Corporate Pathologies

'Corporate Law and Corporate Psychopaths' by Benedict Sheehy, Clive Boddy and Brendon Murphy in (2020) Psychiatry, Psychology and Law comments 

For more than three decades there has been a growing interest, and concern, in the role that psychopathy plays in corporate affairs. The literature in this field is essentially interdisciplinary, drawing heavily on advances in neuroscience, behavioural and organisational psychology and criminology. In this paper that authors open a line of enquiry on the role that law can play in the regulation, and remedies, available to deal with dysfunctional and psychopathic management. In this paper we argue that the impact of corporate psychopaths – particularly the sub-clinical types – is sometimes potentially devastating for the organisation, its mission, its employees and, where they exist, shareholders. In this article we outline the nature of corporate psychopathy, its impact on corporate entities, and outline a range of potential legal remedies.

Elections

Problems with bureaucratic incapacity or just differing views of mission? The Australian Electoral Office has been dismissive of a negative report by the ANAO regarding the AEC's administration of the political donation system. 

In Administration of Financial Disclosure Requirements under the Commonwealth Electoral Act the ANAO concludes that the AEC had failed to take any concrete steps to improve following a 2012 review, which found it needed to be more proactive in its approach to compliance. 

Its assessment is that -

• the AEC is failing to obtain key records from some donors. In four years, the AEC has not obtained 75 annual returns – a key record detailing a donors’ contribution in any given financial year. 
• Many records are being submitted late, in some cases by more than a month. Around a quarter of annual returns and 17% of election returns were submitted late. 44 donors were late by an average of more than 30 days. 
• The AEC is doing little to verify that the information it does receive is accurate and complete. It appears to looking for empty fields in forms and obvious errors but not validate by comparing what a donor has reported to other data from internal or external sources. 
• The AEC is failing to meet its own target for compliance reviews, which are used to audit a donor’s claims, notably failing to conduct 58 of the 168 reviews it had planned in the five years examined in the audit. 
• No compliance reviews have been conducted on entities who claimed to have made no donations in any particular period. 
• Donation records from third parties  such as the Minderoo Foundation,  the Australian Christian Lobby and unions are not analysed. 
• The AEC failed to analyse donation records submitted during elections by candidates, Senate groups or election donors, instead relying on records handed in by political parties. 

Most interestingly, the report argues the AEC is not properly using its enforcement powers when it does identify noncompliance. 

ANAO again offers recommendations to improve the AEC’s handling of the political donations system, strengthening analysis of the accuracy of the data, improved  collection of donation records, and adopting a more targeted approach to its compliance activities. 

 The AEC response has been unenthusiastic. The recommendation to use a more graduated system of punishments for noncompliance by donors, including the use of criminal prosecutions was rejected outright, because the AEC said it already takes such an approach. Other recommendations were accepted with qualifications.

The AEC report states in part

Background 

1. The financial disclosure scheme was introduced in 1983 to increase overall transparency and inform the public about the financial dealings of political parties, candidates, senate groups and others involved in the electoral process. Regulation of the receipt and public disclosure of campaign funding and expenditure was seen as complementary and a necessary corollary to the introduction of public funding of political parties and candidates. 

2. The financial disclosure scheme requires specified participants (entities) in the electoral process that receive funding, provide funding, or incur political, now electoral expenditure to lodge financial disclosure returns with the Australian Electoral Commission (AEC). Such information assists voters to make judgements knowing who funds political representatives and to what extent. 

Rationale for undertaking the audit 

3. The administration of the financial disclosure requirements by the AEC was selected for audit because the purpose of the financial disclosure scheme is to preserve the integrity of the electoral system, maintain public confidence in the electoral process and reduce the potential for undue influence and corruption. The financial disclosure scheme is also a central pillar of the Australian arrangements to provide electors with sufficient information on which to base selection of their political representatives. 

Audit objective and criteria 

4. The objective of the audit was to examine the effectiveness of the AEC’s management of financial disclosures required under Part XX of the Commonwealth Electoral Act 1918, including the extent to which the AEC is achieving accurate and complete financial disclosures. 

5. To form a conclusion against the audit objective the following high level audit criteria were used: Has the AEC established effective arrangements to administer the financial disclosure scheme? Has the AEC developed and implemented effective compliance monitoring arrangements? 

Conclusion 

6. The AEC‘s management of the financial disclosures required under Part XX of the Commonwealth Electoral Act 1918 is partially effective. 

7. The arrangements that the AEC has in place to administer the financial disclosure scheme are limited in their effectiveness as: across the four year period examined, while the AEC has obtained 5882 annual and election returns, as at 30 June 2020, 75 returns have not been obtained. There have also been delays with the submission of returns to the AEC with 22% of annual returns and 17% of election returns lodged after the legislated due date; the AEC does not make effective use of available data sources to identify entities that may have a disclosure obligation that have not submitted a return; there is insufficient evidence that the returns that have been provided are accurate and complete5; there is limited analysis undertaken of returns that are obtained; and risks to the financial disclosure scheme are not managed in accordance with the risk management framework. 

8. Compliance monitoring and enforcement activities are partially effective with the result that the AEC is not well placed to provide assurance that disclosure returns are accurate and complete. 

Supporting findings 

9. Across the four year period examined by the ANAO the AEC has obtained 5882 annual and election returns, and as at 30 June 2020, has not obtained 75 returns. Compliance with legislated timeframes has also been an issue, with 22% of annual returns and 17% of election returns lodged after the legislated due date. Forty four entities have submitted annual returns on average over 30 days late on two or more occasions, with 12 (27%) having lodged, on two or more occasions, on average over 120 days late. Additionally, the AEC does not make effective use of available data sources to identify entities that may have a disclosure obligation and have not submitted a return. 

10. There is insufficient evidence that annual and election returns are accurate and complete. While the AEC checks that all fields have been completed and looks for some obvious errors it does not compare the figures disclosed with other data available from internal or external sources, instead relying on its annual compliance review program to provide sufficient evidence that the annual and election returns are accurate and complete. 

11. The effectiveness of the analysis undertaken by the AEC is limited. Annual returns submitted by third parties and donors are not analysed. Election returns submitted by candidates, senate groups or election donors are not analysed. The analysis that is undertaken of annual returns submitted by political parties and associated entities is limited as there is no detailed analysis of the financial information, and effective data analytics and data matching techniques are not employed by the AEC. 

12. Risks to the financial disclosure scheme have not been managed in accordance with the AEC’s risk management framework. While the risk appetite and tolerance statement of this framework states that the AEC has a low/moderate risk tolerance for risks associated with the disclosure function there is no evidence that risks relating to all entities that have a disclosure obligation have been assessed and are being managed appropriately. Additionally, there is no treatment plan in place for the risk that has been identified by the AEC, being the risk of non-compliance by political parties. 

13. While the AEC has identified some lessons that it could learn from other electoral bodies that regulate financial disclosure schemes, there is little evidence of any resulting changes having been made to how the Commonwealth scheme is administered. The AEC has also not taken adequate steps to implement agreed recommendations from a review it commissioned in 2012 of the disclosure compliance function (which concluded that the AEC needed to become more proactive in its approach). 

14. The AEC does not apply an appropriate risk based approach to planning and conducting compliance activities. While most reviews are planned on the basis of a risk assessment, there are a number of limitations in the risk assessment methodology employed. Over the period assessed the AEC did not undertake a compliance review of any election donor returns or of any annual returns that included no financial disclosures (that is, a nil return). 

