueen.

Singing chickens

Singing chickens? Actually, a singing goose, care of the oily Mr Orff.

The BBC and PPL (Phonographic Performance Ltd) - the UK music copyright collecting society (CCS) that now promotes itself as "a music service company" - have announced a list of what has variously been characterised as the thirty "most listened to" classical works, "most played recordings", "most played classical music" or "most widely heard" classics over the past 70 years.

The list, alas not described in much detail on the PPL site, is "compiled ... from songs played on TV, radio, online streaming and in public places such as shops". The compilation includes works other than songs. It is apparently restricted to the UK and covers phonographic performances, ie playing tapes or disks rather than renditions by a live orchestra, band, choir or soloist.

What are the works that the guardians of the airwaves and coffee shop operators think that we should hear (or that we want to hear). Overall, a somewhat syruppy collection that offers a perspective on the 'most borrowed' list highlighted here -

1. Orff - 'O Fortuna' from Carmina Burana
2. Vaughan Williams - Fantasia On A Theme By Thomas Tallis
3. Rimsky-Korsakov - Scheherazade
4. Tchaikovsky - The Sleeping Beauty
5. Schumann - Romance In F Sharp Major Op.28/2
6. Delibes - Sylvia
7. Rachmaninov - Symphony No.2
8. Holst - The Planets
9. Tchaikovsky - The Sleeping Beauty
10. Schubert - Symphony No.5
11. Rachmaninov - Piano Concerto No.2
12. Bizet - Carmen
13. Holst - The Planets
14. Vaughan Williams - The Lark Ascending
15. Zipoli - Elevazione For Cello And Oboe
16. Beethoven - Symphony No.6 ('Pastoral')
17. Grieg - Piano Concerto
18. Tchaikovsky - Swan Lake
19. Litolff - 'Scherzo' from Concerto Symphonique No.4
20. Holst - The Planets
21. Vivaldi - The Four Seasons
22. Rodrigo - Concierto De Aranjuez
23. Saint-Saens - Symphony No.3 ('Organ')
24. Elgar - Cello Concerto
25. Bruch - Violin Concerto No.1
26. Mendelssohn - Symphony No.4 in A Major ('Italian')
27. Orff - 'O Fortuna' from Carmina Burana
28. Rimsky-Korsakov - Scheherazade
29. Holst - The Planets
30. Mendelssohn - A Midsummer Night's Dream

Multiple appearance of particular works apparently reflects the popularity of specific performances (eg Charles Mackerras's Scheherazade is number 3, Seiji Ozawa's is number 28). There is no indication of context - did we hear yet another 'bang the saucepans' jingle from Orff as background noise in a coffee, chocolate or condom ad? - and no indication of whether consumption patterns have changed (eg Vaughan Williams was big in the sixties and seventies but is now way down the list in contemporary rankings?).

National biometrics in .il

The Knesset has passed Israel's Biometric Database Law, expected to provide the statutory basis for introduction of 'smart' identification documents for all Israelis.

Interior Ministry officials will be authorized to collect the biometric data - fingerprints and facial contours - of all residents for the purpose of issuing identity cards, passports or other official documents.

As with similar identity regimes in Australia and elsewhere (eg the latest generation of Australian passports), those documents will feature a microprocessor (ie a chip similar to those used in some credit cards and perimeter access cards) that will contain data based on the individual's fingerprints (two fingers) and facial geometry, eg a unique hash generated from an image of the person's face rather than the image itself. Biometric and other information on the databases will be matched with registration information on national databases. That would permit an official to determine, for example, that the photo on an identity document corresponds to the bearer's face but that the individual is using another name and therefore is engaging in an identity offence.

As yet I haven't sighted the legislation. From media reports it appears that the government has mollified some critics through a statutory commitment to establish two discrete databases: one including the card-bearer's name and the other featuring data from the individual's fingerprints and the face. The databases will be established and maintained in two separate ministries and "will be linked by a code". There seem to be no official statements about sharing data with the private sector.

The 'splitting' of initial plans for a central database was an addition to the draft legislation in November, promoted as a safety measure -

so that anyone managing to penetrate one data bank would have only part of the information and it would be meaningless without the information from the other data bank.

The Chair of the Knesset Science and Technology Committee claimed -

The protection provided for this data bank is among the best in the world. It is protected at a level of 11 on a scale of one to 10

... which sounds impressive but is arguably meaningless. (What's an '11' when the scale ends at '10'? The Bill's sponsor subsequently explained that "if the databases of the Mossad, the Shin Bet and the Prime Minister's Office are currently protected at a level of 10, then this one will be protected at a level of 11".)

Debate about development of the new regime featured the usual claims. A government spokesperson claimed that "there are 350,000 people living in Israel with fraudulent documents including tens of thousands with forged passports" and that forgery of the 'smart' documents will be impossible.

One former police executive offered an exceptionalist argument, commenting that -

in a normal state that does not face the enemies we face, there is no need for such a system. But here we are in an intolerable situation, facing internal and external enemies. The ease with which current Israeli documents can be forged is an enormous problem.

[Identity documents] are so easily faked. For us, this is an existential issue. There are thousands of people walking around with fake IDs or with no IDs whatsoever. Some are criminals, and others are hostile elements. You would not believe how many suspects we have found who changed their identities to hide previous convictions. Many identities have also been stolen.

He noted that the danger of official misuse of information is present with existing databases.

Critics expressed concern that information will be leaked or misused, eg "Criminals could steal fingerprint information and use it to incriminate innocent people". Likud Minister Michael Eitan indicated that -

not only will the system threaten the privacy of all Israelis, but even worse, it will create an atmosphere in which everyone will feel their privacy is being invaded.

Eitan was not however planning to vote against the law.

Implementation of the law involves a two year trial period, during which participation in the biometric database/s will be voluntary. Three months prior to the end of trial, the government will formally re-assess the regime's effectiveness, with the Prime Minister and Interior minister reporting to a special ministerial committee and to a Knesset committee. If the trial is deemed successful, Interior Ministry officials will be mandated to collect the biometric information without consent. The legislation allows some wriggle room: the Interior Minister will be empowered to extend the trial by an additional two years after provision of the reports, with a requirement that a 'final decision' must be made within four years after initiation of the databases.

Rats begin to chew the sheets

Rick Perlstein in Nixonland (Scribner, 2008) at 362 quotes a memo on RN's first day as US president -

To: Mrs Nixon
From: The President

With regard to RN's room, what would be the most desirable is an end table like the one on the right side of the bed which will accommodate TWO Dictaphones as well as a telephone ... In addition he needs a bigger table on which he can work at night. The table which is presently in the room does not allow enough room for him to get his knees under it

Not quite my idea of pillow-talk.

Perlstein goes on to quote Nixon (at 460) as commenting that –

It's a piece of cake until you get to the top. You find you can’t stop playing the game you’ve always played it because it is part of you and you need it as much as an arm or leg … You continue to walk on the edge of the precipice because over the years you have become fascinated by how close to the edge you can walk without losing your balance.

and it all went black

I'm underwhelmed by the announcement that cyberrights advocacy group Electronic Frontiers Australia (EFA), the Australian counterpart of the EFF that's phobic about content restriction and resolutely treats the net as deserving an uppercase 'i', is -

encouraging Australian Internet users to take part in its Great Blackout Campaign, by blocking their profiles on Twitter and by 'blacking out' the home page of their web site.

Oh dear, a Twitter-free day ... or a "National Day of Action" without tweets from the self-identified digerati. Somehow I don't think that the Government will be brought quivering to its knees and civilisation as we know it will cease because a handful of geeks have prised themselves away from the keyboards and screens in a brave protest "against the Government's plan to introduced mandatory ISP-side Internet filtering".

I've hitherto resisted the temptation to comment on the censorship plan, given the shrill - and at times quite disingenuous - comments from advocates for/against mandatory filtering. The Government's plan strikes me as clumsy and, given my past criticisms of filtering, as oversold. Censorship 'security theatre' is problematical because it is likely to induce unrealistic expectations among some consumers that all offensive content (or the most offensive content) has been comprehensively blocked, enabling parents/guardians to safely abdicate responsibility for those under their care.

Notions of internet exceptionalism, in particular claims that we must not restrict any online content, are equally problematic. In practice liberal democratic governments have attempted, usually with considerable success, to restrict the dissemination of particular content through print and electronic media and through face to face contact. That restriction can be justified on human rights grounds and we might question unthinking adoption of an ideology founded on misunderstandings about the US Constitution's enshrinement of free speech. Is the net so special that it's situated outside legal frameworks?

A day without tweets will attract media attention but life will continue, perhaps even for the better. Step outside, Twitterers, and get some fresh air. While you are there you might contemplate whether there are other aspects of regulation that deserve attention and whether it's time to forgo being cyberselfish, instead taking substantive action against human rights abuses in Australia and overseas. Staying away from the keyboard for a few hours is a lazy protest. Depriving readers of rivetting personal communiques about whether the Twitterer had fries for lunch, is hungover or is rooly mad at big bad Senator Conroy may affect that author's self-esteem but has the same negligible impact - and the same self-indulgence - as buying a plastic bracelet to make world poverty go away overnight.

Vilification

The judgment by the NSW Administrative Decisions Tribunal in Trad v Jones & anor (No. 3) [2009] NSWADT 318 has found that a complaint of racial vilification against shock jock Alan Jones and broadcaster Harbour Radio Pty Ltd (licensee of Radio 2GB) is substantiated, with the respondents being ordered to pay controversial figure Keysar Trad damages of $10,000. The broadcaster will conduct a review and there will be an apology.

