Bikie Law

I've recently noted so-called 'bikie control order laws' in Australia (eg here and here) and New Zealand (here), which pose questions about identification, jurisprudence, the politics of law-making and the practicalities of law enforcement in dealing with people who really don't want to obey the law (indeed may revel in being labelled as offenders).

It was thus interesting to see that the Supreme Court of Australia, in Totani & Anor v The State of South Australia [2009] SASC 301, has ruled that key elements of the Serious and Organised Crime (Control) Act 2008 (SA) [here] are invalid.

The decision involves a challenge by Hudson and Totani of the Finks Motorcycle Club against the Act. That statute has been promoted as "targeting organised crime" - aka Outlaw Motorcycle Gangs (OMG) - and allows for control orders against recognised members of motorcycle clubs. The effect of those orders to prohibit (criminalise) people who are the subject of those orders from associating with each another in most circumstances.

The Finks were the first targeted under the SA statute. The lawyers for Totani and Hudson argued that the orders were unconstitutional, on the basis that magistrates were given no choice but to impose them. The Court was asked to rule on

1. Is s 10(1) of Act a valid law of the State of South Australia?
2. Is the declaration by the Attorney-General [affecting the organisation] void and of no effect?
3. Is s 14(1) of the Acta valid law of the State of South Australia?
4. Is the control order in respect of [Mr Hudson] made on 25 May 2009 void and of no effect?

In a majority decision the full Supreme Court ruled that ss 10(1) and 14(1), the parts of the legislation governing control orders, are invalid. The Government has been ordered to pay costs for the bikies' lawyers.

Bleby J stated that

... it can be seen that the process of depriving a person of their right to and freedom of association on pain of imprisonment for up to five years, although formally performed by a State court which exercises Federal jurisdiction, is in fact performed to a large extent by a member of the Executive Government in a manner which gives the appearance of being done by the Court. But the process is devoid of the fundamental protections which the law affords in the making of such an order, namely the right to have significant and possibly disputed factual issues determined by an independent and impartial judicial officer and the right to be informed of and to answer the case put against the person.

The statutory requirement embodied in s 14(1) that the Court must act without question on a declaration which represents the finding of the Attorney-General on matters critical to the making of the control order, and without the right to a fair hearing, means that the judicial function actually performed by the Magistrates Court is significantly impaired in a manner which is incompatible with its institutional integrity. The difficulty is not removed by providing a right of appeal to this Court. The Attorney-General’s certificate is equally binding on this Court which has its own institutional integrity impaired in the same way.

Attorney-General Michael Atkinson indicated that the SA Government is considering a High Court challenge or amending the legislation.

As a Government we are willing to test the constitutional boundaries in order to take the fight to the outlaw motorcycle gangs. So we don't feel the least embarrassed or regretful that we took the fight up to the gangs to the very limit.

Meanwhile Adelaide Magistrates Court has dismissed seven control orders made against Finks members and three applications for orders under the legislation.

Craig Caldicott, a lawyer representing the Finks, commented that

We've said from day one that section 14 of the is invalid, it's draconian and it's just basically un-Australian. It means that once more the civil liberties have triumphed to a certain extent.

The ABC quotes "Motorcycle club member Shaun McGrath" as applauding the ruling on the basis that the legislation eroded civil rights.

We're pretty excited that this ruling has been coming down, this law was ethically and morally wrong, just plain bad. Civil rights does have a leg to stand on in South Australia.

Fancy that, a bikie who remembered his Kant, Raz or Finnis.

I'm reminded of Finnis after reading his 20 page 'H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher' (Oxford Legal Studies Research Paper 30/2009 here), which

offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963)

If you are fan of Finnis it will presumably hit the spot. My eyebrows, grizzled tho they are, were raised on reading Denningisms such as

European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia's or the Levant's.

The jeremiads on private wickedness - upmarket Pat Buchanan or Fred Nile that makes me want to go off and play tonsil hockey with the auto-icon of Jeremy Bentham - includes the usual denunciation of consensual same sex activity

To take up the issue on which Hart chose to focus—those who actually judge homosexual acts, like other non-marital sex acts, immoral, while they might grant that the private homosexual sex acts of two already morally corrupt adults in private do no harm, can argue with force that predisposing children to approve of adult homosexual acts, and to be disposed to engage in them when of age, is gravely and unjustly harmful to the child and to society, since it involves the child, and eventually perhaps the society, in a gross misunderstanding of the contribution sex acts have to make—and of the act-descriptive conditions without which such accts cannot make it—to marriage as the indubitably most favourable and fairest milieu for the procreation and upbringing of children and for the lifelong fulfillment of the married persons themselves.

dot au DNS Industry

The Supreme Court of Victoria in Australian Style Pty Ltd v .au Domain Administration Limited [2009] VSC 422 has upheld a decision by auDA, the dot-au regulator, to restrict the activity of registrar Bottle Domains, controlled by controversial entrepreneur Nicholas Bolton.

Bolton had earlier gained national attention over efforts to by Bolton, through his Australian Style, to wind-up Multiplex Prime Property Fund and BrisConnections. The latter of particular interest to me as an illustration of identity issues, because some investors had sought to evade liabilities by ostensibly transferring their stake in the ailing infrastructure company to individuals by the name of M Mouse and D Duck.

In January this year the Australian Federal Police (AFP) investigated hacking of Australian Style's customer database and that of its subsidiary Bottle Domains. Credit card information from the databases had been put up for sale on the internet. It is reported that personal details from 40,000 of Australian Style's 60,000 customers were downloaded, including the complete credit card details of some 25,000 people.

The good news is that a 22 year old Perth man was been arrested over the hacking and has been charged with dishonestly dealing in personal financial information. The bad news is that auDA, in investigating the incident (alerted by the AFP's Australian High Tech Crime Centre in accord with a standard information exchange protocol) and the registrar's handling of the data breach, discovered that the first breach of the Bottle Domains customer database had occurred in 2007. Bolton and Bottle Domains had failed to notify auDA of that breach.

As a consequence of that failure, auDA invoked its agreement with registrars in terminating the accreditation of Bottle Domains. Activity as a dot-au registrar (ie popularly, albeit inaccurately, known as 'selling' .au names) is dependent on the registrar's compliance with conditions in that registrar agreement. auDA has the power, under contract law - consistent with the safety-net authorisation provided by the Telecommunications Legislation Amendment Act 2000 (Cth) - to terminate the accreditation of registrars. Termination is an appropriate action by auDA in carrying out its responsibilities.

Bolton responded by taking auDA to court, with Justice Hargrave ruling in favour of the regulator. Bottle Domains will no longer be able to operate as a registrar for dot-au domain names. Three other domain name registrars controlled by Bolton (eg Domain Central and Explorer Domains) will be reviewed by auDA, which has questioned his actions after the discovery of three separate security breaches.

