Put another Renoir on the barbie

From 'From Barbie to Renoir: Intellectual Property and Culture' by Susy Frankel in (2010) 41 Victoria University of Wellington Law Review 1-15 -

Because of the pervasiveness of intellectual property in our culture, the right way to discuss the limits of intellectual property is to understand and try to articulate the relationship between intellectual property and culture. We know it is there but what does this relationship tell us? And how can we use the understanding of that relationship in a practical way?

One of the phenomena that we see is that there have been certain products and brands that have become boom industries. The question that I am interested in is not whether cultural and creative industries are goodies or baddies, whether Barbie has less or more artistic merit than Renoir, but whether if the law over protects these kinds of cultural products we do damage to culture itself. The law is too protective if it starts to be too constricting on the types of artistic, literary and musical works that can be made. The law is too restrictive if people will not create certain works because they are not sure if the law allows them to or not and they cannot easily find out the necessary information to determine if what they do is legal creativity or not.

The problem with the incentive and reward approach to intellectual property is that it loses sight of the public interest in the structure of the law as a whole. In essence the rights of individuals appear to have trumped the collective interests in intellectual property law. Those collective interests include its effect on culture. This includes what we might call expressive values and free speech, but it is not just those values at play. Society has a vested interest in supporting individual rights. The appropriate balance between collective interests and individual rights is not an easy balance to achieve. Finding that balance requires that we look at the fundamental reasons why we have private rights in intellectual property. Asking how much reward is necessary, and questions of that kind, ultimately do not reveal much more than some businesses do rather well out of intellectual property rights. Looking at the relationship between culture and intellectual property is a much better starting place because ultimately it can show more clearly where to draw the line.

The idea that there is a link between culture and intellectual property is not new. But exactly what the link is, and how it can be appropriately reflected in the law, is not selfevident. The starting clue, that I have used, is that cultural industries are protected by intellectual property rights. But it is not the status as a cultural industry that achieves this. It is the creation of cultural products. You receive copyright whether you are a big player or a small player.

When intellectual property rights interfere too much with the type of cultural product that emerges, particularly from small players, that is when a line can be drawn. But it is complete nonsense to suggest that the drawing of the line is for any reason other than to support one cultural interest over another. This dominance of one cultural interest over another is often the consequence of a focus only on economic interests. In as far as New Zealand can, we should draw our own lines about cultural values. Such an approach is also likely to be economically beneficial.

Dubya

From Eliot Weinberger's 33(1) LRB (2011) review of George Bush's Decision Points (London: Virgin 2010), characterised as "the perfect Christmas gift for one's Republican uncle".

... in the mere two years since he left Washington, Bush is beginning to seem like a reasonable man compared to the Republicans who have now been elected to higher office. Unlike them, he was not a 'family values' Christian who liked to have prostitutes dress him in diapers; he did not have to pay a fine of $1.7 billion (yes, billion) for defrauding the government; he does not advocate burning the Quran; he does not believe that Obama is a Kenyan Muslim allied with terrorists who is building internment camps for dissidents; he does not believe that people of Hispanic origin should be randomly stopped and asked to prove their immigration status; he does not support a military invasion of Mexico or a constitutional amendment stating that the United States cannot be subject to Sharia law or an electric fence along the entire Canadian border or the death penalty for doctors who provide abortions; he does not believe that bicycle lanes in major cities are part of a plot by the United Nations to impose a single world government. The Palinites and Tea Partiers are getting the publicity, but the old-fashioned neocons still hold the power, and they may well run the ever patient Jeb Bush – practically the only Republican left with both dull conservative respectability and national name recognition – for president in 2012.

Ame and Essenberg again

Opportunism, amnesia or an expression of the belief system that's characterised as 'cargo cult'. The ABC reports that around 100 people from Papua New Guinea have been intercepted by Customs in the Torres Strait during a quest - dubbed by the Australian government as a "prank" - supposedly to reclaim Australian citizenship removed when PNG gained independence in 1975.

Travellers in twelve dinghies included members of the Papua Australia Plaintiff United Affiliates (PAPUA) group, reported earlier this month as claiming that they were (or should be recognised as) Australian citizens -

We were born Australian citizens when Papua was part of Australia. Our claims to citizenship is that we never renounced it or made a declaration of loyalty to PNG

That claim is unpersuasive, given the High Court decision in Re Minister for Immigration and Multicultural Afairs; Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439; 79 ALJR 1309; 218 ALR 483.

Amos Bode Ame was born in the territory of Papua prior to independence. Geography matters, as Ayelet Shachar notes in The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press, 2009).

Australian supervision of the Territory meant that under the Australian Citizenship Act 1948 (Cth) Ame was an Australian citizen by birth. Some citizens are more equal than others. Under the Migration Act 1958 (Cth) [here] Ame required a permit to enter the Australian states and internal territories (eg the ACT and NT) or reside in those jurisdictions.

Independence for Papua New Guinea under the Papua New Guinea Independence Act 1975 (Cth), which provided that "On the expiration of the day preceding Independence Day, Australia ceases to have any sovereignty, sovereign rights or rights of administration in respect of or appertaining to the whole or any part of Papua New Guinea", was reflected in a Constitution for the new state, with people who had been born in PNG prior to nationhood - and who had two grandparents born in PNG - being granted citizenship of the new country. In conjunction with the grant those people lost their Australian citizenship through the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 under the 1975 PNG Independence Act. An exception was made for the fortunate few who had previously secured permanent residency in Australia.

Ame entered Australia 24 years after independence (ie in 1999) using a visa. He had not entered, or applied for any right to enter, any of the States or internal Territories before Independence Day and had never applied to become an Australian citizen by naturalization or by registration under the Citizenship Act.

He argued that he was an Australian citizen by birth and as a consequence had a right of permanent residence in Australia, which meant that he had never lost his Australian citizenship and could not be removed or detained under the Migration Act 1958 (Cth). He had not taken up the opportunity under s 65(5) of the Papua New Guinea Constitution for renouncing another nation's citizenship in order to become a naturalised PNG citizen.

Ame argued that as an Australian citizen he was not an 'alien', that his citizenship could not be withdrawn by regulation under the Papua New Guinea Independence Act 1975 (Cth) and that alternatively the Commonwealth could not withdraw his citizenship without his consent.

The High Court disagreed, rejecting the arguments. It held that there had been no constitutional obligation for residents of Papua or another external territory to enter mainland Australia as a right. Acceptance of Ame's assumptions about citizenship disregarded PNG independence and would for example mean that most Papuans would currently be Australian citizens (and citizens without the restrictions evident prior to Independence).

As importantly, the Court held that the regulations withdrawing citizenship as part of Independence were constitutionally valid. The PNG Independence Act provided that "The Governor-General may make regulations making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act". The Court indicated that -

The power in s 122 pursuant to which parliament enacted legislation to deal with the acquisition of the external territory enabled it also to enact legislation to deal with the relinquishment of sovereign rights and rights of administration over that territory. The power pursuant to which parliament could enact legislation to treat the inhabitants of the territory as citizens enabled it also to treat the inhabitants of the new independent state as aliens.