The decision reflects the Anti-Discrimination Act 1977 (NSW) [ADA], part of the suite of national and state/territory law that seeks to inhibit ethno-religious vilification, for example action under the Racial Discrimination Act 1975 (Cth) [RDA] against antisemitic hatespeech, evident in Toben v Jones [2003] FCAFC 137 and Jones v Scully [2002] FCA 1080. (Restrictions on vilification were found to be consistent with the implied right of political communication under the national constitution.)

David Marr in today's SMH comments that -

Though a good deal less than a day's pay for Alan Jones, the $10,000 he and 2GB were ordered to pay last week for vilifying Lebanese in Australia is the first punishment inflicted on either the talkback king or his station for attacks on Lebanese Muslims that reached their depths in the days before the Cronulla riots in the summer of 2005. ...

Trad's brawls with 2GB and Jones over nearly five years have seen his own reputation shredded in the NSW Supreme Court and Jones dogged by investigations and hearings, all strenuously defended by 2GB. These aren't over but at this point the scorecard reads: one devastating loss for Trad in the courts and two losses for Jones before tribunals. The legal fees paid by 2GB must now run into millions.

What's different this time is the political silence. When the Australian Communications and Media Authority ruled Jones broadcast material in the days before the Cronulla riots "likely to encourage violence or brutality", the prime minister, John Howard, leapt to the defence: "I don't think he's a person who encourages prejudice in the Australian community, not for one moment, but he is a person who articulates what a lot of people think".

But last week's decision by the NSW tribunal seems to have brought no high-powered supporters out of the woodwork. Perhaps they are busy with Christmas but the silence has been telling. Indeed, the decision has been only briefly reported but it's quite a tale, and the tribunal's 64-page critique of the broadcaster's methods looks destined to become prescribed reading for lawyers, students and anyone wanting to know how talkback radio works to excite its audience.

Marr notes that -

In the immediate aftermath of the riot, Trad himself came under attack from 2GB's Jason Morrison. Trad had attacked the role of the media at a public meeting and next day on air, Morrison called him "a disgraceful and dangerous individual who incited violence, hatred and racism" and went on to accuse Trad of being "responsible for more misinformation about the Islamic community ... than any other person".

Trad sued the station. In July this year Justice Peter McClellan of the NSW Supreme Court delivered a withering judgment that analysed in detail Trad's role as a spokesman for the Lebanese community and for Hilali. McClellan declared most of Morrison's criticisms of Trad were substantially true.

The judge accepted Trad was, indeed, a "disgraceful individual" because he "encourages others to support attitudes repugnant to the Australian community or encourages violence against women, homosexuals or various ethnic groups and supports child suicide bombers and acts of terror or when given the opportunity fails to condemn these views ..."

Trad had lodged a complaint with the NSW Anti–Discrimination Board in April 2005, alleging that Jones racially vilified him and "the entire Australian Muslim community and the entire Lebanese community" during broadcasts over several days. Jones has attracted criticism over the 'cash for comment' affair (ie money secretly paid to influence editorial opinion) - squibbed by the national regulator - plagiarism and his involvement in politics, highlighted in works such as Jonestown: The Power and The Myth of Alan Jones (Sydney: Allen & Unwin 2007) by Chris Masters and Cash For Comment: The Seduction of Journo Culture (Sydney: Pluto Press Australia 2000) by Rob Johnson.

Trad alleged that broadcast conveyed imputations that members of those communities -

are "despicable people", "unsuitable immigrants" and are "not suitable citizens for Australia"; that they "do not and cannot assimilate"; that they "behave in a manner similar to a badly behaved conquering army during war time"; that they are "prone to commit sexual assaults"; that they are "violent"; that they "violently take what they can from Australia"; that they are "obnoxious persons"; that the group is "akin to disgusting insects or small animals, such as rats or rodents"; that members of the group are "not human"; that they are "parasites", "have overrun the country", are destructive and "have invaded Australia"; that they are "unreliable citizens or residents" and are "an internal danger to the security of the country".

The Tribunal noted Jones' statement during one of those broadcasts that -

If ever there was a clear example that Lebanese males in their vast numbers not only hate our country but our heritage, this was it. They've got no connection to us. They simply rape, pillage and plunder a nation that's taken them in. No one who's written to me could believe what they saw. Without exception, you asked what did we do as a nation to have this vermin infect us like this. And what about the sacrifices of our war dead, made for this country to make it what it is today, and to have these mongrels laugh at them on national television?

Unsurprisingly, the Tribunal characterised that as "reckless hyperbole calculated to agitate and excite his audience", commenting that Jones "stimulates, urges and agitates his listeners and correspondents with his emotive editorials and, unsurprisingly, often receives as feedback highly inflamed and inflammatory comment more or less echoing his provocative commentary". It commented that -

Having listened to the broadcasts and having read the transcripts, the overwhelming impression Mr Jones's broadcasts left was that much of his material was imprudent, incautious, inflammatory and motivated by prejudice against those whom he apparently believed to be a threat to a culture to which he is very much attached. ...

His comments about "Lebanese males in their vast numbers" hating Australia and raping, pillaging and plundering the country, about a "national security" crisis, and about the undermining of Australian culture by "vermin" were reckless hyperbole calculated to agitate and excite his audience without providing them with much in the way of solid information.

The respondents in our view have not discharged the onus of establishing that Schedule A broadcast was either reasonable or made in good faith. Accordingly the defence contained in s 20C(2)(c) in not available.

The Tribunal concluded that -

Rather than dispassionately analysing the evidence and commenting on it, Mr Jones appears to have been induced or stimulated by his own preconceptions to place highly exaggerated and distorted interpretations on the few objective facts apparently known to him ...It is difficult to imagine circumstances in which it is reasonable for a commentator in a society ruled by law either directly or indirectly to endorse, or imply endorsement of, violent solutions to social issues or problems.

Jones' comments "could only be regarded as an incitement to listeners to hate and hold the Lebanese Muslim community and Lebanese males in serious contempt".

Sodom & Begorrah

Yes, not a very original or generous title ... I'm reading the Dublin Archdiocese Commission of Investigation report while waiting for the rain to clear.

The Dublin Archdiocese Commission report was completed earlier this year, shortly after publication of the Report of the Commission to Inquire into Child Abuse (aka the Ryan Report) with which it is sometimes confused.

The Ryan Commission was "primarily an investigation of the treatment of many thousands of children, over many decades, in residential institutions, including industrial schools, run by various religious orders and congregations". It was concerned with establishing whether abuse (sexual or otherwise) occurred and with the nature and scale of that abuse.

It produced a chilling four volume report [PDFs here] that featured conclusions such as -

Physical punishment was severe, excessive and pervasive and by being administered in public or within earshot of other children it was used as a means of engendering fear and ensuring control. Sexual abuse was a chronic problem. For two thirds of the relevant period there was at least one sexual abuser in the school, for almost one third of the period there were two abusers in the school and at times there were three abusers working in Letterfrack at the same time. Two abusers were present for periods of 14 years each and the Congregation could offer no explanation as to how these Brothers could have remained in the School for so long undetected and unreported. ...

Children were emotionally and physically neglected throughout the relevant period and those children who could have benefited from family contact were deprived of this because of the remoteness of Letterfrack's location. ...

Children were left unprotected and vulnerable to bullying by older boys and this was stated to be a particular problem in Tralee both in terms of physical and sexual abuse. ... one Brother was cited by complainants and by Brothers who had been on the staff in Tralee as 'behaving inappropriately' with the boys. He was on the staff for 20 years and his behaviour was known to at least three Superiors who did not attempt to stop it. ...

The documents revealed that a system of harsh and pervasive punishment existed in Glin during the relevant period. The documents also revealed that Brothers with a known propensity for sexual abuse were transferred to Glin indicating a serious indifference to the safety of children. ...

The physical abuse of boys in Daingean was extreme. Floggings which were ritualised beatings should not have been tolerated in any institution and they were inflicted even for minor transgressions. Children who passed through Daingean were brutalised by the experience and some were damaged by it. ...

A high level of physical abuse was perpetrated by Religious and lay staff in Goldenbridge. The method of inflicting punishments and the implements used were cruel and excessive and physical punishment was an immediate response to even minor infractions. Children were in constant fear of beatings and in many cases were beaten for no apparent reason. A feature of this school was a rosary bead industry that was operated from the school. This industry was conducted in a way that imposed impossible standards on children and caused great suffering to many of them. It was a school that was characterised by a regime of extreme drudgery, both in terms of the rosary bead making and the daily workload of the children. ...

The system of large-scale institutionalisation was a response to a nineteenth century social problem, which was outdated and incapable of meeting the needs of individual children. The defects of the system were exacerbated by the way it was operated by the Congregations that owned and managed the schools. This failure led to the institutional abuse of children where their developmental, emotional and educational needs were not met.

The deferential and submissive attitude of the Department of Education towards the Congregations compromised its ability to carry out its statutory duty of inspection and monitoring of the schools. The Reformatory and Industrial Schools Section of the Department was accorded a low status within the Department and generally saw itself as facilitating the Congregations and the Resident Managers.

The Dublin Commission report is more restricted, concerned only with "the response of Church and State authorities to a representative sample of complaints and suspicions of child sexual abuse by priests in the Archdiocese of Dublin between the years 1975 and 2004".

The report thus comments that -

This Commission had no remit to establish whether or not abuse occurred although it is abundantly clear, from the Commission's investigation as revealed in the cases of the 46 priests in the representative sample ..., that child sexual abuse by clerics was widespread throughout the period under review. This Commission's investigation is concerned only with the institutional response to complaints, suspicions and knowledge of child sexual abuse.

The report notes that -

The Commission received information about complaints, suspicions or knowledge of child sexual abuse in respect of 172 named priests and 11 unnamed priests. (Some or all of the 11 unnamed priests may, of course, be included in the 172 named priests.) After a preliminary examination, the Commission concluded that 102 of these priests were within remit.