The number of reviews, and the resources allocated to them, have declined considerably across the five year period analysed. These reductions do not reflect an assessment that the risk of non-disclosure or non-compliance has reduced and this situation is also at odds with the significant growth that has occurred in the total value of receipts and other figures included in the financial disclosure returns provided to the AEC. 

15. Planned compliance activities are not implemented in a timely and effective manner. Of the 168 reviews that were planned to have been conducted over the five year period examined by the ANAO, 58 (35%) have not been completed. While completion rates have improved in the last two years this is due to the AEC significantly reducing the number of planned reviews, narrowing the scope of planned reviews, and reducing the value of the transactions being tested. There has also been a marked decline in the number of full reviews that are being conducted on large entities with disclosure obligations. 

16. The AEC does not appropriately act upon identified non-compliance. It is not making effective use of its enforcement powers and as such has not implemented a graduated approach to managing and acting on identified non-compliance.

The ANAO's  recommendations in summary are - 

Recommendation no.1 

Paragraph 2.19 The Australian Electoral Commission improve the extent to which it is obtaining annual and election returns by taking: greater steps to identify entities with a reporting obligation, and drawing that obligation to the attention of those entities; and more effective action to obtain returns that have not been submitted by an entity with an identified disclosure obligation. 

AEC Response: Agreed with qualification 

Recommendation no.2 

Paragraph 2.43 The Australian Electoral Commission use data analytics and data matching techniques to provide greater assurance over whether data included in returns can be relied upon, and as an indicator of returns that may require investigation. 

AEC Response: Agreed with qualification 

Recommendation no.3 

Paragraph 2.52 The Australian Electoral Commission identify and develop treatment plans for risks relating to the financial disclosure scheme and manage the scheme in line with its revised risk management framework. 

AEC Response: Agreed 

Recommendation no.4 

Paragraph 3.13 The Australian Electoral Commission apply the lessons learned that have been identified through: accessing specialist expertise to test the effectiveness of the processes and practices that are in place to identify undisclosed financial transactions; and establishing arrangements with other government agencies to share intelligence gathering, data interrogation and risk based sampling techniques. 

AEC Response: Agreed with qualification 

Recommendation no.5 

Paragraph 3.39 The Australian Electoral Commission adopt a risk based approach to its compliance review program that: assesses the aggregate level of risk to inform decisions about the size and coverage of the program; includes all disclosures required under the updated legislative framework; and improves the effectiveness of the risk matrix used to select the majority of reviews, and better address risks of non-disclosure and incomplete disclosure. 

AEC Response: Agreed with qualification 

Recommendation no.6 

Paragraph 3.73 The Australian Electoral Commission establish performance measures for its compliance program that are relevant, reliable and complete. 

AEC Response: Agreed 

Recommendation no.7 

Paragraph 3.90 The Australian Electoral Commission implement a graduated approach to addressing non-compliance, including by making better use of its investigatory powers and seeking to have prosecutions undertaken by the Commonwealth Director of Public Prosecutions or civil penalties applied by the courts where serious or repeat non-compliance has been identified. 

AEC Response: Not agreed

The AEC's response in summary is  

An effective and transparent financial disclosure scheme is a key pillar of Australia’s democratic framework, and the outcomes of this audit demonstrate there are aspects of the AEC’s administration of the disclosure scheme that would benefit from further enhancements. The AEC acknowledges the audit team’s work and notes the observations, which we will address in line with our responses to the recommendations. However, the ANAO’s categorisation of the AEC’s management of the disclosure scheme as ‘partially effective’ is rejected. The proposed report contains some errors of fact and superficial analysis that lead to some flawed observations. It demonstrates a misunderstanding of the AEC’s business and the legislation under which it operates. The ANAO’s decision to conduct this audit prematurely –before recent legislative changes have had a chance to take effect — is akin to a building inspector assessing a two-storey house after only the first level had been completed. The result is a report that gives the Australian public an unduly negative and misleading impression of the effectiveness of the scheme. 

The ANAO’s finding that the AEC’s management of the disclosure scheme is ‘partially effective’ runs counter to the extent of disclosure achieved by the AEC (obtaining 98.9% of annual returns and 99.6% of election returns during the four year period examined), the transparency of the current system, and the successful operation of the scheme within existing legislative boundaries. 

The AEC view is that the ANAO has misunderstood the intent of the legislation. Over the period the AEC has been administering the requirements of the Electoral Act, the AEC has not detected systemic issues, wilful or large scale non-compliance with the legislation. And nor have others that scrutinise this scheme through our transparent sharing of the data. Our experience is that incomplete or incorrect disclosures are almost entirely caused by administrative mistakes or misunderstanding of disclosure obligations, which participants rectify. As a result, disclosure is achieved in line with the legislation. 

The AEC’s risk based approach to compliance reviews is the outcome of balancing the competing tensions of natural justice, apprehended bias and prudent use of Commonwealth funds with the preservation of public confidence in the transparency of the financial dealings of political parties and others involved in the electoral process. 

Moreover, the AEC disagrees with the ANAO’s view that it does not make effective use of its enforcement powers. The ANAO seems to have misinterpreted parliament’s intent on this issue. The AEC’s view, supported by data, is that the AEC has successfully achieved disclosure through consultation and education. The proposition the AEC should be more heavy-handed in its approach to enforcement is rejected, as prosecutorial action for amendments and other administrative mistakes would be disproportionate. 

The AEC believes the ANAO’s misunderstanding of the intent of the legislation exaggerates the nature of the recommendations and the perceived risk to electoral integrity.

In contrast the ANAO comments 

The core elements of the financial disclosure scheme were introduced in 1983 and required disclosure reporting to the AEC and also provided the AEC with powers to undertake reviews and inquiries to maintain compliance with the disclosure provisions as well as a range of penalties aimed at discouraging non-compliance. Since its introduction, the financial disclosure provisions of the Electoral Act have been subject to four substantial amendments, most recently in 2018. The impact of those recent amendments on the AEC’s practices was considered as part of the audit. Reflecting that the key elements of the AEC’s responsibilities for administering the scheme are longstanding the audit examined administration of the disclosure scheme across four financial years spanning two federal elections and eleven by-elections. 

To achieve the purpose of the disclosure scheme, it is important that reports be obtained from all those with a reporting obligation and that the reports obtained be timely, accurate and complete. While almost all returns sought by the AEC were obtained: 

• reporting has not been sufficiently timely, with 22% of annual returns and 17% of election returns lodged after the due date with some entities submitting returns late on multiple occasions; and 78% of returns reviewed by the AEC required amendment 

• yet, rather than increasing its scrutiny of the reports that have been obtained, the AEC:

• significantly reduced the number of planned reviews, narrowed the scope of planned reviews, and reduced the value of the transactions being tested; 

• did not undertake or did not complete 35% of planned compliance reviews; and 

• has not undertaken a compliance review of any election donor returns or of any annual returns that included no financial disclosures (that is, a nil return).

Dignity

In Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB) the Court states 

Cheryl Pile brings this appeal to establish the liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing. Of course, such a right, although perhaps of dubious practical utility, will generally extend to all adults of sound mind who are intoxicated at home. Ms Pile, however, was not at home. She was at a police station in Liverpool having been arrested for the offence of being drunk and disorderly. She had emptied the contents of her stomach all over herself and was too insensible with drink to have much idea of either where she was or what she was doing there. Rather than leave the vulnerable claimant to marinade overnight in her own bodily fluids, four female police officers removed her outer clothing and provided her with a clean dry outfit to wear. The claimant was so drunk that she later had no recollection of these events. 

