McLuhan

From the WSJ review of Douglas Coupland's Marshall McLuhan: You Know Nothing of My Work (2010) -

Like his fellow devout Catholic, J.R.R. Tolkien, media theorist Marshall McLuhan exerts a powerful fascination over certain adolescent minds. His catchphrase, "the medium is the message," encapsulates an intoxicating technological determinism; his prediction, in the 1960s, that electronic communication would create a "global village" makes him seem a seer. Novelist Douglas Coupland, himself a chronicler of technology and culture, seems never to have outgrown his McLuhan phase.

Inspired by perceived similarities between their lives—both are Canadians, from stern, Protestant, frontier stock—Mr. Coupland has written a short yet infuriatingly digressive biography of McLuhan. In broad outlines, he shows how a scholar of Renaissance literature turned his critical skills toward such topics as popular culture and television. Readers may be surprised to learn that McLuhan believed the effects of modern communication technology on society to be mostly malign. Old-fashioned to the point of medievalism, he predicted the end of print but was not at all pleased about the possibility.

... Coupland's biography exhibits the same flaws as McLuhan's own books. It is lazily researched: Describing major figures that a young graduate student might have encountered at Cambridge University in the 1930s, Mr. Coupland admits that "much of this information came from Wikipedia."

Dr Muehlon, I presume

Amid brouhaha about Wikileaks, 'open secrets' and Julian Assange I'm reminded of outcry last century about Dr Wilhelm Mühlon (1878-1944).

Mühlon gained a PhD in law in 1904 and after posts in the German consular service was a director of the Friedrich Krupp conglomerate, concerned with war materials. He resigned from Krupp in late 1914, claiming to have freed himself "from the profession he loathed". In 1915 he became Special Commissioner of the imperial administration of the Balkans (ie representing the Wilhelmstrasse in Bucharest, Sofia, Vienna and Budapest regarding grain and oil negotiations). After ineffectual efforts to shape German policy through gatherings of uper-class liberals and litterateurs Mühlon migrated to Switzerland, from where, on 7 May 1917, he sent a memorandum (later published in France and Switzerland) to Imperial Chancellor von Bethmann-Hollweg "repudiating the German government and all its works".

In subsequent denunciations he drew on his diary and on a cache of Krupp documents, inevitably (given hysteria as the great Wilhelmine train crash proceeded) being denounced as a traitor, person deserving of assassination, a cad and otherwise a person of unsavoury habits.

During a Reichstag meeting on 16 March 1918 Franz von Papen characterised Mühlon as "pathological" and as a "neurasthenic who could not even come into a room if it contained a few gentlemen with whom he was personally acquainted". By June 1918 he was reported as having "bought a good deal of land and an old country house near Berne" and settled in Switzerland with his family, ignoring call-up for German military service -

Dr Muehlon has thought it best to remain in Switzerland, although by doing so he constitutes himself a deserter, and although the position of deserters in Switzerland is not altogether a pleasant one.

Somewhat more pleasant, of course, if you have a private income and are not parked in a wet trench with cadavers and rats while people try to kill you.

Mühlon published his 1914 diaries - Die Verheerung Europas: Aufzeichnungen aus den ersten Kriegsmonaten [The Devastation of Europe: Notes Written During the First Few Months of the War] - now a forgotten best-seller. He was reported as explaining that

Dr Muehlon did not intend to publish the diary until these statements were made about him in the Reichstag and now, when people read the book the world in general will be able to laugh at to scorn the notion that of a mentally unbalanced man having clear, direct, and logical a style ... Nothing appears more clearly from this diary than the fact that Dr Muehlon considers – for excellent reasons – based on fact, which he cites in detail – that Austria, her intolerance and lack of conciliation generally, were mainly responsible for outbreak of the war, and the individual most responsible for rushing Europe into it was the German Emperor.

Translations as The Vandal of Europe and as Dr Muehlon’s Diary promoted Mühlon as a successful businessman and as thinker who was "highly sensitive to moral considerations and placed moral values above material success".

Mühlon was in contact with - and often sponsored - figures such as Rilke, Hermann Hesse, Ernst Bloch, René Schickele, Hermann Staudinger, Annette Kolb and Hugo Ball. He was also in contact with 'opposition' inside Germany. In early 1919 he was invited to Munich by the Bavarian government and offered a ministerial post, which he sensibly declined, concluding that "the outlook seems so hopeless that he has decided to remain in Switzerland for the present". He remained in Switzerland until his death, being vilified in 1933 by the Nazis for financial support of the catholic Rhein-Main. Volkszeitung. By 1937 he was being denounced in German courts as "probably the biggest and meanest traitor that has ever been born on German soil" and, like the self-involved and unpleasant Mr Assange, was facing recurrent death threats. His diaries of the early 1940s - humane, perceptive, indignant - are a minor masterpiece that deserves to be better known.

The current significance of Wikileaks - as with Mühlon's revelations - is the consequence of disclosure and what responses to disclosure tell us about public perceptions of diplomacy and 'inner politics' rather than access to anything that's particularly new, exciting or disturbing. (That may change, of course, if future disclosures reveal the identity of informants in Afghanistan and elsewhere and put those people at risk.)

One contact commented to me that he inferred from reading the Economist and New York Times that Sarkozy has a thin skin and that the Karzai administration is riddled with corruption: no great revelations there. Paul Ginsborg and other scholars have indicated for over a decade that there are fundamental grounds for doubting the probity of Italian government: again, we didn't need Assange. Do Middle East states love Iran? Does Iran love them? Not much news there.

What is disturbing is the outrage, approaching hysteria, among some circles in the US - reminiscent of hyperbole about Mühlon - and the naivety, even irresponsibility, evident among fans of Wikileaks.

The Economist commented that -

It's telling that Mr Assange hasn't placed his servers in some technically capable autocracy with a desire to thumb its nose at the world, say Iran or Venezuela. He needs liberal democracies. Their laws guarantee the safety of his information. And when trying to solve what looks like a digital problem, the best path is to consider where the problem is physically vulnerable. Anti-spammers, for example, have finally notched up some successes in the last two years by going after server locations; spammers need servers in places like America, which has reliable networks and vast fields of vulnerable personal computers. But America also has laws, and ways to enforce them.

My gripe against Mr Assange is that he takes advantage of the protections of liberal democracies, but refuses to submit himself to them. If he wants to use the libel protections guaranteed by New York State, then he should live in New York, and commit himself to all of the safety and consequences of America's constitution. If he wants to use Sweden's whistleblower laws, then he should return to Sweden and let its justice system take its course. This, as we've written in the paper, is what distinguishes Mr Assange from Daniel Ellsberg. Mr Ellsberg did not flee America after releasing the Pentagon Papers; he stayed here and stood trial. Regardless of what you think about Mr Ellsberg's motives, he followed the basic tenets of civil disobedience: break a law, then publicly accept the consequences. Mr Assange just protects himself.

