Flabby

From Peter Hartcher's column in today's Melbourne Age -

the receding floods have left Julia Gillard and Labor newly exposed. A government has much greater freedom of action than an opposition. Gillard's first choice was to decide whether to respond boldly as a national leader or incrementally as a manager.

Bold leadership would have seized the floods as an opportunity to achieve big things, above and beyond the immediate contingency.

For example, Gillard might have declared that the floods across all the eastern states was not just a problem of recovery but an opportunity to rebuild better than ever.

She might have declared it as the moment for a new national productivity drive, a national economic rejuvenation. Drawing on examples such as the Great Chicago Fire of 1871 that allowed the creation of a thrusting modern metropolis and the invention of the skyscraper, she could have turned adversity into opportunity. But Gillard became Labor leader as the embodiment of the party's panicked retreat from ambition. Rudd, Gillard and Swan lost their nerve over emissions trading, immigration and the mining tax, and shrank Labor to present a smaller political target.

The Gillard government has now demonstrated that it is the same creature in the face of unexpected calamity as it was in the face of an election campaign. The flood response confirms that the Gillard government is cautious, timorous, and managerialist. This isn't necessarily bad, just small.

Small and disappointing

Fetishism and Flags on fire

Now that we're over Australia Day - the annual festival of beer, sunburn, burnouts and cheap nationalism - I'm reading 'A Fetishised Gift: The Legal Status of Flags' by Graeme Orr in (2010) 19(3) Griffith Law Review 504-526. Orr's lucid The Law of Politics: Elections, Parties and Money in Australia (Federation Press, 2010) is commended.

Orr comments that -

bridge the gap between cultural studiesʼ insight into nationalism and its symbolics, and the flagʼs legal status, to better understand the unique position occupied by national flags. In doing so it draws particularly on United States, Australian and New Zealand law and practice.

Flag ʻwavingʼ has become more prevalent in many liberal democracies. In such societies, flags occupy not a religious role, but a quiet and quotidian place in what Billig terms ʻbanal nationalismʼ. As a cipher for the whole, a particular flagʼs design is relatively unimportant; what lends it power is a mix of the gravity bestowed by its official designation and the easy commodification lent by a flagʼs easy reproducibility and portability. Unlike other state symbols such as the currency, coat of arms and honorifics, the state does not seek to monopolise the flagʼs use, let alone define its meaning.

Analysis of laws governing flag designation, observance and ʻdesecrationʼ reveals that the law accords the flag distinct status yet only equivocal protection. While the state may crave its citizensʼ fealty, a flag is not a symbol of some distant governmentality. Rather, it is gifted to ʻthe peopleʼ and relies for its relevance on its organic proliferation. As both object and image, people attribute a power to the flag - a power they recognise over themselves and others with whom they share a body politic. A key source of this fetishisation is its official, legal designation. Though it embodies no particular values, a flag is valued, even fetishised, by flag-wavers and flag-burners alike.

He goes on to argue that -

The legal act of designating an official flag – unlike the law governing other national symbols and currencies – is intended to encourage its proliferation, rather than create a monopoly. A flag is not an official symbol in the sense of representing a formal, even distant, governmentality. A flag is inevitably a cipher, and hence a site for contested values. As a result, although the state desires to encourage honour and respect for the flag, and hence the state’s symbolic self, the law is equivocal about punishing flagdestruction, let alone constraining flag use.

Ultimately, if the flag is to maintain its place as something gifted to a people, it relies for its relevance on its reproducibility and organic proliferation. It needs to be valued, indeed fetishised, by flag-wavers and flag-burners alike. Like most fetishes, flag fetishism bestows an arational power upon a common object. An otherwise empty, geodesic design on a piece of fabric is invested not just with the ability to symbolise, even bind, otherwise disparate people within a fractious liberal legal order: it comes to possess such emotional power that its mere sight inspires some to tears and others to jeers.

The article features a nuanced discussion of regulation and flag burning in Australia and New Zealand. I am reminded of Coleman v Kinbacher and Anor (Qld Police) [2003] QCA 575, one of the salient Australian flag burning judgments.

Chesterman J commented

On 1 October 2002 the applicant was convicted of four offences which arose out of an incident on the previous Australia Day in Townsville. The hearing of the charges occurred over five days in July and August 2002. The charges were: 

‘1.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN in a public place namely River Side Park behaved in a Disorderly manner. 

2.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN obstructed a Police Officer namely Andrew KINBACHER in the performance of the Officer’s duties. 

3.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN assaulted Anthony MARINOV with intent to Resist the lawful Arrest of the said Patrick John COLEMAN. 

4.That on the 26th day of January 2002 at Townsville one Patrick John COLEMAN wilfully and unlawfully destroyed one rear passenger side window and damaged one rear passenger side door the property of the Commissioner of the Police Service.’

[4] The Magistrate appears to have evaluated the evidence quite carefully. He made the following findings of fact: 

‘1.That a large number of people of all ages, including children, toddlers, teenagers, family groups and older people, attended the Australia Day celebrations at Riverside Park on 26th January, 2002. (Estimates given range from 1000 (Ms. McDermott) [sic] couple of thousand (Mr. Moriconi) to five thousand (Mr. Jackson) Ms. McDermott [sic] stated there were about a hundred people in her location, in sight and sound of the defendant. 

2.That the defendant planned for it to be an occasion upon which he would make a dramatic form of protest against the Australian government in relation to its attitude to the persons held in detention centres. 

3.That part of this protest was intended to include a burning of the Australian flag in public. 

4.That the defendant in preparation for this activity, placed a quantity of two-stroke petrol in a bottle, and brought with him a brown bed sheet that had been soaked in water, as a safety measure. 

5.That he also prior to coming to the park conducted a “trial burning” by cutting a small piece of the flag, and putting a light to same, although without the application of any petrol. 

6.That after some preliminary vocal protest directed at Mr. Howard, the Prime Minister, (who was not present) and to some extent at Mr. Mooney, the Mayor, (who was present) the defendant made a statement to the effect that he was going to burn the flag he had with him. 

7.That the defendant placed the flag upon the brown sheet that he had laid out on the ground, and sprinkled it with the petrol he brought with him. 

8.That at the time he did this, a number of members of the public were on and about the park area, in his vicinity, but none in close proximity to him; that the nearest person would have been not closer that [sic] 5 metres from him. 

9.That it was self-evident from the actions, and speech of the defendant, what he intended to do, and why he was in fact doing it. 

10.That his actions were responsible for altering the happy festive mood of some of the persons present, and created a significant feeling of ill-will, if not aggression, and disgust, by some members of the public towards the defendant. 