It is against this colourful background that she brought a claim against the police in trespass to the person and assault alleging that they should have left her squalidly and unhygienically soaking in vomit. Fortunately, because this appeal will be dismissed, the challenge of assessing damages for this lost opportunity will remain unmet. 

She also alleges that the circumstances in which these events took place amounted to an unlawful invasion of her right to privacy under Article 8 of the European Convention on Human Rights. 

Her claims came before Recorder Hudson in Chester last November. The hearing lasted three days at the conclusion of which the Recorder found for the defendant Chief Constable on all issues. 

Ms Pile now appeals against the Recorder's decision to this Court with the permission of the single judge. For ease and continuity of reference, I will refer to her henceforth in this judgment as the claimant.

Turner J notes

On 22 April 2017, the claimant got into a taxi in an advanced state of intoxication. Her condition was such that she has no, or virtually no, recollection of what happened afterwards. 

The relevant events can, however, be pieced together from evidence from other sources. The unfortunate taxi driver rang 999 after the claimant had started abusing him and "kicking off". She had been physically sick all over herself and the back of the taxi. The police officers who arrived in response to the call described the claimant as being covered in vomit. Indeed, on the following morning, the claimant herself asked the police to dispose of her trousers because of the foetid state they were in. One officer said that the vomit was in her hair and had gone all down her front. There can be little doubt from the evidence that the claimant's clothes were filthy and unhygienic when she arrived at the police station. 

The claimant's behaviour at the police station continued to be challenging. I have seen the CCTV footage of the claimant's arrival. As the Recorder accurately observed, the officers accompanying her were clearly sympathetic and trying to help her. Her befuddled attempts to give her details, including her own name, reveal that she was incoherent with drink. 

On her way to the cells, as the Recorder found, she started to flail her arms with the clear intention of striking at the officers accompanying her. The cell to which she was taken was monitored by a CCTV camera. Some legitimate criticism could, and indeed was, levelled at the decision of one Inspector Fairhurst not to require initially that she should be detained in an unmonitored cell but any such criticism was overtaken by events with the claimant's aggressive display in the corridor on the way to the cells. By that stage, it was obviously in the claimant's own best interests, and those of the officers responsible for her detention, that she should be monitored from the outset. 

Once in the cell, the officers tried to replace the claimant's wet and soiled clothes with clean ones. They were wearing protective gloves and managed to put her dirty clothes in a plastic bag. The claimant, however, continued to struggle and they left the cell. After that, Inspector Fairhurst looked into the cell through the hatch to check on the claimant. His intention was to ensure her continued safety. He had not known that she was still in her underwear. The Recorder found that all those involved in the detention of Ms Pile on the night in question were concerned with her welfare and the protection of her dignity. The officers had used no more force than was strictly necessary to remove the claimant's clothes and she was too drunk to understand what was going on. Furthermore, Inspector Fairhurst had no darker voyeuristic purpose when he was checking up on her. 

The CCTV monitoring in the cell fed back to the custody suite. In the event, it was fortunate for the claimant that she was kept under observation because, soon after she had been left alone, she lost her balance, fell over and banged her head on the cell floor. She was taken to hospital and treated for her injuries. I note, in passing, that she brought a claim in negligence against the defendant in respect of these injuries but that claim was rejected by the Recorder at first instance and this finding remained wisely unchallenged on this appeal. 

After her hospital visit, the claimant was returned to the police station and released. She agreed to pay a £60 fixed penalty for being drunk and disorderly and thereby avoided prosecution.

Anabiosis

Anabiosis and the Liminal Geographies of De/extinction' by Adam Searle in (2020) 12(1) Environmental Humanities 321–345 comments

The spectacle of de-extinction is often forward facing at the interface of science fiction and speculative fact, haunted by extinction’s pasts. Missing from this discourse, however, is a robust theorization of de-extinction in the present. This article presents recent developments in the emergent fields of resurrection biology and liminality to conceptualize the anabiotic (not living nor dead) state of de/extinction. Through two stories, this article explores the epistemological perturbation caused by the suspended animation of genetic material. Contrasting the genomic stories of the bucardo, a now extinct subspecies of Iberian ibex whose genome was preserved before the turn of the millennium, and the woolly mammoth, whose genome is still a work in progress, the author poses questions concerning the existential authenticity of this genomic anabiosis. They serve as archetypal illustrations of salvaged and synthesized anabiotic creatures. De/extinction is presented as a liminal state of being, both living and dead, both fact and fiction, a realm that we have growing access to through the proliferation of synthetic biology and cryopreservation. The article concludes through a presentation of anabiotic geographies, postulating on the changing biocultural significances we attach to organisms both extinct and extant, and considering their implications for the contemporary extinction crisis. 

Searle argues

 Extinction is not a moment or singular event. Extinctions, as ecologically and culturally significant as they may be, are difficult to locate, define, understand, or even imagine. Often the term itself assumes some pre-given contextual meaning that masks its polymorphous ambiguity. Amidst narratives of Anthropocenes, the sixth mass extinction, and the emergence of novel technologies in synthetic biology, both conservation and geographical research face a series of epistemic and ontological questions. The multifaceted nature of extinction invites us to make sense of it empirically, in grounded and relatable “stories,” facilitating and affording the affective reimagining of alternatives and capacities for responses. Amidst an emergent ontology between existential extremes of extinct and extant, scientific speculation and practice are reworking the significances of extinction. This article aims to de-speculate biotechnical assemblages unsettling preceding epistemologies of extinction: contingent on the extinct as permanent and non-negotiable within evolutionary time. This article discusses two nonhuman protagonists at the heart of this emergent ontology: the bucardo, the only extinct animal to have ever been cloned; and the woolly mammoth, perhaps the most charismatic de-extinction candidate. 

The promise of de-extinction radically alters the way we perceive the event of extinction, through an introduced potential for the resurrection of extinct species. Some commentators note that it may inspire agnosticism toward extant animals, whereas others openly celebrate the prospect of optimism in public perceptions of conservation.  De-extinction has been perceived by some as active engagement with the Anthropocene,  symptomatic of the emergent role of technoscience in more-than-human relations, or as an extreme on the spectrum of introductory techniques in the conservationist’s toolbox.  Many scholars in the environmental humanities have demonstrated the multiplicities of extinction. Through an approach inspired by this literature, this article explores the various practices and performances at the interface of biology, technology, and culture in grounding the multiplicities of de-extinction, outlining differences between the bucardo and mammoth de-extinction stories. Taking into account these multiplicities of meaning, defining de-extinction becomes increasingly difficult, especially as one comes up against questions such as: are reintroductions (say, for example, of beavers in Scotland) de-extinctions? However, for ease of argument I follow the typology of Sherkow and Greely in their 2013 Science article, which maintains that de-extinction comes in three forms: back-breeding, cloning, and genetic engineering. 