Julian Assange has created a legal structure that allows him to answer only to his own conscience. This is an extraordinarily clever hack of the world's legal systems. But it makes his pretense at moral authority a little hard to take seriously. And it also points toward a solution. If America feels threatened by WikiLeaks, then it should lean on its allies—Sweden, Iceland and Belgium—to strip the organisation of the protections it so carefully gathers as it shifts its information around the world. Mr Assange has suggested that he might be hounded all the way to Russia or Cuba. If he has to take all of his servers with him, it wil be harder for him to act so boldly.

SMS Spam penalty

Australian telecommunications regulator ACMA has noted the $2 million penalty under the Spam Act 2003 (Cth) for the last respondent in Safedivert SMS spam scheme.

The Federal Court has today imposed $2 million in penalties against Scott Gregory Phillips in proceedings brought by ACMA regarding SMS spam, aka speam. That penalty is in addition to $22.25m imposed on seven other respondents last year in Australian Communications & Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 2) [2009] FCA 887, bringing the total penalties to $24.25m.

Phillips, along with the other respondents, was involved in a complicated scheme involving creation of established fake dating website profiles to obtain the mobile phone numbers of genuine dating website users. Those numbers were then sent messages from people pretending to want to chat via a 'Safedivert' service about meeting and forming a relationship. Users who were unfortunate enough to be tricked by that identity scam were charged approximately $5 per message, with ACMA alleging that the scheme cost Australian mobile users over $4m from late 2005 until November 2008.

Logan J, in delivering judgment, indicated that -

The conduct was undoubtedly deliberate. IMP and its agent Jobspy, which employed IMP's modus of operation, engaged in concerted deception. Mr Phillips' involvement in the deception was at the most senior level. He was the controller of IMP.

ACMA chair Chris Chapman commented that -

The size of the penalties awarded in this case are an indication of how seriously the courts treat breaches of the Spam Act, which is very encouraging.

In cases such as this where the conduct was calculated, deceptive and had a detrimental effect on Australian phone users, the ACMA will not hesitate to use every available avenue to protect the consumer. This prosecution again demonstrates the commitment of the ACMA to ensure that individuals and companies comply with the Spam Act.

Over-ripe and under-cooked

From Fred Inglis' A Short History of Celebrity (Princeton University Press, 2010), a sort of Limburger cheese of a book -

So social action for the novelists and the journalists alike justified itself in private lives and conspicuous leisure. Sure, the money had to be made, but its blossom was made manifest in such fruits of the spirit as (and supremely) works of art, exquisite but unassuming dress, careful and uncondescending courtesy, the reticence of high, withheld intelligence, discreet but massive generosity towards the nation, a complex and interestingly ironic attitude to life. 

Against these grand, middle-aged and bounteous qualities, exuding the certainty of success, the narratives of spontaneity, passionate (probably erotic) expression, vivid impulsiveness, hot allegiance, financial insouciance thrust themselves forward on the side of youth. Calm and fulfilled marriage on one side, the reckless love affair on the other; this is the twist-point of value as the First World war trundled over the horizon, and it was in these terms that celebrity was called onstage to enact the constellation of ideas. 

Drama thrives on the collision of values in which either the admirable or the hateful is destroyed. In this short fresco of American life culminating in 1920, the gangster as celebrity is one favourite such action, particularly in the United States where social forms were so plastic, and success so defined in terms of physical action and sudden reward - gold mines, railroads, herds of cattle, newspapers, murder, So the ambiguous dramas of Al Capone, John Dillinger, the Pinkerton agency, and the grisly escapade in a garage on St Valentine's Day have a brightly lit corner in the moral imagination of the epoch, and in ours, its inheritor.

In contrast Gargan v Magistrate Dillon and Anor [2005] NSWSC 1106, involving recurrent litigant Peter Alexander Gargan, featured the Supreme Court's observations on the sort of "pseudo technical legal rubbish" that is unsuccessfully used by sovereign citizens.

The judgment notes that Gargan sought an order that “the question of fact in this matter in federal jurisdiction be tried with a jury”, a declaration that the magistrate has no power to hear a matter pending before him and that a sequestration order made by a single judge of the Federal Court of Australia in Commonwealth Bank of Australia v Gargan [2004] FCA 707; (2004) 206 ALR 571 s “utterly void”. 

 The Bank persuasively argued that the proceedings initiated byGargan’s statement of claim were frivolous, vexatious and an abuse of process, no reasonable cause of action being disclosed. 

The Court states that Gargan’s statement of claim, 'omitting formal parts', reads as follows: 

“Particulars 1. The Plaintiff is a student of Constitutional law, who has completed three years study at University, and was made bankrupt on the personal opinion of a single federal court Judge. 

2. In 2004 the Second defendant requested consent from the plaintiff to the bankruptcy and requested a Statement of Affairs be filed, with the Sydney office, citing Section 54(1) Bankruptcy Act 1966 as authority to make that request.

3. In protest at the refusal of the Federal Court Judge, to constitute the Federal Court of Australia as a Court of Judicature, as required by Chapter III Australian Constitution and the further refusal of the Insolvency and Trustee Service of Australia to obey the Statutory command contained in Section 86(1) Bankruptcy Act 1966 the plaintiff has refused to ratify the sequestration order, by filing a Statement of Affairs. 

4. The ITSA organisation issued a Penalty Notice returnable at the Downing Centre which was first heard on the 7th May 2005 and were represented by the Director of Public Prosecutions (Cth). 

5. The plaintiff objected to the jurisdiction of the Magistrate on the founds that in its totality, the amendments to the Bankruptcy Act 1966 effected by Act no 44 of 1996, made the jurisdiction of the Federal Court of Australia exclusive. 

6. Those changes were effected to Section 5, 27 and 273, Bankruptcy Act 1966 and the plaintiff argues it was the duty of the Magistrate to give effect to the will of the Parliament of the Commonwealth lawfully expressed, in an Act, and dismiss the penalty Notice, as brought in the wrong jurisdiction. 

7. The jurisdiction of the Parliament of the Commonwealth to grant the Federal Court of Australia exclusive jurisdiction in bankruptcy matters, is contained in Section 77(ii) Australian Constitution.  

8. By section 65 Supreme Court Act 1970 the Supreme Court is empowered to make orders requiring officers of lower courts to perform their public duties according to law. 

9. The magistrate was at all times exercising the executive power of the Commonwealth of Australia and that power is exclusively vested in Her Majesty ELIZABETH THE SECOND by section 62 Australian Constitution. 

10. The ITSA and magistrate exercising federal jurisdiction, are defined in the Dictionary of the Criminal Code Act 1995 separately as a Commonwealth judicial officer in the case of the magistrate, and the category is then included in Commonwealth public official together with the officials in the ITSA and the plaintiff. 