It is important in the Commission's view not to equate the number of complaints with the actual instances of child sexual abuse. While a significant number of the priests against whom allegations were made admitted child sexual abuse, some denied it. Of those investigated by the Commission, one priest admitted to sexually abusing over 100 children, while another accepted that he had abused on a fortnightly basis during the currency of his ministry which lasted for over 25 years. The total number of documented complaints recorded against those two priests is just over 70. In another case, there is only one complaint but the priest has admitted to abusing at least six other children.

The Commission examined complaints in respect of over 320 children against the 46 priests in the representative sample. Substantially more of the complaints relate to boys – the ratio is 2.3 boys to 1 girl.

Of the 46 priests examined, 11 pleaded guilty to or were convicted in the criminal courts of sexual assaults on children.

In responding to the question 'The priests – where they are now?' the report indicates that -

Of the 46 priests in the representative sample, 11 are or were members of religious orders. Four of these are dead; four are living within their orders with restrictions on their ministry and activities; two are living within their orders without restrictions and one has become estranged from his order and is living without restriction in another diocese. One priest belongs to a UK diocese and his whereabouts are unknown. Of the 34 priests from the Dublin Archdiocese, ten are dead, 20 are out of ministry and four are in ministry. Of the 20 who are out of ministry, 11 are being financially supported by the Archdiocese and are living under restrictions imposed by Archbishop Martin; nine are laicised.

The fallout has seen the resignation of a handful of senior clergy and expressions of shock in Rome. One might wonder whether similar abuse (and indifference on the part of the state) has occurred in Spain, Portugal and other nations. The report states that -

The volume of revelations of child sexual abuse by clergy over the past 35 years or so has been described by a Church source as a "tsunami" of sexual abuse. He went on to describe the "tsunami" as "an earthquake deep beneath the surface hidden from view". The clear implication of that statement is that the Church, in common with the general public, was somehow taken by surprise by the volume of the revelations. Officials of the Archdiocese of Dublin and other Church authorities have repeatedly claimed to have been, prior to the late 1990s, on "a learning curve" in relation to the matter. Having completed its investigation, the Commission does not accept the truth of such claims and assertions.

The Dublin Archdiocese's pre-occupations in dealing with cases of child sexual abuse, at least until the mid 1990s, were the maintenance of secrecy, the avoidance of scandal, the protection of the reputation of the Church, and the preservation of its assets. All other considerations, including the welfare of children and justice for victims, were subordinated to these priorities. The Archdiocese did not implement its own canon law rules and did its best to avoid any application of the law of the State. ...

The authorities in the Archdiocese of Dublin and the religious orders who were dealing with complaints of child sexual abuse were all very well educated people. Many had qualifications in canon law and quite a few also had qualifications in civil law. This makes their claims of ignorance very difficult to accept. Child sexual abuse did not start in the 20th century. Since time immemorial it has been a “delict” under canon law, a sin in ordinary religious terms and a crime in the law of the State. Ignorance of the law is not a defence under the law of the State. It is difficult for the Commission to accept that ignorance of either the canon law or the civil law can be a defence for officials of the Church. ...

In addition to their clerical education, many of those in authority in the Archdiocese had civil law degrees or occupied prestigious appointments in third level education. Monsignor Sheehy, Bishop O'Mahony and Bishop Raymond Field were qualified barristers. Bishop Kavanagh was Professor of Social Science in University College Dublin where both Archbishop Ryan and Archbishop Connell held high ranking academic posts. Despite their participation in civil society, it was not until late 1995 that officials of the Archdiocese first began to notify the civil authorities of complaints of clerical child sexual abuse.

And on it goes.

Undead and unread?

David Marr, in the April 2008 issue of The Monthly, notes the shamefully low sales of Patrick White and other modernist paragons -

White's last bestseller appeared 25 years ago at the end of an amazing final run that began with the Nobel Prize in 1973, included the mighty Twyborn Affair and climaxed in 1981 with the book that sold more than any other in his career, Flaws in the Glass. Even before his death a decade later, his reputation had begun its long, slow - but not uninterrupted - slide. These days, students and customers shy away from his novels. Alphabetical order doesn't help. He's found in bookshops on the bottom shelves. We buy him on our hands and knees.

... somewhere along the track, for reasons that go deeper than publishers' neglect, we stopped buying the distinguished writers of our own recent past. White was one of three Australians of his generation with big literary reputations at home and abroad. None sells strongly now. Nielsen BookScan, that pitiless surveyor of the trade, tells me that last year White's 13 titles in print sold only 2728 copies. Shirley Hazzard did better: her eight sold 4270 copies. Christina Stead's seven sold 199. That's not a misprint.

One hundred and ninety nine - The Man Who Loved Children, The Little Hotel, Miss Herbert (The Suburban Wife), Letty Fox: Her Luck ...

Meanwhile the Guardian offers UK figures from Nielsen BookScan on sales over the past decade. The 'top 100' include -

1 JK Rowling 29,084,999 (£225.9m)
2 Roger Hargreaves 14,163,141 (£26.6m)
3 Dan Brown 13,372,007 (£74.1m)
5 Terry Pratchett 10,455,397 (£77.2m)
6 John Grisham 9,862,998 (£65.9m)
7 Richard Parsons 9,561,776 (£49.2m)
8 Danielle Steel 9,119,149 (£51m)
9 James Patterson 8,172,647 (£53.8m)
10 Enid Blyton 7,910,758 (£31.2m)
11 Bill Bryson 7,409,656 (£61.2m)
12 Patricia Cornwell 7,355,180 (£49.8m)
13 Jamie Oliver 7,244,620 (£89.5m)
15 Ian Rankin 6,848,039 (£44.3m)
17 Alexander McCall Smith 6,609,779 (£40.6m)
20 Roald Dahl 6,169,406 (£33.8m)
22 Philip Pullman 5,544,376 (£35.8m)
23 Stephenie 'Twilight' Meyer 5,487,313 (£32m)
24 Maeve Binchy 5,476,134 (£37.6m)
25 J R R Tolkien 5,280,406 (£50.6m)
26 Delia Smith 5,269,783 (£58.7m)
27 Stephen King 5,268,577 (£38m)
29 Jeremy Clarkson 4,913,989 (£35.1m)
35 Lemony Snicket 4,220,508 (£23.9m)
36 Andy McNab 4,123,633 (£30.4m)
37 Ian McEwan 4,040,887 (£27.7m)
38 Wilbur Smith 3,871,484 (£30.1m)
39 Michael Connelly 3,785,330 (£23.5m)
40 Sebastian Faulks 3,782,665 (£27.5m)
45 William Shakespeare 3,333,670 (£17.8m)
49 Dave Pelzer 3,217,905 (£20.2m)
50 R L Stine 3,096,584 (£13.1m)
51 Catherine Cookson 3,020,751 (£16.8m)
52 Dean Koontz 3,010,242 (£17.5m)
53 W Awdry 2,991,572 (£9.9m)
55 Jeffery Deaver 2,972,145 (£16.9m)
57 Nick Hornby 2,956,544 (£19.6m)
58 Ben Elton 2,907,294 (£20m)
63 Dr Seuss 2,760,156 (£14.8m)
70 Nigella Lawson 2,616,955 (£39.2m)
71 Robert C Atkins 2,591,073 (£17.3m)
74 Clive Cussler 2,435,718 (£16.5m)
77 Penny Vincenzi 2,358,041 (£14.6m)
78 Charles Dickens 2,341,980 (£9.3m)
82 Jackie Collins 2,295,308 (£14.4m)
84 A A Milne 2,255,346 (£14.5m)
85 Paulo Coelho 2,229,564 (£16.3m)
86 Eric Carle 2,225,336 (£12.1m)
87 Louis de Bernières 2,221,481 (£15.3m)
96 Gordon Ramsay 2,094,376 (£23.4m)
98 Frank McCourt 2,055,939 (£14.9m)
100 Lyn Andrews 2,027,382 (£9.2m)

I'm reminded of benchmarks such as the Australian PLR data (selection here), with the 'top 50' Australian books (by times borrowed from a public library) over the period 1974/5 to 2005/6 including -

1 Bryce Courtenay Tommo & Hawk
2 Bryce Courtenay The Potato Factory
3 Paul Jennings Unbelievable! More Surprising Stories
4 Colleen McCullough The Thorn Birds
5 Paul Jennings Quirky Tails:More Oddball Stories
6 Paul Jennings Uncanny! Even More Surprising Stories
7 Colleen McCullough An Indecent Obsession
8 Bryce Courtenay Jessica
9 Bryce Courtenay Solomon’s Song
10 Paul Jennings Unmentionable! More Amazing Stories

Jennings reappeared on the list at rank 14, 16, 20, 21, 29, 35, 45 and 46. Courtenay was back at 22, 23, 27, 28 and 30. McCullough reappeared at 36 and 37. Four authors account for 30 of the 50 most-borrowed titles.

Revisualising Berne

William Patry notes disagreement about the proposed international treaty [PDF] regarding Improved Access for Blind, Visually Impaired and other Reading Disabled Persons.

The expectation is that the treaty would be consistent with, and indeed advance, the fundamental intellectual property treaties - such as Berne, Rome, and Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS) - and human rights agreements such as the UN Convention on the Rights of Persons with Disabilities.

The treaty aims -

to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired or otherwise disabled in terms of reading copyrighted works, focusing in particular on measures that are needed to publish and distribute works in formats that are accessible for persons who are blind, have low vision, or have other disabilities in reading text, in order to support their full and effective participation in society on an equal basis with others, and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.

The draft of the treaty, which has received broad support from Australia, indicates that -

Contracting Parties [ie nations] agree to undertake certain measures to enable full and equal access to information and communication for persons who are visually impaired or have other disabilities in accessing copyrighted works; ...