The case is interesting because auDA had ordered Bolton to warn his customers of the security breaches. The Court found that he had changed the agreed wording of that letter and had deliberately omitted a warning for customers to monitor their credit card details and accounts. Justice Hargrave stated that those changes had "the obvious intention of downplaying the seriousness of the security breach".

The Court was critical of Bolton's handling of the breaches, stating that Bolton delayed handing over credit card information to the AFP - "This is an early example of Mr Bolton seeking to downplay any risk that credit card information had been or may be fraudulently used".

It appears to have been unimpressed by Bolton's explanation that he sent the wrong letter to customers as a result of a "cut-and-paste error" caused by having two versions of the letter open on his computer screen. That explanation, used by some law undergrads in plagiarism mode, was described by Justice Hargrave as "improbable".

In my view, whatever work pressures may have presented themselves to Mr Bolton and Mr Steven at this time, it is highly unlikely that they would have authorised the defective e-mail to be sent if they had read it before sending it to the responsible staff for despatch. There are very significant differences between the amended e-mail and the defective e-mail. The e-mail was being sent to approximately 40,000 registrants about a serious matter. It is highly unlikely that Mr Bolton would not have noticed that the e-mail he was authorising to be sent was not in the form of the amended e-mail. After all, only a few hours earlier he had proposed a critical amendment to the agreed e-mail, by the deletion of the reference to the need for registrants to carefully monitor their credit card transactions.

The Court stated that the 'error' was was "a deliberate decision", that Bolton had "failed to act in good faith" and had demonstrated "an extraordinary indifference to the effect of credit card fraud upon its victims". Timely notification of the initial security breach might have prevented the later misuse of the credit card details.

The case is also of interest for a demonstration of auDA's authority in relation to registrars, as a court's interpretation of obligations in the registrar agreement and as an illustration of bad practice among parts of the DNS industry (eg among some dot au registrars).

Dead Hands and Cold Cash

Having got rid of another article and the 'Undead & the Law' conference paper - were it not for the good humour of the paper's co-author I'd put a stake through the paper's heart (or perhaps my own) - I'm now reading Lawrence Friedman's Dead Hands: A Social History of Wills, Trusts and Inheritance Law (Stanford University Press, 2009) and Stephen Norwood's The Third Reich in the Ivory Tower: Complicity and Conflict on American Campuses (Cambridge University Press, 2009). At lunchtime I dipped into The Critical Criminology Companion (Hawkins Press, 2008) edited by Thalia Anthony & Chris Cunneen but gave up after the bruschetta pizza - yummo - started to transfer onto the page rather than into my mouth. Top marks, btw, to the pizza gurus at Cafe Mizzuna!

Friedman presents an engaging introduction to the history of US law about dead hands and cold cash, including trusts, will contests, perpetuities, charitable gifts and foundations, and of course death and taxes. It is a work in the style of his American Law in the Twentieth Century (Yale University Press, 2002): a clear exposition of key principles and landmarks, with an emphasis on accessibility (good undergrad fodder) rather than depth.

Norwood is more controversial, judging by the reviews, and from an initial trawl appears to be condemning institutions, academics and third parties for what may often have been a profound lack of imagination or indifference rather than deep partisanship with the Nazi regime and the academic enthusiasts in Germany. I suspect that much of the time, prior to 1941, the institutional stance was 'business as usual' and 'we are above politics' or 'can ameliorate those few exceptional abuses', the same stance evident in relations between Australian universities and autocracies such as the People's Republic of China. Twas ever thus?

The book offers a sidelight on Jeff Sparrow's Communism: A Love Story ( Melbourne University Pres,s 2007), which despite its title is a biography of Guido Baracchi, the communist intellectual, journalist, playboy, and friend of Lesbia Harford and Katherine Susannah Prichard. He was once described as "Melbourne's Lenin". Unlike Vladimir L he was interested in art, good food, wine and - more importantly - didn't engage in the murder of very large numbers of people.

I was going to say "the famous Guido Baracchi" but after sitting in on a journalism tute last night where undergrads were deliciously unaware of Watergate, Richard Nixon or Gough Whitlam I'm wary about assumptions regarding collective memory.

A salient moment in the biography is the account ("there aren't any happy endings here") of emigres to the people's paradise encountering the realities of repression, picked off one by one in an atmosphere of indifference or even celebration on the part of the true believers.

The OGPU arrested Rose [Cohen's] husband Max in March 1937. Suddenly tainted, she waited alone for months. No one wrote. No one rang. No one visited. In August, after five unbearable months, the soldiers came and took Rose away. ... [British Communist Party leader] Harry Pollitt, who had proposed marriage to Rose many times, arrived in Moscow on the day of her arrest. He raised her case with senior officials, including, according to one source, Stalin himself. But when he returned to London, Pollitt and his comrades not only refused to call publicly for Rose's release, they also actively sabotaged the efforts of non-communists on her behalf. ... On 28 November, the guards dragged Rose into the cellars of the Lubianka prison and shot her once in the back of the head.

... The CC member Steve Purdy had shared a room with a German communist who disappeared in the purges. When Purdy arrived back in Australia, he ran from the friends who greeted his ship, screaming: 'Don't let them get me!'

Audrey Blake, the jazz-loving free-thinker Guido knew from the early days of FOSU, spent 1937 in Moscow's Hotel Lux. She watched guests slowly vanish around her, with no particular concern. 'As the slushy autumn gave way to the beautiful, white winter', she later wrote, 'our corridor became strangely deserted and the lead seal would appear outside another apartment. But we didn't see anyone 'taken'. We never heard anything untoward .. The black side of existing socialism was a closed book, and those who talked about it were 'agents of the imperialists'.'

Room with a view

A recent post expressed concern over the 'Lex Ferguson', ie the NSW government's poll-driven development of special legislation allowing it to force former sex offender Dennis Ferguson from public housing.

I use the word 'former' advisedly, on the basis that Ferguson was convicted in Queensland and served time in prison there. He has completed the period of incarceration determined by the court. Not a nice man (and indeed a man who may deserve description by one tabloid as a "fiend ... Such vile criminals don't come much worse)" but he has met his obligations in terms of the justice system. As far as we know he has not re-offended.

In a newspaper item earlier this month Justice Action's spokesperson Brett Collins commented that

Justice Action watched him being hounded from town to town in Queensland and left without a refuge, despite his legal entitlement to be at liberty. Nobody, no organisation, and no authority with major resources was prepared to step in. Such social exclusion offended us an ex prisoner organisation claiming a link to the beginning of the penal colony. "We will shame them all and offer him a refuge" we decided. And we did. And have received the accolades of large sectors of the community ever since.