11. In 1986, the magistrate became bound, by reference to Section 5 Commonwealth of Australia Constitution Act 1900 and S 109 Australian Constitution to give effect to the International Covenant on Civil and Political Rights which became schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986. 

12. In 1995 the Parliament of the Commonwealth enacted the Criminal Code Act 1995 and it was proclaimed on the 16th October 2001, and the dictionary proclaims the International Covenant on Civil and Political Rights as Australian Law. 

13. The magistrate failed to do his public duty, and decline to proceed further and that refusal enlivens the jurisdiction of the Supreme Court to compel him to do so. 

14. The plaintiff is a practising Christian, and under Section 116 Australian Constitution is entitled to freely exercise his beliefs, and refuse to accept the usurpation by the State of New South Wales represented by the Magistrate of the power of God Almighty, vested in Her Majesty ELIZABETH THE SECOND by the Australian Constitution and Coronation Oath taken by the Queen, at Westminster Abbey in 1952. 

15. The separation of powers claimed by the Australian Government Solicitor as being strict, in its publications of the Australian Constitution is not effected by vesting judicial power in an individual with both judgmental powers and administrative powers, but by separating absolutely the power to administer judgments, from the power to make judgments, by requiring that the power to judge, is exercised by a jury, as required under Sections 79 and 80 Australian Constitution. 

16. The Separation of Powers, comes from the Bible, and the Gospells, and the Chief Executive Officer of Australia Her Majesty ELIZABETH THE SECOND is at one, head of the Church of England and Presbyterian Churches, the Army, and the Chief Magistrate of the realm, and has been restrained by the Bible, since 1297 and the Magna Carta, from issuing warrants to allow her subjects to be assaulted, abused, forced to obey unjust laws however made, and from allowing her delegates as defined in the Criminal Code Act 1995 from issuing unwarranted demands. 

17. Her Majesty ELIZABETH THE SECOND is obliged not to judge, by Matthew 7 verse 1, to observe the separation of powers by Matthew 18 Verse 20, and to allow Her subjects to put themselves upon Jesus Christ as judge, by John 5 verses 22 and 23, where a Christian insults His God, if he fails to request and insist upon a jury trial. 

18. Since 1297, and the Magna Carta, numerous Acts have enacted the Biblical separation of powers into Christian Law, and these Acts, include, the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP), The (1623-24) James 1 C3 (Statute of Monopolies) ss1 and 6, the Coronation Oath, 1 Will & Mary C 6 (Coronation Oath) (1688), The Charter of Justice 1824, The Australian Constitution, the International Covenant on Civil and Political Rights, The Evidence Act 1995, (CTH) s143, and the dictionary to the Criminal Code Act 1995. 

19. The judicial power of Her Majesty ELIZABETH THE SECOND is expressed by warrants, and only warrants issued in accordance with the procedure prescribed by law, are validly issued. 

20. Section 51 Placitum (xxxi) Australian Constitution requires that any property whatsoever taken by Her Majesty ELIZABETH THE SECOND or any of her delegates as public servants, be taken on just terms, and just terms imputes a jury trial before sequestration, unless consent to arbitrary judgment is made. 

21. Section 2 Judiciary Act 1903 (Cth) defines “appeal” to include an application for a new trial and any proceeding to review or call in question to decision proceedings or jurisdiction of any Court or Judge. 

22. Christianity and communism represented by Islam and Judaism have been opposed to each other since Jesus Christ was crucified, and there has been a continues conflict between the two ideologies, which was resolved in favour of Christianity, in the United Kingdom and all its colonies, from 1297, by legislation, but the central them of Christianity, which is individualism, has been constantly under attack, by two party communism, in Australia since 1969, when the State of New South Wales purported to repeal the separation of powers, by repealing Imperial Acts, outside its powers, and replacing the separation of powers, with compulsory communism, enforced by magistrates, disenfranchising the people from their right to be the judges in the community. 

23. The (1623-4) James 1 C3 (Statute of Monopolies) ss 1 and 6 reproduced in full in the Imperial Acts Application Act 1980, (Vic) Section 8, binds the Crown, not to create or condone monopolies, and the Crown cannot condone the exercise of monopoly powers by any magistrate whatever name he or she may carry. 

Gargan's claims proceeded downwards 

24. The erection of Star Chamber Courts prohibited by the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP) is enacted to prevent the vertical integration of a communist state, by the control of the administration of justice by the state, and the Insolvency and Trustee Service of Australia has acted with bad faith, in attempting to use a State magistrate to punish a political protester, in the face of a clear legislative prohibition on doing so. 

25. The education of over forty years of lawyers, has deliberately concealed the separation of powers, and the existence of the (1623-4) James 1 C3 (Statute of Monopolies) ss 1 and 6, the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP) which bans Star Chambers, and communism, and the disenfranchisement of the true judges, the people, and their replacement by public servants working for the communist State. 

26. The Federal Court of Australia is a communist institution, which has the means to be Christian, but chooses to be communist, by refusing to separate the power to judge, from the power to administer a judgment, and staffs the court with magistrates, whose education has never been completed. 

27. Section 80 Australian Constitution separates power with respect to criminal matters, and section 79, which uses the word ‘judges’ which is both uncapitalised and singular, gives effect to the separation of powers, by distinguishing the word, ‘judges’ from the definition of Chief Justice, and Justices, in Section 71 Australian Constitution which are capitalised. 

28. The Crown, which cannot consent to monopolies, has created an equal Supreme Court in each of the former colonies, and the Supreme Court of New South Wales when exercising federal jurisdiction, has absolutely unlimited Australia wide jurisdiction, by virtue of Section 15C Acts Interpretation Act 1901, (CTH) and its decisions, when made, are given Australia wide effect, by Section 118 Australian Constitution. 

29. As a Court of Judicature, the Supreme Court of New South Wales has a duty, under Section 63 Supreme Court Act 1970 to fully dispose of these proceedings. 

30. The High Court is supposed to be the Federal Supreme Court but has never constituted itself as a Supreme Court since its inception, and is now almost irrelevant, as a venue for the settlement of political differences, being in effect a council of Rabbis, in the Jewish tradition. 

31. In 1996, in Kable v DPP of New South Wales (1996) 96/027 the High Court declared by majority, that the creation of a Star Chamber to try and jail Gregory Wayne Kable, was ‘ultra vires’ the power of the Parliament of New South Wales and that decision is relied upon to claim that the Federal Court of Australia as it currently constitutes itself, is also illegal. 

32. This matter would never have come before a magistrate, had the High Court not refused to file an appeal, in its original jurisdiction. 

33. Should the matter be contested, the plaintiff, under Section 85 Supreme Court Act 1970 will seek to have the matter tried with a jury and not otherwise. 