In referring to Singh v Commonwealth of Australia [2004] HCA 43; (2004) 209 ALR 355, decided in the previous year, the Court noted rejection of the notion that the aliens power could not be used to unilaterally strip people of their Australian citizenship. Mr Ame's consent was not required. the Court was similarly (The High Court was unimpressed with his suggestion that he held Australian citizenship through a decision not to become a naturalised member of PNG, commenting that -

It is improbable in the extreme that it was the purpose of s 65 of the Papua New Guinea Constitution to exclude from citizenship of the new nation all indigenous Papuans living at Independence Day unless they took positive steps to renounce their Australian citizenship.

The Australian experience differs from that of New Zealand. Niue voted in 1974 for self-government "in free association" with NZ, with Niueans being automatically granted New Zealand citizenship. Given limited economic opportunities on Niue only 1,400 of around 50,000 ethnic Niueans currently live in the microstate; some 20,000 live in New Zealand and the Niuean economy is essentially funded by NZ (at a rate of around NZ$18,000 per each Niuean every year).

PNG is substantially larger than Niue and its legal relationship with Australia during the colonial/trusteeship period was different to that of Niue and NZ. Although both PNG and Niue are - or are becoming - failed states, adoption of the 'Niue Solution' is unlikely in Australia.

I have been rereading Carnes v Essenberg and Ors [1999] QCA 339, one of those 'freemen' cases where a litigant asserts that there has been a fundamental rupture in the transmission of law from Magna Carta as a supposed urtext so that 'sovereign citizens' are not bound by traffic, firearms, taxation, local government charges or other inconvenient rules.

Chesterman J in this instance states

The applications for leave to appeal against the orders of the District Court are totally without merit and can be disposed of briefly. Mr Essenberg has two points. He maintains that Magna Carta was and remains a pre-eminent source of legal obligation binding all Courts and governments, and that any subsequent developments of legal principle or enactments of Parliament, that have occurred in the last 800 years that might be thought to have diminished the force of Magna Carta, are invalid. By its terms he claimed a right to trial by jury. The proceedings brought against him for contravention of the Weapons Act were simple offences prosecuted before a Magistrate. 

Mr Essenberg has a second point. He claims that by the Bill of Rights 1688 he, as a citizen, has a right to bear arms suitable for his defence. He asserts that that right also remains untouched by 300 years of legal and political development. He argues that the Weapons Act is invalid because it takes away that right. 

Magna Carta formed part of the system of imperial laws which apply to the colonies of Eastern Australia on their settlement. So did the Bill of Rights. The historical importance and the influence on the constitutional development in English-speaking countries of those two enactments are profound. However, it is completely inaccurate to say that colonial parliaments, or indeed the Parliament of Westminster, could not alter, modify or even repeal the provisions of centuries old legislation. 

The Australian Courts Act 1828 was enacted by the Imperial Parliament to allow for the establishment of an organised judiciary in the colonies and to facilitate the making of local laws. Section 24 provided that: 

"All laws and statutes in force within the realm of England at the time of the passing of this Act shall be applied in the administration of justice in the Courts of New South Wales so far as the same can be applied within the said colonies, and it shall be lawful that the governors of the said colonies respectively with the advice of legislative councils of the said colonies to make and establish such limitations and modifications of any such laws and statutes as may be deemed expedient." 

The Australian Courts Act became part of the law of Queensland upon its separate establishment in 1859. It may be noted also that the Colonial Laws of Validity Act 1865 was passed by the Imperial Parliament to remove doubts about the extent to which Australian Colonial Parliaments could alter imperial legislation as it applied to the colonies. As Dr Lumb points out in his work on the Constitution of the Australian States, the result of that Act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law. 

The matter is made even more explicit by section 3 subsection 2 of the Australia Act 1986 which provides that no law and no provision of any law made after that Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom. 

The supremacy of Parliament to make laws contrary to what had been the Common Law is expressly recognised by the Courts. It is enough to refer to the decision of the High Court in Kable v. The Director of Public Prosecutions, 189 Commonwealth Law Reports 51 at pages 73 to 74 in the judgment of Justice Dawson. His Honour pointed out that that champion of the Common Law, Chief Justice Coke, had in his  Institute of the Laws of England in the early 17th century accepted that Magna Carta could be altered by English Parliament. Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments. Justice Dawson went on: 

"Judicial pronouncements confirming the supremacy of Parliament are rare but their scarcity is testimony to the complete acceptance by the Courts that an Act of Parliament is binding upon them, and it cannot be questioned by reference to principles of a more fundamental kind." 

The passage goes on and concludes: 

"There can be no doubt that Parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom." 

That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities. The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public. 

The applicant had a right to be tried according to the laws of the State of Queensland in force in 1998. He was justly tried in accordance with those laws. His claim to enjoy some special protection conferred in legislation necessary to deal with particular social and political circumstances some centuries ago in a faraway country should be rejected as foolishness. The judgment of the District Court was clearly right. 

The applicant also seeks leave to appeal against the sentences imposed but as he did not complain about them in his appeal to the District Court and advances no satisfactory reason why he did not do so, those applications should be refused. In fact, it appears that the complaint about sentence is really part and parcel of the complaint about the convictions, the applicant taking the view that any sentence imposed would have been excessive because he ought not to have been convicted. In my judgment the applications for leave to appeal against conviction and sentence should be refused.

Divulgation, Withdrawal and MR

CBC reports that the National Gallery of Canada is seeking legal advice over moral rights claim by Toronto artist AA Bronson in the 'Wojnarowicz' dispute involving the US National Portrait Gallery (NPG).

Bronson has asked the NPG to return his Felix, June 5, 1994 photograph from the NPG Hide/Seek: Difference and Desire in American Portraiture exhibition. Hide/Seek has attracted criticism from religious fundamentalists on the basis that difference (eg gay people) should not be recognised. The NPG has attracted criticism over removal of an extract of David Wojnarowicz's A Fire in My Belly video piece. That extract features an 11-second sequence in which ants crawl over a bloodied cross - somewhat distressing, I suspect, for most viewers than the anguish evident in crucifixions depicted by artists such as Grunewald, El Greco and Velasquez but opportune for expressions of outrage by small, extreme advocacy groups. (Let's not think about the lip-smacking gore in several Mel Gibson movies) Objectors have condemned the piece as "anti-Christian"; the NPG has explained removal on the basis that the video was "distracting from the overall exhibition". In a statement proclaiming that 'Smithsonian Stands Firmly Behind "Hide/Seek" Exhibition' [PDF] the institution advises that -

The museum and the Smithsonian stand firmly behind the scholarly merit and historical and artistic importance of the exhibition.

Acknowledging that some visitors may prefer not to encounter some of the subject matter in the exhibit, the museum installed signs at both entrances, reading "This exhibition contains mature themes."

Parental guidance signs in exhibitions featuring Mannerist and Baroque grand guignol - The Flaying of Marsyas, The Martydom of St Sebabastian, lurid S&M involving St Agatha or sundry other martyrs - might be advisable.

In answering "Why did the Smithsonian make the decision to remove the A Fire in My Belly video by David Wojnarowicz from the exhibition?" the NPG indicated that -

Many people who contacted the Smithsonian and some members of Congress were upset about segments of the four-minute video (optionally accessed by visitors on a small touch screen in the exhibition) because it depicted a crucifix on the ground with ants walking on it. They interpreted the video imagery as anti-Christian.