(c) Contracting Parties shall be free to determine the appropriate method of implementing the provisions of this Treaty within their own legal system and practice. (Language similar to TRIPS Article 1);

(d) Contracting Parties may, but shall not be obliged to, implement in their law more extensive protections for the visually impaired and reading disabled than are required by this Treaty, provided that such measures do no not contravene the provisions of this Treaty.

Key elements of the proposed treaty include -

4.(a) It shall be permitted without the authorisation of the owner of copyright to make an accessible format of a work, supply that accessible format, or copies of that format, to a visually impaired person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, when all of the following conditions are met:

1. the person or organisation wishing to undertake any activity under this provision has lawful access to that work or a copy of that work;

2. the work is converted to an accessible format, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to a visually impaired person;

3. copies of the work are supplied exclusively to be used by visually impaired persons; and

4. the activity is undertaken on a non-profit basis.

(b) A visually impaired person to whom a work is communicated by wire or wireless means as a result of activity under paragraph (a) shall be permitted without the authorisation of the owner of copyright to copy the work exclusively for his or her own personal use. This provision is without prejudice to any other limitations and exceptions that a person is able to enjoy.

(c) The rights under paragraph (a) shall also be available to for profit-entities and shall be extended to permit commercial rental of copies in an accessible format, if any of the following conditions are met:

1. the activity is undertaken on a for-profit basis, but only to the extent that those uses fall within the normal exceptions and limitations to exclusive rights that are permitted without remuneration to the owners of copyright;

2. the activity is undertaken by a for-profit entity on a non-profit basis, only to extend access to works to the visually impaired on an equal basis with others; or

3. the work or copy of the work that is to be made into an accessible format is not reasonably available in an identical or largely equivalent format enabling access for the visually impaired, and the entity providing this accessible format gives notice to the owner of copyright of such use and adequate remuneration to copyright owners is available.

(d) In determining if a work is reasonably available in (c)(3), the following shall be considered:

1. for developed economies, the work must be accessible and available at a similar or lower price than the price of the work available to persons who are not visually impaired; and

2. for developing countries, the work must be accessible and available at prices that are affordable, taking into account disparities of incomes for persons who are visually impaired.

Consistent with provisions in Australian copyright law, Article 6 of the proposal ('Circumvention of Technological Measures') provides that signatories

shall ensure that beneficiaries of the exception provided by Article 4 have the means to enjoy the exception where technological protection measures have been applied to a work, including when necessary the right to circumvent the technological protection measure so as to render the work accessible.

Article 7 similarly provides that "Any contractual provisions contrary to the exception provided in Article 4 shall be null and void".

Patry tartly - and in my view perceptively - comments that -

A number of developing countries' positions were disappointing in their lack of meaningful support of the proposed treaty. Certainly if those making statements in actual opposition had available to them the minuscule amount the visually impaired have, their views would be quite different. Theirs is a failure both of compassion and a failure to recognize the positive role of copyright in furthering access. Some apparently are willing to sacrifice the neediest in order to hold on to more than they already deserve. It is easy to find reasons not to do something; the mark of a generous and compassionate soul is finding reasons to do something.

Bad Bears

From Edward Tenner's Our Own Devices: The Past and Future of Body Technology (Knopf, 2003) -

Bears cooperate to defeat other human technology; sow bears appear to send cubs into branches to dislodge carefully cached food, and young bears learn from observation how to break open automobile doors and penetrate the flimsy barrier separating the backseat from the food the owners thought they were protecting in the trunk. According to park rangers, who call the practice clouting, bears recognise specific brands and models, for example Honda and Toyota sedans, that are most vulnerable to attack, and use similar techniques on each model. When a particular model and color yield a rich cache of food, bears begin to attack similar vehicles every night. Mother bears show cubs how to pry open rear side doors by bending the door frame with their claws until it becomes a platform for reaching the backseat and trunk partition. Bears also brace themselves against neighbouring cars to break the windows of vans more readily.

More rabbits

Further to today's post on Thomas Austin and the supposed 150th anniversary of the rabbit plague, I note an 1866 report by the Geelong Advertiser that -

A few weeks ago, it was our pleasant duty to inform our readers that acclimatisation was flourishing space at Barwon Park, especially referring to the successful hatching of broods of young pheasants. Since then, however, ill luck has attended them, and no less than eighty birds were carried off last week by an epidemic.

Thanks to the courtesy of Thomas Austin, Esq, the proprietor, whose gamekeeper has kept an accurate account of all rabbits killed during the past year, we learn that the total number picked up was 12,608, and many others, say over 500, were lost. The warren, to all appearances, is as full us ever. Some estimate may be formed of what a small beginning may do when we state that the first and only importation of rabbits made by Mr Austin was in December 1859, and the importation consisted of ten couples, one of which, much to the chagrin of the importer, died a day after landing. It is known that since that time over 50,000 have been caught and killed. The greatest number killed in one day last season was 222, and in looking over the book we find that many days averaged over 150.

The number of pheasants shot last year was 63. The hawks have much militated against the successful breeding of the pheasant, and as many as 1200 of these pests were shot during last year, and and as many as 130 were disposed of last month alone. It is believed that the hares are also prospering, over a dozen young ones having been seen romping about in the cool of the evening.

Before concluding this short narrative of the condition of the preserves at Barwon Park we must tender our thanks for the many pleasant days Mr Austin has given to sporting men, whom he is always glad to see. In fact he is, as he states, willing to give any gentleman a day's shooting so long as he does not bag to sell.

Austin - that practitioner of noblesse oblige - expired in time to escape much of the condemnation as putative father of the rabbit plague and starling plague. His wife Elizabeth (1821-1910) made some amends as founder of the Austin Hospital for Incurables, later the Austin Hospital.

By 1872 a correspondent in the Adelaide Register (where only ten years earlier a writer had sniffed that "the shooting of one of them now and then" will be "a matter of trifling importance") wrote that a -

warning against rabbits should be attended to. I have carefully prevented for years any being turned loose at Mount Lofty, in consideration of the numerous market gardeners around its slopes; but a few weeks ago I saw some running about ... and am told that a distinguished summer neighbour of mine also let some go for future sport. If there is sport, depend upon it there will be no cabbages, carrots, turnips or celery.

Three years later an Act to provide for the Suppression of the Rabbit Nuisance (38 and 39 Vic., 1875, No. 16) became law in South Australia, illustrating questions about identity mechanisms (persons with "written authority") and power.

That Act, provided among other things, that

It shall be lawful for any person authorized in writing in that behalf by the District Council of any district which has been duly constituted and declared a Rabbit district, after twenty four hours' notice shall have been given, to enter any land within such Rabbit District, or any land in the neighborhood thereof, not being another district, whether enclosed or not, at any reasonable hour in the daytime, for the purpose of ascertaining if any rabbits are thereupon, and no such person shall be deemed a trespasser by reason of such entry, or be liable for any damage thereby occasioned, unless the same shall be occasioned by such person wilfully, and without necessity: Provided that any person so authorized shall exhibit such written authority, if required to do so by the owner or occupier of such land, or his authorized agent, and if being so required he shall fail to exhibit such authority, then he shall be liable to be deemed and dealt with as a trespasser. ...

If any person shall wilfully obstruct, hinder, or interrupt person appointed by the Commissioner or any District Council, in the exercise of any power, or authority, vested in any such person by this Act; or shall threaten, assault, or use improper language to any such person whilst in the performance of his duty under this Act, every such person so offending shall, for every such offence, forfeit and pay a penalty not exceeding Twenty Pounds: Provided that no proceeding for the recovery of any such penalty, nor the payment thereof, shall be a bar to any action at law by any such person for or in respect of any such assault, but every such action may be commenced and proceeded with as if this Act had not been passed, bylaw or usage to the contrary notwithstanding.

Similar legislation was enacted in Victoria in 1878. In 1887 the colonies of Victoria and South Australia collaborated, unsuccessfully, in building a 'rabbit proof' fence that stretched for a mere 290 miles.

Rabbits in abundance

This week is reportedly the 150th anniversary of the first 'successful' importation of rabbits in Australia, some of whose descendants are currently frolicking in the wet grass outside my office at UC (and will presumably soon be busy adding to the bunny population).

Scholars disagree about the beginnings of rabbit infestation in Australia and the anniversary is problematical. (Governor Phillip was accompanied by five rabbits in 1787; a dispute between John Pascoe Fawkner and Henry Batman in 1836 featured disagreement about the destruction of rabbits and the Governor Gawler arrived at Port Adelaide in 1840 with "30 trusses of hay, a cask of oil, seven whalers' chests and 16 rabbits".)

During December 1859 some 21 wild European rabbits were released into special pens at the 11,7360 hectare Barwon Park estate at Winchelsea (near Geelong) on Christmas Day 1859. They had arrived from England on the brig Lightning. At Barwon Park, home of squatter and Acclimatisation Society member Thomas Austin (1815-1871), they were fed on lettuce that had been specially grown for them. Austin's nephew - in some accounts his brother - had sent him 24 rabbits, five hares, 72 partridges and some sparrows. The latter have been equally prolific, albeit without the serious environmental damage associated with bunnies.

Having recovered from the voyage the rabbits were released so that Austin and other 'Port Phillip Gentlemen' could go hunting. Sources differ on whether 21 or 24 rabbits did the feral thing. Thomas, brother James and associates released rabbits on other grazing properties in Victoria and NSW, reportedly requesting legislation to protect rabbits.