34. The plaintiff is a Commonwealth public official by the definitions contained in the Criminal Code Act 1995, Dictionary, and has a civil and political right to ensure the law is applied and the course of justice in respect of the Judicial power of the Commonwealth is not defeated, delayed, obstructed or perverted. 

The Plaintiff claims: 

1. An order that the decision of the magistrate be set aside and the Magistrate re-consider the matter in the light of the Supreme Court decision. 

2. A declaration that the Bankruptcy Act 1966 was amended to make State Magistrates unable to hear bankruptcy matters, or matters arising out of the Bankruptcy Act 1966 since act no 44 of 1996. 

3. A declaration that a sequestration order, made in a contested matter, by a single judge is unconstitutional and utterly void.”

In response the Court states 

8 In so far as they can be gathered from the statement of claim itself and discursive and voluminous written submissions filed by the plaintiff, as supplemented by oral submissions, a number of propositions of law are seen by the plaintiff as underpinning the claims in the statement of claim. The main propositions appear to be as follows: 

1. A charge of failure to lodge a statement of affairs in accordance with s.54(1) of the Bankruptcy Act 1966 (Cth) cannot lawfully be determined by a single judicial officer since, in particular, this is contrary to the Statute of Monopolies (21 James I c.3). 

2. The jurisdiction to determine such a charge resides exclusively with the Federal Court of Australia, having regard to amendments to the Bankruptcy Act by the Bankruptcy Legislation Amendment Act 1996 (Cth); but the Federal Court, “as it currently constitutes itself”, is “illegal” because of principles enunciated by the High Court in Kable v Director of Public Prosecutions [1996] HCA 24; (1997) 189 CLR 51. 

3. The magistrate was bound to give effect to the International Covenant on Civil and Political Rights as part of Australian law and failed to do so. 

4. The authority of the magistrate is inferior to that of Almighty God whose power is, by virtue of the Coronation Oath, exercisable by Her Majesty Queen Elizabeth II. 

5. The power to judge, being the power exercised both by the magistrate and, as regards the sequestration order affecting the plaintiff, by the Federal Court, is vested by ss.79 and 80 of the Constitution of the Commonwealth so as to be exercisable only by a jury. This rule is reinforced by Biblical passages which, via the Queen’s intermediation (see proposition 4), form part of Australian law. 

6. The proceedings in which the plaintiff was adjudged bankrupt were irregular in that they were tried by a single judge without a jury.

There may be other legal propositions inherent in the statement of claim and the plaintiff’s submissions. If there are, I merely say that they are so obscure and outlandish as not to merit serious consideration. 

The second defendant says, quite simply, that each of the six propositions I have extracted is not only wrong but so glaringly and palpably wrong that the plaintiff’s claims are entirely devoid of merit and represent a waste of court time and resources and therefore amount to an abuse of process. I entirely agree. I shall explain why.  ... 

18 Proposition 1 seems to rest in part on a view about the operation of the statute 21 James 1 c.3 (the Statute of Monopolies). That view is to the effect that it is contrary to the statute for judicial power to be exercisable by one judicial officer alone. The view is erroneous. If the Act 21 James 1 c.3 had any continuing force in Australia beyond the limited extent recognised in the Patents Act 1990 (Cth) and allowed by State provisions of which s.6 of the Imperial Acts Application Act 1969 is an example, it would be entirely irrelevant to the question at hand. This is because the statute is (or, at least, was) concerned with the exercise of the prerogative to create monopolies, grants, licences and the like “of or for the sole buying, selling, making, working or using of any thing within this realm or the dominion of Wales or of any other monopolies or of power, liberty or faculty to dispense with any others, or to give licence or toleration to do, use, or exercise any thing against the tenor or purport of any law or statute ...” – added to which it was made clear by s.8 of the Act that it did not extend to the jurisdiction of courts “having power to hear and determine offences done against any penal statute”. This remnant of legal history has no bearing upon the matters under discussion or, in particular, the investing of jurisdiction in courts by statute. 

19 The plaintiff’s second proposition (item 2 at paragraph [7] above) is one that has already been canvassed. It is true that the amending Act of 1996 put s.27 into its present form but, for the reasons stated, the general specification in s.27 did not (and does not) detract from the particular provisions with respect to trial of offences in s.273. The latter section was itself amended by that Act but the relevant parts of it were left intact. To the extent that the plaintiff places reliance on Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 in submitting that the Federal Court could not, in any event, hear and determine the proceeding against him, he not only introduces an irrelevancy but also fails entirely to say how, in his submission, the ordinary procedures for trial of proceedings in the Federal Court overstep the limits allowed by Chapter III of the Constitution, that being the matter at issue in Kable. There is no basis at all for concluding that those procedures involve any exceeding of those limits. 

20 The plaintiff’s third proposition (that is, item (3) at paragraph [7] above) proceeds on the footing that Australian courts are bound to give effect to the provisions of the International Covenant on Civil and Political Rights as part of Australian law. This is simply incorrect. A succinct statement of the status of the provisions of the covenant in Australian law may be found in the judgment of Kirby J in Re Kavanagh’s Application [2003] HCA 76; (2003) 78 ALJR 305 at [10]- [14] (with footnotes omitted):

“It is clear from the proceeding presented by the applicant, and from the terms of his affidavit, that he seeks to rely on Art 14.1 of the International Covenant on Civil and Political Rights (‘ICCPR’) to support the proceeding. Australia is a party to the ICCPR. It has also subscribed to the First Optional Protocol to the ICCPR. That Protocol permits persons in the position of the applicant to communicate to the Human Rights Committee of the United Nations where they contend that, in particular respects, Australia is in breach of its obligations under the ICCPR. This, it appears, the applicant has done, or intends to do, in consequence of his complaints about the outcome of the foregoing proceedings. 

Although at various times, it has been suggested that the ICCPR should be made part of Australia's domestic law, by the enactment of legislation giving it direct local effect, no such law has, to this time, been enacted. This does not mean that the ICCPR is irrelevant to Australia's legal system. Views differ concerning the precise ways in which the provisions of the ICCPR may be invoked in support of, and the extent to which they are relevant to, legal rights and duties in Australia. However, in Mabo v Queensland (No 2) writing in this Court with the concurrence of Mason CJ and McHugh J, Brennan J said: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. 

In the same reasons, Brennan J said: The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. 

A reflection of the differing views concerning the way in which the requirements of the ICCPR may be used in expressing the law applicable in this country can be seen in the decision of the New South Wales Court of Appeal in Young v Registrar, Court of Appeal [No 3]. That case bears a distant similarity to the present one. As I said in that case, it is permissible, in my view, in accordance with the reasons of Brennan J in Mabo [No 2], to utilise the articles of the ICCPR in the development of the common law of Australia where that law is in doubt or otherwise undeveloped. Similarly, for my own part, I would be prepared to accept that the articles of the ICCPR may be used to assist in the resolution of an ambiguity that arises in the meaning of Australian legislation, including federal legislation. The ICCPR may be relevant in still further ways not presently material. 

