Monsters and others

From Steve Dow's critique of Prime Minister Gillard's stance on the marriage of 'other' people, ie the maintenance of a civil disability on same-sex couples

Gillard reiterated her opposition to same-sex couples tying the knot, saying "we should find other ways of recognising the value of other relationships".

The Prime Minister's use of ''other'' is telling. A trained lawyer who idolises teachers now as she did when young, she must surely be aware of the implication of her language. 

Otherness has been applied to gender, race, religion, class, political ideology, place of birth: psychoanalysts to feminists to postmodernists have theorised ''the other'' as a label by which those in power relegate another group, sometimes but not always a minority, as not belonging, as inferior.

Gay men and lesbians, in particular, continue to be subjected to a load of othering. When her leader labelled ''other'' the likes of Wong's long-term relationship with her partner Sophie Allouache - who gave birth to the couple's daughter, Alexandra, last December - what must have run through the Finance Minister's head?

Might she have been tempted to respond, as she did to applause on the Q&A program in May, "I know what my family is worth"?

… It takes my breath away that Gillard can be proud her speech attacking the Opposition Leader for misogyny has had an international impact, but be unable to explain her internationally isolated moral blind spot, in the developed world at least, on a policy that causes violence to the psyche of her same-sex attracted constituents. A policy that says: you are inferior, you don't belong. 

If Gillard takes pride in Australia's international standing, consider this: by developed-nation standards we're starting to look stupid, a bigoted backwater. Same-sex marriage is legal in an increasing number of countries, among them Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden. Sure, there are ''other'' forms of recognition of ''other'' relationships: there are same-sex civil unions or registered partnership schemes in, among other countries, France, Germany, New Zealand (from where my partner hails) and Switzerland. 

But on a national level, we don't even have an equivalent to those civil schemes yet. And separate is not equal, hence several of these countries are upgrading their gays and lesbians: England and Wales, for instance, will likely have same-sex civil marriage by 2015. Our Kiwi neighbours across the ditch will get there before we do.

A different perspective on norms, boundaries and otherness is provided in 'Making Monsters: The Polygraph, the Plethysmograph, and Other Practices for the Performance of Abnormal Sexuality' by Andrew Balmer Ralph Sandland in 39(4) Journal of Law and Society (2012) 593-615

 This article addresses the use of the polygraph, penile plethysmograph, and other practices for the management of sexual offenders as part of the ‘Containment Approach’, a strategy increasingly common in the United States which is, in part, being trialled in the United Kingdom. The polygraph has a tangled history with abnormal sexuality, as we describe in the context of homosexuality in the 1960s. We examine how these strategies target sex offenders as malleable in regard to sexual performances but also, through notions of risk management, paradoxically constitute offenders as fundamentally incurable and thus permanently risky. Using Foucault's notion of the ‘abnormal’, we investigate the implications of this risk management/ performance paradox. We conclude that it reveals a certain anxiety about the relationship between abnormal and normal sexual behaviour in contemporary sex‐offender management discourse, which can help explain the emergence of these practices.

'US, EU & UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children' by James Jacobs & Dimitra Blitsa in European Journal on Crime, Criminal Law & Criminal Justice (Forthcoming) notes that

 Fear and anxiety about sexual predators who target children has stimulated legal initiatives in the US, EU and UK to encourage/require background screening for public and private sector job applicants and volunteers for positions that afford access to children. This Article examines the political, legal and logistical challenges that such initiatives have and are facing in three important legal regimes. 

The authors comment that

Horrific sex crimes against children in the US, continental Europe and the UK have led to extensive legislative and administrative efforts to prevent convicted sex offenders from committing future crimes against children. One of the most important preventative strategies has been to disqualify previously convicted sex offenders from holding jobs and volunteer positions affording close contact with children. Political reality makes it very difficult to reject this strategy, at least in principle. 

The US policy is much simpler than the EU’s or the UK’s. Federal and state online sex offender registers allow any member of the public to identify convicted sex offenders who live anywhere in the US. All employers (not just those providing children’s services) can search court and other public records for current and prospective employees’ past convictions. Certain child services employers are required by federal or state law to conduct criminal background checks. Except for some state laws that prohibit convicted sex offenders from occupying certain occupations and positions, employers and volunteer organisations can decide for themselves which (not only sexual) convictions render a job applicant or employee unsuitable for certain positions. Employers prefer this regime because it gives them control over hiring and allows them to take steps they think necessary to avoid potential civil liability caused by employees who injure a client, customer or fellow employee. The disadvantage from the continental European perspective is that it violates the convicted person’s privacy and hinders rehabilitation. 