Sex offending is a serious community problem and the focus on vulnerable stereotypes like Dennis is a distraction. With the incidence of one female in four, and one male in eight being abused, it isn't the 22-year old crimes of Dennis we need to consider but those happening now. The public hysteria aroused by Dennis prevents children complaining. They feel they won't be believed as it is always the stranger who is the danger, not the 90 per cent that happen in the family home. And they know their family and themselves will be devastated by the exposure.

Sex offending needs attention by the family courts not the criminal courts. It needs sensitivity and privacy, with community and parental responsibility.

It is so much easier (and profitable) to have a media circus and a succession of announcements by 'concerned' politicians, including those careful to fend off criticism that the Act is "not a win for vigilantes" and is intended to deal with a "one-off situation". The Premier thus huffed that "There is no place for vigilantism. People cannot take the law into their own hands". The people of course don't need to, if a politician will do it for them.

Ferguson has now been officially locked out of his public housing unit. NSW Housing Department officials, obliged under the Act to offer him alternative accommodation, have invited him to stay in offered a room outside Long Bay Prison - a room with a view? - that was controlled by the Department of Corrective Services.

The Housing Minister David Borger has meanwhile described the decision of his officials to grant Ferguson a public housing unit in the first place as "dopey". Surely public housing is an entitlement of all people in need, rather than just the nice ones?

One reader has rather quickly responded by pointing me to John Conley's 'Can You Talk Like a Lawyer and Still Think Like a Human Being?: Mertz's the Language of Law School' in 34 Law & Social Inquiry (2009) (available here). Talking like a lawyer, rather than like a shock jock, may of course allow all of us to think and live like human beings

Depression and the Profession

It's depression time again, when the Australian legal profession pauses - in some places for a whole nano-second - and contemplates the blues. Yes, the 'I don't want to be here' blues rather than smoking hot jazz.

In talking with a law student today I noted claims that in 2009 it is often easier for lawyers to out themselves as gay than to admit that they suffer from depression, particularly a depression that is incapacitating and that is exacerbated (even triggered) by work practices.

In the lead up to the annual Tristan Jepson Lecture it was thus interesting to see the 'admission' in the Sydney Morning Herald (at least it wasn't pitched as a 'confession') that a NSW District Court judge had suffered from depression and that the judiciary was fearful about revealing its humanity.

The federal Attorney-General's Jepson speech noted that last year Professor Ian Hickie

... announced the findings of a comprehensive study on the prevalence of depression in the legal profession. One-third of solicitors, ... and one in five barristers, suffer depression to a level associated with disability. ...

Perhaps more disturbing are Professor Hickie’s findings in relation to law students, 40 per cent of whom are said to suffer from anxiety and depression. With their courage and confidence undermined, they are, as a group, less likely to seek treatment and more likely to suffer in isolation.

These statistics give rise to two questions. Why is depression so common in the legal profession, apparently more so than in other parts of the Australian workforce, and second what can we do to address it?

The Attorney-General rather squibbed the problem, commenting that "The first question is best left for the clinicians" before going on to note the suggestion by researcher Dr Mamta Gautam

that the nature of the legal profession - its adversarial, conflict-driven nature - and the personality traits of the people attracted to the practice of law may contribute to the high incidence of depression in the profession.

What are we going to do about it?

What can we do to address the staggering number of lawyers, barristers, law students and other legal professionals who live with and suffer from depression?

Tonight I would like to put the spotlight on all of us, to discuss what we can do, as individuals and as part of the proud legal profession as a whole.

I encourage everyone in the profession to look closely at their own mental state, the mental health of their colleagues and to promote a healthy work/life balance. We must take proactive steps if we are to overcome depression in the legal profession.

It is unclear whether we are going to do much at all, apart from exhortations in exercises such as Legal Workshop to "develop a Work/Life balance" (an exhortation considered by some people as inconsistent with the way that such exercises are actually undertaken) and rhetoric among large legal service providers - public and private - about their undying and of course heartfelt commitment to caring for their staff.

One of my naughtier students commented that initiatives such as the 2009 Courting the Blues study [PDF] by Kelk, Luscombe, Medlow & Hickie on attitudes towards depression among Australian law students and practitioners) are well and good, but the brutal reality of life for many novice solicitors in large practices is 'shape up or ship out' ... fine for the binary proletariat to be depressed, just not visibly so or just not on our premises.

That is a dour view but on occasion more practical than the Attorney-General's claim that

By raising awareness, connecting people to solutions, forging relationships and tapping into the insight and knowledge that exists within and outside the legal profession, we are making significant progress.

Is it unrealistic to expect a warmer, gentler way of law in a profession that is built around an adversarial ethos, recruitment of over-achievers, institutionalised bullying, commercial imperatives and values set by fordist practice managers in both the public and private sectors? Progress is being made, but perhaps not as quickly as the A-G claims.

Identity and Electoral Reform

Commonwealth Special Minister of State Joe Ludwig has released the Government’s second Electoral Reform Green Paper - Strengthening Australia’s Democracy - that seeks community feedback on "ideas aimed at improving our national electoral processes generally". That feedback ("an opportunity for broad engagement across the range of matters relevant to electoral law") is due by 27 November.

Senator Ludwig commented that

Many of our electoral laws originate from a time before computers or modern communications. It's important we take stock of the laws so we have a system that makes sense for the 21st Century.

The options raised in this paper aim to deal with the changes occurring in our electoral environment, including changes in population and technology and opportunities for streamlining laws between the Commonwealth and the states and territories.

Issues for public comment include:

* current arrangements for elections in Australia;
* the definition of who is entitled to vote in Australian elections, including suggestions that the threshhold for voting should be lowered from 18 years to 16 years;
* maintenance of the electoral roll and close of roll provisions;
* arrangements for casting of votes at elections; and
* processes for the counting of votes and determination of election results.

The 255 page paper includes a discussion of identity verification issues, for example commenting

7.42 To protect the integrity of the electoral roll, measures may need to be put into place to verify the information received from other government sources. The information received by many government agencies is based on an address for contact rather than a place of residence. Given the importance of ascertaining an accurate place of residence for determining the electoral division in which a person is entitled to vote, there may be a risk that an incorrect residential address may be provided to the AEC; processes would need to be implemented to address this risk. The information provided to the AEC would also need to be sufficiently comprehensive to enable the AEC to ascertain a person's entitlement to be added to the electoral roll; for example, it would need to distinguish between citizens and non-citizens, and provide accurate date of birth information.
7.43 The importance of identity to the integrity of the electoral roll would also require that data used for the purposes of establishing identity was obtained from agencies with sufficiently rigorous processes for establishing, verifying and maintaining proof of identity. For example, the AEC has noted that to receive benefits and services from Centrelink, clients are required to provide documents which establish a client’s identity and establish how it is used, and a physical signature. Motor authorities often require documents to support a person's claim of identity and a photograph and/or signature. Processes to obtain signatures for the AEC's records could be established if necessary.