However, where there is applicable Australian legislation which is clear, and without relevant ambiguity, and where such legislation governs the case to the exclusion of the common law, there is no room for the articles of the ICCPR to ‘bring to bear’ on Australian law the influence mentioned in Mabo [No 2] or as otherwise favoured by me. In such cases, because Australian parliaments have not, so far, given domestic effect to the ICCPR as part of the municipal law of Australia, the duty of Australian courts is clear. It is the duty stated in the Australian Constitution itself. It is to obey and give effect to the law of Australia, including the law stated by the Parliament. 

In the present case, the applicable law is expressed clearly in federal legislation. It appears in the Judiciary Act 1903 (Cth), relevantly s 35(2). By that subsection it is provided: An appeal shall not be brought from a judgment, whether final or interlocutory, referred to in subsection (1) unless the High Court gives special leave to appeal. In s 35(1), reference is made in para (a) to ‘judgments of the Supreme Court of a State’. The judgment in the applicant's case is such a ‘judgment’. This, therefore, is the law that confines appeals to this Court from judgments, such as those made by the Supreme Court of Tasmania in the applicant's case. Relevantly, such appeals lie only where this Court grants special leave to appeal.”

21 Even allowing for the view most favourable to the plaintiff about the operation of the covenant in Australian law, it does not have any impact where, as here, the matter in issue is the statutory jurisdiction of a court, clearly and unambiguously conferred by an Act of the Parliament of the Commonwealth. 

22 It is pertinent to point out that the plaintiff is well aware of the limited relevance of the provisions of the International Covenant on Civil and Political Rights in Australian law. In Commonwealth Bank of Australia v Gargan (above), in which, as here, he appeared in person, the plaintiff made submissions which caused Hely J to say in his judgment (at [20]-[21]):

“The respondent made a number of oral submissions in addition to the grounds relied upon in the affidavits referred to above. The common thread throughout these submissions was that it was incorrect to say that the Act ‘stands alone, and it’s not part of a matrix of laws’. The matrix adverted to by the respondent was said to include the Privacy Act 1988 (Cth) (the Privacy Act) and the International Covenant on Civil and Political Rights 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) (ICCPR) (Australia is a party to the ICCPR, and the full text is set out in Sch 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)). While it is true that the Privacy Act and, to a more limited extent, the ICCPR form part of Australian law (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 517–18 [65]–[67]; 72 ALD 613 at 628–9 (McHugh and Gummow JJ), [120]–[122]; ALR 530– 1; ALD 641–2 (Hayne J), [145]–[148]; ALR 538– 9; ALD 649–50(Callinan J)), the respondent has not established that these instruments impact upon what would otherwise be the operation of the Act.”

23 The last two words of this extract refer to the Bankruptcy Act. 

24 I turn next to proposition 4 set out at paragraph [7] above. It is sufficient to say, in relation to this, that it is wrong and that the plaintiff must know that it is wrong, two courts having previously told him so. In Gargan v Commonwealth Bank of Australia [2004] FCA 641, Hely J said (at [4]-[5]):

“In the applicant’s affidavit he also contends in para 6 that: Under Protestant Christian law, the only legitimate judge since 1297 is Jesus Christ, present in a jury of 12 in accordance with Mathew 18: Paragraphs 15–20, the Bible, and enacted into Constitutional law by the Magna Carta. This submission cannot be accepted having regard to the provisions of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). As O’Keefe J explained in Gargan v DPP [2004] NSWSC 10, since the supremacy of Parliament was finally demonstrated by the revolution of 1688, any appeal to scripture as establishing a moral principle higher than Parliamentary sovereignty has become obsolete.”

25 In Gargan v Director of Public Prosecutions [2004] NSWSC 10; (2004) 144 A Crim R 296, O’Keefe J said at pp.312-3: 

“A number of other arguments were raised in relation to the asserted invalidity of s 54(b) of the Jury Act. They included: (i) An invocation of scripture; Matthew Ch 18 v 20, John Ch 5 v 26-27. (ii) The terms of the Coronation Oath as set out in the Coronation Oath Act 1688 (UK) (1 William and Mary c 6). ... 

In view of the conclusion to which I have come in relation to the effect of the decision by the High Court in relation to the validity of s 54(b) of the Jury Act I do not consider it is necessary to deal with these arguments in great detail. It suffices to say that: (i) The appeal to scripture, that is to a moral principle higher than parliamentary sovereignty, is ‘out of line with the mainstream of current constitutional theory as applied in our courts’ (Building Construction Employees & Builders' Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 at 384 per Kirby P). The same principle was applied by Lord Reid in British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765 in which he said (at 782): ‘In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete. To a like effect is the decision of the Privy Council in Liyanage v The Queen [1967] 1 AC 259 in which it was held that an Act of the Parliament of Ceylon could not be challenged on the basis that it was contrary to the fundament principles of justice. This argument fails. (ii) The appeal to the Coronation Oath Act as a basis for invalidating the legislation is based on the assertion that at her coronation the Queen took such oath and swore to uphold the gospels. This oath of 1688 is then sought to be linked by the plaintiff to s 116 of the Commonwealth Constitution. Any linkage is obscure to say the least, since that section prohibits the making of any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and it proscribes any religious test as a qualification for any office under the Commonwealth. Section 116 of the Commonwealth Constitution is irrelevant in relation to the validity of s 54(b) of the Jury Act. The oath of office to which the plaintiff adverts is enacted in the Coronation Oath Act. Pursuant to that Act the King and Queen were asked, inter alia: ‘Will you solemnly promise and swear to govern the people of this kingdom of England and the dominions thereto belonging according to the Statutes in parliament agreed on and the laws and customs of the same?’ To which the King and Queen replied: ‘I solemnly promise so to do.’ And: ‘Will you to the utmost of your power maintain the laws of God, the true profession of the Gospel, and the Protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them or any of them?’ To which the King and Queen replied: ‘All this I promise to do.’ The foregoing oath is not that taken by Her Majesty Queen Elizabeth II nor for that matter by His late Majesty King George VI, her father. The oath taken by Her Majesty Queen Elizabeth II in 1952 involved the Archbishop of Canterbury asking a number of questions including: ‘Will you solemnly promise and swear to govern to peoples of the United Kingdom, of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other Territories to any of them belonging or pertaining according to their respective laws and customs?’ (Italics added.) To which the Queen replied: ‘I solemnly promise so to do.’ And: ‘Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? ...’ To which the Queen replied: ‘All this I promise to do.’ 

Whilst this oath binds Her Majesty, it does not affect the law of New South Wales. Furthermore the oath involves Her Majesty undertaking the moral obligation to govern the people of Australia according to the laws and customs, not of England or the United Kingdom, but according to those of Australia. 

This argument also fails.”