The EU, although committed to the confidentiality of criminal records, is encouraging Member States to commit to pre-employment sex offender vetting, while pursuing its long-term goal of better criminal record information sharing. The EU has sought to ensure: 1) that convicted sex offenders may be identified and barred from working with children, and 2) that child sex offence convictions in any EU Member State should be accessible to employers working with children in every Member State. Progress towards these goals has been slow, but steady. Many legal, practical and political obstacles remain. The UK is the EU Member State that has gone furthest in trying to implement such a regime. A public body is responsible for determining which positions should be closed to sex offenders. Employers and volunteer organisations have a duty to check the criminal background of those applying for positions affording close contact with children. Employers and volunteer organisations are prohibited from hiring individuals barred from working with children. 

There is good reason to believe that current employment vetting regimes are going to continue evolving. Every employment vetting scheme faces tough policy choices. Which convictions should be disqualifying and for how long? How much access to children should render a job or volunteer position subject to vetting? Should only sex offence convictions be disqualifying? What about pending charges? What about police intelligence? Should only convictions for prior sex crimes against children be disqualifying? Should a prior sex crime conviction against an adult victim disqualify the perpetrator from later working with children? What about non-sex crimes against children? And what about drug trafficking? 

Is it likely that a fully established employment vetting scheme will remain limited to protecting children? Should it be? The US and the UK have already expanded their employment vetting schemes to cover positions affording close contact with other vulnerable groups, e.g. the elderly and the handicapped. There is inexorable pressure to extend employment vetting to more professions, occupations and positions. Should persons who have been convicted of fraud be screened from working as financial advisers? Should persons who have been convicted of drunk driving be disqualified from driving school buses or piloting aeroplanes? 

Finally, the logic of employment vetting scheme should lead to vetting job seekers’ convictions in foreign countries. A day care job applicant previously convicted of sexually abusing a child in an Asian country should be of as much concern to a US, UK, or EU employer as a job applicant with a similar conviction in the home jurisdiction. In the future, because information technology will make foreign convictions much more accessible, we should expect steady pressure to expand employment vetting to foreign convictions. However, this will require solutions to very difficult legal and logistical problems.

Animal Acts

'The Origins and Efficacy of Private Enforcement of Animal Cruelty Law in Britain' by Jerry Anderson in 17(2) Drake Journal of Agricultural Law (2012) 263-310 notes that

 In 1822, the British Parliament enacted “An Act to prevent the cruel and improper Treatment of Cattle,” generally recognized as the first statute of any nation specifically targeting animal cruelty. Richard Martin, a colorful and eloquent member of the House of Commons from Galway, was the legislation’s principal author and champion and after the law’s enactment worked tirelessly to ensure its enforcement. Thus, this landmark statute is appropriately known as “Martin’s Act.” Martin’s Act made it a crime, subject to a penalty of up to five pounds or three months in prison, for any person to “wantonly and cruelly beat, abuse or ill treat” various types of livestock, including horses, cattle, and sheep. In one simple sentence, the Act established an important new norm governing the relationship of human to animals. 

The substance of Martin’s Act has been thoroughly examined, with a deserved focus on the Act’s departure from the traditional view of animals as property, subject to their owner’s absolute power. The Act criminalized behavior that previously had been considered well within the rights of the animal owner. Nevertheless, the new legal norm would have become a mere footnote in history had it not been for the immediate, vigorous, and sustained enforcement of its provisions. Remarkably, the enforcement of Martin’s Act crimes occurred largely through the efforts of private parties rather than public prosecutors.  

The Act enabled private enforcement by specifically authorizing the magistrate to issue a summons or warrant to offenders upon the sworn complaint of any person. Private enforcement was crucial because the abused animals could not speak for themselves and the animals’ owner (or the owner’s servant) was often the abuser. At the time Martin’s Act became law, English crime victims typically carried out their own prosecutions and only the most egregious felonies were prosecuted by the Crown. In animal cruelty cases, however, victims could not prosecute or even lodge a complaint; instead, prosecution would rest with third parties who had only a general moral interest in halting animal abuse.  

Martin himself brought many of the early prosecutions under his newly minted Act, and frequently patrolled the streets of London, on the watch for animal mistreatment. In 1824, he and other animal protection activists formed an organization - the Society for the Prevention of Cruelty to Animals - to take on the task of investigating and prosecuting abuse. The Society began slowly, hiring a few inspectors to frequent the London livestock markets and bring prosecutions. In the 1830s, it brought a total of 1357 prosecutions, mostly in London. In each subsequent decade, the Society added inspectors and increased prosecutions, so that by the 1890s it had a nationwide force of 120 inspectors and during that decade brought an astounding 71,657 prosecutions. 