It goes on to note that

7.67 Options for 'proof of identity' (POI) requirements might be considered in the context of the extent to which they enable universality and integrity. That is, it might be argued that POI provisions should not put people on the roll who are not qualified to enrol, but neither should they prevent people from enrolling who are qualified to enrol. In considering the current situation and the options for automatic and online enrolment discussed above, various options for POI can be examined.

7.68 The AEC advises that under the existing arrangements more than 90% of electors provide a driver’s licence number on their enrolment form as proof of their identity ('tier 1'); approximately 8% show an approved document to an authorised person ('tier 2'); and approximately 2% have their enrolment form countersigned by two electors who are enrolled, who have known the person for at least one month ('tier 3').

The report accordingly identifies options regarding POI -

• The tier 1 provisions could be expanded to allow for other identity documents to be used as an alternative to a driver's licence, without compromising the integrity of the roll. Documents which are broadly available, and may meet appropriate identity integrity requirements, could include Australian passports (regardless of whether a person is resident in Australia or overseas), Medicare cards or proof of age cards.
• Tiers 2 and 3 could be simplified into a single tier which requires only that the form be witnessed by another person on the electoral roll, which would effectively be a return (for those who do not have a driver's licence) to the scheme which applied prior to the introduction of the current POI regime.
• 'Once only' POI could be considered, which would require that proof of identity be substantiated when a person initially enrols to vote, but would not apply the same POI requirements when a person updates their enrolment details. This would still meet the primary aim of the POI system, which is to verify through data external to the AEC that electors exist. It could also align enrolment processes with the practices of other organisations which require POI, such as banks. Once only POI could be beneficial if a system of automatic update or online update of enrolment details were adopted.
• The current provisions could be repealed, reverting to the previous process in which no documentary evidence of identity would be required to enrol or re-enrol.

Sacred and Scary Speech

Christina Bohannan's 65 page University of Iowa Legal Studies Research Paper 'Copyright Infringement and Harmless Speech' - like David L. Lange & H. Jefferson Powell's No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford University Press, 2009) - embraces US free speech pieties in declaring that "Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm". Oh dear. She argues that although

the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is nonexistent or purely speculative.

Bohannan goes on to claim that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. US courts have been unpersuaded by that claim and theorists familiar with natual law justifications of intellectual property might be wary about worshipping the golden calf of free speech. 

 Continental notions of intellectual property as one embodiment of human rights are, however, dismissed by Molly Land in her 2008 submission Intellectual Property Rights and the Right to Participate in Cultural Life. She comments that

Although many contend that human rights law is a justification for intellectual property rights, precisely the opposite is true. Human rights law is far more a limit on intellectual property rights than a rationale for such regimes. In a variety of ways, human rights law requires states to take specific, concrete steps to limit the effects of intellectual property rights in order to protect international human rights. This powerful and emancipatory dimension of human rights law has unfortunately been overshadowed by those who claim human rights as a basis for granting exclusive rights. The U.N. Committee on Economic, Social, and Cultural Rights – the body created to monitor state compliance with the terms of an international treaty called the International Covenant on Economic, Social, and Cultural Rights – is in the process of drafting a General Comment that will interpret the "right to take part in cultural life", a right protected under Article 15(1)(a) of the treaty. The submission .... was designed to provide the Committee with an overview of some of the ways in which intellectual property rights can affect this right and what states may be required to do to protect the ability of individuals to participate in cultural life.

'Oils ain't oils' 

 There is a more robust stance on the sacredness, or otherwise, of speech in a complaint highlighted by Christine Corcos. Her blog notes that the UK Advertising Standards Authority has upheld a complaint by the British Humanist Association (BHA) and two members of the public regarding an advertisement for the Universal Church of the Kingdom of God (UCKG) that featured claims about "Blessed Oil". Those claims were the usual hocus pocus, not that much different to several hundred of the emails that appear in my in-box every day, offering to make me more beautiful, enhance parts of my body that are working quite well (thanks very much), gain me a marvellous job with the Vladivostok mafiya or merely turn me into a tiger in bed. The BHA was critical of the implication in the UCKG ad that anointing with 'Blessed Oil' was instrumental in a child's recovery ("He went into a coma, his heart stopped and both his lungs collapsed. Doctors and specialists expected him to die.") 

 Scary Stuff 

 Is honking your horn protected speech? Corcos also notes State of Minnesota v. Gary Ross Weidner, 2009 Minn. App. Unpub.

Some rumors should rest untested. Four teenage girls aimlessly driving in Windom ten days before Halloween recalled rumors about a "scary house" that, "if you honked your horn at the property," the crazy owner "would come out and shoot at you." The girls drove a car equipped with the requisite horn and had a bit more curiosity than caution. So when nothing happened after they drove by once, honking, they just had to try again. This seemed reasonable because one of the girls remembered that the specific rumor was that "if you came back around the second time, they would shoot at you." As they made their second pass, the teenagers heard a gunshot, one of them yelled, "He shot at us!" and all the girls screamed in unison. The young driver panicked, immediately accelerated, and drove the car out-of-control into a ditch where it rolled onto its side. Police arrived six minutes later to help the uninjured-but-terrified teenagers, and officers found a bullet lodged in the car's door. The owner of the "scary house," Gary Weidner, now appeals his conviction of four counts of second-degree assault that followed a bench trial in Cottonwood County. Weidner argues that his convictions should be reversed for two reasons. He contends that the district court abused its discretion by admitting irrelevant and unduly prejudicial evidence of his past conduct and that the evidence introduced at trial is insufficient to sustain his convictions. Because we conclude that it was not unduly prejudicial to admit the evidence of Weidner's prior conduct and because sufficient evidence supports the convictions, we affirm.

There is scary stuff in Matthew Feldman's opinion piece 'Broadband Terrorism: A new face of fascism', which claims that

virtual fascism is to contemporary British society what Oswald Mosely's East End marches were to the mid-1930s: threatening demonstrations against the spirit of democracy and the reality of multicultural society. The latest permutations of fascist hatred no longer march through Cable Street in serried ranks of militants, but swarm through cables in gigabytes of information.