This imagery was part of a surrealistic video collage filmed in Mexico expressing the suffering, marginalization and physical decay of those who were afflicted with AIDS. In the video, Wojnarowicz used religious imagery placing his work firmly in the tradition of art that uses such imagery to universalize human suffering.

Smithsonian officials and museum leaders are sensitive to public perceptions of the Institution's exhibitions. In this case, they believed that the attention to this particular video imagery and the way in which it was being interpreted by many overshadowed the importance and understanding of the entire exhibition. Thus the decision was made to remove the video from the exhibition.

Bronson's work - for me far more haunting than the Wojnarowicz video - is on loan to the NPG from the Ottawa-based National Gallery of Canada (NGC). He has reportedly sent an email to NGC director Marc Mayer claiming that his "moral rights under Canadian and American copyright law" are being violated because the NPG is refusing to return the photo.

I am instructing the National Gallery of Canada to remove my work Felix, June 5, 1994 from the Hide/Seek exhibition at the National Portrait Gallery in Washington, D.C., immediately, and until such time as the David Wojnarowicz video is restored in full

Mayer has responded that

Now that we have been contacted by your lawyer on this complicated legal matter, you will understand that as representatives of the public interest, the responsible thing for us to do is to seek our own legal advise [sic]

The NPG has said it will not meet Bronson's request to remove his work from the exhibition. That refusal is consistent with US jurisprudence under the Visual Artists Rights Act (VARA) and with the Moral Rights provisions in Australian copyright law. As Maree Sainsbury comments in her Moral rights and their application in Australia (Federation Press, 2003), the droit de retrait et de repentir has limited practical application.

Magic Plastic and bolts of joy

The Australian Competition & Consumer Commission, in an admirable expression of skepticism, has questioned promotion by vendors of Power Balance - the magical performance aid for athletes and wannabees.

Power Balance? According to its US site it is -

Performance Technology designed to work with your body’s natural energy field. Founded by athletes, Power Balance is a favorite among elite athletes for whom balance, strength and flexibility are important.

How Does the Hologram Work?

Power Balance is based on the idea of optimizing the body’s natural energy flow, similar to concepts behind many Eastern philosophies. The hologram in Power Balance is designed to resonate with and respond to the natural energy field of the body.

Judging by the illustrations Power Balance comprises a plastic wristband with an implanted hologram. It's endorsed by numerous leading athletes.

History suggests that leading athletes will endorse a range of things, including lucky rabbit feet (albeit not so lucky to the rabbits who provided the feet), holy medals, blessed scrolls and other parapsychological bling.

The promoters state that -

Created by athletes dedicated to holistic care, Power Balance is a Performance Technology that is a favorite among elite athletes and individuals that strive to perform at the top of their game, no matter what it is. We're helping people excel with a revolutionary technology that's changing the way people live, work and play.

We started out with a single mission - bring out the best in people by bringing science and nature together. What we've been able to accomplish is extraordinary. Our customers are our biggest fans. Just listen to what some of them have to say.

Power Balance is committed to bringing our wearable performance technology to everyone so each individual can maximize their potential and live life to its fullest. We are dedicated to compassionate business practices, a firm belief in our products, and helping people every day.

A skeptic might query the terms "revolutionary", "science" and "nature".

The Therapeutic Products Advertising Complaints Resolution Panel indicated earlier this year that -

In relation to the advertised product, it stated that "you can restore balance & harmonic equilibrium… with a new ‘switch’", "Power Balance, after years of research and development, has produced a system to safely restore and optimise the electro-magnetic balance within the human body… IMMEDIATELY", "Power Balance's Mylar Holographic Disk (the same substance used to keep static electricity from damaging electrical components) has been imbedded with an electrical frequency that restores your body's electrical balance, promoting a free exchange of positive and negative ions and align your body's energy pathways", "the high density Disk acts much like a switch, resonating within your system and turning on your energy field while it clears the pathways so the electro-chemical exchange functions like the well-tuned generator it was meant to be", "RESULTS ARE ALMOST IMMEDIATE ... & TRULY PHENOMENAL", "unlike many other ionic electro-magnetic devices, the Power Balance Holographic Disks begin to work almost instantly, restoring optimal electro-magnetic balance and promoting free flowing energy pathways ... NO PROMISES, JUST RESULTS", and "the benefits are clear: faster synaptic response (brain function), enhanced muscle response (in both fast and slow twitch tissues), increased stamina (better oxygen uptake and recovery), more flexibility (faster recovery), and vastly improved gravitational balance."

The other advertisements were less extensive but made similar representations in relation to such benefits as "faster synaptic response (brain function)", "enhanced muscle response (in both fast and slow twitch tissues)", "increased stamina (better oxygen uptake and recovery)", "improved flexibility (faster recovery)", and "vastly improved gravitational balance."

The Panel requested the vendors to -

to withdraw any representations that the advertised product can restore balance and equilibrium, has effects on the "electro-magnetic balance within the human body", restores the body’s "electrical balance", has effects on ion exchange within the body, causes faster synaptic response, affects brain function, causes enhanced muscle response, increases stamina, improves oxygen uptake, improves recovery, improves flexibility, or improves "gravitational balance", together with any other representations that the advertised product is for therapeutic use.

The ACCC has now stated that -

Misleading advertising claims about the alleged benefits of Power Balance wristbands and pendants have been withdrawn by the manufacturer after Australian Competition and Consumer Commission intervention.

As a result consumers will be offered a refund if they feel they have been misled and Power Balance has agreed not to supply any more products that are misleadingly labelled.

Power Balance Australia Pty Ltd claimed the wristbands improve balance, strength and flexibility and worked positively with the body's natural energy field. It also marketed its products with the slogan "Performance Technology". The ACCC raised concerns that these claims were likely to mislead consumers into believing that Power Balance products have benefits that they do not have.

"Suppliers of these types of products must ensure that they are not claiming supposed benefits when there is no supportive scientific evidence," ACCC chairman Graeme Samuel said today.

"Consumers should be wary of other similar products on the market that make unsubstantiated claims, when they may be no more beneficial than a rubber band," Mr Samuel said.

Power Balance has admitted that there is no credible scientific basis for the claims and therefore no reasonable grounds for making representations about the benefits of the product. Power Balance has acknowledged that its conduct may have contravened the misleading and deceptive conduct section of the Trade Practices Act 1974.

One reader rather naughtily asked what's the difference between an athlete-endorsed rubber-band-with-hologram, a St Christopher medal or kabbalistic red string. Can we expect the ACCC to take action against vendors of coloured twine?

The answer is no. Religious bric a brac is fine (decorate yourself with string if you believe that keeps away the evil spirits, entities that are not recognised in Australian law): its authority is a matter of religious faith, rather than a claim of scientific authority, albeit many people confuse the two.