Nearly two centuries after this beginning, the Society has retained its important role in the prosecution of animal abuse crimes, which now encompass cruelty to pets as well as livestock. In 2010, the Royal Society for the Prevention of Cruelty to Animals (RSPCA or “the Society”), which is self-described as “the largest non-governmental law enforcement agency in England and Wales,” fielded over a million telephone calls, investigated almost 160,000 complaints of animal cruelty, and secured convictions of 1086 offenders on 2441 charges. 

Although the RSPCA (and in Scotland, the SSPCA) is now incorporated by statute, it has no special authority beyond that of any other citizen; yet, it has become and remains the de facto prosecutorial authority for many animal cruelty cases. Thus, we have “something of a constitutional novelty for a significant body of law to be largely enforced through the efforts of a charitable organization, funded entirely by voluntary contributions.” 

In the United States, private prosecution of animal abuse began in New York City in 1866, after the American Society for the Prevention of Cruelty to Animals (ASPCA) was organized by Henry Bergh, using the RSPCA as his model. In some ways, the ASPCA enjoyed even greater powers than its British counterpart. For example, the New York legislature gave the society a right to issue its own arrest warrants in certain cases, a “truly extraordinary” delegation of criminal enforcement authority. Ernst Freund noted that this “partial reliance upon voluntary associations for the enforcement of the law” was a “peculiar feature” of anti-cruelty legislation in the United States. Several other states also gave enforcement powers to private humane groups during the last decades of the nineteenth century and early part of the twentieth century. As historian Susan Pearson has noted, the deputizing of animal welfare groups in the Gilded Age “expanded state power through private means.” Many states continue to allow private enforcement of animal cruelty statutes, although in most states the power does not appear to be frequently used. Although American private prosecutions of animal abuse cases never reached the prominence of RSPCA efforts, evidence shows that it arose from similar causes and suffered from similar disadvantages. This Article, however, will focus on the British system of private enforcement, which was a precursor to the American approach and had a longer history, with some comparative references to the American experience. 

Reliance on private prosecution of crimes was not unusual in early nineteenth-century Britain. The “prosecuting society” model had become well-established in Britain by the time the RSPCA began its activities. As early as the seventeenth century, interest groups formed to pool the resources necessary to prosecute criminal activity, in order to fill the vacuum created by a small or non-existent constabulary. In most cases, these prosecuting societies aimed to protect the self-interest of their members - such as the groups of shop-owners organized by Henry and John Fielding to prosecute thievery. Many of the societies were local, formed by groups of town citizens to provide adequate prosecution of crimes thought necessary to ensure public safety. In other cases, the groups formed to prosecute the type of moral offenses that public prosecutors were unable or unwilling to take on. 

None of these prosecuting societies, however, enjoyed the extensive, widespread, sustained success of the RSPCA. Moreover, at least on the surface, the RSPCA differed from these previous societies in terms of its primary motivations, which were altruistic rather than self-interested. This society was formed, not to promote the security of its members, but rather to protect those who could not protect themselves. This difference may be overstated; below the surface, RSPCA prosecutions may have served very similar moral improvement and social control motives of the vice societies and thereby, at least indirectly, may have served the security interests of the Society’s members. Nevertheless, the Society’s stated goal of protecting the powerless - i.e., animals - has more in common with the altruistic societies formed to protect abused children. In fact, in the United States, anti-cruelty groups protecting animals were closely linked to those protecting children. 

Although the Society engaged in educational campaigns and pursued Parliamentary objectives, vigorous prosecution of the law was an essential part of the organization’s strategy from the beginning. As Pearson notes, with regard to American anti-cruelty societies, the ability to prosecute made the educational efforts more effective, coupled as they were with the warning of prosecution in the future. The prosecutions not only stopped the particular abuser accused of the crime, they also provided a more general deterrent and helped to inculcate the public, the police force, and the judiciary with the new norm of behavior toward animals. In addition, the prosecutions helped define the contours of permissible treatment of animals, and in some cases expanded the accepted definition of animal cruelty. 

The RSPCA’s extensive campaign of prosecution provides modern reformers an opportunity to explore the implications of relying largely on private parties to enforce animal abuse crimes. In most criminal contexts, the victim sets the enforcement machinery in motion by complaining to the police and pressing the public prosecutor to pursue the case. In the case of powerless victims such as animals, however, that system does not work. Not surprisingly, animal welfare laws have suffered from low public prosecution rates, which one critic has attributed to “differences in the values people place on prosecution, the costs involved in investigating cases, and the difficulties of proving the criminal violations.” Private enforcement could overcome at least some of these obstacles, resulting in more vigorous enforcement of cruelty laws. Thus, analyzing the advantages and disadvantages of private enforcement, including its particular historical context, could help us assess whether a similar method would be appropriate and useful in enforcing animal cruelty laws today. 