11.That some persons, at least, one of which was Helen McDermott [sic] felt some degree of concern, and unease as to precisely what the defendant was going to do after he lit the flag, some of that concern being because of the presence of a number of small children in the park that day; that Mrs. Bettenay was frightened and angry by the conduct of the defendant. 

12.That about this time, as it became apparent the defendant was making preparations to carry out his stated intentions, the two police officers approached the defendant; that some of the onlookers became more vocal at this time. 

13.That the defendant when he initially attempted to light the flag with the cigarette lighter, was unsuccessful, in that after a brief show of flame, the flame was extinguished. 

14.That this act caused some mirth and laughter to occur in a section of the onlookers. 

15.That officer Kinbacher spoke briefly to the defendant, and a number of times asking him, in effect, to “Please do not light the flag.” 

16.That the defendant ignored that request, stating it was not illegal to burn a flag, and continued to attempt to light the flag, and, after a number of attempts, was successful in doing so. 

17.That as the flag ignited, and proceeded to burn, small pieces of it dropped to the sheet below, one or more of such drops causing flames to more or less spontaneously occur, when the burning pieces made contact with the sheet; that such flames were extinguished by Officer Marinov, and to some extent by the defendant, by their stamping upon them. 

18.That the precise cause of that secondary fire has not been properly shown or proved to the court, although the presence of the petrol accelerant on either, or both, the flag itself, or upon the ground sheet appears to have been a causative factor. 19.That the brown sheet itself did not itself catch fire or substantially burn, with the possible exception of a small, circular hole, as clearly evident thereon; neither did the surrounding grass or vegetation catch fire. 

20.That as the defendant lit the flag, and as the pieces of the flag dropped to the sheet, causing the secondary fire, Officer Kinbacher placed his hands upon the defendant advising him to the effect: “you are under arrest for disorderly conduct.” 

21.Thereafter the defendant, restated, in effect, that it was not unlawful to burn a flag, and proceeded to resist the actions of Kinbacher and Marinov in a most determined an [sic] violent fashion, as detailed in the evidence presented to the Court.’ 

[5] The Magistrate summarised his views on the evidence and submissions relating to the charge of behaving in a disorderly manner in these terms: 

‘The circumstances existing on that day was a family day of entertainment, with a view to celebrating Australia Day. It was a day on which some persons born outside of Australia were officially accepted as Queensland and Australian citizens, in some form of official ceremony involving the Mayor of Townsville. I have personally examined the flag which has dimensions of approx 130cm x 83cm. and the wooden pole, with pieces end to end measures approx. 240cm. In lighting a cloth item of that size, with the use of petrol accelerant, in an open park area with numerous members of the public in the general vicinity, (if not right next to him) including a number of children, the defendant has taken some risk. The flames that occurred unexpectedly on the sheet are some proof of that. Applying an objective test, I accept and find that conduct to have been provocative, disruptive and disturbing, and, in the manner he went about it, could be described as “a substantial breach of decorum”. I find that behaviour to be disorderly.’ 

[6] Section 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (“VGO”) relevantly provides: ‘7. Obscene, abusive language etc. (1)Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear – (e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner; shall be liable to a penalty...’ 

[7] The applicant was arrested for disorderly conduct by Constable Kinbacher. The applicant’s resistance to his arrest was violent. He struck a police officer in the stomach with some force and struggled strenuously to escape apprehension. When finally overcome, handcuffed and put in a police car he kicked out one of its windows. 

[8] During the course of the trial particulars of the charge of behaving in a disorderly manner were asked for, and given. The particulars were: ‘At about 4.50 pm on 26 January 2002 at Riverside Park it will be alleged that whilst setting alight a flag the ensuring fire spread out of control to a ground sheet and surrounding vegetation causing fear, danger of injury and disruption to members of the public.’ The Magistrate found that there was no satisfactory evidence that any vegetation caught fire. There was evidence that the sheet which the applicant had taken with him to suppress any fire that might result from his intended incineration of the flag, itself caught fire. The Magistrate, however, held that the fact that the blanket caught fire was an accident within the meaning of s 23 of the Criminal Code so that the applicant was not criminally responsible for that act. Nevertheless he thought the applicant’s conduct was disorderly. 

[9] The applicant appealed against his convictions to the District Court which, having heard the submissions to the parties on 16 June 2003, dismissed the appeal on 30 July 2003. 

[10] The applicant’s appeal to the District Court identified fifteen separate grounds of appeal. Many of them are general complaints about the outcome. Some took issue with particular findings of fact which did not appear to be critical. There appear to have been two strands to the attack on the Magistrate’s judgment made in the District Court. The first was that the finding that the burning of the sheet was accidental meant that the charge of disorderly conduct as particularised had not been proved because an essential particular had not been established and/or because the remaining conduct could not be regarded as disorderly. As a consequence, it was said, the police officers present had no right to arrest the applicant because he had not engaged in disorderly conduct. He was therefore entitled to resist arrest and attempt to escape unlawful custody in the police car.  

[11] The second strand was that the applicant’s conduct was a ‘direct and forceful political protest’ which was constitutionally protected. 

[12] The function of particulars in a criminal trial was discussed in a decision of this court, The Queen v Trifyllis (CA No 358 of 1998, delivered 11 December 1998) in which R v Saffron (1989) 17 NSWLR 395 was referred to with approval and it was noticed that ‘the function of particulars is the same in criminal as in civil cases.’ In Saffron Hunt A-JA said (455): ‘The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded … the relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings …’ Reference was also made to what the High Court has said in Dare v Pulham (1982) 148 CLR 658 at 664: ‘… Where there is no departure during the trial from the pleaded cause of action, a misconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence …’ Part of that function is to give the opposing party a sufficiently clear statement of the case to allow him to meet it and to identify the issues for decision and thereby enable the relevance and admissibility of evidence to be determined. See Dare at 664. 

[13] The applicant’s point is that the burning of the ground sheet ‘was an integral part of the particulars’. That part of the case was not proved against him in the sense that he was found not to be criminally responsible for that event. The consequence is, so the applicant contends, that ‘an essential element’ of the offence charged against him was not proved so that he should have been acquitted. 

[14] The argument misunderstands the function of particulars and the nature of the charge brought against the applicant. If the facts proved by the prosecution establish beyond reasonable doubt all the elements of an offence then a conviction must follow even though the Crown may have furnished particulars not all of which were made out. If the facts proved against the applicant were sufficient in law to constitute disorderly conduct and they were within the description of the offence given by the particulars the applicant would have been rightly convicted. It would not matter that not all of the particularised actions were proved to have occurred or were acts for which the applicant was not criminally responsible. 