In discussing 'Hate 2.0' Feldman comments that

Policy needs to evolve still further to overtake this new phenomenon. There are policies to combat paedophiles' online activities, but not yet for those inciting racial and religious hatred. Currently, the web hosts an array of extremist materials capable of turning disaffected, lone racists into politicised terrorists in a manner inconceivable only fifteen years ago. In the largely faceless yet globally-visible world of 'broadband terrorism', incitements to hatred can now be advanced by anyone capable of running Wordpress. As the nail-bomber David Copeland already showed a decade ago, armed with no more than a search engine, a seemingly ineffectual 'loner' can now turn a suburban bed-sit into an individual terrorist 'cell'. A few judicious mouse-clicks enable the assembly of everything from radical right doctrines to bombs. Of course, this is true of all ideological revolutionaries, not only neo-fascists. But the far-right is well ahead of the online curve when it comes to peddling revolutionary politics.

Patents 

 SSRN has meanwhile released 'Patents as Administrative Acts: Patent Decisions for Administrative Review' by Chris Dent, which appeared in (2008) 30(4) Sydney Law Review  691-714.

Currently, challenges to decisions in the Australian patent system may be heard in either the Patent Office, if the challenge comes before the grant of the patent, or in the Federal Court, if a granted patent is challenged. This is the case despite the grant decision being an administrative decision. This Paper considers the decisions made as part of the patent system - including the decision by a patent examiner to grant a patent and the adjudicatory decisions of opposition and revocation - and explores the potential for the challenges to the grant decision to be subject to administrative review. In particular, the Paper raises the possibility of examiners’ decisions being subject to merits review in the Administrative Appeals Tribunal and judicial review before the Federal Court.

Not in anyone's backyard

Opinions will differ on whether the NSW government's handling of the 'Ferguson Affair' is responsive or merely an illustration of an ailing government on the run, keen to preserve what's left of its electoral support by being seen as tough on crime (a toughness that diverts attention from intractable problems). One assessment might be that we should be careful not to confuse responsiveness - jumping at the command (or ptential command) of shock jocks and 'community representatives' - with responsibility, a responsibility to deliver justice and to encourage community understanding of the Australian legal system.

The NSW Premier has today announced [PDF] that

legislation would be introduced to Parliament today to give the Government new powers to protect public safety and cancel public housing leases in extreme cases. The move follows the extraordinary situation created by Dennis Ferguson's public housing tenancy. Last week the Premier asked key portfolios to audit policies and legislation regarding sex offenders. Today’s amendment is the Government's first response to the review.

"The new legislation will ensure that public safety and the protection of children are paramount". ... "This is a proportionate response to what we hope is a one-off situation. However we will continue to act whenever there is a reasonable case to do so"

The "extraordinary situation" referred to in the Premier's media release is the refusal of Dennis Ferguson to conveniently disappear from Ryde, vacating residential accommodation that he leased as a tenant of public housing.

Mr Ferguson is not, in my opinion, a nice man. He was convicted in Queensland for child sex offences. He has, however, served his time in relation to that conviction (ie completed the term of imprisonment imposed by the court). If there is additional punishment for his offences that should - indeed must - take place within a legal framework.

The implication appears to be that Ferguson will be required to leave public housing in Ryde. It is not clear whether he will be offered public housing elsewhere in NSW, given the likelihood that community activists will be critical of him residing anywhere in the state and will demand that he be removed from any location. Is he supposed to find private accommodation (perhaps difficult, if he has no private means or friends of a charitable disposition)? Is he meant to sleep under a cardboard box (although presumably not a box that is near the residences of nice people)? Perhaps he's supposed to move back to Queensland or simply to disappear.

States and democracies are judged on how they deal with unattractive and or defenceless people. The NSW government is abdicating responsibility by moving to establish 'exceptional' legislation - the 'Ferguson Law' - to deal with inconvenient problems. It is unclear whether evaporation of Ferguson's lease will indeed "ensure that public safety and the protection of children are paramount". It is tempting instead to wonder whether the Government's survival is what is "paramount" and that justice is irrelevant.

The Housing Amendment (Registrable Persons) Bill 2009 is described as "An Act to amend the Housing Act 2001 with respect to the housing of registrable persons under the Child Progtection (Offenders Registration) Act 2000". (The typo is on the NSW Parliament's database ... reassuring to see that I'm not the only one who falls asleep at the keyboard.)

The object of this Bill is to amend the Housing Act 2001 to enable the Director-General of the Department of Human Services, on the recommendation of the Commissioner of Police, to terminate the lease of a tenant who is renting public housing within the meaning of that Act and who is a registrable person under the Child Protection (Offenders Registration) Act 2000. The Commissioner of Police may make such a recommendation only if the Commissioner considers that the presence of the tenant at the public housing places any neighbours in the locality or the tenant at risk of being physically harmed or injured. The Director-General will be required to make alternative housing available to the tenant.

The proposed amendment to the Housing Act 2001 (NSW) is retrospective. It dealing with the "termination of lease of registrable person" - ie someone under the Child Protection (Offenders Registration) Act 2000 (NSW) - in "certain circumstances" the 2001 Act would be amended so that

(1) The Director-General may, on the recommendation of the Commissioner of Police, by written order terminate the lease of a tenant who is renting public housing and who is a registrable person.
(2) The Commissioner of Police may make a recommendation under this section only if the Commissioner considers that the presence of the tenant at the public housing places any neighbours in the locality or the tenant at risk of being physically harmed or injured.
(3) On termination of the lease, the tenant must vacate the public housing the subject of the lease.
(4) An order of the Director-General under this section terminating a lease operates:
(a) to give the New South Wales Land and Housing Corporation an immediate right to exclusive possession of the premises concerned, and
(b) to authorise any police officer, using such force as is reasonably necessary, to enter the premises concerned and take such steps as are reasonably necessary in order to give the Corporation possession of the premises.

The amended Act would also provide that

58C(1) On termination of a lease under this Part, the Director-General must ensure alternative housing (whether or not public housing) is made available to the tenant.
(2) The Director-General is required to ensure that alternative housing continues to be made available to the registrable person for so long as the person would have been a tenant under the terminated lease (subject to compliance by the registrable person with the terms and conditions under which the alternative housing is provided).

In dealing with the exercise of 'protected functions' by the Director-General or Commissioner the amendment provides that those functions

may not be:
(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings ...
... no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the protected person, with those provisions or with those rules so far as they apply to the exercise of any protected function.
(5) This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).

The Premier's media release states that "This amendment is a good outcome for the community that prevents us from seeing a hostile situation and potentially people taking the law into their own hands".

That is disingenuous. There will always be potential for people to take the law into their own hands. Arguably the Act legitimises agitation and invites action that will result in an offender being placed on a public housing roundabout. If you object to location of an offender in public housing you simply need to make enough noise to get that person removed - NIMBY and after a while, as we run out of backyards to park people who've met their requirements under the law, not in anyone's backyard.