This Article begins by setting out the details of Martin’s Act and subsequent amendments that expanded its reach. The Article then describes the RSPCA’s extensive campaign of animal cruelty prosecution and explores the historical conditions, both societal and legal, that motivated and enabled it. The Article places the activities of this prosecuting society in the larger context of the nineteenth century’s changing views of the role of criminal law and how it should be enforced. The Article then attempts to assess the efficacy of private prosecution in the context of animal abuse, in comparison to other types of crime. The Article concludes that private prosecution enabled the Society to more quickly inculcate the new norm of animal care and may have been necessary to ensure the anti-cruelty law’s effectiveness. Nevertheless, the private enforcement mechanism also had significant drawbacks that could never be completely eliminated. As modern animal welfare advocates search for the optimal methods of animal welfare reform, this remarkable history should prove instructive.

Branding TK

'Branding Indigenous Peoples' Traditional Knowledge' by Susy Frankel in The Law of Reputation and Brands in the Asia Pacific (Cambridge University Press, 2012) edited by Andrew Kenyon, Megan Richardson and Wee Loon Ng-Loy

discusses the limited ways in which branding strategies involving trade marks and geographical indications can be used to protect traditional knowledge. The chapter concludes that these intellectual property mechanisms cannot, on their own, achieve the goals of indigenous peoples in protecting traditional knowledge and in utilising that knowledge for development.

Frankel notes that

Traditional knowledge (TK) is not only information to many indigenous peoples; it is part of their identity. In a broad and non-legal sense of the concept of brand, indigenous peoples are in part identifiable and, thus, branded by association with particular manifestations of their knowledge. When others make use of that knowledge without the permission of indigenous peoples and when the outputs resulting from the use of that knowledge are severed from the indigenous people, from whom the knowledge was sourced, two kinds of complaints arise. The first is that the indigenous peoples identity has been impacted adversely and the second is that no benefits that flow from the use are returned to the indigenous peoples. Thus, the reasons that indigenous peoples seek protection for traditional knowledge are many and varied, but broadly fall into two areas. The first is protection against offensive use of traditional knowledge, and the second is some kind of control that means indigenous peoples consent must be obtained for uses of their traditional knowledge. Consent may be separate from any benefit sharing or could be given with the condition that some kind of benefit returns to the indigenous people from the commercial use. Through these means and indigenous peoples own development of their knowledge, indigenous peoples hope to improve their economic and cultural situation. 

Because indigenous peoples’ own identity is marketable, it is a kind of brand. The attraction of the exotic, of the natural and previously ‘undiscovered’ remedy, are examples of how western consumers are attracted to the products of traditional knowledge. Around the world there are many examples of how westerners make use of indigenous culture. Some examples include the Fiat Motor Company using a Māori haka, the Lego company using Māori names, and the artwork of aborigines in Australia featuring on tourist advertisements. But what advantages and disadvantages lie in branding traditional knowledge in this way? Could indigenous peoples extract even greater value from their traditional knowledge by using the branding tools of intellectual property law? Those tools are primarily trade mark and geographical indications. Is either of these legal regimes of any assistance to protecting traditional knowledge? Is either of these legal regimes of any assistance to indigenous peoples’ development? 

There are broadly two ways in which branding traditional knowledge is relevant to these wider questions. The first is what might be described as active branding and the second is defensive branding. Active branding is when indigenous peoples seek to brand aspects of their own traditional knowledge in order to exploit that knowledge. Defensive branding techniques are those that may exist to prevent others from branding indigenous peoples traditional knowledge. This chapter discusses each of these approaches and the pros and cons of each of those approaches for indigenous peoples.

'Navigating the Landscape of Indigenous Knowledge – A Legal Perspective' by Natalie P. Stoianoff in (2012) 90 Intellectual Property Forum Issue 23 notes

 Australia is a party to a number of international treaties and declarations which recognise the significance of traditional and Indigenous knowledge and cultural expressions, and emphasise the need to respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities. For example, the Convention on Biological Diversity 1992 (CBD) provides member nations with the opportunity to establish regimes that would regulate foreign and domestic access to valuable genetic resources and traditional and Indigenous knowledge while establishing benefit-sharing mechanisms relating to that access. The CBD has also led to significant international debate on the interrelationship with intellectual property rights, particularly patent rights and plant breeders’ rights, which are often the end goal of the desire to access such genetic resources. Australia has been reluctant to take the necessary steps to adequately protect Indigenous knowledge and to ensure that equitable benefit sharing occurs in the use of that knowledge across the country. Conversely, some Indigenous communities have taken their own steps either to engage creatively with the intellectual property regime or to operate outside of that regime. This article will navigate this complex landscape and consider some of the solutions posed by other nations and regions of the world.