[15] This was the approach taken by the District Court judge on appeal from the Magistrate. His Honour said: ‘The particulars provided … though brief describe a single episode. … The events complained of would seem to have occurred within the space of seconds rather than minutes. It is transparently obvious that the events commenced with the igniting of the flag to which the contents of a flask of petrol had been previously applied. It may well be that the secondary fire to the ground sheet appeared to observers including the police officers as potentially more serious but the appellant could not have been in any doubt that part of the case against him involved the igniting of the flag itself. … In his own evidence he made reference to the secondary fire being unexpected and unforeseeable making particular reference to the wetness of the ground sheet which would seem to have raised a reasonable doubt in the mind of a Magistrate. In effect he was seeking to compartmentalise the episode to argue that the verdict was not able to be supported by the initial actions concerning which there was common ground. The appellant’s own evidence was that he had come along intending to burn the flag and had provided himself in advance with the wherewithal to do so. 

[16] The Magistrate had said: 

‘As to the above (particulars) it has been established, and (the applicant) admits that he lit the flag, and, I think it can be fairly stated, that it did spread, out of control to the ground sheet. There is no evidence of the fire spreading to any surrounding vegetation. There is some evidence to indicate some concern, fright, and anger, to some of the members of the public, particularly the females. Not, perhaps, because of any out of control fire, but due to what the defendant intended to do, i.e. light a fire. … Clearly then, some of the particulars have not been made out. This causes me some concern. On consideration, I am not satisfied that by itself is sufficient basis to dismiss the charge. … The particulars proved, and the findings made, must be considered, and examined, and a determination made as to whether the manner/behaviour could be considered to be disorderly. If this is found to be the case, then surely the offence would be made out.’ 

[17] This approach cannot be criticised. It is correct. 

[18] The judge understood the applicant to be contending that s 7(1)(e) of the VGO was unconstitutional and he dealt with what he understood to be the submission in support of that contention. He rejected it by reference to the remarks of Brennan CJ in Levy v The State of Victoria and Ors (1996-1997) 189 CLR 579 at 595: 

‘A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.’ 

The applicant disavows any constitutional challenge to s 7(1)(e). It does not form part of his application for leave to appeal to this court. His point seems rather to be that because he was engaged in what he regarded as a political protest his right to communicate his criticisms of Government migration policy were protected by the Constitution and his conduct could not therefore be disorderly. 

[19] The Magistrate said: 

‘It is really a balancing exercise that has to be performed – the unquestionable right of the defendant to make a peaceful protest, as opposed to the rights of other persons to enjoy a festive, family occasion, in a public park, free from disturbance, or concerns as to health and safety. … The crucial and significant facts … were … the actual decision … to burn the flag of that size, with the aid of an accelerant, at that particular time and place, that he did ignite, and the adverse affect his behaviour appeared to have on some of (the) public present at the time. I still find then, that the manner of the defendant could be fairly classified as disorderly. I consider the defendant has unfortunately made an error of judgment in choosing that time and place to make his particular protest.’ 

[20] The Magistrate considered this argument by reference to the relevant authorities, O’Connor v Police [1972] NZLR 379, in which Richmond J said ‘… The court has to apply an objective test to the conduct in question and determine as a matter of time, place and circumstances whether it was of a kind likely to cause serious annoyance or disturbance to some person or persons present’, Melser v Police [1967] NZLR 437 in which Napier J remarked ‘I have no doubt that these words ‘disorderly behaviour’ refer to any substantial breach of decorum which tends to disturb or interfere with the comfort of other people who may be in, or in the vicinity of, the street, or public place.’ and Watson v Trenerry (1998) 100 A Crim R 408 in which Angel J quoted the judgment of McCarthy J in Melser: ‘… The right to protest against political decisions, is now accepted as a fundamental human right in any modern society which deserves to be called democratic … the right of protest, in particular, if exercised without restraint, may interfere with other people’s rights of privacy and freedom from molestation. … Freedom of behaviour … is (not) absolute. The purposes of a democratic society are only made practicable by accepting some limitations on absolute individual freedoms. … This … is … elementary.’ 

[21] In particular the Magistrate noted the discussion in Watson concerning the relevance of the fact that the conduct in question which was alleged to be disorderly was, or was part of, a political protest. That clearly is a circumstance relevant to the decision whether the conduct complained of in a prosecution under s 7(1)(e) is disorderly as that term has been explained in the authorities. 

[22] Having referred to the relevant legal principle, and the relevance of the point just mentioned, the Magistrate concluded from his review of the evidence that the charge had been made out. 

[23] The applicant’s contention that his conduct could not have been disorderly because it was an expression of political opinion or participation in a criticism of Government debate cannot be accepted. His motive for his conduct and the characterisation of it as ‘political’ are both irrelevant. Acts which the law makes criminal do not cease to have that character by reason that they are the expression of political opinion. The point is too obvious to need explanation. Where it otherwise the murder of a Prime Minister whose policies one despised would be a constitutionally protected act of political debate. 

[24] The District Court judge took the same approach. Having reviewed the evidence and referred to some particular portions of it his Honour said: ‘I have canvassed some portions of the prosecution evidence concerning the presence of members of the public and children because it was against the backdrop of such evidence that the Magistrate … approached the question of whether the (applicant’s) actions in lighting the flag amounted to disorderly conduct. It was plainly open for the Magistrate to do so on the evidence. Far from being a finding which was unsupported … it seems … to have been quite compelling. I was provided with an extensive summary of the evidence … which … contains reference to a large volume of other evidence to similar effect. The concept of disorderly behaviour is in every case a matter of degree depending upon the relevant time, place and circumstances. The police have made no move to interfere with the (applicant) while he made anti-Government political statements. While the statements may have been unpalatable to some of the patrons of the event there is no suggestion that feelings had become so inflamed as to render likely a breach of the peace. Actually, there seems to have been some merriment at the failure of the (applicant) to light the flag at the first attempt. The objectionable feature of the conduct had very little to do with its political significance. It related to the lighting of a large piece of synthetic material to which petrol had been added in close proximity to larger numbers of people including young children. The circumstances were such as to arouse the apprehension of parents for the safety of their children. The Magistrate described the conduct of the (applicant) as “provocative, disruptive and disturbing, and … as a substantial breach of decorum”. However he went on to describe the crucial and significant facts as being the actual decision by the (applicant) to burn a flag of that size, with the aid of an accelerant at that particular time and place … and the adverse effect his behaviour appeared to have on some of the public present.’ 