The Brisbane Courier of 7 May 1864 reports that -

At the meeting of the Council of the Queensland Acclimatisation Society, held last week, reference was made by a gentleman present to Barwon Park, in Victoria, the owner of whom, Mr Thomas Austin, had done much to encourage the importation of English game some years ago, and who now was enabled occasionally to invite his friends to join him in a battue. Since the meeting, the following extract, which is taken from the Geelong Advertiser, has come into our possession:

On Thursday last, Mr Thomas Austin, of Barwon Park, entertained a number of his friends to a shooting party. The guests assembled shortly after nine, and after partaking of a substantial breakfast, proceeded to the place of rendezvous - the keeper's lodge. Here guns and ammunition were waiting, and it having got noised abroad in the neighboring village of Winchelsea that there was going to be a battue with the rabbits, a great many volunteer visitors had collected to partake of the sport and the good cheer which circulates so freely. These, with Mr Austin's own men, formed a goodly array of more than twenty-five. The assembled gentlemen then inspected the aviaries, in the immediate vicinity, where a number of pheasants are still confined for those present; with those are thirty-four blackbirds and thrushes, which Mr Austin brought out with him in the Yorkshire.

He was very successful with them on board ship, as out of forty-four taken on board only, ten died during the voyage. In this spacious aviary a number of trees are growing, and have become so luxuriant that they have forced their heads far above the wire network; and it is Mr Austin's intention, after they have incubated in the spring, to open a portion of the roof and give them their liberty. This locality is admirably adapted for their propagation, as all eagles and hawks are destroyed as soon as "they put in an appearance".

Close to this aviary is a four-acre enclosure, surrounded by wire, and made dog proof, if a strange one should come near, but dogs are prohibited from being at large. In this paddock, containing excellent clover, the hares that Mr Austin brought out with him are turned loose, and it is worthy of remark how successfully Mr Austin carried out his idea; instead of obtaining those that have been for some time in confinement, Mr Austin thought it would be more desirable to obtain wild ones, and a week before the Yorkshire sailed those hares were at large, and out of eleven shipped nine were turned into this paddock. The hare is a very timid animal, and the boxes on board ship were so constructed that they might enjoy great privacy, and Mr Austin, knowing how obtrusively curious people are to see such things when landed, had a spring-cart awaiting the arrival of the trains to convoy them at once to Barwon Park, and the same day that they were put ashore they were turned loose.

The rabbits, which have now become very numerous on the estate, are the English wild rabbit; the original stock was sent to him from the old country by his brother, Mr James Austin. They prefer the long grass in the bends of the river to the sedges and rushes on the plains, making their burrows principally on the bare high ground. Through the long grass various pathways had been cut, to give the sportsmen an opportunity of firing. The beaters, provided with sticks, formed themselves into a straight line, bending the long grass and driving the rabbits before them, and so made them bolt into the open.

Shortly after midnight the keepers had been round netting the warrens, and so kept the rabbits from their holes; and although the beaters were so numerous, they had great difficulty in driving the rabbits before, the rabbits evincing the greatest desire to double back, and showing much repugnance to leave their own particular bond. Mr Austin had given permission to have the cock pheasants shot, and so the sportsmen were constantly on the qui vive for a cock to rise; this also gave an interest to the beaters, for, when a hen pheasant put up, a cry of "ware hen" immediately resounded along their rank. Experience has shown that the most productive preserves number about ten hens to each cock.

Mr Austin opened the campaign by having a bang at a handsome cock in full feather, and which was bagged. About one o'clock the party found themselves again in the vicinity of the keeper's cottage, covered with English ivy, and situated in a lovely little valley adjoining the plantations and preserves. While the sportsmen went inside to partake of the good things produced, the beaters formed themselves into picturesque groups on the green slopes around, enjoying the hospitality and abundance of the proprietor; their happy smiling faces showed that they participated in the day's enjoyment. The bright sunny day, with now and then a passing cloud to soften the glare, the chiaroscuro effect on the landscape, the great variety in the tints of the foliage, produced by exotic and indigenous trees being planted singly and in groups around, formed a coup d'oeil seldom witnessed, and must have been seen to be appreciated.

The midday repast being over, and a short spell for smoking allowed, the sportsmen again sallied forth up one side of the river and down the other, every bend of this winding river offering ample sport and diversion. Pheasants were put up over an area extending for four miles; they are well supplied with food, and they keep to the locality. Last year, however, a hen got away as far as Modowarre, and a native youth was surprised to see a rara avis feeding with his fowls in the morning; he was seen busy loading his gun when a person rode up, and he pointed out the prize he was going to bag, when the horseman told him it was one of Mr Austin's pheasants, and the bird's life was therefore spared, and may be the same bird that has selected the neighbouring forest for her habitation, and was lately seen with a brood of eleven surrounding her.

Sunset closed the "laboring day" for shooting, when the killed consisted of 173 rabbits and five pheasants for seven guns, not a bad day's sport; the amount of killed and wounded left on the field was not ascertained. An excellent dinner, provided with the accustomed liberality of the host, brought to a conclusion a most agreeable day's amusement. "The parish lantern" (a full moon) was provided for those who had to wend their way homeward that night.

Books

Having returned from my road trip to Melbourne with Kruger the WonderDog (what a fine dog he is, and fine company like Orr SC) I'm reading miscellaneous Christmas presents and grazing the Michael Kirby website.

Alan Steinweis's Kristallnacht 1938 (Harvard University Press, 2009) is a concise account, perhaps of most value to novices and from my perspective offering less bite than Saul Friedländer's Nazi Germany and the Jews, Volume I: The Years of Persecution, 1933-1939 (HarperCollins, 1997). It's of interest for its microhistories of participants in the 'night of broken glass'.

Wilfred Prest's William Blackstone: Law & Letters in the Eighteenth Century (Oxford University Press, 2008) considers the author of the Commentaries - praised by one contemporary as the "most correct and most beautiful outline that was ever exhibited of any human science" - and other works. Prest takes issue with Jeremy Bentham's attack on the Commentaries and on Blackstone -

... [a] persistent and sustained condemnation of the misanthropic enemy of reason and reform, 'everything-as-it-should-be Blackstone', a muddled and shallow apologist for the status quo. Making up in critical acerbity what it lacked in humdrum detail. Bentham's Blackstone replaced the conscientious and upright scholar, judge and public man with an even more two-dimensional caricature; that of failed barrister turned stodgy Tory academic and confused textbook apologist for the British Constitution and unreformed common law.

Michael Kirby in 309 Australian Book Review (Mar. 2009) 14–15 noted that "Prest frequently reaches the limits of his source materials" and suggested that "what really matters about [Blackstone] today is not so much his life ... more important would be an analysis of what [Blackstone] wrote, and how, often unthinking, it has influenced the law in lands far from Oxford’s dreaming spires". Blackstone's shopping list is interesting but ultimately unimportant; the reception of his work is fundamental.

Martin Wiener's superb An Empire on Trial: Race, Murder and Justice under British Rule, 1870-1935 (Cambridge University Press, 2009) is far more enjoyable ... lucid, persuasive, insightful. I have yet to get into Legal Foundations of Tribunals in Nineteenth-Century England (Cambridge University Press, 2006) by Chantal Stebbings and In The Common Defense: National Security Law for Perilous Times (Cambridge University Press, 2007) by James Baker. Unmarketable: Brandalism, Copyfighting, Mocketing and the Erosion of Integrity (New Press, 2007) by Anne Moore is marketed - oops, that damn M word - as -

both a scathing critique of corporate marketing's dalliances with the cultural underground and a highly entertaining depiction of the absurdity produced by our advertising-saturated late-capitalist wonderland. Here is a world in which cultural resistance and the DIY underground, once refuges from consumer society, have been repurposed by corporations even as the underground itself emerges as a key demographic to be targeted.

All in all, deliciously ahistorical and self-involved.

Death, dads, texts and taxes

Catching up on reading before I go on The Great Road Trip To Melbourne with Kruger and Co ...

Martin Daunton's lucid Trusting Leviathan: The Politics of Taxation in Britain 1799-1914 (Cambridge: Cambridge University Press 2001) and Just Taxes: The Politics of Taxation in Britain 1914-1979 (Cambridge University Press 2002)

Rachel Potter's 'Obscene Modernism and the Trade in Salacious Books' in 16(1) Modernism/Modernity (2009) 88-104 - incidental reading for the 'Forbidden, Hidden & Censored Books' conference in July next year - and the more insightful 'Dancing with the Devil: Publishing Modern Music in the Third Reich' by Kim Kowalke in (2001) 8(1) Modernism/Modernity 1-41 [PDF] 

Jerome Karabel's The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton (Houghton Mifflin, 2006), of particular interest for comments on the construction of identity, the assessment of intangibles such as 'character' and mechanisms for exclusion of 'undesirables' (eg people who were described as "hebrews", "negroes" and "intellectuals")

Rachel Fuchs' Contested Paternity: Constructing Families in Modern France (Johns Hopkins University Press, 2008)

I've meanwhile been struck by Hilary Mantel's comment at 10 in (2009) LVI(16) New York Review of Books 8-12 on Keith Thomas' The Ends of Life (Oxford University Press, 2009) that -

For every example, as Keith Thomas demonstrates, you can find a counterexample. Some will object that his book is a collage of quotations, a toy box, a magpie hoard: that it does not sustain a thesis. But Thomas' work has always been more about sharing knowledge than winning arguments. In any event, in the field of human behaviour, which is where he has located his efforts, truths are provisional and tentative.

Mantel notes Thomas' references to religious belief -

... many people had trouble envisaging the afterlife; an old Sussex lady on her deathbed, promised that she would soon be in paradise, said that she would rather stay in Lewes.

That sounds quite reasonable to me.

The Globe and Mail - in reviewing Beautiful Pigs: Portraits of Fine Breeds (St. Martin's, 2009) by Andy Case, photographs by Andrew Perris - notes that -

The young Berkshire is a naughty pig with a lively character. Its back is long and level, and it has a high-set tail with well-sprung ribs ... [It] is well up on its toes, enabling it to walk well.