Parody

'Parody As Brand' (Stanford Public Law Working Paper No. 2170498) by Stacey Dogan and Mark Lemley comments (and subsequently available here) that

[US] Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody reflects too much uncertainty, leaving would-be parodists vulnerable to threats of legal action by trademark holders. In particular, given the flexibility of likelihood of confusion analysis, parodists’ fate is usually determined by the subjective judgment of courts, whose treatment of parody often seems to turn on instinct rather than trademark principles. We suggest some doctrinal tools that offer greater predictability and quicker resolution of parody cases, while avoiding some of the shortcomings of more traditional infringement analysis. … 

Parodies make fun of a thing by copying enough of it to make it recognizable while subverting the message of the original. Most people don’t like being made fun of. Some of those people turn to intellectual property (IP) law in an effort to suppress those parodies. 

When IP owners use copyright law to suppress parodies, the courts have generally rejected those claims. The Supreme Court in Campbell v. Acuff-Rose Music, Inc. gave parody a fairly wide exemption under the fair use doctrine, at least where the parody didn’t substitute for the original work (as it almost never will). More recently, the Seventh Circuit held in a case involving a South Park episode that parody could defeat a copyright claim on a motion to dismiss, because the court needed only to compare the copyrighted work with the parody in order to resolve the fair use issue. 

While copyright law gives broad rights of control over the creative work itself, trademark law protects consumers from confusion about the source of products. Given that, it might stand to reason that rejecting legal attacks on parodies is even more straightforward under trademark law; the interest of trademark law seems less connected to the suppression of parody than does copyright law. 

Nonetheless, courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. Our goal in this Article is to understand why, and to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite increasing attention to speech interests in recent years, the law’s treatment of parody reflects too much uncertainty, leaving would-be parodists vulnerable to threats of legal action by trademark holders. In particular, given the flexibility of likelihood of confusion analysis, parodists’ fate is usually determined by the subjective judgment of courts, whose treatment of parody often seems to turn on instinct rather than trademark principles. We suggest some doctrinal tools that offer greater predictability and quicker resolution of parody cases, while avoiding some of the shortcomings of more traditional infringement analysis.

Title

Habersberger J in Levy v Watt [2012] VSC 539 has found that the relatives of a deceased man were entitled to retain possession of a Rupert Bunny painting, Girl in Sunlight, stolen from the man in 1991 and subsequently bequeathed by an acquaintance of the deceased to the acquaintance's solicitor. The defendants - the executors and residuary beneficiaries of owner’s estate - did not learn the whereabouts of the painting until 2010 when police seized the painting.

The solicitor as plaintiff in this case claimed that the relatives' documentary title to the painting had been extinguished under Limitation of Actions Act 1958 (Vic). The Court disagreed, holding that s 27(b) of the Act operated to extend the limitation period.

It was held that the relatives' documentary title to the painting was superior to the solicitor's possessory title; the relatives were entitled to retain the painting. The Court indicated that

The parties to the proceeding are innocent of any wrongdoing and unfortunately one side has to lose. On the one hand, the plaintiff, Frank Ernest William Levy, a solicitor, was left the painting by a grateful client in his will. On the other hand, the defendants, Maxwell James Watt and Michael Ian Watt, are the executors and residuary beneficiaries of their uncle, Albert James Watt, from whom the painting was stolen in April 1991. 

The uncle purchased the work in 1953 from Melbourne auction house Decoration Co for 26 pounds 5 shillings. In 1991 the painting and a television set were stolen in a burglary of his house, timed between 11.00 and 11.20 am. The police investigation failed to identify the thief or to produce any information regarding the painting's whereabouts. The nephews continued their uncle’s efforts to locate the work, after his death in 1993, including offering a “substantial reward” and engaging ARM International Pty Ltd to undertake an investigation.

 In 2010, the nephews became aware that a major Rupert Bunny retrospective was to be held at the National Gallery of Victoria and again publicised the theft. Email to one of the defendants' daughter to those associated with the exhibition. Contact with an informant resulted in execution of a search warrant at the solicitor’s home, with the painting being found on display in the dining room. (The solicitor is not accused of stealing the work or knowingly receiving stolen property.) The stolen work was seized by the police. The solicitor then became aware that the painting had been stolen; he co-operated with the police in their investigations. He had gained possession of the work through the will of a deceased client.