[25] The applicant’s submissions as they relate to the conviction of a charge of behaving in a disorderly manner are without substance. They appear to misunderstand the law. It is apparent that the Magistrate paid careful attention to the evidence and applied to it the correct legal principles. In particular the Magistrate took account of the circumstance that the applicant was protesting against a policy of the Commonwealth Government. Having taken that circumstance into account, together with the other relevant circumstances, his Worship was convinced beyond reasonable doubt that the applicant’s behaviour was disorderly. There was no error in his Worship’s approach. The District Court judge reached the same conclusion having reviewed the evidence and having been satisfied that the correct legal principles had been identified and applied. 

[26] The applicant’s complaints that he was arrested unlawfully and was therefore entitled to resist and behaved reasonably in striking Constable Marinov and damaging the police car can be shortly disposed of. 

[27] The point taken here seems to be that: (a)The police officers considered the conduct disorderly only when the secondary fire commenced; (b)The applicant has been found not to be criminally responsible for the second fire; therefore (c)It follows, so the applicant submits, that he has been effectively acquitted of the act which was said to base the criminal liability and authorise the arrest; (d)Therefore, it is submitted by the applicant, that the arrest was unlawful and the applicant’s resistance, was lawful. 

[28] The submissions by the applicant fundamentally misunderstand the law. It is not the law that an arrest is only lawful if ultimately the person arrested is found to be guilty of the alleged offence which was the basis of the arrest. 

[29] Section 198 of the Police Powers and Responsibilities Act 2000 (Qld) provides: ‘198 Arrest without warrant (1)It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons - (a) to prevent the continuation or repetition of an offence or the commission of another offence; … (g) to preserve the safety or welfare of any person including the person arrested; …’ 

[30] That section: (a)Gives a power to arrest dependent upon a police officer forming the belief prescribed by the section; (b)The existence of the power to arrest is distinct and independent from any ultimate determination of guilt; (c)Provided the police officer holds the requisite belief and the power of arrest therefore arises, the arrest is lawful notwithstanding that there is ultimately an acquittal of the defendant of the offence for which he was arrested and the arrest is lawful even if the police officer’s belief was founded upon some mistake of fact or law. 

[31] The arresting officer Kinbacher had clearly formed the view: (a)That the applicant had committed the offence of disorderly conduct; (b) That he was going to repeat the offence; and that state of mind was reasonably held given the applicant’s conduct up to that point in time. 

[32] On that basis the arrest was lawful. It was not rendered unlawful by the Magistrate ultimately having a reasonable doubt as to the applicant’s criminal liability for the secondary fire. Indeed, even if he was acquitted of the charge of disorderly conduct the arrest was still lawful and he would be guilty of the other charges.  

[33] There is no reason to doubt the correctness of the applicant’s convictions or that the appeal to the District Court was properly dismissed. The application for leave to appeal raises no point of law for determination. I would refuse the application with costs to be assessed. 

Naming as claiming

My doctoral dissertation features a brief section on identity construction through law regarding naming, so I was pleased to encounter 'Naming Baby: The Constitutional Dimensions of Parental Naming Rights' (UC Davis Legal Studies Research Paper Series Research Paper No. 241, January 2011) by Carlton Larson.

In discussing European frameworks about what you can call the kid Larson notes that -

Many foreign jurisdictions are significantly more restrictive with respect to naming practices. Portugal, for example, requires parents to select a name from a governmentally approved list. It makes for fascinating reading, a relentless enforcement of 'Portuguese-ishness'. Not surprisingly, "Yuri", "Svetlana', "Johann", "Ethel", and "Andy" all fail to make the cut, but so do "Carmencita", "Catelina", and "Iglesias". In 2007, Venezuelan lawmakers proposed legislation that would limit parents to 100 approved names, perhaps because at least sixty Venezuelans bore the first name "Hitler". Spain specifically prohibits "extravagant" or "improper" names. French law permits officials to reject first names "contrary to the welfare of the child". One such name was "Fleur de Marie", rejected by French courts as too eccentric. Argentina prohibits "names signifying ideological or political tendencies, ridiculous or extravagant names, or those contrary to good morals". It has also rejected certain non-Spanish names, such as "Malcolm". Portugal prohibits names that "raise doubts about the sex of the registrant".

Carlson goes on to note historic and contemporary curiosa in US naming practice -

Another Massachusetts man named his son "Mene Mene Tekel Upharsin". Other names simply defy explanation, such as that of the Boston boy named "Preserved Fish". In 1814, a Connecticut minister named his daughter "Encyclopedia Britannia". Political names of all sorts have been especially popular. In the first half of the nineteenth century, the governor of South Carolina named his son "States Rights". Perhaps proving that some names really are destiny, "States Rights" graduated from Harvard Law School, but was killed in battle as a brigadier general in the Confederate Army. Equally redolent of a Civil-War history exam is the mid-nineteenth-century family who named their sons "Kansas Nebraska", "Lecompton Constitution", and "Emancipation Proclamation", while giving their daughters the apparently more feminine names of “Louisiana Purchase” and "Missouri Compromise". The outhouse was no doubt an important feature of daily life, but one wonders if it was truly necessary to commemorate it, as did one Tennessee family, by naming a girl 'Latrina". Other children were given such gargantuan tongue-twisters as "Trailing Arbutus Vines", "Loyal Lodge No. 296 Knights of Pythias Ponca City Oklahoma Territory", and "John Hodge Opera House Centennial Gargling Oil Samuel J. Tilden".

Resurrections

Last year I noted that Paul Terroni had been refused bail in NSW after faking his own death, seeking the associated insurance and obtaining a false passport (albeit an improvement on the NZ scammer who cashed in on his own 'death' but chose to renew his existing pasport!).

The SMH today reports that Terroni has been sentenced in a NSW District Court to a maximum 23 months in jail (13 months on a fraud charge and 15 months on a passport offence). Although his minimum term reportedly expired two weeks ago, Terroni remains in custody pending sentencing on driving charges that apparently triggered his scam.

He appears to have been charged with driving offences, evading punishment by moving to Ecuador and there ostensibly drowning in a river in 2007. What better day for a faux demise than 1 April. His uncle obtained the death certificate, with Terroni sending that to Australia and snaffling a false passport used for his return to Sydney in 2008. There was an attempt to claim over $283,000 in life insurance, with his mother reportedly alleged to have tried to obtain his superannuation using the bogus death certificate.

Haesler J yesterday sentenced Terroni for for trying to obtaining money by deception and possessing a foreign passport not issued to him, noting that "to fake one's own death in the face of relatively minor criminal charges makes no sense to me". Terroni's barrister argued that his made what "can only be described as a disastrous life choice".

Online Accessibility

The Canadian Government has announced that it will appeal the Federal Court of Canada decision in Jodhan v. Attorney General of Canada 2010 FC 1197, an online disability case.