Back-breeding, the practice of selective breeding in an attempt to reverse domestication, is an interesting approach to ecological restoration for extinct biota currently utilized by some practitioners in the rewilding movement.  This article focuses on the cloning and genetic engineering approaches to de-extinction, due to the use of novel technologies in the genetic governance of life, and their active interactions with the genome. The bucardo and the mammoth are perhaps the classic examples for exploring the practices of speculative science in the global de-extinction discourse. Cloning as a de-extinction tool is contingent on the availability of intact genetic material.  The bucardo is the only extinct mammal to be outlived by their cryopreserved material,  and therefore unique in its resurrection subjection to cloning, yet in an age of salvage cryogenics it is likely the first of many. The mammoth, conversely, is de-extinction’s celebrity candidate. As elaborated by Stephanie Turner, “for extinction narratives, the development of molecular biology means that species such as woolly mammoths and Neanderthals are not lost after all, but continue to exist as genetic codes residing in their remains, codes we are getting better and better at reading and interpreting.”  It is speculatively engaged by synthetic biologists owing to the relative abundance of its genomic material; the rate of biological deterioration diminished through the aid of permafrost. Yet intact cells remain fantastical, and as such a mammoth de-extinction would rely on a process of hybridization with the embryonic material of elephants. 

Entanglements with extinction in both of these cases are archetypal and the most developed, both theoretically and empirically, the justification for their inclusion in this essay. Beyond contrasting techniques, their juxtaposition invites reflection on the changing temporalities and materialities of extinction. Charismatic vertebrates have dominated the global de-extinction discourse, with birds and mammals populating candidate lists disproportionately.  Invertebrates and plants are rarely featured, reflecting the broader allocation of attention in wildlife conservation. Acknowledging that drawing upon these examples may further propagate this oversight, I would emphasize that these two de-extinction stories have been selected for their technoscientific peculiarities rather than the spectacle of the animals themselves. 

This article is not an argument for or against de-extinction, which is a blossoming and encapsulating debate in the ecological and environmental sciences,  bioethics,  law,  genetics,  and even tourism studies.  The list goes on in countless other disciplines, the media, and public imaginations. Phillip Seddon speaks for a significant number of people when he affirms that “de-extinction will be pursued—the reality of the idea is too sexy to ignore, and it could be driven by aesthetic, commercial, scientific, or some other hitherto unanticipated imperatives and motivations.”  As noted by Bill Adams, the prospect of de-extinction has the ability to grab headlines, to circulate and multiply to the extent that it has fallen out of contact with the scientific community.  Consequentially, de-extinction has been subject to intense speculation, and the means in which many come to engage it is at the interface of science fiction and speculative fact.  After calls for a social scientific narrative to de-speculate de-extinction,  this article works toward a theorization of de-extinction’s geographies in the present. I begin by introducing key theoretical aspects of this changing landscape, through which to interrogate the empirical stories of the mammoth and bucardo. These changing epistemologies implicate the geographies and ontologies of extinction. 

De-extinction is a speculative practice engaging the anabiotic: the liminal materiality between living and dead. Liminality is an established tradition in geography, initially conceptualized within the anthropology of ritual,  and is commonly understood as a transitional process between and on both sides of a boundary or threshold. Examples of geographical applications have included identities in cyberspace,  theoretical examinations of borders and diplomatic arenas,  international relations,  and diaspora;  the diversity of its conceptual malleability illustrated in a recent edited book called Breaking the Boundaries: Varieties of Liminality.  “Liminality is also a provocation to take process, creativity, and aspiration seriously.”  Liminality is, itself, a conceptual frame that works through “shaking up epistemological assumptions”  by collapsing binaries around constructed ontological borders, such as extinct/extant, dead/alive, immaterial/material, nonlife/life, and technological/vital. Recent scholarship has applied the concept to animals,  or liminanimals, as Clemens Wischermann and Phillip Howell celebrate the creativity of the hybrid encounter.  Through the stories presented later, I will explore the liminal geographies emerging at the heart of narratives encompassing taxa resurrection, those salvaged and the synthesized genomes in the geographies of de-extinction. De-extinction technologies and ideas unsettle, distort, and disfigure the spaces and temporalities of extinction. This liminal state of de/extinction recalibrates genetics and the genome into a multifaceted existence, being both in potentiality as information and in actuality as deoxyribonucleic acids, exceeding and encompassing the aforementioned dualisms. I use a slash (/) to differentiate this existential liminality from the concept or process of resurrecting extinct taxa that is denoted by hyphenation (-). This discursive function of the slash indicates “an active and reiterative (intra-active) rethinking of the binary,”  allowing the conceptualization of binaries as dynamic and enmeshed rather than strictly oppositional,  as liminal and uncanny. Depending on context, a slash can be used in three ways: to denote “and,” “or,” or the spanning of two discrete categories (e.g. 2011/12). De/extinction should be thought of as a proactive and interactive questioning of the extinction concept, one accounting for both extinction and de-extinction as coexisting actions perpetually rethinking one another, forceful and metamorphic. De/extinction is relative and only makes sense with a contemplation of trace; that is, to consider de-extinction is to consider what extinction is not, and vice-versa.  This ontology exists in a plane of potentiality with agency to shape the ways we engage with and perceive the worlds we inhabit, certainly questioning the notion of extinctions as irreversible and indefinite. 

In what follows this article will explore liminal materialities, two anabiotic existences that unsettle the previously held epistemologies of extinct and extant: the bucardo and the mammoth. Through exploring the materialities and agencies of DNA itself, these genomes distort the discreteness of life and death. Biologists engaging de/extinction optimistically make sense of candidate genomes dissimilarly: they are the salvaged ghosts of extinction’s lost pasts, the synthesized ghosts of extinction’s lost futures. The bucardo and the mammoth provide archetypal illustrations of salvaged and synthesized anabiosis, the “not anymore” and “not there yet.” Genomes are simultaneously material amino acids and immaterial codes of semiotic programming, the program of which is referred to as a text by the molecular biologist, the scriptural model of which Derrida contends is central to advances in postwar science.  “Literary metaphors have been woven into the fabric of molecular biology since its inception. The determination of the human genome sequence has brought these metaphors to the forefront of the popular imagination, with the natural extension of the notion of DNA as language to that of the genome as the ‘book of life.’”  These systems of meaning are appropriately engaged through a posthumanist lens, which “expresses multiple ecologies of belonging,”  encompassing the matters of language, discourse, culture; but, most notably, matter itself. Posthumanist thought has been influenced through Derrida’s writings on biology, founded through his conceptualization of trace [trace],  referring to that which formulates difference and its deferral of meaning [différance].  This postponement of action or event creates meaning and presence through absence, and is the opening in which binary oppositions can operate: those aforementioned concepts of life/death, extant/extinct, and nature/culture. Exploring the trace of bucardo and mammoth’s genomes poses to offer insights into what anabiosis ontologically and existentially is at present.

Discrimination and Online Behaviour

'Reasonable accommodation in Irish equality law: an incomplete transformation' by Lucy-Ann Buckley and Shivaun Quinlivan in (2020) Legal Studies comments 

The UN Convention on the Rights of Persons with Disabilities is the first international human rights convention to state expressly that discrimination includes the failure to provide reasonable accommodation. The duty has been described as transformative but has also been critiqued for its lack of structural impact. This paper evaluates the transformative potential of the reasonable accommodation duty encompassed by the Convention, and considers how its potential can be realised. It argues that the duty is transformative because of the substantive equality it provides for individuals, and because it requires both active engagement with persons with disabilities and proactive consideration of barriers to inclusion, in multiple contexts. However, it contends that full realisation of the duty's transformative potential depends on appropriate legislative formulation. This may be a problem in dualist states where application of the Convention is not automatic and pre-existing legislation may be perceived as satisfying the obligation. The paper supports this contention with an analysis of Irish law, arguing that the full transformative potential of the reasonable accommodation duty has not yet been achieved in Ireland, and identifying the reasons for this. The paper examines the practical consequences of inadequate implementation and highlights pitfalls and best practice.