The Court notes that

 On 18 June 2010, an interpleader hearing, initiated by Detective Senior Constable Katherine Laird under s 125 of the Police Regulation Act 1958, came before Magistrate Johnstone in the Magistrates’ Court. At the conclusion of that hearing on 18 June 2010, his Honour ordered that “the Rupert Bunny painting Girl in Sunlight be returned by Victoria Police to the Watts on the basis that they jointly and severally keep the painting until such time as ownership is determined by a court or the matter of ownership is not pursued within in [sic] a limited period of six months”. The Painting was also to be insured by the Watts for not less than $200,000. The period of six months within which Mr Levy [the solicitor] was to commence a proceeding to pursue ownership of the painting was included at the request of the Watts’ counsel and was not resisted by Mr Levy’s counsel.

On 29 September 2010, Mr Levy commenced this proceeding seeking a declaration that the defendants’ proprietary rights in the Painting had been extinguished and that Mr Levy was the owner of it. He also sought an order that the Painting be returned to him. It was pleaded in the statement of claim that if the Painting was removed without the consent of Mr James Watt on 11 April 1991 then there had been successive conversions of the Painting (by the thief in April 1991, by Mr Rand in about 1994 when he acquired the Painting, by the executors of Mr Rand’s estate when they obtained a grant of representation in February 1998 and by Mr Levy when he took physical possession of the Painting in early 2008) and that by operation of s 6 of the Limitation of Actions Act 1958, any title of the defendants to the Painting had been extinguished on the expiration of six years after 11 April 1991.

The plaintiff’s claim was based entirely on the operation of the Limitation Act, with his representatives arguing that any cause of action which the defendants may have had regarding the work had long since expired (under s 5(1)(a) of the Act) and that any title to the work had been extinguished under s6(2) of the Act. The solicitor’s possessory title to the work should prevail, as the defendants’ documentary title was extinguished upon expiration of six years from the date on which the painting was stolen, so that the solicitor's possessory title prevailed against the world at large. That conclusion was unaffected by the Magistrate’s order, which rendered the defendants “mere custodians” of the work pending the Supreme Court’s determination of the competing claims to the entitlement to the Painting. The defendants’ reliance on s 27(a) or 27(b) of the Act  to postpone the operation of the limitation period on an allegation of fraud could not succeed, because conversion was not an action “based upon” fraud and s 27(b) did not apply because the fact of the theft was not concealed from the uncle by fraud. The defendants could not prove that the plaintiff or any of his agents or persons through whom he claimed had committed any fraud. Using the Briginshaw standard the Court could not place any weight on the defendants’ circumstantial case for a postponement of the limitation period.

The defendants submitted that because the limitation period was postponed pursuant to s 27(a) or 27(b) it did not commence to run until May 2010 when the defendants learned who had possession of the work. The thief never had any valid title to the painting and thus - nemo dat quod non habet - could not pass a valid title to the solicitor. Alternately, if the defendants were unable to rely on the postponement provisions they could still succeed on the basis that they currently had possession of the work and the qualification of s 125 of the Police Regulation Act 1958 (Vic) – ie that a delivery order did not affect the rights or liabilities of persons claiming the goods or the person to whom such goods were delivered – did not assist the solicitor, because he had not been in possession of the work since the police lawfully executed the search warrant in May 2010. Possession was argued as giving the defendants a superior right to the painting unless the solicitor could establish title to it by showing that the thief was a bona fide purchaser for value without notice.

Labels

'Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence' (Edinburgh School of Law Research Paper No. 2012/25) by Liz Campbell explores

whether the presumption of innocence is compromised by State declarations that a person is other than innocent, but which are neither predicated on nor equivalent to a criminal conviction. The task ultimately is threefold: in a descriptive sense, to establish the existing parameters of the presumption, in particular tracing its incremental expansion by the European Court of Human Rights; secondly, to present a normative argument as to what I believe the presumption should also entail, drawing on its recent doctrinal extension but moving beyond this in certain respects; and then finally to ascertain whether any labels or declarations by the State either before or absent a finding of criminal liability are problematic as regards the presumption of innocence as I propose it should be construed, and what ought to be done about this.