The ACCC media release commented that "When a product is heavily promoted, sold at major sporting stores, and worn by celebrities, consumers tend to give a certain legitimacy to the product and the representations being made". It goes on to indicate that -

To address the ACCC's concerns Power Balance has provided the ACCC with court-enforceable undertakings that it will:

* only make claims about its products if they are supported by a written report from an independent testing body that meets certain standards
* publish corrective advertising to prevent consumers from being misled in the future
* amend the Australian website to remove any misleading representations
* change the packaging to remove any misleading representations
* offer a refund to any consumers that feel they have been misled, and
* remove the words "performance technology" from the band itself.

The media release concides with announcement in the US that the chapel of Our Lady of Good Help has become what the NY Times describes as "one of only about a dozen sites worldwide, and the first in the United States, where apparitions of the Virgin Mary have been officially validated by the Roman Catholic Church".

The holiness of that site reflects the 1859 claim by Belgian immigrant Adele Brise that she had been visited three times by Mary, who -

hovered between two trees in a bright light, clothed in dazzling white with a yellow sash around her waist and a crown of stars above her flowing blond locks

That visitation came a year after the Virgin appeared in Lourdes, France, to other devotees.

The Times reports that -

On Dec. 8, after a two-year investigation by theologians who found no evidence of fraud or heresy and a long history of shrine-related conversions, cures and other signs of divine intervention, Bishop David L. Ricken of Green Bay declared "with moral certainty" that Ms. Brise did indeed have encounters "of a supernatural character" that are "worthy of belief".

The text of the Bishop's declaration is available [PDF].

The Times seems just a tad cynical, reporting that -

Catholic leaders described the decree in Wisconsin as a bolt of joy at a trying time for the Catholic church, which is troubled by revelations of sex abuse.

"This is a gift to the believers", said the Rev. Johann Roten, director of the International Marian Research Institute at the University of Dayton.

"It would be devious to say that this was somehow pulled out of the attic to exorcise the problems of the church today", Father Roten said in a telephone interview. "But hopefully this will have a beneficial impact on the people, showing them that there are ways of living with faith that are very pure."

The Diocese of Green Bay is under fire from lawyers in an abuse-related lawsuit, who charge that it has obstructed justice by destroying potentially incriminating files on former priests.

Ephemera

From Lewis Lapham's 12 December post 'Sweet Celebrity' -

Let’s consider for a moment the fates of two men who took unique paths in military life and whose careers were once intertwined: General David Petraeus, now our Afghan War commander, and his former subordinate General Stanley McChrystal, our former Afghan War commander before he became the first general since Douglas MacArthur to be axed by a president -- in his case, for a Rolling Stone version of “loose lips sink ships” (or administrations). Petraeus, the most political U.S. general in memory, dusted off the failed counterinsurgency doctrine of the Vietnam era, made it bright and shiny again, built fabulous relationships in Congress and in militarized Washington think tanks, and then rode it all to the heights in Iraq and at U.S. Central Command. Now, in Afghanistan, without the slightest compunction, he's left his beloved counterinsurgency doctrine in a ditch as conditions on the ground worsen. Instead, he’s called in the firepower and the propaganda, both in double measure. (Oh, and in case you hadn't heard, we’ve finally achieved glorious victory in the godforsaken village of Marjah in southern Afghanistan where a senior Marine general recently announced that the battle against the Taliban there is “essentially over.” Huzzah!)

Thanks to such a string of dazzling “successes,” Petraeus has scaled the heights of American celebrity. Just the other day, he reached Mount-McKinley-esque elevations (with Everest still ahead) when ABC’s Barbara Walters declared him not just an “American hero” (though that, too), but the Most Fascinating Person of 2010! He topped a list which included Justin Bieber, Sarah Palin, and future British princess Kate Middleton, possibly because he has so much more bling than they do.

Fake valour

The ABC reports that 84 year old Arthur 'Rex' Crane - former federal president of the Ex-Prisoners of War Association of Australia, supposedly a war hero, in reality guilty of identity offences - has been sentenced to four years in jail (suspended after six months) and to repay $413,000 in benefits.

Crane attracted media attention and community esteem as a veteran who had been tortured by the Japanese in 1942 (eg having one of his hands nailed to a tree and his head smashed by a soldier wielding a baseball bat). Alas, he was not on active service at that time and in fact was safely at school in South Australia.

Crane was exposed last year, as noted in this blog, and went on to plead guilty to defrauding the Commonwealth and obtaining a financial benefit by deception. He had falsely claimed $689,491 in war service pensions.

Military historian Lynette Silver is reported as commenting that the Veterans' Affairs Department, elsewhere characterised as one of the more torpid parts of the Commonwealth bureaucracy, should be investigated: "I was astounded that not enough research was done. For the military side, we had him stitched up within one month. It seems extraordinary that this really got past the authorities, and it makes you wonder exactly what was going on at the time."

Last year she commented that -

That story has been concocted very, very cleverly. He has chosen the most obscure background for himself, which a normal person could not trace, and which most people would not question.

Veterans' Affairs Minister Warren Snowdon stated [PDF] that the department works hard to ensure veterans receive their lawful entitlements -

The Australian Government takes very seriously the recognition and respect of those who have served our country and has no tolerance for those who fraudulently claim that recognition.

All allegations of fraud are investigated thoroughly.

The department has a dedicated compliance section that investigates all suspected cases of fraudulent activity.

Other ongoing measures that act as a deterrent are proof-of-identity checks and departmentally initiated reviews.

Format Rights, Sovereign Citizens and Legal Fictions

Still catching up on the semester's reading ...

In Robin George Le Strange Meakin v BBC, Paul Smith, Celador Productions, Martin Scott [2010] EWHC 2065(Ch) the English High Court (Chancery Division) has held that copyright could exist in a TV game show format.

In this instance summary judgment was granted to the defendants, with the Court finding that on the facts there was no derivation of the defendants' work from the claimant's and that the defendants had not taken a substantial part.

Robin Meakin claimed that game formats he had developed (eg 'Cash Call Millions Live') had been used by the defendants to develop and produce a series of programs ('Come and have a go if you think you are smart enough') that infringed his copyright and were based on confidential information that he had disclosed. He sought damages of up to £20 million.

Unauthorised exploitation of 'pitches' seems to be a perennial complaint, judging by interviews with independent program developers quoted in Georgiana Born's Uncertain Vision: Birt, Dyke and the Reinvention of the BBC (Secker and Warburg, 2004). They have featured in cases such as Green v Broadcasting Corporation of New Zealand [1989] RPC 700. Works on rights in program formats include'Format Rights: Opportunity Knocks' by Smith in (1991) 3 Entertainment Law Review 63, S Lane 'Format Rights in Television Shows: Law and Legislative Process' by Shelly Lane in (1992) 13(1) Statute Law Review (1992) 24, 'A Case for the Federal Protection of Television Formats: Testing the Limit of 'Expression'' by Frank Fine in (1985) 17 Pacific Law Journal 49 and 'Free to Air? Legal Protection for TV Program Formats' (John M. Olin Law and Economics Working Paper No. 513, 2010) by Neta-li Gottlieb.

Meakin communicated his proposal to Celador in November 2002 and to the BBC in September 2003. His game show format involved contestants at home using phones (alongside studio contestants) to win prizes on a live TV quiz though cumulative scores. Perhaps not the most original of concepts, albeit I'm unqualified to assess on the basis that Ii avoid game shows the way that vampires avoid holy water and bright sunlight. Inconveniently, competitor CHG communicated a similar proposal to the BBC in May 2002, the same month that the Beeb broadcast Test the Nation - a quiz program which featured participation via studio contestants and contestants at home via SMS and the net.