In the UK the Law Commission  has released proposals for reform regarding harmful online behaviour including abusive messages or emails, cyberflashing, pile-on harassment and the malicious sharing of information known to be false. The Commission comments

 In the last two decades, the rise of the internet and social media has created extraordinary new opportunities to engage with one another on an unprecedented scale. However, the existing communications offences have not kept pace with changes in how we communicate: in some cases they fail to address harmful behaviours online, and in others they risk interfering with our rights to freedom of expression. The proposals ... aim to ensure that the law is clearer and effectively targets serious harm and criminality arising from online abuse. This is balanced with the need to better protect the right to freedom of expression. 

The proposals include: 

•  Reforms to the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm. This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim). This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003. 
• Introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences. 
• Cyberflashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available. 
• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse.

The Commission comments that online abuse is covered in the ‘communications offences’ found in section 1 of the MCA 1988 and section 127 of the CA 2003 

 these laws suffer from a range of problems. The offences do not adequately criminalise certain conduct – such as cyberflashing and pile‑on harassment – while the threshold of criminality, especially when applied to the online space, is often set too low. This can mean that freedom of speech is not properly protected. In short, these offences do not target the harms arising from online abuse. The result is that the law over‑criminalises in some situations, and under‑criminalises in others. ... 

 

  We provisionally propose two complementary offences to replace section 1 of the MCA 1988 and section 127 of the CA 2003: The first new offence relates to a defendant sending or posting a communication that was likely to cause harm to a likely audience. It would apply where a defendant intends to harm, or is aware of a risk of harming when sending or posting a communication, without reasonable excuse for doing so. The offence does not require proof that anyone was actually harmed. The aim of this proposed reform is to provide an effective mechanism for addressing a range of online behaviours. This could cover harmful and abusive emails, social media posts and WhatsApp messages, as well as pile-on harassment. The audience could include the recipient of a message, the defendant’s social media followers or other people – for example, someone else who sees a harmful tweet on Twitter. “Without reasonable excuse” is an element of the offence that must be proven by the prosecution. 

 

“Reasonable excuse” should be defined to include where the communication either was or was meant as a contribution to a matter of public interest. Under the proposals, the jury or magistrate will decide whether the defendant acted without reasonable excuse, but this factor must be considered. This requirement helps to ensure that freedom of expression is adequately protected. For example, it is unlikely that someone criticising the decision of a politician on Twitter, or airing a view on a particularly controversial issue, would be found to lack reasonable excuse. 

 

The second new offence addresses knowingly false communications. Under the existing offence, it is a crime to send a knowingly false communication for the purpose of causing “annoyance, inconvenience or needless anxiety”. Our proposals would raise this threshold. Our suggested threshold would be met if the defendant sends or post a communication that they know to be false, they intend to cause non‑trivial emotional, psychological, or physical harm to a likely audience, and they send it without reasonable excuse. 

 

Our proposals wouldn’t cover communications that the defendant believes to be true – no matter how dangerous those communications may be. The issue of ‘fake news’ lies beyond the terms of reference of this project so is not an issue that we tackle. 

 

We have also proposed reforms to cover cyberflashing which, for victims, is often experienced as a form of sexual harassment, involving coercive sexual intrusion into their lives. Whilst much of this behaviour would be captured by the proposed reforms, outlined above, we are also proposing: Amending Section 66 of the Sexual Offences Act 2003 to include the sending of images or video recordings of one’s genitals (“dick pics”) including when shared over AirDrop. That additional protections, such as Sexual Harm Prevention Orders, could be available when appropriate. 

PreTrial Procedures in Victoria

The Victorian Law Reform Commission in a report tabled this week has recommended changes to pre-trial procedures for serious crimes, including abolishing the test for committal. The report notes that pre-trial procedures include all the steps that occur before an accused person is put on trial for a serious crime (indictable offences). The VLRC was asked to review pre-trial procedures to make the system more efficient and less traumatic for victims of crime, while maintaining the right to a fair trial. 

 The Commission has recommended that the 'test for committal' (the process by which a magistrate decides whether the evidence is strong enough to send an accused person charged with a serious crime for trial in a higher court) should be abolished. The VLRC argues that step is unnecessary because the accused is only discharged in one or two per cent of cases. Instead, the defence should have the right to apply for a discharge of the accused when there is no reasonable prospect of conviction. For greater efficiency in pre-trial procedures, when matters fall within the jurisdiction of the Supreme Court, such as murder and treason cases, the pre-trial procedures should also be dealt with by the Supreme Court from the start. However, pre-trial case management for matters that will be heard in the County Court (including rape and sexual assaults, serious assault, serious theft, and drug trafficking) should continue to be handled by the Magistrates' Court. 

Other recommendations include: • reducing the number of hearings before trial • ensuring that experienced lawyers are involved at an early stage • reforms to the way charges are laid and evidence is disclosed • more involvement by the Director of Public Prosecutions (DPP) at an early stage • better protections to reduce trauma for victims and witnesses. 

 The report states - 

This report is about improving committal and other pre-trial indictable procedures to reduce trauma for victims and witnesses, improve efficiency in the criminal justice system, and ensure fair trial rights. 

The present committal and pre-trial system 

Most indictable criminal cases start in the lower courts. They progress through the ‘committal stream’ until either: i) the accused is committed by order of the Magistrates’ or Children’s Court for trial or sentence in a higher court ii) the matter resolves summarily, or iii) the prosecution is discontinued. 

The Criminal Procedure Act 2009 (Vic) sets out the role of the lower courts in managing indictable cases. This includes ensuring a fair trial through disclosure of evidence and cross-examination of witnesses; narrowing the issues in contention; determining how the accused proposes to plead and resolving matters where possible. 

This culminates with a magistrate determining if the evidence is of sufficient weight to support a conviction (the test for committal or committal determination). 

The case management conducted by the lower courts and the committal determination together constitute ‘committal proceedings’. 

Pre-trial case management also occurs in the higher courts after the accused has been committed for trial.  ...

Each year, approximately 3000 criminal cases go through some form of committal proceeding. Around 30 per cent of these resolve in the Magistrates’ Court. Around 60 per cent are committed to the County Court, around half of these for trial, the other half for sentence following a plea of guilty in the Magistrates’ Court. A further four per cent are tried or sentenced in the Supreme Court. 

Gaps in the data make it difficult to tell how common it is for victims and other civilian witnesses to be cross-examined more than once before trial, or both before trial and again at trial. 

Inadequate data collection also makes it difficult to identify when and why avoidable delay occurs. 

Data collection systems should be improved so that the performance of the criminal justice system can be better understood and evaluated. 

Notwithstanding the limitations in the data, it appears that: i) delay in indictable matters is no worse in Victoria than in other Australian states and territories, and Victoria compares favourably to most other jurisdictions ii) late guilty pleas are not more of a problem in Victoria than elsewhere. 

The test for committal 

Currently, magistrates must consider the evidence to determine if it is of sufficient weight to support a conviction for an indictable offence (the test for committal or committal determination). 

While the rationale for applying a committal test is sound—to provide independent scrutiny of an indictable prosecution—requiring it in all indictable stream matters is unnecessary; therefore the test should be abolished. The lower courts should, however, be empowered to discharge the accused on application by the defence, on the grounds that there is no reasonable prospect of conviction. Should the lower courts conduct indictable case management? 