Campbell concludes -

Labels in the criminal justice system have a declaratory function; offences thus need to be named and classified appropriately. Similar caution and fairness is imperative in the official classification and naming of persons based on their actions, given the meaning it may express to fellow citizens. Such labels or measures may be desirable: there is a weighty consequentialist argument for stigmatising certain behaviours on the basis that this is beneficial to society in terms of deterrence and retribution. Nevertheless, ascribing the label of ‘criminal’ risks breaching the presumption of innocence and its underlying values, even when this occurs outside of the criminal process. 

Moving from the traditional dichotomous conceptions of guilt and innocence, this paper draws on an understanding of the criminal justice system as involving a continuum of culpability and associated labelling. Using the presumption as an interpretative device allows us to get to the core of what is troubling about certain State practices. Beyond this, this paper presented an expanded interpretation of the presumption to take in persons who have not been charged, drawing on both its epistemic purposes and broader significance in terms of civic trust. 

Building on this understanding, the paper sought to determine whether certain expressions of suspicion through official labels or declarations of guilt engage or breach the presumption of innocence. At first blush, it might seem that attaching the label of arrestee, suspect, or accused speaks to the State’s suspicion of a person’s culpability or likelihood to offend, and thus distinguishes them from ‘truly’ innocent people who have never come to the attention of the police. By devising a typology focusing on stigma, state intention and public dissemination, this paper concludes that while the unfortunate effect of some measures by the State may stigmatise a person, this is not in breach of the presumption of innocence. Rather, the presumption is compromised only where the declaration involves a public expression of censure on the balance of probabilities, given that such State action usurps the role of the criminal courts and evades the associated protections through the creation of a ‘shadow criminal law’

Meth

Walter White on wheels? The National Drug Law Enforcement Research Fund (NDLERF) has released Evaluating drug law enforcement interventions directed towards methamphetamine in Australia, a 133 page report by Alison Ritter, David Bright and Wendy Gong on a study over 2008 and 2009.

The aims of the research were to inform drug law enforcement interventions by providing a rich description of the Australian methamphetamine supply chains and to conduct an initial economic evaluation comparing law enforcement interventions directed at the methamphetamine market.

The authors comment that

Governments and policymakers are interested in determining which interventions are more or less effective than others, such that the scarce funding resources can be allocated in the most efficient manner possible. There is scant research available to law enforcement to guide such decisions. The main impediments to such research are the fundamental methodological challenges inherent in such an undertaking. This project is an attempt to conduct a preliminary analysis comparing the costs and impacts of different types of law enforcement.

It is a ground-breaking study as this has not been previously attempted and it should be seen as the initial development of a methodological approach that can be improved upon with subsequent research. The project aimed to determine the relative cost-to-impact ratios of different law enforcement strategies aimed at reducing methamphetamine production and distribution. In an environment focused on efficiency in resource allocation, it is hoped that this research will provide the impetus for further research on the effectiveness of drug law enforcement. As the results of such research accumulate, it is hoped that policymakers will be able to use the information to improve decision making on law enforcement investment.

The NDLERF states that the report -

provides both a rich description of the Australian methamphetamine supply chains and also conducts an economic evaluation of four law enforcement interventions directed at different levels of the illegal methamphetamine market.

There are two supply chains for methamphetamine in Australia: the first commences offshore and includes the importation of end-product and precursors; the second supply chain commences domestically (with sourcing of precursors) and involves domestic manufacture and distribution. The supply chains converge at the wholesale level within Australia. The report examines found evidence of diverse organised crime groups involved in methamphetamine manufacture and trafficking. These organised crime groups will cooperate with each other for financial gain. The methamphetamine market is characterised by corporate organisational structures with vertical integration, such as Outlaw Motorcycle Gangs; freelance structures via sole operators, such as “meth cooks”; and communal organisations tied with common backgrounds/values (ethnically-based organised crime groups).

The study also assesses the difference between four drug law enforcement interventions in terms of the impact (value of seized product) against expenditure (government costs). The economic model results indicated that the highest ranked intervention, in terms of average costs to impact, was clandestine laboratory detections. Ranked second was end-product trafficking seizures (domestic); third was precursor seizures and the lowest ranked intervention relative to all four was end-product border seizures, but these last two were not substantially different.

In discussing prices the authors comment that -

Three prices exist in the methamphetamine market—prices for precursors, prices for the crystal methamphetamine form and prices for the non-crystal methamphetamine form. Our research on precursor prices reveals that prices of precursors purchased offshore are very inexpensive, whereas within Australia, high prices are paid. This may reflect successful law enforcement efforts at reducing importation of precursor chemicals.