In considering the claims Arnold J (no relation) indicated that the Court was prepared to assume that there may be literary and dramatic copyright in the works in question, at least for the purpose of a summary judgment application.

In finding for the defendants the Court unsurprisingly held that Meakin had to show a real prospect of success regarding reproduction of a substantial part and derivation, concluding that Meakin's evidence of derivation concerned alleged similarities: "common features that are really in the nature of very general abstract similarities" that were evident in earlier works and were insufficient to give rise to an inference of copying. They were "no more than general ideas of a fairly high level or abstraction and, moreover, commonplace ideas in the field of television game show formats". The Court referred somewhat tartly to Meakin's claims embodying "a series of conspiracy theories" and that there was no realistic prospect of him successfully establishing that a substantial part of the expression of his proposals had been taken.

For a non-specialist much of the fun lies in the corporate names: Cat and Mouse Ltd ("a specialist IT supplier"), Chatterbox Partnership, Zeal Television, Talent Television ...

There is amusement of a bleaker sort in two recent 'sovereign citizen' disputes: Van den Hoorn v Ellis [2010] QDC 451 and Wollongong City Council v Dr Masood Falamaki [2010] NSWLEC 66.

In Van den Hoorn the Court states -

This is an appeal by a person who has described himself in the Notice of Appeal filed 18 June 2010 as “Sovereign Freeman JOHAN”, an agent and a “Freeman on the Land” appearing on behalf of “J. H. VAN DEN HOORN”. The appeal, which I have taken to be against both conviction and sentence – although that is not immediately clear from the Notice of Appeal – concerns convictions made on 16 June 2010 at the Magistrates Court at Cleveland pursuant to four charges brought concerning: using on a road a vehicle that was not a registered vehicle; driving an uninsured vehicle on a road; without reasonable excuse, using on a road a vehicle whilst a number plate attached to it was cancelled; and driving a motor vehicle on a road while not being at that time the holder of a driver licence. 

The appellant, who appeared in person, while conceding that I could address him as Mr Van den Hoorn, asserted, as he had done in the Magistrates Court, that he was merely the “owner of the created fictions known as JOHAN HENDRICK VAN DEN HOORN and JOHN HENRY VAN DEN HOORN, being created fictions fraudulently owned and controlled by legal fictions” which included “australia inc” and “queensland inc”, as well as “queensland transport inc” and “numerous other incorperations and deciets”: see Exhibit 10 (filed in the lower court at trial). 

I have, as Greenwood J did in Skyring v Commissioner of Taxation [2007] FCA 1526 at [5], closely examined the evidence, the appellant’s written submissions, the content of the constitutional and other legal points that he made, as well as his oral submissions concerning his arrest by one of the investigating police officers, subsequent “injustice” and other “exceptional” circumstances. 

Constitutional notices 

In conformity with the approach adopted by the Queensland Court of Appeal in Kobylski v Queensland Police Service [2007] QCA 50, since there is vexation in the appellant’s pursuit of unmeritorious constitutional arguments, it is appropriate that no notices under s 78B of the Judiciary Act 1903 (Cwth) were given in relation to this appeal. As noted by Mullins J, with whom McMurdo P and Keane JA expressly agreed, s 78B operates “only when the circumstances in which it applies appear to the Court to be present and not because a party asserts that those circumstances are present”: at [10], relying on earlier cited authority. In Kobylski, reliance had been placed upon, among other laws and sources, the Commonwealth of Australia Constitution Act, Magna Carta , the Bill of Rights, and the Bible: at [6]. 

Grounds of appeal 

The grounds of appeal stated in the Notice of Appeal require reference to an attached list, while expressly stating in the Notice that they include jurisdiction, standing, authorisation, false imprisonment and errors in law. The attached list, of 7 pages, contains mainly grounds that are unintelligible without reference to other documentation (to which I will presently refer). It includes asserted reasons for the purpose of justifying a general grant of leave in circumstances where no such grant of leave is necessary, although special grounds for leave to adduce new evidence would be necessary: see s 223(2) of the Justices Act 1886. Lastly, for present purposes, it states that, on the hearing, the appellant intends to rely upon various documents including “a trial notice”, “documentations posted on the web” and, after noting “this free man cannot swear” in reference to an affidavit to be sworn (but which was not), refers to various passages from the New Testament (King James version). 

The additional documents mentioned earlier, were, first, some 18 pages contained in a document entitled Certificate of Readiness, filed 29 September 2010, and, earlier, and secondly, an Outline of Argument (although otherwise described) the appellant had filed on 1 July 2010. That document comprises 245 pages. It provided the basis for the appellant’s oral submissions before me. 

Because I will deal with, mainly, the Outline of Argument, the document which comprises the Certificate of Readiness has not been the subject of much further consideration. This is not only because it is essentially incomprehensible in isolation but also because the much more detailed Outline of Argument appears to better encompass the notion of what is attempted to be described in the former document. 

Respondent’s contentions 

Although it may be seen to be somewhat unusual to address the respondent’s arguments at such an early stage, besides contending that the learned Magistrate did not fall into error and that the decision reached was open on the evidence and not contrary to law, it states – importantly for the present consideration - that the appellant’s Outline of Argument is “incomprehensible” and shows no reason why any statute in Australia should be constitutionally invalid (specifically, with respect to the reference to the Magna Carta , contending that this was an area of “settled law”).

Further

Insofar as it is discernible, particularly from the Outline of Argument of the appellant, the constitutional arguments are centred on what has been termed an “assumed” jurisdiction “over a free man” because the magistrate “lacked lawful standing to judge a free man” who was “in good standing”. The apparent basis for this lack of jurisdiction is that the Constitution (Cwth) accords sole relevant legislative powers to the Federal Government or, alternatively, that any adverse (to the appellant) precedential authority, if it previously has existed, ended when the Constitution (Qld) was rewritten in 2001. Additionally, there was the puzzling contention that, before the lower court, the appellant was assumed to be a “corperation [sic]” by the fact of the court accepting the alleged “capitalisation of (his) family name” which so led to him being deemed to be a “corporative fiction of limited liability” when he was “a living/breathing soul ... of full liability”. Its “liability” relevance, if any, seems to be limited to the statutory requirement of mandatory third party personal injury insurance for motor vehicles. The “person” aspect will be canvassed when discussing the relevant Queensland legislation. 

This constitutional argument is a variant on those constitutional arguments that have been soundly rejected in previous appellate and other decisions. The variation is the bringing into play of the Constitution of Queensland 2001, which commenced on 6 June 2002. Before turning to its effect, if any, on the arguments previously rejected, it is necessary to turn to the consideration of those earlier arguments. 