It is now generally accepted that best practice case management requires the trial judge to deal with pre-trial case management. That has not, however, been the practice historically in Victoria for indictable matters. Further, the evidence suggests that the lower courts manage committal proceedings effectively and it would not be prudent to change the system at present. The same considerations do not apply to the Supreme Court. It is appropriate for the Supreme Court to deal with indictable offences within its exclusive jurisdiction from inception, consistent with modern case management principles. 

Apart from Children’s Court cases, cases within the exclusive jurisdiction of the Supreme Court should be filed in and managed by that Court, but only if this change is accompanied by adequate resourcing. 

There is scope to improve pre-trial procedure in the lower courts. As well as abolishing the test for committal, changes should be made to other procedures to improve efficiency while also ensuring fair trial rights and reducing trauma for victims and witnesses. These changes are set out in Chapters 6–12. 

Reforming pre-trial indictable case management: outline of a new system 

A single issues hearing should replace committal mention hearings and committal hearings. When cases are transferred to the County Court by order of a magistrate (assuming the test for committal is abolished and Supreme Court matters are filed in the Supreme Court), they should be accompanied by an issues hearing report so that judges in the County Court know about issues that arose in the lower court. 

The Director of Public Prosecutions (DPP) should assume formal prosecutorial responsibility in indictable matters at the filing hearing. 

The flow chart on page 65 illustrates the main components of the proposed system. 

Role of the DPP and defence practitioners 

To address issues related to charging and disclosure, the DPP should be actively engaged in the conduct of indictable proceedings in the lower courts. 

Measures should also be taken to ensure the early and continuous involvement of prosecution and defence practitioners. 

Charging practices 

Overcharging involves unnecessarily filing more charges than are ultimately indicted or pleaded. To address this, the DPP should provide binding charging instructions to informants in cases where there has been an investigation prior to apprehension of the alleged offender. In other cases, the DPP should review the charges within seven days of being provided with the brief of evidence. 

Other measures to reduce overcharging include providing training to Victoria Police officers. 

The prosecution should ensure that victims are informed about and consulted in relation to decisions to withdraw charges or discontinue a prosecution. 

Disclosure 

Inadequate early disclosure is a problem. A range of measure should be taken to address it, including making the DPP responsible for disclosure to the accused, and the informant responsible for disclosure to the DPP. 

Other measures include clarifying that the prosecution must disclose the general existence of material that the informant objects to producing in the hand-up brief; further expanding the list of material that the Criminal Procedure Act 2009 (Vic) specifies must be included in the hand-up brief; and requiring the informant to give disclosure evidence at an issues hearing. 

Forensic reports and delay 

Achieving timely disclosure of forensic evidence is difficult and the provision of forensic reports is a major source of delay. Some of this delay may be unavoidable given the time required to conduct some forms of forensic analysis, but better funding of forensic service providers and case conferencing between the parties and forensic analysts should reduce delay. 

Pre-trial cross-examination 

Pre-trial cross-examination often contributes to early resolution and better disclosure but it can also be stressful or traumatising for victims and other witnesses. The current test for leave to cross-examine at a committal hearing should be applied more strictly in accordance with its terms, and additional criteria for leave should apply in some cases. 

Existing prohibitions on cross-examination should be extended to include all cases involving family violence where the complainant was a child or person with a cognitive impairment when the proceedings commenced. 

The intermediaries pilot program should be expanded to assist all witnesses with communication difficulties, and alternative arrangements for giving evidence should be used wherever necessary to reduce trauma for victims and witnesses. 

Children’s Court 

As a specialist jurisdiction the Children’s Court should continue to manage committal proceedings, including cases within the exclusive jurisdiction of the Supreme Court. 

The Children Youth and Families Act 2005 (Vic) should be amended to clarify certain processes in the Children’s Court.

The Commission's recommendations are 

Chapter 3 Committal system and indictable case data 

1 The Magistrates’ and Children’s Courts should collect detailed data about pre-trial cross-examination. 

2 The case management systems used by the Magistrates’ and Children’s Courts should be linked with the higher courts’ case management systems to enable the creation of a single electronic case file for indictable cases. 

Chapter 4 The test for committal 

3 The test for committal, which involves a magistrate assessing if the evidence is of sufficient weight to support a conviction for an indictable offence (referred to in chapter 4, part 4.9 of the Criminal Procedure Act 2009 (Vic) as the committal determination) should be abolished. 

4 In place of an order for committal, the mechanism for transfer of indictable charges from the lower courts should be an order of the Magistrates’ or Children’s Court that the accused either: (a) appear for plea and sentence in a higher court on a date to be determined, or (b) stand trial in a higher court on a date to be determined. 

5 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the accused may apply to the Magistrates’ or Children’s Court for an order that the accused be discharged and to empower the Magistrates’ and Children’s Courts to discharge the accused on the relevant indictable charge or charges if satisfied that there is no reasonable prospect of conviction. 

Chapter 5 Should the lower courts conduct indictable case management? 

6 The lower courts should retain a case management function for indictable stream matters that will be heard in the County Court. 

7 The Criminal Procedure Act 2009 (Vic) should be amended to require that matters within the exclusive jurisdiction of the Supreme Court are filed in the Supreme Court, aside from Children’s Court matters. 

Chapter 6 Reforming pre-trial case management: outline of a new system 

8 The Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions to assume formal prosecutorial responsibility in cases involving indictable offences from the filing hearing onwards. 

9 The Criminal Procedure Act 2009 (Vic) should be amended to require that a case direction notice is filed before an issues hearing rather than a committal mention hearing. 

10 If an application for summary jurisdiction includes an application for a Koori Court hearing, this should be stated in the case direction notice and the Magistrates’ Court registrar should list the issues hearing before a Koori Court magistrate. 

11 Section 127 of the Criminal Procedure Act 2009 (Vic) should be amended to require that a case conference be conducted during an issues hearing in all indictable cases, regardless of offence type. 

12 The Criminal Procedure Act 2009 (Vic) should be amended to replace committal mention hearings and committal hearings with an issues hearing. 

13 Magistrates should be required to prepare an issues hearing report for transmission to the County Court. 

14 The courts should be adequately funded to support any changes to their case management role. 

Chapter 7 Role of the DPP and defence practitioners 

15 Experienced practitioners should be engaged at an early stage in proceedings and have continuing responsibility for the case until trial or resolution. 

16 The Director of Public Prosecutions and Victoria Legal Aid should be provided with additional funding to ensure experienced practitioners have oversight of committal proceedings from the outset and are responsible for the conduct of matters until final resolution, including in the higher courts. 

17 Fee structures at Victoria Legal Aid and the Office of Public Prosecutions should provide for the early involvement of counsel and to ensure continuity of representation. 

18 Victoria Legal Aid and the Office of Public Prosecutions should regularly and publicly report, preferably in their annual reports, on: (a) measures used to ensure legal practitioners acting in indictable matters retain responsibility for those matters for the lifetime of the prosecution (b) the success of these measures. 

Chapter 8 Charging practices 

19 Victoria Police officers should receive regular and up-to-date charging training. 

20 In cases where indictable charges are filed immediately following apprehension, the Director of Public Prosecutions should review the charges within seven days of receipt of the hand-up brief from the informant. 

21 In cases involving a suspected indictable offence that has been the subject of an ongoing investigation prior to arrest, the investigating agency should prepare an ‘initial charge brief’. This should be provided to the Director of Public Prosecutions before any charge sheet is filed. 