At issue was whether the national government's internet services are accessible to people with visual impairments and whether inaccessibility infringes the right to equal benefit of government services under section 15 of the Canadian Charter of Rights & Freedoms.

The Court held that the federal government sites in Jodhan's 2007 claim were inaccessible and infringed the right under s. 15(1), an infringement that was not justified under Charter s 1. The Court ordered the government to bring its websites into compliance with the Charter within 15 months and to pay c$150,000 costs.

Jodhan is a blind computer consultant who was unable to create a job profile on the government's employment website or to electronically file her legally required census information without personal assistance. She argued that it is demeaning to be required to rely on assistance to access government information and use government sites. She also argued that being forced to rely on personal assistance to submit her census returns is a violation of her privacy, a similar arguement to claims in Australia regarding voting by blind people in the federal elections. Jodhan argued that the government could use readily available cost-effective technology that would meet its obligations under the Charter.

The government argued that the case was limited to three specific sites identified by Jodhan rather than all sites and suggested that even if its sites are inaccessible Jodhan could not establish discrimination because there were readily available alternative mechanisms for accessing and providing information, eg by phone,in person or mail. The government argued that s. 15 of the Charter does not guarantee visually disadvantaged Canadians a constitutional right to access federal sites and that its then online accessibility standards (the Common Look and Feel Standards 1.0) could not be found to breach s. 15 because they were ameliorative.

The Court disagreed, finding that the government had failed to fully implement its mandated accessibility standards (which constituted reasonable accommodation) and had not earmarked funds to achieve accessibility. There was a requirement under Charter s. 15(1) to take special measures to ensure that the disadvantaged enjoy equal access to government services. The Court was critical of the government’s failure to fully implement its own accessibility standards and the absence of a stated justification under s. 1 regarding that failure to accommodate (eg on the basis that accommodation would have constituted undue hardship).

The government is reported to be appealing on the basis that the judge exceeded his jurisdiction in finding a "system-wide failure" by the government in relation to its sites, indicating that only Jodhan was proved to be directly affected. The Court is also claimed to have "erred in law" by ordering the government to "remedy" the sites of 146 agencies, when only 106 agencies used the now-superseded guidelines that were held to provide inadequate accessibility.

The landmark decision in Australia remains Maguire v SOCOG, a ruling in 2000 by the then Human Rights & Equal Opportunity Commission (HREOC) under the Disability Discrimination Act 1992 (Cth).

Maguire claimed that SOCOG breached the legislation by refusing to format the Sydney Olympic Games site in a way that can be converted to braille or synthesized speech. SOCOG was fined $20,000 after ignoring the HREOC ruling.

Fierce bad rabbits

Given past comments in this blog regarding hyperbole from South Australian politicians and the beginnings of a moral panic about 'outlaw motorcycle gangs', marked by inept legal drafting and a denial of justice, I was pleased to read comments by the SA Police Commissioner suggesting that we look at realities rather than hype. That caution echoes comments by NSW DPP Cowdery and others.

The Adelaide Advertiser, famously denounced by the former SA Attorney General as a sewer, reports Commissioner Mal Hyde as commenting that 'bikies have cultivated an image of committing more crime than they actually do' -

there is a great deal of public concern that may not necessarily match the serious crime that they are committing

So much, as the Advertiser notes, for the Premier's 2007 claim that bikies were as bad as "terrorists" and that "the national counter-terrorism laws that have been appropriately modified and adopted could provide a nationally consistent approach to ban and control outlaw bikie gangs". (The former Attorney General was correspondingly emo about gamers.)

Hyde is reported as commenting that OMG members present two problems: the "serious" and "organised type" crime actually committed and, secondly, the "public face which most organised criminals don't have" which portrayed them as "above the law".

The challenge around the bikies is really two-fold. The first is that they commit serious crime and much of it is organised type crime, so you have to deal with that.

There are other organised crime groups as well, but the bikies have a public face which most organised criminals don't have and which is about their persona: how they use violence, how they dress and how they behave and how they like to be above the law.

The fact that there is serious concern about their behaviour is an issue in itself.

As the Advertiser notes, Hyde's

views appeared to contradict the repeated comments of the State Government, which had devoted far more attention to "terrorist" bikies than any other crime group and passed laws banning them from associating with each other.

Parts of the legislation have been deemed unconstitutional in the High Court.

Critics of the laws have accused the State Government of exaggerating the bikie crime problem to promote its law and order credentials. Mr Hyde also says in the book South Australia is "under-represented" on bikie crime compared with other states.

"In terms of bikies we actually don't have a major problem here in the sense that it exceeds the problem in other states and territories," he says.

"When you count the number of bikies, South Australia only has about 6 per cent of the national figure and we have 8 per cent of the population of Australia, so we are actually under-represented in bikies."

That is consistent with other authorities, with the Advertiser quoting the SA Commissioner for the Victims of Crime as critical of "rhetoric" used discussing in OMGs -

"There is a perception that people are worried about bikies and the crime they are committing but when you ask people what they are worried about, bikies don't feature," he said.

Surveys on fear of crime do not reveal broad public concern about organised crime. Some of the very public and violent incidents involving members of bikie gangs and others have fuelled fear of these people and drawn attention to their activities.

That fear, however, might be a consequence of the general worry fostered by signs of disorder and social incivilities.

In a subsequent ABC interview Premier Rann commented that -

There's absolutely no conflict between me and the police commissioner on this.

Those are the laws the police wanted, those are the laws we gave them, and the police commissioner is well aware and has briefed me about the extortions, the illegal importations of every range of gun - we've got bombs being manufactured.

Essentially, outlaw bikie gangs are about manufacturing and distributing, selling drugs to our kids.

Without deriding the seriousness of illicit drug consumption and distribution, one might question an image of OMG members parked on Harleys next to primary schools selling speed or other nastiness to minors.

Violence against the homeless

Reading the 70 page Rough Living: Surviving Violence and Homelessness [PDF] by Catherine Robinson, UTS, which -

reveals the ways in which intense chains of disadvantage incorporating homelessness are triggered by very early experiences of violence. Drawing on biographic interviews with 6 men and 6 women, the project bears witness not only to horrendous repeated experiences of physical and sexual violence but discusses what may be understood as related multi-dimensional vulnerability in areas such as physical and mental health, education, employment and social connectedness. A picture of the long-term cycles of violent victimisation and homelessness and their compounding traumatising effects are made clear and the importance of trauma-informed service delivery is outlined as a key way forward.

Robinson comments that -

Despite consistent reports of repeated experiences of violence occurring both before and whilst living homeless, it was observed that little current local documentation or wider policy acknowledgment of these exists. Disturbingly, reports about episodes of violence revealed that positive engagement with responding emergency and support services was rare and in many cases was never even sought, and that the opportunity for the follow-up of past traumatic events was even rarer. Most distressing, however, was the perception identified amongst victims that often brutal and repetitive victimisation was a 'normal' and accepted part of everyday life in the past and present, and an expected part of everyday life in the future.