Nothing like a naughty pig to lift the spirits after a wrestle with Bordieu!

Pigs are not malicious or miscreant. Quite the opposite. They are as intelligent and elegant as any animal out there (hygiene and eating habits notwithstanding), they are fiercely maternal, proud, brave, stubborn and sensitive creatures, and they are the source of civilization's greatest side dish (bacon).

Praise the Lord and pass the contribution

A reader's complained that I was rather cruel about practioners of the 'gospel of prosperity' and pentecostal belief systems (singing, shaking, speaking in tongues, exorcisms, bullying of deviationists, denouncing Bruce Springstein as "the high priest of satan"). We should apparently ignore critiques and memoirs such as Behind the Exclusive Brethren (Scribe, 2008) by Michael Bachelard and People In Glass Houses: An Insider's Story of a Life in and out of Hillsong (Black Inc, 2007) by Tanya Levin or criticism by Family Court judges. 

 I was thus interested to see today's SMH item - yes, the time of the year when the mass media are desperate for filler - reporting that newspaper's survey of belief [PDF]. The SMH quotes a response from Anglican Archbishop of Sydney, Peter Jensen, a vocal exponent of the 'gay = abomination' school, who claimed that the survey results show the religious instinct was universal.

There was no denying that increased numbers of people described themselves as non-believers, but this was no boon to the atheist cause, he said. "The decline of Christian faith does not lead to lack of religious belief; it just opens the way for superstition".

Quite so. Notions of a heavenly father with a deep personal interest in every sparrow (albeit a certain inattention regarding several million Jewish kiddies and oldies in the 1940s, not to mention Armenians, tsunami victims and so forth) and a virgin birth, proficiency in conversion of water into wine, resurrection etc etc are presumably scientific rather than mere vulgar superstition. 

 Nearly half of the 1,000 people polled by Nielsen for the SMH reported belief in psychic powers such as extrasensory perception. 41% believe in astrology. 34% believe UFOs exist. Women are supposedly much more likely to believe in God and other phenomena than men, with the exception of UFOs. 63% of the surveyed Australians "believe in God or a universal spirit". 24% do not believe in either God or a universal spirit. 50% reported that religion is "important or very important in their lives", although the survey did not indicate whether that importance was reflected in behaviour and "committed Christians" might of course behave in ways that their irreligious peers consider to be repugnant, indeed illegal. 88% of the faithful indicated that they were either absolutely or fairly certain in their belief. 29% reported that the Bible is "the word of God", "to be taken literally, word for word". (Bad news, presumably for people wearing blended fabrics of animal & vegetable fibre ... stand next to the witches and those who question the righteousness of owning slaves.) 

 63% believe in miracles and 51% claim to believe in angels. 53% believe in life after death; 56% in heaven and 38% believe in hell. 49% expressed a faith in "psychic powers such as ESP"; 41% believe in astrology. 37% of respondents believe in Satan, a tad more than the 34% who believe in UFOs and 22% who believe in witches. 

Regrettably there seem to have been no questions about Elvis or the peregrination of Santa Claus and the Tooth Fairy. The self-professed 'Christian' cohort was asked about specific beliefs regarding Christ. 94% of the cohort believed he was a real person who lived some 2,000 years ago, with 91% believing that he was the son of God but only 72% believing that the mother of Jesus Christ was a virgin. 32% of respondents believe in an evolutionary process "guided by God". 23% believe the Biblical account of the origin of human beings (ie Eve generated from Adam's rib and so forth), affirming that "God created human beings, largely in their present form, at one time in the last 10,000 years or so".

Blood, butchery and barristers

Two defamation decisions out today.

Daniel Snedden (aka Dragan Vasiljkovic) lost his defamation case against The Australian. Snedden had been accused of war crimes in the Balkan. He sued publishers Nationwide News Ltd (ie the local newspaper arm of the Murdoch conglomerate) over a story printed in 2005.

A jury found that the story had several defamatory meanings, including that Snedden condoned the rape of women. (Ethnic cleansing in the region of course featured rape of noncombatant boys and men, but we don't like to talk about that).

The NSW Supreme Court ruled in favour of Nationwide, after the publisher argued a truth defence.

Snedden, who has dual nationality, vowed to appeal. He commented that "We think anyone who read the transcripts and reads this judgement will consider it a disgrace. This is a gross miscarriage of justice". The Federal Court, in Snedden v Republic of Croatia [2009] FCAFC 111, earlier this year allowed an appeal against his extradition to Croatia. A Commonwealth government appeal in the High Court against that decision is under consideration, with observers commenting that if the appeal is unsuccessful the nation will be harbouring a citizen who has been found by an Australian civil court to have committed war crimes.

The SMH reports that -

The Supreme Court is satisfied he committed the war crime of torture, participated in organised rape and admitted committing a massacre during the Balkans war. But Daniel Snedden is free in the community despite attempts by the Croatian Government to extradite him for prosecution.

Also known as Dragan Vasiljkovic or Captain Dragan, he is accused of war crimes while commanding a Serb paramilitary unit in Croatia in the early 1990s and sued for defamation after The Australian reported in 2005 on his alleged conduct during the conflict. ... In the Supreme Court yesterday, Justice Megan Latham found a string of imputations were "substantially true" and Mr Snedden "was loose with the truth when it suited his purposes".

"The systematic abuse, humiliation and deprivation visited upon those whom the plaintiff sought to punish and subdue at the Knin fortress, the old hospital prison and the Sremska Mitrovika prison, was consistent with the plaintiff's stated aim to drive out non-Serbs from the Krajina [frontier]", Justice Latham said. The accounts of electrocution, regular beatings and mock executions, carried out at the behest of, or with the authority of, the plaintiff, were harrowing."

The judgement - not yet available on AustLII - notes disagreement about convictions for offences committed in Australia prior to Snedden becoming a paramilitary.

The Australian editorialised that -

IT was a good day for the freedom of the press yesterday when The Australian was not punished in the courts for publishing the truth. Our victory in a defamation case brought by former Serbian paramilitary commander Dragan Vasiljkovic, also known as "Captain Dragan", involved us conducting a quasi-war crimes investigation in the former Yugoslavia in order to defend ourselves in a civil court in Sydney. We incurred high costs in marshalling chilling testimony from Vasiljkovic's Croatian and Bosnian victims. To prove that he raped a woman and committed the war crime of torture during the war in the former Yugoslavia in the early 1990s meant we undertook work normally left to the criminal courts or The Hague, albeit with a less onerous burden of proof.

That we were compelled to take this course of action should concern anyone with a commitment to justice, press freedom and the public's right to know. After our 2005 publication of Vasiljkovic's actions, Croatia began pursuing him for alleged war crimes. Our report prompted a defamation case fought on Vasiljkovic's behalf by Clive Evatt QC. Common sense suggested any war crimes process should precede the defamation hearing. Instead, we were forced to defend our publication without assistance from Croatia, whose files remained closed to us.

It would have been easier -- and cheaper -- to settle but we had strong evidence to back a story that we believed was manifestly in the public interest. Our decision was vindicated by yesterday's judgment but we face further action from Vasiljkovic, who has taken another defamation case against us over similar allegations.

It is time for the Law Reform Commission to take a close look at the way defamation law is being played out since the capping of damages and consider whether this is leading to an increase in litigation. Defamation actions are expensive to defend and plaintiffs generally do not have to produce any evidence of an ability to pay costs if they lose.

Mainstream media outlets, like our own, accept the ethical responsibility to pursue issues in the public interest. It is our core business to reveal stories such as that of "Captain Dragan". But it is not clear the public interest is served when the blogosphere defames with impunity, while litigants target big media companies that continue to pursue their job of publishing the truth.

Meanwhile the Supreme Court has found in favour of Fairfax Media (publisher of the Sydney Morning Herald) and critic Matthew Evans, whose memoir recently featured in this blog.

They had been sued by Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric, the owners of King Street Wharf restaurant Coco Roco, over Evans' September 2003 review of that venue. He referred to Coco Roco as "a bleak spot on the culinary landscape", slammed the food ("more than half the dishes" he tried were "unpalatable"), described the restaurant's overall value as "a shocker" and gave it a score of 9/20 (ie in the "stay home" category). Coco Roco went into administration in March 2004.

In the initial case leading barrister Clive Evatt alerted the jury that he had it on good authority that "defendants are stoned to death for defamation in Serbia". The jurors found that the review did convey imputations that the restaurant sold unpalatable food and provided bad service. However, that was not seen as defamatory. The jury also found that the review did not convey imputations that prices were excessive or that the owners were incompetent restaurateurs.

The 'Coco Rico trio' then appealed, arguing that what the jury found was unreasonable. In Aleksandra Gacic & v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175 [here] the NSW Court of Appeal agreed with that argument, finding that it was defamatory to say the food was unpalatable and the service bad. The appeal court referred the question of whether the newspaper imputed the owners were incompetent back for another jury trial.

Fairfax and Evans next appealed to the High Court, arguing that the Court of Appeal exceeded its powers in rejecting the jury decision. In 2007 the High Court ruled 6-1 in favour of the trio in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 235 ALR 402 [here]. Justice Michael Kirby disagreed with the finding that no reasonable jury could find it wasn't defamatory to declare a restaurant sold bad food and offered poor service, perceptively commeting that on matters such as criticism of a restaurant's food and service, jurors were much more likely to reflect community standards than judges and that "astonishing as it may seem, judges may occasionally lack a sense of irony or humour".

The High Court found that the review conveyed three defamatory meanings -

that Coco Roco sold some unpalatable food, that it provided some bad service, and that the trio were incompetent restaurant owners because they employed a chef who made poor quality food.