26 The question whether the Coronation Oath, of itself, gave rise to legally recognisable rights on the part of the Queen’s subjects had previously been considered by the Victorian Court of Appeal in Little v State of Victoria [1999] VSCA 113. It is sufficient to quote a brief passage from the joint judgment of Winneke P and Charles and Batt JJA (at [16]) in order to demonstrate the basic unsoundness of the plaintiff’s reliance on the Coronation Oath:

“As we read them, the words of the oath are of such width that it seems to us they could only import obligations, carrying corresponding rights, if the State were to create such obligations and rights in a specific enactment (cf Simpson v Attorney-General of New Zealand [Baigent’s case] [1994] 3 NZLR 667 at 677, per Cooke P; and at 697-8 and 700-702 per Hardie Boys J, cf 704-6 per Gault J and 718 per McKay J).”

In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Gargan was declared a vexatious litigant in the Federal Court, having been declared a vexatious litigant in the Qld Supreme Court in 2000 - Lohe v Gargan [2000] QSC 140.

The Court states O 21 r 1(1) provides: 

(1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court.  

Principles relating to vexatious litigants 

A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established.

First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made. 

Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits. 

Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts. 

Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent. 

Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless. 

Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters. 

Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field. 

Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct. 

Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth). 

Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised. 

Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise. 

It is in light of those principles that Mr Gargan’s particular circumstances must be considered.  

Mr Gargan’s litigious history 

Mr Con Karantonis gave evidence on the Official Trustee’s application. He is a solicitor in the employ of the Australian Government Solicitor and is one of the solicitors responsible for the day to day conduct of the application by the Official Trustee against Mr Gargan. Between August and December 2008, Mr Karantonis carried out searches of various litigation databases to identify cases in which Mr Gargan was, or had been, a party and which, in Mr Karantonis’ opinion, were relevant to the question of whether Mr Gargan had commenced vexatious proceedings. He identified 20 cases which he thought answered that description. Those cases were put in evidence.

murderabilia

If you are thinking of buying me Lee Harvey Oswarld's slightly used coffin for Christmas, don't!

The ABC reports another expression of murderabilia (ie collectibles from serial killers and other nasties) in the form of an auction of Oswald's coffin -

For the JFK assassination conspiracy junkie who has everything: Lee Harvey Oswald's coffin is due to be auctioned in the US this month. Body not included.

Oswald and coffin were disinterred in 1981 after his widow gained an exhumation to test a conspiracy theory that a look-alike Russian agent had been buried in her husband's place. If you are into alfoil beanies you won't be convinced by the news that "the badly decomposed body was indeed Oswald's" ... presumably They switched the body back or tweaked the testing or whatever, before Oswald (or his look-alike) went back underground in a replacement coffin. They are so ingenious, whoever They are.

The report notes that

A Los Angeles auction house said it would sell the simple pine coffin in which the official assassin of president John F Kennedy was buried for almost 20 years.

Bidding will start at $US1,000, but the item is expected to fetch strong interest from museums and collectors of presidential memorabilia when it goes on the block on December 16.

"There's just a lot of interest in Kennedy and anything to do with his assassination", said Laura Yntema, auction manager at California-based Nate D Sanders. ...

The original coffin, which had suffered extensive water damage, is being sold by Baumgardner Funeral Home, the local undertaker which handled the re-internment.

Reuse of the box has startling possibilities - recycled into pencils, embedded into bling for placement on a finger or earring or around the neck, toothpicks, inlay in picture frames, barbecue chips, coasters ...

save you the bother of shooting yourself

George V famously exclaimed that he thought English upper class adult males found to have engaged in same sex activity did the decent thing and shot themselves. (I say adults, given indications of exploration among gender-segregated elite schools).

Thor Halvorssen of the Human Rights Foundation - under the heading 'United Nations: It's Okay to Kill the Gay' - notes that many governments will save you the bother, promising to head, hang or otherwise dispose of you for the wrong object choice.

Last week, the Third Committee of the United Nations General Assembly voted on a special resolution addressing extrajudicial, arbitrary and summary executions. The resolution affirms the duties of member countries to protect the right to life of all people with a special emphasis on a call to investigate killings based on discriminatory grounds. The resolution highlights particular groups historically subject to executions including street children, human rights defenders, members of ethnic, religious, and linguistic minority communities, and, for the past 10 years, the resolution has included sexual orientation as a basis on which some individuals are targeted for death.

The tiny West African nation of Benin (on behalf of the UN's African Group) proposed an amendment to strike sexual minorities from the resolution. The amendment was adopted with 79 votes in favor, 70 against, 17 abstentions and 26 absent.

Halvorssen notes that -

A collection of notorious human rights violators voted for the amendment including Afghanistan, Algeria, China, Congo, Cuba, Eritrea, North Korea, Iran (didn't Ahmadinejad tell the world there were no gays in Iran?), Egypt, Malaysia, Pakistan, Russia, Sudan, Uganda, Vietnam, Yemen, and Zimbabwe.

Add to this Bahamas, Belize (where you get 10 years for being gay), Jamaica (10 years of hard labor), Grenada (10 years), Guyana (life sentence), Saint Kitts and Nevis (10 years), Saint Lucia (10 years), Saint Vincent (10 years), South Africa (Apartheid? What apartheid?), and Morocco (ruled by a gay monarch!). They are all on the list of nations that do not think execution of gays and lesbians is worthy of condemnation or investigation. ...

Those against the amendment include every European nation present, all Scandinavian countries, India, Korea, most of Latin America, all of North America, and only one Middle Eastern nation: Israel. In most countries in the Middle East, it is a crime to be gay - in some, like Saudi Arabia, it is punishable by beheading and in others, like Iran, by hanging.

With just a dash of hyperbole he comments that -

The UN has a remarkable track record of doing virtually nothing when presented with mass killings or genocide. "Never again!" was the cry after the holocaust. Since then, the world has witnessed a dozen more never agains with strong condemnation from the UN coming after the corpses pile up. A resolution of the sort that was voted on in the General Assembly is significant for its clarity of message: "It's okay to kill the gays."

Papua New Guinea, the failed state in our neighbourhood, abstained. Halvorsen notes that -

Not a single African nation voted against the amendment. This is not surprising. Homosexuality is illegal in most of Africa. So acceptable is the notion of extra-judicial killings of gay men and women for their consensual private conduct that one of these countries, Uganda, is considering legislation making homosexuality (not the behavior, just being gay) punishable with death. The proposer of the bill, David Bahati, and the Ugandan "Minister for Ethics and Integrity," Nsaba Buturo, have vowed the bill will pass before parliament dissolves on May 12, 2011.

I am consoling myself by reading Stuart Biegel's lucid The Right To Be Out: Sexual Orientation and Gender Identity in America's Public Schools (Minneapolis: University of Minnesota Press 2010).