One correspondent commented to me that

I do see the point concerning 'duty of care', but I think the major problem lies in the precedent this will set. The NSW Government will mitigate probable issues surrounding duty of care in this instance, but in doing so it will acquire a power that may well be the source of even more extensively oppressive use, promoting cause for even greater relief in duty of care litigation. Can you imagine a scenario where, having the power to enforce relocation, the Government fails to avail itself of the provision in every instance. The source of complaint is subject to an offence committed by the potential subject of the relocation power, and the Government is held to be liable. Alternatively, the possible subject of a relocation order is not required to move and, as a consequence, is the victim of an offence. Once again, the Government, now in possession of a specific power to relocate, is the subject of a duty of care claim.

I think sometimes that politicians resort to legislation in an effort to avoid having to uphold the law, or mitigate against possible claims, and merely create further difficulty for themselves while imperilling freedom and liberty in a broader sense.

Agamben writes of law being largely an effort to accommodate the 'exception'. I wonder what views he would have of this chain of events?

I suspect that Giorgio Agamben, author of Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998) and other works, would have a dour but unsurprised view of what is happening in NSW, as would jurists persuaded by John Rawls.

Domestic Violence

The Australian Attorney-General and Minister for the Status of Women have launched a 258 page report on Domestic Violence Laws in Australia, offering an overview of Commonwealth, state/territory and New Zealand legislation regarding domestic violence and sexual assault.

The launch was a feature of the inaugural Ministerial Council on Family Violence and is being promoted as a foundation for development of the National Plan to Reduce Violence Against Women [here], which encompasses six outcomes

1: Communities are safe and free from violence
2: Relationships are respectful
3: Services meet the needs of women and their children
4: Responses are just
5: Perpetrators stop their violence
6: Systems work together effectively.

That Plan is a worthy initiative, given the comment by the Ministers that "nearly one in three Australian women experience physical violence and nearly one in five experience sexual violence over their lifetime".

That statistic is reflected in the statement that "the Australian Government's position on violence against women is one of zero tolerance", a statement of aspiration rather than immediate impact, given that violence is primarily addressed by state/territory law.

The comment that "Laws must be strong enough to hold perpetrators to account and offer justice and safety for victims and their families" is impeccable but one might wonder about a more tangible commitment to greater victim support and even prosecution of offenders.

The Report was prepared for the National Council to Reduce Violence against Women and their Children by the Australian Government Solicitor (AGS), the national government's quasi-commercial legal practice.

It notes that

The Australian Bureau of Statistics reported in 2005 that physical assaults against women most commonly occur in the home, that family members or friends were the most likely perpetrators of physical assaults on women, and
that, of those women who were physically assaulted, 46% (780,500) were assaulted by a current or previous partner. The position is worse for Indigenous women, who are estimated to be up to 40 times more likely to experience violence in the home than non-Indigenous women.

It finds significant differences in -

* maximum penalties for contravening a domestic violence order;
* approaches to counselling and rehabilitation programs; and
* police obligations to take action where domestic violence is suspected.

The report also provides an analysis of overlaps and potential gaps between the Family Law Act 1975 (Cth) [here] and state/territory domestic violence protection orders; examines the registration process for domestic violence protection orders; and considers the 'portability' of those orders between jurisdictions.

It offers what the Attorney-General characterises as "a valuable basis" for the current inquiries by the Australian Law Reform Commission and New South Wales Law Reform Commission regarding domestic violence laws. Those inquiries follow recommendations in the Time for Action report by the National Council.

The new report covers

* an overview of all state, territory and New Zealand domestic violence-specific laws providing for the making of protection orders;
* a comparative analysis of what behaviours constitute domestic violence for the purposes of those laws, and what relationship must exist between the persons concerned in order for the legislation to apply;
* a comparative analysis of laws in each jurisdiction for the registration and enforcement of domestic violence protection orders made in other jurisdictions ('portability' of orders);
* a comparative analysis of the laws in relation to orders which operate to exclude a perpetrator of domestic violence from the person's home (where the perpetrator and the victim would normally cohabit);
* a comparative analysis of the laws of the examined jurisdictions providing for mandatory and voluntary counselling for perpetrators of domestic violence;
* an overview of the laws that make stalking an offence;
* an overview of provisions in the Family Law Act 1975 (Cth) that have particular significance in relation to domestic violence; and
* an analysis of areas where there is overlap and potential for conflict between orders or injunctions made under that Act and orders made under state/territory domestic violence protection orders legislation.

The Report may inform consideration by the Standing Committee of Attorneys-General (SCAG) of a national register of protection orders. It comes a decade after the governments released a 285 page report on Model domestic violence laws [here] following the 1997 Domestic Violence Summit and after substantial publication by experts such as Dr Patricia Easteal.

Asleep in Ethics 101?

The Great Intersex Train Wreck of 2009 - aka a nasty mix of nationalism, gawking, disinformation, anxiety, money, prurience and ego in relation to questions about athlete Caster Semenya - gets messier by the moment.

Leonard Chuene, president of Athletics South Africa (ASA), is reported to have admitted that he and other senior ASA officials consistently lied that they had no knowledge of tests carried out in Pretoria and Berlin on Ms Semenya. Chuene is reported to have explained

Tell me someone who has not lied to protect a child. My only crime committed was to take a decision that she must run, and she won.

Oh, so winning makes it ok? Perhaps, like many sports administrators (in professional or shamateur sports), he was asleep during Ethics 101.

Semenya was supposedly 'tested' in Pretoria on 7 August, prior to travelling to Berlin (where she won a gold medal at the World Championships on 19 August). That testing reportedly required that "her genitals were photographed and her internal organs examined", with the athlete being told - perhaps misled - that she was "only having a routine drugs test". One might wonder what sort of routine drug test involves gynaecological happy snaps.

The ASA was reportedly aware of further gender tests carried out by the IAAF in Berlin following Semenya's victory. The ASA officials at that time characterised media speculation as racist, asking

Who are white people to question the make-up of an African girl? I say this is racism, pure and simple ... The people who question these things have no idea how much shame such a slur can bring on a family.

Intersex advocates noted earlier in this blog (eg here and here) would - from a human rights perspective quite correctly - argue that there is no shame in being intersex and that we might indeed be cautious before assigning particular values to fluid notions such as gender. What is shameful is the lip-smacking treatment of Semenya by the Australian and overseas media and her exploitation by the ASA.