She continues that -

violent victimisation still receives limited acknowledgment within policy development or academic research, despite the fact that existing studies, both in Australia and internationally, consistently document that people experiencing homelessness report a horrendous and disproportionate level of victimisation, including repeated experiences of childhood abuse, domestic and family violence, rape, physical and sexual assault, and robbery (see, for example, Buhrich, Hodder & Teesson 2000; Jasinski et al. 2005; Kipke et al. 1997; Kushel et al. 2003; Larney et al. 2009; North, Smith & Spitznagel 1994; Taylor & Sharpe 2008). It is clear that repeated experiences of violent victimisation are more likely for those whose homelessness is both prolonged and made complex by mental illness and substance abuse, and yet the wide-ranging and often enduring impacts of victimisation are rarely acknowledged and considered as part of 'housing plus' (Morrison 2009, p.1) responses to homelessness.

Given the small but nonetheless powerful body of available research evidence which concludes, 'a history of violent victimisation is associated with the initiation and prolongation of homelessness' (Kushel et al. 2003, p.2492), it is also deeply troubling that more commonly public policy and public opinion address homeless people as perpetrators of crime (Strategic Partners 1999, p.37). This is disturbing in a context in which one Australian study concluded simply that 'a lifetime experience of trauma is common among homeless people' (Buhrich, Hodder & Teesson 2000, p.966), with half of the female participants reporting rape and over half of male and female participants reporting physical assault (Buhrich, Hodder & Teesson 2000, p.965). Half of the homeless respondents in a more recent Australian study indicated they had been violently victimised at least once in the past year (Larney et al. 2009, p.348).

As Gaetz (2004, p. 447) concludes, however, 'the homeless in general are cast not as real or potential victims ... but rather, as criminal offenders' (see also Alder 1991, p.3; Strategic Partners 1999, pp.4–5) and as a result public policy falls short of fully confronting violent victimisation as a central theme in homelessness. As Morrison (2009, pp.2–3) points out in the Australian context, for example, it is a surprising oversight that neither homeless policy nor research yet adequately addresses sexual violence, which remains so pivotal in the lives of many homeless women in particular. It has also been argued that crime prevention frameworks implicitly underpin the current policy and practice shift towards early intervention strategies aimed at homeless young people in particular (Strategic Partners 1999, p.37). Here again, an explicit recognition of young homeless people’s likely experience of violent victimisation remains missing.

The silencing of homeless people’s experience of victimisation is ensured socially by beliefs that homeless people are somehow deserving of violence because of their risky lifestyles – most extremely demonstrated in the active perpetration of violent hate crimes against those homeless (NCH/NLCHP 2008; Wessler & Melnick 2005). It is also ensured institutionally by the exclusion of homeless people from national crime surveys which inform crime prevention policy and through the evolution of service sectors without resources and time to offer more than superficial care to homeless people. Further, the entrenched under-reporting of victimisation by homeless people suspicious of law enforcement and emergency health agencies only serves to further cyclically perpetuate these silences. It is also tragically ironic that in the public domain homeless people are understood as a threat, despite the fact that, internationally and in Australia, homeless people strikingly report random members of the community (Alder 1991, p. 6; Ballintyne 1999, p.15; Newburn & Rock 2005, p.27) and indeed law enforcement officers (Alder 1991, p.6; Zakrison, Hamel & Hwang 2004) as major perpetrators of violent crime against them. ...

[S]tudies confirm the findings of international research that violence is endemic to the experience of homelessness, particularly long-term iterative homelessness, is linked to poor mental health and substance abuse, and has cumulative and lasting impacts on victims’ continuing vulnerability to poor physical and mental health, to housing instability and to further violent victimisation. These findings are deeply worrying in the context in which it has been estimated that, at any one time, at least a quarter of homeless populations in countries such as Australia may be experiencing long-term iterative homelessness with associated high and complex needs (Reynolds 2007, pp.4–5).

Suicide and protests

Watching outbreaks of Wertherism (or despair) in the Middle East, in the form of protest self-immolations in emulation of Tunisian graduate Mohamed Bouazizi, whose self-immolation in Sidi Bouzid reportedly triggered riots that culminated in the hasty departure of then-President Zine al-Abdine Ben Alinice and other nicely upholstered folk at the top of the local kleptocracy.

Bouazizi, an unemployed graduate, supposedly set fire to himself when officials (or police) prevented him from selling vegetables on the streets of Sidi Bouzid without permission. That act was followed by the suicide of Hussein Nagi Felhi, who some reports claim was electrocuted after climbing a high-voltage tower, shouting "no for misery, no for unemployment" and touching a 30,000 megawatt cable. The subsequent protests featured the usual tear gas, shots, stone-throwing, burning of official buildings and looting of shops and other premises.

The BBC today reported 'Man dies after setting himself on fire in Saudi Arabia', with a 60 year old using "a petroleum product" in the south-western region of Jizan after bering "angered by how difficult it was to gain Saudi nationality". 43-year-old businessman Yacoub Ould Dahoud died in Mauritania after self-immolation in protest at that nation's government. A 25-year-old unemployed Egyptian died after setting himself on fire in Alexandria, with three people setting themselves on fire on the streets of Cairo.

'Suicide by Self-Immolation: Comprehensive Overview, Experiences and Suggestions by Alireza Ahmadi in (2007) 28(1) Journal of Burn Care & Research 30-41 comments that

Suicide by burning is a rare condition in the developed countries (0.06-1% of all suicides) but is more frequent in the developing countries (accounting for as many as 40.3% of all suicides). In different parts of Iran, between 1.39% and 9.50% of patients that attempted suicide and 25.0% and 40.3% of patients who committed suicide were via deliberate self-burning. Self-burning (immolation) comprises between 0.37% and 40% of total burn center admissions around the world and, in Iran, it comprises between 4.1% and 36.6% of admissions in Iranian burn centers. Approximately 80% of hospitalized self-immolation patients die. ... [In 2004 and 2005] the author examined all the suicidal patients who were admitted to the emergency department of hospitals in Kermanshah University of Medical Science. Examination included a retrospective cross-section study, via demographic questionnaires and suicidal checklists. During the period of study, 1820 patients who attempted suicide and 90 patients who successfully committed suicide were admitted. A total of 41% (37 cases) of patients who committed suicide were via self-immolation. Of these, 81% of self-immolation patients were female (P < .0005), and the female:male ratio was 4.3:1. A total of 86.5% of the patients were in the 11 to 30 years of age group. The mean age was 24.9 years (range, 14-50 years). Forty-nine percent of cases were single, 84% were illiterate or had a low level of education, 78.5% were housewives, and 14% were unemployed. Also, most of the patients (53%) were living in rural area, 97% did not have a previous history of suicide attempt, and 67.5% regretted their self-immolation act.