Crucially, there are defences in dealing with those meanings. They were successfully raised when the dispute returned to the Supreme Court for further trial of the undetermined imputation, for consideration of any defences available to Fairfax and Evans, and for the questions of damages. Legal costs mounted and the trio had meanwhile been the subject of bankruptcy proceedings, eg Banov v Ciric [2008] FMCA 353 [here].

Justice Ian Harrison in the Supreme Court ordered the former restaurant owners to pay the legal costs of Fairfax and Evans. He found the defence of comment had been established in relation to the three meanings. He also found the defence of truth had been established in relation to the statement regarding some bad service.

Exit Big Liz

The Victorian Attorney General, Rob Hulls, has announced that from 1 January 2010 criminal legal proceedings in state law will be brought in the name of the Director of Public Prosecutions (DPP) rather than in the name of the Queen, ie the rather rich lady who is head of an established church, lives in another country and got her job (for life) by being her father's daughter.

Reference to the DPP rather than to Ms Windsor is not particularly revolutionary; she's already been removed in legal proceedings in Tasmania and Western Australia. The change - effected through the Criminal Procedure Act 2009 (Vic) - has, however, apparently caused some diehard monarchists to suffer deep distress: I had visions of them spraying the cornflakes over the doily or perhaps choking on a kipper as they read the sad sad news.

The Age (it's Christmas, after all, news is slow and devotees of the idiot box are suffering from Carbonhagen Fatigue) made a bid for attention by announcing that -

Monarchists and republicans have gone to war over the State Government's decision to dump the Queen from Victoria's legal system.

Supporters of the Queen yesterday accused Attorney-General and Acting Premier Rob Hulls of trying to transform Victoria into a republic by stealth.

But Mr Hulls, an avowed republican, hit back, saying monarchists were inventing ludicrous conspiracy theories when all he was trying to do was modernise the state's justice system.

Oh dear, diddums, as one of my feistier students is wont to say.

The A-G reasonably explains that the change reflects his Government's "commitment to modernise and simplify laws" -

Referring to the Queen is outdated. Substituting the Director of Public Prosecutions (DPP) for the Queen or Regina reflects the legal and political independence from the United Kingdom and its monarch that has been achieved by Australia. ... This is a further step to bring our legal system into the 21st century.

It is also consistent with the passage of the Australia Acts which terminated the power of the United Kingdom Parliament to legislate for Australia, removed the ability of the Queen to disallow or suspend federal or state laws, and abolished appeals from the High Court to the Privy Council.

The change followed removal in 2000 of the requirement for new lawyers to swear an oath of allegiance to the Queen and substitution of 'Senior Counsel' for 'Queens Counsel' (the latter perhaps being more regretted by senior members of the profession than deletion of references to Her Majesty.

Painting a halo on the pig

Given the importance of religious organisations (or ostensibly religious organisations) for the delivery of social services, the tax and other advantages provided by the state and their colonisation of the commercial sector - turf farming, hospitals, pathology services, property development, retailing that's as uninhibited as overtly commercial competitors - it is heartening to see the announcement by the Australian Competition & Consumer Commission (ACCC) of successful action over misrepresentations by Mercy Ministries Incorporated and Mercy Ministries Limited.

Painting a halo on the pig is not, it seems, a licence to breach the Trade Practices Act 1974 (Cth).

The ACCC has indicated that it has gained court enforceable undertakings (which includes payment) from seven former directors of the Mercy Ministries entities regarding "misrepresentations".

Mercy Ministries is a "not-for-profit Christian based charitable organisation" associated with the controversial and politically powerful Hillsong group. It offered a residential counselling program to young women affected by issues such as eating disorders, unplanned pregnancy, depression, self harm, substance abuse and the effects of sexual or physical abuse. The program was offered whilst the young women resided in a Mercy Ministries home.

The ACCC indicates that between January 2005 and June 2008 Mercy Ministries misrepresented (in brochures and on its website) that its services were provided for free. However the majority of residents were required to assign their Centrelink payments (ie welfare payment from the state) to Mercy Ministries for the duration of their stay. The Lord it seems, helps those who help themselves in an Australian manifestation of the US 'gospel of prosperity' (a gospel perhaps currently being questioned by televangelist Oral Roberts, who this week has gone to the big cash register in the sky).

The ACCC was also concerned that Mercy Ministries "misrepresented that it offered professional support" from psychologists, dieticians, general practitioners, social workers and counsellors. Alas, "the level of professional support was not available as represented". The ACCC notes that "Mercy Ministries did not employ this range of professionals". Access to external professionals was 'facilitated' upon request from residents, although it's unclear whether the consumers were instead encouraged to rely on prayer. (Some critics have alleged that Mercy also engaged in exorcism.)

The deliciously succinct Section 52 of the Trade Practices Act prohibits corporations from engaging in conduct that is misleading and deceptive or is likely to mislead or deceive. Section 53(aa) prohibits them from falsely representing that services are of a particular standard, quality, value or grade. Section 53(e) prohibits them from making false or misleading representations with respect to the price of goods or services. Individuals responsible for the conduct or management of a corporation are prohibited from knowingly causing or permitting the corporations to engage in such conduct.

Oops, that was bad news for the mercy business. The ACCC indicates that the former directors of Mercy Ministries Inc/Ltd -

* acknowledge that they were persons ultimately responsible for the conduct of Mercy Ministries, and admit its conduct was false, misleading and deceptive, and likely to contravene sections 52, 53(aa) and 53(e) of the Trade Practices Act 1974
* undertake to attend annual trade practices compliance training for three years.

Undertakings by those former directors - Mark Zschech, Darlene Zschech, Peter Irvine, Mark Caldwell, Stephen Crouch, Young Pil (Phil) Sohn and Clark Pearson - include provision of a signed joint letter of apology to past residents in the relevant period. The undertakings also include an offer of a voluntary payment of $1,050 - small but a signal that Mercy's words were awry - to the people affected by the conduct.

ACCC chair Graeme Samuel said -

Given the vital role charitable organisations have in our society, and the trust placed in them, it is imperative that their conduct is of the highest standard, especially in their dealings with vulnerable and disadvantaged members of our community. The utmost integrity is expected from charities - by the ACCC and the public at large - and it should be delivered.

The SMH reports that -

Hillsong Church said in October it had cut ties with the group. At the same time, Mercy Ministries announced it was closing its Sydney home, citing "extreme financial challenges and a steady drop in our support base".

Moles and rats

No, not Wind in the Willows. The Australian Communications & Media Authority (ACMA), the national telecommunications regulator, reports that the Federal Court in Brisbane today imposed $6.5m in penalties against Scott Moles and Jobspy - two further respondents in proceedings brought by ACMA against SMS spammers.

Those penalties are in addition to $15.75m imposed on five other respondents earlier this year, notably Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 2) [2009] FCA 887 (highlighted here and here), bringing aggregate penalties to $22.25m. The hearing in relation to Scott Gregory Phillips, the final respondent, is due to resume on 8 February next year.

In today's judgement the Federal Court hit Jobspy Pty Ltd with a $4m penalty; Scott Mark Moles received a $2.5m penalty.

ACMA had alleged that Jobspy and Moles were involved in a complicated scheme that featured creation of fake dating website profiles to obtain the mobile numbers of genuine dating site users. Those mobiles were then sent messages from people pretending an interest in meeting and forming a relationship. Users who responded to the messages were charged approximately $5 per message, rather than the usual opportunities of heartfelt love and undying emotion. ACMA alleged that the scheme cost Australian mobile users more than $4m since late 2005.

Genetic Info privacy and Forensic Databases

National Guidelines for health practitioners in the private sector on the Use and disclosure of genetic information to a patient’s genetic relatives under Section 95AA of the Privacy Act 1988 (Cth) [PDF] were issued by the NHMRC on 27 October this year and came into effect today.

The Guidelines implement changes in 2006 to the main national privacy statute. They specify requirements that must be met by private sector health practitioners who choose to use or disclose genetic information without patient consent under National Privacy Principle [NPP] 2.1(ea). Disclosure of genetic information without consent must be in accord with NPP 2.1(ea) and the Guidelines.

The NHMRC notes that, in contrast to other guidelines for clinical settings developed by the NHMRC, the Guidelines have been issued with the approval of the Privacy Commissioner (under section 95AA of the Privacy Act) as the means of implementing the amendment to the legislation.

In summary the Guidelines are as follows -

1 Use or disclosure of genetic information without consent may proceed only when the authorising medical practitioner has a reasonable belief that this is necessary to lessen or prevent a serious threat to the life, health or safety of a genetic relative.

2 Specific ethical considerations must be taken into account when making a decision about whether or not to use or disclose genetic information without consent.

3 Reasonable steps must be taken to obtain the consent of the patient or his or her authorised representative to use or disclose genetic information.

4 The authorising medical practitioner should have a significant role in the care of the patient and sufficient knowledge of the patient’s condition and its genetic basis to take responsibility for decision-making about use or disclosure.

5 Prior to any decision concerning use or disclosure, the authorising medical practitioner must discuss the case with other health practitioners with appropriate expertise to assess fully the specific situation.

6 Where practicable, the identity of the patient should not be apparent or readily ascertainable in the course of inter-professional communication.

7 Disclosure to genetic relatives should be limited to genetic information that is necessary for communicating the increased risk and should avoid identifying the patient or conveying that there was no consent for the disclosure.

8 Disclosure of genetic information without consent should generally be limited to relatives no further removed than third-degree relatives.

9 All stages of the process must be fully documented, including how the decision to use or disclose without consent was made.

Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database, s report by the UK Human Genetics Commission last month, comments

The National DNA Database (NDNAD) was established in 1995 and now contains the DNA profiles of approximately five million UK citizens. There has been little concerted public opposition to the rapid growth of the database in the UK, although it cannot be inferred from this that all aspects of the database command widespread support. Through public engagement activities such as the 2008 Human Genetics Commission (HGC) Citizens’ Inquiry and subsequent public consultation, we are aware of the existence of significant concerns that have never been fully addressed. These concerns are the starting point for our deliberations. 