22 The Director of Public Prosecutions should review any ‘initial charge brief’ received and provide charge instructions to the informant. Charge instructions should be binding on the informant. 

23 The Criminal Procedure Act 2009 (Vic) should be amended to give the Director of Public Prosecutions the power to withdraw, amend or file charges in the Magistrates’ and Children’s Courts. 

Chapter 9 Disclosure 

24 While the informant should be required to prepare the brief of evidence, the Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions (DPP) to file and serve the brief and assume all obligations of disclosure to the accused currently imposed by the Act on the informant. The DPP should ensure the existence of material that the informant objects to producing is communicated to the accused. 

25 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the Director of Public Prosecutions’ disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution. 

26 The Public Prosecutions Act 1994 (Vic) should be amended to empower the Director of Public Prosecutions to make enquiries of the informant in relation to disclosure, and to require the informant to respond to those enquiries. 

27 Additional resources should be provided to the Office of Public Prosecutions to allow it to manage its increased disclosure obligations. 

28 Part 4.4 of the Criminal Procedure Act 2009 (Vic) should be amended to make it clear that the informant has a continuing obligation of disclosure to the Director of Public Prosecutions (DPP). This obligation commences at the filing hearing and includes preparation of the hand-up brief, which must be provided to the DPP before the date specified by the Magistrates’ Court at the filing hearing for service of the hand-up brief on the accused. 

29 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the informant’s disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution. 

30 The Criminal Procedure Act 2009 (Vic) should be amended to specify that informants have an obligation to retain potentially disclosable material for as long as their disclosure obligations continue. 

31 Systems should be established at investigating agencies to ensure that: (a) informants are made aware of, or able to obtain information concerning, potentially disclosable material that exists or is known about within other parts of the agency (b) potentially disclosable material is retained and not destroyed. 

32 The Criminal Procedure Act 2009 (Vic) should be amended to require the informant, unless excused by the court, to appear at the issues hearing and provide evidence that: (a) all available relevant material has been disclosed to the Director of Public Prosecutions (b) all reasonable enquiries have been made by the informant to determine if there is any additional relevant material in existence. 

33 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the informant’s disclosure obligations to the Director of Public Prosecutions (DPP) apply regardless of claims of privilege, public interest immunity, or statutory immunity, but where such claims are made, the material that is the subject of these claims need not be produced to the DPP. The informant must indicate to the DPP the grounds on which the objection to production is made. 

34 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to require reference in the hand-up brief to the general existence of material that the informant objects to producing and the grounds for the objection. 

35 The Magistrates’ Court Rules 2019 should be amended to clarify that the list of contents that must accompany the hand-up brief and be signed by the informant (currently Magistrates’ Court Form 30) includes a field noting the existence of material, if any, that the informant objects to producing. 

36 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include a section explaining that a hand-up brief must disclose all relevant material, including all information, documents or other things obtained during the investigation that are exculpatory or might reasonably be expected to: (a) undermine the case for the prosecution or (b) assist the case for the accused. 

37 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include, in addition to the other materials that a hand-up brief must contain, a list of the materials contained in the list of ‘Standard Disclosure Material’ currently set out in Magistrates’ Court Practice Direction No 3 of 2019. 

Chapter 10 Forensic reports and delay 

38 Funding for forensic service providers should be increased to support faster preparation of forensic reports. 

39 Forensic service providers should publicise current turnaround times for the provision of reports and the courts should have regard to these when setting dates for the service of reports. 

40 Forensic case conferencing between forensic experts and the prosecution, based on the existing model used in clandestine laboratory drug cases, should be adopted in all cases where forensic evidence is in issue. 

41 Forensic case conferencing between forensic experts and defence practitioners should be encouraged in cases where forensic evidence is in issue. 

Chapter 11 Pre-trial cross-examination 

42 Section 123 of the Criminal Procedure Act 2009 (Vic) should be amended to prohibit cross-examination in the lower courts of any witnesses in cases where the complainant was a child or person with a cognitive impairment when the proceedings commenced and where the conduct constituting the offence involves family violence within the meaning of the Family Violence Protection Act 2008 (Vic). 

43 Any amendments to expand section 123 to include family violence offences should be accompanied by appropriate resourcing of the Courts, the Office of Public Prosecutions, Victoria Police and Victoria Legal Aid. 

44 There should be a formal evaluation of the operation of the scheme created by sections 123 and 198A of the Criminal Procedure Act 2009 (Vic) to determine if it is operating in the best interests of victims and witnesses, and its broader resource implications. 

45 Section 124(5) of the Criminal Procedure Act 2009 (Vic) should be amended to require that the considerations in the section also apply to applications for leave to cross-examine witnesses with a cognitive impairment, and victims in cases involving sexual or family violence. 

46 Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to require a magistrate to provide written reasons why, with reference to sections 124(3) – (5), leave was granted to cross-examine witnesses. 

47 The Criminal Procedure Act 2009 (Vic) should be amended to allow for an intermediary to be appointed to assess any witness with communication difficulties following an application by a party or on the court’s own motion. 

48 Division 4 of part 8.2 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the court may make directions for alternative arrangements for taking the evidence of any witness where the interests of justice so require, and taking into account the need to minimise trauma for victims and witnesses. 

Chapter 12 Children’s Court 

49 The Children, Youth and Families Act 2005 (Vic) should be amended to require applications for summary jurisdiction be made prior to, or at, the issues hearing. Applications for summary jurisdiction should only be made after an issues hearing in exceptional circumstances. 

50 The Children, Youth and Families Act 2005 (Vic) and the Criminal Procedure Act 2009 (Vic) should be amended to permit issues hearings to be held jointly in cases involving child and adult co-accused. 

51 The Children, Youth and Families Act 2005 (Vic) should be amended to allow the Children’s Court to transfer related indictable offences for hearing and determination in the County or Supreme Courts, in cases that are uplifted from its jurisdiction.

Heterotemporality

'Chronopolitics: A conceptual matrix' by Ian Klinke in (2013) Progress in Human Geography comments 

This article engages the platform of critical geopolitics through conceptual clarification of the debates around chronopolitics (the politics of time). It argues that the current literature has either reduced it to the dynamic of ‘speed’ or the ‘modern’ time consciousness in geopolitics. After re-emphasizing a narrative understanding of temporality and a non-dichotomous conception of space and time, the article highlights the heterotemporality of geopolitical discourse. It suggests that chronopolitics should be understood not as an alternative to geopolitics but as one of its crucial elements – and one that can also be found in the project of a critical geopolitics.

Klinke argues

Despite legitimating some of the darker episodes of 19th- and 20th-century history, the tradition of geopolitics continues to haunt world politics. It is in geopolitics that practitioners, academics and journalists declare to have found a sober and apolitical view that allows them to perceive a deeper layer of reality – to see the world as it really is. The continued existence of geopolitical writing has attracted academic interest and the last two decades have therefore given birth to critical geopolitics, a diverse and challenging body of scholarship, that has set out to investigate and critique the continued undead presence of geopolitics. Challenging it both as an expert-level form of power/knowledge and as a wider cultural discourse, critical geopolitics tries to strip geopolitics of its self-evidence. In its analysis of geopolitics as a spatial ritual, the critical study of geopolitics has concentrated especially on three discursive practices. First, it has addressed the delimitation of a familiar ‘self’ space from an unfamiliar and often threatening ‘other’ space (Campbell, 1992; Dalby, 1990: 39; Gregory, 2004: 17). Second, it has revealed geopolitics to be a detached, privileged and panoramic (God-like) vision that entices the observer through positioning it in a pretend position above geographic space (Agnew, 1998: 11; Dodds, 2005: 2; O Tuathail, 1996: 23). Third, it has critiqued how geopolitics simplifies complex social processes with the help of binary oppositions and catchy spatial  labels (O Tuathail and Agnew, 1992: 195; O Tuathail, 2006: 2), the latter visualized in maps, cartoons and films (Dittmer, 2010; Dodds, 1996). Engaging both theoretical and empirical debates, critical geopolitics – more of a platform than a grand theory – has brought a unique focus on space, boundaries and vision to the study of global politics. 