The US Defense Department has - oh shock and horror - meanwhile acknowledged in a 267 page report [PDF] on DADT that allowing gay men and women to serve openly in the nation's armed forces presents a low risk to the military's effectiveness (including in times of war) and that 69% of surveyed service members (out of a survey of 115,052 responses, supplemented by a mere 44,266 responses to a spouse survey) believe that the impact on their units would be positive, mixed or of no consequence.

Concerns about openly gay service members were driven by misperceptions and stereotypes: "exaggerated and not consistent with the reported experiences of many service members" absent 'moral' and religious objections to homosexuality. The DOD has perhaps learned from experience with racially segregated facilities, indicating thar it is not planning to construct separate bathrooms (one for hets, one for non-hets) - described as "a logistical nightmare, expensive and impossible to administer".

The report noted that -

The reality is that there are gay men and lesbians already serving in today’s U.S. military, and most Service members recognize this. As stated before, 69% of the force recognizes that they have at some point served in a unit with a co-worker they believed to be gay or lesbian. Of those who have actually had this experience in their career, 92% stated that the unit's “ability to work together” was "very good", "good", or "neither good nor poor", while only 8% stated it was "poor" or "very poor". Anecdotally, we also heard a number of Service members tell us about a leader, co-worker, or fellow Service member they greatly liked, trusted, or admired, who they later learned was gay; and how once that person’s sexual orientation was revealed to them, it made little or no difference to the relationship. Both the survey results and our own engagement of the force convinced us that when Service members had the actual experience of serving with someone they believe to be gay, in general unit performance was not affected negatively by this added dimension.

Yet, a frequent response among Service members at information exchange forums, when asked about the widespread recognition that gay men and lesbians are already in the military, were words to the effect of: "yes, but I don’t know they are gay". Put another way, the concern with repeal among many is with "open" service.

In the course of our assessment, it became apparent to us that, aside from the moral and religious objections to homosexuality, much of the concern about “open” service is driven by misperceptions and stereotypes about what it would mean if gay Service members were allowed to be “open” about their sexual orientation. Repeatedly, we heard Service members express the view that "open" homosexuality would lead to widespread and overt displays of effeminacy among men, homosexual promiscuity, harassment and unwelcome advances within units, invasions of personal privacy, and an overall erosion of standards of conduct, unit cohesion, and morality. Based on our review, however, we conclude that these concerns about gay and lesbian Service members who are permitted to be “open” about their sexual orientation are exaggerated, and not consistent with the reported experiences of many Service members. In today's civilian society, where there is no law that requires gay men and lesbians to conceal their sexual orientation in order to keep their job, most gay men and lesbians still tend to be discrete about their personal lives, and guarded about the people with whom they share information about their sexual orientation. ...

As one gay Service member stated:

I don't think it's going to be such a big, huge, horrible thing that DoD is telling everyone it's going to be. If it is repealed, everyone will look around their spaces to see if anyone speaks up. They'll hear crickets for a while. A few flamboyant guys and tough girls will join to rock the boat and make a scene. Their actions and bad choices will probably get them kicked out. After a little time has gone by, then a few of us will speak up. And instead of a deluge of panic and violence ... there'll be ripple on the water's surface that dissipates quicker than you can watch.

In communications with gay and lesbian current and former Service members, we repeatedly heard a patriotic desire to serve and defend the Nation, subject to the same rules as everyone else. In the words of one gay Service member, repeal would simply"take a knife out of my back ... You have no idea what it is like to have to serve in silence". Most said they did not desire special treatment, to use the military for social experimentation, or to advance a social agenda. Some of those separated under Don't Ask, Don't Tell would welcome the opportunity to rejoin the military if permitted. From them, we heard expressed many of the same values that we heard over and over again from Service members at large — love of country, honor, respect, integrity, and service over self. We simply cannot square the reality of these people with the perceptions about "open" service.

The report also states that -

We support the pre-existing proposals to repeal Article 125 of the Uniform Code of Military Justice and remove private consensual sodomy between adults as a criminal offense. This change in law is warranted irrespective of whether Don't Ask, Don't Tell is repealed, to resolve any constitutional concerns about the provision in light of Lawrence v. Texas and United States v. Marcum. We also support revising offenses involving sexual conduct or inappropriate relationships to ensure sexual orientation neutral application, consistent with the recommendations of this report

Leave your brain at the door

Faith is a wonderful thing. Today's SMH reports a speech by Cardinal Pell in which he revealed that the lives of people without religious faith have ''nothing beyond the constructs they confect to cover the abyss". Life without God was ''life without purpose, without constraints'' ... a pronouncement somewhat at odds, in my case, of observance of constraints against strangling kittens, marrying a cow or otherwise running amok.

The same issue of the Herald reports the federal Opposition Leader as announcing that although there were good arguments for the monarchy (which he didn't condescend to share), they were ''often beside the point''.

The wellsprings of its appeal are instinctual as much as rational; more akin to loyalty to a team, solidarity within a family or faith in a church than they are to support for a policy. Deep down, they are the heart's reasons that reason doesn't know

The 'heart has its reasons' defence is perhaps unfortunate, given its use by former monarch Edward VIII in chucking the job.

Mr Abbott was admittedly opining in the Neville Bonner Memorial lecture to the Australians for Constitutional Monarchy, not the most critical of audiences, when he reportedly explained that -

Reaction to the engagement of Prince William and Kate Middleton showed the monarchy was ''evolving and renewing - not as other institutions might through legislation, vote, or upheaval but through something as natural and as fitting as the marriage of an appealing man to an attractive woman''.

Let's not think, of course, about the marriage of an appealing man to another appealing man, or even ditch the requirement for 'appealing'.

In what the Herald delightfully describes as "opening up a new line of attack in the debate over an Australian republic" (ie that "support for the monarchy need not be rational"), Mr Abbott reportedly continued that -

''This latest royal wedding is likely again to demonstrate people's response to ritual and tradition and their tendency to delight in princes and princesses,'' he said. ''If republicans could bring themselves to suspend hostilities, they might come to appreciate that what they currently find inexplicable or even offensive is not so for others and perhaps need not always be for them either.''

Professing delight that ''a wedding can trump argument'' he applauded the ''perennial gap between the mainstream and a commentariat that can't quite get an institution with its roots in an earlier time and a different way of thinking''.

I do like the "delight in princesses and princes" (and presumably Priscilla Queen of the Desert ... can't have too much bling and fustian). Let's not talk about the delight that people (with occasional cheers from "the commentariat" and the judicary) have taken in pogroms, witch-burning and other time-honoured colourful treats.

Mr Abbott's speech - titled 'Almost an Indigenous Monarchy' - demonstrates that the Opposition Leader needs to brush up on his constitutional law. "The governor-general, these days always an Australian, is our head of state". Um, actually no, Mr Abbott ... read the Constitution or analysis by leading constitutional lawyer Bede Harris.