An important feature for any illicit market is the extent of profitability. Profitability is measured by the degree of mark-up in price between two levels of the market. However, we do not have a direct measure of markups per se. An indirect calculation is the quantity discount coefficient, which is derived from the price–weight relationship at different weights. The quantity discount can be calculated on two aspects of price - the changes in the unit price (which reflects the extent of a change in price per standard unit purchased), or the changes in the total price (which reflects margins on total amount sold). We estimated the quantity discount coefficient for both unit price and for total price across the two methamphetamine forms (crystal and non-crystal). This is the first attempt to conduct such analyses for methamphetamine in Australia.

The results of the regression showed that the quantity discount coefficient β1 (quantity discount estimate) for total transaction price for crystal methamphetamine was 0.8727 and for the non-crystal form of methamphetamine, it was 0.8453 (if the coefficient is equal to 1.00 then there is no difference between price paid and price sold). The goodness of fit is reasonably high (R2 above 0.90 in both cases). Comparing the quantity discount coefficient with other drugs in other countries, the Australian coefficient is large, indicative of lower unit price change. This means that running a methamphetamine drug business in Australia may pose lower risks than in the United States, although this is completely suppositional.

Another implication from these results is that methamphetamine seems to be subject to the following pricing rule - for every 10% increase in transaction size, the unit price will fall by 1.21% for crystal form and by 1.47% for non-crystal form. Interestingly, these are smaller than for cannabis (2.5%). To calculate the mark-ups from the quantity discount coefficient, one needs to know the ‘branching ratio’ (ie how many times the drugs are cut during distribution by one dealer). However, the branching ratio is not known, so we use hypothetical numbers. Thus, for example, with a cut between four to 20 times for the crystal form, the mark-ups can range from 119% (at 4 times) to 146% (at 20 times). If the branching ratio is larger, the mark-ups will be higher.

The regression results can also be used to compare the price of crystal and non-crystal. Those prices vary according to their weight, as expected. Our research shows that price differences between crystal and non-crystal forms of methamphetamine are not large at lower seizure weights, while at higher weights (eg at a weight of a pound (455g)) the crystal form of methamphetamine has a higher price than the non-crystal form (about 1.5 times higher). At higher market levels, this price differential is even greater, with crystal methamphetamine being worth almost double that of non-crystal methamphetamine.

Finally, we were unable to determine whether criminal networks adjust price, purity and/or both in order to maximise profits. Our purity analyses revealed that purity varied greatly across weight. In addition, our analysis did not support the assumption of higher weight associated with higher purity. Furthermore, the data analysed here reinforces that caution needs to be taken when using average purity (which may be highly misleading).

Finally, future research should incorporate purity with price, if data which matches purity with price can be obtained.

They go on to comment that -

According to reports from key informants (KIs), the increasing restrictions on the availability of pseudoephedrine in Australia (eg Project STOP, rescheduling of pseudoephedrine-based products) have resulted in a trend of increasing bulk importations of raw pseudoephedrine. With this shift, the interception of precursors at the border will be a priority for law enforcement agencies. Key informants also reported an increase in the use of pre-precursors within domestic manufacture. There are multiple sources for precursors and reagents (eg legitimate industry, break and enter, shell companies etc). Techniques and strategies used by criminal groups to obtain the required chemicals are likely to continue to evolve. For example, the use of pre-precursors in manufacture is now growing as the availability of precursors is restricted. 

The methamphetamine market is dynamic and constantly changing. For example, when a few ‘cooks’ are imprisoned, their preferred methods are no longer common; but the processes can resurface when cooks with specialised knowledge and skill are released from prison. Pseudo-runners appear to be a declining trend (given Project STOP and other restriction on the availability of pseudoephedrine). There has also been a trend back to P2P-type methods in response to restrictions on the availability of pseudoephedrine. Drug law enforcement will be required to focus on the precursors and manufacture techniques utilised for P2P manufacture. There is some regional variation in manufacture methods across Australia. This may be to do with ‘cooks’ availability and their preferred method, but the variation also relates to access to chemicals (eg the Nazi method predominates in Western Australia possibly due to ready availability of ammonia). New methods continue to be invented and used within Australia. Law enforcement will continue to rely on intelligence gathering about manufacture methods to keep abreast of new manufacture processes as they emerge. 

The shift to importation of raw pseudoephedrine in bulk and the increased use of P2P methods may lead to an increase in the number of large clandestine laboratories in Australia. The dismantling of clandestine laboratories will increasingly rely on successful investigations into organised criminal groups who operate large clandestine laboratories. 

The separation of manufacture into discrete steps at different sites may create the impression of small timers but in fact, there is evidence that they can be coordinated by large syndicates which split up the manufacture process as a risk management strategy.