Concerning Magna Carta , the Queensland Court of Appeal decision in Carnes v Essenberg; Lewis v Essenberg [1999] QCA 339 obliges me to conclude that it is “completely inaccurate” to say that colonial parliaments, or indeed the Parliament of Westminster, could not alter, modify or even repeal the provisions of centuries old legislation: see Chesterman J (as he then was) at p 4. Accordingly, after the Australian Courts Act 1828, enacted by the Imperial Parliament, became part of the law of Queensland upon its separate establishment in 1859, the Colonial Laws Validity Act 1865, also passed by the Imperial Parliament, removed doubts about the extent to which Australian Colonial Parliaments could alter imperial legislation as it applied to the colonies: at p 5. This had the consequence that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law: also p 5. As Chesterman J goes on to note, the matter is made even more explicit by s 3(2) of the Australia Act 1986, which provides that no law and no provision of any law made after it by the Parliament of a State shall be void or inoperative on a ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom: also p 5. 

Thus, as is clearly concluded in Carnes (supra), both Magna Carta and the Bill of Rights are not untouchable and unalterable sources of private rights or immunities. As for the Bible, it never has had civil effect in this State. This has the result that the legislation in Queensland which was the subject of consideration by the learned Magistrate at first instance, as well as the Justices Act 1886, are Acts that have both abrogated the rights of citizens to do as they wish and have changed the manner in which prosecutions may be brought. Thus, where, as here, the appellant was charged with offences for which he may be summarily convicted by a Magistrates Court [s 3(4) of The Criminal Code], he had no right to a trial by jury, being subject to that specific legislation that was referred to in the Reasons for Judgment at first instance. 

As for the authority of Queensland Courts, the Queensland Court of Appeal decision in Clampett v Hill and Ors [2007] QCA 394 binds me to conclude that, since the respective Queensland Courts were duly constituted by the Queensland Parliament when it passed their constituting legislation, the commissions given to judicial officers, under the hand of the Governor, are valid because the authority of the Governor has been unaffected adversely by Acts such as the Constitution Act 1867 (Qld): at [14]. As the Court there unanimously remarked, any such argument so agitated had been previously rejected in Sharples v Arnison and Ors [2001] QCA 518: also at [14]. 

Hence, it is now appropriate to consider the effect, if any, on the above conclusions, of the Constitution of Queensland 2001. As stated in s 3 of that legislation, the Act declares, consolidates and modernises the Constitution of Queensland, though noting that certain earlier Constitutional provisions, because of their special additional procedures - including approval by the majority of electors at a referendum - that such may require were they to be so consolidated, in addition to ss 30 and 40 of the Constitution Act 1867, were not consolidated. 

It is difficult, of course, to fully comprehend what particular argument was presented on this front. The appellant pointed to the fact that the Act does not include the word “Act” in its title, that a referendum had not been held and that the Act refers to the Queen or King “for the time being”: see, for instance, s 4. Further, it is elsewhere contended that it has “never been ratified by HRH”. Necessarily, if it is contended – which is not clear – that this particular Act was invalid (for one, or some, or all of those reasons), it is difficult to see how it could possibly affect the continuance of the application of the conclusions just canvassed as outlined in those Court of Appeal decisions. Beyond that, to the extent to which the “grounds of appeal” refer to the issue, they appear to assert that the very enactment of the Constitution (Qld) had the effect that any authority that the learned Magistrate had then lapsed. But it is impossible to see how that could possibly occur because of that particular Act. As is clear in merely stating the three arguments presented, none of them have the effect of invalidating the Constitution of Queensland 2001. First, there is no requirement for this legislation to have the word “Act” in its “title”. Secondly, the reason that a referendum was not held is that it was not required (as is obvious from the Note to s 3). Thirdly, the reference to the Queen or King “for the time being” does not offend any legal principle, or at least one that has any effect on the validity of this particular legislation. The mere fact that the earlier constitutional Act in 1867 did not recite such words is irrelevant. As for “ratification”, even if it was the case that the present Queen were personally to have a role in enacting present Queensland legislation, there was no evidence led concerning any relevant failure by Her or Her Governor. 

Lastly, to the extent to which any issue was raised that there are no valid Queensland Acts because the Constitution (Cwth) does not allow such acts to have validity, in a case which specifically refers to the Constitution of Queensland 2001, the Queensland Court of Appeal in Barton v Beattie and Ors [2010] QCA 100 concluded that the Queensland Parliament is empowered to make “laws for the peace, welfare and good government” of Queensland, as provided for by s 8 of the Constitution of Queensland 2001, s 2 of the Constitution Act 1867, and s 107 of the Constitution (Cwth): at [9]. As the Court of Appeal there stated, that legislative power undoubtedly comprehends legislation which amends existing State legislation concerning, there, the system of local government: also at [9]. Analogously, such legislative power undoubtedly comprehends the legislation in question here.

In Wollongong City Council v Dr Masood Falamaki [2010] NSWLEC 66 the Court refers to claims by Falamaki's representative David-Wynn Miller.

Miller, referred to in another of the Falamaki judgments, is an exponent of sovereign citizenship, aka OPCA. In the current judgment the Court states - 

[35]  I invited Mr Miller to focus the submission that he would give on 15 April upon the rule that Dr Falamaki invoked, namely Pt 36 r 15 and the cases that inform the operation of such a rule. It is appropriate for reasons which I will next make apparent, that I quote from the transcript both my observation to Mr Miller and his response. 

“HIS HONOUR: At 2 o’clock tomorrow the arguments will conclude, the hearing will conclude within that two hours and can I respectfully remind you that your focus would and should be upon the particular rule that authorises or rather provides to me a discretion to set aside perfected orders. There are a large number of decided cases that relate to that. 

MILLER: Conclusionary law not based on now time jurisdiction under rules of evidence are void for one thing. Two, I’ll give you a little secret. Every word that starts in the English language with a vowel, a, e, i, o and u and followed by two consonants is a word that means no contract. If you’re arguing a condition, a negative condition which can’t be proved under a seal which says syntax would be used in its correct format then the technology of writing will be syntaxed accordingly. The words will be identified for their true syntax and the value of that word will be brought to this court so if you have a rule our syntax can tell you exactly what it means frontwards and backwards because the order of operations of syntax are one and the same planet- wide in all five thousand languages, just like as a track multiplying and dividing for the operations of numbers. It is universal communication issues. Closure has to be on the table here for everything under maritime law of commerce because a piece of paper is a vessel in a sea of space and vessels must give closure for their movement between point A and point B and I’m a past master and as a plenipotentiary judge of 75,000 hours of training and 30 years I know how to dissect all this. There hasn’t been anything put in front of me in 30 years that I haven’t been able to dissect to its syntax.

[36] Mr Miller appeared for Dr Falamaki at the resumed hearing of the matter on 15 April. He proceeded for almost one and a half hours to make submissions in terms similar to those that I have quoted in the preceding paragraph. When, after listening to his philosophical discussion as to grammar and syntax, I sought to direct him to the orders which were the subject of Dr Falamaki’s application, the following exchange took place:

“HIS HONOUR: This case is not about sentence structure and syntax. It’s about orders which I’m sure Dr Falamaki can read and understand. 

MILLER: Actually, he doesn’t. 

HIS HONOUR: I see. 

MILLER: Because when he looks up the definition of the words, he can’t find them. They don’t exist and there was no closure put on the documents for the modification of language and if you don’t show your closure, what the volition is of the content of the moving party under maritime law, that document is moot. 

HIS HONOUR: We’re not dealing with maritime law here. 