Cold water

From Richard Betts' 'Conflict or Cooperation?' appraisal in Foreign Affairs (2010) of Fukuyama, Mearsheimer and Huntington -

Like most red-blooded Americans, Fukuyama rejected the sour realist theory of international relations, which sees history not as a progression toward enlightenment and peace but as a cycle of conflict. Epochal threats made realism persuasive during much of the century of total war, but at bottom it is alien to American instincts and popular only among some cranky conservatives, Marxists, and academic theorists. (I have been accused of being among them.) Most people happily pronounced it passé once the communist threat imploded. "Treating a disease that no longer exists," Fukuyama claimed, "realists now find themselves proposing costly and dangerous cures to healthy patients."

Mearsheimer, however, is an unregenerate realist, and he threw cold water on the Cold War victory. Bucking the tide of optimism, he argued that international life would continue to be the brutal competition for power it had always been. He characterized the competition as tragic because countries end in conflict not out of malevolence but despite their desire for peace. In the absence of a world government to enforce rights, they find it impossible to trust one another, and simply striving for security drives them to seek control of their environment and thus dominance. If peace is to last, it will have to be fashioned from a stable balance of power, not the spread of nice ideas. In short, there is nothing really new about the new world.

Mearsheimer was a party pooper, defying what seemed to be common sense. Many found it easy to write him off when he claimed the revival of traditional conflicts would soon make everyone nostalgic for the simplicity and stability of the Cold War. But realism can never be written off for long. This school of thought has always agitated, even angered, American liberals and neoconservatives (who are in many ways just liberals in wolves' clothing). The theory falls out of favor whenever peace breaks out, but it keeps coming back because peace never proves permanent. Mearsheimer's vision is especially telling because it is an extreme version of realism that does not see any benign actors in the system and assumes that all great powers seek hegemony: "There are no status quo powers ... save for the occasional hegemon that wants to maintain its dominating position."

Gene Patenting

Reading the 160 page Senate Community Affairs References Committee report [PDF] on gene patents, which so far is not quite as horrendous as might be inferred from the early media reports. Several of the recommendations flick responsibility to separate consultations or are anodyne, eg that the Government gather more data about patenting.

The Committee's initial recommendation is that -

#1 the Government support and expand the collection of data, research and analysis regarding genetic testing and treatment in Australia, in line with recommendation 19-1 of the 2004 Australia Law Reform Commission Genes and Ingenuity report.

That is a worthy but unremarkable recommendation covering activity that in practice, as distinct from rhetoric, hasn't attracted much enthusiasm from either the ALP or Coalition.

The Committee goes on to recommend that -

#2 the Government conduct a "public consultation and feasibility study regarding establishing a transparency register for patent applications and other measures to track the use of patents dealing with genes and genetic materials".

#3 the Senate refer the Patent Amendment (Human Genes and Biological Materials) Bill 2010 to the relevant Senate committee for inquiry and report.

#4 the Government provide a combined response addressing the Committee's inquiry into gene patents, the 2004 Genes and ingenuity report by the Australian Law Reform Commission (ALRC) on gene patenting, the review of patentable subject matter by the Australian Council on Intellectual Property (ACIP) and the review of Australia's patent system by IP Australia. The Committee recommends that the response be provided not later than mid-2011 or three months after the release of the findings of all reviews.

#5 at an "appropriate time following the release of the ACIP review of patentable subject matter and the IP Australia review of the patent system, the Community Affairs References Committee be tasked with inquiring into the Government's response to, and implementation of, the recommendations of those reviews, as well as the recommendations of the Committee's report on gene patents".

#6 the Patents Act 1990 be amended so that the test for obviousness in determining inventive step is that a claimed invention is obvious if it was 'obvious for the skilled person to try a suggested approach, alternative or method with a reasonable expectation of success'.

#7 the Patents Act 1990 (Cth) be amended to remove the limitation that 'common general knowledge' be confined to that existing in Australia at the time a patent application is lodged (that is, that 'common general knowledge' anywhere in the world be considered).

#8 the Patents Act 1990 (Cth) be amended to "remove the requirement that 'prior art information' for the purposes of determining inventive step must be that which could reasonably have been expected to be 'ascertained' (that is, that the 'prior art base' against which inventive step is assessed not be restricted to information that a skilled person in the relevant field would have actually looked for and found)".

#9 the Patents Act 1990 (Cth) be amended to introduce descriptive support requirements, including that the whole scope of the claimed invention be enabled and that the description provide sufficient information to allow the skilled addressee to perform the invention without undue experimentation.

#10 the Patents Act 1990 (Cth) be amended to provide that an invention will satisfy the requirement of 'usefulness' in section 18(1) only in such cases as a patent application discloses a 'specific, substantial and credible' use. The Committee recommends that such amendments incorporate recommendations 6-3 to 6-4 from the Genes and Ingenuity report.

#11 the Patents Act 1990 (Cth) be amended to clarify the circumstances in which the Crown use provisions may be employed; and that the Government develop clear policies for the use of the Crown use provisions. The Committee recommends that the Government adopt recommendations 26-1 to 26-3 from the Genes and Ingenuity (report.

#12 the Government amend the Patents Act 1990 (Cth) to clarify the scope of the 'reasonable requirements of the public' test, taking into account recommendation 27-1 of the ALRC's Genes and ingenuity report. The Committee recommends that the Government review the operation of the competition based test for the grant of a compulsory licence, with particular reference to its interaction with the Trade Practices Act 1974 (Cth).

#13 the Patents Act 1990 (Cth) be amended to include a broad research exemption.

14 to assist courts and patent examiners with the interpretation and application of the Patents Act 1990, the Government consider amending the Act to include anti-avoidance provisions.

#15 to assist courts and patent examiners with the interpretation and application of the Patents Act 1990 (Cth), consideration be given to Government amending the Act to include objects provisions.

#16 the Government establish a patent audit committee.

A supplementary comment by Senators Cooney and Heffernan, the latter best known for the shameful slur against then High Court justice Michael Kirby, reads -

the Report fails to address the very issue which triggered this inquiry in the first place – gene patents.

Unfortunately, while the Report states that the Bill introduced into the Senate to ban gene patents is providing a "much-needed opportunity for the arguments and questions around the impacts and effectiveness of an express prohibition on gene patents to be considered" (para 4.135), we are of the view that the evidence presented to this Committee is sufficient to support the call for the implementation of such a ban. The time has come, after more than two years, for action. More talk, which is what this Report suggests as "much-needed" we believe will simply delay necessary action to prohibit gene patents.

In contrast Senator Boyce indicates that -

I remain very concerned that any changes in one part of patent law may have unintended consequences across a system which has underpinned most technological and industrial advances for centuries.

No changes should be made to patent law without the expert advice of organisations such as IP Australia and the Australian Law Reform Commission.