There is a more edifying perspective in 'Buddhist Self-Immolation in Medieval China' by Jan Yün-hua in (1965) 4(2) History of Religions 243-268, which includes the following -

Another motivation for abandoning life came from the stories about Bodhisattvas who had sacrificed their bodies for the sake of other beings. An example of such inspiration is the monk T'anch'eng, who in order to prevent possible panic among his fellow villagers, offered his body to a tiger. Acharya Shao of Tzu-chou, in present Ssuch'uan province, tried to do the same but was unsuccessful. Fa-chin (d. 435) of Liang-chou, in present Kansu province, cut flesh off his body to feed other people, thus saving them from famine.

The story of monk Seng-fu is more moving and dramatic. We read that, following his renunciation of worldly life, Seng-fu

silently thought of cutting off his relation with this world. At that time, there was a robbery in a village. A male child was captured by the robbers, who planned to remove its heart and liver in order to offer them to a god. Seng-fu was strolling on the road near the village at the time, and when he saw the robbery, he inquired about the abduction. Thereupon, he took off his robe and tried to redeem the child by his own body. The bandits ignored his proposal. Seng-fu argued: "Are the chief viscera of an adult unusable for sacrifice?"

"When you cannot give up your own body, what is the use of using big words ?" replied the bandits.

Seng-fu then thought: "When the time comes, this illusory body of mine must die. If I use my death to rescue the child, I shall be alive though my body may perish." He therefore snatched a knife from the bandits and cut open his chest down to his navel.

On seeing this, the bandits were shocked and fled and thus the child was saved.

Among others who died for a similar cause was Monk P'u-an (d. 609), who cut off a piece of flesh from his thigh and thus saved the lives of three pigs from slaughter.

In contrast, James Benn in Burning for the Buddha: Self-Immolation in Chinese Buddhism (University of Hawaii Press, 2007) refers to instances of 'moral blackmail'. Buddhist monk Dazhi (567-609) of Lushan for example "wailed loudly" after emperor Sui Yangdi placed restrictions on Buddhist orders, remonstrated with the emperor, used a hot iron to burn his own arm to a crisp, peeled off his flesh to reveal the bones underneath and then charred the bones.

Michael Biggs in 'The Transnational Diffusion of Protest by Self-Immolation' [PDF] comments that

Protest by self-immolation — where an individual kills him or herself, without harming others, to advance a collective cause — entered the global repertoire of contention in the 1960s. This form of protest was invented, I suggest, in response to two long-term trends: the decline in public state violence and the growth of mass media. Although there had been previous examples, the self-immolation of a Buddhist monk in 1963 created a model that was borrowed in many different countries, across various cultures. I argue that almost all subsequent acts can be traced back to this model. Knowledge of self-immolation was diffused through the mass media, and not through social networks. Acts of self-immolation were usually intended to appeal to bystander publics or to exhort others to greater efforts on behalf of the cause. I conclude that research should transcend the customary units of analysis, to trace the diffusion of forms of protest (and other ideational elements) across disparate cultures and various movements.

Testing the dragon of authority

Yesterday's post considered a NSW Administrative Decisions Tribunal (ADT) judgment regarding questions of identity. There has been more media attention to two other decisions regarding firearms - and the construction of identity through denial of access to weapons - than the ADT stance on CV enhancement.

In Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 the ADT noted that Mr Potts -

has a propensity to "test the dragon" of authority in order to provoke and test responses, yet he is by all other measures a law-abiding member of the community and of apparent good character.

His firearms licences under the Firearms Act 1996 (NSW) had been suspended following a Domestic Violence Order in 2009 (since discharged). He sought reinstatement of the licences, indicating that -

If my licence is revoked, particularly working in the ACT, it could seriously affect my ability to obtain police and security clearances to work in many Defence, ACT and Commonwealth government department buildings due to the stigma that may be associated with a revocation of a licence to keep and use firearms. The ability to provide for my Children could be seriously affected.

Potts is a lift technician at Parliament House in Canberra.

In considering his request for reinstatement of the licences he was required to undergo a psychiatric assessment, during which he described himself as "a very angry man" and it became apparent that he held what the ADT characterises as "unorthodox views with respect to political and religious role of the Judaism, the nature of the Holocaust, and those responsible for the events of September 11". Those views appear to include Holocaust denial and anxieties about "racial mixing". The Commissioner of Police, in refusing to reinstate the licence, indicated that the views as such were not the basis for a public interest revocation of his firearms; instead 'the issue is what those view say about his mental state' -

The Commissioner argued that the revocation was justified in the public interest on the basis of concerns arising from Mr Potts's behaviour at his former partner's home on 21 July 2009, his attitude towards those in authority, alleged threats made with respect to his children, and as a result of [the psychiatrist's] report.

The Daily Telegraph report of 20 January reads that -

he believed Jews were plotting to dilute other races by encouraging mixed-race children and he had unwittingly played into their hands by having children with his Korean-born wife - from whom he has separated.

"If I had've known this information I would not have participated in mixed-race marriage," he said.

He also said Jewish spies, posing as "Israeli art peddlers" were visiting his house because he was "a person of interest" to them.

Ah, the ingenious Mossad boys disguised as art peddlers!

The ADT took a conservative position, stating that -

There is no doubt that Mr Potts holds political and religious view that can be fairly categorised as highly unusual, if not extreme, and would be regarded by many in the community as offensive and racist. He is, however, a man who has no convictions for offences and whose past demonstrates that he is a law-abiding, hard working member of the community. There is no evidence that he has ever used violence, or advocated its use in pursuit of his religious or political objectives. Similarly, there is no suggestion that, as the holder of firearms licence, he has ever used his weapons inappropriately, failed to store them as required, or otherwise breached the responsibilities which the privilege of a firearms licence carries with it.

It is apparent that Mr Potts is an intelligent man with his own idiosyncratic views, and little tolerance or respect for those in authority, especially if they give him reason to doubt their ability and competence. He said that he respects laws (as his history would appear to justify) but has little respect for its functionaries. His evidence was that his comments to Constables Young and Lawler about conspiracies and the Jewish hierarchy were said, deliberately, to gauge their reactions. He deliberately escalated the conflict with his wife to the point where Police were called, and then pushed the boundaries with them as far as he could go without being arrested. He described his actions as “recalcitrant”.