MILLER: That’s a maritime vessel. It’s got a stamp on it. It’s a vessel. All paper is a vessel in a sea of space and therefore it has to fly a vessel. It has to pay its postage to go between point A and point B. The bailiff over here is actually the letter carrier to transport the letter from myself to you. The postage has been paid on my letter, to go to you so that you could mark it as evidence. The postage has been paid for me to bring it from the street. Dr Falamaki has also signed it. To transport the vessel from the street to the port of the court. Have it filed and filed stamped. The clerk of the court file stamps the document and received the vessel into the port of the court and signs their name across the received stamp and I also cancel that stamp as well and then it goes to you for adjudication. 

I know the procedures of how vessels flow through the court but that shortcut, everybody likes to take the shortcut and skip over those things. I don’t take shortcuts, I follow all the rules and regulations that are correct to move that vessel as correct evidence into this court. You’ve received it as correct evidence, it was carried to you by the bailiff or a tipstaff. So the documents are delivered to you and now it’s your choice to make a determination and if you have a problem with what syntax is and how it works on the back of the cover of my book we have a complete outline that took six years to research as to the accuracy of how syntax functions so that the information that I bring to this court, I can back it up and you have your styles manual that Australia publishes, we have a styles manual that the United States government, that China, Russia, all the other countries of the world have their style manuals to communicate under a standard of styles and a standard of syntax and mathematical procedures otherwise we wouldn’t have communications. 

When those styles are violated and the modifications are allowed to go unchecked we have chaos and so I brought the mathematical interface on April 6 1988 when I broke the code and I was able to mathematically certify it is what has created this book to advertise how the math interface of language now functions in now time. Not only that all judges worldwide and attorneys worldwide have been asked to try and defeat this and find out if this is a lie and they’ve all come back to certify the fact. This is required study at Scottsdale Arizona and Reno Nevada at the judge institutes. I have been teaching there for 15 years now. Universities that teach law for lawyers are required to study this book so that they understand what syntax means. We’re in a changing world. You can call my government, you can call the United States Supreme Court, your judge can call your High Court down here, you don’t think they haven’t contacted Washington and talked with the Supreme Court to compare notes as to what’s going on and how big this things has gotten and how many cases are involved with this worldwide? I invite you to do it, take my passport number, run my passport and check the 38 pages of information, credentials I have on that as to my travels around the world to educate. 

When I was invited to this case I looked at the paperwork and I said, this is all wrong, it’s impossible for a case to run as long as it has but because that nothing has been said, I said show me the first piece of paper, the first day of trial and when that first day of trial was handed to me I said I syntaxed it and said it’s in a box, it’s written in adverb/verb, there’s no correct sentence structure, therefore it’s mute. If you build a case on a lie, it’s a lie. From what I understand you’ve just been brought in as a judge to sit on this case after all the other judges have recused themselves because they know it’s a fact. I don’t know what your position is or what the politics are going on behind the scenes here but I can pretty well put the pieces together, I’ve been around the court system for 30 years.

Craig J's comment is 

[37] Regrettably, I did not find the submissions helpful in addressing Dr Falamaki’s claim.

No bells on the bunny

Last year this blog reported the Federal Court decision in Chocolaterie Guylian N.V. v Registrar of Trade Marks [2009] FCA 891, where Sundberg J upheld refusal trade mark registration of Guylian's seahorse-shaped chocolate. One cute chocolate looks much like another and thus does not gain a shape mark.

IPKat now reports that the General Court of the European Union in cases T-336/08, T-337/08, T-346/08, T-395/08 Chocoladefabriken Lindt & Spruengli v OHIM and T-13/09 Storck v OHIM has ruled that chocolate rabbits, reindeer, mice and small bells - like Guylian's chocolate sea creatures - lack distinctiveness and thus fail to meet requirements for shape protection under the Community trade mark regime (ie EU-wide trade mark protection).

Lindt had sought to trade mark the shape of a plain chocolate lapin. It had also sought to trade mark chocolate reindeer and rabbits wrapped in gold foil with a red ribbon around their little chocolate necks. It wanted protection for the ribbon and attached bell. Storck had sought a Community trade mark for the shape of a chocolate mouse.

According to the Court the shapes are devoid of any distinctive character: rabbits, reindeer and mice are typical shapes in which chocolate and chocolate goods are presented at Christmas and Easter. Presumably the same would be said of marzipan pigs and jelly snakes. Ribbons and bells are also insufficiently distinctive.

There's a short book - or at least a conference paper - to be written on trade marking confectionary.

Embraceable you

The Australian Communications & Media Authority (ACMA), the national telecommunications regulator, has reported that "Australians are embracing the digital economy, with big increases in the volume of data downloaded, time spent online and activities undertaken online".

That is the same message we've seen for a decade, but the latest data is interesting once yawns are stifled regarding yet another rendition of "most Australians today have access to the internet at multiple locations" and that "Australians are using the internet more intensively, going online more often for a much wider range of reasons".

ACMA indicates that as at June 2010 approximately 77% of the population 14 years and over had internet access at home. 66% had a broadband connection. Nearly 2.4 million people accessed the internet via their handheld mobiles during June 2010, up from 1.6 million during June 2009. ACMA's Communications Report 2009-10 [PDF] indicated that the total number of mobile services in operation (voice and data services) increased by 7% during 2009–10 to reach 25.99 million services at June 2010. Growth in mobile services was fuelled by an increase in the numbers of mobile wireless broadband services (datacard/dongle connected to a computer), up by 71% over the period to reach 3.46 million at June 2010.

28% of people 14 years and over were estimated to be 'heavy' internet users (ie online more than 15 hours a week) in June 2010, up from 14% during June 2005. A further 27% were considered medium users (between 7 and 15 hours a week) and 23% light users (up to 7 hours a week).

An estimated 155,503 terabytes of data were downloaded in Australia during the June quarter of 2010, compared to 99,249 terabytes during the June quarter of 2009. Online social networking supposedly continues to be a "major driving force in the increasing intensity of online participation, with 8.7 million Australians accessing mainstream social networking sites such as Facebook and YouTube from home during June 2010 alone, spending in total more than 41.5 million hours on these sites. 6 million people accessed "mainstream online news sites" from home during June 2010.

Vetting

The NSW Ombudsman has released a 38 page report on Improving probity standards for funded organisations [PDF].

The Ombudsman states that -

Each year an estimated 3,000 organisations receive almost $2 billion in funds and subsidies to deliver a range of community-based services on behalf of the NSW government. The government's reliance on non-government organisations to deliver services on its behalf will undoubtedly continue to increase in the future. With increases in funding and responsibilities comes the need for greater accountability. Non-government organisations must be transparent and accountable not only for the public funds that they receive but for the services that they provide to many of the most vulnerable in our community. The community reasonably expects that organisations which receive public funds will have adequate safeguards in place in relation to their screening of prospective employees, management committee members and other volunteers.