It is difficult not to agree with the assessment by the SA Sunday Times that

It is slowly emerging that she has been abused, deceived and shamefully exploited. She was sent to race by men and women who knew that serious questions were being asked and probably could not be satisfactorily answered, but whose lust for gold trumped any concern for her wellbeing. The evidence is mounting that Semenya's ordeal is a direct and probably inevitable result of the greed and ambition of professionals around her.

The usual game - so much more fun than soccer - of flick responsibility and denounce an offender in front of the cameras is now underway, with the African National Congress proclaiming that it is "appalled" by the behaviour of ASA officials and the international federation. Indeed, it is horrified that the athlete "has been victimized and subjected to unnecessary public scrutiny, thus denying her dignity". Uh huh. The ANC says that the officials should be reprimanded for their "disgusting" handling of the case.

The national Sports Ministry, perhaps echoing Captain Renault in Casablanca, is likewise "shocked" to have discovered that Chuene lied "to the whole country" about the tests and had "fuelled the continuous violation of Ms Semenya's rights and dignity". Urging the ASA to fire Chuene, it commented that "If they fail to do so, they will be running the risk of being led by a liar". Presumably lying is worse than national leadership by a man who thinks that AIDS can be magicked away with a bit of garlic and DIY holy water.

ACIP and Drahos on Patent Law

Australia's Advisory Council on Intellectual Property (ACIP), the body that advises the federal government minister responsible for IP Australia (the counterpart of the USPTO, with responsibility for patents, trade marks, designs and delights such as PBR) has today released a 70 page discussion paper [PDF] that outlines options for reforming the legal tests for patentable subject matter.

The media release accompanying the paper earnestly indicates that

The test for patentable subject matter in Australia is linked to legislation introduced in England in 1623 so it really does need addressing within the context of modern research and business.

That comment is a tad disingenuous, as both UK and Australian law regarding industrial property has moved on since the Statute of Monopolies under James I (the 'king with a thing' about the demon weed, as one colleague says, and about witches), with developments in the conceptualisation of patents and the objectives of the patent system being evident in for example the UK Patents Act of 1883 (as part of national and international lawmaking that resulted in the Paris Convention of 1883), National Research Development Corporation v The Commissioner of Patents (1959) 102 CLR, the Patents Act 1990 (Cth) and Plant Breeder's Rights Act 1994 (Cth), and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement).

Given the supposed hoariness of patent law (not that much different to much crimes, land and contract law) one might suppose that ACIP would hasten slowly in considering responses to its paper. That supposition would be incorrect: ACIP plans to report by 13 November this year. The Committee notes that

The issue of patentable subject matter is topical. The Senate Standing Committee on Community Affairs is currently looking at gene patents. That is a specific example of the types of issues that ACIP is tackling more generally. The call for submissions provides a valuable opportunity for the community to contribute to the reform process.

The ACIP paper follows release by IP Australia of several discussion papers last month. It also follows a succession of reports on the patent system generally or on specific issues, such as the Australian Law Reform Commission's 2004 Genes and Ingenuity: Gene Patenting and Human Health report and ACIP's own report from that year regarding a Review of the Patenting of Business Systems.

ACIP states that the paper sets out

a number of options designed to ensure that patents continue to provide an incentive to foster Australian innovation. The options proposed by ACIP for public discussion include modernising or replacing the existing test for patentable subject matter. For example ACIP are keen to hear views from innovators on the question of whether the current laws are creating barriers to innovation. Some of the options have the intent of allowing researchers and innovators greater clarity and transparency when it comes to ascertaining if their work is patentable. ACIP have also proposed possible safeguards to ensure public concerns are reflected in decisions to grant patents.

The discussion paper has three components:

In "promoting innovation to benefit society", we provide an overview of the key issues relating to patentable subject matter and set a framework for possible reform. We first discuss the controversies and perceived problems with patentable subject matter. We then briefly identify the objectives of the patent system and the way in which the legislation currently defines patentable subject matter. Finally, we set out a framework for options to address any gap between the law and its objectives.

In "retain, clarify, replace, delete or enhance?", we look at the main options for reform. The options follow a framework having three parts. The first part, economic tests, looks at the key concept of manner of manufacture. It identifies options that retain, clarify, replace or delete that test. The second part, social filters, provides options for social exclusions from patentable subject matter. The options focus on the generally inconvenient proviso and on alternative ways of excluding undesirable inventions from the patent system. The third part, enhancements, provides further options for enhancing the law and its administration. We then invite public comments on the options.

In "patentable subject matter – the issues in detail", we provide a more in depth analysis of the main issues concerning the tests for patentable subject matter. This includes consideration of the submissions received and the public consultations held following publication of our Issues Paper.

I'm meanwhile rereading  '“Trust Me”: Patent Offices in Developing Countries' by Peter Drahos in (2008) 34 American Journal of Law and Medicine 151-174.

Drahos comments

Patent rules matter to the structure and evolution of pharmaceutical markets. If they did not, pharmaceutical multinationals would not spend resources on their globalization and content. The role of pharmaceutical multinationals in shaping the patent provisions of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been well documented. The contributions of developing country coalitions and nongovernmental organizations (NGOs) in the World Trade Organization (WTO) on TRIPS and access to medicines have also been studied. 

One actor, the patent office, has largely escaped detailed scrutiny in the literature that has grown around intellectual property law and access to medicines. There is an obvious explanation. Patent offices are administrative bodies. They administer patent standards that are decided and defined by others – the courts, legislatures or the executive acting in the context of treaty negotiation. For those interested in the structural reform of pharmaceutical markets, reforming patent office administration has not been a high priority. Instead, the emphasis has been on encouraging the use of TRIPS standards in ways that are consistent with protecting public health, on developing counter-strategies to the use of free trade agreements to impose TRIPS plus standards,5 as well as putting forward new structural approaches or policy ideas that make more efficient use of existing patent structures. 