His correspondence with the Firearms Registry concerning the revocation decision reveals his contempt for the view they expressed to Dr Tym that Mr Potts had expressed white supremacist and anti-Islamic views. There was no evidence to justify that conclusion. Mr Potts was scathing in his resultant commentary. He was equally scathing in his criticism of Dr Tym’s conclusions.

In his presentation to the Tribunal Mr Potts was equally willing to test the boundaries. From the commencement of the hearing he told me that he didn’t really care about his firearms licence, but was pressing on with his appeal in order to prove a point. His principal point was that his political views do not lead to the conclusion that he has a mental illness.

The ADT went on to

whether Mr Potts’s firearms licence should be revoked in the public interest. This question has troubled me. Mr Potts holds views which are offensive to many. He has a propensity to "test the dragon" of authority in order to provoke and test responses, yet he is by all other measures a law-abiding member of the community and of apparent good character.

The fact that he holds political and religious views and opinions that are offensive is not, in my opinion, sufficient to find that the public interest requires that he no longer hold a firearms licence. To do so would be to embark on a slippery slope towards rights and privileges being granted to those who hold approved opinions, and to give significant power to those who determine what those approved powers are. This is the road to totalitarianism. The position would be different if there was any evidence that Mr Potts has advocated or attempted to use force in order to advance his views. There is no such evidence.

Mr Potts' calculated provocation of those in authority is the matter which has concerned me. Ms Tillott submitted that, in the light of his propensity to test the dragon, I could not be satisfied that Mr Potts would co-operate as required with Firearms Registry with respect to his firearms licence and exercise the responsibilities required of a firearms licensee. Ms Tillott submitted that I should conclude that Mr Potts has little insight into the consequences of his provocative behaviour, and that he displays poor judgement. I do not accept this. In my view the evidence show that Mr Potts makes some very calculated judgments and goes as far as he can without overstepping the legal boundaries, while being aware of the likely consequences.

The issue for the Tribunal is whether it is contrary to the public interest for Mr Potts to hold his firearms licences as a consequence. I think that, whether he holds a firearms licence or not, Mr Potts will continue to test the dragon. If he does not hold a firearms licence, the Firearms Registry may not be the subject of that testing. That, however, is not the test.

It concluded that -

There is, my view, no evidence that Mr Potts poses a risk to the public if he is allowed to continue to have a firearms licence.

As a result I conclude that the public interest does not require that his firearms licences be revoked.

I'm hoping not to encounter Mr Potts when I visit Parliament House next month.

In Sydney Pistol Club v Commissioner of Police, NSW Police Force [2010] NSWADT 28 the ADT stayed the NSW Police Commissioner's suspension of licences held by the pistol club. That suspension reflected a murder -

in August 2010 an unlicensed shooter ... stole a pistol which was registered to the Applicant and which had been on loan to the unlicensed shooter. The unlicensed shooter who stole the pistol was undergoing Club training. That pistol, and ammunition obtained from the Applicant, was subsequently used in a murder.

From other information it would appear that the shooter killed her father.

The rationale for the stay appears to be that -

f the stay application is refused, it is to be expected that the process of renewal of memberships will be affected. Members who are unable to participate in club activities could be expected to seek alternatives and this would most probably result in their joining other clubs. It is also probable that a proportion of those members who join another club would not rejoin the Applicant if the application was ultimately determined in the Applicant’s favour.

Apart from being a major inconvenience to the members, is also detrimental to the ongoing training of new members who need continuity in their induction program. It is also detrimental to the external range users such as the Police and Security organisations that utilise the range for training purposes as it is the only facility in that part of Sydney that meets their requirements.

If the Applicant ceased its operations as a result of the condition, there would be no point in the Tribunal subsequently making an order that the imposition of the condition was not the "correct or preferable" decision.

If the Tribunal grants the stay, the Applicant will be able to process membership renewals and continue to conduct club activities. When the Tribunal comes to assess the merits of the decision, the immediate threat to its continued operation will not be a factor for consideration.

... the Applicant’s senior vice president, gave evidence in regard to the potential impact on the Applicant if the condition remains in place. His evidence is that the ultimate impact would be that the Club would have to close. The Club has already had to cancel a scheduled competition. In his opinion, it is improbable that existing members will renew their membership if the Applicant cannot conduct club activities. The would most likely join another club and most would be reluctant to pay the membership fees associated membership of more than one club.

The Commissioner argued that there are -

safety issues associated with the practices of the Applicant and that the level of knowledge of senior members of the club is a relevant factor to be considered by the Tribunal ... the events of 22 August 2010 clearly demonstrate the cause for that concern. She says that Mr George’s answers under cross-examination were illustrative of the deficiency in the level of knowledge of senior members of the Applicant.

... the underlying principle of the Act is public safety. The Commissioner accepts that 150 people will be inconvenienced as a result of the imposition of the condition, but the Commissioner says that that is a very small price to pay when ensuring public safety. Ms Tillott submits that it is in the public interest for shooting to be suspended at that particular range, until all of the safety issues are able to be addressed. The Commissioner contends that the accounts that have been provided from various witnesses and interviewees, along with the answers given by Mr George as the senior vice president, indicate a disturbing lack of knowledge of the relevant legislation and the requirements of the club itself.

The ADT concluded that -

In my view the Applicant will suffer irreparable loss if a stay is not granted because it is likely that it would have to cease operation. It is likely that it will suffer a loss of which could not be overcome by any order of the Tribunal. For those reasons I am satisfied that a stay is appropriate to secure the effectiveness of the determination of the application.

... I also note the assertion that the unlicensed shooter was loaned a firearm by a licensed member of the Applicant. There appears to be some uncertainty about what actually took place in that regard on 22 August 2010, however it is my view that a record should be maintained where there is lending of firearms by a licensed member of the Applicant.

We might instead ask restrictions on access to pistols are too permissive; in 2011 there are a plethora of ways for people to entertain themselves without shooting holes in cardboard targets or each other.

Other recent ADT licensing cases include Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246, Wells v Commissioner of Police, NSW Police Force [2010] NSWADT 246 and Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210.

The SMH, in discussing the pistol club dispute, notes that -

More than 191,000 firearms licences and permits are issued at present and nearly 750,000 firearms are registered in NSW

and that -

The tribunal also ordered the police-run Firearms Registry to reconsider its refusal of an application by a teenager who, police allege, was an associate of the Rebels motorcycle gang and had assaulted a man in 2006. Police had found 12 unregistered firearms hidden in a cavity in his bedroom when he was 15. His DNA was found on three of them.

The tribunal found it was possible he did not know the guns were hidden in the room, ruled he was a fit and proper person and rejected the police decision to revoke his licence