This report considers the adequacy of probity checking standards that government agencies have put in place for non-government organisations that they fund in the health and human services sectors. In particular, the report focuses on the inconsistency of requirements relating to probity checking of prospective employees, board members and others involved in the planning or delivery of funded services to vulnerable people. Our work in reviewing the delivery of community services and oversighting employment related child abuse allegations has revealed cases where funded agencies have failed to undertake basic checks of prospective employees who have histories of violence, fraud and substance abuse. Failing to identify and properly address serious probity issues has the potential to not only damage the credibility of organisations but also lead to unidentified and unmanaged risks for agencies and the vulnerable individuals they care for and assist. It is essential that effective and consistent probity checking be introduced in these agencies.

Our review has identified that there are significant inconsistencies in the probity checking requirements imposed by funding agencies across the health and human services sectors. Our findings have been informed by our review of specific cases and extensive discussions with government and non-government agencies in this area. It is clear that there is strong support for a more consistent, efficient and rigorous probity checking system to be adopted. This report makes a range of recommendations designed to assist in meeting this challenge.

The report continues -

we asked participating agencies to provide advice on the systems that health and human sector agencies currently use to assess the probity of prospective employees, board members and other volunteers involved in the planning and delivery of government-funded services in NSW. Their responses highlighted significant variations in the measures currently used to identify and address potential probity problems. A critical factor is the differing standards that each government agency appears to expect of the services that they fund. This is reflected in the guidance that they provide which can vary greatly from one government agency to the next. Even within an individual agency, the approach used by differing programs can vary. Occasionally the differences reflect differing levels of risk. However, in many cases, there is no clear rationale for the disparities and inconsistencies.

One of the few forms of probity checking applied with any degree of consistency are the checks imposed by legislative schemes, such as the working with children check for individuals seeking certain forms of child-related employment and the criminal record checks carried out by the Registrar of the Aboriginal Land Rights Act 1983 with respect to individuals seeking positions as a board members, chief executive officers or employees of Local Aboriginal Land Councils. Although these checks are consistently carried out, their effectiveness could be improved. As noted below, NSW’s working with children check is currently the subject of a statutory review.

Some legislative probity checking requirements are also linked to funding conditions, such as the criminal record checks required by certain programs funded by the Federal Government. For example, screening is required by the Commonwealth’s Aged Care Act 1997. Similarly, NGOs in the health sector, which receive Commonwealth funding support, generally require pre-employment criminal record checks. The NSW Ageing, Disability & Home Care agency requires non-government aged care providers to conduct criminal record checks of their employees and some volunteers.

The participants at our roundtable forum and other stakeholders agreed that probity checking is, or at least should be, incorporated into funded organisations’ selection and recruiting practices. This involves processes to identify the best person for a particular job, or the suitability of a volunteer for a particular role in certain circumstances. In addition to those circumstances requiring working with children checks and criminal record checks, the process can also include previous employment checks (including checks for information about any formal employment proceedings or disciplinary issues), and other types of probity or reference checks.

Not the messiah, just a naughty boy

I've been reading The Secret Life of Julian Assange (aged 16) instead of No Ordinary Deal: Unmaking the Trans-Pacific Partnership Free Trade Agreement (Sydney: Allen & Unwin 2011), a worthy collection - edited by Jane Kelsey and with chapters by Jock Given, John Quiggin, Tom Faunce and Patricia Ranald - regarding the FTA.

I jest about Assange, of course, but can't help thinking that his musings from 2006 - revealed via the Internet Archive - are very Secret Life of Adrian Mole, with added crypto and arrogance.

What's one to make of -

Sat 24 Jun 2006: Canberra

Canberra, Australia; the physical realisation of Rand corporation propaganda films about the beneficial effects of the neutron bomb. From the air it's a Walter Burley-Griffin concentric bomb target. From the ground, well, the bomb has landed --- everywhere there's the faceless facades of government. If there is an average Canberrian, milling about the grand emptiness, it is the Doric column. Canberra is encircled by them, weaving about like the Styx, bordering nowhere and Hades, and like the corporate firewall, keeping the dead in and the living out.

After my state sponsored stay at ANU, I ended up at a backpackers filled with some of the 900 Christians from the Australian University Christian Convergence. Most were young women and I turned, somewhat disgracefully, into a sort of Chesterton's Hardy, the village atheist, brooding and blaspheming over the village idiot, while they, for their part, tried to convert me with the rise and fall their bosoms.

One of the devout was the lovely daughter of a New Castle minister. At some point in my unintended wooing of her, she looked up, fluttered her eyelids and said "Oh, you know so much! I hardly know anything!". "That is why you believe in God", I explained. This conversational brutality took her breath away and she swooned.

Assange channelling Barbara Cartland is not pretty. He continued that -

I was exactly what she secretly longed for; a man willing to openly disagree with her father. All along she had needed a man to devote herself to. All along she had failed to find a man worthy of being called a man, failed to find a man who would not bow to gods, so she had chosen a god unworthy of being called a god, but who would not bow to a man.

or

Thu 29 Jun 2006: Krill to the baleen of the feminine

I've always found women caught in a thunderstorm appealing. Perhaps it is a male universal, for without advertising this proclivity a lovely girl I knew, but not well, on discovering within herself lascivious thoughts about me and noticing raindrops outside her windows, stood for a moment fully clothed in her shower before letting the wind and rain buffet her body as she made her tremulous approach to my door and of course I could not turn her away.

But then, just when one might suspect that men are krill to the baleen of female romantic manipulation, I found myself loving a girl who was a coffee addict. I would make a watery paste of finely ground coffee and surreptitiously smear this around my neck and shoulders before seducing her so she would associate my body with her dopaminergic cravings. But every association relates two objects both ways. She started drinking more and more coffee. Sometimes I looked at her cups of liquid arabicia with envious eyes for if there were four cups then somehow, I was one of them, or a quarter of everyone one of them ...

All in all I'd prefer his musings on John Rawls.

Other dicta from St Julian of the Wiki include -

Mon 26 Feb 2007: Average shy intellectuals

X is an "average shy intellectual" and in that is a sounding for characters of his type. This type is often of a noble heart, wilted by fear of conflict with authority. The power of their intellect and noble instincts may lead them to a courageous position, where they see the need to take up arms, but their instinctive fear of authority then motivates them to find rationalizations to avoid conflict.

I'm reminded of a passage in a 23 October NY Times profile by John Burns & Ravi Somaiya -

In an online exchange with one volunteer, a transcript of which was obtained by The Times, [Assange] warned that WikiLeaks would disintegrate without him. "We've been in a Unity or Death situation for a few months now", he said.

When Herbert Snorrason, a 25-year-old political activist in Iceland, questioned Mr. Assange’s judgment over a number of issues in an online exchange last month, Mr. Assange was uncompromising. "I don’t like your tone", he said, according to a transcript. "If it continues, you’re out."

Mr. Assange cast himself as indispensable. "I am the heart and soul of this organization, its founder, philosopher, spokesperson, original coder, organizer, financier, and all the rest", he said. "If you have a problem with me", he told Mr. Snorrason, using an expletive, he should quit.

In an interview about the exchange, Mr. Snorrason’s conclusion was stark. "He is not in his right mind", he said. In London, Mr. Assange was dismissive of all those who have criticized him. "These are not consequential people", he said.

Nothing like dismissing the inconsequential, among whom is presumably found Jaron Lanier - whose critique of Wikileaks strikes me as persuasive.