This set of priorities by those working on the patent dimensions of access to medicines is the right set. However, as this article will show, the routine operations of patent offices matter to the maintenance of pharmaceutical markets. Most patents will not be litigated and most will not be opposed where a country has a pre-grant or post-grant opposition system. It follows that the vast majority of patents begin and end their life in a patent office (either because the term of grant expires or the patent is not renewed). It is the daily patent office routines of a country that determine the build-up of patents in an economy, including pharmaceutical patents. Pharmaceutical patenting has, as in other areas of technology, increased. Important for present purposes is the technical assistance provided by the European Patent Office (EPO), the Japanese Patent Office (JPO), and the United States Patent and Trademark Office (USPTO) to developing countries. This technical assistance enables, as we shall see, technocratic trust to grow between the office providing the assistance and the office receiving it (the trust giver).  trust, as we shall see, is the trust that individuals within systems place in the technical output of other systems. Technocratic trust influences decision-making processes of trust-giving offices. These decisions help to maintain the structure of patent-regulated pharmaceutical markets, a structure that is based on the fact that patents constitute an opportunity for the owner to pursue economic rents. It follows that profit-  maximizing patent owners will track markets in which the rents are the greatest. This leads to problems of access to medicines in developing countries.  For present purposes, “structure” is being used to refer to those rules that affect the long-term incentives and strategies of interacting players in a given market. Patents rules are structural rules in this sense because they offer companies long-term incentives to invest in the development of technologies under conditions of uncertainty. It has long been recognised that patents may be central to the acquisition of dominance by a firm.  This is especially so in the pharmaceutical sector, where there may be cases where there is global demand for a product for which there is little or no substitutability.  This article focuses on the role that patent offices play in the maintenance of structure, a role that has received much less attention than the impact of patent rules on the acquisition of market dominance by firms. Drawing attention to this maintenance function of patent offices in developing countries is the main purpose of this article. 

A subsidiary purpose is to suggest that developing country policy makers should pay more attention to what happens in their patent offices. As will become clear, developing country patent offices have been integrated into a system of international patent administration, in which the grant of lowquality patents by major patent offices is a daily occurrence. Developing countries for the most part have only had modest success in influencing the evolution of standards at the international level. They have little prospect of influencing the standards of patent examination in the EPO, JPO, and the USPTO, even though those standards impact on the work of their own patent offices. Under these circumstances, developing countries should be thinking about ways to mitigate or prevent the consequences of poor quality patents in the pharmaceutical sector.  

The rest of this article is set out in the following way. Section 1 draws attention to the leadership of the EPO, the JPO, and the USPTO in patent administration. Using the example of the EPO, Section 2 shows how technical assistance causes technocratic trust to grow between offices. Section 3 draws attention to the effects of technocratic trust. Section 4 shows why strategies for the regulation of developing country patent offices have to be developed and Section 5 outlines two such strategies.

Circuses and Bent Bodies

After thirty minutes on the Denny Crane terrace at the Law Faculty (no Cuban cigars but good conversation with Orr SC, Russian Caravan tea and gingernut biscuits) talking about the structure of Question Time in the UK and Australian parliaments and Paul Kelly's The March of Patriots (Carlton: Melbourne Uni Press 2009) I'm back looking at identity literature.

Helen Pringle's short 'The Making of an Australian Civic Identity: The Bodies of Men and the Memory of War' in The Politics of Identity in Australia (Cambridge: Cambridge Uni Press 1997) edited by Geoffrey Stokes concludes with the statement that

The larger point of this paper is to suggest that war does not rest on the repression of eros or love or passionate attachments, but plays out male desire in the ethical and political ordering of virility as civic identity. The memory of war as constructed in such narratives does not present war as an outpouring of violence, but as tableaux of heroism and self-sacrifice by male bodies - tableaux meant to be repeated and responded to. If we see war simply as violence we risk nailing what Phaedrus would identify for us as the real culprit - love and its sight. A love, that is, among men.

For me there are more insights about the 'homosocial turn' in George Mosse's cogent analysis of masculinities, bodies and injury such as The Image of Man: the Creation of Modern Masculinity (Oxford: Oxford Uni Press 1996) and in Dennis Altman's (Homo)sexual Identities, Queer Theory and Politics' in the Stokes volume.

'Constructing Elite Identities: University Students, Military Masculinity and the Consequences of the Great War in Britain and Germany' by Sonja Levsen in 198(1) Past & Present (2008) 147-183 is slighter but suggestive, as is 'Trafficking in Men: The Anthropology of Masculinity' by Matthew Gutmann in 26 Annual Review of Anthropology (1997) 385-409.

Gutmann offers some tart comments on the social sciences, noting that

Anthropology has always involved men talking to men about men, yet until fairly recently very few within the discipline had truly examined men as men. ['Trafficking'] explores how anthropologists understand, utilize, and debate the category of masculinity by reviewing recent examinations of men as engendered and engendering subjects. Beginning with descriptions of four distinct ways in which masculinity is defined and treated in anthropology, special attention is paid to the relations of difference, inequality, and women to the anthropological study of masculinities, including the awkward avoidance of feminist theory on the part of many anthropologists who study manhood. Specific topics discussed include the diverse cultural economies of masculinity, the notion of cultural regions in relation to images of manhood, male friendship, machismo, masculine embodiment, violence, power, and sexual faultlines.

On a lighter note the short article by James Jones on 'Body, Body, Who Gets the Body? The Resolution of Bodily Remains Cases' in 2 Wealth Strategies Journal (2009) asks

What do celebrity Anna Nicole Smith; Godfather of Soul James Brown; baseball immortals Ted Williams and Kirby Puckett; artist Mark Rothko; some United States service members killed in the Iraq War; and even the Reverend and Mrs. Billy Graham have in common? All have been the objects of disputes over who controls final disposition of their mortal remains. Those, in turn, have brought into public scrutiny an ancient legal issue - who decides the place and method of disposal of the bodies of the dead. From antiquity, the law was ordinarily careful to honor the written or oral directions of the deceased. If a decedent did not express a preference, then burial was determined by the surviving spouse, and if there were none by the next of kin. The abstracted article reviews the various disputes involving those listed above, as well as some less famous individuals.

Jones comments that lawyers should strongly encourage clients to formally identify their choice for burial arrangements. "Doing so can avoid unseemly post-mortem disputes which can turn what should be a solemn and dignified process into a circus-like sideshow event." Quite.

Matt Mitten's paper 'Legal Issues Arising Out of Blood Testing for Human Growth Hormone' argues that

To date, no US or foreign court or arbitral tribunal has directly considered whether mandatory blood testing of athletes for banned performance-enhancing substances, including synthetic human growth hormone (rhGH), violates any internationally or nationally recognized individual rights to privacy or bodily integrity. To determine how this issue is likely to be resolved in litigation or arbitration, this article reviews the developing U.S. law and private international law established by arbitration awards regarding the legality of drug testing at the various levels of athletic competition as well as the compelled taking and testing of a person’s blood outside the context of athletics.

The paper might be read in conjunction with Janwillem Soek's The Strict Liability Principle and the Human Rights of Athletes in Doping Cases (The Hague: Asser 2006). Mitten concludes that

It is probable that one of the first athletes who tests positive for rhGH will question the scientific validity of the testing method and/or the accuracy and reliability of the test results in CAS arbitration, a legal challenge that WADA and the international sports governing bodies must be prepared to defend by proving both requirements are satisfied.

The recent mishandling of questions about the status of Casta Semenya does not encourage great confidence in the ability of such sports governing bodies or their respect for human rights.