Perhaps because of its relative success, some key proponents of a critical geopolitics have recently displayed a slight reluctance towards reform. Turning away from developing critical geopolitics as a theoretical apparatus, the emphasis has been on fulfilling its promise as a tool for thick description research (O Tuathail, 2008, 2010a). It has been argued for the conservation of critical geopolitics, urging scholars to keep a ‘narrower focus on the geostrategic knowledges used to legitimize warfare, and more generally security’ (Dalby, 2010: 286). Others in the field have been less content with the current state of critical geopolitics. Critics have come from a number of theoretical positions, some of which are more sympathetic to the cause than others. It has included those on the more classical geopolitical end of the spectrum who have argued against the explicit ethics that (some) critical scholars of geopolitics have adopted (Black, 2009) or have sought a compromise between critical and classical geopolitics (Kelly, 2006). This group of (partially) external critics has also included those who have proposed a more ‘radical’ or Marxist geopolitics (Geopolitics, 2011; Mercille, 2008) as well as those who have urged critical geopolitics to take its feminism more seriously (Dowler and Sharp, 2001; Hoerschelmann, 2008; Hyndman, 2004). Additionally, it has encompassed a number of critics, some post-structuralists, who have argued for an intellectual engagement with material practices of the every-day with the help of ethnographic fieldwork (Dittmer and Gray, 2010; Megoran, 2006; Mu ̈ller, 2009; Thrift, 2000) and have urged critical geopolitics to address its ethical (Megoran, 2008) and epistemological tensions (Mu ̈ ller and Reuber, 2008). Finally, there are also those who have examined the relationship between geopolitics and biopolitics (Gregory, 2009) or the replacement of the former by the latter (Amoore, 2006; Campbell, 2005: 947). 

This article wishes to add to the debates surrounding critical geopolitics by taking as its starting point two existing attempts to incorporate the concept of chronopolitics into the platform. The first of these, originally inspired by Paul Virilio’s ‘hypermodern’ writings on speed and war, is found to sit uncomfortably within critical geopolitics because of its treatment of time as something accelerating outside narrative construction. It has also somewhat rigidly separated time from space. Instead, it is proposed here that critical geopolitics should tune its conception of chronopolitics to its discursive understanding of geopolitics, and see space and time as closely intertwined. This article also takes issue with a second more postcolonial literature on chronopolitics that has highlighted the modern progressive othering at the core of western geopolitics. Although this postcolonial critique of a modern conception of time does capture the temporality of much geopolitical writing, it leaves unexplored the complexity of modern temporal experience as well as the non-modern temporalities that (continue to) operate in geopolitical texts of all sorts. Notions of familiarity, recurrence, repetition and regularity are crucial alongside modern linear progressive and declining constructions of time. They permeate bestsellers on world politics, broad-sheet commentary, thinktank papers, politicians’ speeches and Hollywood blockbusters. 

Although some of its analytical efforts have arguably gone into an exploration of the temporal logics that underpin geopolitical discourse (Sharp, 2000: 43, 91), critical geopolitics has tended to reduce conceptually global politics to a ‘spatial spectacle’ (O Tuathail, 1996: 60). In line with scholarship in International Relations that has investigated modern politics as ‘spatial politics’ (Ruggie, 1993; Walker, 1995: 306; for a recent exception, see Hom, 2010), geopolitics is rendered ‘the ideological process of constructing spatial, political and cultural boundaries to demarcate the domestic space as separate from the threatening other’ (Dalby, 1990: 137, emphasis added; see also Agnew and Corbridge, 1995: 4–5; Mamadouh, 1999: 124). This preoccupation with space has been rooted in the platform’s self-understanding as a resistance against the subordination of space in western intellectual thought (O Tuathail, 1996: 24; Soja, 1989: 11), the inspiration for which can be found in the work of Michel Foucault, who claimed that ‘the present epoch will perhaps be above all the epoch of space’ (Foucault, 1986: 22; see also Dalby, 1990: 21). This emphasis on spatiality has not gone unnoticed, and one observer already complained more than a decade ago that ‘the centrality of the spatial in the modern imagination’ needed ‘a more considered justification’ in critical geopolitics (Heffernan, 2000: 349). If, as one observer remarks, time is always ‘deeply involved in geopolitics’ (Aalto and Berg, 2002: 267), then critical geopolitics needs to assemble more conceptual tools to unpack it. An important step towards a more sophisticated conception of chronopolitics is to recognize that critical geopolitics is already engaged in analyses of political time, even if it does not always admit to it. Questions of prediction, historical analogy and even periodization have played a key role in the analysis of geopolitical discourse, but the many references to geopolitics as the politics of space alone inhibit a full appreciation of how these questions are chronopolitical. Perhaps critical geopolitics has taken a little too seriously Foucault’s injunction to write a history of spaces (Foucault, 1980: 149). 

It is important to note that any critique of critical geopolitics is made difficult by the way the platform’s eclecticism is valorized and a unified definition of critical geopolitics is rejected (Campbell and Power, 2010; O Tuathail, 2010b; O Tuathail and Dalby, 1998: 7). 

Although some authors discussed in this article may not align themselves with the label of critical geopolitics, it is possible to associate them with the platform because of similar analytical foci and normative positions. This article closes in on the version of critical geopolitics that is still the most prevalent. It is the body of literature that has rejected the state-centric nature of thinking about global politics, emphasized the discursivity of geopolitics, and problematized the binary spatial identities that are constructed through geopolitics. The aim of this article is to promote an understanding of chronopolitics not as an alternative to geopolitics (something that rivals it) but as something already at work within it. Temporal language contaminates geopolitical writing and collective identities are produced as much through temporal boundaries as they are through spatial ones. Furthermore, what often escapes the critical geopolitical eye is that geopolitics employs not only a spatial ‘God-trick’ that scans and classifies the globe, but also a detached perspective on history that carves it up into neat periods, thereby placing the geopolitician in the superior position of he who knows time. 

This article sets out both to provide a conceptual clarification of chronopolitics and to offer a theoretical toolbox for the analysis of political time in geopolitical discourse. Notions such as chronotope, narrative, heterotemporality and periodization open up the possibility of distinguishing better between different types of geopolitics. The utility of this conceptual toolbox will be demonstrated with the help of examples taken from a number of geopolitical bestsellers, from Kissinger to Chomsky. After a discussion, in section II, of the limitations of existing conceptions of chronopolitics, the article moves on to re-ignite a narrative understanding of temporality and non-dichotomous concepts of space and time, in section III. While a return to narrative theory improves our comprehension of the relationship between language and time, the notion of the chronotope helps us to understand how such geopolitical narratives are structured around key spatiotemporal symbols. Section IV suggests the concept of heterotemporality in order to account for the temporally polymorphous rather than monolithic nature of geopolitics. The final section discusses how different temporalities manifest themselves in periodization, the simple practice of carving up time.