We consider the development of the database as the coming together of distinct developments in genetics science, police record-keeping and information technology (chapter one). We discuss the particular technologies in use and make the distinction between a biological sample and a DNA profile. We identify the danger that reliance on the use of the database as an investigation strategy could lead to irreversible evolutions in policing practice that make commitment to the database a fait accompli. 

We consider the development of the legislative conditions for the database, principally by successive amendments to the Police and Criminal Evidence Act 1984 (chapter two). We find that the purpose of the database has altered over time and has never been stated in sufficiently clear terms. We discuss the case of S and Marper v. The United Kingdom and identify two limit cases (a database comprising profiles of only convicted offenders and a whole-population genetic database). We describe the problem of justifying any middle path (i.e. holding profiles of some, but not all, people who have not been convicted) as a challenge to the legal ‘presumption of innocence’ on the one hand or, if this can be overcome, to the evidence that would distinguish individuals on the basis of the risk they pose to society. In order to provide clarity and control of the purpose of the database we recommend that the National DNA Database should be established in law through new primary legislation. The permitted uses of the records constituting the National DNA Database should be simply, unambiguously and explicitly defined in legislation, and any use of the database that falls outside those permitted uses should be made an offence subject to strict penalties. Any provision made for amending those uses through delegated legislation should be limited in scope in the primary legislation. 

We examine expressed attitudes to DNA and genetic information (chapter three) in order to understand why people might feel that holding DNA profiles on a forensic DNA database is a particular interference with their privacy. We consider four ways in which genetic information might be seen as exceptional compared with other sorts of information. We examine the argument that those who have nothing to hide have nothing to fear from the NDNAD and examine possible harms including the risk of adventitious matches, inadvertent discovery of unknown biological relationships, and breaches of data security. The claim that those whose profiles are retained are in a distinct relationship with the state amounting to ‘genetic probation’ is discussed. We recommend that the legislation that establishes the National DNA Database should be accompanied by a full privacy impact assessment with advice from the Information Commissioner, so that these impacts can be considered when the legislation is debated openly in Parliament. 

We examine the social consequences of the NDNAD, in particular its disproportionate effect on certain sections of the population including young people, black and minority ethnic groups, and people with mental health problems. We recommend that new guidance is given on when it is appropriate to take a DNA sample following arrest and to record a resulting DNA profile on the National DNA Database; the guidance should have regard to the circumstances of the arrest (including the nature of the offence of which the arrestee is suspected). Furthermore, we recommend that an independent panel reviews, at regular intervals, evidence relating to arrests and the taking of DNA samples, in order to ensure that (1) the guidance is sufficiently robust and (2) the guidance is being appropriately followed. In order to ensure that the risk of stigmatising particular groups is minimised and attention is given to disproportionate impacts we recommend that the legislation that establishes the National DNA Database should be accompanied by a full equality impact assessment so that these impacts can be considered when the legislation is debated openly in Parliament. In order to express solidarity and to foster greater trust and co-operation between the police and the communities they serve we recommend that all serving police officers, and those whose professional duties require or permit them to come into contact with crime scenes or crime-scene samples, should have their DNA profiles recorded on the Police Elimination Database and retained; this requirement should be a condition of employment. We consider the position of those who ‘volunteer’ to provide profiles for inclusion on the NDNAD and agree with other commentators that consent should be freely given and capable of being withdrawn. We recommend that the statutory framework for the National DNA Database should include provisions relating to consent which, as a minimum, should make it unlawful for records derived from volunteer samples to be retained in the absence of a validly obtained and subsisting consent. 

We consider the suggestion that a whole-population database would provide a solution to the disproportionate representation of certain groups under the current arrangements but remain convinced that the need to avoid discriminatory consequences is not in itself a sufficient reason to institute a whole-population database. 

Having concluded that the balance of argument is against the general threat of crime as a justification for retaining DNA profiles from unconvicted people in general, we discuss how the usefulness of the database as a tool to identify offenders might provide a justification for retaining profiles from those most likely to offend (chapter four). Two problems with this approach are discussed: (1) how those at risk of future offending can be so reliably identified as to licence a prospective interference with their privacy and (2) defining and evaluating the ‘forensic utility’ of the database as an investigative strategy. We suggest how a definition of ‘forensic utility’ should be approached and the measures that are needed to ensure it is properly evaluated. We recommend that the National DNA Database Strategy Board should define and consult widely on an appropriate definition and acceptable measures of forensic utility. These should support the evaluation of the role played by the National DNA Database in the identification of offenders, while making it feasible to collect prospectively the evidence necessary for the evaluation in an operational context. Given the gravity of the consequences of basing decisions about the scope of the database and the retention of individual profiles on their utility in crime management, public and independent scrutiny are necessary. We support the efforts that are currently being made by the National DNA Database Strategy Board to identify and provide meaningful information that can be placed into the public domain, and we recommend that data supporting evaluation of the forensic utility of the National DNA Database should be collected and published by the National DNA Database Strategy Board or the National Policing Improvement Agency National DNA Database Delivery Unit. An evaluation of such data should be conducted by an independent body and placed in the public domain. 

We consider arguments for the retention of biological samples after a DNA profile has been extracted from them. We do not find any of these convincing and, in any case, they are far outweighed by the concerns already identified about the further uses to which they may be put. Therefore we recommend that there should be a move towards the destruction of subject samples when profiles have been loaded to the National DNA Database; and that the UK should continue to support efforts to standardise sets of markers with other countries in Europe and elsewhere with whom the sharing of data for criminal intelligence purposes may be desirable. 

We turn to the future (chapter five) and consider ways in which the utility of the database might be increased: by increasing the size or improving its composition, by the introduction of new technologies for analysing samples and protecting individual privacy, and by introducing enhanced approaches to data mining. We identify the potential for both beneficial and harmful ‘function creep’ and for ‘function leap’ that would involve co-opting the NDNAD to an ulterior and more urgent purpose. We consider briefly changes in social conditions that might make this either more likely or more tolerable. We consider sharing and linking data both with other databases and with forensic databases in other jurisdictions, and we recommend that robust processes should be developed to control international data sharing and that these should be subject to appropriate monitoring in order to ensure that (and to determine whether) the necessary data, and no more, is being shared or exchanged. We reiterate our view (chapter six) that holding the DNA records of innocent people fundamentally alters how suspicion, guilt and innocence function in the relationship between the citizen, society and the state. 

We recommend that the Government supports continuing national debate, informed by the publication of relevant evidence, that addresses explicitly the extent of and justification for the interference with personal privacy inherent in retaining personal DNA profiles. The debate should address the basis on which a distinction may be made among unconvicted individuals so that the collection and retention of DNA profiles of some of them, but not all, would be acceptable. Whatever measures are put in place in the interim to comply with the S and Marper judgment we recommend the establishment of a Royal Commission on the National DNA Database to give focus to, and to learn from, the public debate, and to ensure that its outcomes will be taken forward and reflected in future framework legislation. We confirm the conclusions of our Citizens’ Inquiry that there is a need for better understanding of the role of DNA in police investigations, to foster increased trust and co-operation between the public and the police. We recommend that more, and more reliable, information about the National DNA Database is made widely available, in particular evidence of its usefulness in investigating crime and leading to the conviction of offenders. To represent the different perspectives that people have and the values that people bring to bear when discussing the NDNAD we identify six ‘ideal types’ that we have abstracted from our various public engagement activities. Having distinguished these types we identify the principles that they share in common and the key point of divergence – the challenge the NDNAD represents to the presumption of innocence. 

Finally, we set out some practical measures to improve the governance of the database. While we appreciate the efforts made to increase openness by the NDNAD Strategy Board, nevertheless we recommend that an independent body be established to oversee the management and use of the National DNA Database, and that this body should conduct its business in an open and transparent way to the fullest extent that the operational sensitivities of policing will allow. In order to ensure that proper consideration is given to requests to remove DNA profiles from the database we recommend that clear and explicit rules for the removal of samples/profiles from the database be drawn up so that consideration and, if necessary, argument can be addressed to whether a given case falls under that rule. Consistently with our other recommendations concerning the establishment of the database in law, we recommend that these rules should be stated in primary legislation. To ensure that these rules are properly implemented and to reduce the barriers (of difficulty and cost) currently faced in securing removal of DNA profiles from the NDNAD we recommend that an independent body be empowered to consider appeals against rejection by a Chief Officer of an application to remove a DNA profile from the National DNA Database. 

A key finding in relation to the evidence surrounding the NDNAD is that there is currently insufficient evidence available to demonstrate its forensic utility, certainly to the extent that its proven usefulness might justify greater intrusions into individual privacy. We are particularly concerned that no deliberate and appropriate efforts appear to have been made to redress thisprospectively. Therefore we recommend that the National DNA Database should have in-built reporting systems properly designed with the assistance of those with appropriate academic expertise to provide information necessary to demonstrate forensic utility and for equality and privacy impact assessments. In order to ensure that the evidence is brought to bear on NDNAD profile retention policy as it emerges we further recommend that an annual review be undertaken, informed by the reporting systems we have recommended, of the forensic utility of the National DNA Database and that the review should draw out strategic and policy proposals for the management and use of the database. 

Finally, given the enormous significance of the ethical issues raised by the database, and particularly its role in approving research using the database, we recommend that the National DNA Database Ethics Group be placed on a firmer footing: members should be remunerated (as for the majority of other public bodies), and the secretariat strengthened to support its work. Its independence from the Home Office should also be increased, as should its capacity to review and authorise research applications.